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  • 09 Mar 2018 10:22 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today: 

    Appeal No. 112,361: State of Kansas v. Roy D. Wetrich
     
    The Supreme Court affirmed a Court of Appeals' decision that Johnson County District Court incorrectly sentenced Wetrich because it incorrectly classified a 1988 Missouri burglary conviction as a person felony and thereby miscalculated his criminal history score. For an out-of-state conviction to be comparable to a person offense under the Kansas criminal code, the elements of the out-of-state crime must be identical to or narrower than the elements of the Kansas crime to which it is being compared. Under this test, Wetrich's Missouri burglary conviction should have been classified as a nonperson felony.

    Appeal No. 112,544: State of Kansas v. Randy D. Sturgis
     
    The Supreme Court affirmed Sturgis' convictions in Sedgwick County for criminal possession of firearm and theft but reversed the sentence and remanded to district court for resentencing. The court ruled the district court incorrectly classified a previous Michigan home invasion conviction as a person felony and thereby miscalculated Sturgis' criminal history score. For an out-of-state conviction to be comparable to a person offense under the Kansas criminal code, the elements of the out-of-state crime must be identical to or narrower than the elements of the Kansas crime to which it is being compared. Under this test, Sturgis' Michigan home invasion conviction should have been classified as a nonperson felony.

    Appeal No. 113,545: State of Kansas v. Charles H. Moore
     
    The Supreme Court reversed Court of Appeals and Sedgwick County District Court decisions regarding Moore's sentence and remanded for resentencing. The court ruled the district court incorrectly sentenced Moore because it incorrectly classified a previous Oregon first-degree burglary conviction as a person felony and thereby miscalculated his criminal history score. For an out-of-state conviction to be comparable to a person offense under the Kansas criminal code, the elements of the out-of-state crime must be identical to or narrower than the elements of the Kansas crime to which it is being compared. Under this test, Moore's Oregon first-degree burglary conviction should have been classified as a nonperson felony

    Appeal No. 113,881: State of Kansas v. Derrick Buell
     
    The Supreme Court reversed Court of Appeals and Shawnee County District Court decisions regarding Buell's sentence and remanded for resentencing. The court ruled the district court incorrectly sentenced Buell because it incorrectly classified two previous Florida burglary juvenile adjudications as person felonies and thereby miscalculated his criminal history score. For an out-of-state adjudication to be comparable to a person offense under the Kansas criminal code, the elements of the out-of-state crime must be identical to or narrower than the elements of the Kansas crime to which it is being compared. Under this test, Buell's Florida burglary adjudications should have been classified as nonperson felonies.

    Appeal No. 112,841: State of Kansas v. Pablo Alberto Gonzalez
     
    The Supreme Court affirmed Gonzalez' conviction in Pottawatomie County for unintentional second-degree murder in the death of Levi Bishop after a gun discharged while they were celebrating New Year's Eve. Gonzalez, whose blood alcohol level was .25 when interviewed by law enforcement, claimed he shot Bishop when a gun was fired accidentally while the two were engaged in horseplay. On appeal, Gonzalez argued the unintentional second-degree murder statute was unconstitutionally vague, the evidence against him was insufficient, and the trial court made mistakes in responding to a jury question and in failing to give a limiting instruction about certain evidence. In its unanimous decision, the court rejected each argument. As to the statute's constitutionality, the court noted a previous version of the law had been upheld and that more recent revisions did not change that analysis.

    Appeal No. 115,972: State of Kansas v. Cedric M. Warren
     
    The Supreme Court remanded the case for resentencing after it found Wyandotte County District Court made an improper de facto modification to the sentence. Warren's original hard-50 sentence for premeditated first-degree murder was held unconstitutional and vacated following a U.S. Supreme Court ruling. Upon resentencing, the district court corrected the length of time for Warren's premeditated first-degree murder sentence but also modified it to run consecutive — rather than concurrent — to his other convictions. The court ruled this was inconsistent with the intent of the Legislature in enacting the Kansas Sentencing Guidelines Act.

    Kansas Court of Appeals decisions released today 

  • 08 Mar 2018 9:54 AM | Tiffany Fisher (Administrator)

    The Topeka Bar Association will host an Expungement Day project in April 2018.  The Expungement Day project is a pro bono service project designed to offer individuals the opportunity to have certain qualifying criminal arrests, convictions and diversions expunged through a simplified process.  This may assist in removing barriers which prevented employment and housing opportunities.  Only adult arrests, convictions and diversions occurring in Shawnee County qualify for this project.  Federal and municipal court cases cannot be addressed at this project.

    The Expungement Day project is possible through the combined efforts of members of the Topeka Bar Association, Third Judicial District Court, office of Shawnee County District Attorney Mike Kagay, Third Judicial District Public Defender Office, Kansas Legal Services, Washburn Law School and Butler and Associates.

    The event to submit expungement petitions to the Court will be held on Friday, April 20, 2018 from 9:00 a.m. through 3:00 p.m. at the Agriculture Hall building located at the Expo Center.  Entry is at 17th and S.W. Exoduster Dr.  Individuals are encouraged to obtain and fill out the necessary forms prior to arriving.  The forms can be downloaded from the Shawnee County District Attorney’s web site at http://www.snco.us/da/expungements.asp.  Volunteers will be available to provide limited assistance in completing the expungement application forms.

    The cost for filing an expungement is $195 per case.  Poverty and hardship affidavits will be available for those individuals who qualify and cannot pay the required filing fee and surcharge. Please bring legal photo identification for the affidavit of undue hardship. Cash payment will not be accepted.  Payment may be made by personal check, money order or cashier’s check.

    After filing the necessary petition for expungement, every individual will be scheduled for an expungement hearing between 8:30 a.m. and 4:30 p.m. on June 25 or 26, 2018, for final determination on whether the petition should be granted.  Prior to the hearing date, a review will be conducted to determine if there are any outstanding costs owed in the case and if the individual qualifies for an expungement.         

    Individuals who filed an expungement petition that is not objected to by the Shawnee County District Attorney, will still need to attend the hearing and sign the necessary expungement order.  Any expungement petition that is objected to will then proceed to hearing at the scheduled time and date.

    The Topeka Bar Association will be holding informational meetings to explain the Expungement Day project on Thursday, March 29, 2018 from 7 p.m. through 8:45 p.m. and on Friday, April 13, 2018 from 3 p.m. through 5 p.m. in Room 101B at the Topeka Shawnee County Public Library located at 1515 SW 10th Ave.

  • 09 Nov 2017 12:34 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today: 

    Appeal No. 107,786: State of Kansas v. Djuan R. Richardson 

    In an opinion written by Justice Caleb Stegall, the Supreme Court affirmed the Sedgwick County District Court's denial of Richardson's motion to withdraw guilty plea to two violations of the Kansas Offender Registration Act. Relying on its recent decision in State v. Meredith, 306 Kan. 906, 399 P.3d 859 (2017), a majority of the court held the Legislature intended the Kansas Offender Registration Act to be nonpunitive and Richardson failed to demonstrate by the clearest proof that Kansas Offender Registration Act registration has a punitive effect on drug offenders. Justices Beier, Rosen, and Johnson dissented.

    Appeal No. 108,233: Edmond L. Hayes v. State of Kansas

    In an opinion written by Justice Caleb Stegall, the Supreme Court affirmed the Sedgwick County District Court's summary denial of Hayes' untimely K.S.A. 60-1507 motion. The court held Hayes did not assert a proper ex post facto challenge to the 2006 amendments to the Kansas Offender Registration Act because those amendments were in effect at the time Hayes violated the Kansas Offender Registration Act. Justice Johnson concurred in the result.

    Appeal No. 117,361: In the Matter of Lawrence E. Schneider

    Schneider, of Topeka, was publicly censured for violations of the Kansas Rules of Professional Conduct governing communication and diligence.

    Kansas Court of Appeals decisions released today 


  • 09 Nov 2017 12:33 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today: 

    The first case was argued in a March 30, 2017, special session at Southwestern College in Winfield.

    Appeal No. 112,035: State of Kansas v. Marcus Gray
    In a unanimous decision written by Justice Marla Luckert, the Supreme Court ruled that a defendant may move to suppress evidence found during a traffic stop on a theory that law enforcement officers violated Kansas's law against bias-based policing.

    The court explained that Kansas law permits a defendant aggrieved by an "unlawful" search and seizure to move for suppression of any evidence found — and "unlawful" can refer to both a violation of the Constitution or a violation of state law. Thus, if police officers violated a Kansas state law regarding bias-based policing, such as by using race or other bias to determine whether there was probable cause for a stop or search, a defendant could pursue a suppression remedy to address that violation.

    In Gray's case, the Harvey County District Court credited the arresting officer's testimony that Gray was not stopped "because of his race," since there had been a traffic infraction justifying the stop. The Supreme Court stated it had no reason to doubt this credibility determination, but that it was not the right inquiry. The question was not whether Gray was stopped "because of" his race (i.e., whether race was the cause for the stop), but whether the police officer unreasonably used race in deciding to initiate an enforcement action. The Supreme Court vacated Gray's convictions and remanded to the district court for another hearing on the motion to suppress.

    Appeal No. 110,048: State of Kansas v. Aaron M. Sayler 
     
    The Supreme Court affirmed Sayler's conviction in Kingman County District Court for failing to register as an offender under the Kansas Offender Registration Act. Sayler claimed the district court did not have jurisdiction to decide his case because the criminal complaint failed to allege that he resided in Kingman County. He also argued the jury was required to find he resided in Kingman County.
     
    In a unanimous decision written by Justice Dan Biles, the court rejected both arguments. The court held the district court had jurisdiction over Sayler's case because that authority comes from the state Constitution but not from a charging document. As to the second claim, the court held Sayler could not show clear error. Sayler failed to show the jury verdict would have been different if the instruction were written as Sayler claimed it needed to be.

    Appeal Nos. 107,114 and 107,115: State of Kansas v. Willie J. Scuderi

    The Supreme Court affirmed Scuderi's convictions of two counts of failing to register in Reno County as a drug offender, as required by the Kansas Offender Registration Act. Scuderi claimed his convictions were ex post facto punishment for his 2002 conviction of possession of methamphetamine with intent to sell since the registration requirement did not exist at the time of original conviction on the underlying drug offense. He also claimed his sentence was improperly calculated using his criminal history score and that one of his offender registration convictions was based on a complaint that failed to allege he resided in Reno County.

    The court rejected each of these claims based on existing caselaw. Justices Carol Beier, Eric Rosen, and Lee Johnson dissented on the ex post facto issue. They agreed with Scuderi on that point.

    Appeal No. 113,104: Sharron Jenkins v. Chicago Pacific Corporation, et al
     
    The Supreme Court affirmed a decision by the Jackson County District Court quieting title to the land underlying a now-abandoned railway that once ran through the town of Holton. The dispute centered on whether an 1886 deed to the railroad company conveyed the property for use as a right of way. The court held that it did.

    In a unanimous decision written by Justice Dan Biles, the court held the language in the 1886 deed and longstanding Kansas caselaw demonstrated the railroad acquired only an easement in the property originally and the land reverted to the landowners when the railroad quit operating the railroad.

    Jenkins claimed ownership to the strip of land through a series of quitclaim deeds that originated with the railroad. But the court agreed with the district court, which found that when the railroad quitclaimed its interest to the company from which Jenkins acquired her interest, "the railroad deeded land it was not legally capable of deeding." 

    Kansas Court of Appeals decisions released today 


  • 25 Oct 2017 9:33 AM | Tiffany Fisher (Administrator)

    As of November 1, 2017, the address for the Topeka Bar Association will be:

    700 SW Jackson, Ste. 209, 

    Topeka, KS 66603

    The office phone number and email address will remain the same.

    The TBA Office will be closed October 30 - November 3, 2017 as it moves.

  • 15 Sep 2017 10:07 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decision today: ​

    Appeal No. 112,782:  State of Kansas v. Shawn Malik Brown
    In a unanimous opinion written by Justice Caleb Stegall, the court affirmed Shawn Malik Brown's convictions for two related felony murders that were consolidated for trial in Sedgwick County. In late 2012. Brown shot and killed Adji Ibraham-Tampone and stole his Cadillac and cell phone. A few days later, Brown drove his accomplices to and from the shooting death and attempted robbery of Shawn Rhone. On appeal, Brown challenged the denial of his motion to suppress, claiming he was misinformed about his Miranda right to counsel when a detective said a lawyer would be appointed for Brown if he was charged with a crime. The court disagreed, holding the Miranda warnings in their totality reasonably conveyed Brown's right to counsel. The court also rejected Brown's challenges to the jury instructions and the sufficiency of the evidence.

    Kansas Court of Appeals decisions released today 


  • 08 Sep 2017 1:26 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today: ​

    Appeal No. 110,702: State of Kansas v. Joshua Harold Watkins
     
    The Supreme Court affirmed a Reno County District Court judge's order that Watkins be required to register as a violent offender under the Kansas Offender Registration Act after the judge found he used a vehicle as a deadly weapon to commit an aggravated assault on a law enforcement officer. Watkins claimed a jury instead of the judge must make the factual finding that he used a deadly weapon.
     
    A majority of the court held it would not disturb the judge's order because Watkins raised the issue for the first time on appeal and did not develop an evidentiary record in the district court to overcome prior caselaw that the Legislature intended the Kansas Offender Registration Act to be a regulatory scheme that is civil and nonpunitive. The majority noted that under existing U.S. Supreme Court precedent, only the facts necessary to increase the punishment for an offense other than a prior conviction must be established by a guilty plea or proved beyond a reasonable doubt to a jury.
     
    The majority opinion, written by Justice Dan Biles, held that since registration is presumed not to be punishment, Watkins could overcome that presumption only by the clearest proof, which was lacking because Watkins did not raise the issue until he appealed. Joining in the decision written by Justice Biles were Chief Justice Lawton Nuss and Justice Marla Luckert. Senior Judge Michael J. Malone concurred in the majority's outcome based on recent prior precedent.
     
    In dissenting, Justice Carol Beier argued the state's offender registration requirements are "maximally invasive, maximally pervasive, and infinitely more public" and should be considered punishment. She was joined in dissent by Justice Eric Rosen and Justice Lee Johnson.   
     

    Appeal No. 111,904: State of Kansas v. Donaldo Morales
     
    The Supreme Court reversed a Court of Appeals decision that had affirmed Morales' convictions in Johnson County District Court on one count of identity theft and two counts of making false information. The State's basis for the charge was Morales' use of a Social Security number that did not belong to him to obtain employment at a restaurant.
             
    At issue on appeal was whether the prosecution was preempted by federal immigration law. Morales argued that because he had used the Social Security number to establish his eligibility to work in the United States, an area of the law regulated by the federal government, the State could not prosecute him for the crimes.
     
    A majority of the Supreme Court agreed. The court held that such a prosecution is expressly preempted by the federal Immigration Reform and Control Act of 1986. Under the federal act, employment forms used to establish employment eligibility and any information contained in such forms may not be used for any purpose other than enforcement of federal immigration law.
     
    Because Morales' prosecution was preempted by federal law, the court reversed his convictions.

    Appeal No. 112,322: State of Kansas v. Guadalupe Ochoa-Lara
     
    The Supreme Court reversed a Court of Appeals decision that had affirmed Ochoa-Lara's convictions in Johnson County District Court on two counts of identity theft. The State's basis for the charges was Ochoa-Lara's use of a Social Security number that did not belong to him to obtain employment at a restaurant.
             
    At issue on appeal was whether the prosecution was preempted by federal immigration law. Ochoa-Lara argued that because he had used the Social Security number to establish his eligibility to work in the United States, an area of the law regulated by the federal government, the State could not prosecute him for the crimes.
     
    A majority of the Supreme Court agreed. The court held that such a prosecution is expressly preempted by the federal Immigration Reform and Control Act of 1986. Under the federal act, employment forms used to establish employment eligibility and any information contained in such forms may not be used for any purpose other than enforcement of federal immigration law.
     
    Because Ochoa-Lara's prosecution was preempted by federal law, the court reversed his convictions.

    Appeal No. 112,502: State of Kansas v. Ramiro Garcia
     
    The Supreme Court reversed a Court of Appeals decision that had affirmed Ramiro's conviction in Johnson County District Court on one count of identity theft. The State's basis for the charge was Garcia's use of a Social Security number that did not belong to him to obtain employment at a restaurant.
             
    At issue on appeal was whether the prosecution was preempted by federal immigration law. Garcia argued that because he had used the Social Security number to establish his eligibility to work in the United States, an area of the law regulated by the federal government, the State could not prosecute him for the crime.
     
    A majority of the Supreme Court agreed. The court held that such a prosecution is expressly preempted by the federal Immigration Reform and Control Act of 1986. Under the federal act, employment forms used to establish employment eligibility and any information contained in such forms may not be used for any purpose other than enforcement of federal immigration law.
     
    Because Garcia's prosecution was preempted by federal law, the court reversed his conviction.

    Kansas Court of Appeals decisions released today 


  • 30 Aug 2017 4:24 PM | Tiffany Fisher (Administrator)

    Greetings from the Shawnee County District Court:

    I want to take this opportunity to pass on some information that will be helpful to the bar:

    1. If you are receiving e-file notices that you believe to be in error because you have withdrawn from that case, please do the following:

    a. Double check the case filings to make certain you have actually withdrawn from the case and have done nothing to re-enter your appearance.  If you have not withdrawn, and you wish to withdraw, please file the necessary Motion and go from there;

    b. If you have withdrawn, call the District Court Clerk's office and request the clerk to "uncheck the box" by your name so you will no longer receive notice of action in that case.

    Please understand this procedure must be done for each case. It cannot be done on a block basis. Therefore, you should have the case name and number available when you call the clerk's office.

    For civil cases, call 251-5158; for criminal cases, call 251-5157; for domestic cases, call 251-5159, for limited actions cases, call 251-5154; for probate and juvenile cases, call 251-5156; for traffic cases, call 251-5155.

    2. All Returns of Service of Process are listed on e-flex in the "History" tab. You can also find them in the filing report for a specific case.  These Returns of Service will no longer be snail-mailed by the Court 

    Speaking of Returns of Service, please make sure every Return you generate has a caption and case number at the top of the page.  Returns come back separately, so the Return will be an orphan without this identifying information.

    3. The Shawnee County Court Website (www.shawneecourt.org) will soon include all active Administrative Orders issued by the Shawnee County District Court.

    4. Please review the recently-added Administrative Order 2017-107, which addresses the ways in which Shawnee County District Court will accept self-represented litigant approval of proposed orders on e-filed documents.  

    Thank you,

    Evelyn Z. Wilson

    Chief Judge

    Kansas Third Judicial District

    Shawnee County Courthouse

    200 SE 7th Street, Room 401

    Topeka, Kansas  66603-3922

    (785) 251-4369

    ewilson@shawneecourt.org
  • 25 Aug 2017 11:17 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today: ​

    Appeal No. 109,272:  State of Kansas v. Rayburn Tappendick Jr. 
    The Supreme Court affirmed a Saline County District Court judge's order that Tappendick be required to register as a sex offender under the Kansas Offender Registration Act. Tappendick pleaded no contest in 2011 to two counts of aggravated indecent liberties with a child for offenses committed in 2008. At the time of his plea, the Kansas Offender Registration Act required lifetime registration.
     
    On appeal, Tappendick claimed the lifetime registration requirement violated the ex post facto clause of the U.S. Constitution, which prohibits legislatures from retroactively punishing previously committed crimes, because at the time he committed the crimes, the Kansas Offender Registration Act required only a 10-year registration period. A Court of Appeals panel declined to consider Tappendick's claim based on the general rule that a new legal theory may not be asserted for the first time on appeal. The panel noted Tappendick failed to show his claim invoked any of the exceptions to the general rule.
     
    In his petition for review, Tappendick asked the Supreme Court to review the Court of Appeals decision, asserting that the panel incorrectly ruled that he could not raise the ex post facto claim for the first time on appeal. 
     
    The Supreme Court opinion, written by Justice Dan Biles, noted Tappendick merely mentioned the exceptions to the general rule and argued without any explanation or authority that the new issue invoked the exceptions but made no effort to challenge the panel's rationale for declining to address his claim. The court held Tappendick's petition for review failed to challenge the panel's decision not to consider his claim raised for the first time on appeal.

    Appeal No. 111,671, Staci Russell v. Lisa May, M.D., Victoria Kindel, M.D., and Tana Goering, M.D.

    In an opinion written by Justice Marla J. Luckert, the Supreme Court considered claims brought by Russell against three health-care providers in Sedgwick County. Russell alleged three doctors' professional negligence delayed diagnosing her breast cancer, lessening her chance for recovery and long-term survival.

    The Supreme Court overturned a grant of judgment as a matter of law in favor of Russell's primary care provider, Dr. Goering. The court determined the district court erred in concluding there was no legally sufficient evidence from which a reasonable jury could find the doctor owed or breached a duty of care, and the Court of Appeals erred when it found that there was no legally sufficient evidence to support a reasonable jury finding causation when the patient was later provided follow-up care by another doctor. The court rejected Dr. Goering's argument that harmless error could preserve the judgment because it could not determine the basis for the jury's finding of no fault on the part of the other doctors.

    The court also rejected Russell's request that the case be remanded for trial against all three health-care providers. Instead, the court remanded for retrial only against Dr. Goering, the doctor who was prematurely granted judgment as a matter of law.

    Kansas Court of Appeals decisions released today 
  • 18 Aug 2017 10:28 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today: ​

    Appeal No. 108,103: State of Kansas v. Phoebe Shaylor
    The Supreme Court affirmed Shaylor's conviction in Reno County District Court for failure to register as a drug offender under the Kansas Offender Registration Act. Shaylor claimed she should not have been required to register because the requirement was imposed after her original conviction for manufacture of methamphetamine in 2002. In 2007, the Legislature amended the law, imposing the requirement on persons convicted of unlawful manufacture of controlled substances or controlled substance analogs "unless the court makes a finding on the record that the manufacturing or attempting to manufacture such controlled substance was for such person's personal use." Shaylor argued her conviction for failing to register violated the ex post facto clause of the United States Constitution, which prohibits Legislatures from retroactively punishing previously committed crimes. The principal issue for the court was whether registration requirement was punishment for the original manufacture of methamphetamine conviction. A divided Supreme Court held Shaylor failed to demonstrate that it was.
     
    Writing for the majority, Justice Dan Biles noted under existing Kansas caselaw regarding sex offenders that registration was a nonpunitive civil regulatory requirement and not punishment. Based on that precedent, Biles continued, Shaylor needed to make a sufficient evidentiary showing in the district court to prove the prior caselaw was inapplicable to drug offenders. Since Shaylor did not do that, and raised the issue for the first time on appeal, the majority held her constitutional challenge was not valid and affirmed her conviction. Biles was joined in this opinion by Chief Justice Lawton Nuss, and Justices Marla Luckert and Caleb Stegall.

    Dissenting, Justice Carol Beier argued registration requirements were punishment for all offenders and could not be applied retroactively. She was joined by Justices Eric Rosen and Lee Johnson.

    Kansas Court of Appeals decisions released today 


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