The Kansas Supreme Court released the following published decisions today:
Appeal No. 113,060: Dario Lozano v. Oscar Alvarez and Aracely Alvarez
A unanimous Supreme Court held that the Kansas savings statute, K.S.A 60-518, could only be used to resurrect a case that has been dismissed for a reason other than upon the merits during the initial six-month window following the original dismissal. Lozano's civil case in Ford County District Court had been dismissed twice for failure to prosecute and was outside the applicable statute of limitations and more than six months after the first dismissal. The court held that the second dismissal did not trigger another grace period in which to invoke K.S.A. 60-518 to reinstate the case, and Lozano was time-barred from reinstating.
Appeal No. 113,684: State of Kansas v. Troy A Robinson
In a 6-1 decision written by Justice Eric Rosen, the Supreme Court affirmed Robinson's convictions in Shawnee County District Court of first degree murder, aggravated burglary, and misdemeanor theft.
The case stems from an incident in which Robinson, who earlier in the day had first contacted the victim on a website, claimed to have "snapped" and beaten and stabbed the victim after she scratched him while the two were engaged in sex at her home. Robinson also stole some of her belongings after the stabbing.
The majority held that the district court did not err in excluding evidence that Robinson believed would show the sex was consensual or by denying Robinson's request to ask the jury about specific mitigating factors The majority further held that the prosecutor did not err by making references to Robinson strangling the victim, by telling the jury that the murder was premediated because Robinson thought about it before he killed the victim, or by distracting the jury with a reference to Santa Claus. Finally, the majority held that the evidence was sufficient to sustain the burglary conviction, that retroactive application of K.S.A. 21-6620 did not violate the ex post facto clause of the United States Constitution, and that the State of Kansas provided reasonable notice it would seek a hard-50 sentence.
Justice Lee Johnson concurred and dissented, writing that the evidence was not sufficient to sustain the aggravated burglary conviction because the State of Kansas presented no evidence that the victim withdrew her consent for Robinson to enter her home and remain within her apartment. Also, while concurring in the result with regard to the adequacy of the hard-50 sentencing notice because the defense had ample time to prepare for sentencing, Justice Johnson commented that the State of Kansas acted contrary to the spirit of the noticing requirement when it claimed that it might not seek the hard-50 sentence as an argument to limit defense voir dire.
Appeal No. 113,775: State of Kansas v. Gary A Ditges
In a unanimous decision, the Supreme Court ruled in a Sedgwick County case that although courts must liberally construe pro se pleadings to give effect to the content, rather than the form, when a movant clearly asserts that his or her sentence is illegal under K.S.A. 22-3504, the pro se pleading cannot be construed as one under K.S.A. 60-1507. The court also ruled that the movant has the burden to show that a motion under K.S.A. 60-1507 that is untimely should be heard to prevent manifest injustice, and that the district court does not have an affirmative duty to eliminate any possibility of manifest injustice.
Appeal No. 113,799: State of Kansas v. King Phillip Amman Reu-El, formerly known as Phillip Cheatham
In a unanimous decision written by Justice Marla Luckert, the Supreme Court affirmed the Shawnee County District Court's refusal to permit King Phillip Amman Reu-El, formerly known as Phillip Cheatham, to withdraw his no-contest plea to capital murder and attempted murder.
Amman Reu-el had argued he should be permitted to withdraw his plea, even after sentencing, because he was misled and misinformed as to whether his plea would still permit him to pursue certain double jeopardy arguments on appeal. Amman Reu-el asserted he had been assured that his double jeopardy arguments would survive his plea, but, as he discovered later, Kansas law actually provides that by pleading guilty or no contest, a defendant waives all nonjurisdictional defects, including claims of double jeopardy.
The Supreme Court ruled that neither the plea agreement, defense counsel, nor the district court affirmatively misled Amman Reu-El or misrepresented the law, and in fact the district court was careful to caution Amman Reu-El that a no contest plea could affect not only his current appeal but his habeas corpus action that was simultaneously pending with the Supreme Court. Accordingly, the district court did not abuse its discretion in denying Amman Reu-El's motion to withdraw his plea.
Appeal No. 117,201: In the Matter of Alvin R. Lundgren
Attorney Alvin R. Lundgren of Veyo, Utah, was disbarred from the practice of law in Kansas for multiple violations of the Kansas Rules of Professional Conduct governing safekeeping property; reporting professional misconduct; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; failure to report action; and failure to notify Clerk of the Appellate Courts of change of address.
Appeal No. 117,357: In the Matter of Jeffery A. Sutton
Attorney Jeffery A. Sutton of Basehor was publicly censured for violations of the Kansas Rules of Professional Conduct governing communication and engaging in conduct prejudicial to the administration of justice.
Kansas Court of Appeals decisions released today State of Kansas
Office of Judicial Administration
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Topeka, Kansas 66612-1507