Saturday, October 01, 2016

No weighing of aggravating factors in Jessica's Law sentencing

Christina M. Kerls won in State v. McCormick, No. 109,985 (Kan. Sept. 9, 2016), obtaining a new sentencing hearing in a Sumner County rape prosecution. The KSC affirmed Mr. McCormick's convictions, but remanded for resentencing because the district court improperly considered aggravating factors when determining whether to grant a departure in the case. The KSC applied a recent case (blogged about here) and held that the district court applied the wrong standard:
The manner in which a crime is committed and the circumstances inherent in the crime are not inevitably limited to the strict legal elements of the offense. But where, as here, the district judge explicitly referred to the piece of evidence that persuaded him as an "aggravating factor," we cannot be wholly confident that the statutory command not to conduct weighing of aggravators and mitigators was followed. As we said in Jolly, the sentencing judge may consider the manner in which a crime is committed and the circumstances inherent in the crime, as well as whether mitigators that are substantial and compelling justify a departure from Jessica's Law. But the judge may not weigh aggravators and mitigators. That is exactly what the judge himself said he was doing in this case.
As a result, the case was remanded for resentencing using the correct standard.

Saturday, August 27, 2016

October 2016 KSC docket

Here are the criminal cases on the KSC docket for October 24-27, 2016. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live at the appellate court website (here) and archived (here) if you would like to watch any of these arguments.

October 24--Monday--a.m.

State v. Kristofer Wright, No. 112,635 (Sedgwick)
Direct appeal; premeditated first-degree murder
Michael P. Whalen
  • Denial of right to be present
  • Ineffective assistance of counsel on motion to dismiss
  • Denial of statutory speedy trial
  • Improper instruction on inference of premeditation
  • Prosecutorial misconduct
  • Improper instructions on "intentional"
State v. Zachary Eisenhour, Sr., No. 111,478 (Stafford)
Probation revocation appeal (petition for review)
Patrick H. Dunn
  • Lack of jurisdiction to revoke expired probation
  • Illegal sentence under double rule

October 25--Tuesday--a.m.

State v. Dominic Parry, No. 113,130 (Clay)
State appeal (petition for review)
Phylemon C. Yau
  • District court properly granted motion to suppress evidence (Fourth Amendment)
State v. Robert Sasser, No. 108,149 (Johnson)
Direct appeal (petition for review); burglary/criminal threat
Korey A. Kaul
  • Insufficient evidence
  • Improper testimony from victim regarding damage to property
State v. Cameron Howard, No. 110,439 (Johnson)
Direct appeal (petition for review); criminal possession of firearm
Craig M. Divine
  • Completed Missouri SIS probation is not a prior conviction
  • Failure to grant motion to suppress evidence (Fourth Amendment)
  • Improper exclusion of defense evidence

October 26--Wednesday--a.m.

State v. Jason Robinson, No. 110,040 (Wyandotte)
Direct appeal (petition for review); aggravated burglary/aggravated battery
Randall L. Hodgkinson
  • Violation of statutory speedy trial
  • Insufficient evidence of burglary
  • Aggravated battery statute is unconstitutionally vague
  • Improper instruction on bodily harm
  • Improper admission of prior bad act evidence
  • Failure to give limiting instruction
  • Denial of right to be present

October 27--Thursday--a.m.

Terry McIntyre v. State, No. 111,580 (Douglas)
K.S.A. 60-1507 appeal (petition for review)
Janine Cox (brief), Randall L. Hodgkinson (argue)
  • Whether retained counsel must be effective in K.S.A. 60-1507 hearing
State v. Phillip Cheatham, No. 113,799 (Shawnee)
Motion to withdraw plea
Meryl Carver-Allmond
  • Failure to allow withdrawal of no contest plea

Saturday, July 09, 2016

September 2016 KSC docket

Here are the criminal cases on the KSC docket for September 12-16, 2016. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live at the appellate court website (here) and archived (here) if you would like to watch any of these arguments.

September 12--Monday--a.m.

In re Todd Ellison, No. 112,256 (Sedgwick)
SVPA state appeal
Michael P. Whalen
  • District court correctly dismissed SVPA proceeding
Shannon Bogguess v. State, No. 111,299 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Michael P. Whalen
  • Failure to hold evidentiary hearing on IAC claim

September 13--Tuesday--a.m.

State v. Jack LaPointe, No. 112,109 (Johnson)
State appeal (petition for review)
Richard Ney
  • District court properly allowed DNA testing
State v. Brian Bailey, No. 112,888 (Johnson)
Motion to correct illegal sentence appeal
Catherine A. Zigtema
  • Improper restitution award
  • Failure to correct illegal sentence
State v. Maurice Stewart, No. 111,995 (Johnson)
Direct appeal; felony murder
Korey A. Kaul
  • Improper instruction regarding lesser-included offenses
  • Improper instruction excluding self-defense as a matter of law
  • Erroneous competency finding
  • Improper admission of blood spatter evidence

September 14--Wednesday--a.m.

State v. Nicholas Corbin, No. 113,585 (Saline)
Sentencing appeal
Joanna Labastida
  • Failure to find defendant intellectually disabled

State v. Dane Deweese, No. 112,372 (Saline)
Direct appeal; first-degree premeditated murder
Kurt P. Kerns (brief), Melanie S. Morgan (brief and argue)
  • Failure to disclose exculpatory evidence

September 15--Thursday--a.m.

State v. William Holt, II, No. 113,990 (Shawnee)
Sentencing appeal
Meryl Carver-Allmond
  • Improper restitution finding
State v. Casey Baker, No. 111,915 (Douglas)
Direct appeal; possession
Corrine E. Gunning
  • Failure to suppress evidence (Fourth Amendment)

September 16--Friday--a.m.

State v. Douglas Belt, No. 94,435 (Sedgwick)
Direct appeal; capital murder
Rebecca E. Woodman (brief), Sarah Ellen Johnson (brief and argue)
  • Multiplicity of capital murder and attempted rape
  • Insufficient evidence
  • Abatement of appeal on death of defendant


Saturday, May 14, 2016

Invited error doctrine does not apply to illegal sentence

Catherine A. Zigtema and Sarah Morrison Rapelye won in State v. Hankins, No. 109,123 (Kan. April 22, 2016), obtaining a new sentencing hearing in a Johnson County felony prosecution. On appeal, Mr. Hankins claimed that an Oklahoma deferred judgment should not be counted as a prior conviction. The COA had held that Mr. Hankins was precluded from making this argument under the invited error doctrine and also that he would lose on the merits. The KSC disagreed on both points.

On the procedural issue, the KSC applied recent precedent holding that "Kansas law is clear that a defendant can't agree to an illegal sentence." The KSC disagreed with the COA's distinction that the stipulation in this case was factual, which would be binding on the parties and court:
the stipulation of Hankins' attorney upon which the panel majority apparently relied was directed at a legal finding, not a factual one. After ascertaining that the parties had been provided an opportunity to look at the PSI, the district court recited the number of months' imprisonment within the presumptive gridbox for the base crime and the same information for the remaining nonbase crimes, before inquiring whether anyone disagreed with, or had anything to add to, the court's findings. The court did not ask if anyone disagreed with the existence of the convictions used to calculate the presumptive sentence; it asked if there was any disagreement with the computed presumptive sentence.
The computation of the presumptive term of imprisonment applicable to Hankins was a legal determination.
On the merits, the KSC distinguished the Oklahoma scheme from a deferred sentencing scheme:
The requirement for a judgment of guilt to trigger a "conviction" in Kansas is a critical point in our analysis because the Oklahoma deferred judgment statute specifically directs that an entry of judgment will not be entered for an offender who successfully completes a deferred judgment. The initial conditions are to be imposed "without entering a judgment of guilt." Then, upon successfully completing the deferred judgment, "the defendant shall be discharged without a court judgment of guilt." The State's argument that the journal entry in Hankins' case indicates that the district court adjudged Hankins guilty is simply unavailing. Such an action would have been statutorily prohibited, and we will not ascribe such unlawful conduct to the Oklahoma tribunal.
The KSC distinguished the instant case from precedents related to Missouri suspended sentencing scheme. The KSC held that the definition of "conviction" used in that case and noted that such reasoning actually supported a holding that the Oklahoma proceeding was not a judgment of guilt. So, as a result, the matter was remanded for a resentencing excluding the Oklahoma deferred judgment from criminal history.

Saturday, March 19, 2016

May 2016 KSC docket

Here are the criminal cases on the KSC docket for May 2-5, 2016. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live at the appellate court website (here) and archived (here) if you would like to watch any of these arguments.

May 2--Monday--a.m.

State v. Kyle Carter, No. 112,269 (Sedgwick)
Direct appeal; first-degree premeditated murder
Samuel Schirer
[Affirmed; Beier; September 30, 2016]
  • Prosecutorial misconduct
  • Preliminary instruction on reasonable doubt
  • Failure to give lesser-included offense instruction
  • Improper aiding and abetting instruction
State v. Quartez Brown, No. 113,253 (Sedgwick)
Direct appeal; felony murder
Korey A. Kaul
  • Failure to substitute counsel
State v. Jimmy Netherland, No. 112,806 (Shawnee)
Direct appeal; felony murder
Gerald E. Wells
[Affirmed; Beier; September 30, 2016]
  • Insufficient evidence
  • Prosecutorial misconduct

May 3--Tuesday--a.m.

State v. Jose Solis, No. 111,556 (Johnson)
Direct appeal; premeditated first-degree murder
Carol Longenecker Schmidt
[Affirmed; Johnson; September 9, 2016]
  • Improper admission of prior bad act evidence
  • Failure to give limiting instruction
  • Failure to give lesser-included offense instructions
  • Improper reasonable doubt instruction
State v. Tony Schaefer, No. 109,915 (Shawnee)
Direct appeal (petition for review); motion to withdraw plea
Johnathan M. Grube (brief); Carol Longenecker Schmidt (argue)
  • Failure to allow withdrawal of plea
  • Failure to inform defendant of possibility of civil commitment
State v. Joseph Mattox, No. 111,162 (Johnson)
Direct appeal; premeditated first-degree murder
Catherine A. Zigtema
  • Improper imposition of hard-50 sentence
  • Improper instructions on intent, premeditation, aiding and abetting, etc.
  • Failure to accept plea to non-homicide charges
  • Failure to suppress statements
  • Improper admission of statements obtained during psychological exam

May 4--Wednesday--a.m.

State v. Antonio Brown, Sr., No. 111,166
Direct appeal; felony murder
Peter Maharry
  • Failure to suppress statements
  • Improper imposition of upward departure
  • Failure to give lesser-included offense instructions
  • Insufficient evidence of obstruction
State v. Michael Staten, No. 108,305 (Wyandotte)
Direct appeal (petition for review); aggravated battery
Rebecca L. Kurz (brief); Michael P. Whalen (argue)
[Affirmed; Rosen; August 12, 2016]
  • Instruction on burden of proof for self defense
  • Prosecutorial misconduct
  • Failure to substitute counsel
State v. Troy Love, II, No. 112,611 (Saline)
Direct appeal; felony murder
Peter Maharry
  • Improper admission of autopsy photos
  • Improper exclusion of evidence of civil suit
  • Prosecutorial misconduct
  • Failure to give lesser-included offense instructions
State v. Deaarion Potts, No. 113,302 (Wyandotte)
Direct appeal; felony murder
Samuel Schirer
[Affirmed; Rosen; June 24, 2016]
  • Insufficient evidence
  • Failure to suppress statements
  • Improper aiding and abetting instruction
  • Improper certification for adult prosecution (Apprendi)

May 5--Thursday--a.m.

State v. Bryant Seba, No. 113,149 (Pratt)
Direct appeal; premeditated first-degree murder
Michelle A. Davis
[Affirmed; Luckert; September 30, 2016]
  • Insufficient evidence
  • Failure to give lesser-included offense instructions
  • Improper definition of "intentionally"
  • Failure to give instructions for imperfect self-defense
  • Improper admission of gruesome photographs
State v. Tiofilio Rodriguez, No. 110,246 (Grant)
Direct appeal (petition for review); aggravated kidnapping
Randall L. Hodgkinson
  • Defective complaint
  • Improper classification of prior conviction

Sunday, January 17, 2016

February-March 2016 KSC docket

Here are the criminal cases on the KSC docket for February 29-March 3, 2016. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live at the appellate court website (here) and archived (here) if you would like to watch any of these arguments.

February 29--Monday--a.m.

State v. Keith Ritz, No. 112,069 (Sedgwick)
Direct appeal; felony murder
Heather R. Cessna
  • Failure to sever charges
  • Failure to give lesser-included offense instructions
State v. Javier Rizo, No. 112,824 (Sedgwick)
Direct appeal; felony murder
Sarah Ellen Johnson
[Affd/Dsmd; Johnson; August 12, 2016]
  • Improper jury trial waiver
  • Failure to grant downward durational departure
State v. Amoneo Lee, No. 113,562 (Sedgwick)
State appeal
Richard Ney
[Reversed; Rosen; April 29, 2016]
  • Whether district court properly granted motion to correct illegal sentence under Alleyne
State v. Jerry Thach, No. 112,231 (Sedgwick)
Direct appeal; felony murder
Michael P. Whalen
[Affirmed; Luckert; September 9, 2016]
  • Insufficient evidence of underlying felony

March 1--Tuesday--a.m.

State v. Jordan Mullen, No. 110,468 (Johnson)
Direct appeal (petition for review); possession with intent
Joanna Labastida
[Affirmed; Rosen; April 22, 2016]
  • Failure to grant motion to suppress
  • Deficient search warrant affidavit
  • Failure to properly advise of right to jury trial
State v. Ralph Corey, No. 110,149 (Franklin)
Direct appeal (petition for review); aggravated kidnapping
Lydia Krebs (brief); Peter Maharry (petition for review & argue)
[Affirmed; Biles; July 1, 2016]
  • Jury misconduct (juror comment during deliberations)
  • Denial of right to be present during readback
  • Improper jury instruction
  • Improper prosecutorial argument

March 3--Thursday--a.m.

State v. William Shank, No. 112,982 (Thomas)
Sentencing appeal
Peter Maharry
[Affirmed; Nuss; April 15, 2016]
  • Improper consecutive sentences
  • Unworkable restitution order
State v. Christian McCormick, No. 109,985 (Sumner)
Direct appeal (petition for review); rape
Christina M. Kerls
[Affd/Rvd; Beier; September 9, 2016]
  • Improper admission of evidence of another bad act
  • Improper sentence to more than minimum
  • Failure to grant downward departure
State v. Elton Sherman, No. 113,105 (Crawford)
Direct appeal; felony murder
Meryl B. Carver-Allmond
[Affirmed; Stegall; September 9, 2016]
  • Improper prosecutorial argument (defining reasonable doubt)
  • Failure to grant mistrial
  • Speedy trial (due process) violation

Saturday, January 09, 2016

Search incident to arrest nor inevitable discovery justified search of wallet left on car

Shannon Crane won in State v. Reed, No. 113,576 (Kan. App. Dec. 18, 2015), affirming Judge Rose's suppression order in a Reno County drug prosecution. Judge Rose found the following facts:
Defendant was handcuffed and at the rear of his vehicle when his wallet was first searched. The search of the wallet was not justified by safety reasons or as an effort to safeguard evidence of the offense of driving while suspended. The officers were in possession of defendant's driver's license, the only evidence relevant to the crime for which defendant was being arrested. There was nothing protruding from the wallet suggesting any type of safety concern. Officer Carey testified it is police department policy to search a person's effects before placing them in a patrol car. The court assumes this policy is for safety reasons. Here though, defendant was separated from his wallet. Defendant apparently was not asked what he would like done with his wallet, if anything. If officers were concerned about security of defendant's property there was a passenger who arguably could have assumed custody of the wallet. There was no indication the passenger was a minor child or under the influence of drugs or otherwise incapacitated.

The search was not authorized as incident to arrest. The inevitable discovery doctrine does not authorize the admission of the evidence because the wallet was not lawfully seized.
The COA agreed that the search incident arrest doctrine did not apply:
If Reed's wallet had been in his pocket or even in his hand when he was arrested, the search in this case clearly would have been constitutional as a search incident to arrest. But here, Reed placed his wallet on the roof of his car prior to his arrest. Before officers searched Reed's wallet, Lahaan arrested Reed, placed him in the back of the patrol car, and continued to complete the investigation and interview other people at the scene, including Reed's passenger. By the time Carey searched Reed's wallet, there was no possibility that Reed could access the wallet. Therefore, under Gant, the justifications of the search incident to arrest exception were absent and the exception did not apply. The State's undeveloped argument that Gant is inapplicable because it concerned an automobile is unpersuasive in light of the language quoted above from Gant.
The COA also agreed that adopting the state's argument would constitute a huge expansion of the inevitable discovery rule:
The State argues that it would have been unreasonable to expect officers to leave the wallet on the roof of the car. The State further asserts that "[i]f an item is personal in nature, plainly connected to the suspect, and left out in the open, law enforcement should be able to lawfully collect the item. Once the items are lawfully with law enforcement, they may be searched. [Citation omitted.]" If the court accepts the State's assertion, it is essentially saying that officers may search any item an arrestee is "plainly connected to" and which is "left out in the open" without further requirement from the Fourth Amendment. This would run afoul to the Fourth Amendment's premise that warrantless seizures are impermissible without an established exception to the warrant requirement.
Finally, the COA rejected the application of the good-faith rule:
The State contends that the officers acted "with an objectively reasonable good-faith belief that their conduct was lawful." But even if Carey's motivation for searching Reed's wallet may have been benign, the fact remains that he violated Reed's constitutional rights by searching his wallet without a warrant and without an applicable exception to the warrant requirement. This case presents a situation where the exclusionary rule should be applied in order to deter Carey and other law enforcement officers from making the same type of mistake in the future. Thus, the district court correctly applied the exclusionary rule to suppress the evidence found in Reed's wallet.
[Update: the state did not file a PR and the mandate issued on January 26, 2016.]
 

Aiding and abetting instruction given during jury deliberations is clear error

Rick Kittel won in State v. Hover, No. 113,214 (Kan. App. Dec. 18, 2015)(unpublished), obtaining a new trial in a Reno County aggravated battery prosecution.  Ms. Hover argued that the district court's improperly giving an aiding-and-abetting instruction in response to a jury question. During deliberations, the jury asked "If we determine that the defendant was guilty of battery, does she share responsibility for all the harm that was done[?]" Over defense objections, the district court gave a pattern instruction for aiding-and-abetting. The COA held that the instruction was legally inappropriate:
Hover's defense was that the State had failed to prove its case. Hover pointed out the variances in the witnesses' trial testimony and attempted to undermine the State's witnesses' credibility. Moreover, Hover argued that her hemophilia would have resulted in bruises on her hands had she been fighting, but she had no bruises. Hover offered the jury an alternative explanation of the fight: that Kelsie and Renae were the ones who hit Spencer and Hover was trying to break up the fight.

We find that the aiding and abetting instruction was not legally appropriate for the simple reason that neither party asserted an aiding and abetting theory during the trial. Moreover, Hover argues that the instruction was legally inappropriate because giving it violated her constitutional right to present a defense—she was unable to present a defense to or argue against the theory that she was guilty as an aider and abettor since that theory was not introduced until after the close of evidence and argument.
On reversibility, the COA held that the error was clear:
This case essentially boiled down to a credibility contest between witnesses supporting the State's theory—that Hover battered Spencer—and witnesses supporting the defense theory—that Hover was present but did not touch Spencer. By erroneously introducing a new theory of culpability during deliberation, without supplemental argument or presentation of evidence, the district court fundamentally changed the grounds on which the jury could convict Hover. We cannot be sure that the erroneous instruction on aiding and abetting caused the jury's verdict, but there is a real possibility that it did so. Stated differently, after carefully reviewing the entire record, we are firmly convinced there is a real possibility the jury would have rendered a different verdict had the instruction error not occurred. Thus, we conclude the supplemental jury instruction on aiding and abetting was clearly erroneous.
As a result, the COA ordered a new trial.

[Update: the state did not file a PR and the mandate issued on January 26, 2016.]

Cannot detain while getting a search warrant without more

Kimberly Streit Vogelsberg won in State v. Daugherty, No. 110,131 (Kan. App. Dec. 18, 2015)(unpublished), obtaining a suppression order in a Butler County drug prosecution. Ms Daugherty argued that officers obtained statements from her during an illegal detention and that the tainted evidence invalidated a search warrant predicated on those statements, which in turn led to incriminating evidence.  The state relied on cases that stood for the proposition that a person can be detained during execution of a search warrant. But the COA held that Ms. Daugherty's case was easily distinguishable:
In Daugherty's case, of course, officers did not have a search warrant when they detained her. Given the cases' strong emphasis on the search warrant to justify a seizure, Summers and Mena do not control the result here.
The COA went on, then, to consider whether a person can be detained while officers get a search warrant.  Ultimately, the COA followed a Fourth Circuit case that held a seizure unreasonable where there was not warrant, no probable cause--or even reasonable suspicion--of criminal activity, and no reasonable suspicion of destruction or concealment of evidence. As a result, the COA held that Ms. Daugherty's detention was similarly unreasonable:
police in our case did not have probable cause to believe that Daugherty had done or would do anything wrong. Nor could Daugherty have destroyed evidence that was in the room; officers were preventing anyone from entering. No officers suggested that Daugherty represented a threat to their safety; the officers didn't handcuff or restrain her while they kept her in the motel lobby. She was seized without being given an option to leave, and the officers did not have a search warrant (or the imminent prospect of one) at the time. We conclude that her seizure in these circumstances violated her right to be free from unreasonable seizure under the Fourth Amendment to the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights.
The COA also rejected the state's argument that the reading of Miranda rights during the illegal detention reduced the effect of the illegal seizure. The COA held that, while giving of Miranda rights may be relevant, it did not overcome the fact that the statements were made during the illegal detention and immediately used to get a search warrant.

Finally, the COA held that the state's speculative theory regarding inevitable discovery was not sufficiently litigated at the district court and therefore remanded for further findings.

[Update: the state did not file a PR and the mandate issued on January 26, 2016.]