Sunday, September 13, 2015

Unpublished opinions available online!

Here is a news release from the Clerk of the Appellate Court announcing that, at least for future cases, the full text of unpublished appellate decisions will be available online.  This is a welcome change and will allow attorneys and other persons who may not have access to online opinions through a service like Westlaw to get access to unpublished opinions. Plus Kansas Defenders will be able to link to unpublished decisions!

We have seen our appellate courts more and more willing to cite unpublished decisions as persuasive, and this option should facilitate that even more. Now here's hoping that the appellate rules will be amended to dispense with the requirement of attaching unpublished opinions when cited in pleadings (at least if the unpublished decision is available on line).

Sunday, July 19, 2015

Just in Case you want to keep up to date on the law

Paige Nichols has started a new regular podcast called Just in Case that will help keep us up to date on recent SCOTUS, Tenth Circuit, and KSC case law.  Paige is only the smartest attorney I've ever worked with (plus she actually makes continuing education fun), so I know I'll be a regular listener.  You should be, too!  Thanks to Monnat and Spurrier for supporting this new resource for Kansas Defenders!

Saturday, July 18, 2015

Promise to shelter suspect's children leads to habeas relief

Jean K. Gilles Phillips and KU Innocence Project intern Abby West won in Sharp v. Rohling, No. 14-3090 (10th Cir. July 15, 2015), obtaining federal habeas relief from a state murder prosecution from Shawnee County.  The Kansas Supreme Court affirmed Ms. Sharp's conviction in 2009, rejecting her claim that statements made to investigators were involuntary and should have been suppressed.  The Tenth Circuit held that this holding was a "decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding" and thus warranted relief under federal habeas law:
The Kansas trial court found Ms. Sharp was not “operating under any promises.” The supreme court reviewed that determination and concluded substantial competent evidence showed Detective Wheeles did not promise Ms. Sharp leniency, or alternatively, any promise of leniency was conditioned on Ms. Sharp not inculpating herself. As we point out below, the court was not clear on this next point, but it also decided Ms. Sharp was not operating under a promise to help find shelter for her and her children, or alternatively, any promise to help Ms. Sharp’s children was a noncoercive collateral benefit because it would not directly benefit Ms. Sharp. We conclude (1) the supreme court’s voluntariness determination was based in significant part on its fact findings about Detective Wheeles’s alleged promises; (2) it unreasonably found Detective Wheeles did not promise Ms. Sharp leniency; and (3) it unreasonably found Detective Wheeles did not promise to help Ms. Sharp and her children; or it decided any such promise did not induce Ms. Sharp to confess, which is a voluntariness determination and not a factual finding.
The Tenth Circuit held that the improper admission was not harmless and therefore granted habeas relief, subject to retrial by the state.

Here is coverage in the Lawrence Journal-World.

Sunday, July 05, 2015

Statute requiring attorneys to file joint motions violates separation of powers

In 2014, the Kansas Legislature passed K.S.A. 20-3301(c), a statute that imposes deadlines for all state court decisions, including appellate decisions.  As part of that statute, the statute directs "all counsel after those deadlines have fun to submit a joint request to the Supreme Court that a decision be entered 'without further delay.'"

In State v. Buser, No. 105,982, on September 11, 2014, Meryl Carver-Allmond argued a case at the KSC involving challenges to retroactive application of 2011 amendments to the Kansas Offender Registration Act.  As of March 2015, the KSC had not issued a decision, reaching the time limits of the 2014 statute.  On March 26, 2015, Ms. Carver-Allmond filed a motion asking the KSC to find the mandatory application of the 2014 statute an unconstitutional violation of the separation of powers. The state did not respond.

On July 1, 2015, the KSC granted Ms. Carver-Allmond's motion and issued an order holding that K.S.A. 20-3301(c) is unconstitutional.  In its sixteen-page order, the KSC reviewed the separation of powers doctrine in detail and agreed that attorneys are officers of the court and that legislative interference with an attorney's ethical duties:
Directing attorneys to ultimately compel the Supreme Court to release its decision by a date calculated by the legislature's formula is an inordinate degree of legislative control over the judicial power.
The KSC agreed that expediting appeals is a valid objective, but that the statute in this case exceeded the legislative power:
while this apparent legislative objective [expediting appeals] is worthwhile, requiring attorneys to compel the court to release its decision within 30 days . . . in furtherance of that objective violates the separation of powers doctrine. The legislature cannot enforce an obligation of the judiciary that it owes solely to the people.
So, as a result, the KSC held that the statute violated the separation of powers doctrine that is part of the Kansas Constitution:
In summary, through K.S.A. Supp. 20-3301(c)(2), the legislature directs attorneys to seek exprdited judicial findings by filing a joint request that seeks one of two unconstitutional remedies under subsection (c)(3).  En route to that conclusion we necessarily have decided the legislature's mandatory court-deadline in subsection (c)(1) is also unconstitutional.  Subsections (c)(1), (2), and (3) violate the separation of powers doctrine. . .
Without these subsections, the remainder of subsection (c) is meaningless.  Accordingly, we grant Carver-Allmond's motion and relieve her of any purported duty to comply with subsection (c)(2).
This is a helpful decision for several of us who practice in the KSC and who have pending cases. 

Here is a blog post in the Topeka Capital-Journal reporting on the order and some reaction to it.

[Update: on July 14, 2015, the Attorney General filed a motion to withdraw the July 1, 2015 order.]

Saturday, June 27, 2015

Lifetime postrelease for juvenile offenders violates Eighth Amendment

Joanna Labastida won in State v. Dull, No. 106,437 (Kan. June 5, 2015), obtaining a holding that mandatory lifetime postrelease supervision is categorically unconstitutional when imposed on a juvenile who was convicted of aggravated indecent liberties with a child. 

The KSC applied Graham v. Florida, 560 U.S. 48 (2010)(holding that juvenile offenders could not be sentenced to life without parole for non-homicide offenses) and held that, as applied in the Kansas sentencing scheme, lifetime postrelease supervision could not stand:
Under Graham, Dull has not demonstrated a national consensus for or against mandatory lifetime postrelease supervision for juveniles. Juveniles, especially those who commit a nonhomicide offense, are clearly viewed with a diminished moral culpability compared to adults. Mandatory lifetime postrelease supervision for a juvenile is a severe lifetime sentence, even when the potential for further imprisonment is not considered, because the juvenile's liberty interests are severely restricted for life by the terms of the mandatory lifetime postrelease supervision. While we have found mandatory lifetime postrelease supervision constitutional for adults, the same factors that result in a diminished culpability for juveniles, i.e., recklessness, immaturity, irresponsibility, impetuousness, and ill-considered decision making, along with their lower risks of recidivism, all diminish the penological goals of lifetime supervision for juvenile sex offenders. 

Accordingly, we reverse the Court of Appeals and conclude that mandatory lifetime postrelease supervision is categorically unconstitutional under Graham when imposed on a juvenile who committed and was later convicted of aggravated indecent liberties with a child.
As a result, the KSC vacated the postrelease supervision portion of Mr. Dull's sentence.

[Update: on July 2, 2015, the state filed a notice of intent to file a petition for a writ of certioriari with the SCOTUS.  As a result, issuance of the appellate mandate has been stayed.]

Sunday, June 14, 2015

Incomplete DC-70 advice requires new DUI trial

Jay Norton won in City of Overland Park v. Lull, No. 111,741 (Kan. App. March 13, 2015)(published by order of Kansas Supreme Court, June 9, 2015), obtaining a new trial in a Overland Park DUI prosecution. The primary question was whether the officer had substantially complied with the notice provisions of K.S.A. 8-1001(k). The COA found that the officer did not:
Here, it is undisputed that Officer Morse read the DC-70 form word for word with the exception of omitting paragraph 7. Thus, unlike Schilling or Menke, we clearly have an omission while reading the DC-70 form, not a misstatement. When dealing with an omission, this court has found no error when the omitted paragraph did not apply to the driver in any way. However, paragraph 7 clearly applied to Lull—Officer Morse in fact testified that Lull had told her it was his second DUI.
The district court's finding that notice to Lull did not have to include the actual duration of the applicable driving license suspension or civil penalty for failing an evidentiary test is erroneous and does not comply with the mandatory statutory requirements that certain notices be given. The purpose of the implied consent law is to coerce submission to chemical testing in part by the threat of statutory penalties of license suspension. To accomplish this, the legislature sought to convey to a driver the distinction between the specific penalties for refusing to take an evidentiary test and those penalties for having no prior occurrence or a second or subsequent occurrence.
The district court, in its ruling, and the City on appeal suggest that we should look at whether a driver refuses or elects to take the evidentiary test first and then determine if he or she had proper notice. However, K.S.A. 2012 Supp. 8-1001(k) clearly and unambiguously provides that all the required notices be given before asking the driver to submit to a breath test. By omitting paragraph 7, Officer Morse did not inform Lull that the statutory penalty for him as a repeat DUI offender was more severe for him than those described in paragraph 6, i.e., automatic suspension of driving license for 1 year instead of an automatic suspension of either 30 days or 1 year depending on his blood alcohol level. Thus, Lull did not receive the information necessary for him to make an informed decision as to whether to take the test or not.
The COA held that the district court should have suppressed Mr. Lull's refusal and that the error was not harmless. As a result, the COA remanded for a new trial.

[Update: the state did not file a PR and the mandate issued April 16, 2015.]

[Further update: the KSC granted a motion to publish on May 26, 2015 and the case was published on June 9, 2015.]

Saturday, June 13, 2015

Proof of nature of prior burglary convictions violates Apprendi

Samuel Schirer won in State v. Dickey, No. 110,245 (Kan. May 22, 2015), obtaining a new sentencing hearing in a Saline County theft prosecution. The main issue had to do with classification of burglary convictions from before the Kansas Sentencing Guidelines. Before 1993, there was no such thing as "residential" or "nonresidential" burglary.  So how do you classify those burglaries as person or nonperson? The Kansas statute says the judge should consider evidence and make a determination. But that sounds like judicial factfinding that increases a penalty, which is prohibited by Apprendi.  The ADO had been raising that issue for a while, but the issue was rejuvenated when the SCOTUS decided Descamps v. United States in 2013 (blogged about here).

The COA had held that judicial factfinding that increases a penalty violated Apprendi and Descamps. The KSC agreed:
Though the burglary statute forming the basis for Dickey's prior juvenile adjudication was comprised of multiple, alternative versions of the crime, none included an element requiring that the structure burglarized be a dwelling, i.e., "used or intended for use as a human habitation, home or residence." K.S.A. 2014 Supp. 21-5111(k). Consequently, employing either a categorical approach or a modified categorical approach to determine whether Dickey's prior burglary adjudication involved a dwelling would be constitutionally prohibited under Descamps and Apprendi.
Dickey is also important from a procedural standpoint, holding that the error resulted in an illegal sentence, meaning that it could be raised for the first time on appeal and was not waived by failure to contest the presentence investigation.

[Update: the state filed a motion for rehearing on June 10, 2015.]

[Further update: the KSC denied the state's motion for rehearing and the mandate issued on July 2, 2015.]