Tuesday, October 24, 2006

Justice finally

I got a win in Fayne v. State, No. 94,872 (Kan. App. Oct. 20, 2006)(unpublished), remanding for further hearing regarding Mr. Fayne's 1507 motion. Mr. Fayne was originally sentenced to 228 months in prison on October 11, 2000 for a Johnson County agg robbery conviction.

The ADO represented Mr. Fayne in his direct appeal. In the direct appeal, in addition to several conviction issues, Teri Barr argued that a Missouri conviction for "stealing from a person" is most comparable to theft and therefore should be classified as a nonperson felony under the guidelines (which would move Mr. Fayne from "B" to "C" resulting in a presumptive reduction in sentence of 111 months). Although this is purely a legal question regarding criminal history classification, which can be raised for the first time on appeal, see State v. Vandervort, the COA panel in the direct appeal held that it would not reach the issue because it had not been raised at sentencing. State v. Fayne, No. 87,062 (Kan. App. April 11, 2003), rev. denied July 9, 2003.

Mr. Fayne subsequently filed a 1507 motion claiming that his trial attorney was ineffective for failure to object to the Missouri prior conviction at sentencing. The district court held that "stealing from a person" is comparable to a Kansas robbery offense, and therefore that the criminal history classification was correct. On appeal from denial, the COA agreed that, just like Kansas, Missouri has a crime called robbery. The distinctive element of both Kansas and Missouri robbery is taking by force or fear. "Stealing from a person" in Missouri lacks that element. In Kansas, stealing from a person (without force or fear) is pickpocketing, which is theft. The COA at least agreed that stealing from a person is not robbery, is not a person felony, and remanded for further hearing on whether trial counsel had any basis for not objecting to the Missouri conviction.

[Update: the state did not file a petition for review and the mandate issued on November 27, 2006]

[Further update: I represented Mr. Fayne at the evidentiary hearing yesterday, January 29, 2007. His sentencing attorney testified that he had no strategic basis for failing to object to the Missouri conviction and had no recollection of any legal investigation into that matter. Judge Tatum took the matter under advisement to allow for further briefing.]

[Further update: Mr. Fayne was finally resentenced to 107 months on May 7, 2006. Here is my blog entry in re resentencing].

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