Saturday, April 29, 2006

My wife would hit me with a car, too!

In State v. Bolden, No. 93,806 (Kan. App. April 28, 2006), Brent Getty, an occassional appellate defender, successfully defended a state’s appeal from a downward dispositional departure. The district court relied on the fact that the victim/husband was seeing another woman to justify a downward departure on an aggravated battery charge involving Ms. Bolden ramming a car holding her husband and his girlfriend. The COA held a "reasonable person would expect a wife to be upset upon learning that her husband is being unfaithful. However, it is unreasonable to accept that by engaging in infidelity a person invites their spouse to assault and batter them." I wonder if these judges are married?

The district court also relied on the age of Ms. Bolden’s children and the impact of her going to prison on the children, on the fact that she had taken anger control classes, and that the probability of reformation was increased with probation. The COA held that these were sufficient grounds to support the departure and affirmed.

[Update: neither side filed a petition for review and the mandate issued on June 1, 2006].

Improper criminal history results in illegal sentence

Michelle Davis won in State v. Donaldson, No. 92,530 (Kan. App. April 28, 2006), obtaining a remand for evidentiary hearing on Mr. Donaldson’s motion to correct illegal sentence. In his motion, he argued that the district court improperly classified certain Oklahoma prior convictions as person felonies. The state argued that the district court lacked jurisdiction and/or that Mr. Donaldson waived the claim by stipulating to the classification at sentencing. The COA disagreed, holding that a sentence obtained after an incorrect criminal history classification is not in conformity with the statute and, therefore, illegal. The COA also noted that the classification of a prior conviction is a legal question and, therefore cannot be the subject of a stipulation. The COA held that Mr. Donaldson was entitled to a hearing on his claim and at that hearing, the state bears the burden!

[Update: the state did not file a petition for review and the mandate issued on June 1, 2006].

Indigent means I can't pay for a lawyer.

A lot of new cases from the KSC this last week--some good, some pretty bad. Anyway, lets start with a BIDS fee case. Shawn Minihan won in State v. Robinson, No. 91,875 (Kan. April 28, 2006), obtaining a remand for explicit determination of a defendant’s ability to pay and the financial burden payment of the BIDS feewould impose in a Saline County case. The COA has split widely on this issue and the KSC granted review to resolve the conflict. The KSC reviewed K.S.A. 22-4513, the recoupment statute, and held that its terms are mandatory and that consideration of the ability to pay and the financial burden must be made at the time of sentencing. The KSC noted that prior versions of the recoupment statute had been held unconstitutional, that the current version of the statute resulted, and that a mandatory consideration of ability to pay and the financial burden at the time of imposition of BIDS fees was consistent with the legislative intent to bring Kansas in line with other states that require consideration of ability to pay and the financial burden. The KSC did note that, because the assessment is not punitive, it is not part of the sentence, and failure to make the findings does make the sentence "illegal."

And don't forget Mark Dinkel's additional arguments previously discussed here.

I’m not sure what impact this will have on the world. I suppose it could be a hassle for trial practitioners/judges in some cases. I would think that most defendants who are paying now (mostly defendants granted probation) can still be found able to pay and still will pay. What does anyone else think about this case? Can it apply in other areas? (i.e. restitution, KBI fees, etc.)

Thursday, April 27, 2006

Back from DC

Just got back from DC where I went to watch Rebecca Woodman re-argue the Marsh case at the SCOTUS. She did a spectacular job--she really looked comfortable and was really effective answering questions. Chief Justice and Kennedy were pretty hostile to Rebecca, but Stevens, Souter, and Ginsburg were great, especially Souter. Scalia was predicatably hostile to her postition, but I always think he asks questions in a very professional way. Breyer was conversational. Thomas as usual didn't say anything, but unless he is more interested in the jurisidictional questions than the rest of the SCOTUS appears, he would usually side with Scalia in a death penalty case. So, it comes down to Alito, who was very professional in his questioning of both sides and asked questions that made it seem like he really understood Rebecca's argument regarding the equipoise issue. So, who knows. We should see a decision by the end of June.

P.S. Phill did a pretty good job again. Although when the questioning got a little more involved, he was a little evasive. The difference between him and Rebecca is apparent when you're sitting in the courtroom with them together--he is working the room (i.e. politician)-- Rebecca is focused on the court and her client (i.e. attorney-advocate).

[Update: on June 26, 2006, the SCOTUS ruled 5-4 in favor of the state. Here is the decision. Even though Thomas never asked a single question at either argument, he turned out to be the author, which made the result rather predictable. I was especially disappointed that the SCOTUS totally blew off the jurisdictional issue--I thought this was supposed to be a big states' rights court but they didn't even recognize that under Kansas law, the state may have been able to later appeal the KSC's constitutional ruling after remand for a new trial. See State v. Scherzer, 254 Kan. 926, 869 P.2d 729 (1994) (allowing state's appeal of finding that statute violates Eighth Amendment).]

[Further update: on August 1, 2006, a day after the SCOTUS mandate was received by the KSC, Rebecca filed a motion for further briefing and argument about the proper disposition in the KSC. In particular, Rebecca argued that the KSC should now decide the state constitutional issues, which are still valid even after the SCOTUS decision.]

[Further update: on October 18, 2006, the KSC issued a supplemental opinion affirming in part and reversing in part and remanded for a guilt-phase trial, as originally ordered. Here is the supplemental opinion. The KSC didn't get to any of the state constitutional issues, but just remanded.]

Friday, April 21, 2006

Persistent sex offender case

Cory Riddle won in State v. Allen, No. 93,940 (Kan. App. April 7, 2006), reversing an enhanced persistent sex offender sentence based on a prior aggravated incest juvenile adjudication. A divided COA held that because aggravated incest is not in the list of sexually motivated offenses and was not found to be sexually motivated at the time of the prior sentencing it could not be used to enhance the sentence in this case. As noted by the majority, it would cut Mr. Allen's sentence from 110 months to probably 100 months.

Just as an aside, there is another argument that we have been tossing around here regarding whether juvenile adjudications can be used under K.S.A. 21-4704(j) at all. It talks about a prior "conviction" and there are a lot of cases that say an adjudication is not a conviction. In fact, that was a primary basis for the KSC saying that pre-guidelines juvenile adjudications could be used in criminal history even though by statute they are not supposed to be evidence of a crime.

[Update: the state filed a petition for review on May 5, 2006. Mr. Allen filed a cross petition for review on May 8, 2006.]

[Updtae: the KSC granted the state's petition for review and Mr. Allen's cross-petition for review on September 19, 2006. This case should be argued in December 2006 or January 2007].

[Further update: the KSC affirmed on March 16, 2007. Here is my blog entry on the decision.]

Thursday, April 20, 2006

But it's not a commercial truck

Michael Gunter of Kansas City won a reversal in U.S. v. Herrera reversing a conviction for possessing cocaine with intent to distribute out of Kansas. The Tenth Circuit noted that it did not need to decide whether an administrative scheme that purports to allow searches of commercial vehicles without any reason is constitutional because Mr. Herrera's truck was not a commercial vehicle:
Because the Government sought to justify its stopping Herrera in this case based only upon a regulatory scheme permitting random administrative inspections of commercial vehicles, the authority for that stop must come from that regulatory scheme. And because Herrera's truck did not fall within the class of vehicles subject to that regulatory scheme's random inspections, the state trooper in this case had no authority to stop Herrera. The trooper's seizure of Herrera, therefore, violated the Fourth Amendment.
The Tenth Circuit also held that an improper search could not be saved by the good-faith doctrine when the mistake of fact was the law enforcement officer's:
Because the very justification for allowing warrantless administrative searches is not present here, we do not believe it is appropriate under these circumstances to expand the regulatory search concept further by upholding an unauthorized administrative search because of the officer's mistaken good-faith factual belief (not shared by the person being searched) that the vehicle being searched was a commercial vehicle subject to an administrative search.

Some appeals never die

In Brown v. Roberts, an unpublished case, the Tenth Circuit reversed a dismissal with Mr. Brown's 2254 petition with prejudice. In particular, Mr. Brown challenged his 1996 convictions for attempted aggravated robbery and kidnapping. The district court had dismissed the petition as untimely. Mr. Brown alleged that his direct appeal from the 1996 conviction was still pending in state court. The Tenth Circuit held that:
At first glance, that claim seems preposterous. Mr. Brown indeed filed a notice of appeal with the Kansas district court on July 1, 1997, but neither Mr. Brown nor his counsel took any action to pursue the appeal in the Kansas courts for the next seven years. Specifically, so far as the record discloses, Mr. Brown has not filed a docketing statement with the appellate courts, as required by Kansas Supreme Court rules. An August 2005 letter from the office of the clerk of the Appellate Courts of Kansas confirms that "[n]o appeal has been docketed" concerning the 1996 conviction. . . .

On closer inspection, however, Mr. Brown's direct appeal may remain alive, having fallen into a kind of appellate limbo in the Kansas court system. Under Kansas law, the "[f]ailure of the appellant to take any of the further steps to secure the review of the judgment appealed from does not affect the validity of the appeal." Kan. Stat. Ann. § 60-2103(a). For reasons that are not clear, the district court never entered an order dismissing Mr. Brown's appeal despite the mandatory language of Rule 5.051.
We see these every now and then where a notice of appeal is filed, but then nothing ever happens. Sometimes it can be beneficial for a client. See here.

Wednesday, April 19, 2006

SCOTUS denies Ivory/Hitt cert petitions

As noted in a previous post (here), the SCOTUS had ordered the state to respond to cert petitions in a couple of Ivory/Hitt cases (i.e. whether Apprendi applies to prior convictions and/or juvenile adjudications). The SCOTUS denied cert on April 17, 2006. Luckily, I have a couple of Ivory/Hitt cert petitions that I can file in the next week or so. Until the SCOTUS resolves this issue, I think it is worth continuing litigation. I suppose the best case scenario would be a case where criminal history was disputed (factually disputed, not just legally disputed) and where criminal history makes a difference. If you have a case like that, make sure you let me know!

Let my people go . . . .

Lynn Hartfield, a federal public defender from Denver, successfully defended a government appeal from a suppression order out of Colorado in U.S. v. Lopez. The Tenth Circuit rejected the government's argument that, even though officers still had Mr. Lopez' drivers' license, the stop remained consensual:
Here, [the officer] testified he approached Lopez because it was late at night and Lopez was standing in a high-crime area. At the time he asked for Lopez identification, [the officer] knew the address of the owner of the car next to which Lopez was standing and knew the car had not been reported stolen. Within seconds of reviewing Lopez license, [the officer] was able to establish Lopez identity and confirm that Lopez's address matched the address on the car registration. After that point in time, the continued retention of Lopez's license was undue.
We are seeing a lot more of these continued detention cases. It is an area where both Kansas courts and the Tenth Circuit seem to be drawing a line. So keep filing those suppression motions.

Tuesday, April 11, 2006

Stacks on stacks

Nathan Webb won in State v. Leach, No. 94,157 (Kan. App. April 7, 2006)(unpublished), reversing a conviction for felony obstruction of duty from Atchison County. The Court of Appeals agreed that the record did not contain evidence to show that Mr. Leach knew or should have known that the officers were officers. The Court noted that a jury might infer that fact if the record showed direct evidence that the officers were in uniform, were driving a marked patrol car, or that Mr. Leach knew the officers from prior contacts. But the record did not contain such direct evidence. The state argued that such facts could be fairly inferred from other evidence, but the Court held that basis would constitute improper inference stacking. In particular, the Court held that the fact that an officer announced that he was there to execute a warrant does not satisfy the requirement that Mr. Leach knew or should have known the person was a law enforcement officer. By reversing this conviction on sufficiency grounds, the Court avoided some sticky instructional issues regarding misdemeanor obstruction as a lesser-included offense.

[Update: the state did not file a petition for review and the mandate issued in this case on May 11, 2006]

Wednesday, April 05, 2006

Road tour II

Well, I'm back on the road for a bunch of Ortiz/Phinney remand hearings. Hutchinson last week, Wichita this Friday, Great Bend next Friday, and Parsons a week from Monday. Although this has been a hassle for all the travel, these have been mostly productive. Where I have been able to get favorable rulings from the district court, the COA has been granting motions for summary disposition (ruling without briefing) and we have already had some of these guys re-sentenced. We have also started seeing some of these where you all are getting those findings in the district court in the first place. Remember to keep filing notices of appeal in any manufacture related case for the near future.

When you order a competency evaluation, you'd better evaluate competency!

Melissa Kasprzyk had a somewhat surprising win in State v. Davis, No. 90,982 (Kan. March 17, 2006), vacating convictions for rape and aggravated kidnapping from Pawnee County on an appeal from denial of Mr. Davis’ motion to correct illegal sentence. During his prosecution for rape and aggravated kidnapping, Mr. Davis’ trial attorney filed a motion for a competency determination. Although the district magistrate judge ordered a competency determination, his order was never served on the hospital. Mr. Davis was never evaluated and the prosecution proceeded through arraignment, trial, conviction, and sentencing. His appeal was affirmed on conviction. Mr. Davis subsequently filed a motion to correct illegal sentence claiming that the district court lacked jurisdiction to convict him when it failed to suspend proceedings in order to determine competency. The district court denied relief, the COA affirmed, and the KSC granted review.

Mr. Davis argued that K.S.A. 22-3302 requires suspension of proceedings once competency is raised as a legitimate issue. The KSC agreed–once the court ordered a competency determination, a hearing was mandatory and further proceedings violated both the statute and the Due Process Clause. Because no hearing or determination was made in this case after the order for a competency determination, the KSC, 6-1, held that the district court lacked jurisdiction, rendering the sentence illegal:

As mentioned earlier, [Mr. Davis’] due process rights were violated, and the district court had no jurisdiction. Accordingly, under our facts there is no place for a harmless error analysis.
The KSC also considered a potential retroactive finding of competency. The KSC acknowledged SCOTUS precedent holding that a retroactive competency proceeding can be permissible although inherently difficult. The KSC adopted the factors applied by the Tenth Circuit in McGregor v. Gibson, 248 F.3d 946 (10th Cir. 2001) for determining whether a retroactive competency hearing can be meaningfully conducted: (1) passage of time, (2) availability of contemporaneous medical evidence, (3) any statements by the defendant in the trial record, and (4) availability of individuals and trial witnesses who were in a position to interact with defendant before and during trial. Although trial counsel had testified that he thought Mr. Davis was competent by the time of trial, the KSC held that the combination of passage of time with a lack of contemporaneous medical evidence rendered any retroactive competency determination insufficient to protect defendant’s Due Process rights. As a result, the Court vacated the conviction and remanded for new trial (if Mr. Davis is determined competent today).

This is a little surprising, albeit correct, decision. There seem to be a legion of cases (like this) where the KSC says a defendant can’t get to a conviction-related issue, even a constitutional issue, by motion to correct illegal sentence. The distinction is the jurisdictional nature of the claim in this case. I wonder if there are many other jurisdictional type claims that could be raised under K.S.A. 22-3504? One might be venue (see this recent entry on the McElroy case). Maybe an intrastate detainer claim?

[Update: the state filed a petition for a writ of certiorari in this case on June 14, 2006. The SCOTUS denied the petition on October 2, 2006]

A good Fourth Amendment primer

A zone of victory case in State v. Hill, No. 89,572 (Kan. March 17, 2006). Finding harmless error, the KSC affirmed despite a Fourth Amendment violation. But there is a lot of good Fourth Amendment analysis in this case, both on what constitutes an arrest, evidence sufficient for reasonable suspicion, and when statements given after Miranda warnings are tainted by a Fourth Amendment violation. The KSC held for Mr. Hill on all of these points, but then found the error harmless. You should print out this case and keep it with you as a Fourth Amendment primer. (Seriously).

As an aside, this is terrible harmless error analysis. The question was whether Mr. Hill was involved in the manufacture at a residence. The statements suppressed included admissions that he had stayed there and physical evidence suppressed included a key to the residence found on his person. But the KSC said that because two co-defendants testified that Mr. Hill was involved in the manufacture, the district court (it was a bench trial) did not have to rely on his statements or the key. But the question should not be: did the fact finder have to rely on the tainted evidence; it should be: is it possible the fact finder relied on the tainted evidence. Unless the appellate court can say beyond a reasonable doubt that the evidence could not have contributed to the verdict, it must reverse. In this case, although other statements link Mr. Hill to the residence, if his incriminating statements and the key are taken out of the state’s case, those statements are essentially snitch/accomplice testimony, which is necessarily much less credible.

Tuesday, April 04, 2006

Actual evidence means Actual evidence

Heather Cessna won in State v. Houston, Appeal No. 93,771 (Kan. App. March 31, 2006)(unpublished), overturning a second-degree intentional murder conviction from Wyandotte County. The main issue was the admission of preliminary hearing testimony of a state's witness. The prosecutor had stated that the witness had moved to Utah, had run away, and could not be located--as a result the state asked that she be declared unavailable and admitting her preliminary hearing testimony. The COA followed its precedent (from another of Heather's cases, by the way) that "Before a witness may be declared unavailable, the State must present actual evidence of its efforts demonstrating the exercise of due diligence and good faith to produce the witness at trial." State v. Larraco, 32 Kan. App. 2d 996, 93 P.3d 725 (2004). Because the state did not present any actual evidence--just argument, the COA held the preliminary hearing testimony improperly admitted and reversed.

[Update: the state filed a really bad motion for rehearing, which was quickly denied; the state did not file a petition for review and the mandate in this case issued on May 22, 2006.]