Friday, July 31, 2009

Juvenile adjudication cannot support lifetime offender registration

I won recently in State v. Reese, No. 100,531 (Kan. App. July 31, 2009), reversing an order of lifetime offender registration and an enhanced sentence based on an alleged "persistent sex offender" status. The enhanced penalties had been based on a prior juvenile adjudication.

The COA held that a prior juvenile adjudication does not count as a "conviction" for offender registration purposes under KORA. The court stated:
The Kansas Offender Registration Act, K.S.A. 22-4901 et seq., requires that sex offenders register for 10 years on a first conviction and for life on a second or subsequent conviction. Because the legislature knows the distinction between juvenile adjudications and adult convictions and has set up a separate registration protocol for juvenile offenders, a juvenile adjudication does not qualify as a conviction for purposes of K.S.A. 22-4906(a).

The COA also reversed Mr. Reese's sentence, noting that the KSC had recently held in State v. Boyer that a prior juvenile adjudication cannot be used to sentence a defendant as a "persistent sex offender."

[Update: the state did not file a PR and the mandate issued on September 15, 2009.]

Fake victim can support downward departure sentence

Janine Cox won in State v. Valenzuela, No. 99,675 (June 26, 2009) (unpublished), affirming a downward durational departure sentence in a Shawnee County State's appeal. Mr. Valenzuela, who had learning disabilities and severe memory loss (due to a series of head traumas), was caught in an internet sting when he went to meet a woman who had been pretending to be a young girl in a chat room. Mr. Valenzuela pleaded no contest to one count of electronic solicitation of a child under the age of 14, a severity level 1 nondrug offense.

With a criminal history score of B, the presumptive sentence in this case was 554-586-618 months. The district court granted Valenzuela's motion for a downward durational departure, finding that Valenzuela's mental impairment and the fact that there was no real victim in this case were substantial and compelling reasons for departure. The district court also noted that Valenzuela had a “very supportive family” and he had taken responsibility and shown remorse for his actions. The court ordered a sentence of 120 months, the “same level as Mr. Valenzuela would have received had he enticed or solicited a real child, given his criminal history....” The 120-month sentence was equivalent to the sentence Valenzuela would have received for the severity level 5 crime of aggravated indecent solicitation of a child under K.S.A. 21-3511.

The COA affirmed the decision of the district court, holding:
Taken alone, the district court's finding that Valenzuela's capacity for judgment was lacking due to mental impairment is a substantial and compelling justification for departure. The district court's grant of a departure on this basis alone justifies a departure. The district court's finding that a departure is warranted due to the fact that there is no real victim in this case may constitute a substantial and compelling reason as well. Furthermore, the additional nonstatutory reasons provided by the district court may be grounds for departure if, taken as a whole, the reasons are substantial and compelling even if, taken in isolation, they would not support such a conclusion. See Blackmon, 285 Kan. at 725. For these reasons, the district court did not err in granting Valenzuela a durational departure from the presumptive sentence for his conviction of electronic solicitation. [Emphasis added].
The COA also held that the extent of the departure was not excessive. This is a nice opinion because the court agrees with what is essentially a proportionality attack on the sentence for electronic solicitation of a child under K.S.A. 21-3523. How can soliciting a fake child on the internet to do an unlawful sexual act be a severity level 1 offense, but soliciting a real child, in person, to do an unlawful sexual act is a severity level 5 offense? This question presents a nice argument for a departure, but it should also be the basis for a constitutional attack under Section 9 of the Kansas Constitution Bill of Rights, as we've been encouraging in Jessica's Law cases.

[Update: the state did not file a PR and the mandate issued on July 30, 2009.]

Monday, July 27, 2009

Age of defendant is still an element of Jessica’s Law offense

Rachel Pickering won in State v. Gonzales, No. 99,657 (Kan. July 24, 2009), reversing a life sentence in a Sedgwick County Jessica’s Law prosecution for aggravated indecent liberties with a child. The court affirmed the trial court’s denial of Mr. Gonzales’ motion for new trial regarding Mr. Gonzales’ convictions (aggravated indecent liberties with a child under 14, aggravated indecent liberties with a child between 14 and 16 years of age, rape, and violation of a protective order).

The court reversed the life sentence based upon the recent holding in State v. Bello, No. 99,225 (Kan. July 2, 2009), blogged about here. The court held:

[I]n Gonzales' case, the State failed to present evidence of his age at trial, and the jury was not instructed to make a finding regarding Gonzales' age. Under the reasoning in Bello, when a defendant is charged with an off-grid severity level offense of aggravated indecent liberties with a child, the element of the defendant's age must first be submitted to the jury and proved beyond a reasonable doubt in order for a defendant to be sentenced for an off-grid severity level offense under K.S.A. 21-4643. Accordingly, the sentence imposed on Gonzales under K.S.A. 21-4623 [sic] is vacated and the case is remanded for resentencing on Count II as a felony on the KSGA nondrug sentencing grid.
Here is the KC Star’s coverage of the case.

Friday, July 24, 2009

"Hasty generalization" warrants new trial

Meryl Carver-Allmond earned her first published win in State v. Smith, No. 99,655 (Kan. App. July 24, 2009), reversing a Douglas County conviction for robbery. The COA held that the district court abused its discretion in denying trial counsel’s motion to withdraw because an irreconcilable conflict existed between trial counsel and Smith.

Smith wanted to present evidence at trial that he was physically unable to commit the robbery and that he did not have a financial motive for the crime. However, trial counsel believed that Smith was the person in the surveillance video of the robbery. Prior to trial, counsel filed a motion to withdraw, informing the court (at a hearing outside the presence of the State) that he could not present Smith's evidence because he believed that Smith was the suspect shown in the surveillance video. The trial court denied the motion to withdraw, finding that any attorney would be precluded from presenting false evidence.

The COA rejected the trial court's analysis. The court held:

The issue before this court is whether the trial court abused its discretion in refusing to appoint Charles Smith new counsel. Based on the lone assertion of Smith's attorney who refused to present potentially relevant defense evidence on Smith'[s] behalf because he believed that a suspect shown in a crime surveillance video was Smith, the trial court developed a general rule covering all attorneys who could have represented Smith, thus committing the logical fallacy known as a hasty generalization. Just because Smith's attorney believed that the suspect shown in a crime video was the defendant, it does not follow that all attorneys would have viewed that video in the same way as Smith's attorney, especially when the assertion is based on the sense of sight. More important, this generalization theorizes that all attorneys would have refused to present potentially relevant evidence in Smith's defense. Accordingly, we reverse and remand for a new trial.
The COA also noted that the police officer who viewed the surveillance video should not have been allowed to tell the jury that he believed that Smith was the person in the video. The court held that this type of testimony invades the province of the jury, “because the normal experience and qualifications of lay jurors would permit them to compare the defendant sitting before them to the images shown in a videotape or photographs.”

[Update: the state filed a PR on August 20, 2009.]

[Further update: the KSC granted the PR on May 19, 2010. The case will likely be argued late fall 2010 or possibly early spring 2011.]

[Further update: here is a Lawrence Journal-World article reporting on the upcoming argument.]

[Further update: on February 11, 2011, the KSC reversed and remanded for new trial. Here is the blog entry reporting that decision.]

Thursday, July 23, 2009

Cause for stop evaporated

Steven C. Staker and Linda M. Barnes-Pointer won in co-defendants' consolidated cases in State v. Diaz-Ruiz, and State v. Diaz-Gomez, Nos. 100,926 and 100,927 (Kan. App. July 17, 2009), affirming Judge Hornbaker's suppression order. A trooper had stopped a vehicle on suspicion that a ladder was not secured:
Trooper Nicholas cited only one basis for the stop, i.e., that the ladder was loose in violation of K.S.A. 8-1906. That statute provides:

"(c) No person shall operate on any highway any vehicle with any load unless such load and any covering thereon is securely fastened so as to prevent the covering or load from becoming loose, detached or in any manner a hazard to other users of the highway."

When Nicholas approached the truck, he inspected and jiggled the ladder, and determined that it "probably wasn't going to fall off." He confirmed that the ladder "probably wasn't going anywhere" when he spoke to the defendants, advising them of the reason for the stop. Moreover, the videotape confirms that the ladder was strapped into the truck bed and did not present a hazard to others on the highway. Significantly, Nicholas never mentioned the ladder again, and he did not give the defendants either a verbal or written warning for violating 8-1906(c). Under these circumstances, we find substantial evidence supports the district court's factual finding that the trooper dispelled his suspicion of a possible violation of K.S.A. 8-1906(c) before he approached the defendants.

. . .

In conclusion, because the trooper's reasonable suspicion evaporated once he observed that the ladder was secure, the trooper had no reason to detain the defendants to perform the tasks incident to an ordinary traffic stop. Thus, the trooper unlawfully extended the scope of the stop by questioning the defendants regarding their travel plans and requesting identification.

[Update: the state did not file a PR and the mandate issued on August 20, 2009.]

Wednesday, July 22, 2009

PD Blog Star

Ron Sylvester, at the excellent What the Judge Ate for Breakfast blog, has started a video series titled "Common Law", which will follow court cases that don't necessarily grab the headlines. Sylvester hopes the series will show the human drama in the daily court cases that have an impact on people’s lives. Sedgwick County PD Lacy Gilmour has been the star of the first two episodes, which can be seen here and here. The series will also feature Sedgwick County District Judge David Kaufman and sherriff's deputies Dioane Gates and David Rank.

Tuesday, July 21, 2009

PD appointed to Sentencing Commission

Gov. Parkinson has appointed Jennifer Roth, a public defender from the Shawnee County PD office, to the Kansas Sentencing Commission. Here is an article from the LJWorld discussing the appointment. Jennifer has done great work the last few years at the legislature on criminal justice issues, and she will undoubtedly be a valuable asset as a member of the Sentencing Commission.

Mandatory drug treatment trumps special sentencing rule

In State v. Casey, No. 100,176 (Kan. App. July 17, 2009), the Court of Appeals agreed with my position that SB 123 mandatory drug treatment trumps the special rule allowing imprisonment for an offense that was committed while on felony bond. The court reversed Casey’s sentence and remanded for resentencing.

The court conducted a throrough analysis of the applicable statutes and held:

Based on the legislative history of Senate Bill 123, part of which became K.S.A. 21-4729 and K.S.A. 21-4603d(n), and the rules of statutory construction, we determine that the legislature intended for the drug abuse treatment sanction outlined in K.S.A. 21-4603d(n) and K.S.A. 21-4729 to trump the prison sanction outlined in K.S.A. 21-4603d(f)(3). Accordingly, we reverse Casey's sentence and remand for resentencing Casey to certified drug abuse treatment in accordance with K.S.A. 21-4603d(n) and K.S.A. 21-4729.
The court also noted that other COA panels' opinions on this issue in State v. Andelt, 40 Kan. App. 2d 796, 798, 195 P.3d 1220 (2008) and State v. Andelt, No. 98,665, unpublished opinion (September 19, 2008) were recently taken up by the KSC. The Andelt cases have been consolidated and are scheduled for oral argument in the KSC on September 14, 2009. Thus, the KSC may have a decision on this issue in the next few months.

[Update: on August 18, 2009, the state filed an untimely PR with a motion to file instanter, which we were suprised to find that the KSC granted on September 18, 2009. In our experience, the KSC had been completely inflexible with the 30-day limit for filing a PR. On January 11, 2010, the KSC entered an order holding that it had improvidently granted the motion to allow the petition for review instanter, dismissing the state's PR as untimely and ordering immediate issuance of the mandate.]

Thursday, July 02, 2009

Age of defendant is an element of Jessica's Law offense

Randall Hodgkinson won in State v. Bello , No. 99,225 (Kan. July 2, 2009), reversing a Hard-25 life sentence imposed pursuant to K.S.A. 21-4643 (Jessica's Law). The KSC affirmed Mr. Bello's convictions for aggravated criminal sodomy and aggravated indecent liberties with a child, but reversed the life sentence because the State failed to charge and the trial court failed to instruct the jury that Mr. Bello was over 18 years old at the time of the offenses.

The court rejected the State's argument that statutory citations in the charging document gave sufficient notice of the penalty. Citing Apprendi, the court also rejected the State's argument that the age of the defendant was "an element in a sentencing statute" and not an element of the offense. The court held:
At Bello's trial, the State presented no evidence as to his age, and the trial court did not instruct the jury to make a finding that Bello was age 18 years or older. Therefore, based on the facts reflected in the jury verdict, without the sentencing judge finding the additional fact of Bello's age, the statutory maximum sentences prescribed for the crimes of aggravated indecent liberties of a child and aggravated criminal sodomy were to be found in the KSGA nondrug offense sentencing grid along the lines for a severity level 3 felony and a severity level 1 felony, respectively. See State v. Gould, 271 Kan. 394, Syl. ¶ 4, 23 P.3d 801 (2001) ("A judge may not impose a more severe sentence than the maximum sentence authorized by the facts found by the jury."). To increase the penalty beyond that, i.e., to sentence Bello for an off-grid offense under K.S.A. 21-4643, the fact that Bello was age 18 years or older at the time he committed the offense needed to have been submitted to the jury and proved beyond a reasonable doubt. See Gould, 271 Kan. 394, Syl. ¶ 2.
The KSC remanded the case for resentencing on the convictions as on-grid felonies pursuant to the KSGA.

[Update: this case was voted 2009 ADO case of the year.]