Monday, January 31, 2011

No proper extension = no jurisdiction to revoke probation

Lydia Krebs won in State v. Hoffman, No. 103,133 (Kan. App. Jan. 28, 2011), reversing a Reno County probation revocation. The issue arose because of an improper extension of Mr. Hoffman's probation term:

the order at issue in this case did not inform Hoffman that he was entitled to a modification hearing and a judicial finding of necessity prior to having his probation extended. Again, the January 2007 order extending probation stated:

"Whereas it appears that the defendant has not completed fines, court costs, restitution or a sex offender treatment program in this matter.

"Now therefore it is ordered that the defendant's probation be extended for one year unless the defendant show cause why this order should not be issued by the 19th day of March, 2007.

"It is further ordered that the defendant shall be served with this order on or before the next reporting date of the defendant."

Because the order did not inform Hoffman that he was entitled to a modification hearing and a judicial finding of necessity prior to having his probation extended, Hoffman's consent to the order cannot be construed as a valid substitute for the procedural requirements of K.S.A. 2009 Supp. 21-4611(c)(8). For this reason, the January 2007 order extending Hoffman's probation was invalid, which means Hoffman's term of probation expired on March 19, 2007. Because the State did not commence proceedings to revoke Hoffman's probation within 30 days after his probation expired, the district court did not have jurisdiction to revoke Hoffman's probation. As such, the district court erred in denying Hoffman's motion to dismiss and granting the State's motion to revoke his probation.

We see these kinds of issues every now and then in probation revocation appeals. But if we don't find it until appeal, the underlying sentence is likely served out. So trial practitioners really need to carefully review the documents, even in what appears to be a routine probation revocation proceeding.

[Update: the state agreed to not file a PR, so the mandate quickly issued on February 7, 2011.]

Still reversed

Several months ago we blogged (here) about Michael Whalen's win in a sexually violent predator act prosecution. As reported there, the COA expressed harsh concern for what appeared, based on the state of the record at that time, to be the state using manufactured evidence. As also updated in that blog entry, the state later "found" some of the reports at issue and added them to the record and sought rehearing, which the COA granted.

The COA again reversed in In re Ontiberos, No. 100,362 (Kan. App. Jan. 28, 2011). The COA kept its original analysis regarding the right to effective assistance of counsel and misconduct. Regarding the use of the reports, the COA still was pretty harsh:
But the fundamental fact is clear; the documents contained in Exhibit 1 were not admitted into evidence and the State's attorney used them to cross-examine Ontiberos and his expert witness as if they were. The court explicitly stated the documents were not to be considered by the jury. We believe the prejudicial use of these records by the State was improper and denied Ontiberos a fair trial. Above all, the use of legally admissible evidence relevant to the issues is a hallmark of a fair trial.

. . . .

Ontiberos argues the State used a nonexistent prison report to cross-examine his expert, Dr. Barnett. In fact, in its brief the State conceded the point and told us the prison disciplinary report did not exist. . . . Then, after receiving our opinion criticizing the use of nonexistent evidence, the State claimed to have "found" the report buried in Exhibit 1 and asked us to rehear the matter. In the interests of justice, we did so.

The "found" document does not refer to a knife. It does report a disciplinary action taken by a prison official against Ontiberos in 1991 for having an ink pen with duct tape wrapped around it. The report concluded it was "less dangerous" contraband according to prison rules.

We cannot ignore the State's exaggeration of this report. Counsel asked Dr. Barnett, who was testifying for Ontiberos, about a 2003 prison incident where Ontiberos fashioned a knife out of a pen and duct tape. Assuming for the sake of the State's argument this time that this "found" document is the report that serves as the basis for the State's question, we see two obvious errors; the date of the incident and calling the contraband a knife.
Because Ontiberos' attorney did not object to these improper uses and because of other deficient performance, the COA remands for a new trial.

[Update: the state filed a PR on February 22, 2011 and Mr. Ontiberos filed a cross-PR on March 8, 2011.]

[Further update: the KSC granted both PRs on September 21, 2011.]

[Further update: the KSC reversed the district court and remanded for a new trial on August 17, 2012, blogged about here.]

Here is coverage on What the Judge Ate for Breakfast.

Friday, January 28, 2011

March 2011 KSC Docket

Here are the criminal cases on the KSC docket for March 7-11, 2011. 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 over the internet at the appellate court website (here) if you would like to listen in to any of these arguments.

March 7--Monday--a.m.

State v. Dana Deal, No. 98,292 (Cowley)
Direct appeal (petition for review); Second-degree murder (unintentional)
Lydia Krebs
[Affirmed; Luckert; Feb. 17, 2012]
  1. Insufficient evidence of unintentional but reckless act
  2. Failure to grant continuance
  3. Improper instruction on duty to retreat
  4. Improper admission of prior bad act evidence
State v. Carlos Montes-Mata, No. 98,883 (Lyon)
State appeal (petition for review)
Patrick H. Dunn
[Affirmed; Stutzman; June 24, 2011]
  1. Statutory speedy trial violation

March 8--Tuesday--a.m.

State v. Jamie Fredrick, No. 102,848 (Montgomery)
State appeal
Janine Cox
[Affirmed; Johnson; April 29, 2011]
  1. Offender registration for person adjudicated as juvenile in other state
State v. Corinthian Bricker, No. 99,394 (Johnson)
Motion to Withdraw Plea (petition for review)
Lydia Krebs
[Affirmed; Nuss; June 3, 2011]
  1. Denial of motion to withdraw plea

March 9--Wednesday--a.m.

State v. Samuel Rochelle, No. 101,341 (Saline)
Direct appeal; Agg Crim Sodomy/Agg Ind Liberties
Meryl Carver-Allmond (brief); Randall L. Hodgkinson (argue)
[Affirmed; Rosen; April 12, 2013]
  1. Allowing comfort person to sit with witness during testimony
  2. Improper Allen instruction
  3. State cross-appeal from downward departure sentence

March 10--Thursday--a.m.

State v. Nathan Inkelaar, No. 101,987 (Sedgwick)
Direct appeal; Rape/Agg Crim Sodomy/Agg Ind Liberties
Ryan Eddinger
[Affirmed; Luckert; Oct. 21, 2011]
  1. Improper admission of prior bad act evidence
  2. Prosecutorial misconduct
  3. Failure to prove and instruct jury on age of defendant
  4. Improper exclusion of third-party evidence
State v. Allen Jaben, No. 102,383 (Johnson)
State appeal (transfer)
William K. Rork
[Appeal denied; Moritz; June 1, 2012]
  1. Expungement
State v. Anthony Barnes, No. 100,719 (Sedgwick)
Direct appeal; First-degree murder
Heather Cessna
[Affirmed; Beier; Sept. 23, 2011]
  1. Failure to investigate competency to stand trial
  2. Improper jury trial waiver
  3. Improper finding of specific intent

March 11--Friday--a.m.

State v. Lafayette Cosby, No. 100,839 (Douglas)
Direct appeal; First-degree murder
Korey A. Kaul
[Affirmed; Beier; Sept. 9, 2011]
  1. Failure to instruct on voluntary manslaughter
  2. Improper exclusion of defense evidence
  3. Insufficient evidence of premeditation
  4. Prosecutorial misconduct

Tuesday, January 25, 2011

No safety concerns

Washburn student intern Joshua Mikkelsen and I won in State v. List, No. 102,851 (Kan. App. Dec. 23, 2010)(unpublished), reversing a Johnson County drug conviction. The COA agreed that law enforcement officers violated the Fourth Amendment when they detained Ms. List:
The officers decided to approach List and McDowell because it appeared to the officers that the two were arguing. Kearney testified that the purpose of the stop was to “make sure that all parties involved were safe and that everything was okay” and “that there was no crime that was occurring at the time.” The justification for the stop was limited to making sure List and McDowell were safe and presumably to prevent the verbal argument from escalating into a physical altercation. From the record, it appears that any argument between List and McDowell was over when the officers made contact. In fact, Kearney testified that when he made contact with List, he believed the argument was over. Further, McDowell had walked away from the vehicle and was already 50 feet away from List. Both parties appeared to be safe, and the officers had no indication that List and McDowell were going to continue arguing or physically harm each other. After establishing that both were safe, the scope of the public safety stop was finished. Neither the initial request for documentation proving List's identity nor the follow-up request for documentation proving List possessed a license to drive were necessary to effectuate the purpose of the stop.

Based on the facts presented and the applicable law, we find Kearney's request to List for identifying documentation exceeded the scope of the safety stop and thus violated List's constitutional rights.

Another in a series of cases where appellate courts hold tight on "safety" stops.

[Update: the state filed a PR on January 24, 2011.]

[Further update: the KSC denied the state's PR and the mandate issued on March 1, 2011.]

Saturday, January 22, 2011

Date of prior controls person/nonperson decision

Ryan Eddinger won in State v. McKinney, No. 102,906 (Kan. App. Dec. 17, 2010), obtaining a new sentencing hearing in a Leavenworth County failure to register prosecution. The issue involved whether a 2002 Oklahoma conviction for failure to register should be scored as a person or nonperson felony for the current offense. The COA applied a very recent case where the KSC held that the person/nonperson classification must take place in light of Kansas law at the time of the prior offense:
Our Supreme Court has recently resolved this question in State v. Williams. No. 98,667 (Kan. 2010): "In designating these [out-of-state] crimes as person or nonperson, the comparagle offeses in Kansas shall be determined as of the date the defendant committed the out-of-state crimes." This promotes the standard principle that the punishment for an offense is fixed as of the date the offense was committed.

McKinney's Oklahoma conviction for failing to register as a sex offender was a felony under Oklahoma law. But the comparable offense in Kansas was a nonperson felony in 2002. So the district court was wrong when it classified McKinney's Oklahoma conviction as a person felony for the purpose of calculating McKinney's criminal-history score.

This is a nice example of how a case can be in the "zone of victory." We lost the Williams case, but it is likely to have a pretty positive impact on lots of other defendants.

The question we have been asking is: how do you classify pre-1993 out-of-state convictions? Becuase there were no person/nonperson felonies at that time. We (and some other attorneys around the state) have been arguing that, under Williams, all pre-1993 out-of-state convictions should be classified as non-person.

[Update: the state did not file a PR and the mandate issued on January 21, 2011.]

Friday, January 21, 2011

Call for backup matters

Carl Folsom won in State v. Thomas, No. 98,123 (Kan. Jan. 21, 2011), reversing a Geary County possession conviction on Fourth Amendment grounds. After a brief encounter with Ms. Thomas appeared to be over, an officer asked if he could ask her a few more questions, resulting in an extended encounter, which included calling for back up. The state's main argument was that the extended encounter at issue was voluntary and, therefore, that the Fourth Amendment not implicated. The KSC reviewed caselaw acknowledging that, by itself, law enforcement going up to someone and asking questions does not turn a voluntary encounter into an investigatory detention. But the KSC also held that the facts in this case went beyond simple asking questions. In particular, the KSC held that calling for backup would have a similar effect to the presence of more than one officer--although it did not by itself transform an encounter, it was a very relevant factor in this case:
We conclude that Officer Brown's call for back-up, when combined with his other conduct, would convey to a reasonable person that he or she was not free to refuse to answer Brown's questions or otherwise terminate the second stage of the encounter. More specifically, both before and after making the call, Brown repeatedly asked Thomas questions about her drug use and possession. After the call, Thomas emptied her pockets for him, apparently in an attempt to prove her denials. He then asked to feel inside her pockets, and she threw her hands in the air. After Brown again told Thomas to "be honest with me," she confessed to possessing two crack pipes. In contrast to the first stage, at no time during the second stage did Brown tell Thomas she was free to leave.
The KSC went on to hold that the officer did not have reasonable suspicion to detain Ms. Thomas and, therefore concluded that the motion to suppress should have been granted.

This a nice example of how, even when an officer asks "Can I ask you just a couple more questions?" (i.e. the Lt. Columbo gambit), it does not necessarily make the resulting encounter voluntary. The circumstances of the resulting encounter still determine that question.

Here is coverage on

Wednesday, January 19, 2011

Kansas Defender applicant for COA

Here is a press release stating that 19 attorneys, including 6 judges, have applied for the vacant position on the Kansas Court of Appeals. As you can see, Randall Hodgkinson, co-author of this blog (and gifted appellate advocate), is an applicant. The position opened up when the Honorable Nancy Moritz Caplinger was appointed to the Supreme Court.

The nominating commission will interview the candidates February 17-18. Members of the public are encouraged to comment on the qualification of any of the applicants by writing to Anne E. Burke, c/o Carol G. Green, Clerk of the Appellate courts, 301 SW 10th Avenue, Topeka, Kansas. All written comments will be distributed to the full Commission for its review.

Here is coverage of the applicants by the CJonline and by the LJWorld.

[Update: here is the short list forwarded to the governor. It does not include Randall.]

[Further update: here is a Topeka-Capital Journal article reporting that the governor appointed District Judge David Bruns].

Friday, January 14, 2011

Finding of no possession upheld

Janine Cox won in State v. Crawford, No. 103,524 (Kan. App. Jan. 7, 2011)(unpublished), affirming Judge Sachse's dismissal of a Franklin County possession with intent to sell prosecution at preliminary hearing. The COA reviewed the record and law regarding constructive possession cases and held that the district court correctly dismissed the prosecution:
we turn to the evidence to determine whether there are incriminating circumstances linking Crawford to the drugs besides her mere presence at the scene. (1) Crawford's proximity to the drugs. The coin purse was found close to where she was standing, but Crawford denied it was hers and (2) the drugs in the coin purse were not in plain view. (3) Proximity of Crawford's possessions to the drugs. The officers searched the large purse on the table and determined that it was Crawford's, but the court suppressed the search and seizure of that purse. (4) Crawford's previous participation in the sale of a controlled substance. The only evidence of any prior involvement related to her arrest in January 2008, and those charges were dismissed. (5) Use of controlled substances. Crawford had been convicted of misdemeanor possession of paraphernalia which might infer prior use. (6) Suspicious behavior by her. We agree with the trial court that merely locking her cell phone would not constitute suspicious behavior under these facts. (7) Incriminating statements. All incriminating statements made after Crawford's arrest were suppressed and cannot be considered here.

At most, only two of the seven factors might support an inference of possession of the drugs; her proximity to the closed coin purse on the floor and her prior conviction for misdemeanor possession of paraphernalia. We agree with the district court that there was insufficient evidence linking Crawford to the possession of drugs found in the
coin purse.
As a result, the COA affirmed the dismissal.

[Update: the state did not file a PR and the mandate issued on February 10, 2011.]

Sunday, January 09, 2011

Arnold-Burger appointed to COA

Here is a press release (no longer available on line) announcing Governor Parkinson's appointment of Overland Park Municipal Judge Karen Arnold-Burger to the Kansas Court of Appeals, filling the vacancy created by Chief Judge Rulon's retirement:
Governor Mark Parkinson has appointed Karen Arnold-Burger of Overland Park as Judge of the Kansas Court of Appeals.

“Throughout her career, Karen has demonstrated a respect and passion for the law that will honorably serve the people of Kansas on the Court of Appeals,” said Parkinson. “She will bring with her decades of experience as well as a commitment to justice, and I am honored to appoint her.”

Arnold-Burger began her career as a labor relations attorney at Shell Oil Company before returning to Kansas to become a first assistant city attorney for the City of Overland Park. Arnold-Burger then became an assistant U.S. attorney at the District of Kansas, U.S. Attorney’s Office in Kansas City before serving the City of Overland Park again as a municipal judge, and since 1996, as a presiding judge. Currently, Arnold-Burger is also an adjunct faculty member for the Institute for Faculty Excellence in Judicial Education and the National Judicial College, as well as conducts courses and trainings across the country on behalf of the American Bar Association.

Arnold-Burger attended the University of Kansas where she received her bachelors’ in personnel administration, political science and psychology, as well as her juris doctorate. She has been decorated with many awards over her career, including the M. Barbara Award for Outstanding Contributions to Judicial Education in Kansas. Arnold-Burger also serves on a number of organizations, such as the Kansas Women Attorneys Association, the Johnson County Criminal Justice Advisory Council, and is the Kansas co-chair of the American Bar Association Membership Committee.
There is one more vacancy on the COA (created by Nancy Moritz' elevation to the KSC). The Nominating Commission is currently taking applications and will interview in early February. Here is a press release noting that, for the first time, Nominating Commission interviews will be open to the public. The Nominating Commission will forward names to Governor Brownback who will make his first appointment to the appellate courts this spring.