Friday, November 18, 2011

Can't appeal "extent" of dispositional departure

Steven M. Joseph, Christopher M. Joseph, and Sonya L. Strickland won in State v. Johnson, No. 105,241 (Kan. App. Nov. 10, 2011)(unpublished), affirming Judge Schmidt's downward departure sentence in a Shawnee County attempted electronic solicitation case.  The parties had entered into a plea agreement in which they agreed that Mr. Johnson would go to prison, but that the parties would jointly recommend the low number in the box-55 months.  Judge Schmidt sua sponte gave notice that she was considering a dispositional depature to ISP for 60 months.  After receiving substantial psychological evidence, Judge Schmidt imposed the middle of the box and granted the dispositional depature to ISP.

The COA first held that although a party can appeal the extent of a durational departure, it cannot appeal the "extent" of a dispisitonal departure--there is either a dispositional departure or there is not.  And the state in this case admitted that the district court's findings underlying the departure were substantial and compelling.

The state's last point on appeal was that the district court shouldn't have considered some of the psychological evidence as a basis for the dispositional departure.  The COA held that the state had failed to reserve this question for appeal:
Here, the State is not appealing from an order dismissing a charging document, from an order arresting judgment, or upon an order granting a new trial. Also, when the district court overruled the State's objection to the admission of the doctors' reports, the State did not reserve the question for appeal. Further, K.S.A. 21-4721(a) does not provide authority for this court to consider the State's second issue on appeal. This statute allows the State to appeal a departure sentence, and the State has appealed Johnson's departure sentence in the first issue of its brief. However, the State provides no authority for this court's jurisdiction to address the second issue on appeal, which is either a complaint that Johnson breached the plea agreement or a complaint that the district court erroneously considered evidence in a sentencing hearing. Without a question reserved by the prosecution, we conclude there is no statutory authority for this court to consider the State's second issue on appeal.


As a result, the COA dismissed the second issue on appeal.  It's sort of interesting to consider that, even had the state properly reserved the issue for appeal, would it have mattered to Mr. Johnson?  An appeal on a question reserved presupposes that the matter is concluded and that the outcome of the appeal should not affect a defendant.

[Update: the state did not file a PR and the mandate issued on December 14, 2011.]

Saturday, November 05, 2011

December 2011 KSC docket

Here are the criminal cases on the KSC docket for December 5-9, 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.

December 5--Monday--a.m.

State v. Jeffrey Raskie, No. 102,847 (Johnson)
Direct appeal; Aggravated indecent liberties
Jessica J. Travis
[Affd/Vacd/Rmd; Luckert; Feb. 17, 2012]
  1. Admission of propensity evidence
  2. Improper prosecutorial argument
  3. Admission of evidence without sufficient foundation
  4. Insufficient evidence
  5. Improper instruction on burden of proof
  6. Failure to make findings on sentence proportionality
State v. Jose Portillo, No. 102,558 (Wyandotte)
Direct appeal; Rape
Ryan J. Eddinger
[Affd/Vacd/Rmd; Johnson; April 27, 2012]
  1. Insufficient evidence of penetration
  2. Improper admission of forensic interview recording
  3. Improper sentencing for charged offense
State v. Jamaal Summers, No. 101,902 (Wyandotte)
Direct appeal; First-degree (premeditated) murder
Michelle A. Davis
[Affd/Vacd/Rmd; Rosen; Feb. 3, 2012]
  1. Failure to suppress statements
  2. Improper admission of hearsay
  3. Improper question suggesting defense lying

December 6--Tuesday--a.m.

State v. Gabriel Nambo, No. 100,464 (Sedgwick)
Sentencing appeal (petition for review); Aggravated robbery
Ryan J. Eddinger
[Affirmed; Nuss; August 3, 2012]
  1. Whether unarmed accomplice is required to register
State v. Joshua Coman, No. 100,494 (Sedgwick)
Sentencing appeal (petition for review); Criminal sodomy
Carl F.A. Maughan
[Revd/Rmd; Johnson; March 30, 2012]
  1. Whether registration required for conviction
  2. Constitutionality of criminal sodomy statute
State v. John Sampson, No. 102,535 (Sedgwick)
Direct appeal; Felony murder
Michelle A. Davis
[Affirmed; Moritz; May 3, 2013]
  1. Violation of sequestration order
  2. Refusal to permit impeachment of witness with prior conviction

December 7--Wednesday--a.m.

State v. Anthony Murphy, No. 100,178 (Geary)
Direct appeal (petition for review); Possession with intent
Shawn E. Minihan
[Affirmed; per curiam; Feb. 1, 2013]
  1. Fourth Amendment violation (invalid consent)
  2. Improper admission of lab report

State v. Angela Anderson, No. 100,173 (Geary)
Direct appeal (petition for review)
Christina Waugh
[Petition dismissed as improvidently granted December 30, 2011]
  1. Fourth Amendment violation (invalid warrant)
  2. Improper admission of prior bad act evidence

December 8--Thursday--a.m.

State v. Kenneth Wilson, No. 102,931 (Osborne)
Direct appeal; First-degree (premeditated)
Heather R. Cessna (brief); Randall L. Hodgkinson (argue)
[Affirmed; Moritz; Sept. 28, 2012]
  1. Improper admission of 911 tape
  2. Improper admission of unproven prior bad act evidence
  3. Improper prosecutorial argument
  4. Improper finding of aggravating circumstances
State v. Montrez Washington, No. 102,521 (Sedgwick)
Direct appeal; First-degree murder
Carl F.A. Maughan
[Affirmed; Luckert; Jan. 20, 2012]
  1. Lack of probable cause for juvenile court to bind over
  2. Improper Allen instruction
State v. Antwan Peppers, No. 101,551 (Shawnee)
Direct appeal; First-degree premeditated murder
Lydia Krebs
[Affirmed; Beier; May 4, 2012]
  1. Improper admission of gang affiliation
  2. Improper instruction of burden of new trial
  3. Improper limiting instruction of bad act evidence
  4. Improper prosecutorial argument