Friday, July 27, 2012

Interlock, impoundment, but not both

Carol Longenecker Schmidt won in State v. McGuckin, No. 106,208 (Kan. App. July 20, 2012) (unpublished), vacating a Sedgwick County DUI sentence in part.  The state charged Mr. McGuckin with a DUI. At sentencing, the district court ordered that Mr. McGuckin’s vehicles be impounded and simultaneously required him to drive only cars equipped with ignition interlock devices. 

The COA held that K.S.A. 2010 Supp. 8-1567(1)(1) allows for one or the other:
There is no mistaking the meaning of the "either … or" phrasing of the sentencing options. The phrase clearly conveys that the district court may impose use of an interlock device or require impoundment of vehicles but not both. 
Because the district court erred, and Mr. McGuckin had already been subject to the full measure of the impoundment punishment, the COA vacated the remainder of the ignition interlock punishment.

[Update:  the state did not file a PR and the mandate issued on August 23, 2012.]

Alternative means of DUI manslaugther

Michelle Davis won in State v. Shaw, No. 106,015 (Kan. App. July 20, 2012), obtaining a new trial in a Franklin County DUI manslaughter case.  The issue requiring reversal stemmed from Mr. Shaw's claim that a jury instruction that allows conviction based on an unintentional killing "committed in the (1) commission of, (2) attempt to commit, or (3) flight from a DUI" presents alternative means and that the state did not present any evidence that Mr. Shaw was attempting to commit or in flight from a DUI.  The COA (and apparently the state) agreed that this presents an alternative means case:
Under the plain language of K.S.A. 21-3442, there are three alternative means to commit the crime of involuntary manslaughter while driving under the influence of alcohol: the unintentional killing of a human being committed in the (1) commission of, (2) attempt to commit, or (3) flight from an act described in K.S.A. 8-1567 and amendments thereto. The State does not deny that this is an alternative means case.
The COA went on to find that the state had not presented any evidence of flight from a DUI:
Alternatively, the State contends that it presented sufficient evidence of flight. Although the State made no argument during the trial that the evidence established flight from a DUI, the State asserts on appeal that Shaw was "trying to get home without being caught driving under the influence" and was therefore fleeing from the commission of DUI. The citation the State gives to support this statement is merely to Ameigh's testimony that the collision occurred while he and Shaw were returning to Shaw's house from Gardner. Although the record establishes that the accident occurred near Shaw's home, there is nothing in the record that supports the State's contention that Shaw was "trying to get home without being caught driving under the influence."
Moreover, our Supreme Court has treated "flight" as coming after a completed crime, not an ongoing crime. Under the ordinary meaning of the language of K.S.A. 21-3442, there must be evidence of a separate flight from the crime of DUI to support a conviction under this alternative means. Here, there was absolutely no evidence presented at trial that Shaw committed involuntary manslaughter in flight from a DUI. Therefore, because there was insufficient evidence to support one of the alternative means, the conviction was in error.
[Update: the state filed a PR on August 10, 2012].

[Further update: the KSC denied the state's PR and the mandate issue on May 22, 2013.]

Need factual basis for Alford plea

Donald R. Snapp won in State v. Ebaben, No. 102,129 (Kan. July 20, 2012), reversing the district court's denial of Mr. Ebaben's motion to withdraw his plea in a Marion County sexual battery prosecution.  The KSC detailed the somewhat convoluted process by which Mr. Ebaben entered an Alford plea and reviewed K.S.A. 22-3210(a)(4), which requires that for a plea of guilty or no contest, the district court must be satisfied there is a factual basis for the plea:
A comparison of the facts in Ebaben's case with our prior caselaw demonstrates the recitation at the plea hearing was simply too bare-boned to conclude on review that the trial court fulfilled its statutory duty of "satisfying itself" that a factual basis for the plea existed. Without fulfilling that duty, the trial court as a matter of law had no basis to find that Ebaben's plea was fairly and understandingly made. We hold the trial court abused its discretion in finding a sufficient factual basis to support the plea.
The KSC went on to hold that, absent a proper factual basis, the plea cannot be considered knowing and voluntary:
K.S.A. 22-3210(a)(4)'s purpose of ensuring that a plea is knowingly and voluntarily entered is defeated if the district court is presented with no evidence to establish the defendant's conduct falls within the elements of the charged crime.
As a result, the KSC held that the district court was required to allow Mr. Ebaben to withdraw his plea.

Wednesday, July 25, 2012

Failure to advise of postrelease warrants plea withdrawal

Chirstine Larson won a plea withdrawal for her client in State v. Helms, No. 106,726 (Kan. App. July 20, 2012) (unpublished), allowing the withdrawal of guilty plea to forgery and identity theft charges in a Seward County case.  The appeal followed a pro se K.S.A. 60-1507 motion alleging that the plea was not knowingly entered because Helms was not advised of postrelease supervision at the plea hearing.  The COA ultimately held that the district court's failure to advise Helms of postrelease supervision at the plea hearing constituted manifest injustice because it was a violation of Helms' due process rights.  The manifest injustice showing was required because it was a plea withdrawal motion that was filed after sentencing.

The State originally charged Helms with with one count of forgery, one count of identity theft,  one count of possession of marijuana, and one count of possession of drug paraphernalia.  At his first appearance, Helms was advised of the charges against him and the possible sentences he faced. Helms told the court that he would proceed pro se.  Helms subsequently entered a guilty plea to the felony charges of forgery and identity theft.  At the plea hearing, the court advised him of the statutory range for prison time, but did not advise him of the mandatory postrelease supervision (until the sentencing hearing).  The court also misinformed Helms that he faced a range of 7-23 months incarceration on each count (which is incorrect because criminal history can only be applied to the primary count).
 
On appeal, the COA panel granted the plea withdrawal, noting that postrelease supervision is a direct consequence of a conviction, just like incarceration or a fine.  The court stated that a defendant must be advised of postrelease release supervision at the plea hearing.  If they are not so advised, it is a violation of the defendant's due process rights, and the plea must be set aside.  The court also ruled that the district court misadvised Helms on the maximum penalty for the two charges.  The court ultimately found the errors in the case were not harmless.  The court applied the constitutional harmless error standard explained in State v. Ward, 292 Kan. 541, 556-65, 256 P.3d 801 (2011) as follows:
The State, as the party benefitting from the error here, has the burden of proving the district court's error was harmless. Other than reciting the basic facts and a conclusory statement that the record clearly reflects Helms made knowing and voluntary pleas, the State fails to brief why the due process violation was harmless. A point raised incidentally in a brief and not argued there is also deemed abandoned.  Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008).
This case is noteworthy because a post-sentencing plea withdrawal is hard to come by.  But it appears that with the new harmless error analysis from Ward, that might not always be the case.

Friday, July 13, 2012

Reasonable people don't ignore cops' questions

Jacquelyn E. Rokusek won in State v. Mueller, No. 106,389 (Kan. App. July 27, 2012)(unpublished), affirming Judge Martin's suppression order in a Douglas County DUI prosecution.  The COA majority summarized the case as follows:
The Douglas County District Court concluded that a highway patrol trooper had violated this rule when he pulled his marked patrol car into a private driveway where another driver had pulled in and stopped his car. The officer had effectively detained the driver without cause, and the district court suppressed evidence developed after the stop that the driver had been under the influence of alcohol.
The State has appealed, arguing that nothing more than a legal, voluntary encounter took place between the officer and the driver—after all, an officer may approach us and ask questions in public places, and we may respond or not respond as we wish.But the test for a voluntary encounter is that the person feels free to leave or to decline to answer questions. Here, the officer had sped up on a mostly deserted street shortly after 2 a.m. to close the distance between his car and the driver's, and then he had followed the car onto a residential street and into a driveway. The officer then approached the car on foot while shining a flashlight on the driver and his passenger. And the officer immediately adopted an accusatory tone, not one that gave any indication that the driver was free to ignore the officer.
The COA majority analyzed these circumstances and concluded that the state had not proved that a reasonable person would feel free to leave:
Here, the officer briefly used his emergency lights to run a red light and drove at an increased rate of speed to catch up with Mueller (though we don't know whether Mueller saw the emergency lights). The officer followed Mueller through a left turn down a residential street that appeared to have no other traffic after 2 a.m. A reasonable person in Mueller's position is likely to perceive that the officer was following him and that a stop was about to happen. The officer followed Mueller into the driveway. When the officer approached, he didn't ask permission to ask questions, didn't ask about Mueller's welfare, and didn't communicate that Mueller was free to leave or to refuse to answer. The officer's tone was accusatory—“Live here?” followed, when Mueller said no, by a scolding, “No, you don't. No, you don't .” This accusatory tone continued when Mueller and his passenger said they were turning around, to which the officer skeptically replied that Mueller had turned his car off.
Officers are trained—for understandable reasons—to take control of a situation in a way that commands compliance. Based on our view of the videotape of this encounter, the officer's actions commanded compliance here. Nothing about the officer's conduct conveyed that Mueller was free to leave or to not respond to his questions—which is required for us to find a voluntary encounter. Further, the surrounding circumstances were intimidating enough that a reasonable person in Mueller's position wouldn't have felt free to back out of the driveway or ignore the officer once the officer approached the car. Although the State argues that Mueller “could have rolled up his window and ignored [the officer],” we can't imagine a reasonable person feeling free to do so.
I'm always amazed by courts that suggest the opposite--that a reasonable person would simply blow off an officer's orders or directions.  And I'm also frequently puzzled that prosecutors and law enforecement officers (and courts) would want to encourage suspects to have a big gray area where they might decide not to cooperate with officers.

[Update: the state did not file a PR and the mandate issued on Aug. 9, 2012.]

Tuesday, July 10, 2012

October 2012 Special KSC Docket (Overland Park)

Here are the criminal cases on the KSC docket for October 3, 2012, held in Overland Park. This is a special setting of the KSC at Johnson County Community College.


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.

October 3--Wednesday--a.m.

State v. Jerome Cheeks, No. 104,858 (Wyandotte)
Appeal from denial of DNA testing (petition for review)
Paul M. Dent

     1.  Whether denying DNA testing for second degree murder violates Equal Protection

State v. Lester Lawson, No. 103,509 (Leavenworth)
Direct appeal; Aggravated criminal sodomy
Meryl Carver-Allmond
[Rvd/Rmd; Johnson; April 5, 2013]

     1.  Improper admission of statements obtained in violation of Sixth Amendment
     2.  Failure to instruct on essential element of offense

State v. Terry Diaz, No. 100,735 (Johnson)
Direct appeal (petition for review); Possession with intent to sell
Randall L. Hodgkinson
[Petition denied as improvidently granted Nov. 9, 2012]

     1.  Improper admission of prior bad act evidence
     2.  Improper admission of "expert" testimony
     3.  Improper amendment of complaint
     4.  Prosecutorial misconduct (burden shifting closing argument)

Friday, July 06, 2012

Couple of cert petitions on juvenile priors

Here and here are a couple of cert petitions that we recently filed seeking review of whether the state can use juvenile adjudications as priors without proof to a jury beyond a reasonable doubt.  We have been seeking resolution of that question (on which there is a deep split of authority) almost ever since Apprendi was decided (see our previous blog discussion here and here and here).  Recently on Sentencing Law and Policy, Doug Berman noted (here) that a similar case had made the SCOTUS relist, prompting him to wonder if there was any interest from the SCOTUS in finally resolving this split.  Although the SCOTUS denied the petition prompting Berman's post in May, these petitions are in that same line.

[Update: the SCOTUS denied the petitions without comment on October 1, 2012.]

Must prove protective order to show stalking as charged

Rick Kittel won in State v. Hardy, No. 105,270 (Kan. App. June 29, 2012)(unpublished), reversing a Finney County stalking conviction.  The COA agreed that, as charged and instructed, the state had to prove the existence of a protective order to sustain a conviction for stalking:
The existence of a protective order prohibiting a defendant from having contact with a targeted person is an element of K.S.A. 2009 Supp. 21-3438(a)(3). Here, because the existence of such an order is an element of this offense, the State was required to prove the existence of a protective order which prohibited Hardy from contacting Maxfield.
. . . . 
Here, the State produced no evidence of a protective order stating that Hardy was prohibited from having any contact with Maxfield. Indeed, the stipulation, which represented the conditions of the protective order, did not say that Hardy shall not have any contact with Maxfield. To the contrary, the stipulation stated that Hardy was to have no contact directly or indirectly with Maxfield, except to communicate about their joint children. Based strictly on the language of the complaint and the stalking instruction, the State failed to prove the existence of a protective order prohibiting Hardy from having any contact with Maxfield.
Because the state did not prove the offense as charged and instructed, the COA reversed.

[Update: the state did not file a PR and the mandate issued on August 2, 2012.]

Tuesday, July 03, 2012

August 2012 KSC docket

Here are the criminal cases on the KSC docket for August 27-31, 2012. 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.

August 27--Monday--a.m.

State v. Evelyn Wells, No. 103,559 (Sedgwick)
Direct appeal; Rape/Sodomy
Korey Kaul
[Affirmed; Rosen; Dec. 14, 2012]
  1. Improper prosecutorial argument (misstating law)
  2. Alternative means (criminal sodomy)
  3. Improper exclusion of defense evidence
  4. Answering jury question outside defendant's presence
  5. Improper imposition of hard-25 sentence
State v. Reginald Stafford, No. 103,521 (Sedgwick)
Direct appeal; Rape
Carl F.A. Maughan
[Affirmed; Rosen; Dec. 14, 2012]
  1. Failure to sever co-defendant's trial
  2. Failure to grant evaluation of complaining witness
  3. Failure to strike juror for cause
  4. Improper admission of hearsay statements/exhibits
  5. Improper prosecutorial argument
  6. Insufficient evidence
State v. Douglas LeClair, No. 101,201 (Saline)
Direct appeal (petition for review); Failure to register
Meryl Carver-Allmond
[Reversed; Nuss; Oct. 26, 2012]
  1. Insufficient evidence to show failure to register
State v. Christopher Britt, No. 103,727 (Johnson)
Direct appeal; Rape/Aggravated indecent liberties
Lydia Krebs
[Affd/Vac/Rmd; Moritz; Nov. 2, 2012]
  1. Alternative means
  2. Improper prosecutorial argument
  3. Life sentence Cruel or Unusual Punishment

August 28--Tuesday--a.m.

State v. John Backus, No. 102,951 (Wyandotte)
Direct appeal; First-degree murder
Michael Bartee
[Affirmed; Johnson; Nov. 2, 2012]
  1. Failure to give lesser for second-degree murder
  2. Improper Allen instruction
  3. Failure to grant new trial (new evidence)
  4. Improper admission of inflammatory photographs
  5. Defendant mentally retarded
State v. Francis Everett, No. 100,529 (Smith)
Direct appeal (petition for review); Manufacture
Randall L. Hodgkinson
[Rvd; Luckert; March 29, 2013]
  1. Improper prior bad act evidence
  2. Improper late amendment of complaint
  3. Improper response to jury question re hung jury
  4. Failure to recall jury after evidence of jury misconduct
State v. Adam Ardry, No. 101,311 (Sedgwick)
Sentencing appeal (petition for review)
Patrick H. Dunn
[Rvd/Rmd; Rosen; Oct. 5, 2012]
  1. Failure to exercise discretion to consider lesser sentence when revoking probation
State v. Jason Schaeffer, No. 104,503 (Shawnee)
Sentencing appeal; First-degree murder
Nancy Ogle
[Affimed; Beier; Oct. 19, 2012]
  1. Whether sentence resulted from partiality, prejudice, or corrupt motive

August 29--Wednesday--a.m.

State v. John Prine, No. 103,242 (Reno)
Direct appeal (transfer); Rape/Aggravated criminal sodomy
Matthew J. Edge
[Affirmed; Beier; May 31, 2013]
  1. Improper admission of prior bad act evidence
  2. Amended K.S.A. 60-455 violates Ex Post Facto Clause
State v. Randy Hart, No. 101,723 (Elk)
Direct appeal (petition for review); Aggravated indecent liberties
Shawn Minihan
[Affirmed; Beier; June 7, 2013]
  1. Insufficient evidence of age of complaining witness
  2. Improper prosecutorial argument (vouching)
  3. Jury instructions broader than charging document
  4. Improper admission of prior bad act evidence
  5. Erroneous limiting instruction re prior bad act evidence
State v. Edward Spear, III, No. 104,206 (Reno)
Direct appeal; Aggravated indecent liberties
Lydia Krebs
[Affd/Rvd; Luckert; July 5, 2013]
  1. Improper admission of prior bad act evidence
  2. Insufficient evidence
  3. Life sentence is Cruel or Unusual Punishment 
State v. Karl Beaman, No. 103,361 (Wyandotte)
Direct appeal; Rape
Heather R. Cessna
[Affd/Vacd/Rmd; Biles; Oct. 19, 2012]
  1. Improper jury trial waiver
  2. Failure to grant continuance
  3. Failure to grant depature

August 30--Thursday--a.m.

State v. Heather Hilton, No. 102,256 (Ellis)
Probation violation appeal (petition for review)
Matthew J. Edge
[Remanded to COA; Johnson; Oct. 19, 2012]
  1. Whether probation violation appeal moot
  2. Improper probation violation
State v. Travis Montgomery, No. 102,119 (Shawnee)
Probation violation appeal (petition for review)
Carl Folsom, III (brief), Korey A. Kaul (argue)
[COA dismissal as moot afffirmed; Johnson; Oct. 19, 2012]
  1. Whether probation violation appeal moot
  2. Improper probation violation
State v. Wesley Warren, No. 104,662 (Seward)
Direct appeal; Aggravated indecent liberties
Christina M. Waugh
[Reversed; Moritz; Sept. 28, 2012]
  1. Insufficient evidence
State v. James Campbell, Jr., No. 101,860 (Riley)
Direct appeal (petition for review); Possession with intent
Patrick H. Dunn
[Rvd/Rmd; Moritz; May 3, 2013]
  1. Fourth Amendment violation (warrantless entry to residence)

August 31--Friday--a.m.

In re Douglas Girard, No. 103,505 (Clay)
KSVPA appeal (petition for review)
Sam S. Kepfield
[Affirmed; Nuss; Jan. 11, 2013]
  1. Whether actuarial tests used to determine status subject to Daubert
State v. Ricky Stovall, No. 100,704 (Shawnee)
Direct appeal (petition for review)
Gerald E. Wells
[Rvd/rmd; Johnson; Nov. 22, 2013]
  1. Failure to allow counsel to withdraw due to conflict