Friday, October 26, 2012

Probation revocation may or may not be moot after sentence completion

Matthew J. Edge won in State v. Hilton, No. 102,256 (Oct. 19, 2012), reversing the COA's dismissal of her probation revocation appeal.  Before her appeal was heard on the merits, she completed her sentence, and the COA dismissed the appeal as moot.  This is a question that comes up in different contexts--whether a sentencing or probation violation appeal is moot after completion of the sentence.  The KSC noted another case decided the same day, where it held that, if a client has stipulated to the violation and the prison sentence is expired, the appeal is moot:
Regardless of whether Hilton's inability to follow the rules and perform on probation resulted in the immediate revocation of one probation or two, her conduct while on probation will be what is germane to any future assessment of her amenability to probation. In other words, it is not the sanction for violating probation that makes a person nonamenable to probation, it is the violation itself. Accordingly, as in Montgomery, this appeal presents a moot issue.
This leaves open the possibility (or even likelihood), though, that if the probation violation had been contested, the appeal would not be moot.   If "the violation itself" is contested, the resulting potential finding of nonamenability to probation in a future case would still be a direct consequence that would support an appellate determination, even after completion of the sentence.

In any case, the KSC, held that Ms. Hilton's appeal was moot, but ultimately held that the case should be heard on appeal because the issue presented is likely of repetition yet evading review.  The KSC acknowledged that, given the fact that most probation violation appeals involve short sentences, it is quite unlikely that most can get effective appellate review before expiration of the sentence.  So if there is an important legal issue presented by the case, this doctrine is likely to apply and did apply in this case.

Tuesday, October 23, 2012

Chief Judge Malone

Here is a press release announcing that the Kansas Supreme Court has appointed COA Judge Tom Malone as Chief Judge, filling the vacancy created by Chief Judge Greene's passing.  I expect it will be a challenging time to lead the court (fiscal challenges, turnover on the court, technology changes in the courthouse, etc.).  Good luck Chief Judge Malone!

Tuesday, October 09, 2012

Judge Greene

Here is the press release announcing the sad news that Chief Judge Richard Greene died this weekend from complications arising from heart complications.  It's no great secret that Chief Judge Greene was extremely intellectually interested in the Fourth Amendment (even though he came from a mostly civil-law practice background) and therefore we frequently had very scholarly in-court discussions with him and decisions from him.  Moreover, he had a great temprement as a jurist in general and was just starting to hit his stride as leader of the COA.  A sad day for the Kansas Judiciary.

Friday, October 05, 2012

SCOTUS to decide if judicial factual-finding to increase mandatory minimum violates right to jury trial

The U.S. Supreme Court granted certiorari today in Alleyne v. United States, No. 11-9335, to answer the question whether under the Sixth Amendment, a jury, not a judge, must find that the defendant
brandished a firearm in order to trigger the 7-year mandatory minimum under 18 USC 924(c).  In other words, the Court is taking up the question whether Harris v. United States, 536 U.S. 545 (2002), should be overruled.

This case will be important to Kansas state-level practitioners because it will likely determine the constitutionality of the procedure Kansas uses to impose the Hard-50 life sentence.  Under K.S.A. 21-6620, the court makes the determination of whether aggravating factors exist to increase a Hard-25 life sentence to a Hard-50 life sentence (for persons convicted of first-degree murder).  Essentially, the court is making a factual finding that increases the mandatory minimum.  This is the issue that will be addressed in Alleyne, so it will definitely be worth watching.



Due Process, even in prison

Louis Brouillard, pro se, won in Broulliard v. Warden, No. 106,965 (Kan. App. Sept. 28, 2012)(unpublished), obtaining habeas relief in a prison disciplinary case.  Mr. Brouillard had been disciplined for possession of some betting slips and pornography found on a computer to which he had access at an inmate work area.  After contesting the discipline and seeking habeas relief pursuant to K.S.A. 60-1501, Mr. Brouillard presented his Due Process claim to the COA.  Acknowledging a relaxed standard for review of institutional discipline, the COA majority held the prison had failed to meet even minimum standards:
Here, corrections officers found contraband in a work area common to Brouillard and a number of other inmates. The record is unclear as to exactly how many other inmates worked in or had access to that area. But more than a few apparently did. The evidence also showed that other inmates used the same computer as Brouillard on a daily basis. There is no evidence Brouillard somehow acted in concert with any of the other inmates with respect to the contraband. From that evidence alone, the pornography and the betting slips could not be attributed to Brouillard any more than to one or more of the other inmates using the computer or having access to that work area. The testimony that Brouillard had a password to the computer really doesn't advance the prison's position. The fact is presented in just that sort of disconnected, abstract way. There was no evidence that the other inmates lacked passwords or that only Brouillard (or someone with this password) could have created the betting slips or accessed and copied the pornography. In that way, the password is comparable to the informant in Broussard—the evidence lacks sufficient foundation to implicate the inmate in the charged violation. In short, the evidence against Brouillard fails to display adequate clarity and specificity to support the violations, even under the some-evidence standard. The evidence placed Brouillard and a number of other inmates in proximity to the contraband. But imposing liability on Brouillard based on that sort of shared proximity reflects arbitrary decisionmaking that cannot be squared with the constitutional process due inmates as outlined in Hill.
The constitutional defect may be illustrated through a rhetorical foil counsel for the prison presented on appeal: “If Brouillard's arguments are accepted, any contraband found in a prison dormitory setting or work area would be insufficient to support the imposition of discipline in a prison setting.” Prison officials, then, seem to believe that if they find contraband in the common area of a dormitory, they can then select one inmate among the residents housed there and prove a disciplinary violation against him or her based on nothing more. Select how? Maybe by lot or birthday nearest the date of the offense or general incorrigibility. It could be the prison officials believe they can charge all of the residents with possession of the contraband. Either way, that sounds arbitrary, perhaps more strikingly so than the disciplinary action taken against Brouillard. But neither comports with due process.
[Update: the prison did not file a PR and the mandate issued on Nov. 1, 2012.]

Insufficient evidence of lewd fondling or touching

Christina Kerls won in State v. Warren, No. 104,662 (Kan. Sept. 28, 2012), obtaining reversal of a Seward County aggravated indecent liberties conviction.  The KSC acknowledged that there may have been evidence of a crime presented, but not evidence of the crime charged:
Here, the State presented no evidence that Warren touched his penis in order to arouse or satisfy his or E.W.'s sexual desires. Rather, if anything, the evidence showed that Warren exposed his penis to arouse or satisfy the sexual desires of E.W. or himself, or both. As Warren points out, while touching his penis in order to expose it may have met the definition of lewd and lascivious behavior, it clearly was not sufficient to establish the charge of aggravated indecent liberties with a child.
Furthermore, the KSC addtionally held that not only was the evidence insufficient in relation to the charge, it was insufficient in relation to the offense as the jury was instructed:
Further, even if the State had proved an intentional touching under the aggravated indecent liberties statute, that evidence would nevertheless have been insufficient to prove that charge for a third reason—i.e., the evidence did not support the elements of the charge as outlined in the jury instruction. 
The trial court instructed the jury on aggravated indecent liberties as follows: 
"To establish this charge [of aggravated indecent liberties with a child], the following claims must be proved:  
1. That the defendant submitted to lewd fondling or touching of his person by removing his penis from his pajama, with intent to arouse or satisfy the sexual desires of either E.W. or the defendant, or both."
The State presented no evidence that Warren "submitted to" any lewd fondling or touching, and it seems elementary that one cannot "submit to" one's own actions. Merriam-Webster defines "submit" as "1(a): to bow to the will or authority of another: . . . (b) to allow oneself to become subjected." Webster's Third New International Dictionary 2277 (1993).
Some people might think this is a "technicality."  But I don't think Due Process is a technicality.  Its foundational.

Objection before trial on stipulated facts sufficient

Rick Kittel won in State v. Kelly, No. 102,210 (Kan. Sept. 28, 2012), obtaining a remand to the COA, which had held that a suppression issue was procedurally defaulted because defense counsel did not renew a pre-trial objection during the trial on stipulated facts (a procedure used to preserve issues for appeal when the facts are not really contested).  The KSC acknowledged that it had recently held that a pretrial objection followed by a contested bench trial to the same judge did not require an additional objection to preserve the issue for appeal.  In this case, the KSC extended that reasoning to a bench trial on stipulated facts, even if it involves a different judge:
We conclude that having more than one judge involved in the proceedings does not alter the two-fold rationale of the decision in Bogguess. First, a defendant's stipulation to facts for the purpose of a bench trial precludes a defendant from asking the trial judge to ignore—in other words, suppress—evidence that a defendant has agreed can be admitted and considered. Second, because the case is tried solely on stipulated facts there will be no new evidence or arguments submitted that might change the ruling on the motion to suppress. Consequently, there is no legal or factual basis to revisit the suppression issue.


So, the case heads back to the COA for a decision on the merits.