Saturday, March 29, 2014

April-May 2014 KSC Docket

Here are the criminal cases on the KSC docket for April 28-May 1, 2014.  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 on any of these arguments.

April 28--Monday--a.m.

State v. Bobby Edwards, No. 106,299 (Sedgwick)
Direct appeal (petition for review); Agg robbery
Shawn E. Minihan (brief); Carol Longenecker-Schmidt (argue)
[Affirmed; Rosen; June 27, 2014]
  1. Insufficient evidence
  2. Failure to instruct jury that robbery could not be incidental to theft
  3. Failure to instruct jury that threat or force must precede taking
  4. Improper admission of expert testimony
  5. Improper limitation of defense examination
  6. Ineffective assistance of counsel
State v. Monh Suady, No. 105,603 (Johnson)
Direct appeal (petition for review); Agg robbery
Lydia Krebs
[Affd/Rmd to COA; Rosen; June 27, 2014]
  1. Insufficient evidence of alternative means
  2. Taking was incidental to theft
  3. Multiplicity
  4. Prosecutorial misconduct
In re A.M.M.-H., No. 109,355 (Johnson)
Juvenile sentencing appeal (petition for review)
Michael J. Bartee
[Rvd/rmd; Beier; Aug. 8, 2014]
  1. Whether technical violations of conditional release are violation of sentence

April 29--Tuesday--a.m.

State v. Keaira Brown, No. 106,111 (Wyandotte)
Direct appeal; Felony murder
Lydia Krebs
[Affirmed; Biles; Aug. 15, 2014]
  1. Improper felony murder instruction
  2. Insufficient evidence of alternative means of felony murder
  3. Improper certification for prosecution as adult
  4. Prosecutorial misconduct
  5. Felony murder sentence unconstitutional
State v. Kenneth Crawford, No. 103,881 (Barton)
Direct appeal (petition for review); Agg kidnapping/Agg indecent liberties
Daniel E. Monnat
[Affirmed; per curiam; Sept. 19, 2014]
  1. Prosecutorial misconduct
State v. Christina Ortega, No. 106,210 (Finney)
Direct appeal (petition for review); Attempted agg interference with parental custody
Randall L. Hodgkinson
[Affd/Rvd; Luckert; Oct. 3, 2014]
  1. Failure to give mistake of law instruction
  2. Prosecutorial misconduct
  3. Insufficient evidence of overt act supporting aggravated offense
  4. Failure to give lesser-included offense
  5. Insufficient evidence of alternative means
State v. William Holt, No. 107,158 (Shawnee)
Direct appeal; First-degree murder
Meryl Carver-Allmond
[Affd/Vacd; Luckert; Oct. 31, 2014]
  1. Prosecutorial misconduct
  2. Improper reasonable doubt instruction
  3. Cumulative error
  4. Hard-50 sentence violates Alleyne

April 30--Wednesday--a.m.

State v. Gabriel DeLatorre, No. 107,905 (Ford)
Direct appeal; Felony murder
Lydia Krebs (brief); Corrine Johnson (argue)
[Affd/Rvd; Biles; Aug. 15, 2014]
  1. Failure to give lesser-included offense instruction
  2. Insufficient evidence of cruel or inhuman punishment
  3. Failure to give unanimity instruction
  4. Prosecutorial misconduct
State v. Tynisha Story, No. 106,329 (Wyandotte)
Direct appeal; First-degree murder
Joanna Labastida
[Affirmed; Beier; Sept. 5, 2014]
  1. Improper admission of prejudicial evidence
  2. Failure to give limiting instructions re: other bad acts and prior bad acts
  3. Failure to give lesser-included offense instruction for voluntary manslaughter
  4. Prosecutorial misconduct

May 1--Thursday--a.m.

State v. Quartez Brown, No. 106,894 (Sedgwick)
Direct appeal; Felony murder
Joanna Labastida
[Rvd/rmd; Johnson; Aug. 15, 2014]
  1. Failure to inquire into request for new counsel
  2. Insufficient evidence
  3. Failure to give lesser-included offense instructions
  4. Improper classification of alternative conviction
State v. Kevin Brown, No. 108,218 (Sedgwick)
Direct appeal; Felony murder
Michael P. Whalen
[Affirmed; Johnson; July 3, 2014]
  1. Lack of jurisdiction
  2. Insufficient evidence of aiding and abetting
  3. Deficient jury instructions
State v. Kiara Williams, No. 108,586 (Sedgwick)
Direct appeal; Felony murder
Stephen J. House
[Affirmed; Johnson; July 3, 2014]
  1. Improper giving of sympathy instruction
  2. Failure to give mere association instruction
  3. Ineffective assistance of counsel (guilt based defense)
State v. Allen Julian, No. 105,695 (Rice)
State appeal (petition for review)
Gregory D. Bell
[Affirmed; King; Sept. 5, 2014]
  1. Improper vehicle search

Saturday, March 22, 2014

Defendant who attempted to raise sentencing issue on appeal entitled to raise claim in habeas motion

Elizabeth Seale Cateforis at the KU Defender Project won in Martinez v. State, 109,471 (Kan. App. Feb. 28, 2014)(unpublished), obtaining a new sentencing hearing in a Wyandotte County attempted rape prosecution.  Mr. Martinez was convicted of attempted statutory rape and given a hard-25 sentence under Jessica's Law.  His conviction and sentence was affirmed on direct appeal.  Before oral argument in the direct appeal, counsel filed a motion seeking to raise an additional issue based on State v. Horn, 288 Kan. 690, 206 P.3d 526 (2009)(blogged about here), but the KSC denied the motion to supplement and did not consider the sentencing issue.  Mr. Martinez then claimed that appellate counsel was ineffective for failing to properly raise the sentencing issue in his direct appeal.  The COA held that counsel was not ineffective and that Mr. Martinez was not denied due process:
Martinez' appellate counsel was not ineffective because he tried to raise the issue on direct appeal. After the Horn decision and before oral argument, Martinez' appellate counsel moved to file a supplemental brief, but the Kansas Supreme Court refused to consider the issue.  There are two differences between the present case and Berriozabal: the timing of the motion for supplemental briefing and the arguments articulated in favor of such briefing.
Martinez' appellate due process rights were not violated because he has no constitutional right to a uniform decision from the Kansas Supreme Court (i.e., he was not entitled to the opportunity Berriozabal was given to raise the Horn issue in a supplemental brief). Although actions of state judicial officers acting in their representative capacity are regarded as actions of the State within the meaning of the Fourteenth Amendment to the United States Constitution, there is no constitutional right to consistent decisions from an appellate court.
But the COA went on to hold that Mr. Martinez was entitled to a new sentence:
The doctrine of res judicata does not bar Martinez' current K.S.A. 60–1507 claim because while the Horn issue was raised on direct appeal, it was not decided on the merits. But a K.S.A. 60–1507 motion cannot serve as a vehicle to raise an issue that should have been raised on direct appeal, unless the movant demonstrates exceptional circumstances excusing earlier failure to bring the issue before the court. Supreme Court Rule 183(c)(3).  Horn was clearly an applicable, intervening change in the law on attempted Jessica's Law crimes, and our Supreme Court's refusal to entertain the issue could be characterized as an unusual event. Therefore, the motion, files, and records of this case conclusively establish that Martinez is entitled to receive a nondrug severity level 1 felony sentence.
As a result, the COA remanded for a new sentence.

[Update: the state did not file a PR and the mandate issued on April 3, 2014.]

Saturday, March 15, 2014

No KORA requirements in 1989, so no KORA obligations as part of sentence in 2012

Joanna Labastida won in State v. Dandridge, No. 109,066 (Kan. App. Feb. 21, 2014), vacating the district court's order requiring offender registration as part of a Seward County aggravated incest sentence.  The 2012 conviction was based on acts taking place in 1989.  The COA held that noted that generally, sentencing provisions in effect at the time of the offense apply and applied the sentencing provisions from 1989 in this case:
At the time Dandridge committed his offense, there was no offender registration requirement in Kansas. Because offender registration is part of a criminal sentence and because Dandridge must be sentenced based on the law in effect at the time he committed his crime, we conclude the district court erred by ordering Dandridge to register as a sex offender. Accordingly, we vacate Dandridge's sentence and remand for resentencing with directions that the district court refrain from imposing registration requirements under KORA. We do not need to reach Dandridge's argument that the current version of the KORA violates the Ex Post Facto Clause of the United States Constitution.
The nature of offender registration requirements is a very hot topic and will likely be dealt with in many other cases in the not-too-distant future.

[Update: the state did not file a PR and the mandate issued on March 27, 2014.]

Saturday, March 08, 2014

Appellate counsel should have raised issue on improper burden of proof instruction

Jessica R. Kunen won in Miller v. State, No. 103,915 (Kan. Feb. 14, 2014), obtaining a new trial in a Douglas County first-degree murder prosecution.  After his conviction was affirmed on direct appeal, Mr. Martin filed a motion pursuant to K.S.A. 60-1507 claiming ineffective assistance of counsel.  In particular, he claimed that appellate counsel was ineffective for failing to raise an issue regarding a misstatement of law in the burden of proof instruction.  The state conceded that the instruction was wrong, but held that the appellate counsel was not deficient nor did the error prejudice Mr. Miller.

The KSC held that appellate counsel's performance was constitutionally deficient:
But Miller's appellate counsel did not testify that she declined to raise the instructional error to focus attention on other challenges in the direct appeal or after carefully considering it along with all other potential issues. Rather, the uncontroverted evidence shows she simply did not notice the error. And although she admitted a belief that the prosecutorial misconduct argument she did raise was stronger than the jury instruction issue that she missed, nothing in the record suggests the decision to raise one issue but not the other was the product of strategy. In other words, there was simply no professional judgment exercised in failing to bring this admitted instruction error before an appellate court.
The KSC also held that, if appellate counsel had raised the issue, it would have resulted in a finding of structural error and, therefore, the error was prejudicial.

Saturday, March 01, 2014

Statute allowing blood draw for traffic infraction unconstitutional

Reid T. Nelson won in State v. DeClerk, No. 109,759 (Kan. App. Feb. 7, 2014) affirming Judge Parrish's suppression order in a Shawnee County DUI manslaughter case.  Judge Parrish suppressed evidence obtained by warrantless seizure of blood over the state's argument that the blood draw was authorized by K.S.A. 8-1001, which purported to only require probable cause of a traffic infraction to justify a blood draw if a driver is involved in an accident causing death or serious injury; the state also argued that the blood draw was proper as the result of implied consent.  The COA reviewed cases from other jurisdictions and held that the statutory provision that purported to satisfy probable cause by a showing of a traffic violation was unconstitutional:
In light of this overwhelming and persuasive authority, we must conclude K.S.A. 2011 Supp. 8-1001(b)(2) is unconstitutional to the extent it requires a search and seizure absent probable cause the person was operating or attempting to operate a vehicle under the influence of drugs or alcohol. We are acutely aware the statute in question attempts to address the terrible toll impaired drivers inflict on our state's highways, but we are reminded of the "truism that constitutional protections have costs." Coy v. Iowa, 487 U.S. 1012, 1020, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988). While the State does have a significant interest in preventing accidents involving drugs and alcohol on the road, K.S.A. 2011 Supp. 8-1001(b)(2) does not further that interest. A traffic infraction plus an injury or fatality, without more, does not constitute probable cause that drugs or alcohol were involved in the accident.
Similarly, the COA held that the implied consent statute did not operate to authorize a blood draw:
"But the fact that people are 'accorded less privacy in . . . automobiles because of th[e] compelling governmental need for regulation,' [citation omitted], does not diminish a motorist's privacy interest in preventing an agent of the government from piercing his skin." [Missouri v. McNeely, 133 S. Ct. 1552, 1565 (2013).]  In all of the cases relied upon by the State, law enforcement had probable cause or reasonable grounds to believe the driver was operating a vehicle under the influence, and none of the cases stand for the proposition that the implied consent to chemical testing given by drivers on our state's roads under the Kansas implied consent law constitutes consent under the Fourth Amendment.
[Update: the state filed a PR on March 6, 2014.]
[Update: the KSC denied the state's PR and the mandate issued on June 23, 2014.]