Friday, July 31, 2015

September 2015 KSC docket

Here are the criminal cases on the KSC docket for September 14-18, 2015.  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 at the appellate court website (here) and archived (here) if you would like to watch any of these arguments.

September 14--Monday--a.m.
State v. Charles Shelly, No. 109,292 (Brown)
Direct appeal (petition for review); distribution of precursor
Nancy Ogle
[Sentence vacated and remanded per Snellings]
  • Improper dismissal of appeal due to late notice of appeal
State v. Cara Perry, No. 109,506 (Brown)
Sentencing appeal (petition for review)
Carol Longenecker Schmidt
[Reversed; Beier; March 25, 2016]
  • Improper classification of precursor severity level
 State v. Richard Williams, No. 106,645 (Sedgwick)
Direct appeal (petition for review); criminal threat
Rachel Pickering (brief); Heather R. Cessna (argue)
[Affirmed; Luckert; February 12, 2016]
  • Insufficient evidence of criminal threat
  • Insufficient evidence of alternative means
State v. Gregory Rosa, No. 108,807 (Leavenworth)
Direct appeal (petition for review); possession
Korey A. Kaul
[Affirmed; Stegall; May 27, 2016]
  • Insufficient evidence of possession
  • Improper admission of prior bad acts
  • Improper prosecutorial argument

September 15--Tuesday--a.m.

State v. Brock Collins, No. 108,660 (Sedgwick)
Sentencing appeal (petition for review)
Samuel Schirer
[Affirmed; Biles; December 23, 2015]
  • Failure to make BIDS fee findings
  • Improper term of probation for misdemeanor
State v. Reginald Dupree, No. 110,311 (Sedgwick)
Direct appeal; felony murder
Michael P. Whalen
[Affirmed; Luckert; April 29, 2016]
  • Improper limitation of aiding and abetting instruction
  • Improper amendment of complaint
  • Insufficient evidence of felony murder
  • Failure to charge aiding and abetting
  • Failure to give compulsion defense instruction
State v. Nicholas Dupree, No. 111,518 (Sedgwick)
Direct appeal; felony murder
Kristen Patty
[Affirmed; Luckert; April 8, 2016]
  • Speedy trial violation
  • Batson violations
  • Failure to exclude statements
  • Gruesome photographs
State v. Michael Jordan, No. 106,409 (Sedgwick)
Direct appeal (petition for review); theft
Randall L. Hodgkinson
[Affirmed; Beier; March 25, 2016]
  • Compulsory joinder violation
State v. Tyrone Walker, No. 110,712 (Sedgwick)
Direct appeal; first-degree murder
Carol Longenecker Schmidt
[Affirmed; Stegall; May 27, 2016]
  • Failure to give lesser-included offense instruction
  • Improper prosecutorial argument
  • Failure to grant motion to suppress

September 16--Wednesday--a.m.

State v. Anthony Hankins, No. 109,123 (Johnson)
Motion to correct illegal sentence (petition for review)
Sarah Morrison Rapelye (brief); Catherine A. Zigtema (argue)
[Rvd/rmd; Johnson; April 22, 2016]
  • Improper classification of prior conviction
State v. Michael Daws, No. 108,716 (Wyandotte)
Direct appeal (petition for review); aggravated burglary
Lydia Krebs (brief); Peter Maharry (argue)
[Reversed; Biles; February 19, 2016]
  • Insufficient evidence of aggravated burglary
  • Failure to instruct on lesser-included offense
  • Failure to grant mistrial
State v. Henry Petersen-Beard, No. 108,061 (Saline)
Sentencing appeal (petition for review)
Michelle A. Davis
[Affirmed; Stegall; April 22, 2016]
  • Lifetime postrelease and registration are unconstitutional

September 17--Thursday--a.m.

State v. Brett Seacat, No. 110,360 (Kingman)
Direct appeal; first-degree murder
Reid T. Nelson
[Affirmed; Rosen; January 15, 2016]
  • Improper admission of hearsay statements
  • Improper exclusion of evidence of suicidal tendencies of victim
  • Improper exclusion of defense expert testimony
  • Improper exclusion of victim's prior drug use
  • Failure to strike witness' answer

September 18--Friday--a.m.

State v. Marquis Marshall, No. 110,976 (Sedgwick)
Direct appeal; capital murder
Sarah Ellen Johnson
[Affirmed; Rosen; December 18, 2015]
  • Improper denial of psychiatric evaluation
  • Improper denial of request for new counsel
  • Improper judicial comment on guilt

Sunday, July 19, 2015

Just in Case you want to keep up to date on the law

Paige Nichols has started a new regular podcast called Just in Case that will help keep us up to date on recent SCOTUS, Tenth Circuit, and KSC case law.  Paige is only the smartest attorney I've ever worked with (plus she actually makes continuing education fun), so I know I'll be a regular listener.  You should be, too!  Thanks to Monnat and Spurrier for supporting this new resource for Kansas Defenders!

Saturday, July 18, 2015

Promise to shelter suspect's children leads to habeas relief

Jean K. Gilles Phillips and KU Innocence Project intern Abby West won in Sharp v. Rohling, No. 14-3090 (10th Cir. July 15, 2015), obtaining federal habeas relief from a state murder prosecution from Shawnee County.  The Kansas Supreme Court affirmed Ms. Sharp's conviction in 2009, rejecting her claim that statements made to investigators were involuntary and should have been suppressed.  The Tenth Circuit held that this holding was a "decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding" and thus warranted relief under federal habeas law:
The Kansas trial court found Ms. Sharp was not “operating under any promises.” The supreme court reviewed that determination and concluded substantial competent evidence showed Detective Wheeles did not promise Ms. Sharp leniency, or alternatively, any promise of leniency was conditioned on Ms. Sharp not inculpating herself. As we point out below, the court was not clear on this next point, but it also decided Ms. Sharp was not operating under a promise to help find shelter for her and her children, or alternatively, any promise to help Ms. Sharp’s children was a noncoercive collateral benefit because it would not directly benefit Ms. Sharp. We conclude (1) the supreme court’s voluntariness determination was based in significant part on its fact findings about Detective Wheeles’s alleged promises; (2) it unreasonably found Detective Wheeles did not promise Ms. Sharp leniency; and (3) it unreasonably found Detective Wheeles did not promise to help Ms. Sharp and her children; or it decided any such promise did not induce Ms. Sharp to confess, which is a voluntariness determination and not a factual finding.
The Tenth Circuit held that the improper admission was not harmless and therefore granted habeas relief, subject to retrial by the state.

Here is coverage in the Lawrence Journal-World.

Saturday, July 11, 2015

Failure to investigate and call critical witnesses results in new trial

Richard Ney won in Gadbury v. State, No. 111,367 (Kan. App. June 19, 2015)(unpublished), granting Mr. Gadbury a new trial in a Ford County rape and aggravated criminal sodomy prosecution. Mr. Gadbury sought habeas relief based on ineffective assistance of counsel on several points. The COA noted that this case, where the defense was based on consent, depended on the jurors' views of credibility of the complaining witness and Mr. Gadbury. In that light, the COA held that trial counsel was deficient in several respects: (1) failure to obtain the complaining witness' medical records, failure to pursue a motion for independent psychological evaluation of the complaining witness, (3) failure to call a critical witness, and (4) failure to investigate and impeach one of Mr. Gadbury's ex-wives' credibility.  After finding multiple deficiencies, the COA held a new trial was required:
[t]he cumulative effect of trial counsels' demonstrated errors has resulted in prejudice to Gadbury's right to a fair trial. The evidence of Gadbury's guilt was not overwhelming. We are convinced that there is a reasonable probability that, but for the ineffective assistance of counsel Gadbury received, the trial result would have been different.
[Update: the state did not file a PR and the mandate issued on July 23, 2015.]

DNA testing available if in custody when petition filed

Paul M. Dent won in State v. Cheeks, No. 111,279 (Kan. June 19, 2015), obtaining an order for further proceedings under K.S.A. 21-2512, related to DNA testing. The only question was whether Mr. Cheeks was "in custody" for purposes of the statute. He had been in prison when he filed his petition pursuant to K.S.A. 21-2512, but had been released on parole during the proceedings. The KSC held that if a person is in prison when he or she files such a petition, he has met the "in custody" requirement of the statute:
The statute does not require that an individual be in state custody when a petition is heard. Rather, the statute makes the custody status of the convicted person of interest only at the time the petition is filed: A "person in state custody . . . may petition the court that entered the judgment for forensic DNA testing." (Emphasis added.) K.S.A. 21-2512. The legislature's use of the present tense in that sentence tells all.

Because there is no dispute that Cheeks remained in prison at the time his K.S.A. 21-2512 petition for DNA testing was filed, he was "in state custody" at the relevant time. This case must be remanded again to the district court so that the merits of the petition may be considered.

Sunday, July 05, 2015

Prosecutor must do more than refer to agreement to uphold plea bargain

Peter Maharry and Theresa Barr won in State v. Jones, No. 104,516 (Kan. June 12, 2015), obtaining a resentencing order in a Sedgwick County aggravated robbery prosecution. In particular, Ms. Jones argued that the state had failed to join in a recommendation for a downward dispositional departure, as promised in the plea agreement. A majority of the KSC agreed:
Since the plea agreement was referenced at the hearing, one could give the sentencing judge the benefit of the doubt that he would have inquired further if he did not know the agreement's terms.  But the Hill court relied on more than the sentencing court's statements demonstrating awareness of the agreement's terms, which is important because the State has the contractual duty here—not the court.

The prosecutor's conduct in Jones' case more closely resembles what we would expect of a prosecutor who agreed to stand silent as part of a plea agreement. And while the State's burden set by Hill is not high, the failure to openly express the State's agreed-to recommendation or direct the sentencing judge to the plea agreement's specific provisions that the State was bound to and ensure it was in the court's possession is the tipping point.

The prosecutor had an affirmative duty arising from the plea agreement to recommend a particular sentence, which is what Jones bargained for when she agreed to plead guilty as charged. And the only consideration she received in exchange for the plea was the State's promise to join in her efforts to be sentenced to probation rather than imprisonment.
Because the state failed to uphold its part of the agreement, the KSC remanded for resentencing.

Statute requiring attorneys to file joint motions violates separation of powers

In 2014, the Kansas Legislature passed K.S.A. 20-3301(c), a statute that imposes deadlines for all state court decisions, including appellate decisions.  As part of that statute, the statute directs "all counsel after those deadlines have fun to submit a joint request to the Supreme Court that a decision be entered 'without further delay.'"

In State v. Buser, No. 105,982, on September 11, 2014, Meryl Carver-Allmond argued a case at the KSC involving challenges to retroactive application of 2011 amendments to the Kansas Offender Registration Act.  As of March 2015, the KSC had not issued a decision, reaching the time limits of the 2014 statute.  On March 26, 2015, Ms. Carver-Allmond filed a motion asking the KSC to find the mandatory application of the 2014 statute an unconstitutional violation of the separation of powers. The state did not respond.

On July 1, 2015, the KSC granted Ms. Carver-Allmond's motion and issued an order (here) holding that K.S.A. 20-3301(c) is unconstitutional.  In its sixteen-page order, the KSC reviewed the separation of powers doctrine in detail and agreed that attorneys are officers of the court and that legislative interference with an attorney's ethical duties:
Directing attorneys to ultimately compel the Supreme Court to release its decision by a date calculated by the legislature's formula is an inordinate degree of legislative control over the judicial power.
The KSC agreed that expediting appeals is a valid objective, but that the statute in this case exceeded the legislative power:
while this apparent legislative objective [expediting appeals] is worthwhile, requiring attorneys to compel the court to release its decision within 30 days . . . in furtherance of that objective violates the separation of powers doctrine. The legislature cannot enforce an obligation of the judiciary that it owes solely to the people.
So, as a result, the KSC held that the statute violated the separation of powers doctrine that is part of the Kansas Constitution:
In summary, through K.S.A. Supp. 20-3301(c)(2), the legislature directs attorneys to seek exprdited judicial findings by filing a joint request that seeks one of two unconstitutional remedies under subsection (c)(3).  En route to that conclusion we necessarily have decided the legislature's mandatory court-deadline in subsection (c)(1) is also unconstitutional.  Subsections (c)(1), (2), and (3) violate the separation of powers doctrine. . .
Without these subsections, the remainder of subsection (c) is meaningless.  Accordingly, we grant Carver-Allmond's motion and relieve her of any purported duty to comply with subsection (c)(2).
This is a helpful decision for several of us who practice in the KSC and who have pending cases. 

Here is a blog post in the Topeka Capital-Journal reporting on the order and some reaction to it.

[Update: on July 14, 2015, the Attorney General filed a motion to withdraw the July 1, 2015 order.]

[Further update: on September 25, 2015, the KSC denied the state's motion to withdraw. Here is the KSC order.]