Saturday, March 28, 2015

May 2015 KSC docket

Here are the criminal cases on the KSC docket for May 2-7, 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.

May 4--Monday--a.m.

State v. Eddie Thomas, No. 110,585 (Johnson)
Direct appeal; Felony murder
Korey A. Kaul
[Affirmed; Johnson; July 24, 2015]
  1. Improper instruction on combined theory murder
  2. Failure to suppress evidence
  3. Prosecutorial misconduct
State v. Tiffany Jones, No. 104,516 (Sedgwick)
Sentencing appeal (petition for review)
Theresa L. Barr (brief); Peter Maharry (argue)
[Rvd/rmd; Biles; June 12, 2015]
  1. Violation of plea agreement
Raymond Fuller v. State, No. 108,714 (Sedgwick)
Habeas appeal (petition for review)
Michael P. Whalen
[Affd/Rvd; Beier; December 23, 2015]
  1. Unsupported findings of fact
  2. Conflict of interest at post-trial motions and sentencing

May 5--Tuesday--a.m.

State v. David Ryce, No. 111,698 (Sedgwick)
State appeal (petition for review)
Patrick H. Dunn
  1. Constitutionality of criminal refusal statute
State v. Gregory Nece, No. 111,401 (Saline)
State appeal (petition for review)
Michael S. Holland, II
  1. Fourth Amendment violation
State v. Darwin Wycoff, No. 110,393 (Saline)
State appeal
Roger D. Struble
  1. Constitutionality of criminal refusal statute
State v. Derick Wilson, No. 112,009 (Shawnee)
State appeal
Kevin P. Shepherd
  1. Constitutionality of criminal refusal statute

May 6--Wednesday--a.m.

State v. Daniel Tims, No. 109,472 (Jackson)
State appeal (petition for review)
Kevin P. Shepherd
[Sustained; Rosen; August 14, 2015]
  1. Uncounseled prior diversion as prior conviction
State v. Jerome Cheeks, No. 111,279 (Wyandotte)
K.S.A. 21-2512 appeal
Paul M. Dent
[Rvd/rmd; Beier; June 16, 2015]
  1. Whether "custody" required for DNA testing
State v. David Kershaw, No. 109,548 (Shawnee)
Direct appeal (petition for review); Agg assault on a LEO
Sarah Ellen Johnson
[Affirmed; Johnson; September 25, 2015]
  1. Failure to give voluntary intoxication instruction
  2. Exclusion evidence supporting theory of defense
  3. Improper instruction that voluntary intoxication was not a defense

May 7--Thursday--a.m.

State v. Raymond Swint, No. 107,516 (Ford)
Direct appeal (petition for review); Agg Indecent Liberties
Heather R. Cessna
[Affirmed; Biles; July 2, 2015]
  1. Improper exclusion of defense evidence
  2. Insufficient evidence
  3. Prosecutorial misconduct
  4. Disproportionate sentencing
State v. Mical Barlow, No. 108,830 (Seward)
State appeal (petition for review)
Patrick H. Dunn
[Affirmed; Beier; February 19, 2016]
  1. Stand Your Ground immunity
State v. Brent Bollinger, No. 110,945 (Bourbon)
Direct appeal; Felony murder
Kurt P. Kerns
[Affirmed; Rosen; June 26, 2015]
  1. Insufficient evidence of element of arson
  2. Arson statute is unconstitutionally vague
  3. Prosecutorial misconduct
  4. Improper admission of hearsay

Improper search of host's backyard violates guest's Fourth Amendment rights

Stephen J. Atherton won in State v. Talkington, No. 107,596 (Kan. March 6, 2015), affirming Judge Larson's suppression order in a Lyon County drug prosecution.  The COA had held that the search in this case did not take place within the curtilage of a house and therefore reversed.  The KSC noted recent SCOTUS Fourth Amendment jurisprudence that clarified that a traditional property-based understanding to the Fourth Amendment is now part of the analysis, in addition to the reasonable expectation of privacy understanding, but based on the arguments presented, primarily made a traditional curtilage analysis:
To summarize, while the lack of a privacy fence weighs somewhat in favor of the State, the no trespassing and no solicitation signs, the lack of a path leading to the backyard, the inability to see the area from a public vantage point coupled with the attempt to conceal the baggie, and the partial enclosure all weigh in favor of the district court's finding of curtilage. Accordingly, we hold the panel should have affirmed the district court's finding the factor favored Talkington.
The KSC held that the COA had improperly engaged in its own factfinding regarding some of these factors:
As discussed above, the panel reweighed the evidence and failed to consider some of the factual findings relied on by the district court concerning each Dunn factor. These factual findings are significant because they weighed in favor of a finding of curtilage. While the panel was free to reach a de novo conclusion whether the factors individually and collectively suggested the area was curtilage, it needed to first apply a substantial competent evidence standard to the district court's factual findings by accepting as true all inferences to be drawn from the evidence which support or tend to support the findings.

While the unkempt nature of the backyard, the lack of enclosed fencing, and the lack of obstructions to view the backyard may suggest the area was not curtilage, the contraband's close proximity to the back porch steps, the partial enclosure by the rock wall/treeline and chain-link fence, the no trespassing/no solicitation signs on the house, the inability to see the area from a public vantage point, and the lack of a sidewalk or path leading to the backyard weigh in favor of a finding of curtilage. Accordingly, the panel erred in reversing because the district court's findings of facts were supported by substantial competent evidence, and caselaw supports its legal conclusion that the area was curtilage.
Finally, the KSC held that a social guest has "standing" to raise a Fourth Amendment claim regarding the host's house's curtilage.  As a result, the KSC affirmed the suppression order.

Right to counsel and notice in SVPA cases

In In re Zishka, No. 112,116 (Kan. App. March 6, 2015), Mr. Zishka won his pro se appeal obtaining a new annual review hearing with appointment of counsel.  Mr. Zishka had been involuntarily committed under the Sexually Violent Predator Act and is entitled to an annual review hearing.The Court of Appeals held that the district court failed on several points: (1) Mr. Zishka was entitled to appointment of counsel, which is even more important because SVPA respondents are not entitled to be present at the annual hearing in person, (2) the district court should have considered having an suitable independent person examine Mr. Zishka, and (3) the district court should have given Mr. Zishka notice of the annual review hearing.  These failures required reversal and remand for a proper hearing.

[Update: the state did not file a PR and the mandate issued on April 9, 2015.]

Prosecutor's argument does not functionally elect an alternative means

Meryl Carver-Allmond won in State v. Owen, No. 102,814 (Kan. March 13, 2015)(unpublished), obtaining a new trial in a Sedgwick County forgery and identity theft prosecution.  The Court of Appeals had held that the forgery conviction was an alternative means case and that the state failed to prove one of the alternative means.  The state filed a petition for review only on the issue that the state failed to prove one of the alternative means.

Subsequent to the Court of Appeal's decision, the KSC held in a different case that forgery is not an alternative means case.  But the state did not ask for review of that holding in Ms. Owen's case.  As a result, it was not before the KSC:
Pointedly, however, the State's petition for review in this case did not ask this court to review the portion of the Court of Appeals' decision that determined how the statutory language of the forgery statute creates alternative means of committing the crime. Our general rule is that “[t]he court will not consider issues not presented or fairly included in the petition [for review].” “Under Supreme Court Rule 8.03(g)(1), a party must allege that an issue was decided erroneously by the Court of Appeals in order for the issue to be properly before the Supreme Court on petition for review.” The State did not allege that the Court of Appeals erroneously found the existence of alternative means in this case and, consequently, that issue is not before us to review. Thus, we will limit our review to the two issues that we deem to be fairly included in the State's petition for review.


(This may be why this is an unpublished opinion, a fairly unusual situation in the KSC)

In any case, the KSC decided the two issues before it, reaffirming its precedent that the state has to present sufficient evidence of alternative means and that the prosecutor's argument does not functionally elect a means.  As a result, the KSC reversed and remanded the convictions.

Saturday, March 21, 2015

Refiling as subterfuge violates speedy trial

Patrick H. Dunn won in State v. Anunda, No. 110,629 (Kan. App. Feb. 27, 2015)(unpublished), affirming Judcge Martin's order dismissing a Douglas County aggravated sexual battery prosecution. The state had dismissed a prior case a few days prior to jury trial and refilled on a similar, but lesser offense. Judge Martin had ruled that the dismissal was not for necessity, but a subterfuge to avoid the speedy trial limits. The COA upheld that finding:
To summarize our narrow ruling here, we hold: the State can violate the speedy trial rights of an accused when it arrests the accused for a particular charge and others, then does not actually include that particular charge in the information, then does not ask that the accused be bound over on that particular charge at the preliminary hearing, then, 10 days before trial asks that the particular charge be included as an alternate count, relying on the preliminary hearing record for probable cause, and, when that request is denied, then, as a subterfuge, dismisses the case 4 days before the trial and simultaneously refiles a case containing only that particular charge if the tacked together statutory speedy trial time in the cases exceeds that prescribed by the applicable section of K.S.A. 2013 Supp. 22-3402.
The COA also noted that the state had failed to brief any argument to reverse the district court's alternative holding that the case should also be dismissed under the Due Process Clause.

[Update: the state did not file a PR and the mandate issued on April 2, 2015.]

Saturday, March 14, 2015

Court of Appeals improperly considered aggravating factors and reweighed evidence

Janine Cox won in State v. Jolly, No. 106,680 (Kan. Feb. 20, 2015), obtaining affirmance of Judge Young's downward departure sentence in a Saline County statutory rape case.  The district court had considered the lack of any criminal history; that Mr. Jolly took responsibility for the crime by pleading  guilty and the resulting benefit to the victim by sparing her "further humiliation or embarrassment"; and Dr. Barnett's opinion that Jolly was at low risk to reoffend.

The state appealed and the COA reversed reasoning that the lack of criminal history alone was not sufficient to support a downward departure sentence, that the district court erred in using an inaccurate and incomplete report as the basis for a departure sentence and in finding Jolly took responsibility for the rape. Additionally, it found the aggravating factors of his being a 43-year-old, trusted family friend, with knowledge of the victim's prior sexual abuse, who decided to assume the role of a lover with her, outweighed his lack of criminal history.

The KSC applied the plain language of the Jessica's Law statute and held that it was different than other departure statutes that require weighing of aggravating and mitigating factors:
the language of the statute is straightforward: "[T]he sentencing judge shall impose the mandatory minimum term of imprisonment . . . unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure." (Emphasis added.) K.S.A. 21-4643(d). The statute makes no provision for the weighing of aggravating circumstances against the mitigating circumstances to determine if a departure should be imposed. In this way, the statute is unique as other sentencing statutes consider both mitigating and aggravating factors.
The KSC recognized that it had noted aggravating factors in previous Jessica's Law cases, but reversed any such case law: "we disapprove of any language in our caselaw that would indicate aggravating circumstances can be weighed against mitigating circumstances when considering a departure in a Jessica's Law sentencing."

Although the KSC clarified that the district court is not expected to sentence a defendant in a vacuum and will naturally consider aggravating factors when determining a sentence in general, it is not part of the departure analysis itself.  And more importantly, it is not part of the appellate review of a departure sentence.  The only question is whether substantial and compelling reasons support the departure.

The KSC went on to find that the COA had exceeded its standard of review by drawing its own conclusions regarding the evidence supporting mitigating factors:
Jolly again argues the majority exceeded its standard of review by reweighing the evidence concerning Dr. Barnett's evaluation before the district court. We agree. As observed by the dissent, no objection was made to Dr. Barnett's qualifications to testify as an expert, that he lacked a proper foundation for his opinion, or to his report being admitted into evidence. While Jolly clearly provided inaccurate or incomplete information to Dr. Barnett, the district court took those inaccuracies into account in weighing his testimony. By rejecting the district court's conclusion regarding the weight and veracity to be given to Dr. Barnett's testimony and report, the majority erroneously stood in the shoes of the sentencing judge and determined what it would have found.
Because the record contained sufficient evidence to support the district court's findings of mitigating factors, the KSC affirmed.