Saturday, December 12, 2015

January 2016 KSC docket

Here are the criminal cases on the KSC docket for January 25-29, 2016.  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.

January 25--Monday--a.m.

State v. Ebony Nguyen, No. 112,316 (Sedgwick)
Sentencing appeal
Joanna Labastida
[Affirmed; Nuss; May 20, 2016]
  • Failure to grant downward durational departure
State v. Shelbert Smith, No. 110,061 (Sedgwick)
Sentencing appeal
Michelle A. Davis
[Rvd/Rmd; Johnson; August 5, 2016]
  • Out-of-time notice of appeal (Ortiz)
State v. Kyle Beltz, No. 111,785 (Sedgwick)
Direct appeal; felony murder
Ryan J. Eddinger
  • Improper admission of prior drug sales and marijuana grow
  • Insufficient evidence of proximate cause of death
  • Failure to give self-defense instruction
  • Failure to give unanimity instruction on distribution

January 26--Tuesday--a.m.

State v. Sarah Sessin, No. 110,054 (Geary)
Direct appeal (petition for review); possession
Randall L. Hodgkinson
[Petitions for review dismissed by agreement; January 26, 2016]
  • Fourth Amendment violation
  • Improper aiding and abetting instruction
  • Insufficient evidence

January 27--Wednesday--a.m.

State v. Mitchell Northern, No. 112,955 (Wyandotte)
Sentencing appeal
Samuel Schirer
[Affirmed; Rosen; July 22, 2016]
  • Notice of appeal from sentence was timely because sentence not complete
  • If notice of appeal untimely, Ortiz exception applied
State v. Dana Chandler, No. 108,625 (Shawnee)
Direct appeal; first-degree murder
Nancy Ogle
  • Improper imposition of hard-50 sentences
  • Improper inference stacking
  • Improper admission of prior bad act evidence
  • Improper prosecutorial argument
State v. Jeff Dickey, No. 110,325 (Saline)
Probation violation appeal (petition for review)
Samuel Schirer
[Vacated; Stegall; October 7, 2016]
  • Improper admission of prior sentences after revocation
  • Improper scoring of prior burglary conviction in criminal history

January 28--Thursday--a.m.

State v. Breonna Wilkins, No. 109,313 (Shawnee)
Direct appeal (petition for review); aggravated intimidation of a witness
Randall L. Hodgkinson
[Reversed; Malone; September 9, 2016]
  • Insufficient evidence
  • Statute is unconstitutionally vague

January 29--Friday-a.m.

State v. Michael West, No. 111,124 (Riley)
Sentencing appeal (petition for review)
Christina M. Kerls
[Petition for review dismissed as improvidently granted]
  • Improper restitution order when plan was unworkable

Saturday, December 05, 2015

No concern for welfare supporting welfare check

Rick Kittel won in State v. Canfield, No. 112,610 (Kan. App. Nov. 13, 2015)(unpublished), obtaining reversal of a Shawnee County drug conviction. Police had received a call from a caller who claimed he was the father of Ms. Canfield's children expressing concerns about the children. Police went to the house and pounded on the door until Terrance Jackson came to the door and told police that Ms. Canfield was not there. From the doorway, the officer could see two children, but no contraband in plain view. The children appeared clean and unharmed. The officer arrested Jackson and another officer entered the home. Upon entry, officers found Ms. Canfield sitting on a bed and arrested her on an outstanding warrant and, during a search incident to arrest, found drugs.

The district court had denied the motion to suppress holding that the officers were permitted to make a warrantless entry for a "welfare check" of the children. The COA disagreed:
When Jackson eventually reopened the door, Officer Cruse warned Jackson about obstructing his efforts to execute the arrest warrant on Canfield. He said nothing to Jackson about harboring children in a dangerous environment. But he was able to see behind Jackson the two children standing in the hallway. The children appeared to be clean, and there was no contraband in plain view. The home appeared to be clean and well taken care of. There was no indication the children were in immediate danger.

Officer Cruse did not speak to the children. He did not ask Jackson about the children. He did not inquire who the children were, where their parents were, who was looking after them, or whether there had been any drugs consumed in their presence. The only suspicion he had was that if the children were there, Canfield also may be there. At that point Officer Cruse entered the residence, not for the purpose of addressing the needs of the children but to arrest their mother. He walked right past the children and into the room where Canfield sat on the bed.

There is no testimony that either officer did anything whatsoever to look after the well-being of the children during the entire time they were at Canfield's home. The generalized concern expressed in the call to the police dispatcher was not borne out by any observations by the police officers when they arrived at the Canfield home. We find no evidence in the record which would lead a prudent and reasonable officer to see the need to enter Canfield's home to protect the children. Thus, we conclude the district court erred in finding that Officer Cruse was justified in entering Canfield's home to conduct a welfare check of the children.
As a result, the COA reversed the drug conviction.

[Update: the state did not file a PR and the mandate issued on December 28, 2015.]