Saturday, August 27, 2016

October 2016 KSC docket

Here are the criminal cases on the KSC docket for October 24-27, 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 and archived (here) if you would like to watch any of these arguments.

October 24--Monday--a.m.

State v. Kristofer Wright, No. 112,635 (Sedgwick)
Direct appeal; premeditated first-degree murder
Michael P. Whalen
[Affirmed; Beier; February 16, 2018]
  • Denial of right to be present
  • Ineffective assistance of counsel on motion to dismiss
  • Denial of statutory speedy trial
  • Improper instruction on inference of premeditation
  • Prosecutorial misconduct
  • Improper instructions on "intentional"

State v. Zachary Eisenhour, Sr., No. 111,478 (Stafford)
Probation revocation appeal (petition for review)
Patrick H. Dunn
[Dismissed as improvidently granted; October 28, 2016]
  • Lack of jurisdiction to revoke expired probation
  • Illegal sentence under double rule

October 25--Tuesday--a.m.

State v. Dominic Parry, No. 113,130 (Clay)
State appeal (petition for review)
Phylemon C. Yau
[Affirmed; Biles; March 24, 2017]
  • District court properly granted motion to suppress evidence (Fourth Amendment)
State v. Robert Sasser, No. 108,149 (Johnson)
Direct appeal (petition for review); burglary/criminal threat
Korey A. Kaul
[Affirmed; per curiam; March 21, 2017]
  • Insufficient evidence
  • Improper testimony from victim regarding damage to property
State v. Cameron Howard, No. 110,439 (Johnson)
Direct appeal (petition for review); criminal possession of firearm
Craig M. Divine
[Affirmed; per curiam; March 20, 2017]
  • Completed Missouri SIS probation is not a prior conviction
  • Failure to grant motion to suppress evidence (Fourth Amendment)
  • Improper exclusion of defense evidence

October 26--Wednesday--a.m.

State v. Jason Robinson, No. 110,040 (Wyandotte)
Direct appeal (petition for review); aggravated burglary/aggravated battery
Randall L. Hodgkinson
[Affirmed; Stegall; August 11, 2017]
  • Violation of statutory speedy trial
  • Insufficient evidence of burglary
  • Aggravated battery statute is unconstitutionally vague
  • Improper instruction on bodily harm
  • Improper admission of prior bad act evidence
  • Failure to give limiting instruction
  • Denial of right to be present

October 27--Thursday--a.m.

Terry McIntyre v. State, No. 111,580 (Douglas)
K.S.A. 60-1507 appeal (petition for review)
Janine Cox (brief), Randall L. Hodgkinson (argue)
[Reversed/Remanded; Buser; September 1, 2017]
  • Whether retained counsel must be effective in K.S.A. 60-1507 hearing
State v. Phillip Cheatham, No. 113,799 (Shawnee)
Motion to withdraw plea
Meryl Carver-Allmond
[Affirmed; May 26, 2017; Luckert]
  • Failure to allow withdrawal of no contest plea

Saturday, August 20, 2016

Lapse of time not necessarily fatal to out-of-time appeal

Michelle A. Davis won in State v. Smith, No. 110,061 (Kan. August 5, 2016), obtaining remand to the district court for additional findings on Mr. Smith's motion to file an out-of-time appeal. Mr. Smith was convicted in 1993, when he was sixteen years old, after pleading no contest to several charges. The district court sentenced Mr. Smith to several consecutive life prison sentences.  Mr. Smith said he told his attorney to file an appeal, but that his attorney said to wait until after a 120-day call back (a potential modification process available at that time). But after the modification was denied, defense counsel never filed a notice of appeal. Approximately twenty years later, Mr. Smith filed a pro se notice of appeal and motion for out-of-time appeal. On a first remand to the district court, the only witness was Mr. Smith, who testified that he directed his attorney to filed an appeal, which he never did. Trial defense counsel passed away in 2009. On the first remand, the district court found that Mr. Smith waived his right to appeal based on the passage of time. Analyzing the third Ortiz exception, the KSC disagreed:

But requiring a defendant to establish the timeliness of his or her attempt to invoke the third Ortiz exception adds a step to the proper analysis set forth in [State v. Patton, 287 Kan. 200, 195 P.3d 753 (2008], to-wit: (1) Whether the defendant told his or her counsel to appeal, but the attorney failed to file or perfect the appeal; and, (2) if so, the defendant will enjoy a presumption of prejudice but must show that he or she would have timely appealed, but for counsel's failure. 

Patton discussed the "let the matter rest" concept, but as a factor in the Flores-Ortega two-prong performance and prejudice analysis. The court found that Patton had not "let the matter rest," based on evidence in the record that showed Patton desired to pursue an appeal and had been attempting to do so, but for his counsel's nonperformance. In other words, as in Patton, Smith's dilatory conduct might be relevant to the credibility of his claim that he told his attorney to appeal or his claim that he would have proceeded with an appeal if his attorney had not failed him. But the lapse of time between Smith telling his attorney to appeal and Smith's attempt to use the third Ortiz exception to file an out-of-time appeal, standing alone, was not a threshold bar to the untimely appeal as a matter of law.

Because the district court had never made any real Oritz findings, the KSC remanded for a new hearing on whether Mr. Smith told his attorney to file an appeal. 

[Update: after remand, the district court found that Mr. Smith did not meet the third Ortiz exception. In State v. Smith, No. 116,968 (Kan. August 17, 2018), the KSC reversed and remanded for a new hearing before a different judge because the district court considered improper evidence.]

[Further update: after the second remand, the KSC affirmed the finding of the district court that Mr. Smith did not meet the third Ortiz exception. State v. Smith, No. 121,949 (Kan. March 12, 2021).]

Saturday, August 13, 2016

Must know about a child to disregard substantial risk of injury to child

 Christina M. Kerls won in State v. Herndon, No. 112,479 (Kan. App. July 15, 2016), reversing a Neosho County aggravated endangerment of a child conviction. Mr. Herndon contended that he could not have acted recklessly with regard to a child because there was no evidence that he knew a child was in the back of a truck into which he was alleged to have discharged a firearm. The COA acknowledged the deferential standard of review, but agreed after review of the facts in the record:

It suffices to say that we simply find a dearth of evidence to support the notion that Herndon was aware of the child's presence in the truck. It is hard to imagine how Herndon consciously disregarded the risk to a child he had no reason to think was there.

 Further, under the standard for recklessness the risk to be avoided must be substantial. There is always the risk that shooting a .22 rifle at a moving vehicle could cause grave injury or death to an occupant of the vehicle. But under this statute there must be a substantial risk, which the defendant disregarded, that the vehicle had a child occupant. The defendant's actual knowledge of a child's presence would, of course, be sufficient to show a substantial risk. But circumstances establishing the strong likelihood of a child's presence would also satisfy the "substantial risk" component of the statute, so long as a child was, in fact, endangered.

Shooting a firearm in the direction of a child daycare center at 10 a.m. on a school day carries with it the substantial risk of injury to a child. But the same cannot be said if the shot is fired at a daycare center building at midnight. The chance of a child being 11 present at that hour is remote at best. In any event, the likelihood of a child being injured by a shot fired at midnight certainly would not be substantial so as to satisfy this element of the crime.

Herndon's conduct was certainly unjustifiable and a gross deviation from any reasonable standard of care. But there is no evidence that it was done in conscious disregard of a substantial risk of injury to a child occupying the truck.

Because there was insufficient evidence to support the charge, the COA reversed the conviction and sentence for aggravated endangerment of a child. The COA affirmed several remaining convictions.

[Update: the KSC denied the state's PR and the mandate issued on October 23, 2017.]


Possession of different drugs without a tax stamp is one offense

Lydia Krebs and Peter Maharry won in State v. Pribble, No. 108,915 (Kan. July 15, 2016), reversing a Sedgwick County no tax stamp conviction. The KSC considered whether a conviction for possession of marijuana with no tax stamp and a conviction for possession of methamphetamine with no tax stamp was the "same offense" for multiplicity purposes. After applying its precedent, the KSC concuded there was only one offense:

Viewing all of the statutory provisions together suggests that the legislature intended to impose a tax on the marijuana or controlled substances possessed by drug dealers and to make it a crime for those drug dealers to fail to evidence the payment of that drug tax with the appropriate stamps. Consequently, the clear purpose of K.S.A. 2010 Supp. 79-5201(c)'s definition of "dealer" is to differentiate between drug dealers and personal-use possessors of drugs, and, thereby, clarify who is a taxpayer under the act that can be subject to the criminal sanction of K.S.A. 79-5208. In that regard, the legislature's designation of more grams to be considered a marijuana dealer than that required to be a methamphetamine dealer has a basis in fact unrelated to establishing a unit of prosecution. Accordingly, we reject the proposition that K.S.A. 2010 Supp. 79- 5201(c) clearly indicates a legislative intent to make the possession of two separate drugs two separate units of prosecution under K.S.A. 79-5208.

Therefore, under the facts presented in this record, we hold that Pribble's possession of both marijuana and methamphetamine, at the same time and the same location, without the appropriate drug tax stamps affixed, without any proof that the drugs were acquired at different times, constituted a single crime that should not have been charged in two counts.

As a result, the KSC reversed one count of no tax stamp.