Friday, December 30, 2016

Due Process Speedy Trial right applies in commitment cases

Michael P. Whalen won in In re Ellison, No. 112,256 (Kan. December 9, 2016), affirming Judge Burgess' dismissal of involuntary commitment proceedings based on excessive pretrial delay resulting in a Due Process violation. The state was proceeding against Mr. Ellison pursuant to the Kansas Sexually Violent Predator Act (KSVPA). He had waited (in custody) for more than four years pending trial. After preforming a Barker v. Wingo analysis, Judge Burgess ordered that Mr. Ellison be released. The KSC agreed that using the Barker test was appropriate. Even though Barker involved a Sixth Amendment speedy trial claim, the KSC cited and followed cases that used it for a Due Process speedy trial claim as well. And the KSC held that the case-by-case approach in Barker was appropriate to evaluate delay in a KSVPA proceeding as well. The KSC went on to hold that the district court correctly applied Barker in this specific case:

As demonstrated by the Barker Court's strong sentiments about the prejudice arising from pretrial incarceration in criminal cases, pretrial incarceration in this civil commitment case weighs even more heavily in favor of our holding that the delay violated due process. For example, had Ellison been committed under the act immediately upon the State filing its petition, he would have received treatment and four annual examinations and four opportunities to petition for his release. These statutory opportunities were squandered while he sat in the Sedgwick County jail.

The KSC also noted that in a criminal case, a defendant is at least entitled to jail credit for pretrial incarceration. In a KSVPA proceeding, that time "is effectively lost" for any therapeutic purposes.  Although the KSC observed that there was no evidence of improper motive on the part of the state, it had the obligation to bring Mr. Ellison's case to trial and if failed to do so. 

Friday, December 09, 2016

January 2017 KSC Docket

Here are the criminal cases on the KSC docket for January 23- 26, 2017. 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.

January 23--Monday--a.m.

State v. Troy Robinson, No. 113,684 (Shawnee)
Direct appeal; Premeditated first-degree murder
Samuel D. Schirer
[Affirmed; Rosen; May 26, 2017]
  • Improper exclusion of victim dating contacts
  • Prosecutorial error
  • Limitation of voir dire
  • Inadequate sentencing notice

January 24--Tuesday--a.m.

State v. Ramiro Garcia, No. 112,502 (Johnson)
Direct appeal (petition for review); Identity theft 
Randall L. Hodgkinson
[Affirmed (after remand from SCOTUS); Beier; June 12, 2020]
  • Insufficient evidence of intent to defraud
  • Federal preemption
  • Failure to give unanimity instruction
State v. VanRoyen, No. 116,773 (Elk)
Direct appeal (petition for review); Aggravated indecent liberties
Michael P. Whalen
[Dismissed as improvidently granted January 25, 2017]
  • Preliminary hearing errors
  • Insufficient evidence

January 26--Thursday--a.m.

State v. Jeramy Zwickl, No. 113,362 (Reno)
State appeal (petition for review)
Charles A. O'Hara
[Reversed; Biles; May 5, 2017]
  • Application of good-faith exception to deficient search warrant affidavit
State v. Jose Delacruz, No. 116,640 (Reno)
Direct appeal (petition for review); direct contempt
Sam S. Kepfield
[Reversed; per curiam; March 2, 2018]
  • Violation of Fifth Amendment right against self-incrimination