Friday, December 21, 2018

Silence regarding postrelease at revocation can be legal modification

Clayton J. Perkins won in State v. Jones, No. 118,268 (Kan. App. November 30, 2018), vacating her postrelease supervision period in a Reno County failure to register prosecution. When Ms. Jones was originally sentenced, the district court imposed a 24-month postrelease supervision period and granted probation. A couple years later, the district court revoked Ms. Jones' probation. At the revocation hearing, the district court modified the previously imposed prison sentences to run concurrently instead of consecutively. The district court did not pronounce any postrelease supervision period at the revocation hearing. Notwithstanding that silence, the journal entry from probation revocation indicated that Ms. Jones had to serve 24 months on postrelease supervision. Ms. Jones moved to correct that provision, but the district court denied the motion.

On appeal, the state argued that the district court's silence at the revocation hearing regarding postrelease supervision should not be construed as a modification of the original postrelease supervision period. In particular the state cited K.S.A. 21-6804(e)(2)(C) that provides that "[f]ailure to pronounce the period of post release supervision shall not negate the existence of such period."  After reviewing several KSC cases related to the district court's power upon revocation (blogged about here and here), the COA held that other statutory provisions authorizing "any lesser sentence" upon revocation controlled:

Jones argues that the district court's silence on the period of postrelease supervision at her probation revocation hearing constituted a modification of the postrelease term. Based on McKnight, Sandoval, and Roth, we agree with Jones' claim. The district court modified Jones' sentence at the probation revocation hearing and sentenced her anew. That sentence did not include a period of postrelease supervision. Although the district court may not have intended to vacate Jones' postrelease supervision term upon revoking her probation, the court was authorized to do so and the new lawful sentence was effective when pronounced from the bench. Thus, the district court erred when it later included a 24-month postrelease supervision term in the journal entry. 

As a result, the COA vacated the 24-month post-release period and remanded with directions to file a corrected journal entry reflecting no post-release period.

[Update: the state did not file a PR and the mandate issued on January 7, 2019.]

Saturday, December 15, 2018

January-February 2019 KSC Docket

Here are the criminal cases on the KSC docket for January 28-February 1, 2019. 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 28--Monday--a.m.

State v. Stephen Gentry, No. 116,371 (Saline)
Direct appeal; First-degree murder
Peter Maharry
[Affirmed/Vacated; Rosen; September 20, 2019]
  • Failure to give voluntary manslaughter instruction
  • Failure to give lesser-included offense instructions
  • Denial of motion to continue
  • Improper assessment of restitution
State v. Macio Palacio, Jr., No. 116,899 (Saline)
Direct appeal; First-degree murder
Gerald E. Wells
[Affirmed; Rosen; June 7, 2019]
  • Failure to change venue
  • Improper admission of confession
State v. Steven Edwards, No. 117,305 (Sedgwick)
Sentencing appeal and motion to withdraw plea
Jennifer C. Roth
[Affirmed/vacated; Stegall; May 10, 2019]
  • Improper imposition of lifetime postrelease supervision
  • Dissatisfaction with counsel required withdrawal of plea
State v. Marquel Dean, No. 116,568 (Sedgwick)
Direct appeal; First-degree premeditated murder
Carl Maughan
[Affirmed; Stegall; October 25, 2019]
  • Juror misconduct
  • Failure to give informant cautionary instruction
  • Failure to grant new trial re: evidence of witness' plea deal
  • Insufficient evidence of premeditation
  • Improper admission of gang affiliation evidence

January 29--Tuesday--a.m.

State v. Erica Tatro, No. 118,237 (Saline)
State appeal (petition for review)
Joel Ensley
[Reversed/remanded; Luckert; July 26, 2019]
  • Whether attenuation doctrine applied to excuse Fourth Amendment violation
State v. Daniel Christian, No. 116,133 (Reno)
Direct appeal (petition for review); Possession
Randall L. Hodgkinson
  • Whether attenuation doctrine applied to excuse Fourth Amendment violation
State v. Lee Sanders, No. 118,640 (Shawnee)
State appeal (petition for review)
Reid T. Nelson
  • No reasonable suspicion to detain
  • Whether attenuation doctrine applied to excuse Fourth Amendment violation
  • Whether alternative bases for search (inevitable discovery/inventory) justified warrantless search

January 30--Wednesday--a.m.

State v. Grover James, 117,945 (Sedgwick)
Direct appeal; First-degree premeditated murder
Kai Tate Mann
[Affirmed; Beier; June 28, 2019]
  • Failure to give lesser-included offense instructions
  • Improper admission of autopsy photos
  • Prosecutorial error in closing argument
  • Denial of right to be present when granting continuances
State v. Rogelio Soto, Jr., No. 117,059 (Sedgwick)
Direct appeal (after remand); First-degree premeditated murder
Kevin J. Zolotor
  • Whether trial court could consider Brady challenge on appellate remand

January 31--Thursday--a.m.

State v. Alejandro Garcia-Garcia, No. 116,648 (Montgomery)
Direct appeal; Attempted capital murder
Clayton J. Perkins
[Affirmed/vacated; Biles; May 10, 2019]
  • Improper admission of other crimes evidence
  • Prosecutorial error in closing argument
  • Failure to give attempted kidnapping instruction as lesser
  • Improper assessment of BIDS fees
State v. Stephen Macomber, No. 113,869 (Shawnee)
Direct appeal (petition for review); Involuntary manslaughter
Jonathan B. Phelps
[Affirmed; Biles; May 17, 2019]
  • Self-defense immunity
  • Failure to instruct on self-defense presumption

February 1--Friday--a.m.

Reginald Stewart v. State, No. 115,149 (Sedgwick)
K.S.A. 60-1507 appeal
Michael P. Whalen
[Affirmed; Johnson; July 12, 2019]
  • Failure to appoint counsel for consideration of state's response to motion
  • Failure to call eyewitness ID expert was ineffective assistance of counsel
State v. Jeffery Redding, No. 115,037 (Rice)
Sentencing appeal
Michael P. Whalen
[Affirmed; July 12, 2019]
  • Failure to appoint counsel for motion to correct illegal sentence
  • Failure to consider departure motion from hard-25 sentence
Kedrin Littlejohn v. State, No. 115,904 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Michael P. Whalen
[Remanded to COA; Johnson; August 23, 2019]
  • Whether exceptional circumstances justified second or successive petition
Austin N. Jones, No. 114,601 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Kristen B. Patty
[Dismissed as improvidently granted July 12, 2019]
  • Failure to appoint counsel for hearing
  • Ineffective assistance of trial counsel

Wednesday, December 12, 2018

No need to search wallet for property safekeeping

Whitney T. Kauffeld won in State v Evans, No. 119,458 (Kan. November 21, 2018), affirming Judge Sexton's suppression order in a Dickinson County drug prosecution.  An officer responded to a serious one-car accident on I-70. Ms. Evans, the driver, was in pain and distraught, but identified herself to officers. Emergency personnel extracted Ms. Evans from the car and took her away by ambulance. Prior to having the car towed, an officer observed a purse and a wallet in the car. The officer retrieved the wallet and purse and proceeded to look through the purse. The officer testified that he was looking for a drivers' license, not investigating a crime. The officer testified that he needed information to complete the paperwork for the accident. When he did not find a drivers' license, he proceeded to open the wallet and discovered a baggie containing what later was determined to be methamphetamine. 

The district court held that the officer could seize the purse and wallet for safeguarding of property, but held that further intrusion into the containers without a warrant or other exception violated the Fourth Amendment. 

The KSC first clarified that there was no probable cause to search the car--the state's only asserted exception was as an inventory search. Then reviewing inventory search cases, the KSC agreed with the district court's legal conclusions. The KSC particularly noted the failure to prove any standardized procedures in such circumstances:

Likewise, here, we have no evidence establishing the standard procedures of either the Abilene Police Department or the Dickinson County Sheriff's Office. {The officer] testified "there was a wrecker coming for [Evans' car], and it's my practice, when there's something of possible value in the car, I like to collect it for safekeeping, so it doesn't get lost, or stolen from the wrecker yard." But an individual officer's practice does not meet the standard discussed in [Cady v. Dombrowski 413 U.S. 433 (1973)]. He also did not speak to any policy about searching closed purses and zipped wallets once seized—a standard the ]Florida v. Wells, 495 U.S. 1 (1990)] decision makes clear must exist for the search to be constitutional. In fact, the State has never argued that the search complies with the inventory search exception to the warrant requirement. Yet, as Dombrowski, [South Dakota v. Opperman, 428 U.S. 364 (1976)], Wells, and other cases make clear, the caretaking role of law enforcement does not itself constitute an exception to the warrant requirement. Without evidence of a standardized policy allowing the search, we hold the authority of Dombrowski, Opperman, and other related cases does not support the State's contention that the search of Evans' purse and wallet fits a well-delineated exception to the warrant requirement. 

The KSC also rejected the state's claim that Kansas statutes governing accident reports justified the warrantless search in this case. In particular, the KSC held that there was no exigency in identifying Ms. Evans because she had provided her name to the officers before being removed by emergency personnel. And the KSC held that a driver can have a reasonable amount of time to produce a drivers' license upon demand by an officer. Because the officers intruded upon Ms. Evans' wallet without a warrant and without proving an exception to the warrant requirement, the KSC affirmed the suppression order.

Wednesday, November 07, 2018

Judge McAnany to retire

Here is a court press release announcing that Judge Patrick McAnany will retire in early 2019. He has served on the Kansas Court of Appeals since 2004 and before that as a District Court Judge (including two terms as Chief Judge) in the Tenth Judicial District in Johnson County since 2015. 

Pursuant to Kansas statute, the Governor has 60 days from the date of the vacancy to appoint a new Court of Appeals Judge, subject to confirmation by the Kansas Senate.

Saturday, October 27, 2018

December 2018 KSC Docket

Here are the criminal cases on the KSC docket for December 10-14, 2018. 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.

December 10--Monday--a.m.

State v. Scot Bacon, No. 114,951 (Sedgwick)
Direct appeal (petition for review); Commercial sexual exploitation
Cooper G. Overstreet
[Affirmed; Stegall; June 28, 2019]
  • Conflict of interest with appointed attorney
State v. Anthony Smith, No. 113,828 (Sedgwick)
Sentencing appeal (petition for review)
Angela Michelle Davidson
[Affirmed; per curiam; May 31, 2019]
  • Failure to award jail-time credit
Terral Breedlove v. State, No. 115,401 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Kristen B. Patty
[Affirmed/Reversed; Johnson; July 12, 2019]
  • Improper adoption of state's response as finding of fact and conclusions of law
  • Denial of appointment of counsel for hearing
  • Ineffective assistance of counsel
  • Improper imposition of filing fee

December 11--Tuesday--a.m.

State v. Dewayne Hambright, No. 115,259 (Sedgwick)
Sentencing appeal (petition for review)
Clayton J. Perkins
  • Improper extension of probation period
State v. Roy Samuel, No. 116,423 (Wyandotte)
Sentencing appeal
Peter Maharry
[Affirmed; Biles; January 11, 2019]
  • Life sentence for juvenile is Cruel and Unusual Punishment
State v. Elgin Robinson, No. 116,650 (Sedgwick)
Post-conviction motion appeal
Kristen B. Patty
[Affirmed; Rosen; January 11, 2019]
  • Improper denial of pro se motion to compel discovery

December 12--Wednesday--a.m.

State v. Jack Lapointe, No. 113,580 (Johnson)
DNA testing appeal
Richard Ney
[Affirmed/Sustained; Biles; February 15, 2019]
  • Improper denial new trial upon DNA testing
  • Whether movant was entitled to DNA testing
State v. Fran Andrade-Reyes, No. 115,044 (Johnson)
Direct appeal (petition for review); Possession
Randall L. Hodgkinson
  • Fourth Amendment violation (not a voluntary encounter and no reasonable suspicion)

December 13--Thursday--a.m.

State v. Howard Barrett, No. 113,767 (Riley)
Direct appeal (petition for review); Second-degree murder
Michelle A. Davis
  • Failure to give lesser-included offense instruction
State v. James Qualls, No. 115,648 (Shawnee)
Direct appeal; First-degree premeditated murder
Kasper C. Schirer
  • Failure to give self-defense instruction

December 14--Friday--a.m.

State v. Curtis Ayers, No. 117,654
Sentencing appeal 
Meryl Carver-Allmond
[Affirmed/Vacated; Beier; January 11, 2019]
  • BIDS fee
  • Improper imposition of consecutive grid sentences to off-grid sentence
State v. Terrance Sims, No. 114,959 (Wyandotte)
Direct appeal (petition for review); Failure to register
Ryan Eddinger
[Remanded; Luckert; March 8, 2019]
  • KORA's fee requirement is unconstitutional

Saturday, October 20, 2018

Discharge from DOC prevents further modification of postrelease

Ryan J. Eddinger won in State v. Lehman, No. 112,500 (Kan. September 28, 2018), vacating a modified sentence in a Sedgwick County aggravated sexual battery prosecution. Mr. Lehman had pleaded guilty to the offense and the district court originally imposed a 31-month prison sentence with 24 months postrelease. About three years later, KDOC notified the prosecutor that it believed Mr. Lehman's sentence was illegal because K.S.A. 22-3737(d)(1)(G) requires a person convicted of this offense to have lifetime postrelease. A year later, the state filed a motion to correct an illegal sentence.

While the motion was pending, KDOC discharged Mr. Lehman from postrelease. At the motion hearing, the district court held that, despite the discharge order, it had jurisdiction and modified the sentence to reflect lifetime postrelease.

The KSC first rejected the defense assertion that the state invited the error by requesting 24-months postrelease as part of the plea bargain at the original sentencing, reiterating that parties cannot agree to or stipulate to an illegal sentence. But, after reviewing decisions from other jurisdiction on the question of whether a defendant has a legitimate expectation of finality in a completed sentence, the KSC held that the modification in this case was precluded by the Fifth Amendment and Section 10 of the Kansas Constitution Bill of Rights:

But more importantly, neither the State nor the panel explain the status of a person who has completed the original sentence imposed by the sentencing judge without any other judge entering any other order purporting to correct, modify, stay, or suspend that original sentence. To be clear, we are not faced with a circumstance in which a district court purported to stay or suspend Lehman's discharge from custody. Therefore, the only legal status that comports with our statutes and caselaw is that the original sentence had expired and Lehman had been discharged from custody, as a matter of law, the day after he completed his court-ordered judgment of sentence.

Otherwise, if Lehman is deemed to have remained on postrelease supervision after his sentence expired but before any other court order, "he [would] still be under a sentence." That would mean that the prosecutor in this case, by simply filing a motion to correct an illegal sentence, effectively modified the district court's original sentencing judgment to impose a harsher sentence. Although the law invests prosecutors with a great deal of authority and discretion, it does not authorize a member of the executive branch to change a judge's order. See State v. Simmons, 307 Kan. 38, 42, 405 P.3d 1190 (2017) (executive branch cannot modify a sentence; executive branch is not a court of criminal jurisdiction).

Consequently, when Lehman completed his original sentence—even if illegal— without a court order that superseded the judgment of the sentencing judge, he was no longer subject to the jurisdiction of the criminal justice system. Any additional sentence imposed on him for the same offense after completing the original sentence constitutes a multiple punishment proscribed by the double jeopardy provisions of our federal and state constitutions. 

Moreover, the argument that the notice of the filing of the motion to correct an illegal sentence negated any expectation of finality Lehman may have had upon completing his original sentence is similarly unavailing. A person who has appeared before a judge and received a sentence in open court can legitimately expect that court order to remain in effect until told otherwise by a district court judge. See K.S.A. 21- 4704(e)(2) ("In presumptive imprisonment cases, the sentencing court shall pronounce the complete sentence which shall include . . . the period of postrelease supervision."). Here, Lehman's original sentence, including postrelease supervision period, was not countermanded by a court of law before it was completely served and terminated; Lehman is entitled to be discharged from custody. 

As a result, the KSC ordered Mr. Lehman discharged from further liability in the case.


Saturday, October 13, 2018

No evidence of planned search to support inevitable discovery

Rick Kittel won in State v. Thayer, No. 117,900 (Kan. App. September 21, 2018)(unpublished) reversing Reno County convictions of possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia.

Mr. Thayer was driving a car that was stopped by police because he was not wearing a seatbelt. The police officer noticed an odor of alcohol coming from Thayer’s car. The officer could see several bladed weapons in the back seat of the car. Thayer acted “twitchy” and seemed to have difficulty focusing and communicating. He could not produce a driver’s license or proof of insurance. Mr. Thayer was asked to get out of the car to perform field sobriety tests. Once out of the car, the officer asked Mr. Thayer if there were any weapons on his person. Mr. Thayer said he had a knife on his belt. The officer conducted a pat-down and found and removed thirteen knives from around his waistband. Mr. Thayer was asked if he had other weapons on his person. He responded that he did not think there were other weapons on his person. The officer continued the pat-down and felt an object in Mr. Thayer’s front pocket. At this point there was a dispute as to what occurred. The officer claimed that he asked Mr. Thayer for permission to search the pocket, which was granted. Mr. Thayer denied that he gave the officer consent to search his pocket. The officer removed the object from Mr. Thayer’s pocket. It was a box that contained a pipe and marijuana. Methamphetamine was also found in the pocket. Thayer was charged with offenses set forth above.

Prior to trial, Mr. Thayer filed a motion to suppress challenging the search of his pocket, claiming that he had not given consent. There was a dash cam video of the interaction between Mr. Thayer and the officer, but for reasons the state could not explain, the audio function during some portions of the video did not work.

The district court found that, although the state had not met its burden to show consent, the drugs on Mr. Thayer’s person would have been inevitably discovered during a lawful search for failure to provide proof of liability insurance. Applying the inevitable discovery rule, the district court denied suppression of evidence. 

A majority of the COA reversed finding that the district court had improperly applied the inevitable discovery rule. After examining the record, the COA found no evidence to show that the officer intended to arrest Mr. Thayer for failure to produce proof of insurance prior to the search of Mr. Thayer’s pocket and the discovery of the drug contraband. Without such evidence there was no showing that the evidence would have inevitably been discovered. The convictions were reversed and the case remanded to the district court for further proceedings.

[Update: the state filed a PR on October 16, 2018.]

[Further update: the KSC denied the state's PR April 29, 2019 and the appellate mandate issued on May 6, 2019.]

Saturday, September 22, 2018

Failure to find exception to intermediate sanctions scheme requires remand

Caroline M. Zuschek won in State v. Clapp, No. 112,842 (Kan. September 7, 2018), obtaining remand in a Reno County drug and weapons prosecution. The district court revoked Mr. Clapp's probation due to technical violations, but did not impose an intermediate sanction. The KSC held that failure to make explicit findings regarding possible bypass of the mandatory intermediate sanction scheme required remand:

In revoking Clapp's probation and imposing his underlying sentence, the district court did not mention K.S.A. 2014 Supp. 22-3716(c)(9), nor did it make any explicit findings regarding how imposing an intermediate sanction would jeopardize the safety of the public or be contrary to Clapp's welfare. Any suggestion that the district court was implicitly relying on the bypass provision of subsection (c)(9) when revoking Clapp's probation at the hearing is belied by the journal entry. 

The KSC also rejected the state's claim that remand was futile because the district court would simply make the necessary findings. The KSC held that the duty to make the findings is mandatory and also would facilitate appellate review, even if the state was right.

Friday, September 21, 2018

Post release supervision period not illegal if lesser sentence imposed at revocation

Samuel D. Schirer and Adam D. Stolte won in State v. Roth, No. 113,753 (Kan. August 31, 2018), vacating a "corrected" postrelease supervision period in a Finney County aggravated sexual battery prosecution. In Mr. Roth's case, the district court originally imposed consecutive prison sentences totaling 102 months and imposed a 24-month postrelease supervision period. The district court then granted probation. Mr. Roth's probation was subsequently revoked, but upon revocation, the district court ran the prison sentences concurrently and again pronounced a postrelease supervision period of 24 months. Several years later, the state filed a motion to correct illegal sentence, seeking correction of the postrelease supervision period to reflect lifetime post-release, arguing that Kansas statutes mandated such a postrelease period for a conviction for aggravated sexual battery.

The KSC contrasted Mr. Roth's case with another case decided the same day in State v. Sandoval. The KSC held that, where a district court actually imposes a lesser sentence upon probation revocation, as it is authorized to do under K.S.A. 22-3716(b), the district court can impose any lesser sentence, including a lesser postrelease supervision period:

In today's decision in Sandoval, this court holds that, under the "any lesser sentence" language in K.S.A. 22-3716(b), a district judge pronouncing sentence after probation revocation may choose to sentence anew, even if some component of the original sentence was illegal because it failed to match a mandatory statutory minimum. If a new sentence is pronounced from the bench, the original illegality no longer exists, and the new sentence is not subject to challenge or correction under K.S.A. 22-3504(1). If the judge instead requires the defendant to serve the original sentence, the opposite is true. Any original illegality continues to exist and is subject to challenge or correction under K.S.A. 22-3504(1).

In Sandoval, the judge who revoked the defendant's probation explicitly declined to modify the original sentence and required the defendant to serve it. This left an illegal postrelease term in place and in effect, and it was ripe for later correction. 

Here, on the other hand, the judge who revoked Roth's probation chose to give Roth a "lesser" sentence, as expressly permitted by K.S.A. 22-3716(b). Although the postrelease term pronounced after revocation mimicked the original term, Roth's imprisonment terms were made concurrent rather than consecutive. He was thus sentenced anew after revocation; whatever may have been illegal about the postrelease term when originally pronounced no longer existed and was not subject to correction on the State's later motion under K.S.A. 22-3504(1). 

As a result, the KSC remanded for re-imposition of the original 24-month postrelease supervision in Mr. Roth's case, but affirmed the "corrected" lifetime postrelease supervision period in Mr. Sandoval's case. 

Saturday, September 15, 2018

Limited consent supports district court suppression order

Donald E. Anderson, II. won in State v. Dannebohm, No. 116,981 (Kan. App. August 24, 2028), affirming Judge Svaty's suppression order in a Barton County drug prosection.  The appeal was on remand from the KSC after the COA had initially reversed finding a lack of standing. But the KSC reversed the COA holding that Mr. Dannebohm was a social guest and, therefore, had standing (blogged about here). On the merits, the state's primary argument was the apartment's owner had consented to the search. On remand, the COA held that the state failed to prove consent:

Tracy testified that the officers asked her if they could search her apartment for the express purpose of finding Dannebohm, and she consented to this search. Tracy stated, however, that she never gave consent for the officers to use a K-9 to search for drugs. [An officer] testified that Tracy stated the officers would find drugs in the apartment, and this indicated to the officer that Tracy was giving consent to such a search. Tracy contests that she ever made such a statement. Nevertheless, . . . the K-9 officer, testified that Tracy had not given consent to the K-9 sniff of her apartment. There are sufficient facts to support the district court's conclusion that the consent given was to search for Dannebohm, the person, and not for drugs.

The only evidence in the record on appeal reflected that the search warrant obtained by officers was based on the illegal K-9 search. As a result, the COA held that the state had failed to provide a record on appeals sufficient to show that Judge Svaty's suppression order was erroneous and affirmed.

[Update: the state did not file a PR and the mandate issued on October 1, 2018.]

Friday, September 14, 2018

Can't retry a person if state did not provide sufficient evidence at a first trial

Rick Kittel won in State v. Lacy, No. 117,884 (Kan. App. August 24, 2018), obtaining reversal of a Sedgwick County aggravated indecent liberties with a child conviction. Similar to a recent KSC case (blogged about here), the state charged Mr. Lacy with soliciting a child to touch the person of another, but provided evidence that he touched a child with improper intent. On appeal, Mr. Lacy argued that the state failed to prove the crime it charged. The state attempted to argue that this was merely a jury instruction error. The COA held that the jury instructions should follow the charging document and that the state charged the solicitation form of the offense in this case. Following the recent KSC precedent, the COA held that the state had failed to provide evidence of the crime it charged.

The state also argued that, even if the conviction should be reversed, the proper remedy would be to remand for a new trial. The COA rejected this claim as well:

It's clear, then, that the evidence would never support the soliciting charge the State brought against Lacy. Presumably the State hopes that once the case returns to the district court, that court will allow the State to amend its charge to one the facts would support.

But the time for amending a charge is before the jury reaches a verdict, not after conviction, appeal, and remand to the trial court. A Kansas statute, K.S.A. 22-3201(e), puts that limit on the State's charging authority: "The court may permit a complaint or information to be amended at any time before verdict . . . ." (Emphasis added.) This provision may be the reason the State's brief didn't explicitly mention a plan to amend the charging document if we sent the case back for a new trial—the time for amending the complaint ended long ago. 

. . . .

 Here, as we've explained, the State's evidence never supported the charge made in the complaint. It still won't support that charge if we send it back for retrial. In any case, when the evidence at trial doesn't support the crime charged in the State's complaint, the proper remedy is to reverse the conviction without sending the case back for a new trial. 

As a result, the COA reversed the conviction and vacated the imposed sentence.

[Update: the state filed a motion for rehearing on September 10, 2018.]

[Further update: the state field a petition for review on September 24, 2018.]

[Further update: the COA denied the state's motion for rehearing on September 27, 2018.]

[Further update: the KSC granted Mr. Lacy's motion to expedite and denied the state's petition for review on February 28, 2019. The appellate mandate issued on March 7, 2019.]

District court can only consider properly admitted evidence to deny departure motion

Clayton J. Perkins won in State v. Atkisson, No. 115,468 (Kan. August 24, 2018), obtaining a remand for resentencing in a Anderson Count rape prosecution. Mr. Atkisson had pleaded guilty in exchange for a recommendation for a departure from the grid. The district court rejected the joint recommendation and imposed a hard-25 sentence, which was reversed on a first appeal pursuant to State v. Jolly (blogged about here). At resentencing, the district court again rejected the downward departure from the grid, citing other incidents it gleaned from the probable cause affidavit and finding that mitigating circumstances did not justify a departure. The KSC acknowledged that a district court judge must consider all of the facts of the case, even if it cannot weigh aggravating factors against mitigating factors. As such the KSC held that the district court's consideration of the age difference, multiple instances of abuse in multiple counties, and abuse of a position of trust were all properly considered in determining sentence. But the KSC went on to hold that the district court abused its discretion by making those determinations based on a probable cause affidavit and other unsworn statements that had not been stipulated as the factual basis in the case:

The State did not try to have the probable cause affidavit admitted into evidence for sentencing purposes.  The district court also referenced Atkisson's position of trust in the victim's life, but that notion appears to be supported only by the father's unsworn statement at the sentencing hearing. And the State did not call the victim's father as a witness under oath at the sentencing hearing, subject to cross-examination, to establish how Atkisson committed the offense. 

Because the district court relied on facts that were not properly part of the record, the KSC held that it abused its discretion and remanded for resentencing, including reconsideration of the departure motion.

Saturday, September 08, 2018

October 2018 KSC Docket

Here are the criminal cases on the KSC docket for October 22-26, 2018.  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 23--Tuesday--a.m.

State v. Yamuna Rizal, No. 115,036 (Johnson)
Direct appeal (petition for review); Possession with intent to distribute
Jonathan L. Laurans
[Reargued after supplemental briefing]
[Affirmed; Stegall; July 19, 2019]
  • Insufficient evidence of knowledge of substance
In re Bowman, No. 119,270 (Original Action)
Writ of Habeas Corpus
Mark J. Dinkel
  • Double jeopardy bar to second trial after mistrial
State v. Wyatt Brown, No. 113,751 (Brown)
Sentencing appeal (petition for review)
Kai Tate Mann
  • Improper increase in sentence after successful appeal

October 24--Wednesday--a.m.

State v. Grant Wilson, No. 114,567 (Reno)
Sentencing appeal (petition for review)
Caroline M. Zuschek
  • Prosecutorial error at motion to correct illegal sentence (misstatements of fact)
State v. Jose Gonzalez-Sandoval, No. 114,894 (Lyon)
Direct appeal (petition for review); Agg indecent liberties with a child
Christopher S. O'Hara
[Affirmed; Luckert; December 21, 2018]
  • Batson violation

October 25--Thursday--a.m.

State v. David Lundberg, No. 114,897 (Sedgwick)
State v. Michael Elzufon, No. 114,898 (Sedgwick)
State appeal (petition for review); 
David L. Miller (Lundberg); Kurt P. Kerns (Elzufon)
  • Lack of territorial jurisdiction over securities fraud offenses
State v. Ivan Alvarez, No. 115,993 (Saline)
Sentencing appeal (petition for review)
Samuel D. Schirer
[Aff'd/Rev'd; Rosen; January 18, 2019]
  • Improper assessment of court costs for preparing exhibits for trial
State v. Daquantrius Johnson, No. 113,228 (Sedgwick)
Direct appeal (petition for review); Criminal possession of firearm/agg assault
Samuel D. Schirer
  • Judge sleeping in trial is structural error
  • Improper limited jury trial waiver
October 26--Friday--a.m.

State v. Marcus Guein, Jr., No. 115,426 (Johnson)
Direct appeal (petition for review); Distribution
Thomas J. Bath
  • Improper admission of statements pre- and post-Miranda

Saturday, September 01, 2018

State is required to prove crime it charged

 Michelle A Davis won in State v. Fitzgerald, No. 112,492 (Kan. August 10, 2018), obtaining reversal of a Cowley County aggravated criminal sodomy conviction. The state charged that Mr. Fitzgerald to cause a child "to engage in oral copulation with another person." But the parties all proceeded as if Mr. Fitzgerald had been charged with engaging in sodomy with the child himself. And all of the evidence presented evinced the latter and no evidence showed the former. The COA had reversed the conviction in 2015 and the state sought review in the KSC. At the KSC, the state tried to recast this as a defective complaint issue. The KSC rejected this redirection and held that the state had failed to provide sufficient evidence of the crime it charged. The KSC followed its precedents in State v. Laborde (blogged about here) and State v. Dickson to held that the state has to prove the type of crime it charged:

Today the statute we referenced in Laborde remains in effect, and the maxim it recites remains true, despite the changes wrought by Dunn since Laborde was decided. The Kansas Constitution may endow district courts with subject matter jurisdiction over criminal cases generally. But the charging document in any specific case still sets the outer limits of the conviction or convictions that can result. See State v. Ward, 307 Kan. 245, 259-60, 408 P.3d 954 (2018) (State failed to prove 10 crimes charged, regardless of whether it may have proved another crime; conviction reversed). 

Using this test, the KSC easily concluded that reversal was required:

In this case, Fitzgerald was charged with causing [the child] "to engage in oral copulation with another person" under K.S.A. 2017 Supp. 21-5504(b)(2).

This statute "demands a specific kind of proof from the State." That proof is not the same as the entirely sufficient evidence the State marshaled and presented of Fitzgerald causing [the child] to engage in sodomy with him. See Dickson, 275 Kan. at 694-95. Under these circumstances, we are compelled to reverse Fitzgerald's conviction as unsupported by sufficient evidence of the crime the State charged. The error of insufficiency is not amenable to review for harmlessness.

Friday, August 31, 2018

Independent judicial investigation related to improper stereotyping requires new hearing

Richard Ney won in State v. Smith, No. 116,968 (Kan. August 17, 2018), obtaining a second remand hearing to consider whether Mr. Smith was entitled to an out-of-time appeal. The KSC had previously remanded the case so that the district court could apply the correct test (blogged about here). On remand, the district court considered irrelevant information from outside the record in determining Mr. Smith's testimony was not credibile (which was dispositive of the request for out-of-time appeal). 

The KSC rejected Mr. Smith's main claim on appeal--that the district court had ignored uncontested evidence--but raised its own concerns about the district court proceedings. First, the district court considered the type of music that Mr. Smith listened to as probative as to whether he had requested an appeal. The KSC noted that this was both unproved and irrelevant:

But per the record on appeal, the issue of Smith's musical preference had never been mentioned before the court. And we can find no evidence in the record to point to what his musical preferences might have been in 1993 when he was 16 years old. Under Supreme Court Rule 601B, Canon 2, Rule 2.9(C), "A judge . . . shall consider only the evidence presented and any facts that may properly be judicially noticed." Contrary to the rule, no such evidence was presented nor was any court effort made to take judicial notice under K.S.A. 60-409 or 60-410. In any event, taking judicial notice of a defendant's musical taste in this context is unlikely to meet the statutory requirements. Indeed, in response to a court question during oral arguments, counsel for the State frankly admitted, "[D]id the defendant testify about the music he listened to? No. So clearly this is an assumption made by the judge."

Moreover, even if such evidence had been presented or had properly been judicially noticed, Smith's musical preferences are irrelevant to what we made clear—and the district court itself acknowledged—was the material issue before that court: his credibility. K.S.A. 60-401(b) defines relevant evidence as evidence having any tendency in reason to prove any material fact. Here, as in State v. Bornholdt, the evidence is not relevant because its connection to the material issue "requires an unrealistic leap of faith." 261 Kan. 644, 660, 932 P.2d 964 (1997).

Finally, it appears the judge was inappropriately applying a negative stereotype in connecting choice of music to refusal to appeal. Judicial bias or prejudice through words or conduct is prohibited by Supreme Court Rule 601B, Canon 2, Rule 2.3(B).  And Comment [2] explains "[e]xamples of manifestations of bias or prejudice include . . . negative stereotyping; . . . suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics."

The KSC also found problematic the district court's independent investigation in the case:

The second troubling action taken by the court was its order—apparently issued sua sponte—transmitted electronically by the judge's assistant to the Kansas Department of Corrections (DOC) to produce records of Smith's "tattoos and brands." In particular, the court demanded a "comprehensive list of all described tattoos or brands, along with 11 any photographs of same." This list and photo were provided to the court via email to the judge's assistant within hours of the order's submission to DOC on December 12, 2016— three days after Smith's hearing and three days before the court's denial of his motion to file a late appeal. At oral arguments, counsel for the State candidly conceded she was unable to provide justification or explanation for the lower court's order for this information.

Just as with Smith's taste in music, the record contains no mention of his tattoos or brands during his hearings. As mentioned, under Supreme Court Rule 601B, Canon 2, Rule 2.9(C) "A judge . . . shall consider only the evidence presented and any facts that may properly be judicially noticed." Additionally, nothing in the record reveals the court attempted to meet the substantive requirements of judicial notice.

Nor did the court attempt to meet the procedural requirements allowing it to take judicial notice. K.S.A. 60-412(d) provides that the judge "shall afford the parties reasonable opportunity to present information relevant to the propriety of taking such judicial notice and to the tenor of the matter to be noticed." And as with his music, Smith's tattoos and brands are irrelevant to the credibility determination with which the district court acknowledged it was ordered by this court to perform.

 Additionally, although no explanation appears in the record—and none could be supplied by the State at oral arguments—it again appears the judge was inappropriately applying a negative stereotype: people exhibiting such markings are not credible. After reviewing the district court record, we have found only one indication the parties could have been aware that Smith's tattoos and brands were an issue, i.e., when the court order to DOC (together with DOC's attached response listing the tattoos) was filed with the court clerk at 8:56 a.m. on December 14—merely one day before the order denying Smith's motion was filed at 9:20 a.m.

Furthermore, this independent factual research by the court is itself inappropriate. According to Supreme Court Rule 601B, Canon 2, Rule 2.9(C), "A judge shall not investigate facts in a matter independently." The prohibition extends to the judge's staff. Rule 2.9(D) provides "[a] judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge's direction and control." And finally, Comment [6] makes clear the prohibition covers many types of efforts: "The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic."

The KSC concluded that it did not have confidence regarding the district court's credibility finding in this case and especially condemned the improper use of stereotypes that would demonstrate judicial bias. As a result, the KSC remanded for a second hearing with a different district judge.

[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 25, 2018

Failure to report to probation officer does not equal absconder

Jennifer C. Roth won in State v. Dooley, No. 111,554 (Kan. August 10, 2018), obtaining a new revocation hearing in a McPherson County offender registration prosecution. Mr. Dooley had been placed on probation and the district court subsequently found violations of the terms of that probation. When considering disposition, the district court held that Mr. Dooley was an "absconder" because he had failed to report to community corrections as ordered. The district court used this "absconder" finding to bypass intermediate sanctions and remanded MR. Dooley to prison to serve his underlying sentence. The KSC reversed and remanded for appropriate findings related to the district court's finding that Mr. Dooley had "absconded":

We are persuaded to adopt that concept with respect to the phrase "absconds from supervision" in K.S.A. 2013 Supp. 22-3716(c)(8). Relying on ordinary dictionary meanings, the State must show that the probation violator engaged in some course of action (or inaction) with the conscious intent to hide from or otherwise evade the legal process. Evading the legal process of the court includes the offender's conduct in intentionally avoiding probation supervision, for example, by intentionally avoiding detection by one's probation officer. In determining whether an offender has "abscond[ed] from supervision," district courts must consider whether the offender's 

"acts show the intent that inheres in the definitions of 'abscond'—not simply that the [offender] failed to attend one meeting with a probation officer or could not be located for a brief period of time, but that the [offender] sought to 'evade the legal process of a court by hiding within or secretly leaving the jurisdiction.'"

 Because the district court had not used the correct test, the KSC remanded for a determination of whether Mr. Dooley was an "absconder" or entitled to an intermediate sanction.

Wichita DUI ordinance is broader than state DUI statute

C. Ryan Gering won in State v. Gensler, No. 112,523 (Kan. August 10, 2018), obtaining a new sentencing hearing in a Sedgwick County DUI case. The main issue was whether a prior Wichita municipal ordinance conviction could be used for enhancement purposes in a state DUI prosecution. The KSC reviewed its recent case law (blogged about here and here), which interpreted statutes to require prior convictions to be identical or narrower to avoid constitutional implications. The KSC applied the same interpretation and held that the Wichita ordinance for DUI was broader than the state statute for DUI:

Despite the panel's characterization of the ordinance as applying to operation of either a car or a bicycle, the ordinance itself only prohibits operating a "vehicle" under the influence. That is the element of the crime, which is then defined in a broad, inclusive way. This definition obviously includes both cars and bicycles, among many others, but cars and bicycles do not constitute alternative elements of the crime.

In proving Gensler's previous municipal charges, the prosecution bore the burden of proving he operated a "vehicle" while intoxicated. Whether that vehicle was a bicycle or car is impossible to determine based on a comparison of the elements of the statute and the elements of the ordinance. To determine the precise nature of the "vehicle" Gensler was operating would require a sentencing court to engage in its own fact-finding, which is impermissible. Divisibility and application of the modified categorical approach do not come into play. 

The elements of the Wichita ordinance are not the same as, or narrower than, the elements of K.S.A. 2017 Supp. 8-1567. And Gensler's convictions under the ordinance cannot be used as prior DUIs for purposes of this DUI prosecution under the state statute, K.S.A. 2017 Supp. 8-1567. 

As a result, Ms. Gensler received a new sentencing hearing.

Saturday, August 11, 2018

September 2018 Special KSC Docket (Manhattan)

Here are the criminal cases on the KSC docket for September 24, 2018, held in Manhattan, Kansas. This is a special evening setting of the KSC at Manhattan High School.

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 over the internet at the appellate court website and archived (here) if you would like to listen in to any of these arguments.

[Update: here are some photos from the traveling docket.]

September 24--Monday--p.m.

State v. Lee Williams, No. 116,690 (Wyandotte)
Direct appeal; First-degree premeditate murder
Peter Maharry
[Affirmed; Biles; October 26, 2018]
  • Improper comments in closing argument
  • Improper striking of juror based on race
  • Improper admission of autopsy photographs
State v. Evans, No. 119,458 (Dickinson)
State appeal
Whitney T. Kauffeld
  • Improper search and seizure of purse and wallet from car

Friday, July 27, 2018

September 2018 KSC Docket

Here are the criminal cases on the KSC docket for September 10-13, 2018.  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.

September 10--Monday--a.m.

State v. Brian Murrin, No. 115,110 (Clay)
Direct appeal (petition for review); Possession/Interference
Rick Kittel
[Affirmed; Beier; March 8, 2019]
  • Failure to instruct on voluntary intoxication
State v. Robert Doelz, No. 113,165 (Leavenworth)
Direct appeal (petition for review); Possession with intent to distribute
Peter Maharry
  • Officer exceeded scope of traffic stop
  • Officer violated Fourth Amendment by searching object seized from vehicle
State v. Jesus Munoz, No. 114,219 (Shawnee)
Direct appeal (petition for review); Agg indecent liberties with a child/Electronic solicitation
Kimberly Streit Vogelsberg
[Petition for review voluntarily dismissed August 30, 2018]
  • Improper instruction on electronic solicitation
  • Insufficient evidence of electronic solicitation
  • Prosecutorial error (closing argument)
State v. Lindsey Blansett, No. 115,634 (Sumner)
Direct appeal; First-degree premeditated murder
Michelle A. Davis
[Affirmed; Stegall; March 8, 2019]
  • Improper instruction on premeditation
  • Improper prosecutorial comment (burden shifting/misstating evidence)

September 12--Wednesday--a.m.

State v. James Jamerson, No. 115,629 (Shawnee)
Sentencing appeal
Joseph A. Desch
[Reversed/remanded; Nuss; January 25, 2019]
  • Improper increase in sentences not found illegal

September 13--Thursday--a.m.

State v. Kenneth Boysaw, No. 112,834 (Sedgwick)
Direct appeal (petition for review); Agg indecent liberties with a child
Corrine E. Gunning
[Affirmed; Rosen; April 19, 2019]
  • Insufficient evidence of intent
  • Improper admission of prior convictions to show propensity
  • Aggravated habitual sex offender statute unconstitutional
State v. Murad Razzaq, No. 114,325 (Sedgwick)
Direct appeal (petition fo review); Agg indecent liberties with a child
Corrine E. Gunning
[Affirmed; Rosen; April 19, 2019]
  • Improper admission of other bad acts evidence
  • Statutory speedy trial violation
State v. David Parker, Jr., No. 112,959 (Sedgwick)
Direct appeal (petition for review); Possession/Fleeing and Eluding
Christina M. Kerls
[Affirmed; Biles; December 7, 2018]
  • Fourth Amendment violation (search exceeded scope of stop)
  • Insufficient evidence of fleeing and eluding
  • Improper sentence increased based on prior convictions

Saturday, July 21, 2018

Social guest has expectation of privacy, even if not present

Donald E. Anderson, II won in State v. Dannebohm, No. 116,981 (Kan. July 6, 2018), reversing the COA's decision finding that Mr. Dannebohm did not have standing to raise a Fourth Amendment challenge during a Barton County drug prosecution. Officers searched an apartment where Mr. Dannebohm had a safe and found methamphetamine. But the apartment was not his and Mr. Dannebohn did not live there. Judge Svaty suppressed the evidence as fruit of an illegal search. The COA reversed holding that Mr. Dannebohm did not have standing to make a Fourth Amendment challenge. The COA reasoned that while Mr. Dannebohm was a welcomed social guest in the apartment, he was not present at the time of the search and, therefore, not a current guest. The KSC held that Mr. Dannebohm showed his had a sufficient expectation of privacy in the apartment to allow him to make the claim:

Tracy and Dannebohm knew each other for about 10 years, and they shared a close, sibling-like relationship. In the weeks before the search, Dannebohm was at the apartment daily. Tracy thought of him as a welcomed guest. She allowed him to stay at the apartment when she was absent. And he kept a duffel bag with his clothing at the apartment.

What is more, Dannebohm at times slept on the couch for hours at a time. Though he was not an overnight guest, the fact that Tracy permitted him to nap there after he ate dinner suggests a significant degree of acceptance into the household. 

Were we to stop here, we would easily conclude Dannebohm has shown a “degree of acceptance into the household” as well as a “meaningful connection” to Tracy's apartment. But the Court of Appeals believed that because Dannebohm was not present at the time of the search, he was not a current guest of Tracy's. Dannebohm, This holding is not entirely clear. Dannebohm was a welcomed guest who frequented Tracy's apartment daily. And he was there on the day of the search. The panel must have thought Dannebohm lost any reasonable expectation of privacy the moment he left the apartment. We disagree.\

. . . .

We have described a social guest as someone who “stand[s] in the shoes of his or her host.” Since Tracy would have standing to challenge the search of her apartment even if she were not present at the time of the search, see Alderman v. United States, 394 U.S. 165 (1969), Dannebohm's absence is not fatal to his ability to challenge the search. Under the circumstances of this case, Dannebohm's reasonable expectation of privacy in the apartment did not evaporate the moment he left. To draw such a bright (and easily manipulatable) line would unjustifiably gut a proper reasonable expectation of privacy inquiry, which demands a court's full attention to the totality of the circumstances.

As a result, the KSC remanded to the COA for a ruling on the merits of the state's appeal.

[Update: on remand, the COA affirmed Judge Svaty's suppression order, as blogged about here].

Either get waiver in writing or file petition for review

Joshua S. Andrews won in White v. State, No. 114,285 (Kan. July 6, 2018), obtaining a new hearing on whether his motion pursuant to K.S.A. 60-1507 should be permitted out of time due to manifest injustice. Mr. White had filed his petition about a year late, but alleged that the manifest injustice exception applied to excuse the late filing. The district court disagreed and summarily dismissed the motion.

Mr. White testified that the ADO had limited contact with him regarding a motion for summary disposition filed in the appellate court, in particular after he had received an adverse decision from the Court of Appeals. A letter from an ADO attorney indicated that the ADO would not file a petition for review unless Mr. White directed it to do so. In later correspondence from the ADO, it explained that it had closed Mr. White's file when he did not respond to a letter asking whether he wanted to file a petition for review. The ADO acknowledged that it had not sent a copy of the appellate mandate to Mr. White.

On appeal, the KSC first rejected the state's argument that an amendment to K.S.A. 60-1507(f), limiting "manifest injustice" to (1) reasons for the timely failure or (2) actual innocence should apply retroactively: "It would be manifestly unjust to apply the 2016 amendments if White can establish manifest injustice by using factors not included in them."

On the merits, the KSC noted the impact if Mr. White was not properly notified regarding the end of his appeal process:

we pause to emphasize that White alleges he did not receive notice of the Court of Appeals' adverse decision or of the mandate that triggered the one-year limitation of 60-1507(f). This means he allegedly lost the ability (1) to timely file a petition for review in his direct appeal, a claim made in his 60-1507 motion, and (2) to file a timely 60-1507, the claim pursued at the preliminary hearing on the 60-1507 motion. Thus, he potentially lost complete access to two state judicial proceedings and may be barred from seeking federal habeas review because he failed to exhaust state remedies when he did not file a petition for review.

The loss of access to these judicial proceedings results in the deprivation "'of more than a fair judicial proceeding,'" it results in the deprivation of an appellate and a federal "'proceeding altogether . . . . [And] we cannot accord any "'presumption of reliability'" [citation omitted] to judicial proceedings that never took place.'" Kargus v. State, 284 Kan. 908, 920, 169 P.3d 307 (2007) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 483, (2000)).

The KSC went on to find that the record was not sufficient to support the district court's finding regarding Mr. White's knowledge the end of the appeal process. In particular, the KSC agreed with the COA's criticism of the ADO for failing to file a petition for review in the absence of explicit directions from the client:

We also join the panel in expressing our concern over the practice by which the ADO considers silence to be permission to take no further action on a client's behalf. As the panel rightly noted, "silence was equally compatible with White having never received the letter at all, something that would have to be considered reasonably foreseeable especially within the corrections system." 

. . . .

Valuable rights may be lost when silence is treated as consent. A written communication waiving a petition for review better protects (1) the client's rights and (2) the judgment against a later attack based on a claim of ineffective assistance of counsel. Here, we are left with no paper trail to confirm whether White received notice and purposefully elected to waive his right to file a petition for review or a 60-1507 motion.

As a result, the KSC remanded to the district court to consider whether Mr. White received notice of the end of his appellate proceedings along with full consideration of his claims regarding the merits of his claims of error and his claims of innocence.

One consequence of this decision is that appellate counsel (at least appointed counsel) should probably file a petition for review in every case in which they receive an unfavorable decision from the COA unless they have a written waiver. And it is pretty much unheard of for a client to decide to waive that right--why would they? This decision is consistent with and confirms many appellate attorneys' practice (including within the ADO), which is to just file a petition for review in every case in which they have received an unfavorable COA decision.

 

Saturday, July 07, 2018

Normal nervousness and minor travel plan inconsistencies do not support reasonable suspicion

Dakota T. Loomis won in State v. Lowery, No. 116,637 (Kan. June 22, 2018), affirming Judge Segarra's suppression order in a Geary County transportation of drug proceeds prosecution. During a traffic stop for following too close, the officer directed Mr. Lowery to sit in his patrol car. While filling out a citation, the officer asked about travel plans. Move than six minutes into the traffic stop, the officer called in Mr. Lowery's license and registration information. The officer then went back to the car and asked the passenger about travel plans. Dispatch indicated no warrants for Mr. Lowery, so the officer gave him the citation and told Mr. Lowery he was free to go. The officer then asked if Mr. Lowery would answer some additional questions and consent to search the car, Mr. Lowery denied consent to search the car, and the officer then again directed Mr. Lowery to sit in the patrol ca. The officer asked for permission to have a drug dog check the car. Mr. Lowery asked whether he had any options and the officer said it was a step-by-step process. The officer said he had suspicion and detained Mr. Lowery. Because no other canine units were available, the officer went home and got his own canine unit (while backup officers stayed with Mr. Lowery). Nearly 35 minutes after the beginning of the traffic stop, the dog alerted near the trunk and the officers subsequently discovered drug related evidence after searching the car.

Judge Segarra found that the stop was over when the officer gave Mr. Lowery the citation, but that the resulting consensual encounter quickly ended when the officer directed Mr. Lowery to again sit in the patrol car. The question on appeal was whether the officer had reasonable suspicion to continue to detain Mr. Lowery.

The COA reversed finding that the officer had such suspicion, including observed nervousness, allegedly implausible travel plans, and the use of a third-party vehicle. The KSC disagreed. It observed that the video recording showed that "[w]hile Lowery can be described as nervous, especially after the officer turned to more incriminating subjects, Lowery can be seen answering [the officer's] questions with little hesitation, without confusion, and in a conversational tone." The KSC held that this supported the district court's finding that nervousness did not provide reasonable suspicion to detain. 

Similarly, the KSC upheld the district court's finding that the reported travel plan discrepancies were minor and insignificant as it related to possible criminal activity. And the KSC held that, where the car in question was properly insured, tagged, and registered with no report of it being stolen, the fact that it belonged to someone else did not support reasonable suspicion.

After reviewing all of the circumstances, the KSC agreed that the state did not meet its burden to show the challenged seizure was lawful and affirmed the suppression order.

Questions about travel plans are not always permitted during traffic stop

Kasper Schirer won in State v. Jimenez, No. 116,250 (Kan. June 22, 2018), affirming Judge Segarra's suppression order in a Geary County transfer of drug proceeds prosecution. When Ms. Jimenez was getting a rental agreement from the glove box during a traffic stop for following too close, the officer saw some money bundled in a rubber band. The officer had Ms. Jimenez go to his car where he questioned her about her trip. Abut five minutes and 34 seconds passed between the vehicle stop and calling in of Ms. Jimenez' drivers' license. Shortly thereafter, the officer deployed his canine unit to sniff the car. It alerted six minutes and 49 seconds after the stop began. The officer asked if there were drugs in the car, which Ms. Jimenez denied. The officer also asked whether there were any large amounts of money in the car, and Ms. Jimenez indicated there was $8,000 in cash to pay rent. Officers searched the car and found no drugs, but several currency bundles totaling about $50,000.

Judge Segarra found that the officer measurably extended the stop with questions about Ms. Jimenez' travel plans, which were unrelated to the purpose of the traffic stop, and that the officer lacked reasonable suspicion to detain her at that time. The COA reversed finding that travel plan questions were always within a stop's scope. The KSC distinguished and limited a previous case that the state touted as justifying travel plan questions during any traffic stop:

The [Rodriguez v. United States, 135 S.Ct. 1609 (2015)] court proclaimed a traffic stop's purpose is addressing the infraction and forbade the stop's duration be any longer than necessary to effectuate that purpose. This leads us to conclude Rodriguez does not envision unbridled travel plan questioning as a staple of traffic stop inquiries. Circumstances will dictate whether and to what extent such questions become part of the mission. 

The KSC recognized that travel plan questions could be appropriate as part of a traffic stop if tied to enforcement of the traffic code, like making sure that a driver can safely operate a vehicle. But the KSC noted that such questions would be harder to justify for many other traffic stops:

These scenarios highlight why circumstances dictate how a court views travel plan questioning. And courts must guard against what might be called "mission creep" by rejecting poorly justified excuses for law enforcement actions that temporally extend traffic stop encounters but lack "the same close connection to roadway safety" as those tasks enumerated in Rodriguez. In other words, when travel plan questions can be seen as having a close connection to roadway safety, they can occur without unconstitutionally extending the stop's scope. See 4 Search & Seizure § 9.3(d) (rejecting argument that travel plan questions are always within the traffic stop's scope and noting Rodriguez' listing did not include such questioning as part of the mission).

The KSC specifically rejected "the State's effort to have Kansas courts condone across-the-board travel plan inquiries."

Applying this test, the KSC agreed with Judge Segarra that "the questioning was unrelated to the infraction or the traffic stop's mission and measurably extended the stop."

Instead of pursuing his mission—inspecting the driver's license, verifying the registration and insurance, and determining if Jimenez was subject to outstanding warrants—Blake chose a different, unrelated investigation into Jimenez' recent activities, but "not to gain some insight into the traffic infraction providing the legal basis for the stop." This prolonged the stop because Blake was doing nothing in the interim to process the traffic violation. And he repeatedly testified he did not suspect criminal activity, so there was no colorable, independent justification for the portions of the detention attributable solely to the unrelated inquiries. As a result, this extended detention violated the Fourth Amendment. 

In conclusion, the KSC also rejected the COA's reasoning that the fact that the entire stop (until the dog alerted) lasted only 6 minutes and 49 seconds.  The KSC clarified that Rodriguez had rejected any sort of "rule-of thumb approach." Because the stop was measurably extended without a sufficient basis, the KSC affirmed the suppression order.

Friday, June 22, 2018

Possibility of showing third party DNA is exculpatory and noncumulative

Christina M. Kerls won in State v. George, No. 112,224 (Kan. June 8, 2018), obtaining DNA testing in a Leavenworth County rape and kidnapping prosecution. After conviction and sentencing, Mr. George filed a motion for DNA testing of some collected, but untested hairs. The district court and a majority of the COA held that additional testing would not point to Mr. George's innocence, but would at most be cumulative to other record evidence. The KSC agreed with COA Judge Atcheson in dissent, holding that the district court applied to strict a standard for exculpatory evidence: 

We agree that even if the testing of the hairs found at the spot where the rape occurred only revealed that George's DNA was not present, the results would be exculpatory because they would "tend" to disprove his guilt. At a minimum, they would tend to show he had not been at that spot. 

That this potentially exculpatory evidence may be of very little evidentiary value does not matter at this stage. Once DNA results are obtained, the district court will then make "a 'probabilistic determination about what reasonable, properly instructed jurors would do' with the new evidence in light of the totality of the circumstances.

The KSC also held that the COA majority erred by finding that any exculpatory evidence would be cumulative:

In our analysis of the "noncumulative evidence" issue, we start with the majority's acceptance of the parties' characterization "that the jury had as evidence a stipulation that 'George's DNA was not found on the complaining witness.'" As mentioned, from there the majority ultimately concluded that "the jury was provided with evidence and argument that George's DNA was not found . . . at the crime scene."

But not finding George's DNA at the crime scene was essentially a jury argument made by defense counsel. It was based upon the apparent stipulation that was limited to R.L.'s body—which counsel expanded to argue "there is no DNA match at all to my client to this crime scene. Nothing whatsoever . . . . [T]here is no DNA." A mere lack of George's DNA in the fluids on R.L.'s body—the only items tested—does not mean, however, that all untested crime scene items likewise do not contain his DNA. Accordingly, that single agreed upon fact regarding R.L.'s body cannot automatically dispose of the general question that the district court must answer when reviewing a petition for DNA testing of the hair, e.g., if those results "may produce noncumulative" evidence.  

As for the next step in our analysis on the noncumulative evidence issue, we agree with the panel's dissent. If the testing results of the hairs found at the point where the rape happened were to indicate the presence of the boyfriend's DNA, then that evidence would be cumulative of the seminal fluids' evidence. (Conversely, if the hairs' testing results indicated the presence of George's DNA, then that evidence clearly would not be exculpatory.) But under the language of K.S.A. 2015 Supp. 21-2512(c), future testing of those hairs "may produce" results indicating the presence of other individuals' DNA. And because such evidence would be the first of that type from the crime scene—especially the rape scene—it necessarily would be noncumulative under the statute.

Such evidence in turn would support George's defense that some other person— significantly, perhaps someone now identified—committed the crimes. In short, for K.S.A. 2015 Supp. 21-2512(c) purposes, there is a difference between failing to find George's DNA, which only suggests he did not commit the crimes—and actually finding someone else's DNA, which suggests that person committed the crimes instead. 

As a result, the KSC reversed and remanded for further proceedings at the district court.

Monday, June 11, 2018

Officers cannot run wants and warrants during community caretaking stop

Rick Kittel won in State v. Messner, No. 117,559 (Kan. App. May 18, 2018), obtaining reversal of a Butler County drug conviction and remand with directions to grant Mr. Messner's motion to suppress. An officer had received a tip that Mr. Messner might have not been in "shape to drive," so he followed and stopped Mr. Messner's car. The officer did not observed any traffic infraction or other basis to stop, but only stopped him to "check his welfare." After stopping Mr. Messner observed some odd behavior and slow speech, but did not smell any alcohol. The officer proceeded to get Mr. Messner's driver's license and rand a "wants and warrants" check. The check revealed a warrant, officers arrested Mr. Messner and searched his car, resulting in the drug charges. Although the COA agreed with the state that the officer had a sufficient justification for the stop and the initial encounter was legal: 

Sergeant Farris had objective, specific, and articulable facts which supported making a public safety stop. While Sergeant Farris may not have seen Messner commit any traffic infractions, he was aware that Messner was behaving strangely and that Hermann, an identified witness—as opposed to an anonymous tipster—thought he was not fit to drive. Messner also argues that Sergeant Farris did not have any fear for public safety because after stopping Messner he did nothing, such as field sobriety testing, to determine if Messner was unfit to drive. However, given that safety stops should be "'totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute'" this is unsurprising. Instead, Sergeant Farris stated unequivocally that he spoke with Messner to make sure he was alright. 

As to the second factor, when a valid safety stop is made, the officer can take appropriate action to render assistance if the individual is in need of aid. Here, the officer made some initial observations about Messner when he spoke with him. Sergeant Farris indicated that Messner's speech and movement were slow and that he seemed confused. According to Sergeant Farris this made him feel that Messner was not in a condition to drive. But because he could not smell alcohol, Sergeant Farris testified that he could not rule out that Messner's behavior may have been due to a medical condition. He also indicated that he did not know whether Messner's slow speech was out of character for Messner. He testified that he had no reason to believe at that point that any crime had been committed. Sergeant Farris continued to characterize the stop as solely a welfare check stop. He did not do any further testing of Messner's condition; instead, he asked for Messner's driver's license in order to run a warrant check.

The COA held that this last action exceeded the scope of a community caretaking stop:

Sergeant Farris exceeded the limitations of the safety stop when he did more than speak with Messner to determine whether he was alright to drive. Taking Messner's driver's license and returning to his vehicle to run a warrant check runs afoul of the rule that a safety check should be "'totally divorced from the detection, investigation, or acquisition of evidence relating to the 10 violation of a criminal statute.'" Obtaining Messner's license did not advance the safety stop. Running a check for warrants did not help Sergeant Farris determine whether Messner was in a condition to drive at that time. Sergeant Farris followed Messner for a mile and did not notice any problems with Messner's ability to drive and after speaking with Messner only noted that he had slow speech and movement and he seemed confused. Neither slow speech nor confusion are enough to overcome the fact that Messner appeared to be driving fine. Sergeant Farris gave no other reason for obtaining Messner's driver's license than to run it for wants and warrants. Even if it was reasonable to ask for identification to see who he was talking to, there was nothing related to viewing Messner's driver's license and obtaining his name that would cause suspicion. Instead, Sergeant Farris exceeded the scope of the safety stop by actually seizing Messner's driver's license and checking for warrants.

The COA concluded finding that the officer did not have reasonable suspicion to continue an investigative detention. The COA also held that the state had ever asserted attenuation and, this could not raise it on appeal for the first time. Therefore, the COA concluded that Mr. Messner's motion to suppress should have been granted.

[Update: the state did not file a PR and the mandate issued on June 25, 2018.

Friday, April 20, 2018

Prosecutorial misconduct requires new trial

Nancy Ogle, Stacey L. Schlimmer, and Adam D. Stolte won in State v. Chandler, No. 108,635 (Kan. April 6, 2018), obtaining a new trial in a Shawnee County first-degree premeditated murder prosecution. The prosecution stemmed from a cold case investigation of the shooting death of Ms. Chandler's ex-husband and his new wife. The KSC detailed the weakness of the state's case in several respects as it related to the claims made on appeal, including inconsistent statements about Ms. Chandler's whereabouts and failure to prove payment for gas needed to travel to the crime scene.

On appeal, the KSC applied the "rather low bar" for sufficiency and found that a rational fact-finder could have found Ms. Chandler guilty based on her inconsistent statements and statements made during a jailhouse phone call. But the KSC went on to find blatant prosecutorial error requiring a new trial. Although the KSC found several errors, it reasoned that "only the one conceded error was enough to reverse these convictions--the prosecutor falsely claiming [ex-husband] got a protection from abuse order against Chandler from the Douglas County District Court." The KSC noted that, while all agree there was no protection from abuse order, the prosecutor explicitly told the jury the opposite:

These misstatements conveyed serious adverse impressions to the jury. They improperly declared that a judge independently reviewed Chandler's behavior and concluded she was dangerous enough to justify a court order for [ex-husband's] protection. They also told the jury Chandler was so out of control that she violated that court order, i.e., accuses her of wrongdoing that would constitute "prior bad acts" if presented as evidence. See K.S.A. 2017 Supp. 60-455 (subject to specific exceptions, evidence a person committed a crime or civil wrong on a specified occasion is inadmissible as basis to infer  the person committed another crime or civil wrong on another specified occasion). None of this was true. 

In its final supplemental brief, the State acknowledges "the prosecutor misspoke when she informed the jury that [ex-husband] had obtained a 'protection from abuse, a court order.'" But that concession, while laudable, was a long time coming—even though we would expect the State never to shield something so obviously indefensible. 

. . . .

Even if the prosecutor was meaning to reference the initial ex parte order, her statement would remain seriously misleading because she did not mention the order was routine, temporary, or directed to both parties. These are critical distinctions. Instead, the prosecutor made it appear Chandler was the order's target and her behavior the reason for the judge to enter it—none of which would have been true, even if the prosecutor got mixed up. And the State's speculation about possible confusion ignores the specific "protection from abuse" references made in questioning the detective and the timeline presented, i.e., one year after [ex-husband] filed for divorce. 

This court cannot understand why so much energy had to be expended by all concerned to get us to the State's belated admission about something that never existed in the trial record. 

The KSC then went on to note that, while there might be enough evidence in light of a sufficiency claim, there was no direct evidence of guilt and that "the error intruded into the jury's decision on paramount elements to the State's theory. The prosecutor traded on an untrue statement about a protection from abuse order." The KSC noted that, even though it had recently changed its vocabulary to describe "prosecutorial error" for most types of improper argument that might result in an unfair trial, the can still be "misconduct" for erroneous acts done with a level of culpability that exceeds mere negligence. 

We have those in Chandler's case. The prosecution's lapses compel the harsher prosecutorial misconduct label. The errors outlined in this decision are not "minor aberrations in a prolonged trial."

As a result, the KSC reversed and remanded for a new trial.

Friday, March 30, 2018

Comparable out-of-state prior conviction must be identical or narrower than Kansas offense

Korey A. Kaul won in State v. Wetrich, No. 112,361 (Kan. March 9, 2018), obtaining a new sentencing hearing in a Johnson County kidnapping prosecution. The primary issue (in this case and several companion cases decided the same day), was the classification of a prior conviction as a person felony--in this particular case, a prior Missouri conviction for burglary. Classification of prior convictions as person or nonperson offenses can have a big impact on the presumptive sentencing range in a case. In Kansas, residential burglary (burglary of a dwelling) is a person felony; non-residential burglary (burglary of everything but a dwelling) is a nonperson felony.

In Wetrich, the district court held that the prior Missouri burglary conviction was "comparable" to Kansas' residential burglary because it involved burglary of an "inhabitable structure."

The Kansas Supreme Court reviewed its recent case law in Dickey (blogged about here), Dickey had involved classification of pre-Guidelines Kansas burglary convictions. But the KSC held that the same underlying law was applicable in Wetrich:

But in order to avoid the constitutional prohibition against enhancing a sentence through judicial fact-finding announced in Apprendi, Dickey held that the dwelling requirement must have been an element of the prior offense, rather than a fact found by the sentencing court in the current case. Because Dickey had a prior juvenile adjudication for burglary in 1992, when the definition of the offense did not include an element requiring the burglarized structure to be a dwelling, the prior offense had to be scored as a nonperson felony. Dickey also relied on the methodology employed by the Supreme Court in [Descamps v. United States, 570 U.S. 254 (2013)] to constitutionally construe a federal statute.

The KSC also noted that the United States Supreme Court had recently considered an Iowa state burglary conviction as it related to federal sentencing:

[Mathis v. United States, 136 S. Ct. 2243 (2016)] held that, because the elements of Iowa's burglary law were broader than those of generic burglary, Mathis' prior Iowa burglary convictions could not be used to enhance his sentence under the federal Armed Career Criminal Act (ACCA). In the process, Mathis opined that the strict elements focus was not only required by the language of the federal statute, but also because of "serious Sixth Amendment concerns" and fairness to defendants.

Although the KSC did not decide this case on constitutional grounds, it did so with this constitutional background. The KSC held that the use of the word "comparable" in the Kansas statute governing classification of out-of-state convictions was somewhat ambiguous and observed that the Kansas Legislature wanted to reduce disparate treatment of offenders in Kansas. Synthesizing these ideas in light of the constitutional background, the KSC held that the Missouri burglary statute was not identical or narrower that the Kansas offense of residential burglary:

The comparison reveals two elements that are broader in the Missouri statute: the specific intent required and the structure involved. The Kansas crime to which the Missouri conviction is being compared—burglary of a dwelling—requires that the entry into or remaining within be done with the specific intent to commit a felony, theft, or sexual battery therein. In contrast, the specific intent required for the Missouri second degree burglary is that the burglar's purpose is to commit any crime. Consequently, the mere existence of the Missouri conviction does not establish the mental state element of the Kansas reference offense because the Missouri mental state element is broader. The purpose for the unlawful entry in Missouri could have been to commit misdemeanor property damage which would not be a burglary in Kansas. 

And, of course, the critical element of the Kansas crime is that the structure involved must be a dwelling, defined as "a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence." In the Missouri crime, in contrast, the element of the charged crime was that Wetrich unlawfully entered or remained within an inhabitable structure, which is broadly defined to include, in addition to a structure where any person lives, such non-dwelling places as a business, government office, school, church, rollerskating rink, or bus station. Again, the breadth of the element in Missouri defeats comparability with the Kansas crime of burglary of a dwelling. And, as suggested above, we agree with Mathis' lesson on the distinction between elements and means; the modified categorical approach is not employed to discover which alternative means or facts were used in Missouri to establish the crime's inhabitable-structure element. Again, the Missouri prior conviction fails our comparability test.

Utilizing this statutory approach, the KSC held that the Missouri burglary was not "comparable" to Kansas' residential burglary and therefore ordered resentencing.

Cannot modify non-vacated sentences on remand

Patrick H. Dunn won in State v. Warren, No. 115,972 (Kan. March 9, 2018), obtaining a new sentencing hearing in a Wyandotte County murder prosecution. On direct appeal, the KSC reversed Mr. Warren's hard 50 sentence. On remand, the district court imposed a hard 25 sentence, but also increased two other sentences that had not been vacated in the direct appeal and ran those sentences consecutive to the hard 25 sentence, as opposed to concurrently, as originally ordered. The KSC reaffirmed and applied State v. Guder, 293 Kan. 763, 267 P.3d 751 (2012), holding that the Kansas Sentencing Guidelines act prohibits modification of guidelines sentences unless reversed. In the instant case, that meant that the district court could not increase the non-vacated sentences on remand:

We explicitly held in Guder that the KSGA statutory changes to sentencing abrogated the common law authority of district courts to modify any sentences that were not vacated on appeal. Applying that holding here requires that Warren's original 7 sentences for counts 2 and 3—each for 155 months and running concurrent to count 1— be reinstated.

The KSC also rejected the state's claim that, because the hard 50 sentence had been vacated, the district court could make it consecutive to the non-vacated sentences on remand:

To begin our analysis, we acknowledge that typically a district court has the discretion on whether to originally impose concurrent or consecutive sentences in multiple conviction cases. This rule is necessarily subject, however, to our holding that on remand only the vacated sentence can be changed. And to change Warren's sentence for the premeditated first-degree murder conviction from concurrent with—to consecutive to—the others would be an impermissible de facto modification of them.

Simply put, when Warren was first sentenced, because each count was to run concurrent, he was effectively serving each of his three sentences. Changing the life sentence from concurrent to consecutive on remand would make all of Warren's served time count toward only the premeditated first-degree murder sentence for the first 25 years, i.e., the sentences for the other crimes would not begin until completion of his hard 25. See K.S.A. 21-4720(b)(2) ("If sentences for off-grid and on-grid convictions are ordered to run consecutively, the offender shall not begin to serve the on-grid sentence until paroled from the off-grid sentence."). So the effect of this change constitutes an improper modification of the nonvacated second and third sentences.

So Mr. Warren's cases was returned to the district court with directions to reinstate the original concurrent guidelines sentences.