Probation not possible for person that has served sentence

Samuel Schirer won in State v. Kinder, No. 112,844 (January 5, 2018), vacating an order of probation in a Wyandotte County mistreatment of a dependent adult prosecution. Mr. Kinder pleaded no contest to the charge and the presumptive sentencing range was 7 to 9 months prison and the presumptive disposition was probation. But at sentencing, defense counsel noted that Mr. Kinder had almost 12 months of jail credit and therefore asked that the district court not impose probation, but simply find that Mr. Kinder had served the sentence. The district court refused and placed Mr. Kinder on probation for 18 months.

On appeal, the COA dismissed the appeal funding that it lacked jurisdiction because the district court had imposed a presumptive sentence. The KSC disagreed and held that "the question on appeal is not whether Kinder's sentence is presumptive and thus nonreviewable. Rather, the question is more properly characterized as whether the district court was authorized to retain control of Kinder via probation after he had fully served his sentence, i.e., already spent more time in "credited" confinement than the KSGA maximum of nine months." The KSC held that an appellate court did have jurisdiction over this question.

On the merits, the KSC considered the nature of probation as a disposition in Kansas and held that, if a person has served their entire sentence of confinement, probation cannot be appropriate:

In sum, because Kinder's sentence of confinement already has been served, there can be no sentence to be suspended. And if there is no sentence, it obviously cannot be exchanged for probation.

The State argues in the alternative that we should vacate Kinder's probation and remand for the district court to impose 12 months of postrelease supervision for his level 8 offense. See K.S.A. 2016 Supp. 22-3717(d)(1)(C). At oral arguments, Kinder appeared to agree that postrelease supervision is required even after service of the full term of his sentence. 

We note, however, that Kinder was sentenced to probation well over 12 months ago. So remand for imposing postrelease supervision of 12 months would be pointless. While a similar argument could be made about the 18-month probation period that also has now expired, i.e., making the issue of its propriety moot, we granted review and applied a common exception to the rule that appellate courts will not review moot 11 issues—if such an issue "is capable of repetition and raises concerns of public importance."

As a result, the KSC simply reversed the district court's order of probation.

March 2018 KSC Docket

Here are the criminal cases on the KSC docket for March 5-9, 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.

March 5--Monday--a.m.

State v. Stacy Gensler, No. 112,523 (Sedgwick)
Direct appeal (petition for review); DUI
Christopher Ryan Gering

[Vacated/remanded; Beier; August 10, 2018]

• Improper use of Wichita municipal DUI conviction to enhance subsequent prosecution

State v. Christopher Schrader, No. 115,196 (Sedgwick)

Sentencing appeal (petition for review)

Christopher Ryan Gering

[Vacated/remanded; Beier; August 10, 2018]

• Improper use of Wichita municipal DUI conviction as person felony

State v. David Mears, No. 115,278 (Sedgwick)

Direct appeal (petition for review); DUI

Christopher Ryan Gering

[Vacated/remanded; Beier; August 10, 2018]

• Improper use of Wichita municipal DUI conviction to enhance subsequent prosecution

March 6--Tuesday--a.m.

State v. Willie Fleming, No. 112,549 (Johnson)

Direct appeal (petition for review); Agg robbery/Agg burglary

Peter Maharry

[Affirmed; Luckert; August 10, 2018]

• Jury instruction broader than charging document

State v. Hai That Ton, No. 113,220 (Johnson)

Direct appeal (petition for review); Possession with intent to distribute

Randall L. Hodgkinson

[Affirmed; Rosen; July 27, 2018]

• Fourth Amendment violation (no reasonable suspicion to seize package)

March 7--Wednesday--a.m.

State v. Jessenia Jimenez, No. 116,250 (Geary)

State appeal (petition for review)

Kasper C. Schirer

[Affimed; Biles; June 22, 2018]

• Fourth Amendment violation (improper extension of stop)

State v. Shaun Schooler, No. 116,636 (Geary)

State appeal (petition for review)

Michael P. Whalen

[Reversed; Biles; June 22, 2018]

• Fourth Amendment violation (improper extension of stop)

State v. Derrick Lowery, No. 116,637 (Geary)

State appeal (petition for review)

Dakota T. Loomis

[Affirmed; Biles; June 22, 2018]

• Fourth Amendment violation (improper extension of stop)

State v. Robin Boggess, No. 111,361 (Butler)

Direct appeal (petition for review); Possession

Carol Longenecker Schmidt

[Affirmed; Stegall; August 24, 2018]

• Fourth Amendment violation (no apparent authority to consent to search of bag)

March 8--Thursday--a.m.

State v. David Hanke, No. 114,143 (Harvey)

Direct appeal (petition for review); Possession

Ryan J. Eddinger

[Affirmed; Nuss; April 20, 2018]

• Fourth Amendment violation (no reasonable suspicion to support detention)

State v. Issac Williams, No. 108,394 (Sedgwick)

Direct appeal (petition for review); Aggravated burglary/aggravated battery

Randall L. Hodgkinson

[Affirmed; Luckert; November 30, 2018]

• Insufficient evidence of entry without authority
• Improper instruction defining bat as deadly weapon
• Failure to instruct on simple assault
• Aggravated battery where great bodily harm "can be inflicted" is unconstitutionally vague
• Failure to instruct on simple battery

Improper parental discipline instruction results in reversal

Rick Kittel won in State v. Samuel White, No. 116,048 (Kan. App December 22, 2017), obtaining a new trial in a Sedgwick County aggravated child endangerment prosecution. The charges stemmed from an investigator finding Mr. White's children locked in a bare room in his house. The district court proposed giving an instruction on parental discipline as an affirmative defense. Mr. White objected because it would appear that he had use force on the children.  The COA agreed that the instruction was not factually appropriate:

The State presented no evidence there was improper physical contact between White and his children. The instruction as given discusses the use of "reasonable amount of force upon a child." From our review, the instruction's use of the word "force" refers to corporal punishment and there was no evidence presented of corporal punishment. If the reference can be construed as referring to the force of locking the door, then all of the evidence reflects the children's mother locked them in their room and when White came home, he just left the door locked. 

This court recognized the parental discipline instruction as an affirmative defense in State v. Wade, 45 Kan. App. 2d 128, 136-37, 245 P.3d 1083 (2010). We have been able to find only one other Kansas case, State v. McDuffie, No. 106,528, 2012 WL 3136492 (Kan. App. 2012) (unpublished opinion), discussing the defense of parental discipline. In both Wade and McDuffie, the defendants were charged with battery. Both defendants admitted to using physical force but argued the use of force was justified. Similarly, the cases cited in Wade supporting the parental discipline instruction all involved physical contact between the defendant and his or her child. We have been unable to find any cases in Kansas in which the defendant did not use physical force in disciplining the child when the defense of parental discipline was given by the district court.

Having found the parental discipline instruction in error, the COA went on to determine whether to reverse. Mr. White argued that the error should be structural, but the COA held that it would apply a constitutional harmless error test and then found that the state failed to adequately show harmlessness on appeal:

Given White's right to control his theory of defense, we find the giving of this instruction was error. Under the constitutional harmless error standard, as the party benefitting from the error—here, a theory of defense instruction the defendant did not want—the State must prove beyond a reasonable doubt the error would not or did not affect the outcome of the trial in light of the record as a whole. The State's brief fails to adequately address this issue. The State failed to show the district court's decision to give the affirmative defense instruction over White's objection did not affect the outcome of the trial. We find White is entitled to a new trial.

[Update: the state did not file a PR and the mandate issued on January 29, 2018.]

 

Criminalizing refusal to take PBT is also unconstitutional

Kimberly Streit Vogelsberg won in State v. Robinson, No. 116,872 (Kan. App. December 22, 2017), reversing in part a Johnson County conviction for refusal to submit to a preliminary breath test (PBT). The state had conceded that a conviction for refusal to submit to BAC testing was unconstitutional under Ryce (blogged about here).  Acknowledging that a PBT is a search, the COA held that the separate conviction for refusing to submit to a PBT test was similarly unconstitutional:

In Ryce I, our Supreme Court determined that K.S.A. 8-1025 narrowly and unambiguously penalizes a driver for refusing to submit to a search "deemed consented to" under K.S.A. 8-1001(a). Applying the text of 8-1025 to the constitutional principles regarding reasonable searches, the court concluded that the State cannot criminally punish a defendant for withdrawing his or her implied consent. The same analysis applies to K.S.A. 8-1012. This statute penalizes a driver for refusing to submit to a PBT, which is a search deemed consented to under K.S.A. 8-1001(a). The State cannot criminally punish a defendant for withdrawing his or her implied consent. To the extent that K.S.A. 8-1012 criminalizes a person's right to withdraw his or her consent to what amounts to a warrantless search, the statute violates a suspect's Fourth and Fourteenth Amendment rights and § 15 of the Kansas Constitution Bill of Rights. 

The State asserts that K.S.A. 8-1012, unlike K.S.A. 8- 1025, is narrowly tailored to serve its compelling interests in both combatting and penalizing drunk driving and in protecting public safety on the roads. Specifically, the State argues that K.S.A. 8-1012 is narrowly tailored to serve the criminal justice interests, to serve public safety, and to protect the safety of testing personnel.

In arguing that the statute is narrowly tailored to serve the criminal justice interests, the State points out that unlike with an evidentiary breath test, where an officer already has probable cause to believe that a driver is operating a vehicle while under the 15 influence, the PBT statute only requires reasonable suspicion. In Ryce I, our Supreme Court determined that "[g]iven the availability of a warrant, we question whether 8-1025 is narrowly tailored." The State points out that a warrant is not an available tool for a PBT as the test only requires reasonable suspicion in the first place.

We do not see this argument as helping the State's cause. A PBT is a search subject to the strictures of the Fourth Amendment. A search, absent voluntary consent, ordinarily requires probable cause, not reasonable suspicion. Thus, to the extent that K.S.A. 8-1012(b) is premised on reasonable suspicion, it appears that the statute is based on an incorrect constitutional standard. The fact that a PBT only requires reasonable suspicion makes a driver's free and voluntary consent to such a search all the more vital.

Therefore, the COA held that the statute penalizing refusal to submit to a PBT suffered from the same constitutional flaw as that found in Ryce and reversed.

The state also stipulated that a prior DUI was not comparable to Kansas' DUI statute, so Mr. Robinson's DUI sentence was also vacated and the matter remanded for resentencing.

[Update: the state did not file a PR and the mandate issued on January 29, 2018.]