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.

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. 

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.]

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.

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

[Writ granted; per curiam; May 17, 2019]

• Double jeopardy bar to second trial after mistrial

State v. Wyatt Brown, No. 113,751 (Brown)

Sentencing appeal (petition for review)

Kai Tate Mann

[Vacated/remanded; Beier; March 1, 2019]

• 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

[Reversed/remanded; Biles; December 14, 2018]

• 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)

[Affirmed; per curiam; July 19, 2019]

• 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

[COA reversed; Stegall; November 27, 2019]

• 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

[Aff'd/Rev'd; Nuss; June 28, 2019]

• Improper admission of statements pre- and post-Miranda

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.