September 2020 KSC docket

Here are the criminal cases on the KSC oral argument docket for September 14-18, 2020 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. Due to ongoing pandemic issues, these arguments are being conducted and broadcast by Zoom videoconference on the Court's YouTube channel. The scheduling order also includes several cases that will be heard without argument that are not summarized here.

September 14--Monday

State v. Gianni Daino, No. 120,824 (Johnson)

State appeal (petition for review)

Senanem D. Gizaw

[Rev/Rmd; Wall; November 13, 2020]

• Improper entry into apartment in violation of Kansas Constitution

September 15--Tuesday

State v. Victor Valdiviezo-Martinez, No. 111,447 (Johnson)

Direct appeal (petition for review); Identity theft

Randall L. Hodgkinson

[Affirmed; Luckert; May 21, 2021]

• Insufficient evidence of intent to defraud
• Insufficient evidence of offense occurring within statute of limitations
• Identity theft statute is unconstitutionally vague 

State v. Corbin Breitenbach, No. 120,503 (Sedgwick)

Direct appeal; Attempted capital murder, aggravated criminal sodomy

Clayton P. Perkins

[Affirmed; Wilson; March 26, 2021]

• Improper denial of independent DNA testing
• Failure to appoint new counsel
• Failure to appoint standby counsel
• Failure to disclose exculpatory evidence of fingerprint testing

September 16--Wednesday

State v. Luis Aguirre, No. 119,529 (Riley)

Direct appeal; First-degree premeditated murder

Clayton P. Perkins

[Affirmed; Wilson; April 23, 2021]

• Improper admission of involuntary statements
• Improper admission of expert testimony
• Insufficient evidence of premeditation
• Improper use of stipulated evidence at second trial
• Denial of instruction on evidence stacking
• Prosecutorial error
• Lack of jurisdiction to convict of lesser offenses of capital murder

Website that says it isn't reliable probably isn't reliable

Randall Hodgkinson won in State v. Yazell, No. 116,761 (Kan. June 19, 2020), reversing the COA's dismissal of his appeal as moot. During Mr. Yazell's appeal from probation revocation, the state filed a pleading suggesting that Mr. Yazell has served his entire sentence rendering the appeal moot. In support of its assertion, the state attached a printout from the Kansas Department of Corrections website indicating that Mr. Yazell had completed his sentence and also indicated that it had talked to a KDOC employee over the phone. Based on this documentation, the Court of Appeals dismissed Mr. Yazell's appeal. On review, Mr. Yazell argued that this documentation was insufficient to establish a party's burden to show a case is moot before it is dismissed on appeal. The KSC started by noting that appellate fact-finding is the exception, not the rule: 

Generally, Kansas appellate courts do not make factual findings. This task is reserved for district courts, where evidence is offered and tested. If an appellate court reviews the district court's factual findings, it generally does so only to ensure that substantial competent evidence supported those findings; it does not reweigh or reassess the evidence.

But there are times when an appellate court is called upon to make a finding of its own. One of those times occurs in this appeal—where a party alleges that a change in circumstance since the district court proceedings has rendered an action moot. Before the appellate court may consider mootness, it must confirm the change in circumstance. 

Appellate fact-finding is simple when both parties agree that a change has taken place, or the change is so ubiquitous the court may take judicial notice of its happening. K.S.A. 60-409(a) (allowing courts to take judicial notice of facts of "generalized knowledge"). When the parties do not agree that a change has occurred, appellate factfinding becomes more difficult. The appellate forum is not conducive to the taking or testing of evidence. For this reason, appellate courts must carefully scrutinize the reliability of evidence before making the rare finding of fact.

Reviewing the COA order, the KSC noted that it did not reflect the COA's reasoning or basis for its decision. In particular, the KSC observed that the Department of Corrections website itself disclaimed any accuracy:

"The information contained on this website is subject to disclosure pursuant to the Kansas Open Records Act (K.S.A. 45-221). While the information is believed to be accurate, the State of Kansas, the Kansas Department of Corrections, their employees or officers, make no warranties, express or implied, including warranties of merchantability and fitness for a particular purpose. Further the Kansas Department of Corrections assumes no legal liability or responsibility for the accuracy, completeness, or usefulness of any information, product, or process disclosed, nor represents that its use would not infringe on privately owned rights."

In light of such a disclaimer, the KSC held that reliance upon such information for disposition of an appeal was inappropriate. As a result, it reversed the dismissal and remanded to the COA for further proceedings.

Probation revocation appeal not necessarily moot just because sentence completed

Kimberly Streit Vogelsberg and Kasper C. Shirer won in State v. Ward, No. 116,545 (Kan. June 19, 2020), reversing the COA's dismissal of a probation revocation appeal in a Franklin County criminal threat prosecution. After probation revocation, Mr. Ward filed a motion pursuant to K.S.A. 60-1507 challenging the revocation, which the district court summarily denied. While on appeal from denial, the COA ordered Mr. Ward to show cause why the case should not be dismissed as moot because Mr. Ward had completed the sentence. Mr. Ward stipulated that he had completed the sentence, but argued that his appeal could still have an effect in future cases. 

The KSC cited its own decision decided the same day holding that "completion of a sentence does not necessarily render a case moot" and remanded to allow the COA to make an appropriate determination:

In his petition for review, Ward again points to the distinguishing factor between his case and Montgomery—that he challenges the probation revocation, not just the sanction—and argues that this means a judgment here will affect a future sentence and, therefore, affect his rights, including future sentencing decisions and when he can legally possess a firearm or expunge his conviction. 

Today we published State v. Roat. Therein, we have outlined the law governing mootness and explained that the completion of a sentence does not necessarily render a case moot. We disavow any use of such a bright-line rule and direct courts to carefully analyze whether dismissal would affect an asserted right. The Court of Appeals did not have the advantage of Roat when it rejected Ward's appeal. We remand this case to the Court of Appeals so that it may reconsider the arguments that Ward presented in his response to the panel's show cause order under the guidance provided in Roat.

I expect we will have additional litigation on how the mootness doctrine applies in these circumstances.