Exoneration through persistence

Here is an article on a recent win by Michael Whalen.  Mr. Swenson was convicted of attempted second-degree murder in Sedgwick County in June 2000.  After a long, long procedural history, in February 2010, the Court of Appeals ordered a new trial and the district court discharged Mr. Swenson (blogged about here and here).  The state successfully appealed that dismissal, but as the article relates, in December 2013, the state dropped the charges!

Thank you, DOJ. May I have another?

The U.S. Department of Justice recently adopted the position that the recommended U.S.S.G. range for supervised release for a SORNA conviction (failure to register - 18 U.S.C. § 2250) is a flat term of five years.  In contrast, the statutory range of supervised release for a SORNA conviction is five years to life.  18 U.S.C. § 3583(k).  Thus, this DOJ position should help keep supervised release terms in SORNA cases on the low end of that statutory range.

The DOJ's concession on this issue came in United States v. Davis, No. 13-4112 (4th Cir. 2013).  In its motion to remand for resentencing, the government explained that it changed its position after receiving "the Department's guidance."  I have recently received a similar filing in a SORNA case in my district.  So the word is apparently out.  This DOJ position is obviously important for SORNA prosecutions, but it may also be important in a good number of federal drug prosecutions.

 

In Davis, the DOJ conceded the following: 1) that the failure to register as a sex offender is not a “sex offense,” under U.S.S.G. § 5D1.2(b)(2); and 2) the advisory guideline range for supervised release for such a conviction is a single point: 5 years.  In doing so, the DOJ apparently adopted the position of the Seventh Circuit in United States v. Goodwin, 717 F.3d 511 (7th Cir. 2013).

United States v. Goodwin & United States v. Gibbs

In Goodwin, 717 F.3d at 520, the court held that a life term of supervised release constituted plain error because a SORNA violation was not a “sex offense” under U.S.S.G. § 5D1.2(b)(2). Accordingly, the court held that the guidelines did not recommend lifetime supervised release.  But the court went on to hold that the advisory guidelines range for supervised release was a single point: five years.  Goodwin, 717 F.3d at 520. Citing U.S.S.G. § 5D1.2(c), the court stated, “[w]here, as here, the statutory minimum term of supervised release is greater than the top end of the Guidelines range of § 5D1.2(a)(2), the statutory minimum controls.”  Goodwin, 717 F.3d at 520.

The Goodwin decision cited to United States v. Gibbs, 578 F.3d 694, 695 (7th Cir. 2009), which explained a similar issue as follows:

In keeping with that idea, § 5D1.2(c) of the Guidelines provides that “[t]he term of supervised release imposed shall be not less than any statutorily required term of supervised release.” Thus, the statutory minimum term of supervised release defines either the bottom limit of the advisory Guideline range or the entire range (if it coincides with the top of the Guidelines range). For Gibbs, because the Guidelines suggested three to five years but the statute requires five years, the advisory Guideline range becomes five years, period.

The issue in Gibbs concerned the correct guidelines range of supervised release in a prosecution under 21 U.S.C. § 841(a)(1).

Application to Federal Drug Cases

Just as in SORNA prosecutions, certain defendants who are convicted of federal controlled substance offenses under 21 U.S.C. § 841(a) face a statutory minimum term of supervised release that is higher than the usual guidelines range.   See U.S.S.G. § 5D1.2(a)(1) (setting a term of supervised release of "[a]t least two years but not more than five years for a defendant convicted of a Class A or B felony").  Cf. 21 U.S.C. § 841(b)(1)(A) (five-year or ten-year statutory minimum term of supervised release); 21 U.S.C. § 841(b)(1)(B) (four-year or eight-year statutory minimum term of supervised release); 21 U.S.C. § 841(b)(1)(C) (three-year or six-year statutory minimum term of supervised release).

Thus, in many of these controlled substance cases, “the statutory minimum term of supervised release is greater than the top end of the Guidelines range of § 5D1.2(a)(2) . . . ."  And in this situation, U.S.S.G. § 5D1.2(c) dictates that "the statutory minimum controls.”  This is true regardless of whether the crime of conviction is failure to register as a sex offender under 18 U.S.C. § 2250 or a controlled substance offense under 21 U.S.C. § 841(a).  Thus, the government's concession of this issue in a SORNA case should impact drug prosecutions under  21 U.S.C. § 841(a).

The Tenth Circuit previously considered the application of U.S.S.G. § 5D1.2(c) to a supervised release term for a 21 U.S.C. § 841 conviction in United States v. Poe, 556 F.3d 1113, 1129 (10th Cir. 2009).   In Poe, the court considered the procedural reasonableness of a 10-year term of supervised release for a conviction of possession of methamphetamine with intent to distribute sentenced under 21 U.S.C. § 841(b)(1)(C), where the minimum statutory term of supervised release was six years.  The court summarized the defendant's argument:  "Poe contends that § 5D1.2(a) interacts with § 5D1.2(c) such that if a statutory mandatory minimum is higher than the term a defendant would otherwise receive under § 5D1.2(a), that statutory minimum is also the maximum of the applicable Guidelines range. Under this theory, the applicable Guidelines range in this case is six years, no more, no less."  Poe, 556 F.3d at 1129.  The Poe court did not reach the issue, concluding instead that Poe had not shown plain error.  Id.

Nonetheless, it appears that the issue in Poe regarding the guidelines range of supervised release for a conviction under  21 U.S.C. § 841(a) is the same as the SORNA issue conceded by the DOJ in the Davis case.  Although the concession in Davis was cursory and did not cite to case law, it appears the DOJ adopted the holding of the Seventh Circuit in Goodwin.  And because of this similarity, attorneys in these cases should object to any PSR that sets a guidelines range of supervised release of "___ years to life."  Instead, it is very likely that Goodwin/Gibbs and U.S.S.G. § 5D1.2(c) control the guidelines range of supervised release for offenses sentenced under 21 U.S.C. § 841(b).  And as explained in Gibbs, "the statutory minimum term of supervised release defines either the bottom limit of the advisory Guideline range or the entire range (if it coincides with the top of the Guidelines range)."  See 578 F.3d at 695.
   

January 2014 KSC Docket

Here are the criminal cases on the KSC docket for January 27-31, 2014. 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 if you would like to listen in on any of these arguments.

 

January 27--Monday--a.m.

 

State v. Alehandro Betancourt, No. 106,318 (Sedgwick)

Direct appeal; First-degree murder

Michelle A. Davis

[Affirmed; Rosen; April 11, 2014]

• Improper aiding and abetting instruction
• Improper alternative means instruction
• Failure to give lesser included offense for voluntary intoxication
• Failure to grant mistrial after prejudicial information at voir dire

State v. Shawn Alderson, No. 106,471 (Sedgwick)

Re-sentencing appeal

Sean M.A. Hatfield, Carl F.A. Maughan

[Affirmed; Rosen; April 11, 2014]

• Denial of release of restitution order

State v. James Williams, No. 106,865 (Sedgwick)

Sentencing appeal

Ryan Eddinger (brief); Adam D. Stolte (argue)

[Affirmed; Nuss; June 13, 2014]

• Improper classification of prior conviction

January 28--Tuesday--a.m.

 

State v. Willie Reed, No. 105,307 (Wyandotte)

Direct appeal; Agg indecent liberties

Ronald L. Jurgenson

[Affirmed; Luckert; August 8, 2014]

• Insufficient evidence
• Whether Jessica's Law is Cruel and Unusual Punishment
• Improper admission of hearsay
• Improper admission of evidence that contains comment on credibility
• Prosecutorial misconduct (comment of right to remain silent)

State v. Loviss Todd, No. 106,021 (Wyandotte)

Direct appeal; Felony murder

Michelle A. Davis

[Affd/Vacd; Beier; April 25, 2014]

• Failure to give accomplice instruction
• Improper reasonable doubt instruction
• Failure to give lesser-included offense instruction for second degree murder
• Failure to give proper eyewitness ID instruction
• Prosecutorial misconduct

State v. Jose Santos-Vega, No. 104,485 (Wyandotte)

Direct appeal; Agg indecent liberties

Michael J. Bartee

[Rvd/rmd; Biles; March 21, 2014]

• Improper alternative means instruction
• Failure to give unanimity instruction
• Improper evidence of invocation of right to silence
• Disproportionate sentencing

State v. Anthony Waller, No. 106,102 (Reno)

Direct appeal; Felony murder

David E. (Rick) Roberts

[Affirmed; Rosen; June 6, 2014]

• Failure to give lesser-included offense instructions
• Denial of mistrial after courtroom outburst
• Multiplicity

 

January 29--Wednesday--a.m.

 

State v. Scott Roeder, No. 104,520 (Sedgwick)

Direct appeal; First-degree murder

Rachel L. Pickering

[Affd/Vacd; Johnson; Oct. 24, 2014]

• Failure to give lesser-included offense instructions
• Failure to change venue
• Prosecutorial misconduct
• Failure to allow necessity defense
• Failure to give instruction on defense of others
• Improper weighing of aggravating and mitigating factors for hard-50
• Hard-50 is unconstitutional under Alleyne

State v. Kelvin Gibson, No. 106,646 (Wyandotte)

Michael J. Nichols (brief); Jeffrey C. Leiker (argue)

Direct appeal; First-degree murder

[Affirmed; Biles; April 18, 2014]

• Denial of motion to suppress statements
• Failure to allow defendant to testify at suppression hearing

State v. Andrew Morris, No. 107,768 (Crawford)

Motion to withdraw plea

Meryl Carver-Allmond

[Affirmed; Beier; March 7, 2014] 

• Denial of motion to withdraw plea

State v. Andrew Greene, No. 106,640 (Johnson)

Direct appeal; Rape

Rachel L. Pickering

[Affd/Vacd; Moritz; July 11, 2014]

• Improper classification as aggravated habitual sex offender
• Failure to suppress statements

January 30--Thursday--a.m.

 

State v. John Horton, No. 101,054 (Johnson)

Appeal after remand

Lydia Krebs

[Affirmed; Rosen; Aug. 8, 2014]

• Failure to allow re-opening of case to allow defense evidence

State v. Christian Reese, No. 106,703 (Johnson)

Direct appeal (petition for review); DUI

Jay Norton

[Rev/Rmd; Johnson; Aug. 29, 2014]

• Whether amendments to DUI statute apply retroactively

State v. Johnathan McCune, No. 102,883 (Johnson)

Direct appeal; Rape

Michael J. Bartee

[Affd/Vacd; Moritz; July 18, 2014]

• Improper admission of prior bad act evidence
• Denial of right to confront witnesses
• Improper denial of psychological examination of witnesses
• Jessica's Law is vague
• Jessica's Law is Cruel and Unusual Punishment

State v. Chris King, No. 105,995 (Leavenworth)

Direct appeal; Rape

Reid T. Nelson

[Rvd/Rmd; Beier; May 16, 2014]

• Improper admission of prior acquitted conduct
• Failure give unanimity instruction
• Improper exclusion of defense evidence of prior sexual abuse
• Improper denial of challenges for cause of eight potential jurors
• Life sentences disproportionate
• District court improperly believed it could not depart downward

January 31--Friday--a.m.

 

State v. Roger Hollister, No. 106,317 (Atchison)

Direct appeal; Capital murder

Sarah Ellen Johnson

[Affd/Dsmd; per curiam; Aug. 1, 2014]

• Failure to give lesser-included offense instruction for second-degree murder
• Improper capital murder instruction
• Insufficient evidence
• Prosecutorial misconduct

State v. Rasmus Eddy, No. 106,132 (Saline)

Direct appeal; Rape

Meryl Carver-Allmond

[Affirmed; Johnson; March 21, 2014]

• Insufficient evidence of alternative means of rape
• Failure to require psychological exam of witnesses

Conflicts result in ineffective assistance of counsel

Gerald Wells won in State v. Stovall, No. 100,704 (Kan. Nov. 22, 2013) obtaining a new trial in a Shawnee County rape prosecution.  The district court had denied three motions to withdraw. The KSC described the district court's action on the motions:

The district court did not hear the withdrawal motion until the sentencing hearing. Stovall's attorney told the court that her communication with Stovall had deteriorated to the point that, except for 5 minutes before the hearing, the two had not spoken since the jury's verdict 2 months prior. The attorney advised the court that Stovall had asked her to file an ineffective assistance of counsel claim on herself, which she would not do. She asked to withdraw so that the court could appoint Stovall new counsel who could effectively address his new trial and sentencing concerns, i.e., who could mount a legitimate challenge to the effectiveness of trial counsel.

Despite that articulation of a patently obvious reason for the defendant to have conflict-free counsel at that stage of the proceedings, the district court voiced a query as to how trial counsel's withdrawal at such a late stage in the process would serve Stovall's interests. Further, the court recited the non sequitur that it had denied the two prior motions to withdraw because the court did not believe the attorney had shown the conflict "arose [sic] to the level that was so material that it would cause a conflict." Inscrutably, the court also declared that the attorney should have known about and raised her issues much sooner, notwithstanding that the third motion, based on a total breakdown in communication, was filed within a month of the last attorney/client communication.

The KSC held that the district court abused its discretion by failing to consider the merits of the motions:

We have no hesitation in specifically stating that the trial court's failure to appropriately deal with defense counsel's declared conflicts of interest was an abuse of discretion. Moreover, the district court's actions in this case were an abuse of discretion for reasons other than its failure to conduct an in-depth inquiry.

As noted above, an abuse of discretion can occur when the district court is guided by an erroneous legal conclusion. The district court's reliance on KRPC 1.16(c) as a basis for denying defense counsel's motion to withdraw was legally misguided.

The KSC went on to consider whether the case fell into a category of cases that require reversal without a further showing of prejudice:

Here, defense counsel tried to explain the constraints imposed upon her by the conflicts, such as when she told the district court: "I think any time you have to point the finger at another client saying this client didn't do it, this other client did[, there is a conflict]." That dilemma is not difficult to grasp and one has to wonder whether another attorney, who owed no attorney-client duty to Pascha, would have developed a trial defense strategy implicating Pascha. Pointedly, the conflicted attorney did not do so after being forced to try the case.

Defense counsel also advised the court about the problem that was actually caused by the State when it subpoenaed her to essentially testify against Stovall in the Fulton case. As related above, the Court of Appeals described the corrosive effect that circumstance had on the attorney-client relationship. At the hearing on the third motion to withdraw, the district court opined that the subpoena conflict had not materialized, because the defense attorney had not actually testified in the Fulton case. But that observation misses the point. The attorney-client privilege is designed to secure a client's confidence in the secrecy of the communications with his or her attorney during the representation. If a client believes that the State can force his or her attorney to testify against the client, the damage to the free exchange of information between attorney and client has already been done. Moreover, it is no wonder that Stovall suspended all communication with his attorney after the trial, given that his attorney repeatedly stated in open court that she could not advocate solely for him because of duties she owed to others.

As a consequence of the adverse effect on representation created by defense counsel's conflicts of interest, Stovall was effectively denied his Sixth Amendment right to effective assistance of counsel at trial.  

The KSC went on to note that it would have reversed on independent conflicts grounds stemming from a third motion to withdraw as well.

Improper stipulation to details of prior conviction IAC

Stacey L. Schlimmer won in Jaghoori v. State, No. 108,892 (Kan. App. Nov. 1, 2013)(unpublished), affirming Judge Tatum's new trial order in a Johnson County aggravated battery, aggravated assault, and criminal discharge of a firearm prosecution.  After Mr. Jaghoori's convictions were affirmed, he filed a motion pursuant to K.S.A. 60-1507 alleging that his trial attorney was ineffective because she had agreed to admission of information about a prior conviction that would have been otherwise inadmissible. Judge Tatum agreed and order a new trial on all three counts.

The COA held that substantial competent evidence supported the district court's finding that the trial attorney improperly stipulated to admission about details of the prior conviction.  The also state argued that because the jury had been instructed to only use the prior conviction in relation to the criminal discharge count, the district court erred by granting a new trial on all counts.  The COA disagreed:

We are not persuaded by the State's argument. As we previously stated in the first issue, the stipulation clearly fell below an effective standard of counsel on a critical issue. But for this error, there is a reasonable probability that the outcome of Jaghoori's trial would have been more favorable to him. Jaghoori's prior crime clearly had a logical nexus to the crimes with which he was charged. Every count Jaghoori was charged with involved possession or use of a weapon as one of the elements. While the jury was instructed to consider the stipulation only to Count 4, Kansas courts are clear that an unnecessary admission of the name and nature of the prior conviction can only serve to prejudice a jury.

The COA concluded that Judge Tatum's order was not reversible:

It is seldom that a new trial is ordered after an evidentiary hearing on a K.S.A. 60–1507 motion alleging ineffective assistance of counsel. But, this is one of the rare exceptions. We would be doing an injustice, not only to Jaghoori but also to the trial judge, if we did not give deference to the district court who heard all the witnesses at both the trial and at the K.S.A. 60–1507 hearing and reached a logical conclusion utilizing the correct standards to determine ineffective assistance of counsel and resulting prejudice.

[Update: the state filed a PR on December 2, 2013.]

[Further update: the KSC denied the state's PR and the mandate issued on April 2, 2014.]

Can McAdam help with the ACCA?

The Armed Career Criminal Act (ACCA), or 18 U.S.C. § 924(e), sets a fifteen-year mandatory minimum penalty for certain federal firearm defendants who have three previous convictions for a “violent felony or a serious drug offense.”  Thus, the definition of "serious drug offense" can be seriously important to a federal defendant's sentence.

Under 18 U.S.C. § 924(e)(2)(A)(ii), the term “serious drug offense” is defined in relevant part as "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.”  (Emphasis added).

In order to determine whether a prior conviction constitutes a “serious drug offense,” the Supreme Court in McNeill v. United States, 131 S. Ct. 2218, 180 L. Ed. 2d 35 (2011) explained that "[t]he plain text of ACCA requires a federal sentencing court to consult the maximum sentence applicable to a defendant's previous drug offense at the time of his conviction for that offense."  Under this holding, if an applicable prior drug conviction was punishable by ten years or more at the time of the offense, then it would count as a "serious drug offense" and help trigger the ACCA. 


 So how does State v. McAdam fit into all of this?

If you remember State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), you probably see where I'm going with this.  In McAdam, the KSC held that the Kansas severity level 1 drug offense of manufacturing methamphetamine (K.S.A. 65-4159[a] [repealed]) was identical to the severity level 3 drug offense of compounding methamphetamine (K.S.A. 65-4161[a] [repealed]).  277 Kan. at 146-47.  Thus, under the identical offense doctrine, the court held: "we agree with McAdam's contention that 65–4161(a) and 65–4159(a) are identical and thus he can be sentenced only under the lesser penalty provision of 65–4161(a)."  This overlapping language in the statutes was modified by the legislature on May 20, 2004.  See K.S.A. 2005 Supp. 65-4161(a) (removing the word "compounding").

The McAdam holding effectively required any Kansas state manufacturing methamphetamine conviction, committed pre-May 20, 2004, to be sentenced as a Kansas severity level 3 drug offense.  And as the KSC later clarified, the "McAdam rule" was not some new constitutional rule that retroactively applied, but rather it was a sentencing rule that pre-May 20, 2004 drug offenders should have received if the law was applied correctly at the time of their sentencing.  See Bryant v. State, 280 Kan. 2, 10, 118 P.3d 685 (2005).

Application to Federal Sentencing

Looking back at the ACCA and federal sentencing, if a federal defendant is facing application of the fifteen-year mandatory minimum in 18 U.S.C. § 924(e) based on a prior Kansas conviction for manufacturing methamphetamine, you should look at the date of the prior offense.  If it was before May 20, 2004, under the correct Kansas law at the time, the manufacturing offense should have been sentenced as a Kansas severity level 3 drug offense.  And of course, the sentencing range for a Kansas severity level 3 drug offense at that time was far short of the ten-year maximum sentence needed to qualify as "serious drug offense" under 18 U.S.C. § 924(e)(2)(A)(ii).  In contrast, any Kansas severity level 1 drug offense at the time would carry a sentence of at least 10 years imprisonment.

The same type of argument can be made for prior convictions for possession of certain precursors with the intent to manufacture.  See State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005) (holding that the conduct prohibited by K.S.A. 65–7006[a], possessing ephedrine or pseudoephedrine with intent to use the product to manufacture a controlled substance, was identical with the conduct prohibitedby K.S.A. 65–4152[a][3], knowingly possessing drug paraphernalia with intent to use it to manufacture a controlled substance).  See also State v. Snellings, 294 Kan. 149, 273 P.3d 739 (2012) (under identical offense sentencing doctrine, the elements of possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance, a severity level 2 drug felony, are identical to the elements of possession of drug paraphernalia with intent to manufacture a controlled substance, a severity level 4 drug felony).  Thus, under Campbell and Snellings, the identical offense doctrine mandated these severity level 2 drug offenses to be sentenced as severity level 4 drug offenses.  This could help with the ACCA or even with whether a prior drug conviction was "a crime punishable by imprisonment for a term exceeding one year."

So basically, if you get an ACCA case with a prior Kansas state drug offense for any type of manufacturing crime prior to the 2011 recodification, you probably need to look to see if the identical offense doctrine applied to the conviction at the time of the offense.  Even if the doctrine was not applied to the client's case, it is possible that it should have been.  And if the client should have been sentenced under the identical offense doctrine of McAdam or Campbell or Snellings, their offense would not have carried a maximum sentence of ten years.  Thus the prior offense would not qualify as a "serious drug offense" under 18 U.S.C. § 924(e)(2)(A)(ii), and it cannot trigger the fifteen-year mandatory minimum in the ACCA.

A veteran's quest for veterans courts in Kansas

Happy Veterans Day!  Sixty years ago today, Veterans Day was first celebrated in Emporia, Kansas.  At that time, the national holiday was known as Armistice Day, to commemorate the end of World War I.  But the folks in Emporia, particularly shoe cobbler Alvin King, believed that we needed a national holiday to commemorate veterans of all wars, not just those of World War I.  Thus, on November 11, 1953, Emporia celebrated the first Veterans Day.  The national holiday would become official the very next year, after a bill was introduced by Congressman Ed Rees, a native of Emporia, and eventually signed into law by President Dwight D. Eisenhower, another Kansan.  In 2003, Congress passed a resolution recognizing Emporia, Kansas as the founding city of Veterans Day.

Today, Emporia is home to another Kansan wanting to help veterans of foreign wars.  Brandon Flint, a veteran of two tours in Iraq with the U.S. Army, is hoping to bring a veterans court to Emporia.  Notably, twenty-seven different states have a veterans court in at least one jurisdiction.  But Kansas is not one of them.

Mr. Flint's motivation for bringing veterans courts to Kansas stems from his own treatment by the justice system.  Mr. Flint was prosecuted for a felony in Emporia for defending his fiancée from two men.  Despite being located in the founding city of Veterans Day, Mr. Flint believed that the justice system in Emporia operated without regard to the training and issues that he dealt with as a veteran of a foreign war.  Mr. Flint wants his experience to aid other veterans that might face similar circumstances.  And that means he wants to bring veterans courts to Kansas, so other veterans are treated by a justice system that appreciates the special circumstances and treatment requirements for veterans of foreign wars.

The Conviction

In 2008, Brandon Flint was convicted by a Lyon County jury of aggravated assault with a deadly weapon.  The conviction stemmed from Mr. Flint's use of his firearm to defend his fiancée.  The evidence at trial showed that Mr. Flint and his fiancée were leaving an Emporia bar at the same time as two men whom had given them trouble inside the bar.  As they were all leaving the bar, the other men got into an altercation with Mr. Flint's fiancée.  At one point, Mr. Flint's fiancée was on the ground with the two men standing over her, struggling with her.  Mr. Flint immediately went to his car, grabbed his firearm, walked up to the men, and ordered them to get off of his fiancée.  The men quickly complied, but Mr. Flint was later arrested, prosecuted, and convicted of aggravated assault with a deadly weapon.   

Mr. Flint's case presented a clear example of the affirmative defense of "defense of another."  But at his trial, the prosecutor objected to the jury receiving an instruction on this defense, arguing that Mr. Flint used excessive force.  The court agreed and refused to instruct the jury on this defense.  So the jury never got to decide whether Mr. Flint was legally allowed to defend his fiancée, even though that was his entire theory of defense.  Mr. Flint appealed his conviction to the Kansas Court of Appeals.  While the appeal was pending, Mr. Flint was labeled a felon, he had to report to a probation officer for two years, and he had to register as a violent offender under the Kansas Offender Registration Act. 

The Appeal

Brandon Flint appealed his case to the Kansas Court of Appeals, asking for a new trial.  Specifically, he wanted a jury to decide if he was lawfully defending his fiancée when he pointed a gun at the men who had her on the ground.  Even though the case seemed a clear example of defense of another, the COA initially denied his claim, stating that it was controlled by the then-recent opinion in State v. Hendrix, 289 Kan. 859 (2009) (holding that a defendant must use "actual force" to justify a jury instruction on self-defense).  Under the logic of the Hendrix case, if Mr. Flint had shot the men, the jury likely would have received the defense-of-another instruction.  But because he handled the situation without the "use of force," as the term was used in K.S.A. 21–3211, he was not entitled to the defense-of-another instruction.  In the initial opinion from the COA, then Chief Judge Richard Greene wrote separately as follows:

I agree that the outcome here is controlled by State v. Hendrix, 289 Kan. 859, 218 P.3d 40 (2009), but I write separately to note that the factual scenario in this case is very much like the hypothetical scenario depicted by Chief Justice Davis' dissent in Hendrix. The fact that Flint has been deprived of self-defense here demonstrates the wisdom of the Chief Justice Davis' dissent and the urgent need for a legislative fix of K.S.A. 21–3211.

The Legislative Effort

A few days after Mr. Flint initially lost in the COA, the Kansas Legislature held hearings on a bill to fix the use-of-force statute interpreted by the Hendrix decision (2010 H.B. 2432).  The Hendrix opinion was based on the language of the applicable statute, so the Legislature intended to act fast to correct the statute.  Mr. Flint (and myself - as his attorney) went to the Legislature to testify regarding the bill.  We both testified about his case and specifically requested that any "Hendrix fix" be applied retroactively to his case (Randall Hodgkinson also provided similar testimony).

Mr. Flint testified in part as follows:

I'm now a felon because I protected the mother of my child from Mr. Mitchell.  I don't know what would have happened if I hadn't pulled a gun on Mr. Mitchell, but I know that Nicole made it away safely because I did.

About eight years ago, there was a football player, in Emporia, beat to death; three men were charged.  If he had done the same thing I did, he would be alive, but would be a felon like me.  He would have to register every four months as an offender, his driver's license would say "Registered Offender", the same words that appear on the licenses of registered pedophiles and rapists.  He would also have to attend community classes, have psychological evaluations done and attend a variety of meetings.

At my trial, my entire defense was built around "defense of another."  However, the judge threw out the instructions to the jury and I was convicted, because I "stuck by my guns," so to speak, and stated that I believed I had done the right thing.

I served two separate tours in Iraq with the United States Army.  I hauled jet fuel and was shot at with everything from AK-47's to RPG's and rockets.  Roadside bombs hit our convoys constantly.  I went through all of that to help keep our great nation safe, only to find that the same great nation I protected does not allow me to protect myself or my loved ones. 

On Friday, the Court of Appeals affirmed my conviction.  I was told by Mr. Folsom that these proceedings today have a direct bearing on my case.  I hope that a favorable decision will be made and will allow my case to be grandfathered, as it applies here into the laws you are about to change.  Thank you for your time.

After hearing this testimony, the Legislature added retroactive language to the "Hendrix fix" legislation.  The bill passed overwhelmingly.  In other words, the Legislature wanted this new law to apply to Mr. Flint.  And eventually, it did.

The Appeal Ends

At the time the new statute went into effect, Mr. Flint had asked the Kansas Supreme Court to review his case.  The KSC granted his petition for review and remanded the case back to the COA for consideration under the new retroactive self-defense statute (which had corrected the result in the Hendrix case).  On November 10, 2011, the day before Veterans Day, 2011, the COA reversed Mr. Flint's conviction.  At that point, he had been registering as a violent offender for three years.

After the COA's decision, the State filed a petition for review to the KSC, even though the Legislature had listened to Mr. Flint's testimony and agreed that the new statute should have an effect on his case.  In February of 2013, the KSC denied the State's petition for review, and the case was finally remanded to Lyon County District Court for a new trial.  Based on this reversal, the KBI was notified of the reversal and informed of its duty to take Mr. Flint off the offender registry. 

The Retrial

When the case went back to Lyon County, the prosecution decided to forge ahead.  They retried Mr. Flint in an effort to secure the same felony conviction for aggravated assault with a deadly weapon.  Someone in the prosecutor's office even told the KBI to put Mr. Flint back up on the offender registry because the case wasn't over yet (of course, the conviction had been reversed, but the KBI decided to err on the side of caution and put Mr. Flint's picture back on their website as a "non-compliant violent offender"). 

The new jury trial was held in July.  This time, the court ruled that the defense-of-another instruction had to be given in the case.  And of course, the jury found Mr. Flint not guilty.  Rick Meier won the acquittal for Mr. Flint. 

Veterans Court

After five years of trials, appeals, felon status, and offender registration, Mr. Flint finally has been vindicated.  But that is not enough for him.  He is now trying to help establish a veterans court in Kansas (preferably in Emporia).  In his mind, the system that treated him harshly for following his training should not be the status quo.  Instead, there should be a system that recognizes and attempts to address the particularized needs and treatment requirements of veterans. 

Courts in Kansas already have started to enact drug courts in an effort to address the special needs of drug offenders.  Veterans are similarly a unique class of individuals, with special needs, that many believe should be addressed in the criminal justice system.  Brandon Flint, after living it first hand, is one of those people.  And he is hoping that his case can once again spur legislative change.  

How to challenge prior convictions in a DUI case

Michael Holland, II won in State v. Key, No. 104,651 (Kan. Nov. 8, 2013), reversing the COA's dismissal of Key's sentencing appeal in an Ellis County felony DUI case.  The appeal will be "remanded to the Court of Appeals for consideration of the merits of Key's claim that he should have been sentenced for misdemeanor DUI rather than felony DUI."  But the case provided sua sponte insight on the best practice in preserving challenges to prior convictions in DUI cases.

In the opinion, the KSC explained that a defendant can plead guilty or no contest to a DUI charge and still pursue a challenge to the prior convictions at sentencing (and on appeal).  But the better practice in order to challenge the classification of the offense as a felony is to do a bench trial on stipulated facts.  On this issue, the court explained as follows:

A defendant who intends to challenge the validity of a prior misdemeanor DUI as a classifying factor for a DUI felony charge under K.S.A. 8-1567 should challenge the prior misdemeanor at preliminary hearing, consistent with the holding of Seems, 277 Kan. at 305-06, or through a timely motion to dismiss.  See State v. Crank, 262 Kan. 449, 458, 939 P.2d 890 (1997) (challenge to prior conviction relied on by State to increase severity level properly raised at preliminary hearing); State v. Floyd, 218 Kan. 764, 765, 544 P.2d 1380 (1976) (same).  If those efforts are unsuccessful, in order to pursue the argument on classification on appeal —i.e., that the defendant could be convicted only of a misdemeanor and not a felony—the defendant generally must go to trial, even if that trial is conducted only to the bench on stipulated facts.

If the defendant instead enters a guilty or no contest plea and does not file an unsuccessful motion to withdraw it while before the district court, then the jurisdiction of an appellate court will be limited to a review of the sentencing pronounced in the current felony case.  Any challenge to inclusion of a prior misdemeanor in the defendant's criminal history for purposes of sentencing enhancement should be preserved for appeal by an objection on the record at sentencing.  A successful appellate challenge on that ground will not erase the prior conviction; only a successful motion under K.S.A. 60-1507 can do that.  But a successful appellate challenge can lead to vacation of the enhanced felony sentence and resentencing without consideration of the prior, invalid DUI misdemeanor conviction.

The moral of the story - object to prior convictions at the preliminary hearing, or otherwise prior to conviction (e.g., motion to dismiss), do a bench trial on stipulated facts, and then renew any argument at sentencing.  You can still plead guilty to the DUI and challenge the priors at sentencing (and argue for a misdemeanor sentence), but you may lose the ability to challenge the "classification" of the offense as a felony.

Pellet gun is not a "firearm" requiring presumptive prison sentence

Korey Kaul won in State v. Craddick, No. 108,335 (Kan. App. 2013) reversing the sentence in a Douglas County case for attempted aggravated assault.  Here is coverage of the case by the LJ World.  The court described the issue as follows:

Craddick pointed his Ruger Airhawk pellet rifle at his victims and threatened to shoot them if they did not put his dog on the ground. The district court found that Craddick had committed his crimes with a firearm, which triggered a presumptive prison sentence under K.S.A. 2011 Supp. 21-6804(h).  Craddick's pellet rifle was not a firearm under K.S.A. 2011 Supp. 21-5111(m) because rather than propelling projectiles by force of an explosion or combustion, it propels projectiles by force of air or gas.  The district court's erroneous firearm designation requires us to vacate Craddick's sentence and reverse and remand his case for resentencing.

The court relied on the new statutory definition of "firearm" under  K.S.A. 2011 Supp. 21-5111(m), which defines it as "any weapon designed or having the capacity to propel a projectile by force of an explosion or combustion."  This definition is inconsistent with previous case law, which held that "[a] firearm [has the] design or capacity to propel a projectile by force of an explosion, gas, or other combustion."  State v. Davis, 227 Kan. 174, 177, 605 P.2d 572 (1980).  This case law definition had led the KSC to hold that a pellet gun was a "firearm" for purposes of a special sentencing rule because the pellet gun was "capable of and was designed to 'propel a projectile by force of . . . gas . . . .'"  State v. Fowler, 238 Kan. 213, 217, 708 P.2d 539 (1985).  The holding in Craddick suggests that district courts should no longer find that air rifles or pellet guns require a presumptive prison sentence under K.S.A. 21-6804(h).

The case could have a significant impact in aggravated assault prosecutions, where a pellet gun is often used in the crime.  It will not affect the conviction, but it will keep the special sentencing rule in K.S.A. 21-6804(h) from making these severity level 7 crimes (which are presumptive probation for criminal history C and lower) from becoming presumptive prison offenses when an a pellet gun or bb gun was used.

[Update: the state did not file a PR and the mandate issued on December 5, 2013.]

December 2013 KSC Docket

Here are the criminal cases on the KSC docket for December 9-12, 2013. 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 (here) if you would like to listen in on any of these arguments.

 

December 9--Monday--a.m.

 

State v. Matthew Astorga, No. 103,083 (Leavenworth)

Remand from United States Supreme Court

Randall L. Hodgkinson

[Affd/Rvd/Vacd; Mortiz; May 23, 2014]

• Hard-50 sentence violates Alleyne

State v. Robert Stevenson, No. 104,115 (Sedgwick)

Direct appeal (petition for review); Possession

Rick Kittel

[Revd/Rmd; Johnson; March 28, 2014]

• Failure to suppress evidence

State v. Sharon Huddleston, No. 106,273 (Sedgwick)

Direct appeal; First-degree murder

Meryl Carver-Allmond

[Affirmed; Luckert; Feburary 14, 2014]

• Prosecutorial misconduct
• Improper admission of jailhouse letters

State v. Jimmy Murdock, No. 104,533 (Shawnee)

Sentencing appeal (petition for review)

Ryan Eddinger (brief); Patrick H. Dunn (argue)

[Rvd/Rmd; Biles; May 2, 2014]

• Improper scoring of priors as person felonies

December 10--Tuesday--a.m.

State v. Kelvin Gibson, No. 106,646 (Wyandotte)

Direct appeal; First-degree murder

Michael J. Nichols

[Affirmed; Biles; April 18, 2014]

• Denial of motion to suppress statements
• Failure to allow defendant to testify at suppression hearing

State v. Juan Lopez, No. 105,601 (Wyandotte)

Direct appeal; First-degree murder

Michael G. Highland

[Affirmed; Johnson; May 9, 2014]

• Insufficient evidence
• Improper use of prior acquittal for sentencing
• Improper weighing of aggravating and mitigating factors for hard-50

State v. Delbert McBroom, No. 106,689 (Osborne)

Direct appeal; First-degree murder

Gerald E. Wells

[Affirmed; Rosen; June 6, 2014]

• Failure to change venue
• Insufficient evidence

State v. Robert Clark, No. 105,613 (Shawnee)

Direct appeal; Agg indecent liberties

Rachel L. Pickering

[Affd/Vacd/Rmd; Luckert; Feburary 7, 2014]

• Insufficient evidence of intent

State v. Eldier Molina, No. 105,228 (Wyandotte)

Direct appeal; First-degree murder

Michelle A. Davis

[Affd/Vacd; Moritz; May 30, 2014]

• Failure to give limiting instruction (bad acts)
• Failure to give lesser-included offense on voluntary manslaughter
• Improper consecutive sentences
• Improper weighing of aggravating and mitigating factors for hard-50

December 11--Wednesday--a.m.

 

State v. Michael Hensley, No. 102,421 (Seward)

Direct appeal (petition for review); Criminal restraint

Randall L. Hodgkinson

[Affirmed; Johnson; April 25, 2014]

• Whether criminal restraint is a lesser of kidnapping

State v. Gary Morningstar, No. 103,433 (Sumner)

Resentencing appeal (petition for review)

Elaine M. Esparza

[Affimed; Biles; July 18, 2014]

• Improper resentence to consecutive sentences on remand
• Whether agg battery is a lesser included offense of child abuse

Continued detention not a voluntary encounter

Michael C. Hayes won in State v. Kantor, No. 109,057 (Kan. App. Sept. 20, 2013)(unpublished), affirming Judge Nafziger's suppression order in a Jefferson drug prosecution.  Evidence was obtained after officers stopped and detained a driver.  The COA majority agreed with Judge Nafziger (1) that it was a detention and not a voluntary encounter, (2) that the officers improperly extended the stop, and (3) that officers lacked reasonable suspicion or voluntary consent for the extended detention:

Here, Clark returned Kantor's driver's license and insurance card before they exited the patrol car. Clark lawfully extended the traffic stop by asking Kantor to stand 10 feet in front of his vehicle during the interference with law enforcement investigation. Clark removed Martynowicz from Kantor's vehicle before approaching Kantor, who was standing alone in a ditch beside a rural road at nighttime. At that point, Clark had no reasonable suspicion of criminal activity as to Kantor. Clark was walking toward and shining his flashlight on Kantor when he told him he was “not in any trouble” and was “free to go.” In the same breath, and without any physical disengagement, Clark asked Kantor if there was “anything illegal in the car” and if he could “search it real fast.” Clark was blocking Kantor's path to his vehicle when he asked these questions. Finally, Clark was not the only officer present and the other officer's emergency lights were flashing.

These factors establish that the encounter was an extension of the seizure and Kantor's consent was involuntarily given. The strongest factor is Clark's complete failure to temporally or physically disengage from Kantor. A reasonable person would not have felt free to disregard Clark's questions, get in his or her car, and drive away.

[Update: the state filed a PR on October 21, 2013.]

[Further update: the KSC denied the state's PR and the mandate issued on December 30, 2013.]

New Kansas Federal Defender Blog

The Federal Public Defender for the District of Kansas has launched a new blog, available at  http://kansasfpd.blogspot.com/ .  According to the blog's first post, the "contributors will include Melody Evans, the new Federal Public defender for Kansas, the erudite if wordy Tom Bartee, Kirk Redmond, Tim Henry, Sandy Schnack, and all the guest bloggers we can rope into contributing." 

The blog's aim will be "to present an active discussion of issues including the sentencing guidelines, substantive criminal law, evidence, the Bureau of Prisons, and developing intersections between technology and the law, with perhaps a dash of neuroscience thrown in."  Similar to the old blog, it should be a helpful resource for anyone wanting to stay up to date on federal criminal defense issues in the district. 

Illegal traffic stop requires suppression of statements

Michael J. Bartee won in State v. Jefferson, No. 98,742 (Kan. Sept. 6, 2013) obtaining a new trial in a Wyandotte County felony murder prosecution.  The KSC held that officer had illegally stopped Mr. Jefferson's vehicle and that resulting statements were fruit of the poisonous tree.  First, the KSC held that, while officer did know some facts about Mr. Jefferson, the officers did not have probable cause to believe that the car had evidence of a homicide:

Thus, although Jefferson was a suspect in Jackson's shooting at the time the detectives seized his vehicle, there is simply no evidence in the record linking the shooting to Jefferson's vehicle. In fact, the evidence contradicts such a link. Detectives had recovered the van used in the shooting and had found no weapons in that vehicle. Moreover, the shooting occurred more than a month before detectives seized Jefferson's vehicle, making any potential link between Jefferson's vehicle and the shooting even more tenuous. Additionally, the detectives acted inconsistently with their later claim of probable cause when they went to Jefferson's apartment—not to search his vehicle—but only to talk with Jefferson. And finally, the detectives allowed Jefferson's car to remain unattended, with keys in the ignition and the engine running, while they chased Jefferson. The officers simply did not act in a manner indicating a fair probability that the vehicle contained contraband or evidence of the homicide.

Because Mr. Jefferson was illegally detained, the state had to prove that the statements obtained were sufficiently attenuated from the illegal conduct.  The KSC held that

the detectives exploited their illegal seizure of Jefferson's car to obtain his incriminating statements. And the State has failed to establish under the totality of the circumstances that Jefferson's statements are sufficiently attenuated from the preceding illegal seizure.

The KSC did hold that sufficient evidence (including the illegally obtained evidence) supported the convictions and therefore remanded for a new trial without the incriminating statements.  Justice Beier wrote a concurring opinion noting that there is a colorable argument that such a sufficiency analysis should not include evidence obtained in violation of the constitution:

there is at least a colorable argument that [Lockhart v. Nelson, 488 U.S. 33, 41 (1988)] should be distinguished when exclusion arises from constitutional error. There is also a colorable argument that Kansas does or should do more to ensure that a constitutional right is not cheapened by allowing retrial when the evidence admitted in the original trial minus the portion that should have been excluded would not have proved the State's case. Virginia has adopted such an approach.

So practitioners that are presenting suppression and sufficiency issues should consider arguing regarding the application of Lockhart in cases involving constitutional violations.

October 2013 KSC Docket

Here are the criminal cases on the KSC docket for October 21-24, 2013. 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 if you would like to listen in on any of these arguments.

October 21--Monday--a.m.

State v. Michael Maestas, No. 106,214 (Stevens)
Direct appeal; First-degree murder
Christina M. Kerls
[Affirmed; Biles; January 24, 2014]

• Prosecutorial misconduct
• Failure to give lesser included offense for reckless second-degree murder
• Failure to allow full cross-examination
• Failure to find defendant mentally retarded
• Error in not ordering defendant to serve sentence in DOC

State v. James Simpson, No. 105,182 (Jefferson)

State appeal

John R. Kurth

[Affirmed, per curiam, June 27, 2014]

• Witness incompetency

October 22, 2013--Tuesday--a.m.

State v. Dustin B. Hilt, No. 105,057 (Johnson)

Direct appeal; First-degree murder

Joanna Labastida

[Affd/Vacd/Rmd; Beier; April 18, 2014]

• Failure to supplement aiding and abetting instruction
• Improper dismissal of juror
• Improper admission of prejudicial evidence
• Improper testimony regarding spatter experiment
• Failure to give voluntary intoxication instruction
• Failure to give lesser included offense for voluntary manslaughter
• Admission of gruesome photographs
• Prosecutorial misconduct
• Hard-50 sentence unconstitutional

State v. DeWhite Cameron, 105,828 (Sedgwick)

Direct appeal; Felony murder

Randall L. Hodgkinson

[Affirmed; Rosen; July 25, 2014]

• Failure to give lesser included offense for involuntary manslaughter
• Failure to give lesser for reckless agg battery
• Improper admission of out-of-court statements when not available for cross-examination
• Improper instruction directing jury to determine whether defendant not guilty
• No evidence that death occurred during commission of child abuse
• Prosecutorial misconduct

State v. Thomas Remmert, No. 105,091 (Butler)

Direct appeal; Agg criminal sodomy

Joanna Labastida (brief), Korey Kaul (argue)

[Affirmed; Rosen; January 17, 2014]

• Improper admission of prior bad act evidence
• Insufficient evidence
• Failure to grant downward departure

State v. Francis Smith, No. 104,245 (Bourbon)

Direct appeal; Agg indecent liberties with a child

Meryl Carver-Allmond

[Affd/Vacd; Biles; June 27, 2014]

• Improper admission of prior bad act evidence
• Improper admission of pornography evidence
• Improper instruction that defendant not guilty "until" proved guilty

State v. Terrence Kelly, No. 105,934 (Johnson)

Sentencing appeal

Carl Folsom, III

[Affirmed; Biles; February 21, 2014]

• Denial of motion to withdraw plea
• Improper counting of priors used to certify for adult prosecution

October 23--Wednesday--a.m.

State v. Ryan Dull, No. 105,115 (Sedgwick)

Direct appeal; Agg criminal sodomy/rape

David Phillip Leon

[Affirmed; Beier; January 31, 2014]

• Prosecutorial misconduct
• Improper admission of prejudicial evidence
• Ineffective assistance of counsel
• Failure to grant downward departure
• Insufficient evidence

State v. Kedrin Littlejohn, No. 105,872 (Sedgwick)

Direct appeal; Felony murder

Carl Maughan

[Affirmed; Rosen; January 17, 2014]

• Failure to give lesser included offense instruction
• Improper alternative means instruction
• Improper aiding and abetting instruction
• Failure to give compulsion instruction
• Failure to grant motion to suppress
• Insufficient evidence

State v. Marlin Williams, No. 102,036 (Sedgwick)

Direct appeal (petition for review); Agg trafficking

Michelle A. Davis

[Affirmed; Luckert; June 27, 2014]

• Agg trafficking statute is overbroad
• Agg trafficking statute is vague
• Prosecutorial misconduct
• Failure to give lesser sentence for identical offense of promoting prostitution
• Failure to sentence for more specific offense of promoting prostitution

State v. Todd Schumacher, 106,103 (Wichita)

Direct appeal; First-degree murder

William K. Rork

[Affirmed; Mortiz; March 7, 2014]

• Insufficient evidence
• Prosecutorial misconduct

October 24--Thursday--a.m.

State v. Tony Lewis, No. 106,093 (Riley)

Direct appeal; Rape/Agg kidnapping

Rachel L. Pickering

[Affd/Vacd; June 13, 2014]

• Improper response to jury question regarding hung jury
• Prosecutorial misconduct
• Failure to suppress statements
• Failure to suppress photo ID
• Improper alternative means rape instruction
• Improper finding of agg habitual sex offender

State v. Tyjuna Sharkey, No. 106,150 (Sedgwick)

Direct appeal; Agg indecent liberties

Michelle A. Davis

[Affd/Rvd/Rmd; Luckert; April 11, 2014]

• Ineffective assistance of counsel
• Improper alternative means agg indecent liberties instruction

Justice Moritz nominated for Tenth Circuit

President Obama has nominated Justice Nancy Moritz to sit on the U.S. Court of Appeals for the Tenth Circuit.  According to an AP article, the nomination has already earned praise from Senator Jerry Moran.  Justice Moritz will fill the seat vacated by Judge Deanell Tacha, who retired in 2011 to become dean of Pepperdine University School of Law.

Justice Moritz has been on the Kansas Supreme Court for the last two and a half years, after serving for seven years on the Kansas Court of Appeals.  Before that, she was the appellate coordinator for the U.S. Attorney's office in Kansas.  In praising the selection, Senator Moran noted that Justice Moritz's professional credentials and her "commitment to the Rule of Law" are "well documented."  Frankly, I could not agree more.

I have appeared in front of Justice Moritz many times when she was on the Court of Appeals and on the Supreme Court.  I also served briefly with her on the Board of Court Reporter Examiners.  In every situation, she was always extremely prepared, active, and keenly aware of the most important issues at hand.  Although her departure will be a loss for the Kansas Supreme Court, she will represent Kansas extremely well on the Tenth Circuit.

Here is a link to the White House press release regarding the nomination.

Due process required trial judge to recuse

Reid Nelson won in State v. Sawyer, No. 101,624 (Kan. July 26, 2013), reversing a Wyandotte County conviction for criminal threat.  The KSC held that the trial judge was required to recuse himself from the case and that the judge's failure to do so violated Sawyer's due process rights under the U.S. Constitution.

The KSC explained the procedural facts as follows:

Judge McNally has presided over three cases involving Sawyer. One led to a bench trial on assault and battery, from which the judge recused. One led to a jury trial on lewd and lascivious behavior; the judge did not recuse in that case. The last of the three cases was the prosecution underlying this appeal.

In the district court, Sawyer filed a motion asking Judge McNally to recuse. Although he had recused in a previous case involving Sawyer, Judge McNally did not recuse from this case, giving the following rationale:

"Well, of course, the difference — the main difference between this case and that case is that in that one the defendant had waived a jury trial and it was a situation where I would be sitting as the finder of fact. And given some of the past dealings between myself and Mr. Sawyer, I though t that would probably be a problem. I don't believe that that's the case here because a jury is going to determine his guilt or innocence." 

 The chief judge also denied Sawyer's request. On appeal to the COA, Judge McNally's rationale, regarding the difference between a trial judge's role in a bench trial and a trial judge 's role in a jury trial, was upheld. After granting Sawyer's petition for review, the KSC disagreed, and it reversed his conviction for criminal threat.

 

The KSC explained that there are three bases for the recusal of a judge in Kansas. To paraphrase, those bases are:

1. The list of statutory factors that may be alleged in an affidavit of the type filed by Sawyer in this case. See K.S.A. 20-311d(c)(1)-(5).

2. The Kansas Code of Judicial Conduct. See Kansas Supreme Court Rule 601 B, Canon 2; Supreme Court Rule 2.11(A) ("A judge shall disqualify himself or her self in any proceeding in which the judge's impartiality might reasonably be questioned.")

3. The Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).

The KSC noted that the first step in seeking a recusal is to follow the statutory framework: "Under K.S.A. 20-311d, a party must first file a motion for change of judge; if that motion is denied, then the party must immediately file a legally sufficient affidavit alleging grounds set forth in the statute." But the court held that Sawyer's affidavit was legally insufficient to justify recusal, so it moved on to the due process analysis.  

 

The KSC cited the famous Caperton case and explained Judge McNally's duty to recuse:

He had already judged himself unable to rule impartially in the earlier prosecution of Sawyer for assault and battery. In Caperton, the Court recognized that a mere heightened risk of actual bias could lead to unacceptable peril to due process. Certainly that is true when bias has previously been admitted and inadequately explained away.

The KSC then explained why reversal of the conviction was necessary:

Reversal and remand are required here. Judge McNally had previously chosen to recuse in Sawyer's assault and battery bench trial; the judge's intemperate demeanor in Sawyer's intervening jury trial for lewd and lascivious behavior drew a stern admonition from the Court of Appeals; and Judge McNally's mere observation that this case involved a jury trial rather than a bench trial did nothing to ameliorate any earlier need for recusal. Trial of this case followed less than 18 months after the lewd and lascivious jury trial, which, in turn, came only 2 months after the assault and battery prosecution in which Judge McNally's own assessment of his impartiality led to recusal. Our experience teaches us that the probability of actual bias in this case was “too high to be tolerable” under the Due Process Clause. The proceeding sank beneath the “ ‘constitutional floor.’ “

The KSC reversed Sawyer's conviction for criminal threat and remanded for a new trial with a different judge. The court also specifically rejected "Judge McNally's and the Court of Appeals' reliance here on the fact that this case was tried to a jury rather than to the bench. Although the judge in a criminal jury trial does not find facts, he or she still must make many rulings that affect the defendant's ability to obtain a fair trial."

Appellate court should not act as jury

Samuel Schirer and Ryan Eddigner won in State v. Brooks, No. 103,774 (Kan. July 26, 2013), obtaining a new trial in a Crawford County rape prosecution.  The COA had already found that Mr. Brooks had received ineffective assistance of counsel due to counsel's failure to request a continuance to obtain evidence to rebut the complaining witness' testimony that he had a scar on his penis.  But the COA had held that Mr. Brooks had failed to show prejudice and affirmed.

The KSC disagreed, noting that the COA panel appeared to have independently assessed witness credibility and noting that "[i]nterestingly, the panel's credibility calculus did not include any reference to the jury's acquittal of Brooks on five of the seven counts upon which S.C. testified nor any rumination upon what inference might be drawn therefrom about the jury's view of S.C.'s credibility."

Ultimately, the KSC determined that the panel had gone too far in evaluating the strength of the state's case rather than apply the correct test, which asks if there is a reasonable probability of a different outcome:

Given the panel's stated reasons for finding no prejudice, we discern that it ran afoul of the oft-stated rule that an appellate court will not determine the credibility of witnesses or weigh conflicting evidence. "The jury is charged with the responsibility of weighing the evidence and determining witness credibility. Appellate courts do not reweigh the evidence or decide which witnesses are credible." State v. Corbett, 281 Kan. 294, 310, 130 P.3d 1179 (2006). 

The relative importance of testimony about the presence or absence of a penile scar was something the jury was supposed to decide. The panel's queries about the scar evidence, e.g., whether such a scar is permanent, went to the weight to be attached to that evidence and invaded the province of the jury. Likewise, the panel was figuratively on jury duty when it assessed the credibility of the victim. Appellate courts should "let the jury decide whether to believe a witness." State v. Leaper, 291 Kan. 89, 108, 238 P.3d 266 (2010) (Johnson, J., concurring). Certainly, appellate courts should not excuse constitutional violations based upon a cold record assessment of a witness' believability.

Applying the proper test, the KSC held that, but for defense counsel's deficient performance, Mr. Brooks had shown a reasonable probability that the outcome of the case would have been different.  As a result, the KSC reversed and remanded for a new trial.

Hunt for evidence unrelated to detention not justified

Carl F.A. Maughan won in State v. Krehbiel, No. 108,782 (Kan. App. July 5, 2013)(unpublished), affirming Judge Rose's suppression order in a Reno County drug prosecution.  During execution of a search warrant, officers detained and searched Ms. Krehbiel.  The COA agreed with Judge Rose that the search of Ms. Krehbiel's person was unjustified:

Here, the stated purpose by Detective Skomal for detaining Krehbiel was for officer safety. She was not a subject of the search warrant and had done nothing while being detained to justify a further search of her person beyond the pat-down, which was done twice to ensure no weapons were on her person. After no weapons were found on her, without more, Krehbiel should have been free to go once the search of the residence had been completed. There is simply no evidence in the record to support a probable cause finding to justify searching Krehbiel's pockets. Instead, she was subjected to a search that “could serve no purpose except to open up a hunt for evidence unrelated to ... [Krehbiel's] detention.”

The COA also agreed that the state did not prove that Ms. Krehbiel voluntarily consented:

We hold the detective could not have obtained a voluntary consent considering the circumstances surrounding the search of Krehbiel's pockets: (1) She was not permitted to leave the residence until officers checked to see if she had an outstanding warrant, (2) two officers conducted a pat-down search of her outer clothing for weapons, (3) she was handcuffed during the pat-down and subsequent search of her pockets, (4) she did not exhibit any unusual behavior, and (5) the search took place in a small room where multiple officers were present. A reasonable person would not have felt free to decline the detective's request.

[Update: the state did not file a PR and the mandate issued on August 8, 2013.]

Time to talk about unanimity? Even in Kansas?

I was reviewing our recent blog post--prompted by Sentencing Law and Policy's suggestion that Descamps v. U.S., No. 11-9540 (U.S. June 20, 2013) may be one of the most important criminal procedure cases of the last term--when I noted a little part that I had overlooked before.  When discussing the Sixth Amendment implications of the modified categorical approach, the SCOTUS described the Jury Trial Clause as follows :

The Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt.  (emphasis added)

This quotation does not qualify the unanimity requirement to federal cases (although Descamps is obviously a federal case and any unanimity discussion is dicta).

Non-unanimous verdicts in state criminal cases have been upheld by the SCOTUS, although the rationale has never garnered a majority of the Court.  But, as commentators like Eugene Volokh have noted  (here), the basis for allowing non-unanimous jury verdicts in state court (partial incorporation) is pretty shaky--especially after the McDonald case.  So litigators have been trying to get unanimity cases before the SCOTUS, as recently as this last term.  SCOTUSblog named Miller v. Louisiana,  No. 12-162, raising that very issue.  The cert petition in Miller was denied on February 19, 2013, but this language in Descamps should embolden Jury Trial Clause litigators.

So what does this have to do with Kansas you ask?  After all, we're not Louisiana or Oregon (states that allow non-unanimous verdicts).  Because we have a statutory right to a unanimous verdict, these issues don't come up, right?

Actually, a very recent case at the KSC turned on whether there is a federal constitutional right to a unanimous verdict.  In State v. Cheffen, No. 105,384 (June 21, 2013), the KSC held that it would not reach a claim regarding failure to poll a jury for the first time on appeal because there is no federal right to a unanimous verdict:

Cheffen instead claims we should consider his jury polling challenge for the first time on appeal because it involves a fundamental right to a unanimous jury verdict. This exception, however, is inapplicable. The right to a unanimous jury verdict is not constitutional—it is statutory.

Similarly, whether the Sixth Amendment imposes a unanimity requirement on states is also important when dealing with requested or unrequested unanimity instructions in multiple acts cases with regard to the harmless error test that might be applied.

Juvenile misdemeanors decay and cannot convert

Janine Cox won in State v. Smith, 108,475 (Kan. App. June 21, 2013)(unpublished) affirming Judge Sundby's sentencing classification in a Leavenworth County criminal threat prosecution.  Judge Sundby found that two juvenile misdemeanor adjudications had decayed and therefore could not convert to a person felony.  The COA agreed that the conversion statute did not change the nature of the predicate offenses and, therefore, they still decayed:

After examining the statutory language used, we are guided by two important and common words in both of the statutes. The first is the word “offense” in K.S.A.2011 Supp. 21–6810(d)(3)(B) and (d)(4). In both of these subsections, the term “offense” is used when discussing whether a juvenile adjudication decays or not. Black's Law Dictionary defines “offense” as a violation of the law. Black's Law Dictionary 1186 (9th ed.2009). “The terms ‘crime,’ ‘offense,’ and ‘criminal offense’ are all said to be synonymous, and ordinarily used interchangeably.” 22 C.J.S., Criminal Law § 3. This suggests that the legislature was referring to the crime itself and not what the crime was later classified as for criminal history purposes.

The second important word is “rated” in K.S.A.2011 Supp. 21–6811(a). To rate an item is to give it a proportional or relative value. See Black's Law Dictionary 1375 (9th ed.2009). This term suggests that three juvenile adjudications are merely given the proportional value of one person felony adjudication for sentencing purposes. This statute does not change the underlying nature of the original offenses and their subsequent adjudications. In essence, K.S.A.2011 Supp. 21–6811 creates a formula the courts use to calculate a defendant's criminal history score and does not change the nature of any prior offenses. Thus, because the nature of the prior offense never changes, and because K .S.A.2011 Supp. 21–6810 looks to the prior offense to determine whether an adjudication decays, when Smith committed this crime after he turned 25, his prior misdemeanor juvenile adjudications decayed under K.S.A.2011 Supp. 21–6810(d)(4)(C) and cannot be used in the calculation of his criminal history score. It is irrelevant that the misdemeanor juvenile adjudications have, at some prior time, been converted to person felony adjudications for sentencing purposes under K.S.A.2011 Supp. 21–6811(a).

This may have some application with determining whether pre-1993 adjudications decay, since there were no person felonies before 1993.

[Update: the state did not file a PR and the mandate issued on July 25, 2013.]

Proof about prior convictions

We have been spending a lot of time focusing on the recent Alleyne decision and its ramifications. But, as Professor Douglas Berman aptly noted (here), the SCOTUS did decide another case with potential Apprendi ramifications at the end of its term: Descamps v U.S., No. 11-9540 (U.S. June 20, 2013). On first review, it looked like another Armed Career Criminal Act case, which does not tend to pique my Kansas state practice interest. But here is why it may be important:

A long time ago (after Apprendi) we argued that, although Apprendi left a "prior conviction exception," that exception should be limited to the fact of the prior conviction, not other facts proved by extrinsic evidence about the prior conviction.

A common example of this is proof of the prior/nonperson nature of pre-1993 burglary convictions in Kansas. Before 1993, it didn't matter whether a burglary was of a residence or just some other building. After 1993, it makes a big difference in criminal history (burglary of a residence is a person felony, which is much worse for criminal history purposes). So how do we count pre-1993 convictions today? The statute says the judge looks back at the surrounding facts of the prior burglary-if it was of a residence classify it as a person felony. The problem, is that this finding requires determination of facts about the prior conviction, not just the fact of the prior conviction. Often times court services officers simply brought in charging documents specified burglary of a "home" or other extrinsic evidence But that was merely surplusage at the time--it was not a well-pleaded fact.

We raised this after Apprendi with no success in many cases and some have continued to raise it without success. But look at this language from Descamps discussing how the federal court would classify a prior California burglary conviction under the ACCA at page 14 of the majority opinion:

Similarly, consider (though Aguila-Montes did not) the categorical approach’s Sixth Amendment underpinnings. We have held that “[o]ther than the fact of a prior convic­tion, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U. S. 466, 490 (2000). Under ACCA, the court’s finding of a predicate offense indisputably increases the maximum penalty. Accordingly, that finding would(at the least) raise serious Sixth Amendment concerns if it went beyond merely identifying a prior conviction. Those concerns, we recognized in Shepard, counsel against allow­ing a sentencing court to “make a disputed” determination “about what the defendant and state judge must haveunderstood as the factual basis of the prior plea,” or what the jury in a prior trial must have accepted as the theory of the crime. 544 U. S., at 25 (plurality opinion); see id., at 28 (THOMAS, J., concurring in part and concurring in judgment) (stating that such a finding would “giv[e] rise to constitutional error, not doubt”). Hence our insistence on the categorical approach.

Yet again, the Ninth Circuit’s ruling flouts our reasoning—here, by extending judicial factfinding beyond the recog­nition of a prior conviction. Our modified categorical approach merely assists the sentencing court in identify­ing the defendant’s crime of conviction, as we have held the Sixth Amendment permits. But the Ninth Circuit’s reworking authorizes the court to try to discern what a trial showed, or a plea proceeding revealed, about the defendant’s underlying conduct. See Aguila-Montes, 655 F. 3d, at 937. And there’s the constitutional rub. The Sixth Amendment contemplates that a jury—not a sen­tencing court—will find such facts, unanimously and beyond a reasonable doubt. And the only facts the court can be sure the jury so found are those constituting ele­ments of the offense—as distinct from amplifying but legally extraneous circumstances. See, e.g., Richardson v. United States, 526 U. S. 813, 817 (1999). Similarly, as Shepard indicated, when a defendant pleads guilty to a crime, he waives his right to a jury determination of only that offense’s elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment. See 544 U. S., at 24–26 (plurality opinion). So when the District Court here en­hanced Descamps’ sentence, based on his supposed acqui­escence to a prosecutorial statement (that he “broke and entered”) irrelevant to the crime charged, the court did just what we have said it cannot: rely on its own finding about a non-elemental fact to increase a defendant’s max­imum sentence.

This seems right on point. If a judge has to look beyond the statute to figure out something about a prior conviction, Apprendi applies.

So I think you should be object to any pre-1993 burglary conviction being scored as a person felony. Because there is no constitutional mechanism to allow juries to make these findings, all pre-1993 prior burglary convictions should be scored as nonperson.

This is just one example. There are probably others. Classification of out of state convictions (including whether out of state DUI convictions are equivalent to Kansas DUI convictions)? Predicate offenses under many statutes? Whether a prior conviction involved sexual motivation? Basically, any time the judge is finding facts about a prior conviction, not just the fact of the prior conviction, you could (and should) argue that Apprendi applies.