December 2018 KSC Docket

Here are the criminal cases on the KSC docket for December 10-14, 2018. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live at the appellate court website and archived (here) if you would like to watch any of these arguments.

December 10--Monday--a.m.

State v. Scot Bacon, No. 114,951 (Sedgwick)

Direct appeal (petition for review); Commercial sexual exploitation

Cooper G. Overstreet

[Affirmed; Stegall; June 28, 2019]

• Conflict of interest with appointed attorney

State v. Anthony Smith, No. 113,828 (Sedgwick)

Sentencing appeal (petition for review)

Angela Michelle Davidson

[Affirmed; per curiam; May 31, 2019]

• Failure to award jail-time credit

Terral Breedlove v. State, No. 115,401 (Sedgwick)

K.S.A. 60-1507 appeal (petition for review)

Kristen B. Patty

[Affirmed/Reversed; Johnson; July 12, 2019]

• Improper adoption of state's response as finding of fact and conclusions of law
• Denial of appointment of counsel for hearing
• Ineffective assistance of counsel
• Improper imposition of filing fee

December 11--Tuesday--a.m.

State v. Dewayne Hambright, No. 115,259 (Sedgwick)

Sentencing appeal (petition for review)

Clayton J. Perkins

[Reversed/remanded; Johnson; August 23, 2019]

• Improper extension of probation period

State v. Roy Samuel, No. 116,423 (Wyandotte)

Sentencing appeal

Peter Maharry

[Affirmed; Biles; January 11, 2019]

• Life sentence for juvenile is Cruel and Unusual Punishment

State v. Elgin Robinson, No. 116,650 (Sedgwick)

Post-conviction motion appeal

Kristen B. Patty

[Affirmed; Rosen; January 11, 2019]

• Improper denial of pro se motion to compel discovery

December 12--Wednesday--a.m.

State v. Jack Lapointe, No. 113,580 (Johnson)

DNA testing appeal

Richard Ney

[Affirmed/Sustained; Biles; February 15, 2019]

• Improper denial new trial upon DNA testing
• Whether movant was entitled to DNA testing

State v. Fran Andrade-Reyes, No. 115,044 (Johnson)

Direct appeal (petition for review); Possession

Randall L. Hodgkinson

[Reversed/remanded; per curiam; June 7, 2019]

• Fourth Amendment violation (not a voluntary encounter and no reasonable suspicion)

December 13--Thursday--a.m.

State v. Howard Barrett, No. 113,767 (Riley)

Direct appeal (petition for review); Second-degree murder

Michelle A. Davis

[Reversed/remanded; Stegall; June 7, 2019]

• Failure to give lesser-included offense instruction

State v. James Qualls, No. 115,648 (Shawnee)

Direct appeal; First-degree premeditated murder

Kasper C. Schirer

[Reversed/remanded; Rosen; April 19, 2019]

• Failure to give self-defense instruction

December 14--Friday--a.m.

State v. Curtis Ayers, No. 117,654

Sentencing appeal 

Meryl Carver-Allmond

[Affirmed/Vacated; Beier; January 11, 2019]

• BIDS fee
• Improper imposition of consecutive grid sentences to off-grid sentence

State v. Terrance Sims, No. 114,959 (Wyandotte)

Direct appeal (petition for review); Failure to register

Ryan Eddinger

[Remanded; Luckert; March 8, 2019]

• KORA's fee requirement is unconstitutional

Discharge from DOC prevents further modification of postrelease

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

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

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

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

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

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

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

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

No evidence of planned search to support inevitable discovery

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

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

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

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

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

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

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