Silence regarding postrelease at revocation can be legal modification

Clayton J. Perkins won in State v. Jones, No. 118,268 (Kan. App. November 30, 2018), vacating her postrelease supervision period in a Reno County failure to register prosecution. When Ms. Jones was originally sentenced, the district court imposed a 24-month postrelease supervision period and granted probation. A couple years later, the district court revoked Ms. Jones' probation. At the revocation hearing, the district court modified the previously imposed prison sentences to run concurrently instead of consecutively. The district court did not pronounce any postrelease supervision period at the revocation hearing. Notwithstanding that silence, the journal entry from probation revocation indicated that Ms. Jones had to serve 24 months on postrelease supervision. Ms. Jones moved to correct that provision, but the district court denied the motion.

On appeal, the state argued that the district court's silence at the revocation hearing regarding postrelease supervision should not be construed as a modification of the original postrelease supervision period. In particular the state cited K.S.A. 21-6804(e)(2)(C) that provides that "[f]ailure to pronounce the period of post release supervision shall not negate the existence of such period."  After reviewing several KSC cases related to the district court's power upon revocation (blogged about here and here), the COA held that other statutory provisions authorizing "any lesser sentence" upon revocation controlled:

Jones argues that the district court's silence on the period of postrelease supervision at her probation revocation hearing constituted a modification of the postrelease term. Based on McKnight, Sandoval, and Roth, we agree with Jones' claim. The district court modified Jones' sentence at the probation revocation hearing and sentenced her anew. That sentence did not include a period of postrelease supervision. Although the district court may not have intended to vacate Jones' postrelease supervision term upon revoking her probation, the court was authorized to do so and the new lawful sentence was effective when pronounced from the bench. Thus, the district court erred when it later included a 24-month postrelease supervision term in the journal entry. 

As a result, the COA vacated the 24-month post-release period and remanded with directions to file a corrected journal entry reflecting no post-release period.

[Update: the state did not file a PR and the mandate issued on January 7, 2019.]

January-February 2019 KSC Docket

Here are the criminal cases on the KSC docket for January 28-February 1, 2019. 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.

January 28--Monday--a.m.

State v. Stephen Gentry, No. 116,371 (Saline)

Direct appeal; First-degree murder

Peter Maharry

[Affirmed/Vacated; Rosen; September 20, 2019]

• Failure to give voluntary manslaughter instruction
• Failure to give lesser-included offense instructions
• Denial of motion to continue
• Improper assessment of restitution

State v. Macio Palacio, Jr., No. 116,899 (Saline)

Direct appeal; First-degree murder

Gerald E. Wells

[Affirmed; Rosen; June 7, 2019]

• Failure to change venue
• Improper admission of confession

State v. Steven Edwards, No. 117,305 (Sedgwick)

Sentencing appeal and motion to withdraw plea

Jennifer C. Roth

[Affirmed/vacated; Stegall; May 10, 2019]

• Improper imposition of lifetime postrelease supervision
• Dissatisfaction with counsel required withdrawal of plea

State v. Marquel Dean, No. 116,568 (Sedgwick)

Direct appeal; First-degree premeditated murder

Carl Maughan

[Affirmed; Stegall; October 25, 2019]

• Juror misconduct
• Failure to give informant cautionary instruction
• Failure to grant new trial re: evidence of witness' plea deal
• Insufficient evidence of premeditation
• Improper admission of gang affiliation evidence

January 29--Tuesday--a.m.

State v. Erica Tatro, No. 118,237 (Saline)

State appeal (petition for review)

Joel Ensley

[Reversed/remanded; Luckert; July 26, 2019]

• Whether attenuation doctrine applied to excuse Fourth Amendment violation

State v. Daniel Christian, No. 116,133 (Reno)

Direct appeal (petition for review); Possession

Randall L. Hodgkinson

[Reversed/remanded; Luckert; July 26, 2019]

• Whether attenuation doctrine applied to excuse Fourth Amendment violation

State v. Lee Sanders, No. 118,640 (Shawnee)

State appeal (petition for review)

Reid T. Nelson

[Affirmed; Luckert; July 26, 2019]

• No reasonable suspicion to detain
• Whether attenuation doctrine applied to excuse Fourth Amendment violation
• Whether alternative bases for search (inevitable discovery/inventory) justified warrantless search

January 30--Wednesday--a.m.

State v. Grover James, 117,945 (Sedgwick)

Direct appeal; First-degree premeditated murder

Kai Tate Mann

[Affirmed; Beier; June 28, 2019]

• Failure to give lesser-included offense instructions
• Improper admission of autopsy photos
• Prosecutorial error in closing argument
• Denial of right to be present when granting continuances

State v. Rogelio Soto, Jr., No. 117,059 (Sedgwick)

Direct appeal (after remand); First-degree premeditated murder

Kevin J. Zolotor

[Reversed/remanded; Beier; July 26, 2019]

• Whether trial court could consider Brady challenge on appellate remand

January 31--Thursday--a.m.

State v. Alejandro Garcia-Garcia, No. 116,648 (Montgomery)

Direct appeal; Attempted capital murder

Clayton J. Perkins

[Affirmed/vacated; Biles; May 10, 2019]

• Improper admission of other crimes evidence
• Prosecutorial error in closing argument
• Failure to give attempted kidnapping instruction as lesser
• Improper assessment of BIDS fees

State v. Stephen Macomber, No. 113,869 (Shawnee)

Direct appeal (petition for review); Involuntary manslaughter

Jonathan B. Phelps

[Affirmed; Biles; May 17, 2019]

• Self-defense immunity
• Failure to instruct on self-defense presumption

February 1--Friday--a.m.

Reginald Stewart v. State, No. 115,149 (Sedgwick)

K.S.A. 60-1507 appeal

Michael P. Whalen

[Affirmed; Johnson; July 12, 2019]

• Failure to appoint counsel for consideration of state's response to motion
• Failure to call eyewitness ID expert was ineffective assistance of counsel

State v. Jeffery Redding, No. 115,037 (Rice)

Sentencing appeal

Michael P. Whalen

[Affirmed; July 12, 2019]

• Failure to appoint counsel for motion to correct illegal sentence
• Failure to consider departure motion from hard-25 sentence

Kedrin Littlejohn v. State, No. 115,904 (Sedgwick)

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

Michael P. Whalen

[Remanded to COA; Johnson; August 23, 2019]

• Whether exceptional circumstances justified second or successive petition

Austin N. Jones, No. 114,601 (Sedgwick)

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

Kristen B. Patty

[Dismissed as improvidently granted July 12, 2019]

• Failure to appoint counsel for hearing
• Ineffective assistance of trial counsel

No need to search wallet for property safekeeping

Whitney T. Kauffeld won in State v Evans, No. 119,458 (Kan. November 21, 2018), affirming Judge Sexton's suppression order in a Dickinson County drug prosecution.  An officer responded to a serious one-car accident on I-70. Ms. Evans, the driver, was in pain and distraught, but identified herself to officers. Emergency personnel extracted Ms. Evans from the car and took her away by ambulance. Prior to having the car towed, an officer observed a purse and a wallet in the car. The officer retrieved the wallet and purse and proceeded to look through the purse. The officer testified that he was looking for a drivers' license, not investigating a crime. The officer testified that he needed information to complete the paperwork for the accident. When he did not find a drivers' license, he proceeded to open the wallet and discovered a baggie containing what later was determined to be methamphetamine. 

The district court held that the officer could seize the purse and wallet for safeguarding of property, but held that further intrusion into the containers without a warrant or other exception violated the Fourth Amendment. 

The KSC first clarified that there was no probable cause to search the car--the state's only asserted exception was as an inventory search. Then reviewing inventory search cases, the KSC agreed with the district court's legal conclusions. The KSC particularly noted the failure to prove any standardized procedures in such circumstances:

Likewise, here, we have no evidence establishing the standard procedures of either the Abilene Police Department or the Dickinson County Sheriff's Office. {The officer] testified "there was a wrecker coming for [Evans' car], and it's my practice, when there's something of possible value in the car, I like to collect it for safekeeping, so it doesn't get lost, or stolen from the wrecker yard." But an individual officer's practice does not meet the standard discussed in [Cady v. Dombrowski 413 U.S. 433 (1973)]. He also did not speak to any policy about searching closed purses and zipped wallets once seized—a standard the ]Florida v. Wells, 495 U.S. 1 (1990)] decision makes clear must exist for the search to be constitutional. In fact, the State has never argued that the search complies with the inventory search exception to the warrant requirement. Yet, as Dombrowski, [South Dakota v. Opperman, 428 U.S. 364 (1976)], Wells, and other cases make clear, the caretaking role of law enforcement does not itself constitute an exception to the warrant requirement. Without evidence of a standardized policy allowing the search, we hold the authority of Dombrowski, Opperman, and other related cases does not support the State's contention that the search of Evans' purse and wallet fits a well-delineated exception to the warrant requirement. 

The KSC also rejected the state's claim that Kansas statutes governing accident reports justified the warrantless search in this case. In particular, the KSC held that there was no exigency in identifying Ms. Evans because she had provided her name to the officers before being removed by emergency personnel. And the KSC held that a driver can have a reasonable amount of time to produce a drivers' license upon demand by an officer. Because the officers intruded upon Ms. Evans' wallet without a warrant and without proving an exception to the warrant requirement, the KSC affirmed the suppression order.