Here is the Governor's press release announcing that she has appointed Melissa Taylor Standridge, currently Judge on the Kansas Court of Appeals to fill a vacancy created by the retirement of Justice Carol Beier. Judge Standridge, a UMKC Law graduate, has served on the Kansas Court of Appeals since 2008.
[Update: here is a court press release indicating that Justice Standridge will be sworn in on December 14, 2020.]
Kai Tate Mann won in State v. Herring, No. 118,648 (Kan. October 16, 2020), obtaining a new hearing for Mr. Herring's motion to withdraw plea in a Sedgwick County aggravated robbery prosecution. Mr. Herring pleaded guilty to an amended charge of robbery and aggravated assault, but before sentencing filed a motion to withdraw plea, citing ineffective assistance of counsel. The district court appointed new counsel and held an evidentiary hearing but found that Mr. Herring did not meet the test for ineffective assistance of counsel under Strickland v. Washington.
The COA agreed with Mr. Herring that the district court applied the wrong test. Because this was a presentence motion to withdraw plea, under State v. Edgar, 281 Kan. 30, 127 P.3d 986 (2006), Mr. Herring only needed to show "lackluster advocacy" to show "good cause" for presentence withdrawal. But the COA went on to hold that the error was harmless. The KSC granted review and held that these circumstances are not amenable to harmless error analysis:
The simple point is that neither case supports the Herring panel's notion that the district court's abuse of discretion from applying the incorrect legal standard to determining "good cause" could be saved by harmless error review. Indeed, our caselaw holds otherwise. In similar cases when "the district court's decision to deny the defendant's motion to withdraw plea may have been guided by an erroneous legal conclusion," the court has consistently reversed and remanded "to ensure that the district court applies the appropriate legal standard to determine whether defendant made the 12 good cause showing." State v. Garcia, 295 Kan. 53, Syl. ¶ 5, 283 P.3d 165 (2012)
Because the district court used the incorrect and more stringent standard, the KSC held that the proper remedy was to remand for the district court to apply the correct standard:
Even worse, no caselaw supplies an exact meaning of lackluster advocacy, so it is impossible for a reviewing court—like the Herring panel—to know how its view might square with the district court's on the same set of facts. The lower court has to rule first to know that.
This unknown is easily illustrated. As noted by the panel, the dictionary definition of "'lackluster'" means "'lacking energy or vitality; boring, unimaginative, etc.'" Although we emphasize that we do not express any opinion on the merits of Herring's plea withdrawal motion, this record at least shows circumstances that might be fairly characterized as "lackluster" advocacy, such as [defense counsel] not letting Herring review the surveillance recordings until the court ordered him to do so; or not listening to the jail call recording until the first morning of trial despite having received it the week before. A reviewing court may think it understands how a district court should view these circumstances, but it cannot know for sure until the lower court does the analysis. The district court must decide first whether these facts, taken in consideration with the rest of Herring's case, amount to good cause under the lackluster advocacy standard.
As a result, the KSC remanded for a hearing using the "lackluster advocacy" standard.
Here is a press release announcing that the Supreme Court Nominating Commission nominated the following three persons to fill the vacancy created by the retirement of Justice Beier: Judge Kim Cudney, Chief Judge of the Twelfth Judicial District, Judge Melissa Taylor Standridge of the Kansas Court of Appeals, and Kristen Wheeler, a Wichita lawyer. The Governor has 60 days to appoint one of these three persons.
[Update: here is a blog post reporting that the Governor selected Judge Melissa Taylor Standridge from this list.]
Randall L. Hodgkinson won in State v. Keyes, No. 118,894 (Kan. September 11, 2020), obtaining a new trial in a Grant County first-degree premeditated murder prosecution. The death involved a person who had been allowed to live in a trailer on Mr. Keyes' girlfriend's rural property. After several conflicts between the property owner and the decedent, Mr. Keyes testified that he went to the trailer to tell the decedent he was no longer welcome on the property and that, due to prior violent incidents, he took a gun for his protection. Mr. Keyes testified that when he approached the decedent in the trailer, the decedent attacked him with a knife and, as a result, Mr. Keyes shot and killed the decedent. The state introduced snitch evidence that Mr. Keyes went to the trailer with a plan to harm the decedent and carried out that plan.
At trial, Mr. Keyes requested a self-defense instruction. The district court denied the instruction. Viewing the evidence in a light most favorable to Mr. Keyes, the KSC held that the instruction should have been given:
We find that Keyes' testimony—in light of the entire record—sufficed to make a self-defense instruction factually appropriate. First, Keyes' testimony, if believed by the jury, could satisfy the subjective prong of the test by showing Keyes believed it was necessary to kill Martin in order to defend himself. According to Keyes' testimony, Keyes feared for his life when Martin came at him with a knife threatening to kill him. Although the State's evidence may have rebutted this narrative, a defendant's testimony that he or she believed deadly force was necessary is enough to satisfy the subjective prong if a reasonable fact-finder would reasonably conclude the defense applies.
Keyes' testimony, if believed, could also demonstrate that a reasonable person, in the circumstances described by Keyes, would have perceived the use of deadly force in self-defense as necessary. Based on [the snitch's] testimony, the State argues a self-defense instruction was unwarranted because Keyes had intended to start an altercation with Martin. According to the State, Keyes took a gun, set up Malone at the back entry of Martin's trailer, and entered Martin's trailer in the middle of the night to shoot Martin four times. But again, the jury heard countervailing evidence. For example, [the snitch] admitted that he did not witness the altercation between Keyes and Martin because he stayed outside the trailer and it was too dark to see inside. And while all other evidence—including Martin's autopsy—concluded that Keyes shot Martin four times, [the snitch] told detectives he only heard one shot.
Furthermore, Keyes claimed he was in the trailer at the property owner's request to ask Martin to leave. Keyes said [the snitch] was not there. According to Keyes, Martin was a violent individual who was dangerous and out of control. At trial, Keyes presented evidence through several witnesses to support this. Several acquaintances of Martin testified that on prior occasions, Martin had threatened their lives with a knife. This explained Keyes' belief he needed to bring a gun to talk to Martin. Indeed, these competing narratives highlight "why the existence of competent evidence makes the decision on the affirmative defense of self-defense a function for the jury." If the jury had believed Keyes' account of what happened, the evidence considered as a whole would have permitted a reasonable factfinder to conclude Keyes acted in self-defense.
The KSC went on to consider the state's claim that any instructional error was harmless because of the implausibility of the defense. The KSC concluded that the entire case depended on a credibility determination and that it could not be sure that the failure to instruct on self-defense did not affect the outcome of the case. As a result, it reversed and remanded for a new trial.
One technical aspect of this case worth noting is which harmless error rule should apply. Without analysis, the KSC applied a nonconstitutional test requiring the state to show "no reasonable probability" that the outcome of the case would have been different. The other possibility would have been applying a constitutional harmless error test requiring the state to show "no reasonable possibility." Because the KSC reversed under the less demanding test, it doesn't matter in Mr. Keyes' case. But Judge Leben (sitting by assignment for this case) did note in his concurring opinion that it could matter in other cases and that the constitutional test seems more appropriate when the district court denies an affirmative defense instruction (as opposed to a cautionary instruction or a limiting instruction):
At least one state supreme court has applied the constitutional harmless-error test in cases like this one, in which the trial court had refused to give a jury instruction central to the defense case. See Alexander v. State, 749 So. 2d 1031, 1038 (Miss. 1999). And several federal courts have indicated that the failure to give a jury instruction central to the defense case violates the defendant's constitutional right to present a defense, although a different harmless-error standard applied in these federal cases since they arose under the federal Antiterrorism and Effective Death Penalty Act of 1996. See Lannert v. Jones, 321 F.3d 747, 754 (8th Cir. 2003); [Bradley v. Duncan, 315 F.3d 1091, 1098-99 (9th Cir. 2002)]; Davis v. Strack, 270 F.3d 111, 123-24 (2d Cir. 2001); Baker v. Yukins, 199 F.3d 867, 875-76 (6th Cir. 1999). I'm inclined to think that because the defendant's constitutional rights are at issue in a case like ours, the constitutional harmless-error test should apply.
So in a future case, this might be important.
Richard Ney and David L. Miller won in Khalil-Alsalaami v. State, No. 115,184 (Kan. September 11, 2020), obtaining a new trial in a Riley County aggravated criminal sodomy prosecution. After his convictions were affirmed on appeal, Mr. Khalil-Alsalaami filed a motion pursuant to K.S.A. 60-1507 asserting ineffective assistance of counsel. The district court denied relief, but the COA ordered a new trial. The KSC granted the state's PR, but ended up also ordering a new trial, albeit on slightly different grounds than the COA.
The main issue for the KSC was the decision to drop a challenge to the admissibility of several incriminating statements and stipulation to the voluntariness of those statements. A divided KSC held that Mr. Alsalaami showed deficient performance. First, the majority noted that there were substantial issues related to voluntariness and that defense counsel knew of them:
[Defense counsel] testified that he evaluated these factors in deciding to forego completion of Freed's Jackson v. Denno hearing and filing of a defense motion to suppress, but this blanket statement, adopted and embraced by [the district court], conflicts with his other, more factor-focused testimony in the 60-1507 hearing. Those passages in the record demonstrate that [defense counsel] was aware that three of the five voluntariness factors this court has enumerated would have cut in favor of the defense.
The majority also noted issues with language and the lack of an interpreter, expounded upon by Justice Beier as described below. Viewing all of the circumstances, the majority concluded the record showed deficient performance:
In sum, we do not share Judge Bosch's certainty that dispensing with a challenge to admission of Khalil-Alsalaami's partial confession was a necessary component of a legally or logically supported trial strategy or that any such challenge would have been hopelessly futile. Quite the opposite. On the undisputed testimony of [defense counsel] under the governing law as it had developed at that time, we hold that Khalil-Alsalaami received deficient representation pretrial and at trial.
The majority also noted its discomfort with defense counsel's rationale for not such issues because they were worried that they might anger the trial judge:
we must comment briefly on counsel's expressed intention to avoid angering the trial judge by aborting the Jackson v. Denno hearing and avoiding pursuit of a motion to suppress. We understand that judges are human and that experienced defense counsel must size up and react to any individual judge's—or collective jury's—apparent patience for arguments that may or may not be successful. But, here, counsel professed to believe that their abandonment of their client's challenge to admission of his confession might mean that [the district court] would grant them what amounted to a potentially undeserved favor on another, later legal position. Specifically, they believed the judge ultimately demonstrated his appreciation of their forbearance on the confession challenge when he accepted their argument for exception to an evidence bar under the rape shield statute. This calculus bothers us for two reasons. First, in a he said-she said sex crime case, especially one involving an alleged victim who is 13 years old, a confession from the defendant is one of the strongest pieces of evidence the State can possess. In fact, it can produce a conviction with no other support. It speaks far more loudly to a jury than the alleged sexual abuse victim's tangential and legal sexual conduct with an age peer. Second, in our courts, judges are charged with evaluating the merits of each legal argument presented by a party without fear or favor, and without regard for their affection for or patience with counsel representing that party. In other words, [The district judge's] oath forbade him from engaging in the kind of cynical tit-for-tat counsel testified that they expected from him. We cannot encourage this view of how judges operate by endorsing it as the basis of an acceptable strategy under the first prong of Strickland.
The majority held the statements in this case were obviously prejudicial and therefore ordered a new trial.
Justice Beier concurred and noted a possible additional issue was the failure to provide an interpreter:
It is undisputed that Khalil-Alsalaami's primary language is not English. Period. The plain language of K.S.A. 75-4351 entitled him to have an interpreter to assist him with questioning by law enforcement. It entitled him to have an interpreter with him in all court proceedings that were part of the prosecution whose goal was to imprison him. Native English speakers such as his trial counsel and the judge presiding over his trial were not equipped to determine otherwise merely because they interacted with him well enough to suit them. This is also true of the district judge who denied Khalil-Alsalaami's K.S.A. 60-1507 motion.
Justice Beier suggests that in future cases where persons who do not primarily speak English but are denied an independent interpreter should build a good record regarding the defendant's actual facility with English to facilitate appellate review.
[Update: the state filed a motion for rehearing/modification on September 29, 2020.]
[Further update: the KSC granted the state's motion for rehearing/modification and set thematter on its December 2020 docket.]
[Further update: it is possible that the rare decision to grant a motion for rehearing may have been influenced by significant turnover on the KSC. The original opinion was decided 4-2, with Chief Justice Nuss not participating in the final decision, Senior Judge McAnany sitting for retired Justice Johnson, and District Judge Godderz sitting in for Justice Rosen, who recused for unspecified reasons. Both Judge McAnany and Judge Godderz were in the majority. At the rehearing argument on December 18, 2020, the three new justices sat, and Judge McAnany and Judge Godderz did not. Justice Rosen still did not participate in the rehearing argument. So the make up of the KSC deciding the motion for rehearing is quite different than the panel deciding the original case.]
Kai Tate Mann won in State v. Olsman, No. 120,119 (Kan. App. September 4, 2020), reversing an Elk County kidnapping conviction. Mr. Olsman was charged and convicted of attempted rape and kidnapping. The state specifically charged kidnapping with intent to facilitate flight or the commission of any crime. The COA cited State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976) for the proposition that to support a kidnapping conviction under this subsection, the restraint must not be merely incidental to another crime or inherent in the other crime. In this case, the state alleged that Mr. Olsman grabbed the alleged victim by the arm, said "let's bring up old times," referring to prior sexual encounters, and that when the alleged victim refused, bearhugged her, carried her to the bedroom, threw her on the bed, and climbed on top of her.
The COA applied Buggs to these charges and held that any restraint was the basis of the attempted rape charge:
Here, Olsman physically overpowered [the alleged victim] to commit the attempted rape. There is no independent or significant distinction between Olsman's use of force to carry out the attempted rape and the taking or confinement the State alleges as the basis of the kidnapping charge. The State’s express theory of the case was that Olsman's confinement of [the alleged victim] was the force used to commit the attempted rape. Olsman's actions were both incidental to and inherent in the force or fear supporting the rape charge and do not independently support a kidnapping conviction under the Buggs analysis. Olsman committed the attempted rape by physically overpowering [the alleged victim] and continuing to physically control her movements, in spite of her efforts to resist the attack, until he ultimately allowed her to leave his residence.
The COA observed that there was no evidence that Mr. Olsman was concerned about anyone else being in the house or concern that anyone else would arrive at the house. As a result, the COA held that the evidence was insufficient to support the independent charge of kidnapping.
[Update: the state filed a PR on September 30, 2020. Mr. Olsman filed a cross-PR on November 2, 2020 arguing evidentiary issues related to the attempted rape conviction affirmed by the COA.]
[Further update: the KSC denied the state's PR and Mr. Olsman's cross-PR on February 2, 2021 and the appellate mandate issued on February 9, 2021].
Kasper C. Shirer won in State v. Dominguez, No. 121,618 (Kan. App. August 28, 2020), obtaining a new probation violation disposition hearing in a Sedgwick County trafficking in contraband prosecution. Ms. Dominguez had pleaded guilty and, being in a border-box, was placed on probation by the district court. Based on technical violations, the district court later revoked Ms. Dominguez' probation and gave her a three-day dip jail sanction and reinstated her probation. Still later, based on additional violations, the district court again found Ms. Dominguez had violated the terms of her probation. At the 2019 hearing on these violations, the state argued that the statute that provided for mandatory 120- or 180-day intermediate sanctions for probation violations had been repealed effective on July 1, 2019 and therefore requested that Ms. Dominguez be remanded to serve her prison sentence. The district court agreed with the state.
On appeal, the COA cited a recent KSC case, State v. Coleman, 311 Kan. 332, 460 P.3d 828 (2020) (blogged about here), which had held that a 2017 repeal of mandatory intermediate sanctions in certain cases did not apply retroactively. The COA held the same rationale applied here:
Although Coleman addressed the retroactivity of a different amendment to the probation revocation statute, the same reasoning applies here. The retroactivity language now found in K.S.A. 2019 Supp. 22-3716(c)(10) was enacted and inserted into the statute in 2014 to serve as an effective date for the new intermediate sanctioning scheme that had been enacted in 2013. Because the 2019 version of the sanctioning scheme did not exist at the time the language in subsection (c)(10) was enacted, the language in subsection (c)(10) cannot serve as a clear indication that the Legislature intended the 2019 amendment to operate retroactively.
As a result, the COA held that the 2019 repeal did not apply retroactively and, therefore, Ms. Dominguez was entitled to remand to impose an intermediate sanction unless the district court found a valid statutory ground to do otherwise.
[Update: the state did not file a PR and the mandate issued on October 6, 2020.]
Michelle A. Davis won in State v. Steven Brown, No. 119,460 (Kan. App. August 21, 2020), obtaining a new trial in a Saline County statutory rape prosecution. Among other issues, Mr. Brown argued that the district court improperly admitted prior bad act evidence and erred by consolidating for trial an information alleging sex crimes and an information alleging intimidation of a witness. The COA found both of these claim meritorious.
With respect to the evidentiary issue, the state sought to admit incidents of property crimes stemming from arguments with the alleged victims' mother and was admitted to prove why the alleged victim delayed reporting sexual abuse. Mr. Brown agreed that the evidence was material to a disputed issue, but argued that the limited probative value of the evidence was outweighed by its prejudicial effect. Although the COA indicated its frustration with the failure of the district court to make findings on the record, it ultimately held the evidence was not admissible. The COA made detailed analysis under State v. Boysaw, 309 Kan. 526, 439 P.3d 909 (2019), holding that the evidence was of little probative value, but had a high risk of improperly influencing the jury:
In conclusion, having conducted a particularized weighing of the probative value and prejudicial effect of the prior crimes evidence, we are convinced the risk of undue prejudice to Brown substantially outweighed the probative value of the evidence. As a result, the district court abused its discretion in its admission of the State's K.S.A. 60-455 evidence to prove that [the alleged victim] delayed disclosure of her sexual abuse due to her fear of Brown's violent behavior.
The COA went on to hold that the error was not harmless, particularly in light of a limiting instructions given by the district court. The COA concluded that they sufficiently mitigated any improper prejudice:
Under the totality of these circumstances, we are not convinced that the district court's two sentence limiting instruction, which informed the jury that other crimes committed by the defendant "may be considered solely as evidence relating to delayed reporting by [the alleged victim] and for no other purpose," was sufficiently informative to mitigate the prejudice in admission of the K.S.A. 60-455 evidence. As written, the instruction did not admonish the jury to not consider—while it was deliberating the "evidence relating to delayed reporting"—that Brown was a violent criminal whose testimony, therefore, was not to be believed.
With respect to the improper consolidation claim, in addition to the sex offenses, the state also charged Mr. Brown in a separate information with attempting to dissuade the alleged victim and her mother from testifying based on a letter written by Mr. Brown from jail. This information was consolidated for trial with the sex offense charges.
The COA held that the district court abused its discretion by consolidating the cases for trial:
Unlike the district court, we fail to see how the contents of the letter tended to prove Brown's intent or motive to sexually assault [the alleged victim] or his consciousness of guilt in doing so. The district court's view that the letter was probative to prove that Brown sexually assaulted [the alleged victim] is not only questionable, but it also directly contradicts the limiting instruction the court provided the jury. In the instruction, the district court admonished the jury that it could only consider the letter when evaluating whether Brown committed the intimidation of witness charges "and for no other purpose."
The COA went on to hold that the letter admitted in relation to the intimidation charge "surely placed Brown in an unfavorable light before the jury . . . . The letter had the effect of improperly impugning Brown's character and giving the impression that Brown's reveling in consensual sexual behavior necessarily showed his criminal intent or motive in sexually assaulting [the alleged victim.]"
As a result, the COA held that the consolidation error, by itself, separately required a new trial. The COA also held that taken together, the errors required a new trial:
Consistent with the purpose underlying the cumulative error rule, however, we pause to note how the two reversible errors we have identified, when aggregated, only heightened the prejudicial effect in denying Brown a fair trial. Together, the reversible errors acted synergistically with the end result that the jury received a substantial quantity of derogatory evidence to improperly discredit Brown, impeach his character, or at least put him in a bad light in defending the sexual assault case where the critical evidence was his testimony compared to [the alleged victim's] testimony. Moreover, as mentioned earlier, the evidence of guilt was not overwhelming given the lack of a third-party eyewitness or incriminating forensic evidence. Whether considered singularly or together, we are convinced that Brown did not receive a fair trial.
[Update: the state filed a PR on September 18, 2020].
[Further update: the KSC denied the state's PR on January 29, 2021 and the mandate issued on February 9, 2021.]
Christopher M. Joseph and Carrie E. Parker won in State v. Lindemuth, No. 116,937 (Kan. August 28, 2020), obtaining a new trial in a Shawnee County criminal threat prosecution. The COA had reversed Mr. Lindemuth's conviction on other grounds and the state had sought review. During that time, the KSC decided State v. Johnson (blogged about here), holding that the reckless criminal threat statute was unconstitutional. The KSC applied that precedent and held that the conviction had to be reversed and remanded for a new trial. Like Mr. Johnson, Mr. Lindemuth had been convicted based on both intentional and reckless criminal threat. Like Mr. Johnson, the KSC held that such circumstances required a new trial:
The circumstances contributing to the outcome in Johnson also exist in Lindemuth's case. First, the trial court instructed the jury on both mental states and provided their statutory definitions. . . .
Second, neither the jury instruction nor the State's arguments directed the jury toward convicting Lindemuth based solely on one mental state or the other. The prosecutor and the court mentioned the requisite mental states several times but simply in a neutral way. For instance, during voir dire, the prosecutor said "[t]he defendant's charge in this case is that he threatened to kill with the intent or in reckless disregard. Meaning he didn't care of the outcome, which is scaring somebody."
Third, while telling the jury that its "agreement upon a verdict must be unanimous," the trial court did not instruct the jury it had to agree unanimously on whether Lindemuth acted either intentionally or recklessly.
Fourth, the jury verdict form stated, "We, the jury, find the defendant guilty of the crime of criminal threat (prior to Matthews leaving Oklahoma)." The jury did not indicate it had unanimously concluded Lindemuth made a criminal threat either intentionally or recklessly.
Finally, Lindemuth denied making any threatening statements to Matthews. So his alleged threat to commit violence and communication of it with the intent to place Matthews in fear—versus his reckless disregard of the risk of causing fear in another— obviously must come from other evidence.
The KSC concluded it could not discern whether the jury had concluded that Mr. Lindemuth committed criminal threat intentionally, so it reversed and remanded for a new trial.
Rick Kittel won in State v. Ellis, No. 120,046 (Kan. August 7, 2020), obtaining reversal and remand in a Lyon County drug possession prosecution. Police received a report from a convenience store that a woman had been in a restroom for an extended time. An officer knocked on the bathroom door and the woman inside said she was okay, but having stomach problems. When Ms. Ellis came out of the bathroom, she gave her drivers license to the officer, who gave it to dispatch for wants and warrants. While interacting with Ms. Ellis, the officer saw her hands shaking and asked her if she had been using drugs, which she denied. The officer asked to search her, but Ms. Ellis refused but admitted that she had drugs in her person. The officer learned that Ms. Ellis had a probation violation warrant, arrested Ms. Ellis, searched her wallet, and found drugs and paraphernalia.
On appeal, the state argued that the attenuation doctrine should be applied to excuse any improper search or seizure. The COA held that the search exceeded the scope of a proper welfare check and ordered suppression.
The KSC held that the officer's initial contact with Ms. Ellis was lawful as a welfare check and that the officer could legally obtain a drivers' license. But the KSC went on to hold that the officer exceeded the scope of a proper welfare check by retaining the drivers' license and running a wants and warrants check:
Here, Kent had no reasonable suspicion that Ellis was committing, had committed, or was about to commit a crime. Kent testified that he saw no evidence of criminal activity and that Ellis assured him that she was not in need of assistance. Kent nevertheless retained her license and placed a call to dispatch for the express purpose of extending his investigation into whether she had any outstanding warrants. He directed her to go outside and call for someone to pick her up, and he interrogated her about drug use and told her he wanted to search her belongings. All of these activities broke the chain of lawful conduct that began when he responded to a welfare call.
The KSC recognized that at first blush, it appeared that the attenuation doctrine may have relieved the state from the exclusionary rule. But upon closer review, it held that it did not apply:
The problem for the State in the present case is that Kent was already engaging in an unconstitutional criminal investigation of Ellis before he received information about the possible warrant. He continued to exercise control over her, escorting her (or, in the words of the district court, "cajol[ing] her") outside the store and directing her to call for her ride, before the warrant was confirmed. Under the State's theory, police could approach random people on the street, demand their identification cards, and run warrant checks on them. If no warrant came up, then the detainee would be released—no harm, no foul. If a warrant came up, then the warrant would attenuate the unconstitutional stop and justify arrests and searches incident thereto. The police could routinely carry out criminal investigatory detentions of all citizens without risking suppression of discovered evidence.
The KSC also held that retaining the license and running wants and warrants is so far outside of the purpose of the welfare check that the officer's behavior was flagrant. As a result, the KSC refused to apply the attenuation doctrine and ordered suppression.
James M. Latta won in State v. Dunham, No. 121,081 (Kan. App. July 31, 2020), obtaining a new sentencing hearing in a a Saline County drug prosecution. Mr. Dunham pleaded guilty to charges involving conduct occurring why he was on probation from other charges. The district court ran the sentences for the new charges consecutively and held that it did not have discretion to run them concurrently. After carefully reviewing the statutory history of the relevant sentencing statutes, the COA held this was erroneous:
Dunham had multiple sentences imposed on different cases on the same day. In the case of multiple sentences, [State v. Edwards, 252 Kan. 860, 852 P.2d 98 (1993)] guides our decision. Edwards informs us that the court has complete discretion under K.S.A. 1992 Supp. 21-4608(1) (now codified at K.S.A. 2019 Supp. 21-6606[a]) to run the sentences either consecutively or concurrently. That is, K.S.A. 2019 Supp. 21-6606(c), (d), and (e) play no role in multiple sentencing cases unless the sentencing court fails to address whether the multiple sentences run concurrently or consecutively. Edwards' interpretation of the previous version of K.S.A. 2019 Supp. 21-6606(a) thus allows a court flexibility—regardless of the sentence ordered in any individual case (such as consecutive prison terms included in the sentence for Case 3)—to run the sentences in multiple cases concurrently or consecutively as the court finds appropriate.
Because Dunham was sentenced for multiple crimes on the same day, the court erred in finding that it was required to run the sentences consecutively. We note Edwards is still good law and we are duty bound to follow Supreme Court precedent unless there is some indication that the Kansas Supreme Court is departing from its previous position. As in Edwards, this case must be remanded to allow the district court to exercise its discretion in determining whether Dunham's sentences in Cases 4 and 5 should run concurrently or consecutively with each other and with Case 3.
[Update: the state did not file a PR and the mandate issued on September 8, 2020.]
Michelle A. Davis won in State v. Thomas, No. 115,990 (Kan. July 24, 2020), obtaining a new trial in a Chautauqua County aggravated battery and child abuse prosecution. There were separate claims that the instructions were improper and that the prosecutor committed error in closing argument.
The parties agreed that the jury instructions related to aggravated battery were legally incorrect. Pursuant to State v. Hobbs, 201 Kan. 203, 340 P.3d 1179 (2015), the aggravated battery instruction is required to show that the defendant "knowingly" acted: that he or she "was aware the conduct was reasonably certain to cause the result." Instead, the district court instructed the jury that "knowingly" only meant that the defendant intended to engage in the conduct which resulted in great bodily harm, not that he intended to cause the precise harm. As a result, the KSC held that the instruction was not legally appropriate.
Mr. Thomas also claimed that the prosecutor erred by showing the jury a photograph of the child and telling the jury to acquit if they thought it was okay to do that to a child. The KSC agreed that such arguments were not proper:
We agree that read in isolation the prosecutor's arguments clearly encouraged the jury to convict based on an assessment of whether the jury thought Thomas' actions were okay, not on whether the State had met its burden of proving the elements. But we disagree with the panel's conclusion that the meaning changed when read in context of other statements. The prosecutor made no attempt to relate the statement to the cruel and inhuman punishment element or any other element. And the prosecutor shifted the jurors' attention away from the case to how they felt about whether "that's okay to do to your child." (Emphasis added.) The last two words invited jurors to consider the crime in the context of families or community, either of which is error.
When considering the impact of the prosecutor's improper argument, the KSC noted that "the prosecutor repeated the argument, inviting the jury to make its own emotional assessment about what was okay." The KSC considered the cumulative effect of the two errors:
But the instruction given here allowed the jury to find Thomas guilty if it determined he intended to engage in the conduct. Thus, we cannot be sure the jury based its verdict on the requisite level of culpability. We recognize serious credibility issues surround Thomas' defense that the house did not consistently have hot water, and those credibility issues might have prevented us from determining clear error occurred. But given that no direct evidence disputed Thomas' testimony about the lack of hot water, applying the constitutional harmless error standard, we cannot say beyond a reasonable doubt that the verdict was not affected. The jurors could have based the verdict on a lower level of culpability than one requiring they find that Thomas knew it was reasonably likely great bodily injury or disfigurement would occur.
The prosecutor's erroneous statement increases this uncertainty because it encouraged the jury to convict if it concluded Thomas' actions, even if merely negligent, were not "okay." This statement invited consideration of emotion rather than a reasoned and dispassionate consideration of the facts and the law as applied to those facts—in particular, as to whether Thomas had knowingly caused the harm.
As a result, the KSC reversed the aggravated battery conviction and remanded for a new trial.
Finally, the KSC agreed with Mr. Thomas' argument that a Virginia conviction for assault and battery was broader than any Kansas person offense and therefore under Wetrich (blogged about here), could not be classified as a person offense in criminal history.
Gerald E. Wells won in Balbirnie v. State, No. 115,650 (Kan. July 24, 2020), obtaining a new trial in a Franklin County second-degree murder prosecution. After the COA affirmed the conviction on direct appeal, Mr. Balbirnie claimed IAC in a motion pursuant to K.S.A. 60-1507. In particular, Mr. Balbirnie claimed that his appointed trial counsel had failed to admit a 911 recording where the caller identified someone other than him as the killer.
The COA had held that Mr. Balbirnie showed defective performance but, in light of eyewitness testimony and Mr. Balbirnie's recorded statements, concluded that he failed to establish prejudice. The KSC disagreed with the latter finding:
As to the first point, the evaluation of veracity would likely be influenced by the forensic evidence. The State's forensic pathologist testified that after the fatal wound was inflicted, Nicholson would have had at least a few seconds of awareness before experiencing a gradual cessation of all functions. The fatal wound would have caused death within a few minutes and usually would cause a person to collapse "pretty rapidly." A jury could view the call as significant evidence of present sense impressions about the sequence of events and who inflicted stab wounds, especially since Nicholson collapsed near Brown.
The call undermines the credibility of Brown, Wallace, and Ellsmore, as Wallace denied using a weapon, and Brown and Ellsmore both testified they did not see Wallace with a knife.
The call also discredits the testimony of Brown about Balbirnie's admission. Brown testified that after the police had arrived, Balbirnie said, "'I stabbed the dude in the neck.'" Neither the call nor any officer's testimony confirms that admission.
. . . .
What is more, many of Balbirnie's statements while alone in the interview room, at least as described in the record, are ambiguous and others are denials of guilt. Defense counsel pointed to the interviews in closing, arguing that when Balbirnie was left alone in the room, he repeatedly said, "'I just didn't do anything wrong.'" A detective testified that Balbirnie never confessed. In fact, Balbirnie consistently told the detectives that he was merely a witness and had nothing to do with the stabbing. Finally, during the 60-1507 evidentiary hearing, Balbirnie's trial counsel testified Balbirnie has consistently maintained his innocence. The evidence is not as one-sided as the State would suggest.
Because of what the KSC described as "many credibility and evidentiary issues," it concluded that "the result of Balbirnie's trial is unreliable because of a prejudicial breakdown in the adversarial process." The KSC reversed the conviction and remanded for a new trial.
Kimberly Streit Vogelsberg, Clayton J. Perkins, and Kasper C. Shirer won in State v. Christopher Harris, No.116,515 (Kan. July 17, 2020), reversing a Sedgwick County criminal possession of a weapon conviction. The issue in the case involved the "residual" clause of K.S.A. 2019 Supp. 21-6304 making it illegal for a felon to possess "any other dangerous or deadly cutting instrument of like character." Mr. Harris was convicted for possessing a pocketknife. The KSC majority held that this residual clause did not provide explicit and objective standards of enforcement, it was facially unconstitutionally. On its way to its conclusion, the KSC majority observed that there are actually different analyses that can be relevant:
The challenged statute must clear two distinct—albeit relatively low—hurdles. One hurdle is grounded in the due process requirements of the Fourteenth Amendment. The other in the doctrine of separation of powers emanating from both our federal and state constitutions. On the one hand, a "statute that 'either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application' violates the Fourteenth Amendment to the United States Constitution and is thus void for vagueness." On the other hand, the law must "provide explicit standards for those who apply them" or it will amount to an "impermissibl[e] delegat[ion]" of "basic policy matters" by the legislative branch to "policemen, judges, and juries for resolution on an ad hoc and subjective basis." Finally, the need to prevent "arbitrary and discriminatory enforcement is heightened for criminal statutes because criminal violations result in the loss of personal liberty."
The KSC majority noted that many vagueness challenges are brought with respect to the first of these hurdles. But it focused the question in this case on the second:
Today's case gives us a textbook example of the same kind of enforcement guesswork that can result from a vague law. The statute makes it a crime for Harris to possess a weapon. A weapon "means a firearm or . . . a 11 dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character." It is undisputed that Harris did not possess a firearm, a dagger, a dirk, a switchblade, a stiletto, or a straight-edged razor. In these circumstances, enforcement officials must ask, what exactly is a dangerous cutting instrument of like character? We are unable to discern a sufficiently objective standard of enforcement in this language. Instead, we are left with the subjective judgment of the enforcement agencies and actors. A pair of scissors? Maybe. A safety razor blade? Perhaps. A box cutter? Probably, but would that decision be driven by an objective rule or a historically contingent fear of box cutters?
The KSC majority explained the dangers associated with vague laws in stark and dystopian terms:
It is the very overbreadth of such laws that renders them impermissibly vague. It is not necessarily because they are ambiguous on their face—an overbroad law can be very clear. The problem, in fact, may be amplified by clarity. If a law "makes everyone" a violator, then "prosecutors and the police [will] both define the law on the street and decide who has violated it." Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 511 (2001). This is a world in which "almost anyone can be arrested for something." Nieves v. Bartlett, 139 S. Ct. 1715 (2019) (Gorsuch, J., concurring in part and dissenting in part).
Even outside of many of these hypotheticals, the KSC majority held that the circumstances of the instant case showed arbitrary enforcement:
And we do not have to speculate on the answer to this question. Here we have a concrete example of government officials expressing and operating under diametrically opposed, yet plausible, enforcement standards—a sure sign of subjectivity in action. The State of Kansas, through its prosecutors, believes (and has acted on its belief) that K.S.A. 2019 Supp. 21-6304 is meant to be enforced against Harris and his pocketknife. But the State of Kansas has also, through its Department of Corrections, published a handbook and advised parolees (including Harris) that K.S.A. 2019 Supp. 21-6304 is not meant to be enforced against Harris and his pocketknife. Even without any bad faith on the part of the government—and the record here gives us no reason to suspect there is—the circumstances present us with an unmistakable instance of arbitrary enforcement of an inherently subjective standard.
Using this rationale, the KSC majority held that the residual clause was unconstitutionally vague and therefore reversed and remanded with directions to dismiss the charge.
As an appellate procedure point, one interesting aspect of this decision was the inclusion of a photograph of the pocketknife at issue in the actual decision. More appellate courts have shown a willingness to include such documents in their decisions. Appellate practitioners should also think about creative ways to use such documents in their briefs as well.
[Update: the state filed a motion for rehearing/modification on July 30, 2020.]
[Further update: the KSC denied the state's motion for rehearing/modification on August 27, 2020 and the appellate mandate issued on September 8, 2020.]
Here are the criminal cases on the KSC oral argument docket for September 14-18, 2020 These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Due to ongoing pandemic issues, these arguments are being conducted and broadcast by Zoom videoconference on the Court's YouTube channel. The scheduling order also includes several cases that will be heard without argument that are not summarized here.
September 14--MondayRandall Hodgkinson won in State v. Yazell, No. 116,761 (Kan. June 19, 2020), reversing the COA's dismissal of his appeal as moot. During Mr. Yazell's appeal from probation revocation, the state filed a pleading suggesting that Mr. Yazell has served his entire sentence rendering the appeal moot. In support of its assertion, the state attached a printout from the Kansas Department of Corrections website indicating that Mr. Yazell had completed his sentence and also indicated that it had talked to a KDOC employee over the phone. Based on this documentation, the Court of Appeals dismissed Mr. Yazell's appeal. On review, Mr. Yazell argued that this documentation was insufficient to establish a party's burden to show a case is moot before it is dismissed on appeal. The KSC started by noting that appellate fact-finding is the exception, not the rule:
Generally, Kansas appellate courts do not make factual findings. This task is reserved for district courts, where evidence is offered and tested. If an appellate court reviews the district court's factual findings, it generally does so only to ensure that substantial competent evidence supported those findings; it does not reweigh or reassess the evidence.
But there are times when an appellate court is called upon to make a finding of its own. One of those times occurs in this appeal—where a party alleges that a change in circumstance since the district court proceedings has rendered an action moot. Before the appellate court may consider mootness, it must confirm the change in circumstance.
Appellate fact-finding is simple when both parties agree that a change has taken place, or the change is so ubiquitous the court may take judicial notice of its happening. K.S.A. 60-409(a) (allowing courts to take judicial notice of facts of "generalized knowledge"). When the parties do not agree that a change has occurred, appellate factfinding becomes more difficult. The appellate forum is not conducive to the taking or testing of evidence. For this reason, appellate courts must carefully scrutinize the reliability of evidence before making the rare finding of fact.
Reviewing the COA order, the KSC noted that it did not reflect the COA's reasoning or basis for its decision. In particular, the KSC observed that the Department of Corrections website itself disclaimed any accuracy:
"The information contained on this website is subject to disclosure pursuant to the Kansas Open Records Act (K.S.A. 45-221). While the information is believed to be accurate, the State of Kansas, the Kansas Department of Corrections, their employees or officers, make no warranties, express or implied, including warranties of merchantability and fitness for a particular purpose. Further the Kansas Department of Corrections assumes no legal liability or responsibility for the accuracy, completeness, or usefulness of any information, product, or process disclosed, nor represents that its use would not infringe on privately owned rights."
In light of such a disclaimer, the KSC held that reliance upon such information for disposition of an appeal was inappropriate. As a result, it reversed the dismissal and remanded to the COA for further proceedings.
Kimberly Streit Vogelsberg and Kasper C. Shirer won in State v. Ward, No. 116,545 (Kan. June 19, 2020), reversing the COA's dismissal of a probation revocation appeal in a Franklin County criminal threat prosecution. After probation revocation, Mr. Ward filed a motion pursuant to K.S.A. 60-1507 challenging the revocation, which the district court summarily denied. While on appeal from denial, the COA ordered Mr. Ward to show cause why the case should not be dismissed as moot because Mr. Ward had completed the sentence. Mr. Ward stipulated that he had completed the sentence, but argued that his appeal could still have an effect in future cases.
The KSC cited its own decision decided the same day holding that "completion of a sentence does not necessarily render a case moot" and remanded to allow the COA to make an appropriate determination:
In his petition for review, Ward again points to the distinguishing factor between his case and Montgomery—that he challenges the probation revocation, not just the sanction—and argues that this means a judgment here will affect a future sentence and, therefore, affect his rights, including future sentencing decisions and when he can legally possess a firearm or expunge his conviction.
Today we published State v. Roat. Therein, we have outlined the law governing mootness and explained that the completion of a sentence does not necessarily render a case moot. We disavow any use of such a bright-line rule and direct courts to carefully analyze whether dismissal would affect an asserted right. The Court of Appeals did not have the advantage of Roat when it rejected Ward's appeal. We remand this case to the Court of Appeals so that it may reconsider the arguments that Ward presented in his response to the panel's show cause order under the guidance provided in Roat.
I expect we will have additional litigation on how the mootness doctrine applies in these circumstances.
Richard Ney and David L. Miller won in State v. Dinkel, No. 113,705 (Kan. June 12, 2020), obtaining a remand hearing to consider possible ineffective assistance of counsel in a Saline County statutory rape prosecution. The charges stemmed from charges that Ms. Dinkel had intercourse with a 13-year old student on several occasions. Ms. Dinkel claimed that the student had actually raped her and then blackmailed her. The COA had affirmed Ms. Dinkel's convictions holding that because statutory rape has no mental culpability requirement and therefore that Ms. Dinkel's intent was irrelevant. The KSC disagreed:
We do not agree with the panel's conclusion that whether K.H. forcibly raped Dinkel was irrelevant. As Dinkel argues, even if there is no mental culpability requirement for the charged crime—a conclusion we do not address today—whether she was forcibly raped affected whether she committed the actus reus of the crime. Dinkel points to K.S.A. 2012 Supp. 21-5201, which requires voluntary conduct for criminal action.
. . . .
No law criminalizes an omission with regard to the rape of a child. Consequently, Dinkel is guilty of rape of a child only if she "voluntarily engage[d] in conduct." K.S.A. 2012 Supp. 21-5201. Dinkel asserts that "[t]he victim of a rape does not voluntarily engage in sexual intercourse with the perpetrator." To decide whether Dinkel is correct, we must determine 10 what it means for conduct to be "voluntary."
. . . .
Together, these definitions indicate that voluntary conduct or a voluntary act is "personal behavior" "done by design or intention" or "[a] willed bodily movement." These unambiguous definitions support Dinkel's argument that her voluntariness in engaging in certain bodily movements is relevant to her charged crime. This leads us to the conclusion that any evidence K.H. physically forced the sexual intercourse and Dinkel did not intend any of the bodily movements that resulted in the sexual intercourse with K.H. is legally relevant to the voluntary act requirement of rape of a child under K.S.A. 2012 Supp. 21-5503(a)(3). The panel erred when it held otherwise.
The KSC clarified that the requirement for voluntariness as it relates to the actus reus of an offense is different than the culpable mental state that may (or may not) be required for the offense. It concluded that "even if Dinkel's rape defense was not relevant to a mental culpability requirement, it was relevant to the actus reus requirement."
Based on this conclusion, the KSC held that several new questions were presented related to whether Ms. Dinkel's trial attorney was ineffective for failing to argue the point. As a result, the KSC remanded to the district court to determine that question. The KSC retained jurisdiction and indicated it would take up the case again after it received the district court's findings on that question.
[Update: the district court held a hearing on September 3, 2020 and issued a decision on October 23, 2020. Ms. Dinkel filed a notice of appeal from that decision. The KSC ordered additional briefing and set the matter on its May 2021 argument docket.]
Here is a court press release announcing that Justice Carol Beier will retire on September 18, 2020. She has served on the Kansas Supreme Court since 2003 and before that on the Kansas Court of Appeals since 2000. This will trigger the nomination process set forth in the Kansas Constitution utilizing the Supreme Court Nominating Commission to forward nominees to the Governor. This is the third vacancy in roughly twelve months!
[Update: here is a blog post reporting the short list from the Nominating Commission for this vacancy.]
[Further update: here is a blog post reporting the Governor's selection of Judge Melissa Taylor Standridge to fill this vacancy.]
Caroline M. Zuschek won in State v. Maberry, No. 120,972 (Kan. App. May 22, 2020), reversing a district court finding that Mr. Maberry was not entitled to a late appeal. After pleading guilty and being sentenced, Mr. Maberry filed a motion to withdraw his plea. The district court denied the motion to withdraw and approximately six months later Mr. Maberry filed a motion to appeal out of time. The district court denied that motion as well.
On appeal, the KSC held that the Due Process Clause does not require informing a defendant of the right to appeal after denial of a motion to withdraw plea. But the KSC went on to hold that the Due Process Clause does require substantial compliance with Supreme Court Rule 134(a), mandating that if the district court rules on a motion without the presence of a party, the district court must notify the party immediately:
Although the right to appeal is entirely statutory, "where the legislature has provided the right of an appeal, the minimum essential elements of due process of law in an appeal affecting a person's life, liberty, or property are notice and an opportunity to be heard at a meaningful time and in a meaningful manner." "To satisfy due process, notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."
The plain language of Supreme Court Rule 134(a) provides: "If the court rules on a motion or other application when an affected party who has appeared in the action is not present—either in person or by the party's attorney—the court immediately must serve notice of the ruling." Notice is required to ensure that the party with the right to appeal has actual knowledge that an adverse judgment has been rendered.
Importantly, Kansas caselaw provides that the time for taking an appeal does not begin to run until the party entitled to appeal has received notice of the judgment in compliance with Supreme Court Rule 134. In particular, our Supreme Court has held that "[t]he time for filing post-judgment motions or taking an appeal from a final judgment entered without notice commences to run when there has been compliance with K.S.A. 60-258 and Rule No. 134." Daniels v. Chaffee, 230 Kan. 32, 38, 630 P.2d 1090 (1981). While K.S.A. 60-258 does not apply in criminal cases, Rule 134 applies to both civil and criminal cases.
Since Daniels, Kansas courts have repeatedly stated that compliance with Rule 134 is required before the time to take an appeal begins to run. Because Maberry was an affected party who was not present in court or represented by an attorney when the district court issued its ruling summarily denying his motion to withdraw plea, the time for taking an appeal would begin to run when Maberry was served with notice of the order.
Because the record did not establish whether the district court complied with Rule 134(a), the KSC remanded with directions that if it was not, Mr. Maberry was entitled to an out-of-time appeal.
[Update: the state did not file a PR and the mandate issued on June 30, 2020.]
Clayton J. Perkins won in State v. Frazier, No. 117,456 (Kan. April 17, 2020), obtaining a reversal of the denial of a motion to withdraw a plea in a Geary County possession prosecution. Part of the plea agreement provided that "[pursuant to this plea agreement the authorities in Ohio further agree to dismiss and/or not to file any charges resulting out of the search warrant that was obtained as a result of this arrest." Because Mr. Frazier filed his motion before sentencing, he only needed to show "good cause" to be entitled to withdraw his plea.
But there is a fundamental problem with the plea agreement that neither the majority nor the concurrence addresses, and it is critical. As the Court of Appeals noted, "The State of Ohio was not a party to the plea agreement and did not sign it." Frazier entered into the agreement with the understanding that he would not face charges in Ohio, but he was relying on a promise of conduct that was not made by a party to the agreement.
The KSC concluded that the ambiguity in the enforceability of the plea agreement was important when considering "good cause":
At oral argument, the State conceded two things. First, the defendant relied on the idea that his plea agreement was binding on Ohio authorities and, in making his decision, he believed that lack of prosecution was a certainty. Second, if the plea agreement is not binding on Ohio authorities, the defendant prevails on his motion to withdraw. If every party agrees that Frazier believed and relied on the idea of this agreement being absolutely binding on Ohio—and it may not be—it makes whatever communication [defense counsel] had with Frazier regarding who spoke to whom less important.
From these principles it can be derived that Frazier, contrary to his understanding, signed an agreement containing an important clause that might be binding on no one. While we do not need to conduct the full analysis today, there is a fog of uncertainty regarding whether Ohio authorities have a legally enforceable duty to honor this Kansas plea agreement. It probably would have been possible to obtain signatures from Ohio prosecutors; his codefendant's plea agreement had such signatures. But even then, it is unclear which—if any—Ohio prosecutor would have had authority to guarantee Frazier's protection from state and/or federal prosecution in Ohio. While the district court and the Court of Appeals focused on the fact that Frazier's attorney informed him that she had not spoken with Ohio officials, they paid no heed to the fact that the prosecutor and his attorney presented him with a contract that could be legally unenforceable against any prosecutor in Ohio.
This court has held that misinformation provided to a defendant, especially when that misinformation is memorialized in writing, constitutes grounds for withdrawal from the agreement.
The KSC concluded that the uncertainty in this case constituted "good cause" and therefore remanded with directions to allow Mr. Frazier to withdraw his plea.
Christina M. Kerls nd Kai Tate Mann won in State v. Coleman, No. 118,673 (Kan. April 10, 2019), obtaining a new probation revocation disposition hearing in a Saline County possession prosecution. When Mr. Coleman was sentenced, Kansas law provided that, upon probation revocation, intermediate sanctions were required unless the district court makes specific findings. Since Mr. Coleman was sentenced, the Kansas Legislature repealed the statute requiring intermediate sanctions and when Mr. Coleman's probation was revoked, the district court held that such sanctions were no longer available. The KSC held that the repeal should not apply retroactively:
When it was adopted, the language of (c)(12) operated as an effective date provision for the graduated sanctions statutory amendment enacted in 2013. Subsection (c)(12) did not express an intent for subsection (c)(9)(B) to operate retrospectively because (c)(9)(B) did not then exist. Subsection (c)(9)(B) was not adopted until July 1, 2017. Thus, (c)(12) is an effective date provision which cannot function as "clear language indicating the legislature intended" (c)(9)(B) to operate retrospectively.
Thus, we hold that the K.S.A. 2017 Supp. 22-3716(c)(9)(B) exception, which allows a trial court to revoke a probationer's probation without first imposing graduated sanctions if the probation was granted as a result of a dispositional departure, applies only to probationers whose offenses or crimes of conviction occurred on or after July 1, 2017. Coleman's offenses or crimes of conviction were all committed before July 1, 2017.
As a result, the KSC remanded with directions to give Mr. Coleman a new revocation disposition hearing.
It's not really a criminal matter, but we thought it was noteworthy that, in response to the inability to hold in-person arguments due to pandemic concerns, the KSC ordered its first remote argument by Zoom on Saturday, April 11, 2020 as listed here. The COA has historically experimented with remote arguments using different platforms and to varying degrees of success. The pandemic is obviously forcing courts to consider new technologies to deal with current demands. It will be interesting to see how this practice develops this year.
[Update: here is a link to the Youtube recording of this argument.]
[Update: here is an order for the COA first argument by Zoom as well, set for May 12, 2020.]
Here is the Governor's press release announcing that she has appointed Kenyan J. (KJ) Wall Jr. of Lawrence to fill a vacancy on the Kansas Supreme Court created by the retirement of Chief Justice Lawton Nuss. Wall, a KU Law graduate, currently is a partner with the Forbes Law Group.
[Update: here is a court press release indicating that Justice Wall will be sworn in on August 3, 2020.]
Michelle A. Davis won in State v. Downing, No. 116,629 (Kan. January 24, 2020), obtaining reversal of a Reno County burglary conviction. The state charged burglary of a dwelling, but did not provide testimony that the building entered met the definition of a dwelling. The owner of the building indicated that no one lived in it at the time and that there were no plans for someone to live in it or rent it. The state argued that the jury could infer the purpose of the building. The KSC held that proof that the building was a dwelling was an essential element of the offense:
K.S.A. 2018 Supp. 21-5807(a)(2) also supports a present-intent requirement to distinguish between a dwelling and a nondwelling structure, rather than simply using a building design approach. That statute makes burglary of a place illegal even if that place is "not a dwelling" and it gives examples where that crime can occur—enumerating building designs that would ordinarily be considered in the abstract as "intended for use as" habitations, such as manufactured homes and mobile homes. This strongly points to something else besides building design to differentiate dwelling from nondwelling burglaries.
We agree with the [COA] panel. Absent proof the place burgled was used as a human habitation, home, or residence, the statute's plain language requires a showing of proof that, someone had a present, subjective intent at the time of the crime to use the place burgled for such a purpose. And based on that, the sufficiency question in Downing's case turns on whether the evidence at trial, viewed in the light most favorable 11 to the State, was sufficient for "a rational fact-finder" to find that the farmhouse was "intended for use" as a human habitation, home, or residence when the crime occurred.
Reviewing the state's evidence with this test, the KSC held that the state not prove that the building was a dwelling at the time of the alleged entry.
Finally, the KSC rejected the state's request to have the case remanded with directions to resentence Ms. Downing for nonresidential burglary as a lesser-included offense. The KSC held that the state had failed to sufficiently argue the point:
The State claims the crime of burglary of a structure under K.S.A. 21-5807(a)(2) is a lesser included offense of burglary of a dwelling under K.S.A. 21-5807(a)(1), making remand appropriate. But this argument was not raised until the State's petition for review in our court. It should have been presented as an alternative argument to the lower courts. Because of that, we decline to address it on the merits. Adding to the State's difficulties, it failed to give any statutory analysis supporting its claim, which supplies yet another basis for declining to entertain the question at this late stage.
As a result, the KSC simply reversed the burglary conviction.
Michael P. Whalen and Krystle M.S. Dalke won in Littlejohn v. State, No. 115,904 (Kan. App. January 10, 2020)(unpublished), reversing the summary dismissal of motion pursuant to K.S.A. 60-1507. The COA had initially reversed, but the KSC granted the state's PR and held that a movant had to show exceptional circumstances to reach the merits of a successive motion. On remand from the KSC, the COA found that Mr. Littlejohn had shown such circumstances:
Here, while Littlejohn's previous attorneys recognized the importance of his mental capacity in the overall scheme of his admissions and culpability, his trial counsel did not raise the issue as a defense to the specific intent necessary to commit the crimes for which he was charged nor to further bolster his claim that Littlejohn was a victim who was compelled to participate in the crime through compulsion. He did not mention Littlejohn's low IQ at all during the trial, including opening and closing statements.
Littlejohn was 18 years old when the senseless and horrific murder for which he was convicted occurred. He was sentenced to life in prison plus months. With a diagnosis of mental retardation, charges based solely on an aiding and abetting theory, and a defense of compulsion we believe justice would be served by an evidentiary hearing to determine whether Littlejohn's trial counsel's performance was ineffective and whether Littlejohn was prejudiced by it. Littlejohn has met his burden. Accordingly, we find there are exceptional circumstances shown to allow Littlejohn to bring a successive K.S.A. 60-1507 motion. Therefore, we reverse and remand for a hearing on the issue of whether trial, appellate, and 60-1507 counsel were ineffective for failing to investigate or present Littlejohn's mental capacity defense. In doing so, we specifically express no opinion on the merits of such contentions.
[Update: the state did not file a PR and the mandate issue on February 19, 2020.]
Here is a link to the Governor's press release announcing Executive Order 20-01 creating a Court of Appeals Nominating Commission. Once upon a time, the Supreme Court Nominating Commission, created by the Kansas Constitution, served a screening role for both Kansas Supreme Court and Kansas Court of Appeals vacancies. But because the Court of Appeals is entirely a statutory creation, the Legislature can and did modify the selection process for judges of that court. Now the statute provides for the Governor to appoint someone (no nominating commission) with confirmation by the Kansas Senate. The last few vacancies were filled by this method.
Governor Kelly is choosing to use a nominating commission, who she will name. Other than that, the process would appear to look very similar to the Supreme Court nominating process. But, in contrast to the Supreme Court nomination process, Court of Appeals appointments will still have to be confirmed by the Kansas Senate.
Here is the Governor's press release announcing that she has appointed Stacey Donovan, Chief Public Defender from the Third Judicial District Public Defender Office in Topeka to fill a vacancy on the Seventh Judicial District Court created by the retirement of Chief Judge Peggy Carr Kittel:
“Stacey is a talented and accomplished public servant with a reputation of integrity and hard work,” Kelly said. “Her experience helping Kansans deal with legal problems and working to improve our criminal justice system makes her a valuable addition to the Douglas County bench.”
Congratulations and best wishes Judge Donovan!
Here is a press release announcing that the Supreme Court Nominating Commission has nominated the following persons to fill a vacancy on the Kansas Supreme Court created by the retirement of Chief Justice Nuss: Judge Thomas Malone of the Kansas Court of Appeals, Steven Obermeier, who works for the Kansas Attorney General's Office, and Kenyen "KJ" Wall, a partner in the Forbes Law Group, LLC, of Overland Park.. The Governor has 60 days to name a person from this list.
[Update: here is a blog post reporting that the Governor selected Kenyen "KJ" Wall from this list.]
Hope Faflick Reynolds and Michelle A. Davis won in State v. Rodrigo Gonzalez, No. 120,179 (Kan. App. December 27, 2019), obtaining a remand in a Sedgwick County probation revocation proceeding. The primary issue was whether the Due Process Clause requires competency at a revocation hearing. Mr. Gonzalez had a competency evaluation prior to pleading guilty and receiving probation. When the state sought revocation, circumstances arose that implicated Mr. Gonzalez' competency at the probation revocation stage. The district court held that it did not believe that it could evaluate competency after a conviction. The COA had to decide whether the Due Process Clause applied at that stage:
Against that backdrop, the question remains whether the State may revoke the probation of a convicted felon who is not mentally competent at the time of the revocation hearing. Neither the United States Supreme Court nor the Kansas Supreme Court has addressed the issue. Competency for due process purposes entails "the capacity to understand the nature and object of the proceedings," to consult with a lawyer, and to assist in presenting a defense. Drope v. Missouri, 420 U.S. 162 (1975). Although the definition of competency has been enunciated in criminal cases, it is not exclusive to those proceedings. Given the liberty interest at stake in a revocation hearing, the near ineluctable answer to the question we have posed must be in the negative.
Assuming a probationer has no constitutional due process right to a lawyer in a given hearing, he or she would bear the burden of representing himself or herself. By definition, an incompetent probationer could not do so. To state the obvious, someone who doesn't understand what's going on can't very well participate in any meaningful way. The statutory right to a lawyer is largely beside the point in assessing the constitutional due process protections that must be extended to probationers facing revocation. Constitutional rights set a floor that a state may exceed but cannot sink below. Moreover, as we discuss momentarily, legal representation is not really an adequate due process substitute for competency in this context.
Because the district court had refused to consider Mr. Gonzalez' competency at all, the COA remanded for a retrospective competency evaluation. The COA pondered what the remedy might be if Mr. Gonzalez was not competent for revocation proceedings:
So, do the district courts have the authority to order Gonzalez or someone similarly situated restored to mental competence in advance of a probation revocation hearing even if restoration required his involuntary commitment to a mental health facility for some period? We suppose they do. Gonzalez has a significant liberty interest at stake—upon revocation, he has to serve 52 months in prison. The restrictions on his liberty in prison are manifestly greater than those he would experience on probation. As we have found, the Due Process Clause requires him to be competent when the State seeks to revoke his probation. There are, then, two logical dispositions: The district court can either order reasonable steps to restore a probationer's mental competence or preclude the State from moving forward with the revocation, in effect creating a defense of incapacity.
Finally, the COA recognized that it could be a paradoxical situation when a person might be held form months for competency evaluation before getting a short intermediate sanction:
We have reservations about how a probationer's due process right to be competent at a revocation hearing intersects with those lesser sanctions, particularly a two- or three-day jail stay. There is a certain incongruence in suggesting incompetent probationers can be or should be involuntarily committed for months of treatment to render them competent for a hearing to determine whether they should spend a few days (or even 60 days) in jail as punishment for violating a condition of their probation. We posed that incongruity to the lawyers during oral argument and did not have our concerns allayed. This constitutional conundrum, however, invites no immediately obvious solution—that's what makes it a conundrum, after all—so we held no real expectation that the jurisprudential fog might lift during oral argument.
This case leaves open other questions that occasionally might come up regarding whether competency could ever be relevant at other post-conviction proceedings, like direct appeal or habeas.
[Update: the state did not file a PR and the mandate issue on February 3, 2020.]
James M. Latta won in State v. Gibson, No. 120,657 (Kan. App. December 20, 2019), vacating an upward dispositional departure in a Geary County identity theft and perjury prosecution. Mr. Gibson fell into a presumptive probation category, but the district court imposed prison based on its finding that the Mr. Gibson's use of his brother's identification information resulted in his brother's arrest in another state, which it found to be greater than typical harm. The COA agreed that this factor was not an appropriate aggravating factor:
Our case fits the rule laid out in [State v. Favela, 259 Kan. 215, 911 P.2d 792 (1996)],and [State v. Martin, 279 Kan. 623, 112 P.3d 192 (2005)]. There's a statutory mitigating factor when "[t]he degree of harm or loss . . . was significantly less than typical." K.S.A. 2018 Supp. 21-6815(c)(1)(E). But there's no counterpart in the statutory aggravating factors for greater harm than normal. As our Supreme Court said in Martin, "Valid unlisted factors . . . do not have counterparts included in a statutory list." The district court's chosen factor—that the harm was greater than normal—has a counterpart in the statutory list. So the converse of the statutorily listed item, relied on here by the district court, is not a valid departure factor since it is not found in the statute.
Because the departure factor used was not appropriate, the COA reversed and remanded for resentencing.
