Friday, June 26, 2020

Statutory rape still requires proof of voluntary act

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.]

Saturday, June 13, 2020

Justice Beier to retire

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.]

Friday, June 12, 2020

Must inform defendant of denial of motion to start appeal time

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.]