Recent Decisions and Hot Issues: Criminal Cases

RECENT DECISIONS AND HOT ISSUES: CRIMINAL CASES

Cases: February 1, 2020-February 1, 2021

The following are summaries of case highlights from opinions filed in the last 12 months by the Kansas Supreme Court or the Kansas Court of Appeals. They have been prepared by staff attorneys for the two courts and are not to be used as an authoritative reference regarding the cases described. Only the portion of each case related to the topic noted is discussed. You are encouraged to read the entire case before relying upon it. The effect of a petition for review: Pending determination of the Supreme Court on a petition for review and during the time in which a petition for review may be filed, an opinion of the Court of Appeals is not binding on the parties or on the district courts. If a petition for review is granted, the decision or opinion of the Court of Appeals has no force or effect, and the mandate will not issue until disposition of the appeal on review. If review is denied, the decision of the Court of Appeals is final as of the date of the denial. A denial of a petition for review expresses no opinion of the Supreme Court on the merits of the case. See Kan. Sup. Ct. R. 8.03

AFFIRMATIVE DEFENSES

SELF-DEFENSE IMMUNITY. The State charged Dukes with voluntary manslaugh- ter, alleging he acted with an honest but unreasonable belief that deadly force was justified during a fatal confrontation in a parking lot. Dukes moved for immunity from prosecution under K.S.A. 21-5231; the district court granted his motion and dismissed the case. On appeal, the Court of Appeals affirmed, finding the district court appropriately considered whether the State had established probable cause that Dukes' use of deadly force was not legally justified. State of Kansas v. Leon A. Dukes Jr., __ Kan. App. 2d __, 2021 WL 520052 (Feb- ruary 12, 2021). SELF-DEFENSE—DUTY TO INSTRUCT JURY. A trial court's failure to instruct a jury on the law of self-defense requires reversal of the defendant's first-degree premeditated murder conviction if the defendant and the victim were alone at the time the defendant

1 shot the victim and physical evidence does not render implausible the defendant's account claiming self-defense. State v. Keyes, ___ Kan. ___, 472 P.3d 78 (Sept. 11, 2020). FIRST AMENDMENT AS A DEFENSE. Arlando Trotter was convicted of operating a club without an entertainment establishment license, in violation of a Wichita city ordinance. Trotter appealed, arguing the ordinance was an unconstitutional prior restraint of his First Amendment free speech rights. The Court of Appeals affirmed. The ordinance constituted a valid time, place, and manner restriction of speech as it regulated when and how the club could operate, not what music is could play. Nor was the ordinance a prior restraint. The licensing process included adequate safeguards, including a list of content-neutral rea- sons for denial of an application and an appeal process, to prevent arbitrary enforcement. City of Wichita v. Arlando Trotter, __ Kan. App. 2d __, 475 P.3d 365, 2020 WL 5740895 (Sept. 25, 2020), petition for rev. filed (Oct. 26, 2020), petition for rev. denied (Jan. 21, 2021). INSANITY DEFENSE. In 2018, the Kansas Supreme Court reaffirmed its longstanding ruling that the Kansas Legislature's adoption of the mens rea approach for the insanity defense—rather than the M'Nagten rule—does not violate due process. The United States Supreme Court granted certiorari. In a 6-3 decision, the Court agreed, holding that due process does not require a state to adopt an in insanity test that turns on a defendant's ability to recognize the immorality of the crime committed. Moreover, no insanity rule in this country's heritage or history was ever so settled as to tie a state's hands centuries later. Kahler v. Kansas, 589 U.S. ___, 140 S. Ct. 1021, 206 L. Ed. 2d 312 (Mar. 23, 2020).

SELF-DEFENSE IMMUNITY. To resolve a pretrial motion for immunity under Kan- sas' self-defense statutes, a trial court must first make factual findings drawn from the parties' stipulations or evidence received at a hearing. Then, the court must determine whether the State demonstrated probable cause—i.e., "the facts as found by the district court are sufficient for a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of defendant's guilt despite the claim of justified use-of-force immunity." State v. Collins, 311 Kan. 418, 461 P.3d 828, 835 (Apr. 24, 2020); State v. Thomas, 311 Kan. 403, 461 P.3d 149 (Apr. 24, 2020).

APPELLATE PROCEDURE

REVIEW OF DEPARTURE SENTENCE. The standard of appellate review for decisions granting or denying sentencing departure based on nonstatutory factors follows a three-part framework: (1) determine whether the sentencing court's nonstatutory factor can be a mitigating factor as a matter of law under K.S.A. 2019 Supp. 21-6815(c); (2) determine

2 whether the nonstatutory factor's existence is supported by the record; and (3) determine whether the sentencing court acted reasonably when it concluded there was a substantial and compelling reason to depart in a particular case based on the nonstatutory factor, either by itself or collectively with other factors cited by the sentencing court. State v. Morley, __ Kan. __, __ P.3d __, 2021 WL 299625 (Jan. 29, 2021). PLEA WITHDRAWAL. When an appellate court determines a district court abused its discretion by basing the denial of a motion to withdraw plea on an error of law, the case must be remanded to the district court with directions to apply the correct standard. The error is not amenable to harmless-error analysis. State v. Herring, __ Kan. __, 474 P.3d 285 (Oct. 16, 2020). CUMULATIVE ERROR. Aggravated battery conviction reversed due to cumulative harmful effect of prosecutorial error and jury instruction error. Cumulative error may occur when 2 or more individually harmless errors compound on each other. Where an instruction was erroneous because it did not communicate the requisite culpable mental state, and a prosecutor's improper comments invited the jury to make emotional assessment of whether the defendant's conduct was "okay," thus increasing jury uncertainty about the required mental state, the errors combined to be cumulatively reversible. State v. Thomas, 311 Kan. 905, 468 P.3d 323 (Jul. 24, 2020). CRIMINAL LAW

SUFFICIENCY OF THE EVIDENCE. Matthew Allen Olsman appealed from his convictions and sentence for attempted rape and kidnapping. The Kansas Court of Appeals affirmed the attempted rape conviction but reversed the kidnapping conviction because the underlying conduct was incidental to and inherent in the conduct supporting his attempted rape conviction. Judge Warner dissented in part. State of Kansas v. Matthew Allen Olsman, __ Kan. App. __, 473 P.3d 937, 2020 WL 5265561 (Sep. 4, 2020), petition for rev. filed (Oct. 5, 2020), petition for rev. denied (Feb. 2, 2021). DOUBLE JEOPARDY

MULTIPLICITY. Where a defendants convictions for attempted robbery and attempted distribution of a controlled substance are predicated on the same overt act—i.e., the overt act toward commission of aggravated robbery was the attempt to possess a controlled substance—the convictions are not multiplicitious. Convictions based on different statutes

3 may be multiplicitious, but only if the statutes upon which the convictions are based con- tain an identity of elements. State v. George, 311 Kan. 693, 466 P.3d 469 (Jun. 26, 2020). DRIVING UNDER THE INFLUENCE

LICENSE SUSPENSION-LEGALITY OF POLICE ENCOUNTER. On judicial review of an administrative order suspending a driver's license, the reviewing court may set aside the suspension order if the driver demonstrates the law enforcement encounter underlying the suspension proceeding was unlawful. Jarvis v. Kan. Dep't of Revenue, __ Kan. __, 473 P.3d 869 (Oct. 9, 2020). PRIOR MISSOURI DWI. Jessica Myers was charged with felony DUI based on prior Missouri convictions for DWI. The district court held Myers' DWIs prohibited a broader range of conduct than DUI and struck them from her criminal history. Effective July 1, 2018, the Legislature enacted factors for determining whether an out-of-state conviction is comparable to DUI and can therefore be used to elevate a DUI charge to a felony. One of the factors requires courts to consider whether the out-of-state offense prohibits "similar conduct" to DUI. A majority Court of Appeals panel held the "similar conduct" factor must be analyzed using an identical-to-or-narrower-than rule to avoid violating Apprendi and affirmed the district court. The dissent and other panels disagree with the holding. E.g., State v. Mejia, ___ Kan. ___, 466 P.3d 1217 (Kan. App. 2020). State of Kansas v. Jessica Lynn Myers, __ Kan. App. 2d __, 475 P.3d 1256, 2020 WL 5849370 (October 2, 2020), petition for rev. filed (Oct. 26, 2020), petition for rev. granted (Jan. 28, 2021). PRIOR OUT-OF-STATE CONVICTIONS. Dwayne Lynn Patton was convicted of DUI with three or more prior DUI convictions. The Court of Appeals determined that the district court correctly relied on the sentencing scheme in effect at the time of sentencing— not the scheme in effect when the offense was committed—to enhance Patton's sentence with his previous out-of-state DUI convictions State v. Patton, __ Kan. App. __, 475 P.3d 14, 2020 WL 5491848 (Sept. 11, 2020), petition for rev. filed (Oct. 13, 2020), petition for rev. granted (Jan. 28, 2021). SUBSTANTIAL COMPLIANCE WITH IMPLIED CONSENT STATUTE. James Fisher was arrested for driving under the influence. An officer provided Fisher with implied consent advisories using a DC-70 form with a revision date of February 2016. Fisher declined to take a test and the officer applied for, and received, a warrant for a blood draw. Fisher's license was suspended, and he appealed. On appeal, the Court of Appeals held that the officer substantially complied with the implied notice statute even though the DC-70 omitted items that were found to be unconstitutional by the Kansas Supreme Court.

The Court of Appeals also held that the implied consent advisories use of the word "requires" is not unduly coercive in context. Fisher v. Kansas Department of Revenue, 58 Kan. App. 2d 421, 471 P.3d 710 (July 17, 2020), petition for rev. filed (Aug. 14, 2020). LICENSE SUSPENSION—STATUTORY AUTHORITY & DUE PROCESS. Morris Johnson's driving privileges were suspended after failing a breath test following a single-vehicle, noninjury accident in January 2016. On appeal, the Court of Appeals held the officer had statutory authority to request the test based on evidence of impairment including the accident. The panel also reiterated the general inapplicability of Fourth Amend- ment principles in administrative driver's license suspension cases, found no procedural due process violation since the administrative and judicial review were sufficient, and concluded Johnson made no cognizable claim of a substantive due process violation based on being read implied consent advisories later declared unconstitutional. Johnson v. Kansas Department of Revenue, 58 Kan. App. 2d 431, 472 P.3d 92 (July 17, 2020), petition for rev. filed (Aug. 17, 2020). JURISDICTION & SUBSTANTIAL COMPLIANCE. Enrique Sandate's driving privileges were suspended after refusing a breath test upon his arrest for DUI. The arresting officer provided Sandate with implied consent advisories using a DC-70 form revised in February 2016 that omitted items found to be unconstitutional. On appeal, the Court of Appeals held an arresting officer's non-compliant certification form does not deprive the KDOR of subject-matter jurisdiction. Further, the Court of Appeals held the officer substantially complied with the implied consent statute because the omitted provisions were no longer essential components of the statute, and that using "requires" is not unduly coercive in context. Sandate v. Kansas Department of Revenue, 58 Kan. App. 2d 450, 471 P.3d 700 (July 17, 2020). LEGALITY OF BREATH TEST. In May 2018, Scot Foster was arrested for driving under the influence. An officer administered a breath test on Foster without first providing him with implied consent advisories. Foster moved to suppress the evidence. The district court denied Foster's motion, holding that a statutory amendment effective July 2018 allowed the officer to take Foster's breath sample as a search incident to arrest. The Court of Appeals reversed, holding that the officer was required to provide the advisories because Foster was arrested before July 2018. But the Court recognized that breath tests may be administered as a search incident to lawful arrest for drunk driving in cases after July 1, 2018. City of Colby v. Foster, 58 Kan. App. 2d 464, 471 P.3d 26 (July 17, 2020). CERTIFICATION OF DC-27 FORM. The Kansas Department of Revenue appealed the district court's invalidation of a DC-27 because the attesting officer certified the form with an electronic signature prior to completing the form. The Court of Appeals reversed,

5 holding that "signing" a document can encompass more than the physical act of manually writing a person's name and includes the use of an electronic signature. Kyle T. Brungardt v. Kansas Department of Revenue 58 Kan. App. 2d 284, 468 P.3d 791, (June 12, 2020), petition for rev. filed (Jul. 13, 2020), petition for rev. denied (Nov. 24, 2020). PRIOR DUI CONVICTIONS. In 2019, the legislature amended the statute defining whether an out-of-state DUI may serve as a predicate conviction to establish a felony DUI. An out-of-state conviction qualifies if it is "comparable" to the Kansas DUI statute, and it may be comparable even if it prohibits a broader range of conduct than the Kansas statute. A majority of the reviewing panel distinguished its holding from State v. Gensler, 308 Kan. 674 (2018), which had held that under the previous DUI statute, a prior conviction under a municipal ordinance must have prohibited the same as or narrower conduct than the Kansas statute. A dissent argued that even with the statutory amendment, Gensler still controlled. State v. Mejia, 58 Kan. App. 2d 229, 466 P.3d 1217 (May 22, 2020), petition for rev. filed (Jun. 29, 2020), petition for rev. denied (Sept. 29, 2020).

STANDARD OF REVIEW. The Kansas Department of Revenue suspended Jerry Strickert's driving privileges after finding that he refused to submit to a breath test. The district court upheld the suspension. On appeal, the Kansas Court of Appeals affirmed holding there was substantial competent evidence supporting the district court's factual findings and that those findings supported legal conclusions that the officer possessed reasonable suspicion to stop Strickert and to extend the stop to conduct a field sobriety test. Strickert's performance on the field sobriety tests gave the officer reasonable grounds to request a breath test. Jerry Strickert v. Kansas Department of Revenue, 58 Kan. App. 2d 1, 462 P.3d 649 (March 13, 2020), petition for rev. filed (Apr. 13, 2020), petition for rev. denied (Aug 31, 2020). ELEMENTS OF CRIMES

DISTRIBUTION OF A CONTROLLED SUBSTANCE. A conviction for distribution of a controlled substance under K.S.A. 2019 Supp. 21-5705 requires proof the defendant possessed the substance. State v. Crosby, __ Kan. __, 479 P.3d 167, 2021 WL 137562 (Jan. 15, 2021). POSSESSION OF A FIREARM—CONSTITUTIONALITY. Alva B. McKinney appealed his conviction of criminal use of weapon, challenging the constitutionality of the

6 statutory provision prohibiting a person who is or has been mentally ill and civilly committed from possessing a firearm. The Court of Appeals affirmed McKinney's conviction, rejecting his constitutional challenges. State v. McKinney, __ Kan. App. 2d __, __ P.3d __, 2021 WL 300469 (Jan. 29, 2021). FELONY FLEEING OR ELUDING A POLICE OFFICER. A driver fleeing from police officers "is attempting to elude capture for the commission of any felony" when the driver subjectively intends to avoid capture for a felony. State v. Davis, __ Kan. __, 474 P.3d 722, 2020 WL 6219601 (Oct. 23, 2020). FELONS—WEAPON POSSESSION. The phrase "any other dangerous or deadly cutting instrument of like character" in the statute that prohibits convicted felons generally from possessing "a dagger, dirk, switchblade, stiletto, [or] straight-edged razor" is unconstitutionally vague. The phrase does not provide a sufficiently objective basis for determining what items were prohibited. State v. Harris, 311 Kan. 816, 467 P.3d 504, No. 116,515, (Jul. 17, 2020). CRIMINAL POSSESSION OF A WEAPON BY A CONVICTED FELON. K.S.A. 21-6304(c)(1) defines "knife" as a "dagger, dirk, switchblade, stiletto, straight- edged razor or any other dangerous or deadly cutting instrument of like character." A fold- ing knife with a four-inch blade that measures nine inches when open was a knife under the statute because the blade could be used to inflict injury and had at least one sharp edge capable of being used as a weapon. State v. Lucas, 58 Kan. App. 2d 34, 462 P.3d 1208 (Mar. 27, 2020); But see State v. Harris, 311 Kan. 816, 2020 WL 4035028 (Jul. 17, 2020) (holding K.S.A. 21- 6304 is unconstitutionally vague).

BREACH OF PRIVACY—REASONABLE EXPECTATION OF PRIVACY. To determine whether someone has a reasonable expectation of privacy under the statute criminalizing a breach of privacy, a court considers whether the person subjectively be- lieves he or she has an expectation of privacy in the situation and whether a reasonable person in the same or similar circumstances would have an expectations of privacy. State v. Hayes, 57 Kan. App. 2d 895, 462 P.3d 1195 (Mar. 6, 2020), petition for rev. filed (May 18, 2020), petition for rev. denied (Sept. 29, 2020).

EVIDENCE

JAILHOUSE RECORDINGS. A police detective's testimony may supply foundation for the admission of jailhouse recordings maintained by a third-party service provider. In

7 this case, the detective was a Sheriff's office employee while the defendant was incarcerated; was the sheriff's office's "custodian" for the third-party provider's system, charged with insuring it functioned properly and checking calls for abuse; and received thorough training on the system from the provider. State v. Meggerson, __ Kan. __, 474 P.3d 761, 2020 WL 6219692 (Oct. 23, 2020). HEARSAY; INTERPRETERS. During Geldy Gutierrez-Fuentes' criminal trial, wit- nesses for the State testified regarding the victim's statements as made through an interpreter. Gutierrez-Fuentes unsuccessfully challenged that testimony as hearsay because the interpreter was not available to testify. On appeal, the Court of Appeals adopted the language conduit rule, determined the circumstances satisfied the relevant factors, and ruled the challenged testimony was not inadmissible hearsay. State v. Gutierrez-Fuentes, __ Kan. App. 2d __, 477 P.3d 1041, 2020 WL 6930594 (Nov. 25, 2020), petition for rev. filed (Dec. 28, 2020). APPELLATE FINDING OF FACT; CUSTODIAL STATUS In a direct appeal, Jason Floyd Castle challenged the classification of two prior convictions as person felonies in his criminal history. The State argued that Castle's release from prison rendered the appeal moot. In support, the State filed a notice of change in custodial status and a written certification from the Kansas Department of Corrections record custodian showing Castle had been released from custody. Noting that Castle did not challenge the accuracy of the information in the certification, the Court of Appeals held that the written certification was reliable evidence that may support appellate fact-finding on the matter of custody. And because Castle made no claim that his appeal, which challenged his criminal history score, would impact his current or future rights, the Court of Appeals dismissed the appeal as moot. State v. Castle, __ Kan. App. 2d __, 477 P.3d 266, 2020 WL 6533249 (Nov. 6, 2020), petition for rev. filed (Dec. 11, 2020). CELLULAR PHONE LOCATION DATA. A lay witness who input cellular phone location data, which itself had been admitted into evidence, into a computer mapping program, was competent to testify that a defendant's phone connected to particular cellular phone towers at particular times and from particular directions. The witness' map also was admissible. State v. Timley, No. 120,414, 311 Kan. 944, 469 P.3d 54 (August 7, 2020). EVIDENCE OF OTHER CRIMES OR CIVIL WRONGS. A jury convicted Ste- ven Brown of multiple sex crimes involving a minor and intimidation of a witness. At trial, the district court admitted evidence, under K.S.A. 60-455, showing that Brown committed two property crimes following domestic arguments as a possible explanation for why the minor delayed reporting the sexual abuse—fear of Brown's violent tendencies. The Court of Appeals held that admission of the K.S.A. 60-455 evidence was reversible error because

8 the risk of undue prejudice substantially outweighed the evidence's probative value and the limiting instruction governing use of the evidence was inadequate. State v. Brown, 58 Kan. App. 2d 599, 473 P.3d 910 (Aug. 21, 2020), petition for rev. filed (Sept. 18, 2020), petition for rev. denied (Jan. 29, 2021). SINGLE LARCENY DOCTRINE. The single larceny doctrine is a rule of evidence, not a rule of law, which permits but does not require the trier of fact to consider a series of larcenies, embezzlements, or other thefts to be the result of a single larcenous scheme. A series of larcenous acts, regardless of the amount and value of the separate parcels or arti- cles taken, and regardless of the time occupied in the performance, may and will constitute, in contemplation of law, a single larceny, provided the several acts are done pursuant to a single impulse and in execution of a general fraudulent scheme. State v. Henry, 57 Kan. App. 2d 846, 461 P.3d 849 (Feb. 28, 2020), petition for rev. filed (Mar. 3, 2020), petition for rev. denied (Aug. 31, 2020).

HABEAS CORPUS

K.S.A. 60-1501—IMPROPER VENUE. Rheuben Johnson appealed from district court's dismissal of his pro se K.S.A. 60-1501 petition, which he filed in the wrong county. The Court of Appeals reversed, concluding the district court should have transferred the petition to the district court in the county where the petitioner was confined. Johnson v. Zmuda, __ Kan. App. 2d __, __ P.3d __, 2021 WL 300367 (Jan. 29, 2021). JURISDICTION

OUT-OF-STATE CRIMINAL CONDUCT. Finding a lack of jurisdiction, the district court dismissed Ivan Rozell's criminal charges for making false information and committing a fraudulent insurance act. The State appealed, arguing that the district court had proximate result jurisdiction to prosecute Rozell because, while the alleged criminal acts occurred outside Kansas, the negative consequences of the acts occurred within Kansas. The Court of Appeals affirmed the dismissal because proximate result jurisdiction requires the statutes establishing the criminal charges to consider negative consequences in defining the

9 criminal acts and the statutes establishing making false information and committing a fraudulent insurance act did not do so. State of Kansas v. Ivan Rozell, 58 Kan. App. 2d 570,472 P.3d 612, (August 7, 2020), petition for rev. filed (Sept. 3, 2020), petition for rev. granted (Nov. 11, 2020). JURY INSTRUCTIONS

PREMEDITATION. A district court may instruct the jury that premeditation does not need to be present before a confrontation resulting in death begins, if the facts demonstrate the defendant could have formed premeditation after the confrontation began but before the final blow. When the instruction is given, the district court must also instruct the jury that "Premeditation requires more than mere impulse, aim, purpose, or objective. It requires a period, however brief, of thoughtful, conscious reflection and pondering—done before the final act of killing—that is sufficient to allow the actor to change his or her mind and abandon his or her previous impulsive intentions." State v. Stanley, No. 120,310, __ Kan. __, 478 P.3d 324 (Dec. 23, 2020); State v. Stafford, __ Kan. __, 477 P.3d 1027 (Dec. 23, 2020). QUESTIONS DURING DELIBERATION. A trial judge may answer a jury's ques- tion on a point of law by having court personnel deliver the court's written response to jury room. The practice is permitted by statute, and a defendant does not have right under either the state or federal constitutions to be present when the jury receives the response. State v. Harrison, 311 Kan. 848, 467 P.3d 477 (Jul. 17, 2020). PEREMPTORY CHALLENGES. A party may exercise one of its peremptory challenges before the jury panel is passed for cause, e.g., during voir dire. The statute governing peremptory challenges does not limit when a party may use a challenge; instead, the statute prohibits a court from requiring a party to use a peremptory challenge before a panel is passed for cause. State v. Williams, 58 Kan. App. 2d 409, 471 P.3d 17 (July 10, 2020), petition for rev. filed (July 30, 2020), petition for rev. denied (Nov. 24, 2020).

JURY INSTRUCTIONS—AIDING AND ABETTING. If a defendant is charged as an aider and abettor with both felony murder and multiple specific-intent crimes, it is error to instruct the jury that the defendant is "also responsible for any other crime committed in carrying out . . . the intended crime if the person could reasonably foresee the other crime as a probable consequence," in addition to being liable for the crime the defendant intended to aid. Such an instruction negates the mental-state element of specific

10 intent crimes. And with respect to homicides, the felony murder instruction—not the aiding and abetting instruction—provides the appropriate guidance to the jury. State v. Gonzalez, 311 Kan. 281, 460 P.3d 348 (Mar. 27, 2020).

JUVENILES

APPEALABLE ORDERS. After the Court of Appeals affirmed his adjudication in an earlier appeal, T.T. moved to modify his sentence with the district court. The district court denied the motion. The court of appeals dismissed the appeal, holding that the denial of a motion to modify sentence is not an appealable order under the Revised Kansas Juvenile Justice Code. In the Matter of T.T., __ Kan. App. 2d __, __ P.3d __, 2020 WL 7636091 (Dec. 23, 2020), petition for rev. filed (January 22, 2021). OFFENDER REGISTRATION

STRICT LIABILITY. Substantial compliance is not a defense to a defendant's failure to meet the registration requirements of the Kansas Offender Registration Act. Although the Act is remedial in nature, a substantial compliance defense—effectively permitting in- dividuals to avoid some of the Act's requirements—would undermine the Act's overall purpose. State v. Stoll, No. 117,081, __ Kan. __, __ P.3d __ 2021 WL 401300 (Feb. 5, 2021). STRICT LIABILITY. Before trial on his charge of failing to register under KORA, Daniel Earl Genson III moved to present a defense of mental disease or defect. Finding the violation was a strict liability crime, the district court precluded Genson from presenting the defense. Genson appealed his subsequent conviction. The Court of Appeals affirmed, concluding that applying strict liability for KORA violations did not violate Genson's substantive due process rights. Judge Atcheson dissented. State v. Genson, __ Kan. App. 2d __, __ P.3d __, 2020 WL 7413617 (Dec. 18, 2020), petition for rev. filed (Jan 21, 2021). NOTICE OF DUTY TO REGISTER. A court's untimely notice that a defendant must register under the Kansas Offender Registration act does not violate a defendant's due process rights where the defendant fails to demonstrate prejudice. On the facts of the case, the judge made the required findings to impose the registration requirement, and the defendant had a meaningful opportunity to be heard on the registration requirement. State v. Juarez, __ Kan. __, __ P.3d __ No. 118,543, (Aug. 28, 2020). OFFENDER REGISTRATION – MUNICIPAL COURT CONVICTIONS Asnake Adem was convicted in municipal court of sexual battery. His conviction was affirmed on appeal to the district court. As part of his sentence, the district court ordered

Adem to register as a sex offender pursuant to the Kansas Offender Registration Act (KORA). Adem appealed, arguing that he should not have to register for a municipal court conviction. The Court of Appeals affirmed, holding that KORA applies to municipal court convictions for offenses comparable to offenses in Chapter 21 requiring registration. City of Shawnee v. Adem, 58 Kan. App. 2d 560, 472 P.3d 123 (July 31, 2020), petition for rev. filed (Aug. 27, 2020), petition for rev. granted (Nov. 20, 2020). PLEAS

JUDICIAL BIAS. A district judge may not advocate for either party during plea nego- tiations. But the judge may emphasize a plea offer's benefits without engaging in improper advocacy. State v. Bowser, __ Kan. __, 474 P.3d 744, 2020 WL 6219621 (Oct. 23, 2020). VOLUNTARINESS OF PLEA. An evidentiary hearing is not always necessary to as- certain whether a defendant is sufficiently competent to make a voluntary plea, even if the evidence presented at such a hearing may include a current mental evaluation about a past mental condition. A mental evaluation is not necessarily dispositive of whether a plea swas knowingly and voluntarily made. The voluntariness of a plea can be determined only by considering all relevant circumstances surrounding it. State v. Adams, 311 Kan. 569, 465 P.3d 176 (Jun. 12, 2020).

POST-SENTENCING WITHDRAWAL. After Aaron Terning pleaded to aggravated kidnapping and rape, the district court sentenced Terning to a controlling term of 330 months in prison and 36 months of postrelease supervision. Years later, Terning challenged the postrelease supervision period as an illegal sentence and moved to withdraw his pleas. The district court refused to permit Terning to withdraw his pleas. On appeal, the Court of Appeals affirmed, holding the district court did not abuse its discretion and concluding Terning's plea was knowingly and voluntarily made, despite the sentencing error in the postrelease supervision period. State v. Terning, 57 Kan. App. 2d 791, 460 P.3d 382 (Feb. 7, 2020), petition for rev. filed (Mar. 9, 2020), petition for rev. denied (Aug. 31, 2020). POSTCONVICTION MOTIONS

NEWLY DISCOVERED EVIDENCE. Kevin Skaggs filed a successive K.S.A. 60- 1507 motion attacking his conviction and sentence based on ineffective assistance of counsel. Skaggs alleged that his trial counsel and his first habeas counsel failed to introduce exculpatory evidence that would demonstrate he was actually innocent. The district court found that the evidence was not newly discovered as both counsels knew or should have known about the evidence, and therefore Skaggs was not entitled to an evidentiary hearing.

The Kansas Court of Appeals reversed, finding Skaggs was entitled to a limited evidentiary hearing to address whether his attorneys' failures to present the evidence constituted "newly discovered evidence" sufficient to satisfy a procedural actual innocence claim and excuse the motion's procedural defaults. Skaggs v. State, __ Kan. App. 2d __, __ P.3d __, 2020 WL 7086179 (Dec. 4, 2020), petition for rev. filed (Jan. 4, 2021). PROSECUTORIAL ERROR. George Lowell Brown, II, alleged in his second K.S.A. 60-1507 motion that his trial counsel was ineffective, among other things, for failing to object to alleged prosecutorial error during the State's closing argument in his 2009 trial. In analyzing Brown's prosecutorial error claim, the Kansas Court of Appeals held that, under the circumstances, an appellate court must apply the pre-2016 framework for analyzing prosecutorial misconduct claims. Brown v. State, __ Kan. App. 2d __, 475 P.3d 689, (Sep. 25, 2020), petition for rev. filed (Oct. 26, 2020) POSTCONVICTION MOTION FOR DNA TESTING. The statute governing postconviction DNA testing allows a person to file such a motion "at any time after conviction." A pre-sentencing motion for postconviction DNA testing is timely and the issue is ripe to address—i.e., a defendant does not have to wait until a sentence is pronounced to file such a motion or have it heard. State v. Williams, 58 Kan. App. 2d 409, 471 P.3d 17 (July 10, 2020), petition for rev. filed (Jul. 30, 2020), petition for rev. denied (Nov. 24, 2020).

NOTICE OF RIGHT TO APPEAL. Supreme Court Rule 134(a) requires a district court that rules on a motion when an affected party is not present—either in person or by the party's attorney—to immediately serve notice of the ruling. Substantial compliance with this rule is required before the time to file a notice of appeal on a denial of a postsen- tencing motion to withdraw plea begins to run. The Due Process Clause, however, does not require a district court to inform a defendant of the right to appeal or the statutory time limit to appeal. Standing alone, a district court's failure to inform a defendant of this information does not entitle a defendant to an out-of-time appeal. State v. Maberry, 58 Kan. App.2d 215, 465 P.3d 191 (May 22, 2020).

POSTCONVICTION DISCOVERY STANDARD. Postconviction discovery sought by a defendant should be allowed when the defendant shows that it is necessary to protect substantial rights. To get discovery, the defendant must make a good-cause showing

13 by identifying the specific subject matter for discovery about those matters is necessary to protect substantial rights. State v. Mundo-Parra, 58 Kan. App. 2d 17, 462 P.3d 1211, (Mar. 27, 2020), petition for rev. filed (Apr. 27, 2020), petition for rev. denied (Oct. 16, 2020).

PREEMPTION

FEDERAL PREEMPTION OF STATE CRIMINAL LAW. Consistent with Kan- sas v. Garcia, 589 U.S. ___, 140 S. Ct. 791, 206 L. Ed. 2d 146 (March 3, 2020) (reversing and remanding State v. Garcia, 306 Kan. 1113, 401 P.3d 588 [2017]), the Kansas Supreme Court held that prosecution under Kansas statutes for identity theft and making a false information were not federally preempted by the Immigration Reform and Control Act of 1986 (IRCA). State v. Garcia, 311 Kan. 551, 465 P.3d 162 (June 12, 2020).

PROBATION REVOCATION

RETROACTIVE APPLICATION OF AMENDMENTS. Dominguez pled guilty to crimes committed in April 2017 and was placed on probation. On July 1, 2019, the Leg- islature removed the 120-day and 180-day prison sanction from the intermediate sanction- ing scheme. Using the 2019 amendment, the district court revoked Dominguez' probation for her second violation. She appealed, arguing the 2019 amendment could not be retroactively applied to her because she committed her crimes before the effective date of the amendment. The panel agreed, finding the Legislature did not indicate the amendment should be applied retroactively and applying it retroactively would prejudicially affect Dominguez' substantive rights. State v. Dominguez, __ Kan. App. 2d. __, 473 P.3d 932, 2020 WL 5079777 (Aug. 28, 2020). RIGHT AGAINST SELF-INCRIMINATION

FIFTH AMENDMENT PRIVILEGE OF WITNESS. At his trial for sexual offense against a child, the defendant attempted to compel testimony from the victim's father, who had previously been convicted of sexual offenses against the same child. The district court allowed the father to invoke his Fifth Amendment privilege against self-incrimination and did not compel his testimony. This was error; the father could not invoke the privilege

14 because he could not be prosecuted for crimes related to charges the State previously dismissed as part of father's plea bargain. State v. Contreras, 58 Kan. App. 2d 255, 467 P.3d 522 (May 29, 2020), petition for rev. filed (Jun. 29, 2020), petition for rev. granted (Aug. 27, 2020).

JUVENILE INTERROGATION. When the accused is a juvenile, courts must exercise the greatest care in determining the validity of a confession or inculpatory statement made to law enforcement. A court not only must make sure the statement was not coerced but also that it was not the product of ignorance of rights or of adolescent fantasy, fright, or despair. Statements made to a juvenile that are likely to mislead about the nature and legal consequences of a custodial interrogation have the potential to render a confession or inculpatory statement involuntary. State v. R.W. 58 Kan. App. 2d 135, 464 P.3d 27 (Apr. 10, 2020), petition for rev. filed (May 27, 2020), petition for rev. denied (Aug. 26, 2020).

SEARCHES & SEIZURES

CONSENT. An individual's non-verbal conduct may constitute consent to search if the totality of the circumstances reflect the consent is "clear and unequivocal." State v. Daino, __ Kan. __, 475 P.3d 354, 2020 WL 6685608 (Nov. 13, 2020). EMERGENCY AID EXCEPTION. Brittany Smith appealed her convictions for possession of methamphetamine, possession of paraphernalia, and driving under the influence, claiming the district court should have suppressed evidence obtained when police officers searched her purse without a warrant. The Court of Appeals affirmed the suppression ruling, finding that under certain circumstances, the emergency-aid exception—which is typ- ically examined in the context of officers entering a residence without a warrant—permits a search of personal belongings so long as (1) the officer has an objectively reasonable basis to believe the person is seriously injured or imminently threatened with serious injury; and (2) the manner and scope of any ensuing search is reasonable. State of Kansas v. Brittany R. Smith, __ Kan. App. 2d __, 476 P.3d 847, 2020 WL 6244096 (Oct. 23, 2020), petition for rev. filed (Nov. 20, 2020). OWNER-IS-THE-DRIVER ASSUMPTION. Consistent with Kansas v. Glover, 589 U.S. ___, 140 S. Ct. 1183, 206 L. Ed. 2d 412 (April 6, 2020) (reversing and remanding State v. Glover, 308 Kan. 590, 422 P.3d 64 [2018]), the Kansas Supreme Court held that an investigative traffic stop made after the officer ran the vehicle's license plate and learned that the registered owner's license had been revoked was reasonable under the Fourth Amendment, provided that the officer lacked any reason to know that someone other than

15 the owner was driving. Under the stipulated facts in that case, there was no information known to the officer that would rebut that reasonable inference. State v. Glover, 311 Kan. 563, 465 P.3d 165 (June 12, 2020).

REASONABLE SUSPICION. Discrepancies in travel plans may be used as objective reasonable suspicion factors, depending on the nature of the discrepancy. As with unusual travel plans, inconsistencies in information provided to an officer during a traffic stop may give rise to reasonable suspicion. Discrepancies that may arouse suspicion include an individual's internally inconsistent statements and the inconsistencies between a passenger and driver's statements about travel plans. Also, because air freshener and other strong fragrances are known for masking drug odor, air freshener and other strong fragrances may contribute to a police officer's reasonable suspicion. State v. Arceo-Rojas, 57 Kan. App. 2d 741, 458 P.3d 272 (Feb. 7, 2020), petition for rev. filed (Mar. 9, 2020), petition for rev. granted (Aug. 27, 2020).

PUBLIC SAFETY STOP. An officer exceeded the scope of a public safety stop when he kept the defendant's identification to run a warrant check after the defendant assured him she did not need assistance and the officer had not seen any sign of criminal activity. Since officer's subsequent discovery of an outstanding warrant was the product of the illegal seizure, and decision to run warrant check as part of public safety stop violated well- established Kansas law. The taint of the illegal seizure was not attenuated by discovery of the warrant, resulting in contraband discovered after the arrest being suppressed. State v. Ellis, 311 Kan. 925, 469 P.3d 65 (August 7, 2020). SENTENCING

CRIMINAL HISTORY. A defendant's prior out-of-state burglary conviction that occurred under a statute equally similar to both the person and non-person forms of burglary under Kansas law is scored as a non-person felony. Under the law at the time of conviction, the person-crime classification was dictated by the most similar Kansas crime. Since the person-version of the Kansas crime was not "more" comparable to the prior crime than the non-person version, the rule of lenity dictates that the prior crime be scored as a nonperson offense. State v. Gales, No. 119,302, __ Kan. __, 476 P.3d 412, 2020 WL 7086063 (Dec. 4, 2020). CRIMINAL HISTORY. Caesar K. Louis appealed the district court's inclusion of a prior criminal threat conviction in his criminal history, contending the conviction was unconstitutional. The Kansas Court of Appeals affirmed, holding that the legality of a sentence is controlled by the law in effect at the time of sentencing. At the time Louis had been sentenced in this case—using his conviction for reckless criminal threat to calculate his

16 criminal history—reckless criminal threat had not yet been declared unconstitutional for violating the First Amendment. State of Kansas v. Caesar K. Louis, ___ Kan. App. 2d ___, 476 P.3d 837, 2020 WL 6243249 (Oct. 23, 2020), petition for rev. filed (Nov. 23, 2020). HARD 50—JUVENILE OFFENDERS. Ronell Williams was 14 years old when he was convicted of two counts of premeditated first-degree murder. He filed a motion for habeas corpus relief challenging his hard 50 sentence as constitutionally disproportionate under the Eighth Amendment. After the district court dismissed Williams' motion as untimely and successive, the Court of Appeals reversed, holding: (1) the applicable constitutional protections are triggered regardless of whether a sentencing scheme is mandatory or discretionary; (2) Williams' hard 50 sentence is the functional equivalent of a life sentence without parole; and (3) Williams was deprived of the applicable constitutional guarantees because the sentencing court failed to fully consider his diminished culpability and height- ened capacity for change before imposing the hard 50 sentence. Williams v. State, No. 121,815, __ Kan. __, 476 P.3d 805 (Oct. 9, 2020), petition for rev. filed (Oct. 21, 2020), petition for rev. granted (Jan. 22, 2021). OUT-OF-STATE CONVICTION. Spencer Adams appealed from the denial of his motions to correct illegal sentence based on the alleged misclassification of his out-of-state convictions. On appeal, Adams argued he was entitled to the benefit of precedent issued after his direct appeal was final because the precedent was the product of a rehearing of a Kansas Supreme Court case that had been issued while Adams' direct appeal was still pending. The Court of Appeals disagreed, holding that Adams was not entitled to the benefit of the change in law after his direct appeal became final. State of Kansas v. Spencer Adams, ___ Kan. App. 2d ___, 476 P.3d 796, (Oct. 2, 2020), petition for rev. filed (Oct. 2, 2020), petition for rev. denied (Feb 1, 2021). CRIMINAL HISTORY. The criminal history score used to sentence Lucas Tarell Baker was based in part on a prior Missouri resisting arrest conviction being scored as a person felony. The Kansas Court of Appeals held that the amended statutory framework in K.S.A. 21-6811(e)(3)(B), changes which legislatively overruled State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), applied. This new framework requires a sentencing judge to compare the enumerated circumstances listed in the statute to the elements of the prior out-of-state conviction. In applying the new scheme, the Court of Appeals held that the district court correctly calculated Baker's prior Missouri conviction as a person felony in enhancing his sentence. State v. Baker, ___ Kan. App. 2d ___, 475 P.3d 24, (Sept. 18, 2020), petition for rev. filed (Oct. 16, 2020), petition for rev. denied (Feb. 3, 2021). COLLATERAL ATTACK. A statute that provides relief from a mandatory minimum term of imprisonment imposed in conjunction with life sentences in the event the "mandatory term of imprisonment" or statute authorizing it is found unconstitutional, does not

17 require a defendant be relieved from the requirement that he serve at least 40 years of his life sentence. The statute operates as a failsafe that applies only when the term of imprisonment or the statute authorizing it are found unconstitutional. The failsafe does not apply when the procedural framework for imposing the sentence—rather than the sentence itself—is held unconstitutional. State v. Coleman, ___ Kan. ___ 472 P.3d 85 No. 120,246, 2020 WL 5491851 (Sep. 11, 2020). CRIMINAL HISTORY—CLASSIFYING POST-KSGA OFFENSES. Tyler Lyon was sentenced as a criminal history score C based, in part, on a 2010 conviction in Kansas for aggravated burglary. Lyon appealed, arguing the 2010 conviction must be classified as a nonperson offense under the identical-or-narrower test in State v. Wetrich. The Court of Appeals affirmed, holding that a Kansas crime committed after the implementa- tion of the KSGA is properly scored as a person offense if it was classified as a person offense when committed and remained a person offense when the current crime was committed, even if the prior version is broader than the current version. State v. Lyon, 58 Kan. App. 2d 474, 471 P.3d 716 (July 24, 2020), petition for rev. filed (Aug. 19, 2020), petition for rev. denied (Nov. 24, 2020). CONCURRENT SENTENCES. While on probation for a felony, Jeremy Dunham was charged with committing various felony drug crimes in three cases. The district court imposed sentences in all three cases on the same day, ordering they run consecutive to each other by operation of law. Dunham appealed, arguing conflicting statutory authority regarding the court's obligation to impose consecutive sentences when a person on felony release commits new felonies. The Court of Appeals reversed in part, concluding that the district court was permitted but not required to impose consecutive sentences under the circumstances. State of Kansas v. Jeremy Michael Dunham, 58 Kan. App. 2d 519, 472 P.3d 604, (July 31, 2020). CRIMES ON FELONY BOND. While on felony bond, Rex C. Vaughn committed another felony and was convicted. The district court ran Vaughn's new sentence consecu- tively to his previous sentence. On appeal, Vaughn argued for application of the rule of lenity because K.S.A. 21-6604(f)(4) and K.S.A. 21-6606(d) were contradictory. He also argued that consecutive sentencing under K.S.A. 21-6606(d) was permissive, not mandatory. The Court rejected Vaughn's arguments, ruling that, absent a finding of manifest in- justice, the district court was required to impose consecutive sentencing. State v. Vaughn, 58 Kan. App. 2d 585, 472 P.3d 1139 (Aug. 14, 2020), petition for rev. filed (Sept. 11, 2020), petition for rev. denied (Feb. 2, 2021).

RESTITUTION—UNWORKABILITY. A district court abuses its discretion if it orders an indigent criminal defendant sentenced to life in prison without the possibility of

18 parole to pay restitution while acknowledging the restitution would not be paid. The Kansas Supreme Court distinguished this situation from cases such as State v. Holt, 305 Kan. 839, 843-44 (2017), in which defendants had lengthy prison sentences and parole was unlikely, but still possible, and the district court had found the defendants failed to establish unworkability as contemplated in the restitution statute. If a district court intends restitution be paid from inmate funds while the person is incarcerated, it must specifically make that order. State v. Tucker, 311 Kan. 565, 465 P.3d 173 (June 12, 2020).

LIFETIME POSTRELEASE SUPERVISION FOR SEX OFFENDERS. The Equal Protection Clause requires all similarly situated persons be treated alike under the law. Those convicted of sexually violent crimes are subject to lifetime postrelease supervision because of the high risk of recidivism. Such offenders are not similarly situated to those convicted of other serious, but not sexually violent, crimes for purposes of determining an Equal Protection violation. State v. Little, 58 Kan. App. 2d 278, 469 P.3d 79, (June 12, 2020), petition for rev. filed (Jul. 10, 2020), petition for rev. denied (Nov. 24, 2020).

CRIMINAL HISTORY. To be scored as a person crime, a Kansas crime committed before Kansas adopted person and nonperson designations must have elements identical to, or narrower than, a current Kansas person crime. This decision extends State v. Wetrich, 307 Kan. 552 (2018), which construed the statute concerning classifying out-of-state crimes, to circumstances governed by the recently-adopted statutory language governing older Kansas crimes. State v. Coleman, 311 Kan. 305, 460 P.3d 368 (Apr. 3, 2020).

RESTITUTION—PAYMENT PLAN. K.S.A. 21-6604(b)(2), which governs orders of restitution, refers to a "plan established by the court for payment of restitution." That language requires a district court to establish a payment plan when it orders restitution, not to merely establish the amount of restitution. State v. Roberts, 57 Kan. App. 2d 836, 461 P.3d 77 (Feb. 21, 2020), petition for rev. filed (Mar. 23, 2020).

SEXUALLY VIOLENT PREDATORS

NON-PARTICIPATION IN TREATMENT. When a person declines to participate in the Sexual Predator Treatment Program's treatment regimen, there is no way to determine whether the Program's treatment, as applied to that person, has been effective. The

Kansas Sexually Violent Predator Act's reference to a change in a person's "mental abnor- mality or personality disorder" is part of the ultimate legal test applied by courts assessing whether a person should continue to be committed under the Act. It does not establish or require a certain standard for treatment purposes. Burch v. Howard, 57 Kan. App. 2d 860, 461 P.3d 840 (Feb. 28, 2020), petition for rev. filed (Mar. 30, 2020), petition for rev. denied (May 27, 2020).

SPEEDY TRIAL

COMMENCEMENT OF STATUTORY SPEEDY TRIAL CLOCK. Stevenson was convicted in Ellis County of a single count of criminal threat. The Court of Appeals held that, contrary to his argument that his speedy trial clock began to run after he was brought before the Barton County District Court on its warrant and while his Ellis County bench warrant was pending, the statutory speedy trial clock starts running when a defendant is brought before the court that issued the bench warrant, not when a defendant is brought before any district court. The court reversed and remanded for retrial on intentional criminal threat because the State had presented alternative theories of criminal threat to the jury, and reckless criminal threat has been declared unconstitutional by the Kansas Supreme Court. State v. Stevenson, __ Kan. App. 2d __, 478 P.3d 781, 2020 WL 6816364 (Nov. 20, 2020), petition for rev. filed (Dec. 21, 2020). SUFFICIENCY OF THE EVIDENCE

CRIMINAL USE OF A WEAPON. A jury convicted Dameon V. Baumgarner of possession of a firearm by a person who is or has been subject to involuntary commitment because of mental illness. The State relied on a civil commitment order to prove Baum- garner had been involuntary committed. On appeal, the Court of Appeals vacated the conviction, holding that civil involuntary commitment requires proof of clear and convincing evidence but a criminal conviction requires proof beyond a reasonable doubt. Thus, the

20 order of civil commitment did not constitute proof beyond a reasonable doubt of Baum- garner's mental status. State v. Baumgarner, __ Kan. App. 2d __, ___ P.3d ___, 2021 WL 219239 (Jan. 22, 2021). ROBBERY. Evidence that the defendant, in a single transaction, stole items belonging to multiple people from the common presence of multiple people can support more than one robbery conviction. State v. Dale, __ Kan. __, 474 P.3d 291, 2020 WL 6108732 (Oct. 16, 2020). CIRCUMSTANTIAL EVIDENCE OF A DRUG. Appellate courts weighing sufficiency do not distinguish between direct and circumstantial evidence in terms of probative value because a conviction of even the gravest offense can be based on circumstantial evidence. Thus, even if the State does not present direct evidence that a defendant charged with unlawfully possessing the controlled substance oxycodone did not have a prescription for the drug, circumstantial evidence could establish the lack of a prescription. And proof of the identity of a substance by circumstantial evidence may be sufficient to affirm a conviction in a drug prosecution even if no scientific test results are admitted or available. State v. Brazzle, 311 Kan. 754, 466 P.3d 1195 (Jul. 10, 2020).

TRIAL RIGHTS

SPEEDY TRIAL—DETAINERS. The time limits for disposition charges pending against incarcerated defendants established by the Uniform Mandatory Disposition of De- tainers Act do not start to run until the court and county attorney receive a certificate con- taining details of the defendant's custody from the Secretary of Corrections. The defendant's completion of all steps required of him does not start the clock early, when there is no evidence of misfeasance or malfeasance by prison officials. State v. Griffin, No. 120,747, __ Kan. __, __ P.3d __ 2021 WL 299745 (Jan. 29, 2021). DUE PROCESS—MULTIPLE ACTS CHARGED IN MULTIPLE COUNTS. The inability to reliably associate particular conduct with each of three identical counts of aggravated arson that were submitted to a jury required reversing the convictions. The jury had acquitted on two of the three charges, and the defendant raised a colorable claim that there was insufficient evidence on at least some of the acts that the jury could have considered as the basis for the remaining conviction. The circumstances implicated the defendant's due process rights and frustrated appellate review. State v. Coble, __ Kan. __, 479 P.3d 201, 2021 WL 137564 (Jan. 15, 2021). PUBLIC TRIAL. A defendant's right to a public trial is not abridged if a courtroom is too full to accommodate members of the public during jury selection. In this case, the trial

21 court did not order the courtroom closed, and it consulted with the parties who assured the court that no special measures were needed to enable the public to view the proceedings. State v. Carter, __ Kan. __, 477 P.3d 1004, 2020 WL 7409996 (Dec. 18, 2020). RIGHT TO COUNSEL—WAIVER. A trial court did not abuse its discretion in ac- cepting a defendant's waiver of counsel by failing to determine expressly that the defendant was competent to represent herself. Under certain circumstances, a person competent to stand trial may nonetheless be incompetent to represent him or herself due to severe mental illness. But nothing in the record indicated defendant suffered from severe mental illness. State v. Burden, 311 Kan. 859, 467 P.3d 495 (Jul. 17, 2020). JURY TRIAL RIGHT—RESTITUTION. A defendant has neither a Section 5 of the Kansas Constitution Bill of Rights nor a Sixth Amendment right to a jury determination of the amount of restitution. Restitution is a form of restorative justice intended to restore victims of crime to the position they found themselves in before the crime. It is not a pun- ishment and therefore does not invoke the protections of the Sixth Amendment jury trial right. There was no right to have a jury determine restitution at statehood, so it does invoke the protections of Section 5. State v. Robison, 58 Kan. App. 2d 380, 469 P.3d 83 (June 26, 2020), petition for rev. filed (Jul. 27, 2020), petition for rev. granted (Nov. 20, 2020).

JURY TRIAL RIGHT. A sentencing court's use of judicial findings of prior convictions to sentence a defendant under the Kansas Sentencing Guidelines does not violate section 5 of the Kansas Constitution Bill of Rights. Section 5's criminal jury trial right provides no greater protection than the Sixth Amendment of the United States Constitution with respect to judicial findings of criminal history. State v. Albano, 58 Kan. App. 2d 117, 464 P.3d 332 (Apr. 10, 2020), petition for rev. filed (May 6, 2020), petition for rev. granted (Sept. 30, 2020).

MISTRIAL—DOUBLE JEOPARDY. When the trial court sua sponte declares a mistrial due to a jury deadlock, retrial is permitted only when there is a manifest necessity for the court's action. Overruling State v. Graham, 277 Kan. 121, 83 P.3d 143 (2004) (holding court's sua sponte jury deadlock determination barred retrial only when governmental conduct precipitating mistrial was intended to goad the defendant into moving for mistrial). State v. Kornelson, 311 Kan. 711, 466 P.3d 892 (Jul. 2, 2020).