RECENT DECISIONS AND HOT ISSUES CRIMINAL CASES
CASES: JANUARY 1, 2016– JANUARY 27, 2017
APPELLATE CASES UPDATE
AGGRAVATED BURGLARY
State v. Daws 303 Kan. 785, 368 P.3d 1074 (Feb. 19, 2016) (Biles, J.) (Luckert, J., dissenting, joined by Rosen and Stegall, JJ.) Case No. 108,716 Daws, who was charged with aggravated burglary, requested a lesser included offense instruction for simple burglary because the victim was not in the home when he had entered. The district court refused, and the jury convicted Daws of aggravated burglary. The Court of Appeals affirmed. The Supreme Court held K.S.A. 21- 5807(b) refers to two legally distinct factual situations. Finding Daws was incorrectly charged with "entering into" and not "remaining within" a dwelling, the Supreme Court reversed the Court of Appeals decision affirming the district court and reversed the challenged conviction for aggravated burglary. The Supreme Court also overruled State v. Reed, 8 Kan. App. 2d 615, 663 P.2d 680, rev. denied 234 Kan. 1077 (1983), and its progeny as they relate to the crime of aggravated burglary when the defendant is only charged with unauthorized entering the building or residence.
ALTERNATIVE MEANS
State v. Cottrell ___ Kan. App. 2d___, ___ P.3d ___, 2017 WL 383358 (Jan. 27, 2017) (Standridge, J.) Case No. 114,635 Cottrell was convicted of unlawful distribution of controlled substances and conspiracy to distribute controlled substances. On appeal, Cottrell argued that the district court erred in three respects: by failing to issue a unanimity instruction on the conspiracy charge; by failing to grant his directed verdict based on insufficiency of the evidence on all charges; and by issuing an improper jury instruction with regard to the mental state for the distribution charge. The Court of Appeals affirmed the convictions. The court held that overt acts presented to a jury that are alleged to have been committed in furtherance of one conspiracy under K.S.A. 2015 Supp. 21-5302(a) are neither alternative means requiring jury unanimity nor multiple acts requiring jury unanimity on which act the defendant committed. Thus, neither instruction would have been proper in this case. The court also found no error because: (1) substantial evidence supported the conspiracy and distribution charges, and (2) Cottrell invited the court to issue the instruction that he later challenged as erroneous.
State v. Williams 303 Kan. 750, 368 P.3d 1065 (Feb. 12, 2016) (Luckert, J.) Case No. 106,645 A jury convicted Williams of two counts of criminal threat. The Kansas Court of Appeals affirmed and the Kansas Supreme Court granted review. In affirming, the Kansas Supreme Court held that communicating a criminal threat, as defined in K.S.A. 21-3419(a)(1), to more than one person constitutes only one offense even if it is
1 perceived and comprehended by multiple victims. Therefore, naming multiple individuals as potential victims in a criminal complaint or in a jury instruction does not present an alternative means issue. Additionally, the Kansas Supreme Court held that the legislature created alternative means when it defined two mental states in K.S.A. 21- 3419 (intent to terrorize or reckless disregard of the risk of terrorizing), and that sufficient evidence supported each of the alternative means instructed in this case.
AMENDMENT TO CHARGING DOCUMENT
State v. Dupree 304 Kan. 377, 373 P.3d 811 (Apr. 29, 2016) (Luckert, J.) Case No. 110,311 A jury convicted Dupree of multiple crimes, including felony murder. On direct appeal, the Kansas Supreme Court affirmed Dupree's convictions and sentences. Our Supreme Court rejected Dupree's claim that the State's omission of the words "aiding and abetting" in the charging document was a defect entitling him to relief, reaffirming the long-standing rules that aiding and abetting is not a separate crime and that the State is not required to charge aiding and abetting to pursue a theory of accomplice liability at trial. The Court also went on to hold that: (1) the State's oral amendment at the close of evidence to the underlying crime for the felony murder charge, despite not being memorialized, did not deprive the district court of jurisdiction or constitute reversible error because Dupree was not charged with a new crime or prejudiced; (2) sufficient evidence supported Dupree's felony-murder conviction even if the felony-murder jury instruction was narrower than the charging information because the question for the jury is where the death occurs within the res gestae of the crime, regardless of the sequence of events; (3) the district court properly declined to instruct the jury on Dupree's requested compulsion defense because, while the defense was legally available to Dupree, the evidence did not support the instruction; (4) the district court did not err in refusing Dupree's requested lesser included offense instructions for felony murder because it was legally inappropriate under K.S.A. 2013 Supp. 21-5402(d),(e); (5) although the trial court abused its by allowing a detective, who was a sequestered witness, to assist the prosecutor with exhibits, this error was harmless given that the detective's testimony at trial was of little consequence; which eliminated all lesser included offenses of felony murder; and (6) there was no cumulative error.
APPELLATE JURISDICTION
State v. Webb 52 Kan. App. 2d 891, 378 P.3d 1107 (July 22, 2016) (Arnold-Burger, J.) Petition for Review filed Aug. 22, 2016 Case No. 114,065 The State charged Timothy Webb with two offences, but after a trial, the jury failed to reach a verdict on one of the two. The district court declared a mistrial, and Webb filed a motion to dismiss the case against him on double jeopardy grounds. The district court denied the motion, and Webb appealed. However, the Court of Appeals held that because an appeal from a final judgment in a criminal case requires both a conviction and sentence, and Webb had not been sentenced, it lacked jurisdiction to consider Webb's double jeopardy challenge.
BRADY DISCLOSURE
State v. DeWeese ___ Kan. ___, ___ P.3d ___, 2017 WL 242659 (Jan. 20, 2017) (Nuss, C.J.) Case No. 112,372 A jury convicted DeWeese of premeditated first-degree murder and conspiracy to commit first-degree murder. DeWeese filed a motion for a new trial because the prosecutor had inadvertently failed to turn over a police report that contained favorable information to the defendant before trial in violation of Brady. The district court denied the motion, holding that the new evidence contained in the report was not material and did not undermine the confidence of the trial's outcome. The Kansas Supreme Court agreed and held the district court did not abuse its discretion in denying the request for a new trial because the new evidence was cumulative and immaterial.
2 BURGLARY
State v. Potts 304 Kan. 687, 374 P.3d 639 (June 24, 2016) (Rosen, J.) Case No. 113,302 Potts was convicted of felony murder, criminal discharge of a firearm at an occupied vehicle, and burglary after he stole a vehicle and fired shots from that vehicle into another. This shooting resulted in the death of one of the passengers in the other vehicle. The Kansas Supreme Court affirmed Potts' conviction and sentence. It held: (1) there was sufficient evidence to uphold his convictions of felony murder and criminal discharge of a firearm; (2) burglary is not restricted to situations in which the defendant intends to steal an item from the interior—burglary can occur when the vehicle itself is stolen; (3) his statements to police were admissible because he failed to object to their admission at trial and the statements were a central part of his defense; (4) the jury instruction for aiding and abetting was not in error because Potts failed to object to the instruction at trial and it was not legally necessary for the district court to sua sponte alter this instruction; (5) cumulative error did not exist; (6) the district court did not err in making factual findings allowing Potts to be prosecuted as an adult because the adult certification process under the Juvenile Justice Code is a jurisdictional determination, not a sentencing question, and therefore, judicial factfinding necessary to certify a juvenile for adult prosecution does not run afoul of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); and (7) the district court must correct Potts' journal entry of judgment that improperly states he received lifetime postrelease supervision for all of his crimes when the sentence pronounced from the bench did not indicate such a conviction because a sentence receives its effectiveness when pronounced from the bench and a journal entry that does not reflect the pronounced sentence is erroneous and must be corrected to reflect the actual sentence imposed.
CAPITAL MURDER
State v. Kleypas ___ Kan. ___, 382 P.3d 373 (Oct. 21, 2016) (Luckert, J.) Case No. 101,724 A jury convicted Kleypas of capital murder, aggravated burglary, and attempted rape, and returned a death penalty verdict. In Kleypas I, the Kansas Supreme Court vacated the sentence and remanded for a new sentencing hearing. The second jury also returned a death penalty verdict. Kleypas argued the district court erred in seating an entirely new jury on remand without following statutory procedure, but the Court refused to reach this argument because Kleypas did not designate evidence in the record showing that the district court did not attempt to recall members of the first jury panel. Kleypas also argued that his conviction for attempted rape was multiplicitous with his conviction for capital murder. Finding controlling authority decided after Kleypas I, the Court reversed the conviction for attempted rape. The Court held that the Eighth Amendment does not categorically prohibit the execution of offenders who are severely mentally ill at the time of their crimes, however, mental illness can be presented as a mitigating factor in a death penalty proceeding. Regarding harmless error analysis, the Court stated that although the wording, "little, if any, likelihood of changing the jury's ultimate conclusion," describes essentially the same standard as that in Chapman v. California of "no reasonable possibility that the error contributed to the verdict," the "likelihood" wording will no longer be used. The Court found that although a physical attack on Kleypas by the victim's father was a fundamental failure in the proceedings, no injustice requiring mistrial occurred because it was not a statement of victim impact and the trial judge's actions cured any taint. Justice Johnson dissented on this issue, stating that because of the heightened degree of reliability required to impose a death sentence, a trial judge should question jurors individually to evaluate whether prejudice occurred from the fundamental failure. The Court found the remainder of Kleypas' 20 issues were barred by the law of the case doctrine or constituted harmless error.
State v. Cheever 304 Kan. 866, 375 P.3d 979 (July 22, 2016) (Rosen, J.) Case No. 99,988 Cheever was sentenced to death following conviction on one count of capital murder and four counts of attempted capital murder. On remand from the United States Supreme Court, the Kansas Supreme Court held that the State's
3 expert witness testimony did not exceed the appropriate scope of rebuttal under the constitution or state evidentiary rules. The court also held: (1) that Cheever was not entitled to a felony-murder lesser included offense instruction, (2) that although the district court's failure to instruct the jury that mitigating circumstances need not be proven beyond a reasonable doubt was error under state law, it was not clear error, (3) that Cheever did not have standing to raise a challenge to the constitutionality of K.S.A. 21-3439(a)(5) on the ground he asserted, (4) that the trial court's rulings on two challenges for cause to venire members were not error, (5) that although the trial court erred by making comments to the jury regarding appellate review, Cheever's rights were not prejudiced by the statements, (6) that any error in the trial court's failure to have the jury make a finding of Cheever's age at the time of the crime was harmless, (7) that Cheever's objection to the relaxed evidentiary standard of K.S.A. 21- 4624(c) was rejected, and (8) that the prosecutor's improper remark during closing would not have affected the death penalty verdict. Therefore, the Supreme Court affirmed Cheever's convictions and sentence.
CIRCUMSTANTIAL EVIDENCE
State v. Thatch ___ Kan. ___, 378 P.3d 522 (Sept. 9, 2016) (Luckert, J.) Case No. 112,231 Jerry Thatch was convicted of first-degree felony murder and aggravated burglary after a jury trial. The charges arose out of an incident during which Thatch and three other men went to the home of Pheng Xiong and beat and then killed him. At Thatch's trial, Vat Sana Khamvongsa, one of the men involved, testified that the group was angry with Xiong and, prior to going to his home, discussed Xiong being a problem that they needed to handle. Khamvongsa testified that he took this to mean that they were going to go to Xiong's house and beat him up. On appeal, Thatch complained that there was insufficient evidence that he entered Xiong's home with the intent to commit aggravated battery to sustain his convictions of felony murder and aggravated burglary. Thatch argued that circumstantial evidence cannot be used to establish that he acted with the requisite mental state under K.S.A. 21- 5202. The Supreme Court disagreed, finding that the evidence Khamvonsga presented regarding his own intent was sufficient circumstantial evidence of Thatch's mental state from which a reasonable jury could have found Thatch guilty.
COMPULSORY JOINDER
State v. Jordan 303 Kan. 1017, 370 P.3d 417 (Mar. 25, 2016) (Beier, J.) Case No. 106,409 After being convicted of four traffic offenses, Jordan was convicted of theft by deception at a second trial. He argued on appeal that his theft conviction was barred by K.S.A. 21-3108(2)(a), the compulsory-joinder statute. The Kansas Supreme Court affirmed, citing stare decisis and the fact that the legislature had not amended the statute in response to its decision in State v. Wilkins, 269 Kan. 256, 263, 7 P.3d 252 (2000), where it held that compulsory- joinder does not bar a later prosecution unless sufficient evidence to support the later conviction was presented at that defendant's first trial. Justice Johnson dissented, arguing that the legislature's inaction is a poor indicator of legislative intent and that the plain language of the statute required overruling Wilkins.
CONFLICTS OF INTEREST
State v. Staten 304 Kan. 957, 304 P.3d 427 (Aug. 12, 2016) (Rosen, J.) Case No. 108,305 Michael Staten and Yvonne Williamson told starkly different versions about what happened July 2011: Williamson said that Staten had beaten her with his fists and a stick with a nail in it, while Staten maintained that Williamson had started the fight and he had merely been defending himself. Williamson ended up in the hospital for 4 days, where she had surgery on one eye and was treated for a punctured lung. A jury convicted Staten of aggravated battery and the Court of Appeals affirmed the conviction. On appeal, the Kansas Supreme Court held
4 that because Staten failed to object at trial to the omission of the self-defense burden-of-proof instruction, it wasn't a reversible error—even though the district court should have given the instruction. The Court also held that the prosecutor shouldn't have said in closing that Staten had admitted he was guilty, but the error was harmless because of the overwhelming evidence against Staten. Finally, the Court held that the district court didn't abuse its discretion when it denied Staten's request for new counsel because Staten hadn't shown justifiable dissatisfaction based on alleged conflicts of interest or a breakdown in communication.
CRIMINAL HISTORY
State v. Johnson 304 Kan. 924, 376 P.3d 70 (Aug. 5, 2016) (Nuss, C.J.) Case No. 111,375+ Following the shooting death of Derrick Hill, a jury convicted Johnson of one count each of premeditated first- degree murder and aggravated burglary. On appeal, the Kansas Supreme Court affirmed, holding: (1) the district court did not err in failing to instruct the jury on voluntary manslaughter, unintentional second-degree murder, and reckless involuntary manslaughter because these instructions were not factually appropriate; (2) the district court did not abuse its discretion by excluding evidence which indicated that the shooting occurred in a high crime area; (3) the district court did not abuse its discretion by denying Johnson's fourth request for a trial continuance; (4) the district court did not err in denying Johnson's motion for new trial based on ineffective assistance of counsel; (5) cumulative error did not prevent Johnson from receiving a fair trial because no errors of any substance occurred; and (6) the district court did not violate Johnson's constitutional rights as described in Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it used his criminal history to enhance his sentence.
State v. Buell 52 Kan. App. 2d 818, 377 P.3d 1174 (June 24, 2016) (Powell, J.) Petition for Review granted Dec. 13, 2016 Case No. 113,881 Buell appealed from his sentences for robbery and attempted kidnapping, arguing that the district court erred in classifying his prior out-of-state burglary juvenile adjudications. He asserted the burglary statute under which he was previously adjudicated in another jurisdiction criminalized a broader range of conduct than the Kansas burglary statute because the intent elements differed. The Kansas Court of Appeals held that when classifying a proper out-of-state burglary adjudication or conviction the element of intent is irrelevant to the determination of whether the conviction or adjudication should be properly classified as a person or nonperson felony because the only material difference between person felony burglary and nonperson felony burglary in Kansas is whether the burglary was committed in a dwelling. The Court of Appeals affirmed Buell's sentences.
State v. Moore 52 Kan. App. 2d 799, 377 P.3d 1162 (June 24, 2016) (Leben, J.) Petition for Review granted Dec. 31, 2016 Case No. 113,545 In 2014, Charles Moore filed a motion to correct an illegal sentence, arguing that the district court had improperly classified his 1984 Oregon burglary conviction as a person felony when it sentenced him in 2005. The district court denied his motion, noting that neither Murdock nor Dickey applied. On appeal, Moore argued that classifying his Oregon conviction as a person felony violated his constitutional rights under Descamps and Apprendi because the Oregon statute and Kansas statute require different forms of criminal intent and by finding the statutes comparable, the district court engaged in impermissible factfinding. The Kansas Court of Appeals affirmed his conviction, holding that: (1) the portion of Descamps requiring that the prior-conviction statute must be identical or narrower than the elements of the generic offense is a federal rule governing interpretation of the federal ACCA statute; (2) in Kansas, the statutes need only be comparable, not identical and the Kansas Supreme Court did not overrule that principle in Dickey when it relied on Descamps and Apprendi; (3) the Descamps categorical and modified-categorical approaches are consistent with the Kansas approach to compare only the elements of the relevant statutes; and (4) there's no Apprendi problem if the element of the crime that causes it to be a person 5 felony is identical in both the comparable Kansas offense and out-of-state offense and the offense may be classified as a person offense even if the two statutes don't match up perfectly in other respects. In Moore's case, the determining factor of whether burglary is a person or nonperson offense is based on whether it involved a dwelling. Thus, the fact that the form of criminal intent did not match was irrelevant to whether the offense was a person or nonperson offense. Therefore, the district court correctly classified the Oregon conviction as a person felony.
State v. Hankins 304 Kan. 226, 372 P.3d 1124 (Apr. 22, 2016) (Johnson, J.) (Stegall, J. dissenting, joined by Luckert, J.) Case No. 109,123 Hankins pled guilty to multiple felony charges. Included in his presentence investigation report (PSI), he had two prior misdemeanor convictions and one prior nonperson felony conviction. The felony conviction was based on a possession of firearm on school property charge in Oklahoma, which entered a deferred judgment. At sentencing, Hankins stipulated to his criminal history. He later filed a motion to correct illegal sentence challenging the Oklahoma conviction; the district court denied the motion. The Court of Appeals affirmed the district court's denial of the motion, applying the invited error doctrine. The Supreme Court found a criminal defendant cannot stipulate to an illegal sentence. The Supreme Court also held that an entry of guilt by a foreign court is necessary to meet the State's definition of a conviction. The Oklahoma deferred judgment did not require an adjudication of guilt, therefore Hankins did not have a conviction for purposes of calculating a criminal history score in Kansas. The Supreme Court reversed and remanded.
State v. Martin 52 Kan. App. 2d 474, 369 P.3d 959 (Mar. 4, 2016) (Malone, C.J.) Petition for Review filed May 5, 2016 Case No. 113,189 Martin appealed the denial of his motion to correct an illegal sentence. The Kansas Court of Appeals vacated and remanded. First, the court held that res judicata or waiver did not bar Martin's claim of an illegal sentence. Second, the court held that retroactivity analysis is not applicable when a constitutional error affects a defendant's criminal history score and results in an illegal sentence because the general rule prohibiting retroactive application of an appellate court decision is superseded by K.S.A. 22-3504(1). Lastly, the court held that even if retroactivity principles applied Martin's claim would not be barred because Dickey was an application of Apprendi, which was decided well before Martin's case arose.
CRIMINAL THREAT
State v. White __ Kan. App. 2d __, 384 P.3d 13 (Oct. 7, 2016) (Schroeder, J.) Petition for Review filed Nov. 7, 2016 Case No. 113,963 Following a jury trial, White was convicted of telephone harassment, stalking, and two counts of criminal threat. The Kansas Court of Appeals affirmed, holding: (1) the State's comments in closing argument that the defense's theory was "ridiculous" did not constitute prosecutorial error; (2) the use of the word "should in a jury instruction matching PIK Crim. 4th 51.010 was legally correct and did not direct a verdict in favor of the State; (3) the use of the word "fear" in the criminal threat statute was not unconstitutionally vague as reasonable people understand this word to mean an unpleasant emotion bed a belief that someone is dangerous, likely to cause pain, or a threat; and (4) the criminal threat statute is not unconstitutionally overbroad because it is clearly designed to prohibit a limited class of impermissible speech.
6 State v. Williams 303 Kan. 750, 368 P.3d 1065 (Feb. 12, 2016) (Luckert, J.) Case No. 106,645 (See case summary under ALTERNATIVE MEANS)
CRUEL AND UNUSUAL PUNISHMENT
State v. Medina __ Kan. App. 2d __, 384 P.3d 26 (Oct. 14, 2016) (Malone, C.J.) Petition for Review filed Nov. 14, 2016 Case No. 114,523 Juan Medina was convicted of aggravated criminal sodomy committed when he was under the age of 18, and was sentenced to lifetime postrelease supervision pursuant to K.S.A. 2015 Supp. 22-3717(d)(1)(G), (5)(E). The Kansas Court of Appeals vacated his sentence in part and remanded with directions. For the first time on appeal, Medina argued that mandatory lifetime postrelease supervision for crimes committed by juveniles constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. The court found that Medina's claim under § 9 of the Kansas Constitution Bill of Rights could not be heard for the first time on appeal because it involved factual inquiries, but his Eighth Amendment claim could be raised because it was a categorical proportionality challenge and only raised questions of law. Next, the court addressed Medina's Eighth Amendment claim and found that the Kansas Supreme Court's ruling in State v. Dull, which held that lifetime postrelease supervision of juvenile offenders convicted of aggravated indecent liberties with a child was categorically unconstitutional under the Eighth Amendment, applied to all juveniles convicted of a sex offense. Therefore, the Court ruled that under Dull, mandatory lifetime postrelease supervision is categorically unconstitutional for all juveniles convicted of a sex offense. In remanding the case for resentencing, the court also explained that as the district court's authority to impose a sentence is controlled by an unconstitutional statutory procedure, it cannot impose any term of postrelease supervision for Medina's conviction of aggravated criminal sodomy.
CUMULATIVE ERROR
State v. Carter ___ Kan. ___, 380 P.3d 189 (Sept. 30, 2016) (Beier, J.) Case No. 112,269 This is Carter's direct appeal from his conviction for premeditated first-degree murder, in which he raised multiple claims of prosecutorial misconduct, multiple claims of instructional error, and a claim that cumulative error required reversal. Applying the pre-Sherman prosecutorial misconduct standard, the court found that all but one of the prosecutor's comments were within the wide latitude he was provided, and the one that was outside that latitude was not prejudicial. The court also found that an instruction given by the district judge was erroneous, because it was given during voir dire, but because the appropriate instruction was given at the close of evidence, there was not clear error. Finally, the court determined that although a jury instruction on reckless second-degree murder was legally and factually appropriate in this case, the evidence undercut any claim that the jury would have reached a different verdict if the instruction had been given. Moreover, the fact that the jury did not reach the lesser included offense instruction they were given was further proof that the failure to give this lesser-included- offense instruction was erroneous. Regarding cumulative error, the court determined that although it had found three errors—the prosecutor's reference to a fact not in evidence, the district judge's erroneous preliminary statement on reasonable doubt, and the omission of an instruction on reckless second-degree murder—even considering these errors together was not enough to necessitate reversal given the abundant evidence against Carter.
7 State v. Johnson 304 Kan. 924, 376 P.3d 70 (Aug. 5, 2016) (Nuss, C.J.) Case No. 111,375+ (See case summary under CRIMINAL HISTORY)
State v. Potts 304 Kan. 687, 374 P.3d 639 (June 24, 2016) (Rosen, J.) Case No. 113,302 (See case summary under BURGLARY)
State v. Charles 304 Kan. 158, 372 P.3d 1109 (Apr. 22, 2016) (Per Curiam) Case No. 105,148 This is Charles' direct appeal from jury convictions and sentence for reckless aggravated battery, felony criminal damage to property, and criminal threat based on a series of incidents that occurred in 2009. The district court sentenced him to 34 months' imprisonment and required him to register under the Kansas Offender Registration Act (KORA). The Court of Appeals affirmed Charles' conviction and sentence. Charles raised six issues on petition for review. On those issues, the court decided: (1) although the district court erred in expanding the lesser included offense instruction, Charles did not meet his burden to demonstrate that the instruction was clearly erroneous given the objective nature of the definitions of deadly weapon and recklessness; (2) reckless aggravated battery is not an alternative means crime, and the State provided sufficient evidence of each of the alleged alternatives; (3) the prosecutor's repeated use of the words "I think" in closing arguments was problematic, but upon repeated reading in context, the court was convicted that the "I thinks" littering the transcript were mere verbal tics and not outside the wide latitude given the prosecutor; (4) a limiting instruction was not legally or factually appropriate because the complained-about testimony did not concern a prior crime but was regarding acts committed as part of the events surrounding the crimes at issue in the trial; (5) with only one error identified, there could be no cumulative error; and (6) Charles' registration requirement under the KORA was punitive, and its imposition required a jury to find he used a deadly weapon under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
DEFECTIVE COMPLAINT
State v. Dunn 304 Kan. 773, 375 P.3d 332 (July 15, 2016) (Beier, J.) (Johnson, J. dissenting) Case Nos. 106,586 & 106,587 The district court convicted Dunn of various offenses including one count of forgery and one count of stalking. Dunn appealed his forgery and stalking convictions. The Kansas Supreme Court affirmed. The Court held that even though the complaint was defective for not including all the elements of forgery, the error was harmless because it did not affect Dunn's substantial rights. The court also held that there was sufficient evidence to support Dunn's stalking conviction. State v. Dupree 304 Kan. 377, 373 P.3d 811 (Apr. 29, 2016) (Luckert, J.) Case No. 110,311 (See case summary under AMENDMENT TO CHARGING DOCUMENT)
8 DEPARTURE SENTENCES
State v. Brown ___ Kan. ___, ____ P.3d ___, 2017 WL 252449 (Jan. 20, 2017) (Biles, J.) Case No. 111,166 Antonio Brown was convicted of felony murder, two counts of child abuse, and one count of interference with a law enforcement officer after a child he had been babysitting died from serious abdominal injuries. On appeal, Brown challenged the admission of statements he made to the police, the lack of a lesser-included-offense instruction for felony murder, the sufficiency of the evidence for the interference charge, and his upward-departure sentence. The Kansas Supreme Court first held that Brown had reinitiated his police interview after he was unable to contact his lawyer. Brown had said several times that he "had nothing to hide" and that it didn't matter if he had his lawyer; after his unsuccessful call to his lawyer, he told the police that he understood his rights and would talk to them anyway. Second, the Court held that Brown's statements were voluntary: the officers' use of emotional pressure was just a way to encourage Brown to tell the truth, the 6 hours of questioning in 7 hours of detention wasn't overlong, and Brown's occasional emotional outbursts didn't make him incapable of understanding what was going on. Third, the Court ruled that because the legislature recently enacted a statute doing away with lesser included offenses for felony murder, the district court didn't err by not instructing the jury on any lesser included offenses. The new statute is retroactive, so it applies to Brown even though it was passed after his crime, and that retroactivity doesn't violate the Ex Post Facto Clause, due process, or the right to a jury trial, as more fully explained in State v. Love, No. 112,611, this day decided. Fourth, the Court ruled that substantial evidence supported the charge of interfering with a law enforcement officer because the evidence showed that Brown had hid in a basement for 5 to 10 minutes after the police announced that they were looking for him. Fifth, the Court held that substantial and compelling reasons found by the jury beyond a reasonable doubt justified Brown's upward departure sentences, namely the victim's young and vulnerable age (14 months) and the excessive brutality of the crime.
DOUBLE JEOPARDY
State v. Barlow 303 Kan. 804, 368 P.3d 331 (Feb. 19, 2016) (Beier, J.) Case No. 108,830 A jury convicted Barlow of attempted second-degree murder and aggravated assault. Before sentencing, the district court issued a written order, vacating Barlow's attempted second-degree murder conviction because he qualified for Stand-Your-Ground immunity. The Kansas Court of Appeals determined that because immunity must be asserted before trial opens or a dispositive plea is entered, the district court had no legal basis to issue the immunity order, and reinstated Barlow's conviction. The Kansas Supreme Court reversed, holding: (1) that the Court of Appeals lacked jurisdiction to reinstate Barlow's conviction because the immunity order qualified as a judgment of acquittal; and (2) that a district court may, at any time before pronouncement of sentence, consider Stand-Your-Ground immunity sua sponte.
DUI
State v. Darrow 304 Kan. 710, 324 P.3d 343 (July 1, 2016) (Johnson, J.) Case No. 109,397 Following a bench trial on stipulated facts, Darrow was convicted of driving under the influence, third offense. The Kansas Supreme Court affirmed, holding: (1) An "attempt to operate" a vehicle under K.S.A. 2010 Supp. 8- 1567 requires an attempt to move the vehicle, merely taking physical control of a vehicle, without an attempt to move the vehicle, is insufficient to meet the attempt to operate element of DUI; (2) when presented with stipulated facts, a court must consider the stipulated context in which the stipulated facts occurred; (3) the probative values of direct and circumstantial evidence are intrinsically similar, so, as with direct evidence, an appellate court does
9 not reweigh the circumstantial evidence supporting a conviction against the circumstantial evidence supporting a not-guilty verdict.
State v. Wycoff 303 Kan. 885, 367 P.3d 1258 (Feb. 26, 2016) (Luckert, J.) (Stegall, J. dissenting) Case No. 110,393 Wycoff was charged with refusing to submit to an evidentiary test under K.S.A. 8-1025. The district court dismissed the charge, and the State appealed. The Kansas Supreme Court affirmed. The court held that K.S.A. 8- 1025 was facially unconstitutional because it violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
State v. Wilson 303 Kan. 973, 368 P.3d 1086 (Feb. 26, 2016) (Luckert, J.) (Stegall, J. dissenting) Case No. 112,009 The district court dismissed a charge against Wilson alleging he refused to submit to DUI testing in violation of K.S.A. 8-1025. The district court found that even though 8-1025 did not violate the Fourth Amendment the statute still violated Wilson's due process rights and his Fifth Amendment privilege against compelled self-incrimination. The State appealed. The Kansas Supreme Court affirmed, albeit for different reasons than the district court. The court held that K.S.A. 8-1025 is facially unconstitutional because it violated the Due Process Clause of the Fourteenth Amendment.
State v. Ryce 303 Kan. 899, 368 P.3d 342 (Feb. 26, 2016) (Luckert, J.) (Stegall, J. dissenting) Case No. 111,698 Ryce moved to dismiss his charge for refusing to submit to DUI testing in violation of K.S.A. 8-1025, arguing that it was unconstitutional under the Fourth and Fourteenth Amendments to criminalize a driver's refusal to submit to testing. The trial court agreed, and the State appealed. Our Supreme Court affirmed, holding: (1) despite the implied consent in K.S.A. 8-1001, the Fourth Amendment still applies; (2) whether K.S.A. 8-1025 violates the Fourth Amendment depends upon the application of the consent exception to warrantless searches alone; (3) a person has the right to refuse testing under the Fourth Amendment; (4) a person has substantive due process rights under the Fourteenth Amendment to be free from unreasonable searches and seizures in violation of the Fourth Amendment; (5) under strict scrutiny test, K.S.A. 8-1025 is facially unconstitutional because K.S.A. 8-1025 violates a person's due process rights under the Fourteenth Amendment by punishing that person for refusing a search, which is a protected right under the Fourth Amendment.
EVIDENCE
State v. Love ___ Kan. ___, ___ P.3d ___, 2017 WL 244772 (Jan. 20, 2017) (Biles, J.) Case No. 112,611 Love appealed his convictions for of felony murder and child abuse, alleging several trial errors. The Kansas Supreme Court affirmed Love's convictions, holding: (1) the district court did not err by admitting 14 autopsy photographs, which Love alleged were cumulative and unduly prejudicial; (2) the district court did not err by excluding evidence about a medical malpractice lawsuit the child's mother filed against a doctor who treated the victim prior to her death; (3) the prosecution did not err by improperly bolstering the mother's credibility as a witness during opening remarks and the examination of other witnesses; (4) the district court did not err by failing to instruct the jury on unintentional second-degree murder as a lesser included offense of felony murder; and (5) there was no cumulative error depriving Love of a fair trial.
10 State v. Rodman ___ Kan. App. 2d ___, 383 P.3d 187 (Oct. 28, 2016) (Pierron, J.) Petition for Review filed Nov. 28, 2016 Case No. 114,024 A jury convicted Rodman of one count of aggravated indecent liberties with a child, imposing a hard 40 sentence. Rodman appealed, arguing (1) that a photocopy of a drawing by the 5 year old victim violated the best evidence rule and (2) that the trial court erred by admitting evidence of his prior sexual offense into evidence. The Court of Appeals affirmed because the State did not violate the best evidence rule by admitting the photocopy. The State had claimed to have lost the original drawing and the accuracy of the photocopy was not questioned. As a result, Rodman's substantial rights were not prejudiced. Moreover, the Court held that the evidence of Rodman's prior sexual offense was relevant for propensity purposes under K.S.A. 60-455(d).
State v. Solis ___ Kan. ___, 378 P.3d 532 (Sept. 9, 2016) (Johnson, J.) Case No. 111,556 A jury convicted Solis of first degree premeditated murder of his former girlfriend. He raised several claims of error on appeal. The Kansas Supreme Court affirmed. The Court held that, while Solis made a pre-trial objection to evidence, he failed to make a contemporaneous objection at trial and thus failed to preserve the issue for appellate review. Next, the Court determined that the district court erred in failing to give a limiting instruction to the jury to inform the jury that it could not use prior batteries as evidence of propensity. Yet, this error did not require reversal because Solis, who failed to object to the instruction below, did not establish that the instruction was clearly erroneous. Similarly, the court rejected Solis' arguments regarding jury instructions because Solis failed to preserve the issue and could not meet the clear error standard. Finally, the court found that, to the extent that errors occurred, they did not prejudice Solis or deprive him of a fair trial.
State v. McCormick ___ Kan. ___, 378 P.3d 543 (Sept. 9, 2016) (Beier, J.) Case No. 109,985 McCormick was convicted of rape and unlawful hosting of minors consuming alcohol. He appealed, challenging the admission of evidence of the non-rape victim's condition and appearance, the district court's use of an aggravating factor to balance mitigating factors when considering a departure from a Jessica's law sentence, and the district court's denial of his motion for a departure sentence. The Kansas Supreme Court held that the evidence of the non-rape victim's condition and appearance was admissible at least to the charge of unlawful hosting of minors consuming alcohol and, as a matter or statutory interpretation, the district court's use of an aggravating factor to balance existing mitigating factors was error. In light of its previous ruling, the Court concluded that it was unnecessary to reach the final issue related to the denial of McCormick's sentencing departure motion.
State v. Johnson 304 Kan. 924, 376 P.3d 70 (Aug. 5, 2016) (Nuss, C.J.) Case No. 111,375+ (See case summary under CRIMINAL HISTORY)
State v. Boysaw 52 Kan. App. 2d 635, 372 P.3d 1261 (Apr. 8, 2016) (Schroeder, J.) Petition for Review filed May 6, 2016 Case No. 112,834 Boysaw appealed his conviction for aggravated indecent liberties with a child arguing K.S.A. 60-455(d) was unconstitutional and the district court erred by allowing evidence of a prior Nebraska conviction for sexual assault of a child to show his propensity to commit sexual acts. Boysaw also argued the aggravated habitual sex offender statute violated Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The Court of Appeals held the admission of relevant and probative evidence pursuant to K.S.A. 60-455(d) did not violate a
11 defendants due process rights and was constitutional since the trial court had the discretion to exclude the evidence if it was unfairly prejudicial. It further held the aggravated habitual sexual offender statute did not violate Apprendi because it only enhanced a defendant's sentence based on prior convictions.
State v. Logsdon 304 Kan. 3, 371 P.3d 836 (Apr. 1 2016) (Luckert, J.) Case No. 110,415 Logsdon was charged with multiple felony counts, including first-degree murder. The court sentenced him to life imprisonment without the possibility of parole for 50 years ("the hard 50"). The Kansas Supreme Court affirmed Logsdon's convictions, rejecting his arguments that insufficient evidence, the erroneous admission of hearsay evidence, and an improper jury instruction on aiding and abetting required reversal of his convictions. The court, however, vacated Logsdon's sentence and remanded the case for resentencing, concluding that the district court impermissibly made factual findings in imposing the enhanced minimum sentence.
State v. Wallin 52 Kan. App. 2d 256, 366 P.3d 651 (Jan. 15, 2016) (Buser, J.) Petition for Review filed Feb. 12, 2016 Case No. 111,332 A jury convicted Wallin of one count of rape, three counts of aggravated criminal sodomy, and two counts of aggravated sexual battery against M.J., a developmentally disabled adult female who the jury deemed incapable of giving consent due to a mental deficiency or disease. On appeal, Wallin challenged his convictions on two grounds: (1) the State presented insufficient evidence to sustain his convictions because the State did not introduce any expert testimony concerning M.J.'s mental capacity, and (2) the district court deprived him of a fair trial when, after closing arguments and prior to the court's evening recess, the district judge provided the jury with an admonishment that a new trial would be an expense and inconvenience to both parties. The Court of Appeals disagreed. Specifically, the court found that expert testimony regarding the victim's incapacity of giving consent because of mental deficiency or disease is not necessarily required, and under the facts of the case, the evidence was sufficient, without expert testimony, to establish Wallin's guilt. Regarding the admonishment, the court found that based upon State v. Tahah, 302 Kan. 783, 358 P.3d 819 (2015), the district court did not err but that the better practice would be to provide such an admonishment at the beginning of the trial.
State v. Seacat 303 Kan. 622, 366 P.3d 208 (Jan. 15, 2016) (Rosen, J.) Case No. 110,360 Seacat was convicted of first-degree premeditated murder, aggravated arson, and aggravated endangerment of a child. The district court sentenced Seacat to life in prison without the possibility of parole for 25 years for the murder conviction, a consecutive sentence of 61 months for the aggravated arson conviction, and consecutive sentences of 7 months for each of the child endangerment convictions. Seacat's theory at trial was that his wife committed suicide, while the State claimed that Seacat murdered his wife and planted evidence suggesting she committed suicide. Seacat raised five evidentiary issues on appeal: (1) the district court should not have permitted out-of-court statements made by his wife reflecting her fear of Seacat and threats that he allegedly made to her; (2) the district court should not have excluded proposed testimony that the wife had attempted or contemplated suicide on five prior occasions; (3) the district court should have allowed him to introduce evidence that a hormone that the wife may have been taking had a side effect of depression; and (4) the district court should have allowed him to testify that his wife had been using marijuana to cope with depression; and (5) the district court should have struck a statement outside the scope of a question regarding Seacat's narcissism. Under an abuse of discretion standard, our Supreme Court found no errors. Thus, it affirmed Seacat's convictions.
State v. Gauger 52 Kan. App. 2d 245, 366 P.3d 238 (Jan. 8, 2016) (Standridge, J.) Petition for Review filed Feb. 3, 2016 Case No. 112,913 A jury convicted Gauger of one count of theft by deception. On appeal, the Court of Appeals found that the district 12 court did not err by admitting four documents over best evidence objections because the documents were electronically stored. It found that under State v. Robinson, 303 Kan. __, 363 P.3d 875 (2015), any printed versions of the electronically stored documents were admissible as originals provided there is no genuine dispute regarding their authenticity. The Court of Appeals also ruled that an instruction to the jury prior to opening statements that a mistrial would be a burden to the parties, the court, and to taxpayers was not clearly erroneous.
State v. Williams 303 Kan. 585, 363 P.3d 1101 (Jan. 8, 2016) (Stegall, J.) Case No. 109,353 On Williams' appeal from a conviction of first-degree premeditated murder, the Kansas Supreme Court affirmed the conviction, holding: (1) that prior bad acts evidence of violence by the victim was relevant to establish the victim's state of mind at the time of his or her death if the defendant was claiming defense of another and presented some evidence establishing that the defendant knew of the prior acts of violence before the incident leading to the victim's death; (2) that a jury instruction on a lesser included offense for voluntary manslaughter was not foreclosed by the defense presentation of a theory inconsistent with voluntary manslaughter but that the failure to instruct on the lesser included offense was harmless since the jury returned a verdict on premeditated murder rather than the lesser included offense of intentional second-degree murder upon which the jury had been instructed; and (3) that the prosecutor's use of "story" to refer to the defendant's account was not misconduct because it did not alone imply the veracity or falsehood of that account.
EX POST FACTO CLAUSE
Doe v. Thompson 304 Kan. 291, 373 P.3d 750 (Apr. 22, 2016) (Johnson, J.) Case No. 110,318 After being convicted of indecent liberties with a minor, the trial court ordered that Doe register as a first-time offender under the Kansas Offender Registration Act (KORA) for 10 years. While Doe was completing his offender registration, the State sent Doe a notice that his offender registration term was extended from 10 years to 25 years under the 2011 KORA amendments. Doe filed a declaratory judgment action against the State, asserting that the retroactive application of the 2011 KORA amendments violated the Ex Post Facto Clause of the United States Constitution. The district court granted summary judgment in Doe's favor, ruling that the Ex Post Facto Clause prevented the retroactive application of the 2011 KORA amendments as the amendments were not civil but punitive in nature. The State appealed, and the Kansas Supreme Court affirmed, holding that after the 2011 amendments, KORA became so punitive that it negated the implied legislative attempt to deem it civil. Thus, the Ex Post Facto Clause prohibited its retroactive application.
State v. Redmond 304 Kan. 283, 371 P.3d 900 (Apr. 22, 2016) (Johnson, J.) Case No. 110,280 The State brought charges against Redmond for failing to register as a sex offender as required by the Kansas Offender Registration Act (KORA). The district court dismissed the charges, holding that Redmond had completed his registration requirements because applying the 2011 KORA amendments retroactively to Redmond would violate the Ex Post Facto Clause of the United States Constitution. The Kansas Supreme Court affirmed, holding that after the 2011 amendments, KORA is so punitive that it negates the implied legislative attempt to deem it civil. Therefore, the Ex Post Facto Clause prohibits KORA's application to any sex offender who committed the qualifying crime prior to July 1, 2011.
State v. Buser 304 Kan. 181, 371 P.3d 886 (Apr. 22, 2016) (Johnson, J.) Case No. 105,982 Buser pled no contest to one count of indecent liberties with a child for sexual conduct that occurred in February 2009. The trial court ordered Buser to register as an offender under the Kansas Offender Registration Act (KORA)
13 for life as a second-time offender instead of for 10 years as a first-time offender because Buser had a prior juvenile adjudication. Before the Kanas Court of Appeals, Buser argued that the trial court erred by using his juvenile adjudication to increase his KORA registration to life. The State agreed that this was error but also argued that Buser was required to register for 25 years, not 10 years, because the 2011 KORA amendments requiring first-time offenders to register for 25 years applied retroactively. The Court of Appeals agreed with the State, and Buser appealed. The Kansas Supreme Court reversed, holding that the retroactive application of the 2011 KORA amendments to Buser violated the Ex Post Facto Clause of the United States Constitution as the 2011 amendments were so punitive as to negate the implied legislative attempt to deem it civil.
EXPERT TESTIMONY
State v. Wallin 52 Kan. App. 2d 256, 366 P.3d 651 (Jan. 15, 2016) (Buser, J.) Petition for Review filed Feb. 12, 2016 Case No. 111,332 (See case summary under EVIDENCE)
FELONY MURDER
State v. Beltz ___ Kan. ___, ___ P.3d ___, 2017 WL _____ (Jan. 27, 2017) (Stegall, J.) Case No. 111,785 Beltz was convicted of first-degree felony murder and attempted possession of marijuana with the intent to distribute. The Kansas Supreme Court deemed waived Beltz' challenge to evidence of prior marijuana sales due to the lack of a contemporaneous objection. The court further ruled that violence during a drug sale is not an extraordinary intervening event that relieves the criminal conducting the drug sale from criminal liability for felony murder. The court also concluded that a self-defense instruction was not warranted because Beltz was involved in a forcible felony, i.e., the sale of marijuana, and the safe harbor provisions of the defense did not apply. Finally, the court found no multiple acts problem when all of the overt acts presented by the State supported a single criminal occurrence—the attempted sale of marijuana.
FIFTH AMENDMENT
State v. Guein ___ Kan. App. 2d ___, ___ P.3d ___, 2017 WL 252529 (Jan. 20, 2017) (Leben, J.) Case No. 115,426 Guein appealed his convictions for possession of marijuana with intent to distribute and misdemeanor possession of drug. He argued the district court erred in denying his motion to suppress: (1) his admission of having marijuana on him made before he was read the Miranda warnings; (2) the evidence of the marijuana found on him; and (3) his post-Miranda statements because the officer had threatened him. First, the Court of Appeals held that Guein was not in custody for Miranda purposes when he consented to a pat-down search and search of his pockets and during that search, the officer asked him if he had any marijuana on him. Second, the court concluded that the officer had probable cause coupled with exigent circumstances to search Guein without a search warrant given that Guein had just admitted he had marijuana on him and the evidence could easily be destroyed or hidden. Third, the divided panel concluded that the district court erred in admitting Guein's post-Miranda statements because his statements were not voluntarily made. After handcuffing Guein, the officer told Guein that he would be questioning him soon, admonished him to be honest, and yelled that he would not "fuck around with" him. The divided panel held that given the totality of the circumstances, Guein's subsequent waiver of Miranda and statements were coerced because the officer had impliedly threatened Guein with physical violence and had minimized the importance of the Miranda warnings.
14 State v. Walker 304 Kan. 441, 372 P.3d 1147 (May 27, 2016) (Stegall, J.) Case No. 110,712 A jury convicted Tyrone Walker of the first-degree premeditated murder. Walker appealed his conviction and sentence, arguing primarily that the district court erred by not giving a lesser-included-offense instruction and by admitting into evidence some statements he made while he was drunk and sleep-deprived and after he invoked his right to silence. The Kansas Supreme Court found no clear error in not instructing the jury on the lesser-included offense of second-degree intentional murder because the State had presented significant evidence of premeditation, so giving the instruction wouldn't have made a difference in the verdict. The court found that substantial evidence supported the district court's conclusion that Walker wasn't impaired from alcohol or sleep deprivation, so his statements were voluntary. But the court did find that Walker had invoked his right to silence when he said, "Okay, now I'm telling you this conversation is over 'cause you just accused me," and "Okay, well, I'm done. I'm done. Now, I'm done." However, while it was error to admit Walker's statements made after his unequivocal invocation of the right to silence, the only such statements actually admitted involved evidence that also came in from other testimony, so the error was harmless beyond a reasonable doubt. The court also found that there was no misconduct in the prosecutor's description of the victim's body in closing arguments, that Walker's hard 50 sentence didn't violate Alleyne because the sentence was based only on the fact of Walker's prior murder conviction, and that there was no cumulative error.
HARD 50 LIFE SENTENCE
State v. Bernhardt 304 Kan. 460, 372 P.3d 1161 (May 27, 2016) (Beier, J.) Case No. 111,639 Bernhardt was convicted of first-degree murder after beating his live-in girlfriend up and leaving her in a ditch, where she died. The Kansas Supreme Court rejected Bernhardt's claims that the district court erred by modifying the PIK instruction on premeditation, by giving two separate instructions on lesser-included offenses of intentional and reckless second-degree murder, or by refusing to instruct on voluntary manslaughter. The Supreme Court also held that applying the amended version of the "hard 50" statute retroactively did not violate the Ex Post Facto Clause. Finally, the Supreme Court upheld the district court's weighing of aggravating and mitigating circumstances in imposing Bernhardt's hard 50 sentence.
HARMLESS ERROR
State v. Corey 304 Kan. 721, 338 P.3d 22 (July 1, 2016) (Biles, J.) Case No. 110,149 Corey was charged with aggravated kidnapping, attempted rape, criminal threat, and two counts of aggravated sexual battery. His first trial resulted in a mistrial, which the second jury discussed during deliberations. Although the district court erred when it did not explicitly find a fundamental failure in the proceedings, the Supreme Court held the error satisfied the constitutional harmless error standard so another mistrial was not warranted. The Supreme Court likewise found the defendant's right to be present at all critical stages of his trial was violated because the judge engaged in ex parte communication with the jury but the error was harmless.
HEARSAY
State v. Seacat 303 Kan. 622, 366 P.3d 208 (Jan. 15, 2016) (Rosen, J.) Case No. 110,360 (See case summary under EVIDENCE)
15 ILLEGAL SENTENCE
State v. Dickey ___ Kan. ___, 380 P.3d 23 (Oct. 7, 2016) (Stegall, J.) (Johnson J, concurring) Case No. 110,325, 110,326, 110,327 Dickey appealed from the revocation of his probation in three cases arguing the district court erred by (1) failing to pronounce the specific length of his underlying sentence after revoking his probation; and (2) imposing an illegal underlying sentence based on an erroneous criminal history score. The Court of Appeals affirmed the district court's order requiring Dickey to serve his underlying sentence, and dismissed his challenge to the original calculation of the sentences. The Supreme Court agreed that a defendant may not file a motion to correct an illegal sentence based on a constitutional challenge. Yet, the Supreme Court held Dickey's criminal history score was improperly calculated, and as a matter of Kansas statutory law, the sentence was illegal and could be corrected at any time. Thus, the Supreme Court reversed the Court of Appeals, vacated the sentences, and remanded to the district court.
State v. Jeffries 304 Kan. 748, 375 P.3d 316 (July 1, 2016) (Johnson, J.) Case No. 113,116 Jeffries pleaded guilty to three counts of aggravated robbery and pleaded nolo contendere to one count of aggravated robbery and first-degree murder for crimes he committed in 1986. He received a life sentence for the murder and 15-to-life sentence for the robberies. Jeffries filed a motion to correct an illegal sentence, Citing Murdock, he argued his 1987 indeterminate sentence was eligible for conversion to a guidelines sentence under K.S.A. 21-4724. The district court denied his motion and Jeffries appealed directly to the Kansas Supreme Court. Our Supreme Court found that Murdock did not apply and the district court did not err in denying the motion. Jeffries' sentence remains ineligible for retroactive application of the KSGA.
State v. Gray 303 Kan. 1011, 368 P.3d 1113 (Mar. 18, 2016) (Nuss, C.J.) Case No. 109,912 Gray appealed the district court's denial of his motion to correct illegal sentence, contending that he was entitled to more than a mere summary disposition given (1) the plain language of K.S.A. 22-3504 and (2) public policy dictated that all movants should be entitled to counsel and a hearing. The Kansas Supreme Court, however, refused to withdraw its longstanding precedent on this issue, which authorizes district courts to dismiss such a motion "'without a hearing or appointment of counsel if . . . the motion, files, and records of the case conclusively show the defendant is not entitled to relief.'" The Court then rejected Gray's challenge to the legality of his sentence, finding that despite Gray's contention to the contrary, his sentence was not ambiguous with respect to the time and manner in which it was to be served.
State v. Warrior 303 Kan. 1008, 368 P.3d 1111 (Mar. 11, 2016) (Beier, J.) Case No. 111,524 In 2008, a jury convicted Warrior of first-degree murder and conspiracy to commit first-degree murder of her husband. The district court imposed a hard 50 life sentence, finding two aggravating factors existed which outweighed any mitigating factors. On direct appeal, the Kansas Supreme Court affirmed Warrior's convictions and sentence. State v. Warrior, 294 Kan. 484, 277 P.3d 1111 (2012). In 2013, Warrior filed a motion to correct an illegal sentence under K.S.A. 22-3504(1). Warrior claimed her hard 50 life sentence violated her right to a jury trial under the Sixth Amendment to the United States Constitution, based on Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 2163, 186 L. Ed. 2d 314 (2013). The district court denied Warrior's motion. On appeal, the Kansas Supreme Court held Warrior's motion to correct an illegal sentence was not an appropriate procedural vehicle to challenge the constitutionality of the procedures used to impose her hard 50 life sentence and affirmed the district court's denial of her motion.
16 State v. Brown 303 Kan. 995, 368 P.3d 1101 (Mar. 11, 2016) (Beier, J.) Case No. 111,345 Brown was convicted of first-degree felony murder, criminal possession of a firearm, criminal discharge of a firearm, attempt to commit aggravated robbery, and aggravated burglary. Brown argues that the evidence was insufficient to support a conviction for attempted aggravated robbery and felony murder because the investigators did not recover the drugs that were the target of the aggravated robbery. Under the facts of the case, the Supreme Court found several scenarios supporting the State's theory that the aggravated robbery failed. The Court also found sufficient evidence that the victim was killed during the commission of the intended aggravated robbery; thus supporting the felony-murder conviction. The Court further rejected Brown's challenge to his sentence, finding that K.S.A. 21-6819(b)(4)'s language limiting the maximum sentence in multiple conviction cases to two times the longest sentence in a multiple conviction case applies only to on-grid crimes.
State v. LaMae 303 Kan. 993, 368 P.3d 1110 (Mar. 11, 2016) (Rosen, J.) Case No. 110,940 LaMae was convicted of first-degree felony murder and manufacturing of methamphetamine. LaMae filed a pro se motion to correct an illegal sentence claiming that (1) the district court failed to provide lesser included offense instructions for felony murder and (2) the charging document was fatally defective. The Kansas Supreme Court held that neither claim could be raised through a motion to correct an illegal sentence because both claims challenged LaMae's conviction, not his sentence.
INEFFECTIVE ASSISTANCE OF COUNSEL
State v. Perry 303 Kan. 1053, 370 P.3d 754 (Mar. 25, 2016) (Beier, J.) Case No. 109,506 Perry pled no contest to unlawful distribution of a drug precursor and unlawful possession of a drug precursor. Defense counsel did not file a timely direct appeal. Perry filed a pro se K.S.A. 60-1507 motion, arguing she should have been sentenced under the identical offense doctrine discussed in State v. Snellings, 294 Kan. 149, 273 P.3d 739 (2012), a case handed down on the date of Perry's sentencing. The district court held the Snellings decision applied only to Perry's possession of a drug precursor conviction. Perry appealed, and the Court of Appeals remanded to the district court for a hearing under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), to determine whether Perry's 60-1507 motion should be construed as a direct appeal. The district court held that Ortiz was inapplicable. On appeal, the Court of Appeals reversed, holding that the third Ortiz exception applied as Perry was furnished attorney for appeal who failed to perfect or complete appeal. The Kansas Supreme Court affirmed, holding that evaluation of the third Ortiz exception allowing a late appeal requires consideration of whether the defendant received effective assistance of counsel under Roe v. Flores-Ortega, 528 U.S. 470, 476-77, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000). The Court found that Ortiz applied because defense counsel's failure to advise Perry of the current state of the law so that she could make an informed decision about whether to appeal was sufficiently equivalent to a failure to file a direct appeal.
INSUFFICIENT EVIDENCE
State v. Brown 303 Kan. 995, 368 P.3d 1101 (Mar. 11, 2016) (Beier, J.) Case No. 111,345 (See case summary under ILLEGAL SENTENCE)
17 INVOCATION OF MIRANDA RIGHTS
State v. Brown ___ Kan. ___, ____ P.3d ___, 2017 WL 252449 (Jan. 20, 2017) (Biles, J.) Case No. 111,166 (See case summary under DEPARTURE SENTENCES)
JURIES AND INSTRUCTIONS
State v. Love ___ Kan. ___, ___ P.3d ___, 2017 WL 244772 (Feb. 20, 2015) (Biles, J.) Case No. 112,611 (See case summary under EVIDENCE)
State v. Louis ___ Kan. ___, 384 P.3d 1 (Nov. 23, 2016) (Biles, J.) Case No. 110,853 Following a jury trial, Luis was convicted of first-degree felony murder, three counts of attempted first-degree murder, and additional counts of aggravated assault and criminal discharge of a firearm. In his direct appeal to the Kansas Supreme Court, Louis argued: "(1) The district court erred when it failed to give lesser included offense instructions relating to the attempted first-degree murder convictions; (2) the district court erred when it failed to instruct that a principal cannot be liable under the felony-murder statute for the death of a co-felon arising from a third-party's lawful self-defense; [] (3) the prosecutor improperly commented during closing arguments that Louis did not want the jury to know he and others involved in the shootings were gang members;" and "the district court could not impose the life sentence because statutory sentencing guidelines for multiple conviction cases limited his total prison term to twice the sentence authorized for his most serious conviction that was not eligible for a life sentence." Our Supreme Court affirmed his convictions and sentences because (1) assuming Louis was entitled to an instruction on second degree murder, there was no reasonable possibility that the jury would have found him guilty of second degree murder, (2) a felony murder instruction was not legally appropriate because Louis was not a co-felon with the victim, (3) the prosecutor's comment was within the wide latitude and discretion afforded to prosecutor's during closing; and (4) Louis misinterpreted the law in arguing that his sentence was illegal.
State v. White __ Kan. App. 2d __, 384 P.3d 13 (Oct. 7, 2016) (Schroeder, J.) Petition for Review filed Nov. 7, 2016 Case No. 113,963 (See case summary under CRIMINAL THREAT)
State v. Carter ___ Kan. ___, 380 P.3d 189 (Sept. 30, 2016) (Beier, J.) Case No. 112,269 (See case summary under CUMULATIVE ERROR)
State v. Staten 304 Kan. 957, 304 P.3d 427 (Aug. 12, 2016) (Rosen, J.) Case No. 108,305 (See case summary under CONFLICTS OF INTEREST)
18 State v. Solis ___ Kan. ___, 378 P.3d 532 (Sept. 9, 2016) (Johnson, J.) Case No. 111,556 (See case summary under EVIDENCE)
State v. Johnson 304 Kan. 924, 376 P.3d 70 (Aug. 5, 2016) (Nuss, C.J.) Case No. 111,375+ (See case summary under CRIMINAL HISTORY)
State v. Bernhardt 304 Kan. 460, 372 P.3d 1161 (May 27, 2016) (Beier, J.) Case No. 111,639 (See case summary under HARD 50 LIFE SENTENCE)
State v. Walker 304 Kan. 441, 372 P.3d 1147 (May 27, 2016) (Stegall, J.) Case No. 110,712 (See case summary under FIFTH AMENDMENT)
State v. Allen 52 Kan. App. 2d 729, 372 P.3d 432 (May 6, 2016) (Arnold-Burger, J.) Petition for Review filed June 6, 2016 Case No. 112,780 A state trooper stopped Allen for driving without a seatbelt but suspected he might be intoxicated. When Allen fled the scene before sobriety tests, the trooper searched his vehicle and found evidence of drug possession, including a pipe and scale with methamphetamine residue. The jury convicted Allen of several crimes, but Allen appealed, arguing that (1) he lacked knowledge of the methamphetamine residue and (2) the wording of a jury instruction removed the jury's right to nullification. The Court of Appeals affirmed his convictions, holding that: (1) Allen's knowledge could be inferred because the resident was clearly visible to the naked eye, and (2) the world "should" in the jury instruction did not mandate a guilty finding, leaving intact the jury's right to nullify.
State v. Dupree 304 Kan. 377, 373 P.3d 811 (Apr. 29, 2016) (Luckert, J.) Case No. 110,311 (See case summary under AMENDMENT TO CHARGING DOCUMENT)
State v. Charles 304 Kan. 158, 372 P.3d 1109 (Apr. 22, 2016) (Per Curiam) Case No. 105,148 (See case summary under CUMULATIVE ERROR)
State v. Aguilar 52 Kan. App. 2d 466, 367 P.3d 324 (Feb. 25, 2016) (Walker, S.J.) Petition for Review filed Mar. 25, 2016 Case No. 112,560 Aguilar appealed his convictions for aggravated indecent liberties with a child and sexual exploitation of a child, arguing the pattern jury instruction on multiple acts impermissibly directed the jury to find him guilty. The jury
19 instruction reads: "The State claims distinct multiple acts which each could separately constitute the crime of ____ . . . ." Aguilar argued that the use of the word "could" could lead jurors to conclude that the evidence presented already met the elements of the crime charged. The Court of Appeals rejected his argument, finding the jury instruction was an accurate statement of the law and would not mislead jurors as to the required burden of proof.
State v. Daws 303 Kan. 785, 368 P.3d 1074 (Feb. 19, 2016) (Biles, J.) (Luckert, J., dissenting, joined by Rosen and Stegall, JJ.) Case No. 108,716 (See case summary under AGGRAVATED BURGLARY)
State v. Cooper 303 Kan. 764, 366 P.3d 232 (Feb. 12, 2016) (Stegall, J.) Case No. 106,986 Whether Cooper intentionally caused great bodily harm to the victim, necessary for severity level 4 aggravated battery, or merely caused bodily harm to the victim, necessary for lesser-included offense of severity level 7 aggravated battery, was a question of fact for the jury to decide rather than a matter of law. When a defendant challenges the district court's failure to give a lesser-included offense instruction for the first time on appeal, the reviewing court applies the clearly erroneous standard, requiring the defendant demonstrate the failure was clearly erroneous, K.S.A. 22–3414(3). The district court's failure to administer a jury instruction on the lesser-included offense of severity level 7 aggravated battery was not clearly erroneous, in the prosecution for severity level 4 aggravated battery; the instruction would not have made a difference in the verdict, as photographic and testimonial evidence was introduced showing the full extent of victim's injury.
State v. Wallin 52 Kan. App. 2d 256, 366 P.3d 651 (Jan. 15, 2016) (Buser, J.) Petition for Review filed Feb. 12, 2016 Case No. 111,332 (See case summary under EVIDENCE)
State v. Gauger 52 Kan. App. 2d 245, 366 P.3d 238 (Jan. 8, 2016) (Standridge, J.) Petition for Review filed Feb. 3, 2016 Case No. 112,913 (See case summary under EVIDENCE)
State v. Williams 303 Kan. 585, 363 P.3d 1101 (Jan. 8, 2016) (Stegall, J.) Case No. 109,353 (See case summary under EVIDENCE)
JURISDICTION
State v. Shull 52 Kan. App. 2d 981, 381 P.3d 499 (Sept. 2, 2016) (Malone, C.J.) Petition for Review filed Sept. 30, 2016 Case No. 114,357 Shull pled guilty to five counts of sexual exploitation of a child under 18 years of age. Pursuant to the plea agreement, Shull received an upward durational departure sentence of 136 months' imprisonment. Shull appealed
20 his sentence. The Kansas Court of Appeals affirmed. First, the court held that it had jurisdiction to hear Shull's appeal even though his sentence was agreed upon in his plea agreement. Second, the court held that Shull's plea agreement did not effectively waive his right to appeal. Finally, the court held that the district court's reference to the aggravating factors in the State's departure motion was a sufficient on the record finding of the substantial and compelling reasons for the departure.
JURY NULLIFICATION
State v. Allen 52 Kan. App. 2d 729, 372 P.3d 432 (May 6, 2016) (Arnold-Burger, J.) Petition for Review filed June 6, 2016 Case No. 112,780 (See case summary under JURIES AND INSTRUCTIONS)
KANSAS OFFENDER REGISTRATION ACT (KORA)
Doe v. Thompson 304 Kan. 291, 373 P.3d 750 (Apr. 22, 2016) (Johnson, J.) Case No. 110,318 (See case summary under EX POST FACTO CLAUSE)
State v. Redmond 304 Kan. 283, 371 P.3d 900 (Apr. 22, 2016) (Johnson, J.) Case No. 110,280 (See case summary under EX POST FACTO CLAUSE)
State v. Petersen-Beard 304 Kan. 192, 377 P.3d 1127 (Apr. 22, 2016) (Stegall, J.) Case No. 108,061 Petersen-Beard appealed his sentence to lifetime postrelease registration as a sex offender pursuant to the Kansas Offender Registration Act contending lifetime postrelease registration was cruel and unusual punishment in violation of § 9 of the Kansas Bill of Rights and the Eighth Amendment to the United States Constitution. The Kansas Supreme Court held lifetime registration as a sex offender was not punishment and could not be considered unconstitutionally cruel or unusual punishment. In so holding, the Kansas Supreme Court overruled contrary holdings in State v. Redmond, 304 Kan. 283, 371 P.3d 900 (2016), State v. Buser, 304 Kan. 181, 371 P.3d 886 (2016), and Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (2016).
State v. Buser 304 Kan. 181, 371 P.3d 886 (Apr. 22, 2016) (Johnson, J.) Case No. 105,982 (See case summary under EX POST FACTO CLAUSE)
State v. Charles 304 Kan. 158, 372 P.3d 1109 (Apr. 22, 2016) (Per Curiam) Case No. 105,148 (See case summary under CUMULATIVE ERROR)
21 LATE APPEALS
State v. Smith 304 Kan. 916, 377 P. 3d 414 (Aug. 5, 2016) (Johnson, J.) Case No. 110,061 Smith pled no contest to first-degree felony murder, aggravated kidnapping, aggravated robbery, and possession of a firearm by a minor. After his sentencing, Smith told his attorney that he wanted to appeal but his attorney advised him to wait until the district court ruled on a motion to modify his sentence before appealing. After the district court overruled the motion, Smith's attorney failed to file a direct appeal. Two decades later, Smith filed a pro se notice of appeal. On remand, the district court found Smith waived his right to bring an untimely appeal by waiting so long. The Kansas Supreme Court reversed and remanded the case to determine whether Smith's attorney disregarded his specific instructions to file a notice of appeal. The court explained the lapse of time, standing alone, was not a threshold bar to an untimely appeal as a matter of law.
State v. Northern 304 Kan. 860, 375 P.3d 363 (July 22, 2016) (Rosen, J.) Case No. 112,955 Northern filed a motion for leave to take an out-of-time appeal from his life sentence for first-degree premeditated murder. The district court denied his motion. On appeal, Northern argued his time to appeal never ran because restitution was entered by written order rather than pronounced from the bench in open court in his presence. The Kansas Supreme Court rejected this argument, noting that the rules regarding restitution and time for appeals are applied less strictly to sentencing which occurred before State v. Frierson, 298 Kan. 1005, 319 P.3d 515 (2014). The court also found that none of the Ortiz exceptions applied to Northern's case, thus affirming the district court.
State v. Davisson 303 Kan. 1062, 370 P.3d 423 (Mar. 25, 2016) (Nuss, C.J.) Case No. 109,778 In November 2000, Davisson pled guilty to felony murder, aggravated kidnapping, and aggravated robbery and was sentenced to more than 45 years in prison. In May 2011, more than 10 years after he entered his guilty plea, Davisson filed a motion to withdraw his plea under K.S.A. 22-3210(d). Davisson's motion was outside the 1-year time limitation set in K.S.A. 22-3210 which may only be extended by the court upon a showing of "excusable neglect." Davisson argued he met the excusable neglect burden because he was not aware he could file a motion to withdraw his plea and was not aware of the 1-year time limit. As a matter of first impression, the Kansas Supreme Court examined what constitutes excusable neglect under K.S.A. 22-3210. The court reiterated the longstanding maxim that ignorance of the law is no excuse and held Davisson had not established the requisite grounds for allowing his late withdrawal motion to be considered on the merits because ignorance of the law is insufficient to constitute excusable neglect.
State v. Shelly 303 Kan. 1027, 371 P.3d 820 (Mar. 25, 2016) (Beier, J.) Case No. 109,292 Shelly plead no contest to unlawful distribution and unlawful possession of a drug precursor. His attorney did not file a timely direct appeal, although Shelly told his attorney about a recent case he thought would be applicable on appeal. Shelly eventually challenged his sentence under K.S.A. 60-1507, and the Court of Appeals remanded to the district court for an Ortiz hearing. The district court determined that none of the Ortiz exceptions applied, and the Court of Appeals affirmed. The Kansas Supreme Court found the first Ortiz exception, which allows late appeals by defendants who were not informed of their right to appeal at sentencing or by trial counsel, did not apply because the district court had told him he had a right to appeal. Nevertheless, the Kansas Supreme Court determined that the third Ortiz exception, which allows late appeals by defendants who were furnished with counsel who failed to perfect and complete an appeal, applied because: (1) Shelly had expressed a desire to appeal, (2) a reasonable defendant in Shelly's place would want to appeal given the recent applicable case, and (3) Shelly's attorney's failure to timely file an appeal was objectively unreasonable.
22 State v. Perry 303 Kan. 1053, 370 P.3d 754 (Mar. 25, 2016) (Beier, J.) Case No. 109,506 (See case summary under INEFFECTIVE ASSISTANCE OF COUNSEL)
State v. Smith 303 Kan. 673, 366 P.3d 226 (Jan. 29, 2016) (Biles, J.) Case No. 112,250 More than 7 years after accepting a plea agreement and pleading guilty to felony murder and aggravated robbery, Smith filed a direct appeal of his sentence and a motion to withdraw his plea. He argued on appeal that he fit the exception in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), because: (1) at his sentencing the district court simply said he "may" have a right to appeal; (2) there was no finding made by the district court that his retained attorney actually advised him of his right to appointed appellate counsel, if indigent; and (3) that he would have taken a timely appeal but for his ignorance of his right to appointed counsel. The Kansas Supreme Court held that Smith could establish the first two Ortiz requirements; however, he failed to carry his burden on the third requirement. The district court only found that Smith's justification for not filing a timely appeal was not understanding his plea, not a deficiency in his knowledge of his appellate rights. The Supreme Court affirmed the district court. Next, the Supreme Court held that Smith waived or abandoned his argument that the 1 year limitation to file a motion to withdraw a plea should be extended for him. Smith failed to make an affirmative showing of excusable neglect. The Supreme Court again affirmed the district court.
LESSER INCLUDED OFFENSES
State v. Sinzogan ___ Kan. App. 2d ___, ___ P.3d ___, 2017 WL 65906 (Jan. 6, 2017) (Schroeder, J.) Case No. 113,901 Sinzogan was convicted of stalking and violation of a protective order. On appeal, he argued violation of a protective order was a lesser included offense of stalking. The court held violation of a protective order was not a lesser included offense of stalking because violation of a protective order has a higher culpable mental state. Sinzogan also argued the prosecutor committed error during the rebuttal portion of closing argument when denigrating the role of defense counsel. The court held the prosecutor's statements went to defense counsel's trial tactics and closing argument and was not an attack on the role of defense attorneys.
State v. Belt ___ Kan. ___, 381 P.3d 473 (Oct. 21, 2016) (Beier, J.) Case No. 94,435 A jury convicted Belt of capital murder, attempted rape and a severity level 3 aggravated arson, and was sentenced to death. He appealed and raised several claims of error, but died during pendency of his direct appeal. The Kansas Supreme Court affirmed in part, and reversed and vacated in part. Following Belt's death, the Supreme Court considered only the three issues raised by the defendant that had the potential to exonerate him: sufficiency of evidence to convict of intent to rape, so as to support conviction for capital murder; whether conviction for attempted rape was multiplicitous to capital murder conviction based on that crime; and sufficiency of evidence to demonstrate fires set in apartment resulted in "substantial risk of bodily harm" as required under a severity level 3 aggravated arson, so as to support conviction for aggravated arson. The Court found that in a light most favorable to the prosecution, a rational fact-finder could have found Belt guilty beyond a reasonable doubt of the capital murder conviction based on attempted rape because the evidence supported Belt's sexual intent and removing the victim's clothing was an overt act sufficient to demonstrate intent to rape. Because attempted rape was a lesser included offense of the capital murder conviction, however, the conviction for attempted rape was found to be multiplicitous and therefore violative of Belt's right to be free from double jeopardy, resulting in reversal of this conviction. Finally, the Court, found Belt guilty of a severity level 3 aggravated arson because the evidence was sufficient to demonstrate that fires set in the apartment resulted in substantial risk of bodily harm to the residents of the building.
23 State v. Dupree 304 Kan. 377, 373 P.3d 811 (Apr. 29, 2016) (Luckert, J.) Case No. 110,311 (See case summary under AMENDMENT TO CHARGING DOCUMENT)
State v. Charles 304 Kan. 158, 372 P.3d 1109 (Apr. 22, 2016) (Per Curiam) Case No. 105,148 (See case summary under CUMULATIVE ERROR)
State v. Daws 303 Kan. 785, 368 P.3d 1074 (Feb. 19, 2016) (Biles, J.) (Luckert, J., dissenting, joined by Rosen and Stegall, JJ.) Case No. 108,716 (See case summary under AGGRAVATED BURGLARY)
State v. Cooper 303 Kan. 764, 366 P.3d 232 (Feb. 12, 2016) (Stegall, J.) Case No. 106,986 (See case summary under JURY INSTRUCTIONS)
MOTION FOR NEW TRIAL
State v. Johnson 304 Kan. 924, 376 P.3d 70 (Aug. 5, 2016) (Nuss, C.J.) Case No. 111,375+ (See case summary under CRIMINAL HISTORY)
MOTION FOR SUBSTITUTE COUNSEL
State v. Brown ___ Kan. ___, 382 P.3d 852 (Oct. 28, 2016) (Luckert, J.) Case No. 113,253 The district court denied Brown's motion for substitute counsel. The Supreme Court affirmed. The court found that the district court did not abuse its discretion in denying Brown's motion. The Court found that no complete breakdown in communication had occurred. Even though Brown's counsel informed him that testifying was likely not in his best interest, the Court found that Brown was given an unambiguous opportunity to assert his right to testify after the district court explained to him that he alone controlled that decision. Finally, despite Brown's subjective feelings toward his counsel, the Court found that he failed to carry his burden of showing a justifiable dissatisfaction based on a breakdown in communication. Thus, Brown was not entitled to substitute counsel where his trial counsel was still able to provide effective aid through the fair presentation of a defense.
MOTION TO WITHDRAW PLEA
State v. Schaal ___ Kan. ___, 383 P.3d 1284 (Nov. 18, 2016) (Nuss, C.J.) Case No. 111,513 Pursuant to a plea agreement that indicated he would be sentenced to probation, Schaal pled guilty to eluding an 24 officer Before sentencing, Before sentencing, Schaal moved to withdraw his guilty plea because he learned he would likely not be sentenced to probation given that he was already on probation for another crime. The trial court denied Schaal's motion because it claimed to have remembered asking Schaal at his plea hearing about (1) whether he knew that the plea agreement was not binding on the court, and (2) whether anyone had promised him probation in exchange for his plea. The Court of Appeals affirmed, but the Kansas Supreme Court reversed because the trial court denied Schaal's motion based on is belief it had asked Schaal the preceding two questions, when it had not. Therefore, the trial court's denial was not supported by substantial competent evidence.
State v. Williams 303 Kan. 605, 366 P.3d 1101 (Jan. 8, 2016) (Biles, J.) Case No. 112,417 Williams pled no contest to first-degree murder in 2008. Prior to sentencing, she moved to withdraw her plea; the district court denied the motion, and the Supreme Court upheld the decision. In the years following her sentencing, she filed several collateral attacks and motions to withdraw her plea, but the district court denied each motion. She appealed the denial of her most recent motion to withdraw her plea, but the Supreme Court affirmed, finding the motion be successive and untimely without the required showing of excusable neglect.
MULTIPLICITOUS OFFENSES State v. Pribble 304 Kan. 824, 375 P.3d 966 (July 15, 2016) (Johnson, J.) Case No. 108,915 Pribble argued he was improperly convicted of two counts of failure to affix a drug tax stamp after he was found in possession of both marijuana and methamphetamine. The Court of Appeals affirmed the convictions. The Kansas Supreme Court construed K.S.A. 79-5202 and 79-5208, holding that possession, at the same time and place, of more than one type of drug lacking tax stamps constitutes a single unit of prosecution. The Court also found prosecutorial misconduct where the prosecutor gave an inaccurate hypothetical and a personal opinion of defendant's credibility in the closing arguments, but found these errors did not require reversal. The Court reversed one conviction and remanded for resentencing. Justice Rosen dissented on the construction of the Kansas Drug Stamp Act.
MURDER
State v. Seba ___ Kan. ___, 380 P.3d 209 (Sept. 30, 2016) (Luckert, J.) Case No. 113,149 Seba was charged with two counts of first-degree premeditated murder under Alexa's law based on the killing of a pregnant bystander after he fired nine shots at a group with whom Seba had been fighting. He was also charged with one count of attempted first degree murder for shooting one of the men in the group. To prove premeditation, the State relied on the transferred intent doctrine, arguing Seba premeditated the murder of the men he had been fighting and his guilt was the same as if he had killed his intended victim(s). The Kansas Supreme Court held the transferred intent doctrine does not conflict with Kansas' premeditated murder provision or the felony-murder rule. It supports a conviction when a defendant intended to kill someone and actually kills another. The transferred intent doctrine also supports a conviction based on Alexa's law, which allows for two units of prosecution if one act kills both a woman and her unborn child.
State v. Seacat 303 Kan. 622, 366 P.3d 208 (Jan. 15, 2016) (Rosen, J.) Case No. 110,360 (See case summary under EVIDENCE)
25 NO-CONTACT ORDER
State v. Wilmer ___ Kan. App. 2d ___, 384 P.3d 32 (Oct. 21, 2016) (Arnold-Burger, J.) Case No. 114,925 The district court convicted Wilmer of 21 counts of violating a no-contact order. Wilmer challenged the district court's authority to issue such an order and also challenged the order as a restriction of his free speech rights under the First Amendment. His convictions were affirmed because courts have inherent authority to administer justice, which includes issuing no-contact orders to ensure that witnesses are not influenced to change their testimony by defendants. K.S.A. 2015 Supp. 21-5924(a)(4) recognizes this power by imposing criminal penalties for violating any order issued by a court during the pendency of a criminal case. The order does not violate Wilmer's First Amendment rights because it is narrowly tailored to serve a significant government interest and leaves ample alternative channels of communication.
State v. Hendricks 52 Kan. App. 2d 737, 372 P.3d 437 (May 6, 2016) (Leben, J.) Case No. 113,597 Daniel Hendricks and his wife got divorced in 2006, but the district court retained jurisdiction over child support and custody issues. In July 2013, the district court ordered Hendricks to have no contact with his ex-wife and children. In March 2014, Hendricks violated that no-contact order and was prosecuted under K.S.A. 21-5924, which criminalizes violating certain types of no-contact orders including those entered during a divorce case under K.S.A. 23-2707. But K.S.A. 23-2707 only provides authority to enter no-contact orders until the entry of a final judgment; the no-contact order in this case had been entered long after the 2006 divorce decree, which was the final judgment in the divorce. So the no-contact order couldn't be criminally enforced because it wasn't entered under K.S.A. 23-2707 and didn't fall into any of the other categories of no-contact orders listed in K.S.A. 21-5924.
PAROLEE SEARCHES
State v. Toliver 52 Kan. App. 2d 344, 368 P.3d 1117 (Jan. 29, 2016) (Buser, J.) Petition for Review granted Oct. 21, 2016 Case No. 111,897 Parole officers, with the assistance of law enforcement, searched Toliver's apartment without a warrant and without reasonable suspicion of a parole violation or criminal activity. On appeal from his subsequent conviction for marijuana possession, Toliver contended that although his parole agreement authorized suspicionless searches of his person, residence, and any other property under his control, the district court erroneously denied his motion to suppress because the search infringed upon his rights under the Fourth Amendment to the United States Constitution. The Court of Appeals agreed, finding that the plain language of K.S.A. 2014 Supp. 22-3717(k), which defines the diminished privacy interests of Kansas parolees and sets the parameters of what constitutes a reasonable search for Fourth Amendment purposes, only requires that parolees agree to suspicionless searches and seizures of their person and, thus, the variance between Toliver's parole agreement and K.S.A. 2014 Supp. 22- 3717(k) rendered the search of his apartment unconstitutional.
PETITION FOR REVIEW
State v. Eisenhour ___ Kan. ___, 384 P.3d 426 (Oct. 28, 2016) (Luckert, J.) Case No. 111,478 The district court revoked Eisenhour's probation and imposed the underlying sentence. On appeal, the Kansas Court of Appeals found the sentence was illegal because it violated the double base-sentence rule. The Kansas Supreme Court granted Eisenhour's petition for review. After the petition was granted, however, Eisenhour filed a motion to remand, arguing he had already served the maximum amount of time he could legally be sentenced to. 26 The Kansas Supreme Court found the petition for review had been improvidently granted, noting this was the most expedient way for Eisenhour to be resentenced.
PLEAS
State v. Schaefer __ Kan. __, 385 P.3d 918 (Dec. 23, 2016) (Johnson, J.) Case No. 109,915 Prior to sentencing, Schaefer moved to withdraw his plea of nolo contendere to charges of rape and attempted rape. Schaefer claimed that good cause for withdrawal existed because: (1) his trial counsel had failed to advise him that his plea exposed him to possible involuntary civil commitment under the Kansas Sexually Violent Predator Act (KSVPA); (2) trial counsel had coerced him into accepting the negotiated plea bargain; and (3) his prescription drugs had caused a faulty mental state that rendered ineffectual the colloquy with the judge at the plea hearing. The Court held that where the facts of a case show no more than a remote possibility that the person entering a plea will be involuntarily committed under the KSVPA, the failure of defense counsel to advise the person of that remote possibility does not, standing alone, establish counsel's representation as being ineffective for plea withdrawal purposes. If a person's knowledge of the potential for proceedings under the KSVPA would not have changed that person's decision to enter a plea, then the failure of counsel to provide the person with the information does not establish good cause for the withdrawal of the plea. The Court concluded the record supported the district court's ruling that Schaefer did not show good cause to withdraw his plea.
State v. Davisson 303 Kan. 1062, 370 P.3d 423 (Mar. 25, 2016) (Nuss, C.J.) Case No. 109,778 (See case summary under LATE APPEALS)
State v. Smith 303 Kan. 673, 366 P.3d 226 (Jan. 29, 2016) (Biles, J.) Case No. 112,250 (See case summary under LATE APPEALS)
POSTCONVICTION DNA TESTING
State v. Hernandez 303 Kan. 609, 366 P.3d 200 (Jan. 15, 2016) (Johnson, J.) Case No. 108,684 Hernandez was convicted of raping and sodomizing his 13 year-old daughter. Eight years after his conviction, Hernandez filed a motion pursuant to K.S.A. 21-5212, seeking postconviction DNA testing of bedding the police had collected during their investigation. The district court denied the motion and the Court of Appeals affirmed. On review the Kansas Supreme Court reversed, finding that the district court had improperly interpreted and applied K.S.A. 21-5212. Specifically, the district court erred when it determined that DNA evidence had to have been presented at trial in order for postconviction testing to be compulsory, and when it required Hernandez to show how DNA testing would yield exculpatory evidence prior to ordering testing.
PROBATION
State v. Lloyd 52 Kan. App. 2d 780, 375 P.3d 1013 (May 27, 2016) (Powell, J.) Case No. 114,389 The district court revoked Lloyd's probation based on his stipulation to being bound over for trial after a
27 preliminary hearing in another case. The Court of Appeals vacated the revocation of Lloyd's probation. The Court held the standard for binding someone over for trial—probable cause—is a lesser standard than that required to find someone in violation of the terms and conditions of their probation—a preponderance of the evidence. The Court of Appeals held the district court erred in using the probable cause standard to revoke Lloyd's probation.
State v. Hurley 303 Kan. 575, 363 P.3d 1095 (Jan. 8, 2016) (Johnson, J.) Case No. 108,735 The State filed a motion to revoke Hurley's probation citing four alleged violations. Hurley stipulated to the violations at his revocation hearing and the district court revoked and reinstated his probation and imposed a 90- day jail sanction. As Hurley was leaving the courtroom he allegedly directed profanities toward his intensive supervision officer. The ISO informed the court and the court entered a finding of contempt against Hurley. The court immediately reopened the revocation hearing and prohibited Hurley from further speaking. The court altered its previous disposition and remanded Hurley to prison to serve his underlying sentence as a result of his alleged behavior leaving the courtroom. The Kansas Court of Appeals affirmed Hurley's probation revocation after he appealed arguing the district court lacked jurisdiction to reopen his probation revocation hearing after pronouncing its disposition and that the court violated his due process rights by revoking his probation without a hearing. The Kansas Supreme Court reversed the Kansas Court of Appeals and remanded the case for a new probation revocation hearing finding the district court violated Hurley's due process rights. The Kansas Supreme Court found the district court violated Hurley's due process rights to notice of the alleged probation violations, a hearing in open court and the opportunity to be heard at the hearing when the court reopened the matter after the alleged outburst and then revoked Hurley's newly reinstated probation and remanded him to prison for contempt.
PROSECUTORIAL ERROR
State v. Sinzogan ___ Kan. App. 2d ___, ___ P.3d ___, 2017 WL 65906 (Jan. 6, 2017) (Schroeder, J.) Case No. 113,901 (See case summary under LESSER INCLUDED OFFENSES)
PROSECUTORIAL MISCONDUCT
State v. Louis ___ Kan. ___, 384 P.3d 1 (Nov. 23, 2016) (Biles, J.) Case No. 110,853 (See case summary under JURIES AND INSTRUCTIONS)
State v. White __ Kan. App. 2d __, 384 P.3d 13 (Oct. 7, 2016) (Schroeder, J.) Petition for Review filed Nov. 7, 2016 Case No. 113,963 (See case summary under CRIMINAL THREAT)
State v. Carter ___ Kan. ___, 380 P.3d 189 (Sept. 30, 2016) (Beier, J.) Case No. 112,269 (See case summary under CUMULATIVE ERROR)
28 State v. Netherland ___ Kan. ___, 379 P.3d 1117 (Sept. 30, 2016) (Beier, J.) Case No. 112,806 Following a jury trial, Netherland was convicted of first-degree felony murder, attempted aggravated robbery, aggravated robbery, conspiracy to commit aggravated robbery, aggravated battery, and attempted burglary of a motor vehicle. The Kansas Supreme Court affirmed, holding: (1) the evidence was sufficient to support Netherland's convictions; (2) the State's comments in closing argument about a letter that Netherland allegedly wrote while in jail did not constitute prosecutorial misconduct.
State v. Sherman ___ Kan. ___, 378 P.3d 1060 (Sept. 9, 2016) (Stegall, J.) Case No. 113,105 Sherman appealed from his convictions for first-degree murder and aggravated battery, claiming his convictions should be reversed because of prosecutorial misconduct. The Supreme Court, in addressing the claims of prosecutorial misconduct, changed both the language to be used and the standard of review applied when a criminal defendant challenged a prosecutor's actions during trial. The Court altered the nomenclature to refer to "prosecutorial error." After evaluating prior cases, the Court revised the standard of reviewing prosecutorial error to a two-step process" (1) a court must determine whether the prosecutor's actions exceeded the "'wide latitude allowed in discussing the evidence;'" and (2) if the prosecutor exceeded that latitude, then a court must determine "whether the error prejudiced the defendant's due process rights to a fair trial." The Court also recognized that prosecutorial actions that arise to the level that it impacted negatively on the overall integrity of the criminal justice system could be sanctioned outside the actual criminal case in which the actions occurred. This more egregious level of conduct invokes the court's inherent supervisory powers, even if those actions are deemed harmless beyond a reasonable doubt in an individual case. Such egregious actions—exceeding mere negligence— requires courts to act affirmatively to punish and deter such conduct by referral to attorney disciplinary authorities and/or when appropriate, the use of the court's contempt powers.
State v. Pribble 304 Kan. 824, 375 P.3d 966 (July 15, 2016) (Johnson, J.) Case No. 108,915 (See case summary under MULTIPLICITOUS OFFENSES)
State v. Rosa 304 Kan. 429, 371 P.3d 915 (May 27, 2016) (Stegall, J.) Case No. 108,807 Police officers raided Rosa's home following an investigation into the suspicious behavior of his housemates— Maureen Evans, Randall Smith, and Joshua Sigler—and two individuals who did not live in the house but would "sometimes 'crash there'"—Brian Brice and O'rian Heckman. During the raid, officers found evidence of an active methamphetamine laboratory in Smith's bedroom and they discovered a small plastic bag containing crystal ice methamphetamine residue in a storage room used by Evans. Officers did not, however, find methamphetamine in Rosa's bedroom, or the common areas of the home. A jury subsequently convicted Rosa of possession of methamphetamine, and the Kansas Supreme Court affirmed, holding: (1) while the mere presence of or access to illegal drugs is not enough, standing alone, to demonstrate possession when the premises on which the drugs are found is not exclusively occupied by the defendant, the State presented sufficient circumstantial evidence to prove Rosa had "'joint . . . control over [methamphetamine] with knowledge of and intent to have such control' [citation omitted]"; (2) the district court did not err in admitting evidence of Rosa's prior drug use under K.S.A. 60-455 because Rosa advanced an innocent explanation for the presence of the drugs; and (3) the prosecutor's one improper statement during closing arguments did not rise to the level of misconduct requiring reversal.
29 State v. Fisher 304 Kan. 242, 373 P.3d 781 (Apr. 22, 2016) (Beier, J.) Case No. 109,706 A jury convicted Fisher of attempted second-degree murder and criminal damage to property. The Kansas Court of Appeals affirmed. The Kansas Supreme Court also affirmed, finding that the State's improper reference to Fisher's post-Miranda silence was harmless error; the State's use of the word "bull" to describe Fisher's testimony was harmless error; the district court did not err by instructing the jury that a mistrial would be a burden on the parties and the taxpayers; the district court's failure to give an attempted voluntary manslaughter instruction was not clear error; sufficient evidence supported Fisher's criminal damage to property conviction; the identified trial errors did not constitute cumulative error; and Fisher's criminal history score was properly and correctly calculated. Dissenting in part, Justice Johnson disagreed with the majority's lesser included instruction analysis, and would have found the mistrial instruction improper and overturned Fisher's criminal damage to property conviction.
State v. Williams 303 Kan. 585, 363 P.3d 1101 (Jan. 8, 2016) (Stegall, J.) Case No. 109,353 (See case summary under EVIDENCE)
REASONABLE SUSPICION
State v. Chapman ___ Kan. ___, 381 P.3d 458 (Oct. 21, 2016) (Beier, J.) Case No. 111,572 After the court denied his motion to suppress, a jury convicted Chapman of one count of identity theft and three counts of felony theft. On appeal, Chapman argued the officers lacked reasonable suspicion to stop his car and the motion to suppress should have been granted. The Court of Appeals agreed with the district court and affirmed. The Kansas Supreme Court reversed and remanded to the district court for further proceedings. The court found there was no reasonable suspicion of criminal activity to support the stop of Chapman's car. The court also found that a tip of suspicious, but not criminal activity, is not enough to support reasonable suspicion. Finally, the court found that anonymous tips alone are rarely sufficient to provide reasonable suspicion to stop a vehicle.
RESTITUTION
State v. Futrell ___ Kan. App. 2d ___, ___ P.3d ___, 2016 WL 7422874 (Dec. 23, 2016) (Atcheson, J.) (Leben, J. concurring and dissenting in part) Case No. 115,160 Futrell was charged with burglary and theft of his employer's house and burglary and theft of his employer's car. He was also charged with criminal damage to property in a separate event. Futrell ultimately pled no contest to just a single count of burglary of his employer's house under a plea agreement with the State that resulted in this dismissal of his remaining charges. The plea agreement left the issue of restitution open and explicitly stated the State may ask for restitution for the victim of Futrell's criminal damage to property crime. At sentencing, the trial court ordered that Futrell pay restitution for items taken and damaged during the burglary and theft of his employer's house, the burglary and theft of his employer's car, and by his criminal damage to property. Futrell appealed, arguing that the only restitution the trial court could have ordered him to pay had to stem from damages connected to the burglary of his employer's house as this was the only crime he had been convicted of. The Court of Appeals held that Futrell could not be required to pay restitution for the dismissed charges of burglary and theft of his employer's car based on State v. Dexter, 276 Kan. 909, 80 P.3d 1125 (2003), resulting in reversal of this restitution ruling. Yet, the majority of the Court held that the trial court could properly order Futrell to pay restitution as to the dismissed charges of theft of his employer's house and criminal damage to property for the following reasons: (1) Futrell's burglary was the indirect cause of his employer's loss of cash as Futrell took the cash during the burglary, meaning the burglary was causally tied to the property loss to an extent supporting the 30 restitution award under K.S.A. 2015 Supp. 21-6607(c); and (2) Futrell had agreed that the State could request that he pay restitution as to the dismissed criminal damage of property charge under his plea agreement. Judge Leben dissented, arguing that K.S.A. 2015 Supp. 21-6607(c)(2) only allows a court to order restitution on crimes for which the defendant was convicted and cited State v. Miller 51 Kan. App. 2d 869, 355 P.3d 716 (2015), for authority.
State v. Shank 304 Kan. 89, 369 P.3d 322 (Apr. 15, 2016) (Nuss, C.J.) Case No. 112,982 Shank pled guilty to first-degree murder, aggravated arson, and aggravated burglary, and the district court imposed consecutive sentences for each count. It also ordered Shank to pay $108,427.65 in restitution, which primarily consisted of damages to the house that Shank set on fire to conceal his murder. The Kansas Supreme Court first found that the district court did not abuse its discretion by imposing consecutive rather than concurrent sentences in light of the particularly brutal, cruel, and premeditated nature of the crime. The Court further found that Shank did not properly challenge the workability of the restitution plan before the district court. Nonetheless, it found that Shank did not provide any compelling circumstances to indicate that the restitution plan was unworkable. The Court affirmed Shank's sentences.
RIGHT TO A JURY TRIAL
State v. Woolverton 52 Kan. App. 2d 700, 371 P.3d 941 (Apr. 29, 2016) (Leben, J.) Petition for Review filed May 31, 2016 Case No. 113,211 Woolverton was convicted at a bench trial of misdemeanor domestic violence, and he argued on appeal that the bench trial was a violation of his constitutional and statutory right to a jury trial. Kansas' constitutional right to a jury trial mirrors the federal constitutional right, and under federal caselaw, a defendant has a right to a jury trial if the offense is a serious offense but not if it's a petty offense. Generally, a petty offense is one that is punishable by imprisonment for 6 months or less, unless the petty offense also carries additional statutory penalties that are severe. Here, the maximum prison sentence for misdemeanor domestic violence was 6 months, and the additional penalties were not severe enough to raise the offense from petty to serious, so Woolverton did not have a constitutional right to a jury trial. The statutory right to a jury trial requires that the defendant specifically request a jury trial within 7 days of the first notice of trial assignment. Woolverton did not make such a request, so his statutory right to a jury trial wasn't violated.
SEARCH AND SEIZURE
State v. Guein ___ Kan. App. 2d ___, ___ P.3d ___, 2017 WL 252529 (Jan. 20, 2017) (Leben, J.) Case No. 115,426 (See case summary under FIFTH AMENDMENT)
State v. Cleverly ___ Kan. ___, ___ P. 3d ___, 2016 WL 7422941 (Dec. 23, 2016) (Johnson, J.) Case No. 111,282 Cleverly was a passenger in a vehicle detained for a traffic stop. After the traffic stop, a law enforcement officer conducted a series of searches of Cleverly and his personal effects and, ultimately, discovered methamphetamine in a cigarette package in Cleverly's possession. At a bench trial on stipulated facts, the district court convicted Cleverly of possession of methamphetamine. On appeal, Cleveraly argued the district court erred in denying his motion to suppress the evidence obtained from the search of his personal effects. On review, the Kansas Supreme Court reversed the district court's ruling. The Supreme Court held, under the totality of the circumstances, the
31 nature of Cleverly's unlawful seizure rendered his consent to the search of his personal effects involuntary and invalid.
State v. Torres ___ Kan. App. 2d ___, 386 P.3d 532 (Dec. 23, 2016) (Leben, J.) Petition for Review filed Jan. 18, 2017 Case No. 114,269 Torres sold methamphetamine to a confidential informant who paid for the drugs with $220 cash with recorded serial numbers. When Torres left the drug-deal location in a car, a police officer pulled him over. After Torres was arrested, another officer searched the car he'd been in and found $200 of the recorded money. A jury convicted Torres of distributing methamphetamine and using a communication device (a cell phone) to facilitate a drug felony. On appeal, the Kansas Court of Appeals held that although warrantless searches are generally illegal, the search of the car was justified as a search incident to arrest and under the automobile exception to the warrant requirement, so the district court correctly admitted the evidence at trial. The Court also held that venue is proper at each location where the parties to a telephone call are located, at least if the defendant knew the location of the person he was talking to. Here, the evidence showed that Barrett was in Lyon County when he called Torres about the deal, and Torres called Barrett to change the drug-deal location when he knew that Barrett was already at the first location they had agreed upon, which was in Lyon County. Additionally, the Court noted that there's normally no requirement that a defendant know what county he or she is committing a crime in for the State to prosecute the crime there, and it's clear in this case that Barrett was in Lyon County when Torres called him about the drug deal, so Lyon County was a proper venue.
State v. Schmidt __ Kan. App. 2d __, 385 P.3d 936 (Dec. 16, 2016) (Malone, CJ.) Petition for Review filed Jan. 13, 2017 Case No. 112,209 Schmidt was convicted of driving while under the influence of alcohol in 2014. Schmidt appealed, arguing that subjecting him to a blood test pursuant to the Kansas Implied Consent Law constituted an unreasonable warrantless search in violation of the Fourth Amendment because any consent given thereunder is not voluntary. The Kansas Court of Appeals found first that per the United States Supreme Court's decision in Birchfield v. North Dakota, 579 U.S. __, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), a driver cannot be criminally punished for refusing to submit to a warrantless blood draw, and consent to a warrantless blood test cannot be premised on the threat of criminal penalties for refusing to submit to the test; therefore, as Schmidt consented to the blood test after being read the Kansas informed consent advisories which inform a motorist that he can be criminally punished for refusing to submit, his warrantless blood draw did not fall under an exception to the Fourth Amendment's warrant requirement. However, the Court of Appeals next held that because the law enforcement officer relied in good faith on the Kansas Implied Consent Law prior to the United States Supreme Court's decision in Birchfield, the results of Schmidt's blood test were admissible under the good-faith exception to the exclusionary rule.
City of Dodge City v. Webb ___ Kan. ___, 381 P.3d 464 (Oct. 21, 2016) (Stegall, J.) Case No. 109,634 Orie Webb was convicted of driving under the influence of alcohol after the district court denied his motion to suppress the results of his breath test. The Kansas Supreme Court affirmed. Webb claimed that he was unconstitutionally coerced into submitting to the breath test because he consented after the officers unlawfully threatened to obtain a warrant for a blood test. The Kansas Supreme Court held that the Kansas Implied Consent law allows a law enforcement officer to obtain a warrant for a blood draw after a breath test refusal. Therefore, because the officer's threat to obtain a warrant for a blood test following Webb's refusal of a breath test was not prohibited by the Kansas Implied Consent law, Webb's subsequent consent to the breath test was not unconstitutionally coerced. The district court properly denied Webb's motion to suppress his blood test results.
32 State v. Keenan 304 Kan. 986, 377 P.3d 439 (Aug. 19, 2016) (Beier, J.) Case No. 108,550 Gregory Keenan drove to his son's grandmother's house late on the evening of December 23, 2010. Keenan was visibly impaired, but drove away with his son; the grandmother called the police. Officers Betsy Madl and Jason Hinkle met Keenan in the driveway of his residence before he entered the house. The officers observed signs that Keenan was under the influence of alcohol. Keenan entered his house to put his son down, and refused to allow the officers inside. The officers followed anyway, testifying later that they believed that exigent circumstances existed because Keenan could destroy or manipulate evidence of alcohol in his body, and because they believed there was probable cause to arrest Keenan for violation of a protection order based on information Hinkle received on the way to the house. Keenan was charged with felony DUI, refusing a preliminary breath test, and transporting an open container. He filed a motion to suppress the evidence obtained in the house. The district court ruled that the police were permitted to enter the house under exigent circumstances. Keenan appealed the denial of his motion to suppress. The Court of Appeals affirmed, holding that probable cause to arrest Keenan for violation of the protection order and for drunk driving existed before the officers entered the house, and that exigent circumstances—the possible loss, destruction, or concealment of evidence and the doctrine of hot pursuit— supported the warrantless entry. The Kansas Supreme Court affirmed, but for different reasons. It concluded that the officers had probable cause to arrest Keenan for driving under the influence before entering his home. The Court held that even if the Fourth Amendment to the United States Constitution should have prevented the officers from following Keenan into his home to effect the arrest, any evidence gathered and admitted at trial as a result was superfluous and would not have affected the ultimate outcome in Keenan's case. Therefore, the Court held that even if there was error, it was not reversible.
State v. Wissing 52 Kan. App. 2d 918, 379 P.3d 413 (July 29, 2016) (Gardner, J.) Petition for Review denied Oct. 21, 2016 Case No. 115,235 When Wissing was arrested, he had his wallet in his pocket. After he was handcuffed, he removed the wallet and placed it on a dresser. The officer searched the wallet and found drugs. The district court granted Wissing's motion to suppress, finding that the wallet was no longer in Wissing's control. The State filed this interlocutory appeal. The Court of Appeals held the district court erred because it analyzed the specific facts of the case instead of applying the categorical rule recently reaffirmed by the United States Supreme Court, Utah v. Strieff, 136 S. Ct. 2056, 2062-63 (2016), that the area accessible to the arrestee is searchable without the further justification of officer safety or evidence preservation.
State v. Kraemer 52 Kan. App. 2d 686, 371 P.3d 954 (Apr. 29, 2016) (Standridge, J.) Petition for Review filed May 31, 2016 Case No. 112,787 Kraemer was arrested for driving under the influence of alcohol after a routine traffic stop. Kraemer consented to a breath alcohol test after the officer gave him the implied-consent advisory, which informed Kraemer that if he refused to consent, he could be charged with a separate crime. On appeal, Kraemer argued that the officer didn't have probable cause to arrest him because a cat had interfered with his performance on the field-sobriety tests. The Court of Appeals rejected his argument because video footage showed the cat had been removed from the area before Kraemer made his errors. Kraemer also claimed that the district court erred in finding the good-faith exception to the exclusionary rule applied after the court determined that his consent to the breath-alcohol test was coerced. This case arose before the Kansas Supreme Court held that the statute criminalizing refusal and implied- consent advisory warning of the criminal-refusal statute were coercive and unconstitutional. The Court of Appeals concluded that the district court properly found the good-faith exception to the exclusionary rule applied because the officer acted in objectively reasonable reliance upon a facially valid statute requiring the officer to advise Kraemer of the criminal consequences of refusal, and the officer would not have known that the advisory was coercive.
33 State v. Mullen 304 Kan. 347, 371 P.3d 905 (Apr. 22, 2016) (Rosen, J.) Case No. 110,468 Jordan Mullen filed a motion to suppress evidence found in the search of a house where Mullen was staying after the post office, under police surveillance, delivered a package containing marijuana to the house. The Kansas Supreme Court affirmed the district court's denial of Mullen's motion. The court held probable cause supported the anticipatory warrant, even though there was no evidence the occupants of the home were involved in drug activity. The court also held the warrant was validly executed because the triggering event, a controlled delivery, occurred when the post office delivered the package under the control and supervision of law enforcement.
State v. Patterson 304 Kan. 272, 371 P.3d. 893 (Apr. 22, 2016) (Stegall, J.) Case No. 109,995 Wichita police obtained and executed a search warrant that described the place to be searched as "[t]he premises of 2720 N. Erie, Wichita, Sedgwick County, Kansas." The defendant was subsequently charged with crimes based in part on evidence found during the search of a car parked in the driveway of that address, in which the defendant's juvenile son (also identified as a resident of the home in the warrant) was sitting. The district court suppressed that evidence, finding the car was not within the scope of the warrant and the evidence would not have been inevitably discovered. The Kansas Supreme reversed, holding a warrant to search a described premises includes any automobiles on the premises that are either owned or under the control and dominion of the premises owner or resident, or, alternatively, those vehicles which appear, based on objectively reasonable indicia present at the time of the search to be so controlled.
State v. Nece 303 Kan. 888, 367 P.3d 1260 (Feb. 26, 2016) (Luckert, J.) Case No. 111,401 Following his arrest on suspicion of a DUI, Nece agreed to take a breath-alcohol test after officers told him pursuant to an implied consent advisory form that he could be charged with a crime if he refused to submit to the test. Nece moved to suppress the results of the breath test, arguing that his consent was coerced and therefore involuntary given that police told him of possible criminal charges for refusing the test. On review, the Kansas Supreme Court affirmed the district court's decision to suppress the test results. Because the court found the criminal refusal statute unconstitutional in State v. Ryce, ___ Kan. ___, 368 P.3d 342 (2016), Nece could not constitutionally be convicted of refusal to submit to a blood alcohol test as the implied consent advisory was inaccurate. Thus, the court held Nece's consent was involuntary.
State v. Wycoff 303 Kan. 885, 367 P.3d 1258 (Feb. 26, 2016) (Luckert, J.) (Stegall, J. dissenting) Case No. 110,393 (See case summary under DUI)
State v. Wilson 303 Kan. 973, 368 P.3d 1086 (Feb. 26, 2016) (Luckert, J.) (Stegall, J. dissenting) Case No. 112,009 (See case summary under DUI)
State v. Ryce 303 Kan. 899, 368 P.3d 342 (Feb. 26, 2016) (Luckert, J.) (Stegall, J. dissenting) Case No. 111,698 (See case summary under DUI)
34 SELF DEFENSE
State v. Beltz ___ Kan. ___, ___ P.3d ___, 2017 WL _____ (Jan. 27, 2017) (Stegall, J.) Case No. 111,785 (See case summary under FELONY MURDER)
SENTENCING
State v. Hambright ___ Kan. App. ___, ___ P.3d ___, 2017 WL 129947 (Jan. 13, 2017) (Arnold-Burger, J.) Case No. 110,976 Hambright pled guilty to criminal damage to property, which had a recommended probation period of 24 months. The district court, on its own motion, sentenced Hambright to 36 months of probation and ordered him to pay $60,000 in restitution at a rate of $500 per month. Hambright argued that the district court did not have substantial and compelling reasons for departing from the recommended term of probation and also that his restitution plan was unworkable. The Court of Appeals held that increasing Hambright's term of probation did not constitute a departure sentence, that the district court's decision to increase the probation was discretionary, and that the district court did not abuse its discretion. However, the Court of Appeals found that the district court abused its discretion in ordering Hambright to pay $500 a month because, given Hambright's limited income, the plan was unworkable.
State v. Corbin ___ Kan. ___, 386 P.3d 513 (Dec. 23, 2016) (Nuss, C.J.) Case No. 113,585 After Corbin pled no contest to one count of premeditated first-degree murder, an off-grid felony, he filed a motion pursuant to K.S.A. 2015 Supp. 21-6622, which precludes a district court from imposing a sentence of death, life without possibility of parole, or a mandatory term of imprisonment for premeditated first-degree murder upon a defendant determined to be a person with intellectual disability. Based upon its consideration of Corbin's motion and two evaluations he provided, the district court found that Corbin was not suffering from an intellectual disability as defined by K.S.A. 2015 Supp. 21-6622(h) and K.S.A. 76-12b01(i). The district court then imposed a hard 25 life sentence and Corbin appealed. While Corbin's appeal was pending, the 2016 legislature amended K.S.A. 76-12b01 to allow defendants to establish subaverage general intellectual functioning by means in addition to standardized intellectual testing. Because the parties did not challenge the retroactive application of the amendments, the Kansas Supreme Court assumed, without deciding, that the amendments applied retroactively. The court then reversed and remanded Corbin's case to the district court with directions to reconsider his motion under the current version of K.S.A. 76-12b01 in conjunction with K.S.A. 2015 Supp. 21-6622(b).
State v. Louis ___ Kan. ___, 384 P.3d 1 (Nov. 23, 2016) (Biles, J.) Case No. 110,853 (See case summary under JURIES AND INSTRUCTIONS)
State v. Herrmann ___ Kan. App. 2d ___, 384 P.3d 1019 (Nov. 18, 2016) (Standridge, J.) Petition for Review filed Dec. 19, 2016 Case No. 114,887 Herrmann entered a plea of no contest to one count of attempted aggravated indecent liberties with a child on April 16, 2012. The district court sentenced Herrmann to a term of 24 months’ imprisonment and 24 months’ postrelease supervision. The State later discovered that the period of postrelease supervision imposed by the district court at sentencing was illegal because it did not conform to K.S.A. 2011 Supp. 22-3717(d)(1)(G), which mandates lifetime postrelease supervision for persons convicted of a sexually violent crime. The State therefore moved to 35 correct illegal sentence. The district court granted the motion and resentenced Herrmann to lifetime postrelease supervision. Herrmann appealed, claiming the district court had no jurisdiction to modify his sentence because the original 24-month term was legal under K.S.A. 22-3717(d)(1)(D), which was amended in 2013 to retroactively eliminate the mandatory nature of lifetime postrelease supervision in K.S.A. 22-3717(d)(1)(G) for a person convicted of a sexually violent crime. Specifically, Herrmann argued that the amendment gave the court an option to impose a term of months based on the severity level of the sexually violent crime. Alternatively, Herrmann argued that the 2013 amendments to K.S.A. 22-3717(d)(1)(D) rendered the entire (d)(1) subsection ambiguous because the provisions of subparagraphs (D) and (G) both apply to persons who are convicted of sexually violent crimes but require different terms of postrelease supervision. Herrmann claimed the district court should have applied the rule of lenity and imposed the lesser of the two postrelease supervision terms. The Court of Appeals held that the 2013 amendments to K.S.A. 22-3717(d)(1)(D) did not alter the requirement in K.S.A. 22- 3717(d)(1)(G) that a person convicted of a sexually violent crime after July 1, 2006, receive lifetime postrelease supervision. Rather, the amended K.S.A. 2015 Supp. 22-3717(d)(1)(D) only applies to persons convicted of a sexually violent crime after July 1, 1993, but before July 1, 2006. The court further clarified that there are no persons convicted of a sexually violent crime to whom both subparagraph K.S.A. 2015 Supp. 22-3717(d)(1)(D) and subparagraph K.S.A. 2015 Supp. 22-3717(d)(1)(G) apply.
State v. Thomas ___ Kan. App. 2d ___, 383 P.3d 152 (Sept. 30, 2016) (Standridge, J.) (Gardner J., dissenting) Petition for Review filed Oct. 24, 2016 Case No. 114,433 A jury convicted Thomas of second-degree murder. A presentence investigation (PSI) report prepared before sentencing indicated that Thomas' criminal history scored B, based in part on a 1990 juvenile adjudication as "Burglary (Building Used As a Dwelling)" and classified on the PSI report as a person felony. The court sentenced Thomas to 586 months' in prison and 36 months' postrelease supervision, which was within the presumptive sentencing range. Thomas filed a motion to correct an illegal sentence arguing the district court erred by over- classifying his prior juvenile burglary adjudication as a person felony, which resulted in an illegal sentence. The Court of Appeals held that Thomas' case was not procedurally barred by the doctrines of waiver, invited error, res judicata, retroactivity, or because the State used the improper procedural vehicle to challenge the constitutionality of a sentence. The Court of Appeals concluded that the sentencing court violated Thomas' constitutional right by finding that the pre-KSGA juvenile burglary adjudication involved a dwelling and, as a result, misclassified that prior burglary as a person felony for purposes of calculating Thomas' criminal history score. In turn, this resulted in an illegal sentence that did not comply with the applicable statutory provision regarding the term of punishment authorized.
State v. Storer ___ Kan. App. 2d ___, 382 P.3d 467 (Sept. 16, 2016) (Leben, J.) Case No. 114,246 In 2009, the district court sentenced Andrew Storer to 36 months of probation with an underlying 216-month sentence. Storer then violated his probation, and the district court imposed a modified 120-month jail sentence. Storer appealed his probation revocation, and the Court of Appeals affirmed. Storer then filed a motion arguing that he was entitled to more jail-time credit, but the district court found that it didn't have jurisdiction because Storer should have appealed the jail-time credit issue within 14 days of his original sentence or as part of his probation-revocation appeal. The Court of Appeals reversed. Jail-time credit is rarely the primary focus at sentencing. Thus, the Court of Appeals held that as long as jail credit has not been the subject of contested proceedings or the product of judicial deliberation, courts have jurisdiction to correct incorrect jail-time credit in criminal judgments at any time under K.S.A. 22-3504(2), which permits courts to correct clerical errors in criminal judgments at any time.
36 State v. Shull ___ Kan. App. 2d ___, ___ P.3d ___, 2016 WL 4578151 (Sept. 2, 2016) (Malone, C.J.) Petition for Review filed Sept. 30, 2016 Case No. 114,357 (See case summary under JURISDICTION)
State v. McCormick ___ Kan. ___, 378 P.3d 543 (Sept. 9, 2016) (Beier, J.) Case No. 109,985 (See case summary under EVIDENCE)
State v. Tafoya 304 Kan. 663, 372 P.3d 1247 (June 17, 2016) (Stegall, J.) Case No. 107,684 Tafoya was convicted of a fourth DUI in 2008 and appealed his sentence to the Kansas Court of Appeals. The Court of Appeals reversed the portion of his sentence requiring him to pay a $2,500 fine on the grounds that the district court had not considered Tafoya's ability to pay. Prior to the district court's reconsideration, the law was changed to limit the period of time that district courts lookback to determine whether a DUI conviction is a defendant's first, second, etc. On remand, Tafoya argued that the new law should be applied retroactively to his entire sentence. The district court declined Tafoya's request and modified only the portion of his sentence involving the fine. The Court of Appeals again affirmed. On appeal to the Supreme Court, the question to be resolved was whether Tafoya was sentenced in 2008 or on remand in 2012. The Supreme Court held that the limited mandate of the Court of Appeals to the district court to reconsider the issue of Tafoya's ability to pay the fine was not an invitation for the district court to resentence Tafoya. As a result, Tafoya's sentence was final in 2008 and the changes in the law could not be applied to resentence him in 2012.
State v. Nguyen 304 Kan. 420, 372 P. 3d 1142 (May 20, 2016) (Nuss, CJ.) Case No. 112,316 Nguyen pled no contest to felony murder under K.S.A. 21-5402(a)(2). At her sentencing, she moved for a durational departure from a life sentence. The district court denied the motion, finding it did not have discretion to depart from the life sentence, and imposed a life sentence with parole eligibility after 20 years. On review, the Kansas Supreme Court affirmed the district court's ruling and held K.S.A. 21-6806(c) does not give district courts discretion to depart from a life sentence for felony murder.
State v. Lee 304 Kan. 416, 372 P.3d 415 (Apr. 29, 2016) (Rosen, J.) Case No. 113,562 The State of Kansas appealed from an order by the district court that granted Lee's motion to correct an illegal sentence. Lee's motion was based on the holdings in Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), and State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014). The district court agreed with Lee that the sentencing procedure violated Alleyne. The district court also ruled that retroactivity was not a relevant inquiry because it would be unfair to punish a defendant who was the victim of bad timing. The Supreme Court reversed the district court, ruling that Lee's claim is inappropriate because a motion to correct an illegal sentence cannot be used to attack the constitutionality of a sentencing statute.
37 State v. Vasquez 52 Kan. App. 2d 708, 371 P.3d 946 (Apr. 29, 2016) (Standridge, J.) Petition for Review filed May 25, 2016 Case No. 113,473 Vasquez pled guilty to one count of aggravated escape from custody. Vasquez' presentence investigation report reflected five crimes classified as person felonies in his criminal history, resulting in a criminal history score of "A." Four of the person felony convictions were from 1978 and identified as "burglary of a residence"; one was a 1982 conviction for attempted robbery. Based on this criminal history score, the district court sentenced Vasquez to 65 months in prison. Vasquez filed a motion to correct an illegal sentence arguing the district court erred by over-classifying his prior burglary and robbery convictions as person felonies, which resulted in an illegal sentence. The Court of Appeals held that Vasquez' case was not procedurally barred by the doctrines of waiver, res judicata, or retroactivity. The court also held that the Kansas Supreme Court's decision in State v. Warrior, 303 Kan. __, 368 P.3d 1111 (2016), did not bar Vasquez' claim as brought under the wrong procedural vehicle. On the merits, the Court of Appeals concluded that the sentencing court violated Vasquez' constitutional right by finding the four pre-KSGA burglaries involved a dwelling and, as a result, misclassified those prior burglaries as person felonies for purposes of calculating Vasquez' criminal history score, which resulted in an illegal sentence that did not comply with the applicable statutory provision regarding the term of punishment authorized.
State v. Shank 304 Kan. 89, 369 P.3d 322 (Apr. 15, 2016) (Nuss, C.J.) Case No. 112,982 (See case summary under RESTITUTION)
State v. Boysaw 52 Kan. App. 2d 635, 372 P.3d 1261 (Apr. 8, 2016) (Schroeder, J.) Petition for Review filed May 6, 2016 Case No. 112,834 (See case summary under EVIDENCE)
State v. Logsdon 304 Kan. 3, 371 P.3d 836 (Apr. 1 2016) (Luckert, J.) Case No. 110,415 (See case summary under EVIDENCE)
State v. Petersen-Beard 304 Kan. 192, 377 P.3d 1127 (Apr. 22, 2016) (Stegall, J.) Case No. 108,061 (See case summary under KANSAS OFFENDER REGISTRATION ACT)
State v. Smith 303 Kan. 773, 367 P.3d 296 (Feb. 12, 2016) (Stegall, J.) Case Nos. 107,836 & 107,837 Smith appealed the district court's denial of his motion to correct his sentence, arguing that the district court erred by classifying his pre-Kansas Sentencing Guidelines Act (KSGA) convictions as person felonies. The Kansas Supreme Court applied State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), holding that the district court must classify pre-KSGA convictions as either person or nonperson felonies by comparing the statute of the prior offense to the comparable statute in effect when the current crime of conviction was committed.
38 SPEEDY TRIAL
State v. Spencer Gifts 304 Kan. 755, 374 P.3d 680 (July 8, 2016) (Luckert, J.) Case No. 111,398 Spencer Gifts, LLC was charged with 10 counts of promoting obscenity harmful to minors. Though it had not been on bond, Spencer Gifts moved to dismiss all charges when it was not tried within 180 days after arraignment, relying on K.S.A. 22-3402(b). The district court dismissed the charges, and State appealed. In a split decision, based on precedent from the Supreme Court, the Court of Appeals affirmed. The Supreme Court overruled the case that the Court of Appeals had relied on, determining that the court had added words to the unambiguous language of 22-3402(b) to find that the statute applied to defendants who had not been on bond. The court, however, affirmed the Court of Appeals decision and the district court's dismissal of the charges because Spencer Gifts' right to dismissal had vested under the previously binding precedent.
State v. Dupree 304 Kan. 43, 371 P.3d 862 (Apr. 8, 2016) (Luckert, J.) Case No. 111,518 A group of men burglarized a home, with one murdering a man inside that home. Dupree was linked to the crime, and a jury convicted him of several crimes, including felony murder. Dupree appealed, arguing that various errors required his convictions be reversed. But the Supreme Court affirmed, holding: (1) recent caselaw established that his statutory speed trial rights were not violated because the right to receive a dismissal for a speedy trial violation is not a vested one; (2) the State provided a race-neutral reason for striking African-American jurors and no purposeful discrimination occurred; (3) the photographs Dupree objected to were admissible; (4) cumulative error did not deprive him of a fair trial; and (5) he did not preserve the remaining argument for appeal.
STATUTORY INTERPRETATION AND CONSTRUCTION
State v. Holsted 52 Kan. App. 2d 655, 370 P.3d 1207 (Apr. 8, 2016) (Hill, J.) Case No. 112,846 Holsted was convicted of cultivating five or more marijuana plants. In his home, police found one large marijuana plant with a complete root system and 29 small marijuana cuttings with no visible roots in an aeroponic/hydroponic grow system. On appeal, Holsted argued that the 29 cuttings were not "plants." The court adopted a test to determine if a marijuana cutting is a plant: Does the cutting have some visible root formation? Holsted's conviction was reversed.
Doe v. Thompson 304 Kan. 291, 373 P.3d 750 (Apr. 22, 2016) (Johnson, J.) Case No. 110,318 (See case summary under EX POST FACTO CLAUSE)
State v. Redmond 304 Kan. 283, 371 P.3d 900 (Apr. 22, 2016) (Johnson, J.) Case No. 110,280 (See case summary under EX POST FACTO CLAUSE)
State v. Buser 304 Kan. 181, 371 P.3d 886 (Apr. 22, 2016) (Johnson, J.) Case No. 105,982 (See case summary under EX POST FACTO CLAUSE)
39 State v. Jordan 303 Kan. 1017, 370 P.3d 417 (Mar. 25, 2016) (Beier, J.) Case No. 106,409 (See case summary under COMPULSORY JOINDER)
SUFFICIENCY OF THE EVIDENCE
State v. Netherland ___ Kan. ___, 379 P.3d 1117 (Sept. 30, 2016) (Beier, J.) Case No. 112,806 (See case summary under PROSECUTORIAL MISCONDUCT)
State v. Belt ___ Kan. ___, 381 P.3d 473 (Oct. 21, 2016) (Beier, J.) Case No. 94,435 (See case summary under LESSER INCLUDED OFFENSES)
State v. Wilkins ___ Kan. ___, 378 P.3d 1082 (Sept. 9, 2016) (Malone, S.J.) Case No. 109,313 Breonna M. Wilkins was convicted of aggravated intimidation of a witness. A divided Court of Appeals panel affirmed her conviction. On review to the Kansas Supreme Court, Wilkins argued, in relevant part, that the evidence was insufficient to support her conviction under K.S.A. 2011 Supp. 21-5909. The Supreme Court held that the plain language of the statute does not prohibit someone from dissuading a person not to take a plea bargain or to enter a guilty plea; rather, it deals with dissuading a witness or victim from providing testimony at a proceeding. No evidence was presented that Wilkins ever told any witness not to testify; the evidence established that Wilkins attempted to dissuade a witness from pleading guilty. Additionally, the "witness" in question was a codefendant in a murder case. At the time Wilkins was attempting to dissuade the witness from taking the plea bargain, no evidence was presented that the witness had waived her right against self-incrimination under the Fifth Amendment to the United States Constitution. Because the witness' status as a codefendant with a constitutional privilege against self-incrimination was a bar to her "giving testimony" under K.S.A. 2011 Supp. 21-5909(a)(1), the Supreme Court held that there was insufficient evidence to prove beyond a reasonable doubt that Wilkins dissuaded the witness from "giving testimony." As a result, the Supreme Court reversed Wilkins' conviction and vacated her sentence.
VENUE
State v. Torres ___ Kan. ___, ____ P.3d ___, ____ WL ______(Dec. 23, 2016) (Leben, J.) Case No. 114,269 (See case summary under SEARCH AND SEIZURE)
WAIVER OF JURY TRIAL
State v. Rizo 304 Kan. 974, 377 P.3d 419 (Aug. 12, 2016) (Johnson, J.) Case No. 112,824 Javier Rizo appealed his multiple convictions, arguing (1) that he did not knowingly and voluntarily waive his right to a jury trial because the district court failed to advise him about what rights he would waive by choosing a
40 bench trial on stipulated facts, and (2) that the district court erred in denying his request for a departure sentence. Rizo had failed to raise his jury-trial-waiver claim before the district court, but the Kansas Supreme Court agreed to consider the issue because preservation is a prudential rule. The Court held that because the defendant's waiver of a jury trial is separate and distinct from the defendant's agreement to a bench trial on stipulated facts, the district court is not required to inform the defendant of the consequences of a bench trial on stipulated facts before the defendant may knowingly waive his right to a jury trial. On the second issue, the court determined that Rizo was sentenced to the presumptive sentence for felony murder, and it does not have jurisdiction to consider a challenge to a presumptive sentence.
WAIVER OF RIGHT TO APPEAL
State v. Shull ___ Kan. App. 2d ___, ___ P.3d ___, 2016 WL 4578151 (Sept. 2, 2016) (Malone, C.J.) Petition for Review filed Sept. 30, 2016 Case No. 114,357 (See case summary under JURISDICTION)
WITNESSES
State v. Dupree 304 Kan. 377, 373 P.3d 811 (Apr. 29, 2016) (Luckert, J.) Case No. 110,311 (See case summary under AMENDMENT TO CHARGING DOCUMENT)
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