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Kansas Supreme Court Docket for September 13-17, 2021

09 Sep 2021 8:51 AM | Amanda Kohlman (Administrator)

Kansas Supreme Court docket for September 13-17, 2021

The cases summarized below are on the Kansas Supreme Court September 13–17 docket. All cases will be heard by videoconference and livestreamed on the Kansas Supreme Court YouTube channel.

This docket differs from in-person oral arguments in the Supreme Court courtroom. Instead of hearing cases back-to-back, the court will hear cases at 9 a.m., 11 a.m., and 1:30 p.m., with a recess after each.

9 a.m. • Monday, September 13

Appeal No. 120,434: State of Kansas v. Dwayne Lynn Patton

Reno County: (Petition for Review) Patton was convicted of one count of felony driving under the influence. At sentencing, the district court found this was Patton’s fourth or subsequent DUI conviction and sentenced him to 12 months in jail. The Court of Appeals affirmed Patton’s conviction and sentence. The Court of Appeals held that the 2018 Amendments to K.S.A 8-1567(i) and (j) apply to Patton’s DUI conviction even though the crime was committed in 2016. Issue on review is whether appellants precluded from bringing their claims based on res judicata and prior Kansas Supreme Court precedent.

Appeal No. 122,046: State of Kansas v. Jessica Lynn Myers

Johnson County: (Petition for Review) Myers was charged with felony driving under the influence, third offense. Myers waived her preliminary hearing and pled not guilty and moved to strike her two prior Missouri convictions for driving while intoxicated from being used to elevate her current DUI charge to a felony. The district court granted Myers’ motion, and the State timely filed this interlocutory appeal. The State’s issue on review is whether the 2018 amendments to K.S.A 8-1567 permit a district court to consider, for purposes of enhancing a present DUI offense, prior driving the influence convictions from Missouri. In a cross petition for review, Myers’ issues are whether the Court of Appeals erred by finding that it had jurisdiction to consider the State’s claim under K.S.A 22-3603, and if the Court of Appeals correctly held that the district court properly followed the plan and unambiguous language of K.S.A. 8-1567.

11 a.m. • Monday, September 13

Appeal No. 121,765: First Security Bank v. David Buehne and Linsay Buehne,et al.

Meade County: (Petition for Review) First Security Bank filed this foreclosure action against David and Linsay Buehne after they defaulted on a commercial promissory note in the principal amount of $323,000. The Buehnes responded to the foreclosure petition by alleging that the Bank’s claim is barred by the five-year statute of limitations set forth is K.S.A. 60-511. The Bank asserted that the Buehnes had waived their right to assert the statute of limitations as an affirmative defense based on the express terms of the commercial promissory note. The district court entered a final judgement of foreclosure in favor of the Bank and against the Buehnes. The Court of Appeals affirmed. Issues on review are whether: 1) the Court of Appeals erred in finding the advance waiver of the statute of limitations was not void against public policy; and 2) the district court erred in holding the promissory note was not a payable on demand note and that the statute of limitations had not run prior to suit being filed?

1:30 p.m. • Monday, September 13

Appeal No. 121,916: State of Kansas v. Janet M. Allen

Clay County: (Petition for Review) A jury convicted Allen of forgery, felony theft, and misdemeanor theft. The State seeks review of a Court of Appeals decision reversing Allen’s convictions and ordering the charges be dismissed based on a violation of her right to be present at a critical stage and on a violation of her statutory speedy trial rights. Issues on review are whether: 1) due process requires a formal hearing on every request for a continuance that would extend a trial beyond its statutory speedy trial date; 2) the Court of Appeals should have remanded for an evidentiary hearing instead of dismissing the convictions, even if a hearing was necessary; and 3) Allen preserved her statutory speedy trial claim for appeal.

9 a.m. • September 14

Appeal No. 121,815: Ronell Williams v. State of Kansas

Wyandotte County: (Petition for Review) At 14 years old, Williams was convicted of two counts of premeditated first-degree murder arising from the death of two victims. He is serving two concurrent hard life sentences. Williams brought an action under K.S.A 60-1507 challenging his hard 50 sentence as constitutionally disproportionate under the Eighth Amendment. The district court dismissed the motion as untimely and successive. The Court of Appeals reversed and remanded to the district court with specific directions to resentence Williams on the premeditated fir-degree murder convictions based on the constitutional protections cited in Miller v. Alabama, 567 U.S. 460. Issues on review are whether: 1) the Court of Appeals erred in holding that Williams’ hard-50 sentence, which was imposed under a discretionary scheme and explicitly provided the opportunity for parole, ran afoul of Miller because it only held that life without parole for those under the age of 18 at the time of their crime violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments,” and 2) this Court should affirm Williams’ sentence if it finds that the hard 50 is the “functional equivalent” of a sentence of life without the possibility of parole.

11 a.m. • Tuesday, September 14

Appeal No. 120,329: Dawn Herington, individually, and as mother and next friend of B.D.J.L., minor child and Heir-at-Law of Troy Lanning II, Deceased, and as Special Administrator of the Estate of Troy Lanning II, Deceased v. City of Wichita and City of Wichita Police Department Officer Randy Williamson, individually

Sedgwick County: (Petition for Review) Wichita Police Officer Randy Williamson fatally shot Lanning after pursuing him in a high-speed car chase and then on foot. Herington filed an action for damages against Williamson and the City of Wichita in the United States’ District Court for the District of Kansas alleging violations of Lanning’s civil rights under federal law and several state law tort claims. The federal district court granted summary judgement to Williamson on the federal claims based on qualified immunity and to the city on the federal claims based on several other grounds going to their merits. The district court dismissed the state law claims for lack of jurisdiction without ruling on their merits. Herington refiled the state claims in Sedgwick County District Court in this case. The district court granted summary judgement to Williamson and the City because those claims had been asserted in the federal action and were later dismissed without any consideration of their validity. The Court of Appeals held the district court properly applied Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 403-04, 949 P.2d 602 (1997) and Rhoten v. Dickson, 290 Kan. 92, 223 P.3d 786 (2010) in entering judgement for the defendants based on res judicata. Issue on review is whether appellants are precluded from bringing their claims based on res judicata and prior Kansas Supreme Court precedent.

1:30 p.m. • Tuesday, September 14

Appeal No. 123,855: In the matter of David Phillip Leon

Original Proceeding related to Attorney Discipline: Leon was admitted to the practice of law in April 1993. Leon’s ethical issues are related to accepting attorney fees for representing clients, improper fee agreements, not depositing attorney fees in a lawyer trust account, misrepresenting client communications, failure to properly represent clients, and not cooperating with the investigation by the Disciplinary Administrator’s office. The disciplinary administrator recommends that Leon be disbarred. The hearing panel recommends Leon’s license to practice law be indefinitely suspended. Leon requests he be allowed to continue to practice law subject to his proposed plan of probation.

Appeal No. 123,818: In the matter of Brent L. Winterberg

Original Proceeding Related to Attorney Discipline: Winterberg was admitted to the practice of law in Kansas in October 1993, the same year he was licensed in Missouri. In 2018, Winterberg mishandled and mismanaged a post judgment qualified Domestic Relations Order in a divorce action that resulted in a substantial loss to his client. The disciplinary administrator recommends that Winterberg’s license to practice law be suspended for 90 days. Both the hearing panel and respondent agreed with the recommended 90-day suspension.

9 a.m. • Wednesday, September 15

Appeal No. 121,447: Catherine Roll, a disabled person, by and through her co-guardians Teresa Roll Kerwick and Mary Ann Burns v. Laura Howard, Secretary of the Kansas Department for Aging and Disability Services, and Mike Dixon, Superintendent of the Parsons State Hospital and Training Center

Sedgwick County: (Petition for Review) Roll is a patient at Parsons State Hospital, where she has been treated for decades for an intellectual disability and schizophrenia. In 2016, the Department of Aging and Disability Services, with Parsons, indicated the intent to transfer Roll to a more integrated community-based program. Roll’s guardians sought a permanent injunction to prevent the transfer, alleging the Americans with Disabilities Act and the Social Security Act prevented the Department from transferring her without her consent.

The district court found that the Department had shown that the treatment available at a community-based program was appropriate to meet Roll’s needs. The court also found that the ADA nor SSA prevented transferring her to a different program. The district court and the Court of Appeals upheld the transfer. Issues on review are whether: 1) the Court of Appeals incorrectly applied rules of statutory interpretation concerning the ADA and the SSA; and 2) the record contradicted the Court of Appeals and the district court’s conclusions that Roll was not in “Active Treatment.”

11 a.m. • Wednesday, September 15

Appeal No. 120,339: State of Kansas v. Geldy Gutierrez-Fuentes

Sedgwick County: (Petition for Review) In 2018, a jury convicted Gutierrez-Fuentes of two counts of aggravated battery, one count of aggravated burglary, and one count of criminal threat. It acquitted him of the lone rape charge. The district court sentenced Gutierrez-Fuentes to 82 months in prison and he appealed the conviction and sentence. The Court of Appeals affirmed his convictions. The issues on review are whether: 1) the Court of Appeals properly analyzed the constitutional speedy trial issue by finding that Gutierrez-Fuentes did not establish actual prejudice: 2) the State presented sufficient evidence to sustain the aggravated burglary conviction; and 3) the district court erred in applying the “language conduit” exception to the hearsay rule.

Appeal No. 118,792: State of Kansas v. Cameron Michael Tyler

Finney County: (Petition for Review) A jury found Taylor guilty of battery against a law enforcement officer, intentional criminal threat and possession of marijuana—all felony charges. The Court of Appeals reversed the marijuana conviction because the district court erred in denying Taylor’s motion to suppress the drugs as the product of an unconstitutional search and seizure. The Court of Appeals affirmed in part and reversed in part and remanded to the district court with directions to both suppress the marijuana and to grant Taylor a new trial on the possession charge. The issues on review are whether: 1) the Court of Appeals erred by not considering the wrongfully admitted marijuana in its cumulative error analysis; and 2) the Court of Appeals erred in concluding that the cumulative effect of all five identified trial errors did not delay Taylor a fair trial.

1:30 p.m. • Wednesday, September 15

Appeal No. 121,676: State of Kansas v. Wesley S. Cousins

Sumner County: (Petition for Review) Cousins appeals his conviction of driving under the influence claiming the district court erred by denying his motion to suppress the results of his evidentiary breath test. Cousins contends that his consent to be tested was involuntary and coerced because implied consent advisories stated that 1) Kansas law “requires” drivers to submit to testing; and 2) refusal to submit to testing may be used as evidence at trial. Cousin also claims the statutory provision allowing test refusal evidence to be used against a driver is unconstitutional.

 

The Court of Appeals found that the implied consent advisory misstated the law, so Cousins’ consent to the breath test was involuntary and the breath test violated his Fourth Amendment rights. The Court of Appeals concluded that that the test results are admissible under the good-faith exception to the exclusionary rule. They also held Cousins lacks standing to challenge the constitutionality of the statutory provision allowing test refusal evidence to be used against a driver. The issues on review are whether: 1) the Court of Appeals erred in applying the good-faith exception to the exclusionary rule; and 2) the advisory that refusal to submit to testing may be used as evidence at trial was inaccurate and coercive.


9 a.m. • Friday, September 17

Appeal No. 122,301: State of Kansas v. Denis Antonio Alfaro- Valleda

Wyandotte County: (Criminal Appeal) Alfaro-Valleda was convicted of first-degree murder. The trial court sentenced Alfaro-Valleda to a hard 50 sentence. The issues on appeal are whether: 1) the district court erred by admitting an autopsy photograph even though the State did not introduce testimony from a coroner; 2) the prosecutor committed reversible error during closing argument by repeatedly asserting “we know” particular contested facts; 3) the district court erred by failing to instruct the jury that certain out-of-court statements could not be used to prove the truth of the matter asserted; 4) placing “guilty” as the first choice on a verdict form created a powerful incentive for juries to implicitly disregard the presumption of innocence and deny a defendant a fair trial; and 5) cumulative error denied Alfaro-Valleda a fair trial.

11 a.m. • Friday, September 17

Appeal Nos. 121,682 and 121,823: State of Kansas v. J’Mario D. Roberts

Sedgwick County: (Petition for Review) Roberts pled guilty to several felony counts in two district court cases as part global plea agreement. The district court used several municipal adjudications to increase his criminal history score but granted him probation on both cases. They later revoked those probations and ordered Roberts to serve his prison sentences.

In the Court of Appeals, Roberts argued that the district court abused its discretion by imposing his underlying sentence. He used State v. Obregon, 309 Kan. 1267, 444 P.3d 331 (2019), to argue that the State failed to meet its burden of proving Roberts’ municipal adjudications could be included in his criminal history. The Supreme Court granted review of Roberts’ criminal history issue. The issue on review is whether the Court of Appeals erred by failing to apply Obregon to his criminal history challenge.

1:30 p.m. • Friday, September 17

Appeal No. 121,220: State of Kansas v. Monroe Eugene Reed-Chism

Sedgwick County: (Petition for Review) A jury convicted Reed-Chism of knowingly committing aggravated battery and sentenced him to 13 months’ imprisonment followed by 12 months’ post release supervision. On appeal, Reed-Chism challenged the jury instruction, prosecutor error, and cumulative error. The Court of Appeals affirmed his convictions. The issues on review are whether: 1) the trail court erred by not instructing the jury on reckless aggravated battery as a lesser included offense; 2) the prosecutor committed reversible error by misstating the evidence during closing arguments; and 3) cumulative error denied Reed-Chism a fair trial.

Appeal No. 123,708: In the matter of Mitchell Christians

Original Proceeding Related to Attorney Discipline: Christians was admitted to practice law in 1986. Christians’ ethic violations revolved around his failure to timely docket an appeal and then failure to timely file his appellate brief which resulted in the dismissal of the appeal by the Court of Appeals. Christians stipulated to the violations and indicated he does not regularly check his email and has employees who are responsible for calendaring and notifying him of deadlines. The disciplinary administrator recommends a 90-day suspension, and the hearing panel recommended a period of suspension. Christians’ recommendation was unclear but appeared to be that his license not be suspended.

Summary calendar; no oral argument

When a case does not present a new question of law, and oral argument is deemed neither helpful to the court nor essential to a fair hearing of the appeal, it is placed on the summary calendar. These cases are deemed submitted without oral argument.

Appeal No. 120,845: State of Kansas v. Jeremy L. Dailey

Sedgwick County: (Petition for Review) Daily pled guilty to theft of air conditioning coils. The district court ordered Dailey to pay restitution in an amount equal to the cost of four condenser coils and four A-frame coils. The State agreed with Dailey’s claim that substantial competent evidence did not establish that Dailey stole the number and type of coils the district court used to calculate the restitution amount. The Court of Appeals remanded the cast to the district court for “an additional hearing to establish the factual predicates for a lawful restitution order.” The issues on review are whether: 1) the State is prohibited by the Fifth Amendment from reproving its case because it would amount to a second prosecution for the same offense after and conviction if the State previously failed to present sufficient evidence to prove an ordered amount of restitution; and 2) the Court of Appeals effectively eliminated the State’s burden to prove the amount of restitution.

Appeal No. 123,211: State of Kansas v. Robert Lewis Jackson

Shawnee County: (Criminal Appeal) Jackson was convicted in 1995 of two off-grid first degree murder charges and multiple KSGA offenses and sentenced to two consecutive life terms, one being a “hard 40”, along with a controlling consecutive guideline sentence of 251 months. Jackson claims that his “hard 40” sentence was illegal when pronounced because the State failed to strictly comply with the notice requirements of K.S.A. 21-4624. The district court denied Jackson’s motion. The issue on review is whether the district court erred in denying Jackson’s motion to correct an illegal sentence because the State failed to strictly comply with the notice requirements for imposing an enhanced life sentence.

Appeal No. 123,145: State of Kansas v. Andrew Wallace Ellington

Sedgwick County: (Criminal) Ellington pled guilty to first-degree murder and second-degree murder. The district court followed the plea agreement and imposed a sentence of 155 months’ imprisonment for second-degree murder and a consecutive hard 25 sentence for first-degree murder. Ellington filed a motion to withdraw his plea claiming excusable neglect because he was not advised by counsel that he could file a motion to withdraw his plea. The district court concluded Ellington failed to establish excusable neglect and summarily denied the motion. Issue on review is whether the district court abused its discretion in finding Ellington failed to show exceptional circumstance for consideration of his untimely motion to withdraw his post-sentencing guilty plea.



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