Appeal No. 120767: State of Kansas v. Anita Jo Albano

Archived oral argument video
The Kansas Supreme Court affirmed Albano's sentence imposed by Riley County District Court. Albano argued the Kansas Sentencing Guidelines Act violates Section 5 of the Kansas Constitution Bill of Rights because it allows a judge, rather than a jury, to find the existence of prior convictions for use in determining a defendant's sentence. On review, the Supreme Court rejected Albano's argument. The Supreme Court held Section 5 does not guarantee defendants the right to have a jury determine sentence-enhancing prior convictions because no such jury trial right existed as common law when the Kansas Constitution was adopted in 1859.

Chief Justice Marla Luckert announced today that a few suspensions involving statutory time requirements for court proceedings that were included in an order she signed in March remain in effect.

Luckert made the announcement after learning the Legislative Coordinating Council voted today to extend the state of disaster emergency until June 15 due to ongoing COVID-19 pandemic.

“I continue to evaluate the pandemic’s impact on our communities and our courts to advise me when I should end the few suspensions that remain in effect,” Luckert said. “Any action I take to change the status of these suspensions will include advance notice.”

Administrative Order 2021-PR-020, which Luckert signed at the end of March, reinstated most time limitations and deadlines for court proceedings effective April 15. However, it kept in place a few time suspensions, which are more fully described in the order. The Legislature took action to suspend statutory speedy trial deadlines in criminal cases through 2021 HB 2078, a bill requested by the Kansas County and District Attorneys Association.

The Kansas Supreme Court today issued an administrative order, guidance documents, and personnel policies related to the COVID-19 pandemic. 

"Over the last year, Kansas courts continued to serve their communities either in person following statewide safety protocols, or remotely through video hearings and online services," said Chief Justice Marla Luckert. "With approved COVID-19 vaccines more readily available, courts are ready to adopt updated protocols that reflect local health conditions, and our order today gives that direction."

The Supreme Court manages the state court system through policy and procedure set out in administrative orders, and that includes managing the pandemic response.

Orders dating to the beginning of the pandemic provided uniform health and safety protocols applied to courts statewide. Today’s order gives chief judges the authority and responsibility to adopt minimum standard health protocols necessary based on local health conditions.

The order also encourages courts to continue using remote hearings to dispose of cases safely and efficiently.

Administrative Order 2021-PR-048

2021-PR-048 requires all district and appellate courts in Kansas to develop and follow minimum standard health protocols to avoid exposing court users, staff, and judicial officers to COVID-19.

The chief judge in each of the state’s 31 judicial districts is responsible for developing protocols for all courts within each district. Each district must have a COVID-19 screening and communication protocol, and the protocol must consider whether physical distancing and masking are necessary based on local health conditions.

Guidance documents

The Supreme Court also issued guidance documents for developing minimum standard health protocols and for conducting jury trials during COVID-19.

Supreme Court Guidance for Developing Minimum Standard Health Protocols

Supreme Court Guidance for Conducting Jury Proceedings

The minimum standard health protocol guidance is new. The jury trial guidance is an updated version of the prior Supreme Court Mandates and Guidance Regarding Resuming Jury Proceedings.

"This guidance will help chief judges as they develop health protocols and jury trial procedures, while also giving them flexibility to adapt to health conditions in their judicial districts," Luckert said. "Even as approved vaccines become readily accessible, courts should continue to apply precautionary measures as necessary for public confidence in our courts and to protect the integrity of trial by jury, a cornerstone of our justice system."

Personnel Policies

Prior COVID-19 operations orders had specific COVID-19 personnel policies for the judicial branch workforce. Going forward, personnel policies will no longer be included in administrative orders but will be available on the kscourts.org website. This gives judicial branch employees easy access to information they need while not burdening court users with information that doesn’t apply to them.

Court response to COVID

For all court actions related to the pandemic, visit Kansas courts response to COVID-19.

Appeal No. 111,447: State of Kansas v. Victor Valdiviezo-Martinez

Archived oral argument video
The Kansas Supreme Court affirmed a conviction for identity theft in a case in which a person used someone else's identifying information when applying for a job. The defendant applied for the job in 2005 but was not arrested until 2012. The Supreme Court held the 2012 version of the identity theft statute applied because identity theft is a continuing offense and therefore the prosecution commenced within the applicable statute of limitations. The Supreme Court also rejected the defendant's argument the State failed to prove he intended to defraud his employer because the wages he received were in exchange for labor performed; the Supreme Court recognized that employment itself is a thing of value apart from wages and that using fraudulent documents to obtain a thing of value satisfies the statutory elements of identity theft. Finally, the Supreme Court rejected the defendant's argument the identity theft statute was unconstitutionally vague.

THIRD JUDICIAL DISTRICT

ANNOUNCEMENT REGARDING LIMITED ACTIONS CASES – DISMISSAL LISTS WILL RESUME JUNE 1, 2021

Dismissal lists for limited actions cases under DCR 3.213(5) were suspended in March 2020 due to the COVID-19 pandemic. Dismissal lists will resume on June 1, 2021. All cases currently eligible for the dismissal list will be noticed on June 1, 2021, for dismissal 90 days thereafter under conditions outlined in the local rule.

Appeal No. 115,184: Ziad Khalil-Alsalaami v. State of Kansas Archived oral argument video  The Kansas Supreme Court affirmed Riley County District Court's denial of Khalil-Alsalaami's motion for post-conviction relief. After Khalil-Alsalaami's two convictions for aggravated criminal sodomy were affirmed on direct appeal, he filed a motion arguing his convictions should be reversed because his trial counsel and appellate counsel were ineffective, thus violating his right to counsel under the Sixth Amendment to the U.S. Constitution. Khalil-Alsalaami, who is not a native English speaker, alleged among other deficiencies that his trial counsel failed to secure an interpreter during trial or fully advise him of his statutory right to an interpreter and appellate counsel failed to raise this issue on direct appeal. On rehearing, the Supreme Court held Khalil-Alsalaami had either failed to show counsel's performance was deficient or failed to show that counsel's deficient performance prejudiced his right to a fair trial. To the extent that Khalil-Alsalaami and the State presented conflicting evidence at the hearing on his motion, the Supreme Court determined it was limited on review to deciding whether substantial competent evidence supported the district court's factual findings. In other words, the Supreme Court could not reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. Finally, the Supreme Court held that while a defendant's due process right to be present includes the right to have proceedings translated into a language he or she can understand, the district court's finding—that Khalil-Alsalaami possessed sufficient English comprehension to meaningfully participate in his defense—was supported by substantial competent evidence. Therefore, trial counsel's alleged failure to fully advise Khalil-Alsalaami of his statutory right to an interpreter did not require reversal of his convictions.

Appeal No. 120,783: State of Kansas v. Patrick M. McCroy Archived oral argument video                           The Kansas Supreme Court dismissed the State's appeal of Reno County District Court's disposition for McCroy's probation violation. The State argued the district court imposed a sanction that did not comply with the statute governing sanctions for probation violations, thus constituting an illegal sentence. On review, the Supreme Court held it lacked jurisdiction to hear the State's appeal. The Supreme Court upheld a prior decision finding Kansas' illegal sentence statute provides appellate jurisdiction to hear the State's appeal of an illegal sentence. However, the Supreme Court held the illegal sentence statute did not provide appellate jurisdiction in this case because a district court's failure to comply with the statute governing sanctions for probation violations does not fall within the statutory definition of an illegal sentence as defined by the Legislature. The Supreme Court further held no other statute provided a jurisdictional basis for the State's appeal.

Appeal No. 121,284: State of Kansas v. Casimiro Nunez Archived oral argument video Nunez hosted a party at his house where, according to Nunez and witnesses, an individual went after Nunez with a knife. After another guest separated them and knocked the assailant to the floor, Nunez shot the assailant several times, killing him. Nunez called 911 and then flagged down a passing police car. A subsequent search of the house turned up methamphetamine. At trial, Nunez asserted he was acting in self-defense when he shot the victim. A jury rejected the self-defense claim and convicted Nunez of one count of premeditated first-degree murder and one count of possessing less than one gram of methamphetamine with the intent to distribute it. Sedgwick County District Court sentenced him to life in prison without the possibility of parole for 50 years for the murder and a concurrent term of 18 months for the drug charge. Justice Eric Rosen, writing for a unanimous Kansas Supreme Court, reached two dispositive conclusions. First, the State satisfied statutory requirements for establishing probable cause Nunez did not act in self-defense. As a result, Nunez did not enjoy immunity from prosecution. Second, the district court erred in refusing to give an imperfect self-defense instruction. Nunez requested an involuntary manslaughter instruction under K.S.A. 21-5405(a)(4), which makes it a crime to take a life in the lawful exercise of self-defense when the self-defense is carried out with excessive force. Analyzing the evidence presented at trial, the Supreme Court concluded a jury could have found Nunez had the right to take aggressive measures to protect himself and his home but that he used excessive force when he shot his victim, who had already fallen to the floor. The Supreme Court therefore reversed the murder conviction and remanded the case to Sedgwick County for further proceedings.

Appeal No. 121,789: State of Kansas v. Sidney W. Clark Archived oral argument video The Kansas Supreme Court vacated Clark's sentence and remanded to Reno County District Court for resentencing. On a prior appeal, the Court of Appeals had applied a 2018 Kansas Supreme Court decision to determine Clark's original 2005 sentence was illegal. On remand from the Court of Appeals, Reno County District Court resentenced Clark according to the 2018 decision. The State appealed, arguing several Kansas Supreme Court decisions issued shortly before Clark's resentencing indicated the 2018 decision did not apply to his sentence. The Kansas Supreme Court held the legality of Clark's sentence under Kansas' illegal sentence statute was controlled by the law in effect at the time his sentence was originally pronounced in 2005. The Supreme Court thus held Clark's most recent sentence was illegal because he was not entitled to the benefit of the 2018 decision. Finally, the Supreme Court upheld a prior decision finding the illegal sentence statute vests appellate courts with jurisdiction to hear the State's appeal of an illegal sentence.

Appeal No. 122,348: State of Kansas v. Christopher C. Harris Archived oral argument video The Kansas Supreme Court affirmed Harris' convictions in Shawnee County District Court for attempted capital murder, aggravated robbery, aggravated assault, and criminal possession of a firearm following a convenience store robbery and manhunt during which he shot a Topeka police detective. In a unanimous opinion written by Justice Dan Biles, the Supreme Court rejected Harris' various claims, including his constitutional argument that the presence of 15 to 20 police officers in the courtroom deprived him of a fair trial. The Supreme Court reasoned he failed to offer any evidence to show the officers' presence had any prejudicial impact under caselaw.

Appeal No. 123,423: In the Matter of Brent E. Lindberg, Respondent Archived oral argument video The Kansas Supreme Court indefinitely suspended Lindberg from the practice of law for violations of Kansas Rules of Professional Conduct 8.4(b) (professional misconduct) and Kansas Supreme Court Rules 211(b) (failing to file an answer to the formal complaint) and 212(e)(5) (failing to appear). This suspension is effective May 14, 2021.

Chief Justice Marla Luckert issued the following statement today on learning the Kansas Legislature adopted 2021 Senate Bill 159, which provides the judicial branch these budget enhancements:

• Supplemental funding to replace docket fee fund revenue lost when the pandemic affected case filings. Funding for judicial branch operations depended on this previously budgeted revenue. ($7.4 million)
• Funding to bring all judicial branch employee pay to market rate over the next two years, with no employee receiving more than a 12% percent raise in the first year, fiscal year 2022. ($10.8 million)
• Funding to increase judicial salaries by 5% for each of the next two fiscal years. ($3.8 million)
• Funding to hire 70 additional court services officers in courts across Kansas. ($4.3 million)

“Today the Kansas Legislature averted a funding crisis for the judicial branch, and our nearly 1,900 court employees and judges gave a collective sigh of relief. We thank the Kansas Legislature, legislative leadership, and budget conference committee members for their support in this action.

I especially commend legislative leadership for beginning a new chapter in state government relations. You could see our courts faced an imminent funding crisis and you tailored a solution targeting that crisis to ensure we are able to continue to serve communities statewide. Through your leadership, you demonstrated your commitment to the people of Kansas and a fellow branch of government. I look forward to continuing to build on this goodwill.

It’s not an overstatement to say the funding approved today will transform our state court system, as it addresses longstanding funding concerns in addition to new ones related to the COVID-19 pandemic.

 

Not only were we concerned about the health and safety of court users, judges, and employees, the pandemic slowed case filings. Filings dropped as law enforcement wrote fewer traffic tickets and attorneys and their clients delayed filing their lawsuits. This affected fees that partially fund court operations.

We took immediate action to reduce costs by enacting a general statewide hiring freeze, and we now have a high vacancy rate. Today’s funding allows us to lift that hiring freeze.

The funding places us in a better position to compete for the talent needed to sustain court operations by addressing employee pay, which had fallen below market by as much as 18.9%.

We will be able to address judicial pay, which has stagnated. As a result of the growing gap between what the judicial branch pays and what the market provides, the number of applications from well-experienced attorneys has dwindled.

And we will be able to fill 70 additional court services officer positions that a 2019 study revealed are needed if we are to perform all statutorily required duties.

I also want to thank Governor Laura Kelly for including judicial branch funding in the governor’s budget recommendation. Her budget and budget amendments included the enhancements approved today.”

Appeal Nos. 120,620 and 120,622: State of Kansas v. Stephen M. Bodine

Archived oral argument videoOn direct appeal, the Kansas Supreme Court affirmed Bodine’s convictions for first-degree felony murder, aggravated kidnapping, abuse of a child, aggravated endangering a child, aggravated assault, and criminal damage to property. In a unanimous opinion written by Justice Melissa Standridge, the court held Bodine lacked standing to challenge the constitutionality of the kidnapping statute. The Supreme Court also approved Sedgwick County District Court’s jury instructions on aggravated kidnapping and aiding and abetting and found the aiding and abetting statute is not unconstitutional. Further, the Supreme Court determined Bodine’s convictions for felony murder and aggravated child endangerment are not logically impossible and a single instance of prosecutorial error during the State’s closing argument was harmless. Finally, the Supreme Court held K.S.A. 2020 Supp. 22-2302(c), the statute allowing public access to affidavits or sworn testimony filed in support of a warrant or summons, does not violate a defendant’s constitutional right to an impartial jury.

Appeal No. 121,516: State of Kansas v. Jonathan D. Blevins

Archived oral argument video
The Kansas Supreme Court affirmed the decision of Jefferson County District Court after Blevins appealed his conviction for first-degree premeditated murder. The Supreme Court determined while the prosecutor committed several errors during the closing arguments of Blevins' jury trial, those errors were both individually and cumulatively harmless. The Supreme Court also concluded: the district court did not err in telling the venire, in response to a question by a prospective juror, the case did not involve capital punishment; the district court did not err in issuing a jury instruction on aiding and abetting; the prosecutor did not err at Blevins' sentencing hearing; and the district court did not err in refusing to depart from the presumptive hard-50 sentence.

Case No. 123,203: In the Matter of Mark G. Ayesh, Respondent

Archived oral argument video
 The Kansas Supreme Court suspended Ayesh, a Wichita lawyer, from the practice of law for three years with the possibility of probation after six months. Ayesh admitted to multiple violations of the Kansas Rules of Professional Conduct while representing clients in a lengthy dispute surrounding a Wichita condominium development and while representing clients in a tax matter involving the transfer of real estate. Ayesh was admitted to practice law in Kansas in 1979.

Next week, the Kansas Legislature will be considering the Kansas Judicial Branch's budget. The judiciary's specific requests are aimed at replacing lost revenues, funding additional positions, and proving long overdue raises to employees and judges.

The TBA Board of Directors encourages our members to advocate for adequate funding of our judiciary. One important way you can do this is by contacting your own legislators and other legislative leaders. You can find who represents you at ksleglookup.org and you can also find contact information at the following link: http://www.kslegislature.org/li/b2021_22/members/.

Second, share the following op-eds that appear in today’s KC Star and Wichita Eagle on social media—particularly Twitter—with the hashtags #kscourts and #ksleg. KC Star: https://www.kansascity.com/opinion/readers-opinion/guest-commentary/article251037774.html. Wichita Eagle: https://www.kansas.com/opinion/guest-commentary/article251017214.html.

TBA President, Sarah Morse

Appeal No. 117,439: Alysia R. Tillman and Storm Fleetwood v. Katherine A. Goodpasture, D.O. Archived oral argument video   A divided Kansas Supreme Court upheld the constitutionality of a state law abolishing a medical malpractice claim commonly known as a "wrongful birth" action. The decision affirmed Riley County District Court's dismissal of a lawsuit brought by parents who alleged their prenatal doctor negligently failed to inform them about serious fetal abnormalities observable from an ultrasound. The child was born with severe, uncorrectable neurological, cognitive, and physical impairments. The plaintiffs’ lawsuit claimed they would have terminated the pregnancy if the ultrasound results were accurately reported and the doctor’s negligence deprived the mother of her right to make an informed decision about her options. In 2013, the Kansas Legislature enacted a statute barring these lawsuits, which were recognized as viable claims in a 1990 Kansas Supreme Court decision. The parents argued the 2013 law violated their rights to a jury trial and to a remedy under the Kansas Constitution. A Riley County District Court judge ruled the statute was constitutional and dismissed the case. In the majority opinion written by Justice Dan Biles, the Supreme Court agreed the constitutional right to a jury trial and to a remedy did not prevent the Legislature from eliminating the previously available right to sue in this instance. These constitutional guarantees typically limit the Legislature's authority to tamper with civil causes of action recognized when the state constitution was adopted, as well as some of their close modern descendants. But the Supreme Court held these claims did not fall into that category because they had unique factual requirements for the injury to be actionable and required special rules for calculating damages. "The wrongful birth cause of action is not just a different application of the traditional medical malpractice tort," the majority concluded, "it is a new species of malpractice action first recognized in 1990." Three justices wrote separately. Justice Caleb Stegall wrote a concurring opinion arguing the 1990 decision recognizing wrongful birth as a viable cause of action should be overruled, avoiding the constitutional questions. Chief Justice Marla Luckert dissented, arguing medical malpractice actions existed when the state constitution was adopted, so the 2013 statute violated plaintiffs' right to a jury trial. Justice Eric Rosen joined the chief justice's dissent. He also wrote a separate dissent arguing the existence of an injury should be sufficient for the constitutional right to remedy to protect a cause of action from being abolished by statute, without needing to decide whether the injury was actionable when Kansas adopted its constitution.

Appeal 118,734: Ayse Carmen v. Bryant Harris

Summary calendar; no oral argument 

The Kansas Supreme Court ruled any child support obligation for the mother's prenatal care and childbirth expenses must be included in the initial child support award entered when paternity is determined. Johnson County District Court denied a mother’s request more than a year after the paternity decision to add reimbursement for prenatal care and childbirth expenses to the father’s child support obligation. In a unanimous decision written by Justice Dan Biles, the Supreme Court upheld the district court, noting its power to modify the previously established support obligation was limited by statute.

Appeal No. 120,209: State of Kansas v. Sergio Angel Arrizabalaga

Archived oral argument video
 The Kansas Supreme Court reversed the judgments of the Court of Appeals and Saline County District Court and remanded this case for further proceedings after the State brought an interlocutory appeal from an order suppressing evidence gathered from a vehicle search. The district court granted the suppression motion after finding the duration of the continued detention of the driver was excessive and unlawful. The Court of Appeals affirmed this decision, with one judge dissenting. Upon review, the Supreme Court found the trooper conducting the stop acted diligently under the circumstances and the delay was not an unlawful extension of the driver’s detention.

Appeal No. 121,951: State of Kansas v. Ronald Johnson Summary calendar; no oral argument Appeal No. 122,281: State of Kansas v. Benjamin A. Appleby Summary calendar; no oral argument Appeal No. 122,293: State of Kansas v. Christopher M. Trotter Summary calendar; no oral argument Johnson, Appleby, and Trotter each challenged the sentence imposed for his first-degree premeditated or capital murder conviction. The Kansas Supreme Court rejected their arguments that K.S.A. 2020 Supp. 21-6628 provides an avenue or independent means to attack a hard-50 sentence and affirmed the lower court decisions denying each relief. Johnson's and Trotter's cases originated in Wyandotte County. Appleby's case originated in Johnson County.