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. 112,322:State of Kansas v. Guadalupe Ochoa-Lara
Johnson County: (Petition for Review) Officers discovered Ochoa-Lara used another person's Social Security number to lease an apartment and reported income under that Social Security number from his work at a restaurant. After a bench trial, the district court convicted Ochoa-Lara of two counts of identity theft, imposed a concurrent seven-month prison sentence, and granted probation. The Court of Appeals affirmed the conviction and held the Immigration Reform and Control Act does not preempt state prosecution for identity theft based on the unlawful use of another person’s Social Security number and that Ochoa-Lara failed to raise the issue of multiplicity in district court. The Kansas Supreme Court reversed the Court of Appeals and held Ochoa-Lara’s prosecution for identity theft for using another person’s Social Security number to obtain employment was expressly preempted by the Immigration Reform and Control Act. Three justices filed either a concurring or dissenting opinion. Ochoa-Lara was granted a petition for certiorari to the U.S. Supreme Court. On March 3, 2020, the U.S. Supreme Court reversed the Kansas Supreme Court’s decision and held the Immigration Reform and Control Act neither expressly nor impliedly preempted the state prosecution. Issues on review are: 1) the implementation of the U.S. Supreme Court's ruling; and 2) whether the appellate courts can reach the issue of multiplicity.
Appeal No. 114,413: City of Kingman v. Ronald S. Ary
Kingman County: (Petition for Review) Ary appeals his conviction of driving under the influence. Ary claims the arresting officer violated his Fourth Amendment rights by subjecting him to a warrantless blood test pursuant to the Kansas Implied Consent Law. The Court of Appeals agreed but also agreed with the City of Kingman's argument the results of Ary's blood test are admissible in this instance under the good-faith exception to the exclusionary rule. The Court of Appeals affirmed. Issues on review are whether: 1) the good-faith exception to unlawfully obtained evidence applies to the Supreme Court's decisions in Ryce and Nece because the officer was not relying on an unconstitutional statute as authority to conduct the search; and 2) the Legislature abandoned its duty to pass constitutional laws by ignoring the constitutional bases for the Kansas Implied Consent Law.
Appeal No. 115,980: State of Kansas v. Trenton M. Heim
Reno County: (Petition for Review) Heim was arrested for driving under the influence of alcohol in 2015. A deputy later read Heim the statutorily required implied consent advisories from a DC-70 form. Heim refused to take a breath alcohol test but asked to take a blood alcohol test, and a sample was taken as prescribed by statute. With the underlying facts stipulated by the parties, the district court denied Heim's motion to suppress, which alleged a Fourth Amendment violation based on a warrantless search to which he did not voluntarily consent. The district court convicted Heim of DUI. The Court of Appeals affirmed the district court and held the good-faith exception applies to the deputy's warrantless collection of evidence. Issues on review are whether: 1) the good-faith exception to unlawfully obtained evidence applies to the Supreme Court's decisions in Ryce and Nece because the officer was not relying on an unconstitutional statute as authority to conduct the search; 2) the Legislature abandoned its duty to pass constitutional laws by ignoring the constitutional bases for the Kansas Implied Consent Law; and 3) the Legislature criminalized an individual's ability to withdraw consent, rendering K.S.A. 8-1025 facially unconstitutional.
Appeal No. 117,081: State of Kansas v. Amy Stoll
Reno County: (Petition for Review) Stoll was convicted in 2008 for conspiracy to unlawfully manufacture a controlled substance and ordered her to register under the Kansas Offender Registration Act. However, the specific drug offense committed was not added to the Kansas Offender Registration Act until 2011. Stoll complied with the registration for about seven years. Stoll was convicted of failing to register in 2015 and sentenced to 24 months' probation. On appeal, Stoll's arguments involved whether she had bad intent, such as intentionally failing to register, rather than negligently not following the timeframe set by the Legislature. The Court of Appeals affirmed her conviction. Issues on review are whether the Court of Appeals erred: 1) by rejecting or not reaching Stoll's substantial compliance argument; 2) by declining to consider Stoll's strict liability argument for lack of standing; and 3) in finding Stoll's stipulation was invited error that precluded the Court's review.
Appeal No. 118,648: State of Kansas v. Christopher L. Herring
Sedgwick County: (Petition for Review) Herring appealed the district court's denial of his presentencing motion to withdraw his no contest plea to one count of robbery and one count of aggravated assault. Herring contended the district court abused its discretion by using an incorrect legal standard in denying his motion. The Court of Appeals held even though the district court partially misstated the legal standard, the error was harmless because the district court made findings on the record that trial counsel's representation of Herring was effective, competent, and reasonable. The Court of Appeals stated the district court expressly found trial counsel did a good job in representing Herring and affirmed. Issue on review is whether the Court of Appeals erred in applying harmless error to excuse the district court's abuse of discretion in applying the incorrect legal standard when considering Herring's presentencing motion to withdraw his plea.
Appeal No. 119,871: State of Kansas v. Alex Dee Davis
Sedgwick County: (Criminal Appeal) Davis was charged with felony murder, reckless second-degree murder, fleeing or attempting to elude an officer, leaving the scene of an accident, and multiple counts of theft, burglary, and robbery. The charges were related to an October 2016 car accident in which a car driven by Davis struck a second vehicle. The driver of the second vehicle later died. After Davis was apprehended, officers discovered jewelry and other personal property in his car allegedly taken during several burglaries and robberies. Davis was convicted on nearly all the charges but acquitted on the robbery and burglary charges. The district court sentenced Davis to a hard-25 life sentence and consecutive and concurrent sentences on the remaining convictions. Issues on appeal are whether: 1) the State failed to present sufficient evidence that Davis committed the felony offense of fleeing or attempting to elude an officer by trying to elude capture for a felony; 2) the State failed to prove both alternative means of felony murder instructed by the court and whether the felony murder conviction can survive the super-sufficiency analysis required by State v. Timley; 3) the district court erroneously admitted statements elicited from Davis after he invoked his right to remain silent; 4) the district court erroneously admitted irrelevant evidence that was more prejudicial than probative; 5) the district court erroneously excluded evidence the decedent delayed medical treatment, violating Davis' constitutional right to present a complete defense; 6) the State committed reversible prosecutorial error by advising the jury in voir dire that a lack of evidence could not be held against the State; and 7) cumulative error denied Davis a fair trial.
Appeal No. 119,998: State of Kansas v. Jeremy D. Levy Jr.
Sedgwick County: (Criminal Appeal) Levy was convicted of felony murder from a shooting at a mall in Wichita. The incidents were part of an on-going gang war. The district court sentenced Levy to a hard-25 life sentence. Issues on appeal are whether: 1) there was sufficient evidence to support the underlying felony because the State's theory was Levy was shooting at a person, not an occupied vehicle, and the vehicle was unoccupied; 2) the district court erred in allowing evidence of the gang war and Levy's gang affiliation; 3) the district court violated Levy's due process rights by expanding the jury instruction to find Levy guilty if he "or another" killed the victim when the State specifically charged Levy with killing the victim; and 4) cumulative error denied Levy a fair trial.