Appeal No. 122,418: State of Kansas v. Justin W. Steinert

Appeal No. 122,418 archived oral argument

Following his convictions for aggravated robbery, contributing to a child's misconduct, distribution of marijuana, and possession of paraphernalia to distribute or manufacture, Steinert appealed his sentence to the Court of Appeals. He also filed a motion to correct an illegal sentence with the Court of Appeals. In support of that motion, Steinert submitted a purported out-of-state journal entry to show his criminal history score was miscalculated. The Court of Appeals denied Steinert's motion, holding that a defendant may file a motion to correct an illegal sentence only in a district court. The panel also determined the document Steinert submitted was not part of the appellate record, so the panel refused to consider it.

In a unanimous decision written by Justice K.J. Wall, the Supreme Court reversed the judgment of the Court of Appeals. The court held that a defendant may file a motion to correct an illegal sentence in an appellate court while on direct appeal. But the Court did not decide whether Steinert could submit the purported journal entry to an appellate court or whether Steinert was serving an illegal sentence. Instead, the Court determined the Sedgwick County District Court was better positioned to resolve the remaining issues, in part, because there was a factual dispute about whether the document Steinert submitted was, in fact, a journal entry. Thus, it remanded the case to the district court, which has concurrent jurisdiction over illegal-sentence motions under a recent statutory amendment.

Appeal No. 125,600: In the Matter of the Wrongful Conviction of Eric L. Bell

Summary calendar; no oral argument

The Supreme Court unanimously affirmed the Sedgwick County District Court dismissal of Bell's wrongful conviction action for failure to state a claim. The Court concluded Bell filed his action outside the statute of limitations period prescribed in K.S.A. 60-5004(d) and that neither the tolling provision of K.S.A. 60-515(a) nor the doctrine of equitable tolling operated to render his action timely.

Appeal No. 123,382: State of Kansas v. Allen Lee Busch

Appeal No. 123,382 archived oral argument

The Supreme Court unanimously affirms in part and reverses in part the Court of Appeals decision and affirms in part and vacates in part the Seward County District Court decision sentencing Busch for possession of methamphetamine, oxycodone, and drug paraphernalia. Busch claimed on appeal his sentences were illegal because the State failed to prove his prior New Jersey convictions for burglary and criminal trespass were person felonies. The Court noted the elements of the New Jersey burglary statute did not require proof of residential involvement, as mandated by K.S.A. 2022 Supp. 21-6811(e)(3)(B)(iii), and thus held those convictions could not be classified as person felonies as a matter of law. The Court also affirmed the classification of Busch's prior New Jersey criminal trespass conviction as a person felony, however, because one version of that statute's elements required proof of residential involvement and the State carried its burden of proof by presenting the presentence investigation report, as provided by K.S.A. 21-6814(b). The Court then remanded Busch's case for resentencing.

Appeal No. 121,956: State of Kansas v. Brady Allen Newman-Caddell

Appeal No. 121,956 archived oral argument

Newman-Caddell pleaded guilty to one count of aggravated kidnapping, two counts of rape, and one count of aggravated sodomy. The State requested an upward durational departure sentence arguing two factors supported a higher sentence: first, the aggravated kidnapping was a crime of extreme sexual violence, and Newman-Caddell was a predatory sex offender; and second, substantial and compelling facts showed Newman-Caddell presented a risk of future dangerousness to public safety. Newman-Caddell waived his right to a jury trial and stipulated sufficient facts existed to prove both departure factors beyond a reasonable doubt. The Supreme Court affirmed the Johnson County District Court's upward durational departure on the aggravated kidnapping count. The Court concluded the district court did not err in applying the extreme sexual violence departure factor when sentencing a defendant for an aggravated kidnapping involving a nonconsensual act of sexual intercourse or sodomy. The Supreme Court declined to address Newman-Caddell's due process argument because the issue was not preserved, and the first durational departure factor was sufficient on its own to support the departure sentence.

Case No. 125,499: In the Matter of Jeff L. McVey

Case No. 125,499 archived oral argument

A  majority of the Supreme Court suspended McVey from the practice of law for one year violating Kansas Rules of Professional Conduct (KRPC) 1.15 (safekeeping property), 8.4(c) (professional misconduct), and Rule 210 (duty to cooperate), although a minority of the Supreme Court would find no violation of Rule 210 and would impose a lesser penalty. The suspension is effective upon the filing of the Supreme Court's decision.

Appeal No. 121,204: State of Kansas v. Michael Steven Martinez

Summary calendar; no oral argument

In a decision written by Justice K.J. Wall, a majority of the Supreme Court affirmed Martinez's Finney County conviction for possession of methamphetamine with intent to distribute. On appeal, Martinez alleged several trial errors and challenged the constitutionality of K.S.A 21-5705(e)(2), which creates a mandatory (albeit rebuttable) presumption of a defendant's intent to distribute a controlled substance if the defendant possessed at least 3.5 grams of methamphetamine. The majority held Martinez lacked standing to challenge the constitutionality of the statute's mandatory presumption because that presumption was not applied to him at trial. The majority also found jury instruction errors occurred, but held the errors were harmless beyond a reasonable doubt because the trial testimony establishing Martinez's intent to distribute methamphetamine was compelling and undisputed. In a concurring decision, Justice Caleb Stegall agreed with the result but would have found that one of the jury instructions was legally appropriate. Chief Justice Marla Luckert joined the concurrence.

Appeal No. 121,460: State of Kansas v. Matthew Paul Slusser

Appeal No. 121,460 archived oral argument

I n a decision written by Justice K.J. Wall, a majority of the Supreme Court affirmed Slusser's Shawnee County conviction for driving with a suspended license but reversed his convictions for possession of methamphetamine with intent to distribute and aggravated child endangerment.Slusser's convictions arose from an incident in which he was found to be in possession of 11.2 grams of methamphetamine while driving a car with two minor children inside.

On review, the majority declined to reach the merits of Slusser's constitutional challenge to K.S.A 21-5705(e)(2), which creates a mandatory (albeit rebuttable) presumption of a defendant's intent to distribute a controlled substance if the defendant possessed at least 3.5 grams of methamphetamine. The majority held Slusser lacked standing to challenge the constitutionality of the statute because it was not applied to him at trial. The majority also declined to reach the merits of Slusser's challenge to a jury instruction, which permitted jurors to infer an intent to distribute based on the quantity of methamphetamine Slusser possessed, because the defendant asked the district court judge to give that instruction to the jury. But the majority held the prosecutor committed reversible error by mischaracterizing the inference of intent instruction and describing it in a way that shifted the burden of proof on the element of intent to Slusser. The majority thus reversed Slusser's conviction for those offenses that required the State to prove Slusser's intent to distribute methamphetamine and remanded for a new trial. 

In a concurring decision, Justice Caleb Stegall agreed with the result but would have found the challenged jury instruction was legally appropriate. Chief Justice Marla Luckert joined the concurrence. 

Appeal No. 121,865: State of Kansas v. Shameke Caesar Strong

Appeal No. 121,865 archived oral argument

In a decision written by Justice K.J. Wall, a majority of the Supreme Court affirmed Strong's Riley County convictions for possession with intent to distribute within 1,000 feet of a school and possession of drug paraphernalia. On appeal, Strong alleged error regarding a jury instruction on the element of intent to distribute and challenged the constitutionality of K.S.A 21-5705(e)(2), which creates a mandatory (albeit rebuttable) presumption of a defendant's intent to distribute a controlled substance if the defendant possessed at least 3.5 grams of methamphetamine. The majority found the challenged jury instruction was erroneous, but held the error was harmless beyond a reasonable doubt because the evidence establishing Strong's intent to distribute methamphetamine was compelling and uncontroverted. The majority also held Strong lacked standing to challenge the constitutionality of the statute's mandatory presumption because the presumption was not applied to him at trial. Finally, the majority rejected two challenges to the constitutionality of Strong's sentence based on controlling precedent.

In a concurring decision, Justice Caleb Stegall agreed with the result but would have found the challenged jury instruction was legally appropriate. Chief Justice Marla Luckert joined the concurrence.

Appeal No. 123,185: State of Kansas v. Cory Wayne Bentley

Appeal No. 123,185 archived oral argument

In 2018 in Sedgwick County, law enforcement officers stopped Bentley in his vehicle after witnessing him commit traffic infractions. Upon discovering Bentley's license was suspended, officers placed Bentley under arrest and searched the vehicle. They located approximately 27 grams of methamphetamine, two firearms, and empty plastic baggies. A jury convicted Bentley of two counts of possessing firearms by a felon, one count of possessing methamphetamine with intent to distribute between 3.5 and 100 grams, one count of driving with a suspended license, and a traffic infraction. Bentley appealed all his convictions but the traffic infraction.

In a decision written by Justice Eric Rosen, the Supreme Court affirmed all convictions except for the suspended license conviction. It rejected Bentley's claims that some of his statements had been involuntary and that his counsel had been ineffective in pursuing a guilt-based defense without Bentley's explicit consent. It further ruled the Sedgwick County District Court made three harmless errors. It erred when it did not obtain a knowing waiver of Bentley's right to jury trial before accepting his stipulation to one element of the firearms charges. It also erred when it did not instruct the jury on possession with intent to distribute less than a gram and intent to distribute between 1 and 3.5 grams as lesser included offenses of the distribution charge. And it erred when it permitted the jury to presume Bentley intended to distribute methamphetamine if it found he possessed 3.5 grams or more because the applicable law required—rather than permitted—the jury to apply this presumption. All three errors were harmless because they had not affected the results of the trial. Finally, the Court held the evidence was insufficient to support the suspended license charge because it did not show Bentley had actual knowledge his license was suspended.

Justice Stegall concurred in the result. Chief Justice Marla Luckert joined the concurrence.

Appeal No. 123,783: State of Kansas v. Marnez L. Smith

Appeal No. 123,783 archived oral argument

T he Supreme Court affirmed Smith's convictions for felony theft and unlawful acts concerning a computer and remanded the case for a restitution hearing because the amount of the restitution award was not supported by substantial competent evidence. Justice Stegall, writing for a unanimous court, held K.S.A. 21-5839(a)(2) does not contain an alternative means for committing a computer crime. Next, the Court held the Sedgwick County District Court's failure to include a unanimity jury instruction was harmless error. Lastly, the court held the Court of Appeals erred by invoking the invited error doctrine to affirm a restitution award $900 higher than the amount proven by the State's evidence.

Appeal No. 124,625 and 124,898: Christopher Shelton-Jenkins v. State of Kansas

Appeal No. 124,625 archived oral argument

T he Supreme Court affirmed the Johnson County District Court’s denial of Shelton-Jenkins' motion to withdraw plea and denying Shelton-Jenkins' 60-1507 motion. Three years after entering a plea agreement and being sentenced to a hard 25 life sentence, Shelton-Jenkins challenged his sentence arguing: his trial counsel was ineffective because his counsel did not inform him of the applicable lesser included offenses; his guilty plea was not knowingly and voluntarily made; and his guilty plea was improperly accepted without a sufficient finding of factual basis. Justice Stegall, writing for a unanimous court, held Shelton-Jenkins' arguments were not properly preserved and consequently, Shelton-Jenkins failed to meet the constitutional test for ineffective assistance of counsel and failed to demonstrate statutory manifest injustice.

Appeal No. 124,790: State of Kansas v. Andrew Charles Redick

Summary calendar; no oral argument

The Supreme Court affirmed Redick's sentence for first-degree murder and arson as it was pronounced from the bench. However, due to a clerical error indicating Redick's sentence included an illegal term of lifetime postrelease supervision rather than lifetime parole, the Supreme Court remanded the case to the Shawnee County District Court with directions to issue a nunc pro tunc order to correct that clerical mistake in the sentencing journal entry.

A three-judge panel of the Kansas Court of Appeals will hear oral arguments Tuesday, April 11, in the Hudson Auditorium at Johnson County Community College.

Hudson Auditorium is on the second floor of the Nerman Museum of Contemporary Art located on the community college campus.

Judges David Bruns, Henry Green Jr., and Sarah Warner will hear oral arguments in three cases starting at 9 a.m. Afterward, the judges will be available to answer questions from the public about the court and court procedures.

"Court of Appeals judges always welcome invitations to hear cases at high schools, colleges, and universities across our state," said Bruns, the presiding judge for the panel. "Hearing oral arguments at Johnson County Community College for the first time since the pandemic will provide an excellent opportunity for us to visit with students and faculty members about our system of justice."

Oral Arguments

Attorneys for each side will have an opportunity to present arguments to the judges, and the judges will have a chance to ask questions. The court will then take each case under consideration and will issue a written decision at a later date, usually within 60 days.

There are 14 judges on the Court of Appeals, and they sit in panels of three to decide cases.

In fiscal year 2022, the Court of Appeals resolved appeals in 1,060 cases, including 781 in which the court issued a formal written decision.

The three cases to be heard at Johnson County Community College are summarized below. They originate from Leavenworth, Johnson, and Wyandotte counties.

Tuesday, April 11 – 9 a.m

  Appeal No. 125,187:  State of Kansas v. Marquis Brandon Holmes

Leavenworth County (Criminal Appeal): Holmes appeals after a jury convicted him of aggravated battery arising out of the stabbing of another man. On appeal, Holmes contends the State improperly attempted to shift the burden of proof to him. He also contends the district court erred by admitting prejudicial evidence at trial. In addition, Holmes contends he is entitled to a new trial based on cumulative error.

Appeal No. 125,442: Guy Corazzin v Edward D. Jones & Co., L.P., d/b/a Edward Jones, et al.

Johnson County (Civil Appeal): Corazzin appeals after the district court granted summary judgment to Edward D. Jones & Co. He alleges he suffered injury when a chair he was sitting on broke. On appeal, Corazzin contends Edward D. Jones & Co. knew or should have known the chair was dangerous based on the assembly instructions.

Appeal No. 125,651: Jenny E. DeCavele v. Winbury Operating, LLC, Bear Partners, LLC, and Four B Corp., d/b/a Balls Sun Fresh Market.

Wyandotte County (Civil Appeal): DeCavele appeals after the district court granted summary judgment to the owners of Sun Fresh Market. She alleges she fell and suffered injury as a result of a hole in the store's sidewalk. On appeal, DeCavele contends the district court erred in finding the "slight-defect" rule barred her claim.  

Appeal No. 123,807:  State of Kansas v. Tyler D. Deck

Appeal No. 123,807 archived oral argument

The Supreme Court affirmed Deck's sentence. In a per curiam decision, the Court rejected Deck's claim that the Sedgwick County District Court did not have subject matter jurisdiction to sentence him on his attempted unintentional second-degree murder conviction because the crime he pleaded guilty to was logically impossible to commit. The Court reasoned that a motion to correct an illegal sentence, his chosen procedural vehicle, that alleged a defect in the charging document fell into the collateral attack category as inappropriate for courts to reverse a conviction that had become a final judgment, and therefore declined to address the claim's merit. 

Justice Dan Biles concurred, noting he would address the issue's merits because the statute governing a motion to correct an illegal sentence defines an illegal sentence as one imposed by a court without jurisdiction, and caselaw, State v. Dunn, 304 Kan. 773, 811, 375 P.3d 332 (2016), held that for a charging document to be statutorily sufficient it must allege facts that would constitute a Kansas crime committed by the defendant. He opined the facts stated in Deck's charging document satisfied Dunn, so the district court had subject matter jurisdiction to impose a sentence on his convicted crime.

Appeal No. 125,505: State v. Turner

Summary calendar; no archived oral argument

In 1992, Turner pled no contest to multiple felonies in three separate cases. He is currently serving an aggregated sentence of 80 years to life in prison. In the years following his convictions, Turner unsuccessfully challenged his sentence in various ways. In his most recent challenge, Turner moved the Wyandotte County District Court for an order nunc pro tunc to correct his sentencing journal entries, claiming they are at odds with the actual sentence he is serving. Following the district court's denial of Turner's motion, the Supreme Court affirmed the district court in a unanimous decision written by Justice Melissa Standridge. The Supreme Court found that the Court of Appeals had previously affirmed the Kansas Department of Corrections' calculation of Turner's 80-years-to-life aggregated sentence and the Kansas Department of Corrections' calculation of Turner's aggregate sentence reflects the sentence imposed by the district court. Noting that nunc pro tunc orders are used to correct arithmetic or clerical errors, the Supreme Court concluded there was no arithmetic or clerical error to correct.

Appeal No. 121,914: State of Kansas v. Joseph P. Lowry

Appeal No. 121,914 archived oral argument

 In a unanimous decision written by Chief Justice Marla Luckert, the Supreme Court affirmed Lowry's convictions for first-degree felony murder for his role in the murders of three people in a Topeka home. The Court rejected Lowry's argument that the trial court should have instructed the jury on the option to convict of voluntary manslaughter instead of first-degree murder because the facts of the case did not support his contention that there was a sudden and unforeseen quarrel that precipitated the killing. The Court rejected Lowry's claim that the trial court should not have allowed the jury to see crime scene and autopsy photographs because the photographs served an evidentiary purpose and did not serve solely to inflame the jury. The Court also rejected Lowry's claim that a jury instruction regarding compulsion as a defense to the nonhomicide crimes was not factually appropriate because the evidence did not show a continuous compulsion that would warrant such instruction and also showed Lowry had opportunities to escape the situation. Finally, the Court found no cumulative error because there were no errors to accumulate.

Case No. 125,500: In the Matter of Mitchell J. Spencer

Case No. 125,500 archived oral argument

The Supreme Court ordered published censure for Spencer's violations of KRPC 8.4(c) and 8.4(g). Spencer was licensed to practice law in Kansas in September 2017. Two years later, Spencer violated K.S.A. 8-1605, a class C misdemeanor. It is a traffic law concerning the duty of a driver upon damaging unattended vehicle or other property. At the time, Spencer was a Sumner County Attorney's Office employee. The city prosecutor dismissed the citation and referred the case to the Kansas Attorney General's Office. Before the AG's Office filed the case, Spencer paid for the vehicular damages his violation of K.S.A. 8-1605 caused. He also entered into a diversion agreement and completed it. The case was dismissed with prejudice. Counsel for Spencer and the Office of the Disciplinary Administrator jointly recommended more than published censure because of Spencer's status as a prosecutor at the time of misconduct. But the court held that prosecutors are only subject to a higher standard while acting in the scope of their official prosecutorial duties. As Spencer's misconduct did not occur within the scope of his official duties, the rules of professional conduct imposed no heightened duty of ethical conduct on him. Clear and convincing evidence established that Spencer's conduct adversely, but not seriously, reflected on his fitness to practice law.

Appeal No. 123,637: State of Kansas v. Dustin William Eugene Bilbrey

Appeal No. 123,637 archived oral argument

Before sentencing, Bilbrey moved to withdraw his no contest pleas to multiple felonies because his defense counsel was incompetent by refusing to provide Bilbrey with all available video discovery and the State coerced Bilbrey into entering a plea agreement by threatening to prosecute his brother on prior drug charges. The Saline County District Court denied Bilbrey's motion, and a Court of Appeals panel affirmed. On review, the  Supreme Court affirmed the panel's decision finding the district court did not abuse its discretion in denying Bilbrey's motion to withdraw his pleas. In a unanimous decision written by Justice Melissa Standridge, the Court held the district court applied the correct legal standard in reviewing Bilbrey's claim of attorney incompetence and substantial competent evidence supports the district court's factual determination underlying its decision that Bilbrey's plea was not coerced.