Sunday, January 17, 2016

February-March 2016 KSC docket

Here are the criminal cases on the KSC docket for February 29-March 3, 2016. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live at the appellate court website (here) and archived (here) if you would like to watch any of these arguments.

February 29--Monday--a.m.

State v. Keith Ritz, No. 112,069 (Sedgwick)
Direct appeal; felony murder
Heather R. Cessna
  • Failure to sever charges
  • Failure to give lesser-included offense instructions
State v. Javier Rizo, No. 112,824 (Sedgwick)
Direct appeal; felony murder
Sarah Ellen Johnson
  • Improper jury trial waiver
  • Failure to grant downward durational departure
State v. Amoneo Lee, No. 113,562 (Sedgwick)
State appeal
Richard Ney
  • Whether district court properly granted motion to correct illegal sentence under Alleyne
State v. Jerry Thach, No. 112,231 (Sedgwick)
Direct appeal; felony murder
Michael P. Whalen
  • Insufficient evidence of underlying felony

March 1--Tuesday--a.m.

State v. Jordan Mullen, No. 110,468 (Johnson)
Direct appeal (petition for review); possession with intent
Joanna Labastida
  • Failure to grant motion to suppress
  • Deficient search warrant affidavit
  • Failure to properly advise of right to jury trial
State v. Ralph Corey, No. 110,149 (Franklin)
Direct appeal (petition for review); aggravated kidnapping
Lydia Krebs (brief); Peter Maharry (petition for review & argue)
  • Jury misconduct (juror comment during deliberations)
  • Denial of right to be present during readback
  • Improper jury instruction
  • Improper prosecutorial argument

March 3--Thursday--a.m.

State v. William Shank, No. 112,982 (Thomas)
Sentencing appeal
Peter Maharry
  • Improper consecutive sentences
  • Unworkable restitution order
State v. Christian McCormick, No. 109,985 (Sumner)
Direct appeal (petition for review); rape
Christina M. Kerls
  • Improper admission of evidence of another bad act
  • Improper sentence to more than minimum
  • Failure to grant downward departure
State v. Elton Sherman, No. 113,105 (Crawford)
Direct appeal; felony murder
Meryl B. Carver-Allmond
  • Improper prosecutorial argument (defining reasonable doubt)
  • Failure to grant mistrial
  • Speedy trial (due process) violation

Saturday, December 12, 2015

January 2016 KSC docket

Here are the criminal cases on the KSC docket for January 25-29, 2016.  These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live at the appellate court website (here) and archived (here) if you would like to watch any of these arguments.

January 25--Monday--a.m.

State v. Ebony Nguyen, No. 112,316 (Sedgwick)
Sentencing appeal
Joanna Labastida
  • Failure to grant downward durational departure
State v. Shelbert Smith, No. 110,061 (Sedgwick)
Sentencing appeal
Michelle A. Davis
  • Out-of-time notice of appeal (Ortiz)
State v. Kyle Beltz, No. 111,785 (Sedgwick)
Direct appeal; felony murder
Ryan J. Eddinger
  • Improper admission of prior drug sales and marijuana grow
  • Insufficient evidence of proximate cause of death
  • Failure to give self-defense instruction
  • Failure to give unanimity instruction on distribution

January 26--Tuesday--a.m.

State v. Sarah Sessin, No. 110,054 (Geary)
Direct appeal (petition for review); possession
Randall L. Hodgkinson
[Petitions for review dismissed by agreement; January 26, 2016]
  • Fourth Amendment violation
  • Improper aiding and abetting instruction
  • Insufficient evidence

January 27--Wednesday--a.m.

State v. Mitchell Northern, No. 112,955 (Wyandotte)
Sentencing appeal
Samuel Schirer
  • Notice of appeal from sentence was timely because sentence not complete
  • If notice of appeal untimely, Ortiz exception applied
State v. Dana Chandler, No. 108,625 (Shawnee)
Direct appeal; first-degree murder
Nancy Ogle
  • Improper imposition of hard-50 sentences
  • Improper inference stacking
  • Improper admission of prior bad act evidence
  • Improper prosecutorial argument
State v. Jeff Dickey, No. 110,325 (Saline)
Probation violation appeal (petition for review)
Samuel Schirer
  • Improper admission of prior sentences after revocation
  • Improper scoring of prior burglary conviction in criminal history

January 28--Thursday--a.m.

State v. Breonna Wilkins, No. 109,313 (Shawnee)
Direct appeal (petition for review); aggravated intimidation of a witness
Randall L. Hodgkinson
  • Insufficient evidence
  • Statute is unconstitutionally vague

January 29--Friday-a.m.

State v. Michael West, No. 111,124 (Riley)
Sentencing appeal (petition for review)
Christina M. Kerls
  • Improper restitution order when plan was unworkable

Sunday, November 08, 2015

Insufficient evidence of theft by deception

Randall Hodgkinson won in Statev. Laborde, No. 107,872 (Kan. Nov. 6, 2015), reversing a Clay County conviction for theft by deception for insufficient evidence. The KSC held that “[t]he State did not produce evidence proving one of the necessary elements of theft by deception—that Laborde obtained control over Price's property by means of a false statement or representation that deceived Price and on which he relied.

The KSC explained the poof needed to convict of theft:
In relevant part, K.S.A. 21–3701 defines theft:
      “(a) Theft is any of the following acts done with intent to permanently deprive      the  owner permanently of the possession, use or benefit of the owner's property:
‘(1) Obtaining or exerting unauthorized control over property;
‘(2) obtaining by deception control over property;’ ”
Theft by deception sets out different elements that the State must prove than theft by unauthorized control. Theft by deception demands a specific kind of proof from the State. The statutory language demonstrates clearly that the legislature intended to require the State to prove that the intended victim “was actually deceived and actually relied upon the false representation in order for the defendant to be found guilty of theft by deception.” State v. Finch, 223 Kan. 398, 402, 573 P.2d 1048 (1978). The statutory phrase “by deception” indicates an agency or instrumentality as a causative factor. The State must prove that the defendant “obtained control over another's property by means of a false statement or representation.” 223 Kan. at 404, 573 P.2d 1048.
The facts presented at trial did not prove that Ms. Laborde “obtained control over another's property by means of a false statement or representation.” Rather, the evidence, construed in favor of the State, only showed that Ms. Laborde “exert[ed] unauthorized control over property” (by allegedly using deception to prevent the alleged victim from getting his property back from her possession). This was not sufficient to convict of theft by deception.
In reversing the conviction, the KSC described the procedural history of the case as follows:
In this peculiar case, the State brought charges against the defendant asserting elements under one statutory theory of theft [theft by deception], but the jury convicted the defendant under instructions setting out a different theory of theft [theft by unauthorized control]. The Court of Appeals found that the conviction was the result of error invited by both parties and affirmed on that basis. We conclude, however, that the parties never raised on appeal the discrepancy between the charge and the instruction and the case must be analyzed on the terms that the parties argued it, as a matter solely of sufficiency of the evidence. Considered from that perspective, we disagree with the conclusion that the Court of Appeals reached and reverse. [(brackets added by blogger)].
Thus, the KSC held that the sufficiency of the evidence claim was measured by the crime charged in the complaint or information and not necessary the language in the instruction that went to the jury.

Saturday, October 31, 2015

December 2015 KSC docket

Here are the criminal cases on the KSC docket for December 14-17, 2015.  These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live at the appellate court website (here) and archived (here) if you would like to watch any of these arguments.
 
December 14--Monday--a.m.

State v. Gary Kleypas, No. 101,724 (Crawford)
Direct appeal; capital murder and death sentence
Sarah Ellen Johnson, Meryl B. Carver-Allmond

December 15--Tuesday--a.m.

State v. Jeffrey Pribble, No. 108,915 (Sedgwick)
Direct appeal (petition for review); possession with intent
Lydia Krebs (brief); Peter Maharry (argue)
  • Two counts of no tax stamp are multiplicitous
  • Improper prosecutorial argument
State v. Anson Bernhardt, No. 111,639 (Sedgwick)
Direct appeal; first-degree murder
Michelle A. Davis
  • Improper instruction on premeditation
  • Improper ordering of lesser-included offense instructions
  • Failure to give voluntary manslaughter instruction
  • Retroactive application of new hard-50 law violates Ex Post Facto Clause
State v. Zachary Smith, No. 112,250 (Sumner)
Motion to withdraw plea appeal
Charles O'Hara
  • Failure to allow withdrawal of plea
  • Late notice of appeal (Ortiz)

December 16--Wednesday--a.m.

State v. George Lamae, No. 110,940 (Wyandotte)
Motion to correct illegal sentence appeal
Gerald E. Wells
  • Failure to grant motion to correct illegal sentence where lack of subject-matter jurisdiction

December 17--Thursday--a.m.

City of Dodge City v. Orie Webb, No. 109,634 (Ford)
Direct appeal (petition for review); DUI
Michael S. Holland, II
  • Improper search
State v. Matthew Fisher, No. 109,706 (Lyon)
Direct appeal (petition for review); attempted second-degree murder
Samuel Schirer
  • Doyle violation
  • Improper prosecutorial argument
  • Failure to give lesser-included offense instruction
  • Insufficient evidence of criminal damage to property

Sunday, September 13, 2015

Unpublished opinions available online!

Here is a news release from the Clerk of the Appellate Court announcing that, at least for future cases, the full text of unpublished appellate decisions will be available online.  This is a welcome change and will allow attorneys and other persons who may not have access to online opinions through a service like Westlaw to get access to unpublished opinions. Plus Kansas Defenders will be able to link to unpublished decisions!

We have seen our appellate courts more and more willing to cite unpublished decisions as persuasive, and this option should facilitate that even more. Now here's hoping that the appellate rules will be amended to dispense with the requirement of attaching unpublished opinions when cited in pleadings (at least if the unpublished decision is available on line).

Saturday, September 12, 2015

October 2015 KSC docket

Here are the criminal cases on the KSC docket for October 26-29, 2015.  These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live at the appellate court website (here) and archived (here) if you would like to watch any of these arguments.

October 26--Monday--a.m.

State v. Milo Brown, No. 111,345 (Sedgwick)
Direct appeal; felony murder
Lydia Krebs (brief); Peter Maharry (argue)
  • Insufficient evidence of aggravated robbery
  • Insufficient evidence of underlying offense for felony murder
  • Life sentence violates "double rule"
State v. Kenneth Tafoya, No. 107,684 (Sedgwick)
Direct appeal (petition for review); DUI
Heather Cessna
  • Improper use of prior convictions for enhancement
State v. Steven Louis, No. 110,853 (Sedgwick)
Direct appeal; felony murder
Lydia Krebs (brief); Peter Maharry (argue)
  • Failure to give lesser-included offense instructions
  • Failure to instruct that felony murder does not apply to co-felon
  • Improper prosecutorial argument
  • Life sentence violates "double rule"
State v. Felipe Hernandez, No. 108,684 (Sedgwick)
K.S.A. 21-2512 appeal
Janine Cox
  • Improper summary denial of DNA test
State v. Kevin Gray, No. 109,912 (Sedgwick)
Motion to correct illegal sentence appeal
Carl F.A. Maughan
  • Improper summary denial of motion to correct illegal sentence

October 27--Tuesday--a.m.

State v. Gregory Keenan, No. 108,550 (Johnson)
Direct appeal (petition for review); DUI
Courtney T. Henderson
  • Failure to grant motion to suppress evidence

October 28--Wednesday--a.m.

State v. Christopher Davisson, No. 109,778 (Neosho)
Motion to withdraw plea appeal
Michelle A. Davis
  • Whether lack of knowledge constitutes excusable neglect for untimely motion
State v. Alesia Warrior, No. 111,524 (Wyandotte)
Motion to correct illegal sentence appeal
Gerald E. Wells
  • Retroactive application of Alleyne
State v. Douglas Page, No. 106,368 (Bourbon)
Direct appeal; aggravated indecent liberties with a child
Janine Cox
[Affirmed; Biles; December 31, 2015]
  • Improper admission of evidence of prior bad acts
  • Insufficient evidence of aggravated indecent liberties with a child
  • Improper admission of SANE/SART nurse prelim testimony
  • Improper admission of pornographic photographs
State v. Charles Jones, No. 111,540 (Wyandotte)
Motion to correct illegal sentence appeal
Gerald E. Wells
[Affirmed; Rosen; December 18, 2015]
  • Failure to conduct competency hearing resulted in illegal conviction and sentence

Saturday, August 29, 2015

October 2015 Special KSC docket (Garden City)

Here are the criminal cases on the KSC docket for October 13, 2015, held in Garden City, Kansas. This is a special evening setting of the KSC at Garden City High School.  For the travelling docket, the KSC has published this information page, including briefs in each of the cases.
 
These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live over the internet at the appellate court website (here) and archived (here) if you would like to listen in to any of these arguments.
 
October 13--Tuesday--p.m.
 
State v. Dontae Patterson, No. 109,995 (Sedgwick)
State appeal (petition for review)
Richard Ney
  • Whether district court properly suppressed evidence under Fourth Amendment
State v. Charles Logsdon, No. 110,415 (Reno)
Direct appeal; first-degree murder
Shannon S. Crane
  • Failure to grant mistrial after Sixth Amendment violation
  • Improper hard-50 sentence
  • Insufficient evidence
  • Improper instructions on felony murder and aiding and abetting