Archive for May, 2009

Decision: State v. Garcia

May 26, 2009

May 22nd. The Kansas Supreme Court has issued its opinion in the case of State v. Garcia (No. 99,997) a sentencing appeal. In a unanimous decision, written by Justice Lawton Nuss, the Court affirmed Ray Garcia’s felony-murder sentence and the District Court’s finding that the crime was sexually motivated (thus placing him on the Sex Offenders Register).

In 1995 Garcia raped a 73 year old Wichita woman. The crime went unsolved for years. In 2001 the Kansas Legislature extended the Statute of Limitations for rape (which had previously been 5 years). Subsequently a “cold case” investigation identified Garcia as the culprit and he was tried and convicted of rape and felony murder. Garcia appealed and in 2007 the Kansas Supreme Court vacated his conviction for rape as violating the Ex Post Facto clause of the United States Constitution. [Since the Legislature extended the Statute of Limitations after it had expired in Garcia’s case]. The Court remanded the case to District Court for re-sentencing. At re-sentencing the District Court noted in response to questions by the Prosecutor that Garcia remained a Sex Offender since the felony-murder was found to be sexually motivated.

Garcia appealed this, arguing that this was a new finding on remand and that since the felony-murder conviction was untouched by the Kansas Supreme Court’s decision, it could not be reopened for further findings. Garcia sought to have the ‘sexually motivated’ component of that sentence (and thus the Sex Offenders register requirement) removed.

The Court rejected this argument. In examining the transcript of the original sentencing and the journal it found that the trial court had made the finding at the original trial that the felony-murder was sexually motivated. (Which stands to reason, since without the Statute of Limitations issue, Garcia would still have a rape conviction). It also informed him at the time of Sex Offender registration being required as a result of the felony-murder conviction. Therefore, on remand, the District Court was not reopening the felony-murder sentence, and thus it stands as before. Garcia did not object at the time or during his original appeal to this finding and therefore cannot raise a challenge now over the finding that the felony-murder was sexually motivated.

Garcia will be eligible for parole in 2020.

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Decision: Carrothers Construction Company v. City of South Hutchinson

May 26, 2009

May 22nd. The Kansas Supreme Court has issued its opinion in the case of Carrothers Construction Company v. City of South Hutchinson (No. 98,023), a contract dispute concerning liquidated damages. In a unanimous opinion, written by Justice Daniel Biles, the Court held that the construction company was required to lose $140,000 of its fees for delays in the completion of a new sewage plant. In doing so, the Court settled a previously undecided question of Kansas law, ruling that liquidated damages should be reviewed based upon the circumstances at the time of the contract and not taking into account a retrospective assessment of the actual damages incurred to a party.

The background to the case was that the City of South Hutchinson hired Carrothers Construction Company to build a new sewage treatment plant, which incorporated a computer control system. MKEC Engineering Consultants were appointed as Project Engineer and one of their responsibilities was to certify stages of completion, which in turn would trigger liquidated damages at $850 per day of delay if those stages were not met. Both the city and the construction company agreed to the terms of the contract. The treatment plant should have been completed in July of 2003. It wasn’t. In November of that year the City was able to start operating it manually (without the computer system). The project was finally completed in January 2004. Based on this, MKEC advised the City to withhold $140,000, per the contract. Carrothers then sued the City for breach of contract. Carrothers lost in the District Court and the Court of Appeals, which brought the case to the Kansas Supreme Court.

The terms of the contract defined two stages of completion – substantial (when the plant would be operational) and final (when there was nothing left to do). As certified by MKEC, these two stages were met one day apart, the former when the computer control system was finally operational and the second when the manuals to the same were delivered. Carrothers argued that the former was actually met when the City began operating the plant in November 2003. The Court rejected this argument, noting that the contract explicitly included the control system as part of the work and that the Carrothers had agreed to delegate decisions as to completeness to the project engineer.

Carrothers also argued that the liquidated damages should be reviewed for reasonableness in court both prospectively (from the viewpoint of the parties at the time the contract was signed) and retrospectively (after the fact, based on whether the dollar amounts approximated to the actual damages incurred). Carrothers argued that the 10th Circuit Court of Appeals had construed Kansas Law this way in another case, but the Court rejected this and held that the 10th Circuit had in fact found that the issue was not decided. This question was therefore an open question of law and so the Kansas Supreme Court held that in Kansas the analysis in Court of liquidated damages is only based on a prospective assessment. Doing so, the Court stated, was beneficial since it encouraged the use of liquidated damages (instead of tort litigation) and left parties free to agree contracts with one another to handle these issues.

The Court also rejected two arguments from Carrothers, that the $850 per diem damage amount was unreasonably high and that the City waived its right to the liquidated damages by occupying the facility; again holding that it was not the Court’s function to rewrite the contract after the fact.

Decision: State v. Bee

May 25, 2009

May 22nd. The Kansas Supreme Court has issued its opinion in State v. Bee (No. 97,677),  a drug-related probation revocation appeal. In a unanimous opinion, written by Justice Eric Rosen, the Court held that Larry Bee was properly sentenced to his underlying prison sentence when his probation was revoked. Bee had argued that the District Court should have considered sending him to a non-prison alternative such as the Labette Correctional Conservation Camp.

In July 2003, Bee was charged with several felonies relating to possession of methamphetamine and marijuana. As part of a plea agreement all of these but one were dismissed and Bee was sentenced in May 2004 to 13 months imprisonment, suspended due ot probation. A month later, the State filed a motion to revoke Bee’s probation since he had not shown up to meetings with his probation officer and had again been found to be using meth. The Court’s opinion is silent on what happened here, but two years later the State again filed a motion to revoke Bee’s probation on the grounds that he did not show up and continued to use drugs.

The District Court revoked Bee’s probation and sentenced him to gaol. Bee argued that instead of this the court should have considered sending him to the Labette Correctional Camp or another non-prison alternative. His argument was based on a statute which states that for defendants falling into the position on the sentencing grid that Bee did, the District Court shall do this prior to sending a revoked probationer to prison.

However, there are other statutes which also govern the revocation of probation which require that certain classes of drug offenders be sent to prison on revocation of their probation. The Kansas Supreme Court analyzed these and based upon the fact that some were enacted after the Labette statute and that they also contain the word ‘shall’ found that they controlled the outcome in this case. Bee was therefore properly sentenced to prison.

The State did not win every part of its argument. The Labette statute identified two classes of individual who should be considered – those whose offences did not fall under a particular other statute and those whose criminal history meant that they would receive probation. Bee’s crimes were among those which were specifically excluded from the first part of the Labette statute, but his criminal history brought him into the second part. The State had argued that the former meant that the entire matter did not apply. The Court disagreed, finding that because the legislature used the word ‘or’ between these two sections Bee’s disqualification from the former did not prevent the application of the latter. Rather, it was the other statutes which meant that he was properly imprisoned.

May 22nd Unpublished Opinions

May 24, 2009

May 22nd. The Kansas Supreme Court has issued a number of unpublished opinions.

Docket Number / Case Name / Judge / Disposition / County
100,340 — State v. Dean — Per Curiam — Affirmed — Sedgwick.
100,341/100,378/100,380 — State v. Roediger — Per Curiam — Dismissed — Saline.
100,437 — State v. Jacobs — Per Curiam — Affirmed — Sedgwick.
100,440 — State v. Shipshee — Per Curiam — Dismissed — Jackson.
100,455/100,456 — State v. Frye — Per Curiam — Affirmed — Miami.
100,472 — State v. Robinson — Per Curiam — Affirmed in part and dismissed in part — Sedgwick.
100,516 — State v. Puckett — Per Curiam — Dismissed — Brown.
100,619 — State v. Beasley — Per Curiam — Affirmed — Sedgwick.
100,620 — State v. Evans — Per Curiam — Affirmed — Douglas.
100,744 — State v. Castro-Lopez — Per Curiam — Dismissed — Johnson.
100,761 — State v. Counts — Per Curiam — Affirmed in part and dismissed in part — Shawnee.
100,809 — State v. Stout — Per Curiam — Affirmed in part and dismissed in part — Marshall.
100,879 — State v. Wells — Per Curiam — Affirmed — Scott.
100,908 — State v. Dominguez-Gonzalez — Per Curiam — Dismissed — Barton.
100,982 — State v. Belveal — Per Curiam — Affirmed in part and dismissed in part — Reno.

Unpublished opinions are supposed to be those where the case turns on the straightforward application of existing law. Though widespread, the practice is not without controversy – it has been criticized elsewhere for allowing courts to hide ’stinkers’ as well as being unnecessary in the age of the internet where the size of printed materials is no longer a constraint. These cases are not available online. If anyone is aware of any controversy surrounding them, please contact this blog and we will investigate.

Decision: Stroda v. Joice Holdings

May 24, 2009

May 15th. The Kansas Supreme Court has issued its opinion in Stroda v. Joice Holdings (No. 100,733) a property dispute. In a unanimous opinion, written by Justice Nuss, the Court held that an implied easement that existed on the property in the case was not limited to agricultural purposes by its prior use and could be used for residential access. The Court also held that an easement for residential access can generally be used for providing utilities to a residence. Note: This case was argued after Chief Justice McFarland’s retirement and before her successor took up office. Her place was taken by District Judge Daniel Love.

In the 1950s Lawrence and Etta Stroda bought a parcel of Douglas County land which was not connected to a road. At this time they used a residence on the land. They accessed it via an easement across a neighbouring tract. Subsequently, they bought that tract and the easement was extinguished. By the 1980s no-one lived on the land though the old residence remained. The land was divided back into two the parcels by Etta Stroda’s will and both parties used the land agriculturally, an implied easement to the landlocked portion again existing. In 2006 the landlocked portion was owned by Ed Stroda and the other portion by Joice Holdings LLC. Stroda sought to sell his plot for use as a single residence. Joice Holdings sued, arguing that the the easement was limited to agricultural uses, and that even if it could allow residential access it could not be expanded to utilities. The District Court issued summary judgement to Stroda holding that the implied easement did confer residential access. After a bench trial the Court held that under the circumstances (that utilities could be supplied underground within the existing size of the easement) the easement could also be used to supply the house with utilities.

The Kansas Supreme Court affirmed the District Court on both arguments. An implied easement is one which does not exist because of any written agreement between parties but which arises because of the circumstances of the property – e.g. a landlocked parcel will have some form of right of access across a neighboring property. The Court noted that unlike an easement which is expressly agreed between two parties and written down an implied easement is more flexible and generally based upon what would have been assumed to be its  purpose at the time of creation. Joice Holdings argued that this limited it to agricultural use but the Court held that in this case it was clear that residential use was contemplated. The Court noted that the ruins of the old house remained on the landlocked parcel and also looked at precedent from other states which emphasized that implied easements are not as prescriptive of usage.

In the second part of its ruling, the Kansas Supreme Court held that a right of residential access under an implied easement could also apply to utilities. In a ruling which will gladden the hearts of property developers (but which perhaps does not take note of technologies offering more self-sufficient sources heat and light), the Court found that providing utilities passed the necessity test needed to establish an easement.

“In our view, a lack of utilities to a new house in Kansas goes beyond mere inconvenience and begins to approach the unlivable. A house generally is not considered to be a residence without water, electricity, and similar utilities, e.g., the ability to be heated and cooled, lit in the dark, and equipped for communication with the outside world.”

The second part of the test is whether such access would be reasonable. Based on the findings of the District Court that the utilities could be provided with limited impact on Joice Holdings’ property, the Court held that the easement could be used to provide the utilities.

Decision: State v. Ransom

May 17, 2009

May 15th. The Kansas Supreme Court has issued its opinion in State v. Ransom (No. 99,281) a felony-murder appeal. In a unanimous opinion, written by Justice Carol Beier, the Court upheld Kendrall Ransom’s conviction for the felony-murder of Spain Bey. Note: As a result of former Chief Justice Kay McFarland’s retirement, Judge Melissa Standridge of the Court of Appeals was appointed to hear the case.

Kendrall Ransom was an 18 year old gang member (though jurors were not told that) in March of 2006 when he and a group of friends and associates took part in a pair of poorly planned drug house robberies in Wichita. They first attempted to rob one Donta McDonald, who Ransom shot and killed. In this case Ransom is not appealing that crime (which was covered here [the felony-murder conviction of one of his accomplices]) but the conviction arising out of that evening’s second robbery. Having come away from the McDonald killing with no drugs or money Ransom and some others raided a house on North Lorraine. Ransom knocked on the door holding a shotgun and said he was there to buy drugs. The occupants saw the gun and slammed the door and everyone involved ran away at some point – except for one Spain Bey who was found in the house shot to death.

Later that night Ransom and the others were pleased by the evening news which they watched at an associate’s house which showed the police were looking for a different type of vehicle to the one they had been driving. They were less pleased a couple of days later when an anonymous tip led police to that house, several guns and ultimately the various participants in the crimes. Ransom was charged with Felony Murder for the death of Bey. [At trial a forensics expert testified that the weapons recovered were not used to kill Bey – who exactly shot Bey remains a mystery, but is of course not necessarily relevant for a Felony Murder conviction]. A jury convicted him.

This case is Ransom’s direct appeal and as a result he made a series of claims for why his conviction should be reversed. The opinion almost devotes more time to describing the procedural background than to dismissing each of the issues which Ransom raised. None of them appears to have stood much chance of success.

  • The Court held that interruptions in Ransom’s interview schedule and an (unsupported) claim that he had been drinking and taking Ecstasy did not require that he be re-Mirandized. His confession to participating in the crimes was therefore admissible.
  • The Court held that testimony about the way Ransom and the others celebrated the news report about the type of car that was being looked for by police was neither a violation of the Sixth Amendment right to confront, nor inadmissible hearsay.
  • The Court rejected an argument that the jury should have received an instruction which would have required to find some causational link between Ransom’s actions and Bey’s death over and above the death being as a result of the attempted robbery.
  • The Court rejected an argument that Ransom should have received a mistrial because one of the police officers referred to “gang officers” in testimony when the trial judge had barred admission of evidence concerning Ransom’s gang ties.
  • The Court rejected an argument that the State should not have been able to alter the charge after both sides had presented their evidence. [It should be noted that the change in the charge was to include an additional component of the same subsection of the Felony Murder statute, namely to include the flight from the scene as something linked to Bey’s death, and the trial had already covered evidence about the events in the amended charge].
  • The Court rejected an argument that the evidence of Felony Murder was insufficient, since a rational fact-finder could have found Ransom guilty based on the evidence presented.

Therefore, Ransom’s conviction was affirmed.

U.S. Supreme Court not reviewing controversial adoption case

May 11, 2009

It has just come to our attention that the controversial case, In re A.A.T. from December (which produced a rare 4-3 split among the Justices of the Kansas Supreme Court) will not be taken up by the United States Supreme Court. In an order issued on April 20th, the U.S. Supreme Court denied certiorari, without any comment. This was a case in which the Kansas Supreme Court refused to re-open a finalized adoption proceeding in order to give a chance for the unmarried father of the child to attempt to dispute the adoption.

Disclosure: In previously published commentary on this case, this blog has stated that we strongly agree with the majority’s decision.

Decision: State v. Valladarez

May 9, 2009

May 8th. The Kansas Supreme Court has issued its opinion in State v. Valladarez (No 99,724). In a unanimous decision, written by Justice Marla Luckert, the Court held that a District Magistrate Judge can perform a felony arraignment, including informing the defendant of the implications of a guilty plea, provided that Magistrates in that District have been assigned this power by the Chief Judge of the District. In this case, there being no evidence either way about this assignment the case was remanded to the District Court to ascertain if the assignment of this authority had been properly made.

In 2007 Aaron Valladarez was charged in Ford County with sale of methamphetamine and possession of methamphetamine. At a preliminary hearing before a District Magistrate Judge the State offered a deal: plead guilty or nolo contendere to the charges and the sale of meth one would be replaced with a second possession charge (possession being a lesser felony). Valladarez accepted the deal and the Magistrate converted the hearing into an arraignment. Valladarez pled no contest and subsequently at a District Court sentencing hearing was given two concurrent 28 month sentences.

Valladarez appealed citing two conflicting aspects of Kansas Law governing Magistrates and arraignments, as well as longstanding precedents from the 1970s and earlier. The old cases and a general statute block Magistrates from presiding over most felony arraignments. However, another statute gives them the right to do so if the Chief Judge of the Judicial District has authorized them to. Generally, when two statutes conflict the more specific one is controlling, but the Court is to read them in such a way as to harmonize them. In this case, what happened was that in the 1990s the Legislature amended the law to allow Magistrates to handle arraignments for efficiency reasons. Therefore the Court rejected the notion that the Magistrate was not permitted to arraign Valladarez.

As a second argument, Valladarez also argued that even if the Magistrates could preside over an arraignment, they could not have been granted the authority to preside over the process of accepting a guilty (or no contest) plea since this requires a judgement as to whether the plea was acceptable. Valladarez argued that this was the realm of the District Judge. The Court also rejected this argument, noting that while the law did not specify one way or the other, the process of arraignment contained the process of accepting a plea and to allow a delay between the defendant entering a plea and the Court acting upon whether that plea was a valid one would actually harm the defendant’s Due Process rights.

Procedurally this case is somewhat odd. Generally appellate claims may only be raised if the matter they cover was raised in District Court, however if the claim concerns the jurisdiction of the Court that heard the case the claim can be raised at any point. (This is based on the idea that jurisdiction is an absolute – either it exists or it does not and there is nothing a party to a case can do to create or destroy it). For this reason the Kansas Supreme Court heard this case. However, the Statute which the Court relied on to reject Valladarez’ claims required some form of official decision within the Judicial District that would enable Magistrates to handle arraignments. There was no evidence in the case record that this had happened, so the case was remanded back to the District Court to determine whether this had in fact been done. The District Court was instructed that if it had been done then Valladarez’ felony convictions will stand, but that if it had not been done they will not. The opinion also made a point to put Chief Judges on notice to ensure that if this procedure was in use in their District to ensure that their administrative orders properly covered this process.

The Court also heard a claim from Valladarez that since the sentencing Judge had omitted to ask him a question about whether he had any reason to believe that he could not be sentenced, his sentence was invalid. The Court found that this check is required by law, and that the Judge had erred in not asking it. However the Court also found that the error was harmless: Valladarez would have received the same sentence anyway.

Decision: State v. Youngblood

May 9, 2009

May 8th. The Kansas Supreme Court has issued its opinion in State v. Youngblood (No. 96,850). In a unanimous decision, written by Justice Johnson, the Court vacated the conviction of Galen Youngblood for felony possession of marijuana. The case implicates the Sixth Amendment right to counsel and the use of convictions obtained without counsel for subsequent sentencing enhancements.

Galen Youngblood was detained on a driving on a suspended license charge in 2004. He was caught disposing of a marijuana pipe and was therefore charged with possession of marijuana. A first offense is a misdemeanor but a second offense can be charged as a felony. Since Youngblood had a prior misdemeanor conviction from Newton Municipal Court for the same offense, he was charged with a felony.

The Sixth Amendment the Right to Counsel attaches to misdemeanors that result in a prison sentence. This offense was one such misdemeanor, although in Youngblood’s case he had received a suspended sentence with probation. Youngblood filed a motion to dismiss the charges on the grounds that his prior conviction had occurred without counsel. The waiver of counsel document from his trial was blank and although the State could show that he had subsequently signed a waiver (after the fact) there was not evidence that he had knowingly waived his right. The District Court also heard evidence from the original judge who could not independently verify that he had spoken with Youngblood about his waiving his right, but who said that he always spoke to defendants about this.

The District Court ruled against Youngblood and held that since he had not been jailed on prior occasion the Sixth Amendment did not apply. Youngblood was convicted and sentenced (the Court does not specify the length of his sentence). Youngblood appealed. The Court of Appeals upheld his conviction, ruling that although he had been denied his Right to Counsel in the prior conviction (since the onus is upon the State to prove that he had knowingly waived it) it was still valid for its use here.

The heart of the case comes down to the way various Federal Caselaw has been applied in Kansas. The United States Supreme Court held in a case in the 1970s that the test as to whether the Sixth Amendement applied to a misdemeanor was imprisonment. In 1994 the U.S. Supreme Court held that a prior uncounselled misdemeanor conviction could be used to enhance a subsequent sentence if the State could show that the defendant had waived his right to counsel. Therefore in State v. Delacruz (1995) the Kansas Supreme Court held that the same rule applied in Kansas. Subsequently, in Alabama v. Shelton (2002) the U.S. Supreme Court held that even a suspended sentence that does not result in jail time is covered by this Sixth Amendment rule.

The Court of Appeals had held that Delacruz was compatible with Shelton and had therefore held that the prior conviction could be used to enhance the new charge. The Kansas Supreme Court reversed the Court of Appeals, ruling that this case is different to Delacruz in any case because the Delacruz rule allows a validly obtained uncounselled conviction to be used. Since Youngblood had received a suspended sentence, under Shelton, the Sixth Amendment did apply and therefore his original conviction was not constitutionally valid. Therefore it could not be used to enhance his present charge to a felony.

Decision: State v. Horn

May 8, 2009

May 8th. The Kansas Supreme Court has issued its opinion in State v. Horn (No. 100,373). In a unanimous decision, written by Justice Johnson, the court threw out a Jessica’s Law 25 year sentence that had been imposed on Joshua Horn for attempted aggravated criminal sodomy on a child under 14. Horn will be resentenced using the non-drug Kansas Sentencing Guidelines grid.

Joshua Horn attempted to commit aggravated criminal sodomy on a child under 14. Justice Johnson’s opinion does not cover Horn’s crime in any detail, and a web search turns up nothing so we cannot provide any more information about what led to his being charged. Under Jessica’s Law he was sentenced to a life sentence without the possibility of parole for 25 years.

Horn appealed his sentence. He argued that there is a conflict in the statutes describing sentencing. The crime he was convicted of covers attempting to commit any off-grid felony, and prescribes a sentence on the non-drug grid for a level one felony. However, Jessica’s Law prescribes a hard-25 sentence for the crime. The Court sided with Horn.

While the State had argued that Jessica’s Law was the more specific statute and therefore should govern the conflict, the Court held that either statute could be read as the more specific one. It also noted that in the same session of the legislature where Jessica’s Law was passed, that the Court had amended the statute concerning attempted felonies to make its sentencing rule not apply to two terrorism related offenses, but had not done so for Jessica’s Law.

Therefore the Court applied the Rule of Lenity which meant that of the two conflicting sentencing options the one most favourable to the defendant should apply. The Court did not provide any information about Horn’s criminal history, so it is not clear what his sentence will be, but it is possible to determine the lower limit: if Horn has a clean record or only one misdemeanor he could be sentenced to as little as 12 years.

Commentary: Justice Johnson’s opinion is a very brief one, yet significant because it removes a category of crimes from the provisions of Jessica’s Law. We feel confident in predicting that a Bill to make clear that the Jessica’s Law sentence applies to such cases will quickly be passed in next year’s legislative session. The moral of this story for the Legislature: spend more time cross-checking the statutes and be more precise about how laws are to work.