Posts Tagged ‘Rosen opinion’

Decision: Landmark National Bank v. Kesler

September 3, 2009

August 28th. The Kansas Supreme Court has issued its opinion in Landmark National Bank v. Kesler (No. 98,489), a complex foreclosure proceeding. In a unanimous opinion, written by Justice Eric Rosen, the Court held that under the circumstances of this case the second-mortgage holder could not undo the foreclosure that had been performed and settled by the first-mortgage holder, owing to the complex legal relationship between that second-mortgage holder, the property and an intermediary company.

Boyd Kesler took out two mortgages against some property in Ford County. The first was with Landmark National Bank. The second with Millenia Mortgage Company. Millenia generated its documents using Mortgage Electronic Registration Systems (MERS), which carried out the administration of the loan, but received none of the money and was not legally the owner of the loan. MERS operates a system where it stands in for lenders who provide the money and allows the trading of loan notes between different institutions.

At some point, via this process Millenia’s ownership of the note transferred (or may have transferred) to Sovereign Bank. Meanwhile Kesler went through bankruptcy proceedings and the first lienholder – Landmark – foreclosed on the property. The property was sold at auction, for more than the amount owed to Landmark and Kesler and Landmark filed a motion to settle the monies between them.

Subsequent to this, Sovereign and later MERS sought to block the foreclosure on the grounds that they (as second lienholders) had not received notification of the sale. As it transpires, Ford County never received a registration for the mortgage as belonging to anyone but Millenia.

The District Court denied this motion, and various appeals resulted. The Kansas Supreme Court rejected the appeal by MERS and Sovereign, finding that since MERS did not own the note its status in law as relates to the mortgage is tenuous. Therefore none of the criteria for setting aside the foreclosure could be met. In ruling this way the Court rejected the amicus brief filed by various financial organizations which endorsed the MERS system, saying that it must follow the law as written, notwithstanding the amicus brief’s complaint that the recording scheme stems from “seventeenth-century property law that is entirely unsuited to twentieth-century financial transactions”.

The Court also rejected a Due Process argument from MERS, finding that throughout the various proceedings it had had its arguments listened to in court and therefore had certainly received the process it was due in this case.

Decision: Landmark National Bank v. Kesler

August 28th. The Kansas Supreme Court has issued its opinion in Landmark National Bank

v. Kesler (No. 98,489), a complex foreclosure proceeding. In a unanimous opinion,

written by Justice Eric Rosen, the Court held that under the circumstances of this case

the second-mortgage holder could not undo the foreclosure that had been performed and

settled by the first-mortgage holder, owing to the complex legal relationship between

that second-mortgage holder, the property and an intermediary company.

Boyd Kesler took out two mortgages against some property in Ford County. The first was

with Landmark National Bank. The second with Millenia Mortgage Company. Millenia

generated its documents using Mortgage Electronic Registration Systems (MERS), which

carried out the administration of the loan, but received none of the money and was not

legally the owner of the loan. MERS operates a system where it stands in for lenders

who provide the money and allows the trading of loan notes between different

institutions.

At some point, via this process Millenia’s ownership of the note transferred (or may

have transferred) to Sovereign Bank. Meanwhile Kesler went through bankruptcy

proceedings and the first lienholder – Landmark – foreclosed on the property. The

property was sold at auction, for more than the amount owed to Landmark and Kesler and

Landmark filed a motion to settle the monies between them.

Subsequent to this, Sovereign and later MERS sought to block the foreclosure on the

grounds that they (as second lienholders) had not received notification of the sale. As

it transpires, Ford County never received a registration for the mortgage as belonging

to anyone but Millenia.

The District Court denied this motion, and various appeals resulted. The Kansas Supreme

Court rejected the appeal by MERS and Sovereign, finding that since MERS did not own

the note its status in law as relates to the mortgage is tenuous. Therefore none of the

criteria for setting aside the foreclosure could be met. In ruling this way the Court

rejected the amicus brief filed by various financial organizations which endorsed the

MERS system, saying that it must follow the law as written, notwithstanding the amicus

brief’s complaint that the recording scheme stems from “seventeenth-century property

law that is entirely unsuited to twentieth-century financial transactions”.

The Court also rejected a Due Process argument from MERS, finding that throughout the

various proceedings it had had its arguments listened to in court and therefore had

certainly received the process it was due in this case.

http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090828/98489.htm

Decision: State v. Raiburn

August 14, 2009

July 24th. The Kansas Supreme Court has issued its decision in State v. Raiburn (No. 95,908), concerning the Common Law concept of fugitive disentitlement. In a unanimous opinion, written by Justice Eric Rosen, the Court held that an appellate court can dismiss an appeal by someone who absconds while it is pending. In this particular case, the matter was remanded for a hearing in District Court to confirm that the appellant was in fact a fugitive.

Steven Raiburn was convicted of possession of marijuana and sentenced to a suspended sentence of 20 months in gaol and 18 months probation. He filed an appeal within the statutory time limits. Then he did not report for probation. The State moved to have his probation revoked.

When his appeal came up to be heard, the State moved to have it dismissed under the Common Law fugitive disentitlement doctrine which means that someone who flees during their appeal will have it dismissed regardless of the merits of their claim. The Court of Appeals agreed and dismissed the appeal. Raiburn appealed to the Kansas Supreme Court.

In a short opinion the Kansas Supreme Court reviewed Kansas, Federal and other State precedent on the matter of this doctrine. It concluded that the doctrine, though it crops up rarely, is still operative. Therefore the Court of Appeals does have the power to dismiss a case for this reason. The basic rationale for it is that the fugitive has removed himself from the Appellate Court’s jurisdiction: if he loses, he presumably will not turn himself in. If he wins, he may well not show up for a new trial.

However, in this case the Court found that nowhere had Raiburn been found to actually be a fugitive. The State had asserted it, Raiburn had not been present at the Court of Appeals and his advocate would not comment on his whereabouts but as a matter of law he had not been held to have breached his probation. Therefore the Court ruled that in such cases if the Appellate Court finds that it could apply the fugitive disentitlement doctrine it must remand the case to District Court for a finding, based on the preponderance of the evidence, as to whether the appellant is fugitive. It also held that an Appellate Court can choose not to dismiss an appeal under this doctrine in the same way as it may opt not to apply other general rules.

The case was therefore remanded to the Court of Appeals, to remand it to the District Court for a finding of fact as to whether Raiburn is a fugitive.

Donnie Ventris loses the rest of his appeal

July 25, 2009

July 24th. When the United States Supreme Court recently overturned the Kansas Supreme Court’s ruling in Kansas v. Ventris, it remanded the case for further proceedings. The Kansas Supreme Court has now issued its ruling on the remainder of the case. In a unanimous opinion, written by Justice Eric Rosen, the Court vacated its previous ruling in favor of Donnie Ventris and reinstated and affirmed the Court of Appeals’ decision affirming his conviction for aggravated robbery and aggravated burglary. In doing so it dispensed with two arguments Ventris had made which it had not addressed previously.

The background to this case has been covered extensively on this blog, linked articles all bear the KSvVentris tag. Ventris and his girlfriend, Rhonda Theel, were involved in the shooting death of Ernest Hicks, and left the scene of his murder with money and other possessions of his. Theel turned state’s evidence. A cellmate of Ventris’ (placed in the cell as a mole) spoke to him about the killing and also presented evidence at trial. Ventris was actually acquitted of the murder charge, but convicted of aggravated burglary and aggravated robbery. Ventris’ argued that the cellmate’s testimony should have been barred, even for the limited use (counteracting Ventris’ own testimony). The Kansas Supreme Court initially agreed with Ventris but the U.S. Supreme Court overturned that decision.

In its first opinion the Kansas Supreme Court did not address Ventris’ argument that testimony by Theel that he had forcibly strip-searched her a month before the killing should have been disallowed. Ventris argued that this error entitled him to a new trial. The Kansas Supreme Court has now addressed this issue and found that while the testimony should not have been allowed, it constituted a harmless error and thus Ventris does not get a new trial. The Court ruled that since the evidence did not go towards proving anything that was before the jury it failed the test for whether evidence is probative under State v. Gunby.

The Court also rejected Ventris’ Apprendi claim regarding his sentence based on his prior criminal history score.

The full text of the Court’s opinion is here.

Ventris’ argued that the cellmate’s testimony should have been barred, even for the limited use (counteracting Ventris’ own testminony). The Kansas Supreme Court initially agreed with Ventris but the U.S. Supreme Court overturned that decision.

Decision: State v. Casady

July 9, 2009

June 26th. The Kansas Supreme Court has issued its decision in State v. Casady (No. 99,023) an appeal against the imposition of a Bureau of Indigent Services (BIDS) application fee. In a unanimous opinion, written by Justice Eric Rosen, the Court held that the $100 BIDS Application Fee is constitutional both on its face and as applied to this case.

Cynthia Casady was prosecuted for posession of marijuana, drug paraphenalia and prescription drugs without a prescription. She was found to be indigent and counsel was appointed. As part of this process Kansas Law required that she pay a $100 BIDS Application Fee. Casady pled guilty to the prescription drugs charge and the other two were dismissed.

On appeal, Casady argued that the BIDS fee interfered with her Sixth Amendment right to counsel. The Kansas Supreme Court disagreed, finding that the statutary fee does not interfere with the right to counsel since there are safeguards which ensure that collection of the fee need not take place before the trial is over and in cases of manifest hardship the fee can be waived by the court. As a result, the right to counsel remains unaffected by the fee.

Decision: State v. Boyer

June 25, 2009

June 19th. The Kansas Supreme Court has issued its decision in State v. Boyer (No. 98,763), a sentencing appeal. In a unanimous opinion, written by Justice Eric Rosen, the Court held that juvenile adjudications do not count for the purposes of determining whether a criminal is classified as a persistent sex offender. As a result it vacated the sentence imposed on James Boyer and remanded for a new sentencing hearing.

Boyer committed sexually violent crimes, both as a juvenile and as an adult. Neither the Kansas Supreme Court nor the Kansas Court of Appeals’ deigns to tell us what the old offense was or what his newer, adult offense was. The District Court certified Boyer as a persistent sex offender since he had now committed two separate crimes, and thus his sentence was doubled from the presumed 55-month sentence to 110-months.

Boyer appealed, and the Court of Appeals agreed that juvenile adjudications did not count for the purposes of the persistent sex offender statute. Supporting this conclusion the Court of Appeals noted that the Kansas Sentencing Guidelines do include some juvenile adjudications in calculating criminal history scores and not others, while the persistent sex offender statute makes no mention of them. The Kansas Supreme Court affirmed the Court of Appeals decision, agreeing with this and noting that the Legislature has made a distinction between the way juvenile adjudications and criminal convictions are handled, and that if it wanted juvenile adjudications to count for this statute it could say so.

Therefore Boyer’s sentence was vacated and he will be resentenced without the persistent sex offender classification.

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.

Decision: State v. Cott

May 1, 2009

May 1st. The Kansas Supreme Court has issued its opinion in State v. Cott (No. 97,955) a case arising from a DUI prosecution. In a unanimous decision, written by Justice Eric Rosen, the Court ruled that DUI (which carries a the sentencing enhancement where a child under 14 is in the car) and the crime of aggravated endangerment of a child could both be charged in the same case.

Nicole Cott was pulled over and tested for alcohol after a State Trooper noticed her driving erratically. She tested above the legally allowed blood-alcohol level. At the time of her arrest, her four-year-old son was asleep in the front seat of the car (and not in a child-safety seat). Cott was ultimately charged with DUI, which carries a 30 day sentencing enhancement if a child under 14 is present in the car and with aggravated endangerment of a child, a felony.

The District Court held that the sentencing enhancement for DUI was a more specific version of the felony charge, since the felony charge was based on the same set of facts. The District Court held that to prove the felony charge, the State had to show that Cott did something to endanger her son, i.e. DUI, which made DUI with a sentencing enhancement when committed with a child in the car more closely match the circumstances of the case. As a result, the felony charge was dismissed.

The State appealed and won in the Court of Appeals which held that the two statutes were compatible with one another and described different crimes. Its ruling was largely based on a Virginia case containing similar circumstances. In today’s ruling the Kansas Supreme Court affirms the decision of the Court of Appeals based on an analysis of the construction of the two statutes. It does not reject the Virginia case, but seems to build a firmer foundation for ultimately the same decision.

In its conclusion, the Kansas Supreme Court finds that the two statutes at issue describe different prohibited behaviors. One prohibits DUI. The other prohibits reckless endangerment of a child. That the same conduct can give rise to charges under both laws is not enough to block prosecution under one of them.

Cott’s case was therefore remanded back to the District Court for a new preliminary hearing.

April 2009 Decisions

April 10, 2009

April 10th. So far in April, the Kansas Supreme Court has issued three decisions. One of these will be covered here shortly. The other two are an unpublished decision and an Attorney Discipline case. The unpublished decision was:

Docket Number / Case Name / Judge / Disposition / County
100,930 — In the Matter of the Marriage of Gerow — Rosen, J. — Affirmed — Johnson.

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.

The  disciplinary case was In Re Lober (No. 101,212). In the interests of balancing our workload against reader interest we do not write up Attorney Discipline cases, except in unusually newsworthy circumstances.

Decision: State v. Martinez

April 7, 2009

March 27th. The Kansas Supreme Court has issued its opinion in the case of State v. Martinez (No. 99,641), an appeal of a murder conviction from Wyandotte County. In a unanimous opinion, written by Justice Rosen, the court upheld Gabriel Martinez’s murder conviction for the drive-by shooting death of Jose David Contreras in 2006. Martinez is serving a life sentence without the possibility of parole for 50 years.

The Contreras family had been attending a dance in Kansas City, Kansas when they spotted a group of men, including Martinez, who Anthony Contreras had had trouble. After this, the Contreras family, including two brothers, Jose David and Nasser, left in their SUV. Martinez’ group of men followed and were spotted retrieving something from the trunk of their car. A few blocks away, when the SUV was parked in a McDonalds, the car Martinez was in opened fire, injuring Nasser and killing Jose David. Police later apprehended Martinez who confessed to having fired shots at the SUV from a 9mm which he had disposed of by tossing it over a bridge.

During the trial, concerns were expressed to the judge by one of the jurors that a second juror was acting oddly. The first juror was worried that the second juror was not mentally capable of being on the jury. The judge discussed the issue with her, and then ordered the jury to continue deliberations. The next day the judge met with the first juror, the presiding juror, Martinez and his counsel to further discuss the issue. Martinez moved for a mistrial, the judge held that the jury could continue to deliberate. Martinez was convicted of first-degree premeditated murder.

Martinez’ appeal focussed on the issue of the juror who concerns were raised over. He argued that he had been denied his right to a fair trial by the presence of an unsuitable juror who would not try the matter fairly. The Kansas Supreme Court rejected his arguments, holding that the trial judge did the right thing in leaving the juror in place. The concerns raised by the two other jurors never reached the point of showing that the juror was actually incompetent to try the case. Furthermore, the concerns  addressed the way in which he was deliberating – matters which may not be questioned. As the court puts it:

“A verdict may not be impeached by questions concerning a juror’s views or conclusions, the reasons for those views, the factors used in determining those conclusions, or what influenced those views or mental processes in reaching the juror’s conclusions.”

The Kansas Supreme Court did howeved find that the trial judge erred in his first communication with the juror who brought the matter to light. Since this conversation took place without the presence of Martinez it violated Martinez’ right to be present throughout the trial. However, based on the strength of the case and fact that there was not anything to the conversation which Martinez’ presence would have affected, the court held that this was a harmless error.

After dispensing with the now obligatory Apprendi sentencing claim, the Court rejected two other arguments from Martinez. Martinez argued that the wording of one of the jury instructions shifted the burden of proof to him. Since he had not objected to the instruction at trial, the Court would have needed to determine the instruction to be clearly erroneous in order to find for him. It did not. Martinez also argued that instructions for a lesser-included offense of second-degree reckless murder should have been given to the jury. Again Martinez had not objected at the time and therefore to find for him the Court would have had to find that there was a real possibility that the jury would have found him guilty of the lesser offense not the greater one. Since the evidence against him was strong, he had confessed and the jury had convicted him of first degree murder (while having the option instead of felony murder) this was certainly not the case.

Decision: Harris v. State

April 5, 2009

March 27th. The Kansas Supreme Court has issued its opinion in Harris v. State (No. 98,845), a collateral attack upon a murder conviction. In a unanimous opinion, written by Justice Rosen, the court rejected DeAndre Harris’ appeal for habeas relief, rejecting his claims of ineffective assistance of counsel.

Harris and another man, Code Laster, were convicted of shooting Paul Moore to death in 1996. Both men’s defense had been to claim that another man was the guilty party. The Kansas Supreme Court rejected Harris’ direct appeal in 1998. In a series of motions since 1999 Harris has sought to raise a claim that he was not adequately represented by his trial attorney. The District Court ultimately rejected these claims in 2004 and after some changes in appointed appellate counsel the Kansas Supreme Court addressed the case in this decision. Meanwhile, Harris’ co-defendant Laster also brought a habeas action claiming ineffective assistance of counsel. He lost, the Court of Appeals dispensing with his petition in 2006.

Harris raised three claims in his habeas petition, that he maintained showed he was inadequately defended. These were that:

  1. His attorney should have sought an instruction to the jury on ‘conspiracy to murder’, as an alternative crime for them to convict on.
  2. His attorney should have sought a separate trial, instead of his having been tried with Laster.
  3. His attorney should have developed facts in the preliminary hearing to facilitate a motion to dismiss.

The Kansas Supreme Court rejects all three arguments:

  1. During the preliminaries of the trial, a charge of ‘conspiracy to murder’ had been dismissed. Since ‘conspiracy to murder’ is not a lesser included offense of murder, the trial court could not have issued an instruction to the jury on it, whether one was requested or not.
  2. None of the established reasons for severing a trial of two co-defendants was present in this case, indeed Laster and Harris presented the same defense. Therefore counsel’s ‘failure’ to request a severance was not defective.
  3. Harris’ third and final issue was not elaborated upon in his brief and was therefore deemed to be abandoned.

Consequently, Harris will remain in gaol, serving a life sentence without the possibility of parole until 2022.