text
stringlengths 9
720k
| embeddings
sequencelengths 128
128
|
|---|---|
POWELL, J.;
In this appeal, the State seeks interlocutory review of the district court’s suppression of evidence. The controversy surrounds a package mailed from Reno, Nevada, deemed suspicious by a United States postal inspector and addressed to Shaun Boehm of Johnson County. A drug dog used by the Johnson County Sheriff s Department alerted to the package, and a warrant was prepared for the residence to which the package was ad dressed. The package was placed on the front step of the residence. Daniel Bierer arrived some time later, took the package from the front step, placed it in his vehicle, and drove away. Sheriffs deputies followed Bierer and stopped him after several miles. Bierer was arrested; the package was seized by law enforcement, opened without a warrant, and found to contain several bundles of marijuana. Bierer was charged with one count of distribution of marijuana and one count of drug tax stamp violation.
On appeal, the State contends Bierer did not have standing to challenge the search and seizure and, even if he did have standing, the officers had probable cause to search the package without a search warrant. Moreover, the State argues the good-faith exception to the exclusionary rule applies. Bierer argues the search of the package was unlawful without a warrant. Because we find that the sheriff s deputies had probable cause to search tire package located in Bierer s automobile, and therefore did not need a warrant, we must reverse the district court and remand for further proceedings.
Factual and Procedural History
On June 21, 2012, United States Postal Inspector Justin Lewis inspected a suspicious package addressed to “Shaun Boehm.” Based on Lewis’ prior experience as a narcotics investigator, he believed the package contained drugs. The package was mailed from Reno, Nevada, which is close to the California border where medical marijuana is grown legally. The package was taped at all exposed seams, which Lewis believed was done to mask the odor of drugs. The return address was valid, but the sender’s name was not associated with the return address. Further, the postage on the package was $94.50, but the sender waived signature, meaning no one had to sign for the package.
Lewis contacted Detective Antonio Garcia of the Johnson County Sheriff s Department to have his K-9, Franz, sniff the package for narcotics. Franz is a passive alert K-9 and is trained to sit upon locating the odor of narcotics. The officers lined up several packages for Franz to sniff, but Franz alerted only to the package addressed to “Shaun Boehm.” Lewis then contacted Deputy Mark Burns, also with the Johnson County Sheriff s Department, who prepared a search warrant for the residence to which the package was addressed and began preparations for a controlled delivery of the package.
On June 22, 2012, Lewis knocked on the door of the residence, but no one responded. Lewis left the package at the front door of the residence and left. Later, Bierer arrived at the residence, took the package from the porch, placed the package in his vehicle, and drove away.
Deputies in unmarked police cars began to follow Bierer. After several miles, Deputy Joshua Theiss initiated a traffic stop of Bierer’s vehicle. Theiss told Bierer that he had a chip in his windshield and asked him to step out of the vehicle. When Bierer stepped out of his vehicle, Theiss arrested him. Bierer was the only occupant in the vehicle.
Theiss testified that he did not know if Bierer’s windshield was actually obstructed, but another officer told him that it was. Theiss said that he stopped the vehicle and arrested Bierer solely because he had the package in his vehicle.
Bums looked inside the vehicle and saw the package in the back seat. Because there was heavy traffic on the road, officers transported Bierer’s vehicle to the New Century Detention Center to conduct a warrantless search of the vehicle. Bums was present when the package was opened. The package contained another box wrapped in birthday wrapping paper. Inside the box were 10 food-saver bags wrapped inside 4 trash bags, which contained bundles of marijuana.
On cross-examination, Bums stated that he preferred to get a search warrant for the package, but the decision was made not to get one. The deputies believed someone from the home was going to take the package from the front porch.
On June 23, 2012, the State filed a complaint charging Bierer with one count of distribution of marijuana and one count of drug tax stamp violation. On September 18, 2012, Bierer filed a motion to suppress claiming the search and seizure of the sealed package containing the marijuana was unlawful. The State filed a response alleging, inter alia, Bierer did not have standing to challenge the search and the search was lawful. Thereafter, Bierer filed a supplemental brief on the motion to suppress alleging, inter alia, he did have standing to challenge the search and California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991), had not been adopted in Kansas. On November 27, 2012, the district court heard argument and testimony on tire motion to suppress then took the motion under advisement. On January 7, 2013, the district court issued its order granting Bierer s motion to suppress.
The State timely filed an interlocutory appeal.
Standard of Review
In reviewing a district court’s ruling on a motion to suppress, this court applies a bifurcated standard of review. This court accepts the factual findings of the district court if they are supported by substantial competent evidence. Then, this court reviews the district court’s legal conclusions based upon those findings of fact de novo. State v. Sanchez-Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012).
Did the Defendant Have Standing to Challenge the Warrantless Search of the Package?
The State argues that Bierer lacked standing to challenge the search because his name was not on the package and he obtained the package from someone else’s residence. Bierer contends that he was in lawful possession of the vehicle searched and had a pos-sessoiy interest the package seized. We agree with the district court and Bierer that he had standing to challenge the search of the package.
The district court, relying on State v. McCammon, 45 Kan. App. 2d 482, 484-85, 250 P.3d 838, rev. denied 292 Kan. 968 (2011), ruled that Bierer had “standing to challenge the search because [he] went to a specific address, picked up the package, and placed the package inside his vehicle. [Bierer] did not disavow possession of the package. Therefore, [Bierer] had a possessory interest in the package.”
A defendant must have standing to challenge a search or seizure. 45 Kan. App. 2d at 484. The burden is on the defendant to dem onstrate a legitimate expectation of privacy in the place searched or the property seized. To meet this burden, the defendant must establish a subjective expectation of privacy and the expectation is one that society recognizes as reasonable. State v. Rupnick, 280 Kan. 720, 748, 125 P.3d 541 (2005).
“Letters and other sealed packages are in the general class of effects in which the public has a legitimate expectation of privacy. [Citation omitted].” State v. Daly, 14 Kan. App. 2d 310, 317, 789 P.2d 1203, rev. denied 246 Kan. 769 (1990). However, as the State points out, Kansas has not addressed whether a suspect has a legitimate expectation of privacy in a package sent through the mail that is addressed to a fictional or third party.
In United States v. Sheldon, 351 F. Supp. 2d 1040 (D. Hawaii 2004), employees with Airborne Express became suspicion about a package when an individual requested overnight shipping but did not purchase insurance. The individual did not have identification and paid for the postage in cash. An Airborne Express employee contacted the phone number of the sender, and the people who answered did not know anyone by the name of the alleged sender. Pursuant to Airborne Express policy for suspicious packages, an employee contacted law enforcement and opened the parcel, which contained a rectangular object (“Blue Brick”) tightly wrapped in plastic wrap, along with several pots and lids. When the officer arrived, he slit open the Blue Brick and saw a white powdeiy substance. The officer seized the package and contacted the federal Drug Enforcement Agency (DEA). DEA agents obtained a warrant for the residence and a warrant to place an electronic beeper in the package, which would indicate the location of the parcel and alert when it was opened. Officers conducted a controlled deliveiy of the package; the defendant signed for the parcel and took it inside the residence. Later, the beeper went off, indicating that the package had been opened. DEA agents immediately entered the house and located the package under the defendant’s bed. The court found that the defendant demonstrated ownership and control over the package upon delivery and took measures to reinforce her privacy interest after taking delivery of it. 351 F. Supp. 2d at 1044. The court found that this expectation of privacy was objectively reasonable given the concealment of the Blue Brick inside a pot and in a sealed envelope. 351 F. Supp. 2d at 1044-45; see also United States v. Pitts, 322 F.3d 449, 459 (7th Cir. 2003) (person has a right to use false name in sending and receiving mail in order to maintain privacy); United States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992) (defendant has standing where package addressed to fictitious name which is alter ego of defendant).
However, the State relies on other cases, including a case from the federal district court here in Kansas, to assert that Bierer has no standing to challenge the search of the package. In United States v. Wood, 6 F. Supp. 2d 1213, 1219 (D. Kan. 1998), a detective who was observing outgoing packages at a Federal Express facility noticed a suspicious package with a fictitious return address and the postage paid by cash. After obtaining a search warrant, the detective found 2 pounds of methamphetamine in the package. The addressee was an actual person who occasionally lived at the residence. The government argued—and the court agreed-—the defendant did not have standing because he was not named as the sender or addressee of the package and the name used was not defendant’s fictitious name or his alter ego. 6 F. Supp. 2d at 1221-24. Further, the court reasoned that tire defendant did not admit an ownership interest in the package or otherwise exercise control of the package once it was delivered. 6 F. Supp 2d at 1223-24.
We think Wood is distinguishable on its facts because Bierer exerted possession over the package by taking it from the front porch of the residence and placing it in his vehicle. There is no dispute that Bierer owned the vehicle. By placing the package in his vehicle, Bierer exercised a possessory interest in the package and intended to exclude others. Moreover, Bierer never denied ownership or possession of the package. And, unlike Sheldon, Bierer did not attempt to conceal the package; he simply placed the package in the back seat of his vehicle. When Burns approached Bierer’s vehicle, tire package was visible on the back seat. We agree with the district court and hold that Bierer had standing to challenge the search of the package. "
Does California v. Acevedo Control the Disposition of this Case?
Having agreed that Bierer had standing to challenge the search of the package, we must now determine whether the search of the package was reasonable without a warrant. In deciding this question, we are confronted with what appears to be conflicting precedent.
“The Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches and seizures, and a warrantless search is per se unreasonable unless it falls within a recognized exception.” State v. Ramirez, 278 Kan. 402, 404-05, 100 P.3d 94 (2004). “[T]he wording and scope of the two sections are identical for all practical purposes. If conduct is prohibited by one it is prohibited by the other.” State v. Johnson, 253 Kan. 356, 362, 856 P.2d 134 (1993). Although the Kansas Supreme Court has recognized that it could extend state constitutional protections of § 15 beyond the federal guarantees provided by the Fourth Amendment, it has declined to do so. State v. Hoeck, 284 Kan. 441, 463, 163 P.3d 252 (2007).
“ ‘Kansas has previously recognized several exceptions to the Fourth Amendment search warrant requirement: consent; search incident to a lawful arrest; stop and frisk; probable cause to search accompanied by exigent circumstances, of which hot pursuit is one example; tire emergency doctrine; inventory searches; plain view; and administrative searches of closely regulated businesses.’ ” State v. Mendez, 275 Kan. 412, 421, 66 P.3d 811 (2003) (quoting State v. Baughman, 29 Kan. App. 2d 812, 814, 32 P.3d 199 [2001]).
“A commonly applied exigent circumstance is the ‘automobile exception’ which allows the warrantless search of a vehicle when probable cause has been established to justify a search.” State v. Conn, 278 Kan. 387, 395, 99 P.3d 1108 (2004). The State bears tire burden of proving the lawfulness of the search and seizure. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003).
The State argues that California v. Acevedo, 500 U.S. 565, controls tire disposition of this case. In Acevedo, the United States Supreme Court considered “whether the Fourth Amendment requires the police to obtain a warrant to open tire sack in a movable vehicle simply because they lack probable cause to search the entire car.” 500 U.S. at 573. The Court held that “[t]he police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.” 500 U.S. at 580.
In Acevedo, the United States Supreme Court recognized “the dichotomy between the rule in Chadwick and the rule in Ross.” 500 U.S. at 568 (citing United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 [1982]; United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 [1977]). Under Chadwick, 433 U.S. at 13-16, if officers have probable cause to search a container known to be in an automobile and believed to contain contraband, tire container cannot be searched until officers obtain a search warrant for the container. However, under Ross, “ ‘[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part the vehicle and its contents that may conceal the object of the search.’ ” Acevedo, 500 U.S. at 570 (quoting Ross, 456 U.S. at 825). The Supreme Court recognized that this discrepancy “has confused courts and police officers and impeded effective law enforcement.” Acevedo, 500 U.S. at 576. The Supreme Court held that “Ross now applies to all searches of containers found in an automobile. In other words, the police may search without a warrant if their search is supported by probable cause.” 500 U.S. at 579. Acevedo overruled the Chadwick specific container distinction. However, the Court reaffirmed the principle that “[pjrobable cause to believe that a container placed in the trunk of a [vehicle] contains contraband or evidence does not justify a search of the entire [vehicle].” Acevedo, 500 U.S. at 580 (quoting Ross, 456 U.S. at 824).
Bierer argues, and the district court agreed, that the Kansas Supreme Court has not adopted the holding in Acevedo. Instead, the district court and Bierer rely on State v. Jaso, 231 Kan. 614, 621, 648 P.2d 1 (1982), for tire proposition that a search of the container—in this case tire package—required a warrant. In that case, our Supreme Court recognized the holding in Ross: “ Tf probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search/ ” Jaso, 231 Kan. at 620 (quoting Ross, 456 U.S. at 825). The court also noted an exception to this rule established in Chadwick: “If the officers have specific knowledge that they are seeking a specific container and that container is discovered in the vehicle there appears to be no justification for a further search of the vehicle or even tire container itself until a warrant has been obtained.” Jaso, 231 Kan. at 621; see also State ex rel Love v. One 1967 Chevrolet, 247 Kan. 469, 477, 799 P.2d 1043 (1990) (citing favorably to Jaso for the requirement that the search of a container requires a warrant).
We disagree that our Supreme Court’s recitation of the specific container exception in Jaso (and in Love for that matter) is binding precedent on our court as “we are obligated to follow dre United States Supreme Court’s interpretation and application of the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 655-57, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, reh. denied 368 U.S. 871 (1961).” State v. Thompson, 284 Kan. 763, 779, 166 P.3d 1015 (2007). Moreover, Acevedo has been cited favorably by our appellate courts many times. See, e.g., State v. MacDonald, 253 Kan. 320, 325, 856 P.2d 116 (1993) (relying on Acevedo, car search upheld as supported by probable cause); State v. Lundquist, 48 Kan. App. 2d 180, 184, 286 P.3d 232 (2012) (probable cause to search automobile); State v. Tonroy, 32 Kan. App. 2d 920, 926, 92 P.3d 1116 (2004) (citing Acevedo for the proposition that automobile searches are different than other searches); State v. Blair, 31 Kan. App. 2d 202, 207, 62 P.3d 661 (2002) (law enforcement lacked probable cause to search home and garage); State v. Chapman, 23 Kan. App. 2d 999, 1005, 939 P.2d 950 (1997) (evidence suppressed as police lacked reasonable suspicion to detain defendant and car); State v. Groshong, No. 93,419, 2005 WL 2665769, at ⅞2 (Kan. App. 2005) (unpublished opinion) (search and seizure of car passenger’s purse upheld where search of automobile supported by probable cause); State v. Darkis, No. 90,738, 2004 WL 1373302, at *3 (Kan. App. 2004) (unpublished opinion) (citing Acevedo for the proposition that probable cause to search automobile includes any containers located within); see also Rupnick, 280 Kan. at 744-45 (McFarland, C.J., concurring in part and dissenting in part) (warrant required for search of computer hard drive unless exception applies).
Because we are bound by United States Supreme Court decisions interpreting and applying the Fourth Amendment, we hold that Acevedo compels the result in this case—officers can conduct a warrantless search of a package located within an automobile if they have probable cause to believe contraband or evidence is contained therein.
When applying Acevedo to the facts of this case, we hold that the deputies had probable cause to believe the package contained narcotics and, thus, could conduct a warrantless search of the package. The district court indicated “officers had probable cause to search the package but did not obtain a search warrant to do so.” Lewis testified that die package was mailed from Reno, Nevada; the package was taped at all exposed seams to mask the odor of drugs; die sender’s name was not connected with the return address; and the sender waived signature. A K-9 alerted to the smell of narcotics. Deputies set up a controlled delivery at the address to which the package was addressed, conducted surveillance on the residence, and watched Bierer take the package from the residence and place it in his vehicle. Bums testified that he saw the package in plain view on Bierer’s back seat. Accordingly, the deputies had probable cause to stop and search the vehicle for the package and could conduct a warrantless search of the vehicle to locate the package and search it.
Because we find that law enforcement had probable cause to search the package located within Bierer’s automobile without a warrant, we need not address the State’s other allegation of error, namely, whether the Leon good-faith exception would apply to this case. See generally United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (exclusionary rule not applied if law enforcement reasonably relied upon search warrant).
The judgment of the district court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. | [
-15,
-28,
-3,
44,
42,
96,
59,
34,
82,
-83,
-20,
83,
-83,
-46,
-123,
51,
-5,
63,
116,
-39,
-47,
-74,
115,
98,
82,
-13,
-120,
-41,
61,
79,
12,
-50,
95,
52,
-118,
85,
68,
90,
-89,
-48,
-114,
1,
-111,
123,
115,
98,
-120,
-85,
122,
15,
113,
-114,
-31,
46,
27,
-61,
109,
42,
-21,
-91,
-55,
-15,
-69,
29,
77,
6,
-125,
34,
-103,
-123,
-40,
122,
-108,
49,
-112,
-8,
-13,
-73,
-118,
-12,
3,
-69,
-128,
100,
-30,
32,
109,
-83,
-84,
-120,
62,
59,
31,
39,
-108,
72,
107,
33,
-106,
-99,
52,
50,
46,
-18,
-21,
76,
31,
124,
-120,
-58,
-80,
-109,
63,
96,
-116,
-61,
-25,
-91,
48,
96,
-60,
-14,
86,
117,
49,
27,
-49,
-46
] |
The opinion of the court was delivered by
Biles, J.:
In this capital murder case resulting from a double homicide and shooting of a third victim, Phillip D. Cheatham, Jr. was convicted and sentenced to death. On direct appeal to this court, he claims he was denied his light to a fair trial due to ineffective assistance of counsel. Cheatham characterizes his trial attorney’s performance as a “cornucopia of. . . ineptness” based on both performance deficiencies and conflict of interest.
We bifurcated his ineffectiveness arguments from other claimed trial errors and remanded to the district court for an evidentiary hearing pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986) (appellate court discretion to remand ineffective assistance of counsel allegations upon sufficient showing in a direct appeal). During that proceeding, the State disputed that Cheatham received ineffective assistance during the guilt phase but stipulated Cheatham’s attorney was ineffective during the trial’s penalty phase. See K.S.A. 2010 Supp. 21-4624 (requiring a jury to first decide a defendant’s guilt before reconvening to determine whether to impose the death penalty). The district court, which we refer to throughout this opinion as “the Van Cleave court,” reversed the death sentence because of that stipulation and ordered a new sentencing trial.
As to the guilt phase, the Van Cleave court agreed with some of Cheatham’s claims. It determined counsel was deficient in failing to file a statutorily required notice of alibi defense, as well as entering into an improper attorney fee agreement and generally lacking the experience required to try a capital murder case. The court went so far as to observe that Cheatham’s attorney “had no business taking on a death penalty case.”
But despite these findings, the court upheld Cheatham’s convictions. It found there was no showing of “a reasonable probability that, but for those deficiencies . . . the outcome of the guilt phase would have been any different.” Now before this court, Cheatham challenges several of the Van Cleave court’s rulings and its ultimate conclusion. We disagree with the Van Cleave court.
We hold that trial counsel’s representation denied Cheatham the fair trial he is guaranteed by both the federal and state constitutions. Specifically, we hold that counsel’s performance was deficient in several respects, which were most seriously problematic when he volunteered to the jury that Cheatham had a prior vol untary manslaughter conviction and referred repeatedly to his client as a “professional drug dealer” and “shooter of people.” This denied Cheatham his right to a fair trial. We hold further that under the circumstances in this case counsel’s fee arrangement created an actual conflict of interest that adversely affected the adequacy of Cheatham’s defense. We reverse his convictions and remand the case for a new trial. This renders the other issues on appeal moot.
Factual and Procedural Background
The underlying murder trial arose after the shooting deaths of Annette Roberson and Gloria Jones and the severe wounding of Annetta Thomas at a Topeka residence on December 13, 2003. Thomas told police officers at the scene that two men entered the residence, conversed for a while, and then drew handguns and began shooting. She said she knew one of the two shooters as “KP” or “Phil.” She did not know the other man. “KP” was later identified as Cheatham.
Five days after the shootings, the State charged Cheatham with two counts of first-degree premeditated murder for the deaths of Roberson and Jones; one count of attempted murder and one count of intentional aggravated battery for shooting and then beating Thomas; and one count of criminal possession of a firearm. The State predicated the firearm’s charge on Cheatham’s 1995 voluntary manslaughter conviction.
Sometime after the shooting, but prior to his arrest, Cheatham telephoned Ira Dennis Hawver, a Kansas attorney, who at the time represented Cheatham on unrelated drug charges in Shawnee County. At the Van Cleave hearing, Hawver testified that Cheat-ham advised him during their telephone conversation that Cheat-ham was being accused of killing Roberson and Jones and shooting Thomas. Hawver said he responded by saying, ‘Well, you know, that’s ridiculous becausé you’re in Chicago and were headed that way.”
Cheatham was arrested in Chicago on December 31 under a different name and for a different offense. He was eventually extradited to Kansas, where the public defender’s office was initially appointed to represent him. Two days after Cheatham’s first appearance in district court, Hawver became counsel of record in the murder case at Cheatham’s request, and the public defender’s office withdrew.
At the time he accepted Cheatham’s representation in this multiple murder case, which would soon transform into a capital murder proceeding, Hawver was a sole practitioner residing outside of Ozawlde, Kansas, in what Hawver described as a busy country law practice. Hawver estimated his legal business in 2005 as “high volume,” comprising about 60 percent civil cases and 40 percent criminal. He said he appeared in area courts nearly every day. His criminal caseload consisted of both misdemeanors and felonies, such as burglaries, theft, and drug-related felonies. As he later testified, his practice ran “the gamut, whatever walked into the office.”
Prior to accepting Cheatham’s representation, Hawver had tried three noncapital murder cases—two as lead counsel and one as cocounsel. All three occurred before 1985—at least 20 years before Cheatham’s capital murder trial. Hawver told the Van Cleave court that he had tried approximately 70 jury trials in his career but had never tried, or participated in the defense of, a death penalty case before accepting Cheatham’s. Hawver was not on the list maintained by the Board of Indigents’ Defense Services (BIDS) as a “death-qualified” private counsel, i.e., an attorney specifically trained to defend capital cases under standards required by that agency. See K.A.R. 105-3-2 (any BIDS appointed attorney in capital case shall be a prequalified death penalty attorney). He was on the standard criminal case appointment list for Jefferson County but not Shawnee County, where Cheatham’s case was filed.
Hawver agreed to Cheatham’s representation knowing Cheat-ham did not have money to pay for Hawver’s time or to reimburse expenses for investigators, consultants, expert witnesses, travel, photocopying, or the other substantial out-of-pocket costs usually associated with a capital murder case. Hawver later testified he never intended to use his own money to advance expenses on Cheatham’s behalf. There was no written fee agreement.
Hawver also testified that Cheatham promised to pay a $50,000 attorney fee, but his testimony conflicts as to whether this was a flat or contingency fee. Early on, Hawver swore in an affidavit the fee would be owed only if Cheatham was acquitted, stating “I agreed to represent Mr. Cheatham on the murder charges in exchange for his promise to pay $50,000 for my time, if he was found not guilty on the charges.” (Emphasis added.) Later, Hawver recanted that statement and testified the $50,000 was owed regardless of the outcome. The Van Cleave court later observed in its decision that “[i]t is clear trial counsel had problems remembering [diese] details.” Regardless, Hawver acknowledged that Cheatham was indigent and he was unlikely to ever receive payment. Hawver testified that he agreed to represent Cheatham because of his “heart-felt belief’ that Cheatham was innocent.
Hawver did not focus on Cheatham’s case full time. He would later testify that he “had other things going on” during the 4 months leading up to Cheatham’s scheduled trial, which led Haw-ver to have his client acknowledge in writing that Cheatham understood Hawver was not going to concentrate “full-time” on the case. Hawver said he explained to Cheatham that he was going to continue representing others in order “to earn a living” and also that he was running for political office, which is something Hawver had done in prior election cycles. At the Van Cleave hearing, Haw-ver and Cheatham’s new counsel had the following exchange:
“Q.: Now, at the same time that you were preparing for this trial in that four-month period, you were running for governor as well; is that right?
“A. [Hawver]: Correct.
“Q.: In fact, you asked [Cheatham] to acknowledge that you were going to run for governor and that it was okáy with him; is that right?
“A. [Hawver]: True. I wanted him to know that I had other things going on, and that he, you know, I wasn’t going to be concentrating full-time on this case because I had to earn a living and I was running for governor.
“Q.: You were interested in that being acknowledged in writing, right?
“A. [Hawver]: Yes.
“Q.: And that was to protect yourself?
“A. [Hawver]: Well, no, I wanted him to know that what I was [d]oing and make the decision whether he wanted me to continue to represent him.”
Hawver described his political activities to the Van Cleave court as a “hobby” that he engaged in as a “bully pulpit” to express disagreement with certain public policies, such as the Iraq war. Often, Hawver said, he would attend political events dressed in costume as Thomas Jefferson to reflect Hawver s views about the original underpinnings to the United States Constitution. As Haw-ver explained, these political and professional activities occupied a significant enough portion of his time that he wanted Cheatham to acknowledge they would coincide with tire defense of the murder charges.
Cheatham agreed to Hawver s conditions, but there is nothing in the record to show that Cheatham understood the intense time commitments required for his defense due to the multiple murder charges and the death penalty sanction they carried. In other words, there is nothing demonstrating Cheatham was given an opportunity to appreciate what he was giving up in relation to what he would be getting, or to discuss with another attorney the ramifications of the choices he had. See Boldridge v. State, 289 Kan. 618, 624, 215 P.3d 585 (2009).
On June 24, 2005, the State amended its complaint to add one count of capital murder for the deaths of Roberson and Jones and, alternatively, a count of first-degree premeditated murder for each killing. The complaint continued to charge attempted murder and aggravated battery for the attack on Thomas and criminal possession of a firearm. A preliminary hearing was held from June 30 to July 7, 2005. Hawver was assisted at this proceeding by Bret D. Landrith, a Topeka attorney with little criminal case experience. Landrith’s appearance at tire preliminary hearing was the only assistance from outside counsel Hawver had during Cheatham’s representation.
When Cheatham’s preliminary hearing concluded, the district court found probable cause on all counts. The next day, the State filed a notice of intent to request a separate sentencing procedure and notice of aggravating circumstances as required for the State to seek the death penalty under K.S.A. 21-4625. The State alleged as aggravating factors that Cheatham: (1) previously was convicted of voluntary manslaughter, a crime in which Cheatham inflicted great bodily harm, disfigurement, dismemberment, or death; (2) knowingly or purposely killed or created great risk of death to more than one person; and (3) authorized or employed another person to commit the crime.
At the Van Cleave hearing, Patricia Scalia, BIDS executive director, testified she contacted Hawver to inquire about Cheatham’s representation shortly after the State amended the charges to seek the death penalty. BIDS is statutorily authorized to provide indigent defendants with resources to defend criminal charges, including capital cases. See K.S.A. 22-4501 et seq. Scalia informed Haw-ver about the services and assistance BIDS would provide in Cheatham’s death penalty case, including furnishing cocounsel, investigators, consultants, and expert witnesses. Hawver confirmed to Scalia that Cheatham was indigent and qualified for BIDS services, but Hawver did not accept Scalia’s offer of assistance. There was no further contact with BIDS regarding Cheatham’s case prior to trial.
Plawver testified in the Van Cleave proceedings that he could not recall speaking with Scalia but conceded he did not seek financial assistance from BIDS because it was not his “practice to contact tire Board of Indigent Defendants to ask them to fund a case” he had undertaken. He also testified that despite some knowledge of the appointment system for indigent criminal defendants, he “didn’t even inquire” whether he could be appointed to represent Cheatham so that funds could be made available for the defense. And there is nothing in the record suggesting Cheatham knew about any of these available resources for his defense or that he knew Hawver had given up access to them.
In other pretrial proceedings, Hawver filed a motion for discovery and inspection, seeking all information held by the State regarding the crimes charged, including documents and photographs. Before trial, Hawver filed a notice to take a deposition to preserve the testimony of a Shawnee County jail inmate, whom Hawver claimed witnessed a confession by the husband of one of the victims, claiming responsibility for the murders. The notice alleged the inmate had a malfunctioning pacemaker and the defense needed his testimony preserved. The State objected, arguing there was no concrete evidence the inmate would be unable to testify. In denying this motion, the district court found no evidence presented to show the witness’ possible unavailability as required by K.S.A. 22-3211.
Hawver also filed a motion for an inquisition hearing to determine whether certain potential witnesses would invoke their Fifth Amendment right to remain silent. The record does not reflect whether this motion was ever heard or that Hawver followed up on it.
At another hearing about 2 weeks before trial, the State advised the district court that it was using Cheatham’s prior voluntary manslaughter conviction to prove he was a convicted felon for the purposes of the criminal possession of a firearm charge. The State further advised it had sent Hawver a letter offering to stipulate during the guilt phase that Cheatham was a convicted felon so that the “nature of that prior conviction doesn’t come before the jury because the courts have found that it can be more prejudicial than probative.” The State also indicated Hawver had accepted that offer, and the State volunteered to draw up a written stipulation for all parties to sign. The court indicated the stipulation should be part of the official court record, and the State could “clean it up” by filing the stipulation. Hawver responded by stating, “[The State] will memorialize it.” A written stipulation was never entered into the record, but, consistent with the State’s offer, the jury instructions indicated the parties stipulated that “[t]he defendant had been convicted of a person felony on February the 14th, 1995.”
Less than 1 week before trial, the State next moved to prevent Cheatham from presenting any alibi evidence other than his own testimony because Hawver had not. filed a written notice of alibi defense as required by K.S.A. 22-3218. The State’s motion was prompted when Hawver indicated to a prosecutor that Hawver intended to prove Cheatham was somewhere else at the time of the crime. K.S.A. 22-3218 requires a defendant charged with a crime that necessitates the defendant’s personal presence, such as the charges against Cheatham, to give the State at least 7 days’ notice of any alibi defense, specifying where the defendant will claim he was at the time of the crime and identifying any witnesses supporting the alibi.
On the morning tire trial commenced, the district court confirmed Hawver’s failure to file the required notice. The court then held that Cheatham would be precluded from presenting alibi witnesses or other testimony about the subject, except from any testimony by Cheatham himself.
On August 29, 2005, jury selection began. Despite the stipulation offered by tire State and accepted by Hawver to omit any reference to Cheatham’s prior manslaughter conviction, Hawver told prospective jurors that Cheatham’s lifestyle included being a cocaine dealer and that Cheatham had killed another cocaine dealer with a gun. Hawver turned to Cheatham to confirm the truth of tiróse statements. Hawver repeated a similar characterization shortly thereafter. We discuss this in greater detail later in this opinion.
The trial’s guilt phase lasted 9 days. Among the State’s witnesses was Annetta Thomas, the lone survivor, who unequivocally testified Cheatham was one of the shooters. Under the State’s prosecution theory, Cheatham killed the women in retaliation for stealing drug money from him. But Hawver argued that another man, Todd Adkins, who was Annette Roberson’s boyfriend, killed the women because he was jealous of a lesbian affair between Roberson and Thomas.
Cheatham testified in his own defense and denied any involvement with the crimes. He maintained that he had left town at Hawver’s suggestion and gone to Chicago on the afternoon of the day the crimes were committed. Importantly—and despite the State’s stipulation—Hawver had Cheatham testify in detail about his prior voluntaiy manslaughter conviction. This testimony prompted the State on cross-examination to introduce exhibits— without objection from Hawver—depicting that victim’s four gunshot wounds and exploring the crime in greater detail.
The jury found Cheatham guilty on all counts, and the proceedings turned to punishment. The penalty phase was conducted in a single day. The State called one witness, the prosecutor from Cheatham’s previous voluntary manslaughter case. The defense called two witnesses, Cheatham and his mother. The jury unanimously found all three aggravating circumstances alleged by the State and further found those aggravating circumstances were not outweighed by any mitigating circumstances. Under K.S.A. 21-4624(e), tiróse findings mandate a death sentence.
Immediately after the jury announced its penalty phase verdict, Hawver advised the trial court that Cheatham wanted Hawver relieved and a new attorney appointed. The judge asked Cheatham to delay that request until after sentencing. Cheatham agreed. At tire subsequent sentencing hearing, the district court imposed the death penalty consistent with the juiy’s verdict. In addition, the court sentenced Cheatham to 285 months for the attempted murder of Thomas, 43 months for tire aggravated battery of Thomas, and 9 months for the criminal possession of a firearm. The sentences were to be served consecutively.
Hawver timely filed Cheatham’s notice of appeal, and the district court allowed him to withdraw as Cheatham’s counsel. The Capital and Conflicts Appeals Office assumed responsibility for Cheat-ham’s appeal and began an investigation into whether Hawver’s representation amounted to ineffective assistance of counsel. As a part of its investigation, Hawver executed an affidavit in which he admitted to doing—or failing to do—numerous things before and during Cheatham’s trial that were deficient and prejudicial to Cheatham’s defense effort.
In that affidavit, among other concessions, Hawver acknowledged that he only spent about 40 to 60 hours working on Cheat-ham’s case during the 126 days between when he accepted the engagement and die first day of trial. He further stated:
“At the time I entered my appearance I did not consult with tire BOARD OF INDIGENT[S’] DEFENSE to explore whether funding might be available to support my representation of the client. Nor did I meet with any person with experience in the pre-trial investigation of a capital case. In truth, I should not have accepted the case given my lack of capital trial experience, and the unavailability of necessary funding which I now understand is required in the preparation and trial of cases, such as this one in which the client faces a possible death sentence(Emphasis added.)
Hawver later added:
“I was not able to evaluate the strength of my theory of defense by employing an investigator and putting him into the field to question the scores of witnesses which may have had information to share about the day of the crime, the credibility of certain key witnesses, the relationship of my client with the Topeka police department and the resulting prejudice, the potential alibi witnesses or other critical evidence which would have [been] uncovered with the help of a competent investigator. I admit that I did not provide effective assistance of counsel when I decided to forgo a comprehensive investigation of the trial facts.” (Emphasis added.)
On direct appeal to this court, Cheatham’s appellate counsel promptly sought remand to the district court for a hearing on Cheatham’s ineffective assistance of trial counsel claims, which related to conduct during both the guilt and penalty phases. The State opposed this relief This court determined the claim merited preliminaiy remand for a Van Cleave evidentiary hearing, which is the focus of our discussion below.
Prior to the Van Cleave hearing, the State stipulated that Cheat-ham received ineffective representation during tire penalty phase based on four conceded errors. First, the State agreed Hawver “did not prepare for the sentencing phase of Mr. Cheatham’s case” and admitted further that if he had prepared mitigation evidence it would have included character testimony from family members, evidence of parental neglect, maternal drug use, violence against his mother, poverty, and the absence of a father figure. The State acknowledged that forgoing the presentation of mitigation evidence would have been a reasonable trial strategy only if that decision were made after a reasonable investigation into mitigation evidence, citing Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003).
Second, the State stipulated that Hawver “did not attempt to secure funds to investigate a second phase, and had no defense team to assist in investigation or presentation of [the sentencing] phase defense.” Third, it stipulated that Hawver neglected to qualify the jurors for the sentencing phase by failing to discover and remove any jurors who would automatically vote for the death penalty once they found Cheatham guilty in the first phase. And fourth, the State stipulated that Hawver argued to tire jury during the second phase that whoever committed the crime deserved to die.
The Van Cleave hearing regarding ineffectiveness during the guilt phase of the original trial was held on November 30, 2009. Cheatham presented three witnesses: Hawver, Scalia, and Charles Rogers, an expert on defense performance in death penalty cases. The State called no witnesses but cross-examined Hawver and Rogers. Cheatham was allowed to question Hawver directly.
In its order the Van Cleave court concluded that Hawver “had no business taking on a death penalty case.” It also found there were “several areas where trial counsel’s performance was deficient.” But despite this, the court determined that Cheatham failed to establish Hawver’s deficiencies sufficiently prejudiced the defense during the guilt phase. And regarding the penalty phase, the court held that Hawver was ineffective during the penalty phase and ordered a new penalty phase trial—consistent with the parties’ stipulation.
New counsel was appointed for Cheatham, and his direct appeal to this court resumed. We ordered bifurcation of the ineffective assistance of counsel claims from the other issues in the appeal as authorized by K.S.A. 21-4627(d) (court may “enter such orders as are necessary to effect a proper and complete disposition of the review and appeal” in death penalty cases). We instructed the parties to brief only whether the Van Cleave court’s decision on the ineffective assistance of counsel claim in the guilt phase was error. Additional facts are discussed as necessary to the arguments.
Analysis
Cheatham’s brief asserts ineffective assistance of counsel arguments under both the Sixth Amendment to the United States Constitution and section 10 of the Kansas Constitution Bill of Rights. Neither Cheatham nor the State suggests different standards apply for the state constitutional provision.
The Sixth Amendment guarantees in “all criminal prosecutions” that “the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” And this right to counsel is tire right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984); State v. Gonzales, 289 Kan. 351, 357, 212 P.3d 215 (2009); Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting Strickland). In other words, to be meaningful the right to counsel necessitates more than a lawyer s mere presence at a proceeding. State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012). In addition, this constitutional right extends a duty of loyalty to the client. A defendant in a criminal trial must have “ ‘representation that is free from conflicts of interest.’” Boldridge v. State, 289 Kan. at 622 (quoting Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 [1981]). “The puqpose of the effective assistance guarantee ‘is simply to ensure that criminal defendants receive a fair trial.’ ” Galaviz, 296 Kan. at 174 (quoting Strickland, 466 U.S. at 689)]. This Sixth Amendment right to counsel is made applicable to state proceedings by the Fourteenth Amendment to the United States Constitution. 296 Kan. at 174.
The Kansas Constitution Bill of Rights, section 10, provides in pertinent part: “In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel. . . .” This court has previously applied Strickland as the “touchstone case” when a defendant alleged ineffective assistance of counsel under both the Sixth Amendment and the Kansas Constitution. Ferguson v. State, 276 Kan. 428, 436, 78 P.3d 40 (2003). Given this precedent, we will do the same because neither party in this case argues otherwise.
Ineffective assistance of counsel claims—whether based on deficient performance or conflict of interest—involve mixed questions of fact and law. Boldridge, 289 Kan. at 622. We review the Van Cleave court’s underlying factual findings for support by substantial competent evidence and its legal conclusions based on those facts de novo. Boldridge, 289 Kan. at 622; Gonzales, 289 Kan. at 358-59.
In this case Cheatham alleges both deficient performance and conflicts of interest infected his trial. Claims of deficient performance may be analyzed differently than those based on conflict of interest. Galaviz, 296 Kan. at 177-78; State v. Gleason, 277 Kan. 624, 650, 88 P.3d 218 (2004) (citing Mickens v. Taylor, 535 U.S. 162, 168, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh. denied 535 U.S. 1074 [2002]). We consider first the deficient performance issues.
Deficient Performance
Cheatham argues his trial counsel’s deficient performance is demonstrated by Hawver’s: (1) failure to meet the American Bar Association (ABA) standards established for death penalty representation; (2) lack of preparation time; (3) ignorance of capital murder litigation, failure to associate with learned counsel, and failure to obtain necessary training; (4) failure to adequately investigate witnesses and evidence; (5) failure to file tire statutorily required notice of an alibi defense; and (6) introduction and discussion of Cheatham’s prior voluntary manslaughter conviction during voir dire and closing argument.
Standard of Review
In the deficient performance context, we have consistently said a criminal defendant must establish:
“(1) counsel’s performance was deficient, which means counsel made errors so serious that counsel’s performance was less than that guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense, which requires showing counsel’s errors were so serious they deprived defendant of a fair trial. Judicial scrutiny of counsel’s performance in a claim of ineffective assistance of counsel must be highly deferential. To show prejudice, the defendant must show a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” [Citations omitted.]’ ” Robertson v. State, 288 Kan. 217, 225, 201 P.3d 691 (2009) (quoting Haddock v. State, 282 Kan. 475, 512-13, 146 P.3d 187 [2006]).
This first prong requires a defendant to demonstrate counsel’s representation fell below an objective standard of reasonableness, considering the entire circumstances attendant to the case. Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). When applicable as it is in this case, one such circumstance is recognition that the allegedly deficient performance occurred in the context of a death penalty case. Nonetheless, judicial scrutiny of counsel’s performance must be highly deferential and must make every effort to “eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” 283 Kan. at 90. We indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable assistance. 283 Kan. at 90.
As to the second prong, this court has repeatedly indicated that under Strickland the defendant must show prejudice by establishing a reasonable probability that the result would have been different without the deficient performance. And by this, tire Court has explained that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. We have accepted this guidepost in our prior caselaw. Bledsoe, 283 Kan. at 90; accord Edgar v. State, 294 Kan. 828, 838, 283 P.3d 152 (2012); Gonzales, 289 Kan. at 358; Robertson, 288 Kan. at 225. The Strickland Court further described this inquiry as follows:
“An ineffective assistance claim asseits the absence of one of the crucial assurances that the result of the proceeding is rehable, so finality concerns are somewhat weaker and tire appropriate standard of prejudice should be somewhat lower. The result of the proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” (Emphasis added.) 466 U.S. at 694.
In another portion of the Strickland decision, the Court explained: “[T]he defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” (Emphasis added.) 466 U.S. at 687.
With this as the framework for our review, we consider each of Cheatham’s deficient performance arguments next.
ABA Guidelines
Throughout his brief, Cheatham argues the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) establish standards for an attorney defending a death penalty case, and that Hawver did not meet those standards. Cheatham then asserts his ineffective assistance of counsel claim premised on the failure to comply with the ABA Guidelines and the argument that a failure to meet the ABA Guidelines amounts to deficient performance. We do not agree.
Ineffective assistance of counsel does not turn on what is “prudent or appropriate, but only what is constitutionally compelled.” United States v. Cronic, 466 U.S. 648, 665, n.38, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (A defendant may “make out a claim of ineffective assistance only by pointing to specific errors made by trial counsel.”). The United States Supreme Court has held that prevailing norms of practice as reflected in the ABA standards are “guides to determining what is reasonable, but they are only guides.” (Emphasis added.) Strickland, 466 U.S. at 688.
Without weighing in on the wisdom or propriety of following the ABA Guidelines, we decline to hold that they are coextensive with constitutional requirements. A failure to comply with the ABA criteria may be relevant in an evaluation into whether counsel’s performance fell below an objective standard of reasonableness, but such failure is simply one circumstance to be considered—it is not by itself determinative. We summarize the ABA Guidelines relevant to Cheatham’s arguments next, but in doing so we focus on the particular requirements to defend Cheatham’s case and whether any failure to fulfill those requirements led to specific trial errors.
(1) Hawvers lack of preparation time
Cheatham claims Hawver’s representation was deficient because he did not reduce his workload in order to provide Cheatham with high-quality legal representation. He cites ABA Guideline 10.3, which states: “Counsel representing clients in death penalty cases should limit their caseloads to the level needed to provide each client with high quality legal representation in accordance with these Guidelines.” Similarly, Cheatham claims Hawver violated Guideline 6.1, which instructs agencies representing indigent clients to “implement effectual mechanisms to ensure that the workload of attorneys representing defendants in death penalty cases is maintained at a level that enables counsel to provide each client with high quality legal representation . . . .” Cheatham asserts that the typical attorney defending a capital case invests several thousand hours in the representation and argues the 200 total hours Hawver spent on Cheatham’s representation, which included trial time, fell woefully short.
The Van Cleave court held “there is no evidence trial counsel’s workload was unmanageable,” even though Hawver maintained a full-time law practice and was running for political office while simultaneously preparing for Cheatham’s trial. And it also declined to find error with Hawver’s strategy of going to trial just 4 months after being engaged to defend Cheatham in order to “put pressure on the prosecution.” The Van Cleave court found Hawver’s lack of preparation time was neither deficient nor prejudicial.
We cannot as easily dismiss the limited time Hawver devoted to Cheatham’s defense. This was a complex criminal trial by any measure, even before considering the added complications attendant to capital charges for murdering two people and attempting to murder a third. The State called 23 witnesses in its case-in-chief. But the limited time spent preparing for Cheatham’s defense does not amount to a violation of Cheatham’s right to effective counsel absent a showing of actual trial errors that prejudiced his defense. See Cronic, 466 U.S. at 666.
In Cronic, the defendant was indicted with two codefendants on federal mail fraud charges. His retained counsel withdrew shortly before the scheduled trial, and the court appointed a young real estate lawyer without any criminal law experience. The new lawyer was allowed only 25 days to prepare, in comparison to the 4½ years the Government had to investigate and prepare the case. Cronic’s counsel did not put on any defense other than cross-examining the Government’s witnesses, including the two codefendants who testified against Cronic.
The Supreme Court, reversing a decision by the Tenth Circuit Court of Appeals vacating the conviction, held that “[t]he right to the effective assistance of counsel is . . . the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” 466 U.S. at 656. And a defendant can “make out a claim of ineffective assistance only by pointing to spe cific errors made by trial counsel.” 466 U.S. at 666. It then upheld the conviction because no specific errors had infected the trial.
Although Hawver’s lack of preparation time is obvious, our case-law requires it to be tied to specific trial errors and not considered on its own to be ineffective assistance of counsel.
(2) Hawver’s ignorance of capital murder litigation, failure to associate with learned counsel, and failure to obtain necessary training
Similarly, Cheatham argues that capital defense litigation requires specialized knowledge and skill. He cites ABA Guideline 8.1, which instructs agencies responsible for approving appointments in capital cases to require attorneys seeldng appointment to complete a rigorous training program that includes, among other tilings, training in relevant state, federal, and international law. Cheatham asserts Hawver’s lack of death penalty experience infected Cheatham’s trial because Hawver otherwise: (1) would have understood his inherent conflict of interest; (2) would have understood his duty to assemble a defense team and adequately investigate or present an alibi defense; (3) would not have introduced the prejudicial prior voluntary manslaughter conviction; and (4) would not have been unfamiliar with life-qualifying or death-qualifying the jury.
The Van Cleave court agreed that Hawver’s representation was deficient because of his lack of experience in capital cases, stating:
“It never appears to have dawned on trial counsel to consult, much less affiliate, with other counsel for a capital case. He told Pat Scalia, of BIDS, that his client was indigent—in spite of a $50,000 fee. He never referred the case back to the Public Defender’s Office once the capital charge was added. He never consulted with the Public Defender’s Office or [BIDS] for any referral help or guidance in his, now, death penalty case. When contacted by Scalia and advised of the services available, trial counsel never took advantage of available services. Scalia states she thought there was a mistake, because she knew trial counsel was not on the list she maintained of death-qualified private counsel. He was not aware of the ABA Guidelines, which in an extensive format, were released in February 2003. (The first expansive ABA Guidelines were released in 1989.)”
The Van Cleave court went on to conclude that “[cjounsel appears to have been completely unaware and made no attempt, other than reading the law, to learn about handling a death penalty-case as a reasonably effective counsel.”-The court then conceded it was “greatly concerned with trial counsel’s approach.”
But the court again declined to find' Cheatham was prejudiced by this because, it said, Cheatham was simply speculating that Hawver’s inexperience was what caused him to devise a trial strategy, for example, involving the introduction of Cheatham’s prior conviction. It held further that Hawver’s unfamiliarity with life-qualifying or death-qualifying the juiy was not prejudicial to the guilt phase because Hawver was familiar with the facts, reports, and witnesses; and Hawver developed a plausible alternative theory for who committed the shooting.
Hawver’s own testimony confirms the Van Cleave court’s finding that his inexperience was problematic. During his deposition, Haw-ver testified:
“In truth, I should not have accepted tire case, given my lack of capital trial experience and tire unavailability of necessary funding, which I now understand is required [for] the preparation and trial of cases such as this one in which the client faces a possible death sentence.”
Hawver’s failure to familiarize himself with the requirements and resources available to assist with Cheatham’s defense is distressing, if not professionally irresponsible. And it flies in the face of common sense drat he so effortlessly dismissed the offer from the BIDS executive director to publicly provided assistance, which would have included furnishing cocounsel, investigators, consultants, and expert witnesses for his client’s defense.
But as stated above, we must consider this inexperience in the context of specific trial errors claimed under Strickland’s two-part test. Cronic, 466 U.S. at 666; Flynn v. State, 281 Kan. 1154, 1161, 136 P.3d 909 (2006); see also Woods v. Sinclair, 655 F.3d 886 (9th Cir. 2011), vacated on other grounds 132 S. Ct. 1819 (2012) (finding capital murder defendant’s attorneys inexperience and caseload “troubling,” but insufficient to establish ineffective assistance of counsel because defendant must point to “specific acts or omissions that may have resulted from counsel’s inexperience and other professional obligations”). We address the claimed trial errors next, except for the failure to life- or death-qualify the jury, which is unnecessary given our other holdings.
(3) Hawver s investigation of witnesses and evidence
Again beginning with the ABA Guidelines, Cheatham argues Hawver had a duly to obtain the investigative resources necessary to prepare for both phases of Cheatham’s trial and conduct a thorough and independent investigation into Cheatham’s guilt. He argues Hawver did not meet those minimum requirements, citing a host of omissions including that Hawver did not hire a private investigator, interview witnesses, or attempt to verify Cheatham’s alibi defense. The Van Cleave court declined to find most of these claimed errors amounted to ineffective assistance of counsel, finding instead the link between tírese failings and prejudice to Cheat-ham speculative.
The United States Supreme Court has discussed an attorney’s failure to investigate a client’s case on numerous occasions, including Strickland. In that case, the Court stated:
“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” (Emphasis added.) 466 U.S. at 690-91.
Cheatham argues Hawver did not initially make a reasonable decision that would render a more particular investigation unnecessary. And while we will revisit some of tírese assertions again in the context of Cheatham’s conflict of interest claim, we hold it is unnecessary to determine whether Hawver’s performance was deficient in this regard because Cheatham fails to articulate a specific prejudice to the alleged deficiencies. Instead, in his brief to this court, Cheatham twice alleges simply that “prejudice must be presumed” without citing any authority to support that assertion.
There are limited circumstances when prejudice is presumed. See Mickens, 535 U.S. at 166 (prejudice presumed if counsel has been actually or constructively denied during a critical stage of the proceeding); Galaviz, 296 Kan. at 177. But Cheatham has not alleged those circumstances, nor do we discern their applicability based on the record. Accordingly, we hold that Cheatham was required to demonstrate prejudice and failed to do so.
Alibi defense
The Van Cleave court found that Hawver’s failure to file the statutorily required notice of an alibi defense was deficient. It held this specific failure violated an objective standard of reasonableness because Cheatham’s ability to present an alibi defense was “cut short” by tire omission. But it held this error was not prejudicial because Cheatham’s own testimony presented his alibi defense to the juiy.
This court has previously held that counsel’s failure to file the statutorily required notice of an alibi defense was deficient and prejudicial when the defendant’s sole defense was alibi. State v. Thomas, 270 Kan. 17, 17, 11 P.3d 1171 (2000) (adopting the Court of Appeals opinion in State v. Thomas, 26 Kan. App. 2d 728, 731-32, 993 P.2d 1249 [1999]). In Thomas, the failure to file the notice prevented the defendant’s sister from vouching for defendant’s whereabouts when the crime occurred. The court held the sister’s testimony could have created reasonable doubt in light of weaknesses in the State’s case, even though she might have had a credibility problem because she was a family member. 26 Kan. App. 2d at 732.
We agree that Hawver’s failure to file the statutorily required notice was deficient under the facts of this case. But Cheatham again makes no specific argument of prejudice and again incorrectly argues that prejudice should be presumed. Our review of the facts confirms tire Van Cleave court’s holding that no prejudice followed this error.
As noted by the Van Cleave court, “diere is no one who can put the Defendant in Chicago, or on the way to Chicago on December 13, 2003, the date of these shootings.” The court then detailed the specifics regarding each of the three witnesses who could be considered alibi witnesses and how their testimony or lack of availa bility would not support Cheatham’s claims. In light of this evidence—or lack thereof—Cheatham has failed to establish prejudice. But in so deciding, we note the distinction between the failure to have these alibi witnesses available and Hawver s own potential to be an alibi witness, which is discussed in the conflict of interest section below.
Prior manslaughter conviction and inflammatory characterizations
Cheatham argues next that introduction of his prior voluntary manslaughter conviction, while simultaneously having his attorney repeatedly portray him to the jury as a “professional drug dealer” and “shooter of people,” constituted ineffective assistance of counsel. He argues any “strategy” for making these declarations was based upon Hawver s misunderstanding of the law or misguided perception of what constituted a proper trial strategy and was prejudicial to his defense. Hawver exposed the jury to this disparaging information in three ways.
First, during jury selection, he told potential jurors about Cheat-ham’s prior convictions for manslaughter and cocaine possession and then turned to Cheatham and had him verbally confirm these facts. Hawver then highlighted this disclosure by acknowledging that providing this damaging information “goes against all of the precepts of the average criminal defense lawyering [sic].” Second, during trial, Hawver had Cheatham describe in detail the shooting that led to the voluntary manslaughter conviction. This then opened the door for the State on cross-examination to show that Cheatham shot that victim four times—once in each arm and twice in the neck. The State was even able to show Cheatham an exhibit that displayed entry wounds to the victim, which was admitted without objection. Finally, during closing argument Hawver pointed out Cheatham’s conviction again, stating, “My client has lulled someone. My client is a dope dealer. My client is not a boy scout.” And after making these remarks, he said, “I know that it is almost asking some sort of superhuman fiction for you all to not take into account Phillip Cheatham’s background.”
Hawver did these things even though die State had offered before trial simply to stipulate that Cheatham was a convicted felon for the purposes of the criminal possession of a firearm charge so that tire jury would not know that Cheatham was previously convicted of voluntary manslaughter or the details of that crime. And Hawver agreed to the stipulation by indicating that the State would “memorialize it” for the court. But presumably sometime between that hearing and trial, Hawver had a change of heart and decided to introduce the prior conviction himself.
The State argues that informing the juiy of Cheatham’s prior voluntary manslaughter conviction was not deficient because it was part of a strategy to be honest with the jury. And, citing the Van Cleave court’s decision, the State speculates there was a possibility that Cheatham might have accidentally opened the door to this information while testifying in his own defense, so it was reasonable to share this information first. But the State also acknowledges “this strategy may . . . have been unusual.” And more importantly, the parties and the Van Cleave court accept that the evidence was otherwise inadmissible—absent Hawver’s decision to introduce it himself.
We agree die prior conviction would have been inadmissible during the guilt phase once the State took its relevance to the firearm charge off the table and conceded that admission of the crime’s details could be more prejudicial than probative. And while we are not called upon to decide an admissibility question under K.S.A. 60-455, we note that its protections extended to Cheatham’s case. The statute prohibited admission of prior crimes evidence for the purpose of proving a person’s disposition to commit another crime unless the evidence is used to prove some other material fact, which foe State’s stipulation made unnecessaiy.
The statute’s narrow rule is based upon recognition that prior crimes evidence can be more prejudicial than probative. See State v. Boggs, 287 Kan. 298, Syl. ¶ 2, 197 P.3d 441 (2008) (jury may exaggerate prior similar crimes as evidence that defendant likely committed current crime); State v. Clements, 241 Kan. 77, 84, 34 P.2d 1096 (1987) (prior crimes evidence cannot be used to infer defendant committed subsequent crime; evidence barred if its prejudice overbalances foe rational development of foe case); see also State v. Terrazas, 189 Ariz. 580, 584, 944 P.2d 1194 (1997) (introduction of prior bad acts can “easily ‘tip the balance against the defendant’ ”). The statute’s purpose against admitting prior conviction evidence to show propensity was upended by Hawver’s use of the voluntary manslaughter conviction at trial.
During the Van Cleave proceedings, Hawver gave conflicting explanations as to why he introduced details about the prior conviction. In a deposition prior to the evidentiary hearing, he testified that he informed the jury of the conviction because he believed the State would be able to introduce it during the guilt phase of trial because it was an aggravating factor the State would attempt to prove during the penalty phase. This misconception is evident by the following exchange:
“A. [Hawver]: Well, I made die decision that, in a sense, it was a capital case, and since the jury would be informed that he had done what he had to do in capital cases, unlawfully, feloniously, intentionally and with premeditation, kill more dian one person, that’s a capital murder requirement. Um, let’s see. Um, where he would be — it would be stated that he had committed a crime that would bring him into die capital realm, I thought it was better to explain to them what the deal was rather dian let them wonder what he had done.
“Q. [Cheadiam’s counsel]: And so if I understand you, please correct me if I misstate this, you understood that one of the aggravating factors that the state would attempt to prove if the penalty phase occurred was that Mr. Cheatham had on a prior occasion be convicted of this involuntary manslaughter?
“A. [Hawver]: I thought they would be able to do that during the guilt phase, the guilt phase.
“Q. [Cheatham’s counsel]: And can you tell me under what theoiy you believed that evidence of involuntary manslaughter would have been admissible in the first phase?
“A. [Hawver]: The fact that it was a capital case.
“A. [Hawver]: And in order to get a capital case, my understanding you have to have done something like that prior.
“Q. [Cheatham’s counsel]: All right. And so you believe that because they charged it as a capital case, that would give them the right to produce aggravatingfactors in the first phase of the trial?
“A. [Hawver]: Correct." (Emphasis added.)
Hawver then said he attempts to win cases by “telling the truth and letting the facts set, an understanding of the full scope of the presentation.”
This testimony supports Cheatham’s arguments on appeal because it suggests Hawver was confused or uninformed about the difference between the guilt and penalty phases of a capital murder trial. Our statute provides separate rules governing admission of evidence for these distinct phases in a capital murder case. See K.S.A. 21-4624(c) (any evidence the court deems probative may be received in the sentencing proceeding regardless of its admissibility under the rules of evidence). Had Hawver followed the State’s stipulation, Cheatham’s prior conviction would have been excluded during the guilt phase but admissible as an aggravating circumstance supporting a death sentence during the penalty phase, which would follow the jury’s determination as to guilt.
But Hawver’s testimony about why he disclosed the prior voluntary manslaughter conviction changed during the evidentiary hearing, so we must consider that complication as well. At the hearing, Cheatham’s Van Cleave counsel attempted to elicit the same testimony from Hawver as quoted above from his deposition. And consistent with that deposition, Hawver initially answered in the affirmative when asked whether he thought “the State, by right, were going to have to prove the aggravating circumstances against Mr. Cheatham in the first stage of the trial.” Then, Hawver modified his reasoning for ignoring the stipulation in the following exchange:
“Q. [Cheatham’s attorney]: So that meant your understanding of the capital sentencing and die capital murder statute diat you say you read, your understanding of that is that Mr. Cheatham, his manslaughter conviction was going to come in against him in the guilt/innocence phase of die trial, right?
“A. [Hawver]: I thought diere was a possibility diat the manslaughter conviction would come in during die first phase of the trial. That’s why I made the decision, vsith [Cheatham’s] concurrence . . . diat we ought to tell diem eveiydiing
Again attempting to elicit the testimony given during the deposition, Cheatham’s attorney asked Hawver whether he believed the State was going to admit the prior voluntary manslaughter conviction as part of the State’s aggravating factors in the guilt phase. And Hawver then responded, “No, I thought they would bootleg it in. I thought it would come in one way or the other.” (Emphasis added.)
In reaction to that new explanation, Cheatham’s attorney tried to impeach Hawver with the deposition transcript, but Hawver again modified his testimony by indicating he considered the aggravating factors to be the two murders and the repeated shooting, omitting from the list Cheatham’s prior conviction—the third aggravating factor in the State’s case for imposition of the death penalty. Hawver then testified that he “knew [he] had a right” to keep the voluntary manslaughter conviction out of the guilt phase, but he “thought it would come in somehow. I didn’t know how. I thought they would try to bootleg it in and be successful at doing so.” (Emphasis added.) Finally, Hawver reiterated his strategy of being honest and completely up-front with the juiy “so that they would believe [Cheatham].”
Now based primarily on Hawver’s deposition testimony, Cheat-ham argues that Hawver’s trial strategy was a misunderstanding of the law and therefore deficient. The State ignores Hawver’s deposition testimony and focuses on the testimony at the Van Cleave hearing that Hawver believed the State would bootleg the prior conviction into the guilt phase. And from that, the State argues Hawver did not pursue this strategy from a misunderstanding of the law.
The Van Cleave court did not resolve the conflicting testimony and seemingly accepted both of Hawver’s explanations because it found “[i]t is not clear why or how trial counsel believed ‘[tire conviction] would come in anyway.’ ” It further found Hawver “admits confusion about evidence in the guilt and penalty phases,” which refers to Cheatham’s argument that Hawver did not understand the State did not need to prove aggravating factors during the guilt phase. And the Van Cleave court also noted Hawver’s explanation that the State would attempt to bootleg the conviction into evidence but then held that “trial counsel was also aware that any testifying defendant runs the risk of ‘opening the door’ to prior conviction history.” Ultimately, the court characterized Hawver’s strategy as bold and risky and then twice repeated that it was not “per se deficient.”
We hold the Van Cleave court erred to tire extent it justified Hawver s actions as “strategy” based upon the risk that Cheatham would open the door through his own testimony because Hawver never asserted that as a reason. The Van Cleave court attributed this justification to Hawver absent evidence in the record. We also hold the Van Cleave court applied the wrong legal standard when it considered whether admitting the conviction was “per se” deficient. The issue for that court was whether voluntary disclosure of these particular facts surrounding tire prior conviction was deficient under the circumstances in this case. And we find that it was deficient because it was a highly risky gambit that, at worst, was based upon a misunderstanding of the law, or, at best, nonsensical as evidenced by the contradictory explanations.
The record supports tire Van Cleave court’s first finding that Hawver misunderstood the difference between the evidence admissible during the trial’s guilt and penalty phases. This is most evident through Hawver’s deposition testimony in which he explicitly said he believed the State would be permitted to introduce the prior conviction by virtue of this being a capital case.
Two of our prior decisions finding counsel’s misunderstanding of the law are analogous because those misunderstandings were similarly damaging to the defendant in some way. In State v. Logan, 236 Kan. 79, 689 P.2d 778 (1984), we held the defendant’s credibility was impaired by his attorney’s advice to admit on direct examination prior convictions involving dishonesty, which was based on an incorrect understanding of the law, because those admissions allowed the State to cross-examine him on a prior conviction for a similar crime. Similarly, in State v. Rice, 261 Kan. 567, 932 P.2d 981 (1997), applying Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984), this court held that counsel’s advice that the defendant not testify at trial was deficient because it was not based on a correct understanding of law or any justifiable strategic considerations. See also Wilkins v. State, 286 Kan. 971, 982, 190 P.3d 957 (2008) (stating the “[mjere invocation of the word ‘strategy’ does not insulate the performance of a criminal defendant’s lawyer from constitutional criticism”).
Noting that the Van Cleave court did not challenge the credibility of Hawver’s deposition testimony, we hold that Hawver’s performance was deficient because he mistakenly believed the State could introduce the prior voluntary manslaughter conviction because it was an aggravating factor for the penalty phase. That misguided plan was based on an obvious misunderstanding of the law, and it cannot be excused as justifiable trial strategy in this circumstance.
We further find Hawver’s second explanation that he was concerned the State might “bootleg” the conviction into evidence equally untenable. First, the State contacted Hawver, acknowledged that the prior conviction was inadmissible, and offered to stipulate that he had a prior felony for the purposes of the gun charge to avoid admitting the prior conviction. In doing so, the State made a sincere effort to follow the Kansas rules of evidence. It is mere speculation to argue this was some sort of prosecutorial bait-and-switch tactic. Second, Hawver admits the State risked a mistrial if it suddenly changed course during trial and attempted to admit the prior conviction. And third, while there is sometimes a risk that trial events will result in admission of prior convictions, any risk must be weighed against the potential prejudice that admitting a prior conviction for a similar crime has. We can find no justification in the record for assuming such a significant risk, which our statutes carefully seek to avoid, especially in light of tire surviving victim’s testimony identifying Cheatham as the shooter in this case.
Finally, the State argues that Cheatham consented to this defense approach, so Hawver should be relieved of responsibility for having chosen a deficient approach in the first place. But in Winter v. State, 210 Kan. 597, Syl. ¶ 2, 502 P.2d 733 (1972), this court held that technical and professional decisions that require training, skill, and specialized judgment must rest with the lawyer and that the lawyer, after consulting with tire client, has exclusive control over decisions as to what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions. See also Thompson v. State, 293 Kan. 704, 716, 270 P.3d 1089 (2011); Bledsoe, 283 Kan. at 92.
We hold that Hawver’s “strategic” decision to disclose damaging facts that did not need to be exposed was within tire exclusive province of trial counsel and the responsibility for such decisions that are not objectively reasonable cannot be passed off to the client or otherwise excused as the State argues. On this claim, Cheatham’s claim has much in common with Bledsoe. We hold the Van Cleave court erred by relying too heavily on deference to a trial “strategy” that on closer examination had no justifiable basis in reflection, research, or experience. Hawver’s actions in this regard were deficient, which leads us next to consider prejudice.
The Van Cleave court found Cheatham failed to establish prejudice resulted from disclosing this information because, it noted, Hawver specifically elicited a promise from potential jurors during voir dire that they would not consider it in deciding Cheatham’s guilt. And with respect to the voir dire specifically, the district court found no prejudice because all potential jurors who indicated any difficulty with the prior crimes information were removed from tire panel during the selection process. We disagree with the Van Cleave court’s conclusion that this excuses the deficient performance. These errors, standing alone, were so prejudicial they denied Cheatham his right to a fair trial.
Prior conviction evidence can be very damaging, especially in cases like this when there are similar crimes being charged. As we have previously explained, a jury may easily exaggerate the value of die prior crime and conclude because it is similar that the same defendant committed the one in question. Or, a jury might simply conclude the defendant deserves punishment because he was a wrongdoer in the past. Finally, the jury might conclude that because of the defendant’s past acts, the evidence on his behalf should not be believed. Rice, 261 Kan. at 594 (quoting State v. Peterson, 236 Kan. 821, 828, 696 P.2d 387 [1985]). This court has required reversal in some cases when the State introduces such evidence. See State v. Torres, 294 Kan. 135, 143-54, 273 P.3d 729 (2012) (reversible error when State introduced prior conviction for indecent liberties with a child at rape trial). See also Stone v. State, 17 S.W.3d 348, 352-53 (Tex. App. 2000) (no reasonably competent attorney would believe admitting prior murder conviction during examination of defendant at trial for drugs was sound trial strategy); People v. Ofunniyin, 114 A.D.2d 1045, 495 N.Y.S.2d 485 (1985) (reversible error where trial counsel, after securing exclusion of prior drug conviction, questioned defendant about it on direct examination).
Underscoring the magnitude of this disparaging information and its likely impact is Hawver’s closing argument during which he conceded that asking the jury to ignore Cheatham’s background when determining guilt required “some sort of superhuman fiction(Emphasis added.) We agree. And coupled with Hawver’s inflammatory characterizations of his own client to the jury, our confidence in the outcome of the jury’s verdict is shaken to its core. These particular errors cannot be excused and require a new trial.
Conflict of Interest
Cheatham next argues the fee agreement Hawver entered into with him demonstrates ineffective assistance of counsel because it fostered one or more conflicts of interest that adversely affected Hawver’s representation. Specifically, Cheatham claims the unwritten fee agreement was contingent on acquittal, which is per se unethical. In the alternative, Cheatham argues that if the fee agreement is viewed as a flat fee, the circumstances under which it was entered provided a financial disincentive for Hawver to actively investigate or promote Cheatham’s defense and further denied Cheatham the ability to use Hawver as a supporting alibi witness. In other words, Cheatham contends the alleged conflict of interest arose because Hawver’s personal or business interests were contrary to Cheatham’s and that conflict adversely affected Hawver’s representation of Cheatham.
What test governs Cheathams claim?
We begin by addressing what test governs Cheatham’s claim. We conclude that Cheatham has alleged a conflict of interest and apply the “Sullivan standard” announced in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). To apply that test in order to address the parties’ arguments, we must determine: (1) what type of fee agreement Hawver and Cheatham entered; (2) whether it created a conflict of interest; and (3) whether that conflict adversely affected Hawver’s performance.
The district court viewed this question differently as relating only to deficient performance and found the fee agreement deficient. Using the ABA Guidelines as the prevailing norms, the Van Cleave court concluded: “It is clear [Hawver] was not aware of, and did not follow, the ABA Guidelines regarding fees in this matter.” And having made that determination, the district court then considered whether that failing—characterized as a deficient performance claim—prejudiced Cheatham. The district court concluded he'was not prejudiced, stating:
“The Defendant does not offer any evidence as to how die Defendant was prejudiced by this deficiency. The Defendant’s position appears to be that because die ABA Guideline was not met, diere is prejudice. Trial counsel was familiar with die facts, witnesses and reports in this case. He was able to develop and present a plausible alternative theory as to who committed these shootings. The Court finds that the Defendant has not shown that there is a reasonable probability that, but for any error regarding the fee structure in this case, the outcome of the guilt phase would have been any different.” (Emphasis added.)
We must determine whether the Van Cleave court used the appropriate test because as discussed below the United States Supreme Court has held that at least some ineffective assistance of counsel claims based on a conflict of interest are determined using a different standard than those alleging deficient performance. Strickland, 466 U.S. at 692; Boldridge, 289 Kan. at 622-23; State v. Gleason, 277 Kan. 624, 650, 88 P.3d 218 (2004). We address first whether the Strickland standard should apply to this claim.
When the defendant alleges conflicts of interest arising from multiple concurrent representations and there was no trial objection, the United States Supreme Court has held that a criminal defendant must establish: (1) the existence of an actual conflict of interest between attorney and client; and (2) that the established conflict adversely affected the adequacy of the attorney’s representation. Sullivan, 446 U.S. at 348-49; Mickens v. Taylor, 535 U.S. 162, 168, 152 L. Ed. 2d 291, 122 S. Ct. 1237, reh. denied 535 U.S. 1074 (2002) (citing Sullivan); see also Boldridge, 289 Kan. at 622-23; Gleason, 277 Kan. at 644-45. But in Mickens, the United States Supreme Court left open whether tire Sullivan rule applies when the conflict alleged does not involve multiple concurrent representations.
In Mickens, the defendant alleged a conflict of interest based upon a successive representation. The Court applied the Sullivan standard in Mickens because “[t]he case was presented and argued on the assumption that (absent some exception for failure to inquire) Sullivan would be applicable.” 535 U.S. at 174. And it noted that the parties’ assumption that Sullivan applies was not unreasonable given tire federal Court of Appeals’ unblinking application of it to all kinds of alleged attorney conflicts, including when the representation implicates counsel’s personal or financial interests. 535 U.S. at 174 (citing United States v. Hearst, 638 F.2d 1190, 1193 [9th Cir. 1980]).
But the Mickens Court warned future litigants that the language and rationale underlying Sullivan does not necessarily support its application to other types of conflict of interest claims. And it held it was an open question whether “Sullivan should be extended to [successive representation] cases.” Mickens, 535 U.S. at 174-76; see also Schwab v. Crosby, 451 F.3d 1308, 1324 (11th Cir. 2006) (Application of the Sullivan rule outside of concurrent, multiple representation cases is not clearly established under Supreme Court decisions.).
Applying Mickens, our court recently summarized the framework for addressing a conflict of interest claim in State v. Galaviz, 296 Kan. at 183-84. Galaviz involved a successive representation claim, and this court noted that Mickens left open whether successive, personal, or financial interest claims were governed by the Sullivan standard. See Galaviz, 296 Kan. at 184 (discussing the “Mickens reservation”). Like the Mickens Court before it, this court in Galaviz did not decide the question, opting instead to use the “more lenient” adverse effect, standard advocated by the parties. We held:
“We need not determine whether the adverse effect exception is the appropriate exception to be applied post-Mickens to successive representation situations because in this case the State does not argue any other test should be applied. Furthermore, like Mickens, in theory, Galaviz benefitted from this treatment by not being required to meet the more difficult Strickland test that requires a showing that counsel’s performance resulted in prejudice, which is determined by examining whether tire deficient conduct affected the outcome of the proceeding. [Citation omitted.]" Galaviz, 296 Kan. at 192.
The State has argued that we should apply the adverse effect test to Cheatham’s alleged conflict of interest claims, and we will do so for the same reasons cited in Galaviz. And on that basis, we conclude the Van Cleave court erred by reviewing this claim solely under the Strickland standards. Accordingly, we must determine whether the district court’s failure to address whether a conflict of interest actually existed under the facts as outlined above requires us to remand the case for review under the appropriate standard.
We faced a similar problem in Gleason and Jenkins when the ineffective assistance allegations were based upon a claimed conflict of interest that was not considered by the trial court. We found in both that we had sufficient evidence to make the necessary legal determinations under our standard of review and remand would serve no useful purpose. Gleason, 277 Kan. at 649-50; State v. Jenkins, 257 Kan. 1074, 1080, 898 P.2d 1121 (1995).
And as with Gleason and Jenkins, we have carefully reviewed the Van Cleave court’s decision and the case record. We have determined that all facts necessary for resolution of Cheatham’s conflict of interest arguments are contained in the record before us, and many necessary findings were made by the Van Cleave court in its Strickland analysis. Therefore, we hold that remand would serve no useful purpose.
We consider next whether Cheatham has demonstrated ineffectiveness based upon a conflict of interest that adversely affected the adequacy of Hawver’s representation in this case. We rule that he has.
What type of fee agreement governed Hawvers representation of Cheatham?
As noted above, the evidence conflicted whether the fee was contingent on Cheatham being acquitted. In his affidavit, Hawver swore under oath that the fee arrangement with Cheatham was contingent on acquittal. But in a later deposition, also taken under oath, Hawver disavowed that statement, and attempted to explain away the affidavit as simply a document drafted by Cheatham’s appellate counsel.
Notably, Hawver also acknowledged that an ethics complaint was pending against him with the Officé of Disciplinary Administrator as a result of the earlier affidavit because contingent fee agreements under these circumstances are prohibited. KRPC 1.5(f)(2) (2011 Kan. Ct. R. Annot. 471-72) (“A lawyer shall not enter into an arrangement for, charge, or collect... a contingent fee for representing a defendant in a criminal case.”).
At the Van Cleave hearing, Hawver repeated his denial that the fee agreement was contingent on Cheatham’s acquittal. He insisted the engagement was for a flat fee and declared that Cheatham still owed him the $50,000. And faced with these inconsistencies in Hawver’s sworn testimony, the Van Cleave court found: “The likely answer is that there was no contingency fee arrangement.” Later in its decision, the court with more certainty stated: “There is no evidence of a contingency fee agreement. The only evidence is that trial counsel would represent [Cheatham] for $50,000.” (Emphasis added.)
These findings contradict themselves. On the one hand, the Van Cleave court speculates about how the conflict in evidence should be resolved; while on the other hand, the district court declaratively states there is “no evidence” whatsoever of any contingent fee arrangement. This latter finding cannot be correct because the affidavit stated that an unwritten contingent fee agreement existed and that one of its provisions was that $50,000 would be due “if [Cheat-ham] was found not guilty on the charges.”'
Our first question consequently is whether there is substantial competent evidence to support the Van Cleave court’s factual finding that there was not a contingency fee arrangement. See Ferguson v. State, 276 Kan. 428, 445, 78 P.3d 40 (2003) (district court’s fact findings regarding an ineffective assistance of counsel claim must have substantial support- in the evidence). And as to this, despite the inherent contradiction in the district court’s discussion about the fee agreement, we hold the record supports the Van Cleave court’s finding that Hawver entered into a flat fee agreement with Cheatham.
Put simply, Hawver gave conflicting testimony and the Van Cleave court believed one version. The district court’s factual determination that there was a flat fee agreement is supported by substantial competent evidence. This resolves Cheatham’s first issue with the fee arrangement in the State’s favor. But that does not put to rest the conflict claim.
Did the flat fee agreement create a conflict that adversely affected Hawver s performance?
As an alternative to his contingent fee arguments, Cheatham contends the fee agreement, if viewed as a flat fee, provided a financial disincentive for Hawver to fully investigate or prepare Cheatham’s defense under the circumstances of the case. Two questions must be answered to resolve this claim: (1) Did this fee agreement create a conflict of interest? and (2) If so, did that conflict of interest adversely affect the adequacy of Cheatham’s representation? Mickens, 535 U.S. at 168; Gleason, 277 Kan. at 650. The Seventh Circuit Court of Appeals has said:
“An actual conflict of interest exists if ‘tlie defense attorney was required to make a choice advancing his own interests to the detriment of his client’s interests.’ Stoia 1, 22 F.3d at 771 (quoting United States v. Ziegenhagen, 890 F.2d 937, 939 [7th Cir.1989]). Such a conflict has an adverse effect if ‘but for the attorney’s actual conflict of interest, there is “a [reasonable] likelihood that counsel’s performance somehow would have been different.” ’ Id. (quoting Frazer v. United States, 18 F.3d 778, 787 [9th Cir.1994] [Beezer, J., concurring]).” Stoia v. United States, 109 F.3d 392, 395 (7th Cir. 1997).
In Winkler v. Keane, 7 F.3d 304 (2d Cir. 1993), a case-cited by Cheatham, the Second Circuit. Court of Appeals considered a case in which trial counsel entered into a contingency fee agreement with his client. Winkler argued.the fee agreement created an actual conflict of interest “because Winkler’s interests in effective representation were pitted against trial coimsel’s monetary interest.” 7 F.3d at 307. The Court of Appeals, agreeing with Winkler’s ar gument, drew upon Justice Marshall’s opinion concurring and dissenting in Sullivan for the proposition that
“[a]n attorney has an actual, as opposed to a potential, conflict of interest when, during the course of the representation, the attorney’s and defendant’s interests ‘diverge with respect to a material factual or legal issue or to a course of action.’ [Citation omitted.]” Winkler, 7 F.3d at 307.
Cheatham also points to the ABA Guidelines in support of his argument that the fee agreement in this case was improper. These guidelines unequivocally disapprove of flat fees in death penalty cases, stating:
“The express disapproval of flat or fixed fee compensation provisions and statutory fee máximums is new to this edition. The provision is in keeping with Guideline 10.1(A) of the original edition, which mandates that counsel be fully compensated at a reasonable hourly rate of compensation, and follows the commentary to Standard 5-2.4 of the ABA Standards for Criminal Justice: Providing Defense Services, which observes that ‘[t]he possible effect of such rates is to discourage lawyers from doing more than what is minimally necessary to qualify for the flat payment.’ ” (Emphasis added.) ABA Guideline 9.1, History of the Guideline.
In other words, the Guidelines unequivocally disapprove of flat fees in death penalty cases precisely because such fee arrangements pit tire client’s interests against the lawyer’s interest in doing no “more than what is minimally necessary to qualify for the flat payment.” In this capital case, in which Cheatham faced the death penalty, the fee agreement entered between Hawver and Cheat-ham undoubtedly fostered a conflict of interest. And the circumstances in this case were even more pronounced when, as here, there was little likelihood of any payment because Cheatham was indigent, which Hawver knew.
As Cheatham argues, Hawver was no more likely to be paid if Cheatham were convicted than he would have been under a forbidden contingent fee agreement because Cheatham was indigent. On the other hand, tire incentive to obtain a total acquittal was absent. And there can be little doubt that, under the fee agreement Hawver and Cheatham entered, Hawver’s and Cheatham’s interests diverged. Hawver, a solo practitioner with a “high volume” law practice requiring near daily court appearances, would have little financial incentive to invest the significant time commitment a cap ital case requires. On the contrary, his incentive would have been to pay attention to those cases whose billable hours were more likely to produce actual income. Hawver even concedes this point by testifying that he told Cheatham he was not going to be concentrating full-time on this case because “[he] had to earn a living.”
Accordingly, we must determine whether this conflict adversely affected the adequacy of Hawver’s performance. Cheatham maintains the financial disincentive under which Hawver labored was illustrated by his failure to adequately investigate and prepare the case and by his failure to withdraw and serve as an alibi witness for Cheatham. We agree.
Hawver estimated he spent around 200 hours in defense of Cheatham. This is appallingly low for a death penalty case defense and even more stunning when all but 60 of those hours, as Hawver testified, were spent in trial. In addition, Hawver failed to retain an investigator or to assemble a defense team to adequately present Cheatham’s case due to an unwillingness to invest the resources this would take. As a result, potential defense witnesses were never interviewed and possible leads, such as an unexplained foot print at the crime scene, were never pursued. Hawver admitted openly that he had no intention of spending his own funds to prepare the case and no intention of taking time away from his other cases or his political activities. Hawver obviously realized the questionable nature of his inattention because he had Cheatham acknowledge it in writing. In sum, Hawver’s representation bore a greater resemblance to a personal hobby engaged in for diversion rather than an occupation that carried with it a responsibility for zealous advocacy.
Hawver also failed to make himself available as an alibi witness for Cheatham by serving as his counsel. Cheatham notes that if called to testify, Hawver would have explained that on the day before the murders, Hawver had advised Cheatham to leave town because Hawver believed the police were looking for an excuse to arrest Cheatham. Similarly, Cheatham would have testified that he followed his counsel’s advice and left for Chicago on the afternoon of December 13. And Hawver most certainly could have provided a measure of credibility to Cheatham’s claim that he was in or on his way to Chicago at the time of the murders by taking the stand and recounting to the jury how he had advised Cheatham to get out of town. But that line of testimony was foreclosed because Hawver was serving as trial counsel.
Even so, Hawver attempted during closing argument to present this evidence by stating, “Now when I first got this case, I got a call from Phillip Cheatham in Chicago—” but* the State objected before he could finish because Hawver’s argument was beyond the scope of admitted evidence. Clearly, Hawver. recognized too late the contribution his testimony could have brought- to the defense and attempted unsuccessfully to present it. But becoming an alibi witness would have required him to withdraw from the representation and forego any claim to a fee or the public attention garnered from serving as trial counsel in a double homicide trial.
We hold that under the circumstances presented the fee arrangement in this death penalty case created a conflict of interest for Hawver that adversely affected the representation of Cheatham in multiple respects. And we hold further that it is not necessary for Cheatham to show that he was actually prejudiced by Hawver’s failure to adequately pursue his defense or withdraw and provide alibi support. Cheatham’s convictions, therefore, must be reversed and the case remanded for a new trial.
Reversed and remanded.
Robert W. Fairchild, District Judge, assigned. | [
48,
-22,
69,
-49,
28,
96,
56,
56,
-108,
-29,
-27,
115,
77,
-49,
65,
57,
18,
93,
85,
105,
-44,
-73,
39,
-31,
-78,
-77,
-7,
-122,
-77,
-21,
-18,
-98,
72,
32,
-54,
-51,
102,
10,
-63,
90,
-82,
0,
-119,
-10,
90,
-111,
48,
110,
12,
7,
37,
-34,
-77,
58,
31,
-57,
76,
44,
91,
-81,
80,
-111,
-106,
-123,
94,
20,
-77,
6,
-68,
6,
88,
46,
-104,
-71,
1,
-7,
56,
-108,
2,
-44,
111,
-119,
12,
-26,
66,
33,
16,
-51,
-76,
-116,
46,
126,
-97,
-89,
-103,
121,
67,
13,
-74,
-1,
115,
54,
46,
108,
-1,
94,
25,
108,
9,
-97,
-76,
-77,
-118,
52,
-106,
-5,
-21,
-119,
-128,
101,
-52,
-22,
76,
-11,
81,
-37,
-117,
-108
] |
The opinion of the court was delivered by
Johnson, J.:
Lester Lawson appeals his convictions and sentences on two counts of aggravated criminal sodomy of a child less than 14 years of age, in violation of K.S.A. 21-3506(a)(l). Lawson raises four issues in this appeal, claiming that (1) his right to counsel under the federal and state constitutions was violated when he was interrogated without his attorney being present and the resulting statements were admitted at trial; (2) the district court’s failure to instruct the jury on the essential element of the defendant’s age resulted in constitutional and statutory violations that require the imposition of a grid sentence; (3) the district court erroneously imposed a mandatory minimum sentence of 28 years; and (4) he should be parole eligible after 20 years, pursuant to K.S.A. 22-3717(b)(2). Finding that law enforcement officers denied Lawson his statutory right to the assistance of counsel at a critical stage of the proceedings, we reverse and remand for a new trial.
Factual and Procedural Overview
For a period of time during 2006-2007, Lawson and his wife had Brian Kennedy living in their home, together with Kennedy’s girlfriend and her two children, K.L. (a girl) and J.L. (a boy). By March 4, 2008, Kennedy, his girlfriend, and her children had moved into their own house, which the Federal Bureau of Investigation (FBI) searched on that date as part of an investigation into Internet child pornography. Child pornography was found on Kennedy’s computer, and the children were interviewed at the police station. J.L. said that Kennedy had performed oral and anal sex with him, which eventually led to Kennedy’s conviction for that conduct. But during the interviews, after talking with K.L., J.L. eventually made the same allegation against Lawson, i.e., that Lawson had oral and anal sex with him at Lawson’s house.
Lawson was arrested that same day. After being advised of his Miranda rights, Lawson denied having sex with J.L. and offered that K.L. might be making up the accusations because she was jealous of Lawson’s positive relationship with J.L. The State charged Lawson with two counts of aggravated criminal sodomy with a child under 14 years old, and the court conducted a first appearance on March 10, 2008. Apparently, there is no transcript of the first appearance hearing, but the judge’s notes suggest that a defense attorney, Michael Mogenson, was present on behalf of Lawson. Further, at 10:50 a.m. that day, Lawson’s application for court-appointed counsel was filed of record.
The following day, March 11, Officer James Bridges took Lawson from his jail cell and transported him to the Leavenworth Police Department. Lawson would later say that he drought that the officer, dressed in coat and tie, was his court-appointed attorney, and Officer Bridges would assert that he was unaware that Lawson had an attorney. At the police station, Officer Bridges gave Lawson oral and written Miranda warnings and Lawson signed the bottom of the waiver form. Then, the officer conducted a polygraph examination and interview. During the interrogation, Lawson admitted to sexual contact with J.L. on multiple occasions in 2007, including one instance in which J.L. had performed oral sodomy on Lawson.
In June 2008, Lawson’s attorney filed a motion requesting a competency determination. Lawson was sent to Larned State Hospital, where doctors found him competent to stand trial. But the examination report noted that Lawson’s intellectual functioning was “within the low average range,” that he was “an individual with poor judgment capability,” and that he showed a low average “ability to abstract information.”
Lawson’s attorney challenged the admissibility of Lawson’s un-counseled statements that were given during the polygraph examination and interview, which the State originally intended to use for rebuttal purposes only. The State’s announcement on tire morning of trial, May 4, 2009, that it intended to use the statements in its case-in-chief prompted the court to conduct a Jackson v. Denno admissibility hearing before the trial commenced. At that hearing, the State presented Officer Bridges’ testimony and the Miranda rights waiver form. The court ruled that Lawson’s statements were admissible but that the State could not allow the jury to know that they were obtained in connection with a polygraph examination.
The district court’s jury instructions failed to advise the jury that it would have to find that Lawson was over 18 years of age. But Lawson did not object to that omission. The evidence elicited at trial included several references to Lawson’s age, including testimony that he was 39 years old on March 4, 2008, the date on which he was taken into custody.
The jury convicted Lawson on both counts of aggravated criminal sodomy with a child under 14 years of age under K.S.A. 21-3506(a)(1). Pursuant to Jessica’s Law, under K.S.A. 21-4643(a)(1)(D), each conviction for aggravated criminal sodomy “shall be sentenced to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years.” The court ordered that the life sentences were to be served concurrently but inexplicably declared that Lawson should not be parole eligible for 28 years. Lawson perfected his appeal of the convictions and sentences.
The parties originally argued the case before this court on April 11, 2012. In June 2012, the matter was set for reargument on October 3, 2012, and the parties were directed to submit supplemental briefs focusing principally on the effect of K.S.A. 22-4503(a) on the suppression issue.
Denial of Defendant’s Motion to Suppress Polygraphed Statement
Standard of Review
An appellate court reviews the district court’s decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the district court’s findings are reviewed to determine whether they are supported by substantial competent evidence. Then the ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007). When the facts material to a trial court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008).
Analysis
On the morning of trial, May 4, 2009, the trial court, noting that the State had changed its position about offering Lawson’s polygraph interview statements in its case-in-chief, hastily called a Jackson v. Denno hearing to determine the admissibility of the statements. See Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). After hearing the testimony of Officer Bridges and viewing a copy of the Miranda waiver form, the district court ruled that the statements were admissible. The trial judge commented that he thought there was a bright-line rule that once a defendant had an attorney, there could be no questioning without consent. But then the court stated that it had looked at some cases which held that statements taken without the benefit of existing counsel were not automatically excluded “as long as there is a clear and thorough review of the right to remain silent.” The only cases mentioned by the district court in making its ruling on the morning of trial were “tire Edward case versus Arizona” and “State versus Pursley, 238 Kan. 253.”
Actually, with respect to a person’s right to counsel under the Sixth Amendment to the Constitution of the United States, as applied to the states through the Fourteenth Amendment, the district court’s first thoughts were correct. A bright-line rule did exist. On the date of Lawson’s trial, Michigan v. Jackson, 475 U.S. 625, 634-36, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986), was still good law with respect to applying the holding from Edwards v. Arizona, 451 U.S. 477, 484-87, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), to a Sixth Amendment challenge to the admissibility of a confession. Jackson clearly stated: “We thus hold that, if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of tire defendant’s right to counsel for that police-initiated interrogation is invalid.” 475 U.S. at 636.
Regardless of Mogenson’s role in the first appearance, Lawson definitely asserted his right to counsel at a court proceeding when he submitted an application for court-appointed counsel at the first appearance. The police initiated its interrogation of Lawson the day after he asserted his right to counsel. It did not matter under Jacksons rule whether Officer Bridges knew of that prior assertion when he initiated the polygraph interrogation, because “[o]ne set of state actors (the police) may not claim ignorance of defendants’ unequivocal request for counsel to another state actor (the court).” Jackson, 475 U.S. at 634. Accordingly, the trial court was simply wrong in its belief that the caselaw at that time allowed a law enforcement officer to initiate an uncounseled interrogation after a defendant had invoked the right to counsel at a court hearing. Jackson did not say that a violation of a defendant’s Sixth Amendment right to counsel was excused if the officer was clear and thorough in explaining the defendant’s Fifth Amendment right to remain silent. To the contrary, no waiver was possible under Jackson without the assistance of counsel. Prior Kansas cases, such as State v. Pursley, 238 Kan. 253, 710 P.2d 1231 (1985), simply could not override that federal constitutional protection. See State v. Scott, 286 Kan. 54, Syl. ¶ 25, 183 P.3d 801(2008) (Article VI of United States Constitution makes United States Supreme Court’s interpretations of that Constitution controlling upon state courts).
Shortly after Lawson’s trial, the United States Supreme Court jettisoned its longstanding rule from Jackson. Montejo v. Louisiana, 556 U.S. 778, 797, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009) (“Michigan v. Jackson should be and now is overruled.”). Montejo not only held that it is possible for a defendant who 'is represented by counsel to waive his or her Sixth Amendment right to the assistance of that attorney without consultation, but that the waiver could be accomplished through the defendant’s waiver of Miranda rights. Interestingly, the Montejo majority acknowledged that a Miranda waiver is a relinquishment of the Fifth Amendment right to remain silent, not the Sixth Amendment right to counsel. But the majority opined:
“It is true, as Montejo points out in his supplemental brief, that the doctrine established by Miranda and Edwards is designed to protect Fifth Amendment, not Sixth Amendment, rights. But that is irrelevant. What matters is that these cases, like Jackson, protect tire right to have counsel during custodial interrogation—which right happens to be guaranteed (once the adversary judicial process has begun) by two sources of law. Since the right under both sources is waived using the same procedure, [citation omitted], doctrines ensuring voluntariness of tire Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment waiver.” 556 U.S. at 795.
The State argues that Montejo is the “controlling case” on Lawson’s suppression issue, albeit that case was decided after the district court’s ruling in this case. But cf. State v. Berry, 292 Kan. 493, 514, 254 P.3d 1276 (2011) (general rule that change in law applies to cases pending on direct review). The State describes Montejo’s holdings as follows:
“The U.S. Supreme Court held in Montejo that a defendant may waive the right to counsel for tire purpose of a custodial interrogation, even if they are represented by counsel at tire time of the law enforcement interview. Additionally, the defendant need not be counseled in advance regarding their right to counsel in order to determine whether drey want to waive that right. Finally, the U.S. Supreme Court held' that Miranda warnings are sufficient to advise a defendant of their right to counsel and a defendant’s waiver after Miranda warnings will be considered to be a knowing and intelligent waiver.”
Lawson’s initial brief conceded that the Kansas Supreme Court is bound by Montejo’s interpretation of the Sixth Amendment, notwithstanding his belief that the majority opinion in that case was poorly reasoned and wrongly decided. Consequently, Lawson pointed us to our state constitution, specifically § 10 of the Kansas Constitution Bill of Rights, which provides, in relevant part, that “[i]n all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel.” Lawson argues that we should independently interpret our state constitution as fully protecting and preserving the right to counsel that Kansas citizens have possessed and relied upon for at least the quarter-century since Jackson. That course of action is certainly possible. This court has the authority to construe Kansas constitutional provisions independently of the manner in which federal courts interpret corresponding provisions of the United States Constitution, and we are free to interpret our state law in a manner that will “impose greater restrictions on police activity than those the [United States Su preme Court] holds to be necessary upon federal constitutional standards.” See State v. Morris, 255 Kan. 964, 981, 880 P.2d 1244 (1994) (citing to Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 43 L. Ed. 2d 570 [1975]).
But, at least for the past half-century, this court has generally adopted the United States Supreme Court’s interpretation of corresponding federal constitutional provisions as the meaning of the Kansas Constitution, notwithstanding any textual, historical, or jurisprudential differences. See Monnat & Nichols, The Loneliness of the Kansas Constitution, 34 J. Kan. Ass’n Just. 10 (Sept. 2010). But see State v. McDaniel & Owens, 228 Kan. 172, 184-85, 612 P.2d 1231 (1980) (independently interpreting § 9 of the Kansas Constitution Bill of Rights). Recent cases have not provided an expanded rationale for not performing an independent analysis of the Kansas Constitution, relating simply that “we have not traditionally done so.” See State v. Scott, 265 Kan. 1, 5, 961 P.2d 667 (1998) (citing Murphy v. Nelson, 260 Kan. 589, 597, 921 P.2d 1225 [1996]); see also State v. Scott, 286 Kan. 54, 93, 183 P.3d 801 (2008) (relating State’s argument against our independent analysis of § 9 of Kansas Constitution Bill of Rights as “it has not traditionally done so”). Other cases have phrased the rationale as “this court has never extended greater protection to our citizens beyond the federal guarantees.” State v. Spain, 269 Kan. 54, 59, 4 P.3d 621 (2000) (citing State v. Schultz, 252 Kan. 819, 826, 850 P.2d 818 [1993]).
Earlier, some-mention was made of the aim to “achieve a consistency so that [the state constitution] shall not be taken to mean one thing at one time and another thing at another time.” State v. Nelson, 210 Kan. 439, 445, 502 P.2d 841 (1972). Of course, this case would be the prime example of why tire wholesale, automatic adoption of federal constitutional jurisprudence does not produce such desired stability in the law for Kansans. The federal jurisprudence appears to ebb and flow on the tide of political influence. See Monnat & Nichols, 34 J. Kan; Ass’n Just., p. 14 n.20 (United States Supreme Court has overruled prior authority in over 200 cases; with relatively recent Rehnquist Court alone accounting for over 40 overruling opinions). Likewise, allowing the federal courts to interpret the Kansas Constitution seems inconsistent with the notion of state sovereignty.
Nevertheless, this court does not always forgo its right to independently construe our own constitution, regardless of what we may have said to the contrary. In McDaniel, 228 Kan. 172, Syl. ¶ 10, the Kansas Supreme Court declared that “Section 9 of the Kansas [Constitution] Bill of Rights may be invoked against an excessive or disproportionate sentence,” and that “[t]he nature of a sentence as cruel or unusual encompasses duration.” That declaration was significant because a then-recent United States Supreme Court decision, Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980), had held that state appellate courts were “not required by the 8th Amendment to question the length of prison sentences.” McDaniel, 228 Kan. at 184. In other words, McDaniel found that a disproportionately long prison term could violate the Kansas Constitution, even though it would not violate the federal constitution at that particular time.
The McDaniel court related that “[t]he Rummel decision is important here because the Kansas Supreme Court has heretofore adopted a disproportionality analysis in response to United States Supreme Court decisions.” McDaniel, 228 Kan. at 181. The court explained that, as early as 1890, the decisions of this state had suggested that § 9 of the Kansas Constitution Bill of Rights did not include a proportionality component, but rather the state constitutional prohibition related to the kind of punishment inflicted, not to its duration. 228 Kan. at 181. The Kansas Supreme Court first recognized a basis for reviewing an alleged disproportionate sentence in State v. Coutcher, 198 Kan. 282, 287, 424 P.2d 865 (1967), and ultimately fully embraced the concept in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978). Relying heavily on federal precedent, Freeman devised “three techniques” to aid in administering the principle of disproportionality. See McDaniel, 228 Kan. at 183-84. Shortly thereafter, in Rummel, the United States Supreme Court “[retreated] from the philosophy which spawned the three techniques recited in Freeman.” McDaniel, 228 Kan. at 184. But the Kansas Supreme Court refused to join in that federal retreat, declaring that “[t]he techniques applied in Freeman will continue to guide our [state] constitutional inquiry.” McDaniel, 228 Kan. at 185. In other words, having followed the United States Supreme Court into the clearing, the Kansas Supreme Court refused to follow the higher Court’s dive back into the forest. That scenario resembles the case before us.
Lawson argues that we should again refuse to join the federal court in retreating from established individual rights and adopt the Jackson philosophy as Kansas constitutional law. He relies heavily on Justice Stevens’ dissent in Montejo for the reasons that we should find that an invocation of the right to counsel under our state constitution cannot be subsequently waived through an un-counseled waiver of Miranda rights. Those reasons lean heavily on the differences between the Sixth Amendment right to counsel and the Fifth Amendment right to remain silent with respect to the protections that are to be afforded, the purposes to be accomplished, and the manner in which each right may be waived. Recently, in State v. Appleby, 289 Kan. 1017, 1044-50, 221 P.3d 525 (2009), we discussed the differences between invoking one’s right to counsel for Fifth Amendment purposes and requesting an attorney for Sixth Amendment purposes. For instance, Fifth Amendment rights may not be anticipatorily asserted and only arise when affirmatively asserted during a custodial interrogation, albeit after assertion, all questioning on all matters must cease. The Sixth Amendment right to counsel attaches only after a prosecution has been commenced and it is offense-specific, allowing for the questioning of a represented defendant on unrelated crimes.
However, the right to counsel in Kansas is not only guaranteed by our federal and state constitutions, but rather the Kansas Legislature has specifically codified the right to the assistance of counsel in this state. Our current statute speaking to the entitlement of a defendant to the assistance of counsel is set forth in K.S.A. 22-4503, which provides in relevant part:
“(a) A defendant charged by the state of Kansas in a complaint, information or indictment with any felony is entitled to have the assistance of counsel at every stage of the proceedings against such defendant....
“(b) If such a defendant appears before any court without counsel to assist and conduct the defendant’s defense, it shall be the duty of the court to inform the defendant that such defendant is entitled to counsel and that counsel will be appointed to represent the defendant if the defendant is not financially able to employ an attorney. The court shall give the defendant an opportunity to employ counsel of the defendant’s own choosing if tire defendant states the defendant is able to do so. If the defendant asks to consult with counsel of the defendant’s own choosing, the defendant shall be given a reasonable opportunity to do so.
“(c) If it is determined that the defendant is not able to employ counsel, as provided in K.S.A. 22-4504 and amendments thereto, the court shall appoint an attorney from die panel for indigents’ defense services or otherwise in accordance with the applicable system for providing legal defense services for indigent persons prescribed by tire state board of indigents’ defense services for the county or judicial district. A record of the proceedings provided for by this section shall be entered in the journal, and any order binding the defendant for trial or directing further detention upon the charge and the journal entry of trial and judgment shall recite the substance of such proceedings.
“(d) Counsel employed by or appointed for the defendant shall have free access to tire defendant at all times for the purpose of conferring with the defendant relative to the charge, for advising the defendant respecting the defendant’s plea and for the preparation of the defense, if a defense is to be made. It is the duty of an attorney appointed by the court to represent a defendant, without charge to such defendant, to inform the defendant fully of the crime charged against the defendant and the penalty therefor, and in all respects fully and fairly to represent the defendant in the action.”
We need not decide today whether the right to counsel described in K.S.A. 22-4503 is constitutionally required by the right to counsel provision in § 10 of the Kansas Constitution Bill of Rights. Where a right to counsel is provided by statute, tire denial of that right can result in a reversal. Cf. Kargus v. State, 284 Kan. 908, 916, 169 P.3d 307 (2007) (statutory right to counsel includes right to effective assistance of counsel). Here, Lawson was “charged by the state of Kansas in a complaint, information or indictment with [a] felony,” and, therefore, he was “entitled to have the assistance of counsel at every stage of the proceedings against [him].” K.S.A. 22-4503(a).
The State argues that the stages of the proceedings covered by the statutory right to counsel clearly refers to the “courtroom process rather than outside of the courtroom.” For support, it cites to State v. Roach, 223 Kan. 732, 76 P.2d 1082 (1978). There, during the course of the criminal trial, the parties agreed that the defendant would submit to a polygraph examination, and the trial was recessed for that purpose. Defense counsel was not present for the polygraph examination, but the defendant was advised of his Miranda rights. On appeal, this court determined that the polygraph examination was not a critical stage of the proceedings and that the defendant had effectively waived counsel during the examination. 223 Kan. at 737-38.
Roach is difficult to square with the court’s decision 3 years earlier in State v. McCorgary, 218 Kan. 358, 543 P.2d 952 (1975). McCorgary had been charged with murder, appointed an attorney, and placed in a jail cell with a police informer who had agreed to obtain information for the police about the murder, including the whereabouts of the victim’s body. En route to reversing the conviction based upon the erroneous admission of the informant’s testimony, McCorgary clarified that a criminal prosecution is commenced upon the filing of a complaint and issuance of a warrant; it declared that “[ajfter a criminal prosecution has been commenced a defendant is as much entitled to aid of counsel as at the trial itself . . . and then it quoted the statutory entitlement to counsel language from K.S.A. 22-4503. 218 Kan. at 361. Obviously, the McCorgary court construed the “every stage of the proceedings” language in K.S.A. 22-4503 to include activities outside the courtroom, i.e., in the jailhouse. More to the point here, Mc-Corgary specifically said that “[a] police officer seeking information under similar circumstances would be required to inform the accused of his right to counsel and not proceed further until the accused knowingly and voluntarily waived such right.” 218 Kan. at 363.
McCorgary appears to have been more in step with the long history of the right to counsel in this state. Shortly after statehood, Kansas codified the right to counsel, as follows:
"If any person, about to be arraigned upon an indictment or information for a felony, be without counsel to conduct his defense, and be unable to employ any, it shall be the duty of the court to assign him counsel, at his request, not exceeding two, who shall have free access to the prisoner, at all reasonable hours.” G.S. 1868, ch. 82, sec. 160.
Early Kansas cases interpreted this right to mean that a person is entitled to counsel “ ‘at every step and stage of the prosecution.’ ” State v. Oberst, 127 Kan. 412, 417, 273 P. 490 (1928); State v. Moore, 61 Kan. 732, 735, 60 P. 748 (1900). The right was not “ limited to proceedings at and subsequent to the impaneling of the jury’ ” but also gave a defendant who was “ Imprisoned and awaiting action by the grand jury . . . [the] right to a private interview with counsel.’ ” Oberst, 127 Kan. at 417-18 (quoting Moore, 61 Kan. at 734-35).
But perhaps we need look no further than Montejo, which the State argues should control our decision. Even the majority in Montejo accepted as undisputed that “the Sixth Amendment guarantees a defendant the right to have counsel present at all ‘critical’ stages of the criminal proceedings,” and that “[interrogation by the State is such a stage.” 556 U.S. at 786. Although a state is permitted to expand or broaden the rights of its citizens beyond that which is required by the United States Constitution, a state may not deny, restrict, narrow, or interfere with any of the federally guaranteed constitutional rights. Given that the State-initiated polygraph examination and interview of Lawson was a critical stage of his criminal proceedings for Sixth Amendment purposes, we hold that it was likewise a stage of the criminal proceedings for purposes of his entitlement to the assistance of counsel pursuant to K.S.A. 22-4503.
But determining that K.S.A. 22-4503 entitled Lawson to the assistance of counsel at his polygraph interview does not resolve the dispositive question of whether that statutory right may be effectively waived through a Fifth Amendment Miranda rights waiver. To resolve that inquiry, we return to the history of our statutory right.
In 1941, the language of the right to counsel statute was expanded:
“If any person about to be arraigned upon an indictment or information for any offense against the laws of this state be without counsel to conduct his defense, it shall be the duty of the court to inform him that he is entitled to counsel, and to give him an opportunity to employ counsel of his own choosing, if he states that he is able and willing to do so. If he does ask to consult counsel of his own choosing, the court shall permit him to do so, if such counsel is within the territorial jurisdiction of the court. If he is not able and willing to employ counsel, and does not ask to consult counsel of his own choosing, the court shall appoint counsel to represent him, unless he states in writing that he does not want counsel to represent him and the court shall find that the appointment of counsel over his objection will not be to his advantage. A record of such proceeding shall be made by the court reporter, which shall be transcribed and reduced to writing by the reporter, who shall certify to the correctness of such transcript, and such transcript shall be filed and made a part of the files in the cause. The substance of the proceedings provided for herein shall be entered of record in tire journal and shall be incorporated in the journal entry of trial and judgment.” (Emphasis added.) G.S. 1935, 62-1304 (1941 Supp.).
Significantly, the statute required that a waiver of counsel must be stated in writing by the defendant and that the court had to make a finding that appointing an attorney over the defendant’s objection would not be to the defendant’s advantage. Moreover, the court reporter was to make a record of the waiver proceedings; to transcribe that record; to certify to the correctness of the transcription; and to file the transcript in the case file. Further, the substance of the waiver proceedings was to be recorded in the court journal and incorporated in the journal entiy of the trial and judgment.
In 1969, the initial version of the current statute, K.S.A. 22-4503, was enacted, and it did not contain the prior language about the waiver procedure. See L. 1969, ch. 291, sec. 3. About the same time, however, the legislature passed K.S.A. 22-3426 dealing with the record of criminal judgment and the form and content of the journal entiy. See L. 1970, ch. 129, sec. 22-3426. That separate statute requires some of tire same information formerly contained in the 1941 right to counsel statute. Specifically, the journal of the court is required to contain “a statement that the defendant was duly represented by counsel naming such counsel, or a statement that the defendant has stated in writing that the defendant did not want representation of counsel.” K.S.A. 22-3426(a). Moreover, “[i]t shall be the duty of the court personally to examine the journal entry and to sign the same.” K.S.A. 22-3426(e).
Even after the enactment of K.S.A. 22-4503, this court has indicated “that a trial court must make more than1 a routine inquiry to determine if a waiver of the right to counsel was knowingly and intelligently made.” State v. Martin, 241 Kan. 732, 737, 740 P.2d 577 (1987) (citing to State v. Daniels, 2 Kan. App. 2d 603, 607, 586 P.2d 50 [1978]). Martin cited Daniels for the minimum stan dards of inquiry for the trial court judge to determine whether the defendant’s waiver of counsel was an intentional waiver of a known right, made with full awareness of its effect: '
“The ABA Standards Relating To the Function of the Trial Judge, § 6.6 at 84, 85 (Approved Draft, 1972), suggest the trial judge’s inquiry show that the defendant:
‘(i) has been clearly advised of his right to the assistance of counsel, including his right to die assignment of counsel when he is so entided;
‘(ii) possesses the intelligence and capacity to appreciate the consequences of tiiis decision; and
'(in) comprehends the nature of the charges and proceedings, die range of permissible punishments, and any additional facts essential to a broad understanding of the case.’
“To that, we would suggest that the trial judge also inform die defendant (1) that defendant-will be held to the same standards as a lawyer; (2) that the trial judge may not aid the defendant in his defense; and (3) that it is advisable to have a lawyer due to the specialized knowledge necessary to conduct a trial and the fact that a lawyer is trained in the law.” Daniels, 2 Kan. App. 2d at 607-08.
See In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 209, 708 P.2d 977 (1985); State v. Williams, 226 Kan. 82, 83-84, 595 P.2d 1104 (1979).
Under that paradigm, we would hold that a defendant’s un-counseled confession to a judge, via a plea of guilty, would be invalid unless the defendant had waived his or her right to counsel on the record after being given appropriate warnings by the court and after the court had assured itself that the waiver was knowingly and intelligently made and then caused all of that to be made a matter of record. We should not require anything less for an out-of-court, in-the-police-station confession to a law enforcement officer where the waiver of the defendant’s statutory entitlement to the assistance of existing counsel is required. In other words, after the statutory right to counsel has attached, the defendant’s un-counseled waiver of that right will not be valid unless it is made in writing and on the record in open court. A Miranda rights waiver form, addressing the defendant’s Fifth Amendment right to remain silent, simply cannot be an adequate substitute for the waiver procedure we require of our learned trial judges.
In so holding, we are not unmindful of prior opinions of this court that arguably support tire State’s position. For instance, State v. Pursley, 238 Kan. 253, 710 P.2d 1231 (1985), upon which tire district court relied, allowed the district court to admit Pursley s confession to law enforcement officers, notwithstanding the officers’ knowledge that Pursley’s attorney was en route to the police station at the time of the confession. In addition to being decided the year before Michigan v. Jackson, 475 U.S. 625, 634-35, 106 S. Ct. 1404, 89 L. Ed. 2d 63 (1986), the case was curiously based on a finding of substantial competent evidence to support the trial court’s holding in a Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), hearing, notwithstanding the opinion’s prefatory declaration that the defendant “does not challenge the voluntariness of his confession,” 238 Kan. at 263, which is the whole point of a Jackson v. Denno admissibility hearing. Nevertheless, Pursley simply did not consider the defendant’s statutory entitlement to the assistance of counsel which must be enforced against the State notwithstanding the vagaries of federal constitutional jurisprudence.
Accordingly, we find that the district court erred in refusing to suppress the uncounseled statement Lawson made during the police-initiated interrogation after Lawson had invoked his right to tire assistance of counsel under K.S.A. 22-4503. Neither the testimony of Officer Bridges nor the Miranda rights waiver form were sufficient evidence to establish that Lawson knowingly and intelligently waived his statutory entitlement to the assistance of counsel.
Consequently, Lawson’s convictions must be reversed and remanded for a new trial. Given this result, we need not address Lawson’s sentencing issues, except to note that the trial court’s curious imposition of a “hard-28” life sentence did not comport with the statutory scheme. See State v. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 (2010) (illegal sentence includes sentence that does not conform to statutory provisions with respect to character or term of authorized punishment).
Reversed and remanded.
Nuss, CJ., Luckert, and Biles, JJ., concurring in the result. | [
17,
-18,
-3,
62,
26,
99,
74,
88,
83,
-93,
99,
115,
-81,
-54,
0,
123,
-37,
-17,
84,
97,
-47,
-9,
55,
-64,
-78,
-13,
-7,
-35,
-73,
94,
-20,
29,
12,
112,
-102,
-11,
102,
-54,
-23,
86,
-118,
7,
-104,
-1,
80,
10,
36,
35,
90,
14,
53,
-98,
-9,
72,
28,
-46,
104,
40,
-37,
61,
-64,
-48,
27,
-99,
-51,
20,
-77,
52,
-68,
5,
120,
38,
-40,
-79,
0,
-24,
-77,
-90,
-122,
116,
79,
-117,
40,
102,
98,
32,
93,
-25,
-83,
-55,
-113,
-98,
-75,
-90,
-102,
24,
104,
100,
-74,
-3,
116,
84,
47,
124,
-29,
68,
23,
100,
-118,
-117,
-108,
-127,
-51,
120,
30,
56,
-5,
5,
0,
117,
-49,
-96,
76,
87,
56,
-9,
-114,
-77
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied
50 Kan. App. 2d. 838 | [
23,
-21,
-19,
60,
-116,
-95,
1,
30,
1,
-77,
117,
83,
-17,
-46,
4,
123,
-34,
111,
49,
122,
-53,
-74,
127,
72,
82,
91,
-37,
-35,
-7,
111,
-16,
-112,
76,
-8,
-118,
87,
-62,
-54,
-115,
88,
-100,
4,
-103,
-52,
17,
-101,
56,
-29,
122,
7,
17,
-123,
-13,
40,
26,
-31,
-127,
108,
-53,
-67,
-39,
-7,
-71,
-107,
-4,
20,
-96,
20,
-100,
1,
80,
126,
-112,
-112,
33,
-24,
114,
38,
-122,
116,
3,
-103,
-91,
108,
98,
34,
40,
-19,
100,
-82,
14,
28,
-115,
-90,
-45,
8,
107,
25,
-106,
-99,
121,
22,
15,
-2,
107,
-124,
79,
108,
-118,
-1,
-16,
-77,
9,
57,
12,
-111,
-17,
-108,
-112,
49,
-33,
-16,
78,
-41,
49,
-101,
118,
-80
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Granted in part; summarily vacated in part; remanded to Ct. of App.
Unpublished | [
-80,
105,
-36,
28,
-86,
-96,
50,
-98,
82,
-113,
39,
83,
-81,
-102,
20,
25,
-10,
111,
84,
123,
-2,
-79,
127,
3,
-48,
-109,
-101,
-35,
-15,
-18,
-2,
-102,
76,
-96,
-110,
-107,
68,
-119,
-17,
80,
-114,
-123,
-88,
77,
-15,
65,
52,
51,
120,
15,
49,
-42,
-29,
46,
25,
81,
-56,
44,
-5,
-75,
81,
-7,
-66,
5,
121,
70,
-93,
21,
28,
-53,
88,
110,
-112,
48,
33,
-24,
114,
52,
-126,
116,
75,
-69,
-88,
34,
96,
16,
117,
-9,
-76,
-72,
6,
14,
63,
-10,
-45,
105,
72,
97,
-98,
-3,
117,
22,
47,
-2,
-21,
-99,
93,
110,
30,
-50,
-44,
-77,
15,
124,
-116,
3,
-25,
-77,
48,
52,
-44,
-76,
88,
-26,
29,
51,
-42,
-34
] |
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, G. Thomas Williams, of Overland Park, an attorney admitted to the practice of law in Kansas in 1982.
On September 25, 2014, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed a motion for additional time to file answer on October 16, 2014, which was granted by order dated October 20, 2014, and filed an answer on October 27, 2014. On January 7, 2015, the parties entered into written stipulations of facts. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on January 15, 2015, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.3 (2014 Kan. Ct. R. Annot. 475) (diligence); 1.4(a) (2014 Kan. Ct. R. Annot. 495) (communication); 8.4(c) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct involving misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); 8.4(g) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law); 8.1(a) (2014 Kan. Ct. R. Annot. 670) (false statement in connection with disciplinary matter); and Kansas Supreme Court Rule 207(b) (2014 Kan. Ct. R. Annot. 342) (failure to cooperate in disciplinary investigation).
Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“Findings of Fad
“9. J.S. worked for the United States Postal Service for many years. She worked hard, saved her money, and was able to take early retirement at age 56. Commerce Brokerage Services, Inc., erred in reclassifying the funds from her thrift savings account, and J.S. suffered unexpected serious tax liability.
“10. On March 29, 2012, J.S. met with the respondent. He agreed to represent her. On March 30, 2012, the respondent sent J.S. a contingency fee agreement. On April 4,2012, J.S. signed and returned the agreement to the respondent.
“11. From time to time, J.S. called the respondent’s office to find out the status of the representation. Each time J.S. called, except once, the respondent was unavailable. J.S. left messages for the respondent. The one time J.S. was able to speak to the respondent, the respondent told J.S. that he had not heard back from Commerce Brokerage Services, Inc. The respondent promised to pull her file and get back with her. The respondent never communicated with J.S. again.
“12. On August 1, 2013, J.S.’s husband, M.S., called the respondent’s office. He identified himself only by his first name. The receptionist connected M.S.’s call to the respondent. The respondent told M.S. that he would be mailing out legal papers for J.S. to sign and return. J.S. never received any papers from the respondent.
“13. Approximately 2 weeks later, J.S. called the respondent and left a message on his voicemail asking about the legal papers the respondent promised to send. The respondent failed to return the call.
“14. On November 19,2013, J. S. wrote to the respondent inquiring about the status of her case and asking to speak with him. The respondent received the letter but did not respond to it.
“15. On December 30, 2013, J.S. filed a complaint against the respondent with the disciplinary administrator’s office. On January 2, 2014, Ms. Hughes sent the respondent a copy of J.S.’s complaint to the respondent and directed that he provide a -written response to the complaint within 20 days.
“16. On January 30,2014, the respondent provided a written response to J.S.’s complaint to the disciplinary administrator’s office. The respondent’s letter provided, in pertinent part, as follows:
‘From the date of our meeting, I spoke with [J.S.] several times, and her husband once, letting her know I was still reviewing her file. Upon the completion of my review, I sent her the attached letter dated April 3,2013, and never heard from her again. I closed my file and did not think anything of the matter, as my documents were copies and she possessed the originals, or a duplicate set of copies.’
The letter that the respondent purported to have written and sent to J.S. on April 3, 2013, provides as follows:
T am writing to inform you that I am no longer interested in representing you in die above matter. My reasons are as follows:
1. The documents I have reviewed provide questionable liability, at best, against the defendant in this case, as they clearly state you are responsible for your tax advice.
2. I am very busy and do not care to continue widi this case.
‘This is not a statement that you have no case at law, in fact I do not pass judgment on that issue, just drat I do not wish to represent you. If you wish to continue this matter, you should seek the counsel of another attorney, being mindful of your statute of limitations. You are hereby released from my fee agreement with no financial responsibility on your part. Should you wish copies or originals of your files, please contact my office.’
During the disciplinary investigation, the respondent told the attorney assigned to investigate J.S.’s complaint that he had mailed the April 3, 2013, letter. This statement was false.
“17. J.S. did not receive tire April 3, 2013, letter, because despite tire respondent’s statements to the investigating attorney and in his letter to tire disciplinary administrator, the respondent did not send the April 3, 2013, letter. Rather, tire respondent fabricated tire letter for purposes of the disciplinary investigation. [Footnote: The disciplinary administrator determined that tire name of the respondent’s law firm, as of April 3, 2013, was different than what appeared on tire letterhead of tire April 3, 2013, letter. In fact, the firm name that appeared on the letterhead of that letter did not exist on April 3, 2013; it came into existence several months thereafter, evincing that the letter was created well after April 3, 2013.]
“18. During the disciplinary investigation, the respondent provided a copy of the file he maintained in connection with his representation of J.S. In the materials provided to the disciplinary administrator was a copy of a handwritten note which purported to reflect a telephone conversation between the respondent and Steven Mathews, an employee in the compliance department of Commerce Brokerage Services, Inc. The respondent’s note was dated April 3, 2013, and included the following statements:
‘TC Steven Mathews Commerce
No mention of tax
said “I want all the $” ignored tax advice
told her to get tax counsel/advice’
“19. On March 19, 2014, Ms. Hughes wrote to the respondent, directed the respondent to submit to a statement under oath, and directed the respondent to provide certain items. Specifically, Ms. Hughes directed the respondent bring:
‘2. Electronic copies of any and all documents you or a member of your support staff created in [J.S.’s] matter, including the letter dated April 3, 2013, that you provided to this office in response to [J.S.’s] complaint,
a. These documents are to be produced in their native format, i.e., the format in which they are stored and used in tire normal course of business with the metadata showing the electronic history of each document, including the dates the document was created, modified, and/ or printed intact and accessible. This request includes all electronically stored documents, whether stored in current, back-up, or archived computer files.’
“20. On April 8, 2014, Ms. Hughes and Terry Morgan, special investigator with the disciplinary administrator’s office traveled to the respondent’s office to take the respondent’s sworn statement and the respondent’s administrative assistant’s sworn statement. During the respondent’s sworn statement, the respondent testified that he could not locate the April 3, 2013, letter in an electronic form. Thereafter, the respondent offered false testimony regarding how the letter was created, as follows:
Q. (BY MS. HUGHES) Showing you now what’s been marked as Exhibit No. 2 and ask you if you can identify that?
‘A. It’s a letter dated April 3, 2013, from me to [J.S.], Lansing, Kansas.
‘Q. And, again, the initials at the bottom are what?
‘A. The same as the other, GTW colon SW.
‘Q. Does that mean that Shirley Whitney typed that letter?
‘A. That’s what it indicates.
‘Q. Is it possible you typed the letter and put her initials on it?
‘A. I don’t believe so.
‘Q. And was this letter created on or about April 3 of 2013?
‘A. Again, documents are created sometimes the day before—you know, they might be done on a Friday, mailed Monday inadvertently, and that land of thing, or done after hours. It’s within a day or two. It’s within one day postage-wise. And I believe the program updates the date if you reprint the letter, so it’s within a day or two of April 3rd.
‘MR. MORGAN: The date the letter was typed would be the date on this letter, is that correct, April 3rd?
‘THE WITNESS: My understanding is that the program automatically'— that she’s set up the program to automatically produce the date that the letter is printed.
‘MR. MORGAN: Thank you.
‘THE WITNESS: But there’s—that’s my understanding.
‘Q. (BY MS. HUGHES) Do you recall the circumstances surrounding this letter? What caused you to create this letter for [J.S.]?
‘A. Well, I think it speaks for itself.
‘Q. You were terminating any representation. Is that a fair assessment?
‘A. That’s the intent—the overall intent.
‘Q. Did you produce an electronic copy of this document on the disc Ms. Whitney provided us?
‘A. She said she couldn’t find it.
‘Q. And I’ll represent to you that I loaded the disc, pulled it up and that letter is not on there.
‘A. I understand.
‘Q. Is that consistent with your understanding from her?
‘A. She said it wasn’t on the computer. She didn’t—she did a search and couldn’t find it. It wasn’t misfiled, to her knowledge. She just couldn’t find that letter—
‘Q. Okay.
‘A. —is what she told me.
‘Q. (BY MS. HUGHES) Did you check your computer in case you had typed this letter to see if you had saved—
‘A. I wouldn’t type it on my—you know, my computer.
‘Q. You’re confident you did not type this letter?
‘A. Correct.’
“21. On September 25, 2014, Ms. Hughes filed a formal complaint in the instant case. In the formal complaint, Ms. Hughes alleged that the respondent fabricated the April 3, 2013, letter and the respondent fabricated tire notes which purported to represent a telephone conversation he had with Mr. Matthews. On October 27, 2014, the respondent filed an answer to tire formal complaint. In his answer, the respondent admitted to fabricating the letter and note for purposes of tire disciplinary investigation. Thereafter, on January 7, 2015, the disciplinary administrator and tire respondent entered into a written stipulation. In the written stipulation, the respondent again admitted to fabricating the letter and notes.
“22. Despite his answer and the written stipulation, during the hearing on the formal complaint, the respondent did not admit that he fabricated tire April 3, 2013, letter, and note after receiving the disciplinary complaint. Rather, regarding the letter, tire respondent testified as follows:
‘Q. Mr. Williams, is it your testimony here today flrat tíre April 3, 2013, letter was already drafted and existed in your file when the disciplinary complaint came in, the letter to [J.S.]?
‘A. The way that it worked was this, that—my assistant’s name is Shirley. Okay. That I had drafted a letter that was in the file in draft form.
‘Q. What do you mean “draft form”?
‘A. Well, our office uses—and they’re old school, I don’t know why they do this—they have a printed letterhead. Okay. Eveiybody else in the 20th Century or 21st Centuiy now that I know of uses a letterhead that’s generated by a word processor. And I drafted a disengagement letter and apparently it never got sent.
‘Q. But it was actually typed?
‘A. Correct.
‘Q. And existed?
‘A. Right.
‘Q. But it hasn’t been sent?
‘A. I don’t think it was, no.
‘Q. In the electronically stored documents you provided for [J.S.’s] file that was not in there, was it?
‘A. I don’t believe so.
‘Q. But it had been—it’s your testimony that it had been created, though, and it should have been saved; is that a fair statement?
‘A. You have to understand that—that not everything gets saved that’s ever produced in the system. And, yes, of course, it should have been saved. And, yes, of course, it should have been there. But it had happened in my office before that letters had been sent and generated and no saved copy existed. In other words, they’re on the system, but they were never saved in tire file, in the computer file that was called [J.S.] file. And so I had seen that before and, no, the letter never got saved.
‘Q. This is the first time you’ve shared this story that the letter had existed— had already been drafted and existed in the file with our office, the Disciplinary Administrator’s Office; is that a fair statement?
‘A. I don’t know what’s been stated by Mr. Ambrosio. I drought he’d offered that statement before. I think the point of my response was—
‘Q. Let me ask it—I want the answer to my question. You had not told—you, I’nr not asking what Mr. Ambrosio told us. You had not told the Disciplinary Administrator’s Office this that the file—that that letter existed in your file, it had been drafted, but just had never been sent, you have never told drat to this office, other than what I’m hearing here today?
‘A. I don’t believe so, no.
‘Q. And it wasn’t in your answer that you filed in response to the complaint?
‘A. No. I wasn’t completely forthright.’
And, regarding dre note, dre respondent testified, as follows:
‘Q. I’d ask you to look at Exhibit 13, tire document at page—Bates stamp page 110. You’ve talked about the April 3, 2013, letter and the circumstances surrounding that, but you have not addressed tíris note. What is this document that’s Page 110?
‘A. It’s a photocopy of a handwritten note in my file.
‘Q. And this was also not—this was fabricated, you didn’t have a conversation with Mr. Williams—with Mr. Steve Matthews at Commerce on April 3, 2013?
‘A. No. I spoke to somebody else. I spoke to somebody in their compliance department. This is a cryptic note to myself and I should have removed it from the file that’s my mistake. I think if I had an attorney who would have bothered to look at it, he would have told me to do that.
‘Q. To remove this from your file?
‘A. It’s misleading. It’s a cryptic note to myself. I don’t keep complete notes. When I was in a law firm where I had to interact with other attorneys I kept better notes. But now I sometimes will write TC on a note pad where I don’t actually speak to a person or whatever. This was a misstatement and a misrepresentation to you because that’s not what happened. I didn’t speak to him. I spoke to somebody in Commerce compliance department. When I was downtown we represented Commerce Bank and I know they have a compliance department and I spoke to somebody there. So this note was not an accurate representation of what occurred in terms of that phone call.
‘Q. This note purports to document what somebody said. I’m looking at the second note. It says, said, quote, I want all the—and then it’s a money symbol, I think, dollar symbol, closed quote. Do you see that on there?
‘A. Correct.
‘Q. And that appears to me to be somebody telling you what [J.S.] said?
‘A. No, it’s what [J.S.] told me.
‘Q. Said I want all the money?
‘A. Yeah.
‘Q. Ignored tax advice, what’s that mean—
‘A. That—
‘Q. —on there?
‘A. That—it’s a note that means that she has a tax obligation and—independent of Commerce Bank and that—that Commerce—she did not engage Commerce Bank for the purpose of rendering tax advice, she had a CPA that offered her tax advice. And that was a note I made to myself regarding some of the substance issues of the file.
‘Q. So tírese four notes under TC, Steven Matthews, Commerce, are not documentation of a conversation with Steven Matthews at Commerce?
‘A. Correct.
‘Q. They’re not documentation of a conversation with anybody?
‘A. No. They’re notes to myself. Again, it’s cryptic and taken in context they’re—and I should have either offered an explanation for those or not submitted it, but you asked me for the full file, I believe.
‘Q. You didn’t submit this to our office in an effort to mislead us into believing that you had actually spoken to Steven Matthews at Commerce Bank?
A. No. My misrepresentation was regarding the letter, it wasn’t about this note. And I apologize for that. That was never my intent to tell you that I spoke—but that was my—I wrote that down because that’s who I intended to call and I ended up talking to somebody in compliance and saying my name is Tom Williams, I want to ask about investment and the process that your investment people go through. I spoke to somebody else and I didn’t write down who it was. I don’t know who it was. It was just somebody in the compliance department.’
“23. The respondent provided five statements regarding the April 3, 2013, letter—(1) the statement in his initial response, (2) the testimony provided during the sworn statement, (3) the respondent’s answer, (4) the written stipulation entered by the parties, and (5) the testimony provided during the hearing on tire formal complaint. The respondent’s statements regarding the April 3, 2013, letter are inconsistent. After weighing all the evidence presented by both parties, the hearing panel concludes that the respondent’s admissions in his answer to the formal complaint and the written stipulation are consistent with tire other evidence presented to the hearing panel; while tire respondent’s initial response and sworn testimony are not consistent with the other evidence. Thus, the hearing panel concludes that the respondent’s statements in his initial response as well as in his testimony both during the sworn statement and the hearing on tire formal were self-serving and false.
“24. Additionally, the respondent provided three statements regarding the April 3, 2013, note that purport to reflect a telephone conversation between the respondent and Mr. Mathews: the respondent’s answer, the written stipulation, and the respondent’s testimony during the hearing on tire formal complaint. Again, the hearing panel finds the respondent’s statements to be inconsistent. And, again, tire hearing panel concludes that the respondent’s admissions made in his answer and tire statements in the written stipulation are consistent with the other evidence presented regarding tire April 3, 2013, note. As such, the hearing panel concludes that the respondent’s testimony before the hearing panel was false.
“Conclusions of Law
“25. Based upon tire findings of fact, the hearing panel concludes as a matter of law that tire respondent violated KRPC 1.3, KRPC 1.4, KRPC 8.1, KRPC 8.4(c), KRPC 8.4(d), KRPC 8.4(g), and Kan. Sup. Ct. R. 207, as detailed below.
“KRPC 1.3
“26. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to diligently and promptly represent J.S. when he failed to take any action on her behalf to accomplish the purpose for which he was retained. Because the respondent failed to act with reasonable diligence and promptness in representing his client, the hearing panel concludes that the respondent violated KRPC 1.3.
“KRPC 1.4
“27. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the respondent violated KRPC 1.4(a) when he failed to return J.S.’s telephone calls and when he failed to respond to J.S.’s email messages. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.4(a).
“KRPC 8.4(c)
“28. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The respondent engaged in conduct that involved dishonesty when he fabricated tlie April 3, 2013, letter, when he fabricated the April 3, 2013, note, when he testified falsely during the sworn statement, when he provided false information to the disciplinary investigator, and when he testified falsely at the hearing on the formal complaint. As such, the hearing panel concludes that the respondent violated KRPC 8.4(c).
“KRPC 8.4(d)
“29. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). The respondent engaged in conduct that was prejudicial to the administration of justice when he failed to take action to represent J.S. Additionally, the respondent engaged in conduct that is prejudicial to the administration of justice when he fabricated a letter, fabricated notes, provided false information to the disciplinary investigator, and when he testified falsely under oath both at the sworn statement as well as at the hearing on the formal complaint. As such, the hearing panel concludes that the respondent violated KRPC 8.4(d).
“ICRPC 8.4(g)
“30. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). The respondent engaged in conduct that adversely reflects on his fitness to practice law when he obstructed the disciplinary investigation by fabricating evidence, providing false information to the disciplinary investigator, and testifying falsely under oath during the sworn statement and the hearing on the formal complaint. The hearing panel concludes that the respondent violated KRPC 8.4(g).
“KRPC 8.1 and Kan. Sup. Ct. R. 207(b)
“31. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirements in this regard.
‘An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
(a) knowingly malee a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawyer demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.’
KRPC 8.1.
‘It shall be the duty of each member of the bar of this state to aid tire Supreme Court, the Disciplinary Hoard, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’
Kan. Sup. Ct. R. 207(b). The respondent fabricated the April 3, 2013, letter after receiving the disciplinary complaint. Further, the respondent fabricated the April 3, 2013, notes which purport to reflect a telephone conversation between the respondent and Mr. Mathews. The respondent falsely told the attorney appointed to investigate the complaint that he had mailed the April 3, 2013, letter to J.S. Finally, the respondent provided false testimony during the sworn statement and during tire hearing on the formal complaint. As a result, the hearing panel concludes that the respondent violated KRPC 8.1(a) and Kan. Sup. Ct. R. 207, by providing fabricated documents, by making a false statement to the attorney investigator, and by testifying falsely.
“American Bar Association Standards for Imposing Lawyer Sanctions
“32. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, tire factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“33. Duty Violated. The respondent violated his duty to his client to provide diligent representation and adequate communication. The respondent violated his duty to his client, tire public, and the legal profession to maintain his personal integrity.
“34. Mental State. The respondent knowingly and intentionally violated his duties.
“35. Injury. As a result of the respondent’s misconduct, tire respondent caused actual injury to tire legal profession and potential injury to his client.
“Aggravating and Mitigating Factors
“36. Aggravating circumstances are any coirsiderations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its rec ommendation for discipline, tire hearing panel, in this case, found the following aggravating factor present:
“37. Prior Disciplinary Offenses. The respondent has been previously disciplined on two prior occasions. In 2004, the respondent entered into the attorney diversion program for violating KRPC 1.4. The respondent successfully completed tire diversion. Additionally, in 2010, the disciplinary administrator informally admonished the respondent for having violated KRPC 1.3 and KRPC 1.4.
“38. Dishonest or Selfish Motive. The respondent’s misconduct was motivated by dishonesty and selfishness. The respondent fabricated evidence, made a false statement to the disciplinary investigator, and falsely testified under oath. The respondent’s dishonest conduct in this case is a significant aggravating factor.
“39. A Pattern of Misconduct. The respondent has engaged in a pattern of misconduct. Twice the respondent created evidence to malee it appear as though he properly represented J.S. Further, twice, tire respondent falsely testified under oath. Finally, the respondent’s prior discipline involved two of the same rules at issue in this case. Thus, tire hearing panel concludes that the respondent engaged in a pattern of misconduct.
“40. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.3, KRPC 1.4, KRPC 8.1, KRPC 8.4(c), KRPC 8.4(d), KRPC 8.4(g), and Kan. Sup. Ct. R. 207(b). Accordingly, the hearing panel concludes that the respondent committed multiple offenses.
“41. Submission of False Evidence, False Statements, or Other Deceptive Practices During the Disciplinary Process. As discussed above, the hearing panel concludes that the respondent made a false statement to the attorney assigned to investigate the complaint filed by J.S. and the respondent testified falsely during the sworn statement taken during die course of die disciplinary investigation. Also, the hearing panel concluded tiiat the respondent testified falsely during the hearing on die formal complaint. The hearing panel is deeply troubled by die respondent’s submission of false evidence and the false statements.
“42. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted die respondent to practice law in die State of Kansas in 1982. At the time of die misconduct, die respondent had been practicing law for more tiian 30 years.
“43. Mitigating circumstances are any considerations or factors that may justify a reduction in die degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present:
“44. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rides of Professional Conduct. In December, 2014, die respondent underwent a psychological evaluation. The psychologist concluded that die respondent does not have a ‘diagnosable mental illness’ and has an underlying normal personality’ as die ‘test indices do not indicate the presence of antisocial behavior, hostility, anxiety, tiiought disorder, agitation, paranoia, or im-pulsivity.’ However, die psychologist also concluded tiiat the respondent has likely for some time (perhaps a few year's) suffered depression, frustration, over-extension, discontent, and anger, without tire insight to assess or the ability to express these feelings.’ The psychologist also identified certain personality traits that are problematic. The hearing panel concludes that the respondent’s personal or emotional problems mitigate his conduct as it related to the diligence and communication issues. However, the hearing panel finds no connection between the respondent’s personal or emotional problems and the dishonest conduct.
“45. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The respondent is an active and productive member of the bar of Overland Park, Kansas. The respondent also enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by several letters received by the hearing panel.
“46. Remorse. At the hearing on this matter, the respondent expressed remorse. However, tire hearing panel concludes that this factor is not a significant mitigating factor as tire respondent appears to be remorseful that he is presently in this situation. The respondent does not appear to be remorseful for failing to properly represent J.S. or for engaging in dishonest conduct in the disciplinary investigation. The respondent’s lack of genuine remorse was captured by his psychologist as follows:
‘Mr. Williams has been open and cooperative with the evaluation, though he has made it clear he feels his offenses, for which he fully accepts responsibility, are minor and insignificant compared to those for which most other attorneys receive severe discipline. He becomes indignant when he considers he might suffer a significant disciplinary, practice-limiting sanction while other attorneys who have actually committed harmful, egregious acts have been merely reprimanded. Additionally, Mr. Williams’s interview description of what transpired to bring on the current complaint was an abbreviated, glossed-over version of what appears in the Kansas Board’s formal complaint.’
The hearing panel concludes that while the respondent pi'esented some evidence of remorse, it is not a significant mitigating factor.
“47. Remoteness of Prior Offenses. The discipline imposed in 2004 is remote in time, but not in character, to the misconduct in this case.
“48. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
‘4.41 Disbarment is generally appropriate when:
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injuiy to a client.
‘4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injuiy or potential injury to a client.
‘5.11 Disbarment is generally appropriate when:
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on die lawyer’s fitness to practice.
‘6.11 Disbarment is generally appropriate when a lawyer, with the intent to deceive die court, malees a false statement, submits a false document, or improperly widiholds material information, and causes serious or potentially serious injuiy to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.
‘7.1 Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, die public, or the legal system.’
“Recommendation
“49. The disciplinary administrator recommended diat die respondent be disbarred. The respondent recommended that he be censured by the Kansas Supreme Court and that die censure be published in die Kansas Reports.
“50. The respondent engaged in repeated dishonest conduct. The hearing panel recognizes that the ABA Standards support a recommendation of disbarment. However, based on all die evidence presented to it, die hearing panel concludes diat somediing less than disbarment is die appropriate discipline to recommend in tiiis case. Thus, die hearing panel unanimously recommends that the respondent be indefinitely suspended from the practice of law. In die event the respondent applies for reinstatement, he should be required to establish tiiat he clearly understands the serious nature of his misconduct and unconditionally and unequivocally accepts responsibility for engaging in a pattern of dishonest conduct.
“51. Costs are assessed against the respondent in an amount to be certified by the Office of die Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2014 Kan. Ct. R. Annot. 363). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ' ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of the hearing before the panel and the hearing before this court. The respondent did not file exceptions to the hearing panel’s final hearing report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d) (2014 Kan. Ct. R. Annot. 383).
The evidence before the hearing panel establishes by clear and convincing evidence the charged misconduct violated KRPC 1.3 (2014 Kan. Ct. R. Annot. 475) (diligence); 1.4(a) (2014 Kan. Ct. R. Annot. 495) (communication); 8.4(c) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct involving misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); 8.4(g) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law); 8.1(a) (2014 Kan. Ct. R. Annot. 670) (false statement in connection with disciplinary matter); and Kansas Supreme Court Rule 207(b) (2014 Kan. Ct. R. Annot. 342) (failure to cooperate in disciplinary investigation), and it supports the panel’s conclusions of law. We adopt the panel’s conclusions.
At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator recommended that respondent be disbarred. The respondent recommended published censure. The Hearing Panel recommended that the respondent be suspended indefinitely.
This court is not bound by the recommendations of the Disciplinary Administrator or the hearing panel. In re Mintz, 298 Kan. 897, 911-12, 317 P.3d 756 (2014). The court bases each disciplinary sanction on the specific facts and circumstances of the violations and aggravating and mitigating circumstances presented in the case. Mintz, 298 Kan. at 912. This court has taken the position that, while prior cases may have some bearing on the sanctions that the court elects to impose, those prior cases must give way to consideration of the unique circumstances that each individual case presents. In re Busch, 287 Kan. 80, 86-87, 194 P.3d 112 (2008). This court concerns itself less with the sanctions that were appropriate in other cases and more with which discipline is appropriate under the facts of the case before us. In re Dennis, 286 Kan. at 738.
We adopt the recommendation of the Disciplinaiy Administrator. The respondent validated our conclusion by continuing to suggest before this court that his behavior was something less than criminal and that this characterization somehow minimizes the severity of his actions. As pointed out at oral argument, he admitted the conduct of twice lying under oath, which actually is a crime punishable by imprisonment.
The pattern of misconduct, including the dishonesty, fraud, deceit, and misrepresentation outlined in the hearing panel’s report coupled with the respondent’s continuing denial of the gravity of his conduct leads us to conclude that disbarment is the appropriate discipline in this matter.
Conclusion and Discipline
It Is Therefore Ordered that G. Thomas Williams be and is hereby disciplined by disbarment in accordance with Supreme Court Rule 203(a)(1) (2014-Kan. Ct. R. Annot. 306).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2014 Kan. Ct. R. Annot 414) and Supreme Court Rule 219 (2014 Kan. Ct. R. Annot. 415).
It Is Further Ordered that the costs of tírese proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
-80,
-22,
-35,
93,
-120,
-31,
56,
46,
121,
-45,
119,
83,
-23,
-18,
12,
123,
-45,
13,
-47,
105,
-57,
-76,
119,
-64,
102,
-5,
-8,
-43,
-72,
95,
-12,
-35,
73,
48,
-54,
-43,
6,
-54,
-57,
92,
-86,
6,
9,
-16,
89,
-63,
-80,
105,
-109,
13,
53,
-66,
51,
-86,
21,
75,
40,
108,
-1,
-20,
-48,
-111,
-121,
-107,
126,
23,
51,
4,
-98,
-121,
-48,
43,
-118,
56,
32,
-24,
114,
-74,
-98,
116,
111,
-55,
9,
118,
98,
35,
21,
-89,
-92,
-116,
14,
-48,
-115,
103,
-103,
81,
107,
13,
-106,
-100,
117,
16,
39,
-4,
-22,
69,
59,
104,
15,
-113,
-60,
-109,
30,
-27,
-50,
-101,
-17,
-92,
24,
65,
-114,
-26,
95,
-97,
58,
-101,
-82,
-76
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied. .
Unpublished | [
29,
105,
109,
-97,
-88,
33,
49,
30,
66,
-113,
103,
119,
-49,
-30,
-116,
-37,
-83,
103,
-75,
91,
79,
50,
127,
-27,
98,
91,
-126,
117,
113,
111,
-6,
56,
76,
24,
-102,
85,
-62,
-56,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
35,
-24,
15,
81,
-44,
-15,
-114,
30,
65,
-64,
102,
-59,
-83,
-62,
-35,
-103,
31,
-67,
84,
-62,
85,
-48,
73,
-64,
126,
20,
-80,
37,
-24,
114,
38,
-121,
85,
15,
-7,
-75,
32,
10,
32,
44,
-83,
40,
-84,
63,
94,
13,
-92,
-13,
41,
75,
57,
-111,
-35,
24,
-47,
35,
56,
34,
-59,
15,
-24,
46,
-17,
102,
-77,
31,
40,
12,
9,
-13,
-42,
16,
53,
-49,
-41,
76,
-78,
53,
-118,
-122,
48
] |
Denied.
Unpubhshed | [
19,
-3,
-28,
-67,
-120,
-128,
19,
30,
15,
-105,
119,
119,
-17,
-10,
-108,
107,
60,
111,
-91,
-38,
-39,
18,
127,
-31,
114,
91,
-78,
117,
-15,
-18,
-7,
56,
-50,
-78,
-102,
-107,
84,
-64,
-83,
-40,
-120,
6,
57,
76,
-79,
-45,
37,
3,
89,
15,
17,
-108,
113,
62,
26,
65,
-120,
100,
-59,
-67,
-64,
-33,
-71,
3,
-9,
92,
-62,
84,
-48,
9,
-62,
126,
-112,
-111,
1,
-8,
114,
102,
-122,
117,
11,
-39,
-91,
-24,
47,
33,
44,
-68,
-84,
-89,
19,
62,
45,
-90,
-45,
33,
74,
43,
-77,
-3,
-88,
-45,
47,
-24,
11,
-60,
45,
108,
34,
-82,
-12,
-93,
93,
60,
12,
-119,
-9,
86,
19,
49,
-49,
-15,
-36,
114,
-71,
-34,
-42,
-80
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
The opinion of the court was delivered by
Biles, J.:
Jeffery D. Nelson appeals the imposition of an enhanced mandatory minimum hard 50 sentence under K.S.A. 21-4635 for the premeditated first-degree murder of his stepfather. Nelson argues the district court abused its discretion because no reasonable person would agree that the three aggravating factors found by the district court outweighed its finding in mitigation that Swartz physically abused Nelson as a child. We affirm.
Factual and Procedural Background
Nelson was convicted of first-degree premeditated murder for beating his stepfather, Stanley Swartz, to death with a baseball bat while he slept in his bed. Nelson was also convicted of burglary and three counts of forgery for breaking into Swartz’ home and stealing checks, which he later forged to withdraw $5,500 from Swartz’ account. Nelson’s crimes are detailed in his direct appeal, State v. Nelson, 291 Kan. 475, 243 P.3d 343 (2010). In that case, this court affirmed his convictions but reversed and remanded his hard 50 prison term for the first-degree murder conviction because the district court applied an incorrect legal standard when imposing it. 291 Kan. at 488.
On remand, the same judge that presided over Nelson’s trial presided over his re-sentencing. The State relied upon its previously submitted motion seeking the hard 50 sentence, arguing that aggravating circumstances justified this sentence. See K.S.A. 21-4636(e), (f), and (h). Already familiar with the case, the sentencing court took judicial notice of the evidence admitted at trial, indicated it had re-read the transcript from the original sentencing hearing and took judicial notice of the evidence presented there. The parties then presented additional evidence at the resentencing hearing.
Nelson claimed in mitigation that the murder was committed while Nelson was under the influence of extreme mental or emotional disturbance based on years of Swartz’ physical and sexual abuse. Two witnesses testified on Nelson’s behalf regarding physical abuse—his biological aunt and grandmother. Both testified they witnessed Swartz grab Nelson by his arm and throw him into a chair across the living room when Nelson was a kindergartener. His aunt also testified that Nelson’s deceased mother asked her to keep Swartz away from Nelson. But neither witness testified regarding tire alleged sexual abuse. For that claim, Nelson relied on a letter he wrote to a girlfriend while awaiting trial, in which he claimed repeated sexual abuse.
The district court found three aggravating factors were established by a preponderance of the evidence: (1) Nelson committed the murder to avoid prosecution for the burglary and forgery; (2) Nelson killed Swartz to ensure he could not testily against him; and (3) die murder was committed in a heinous, atrocious, and cruel manner. In mitigation, the sentencing court found that Swartz physically abused Nelson, citing the hearing testimony from his aunt and grandmother. It also found Nelson had not established sexual abuse by a preponderance of the evidence. The sentencing court re-imposed a hard 50 sentence, holding that any one of the aggravating factors outweighed die mitigating factor.
Nelson filed a timely appeal. This court has jurisdiction under K.S.A. 22-3601 (life sentence).
Analysis
Premeditated first-degree murder carries a life sentence with a mandatory minimum of 25 years before the defendant becomes eligible for parole unless the court finds the defendant should be subject to an enhanced mandatory minimum sentence. For crimes committed after July 1, 1999, diis requires a mandatory hard 50 term. K.S.A. 21-4635; see K.S.A. 22-3717(b)(1). To impose the hard 50 sentence, the district court must find one or more aggravated circumstances enumerated in K.S.A. 21-4636 exist and that the aggravating factors are not outweighed by any mitigating factors. K.S.A. 21-4635(d). In Nelson’s direct appeal, this court held that the aggravating factors must be proved by a preponderance of the evidence. Nelson, 291 Kan. at 487.
When reviewing a hard 50 sentence, appellate courts review the sentencing court’s weighing of aggravating and mitigating circumstances under an abuse of discretion standard. State v. Appleby, 289 Kan. 1017, 1065, 221 P.3d 525 (2009).
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Nelson does not claim the sentencing court’s decision was based upon an error of law or fact, he challenges whether the action was so unreasonable no other person would have taken the sentencing court’s approach.
The district court held three aggravating circumstances existed by a preponderance of the evidence. First, it found that Nelson lulled Swartz to avoid prosecution for the burglary and stolen checks based on trial testimony that he was attempting to cover up those crimes and prevent prosecution. Second, it found that Nelson lulled Swartz to prevent him from testifying against him, noting Swartz had previously brought Nelson up for prosecution and Nelson was imprisoned on those charges. Third, it found that the murder was committed in an especially heinous, atrocious, and cruel manner because he repeatedly beat Swartz with a baseball bat while he lay in bed. The blows did not immediately kill Swartz because he regained consciousness and went into the living room, and there was evidence that he continued to suffer pain.
The district court also found the one mitigating factor—that there was physical abuse—based on the testimony by the two witnesses that they saw Swartz throw Nelson when he was a child. And it is this factor that Nelson claims trumps the other three. Nelson claims no reasonable person would agree that the three aggravating factors, either individually or aggregated, outweigh the evidence of abuse. We disagree.
The district court’s conclusion is not unreasonable given the grisly facts of the crime and Nelson’s motive. It is well established that “ ‘[w]eighing aggravating and mitigating circumstances is not a numbers game. “One aggravating circumstance can be so compelling as to outweigh several mitigating circumstances” ’ or vice versa.” State v. Engelhardt, 280 Kan. 113, 144, 119 P.3d 1148 (2005). The sentencing court did not abuse its discretion by imposing the hard 50 sentence under these facts.
Affirmed. | [
80,
-22,
-3,
-97,
27,
96,
42,
-72,
51,
-9,
-80,
115,
35,
-17,
65,
123,
55,
55,
85,
105,
85,
-73,
7,
-63,
-94,
-13,
-15,
-44,
-77,
91,
60,
-97,
72,
80,
10,
117,
98,
-22,
-27,
-46,
-118,
7,
-88,
-9,
83,
2,
56,
47,
94,
6,
49,
62,
-13,
42,
30,
-50,
8,
41,
91,
-65,
88,
-71,
-37,
31,
89,
16,
-93,
32,
-102,
7,
112,
50,
-104,
57,
0,
-24,
115,
-106,
-126,
116,
73,
-119,
12,
102,
98,
33,
125,
-25,
-28,
-127,
46,
118,
-99,
-89,
-102,
89,
66,
37,
-106,
-3,
116,
52,
46,
-6,
-17,
4,
43,
108,
-120,
-50,
-112,
-111,
-113,
116,
6,
-6,
-61,
-119,
0,
117,
-49,
-30,
78,
-44,
123,
-101,
-106,
-74
] |
On August 19, 2011, this court suspended the respondent, Michael E. Foster, from the practice of law in Kansas for a period of 6 months. See In re Michael E. Foster, 292 Kan. 940, 258 P.3d 375 (2011). Before reinstatement, the respondent was required to pay the costs of the disciplinary action and comply with Supreme Court Rule 218 (2012 Kan. Ct. R. Annot. 397) and Supreme Court Rule 219 (2012 Kan. Ct. R. Annot. 398).
On June 15, 2012, Michael E. Foster filed a petition with this court for reinstatement to the practice of law in Kansas. The petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219. The Disciplinary Administrator affirmed that the respondent met all requirements set forth by the court.
The court, after carefully considering the record, grants the respondent’s petition for reinstatement.
It Is Therefore Ordered that the respondent be reinstated to the practice of law in the state of Kansas conditioned upon his compliance with the annual continuing legal education requirements and upon his payment of all fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission. When the respondent has complied with the annual continuing legal education requirements and has paid the fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission, the Clerk is directed to enter respondent’s name upon the roster of attorneys engaged in the practice of law in Kansas.
It Is Further Ordered that this order of reinstatement of Michael E. Foster shall be published in the Kansas Reports, and the costs of tire reinstatement proceedings are assessed to the respondent. | [
-112,
-22,
-66,
-36,
8,
96,
50,
30,
81,
-21,
103,
83,
109,
-54,
5,
107,
68,
45,
-63,
121,
-55,
-74,
118,
-56,
110,
-5,
-37,
-33,
-71,
111,
-12,
-51,
72,
-16,
-118,
-43,
6,
-56,
-39,
-36,
-114,
13,
27,
-44,
-39,
65,
-76,
69,
18,
31,
49,
87,
-77,
40,
25,
-61,
-120,
44,
-69,
-19,
81,
-107,
-103,
-121,
111,
85,
-79,
20,
60,
67,
80,
47,
-116,
61,
8,
-24,
-13,
-78,
-126,
84,
71,
-119,
33,
102,
98,
37,
1,
-20,
-68,
-84,
46,
-104,
-99,
-26,
-103,
88,
99,
5,
-108,
-65,
116,
-108,
7,
-4,
100,
-123,
31,
108,
14,
-49,
-44,
-69,
-33,
55,
-98,
-112,
-1,
-123,
48,
100,
-60,
-41,
94,
-58,
115,
-109,
-114,
-10
] |
In a letter signed on December 17,2012, addressed to the Clerk of the Appellate Courts, respondent Steven D. Rosel, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2011 Kan. Ct. R. Annot. 371) as amended December 1, 2012.
At the time tire respondent surrendered his license, a complaint had been docketed by the Disciplinary Administrator’s office in accordance with Supreme Court Rule 211 (2011 Kan. Ct. R. Annot. 334). The complaint alleged that respondent violated Kansas Rules of Professional Conduct 1.1 (2011 Kan. Ct. R. Annot. 416) (competence); 1.5 (2011 Kan Ct. R. Annot. 470) (fees); 1.7 (2011 Kan. Ct. R. Annot. 484) (conflict of interest: current clients); 1.8 (2011 Kan. Ct. R. Annot. 494) (conflict of interest: current clients: specific rules); 1.9 (2011 Kan. Ct. R. Annot. 502) (conflict of interest: duties to former client); 1.16 (2011 Kan. Ct. R. Annot. 535) (declining or terminating representation); and 8.4(a), (d) and (e) (2011 Kan. Ct. R. Annot. 618) (misconduct).
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Steven D. Rosel be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Steven D. Rosel from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379) as amended December 1, 2012.
Dated this 19th day of December, 2012. | [
-80,
-22,
-34,
93,
40,
99,
50,
30,
89,
-37,
103,
83,
-19,
-38,
4,
107,
-29,
61,
17,
107,
-59,
-74,
126,
-127,
102,
-13,
-55,
-59,
-72,
-33,
-26,
-67,
90,
56,
-54,
-43,
6,
-54,
-119,
92,
-122,
5,
9,
-48,
-38,
-127,
-76,
41,
22,
11,
85,
-98,
-77,
42,
25,
-31,
-88,
108,
-5,
-59,
81,
-111,
-103,
29,
94,
1,
-77,
52,
28,
-121,
88,
-85,
-116,
-65,
9,
-7,
51,
54,
6,
118,
79,
-71,
8,
119,
34,
34,
49,
-82,
-84,
-84,
47,
123,
-99,
-30,
-47,
72,
107,
-120,
-106,
-67,
96,
54,
35,
124,
34,
6,
31,
108,
-98,
-53,
-44,
-77,
-114,
87,
-114,
-119,
-1,
-58,
0,
84,
-111,
-12,
78,
83,
48,
-101,
-50,
-28
] |
The opinion of the court was delivered by
Biles, J.:
The State of Kansas challenges a decision by a divided Court of Appeals panel ordering a correctional facility inmate’s physical presence at his K.S.A. 60-1507 evidentiary hearing. The majority reversed the trial court’s determination that the inmate would participate by telephone. The panel held that there was no discretion as a matter of law and ordered that the inmate be transported for new proceedings. Fischer v. State, 41 Kan. App. 2d 764, 765-69, 206 P.3d 13 (2009). To resolve the issue, we consider the circumstances under which a prisoner must be produced for such proceedings and the technological alternatives for fair consideration of habeas corpus claims, while giving prisoners reasonable— but meaningful—participation in court hearings affecting them.
We reverse the Court of Appeals because its decision strips district courts of the discretion we hold that they have. But we reverse the district court’s judgment because tire record on appeal is inadequate for us to conclude whether the district court abused that discretion. We remand to the district court for further proceedings, including development of a more comprehensive record based on the factors discussed below as to whether this particular inmate should be transported to the courthouse for the evidentiary hearing in controversy.
Factual and Procedural Background
A jury convicted Craig A. Fischer of attempted first-degree murder, aggravated kidnapping, attempted rape, and criminal possession of a firearm. He was sentenced to an 842-month prison term, and the convictions were affirmed on appeal. State v. Fischer, No. 87,740, 2004 WL 1609116 (Kan. App.) (unpublished opinion), rev. denied 278 Kan. 848 (2004).
In September 2005, Fischer filed a pro se K.S.A. 60-1507 motion for postconviction relief claiming ineffective assistance of trial counsel. Fischer alleged his attorney at the time failed to: (1) investigate, interview, and present possible alibi witnesses; (2) object to allegedly prejudicial statements made by the trial judge; (3) present evidence of a claimed violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) (racially-motivated peremptory challenges by State); and (4) object to photographs taken of Fischer by law enforcement for use in a photo lineup.
In 2007, the district court scheduled an evidentiary hearing and appointed counsel for Fischer to advance his motion as permitted by K.S.A. 22-4506 (district court may appoint counsel after finding a 1507 motion presents substantial questions of law or triable issues of fact and movant is determined to be indigent). On the day of the hearing, Fischer appeared by telephone. His counsel called, several witnesses to testily, who were in the courtroom and assisted by a Spanish translator. The testimony of another witness was presented by written deposition. Fischer also testified over the telephone. The State did not call any witnesses.
The record on appeal does not reflect whether Fischer filed a pre-hearing motion to physically appear at the hearing, nor does it explain how arrangements were made for Fischer to participate by telephone from the El Dorado Correctional Facility where he was incarcerated. At oral argument, appellate counsel for both parties were unfamiliar with the lower court’s pre-hearing arrangements for the telephone conferencing. These deficiencies hamper our ability to resolve the question on appeal.
. But the record does reflect that once the district court called the correctional facility to connect with Fischer and the proceedings got under way, Fischer promptly objected that he was not physically present. This objection was immediately overruled without explanation. The entire exchange between Fischer and the district court appears as follows from the hearing transcript:
“Mr. Fischer: Okay. I’d just like for the record-—is the record going?
“The Court: Yes, it is.
“Mr. Fischer: I’d just like to state for the record that I’d like to object that this wasn’t—that I’m not present for this.
“The Court: Okay.
“Mr. Fischer: I believe it’s a habeas corpus and I should have been present.
“The Court: Okay.
“Mr. Fischer: Okay, thank you.
“The Court: You’re preserved for [the] record.”
In its subsequent written decision denying the K.S.A. 60-1507 motion on its merits, the district court stated that Fischer was given “special permission” to appear by telephone and that his request to personally appear was denied “due to his two previous convictions for murder and the conviction of the underlying case of attempted murder.”
The hearing transcript reflects that once the evidentiaiy portion of the proceedings began, Fischer stated four times he could not hear clearly what was being said. Initially, the court asked whether Fischer wanted the court to move the microphone in the courtroom closer to those in attendance, to which Fischer replied, “Yeah, I’m having a hard time hearing.” The court then told the attorney speaking to “talk loud.” Soon after, the court addressed Fischer again, asking if he could hear what the attorney was saying. Fischer replied, “No, I’m really having a difficult time with hearing. . . . [b]oth the attorneys are not coming through veiy well.” The court replied that a microphone would be placed closer to the attorneys’ lips to “malee them talk loud.” Then again, during a witness’ direct examination, Fischer spoke up and said, “I’m sorry to interrupt, but I cannot hear this witness at all.” The court asked the witness to get closer to the microphone and talk as loud as he could, telling the witness, “Don’t be shy about it at all.” Later, when Fischer was asked about something an earlier witness said, Fischer responded that he was unsure how to answer because he could not hear the witness.
There were also three occasions when Fischer’s attorney asked to consult with his client privately about witness testimony. The transcript suggests the court’s speaker-phone was disengaged each time to permit Fischer’s attorney to pick up a telephone receiver to speak directly with Fischer and that the attorney’s side of the conversation was in the presence of the court and opposing counsel. The record does not expressly state whether the room was emptied so Fischer and his attorney could speak with complete privacy. Finally, when it was Fischer s turn to testify, the judge administered the oath to him over the phone. The sufficiency of that method for securing his oath is not challenged by the parties.
Fischer filed a timely appeal, arguing the district court erred by denying the 60-1507 motion and by refusing to allow him to physically appear at the evidentiary hearing. A majority of the Court of Appeals panel reversed because of Fischer s participation by telephone. The panel did not address the district court’s ruling on the merits of the 60-1507 motion.
In the divided decision, the majority held that Fischer had to be physically present for the proceedings and that the district court had no discretion to order otherwise. Fischer, 41 Kan. App. 2d 764, Syl. ¶ 1. It held that Fischer’s telephone participation was not an adequate substitute because Fischer could not observe what was going on, assist his counsel in examining witnesses, or consult with counsel, and because the trial court was unable to personally gauge the credibility of Fischer’s testimony. The panel majority stated: “Although telephonic participation has been deemed sufficient in other proceedings, we believe that the movant’s due process interest in an evidentiary hearing in a habeas corpus proceeding to determine whether he or she has been subject to a constitutional deprivation is too significant to justify an appearance by telephone.” Fischer, 41 Kan. App. 2d at 767-68. The panel remanded for another evidentiary hearing and ordered that Fischer be transported from the correctional facility to the courthouse where his hearing would be held.
In a spirited dissent, Judge Steve Leben observed: “The court’s decision in this case will undoubtedly become one of the most widely read decisions in every prison and jail library in Kansas.” 41 Kan. App. 2d at 779. Judge Leben objected to what he viewed as the appellate court’s unnecessary intrusion into a district court’s discretion in determining when evidentiary hearings may be conducted by electronic means, as well as attendant concerns the majority’s decision raised for public safety and expense in transporting inmates to distant counties, adding:
“Another reality intrudes here. It’s well recognized that inmates—especially those with long sentences—will file habeas cases in hopes of getting the closest thing available in their world to a vacation, a trip outside prison walls. [Citation omitted.] We rightly grant an evidentiary hearing when an inmate’s motion states facts that, if true, would entitle him or her to relief. [Citation omitted.] So, if we require the physical presence of the defendant any time he or she files a habeas motion that parrots language we’ve held merited a hearing in someone else’s case, we will be letting Kansas inmates write their own day passes from prison at their leisure. To be sure, they’ll be in custody while on this pseudo-vacation but at a significant cost to the taxpayer and at some risk to the public.” 41 Kan. App. 2d at 771 (Leben, J., dissenting).
The State petitioned this court for review on two issues: (1) whether Fischer was entitled to be physically present at his motion hearing; and (2) if not, whether his trial counsel was deficient. Because we remand to the district court on the first issue, we do not reach the merits of Fischer’s 1507 motion. Our jurisdiction is conferred by K.S.A. 20-3018(b) (review of Court of Appeals decision).
Analysis
Fischer argues he had a right to be physically present at the K.S.A. 60-1507 evidentiary hearing, citing this court’s decision in Lujan v. State, 270 Kan. 163, 166-67, 14 P.3d 3d 424 (2000). He argues that participation by telephone violates Lujan and he is entitled to a new hearing that he can attend in person. But the State argues Lujan is distinguishable because it did not address whether a prisoner’s due process interests can be satisfied, i.e., a prisoner may meaningfully participate, in a K.S.A. 60-1507 evidentiary hearing by phone. And tire State petitioned this court for review of what it characterizes as the Court of Appeals bright-line rule that telephonic participation is never adequate under Lujan.
Standard of Review
Whether Fischer has a right to be physically present for his hearing depends upon the interpretation of K.S.A. 60-1507 and Supreme Court Rule 183(h) (2012 Kan. Ct. R. Annot. 274). See Lujan, 270 Kan. at 166-67. Statutory interpretation is a question of law over which appellate courts have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P. 3d 1130 (2009). Inter pretation of Supreme Court rules also is a question of law over which this court has unlimited review. Kansas Judicial Review v. Stout, 287 Kan. 450, 460, 196 P.3d 1162 (2008).
K.S.A. 60-1507 and Supreme Court Ride 183(h)
K.S.A. 60-1507 controls a Kansas prisoner s habeas corpus relief when certain errors are alleged on sentencing issues and in collateral attacks on convictions. Battrick v. State, 267 Kan. 389, 394, 985 P.2d 707 (1999). When first enacted, the statute provided a postconviction remedy and in many instances superseded the procedures previously used for common-law habeas corpus remedies. Stahl v. Board of County Commissioners, 198 Kan. 623, 624, 426 P.2d 134 (1967). K.S.A. 60-1507(a) states:
“A prisoner in custody under sentence of a court of general jurisdiction claiming tire right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may, pursuant to the time limitations imposed by subsection (f), move tire court which imposed the sentence to vacate, set aside or correct the sentence.”
The legislature enacted K.S.A. 60-1507 in 1963 as part of what was then the new Code of Civil Procedure. L. 1963, ch. 303, sec. 60-1507. State v. Richardson, 194 Kan. 471, 472, 399 P.2d 799 (1965). One of the statute’s more sweeping changes was to shift the burden of prisoner posteonviction litigation to all courts in Kansas by directing that the proceedings would be in the original sentencing court, rather than in those few judicial districts where prisoners were incarcerated. Stahl, 198 Kan. at 624. (“The new procedure has this advantage—it permits alleged errors to be reviewed by the court which tried the prisoner and is familiar with his case. It also eliminates the congestion which formerly existed in judicial districts where penal institutions were located.”); see Kansas Judicial Council Bulletin, Special Report, p. 12 (November 1962). The statute “is intended to provide in a sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus.” Cox v. State, 200 Kan. 198, 200-01, 434 P.2d 843 (1967); see Walker v. State, 216 Kan. 1, 3, 530 P.2d 1235 (1975).
K.S.A. 60-1507’s original lánguage mimicked a comparable federal law made effective in 1948. Richardson, 194 Kan. at 472. That federal statute was passed “to meet practical difficulties that had arisen in administering the habeas corpus jurisdiction of the federal courts.” United States v. Hayman, 342 U.S. 205, 219, 72 S. Ct. 263, 96 L. Ed. 232 (1952). K.S.A. 60-1507’s language is substantively unchanged since its enactment in 1963. See L. 1963, ch. 303, sec. 60-1507.
Postconviction proceedings under K.S.A. 60-1507 are civil in nature and not controlled by the same constitutional requirements applicable to criminal cases. State v. Andrews, 228 Kan. 368, 375, 614 P.2d 447 (1980). A motion such as the one in this case is separately docketed as an independent civil action and governed by the Rules of Civil Procedure. Supreme Court Rule 183(a)(1) and (a)(2). This court has previously held that a criminal defendant’s right to be present in certain criminal proceedings does not extend to all postconviction hearings. See State v. Ji, 255 Kan. 101, 116, 872 P.2d 748 (1994) (Defendant’s presence at a postconviction hearing on a motion to modify sentence is a matter resting within the sound discretion of the trial court.); State v. Jennings, 240 Kan. 377, 378-79, 729 P.2d 454 (1986) (noting statute provided defendant be personally present for correction of a sentence, but not on a motion to modify sentence); State v. Bryant, 227 Kan. 385, Syl. ¶ 2, 607 P.2d 66 (1980) (Convicted defendant is not entitled under K.S.A. 22-3405 to be present at a hearing on a new trial motion after imposition of sentence when the ground asserted is newly discovered evidence. Presence at such a hearing rests within the trial court’s discretion.).
K.S.A. 60-1507(b) addresses the district court’s ability to decide a motion without requiring the movant’s presence at a hearing. It states in relevant part:
“Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the county attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. The court may entertain and determine such motion without requiring the production of the prisoner at the hearing.” (Emphasis added.)
So by its express terms, K.S.A. 60-1507 does not require the prisoner’s production. Rather, the term “may” is used to describe whether a prisoner is brought to the hearing, indicating court discretion. See In re D.D.M., 291 Kan. 883, 891, 249 P.3d 5 (2011) (the use of “may” in a statute connotes district court discretion).
Supreme Court Rule 183 supplements the statute. It was intended to clarify and make more uniform the procedure used in a K.S.A. 60-1507 motion. Smith v. State, 195 Kan. 745, 747, 408 P.2d 647 (1965) (discussing Supreme Court Rule 183’s predecessor, Rule No. 121). Rule No. 121 was adopted by this court in 1964, the year after the legislature enacted K.S.A. 60-1507. 194 Kan. XXVII. And although it was renumbered in later years, the rule’s provisions remained the same until July 1, 2012, when it was amended. See Rule 183(h). Those revisions will be discussed below, but at the time of Fischer’s 1507 hearing, the former rule stated:
“The prisoner should he produced at the hearing on a motion attacking a sentence where there are substantial issues of fact as to events in which the prisoner participated. The sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing and requiring the prisoner to be present.” (Emphasis added.) Supreme Court Rule 183(h) (2011 Kan. Ct. R. Annot. 260).
Clearly, the rule’s then-existing language was a more forceful statement of expectation regarding a prisoner’s presence at an evidentiary hearing than what is stated in K.S.A. 60-1507. And in our caselaw, the interplay between the statute and this procedural rule was viewed early on as affording “a full opportunity to present whatever substantial matters can be advanced which could affect the validity of the sentence.” State v. Burnett, 194 Kan. 645, 647, 400 P.2d 971 (1965). This language also reflected the court’s implementation of the then-recent United States Supreme Court holding in Hayman and other federal decisions that had developed as a result of 28 U.S.C. § 2255 (1948), which was the model for K.S.A. 60-1507. See Johnson v. State, 200 Kan. 708, 710, 438 P.2d 96 (1968); Richardson, 194 Kan. at 472-73. The language was bom from the following quote in Hayman:
“The existence of power to produce the prisoner does not, of course, mean that he should be automatically produced in every Section 2255 proceeding. This is in accord with procedure in habeas corpus actions. Unlike the criminal trial where the guilt of the defendant is in issue and his presence required by the Sixth Amendment, a proceeding under Section 2255 is an independent and collateral inquiry into the validity of the conviction. Whether the prisoner should be produced depends upon the issues raised by the particular case. Where, as here, there are substantial issues of fact as to events in which the prisoner participated, the trial court should require his production for a hearing.” (Emphasis added.) 342 U.S. at 222-23.
In Hayman, the issue was whether the prisoner had consented to his criminal trial attorney’s dual representation in a related case of a principal witness against the prisoner. The Court found the district court erred by conducting a 3-day hearing without notice to the prisoner, who was not present, because the issue obviously involved controverted facts relating to the prisoner’s own knowledge, i.e., the prisoner’s consent to the alleged conflict. 342 U.S. at 208-09.
Consistent with Hayman and secondary legal commentary concerning K.S.A. 60-1507’s enactment, this court interpreted the former rule’s language in an early decision to mean that a prisoner’s presence was not essential when evidence was to be taken on a motion seeking relief under K.S.A. 60-1507—-unless the claim for relief involved a substantial issue of fact concerning events in which the prisoner personally had participated. King v. State, 200 Kan. 461, Syl. ¶ 2, 436 P.2d 855 (1968). See Foth and Palmer, Post Conviction Motions Under the Kansas Revised Code of Civil Procedure, 12 Kan. L. Rev. 493, 497 (May 1964). In emphasizing this discretionary element, the King court stated:
“Whenever the trial court considers it advisable to hear evidence relating to a motion filed under K.S.A. 60-1507, we deem it by far the best practice for the court to require that the prisoner be present,- even though his presence may not be essential to the regularity of the proceedings under every set of circumstances.” (Emphasis added.) 200 Kan. at 463.
The King court distinguished between evidentiary hearings on matters involving a substantial issue of fact concerning events in which the prisoner personally had participated from those not involving such issues. 200 Kan. at 463; see also Webb v. State, 195 Kan. 728, 734, 408 P.2d 662 (1965) (prisoners claim correctly found not substantial, so no error in failing to have prisoner produced for hearing); Brown v. State, 196 Kan. 236, 240-41, 409 P.2d 772 (1965) (prisoner s presence required at full evidentiary hearing because it involved a substantial issue of fact as to events in which tire prisoner had participated).
But this distinction was blurred in some later caselaw. See Burnett, 194 Kan. at 647 (prompt hearing with counsel and prisoner’s production are “indispensable in the protection of a movant’s right to a fair and adequate hearing on questions of merit and substance”). And in some instances the distinction was obliterated, such as when reference was made incorrectly to a prisoner’s “statutory right” to be present at a 1507 evidentiary hearing. See State v. Webber, 42 Kan. App. 2d 823, 827, 218 P.3d 1191 (2009). Rule 183(h) now provides a directive to the district courts:
“When the movant is imprisoned, the movant must be produced at the hearing on a motion to vacate, set aside, or correct sentence if there are substantial issues of fact regarding events in which the movant participated. A sentencing court may determine whether a claim is substantial before granting an evidentiary hearing and requiring the movant to be present.” (Emphasis added.) 2012 Kan. Ct. R. Annot. 276.
We will discuss application of the revised rule to Fischer’s case because we are remanding it to the district court for further proceedings.
Recent Kansas Caselaw
As noted above, the protections providing for a prisoner’s right to an adequate hearing were not seen to extend to trivial, frivolous, or insubstantial claims. See Redd v. State, 199 Kan. 431, 433, 429 P.2d 925 (1967); Perrin v. State, 196 Kan. 228, 233, 410 P. 2d 298 (1966); Call v. State, 195 Kan. 688, 693, 408 P.2d. 668, cert. denied 384 U.S. 957 (1966); see King, 200 Kan. at 465. In other words, not all motions filed under the statute merit a hearing. And as stated in the statute, a district court’s initial review of the files and record may be enough to show the issues raised do not warrant further review and the matter may be summarily denied. K.S.A. 60-1507(b).
This court, in an effort to distinguish the processes for addressing prisoner claims that were trivial or insubstantial from those meriting greater scrutiny and resources, outlined “three avenues of approach” a trial court could take in 1507 proceedings. Lujan, 270 Kan. at 170. We quote from the Lujan court’s language because its wording prompted the Court of Appeals majority’s outcome in Fischer’s case. Lujan described three possible scenarios for a district court considering a K.S.A. 60-1507 motion as follows:
“First, it may determine that the motion, files, and records of the case conclusively show that the petitioner is entitled to no relief, in which case it will summarily deny the petitioner s motion. Second, the court may determine from the motion, files, and record that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the petitioner. Third, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and record, and hold a preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial. In the event the court determines that the issue or issues are not substantial, the court may move to a final decision without tire presence of the petitioner. If the issue or issues are substantial, involving events in which the petitioner participated, the court must proceed with a hearing involving the presence of the petitioner.” Lujan, 270 Kan. at 170-71.
Lujan has been cited numerous times for this three-prong sequencing. See, e.g., Bellamy v. State, 285 Kan. 346, 353, 172 P.3d 10 (2007); Swenson v. State, 284 Kan. 931, 935, 169 P.3d 298 (2007); State v. Hoge, 283 Kan. 219, 224, 150 P.3d 905 (2007); Laymon v. State, 280 Kan. 430, 436, 122 P.3d 326 (2005); Love v. State, 280 Kan. 553, 557, 124 P.3d 32 (2005); Gaudina v. State, 278 Kan. 103, 107, 92 P.3d 574 (2004). Fischer latches onto tire language in the second prong to argue that Lujan requires a prisoner’s physical presence at every 1507 evidentiary hearing, and the Court of Appeals majority reached the same conclusion. It held that it was obligated to follow this court’s Lujan and Bellamy decisions, and telephonic participation' was insufficient to satisfy the requirement that the full evidentiaiy hearing occur “ ‘with the presence of the petitioner.’ ” Fischer, 41 Kan. App. 2d at 766-67.
Lujan dealt with a circumstance—much like in Fischer’s case— in which the district court had previously determined the ineffective assistance of counsel issues in controversy were substantial enough to warrant a full evidentiary hearing. The district court’s error, as the Lujan court emphasized, was in deciding over the prisoner’s objection that his presence was unnecessary because an affidavit containing his proposed testimony would suffice. 270 Kan. at 171. Our court agreed, stating: “Under the circumstances of this case, the presence of the petitioner was not a question subject to the court’s discretion. The petitioner was entitled to be present under the law of tins state.” 270 Kan. at 171. The court continued by explaining what the prisoner’s presence at the hearing might have added to the proceedings beyond providing his admittedly uncorroborated testimony. It noted Lujan’s absence precluded him from responding to the evidence presented at tire hearing, assisting his counsel with cross-examination, and directly rebutting testimony that contradicted his affidavit. As tire Lujan court stated: “The affidavit that Lujan was allowed to present was not a proper substitute for his presence.” 270 Kan. at 172.
In Fischer, the Court of Appeals majority seized upon Lujan and interpreted the word “presence,” which appeared in both the statute and the rule, to require that Fischer be transported to the evidentiary hearing rather than participating by telephone. And in doing so, the panel majority seems to create a bright-line rule prohibiting telephone conferencing for any K.S.A. 60-1507 evidentiary proceeding. Judge Leben’s dissent interpreted the majority’s decision as being so broad as to prohibit any. other electronic conferencing capabilities as well. Fischer, 41 Kan. App. 2d at 771-72. The majority stated:
“We conclude that ‘presence’ of a 60-1507 movant at a full evidentiary hearing does not include mere telephone participation where: (1) the record fails to cite any basis for denial of physical presence other than the nature of the movant’s conviction; and (2) the record reflects substantial difficulty in the movant’s ability to hear the proceedings. First, we note that Rule 183(h) does not contemplate mere telephone participation; the Rule states that the movant ‘should be produced.’ Production of the movant clearly means physical presence.
“Second, we do not believe the term ‘presence’ includes mere telephonic participation. ‘Presence’ is ‘the fact or condition of being present.’ Webster’s Third New International Dictionary 1793 (1993). Black’s Law Dictionary defines presence’ as ‘the state or fact of being in a particular place and time.’ Black’s Law Dictionary 1221 (8th ed. 2004). Although telephonic participation has been deemed sufficient in other proceedings, we believe that tire movant’s due process interest in an evidentiary hearing in a habeas corpus proceeding to determine whether he or she has been subject to a constitutional deprivation is too significant to justify an appearance by telephone. [Citation omitted.]
“We are persuaded that mere telephonic participation in an evidentiary hearing does not enable the movant to hear and observe witnesses, attorneys, or the judge, and certainly does not enable the manner of assistance to his or her own counsel that could be critical to such a hearing. We acknowledge that Fischer was consulted by his attorney on several occasions during the hearing, but the record seems to reflect that these consultations were made with his attorney’s side of the conversation spoken in open court. If the movant is entitled to be present at such a hearing, telephonic participation is a poor substitute.” 41 Kan. App. 2d at 767-68.
But contrary to the panel majority’s strict reading of Lujan, that case did not address whether telephone conferencing or other interactive electronic means might have provided a proper substitute for Lujan’s physical presence at his hearing. To that extent, the panel majority extended Lujan beyond its facts.
We are persuaded that when a particular case warrants further review by the district court, our rules and our existing caselaw allow a court discretionary authority when determining whether a prisoner must be physically transported for any K.S.A. 60-1507 evi-dentiary hearing, and if not, what alternatives there may be. See Supreme Court Rule 145 (2012 Kan. Ct. R. Annot. 259) (authorizing a court in its discretion to use a telephone or other electronic conference to conduct any hearing other than a trial on the merits).
Drawing from Lujan and our recent revision to Rule 183, we reiterate that district courts have three options when faced with a K.S.A. 60-1507 motion: (1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then determines there is no substantial' issue, the court may deny the motion; or (3) the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing. And if the district court decides a hearing is required, the recent revisions to Supreme Court Rule 183(h) set out two scenarios.
In the first, the motion would not- concern a substantial issue of fact regarding events involving the prisoner. In those instances, the rule is silent as to whether the prisoner must be produced; but under K.S.A. 60-1507, the district court may exercise its discretion and order the prisoner’s production if it deems such production is warranted. In the second scenario, the motion would concern a substantial issue of fact regarding events in which the prisoner participated and the rule requires the district court provide for the prisoner’s production. But this production does not necessarily require a prisoner’s physical presence.
It is within the court’s discretion to determine the means of production under the rule. In some circumstances, physical presence may be necessaiy; but in others, alternative means such as two-way interactive technology may suffice. See Supreme Court Rule 145; K.S.A. 2012 Supp. 60-243(a) (for good cause in compelling circumstances and with appropriate safeguards, a trial court may permit testimony in open court by contemporaneous transmission from a different location). In malting this discretionary determination as to the manner of production, the district court must protect a prisoner’s ability to reasonably—but meaningfully—participate in the proceedings on substantially equal terms with the State after considering the issues presented and any other circumstances deemed relevant by the court. And in the exercise of this discretion, the district court must justify its ruling on the record. See Supreme Court Rule 165 (2012 Kan. Ct. R. Annot. 262) (In contested matters, the judge must state the facts and legal principles controlling the decision.).
Fischer relies on Bellamy to advance an argument that his physical presence is always required at any evidentiaiy hearing. But the case does not stand for that proposition. The principal focus of Bellamy was the standard of review that appellate courts must apply for each of the “three avenues of approach” articulated in Lu-jan. 285 Kan. at 354-55. The case does not address whether there was an adequate substitute for Bellamy’s physical presence at the hearing in controversy and did not create a hard-and-fast rule requiring a prisoner’s physical presence at all evidentiary hearings. Bellamy simply recited Lujan’s language while deciding the standard of review questions presented under its facts.
To summarize, on the question whether a prisoner must be physically present at a K.S.A. 60-1507 evidentiary hearing, we adhere to a principle that closely balances the statutory language and Rule 183(h). Both the statute and the rule provide discretion for the district court to decide how a prisoner will be produced for a hearing in those instances requiring it. There is no bright-line rule as suggested by the majority panel mandating physical presence in all instances. The statute expressly states that a court may decide a K.S.A. 60-1507 motion “without requiring the production of the prisoner at the hearing.” K.S.A. 60-1507(b). And Rule 183(h), which is intended to complement the statute’s operation, states that the prisoner must be produced at a hearing when there are substantial issues of fact regarding events in which the prisoner participated. In that instance, the district court has discretion to determine whether a prisoner must be physically transported to the courthouse or can meaningfully participate by interactive electronic means.
A nonexclusive list of factors that may be relevant for Kansas courts to consider when faced with this question include: (1) whether die prisoner’s physical presence substantially furthers resolution of the issues presented; (2) whether the nature of the hearing requires the prisoner to privately communicate with his or her attorney and whether that communication may be accommodated; (3) whether the technology available to the court (closed circuit television, telephone, internet connection) can reliably connect to the prisoner’s location; (4) transportation costs; (5) personnel availability; (6) security risks; and (7) the hearing’s expected length. But other factors surely will arise depending on the issues being pursued in a particular hearing. See Hall v. Hall, 128 Mich. App. 757, 762, 341 N.W.2d 206 (1983) (listing factors one and six); see also Poulin, Criminal Justice and Videoconferencing Technology: The Remote Defendant, 78 Tul. L. Rev. 1089, 1108-12 (2004) (discussing some advantages and disadvantages of using technology instead of transporting the prisoner to the hearing); Raburn-Remfry, Due Process Concerns in Video Production of Defendants, 23 Stetson L. Rev. 805, 811-12 (1994) (describing advantages of technology, including that video production lessens security concerns).
In any given case, the parties will need to argue those factors they believe should enter into the court’s decision. The district court’s resolution of tire question should articulate the factors it considered in its ruling on the record. And on review by an appellate court, the district court’s decisions' regarding whether and how the prisoner is produced will be scrutinized under an abuse of discretion standard. With these factors in mind, we must still decide whether the district court in this case properly exercised its discretion when it decided to have Fischer produced by telephone.
Judicial discretion is abused if judicial action is (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken tire view adopted by the trial court; (2) based on an error of law, i.e., if tire discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Supreme Court Rule 165 places on the district court the primary duty to provide adequate findings and conclusions on the record of the court’s decision on contested matters. But a party also has the obligation to object to inadequate findings of fact and conclusions of law in order to preserve an issue for appeal because this gives the trial court an opportunity to correct any findings or conclusions that are argued to be inadequate. When faced with an incomplete record, an appellate court may remand for additional findings and conclusions. DeWerff v. Schwartz, 12 Kan. App. 2d 553, 559, 751 P.2d 1047 (1988).
The record in Fischer’s case is inadequate to make the necessaiy findings. It is unclear, for example, what occurred prior to the evidentiary hearing to connect Fischer to the proceedings by telephone. Certainly something must have happened because advanced arrangements were made to call the El Dorado Corree- tional Facility and for Fischer to be available. The record also does not explain whether Fischer’s counsel agreed to or acquiesced in the decision to have his client participate by telephone and does not explain what factors the district court considered in deciding that phone participation was adequate, as opposed to some other alternative.
What the record does reflect is that the district court gave only a very brief, after-the-fact, and cursory reasoning for denying Fischer’s request to be physically present. In its decision denying the K.S.A. 60-1507 motion, the district court stated only that it had given Fischer “special permission” to appear by telephone because of two previous murder convictions and the conviction in the underlying case of attempted murder. And while we agree that Fischer’s prior convictions enter into the court’s exercise of discretion, we cannot see how its self-described “special permission” reconciles with Rule 183(h)’s expectations as we have detailed them. After all, in deciding to hold the evidentiary hearing, the district court necessarily found at least one issue (ineffective assistance of counsel on the alibi defense) that was substantial in nature, and that issue clearly concerned events in which Fischer was involved.
Under the newer version of Rule 183(h), such findings would trigger a mandate that Fischer be produced in some fashion for the hearing. Under the rule as it existed at the time, the prisoner should have been produced. The district court’s rulings do not explain how the court thought it could meet that expectation or give Fischer fair consideration of tire issues on their merits by having him on the telephone.
In addition, we are unable to evaluate Fischer’s multiple complaints that he had difficulty hearing what was being said in the courtroom over the telephone, as well as the arrangements made for Fischer to speak privately with his attorney. The district court did nothing to make a record as to whether Fischer’s protests were valid or whether the positioning of counsel and witnesses closer to a courtroom microphone was effective. One solution to tins would have been to have someone at the prisoner’s locátion verify whether there are technical difficulties. Otherwise, the district court has no way of knowing whether the complaints are credible. And since this was not done, we cannot discern whether any communication difficulties actually impacted Fischer’s ability to meaningfully participate in the proceedings.
Accordingly, we hold that the district court did not adequately support its decision to have Fischer participate by telephone, and it did not appropriately address whether Fischer’s complaints about being unable to hear portions of the proceedings adversely impacted in a material way the presentation of his arguments. We reverse the district court’s judgment and remand to the district court for further proceedings. This is to include development of a more comprehensive record as to whether this particular inmate should be transported to the courthouse or whether alternative means of his production, such as the telephone conferencing originally ordered, will be sufficient based on the considerations described above.
The decision of the Court of Appeals is reversed. The decision of the district court is reversed and remanded with directions.
Moritz, J., not participating.
Kim W. Cudney, District Judge, assigned. | [
16,
-24,
-11,
-97,
41,
-64,
58,
-104,
97,
-13,
38,
83,
45,
82,
5,
123,
59,
61,
84,
105,
86,
-73,
71,
-39,
-6,
-13,
-46,
-41,
-77,
90,
-25,
-106,
73,
-96,
-118,
-43,
102,
-54,
-61,
80,
-116,
7,
-127,
-47,
-48,
32,
32,
103,
22,
-125,
113,
15,
-13,
104,
24,
-61,
-55,
45,
91,
-83,
-112,
-103,
-53,
-113,
75,
2,
-93,
-122,
-34,
39,
-40,
46,
-104,
57,
1,
-20,
-5,
-122,
-126,
-12,
107,
-87,
44,
38,
106,
33,
28,
-52,
40,
-119,
47,
127,
-97,
-25,
-102,
88,
73,
68,
-106,
-35,
116,
54,
11,
-4,
-25,
4,
87,
-20,
11,
-113,
-70,
-109,
15,
117,
-126,
122,
-21,
-127,
80,
113,
-52,
-14,
84,
71,
121,
-35,
-2,
-74
] |
Hebert, J.:
Paul Hardin appeals his conviction of driving under the influence, second offense. Specifically, Hardin appeals the district court’s denial of his motion to suppress evidence obtained as a result of an allegedly illegal stop of his vehicle, which ultimately led to his arrest and conviction.
Hardin argues that the law enforcement officer did not have a reasonable suspicion to justify stopping him because, even though the license plate displayed on his car was registered to another car, he had lawfully transferred the license plate from a previously owned vehicle.
For the reasons set forth herein, we affirm the judgments of the district court.
Facts
On December 8, 2009, Hardin purchased a Volkswagen from a car dealership, trading in his previous vehicle, a Pontiac, as part of the transaction. He then affixed the license plate from the Pontiac to the Volkswagen.
Eleven days later, Sedgwick County Sheriff s Deputy Jared Bliss observed Hardin’s Volkswagen and ran a computer check on the car’s license plate. Although the computer program did not report that the car had been stolen, the program reported that the license plate was registered to a Pontiac. Bliss could not determine the reason for the registration discrepancy, and he stopped Hardin’s car.
During the stop, Hardin exhibited several signs of intoxication, including an odor of alcohol, slurred speech, and bloodshot eyes. Hardin indicated that he had had “a few beers,” and he performed poorly on field sobriety tests. Bliss arrested Hardin and transported him to the county jail, where he refused to take the evidentiary breath test. The State filed two charges against Hardin: DUI, second offense, in violation of K.S.A. 2009 Supp. 8-1567(a)(3), (e), and driving a vehicle with a nonregistered license plate, in violation of K.S.A: 2009 Supp. 8-142 First. The State subsequently dropped the license plate charge after determining that Hardin had complied with the transfer provisions set forth in K.S.A. 8-127(c).
After die State filed the charges, Hardin filed his motion to suppress arguing that Bliss did not have a reasonable suspicion to stop his car. At the conclusion of the suppression hearing, the district court denied tire motion ruling from the bench:
“It’s the opinion of the Court, based upon the circumstances that I have heard today, that the officer acted properly. The statute does not require that an officer cannot stop an individual who has a tag not assigned to the vehicle. This is part and parcel of the investigation.
“This is an investigatory stop that occurred based upon reasonable suspicion that this tag was not assigned to the vehicle. That reasonable suspicion arose because of motor vehicle records which the officer accessed by way of the computer in his car.
“Once he was able to ascertain that this vehicle was a result of a trade or sale, then no violation occurred, and the driver of the vehicle would be free to go. But this does not preclude the officer from stopping the vehicle, and yes, people who purchase vehicles and place their tag from their prior vehicle on to that new vehicle are subject to being stopped. I will therefore deny the defendant’s motion to suppress.”
Hardin’s case then proceeded to a bench trial on a stipulation of facts in which Hardin renewed his objection to the admission of evidence resulting from the stop of his vehicle, thus preserving his argument for appellate review. The district court then convicted Hardin on the DUI charge, resulting in this appeal.
Determination of Reasonable Suspicion
Hardin argues on appeal that the district court erred in denying his motion to suppress the evidence obtained as a result of Bliss’ stop of his Volkswagen. The district court ruled that Bliss had a reasonable suspicion upon which to base his stop, even though it was ultimately determined that the suspicious license plate was displayed in conformity with Kansas law.
Standard of Review
An appellate court reviews the district court’s decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the district court’s findings are reviewed to determine whether they are supported by substantial competent evidence. Then the ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
The State bears the burden of proof for a suppression motion, and it must prove to the trial court the lawfulness of the search and seizure. State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).
Analysis
Hardin’s principal argument on appeal is that Bliss did not have a reasonable suspicion to stop him and therefore the evidence obtained should be suppressed, resulting in a reversal of his DUI conviction.
The stop of a vehicle on a public roadway constitutes a seizure. Consequently, in order to make a lawful investigatory stop of a vehicle, an officer must have a reasonable suspicion that criminal activity has occurred, is occurring, or is about to occur. K.S.A. 22-2402(1); State v. Marx, 289 Kan. 657, 661, 251 P.3d 601 (2009) (citing Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [1968]). Our appellate courts have adopted a working definition of reasonable suspicion:
“ ‘Reasonable suspicion means a particularized and objective basis for suspecting the person stopped is involved in criminal activity. Something more than an unparticularized suspicion or hunch must be articulated. Reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Both reasonable suspicion and probable cause are dependent upon the content of information possessed by tire detaining authority and tire information’s degree of reliability. Quantity and quality are considered in the totality of the circumstances—the whole picture that must be taken into account when evaluating whether there is reasonable suspicion.’ ” State v. Glass, 40 Kan. App. 2d 379, 382, 192 P.3d 651 (2008) (quoting State v. Toothman, 267 Kan. 412, Syl. ¶ 5, 985 P.2d 701 [1999]).
In the instant case, Bliss stopped Hardin because a computer check indicated that the license plate was registered to a Pontiac rather than to a Volkswagen. Under K.S.A. 2009 Supp. 8-142, which pertains to the registration of vehicles, prohibited acts include:
“First: To operate, or for the owner thereof knowingly to permit the operation, upon a highway of any vehicle, as defined in K.S.A. 8-126, and amendments thereto, which is not registered, or for which a certificate of title has not been issued or which does not have attached thereto and displayed thereon the license plate or plates assigned thereto by the division for the current registration year, including any registration decal required to be affixed to any such license plate.”
Violation of this statute constitutes an unclassified misdemeanor punishable by a fine not less than $500. K.S.A. 8-127(c) serves as an exception to this general rule. Under this statute, a person may drive a passenger vehicle with the license plate from the person’s previous vehicle—for up to 30 days after acquiring the new vehicle—if the person has sold, traded, or otherwise disposed of the previous vehicle and the person complies with the remaining requirements specified by the statute. The Kansas Legislature amended this statute in 2012 to extend the 30-day period to 60 days. See K.S.A. 2012 Supp. 8-127(c).
Despite the provisions of K.S.A. 8-127(c) Bliss could still articulate a reasonable suspicion to stop the car since he would have no way to know whether Hardin was displaying the license plate legally or illegally. Without malting the investigatory stop there would have been no way to either confirm or dispel his suspicion. The mere possibility that an owner could have lawfully transferred the license plate from one vehicle to another does not negate reasonable suspicion of other equally plausible and unlawful scenarios as to how the Pontiac plate came to be affixed to a Volkswagen.
A panel of this court reached a similar conclusion in State v. Kramer, No. 104,578, 2011 WL 768034 (Kan. App. 2011) (unpublished opinion), rev. denied 292 Kan. 968 (2011). There, a police officer stopped the defendant because tire tag to his vehicle was “not on file,” which could mean that tire tag did not belong to the vehicle, the tag had since been issued to another vehicle, or the registration had been cancelled. The stop led to the defendant’s arrest and prosecution for DUI. 2011 WL 768034, at *1-2. Although the district court had granted the defendant’s motion to suppress because he, in fact, had a legal license tag, this court reversed finding that the police officer had a lawful basis to stop Kramer. This court observed that the proper inquiry was whether a police officer would reasonably suspect a motorist of criminal activity for driving with a tag not on file—not whether Kramer’s actions satisfied the statutory elements of the crime that justified the stop in the first place. See 2011 WL 768034, at *3.
Another panel of this court relied upon the reasonable suspicion rationale set forth in Kramer to reach the same result in two subsequent similar decisions: State v. Alvarez, No. 106,327, 2012 WL 924817 (Kan. App. 2012) (unpublished opinion) (citing Kramer for proposition that a police officer may have a reasonable suspicion to believe that a motorist has failed to register a vehicle because the vehicle’s tag is not on file); and State v. Lee, No. 106,328, 2012 WL 924819 (Kan. App. 2012) (unpublished opinion) (stating the same). These cases are persuasive in suggesting that Bliss had a reasonable suspicion to stop Hardin. Much like the officer in Kramer, Bliss acknowledged that he was uncertain whether Hardin had violated any law when the license plate on his Volkswagen was registered to a Pontiac, but he nonetheless had a reasonable suspicion that Hardin was involved in a criminal activity. The district court did not err in so finding.
Diligent Pursuit
Hardin also raises a secondary argument that the evidence should be suppressed and his conviction reversed because Bliss failed to diligently pursue the initial purpose of the stop, which was investigation of the potential license plate violation. Hardin observes that Bliss could not recall if he asked Hardin whether he purchased a new vehicle, nor did he ask Hardin if the vehicle or the license plate was stolen. From this scenario, Hardin would now apparently convolute Bliss’ action into a pretextual stop to investigate a DUI.
The State does not address this point, and this argument is not properly before this court because Hardin never raised it before the district court. The suppression motion, the evidence, and the arguments at the suppression hearing, and Hardin’s reservation of a “continuous objection” set forth in the stipulation of facts upon which he was convicted, all focus solely upon the reason for the stop—tire potential license plate violation. Hardin’s objection to admission of the evidence was specifically premised upon the allegation that Bliss had no reasonable suspicion to support the stop.
The suggestion that Bliss had not diligently pursued or had unnecessarily prolonged the stop was not raised before the trial court as a specific objection to the admissibility of the evidence. The rule is well-established that “evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial.” State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). Even more to the point here, “a defendant cannot object to the introduction of evidence on one ground at trial, then assert another ground on appeal.” State v. Richmond, 289 Kan. 419, Syl. ¶ 4, 212 P.3d 165 (2009).
Conclusion
We conclude that the district court’s denial of Hardin’s motion to suppress was supported by substantial competent evidence and was legally correct.
Affirmed. | [
-16,
-24,
89,
-100,
15,
96,
50,
62,
81,
-9,
103,
83,
-17,
-46,
69,
59,
-30,
-97,
101,
89,
-3,
-77,
115,
25,
114,
-13,
-101,
71,
-73,
75,
100,
-80,
95,
-80,
-118,
85,
4,
73,
-123,
88,
-114,
4,
-103,
-7,
-47,
-111,
36,
-24,
6,
15,
113,
15,
-111,
46,
26,
-57,
73,
108,
-117,
-67,
-63,
-48,
-71,
-59,
-1,
6,
-125,
20,
-104,
37,
-16,
43,
-112,
57,
16,
-4,
115,
-106,
-118,
116,
75,
-119,
-96,
38,
98,
1,
17,
-51,
-91,
-88,
12,
63,
31,
6,
-104,
89,
67,
36,
-106,
-100,
119,
50,
14,
-8,
-22,
71,
85,
104,
-121,
-18,
-80,
-111,
77,
52,
14,
21,
-5,
33,
53,
65,
-57,
-26,
84,
53,
122,
-101,
-58,
-74
] |
The opinion of the court was delivered by
Johnson, J.:
The trial court found Christopher Brittingham guilty on two counts—-possession of drugs and possession of paraphernalia—based upon stipulated facts, after tire district court had denied Brittingham’s attempts to suppress his statements and the drug-related evidence as being products of an unlawful search and seizure. The drugs and paraphernalia were first observed in Brittingham’s apartment by a public housing employee who had made an uninvited entry into the apartment to check for potential damage from a sewer back-up at the facility. The Court of Appeals affirmed the district court’s determination that the public housing employee was not a government actor subject to tire constitutional restrictions on unreasonable searches and seizures in State v. Brittingham, 42 Kan. App. 2d 859, 218 P.3d 441 (2009). We granted review and affirm the result reached by the Court of Appeals.
Factual and Procedural Overview
Ron Schlesener, director of the North Newton Housing Authority (NNHA), received notice on Monday morning, February 5, 2007, that a sewer back-up had occurred over the weekend in a NNHA apartment building, where Brittingham resided in a studio apartment. Schlesener instructed Emma Hutson, a NNHA maintenance worker, to enter Brittingham’s apartment to check for pos sible water damage from the sewer back-up. After knocking and receiving no response, Hutson entered the apartment and looked for damage in the bathroom. While in tire apartment, Hutson saw two unresponsive individuals lying in bed. She also observed drugs and drug paraphernalia in plain view on the coffee table.
Hutson left the apartment without attempting to awaken the occupants. She informed Schlesener about the results of her inspection and then shared her concerns about the two apparently unconscious individuals and the “drugs and things” she had observed while in the apartment. Schlesener personally went to the apartment and attempted to arouse the two occupants. When he could not awaken them, he called 911 to report that there were two unresponsive people in an apartment.
The North Newton Chief of Police was the first to respond. After visiting with Schlesener, the Chief entered the apartment and, with some effort, was able to arouse tire occupants and elicit their identities as Brittingham and Carolyn Greer. The Chief was able to observe the drugs and paraphernalia in plain view.
Brittingham quickly asserted ownership of the drugs and paraphernalia, and he consented to the further search of his apartment. Detective Nef Torres was called in to complete the search. During the search, Brittingham assisted the officers in locating other items of interest and requested help with his drug problem. The fruits of the search ultimately led to charges against Brittingham for drug possession under K.S.A. 2006 Supp. 65-4160 and for possession of drug paraphernalia under K.S.A. 2006 Supp. 65-4152(a)(2).
Before trial, Brittingham filed a motion to suppress. He argued that Hutson and all subsequent persons who entered the apartment were government actors subject to the limitations of the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. Given that no one had obtained a warrant, Brittingham contended that everything discovered after Hutson’s entry was tainted and required suppression.
The district court denied the suppression motion, finding that neither Hutson nor Schlesener were government actors for tire purpose of the Fourth Amendment. The district court also concluded that the Chief was legally in the apartment for an appro priate health and welfare check and that, therefore, tire plain-view doctrine applied to the Chief s discovery of the drugs and paraphernalia.
The case then proceeded to a bench trial on stipulated facts, which included die evidence from the suppression hearing. Brit-tingham preserved his suppression challenge by objecting to the admission of any evidence obtained or any statements made to the police on the day of the search. After acknowledging Brittingham’s objections, the district court found sufficient evidence in the stipulated facts to convict Brittingham on both counts.
Brittingham then timely appealed his convictions, challenging the district court’s denial of his suppression motion. Relying on this court’s decision in State v. Smith, 243 Kan. 715, 763 P.2d 632 (1988), Brittingham argued that both Hutson and Schlesener were government agents because they were employed by the government and their uninvited entiy into his apartment was within the scope of that employment. Therefore, as government agents, they were subject to the constitutional prohibitions against warrantless searches.
The Court of Appeals found that Hutson and Schlesener were not government agents and, therefore, not subject to constitutional restrictions. Brittingham, 42 Kan. App. 2d at 862-63, 865. The panel relied on the test set forth in Pleasant v. Lovell, 876 F.2d 787, 796 (10th Cir. 1989), which focuses on whether the individual acted at the direction of, or in participation with, law enforcement or acted in furtherance of the government’s objectives. Brittingham, 42 Kan. App. 2d at 862-63. We granted Brittingham’s petition for review with a view to determining whether Hutson was acting as a government agent when she entered Brittingham’s dwelling without a warrant.
Government Agent for Search and Seizure Purposes
Brittingham’s brief summarizes his argument as follows:
“Mr. Schlesener and Ms. Hutson were state actors, they did not have a warrant to search Mr. Brittingham’s home, and none of the exceptions to the warrant requirement applied in this case, therefore their searchfes were] per se unrea sonable and any evidence seized ... as a direct result of their search[es] must be suppressed.”
Standard of Review
The standard of review for a district court’s ruling on a suppression motion is bifurcated, with factual findings reviewed for substantial competent evidence and the legal conclusions reviewed with a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007). If the material facts are not disputed, the question of whether to suppress evidence becomes a question of law subject to unlimited review. State v. Anderson, 259 Kan. 16, 18, 910 P.2d 180 (1996).
Anakjsis
Both our federal and state constitutions provide protection against unreasonable searches and seizures. The Fourth Amendment to the United States Constitution declares that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Those rights are echoed in Kansas Constitution Bill of Rights, § 15: “The right of the people to be secure in their persons and property against unreasonable searches and seizures shall be inviolate.” Where those constitutional constraints apply, a search conducted without a warrant is per se unreasonable, unless the State proves that the search fits within the description of an established exception to die warrant requirement. See Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); see also State v. Henning, 289 Kan. 136, 148, 209 P.3d 711 (2009) (State’s burden to prove search was proper). There is no dispute that a search warrant was not issued in this case, and tire district court did not apply a recognized exception to the warrant requirement to justify the initial warrantless entry into the apartment.
Instead, tire district court found the constitutional provisions inapplicable in this case because it opined that Hutson and Schle-sener were private citizens, rather than government actors. “The conduct of a private person acting independently and not under the authority or direction of the State is not included in the pro scriptions of the Fourth Amendment [to] the United States Constitution or section 15 of the Kansas [Constitution] Bill of Rights.” Smith, 243 Kan. 715, Syl. ¶ 5. More specifically, “[a] search by a private citizen, who is not acting as an agent of the State, is not subject to the Fourth Amendment.” 243 Kan. 715, Syl. ¶ 2. Without a constitutional violation, the exclusionary rule is inapplicable and Brittingham’s suppression motion is without merit.
The Court of Appeals focused upon the two inquiries utilized to determine whether a private citizen has become an instrument or agent of the government: “(1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his or her own ends.” Brittingham, 42 Kan. App. 2d. 859, Syl. ¶ 5. But the focus here is whether the public housing authority employees’ status as government employees made them government actors for Fourth Amendment purposes, rather dran whether they had been recruited to act on behalf of law enforcement.
Our inquiry is necessary because the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights do not apply exclusively to the acts of law enforcement officers. In New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985), the United States Supreme Court applied the constitutional prohibition on unreasonable searches and seizures to the search of a public high school student’s purse by an assistant principal who was looking for cigarettes to refute the student’s claim that she had not been smoking in a school restroom. In doing so, the Court discussed the scope of the Fourth Amendment, including other instances where it had found sufficient government action to trigger tiróse constitutional protections:
“It may well be true that the evil toward which tire Fourth Amendment was primarily directed was the resurrection of the pre-Revolutionary practice of using general warrants or writs of assistance’ to authorize searches for contraband by officers of the Crown. [Citations omitted.] But this Court has never limited die [Fourth] Amendment’s prohibition on unreasonable searches and seizures to operations conducted by die police. Rather, the Court has long spoken of die Fourth Amendment’s strictures as restraints imposed upon ‘governmental action’—that is, upon the activities of sovereign authority.’ Burdeau v. McDowell, 256 U.S. 465, 475[, 41 S. Ct. 574, 65 L. Ed. 1048] (1921). Accordingly, we have held the Fourth Amendment applicable to the activities of civil as well as criminal authorities: building inspectors, see Camara v. Municipal Court, 387 U.S. 523, 528[, 87 S. Ct. 1727, 18 L. Ed. 2d 930] (1967)[;] Occupational Safety and Health Act inspectors, see Marshall v. Barlow’s Inc., 436 U.S. 307, 312-313[, 98 S. Ct. 1816, 56 L. Ed. 2d 305] (1978)[;] and even firemen entering privately owned premises to battle a fire, see Michigan v. Tyler, 436 U.S. 499, 506[, 98 S. Ct. 1942, 56 L. Ed. 2d 486] (1978), are all subject to the restraints imposed by the Fourth Amendment. As we observed in Camara v. Municipal Court, . . . ‘[t]he basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.’ 387 U.S., at 528. Because the individual’s interest in privacy and personal security ‘suffers whether the government’s motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards,’ Marshall v. Barlow’s, Inc., [436 U.S.], at 312-313, it would be ‘anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.’ Camara v. Municipal Court, [387 U.S.], at 530.” T.L.O., 469 U.S. at 335.
On the other hand, more recently, a New York federal district court concluded that individuals working for a public housing authority were not government actors for the purpose of the Fourth Amendment search and seizure requirements. United States v. Couch, 378 F. Supp. 2d 50, 58 (N.D.N.Y. 2005). Granted, the Couch defendant’s principal argument was that the Fourth Amendment requirements applied because the apartment lease inspectors were off-duty police officers. The court rejected that argument, opining that the mere fact that the inspectors were also, at other times, employed as police officers did not make their search as an employee of the public housing authority the type of governmental activity required to trigger the Fourth Amendment. 378 F. Supp. 2d at 58 (“the Fourth Amendment does not apply to [the off-duty officers’] actions as [housing authority] representatives”). Yet the court also acknowledged that the public housing authority suspected drug activity in the apartments when it ordered the searches. Nevertheless, the court suggested that the public housing employees would retain their status as private citizens for Fourth Amendment, even if the apartment searches were a pretext to look for drugs, specifically stating:
“The Court also concludes that [the off-duty officers] were not acting as agents or instruments of the Government at the time of the lease inspection. Although it appears that the Government possessed some knowledge of the inspections and the suspicion of drug activity, [the off-duty officers] both stated that their intention was to perform their duties as [public housing authority] representatives, which constitutes a legitimate independent motivation for conducting an inspection or search. [Citations omitted.]” 378 F. Supp. 2d at 58.
Brittingham contends that our decision in Smith, 243 Kan. 715, goes further than the federal cases and establishes that, in this State, any government employee is subject to the constitutional prohibition against unreasonable searches and seizures any time that employee is acting within the scope of his or her employment. Actually, Brittingham’s contention would be die converse of the actual holding in Smith, which found that a government employee will be treated like a private citizen for Fourth Amendment search and seizure purposes where the person was acting outside of the scope of the employee’s governmental duties and not at the instigation of or in collusion with other government officials or agents. 243 Kan. at 724.
The facts in Smith are akin, but not identical, to this case. There, an employee of the Kansas Department of Wildlife and Parks was performing his duties of collecting trash from barrels in the Webster State Park when he heard a hissing sound like water running or spraying in the vicinity of the defendant’s property. His investigation of the noise led him to a leaking hose to which he turned off the water. In the process, he observed what appeared to be marijuana and smoking paraphernalia in Smith’s trailer house. The employee notified the park rangers, who notified the sheriffs office, that used the information to obtain a search warrant for the trailer house, pursuant to which drugs and paraphernalia were seized. The trial court granted Smith’s motion to suppress the evidence, finding that the person initially entering the trailer house was a government employee subject to the Fourth Amendment’s prohibition against unreasonable searches and seizures. This court reversed, emphasizing that the State employee’s initial uninvited entry into defendant’s residence “had no connection with his duties of collecting trash and no connection with the objectives of the governmental entity which employed him.” 243 Kan. at 722. In concluding, the majority in Smith stated:
“The underlying rationale for application of the exclusionary rule is to deter law enforcement and other government officials and agents from unreasonable intrusions upon the lives and property of citizens. [Citation omitted.] To exclude relevant evidence solely for tire reason that it was inadvertently stumbled onto by a government employee, as in this case, bears no rational relationship to the reasons for and the purposes of the exclusionary rule. Absent any showing [tire trash collector] entered the Smiths’ property as a part of his duties of employment or at tire instigation of or in collusion with other government officials or agents, his actions amounted to nothing more than a similar intrusion by a private citizen. We hold that under the facts of this case, the Fourth Amendment prohibition against unreasonable warrantless searches does not apply and therefore tire exclusionary rule does not bar the admissibility of the evidence seized in this case.” 243 Kan. at 724.
Justice Herd wrote a concurring opinion in which he expressed concern that tire majority’s ruling equating a government employee with a nongovernment employee for Fourth Amendment purposes based on a job description was “an invitation to search and seizure abuse.” 243 Kan. at 724 (Herd, J., concurring). Justice Herd would have reversed the trial court on the theory that the trash collecting employee’s unauthorized entry into Smith’s home was reasonable because of exigent circumstances. 243 Kan. at 724.
Brittingham takes too broad a view of tire holding in Smith. That case stands for the proposition that not all government employees are “government actors” for purposes of the search and seizure constraints of the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights, especially under circumstances where the government employee is not acting within the scope of his or her employment. See 1 LaFave, Search and Seizure § 1.8(d), p. 423 (5th ed. 2012) (citing Smith and other cases for tire proposition that tire Fourth Amendment “does not constrain the activities of persons acting in an essentially private capacity merely because they happen to be government employees”). But that holding does not give rise to a bright-line rule that equates a government employee with a constitutionally constrained government actor any time the employee is performing any activity within the scope of his or her employment. In other words, the applicability of consti tutional restraint is not driven solely by a government employee’s job description. Rather, to be a constitutionally constrained government actor, the government employee must be performing an investigatory-type activity for the benefit of his or her employer. The restrained activity will normally be exploratory, rather than reactive, in nature.
Michigan v. Tyler, 436 U.S. 499, 506, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978), provides an example of applying the Fourth Amendment to a government employee based upon the activity being performed rather than upon the employee’s job description. The Court distinguished between entering a burning building to extinguish a fire and remaining in the building for a reasonable time to investigate the cause of the fire on the one hand and reentering the building some time later to conduct an arson investigation on the other hand. The initial entry, as well as the warrantless seizure of evidence during that investigation, were constitutional while the warrantless reentry to investigate arson violated the Fourth and Fourteenth Amendments. 436 U.S. at 510-11. Granted, Tyler appears to have relied, at least in part, on an exigent circumstances rationale. Nevertheless, the case illustrates how to focus on a government employee’s activity, rather than job description, for search and seizure purposes.
In this case, the public housing employees entered Brittingham’s apartment in reaction to a maintenance problem, i.e., a sewer backup. Even if one accepts that Hutson and Schlesener were government employees, there was no suggestion that they were investigating the possibility of any wrongdoing, either civil or criminal, on the part of the apartment occupants. Their actions were entirely reactive, rather than exploratory or regulatory, in nature. Similar to the circumstances in Smith, these employees serendipitously stumbled upon illegal contraband and unconscious occupants while performing a maintenance, safety, or damage-prevention function. Moreover, there is nothing here to support the underlying rationale for the exclusionary rule, which is “to deter law enforcement and other government officials and agents from unreasonable intrusions upon the lives and property of citizens.” Smith, 243 Kan. at 724; see also Couch, 378 F. Supp. 2d at 62 (“to deter illegal police conduct, the Court must apply the exclusionary rule and suppress any evidence unconstitutionally obtained”)- These employees did not seek to intrude, but rather they sought to protect. They were not government actors within tire meaning of the Fourth Amendment or § 15 of tire Kansas Constitution Bill of Rights. Accordingly, the judgment of the Court of Appeals affirming tire district court’s refusal to suppress tire evidence is affirmed.
Affirmed.
Moritz, J., not participating.
Paula B. Martin, District Judge, assigned. | [
-80,
108,
-4,
-82,
26,
96,
58,
60,
91,
-91,
-76,
115,
-89,
-30,
29,
50,
-45,
127,
84,
73,
-63,
-73,
35,
-29,
-58,
-5,
122,
85,
-77,
95,
-2,
-36,
76,
117,
-118,
-11,
-90,
-128,
119,
90,
-122,
5,
-88,
-16,
-47,
66,
36,
59,
-110,
79,
49,
22,
-77,
62,
17,
-50,
73,
40,
75,
53,
72,
-15,
-104,
-107,
75,
22,
-94,
34,
-99,
39,
-8,
52,
-108,
49,
-128,
120,
-5,
-90,
-112,
52,
71,
-117,
-115,
38,
98,
33,
61,
-29,
36,
-55,
10,
-84,
-51,
-89,
-72,
73,
97,
32,
-105,
-97,
100,
19,
12,
-4,
-13,
-43,
77,
108,
-126,
-57,
-92,
-127,
73,
32,
-110,
-14,
-33,
101,
48,
113,
-59,
-90,
88,
118,
114,
31,
30,
-108
] |
The opinion of the court was delivered by
Biles, J.:
This is a Medicaid reimbursement appeal under the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. (now the Kansas Judicial Review Act, K.S.A. 2011 Supp. 77-601 etseq.). Three corporations, each of which owns a nursing home facility, want their reimbursement rates recalculated because they believe there was a change of ownership authorizing the adjustments. The Kansas Department on Aging (KDOA) and Kansas Health Policy Authority (KHPA) denied recalculation because of common ownership between tire buyers and sellers, which they determined barred the rate changes. On review, the district court agreed. On appeal, the corporations maintain that the agency orders are invalid, violate the Equal Protection and Due Process Clauses of the United States Constitution, and are vague. We disagree and affirm.
Factual and Procedural Background
Prior to January 1, 2005, Virgil Goracke owned 20 percent of three nursing home facilities—Indian Trails Manor, Inc., d/b/a Indian Trails Mental Health Living Center, Inc.; Manor of Norton-ville, Inc., d/b/a Village Villa; and Flint Hills, Inc., d/b/a Vintage Manor. There is no dispute these entities were Medicaid-certified nursing facilities. Goracke signed the 2003 and 2004 Medicaid cost reports for each facility as “Secretary and Owner.” He also solely owned a separate company responsible for managing these three facilities.
Effective January 1, 2005, three other corporations owned entirely by Goracke purchased the three nursing homes. Goracke renamed them: Village Villa, Inc., f/k/a Manor of Nortonville, Inc., d/b/a Village Villa; Providence Living Center, Inc., f/k/a Indian Trails Manor, Inc., d/b/a Indian Trails Mental Plealth Living Center; and Flint Hills Care Center, Inc., f/k/a Flint Hills, Inc., d/b/a Vintage Manor. Goracke signed the 2005 Medicaid cost reports for each facility as “President and Owner.”
Medicaid is a joint federal-state program providing medical assistance to eligible individuals. Its purpose is to provide medical and rehabilitation assistance to those who qualify as poor, aged, blind, or disabled. See 42 U.S.C. § 1396 et seq. (2006); State v. McWilliams, 295 Kan. 92, 96, 283 P.3d 187 (2012). States are not required to paiticipate in the Medicaid program, but once one elects to do so, it must comply with applicable federal regulations. See 42 U.S.C. § 1396a(1) (2006); Country Club Home, Inc. v. Harder, 228 Kan. 756, 763, 620 P.2d 1140 (1980), modified 228 Kan. 802, 623 P.2d 505 (1981). Kansas made this election for tire relevant time period.
Effective July 1, 2006, KHPA became responsible for the state Medicaid plan’s supervision and administration. K.S.A. 2006 Supp. 75-7409. At that time certain “powers, duties and functions of the division of health policy and finance within the department of ad ministration and the director of health policy and finance [were] transferred to and imposed upon the [KHPA].” K.S.A. 2006 Supp. 75-7413. At the time the present matter arose, KHPA was responsible for defending the regulations now questioned, which were promulgated by the Secretary of Social and Rehabilitation Services. See K.S.A. 39-708c.
Since then, mergers within Kansas government altered the agencies responsible for the state’s Medicaid program administration. Through Executive Reorganization Order No. 38, effective July 1, 2011, Governor Sam Brownback abolished KHPA and established the Kansas Division of Health Care Finance within the Kansas Department of Health and Environment. This order transferred all KHPA statutoiy powers, duties, and functions to the Kansas Department of Health and Environment, the Division of Health Care Finance, the Secretary, and the Director. As such, the responsibility for the supervision and administration of the Kansas Medicaid program is now with the Kansas Department of Health and Environment. See L. 2012, ch. 102, sec. 40.
A Medicaid services provider does not bill eligible patients for covered services. Rather, the provider is reimbursed by the government according to preestablished rates. See 42 U.S.C. § 1396a(30)(A) (2006); K.S.A. 39-708a; K.S.A. 39-708c(s), (x). A stat-utoiy amendment enacted during the 2006 Kansas legislative session changed the base year for computing the Medicaid reimbursement rates at issue in this case. Specifically, the law stated that beginning with fiscal year 2007, base year rates would be calculated by averaging together 2003, 2004, and 2005 cost reports. K.S.A. 2006 Supp. 75-5958.
KDOA, which under K.S.A. 2006 Supp. 75-5903(a) and K.S.A. 2006 Supp. 75-5908(d) was responsible for receiving and disbursing funds made available under any federal program for the aging including the Medicaid program, published a notice in the Kansas Register about this change in the base year. Additionally, in notifying providers operating a facility for 12 or more months on December 31 that they were to file a calendar year cost report, KDOA’s notice told providers that if a “non-arms length change of provider takes place . . . the facility will be treated as an ongoing operation.”
KDOA sent letters to Village Villa, Providence Living Center, and Flint Hills Care Center (collectively Village Villa) announcing the new Medicaid per diem rate for each facility effective July 1, 2006. The letters indicated that the base data for calculating the new rates was the combined cost data from each facility’s calendar year costs reports for 2003, 2004, and 2005. The letters also alerted the recipients to their right to request a fair hearing if they disagreed with the new rates. This notice was in compliance with K.A.R. 30-7-65.
In response, Village Villa requested a hearing with the Kansas Department of Administration challenging the new reimbursement rates for each facility. It argued that because the facilities underwent a change of ownership in 2005, the rates should be based exclusively on the new owner’s first calendar year cost reports, i.e., only the 2005 cost reports, which presumably would have generated more Medicaid revenue.
KDOA moved for summary judgment, arguing the applicable regulations prevented it from applying anything other than the average of the 2003,2004, and 2005 cost reports because Village Villa had not undergone a “change of ownership” as defined in K.A.R. 30-10-la(a)(7).Village Villa countered that KDOA was misapplying the regulations and that such application was unconstitutional because it did not require the agency to evaluate the arm’s length legitimacy of each transaction.
The hearing officer rejected Village Villa’s arguments, finding that the parties to each transaction were “related” under K.A.R. 30-10-la(36)(C) because Goracke had owned 20 percent of the facilities being sold to corporations owned entirely by Goracke, constituting “common ownership” under K.A.R. 30-10-la(9). Thus, “by operation of law for Medicaid reimbursement purposes—there was no change of ownership and no arms-length transaction,” and the correct method for calculating the reimbursement rate was averaging the 2003, 2004, and 2005 cost reports.
The hearing officer also correctly noted there was no administrative authority to address Village Villa’s claim that the reimburse ment regulations were unconstitutional. See Zarda v. State, 250 Kan. 364, Syl. 3, 826 P.2d 1365, cert. denied 504 U.S. 973 (1992); Kaufman v. State Dept. of SRS, 248 Kan. 951, 954, 811 P.2d 876 (1991) (“Administrative boards and agencies may not rule on constitutional questions; therefore, the issue of the constitutionality of a state statute or an administrative regulation must be raised when the case is appealed to a court of law.”).
Village Villa appealed tire hearing officer s initial order to KHPA, which agreed with the ruling that the parties to the January 2005 transaction were “related.” And it too noted it had no authority to address the constitutional claims.
Village Villa then petitioned the Shawnee County District Court for judicial review of KHPA’s final order under the Act for Judicial Review and Civil Enforcement of Agency Actions. The district court affirmed KHPA’s holding that there had not been a “change of ownership” from the January 2005 transaction even if diere had been an “arm’s length transaction” for other purposes. The court also concluded the reimbursement regulations were constitutional. Village Villa timely appealed the district court’s decision. This court transferred the case on its own motion under K.S.A. 20-3018(c).
Discussion
The Secretary of Social and Rehabilitation Services promulgated the regulation for determining whether the January 2005 acquisition by Goracke’s corporations constituted a change of ownership for Medicaid reimbursement purposes under the authority granted by K.S.A. 39-708c. The relevant subsections of that regulation are K.A.R. 30-10-la(a)(7), (9), and (36)(C). These provisions have the force and effect of law. K.S.A. 77-425.
Regulations
K.A.R. 30-10-la defines words and terms used in Article 10 (Adult Care Home Program) of the Kansas Administrative Regulations. A “change of ownership” is defined in K.A.R. 30-10-la(a)(7) as “a transfer of rights and interests in real and personal property used for nursing facility services through an arm’s-length transac tion between unrelated persons or legal entities.” (Emphasis added.)
“Related parties” are defined as:
“two or more parties with a relationship in which one party has the ability to influence another party to the transaction in the following manner:
(C) when any party considered a related party to a previous owner or operator becomes the employee, or otherwise functions in any capacity on behalf of a subsequent owner or operator. Related parties shall include parties related by family, business, or financial association, or by common ownership or control. Transactions between related parties shall not be considered to have arisen through arm’s-length negotiations.” (Emphasis added.) K.A.R. 30-10-la(a)(36)(C).
Notably for this appeal, “ ‘Common ownership’ means that an entity holds a minimum of five percent ownership or equity in the provider facility or in a company engaged in business with the provider facility.” K.A.R. 30-10-la(a)(9).
KHPA’s actions under K.S.A. 77-621(c)(3), (4), (7), and (8)
Village Villa’s overarching argument is that KHPA’s rebanee on “tire 5% rule” and its refusal to investigate or recognize the “otherwise fully arm’s length business transaction” is shocking, arbitrary, and capricious. K.S.A. 77-621 governs judicial review of agency actions. The burden of proving the invalidity of an agency’s action falls on the party making that claim. K.S.A. 77-621(a)(l).
At the outset, we note Village Villa incorrectly asserts that the 2009 amendments to K.S.A. 77-621 apply to our analysis. See Redd v. Kansas Truck Center, 291 Kan. 176, Syl. ¶ 1, 239 P.3d 66 (2010) (“[T]he 2009 Kansas Judicial Review Act amendments to the standard of review apply only prospectively to agency decisions issued on or after July 1, 2009.”). We apply the law apphcable at the time of the agency action under review. K.S.A. 77-621(a)(2).
Village Villa appears to argue invalidity under K.S.A. 77-621(c)(1), (3), (4), (7), and (8). At the time of KHPA’s decision, K.S.A. 77-621 stated in pertinent part:
“(c) The court shall grant relief only if it determines any one or more of the following: ,
(1) The agency action, or the statute or rule and regulation on which tire agency action is based, is unconstitutional on its face or as applied;
(3) the agency has not decided an issue requiring resolution;
(4) the agency has erroneously interpreted or applied the law;
(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
With regard to K.S.A. 77-621(c)(3), (4), and (8), Village Villa contends KHPA ignored the language of K.A.R. 30-10-la(a)(36), which it interprets to require “one party [having] the ability to influence another party to the transaction.” Village Villa likewise challenges KHPA’s failure to make findings on the ability to influence under K.A.R. 30-10-la(a)(10), which defines “control” as meaning that “an individual or organization has the power ... to significantly influence or direct the action ... of an organization or facility.” When a party contends an agency erroneously interpreted or applied the law, we exercise unlimited review and need not give deference to the agency’s interpretation. Saylor v. Westar Energy, Inc., 292 Kan. 610, 614, 256 P.3d 828 (2011).
Village Villa incorrectly reads K.A.R. 30-10-la(a)(36). The regulation sets forth that “ ‘related parties’ ” are those in which one party to the transaction has the ability to influence another party “in die following manner.” And under subsection (C) of K.A.R. 30-10-la(a)(36), “common ownership” is one way in which a party to a transaction may have the ability to influence the other. In addition, K.A.R. 30-10-la(a)(36)(C) provides that “related parties” include those related by “common ownership or control.” (Emphasis added). And because the term “or” separates “common ownership” and “control,” only one of those conditions need be met for parties to be deemed related. For these reasons, we reject Village Villa’s arguments that KHPA failed to decide an issue requiring resolution, erroneously interpreted or applied the regulation, and took action that was arbitrary or capricious.
Village Villa further asserts that factual support for KHPA’s action is lacking. But the basic facts are not in dispute—Village Villa concedes the three corporations that purchased the nursing fácil- ities were solely owned by Goracke and that he previously owned 20 percent of the corporations that sold the nursing facilities to the three purchasing companies. These concessions defeat any argument Village Villa makes regarding the nature of the evidence supporting KHPA’s decision. Accordingly, Village Villa’s argument under K.S.A. 77-621(c)(7) fails as well.
Constitutionality of KA.R. 30-10-la(a)(7), (9), and (36)
We next consider Village Villa’s claim that K.A.R. 30-10-la(a)(7), (9), and (36) are unconstitutional. This court may grant relief only if “[t]he agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied.” K.S.A. 77-621(c)(l). ’
Determining whether a regulation meets constitutional muster requires statutoiy interpretation, which is a question of law over which this court has unlimited review'. See National Council on Compensation Ins. v. Todd, 258 Kan. 535, 539, 905 P.2d 114 (1995). And as stated above, an agency’s interpretation of a statute or regulation is not afforded any significant deference on judicial review. Kansas One-Call System, Inc. v. State, 294 Kan. 220, 225-26, 274 P.3d 625 (2012) (citing Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 [2010]).
Equal Protection
Village Villa argues the regulations at issue violate the Equal Protection Clause of the United 'States Constitution because they treat an owner of nursing facilities who previously owned at least 5 percent of the facilities he or she purchased but had no control or significant influence over the facilities’ differently from a new owner’who similarly had no control or significant influence over the facilities. Village Villa contends that to comply with the Equal Protection Clause, the agency should be required to malee findings of fact as to whether each individual sale is an arm’s-length and valid business transaction despite having been between “related parties,” as that term is defined in the regulation. The Fourteenth Amendment to the United States Constitution provides in part: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
An equal protection analysis has three steps. First, a court must determine the nature of the statutory classifications and examine whether tírese classifications result in disparate treatment of arguably indistinguishable classes of individuals. Board of Miami County Comm'rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 315, 255 P.3d 1186 (2011). If so, the Equal Protection Clause is implicated. In the second step, a court examines which rights the classifications affect because the nature of those rights dictates the scrutiny applied when the statute or regulation is reviewed. There are three levels of scrutiny: (1) the rational basis standard to determine whether a statutory classification bears some reasonable relationship to a valid legislative purpose; (2) the heightened or intermediate scrutiny standard to determine whether a statutory classification substantially furthers a legitimate legislative purpose; and (3) the strict scrutiny standard to determine whether a statutory classification is necessary to serve some compelling state interest. Miller v. Johnson, 295 Kan. 636, 666, 289 P.3d 1098 (2012) (citing Kanza Rail-Trails Conservancy, 292 Kan. at 316). In the final step of analysis, a court determines whether the relationship between the classifications and the object desired to be obtained withstands the applicable level of scrutiny. Miller, 295 Kan. at 666 (citing Kanza Rail-Trails Conservancy, 292 Kan. at 316).
The first question is whether K.A.R. 30-10-1a(a)(7), (9), and (36) create disparate treatment of similarly situated individuals. The party challenging constitutionality has the burden of demonstrating that he or she is similarly situated to others treated differently. State v. Huerta, 291 Kan. 831, 834, 247 P.3d 1043 (2011). As such, “the parameters of a court’s consideration of whether individuals are similarly situated is set by the distinctions argued by the complaining party.” State v. Salas, 289 Kan. 245, 249, 210 P.3d 635 (2009) (citing Heller v. Doe, 509 U.S. 312, 319-21, 113 S. Ct. 2637, 125 L. Ed. 2d 257 [1993]).
The regulations distinguish between parties that own or have equity in 5 percent'or more of a provider facility and those who own or have equity in less than 5 percent. Unlike the former, the latter are able to purchase a provider facility in which they own or have equity and be treated as a new owner for the purposes of calculating Medicaid reimbursement rates. KHPA argues there is no disparate treatment because “related party transactions are not similarly situated to those transactions involving truly arm’s-length bonafide unrelated entities.”
Village Villa counters that the regulations treat similarly situated parties differently, e.g., an owner with a 4 percent interest is treated differently from one who owns 5 percent though their actual control over the provider facility may be nearly identical. On this point, we agree with Village Villa. One who owns 4 percent of a provider facility is similarly situated to one who owns 5 percent, and these regulations treat these two groups differently. Therefore, we move to the next step and determine what level of scrutiny applies.
Village Villa correctly concedes that the appropriate scrutiny level is the rational basis test. See In re Tax Appeal of Weisgerber, 285 Kan. 98, 104, 169 P.3d 321 (2007) (when complaint is that a law causes economic disparity, the rational basis test or “reasonable basis test” is used to determine if tire law violates the Equal Protection Clause); see also Downtown Bar and Grill v. State, 294 Kan. 188, 194, 273 P.3d 709 (2012) (if legislative classification does not target a suspect class or burden a fundamental right, court applies rational basis test).
The rational basis standard requires only that a statutory classification bear some reasonable relationship to a valid legislative purpose. Miller, 295 Kan. at 666 (citing Kanza Rail-Trails Conservancy, 292 Kan. at 316). As a result, the standard is a lenient one. Weisgerber, 285 Kan. at 105. A statute or regulation fails the rational basis test only if the classification at issue “ Tests on grounds wholly irrelevant to the achievement of the State’s legitimate objective.’ ” Weisgerber, 285 Kan. at 105 (quoting Leiker v. Gafford, 245 Kan. 325, 363-64, 778 P.2d 823 [1989]). And the complaining party has the burden to negate every conceivable rational basis that might support the classification challenged. Miller, 295 Kan. at 668 (citing Downtown Bar and Grill, 294 Kan. 188, Syl. ¶ 10). “ ‘[T]he party must demonstrate that “no set of circumstances exist” that survive constitutional muster. [Citation omitted.]’ ” Downtown Bar and Grill, 294 Kan. at 195.
KHPA argues there is a valid legislative purpose for the regulations at issue because they ensure the Kansas Medicaid program does not incur artificially inflated costs due to related parties engaging in self-dealing. This, it argues, keeps the government’s costs as low as possible and malees care more widely available to those in need. And for its part, Village Villa makes no arguments as to whether the State has a legitimate purpose justifying the regulations other than to state: “[T]he costs to the State would be no different if a third party purchased these facilities for the same consideration paid by [Village Villa]. As long as tire price paid was fair and reasonable, the State’s interest is protected.”
Village Villa instead focuses on the State’s method for achieving its goal. Specifically, it argues the State could prevent fraud and control escalating prices by making a factual inquiry of every transaction regarding the ability of control and possibility of unfair self-dealing. It cites South Boston General Hosp. v. Blue Cross of Va., 409 F. Supp. 1380 (W.D. Va. 1976). In that case, the Secretary of Health, Education, and Welfare refused to reimburse a qualified provider of Medicare services for costs paid to the facility’s prior owner on the basis of a federal related-parties rule (see 20 C.F.R. §§ 405.415, 405.419, and 405.427). On appeal, the district court found the regulations did not further the purpose of a federal Medicare statute, 42 U.S.C. § 1395x(v)(1)(A), which required the Secretary to reimburse providers of “needed health services.” The court cut from whole cloth a requirement that the Secretary scrutinize each related-party transaction to ensure above-board related-party transactions were not being treated inequitably when compared to unrelated-party transactions. South Boston General Hosp., 409 F. Supp. at 1384-85.
But numerous courts have declined to follow South Boston. See, e.g., Sid Peterson Memorial Hosp. v. Thompson, 274 F.3d 301, 312-13 (5th Cir. 2001) (rejecting South Bostons reasoning because “[t]he need for broad prophylactic rules [such as the related-party rule] is particularly apparent in a program as complex and ripe with the potential for abuse as the Medicare reimbursement scheme”); American Hospital Management Corp. v. Harris, 638 F.2d 1208, 1213 n.9 (9th Cir. 1981) (“[South Boston] cited no case authority for its conclusion that the Secretaiy must individually scrutinize transactions involving related entities for fairness.”)- And these courts found related-party regulations promote valid legislative purposes in support of federal Medicare law. We agree.
In Sid Peterson and American Hospital, both the Fifth and the Ninth Circuit Courts of Appeals upheld federal regulations disallowing Medicare reimbursements when transactions were between related parties. The regulations at issue in both cases, in part, identified parties as being related when one had control of another because of significant influence. Sid Peterson, 274 F.3d at 304, 311-12; American Hospital, 638 F.2d at 1209, 1212-13 (finding the exception in the regulation allowing related parties to demonstrate that they conducted a bona fide arms-length transaction helped establish tire lawfulness of the regulation). And in identifying the valid purpose of tírese regulations, the Sid Peterson court described tire “related-party rule” as “ prophylactic’ ” in that it
“involves a judgment that tire probability of abuse in related transactions is high enough that it is more efficient to prevent the opportunity for abuse from arising by prohibiting certain provider/lender relationships that are likely to give rise to self-dealing transactions, rather than to try to detect actual incidents of abuse. [Citation omitted.]” Sid Peterson, 274 F.3d at 304.
Similarly, the American Hospital court held the regulation at issue in that case was validly designed to prevent “seemingly separate entities from engaging in what is in fact self-dealing at the expense of the Medicare program.” American Hospitdl, 638 F.2d at 1212. The court noted the regulation may not achieve its objective with mathematical precision, but it upheld the regulation nonetheless because it had a reasonable relationship to the enabling legislation, 42 U.S.C. § 1395x(v)(l)(A), it was designed to implement. American Hospital, 638 F.2d at 1212-13.
More pertinently, the American Hospital court also considered the argument that the regulation violated equal protection principles and held there was no constitutional infirmity. The court concluded the classification of “ ‘related entity’ ” was a reasonable method of achieving the valid legislative purpose of preventing re imbursement of excessive charges resulting from self-dealing. American Hospital, 638 F.2d at 1213. Similarly, in Fairfax Hospital Assn, Inc. v. Califano, 585 F.2d 602 (4th Cir. 1978), the Fourth Circuit Court of Appeals had previously addressed the constitutionality of the same regulation at issue in American Hospital and found no violation of the Equal Protection Clause. The court held:
“Particularly in a program as complex as the Medicare program, with its large numbers of providers and suppliers . . . , tire Secretary, in his regulations may malee, indeed he must make, ‘ “rough accommodations illogical, it may be, and unscientific,” ’ using generalized classifications governing the methods of calculating reasonable cost’ when it is obvious that individualized cost calculations are both not administratively practical and unduly expensive.” Fairfax, 585 F.2d at 606 (quoting Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 25 L. Ed. 2d 491 [1970]; Weinberger v. Salfi, 422 U.S. 749, 773-80, 95 S. Ct. 2457, 45 L. Ed. 2d 522 [1975]).
The court concluded that given the potential for abuse in charges between related parties, regulations formulated “to prescribe reasonable classifications to prevent such abuse” were proper. Fairfax, 585 F.2d at 607.
Both Sid Peterson and American Hospital held that the related-party regulations were consistent with the Secretary’s rule-making authority under 42 U.S.C. § 1395x(v)(1)(A), which, as stated, required tire Secretary to adopt regulations resulting in reimbursement of actual costs. Sid Peterson, 274 F.3d at 307, 313; American Hospital, 638 F.2d at 1212. A comparable federal Medicaid statute offers compelling support for KHPA’s arguments regarding the legislative purpose behind the 5 percent rule. 42 U.S.C. § 1396a(30)(A) (2006) states:
“A State plan for medical assistance must
“(30)(A) provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan (including but not limited to utilization review plans as provided for in section 1396b(i)(4) of this title) as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under tire plan at least to the extent that such care and services are available to die general population in the geographic area.” (Emphasis added.)
As to what would malee a state plan inefficient and uneconomical, the Third Circuit Court of Appeals has held that provider payments that are too high make a program noncompliant with the federal requirement. Pennsylvania Pharmacists Ass'n v. Houstoun, 283 F.3d 531, 537 (3d Cir. 2002). And other jurisdictions have recognized that a state has a legitimate interest in controlling Medicaid costs. See St. Louis South Park v. Missouri DSS, 857 S.W. 2d 304, 307 (Mo. App. 1993) (controlling tire costs of its Medicaid program in setting reimbursement rates for participating nursing homes is a legitimate state interest); In re NYAHSA Litigation, 318 F. Supp. 2d 30, 42 (N.D.N.Y. 2004) (“Preserving the financial integrity of welfare programs is a legitimate state interest.”). The United States Supreme Court has also emphasized that a state has “broad discretion” when financing Medicaid benefits. Pharmaceutical Research and Mfrs. of America v. Walsh, 538 U.S. 644, 666, 123 S. Ct. 1855, 155 L. Ed. 2d 889 (2003).
While the classification at issue in South Boston, Sid Peterson, American Hospital, and Fairfax was “related parties” and the classification Village Villa challenges concerns parties that own or have equity in 5 percent or more of a provider facility, the legislative purpose is the same. The district court in rejecting Village Villa’s argument found the purpose of Kansas’ 5 percent rule/common ownership regulations to be “controlling and preserving the financial integrity of tire Medicaid program.” We agree and hold that this is a valid legislative purpose.
The remaining question is whether the classification created by the 5 percent rule bears a reasonable relationship to this valid legislative purpose we have just identified. And we find support for the 5 percent rule within K.A.R. 30-10-ia(a)(9) is found in 42 C.F.R. § 455.1 et seq. (2006), which sets forth requirements for a state fraud detection and investigation program and for disclosure of information on ownership and control. 42 C.F.R. § 455.101 (2006), which is the definitions section of tile subpart on provider disclosure, recites diat a person with an -ownership or control interest means .a person or organization that has ownership, indirect ownership, or a combination of direct and indirect ownership totaling 5 percent or more in a disclosing entity. And although it is unclear why the federal government chose to require disclosure at the 5 percent level, that requirement is evident in the original legislation, prior public law, and the legislative history. See 44 Fed. Reg. 41,644, July 17, 1979; H.R. 3, P.L. 95-142, October, 25, 1977, as reprinted in 1977 U.S.C.C.A.N. at 91 Stat. 1175-78; H.R. No. 95-393 (Pt. II), at 39-40 (1977), as reprinted in 1977 U.S.C.C.A.N. at 3042.
In addition, comments at the beginning of the published final regulation address public suggestions that the reporting requirements for a “significant business transaction” be changed from $25,000 and 5 percent to $100,000 and 10 percent. The agency’s response was that many small providers would be engaged in business transactions amounting to less than $25,000—which was statutorily required—but the transactions would still account for a substantial amount of business. And to monitor those transactions the 5 percent rule was implemented. The agency’s stated goal in promulgating a $25,000 and 5 percent requirement was to reduce the probability of Medicaid fraud. 44 Fed. Reg. 41,638, July, 17, 1979.
Village Villa contends this regulation is not binding and is an inappropriate comparison as its purpose, which is disclosure of all shareholders to ensure convicted criminals are not participating in federal health care programs, has nothing to do with who controls an organization for purposes of sale transactions. But we disagree. Medicaid’s integrity—and specifically the goal of preventing fraud—is a valid purpose for Kansas’ 5 percent rule/common ownership regulation. The federal government’s 5 percent disclosure requirement, implemented to help prevent fraud, is a reasonable method for the state to draw upon in attempting to prevent fraud within its own program.
Reduced to its essence, Village Villa’s overall contention is that there is a better way to achieve the objective of fraud prevention than the State’s chosen approach. But whether there is a better way is not the question. See Dandridge, 397 U.S. at 485 (“In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis/ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ [Citation omitted.]”). This court is obligated to determine whether there is a rational basis for the regulation in place.
We hold that the common-ownership classification of K.A.R. 30-10-la(a)(9) bears a reasonable relationship to a valid legislative purpose of controlling Medicaid costs. Village Villa failed to meet its burden to negate this rational basis. K.A.R. 30-10-a(a)(7), (9), and (36) do not violate equal protection principles.
Due Process
Village Villa next argues the regulations violate both procedural and substantive due process requirements and are void for vagueness. We consider first procedural due process, which requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Winston v. Kansas Dept. of SRS, 274 Kan. 396, 409, 49 P.3d 1274 (2002). The first determination a court must make when reviewing a procedural due process claim is whether a protected liberty or property interest is involved. It is only when a court finds a protected interest is implicated that it must then determine the nature and extent of die process that is due. Winston, 274 Kan. at 409.
Property interests are not created by the Constitution, rather they “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” (Emphasis added.) Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); see Brown v. U.S.D. No. 333, 261 Kan. 134, 150, 928 P.2d 57 (1996) (property or liberty interest not inherent in Due Process Clause but must be rooted in state law); Harrison v. Long, 241 Kan. 174, 178, 734 P.2d 1155 (1987) (same).
Village Villa contends it has a property interest in reimbursement and its 2005 calendar year cost reports should have been the basis of its rate of reimbursement. According to Village Villa, “[w]hen KDOA made its adjustment to [Village Villa’s] costs reports, it de prived [Village Villa] of [its] property interests without due process of law.” But it fails to identify what statute or regulations it relies on for this contention. Instead, it asserts only that “tire Kansas regulations constitute the rules and form tire basis of the mutually explicit understanding that supports [Village Villa’s] claims of entitlement to reimbursement.” This is a woefully insufficient platform upon which to launch a due process attack.
Village Villa relies on Furlong v. Shalala, 156 F.3d 384, 393 (2d Cir. 1998), to support its contention. The Furlong court had to decide whether physicians who had chosen to provide one land of Medicare services were entitled to the same due process received by physicians who had chosen to provide another land of Medicare services. The first step in this process was to determine if the physicians had a property interest in their reimbursements. The Furlong court rejected the providers’ argument that a property right arose from the Medicare Manual, the accompanying agency regulations, or the Administrative Procedures Act, but it approved die physicians’ argument tiiat previous administrative law judge decisions created a property interest for all physician providers, not just ones who participated in one type of Medicare services. 156 F.3d at 394-95.
But Furlong is distinguishable from Village Villa’s claim. First, Village Villa fails to cite the regulations it claims give birth to its property interest. Second, Furlong merely held a provider group had the same property interest that ALJs had already interpreted as an entitlement for a second group of providers—and regardless of their classification, the two groups had the same interest. Village Villa does not offer another instance in which Kansas regulations were interpreted to give a provider a property interest in reimbursement.
At least one federal circuit has suggested tiiat some form of property interest may exist in Medicaid reimbursement. Under New York law, the Second Circuit Court of Appeals determined that while Medicaid providers have no property interest in future reimbursements, they have a property interest in Medicaid reimbursement for “services already performed in reliance on a duly promulgated reimbursement rate.” Oberlander v. Perales, 740 F.2d 116, 120 (2d Cir. 1984), superseded by statute on other grounds as stated in Senape v. Constantino, 936 F.2d 687, 690 n.4 (2d Cir. 1991); but see Yorktown Medical Laboratory, Inc. v. Perales, 948 F.2d 84, 89 (2d Cir. 1991) (holding Medicaid provider did not have property interest in Medicaid payments that were pending investigation); but see also Personal Care Products, Inc. v. Hawkins, 635 F.3d 155, 159 (5th Cir. 2011) (Texas statutory scheme does not create property interest in present reimbursement claims while past claims are under investigation for fraud).
And based in part on Oberlander, in Painter v. Shalala, 97 F.3d 1351, 1357-58 (10th Cir. 1996), the Tenth Circuit Court of Appeals assumed, “without deciding,” that physicians have a property interest in receiving payment for Medicare services rendered. But the court concluded that physicians do not hold a property interest in having their reimbursement rates calculated in a particular manner. 97 F.3d at 1358.
To have a property interest in a governmental benefit, “a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Roth, 408 U.S. at 577. A person s interest in a governmental benefit becomes a property interest for due process purposes “if there are rules or mutually explicit understandings that support his claim of entitlement to tire benefit and that he may invoke at a hearing.” Perry v. Sindermann, 408 U.S. 593, 601, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972).
While Kansas providers may be entitled to reimbursement, i.e., to get paid for services provided, Village Villa fails to identify any “rules or understandings” that create entitlement to a specific methodology for calculating rates of reimbursement year after year. And the federal government provides states with the authority to modify rates as needed so long as specific goals are met. See generally 42 U.S.C. § 1396a(30)(A).
Whether Medicaid reimbursement is a protected property interest is a question of first impression for this court, which we will not decide in the absence of clearly articulable claims regarding the entitlements at issue and the statutory or regulatory provisions that give rise to them. We conclude that Village Villa has failed to establish a property interest in reimbursement rates calculated in a particular manner in the context of this case. Without such a property interest, its claim must fail.
As to its substantive due process claim, the United States Supreme Court has held that substantive due process does not protect economic liberties. Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 560 U.S. 702, 721, 130 S. Ct. 2592, 177 L. Ed. 2d 184 (2010) (citing Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 536, 69 S. Ct. 251, 93 L. Ed. 212 [1949]). Because Village Villa asserts an economic liberty was violated, i.e., that reimbursement rates were improperly calculated, it has no substantive due process claim.
Village Villa next complains the district court erred by finding K.A.R. 30-10-la (a)(7), (9), and (36) do not violate due process due to vagueness. Village Villa’s chief complaint is that “any undefined degree of association by family, business, or financial association would appear to be prohibited unless the term ‘or control’ is also a requirement.” It maintains such an interpretation is overly vague and, therefore, reasons that a related party’s “ability to influence” or “control” a transaction must be considered.
The test for vagueness is a common-sense determination based on fundamental fairness. “A statute that ‘either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application’ violates the Fourteenth Amendment to the United States Constitution and is thus void for vagueness.” State v. Richardson, 289 Kan. 118, 124, 209 P.3d 696 (2009) (quoting State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 [1983]). Statutes regulating business are given greater leeway than those proscribing criminal conduct. Kaufman v. Kansas Dept. of SRS, 248 Kan. 951, 956, 811 P.2d 876 (1991). And “ ‘[a] statute will not be declared void for vagueness when it employs words commonly used, previously judicially defined, or having a settled meaning in law.’ ” Kaufman, 248 Kan. at 958 (quoting Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 663, 562 P.2d 65 [1977]).
The pertinent part of K.A.R. 30-10-la(a)(36)(C) states: “Related parties shall include parties related by family, business, or financial association, or by common ownership or control.” These are com monly used words. Village Villa fails to elaborate as to why it argues vagueness other than its bald allegation that the regulation is vague. Without any substance behind it, we deem the argument to be abandoned. See Miller v. Johnson, 295 Kan. 636, 2012 WL 4773559, at *36 (2012) (citing Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 714, 216 P.3d 170 [2009]) (claims made in passing without argument or support deemed waived and abandoned).
Compliance toith federal regulations
Village Villa lastly asserts K.A.R. 30-10-la(a)(7), (9), and (36)(C) contravene a purpose of the federal Medicaid regulations: encouraging provider participation by making sufficient payments “to enlist enough providers so that services under the plan are available to recipients at least to the extent that those services are available to the general population.” See 42 C.F.R. § 447.204 (2006). KHPA provides statistics demonstrating that it is meeting that purpose.
The appropriate supervisory federal agency—the Centers for Medicare and Medicaid Services (CMS)—has approved Kansas’ Medicaid plan. Village Villa fails to address why CMS would approve the state plan if the Kansas regulations contravened this federal puipose or otherwise elaborate on its argument. Given this failure, we similarly deem this issue abandoned.
We conclude the district court correctly affirmed KHPA’s final order regarding the application of K.A.R. 30-10-la(a)(7), (9), and (36)(C) and appropriately rejected Village Villa’s constitutional claims.
Affirmed.
Luckert, J. not participating.
Marquardt and Caplinger, JJ., assigned. | [
-44,
-5,
-35,
-18,
12,
-32,
50,
-126,
98,
-29,
39,
83,
111,
-26,
21,
47,
-29,
47,
-63,
109,
-41,
-77,
87,
-86,
-58,
-6,
-5,
-51,
-69,
-35,
-28,
-42,
8,
84,
-102,
53,
-90,
-62,
93,
80,
-118,
14,
30,
-47,
-63,
-64,
48,
103,
22,
10,
49,
-115,
-15,
44,
17,
107,
8,
44,
121,
-83,
-40,
-16,
-54,
-121,
91,
5,
32,
52,
26,
111,
112,
18,
-98,
80,
8,
-24,
83,
38,
-42,
52,
7,
-103,
13,
35,
99,
-95,
17,
-27,
-24,
-106,
14,
-42,
-115,
-121,
-105,
88,
114,
11,
-73,
-100,
116,
30,
11,
124,
-2,
-108,
-33,
-19,
-127,
-118,
-98,
-109,
-50,
101,
-120,
-57,
-9,
-107,
-80,
97,
-55,
-94,
95,
-57,
50,
59,
58,
-112
] |
The opinion of the court was delivered by
Beier, J.:
Defendant Jeffery Swindler appeals his conviction for rape. He argues his conviction should be reversed on two grounds: (1) rape is an alternative means crime, and the State failed to present sufficient evidence to support each of the means upon which the district court instructed the jury; and (2) the district court erred in denying Swindler’s motion to suppress incriminating statements and a drawing he provided law enforcement officers. Swindler also contends that the journal entry of judgment wrongly reflects that the district court imposed lifetime postrelease rather than lifetime parole and that the district court erred in imposing lifetime parole with electronic monitoring.
We reverse his conviction because his motion to suppress should have been granted, and we remand to the district court for further proceedings.
Factual and Procedural Background
Defendant Jeffery Swindler lived with his then girlfriend, M.M., and his two daughters from a previous relationship in a rental home owned by M.M.’s aunt, J.C. J.C.’s then-ll-year-old daughter, L.C., M.M.’s cousin, occasionally spent the night at Swindler’s residence. One night in late 2008, Swindler, M.M., and L.C. were in bed watching a movie in Swindler and M.M.’s bedroom. According to L.C., she fell asleep during the movie and awoke to find Swindler’s finger in her vagina. L.C. told her mother about the incident in May 2009. Based on her allegation, the State charged Swindler with one count of rape under K.S.A. 21-3502(a)(2) (sexual intercourse with a child under 14 years of age).
Before trial, Swindler filed a motion to suppress incriminating statements, written confessions, and a drawing he provided to investigators during an interview at the Kansas Bureau of Investigation’s Wichita office. In his memorandum in support of the motion to suppress, Swindler argued that the interview was a custodial interrogation and that his invocation of his right to remain silent was not honored by the officers conducting the interview, KBI Agent Ricky Attebury and Jeff Hawkins of the Sumner County Sherriff s office. Swindler argued that tire statements he made after he invoked his right to remain silent were involuntaiy and inadmissible.
During the hearing on the motion to suppress, Attebury and Hawkins testified about the circumstances surrounding Swindler’s interview. Hawkins testified that he had interviewed Swindler as a suspect for the first time at the Southwest Wichita Police Department Substation. At the conclusion of that interview, Hawkins invited Swindler to the KBI’s Wichita office to take a polygraph examination.
Six days later, at a time scheduled to accommodate Swindler’s work schedule, M.M. drove Swindler and his two daughters to the KBI office. M.M. and the two girls waited in a hallway while Swindler was interviewed, beginning at 8 a.m. Attebury testified that the interview room measured 8' x 8'; Attebuiy sat in front of the exit during the interview and examination. At the start of the in terview, Attebury advised Swindler of his Miranda rights. Attebury also provided Swindler a written form that indicated that the polygraph examination was voluntary and that Swindler could terminate the examination at any time. Attebury testified that the way for Swindler to terminate the interview was to “get up and walk out.” Neither Hawkins nor Attebury was armed, and both were dressed in civilian clothes. No other officers were involved with the interview. Attebury testified that there are 10 to 12 plainclothes agents assigned to the Wichita office but that typically there were fewer than 6 in the office at the time the interview occurred. Swindler was not placed in any restraints during the interview; nor was any property, such as a driver’s license or wallet, taken from him.
Shortly after the interview began, Hawkins left the room but was able to watch the interview on a monitor in another room. He testified that he did not watch the interview in its entirety. After Hawkins left the room, Attebury started the interview. At 10:02 a.m., Swindler took an 8-minute unescorted break. After the break, Attebury connected Swindler to the polygraph machine and conducted the examination, which lasted 46 minutes. Following the examination, Attebury informed Swindler that he failed the examination questions about whether he had ever touched L.C. in her “vaginal area.” At that point, Attebury’s questions became more direct and accusatory.
According to the video recording of the interview in the record on appeal, at about 11:20 a.m., the following exchange between Attebury and Swindler occurred:
“Attebury: Just tell me so we can move on. Ok. With the truth of it.
“Swindler: You want me to say “Yes. I did it’ and ....
“Attebury: Well, yeah, the details, yeah ....
“Swindler: ... go on ... .
“Attebury: Yeah, the details, so I, so I can figure out how to ask the questions
“Swindler: I can’t give you the details. I don’t know when I did it. I’m done. I want to go home. I’m done.
“Attebury: Let me, let me go ahead and talk, tell Jeff [Hawkins],
“Swindler: I can’t give you the details of when it happened. You know. It’s been so long. I can’t remember if I touched a little girl’s vaginal area. You know. I didn’t do it. You know. I don’t know what the heck’s wrong, but I didn’t do it. I know I didn’t do it.”
The video shows Attebury then left the room and 3 minutes passed before he and Hawkins returned. Attebury testified at tire suppression hearing that he suspended Swindler s interview to consult with Hawkins because Attebury thought Swindler was “close to invoking” his right to remain silent. When the two investigators re-entered the interview room, Hawkins questioned Swindler about the incident with L.C. Hawkins’ questions were, like Atte-bury’s, accusatory.
“Hawkins: Well what are we gonna do?
“Swindler: What are we gonna do?
“Hawkins: Well, I gotta, I gotta ask you [inaudible] Jeff. You know. Who am I dealing with, you know, are you this guy that goes around taking advantage of younger girls? Or is this something ....
“Swindler: I don’t, I don’t do that stuff. I don’t mess around with little girls. Since I’ve got two daughters of my own. I’ve got to take care of my ldds. I go to work. I bust my time. I go to work.
“Hawkins: I understand that. But, you know, I need to know where I’m at here. Is this something that just happened out of the blue, one-time tiling, or is it something, you know, that’s more far reaching than that.
“Swindler: [stuttering] Ok. Just to get this over with so I can go home. It’s out of the blue. I need to go-I wanna go home. I gotta get work done. I gotta go to work so I can malee some money for my kids and stuff so ... .
“Hawkins: Well, tell me what happened.”
During the next 2 hours, Swindler made incriminating statements, signed two written confessions, and drew a diagram of his hand to show how far his middle finger had penetrated L.C.’s vagina. The entire interview and polygraph examination lasted from 8:21 a.m. until 1:35 p.m., at which point Swindler was arrested.
The district court judge denied Swindler’s motion to suppress. The district court ruled that (1) the interview was investigatory rather than a custodial interrogation; (2) law enforcement was not required to “scrupulously honor” Swindler’s assertion of his right to remain silent in an investigatory setting; (3) Swindler did not “unequivocally invoke his right to remain silent”; and (4) Swindler’s statements were voluntary.
J.C., L.C., Attebmy, and Hawkins testified for the prosecution at trial. Over defense counsel’s objections, the State offered Swindler’s two written confessions and die drawing and played the video of Swindler’s interview in which he orally admitted to inserting his finger into L.C.’s vagina. Attebury testified during cross-examination that, at some point during the interview, after his oral confession, Swindler nevertheless again denied touching L.C.’s vagina and said that he had fabricated the confession so he could go to work.
Swindler testified at trial that he had only admitted to touching L.C. during the interview because he wanted to go home, and because he wanted to take his children home. When asked why he wrote the confession, .Swindler stated, “I was not getting through to the law enforcement there that I was understanding that I could go home, so I was doing this for them because they wanted to hear this, so I gave them a statement so I can get out of there and take my children to their house, and then I can go to work.” Swindler denied ever touching L.C.’s vagina.
At the close of the evidence at trial, the district judge instructed Swindler’s jury that, in order to find Swindler guilty of rape, it had to find that he “had sexual intercourse with L.C.” The jury instructions defined “sexual intercourse” as “any penetration of the female sex organ by a finger, the male sex organ[,] or any object.”
The jury convicted Swindler of rape. The district court sentenced Swindler to life in prison without the possibility of parole for 25 years. While the transcript of the sentencing hearing reflects that the district court imposed, “lifetime parole with electronic monitoring,” tire journal entry of sentencing indicates lifetime post-release supervision. ■ ■
Discussion
Alternative Means
“Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal.” State v. Brown, 295 Kan. 181, 193-94, 284 P.3d 977 (2012).
A criminal defendant has a statutory right to a unanimous jury verdict. See K.S.A. 22-3421; State v. Rojas-Marceleno, 295 Kan. 525, Syl. ¶ 13, 285 P.3d 361 (2012); State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010). In State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994), this court explained:
“ ‘In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which tire crime was committed so long as substantial evidence supports each alternative means.’ ”
“Because juiy unanimity is not required as to the means by which an alternative means crime is committed, unanimity instructions are not required in alternative means cases.” Rojas-Marceleno, 295 Kan. at 544. Nevertheless, the State must meet a “super-sufficiency of the evidence” requirement, i.e., present sufficient evidence to permit a jury to find each means of committing the crime upon which it is instructed beyond a reasonable doubt. Rojas-Marceleno, 295 Kan. at 544. If the State fails to present sufficient evidence to support each means, reversal is required. Rojas-Marceleno, 295 Kan. at 544.
In Brown, we clarified how courts are to identify statutes that underlie alternative means instructions. 295 Kan. at 193 (“Identifying an alternative means statute is more complicated than spotting the word ‘or.’ ”). We summarized the alternative means analysis as follows:
“[I]n determining if tire legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did tire legislature list options within a means, that is, options that merely describe a material element or describe a factual circumstance that would prove tire element? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. Often this intent can be discerned from the structure of the statute. On the other hand, the legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove tire crime. Such descriptions are secondary matters—options within a means—that do not, even if included in a jury instruction, raise a sufficiency issue that requires a court to examine whether the- option is supported by evidence.” Brown, 295 Kan. at 199-200.
Swindler argues that rape is an alternative means crime and that the State failed to present sufficient evidence of each of the means in the elements jury instruction. Instead, the evidence was limited to penetration with his finger. At the time of the offense, K.S.A. 21-3502(a)(2) provided: “Rapéis ... sexual intercourse with a child who is under 14 years of age.” Sexual intercourse was defined under K.S.A. 21-3501(1) as “any penetration of the female sex organ by a finger, the male sex organ or any object.” Swindler argues that K.S.A. 21-3501(1) provides three distinct ways of committing the crime of rape: penetrating a female victim’s sex organ with (1) a finger, (2) the male sex organ, or (3) any object.
We recently addressed this same issue in State v. Britt, 295 Kan. 1018, 287 P.3d 905 (2012), and held that K.S.A. 21-3501(1) does not create alternative means for committing rape. Rather, the language in the statute merely describes different factual circumstances by which a defendant might perpetrate the single actus reus of the crime, i.e., penetration of the female sex organ. Britt, 295 Kan. at 1027. Swindler’s argument lacks merit.
Motion to Suppress
Swindler’s second issue on appeal is the denial of his motion to suppress his statements, written confessions, and the drawing.
Swindler has two distinct avenues of attack. First, under a Miranda analysis, Swindler argues that the officers gave him Miranda warnings in what ended up as a custodial interrogation and that he unequivocally invoked his right to remain silent. Under this avenue, according to Swindler, everything he said after invoking his right was per se inadmissible. The State’s response to this line of argument is twofold: (1) the interview was not custodial, and thus Swindler was not entitled to protections under Miranda-, and (2) even if Swindler was entitled to Miranda protections, he failed to invoke his right to remain silent unequivocally.
Swindler’s second avenue of attack is based on a Fifth Amendment Due Process voluntariness analysis. He argues that, independent of the Miranda and invocation of his right to remain silent, the investigators’ conduct compelled his confessions. The State re sponds that Swindler s statements were freely and voluntarily given.
We note at the outset that these two avenues run parallel to one another. Although both may turn on “voluntariness,” the voluntar-iness of Miranda analysis references the voluntariness of the defendant’s encounter with law enforcement, i.e., whether an interview qualified as a custodial interrogation. Fifth Amendment Due Process analysis, on the other hand, references the voluntariness of the interrogated individual’s eventual incriminating statements. See State v. Morton, 286 Kan. 632, 649, 186 P.3d 785 (2008) (“Unwarned inculpatory statements obtained through noncustodial interrogation, although not barred by Miranda, may nevertheless be inadmissible if they were obtained in violation of the due process voluntariness requirement.”).
We address Swindler’s arguments in reverse order because the Fifth Amendment Due Process voluntariness analysis is dispositive of the bulk of his claim. This minimizes the need for lengthy discussion of whether and when the interview evolved into a custodial interrogation and whether Swindler unequivocally invoked his right to remain silent after having received Miranda warnings.
Fifth Amendment Due Process Voluntariness Analysis
The primary consideration to be given to a criminal defendant’s inculpatory statement is its voluntariness. State v. Lewis, 258 Kan. 24, 34, 899 P.2d 1027 (1995) (citing Oregon v. Elstad, 470 U.S. 298, 318, 105 S. Ct. 1285, 84 L. Ed. 2d 222 [1985]). A court looks at the totality of the circumstances to determine whether an accused’s confession was voluntary. State v. Robinson, 293 Kan. 1002, 1018, 270 P.3d 1183 (2012). Nonexclusive factors to be examined include:
“(1) tlie accused’s mental condition; (2) die duration and manner of die interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused’s age, intellect, and background; (5) die fairness of the officers in conducting the interrogation; and (6) the accused’s fluency with die English language. [Citations omitted.].
“ ‘ “[T]hese factors are not to be weighed against one another . . . , with diose favorable to a free and voluntary confession offsetting diose tending to the con trary. Instead, the situation surrounding the giving of a confession may dissipate the import of an individual factor that might otherwise have a coercive effect. [Citation omitted.] Even after analyzing such dilution, if any, a single factor or a combination of factors considered together may inevitably lead to a conclusion that under the totality of circumstances a suspect’s will was overborne and the confession was not therefore a free and voluntary act.” [Citations omitted.]’ ” Gilliland, 294 Kan. 519, 528-29, 276 P.3d 165 (2012).
K.S.A. 60-460(f) also governs the admissibility of confessions or statements by the accused:
“In a criminal proceeding as against the accused, a previous statement by the accused relative to the offense charged [is admissible], but only if the judge finds that the accused (1) when making the statement was conscious and was capable of understanding what the accused said and did and (2) was not induced to make the statement (A) under compulsion or by infliction or threats of infliction of suffering upon the accused or another, or by prolonged interrogation under such circumstances as to render the statement involuntary or (B) by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same.”
When challenged, the State has the burden to prove, by a preponderance of the evidence, that a defendant’s statements were voluntarily made, i.e., that the statements were the product of the defendant’s free and independent will. Gilliland, 294 Kan. at 528; State v. Edwards, 291 Kan. 532, Syl. ¶ 5, 243 P.3d 683 (2010); State v. Brown, 286 Kan. 170, 172, 182 P.3d 1205 (2008).
The district judge’s memorandum opinion primarily focused on Miranda analysis questions of custodial interrogation and unequivocal invocation. As to voluntariness, he simply stated that he had considered the voluntariness factors and tire facts of the case and determined that Swindler’s confessions and drawing were the products of his free and independent will. The judge also relied on a passage from United States v. Washington, 431 U.S. 181, 188, 97 S. Ct. 1814, 52 L. Ed. 2d 238 (1977): “[I]t seems self-evident that one who is told he is free to refuse to answer questions is in a curious posture to later complain that his answers were compelled.”
Swindler does not argue that the manner or duration of the interrogation; his ability to communicate with the outside world; his mental condition; his age, intellect, and background; or his proficiency with the English language negatively impacted on the vol-untariness of his statements. He relies solely on what he characterizes as the unfairness of the officers in conducting the interrogation—specifically, their assurances that he was free to terminate the interrogation and leave at any time contrasted with their refusal to honor those assurances—to support his assertion that his statements were compelled.
As stated, we must consider the totality of the circumstances in determining the voluntariness of Swindler s confessions and drawing. In State v. Stone, 291 Kan. 13, 237 P.3d 1229 (2010), this court held that defendant Joshua Stone’s incriminating statements made during a custodial interview were involuntary based on the totality of the circumstances, including:
“(1) the defendant appeared exhausted during the interrogation, which began at 1 a.m., and several of his responses were garbled and disorganized; (2) the detective made misleading and ultimately untrue statements regarding finding tire defendant’s semen on the pajamas of the 9-year-old victim; (3) the detective implied that if the defendant told the truth, the length of his sentence could be affected; and (4) the detective said the defendant would be viewed as a sexual predator unless he confessed.” State v. Robinson, 293 Kan. 1002, 1020, 270 P.3d 1183 (2012) (citing Slone, 291 Kan. at 22-33).
In State v. Swanigan, 279 Kan. 18, 106 P.3d 39 (2005), this court held that defendant Jami Del Swanigan’s confession was involuntary. Again, the court applied the totality of the circumstances test and relied on the following factors:
“(1) the law enforcement officers’ repeated use of false information and evidence, (2) tire combination of tire tactics used by law enforcement, including threats to convey Swanigan’s lack of cooperation to tire county attorney and threatening to charge him with additional robberies unless he confessed, and (3) evidence of the defendant’s low intellect and his susceptibility to anxiety.” Robinson, 293 Kan. at 1019 (citing Swanigan, 279 Kan. at 37-39).
Both the Stone and the Swanigan decisions cautioned lower courts against extending their holdings beyond their particular facts. See Stone, 291 Kan. at 32 (indicating that any one of the circumstances surrounding the interrogation, standing alone, might not have led the court to conclude the statements were coerced); Swanigan, 279 Kan. at 44 (“[A] broad reading of our opinion today is expressly discouraged.”); cf. Robinson, 293 Kan. at 1020 (confession voluntary; distinguishing Swanigan); State v. Ransom, 288 Kan. 697, 706, 207 P.3d 208 (2009) (confession voluntary).
In this case, Swindler does not claim officers manufactured information or evidence in order to get him to confess, as was the case in Stone and Swanigan. But he argues that the investigators’ bait and switch about his ability to terminate the interview and leave had the same coercive effect.
The video in the appellate record makes it very clear that Swindler wanted to exercise tire power the investigators had initially guaranteed that he possessed. From the time that he said “I’m done. I want to go home. I’m done,” it is obvious that Swindler wanted to terminate the interview and leave the KBI office. His girlfriend and two small children were waiting for him in the hallway, and he expressed his desire to go to work to provide for his children. He repeated that he was “done” and wanted to go home.
Swindler’s first clearly inculpatory statement was not made until he had said that he was confessing “just to get this over with so I can go home.” Instead of being allowed to leave, the investigators persisted in questioning him. In particular, we note that Attebury admitted he left the room to consult with Hawkins to avoid an expected invocation of Swindler’s right to remain silent. Also, Hawkins met Swindler’s repeated efforts to do what he had been told he was free to do with “Well, tell me what happened.” The message of these investigators was unmistakable: If Swindler wanted to stop talking and leave, he needed to confess to raping L.C.
In short, tire investigators set tire rules of engagement and then did not hesitate to break them as soon as they thought Swindler might slip away without telling them what they wanted to hear. Under die totality of these circumstances, the State cannot carry its burden to show that Swindler’s resulting oral confession, written confessions, and drawing were given voluntarily under the Fifth Amendment.-The.district judge’s refusal.to suppress the confessions and drawing was error.- ■ ...
Miranda Analysis
Normally, when a motion seeks to suppress a confession obtained in an allegedly custodial interrogation, the court must first determine whether tire interrogation was, in fact, custodial. If not, Miranda warnings are unnecessary.
“An appellate court reviewing a trial court’s determination of whether an interrogation is custodial, makes two discrete inquiries. Under the first inquiry, the court determines tire circumstances surrounding the interrogation, employing a substantial competent evidence standard of review. In determining if there is substantial competent evidence supporting the existence of tire circumstances found by the trial court, an appellate court does not reweigh evidence, assess the credibility of the witnesses, or resolve conflicting evidence. [Citations omitted]. The second inquiry employs a de novo standard of review to determine whether, under the totality of those circumstances, a reasonable person would have felt free to terminate tire interrogation and disengage from the encounter.” State v. Warrior, 294 Kan. 484, 497, 277 P.3d 1111 (2012).
In State v. Carson, 216 Kan. 711, Syl. ¶ 5,533 P.2d 1342 (1975), this court identified five circumstances bearing on whether a person questioned was subject to custodial interrogation. This list of factors has since been modified and grown.
“Factors to be considered in determining if an interrogation is investigative or custodial include: (1) the time and place of the interrogation; (2) tire duration of the interrogation; (3) the number of law enforcement officers present; (4) the conduct of the officers and the person subject to the interrogation; (5) the presence or absence of actual physical restraint or its functional equivalent, such as drawn firearms or a stationed guard; (6) whether the person is being questioned as a suspect or a witness; (7) whether the person being questioned was escorted by officers to the interrogation location or arrived under his or her own power; and (8) the result of the interrogation, for instance, whether die person was allowed to leave, was detained further, or was arrested after the interrogation. No one factor outweighs another, nor do the factors bear equal weight. Every case must be analyzed on its own particular facts.” Warrior, 294 Kan. 484, Syl. ¶ 2.
Swindler concedes that his encounter with Attebuiy and Hawkins started as merely investigatory rather than as a custodial interrogation. He argues that the encounter became a custodial interrogation either (1) when he was informed that he failed the polygraph evaluation or (2) when he said “I’m done. I want to go home. I’m done.”
Swindler may be right, but, under the unique circumstances of this case, it does not matter. See State v. Schultz, 289 Kan. 334, 342, 212 P.3d 150 (2009); State v. Ninci, 262 Kan. 21, 38, 936 P.2d 1364 (1997).
There is no dispute between the parties here that Swindler received Miranda warnings when his interview and the polygraph examination got under way. He need not have been given them if what followed was not a custodial interrogation. But the fact that he was given them in this situation, i.e., approximately 2 hours before in the same interview about the same crime conducted by tire same investigators, inoculated any evolution of a mere investigatory encounter into a custodial interrogation from challenge, as long as he did not invoke any of the rights the warnings were designed to protect. Compare State v. Grady, 317 Wis. 2d 344, 766 N.W.2d 729 (2009) (precustodial Miranda warnings remained effective once encounter became custodial interrogation) with State v. Appleby, 289 Kan. 1017, 1046-47, 221 P.3d 525 (2009) (Miranda rights cannot be anticipatorily invoked in a context other than custodial interrogation); see also United States v. Bautista, 145 F.3d 1140, 1151 (10th Cir.1998) (law enforcement officers not free to give Miranda warnings and then ignore person’s attempt to invoke any right thereunder because encounter is merely investigatory).
We therefore need not analyze whether the interview up until Swindler’s “I’m done. I want to go home. I’m done” statement was, in fact, a custodial interrogation. We may simply assume that all or part of it was and note that he received the warnings the law required him to be given in such a situation.
The next question in a Miranda analysis would ordinarily be whether the defendant unequivocally invoked his or her right to remain silent. This question also need not be answered here.
In short, Swindler’s first attempt to invoke his right to remain silent also marked tire line we have identified above between his voluntary statements and involuntary statements under the Fifth Amendment. We need not decide whether Swindler’s statement “I’m done. I want to go home. I’m done” was an unequivocal invocation of his right to remain silent, because we- have already decided that anything after that statement was inadmissible as in voluntary under the Fifth Amendment. Swindler does not contend that anything he said before that point constituted an invocation of his right to remain silent, much less an unequivocal invocation of that right.
Harmlessness Analysis
Having decided that the district judge erred in refusing to suppress Swindler s confessions and drawing, we turn to whether that violation of Swindler’s Fifth Amendment right to remain silent was harmless. A constitutional error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of die entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict. State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Here, there was no physical evidence offered at trial. The entire case turned on whom die jury believed, L.C. or Swindler. This means that the admission of Swindler’s confessions and drawing was indescribably prejudicial. The erroneous admission of this evidence cannot be ruled harmless beyond a reasonable doubt, a point the State essentially conceded during oral argument. Swindler’s conviction of rape must be reversed.
Sentencing Arguments
Because we determine that Swindler’s conviction must be reversed, we do not reach his sentencing arguments.
Conclusion
For all of the reasons detailed above, we reverse defendant Jeffery Swindler’s conviction for rape and remand this case to the district court for further proceedings consistent with this opinion. | [
16,
-18,
-115,
-98,
47,
96,
-86,
-12,
98,
-77,
-77,
115,
47,
74,
4,
123,
-78,
61,
20,
97,
-42,
-73,
71,
-55,
-74,
-14,
-48,
-35,
-78,
79,
-26,
-74,
8,
112,
66,
85,
38,
-56,
115,
84,
-114,
7,
-120,
-12,
-46,
8,
36,
43,
82,
15,
49,
-98,
-13,
105,
28,
-61,
73,
44,
-53,
-3,
72,
-111,
-6,
7,
-37,
16,
-93,
38,
-66,
4,
-8,
-76,
-100,
57,
8,
104,
-9,
-74,
-122,
116,
79,
-101,
-91,
102,
99,
32,
5,
-49,
-84,
-87,
-113,
127,
-99,
-89,
-104,
72,
64,
108,
-97,
-35,
68,
22,
15,
-6,
-13,
7,
31,
-20,
-125,
-37,
-112,
-101,
-119,
56,
2,
-5,
-5,
33,
17,
97,
-59,
-32,
93,
119,
120,
-101,
-114,
-74
] |
Per Curiam:
Plaintiff Donna Schlaikjer seeks reversal of the Court of Appeals’ decision affirming summary judgment in favor of defendant James D. Kaplan, M.D. Schlaikjer sued Kaplan for medical malpractice arising out of surgeries to treat her tracheal stenosis. Kaplan filed a successful motion in limine to prevent Schlaikjer’s subsequent treating physician and designated expert, Joel Cooper, M.D., from testifying about the standard of care. The district court granted the motion in limine because Cooper did not meet the requirements of K.S.A. 60-3412. In the absence of expert testimony on the standard of care, Schlaikjer could not, as a matter of law, carry her burden of proof; and summary judgment in Kap-lan’s favor followed.
The Court of Appeals affirmed the district court’s summary judgment in favor of Kaplan. Schlaikjer now pursues four claims on petition for review to this court: (1) The 50 percent rule for expert witnesses under K.S.A. 60-3412 is inapplicable to treating physicians; (2) K.S.A. 60-3412 violates both the federal and state constitutions; (3) testimony of physicians on their treatment preferences may be used to prove standard of care in medical malpractice cases; and (4) the district court’s grant of summary judgment was improper.
Because we hold that Schlaikjer’s arguments on her first and fourth appellate claims require disposition of this appeal in her favor, we do not reach her constitutional challenges to K.S.A. 60-3412. See Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 519, 242 P.3d 1179 (2010) (citing to Wilson v. Sebelius, 276 Kan. 87, 91, 72 P.3d 553 [2003]) (appellate courts avoid unnecessary constitutional decisions when alternative ground provides relief). We discuss her third claim only because of the possibility that it will arise on remand.
Factual and Procedural Background
Tracheal stenosis is a narrowing of the trachea that causes difficulty in breathing. As part of Schlaikjer s treatment for the condition, Kaplan, a pulmonary and critical care specialist, placed two metal stents in Schlaikjer s trachea—the first in September 2000 and the second in October 2001. The stents caused the development of granulation tissue that further obstructed Schlaikjer s trachea, and she continued to experience difficulty breathing. Kaplan referred Schlaikjer to Cooper when the stents failed to improve Schlaikjer s condition.
Cooper is a thoracic surgeon. He diagnosed Schlaikjer with a rare condition called idiopathic subglottic tracheal stenosis, which is a narrowing of the trachea below the vocal chords. Cooper removed the stents and performed a number of procedures to treat the damage he believed to have been caused by their placement. By March 2006, Cooper’s treatment had fully resolved Schlaikjer’s condition.
Schlaikjer sued Kaplan, alleging medical malpractice; failure to obtain informed consent; and misrepresentation about the ease with which the first stent could be removed, which induced her consent.
Schlaikjer filed her K.S.A. 60-226(b)(6)(B) expert witness designation with tire district court, identifying Cooper as both her treating physician and her only expert witness. Cooper was deposed twice. During those depositions Cooper was asked to detail how he spent his professional time, but he expressed difficulty in providing exact figures. Cooper said he worked primarily in a teaching hospital, and much of his time spent as a teacher and researcher overlapped with time spent on direct patient care.
Specifically, the following exchange occurred during Cooper’s first deposition:
“Q. Over the last two years, have you been engaged in treating patients and working on patients’ cases?
“A. That is correct.
“Q. About how many hours a week over the last couple of years have you been working on patients or patients’ cases?
“A. If—of course my activities involve operating time and seeing patients in an outpatient setting. If you add all of that together, they would probably add up to 25 hours a week.
“Q. Do you also teach medical school?
“A. Yes, I do. I teach primarily residents in training for—for training in general surgeiy and thoracic surgery. My actual medical school activities are limited to one or two lectures a year.
“Q. Okay. So do you put in over 50 percent of your professional time working on patients or seeing patients?
“A. Yes—no. When I calculate my total work hours, the amount of time I devote to clinical practice—remember, we’re talking about an 80 hour or 90 hour workweek. I believe that about 25 percent of my time is direct clinical activity. The remaining 75 percent, there’s administration research and teaching effort which involves clinical conferences and working with residents and fellows.
“Q. How much on average each week are you spending in the classroom strictly teaching?
“A. My classroom is the operating room and the clinic. I do not spend time in die classroom except for rare lectures to medical students once or twice a year.
“Q. Okay. So when you’re teaching, usually you’re in the operating room teaching—
“A. Correct.
“Q. —by operating on a person?
“A. That is correct. Most'—most surgical training is really an apprenticeship.
“Q. Okay. So when you say 25 hours a week on average working on clinical cases, does die include the tíme that you’re teaching by being in a clinical setting working on a patient?
“A. Some of that is teaching time. If I’m in the operating room twice a week for eight hours each tíme, I am with a resident, and so I’m delivering patient care, but at the same time diere’s a teaching component. Additional activities involve seeing patients in an outpatient setting usually without the resident, and then of course there’s time spent with the residents and fellows when diere are no patients involved.
“Q. About what percentage of your time on average each week is involved in administrative!?]
“A. I would say 30 percent of my time has been involved in administrative activities until recentiy.
“Q. Has it been that way over the last five years?
“A. Yes, sir.”
Cooper s second deposition included the following exchange:
“Q. Dr. Cooper, I wanted to ask you about your practice during the two years before September 18, 2000.
“A. Yes.
“Q. The time covering September 18, 1998 through September 18, 2000.
“A. Yes.
“Q- First of all, your profession at that time was as a medical doctor, correct?
“A. Yes, if you’ll allow a surgeon to be so considered.
“Q. During that two-year period, September 18, 1998 through September 18, 2000, was over half of your time spent in actual clinical practice?
“A.... Since the beginning of my career in 19721 have been in full-time practice in an academic setting. So I have never had a limited practice or been a part-time practitioner. I have always been a full-time clinician in an academic setting, understanding that that means that my clinical practice and the time devoted to it comes first. But like all individuals in an academic practice we are not working a 40-hour work week. There is a great deal of additional activity that I do in training and teaching surgeons, doing administration of the division and doing research. So, if you ask me, do I spend full-time in practice, the answer is yes. Do I also, at the same time, have additional activities which extend my work week in hours beyond what one would normally consider a regular work week, the answer is absolutely, as most people do in academic practice.
“Q. During that time that I mentioned, that two-year period before September 18, 2000, did you have a regular schedule in which you saw patients?
“A. Yes, I do. And as the other members of our division, most of us have a similar schedule. I operate two days a week. I saw new patients, that was Monday and Wednesday. I saw new patients on Tuesday morning. I saw emphysema patients on Tuesday afternoon, and I saw follow-up patients on Friday.
“Q. You said you did surgery—what days of the week did you do surgery at that time?
“A. Generally on Mondays and Wednesdays.
“Q. Now, we are talking about that two years before—
“A. Yes, that’s been my schedule for many, many years and has been the schedule of other members of my division, usually two days of operating time and then an additional day, day and-a-half of seeing patients, both outpatients and inpatients.
“Q. Okay. So that would be about four and-a-half days a week you were working directly with patients?
“A. Correct. Remembering that when you’re in an academic institution working with patients is one of the modes by which you teach and train.
“Q. Again, referring to that two-year period before September 18, 2000, did you spend any time teaching in the classroom as opposed to in the operating room for direct patient care[?]
“A. No. My classroom teaching was limited to one or at most two lectures a year'. The teaching that I do is hands-on teaching. My practice is in academic institution. It is in the operating room, training residents and fellows, having them come to see patients with me, malting ward rounds on the patients, and conducting several sessions a week, usually an hour each, in which patient care is discussed, patient cases are presented and discussed in terms of how one approaches the problem and how one approaches diagnosis and treatment of various clinical conditions in thoracic surgery.
“Q. Okay. If we define actual clinical practice to mean any work in your profession as a medical doctor where you either see patients or assist other medical personnel with their patients, including consulting with other medical personnel about their patients, operating or assisting other medical personnel in operating, reviewing files on patients or consulting with others about their patients, that two-year period, can you give us an idea of what percentage of your time as a medical doctor was spent in actual clinical practice?
“A. I know the issue that you’re asking me about, and, again, I’m not trying to be less than forthright. My primary role was as a clinician. But as a clinician and practicing physician in an academic center I had a dual [role], and much of my seeing patients, looking at x-rays, discussing patients, bedside teaching, operating teaching, it revolves around patient care. And is very difficult to sort out what component of that one can attribute to education, and what component you can contribute to clinical care.
“Second of all, I work seven days a week. I write papers. I do editorial work. I generally work a 12 to 14 hour day. There are very few weekend days that I am not there.
“So if you—the difficulty I have in answering your question is that all of those extra hours that one spends are to allow one to have a full-time practice and at the same time conduct the various important roles that one has as an editor, a writer, a reviewer and a researcher. So I spend many hours doing things other than the specifics of clinical practice, and yet I consider myself and have been throughout my career primarily a clinical academic surgeon.
“I know I haven’t answered your question because it is difficult to say how you want me to define my role. Do you want me to tell you all of the hours I work each week and what percentage of those might be nonpatient related activities? Almost everything I do has either direct or indirect influence on patient care.
“Q. During that two-year period that we mentioned, can you give us an idea how much of your time was spent acting as an expert witness in litigation?
“A. Yes. I will choose several cases a year. I would say tire most perhaps is four to five in a year, where people have brought to my attention a case and I will then choose those cases where I feel that I, because of my clinical knowledge and experience, have something to offer in an educational role to both sides. So I would say probably maximum of five in a year, more likely three.
“Q. But my question was about the two-year period before September 18th, 2000.
“A. I think tlrat would be like any other year, diey would perhaps be anywhere from three to four cases a year that I might agree to give an expert opinion on.”
Kaplan filed a motion in limine seeking to exclude any standard of care opinions from Cooper. He argued that Schlaikjer could not show that Cooper met the 50 percent requirement of K.S.A. 60-3412, because Cooper had declined to state affirmatively that he spent at least that much of his professional time in actual clinical practice. Kaplan’s motion also requested that the court exclude any standard of care testimony from the parties’ expert witnesses about their personal treatment preferences.
After a hearing on tire motion, the district court excluded any testimony by Cooper on the standard of care. The court’s written ruling, after stating that a later-filed affidavit of Cooper would not be considered, read in pertinent part:
“Dr. Cooper is obviously a highly regarded physician with eminent qualifications. According to his deposition testimony, from 1998 to 2000 he engaged in 80- to 90-hour workweeks as a professor of surgery at the Washington University School of Medicine in St. Louis, Missouri. During these 80- to 90-hour workweeks, Dr. Cooper would spend ‘about 25 percent of [the] time [in] direct clinical activity.’ The remaining 75 percent of his workweek was spent in ‘administration, research, and teaching effort, which involves clinical conferences and working with residents and fellows.’
“Much of Dr. Cooper’s teaching occurred in a clinical setting while providing medical services to patients. Dr. Cooper did not give an estimate as to the percentage of work hours he spent teaching each week, nor did he estimate what percentage of the hours that he spent teaching were spent in the provision of medical services to patients. He did say, however, that he spent 30 percent of his workweek in administrative activities. Cooper also stated that ‘around 20 percent’ of his workweek was spent in research and as a reviewer for professional journals, and one to two percent was spent in ‘medical legal review’ similar to his work in the present case.
“. . . The deposition testimony . . . fails to indicate how the ‘20 percent’ of his workweek that he would spend ‘in research and as a reviewer for professional journals’ should be allocated between the two activities.
“Thus, . . . Dr. Cooper’s . . . 80- 90-hour workweeks between 1998 and 2000 break down as follows:
(1) About 25 percent of his workweek was spent in direct clinical activity.
(2) Thirty percent was spent in administrative activities.
(3) Twenty percent was spent in research and as a reviewer for professional journals, though what portion of the 20 percent that is attributable to each of the two activities is not specified. The unspecified time ‘in research’ was divided'—at a ratio also left unstated—between ‘clinical research’ and ‘laboratory research.’
(4) One to two percent was spent in ‘medical legal review.’
(5) Some unspecified portion of the 23 to 24 percent remaining would be spent teaching. Of the unspecified time spent teaching, some unspecified portion would be spent with patients.
", . . [Pjlaintiff has not met her burden to show that Dr. Cooper is qualified under K.S.A. 60-3412. Plaintiff has only shown a range of percentages that might be true—and the range begins at a point well below 50 percent. This is not a motion for summary judgment under which the evidence must be construed in the light most favorable to plaintiff. Rather, this is a question of the admissibility of evidence at trial, one in which die evidence sought to be presented to the jury has already been fully taken and set forth in the deposition transcripts.
“. . . Dr. Cooper either does—or does not—meet the test set forth under the statute. If he does not, he may not offer an opinion on standard of care. Plaintiff has not met the burden to show that he meets that standard and, thus, his testimony on that point may not be presented to the jury.”
The district court also ruled that neither party’s physician witnesses could give standard of care testimony on direct examination based on their personal treatment preferences. If, for example, evidence of personal treatment preferences were admitted through cross-examination attacking an expert’s credibility, a limiting instruction might be required.
Kaplan then moved for summary judgment, which the district court granted after rebuffing Schlaikjer’s request that it reconsider its limine ruling. The Court of Appeals affirmed the summary judgment, and we granted Schlaikjer’s petition for review.
Analysis
Applicability of K. S.A. 60-3412 to Treating Physicians
Schlaikjer argues that the district court erroneously applied the requirements of K.S.A. 60-3412 to limit Cooper’s testimony on standard of care. She complains that the statute’s plain language restricts only who may testify as an expert and does not limit the testimony of treating physicians. In addition, she contends that the legislature’s intent when enacting K.S.A. 60-3412 was to prevent testimony from “hired guns” who do not maintain regular clinical practice. In her view, the admissibility of a treating physician’s opinion testimony should be governed instead only by K.S.A. 60-456, which addresses admission of opinion testimony generally.
When a “district court’s decision to admit expert testimony is based upon an interpretation of the statute, the court has de novo review.” Dawson v. Prager, 276 Kan. 373, 376, 76 P.3d 1036 (2003).
“The interpretation of statutes is a question of law over which an appellate court exercises unlimited review. When courts are called upon to interpret statutes, tire fundamental rule governing that interpretation is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. For this reason, when the language of a statute is plain and unambiguous, courts need not resort to statutory construction. Instead, an appellate court is bound to implement tire legislature’s expressed intent. Only where the face of the statute leaves its construction uncertain may the court look to the historical background of tire enactment, tire circumstances attending its passage, the purpose to be accomplished, and tire effect the statute may have under the various constructions suggested.” State v. Arnett, 290 Kan. 41, Syl. ¶ 1, 223 P.3d 780 (2010).
In medical malpractice cases, expert testimony is required to show a deviation from the standard of care if die subject matter falls outside the common, everyday knowledge of the average juror. Dawson, 276 Kan. at 375; Webb v. Lungstrum, 223 Kan. 487, 490, 575 P.2d 22 (1978). If the common knowledge exception applies, “such facts may be testified to by persons other than physicians.” Webb, 223 Kan. at 490; see, e.g., Rule v. Cheeseman, 181 Kan. 957, 317 P.2d 472 (1957) (expert standard of care testimony unnecessary when surgeon left gauze inside patient).
This lawsuit does not arise in a common knowledge situation. The appropriate treatment of tracheal stenosis is not within the experience, education, or everyday knowledge of the average juror. Thus expert testimony on the standard of care is necessary. See Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 3, 5, 574 P.2d 136 (1977) (generally, expert testimony required to establish standard of care, deviation from standard); Funke v. Fieldman, 212 Kan. 524, 530, 512 P.2d 539 (1973) (same); see also Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988) (expert testimony necessary to establish causation). K.S.A. 60-3412 explicitly governs tire qualifications of such experts, providing:
“In any medical malpractice liability action, as defined in K.S.A. 60-3401 and amendments thereto, in which the standard of care given by a practitioner of the healing arts is at issue, no person shall qualify as an expert witness on such issue unless at least 50% of such person’s professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed.” (Emphasis added.)
The plain language of the statute makes no exception for treating physicians. Under the statute, Cooper must have spent at least 50 percent of his professional time within the 2 years before Schlaik-jer s first tracheal stent surgery in actual clinical practice, if Schlaik-jer wishes him to testify as an expert on the applicable standard of care. Williams v. Lawton, 288 Kan. 768, 810, 207 P.3d 1027 (2009); Dawson, 276 Kan. at 375.
In essence, Schlaikjer wants this court to read an exception for treating physicians into K.S.A. 60-3412. But it is not our practice to manufacture judicial exceptions to plain and unambiguous statutory language. In such situations, we do not engage in statutory construction; rather, we implement the legislature’s clearly expressed intent. Arnett, 290 Kan. 41, Syl. ¶ 1.
K.S.A. 60-3412 is not ambiguous. Williams, 288 Kan. at 809 (“[W]e need not delve into legislative history because the language of K.S.A. 60-3412 is not ambiguous.”). It commands that “no person shall qualify as an expert witness” on the standard of care in a medical malpractice liability action “unless at least 50% of such person’s professional time within the two-year period preceding the incident... is devoted to actual clinical practice.” (Emphasis added.) This command covers treating physicians as well as witnesses hired by a litigant for the sole purpose of testifying.
Schlaikjer’s effort to direct us to K.S.A. 60-456 rather than K.S.A. 60-3412 to bolster her case for a treating physician exception is unavailing. K.S.A. 60-456 provides in relevant part:
“(a) If the witness is not testifying as an expert his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by die witness.
“(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.”
Schlaikjer points to authority suggesting that an “expert witness” covered by K.S.A. 60-3412 is typically a medical-legal consultant whose connection with the case began during trial preparation, as opposed to a treating physician or other person with specialized knowledge who was involved with the facts of the case. See Moore v. Associated Material & Supply Co., 263 Kan. 226, 244-45, 948 P.2d 652 (1997) (inspector who investigated flooding could properly testify to his opinions incidental to his knowledge, involvement of the case); Thompson v. KFB Ins. Co., 252 Kan. 1010, 1026-27, 850 P.2d 773 (1993) (medical witnesses who provided treatment to plaintiff properly allowed to testify despite plaintiff s failure to supplement discovery responses in accordance with K.S.A. 60-226[e]); West v. Martin, 11 Kan. App. 2d 55, 58, 713 P.2d 957 (1986) (district court abused its discretion by excluding plaintiff s treating physician’s expert opinion when physician identified but plaintiff did not fully comply with K.S.A. 60-226).
None of these cases is particularly helpful to Schlaikjer, as each centered on sufficiency of compliance with discovery rules in order to determine whether an expert should be permitted to testify. None addressed tire qualifications of the expert under K.S.A. 60-3412; and one, West, predated enactment of that statute.
Moreover, it is a longstanding rule that when there is an apparent conflict between a statute dealing generally with a subject and a statute specifically addressing tire subject, tire specific statute controls. See In re Tax Exemption Application of Mental Health Ass’n of the Heartland, 289 Kan. 1209, 1215, 221 P.3d 580 (2009). K.S.A. 60-456 addresses opinion evidence generally. K.S.A. 60-3412 specifically addresses a far narrower topic: the qualifications required of an expert witness who would testify on the standard of care in a medical malpractice practice case. It is obvious that K.S.A. 60-3412 is the more specific statute and is controlling.
We therefore hold that the requirements of K.S.A. 60-3412 apply to any witness who would give expert testimony on the standard of care in a medical malpractice action, regardless of whether the prospective witness is a treating physician. The district court did not err on tins point of law.
Propriety of Summary Judgment
The district court granted Kaplan’s motion for summary judgment because its motion in limine ruling left Schlaikjer without expert testimony to establish the standard of care necessary to prevail on her causes of action. Thus, although Schlaikjer frames this appellate claim as a challenge to summary judgment, her arguments that the district court misconstrued Cooper’s testimony and/ or misapplied K.S.A. 60-3412 actually require review of the district court’s ruling on the motion in limine. If, as Schlaikjer suggests, the district court misconstrued the testimony or misapplied K.S.A. 60-3412 in its limine ruling, tiren the summary judgment that was its inevitable offspring must be reversed. We therefore employ the standards of review applicable to motions in limine rather than tiróse applicable to motions for summary judgment.
A district court’s decision on a motion in limine involves a two-prong test. To grant the motion, the court must determine that (1) the material or evidence in question will be inadmissible at trial; and (2) a pretrial ruling is justified, as opposed to a ruling during trial, because (a) tire mere offer or mention of the evidence during trial may cause unfair prejudice, confuse the issues, or mislead the jury; (b) the consideration of the issue during trial might unduly interrupt and delay the trial; or (c) a ruling in advance of trial may limit issues and save the parties time, effort, and cost in trial preparation. State v. Shadden, 290 Kan. 803, 816, 235 P.3d 436 (2010).
Schlaikjer’s appellate claim does not question the district court’s performance of its function on the second prong of the motion in limine test. It questions only the admissibility of Cooper’s expert opinion on standard of care. When a district court’s decision on tire admissibility prong is based on interpretation of a statute, an appellate court exercises de novo review of that interpretation. Dawson, 276 Kan. at 376. In our discussion of Schlaikjer’s first appellate claim, we conducted that review and established that the district court was correct about the applicable legal standard under K.S.A. 60-3412.
But the district court also had to malee at least an implicit finding of fact about Cooper’s compliance with that standard, i.e., whether at least 50 percent of his professional time in the 2 years preceding the first stent surgery was devoted to “actual clinical practice.” K.S.A. 60-3412. It is this factual finding with which Schlaikjer actually takes issue. On appeal, we generally review district court findings of fact to determine whether they were supported by substantial competent evidence. See Hodges v. Johnson, 288 Kan. 56, 65, 288 P.3d 1251 (2009). And that is the standard appropriate here. We therefore examine the record before the district court and, now, before us, to decide whether the district court’s finding that Cooper failed to meet the 50 percent standard was error.
Actual clinical practice means “patient care.” However, “patient care” is not limited to care delivered face-to-face or in the patient’s physical presence. It also includes “advising on” or “addressing” care for a patient; each of these activities is encompassed within the definition of “actual clinical practice.” Dawson, 276 Kan. at 376 (citing Endorf v. Bohlender, 26 Kan. App. 2d 855, 865, 995 P.2d 896, rev. denied 269 Kan. 932 [2000]).
Here, Cooper testified that the surgical residencies in which he participated as a teacher during the relevant 2 years were equivalent to hands-on apprenticeships and that his usual “classroom” was the operating theater. Cooper’s administrative work was limited to 30 percent of his professional time. His time spent on research and review of professional journals fluctuated over the course of any given year but did not total more than approximately 20 percent; and tire time he spent on medical-legal consulting reached no more than 1 percent to 2 percent.
As the district court acknowledged, some portion of Cooper’s research time was categorized as clinical. In other words, it facilitated patient care. Cooper also testified that he was always a “full-time clinician in an academic setting,” that he was in the operating room 2 full days a week, that he saw new patients one morning a week, that he saw emphysema patients one afternoon a week, and that he saw follow-up patients on yet another day each week. In short, “almost everything” Cooper did during his 80- to 90-hour work weeks had “either direct or indirect influence on patient care.”
On this record, we simply fail to see substantial competent evidence to support the district court’s fact finding that Cooper did not spend at least 50 percent of his time in actual clinical practice. His testimony supported at least 3½ days to 4 days of each 7-day week on direct patient care. Hands-on resident supervision and consultation and his own clinical research necessary to provide patient care accounted for still more of his professional workweek. In our view, evaluation of whether he met the 50 percent requirement of K.S.A. 60-3412 required more than adding his imprecise estimates of 30 percent, 20 percent, and 1 percent to 2 percent. It required a holistic reading of his description of his clinical practice in an academic setting, including all of his varied patient care activities.
Because Cooper’s testimony on the applicable' standard of care should have been ruled admissible by the district court, Kaplan’s motion for summary judgment should have been denied.
Admissibility of Standard of Care Evidence on Physician Treatment Preferences
Finally, Kaplan sought to exclude expert standard of care testimony based on physician treatment preferences. Again, we address this issue because of the possibility that it will arise on remand.
The district court agreed with part of Kaplan’s motion in limine argument on this issue, ruling that such testimony could not be introduced by either party on direct examination of its expert witnesses to prove the standard of care. The court held open the possibility that treatment preferences could be explored on cross-examination, however, in order to test credibility. In such an event, the district court stated, a limiting instruction might be in order.
We agree with the district court’s approach, as it is consistent with our decision in Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 50, 510 P.2d 190 (1973).
Karrigan was a medical malpractice action based on post-operative care, in which the district court entered a directed verdict because the plaintiff had not introduced expert testimony to estab lish the applicable standard of care or breach of it. The plaintiff s witness said only that it was his practice to check post-operative patients more frequently than the defendant had. He stopped short of testifying that defendant’s methods constituted unsound medical practice. Such evidence was inadmissible and “insufficient to establish . . . the ‘degree of learning and skill ordinarily possessed by members of his profession and of his school of medicine in the community where he practices or similar communities.’ ” Karrigan, 212 Kan. at 50.
The Court of Appeals followed our Karrigan rationale in Cox v. Lesko, 23 Kan. App. 2d 794, 797-99, 935 P.2d 1086 (1997), aff'd in part and rev’d in part on other grounds 263 Kan. 805, 953 P.2d 1033 (1998). In that case, the plaintiff claimed it was error for the district court to restrict her cross-examination of the defendant’s expert on his preferred method of treatment. She contended that such evidence would have been relevant to establish the applicable standard of care in treating the type of injury she sustained. Cox, 23 Kan. App. 2d at 797-98.
The Court of Appeals disagreed:
“To allow [the plaintiff] to cross-examine [the expert] on how he preferred to treat these types of shoulder injuries would unduly emphasize one approach over another and was not relevant in determining whether Dr. Lesko deviated from the appropriate standard of care.” Cox, 23 Kan. App. 2d at 798-99.
See also Nold v. Binyon, 272 Kan. 87, 100, 31 P.3d 274 (2001) (“Cox found it improper for a doctor to testify regarding his or her own preferred method of treatment in determining whether another doctor deviated from the appropriate standard of care.”).
In this case, the district court was correct to grant Kaplan’s motion in limine insofar as it addressed physician preference testimony admitted on direct examination for the puipose of proving the applicable standard of care. It may be that such testimony is admissible for another purpose, for example, as the district court pointed out, on cross-examination to impeach credibility; but we decline to further address this theoretical possibility at this procedural juncture in this particular case.
Conclusion
The district court was correct in ruling that treating physician Cooper s expert testimony on standard of care was subject to the 50 percent requirement in K.S.A. 60-3412. However, the summary judgment of die district court in Kaplan s favor must be reversed and die case remanded for furdier proceedings because the record does not support the district judge’s ruling that Cooper failed to meet the 50 percent requirement. We also hold that the district court was correct in its ruling on the inadmissibility of direct testimony about physician treatment preferences to prove the applicable standard of medical care. This holding will guide the parties’ presentation of evidence at any eventual trial, as well as inform the district judge’s instructions to the jury. Having granted Schlaikjer the relief she sought through our interpretation and application of the statute, we do not reach her constitutional challenges to it.
The judgment of the Court of Appeals is reversed. The judgment of the district court is reversed, and die case is remanded for further proceedings consistent with this opinion.
Davis, C.J., not participating.
Larry T. Solomon, District Judge, assigned. | [
80,
-22,
-67,
111,
10,
-95,
48,
26,
81,
-89,
39,
81,
-17,
-55,
-115,
46,
-89,
61,
65,
97,
-42,
-77,
95,
-55,
-42,
-13,
19,
-57,
-69,
-50,
-12,
-3,
76,
120,
-126,
-43,
102,
-118,
-99,
80,
-116,
4,
-104,
-13,
89,
-63,
-80,
-18,
82,
3,
49,
94,
-93,
41,
55,
-57,
-24,
56,
-5,
-67,
-31,
-112,
-118,
-123,
111,
-123,
-94,
22,
-100,
46,
-40,
38,
-98,
49,
65,
-20,
48,
-26,
-126,
-107,
43,
-71,
4,
99,
98,
-95,
25,
-19,
48,
-68,
15,
12,
15,
-121,
-101,
90,
-38,
-88,
-74,
-67,
116,
114,
31,
124,
-20,
88,
95,
-67,
14,
-121,
-44,
-71,
11,
116,
-124,
99,
-17,
-53,
32,
81,
-35,
-16,
94,
-41,
59,
-65,
122,
-68
] |
The opinion of the court was delivered by
Nuss, C.J.:
Stanley L. Shrader appeals from an administrative action by the Kansas Department of Revenue (KDOR) suspending his driving privileges for 1 year under K.S.A. 2007 Supp. 8-1014(a). Per this statute, privileges can be suspended for refusing to take a breath test the arresting officer is authorized to request under K.S.A. 2007 Supp. 8-1001(b).
The district court relied upon State v. Counseller, 22 Kan. App. 2d 155, 912 P.2d 757, rev. denied 260 Kan. 997 (1996), to affirm the administrative suspension. But the Shrader Court of Appeals panel disagreed with their colleagues on the Counseller panel, reversed the district court, and reinstated Sloop’s driving privileges. Shrader v. Kansas Dept. of Revenue, 45 Kan. App. 216, 247 P.3d 681 (2011). So we granted KDOR’s petition for review under K.S.A. 20-3018(b) to resolve the split between the two panels.
We essentially agree with the Shrader panel. We conclude the officer’s authority under K.S.A. 2007 Supp. 8-1001(b)(l) to request Shrader to take the breath test depends upon an arrest for an alcohol-related driving offense—-rather than simply an arrest for any offense involving operation of a motor vehicle. Shrader was not arrested for an alcohol-related driving offense but for driving on a suspended license. So Shrader’s refusal to take a breath test the officer had no statutory authority to request cannot be the basis for suspending his driving privileges under K.S.A. 2007 Supp. 8-1014(a). Because we affirm the Shrader panel, we must also reverse Counseller, reverse the district court, and reinstate Shrader’s driving privileges.
Facts
The essential facts are straightforward. Oberlin Police Officer Bradley Burmaster witnessed Stanley Shrader execute a left turn without a turn signal at about 1:30 a.m. on June 6,2008. Burmaster recognized Shrader and knew that he was driving on a suspended license. Burmaster activated his lights and stopped Shrader’s van as Shrader pulled into his driveway.
Shrader exited his van and was a little unsteady on his feet while taking several steps to close the van door. He then stared directly at Burmaster and started walking toward his house. Burmaster approached Shrader and detected a “moderate” smell of alcohol on his breath. According to Burmaster, Shrader “did not seem to be aware that I was conducting a traffic stop, although I was right behind him in his driveway.” In response to Burmaster’s questions, Shrader admitted consuming a couple of drinks earlier that night.
Burmaster requested a license and proof of insurance. Shrader returned to his van, produced a black briefcase, and sorted through its contents. He eventually produced an expired proof of insurance and a driver’s license. Shrader told Burmaster that the license was “no good” and eventually said that the license was suspended.
After Shrader produced the expired insurance card, Burmaster asked Shrader to stand near his van while he called the stop into dispatch. Shrader then asked Burmaster to “just go ahead and take [him] in.” Burmaster declined and asked Shrader to wait for about 5 minutes while he called for backup.
After backup arrived, Burmaster asked Shrader to perform field sobriety tests. Shrader responded, “Let me ask you this, what am I being arrested for?” Burmaster replied, “At this point you’re not under arrest, but, at the very least, driving on a suspended license is an arrestable offense.” Shrader then stated, “Go ahead and take me in, then.”
Instead of arresting Shrader, Burmaster continued trying to persuade him to take a field sobriety test and a preliminary breath test. Shrader declined. Burmaster then arrested Shrader, placed him in the back of the police car, and drove him to the station. There Burmaster read Shrader the implied consent advisories set out at K.S.A. 2007 Supp. 8-1001 and asked him to submit to an eviden-tiary breath test as authorized under K.S.A. 2007 Supp. 8-1001(b). Shrader refused the evidentiary breath test, an Intoxilyzer 8000.
The KDOR revoked Shrader’s driving privileges under K.S.A. 2007 Supp. 8-1014(a) for his refusal to submit to the breath test. Shrader requested judicial review. At tire district court hearing, when Burmaster was asked why he arrested Shrader, he responded, “For driving while suspended.” The district court ultimately affirmed Shrader s suspension, relying upon Counseller, 22 Kan. App. 2d 155.
The Court of Appeals panel concluded that under the plain language of K.S.A. 2007 Supp. 8-1001(b) a driver must be arrested for an alcohol-related driving offense before the officer is authorized to request the breath test. Because the panel concluded there was insufficient evidence to conclude that Shrader was arrested for such an offense, e.g., driving under the influence of alcohol (DUI), it reversed the district court and reinstated Shrader’s driving privileges. Shrader, 45 Kan. App. 2d at 224.
We granted KDOR’s petition for review. Our jurisdiction is under K.S.A. 60-2101(b) and K.S.A. 20-3018(b).
Analysis
Issue 1: Officer Bunnaster did not meet the conditions necessary to authorize him to request the breath test under K. S.A. 2007 Supp. 8-1001(b).
Standard of Review
The parties disagree whether Shrader was arrested for an offense required under K.S.A. 2007 Supp. 8-1001(b) in order to authorize an officer to request the evidentiaiy breath test. Statutoiy interpretation is a question of law, and this court’s review is unlimited. Accordingly, we are not bound by the lower courts’ interpretations. State v. Hopkins, 295 Kan. 579, Syl.¶ 1, 285 P.3d 1021 (2012).
Discussion
By Kansas statute, any person who operates or attempts to operate a vehicle in this state is deemed to have given consent to submit to one or more tests of the person’s blood, breath, urine, or other bodily substance to determine the presence of alcohol or drugs. K.S.A. 2007 Supp. 8-1001(a). Subsection (b) of that statute establishes the conditions, some in the alternative, that a law enforcement officer must meet to obtain authority for requesting such tests. Because Officer Burmaster arrested Shrader and claimed he had reasonable grounds to request the later breath test (the Intoxilyzer 8000), two of the statute’s conditions apply to this case:
“(b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a) if [First] the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both . . . and [Second] one of the following conditions exists: (1) the person has been arrested or otherwise taken into custodyfor any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, in violation of a state statute or a city ordinance . . . .” (Emphasis added.) K.S.A. 2007 Supp. 8-1001(b).
Shrader challenges the existence of both of these italicized conditions, which is within the scope of the matters allowed at the administrative hearing and thus within the reviewing courts’ purview. Under K.S.A. 2007 Supp. 8-1020(h)(l), those matters are “(A) A law enforcement officer had reasonable grounds to believe tire person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both,” and “(B) the person was in custody or arrested for an alcohol or drug related offense.”
At oral arguments, the parties addressed a number of points concerning both of these conditions. But we only need to examine one of Shrader’s contentions because we agree with him—and it is dispositive. And here is why.
We begin by acknowledging Officer Burmaster arrested and handcuffed Shrader at the scene. Under our facts the arrest itself was a necessary condition for Burmaster to later request Shrader to take the Intoxilyzer test at the station. See K.S.A. 2007 Supp. 8-1001(b) (“the person has been arrested... for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both”).
Today we decided in Sloop v. Kansas Dept. of Revenue, No. 103,334, that the arrest required in 8-1001 (b) must be a lawful one in order to authorize the arresting officer to request the breath test. In Shrader’s case, there is no dispute about the lawfulness of his arrest. Rather, the dispute is whether Shrader’s lawful arrest for driving on a suspended license can meet the statutory condition required to authorize the test request.
Like the district court, the KDOR relies upon Counseller, 22 Kan. App. 2d 155, to claim the officer authorization. In Counseller the driver was arrested for reckless driving and taken to the sheriff s department. There, the deputy smelled alcohol on Counseller’s breath and, after providing the implied consent advisories, requested he perform a breath test. Counseller’s test produced a result of .197. He was then additionally charged with the offense of driving under the influence of alcohol per K.S.A. 1995 Supp. 8-1567.
The district court in Counseller essentially interpreted K.S.A. 1995 Supp. 8-1001(b)(1) to allow suspension for refusal to take a test “only when a driver is arrested or otherwise taken into custody for an offense involving the operation of a motor vehicle while under tire influence of intoxicating liquor.” 22 Kan. App. 2d at 156. Because the deputy did not arrest Counseller for an alcohol-related traffic offense, the court concluded his implied consent advisory was coercive and invalid.
The Court of Appeals panel reversed the district court. It too interpreted K.S.A. 1995 Supp. 8-1001 (b). Although not identical to the current statute, it contained the same language relevant to our issue on appeal. The panel concluded:
“The language of the statute does not support the construction given it by the district court. Subsection (b)(1) [now (b)(1)(A)] of the statute requires that before a test is requested two conditions must be met: (a) an arrest arising out of the operation of a vehicle for any offense in violation of a state statute or a city ordinance and (b) reasonable grounds to believe the driver was under the influence.” (Emphasis added.) Counseller, 22 Kan. App. 2d at 158.
The Counseller panel explained its holding as follows:
“The district court’s interpretation of ‘[t]he person has been arrested . . . for any offense involving operation ... of a vehicle while under the influence,’ would render wholly redundant the requirement that the ‘officer has reasonable grounds to believe tire person was operating a vehicle while under the influence of alcohol.’ K.S.A. 1995 Supp. 8-1001(b)(l). While ‘reasonable grounds’ is synonymous in meaning with ‘probable cause,’ [citation omitted] one may have reasonable grounds to believe that a person was operating a vehicle under the influence but not have the probable cause required to arrest under K.S.A. 1995 Supp. 8- 1001(b)(1). An arresting officer may formulate reasonable grounds sufficient to request a test under the statute before or after arrest and, under K.S.A. 1995 Supp. 8-1001(b)(2), without any arrest whatsoever.
“Additionally, the phrase ‘any offense involving operation ... of a vehicle while under the influence of alcohol’ in K.S.A. 1995 Supp. 8-1001(b)(1) makes clear that the statute’s reach is not limited to motorists arrested for a per se alcohol or drug offense that would impair one’s ability to operate a motor vehicle safely.” (Emphasis added.) Counseller, 22 Kan. App. 2d at 158-59.
The panel further rejected Counseller’s argument that its conclusion was inconsistent with the plain language of K.S.A. 1995 Supp. 8-1001(h)(l). That subsection provided, in relevant part, that the officer must certify after a test refusal that “ The person was in custody or arrested for an alcohol or drug related offense.’ ” 22 Kan. App. 2d at 159.
In rejecting this argument, the Counseller panel reasoned:
“Counseller assumes from the text of K.S.A. 1995 Supp. 8-1002(h) that‘arrested for an alcohol or drug related offense’ means an arrest for driving under the influence or some other specific category of criminal statutes. We disagree. We believe the determination as to whether an offense toas alcohol or drug related may be made subsequent to an arrest. There is nothing within the text of the statute that suggests otherwise, and Counseller has been unable to provide any other authority for his assertion.” Counseller, 22 Kan. App. 2d at 159-60.
The Shrader panel interpreted Counseller to mean that an arrest for “any offense” involving the operation or attempted operation of a motor vehicle would satisfy the requirement in K.S.A. 2007 Supp. 8-1001(b)(l) that the defendant was arrested for an alcohol- or drug-related offense. 45 Kan. App. 2d at 223. But the Shrader panel disagreed with its Counseller colleagues:
“We read the plain language of K.S.A. 2007 Supp. 8-1001(b)(l) to require an arrest for an alcohol-related driving offense rather than simply requiring an arrest for any offense involving operation of a motor vehicle.” (Emphasis added.) 45 Kan. App. 2d at 223.
We agree with the Shrader panel. The fundamental rule of statutory interpretation to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. Its intent is to be derived in the first place from the words used. State v. Hendrix, 289 Kan. 859, Syl. ¶ 2, 218 P.3d 40 (2009). When statutory language is plain and unambiguous, there is no need to resort to statutoiy construction. Steffes v. City of Lawrence, 284 Kan. 380, Syl. ¶ 2, 160 P.3d 843 (2007). An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there. 284 Kan. 380, Syl. ¶ 2.
The condition at issue that must be met before the officer is authorized to request the breath test under K.S.A. 2007 Supp. 8-1001(b) is stated by the legislature as follows:
“[T]he person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both,... in violation of a state statute or a city ordinance.”
The Counseller panel’s interpretation of this same phrase—drat the mandatory condition is instead an “arrest arising out of the operation of a vehicle for any offense in violation of a state statute or a city ordinance”—ignores the statute’s plain language. More specifically, it reads the limiting language out of the statute.
This interpretation may have reflected tire Counseller panel’s conclusion that the district court’s reading of K.S.A. 1995 Supp. 8-1001(b)(1) (“the person has been arrested . . . for any offense involving operation ... of a vehicle while under the influence”) was redundant with die condition mentioned earlier in subsection (b). 22 Kan. App. 2d at 158. More specifically, that condition in subsection (b) somewhat similarly states that “the officer has reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol.”
We not only conclude that the Counseller panel was wrong to disregard the plain language of 8-1001(b)(l), but we also conclude that the two provisions—(b) and (b)(1)—can peacefully coexist. Redundancy, if any, is legislatively purposeful. Simply put, under K.S.A. 8-1001(b), if (1) the officer believes the person is operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, and (2) tire officer arrests the person for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, then (3) the officer becomes authorized to request the test.
KDOR appears to take an additional approach in urging us to affirm the district court’s decision upholding the suspension. This approach acknowledges that, while Shrader was arrested for driving on a suspended license, in the alternative he was “otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both.” See K.S.A. 2007 Supp. 8-1001(b)(l) (“the person has been arrested or otherwise taken into custody”).
The problem is this alternative approach was not sufficiently presented to the Court of Appeals panel, which probably explains why the panel’s opinion does not mention it. We additionally observe that Shrader has never addressed such an approach in any of his appellate briefs, which suggests he and his counsel did not consider it sufficiently presented either. Considering these factors together, we conclude the panel was given no fair opportunity to address it. So it is not preserved for our review. Nor can it be raised for the first time at this level. See Osterhaus v. Toth, 291 Kan. 759, 794, 249 P.3d 888 (2011) (citing Telegram, Publishing Co. v. Kansas Dept. of Transportation, 275 Kan. 779, 794, 69 P.3d 578 [2003]).
Similarly, on October 23, 2012, the day before oral arguments, KDOR filed a letter with this court under Supreme Court Rule 6.09(b) (2012 Kan. Ct. R. Annot. 49). The letter “advises the court of the following significant and relevant authority” and mentions a statute, K.S.A. 2011 Supp. 8-1002(a)(l)(B), which has been the law for more tiran 1 year. It additionally cites an October 5, 2012, decision and an October 19,2012, decision by the Kansas appellate courts. Of the three authorities provided, only the latter decision is timely submitted for consideration by this court. Rule 6.09(b)(1)(A) provides:
“(A) Before oral argument. Not later than 14 days before oral argument, aparty may advise the court, by letter, of citation to persuasive and controlling authority that has come to the party’s attention after die party’s last brief was filed. If a persuasive or controlling authority is published less than 14 days before oral argument, a party promptly may advise the court, by letter, of the citation.” (Emphasis added.)
The October 19 decision, Olson v. Kansas Dept. of Revenue, No. 107,153, 2012 WL 5205620 (Kan. App. 2012) is an unpublished decision from the Court of Appeals. KDOR cites tire decision because Olson cites Counseller, 22 Kan. App. 2d 155, to support its holding. Because we have overruled Counseller, we find Olson unpersuasive.
The Shrader panel summarized well: “Because the conditions necessary to request testing under K.S.A. 2007 Supp. 8-1001(b) had not been met when Officer Burmaster requested that Shrader submit to a breath alcohol test, the district court erred in affirming the administrative suspension of Shrader s license.” 45 Kan. App. 2d at 224.
The judgment of tire Court of Appeals is affirmed. The judgment of the district court is reversed, and Shrader s driving privileges are reinstated.
Moritz, J., not participating.
Van Hampton, District Judge, assigned. | [
-112,
-22,
-38,
-114,
25,
64,
-78,
-76,
81,
-105,
119,
115,
-89,
-54,
5,
59,
-5,
125,
53,
25,
-41,
-78,
87,
-103,
118,
-13,
-37,
-34,
-5,
-49,
116,
-84,
15,
-80,
-102,
21,
4,
-53,
-91,
88,
-114,
6,
-71,
113,
80,
-63,
32,
105,
-45,
15,
-15,
-97,
-61,
60,
24,
-49,
-116,
76,
-37,
-123,
-47,
-16,
-103,
-123,
-5,
20,
-94,
20,
-100,
-123,
-44,
51,
-116,
57,
65,
104,
115,
-122,
-48,
-12,
15,
-101,
-88,
-121,
98,
97,
25,
-83,
-84,
-83,
12,
56,
15,
38,
-103,
89,
99,
-92,
-106,
-65,
122,
22,
47,
-4,
-18,
84,
93,
120,
15,
-54,
-68,
-111,
-49,
53,
-122,
3,
-17,
65,
48,
97,
-17,
-12,
94,
-60,
114,
-69,
-26,
-76
] |
The opinion of the court was delivered by
Beier, J.:
Defendant Stacy Robert Newcomb appeals his convictions on one count of rape and one count of aggravated indecent liberties for his conduct with his third-grade stepdaughter, as well as his two consecutive Jessica’s Law hard 25 life sentences.
Newcomb argues: (1) Rape is an alternative means crime, and the State’s proof of at least one of the means on which the jury was instructed was insufficient; (2) aggravated indecent liberties is an alternative means crime, and the State’s proof of at least one of the means on which the jury was instructed was insufficient; (3) his Jessica’s Law hard 25 life sentence for rape is disproportional under § 9 of the Bill of Rights of the Kansas Constitution; and (4) his Jessica’s Law hard 25 life sentence for aggravated indecent liberties is disproportional under § 9.
We hold that none of Newcomb’s arguments has merit, and we affirm his convictions and sentences.
Factual and Procedural Background
Newcomb’s 8-year-old stepdaughter, K.S., told her school friends that Newcomb had been touching her private parts and having sex with her. A mother of one of the friends learned of the allegation and called the police. After an investigation, the State charged Newcomb with two counts of aggravated indecent liberties with a child.
During Newcomb’s preliminary hearing, the State presented evidence that Newcomb had penetrated K.S.’s vagina with his penis. Then the court, on its own motion, amended the first count to charge rape rather than aggravated indecent liberties.
At trial, K.S. testified that Newcomb touched her inappropriately, inserted his “wiener” into her “front butt,” and fondled her in the bathtub and while they watched “inappropriate” movies. K.S. also testified that Newcomb told her not to tell anyone about the abuse.
Newcomb testified in his own defense and denied all of the allegations. After the jury found Newcomb guilty on both counts and before sentencing, Newcomb filed a motion challenging the constitutionality of Jessica’s Law. The district court judge made factual findings under the three-part test enunciated in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), and determined that Jessica’s Law was constitutional.
Discussion
Rape as an Alternative Means Crime
Newcomb’s first argument raises an issue of statutory interpretation. “Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal.” State v. Brown, 295 Kan. 181, 193-94, 284 P.3d 977 (2012).
A criminal defendant has a statutory right to a unanimous jury verdict. See K.S.A. 22-3421; State v. Rojas-Marceleno, 295 Kan. 525, Syl. ¶ 13, 285 P.3d 361 (2012); State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010). In State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994), this court explained:
“ ‘In an alternative means case, where a single offense may be committed in more tiran one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which tire crime was committed so long as substantial evidence supports each alternative means.’ ”
“Because jury unanimity is not required as to the means by which an alternative means crime is committed, unanimity instructions are not required in alternative means cases.” Rojas-Marceleno, 295 Kan. at 544. Nevertheless, the State must meet a “super-sufficiency of the evidence” requirement, i.e., present sufficient evidence to permit a jury to find each means of committing the crime beyond a reasonable doubt. Rojas-Marceleno, 295 Kan. at 544. If tire State fails to present sufficient evidence to support each means, reversal is required. Rojas-Marceleno, 295 Kan. at 544.
“Ordinarily, the first step in analyzing an alternative means case is to determine whether the case truly presents an alternative means issue.” Rojas-Marceleno, 295 Kan. at 544. Not all statutoiy alternatives are alternative means. See Rojas-Marceleno, 295 Kan. at 544-45; Brown, 295 Kan. at 193 (“Identifying an alternative means statute is more complicated than spotting the word ‘or.’ ”). “ ‘The mere use of a disjunctive in a statute does not an alternative means crime make.’ ” Brown, 295 Kan. at 193 (quoting State v. Peterson, 168 Wash. 2d 763, 770, 230 P.3d 588 [2010]).
K.S.A. 21-3502(a)(2) provides that “[r]ape is . . . sexual intercourse with a child who is under 14 years of age.” Sexual inter course is defined under K.S.A. 21-3501(1) as “any penetration of the female sex organ by a finger, the male sex organ or any object.” Newcomb argues that K.S.A. 21-3501(1) sets out three distinct ways of committing the crime of rape: penetrating a female victim’s sex organ with (1) a finger, (2) the male sex organ, or (3) any object.
Newcomb argues that his conviction must be reversed because the State did not present any evidence that he penetrated K.S.’s vagina with his finger or any object that is neither his finger nor his penis.
This court rejected the same argument in State v. Britt, 295 Kan. 1018, 1027, 287 P.3d 905 (2012), where we said:
“The actus reus of the sexual intercourse reference in the rape statute is ‘penetration.’ The alternative methods of penetrating the female sex organ set forth in the statute—by a finger, the male sex organ, [] or an object—merely describe ‘the factual circumstances in which a material element may be proven,’ i.e., the different ways in which penetration may occur. Brown, 295 Kan. at 196-97, 284 P.3d at 990. Thus, these are not alternative means, but merely options within a means, and the inclusion of this language in the jury instructions does not make this an alternative means case triggering concerns of jury unanimity.” Britt, 295 Kan. at 1027.
Britt controls here. Newcomb is not entitled to reversal of his rape conviction, because rape is not an alternative means crime.
Aggravated Indecent Liberties as an Alternative Means Crime
Under K.S.A. 2010 Supp. 21-3504(a)(3)(A), aggravated indecent liberties with a child is defined as “[a]ny lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both.”
Newcomb argues this statute required the State to present evidence that he acted with intent to arouse or satisfy both his sexual desires and K.S’s sexual desires. Because the State did not prove that he acted with the intent to arouse or satisfy K.S.’s sexual desires, Newcomb contends, his conviction must be reversed.
Again, we have rejected Newcomb’s argument. See Britt, 295 Kan. at 1026; State v. Brown, 295 Kan. at 202.
“[Tjhe phrase ‘either the child or the offender, or both’ under K.S.A. 21-3504(a)(3)(A) does not state a material element of the crime but merely describes a secondary matter, die potential yet incidental objects of the offender’s required intent. 295 Kan. at 202. Thus, tire phrase outlines options within a means, and describes factual circumstances that may prove the distinct, material mental state element of the crime.
“Because the phrase ‘either the child, the offender, or both’ in K.S.A. 21-3504(a)(3)(A) does not state material elements of the crime, but merely outlines options within a means, the jury instruction reiterating these options did not include alternative means of committing the charge of aggravated indecent liberties.” Britt, 295 Kan. at 1026.
Newcomb is not entitled to reversal of his aggravated indecent liberties conviction. Aggravated indecent liberties is not an alternative means crime.
Jessicas Law Hard 25 Life Sentence for Rape under § 9
When considering a § 9 case-specific proportionality challenge to a sentence, a district judge must make factual findings and draw conclusions of law. State v. Woodard, 294 Kan. 717, 720, 280 P.3d 203 (2012) (citing State v. Ortega-Cadelan, 287 Kan. 157, 160-161, 194 P.3d 1195 [2008]). “These inquiries invoke a bifurcated standard of review: without reweighing tire evidence, the appellate court reviews the factual underpinnings of the district court’s findings under a substantial competent evidence standard, and the district court’s ultimate legal conclusion drawn from those facts is reviewed de novo.” Woodard, 294 Kan. at 720.
“Under § 9 of the Kansas Constitution Bill of Rights, a punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” State v. Gomez, 290 Kan. 858, Syl. ¶ 9, 235 P.3d 1203 (2010). Whether a sentence is “cruel or unusual” under § 9 because of its length is controlled by a three-part test, first outlined in State v. Freeman, 223 Kan. at 367. This three-part test weighs the following:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to tire degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injuiy resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” 223 Kan. at 367.
No single factor under the Freeman test controls the outcome. State v. Berriozabal, 291 Kan. 568, 591, 243 P.3d 352 (2010); State v. Mondragon, 289 Kan. 1158, 1163, 220 P.3d 369 (2009). “[Cjonsideration should be given to each prong of the test.” Ortega-Cadelan, 287 Kan. at 161. Still, in some cases, one factor may weigh so heavily that it directs the final conclusion. 287 Kan. at 161.
Here, under the first prong of the Freeman test, the district judge found that Newcomb was convicted of one count of rape and one count of aggravated indecent liberties with a child; the victim was his 8-year-old stepdaughter; Newcomb committed numerous sexual acts against the victim over a 4-month period; Newcomb had a prior California conviction for touching an 11-year-old girl’s genitalia; K.S. was “placed in an atmosphere of fear in which she was forced to comply with Newcomb’s criminal wishes”; New-comb’s crimes were ones of “extreme sexual violence,” as defined by K.S.A. 21-4716(c)(2)(F)(i)(c); and Newcomb was the sole culpable person in the commission of the crimes. The district judge also stated that the penological purpose of Jessica’s Law to protect society from sexual predators would be served in this case.
Newcomb does not make much of an issue over these findings on appeal, focusing on what he asserts was the State’s failure to present “evidence that either of the crimes in the present case w[as] particularly violent.” He notes, in particular, that there was no evidence K.S. “suffered any physical injuries as a result of either crime” and that he did not use a weapon as a tool of persuasion.
We have previously rejected this line of argument, see State v. Seward, No. 104,098, (this day filed), and we do so again here. Rape is among the crimes defined as sexually violent under K.S.A. 22-3717(d)(2)(A), and the rape of a child under 14 is a crime of “extreme sexual violence” under K.S.A. 21-4716(c)(2)(F)(i)(c). That a sexually violent crime could have been committed more violently is legally insignificant, and the district judge’s factual findings are supported by substantial competent evidence in the record. The first prong of the Freeman test does not weigh in New-comb’s favor on the rape count.
Under the second Freeman prong, the court compares New-comb’s sentence for rape with the penalties imposed for “more serious crimes” in Kansas. See Freeman, 223 Kan. at 367.
Newcomb argues that he “would have been ‘better off,’ ” from a sentencing perspective, “had he murdered K.S.” This court addressed an identical argument in Woodard in the context of aggravated indecent liberties with a child:
“This argument suffers from several flaws. In the first place, it assumes that murderers necessarily receive more lenient sentences in Kansas than violators of Jessica’s Law. This is not the case. In fact, the Kansas Criminal Code sets out a list of transgressions that constitute capital murder, which is an off-grid offense. K.S.A. 21-3439. Capital murder is subject to punishment by death. K.S.A. 21-4624. The penalty for homicide in Kansas may thus be much more severe than die penalties under Jessica’s Law. See K.S.A. 21-4638; K.S.A. 21-4643. The fact that the penalty for certain categories of homicide may be less severe than the penalties for other, nonhomicide crimes does not automatically render die penalties for the nonhomicide crimes unconstitutional. There is no strict linear order of criminal activity that ranks all homicides as the most serious crimes and all nonhomicide crimes as less serious, with the corresponding penalties necessarily ranking in diminishing durations of imprisonment.
“Furthermore, as die State points out, Jessica’s Law is not the only Kansas statute that provides for more severe penalties for nonhomicide crimes than for certain categories of homicide. Compare, e.g., rape, K.S.A. 21-3502, and aggravated kidnapping, K.S.A. 21-3420, which are severity level 1 offenses, with reckless second-degree murder, K.S.A. 21-3402(b), which is a severity level 2 offense.” Woodard, 294 Kan. at 723-24.
We concluded in Woodard that the penalty for aggravated indecent liberties with a child was not disproportionately harsh when compared with the punishments imposed for more serious offenses in Kansas. Woodard, 294 Kan. at 724. We also have stated today in Seward that rape is undeniably a more invasive and serious crime than aggravated indecent liberties, and it thus follows from the decision in Woodard that the penalty for rape under Jessica’s Law is not disproportionately harsh when compared with Kansas sen tences for homicide offenses. See Seward, No. 104,098, slip op. at 12; Britt, 295 Kan. at 1034-35. This holding from Seward controls here.
Also on the second Freeman prong, Newcomb asks us to consider a 2008 Kansas Sentencing Commission Proportionality Subcommittee’s Report on Proposed Improvements and Modifications to Kansas Sentencing Laws. As explained in Seward, in which the defendant cited two such reports, this argument is unpersuasive. Seward, No. 104,098, slip op. at 12.
The second prong of the Freeman analysis does not favor New-comb’s argument that his Jessica’s Law sentence for rape is unconstitutional under § 9.
The third prong of Freeman requires comparison of the penalty for rape under Jessica’s Law and the penalties for the “same offense” in other jurisdictions. Freeman, 223 Kan. at 367. We fully discussed this prong of Freeman for the crime of rape under Jessica’s Law in Seward, and no productive purpose would be served by repeating that discussion here. See Seward, 104,098, slip op. at 13-15. Suffice it to say that we reject Newcomb’s argument on the third prong of Freeman.
Because none of the Freeman factors weighs in Newcomb’s favor, we hold that the hard 25 life sentence he received for rape of his stepdaughter is not disproportional under § 9 of the Kansas Constitution Bill of Rights.
Jessica’s Law Hard 25 Life Sentence for Aggravated Indecent Liberties under § 9
All of our analysis on the first Freeman prong for Newcomb’s Jessica’s Law sentence for rape is equally applicable to his Jessica’s Law sentence for aggravated indecent liberties. The first prong weighs against him.
Likewise, to the extent Newcomb’s arguments on the second prong of the Freeman test for his aggravated indecent liberties conviction mirror those for his rape conviction, we are unpersuaded.
Newcomb does advance an additional argument, however, that we must address: He asserts that his aggravated indecent liberties sentence is suspect under the second Freeman prong because it is identical to his sentence for rape. Newcomb is correct that rape is a more serious, more invasive crime than aggravated indecent liberties. See Seward, 104,098, slip op. at 12; Britt, 295 Kan. at 10. But that is not the only requirement before Newcomb can claim § 9 protection under the second Freeman prong. The more serious crime to which his crime of conviction is compared must be punished “less severely,” not exactly the same, as it was here. See Freeman, 223 Kan. at 367. Accordingly, Newcomb’s argument fails.
On the third Freeman prong, Newcomb distinguishes between punishments for crimes involving “mere fondling,” such as aggravated indecent liberties, from punishments for crimes involving “acts of penetration,” such as rape or anal sodomy. Newcomb contends that Kansas’ Jessica’s Law statute is “the second harshest in the countiy as applied to mere fondling or touching, and [that Kansas is] one of only two states in the nation imposing a life sentence without the possibility of parole ... in the absence of any aggravating factors.”
In its brief, the State does not respond directly to Newcomb’s specific contentions and citations about aggravated indecent liberties. It instead generally argues the incapacitation purpose of the adoption of Jessica’s Law penalties nationwide. Its attachment of a National Conference of State Legislatures’ table provides little detail about the exact offenses in other states that would be considered the “same,” as Freeman requires. See Seward, 104,098, slip op. at 13 (discussing “same” versus “similar”). And its citation to an Internet website appears to be out of date and inaccessible. The State reasons as follows:
“Some 42 states have passed a version of Jessica’s Law and a common thread is a twenty-five year mandatory minimum for certain sex crimes against children .... Direct comparisons are difficult because each state defines crimes differently, has different sentencing procedures, different sentencing methods (e.g., indeterminate ranges, guideline ranges, fixed terms, etc.), and different parole and post-release rules and procedures. But, despite Defendant’s arguments, even tire analysis in his own brief shows a minimum sentence of 25 years for Defendant’s crimes is not out of synch with the sentences for similar crimes in other states.” (Emphases added.)
The State’s casual approach compels us to accept, for purposes of argument in this case, Newcomb’s assertion that Kansas has one of the harshest penalties in the nation for indecent liberties committed by an adult against a child younger than 14, which means that tire third prong of the Freeman test favors his § 9 challenge.
However, Newcomb’s persuasive force on the third prong does not counterbalance the first and second prongs. Among other things, Newcomb’s previous out-of-state conviction for almost exactly the type of lewd touching for which he was prosecuted here, his choice to pervert his position of trust and authority as K.S.’ stepfather, and his repeated predations over the course of several months place him at the more culpable end of the spectrum of offenders convicted of aggravated indecent liberties under Jessica’s Law. We therefore hold that the district judge did not err in rejecting Newcomb’s challenge to the proportionality of his hard 25 life sentence for aggravated indecent liberties under Jessica’s Law.
Conclusion
Each of defendant Stacy Robert Newcomb’s four claims on this appeal lacks merit. Our statutes prohibiting rape and aggravated indecent liberties do not create alternative means crimes. And his sentences for those crimes are not disproportional under § 9 of the Kansas Constitution Bill of Rights.
The judgment of the district court is affirmed. | [
16,
-22,
-35,
-65,
29,
98,
26,
30,
3,
-73,
-76,
83,
-87,
-38,
5,
121,
82,
-83,
84,
97,
-45,
-9,
23,
-31,
-74,
59,
-7,
95,
-77,
75,
-19,
-67,
76,
112,
74,
-43,
34,
-54,
113,
84,
-114,
-126,
9,
-48,
82,
74,
46,
63,
66,
27,
49,
-65,
-77,
11,
28,
-61,
-87,
44,
91,
-67,
88,
-79,
-72,
23,
88,
20,
-93,
32,
-100,
-125,
-16,
52,
24,
49,
0,
-24,
115,
-92,
2,
-10,
111,
-119,
-127,
102,
99,
1,
44,
-58,
-68,
-119,
-113,
119,
61,
-90,
-104,
72,
98,
76,
-65,
-39,
100,
86,
9,
-8,
-29,
78,
93,
100,
-88,
-101,
-108,
-101,
-123,
125,
-44,
-70,
-29,
38,
1,
117,
-57,
-92,
76,
87,
120,
-105,
-97,
-74
] |
Burgess, J.:
Douglas K. Hoesli was injured at work and filed a workers compensation claim. Because Hoesli—who was not yet retired but who was at full retirement age-—had already begun collecting Social Security retirement benefits, the administrative law judge (ALJ) determined that the setoff provision in K.S.A. 2010 Supp. 44-501(h) should apply to his permanent partial disability award and reduce tire award by the amount of Social Security benefits he receives. The Workers Compensation Board (Board) affirmed, but it refused to consider the setoffs applicability to Hoesli’s temporary total disability award because neither party had raised that issue prior to oral argument. Hoesli appeals to this court, arguing both that the Board erred in applying the setoff and also that the setoff is unconstitutional. Additionally, Hoesli’s employer, Triplett, Inc., cross-appeals, contending that the Board erred in finding that it lacked jurisdiction to consider the issue regarding Hoesli’s temporary total disability.
Facts
Sometime in 2008, Hoesli began working at Triplett as a truck driver. At that time, Hoesli was 65 years old and not yet collecting Social Security benefits. In April 2008, after Hoesli reached the age of 66, he began drawing his full Social Security benefit of $1,820 a month. His Social Security benefit was not reduced or offset by his full-time employment.
Because of health problems involving dizziness and fainting, Hoesli transferred from truck driving to the maintenance department at Triplett in 2009. In May 2010, Hoesli fell off an extension ladder at one of Triplett’s storage units while cleaning leaves out of a gutter and sustained injuries to his back and chest. Doctors determined that Hoesli suffered an L2 compression fracture but determined he could continue working on light duty. Although doctors eventually cleared Hoesli for full-time work, Hoesli continued to experience pain when participating in more strenuous job duties. Due to his continued work difficulties, Hoesli submitted a resignation to Triplett in May 2011, indicating that he had “ 'decided to retire and help [his] wife.’ ” Triplett and Hoesli proceeded to discuss his resignation and work out a solution in which Hoesli would return to work on a part-time basis. In June 2011, Hoesli resumed working 2 days a week; in September of the same year, he increased to 3 days a week. Although Hoesli continued to have pain during activities involving heavy lifting, he continued working 3 days a week even during the adjudication of his workers compensation case. It is unclear from the record whether Hoesli still works at Triplett.
While working for Triplett part-time in June 2011, Hoesli applied for a workers compensation hearing based on his work injuries. A hearing was held on his application on January 19, 2012. The parties stipulated to the existence of Hoesli’s injuries and the fact that those injuries arose out of and in the course of his employment, but they disputed four major issues. A primary issue and the subject of this appeal involved the applicability of the setoff provision present in K.S.A. 2010 Supp. 44-501(h), which reduces an injured employee’s compensation when he or she is also receiving retirement benefits such as Social Security. Although Hoesli contended that modern changes to federal Social Security law altered the setoff s applicability to his case, Triplett argued that Kansas caselaw demanded application of the provision. After reviewing the relevant caselaw, the ALJ stated:
“This court is unable to identify any duplication of benefits between [Hoeslifs social security old age benefits and his workers compensation benefits. They were two separate, distinct and independent revenue streams, that would have contin ued for the foreseeable future, but for the work-related injury. However . . . the later decision in [a prior Kansas case] . . . and the plain language of K.S.A. 44-501(h) appear to mandate application of the set-off.”
The ALJ then applied the setoff to Hoesli’s permanent partial disability (PPD) benefits but not to his 13% permanent partial functional impairment benefits. The ALJ did not discuss the set-off s effect on Hoesli’s temporary total disability (TTD) compensation.
Hoesli applied for review by the Board to determine, among other things, whether the setoff should apply to his PPD award. The Board heard argument on November 6, 2012. Although the record is somewhat unclear, it appears that, at oral argument, Trip-lett argued that the setoff applied to both Hoesli’s PPD and TTD awards rather than just his PPD award. The Board affirmed the ALJ’s ruling regarding the application of the setoff to the PPD award. Regarding die application of the setoff to Hoesli’s TTD compensation, the Board explained:
“However, the ALJ did not address whether an offset of [Hoeslifs social security benefits should be allowed against the TTD awarded [Hoesli], The only limitation placed on the offset by K.S.A. 2009 Supp. 44-501(h) deals with [Hoeslifs functional impairment. [Triplett] argues that the social security offset should apply to the payment of TTD as well as any permanent work disability, above the functional impairment awarded to [Hoesli], However, this issue does not appear to have been raised to the ALJ at the time of the regular hearing nor in [TriplettJ’s submission letter to the ALJ. Under K.S.A. 2009 Supp. 44-555(c) the Board is limited to deciding issues raised to and determined by the ALJ. That is not the case here on the TTD offset issue.”
Notably, however, the Board reviewed Triplett’s argument and determined that applying the offset to Hoesli’s TTD award would run afoul of K.S.A. 2010 Supp. 44-501(h). The Board ultimately declined to modify the award.
On February 27, 2013, Hoesli subsequently filed a petition for judicial review of the Board’s decision regarding the setoff s applicability and also raising the issue of the setoffs constitutionality. On March 18, 2013, Triplett filed a cross-petition for review, appealing the Board’s determination that it lacked jurisdiction to consider the setoffs applicability to Hoesli’s TTD benefits.
Analysis
Did the hoard err in applying the setoff provision in K.S.A. 2010 Supp. 44-501(h) to Hoesli s permanent partial disability awardP
Hoesli argues that the Board erred by affirming the ALJ’s application of the setoff to his PPD award. Although Hoesli acknowledges that Kansas caselaw has repeatedly applied the provision in circumstances similar to his, he primarily distinguishes these cases due to recent changes in federal law. Triplett, however, argues that these cases are not distinguishable and that not applying the setoff would run afoul of the statute’s purpose.
Final orders of the Board are subject to review under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. K.S.A. 2010 Supp. 44-556(a). Appellate courts have an unlimited review of questions involving the interpretation or construction of a statute, owing “ ‘[n]o significant deference’ ” to the agency’s or the Board’s interpretation or construction. Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013). When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. In re Tax Appeal of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013).
The statute at issue in this case, K.S.A. 2010 Supp. 44-501(h), provides in relevant part:
“If the employee is receiving retirement benefits under the federal social security act or retirement benefits from any other retirement system, program or plan which is provided by the employer against which the claim is being made, any compensation benefit payments which the employee is eligible to receive under the workers compensation act for such claim shall be reduced by the weekly equivalent amount of tire total amount of all such retirement benefits, less any portion of any such retirement benefit, other than retirement benefits under the federal social security act, that is attributable to payments or contributions made by the employee, but in no event shall the workers compensation benefit be less than the workers compensation benefit payable for tire employee’s percentage of functional impairment.”
More simply put, an employee’s worker compensation award will be set off by any retirement benefits he or she receives from a retirement benefit program, less any amount the employee contributed to his or her plan. K.S.A. 2010 Supp. 44-501(h). This setoff provision includes benefits received under the federal Social Security act. See K.S.A. 2010 Supp. 44-501(h).
This court and our Kansas Supreme Court have considered the purpose and intent of the setoff provision several times in its his-toiy. In the first case concerning the setoff provision—which at that time was K.S.A. 1976 Supp. 44-510f(c)—this court reviewed the purpose and rationale for workers compensation statutes. See Boyd v. Barton Transfer & Storage, 2 Kan. App. 2d 425, 426-28, 580 P.2d 1366, rev. denied 225 Kan. 843 (1978). There, the claimant, a retiree collecting Social Security benefits, had returned to work part-time at a rate that would supplement his Social Security benefits without rendering him ineligible. His workers compensation claim was denied because his Social Security benefits exceeded what would be his workers compensation award. He appealed, challenging tire constitutionality of the setoff.
In its decision, this court noted that the 1974 revision to the workers compensation laws in Kansas “sought to eliminate any duplication of wage-loss benefits by different programs” because workers compensation existed “ ‘to replace some proportion of wage loss.’ ” 2 Kan. App. 2d at 426-27. In gleaning the purpose of K.S.A. 1976 Supp. 44-510f(c), this court specifically focused on Baker v. List and Clark Construction Co., 222 Kan. 127, 563 P.2d 431 (1977), which analyzed the constitutionality of a similar setoff provision regarding death benefits received by dependents. In Baker, our Supreme Court relied on a treatise on workers compensation and noted the following:
“ ‘Once it is recognized that workmen’s compensation is one unit in an overall system of wage-loss protection, rather tiran something resembling a recovery in tort or on a private accident policy, the conclusion follows that duplication of benefits from different parts of the system should not ordinarily he allowed.
“ AVage-loss legislation is designed to restore to the worker a portion ... of wages lost due to the three major causes of wage-loss: physical disability, economic unemployment, and old age. The crucial operative fact is that of wage loss; the cause of the wage loss merely dictates the category of legislation applicable. Now if a workman undergoes a period of wage loss due to all three conditions, it does not follow that he should receive three sets of benefits simultaneously and thereby recover more than his actual wage. He is experiencing only one wage loss and, in any logical system, should receive only one wage-loss benefit. This conclusion is inevitable, once it is recognized that [the three categories of benefits] are all parts of a system based upon a common principle.’ ” 222 Kan. at 130-31 (quoting 4A Larson, The Law of Workmen's Compensation §§ 97.00, 97.10 [1976]).
See Boyd, 2 Kan. App. 2d at 427.
This court in Boyd determined that the purpose of K.S.A. 1976 Supp. 44-510f(c) was much the same: to eliminate duphcative benefits. 2 Kan. App. 2d at 427. The court stated that it would be reasonable if workers compensation terminated when the employee retired because “[t]he worker would suffer only one wage loss, but continued workmen’s compensation after retirement would duplicate the wage-loss replacement of the old age social security benefits which begin at that time.” 2 Kan. App. 2d at 428.
However, this court noted tire difference between those individuals receiving workers compensation who then later retire and drose who, after retirement, returned to work. Retirees who resume working, the court reasoned, “suffer a second wage loss when they are injured in the course of their employment.” 2 Kan. App. 2d at 428. To apply tire setoff to those individuals would “totally preclude any replacement of the wages which they are entitled to earn over and above old age social security benefits,” preventing not wage duplication but rather the veiy wage replacement that workers compensation laws exist to provide. 2 Kan. App. 2d at 428. Because a strict reading of the setoff provision ran afoul of the “spirit and reason” of the workers compensation act in place at the time, this court determined that dre setoff did not apply to retirees who returned to work and were then injured on the job. 2 Kan. App. 2d at 429.
Our Supreme Court essentially adopted this reasoning in Dickens v. Pizza Co., 266 Kan. 1066, 974 P.2d 601 (1999), a case with facts very similar to the facts in Boyd. There, our Supreme Court noted that the primary concern in cases applying the setoff to retirees who later returned to work was the “disparate treatment of individuals such as [the claimant in Dickens], seeking to supplement social security income, compared to other social security beneficiaries.” 266 Kan. at 1071. The court reaffirmed that although the setoff aims to prevent duplicative benefits, there is no duplication of benefits when a retired worker who is already receiving Social Security benefits returns to work, is injured, and receives a workers compensation award. 266 Kan. at 1071.
In 2004, this court revisited the rationale of Dickens in McIntosh v. Sedgwick County, 32 Kan. App. 2d 889, 91 P.3d 545, rev. denied 278 Kan. 846 (2004). In that case, tire claimant began receiving Social Security benefits after turning 65 in the spring of 1999 but continued working full time. He scheduled an August retirement date but was injured on the job a few months prior to retiring. The court determined that because the claimant was not retired at the time of his injuiy as in Dickens, the income from his full-time job “was not post-retirement income used to supplement his retirement income.” 32 Kan. App. 2d at 897. In summarizing the function of the setoff provision, the court stated: “The cases show two consistent patterns: (1) injuiy, then retirement: no duplication of benefits allowed . . . and (2) retirement, then injury: multiple benefits allowed.” 32 Kan. App. 2d at 897. The court further explained that when an injury occurs before the employee’s retirement,
“the appellate courts have consistently held that social security retirement benefits are designed to restore a portion of an employee’s wages lost due to age and, therefore, duplicate workers compensation benefits, which are designed to restore a portion of an employee’s wages lost due to injuiy.” 32 Kan. App. 2d at 897.
Because the claimant began receiving Social Security benefits before retirement only in anticipation of “the wage loss that would result from his eventual retirement,” the court held that the setoff applied. 32 Kan. App. 2d at 897-98.
Although our Supreme Court has not reconsidered the two-category approach established in McIntosh, this court has continued to address cases in this manner. See Jones v. Securitas Security Services, No. 105,414, 2011 WL 6311105 (Kan. App. 2011) (unpublished opinion) (precluding application of the setoff to retiree injured at postretirement job); Anderson v. Blue Ribbon Farm and Home, No. 97,618, 2007 WL 2301949 (Kan. App.) (unpublished opinion) (applying setoff to unretired employee receiving Social Security benefits), rev. denied 285 Kan. 1173 (2007). Close in facts to this case is a recent case before this court, Morales v. Wal-Mart, No. 107,526, 2013 WL 1010438 (Kan. App.) (unpublished opinion), rev. denied 298 Kan. 1203 (2013). There, the claimant began receiving Social Security benefits prior to reaching full retirement age. A few months later, she was injured at work. The Board found that because the claimant was receiving Social Security benefits prior to her injury, the setoff could not apply. This court considered the holdings in Dickens and McIntosh and framed the question as “whether [the claimant] retired before her employment at Wal-Mart and her subsequent injury.” Morales, 2013 WL 1010438, at *5. The court then went on to explain:
“The statutory exception set forth by Dickens is based on the rationale that workers who already are retired and receiving social security retirement benefits before starting work on a part-time job to supplement those benefits suffer a second wage loss when they are injured in the course of their employment.” 2013 WL 1010438, at *5.
Because there was no evidence showing that Morales had retired and that her employment at Wal-Mart existed to supplement her retirement income, the court determined that the setoff provision applied. 2013 WL 1010438, at *5.
The ALJ’s and the Board’s decisions were each based on the rule established in McIntosh and determined that because Hoesli had not yet retired, the setoff applied. Hoesli admits that he worked at Triplett prior to receiving Social Security retirement benefits and that he continued working after those benefits began. In fact, Hoesli referred to retirement in his May 2011 resignation letter, demonstrating that up until that time, he did not consider himself retired. Based on the principles in Dickens and McIntosh, it seems clear that Hoesli falls into McIntosh’s second category: he was an unretired worker receiving Social Security benefits when injured on the job and, therefore, the setoff would apply. See 32 Kan. App. at 897.
However, Hoesli raises a novel argument regarding the interplay between the setoff provision and federal Social Security law. Hoesli contends not that McIntosh and Dickens were wrongly decided but rather that their application is altered by the Senior Citizens' Freedom to Work Act of 2000, Pub. L. 106-182. See 42 U.S.C. §§ 402-403 (2006).The Act allows individuals age 65 and older to receive Social Security benefits and continue to work without penalty or reduction in wages. See Merrill v. Utah Labor Com'n, 223 P.3d 1089, 1097 (Utah 2009) (explaining effect of Senior Citizens' Freedom to Work Act). Hoesli contends that, based on this change in federal law, his two sets of benefits—'that is, Social Security benefits and workers compensation benefits—are not duplicative because he was entitled to both revenue streams prior to his injury and should continue to be entitled to both streams after.
Although the relationship between the setoff provision and this federal statutory change is a matter of first impression in Kansas, other states have tackled the issue. In Reesor v. Montana State Fund, 325 Mont. 1, 8, 103 P.3d 1019 (2004), when considering a setoff provision similar to that in Kansas, the Montana Supreme Court explained the federal statutory change as follows:
“[S]ocial security retirement benefits are not wage loss benefits. There is no requirement that to be entitled to social security benefits a person must stop working. In 2000, the federal government enacted the Senior Citizen’s Freedom to Work Act (42 U.S.C. 402) which eliminated the earnings limit for workers over ' the age of 65. Thus, there is no longer a reduction in social security retirement benefits due to wages regardless of the amount of wages earned by individuals age 65 and older.”
The Utah Supreme Court agreed with this position. See Merrill, 223 P.3d at 1097. In fact, the court diere noted that the change in federal Social Security law “invalidat[ed] the rationale that social security retirement benefits are a wage replacement,33 and diat under the change, die benefits were “not simply wage-loss replacement benefits, but serve[d] other, important purposes." 223 P.3d at 1097-98. Although that court did note that other jurisdictions, including Kansas, construe Social Security benefits as wage re placement benefits, the cases cited all predate the passage of the Senior Citizens’ Freedom to Work Act. See 223 P.3d at 1098 (citing Brown v. Goodyear Tire & Rubber Co., 3 Kans. App. 2d 648, 652-55, 599 P.2d 1031 [1979]).
Triplett contends that Hoesli’s reliance on the 2000 federal act is a “ ‘red herring’ ” because “it does not abrogate the legislative purpose of [the setoff provision]—to prevent duplication of wage loss benefits.” Additionally, Triplett attempts to analogize Hoesli’s situation to that of the claimant in McIntosh by arguing that Hoesli’s resignation letter in May 2011 and brief time off work qualifies as retiring. Triplett essentially argues that Hoesli’s resignation letter proves he was injured before retiring and that when his hours were reduced and he experienced wage loss the benefits became duplicative.
Although Triplett’s argument aligns itself with Kansas caselaw, it is illogical under the federal Social Security scheme as modified in 2000. As the ALJ observed in his order, there was no “duplication of benefits between [Hoesli]’s social security old age benefits and his workers compensation benefits. They were two separate, distinct and independent revenue streams, that would have continued for the foreseeable future, but for the work-related injury.” Whereas Hoesli’s Social Security benefits may have increased upon his injury and reduced hours under the old federal scheme, Hoesli—of full retirement age—was permitted both to receive his full Social Security benefits and a full-time salary from Triplett prior to his injury due to the 2000 federal statutory change. As the two income streams existed fully independent of one another and Hoesli received each without any limitation or reduction, it is difficult to justify relabeling one as duplicative simply due to Hoesli’s injury.
Clearly, the plain language of K.S.A. 2010 Supp. 44-501(h) indicates that the setoff applies to any individual receiving federal Social Security retirement benefits irrespective of any other considerations. Recent cases indicate that our Supreme Court “has emphasized that when a workers compensation statute is plain and unambiguous, an appellate court must give effect to the statute’s express language rather than determine what the law should or should not be.” Roles v. Boeing Co., 43 Kan. App. 2d 619, 632, 230 P.3d 771 (2010). However, legislative intent also plays a key role in questions of statutory construction, and our Kansas appellate courts have considered the intent behind our Kansas workers compensation statutes many times. See Bergstrom, 289 Kan. at 607. It is counterintuitive to apply a statute that is intended “to eliminate any duplication of wage-loss benefits by different programs” in a case in which one program’s benefits accrued regardless of whether any other income existed. See Boyd, 2 Kan. App. 2d at 427. Under these facts, the setoff provision in K.S.A. 2010 Supp. 44-501(h) creates the same problem that this court disapproved of in Boyd, running afoul of the statute’s puqpose by “totally preclud[ing] any replacement of tire wages which [an individual is] entitled to earn over and above old age social security benefits.” See 2 Kan. App. 2d at 428.
Unlike in McIntosh, Hoesli had no retirement date in mind, which suggests he did not begin collecting Social Security benefits in anticipation of “the wage loss that would result from his eventual retirement.” 32 Kan. App. 2d at 897. Instead, he began collecting Social Security benefits when he reached his full retirement age and was entitled to do so—and incidentally continued to work at Triplett. His 2010 injury limited his ability to continue working full time, reducing one of his income streams. Although Hoesli never retired, his choice to continue working past retirement age can be viewed as a decision to supplement his Social Security benefits as in Dickens, 266 Kan. at 1071. Applying tire setoff provision in this case fails to protect Hoesli from the wage loss he suffered after his injuiy, ultimately running afoul of the purpose of workers compensation legislation. See Baker, 222 Kan. at 131.
Recent opinions by our Kansas Supreme Court indicate that the Dickens exception continues to be good law, but they fail to express any clear approval or disapproval of the two categories established in McIntosh. See, e.g., Robinson v. City of Wichita Retirement Bd. of Trustees, 291 Kan. 266, 285-86, 241 P.3d 15 (2010). Based on McIntosh and those unpublished opinions following it, the Board’s decision in applying the setoff provision to Hoesli’s workers compensation award would be logical. However, application of the 2000 change to federal law creates a case of first impression in Kansas. Thus, looking at it in conjunction with the purpose and intent behind our workers compensation laws in general and the setoff in particular, there is a reasonable basis to find that the setoff should not apply and we should reverse the Board’s determination.
The final analysis boils down to several essential facts. At the time of Hoesli’s work-related injury, he was entitled to receive and was receiving two streams of income. Neither source of income was subject to setoff or any other limitation. Hoesli would have continued to receive both undiminished streams of income into the future but for his work-related injury. The grant of a workers compensation award in diis case would serve to make Hoesli whole. It would replace an income he was legally receiving and would place him in a position similar to the position he was in prior to his injury. To apply the setoff would act as a penalty, placing Hoesli in a worse position than he was in prior to the injury. To apply the K.S.A. 2010 Supp. 44-501(h) setoff would result in an outcome inconsistent with the stated purpose of wage-loss replacement under our workers compensation statutes. Therefore, we reverse the ruling of the Board.
Hoesli also raises an issue concerning the constitutionality of the setoff provision in K.S.A. 2010 Supp. 44-501(h). However, because we are reversing the Board’s determination, this second issue is rendered moot.
Cross-Appeal
Should the setoff provision in KS.A. 2010 Supp. 44-S01(h) apply to Hoesli’s temporary total disability awardP
In cross-appealing the Board’s decision, Triplett argues that the Board erred in finding it lacked jurisdiction to consider the applicability of the K.S.A. 2010 Supp. 44-501(h) setoff to Hoesli’s TTD award. Triplett frames its argument in several different ways, contending: (1) that applying the setoff to the TTD award simply amounts to altering the overall award rather than determining a new issue; (2) that the Board’s standard of review allows it to hear the TTD issue for the first time on appeal; (3) that the setoff itself is the relevant issue, not the TTD benefits; (4) that the Board decided the issue despite its jurisdictional concerns; and (5) that this issue involves a question of law that may be decided on established facts. Hoesli rebuffs this claim, arguing that the Board cannot hear an argument that was not introduced to and argued before the ALJ.
As previously stated, appellate courts have an unlimited review of questions involving the interpretation or construction of a statute. Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010). Additionally, whether jurisdiction exists is a question of law- over which this court also exercises unlimited review. Frazier v. Goudschaal, 296 Kan. 730, 743, 295 P.3d 542 (2013).
The Board has “exclusive jurisdiction to review all decisions, findings, orders and awards of compensation” by an ALJ in a workers compensation case. K.S.A. 2010 Supp. 44-555c(a). This review “shall be upon questions of law and fact as presented and shown by a transcript of die evidence and the proceedings as presented, had and introduced before the [ALJ].” K.S.A. 2010 Supp. 44-555c(a). On review, the Board is authorized to make a number of dispositions, including granting or refusing compensation, increasing or diminishing any award, or remanding the proceedings to the ALJ. K.S.A. 2010 Supp. 44-551(i)(l).
Three of Triplett’s arguments are by their nature intertwined. Pointing to K.S.A. 2010 Supp. 44-551(i)(l), Triplett categorizes application of the setoff to the TTD benefits not as an independent issue for consideration but rather an alteration of the existing award—and then bolsters that argument by disputing the claim that K.S.A. 2010 Supp. 44-555c(a) limits the scope of the Board’s review. Triplett further contends that because the setoff is the primary issue in the case, it was fairly before and decided by the ALJ.
In so arguing, Triplett relies on Woodward v. Beech Aircraft Corp., 24 Kan. App. 2d 510, 515-16, 949 P.2d 1149 (1997), where this court observed that the Board is not limited “to issues raised in the written request for [Board] review.” There, the parties raised an issue before the Board at oral argument that, although considered and decided by the ALJ, did not appear in their briefs. Similar to the Woodward case, neither party in this case raised the TTD issue until oral argument in this case, However, neither party raised the issue of the setoff s applicability to the TTD benefits before the ALJ either. Moreover, the ALJ made no ruling regarding whether tire setoff reached the TTD benefits. As such, this case resembles Hunn v. Montgomery Ward, No. 104,523, 2011 WL 2555689 (Kan. App. 2011) (unpublished opinion), in which the employer raised a jurisdictional issue before the Board after failing to raise the same before the ALJ. This court reviewed K.S.A. 2010 Supp. 44-555c(a) and determined that “[bjecause the previously mentioned issue was not raised by [the employer] to the ALJ or decided by tire ALJ, it cannot be raised or decided by tire Board.” 2011 WL 2555689, at *5.
Triplett attempts to combat this by pointing out that the K.S.A. 2010 Supp. 44-501(h) setoff in general is a key issue in this case and was therefore briefed and heard before the ALJ to a degree sufficient for the Board to consider the matter. But as Triplett observes in its briefs—and as the Board implies in its discussion of whether the setoff should apply to TTD benefits—the issue is more complicated than that. TTD and PPD are two different types of benefits. Compare K.S.A. 44-510c(b)(2) with K.S.A. 44-510d. TTD “exists when the employee, on account of the injury, has been rendered completely and temporarily incapable of engaging in any type of substantial and gainful employment” and require certain proof from health care providers, whereas PPD is “partial in character but permanent in quality.” (Emphasis added.) K.S.A. 44-510c(b)(2); K.S.A. 44-510d(a). PPD occurs either pursuant to a schedule or to an award calculation scheme that is wholly different from the calculation used for TTD benefits. Compare K.S.A. 44-510d(a) and K.S.A. 44-510e(a) (PPD benefits) with K.S.A. 44-510c(b) (TTD benefits). Due to these differences, applying the setoff to TTD benefits involves different questions of law and statutory interpretation than applying it to PPD benefits—questions not raised, heard, and decided before the ALJ. The existence of such questions also demonstrates that applying the setoff to Hoesli’s TTD benefits is more complicated than a mere mechanical application of a rule, removing it from being simply an award modification pursuant to K.S.A. 2010 Supp. 44-551(i)(l). ■
Furthermore, the specific issue of setting off TTD benefits to the extent of a claimant’s Social Security benefits appears to be a matter of first impression in Kansas. No statute or case stands for the proposition that TTD benefits and PPD benefits should be treated the same way under the setoff. It therefore cannot fairly be said that the ALJ’s finding that it applies to PPD benefits is similar enough to finding it applies to TTD benefits to consider it a “question[] of law . . . presented and shown by a transcript of the evidence and the proceedings as presented, had and introduced before tire [ALJ] ” under K.S.A. 2010.Supp. 44-555c(a).
Triplett also contends that the Board’s discussion of the setoffs applicability to TTD benefits constitutes a decision on the issue. Triplett points to the Board’s discussion of TTD benefits, noting that the Board concludes by stating that “[t]he Award will not be modified to offset claimant’s TTD by his weekly social security benefit.” Triplett insists this statement constitutes a decision of the issue on its merits.
However, prior to its discussion, the Board affirmatively stated that it was “limited to deciding issues raised to and determined by the ALJ,” which was “not the case here on the TTD offset.” In Flax v. Kansas Turnpike Authority, 226 Kan. 1, 4, 596 P.2d 446 (1979), our Supreme Court noted that “ ‘[d]ictum often develops in opinions from comments upon arguments advanced by counsel for the respective parties’ ” and that it “ ‘may be respected but should not control a judgment in a subsequent case when the precise point is presented, argued, and considered by the entire court.’ ” Although the Board discussed the setoffs applicability, it was “not determinative of the issue[]” and continues to not be so. See 226 Kan. at 4. Instead, the TTD issue was determined by the Board finding that it lacked jurisdiction to consider Triplett’s new argument.
Triplett finally contends that even if the Board lacked jurisdiction to determine the TTD issue, the appellate court may consider it for the first time on appeal as it is a question of law on established facts. Triplett raises this argument for the first time in its reply brief, relying on Kansas caselaw that indicates that an issue may be raised for the first time on appeal provided that it is a question of law to be decided on established facts. See Pankratz Implement Co. v. Citizens Nat’l Bank, 281 Kan. 209, 228, 130 P.3d 57 (2006). However, as previously stated, this court’s review of the Board’s action is controlled not by general principles of appellate procedure but by the KJRA. See K.S.A. 2010 Supp. 44-556(a). The KJRA limits when an individual “may obtain judicial review of an issue that was not raised before the agency.” K.S.A. 2010 Supp. 77-617. New issues may only be raised upon a request for judicial review if: (1) the agency lacked jurisdiction to grant a remedy; (2) the action subject to review is a rule and regulation and the party requesting review was not a party during agency proceedings sufficient to raise the issue before the agency; (3) the party requesting review was not notified of the agency proceeding and the action in question is an order from that proceeding; or (4) the interests of justice would be served by judicial review because either the controlling law changed after the agency acted or the agency action occurred after the party requesting review exhausted all feasible opportunities for agency relief. K.S.A. 2010 Supp. 77-617(a)-(d).
It appears on the face of the statute that none of the exceptions apply in this case. As such, this court cannot hear the TTD issue for the first time on appeal.
Because the ALJ did not hear the TTD issue, the Board properly concluded that it lacked jurisdiction to consider it on appeal. Moreover, hearing this issue for the first time on appeal would run afoul of the KJRA. As such, the Board’s decision that it lacked jurisdiction is affirmed.
Affirmed in part, reversed in part, and remanded. | [
-48,
-6,
-39,
-98,
10,
97,
59,
18,
121,
-42,
-89,
21,
-17,
-113,
85,
55,
-23,
69,
81,
75,
-9,
-93,
23,
1,
80,
-77,
-103,
-49,
-72,
79,
52,
-107,
79,
48,
10,
-44,
-26,
-55,
-50,
20,
-56,
6,
10,
-23,
24,
2,
56,
127,
-112,
69,
49,
-18,
26,
10,
24,
-81,
40,
110,
91,
-80,
-47,
-16,
-86,
4,
127,
17,
-95,
4,
-100,
14,
80,
50,
-104,
56,
-80,
-24,
82,
-74,
-110,
53,
35,
-69,
-124,
102,
99,
-80,
29,
-27,
-12,
56,
15,
-98,
-99,
5,
19,
25,
59,
15,
-108,
-67,
116,
20,
46,
124,
110,
4,
29,
41,
-106,
-122,
-106,
-128,
-33,
101,
-84,
-117,
-1,
-121,
17,
97,
-98,
-94,
95,
102,
123,
31,
75,
-110
] |
Standridge, J.;
Rhonda K. Ewertz appeals her conviction of possession of methamphetamine and possession of drug paraphernalia with intent to introduce a controlled substance into the human body, claiming the district court erred in denying her motion to suppress. She argues the search of her car was not permissible as a search incident to arrest and the search of her makeup bag was not permissible under the plain view doctrine.
Facts
The parties stipulated to most of the following facts, with the exception of the testimony from the hearing on the motion to suppress specifically referenced below. On March 22, 2010, Officer Matt Tatro observed a car traveling with no taillights. Tatro testified that the car was swerving in its lane and once crossed over the fog line. Tatro stopped the car and identified the driver as Ewertz by her Kansas driver s license. After initiating contact with Ewertz, Tatro observed several clues of intoxication, including an odor of alcohol coming from the car and Ewertz’ bloodshot and glassy eyes, slurred speech, and overall speech pattern. Ewertz admitted that she told Tatro she had consumed at least one alcoholic beverage prior to driving; Tatro testified that Ewertz also told him that she could not remember how many alcoholic beverages she had consumed.
Ewertz showed clues of intoxication on multiple field sobriety tests, including an alphabet test, a counting test, the walk-and-turn test, and the one-leg-stand test. Officer Tatro observed six clues during a horizontal nystagmus gaze test. After Ewertz refused to take the preliminary breath test, she was placed under arrest for suspicion of driving under the influence.
After placing Ewertz in his patrol car, Officer Tatro prepared to conduct a search of the car for open containers of alcohol. Before returning to the car, Tatro asked Ewertz if she had a purse. Ewertz said she did and that it was in the passenger seat. Thereafter, Tatro went back to the car to retrieve the purse and to conduct a search of the car incident to arrest. In so doing, he observed an unzipped, pink makeup bag on the passenger side floorboard of the car containing a glass pipe with clearly visible burnt residue inside it. Ew-ertz admitted the makeup bag was hers, and Tatro thereafter searched through its contents. Tatro ultimately found a small zippered pouch, inside of which was a plastic baggie containing a crystalline substance that Tatro believed in his training and experience to be methamphetamine. The baggie and the glass pipe were tested, and methamphetamine was found in both.
Ewertz filed a motion to suppress the evidence discovered on the grounds that Officer Tatro did not have legal authority to search inside the car. After a hearing, the court held the search was lawful and the evidence legally admissible. Ewertz appeals from this ruling.
Analysis
On a motion to suppress evidence, this court reviews the factual findings underlying the trial court’s suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by a de novo standard. The court does not reweigh the evidence. State v. Walker, 292 Kan. 1, 5, 251 P.3d 618 (2011). Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).
Search Incident to Arrest
The Fourth Amendment to the United States Constitution prohibits all unreasonable searches and seizures. Searches conducted without a valid search warrant are per se unreasonable unless the circumstances of the search fall within a specifically established and well-delineated exception to the search warrant requirement. These generally recognized exceptions include: (1) consent, (2) search incident to a lawful arrest, (3) stop and frisk, (4) probable cause to search with exigent circumstances, (5) the emergency doctrine, (6) an inventory search, (7) plain view, and (8) an administrative search of a closely regulated business. State v. Vandevelde, 36 Kan. App. 2d 262, 267-68, 138 P.3d 771 (2006). The State bears tire burden of proving to the trial court the lawfulness of the search and seizure by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008).
The State argued to the trial court that the search of Ewertz’ car fell under the “search incident to a lawful arrest” exception. In Arizona v. Gant, 556 U.S. 332, 343-44, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), the United States Supreme Court delineated the parameters of this exception. Specifically, the Court held that a vehicle may be searched incident to a recent occupant’s arrest only when (1) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or (2) it is “ ‘reasonable to believe’ ” evidence relevant to the crime of arrest might be found in the vehicle. 556 U.S. at 343-44 (citing Thornton v. United States, 541 U.S. 615, 632, 124 S. Ct. 2127, 158 L. Ed. 2d 905 [2004] [Scalia, J., concurring]). Under the facts presented in the case before it, the Gant Court determined that it was not reasonable to'believe evidence relevant to the crime of arrest might be found in the vehicle; specifically, the defendant “was arrested for driving with a suspended license—an offense for which police could not expect to find evidence in the passenger compartment of his car,” unlike the drug offenses in some of the Court’s prior cases. 556 U.S. at 344; see Thornton, 541 U.S. 615 (search of car conducted after recent occupant of car arrested for possession of drugs); New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981) (same).
Citing the legal principles set forth in Gant, the district court in this case acknowledged that the interior of the car was no longer within Ewertz’ immediate control when she was seated in the patrol car; thus, the first Gant exception did not apply. The district court ultimately concluded, however, that the search incident to arrest was justified under the second Gant exception because it was reasonable to believe that evidence relevant to the crime of arrest (driving under the influence) might be found in her vehicle. On appeal, Ewertz asserts the facts do not support the court’s conclusion in this regard.
Whether it was “reasonable to believe” evidence relevant to the crime of driving under the influence might be found in Ewertz’ vehicle depends on how we read Gant. We begin our analysis with the explanation of this standard provided by tire Court in Gant:
“In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the car contains relevant evidence. [Citations omitted.] But in others, including Belton and Thornton [where the defendant is arrested for possession of drugs], the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s car and any containers therein.” Gant, 556 U.S. at 343-44.
In the wake of this explanation, two approaches to the ■ “it is reasonable to believe” standard set forth in Gant have developed. Some courts have interpreted the above passage to create an almost categorical link between the nature of tire crime of arrest and the right to search; in other words, certain offenses will never provide an officer with reasonable belief that a car contains evidence of the offense, while other offenses always will. See People v. Nottoli, 199 Cal. App. 4th 531, 553, 130 Cal. Rptr. 3d 884 (2011) (“The Supreme Court in Gant indicated that the nature of the crime of arrest was determinative.”); State v. Cantrell, 149 Idaho 247, 254, 233 P.3d 178 (Ct. App. 2010) (“Cantrell was arrested for DUI, and the DUI supplied the basis for the search.”).
Other courts have rejected this categorical approach, reasoning instead that the “it is reasonable to believe” standard is akin to reasonable suspicion. See United States v. Taylor, 49 A.3d 818, 822-24 (D.C. 2012) (there must be specific and articulable facts drat exist which, when taken together with rational inferences from those facts, would reasonably justify a vehicle search under the second prong of Gant); accord People v. Chamberlain, 229 P.3d 1054, 1057 (Colo. 2010) (“The nature of the offense of arrest is clearly intended to have significance, and in some cases it may virtually preclude the existence of real or documentary evidence, but a broad rule automatically authorizing searches incident to arrest for all other offenses cannot be reconciled with the actual holding of Gant.”); see also People v. Evans, 200 Cal. App. 4th 735, 748-52, 133 Cal. Rptr. 3d 323 (2011) (adopting Chamberlain rationale).
The Kansas Supreme Couxt has not yet interpreted the Gant Court’s “it is reasonable to believe” language. Although some decisions of this court have found there was no reason to believe evidence would be found in the car based solely on the crime of arrest, the crimes of arrest in those cases were the land of traffic violations identified by tire Gant Court as never providing a reasonable basis to believe the vehicle contains evidence of the crime of arrest. See State v. Karson, 44 Kan. App. 2d 306, 311, 235 P.3d 1260 (2010) (“there was no reason to believe that any evidence would be found in the car that was related to the crime for which he was arrested [a preexisting traffic warrant]”), rev. granted May 21, 2011; State v. Wear, No. 100,442, 2009 WL 2902577, at *2 (Kan. App. 2009) (unpublished opinion) (finding search of truck Wear’s husband was driving could not be justified as search for evidence of crime for which he was arrested—driving with suspended license). In one case, however, a panel of this court relied on the specific facts of the case to find that an officer was justified to believe evidence would be found in the vehicle. See State v. Julian, No. 105,695, 2012 WL 1759405, at *5 (Kan. App. 2012) (unpublished opinion) (finding pat-down search of defendant’s person and defendant’s furtive movements while in car provided officer reason to believe evidence of marijuana might be found in defendant’s vehicle), rev. granted May 5, 2013. Similarly, in United States v. Francis, No. 11-40064-01-RDR, 2011 WL 5837182, at *3 (D. Kan. 2011) (unpublished opinion), the United States District Court for the District of Kansas found it was reasonable for an officer to think he could find evidence of impaired driving in the vehicle when the driver stated she had taken medication, the officer smelled a strong odor of alcohol coming from the vehicle, and there was other evidence providing probable cause of driving under the influence.
In this case, the district court did not address whether it was reasonable to believe evidence related to Ewertz’ arrest would be found in the car; instead it only noted that an officer may search for evidence “ "relevant to the crime of arrest.’ ” As such, the district court’s decision appears to follow the categorical approach that some courts have used under Gant because, like drug offenses, driving under the influence is likely within the category of crimes identified by the Gant Court as supplying a basis for searching a vehicle. See 556 U.S. at 343-44. Specifically, the district court seemed to rely on Officer Tatro’s testimony that he was looking for open containers of alcohol during the search, which the district court concluded was evidence that is relevant to the crime for which Ewertz was arrested. This factual finding is supported by substantial competent evidence in Tatro’s testimony. Thus, if we construe the “it is reasonable to believe” language in Gant to impose a categorical standard, the district court correctly held that Ewertz’ arrest for driving under the influence provided Tatro with reason to believe the car might contain evidence related to the crime of arrest, such as open containers of alcohol.
But the lawfulness of the search also can be affirmed if we construe Gant’s “it is reasonable to believe” language as imposing a reasonable suspicion standard. The district court found that Officer Tatro had probable cause to arrest Ewertz for driving under the influence based on the smell of alcohol in the car, Ewertz’ failure of some of the field sobriety tests, and her glassy and bloodshot eyes. There is substantial competent evidence throughout Tatro’s testimony—as well as the parties’ stipulated facts—to support these findings. The district court also found that Tatro observed Ewertz swerving before he made the stop and noted her speech was slurred. This finding is supported by Tatro’s testimony as well. In addition to evidence that the car Ewertz was driving swerved in its lane and crossed over the fog line, that Tatro smelled alcohol in the car after he pulled Ewertz over, that Ewertz failed field sobriety tests, that Ewertz had glassy and bloodshot eyes, and that Ewertz slurred her words, there is also evidence that Ewertz admitted to drinking at least one alcoholic beverage before driving the car. In light of these specific and articulable facts, as well as any rational inferences that can be drawn from those facts, we conclude die district court did not err in finding it was “reasonable to believe” evidence relevant to die crime of driving under the influence might be found in Ewertz’ vehicle.
The Plain View Doctrine
The plain view doctrine is one of the exceptions to the search warrant requirement recognized in Kansas. See Vandevelde, 36 Kan. App. 2d at 267-68. When officers are in a place they have a right to be, even within a home, they may seize any evidence in plain view. State v. Ulrey, 41 Kan. App. 2d 1052, 1060, 208 P.3d 317 (2009). Under the plain view exception, a law enforcement official can seize evidence of a crime if “ ‘(1) die initial intrusion which afforded authorities die plain view is lawful; (2) the discovery of the evidence is inadvertent; and (3) the incriminating character of the article is immediately apparent to searching authorities.’ ”. State v. Canaan, 265 Kan. 835, 843, 964 P.2d 681 (1998) (quoting State v. Parker, 236 Kan. 353, Syl. ¶ 2, 690 P.2d 1353 [1984]). The United States Supreme Court has observed that either a warrant or a warrant exception, including a search incident to lawful arrest, will support the initial intrusion that brings the police within plain view of an article of incriminating character. Coolidge v. New Hampshire, 403 U.S. 443, 465-66, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).
Ewertz presents two arguments in support of her contention that the search of her makeup bag was not justified under the plain view doctrine: (1) the search of her car was not permissible as a search incident to arrest, so any evidence discovered as a result of that search—regardless of whether it was in plain view—was inadmissible and (2) Officer Tatro’s written report describing the search of the car incident to arrest was at odds with testimony provided by Tatro at the suppression hearing. Because we already have found that the search incident to Ewertz’ arrest was lawful under the second Gant exception, we find no merit to Ewertz’ first argument and therefore address only the second argument presented.
The written report submitted by Officer Tatro states:
• After he arrested Ewertz and placed her in the patrol car, he walked back to the car to retrieve her purse and do a search incident to arrest for any open containers of alcohol.
• In so doing, he “ looked under the seat and on both front seats. While [he] was doing this [he] observed a small pink makeup bag that was actually on the passenger floorboard right in front of the passenger seat.’ ”
• “ ‘[T]he bag had a zipper but it was unzipped and [he] could see inside’ the bag.”
• “ ‘[T]here appeared a lot of items in the bag but directly on top [he] could see what was clearly a glass pipe which through [his] training and experience [he] believed to be used for the smoking of illegal narcotics including methamphetamine.’ ”
• He then searched the bag and found a small zippered pouch, inside of which was a plastic baggie containing a crystalline substance that he believed in his training and experience to be methamphetamine.
At the suppression hearing, Officer Tatro noted that his report was not entirely accurate in that he walked back to the car to retrieve her purse and do a search incident to arrest for any open containers of alcohol but in retrieving the purse noticed the pink makeup bag on the passenger floorboard right in front of the passenger seat. Tatro testified he took the purse to the patrol car and asked Ewertz whether the makeup bag was hers and whether she wanted it, to which she responded in the affirmative. Tatro testified that he then walked back to the car a second time and observed tlrat tire makeup bag on the passenger floorboard was unzipped— with a 1½- to 2-inch gap, right inside of which was a glass pipe he believed to be used for smoking illegal narcotics.
In her brief, Ewertz appears to argue that the search of her makeup bag was not justified under the plain view doctrine because diere was a discrepancy between Officer Tatro’s written report stating that he observed the glass pipe in die makeup bag on his first trip to the car and Tatro’s oral testimony stating that he observed the glass pipe in the makeup bag on a second trip to die car. But tiiis argument has no merit. Even if Tatro observed the glass pipe on his second trip to the car, there is no dispute that Tatro returned to the vehicle to conduct a search incident to arrest. And, even if Ewertz did not tell Tatro that she wanted the makeup bag—again—there is no dispute that Tatro returned to die vehicle to conduct a search incident to arrest. Moreover, conspicuously missing from Ewertz’ argument is any challenge to Tatro’s testimony that the unzipped makeup bag revealing a glass pipe was in plain view as he began to conduct the search of her car for open containers of alcohol incident to her arrest for driving under the influence.
The finding that Officer Tatro observed the makeup bag containing drug paraphernalia in plain view is supported by substantial competent evidence in his testimony and the parties’ stipulated facts. Given that Tatro intended to retrieve the bag and give it to Ewertz until he saw die pipe inside through the unzipped opening, the discovery of the evidence in this case was inadvertent. Furthermore, die incriminating character of the pipe was immediately apparent to Tatro as paraphernalia used for smoking narcotics. Therefore, die factual findings of the district court support its legal conclusion that the search of the makeup bag was constitutional under the plain view exception to the warrant requirement.
Affirmed. | [
-79,
-22,
125,
-116,
42,
96,
62,
62,
-13,
-41,
-3,
51,
-17,
-48,
20,
41,
-21,
-33,
112,
-55,
-33,
-74,
67,
0,
-10,
-41,
56,
83,
-73,
75,
108,
-12,
110,
-80,
-125,
-43,
70,
-54,
-11,
88,
-120,
13,
-71,
113,
90,
-110,
32,
43,
-89,
15,
49,
-97,
-29,
46,
26,
-49,
73,
104,
-53,
-83,
96,
-8,
-71,
-97,
-113,
22,
-93,
20,
-75,
45,
-40,
27,
-108,
49,
16,
-8,
59,
-90,
-110,
116,
111,
-119,
-124,
32,
96,
33,
45,
-83,
-84,
-116,
62,
59,
-73,
-91,
-40,
73,
65,
-84,
-106,
-67,
117,
58,
15,
-24,
122,
85,
87,
124,
-118,
-49,
-68,
-111,
15,
48,
-124,
-13,
-21,
-91,
112,
97,
-49,
-12,
94,
20,
113,
-101,
-50,
-106
] |
Powell, J.:
The State appeals Daniel W. Tims’ driving under die influence (DUI) sentence, claiming it is illegal because the district court improperly excluded Tims’ prior DUI diversion from its calculation of Tims’ criminal history. The district court agreed with Tims that his prior uncounseled DUI diversion could not be counted in his criminal histoiy, making this DUI Tims’ second conviction rather than his third. Because we hold that Tims’ prior uncounseled DUI diversion should have been counted in his criminal histoiy, we reverse the district court and remand for resent-encing as a felony third DUI conviction.
Factual and Procedural History
The Jackson County District Court found Tims guilty of driving under the influence of alcohol in June 2012. This was not Tims’ first DUI. In 2002, Tims executed a DUI diversion agreement in the Topeka Municipal Court. There is no evidence in the record regarding whether Tims successfully completed the diversion; however, Tims makes no claim that he served jail time in connection with his Topeka offense; Tims’ presentence investigation report lists it as a diversion and not a conviction; and since it is the subject of this appeal, we presume the diversion was never revoked and no sentence was imposed. Tims was convicted of another DUI in 2004.
Based upon die 2002 DUI diversion and the 2004 DUI conviction, in 2012 the State charged Tims with felony DUI under K.S.A. 2011 Supp. 8-1567(a)(5) and (b)(1)(D). Curiously, Tims waived his preliminary hearing then subsequently filed a Motion to Strike Diversion from Consideration of Defendant’s Criminal History and Discharge from Felony Charges. After the State responded only to the merits of the motion and not its procedural propriety, the district court heard arguments and granted Tims’ motion. The State then filed a motion to reconsider, resulting in a brief hearing and denial by the district court. Thereafter, the parties agreed to a bench trial upon stipulated facts. The State reserved the right to appeal the district court’s sentencing decision based on the court’s exclusion of Tims’ 2002 DUI diversion from his criminal history.
The district court found Tims guilty, treated his conviction as a second misdemeanor DUI conviction, and sentenced him to probation. The State timely appeals based on an illegal sentence and on a question reserved.
Does Appellate Jurisdiction Exist Under a Challenge to an Illegal Sentence or as a Question Reserved?
As an initial matter, we observe that the State appeals Tims’ sentence as illegal under K.S.A. 22-3504 and on a question reserved for statewide importance under K.S.A. 2012 Supp. 22-3602(b)(3). We suspect the State feels it necessary to pursue its appeal under this dual track due to die somewhat unusual procedural history diat brought this question to us. This matters because we may order the district court to modify its sentence under K.S.A. 22-3504, but we may not for appeals brought under K.S.A. 2012 Supp. 22-3602(b)(3) because “an appellate court’s answer to a State’s question reserved has no effect on die criminal defendant in the underlying case.” State v. Berreth, 294 Kan. 98, 123, 273 P.3d 752 (2012); see also State v. McCarley, 287 Kan. 167, 176, 195 P.3d 230 (2008) (appellate court has authority to review State’s claim of illegal sentence). As it is our duty to question appellate jurisdiction sua sponte in the absence of it being raised by either party, it is necessary to review the issue. Ryser v. State, 295 Kan. 452, 456, 284 P.3d 337 (2012). The issue of jurisdiction is a question of law over which our review is unlimited. Berreth, 294 Kan. at 109.
The procedural irregularities began with Tims’ decision to waive his right to a preliminary hearing. The record is unclear on tiiis point, but it may have been by agreement as Tims asked the district court for a hearing on his anticipated motion to challenge his DUI diversion at tire same time he waived his preliminary hearing. Tims timely filed his motion, and the State never challenged his ability to bring such a motion in light of his preliminary hearing waiver. However, our Supreme Court has determined that prior DUI convictions must be proven by the State at a preliminary hearing in order to establish that a felony has been committed. State v. Seems, 277 Kan. 303, 305-06, 84 P.3d 606 (2004). Tims should have raised this challenge to his prior DUI diversion at the preliminary hearing, requiring the district court to dismiss the felony DUI charge given its agreement with Tims on this point. See State v. Key, 298 Kan. 315, 312 P.3d 355 (2013) (defendant who intends to challenge validity of prior misdemeanor DUI should do so at preliminary hearing). Moreover, our Supreme Court has also stated: “[Pjroof of a prior conviction is not an element of DUI to be established at trial and need not be brought out until the sentencing phase.” State v. Masterson, 261 Kan. 158, 164, 929 P.2d 127 (1996). This suggests Tims also could have challenged his prior DUI diversion at his sentencing. See Key, 298 Kan. at 320-21 (challenge to inclusion of prior misdemeanor in defendant’s criminal history requires objection at sentencing). Either way, we could have clearly considered the State’s challenge to the district court’s dismissal of the charge or a challenge to the district court’s sentence on appeal.
However, Tims chose to file instead—with tire possible acquiescence from the State—his Motion to Strike Diversion from Consideration of Defendant’s Criminal History and Discharge from Felony Charges shortly after he waived his preliminary hearing. Unlike Key, where the defendant did not waive his preliminary hearing, we think Tims likely waived his right to seek dismissal of the DUI charge on felony classification grounds because that issue should have been raised at the preliminary hearing. By waiving the preliminary hearing, Tims consented to the district court’s finding that probable cause existed that he committed a felony. If Tims had not waived his preliminary hearing and had objected to the introduction of the prior DUI diversion agreement at the hearing, then a subsequent motion to dismiss would have been in order. See Key, 298 Kan. at 320-21 (defendant may challenge validity of prior misdemeanor DUI through timely motion to dismiss).
Moreover, the district court had no authority to reclassify the DUI charge as a misdemeanor. See State v. Bell, 268 Kan. 764, 768, 1 P.3d 325 (2000) (once probable cause existed to bind defendant over on charge, district court without authority to amend it); State v. Leslie, 237 Kan. 318, 319, 699 P.2d 510 (1985) (district court may not amend felony charge to misdemeanor). However, the State never raised a procedural objection to this motion and, instead, opposed it only on the merits. Once the motion was granted by the district court, the parties subsequently agreed to try the case on stipulated facts with the understanding that the State could challenge the propriety of tire misdemeanor sentence. In light of this record, we conclude that we have jurisdiction to consider the State’s appeal of Tims’ sentence as illegal under K.S.A. 22-3504 because, unlike in Berreth, the State has asserted the illegality of the sentence throughout its appeal. See Berreth, 294 Kan. at 111 (State’s sole ground for appeal was on a question reserved). Therefore, we need not answer the question of whether the issue is one of “statewide importance,” though we acknowledge it probably is. See State v. Jaben, 294 Kan. 607, 609, 277 P.3d 417 (2012) (questions reserved generally presuppose that case on appeal requires answer to an issue of statewide importance necessary for proper disposition of future cases).
Does a Defendant Have a Right to Counsel in a DUI Diversion Proceeding?
Turning to the merits, the State contends a published decision is needed to clarify (1) whether a defendant has a right to counsel in a DUI diversion proceeding and (2) whether a defendant entering into a DUI diversion, if uncounseled, must waive this right to counsel in front of a judge. Our court recently released four unpublished opinions related to this issue: State v. Copenhaver, No. 107,632, 2013 WL 2395329 (Kan. App. 2013) (unpublished opinion) (Sixth Amendment right to counsel does not attach during DUI diversion proceedings), petition for rev. filed June 24, 2013; State v. Miller, No. 108,302, 2013 WL 1943153 (Kan. App. 2013) (unpublished opinion) (uncounseled DUI diversion may be considered as conviction whether or not there was valid waiver of counsel); State v. Lahodny, No. 106,992, 2013 WL 3970169 (Kan. App. 2013) (unpublished opinion) (no Sixth Amendment right to counsel in prior DUI diversion proceeding); State v. Nieves, No. 105,449, 2013 WL 1010276 (Kan. App. 2013) (unpublished opinion) (Sixth Amendment right to counsel never attached during prior Oregon DUI diversion proceedings), rev. granted October 1, 2013.
Therefore, the question before us is whether Tims had a Sixth Amendment or statutory right to counsel during his DUI diversion proceedings. If so, we then must consider whether Tims was required to waive this right in front of a judge. The district court interpreted State v. Hughes, 290 Kan. 159, 224 P.3d 1149 (2010), and In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 708 P.2d 977 (1985), to require such a waiver. The State contends the district court erred, asserting that Tims’ uncounseled diversion agreement was constitutionally valid and counted as a DUI conviction; therefore, Tims should have been charged with and sentenced as a felony under K.S.A. 2011 Supp. 8-1567(b)(l)(D). As these issues implicate only questions of law, our review is unlimited. See State v. Mossman, 294 Kan. 901, 925, 281 P.3d 153 (2012); Paletta v. City of Topeka, 20 Kan. App. 2d 859, 864-66, 893 P.2d 280, rev. denied 258 Kan. 859 (1995).
Analysis
K.S.A. 2011 Supp. 8-1567, the statute governing Tims’ present DUI offense, is a recidivist statute providing for an enhanced severity in charge and sentence if the offender has previous DUI convictions. The statute states in relevant part;
“(b)(1) Driving under the influence is:
(C) on a tliird conviction a class A, nonperson misdemeanor, except as provided in subsection (b)(1)(D). . . .
(D) on a tliird conviction a nonperson felony if the person lias a prior conviction which occurred within the preceding 10 years, not including any period of incarceration.
“(j) For the purpose of determining whether a conviction is a first, second, tliird, fourth or subsequent conviction in sentencing under this section:
(1) ‘Conviction’ includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal -proceedings on a complaint alleging a violation of this section; . . . (Emphasis added.)
Therefore, entering into a valid DUI diversion agreement under Kansas law constitutes a prior conviction for purposes of K.S.A. 2011 Supp. 8-1567. Tims challenged the use of his DUI diversion as a prior conviction by claiming his 2002 DUI diversion was constitutionally invalid. If a defendant’s past DUI diversion is invalid, then tire court cannot consider the diversion when determining whether it is the defendant’s first, second, third, fourth, or subsequent conviction. See generally Hughes, 290 Kan. at 165-66 (invalid prior convictions may not be counted in criminal history). Accordingly, if Tims’ 2002 DUI diversion is invalid, Tims would be subject only to a misdemeanor charge and sentence under K.S.A. 2011 Supp. 8-1567(b)(l)(B) rather than to a felony charge and sentence under K.S.A. 2011 Supp. 8-1567(b)(l)(D).
Constitutional Right to Counsel
In Kansas, a defendant’s first and second DUI charges are misdemeanors. K.S.A. 2011 Supp. 8-1567(b)(l)(A) and (B). In Scott v. Illinois, 440 U.S. 367, 373-74, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979), the United States Supreme Court held that “no indigent criminal defendant [may] be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.” The Court later clarified the Sixth Amendment right to counsel attaches when guilt is adjudicated, eligibility for imprisonment is established, and a prison sentence is determined. Alabama v. Shelton, 535 U.S. 654, 665, 122 S. Ct. 1764, 152 L. Ed. 2d 888 (2002). Therefore, an indigent defendant charged with a misdemeanor has no constitutional right to appointed counsel unless the sentence to be imposed upon conviction of the charge includes a term of imprisonment.
State v. Paletta
In 1994, the United States Supreme Court held that a prior uncounseled misdemeanor conviction may be used to enhance punishment in a subsequent conviction because the sentence in the prior case did not include a term of imprisonment. Nichols v. United States, 511 U.S. 738, 748-49, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994). The following year, relying on the then newly published Nichols case, our court chose not to follow die previous Kansas Supreme Court precedent set out in State v. Priest, 239 Kan. 681, 685, 722 P.2d 576 (1986) (an uncounseled diversion agreement, where counsel was not waived, could not be used to enhance the sentence of a DUI offender). Instead, the Paletta court held that “an uncounseled [DUI] diversion may be used as a prior conviction to enhance sentencing in a subsequent [DUI] conviction so long as no imprisonment was actually imposed on the uncounseled diversion. Under these circumstances, the Sixth Amendment right to counsel does not apply.” Paletta, 20 Kan. App. 2d at 868.
Three months after our court’s Paletta decision, the Kansas Supreme Court further validated Paletta by adopting the Nichols rationale in State v. Delacruz, 258 Kan. 129, 135, 899 P.2d 1042 (1995), holding that “an uncounseled misdemeanor conviction that does not result in incarceration may be used in determining a defendant’s criminal histoiy under the Kansas Sentencing Guidelines even though it has the effect of enhancing his or her sentence under the guidelines.” Delacruz specifically overruled Priest, which Tims incorrectly argues is still good law and controlling in this case. The Delacruz opinion demonstrates our Supreme Court’s approval of the Nichols rationale. The rationale and conclusion in Paletta remains good law, and, in fact, subsequent decisions of our court— including the recent unpublished decisions cited above—are consistent with Paletta.
Diversion Agreement Versus Suspended Prison Sentence
Tims also incorrectly argues that the Paletta holding has been overruled by Shelton and the Kansas Supreme Court’s adoption of Shelton in State v. Youngblood, 288 Kan. 659, 206 P.3d 518 (2009). Shelton addressed whether the Sixth Amendment right to counsel was a prerequisite to imposition of a suspended prison sentence. 535 U.S. at 660. The Court established the Sixth Amendment right to counsel attached when guilt was adjudicated, eligibility for imprisonment was established, and a prison sentence was determined. 535 U.S. at 665. But a suspended sentence, often referred to as probation in Kansas, may constitute a term of imprisonment even though actual incarceration is not immediate or inevitable. “ ‘A defendant who receives a suspended or probated sentence to imprisonment has a constitutional right to counsel.’ ” 535 U.S. at 674.
In Youngblood, the defendant challenged the use of his uncoun-seled misdemeanor conviction for possession of marijuana to increase the severity of his later conviction for the same crime. Our Supreme Court reviewed Delacruz in light of Shelton and concluded:
“A person accused of a misdemeanor lias a Sixth Amendment right to counsel if the sentence to be imposed upon conviction includes a term of imprisonment, even if the jail time is suspended or conditioned upon a term of probation. The right to counsel arises at the stage of the proceedings where guilt is adjudicated, eligibility for imprisonment is established, and the prison sentence determined.” Youngblood, 288 Kan. 659, Syl. ¶ 2.
In Youngblood’s uncounseled prior conviction, a term of imprisonment was imposed; therefore, his Sixdi Amendment right to counsel was violated. Because of this violation in tire prior case, the State was prohibited from using that conviction to enhance the severity of the defendant’s later conviction. 288 Kan. at 669-70; see also State v. Long, 43 Kan. App. 2d 328, 337, 225 P.3d 754 (2010) (defendant’s right to counsel attaches when guilt is adjudicated and a sentence of imprisonment is imposed, even though defendant does not serve the sentence).
In contrast, a diversion agreement under Kansas law is an agreement between the defendant and the prosecuting authority entered into before any conviction on the charged offense. State v. Chamberlain, 280 Kan. 241, 245, 120 P.3d 319 (2005). As part of the diversion agreement, the defendant agrees to waive certain constitutional rights and abide by certain conditions; however, a diversion agreement may not be conditioned on the defendant entering a plea to the offense charged. If the defendant successfully fulfills the terms of the diversion agreement, the prosecuting authority agrees to dismiss the charge with prejudice. But if the defendant fails to fulfill the terms of the diversion agreement, the diversion agreement is revoked and criminal proceedings are resumed. See K.S.A. 12-4412 et seq.; K.S.A. 22-2906 el seq.
Tims argues his uncounseled DUI diversion is akin to a suspended sentence or probation as contemplated in Shelton and Youngblood. He contends the diversion agreement could have resulted in his imprisonment had the agreement been revoked and had he been convicted of a first-time DUI then sentenced to a jail term. Tims’ argument, however,
“ignores a crucial distinction between a diversion agreement and a suspended sentence or probation: at tire time a defendant enters into a diversion agreement, no adjudication of guilt is entered, eligibility for imprisonment is not established, and no prison sentence is determined. See State v. Slick, No. 95,258, 2006 WL 1976757 (Kan. App. 2006); State v. Tapedo, No. 89,883, 2003 WL 22283150, at *1 (Kan. App. 2003), rev. denied 277 Kan. 927 (2004) (diversions have no underlying sentence and are thus distinguishable from convictions widi conditional or suspended sentences for purposes of right-to-counsel analysis).” State v. Copenhaver, No. 107,632, 2013 WL 2395329, at *3 (Kan. App. 2013) (unpublished opinion).
Therefore, notwithstanding the fact that a defendant may ultimately be vulnerable to imprisonment if the diversion is revoked and the defendant is convicted of the underlying DUI offense, the Sixth Amendment right to counsel does not attach during the diversion proceedings.
Statutory Right to Counsel
Although there is not a constitutional right to counsel during DUI diversion proceedings, the Kansas statutes governing DUI diversion agreements in both district court and municipal court include language regarding a statutory right to counsel: “[T]he defendant shall be present and shall have the right to he represented by counsel at the diversion conference with the district [or city] attorney.” (Emphasis added.) K.S.A. 22-2907(3); see K.S.A. 2012 Supp. 12-4414(c). This language notwithstanding, our court has previously stated: “There is no statutory requirement in this state mandating that a defendant have counsel to enter into a misdemeanor diversion agreement.” Paletta, 20 Kan. App. 2d at 866. Moreover, tire panel in Paletta further opined: “This statutory provision does not mandate that counsel be provided for a defendant nor void any diversion agreement entered into without counsel.” 20 Kan. App. 2d at 866.
We mostly agree with the Paletta panel’s conclusions as to the nature of this statutory right. First, we agree that a defendant is not required to have counsel in order to enter into a valid diversion agreement as that right may be knowingly and voluntarily waived. K.S.A. 2012 Supp. 22-2909(a); K.S.A. 2012 Supp. 12-4416(a). Second, we agree that this statutory right to counsel does not mandate that counsel be provided because any Kansas statute requiring counsel and requiring the appointment of counsel in case of the defendant’s indigence specifically says so. See, e.g., K.S.A. 12-4405 (some municipal cases); K.S.A. 22-2805(b) (material witness in custody); K.S.A. 22-3104(1) (counsel for inquisition witness); K.S.A. 2012 Supp. 22-3428a(2) (annual hearing for committed mentally ill person); K.S.A. 2012 Supp. 22-3716(b) (probation revocation hearing); K.S.A. 22-4503(a) and (b) (felony cases); K.S.A. 2012 Supp. 38-2205 (parents in CINC case); K.S.A. 2012 Supp. 59-29a06(b) (sexual predator commitment proceeding); K.S.A. 59-3063 (proposed ward); K.S.A. 2012 Supp. 65-129c(d)(10) (health official ordered isolation or quarantine); see also Supreme Court Rule 183(i) (2013 Kan. Ct. R. Annot. 278) (right to counsel in K.S.A. 60-1507 proceeding where motion presents substantial question of law or triable issue of fact). Third, we express no view as to whether an uncounseled diversion is void in the absence of a valid waiver but would certainly agree that a diversion agreement is not void where there has been a knowing and voluntary waiver of counsel.
Does a Valid Waiver of Defendant’s Right to Counsel Require Judicial Certification?
In this case, the district court ruled Tims’ prior uncounseled diversion agreement was invalid because there was no indication the municipal court judge fulfilled his or her duty to inform Tims of his rights or that Tims made a knowing and voluntary waiver of those rights. The court relied on Hughes and Gilchrist, which both address what is required for a proper waiver of counsel before a defendant may be convicted of a misdemeanor in municipal court.
Requirements for a proper waiver include evidence establishing that “the defendant has been jfully advised and properly informed of his or her right to counsel and, second, whether, upon having been fully advised and properly informed, the defendant made a clear determination not to have counsel represent him or her before the court.” Hughes, 290 Kan. at 169 (citing Gilchrist, 238 Kan. at 209). The Hughes court concluded that the record must somehow “establish that the judge has satisfied the obligation to insure that the proper information has been communicated so that tire defendant may intelligently make that choice.” 290 Kan. at 172. Here, the district judge found Tims’ prior uncounseled diversion agreement to be invalid because he found no evidence of any type of judicial certification or that Tims ever waived his right to counsel before a judge during the diversion conference.
However, the diversion conference and the formation of the diversion contract do not involve die adjudication of the defendant’s guilt or innocence before the municipal court. Therefore, Hughes and Gilchrist do not apply or dictate whether some land of judicial certification is needed to waive a defendant’s statutory right to have counsel present during die diversion conference. See Miller, 2013 WL 1943153, at *7 (waiver of right to counsel in diversion agreement need not be certified by, or completed before, a judge). Any waiver of this right must simply be done knowingly and voluntarily. The only record provided from Tims’ 2002 DUI diversion case is the diversion agreement itself.
The text of the diversion agreement in pertinent part reads:
“This agreement is voluntarily entered into by the above-named defendant and the Office of the City Attorney of Topeka, Kansas ....
“The defendant understands he/she has the following rights in this case: The right to a speedy arraignment; the right to a trial to the Court. . . ; the right to be represented at all stages of this case by a lawyer of his/her own choosing or; if without funds with which to hire a lawyer and found by the Court to be indigent, by a court-appointed lawyer. Knowing these rights, the defendant by signing this agreement, knowingly and voluntarily gives up these rights, including the right to a lawyer if not represented by one in this case.” (Emphasis added.)
The diversion agreement notes Tims was pro se when he entered into the agreement. There is no signature on the line dedicated to “Attorney for Defendant.” The diversion is signed by Tims and by the attorney for the City of Topeka.
Our Supreme Court has held diversion agreements are to be interpreted in accordance with contract principles. Chamberlain, 280 Kan. at 245. Our review of a written contract is unlimited. Stechschulte v. Jennings, 297 Kan. 2, 14, 298 P.3d 1083 (2013). “ ‘The primary rale for interpreting written contracts is to ascertain the parties’ intent. If the terms of the contract are clear, the intent of tire parties is to be determined from the language of the contract without applying rales of construction.’ ” Stechschulte, 297 Kan. at 15 (quoting Anderson v. Dillard’s, Inc., 283 Kan. 432, 436, 153 P.3d 550 [2007]).
Tims raises no argument challenging the content of the diversion agreement or the capacity of either party to enter into the agreement. He merely challenges whether the waiver of his right to counsel was valid. The language in the contract specifically states that after knowing tire stated rights, including his right to counsel, tire defendant “knowingly and voluntarily gives up these rights, including the right to a lawyer if not represented by one in this case.” By applying die well-known rules of contracts, we conclude Tims knowingly and voluntarily waived his right to be represented by an attorney during the diversion conference. Moreover, we hold the waiver language also complies with the requirements set forth in Gilchrist, 238 Kan. at 212.
Conclusion
In summary, a defendant does not have a Sixth Amendment right to appointed counsel but does have a statutory right to privately retained counsel during DUI diversion proceedings. The diversion conference and the formation of the diversion contract do not involve the adjudication of the defendant’s guilt or innocence or any other proceeding before the municipal court; therefore, the requirement set out in Htighes and Gilchrist that a judge must be sufficiently involved in a defendant’s waiver of rights does not apply to the contractual waiver of the defendant’s statutory right to counsel in the diversion agreement. Applying the well-known rules of contracts, when the contract unambiguously states a party is knowingly and voluntarily giving up the right to be represented, the court honors the terms of the contract. Tims’ 2002 DUI diversion, though uncounseled, was valid and qualifies as a conviction under K.S.A. 2011 Supp. 8-1567(j)(l). Therefore, the district court should have counted the diversion as a past DUI conviction and found Tims’ 2012 DUI to be his third conviction, a felony.
The judgment of the district court is reversed, and the case is remanded for resentencing as a felony conviction for a third DUI. | [
-112,
-22,
-36,
62,
-98,
-128,
34,
20,
64,
-9,
-2,
114,
-19,
-46,
1,
59,
-21,
93,
117,
73,
-47,
-73,
23,
-127,
-74,
-69,
9,
70,
-12,
79,
124,
-10,
78,
-16,
-126,
53,
6,
75,
-73,
88,
-114,
4,
-71,
73,
81,
-125,
60,
107,
23,
15,
49,
15,
-77,
42,
24,
-61,
-55,
108,
91,
59,
-56,
-48,
-39,
-107,
121,
2,
-93,
20,
-100,
-127,
80,
45,
-108,
57,
41,
-24,
115,
-106,
-126,
-12,
15,
-103,
-123,
102,
98,
33,
17,
-49,
-91,
-7,
63,
46,
61,
-82,
-104,
89,
65,
-116,
-105,
-36,
118,
54,
14,
-4,
108,
7,
25,
109,
-106,
-33,
-72,
-111,
79,
53,
-122,
50,
-1,
5,
48,
97,
-59,
-58,
84,
-43,
115,
27,
-53,
-106
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied. ,.
Unpublished | [
21,
121,
77,
63,
-88,
-79,
57,
62,
-126,
-113,
103,
119,
-49,
-21,
-116,
-37,
-83,
103,
-76,
91,
77,
19,
127,
-27,
98,
91,
-110,
-11,
113,
111,
-6,
56,
76,
56,
-102,
69,
-30,
-128,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
35,
104,
15,
17,
-43,
-15,
-114,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
75,
-64,
126,
20,
-80,
37,
-24,
114,
-26,
-122,
85,
15,
-7,
-108,
32,
10,
32,
-84,
-67,
40,
-68,
79,
94,
45,
-124,
-5,
33,
75,
57,
-102,
-3,
16,
-111,
35,
60,
34,
-124,
47,
-24,
46,
-17,
116,
-93,
31,
40,
12,
9,
-9,
-10,
16,
53,
-57,
-11,
-52,
-14,
53,
-118,
-58,
48
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Per Curiam-.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Scott C. Stockwell, of Lawrence, an attorney admitted to the practice of law in Kansas in 1984.
On July 19, 2012, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on August 9, 2012, and an amended answer on September 14, 2012. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on September 18, 2012, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 3.3(a)(1) (2012 Kan. Ct. R. Annot. 582) (candor toward the tribunal), 3.5(c)(2) (2012 Kan. Ct. R. An-not. 595) (communication with a judge without delivering copy in writing to opposing counsel), and 3.5(c)(3) (communication with a judge without notifying opposing counsel).
Upon conclusion of the hearing, the panel made the following findings of fact, conclusions of law, and recommendation to this court:
“FINDINGS OF FACT
“6. On February 29, 2000, [L.R.B.] executed a last will and testament. Daryl Graves, a Lawrence attorney, drafted Mr. [BJ’s will. In Mr. [BJ’s will, Mr. [B] named his sons, [K.B.] and [J.B.], as executors of his estate.
“7. On December 4, 2010, Mr. [B.], a Jefferson County resident, died. Mr. [B.] ’s estate consisted of real property and personal property. Mr. [B] was survived by his wife, [Mrs. B.], and his two adult sons. [Mrs. B.] is [K.Bj’s and [J.B.J’s step-mother.
“8. Following the death of their father, later in December 2010, [K.B.] and [J.B.] contacted Mr. Graves. As a result, Mr. Graves referred [K.B.] and [J.B.] to Kyle Brittingham for representation.
“9. Also in December 2010, Mrs. [B.] sought representation. Initially, Mrs. [B.J contacted Mr. Graves for representation. Mr. Graves informed Mrs. [B.] that he could not represent her. Thereafter, Mrs. [B.] retained the Respondent.
“10. In January 2011, Mr. Brittingham provided the Respondent with a copy of Mr. [BJ’s 2000 last will and testament, a copy of Mr. [BJ’s living will, a copy of powers of attorney, and a copy of a waiver. The waiver, purportedly signed by Mrs. [BJ, released her claim to real property owned by Mr. [B.]. Mrs. [B.] denied signing the release. Later, the Respondent retained Barbara Downer, an experienced handwriting expert to compare the signature on the waiver with Mrs. [BJ’s signature. Mrs. Downer concluded that the signature on the waiver was not Mrs. [BJ’s signature.
“11. On February 6, 2011, the Respondent wrote to Mr. Brittingham regarding Mr. [BJ’s estate. The letter provided, in pertinent part:
‘You have provided me with a purported will of [Mr. BJ. It is my understanding that the original of that document has not been located, which by law would make it presumptively revoked.’
“12. On Friday, February 18, 2011, the Respondent and Mrs. [BJ met with Mr. Brittingham, [K.B.], and [J.B.]. During that meeting, Mr. Brittingham showed the Respondent and Mrs. [B.], Mr. [BJ’s original will.
“13. On Tuesday, February 22,2011, the Respondent had an exporte meeting with the Honorable Dennis L. Reiling, a district magistrate judge for Jefferson County regarding Mr. [BJ’s estate. During the meeting, the Respondent filed a petition for appointment of administrator under the Kansas Simplified Estates Act, a petition for appointment of special administrator, and an order for hearing on petition for appointment of administrator under the Kansas Simplified Estates Act to Judge Reiling, in case number 2011PR10, In the Matter of the Estate of [Mr. BJ. The Respondent failed to inform Mr. Brittingham of the meeting with Judge Reiling.
“14. In the Respondent’s petition for appointment of administrator under the Kansas Simplified Estates Act and the order for appointment of a special administrator, the Respondent stated that Mr. [B.] died intestate. The Respondent made no mention of Mr. [BJ’s will in the pleadings. Additionally, the Respondent did not provide a copy of the pleadings to Mr. Brittingham, [K.B.], or [J.B.]. In the petition and order, the Respondent requested that Mrs. [BJ be appointed as the special administrator.
“15. According to Judge Reiling, the Respondent represented to him that Mr. [B.] died without a will. Judge Reiling does not remember tire Respondent telling him of the 2000 last will and testament that Mr. Brittingham showed the Respondent. Had the Respondent indicated to Judge Reiling that Mr. [B.] executed a will, Judge Reiling would not have approved the appointment of a special administrator.
“16. According to the Respondent, the Respondent informed Judge Reiling that Mr. [B.] executed a will but that the will was not valid.
“17. [K.B.] and [J.B.] learned of the pleadings that the Respondent filed in behalf of Mrs. [B.] from the newspaper. After it was clear that this matter would be contested, Mr. Brittingham referred [K.B.] and [J.B.] to Cheryl Denton, f/k/a Trenlrolm, for representation. Thereafter, Ms. Denton called the Respondent and asked him to correct the pleadings. The Respondent refused to correct the pleadings, stating that he had a good faith basis to believe that the will was not valid.
“18. On March 11,2011, Ms. Denton prepared a petition for vacation of order or modification of order. In the petition, Ms. Denton alleged:
‘4. In Paragraph 3 of die Petition for Administrator, [Mrs. B.] states that decedent died intestate, notwithstanding that [Mrs. B.] had actual knowledge that petitioners had in their possession decedent’s Will as petitioners’ former attorney, Kyle Brittingham, had given her attorney, Scott C. Stock-well, a copy of decedent’s Will on or before February 7, 2011, and petitioners and petitioners’ former attorney Kyle Brittingham, showed her and her attorney, Scott C. Stockwell, the original of decedent’s Will on February 18, 2011, during a meeting at Mr. Stockwell’s office.
‘5. [Mrs. B.] did not disclose the existence of decedent’s Will in her Petition for Administrator or in her Petition for Special Administrator, notwithstanding that she is a person with knowledge of decedent’s will and could be compelled to disclose this information under K.S.A. 59-2216.
‘6. Petitioners have a duty to present the decedent’s Will to the Court within six months of decedent’s death under K.S.A. 59-621, and K.S.A. [59]-618 provides for penalties for withholding a will. [Mi's. B.] had actual knowledge that the petitioners were in possession of decedent’s Will and intended to submit the decedent’s Will for probate. [Mrs. B.] cannot circumvent the fact that the decedent had made a will by filing the Petition for Administrator and stating to the Court that decedent died intestate when she had actual knowledge that decedent had made a Mil as this statement is misleading and untrue.
‘8. [Mrs. B.] filed the Petition for Administrator with full knowledge of decedent’s Will for the sole puipose of having herself appointed as special administrator to take control of the decedent’s estate before the petitioners could file a petition for probate of will and appointment of executor and without notice to the petitioners.
TO. Based on [Mrs. B.]’s representations in the Petition for Administrator and Petition for Special Administrator, the Court entered [sic] Order for Appointment of Special Administrator naming [Mrs. B.] as special administrator of the defendant’s estate and did not require notice to be given to the petitioners as tire Petition states the decedent died intestate and [Mrs.
B.], as the decedent’s surviving spouse, would be an heir of decedent and would appear to be a proper person to be appointed as special administrator pursuant to K.S.A. 59-709.
Tl. If notice had been given to petitioners, they could have disclosed to the Court that the decedent had made a will, and that under the decedent’s Mil, [Mrs. B.] receives nothing, and that they are the named executors, and that if the decedent’s Will is admitted to probate, [Mrs. B.] is likely to file a spousal elective share, which would make her a creditor of the estate and not a devisee or legatee under the decedent’s Will, and therefore, [Mrs. B.] is not a proper person to take control of decedent’s estate as special administrator due to a conflict of interest.’
“19. On March 28, 2011, Ms. Denton filed a written defense to the petition for appointment of administrator and a petition for probate of will and issuance of letters testamentary.
“20. On April 27, 2011, the Respondent filed a written defense and answer to the petition for vacation of order or modification of order.
“21. On July 13,2011, the court entered an order removing Mrs. [B] as special administrator because:
⅛) she filed verified petitions with this Court indicating that the decedent died intestate with actual knowledge that there was a written instrument dated February 28, 2000 entitled “Last Will and Testament of [Mr. B],” which misstated the facts to the Court, and
‘b) she has conflicts of interest with the estate as her position as spouse may be contrary to the intent of the decedent.’
The Court appointed [K.B.] and [J.B.] as co-special administrators.
“22. Later, on February 15, 2012, dre Court admitted Mr. [B.] ’s 2000 last will and testament and [K.B.] and [J.B.] were appointed as co-executors.
“CONCLUSIONS OF LAW
“23. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 3.3(a)(1) and KRPC 3.5(c), as detailed below.
“24. Lawyers may ‘not knowingly make a false statement of material fact or law to a tribunal.’ KRPC 3.3(a)(1). The Respondent made a false statement of material fact to Judge Reiling when he stated drat Mr. [B.] died intestate. Because the Respondent provided false information to the District Court, the Hearing Panel concludes that the Respondent violated KRPC 3.3(a)(1).
“25. KRPC 3.5 provides:
‘A lawyer shall not:
(c) communicate or cause another to communicate as to the merits of a cause with a judge or official before whom an adversary proceeding is pending except:
(1) in the course of official proceedings in the cause;
(2) in writing, if the lawyer promptly delivers a copy of the writing to opposing counsel or to the adverse party if unrepresented;
(3) orally upon adequate notice to opposing counsel or the adverse party if unrepresented;
(4) as otherwise authorized by law or court rule;’
The Respondent violated KRPC 3.5(c)(2) when he filed pleadings without providing a copy of the pleadings to Mr. Brittingham. Additionally, the Respondent violated KRPC 3.5(c)(3) when he met with Judge Reiling ex parte without providing notice to Mr. Brittingham. As such, the Hearing Panel concludes that the Respondent violated KRPC 3.5(c)(2) and KRPC 3.5(c)(3).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“26. In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are die duty violated, die lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“27. Duty Violated. The Respondent violated his duty to the legal profession to maintain his personal integrity.
“28. Mental State. The Respondent knowingly violated his duty.
“29. Injury. As a result of die Respondent’s misconduct, die Respondent caused actual injuiy to his client, to the opposing side, and to die court.
“30. Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found die following aggravating factors present:
“31. Prior Disciplinary Ojfenses. In 2001, the Disciplinary Administrator informally admonished the Respondent. On December 17, 2004, the Kansas Supreme Court censured the Respondent for having violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.15(b), KRPC 1.15(d)(l)(ii), KRPC 8.4(a), and KRPC 8.4(g). In June 2007, the Disciplinary Administrator informally admonished die Respondent for having violated KRPC 1.15(d). In October 2007, the Disciplinary Administrator informally admonished die Respondent for violating KRPC 1.1 and KRPC 1.3.
“32. Dishonest or Selfish Motive. The Respondent engaged in dishonest conduct when he stated in die pleadings that Mr. [B.] died intestate, when he failed to inform Judge Reiling that Mr. [B.] executed a last will and testament, when he failed to provide Mr. Brittingham with a copy of the pleadings, and when he failed to inform Mr. Brittingham that he met with Judge Reiling. Accordingly, the Hearing Panel concludes that the Respondent’s misconduct was motivated by dishonesty.
“33. Submission of Fake Evidence, False Statements, or Other Deceptive Practices During the Disciplinary Process. Throughout the disciplinary hearing, the Respondent failed to directly respond to questions asked. The Respondent’s nonresponsive answers to questions was a deceptive practice.
“34. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law in 1984. Thus, at the time he committed tire misconduct, the Respondent had 27 years of experience practicing law.
“35. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“36. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent provided three letters of support from Lawrence attorneys. According to the letters, the Respondent possesses good character and reputation.
“37. Remoteness of Prior Offenses. Some of the Respondent’s previous dis-ciplinaiy history is remote in time.
“38. In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered tire following Standards:
‘6.12 Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a parly to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.’
“RECOMMENDATION
“39. The Disciplinary Administrator recommends that the Respondent’s license be suspended for a period of three years. However, the Disciplinary Administrator also recommended that the imposition of the suspension be stayed and that tire Respondent be placed on probation for a period of three years, subject to th'e terms outlined in the proposed probation plan. The Respondent urged the Hearing Panel to recommend to the Supreme Court that the Respondent be placed on probation, subject to the terms and conditions detailed in the proposed probation plan.
“40. Kan. Sup. Ct.,R. 211(g) details when probation is appropriate. That rule provides:
‘(1) If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, the Respondent shall provide each member of the Hearing Panel and the Disciplinary Administrator with a workable, substantial, and detailed plan of probation at least ten days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that will protect the public and ensure the Respondent’s full compliance with the disciplinary rules and orders of the Supreme Court.
‘(2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator with a plan of probation, the Respondent shall immediately and prior to tire hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of the probation plan.
‘(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least ten days prior to the hearing on the Formal Complaint;
(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
(iii) die misconduct can be corrected by probation; and
(iv) placing die Respondent on probation is in the best interests of the legal profession and die citizens of the State of Kansas.’
“41. The Hearing Panel seriously considered the parties’ recommendation of probation in this case. However, the Hearing Panel is unable to recommend that the Respondent be placed on probation because all the requirements of Kan. Sup. Ct. R. 211(g) have not been met. First, the Respondent complied with Kan. Sup. Ct. R. 211(g)(3)(i) by developing a workable, substantial, and detailed plan of probation and by providing a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least ten days prior to the hearing on the Formal Complaint.
“42. Next, Kan. Sup. Ct. R. 211(g)(3)(ii) requires a Respondent to place the plan of probation into effect prior to the hearing on the Formal Complaint. The Respondent and his proposed supervisor testified that as of the date of the hearing on tire Formal Complaint, the Respondent had not put the plan of probation into effect. As such, the Respondent failed to comply with Kan. Sup. Ct. R. 211(g)(3)(B).
“43. Third, the Respondent’s misconduct involved dishonest conduct. The Respondent stipulated to a violation of KRPC 3.3(a)(1), by making a false state ment of material fact to the court. Dishonest conduct cannot be corrected by probation.
“44. Finally, placing the Respondent on probation is not in the best interests of the legal profession and the citizens of the State of Kansas. This misconduct goes to the core of an attorney’s oath: misrepresentation to a judge to gain an advantage in litigation. The public and the profession need to be protected from attorneys who engage in dishonest conduct.
“45. Based upon the findings of fact, conclusions of law, and die Standards listed above, the Hearing Panel unanimously recommends diat the Respondent be suspended from the practice of law for a period of one year.
“46. Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers tire evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of the KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2012 Kan. Ct. R. Annot. 350). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
The respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of both the hearing before the panel and the proceedings before this court. The respondent filed no exceptions to the hearing panel’s final hearing report. Hence, the panel’s findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2012 Kan. Ct. R. An-not. 368).
Furthermore, the evidence before the hearing panel establishes the charged misconduct of the respondent by clear and convincing evidence and supports the panel’s conclusions of law. We therefore also adopt the panel’s conclusions and determine that the respondent violated KRPC 3.3(a)(1) (2012 Kan. Ct. R. Annot. 582) (candor toward the tribunal), 3.5(c)(2) (2012 Kan. Ct. R. Annot. 595) (communication with a judge without delivering copy in writing to opposing counsel), and 3.5(c)(3) (communication with a judge without notifying opposing counsel).
The only remaining issue before us is the appropriate discipline. At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator concurred with the hearing panel’s unanimous recommendation of a 1-year suspension. This recommendation was based on two factors: (1) the respondent’s failure to put. his probation plan into effect by the date of the panel’s hearing as required by the rules of this court and (2) a concern about public safety because the underlying misconduct involved dishonesty. The respondent requested 3 years’ supervised probation.
“The recommendation of the panel or the Disciplinary Administrator as to sanctions to be imposed shall be advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those recommended . . . .” Supreme Court Rule 212(f) (2012 Kan. Ct. R. Annot. 370). In this case, we agree with the recommendation of the hearing panel and the Disciplinary Administrator. Probation is not appropriate in this case where the respondent failed to comply with Supreme Court Rule 211(g)(2). Moreover, this court is generally reluctant to grant probation where the misconduct involves fraud or dishonesty because supervision, even the most diligent, often cannot effectively guard against dishonest acts.
In addition, because of the respondent’s comments at the hearing before this court- regarding the benefit and even necessity of his practice being supervised, we impose a requirement of a reinstatement hearing under Supreme Court Rule 219 (2012 Kan. Ct. R. Annot. 398), as amended December 1, 2012. At that hearing, we direct the respondent, the office of the Disciplinary Administrator, and the reinstatement hearing panel to consider whether reinstatement is appropriate under the provisions of that rule and, if so, whether reinstatement should be conditioned on the respondent’s agreement to a period of supervision or other limitation of his practice.
Conclusion and Discipline
It Is Therefore Ordered that Scott C. Stockwell be suspended from the practice of law in the state of Kansas for a period of 1 year, effective on the filing of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2012 Kan. Ct. R. Annot. 294).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2012 Kan. Ct. R. Annot. 397), as amended December 1,2012, and in the event the respondent seeks reinstatement, he shall comply with Supreme Coult Rule 219.
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
-80,
108,
-99,
-100,
8,
97,
58,
40,
89,
-13,
101,
83,
-49,
-6,
5,
107,
113,
9,
-47,
105,
84,
-75,
127,
-128,
102,
-5,
-8,
-41,
-80,
95,
-28,
-33,
73,
96,
-94,
-59,
-58,
-54,
-43,
-46,
-122,
2,
11,
-12,
91,
65,
-80,
-19,
31,
15,
21,
-66,
-77,
43,
21,
-17,
72,
104,
-33,
-81,
65,
-111,
-113,
-107,
126,
21,
-96,
-124,
-100,
-113,
80,
43,
-104,
57,
9,
-20,
115,
50,
-110,
116,
111,
-51,
9,
118,
98,
35,
1,
-27,
-80,
-104,
15,
56,
13,
39,
-103,
89,
97,
13,
-74,
-98,
117,
4,
35,
-4,
-28,
70,
25,
-88,
6,
-49,
-44,
-109,
-34,
100,
-98,
-118,
-22,
-62,
32,
81,
-104,
-26,
85,
-57,
112,
-101,
-113,
-80
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
56,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
55,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
The opinion of the court was delivered by
Luckert, J.:
Christopher M. Trotter appeals from the district court’s summary denial of his pro se motion to correct an illegal sentence in which he requested that his capital murder conviction be reversed because the complaint did not list the names of both individuals whose deaths served as the basis for the capital murder charge. We affirm the summary denial of Trotter’s motion because a motion to correct an illegal sentence under K.S.A. 22-3504 cannot be used to collaterally challenge a conviction. Further, we deny his request to treat the motion under K.S.A. 60-1507 because: (1) It would be a successive K.S.A. 60-1507 motion that has not been justified by a showing of exceptional circumstances and (2) it would be outside the 1-year time limitation in K.S.A. 60-l507(f)(l), and he has not shown that an extension of that deadline is necessaiy to prevent manifest injustice.
Facts and Procedural Background
This is Trotter’s third time to seek this court’s attention. He first brought a direct appeal after a jury convicted him of premeditated first-degree murder, capital murder, aggravated robbeiy, and conspiracy to commit aggravated robbery. State v. Trotter, 280 Kan. 800, 127 P.3d 972 (2006) (Trotter I). The charges resulted from the 2001 murders of Traylennea Huff and James Darnell Wallace. The victims were shot and felled during the course of an aggravated robbery, which Trotter and others had planned in tire hopes of stealing cash they believed to be in Huffs and Wallace’s home. This court affirmed Trotter’s convictions. Trotter I, 280 Kan. at 819-20.
Next, Trotter appealed from the district court’s denial of a K.S.A. 60-1507 motion. In Trotter v. State, 288 Kan. 112, 200 P.3d 1236 (2009) (Trotter II), this court affirmed portions of the district court’s decision to summarily deny Trotter’s motion but reversed other portions. Specifically, the Trotter II court affirmed the dismissal of Trotter’s claims that (a) his counsel was ineffective for failing to request an eyewitness jury instruction and (b) affidavits of Trotter’s codefendants constituted newly discovered evidence warranting a new trial. Trotter II, 288 Kan. at 134, 139. Relief was granted, however, on Trotter’s contention that defense counsel was ineffective for failing to raise a multiplicity issue on direct appeal. Trotter II, 288 Kan. at 131.
Considering the merits of the issue, this-court held that Trotter’s convictions for capital murder and premeditated first-degree murder were multiplicitous in that premeditated first-degree murder is a lesser included offense of capital murder. Trotter II, 288 Kan. at 124; see State v. Martis, 277 Kan. 267, 276-77, 83 P.3d 1216 (2004) (premeditated first-degree murder is lesser included offense of capital murder by application of K.S.A. 21-3107[2][b]). In the fourth amended information, the State had charged Trotter in count I, premeditated first-degree murder, with “unlawfully, fe-loniously and intentionally and with premeditation, ldll[ing] a human being, to-wit: James Wallace ....” In count II, capital murder, Trotter was charged with “unlawfully, feloniously and intentionally and with premeditation, killfing] a human being, to-wit: Traylennea Huff, which constituted the killing of more than one person as a part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct.” (Emphasis added.)
As acknowledged by Trotter in Trotter II, the jury was instructed that one of the elements to be proved in the capital murder charge was that “ ‘the premeditated and intentional killing of Traylennea Huff and James Wallace were part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct/ ” Trotter II, 288 Kan. at 120-21. And because the State was also required to prove the premeditated, intentional killing of one of those victims, Wallace, in the first-degree murder charge, Trotter could not be convicted of both the lesser included offense and the greater offense arising from the same conduct. As a result, Trotter s premeditated first-degree murder conviction was reversed. Trotter II, 288 Kan. at 131; see State v. Winters, 276 Kan. 34, 43, 72 P.3d 564 (2003) (“where convictions are multiplicitous the defendant should be sentenced only on the more severe offense”). In his pro se brief, Trotter mistakenly asserts that this court reversed the first-degree murder conviction for “re-trial and the State elected not to re-try Trotter.”
Significant to the current appeal, in finding the two murder convictions were multiplicitous, the Trotter II court also noted that Trotter did “not object to-the manner in which the charge was pled or to the instructions.” Trotter II, 288 Kan. at 121. Thus, in Trotter II, he did not advance .any arguments pertaining to the sufficiency of the charging document.
Over 1 year after that decision became final and more than 4 years after the decision in Trotter I, Trotter filed the current pro se motion in April 2010 to correct an illegal sentence under K.S.A. 22-3504, arguing that because capital murder requires the intentional and premeditated killing of more tiran one person, and count II of the information only listed one victim, Huff, the information was defective. In his motion, Trotter again acknowledged that the jury was instructed using the names of both victims, Huff and Wallace, but he argued:
“The District Court lacked jurisdiction over the subject matter to convict and sentence the defendant for the offense of Capital Murder, K.S.A. 21-3439, because the Complaint/Information was jurisdictional[ly] defective because, it failfed] to allege essential elements of the crime charged. Thus resulting in the defendant being convicted, and sentencefd] for a criminal offense the defendant was [sic] originality] charged with.”
The district court summarily denied the motion, finding that “[w]hile the defendant has couched his motion in terms of an illegal sentence, it is clearly a collateral attack. . . upon the conviction for Capital Murder.” It noted that this court has repeatedly held that a motion to correct an illegal sentence “cannot be used to allege a defective information.”
Trotter filed a timely appeal. This court has jurisdiction under K.S.A. 2012 Supp. 22-3601(b)(3) (maximum sentence of life imprisonment imposed).
Analysis
Trotter contends tire district court erred in summarily denying his pro se motion to correct an illegal sentence. He challenges whether the information was fatally defective and deprived tire district court of jurisdiction to convict him of capital murder. Trotter asks this court to reverse his capital murder conviction.
Standard of Review
Trotter s motion was filed pursuant to K.S.A. 22-3504. When, as here, a district court summarily denies a motion to correct an illegal sentence under K.S.A. 22-3504, this court applies a de novo standard of review “ ‘because appellate courts have the same access to the motion, records, and files as the district court.’ ” State v. Heronemus, 294 Kan. 933, 935, 281 P.3d 172 (2012) (quoting State v. Howard, 287 Kan. 686, 691, 198 P.3d 146 [2008]). Like the district court, this court is asked to determine if these same documents “conclusively show that he is entitled to no relief.” State v. Neal, 292 Kan. 625, 629, 258 P.3d 365 (2011).
KS.A. 22-3504
Significantly, K.S.A. 22-3504 only applies if the sentence is illegal. State v. Chavez, 292 Kan. 464, 465, 254 P.3d 539 (2011); State v. Harp, 283 Kan. 740, 744, 156 P.3d 1268 (2007). The question of whether a sentence is illegal is a question of law over which this court has unlimited review. Neal, 292 Kan. at 630. This court has defined an “illegal sentence” as (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in the character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served. State v. Harsh, 293 Kan. 585, 588, 265 P.3d 1161 (2011); State v. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 (2010); State v. Nash, 281 Kan. 600, 601, 133 P.3d 836 (2006).
Trotter contends his motion falls under the first category—the court did not have jurisdiction to impose his sentence. Yet, he attacks not his sentence alone, but seeks a reversal of his capital murder conviction. This court has repeatedly stated that the relief available under K.S.A. 22-3504 is correction of a sentence, not reversal of a conviction. See State v. Williams, 283 Kan. 492, 495-96, 153 P.3d 520 (2007) (stating that K.S.A. 22-3504 is “not a vehicle for a collateral attack on a conviction”). More specifically, this court has repeatedly held “a motion to correct an illegal sentence is an inappropriate vehicle to dispute whether a complaint was defective because such a claim challenges the conviction, not the sentence. [Citations omitted.]” State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012); see, e.g., State v. Deal, 286 Kan. 528, 529-30, 186 P.3d 735 (2008) (arguing the complaint was defective); Nash, 281 Kan. at 601-02 (same).
Trotter asserts there is an exception to this rule where the defendant questions whether the criminal complaint failed to confer jurisdiction. Yet, he fails to distinguish Sims or similar cases, which are directly on point and control this issue. He cites and relies on State v. Davis, 281 Kan. 169, 130 P.3d 69, cert. denied 549 U.S. 823 (2006), however, which is distinguishable.
Davis is part of a line of cases in which this court has considered an appeal of a denial of a motion to correct an illegal sentence where the defendant argues that he or she requested a competency determination, but the district court failed to suspend proceedings. In that line of cases, defendants have argued on appeal that a district court does not have jurisdiction to sentence a.defendant without first conducting a competency determination as required by statute. See Davis, 281 Kan. at 176 (seeking review of district court and Court of Appeals decisions holding that sentence was not illegal because district court had jurisdiction to sentence even though proceedings were not suspended while competency was determined).
Indeed, as these defendants argued, the district court was deprived of jurisdiction to conduct a sentencing—and all other phases of a criminal proceeding—because K.S.A. 22-3302(1) mandates that “tire proceedings shall be suspended” if defense counsel requests a competency evaluation and the district court finds there is reason to believe the defendant is incompetent. The only proceedings that may occur in that situation are those related to the determination of competency. Only after a judicial determination that the defendant is competent may the proceeding resume. See, e.g., State v. Murray, 293 Kan. 1051, 1054-55, 271 P.3d 739 (2012) (defendant was entitled to evidentiaiy hearing on his motion to correct an illegal sentence to determine whether a competency hearing was held prior to aggravated robbery and felony-murder trial); Davis, 281 Kan. at 177; see also State v. Foster, 290 Kan. 696, 702, 233 P.3d 265 (2010) (criminal trial of incompetent defendant raises due process concerns); State v. McKinney, 265 Kan. 104, 107, 961 P.2d 1 (1998) (same) (citing Medina v. California, 505 U.S. 437, 453, 112 S. Ct. 2572, 120 L. Ed. 2d 353 [1992]). In other words, if a competency determination is not made, the district court loses jurisdiction to continue the criminal proceeding, including the sentencing phase.
In contrast, this case does not deal with the district court’s failure to suspend the criminal proceeding, including the sentencing, as required by statute. Here, once Trotter was convicted of the crime, the district court could continue with the proceeding and sentence him accordingly. See K.S.A. 2012 Supp. 22-3208(3), (4), (5) (discussing procedure for handling motion to dismiss based on defect in complaint, potential waiver, and potential deferment of motion). To overturn the sentence because of a defect in the complaint, Trotter must obtain a reversal of his conviction, and a motion to correct an illegal sentence cannot be used as a vehicle for a collateral attack on a conviction. We reiterate what this court has made clear: Defective complaint claims are not properly raised in a motion to correct an illegal sentence under K.S.A. 22-3504. See Sims, 294 Kan. at 825.
KS.A. 60-1507
In the alternative, Trotter’s appellate counsel implies that this court should treat Trotter’s pro se motion as a motion under K.S.A. 60-1507. See State v. Swisher, 281 Kan. 447, 449, 132 P.3d 1274 (2006) (pro se motion to correct an illegal sentence treated as filed under K.S.A. 60-1507); Love v. State, 280 Kan. 553, 557, 124 P.3d 32 (2005) (same). There are two reasons we reject this request.
First, under K.S.A. 60-1507(c), a court is not required to entertain successive motions on behalf of the same prisoner. State v. Mitchell, 284 Kan. 374, 379, 162 P.3d 18 (2007). In Walker v. State, 216 Kan. 1, Syl. ¶ 2, 530 P.2d 1235 (1975), we stated: “A [movant] in a 60-1507 motion is presumed to have listed all grounds for relief and a subsequent motion need not be considered in the absence of [a showing of] circumstances justifying the original failure to list a ground.” Trotter has not argued any circumstances that warrant this successive motion, especially in light of the subject matter and relief granted in Trotter II. See Supreme Court Rule 183(d) (2012 Kan. Ct. R. Annot. 274); State v. Kelly, 291 Kan. 868, 872-73, 248 P.3d 1282 (2011).
Second, K.S.A. 60-1507(f)(1) states in pertinent part: “Any action under this section must be brought within one year of: (i) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction.” Trotter’s pro se motion to correct an illegal sentence was filed over 4 years after this court terminated its jurisdiction in Trotter I, his direct appeal. The only exception to the 1-year period of limitation is stated in K.S.A. 60-1507(f)(2), which provides that “[t]he time limitation herein may be extended by the court only to prevent a manifest injustice.” See Kelly, 291 Kan. at 873. Trotter makes no argument concerning manifest injustice, and his K.S.A. 60-1507 proceeding is procedurally barred as a result of the 1-year time limitation.
Trotter does argue correctly, however, that subject matter jurisdiction can be raised at any time. See State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010); see also In re Marriage of Hampshire, 261 Kan. 854, 862, 934 P.2d 58 (1997) (judgment rendered without subject matter jurisdiction is void; void judgment is nullity that may be vacated at any time). What Trotter fails to recognize in making this argument is that there must be a procedural vehicle for presenting the argument to the court. K.S.A. 60-1507 is the vehicle for post-conviction relief from the judgment of conviction and, as we have discussed, that vehicle is not available to Trotter.
The district court did not err in summarily denying Trotter’s pro se motion to correct an illegal sentence under K.S.A. 22-3504.
Affirmed. | [
-43,
-22,
-80,
63,
26,
-32,
59,
28,
112,
-9,
34,
83,
41,
-53,
1,
59,
83,
93,
81,
105,
82,
-77,
23,
-31,
-74,
-13,
-47,
87,
-10,
91,
-4,
-90,
12,
112,
-118,
85,
-58,
-54,
33,
94,
-114,
-126,
-104,
-63,
74,
67,
48,
106,
62,
11,
-79,
14,
-77,
107,
30,
-61,
72,
58,
90,
-83,
80,
-47,
-29,
-113,
-38,
16,
-93,
20,
-66,
70,
80,
54,
26,
57,
0,
-24,
49,
-122,
-126,
-44,
111,
-53,
-116,
110,
99,
33,
28,
-18,
41,
-103,
14,
94,
-121,
-89,
-103,
80,
99,
45,
-106,
-99,
124,
54,
3,
-4,
-17,
30,
-107,
-20,
3,
-34,
-72,
-109,
-119,
117,
-126,
-29,
-5,
4,
16,
113,
-49,
-30,
92,
-58,
48,
-65,
-34,
-76
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied.
Unpubhshed | [
19,
-3,
-28,
-67,
-120,
-128,
19,
30,
15,
-105,
119,
119,
-17,
-10,
-108,
107,
60,
111,
-91,
-38,
-39,
18,
127,
-31,
114,
91,
-78,
117,
-15,
-18,
-7,
56,
-50,
-78,
-102,
-107,
84,
-64,
-83,
-40,
-120,
6,
57,
76,
-79,
-45,
37,
3,
89,
15,
17,
-108,
113,
62,
26,
65,
-120,
100,
-59,
-67,
-64,
-33,
-71,
3,
-9,
92,
-62,
84,
-48,
9,
-62,
126,
-112,
-111,
1,
-8,
114,
102,
-122,
117,
11,
-39,
-91,
-24,
47,
33,
44,
-68,
-84,
-89,
19,
62,
45,
-90,
-45,
33,
74,
43,
-77,
-3,
-88,
-45,
47,
-24,
11,
-60,
45,
108,
34,
-82,
-12,
-93,
93,
60,
12,
-119,
-9,
86,
19,
49,
-49,
-15,
-36,
114,
-71,
-34,
-42,
-80
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied.
Unpubhshed | [
19,
-3,
-28,
-67,
-120,
-128,
19,
30,
15,
-105,
119,
119,
-17,
-10,
-108,
107,
60,
111,
-91,
-38,
-39,
18,
127,
-31,
114,
91,
-78,
117,
-15,
-18,
-7,
56,
-50,
-78,
-102,
-107,
84,
-64,
-83,
-40,
-120,
6,
57,
76,
-79,
-45,
37,
3,
89,
15,
17,
-108,
113,
62,
26,
65,
-120,
100,
-59,
-67,
-64,
-33,
-71,
3,
-9,
92,
-62,
84,
-48,
9,
-62,
126,
-112,
-111,
1,
-8,
114,
102,
-122,
117,
11,
-39,
-91,
-24,
47,
33,
44,
-68,
-84,
-89,
19,
62,
45,
-90,
-45,
33,
74,
43,
-77,
-3,
-88,
-45,
47,
-24,
11,
-60,
45,
108,
34,
-82,
-12,
-93,
93,
60,
12,
-119,
-9,
86,
19,
49,
-49,
-15,
-36,
114,
-71,
-34,
-42,
-80
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Granted
Unpublished | [
-123,
105,
-99,
31,
-86,
33,
58,
-98,
70,
-113,
98,
95,
-113,
-21,
28,
-39,
-89,
103,
-92,
83,
-36,
7,
119,
101,
-30,
-45,
-77,
-47,
113,
109,
-2,
-48,
78,
-96,
-102,
61,
-26,
-52,
-51,
88,
-122,
23,
-120,
-83,
-48,
97,
36,
35,
-56,
15,
81,
84,
96,
-82,
31,
81,
-52,
62,
-25,
-115,
81,
-19,
-99,
3,
-69,
-108,
-126,
85,
-100,
11,
-64,
102,
-112,
56,
37,
-86,
114,
-26,
-121,
85,
15,
-69,
-95,
4,
26,
48,
-68,
-3,
-80,
-84,
7,
-50,
45,
-92,
-119,
121,
75,
121,
27,
93,
8,
-108,
39,
124,
-29,
-123,
45,
34,
43,
-33,
102,
-93,
95,
40,
12,
11,
-5,
-73,
2,
54,
-49,
-74,
-36,
-30,
37,
11,
-62,
-73
] |
The opinion of the court was delivered by
Beier, J.:
Milano’s, Inc., appeals the Kansas Department of Labor’s determination that its exotic dancers are employees rather than independent contractors for purposes of unemployment insurance.
This case, arising on petition for review, involves the relationship between provisions in the Kansas Employment Security Law (KESL), K.S.A. 44-701 et seq., as they existed before amendments that took effect in 2011 on the one hand and common-law rules used to determine the existence of employee status on the other. In addition, Milano’s argues that the Department’s determination was not supported by substantial competent evidence and that the Court of Appeals erred by concluding that Milano’s had abandoned arguments on appeal.
Factual and Procedural History
Milano’s purchased Club Orleans in July 2002. After contacting the Department of Revenue, Milano’s President John Samples began treating the club’s dancers as independent contractors rather than employees in 2004. From that point forward, the dancers were no longer paid a nominal weekly wage, instead earning only tips paid by customers of Club Orleans.
In 2005, in response to an unemployment claim filed by a Club Orleans dancer, the Unemployment Tax Contributions Unit of the Kansas Department of Labor investigated. The Unit auditor assigned to the investigation, Mike Malian, determined that the dancers were employees under K.S.A. 44-703(i)(3)(D).
Milano’s challenged Malian’s determination, and a Department of Labor hearing officer heard testimony from Samples; Club Orleans manager Becky Kerley; dancers Robin Royal and Julane Hie-bert; Mahan; and three other Department employees, tax auditor Kelly Brader, supervisor E.W. “Slap” Sayler, and delinquent account supervisor Roc Biffinger.
The hearing officer determined that the dancers’ tips qualified as wages under K.S.A. 44-703(o). Further, because the dancers received wages, they were employees under K.S.A. 44-703(i)(3)(D), unless they fell within the exception outlined in K.S.A. 44-703(i)(3)(D)(i) and (ii).
The hearing officer cited four factual findings to support his conclusion that Milano’s controlled the activities of the dancers: First, the dancers were subject to house rules that prohibited illicit or illegal conduct and regulated interaction among the dancers and between the dancers and customers. Second, Kerley and Samples had testified that a dancer’s violation of the rules meant Milano’s could fine or terminate the dancer. Third, the rules set minimum tips for various types of dances. And, fourth, Milano’s enforced the house rules on minimum tips. The hearing officer acknowledged contraiy evidence from Milano’s, including the dancers’ ability to schedule their own shifts.
The hearing officer noted that the parties had no dispute about the fact that dancers performed all of their services at Club Or leans. The officer concluded that, despite Milano’s’ “creative assertion that a gentlemen’s club is merely a place with good atmosphere, good lighting and good food,” the facts reflected that the atmosphere of Club Orleans was largely derived from the presence of its semi-nude dancers.
Because the officer determined that the dancers received wages for services as defined by K.S.A. 44-703(i)(3)(D), and that K.S.A. 44-703(i)(3)(D)(i) and (ii) did not apply, he concluded that the dancers were employees under die KESL. He therefore ordered prospective relief, requiring Milano’s to develop and use an internal procedure for reporting its dancers’ tips and to further report the tips to the Department of Labor for purposes of paying its unemployment insurance contributions.
Milano’s filed a petition for judicial review, claiming that the hearing officer made findings of fact not supported by substantial competent evidence and disregarded undisputed facts, and that he incorrectly interpreted K.S.A. 44-703(i)(3)(D).
The district court judge agreed with the findings and conclusions of the hearing officer. The judge concluded that tips were wages under the plain language of K.S.A. 44-703(o). In response to Mil-ano’s’ argument that a contract of hire must exist before the dancers could be classified as employees, the judge concluded that such a contract existed because the dancers had to complete an application in which they agreed to abide by the house rules. The judge also ruled that Milano’s maintained a right to control the dancers and that their services were provided in the ordinary course of Milano’s business—noting that it provided a place to perform, that the dancers’ customers were customers of Club Orleans from whom it received a cover charge, that Milano’s instituted a minimum tip policy without input from the dancers, that the dancers were required to accept drinks from customers, and that Milano’s provided some supplies to die dancers. The judge also observed that one of die main purposes of Club Orleans was to entertain customers with the dancers’ performances. The club’s advertisements included billboards and internet activity incorporating images of the dancers. The club also provided a stage, music, and a tanning booth for the dancers.
Milano’s appealed to the Court of Appeals, which affirmed the decision of the district judge. Milano’s, Inc. v. Kansas Dept. of Labor, 43 Kan. App. 2d 779, 231 P.3d 1072 (2010). The appellate panel interpreted the plain language of K.S.A. 44-703(o) to cover the dancers’ tips as wages. 43 Kan. App. 2d at 784-85. Further, under the plain language of K.S.A. 44-703(i)(3)(D), the dancers qualified as employees who received wages, and Milano’s had been unable to meet its burden to demonstrate that it did not maintain a right of control over the dancers or that their services were performed outside its ordinary course of business. 43 Kan. App. 2d at 789.
We granted Milano’s petition for review.
Discussion
Actions of the Department of Labor are reviewable under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA). See K.S.A. 44-709(i). Milano’s, as the party arguing that the agency’s action is invalid, bears the burden of proving the invalidity. See K.S.A. 77-621(a)(1); Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010).
K.S.A. 77-621(c) lists eight categories of cases in which this court may grant relief from an agency decision. Milano’s appears to rely on two of them: subsection (c)(4), which applies if the Department of Labor abused its discretion by erroneously interpreting or applying a statute, in this case, K.S.A. 44-703(i)(1)(B), K.S.A. 44-703(i)(3)(D), and K.S.A. 44-703(o); and subsection (c)(7), which applies if the Department of Labor based its order on a determination of fact not supported by evidence in the record.
Interpretation of a statute raises a question of law reviewable de novo on appeal. See Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, 754, 189 P.3d 494 (2008); see also Powell, 290 Kan. at 567 (court no longer gives deference to agency interpretation of statute).
“When courts are called upon to interpret statutes, the fundamental rule governing our interpretation is that ‘die intent of the legislature governs if diat intent can be ascertained. The legislature is presumed to have expressed its intent through die language of die statutory scheme it enacted.’ State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001). For this reason, when the language of a statute is plain and unambiguous, courts ‘need not resort to statutory construction.’ In re 285 Kan. 53, 79, 169 P.3d 1025 (2007). Instead, ‘[w]hen the language is plain and unambiguous, an appellate court is bound to implement the expressed intent.’ State v. Manbeck, 277 Kan. 224, Syl. ¶ 3, 83 P.3d 190 (2004).
“Where a statute’s language is subject to multiple interpretations, however, a reviewing court ‘may look to tire historical background of the enactment, the circumstances attending its passage, tire purpose to be accomplished, and the effect tire statute may have under the various constructions suggested. [Citation omitted.]’ Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000). Generally, courts should construe statutes to avoid unreasonable results and should presume that the legislature does not intend to enact useless or meaningless legislation. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006). We ascertain tire legislature’s intent behind a particular statutory provision ‘from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of tire court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. [Citation omitted.]’ In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989); see also State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003). Thus, in cases that require statutory construction, ‘courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia.’ Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 (1975).” Bremby, 286 Kan. at 754-55.
As mentioned, the pertinent KESL subsections advanced by the parties for our consideration in this case are K.S.A. 44-703(i)(l)(B), K.S.A. 44-703(i)(3)(D), and K.S.A. 44-703(o). We must decide what they mean and how they fit together.
The first two contain definitions of “employment,” as that term is used in the KESL. K.S.A. 44-703(i)(l)(B) provides:
“ ‘Employment’ means:
(1) Subject to the other provisions of this subsection, service, including service in interstate commerce, performed by . . .
(B) any individual who, under the usual common lato rides applicable in determining the employer-employee relationship, has the status of an employee.” (Emphasis added.)
K.S.A. 44-703(i)(3)(D) provides:
“The term ‘employment’ shall also include:
(D) Services performed by an individual for wages or under any contract of hire shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the secretaiy that: (i) Such individual has been and will continue to be free from control or direction over the performance of such services, both under the individual’s contract of hire and in fact; and (ii) such service is either outside tire usual course of business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed.” (Emphasis added.)
K.S.A. 44-703(o) defines “wages” and provides:
“ ‘Wages’ means all compensation for services, including commissions, bonuses, back pay and the cash valúe of all remuneration, including benefits, paid in any medium other than cash. . . . Effective January 1, 1986, gratuities, including tips received from persons other than the employing unit, shall be considered wages when reported in writing to the employer by the employee. Employees must furnish a written statement to the employer, reporting all tips received if they total $20 or more for a calendar month whether tire tips are received directly from a person other than the employer or are paid over to the employee by the employer. This includes amounts designated as tips by a customer who uses a credit card to pay the bill.” (Emphasis added.)
The plain language of K.S.A. 44-703(i)(l)(B) states that employment is service provided by a person with the status of an employee as determined under common-law rules. See Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, 102, 689 P.2d 787 (1984). And past caselaw from this court, although mentioning K.S.A. 44-703(i)(3)(D), has focused primarily on evaluating common-law factors indicating employment under K.S.A. 44-703(i)(1)(B), particularly stressing the importance of the purported employer’s right of control over the employee and his or her work. See Hartford Underwriters Ins. Co. v. Kansas Dept. of Human Resources, 272 Kan. 265, 272, 275-76, 32 P.3d 1146 (2001) (personal care attendants for disabled person employees rather than independent contractors; disabled person controlled means, manner of job performance, including hiring, training, supervision; disabled person retained right to terminate); Wallis, 236 Kan. at 102-03 (citing Jones v. City of Dodge City, 194 Kan. 777, 779-80, 402 P.2d 108 [1965]) (dealers of vacuum cleaners employees of vacuum cleaner company; primary test of existence of employer-employee relationship whether employer has right of control, supervision over work of alleged employee; “It is not the actual interference or exercise or the control by the employer but the existence of the right or authority to interfere or control.”); Crawford v. Dept. of Human Resources, 17 Kan. App. 2d 707, 709-10, 845 P.2d 703 (1989), rev. denied 246 Kan. 766 (1990) (product demonstrators not employees; under Wallis, right to control, direct method, manner of work most significant; right to discharge, payment by hour rather than job, furnishing of equipment also factors).
If K.S.A. 44-703(i)(l)(B) does not settle the question in favor of a conclusion that employment exists, the plain language of K.S.A. 44-703(i)(3)(D) provides that employment “also” exists when a person performs services for wages “or” under “any contract of hire,” unless a specified exception is demonstrated to exist to the satisfaction of the Secretary of Labor. Either the performance of services for wages or a contract of hire is sufficient; both need not be present in order for this auxiliary definition of employment to be satisfied, in essence giving rise to a presumption that may be rebutted by the specified exception. The exception has two requirements: (1) The person must be free from any actual or contractual control by the purported employer over the person’s performance of the subject services, and (2) the services must be outside the usual course of the purported employer’s business or outside of the purported employer’s places of business.
If K.S.A. 44-703(i)(3)(D)’s auxiliary definition of employment comes into play, and there is no contract of hire, then the K.S.A. 44-703(o) definition of “wages” must be considered. That definition begins broadly: Wages include “all compensation for services.” But gratuities such as tips must be reported in order to give an employee any practical remedy: “[Tjips received from persons other than the employing unit [] shall be considered wages when reported in writing to the employer by the employee.” K.S.A. 44-703(o).
In short, if the hearing officer in this case had determined that the dancers at Club Orleans were employees of Milano’s under the common-law rules expressly incorporated into K.S.A. 44-703(i)(l)(B), then there would have been no need to examine whether the auxiliary definition of employment in K.S.A. 44-703(i)(3)(D) applied. Likewise, the hearing officer would not have needed to decide whether tire tips the dancer received from patrons of the club qualified as wages under K.S.A. 44-703(o).
But this is not the route the hearing officer and, later, our two lower courts, took. Instead, they focused on the auxiliary definition of employment in K.S.A. 44-703(i)(3)(D) and the existence or nonexistence of payment of wages for the dancers’ services under K.S.A. 44-703(o).
We regard this repeated pattern of analysis as unwarranted under the plain language of the KESL provisions outlined above. The finer points of what are now historical versions of K.S.A. 703(i)(3)(D) and K.S.A. 44-703(o) need not have been examined or applied, because the determinative question in this case can be answered more simply and directly by K.S.A. 44-703(i)(l)(B). If the dancers at Club Orleans had the status of employees under the “usual common law rules applicable in determining the employer-employee relationship,” as we have explained those rules in our caselaw, then they were employees under the KESL. As stated, the critical common-law factor is the employer’s right of control over the employee and his or her work.
Ample substantial competent evidence in the record before us, as echoed in the factual findings below, demonstrates that Milano’s possessed such a right of control over the dancers at Club Orleans. Most telling, the house set various rules, and dancers’ violations of those rules were punishable by fines and termination.
Having reached this conclusion, we need not take up the propriety of the Court of Appeals panel’s observation that Milano’s had abandoned certain arguments by failure to brief them on appeal. Even if the panel erred in this respect, it makes no difference in the outcome. We have fully considered all of Milano’s arguments on all issues.
Although we have traveled to the result by a route different from that followed below, the judgments of the hearing officer and district court are affirmed. The decision of the Court of Appeals is affirmed. | [
-112,
-6,
-39,
-20,
24,
-64,
50,
50,
99,
-61,
55,
83,
109,
-46,
20,
121,
-15,
109,
80,
107,
-41,
-77,
7,
8,
-54,
-13,
-7,
-35,
-71,
79,
-12,
20,
76,
113,
11,
-43,
-26,
-46,
-55,
24,
-118,
4,
2,
-55,
121,
1,
52,
122,
-70,
75,
113,
125,
-77,
44,
24,
-49,
-24,
56,
88,
45,
-16,
-16,
-21,
-123,
126,
20,
50,
21,
62,
-121,
-40,
58,
-102,
48,
49,
-24,
83,
-76,
-46,
52,
25,
57,
37,
34,
99,
48,
-107,
-81,
-20,
-112,
46,
-33,
-99,
-91,
-47,
89,
2,
73,
-106,
-99,
92,
22,
-118,
90,
-30,
21,
-97,
-84,
-117,
-50,
-58,
-77,
13,
117,
20,
-127,
-17,
102,
18,
113,
-42,
32,
108,
70,
50,
26,
-58,
-44
] |
Denied. ..
Unpublished | [
29,
105,
77,
62,
-88,
-79,
49,
62,
82,
-113,
103,
119,
-49,
-30,
-116,
-39,
-83,
103,
-76,
91,
79,
18,
127,
-27,
98,
-37,
-94,
-11,
113,
111,
-6,
56,
76,
56,
-102,
69,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-112,
-63,
36,
35,
72,
15,
17,
-44,
-15,
-114,
30,
65,
-64,
102,
-59,
-83,
-62,
-35,
-111,
23,
-65,
84,
-64,
85,
-48,
73,
-64,
110,
20,
-80,
37,
-24,
114,
102,
-121,
85,
15,
-7,
-76,
32,
10,
32,
-84,
-19,
40,
-68,
79,
94,
45,
-124,
-5,
40,
75,
121,
-101,
-3,
0,
-43,
39,
56,
34,
-124,
47,
-88,
46,
-17,
-28,
-93,
31,
40,
12,
9,
-13,
-10,
16,
53,
-49,
-9,
-52,
-78,
53,
-102,
-122,
52
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied.
50 Kan. App. 2d 606 | [
17,
107,
-19,
61,
-116,
-32,
-127,
30,
73,
-69,
119,
115,
-19,
-42,
4,
123,
-2,
79,
-80,
123,
-55,
-74,
127,
72,
82,
91,
-37,
-35,
-72,
107,
-12,
-76,
76,
-16,
-86,
-107,
70,
-62,
-83,
92,
-116,
4,
-71,
-51,
17,
-125,
56,
-29,
122,
7,
49,
-100,
-13,
44,
26,
64,
-63,
108,
-53,
-67,
-55,
-39,
-71,
-105,
-2,
20,
-32,
20,
-108,
-63,
80,
126,
-112,
-112,
37,
-24,
115,
38,
-122,
116,
67,
-103,
-95,
-28,
98,
35,
40,
-19,
124,
-84,
14,
22,
-115,
-90,
-45,
8,
75,
25,
-106,
-67,
88,
22,
11,
-6,
107,
-124,
15,
108,
-118,
-1,
-16,
-77,
-97,
57,
12,
17,
-17,
-108,
-112,
49,
-33,
-16,
92,
-41,
49,
-102,
126,
-80
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
The opinion of the court was delivered by
Malone, J.:
Bryce Dull appeals the consecutive sentences he received in two unrelated cases. In the first case filed, Dull pleaded guilty to burglary and misdemeanor theft. He had recently turned 18 years old when these crimes were committed. In the other case, Dull pleaded guilty to aggravated indecent liberties with a child. Dull was 17 years old at the time of this crime, and the victim was 13 years old. However, the district court authorized Dull to be prosecuted as an adult, and the cases were consolidated for pleas and sentencings. He was sentenced to 24 months’ imprisonment for the burglary, concurrent with 12 months’ incarceration for the theft, and 45 months’ imprisonment for the sex crime. The sentences were ordered to be served consecutive to each other. As required by statute for the aggravated indecent liberties conviction, the district court also sentenced Dull to a lifetime of supervision by the Department of Corrections once he was released from prison.
Dull seeks review of the Court of Appeals’ decision that mandatory lifetime postrelease supervision for juveniles convicted of similar sex offenses does not categorically constitute cruel and/or unusual punishment under the Eighth Amendment to tire United States Constitution. See State v. Dull, No. 106,437, 2013 WL 193036, at *12 (Kan. App. 2013) (unpublished opinion). Although he argues mandatory lifetime postrelease supervision is likewise unconstitutional under § 9 of the Kansas Constitution Bill of Rights, he does not challenge the panel’s holding that this issue was not properly raised for the first time on appeal. He additionally takes issue with the imposition of consecutive sentences in his two cases.
For reasons set forth below, we reverse and hold that mandatory lifetime postrelease supervision for juveniles who have committed and are later convicted of aggravated indecent liberties categorically constitutes cruel and unusual punishment. We also reverse the panel’s holding that it did not have jurisdiction to consider the imposition of consecutive sentences in light of our decision in State v. Looney, 299 Kan. 903, 327 P.3d 425 (2014); however, we affirm the district court’s imposition of consecutive sentences.
Factual and Procedural Background
In 09CR3878, Dull was charged with burglaiy, a severity level 7 person felony, and misdemeanor theft. These offenses occurred on December 16, 2009, after Dull had turned 18 years old. In 10CR2224, Dull was charged with rape, a severity level 1 person felony, for having sexual intercourse with a 13-year-old girl on or between July 1, 2009, and July 31, 2009. Dull was 17 years old at the time of the alleged sex offense, but the district court authorized prosecution as an adult. The cases were consolidated, and, pursuant to a plea agreement, Dull pleaded guilty to the burglaiy and misdemeanor theft charges in 09CR3878 and to the amended charge of aggravated indecent liberties, a severity level 3 person felony, in 10CR2224. Dull moved for durational and dispositional departures.
In 09CR3878, the district court denied the departure motion and sentenced Dull to a standard term of 24 months’ imprisonment followed by 12 months’ postrelease supervision for the burglary offense and a concurrent term of 12 months in county jail for the misdemeanor theft offense. In 10CR2224, the district court granted a downward durational departure from the presumptive standard sentence of 94 months’ imprisonment to 45 months’ imprisonment followed by lifetime postrelease supervision. The court reasoned that Dull’s mental impairment caused him to lack substantial judgment when the crime was committed and the lack of participation by the victim in die proceedings resulted in less harm to the victim than typical for such an offense. The sentences in both cases were ordered to run consecutive to one another.
Dull argues for the first time on appeal that mandatory lifetime postrelease supervision categorically constitutes cruel and/or unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of foe Kansas Constitution Bill of Rights when it is imposed on juveniles who have committed and are later convicted of similar sex offenses. Additionally, he challenges foe district court’s imposition of consecutive sentences.
In a divided opinion, foe Court of Appeals considered only foe categorical challenge under the Eighth Amendment. Acknowledging it was a difficult call, foe majority relied primarily on State v. Mossman, 294 Kan. 901, 930, 281 P.3d 153 (2012), and State v. Cameron, 294 Kan. 884, 898, 281 P.3d 143 (2012), which held that mandatory lifetime postrelease supervision for a first-time offender adult convicted of aggravated indecent liberties with a child or aggravated indecent solicitation of a child was constitutional under foe Eighth Amendment. The Mossman and Cameron courts applied foe analysis set forth in Graham v. Florida, 560 U.S. 48, 66, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (life without parole for juveniles convicted of nonhomicide offenses is unconstitutional). The Court of Appeals majority also applied Graham in concluding that mandatory lifetime postrelease supervision for juveniles convicted of aggravated indecent liberties does not categorically constitute cruel and unusual punishment under the Eighth Amendment. Dull, 2013 WL 193036, at *12.
Judge G. Joseph Pierron dissented reasoning that acts committed by juveniles should be viewed differently from acts committed by adults, and that foe real possibility of a lifetime sentence for foe later commission of a minor felony was not proportional. 2013 WL 193036, at *13 (Pierron, J., dissenting).
The Court of Appeals unanimously agreed that it lacked jurisdiction to consider a challenge to foe imposition of consecutive presumptive sentences. Dull, 2013 WL 193036, at *12.
Dull petitioned for review of both issues. This court granted the petition pursuant to K.S.A. 20-3018(b) and K.S.A. 60-2101(b) (review of Court of Appeals’ decisions upon timely petition for review).
Does Mandator* Lifetime Postrelease Supervision for a Sex Offense Committed by a Juvenile Violate the Eighth Amendment?
Jurisdiction
“Statutory interpretation and jurisdictional challenges involve questions of law subject to unlimited appellate review. [Citation omitted.]” State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014).
Before the Court of Appeals, die State argued that Dull’s categorical challenge to his lifetime postrelease supervision was a “thinly-veiled attempt to challenge his individual sentence.” Accordingly, the State argued the appellate court did not have jurisdiction to consider an appeal from a presumptive or downward departure sentence, including an individual challenge to the constitutionality of a sentence. See K.S.A. 21-4721; State v. Huerta, 291 Kan. 831, Syl. ¶ 3, 247 P.3d 1043 (2011) (constitutional infirmity not subject to direct appeal in individual presumptive case); State v. Johnson, 286 Kan. 824, 841-42, 190 P.3d 207 (2008) (if sentence scheme itself is not being challenged as constitutionally infirm, court lacks jurisdiction to consider individual presumptive sentence); State v. Clemons, 273 Kan. 328, 343-44, 45 P.3d 384 (2002) (no jurisdiction to consider whether individual presumptive sentence was cruel and unusual punishment).
The Court of Appeals rejected this argument, reasoning this court had not questioned jurisdiction in Mossman and had granted review and remanded two cases which had been dismissed for lack of jurisdiction. See State v. Vanskiver, No. 101,214, order of dismissal filed September 29, 2009, rev. granted and remanded September 13, 2010; and State v. Collins, No. 100,996, order of dismissal filed August 31, 2009, rev. granted and remanded June 23, 2010. Subsequently, this court determined that “a presumptive prison sentence does not render an appellate court without jurisdiction, under K.S.A. 21-4721(c)(l), to review the imposition of a lifetime postrelease supervision period.” Williams, 298 Kan. at 1080.
Additionally, as discussed in the second issue, Dull’s sentence for aggravated indecent liberties in this case was a departure sen tence and this court has jurisdiction to consider an appeal pursuant to K.S.A. 21-4721(a) (“A departure sentence is subject to appeal by the defendant.”); see also State v. Looney, 299 Kan. at 908 (statute malees no distinction between favorable and unfavorable departure). The State chose not to cross-petition this ruling on jurisdiction, but this court has a duty to consider jurisdictional issues sua sponte. See Williams, 298 Kan. at 1080. Accordingly, we have jurisdiction to consider this issue.
Preservation of Issue
The Court of Appeals also considered whether Dull’s attempt to bring a categorical challenge to his sentence under both the Eighth Amendment and § 9 of the Kansas Constitution Bill of Rights could be raised for the first time on appeal. The panel noted three exceptions to the general rule:
“(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010).” Dull, 2013 WL 193036, at *2.
Applying State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010), the panel separated its analysis under the Eighth Amendment from its analysis under § 9 of the Kansas Constitution Bill of Rights. Additionally, it identified that challenges to proportionality under the Eighth Amendment are divided into two classifications: (1) the length of term-of-years sentences given all the circumstances in a particular case; and (2) categorical restrictions on the death penalty. This second classification also encompasses cases in which the court implements the proportionality standard based on certain categorical restrictions. See State v. Ross, 295 Kan. 424, 428, 284 P.3d 309 (2012).
As a challenge under the first classification is case-specific, which requires factual findings, it is precluded from being raised for the first time on appeal. See Gomez, 290 Kan. at 864-65. Likewise, a challenge under § 9 of the Kansas Constitution Bill of Rights generally cannot be raised for the first time on appeal because of the factual inquiries involved. 290 Kan. at 867-68 (application of State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 [1978], factors in § 9 analysis involves both legal and factual inquiries).
The opposite is true under the second classification, a categorical proportionality challenge under the Eighth Amendment. After identifying the nature of the offense and the characteristics of the offender, the Graham Court applied a two-prong analysis in considering a categorical challenge under die Eighth Amendment. This analysis considers whether a national consensus against the sentencing practice exists and instructs the court to use its own independent judgment taking into account precedent and the Eighth Amendment. 560 U.S. at 61. As the factors assessed in a categorical proportionality challenge are not case specific and generally raise questions of law, a categorical proportionality challenge may be raised for the first time on appeal under certain circumstances. Gomez, 290 Kan. at 866. Accordingly, the panel correctly concluded that it could consider only Dull’s Eighth Amendment categorical proportionality challenge involving only questions of law.
In Ins petition for review, Dull frames his issue as whether the lifetime postrelease supervision violates the Eighth Amendment and § 9 of tire Kansas Bill of Rights, and he repeatedly refers to § 9. However, he does not challenge the panel’s preservation rulings, and he narrows the issue in his petition as focusing on the Graham Court’s “second classification.”
“[Ijssues before the Supreme Court include all issues properly before the Court of Appeals which the petition for review or cross-petition allege were decided erroneously by the Court of Appeals.” Supreme Court Rule 8.03(h)(1) (2014 Kan. Ct. R. Annot. 80). This court will not consider issues not presented or fairly included in the petition. See Supreme Court Rule 8.03(a)(4)(c) (2014 Kan. Ct. R. Annot. 77). If a party fails to challenge a dispositive procedural ruling in the petition for review, it is not properly before this court. See State v. Allen, 293 Kan. 793, 796, 268 P.3d 1198 (2012). Consequently, the only argument properly before this court is a categorical proportionality challenge under the Eighth Amendment.
Standard of Review
A categorical proportionality challenge under the Eighth Amendment implicates questions of law, and this court has unlimited review. See Williams, 298 Kan. at 1086; Mossman, 294 Kan. at 925. A constitutional challenge to the lifetime postrelease supervision portion of an aggravated indecent liberties with a child sentence “is an indirect attack on the constitutionality of the statute as applied.” 294 Kan. at 906.
Deciding whether a statute is constitutional is a question of law subject to unlimited review. This court presumes statutes are constitutional and must resolve all doubts in favor of a statute’s validity. “ ‘A statute must clearly violate the constitution before it may be struck down’ and an appellate court “ ‘not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.” [Citation omitted.]’ ” State v. Gaona, 293 Kan. 930, 958, 270 P.3d 1165 (2012) (quoting State v. Johnson, 286 Kan. 824, 842-43, 190 P.3d 207 [2008]).
Analysis
In the summer of2009, Dull was 17 years old when he had sexual intercourse with a 13-year-old girl. He was charged with rape. The State’s motion to prosecute him as an adult was granted by the district court pursuant to K.S.A. 2007 Supp. 38-2347, and he was tried an adult. Pursuant to plea negotiations, he pled guilty to the lower felony of aggravated indecent liberties with a child, but the conviction still qualified as a sexually violent crime and subjected him to mandatory lifetime postrelease supervision. See K.S.A. 2014 Supp. 22-3717(d)(l)(G) (“Except as provided in subsection [u], persons convicted of a sexually violent crime committed on or after July 1, 2006, and who are released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person’s natural life.”); K.S.A. 2014 Supp. 22-3717(d)(5)(C) (aggravated indecent liberties with a child is a sexually violent crime).
In his petition for review, Dull argues mandatory lifetime post-release supervision for a sex offense that does not involve sexual penetration where the offender is less than 18 years old and the victim is 13 years old categorically constitutes cruel and unusual punishment under the Eighth Amendment. At oral argument, defense counsel reframed the argument as applicable to any juvenile convicted of aggravated indecent liberties with a child. Alternatively, Dull contends die imposition of a mandatory lifetime post-release supervision sentence without the individualized sentencing discussed in Miller v. Alabama, 567 U.S._, 132 S. Ct. 2455, 2458, 183 L. Ed. 2d 407 (2012), is unconstitutional.
Relevant Eighth Amendment Caselaw
The Eighth Amendment to the United States Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” “ The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution’s ban on cruel and unusual punishments is tire “precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” ’ ” Mossman, 294 Kan. at 921 (quoting Graham, 560 U.S. at 59). With this backdrop, a trio of United States Supreme Court cases has established that “children are constitutionally different from adults for sentencing purposes.” Miller, 132 S. Ct. at 2464.
In die first case, Roper v. Simmons, 543 U.S. 551, 578-79, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), the United States Supreme Court created a categorical ban on capital punishment for juvenile offenders who were younger than 18 years old. In reaching this conclusion, the Court first observed that the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where available; and the trending decline in practice demonstrated that society views juveniles, like the mentally retarded, as “ ‘categorically less culpable than the average criminal.’ ” 543 U.S. at 567 (quoting Atkins v. Virginia, 536 U.S. 304, 316, 122 S. Ct. 2242, 153 L. Ed. 2d 335 [2002]).
The Roper Court found that juveniles were not among the worst offenders deserving the death penalty for three reasons: (1) a lack of maturity and an underdeveloped sense of responsibility; (2) juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; and (3) the character and personality traits of a juvenile are not as well formed as that of an adult. 543 U.S. at 569-70. The Court reasoned that once the diminished culpability of juveniles is recognized, it is evident that die penological justifications of retribution and deterrence for the death penalty apply to them with lesser force than to adults. 543 U.S. at 571.
Five years later in Graham, 17-year-old Graham violated his probation for armed burglary with assault or battery by participating in a home invasion and a burglary. The district court revoked his probation and imposed a sentence of life without die possibility of parole. On appeal, the Graham Court extended the categorical approach in Roper to cases involving life without the possibility of parole for juvenile offenders convicted of nonhomicide crimes. 560 U.S. at 68-69.
In analyzing the nature of the offense, the Graham Court referenced its finding that capital punishment is impermissible for non-homicide crimes. Regarding die characteristics of the offender, the Court noted its adoption of categorical rules prohibiting the death penalty for those less than 18 years old. 560 U.S. at 70-71. Turning to the national consensus, the Court observed that only six states banned juvenile life without the possibility of parole; however, the Court noted the sentence was rarely given. Additionally, “the fact that transfer and direct charging laws make life without parole possible for some juvenile nonhomicide offenders does not justify a judgment that many States intended to subject such offenders to life without parole sentences.” 560 U.S. at 67.
In exercising its independent judgment, the Graham Court noted Ropers conclusion that juveniles have lessened culpability and are thus less deserving of the most severe punishments. 560 U.S. at 68. It reasoned “when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.” 560 U.S. at 69.
The Graham Court also found life without the possibility of parole is an especially harsh punishment for a juvenile who will on average serve a longer sentence than an adult offender. 560 U.S. at 70. It continued that none of the goals of penal sanctions— retribution, deterrence, incapacitation, and rehabilitation—provided adequate justification for life without the possibility of parole. 560 U.S. at 71. Accordingly, the Court concluded that life without the possibility of parole for a nonhomicide juvenile offender was unconstitutional reasoning: “A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.” 560 U.S. at 82.
Two years later in Miller, two 14-year-old juvenile offenders were convicted of homicide and received mandatory life without the possibility of parole. The Miller Court extended tire reasoning of Graham and Roper that youth matters when sentencing juveniles to the harshest punishments. 132 S. Ct. at 2465. The Court observed that “none of what [Graham] said about children—about their distinctive (and transitory) mental traits and environmental vulnerabilities—is crime-specific.” 132 S. Ct. at 2465.
Additionally, as Graham treats juvenile life sentences as analogous to capital punishment, the Court likewise extended another line of precedent requiring individualized sentencing. 132 S. Ct. at 2467. “[0]ur individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.” 132 S. Ct. at 2475. Accordingly, the Court concluded the Eighth Amendment forbids mandatory life without parole sentences for juveniles convicted of homicide. 132 S. Ct. at 2469.
We have applied the analysis set forth in these three cases to various sex offenses in concluding that mandatory lifetime post-release supervision under K.S.A. 2014 Supp. 22-3717(d)(l)(G) is not categorically disproportionate for adult sex offenders, nor is it cruel and unusual punishment under the Eighth Amendment to the United States Constitution. See, e.g., Williams, 298 Kan. at 1089-90 (sexual exploitation of child); Mossman, 294 Kan. at 930 (aggravated indecent liberties with a child); Cameron, 294 Kan. at 898 (indecent solicitation of a child).
Additionally, the Court of Appeals has also found that prospective life incarceration upon commission of a new felony while on mandatory lifetime postrelease supervision constituted cruel and unusual punishment as applied to the defendant. See State v. Proctor, 47 Kan. App. 2d 889, 280 P.3d 839 (2012), opinion on remand No. 104,697, 2013 WL 6726286 (Kan. App. 2013) (unpublished opinion), rev. denied 299 Kan. 1273 (April 28, 2014). However, no Kansas cases have addressed whether mandatory lifetime post-release supervision is unconstitutional when imposed on a juvenile offender, as in this case.
Subcategories of Categorical Proportionality Challenges
The second classification of an Eighth Amendment challenge to a term-of-years sentence as disproportionate and therefore cruel and unusual encompasses cases in which the court implements the proportionality standard based on certain categorical restrictions. Ross, 295 Kan. at 428. We have outlined three subcategories of categorical proportionality challenges:
“The United States Supreme Court identifies three subcategories of categorical proportionality challenges. The first considers the nature of the offense, such as a prohibition on capital punishment for nonhomicide crimes against individuals. Graham, 560 U.S. at 60-61 (citing Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 [1982]). The second considers the characteristics of tire offender, such as a categorical rule prohibiting the death penalty for juveniles. Graham, 560 U.S. at 61, (citing Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 [2005]). The third, which was first recognized in Graham, combines the two because it ‘implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes.’ 560 U.S. at 61.” Williams, 298 Kan. at 1086.
In Mossman, the defendant was convicted of aggravated indecent liberties with, a child and argued his categorical challenge should be limited to first-time offenders involving sex with a child who is 14 or 15 without any element of force, coercion, prostitution, or pornography. This court rejected his attempt to limit the range of crimes, ruling it was so case specific as to “obliterate the distinction” between categorical and case-specific challenges. State v. Mossman, 294 Kan. 901, 928, 281 P.3d 153 (2012). Accordingly, we found the nature of the offense was limited to the crime itself— aggravated indecent liberties with a child. 294 Kan. at 928. However, we recognized the category of “first-time sex offenders” as a class of offenders. 294 Kan. at 928-29; see also State v. Cameron, 294 Kan. 884, 896-97, 281 P.3d 143 (2012) (rejecting attempt to define aggravated indecent solicitation of a child category as a sex offense not involving pornography where the offender and victim do not engage in physical or sexual contact).
As noted above, defense counsel conceded at oral argument that Mossman and Cameron control the classification of the nature of the offense to the crime of conviction: aggravated indecent liberties with a child. However, the offenders in Mossman and Cameron were adults, and the United States Supreme Court has made it clear that “children are constitutionally different from adults for purposes of sentencing.” Miller, 132 S. Ct. at 2464. Dull’s status as a juvenile is thus a relevant characteristic to defining a class of offenders. See Graham v. Florida, 560 U.S. 48, 82, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (categorical ban on life without parole for nonhomicide juvenile offenders); Roper, 543 U.S. at 578-79 (categorical ban on capital punishment for juvenile offenders); Miller, 132 S. Ct. at 2464 (ban on mandatory life without parole for homicide juvenile offenders). We agree with the panel’s conclusion that our analysis must be whether mandatory lifetime postrelease supervision constitutes cruel and/or unusual punishment when imposed on the categoiy of juveniles who committed and were later convicted of aggravated indecent liberties with a child.
Graham’s Two-Prong Analysis
The Graham Court applied a two-prong analysis in considering a categorical challenge under the Eighth Amendment:
“The Court first considers ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue. [Citation omitted.] Next, guided by ‘the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose,’ [citation omitted], the Court must determine in tire exercise of its own independent judgment whether the punishment in question violates the Constitution.” Graham, 560 U.S. at 61.
1. Objective Indicia of Society’s Standards
After identifying the applicable categoiy, the Mossman and Cameron courts applied the first step of the Graham analysis, i.e., whether objective indicia of society’s standards, as expressed in legislative enactments and state practices, demonstrate a national consensus against the sentencing practice at issue. Mossman, 294 Kan. at 929; Cameron, 294 Kan. at 897. In Mossman, we relied on the Ninth Circuit Court of Appeals’ analysis in finding lifetime supervised release for child pornography was not cruel and unusual punishment in United States v. Williams, 636 F.3d 1229, 1233-34 (9th Cir.), cert. denied 132 S. Ct. 188 (2011):
“ ‘Here, “objective indicia” suggest that society is comfortable with lifetime sentences of supervised release for sex offenders, as such sentences are common. According to the United States Sentencing Commission, in tire last five years, federal courts have sentenced 1875 defendants convicted of child pornography and child prostitution crimes to lifetime supervised release. See U.S. Sentencing Comm’n, Federal Offenders Sentenced to Supervised Release 58-59 (July 2010), www.ussc.gov/general/20100722_Supervised_Release.pdf. Byway of comparison, in banning the sentence of life without parole for juvenile nonhomicide offenders, the Supreme Court noted that there were dren just 123 people in the county serving such sentences. See Graham, 130 S. Ct. at 2024. Further, the percentage of federal sex offenders receiving life terms of supervised release is increasing, climbing from 9.3 percent in 2005, to 20.5 percent in 2009. [Citations omitted.]’ ” Mossman, 294 Kan. at 929-30.
The Mossman court looked at other states’ legislative enactments concerning variations of lifetime postrelease supervision of sex offenders:
“[A]t least three states—Colorado, Nebraska, and Oklahoma—mandate lifetime postrelease supervision for classes of offenses similar to Mossman’s Kansas offense. See Colo. Rev. Stat. § 18-1.3-1001 (2011) (‘a program under which sex offenders may receive treatment and supervision for die rest of their lives, if necessary, is necessary for the safety, health, and welfare of the state’); Neb. Rev. Stat. §§ 83-174.03, 28-319.01 (2008) (lifetime supervision upon completion of incarceration for ‘registrable’ sex offenses, which includes sexual assault of a child in the first degree); Oída. Stat. Ann. tit. 22, § 991a(A)(13) (2011) (supervision for period correlating with obligation to register as a sex offender); Oída. Stat. Ann. tit 57, § 584(N)(2) (2011) (registration for certain crimes required for lifetime).
“At least one otiier state—-Arizona—permits but does not mandate lifetime postrelease supervision for a similar offense. Ariz. Rev. Stat. Ann. § 13-902(E) (2006) (permitting lifetime probation for sexual offenses). . . .
“[I]t seems fair to say that less than half of states provide for lifetime postrelease supervision of some or all sex offenders and, because several states have a mech anism for termination of the postrelease supervision under certain conditions, only a handful of states impose punishment as absolute as Kansas’ requirement. Nevertheless, Kansas is not alone in imposing mandatoiy lifetime postrelease supervision for crimes such as Mossman’s, and we are not aware of any court that has found lifetime postrelease supervision of a violent sex offender to be cruel and unusual punishment.” 294 Kan. at 917-20.
But Mossman addressed mandatory lifetime postrelease supervision for sex offenses committed by adults, not juveniles. Dull notes that 18 states impose mandatory lifetime postrelease supervision for at least some convicted sex offenders. But see Commonwealth v. Cole, 468 Mass. 294, 310-11, 10 N.E.3d 1081 (2014) (community parole supervision statute authorizing its parole board to impose mandatory sentences is unconstitutional). He points to three states which require the offender to be over 18 years old when imposing lifetime parole or supervision.
“See Ind. Code §§ 35-50-6-l(e), 35-38-1-7.5 (2012) (lifetime supervision for‘sexually violent predators,’ defined as those committing certain crimes when at least 18 years old); Mont. Code Ann. § 45-5-625(4) (2012) (lifetime supervision for offenders convicted of sexual abuse of children where child was 12 or younger and offender was 18 or older); Or. Rev. Stat. § 144.103(2) (2012) (lifetime supervision for offenders convicted of certain sex crimes who were at least 18 years old at the time of the offense).” State v. Dull, No. 106,437, 2013 WL 193036, at *9 (Kan. App. 2013) (unpublished opinion).
The Court of Appeals identified two states that apply lifetime supervision to sex offenders less than 18 years of age:
“See Colo. Rev. Stat §§ 18-1.3-1001, 18-1.3-1003(5)(a)(IV), 18-1.3-1009, 18-3-405 (2012) (lifetime supervision, with possibility of discharge, for certain sex offenders, including those convicted of sexual assault on a child where the child was under 15 and the offender was at least 4 years older than the child); Nev. Rev. Stat. §§ 176.0931, 201.230 (2011) (lifetime supervision, with possibility of discharge, for offenders of any age convicted of lewdness with child under 14).” Dull, 2013 WL 193036, at “9.
In this case, the Court of Appeals majority found it was unclear whether the fact that only a small number of states impose lifetime postrelease supervision on juveniles convicted of sex offenses reflects a true national consensus against the sentencing practice or whether it reflects the diverse manner in which states define and punish sex offenses against children. Accordingly, it concluded Dull had not shown a national consensus against sentencing juveniles convicted of similar sex offenses to mandatory lifetime post-release supervision. Dull, 2013 WL 193036, at *9.
Dull argues the fact that only three states specifically list an age over 18 years in their postrelease supervision statutes issue is not determinative. He contends the Miller Court expressly rejected a “counting-type analysis” and did not rely upon a lack of a national consensus in its analysis of whether a life without the possibility of parole sentence for a juvenile was cruel and unusual punishment. Indeed, the Miller Court was not dissuaded by the fact that 29 states had mandatory life without the possibility of parole sentences for homicide juvenile offenders, finding its case was “different from the typical one in which we have tallied legislative enactments,” observing that its decision did not categorically bar a penalty for a class of offenders or type of crime; rather, “it mandates only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a particular penalty.” 132 S. Ct. at 2471.
While almost all jurisdictions permit juveniles to be tried as an adult in homicide cases, most jurisdictions do not have a separate penalty provision for juvenile offenders. See 132 S. Ct. at 2473. The Miller Court observed that when sentencing a juvenile to death or life without the possibility of parole, most jurisdictions use two separate statutory provisions: “One allowed the transfer of certain juvenile offenders to adult court, while another (often in a far-removed part of the code) set out the penalties for any and all individuals tried there.” 132 S. Ct. at 2472. The Court reasoned “it was impossible to say whether a legislature had endorsed a given penalty for children (or would do so if presented with the choice).” 132 S. Ct. at 2472.
Observing that half of the jurisdictions imposed life without the possibility of parole on juveniles without regard to age, the majority concluded: “[The States] can count to 29 by including these possibly (or probably) inadvertent legislative outcomes does not preclude our determination that mandatory life without parole for juveniles violates the Eighth Amendment.” 132 S. Ct. at 2473.
Dull argues that likewise in Kansas, the last time age is considered concerning juveniles is when they are to be tried as an adult. See K.S.A. 2014 Supp. 38-2347. Dull’s age was a factor when he was sentenced pursuant to K.S.A. 21-3504(a)(3)(A), a severity level 3 felony, rather than K.S.A. 21-3504(c), an off grid felony for offenders 18 years of age or older. However, Dull is correct that a separate section of the criminal procedure code imposes lifetime postrelease supervision without regard to age. See K.S.A. 2014 Supp. 22-3717(d)(l)(G).
Dull implies that it is difficult to ascertain a true national consensus when the legislatures are not directly addressing the age of the offender. Indeed in Mossman, when addressing national consensus, we were not dissuaded by the fact that only a handful of states had a sentencing provision for mandatory lifetime post-release supervision for adults similar to Kansas. 294 Kan. at 920-¾1.
As there is great diversity in the manner of sentencing juveniles for sex crimes among tire states, it is helpful if we expand the national consensus analysis to “mandatory minimum” sentences for juveniles. The Iowa Supreme Court recently made some interesting observations under this factor:
“[W]e recognize no other court in the nation has held that its constitution or the Federal Constitution prohibits a statutory schema that prescribes a mandatory minimum sentence for a juvenile offender. Further, most states permit or require some or all juvenile offenders to be given mandatory minimum sentences. See Martin Guggenheim, Graham v. Florida and a Juvenile’s Right to Age—Appropriate Sentencing, 47 Harv. C.R.-C.L. L. Rev. 457, 494 & n.267 (2012) [hereinafter Guggenheim] (collecting state statute permitting or requiring a mandatory minimum sentences to be imposed on a juvenile offender tried as an adult). This state of tire law arguably projects a consensus in society in favor of permitting juveniles to be given mandatory minimum statutory sentences. See Alex Dutton, Comment, The Next Frontier of Juvenile Sentencing Reform: Enforcing Millers Individualized Sentencing Requirement Beyond the JLWOP Context, 23 Temp. Pol. & Civ. Rts. L. Rev. 173, 195 (2013) [hereinafter Dutton] (‘At this moment, no such national consensus exists against the imposition of mandatory sentences on juvenile offenders; the practice is common across jurisdictions.’).
“Yet, ‘[c]onsensus is not dispositive.’ Kennedy, 554 U.S. at 421, 128 S. Ct. at 2650, 171 L. Ed. 2d at 539. Moreover, as Miller demonstrates, constitutional protection for the rights of juveniles in sentencing for the most serious crimes is rapidly evolving in the face of widespread sentencing statutes and practices to the contrary. See 567 U.S. at_, 132 S. Ct. at 2470-73, 171 L. Ed. 2d at 539 (rejecting an argument by Alabama and Arkansas that widespread use of man.datory-life-without-parole sentences for juvenile homicide offenders precluded holding the practice to be unconstitutional). Additionally, the evolution of society that gives rise to change over time necessarily occurs in the presence of an existing consensus, as history has repeatedly shown. The lough on crime’ movement in politics may have made mandatory minimum sentences for juveniles common in society, see Dutton, 23 Temp. Pol. & Civ. Rts. L. Rev. at 175 (identifying ‘conservative, tough-on-crime political campaigns’ as one cause of harsh and longer juvenile sentences); see also William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 509 (2001) (describing the bipartisan “bidding war’ to be toughest on crime), but, tire shift has also given rise to the claim that some sentencing laws have gone too far as applied to youthful offenders, cf. Guggenheim, 47 Harv. C.R.-C.L. L. Rev. at 495 (arguing the national-consensus analysis is inadequate to protect juvenile rights).” State v. Lyle, 854 N.W.2d 378, 386-87 (Iowa 2014).
However, we recently found the imposition of a hard 20 mandatory minimum sentence on a juvenile was constitutional under Graham and Miller. See State v. Brown, 300 Kan. 542, 564, 331 P.3d 781 (2014).
In summary, Dull notes that 18 states impose mandatory lifetime postrelease supervision for at least some convicted sex offenders. Like Kansas, the states of Colorado, Nebraska, and Oklahoma mandate lifetime postrelease supervision to be imposed on juveniles convicted of offenses similar to aggravated indecent liberties with a child, and it is discretionary in Arizona. Colorado specifically references the juvenile’s age in the statute providing for mandatory lifetime postrelease supervision. Indiana, Montana, and Oregon do not permit mandatory lifetime postrelease supervision to he imposed on a juvenile. See Dull, 2013 WL193036, at *9. The majority of states, including Kansas, have adopted mandatory minimum sentencing for juveniles. Taking into account caselaw and legislative enactments, Dull has not demonstrated a national consensus against sentencing juveniles to mandatory lifetime postrelease supervision or against mandatory minimum sentences. However, application of adult mandatory sentencing statutes to juveniles skews the analysis—along with the changing landscape of juvenile sentencing in the wake of Roper, Miller, and Graham.
2. Court’s Own Independent Judgment
Under the second step of the Graham analysis, this court exercises its own independent judgment to determine whether the sentencing practice violates the Eighth Amendment:
“ ‘Community consensus, while “entitled to great weight,” is not itself determinative of whether a punishment is cruel and unusual. [Citation omitted.] In accordance with the constitutional design, “the task of interpreting the Eighth Amendment remains our responsibility.” [Citation omitted.] The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. [Citations omitted.] In this inquiry the Court also considers whether tire challenged sentencing practice serves legitimate penological goals. [Citations omitted.]’ ” Mossman, 294 Kan. at 929 (quoting Graham, 560 U.S. at 67).
A. Culpability
In Miller, the United States Supreme Court summed up its observations regarding the diminished culpability of juveniles:
“Roper and Graham establish that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, we explained, ‘they are less deserving of the most severe punishments.’ Graham, [560 U.S. at 68], Those cases relied on three significant gaps between juveniles and adults. First, children have a “ ‘lack of maturity and an underdeveloped sense of responsibility,’ ” leading to recklessness, impulsivity, and heedless risk-taking. Roper, 543 U.S. at 569. Second, children ‘are more vulnerable ... to negative influences and outside pressures,’ including from their family and peers; they have limited ‘contro[l] over their own environment’ and lack the ability to extricate themselves from horrific, crime-producing settings. Ibid. And third, a child’s character is not as ‘well formed’ as an adult’s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of irretrievablfe] deprav[ity].’ [543 U.S. at 570].
“Our decisions rested not only on common sense—on what ‘any parent knows’—but on science and social science as well. [543 U.S. at 569], In Roper, we cited studies showing that “ ‘[o]nly a relatively small proportion of adolescents’ ” who engage in illegal activity “ ‘develop entrenched patterns of problem behavior.’ ” [543 U.S. at 570] (quoting Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 [2003]). And in Graham, we noted that ‘developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds’—for example, in ‘parts of the brain involved in behavior control.’ [560 U.S. at 68], We reasoned that tiróse findings— of transient rashness, proclivity for risk, and inability to assess consequences—both lessened a child’s ‘moral culpability’ and enhanced the prospect that, as the years go by and neurological development occurs, his “ ‘deficiencies will be reformed.’ ” [560 U.S. at 68-69] (quoting Roper, 543 U.S. at 570).” Miller v. Alabama, 567 U.S_, 132 S. Ct. 2455, 2464-65, 183 L. Ed. 2d 407 (2012).
This court has likewise recognized the diminished culpability of juveniles as set forth in Roper and Graham:
“In looking at the culpability of the offender, the Court noted that in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), it reasoned that because juveniles have a lessened culpability, they are less deserving of the most severe punishments. In Roper, the Court stated diat compared to adults, juveniles have a “ ‘lack of maturity and an underdeveloped sense of responsibility’ they ‘are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure’; and their characters ‘are not as well formed.’ Roper, 543 U.S. at 569-70. Given these salient characteristics, the Roper Court noted that ‘[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’ 543 U.S. at 573. Accordingly, ‘juvenile offenders cannot with reliability be classified among tire worst offenders.’ 543 U.S. at 569. Based on these statements from Roper, the Graham Court concluded that ‘[a] juvenile is not absolved of responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.” [Citation omitted.]’ Graham, 130 S. Ct. at 2026.” State v. Rugues, 297 Kan. 675, 682, 304 P.3d 338 (2013).
Similarly, our Court of Appeals has recognized the legislature’s intention to hold juveniles less accountable for their actions. See State v. Ussery, 34 Kan. App. 2d 250, 257, 116 P.3d 735, rev. denied 280 Kan. 991 (2005) (“The Kansas Legislature has deemed it proper to hold persons under the age of 18 less accountable for their criminal conduct than those who have attained the age of 18. Consequently, the legislature has prescribed lesser penalties for those who commit serious offenses as juveniles.”).
Thus, both United States Supreme Court and Kansas caselaw suggest that 17-year-old Dull had a diminished moral culpability when he committed the crime of aggravated indecent liberties with a child. See Graham, 560 U.S. at 50 (“[Wjhen compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.”).
B. Seventy of the Punishment
“Postrelease supervision’ means the release of a prisoner to the community after having served a period of imprisonment or equivalent time served in a facility where credit for time served is awarded as set forth by the court, subject to conditions imposed by tire Prisoner review board and to the secretary of correction’s supervision.” K.S.A. 2014 Supp. 21-6803(p).
The panel correctly acknowledges that mandatory lifetime post-release supervision is a severe sanction in Kansas, and mandatory lifetime postrelease supervision “is undeniably part of a defendant’s sentence.” State v. Mossman, 294 Kan. 901, 907, 281 P.3d 153 (2012); see K.S.A. 2010 Supp. 21-4704(e)(2) (“In presumptive imprisonment cases, the sentencing court shall pronounce the complete sentence which shall include . . . the period of postrelease supervision.”).
“Mandatory lifetime postrelease supervision includes a general requirement that the person cannot commit a new criminal offense and may include several other specific ‘conditions targeted toward facilitating rehabilitation, restitution, and safe reintegration into society. [Citation omitted.]’ State v. Gaudina, 284 Kan. 354, 359, 160 P.3d 854 (2007). These conditions may include payment of costs, fines, and restitution; completing educational requirements; performing community service; reporting to a supervising officer; and abiding by other special conditions allowed by administrative regulations and orders. K.S.A. 21-4703(p) (defining ‘postrelease supervision’); K.S.A. 22-3717(m) (listing possible conditions).” Mossman, 294 Kan. at 904.
“[W]hile the sentence is lengthy, lifetime postrelease supervision is not as harsh a punishment as imprisonment and is aimed at safely integrating a sex offender into society and protecting the public.” State v. Cameron, 294 Kan. 884, 896, 281 P.3d 143 (2012). However, “Kansas’ provision [mandatory lifetime postrelease supervision] is more severe than most other jurisdictions.” Mossman, 294 Kan. at 920. The Kansas Department of Corrections website lists the following current conditions of postrelease supervision:
“Standard Conditions of Post-release Supervision
“1. Reporting and Travel: Upon release from the institution, the offender must agree to report as directed to the assigned parole officer and follow his/her instructions in reporting on a regular basis and keep the officer continuously informed of the offender’s residence and employment. If it becomes necessaiy that the offender travel outside of the offender’s assigned parole district (as determined by the parole officer) or the State of Kansas, the offender will obtain advance permission from his/her parole officer.
“2. Laws: The offender shall obey all federal and state laws, municipal or county ordinances, including the Kansas Violent Offender Registration Act. If the Kansas Offender Registration Act is applicable, the offender will register with the local Sheriffs Office within 3 days of arrival in the county of residence upon moving to any other county in Kansas. Changes in residence within the same county require written notification to tire Sheriffs Office. If the offender is arrested for any reason, the offender will notify his/her parole officer at the earliest allowable opportunity.
“3. Weapons: An offender will not own, possess, purchase, receive, sell or transport any firearms, ammunition or explosive device, or any device designed to expel or hurl a projectile capable of causing injury to persons or property, any instrument or tool used with the intent to cause harm, or any weapon prohibited by law.
“4. Personal conduct: An offender will not engage in assaultive activities, violence, or threats of violence of any land, threatening or intimidating behaviors, or lewd and lascivious behaviors.
“5. Narcotics/Alcohol: An offender will not illegally possess, use or traffic in any controlled substances, narcotics or other drugs as defined by law except as prescribed by a licensed medical practitioner. The offender will not consume any mind-altering substances, and agrees and consents to submit to a blood, breathalyzer or urine test at the direction of tire parole officer. At no time will the offender consume intoxicating liquor, including beer or wine, without written permission from his/her parole officer. At no time will an offender become intoxicated from the consumption of any substance, including, but not limited to, wine, beer, glue or paint.
“6. Association: An offender will not associate with persons engaged in illegal activity and will obtain written permission from the parole officer and institutional director to visit or correspond with inmates of any correctional institution.
“7. Employment: The offender agrees to secure and maintain reasonable, steady employment within 45 days of release from prison or residential treatment unless excused for medical reasons or an extension of time is given by his/her parole officer. The offender agrees to notify his/her employer of current and prior (non-expunged) adult felony convictions and status as an offender.
“8. Education: The offender agrees to make progress toward or successfully complete the equivalent of a secondary education if the offender has not completed such by the time of the offender’s release and are deemed capable, as determined by their parole officer.
“9. Costs: The offender agrees to pay restitution, court costs, supervision fees and other costs as directed by the offender’s parole officer.
“10. Treatment/Counseling: The offender agrees to comply vrith any relapse prevention plan and tire recommendations of any treatment or counseling, or assessment program which is completed during the offender’s incarceration or while under supervision. The offender agrees to follow any directives given to the offender by the offender’s parole officer regarding evaluations, placement and/or referrals. The offender agrees to submit to polygraph examinations as directed by tlie offender’s parole officer and/or treatment provider.
“11. Victim: The offender agrees to have no contact with the victim(s) in the offender’s case(s) or the victim’s family by any means including, but not limited to, in person, by phone, via computer, in writing or through a third party without the advance permission of the offender’s parole officer.
“12. Search: The offender agrees to be subjected to a search of his/her person, residence, and any other property under his/her control by parole officers, authorized parole staff, and department of corrections enforcement, apprehension and investigation officers with or without a search warrant and with or without cause and by any law enforcement officer based on reasonable suspicion of violation of conditions of post-incarceration supervision, or reasonable suspicion of criminal activity.
“If the offender is released to an out-of-state detainer and is subsequently released from incarceration for any reason, the offender must immediately contact the Kansas Department of Corrections, Parole Interstate Compact Office and provide information as to the offender’s current status including residence and employment. If the offender is released to an in-state detainer and is subsequently released from local incarceration for any reason, the offender must notify the parole officer in the county which holds the detainer as well as the parole office on the offender’s parole plan.
“Special Conditions: The offender must agree to abide by the special conditions) set forth, as well as to comply with instructions which may be given or conditions imposed by the offender’s parole officer from time to time as may be governed by the special requirements of the offender’s situation.” http:// www.doc.ks.gov/prb/conditions
While the postrelease conditions are not confinement per se, they do restrain one’s freedom with significant restrictions and limitations. See Miller v. State, 200 Kan. 700, 703-04, 438 P.2d 87 (1968) (order of probation imposes significant limitations on liberty of actions and constitutes restraint upon freedom sufficient to be entitled to K.S.A. 60-1507 action for relief); see also Mossman, 294 Kan. at 931 (Johnson, J., dissenting) (“With lifetime postrelease supervision, [die defendant] will not experience another day of freedom the rest of his life. The government can control what he does and where he goes for the next 40, 50, perhaps even 60 or 70 years.”). Stated another way, mandatory lifetime postrelease supervision is a sentence that restricts tire juvenile’s liberty for life without any chance, hope, or legal mechanism of having those restrictions lifted or even reduced.
Once he is released from prison and placed on lifetime post-release supervision, Dull must register with and report to the local sheriff as directed; he must report to his parole officer as directed; he must undergo a polygraph examination anytime his parole officer directs; he must pay his supervision costs and other costs as directed by his parole officer; he must submit to any and all searches of his residence, automobile, and personal effects by his parole officer; he must not travel outside the state unless he has permission from his parole officer; he must not drink a glass of beer or other alcoholic beverage unless he has permission from his parole officer; and he must not hunt with a firearm. Additionally, the parole officer reserves the right to add or alter the conditions of the supervision from “time to time.” See http://www.doc.ks.gov/ prb/conditions; see also K.A.R. 44-9-501 (2014 Supp.) (new conditions may be established or modified following violation of post-release supervision).
We note that revocation of lifetime postrelease supervision may result in further incarceration up to a lifetime sentence without the possibility of parole. See K.S.A. 2009 Supp. 75-5217(c) (“If the violation results from a conviction for a new felony, upon revocation, the inmate shall serve the entire remaining balance of the period of postrelease supervision even if the new conviction did not result in the imposition of a new term of imprisonment.” [Emphasis added.]); K.S.A. 2014 Supp. 75-5217(c) (“the inmate shall serve a period of confinement, to be determined by the prisoner review board, which shall not exceed the remaining balance of the period of postrelease supervision” [emphasis added]). However, we do not base today s decision on this possible consequence. Compare State v. Proctor, No. 104,697, 2013 WL 6726286 (Kan. App. 2013) (unpublished opinion).
C. Service of Legitimate Penological Goals
“In exercising ‘independent judgment/ the Supreme Court has instructed lower courts to ‘consider whether the challenged sentencing practice serves legitimate penological goals/ ” United States v. Williams, 636 F.3d 1229, 1234 (9th Cir.), cert. denied 132 S. Ct. 188 (2011) (quoting Graham v. Florida, 560 U.S. 48, 67, 130 S. Ct. 2011, 176 L. Ed. 2d 825 [2010]). We have observed the following penological goals of mandatory lifetime postrelease supervision for adult offenders:
" ‘Rehabilitation and incapacitation are central purposes of the criminal justice system, and they are particularly critical here given the propensity of sex offenders to strike again. Supervised release can further the end of rehabilitating sex offenders. For instance, in this case, the express conditions of supervised release will require Williams to receive sex offender treatment and to avoid situations where he may be tempted to offend again. Relatedly, supervised release helps incapacitate sex offenders by keeping them under the watchful eye of probation officers who may be able to detect problems before they result in irreparable harm to innocent children.’ ” State v. Williams, 298 Kan. 1075, 1089, 319 P.3d 528 (2014) (quoting 636 F.3d at 1234).
Moreover, “[a] life term of supervised release is particularly appropriate for sex offenders given their high rate of recidivism. See H.R. Conf. Rep. No. 107-527, at 2, 2002 WL 1376222, at 1 (noting that ‘sex offenders are four times more likely than other violent criminals to recommit their crimes/ and that their ‘recidivism rate [does] not appreciably decline as offenders age.’).” Williams, 636 F.3d at 1233.
The Mossman court extended this analysis to Kansas offenders:
“The NinA Circuit’s conclusion applies equally to Aose sentenced in Kansas to postrelease supervision for the crime of aggravated indecent liberties wiA a child. Further, alAough Williams was a repeat sex offender rather than a first-time sex offender like Mossman, some of the penological objectives for lifetime postrelease supervision—particularly deterrence, incapacitation, and rehabilitation—are the same whether the offender has committed one or many offenses. Accordingly, we conclude the analysis is persuasive as to both the classification of the crime and its application to the class of first-time sex offenders, especially when we factor in oAer states’ acceptance of lifetime postrelease supervision when an offender has committed a similar crime.” 294 Kan. at 930.
As these cases do not address the penological goals of mandatory lifetime postrelease supervision for juvenile offenders, we look to the penological goals of life without the possibility of parole articulated in Graham for guidance. The Graham Court reasoned that retribution does not justify imposing the second most severe penalty on the less culpable juvenile nonhomicide offender. Likewise deterrence is not a justification because juveniles are less likely to take a possible punishment into consideration when making decisions based on their immaturity, irresponsibility, impetuousness, and ill-considered decision making. Regarding incapacitation, the determination that a youth will forever be a danger to society is difficult to malee, and a life without parole denies the juvenile offender a chance to demonstrate growth and maturity. Finally, the goal of rehabilitation is not met because an irrevocable judgment about the juvenile’s value and place in society is inappropriate in fight of a juvenile nonhomicide offender’s capacity for change and limited moral culpability. Graham v. Florida, 560 U.S. 48, 73-74, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).
The Miller Court likewise discussed penological justifications related to youth sentenced to fife without the possibility of parole:
“[Previous cases] emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes. Because “ ‘[t]he heart of the retribution rationale’ ” relates to an offender’s blameworthiness, “ ‘the case for retribution is not quite as strong with a minor as with an adult.’ ” [Citations omitted.] Nor can deterrence do the work in this context, because “ ‘the same characteristics that render juveniles less culpable than adults’ ”—their immaturity, recklessness, and impetuosity—malee them less likely to consider potential punishment. [Citations omitted.] Similarly, incapacitation could not support the life-without-parole sentence in Graham: Deciding that a juvenile offender forever will be a danger to society’ would require ‘makfing] a judgment that [he] is incorrigible’— but “ ‘incorrigibility is inconsistent with youth.’ ” [Citations omitted.] And for the same reason, rehabilitation could not justify that sentence. Life without parole ‘forswears altogether the rehabilitative ideal.’ [Citation omitted.] It reflects ‘an irrevocable judgment about [an offender’s] value and place in society,’ at odds with a child’s capacity for change. [Citation omitted.]
“Most fundamentally, Graham insists that youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole. In the circumstances there, juvenile status precluded a life-without-parole sentence, even though an adult could receive it for a similar crime. And in other contexts as well, the characteristics of youth, and the way they weaken rationales for punishment, can render a life-without-parole sentence disproportionate. [Citation omitted.] ‘An offender’s age,’ we made clear in Graham, ‘is relevant to the Eighth Amendment,’ and so ‘criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.’ [Citation omitted.]” Miller v. Alabama, 567 U.S._, 132 S. Ct. 2455, 2465-66, 183 L. Ed. 2d 407 (2012).
Although these cases were not addressing an aggravated indecent liberties with a child conviction, “none of what [Graham] said about children—about their distinctive (and transitory) mental traits and environmental vulnerabilities—is crime specific.” (Emphasis added.) 132 S. Ct. at 2465.
In this case, the majority noted the Mossman court’s discussion of the high and frightening risk of recidivism posed by sex offenders, and it held these concerns were “just as significant when a 17-year-old offender commits a sexually violent crime as when an 18-year-old commits the same crime.” Dull, 2013 WL 193036, at *11 (citing 294 Kan. at 910). However, “[sjeveral recent longitudinal studies, examining data on more than 33,000 juvenile sex offenders, reinforce the clinical consensus that juvenile sex offenders present low recidivism risks.” Halbrook, Juvenile Pariahs, 65 Hastings L.J. 1, 13 (December 2013). Similarly, the Iowa Supreme Court recently observed:
“Research has confirmed that juvenile sex offenders generally ‘are less likely to re-offend than adults, especially when they receive appropriate treatment/ Fed. Advisory Comm, on Juvenile Justice, Annual Recommendations Report to the President and Congress of the United States 7-8 (2007), available at www.facjj.org' annual/reports/ ccFACJJ%20Report%20508.pdf. Most juveniles who become involved in illegal sexual behavior ‘are not sexual predators and do not meet the accepted criteria for pedophilia.’ Id.; see also Britney M. Bowater, Adam Walsh Child Protection and Safety Act of 2006: Is There a Retter Way to Tailor the Sentences of Juvenile Sex Offenders?, 57 Cath. U. L. Rev. 817,840 (2008) (‘[Mjany studies indicate that juvenile sex offenders have a lower recidivism rate than adult sex offenders.’).” In re A.J.M., 847 N.W.2d 601, 605 (Iowa 2014).
By way of comparison in assessing penological goals, Professor Amy Halbrook opines that the same analysis that the Supreme Court applied to juvenile death penalty and life-without-parole cases should be applied when assessing whether a juvenile should be required to register as a sex offender for life without the possibility for meaningful review:
“Applying mandatory lifetime registration to juveniles does not serve any peno-logical goal. Juvenile status undermines the justifications behind each goal because of a youth’s developmental limitations. Because of a youth’s diminished culpability, any argument for retribution is less compelling for a youth than it would be for an adult. Lack of maturity undermines the goal of deterrence; juveniles act recklessly and are less likely than adults to consider potential punishments before committing crimes. In addition, by imposing restrictions and community notification, sex offender schemes undermine rehabilitation and create barriers for youth to participate fully in society. The punishment is excessively punitive because of the emotional and social toll; the shaming; the isolation it creates by restricting housing, employment, and family life; and the fact that the requirement remains in place despite the fact that juveniles are amenable to treatment and may, at some point, no longer pose any risk to the community.” Halbrook, Juvenile Pariahs, 65 Hastings L.J. at 51.
The penological purposes for applying mandatory lifetime post-release supervision to a juvenile sex offender are thus not as applicable as they were to the adult offenders in Mossman, Williams, and Cameron. First, “[retribution, which relates to a defendant’s blameworthiness, is less compelling in light of a juvenile’s lesser culpability,” Dull, 2013 WL 193036, at *11, and no showing was made that mandatory lifetime postrelease supervision “is not grossly disproportionate in light of the justification offered.” Graham, 560 U.S. at 72. Second, die deterrent effect of mandatoiy lifetime postrelease supervision only works if the offender refrains from negative actions based on potential consequences; however, juveniles lack the ability to take the requisite step back, analyze their actions, recognize the consequences, and choose a different course of action. 560 U.S. at 72.
Finally, while we have held the goals of rehabilitation and incapacitation are served by the imposition of mandatory lifetime postrelease supervision on adult offenders given their propensity to strike again, juveniles have a lower risk of recidivism. Placing lifetime restraints on a juvenile offender’s liberties requires a determination that the juvenile will forever be a danger to society and “forswears altogether the rehabilitative ideal.” 560 U.S. at 74.
Application of Graham Two-Prong Analysis
Under Graham, Dull has not demonstrated a national consensus for or against mandatory lifetime postrelease supervision for juveniles. Juveniles, especially diose who commit a nonhomicide offense, are clearly viewed with a diminished moral culpability compared to adults. See Graham, 560 U.S. at 68. Mandatoiy lifetime postrelease supervision for a juvenile is a severe lifetime sentence, even when the potential for further imprisonment is not considered, because the juvenile’s liberty interests are severely restricted for life by the terms of the mandatory lifetime postrelease supervision. While we have found mandatory lifetime postrelease supervision constitutional for adults, the same factors that result in a diminished culpability for juveniles, i.e., recklessness, immaturity, irresponsibility, impetuousness, and ill-considered decision making, along with their lower risks of recidivism, all diminish the pe-nological goals of lifetime supervision for juvenile sex offenders.
Accordingly, we reverse the Court of Appeals and conclude that mandatory lifetime postrelease supervision is categorically unconstitutional under Graham when imposed on a juvenile who committed and was later convicted of aggravated indecent liberties with a child. Our decision on this issue eliminates the need to consider Dull’s alternative argument concerning individualized sentencing.
The mandatory lifetime postrelease supervision portion of Dull’s sentence is therefore vacated. K.S.A. 21-4720(b)(7) provides that in consecutive sentencing cases, “[i]f the sentence for the consecutive sentences is a prison term, the postrelease supervision term is a term of postrelease supervision as established for the primary crime.” (Emphasis added.) Referring back to K.S.A. 21-4720(b)(2), “[t]he primary crime is the crime with the highest crime severity ranking,” which in this case remains aggravated indecent liberties with a child, a severity level 3 felony. In light of our holding, the district court cannot impose any term of postrelease supervision in this case on remand for resentencing. See State v. Kessler, 276 Kan. 202, 217, 73 P.3d 761 (2003) (where district court’s authority to impose sentence is controlled by statutory procedure found unconstitutional, district court has no authority to impose such sentence).
Did the District Court Abuse Its Discretion by Imposing Consecutive Sentences?
Jurisdiction
“Whether appellate jurisdiction exists is a question of law over which this court exercises unlimited review.” State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 (2014).
Dull argues the district court abused its discretion by ordering the sentences in bis two cases to run consecutively rather than concurrently. The State argued, and the Court of Appeals agreed, that it lacked jurisdiction to entertain a criminal defendant’s direct appeal of a presumptive sentence. See K.S.A. 21-4721(c)(l); State v. Flores, 268 Kan. 657, 659-60, 999 P.2d 919 (2000) (imposition of consecutive sentences does not alter presumptive character of sentences imposed). On petition for review, Dull argues only the merits of the issue and simply suggests the Court of Appeals “wrongly decided this issue.” However, this court has a duty to consider jurisdictional issues sua sponte. Williams, 298 Kan. at 1080.
Dull’s sentence in 09CR3878 was presumptive, i.e., 24 months’ imprisonment for the burglary offense concurrent to 12 months in county jail for the misdemeanor theft offense. However, his sentence in 10CR2224 for aggravated indecent liberties with a child was not presumptive. The district court granted a downward departure and imposed 45 months’ imprisonment (low range was 89 months’ imprisonment) and ordered it to run consecutive to 09CR3878, for a controlling term of 69 months’ imprisonment.
K.S.A. 21-4721 governed Dull’s appeal filed on June 21, 2011. The statute provided in relevant part:
“(a) A departure sentence is subject to appeal by die defendant or the state. The appeal shall be to the appellate courts in accordance with rules adopted by the supreme court.
“(c) On appeal from a judgment or conviction entered for a felony committed on or after July 1, 1993, the appellate court shall not review:
(1) Any sentence diat is witíiin the presumptive sentence for the crime.”
“Generally, consecutive sentences imposed under the Kansas Sentencing Guidelines are presumptive sentences which are not subject to review by this court.” State v. Frecks, 294 Kan. 738, 739, 280 P.3d 217 (2012). However, in State v. Ross, 295 Kan. 1126, Syl. ¶ 12, 289 P.3d 76 (2012), we held:
“A life sentence for an off-grid crime is not a 'presumptive sentence’ as contemplated in K.S.A. 21-4703(q) because imposition of the life sentence was not arrived at by applying the applicable grid block of die sentencing guidelines. Ac cordingly, when a defendant is convicted of both an off-grid crime and an on-grid crime and the district court orders the presumptive sentence for the on-grid crime to run consecutive to the life sentence for the off-grid crime, the resulting controlling sentence is not entirely a presumptive sentence’ as defined in K.S.A. 21-4703(q). Thus, K.S.A. 21-4721(c) does not prevent a defendant from challenging a district court’s decision to impose consecutive sentences in a multiple conviction case involving both off-grid and on-grid crimes. As such, we disapprove of the contrary holdings found in State v. Flores, 268 Kan. 657, 99 P.2d 919 (2000), and State v. Ware, 262 Kan. 180, 938 P.2d 197 (1997).”
Recently in Looney, the defendant was granted a downward du-rational departure but his motion for dispositional departure was denied. The Court of Appeals summarily denied his appeal for lack of jurisdiction citing K.S.A. 21-4721(c) and State v. Huerta, 291 Kan. 831, 247 P.3d 1043 (2011). We reversed on appeal, reasoning in part that the appellate court has jurisdiction over all departure sentences under K.S.A. 21-4721(a) unless jurisdiction is divested by a more specific provision. Additionally, as Looney did not receive a presumptive sentence, subsection (c)(1) did not bar the Court of Appeals’ jurisdiction to hear his appeal. 299 Kan. at 909.
Although neither of these cases address the precise scenario here, i.e., consecutive presumptive and departure sentences, their analysis is instructive. While the imposition of consecutive sentences is not considered a departure, Ross indicates that because part of Dull’s sentence was a departure sentence, the resulting controlling sentence is not entirely a presumptive sentence. See Ross, 295 Kan. 1126, Syl. ¶ 12. Looney provides that an appellate court has jurisdiction to hear Dull’s appeal of his departure sentence under K.S.A. 21-4721(a) unless some other provision is controlling. See Looney, 299 Kan. at 908. Applying the reasoning of Ross, K.S.A. 21-4721(c)(1) does not prevent a defendant from challenging the district court’s decision to impose consecutive sentences in a multiple conviction case involving a presumptive and departure sentence. 295 Kan. 1126, Syl. ¶ 12. Accordingly, the panel’s dismissal for lack of jurisdiction under K.S.A. 21-4721(c)(l) was erroneous. In the interest of judicial economy, we will address the merits of Dull’s argument.
Standard of Review
“A district court simultaneously sentencing multiple convictions generally has discretion to order the sentences to be served consecutively. See K.S.A. 21-4608(a); K.S.A. 21-4720(b).” State v. Morningstar, 299 Kan. 1236, Syl. ¶ 4, 329 P.3d 1093 (2014).
“Judicial discretion is abused if judicial action (1) is arbitraiy, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” Ross, 295 Kan. 1126, Syl. ¶ 14.
Analysis
Dull argues the district court abused its discretion in denying his request and ordering the sentences in both cases to run consecutive to each other. At the plea hearing, the district court went over the plea agreement where the State agreed to recommend the low number in the appropriate sentencing guidelines grid box for each felony count and for all counts to run concurrently. In support of a separate motion to depart, Dull argued that he would benefit more from counseling than a long prison term, that he was very immature at the time of the offense, that he was a slow learner in special education classes at school, and that he believed he was dating the victim.
At sentencing, the district court said it had seriously considered the departure motion and observed the veiy generous nature of the plea agreement. It granted the motion to depart in 10CR2224 from a low range sentence of 89 months to 45 months and ordered it to run consecutive to the presumptive 24 months’ imprisonment in the other case. The court reasoned that Dull’s mental impairment caused him to lack substantial judgment when the crime was committed and tire lack of participation by the victim in the proceedings resulted in less harm to the victim than typical for such an offense.
Dull argues several factors warranted the district court to order concurrent sentences: (1) the State recommended concurrent sentences; (2) he took responsibility for his actions and entered guilty pleas; and (3) the district court was aware that he had minimal criminal history. Dull’s argument is without merit.
Although the district court is not obliged to follow a plea agreement, we note the State recommended the low range sentence of each felony offense be run concurrent with each other. If the district court did not depart in 10CR2224, Dull would be facing a minimum controlling sentence of 89 months’ imprisonment even if the cases were run concurrently. Accordingly, the district court clearly took into account all of the factors suggested by Dull in crafting a controlling sentence of 69 months’ imprisonment, which is substantially less than the plea bargain he accepted. Accordingly, it cannot be said that no reasonable person would have imposed consecutive sentences in this case.
Judgment of the Court of Appeals is reversed. Judgment of the district court imposing consecutive sentences is affirmed. Judgment of the district court imposing mandatory lifetime postrelease supervision is vacated and remanded for resentencing.
Michael J. Malone, Senior Judge, assigned. | [
-48,
-22,
-33,
-99,
25,
99,
58,
-100,
99,
-9,
38,
-45,
43,
-61,
5,
123,
-101,
107,
85,
96,
81,
-9,
103,
-63,
-90,
-5,
-39,
84,
-69,
95,
-92,
-108,
8,
112,
-54,
117,
102,
-118,
120,
86,
-114,
7,
-104,
-21,
82,
2,
52,
110,
90,
14,
49,
-98,
-77,
43,
18,
-54,
73,
40,
-53,
-67,
16,
-111,
-85,
-123,
122,
48,
-93,
20,
-65,
-121,
-16,
38,
-36,
25,
0,
-24,
115,
-122,
-122,
-12,
111,
-101,
-92,
-26,
98,
33,
44,
-57,
-68,
-119,
46,
90,
-83,
-89,
-104,
88,
98,
5,
-74,
-35,
116,
22,
43,
126,
-25,
6,
63,
108,
-123,
-113,
-80,
-109,
-51,
56,
-110,
-72,
-13,
37,
-96,
97,
-50,
-26,
94,
-41,
112,
-45,
-50,
-1
] |
Denied.
Unpubhshed | [
19,
-3,
-28,
-67,
-120,
-128,
19,
30,
15,
-105,
119,
119,
-17,
-10,
-108,
107,
60,
111,
-91,
-38,
-39,
18,
127,
-31,
114,
91,
-78,
117,
-15,
-18,
-7,
56,
-50,
-78,
-102,
-107,
84,
-64,
-83,
-40,
-120,
6,
57,
76,
-79,
-45,
37,
3,
89,
15,
17,
-108,
113,
62,
26,
65,
-120,
100,
-59,
-67,
-64,
-33,
-71,
3,
-9,
92,
-62,
84,
-48,
9,
-62,
126,
-112,
-111,
1,
-8,
114,
102,
-122,
117,
11,
-39,
-91,
-24,
47,
33,
44,
-68,
-84,
-89,
19,
62,
45,
-90,
-45,
33,
74,
43,
-77,
-3,
-88,
-45,
47,
-24,
11,
-60,
45,
108,
34,
-82,
-12,
-93,
93,
60,
12,
-119,
-9,
86,
19,
49,
-49,
-15,
-36,
114,
-71,
-34,
-42,
-80
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Leben, J.:
This case arises out of the sale of real estate in Johnson County—parcels of land originally owned by Glenn and Van-ilda Hammonds through some family trusts. The Hammondses had a house that sat mostly on one lot but overlapped a few feet over the lot line of another parcel, Lot 52. The Hammondses sold Lot 52 to Benjamin and Linda Piccirillo, who built a house on Lot 52. The Piccirillos then sold Lot 52 to Manual and Lois Baraban.
Disputes arose once tire Barabans discovered that the Ham-mondses’ house at the border of Lot 52 actually sat partially on that lot; the Barabans demanded removal of the house, and eventually the Barabans sued the Hammondses and the Piccirillos. Our appeal generally resolves two overriding issues.
First, the district court enforced an alleged setdement agreement between tire Barabans and the Piccirillos, ending the Picci-rillos’ involvement in the suit—an order that came only after the court heard testimony from a mediator about what the parties had agreed to in mediation. But K.S.A. 2012 Supp. 60-452a gives all parties involved in mediation a privilege to prevent anyone from disclosing “any communication” made during mediation, and the Barabans objected to the mediator’s testimony at the hearing. The district court should not have allowed that testimony, and without it there’s no evidence upon which the alleged settlement can be enforced. We therefore reverse the district court’s order enforcing the settlement.
Second, die district court ruled after a contested trial that the Barabans’ deed to Lot 52 should be reformed, or modified, to show that the portion on which the Hammondses’ house sits belongs to the neighboring lot. This was based on an agreement between the Hammondses and the Piccirillos about the lot’s border and upon the Barabans’ ability to have detected that the house overlapped die boundary line. There is sufficient evidence to support die district court’s ruling on both points, and we therefore affirm its judgment as between the Barabans and the Hammondses.
Before going into further detail about the issues in this appeal, we will first set out the factual and procedural background of the case. We will then discuss die issues raised by the parties on appeal.
Factual and Procedural Background
In January 2003, Glenn and Vanilda Hammonds, as trustees of the Hammonds Family Living Trust, bought several lots in Spring Hill. One of the lots was Lot 52, and there was an existing house located on the lot immediately to the north.
Our lawsuit generally concerns questions that have arisen because that house actually extends a few feet onto Lot 52, and the lot was later sold. The primary factual question is whether the sale of Lot 52 was intended to include the portion already occupied by the house.
In June 2003, Glenn Hammonds entered into a contract to sell Lot 52 to Benjamin Piccirillo, a builder. They intended to exclude the portion of land containing the house from the sale and to create a larger easement across the north end of Lot 52 to provide a buffer between the existing house and any new structures that might be placed on Lot 52. To that end, Benjamin Piccirillo and Glenn Ham-monds signed an agreement on July 30, 2003, for an “Easement for Dwelling Placement for 20715 Lone Elm Road,” which is Lot 52. But neither Hammonds nor Piccirillo filed the agreement for an easement with tire local register of deeds.
The next day, the Hammondses completed the sale of Lot 52 to Benjamin and Linda Piccirillo. The warranty deed, which was recorded with the register of deeds, didn’t reflect that the portion of land containing the existing house was excluded from the sale of Lot 52, and the deed didn’t mention an easement. The Ham-mondses retained the neighboring land and rented the existing house for $900 a month.
Benjamin Piccirillo then proceeded to build a house on Lot 52. He obtained a zoning variance to install a septic system, obtained a building permit, and built the house.
In May 2005, the Piccirillos sold the property to Manual and Lois Baraban. The warranty deed indicated that all of Lot 52 (with a legal description including the area on which the Hammondses’ house partially sits) was sold. The deed didn’t mention either the Hammondses’ house or an easement. Manual Baraban testified that, before he bought the property, he searched the public record and didn’t find a recorded easement for the house or a reference to any encroachment onto Lot 52.
But the Barabans eventually discovered that the Hammondses’ house stretched over the Lot 52 property line. In March 2006, the Barabans sent a letter to Glenn Hammonds alleging that the Ham-mondses’ house was on the Barabans’ property and threatening legal action if the house wasn’t removed. In June 2007, the Bara-bans filed suit for quiet title, or establishment of ownership, against the Piccirillos and the Hammondses, asking for a court determination that the Barabans own the entirety of Lot 52—including the portion on which the Hammondses’ house sits. Later, the Barabans filed an amended petition that included claims for ejectment, trespass, fraud, and nuisance related to the sale of the lot and to property alterations the Hammondses had made around their house.
In February 2008, Manual Baraban and the Piccirillos attended mediation, although Manual’s wife, Lois, didn’t attend. The mediation session was facilitated by a retired district judge. No written or signed settlement agreement was adopted at the mediation, but the next day, the mediator emailed terms of an agreement— thought by the mediator to have been orally agreed upon at the mediation—to attorneys for both parties.
The Piccirillos filed a motion to enforce the settlement agreement as described in the mediator’s email. At a hearing on the motion, the mediator testified that the parties had reached an agreement at the mediation, with the terms as set out in his email. Lois Baraban submitted an affidavit stating that she had never authorized the settlement.
In August 2008, the district court granted the Piccirillos’ motion to enforce the settlement. The district court found that the Bara-bans had agreed to dismiss their lawsuit against the Piccirillos for several installment payments totaling $8,000. Based on this settlement, the Piccirillos were dismissed from the lawsuit.
The suit continued between the Barabans and the Hammondses. In 2009, the district court denied the Barabans’ motion for partial summary judgment—a judgment on a matter of law where there are no facts in dispute—finding that there were genuine issues of material fact about whether the Barabans knew or should have known of the house encroachment onto Lot 52 before they bought the property. The case proceeded to trial in January 2011.
Some of the issues in the case were tried by a jury, while the judge decided claims related to who was tire rightful owner of the portion of original Lot 52 where the house overlaps the original property boundary. Generally, legal claims—such as a claim for damages for trespassing—are presented to a jury, while equitable claims—such as who has proper title to real estate—are presented to a judge. (No party claims on appeal that any mistake was made in this case as to what claims were submitted to the jury and what claims were decided by the trial judge, so there is no need for further discussion of the differences here.)
The jury made several findings as to certain claims and factual issues—some in favor of the Hammondses and some in favor of the Barabans. The jury found that an easement had been established for the benefit of the Hammondses’ property and that the placement of their house didn’t constitute a trespass against the Barabans. But the jury didn’t find that there was an agreement between the Hammondses and the Piccirillos to alter the boundary line between the two lots. The jury found in favor of the Ham-mondses on the Barabans’ claims of fraud and fraud by silence. The jury awarded the Barabans $2,500 in damages for trespass based on the temporary presence of a berm of dirt that Glenn Hammonds had placed onto Lot 52. The jury also found that in addition to the trespass damages, the Barabans were entitled to punitive damages (which may be assessed to punish intentional wrongful conduct), and the district court awarded $500 to the Bar-abans in punitive damages.
After trial, the Barabans filed a motion asking either for judgment as a matter of law in favor of the Barabans or for a new trial. In March 2011, the district court denied the Barabans’ motion. In April 2011, the district court issued its decision on the issues tried to die court. The court ordered that the deeds to the two lots should be reformed to reflect that the portion of Lot 52 containing the Hammondses’ house is owned by the Hammondses rather than by the owners of Lot 52, the Barabans. The district court also ruled that the easement was valid, so the owners of Lot 52 cannot build structures within the easement area.
The Barabans have appealed to this court. They claim that the district court erred in enforcing the claimed setdement agreement with the Piccirillos. They also claim that the district court erred in granting ownership of the disputed portion of Lot 52 to the Ham-mondses.
I. The District Court Erred in Enforcing a Purported Settlement Agreement Because Testimony About Oral Statements Made During Mediation Should Not Have Been Admitted.
The first issue on appeal is between the Piccirillos and the Bar-abans. The Piccirillos filed a motion in the district court to enforce an oral settlement that the Piccirillos claimed had been reached between them and the Barabans. The district court granted that motion, thus ending the lawsuit between the Piccirillos and the Barabans with an enforced settlement agreement.
Before ruling, the district court heard testimony from the mediator, a retired judge; from the attorney who had represented the Barabans at the mediation; and from Manual Baraban. The Bara-bans objected to the mediator s testimony, citing the confidentiality of communications made during mediation under K.S.A. 2012 Supp. 60-452a, but the district court overruled that objection and allowed testimony about whether the parties agreed to a settlement and, if so, what the terms of that settlement were.
On appeal, the Barabans raise several objections to enforcement of the settlement, including a claim that Lois Baraban, who didn’t attend the mediation, can’t be bound by anything that was agreed to by the others and a claim that—contrary to the district court’s factual findings—no final agreement was reached at the mediation. But we must start by determining whether the mediator should even have been allowed to testify regarding an alleged oral agreement made during mediation. Because K.S.A. 2012 Supp. 60-452a gives any party to mediation “a privilege ... to prevent a witness from disclosing[] any communication made in the course” of the mediation and the Barabans exercised that privilege, the district court should not have allowed the mediator to testify about oral statements made in mediation that he interpreted to be a settlement agreement. And without that evidence, there was no basis upon which to enforce a settlement, even assuming that one had been orally agreed upon during mediation.
There are competing policy considerations in play here, and the Kansas Legislature has balanced them by statute. On one hand, we want to encourage mediation of disputes, which can be done by offering strict confidentiality about what has been said during a mediation session. On the other hand, we also want to encourage settlement of disputes, which can be achieved by enforcing settlements once they are agreed to. The legislature has provided for strict confidentiality regarding oral communications made during mediation. This is outlined not only in K.S.A. 2012 Supp. 60-452a, a provision in the Kansas Rules of Evidence, but also by a provision in the Kansas Dispute Resolution Act, K.S.A. 2012 Supp. 5-512(a), which provides that “[a]ll verbal or written information transmitted between any party to a dispute and a neutral person conducting a proceeding under the dispute resolution act or the staff of an approved [dispute-resolution] program shall be confidential communications.” That statute adds that “[n]o admission, representation or statement made in the proceeding shall be admissible as evidence . . . .” K.S.A. 2012 Supp. 5-512(a). The Dispute Resolution Act applies to mediations conducted by court referral or conducted by a program registered with and approved by the state’s Director of Dispute Resolution. See Att’y Gen. Op. No. 2010-09. Taken together, K.S.A. 2012 Supp. 60-452a and K.S.A. 2012 Supp. 5-512(a) establish a strong rule that communications made during mediation are confidential and may not be admitted as evidence over a party’s objection. See In re Roth, 269 Kan. 399, 408, 7 P.3d 241 (2000) (noting that right under K.S.A. 60-452a to keep mediation communications confidential is waived if no objection is made).
K.S.A. 2012 Supp. 60-452a(b) and K.S.A. 2012 Supp. 5-512(b) both provide for several exceptions to the confidentiality rule— allowing, for example, the disclosure of information necessary to stop the commission of an ongoing crime or fraud. See K.S.A. 2012 Supp. 60-452a(b)(3); K.S.A. 2012 Supp. 5-512(b)(3). But none of the exceptions apply here.
How strictly to enforce confidentiality regarding statements made in mediation—and what exceptions are to be applied—is a policy choice answered in Kansas and in other jurisdictions by legislation or court rule. Indiana has a similar provision to that of Kansas; the Indiana Rules for Alternative Dispute Resolution, adopted as court rules by the Indiana Supreme Court, provide for complete confidentiality of communications made in mediation: “Mediators shall not be subject to process requiring the disclosure of any matter discussed during the mediation, but rather, such matter shall be considered confidential and privileged in nature.” Ind. R. for Alternative Dispute Resolution 2.11. Under that rule, the Indiana Supreme Court has held that a mediator’s testimony as evidence of an oral mediation settlement agreement is inadmissible. Vernon v. Acton, 732 N.E.2d 805, 808-10 (Ind. 2000).
Some jurisdictions have created express exceptions that allow a mediator to testify during attempts to enforce disputed agreements. See Comment, Riner v. Newbraugh: The Role of Mediator Testimony in the Enforcement of Mediated Agreements, 107 W. Va. L. Rev. 329, 337, 344 nn.99-100 (2004) (citing statutes from Louisiana, Ohio, Wisconsin, Kentucky, Connecticut, Iowa, and Wyoming). But most jurisdictions don’t have such an exception, 107 W. Va. L. Rev. at 340, and Kansas does not, either. So while the Kansas statutes at issue here have several specific exceptions to tire confidentiality rule, they do not contain an exception allowing a mediator to testify about an alleged oral settlement.
We ordinarily presume that when the legislature expressly includes several listed exceptions to a statutory rule, it intends to exclude other exceptions. See United States v. Johnson, 529 U.S. 53, 58, 120 S. Ct. 1114, 146 L. Ed. 2d 39 (2000) (“When Congress provides exceptions in a statute, it does not follow that courts have authority to create others. The proper inference ... is that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth.”); Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 458, 691 P.2d 1303 (1984) (‘Where a statute specifies only certain exceptions to the general application of the statute, then other exceptions are excluded.”). Since the Kansas Legislature included several specific exceptions to confidentiality in our mediation statute—but no exception allowing the mediator to testify about the terms of a claimed settlement agreement—we conclude that there is no exception applicable to the situation at hand. We therefore apply the overall, general rule requiring confidentiality.
Our reading of K.S.A. 2012 Supp. 60-452a is reinforced by the fact that the legislature has not left the problem of getting an enforceable settlement out of mediation without a solution. Instead, the legislature has explicitly provided a way for parties to obtain a settlement that can be presented in court—put the agreement in writing. K.S.A. 5-514 specifically provides that a written mediation agreement signed by the parties in a court-referred case may be presented to the court for approval:
“If the parties involved in the dispute reach an agreement, the agreement may be reduced to writing and signed by the parties. The agreement shall set forth the settlement of the issues and the future responsibilities of each party. If a court referred the case, the agreement as signed and approved by the parties may be presented to the court as a stipulation and, if approved by the court, such agreement shall be enforceable as an order of the court.”
Documenting a settlement agreement reached at mediation, either with a brief recitation in a recorded court session or in a brief writing, is an important and recommended practice when concluding a mediation session. See Denlow, Concluding a Successful Settlement Conference: It Ain’t Over Till It’s Over, 39 Ct. Rev. 14, 16-19 (Fall 2002) (providing a form checklist and term sheet that can be used to document a mediated settlement) (available at http:// goo.gl/aLywn3). A brief writing containing the essential terms of the settlement and signed by the parties would be admissible— and enforceable. See K.S.A. 5-514.
Aside from the mediator’s testimony, there is one additional piece of evidence of a settlement in tire court file—an admission made by the Barabans’ attorney. After the mediation, he filed a motion seeking an order that the Hammondses “cease trespassing” on Lot 52. In that motion, he alleged that “[a]t [the] mediation, an agreement was reached between the Barabans and the Piccirillos,” an agreement that he said was “currently pending.” He later testified that he only meant to confirm that there was an apparent settlement agreement pending before the court that the Barabans still had to agree to. But even if his statement were to be considered a judicial admission that some settlement had been reached, there is no way to determine the terms of the settlement from the evidence presented to the district court without considering the mediator s testimony about what was said during mediation.
In sum, the testimony from the mediator about what was said during the mediation session should not have been permitted. We have carefully reviewed the evidence presented to the district court on the Piccirillos’ motion to enforce the settlement agreement. Once testimony from the mediator about what was said during the mediation session is excluded, tire remaining evidence isn’t sufficient to establish what the terms of any settlement may have been—something that must be established if the settlement is to be enforced. We therefore reverse the district court’s order granting enforcement of that settlement.
II. The District Court Did Not Err When It Ordered Reformation of the Deed Between the Hammondses and the Piccirillos.
The second issue on appeal is between the Hammondses and the Barabans. The district court ruled in favor of the Hammondses on tire quiet-title action, concluding that the area of Lot 52 on which the Hammondses’ house sits now properly belongs to tire Hammondses and that it’s protected by a 15-foot easement that prevents other structures from being constructed on the north 15 feet of Lot 52. The Barabans appeal, contending that the district court should have held that Lot 52 in its entirety belongs to them, that no easement can be enforced against the Barabans, and that the portion of the Hammondses’ house that sits on Lot 52 must be removed.
On appeal, we must accept the district court’s factual findings if they are supported by substantial evidence; we then determine whether the findings supported by substantial evidence are sufficient to support the district court’s ultimate legal conclusions regarding title to the land in dispute. See U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003); Mary A. Baska Revocable Trust v. Hoehn Park Homes Ass’n, Inc., No. 107,827, 2012 WL 6634436, at *3 (Kan. App. 2012) (unpublished opinion).
There are two key aspects to the district court’s ruling.
First, the court concluded that the Piccirillos and the Ham-mondses reached a specific agreement that the property boundary to Lot 52 would be altered to match the cut-out where the Ham-mondses’ house sits on the original outline of Lot 52. Our Supreme Court has long upheld the right of parties to fix a property bound-aiy line by agreement: “Where parties by mutual agreement fix a boundaiy line between their properties, acquiesce in the line so fixed and thereafter occupy their properties according to the line agreed upon, it must be considered as the true boundary line between them and will be binding upon the parties and their grantees.” Mahlandt v. Jabes, 232 Kan. 435, Syl. ¶ 3, 658 P.2d 356 (1983); accord Moore v. Bayless, 215 Kan. 297, Syl. ¶ 1, 524 P.2d 721 (1974); Kyte v. Chessmore, 106 Kan. 394, 398, 188 P. 251 (1920). To uphold the district court’s ruling, then, there must be substantial evidence in the record to support its conclusion that the Piccirillos and Hammondses made this agreement about the property boundaiy.
Second, the district court concluded that the Barabans had constructive notice that the Hammondses’ house overlapped the recorded boundaiy line for Lot 52. Specifically, the district court said that several facts were sufficient to “cause a reasonable person to inquire as to the boundary” given the location of the Hammondses’ house. This is an important point because the rights of innocent third parties can prevent the reformation (or court revision) of a deed to conform to a boundary-line agreement made by other parties. This type of buyer is known as a bona fide purchaser, meaning he or she has made the purchase without notice of a mistake in the title. Thus, if the Barabans had no notice—actual or constructive— of the boundaiy agreement between the Piccirillos and the Ham-mondses and the deed to Lot 52 gave the Barabans title to the cutout section with the house on it (as the deed in fact did), then the Barabans would have proper legal title to all of Lot 52. See Beams v. Werth, 200 Kan. 532, 544, 438 P.2d 957 (1968) (noting that right to have deed reformed “is subject to being cut off by a bona fide purchaser—a subsequent purchaser for value and without notice of the mistake”).
To determine what evidence must be in our record to uphold the district court’s ruling on this second point, we need to also explain the concept of constructive notice. Even if the Barabans had no actual notice that Lot 52 no longer included the cut-out area, constructive notice would be enough to take them out of the category of “bona fide purchaser without notice,” and, thus, they could not prevent reformation of the deed to reflect a boundary agreement between the Hammondses and the Piccirillos.
Under constructive-notice concepts, if the buyer has knowledge of facts that a prudent person would investigate further—and if that investigation would disclose the key facts at issue (here, that tire Hammondses’ house partially sat on Lot 52)—then the buyer isn’t a bona fide purchaser without notice:
“ ‘[I]t is a general rule that knowledge of such facts as ought to put a prudent man on inquiry as to the title charges a subsequent purchaser with notice not only of those facts which are actually known, but also of all tire other facts which a reasonably diligent investigation would have ascertained, provided the inquiiy becomes a duty, and would lead to the knowledge of the requisite fact by the exercise of ordinaiy diligence and understanding.’ ” Federal Savings & Loan Ins. Corp. v. Urschel, 159 Kan. 674, 681, 157 P.2d 805 (1945).
For constructive-notice purposes, having knowledge of circumstances sufficient to arouse the suspicions of a prudent person and to put him or her on inquiiy is the same as having the factual knowing that a diligent inquiry would have disclosed. City of Arkansas City v. Anderson, 15 Kan. App. 2d 174, 181, 804 P.2d 1026, rev. denied 248 Kan. 994 (1991).
So we turn now to determine whether there is sufficient evidence to support the district court’s conclusions on these two points—first, that the Piccirillos and the Hammondses reached a boundary-line agreement, and second, that the Barabans had constructive notice that the house extended onto Lot 52.
Agreement Between the Piccirillos and the Hammondses
In its written decision, the district court said that “the evidence established that the Hammonds conveyed a portion of Lot 52 to Benjamin and Linda Piccirillo (the Piccirillos), carving out tire portion of Lot 52 on which the Hammonds house rested.” The court cited the written easement agreement, which was signed by Glenn Hammonds and Benjamin Piccirillo, as well as “the evidence” generally. In its earlier decision denying the motion for a new trial, the court had also cited “testimony from both Mr. Hammonds and Mr. Piccirillo[] that Mr. Hammonds sold Mr. Piccirillo Lot 52, minus the portion of Lot 52 on which the Hammonds house rests.”
Substantial evidence supports the district court’s conclusion that the Plammondses intended not to sell the cut-out portion on which the house sat and tirat the Piccirillos agreed to buy Lot 52 minus that cut-out. Glenn Hammonds testified that he “was intending to sell Mr. Piccirillo Lot 52 except for the part that the house sat on.” Similarly, in a videotaped deposition presented at trial, Hammonds said that the boundary was changed before the sale of Lot 52 to the Piccirillos.
Although Benjamin Piccirillo arguably gave some inconsistent testimony on this point, he ultimately provided testimony that aligns with Glenn Hammonds’ testimony and supports the district court’s conclusion. Initially, Piccirillo said that he had intended to buy all of Lot 52. But on cross-examination, he clarified that he “bought what was supposed to be—what Lot 52 was supposed to be.” In response to a direct question from the trial judge, Piccirillo said, “What I thought I was buying was tire part drat was altered to make accommodations for that house.” At anodrer point, Pic-cirillo testified that a yellow line on an exhibit presented to the court “was [drawn] to show what the setback was supposed to be at that—tirat area taken out of Lot 52 to accommodate the house . . . .” When asked whether he bought “that portion of land with Lot 52,” Piccirillo replied, “No, I didn’t. I was thinking that I didn’t.”
This evidence was sufficient to support the district court’s factual finding tirat the Hammondses and the Piccirillos reached an agree ment to change the boundary line of Lot 52 so that it didn’t include the cut-out on which the house sat.
The Barabans have raised several other challenges to the legality of the boundary-line agreement between the Hammondses and the Piccirillos. As the district court ruled, however, the Barabans are not a proper party to raise these claims:
• The Barabans argue that the boundary agreement wasn’t valid because neither Glenn Hammonds’ wife nor Benjamin Piccirillo’s wife signed it. We agree with the district court that a third party can’t assert the rights of Vanilda Hammonds and Linda Piccirillo, see Haas v. Nemeth, 139 Kan. 252, 255, 31 P.2d 6 (1934), and neither of the wives has objected to the boundary agreement.
• The Barabans raise other objections to the validity of the boundary agreement, including that it violated the statute of frauds, but they don’t have standing to raise those objections because they weren’t a party to the agreement. Nor does the statute of frauds apply to a contract fully carried out by the parties, which is what the district court found had happened here. See Haas, 139 Kan. at 254.
• The Barabans claim drat the sale to the Piccirillos should be void because it violated city ordinances. In a nutshell, the Barabans claim that city zoning rules didn’t allow a house to be built on Lot 52, with the cut-out and given the overlapping location of the existing house. But the district court properly noted that the sale was for an undeveloped lot, and the undeveloped lot didn’t violate any city ordinances. There is a process for obtaining variances from zoning restrictions, and Piccirillo apparently used that process before building the house on Lot 52. Moreover, the Barabans once again lack standing—-here, the standing to assert the violation of city zoning rules that are enforced by city officials, not the Bar-abans.
• The Barabans also assert that the district court improperly reversed its initial default judgment granted with respect to the Barabans’ nuisance claims; one factual allegation had been that the Hammondses’ house encroached on Lot 52, and the Hammondses, who represented themselves, had failed to file an answer. So the court entered judgment in favor of the Barabans on that issue. The Barabans claim that the district court’s subsequent decision about the boundary line was unfair, but they cite no legal authority questioning the district court’s authority not to grant a default judgment in this circumstance.
We have examined the various technical objections raised by the Barabans in their brief, but we find none of merit.
Before leaving the topic of the boundary-line agreement, we note briefly that the jury answered “no” to a specific question about whether “the Hammonds and [the] Piccirillos agreed to alter the boundary or property line.” We should perhaps explain why that juiy finding does not control our result here. First, the quiet-title action was tried to the court, not the jury, and that hasn’t been challenged in anyway on appeal. Second, the Barabans have made no argument on appeal that the district court was bound by the juiy’s finding on this point. The Barabans merely note in their appellate brief that “[t]he jury found there was no ‘boundary agreement.’ ” But that statement was in a section that argued there was no boundary agreement because Linda Piccirillo and Vanilda Ham-monds hadn’t specifically been part of any agreement—a legal argument we’ve already rejected—not in support of any other argument.
We should also note that the district court’s jury instruction on what was required to prove a boundary-line agreement included a requirement that the jury find that “[t]he true boundary line was disputed or uncertain.” That requirement, apparently based on a jury instruction suggested by the Barabans, is an odd one even to contemplate in die context of this case. Our case arose in the context of a boundary agreement made in connection with the sale of property, and the parties could agree upon any boundary they chose to apply to what was bought and sold between them. This was not a case that arose between parties who already owned neighboring lots. In such a case, one might apply a requirement that there first have been some dispute before overriding the written record of the transaction. See Stith v. Williams, 227 Kan. 32, 34-35, 605 P.2d 86 (1980) (discussing the boundary-line agreement rule in the context of a disputed strip of land between neighboring property owners). But the general rule in Kansas has no requirement of a preexisting dispute, instead requiring only two elements: where parties (1) agree to fix a boundary line and (2) then acquiesce to follow the agreed-upon line, it is considered the true boundary line. E.g., Moore, 215 Kan. 297, Syl. ¶ 1; Beams, 200 Kan. 532, Syl. ¶ 7; In re Moore, 173 Kan. 820, Syl. ¶¶ 2-3, 252 P.2d 875 (1953); Kyte, 106 Kan. at 398. This rule—with no reference to the need for a preexisting dispute about the boundary—has been specifically applied where parties to the sale of property had agreed upon the boundary line. Blanford v. Biven, 123 Kan. 269, 254 P. 1030 (1927); McBeth v. White, 122 Kan. 637, 253 P. 212 (1927).
Constructive Notice That the House Extended onto Lot 52
The closest question in this appeal is whether the Barabans had constructive notice that the Hammondses’ house extended onto Lot 52. We will therefore set out the district court’s ruling in detail before we proceed to discuss the evidence that supports its conclusions.
In ordering reformation of the deed, the district court found that the Barabans weren’t bona fide purchasers because the location of the Hammondses’ house “provided the Barabans with notice of some irregularity in the boundary to Lot 52.” In its earlier order denying the Barabans’ motion for judgment as a matter of law, the district court gave several reasons for its conclusion that the Barabans weren’t bona fide purchasers. Those reasons included the location of the house and the Barabans’ ability to discover its positioning with respect to the boundary line through a survey or a careful physical inspection:
“In the instant case, the Hammonds’ rental house rested, in part, on Lot 52. Before closing, Mr. Baraban’s title insurance company conducted a survey (dated April 28, 2005) which noted Lot 52 as only 90 feet wide, cutting off the entire portion of the lot (not just a cut-out) encroached upon by the Hammonds’ house. (Def. Exh. 200) These facts indicate that a physical inspection of the property or survey would have imparted notice of a boundary issue. Similarly, the Barabans obtained an appraisal which notes the presence of the Hammonds’ house and estimates the impact of tire house on Lot 52’s value. Clearly, such appraisal information could have been obtained prior to tire purchase of [the] real estate. Based on these facts, tire Court finds that tire Barabans had such notice as would cause a reasonable person to inquire as to tire boundary and/or any other unrecorded properly rights. The Hammonds’ house stood on the lot the Barabans were purchasing just as clearly as a freight train on the tracks at an unlit crossing.”
The district court’s allusion to a freight train on the tracks overstates the case a bit; its reference to the survey and appraisal information may too. Manual Baraban testified that he didn’t receive the title insurance company’s survey until 2007 when this lawsuit was filed. And Baraban obtained the appraisal in 2008. To be clear, erty in 2005, though the district court is asserting that a prudent person would have inquired about the boundary sooner and could have obtained the information at the time of sale.
There was also some other evidence that supports the Barabans’ position that they wouldn’t have realized that the house encroached onto Lot 52. Benjamin Piccirillo testified that he told Manual Bar-aban that the Hammondses’ house didn’t encroach on the property; although that was based on Piccirillo’s understanding that the Hammondses still owned the portion of the land containing the house, Piccirillo didn’t communicate that to Baraban. Baraban testified that he didn’t discuss the house or how it was positioned with Piccirillo before he bought the property. Baraban testified that he checked that the property he intended to buy matched tire deed, and he said that he relied on the deed to be accurate. He also testified that he assumed the title company would notify him if there was a problem and that he didn’t receive its survey until he asked for it 2 years later. Baraban said that no survey stakes or survey markers were visible when he looked at the house before buying it.
But there is also evidence that supports the district court’s conclusion. Baraban volunteered that his employee, Wes Campbell, who rented the Baraban house, suspected there was a boundary issue based upon that employee’s own observations. Baraban testified, “Wes did some measuring, and he’s pretty well-versed in finding property and stuff. He measured over, and he began to realize that [the Hammondses] were encroaching on our property.” That discovery led Baraban to notify Glenn Hammonds of the problem by letter in 2006. Campbell testified that the boundary issue came to light after Hammonds removed some bushes from Campbell’s backyard. Campbell testified, “[I]t was our understanding that was on our property, not his. . . . [H]e said they were on his property and that’s why he took them out.”
We should also note that had Baraban obtained a survey, it would have shown the problem. Baraban commissioned another survey in 2008, which showed that the Hammondses’ house extended into Lot 52.
As we have already suggested, whether the positioning of the house put the Barabans on notice that there may have been a mistake in the deed is a close call. On one hand, Baraban testified that he checked the public record to verify that the deed matched the property he believed he was buying. And the boundary line wasn’t marked or visible. While a survey and an appraisal at the time of sale would have raised red flags, it isn’t clear whether paying for such services should be considered required components of a reasonably diligent investigation. See, e.g., Bennett v. Evans, 161 Neb. 807, Syl. ¶ 2, 74 N.W.2d 728 (1956) (holding that an encroaching garage wasn’t open, visible, and apparent if an actual survey was required to discover the encroachment); Tibby v. Fletcher, 13 A.D.3d 877, 879, 788 N.Y.S.2d 430 (2004) (finding that buyers weren’t bona fide purchasers in part because they didn’t commission a survey or appraisal before buying the property). On the other hand, the renter’s own suspicions led to the discovery of tire boundary issue through a simple measurement. Notably, this discovery was made before Baraban obtained the title company’s survey or the appraisal cited by the district court. In other words, a reasonably diligent investigation actually did lead to the knowledge of a boundary issue in this case.
The district court is the fact-finder for determining title to the land. There is sufficient evidence to support its conclusion that the position of the Hammondses’ house was close enough in proximity to the property line to at least trigger a reasonably diligent inves tigation. As Campbell’s rough measurements showed—and a survey confirmed—a reasonably diligent investigation would have revealed the problem. So there is sufficient evidence to support the district court’s conclusion that the Barabans had constructive notice of a potential boundary issue. As a result, tire Barabans weren’t bona fide purchasers, so they can’t prevent reformation of the deed. We therefore affirm the district court’s judgment reforming the deed.
The district court’s judgment enforcing the settlement agreement between the Piccirillos and the Barabans is reversed, and the claims between those parties are remanded to the district court for further proceedings.
The district court’s judgment between the Hammondses and the Barabans is affirmed. | [
-15,
-4,
-52,
-84,
26,
96,
27,
-78,
106,
-91,
117,
87,
111,
-54,
8,
41,
-16,
45,
81,
106,
-47,
-94,
95,
-125,
118,
-13,
-63,
-43,
-67,
75,
124,
87,
72,
32,
-54,
125,
102,
64,
-83,
84,
-58,
6,
-117,
76,
-47,
-125,
52,
-17,
22,
14,
85,
-81,
-13,
44,
57,
-25,
72,
41,
75,
47,
25,
-8,
-66,
5,
27,
3,
-95,
-11,
-102,
3,
122,
10,
-110,
53,
1,
-24,
83,
54,
-106,
116,
67,
-101,
40,
-90,
102,
0,
109,
-17,
-11,
-104,
14,
122,
13,
38,
-110,
88,
115,
40,
-66,
-99,
116,
96,
100,
-2,
-26,
69,
31,
104,
-106,
-49,
-108,
-77,
-99,
112,
-116,
1,
-17,
5,
53,
97,
-51,
-26,
87,
103,
17,
27,
15,
-72
] |
Knudson, J.:
On December 22, 2010, an undercover investigator of the Salina Police Department bought six bags of herbal potpourri from Eric Wayne Srack containing a synthetic cannabi-noid known as JWH-081. As a result, Srack was charged and convicted of a felony for distribution of a controlled substance analog. The State’s theory of the case was that JWH-081 is an analog of JWH-018, a schedule I hallucinogenic drug. On appeal, Srack raises the following issues: (1) Whether the statutory definition of a controlled substance analog is unconstitutionally vague, (2) whether the State presented sufficient evidence to support the conviction, and (3) whether the district court erred in excluding certain evidence at trial.
We conclude the statute is not void for vagueness, the evidence was sufficient to support Srack’s conviction, and there was no ev-identiary error. Accordingly, the district court’s judgment is affirmed.
Criminal Statutes
Srack was charged with distribution of a controlled substances analog. K.S.A. 2010 Supp. 21-36a05(a)(4) states in material part: “(a) It shall be unlawful for any person to . . . distribute . . . any of the following controlled substances or controlled substance analogs thereof: (4) any hallucinogenic drug designated in subsection (d) of K.S.A. 65-4105.”
JWH-018 is a prohibited hallucinogenic substance under K.S.A. 2010 Supp. 65-4105(d). Thus, the controlling legal issue is whether JWH-081 is an analog thereof. K.S.A. 2010 Supp. 21-36a01(b), the controlled substance analog statute, states in material part:
“(b)(1) ‘Controlled substance analog’ means a substance that is intended for human consumption, and:
(A) The chemical structure of which is substantially similar to tire chemical structure of a controlled substance listed in or added to the schedules designated in K.S.A. 65-4105 or 65-4507, and amendments thereto;
(B) which has a . . . hallucinogenic effect on the central nervous system substantially similar to the . . . hallucinogenic effect on tire central nervous system of a controlled substance included in the schedules designated in K.S.A. 65-4105 or 65-4107, and amendments thereto; or
(C) with respect to a particular individual, which the individual represents or intends to have a . . . hallucinogenic effect on the central nervous system substantially similar to the . . . hallucinogenic effect on the central nervous system of a controlled substance included in the schedules designated in K.S.A. 65-4105 or 65-4107, and amendments thereto.” (Emphasis added.)
In this litigation, die parties interpret the requirements of the above statute to be read in the conjunctive. Although there has been some debate under the comparable federal controlled substance analog statute as to an appropriate interpretation, we agree with the courts that have read the requirements in the conjunctive. See United States v. Fisher, 289 F.3d 1329, 1337-38 (11th Cir. 2002). Consequently, there is agreement between the parties, and we concur, that to convict Srack of the crime, under the charging document and the jury instructions, the State was required to prove beyond a reasonable doubt that (1) the chemical structure of JWH-081 is substantially similar to the chemical structure of JWH-018 and (2) JWH-081 has a hallucinogenic effect on the central nervous system substantially similar to the hallucinogenic effect of JWH-018.
Before continuing with discussion and analysis, we pause to observe the State does not contend subsection (C) of K.S.A. 2010 Supp. 21-36a01(b)(l) was applicable to the prosecution of Srack. We would simply note in passing that it would appear subsections (B) and (C) should be read in the disjunctive. Widi that clarification, we will proceed with discussion of the issues raised on appeal.
Trial Proceedings
At trial, Jessica Kaiser, a forensic chemist for the Kansas Bureau of Investigation (KBI), testified that she tested the potpourri sold by Srack to the undercover agent. The samples she tested contained JWH-081. Kaiser compared the chemical structure of JWH-081 to the chemical structure of JWH-018. She told the jury one of the compounds contained a methoxy group, which is composed of carbon and oxygen, that the other did not, but otherwise the structures were identical. Based on her opinion and training, Kaiser testified the two compounds were structurally similar, calling the two “structural analogs.”
Sedgwick County Regional Forensic Science Center Director Timothy Rohrig testified that Professor John Huffman synthesized JWH compounds at Clemson University in the late 1990’s. Fluff-man looked at the effect these compounds had on the cannabinoid receptor, where tetrahydrocannabinol (THC), the active ingredient of marijuana, acts. A couple hundred JWH compounds were synthesized to see if they could take the beneficial aspects of THC, such as pain relief, and eliminate the negative effects so that it could be marketed for medicinal purposes. Rohrig testified JWH-018 and JWH-081 were structural analogs, identical except for a methoxy group in JWH-081.
In regard to the effects of JWH-018, Rohrig testified the compound binds with the CB-1 receptor, which is a cannabinoid receptor in the brain, to produce effects such as increase in heart rate, hallucinations, dry mouth, and others. Rohrig admitted that limited studies of JWH-018 existed, and many of those were anecdotal. Rohrig then asserted JWH-081 had essentially the same effects as JWPI-018 and JWH-081 might even be more potent. JWH-081 also bound with the CB-1 receptor to produce similar effects and a “marijuana like high." JWH-081 had a 10 times stronger binding affinity to the CB-1 receptor as compared to JWH-018; in general with JWH compounds, the stronger the binding affinity, the stronger the effect of the compound. However, Rohrig was not aware of any studies of the effects of JWH-081 done on humans due to the dangers of the drugs. Rohrig agreed with the prosecution’s assessment that JWH-081 and JWH-018 had “similar effects” and were “chemically structurally similar to each other.”
After the State rested its case and the district court denied Srack’s motion for acquittal, the defense called Jahan Marcu, a graduate Ph.D. student at Temple University School of Medicine whose research thesis studied the structure and function of the CB-1 receptor, to counter Rohrig’s testimony. Marcu stated his work dealt almost exclusively with synthetic cannabinoids, including JWH-018.
Marcu distinguished between structural analogs and functional analogs. A structural analog refers to two or more compounds whose structures look similar. A functional analog refers to two or more compounds whose structures do not appear similar but which behave “exactly the same.” Marcu did not know of any studies directly comparing JWH-018 and JWH-081. However, Marcu noted that binding affinity was only a first step in determining a compound’s effect. Just as many keys may actually fit in a lock but only the right key will turn it, Marcu stated that many compounds could bind to a receptor but only some of them would activate the receptor. Thus, while JWH-081 might have a stronger binding affinity than JWH-018, there was no data to show that JWH-081 activated the receptor, making it “potent.”
Marcu agreed that the only difference between JWH-018 and JWH-081 was the addition of a methoxy group. However, he noted this small difference could greatly affect the functionality of the compound. As an example, Marcu pointed out that the only difference between ethanol, which is a common ingredient in alcoholic beverages, and methanol, which can cause blindness and death if consumed, is a methoxy group. Marcu claimed the difference between a narcotic and a medicine can be a mere structural change that does not affect the chemical composition at all. Therefore, Marcu rejected the idea that JWH-081 and JWH-018 are functional analogs; the only data to compare them was the binding affinity. However, on cross-examination, Marcu did concede that the two compounds were structural analogs. Further, his reason for rejecting the idea that the two compounds were functional analogs was due to lack of data on JWH-081.
Following Marcu’s testimony, Srack’s attorney requested that die district court allow into evidence a letter sent by die Saline County Attorney to the State Board of Pharmacy requesting JWH-081 be named a scheduled controlled substance. In the letter, the county attorney indicated that the charges against Srack could be dropped if JWH-081 was not so named. After a proffer was made, the district court held the evidence was inadmissible.
The jury found Srack guilty of three counts of distribution of JWH-081, an analog of JWH-018. Srack moved for a judgment of acquittal, claiming the evidence was insufficient to sustain a conviction asserting, among other things, that the State failed to prove JWH-081 was an analog of JWH-018. The district court determined die State had presented sufficient evidence of each essential element of the crime and denied the motion. Srack also contended in a posttrial motion that his convictions were multiplicitous because he was charged with three counts of the same offense, even though the counts arose from the same transaction. The district court agreed that even though Pratt received different packets of potpourri, there was only one transaction. Because each count arose from the violation of the same statute, the district court held the three counts were multiplicitous and merged them into one count, dismissing the other two counts. The district court imposed a sentence of 30 months’ imprisonment to be served in the custody of the Secretary of Corrections. Srack has filed a timely appeal.
Void for Vagueness
Srack contends he has been denied due process of law under the Fourteenth Amendment to the United States Constitution and §18 of tlie Kansas Constitution Bill of Rights because the phrase “substantially similar” of the analog statute is unconstitutionally vague on the facts at hand. We review a constitutional challenge to the statute de novo. See State v. Seward, 296 Kan. 979, 981, 297 P.3d 272 (2013).
To guarantee constitutional due process of law, a criminal statute must “ ‘conveyf ] a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice/ ” State v. Richardson, 289 Kan. 118, 124, 209 P.3d 696 (2009) (quoting State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 [1983]).The need for clarity and prevention of arbitrary and discriminatory enforcement in criminal statutes is heightened because criminal violations result in the loss of personal liberty. Thus, the determinative question in deciding whether a statute is unconstitutionally vague is whether a person of ordinary intelligence would understand what conduct is prohibited by the statutory language at issue. Richardson, 289 Kan. at 125.
Srack supports his void for vagueness argument by emphasizing the testimony of his expert witness that not enough studies had been done to determine whether the effects of JWH-081 were substantially similar to those of JWH-018. Without sufficient data on the subject among experts, Srack contends that ordinary persons could not be expected to know whether a compound will be considered substantially similar to a scheduled controlled substance. As a result, a person of common intelligence could not know whether his or her actions were criminal, making the statute unconstitutional. Srack claims the district court therefore erred in rejecting his motion to dismiss and entering a judgment of conviction.
The State argues the fact JWH-081 and JWH-018 are substantially similar chemical structures can be “objectively determined.” As shown in the diagrams presented to the jury, the only difference between the two compounds is a single methoxy group. Both experts also testified that the methoxy group was the only structural difference between the two compounds, even though the experts disagreed on the effect that methoxy group could have. The State claims there is no danger of arbitrary application of this standard because the chemical structures can be directly compared.
As to whether the substances have substantially similar effects as a scheduled hallucinogen, the State observes that the experts at trial testified that JWH-081 and JWH-018 had a binding affinity with the CB-1 receptor. An expert witness for the State testified JWH-081 caused the same “highs” consistent with marijuana use. The State acknowledged Srack5s expert, disagreed that JWH-081 had been proven to cause any of tírese effects. Even though the hallucinogenic effect of JWH-081 was disputed, the State argues the standard itself is not subject to arbitrary application. While a jury was required to evaluate conflicting expert testimony and render a verdict, the State claims this process is no different than any other statute containing an adjective or adverb. Accordingly, the State claims the substantially similar standard is “sufficiently definite and objective to pass constitutional muster.”
Turning to caselaw, we note the lack of controlling precedence construing the analog statute. The most insightful Kansas case is Cardarella v. City of Overland Park, 228 Kan. 698, 620 P.2d 1122 (1980). In Cardarella, a defendant challenged an Overland Park, Kansas, municipal ordinance which prohibited the distribution of “simulated” drugs and controlled substances which the ordinance defined as “ 'any products which identify themselves by using a common name or slang term associated with a controlled substance or indicate by label or accompanying promotional material that the product simulates tire effect of a controlled substance or drug.’ ” 228 Kan. at 700.
While the Kansas Supreme Court recognized tire ordinance was indefinite, it held the defect did not require the section of the ordinance be stricken. Instead, the court recognized that statutes regulating businesses (case involved “head shops” selling simulated drugs and drug paraphernalia) are given greater leeway in void for vagueness challenges. 228 Kan. at 706. The court held tire ordinance should be construed in context. 228 Kan. at 705 (citing Natural Gas Pipeline Co. v. Commission of Revenue & Taxation, 163 Kan. 458, 466, 183 P.2d 234 [1947]). Based on this construction, the court held “ ‘[a]ny person of common intelligence reading the ordinance as a whole in relation specifically to the provision on “simulated drugs” could reach this conclusion without any mental gymnastics and would receive fair warning as to the conduct regulated.’ ” Cardarella, 228 Kan. at 705. Although Cardarella iterates the legal framework to address a specific void for vagueness issue, it does not provide controlling authority to resolve the constitutional challenge presented by Srack in this appeal. Fortunately, however, the Kansas definition of a controlled substance analog is identical to the definition in 21 U.S.C. § 802(32) (2006), under which there have been void for vagueness challenges. See K.S.A. 2010 Supp. 21-36a01(b)(l).
United States v. Granberry, 916 F.2d 1008, 1010 (5th Cir. 1990), in addressing the appellant’s contention that the federal analogue statute was unconstitutionally vague, held:
“Despite Granberry contention to the contrary, the term ‘controlled substance analogue’ in [tire statute] is clearly and specifically defined, in terms readily comprehensible to the ordinary reader. It provides adequate notice of what conduct is prohibited. The statute makes plain that drugs which have been chemically designed to be similar to controlled substances, but which are not themselves listed on the controlled substance schedules, will nonetheless be considered as schedule I substances if 1) they are substantially similar chemically to drugs that are on those schedules, 2) if they produce similar effects on the central nervous system as drugs that are on those schedules, or 3) are intended or represented to produce effects similar to those produced by drugs that are on those schedules. There is nothing vague about the statute.”
The Eleventh Circuit Court of Appeals has cited Granberry with approval in United States v. Carlson, 87 F.3d 440, 443 (11th Cir. 1996). In Carlson, the defendants argued that the definition of a controlled substance analog was unconstitutionally vague as applied to 3,4-Methylenedioxymethamphetamine. They argued that the phrase “substantially similar” was not adequately defined and they did not receive fair warning that their conduct was illegal. The court rejected the defendants’ argument and held the federal analogue statute was not unconstitutionally vague. See 87 F.3d at 444.
Other federal Circuit Courts of Appeals have reached a similar conclusion. See United States v. Turcotte, 405 F.3d 515 (7th Cir. 2005); United States v. Klecker, 348 F.3d 69 (4th Cir. 2003); United States v. Washam, 312 F.3d 926 (8th Cir. 2002); United States v. Fisher, 289 F.3d 1329 (11th Cir. 2002).
A Louisiana state court has also held that the term “substantially similar” was not unconstitutionally vague, even when discussing complex chemical compounds. State v. Beaudette, 97 So. 3d 600, 603-04 (La. App. 2012). As in the case before us, Beaudette argued that the JWH compound he possessed was not substantially similar to a JWH-018, a scheduled controlled substance. The Louisiana court rejected the argument, holding:-
“The statute at issue gives adequate notice to individuals that certain contemplated activity is proscribed and sets forth adequate standards for determining the guilt or innocence of the accused. Although the chemical makeup of the drugs are complex, if notice is clearly given that certain forms of synthetic marijuana are illegal, then it would be easily understood and adequate notice given that other substantially similar forms of synthetic marijuana are also illegal.” 97 So. 3d at 604.
We find the cited decisions to be persuasive. K.S.A. 2010 Supp. 65-4105(d)(33) specifically identifies JWH-018 as a hallucinogenic substance prohibited by law. It is uncontroverted that Srack sold the potpourri laced with JWH-081 for human consumption. The controlling factual issue at trial was whether JWH-081 was “substantially similar” in structure and effect to JWH-018. We conclude that K.S.A. 2010 Supp. 21-36a01(b)(l) does impart fair warning to a person of ordinary intelligence that the sale of potpourri intended for human consumption with a substantially similar chemical structure and effect on the central nervous system as a schedule I controlled substance is prohibited by law. Accordingly, we hold the statutory definition of a controlled substance analog within K.S.A. 2010 Supp. 21-36a01(b)(l) to be consistent with the values under the Due Process Clause of the Fourteenth Amendment to the United States Constitution and § 18 of the Kansas Constitution Bill of Rights and is not vague. Concluding that the statutory scheme is constitutional, we next consider Srack’s challenge to the sufficiency of evidence presented to support the conviction.
Sufficiency of Evidence
' Srack contends that the State failed to present sufficient proof that JWH-081 is substantially similar in chemical structure to JWH-018 or that JWH-081 has a hallucinogenic effect on the central nervous system substantially similar to that of JWH-018.
When the sufficiency of evidence is challenged in a criminal case, this court reviews such claims by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012).
In determining whether there is sufficient evidence to support a conviction, an appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
We find Srack’s contention unpersuasive. Srack clearly intended the synthetic drug sold to the undercover agent to be smoked. Srack told tire agent at the time of purchase that whoever would be using the potpourri needed to know what they were doing and that the Strawbeny Cheesecake variety included in the purchase was three times stronger than the other potpourri. Moreover, he told a police investigator that JWH-081 was a receptor blocker that made users giggle, feel high, and laugh at things not funny. It is apparent Srack intended to sell a synthetic drug he believed mimicked many of the effects of marijuana on the user.
All three experts were in agreement that the chemical structure of JWH-081 and JWH-018 were almost identical. All three experts concluded JWH-081 and JWH-018 were structural analogs. Timothy Rohrig testified the two drugs were identical except for a single methoxy group in JWH-081.
The KBI chemist, Kaiser, and the toxicologist, Rohrig, both testified that JWH-081 and JWH-018 had a binding affinity with the cannabinoid receptor. Rohrig testified that JWH-081 had essentially the same, if not more potent, effects as JWH-018 on the human body, such as increased heart rate, increased blood pressure, palpitations, paranoia, hallucinations, sweating, dry mouth, and a “marijuana like high.” Srack’s expert, Marcu, disputed the hallucinogenic effect of JWH-081 primarily because of a dearth of scientific studies.
Srack’s challenge to the sufficiency of the evidence is based entirely on the failure of the experts called by the State to use the magic words “substantially similar” when giving their respective opinions. However, as we have discussed, all of the experts at trial agreed to an almost identical chemical structure comparing JWH-018 and JWH-081.
Srack’s argument is stronger regarding the sufficiency of the evidence to support a finding that the compounds were substantially similar in hallucinogenic effect. However, Srack has provided us with no authority to support his argument. Moreover, Sraclc s own admissions, together with the testimony of Timothy Rohrig, presented credible evidence to support the jury’s findings that the substances and their effects were substantially similar based on the instructions given. Whether the hallucinogenic effects were substantially similar was a question for the jury to resolve, and we conclude the evidence was sufficient to support the findings that the jury made.
Exclusion of Evidence
Sraclc claims the district court erred in excluding a letter written by the Saline County Attorney to the State Board of Pharmacy. Sraclc contends the letter was relevant evidence to prove the county attorney was contemplating dismissal of the criminal charges if JWH-081 was not named a scheduled controlled substance by the State Board of Pharmacy.
When reviewing a district court’s decision concerning the admission of evidence, an appellate court first determines whether the evidence is relevant. Under K.S.A. 60-407(f), all relevant evidence is admissible unless statutorily prohibited. State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Evidence is relevant if it has “any tendency in reason to prove any material fact.” K.S.A. 60-401(b).
There are two elements of relevant evidence: a materiality element and a probative element. State v. Houston, 289 Kan 252, 261-62, 213 P.3d 728 (2009). Evidence is probative if it has “ 'any tendency in reason to prove’ ” a fact. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008). The issue of whether evidence is probative is reviewed under an abuse of discretion standard, whereas the materiality of evidence is reviewed de novo. State v. Ultreras, 296 Kan. 828, 857, 295 P.3d 1020 (2013): State v. Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010).
Srack argues the district court’s decision to exclude evidence violated his due process right to present a complete defense. See California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984). This right is violated when a court erroneously excludes relevant evidence that is an integral part of the theory of the defense. State v. Cooperwood, 282 Kan. 572, Syl. ¶ 1, 147 P.3d 125 (2006).
In urging admission of the evidence, Srack’s attorney asked the rhetorical question, “What’s the need to have action taken on 81 to make it a controlled substance if the State can prosecute under the ... theory of an analog?” Srack claims die evidence was relevant to support his defense that there was no objective study or proof that JWH-081 was substantially similar to JWH-018. Because the district court’s ruling hampered his ability to present his defense and to establish reasonable doubt with the jury, Srack claims his right to a fair trial was violated. In passing, Srack claims the error was clearly harmful to the defense and cannot be considered harmless constitutional error.
We conclude the evidence Srack proffered was not material, and we need not reach the issue of legal relevancy. Testimony that the State was attempting to have JWH-081 listed as a scheduled controlled substance after Srack was arrested and charged does not have a legitimate bearing on Srack’s case. See State v. Stafford, 296 Kan. 25, 43, 290 P.3d 562 (2012). If statutes were changed to list JWH-081 as a scheduled controlled substance, the change would not have affected Srack’s charges or his defense. The fact the State Board of Pharmacy did not choose to list JWH-081 as a scheduled controlled substance also does not help Srack; the Board’s decision did not indicate the compound was legal. Because the witness testimony would not have addressed Srack’s charge and could not demonstrate JWH-081 was legal, the evidence was properly excluded.
Moreover, even if we were to assume the proffered evidence was relevant to establish a material fact, the error was harmless. Erroneous exclusion of evidence is subject to review for harmless error under K.S.A. 2010 Supp. 60-261. Factors an appellate court can consider in reviewing the erroneous exclusion of evidence for harmless error include: “the importance of the witness’ testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the case.” Ultreras, 296 Kan. 828, Syl. ¶ 11.
As the State points out, Srack was able to elicit tire testimony he wanted to present to the jury during the cross-examination of James Norton, a lieutenant with the Salina Police Department. Srack was able to show the jury that the State tried, and failed, to have JWH-081 listed as a scheduled controlled substance. No other testimony contradicted Norton’s testimony, and additional testimony on the subject would have been cumulative. Despite Srack’s claim drat die exclusion of the evidence affected his constitutional right to present a defense, the district court’s decision constituted harmless error. Srack was able to present his defense through cross-examination of Norton, and presentation of additional witness testimony regarding the State’s attempt to have JWH-081 classified as a scheduled controlled substance would have been cumulative at best.
Affirmed. | [
-16,
-23,
-3,
46,
26,
-32,
10,
56,
83,
-73,
-12,
83,
-17,
-62,
-123,
51,
-77,
-1,
80,
77,
-59,
-89,
99,
75,
-106,
-5,
74,
-57,
-77,
-53,
-57,
-36,
8,
48,
-126,
37,
-25,
-24,
-22,
94,
-50,
1,
-102,
-6,
51,
3,
38,
-89,
-122,
15,
97,
23,
-83,
44,
25,
11,
73,
8,
91,
12,
-7,
-8,
-70,
85,
9,
38,
-93,
32,
-83,
-115,
-38,
78,
-98,
17,
0,
-8,
115,
-76,
-124,
116,
15,
-71,
4,
98,
98,
-92,
29,
-17,
52,
-100,
30,
15,
-67,
-90,
-40,
25,
72,
-83,
-106,
31,
100,
59,
12,
120,
106,
-44,
23,
-4,
-114,
-50,
-76,
-111,
77,
32,
28,
-31,
-17,
-89,
49,
97,
-57,
-94,
84,
116,
80,
-101,
-50,
-108
] |
Buser, J.:
This appeal involves a contractual dispute between a home builder, Kirk’s Remodeling and Custom Homes, Inc. (Kirk’s), and the homeowners, George and Vicki Hewitt (the Hew-itts). The Hewitts purchased their newly built home from Kirk’s. Upon completion of the construction, Kirk’s gave tire Hewitts an express warranty that promised to provide a house free from defects in materials or workmanship; Kirk’s also promised that if defects arose during the 1-year warranty period, Kirk’s would x-epair or replace tlie defects. Immediately prior to the expiration of the warranty period, in keeping with the contract, the Hewitts gave Kirk’s written notice of construction defects. Kirk’s failed to repair or replace the defects.
More than 5 years after Kirk’s provided the Hewitts with the express warranty, but less than 5 years after the Hewitts gave Kirk’s written notice of the construction defects, the Hewitts sued Kirk’s for breach of contract. Kirk’s filed a motion for summary judgment contending the Hewitts had commenced their lawsuit beyond the 5-year statute of limitations for breach of contract actions. The district court agreed with Kirk’s and granted summary judgment.
As discussed below, we believe the district court erred in finding the Hewitts did not commence their lawsuit within the statute of limitations. We hold, for purposes of K.S.A. 60-511(1), that a cause of action based upon a builder’s express warranty to repair or replace construction defects in a newly built house must be brought within 5 years of the date the builder breached the warranty by refusing or failing to repair or replace the defects. Accordingly, we reverse the district court’s summary judgment in favor of Kirk’s and remand for further proceedings.
Factual and Procedural Background
Donnie Kirk, tire president of Kirk’s, provided an affidavit in support of summary judgment. He alleged that on January 21, 2003, Kirk’s entered into a contract with the Hewitts to build a house in Miami County. The contract, showing signatures and that date, was attached to Kirk’s motion for summary judgment. The contract provided for a “walk-thru inspection . . . prior to final settlement.” It also provided that “[a] construction warranty will be given to the [Hewitts] at signing of contract and will be signed when final walk through is made.”
Kirk’s alleged as an uncontroverted fact that it “contracted with” Brick Doctor and Brant Jones Masonry “as agents of the Hewitts, and/or for intended benefit of tlie Hewitts.” Kirk’s alleged that “Brick Doctor and [Brant] Jones Masonry both worked on the bricks and masonry on the house, and failed to perform their work in a workmanlike manner.” The Hewitts only asserted that Brick Doctor and Brant Jones Masonry were each “Kirk’s subcontractor.”
Regardless, Donnie’s affidavit averred that “[o]n or about December 12, 2003, [the Hewitts] and Kirk’s . . . entered into the warranty for the . . . home.” Kirk’s also attached to its summary judgment motion the construction warranty along with a “Home Enrollment” form signed by the parties, which described it as an “Express Limited Warranty.” The warranty had an “Effective Date” of December 12, 2003.
The warranty provided in relevant part:
“Kirk’s ... is the warrantor under this limited warranty and agrees to tire following terms and conditionfs]. . . .
“I. WHAT IS COVERED
“A. During this one year Warranty Term, which commences ... as indicated on the Home Enrollment form, [Kirk’s] (the builder) warrants that this housing unit will be free from:
1. Defects in materials or workmanship as defined in the Construction Quality Standards ....
2. Defects in the electrical, plumbing and mechanical systems as defined in tire Construction Quality Standards.
“II. WHAT KIRK’S . . . WILL DO
“If a defect occurs on an item during the applicable Warranty Term which is covered by this warranty, Kirk’s . . . will repair, replace or pay [the Hewitts] the reasonable cost of repairing or replacing the defective item. Kirk’s ... total liability under this warranty is limited to tire final sales price of tire home as indicated on the applicable forms. The choice to repair, replace, or pay any combination thereof is solely that of Kirk’s .... Any repair or replacement shall not extend the Warranty Term.
“HI. WHAT [THE HEWITTS] MUST DO
“If [the Hewitts] should have a complaint on any item covered by this warranty during the applicable 'Warranty Term, [the Hewitts] must send to Kirk’s ... a clear and specific written complaint. The written notice must be received by Kirk's .. .no later than seven days after the expiration of the Warranty Term. With the exception of an emergency problem, [the Hewitts] should wait an initial 30 days after the Warranty Term begins to report any defects as defined in the Construction Quality Standards. This is to allow time ... to become familiar with the housing unit.” (Emphasis added.)
The construction quality standards were set forth in a separate section of die warranty. A preface to the section stated: “The fol lowing Construction Quality Standards are expressed in terms of required standards that the Builder s construction must meet. Noncompliance with these construction standards calls for corrective action by Kiries.”
It is uncontroverted that nearly 1 year after the warranty’s effective date of December 12, 2003—December 11, 2004—the Hewitts sent Kirk’s a letter regarding “Outstanding Warranty-Items.” In relevant part, the letter stated: “In accordance with our Warranty of December 12, 2003, we are providing a punch list of outstanding warranty items which require attention.” The Hewitts acknowledged that “[s]ome of the items on the attached punch list have been somewhat corrected.” The Hewitts, therefore, specified the items Kirk’s had corrected and those it had not, and they asked Kirk’s to “[p]lease get with us as soon as possible on these matters.”
Included in the written notice was reference to construction defects in the home’s brickwork:
“1. Unsightly and Problematic Brickwork. The leaks in the basement have been repaired on the North and South side of our home by removing brick; and flashing and sealing around the support beam pockets. This was a matter of neglect by your first Subcontractor, The Brick Doctor. We still need the brick problem taken care of near the front door causing leaks in the basement. When removing a small section of the brick on the North and South side of our home, your second brick Subcontractor, Brant Jones, mentioned that he saw brick ties and felt paper. However as Mr. Jones indicated in the conclusion of his letter of November 15, 2003, removing all of the brick and relaying new bricks correctly would be the only totally reliable solution to this problem job. Since Mr. Jones discovered that no felt or other waterproofing material was used above the garage door when removing a 50 to 60 foot section of brick, we are still not certain that felt or waterproofing was used completely around our home.”
Kirk’s did not repair or replace the defective brickwork or pay the Hewitts to repair or replace it. On June 26, 2008, the Hewitts filed a lawsuit against Kirk’s and other entities. Kirk’s was served on January 31, 2009, and it eventually moved for summary judgment.
In its motion for summary judgment, Kirk’s contended the Hew-itts had commenced their contract claim beyond the 5-year statute of limitations provided in K.S.A. 60-511(1). Arguing that “[a] breach of warranty occurs on the date of sale and delivery,” Kirk’s cited several cases in support including Voth v. Chrysler Motor Corporation, 218 Kan. 644, 545 P.2d 371 (1976), and Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, 457 P.2d 1 (1969).
The Hewitts responded to Kirk’s motion:
“The statute of limitations could only begin running when the Hewitts notified Kirk’s of the defective brickwork. An express warranty like die one provided by Kirk’s . . . , by its very terms, contemplates that the contractor would have an opportunity to repair or replace any defective items. If the contractor does so, dien the express warranty is not breached.”
In support of their argument, the Hewitts cited Feinour v. Ricker Co., 255 Ga. App. 651, 566 S.E.2d 396 (2002).
The district court granted Kirk’s motion for summary judgment. In its decision, the district court cited Freeto Construction Co. and reasoned:
“[The Hewitts’] argument that the agreement promises replacement is correct, as this clause directs what [Kirk’s] will do if the warranty is breached. What [the Hewitts] fail to acknowledge in their argument is Üiat before [Kirk’s] is obligated to repair, replace or pay, he [sic] must have delivered a defective home. Clearly, Kirk’s failed to deliver a home free of defects, or this matter would not be pending. Thus, Kirk’s breached the contract at the outset. Kirk’s breached the contract on the date of delivery, December 12, 2003. The statute of limitations began running on that date, and expired five years hence. As a result, the motion for summary judgment filed by Kirk’s must be granted.”
The Hewitts moved to alter or amend the judgment, clarifying that “Kirk’s did not breach a promise to deliver a home free of defects to the Hewitts; rather, Kirk’s breached a promise to correct a defect that the Hewitts identified during the warranty term.” The Hewitts argued that “[ujnder the [district] [cjourt’s analysis, the bargained-for warranty period in the parties’ contract is meaningless for purposes of when the statute of limitations begins to run. If the warranty is breached upon déliveiy, then a party has a cause of action upon delivery.” But, the Hewitts asserted their cause of action did not accrue until they gave notice to Kirk’s as required under the warranty and Kirk’s failed to repair, replace, or pay the Hewitts for the repair or replacement. In support, the Hewitts cited Antigua Condominium v. Melba Investors, 307 Md. 700, 517 A.2d 75 (1986).
Kirk’s responded that the Hewitts’ motion was “a rehash of issues” already argued. The district court denied the Hewitts’ motion to alter or amend, stating they had presented “no new theory or legal authority.” The Hewitts then dismissed the remaining defendants with prejudice and filed this appeal.
The Statute of Limitations and the Express Warranty to Repair or Replace
The Hewitts appeal the district court’s ruling granting summary judgment for Kirk’s because their cause of action for breach of warranty was filed beyond the statute of limitations for contract actions. The Hewitts contend their cause of action only accrued upon breach of that warranty, i.e., when “Kirk’s refused to correct a defect, failed to correct a defect, or did not take action to correct a defect within a reasonable time.” In short, the Hewitts do not focus their appeal on Kirk’s warranty to deliver a house free from defects but on Kirk’s breach of the warranty to repair, replace, or pay die Hewitts to repair or replace the construction defects (Repair or Replace Warranty).
In response, Kirk’s acknowledges it “promised to deliver a home free from defects and to make repairs if a defect occurs,” but it argues that since “[t]he presence of a defect breaches [its] promise to deliver a home free from defects,” the Hewitts could have maintained an action “at the commencement of the warranty period, on December 12, 2003.”
At the outset, we are guided by the following legal standards regarding summary judgment:
" ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to. any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences, which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citations omitted.]” O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012).
Additionally, where there are no disputed facts and the appellate court is required to interpret and give legal effect to a written contract, appellate review of a summary judgment order is de novo. Wittig v. Westar Energy, Inc., 44 Kan. App. 2d 216, 221, 235 P.3d 535 (2010), rev. denied 292 Kan. 969 (2011).
In the present case, the material facts were undisputed. The parties agreed the December 12, 2003, express warranty was part of the construction contract. There was no dispute regarding the plain language of the express warranty. The parties agreed that, almost 1 year later, on December 11, 2004, the Hewitts sent Kirk’s a letter giving timely notice that the brickwork (and other warranty items) were allegedly defective and had not been repaired or replaced. On June 26, 2008, the Hewitts filed the lawsuit at issue in this appeal, which was served on Kirk’s on January 31, 2009. Finally, Kirk’s candidly conceded it did not repair or replace the brickwork. In short, there are no material facts in dispute and, as a result, we are presented with an issue of law which we review de novo. Of note, we review the warranty language and its legal effect without deference to tire district court’s interpretation of the warranty. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).
K.S.A. 60-511(1) governs the relevant statute of limitations applicable to this issue on appeal. It provides that “[t]he following actions shall be brought within five (5) years: (1) An action upon any agreement, contract or promise in writing.” For purposes of the statute of limitations, “[t]he test to determine when an action accrues is that point when a plaintiff could have first filed and prosecuted an action to a successful conclusion.” Jeanes v. Bank of America, 296 Kan. 870, 874, 295 P.3d 1045 (2013).
The district court found the Hewitts’ cause of action could have commenced on December 12, 2003, the effective date of the express warranty and the date it was delivered to tire Hewitts. Under this interpretation, the Hewitts’ lawsuit was impermissibly commenced beyond the 5-year statute of limitations. On the other hand, the Hewitts contend the earliest date their cause of action could have commenced was when the Repair or Replace Warranty was breached. Under the Hewitts’ interpretation, their cause of action could have begun—at the earliest—on December 11, 2004, which was the date they sent written notice to Kirk’s requesting repair or replacement of the construction defects. If the Hewitts’ understanding is correct, their lawsuit was properly filed within the applicable 5-year statute of limitations and the district court erred in granting summary judgment to Kirk’s.
Given the undisputed facts and the parties’ competing legal contentions, the question presented on appeal is straightforward: When did the Hewitts’ cause of action for breach of the Repair or Replace Warranty accrue?
We begin to answer this question with a brief review of Kansas caselaw cited by the district court and Kirk’s. The district court was persuaded by the precedent in Freeto Construction Co., 203 Kan. 741. In that case, Freeto Construction Co., purchased a truck crane from the manufacturer on May 7, 1959. More than 5 years later, on September 25,1964, the crane failed when two large bolts used in its manufacture gave way. This failure caused “the load to shift and fall, extensively damaging the crane and the load which consisted of a section of an asphalt plant.” 203 Kan. at 742.
On September 24, 1966, the buyer filed a negligence action which was eventually treated as a contract claim. The district court granted summary judgment for the defendants, ruling that the contract claim failed because it was barred by the applicable statute of limitations. The plaintiff appealed. One question on appeal was whether the action was barred by the 5-year statute of limitations period for “action on a written contract.” 203 Kan. at 744-45. The contractual provision in controversy was an express warranty dating from tire sale of die crane in 1959, although the contract terms were not detailed in the opinion.
Our Supreme Court affirmed the district court, holding that the warranty began on the delivery date of the crane because “[i]n this case the breach occurred when the crane was sold and delivered, having been allegedly designed and assembled in a manner inadequate to sustain tire warranted load capacity.” 203 Kan. at 746. The Supreme Court also addressed Freeto Construction Co.’s., alternative contention “that even though its action is for breach of contract, nevertheless the trial court erred in finding the warranty sued upon to be a present warranty rather than prospective and continuing.” 203 Kan. at 747. Our Supreme Court rejected the construction company’s argument, noting that “there are no facts in the record suggesting a warranty as to the condition or capability of the crane on a date more than five years after its sale and delivery.” 203 Kan. at 747. Finally, the Supreme Court added that while the newly enacted Uniform Commercial Code (U.C.C.) did not apply to this transaction, “we believe the provisions of K.S.A. 84-2-725 to be substantially in accordance with the decisions of this court.” 203 Kan. at 748.
Several years later, our Supreme Court in Voth considered the implications of the U.C.C. upon the statute of limitations for contracts for sale of goods as set forth in K.S.A. 84-2-725. That statute provided: “An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.” K.S.A. 84-2-725(1). It further provided:
“A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of die breach must await die time of such performance die cause of action accrues when the breach is or should have been discovered.” K.S.A. 84-2-725(2).
The buyer in Voth purchased a new Chrysler automobile on August 8, 1969. The manufacturer provided a 12-month express warranty “ ‘against defects in material and workmanship in normal use ....’” 218 Kan. at 647. The manufacturer also promised that “[a]ny part of this vehicle found defective under the conditions of this warranty will be repaired or replaced.” 218 Kan. at 647.
On June 27,1974, Voth filed a petition alleging, in relevant part, a breach of Chrysler’s express warranty that the vehicle was “ ‘safe for use.’ ” 218 Kan. at 645. Voth sought damages for inhaling “ ‘large amounts of gasoline fumes’ ” caused by the defective vehicle. 218 Kan. at 645. Voth alleged the defect was “ ‘a plugged gasoline tank vent tube which caused raw gasoline to be spewed upon various parts of the undercarriage . . . , the vapors of which were subsequently gathered by the air conditioning system ... and dispersed throughout the automobile.’ ” 218 Kan. at 646. As a result of this defect, Voth alleged he contracted lead poisoning which caused him great bodily harm, past and future medical expenses, and loss of past and future income.
The petition was filed about 4 years and 10 months after Voth purchased the vehicle, but 5 days short of 4 years after Voth discovered the defect. Voth contended the vehicle’s defect “ was the type of occurrence which was explicitly extended to the future performance of the automobile pursuant to Kansas Statutes Annotated 84-2-725(2).’ ” 218 Kan. at 646. The defendants filed a motion for summaiy judgment claiming, among other defenses, that Voth’s claim was barred by the 4-year statute of limitations for actions involving contracts for sale of goods. The district court agreed and granted summaiy judgment to the defendants.
On appeal, both parties acknowledged that “the issue is controlled by 84-2-725.” 218 Kan. at 647. Our Supreme Court stated the question as follows: “Does the warranty here explicitly extend to future performance and must discovery of the breach await such future performance?” 218 Kan. at 648. The Supreme Court disposed of the first question: “The obligation of the warranty is to repair or replace . . . any part of the vehicle found defective under the conditions of the warranty. It does not warrant performance without malfunction during the term of the warranty.” 218 Kan. at 648. Our Supreme Court ruled against the buyer on the second question as well, reasoning with citation to Freeto Construction Co., that because any defect existed upon delivery, discovery of the breach did not necessarily await future performance. 218 Kan. at 650-51.
We believe the district court’s and Kirk’s reliance on Freeto Construction Co. and Voth is misplaced. Both cases are distinguishable from the present case and, as a result, these cases do not provide helpful precedent in resolving the question on appeal.
First, Voth is a U.C.C. case involving the sale of goods, and its predecessor, Freeto Construction Co., could have been, given its facts. Even Kirk’s candidly concedes on appeal that “tire U.C.C. does not apply to this case.” We agree. As our Supreme Court has noted elsewhere, “none of the [U.C.C. warranty provisions] apply to agreements between homeowners and contractors supplying services in the construction of the homeowners’ residence.” David v. Hett, 293 Kan. 679, 699, 270 P.3d 1102 (2011).
Second, the plaintiffs in Freeto Construction Co. and Voth were claiming a breach of warranty based on a broken promise to provide vehicles at the time of purchase that were not defective in design, material, and workmanship. In contrast, the Hewitts did not predicate their lawsuit on the Kirk’s breach of the express warranty to deliver the house free of construction defects. Rather, the Hewitts claimed a breach of warranty based on a different broken promise—to repair or replace the construction defects or pay the Hewitts’ to repair or replace the defects. This difference is especially noteworthy in Voth where—although the contract for sale clearly provided for repair and replacement of the vehicle defect— Voth did not sue for damages due to Chiysler’s failure to repair or replace the vehicle’s plugged gasoline tank vent tube. On the contrary, Voth sued for damages arising from the breach of Chrysler’s promise to provide him with a vehicle free of defects.
Having considered the caselaw offered in support of Kirk’s legal position and finding it not applicable to the present case, we turn to Kansas real property law. There, we find some guidance in Wilder v. Wilhite, 190 Kan. 564, 376 P.2d 797 (1962). In Wilder, a grantor of land in 1947 provided a warranty deed with the following “warranty provision”: “ ‘The said Grantor covenanting that said premises are free and clear of all encumbrances, and that she will Warrant and Defend the title against the lawful claims and demands of all persons whomsoever.’ ” 190 Kan. at 565. Ten years later, in 1957, tire buyers purchased the land without knowing that the grantor had not held title.
In 1959, the buyers attempted to sell the land. This was the first time the buyers learned of adverse claims on the title. The buyers were forced to litigate these claims and incurred expenses. In 1961, the buyers brought an action against the grantor for damages.
The grantor defended the lawsuit by arguing that “the alleged breach of covenant, if any, against encumbrances incurred when the covenant was made in 1947, and is barred by the five year statute of limitations.” 190 Kan. at 567. Our Supreme Court disagreed. It determined:
“It is readily apparent . . . this action is founded upon the covenant that the grantor will warrant and defend the title against the lawful claims and demands of all persons whomsoever. There is nothing to indicate the action is founded upon the covenant that the premises are free and clear of all encumbrances.” 190 Kan. at 565.
The Supreme Court further instructed that “[t]he statute of limitations begins to run against a cause of action for breach of a warranty to defend the title against the lawful claims and demands of others only from the time of actual or constructive eviction of the covenantee or his assignee.” 190 Kan. at 567.
Wilder is factually more analogous to the present case than Freeto Construction Co. or Voth. Our Supreme Court in Wilder held that the buyers did not have a cause of action for breach of the warranty to defend title until the grantor had breached that particular warranty. We believe the same is true here. The Hewitts could not have prosecuted an action for breach of the Repair or Replace Warranty until Kirk’s had breached that particular warranty. This is in keeping with the general rule that “a party seeking damages for breach of warranty must prove the warranty, the breach thereof, and the loss that resulted from the breach.” (Emphasis added.) Sours v. Russell, 25 Kan. App. 2d 620, Syl. ¶ 1, 967 P.2d 348 (1998), rev. denied 267 Kan. 887 (1999).
In this regard, the plain language of the Repair or Replace Warranty provided by Kirk’s is important. In a dispute over title defects, our Supreme Court similarly focused on the contractual language:
“The language used is explicit and the import and materiality of the dates .. . are made clear. The provisions of the contract, in this regard, must be given the effect stated in the clear language employed. The law presumes that the parties understood their contract and that they had die intention which its terms import. [Citation omitted.] It is not the function of courts to make contracts, but to enforce them as made [citation omitted], nor is it within the province of the court to reform an instrument by rejecting words of clear and definite meaning and substituting others therefor. [Citations omitted.]” Tri-State Hotel Co., Inc. v. Sphinx Investment Co., Inc., 212 Kan. 234, 246, 510 P.2d 1223 (1973).
In the present case, if we take die Repair or Replace Warranty language at face value, Kirk’s could not have breached its promise until it had been given written notice by tire Hewitts and either refused or failed to repair or replace the defects. These were duties Kirk’s had taken upon itself, and we assume it did so for good reasons. If nothing else, we can assume Kirk’s contractual duties under the Repair and Replace Warranty provided some welcome assurance to the Hewitts as they considered whether to enter into a contract to build the house.
Absent protections provided by contract or by law, buyers of real property in Kansas take under the principle of caveat emptor. See Graham v. Lambeth, 22 Kan. App. 2d 805, 807, 921 P.2d 850 (1996); Heinsohn v. Motley, 13 Kan. App. 2d 66, Syl. ¶ 2, 761 P.2d 796 (1988); Miles v. Love, 1 Kan. App. 2d 630, 633, 573 P.2d 622, rev. denied 225 Kan. 845 (1997). “Kansas has recognized an implied warranty of fitness in the sale of new housing, at least when the seller built the house.” 1 Kan. App. 2d at 633 (citing McFeeters v. Renollet, 210 Kan. 158, 165, 500 P.2d 47 [1972]). But “the application of warranty law offers very limited protection for homeowners because the nature of home defects, and the damages that arise from them, often are not discoverable until after a warranty period would expire.” David, 293 Kan. at 699-700. And unless the parties specifically agree otherwise, any agreements made before execution of the deed merge into the deed. See Blair Constr., Inc. v. McBeth, 273 Kan. 679, Syl. ¶ 3, 44 P.3d 1244 (2002).
With this in mind, a seller might offer “[a] warranty that survives closing” as an “invitation to [a buyer] to cease investigating the subject matter of seller’s warranty and to accept the substitution of seller’s contractual liability for some bargained-about aspect of the property.” 12 Thompson on Real Property § 99.06(a), p. 268 (2d Thomas ed. 2008). Because “from seller’s perspective, the costs of sale are now indeterminate, uncertain and uncontrollable,” sellers will “seek to limit their liability” rather than leave it open-ended. 12 Thompson on Real Property § 99.06(a), p. 268. The “[s]eller’s willingness and ability to make representations and warranties concerning the condition of the property will depend upon the relative negotiating strength of the respective parties, the length of time the seller has owned the property . . . , and the identity of the seller . . . 12 Thompson on Real Property § 99.06(a)(1)(B), p. 269.
In the present case, tire parties mutually entered into a contract mitigating the risks borne by each other. The Hewitts’ risk that the house had construction defects was mitigated by Kirk’s promise to repair or replace the defects provided the Hewitts gave written notice. On the other hand, Kirk’s risk of liability was mitigated by the prescribed remedies, time period, other conditions precedent, and by the total dollar limitation.
We are not persuaded by the argument that the Hewitts had actual notice of the defects when Kirk’s presented the express warranty on December 12, 2003. The Hewitts may have had such notice, but nothing in this record proves the Hewitts also knew Kirk’s would refuse to repair or replace those defects as promised. We will not limit the enforceability of the Repair or Replace Warranty, thereby increasing the Hewitts’ risk by starting the statute of limitations clock before Kirk’s could have breached that particular warranty.
Moreover, in their brief, the Hewitts point out the district court’s ruling, if upheld on appeal, would establish precedent that would hamper a party’s ability to negotiate certain warranties. For example, a buyer of real estate might want a longer warranty to repair or replace, but a statute of limitations period running from deliveiy of the warranty would essentially limit all such warranties to 5 years. A buyer who is a party to a residential construction contract might be required to file a potentially needless lawsuit in order to preserve the buyer’s warranty rights when there were unresolved requests for repair or replacement made just prior to the expiration of the statute of limitations period. These considerations bolster our reading of Kansas law that the statute of limitations clock should start upon breach of the Repair or Replace Warranty.
We also find support for our conclusion in caselaw from foreign jurisdictions. In a case cited by the Hewitts, Feinour v. Ricker Co., 255 Ga. App. 651, 566 S.E.2d 396 (2002), a buyer contracted to purchase a house from a builder. The builder “agreed to a one-year limited warranty on the house, obliging [it] tou-epair or replace defects in construction.” 255 Ga. App. at 652. As the 1-year period approached expiration, tire buyer notified the builder of water leakage. The builder attempted repair, but “the workman only temporarily or cosmetically corrected the underlying problem, which apparently arose out of the general improper installation of the synthetic stucco.” 255 Ga. App. at 652.
Six years later, the buyer hired an expert who identified the problem. The buyer brought suit under multiple theories, including breach of express warranty. The statute of limitations for contract claims in Georgia was 6 years, and the district court held that “the contract, implied warranty, and express warranty claims all expired ... six years after the certificate of occupancy issued.” 255 Ga. App. at 652.
The buyer appealed, contending the “breach of express warranty claim . . . did not accrue until . . . [the builder] inadequately repaired the house.” 255 Ga. App. at 653. The Court of Appeals of Georgia agreed: “Since an express warranty to repair is not breached until the warrantor refuses to repair or inadequately repairs the defect, the statute of limitation[s] on that claim does not commence to run until that obligation is breached.” 255 Ga. App. at 655. The facts in Feinour are similar to the present case, and we are persuaded by tire reasoning of tire Georgia court.
A similar analysis was used in Hersh Companies v. Highline Village Assoc., 30 P.3d 221, 222 (Colo. 2001), where a painting contractor provided an express warranty to owners of two apartment complexes to repaint tire exteriors of the buildings. The contractor warranted that its work would be free from defects and that any defects would be repaired or replaced. Problems arose, some of which the contractor repaired, but eventually the contractor refused to make further repairs, claiming the problems were not attributable to its work. The Colorado Supreme Court held the breach of express warranty occurred when the painter first refused to repair, and the statute of limitations began to run only upon that refusal. 30 P.3d at 225-26.
We find another case cited by die Hewitts, Antigua Condominium v. Melba Investors, 307 Md. 700, 517 A.2d 75 (1986), provides further guidance in resolving this appeal. In this case, the buyers of condominiums sued the sellers beyond Maryland’s 3-year statute of limitations for civil actions. The issue on appeal was interpreting the contract, specifically its “key provision”:
“ ‘Seller will make any necessary repairs, adjustments or replacements to the condominium unit and item of personal property specified herein or the common elements of the condominium required as the result of faulty construction, faulty material, faulty manufacture or faulty installation, provided that notice of the defect shall be given Seller within a period of one (I) year accounting from the date of settlement under this Contract.’ ” (Emphasis added.) 307 Md. at 713.
After discussing caselaw from several jurisdictions, the Court of Appeals of Maryland stated:
“We do not interpret the Repair Clause as simply a warranty of the condition of a unit or of the common elements as of the time of closing with a Unit Owner. Had [sellers] simply guaranteed the condition of the property as of the date of closing with a Unit Owner, any breach of that guarantee would necessarily occur at closing and, absent a special statute, the cause of action would accrue for limitations purposes when the breach was discovered. [Citation omitted.] Here, however, [sellers] additionally promised to repair if notified timely. The breach of that covenant to repair does not occur at closing or necessarily when notice is given. Conceptually, the ways in which one who has contracted to repair could breach that contract include repudiating tire obligation before any notice is given, or, after being on notice of the defect, failing to undertake the repairs within a reasonable time, expressly refusing to repair, or, after undertaking to repair, abandoning the work before completion. [Citations omitted.]” 307 Md. at 715-16.
Antigua Condominium is factually similar to the present case, and its reasoning is consonant with Feinour and Hersh Companies. Kirk’s argues this precedent is “not helpful” because, unlike Kansas (see K.S.A. 60-511[l]), Maryland has a discovery rule similar to the Colorado discovery rule in Hersh Companies. But the different discovery provisions have no applicability to the resolution of the issue on appeal. The relevant issue in these cases was not when the defect was discovered but whether the statute of limitations period on a Repair or Replace Warranty begins to run from the breach of the warranty to repair or replace. In Feinour, Hersh Companies, and Antigua Condominium, the respective courts decided, as we do, that the statute of limitations period runs from the breach of the Repair or Replace Warranty.
Other states are in accord. The Court of Appeals of New York concluded the statute of limitations started to run from the date on which the builder refused to make repairs and not the day the buyer knew or should have known of the defects. Bulova Watch v. Celotex Corp., 46 N.Y.2d 606, 415 N.Y.S.2d 817, 389 N.E.2d 130 (1979). In Bulova Watch, a roofing material supplier failed to honor its express promise to “ ‘at its own expense malee any repairs . . . that may be necessaiy to maintain said Roof ... in a water-tight condition.’ ” 46 N.Y.2d at 609. The supplier argued, under the prospective warranty doctrine, that a cause of action—-and hence the running of the statute of limitations—for breach of warranty accrues when the breach is or should have been discovered.
The Court of Appeals disagreed and found the prospective warranty doctrine not dispositive, noting that the supplier “did not merely guarantee the condition or performance of the goods, but agreed to perform a service—to repair the roof.” 46 N.Y.2d at 612. Accordingly, the court found the statute of limitations began running “each time a breach of the obligation to repair the bonded roof occurred.” 46 N.Y.2d at 611.
The Supreme Court of Utah made a similar holding in Lipscomb v. Chilton, 793 P.2d 379 (Utah 1990). There, the seller constructed a roof for the buyer and provided a 1-year warranty. Shortly after the roof was constructed, the buyer noticed leaks, and the seller made repairs pursuant to the warranty. When the roof began to leak again, the seller refused to make the repairs even though the roof was still covered by the warranty. The seller contended the statute of limitations began running when tire buyer first discovered the leaks, shortly after the beginning of the 1-year warranty. Alternatively, the seller contended the statute began running when the buyer’s attorney made a written demand for the cost of the roof repairs.
The Supreme Court of Utah disagreed with the seller’s legal proposition. It held:
“[W]hen defects were .discovered in the roof shortly after the agreement was entered into, the sellers responded as was their duty and made necessary repairs. There was no breach of the warranty at that time. Later, but still during the 1-year period, the buyers again observed defects in the roof and had their attorney make written demand upon the sellers for $1,150 for necessary roof repairs. It was only when the sellers did not respond to the demand either by paying the $1,150 or by making the repairs themselves that a cause of action for breach of warranty arose in the buyers. At that time, the 6-year statute of limitations . . . commenced to run.” 793 P.2d at 381.
See also Beaudry Motor Co. v. New Pueblo Constructors, 626 P.2d 1113, 1114-15 (Ariz. App. 1981) (the statute of limitations began to run when the builder refused to make repairs, not upon expiration of the warranty); Fowler v. A & A Company, 262 A.2d 344, 347-48 (D.C. 1970) (the statute of limitations began to run when the builder refused to make repairs, not when buyer knew or should have known of the existence of the defect).
Having surveyed analogous Kansas real property law and the relevant laws of foreign jurisdictions, we hold, for purposes of K.S.A. 60-511(1), a cause of action based upon a builder s express warranty to repair or replace construction defects in a newly built house must be brought within 5 years of the date the builder breached the warranty by refusing or failing to repair or replace the defects.
On a related matter, Kirk’s briefly mentions that it also alleged in its summary judgment motion that, regardless of the statute of limitations issue, the brick work was performed by agents of the Hewitts and the defects, therefore, were not covered by the terms of the express warranty. As noted earlier, the Hewitts contested this allegation and asserted the brick work was performed by Kirk’s subcontractors who were referenced in tire express warranty. Because the material facts necessary to resolve this issue were clearly controverted and the district court did not grant summary judgment to Kirk’s on this basis, we decline to review it on appeal.
Finally, the district court did not make a finding on when Kirk’s may have breached the specific Repair or Replace Warranty. But neither party suggests it could have been before the Hewitts sent their written notice to Kirk’s on December 11, 2004. Given the undisputed fact that the Hewitts commenced their lawsuit on January 31, 2009, we hold their cause of action was not barred by K.S.A. 60-511(1).
Reversed and remanded.
ft ft ft | [
-48,
120,
-36,
-52,
-120,
-22,
58,
-38,
91,
-92,
53,
-33,
-17,
-49,
29,
107,
-90,
109,
65,
122,
85,
-93,
59,
66,
-42,
-77,
-13,
73,
-71,
-1,
53,
30,
92,
48,
-128,
-107,
-58,
-56,
-35,
28,
-54,
7,
62,
110,
-43,
67,
52,
-70,
4,
13,
21,
4,
-13,
44,
61,
-57,
42,
40,
-17,
41,
-47,
-16,
-103,
5,
124,
5,
-111,
4,
-104,
71,
120,
-105,
-128,
-75,
10,
-24,
83,
-74,
-58,
116,
75,
31,
1,
38,
99,
32,
9,
-19,
-36,
-72,
15,
-34,
15,
-89,
-109,
56,
57,
43,
-74,
-100,
120,
6,
100,
-2,
-26,
84,
25,
108,
15,
-53,
-44,
-109,
15,
-48,
-100,
11,
-1,
1,
49,
112,
79,
-26,
93,
-30,
51,
19,
15,
-70
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
The opinion of the court was delivered by
Biles, J.:
Timothy L. Floyd directly appeals his hard 25 life-imprisonment sentence for Jessica’s Law crimes. After pleading guilty to 26 counts of sexual exploitation of a child, he filed a downward durational departure motion, asking the sentencing court to depart from the presumptive prison term based on seven mitigating factors. The district court denied the motion after finding those factors were not substantial and compelling. Floyd now appeals the denial of his motion, adding to his appeal an unpreserved argument concerning cruel and/or unusual punishment. With the exception of vacating a portion of Floyd’s sentence imposing lifetime post-release supervision, we affirm his hard 25 life sentence.
Factual and Procedural Background
Floyd pled guilty to 26 counts of sexual exploitation of a child in violation of K.S.A. 21-3516(a)(5). His plea was based on his actions of having videos of a sexual nature, which included some focusing on his 5-year-old niece’s genitalia as well as showing other children engaging in oral and anal sex with adult men and animals. In total, Floyd possessed approximately 750 videos and thousands of still images of child pornography.
Before sentencing, Floyd filed a downward durational and/or dispositional departure motion, asking the court to depart from the presumptive prison term because he: (1) had no criminal history; (2) showed remorse for his actions and his family supports rehabilitation and welcomes him home; (3) was the financial backbone of his family, providing for his wife and children; (4) was suffering emotional problems and engaging in drug abuse when his crimes occurred, but wanted to change his course in life and complete treatment; (5) was father to a young son and hoped to be part of his life growing up; (6) was honorably discharged from the United States Air Force; and (7) was released from jail shortly after being arrested but “did not tiy to avoid further arrest and incarcerations.”
The district court considered each mitigating factor at the sentencing hearing and denied the motion. The court found the reasons were not substantial and compelling, individually or collectively, to justify departure. Floyd was sentenced to a hard 25 life-imprisonment sentence, but the court did use the mitigating factors listed in the departure motion to order the sentences to run concurrently rather than consecutively. Floyd filed a timely notice of appeal. This court’s jurisdiction is proper under K.S.A. 22-3601(b)(1) (off-grid crime; life sentence).
Departure Motion
Floyd claims the district court erred in denying his departure motion because he presented substantial and compelling factors supporting a departure from the presumptive life sentence. This court employs an abuse of discretion standard when reviewing a district court’s decision on a departure motion. State v. Baptist, 294 Kan. 728, 735, 280 P.3d 210 (2012). Abuse of discretion occurs when judicial action:
“ ‘(1) is arbitraiy, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.’” Baptist, 294 Kan. at 735 (quoting State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 [2011], cert. denied 132 S. Ct. 1594 (2012).
The district court is required only to state on the record substantial and compelling reasons if it decides to grant a departure. Baptist, 294 Kan. at 735 (citing K.S.A. 21-4643[d]).
Convictions for sexual exploitation of a child trigger a minimum 25-year life sentence imposed by Jessica’s Law, codified by statute under K.S.A. 21-4643(a)(l)(F). For first time offenders, a sentencing court must impose the life sentence “unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” K.S.A. 21-4643(d).
Mitigating circumstances a sentencing court may consider include, but are not limited to: (1) the defendant’s lack of significant criminal history; (2) whether tire crime was committed while the defendant was under the influence of extreme mental or emotional disturbances; (3) whether the victim was an accomplice in the crime committed by another person, and the defendant’s participation was relatively minor; (4) whether the defendant acted under extreme distress or under the substantial domination of another person; (5) the capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform the defendant’s conduct to tire requirements of law was substantially impaired; and (6) the age of the defendant at the time of the crime. K.S.A. 21-4643(d)(1).
Whether a mitigating factor is “ ‘substantial’ ” depends on whether it is “ ‘something that is real, not imagined; something with substance and not ephemeral,’ while ... ‘ “compelling” implies the court is forced, by the facts of a case, to leave tire status quo or go beyond what is ordinary.’ ” State v. Seward, 289 Kan. 715, 722, 217 P.3d 443 (2011) (quoting State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 [2001]). But mitigating circumstances do not per se constitute substantial and compelling reasons for departure. State v. Ortega-Cadelan, 287 Kan. 157, 165, 194 P.3d 1195 (2008).
The district court considered each factor in Floyd’s motion and found they were not substantial and compelling either individually or collectively. It said that while Floyd was not himself involved with sexually abusing the children depicted in the pornography found in his possession, “it is indicated that he knowingly and willingly took part in allowing and promoting a terrible industry that involves such brutality. It is reprehensible. It is unspeakable. Our most innocent and vulnerable are victimized by such an industry. Our children look to adults for protection and nurture, not this.”
But the district court did consider the mitigating factors in Floyd’s departure motion in its decision ordering the sentences to run concurrently radier than consecutively.
Floyd argues on appeal the circumstances he listed were substantial and compelling, particularly the factor that he voluntarily returned to custody for sentencing after being inadvertently released from jail. He also claims he expressed remorse and a desire for rehabilitation and notes the district court heard testimony from a defense expert who testified Floyd was not an extreme recidivism risk and was amenable to treatment. He argues the factors as a whole were substantial and compelling reasons to depart and that the district court erred in disregarding the unique features of his case. The State responds that Floyd had in his possession a number of items it characterized as “morally reprehensible child pomog- raphy” and that none of Floyd’s listed mitigating factors are sufficient to overcome the “appalling and unconscionable nature of his actions.”
This court has previously considered nearly all of the mitigating factors Floyd offers. See, e.g., State v. Mendoza, 292 Kan. 933, 935-36, 258 P.3d 383 (2011) (no abuse of discretion denying motion based on defendant’s duty to support his family); State v. Plotner, 290 Kan. 774, 780-81, 235 P.3d 417 (2010) (no abuse of discretion when district court denied departure based in part on defendant taking responsibility and showed deep remorse); State v. Trevino, 290 Kan. 317, 322-23, 227 P.3d 951 (2010) (no abuse of discretion in denying departure even though defendant had little criminal history); State v. Robison, 290 Kan. 51, 55-57, 222 P.3d 500 (2010) (no abuse of discretion even though defendant had insubstantial criminal history, accepted responsibility, and demonstrated remorse); State v. Spotts, 288 Kan. 650, 655, 206 P.3d 510 (2009) (defendant taking antidepressants; prescription anger, stress, and sleeping medications; and “ ‘just wasn’t thinking right’ " not substantial reason for departure); State v. Gilliland, No. 100,802, 2010 WL 1379182, at *3 (Kan. 2010) (unpublished opinion) (defendant’s age among others not substantial reason to depart).
There are three factors Floyd lists that are unique to his particular case: he was a father to a young son and hoped to be part of his life; he received honorable discharge from the United States Air Force; and he was released from jail shortly after being arrested but “did not try to avoid further arrest and incarcerations.” But reversal is not warranted for these circumstances based upon our standard of review.
The preliminary hearing transcript strongly supports the State’s argument and the district court’s finding that the pornographic images found in Floyd’s possession were numerous and “reprehensible.” The district court’s finding that Floyd’s possession of these materials “indicated he knowingly and willingly took part in allowing and promoting a terrible industry” was not unreasonable, and reasonable people could agree with the district court’s decision denying Floyd’s departure motion. Accordingly, the district court did not abuse its discretion.
Lifetime Postrelease Supervision
Floyd next argues his lifetime postrelease supervision sentence violates the prohibitions against cruel and/or unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. He concedes defense counsel did not raise this issue at sentencing, and he does not argue an exception applies to the general rule that issues raised for the first time are not preserved for appeal. The State argues Floyd cannot raise this issue for the first time on appeal, but it volunteers that the court may avoid this question by addressing whether Floyd’s sentence for lifetime postrelease supervision is illegal and should be vacated under our caselaw.
The State correctly maintains that this court has held it will not consider the cruel and/or unusual punishment argument for the first time on appeal because the district court must first consider the legal and factual argument in fight of the three factors under State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), as stated in State v. Roberts, 293 Kan. 1093, 1096-97, 272 P.3d 24 (2012) (citing State v. Sellers, 292 Kan. 117, 131-32, 253 P.3d 20 [2011] [cruel and unusual punishment for postrelease supervision cannot be raised for the first time on appeal]; State v. Oehlert, 290 Kan. 189, 192-93, 224 P.3d 561 [2010] [same]).
The State also is correct that the postrelease lifetime supervision sentence imposed by the court is illegal because Floyd was subject to parole, not lifetime supervision, and recommends this court vacate that portion of Floyd’s sentence. Floyd did not independently raise this argument, but an illegal sentence issue maybe considered for the first time on appeal. See K.S.A. 22-3504(1) (court may correct an illegal sentence at any time).
A defendant sentenced to an off-grid indeterminate fife sentence may leave prison only if the successor to the Kansas Parole Board grants parole. The sentencing court has no authority to order a term of lifetime postrelease supervision together with an off-grid indeterminate fife sentence. State v. Phillips, 295 Kan. 929, Syl. ¶ 11, 287 P.3d 245 (2012). Floyd was sentenced to a hard 25, meaning no possibility of parole for 25 years. The portion of his sentence ordering lifetime postrelease supervision should be vacated. See State v. Summers, 293 Kan. 819, 831-32, 272 P.3d 1 (2012) (lifetime postrelease supervision vacated when defendant sentenced to hard 25).
Hard 25 Sentence
For his final issue, Floyd argues his mandatory minimum sentence of 25 years is cruel and/or unusual under the Eighth Amendment of the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. And he again concedes trial counsel did not raise this issue at sentencing, but he raises the question to preserve it for federal review. The State again correctly notes the issue was not preserved and this court lacks the district court’s crucial findings on the Freeman factors. This issue was not raised below, so it is not properly before this court on appeal. See Roberts, 293 Kan. at 1096-97 (discussing cases in which this court rejected identical life sentence argument for Jessica’s Law cases on preservation grounds).
Affirmed in part and vacated in part. | [
17,
-18,
-33,
63,
26,
98,
26,
24,
48,
-13,
103,
113,
41,
-14,
4,
122,
-85,
39,
85,
97,
80,
-9,
71,
-31,
-78,
-69,
56,
-43,
-79,
79,
-84,
-99,
10,
80,
-114,
117,
-26,
-54,
-2,
80,
-114,
5,
-102,
-23,
17,
-61,
34,
111,
26,
14,
49,
-98,
-77,
78,
28,
-62,
-119,
110,
91,
-87,
-56,
-111,
-37,
31,
-37,
48,
-94,
-96,
-67,
4,
-8,
127,
88,
57,
1,
-24,
51,
-90,
-126,
116,
79,
-119,
-124,
96,
99,
-95,
29,
-41,
-75,
-56,
15,
110,
-67,
-94,
-102,
89,
66,
101,
-99,
-67,
116,
20,
15,
120,
102,
-116,
61,
-20,
12,
-49,
48,
-109,
-51,
33,
-106,
-70,
-5,
5,
0,
101,
-59,
-90,
68,
-10,
120,
-33,
-98,
-9
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied.
51 Kan. App. 2d 98 | [
-107,
-23,
-19,
28,
-114,
-64,
3,
30,
73,
-97,
117,
83,
-17,
-38,
4,
105,
-2,
47,
49,
122,
-51,
-78,
127,
73,
114,
91,
-101,
-43,
-16,
107,
-11,
-76,
76,
112,
-102,
-43,
-58,
-56,
-83,
88,
-116,
5,
25,
77,
-111,
-117,
54,
-25,
122,
7,
53,
-116,
-13,
44,
26,
65,
-56,
108,
-37,
-67,
-56,
-47,
-71,
23,
-4,
84,
-32,
20,
-48,
65,
64,
62,
-112,
-111,
33,
-24,
115,
38,
-122,
116,
67,
-101,
-123,
109,
98,
34,
40,
-19,
-8,
-82,
30,
28,
-115,
-90,
-109,
9,
75,
9,
-106,
-67,
125,
22,
47,
-6,
107,
-124,
29,
108,
-118,
-18,
-16,
-77,
-33,
57,
4,
17,
-17,
-108,
-106,
113,
-33,
-16,
78,
-42,
-79,
91,
-10,
60
] |
The opinion of the court was delivered by
Rosen, J.:
Cornelius Sisson appeals from his conviction of charges relating to attempting to elude law enforcement officers and possessing drugs and paraphernalia.
On the early morning of December 4, 2010, Officer Matthew Gawith of the Salina Police Department observed a driver malee a right turn without activating the car’s turn signal. Gawith started to follow the car and tried to induce the driver to pull over to a stop, first by turning on his emergency lights, and then by sounding an air horn. Instead of pulling over, the driver accelerated, driving as fast as 50 miles per hour in a posted 30-mile-per-hour zone. The driver also veered across lanes and made multiple turns without signaling. Officer Aaron Carswell joined the pursuit in a separate police car.
The vehicle eventually came to a stop by the side of the road. When Sisson, who was driving, got out of the car, tire officers handcuffed and searched him. After several pat-downs, Officer Carswell eventually found in Sisson’s right front pocket an electronic scale and a baggie containing a vegetable material that was later proved to be marijuana.
Another officer went to the scene of the arrest, and, after seeing that the situation was under control, drove back from tire site. Along the way, she found in the middle of the road nine baggies containing marijuana and one baggie containing cocaine powder. The bags were knotted in a manner similar to tire baggie found in Sisson’s pocket.
On questioning at the police station, Sisson informed an officer that he had purchased the marijuana found in his pocket earlier that day and had intended to start using it just before the police pursuit began. He went on to explain that tire scale was for kitchen use in ordinary cooking.
The case proceeded to trial, and a jury ultimately found Sisson guilty of possession of marijuana, possession of drug paraphernalia, possession of cocaine, and fleeing and eluding, a police officer while committing five or more moving violations. The jury found him not guilty of possession of marijuana with intent to sell, deliver, or distribute; not guilty of possession of marijuana without tax stamps; and not guilty of possession of cocaine without tax stamps. The Court of Appeals affirmed his conviction, and this court granted review with respect to all issues. See State v. Sisson, No. 106,580, 2013 WL 1688933 (Kan. App. 2013) (unpublished opinion).
The first issue that Sisson presents on appeal is the accuracy and sufficiency of the answer that the court provided to a question from the jury.
During deliberations, the jury sent a written question to the court:
“Re: possession of cocaine
“Are we considering cocaine residue on scale as an amount sufficient to allow state to prosicute [sic] for possession?”
The court conferred in chambers with counsel for both parties and Sisson. The parties understood the question to mean that the jury was unsure whether it could convict for possession based on the residue on the scale or on the cocaine found in the baggie on the street. Counsel for Sisson argued that a conviction could only be predicated on the baggie because the residue was insufficient in quantity to support the charge of failure to provide a tax stamp. The State argued, and the court agreed, that State v. Schoonover, 281 Kan. 453, 468, 133 P.3d 48 (2006), required a unanimous finding of guilt under one theory or the other. The court then provided the jury with a written response: “You must find unanimously as to which item they believe to be cocaine.”
On appeal, Sisson reiterates tire argument that the answer was inaccurate, because the State only intended to charge him with the cocaine that was found on the street.
The decision by a district court to respond to a jury’s request for additional information during deliberations is reviewed for abuse of discretion. State v. King, 297 Kan. 955, 976, 305 P.3d 641 (2013); State v. Murdock, 286 Kan. 661, 680, 187 P.3d 1267 (2008). A district court abuses its discretion when it is guided by an erroneous conclusion of law. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Sisson argues that, because the jury acquitted him of possession of cocaine without a tax stamp, it necessarily must have limited the basis of its conviction to the residue found on the scale. He then argues that this residual possession was never charged.
The amended complaint charged one count of possession of cocaine:
“That on or about the 4th day of December, 2010, in Saline County, Kansas, Cornelius Lee Sisson, then and there being present, did unlawfully, feloniously, and intentionally possess or have under such person’s control a controlled substance to-wit: Cocaine.”
The State also charged Sisson with one count of possessing more than 1 gram of cocaine without a tax stamp.
The instruction to the jury on possessing cocaine read:
“The defendant is charged with the crime of unlawfully possessing cocaine. The defendant pleads not guilty. To establish this charge, each of the following claims must be proved:
“1. That the defendant intentionally possessed cocaine; and
“2. That this act occurred on or about the 4th day of December, 2010, in Saline County, Kansas.
“Possession means having joint or exclusive control over an item with knowledge of and the intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.”
The complaint did not specify which cocaine Sisson was alleged to possess—the cocaine residue on the scale or the cocaine in the baggie on the road. Evidence supporting either theory was presented to the jury, although tire jury apparently elected to exonerate Sisson of possessing the cocaine in the baggie. Proof of possession of any amount of a controlled substance suffices to sustain a conviction even if the amount is not measurable or useable. State v. Berry, 223 Kan. 102, Syl. ¶ 2, 573 P.2d 584 (1977).
While Sisson argues that the State did not intend to convict him of possessing cocaine residue found pn the scale, the charging documents did not distinguish between the cocaine found on the road and the cocaine found on the scale in Sisson’s pocket. The evidence that die State presented to the jury supported both theories of possession, and the instructions that the court gave to the jury allowed a conviction under either theoiy. Following the answer to the jury’s question, the jury understood that it had to be unanimous in choosing a theory of which cocaine Sisson possessed in order to sustain a conviction.
Sisson also argues that the court’s reply to the question was non-responsive. The jury asked whether the residue was sufficient to support a prosecution for possession. The court replied that the jury had to be unanimous in deciding which item it believed to be cocaine. The juiy already had before it instructions defining possession.
The alternative theories of possession that the evidence supported invokes a multiple-acts analysis. In such an instance, the State must inform the jury upon which act to rely, or the district court must instruct the jury to agree on the specific act for each charge. State v. De La Torre, 300 Kan. 591, 596, 331 P.3d 815, cert. denied 135 S. Ct. 728 (2014). Although the original instruction did not direct the jury to make its choice unanimously, the answer to the juiy’s question informed the jury that it would have to find guilt unanimously based on one cocaine location or the other.
It is evident that the juiy based its conviction on the residue. The court instructed the jury that it had to be unanimous in rendering such a conviction. There was nothing improper about the conviction, and the instructions, read together with the answer to the juiy’s question, were enough for the juiy to understand the foundation for a conviction. The court’s answer sufficed to allow the jury to fulfill its function as a factfinder.
Sisson next contends that his defense was prejudiced by the State’s failure to disclose in advance of the trial the existence of a videotape of vehicle pursuit.
During the State’s direct examination of the officer who made the initial stop, the State sought to introduce as an exhibit the on-board camera videotaped recording of the pursuit. Sisson’s counsel objected, stating that he had never been provided a copy of that video, had never had a chance to review it, and had no idea what the video contained. The prosecution responded that the video had been available to the defense the entire time. Sisson’s counsel then stated that he had sent a letter to the prosecution formally requesting discovery. It was noted that there was no discovery order, and the court admitted the exhibit with the provision that defense counsel have the opportunity to review it.
Sisson argues that the State violated K.S.A. 22-3212 by failing to provide the requested materials before trial. Unfortunately, the record is not sufficiently complete for this court to determine whether the State actually withheld the videotape or obstructed efforts by Sisson’s counsel to obtain it. Although Sisson’s counsel asserted at trial that he had sent a letter requesting discovery, the letter is not included in the record on appeal. It is unknown what materials counsel requested or what steps he wanted the State to take to make evidence available, and it is unknown whether counsel specifically requested the videotape, the existence of which was brought up at the preliminary hearing. The State responded to Sisson’s objection to introducing the tape at trial by explaining that tire tape was available to the defense during the entire pendency of the trial.
A party asserting that prejudicial error has occurred has the burden of designating a record that affirmatively shows the error. State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012). In die absence of a record that this court can review, we are unable to conclude that the State violated its affirmative duty to malee evidence available to the defense.
Sisson’s counsel emphasized during cross-examinations and during closing argument tirat the videotape did not show any objects being thrown from Sisson’s vehicle. It appears that the jury was persuaded by the defense argument based on the videotape. For that reason, we do not detect any prejudice to the defense in its lack of advance viewing of die tape: it used the tape to its advantage, and it succeeded. To be sure, die tape also supported the State’s case for fleeing and eluding a police officer, but there was nothing exculpatory in the tape with respect to that charge: the tape showed Sisson continuing to drive for some minutes after the officer provided audio and visual cues for him to pull over.
Both because Sisson does not demonstrate tiiat the State breached its affirmative duty to malee the tape available in advance of trial and because of the lack of demonstrable prejudice, we conclude that the district court did not abuse its discretion by allowing the State to introduce the evidence. The tape merely corroborated the testimony of police officers that Sisson was committing traffic violations as he drove away from pursuing police cars and helped defeat the assertion that the drugs on the street belonged to Sisson.
Sisson finally complains that an instruction on drug paraphernalia improperly invaded the province of the juiy by directing the juiy to find that the scale necessarily constitutes illegal paraphernalia.
Sisson did not object to the proposed instructions. The standard of review is therefore based on clear error. See State v. Smith-Parker, 301 Kan. 132, 163, 340 P.3d 485 (2014); K.S.A. 22-3414(3).
When determining whether an instruction was clearly erroneous, the appellate court first determines whether there was any error at all. In making that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record, if the appellate court determines that the district court erred in giving a challenged instruction, then the analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden of establishing the degree of prejudice necessary for reversal. State v. Williams, 295 Kan. 506, Syl. ¶ 4, 5, 286 P.3d 195 (2012).
Jury Instruction No. 11 reads:
“’Drug paraphernalia’ means all equipment, and materials of any kind which are used or primarily intended or designed for use in preparing, packaging, repackaging a controlled substance.
“’Drug paraphernalia’ includes:
(1) scales.”
The instruction closely tracks both K.S.A. 2014 Supp. 21-5701(f)(5), which includes scales in the definition of paraphernalia, and PIK Crim. 4th 57.180. Sisson contends on appeal that this instruction is clearly erroneous, because it required the jury to find that scales are paraphernalia.
Sisson grounds his argument that the instruction improperly intrudes on tire province of the juiy on State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003). In Brice, the district court instructed the jury that “a through and through bullet wound” constitutes great bodily harm for purposes of aggravated battery. This court stated:
“Here . . . tire trial judge went beyond tailoring a definition to the evidence. He instructed the jury that the evidence, a through and through bullet wound, and an essential element of the offense, great bodily harm, were synonymous. In other words, the trial judge told the jury that tire State’s evidence established the element of great bodily harm. Such an instruction invades tire province of the jury as the factfinder and violated Brice’s Fifth and Sixth Amendment rights to have the jury determine his guilt or innocence.” 276 Kan. at 772.
It is the role of the jury to determine the facts in a manner independent of the court and to apply the law to those facts in reaching its decision. State v. Stieben, 292 Kan. 533, 537, 256 P.3d 796 (2011). Judges invade the province of the jury when, instead of simply instructing the juiy on the law, they apply the law to the facts as they have determined the facts to be. State v. Rodriguez, 295 Kan. 1146, 1155, 289 P.3d 85 (2012). Such a judicial determination of facts is “ ‘tantamount to a directed verdict for the prosecution, a result that is condemned by the Constitution.’ ” Brice, 276 Kan. at 770 (quoting United States v. Mentz, 840 F.2d 315, 320 [6th Cir. 1988]). “[I]t is not competent for the court, in a criminal case, to instruct the jury peremptorily to find the accused guilty of the offense charged, or of any criminal offense less than that charged.” Sparf v. United States, 156 U.S. 51, 105, 15 S. Ct. 273, 39 L. Ed. 343 (1895).
Instruction No. 11 informed the jury that scales are to be considered drug paraphernalia as a matter of law, and, read in isolation from other instructions, may have suggested that the only matter for the jury was to determine whether Sisson possessed the items.
Instruction No. 11 was not, however, the only instruction given to the jury on the subject of paraphernalia. As this court noted in Brice,
“In reviewing jury instructions, an appellate court is required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous.” 276 Kan. at 761.
See also Sweaney v. United Loan & Finance Co., 205 Kan. 66, 71, 468 P.2d 124 (1970) (one phrase in a jury instruction does not warrant reversal when instructions as a whole properly state the law); Riddle v. State Highway Commission, 184 Kan. 603, 638, 339 P.2d 301 (1959) (one instruction cannot be isolated from other instructions but must be read together will all instructions); State v. Johnson, 92 Kan. 441, 449-50, 140 P. 839 (1914); State v. Bohan, 19 Kan. 28, 55-56 (1877) (instructions to be considered as a whole and if not erroneous when so construed, no single one of them is erroneous).
This court has long held that appellate courts presume that juries follow the instructions given by district courts. See, e.g., State v. Holt, 300 Kan. 985, 1005, 336 P.3d 312 (2014); Smith v. Ice and Delivery Co., 117 Kan. 485, 489-90, 232 P. 603 (1925) (presume that jury does not read one instruction as doing away with other instructions); Townsend v. City of Paola, 41 Kan. 591, 595, 21 P. 596 (1889).
Jury Instruction No. 9 reads in relevant part:
“The defendant is charged with the crime of unlawfully possessed [sic] with intent to use drug paraphernalia. The defendant pleads not guilty. To establish this charge, each of the following claims must be proved:
“1. That the defendant intentionally possessed with the intent to use scales as drug paraphernalia to distribute cocaine; and
“2. That this act occurred on or about the 4th day of December, 2010, in Saline County, Kansas.
‘"Distribute’ means the actual, constructive or attempted transfer of some item from one person to another, whether or not there is an agency relationship between them.
“’Distribute’ includes sale, offer for sale or any act that causes some item to be transferred from one person to another.
“’Distribute’ does not include acts of administering, dispensing or prescribing a controlled substance as authorized by law.
“’Possession’ means having joint or exclusive control over an item with knowledge of and die intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.”
Jury Instruction No. 10 reads:
“In determining whether an object is drug paraphernalia, you shall consider, in addition to all odier logically relevant factors, the following:
“Statements by an owner of the object concerning its use.
“The proximity of the object, in time and space, to a direct commission of a drug crime.
“The proximity of the object to controlled substances.
“The existence of any residue of controlled substances on the object.”
Both instructions 9 and 10 informed the jury that it had to find that the defendant was using the scale as an accessory to illegal drug distribution. In the context of tiróse instructions, Instruction No.11 simply defined which objects tire State was including in its accusation of possessing drug paraphernalia. Even that instruction specified that the items must be “used or primarily intended or designed for use in preparing, packaging, repackaging a controlled substance.” Reading the instructions as a whole, they informed the jury that it had to do more than simply find that Sisson was the possessor of scales; it had to find that he was using or intended to use the scale as paraphernalia for use in distributing controlled substances.
The instructions given in tire present case track tire statutory language and accurately state the law. We see no error in the wording of the instructions, and we therefore conclude that the district court did not commit error. To hold otherwise would invite dissection of instructions to find portions that, when read in isolation, misstate the law. We credit juries with an ability' to understand words in context.
The opinion of the Court of Appeals affirming Sisson’s conviction is affirmed. The judgment of the district court is affirmed. | [
-112,
104,
-4,
30,
62,
32,
-77,
28,
81,
-5,
-28,
51,
-87,
-40,
5,
59,
-85,
55,
116,
73,
-11,
-89,
71,
-109,
50,
-13,
107,
-60,
-77,
-55,
109,
-36,
15,
16,
-118,
85,
38,
72,
-89,
88,
-50,
5,
-128,
112,
18,
34,
36,
58,
19,
15,
49,
14,
-29,
46,
17,
89,
109,
40,
-37,
-87,
-55,
-46,
-103,
21,
-33,
20,
-77,
32,
-65,
-121,
-40,
62,
-104,
49,
32,
120,
115,
-90,
-110,
-12,
109,
-103,
-124,
-94,
98,
-95,
60,
-84,
-76,
-116,
28,
63,
15,
-89,
88,
89,
67,
-124,
-106,
-97,
119,
18,
15,
-12,
-5,
-43,
5,
120,
3,
90,
-72,
-111,
77,
112,
22,
121,
-33,
69,
48,
97,
-49,
-30,
86,
116,
114,
-101,
-117,
-43
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
The opinion of the court was delivered by
Nuss, C.J.:
Scott Paul Cordell challenges his 19-month prison sentence. The district court based the sentence in part upon Cordell’s criminal history score of A, which it calculated by classifying two of his 1986 Kansas juvenile burglary adjudications as person felonies. Cordell contends the court’s person felony classifications are unconstitutional because they required judicial fact- finding that went beyond merely finding the existence of a prior adjudication or the statutory elements of the prior adjudication.
We agree, based upon State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). The court’s classifications depended upon the implicit finding that Cordell burglarized a dwelling, which was not a statutory element of burglary in 1986. Accordingly, we vacate his sentence and remand to the district court for resentencing.
Facts and Procedural History
The State charged Cordell with one count of aggravated escape from custody in 2012. During plea negotiations, the district court granted his motion for a presentence investigation report (PSI) determining his criminal history. But Cordell pled guilty before the PSI could be prepared.
Before Cordell’s sentencing, the PSI was completed. Court services initially calculated his criminal history score as C but later amended it to A. The increased criminal history score reflected six juvenile adjudications from 1986 that were not included in the initial criminal history worksheet. The journal entry from the 1986 adjudications disclosed that Cordell stipulated to three counts of burglary and three counts of theft.
Cordell objected to his amended score. He focused on the two 1986 adjudications for “residential burglary” classified as juvenile person felonies which, when combined with another person felony, elevated his criminal history score to A. See K.S.A. 2014 Supp. 21-6809 (offender falls into criminal history category A when offender’s criminal history includes three or more adult convictions or juvenile adjudications for person felonies, in any combination). His increased criminal history score also increased his presumptive sentencing range from 17 to 19 months’ probation to 19 to 23 months’ imprisonment.
To buttress Cordell’s objection, he argued the district court should not consider the residential burglary adjudications as person felonies because the 1986 journal entry did not specify whether he had entered a “dwelling”—a distinction that controls whether a burglary conviction qualifies as a person conviction under current law. See K.S.A. 2014 Supp. 21-5807. The State countered that the adjudications were person felonies because the charging document specified the charges arose from the burglary of residences, which the State equated with dwellings. As support, the State produced the 1986 charging document, which alleged Cordell had entered “the residence of Dora O’Brien” and “the residence of Katherine Lamb.”
The court approved the designation of the residential burglary adjudications as person felonies and, in turn, approved the calculation of Cordell’s criminal history as A. Based on these rulings, the court sentenced Cordell to 19 months’ imprisonment.
After a panel of the Court of Appeals affirmed the district court, State v. Cordell, No. 108,431, 2013 WL 5870043 (Kan. App. 2013) (unpublished opinion), we granted Cordell’s petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
Analysis
Issue: The district court erred by classifying Cordell’s 1986 burglary adjudications as person felonies.
Cordell urges this court to vacate his sentence and remand for resentencing because the district court incorrectly calculated his criminal history score—and imposed the resulting sentence—after wrongly classifying his 1986 burglary adjudications as person felonies. He argues the district court’s approach to these prior burglary adjudications violated his constitutional rights under Descamps v. United States, 570 U.S. _, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The State responds the court properly treated the adjudications as person felonies because Cordell stipulated that those charges arose from burglaries of residences.
Standard of review
Whether the district court properly classified Cordell’s prior burglary adjudications as person crimes for criminal history purposes raises a question of law subject to unlimited review. Dickey, 301 Kan. at 1034 (citing State v. Murdock, 299 Kan. 312, 314, 323 P.3d 846 [2014]).
Discussion
K.S.A. 2014 Supp. 21-6811(d), as amended by House Bill No. 2053 on April 2, 2015, governs the treatment of prior juvenile adjudications for burglary when calculating a defendant’s criminal histoiy. It provides:
“Prior burglary . . . juvenile adjudications will be scored for criminal history purposes as follows:
(1) As a prior person felony if the prior . . . adjudication was classified as a burglary as defined in K.S.A. 21-3715(a), prior to its repeal, or K.S.A. 2014 Supp. 21-5807(a)(1), and amendments thereto.
(2) As a prior nonperson felony if the prior conviction or adjudication was classified as a burglary as defined in K.S.A. 21-3715(b) or (c), prior to its repeal, or K.S.A. 2014 Supp. 21-5807(a)(2) or (a)(3), and amendments thereto.
“The facts required to classify prior burglary adult convictions and juvenile adjudications shall be established by the state by a preponderance of the evidence.” L. 2015, ch. 5, sec. 2.
The district court concluded the State proved by a preponderance of the evidence that Cordell’s 1986 burglary adjudications were person crimes. But the distinction between person and nonperson burglaries under K.S.A. 2014 Supp. 21-6811(d) hinges on whether the offender burglarized a dwelling, which was not an element of burglary in 1986. So Cordell argues the court’s person crime classification required an unconstitutional judicial finding that the 1986 burglaries indeed involved a dwelling.
Cordell’s argument is controlled by our decision in Dickey— where the defendant raised a virtually indistinguishable argument. There, we held “in order to classify a prior burglary... adjudication as a person offense under K.S.A. 2014 Supp. 21-6811(d), a sentencing court must find that the prior burglary involved a ‘dwelling,’ ” which is defined by statute as “ ‘a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home, or residence.’ ” 301 Kan. at 1021 (quoting K.S.A. 2014 Supp. 21-5111 [k]). Because the burglary statute under which Dickey was convicted did not include an element that the structure burglarized be a dwelling, we held the district court’s person classification was constitutionally prohibited under Descamps and Apprendi. 301 Kan. at 1039 (citing Descamps, 133 S. Ct. at 2288-89).
We reach the same conclusion here. The statute under which Cordell stipulated to burglary in 1986, K.S.A. 21-3715 (Ensley 1981), defined burglary as:
“knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein.
“Burglary is a class D felony.”
Like the statute in Dickey, the burglary statute here does not include a dwelling element. So tire district court’s classification of a person crime necessarily required a judicial finding of fact, i.e., that the statutorily-required “structures” that Cordell burglarized were dwellings. See Dickey, 301 Kan. at 1022-23. Because that finding goes beyond simply identifying the statutory elements of the prior burglary adjudication, it is prohibited by Descamps and Apprendi, as we applied those decisions to K.S.A. 2014 Supp. 21-6811(d) in Dickey.
Absent the district court’s prohibited finding, Cordell’s 1986 burglary adjudications should have been classified as nonperson crimes. That classification would have resulted in a lower criminal history score and a lower presumptive sentence under the Kansas Sentencing Guidelines. See State v. Ballard, 289 Kan. 1000, 1005, 218 P.3d 432 (2009) (“ ‘presumptive sentence’ ” is “ ‘the sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the current crime of conviction and the offender’s criminal history’ ”) (quoting K.S.A. 21-4703[q] [repealed and recodified at K.S.A. 21-6803(q)]). As a result, we vacate Cordell’s sentence and remand for resent-encing.
Judgment of the Court of Appeals affirming the judgment of the district court is reversed. Judgment of the district court is reversed and remanded with directions. | [
-16,
-22,
-3,
-66,
27,
-64,
10,
-80,
3,
-105,
-95,
83,
45,
-50,
4,
106,
27,
117,
85,
104,
-51,
-105,
115,
-63,
-90,
-13,
-38,
-43,
-65,
91,
-12,
22,
26,
-16,
-62,
-11,
38,
8,
101,
88,
-114,
-122,
-72,
-64,
-47,
64,
44,
108,
27,
14,
53,
-100,
-77,
122,
-102,
-53,
73,
41,
75,
57,
64,
-103,
-117,
7,
-56,
20,
-77,
-91,
-70,
4,
112,
32,
-98,
56,
0,
-8,
-13,
22,
-122,
116,
111,
-101,
-91,
102,
98,
33,
28,
-58,
-72,
9,
47,
15,
-115,
103,
-101,
89,
71,
36,
-106,
-67,
116,
118,
39,
-4,
103,
-60,
23,
108,
-123,
-57,
-72,
-111,
77,
50,
70,
-5,
-13,
33,
-127,
97,
-50,
-30,
94,
87,
113,
-69,
-82,
-43
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied
50 Kan. App. 2d 1133 | [
21,
-21,
-19,
60,
-116,
-128,
-127,
30,
9,
-5,
117,
83,
-17,
-42,
4,
123,
110,
111,
-75,
123,
-53,
-74,
127,
72,
82,
90,
-53,
-35,
-71,
107,
-15,
-108,
76,
-16,
-86,
21,
6,
-62,
-115,
88,
-116,
4,
-103,
-51,
17,
-109,
60,
-29,
122,
7,
17,
-123,
-13,
44,
26,
-31,
-127,
108,
-53,
-67,
-23,
-7,
-71,
-105,
-4,
20,
-94,
20,
-100,
65,
80,
126,
-112,
-48,
33,
-24,
115,
38,
-122,
116,
67,
-103,
-95,
100,
98,
35,
40,
-19,
124,
-81,
14,
28,
13,
-90,
-45,
8,
105,
25,
-106,
-99,
121,
22,
11,
-6,
107,
-124,
95,
108,
-118,
-1,
-8,
-77,
11,
57,
12,
17,
-17,
-108,
-112,
49,
-33,
-16,
78,
-57,
49,
-102,
110,
-80
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
The opinion of the court was delivered by
Beier, J.:
This case presents the question of whether a criminal defendant, whose conviction has been reversed in a K.S.A. 60-1507 proceeding and who has entered a plea to different charges pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), may pursue a legal malpractice claim against trial and appellate counsel without first demonstrating actual innocence. We also are asked to decide whether the Board of Indigents’ Defense Services (BIDS) is subject to suit in the malpractice action and whether suit was timely filed under the applicable statute of limitations.
We affirm the district court judge’s decision that BIDS cannot be a party defendant but otherwise reverse. Proof of actual innocence is not required to pursue a legal malpractice claim of this type, and this action was timely filed.
Factual and Procedural Background
In October 2003, the State charged Jason Mashaney with one count of aggravated criminal sodomy and one count of aggravated indecent liberties with a child based on allegations made by the mother of Mashaney’s 5-year-old daughter. The State later amended the complaint to add an alternative count of aggravated indecent liberties.
The district court appointed Sarah Sweet-McKinnon of the Sedgwick County Public Defender’s Office to serve as Mashaney’s trial counsel. After Mashaney’s first jury trial ended in a mistrial, the case proceeded to a second juiy trial. On July 9, 2004, the jury convicted Mashaney.
Before sentencing, Mashaney filed a pro se motion to set aside the verdict based on ineffective assistance of counsel. Mashaney made a number of general allegations to support his argument that Sweet-McKinnon’s representation had been deficient. The district court judge appointed new defense counsel and held an evidentiary hearing on Mashaney’s motion on November 17, 2004. The judge denied the motion and sentenced Mashaney to 442 months’ imprisonment.
Virginia A. Girard-Brady of the Appellate Defender’s Office represented Mashaney in his appeal. The Court of Appeals denied Mashaney relief, and this court denied a subsequent petition for review. See State v. Mashaney, No. 94,298, 2007 WL 1109456 (Kan. App. 2007) (unpublished opinion), rev. dented 284 Kan. 949 (2007). Ineffective assistance of trial counsel was not an issue raised on appeal.
On April 11, 2008, Mashaney filed a pro se K.S.A. 60-1507 motion in which he alleged ineffective assistance of both trial and direct appeal counsel. The motion was denied summarily 6 months later. Mashaney appealed the denial to the Court of Appeals. The Court of Appeals reversed and remanded the case to the district court for an evidentiary hearing. See Mashaney v. State, No. 101,978, 2010 WL 3731341 (Kan. App. 2010) (unpublished opinion). After the hearing, the district judge granted Mashaney’s K.S.A. 60-1507 motion on April 11, 2011. Mashaney’s case went back onto the trial calendar.
Mashaney and the State entered a plea agreement on December 28, 2011. Mashaney agreed to enter an Alford plea, see 400 U.S. at 37, on two counts of attempted aggravated battery and one count of aggravated endangering a child. In exchange, the State dropped the original charges. The district judge accepted Mashaney’s plea and, on February 24, 2012, sentenced him to 72 months’ imprisonment. Because Mashaney had already served more than 72 months of his original 442-month sentence, he was released from custody.
Between entering into the plea agreement and sentencing, on January 13, 2012, Mashaney filed this legal malpractice action against Sweet-McKinnon, Girard-Brady, and BIDS. The bases for Mashaney s claim against Sweet-McKinnon were similar to the grounds for his ineffective assistance of counsel claim in his K.S.A. 60-1507 motion. As to Girard-Brady, Mashaney alleged she had committed malpractice by failing to raise the issue of Sweet-McKinnon’s ineffective assistance on direct appeal. On BIDS, Mashaney alleged that it had breached its duty “to provide for effective assistance of counsel to its clients through the selection, training, and supervision of capable attorneys.” Mashaney asserted that he had always denied abusing his daughter. He also asserted that, as a result of defendant’s malpractice, he had been “improperly convicted in 2004 and was therefore forced to serve nearly eight (8) years in prison, which would not have occurred had he received proper representation.” Mashaney sought $1,600,000 in economic and non-economic damages.
Sweet-McKinnon and Girard-Brady raised affirmative defenses in their answers to Mashaney’s petition. Sweet-McKinnon contended that Mashaney was estopped from pursuing his negligence claim by the 2011 Alford plea. Girard-Brady also asserted that Mas-haney’s claims were barred by virtue of his guilty plea. In addition, she claimed Mashaney filed his suit beyond the statute of limitations. Both Sweet-McKinnon and Girard-Brady moved for judgment on the pleadings. BIDS moved to dismiss on the ground that it lacked the capacity to be sued.
District Judge Douglas R. Roth granted the defendants’ motions. He agreed with BIDS that it lacked the capacity to be sued. He also ruled that Mashaney’s Alford plea foreclosed the relief sought. With the parties’ blessing, Judge Roth also decided to “tee it up for the appellate court” and ruled that Mashaney’s claim was time barred.
On appeal to the Court of Appeals, Mashaney challenged each of the three district court rulings. See Mashaney v. Board of Indigents’ Def Servs., 49 Kan. App. 2d 596, 313 P.3d 64 (2013). All three panel members agreed that BIDS lacked the capacity to be sued. All three disagreed that Mashaney’s claim was time barred, because a criminal defendant’s cause of action for legal malpractice does not accrue until the defendant’s conviction is overturned. Because Mashaney filed his malpractice suit within 2 years after his K.S.A. 60-1507 motion was granted in district court, the panel ruled that his claim was timely filed. But the panel split on the effect of Mashaney s Alford plea. The majority held that a criminal defendant must prove actual innocence in order to pursue a malpractice action and that Mashaney’s plea foreclosed the possibility of marshaling such proof. Judge G. Gordon Atcheson wrote a lengthy dissenting opinion criticizing the majority’s reliance on the actual innocence rule. 49 Kan. App. 2d at 622-46.
Mashaney petitioned this court for review of the panel’s unanimous holding that BIDS lacked the capacity to be sued and the panel majority’s holding that his Alford plea precluded his suit because of tire actual innocence rule. BIDS, Sweet-McKinnon, and Girard-Brady cross-petitioned for review of tire panel’s holding that Mashaney’s malpractice action was timely.
We granted Mashaney’s petition and the defendants’ cross-petitions.
Discussion
BIDS Lacks the Capacity to be Sued
Because the capacity of a subordinate government agency to sue or be sued turns on statutory interpretation, this court’s review of the BIDS issue is unlimited. See Cheney v. Poore, 301 Kan. 120, 125, 339 P.3d 1220 (2014) (statutory interpretation question of law subject to unlimited review).
BIDS is a subordinate government agency created within the Kansas executive branch. See K.S.A. 22-4519(a) (creating BIDS).
“Subordinate government agencies, in the absence of statutory authorization, ordinarily do not have the capacity to sue or be sued. Hopkins v. State, 237 Kan. 601, 606, 702 P.2d 311 (1985). The statutory authority [for suit] need not be express, but can be implied. See Board of Library Directors v. City of Ft. Scott, 134 Kan. 586, 588, 7 P.2d 533 (1932).” Lindenman v. Umscheid, 255 Kan. 610, 628-29, 875 P.2d 964 (1994).
Mashaney concedes that there is no express statutory authorization vesting BIDS with the capacity to sue or be sued, but he urges this court to “delve beyond the surface” of the Indigents’ Defense Services Act, K.S.A. 22-4501 et seq., to find such authority.
Mashaney primarily relies on K.S.A. 22-4522(a), which requires BIDS to “[p]rovide, supervise and coordinate, in the most efficient and economical manner possible, the constitutionally and statutorily required counsel and related services for each indigent person accused of a felony and for such other indigent persons as prescribed by statute.” According to Mashaney, BIDS had an affirmative duty to provide him with competent counsel and to supervise that counsel. But, as the Court of Appeals noted, K.S.A. 22-4520 expressly forbids BIDS from making any decision regarding the handling of any case and from interfering with counsel in carrying out his or her professional duties. 49 Kan. App. 2d at 601. The supervision contemplated in K.S.A. 22-4522(a) is not the type Mashaney wishes to rely upon to expose BIDS to malpractice liability.
Mashaney also contends that “the forces of equity in the absence of statutory direction demand that BIDS be subject to suit” because “it is repugnant to allow [BIDS] to appoint and supervise ineffective counsel, yet then lack accountability for said supervision.” Mashaney cites no authority for this novel theory of liability, and, again, his argument is premised on a misconception about the supervision BIDS exercises over appointed counsel.
The Court of Appeals correctly held that BIDS lacked the capacity to be sued. 49 Kan. App. 2d at 601.
Statute of Limitations
“The interpretation and application of a statute of limitations is a question of law over which an appellate court exercises unlimited review.” Schoenholz v. Hinzman, 295 Kan. 786, 791, 289 P.3d 1155 (2012).
Maslianey’s legal malpractice claim is governed by K.S.A. 60-513(a)(4) and its 2-year statute of limitations. See Pancake House, Inc. v. Redmond, 239 Kan. 83, 86, 716 P.2d 575 (1986) (where essential claim of action is breach of duty imposed by law upon relationship of attomey/client, action in tort). And K.S.A. 60-513(b) provides that a legal malpractice claim
“shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.”
In Pancake House, this court explained that “a cause of action accrues, so as to start the running of the statute of limitations, as soon as the right to maintain a legal action arises. . . . [A]n action accrues [when] the plaintiff could first have filed and prosecuted his action to a successful conclusion.” 239 Kan. at 87.
In the context of a legal malpractice claim, the Pancake House court identified “four theories which can apply to attorney malpractice in Kansas as to when the accrual of a cause of action occurs and the statute of limitations begins to run.” 239 Kan. at 87.
“(1) The occurrence rule—die statute begins to run at the occurrence of die lawyer’s negligent act or omission.
“(2) The damage rule—the client does not accrue a cause of action for malpractice until he suffers appreciable harm or actual damage as a consequence of his lawyer’s conduct.
“(3) The discovery rule—the statute does not begin to run until the client discovers, or reasonably should have discovered, the material facts essential to his cause of action against the attorney.
“(4) The continuous representation rule—the client’s cause of action does not accrue until die attorney-client relationship is terminated.” 239 Kan. at 87.
The determination of which theory applies depends upon the facts and circumstances of each case. 239 Kan. at 87.
In Canaan v. Bartee, 276 Kan. 116, 120, 72 P.3d 911, cert. denied 540 U.S. 1090 (2003), we considered “[w]hether a plaintiff must be exonerated in postconviction proceedings before bringing a legal malpractice action against his criminal defense attorney.” (Emphasis added.)
The plaintiff in Canaan, Marvin Canaan, had been convicted of first-degree murder and other crimes and sentenced to life in prison. He filed a legal malpractice suit against his criminal defense attorney. The attorney filed a motion for summary judgment arguing that Canaan’s cause of action had not yet accrued because he had not obtained postconviction relief. The district court judge granted the motion. After transfer to this court from the Court of Appeals, we recognized a split in authority. Compare Levine v. Kling, 123 F.3d 580, 583 (7th Cir. 1997) (applying Illinois law); Shaw v. State, Dept. of Admin., PDA, 816 P.2d 1358, 1360 (Alaska 1991); Steele v. Kehoe, 747 So. 2d 931, 933 (Fla. 1999); Berringer v. Steele, 133 Md. App. 442, 484, 758 A.2d 574 (2000); Morgano v. Smith, 110 Nev. 1025, 1029, 879 P.2d 735 (1994); Stevens v. Bispham, 316 Or. 221, 238, 851 P.2d 556 (1993); Bailey v. Tucker, 533 Pa. 237, 251, 621 A.2d 108 (1993); Gibson v. Trant, 58 S.W.3d 103, 117 (Tenn. 2001); Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex. 1995); Adkins v. Dixon, 253 Va. 275, 281-82, 482 S.E.2d 797 (1997), with Mylar v. Wilkinson, 435 So. 2d 1237 (Ala. 1983); Silvers v. Brodeur, 682 N.E.2d 811, 818 (Ind. App. 1997); Gebhardt v. O’Rourke, 444 Mich. 535, 548, 510 N.W.2d 900 (1994); Duncan v. Campbell, 123 N.M. 181, 186, 936 P.2d 863 (Ct. App. 1997); Krahn v. Kinney, 43 Ohio St. 3d 103, 105, 538 N.E.2d 1058 (1989). Finding the majority position persuasive, we adopted the “exoneration rule,” which required “[a] person convicted in a criminal action [to] obtain postconviction relief before maintaining an action alleging malpractice against his or her former criminal defense attorneys.” 276 Kan. 116, Syl. ¶ 2.
Our Canaan decision implicitly defined “exoneration” as a legal concept, not a moral or ethical one. Exoneration requires the lifting of criminal liability by vacation or reversal of a conviction, regardless of whether tire vacation or reversal is compelled by a successful assertion of actual innocence. It thus appears that the “exoneration rule” of Canaan might be more accurately termed the “vindication rule.” But we do not depart from Canaan’s terminology today.
Canaan did not involve a statute of limitations issue, but we noted that one of the policy reasons supporting adoption of an exoneration rule was its potential to create “a bright line rule determining when the statute of limitations runs on the malpractice action.” 276 Kan. at 123. In short, the requirement that a criminal defendant who seeks to become a civil plaintiff in a legal malpractice action first obtain vacation or reversal of his or her conviction or another court decision otherwise vindicating or recognizing the injury the defendant has suffered because of counsel’s error or errors gives us a date certain when proof for all of the elements of a malpractice case—duty, breach, causation, and damages—is available. Using the date of the court’s decision in the defendant’s favor in the criminal action as the date of accrual of the cause of action for legal malpractice in the civil realm most nearly fits under our Pancake House precedent. See 239 Kan. at 87. In essence, the Canaan exoneration rule does not accept the criminal client’s unilateral discovery of “the material facts essential to his cause of action against the attorney.” 239 Kan. at 87. Such discovery must be validated by some form of relief from conviction. As we put it in Canaan,
“the adoption of the exoneration rule could be construed simply as a recognition that a plaintiff has no cause of action until he or she can establish the causation element of his or her claim. In other words, until a plaintiff has been exonerated, his or her criminal conduct and not his or her attorney’s negligence is the proximate cause of his or her incarceration.” 276 Kan. at 131.
In this case, the panel relied upon Canaan to conclude that Mas-haney’s civil cause of action for legal malpractice accrued when Mashaney obtained relief from his convictions. Because he filed his malpractice claim within 2 years of April 11, 2011, the date his K.S.A. 60-1507 motion was granted, and within 10 years of the Sweet-McKinnon and Girard-Brady conduct giving rise to the claim, the panel held that his action was timely.
We agree with the panel’s general approach. “A cause of action accrues when tire right to institute and maintain a suit arises, or when there is a demand capable of present enforcement.” Holder v. Kansas Steel Built, Inc., 224 Kan. 406, 410, 582 P.2d 244 (1978); see Pancake House, 239 Kan. at 87 (“true test” of accrual determines point at which plaintiff could first have filed, prosecuted action to successful conclusion). Under Canaan and its exoneration rule, a criminal defendant cannot pursue a legal malpractice action that seeks to hold counsel responsible for a conviction until that conviction is reversed on the basis of ineffective assistance. 276 Kan. 116, Syl. ¶ 2. Accordingly, any legal malpractice claim does not accrue until that point. Cf. Martin v. Naik, 297 Kan. 241, 255, 300 P.3d 625 (2013) (“[B]ecause an anticipatory wrongful death action cannot be brought, an accrual of the action before death would be unreasonable.”).
This does not complete our analysis in this case, however. The procedural history of Canaan differed from that before us here. The defendant in Canaan had failed to obtain any relief from his conviction, achieved through a postconviction motion or otherwise, before filing his malpractice action. This meant we were not called upon to decide how thorough and permanent relief must be to trigger legal exoneration and thus accrual of his malpractice action. Here, in contrast, we must go further. Mashaney did obtain relief from his original convictions through his K.S.A. 60-1507 motion, and we must therefore decide if the district judge’s April 11, 2011, order was adequate legal exoneration. Was additional, final action disposing of the case against Mashaney required?
Courts in our sister states have differed on the answer to this question.
In at least two jurisdictions, courts have explicitly held that reversal of a conviction that is potentially temporary is insufficient to qualify as legal exoneration.
In Rogers v. Cape May Cnty. Office of Pub. Defender, 208 N.J. 414, 425, 31 A. 3d 934 (2011), the Supreme Court of New Jersey held that exoneration sufficient to support a legal malpractice claim required the ultimate dismissal of the underlying criminal case against the defendant with prejudice; mere reversal of die defendant’s conviction was not enough.
And, in Cira v. Dillinger, 903 So. 2d 367, 371 (Fla. Dist. App. 2005), the court ruled that “the reversal of a conviction on direct appeal or the entry of an order for postconviction relief does not necessarily result in the exoneration.” After noting the policy reasons articulated by the Florida Supreme Court when it adopted the exoneration rule, the Cira court held that a legal malpractice plaintiff must establish the final disposition of the underlying criminal case in his or her favor in addition to obtaining postconviction relief.
“We begin by noting that the relief available on the reversal of a conviction on direct appeal or on the entry of an order for postconviction relief is highly variable. A reversal of a conviction on appeal or a successful motion for postconviction relief may occasionally result in a dismissal of all pending charges. However, far more common results include the grant of a new trial or an order for resentencing. Following the grant of a new trial, the defendant may be acquitted or convicted again on the same or lesser charges after a second trial. In some instances, the prosecutor may decline to try the case again and nolle prosequi the charges. Or, as in this case, the defendant may plead nolo contendere or guilty to the same or lesser charges and be sentenced again. As a result, the consequences stemming from the reversal of a conviction on direct appeal or the entiy of an order for postconviction relief are often indeterminate. Absent an order of dismissal, the pending criminal charges cannot be finally disposed of until further proceedings are held.
“It follows that the reversal of a conviction on direct appeal or the entiy of an order for postconviction relief does not necessarily result in the exoneration of a criminal defendant. To ‘exonerate’ means ‘[t]o free from blame; to exculpate; also, to relieve from the blame or burden of; to relieve or set free from (blame, reproach).’ V The Oxford English Dictionary 548 (2d ed. 1989). The reversal of a conviction on direct appeal or the entry of an order for postconviction relief may occasionally-but will not generally-exculpate or free a defendant in a criminal case from blame. Exoneration will most often not occur, if at all, until further proceedings are held. Because of the variety of outcomes that may follow reversal of a conviction on appeal or the entry of an order for postconviction relief, we conclude that proof of appellate or postconviction relief, without more, is insufficient to satisfy the exoneration requirement. The legal malpractice plaintiff must also establish the final disposition of the underlying criminal case in his or her favor. This conclusion is consistent with the policy arguments our supreme court noted when it adopted the exoneration rule, specifically the argument that ‘without obtaining relief from the conviction or sentence, tire criminal defendant’s own actions must be presumed to be the proximate cause of the injury.’ [Citation omitted.]” Cira, 903 So. 2d at 371-72.
Of these two jurisdictions, one, Florida, also requires that a criminal defendant prove actual innocence as an element of any civil malpractice claim. See Schreiber v. Rowe, 814 So. 2d 396, 399 (Fla. 2002). And we note that courts in three other jurisdictions appear to link the concepts of exoneration and actual innocence. See Coscia v. McKenna & Cuneo, 25 Cal. 4th 1194, 1205, 108 Cal. Rptr. 2d 471, 25 P.3d 670 (2001) (relief in form of final disposition of criminal case prerequisite to exoneration, proving actual innocence); Britt v. Legal Aid Soc. Inc., 95 N.Y.2d 443, 448, 718 N.Y.S.2d 264, 741 N.E.2d 109 (2000) (only when “criminal proceeding has been terminated without conviction” can exoneration occur, innocence be asserted); Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex. 1995) (exoneration required, blended with need for proof of actual innocence). We address whether Kansas will follow the actual innocence rule in tire following section of our discussion below. Suffice it to say here that we reject equivalence between it and die concept of iegal exoneration in the same way that we reject equivalence between legal exoneration and moral purity.
The procedural history in a case from a third jurisdiction, Arizona, implies that exoneration must be final before it can give rise to a civil malpractice action. See Glaze v. Larsen, 207 Ariz. 26, 83 P.3d 26 (2004). In that case, the court had dismissed the criminal case against the defendant with prejudice, so there was no question that any finality requirement for the exoneration rule had been met. 207 Ariz. at 32. The court also observed that exoneration could be achieved through a variety of procedural mechanisms. 207 Ariz. at 32.
Meanwhile, courts in at least six other states—Alaska, Illinois, Minnesota, Nevada, Oregon, and Washington—have held that a court decision erasing a criminal conviction on the basis of ineffective assistance of counsel gives rise to legal exoneration and thus to accrual of the defendant’s civil malpractice claim against his or her lawyer. See Shaw v. State Dept of Admin., Pub. Defender Agency, 816 P.2d 1358, 1361 (Alaska 1991) (any postconviction relief equals exoneration; “[b]y adopting the date that [postconviction] relief is obtained as the trigger to tire statute of limitations, we establish a bright line test which should significantly assist courts”); Griffin v. Goldenhersh, 323 Ill. App. 3d 398, 407, 752 N.E.2d 1232 (2001) (legal malpractice claim accrued upon mandate of court reviewing ineffective assistance of counsel claim); Noske v. Friedberg, 656 N.W.2d 409, 414 (Minn. App.), aff'd 670 N.W.2d 740 (Minn. 2003) (date of conviction relief triggers accrual of malpractice action; desirable bright line rule undercut if made contingent on whether State decides to retry); Clark v. Robison, 113 Nev. 949, 951, 944 P.2d 788 (1997) (once relief from conviction granted, statute of limitations for legal malpractice claim begins to run); Stevens v. Bispham, 316 Or. 221, 239, 851 P.2d 556 (1993) (exoneration date the same as date conviction set aside by court on basis of another person’s confession); Falkner v. Foshaug, 108 Wash. App. 113, 118-19, 29 P.3d 771 (2001) (appellate court’s reversal of conviction on ineffective assistance grounds gave rise to legal malpractice action); see also Johnson v. Babcock, 206 Or. App. 217, 223-24, 136 P.3d 77, rev. denied 341 Or. 450, 143 P.2d 773 (2006) (grant of federal habeas relief after unsuccessful state post-conviction proceeding established exoneration date).
Three jurisdictions—New Hampshire, Tennessee, and Virginia—although they require exoneration before a legal malpractice action accrues, have not weighed in on the question of whether any relief from conviction must be absolutely and finally determinative of the underlying criminal case. See Therrien v. Sullivan, 153 N.H. 211, 216, 891 A.2d 560 (2006) (opinion unclear on whether accrual occurred at time of order of relief or at time State decided not to re-prosecute; mention of bright-line rule suggests order’s timing critical); Gibson v. Trant, 58 S.W.3d 103, 111 (Tenn. 2001) (adopting exoneration rule; because defendant had not obtained any type of postconviction relief, court did not outline particulars); Adkins v. Dixon, 253 Va. 275, 282, 482 S.E.2d 797 (1997) (case properly dismissed for failure to allege any form of postcon-viction relief; statute “does not begin to run until termination of the postconviction proceeding”).
And, finally, the Court of Appeals of Indiana has identified imperfection in all rules governing when adequate exoneration occurs for accrual of a malpractice action. In Silvers, the court observed:
“We also note that an attempt to establish an easy, bright-line test for determining tire accrual of the statute of limitations by requiring exoneration fails in its application. In particular, those states which require exoneration do not specify at what point a criminal defendant is exonerated: when he achieves successful post-conviction relief, when he is retried and a different result is achieved, or when he can no longer be retired for the same crime. To simply require successful post-conviction relief ignores the fact that a defendant may be retried and convicted of the same or a similar crime. Similarly, some defendants will never be retried and, therefore, will never obtain a different result. Finally, to prohibit a malpractice claim until a criminal defendant can no longer be tried for the crime would, among other problems, essentially deny relief for those previously convicted of murder, as murder has no statute of limitations.” 682 N.E.2d at 818.
Recognizing that perfect can be the enemy of good, we are reluctant to throw up our hands in defeat per Silvers. Rather, we are most persuaded by the opinions of the six jurisdictions that select the date of the court decision reversing or vacating a conviction as the point in time when exoneration occurs and the civil cause of action accrues. We also are influenced by the fact that at least two other jurisdictions have implied that they too would adopt a rule consistent with the six. As these courts have observed, this rule establishes as bright a line as is possible. No such bright line is discernible if exoneration and accrual are contingent on whether the State decides to continue or revive prosecution of the defendant, a decision that may be made promptly or never, depending on whether there is pressure from a statute of limitations. No such bright line is discernible if exoneration and accrual are dependent on whether a particular generation of prosecutors are willing to be forthcoming about their plans.
After careful consideration of the competing authorities from other states, we hold that a Kansas criminal defendant is “exonerated” for purposes of accrual of his or her civil legal malpractice claim against counsel on the date that a court grants relief from the conviction on the basis of ineffective assistance of counsel. That relief may come as the result of a K.S.A. 60-1507 motion or some other procedural mechanism in the district court or in one of the appellate courts.
Actual Innocence Rule
The last issue on this appeal arose in the motions for judgment on the pleadings filed by Sweet-McKinnon and Girard-Brady.
“A motion for judgment on the pleadings under 60-212(c), filed by a defendant, is based upon the premise that the moving party is entitled to judgment on the face of the pleadings themselves and tire basic question to be determined is whether, upon the admitted facts, the plaintiffs have stated a cause of action. [Citation omitted.] The motion serves as a means of disposing of the case without a trial where the total result of the pleadings frame the issues in such manner that the disposition of tire case is a matter of law on the facts alleged or admitted, leaving no real issue to be tried. [Citation omitted.] The motion operates as an admission by movant of all fact allegations in the opposing party’s pleadings. [Citations omitted.]” Clear Water Truck Co. v. M. Bruenger & Co., 214 Kan. 139, 140, 519 P.2d 682 (1974).
An appellate court’s review of whether the district court properly granted a motion for judgment on the pleadings is unlimited. Wagner v. State, 46 Kan. App. 2d 858, 860, 265 P.3d 577 (2011).
The district judge granted the individual defendants’ motions, ruling that Mashaney was required to prove actual innocence to prevail on his legal malpractice claim and that he would be unable to do so, given his Alford plea to charges different from those supporting his reversed convictions. The judge correctly recognized that Canaan “stopped short of deciding whether the exoneration must be accompanied by proof of actual innocence.” But he believed Kansas would join the ranks of those jurisdictions that require proof of actual innocence in malpractice lawsuits brought by dissatisfied criminal defense clients.
In Canaan, we identified the elements of a legal malpractice claim:
“ ‘(1) the duty of the attorney to exercise ordinary skill and knowledge, (2) a breach of that duty, (3) a causal connection between the breach of duty and the resulting injury, and (4) actual loss or damage.’ Bergstrom v. Noah, 266 Kan. 847, 874, 974 P.2d 531 (1999). In addition to those four elements, to prove legal malpractice in tire handling of litigation, a plaintiff must establish the validity of the underlying claim by showing that it would have resulted in a favorable judgment in the underlying lawsuit had it not been for the attorney’s error. Webb v. Pomeroy, 8 Kan. App. 2d 246, 249, 655 P.2d 465 (1982).” Canaan, 276 Kan. at 120.
The Court of Appeals majority in this case used examples to mark the distinction between the innocence required to be proved under the actual innocence rule and the legal exoneration required for accrual of the cause of action:
“[I]t may be clear that a defendant accused of murder intentionally took the victim’s life, but the defendant may have a jurisdictional defense based on the fact that the murder did not occur in the jurisdiction where the defendant was tried. The defendant may be exonerated by an appellate court setting aside the defendant’s conviction, and the criminal defendant can rightly claim that the outcome of the case would have been more favorable but for the attorney s negligence, but that hardly constitutes the establishment of actual innocence.
“Similarly, a criminal defendant may be caught red-handed in the midst of a burglary. But if the State is dilatory in prosecuting the action, the defendant may have an absolute defense under our speedy trial requirements. If defense counsel failed to raise die speedy trial defense, the criminal defendant may be exonerated when the court later sets aside the conviction because defense counsel was inef fective in not raising this defense. But this clearly does not establish that the defendant was innocent of the charge.” Mashaney, 49 Kan. App. 2d at 612.
The panel majority asserted that many of the policy reasons underlying the adoption of the exoneration rule in Canaan applied “equally to the adoption of an actual innocence requirement.” Mashaney, 49 Kan. App. 2d at 613. Those policies include:
“ ’equitable principles against shifting responsibility for the consequences of the criminal action; the paradoxical difficulties of awarding damages to a guilty person; theoretical and practical difficulties of proving causation; . . . preserving judicial economy by avoiding relitigation of settled matters; . . . availability of alternative postconviction remedies; and the chilling effect on thorough defense lawyering.’ ” 49 Kan. App. 2d at 613 (quoting Canaan, 276 Kan. at 123).
The panel majority then turned to cases outside of our jurisdiction that have adopted the actual innocence requirement. It used these authorities, the majority among those that have considered the question, to argue that sldllful representation may lead to an acquittal or a reduced sentence but that a guilty defendant has no right to such result. The panel majority also made the policy arguments that civil recovery should not become a tool to shift an individual’s responsibility for his or her criminal acts to counsel and that a guilty criminal defendant should not be permitted to recover a money judgment against a criminal defense lawyer that essentially compensates the defendant for the punishment imposed upon him or her for criminal conduct. Mashaney, 49 Kan. App. 2d at 613-16; see, e.g., Levine, 123 F.3d at 582 (7th Cir. 1997); Wiley v. County of San Diego, 19 Cal. 4th 532, 966 P. 2d 983, 79 Cal. Rptr. 2d 672 (1998).
The panel majority thus held that a criminal defendant must prove actual innocence in order to successfully bring a legal malpractice claim. 49 Kan. App. 2d at 616.
Judge Atcheson responded to the panel majority with a thorough, well-reasoned, and eloquent dissent, which we summarize and liberally quote as follows.
The dissent begins by observing that justifications offered in early caselaw for tire actual innocence rule “have been stated briefly and, for the most part, without much explanation.” Mashaney, 49 Kan. App. 2d at 623 (Atcheson, J., dissenting). Later caselaw has built upon that shaky foundation, “unreflectively reiterating]” the proposition that the actual innocence rule is necessary to promote good public policy. 49 Kan. App. 2d at 623 (Atcheson, J., dissenting).
Such an approach, as Judge Atcheson outlines, is no match for the complexities of a case such as this.
“Mashaney’s circumstances present two complicating factors. First, the underlying sex crime charged, if true, would be especially repugnant. Though not explicitly stated in the caselaw, the courts adopting an actual innocence rule seem to recoil at the notion a person who may have committed a heinous offense ought to be able to bring a civil action for legal malpractice. But a person’s moral culpability for bad acts typicaEy does not otherwise extinguish the legal liability of professionals providing substandard services to that person, even when those acts necessitate the services. Second, after being granted a new criminal trial, Mas-haney entered an Alford plea to less serious (and less repugnant sounding) felony charges for the same alleged conduct and was adjudged guilty. How to factor that plea into his legal malpractice action with or without an actual innocence rule isn’t easy.
“Those complexities are redoubled because the essential legal requirements for criminal defendants to successfully sue their lawyers for malpractice extend beyond this case and must foster fair results in different cases. That is, the rule laid down here will govern the cause of action generally. As the majority suggests, it may be next to impossible to fashion requirements achieving that objective for every permutation. But including actual innocence as a criteiion ill serves basic fairness in that persons who have served lengthy prison sentences as a direct result of their lawyers’ negligence will be deprived of any tort remedy for that malpractice and some lawyers representing criminal defendants will escape liability when their civil counterparts would not.
“In short, the actual innocence rule detrimentally distorts the law in ways disadvantaging criminal defendants suffering tangible harm because of their lawyers’ incompetence, leaving injuries unredressed that the tort system would otherwise compensate. Rejecting that rule would better serve the true public policies embodied in the criminal justice process and in civil tort law. The requirement adopted in Canaan v. Bartee, 276 Kan. 116, 131-32, 72 P.3d 911 (2003), that criminal defendants obtain relief under K.S.A. 60-1507 before filing legal malpractice actions—thereby establishing both that their lawyers had provided representation falling below the constitutional standard of adequacy and that they had been materially prejudiced as a result—sufficiently guards the public interest in keeping plainly undeserving litigants from clogging tire civil system wdth frivolous suits.” Mashaney, 49 Kan. App. 2d at 623-24 (Atcheson, J., dissenting).
Judge Atcheson elaborates on his distortion point:
“The actual innocence rule adds an element to a malpractice claim against a criminal defense lawyer that has no direct counterpart when the claim arises from failed civil litigation. And it materially recasts the ‘favorable judgment’ standard to substantially disadvantage criminal defendants suing their former lawyers.
“The distorting effects may be better illustrated in an example uncluttered by Mashaney’s Alford plea. I offer that example as the model for discussing the phony public policy interests cited in favor of an actual innocence rule. I then look at variations on that paradigm, including the circumstances Mashaneypresents. Suppose a jury convicts a defendant of robbeiy for punching the victim and grabbing his or her iPod, and tire judge imposes a midrange guidelines sentence of 120 months in prison because the defendant already had two convictions for felony theft. This court affirms the robbery conviction on direct appeal. The Kansas Supreme Court denies the defendant’s request for review. The defendant tiren files a 60-1507 motion collaterally attacking the conviction based on the ineffective assistance of trial counsel. The district court denies the motion, and the defendant appeals. This court finds tire lawyer was constitutionally deficient in a way that prejudiced the defendant’s right to a fair trial and grants the defendant a new trial. In due course, the Kansas Supreme Court denies the State’s petition for review. By that time, the defendant probably has been in prison for more tiran 60 months or 5 years—a fairly conservative estimate. The defendant again goes to trial on the robbery charge with a different lawyer. The jury finds him not guilty, and he is released from custody. The defendant then sues the lawyer who represented him in tire first trial for legal malpractice.
“In that scenario, the criminal defendant enters the legal malpractice action having shown to the satisfaction of the courts in the 60-1507 proceeding that his lawyer breached a constitutional duty of adequate representation and, in so doing, rendered the first criminal trial fundamentally unfair and having secured in the second criminal trial a jury verdict of not guilty. So in the second trial, the criminal defendant arguably received tire favorable judgment he should have received in the first trial. Had the criminal defendant been acquitted in the first trial, he would not have spent 5 years in prison. By any reasonable definition, 5 years of wrongful imprisonment looks to be an injury or harm. •
“Under the traditional elements of a legal malpractice action, that criminal defendant ought to get a day in court to prove a civil claim for damages against the lawyer representing him in tire first trial. Whether tire criminal defendant would prevail or not is another matter. The actual innocence rule, however, imposes an extraordinary legal hurdle that would defeat many claims at the pleading stage or on summary judgment and likely would keep many others from being filed at all. Even at trial, the rule would impose a formidable barrier to otherwise meritorious claims. Proving actual innocence is far different from and far more difficult than showing that a criminal defendant would have been found not guilty—the ultimate ‘favorable judgment’ in a criminal case. The courts adopting the rule invoke a variety of public policy interests to justify that barrier.
“Although courts are not to examine the wisdom of the policy consideratipns animating statutes, since that would impermissibly intrude upon the province of the legislature, they should explain themselves when they invoke policy in fashioning common-law rights and duties. Because the actual innocence rule alters a common-law cause of action—a judicially created claim for professional negligence—the courts adopting it in tire name of public policy have an obligation to clearly state in a fairly comprehensive manner their reasoning. The failure to do so both abdicates judicial responsibility and obscures the rationale behind the policy, rendering its wisdom suspect.” Mashaney, 49 Kan. App. 2d at 625-27.
Judge Atcheson then turns to the public policy often identified as furthered by the actual innocence rule and disassembles it. He begins his five-pronged attack with the often-repeated idea that a criminal defendant has no right to an acquittal.
“A panel of the United States Court of Appeals for the Seventh Circuit laid down a cornerstone argument for the actual innocence rule in Levine, so I begin there. The panel reasoned that a criminal defendant who is, in fact, guilty has no right’ to an acquittal in a criminal prosecution and, therefore, can assert no ‘legally protected interest’ compromised in his or her loss of liberty upon conviction. Levine, 123 F.3d at 582. In turn, that defendant cannot base a legal malpractice claim on the incompetence of his or her lawyer, even if that poor representation rendered the trial unfair and the verdict vulnerable on collateral attack. The criminal defendant’s resulting incarceration would not be a compensable injury. According to the Levine panel, a criminal defendant bringing a legal malpractice claim must prove he or she is factually innocent to establish the incompetent trial lawyer breached a protected duty and caused actionable harm. 123 F.3d at 582-83. The premise is wrong and the reasoning misguided.
“A criminal defendant has a fundamental right to be proven guilty beyond a reasonable doubt grounded in the due process protections of the Fifth and Fourteenth Amendments to the United States Constitution. Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994); Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993); In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). And if the government fails to meet that burden in a given prosecution, the defendant should go free. The right belongs to anyone charged with a crime—guilty or innocent. See 397 U.S. at 363 (’The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure.’); 397 U.S. at 364 (’[W]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute tire crime with which he is charged.’). So to say someone who actually has committed a crime has no right to be found not guilty if the government fails to establish guilt beyond a reasonable doubt is simply incorrect.
“By the same token, criminal defense lawyers owe a duty to their clients to hold the government to its burden of proof and to test the government’s case to highlight reasons jurors might doubt the evidence satisfies that constitutional standard. Those lawyers owe a qualitatively indistinguishable performance of that duty to clients drey know or suspect are guilty and to clients they know or suspect are innocent. An incompetent performance is no less so because it has been rendered in the service of a defendant who may, in fact, be guilty. In any given case, the lawyer’s breach of that duty can result in the conviction and imprisonment of someone who ought to have been acquitted. At least under the standard rules for legal malpractice suits, the client would have an actionable claim against the lawyer for the harm caused by that outcome, including die period of incarceration.
“Incorporating an actual innocence element into criminal malpractice claims doesn’t directly alter those principles. The rule simply divides the factually guilty from die actually innocent for purposes of bringing malpractice claims when tiiey are odierwise similarly situated legally—both had a right to an acquittal in the criminal action if the government could not marshal sufficient evidence to convict, and both were owed a duty of competent representation by their lawyers. And both could otherwise seek damages in malpractice actions when the breach of that duty resulted in an unfair criminal trial, an improper conviction, and a loss of liberty.
“Tort law provides a remedy—typically money damages—to Jones when Smith invades a statutory or common-law right of Jones or violates a statutory or common-law duty owed Jones, thereby causing injury to Jones. See Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 269, 261 P.3d 943 (2011). In professional neghgence actions, die moral blameworthiness of the injured party seeking relief doesn’t bar a claim. Thus, a person shot by pohce while robbing a bank may bring a medical malpractice action against the surgeon negligently removing the bullet rendering that person a paraplegic. The physician’s duty of care isn’t legally reduced or extinguished because the patient came to be injured through his or her own fault or criminal wrongdoing.
“But the actual innocence rule injects moral blame into legal malpractice law with odd results. For example, a person gets in a fight outside a bar and hits and seriously injures another patron. The person is prosecuted for intentional aggravated batteiy, and the victim sues civilly for damages. So the person hires one lawyer to defend him in the criminal prosecution and a second lawyer to handle the civil suit. Each performs horrendously. The civil defense lawyer fails to assert a winning statute of limitations argument based on the 1-year period for bringing battery actions, and the jury returns a judgment in the mid-six figures. See K.S.A. 60-514(b). The criminal defense lawyer doesn’t file a motion to suppress his client’s highly incriminating statements given to a detective in a custodial interrogation without Miranda warnings. When the State can’t find the only independent witness to the fight, those statements become the decisive part of the prosecution case at trial, given the victim’s shaky identification. The jury convicts, and the individual receives a 41-month sentence. He loses his direct appeal but has the conviction set aside on habeas review. In the retrial, with [a] new lawyer and without the incriminating statements, he is found not guilty.
“With an actual innocence rule in place, the individual could sue his civil lawyer for malpractice and, in this scenario, likely win, recovering the amount of the judgment entered against him. But he would not have a viable claim against his criminal defense lawyer for damages based on the time he spent in prison. The result is, as I have said, peculiar in creating markedly different malpractice standards for civil practitioners and criminal practitioners. In the example, the client is equally blameworthy in both the civil and criminal cases. Yet, moral blameworthiness (lack of proof of actual innocence) would extinguish the criminal malpractice action but not the civil one. The rule effectively diminishes the potential liability of criminal defense lawyers even though they are duty-bound to protect their clients’ liberty interests, something that typically would be viewed as more valuable than the money damages commonly at stake in civil proceedings.
“More peculiarly, perhaps, the rule also divides criminal defense practitioners for malpractice purposes based not on fulfillment of their legal duties but on the culpability of their clients. With an actual innocence rule, a criminal defense lawyer representing a guilty client is essentially granted immunity from civil liability for even the most egregious errors. Critics of the rule point out the illogic of that division, see Wiley, 19 Cal. 4th at 547-48 (Mosk, J., dissenting), and at least some proponents of the rule acknowledge it, see Glenn v. Aiken, 409 Mass. 699, 705, 569 N.E.2d 783 (1991).
“Some, if not many, actually innocent criminal defendants would be unable to affirmatively prove dieir innocence by a preponderance of evidence in a malpractice action. They, too, would be deprived of a civil remedy for demonstrable lawyer incompetence leading to legally improper convictions. Similarly, depending on how ‘actual innocence’ is construed, a criminal defendant convicted of a serious offense would be deprived of a civil remedy even though competent counsel would have effectively marshaled evidence likely producing a conviction for a substantially lesser offense and a significantly shorter period of incarceration. The West Virginia Supreme Court recently held that in a legal malpractice action, the criminal defendant must prove his or her actual innocence not only of the crime charged but any lesser offenses. Humphries, 227 W. Va. at 633. For example, a criminal defendant convicted of first-degree murder in Kansas receives a fife sentence with no consideration for release for at least 25 years. If, however, a competently presented defense likely would have yielded a conviction for involuntary manslaughter based on a self-defense theory, a defendant with a clean record ought to receive a standard grid sentence of 32 months and would be a border-box candidate for probation. See State v. O’Rear, 293 Kan. 892, 901, 270 P.3d 1127 (2012) (unintentional killing resulting from use of excessive force in otherwise lawful act of self-defense constitutes involuntary manslaughter rather than murder); State v. Pennington, 43 Kan. App. 2d 446, 461, 227 P.3d 978 (2010). But that person would have no civil cause of action against the criminal defense lawyer whose incompetence led to his or her incarceration for years during the appellate challenges to the wrongful murder conviction.” Mashaney, 49 Kan. App. 2d 627-31 (Atcheson, J., dissenting).
Second, Judge Atcheson rejects the assertion that differences between the civil and criminal justice systems support the actual innocence rule.
“Some proponents of the actual innocence rule argue the differences between the civil and criminal justice processes commend the rule. See Wiley, 19 Cal. 4th at 541-44. Again, the notion is misguided and gives short shrift to the individualized duty criminal defense lawyers owe their clients.
“The criminal justice system protects broad societal interests in punishing individuals who violate statutory proscriptions against violent and otherwise especially deleterious behavior. The criminal, thus, inflicts an injury on the citizenry as a whole to be redressed with punitive sanctions, often including incarceration. Hence, a criminal case goes forward at the direction of and in the name of the government, and the individual victims directly harmed cannot call off diat prosecution. Conversely, the civil justice system largely aims to vindicate individual rights by providing mechanisms to remedy breaches of contractual arrangements and to award compensation for commercial wrongs and physical injuries. Civil law is concerned with compensatory relief, not punishment. Given those differing objectives, the California Supreme Court, for example, has suggested it is simply unjust’ to allow a factually guilty criminal defendant to bring a malpractice claim against his or her lawyer. Wiley, 19 Cal. 4th at 539 (’While a conviction predicated on incompetence may be erroneous, it is not unjust.’). But that confuses the overarching purpose of the criminal courts with the much narrower duty at issue in any legal malpractice claim—die obligation of the lawyer to provide competent representation to his or her client. Ultimately, that obligation is a personal one between lawyer and client, die violation of which historically gives rise to civil liability if the professional incompetence results in harm. As I have said, that personal duty binds a criminal defense lawyer to his or her client regardless of the client’s guilt or innocence. Accordingly, tort law ought to afford a remedy for a violation of drat particularized duty whether the lawyer’s dereliction inflicts an injury in a criminal prosecution or a civil case.
“Advocates for an actual innocence element point out that the civil judicial process simply does not grant new trials to parties incurring bad results because of their lawyers’ negligence. Their sole remedy lies in malpractice actions against those lawyers for money damages. But that seems to border on a non sequitur in arguing for an actual innocence requirement. A criminal defendant’s right to a new trial based on lawyer incompetence vindicates a societal interest in depriving a person of liberty only if he or she has had a fair trial and, in doing so, protects a constellation of constitutional rights bound up in that process. No similarly compelling systemic interest attaches to civil proceedings because no similarly compelling interest—liberty—may be lost in an adverse civil judgment.
“They also say that a new trial affords criminal defendants sufficient relief for lawyer malpractice unless those defendants can prove their actual innocence. See Wiley, 19 Cal. 4th at 542; Mahoney v. Shaheen, Cappiello, Stein & Gordon, 143 N.H. 491, 496, 727 A.2d 996 (1999). But neither the societal interest in punishing only those criminal defendants receiving fair trials nor the availability of a 60-1507 remedy furthering that interest offers full relief for breach of the personal duty a lawyer owes a client—the actual interest directly at issue in a professional negligence case. A complete tort remedy for the violation of a lawyer’s duty to a criminal defendant client resulting in an unfair trial and an unwarranted conviction entails compensation for the deprivation of liberty between the conviction and its reversal. The remedy for that harm can only come through a legal malpractice action against the lawyer whose incompetence led to the conviction. The traditional elements for malpractice actions appropriately afford that remedy, since the duty, the breach, and the harm befall the criminal defendant without regard to guilt or actual innocence.” Mashaney, 49 Kan. App. 2d at 631-32 (Atcheson, J., dissenting).
Third, Judge Atcheson outlines the way in which the actual innocence rule rests upon an erroneous understanding of tort law.
“The advocates for an actual innocence rule invoke ‘but for’ causation to deprive criminal defendants of any relief in legal malpractice actions. See, e.g., Wiley, 19 Cal. 4th at 540. In other words, unless the defendant is truly innocent, the root cause of his or her incarceration is the commission of the criminal act rather than the incompetent lawyering leading to the guilty verdict. The reasoning, however, rests on a rigid application of but for causation inconsistent with general tort law principles. Tort law looks to proximate cause to impose liability so that a later negligent act may supersede earlier wrongful conduct in establishing compensable fault. See Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 420-21, 228 P.3d 1048 (2010). In a tort action, the injured party (here, the convicted criminal defendant) must show that ‘but for’ the conduct of the party breaching the duty owed (here, the incompetent criminal defense lawyer) the actionable harm (here, the incarceration) would not have occurred. 290 Kan. at 420. That reflects a determination of proximate cause. If the lawyer handling the criminal case fails to demonstrate the State’s inability to prove guilt beyond a reasonable doubt when a competent lawyer could have and would have done so, the client has been legally injured by being convicted and imprisoned. That is true whether the client was actually innocent or not. The client’s guilt did not bring about or cause the harm, and the harm would have befallen an actually innocent person in the same circumstances. So the client’s commission of a crime is not really a direct cause of the legal injuiy. The other aspect of proximate cause requires that the harm be a foreseeable consequence or result of the negligent conduct. 290 Kan. at 421. That is a given here. Plainly, a criminal defense lawyer can foresee that a product of his or her incompetent representation may be the conviction of the client despite the State’s inadequate evidence.
“As I have already suggested, professional negligence actions typically conform to that model. Skilled professionals are not immunized against tire consequences of negligent performance of their duties simply because parties obtain those services as the result of their own negligent conduct or intentional wrongdoing. Tort law carves out no such exception for physicians or lawyers representing clients in civil actions. Creating an exception for criminal defense lawyers with guilty clients seems analytically arbitrary, reflecting not so much a sound application of tort law as a deviation from it to prevent a class of disfavored individuals from pursuing legal malpractice claims.
“The advocates for an actual innocence rule argue that without it, guilty criminal defendants would profit from their own wrongs if they can successfully sue their lawyers for malpractice. Wiley, 19 Cal. 4th at 537-38; Mahoney, 143 N.H. at 496. The law acknowledges an aphorism that a party should not benefit from his or her own wrongful conduct. And it may be invoked in all sorts of contexts. See Giles v. California, 554 U.S. 353, 365-68, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008) (noting maxim in discussing relaxation of rules on admission of out-of-court statements when party has deliberately procured the absence of an adverse witness); McCaffree Financial Corp. v. Nunnink, 18 Kan. App. 2d 40, 55-56, 847 P.2d 1321 (1993) (noting maxim but declining to apply it to prevent defendant from asserting statute of limitations bar to plaintiff s suit for misuse of trade secrets); Estate of Amaro v. City of Oakland, 653 F.3d 808, 813 (9th Cir. 2011) (relating maxim to equitable estoppel and fraudulent concealment). But jurisprudence resting on generic sayings is distinctly airy, as this argument illustrates.
“A criminal defendant successfully suing his or her lawyer for negligence based on a conviction and the resulting incarceration isn’t profiting from his or her underlying crime. He or she is being compensated for a legal injury—a loss of liberty—directly resulting from the lawyer’s malpractice in failing to obtain a favorable result for the client in the criminal prosecution. That’s not profiting any more than a person injured in a motor vehicle collision profits’ from a damage award for the harm he or she has suffered. By contrast, Henry Hill quite arguably profited from his crimes to the extent he was paid for assisting in the preparation of “Wiseguy: Life in a Mafia Family,’ a biography about his mob career, and its cinematic dramatization in ‘Goodfellas.’ See Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991).
“Proponents of the rule contend that private lawyers will not take on paying clients accused of crimes or agree to serve on panels providing representation to indigent criminal defendants without tire protection of an actual innocence rule. Glenn, 409 Mass. at 707-08; Mahoney, 143 N.H. at 496. They say the risk and consequences of malpractice actions from disaffected criminal clients would drive away lawyers. The fear is wholly speculative and entirely unsupported with any empirical data. If tire concern were real, I would expect to see too few lawyers handling criminal cases in those states that treat criminal and civil malpractice actions the same, such as Indiana and Ohio. See Godby v. Whitehead, 837 N.E.2d 146, 151 (Ind. App. 2005); Krahn v. Kinney, 43 Ohio St. 3d 103, 105, 538 N.E.2d 1058 (1989). But the crisis does not appear to have materialized.
“Moreover, Kansas, among other states, requires that a criminal defendant [be legally exonerated] before even filing a legal malpractice action. Canaan, 276 Kan. at 132. The criminal defendant, therefore, must effectively prove to a court that his or her lawyer performed incompetently and that incompetence rendered the criminal case and resulting conviction demonstrably unfair. See Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468 (1985). In fiscal 2012, for example, the Kansas district courts granted relief to less than 4 percent of die convicts challenging dieir convictions through 60-1507 motions. See Annual Report of the Courts of Kansas for Fiscal Year 2012, at 4 (2013). That effectively precludes convicted criminal defendants from pursuing malpractice claims based on insubstantial allegations of incompetent legal representation. A criminal defendant filing a legal malpractice action without having secured relief on a 60-1507 motion would face prompt dismissal on a motion on the pleadings. See K.S.A. 60-212(b)(6), (c). An actual innocence rule, therefore, is unnecessary to combat a doubtful plague of frivolous criminal malpractice actions.” Mashaney, 49 Kan. App. 2d at 633-35 (Atcheson, J., dissenting).
Fourth, Judge Atcheson persuasively contends that the actual innocence rule would not simplify malpractice litigation.
“Courts favoring an actual innocence element in criminal malpractice actions, notably the California Supreme Court in Wiley, suggest those cases would otherwise be exceptionally difficult to adjudicate. Although legal malpractice actions arising out of criminal prosecutions present some challenging litigation issues, as I discuss, an actual innocence rule doesn’t directiy resolve diose challenges for the most part. They persist in any given malpractice action. With an actual innocence rule in place, diere simply will be fewer malpractice actions litigated.
“Without an actual innocence element, jurors hearing die malpractice action presumably would first consider whether the criminal defense lawyer’s representation fell below the required standard of professional competence. If so, they would then have to decide causation. On that score, die Wiley court suggests those jurors essentially would be instructed to determine by a preponderance of die evidence whether but for the lawyer’s incompetence die jury in the criminal case would have found the defendant guilty beyond a reasonable doubt. 19 Cal. 4th at 544. The verbiage might vary some in an actual jury instruction, and the operative legal concepts would be explained. But diat more or less seems to capture the issue. The Wiley court concluded jurors would be utterly flummoxed: ‘The mental gymnastics required to reach an intelligent verdict would be difficult to comprehend much less execute.’ 19 Cal. 4di at 544.1 don’t share the California Supreme Court’s dim view of jurors’ acuity individually or collectively as a deliberative body. Courts commonly entrust immensely complex issues to jurors, as antitrust or groundwater contamination suits illustrate. See MTBE Products Liability Litigation, 725 F.3d 65, 78-80 (2d Cir. 2013) (groundwater contamination); Deutscher Tennis Bund v. ATP Tour, Inc., 610 F.3d 820, 824 (3d Cir. 2010) (antitrust); In re Scrap Metal Antitrust Litigation, 527 F.3d 517, 532-34 (6th Cir. 2008) (antitrust).
“The principal complicating factor, according to the Wiley court, lies in the differing burdens of proof at play in the malpractice action. 19 Cal. 4th at 544. The malpractice jurors would have to find the controlling facts to be more probably true than not true. One of those facts entails whether the jury in the criminal case would have found guilt beyond a reasonable doubt had the defense lawyering been competent. The same problem arises in civil malpractice cases in which the cause of action allegedly lost in the original suit required proof by clear and convincing evidence, such as a fraud claim or willful or wanton conduct necessary for punitive damages. See Kelly v. VinZant, 287 Kan. 509, 515, 197 P.3d 803 (2008) (fraud); K.S.A. 60-3702 (punitive damages).
“Moreover, adding an actual innocence element to criminal malpractice claims would not affect the formulation of the causation issue at all. Actual innocence would impose a gatekeeper element jurors would have to resolve before getting to either breach of the standard of care or causation. Jurors presumably would be instructed that if they found the criminal defendant failed to establish actual innocence, they should return a verdict for the lawyer without addressing any other aspects of the case. If they found the criminal defendant to be actually innocent, they would then have to consider the causation issue—formulated just as it would have been in the absence of an actual innocence element.
“The Wiley court also suggested that damages would be difficult to assess in a criminal malpractice action and termed the task ‘perplexing.’ 19 Cal. 4th at 543. The injury principally entails an extended period of incarceration. A criminal defendant otherwise employable might have lost income, but the primary injuiy is the loss of liberty and the attendant noneconomic damages. The collective wisdom of 12 jurors would be especially insightful in rendering fair compensation for that sort of loss. See Domann v. Pence, 183 Kan. 135, 141, 325 P.2d 321 (1958).
“The Wiley court also incorrectly reasoned drat civil malpractice actions are much easier to resolve than criminal malpractice actions because die injured parties seek money damages equivalent to the money damages they should have received in the underlying civil suits lost through the lawyers’ negligence. But, of course, the harm in the underlying civil suit may well have involved personal injuries, including pain and suffering and odier noneconomic damages, that prove no more easily quantifiable than a loss of liberty. The jury rendering a plaintiffs verdict in a malpractice action would have to make some evaluation of the reasonable damages in die underlying case to fashion an award. And juries hearing other tort actions routinely determine monetary damages to compensate for no- neconomic injuries—not just for direct financial losses. The argument about the difficulty in assessing damages is a phony one. More to the point here, an actual innocence rule wouldn’t materially alter die jurors’ task in translating a wrongful loss of liberty into a dollar amount reflecting fair compensation.” Mashaney, 49 Kan. App. 2d at 636-38 (Atcheson, J., dissenting).
Finally, Judge Atcheson argues that the actual innocence rule would fail to achieve its stated purposes.
“Caterwauling aside, the actual innocence rule neither advances substantial public policy objectives rooted in legal doctrine nor facilitates the resolution of malpractice claims against criminal defense lawyers based on the existing tort law. Rather, it simply reflects a value judgment that a group of criminal defendants— those who may have committed offenses—should be deprived of a civil remedy against their lawyers when a given lawyer’s abysmal performance resulted in a given defendant’s conviction and incarceration. As I have outlined, criminal defendants regardless of guilt or innocence have a right to competent legal representation. Lawyers have a correlative duty to provide that level of representation to their clients. And the judicial process should afford those clients, regardless of guilt or innocence, the opportunity for full recompense if a violation of that right and duty results in their conviction and incarceration. The actual innocence rule denies one segment of the community of criminal defendants a remedy afforded the rest of that community essentially based on a characteristic unconnected to the right being vindicated.” Mashaney, 49 Kan. App. 2d at 638 (Atcheson, J., dissenting).
We agree with tire above-summarized and quoted portions of Judge Atcheson’s dissent; we reject the actual innocence rule in Kansas. We also agree with him that the Sixth Amendment-based ineffective assistance of counsel standard a criminal defendant must meet to surpass the exoneration threshold for accrual of a legal malpractice action “probably forgives more bad lawyering than the professional negligence standard governing malpractice actions.” 49 Kan. App. 2d at 639 (Atcheson, J., dissenting). But that is neither here nor there in Mashaney’s case. The fact is drat he did meet the exoneration threshold on April 11, 2011. His malpractice action accrued on that date, and he timely filed it within the 2-year statute of limitations. His later Alford plea to other charges did not automatically bar his lawsuit under the actual innocence rule.
As Judge Atcheson alludes to still later in his dissent, Mashaney s plea, the factual predicate for it, the time he served on the original convictions versus the sentence imposed after the plea, and other factors may pose proof challenges for him on the traditional elements of the tort of legal malpractice. But any strength or weakness of that type was not amenable to decision as a matter of law on the motions filed by Sweet-McKinnon and Girard-Brady. On the record before us today, we must reverse the panel majority’s and the district judge’s decisions to dismiss Mashaney’s claims against the individual defendants and remand them to the district court for further proceedings.
One final note bears mention: A Court of Appeals judge writing in dissent enjoys more freedom than this court to discuss what, in his view, should happen as a matter of law in a given case if his position were to win a majority and a desired remand granted. We are not so free. See State v. Soto, 299 Kan. 102, 129, 322 P.3d 334 (2014) (declining to issue advisory opinion on issue not yet ripe; noting Kansas appellate courts generally do not render advisory opinions). Thus we deliberately do not engage in such further discussion here, awaiting a- future case in which süch questions arise on an adequate record.
Conclusion
Defendant Board of Indigents’ Defense Services is not subject to suit in a legal malpractice action, and the decision of the district court judge dismissing it from this case is affirmed. The Court of Appeals decision affirming the district court on that point is affirmed. The district court judge’s decision dismissing the individual defendants, Sarah E. Sweet-McKinnon and Virginia A. Girard-Brady, is reversed, and the Court of Appeals panel majority’s decision affirming that dismissal is reversed. Kansas does not require a legal malpractice plaintiff who bases his or her claim on ineffective assistance of counsel in a criminal case to prove actual innocence of the charged crimes. This case is remanded to the district court for further proceedings. | [
-112,
-24,
-83,
-99,
11,
96,
32,
28,
83,
-61,
39,
83,
-81,
-50,
5,
107,
-77,
41,
84,
112,
-47,
-73,
23,
-31,
-26,
-13,
-37,
85,
-69,
-49,
-26,
-12,
76,
112,
-62,
-11,
70,
-54,
-107,
82,
-118,
5,
-72,
-52,
-48,
-127,
36,
58,
112,
7,
49,
28,
-13,
41,
50,
-53,
-23,
40,
91,
57,
80,
17,
-110,
-123,
125,
0,
-93,
36,
28,
67,
120,
38,
-100,
-72,
1,
-24,
112,
-106,
-126,
100,
75,
41,
72,
102,
98,
1,
-99,
-1,
-23,
-80,
62,
95,
29,
-89,
-7,
105,
104,
-120,
-105,
-67,
113,
28,
-90,
-8,
-21,
-44,
31,
108,
8,
-113,
-112,
-77,
-49,
116,
-34,
-102,
-17,
37,
-112,
113,
-35,
112,
92,
-41,
50,
-41,
-66,
-106
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied. ..
Unpublished | [
29,
105,
77,
62,
-88,
-79,
49,
62,
82,
-113,
103,
119,
-49,
-30,
-116,
-39,
-83,
103,
-76,
91,
79,
18,
127,
-27,
98,
-37,
-94,
-11,
113,
111,
-6,
56,
76,
56,
-102,
69,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-112,
-63,
36,
35,
72,
15,
17,
-44,
-15,
-114,
30,
65,
-64,
102,
-59,
-83,
-62,
-35,
-111,
23,
-65,
84,
-64,
85,
-48,
73,
-64,
110,
20,
-80,
37,
-24,
114,
102,
-121,
85,
15,
-7,
-76,
32,
10,
32,
-84,
-19,
40,
-68,
79,
94,
45,
-124,
-5,
40,
75,
121,
-101,
-3,
0,
-43,
39,
56,
34,
-124,
47,
-88,
46,
-17,
-28,
-93,
31,
40,
12,
9,
-13,
-10,
16,
53,
-49,
-9,
-52,
-78,
53,
-102,
-122,
52
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
The opinion of the court was delivered by
LUCKERT, J.:
Defendant Misty D. Tague appeals her jury trial convictions for felony murder, in violation of K.S.A. 21-3401(b), and aggravated robbeiy, in violation of K.S.A. 21-3427. She raises five issues in her brief and a sixth issue in a letter of additional authority under Supreme Court Rule 6.09(b) (2012 Kan. Ct. R. Annot. 49). The six issues are: (1) Did the trial judge err in excluding hearsay evidence relating to eyewitnesses who were unable to identify Tague in a photographic lineup? (2) Did the trial judge err in admitting Tague’s out-of-court incriminating statements made to her best friend? (3) Did the trial judge err in admitting certain autopsy photographs at trial? (4) Did the trial judge abuse his discretion in not allowing defense counsel to cross-examine Ta-gue’s best friend, who was a witness for the State, regarding the friend’s involvement in drug sales? (5) Did the trial judge err by giving an aiding and abetting instruction to the juiy? and (6) Did the trial judge err in failing to give lesser included offense instructions?
We conclude the first, second, and sixth issues were not properly preserved or presented for review. Further, we hold that the trial judge did not abuse his discretion in admitting the autopsy photographs or in excluding evidence regarding the witness’ involvement in drug sales. Finally, we conclude the trial judge did not err in giving the pattern jury instruction regarding aiding and abetting the commission of a crime. Consequently, we affirm.
Facts and Procedural Background
Tague’s convictions stem from events that took place at a motel room in Sedgwick County on October 25, 2007. Around 1:22 a.m., law enforcement received a 911 call placed by a woman indicating her boyfriend had been shot. When officers arrived at the motel room, there were two women, Starrie Cross and Alexis Green, and two men, Michael Davidson and Titus Franklin, present. Franklin had been shot and was lying on the floor, cradled in Green’s arms. According to Green, a white male and a white female knocked on the door and then pushed their way into tire motel room. The male perpetrator told the occupants to “get down” and demanded money. Shots were fired, and the perpetrators rifled through dresser drawers and gathered money and drugs from the room. When questioned at the scene, Green provided a physical description of the assailants. Later, officers showed photo lineups to Green, who identified Tague and Leslie “Countiy” Keith, Jr., as the perpetrators. Keith eventually confessed to committing the crimes and initially told officers that Tague was his accomplice in the motel room. But at trial, Keith changed his story and testified that another woman, named “Pepper,” was his partner in crime.
While interviewing Green at die crime scené, the 'law enforcement officers learned that just before the shooting a Hispanic male identified by Green as “Javier” had knocked on the door and had been allowed to come into the motel room. He was there to participate in a drug transaction involving crack cocaine. Once inside, Javier told the others that two people were standing outside by the soda machine. Before Javier could leave, Tague and Keith entered the motel room. Green indicated that Javier was not involved in the robbery.
After Tague and Keith left, Green realized her boyfriend, Franklin, had been shot and called 911. Franklin was shot twice, once in the left thigh and once in the right hip/buttock, and his injuries proved to be fatal. At trial, a criminologist and firearms examiner testified that all the spent shell casings collected from the motel room were fired from the same gun, consistent with a 9 mm. weapon.
Tague’s best friend, Miranda Maupin, testified at trial for the State, over defense counsel’s objections, about statements Tague had made to her after the incident. According to Maupin, Tague told her that “Country” shot somebody, that he was “in a lot of trouble,” and that he had left town. Maupin testified that Tague was “freaking out for a long time.” Tague told Maupin that “nobody had to die, that she didn’t have anything to do with it, and that Country was . . . trying to prove he was hard and he didn’t have to do that and she was really sad.”
Testimony from other witnesses in the case indicated that Tague had told Maupin more details than Maupin had provided during her ■ trial testimony. During .a telephone conversation with a Sedgwick County Deputy Sheriff, Maupin told the deputy that Tague had admitted to being involved in a homicide with three other individuals—“Country,” Dominic Myers, and Tague’s brother, Travis Tague. The deputy relayed this information to the Wichita Police Department; which led Detective Thomas Fatldn to interview Maupin. During this interview, Maupin said that Tague had told her she . was with “Country” when the-murder and robbery took place. Travis and Myers went along but stayed in the van. Tague told Maupin that she and “Country” went into a motel room with guns pointed and the victim was shot by “Country” when the victim reached for a gun. Maupin also told the detective the group used Myers’ work van as the getaway vehicle.
Keith, a/k/a “Country,” was the only witness for the defense. His original version of events—relayed during his interrogation by Detective F atkin—was consistent with the version Tague conveyed to Maupin. Keith acknowledged during his trial testimony that he had told Detective Fatkin that Tague, Travis, and Myers were involved in the crimes. But at trial, Keith claimed that he implicated those three individuals because he thought Tague told officers about Keith’s involvement in the crimes. Keith testified that “[i]f somebody was snitching on me I was taking them with me.” Keith said he had been motivated by revenge, but when he found out that Tague had not spoken to officers about him, he told his lawyer that he had committed the crimes not with Tague, but with a woman he only knew as “Pepper.” He claimed Tague knew about the crimes only because he told her about them. According to Keith, Pepper went to some dude and got a van to use in the crimes. Keith admitted that both he and Pepper had guns at the motel; he always carried a 9 mm. or .45 caliber gun, and Pepper carried a .380 caliber gun.
Detective Fatkin testified about his interrogation of Keith in the State’s rebuttal. Fatkin testified that Keith had described how he and Tague were armed with handguns, waited outside by the soda machine, and observed a Hispanic man enter the motel room before they pushed their way in. According to Keith’s statements to the detective, his gun was a 9 mm. and he thought Tague’s was a 9 mm. gun as well. Keith told Fatkin that when they entered the room, Tague pistol-whipped an older white male. This person turned out to be Davidson, who had a “knot on his head” after the robbery and shooting. Keith told Fatkin the robbery was planned by Myers and Travis, who had already been in the motel room to purchase crack cocaine. Keith shot Franklin when he saw him pull out a handgun.
A jury convicted Tague as charged. Subsequently, the sentencing court imposed a life sentence without possibility of parole for 20 years for the felony-murder conviction. The court imposed a consecutive sentence of 88 months’ imprisonment for the underlying aggravated robbeiy conviction. Tague brings a timely appeal. This court has jurisdiction under K.S.A. 2012 Supp. 22-3601(b)(3) (maximum sentence of life imprisonment imposed). Additional facts will be discussed as necessary.
Hearsay Statements from Unavailable Eyewitnesses
Tague first argues that the trial judge erred in excluding hearsay evidence showing that two eyewitnesses from the motel room, Cross and Davidson, had been unable to identify Tague in a photographic lineup.
The State argues Tague failed to preserve this issue for review because defense counsel failed to proffer a basis for the admissibility of the evidence after the State objected on the grounds of hearsay. Accordingly, we must first determine whether the issue was preserved for review and, if not, whether review would nevertheless be appropriate.
Ordinarily, the party arguing for admission of evidence must provide the trial judge with a specific basis for the admission so the judge has a chance to fully consider whether the evidence should be admitted and to avoid any potential reversible error. State v. Chanthaseng, 293 Kan. 140, 144, 261 P.3d 889 (2011). More specifically:
“When a party seeks to admit hearsay testimony but fails to assert the ground upon which it would be admissible, the trial judge is not called upon to make the requisite finding for its admission into evidence. Under these circumstances the defendant is precluded from asserting the ground for the first time on appeal as a basis for error.” State v. Haislip, 237 Kan. 461, Syl. ¶ 5, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985).
At trial, Tague offered no hearsay exception for the admission of the evidence. When defense counsel first asked Detective Fatkin if Cross or Davidson had been able to identify Tague from the photographic lineup, the State objected on the basis of hearsay. The trial judge asked if counsel had any arguments on the matter, to which defense counsel queried, “Your Honor, may I tiy to rephrase the question?” With the judge’s permission, the questioning continued without defense counsel asking about Cross’ or Davidson’s ability to identify Tague.
After the State’s redirect examination of Detective Fatkin, defense counsel sought permission to approach the bench and, outside the hearing of the jury, stated:
“I don’t know quite how to phrase this, Your Honor, but before this witness is excused my client is demanding that she talks to you because she disagrees with some of the things I have done. And I can’t get her to listen to me, frankly, and I don’t know—I don’t want her to fly off the handle here in front of the jury.”
The trial judge excused the jury, and defense counsel elaborated that Tague “disagrees with the Court’s decision that the failure of two of the witnesses to identify her in the photo array, she disagrees that that should not be admitted.” The judge said,’ “[Ijt’s a hearsay issue and counsel hasn’t set forth any basis. . . . Any basis for that to be admitted?” Defense counsel did not respond with a specific hearsay exception. Instead, the following colloquy took place:
“[DEFENSE COUNSEL]: Your Honor, it was Ms. Tague’s opinion since it was in tire report and we were reviewing [the detective’s] report then that should be allowed because other information from there was let out, I’m not sure if it was the same nature and quality.
“THE COURT: I’m sure you’ve explained to her just because it’s in a report doesn’t mean it’s admissible in a criminal case or any other kind of case.”
The trial judge again repeated that there had to be an applicable hearsay exception before the evidence could be admitted. After some additional comments, the judge stated that “hearsay is [a rule] that applies to both parties. Anything else with regard to that issue . . . ?” The prosecutor then indicated that no part of the statements of die two eyewitnesses “has been entered since it’s [sic] hearsay.” For a final time, although referring broadly to whether there were any additional issues to be presented, the judge asked, “[I]s there anything else?” The judge then offered defense counsel time to speak to Tague. When the record continued, there was no additional mention of the hearsay issue.
Essentially, the legal rulings made by the trial judge never advanced past the point of the ruling that the line of questioning would call for the admission of hearsay. Following that'ruling, the trial judge provided defense counsel repeated opportunities to proffer an exception that would allow the hearsay to be admitted, but defense counsel never took advantage of that opportunity. Al though Tague’s comments might be viewed as a proffer of an exception for the report itself, there was never any attempt to justify tire introduction of the double hearsay regarding tire eyewitnesses’ statements. As a result, the trial judge was never presented with an opportunity to rule whether an exception allowed the admissibility of the eyewitnesses’ statements regarding the photographic lineup.
Significantly, on appeal, Tague does not take issue with the ruling that tire statements were hearsay. The question she presents on appeal-—-whether there was a valid exception for the admission of the hearsay—was not preserved for our review.
Tague, however, argues we should apply an exception to the general rule that new legal theories cannot be asserted for tire first time on appeal. We have recognized only three exceptions: (1) where the newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) where consideration of tire claim is necessaiy to serve tire ends of justice or to prevent the denial of fundamental rights; or (3) where the trial judge is right for the wrong reason. State v. McCullough, 293 Kan. 970, 998, 270 P.3d 1142 (2012); State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010). Tague relies on the second exception and contends she should have been allowed to present the evidence because proof that she did not participate in the crimes was an essential part of her defense and justice demands she be allowed to exercise her right to present a defense.
Indeed, as Tague argues, a defendant has a right to present his or her theory of defense, and improperly excluding evidence that is an integral part of that theory may violate a defendant’s constitutional right to a fair trial. Nevertheless, this right is not unlimited, but is instead subject to statutory rules and caselaw interpretation of the rules of evidence and procedure. State v. Houston, 289 Kan. 252, 261, 213 P.3d 728 (2009).
Here, Tague was allowed to present evidence that she did not participate in the crimes through the testimony of Keith and by cross-examining witnesses in a manner designed to show that someone else committed tire crimes. Thus, she presented her theory of defense to the jury. Furthermore, Tague failed to comply with statutoiy rules and caselaw interpretation of the rules of evidence and procedure that required her to present to the trial judge a legal theory—a hearsay exception—that supported the admission of the evidence. As such, Tague has failed to establish that consideration of the issue of whether hearsay evidence was admissible is necessaiy to serve the ends of justice or to prevent the denial of a fundamental right.
Consequently, we do not reach the merits of this issue.
Tague’s Out-of-Court Statements
Tague next asserts the trial judge erred in admitting evidence of out-of-court statements made by Tague to her best friend Maupin. The trial judge found the statements were admissible as declarations against interest—an exception to the rule against admission of hearsay under K.S.A. 2007 Supp. 60-460(j).
During the State’s direct examination of Maupin, defense counsel objected on the basis of hearsay when Maupin began to testily about a conversation that she had with Tague concerning what happened in the motel room. The State argued the evidence was admissible as a declaration against interest. Defense counsel indicated a foundation had to be laid, stating, “I believe the standards are that the considerations must be made as to the circumstances of the statement to whom the statement was made, the condition and trustworthiness of the declarant.” The trial judge excused the jury and heard additional arguments, during which defense counsel stated, “I don’t disagree it’s a statement against interest, but there does have to be a foundation laid before it can be admitted.”
On appeal, Tague cites no- authority to support her argument that the conditions and trustworthiness of the declarant must be established before evidence can be admitted under the exception in K.S.A. 2007 Supp. 60-460(j) regarding declarations against interest. A failure to support an argument with pertinent authority or to show why the argument is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. Therefore, an argument that is not supported with pertinent authority is deemed waived and abandoned. State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010); see Supreme Court Rule 6.02(a)(5) (2012 Kan. Ct. R. Annot. 38) (appellant’s brief must include “the arguments and authorities relied on” [Emphasis added.]).
Consequently, we do not reach the merits of Tague’s argument.
Autopsy Photographs
Tague argues the trial judge abused his discretion in admitting gruesome and repetitious autopsy photographs of the victim’s body. She contends the photographs were offered solely to prejudice the defendant and create sympathy for the victim. Tague characterizes these photographs as “depicting medical care and instruments, bodily organs pierced with instruments, bloody clothing, and other depictions of autopsy.”
We have recently summarized our standard of review for this issue and the relevant caselaw, stating:
“ ‘The standard of review for the admission of photographic evidence requires the appellate court to first determine whether the photos are relevant. If a party argued that the photographs are overly repetitious, gruesome, or inflammatory, that is to say, prejudicial, the standard of review is abuse of discretion.’ [Citation omitted.]
“This court also reviews a question of whether evidence is cumulative for an abuse of discretion. [Citation omitted.]
“The burden of showing an abuse of discretion rests with the party asserting the error. [Citation omitted.]
“Photographic evidence, like other evidence offered at trial, is relevant and generally admissible if tire photographs have a reasonable tendency to prove a material fact in the case. [Citation omitted.] Although they may sometimes be gruesome, autopsy photographs that assist a pathologist in explaining the cause of death are relevant and admissible. [Citations omitted.] However, admitting gruesome photographs simply to ‘ “inflame the minds of the members of the jury” ’ is error. [Citation omitted.] We have also often said that admission of unduly repetitious photographs can constitute an abuse of discretion. [Citation omitted.] The key, as with prejudice, is the word unduly. [Citation omitted.] The admission of photographs in a murder case has rarely been held to be an abuse of discretion. [Citation omitted.]” State v. Rodriguez, 295 Kan. 1146, 1156-57, 289 P.3d 85 (2012).
Refore we apply this standard of review and caselaw to Tague’s arguments, we note that Tague has not preserved her argument regarding all of the photographs she discusses in her brief. She takes issue on appeal with the admission of seven photographs, admitted as State’s Exhibits 5A, 5P, 5T, 5U, 5V, 5Y, and 5Z. Yet, at trial, defense counsel indicated that the defensé had no objection to Exhibit 5A. Therefore, the issue of that photograph’s admission was not preserved for appeal. See K.S.A. 60-404; State v. Sappington, 285 Kan. 176, 195, 169 P.3d 1107 (2007).
Tague did object to the six other photographs, which were taken during the autopsy of the victim and admitted during tire coroner’s testimony. Prior to their admission, the trial judge conducted a hearing outside the presence of the jury to determine admissibility. During this hearing, defense counsel objected to the photographs as inflammatory, unnecessary, gruesome, and more prejudicial than probative. The trial judge examined all the photographs and noted that some of the photographs depicted the victim’s body and wounds but noted “there is no particular significant blood shown.” Nevertheless, the trial judge indicated that three photographs, 5T, 5U, and 5V, caused some concern because they depicted internal organs. Because of this concern, the judge entertained a voir dire examination of the coroner concerning the photographs.
The coroner testified that photographs 5U and 5T showed the “inferior vena cava, which is the largest vein in the body,” and the “gunshot injury to the vein.” Photograph 5V showed “the injury from the gunshot wound to the right common iliac artery.” The coroner then explained that the “injury to these vessels ... is essentially the fatal wound for the decedent.” The trial judge also asked the coroner about photograph 5Y, which depicted the victim’s kidney after it had been removed from the body. The coroner testified that the photograph showed that “the projectile did penetrate the kidney.”
The trial judge admitted the photographs after concluding:
“[N]one of these photographs distort the actual premise for which they are offered, they do not appear to me to have been introduced for the primary purpose of inflaming foe passions of foe jury. I don’t find them to be particularly gruesome and they do not appear to be unduly repetitious or cumulative in any way. They do appear to me to depict foe victim and his clothing from different angles and different aspects. Franldy, don’t see any basis to exclude any-of foe photographs, so ... I will over foe objection of defense admit State’s Exhibitfs] 5B through 5Z
Following this ruling, the coroner used the photographs to explain tire injuries and the reason the injuries caused death, and each of the six photographs was offered to support a different aspect of the coroner’s testimony. The photographs were not overly repetitious and were not more gruesome Sian necessary for the relevant purposes. Therefore, we conclude tire trial judge did not abuse his discretion in admitting the autopsy photographs.
Cross-Examination Regarding Witness’ Drug Sales
Next, Tague contends die trial judge impermissibly limited defense counsel’s cross-examination of Maupin when he sustained the State’s objections to any questions about Maupin’s involvement with the sale of drugs. She argues that the trial judge’s ruling prevented a full and complete assessment of Maupin’s credibility and, specifically, her ability to perceive events, in violation of Tague’s right of confrontation under the Sixth Amendment to the United States Constitution.
This issue arose during the cross-examination of Maupin when defense counsel attacked her credibility by eliciting testimony about the effect of drug use on her cognitive abilities. Defense counsel established that both women were regularly using drugs during the time period Tague spoke with Maupin about the motel robbery and shooting. When asked “which” drugs Maupin was using, she said, “Everything.” Maupin testified that her ability to fully understand conversations was dependent on how many consecutive days she had been awake.
On redirect examination, Maupin testified that she was pregnant at the time she spoke with Detective Fatkin about Tague’s statements and was generally not using drugs, although she admitted to having a “couple” of relapses. On recross-examination, Maupin clarified that she was frequently using drugs during the time Tague told her about the motel crimes, but she was not using drugs at the time she was talking to Detective Fatkin. Defense counsel then asked, “Were you involved in drugs at all, buying or selling during that time?” The State objected on the basis of relevance and also argued that the question went beyond the scope of the State’s redirect examination.
The trial judge heard arguments on the matter. During this hearing, defense counsel explained that he was attempting to impeach Maupin’s credibility:
“The relevance is that I want to know . . . how active she was in the drug area at the time because that’s going to . . . affect. . . whether we can trust her when she says she wasn’t using during the time she was pregnant. And as far as it being beyond the scope of direct [sic], it’s still within . . . the parameters of the drug usage and I’m trying to get to usage, not necessarily the sale, but I want to find out what contact she had with that culture during that time to help the jury determine what part of her testimony can be trusted.” (Emphasis added.)
The State then argued, “I don’t know how you’re going to find that out by asking if [she] sold or bought drugs.” The trial judge ruled that Maupin’s use of drugs could be explored, but not the sale of drugs: The judge recognized that “the use of drugs . . . would certainly go to her ability to perceive and memory, those kinds of things, but I’m not compelled to see where anything with regard to the sale of drugs would be.”
On appeal, Tague quotes State v. Scott, 39 Kan. App. 2d 49, 56, 177 P.3d 972 (2008), for its statement that “ ‘[t]he cross-examiner should have wide latitude in establishing partiality, bias, motive or interest.’ ” She contends that given the “link between sale and use for narcotics users,” if Maupin had admitted to selling drugs, such testimony “may” have led to “further information regarding use or abuse of drugs during the time of perception or the time she communicated such statements to law enforcement. ... As such, the statements should be admissible in attacking the perception of the witness at the time of the event.”
In making this argument, Tague, as the person alleging error, carries the burden of establishing that the trial judge abused his discretion in limiting the cross-examination by excluding evidence he did not deem sufficiently probative of a material issue. See Rodriguez, 295 Kan. at 1156 (burden of proof rests with party asserting error); State v. Reid, 286 Kan. 494, 508, 186 P.3d 713 (2008) (probative element of relevance reviewed under an abuse of discretion standard); State v. Corbett, 281 Kan. 294, 307-08, 130 P.3d 1179 (2006) (trial judge’s decision to limit cross-examination reviewed under abuse of discretion standard). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). In both the determination of whether a trial judge erred in weighing the probative value of evidence and in limiting cross-examination, the applicable standard for an abuse of discretion is whether the judicial action is arbitrary, fanciful, or unreasonable i.e., no reasonable person would take the view adopted by the judge. See Ward, 292 Kan. 541, Syl. ¶ 3; Berriozabal, 291 Kan. at 586 (question of whether evidence is probative); Corbett, 281 Kan. at 307-08 (cross-examination).
In this case, the trial judge recognized Tague’s right to impeach Maupin and, in fact, allowed her to do so by questioning Maupin about her drug use. See State v. Belote, 213 Kan. 291, Syl. ¶ 4, 516 P.2d 159 (1973) (evidence of drug use may be admissible for impeachment where witness was under the influence of drugs at the time of tire events or the witness’ mind, memory or powers of observation were affected by the habit). The judge drew a line, however, at evidence that the judge did not deem probative. Before us, Tague has presented an argument that, at best, establishes an extremely tenuous link between the question asked and possible impeachment evidence. Reasonable people would agree with the trial judge that the evidence lacked sufficient probative value to be admitted. Consequently, Tague has failed to meet her burden of establishing that the trial judge’s ruling was arbitrary, fanciful, or unreasonable.
Aiding and Abetting Jury Instruction
Tague also argues the trial judge erred by giving Instruction No. 7, an aiding and abetting instruction, which was based on PIK Crim. 3d 54.05 and stated:
“A person who, either before or during its commission, intentionally aids, abets, counsels and/or procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.”
Tague’s argument has two primary contentions. She first claims the aiding and abetting instruction should not have been given because the jury could have been confused by it and convicted Tague based on her knowledge of events after they occurred rather than based on evidence of her participation in the crimes. Second, she claims the aiding and abetting instruction impermissibly lessened the State’s burden of proof because it contained no foreseeability requirement. Tague contends that Franklin’s death had to be a foreseeable result of the motel robbery before she could be convicted of felony murder.
In State v. Plummer, 295 Kan. 156, 283 P.3d 202 (2012), this court established the analytical framework for instructional issues with corresponding standards of review. We stated:
“For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” Plummer, 295 Kan. 156, Syl. ¶ 1.
Jury Confusion Issue
Regarding the first step of whether an issue of jury confusion was properly preserved, the parties in this appeal take differing views. Tague’s appellate counsel focuses on an objection made during the preliminary phase of the jury instructions conference. At that point, defense counsel argued that the aiding and abetting instruction would be “confusing” because “[sjome of tire testimony indicated that perhaps [Tague] learned about the crime after the fact and that she didn’t report it and . . . maybe [the jury would think] . . . this would require a finding of guilt.” The trial judge observed that the instruction accurately stated the law and noted that defense counsel “would certainly be able to point out to the jury it says a person who [acted] either before or during its com mission.” (Emphasis added.) Defense counsel agreed that the plain language of the instruction required consideration of behavior before or during the crime but did not want the jury “to be confused.” Clearly, at this point, an objection was made to the confusing nature of the instruction.
Nevertheless, the State focuses on a later exchange, after the trial judge prepared the final juiy instructions, during which the State argues defense counsel “let the matter drop” by failing to “lodge an objection to the final form of the instruction.” This contention is not persuasive in light of the record, however. The trial judge, after providing the parties with the final version of the instructions and verdict forms, acknowledged the parties’ previous objections to the jury instructions and stated, “I want to make sure there’s nothing else anybody has with regard to each page of the instructions and the two verdict forms.” (Emphasis added.) This exchange suggested the judge was seeking additional objections or arguments pertaining to the final version of the jury instructions. Under those circumstances, it was not necessary for defense counsel to repeat the objections in order to preserve them for appeal.
Having concluded the objection was adequately made, we next consider whether the aiding and abetting instruction was legally appropriate. In doing so, we exercise de novo review. See Plummer, 295 Kan. 156, Syl. ¶ 1.
Tague contends that, while the instruction accurately and correctly stated the law, the instruction was inappropriate because “defendant’s general knowledge of the event could be misconstrued as intentionally aiding and abetting during the offense.” Ta-gue does not explain how the jury could have possibly been confused, however. As Tague acknowledges, the aiding and abetting instruction accurately focused on the defendant’s behavior before and during the crimes, not on knowledge gained after the fact or even the subsequent failure to report the crimes. This court presumes the jury followed tire instructions given. See State v. Mitchell, 294 Kan. 469, 482, 275 P.3d 905 (2012). Nothing in tire record suggests the jurors did not follow the instructions in reaching tire verdict.
Further, the evidence supported an aiding and abetting instruction. Tague’s arguments regarding jury confusion assume that she did not participate in the crimes and was not at the scene. But the State’s evidence, primarily through the testimony of Green who was present in the motel room during the crimes, Maupin, and law enforcement officers, supported the State’s theoiy that Tague was present at the motel room and actively participated in the robbeiy. The trial judge did not err in rejecting Tague’s jury confusion argument and in giving the aiding and abetting instruction.
Foreseeability Requirement
Turning to Tague’s next argument regarding the jury instruction, we return to the four steps of analysis set forth in Plummer. Regarding the preservation issue, there is no dispute that Tague never raised the foreseeability issue before the trial judge. In State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012), which was decided shortly after Plummer, we recognized that the clearly erroneous standard of K.S.A. 22-3414(3) applies if there was not a specific objection to the instruction during the trial. See Ellmaker, 289 Kan. at 1138-39 (under K.S.A. 22-3414[3], if at trial a party did not state the specific objection raised on appeal but rather a different objection, a clearly erroneous standard of review applies).
In Williams, we observed that our past caselaw tended to blend or conflate the determinations of appellate reviewability, error on the merits, and reversibility of the error. Williams established the following framework when a jury instruction is claimed to be clearly erroneous: (1) Utilizing the unlimited review applied to legal questions, the reviewing court first determines whether the instruction or the failure to give the instruction was erroneous; and (2) if error is found, the court must review the entire record to make a de novo determination of whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. Williams, 295 Kan. at 515-16.
We, therefore, begin our analysis of the foreseeability issue by applying an unlimited standard of review to die question whether it was error at all to omit a foreseeability requirement from the instruction. We conclude it was not because this court rejected the same argument under nearly identical circumstances in State v. Gleason, 277 Kan. 624, 638, 88 P.3d 218 (2004) (victim’s death does not have to be foreseeable result of burglary or other inherently dangerous felony in order for defendant to be convicted of felony murder, and thus aiding and abetting instruction was not required to include foreseeability requirement). Tague fails to present any persuasive reasons for us to overturn Gleason.
Because the trial judge did not err in giving the aiding and abetting instruction as written, there is no need to move on to a reversibility inquiry. See Williams, 295 Kan. at 515-16.
Rule 6.09 Lesser Included Offense Argument
Finally, Tague submitted a letter of additional authority under Supreme Court Rule 6.09(b) (2012 Kan. Ct. R. Annot. 49) in which she asked the court to consider State v. Berry, 292 Kan. 493, Syl. ¶ 6, 254 P.3d 1276 (2011), as authority supplementing her “previously submitted brief as part of Section IV,” which is the issue related to the scope of the cross-examination of Maupin. This court granted the motion.
At oral argument, however, it became clear that Tague’s appellate counsel was not citing Berry in support of the issue regarding the cross-examination of Maupin. Rather, Tague was raising an entirely new issue not stated in her brief—whether the trial court erred in failing to give lesser included offense instructions on second-degree murder and involuntary manslaughter. Consequently, at oral argument the court questioned whether a Rule 6.09(b) letter was an appropriate vehicle for raising an entirely new issue on appeal. Following oral argument, Tague filed a motion to construe her prior Rule 6.09(b) letter as a supplemental brief or to permit supplemental briefing. Both her attempt to raise a new issue through her Rule 6.09(b) letter and her belated attempt to file a supplemental brief fail.
Rule 6.09(b) letters are reserved for citing significant relevant authorities not previously cited which come to a party’s attention after briefing. We have previously held that an appellate court will not consider new issues raised for the first time in a party’s Rule 6.09(b) letter. See, e.g., State v. Houston, 289 Kan. 252, Syl. ¶ 13, 213 P.3d 728 (2009) (“[Rule 6.09] was not intended to be, nor should it be, used as yet another briefing opportunity.”)- Our order allowing Tague to file her Rule 6.09(b) letter did not except this case from that rule. Our consideration of the new issue is prohibited by Houston and similar cases.
Further, while a supplemental brief may have been a more appropriate vehicle for raising a new issue with the court, a motion to file a supplemental brief that is submitted after oral arguments is not timely. See Supreme Court Rule 6.01 (2012 Kan. Ct. R. Annot. 37). The motion is denied.
Consequently, we will not address the issue raised for the first time in Tague’s Rule 6.09(b) letter.
Affirmed. | [
-16,
-24,
-19,
-67,
29,
96,
32,
-72,
98,
-15,
48,
83,
45,
-38,
84,
123,
58,
63,
84,
97,
-11,
-73,
15,
-63,
-78,
-77,
-46,
-42,
-80,
-53,
-12,
-68,
73,
96,
-118,
-59,
102,
74,
-75,
82,
-118,
30,
-120,
-14,
-54,
66,
32,
63,
-90,
10,
-15,
-114,
-13,
41,
-101,
-61,
105,
40,
75,
61,
64,
-7,
42,
-123,
-51,
22,
-77,
38,
-97,
-81,
-8,
36,
-48,
57,
8,
-8,
115,
-74,
-110,
116,
109,
-117,
13,
102,
67,
1,
28,
-19,
44,
-127,
47,
127,
-107,
-89,
-100,
9,
97,
13,
-106,
-67,
100,
50,
-86,
-20,
-27,
87,
91,
-28,
-119,
-50,
-112,
-111,
47,
48,
-126,
-6,
-21,
-93,
48,
113,
-52,
-28,
84,
-43,
83,
-5,
-50,
-106
] |
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, John C. Davis, of Overland Park, an attorney admitted to the practice of law in Kansas in 1983, and in Missouri in 1968. Respondent’s Missouri license has been suspended since May 1, 2012.
On March 20, 2012, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on March 26, 2012. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on May 24, 2012, when the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.5 (2011 Kan. Ct. R. Annot. 470) (fees); 1.15 (2011 Kan. Ct. R. Annot. 519) (safekeeping property); 8.4(b) (2011 Kan. Ct. R. Annot. 618) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer); 8.4(c) (engaging in conduct involving misrepresentation); and 8.4(d) (engaging in conduct prejudicial to tire administration of justice).
Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“7. In 1991, the Respondent began representing [D.N.] in estate planning matters. The Respondent prepared a revocable trust naming [D.N.] as the trustee and naming himself as fhe successor trustee. Finally, in the event the Respondent was unable to serve or continue to serve, [D.N.] named Commerce Bank as an additional successor trustee.
“8. Beginning in 1993, [D.N.] had a series of strokes. As a result, [D.N.] asked the Respondent to succeed her as trustee of the trust. The Respondent continued to serve as [D.N.’s] attorney and the attorney for the trust. The Respondent had the responsibility to manage the trust’s multi-million dollar investments and make disbursements for the benefit of [D.N.]. Additionally, [D.N.] gave fhe Respondent a power of attorney for healthcare decisions.
“9. Following her husband’s death, [D.N.] moved into an apartment at a nursing facility. From that point forward she lived in skilled nursing facilities, assisted living communities, and rehabilitation centers for the rest of her life.
“10. In 1996, the Respondent, in his capacity as trustee of the trust, hired the Respondent’s wife to serve as an advocate for [D.N.]. The Respondent testified that this engagement was initiated at his wife’s suggestion. Initially, the Respondent paid Mrs. Davis $25.00 per hour for her services. Over time, Mrs. Davis’ hourly rate increased in die Respondent’s sole discretion. At the time of [D.N.’s] deadi in May, 2009, the Respondent paid Mrs. Davis $100.00 per hour for her services. Mrs. Davis was paid in all instances from die trust assets.
“11. Mrs. Davis’ duties included supervising other care givers, accompanying [D.N.] to doctor’s appointments, visiting [D.N.], and ensuring diat the nursing facilities provided [D.N.] with good care.
“12. Mrs. Davis’ annual income from serving as [D.N.’s] advocate was as follows:
1996 $25.00 per hour $5,706.25
1997 $25.00 per hour $10,268.75
1998 $35.00 per hour $15,233.75
1999 $35.00 - $45.00 per hour $21,985.00
2000 $45.00 per hour $30,172.50
2001 $45.00 per hour $32,996.25
2002 $50.00 - $60.00 per hour $45,207.50
2003 $60.00 per hour $50,350.00
2004 $60.00 per hour $47,070.00
2005 $60.00 per hour $49,050.00
2006 $60.00 per hour $51,390.00
2007 $60.00 per hour $54,585.00
2008 $60.00 per hour $55,095.00
2009 $60.00 - $100.00 per hour $28,510.00
(Footnote: In 2009, the Respondent’s wife received $28,510.00 for the time period of January dirough May.) Thus, from 1996 tiirough 2009, the Respondent paid his wife from trust assets a total of $497,620.00 for serving as [D.N.’s] advocate.
“13. During that same period of time, the Respondent’s hourly attorney rate went from $185.00 to $380.00 per hour. The Respondent paid his law firm (for services he rendered) the same rate whether the Respondent was performing work as attorney for the trust or whether he was performing work as trustee of the trust. From 1996 through 2009, the Respondent paid his law firm a total of $801,906.00 in attorney and trastee fees.
“14. On April 13, 2009, tire Respondent opened an account, titled ‘John C. Davis, Trustee, [D.N.] Trust’ at US Bank. Prior to the Respondent opening this account, all of [D.N.’s] bank accounts had been held at Commerce Bank. As noted previously, Commerce Bank was named as an additional successor trustee under tire trust instrument. The initial funds deposited into the US Bank account came from the sale of an investment account held by the trust with A.G. Edwards. The initial deposit at US Bank was for $119,595.08. Two days after opening the account, on April 15,2009, tire Respondent wrote three checks drawn on the trust’s account at US Bank as follows:
1001 Internal Revenue Service $70,000.00
1002 Kansas Income Tax $7,000.00
1003 Mo. Dept, of Revenue $6,000.00
The Respondent used the three checks to pay the Respondent’s joint marital 2008 income tax liability. On two of the checks, the Respondent struck through ‘[D.N.] Trust.’ And, on all three of the checks, tire Respondent hand-wrote his personal social security number. The Respondent did not have authority from [D.N.] to use trust funds in this fashion. Further, the Respondent did not inform [D.N.] nor her beneficiaries that he used the trust’s assets to pay his personal marital income tax liabilities.
“15. The Respondent testified that at the time the Respondent converted the trust assets to his own use, he had sufficient personal assets to pay his own tax obligations.
“16. On May 23, 2009, [D.N.] died.
“17. In January 2010, [R.E.], as part of his administrative duties as chair of the tax, trusts, and estate division of the Respondent’s law firm, Stinson Morrison Hecker, reviewed matters on which the Respondent, a member of that division, was working. [R.E.] discovered that a significant portion of the Respondent’s time billed during the previous year had been devoted to [D.N.’s] trust and estate. During his review, [R.E.] became concerned that die Respondent was billing excessive amounts of time for the tasks detailed in the billing records. Additionally, [R.E.] noted that many of the Respondent’s time entries were in even hour increments rather Üian in tenth of an hour increments that are standard for Stinson Morrison Hecker billing. Finally, [R.E.] also discovered diat the Respondent had been paying the Respondent’s wife from [D.N.’s] estate and trust assets.
“18. [R.E.] reported his concerns to the law firm’s general counsel, [L.J.]. The law firm conducted additional investigation. During the investigation, [R.E.] and [L.J.] met with the Respondent on two occasions. During those meetings, the Respondent acknowledged that he ‘rounded up’ some of his time entries. The Respondent failed to disclose that he used [D.N.’s] trust funds to pay his personal marital income tax liabilities for 2008.
“19. After being questioned by [R.E.] and [L.J.], on January 21, 2010, the Respondent deposited $83,000.00 into [D.N.’s] trust account at US Bank. Additionally, tire Respondent deposited into [D.N.’s] trust account at US Bank $1,490.00 for interest on the $83,000.00 that he had converted to his personal use on April 15, 2009. On the trust account ledger, the Respondent noted that the $83,000.00 deposit was for ‘tax refunds.’ Additionally, on die trust account ledger, the Respondent noted that die $1,490.00 was for ‘interest on refunds.’
“20. On February 8, 2010, die Respondent withdrew as a partner with Stinson Morrison Hecker. At that time, the Respondent agreed to leave his partner capital account witii the law firm to cover any expenses associated with his misconduct. The Respondent testified tiiat at the time the Respondent departed Stinson Morrison Hecker, the Respondent’s partner capital account was approximately $50,000.
“21. On March 2, 2010, die Respondent resigned as trustee of [D.N.’s] trust. At that time, Commerce Bank took over as successor trustee of the trust.
“22. Stinson Morrison Hecker informed Commerce Bank that it would fairly compensate die trust for amounts that were billed inappropriately by the Respondent. As a result of their pledge, Stinson Morrison Hecker ultimately agreed to and did pay the trust $433,604.23. According to Stinson Morrison Hecker, that amount represents a refund of $279,177.98 of the fees paid by die trust to the law firm for the Respondent’s attorney’s fees and reimbursement of $154,426.25 of the payments made by the trust to Mrs. Davis for serving as an advocate for [D.N.].
“23. Regarding restitution payments made by die Respondent, the Respondent replaced the $83,000.00 he converted. Additionally, the Respondent deposited $1,490.00 as payment of interest on the $83,000.00. Finally, at die time Stinson Morrison Hecker terminated the Respondent, the Respondent had approximately $50,000.00 in his partner capital account. The Respondent agreed to forgo repayment of his partner capital account when he left Stinson Morrison Hecker. The Respondent made no attempt to contact Commerce Bank or the trust beneficiaries or to otherwise malee restitution or confirm that adequate restitution was paid by the law firm.
“24. On April 20, 2010, [R.E.] and [L.J.] filed a complaint witii the Disciplinary Administrator’s office. At approximately that same time, a complaint was filed with the Missouri bar disciplinary authorities.
“25. On May 14, 2010, the Respondent provided a written response to the complaint filed witii the Kansas Disciplinary Administrator. In the response, the only statement made by the Respondent which would amount to accepting responsibility for his actions was to say:
‘It is possible I could have been more precise in describing and perhaps I could have been more efficient, but the trustiestate administration required a good deal of time which I expended. I did not at any time overcharge for my work eitiier for my own benefit or for die benefit of the firm. I did not take advantage of the trust estate or its beneficiaries and did not act dishonestly or deceitfully.’
Nowhere in the Respondent’s written response did he admit to ‘rounding up’ his time. Additionally, again, the Respondent failed to disclose his conversion of [D.N.’s] trust funds that he used to pay his personal marital tax liabilities.
“26. Later, on September 15, 2010, [L.J.] supplemented his complaint with the Kansas Disciplinary Administrator with information regarding the trust checks that the Respondent wrote to the taxing authorities. It appears that the Respondent did not respond to the allegations contained in [L.J.’s] supplemental complaint.
“27. On May 1, 2012, the Supreme Court of Missouri concluded that the Respondent violated three provisions of the Missouri Rules of Profession Conduct; sections 4-8.4(b), 4-8.4(c), and 4-8.4(d). The Supreme Court of Missouri suspended the Respondent for a period of three years for a portion of the conduct addressed in this final hearing report. The Missouri Supreme Court considered only the Respondent’s conversion of [D.N.’s] trust funds for payment of the Respondent’s personal marital income taxes. It does not appear that the Missouri Supreme Court considered whether the Respondent violated Missouri’s equivalent to KRPC 1.5 or KRPC 1.15.
“28. At the disciplinary hearing, the Respondent testified as to his practice of rounding up time to tire nearest full hour and stated that his billing practice on [D.N.’s] file was consistent with his practices for his other clients.
“29. The Respondent admitted to violating KRPC 1.5, KRPC 1.15, KRPC 8.4(b), KRPC 8.4(c), and KRPC 8.4(d).
“CONCLUSIONS OF LAW
“30. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.5, KRPC 1.15, and KRPC 8.4, as detailed below.
“31. KRPC 1.5 requires attorneys to charge reasonable fees. Rounding up time constitutes billing for work not performed. Billing for work not performed is per se unreasonable. Accordingly, the Hearing Panel concludes that the Respondent charged an unreasonable fee.
“32. Lawyers must keep the property of their clients safe. See KRPC 1.15. In this case, the Respondent failed to properly safeguard [D.N.’s] property when he converted $83,000.00 and used it to pay his personal marital income tax liabilities. Therefore, the Hearing Panel concludes that tire Respondent violated KRPC 1.15.
“33. ‘It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4(b). In this case, the Respondent committed the crime of theft when he knowingly converted [D.N.’s] money and used it for his own purposes. The crime of theft is a crime of dishonesty. Accordingly, the Hearing Panel concludes that the Respondent committed a criminal act and that criminal act reflects directly on the Respondent’s honesty, trustworthiness, and fitness as a lawyer in other respects, in violation of KRPC 8.4(b).
“34. Further, ‘[i]t is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in conduct that involved dishonesty when he knowingly converted [D.N.’s] property and used it to pay his personal marital income tax liability. Further, the Respondent engaged in additional dishonest conduct in an attempt to cover up his theft of the money by making false entries in the ledger for the US Bank account after he replaced the money in tire account. The Respondent indicated that the deposits were for tax refunds and interest on the tax refunds. As such, the Hearing Panel concludes that the Respondent violated ICRPC 8.4(c).
“35. Finally, ‘[i]t is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to tire administration of justice.’ KRPC 8.4(d). In this case, tire Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he established a new trust bank account at US Bank for his own personal purposes. As such, the Hearing Panel concludes that tire Respondent violated KRPC 8.4(d).
“AMERICAN BAR ASSOCIATION “STANDARDS FOR IMPOSING LAWYER SANCTIONS
“36. In making this recommendation for discipline, the Hearing Panel considered the factors outlined by tire American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, tire factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by tire lawyer’s misconduct, and tire existence of aggravating or mitigating factors.
“37. Duty Violated. The Respondent violated his duly to his client to properly safeguard her properly. Additionally, the Respondent violated his duty to his law firm and the legal profession to maintain his personal integrity.
“38. Mental State. The Respondent knowingly and intentionally violated his duties.
“39. Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to [D.N.’s] estate, to Stinson Morrison Heclcer, and the legal profession.
“40. Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in tire degree of discipline to be imposed. In reaching its recommendation for discipline, tire Plearing Panel, in this case, found the following aggravating factors present:
“41. Dishonest or Selfish Motive. The Respondent’s misconduct was motivated by dishonesty and selfishness. Despite the Respondent’s statements to the contrary, the Respondent’s conversion of $83,000.00 of trust funds was not a loan. The Respondent intentionally converted trust property. Intentional conversion is a dishonest and selfish act. Additionally, the Respondent failed to exercise pro fessional judgment when he retained his wife to serve as [D.N.’s] advocate. Hiring his wife to serve in this capacity constitutes selfish conduct.
“42. A Pattern of Misconduct. The Respondent engaged in a pattern of dishonest conduct by committing a number of dishonest acts over a period of many years. First, he engaged in a pattern of ‘rounding up’ his time charged to [D.N.’s] estate, and, by his own admissions, his other clients. Next, he engaged in a series of events involving dishonesty by establishing tire US Bank account, having [D.N.’s] funds deposited into the account, using the account to pay his personal marital income taxes, by failing to replace the money until after Stinson Morrison Hecker launched an investigation into his representation of [D.N.], and by making false entries on the ledger associated with the US Bank account. Finally, the Respondent engaged in a pattern of dishonesty when he failed to disclose that he converted [D.N.’s] money for his own use by using it to pay his personal marital income tax liability. This included the Respondent’s intentional dishonest representation to the Disciplinary Administrator in his May 14, 2010, letter, where he states: T did not take advantage of the trust estate or its beneficiaries and did not act dishonestly or deceitfully.’
“43. Vulnerability of Victim. [D.N.] was extremely vulnerable to the Respondent’s misconduct. She had no one overseeing her financial business, other than the Respondent. She was unable to effectively communicate following her strokes. Accordingly, the Hearing Panel concludes that it can envision few victims who would be more vulnerable than [D.N.].
“44. Substantial Experience in the Practice of Laio. The Missouri Supreme Court admitted the Respondent to the practice of law in 1968. Additionally, the Kansas Supreme Court admitted the Respondent to the practice of law in 1983. Accordingly, tire Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“45. Indifference to Making Restitution. To date, other than replacing the converted funds and paying a small amount of interest on the converted funds, the only effort the Respondent has made to make restitution was leaving his partner capital account of approximately $50,000 behind at the time he withdrew from Stinson Morrison Hecker. The Respondent has not communicated or attempted to communicate with Commerce Bank, Stinson Morrison Hecker, or the beneficiaries regarding appropriate restitution.
“46. Illegal Conduct, Including that Involving the Use of Controlled Substances. The Respondent engaged in illegal conduct when he knowingly converted [D. N .’s] property.
“47. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“48. Absence of a Prior Disciplinary Record. Other than the concurrent disciplinary proceedings in Missouri, the Respondent has not been disciplined.
“49. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. While the Respondent presented some evidence of personal problems, the Hearing Panel concludes that the evidence presented is not compelling. In addition, the evidence presented indicated that the Respondent blamed his wife for much of his personal problems which reflected the Respondent’s reluctance to accept responsibility for his own actions. Accordingly, the Hearing Panel concludes that personal or emotional problems are not a mitigating factor in this case.
“50. The Present Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. During tire hearing, the Respondent acknowledged the misconduct. However, the Respondent failed to initially acknowledge his misconduct and withheld the information first from his law firm’s investigation and later from the investigator assigned by the Disciplinar)' Administrator. Further, the Respondent never fully acknowledged his conversion of [D.N.’s] funds, instead characterizing them as a loan, in direct opposition to the evidence and without any colorable support for such assertion.
“51. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent presented letters regarding his good character and reputation. The Hearing Panel accepted the letters of the Respondent’s previous good character.
“52. Imposition of Other Penalties or Sanctions. The Missouri Supreme Court suspended the Respondent’s license to practice law in tire State of Missouri for a period of three years.
“53. Remorse. At the hearing on tire formal complaint, the Respondent expressed remorse. However, the Hearing Panel was not convinced that tire Respondent was remorseful for the misconduct. It appeared that the Respondent’s remorse was limited to tire predicament that tire Respondent currently finds himself in.
“54. In addition to tire above-cited factors, the Hearing Panel has thoroughly examined and considered tire following Standards:
‘4.11 Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.
‘5.11 Disbarment is generally appropriate when:
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that serious adversely reflects on the lawyer’s fitness to practice.’
“RECOMMENDATION
“55. The Disciplinary Administrator recommended that the Respondent be indefinitely suspended from the practice of law. The Respondent joined in the Disciplinary Administrator’s recommendation for an indefinite suspension from the practice of law.
“56. The Hearing Panel recognizes that it is an unusual event for a Hearing Panel to recommend discipline greater than recommended by the parties. However, the Respondent’s misconduct in this case is so serious that the ultimate sanction of disbarment is appropriate.
“57. The Respondent established the US Bank account on April 13, 2009, with proceeds from the sale of investments in [D.N.’s] trust’s account with A.G. Edwards. Prior to this event, all of the trust’s bank accounts had been maintained at Commerce Bank, successor trustee of the trust. Two days later, the Respondent wrote three checks drawn on that account to pay for personal obligations. Clearly, opening the account was done to peipetuate a fraud.
“58. The Respondent knowingly converted an elderly, disabled client’s funds and used those funds to pay his personal marital income tax liability. The Respondent has minimized his responsibility for this act by describing it as ‘borrowing’ $83,000.00. However, the fact that the Respondent did not replace the funds in [D.N.’s] account until after the law firm launched its investigation leads the Hearing Panel to conclude diat the Respondent may never have paid those monies back had the law firm not investigated his representation of [D.N.’s] trust.
“59. The Respondent overpaid his law firm and overpaid his wife more than $400,000.00, according to the agreement between Commerce Bank and Stinson Morrison Hecker.
“60. Finally, to compound his misconduct, the Respondent failed to disclose to [R.E.] and [L.J.] the conversion of [D.N.’s] funds during the investigation of the Respondent’s representation of [D.N.]. The Respondent went on to assert to the Disciplinar)' Administrator that he had not taken advantage of the trust or its beneficiaries and did not act dishonestly or deceitfully.
“61. By itself, theft of client funds warrants disbarment. However, in this case, the Respondent’s misconduct is compounded by various other dishonest acts.
“62. Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be disbarred.
“63. Costs are assessed against tire Respondent in an amount to be certified by die Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2011 Kan. Ct. R. Annot. 334). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
The respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of both the hearing before the panel and the hearing before this court. The respondent filed no exceptions to the hearing panel’s final hearing report. The panel’s findings of fact are thus deemed, admitted. See Supreme Court Rule 212(c), (d) (2011 Kan. Ct. R. Annot. 352).
The evidence before the hearing panel establishes the charged misconduct of the respondent by clear and convincing evidence and supports the panel’s conclusions of law. We therefore also adopt the panel’s conclusions.
The only remaining issue before us is the appropriate discipline. At the hearing before this court, the office of the Disciplinary Administrator recommended indefinite suspension. The respondent, through counsel and personally, also requested indefinite suspension. Respondent has continued to minimize his conduct and maintained that he did not take advantage of the trust estate or its beneficiaries. He personally professed to the court that his troubles were born of inefficiencies; that the trust and estate administration required a good deal of time in which he neither overcharged for his own benefit or the benefit of the firm. We are not persuaded by that argument. The respondent knowingly converted an elderly, disabled client’s funds and used those funds to pay his wife nearly a half a million dollars for supervising healthcare providers and ensuring that nursing facilities provided adequate care. Further, he used estate funds to pay his personal marital income tax liability. The respondent minimized his responsibility for this act by describing it as “borrowing” $83,000.00. Respondent took money entrusted to him, converted it to his own use, and has yet to fully refund either tire estate or the law firm who covered some of his misappropriation from the estate. Disbarment is the appropriate sanction.
Conclusion and Discipline
It Is Therefore Ordered that John C. Davis be disbarred from tire practice of law in the state of Kansas, effective on the filing of this opinion, in accordance with Supreme Court Rule 203(a)(1) (2011 Kan. Ct. R. Annot. 280).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379), as amended December 1, 2012, and in the event respondent seeks reinstatement, he shall comply with Supreme Court Rule 219 (2011 Kan. Ct. R. Annot. 380), as amended December 1, 2012.
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
-76,
-24,
-51,
95,
-118,
-32,
-70,
-86,
89,
-13,
103,
83,
-23,
-54,
9,
47,
-48,
109,
-47,
121,
-59,
-74,
123,
-63,
118,
-5,
-8,
-43,
-80,
95,
-12,
-35,
72,
48,
-126,
-43,
6,
-54,
-41,
-100,
-118,
2,
10,
-32,
91,
-63,
48,
107,
23,
15,
53,
62,
51,
42,
17,
111,
72,
76,
-1,
-83,
80,
-112,
-101,
21,
123,
23,
35,
-123,
-100,
-121,
80,
59,
-120,
-71,
43,
-87,
35,
-78,
6,
-12,
79,
-119,
41,
114,
98,
-93,
25,
-27,
-80,
-120,
63,
-107,
-115,
7,
-103,
81,
105,
15,
-106,
-34,
112,
36,
39,
-4,
-26,
69,
19,
104,
7,
-49,
-44,
-111,
28,
117,
-36,
-117,
-1,
-57,
48,
69,
-116,
-26,
95,
-45,
50,
27,
-114,
-78
] |
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Stephen B. Small, of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas in 1986.
On August 24, 2011, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on September 20, 2011. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on November 15, 2011, when the respondent was personally present. The hearing panel determined that respondent violated KRPC 8.4(d) and (g) (2012 Kan. Ct. R. Annot. 643) (engaging in conduct prejudicial to the administration of justice and adversely reflecting on lawyer s fitness to practice law).
The panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“32. On August 31, 2008, Maiy Friedheim entered into a lease agreement with Michael D. and Tammy J. Bluhm, for the rental of her home located at 4100 West 126th Street, Leawood, Kansas.
“33. On October 22, 2008, Ms. Friedheim retained the Respondent to assist her in having the Bluhms immediately removed.
“34. Ms. Friedheim and the Respondent did not enter into a written fee agreement. For the time period from October 22, 2008, through January 30, 2009, the Respondent billed Ms. Friedheim $32,651.13 for the representation. The Re spondent billed Ms. Friedlieim $250.00 [an hour] for work performed during regular business hours, he billed her $350.00 an hour for after hours work, and he billed her $350.00 an hour for court time.
“35. On Friday, October 24, 2008, the Respondent filed an application for an emergency restraining order or injunction for restitution of property and other relief. As a result, the Respondent obtained an ex parte temporary restraining order. The Court ordered the Bluhms to leave. The Respondent drafted a proposed order memorializing the Court’s decision. The Court made handwritten changes to the order and signed the order. The Court’s handwritten changes included adding the following language:
‘The Court will make itself available between the entiy of this order & Oct 31, 2008, in the event the Defendants wish to be heard &/or wish to move to set aside this order.’
The Bluhms left Ms. Friedheim’s home.
“36. On Monday, October 27, 2008, the Bluhms retained Jerry D. Rank. In behalf of the Bluhms, Mr. Rank requested that the court conduct a hearing on the ex parte temporary restraining order.
“37. The court held a hearing as a result of the Bluhms’ request. At the conclusion of the healing, the Court dissolved the temporaiy restraining order because it disturbed rather than preserved the status quo, relief would be available to Ms. Friedheim at trial, and the alleged injury could be cured through money damages. No journal entry was prepared memorializing the Court’s October 27, 2008, decision.
“38. On October 28, 2008, the Respondent filed a motion to reconsider and vacate the October 27, 2008, order. Also in his motion, the Respondent sought the disqualification or recusal of Judge Sutherland. The Respondent, however, failed to comply with the procedure for motions for disqualification or recusal, set out in K.S.A. 20-311d. In the motion, the Respondent alleged as follows:
T.) This case was filed on the afternoon of October 24, 2008 and assigned to Division Three. The court’s immediate reaction to the assignment was that the court is suspicious of ex party Injunction—TRO actions filed pursuant to K.S.A. 60-903 late on Friday. After consideration of the verified Petition, arguments of counsel and testimony of tire Plaintiff the court granted the 7 page Order supplied by Plaintiff, striking certain portions as “hyperbole.”
‘2.) On Monday, October 27,2008, at approximately 9:30 A.M. the court left word for counsel that the Defendants had appeared and engaged in ex parte communication, and that the court was very troubled that counsel did not reveal to the court that the Defendants were operating a business in the residence. The court demanded that counsel be immediately available for a hearing, inferring professional misconduct in concealment of a material fact, but was agreeable that could occur at 1:00 P.M. The court’s position resulted from ex parte communication by the Defendants.
‘3.) While meeting with Plaintiff in a witness room, the court entered the room and stated that the court wanted to keep tire parties separated, one in a witness room and the other in the courtroom initially, that Plaintiff could be brought into the court room after the defendants were seated. The court’s sequestration ruling was engendered by the emotional state of the defendants [sic] and their ex parte statements concerning the Plaintiff.
‘4.) The court then invited counsel to chambers and set down rules as to how the lawyers were to behave, including comments such as instructions not to speak to each other’s client, anticipating some sort of violent outburst because the emotions were running high. Neither Plaintiff nor her counsel had demonstrated any emotional outburst. The court’s belief that this was necessaiy was engendered by the ex parte communications of the Defendants.
‘5.) During the hearing of October 27, 2008 the court refused to allow counsel to approach the defendant [sic] with Exhibits and screamed very loudly “No” at Plaintiff s counsel.
‘6.) During the hearing uncontroverted evidence of the following was adduced: ... [In the motion, the Respondent stated his case as he viewed it, as the uncontroverted evidence.]
‘7.) Plaintiffs evidence established all of her allegations set forth in her verified application.
‘8.) The law cited in support of the application compels the determination that the Defendants acted contrary to the lease and criminally toward the property and toward Plaintiff.
‘9.) The evidence proved the lease was fraudulently procured.
TO.) Notwithstanding the evidence and the law the court determined that while the property was at risk and should be protected from further risk, that the perpetrators of the risk and damage could remain. This is internally inconsistent to the extent to be an abuse of discretion.
T1.) Plaintiff has no remedy at law to prevent further theft and destruction of her property, the only adequate remedy is to remove the Defendants from the emergency which they through their admittedly fraudulently and criminal acts created.
T2.) For the foregoing reasons the court is requested to vacate and make permanent injunctive relief, and to assist in fashioning an appropriate order permitting the removal of the Defendants [sic] property.
T3.) Should the court not vacate the Order it is Plaintiff s position that irreparable harm and prejudice have resulted from the ex parte communications initiated by Defendants and or their counsel with the Court which have resulted in transgressions of Judicial Cannons [sic] 1,2,3 [sic] as evidenced by the conduct of the proceedings.’
“39. After tire close of business, the court sent tire Respondent and Mr. Rank an electronic mail message regarding the Respondent’s motion.
“40. The Respondent responded to Judge Sutherland’s electronic mail message. The Respondent also sent the electronic mail message to Mr. Rank and Ms. Friedheim. In the message, the Respondent stated:
‘Upon reentry to the premises the defendants immediately commenced accusing my client of stealing their property, and have the police now detaining her in her own house over these fictitious allegations. My client has been polite and cooperative as always, and we have not refused access to the property. If anything is missing it would be by the Defendant’s [sic] hand because they retained keys in violation of the TRO to create such an opportunity. This additional behavior is creating an emergency situation.
‘The police would feel more comfortable with everyone being excluded from the premises until the matter is further sorted out by the court given the Bluhm’s [sic] behavior. The officer’s name is Officer Mahon (pronounced “man”). . . .
T request diat the court consider this a further emergency request that the court stay the modification of the order until further order of the court. What is developing is [a] retaliatory tactic by the defendants by commencing malicious and false allegations against the plaintiff to the police, though I don’t know the statute, I am certain that this is a crime to behave in such a manner. Surely the court did not intend to create such an opportunity. [sic]’
“41. On November 2, 2008, the Respondent sent an electronic mail message to Mr. Rank which provided the following:
‘The attached will be hand delivered to your clients today with tire assistance of the police, since you think tire law requires the same. We disagree and deliver the notice to avoid any procedural issue in that regard reserving all objections to the necessity of the same.
‘The court has no jurisdiction over any non-party including Bluhm Engineering, Inc. nor [sic] any of the other corporations. The court cannot create a lease to a corporation where none existed, it cannot malee up a new lease. Urging it to do so was improper and misleading. Your failure to mention that the Lease [sic] provided it was exclusively for residential occupancy by only Mr. & Mrs. Bluhm [sic] and their children has caused a miscarriage of justice, is believed in violation of the rule of law requiring that an attorney not misstate nor mislead the court as to facts or tire law.-
‘As you will see from the enclosed citations none of the corporations have any rights under the Kansas residential landlord tenant act, as confirmed by the federal court. Each of the corporations is a trespasser and demand is made that they leave with their property, but not touch nor damage nor taire any of the Plaintiff s property. They must arrange for this office to be present and the Plaintiff and the police will stand by to search ALL PROPERTY TO BE REMOVED to ensure there is no further theft nor misap propriation. Demand is made that your clients similarly vacate and the property be similarly searched.
‘We will plan on photographing all that is taken to make a record. To the extent the district court ordered otherwise it was mislead [sic] by you as to the exclusive residential nature of the lease which you should familiarize yourself with and immediately correct any misrepresentation that any corporation has any right to reside at the premises or store its property there. You would not want to misstate the facts nor the law to die court nor have your client’s corporation benefit from a fraud upon the court or a material concealment.
‘In the event your clients do not leave we will file our mandamus action in the Supreme Court and you can then explain why you mislead [sic] Judge Sutherland, as well as the full extent of any ex parte contact by yourself and your clients.
‘Also, I think your proposed journal entiy is grossly different than what the court ordered. All that the court addressed was that your clients were permitted to return to the property, the remainder of it is intact in that he continued to insist that they not do anything to touch, use, damage, remove, sell or dispose of Mrs. Friedheim’s property. No such language was set forth in your draft. You should recall that die court invited findings of fact and conclusions of law, as well as commanded language to protect die property from conduct by your clients. I will be forwarding you a draft of my own in die next day or two. I have a jury trial set for tomorrow, as well as a number of odier pleadings and motions to respond to immediately.
‘Please contact me to arrange for your clients to start removing their property. If tíiey are going to use “pods” the pods need to be removed while we are present to ensure nothing else is placed in them in our absence. In the meantime, in my and my client’s and the police absence, nothing is to be touched nor removed.
‘DEMAND IS MADE FOR THE RETURN OF ALL PROPERTY REMOVED FROM THE PREMISES BY YOUR CLIENTS, AS WELL AS BY OTHERS, INCLUDING THE 1800 POUNDS OF PROPERTY, ANY AND ALL ITEMS PAWNED OR PLEDGED, SOLD OR GIVEN TO ANYONE INCLUDING YOUR CLIENTS CHILDREN OR OTHERWISE. FAILURE TO DO SO WILL BE CONSIDERED THEFT AND CONVERSION.
‘IN THE EVENT YOUR CLIENTS FAIL TO IMMEDIATELY TENDER PAYMENT FOR THE UTILITIES THE SAME WILL BE CONSIDERED THEFT.
‘To date, attorneys fees in a substantial amount have been incurred for which your clients are at least equitably liable. Most of diese fees were incurred as result of their ex parte misrepresentations to the court. We will be moving for or suing for these fees as sanctions and expect joint and several liability given your complicity in the misrepresentations and ex parte conduct resulting in the Order.’
“42. On November 4, 2008, tire Respondent sent Mr. Rank an electronic mail message.
‘At your suggestion we served a Notice to Vacate tire premises for nonpayment of November rent and the other reasons set forth therein. As you know the corporations are not parties to the lawsuit and are trespassing. The court accordingly lacks jurisdiction to enter any order as to them until they are joined. Since the corporations have no lease I believe the police will assist in their removal if necessaiy though I hope that will not be necessary. We need to be present to inspect the property removed by the corporation to ensure that it does not commit theft as I anticipate that would be your clients argument should further theft occur. Will you be representing the corporations as well as the Bluhms?
‘When will your people and the corporations be ready to leave? If they will not commit to a date I will file a supplemental pleading, a Petition for their eviction at 4:35 tomorrow and serve it via fax on you, as well as request a hearing immediately as there will be no delay in service. Please let me know so I can arrange to be present with Mrs. Friedheim and the police to inspect the property to be removed, and attend the inspection of tire house.
We will also be filing a variety of damage claims. Will you be defending those claims? We will move to bifurcate the eviction from the damage claims and I assume you would be agreeable to doing so.’
“43. On November 5, 2008, Mr. Rank sent the Respondent an electronic mail message. The message provided as follows:
‘Our clients are still looking into available options at this point, so we can’t give you a definitive date when they will be prepared to move. They have no objection to you serving, via fax or delivery to my office, any additional pleadings which you anticipate filing.
‘Our firm has been retained to defend all claims alleged by your client in addition to claims which our clients will now pursue as a result of the wrongful removal from the residence and subsequent behavior of you and your client.’
“44. That same day, the Respondent responded to Mr. Rank’s message, as follows:
‘Your clients were removed from the house by court order, a portion of which survived the fraudulent representations you and your cilent [sic] made to tire court ex parte that a business was entitled to be located there, that being that they continue to be under contempt power if they do anything improper toward my client’s personaly [sic] or the realty, and that sir, is what brought us to the courthouse in the first place. Given that the. relief was necessary to stop conversion, theft and destruction of property your clients have no claim for “wrongful removal” or otherwise. The subject of your ex parte contact resulting in prejudice and further damage will be further explored as otherwise appropriate along with the perjuiy of your client.
‘If you look at the lease you will see that your clients promised to use the residence exclusively as a residence. There is no business lease and any and all businesses remain trespassers. The court has no authority to create a tenancy in a stranger to the lease and doing so is an abuse of discretion and an unconstitutional, void act, and the court’s decision to allow your people back in on condition that they do no more harm to the extent it took sympathy on them was likewise an abuse of discretoin [sic]. Furthermore, the court believed and still does that your client acted wrongfully toward her property, and your client admitted stealing and damaging it. Your client admitted so, which of course may give rise to a malpractice claim against you. Your client has no claims against either me or my client, and if he pursues such claims they will be viewed as defamatory and a matter of malicious prosecution for which the clients and all participating lawyers will be sued. While your clients may not have any money, you should and we’ll be happy to pursue you to collect it. As to subsequent behavior, all we have said in the proceeding is litigation privileged for which your client has no action, and with respect to the service of the notice to vacate, that was done at your insistence. Given your clients propensities it was necessary to enlist the police to assist.
1 suggest you cut tine rhetoric and tell your people to get another place to go ASAP. Since [sic] you have confirmed that they refuse to honor the demand for the premises, by [sic] 4:35 today we will ask the court to direct the sheriff to remove them.
‘The only alternative I can think of would be for them to post a bond secured by sufficient sureties to cover the entire value of the lease, the personal property and their rent. The bond would be in the amount of the full replacement cost and all contractual obligations. Since your clients represented that they had the money to buy the house it should be no problem for them to post such a bond.
T have asked you for lien waivers. Either provide the lien waivers or paid receipts for all services and material your client contends they supplied or had others supply tire property early today please so it is not necessary to file a count to quiet title. If your client has paid all workmen and materi-almen [sic] he should be able to produce the receipts. In any event he and Iris wife and their companies must supply a lien waiver today.
T will commence drafting the Petition.’
“45. On November 11, 2008, Mr. Rank wrote to the Respondent, detailing a settlement offer.
“46. That same day, the Respondent responded, rejecting Mr. Rank’s settlement offer.
“47. On November 12, 2008, the Respondent filed a motion for an emergency hearing and a request to hold the Bluhms in contempt of court. The next day, the Respondent filed a corrected motion for emergency hearing. The Court provided the Respondent with a date and time that was available on tire Court’s calendar for the hearing, November 20, 2008, at 2:30 p.m. However, tire Court did not set the healing on the motion at that time.
“48. The Respondent was required to contact Mr. Rank to see if that was an agreeable time for the hearing on the motion. The Respondent failed to do so. However, the Respondent failed to inform the Court that the Bluhms and their counsel had not agreed to that date.
“49. On November 13, 2008, the Respondent again sent Mr. Rank an electronic mail message. The Respondent’s message included the following:
‘This letter is written under full reservation of all rights.
‘The Bluhms unlawfully and contemptuously changed tire locks to the Friedlreinr residence in breach of the lease, as an act of adverse possession, and in violation of Kansas law. Demand is made that all locks be immediately restored to their former settings, at your client’s sole expense with proof that all locksmith charges have been paid in full, and that I be notified just as soon as that has been accomplished, and that the keys be provided to nry client.
‘Demand is made once again for lien waivers from all whom the Bluhms have had do any work on the premises or provide any materials. This is to include the company that Mr. Bluhm testified he hired for $3500 to alter the landscaping. Other than restoring the locks your clients are directed not to have any material man or laborer provide any services or provide any material which may result in the imposition of any lien.
‘Demand is made once again for the premises and all contents thereupon existing on August 31, 2008.
‘Mrs. Friedheim and her daughter need to obtain clothes from the house, and they will be returning with tire police as reasonably necessaiy to do so. As you know, there is now photographic evidence of the Bluhms’ contempt with respect to Mrs. Friedheim’s property.
‘The substantial ongoing increase in legal expense is something we have requested that the court tax jointly and severally to you and your clients as it has and would otherwise have been avoidable. Additionally, given the Bluhm’s [sic] threats it will be necessaiy to proceed in Mandamus for the injunctive relief if it is not granted in the district court. Your clients can stop the accrual of that expense by complying with demand that they arrange to immediately vacate. If they are not removed by the court by noon tomorrow a mandamus [sic] action will be filed as we are confident that equitable relief is imperative and it was error or an abuse of discretion to permit [sic] Bluhms back on the property, let alone to suffer delay in their removal.
‘You should not assist your clients’ perpetuation of criminal (false statements to the police, theft, malicious destruction of property, stealing utilities, trespass), fraudulent and tortuous acts (conversion, interference, defamation, etc.). Given the history and Bluhms [sic] intent to continue to act improperly, you are ethically obligated to withdraw if you cannot bring them within the law. There is no attorney client privilege in assisting or furthering the criminal or fraudulent acts of a client, and in fact there is joint civil, and criminal liability to the extent you do so. I cannot imagine any client is worth those exposures, or misrepresenting to the court the client would peaceably vacate shortly, but perhaps you view life and the practice differently.
‘The lease has terminated, notice has been given to vacate. Bluhms are trespassing. Bluhm’s [sic] settlement offer is rejected. Bluhm’s [sic] assertion of removal of jewelry is false and is denied. Mr. Bluhm has now made false statements to the police in addition to committing perjury. Bluhms have not suffered any actionable conduct by nor on behalf of the Plaintiff. Whether Bluhms [sic] leave voluntarily or peaceably or not they remain liable for substantial actual and punitive damages the full extent of which are not presently determinable and for which all rights are reserved.
‘It is my suggestion that the Bluhm’s [sic] find somewhere else to stay commencing today, and that you arrange with this office for the Plaintiff and police to be present when they remove their belongings. If drey will agree to leave today, I will encourage my client to permit a reasonable period (perhaps a week) within which to accomplish the removal of their belongings. If they do not peaceably surrender possession of the premises today we have and will ask the court to removed [sic] them and that any property not removed within 24 hours be deemed abandoned given that they have not held the premises for 3 weeks, sufficient time within which to have found another “option” and to have vacated the premises, knowing of their peril and deciding not to surrender tire premises.’
“50. At some point, the Respondent prepared an affidavit in support of his motion to recuse Judge Sutherland. [Footnote: While the affidavit appears to have been notarized on November 14, 2008, it is unclear whether the affidavit was prepared on November 14, 2008, or some other time. Further, it is difficult to establish from the Respondent’s billing record when the affidavit was prepared. However, the affidavit was never filed with the Court.] Ross C. Nigro, Jr. notarized the Respondent’s signature, stating:
‘Before me, a Notary Public for said county and state, personally appeared Stephen B. Small, known to me to be the person who executed the foregoing on this 14th November, 2008 stating the foregoing is true to the best of his knowledge and belief.’
At the healing on the formal complaint, the Respondent testified as follows regarding his practice in having documents notarized:
‘Q. [By the Deputy Disciplinary Administrator]... So the affidavit as it relates to the Judge is 30, Exhibit 30.
‘A. [By die Respondent] I don’t—here’s the problem with diis affidavit, okay, you’ll notice that the signature page does not have any text on it other than a signature block and a notarization. This is a generic notarized signature. This is attached to this. If the billing says I did this on this date then the notarization may be right, but I will tell you one tiling, Mr. Nigro does not stay late at the office, so if I want to have my signatures notarized by him, I have to present a signature for him to notarize before he leaves. And so he is not signing anything other than my signature. Now, if you look at page—
‘Q. •—I’m just—it’s been my experience with notaries you have to appear in front of them with the document, swear that it is and sign it, are you telling me that you leave a notary—
‘A. No. No.
‘Q. —a blank sheet?
‘A. No, I go to Ross and I say, here, I want you to notarize. I sign the thing and he notarizes. He notarizes my signature. But this signature could be attached to any document I might like to attach it to as my signature.
‘Q. So he’s—he’s—
‘A. He merely witnessed the signature, tie didn’t witness anything but my signature before—
‘Q. Okay.
‘A. —me appeared in person and signed this document is all he’s saying.
‘Q. When he says sign this document it is just respectfully submitted with— it’s just your signature block, that’s what was notarized?
‘A. That—what I would normally do if I had a document that wasn’t completed and I’d be working late in the night, if I wanted to have my signature notarized I would have my signature notarized. It’s not—it doesn’t—it doesn’t—it doesn’t—I don’t see that as a legal violation of anything.
‘A. This—this notary page on here may not even belong to this document. It does have page 12, and, you know—
‘Q. Sir, I will represent to you and the Panel I got the discs of your file that you presented and this is how it was presented with that signature page as part of the affidavit.
‘A. Oh, no, no, no, I’m not suggesting that you’ve—what I’m saying I may have had a loose notarized tiling in the office and attached it to it. I can’t tell you.
‘A. I’m not saying it wasn’t notarized on that date or isn’t my signature.’
“51. On November 14, 2008, the Respondent filed a corrected motion for emergency hearing on changed circumstances to hold defendants in contempt and for injunctive relief.
“52. On November 20, 2008, it became necessary for the Court to move the hearing from 2:30 p.m. that day to 1:00 p.m. that day. The Court’s assistant contacted the Respondent and Mr. Rank. The Court’s assistant learned that the Respondent failed to provide notice as required by K.S.A. 60-206(b) to Mr. Rank. Mr. Rank informed the Court’s assistant that neither he nor his clients were available for the hearing at the scheduled time. The Court requested that Mr. Rank and the Bluhms appear by telephone.
“53. On November 20,200[8], Mr. Rank filed an objection to the Respondent’s notice of hearing regarding the corrected motion for emergency hearing.
“54. That same day, the Court held a hearing on Ms. Friedheim’s motion. The Respondent and Ms. Friedheim appeared in person. The Bluhms and their counsel appeared by telephone. The Court concluded that the Respondent failed to give the Bluhms and their counsel proper notice of the hearing. However, during the hearing, Mr. Rank informed the Court that the Bluhms intended to move from Ms. Friedheim’s residence. In light of the Bluhms’ stated intention, the Court ordered the Bluhms to vacate Ms. Friedheim’s home by November 30, 2008, at 5:00 p.m.
“55. On December 8, 2008, the Respondent sent Ms. Friedheim an electronic mail message, making clear that she needed to make arrangements to pay his bill.
“56. On December 11, 2008, the Respondent wrote to Mrs. Friedheim detailing theories for suit against the Bluhms and requesting that she make arrangements to pay the legal fees incurred to date.
“57. On December 28, 2008, the Respondent filed an attorney lien with the Bluhms and Mr. Rank, making claim for the unpaid monies under tire lease agreement.
“58. On January 12, 2009, the Respondent filed a motion for leave to withdraw from the representation of Mrs. Friedheim. In the motion, the Respondent did not relate any reasons for the requested withdrawal. On January 30, 2009, the Court allowed the Respondent to withdraw.
“59. On February 12, 2009, the Respondent made a claim with Ms. Frie-dheim’s homeowner’s insurance. The Respondent sent Ms. Friedheim a copy of the letter and also sent Ms. Friedheim an additional demand for her to pay her outstanding attorneys fees.
“60. On April 30, 2009, tire Respondent wrote to Lewanna Bell-Lloyd, Ms. Friedheim’s attorney in another matter relating to her home. The Respondent’s letter provided as follows:
‘I am writing you in an attempt to avoid having to sue Mrs. Friedheim. Though it is not my preference to sue her, or to have to testify in such a suit, especially as the fact that foreclosure of a judgment against the Lea-wood property is appropriate, I will do so rather than lose over $32,000 by her fraud and dishonesty and breaches of contract.
1 represented Mary Friedheim with respect to claims arising from her rental of her Leawood south house to the Bluhms and did a very good job for her. The Johnson County District Court record indicates that you are her attorney with respect to her mortgage litigation. This letter concerns what will shortly be a judgment lien and foreclosure against the Leawood property which may be relevant to your litigation with USBank and the IRS. I prefer to not institute the litigation if at all possible.
‘These facts can be gleaned from the public record. Mrs. Friedheim leased her home to the Bluhms last August. The Bluhms then commenced destruction and damage to the improvements, refused to pay their rent, and according to Mary commenced stealing and selling her property. In an unprecedented move I was able to persuade the court to enter injunctive relief and extricate tire Bluhm’s [sic] in a fairly swift manner. Mary was ecstatic. The Bluhms then ex parted [sic] the court and were restored to the house based upon apparent assertions that she was a dangerous and threatening person and made a point of mentioning at trial that she was a convicted felon, that they operated a business in her home which she failed to disclose and otherwise. The court’s behavior was quite extraordinary. Prior to the hearing, the judge came into the witness room to inform us that we were being physically segregated because of allegations made by the Bluhms. He also called in the Sheriff to watch the door and keep the peace. I found this quite strange but when Mr. Getters [sic], Mrs. Frie-dheim’s boyfriend, arrived it became obvious that there was animosity and open hostility between Mr. Getters [sic] and Mr. Bluhm and the court reprimanded the two of them to not even look at one and the other.
‘At that point very extensive work was required to persuade the court and the Bluhm’s [sic] that Mrs. Friedheim should be restored to her property. This work included motion practice and extensive research and drafting and editing of a Writ/Appeal. The necessity for this was what Mrs. Friedheim characterized as ongoing theft of [sic] destruction to her property for which she had no adequate legal remedy, and difficulty occasioned by the Bluhms ex parte contact with the court. She characterized the house as being of a value of $1,000,000 and the personalty as in excess of $500,000.00. These representations as to her resources are now believed to have been false. As Mr. Bluhm testified there was little of value in her “antiques” that her auctioneer declined to take items to sale a [sic] lacking in value, and she apparently has no equity in the realty based upon the recorded lien interests.
‘I understand that there is a foreclosure action pending to be tried in October from a recent docket entry in the case in which you represent Mrs. Friedheim. I would think you would be very careful in advancing a homestead defense which would be contrary to fact and law.
‘Mrs. Friedheim engaged in fraud to steal over $32,000 in professional services from me by deceit. She pledge [sic] an art glass lamp she represented to be of a value of $20,000 the actual value of which is substantially less than $2,000, [sic] she represented that she was an antique dealer at the Mission Antique Mall. She represented she had a job and would be making payments, and that she was selling antiques to raise money, that she would pledge additional antiques/art to secure her obligation. She represented that her boyfriend pays her bills and would be helping her pay for her representation: She failed to perform any of her promises, though a trip to the Mission Road Antique Mall confirmed that she was engaged there as an antique dealer.
‘I had known her husband from his managerial days at Channel 62 in the 1980’s and knew her through a mutual acquaintance who referred her to my office. She made other representations to me that gave me comfort in commencing and continuing to work for her. Fortunately for her, I restored her to her home and personal property and stopped the damage from accruing. Mr. Bluhm had cut down her trees, taken down her gates, interfered with her wiring, damaged and destroyed her property, his dogs and cat had fouled tire house, he was ordered to stop sleeping on her linens in her bed, to stop using her personal property as his own. She recovered possession.
‘In reliance upon her representation work was performed. Once I recovered her home and belongings for her, she then enlisted her boyfriend to attempt to strong arm my office for documents we obviously could not release to him without her written signature.
‘In six months since hiring this office and four months since work was completed she has paid this office nothing. She has not paid one penny and refused even to discuss her bill other than to acknowledge she owes it. Payment is necessary to avoid legal action.
T have offered to reduce our bill, to accept substitute and additional collateral, to accept payments, and to see whatever other arrangement she may believe reasonable. For the last five months she has refused to respond with any payment or suggestion. I might add that she represented her boyfriend would help her pay th'e bill and he stated he would do so but also has not paid a dime. I cannot forebear collection any longer.
‘I am going to hire an attorney, sue Mrs. Friedheim and her boyfriend on the account and if my lawyer so advises also for fraud; and her boyfriend for assault and false imprisonment as the intentional tort claims are non-dischargeable. When a judgment is entered I will foreclose the judgment lien against tire house as it is not exempt under homestead, and then I would expect the mortgage companies will bid their interest and I will then be paid in full and diat will be die end of the litigation except as to any deficiencies.
‘I will also tell you this. Mrs. Friedheim has a habit and practice of utilizing Mr. Getters [sic] and others as a “tough guy” to threaten and intimidate. She did that with Mr. Bluhm, and she also did that to me. Mr. Bluhm apparently exparte’d [sic] the court about her conduct which resulted in the court dissolving the injunction. If she sends anyone, whether Mr. Get-ters [sic] who was advised to leave the office before the police would be called and never to return to my office, her north town Realtor whom she utilized to intimidate the Bluhms, or anyone else, around me again to act in a “tough” manner I will not hesitate to contact tire police.
‘Please call me to discuss payment arrangements. If this matter is not worked out I will have my attorney file suit and a lis pendens, proceed to judgment and foreclose the judgment lien or sell it to any of the mortgagees before the trial in your case.’
“61. On June 23, 2009, a collection attorney sent a letter to Ms. Friedheim in an attempt to collect the Respondent’s unpaid attorneys fees.
“62. On August 12, 2009, the Respondent filed suit against Ms. Friedheim in an attempt to collect die unpaid attorneys fees in die Johnson County District Court, styled Small v. Friedheim, case number 09CV07311.
“63. On August 25, 2009, Ms. Friedheim filed a complaint against the Respondent. Ms. Pearman investigated die complaint.
“64. On February 3, 2011, the Johnson County District Court in Small a Frie-dheim, denied the Respondent’s motion to continue the trial and granted die Respondent’s motion to dismiss, at Respondent’s cost.
“65. After Ms. Pearman completed die investigation of Ms. Friedlieim’s disciplinary complaint, the Deputy Disciplinary Administrator informed die Respondent diat lie was eligible for die attorney diversion program. The Respondent declined to accept die terms of die diversion program.
“66. On August 24, 2011, die Deputy Disciplinary Administrator filed the formal complaint in die instant case. In the formal complaint, die Deputy Disciplinary Administrator alleged diat die Respondent violated KRPC 1.5, KRPC 1.6, and KRPC 8.4.
“67. KRPC 1.5 provides as follows:
‘(a) A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) die time and labor required, die novelty and difficulty of die questions involved-, and die'skill requisite to perform the legal service properly;
(2) die likelihood, if apparent to the client, that the acceptance of die particular employment will preclude other employment by die lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of tire professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
‘(b) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.
‘(c) A lawyer’s fee shall be reasonable but a court determination that a fee is not reasonable shall not be presumptive evidence of a violation that requires discipline of the attorney.
‘(d) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (f) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in die event of setdement, trial or appeal, and the litigation and other expenses to be deducted from die recovery. All such expenses shall be deducted before the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of die matter and, if there is a recovery, showing the client’s share and amount and the method of its determination. The statement shall advise die client of die right to have die fee reviewed as provided in subsection (e).
‘(e) Upon application by the client, all fee contracts shall be subject to review and approval by the appropriate court having jurisdiction of the matter and the court shall have the authority to determine whétiier the contract is reasonable. If the court finds the contract is not reasonable, it shall set and allow a reasonable fee.
‘(f) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) Any fee in a domestic relations matter, the payment or amount of which is contingent upon die securing of a divorce or upon the amount of alimony, support, or property settlement; or
(2) a contingent fee for representing a defendant in a criminal case; or
(3) a contingent fee in any other matter in which such a fee is precluded by statute.
‘(g) A division of fee, which may include a portion designated for referral of a matter, between or among lawyers who are not in the same firm may be made if the total fee is reasonable and the client is advised of and does not object to the division.
‘(h) This rule does not prohibit payments to former partners or associates or their estates pursuant to a separation or retirement agreement.’
“68. The Deputy Disciplinary Administrator argued that billing more tiran $32,000 for the representation was unreasonable. She also argued that having one billing rate for day time hours and another billing rate for after hours when the Respondent appears to work more after regular business hours is also unreasonable.
“69. The Hearing Panel rejects that argument that billing more than $32,000 for the representation was unreasonable. Ms. Friedheim was a demanding client with an urgent need for quick action. While the Respondent’s chosen method of representing Ms. Friedheim was unconventional and not initially effective, the Respondent appears to have worked the hours and performed the work he billed for.
“70. Regarding the Respondent’s billing rates, it is not the Hearing Panel’s purview in hearing attorney disciplinary cases to ensure that clients negotiate low hourly rates. While the Respondent’s attorney fee rate may not have been a good deal, the Hearing Panel is unable to conclude, by clear and convincing evidence, that the Respondent’s fee in this regard was unreasonable.
“71. In reviewing the Respondent’s billing records, it is clear that the Respondent bills his clients in one-quarter increments. Clearly, it would be highly unlikely for each episode of the Respondent’s work on this case to have occurred in quarter hour increments.
“72. In In re Scimeca, 265 Kan. 742 (1998), the Respondent engaged in the same billing practice. There, the Court stated:
We agree . . . that billing for quarter hours is not a violation if that time is spent on a client’s business. The violation is in not spending the time billed to the client on the client’s business. Here, respondent clearly billed for time not spent in representing the client. He concedes that his billing practices were improper, and although he claims it was done in ignorance, it is nevertheless a violation of the MRPC.’
“73. At the formal hearing, in his opening statement, the Respondent stated:
'. . . And I endeavor to give value for the time I charge my clients. In other words, they get time they’re not charged for, I don’t sit down and say I’m going to round up an hour or half hour or quarter hour. There may be minutes rounded, a matter of two or three minutes rounded or maybe rounded down to zero, but it’s not a question of adding a quarter hour to every charge and it’s— it’s—that’s—it’s a fiction, there’s no evidence of that.’
Additionally, die Respondent testified as follows regarding his quarter hour billing:
‘MR. SMALL:... Now, I understood from tlie opening statement there’s an issue in Kansas about quarter hour billings. The bill that I sent her, and I have the work in progress report for the overall bill, the final bill as well. The final bill, work in progress report shows 17 and a half hours written off of the bill. In other words, 17 and a half hours of time that were expended but not charged at all and there are 40 actual entries. Now, if one were to be cynical and say, well, you billed a quarter of an hour too much, the last quarter of an hour on each time entry you s'houldri’t .-have billed, that would be 10 hours. So to the extent there is a concern that Mrs. Frie-dlieim may have been overcharged for 10 hours, you seelhis, and I’ll mark it as 49, this overall progress report, you’ll see that actually there was more than a quarter hour taken off on average from every entry, not lime added onto it. Well, there maybe, and I don’t know what the case was or what the case is, but the fact of tíre matter is, I think what it-should be boiled down to is, did the lawyer spend the time for which he charged. I’m sorry?
‘CHAIRMAN SHARP: I don’t think there was any question.
‘MR. SMALL: Okay. I think the question should be did this guy really spend 100 hours working on this case, number one, or did he really spend 90 hours and charge for 100 hours because the increments and that’s not the case here. There wasn’t an inflation. There was a deflation. As I said, I don’t want to overcharge a client. You know, happy clients send you more clients, an unhappy client makes you worry if you’re going to wake up tomorrow. So I think that that’s one part of the bill issue.’
The Hearing Panel was not presented with clear and convincing evidence that the Respondent billed for time not provided, thus, the Hearing Panel does not conclude that the Respondent violated KRPC 1.5 in this regard.
“74. Accordingly, the Hearing Panel concludes that the clear and convincing evidence was not provided to establish that the Respondent violated KRPC 1.5.
“75. KRPC 1.6 provides:
‘(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the -representation, and except as stated in paragraph (b).
‘(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) To prevent the client from committing a crime; or
(2) to comply with requirements of law or orders of any tribunal; or
(3) to establish a claim or defense on behalf of the lawyer in a.cont-roversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.’
“76. In a similar case, In re Bryan, 275 Kan. 202 (2003) [Footnote: Ironically, the Respondent was involved in Mr. Bryan’s case.], the Court found a violation of KRPC 1.6 when the Respondent sent a letter to his client’s subsequent attorney. After Mr. Bryan terminated the attorney-client relationship and after the client retained subsequent counsel, Mr. Bryan sent the new attorney a letter which contained the following paragraphs:
‘The point of this letter is to tell you that I may have to defend myself against your client’s accusations by making public certain things I know about her which will damage her credibility in the extreme. I have never discussed them with you, or Rachelle, because I was trying to get out of representing her widiout needlessly hurting her sister’s feelings or damaging Helene’s reputation, but I can’t do that now. I fired your client in March of 1998, but I never told you why. Attached is the termination letter from my office to your client, explaining the reasons why I felt I had to fire Helene. There are other good reasons which I did not put in die letter, but also are extremely damaging to her credibility and admissible in court. If I have to respond to any allegations made against me by Helene, the diings in that letter are going to have to go public, which means they will be in die possession of the attorneys for Stephen Small. ... I can’t think of any reason why I shouldn’t sue Helene for defamation and put a stop to diis, except that her case and Marla Worthington’s are consolidated and that might hurt my client too. That’s the problem.
‘You need to tell Helene to shut her mouth, because if she doesn’t she’s going to destroy her own case against Steve Small, and maybe Marla Worthington's case too. I will, of course, move the court to “unconsolidate” the cases based upon diis conflict, and I will tiien explain to die Court and Jay Barton that Ms. Eichenwald has now accused me of stalking her at her place of employment. This will immediately tip the odier side that something good is there for Steve Small, and I can be deposed about it since I was not her counsel at the time of die incident.’
Additionally, Mr. Bryan sent a letter to his former client’s employer. That letter included the following:
‘Additionally, I happen to know diat Ms. Eichenwald has a history of making false claims such as tiiose she is malting against me, and this will all come out in court. During the seven years that I have known Ms. Eichenwald, there has rarely been a period of time when she didn’t claim diat someone was after her, following her, or stalking her. One particularly telling example of this trait is a police report Ms. Eichenwald filed with the Prairie Village Police Department in 1996. In this police report, Ms. Eichenwald seriously claimed that while she was away from home, some man must have stood at her front door and masturbated on her front door window, in front of passing traffic and four feet off the ground. The police officer and I botii tried to tell her that this was impossible and ridiculous, but she insisted that this was what happened. Claims like these malee Ms. Eichenwald feel important because they increase concern for her among odiers, and get her more attention. Ms. Eichenwald likes that very much, and does whatever she can to insure it continues.-Believe me, there is not now, nor has there ever been, anyone stalking or harassing Ms. Eichenwald.’
“77. The Hearing Panel, in In re Bryan, thoroughly analyzed Mr. Bryan’s statements. The Hearing Panel, in that case, concluded as follows:
‘8. First, the disclosures were not made to establish a claim or defense in any civil or criminal case. At the time the Respondent made the disclosures to Mr. Grissom, there was no pending action between the Respondent and Ms. Eichenwald.
‘9. Second, the disclosures were not made to respond to allegations in any proceeding. Certainly, at the hearing on this matter, the Respondent argued that the disclosures were made in response to allegations made by Ms. Eichenwald and in an attempt to protect his reputation in the legal community. However, there was no “proceeding” as required by KRPC 1.6(b). The disclosures were simply made to embarrass Ms. Eichenwald before her new attorney.
TO. Because tire disclosures made to Mr. Grissom were not necessary to establish a claim or defense or to respond to allegations in any proceeding, the Hearing Panel concludes that the Respondent revealed information relating to the representation of Ms. Eichenwald in violation of KRPC 1.6(a).
‘Letter of September II, 1999, to Kris Allen and Jennifer Knipp
Tl.On September 11,1999, the Respondent wrote a letter to Nordstrom store manager Kris Allen and Nordstrom Loss Prevention Manager Jennifer Knipp. Including a specific example, the Respondent disclosed to Mr. Allen and Ms. Knipp that [Ms. Eichenwald] has a history of making false claims and accusations of stalking.
T2. The Respondent’s disclosure that Ms. Eichenwald has a history of making false claims amounts to revealing information relating to the representation of Ms. Eichenwald. And, because the disclosures were not authorized by KRPC 1.6(b), the Hearing Panel concludes that the Respondent violated KRPC 1.6(a).’
“78. The Court, in In re Bryan, upheld the Hearing Panel’s conclusions, as follows:
‘In reviewing tire conclusions of law of the panel, it is difficult to conclude that Bryan’s disclosures to Grissom and the Nordstrom employees were reasonable; therefore, they constituted violations of KRPC 1.6. We note that the panel relied upon the erroneous belief that a formal proceeding was necessary before disclosures in self-defense could be made under KRPC 1.6. Under the circumstances, however, the disclosures to both Gris-som and the Nordstrom employees exceeded that which was reasonably necessary for him to defend against Eichenwald’s allegations.’
“79. In this case, the Respondent, like Mr. Bryan, wrote a letter to subsequent counsel that was not necessary. However, the statements in the Respondent’s letter did not go as far as the statements in Mr. Bryan’s letters. Accordingly, the Hearing Panel concludes that while the Respondent’s letter to Ms. Bell-Lloyd was not necessary, it does not constitute clear and convincing evidence that the Respondent violated KRPC 1.6.
“80. KRPC 8.4 defines professional misconduct in a number of different ways. According to KRPC 8.4(d), ‘[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(g) provides that ‘[i]t is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’
“81. The Respondent violated KRPC 8.4(d) and KRPC 8.4(g) before and during the disciplinary process. The Respondent used threats and intimidation tactics against Mr. Rank, Judge Sutherland, the attorney investigator, and the Deputy Disciplinary Administrator. Further, during the disciplinary hearing, the Respondent attempted to intimidate Ms. Friedheim.
“82. The Respondent’s principal litigation tactic seems to be to make threats, utilize intimidation tactics, and blame everyone else in the litigation process from opposing counsel to the judge. The Hearing Panel provides the following as examples of the Respondent’s misconduct in this regard:
“83. On October 28, 2008, the Respondent sent an electronic mail message to Judge Sutherland, stating in material part:
T request that the court consider this a further emergency request that the court stay the modification of the order until further order of the court. What is developing is retaliatory tactic by the defendants by commencing malicious and false allegations against the plaintiff to the police, though I don’t know the statute, I am certain that this is a crime to behave in such a manner. Surely die court did not intend to create such an opportunity, [sic]’
“84. On October 28, 2008, the Respondent filed a motion to reconsider and vacate tire order of October 27, 2008, ‘reseizing defendants of realty and motion for disqualification or recusal.’ The Respondent suggested in paragraph 13 that the Court had violated the Kansas Code of Judicial Conduct. The Respondent made specific allegations of misconduct against the judge. For example, tire Respondent stated:
‘The Plaintiff cannot have confidence in this court given the court’s fear of being burned and then adjudicating the proceedings based upon a fear of granting relief requested and the court determine necessary under the facts and law. The Defendants did not present any evidence to controvert die verified Application for relief, and the Plaintiffs evidence should have lead [sic] the court to make the relief permanent. This is not to say that the Plaintiff would lack confidence as to a mere error at law or other appealable issue, but the court’s personal feelings about the circumstances, fear of being burned, is something which would indicate personal interest in the outcome or how the court’s ruling would be viewed, and such should have no bearing in a fair disposition of litigation.
‘The court lacked impartiality in advocating, indeed conduct [sic] legal research to subtrovert its own grant of injunctive relief. . . .
‘The court was improperly prejudiced by the Defendants. When Plaintiff inquired what else the Defendants said, the court hostilely indicated nothing; however, it appears that the court was unaware of the prejudice whatever the Defendants may have said as evidence by the sequestering of the parties and the hostility of the court toward tire Plaintiff.
‘. . . The court improperly expended its efforts to advocate the law on behalf of tire Defendants, and then did so relying on two federal decisions, rather than the law presented and the evidence presented. In acting as tire Defendants [sic] counsel the court’s judgment was not a product of impartiality.
‘. . . Plaintiffs [sic] felt harassed by the court on the following grounds: (1) the court’s expression of suspicion of Plaintiffs class of claim; (2) the court’s fear of being “burned” if relief were granted; (3) the need for rules of engagement and (4) the command of sequestration of the parties; (5) the court’s screaming at counsel twice, tire first “NO” at tire bench, and tire second denying any other ex parte statements were considered, [sic] (5) the intimidating, hostile and threatening telephone message. Whether or not this animus was precipitated by any cause enumerated specifically in the Cannon [sic] tire effects of the screaming, hostility, distrust, denigration, segregation, etc. were in fact harassment just as improper. . . .
‘The demeaning, harassing, hostile attitude engendered by the Defendants ex parte communication required disqualification, as did the court’s fear of reprisal or being burned by granting injunctive relief at the outset. Further, the court’s hyper-vigilance engendered by the Defendants which precipitated comments such as the emotions running high, etc., evidence the court was persuaded through the ex parte communications that the Defendants were victimized by the Order. Finally, it was humiliating to be screamed at by the court. If the court had animus against a party, the court should recuse itself.’
“85. On November 2, 2008, the Respondent sent an electronic mail message to Mr. Rank, stating:
‘In the event your clients do not leave we will file our mandamus action in the Supreme Court and you can then explain why you mislead [sic] Judge Sutherland, as well as the full extent of any ex parte contact by yourself and your clients.’
“86. On November 5, 2008, the Respondent sent another electronic mail message to Mr. Rank, stating:
. . Furthermore, the court believed and still does that your client acted wrongfully toward her property, and your client admitted stealing and damaging it. Your client admitted so, which of course may give rise to a malpractice claim against you. Your client has no claims against either me or my client, and if he pursues such claims they will be viewed as defamatory and a matter of malicious prosecution for which tire clients and all participating lawyers will be sued. While your clients may not have any money, you should, and we’ll be happy to pursue you to collect it.’
“87. On November 13, 2008, the Respondent sent yet another electronic mail message. The Respondent stated:
‘The substantial ongoing increase in legal expense is something, we have requested that the court tax jointly and severally to you and your clients as it has and would otherwise have been avoidable. Additionally, given the Bluhm’s [sic] threats it will be necessary to proceed in Mandamus for the injunctive relief if it is not granted in the district court. Your clients can stop the accrual of that expense by complying with demand that they arrange to immediately vacate. If they are not removed by the court by noon tomorrow a mandamus [sic] action will be filed. . . .
‘You should not assist your clients’ perpetuation of criminal (false statements to tire police, theft, malicious destruction of property, stealing utilities, trespass), fraudulent and tortuous acts (conversion, interference, defamation, etc.). Given tire history and Bluhms [sic] intent to continue to act improperly, you are ethically obligated to withdraw if you cannot bring them within the law. There is no attorney client privilege in assisting or furthering the criminal or fraudulent acts of a client, and in fact there is joint civil, and criminal liability to the extent you do so. I cannot imagine any client is worth those exposures, or misrepresenting to the court tire client would peaceably vacate shortly, but perhaps you view life and the practice differently.’
“88. On March 22, 2011, the Respondent sent the Deputy Disciplinary Administrator an electronic mail message. In tire electronic mail message, the Respondent accused Ms. Pearman of wrongdoing.
‘In reading Kansas Supreme Court disciplinary decisions it is apparent the court is very considerate in deliberating these matters; however, the court also apparently adopts findings of fact and conclusions of law resulting from the investigative process and ensuing panel hearing, and may adopt recommendations of the panel and of your office. . . . The court’s reliance is of importance because where tire underlying investigative report is flawed, the product of bias, interest, prejudice or otherwise amounts to a due process violation, substantial prejudice and injustice will result commencing with the docketing of the report, and the exposure of the attorney to public scrutiny unfairly where the allegations are unsustainable.... I am not suggesting that your office should not take appropriate action, what I am suggesting based in part on what is mentioned herein, is that [sic] is premature to take action other tiran (a) permitting a comprehensive response for further consideration and if it is still believed that there are remaining issues (b) for re-assignment of an investigator at this time given the prejudicially flawed investigative report.
‘In this case the investigative findings are contradicted by file material not referenced by the Investigator. The material is substantial, credible and includes written statements and admissions of Mrs. Friedheim which contradict her positions taken in her complaint with the investigator [sic]. There are also some serious misstatements by tire investigator in the report.
‘... .These are but a few examples showing how and why the conclusions reached by the investigator are colored rather tiran neutral and the conclusions are felt to be unfounded.
‘. . . As such die investigative report is materially false with respect to a significant factor, and that is tire availability mitigation. Given this proceeding is having a substantial impact on me personally, and may professionally and reputationafly, I believe that there is a question of fairness and impartiality and bias raised by the investigator’s false statements concerning noncooperation.’
“89. During the disciplinary proceedings, the Deputy Disciplinary Administrator and the Respondent deposed Ms. Pearman, on November 2, 2011, and November 7, 2011. During the first day of the deposition, the Respondent accused Ms. Pearman of including false statements in her investigative report, in violation ofKRPC 3.3.
‘MR. SMALL: Well, I would just—as we discussed, I have some concerns under Rule 3.3 and some related rules that there are some matters that were perhaps innocently included in the investigative report at the time based upon the information available which may subsequently have been learned on further investigation or on notice not to be as they appeared initially. And I just want to make sure that to the extent there’s some issues arising from falsehoods uttered by Mrs. Friedheim that my position is that the record should be purged of those false statements.
‘MS. KNOLL: Okay. And like I said and like we talked on the phone, that is something that needs to be brought up in a motion to the panel. The purpose—the scope of the order for today is to depose Ms. Pearman, not to argue whether or not there’s probable cause, not to argue if there’s been a violation of 3.3, not to argue any of those tilings.
‘MR. SMALL: I’m not suggesting there’s a violation of 3.3. What I’m saying is that I think our obligation as lawyers under 3.3, 3.4, 8.3, and 4, 1.2(d) is not to inject information or evidence, testimony, and exhibits which we learn are not true into a proceeding because that would be detrimental to the integrity of the process itself. And in the context of probable cause determinations, if already there are some erroneous statements in the record and the exhibits that have been filed then I think there is a duty under 3.3 to taire remedial action to preserve the integrity of the proceeding. That’s my concern. And that I think the rules that—and, I mean, I think the rules that—that are implicated in that and I’m not accusing anyone of violating any rules or intending to violate any rules or knowingly saying they’re injecting anything that they believed was false. I’m not saying that. It is the respondent’s contention that Mrs. Friedheim is engaged in a gross course of misconduct and misrepresentation about a number of things starting with line one on her complaint where she said she traded a lamp.
‘Q. [By the Deputy Disciplinary Administrator] So this is what you were talking about that you were discussing with him?
‘A. [By Ms. Pearman] Right. In fact, there was—you know, diere was a great deal of time early on with Ms. Friedheim sitting diere and she expressed to me being physically exhausted and having to sit there all night while he took numerous breaks to go outside and smoke cigarettes and keeping her there all night. I thought that was an unusual scenario. I don’t see Üiat—plus the extra charge for that of $100 an hour more.
And I found it unusual that subsequent to the TRO being entered on a Saturday he showed up at her house. And I don’t know that he was requested to be there. Showed up with his dogs. I thought that was unusual. And according to what I was told by him, as well as odiers, began going through records that belongs to the Blooms [sic], in fact. Getting into their filing cabinets because they had at this point—
‘MR. SMALL: I have to object to all of this as hearsay and hearing on hearsay, in addition to being very likely in violation of Rule 3.3. There is no—you did not witness—and my objection is you did not witness me going through anybody’s property at any time, did you ma’am?’
After die first day of the deposition, the Deputy Disciplinaiy Administrator filed a motion regarding difficulties that developed during the deposition.
“90. The next day, November 4,2011, the Respondent filed a 24 page response to the motion. In his response, the Respondent asserted:
‘6.) Paragraph 22 of the Formal Complaint (Corrected) continues:
On February 3, 2011 Complainant’s pro se Motion to Dismiss was granted. The case filed by Respondent against Complainant for fees was dismissed.
‘Respondent informed the Deputy Disciplinary Administrator that the assertion set forth in the Formal Complaint and the Formal Complaint (Corrected) set forth at paragraph 22 is factually inaccurate. Rather [sic] agree to withdraw the allegation, the Deputy Disciplinary Administrator responded that tire issue should be taken up at the hearing. Due to Jayne Pearman’s unavailability for the hearing a deposition was set for November 2, 2011. Rule 3.3 requires the Disciplinary Administrator to purge this action of facts and allegations known to be false, to refrain from calling witnesses who would commit perjury such as Mrs. Friedheim, and to correct the misapprehensions of the tribunal with respect to any and all false accusations and evidence, [sic]
‘B.) Respondent requests tire Disciplinary Administrator be admonished to refrain from eliciting hearsay, speculation or conjecture by Ms. Pearman or any other witness.
‘C.) Respondent requests that the Disciplinary Administrator be order [sic] to take such remedial action as is required pursuant to Rule 3.3 with respect to the complaint, her exhibits, and otherwise in all regards.
‘D.) Respondent requests that the Disciplinary Administrator be reminded that Rule 226 in its entirety applies to her and her attorney witnesses as does abiding by the Orders entered by the Panel.’
“91. The Hearing Panel concludes that the Respondent’s use of threats and intimidation tactics with respect to Mr. Rank, Judge Sutherland, Ms. Pearman, and the Deputy Disciplinary Administrator resulted in prejudice to the administration of justice and, additionally, adversely reflects on the Respondent’s fitness to practice law. As such, the Hearing Panel concludes that the Respondent repeatedly violated KRPC 8.4(d) and KRPC 8.4(g) in this regard.
“92. The Respondent’s practice with regard to notarizing documents is troubling to the Hearing Panel. The Respondent testified that when he seeks to have his signature notarized by Mr. Nigro, he does not take the finished document to Mr. Nigro, swear to the truth of the contents of the document, and then sign the document. Rather, the Respondent simply provides Mr. Nigro with a signature page, signed by the Respondent, and requests that Mr. Nigro notarize the signature.
"93. Pursuant to K.S.A. 53-107,
‘Notaries shall have authority to (1) Take acknowledgments; (2) administer oaths and affirmations; (3) take a verification upon oath or affirmation; (4) witness or attest a signature; (5) certify or attest a copy; (6) note a protest of a negotiable instrument; and (7) perform any other act permitted by law.’
‘‘94. In this case, Mr. Nigro notarized the Respondent’s signature, stating:
‘Before me, a Notary Public, for said county and state, personally appeared Stephen B. Small, known to me to be the person who executed the foregoing on this 14th of November, 2008 stating the foregoing is true to the best of his knowledge and belief.’
However, the Respondent failed to provide Mr. Nigro with the ‘foregoing.’ The Respondent simply took the signature page, notarized by Mr. Nigro, and attached it to the affidavit after die affidavit was complete.
“95. The Respondent’s conduct undermines the purpose of having a document notarized, is prejudicial to the administration of justice, and reflects adversely on his fitness to practice law. As such, the Hearing Panel concludes that the Respondent again violated KRPC 8.4(d) and KRPC 8.4(g).
“96. Next, on April 30, 2009, the Respondent wrote to Ms. Bell-Lloyd, Ms. Friedheim’s attorney in a different action. The Respondent’s letter was not a demand letter, but rather a personal attack against Ms. Friedheim. The issuance of die Respondent’s letter to Ms. Bell-Lloyd was prejudicial to the administration of justice and adversely reflects on the Respondent’s fitness to practice law. Thus, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d) and KRPC 8.4(g) by sending the letter to Ms. Bell-Lloyd.
“97. Finally, the Respondent’s cross-examination of Ms. Friedheim was permeated with personal and unprofessional questions apparently intended to be more confrontational and combative than designed to elicit information and responses favorable to die Respondent.
“98. There were serious issues concerning die credibility of Ms. Friedheim who had been charged with five felony counts of identity theft in Johnson County District Court and in a plea agreement pled guilty to one felony count. Court records of Ms. Friedlieim’s charges and guilty plea to felony identity dieft were admitted into evidence, so with little difficulty die Respondent could have effectively and totally undermined Ms. Friedheim’s credibility.
“99. Instead, Respondent chose to be confrontational, to digress into irrelevant facts, to argue witii the witness, and to repeat the same questions over and over again. The net result of the Respondent’s two hour battering of Ms. Friedheim on cross-examination was to evoke sympathy for her and to focus attention away from her demonstrable questionable credibility.
“100. The Respondent’s cross-examination of Ms. Friedheim was not as excessive or egregious as the punitive examination before the Court in State v. Phelps, 226 Kan. 371 (1979). Nevertheless as was the situation in Phelps, the Respondent appeared to be more interested in personally punishing the witness than in attacking her credibility, and much of what the Supreme Court had to say in Phelps is applicable here:
‘He called the defendant, Carolene Brady, as his witness, had her declared hostile, then proceeded to cross-examine her for 3 or 4 full days. The record discloses that his cross-examination was abusive, repetitive, irrelevant, and represented a classic case of “badgering” a witness.’ Phelps, 226 Kan. at 373.
“101. Much of the Respondent’s cross-examination of Ms. Friedheim consisted of tlie reading of passages from documents already admitted into evidence, lengthy recitations of facts and comments without any question, and arguments that Ms. Friedheim’s oral testimony contradicted previous statements on minor issues when it really did not.
“102. This disreputable tactic has been prohibited by our Supreme Court since its decision in Mesecher v. Cropp, 213 Kan. 695 (1974), which held as follows:
‘At that point counsel set out to impeach her by reading questions and answers from her deposition. Plaintiffs’ counsel soon objected, but was overruled. There followed a reading of questions and answers from the deposition, consuming six pages in the record, without any pretense of a question to the witness on the stand, until finally the trial court intervened:
“THE COURT: Mr. Turner, I am about to stop your examination of this witness on her deposition. As I would understand it, the proper province is to examine her on testimony given here today, and you are basically limited to that. You can go into her deposition if there is a conflict between her testimony and her deposition, but we are just going on and on here in areas where it appears to me the deposition is completely consistent with the essence of the testimony given today.”
‘The trial court obviously thought at this point that such use of a deposition in a purported cross-examination was improper, and we agree.
‘Counsel is entitled to impeach any witness by showing prior inconsistent statements, and where they are contained in a deposition he may cross-examine the witness about the deposition. Additionally, as pointed out in the discussion above, he is also entitled to use the deposition of a pariy as substantive evidence, by reading into evidence tire admissions contained therein as part of his case-in-chief. Here the court found no inconsistent statements in Mrs. Mesecher’s deposition; hence the proper method of using the deposition was for the defendants to introduce it during their case-in-chief. The course actually employed undoubtedly gave the impression to the jury that, at least in counsel’s view, the witness was lying. Where successful, and where the witness is a party, such tactics can be devastating.
‘In the post-trial proceedings it was this tactic which the trial judge raised on his own motion as possibly constituting “misconduct of counsel.” ’ Mesecher, 213 Kan. at 699-700.
“103. The Hearing Panel concludes that the Respondent’s cross-examination also resulted in prejudice to the administration of justice and adversely reflects on his fitness to practice law. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d) and KRPC 8.4(g) in his cross-examination of Ms. Friedheim at the formal hearing.
“American Bar Association “Standards for Imposing Law Sanctions
“104. In malting this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’ ”). Pursuant to Standard 3, die factors to be considered are the duly violated, die lawyer’s mental state, die potential or actual injury caused by the lawyer’s misconduct, and die existence of aggravating or mitigating factors.
“105. Duty Violated. The Respondent violated his duty to the public and to the legal profession to maintain his personal integrity.
“106. Mental State. The Respondent knowingly violated his duties.
“107. Injury. As a result of the Respondent’s misconduct, the Respondent caused actual or potential injuiy to his client, die legal system, and the legal profession.
“108. Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, die Hearing Panel, in this case, found the following aggravating factors present:
“109. Dishonest or Selfish Motive. The Respondent’s misconduct in diis case was selfish. Ratiier dian professionally representing his client and, later, himself, the Respondent engaged in personal attacks on Mr. Rank, Judge Sutherland, the attorney investigator, the Deputy Disciplinary Administrator, and Ms. Friedheim. The Respondent’s selfish approach to die representation of Ms. Friedlieim and himself is an aggravating factor in this case.
“110. A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct. The Respondent’s pattern includes personal attacks on those who disagree with his opinion of evidence or other matters. Specifically, in die underlying case and in die disciplinary case, the Respondent attacked Mr. Rank, Judge Sutherland, the attorney investigator, the Deputy Disciplinary Administrator, and Ms. Friedlieim.
“111. In the pleadings and die written correspondence in the underlying litigation, die Respondent was repeatedly abusive to Mr. Rank. The Respondent attacked Judge Sutiierland for ruling against him and asserted that Judge Sutii-erland’s ruling was biased. The Respondent attacked Ms. Pearman’s statements in her investigative report, alleging that KRPC 3.3 required die deletion of certain statements. The Respondent attacked the Deputy Disciplinary Administrator in his response to the Deputy Disciplinary Administrator’s motion regarding Ms. Pearman’s deposition and requested tiiat she be reminded diat the Kansas Rules of Professional Conduct apply to her and to her attorney witnesses. Additionally, die Respondent attacked the Deputy Disciplinaiy Administrator in his response to die Deputy Disciplinary Administrator’s closing argument. Finally, die Respondent’s cross examination of Ms. Friedlieim was abusive. Accordingly, die Hearing Panel concludes that the Respondent engaged in a pattern of misconduct.
“112. Bad Faith Obst-mction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rides or Orders of the Disciplinary Process. The Respondent intentionally failed to comply widi die directives of die Hearing Panel. The Hearing Panel directed the parties to file simultaneous written closing arguments, succincdy stating their position regarding the alleged rule violations and recommendation of discipline, by November 22, 2011, by 5:00 p.m. The Hearing Panel limited tlie parties written closing arguments to 10 pages. The Respondent requested permission to file a response to the Deputy Disciplinary Administrator’s written closing argument. The Hearing Panel granted the Respondent’s request and allowed both parties to file a five page response to the opposing written closing argument by November 29, 2011, at 5:00 p.m.
“113. On November 22, 2011, the Respondent filed his written closing argument late. On November 29, 2011, at 9:59 p.m., the Respondent filed a 22 page response to the Deputy Disciplinary Administrator’s written closing argument. The Respondent’s 22 page response was rambling, disorganized, repetitive, and grammatically deficient. The Respondent’s 22 page response to the Deputy Disciplinary Administrator’s written closing argument evidences the Respondent’s failure or inability to comply with the Hearing Panel’s order.
“114. Submission of False Evidence, False Statements, or Other Deceptive Practices During the Disciplinary Process. During the disciplinary proceedings, the Respondent provided a number of exhibits. Some of the exhibits the Respondent provided were not true and accurate copies of original exhibits. Rather, the Respondent had altered the exhibits by highlighting phrases and sentences using the bold font feature. Further, the Respondent did not disclose that the documents had been altered until the exhibits were challenged by the Deputy Disciplinary Administrator.
‘MS. KNOLL: This exhibit has been admitted. He’s asked this—questions about this exhibit before. The problem I have that I wrote is it appears that this exhibit has been altered. There has been bold type added to emphasize certain phrases that is different than what was originally produced. And at this point I’m objecting on—
‘MR. SMALL: What’s the other exhibit number, please?
‘CHAIRMAN SHARP: Can we get a response to that? Has 101 been enhanced for bolding.
‘MR. SMALL: There may have been bold put on it, but that’s it. That’s so it would be faster to deal with the exhibits since there’s so many to draw the attention to the relevant language in the document. Words have not been changed. It’s highlighted is what it is.
‘CHAIRMAN SHARP: And is that true throughout a lot of the exhibits?
‘MR. SMALL: I’d have to look at them. I don’t think very often. But there were a couple of them that were very significant that these apparently were bolded on to bring out the contrasts. And there are printouts of the originals here and you can compare them and see.’
Accordingly, the Hearing Panel concludes that the Respondent submitted false evidence or engaged in other deceptive practices during the disciplinary proceeding-
“115. The Respondent also engaged in deceptive conduct in making certain statements in his 22 page response to the Deputy Disciplinary Administrator’s closing argument. Specifically, the Respondent stated:
‘The Disciplinary Administrator [sic] failed to mention that she demanded that Respondent confess numerous violations including interference with the administration of justice, lying about a judge in work product drafts unfiled and unpublished anywhere, failing to report a judge, that lien letters are violations of Rule 1.6, that the Letter to Bell-Lloyd was not required under Nelson v. Miller. She demanded that without confession to these unsustainable allegations she would not make a recommendation. She announced on October 4, 2008, she was not claiming to seek suspension and found Respondent fixated in that regard, yet her argument is for suspension, exactly what she said she was not after. The Hobson’s choice was to confess to violations that were unsustainable and could merit harsh punishment or to defend. There was no choice but to defend, and a lawyer should not be subject to enhanced punishment or punishment for defending. The demanded confessions were based upon ill founded and defective probable cause based upon a faulty investigation and a complaint based upon die fraudulent assertion die work was paid for with a lamp. Despite requests that die prosecutor and investigator acknowledge the probable cause was faulty and that Respondent be permitted to discuss the Investigator’s [sic] concerns leading to the probable cause on charges since abandoned the requests were denied, and prosecution perpetuated.
‘The Disciplinary Administrator [sic] has repeatedly advanced misplaced beliefs. Her beliefs are not evidence of violations nor justifications to impose unwarranted, excessive or draconian discipline under inapplicable standards. Some beliefs appeal in the Formal Complaint, such as the abandoned belief Mrs. Friedheim procured dismissal of the fee suit and the argument tire claim was abandoned when in fact the record showed it was dismissed without prejudice and the claim preserved, the misplaced belief that counsel was paid with a lamp, and otherwise. Exhibits were grouped together which were not unitary documents. Continual threats of amendments were made resulting in the loss of counsel’s representation in this matter. Additionally, the matter of an unpublished work product draft mandamus action and affidavit being a false statement (abandoned) a need to file a complaint about the fitness of a judge (abandoned) misleading argument concerning an e-mail to the effect the judge was accused of assisting a theft, that statutory lien letters violate confidentiality (abandoned and contrary to the lien statutes and Rule 1.6), that a demand letter is improper (contrary to Nelson v. Miller) that one should apparently write die client to create potential misunderstandings Rule 4.2 is designed to prevent, and that counsel should confess to alleged violations the Disciplinary Administrator abandoned as contrary to fact and law. On at least 2 occasions during die hearing she corrected Mrs. Friedheim [sic] with respect to not owing payment of money and a trade of a lamp. . . .’
“116. First, procedurally, die Deputy Disciplinary Administrator informed the Respondent that he was eligible to enter die attorney diversion program—an alternative to the traditional disciplinary hearing process. In order to enter the attorney diversion program, however, a Respondent is required to stipulate to the factual allegations and rule violations. Kan. Sup. Ct. R. 203(d)(2). Thus, the Respondent’s statements and arguments that the Deputy Disciplinary Administrator ‘demanded that Respondent confess numerous violations’ is not persuasive, but rather misleading.
“117. Next, on October 4,2011, the Deputy Disciplinary Administrator did not announce that ‘she was not claiming to seek suspension and found Respondent fixated in that regard.’ On October 4, 2011, the Hearing Panel convened and took up the Respondent’s motion to continue the hearing. During the proceedings that day, the following exchange between the Deputy Disciplinary Administrator and the Respondent occurred:
‘Q. [By the Deputy Disciplinar)' Administrator] And the bottom line, at least tire way I’m reading this, is you needed to indicate what you wanted, that you had been offered non-disciplinary—non-traditional disciplinary action under tire diversion program and I just needed to know if you wanted to go to a hearing or if you wanted to pursue something else?
‘A. [By the Respondent] My understanding was what I was offered was to give you a complete release of my medical history, to have a lawyer come in and operate my office, to undergo psychiatric evaluation, drug testing. I mean, I didn’t understand where any of this was coming from. When you understand more about my client, you may understand she’s—
‘Q. Sir, I’m going to ask you not to attack the complainant.
‘A. I’m not attacking anyone here. I’m simply saying I was—I was told there was an investigative report months after it had been filed. I never had a chance to follow up widr any questions tire investigator may have had. Then apparently there was a probable cause determination based upon this report and then I heard from you saying that the investigator recommended I be suspended from the practice of law, but that you were recommending that I have—your office was recommending that I have diversion. And I think it’s—I looked at some of the correspondence last night. I thought you said an informal admonition, but tiren you wanted me to do a diversion program and I just I needed to understand the complaint and the law and the factual basis for it before I could make a decision.’
The exchange above is the only reference made during tire October 4, 2011, proceeding, to the suspension of tire Respondent’s license to practice law. At no time during tire October 4, 2011, hearing, did the Deputy Disciplinary Administrator make the statement which the Respondent has attributed to her. Again, the Hearing Panel concludes that the Respondent made false statements and engaged in deceptive practices.
“118. In his response to the Deputy Disciplinary Administrator’s closing argument, the Respondent also argued that he should not be subject to enhanced discipline for defending the disciplinary case. Participation in the attorney diversion program is voluntary, as foe Respondent knows. The Respondent chose to decline foe Deputy Disciplinary Administrator’s terms and conditions for participation in foe diversion program. Accordingly, die Kansas Supreme Court Rules require that traditional disciplinary proceedings resume. Once traditional disciplinary proceedings resumed and foe matter proceeds to hearing, die Respondent is no longer eligible to participate in foe attorney diversion program. Further, the Deputy Disciplinary Administrator is free to malee a recommendation for discipline based upon all known information, including information that develops during the formal hearing. Finally, neither foe Hearing Panel nor foe Court is bound by any recommendations of die party. Thus, foe Respondent’s argument diat he should not be subject to ‘enhanced discipline lacks merit.
“119. Further, foe Respondent argued diat die Disciplinary Administrator has repeatedly advanced misplaced beliefs. The Deputy Disciplinary Administrator filed the formal complaint based upon information and belief. The Respondent filed his answer based upon information and belief. The proper time to determine which facts to accept and which facts to reject came at foe time of the formal hearing. Just because a fact is rejected by die Hearing Panel does not necessarily mean that the party asserting foe fact made a false statement or allegation. Often parties have differing views of foe same set of circumstances or events. The reason we have contested hearings and trials is to make those factual determinations. The Respondent’s inference that foe Deputy Disciplinary Administrator engaged in wrongdoing by including certain facts in her formal complaint is sopliomoric and lacks merit.
“120. Finally, tire Respondent argued that foe Deputy Disciplinary Administrator made continual threats of amendments which resulted in ‘foe loss of [the Respondent's representation in this matter.’ Only one attorney entered his appearance in behalf of the Respondent in tire disciplinary case, Sheldon Bernstein. Additionally, tire Deputy Disciplinary Administrator made only one attempt to amend her formal complaint. She attempted to add an allegation that tire Respondent violated KRPC 1.1.
“121. From the statement in his response to tire Deputy Disciplinary Administrator’s closing argument, foe Hearing Panel concludes that foe Respondent is arguing that because the Deputy Disciplinary Administrator informed Mr. Bernstein that she planned to amend foe formal complaint to include a violation of KRPC 1.1, that Mr. Bernstein withdrew from tire representation of the Respondent. The Respondent’s argument lacks merit and is false.
“122. During the October 4, 2011, hearing, Mr. Bernstein stated, ‘[a]s I can point out, my client and I may have some philosophical differences so obviously we’re not as well prepared as we’d like to be and be on the same page.’ Further, on October 27, 2011, Mr. Bernstein filed a motion for leave to withdraw. In support of his motion, Mr. Bernstein stated ‘[pjursuant to Rule KRPC 1.16(b)(5), the parties have philosophical and legal differences of opinion.’ It is clear that Mr. Bernstein withdrew from his representation of the Respondent because of philosophical and legal differences of opinion. Thus, the Respondent’s attribution of fault to the Deputy Disciplinary Administrator’s ‘continual threats of amendments’ is false and deceptive.
“123. The Hearing Panel concludes that the Respondent repeatedly made false statements and engaged in deceptive practices during tire disciplinary proceeding which aggravates the misconduct in this case.
“124. Refusal to Acknowledge Wrongful Nature of Conduct. The Respondent has refused to acknowledge the wrongful nature of his conduct. In the final pleading filed by the Respondent, the 22 page response to the Deputy Disciplinary Administrator’s written closing argument, the Respondent blamed his troubles on the Deputy Disciplinary Administrator and the attorney investigator. While tire Respondent has repeatedly complained that his client, the Bluhms, Mr. Rank, the Deputy Disciplinary Administrator, the attorney investigator, and Judge Sutherland were at fault, he has not once suggested that at any time he did anything improper. The Respondent’s refusal to acknowledge his misconduct is an aggravating factor worthy of consideration.
“125. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law in 1986. As such, the Respondent has 25 years of experience practicing law. The Respondent’s emotional response to adversity is what one might see with a lawyer fresh out of law school— not after 25 years of practice. Certainly, the Respondent’s experience should have provided him with tire tools necessary to avoid this type of misconduct.
“126. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstance present:
“127. Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined. The Respondent’s lack of a prior disciplinary record is a mitigating circumstance in this case.
“128. In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, tire public, or the legal system.’
“Recommendation
“129. The Disciplinary Administrator recommended that the Respondent be suspended from tire practice of law. The Respondent argued that tire Disciplinary Administrator failed to establish a violation of tire Kansas Rules of Professional Conduct and that the case should be dismissed.
“130. The Hearing Panel is troubled by the Respondent’s modus operandi. The Respondent makes threats as a matter of standard practice. When the Respondent was met with disagreement, the Respondent responded by making threats and using intimidation tactics. He threatened and attempted to intimidate Mr. Rank, Judge Sutherland, the attorney investigator, and the Deputy Disciplinary Administrator.
“131. The Respondent went from collecting a fee to a personal vendetta. When the Respondent personalized the litigation, the Respondent showed a serious lack of professionalism. The Respondent’s] lack of professionalism is part and parcel of die violation in diis case.
“132. The Respondent thought that he had a client with significant financial resources, but he did not. And, when he was burned by his client who entered into an absurd rental agreement, he should have withdrawn and walked away from the bad deal. Instead, he became vindictive and wanted to punish everyone involved. The Respondent must come to realize tiiat if he continues to practice law, he will be repeatedly disappointed in the results of his cases as are all lawyers and he has to learn to live with tíiat instead of setting out to punish all who disagree with him.
“133. Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law for a period of 90 days.
“134. Costs are assessed against the Respondent in an amount to be certified by the Office of die Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, the discipline to be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2012 Kan. Ct. R. Annot. 350). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
The respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of both the hearing before the panel and the hearing before this court. The respondent filed a pleading indicating an intention to file exceptions to the hearing panel’s final hearing report. However, after multiple extensions of time, he failed to brief any exceptions. This matter was therefore deemed uncontested by order of this court on October 22, 2012.
With no exceptions before us, the panel’s findings of fact are deemed admitted. See Supreme Court Rule 212(c), (d) (2012 Kan. Ct. R. Annot. 368). Furthermore, the evidence before the hearing panel establishes the respondent’s misconduct in violation of KRPC 8.4 (d) and (g) (2012 Kan. Ct. R. Annot. 643) by clear and convincing evidence and supports die panel’s conclusions of law. We therefore adopt the panel’s conclusions.
The only remaining issue before us is the appropriate discipline for respondent’s violations. At the hearing before this court, the office of the Disciplinary Administrator recommended that the respondent be suspended from the practice of law for 1 year. The respondent argued that the case should be dismissed and no discipline imposed. We hold that the violations proved and respondent’s apparent inability to acknowledge any wrongdoing or address the relevant issues at oral argument before this court demonstrate the need for a period of suspension.
Conclusion and Discipline
It Is Therefore Ordered that Stephen B. Small be suspended from the practice of law in the state of Kansas for 6 months, effective on the filing of this opinion. It is hoped that this period of suspension, sooner rather than later, will impress upon respondent the seriousness of his situation and the necessity that he seek professional counsel and assistance in order to regain his ability to practice law.
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2012 Kan. Ct. R. Annot. 397), as amended December 1, 2012.
It Is Further Ordered that the respondent shall be subject to a Rule 219 reinstatement hearing before his suspension may be lifted. (2012 Kan. Ct. R. Annot. 398), as amended December 1, 2012. The required petition for reinstatement must be accompanied by a written report from a licensed psychiatric, psychological, or social work professional approved by the Kansas Lawyers Assistance Program. The report must include an opinion that there are no current impediments to respondent’s ability to practice law, and the reinstatement panel must satisfy itself from the information in that report and any other evidence submitted to it that respondent has addressed the problems that led to his misconduct and suspension, before this Court will consider lifting the suspension.
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas reports. | [
-112,
-24,
-7,
-51,
10,
97,
58,
44,
107,
-37,
103,
114,
-21,
-6,
-127,
105,
-13,
41,
64,
107,
-45,
-74,
87,
64,
102,
-13,
-80,
65,
-69,
79,
-3,
-99,
73,
49,
-126,
87,
6,
-54,
-43,
-112,
-126,
1,
9,
-16,
-45,
-64,
-80,
57,
2,
15,
53,
-2,
-77,
44,
53,
-58,
40,
104,
-1,
37,
-45,
-111,
-33,
23,
127,
22,
-94,
20,
28,
7,
-40,
123,
-120,
57,
34,
-23,
51,
50,
-126,
116,
79,
-119,
44,
38,
98,
35,
-119,
-91,
-28,
-100,
15,
24,
-100,
39,
-111,
89,
3,
13,
-74,
-103,
117,
22,
35,
124,
-30,
5,
25,
104,
14,
-53,
-44,
-79,
31,
114,
-100,
10,
-17,
-123,
0,
81,
-63,
-90,
94,
-42,
114,
-101,
-114,
-91
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied
Unpublished | [
-99,
105,
-55,
63,
-88,
-95,
58,
30,
-62,
-113,
103,
119,
-49,
-30,
-116,
89,
-83,
103,
-91,
91,
93,
23,
127,
-27,
98,
91,
-94,
-11,
-15,
111,
-2,
-112,
76,
24,
-37,
93,
-58,
-120,
-115,
88,
-122,
7,
-104,
-116,
-111,
65,
36,
35,
104,
15,
89,
-44,
-15,
46,
-98,
67,
-56,
102,
-57,
-83,
-63,
-35,
-111,
31,
-65,
20,
-62,
85,
-100,
11,
-62,
102,
16,
48,
53,
-20,
114,
-90,
-41,
85,
7,
-7,
-80,
33,
10,
32,
-68,
-91,
32,
44,
15,
94,
13,
-92,
-5,
9,
75,
57,
-46,
-35,
16,
-108,
39,
62,
98,
-60,
15,
-88,
46,
-1,
-26,
-93,
31,
40,
12,
9,
-5,
-42,
16,
49,
-49,
53,
-40,
-78,
53,
-118,
-42,
53
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied
51 Kan. App. 2d 451 | [
-107,
107,
-19,
60,
-116,
-64,
3,
30,
9,
-75,
117,
83,
-17,
-46,
4,
121,
-18,
111,
49,
120,
-55,
-74,
95,
72,
114,
91,
-37,
-43,
-8,
107,
-16,
-80,
76,
-16,
-54,
-43,
70,
-54,
-83,
88,
-116,
4,
-103,
77,
-111,
-125,
60,
-25,
122,
7,
49,
-116,
-13,
40,
26,
-63,
-127,
108,
-37,
-67,
-55,
-15,
-71,
-107,
124,
84,
-32,
20,
-112,
65,
64,
126,
-112,
16,
33,
-24,
115,
38,
-122,
116,
99,
-101,
-95,
-27,
66,
35,
40,
-19,
-4,
-82,
30,
30,
13,
-90,
-109,
9,
107,
25,
-42,
-67,
121,
-106,
15,
-6,
107,
-124,
79,
124,
-118,
-18,
-8,
-77,
-53,
121,
-116,
-127,
-17,
-108,
-112,
49,
-33,
-15,
74,
-41,
-79,
90,
70,
-76
] |
The opinion of the court was delivered by
ROSEN, J.:
Evelyn L. Wells and Reginald Stafford were separately charged and jointly tried and convicted of various person and off-grid felony offenses involving Wells’ minor child, S.W. As a result, the facts and several issues stemming from this appeal are identical to those appearing in State v. Stafford, No. 103,521, this day decided.
A juiy found Wells guilty of two counts of rape in violation of K.S.A. 21-3502(a)(2), an off-grid crime, one count of aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(l), an off-grid crime, and one count of aggravated endangering a child in violation of K.S.A. 21-3608a(a)(l), a severity level 9 person felony. On appeal, Wells argues: (1) The prosecutor committed misconduct during his closing argument by misstating the legal meaning of the unanimity instruction given to the jury; (2) the juiy was presented with alternative means of finding Wells guilty of aggravated criminal sodomy (oral), one of which was not supported by sufficient evidence; (3) the district court improperly limited cross-examination of the victim, S.W.; (4) tire district court, by answering a jury question with a written note, violated Wells’ constitutional right to be present at all critical stages of her trial; (5) cumulative error deprived Wells of a fair trial; (6) the district court abused its discretion in denying Wells’ motion requesting a departure sentence; and (7) the district erred by setting 25 years’ imprisonment as the minimum prison term Wells must serve before becoming parole eligible. Based on the analysis below, we find no merit to any of Wells’ arguments. Accordingly, we affirm her convictions and sentences.
Facts
Between August 2006 and July 2007, S.W., born April 19, 2001, lived with her mother, Wells; her stepfather, Rex; and her 12-year-old half-brother, Rocky, in a two-bedroom apartment in Wichita. During this same time period, S.W.’s older half-brother, Robert (who graduated from high school during this time) stayed at the apartment periodically, and S.W.’s older half-sister, Jessica, along with her husband, Ruben Diaz, moved into the apartment. Jessica and Diaz would eventually separate, but Diaz continued living at the apartment after the couple’s separation.
Sometime around December 2006, S.W. told Robert—then, with Robert’s urging, told Rocky—that a person named “Reggie” had touched her vagina with his finger. Though Robert claimed that at the time he did not know a person named Reggie (a claim unsupported by Rocky’s testimony), Rocky recognized the name as referring to Stafford, a person Rocky had known since he was 4 years old. Stafford, who lived nearby, would occasionally visit the apartment, and Wells would also visit Stafford at his home. Rocky said that Wells would sometimes take S.W. with her when she visited Stafford. Rocky estimated that this took place once every 2 to 3 months. Notably, Rocky said that on the day S.W. told him and Robert that Stafford had touched her, Wells had taken S.W. to Stafford’s house. Wells had brought S.W. back to the apartment before going out again that evening with Stafford.
Robert and Rocky failed to tell anyone about S.W.’s statement. Regardless, sometime between December 2006 and March 2007, Diaz overheard Robert tell Rocky that he thought Wells had “sold [S.W.] for money,” which Diaz interpreted as meaning Wells had prostituted S.W. to someone. Because he did not know whether Robert’s statement was true, Diaz tried to observe something that would corroborate what he had heard before telling someone about Robert’s statement. But after failing to notice anything to corroborate the statement, Diaz eventually told his boss, Robert Barnes, on Sunday, July 8, 2007, about overhearing the statement.
The next day, July 9, Barnes contacted authorities, resulting in Melissa Gardner, a social worker with the Kansas Department of Social and Rehabilitation (SRS), and William Riddle, a detective with the Wichita Police Department, going to the apartment that day to investigate the allegation. But neither Wells nor S.W. were at home that day. The next day, July 10, patrol officers went to the apartment and made contact with S.W. The officers placed S.W. in protective custody and transported her to the Wichita Children’s Home where she was interviewed by Gardner and Riddle. Rocky was also removed from the apartment that same day.
During her interview with Gardner and Riddle, S.W., who appeared to be happy and comfortable with being interviewed, did not disclose to them that she was being sexually abused. Gardner also spoke to Rocky and Robert on July 10. Rocky denied that S.W. had ever been inappropriately touched, and Robert told Gardner that he did not have any concerns about something bad happening to S.W. Robert failed to mention S.W.’s statement about a person named Reggie touching her vagina.
After S.W.’s interview was completed on July 10, she was placed in foster care with Joyce White-Dechant. Kerri Myers, an employee of Youthville, became S.W.’s case manager. According to White-Dechant, she was not aware of S.W.’s background or the allegation that she had been sexually abused when S.W. came to live with her. White-Dechant said that when S.W. first came to stay with her, S.W. was “veiy quiet, veiy distraught, angry, sleepless, wet the bed, didn’t eat well, [and] had a stomach ache all the time.” White-Dechant also said that S.W. had told her that she did not want to go home and was scared to do so. During the time S.W. lived with White-Dechant, S.W. attended counseling about twice a week.
In October 2007, White-Dechant came into the bathroom while S.W. was taking a bath and noticed S.W. fondling herself. White-Dechant asked S.W. if anybody had ever “bothered her.” In response, S.W. ducked her head and did not answer. White-Dechant told S.W. that it was okay and that if she ever had anything she wanted to tell, White-Dechant would listen to her. White-Dechant then left S.W. in the bathroom and went to her own bedroom. A short time later, S.W. came into White-Dechant’s bedroom and told her that there was something she needed to tell her. According to White-Dechant, S.W. said that she had been touched before. White-Dechant then asked S.W. if she had been touched more than once. S.W. said yes and stated that she had been touched on her “potty.” White-Dechant asked if potty meant her private part, and S.W. said yes.
Initially, S.W. would not tell White-Dechant who had touched her, but she eventually identified the person as Wells’ boyfriend, Reggie. According to White-Dechant, S.W. told her that Wells was trying to get money from Reggie in exchange for having sex with S.W. S.W. also told White-Dechant drat Reggie lived “down and around the corner” from her apartment.
After S.W. made her disclosure, White-Dechant immediately contacted Myers, and Myers came to White-Dechant’s home the next day to speak with S.W. On that day, Myers said that S.W. acted more anxious than usual and seemed distracted. After Myers had been there for a while, she asked S.W. if she had something that she wanted to talk about, and S.W. said that she did. At that point, White-Dechant left the room, leaving Myers and S.W. together by themselves. S.W. then told Myers that a man named Reggie had touched her. Using a female doll that White-Dechant had inside her house, Myers had S.W. show her on the doll where she had been touched. S.W. took the doll, laid it down on her lap with its legs facing her, lifted up the doll’s skirt, and repeatedly poked the doll between its legs. Myers described the poking as “forceful and violent.”
S.W. told Myers that Reggie lived down the street and that after he would touch her, Wells would take money from him. S.W. also said that Reggie and Wells would go into another room and that when they came out, Reggie would give Wells money. Myers asked S.W. what Reggie and Wells were doing in the other room, and S.W. spelled “s-e-x.” Myers asked S.W. if anyone else had touched her, and S.W. said no, that Reggie was the only one.
On October 25, 2007, Myers reported S.W.’s disclosure to SRS. Gardner and Riddle tried to interview S.W. on November 8, 2007, but S.W. had the flu at that time. Accordingly, Gardner rescheduled the interview for November 20. Prior to that time, however, S.W. underwent a sexual assault examination on November 9, which did not reveal any physical injuries or show that S.W. had been infected with any sexually transmitted diseases. Kathy Gill-Hopple, the nurse who conducted the exam, asked S.W. if anyone had ever touched her in a way that made her feel mad or sad, and S.W. responded by saying Reggie touched her. S.W. pointed to her vaginal area and said that Reggie had touched her down there underneath her clothes-When Gill-Hopple asked S.W. what part of Reggie’s body touched her, S.W. pointed to her vaginal area and said that Reggie touched her with his “same spot.” .Gill-Hopple asked S.W. if Reggie had ever made her touch him, and she said no. But shortly thereafter, S.W. said that Wells had made her touch Reggie. When asked to explain more, S.W. said that Wells made her touch Reggie under his clothes and pointed to her vaginal area again to indicate the area of Reggie's body she was forced to touch. Gill-Hopple also asked S.W. if there were any other parts of her body that Reggie had touched. S.W. answered by pointing behind to her anal area and saying that Reggie had touched her butt with his “same spot” under her clothes.
On November 20, 2007, Gardner and Riddle interviewed S.W. Gardner summarized the interview as follows:
“She reported that her mother took her to a man named Reggie’s house. That they had walked there. That it was nearby her house. That her mother and Reggie had touched her on her—what she called potty, which she indicated on the drawing that was her vaginal area. She said that they touched her potty with their hands on the inside. She said they touched her bottom on Ae inside as well with their hands. And she said Reggie touched her potty with his lower part, which she indicated was his penis.
“And she also reported Aat—I asked her if he asked—if Reggie asked her to touch him? She said Aat he asked her to put her mouA on his lower part. And she said she was scared, but her mom told her to do it and pulled her over to him. She said it was just like an ice cream cone and Aat white stuff came out. And Aat she was scared and ciying and was screaming. And she said this happened multiple times. She gave a number of five times when we initially asked.
“She also reported it happened on—that her potty—diat her mom touched her potty seven times.”
Riddle said that during this interview, S.W. stated that these acts occurred when she was in kindergarten during the 2006-2007 school year. According to Riddle, S.W. said tire touching occurred after the school year had started but before Halloween.
After interviewing S.W. on November 20, Riddle asked Rocky if he knew a person named Reggie. Rocky said yes and gave Riddle descriptions of Reggie’s house and vehicle. Based on Rocky’s descriptions, Riddle determined that the name Reggie likely referred to Stafford, who lived only a few blocks away—within walking distance^—from the Wells’ residence. After obtaining Stafford’s driver’s license photo, Riddle placed the picture in a photo lineup with five other photos and showed the lineup to Roclcy. Rocky identified Stafford’s photo as depicting Reggie.
On November 27, Gardner and Riddle conducted another interview of S.W. During the interview, Riddle showed S.W. the photo lineup and asked her if Reggie’s picture was in the lineup. S.W. identified Stafford’s photo as depicting Reggie. S.W. told Gardner and Riddle that Stafford had given Wells a “nasty movie” involving animals and people. S.W. said the people did “nasty things” to each other in the movie. S.W. told them she watched tire movie at her house and at Stafford’s house. Riddle also spoke with Rocky on November 27 and asked him if he was aware of anything that would be bothering S.W. Rocky said he was not aware of anything. But in January 2008, after the State filed charges against Stafford and Wells, Rocky disclosed to law enforcement what Robert had told him about S.W.’s statement.
The State ultimately charged Wells and Stafford with two counts of rape in violation as K.S.A. 2006 Supp. 21-3502(a)(2) and two counts of aggravated criminal sodomy in violation of K.S.A. 2006 Supp. 21-3506(a)(l) (one charge alleging anal sodomy, the other alleging oral sodomy). The State also charged Wells with aggravated endangering a child in violation of K.S.A. 21-3608a(a)(l). The State alleged that all of these crimes occurred sometime between August 15, 2006, and July 10, 2007. Wells and Stafford, despite making requests to have separate trials, were represented by different attorneys at a joint jury trial.
At the trial, Rocky testified that he failed to disclose what S.W. had told him and Robert (that Stafford had touched her vagina) because he was afraid S.W. and he would be taken away from Wells. Robert testified that he did not contact the police or SRS because he was shocked by S.W.’s statement, causing him not to know what to do or how to react. Though Robert did not report S.W.’s statement to the authorities, he did claim that he went over to the apartment more often to keep an eye on S.W. and see if he could notice anything to corroborate S.W.’s story, which, according to Robert, he never did. Robert also said that S.W. never told him that Wells was making her touch or submit to touching by Stafford.
S.W., who was 7 years old at the time of trial, testified that during the time she was in kindergarten, Wells took her to Stafford’s home on multiple occasions. S.W. said that Stafford would touch her private every time that she was at his house, which she said occurred eight times. S.W. said Stafford would touch her while they were both naked in his bedroom and lying on a bed. According to S.W., while Stafford was touching her, Wells would be sitting naked on the same bed. S.W. said that Stafford’s private touched the inside of her private and that Stafford also put his private inside her mouth. Notably, when S.W. was asked whether anyone had ever touched her “bottom” in a way that she did not like, S.W. said no.
S.W. said that after Stafford was finished touching her, he would give Wells money. S.W. admitted that though she did not actually see Stafford give Wells money, Wells told her about receiving money from Stafford. S.W. said that Wells would spend this money on “whiskey and cigarettes.”
S.W. said that on die day she told Rocky and Robert about Stafford touching her, Wells had taken her to Stafford’s home earlier that day. S.W. also said that she told White-Dechant about being touched by Stafford.
Wells and Stafford did not testify at trial, nor did they present any evidence. The district court instructed the jury that it could find Wells guilty of die crimes charged against her based on her being a direct participant in the crimes or as an aider and abettor of the crimes. The jury acquitted Wells and Stafford of the aggravated criminal sodomy count alleging anal sodomy. But the jury found Wells and Stafford guilty of both rape counts and guilty of the aggravated criminal sodomy count alleging oral sodomy. The jury also found Wells guilty of aggravated endangering a child.
After denying Wells’ motion for a departure sentence, the district court ordered Wells to serve a hard 25 life sentence for each of her two rape convictions and her one conviction for aggravated criminal sodomy. The court ordered die life sentences to run concurrent with one anodier. The court also imposed a concurrent 7-month prison sentence for Wells’ aggravated endangering a child conviction. Wells filed a timely appeal.
More facts will be stated as they become pertinent to the issues discussed below.
Prosecutorial Misconduct
Wells first contends that the prosecutor committed misconduct during his closing argument when discussing how the jury’s unanimity instruction applied to the two rape counts. Wells alleges that these comments were erroneous statements of law that prejudiced her. Accordingly, she asks that we reverse her rape convictions and remand for a new trial.
We apply the following standard to review allegations of prose-cutorial misconduct:
“Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, an appellate court decides whether the comments were outside the wide latitude that a prosecutor is allowed in discussing the evidence. Second, if misconduct is found, an appellate court must determine whether the improper comments prejudiced the jury against tire defendant and denied the defendant a fair trial. [Citations omitted.]” State v. Marshall, 294 Kan. 850, 856, 281 P.3d 1112 (2012).
Applicable Facts
The State charged Wells with two counts of rape, two counts of aggravated sodomy, and one count of aggravated endangering a child, all of which the State alleged occurred sometime between August 15, 2006, and July 10, 2007. S.W.’s prior statements to investigators and her trial testimony established that Wells had deliberately taken S.W. to Stafford’s house on multiple occasions (more than two times) during the 2006-2007 school year so Stafford could rape and sodomize S.W. in exchange for money. Though S.W. could not give dates at trial as to when these events occurred, Riddle stated that S.W. indicated at a November 20 interview that Stafford had touched her after she had started kindergarten but before Halloween. Furthermore, S.W. testified that on the same day she made her disclosure to Robert and Rocky that Stafford was touching her, Wells had taken her to Stafford’s home earlier that day, where he had again molested her. Consistent with this testimony, Rocky stated that Wells had taken S.W. to Stafford’s home on the same day that S.W. made her disclosure to them, which Rocky believed occurred sometime around December 2006.
Because the evidence presented at trial showed that Wells may have performed multiple, criminal acts, any of which could constitute the charged crimes, the district court gave a unanimity instruction to the jury in order to alleviate the possibility that the jury would convict Wells of the charged crimes without unanimously agreeing on the particular acts that constituted each crime. See State v. Voyles, 284 Kan. 239, 244-45, 248-49, 160 P.3d 794 (2007). The instruction stated:
“The State claims distinct multiple acts which each could separately constitute the crime of rape, aggravated criminal sodomy and aggravated endangering a child. In order for the defendant to be found guilty of rape and aggravated criminal sodomy and aggravated endangering a child, you must unanimously agree upon the same underlying act.”
During closing arguments, the prosecutor made the following comment regarding the unanimity instruction’s application to the rape counts:
“Instruction number 17, it’s land of referred to as the multiple acts instruction. What it says is, in essence, and you read it if I’m misquoting here, but it says, in essence, you all have to agree that these things are unanimous that these things occurred on specific times. I don’t have a date to give you. [S.W.] doesn’t have a date to give you. But you must unanimously agree that it happened at least once as to this count. And then later on there’s a separate rape count. You have to agree that it happened at least a second time.” (Emphasis added.)
The prosecutor used similar language when discussing the second count of rape, saying:
“Instruction number eight has to do with, again, rape. I’m not going to repeat this. You simply have to find unanimously that it happened at least a second time. She’s very clear it happened many times. Was it truly eight? Was it five or six? She’s not sure. But she knows it happened a lot, I think were the words she used, a lot or a bunch. Again, child’s words. But you have to unanimously agree that it happened at least that second time.” (Emphasis added.)
Later during his closing argument, the prosecutor stated, “If I’ve said anything, as I’m explaining this to you, that you don’t think is supported by the instructions, clearly look at the instructions.”
In response to the prosecutor’s comments about the unanimity instruction, Wells’ defense counsel made the following statement during his closing argument:
“And I think it’s instruction 17 that [the prosecutor] talked to you about, you’ve got to agree that it occurred and it’s the same incident. Not that she was raped twice during that time period. When. Where. How.”
Analysis
The purpose of a unanimity instruction is to alleviate the possibility that a defendant will be convicted of a crime without the jury unanimously agreeing on the particular act that constituted the crime. This possibility arises when, as here, a defendant is charged with a crime but the evidence presented at trial shows that the defendant committed multiple criminal acts, any of which could constitute the charged crime. In such a situation, a district court, as was done here, should instruct the jury that it has to unanimously agree upon the particular act constituting the crime. See Voyles, 284 Kan. at 244-45, 248-49.
Though the prosecutor, consistent with Voyles, told the jury that the unanimity instruction meant that it had to agree the alleged acts “occurred on specific times,” he went on to tell the jury drat it could find Wells guilty of the first rape count if it unanimously found that S.W. was raped “at least once” and could find Wells guilty of the second rape count if it found that S.W. was raped “at least a second time.” The prosecutor’s statements misconstrued the meaning of the unanimity instruction because the statements conveyed to the jury diat it could find Wells guilty of both rape counts without unanimously agreeing on the underlying act constituting each rape count. Accordingly, we find that the prosecutor’s statements misstated the law and, thus, fell outside the wide latitude that a prosecutor is allowed during closing argument. See State v. Bunyard, 281 Kan. 392, 406, 133 P.3d 14 (2006) (“Misstating the law is not within the wide latitude given to prosecutors in closing arguments.”).
Because we have found that the prosecutor committed misconduct during his closing argument, we move on to the second prong of the prosecutorial misconduct analysis:
‘When a prosecutor makes an improper comment during closing argument, an appellate court conducts a harmlessness inquiry, determining whether the misconduct was so prejudicial that it denied the defendant a fair trial. Three factors are considered. First, was the misconduct gross and flagrant? Second, was the misconduct motivated by ill will? Third, was the evidence of such a direct and overwhelming nature that the misconduct would likely have had little weight in a juror’s mind? None of these three factors is individually controlling.” Marshall, 294 Kan. 850, Syl. ¶ 3.
With regard to the first factor—whether the misconduct was gross and flagrant—we consider whether the misconduct was repeated, was emphasized, violated a long-standing rule, violated a clear and unequivocal rule, or violated a rule designed to protect a constitutional right. Marshall, 294 Kan. 850, Syl. ¶ 6. Here, the prosecutor repeated his erroneous statements twice to the jury concerning the unanimity instruction’s application to the rape counts. Second, to ensure jury unanimity in multiple acts cases, we have clearly and unequivocally required since at least 2001 that the State inform the jury of which acts to rely on in its deliberations or the court must instruct the jury to agree on the specific criminal acts. See Voyles, 284 Kan. at 255. This requirement, however, is not based on a constitutional right but on K.S.A. 22-3421’s requirement that a jury’s verdict in a criminal case be unanimous. See Voyles, 284 Kan. at 250 (“[T]he right to a unanimous jury verdict in a Kansas court is not a federal constitutional right or a state constitutional right, but rather a statutory one.”). Even if the prosecutor’s misstatements were merely inarticulate and not intentional, a prosecutor should be sensitive to our repeated statements regarding the purpose of a unanimity instruction in a multiple acts case. Accordingly, we find that the prosecutor’s statements were gross and flagrant.
In analyzing whether a prosecutor’s misconduct was motivated by ill will, we consider whether the misconduct was deliberate, repeated, or in apparent indifference to a court’s ruling. Marshall, 294 Kan. 850, Syl. ¶ 7. At two different times during his closing argument, prosecutor expressed an erroneous understanding of how the unanimity instruction should be applied to the rape counts. But it does not appear to us that the prosecutor deliberately made the statements regarding the unanimity instruction in order to undermine its application. In fact, before he made the statements at issue, the prosecutor referred the jury to the unanimity instruction and told the jury to read it if he was “misquoting” it and later told the jury that if he had said anything during his closing argument that was not “supported by the instructions, clearly look at the instructions.” Furthermore, tire prosecutor never made the statements in apparent indifference to the district court’s ruling. Accordingly, we conclude that the statements were not the result of ill will on the part of the prosecutor.
Finally, we turn to the third factor: Was the evidence of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors? In answering this question, the State, as the party “benefitting from the prosecutorial misconduct, bears the burden to establish beyond a reasonable doubt that the error did not affect the defendant’s substantial rights, i.e., there is no reasonable possibility the error affected the verdict.” State v. Inkelaar, 293 Kan. 414, 431, 264 P.3d 81 (2011); see, e.g., State v. Raskie, 293 Kan. 906, 918, 269 P.3d 1268 (2012) (finding prosecutor’s misstatement did not affect the outcome of the trial in light of the entire record).
The State contends that the prosecutor’s comments had little effect on the result of the trial given the fact that S.W. disclosed to multiple people that she was sexually abused and described the abuse in a manner that was generally consistent (i.e., Wells took S.W. to Stafford’s house numerous times during the 2006-2007 school year, where Stafford raped and orally sodomized her). Though S.W. could not give exact dates at trial as to when the acts occurred, Riddle stated that S.W. indicated at a November 20th interview that Stafford had touched her after she had started kindergarten but before Halloween. Furthermore, S.W. testified that on the same day she made her disclosure to Robert and Rocky that Stafford was sexually abusing her, Wells had taken her to Stafford’s house earlier that day, where he had again molested her. Consistent with this testimony, Rocky stated at trial that on the same day S.W. made her disclosure to him and Robert about Stafford touching her, Wells had taken S.W. to Stafford’s home earlier that day and had brought her back to the apartment before going out that evening with Stafford. Rocky believed this occurred sometime around December 2006.
Thus, the evidence presented at trial established that Stafford, with Wells’ assistance, raped S.W. multiple times throughout the 2006-2007 school year and that one of these instances occurred prior to Halloween 2006 and a second instance occurred around Christmas 2006. Accordingly, we conclude that prosecutor’s statements regarding the unanimity instruction would likely have had little weight in the minds of the jurors in determining whether Wells was guilty of both rape counts. We also note that the district court properly instructed the jury on the unanimity requirement and that Stafford’s counsel gave a correct explanation of the unanimity instruction during his closing argument. Finally, we note that the jury acquitted Wells of the aggravated criminal sodomy charge alleging anal sodomy. The jury’s verdict for this count was likely based on S.W.’s testimony at trial denying that anyone had ever touched her “bottom” in a way that she did not like. Accordingly, we believe the jury’s verdict shows that the jury carefully considered which charges were established by the evidence presented at trial.
We conclude that the prosecutor’s comments did not improperly prejudice the jury against Wells as to deny her a fair trial.
Alternative Means
Next, Wells argues that the district court’s instruction on aggravated criminal sodomy (oral) established alternative means for committing the crime. In support of this contention, Wells points to the district court’s instruction on sodomy, defining the act in part as “oral contact or oral penetration of die female genitalia or oral contact of the male genitalia.” (Emphasis added.) Wells contends that this definition instructed the jury that it could find her guilty of aggravated criminal sodomy (oral) under two alternative means—oral contact or oral penetration of the female genitalia or oral contact of the male genitalia. Wells concedes that there was evidence of oral contact of the male genitalia (i.e., Stafford placed his penis inside S.W.’s mouth), but she argues that because there was no evidence presented at trial that S.W.’s vagina was ever orally contacted or orally penetrated, her conviction for aggravated criminal sodomy (oral) must be reversed pursuant to the super-sufficiency requirement of State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), and State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994).
As we recently noted in State v. Brown, 295 Kan. 181, Syl. ¶¶ 3-6, 284 P.3d 977 (2012), we begin our analysis of an alternative means issue by looking at the language used in the applicable statute (or in this case, statutes) to determine whether the legislature intended to establish alternative means through the use of tire language at issue. Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal. See State v. Burnett, 293 Kan. 840, 847, 270 P.3d 1115 (2012); see also State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005) (court exercises de novo review over jury unanimity issues). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). An appellate court’s first attempt to ascertain legislative intent is through an analysis of the language employed, giving ordinary words their ordinary meaning. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). If a statute is plain and unambiguous, an appellate court does not need to speculate further about legislative intent and, likewise, the court need not resort to canons of statutory construction or legislative history. Urban, 291 Kan. at 216.
Analysis
In Brown, we provided the following guidelines for determining whether the legislature intended for language of a statute to establish alternative means of committing a crime or whether the language merely describes a single means of committing the crime:
“[I]n determining if the legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is, options that merely describe a material element or describe a factual circumstance that would prove the element? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. Often this intent can be discerned from the structure of the statute. On the other hand, tire legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove the crime. Such descriptions are secondary matters—options within a means—that do not, even if included in a jury instruction, raise a sufficiency issue that requires a court to examine whether the option is supported by evidence.” Brown, 295 Kan. at 199-200.
We also noted in Brown that words or phrases stated in a series and separated by the disjunctive “or” do not establish alternative means of committing a crime if they fail to state additional and distinct ways of committing the subject crime, that is, if they do not require proof of at least one distinct, material element of mens rea, actus reus, or causation. See Brown, 295 Kan. 181, Syl. ¶ 7.
At the time of the offense, K.S.A. 21-3506(a)(l) defined aggravated criminal sodomy as “[s]odomy with a child who is under 14 years of age.” The language at issue in this case comes from K.S.A. 21-3501(2), which defines the act of sodomy as “oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male or female by any body part or object; or oral or anal copulation or sexual intercourse between a person and an animal.” (Emphasis added.)
K.S.A. 21-3506(a)(l) proscribes the aggravated crime of engaging in the act of sodomy with a child who is under 14 years of age. The language and punctuation of K.S.A. 21-3501(2) indicate that there are three general but distinct ways in which one can complete the act of sodomy: (1) oral contact of genitalia, (2) anal penetration, and (3) sexual intercourse with an animal. See State v. Burns, 295 Kan. 951, Syl. ¶ 7, 287 P.3d 261 (2012). We note that each act described within tire definition of sodomy is separate and distinct from tire other—the acts are factually different from one another, and one act is not inclusive of the others. Furthermore, each act is separated by a semicolon, which suggests that the legislature intended for each act to constitute a specific means of completing the general act of sodomy.
Wells contends that the language used to describe the first means of completing the act of sodomy—oral contact of genitalia— contains separate means within itself (i.e., oral contact or oral penetration of the female genitalia is one means and oral contact of the male genitalia is the other means). We reject this argument because the phrase “oral contact or oral penetration of the female genitalia or oral contact of the male genitalia” does not state material elements of sodomy but merely gives a full description of one means of committing sodomy—oral contact of genitalia. The distinction between female and male genitalia contained within tire phrase is superficial and unnecessary. Orally contacting genitalia encompasses both oral contact and oral penetration of the female genitalia as well as oral contact of the male genitalia. See State v. Britt, 295 Kan. 1018, Syl. ¶ 5, 287 P.3d 905 (2012) (reaching same conclusion).
The phrase “oral contact or oral penetration of the female genitalia or oral contact of the male genitalia” does not establish two alternative means of committing sodomy. Instead, the phrase only establishes one means of committing sodomy—oral contact of genitalia. Consequently, though the phrase was used in the juiy instructions to define sodomy, the phrase does not trigger concerns of jury unanimity or demand application of the super-sufficiency requirement. Consequently, Wells is not entitled to reversal of her conviction for aggravated criminal sodomy.
Because we conclude that the jury in this case was not instructed on alternative means of committing aggravated criminal sodomy (oral), we decline to address the State’s argument that Wright (rejecting application of a harmless error analysis in alternative means cases) was wrongly decided.
Limitation of Cross-Examination
Next, Wells argues that the district court erred when it prevented defense counsel from questioning S.W. about how deeply Stafford’s penis penetrated her. Wells argues that such questioning was crucial to her defense because if S.W. had testified that Stafford repeatedly penetrated her with his whole penis, the jury would have found her allegations of sexual abuse less credible given the fact that she was examined and found not to have any injuries to her vagina.
A district court may exercise reasonable control over the scope of cross-examination. A district court’s decision to limit cross-examination is reviewed under an abuse of discretion standard. State v. Parks, 294 Kan. 785, 797, 280 P.3d 766 (2012).
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, in other words, if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, in other words, if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, in other words, if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. [Citation omitted.]” State v. Warrior, 294 Kan. 484, 505, 277 P.3d 1111 (2012).
Applicable Facts
During Wells’ cross-examination of S.W., the following exchange took place:
“[Defense Counsel]: I’m not a girl, so I have to ask this question because I don’t know. I don’t have a girl’s body. How—when you said Reggie’s private went inside your private, how far inside you is that?
“[Prosecutor]: I’m going to object as to relevance.
“The Court: Well, the law does not require anything but any penetration. So limit your cross-examination to that.
“[Defense Counsel]: This goes to physical injuries, your Honor.
“The Court: Well, we don’t have—you can limit your examination to what I’ve told you.
“[Defense Counsel]: All right.
“Q. (By [Defense Counsel]) [S.W.], I’m not going to ask that question of you. Okay.
“A. Okay.
“Q. I’m sorry. How did you know that Reggie’s private was going inside you?
“A. I felt it.
“Q. Okay. Because, see, I’m not a girl, and I don’t know these things. Right? I’m not as smart as you in that way. Did it hurt?
“A. Yeah.
“Q. Did it hurt a lot?
“A. Yes.
“Q. Okay. You know, have you ever cut your hands or something and seen your own blood? Have you ever cut yourself and had a Band-Aid put on?
“A. Um-hum.
“Q. Have you seen your own blood before?
“A. Urn-hum.
“Q. Did you see—when Reggie was doing stuff to you, did you see any of your own blood then?
“A. No.”
After S.W. testified, Gill-Hopple, the director of the Sexual Assault Nurse Examiner Program at Via Christi Medical Center and tire nurse who conducted the sexual assault examination of S.W., testified at length about the signs of physical trauma that likely would be visible following sexual intercourse between an adult male and a young female. Gill-Hopple testified that she examined S.W. on November 9,2007,4 months after S.W. was removed from Wells’ apartment and that she exhibited no signs of acute or healed injuries to her genitalia.
Gill-Hopple testified that there is no medical truth to the perception that penetration of the female sex organ necessarily affects the hymen, i.e., one cannot look at the hymen to determine whether a female is a virgin. She further explained that even if a vagina suffers a tear from being penetrated, there is no guarantee that evidence of the tear will remain after it heals. Accordingly, the time between the last sexual encounter and the sexual assault examination plays a great role in determining whether injuries from the assault will be visible to an examiner. Notably, Gill-Hopple testified that it is “very normal” not to find visible injuries to the vagina 3 to 4 months after a sexual assault and that very rarely do pediatric patients show signs of injury—even when it is confirmed that they have been sexually penetrated and are examined within 72 hours after the encounter.
During cross-examination, Wells’ attorney had the following exchange with Gill-Hopple:
“Q. And scarring—when we talk about the word scarring, that is evidence that there was a tear and now it’s healed up but there’s still some evidence that there had been a tear previously?
“A. That is the typical definition of a scar. Urn-hum.
“Q. And based upon your expert opinion, or if you want to use common sense as well, multiple insertions of a male penis into a five-year-old vaginal opening is going to increase the likelihood of you being able to find tears or scarring?
“A. No, not necessarily.
“Q. So does it matter the depth of the insertion that would increase the likelihood?
“A. That’s possible.”
Neither Wells nor Stafford presented any evidence to contradict Gill-Hopple’s testimony or to suggest that the depth of penetration determined whether a child’s vagina would suffer lasting physical trauma.
Analysis
The question before us is: If S.W. had testified on cross-examination that Stafford’s penis penetrated her deeply, could that testimony be considered relevant in determining whether S.W.’s allegation of rape was credible, given the fact that S.W. exhibited no signs of acute or healed injuries to her genitalia? K.S.A. 60-401(b) defines relevant evidence as evidence that is probative and material. In analyzing whether the evidence is material, the focus is on whether the fact at issue has a legitimate and effective bearing on the decision of the case and is in dispute. Evidence is probative if it has any tendency to prove any material fact. State v. Gilliland, 294 Kan. 519, 540, 276 P.3d 165 (2012).
S.W.’s credibility was a material issue at trial because it certainly had a legitimate and effective bearing on the jury’s determination of whether Wells and Stafford had committed the criminal acts against her. And because Wells and Stafford denied that S.W. was ever sexually abused, S.W.’s credibility was certainly in dispute at trial. But the evidence presented at trial indicates that any testimony S.W. could have given regarding how deeply she was penetrated would have provided little probative value to establishing her lack of credibility.
First, it is unclear what meaningful answer S .W. could have given to the question of how deeply Stafford penetrated her. We question whedier a 7-year-old child would have a baseline for measuring the difference between a “deep” and a “shallow” penetration. Regardless, Wells’ attorney was able to ask S.W. whether the penetration hurt and whether she bled as a result. S.W.’s answers to these questions—that the penetration did hurt but did not cause her bleeding—would indicate that there was penetration enough to cause S.W. pain but not necessarily physical injury. This testimony would be consistent with Gill-Hopple’s testimony at trial stating that pediatric patients rarely show signs of injury after being sexually penetrated. Gill-Hopple noted that this was true even in cases where it is confirmed that the child has been penetrated and is examined within 72 hours after the sexual encounter. Furthermore, Gill-Hopple stated that even if there is a vaginal tear as a result of a sexual encounter, there is no guarantee that evidence of the injury will remain after it heals. Further, she testified that it is normal not to find visible injuries to the vagina 3 to 4 months after a sexual assault. As noted above, Gill-Hopple did not examine S.W. until 4 months after she was removed from Wells’ home.
Based on Gill-Hopple’s testimony, the fact that S.W. exhibited no signs of acute or healed injuries to her genitalia would not have contradicted her claim that Stafford had penetrated her. Accordingly, even if S.W. had testified that Stafford penetrated her deeply, such testimony would have done little to discredit S.W.’s allegation of being raped. Accordingly, we conclude that the district court did not abuse its discretion when it prevented Wells’ attorney from questioning S.W. about how deeply Stafford had penetrated her.
The District Court’s Answer to a Jury Question
Wells next claims that the district court violated her constitutional and statutory rights to be present at all critical stages of her trial when the court—after consulting with the attorneys in the presence of Wells—’answered a question from the jury via written note. Wells contends that instead of employing this method, the district court should have answered the jury’s question in open court while she was present.
A claim that a defendant was deprived of his or her statutory and constitutional right to be present during a portion of the trial raises legal questions that are subject to unlimited review on appeal. State v. Engelhardt, 280 Kan. 113, 121, 119 P.3d 1148 (2005).
Applicable Facts
During jury deliberations, the jury sent out the following question: “May we please have the legal definition of abets.” The district court consulted with the attorneys in the presence of Wells. Defense counsel objected to any definition being provided to the jury, claiming that the proper response was that words are given their common usage and meanings. Over this objection, the court sent the juiy the following written answer: “Abet means to encourage or assist someone.”
Analysis
A criminal defendant has a constitutional and statutory right to be present at all critical stages of his or her trial. See Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353, reh. denied 398 U.S. 915 (1970); K.S.A. 22-3405(1); State v. Bolton, 274 Kan. 1, 4-5, 49 P.3d 468 (2002). K.S.A. 22-3405(1) provides in relevant part: “The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.” We have interpreted K.S.A. 22-3405(1) to mean:
“[A] felony defendant must be present at any stage of the trial when the jury is in the courtroom or when the defendant’s presence is essential to a fair and just determination of a substantial issue. The statutory command of K.S.A. 22-3405(1) is analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause of the federal Constitution that a criminal defendant be present at any critical stage of the proceedings against him oilier.” (Emphasis added.) Engelhardt, 280 Kan. 113, Syl. ¶ 2.
In addition to K.S.A. 22-3405(1), K.S.A. 22-3420(3) provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the infoimation on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.” (Emphasis added.)
Wells cites both K.S.A. 22-3420(3) and State v. Coyote, 268 Kan. 726, 1 P.3d 836 (2000), to support her claim that the district court’s decision to send a written answer back to the jury rather than reading the answer in open court violated her right to be present at all critical stages of her trial. The plain language of K.S.A. 22- 3420(3) does not support Wells’ contention because the statute only requires the presence of the defendant if the jury, after making a request, is taken into the courtroom so it can receive information from tire district court on a point of law. This rule is consistent with our interpretation of K.S.A. 22-3405(1). See Engelhardt, 280 Kan. 113, Syl. ¶ 2 (“[A] felony defendant must be present at any stage of the trial when the jury is in the courtroom or when die defendant’s presence is essential to a fair and just determination of a substantial issue.” [Emphasis added.]). Because the jury never asked to be returned to the courtroom so it could be informed on the legal definition of abets, the district court did not violate K.S.A. 22-3420(3) by answering the jury’s written question via a written note.
Wells’ argument that Coyote supports her position is also without merit. In Coyote, while the jury was deliberating, it sent a written question to tire district court asking for an explanation of an instruction. After briefly discussing the question in chambers with the attorneys but not in the presence of the defendant, the district court sent a written answer back to the jury. We concluded that the district court’s failure to answer die jury’s question in the presence of the defendant violated his statutory and constitutional rights to be present during a critical stage of his trial. Coyote, 268 Kan. at 731-32.
Our holding in Coyote was not based on the fact that the district court failed to answer the jury’s question orally in open court while the defendant was present. Instead, our holding was based on the fact that the defendant was not present during the court’s discussion with the attorneys on how to respond (in writing) to the jury’s question. The basis for our holding is reflected in the procedure we outlined in Coyote for handling a written question from tire jury:
“A trial court, when confronted with a question submitted to it by a jury during deliberations is required to advise counsel, provide the parties with the question, and give them an opportunity for input in the presence of the defendant. Thereafter, the court is required to respond in writing to the jury in the presence of the defendant(Emphasis added.) Coyote, 268 Kan. at 732.
In other words, to ensure that a defendant’s constitutional and statutory right to be present at critical stages of his or her trial is protected, a defendant must be present during the court’s discussion with the attorneys and ultimate decision on how to respond to a written jury question. But there is no need that tire court read the written answer it decided out loud to the jury in open court while tire defendant is present. Simply delivering the answer the court decided upon to the jury via written note is sufficient to satisfy tire defendant’s right to be present. See Coyote, 268 Kan. at 731 (noting that tire district court’s handling of a second written jury question complied with Kansas law; the court’s conduct was described as follows: “The court advised counsel and tire defendant of the question, provided all with an opportunity off the record for input, and after the hearing, resolved tire question submitted. Then the court, in writing, answered the jury question.” [Emphasis added.]); accord Burns, 295 Kan. at 956-57 (approving of procedure outlined in Coyote for answering written question from jury).
We conclude that the district court did not violate Wells’ constitutional and statutory right to be present during all critical stages of her trial when it answered the jury’s question with a written note instead of answering the question in open court while Wells was present. Wells’ right to be present was satisfied because she was present during the district court’s discussion with the attorneys and ultimate decision on how to answer, in writing, the jury’s question.
Cumulative Error
Next, Wells argues that the cumulative effect of the errors committed at her trial substantially prejudiced her right to a fair trial. “Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). A single error cannot constitute cumulative error. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010).
Although we concluded that the prosecutor’s statements regarding the application of the unanimity instruction to the rape counts were improper, we also concluded that the comments were not so prejudicial as to deny Wells a fair trial. Because one error is not sufficient to constitute cumulative error, we conclude that cumulative error did not deny Wells tire right to a fair trial.
The Denial of Wells’ Motion for a Departure Sentence
Wells argues that the district court abused its discretion when it denied her motion for a departure sentence under K.S.A. 21-4643(d) because substantial and compelling reasons existed to justify granting the motion. A district court abuses its discretion if the judicial action:
“(1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (citing State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 [2010]).
Applicable Facts
Prior to sentencing, Wells filed a motion for departure sentence pursuant to K.S.A. 21-4643(d). The motion asserted various grounds supporting departure: a criminal history score of I based on unclassified misdemeanors relating to driving with a suspended license; the influence of alcohol on her criminal activity; her own history of physical and sexual abuse; her participation as an abettor to a dominating personality; her age of 49; and her lack of any future contact with her children.
The district judge denied the motion, stating:
“Well, the court has heard the evidence. I heard the evidence at trial. I heard tire evidence in pretrial motions. I am aware of what happened to other members of the family and what happened in this particular case. I don’t see any reason for granting a departure. I will deny the motion for a departure.”
Notably, at an evidentiary hearing on the State’s pretrial motion to present K.S.A. 60-455 evidence, tire court heard testimony from one of S.W.’s sisters who testified that Stafford had sexual relations with her when she was 12 or 13 years old while Wells was present in the room and encouraging her to perform the sexual acts. This sister also testified that Stafford had molested S.W.’s other sister when she was a child.
Analysis
Jessica’s Law provides that a first-time offender convicted of rape in violation of K.S.A. 21-3502(a)(2) or aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(1) must be sentenced to life imprisonment with a minimum term of not less than 25 years “unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” K.S.A. 21-4643(a)(1), (d). K.S.A. 21-4643(d) provides a nonexclusive list of mitigating circumstances a district court may consider when deciding whether to depart from the statutorily prescribed sentence. A district court, however, is not obligated to depart simply because a mitigating factor exists. Rather, a district court has the discretion to either grant or deny the request. In exercising this discretion, a district court first reviews the mitigating circumstances and then weighs those circumstances against any aggravating circumstances, ultimately determining whether substantial and compelling reasons warrant a departure. See State v. Baptist, 294 Kan. 728, 733, 280 P.3d 210 (2012). But Jessica’s Law does not require a district court to state the reasons why it denied a departure motion; the statute only requires the district court state on the record the substantial and compelling reasons for why it granted a departure motion. See K.S.A. 21-4643(d); Baptist, 294 Kan. at 733-35.
Without the second or third prongs of the abuse of discretion standard at issue, Wells essentially asserts no reasonable person would have agreed with the district court’s decision in light of the mitigating factors she asserted in support of her departure motion. But based on the evidence the district court heard indicating that Wells had engaged in the same conduct with her older daughter as she had done with S.W., we conclude that reasonable people would agree that denying the departure motion and imposing a hard 25 life sentence pursuant to Jessica’s Law was appropriate. Accordingly, we conclude that tire district court did not abuse its discretion by denying Wells’ departure motion.
Parole Eligibility After 25 Years
As mentioned above, the district court ordered Wells to serve three concurrent hard 25 life sentences as a result of being convicted of two counts of rape in violation of K.S.A. 21-3502(a)(2) and one count of aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(l). Wells argues on appeal that she should be eligible for parole after 20 years under K.S.A. 22-3717(b)(2) instead of 25 years under K.S.A. 21-4643(a) and K.S.A. 22-3717(b)(5).
After both parties filed their appeal briefs in this case, we rejected this argument in State v. Hyche, 293 Kan. 602, 604, 265 P.3d 1172 (2011) (quoting State v. Cash, 293 Kan. 326, Syl. ¶ 1, 263 P.3d 786 [2011]) (“ ‘Notwithstanding the overlap in the parole eligibility rules contained in K.S.A. 2008 Supp. 22-3717[b][2] and [b][5], an inmate sentenced to an off-grid, indeterminate hard 25 life sentence pursuant to K.S.A. 21-4643 shall not be eligible for parole until that inmate has served the mandatory 25 years in prison.’ ”). Therefore, we conclude the district court did not err in determining that Wells would be eligible for parole after serving 25 years in prison pursuant to K.S.A. 21-4643(a).
Affirmed. | [
-16,
-22,
-51,
-65,
14,
67,
42,
56,
19,
-77,
33,
115,
-119,
-53,
4,
121,
17,
127,
-44,
105,
-111,
-73,
7,
-55,
-10,
-13,
-15,
-43,
-78,
77,
-4,
-99,
76,
112,
-126,
-11,
98,
-56,
113,
-44,
-122,
-125,
-120,
-16,
66,
-126,
38,
111,
122,
15,
53,
28,
-77,
11,
28,
-62,
41,
44,
91,
-1,
24,
-77,
26,
23,
-37,
20,
-77,
-122,
-68,
-57,
120,
38,
-100,
-71,
32,
-24,
-5,
-106,
-126,
-12,
79,
-117,
-83,
100,
107,
33,
52,
-57,
-8,
9,
-66,
95,
-115,
-91,
-104,
24,
33,
44,
-97,
-35,
84,
86,
43,
-6,
-25,
-123,
63,
-28,
-96,
-49,
-68,
-111,
-55,
51,
-64,
-8,
-29,
33,
17,
101,
-57,
-30,
84,
23,
120,
-109,
-114,
-74
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied.
Unpublished | [
-105,
125,
-51,
62,
-88,
33,
18,
30,
-98,
-113,
103,
119,
-49,
-29,
-116,
-37,
-83,
103,
-92,
91,
77,
51,
127,
-27,
98,
91,
-94,
-3,
-15,
111,
-8,
48,
76,
56,
-102,
117,
-62,
-120,
-115,
88,
-122,
7,
-103,
-116,
-111,
65,
36,
99,
104,
15,
17,
-44,
-15,
-82,
30,
65,
-64,
102,
-59,
-83,
-64,
-35,
-111,
31,
-65,
84,
-62,
85,
-48,
11,
-62,
110,
16,
-80,
37,
-24,
118,
-26,
-106,
85,
11,
-7,
-76,
32,
10,
32,
44,
-91,
40,
60,
27,
78,
45,
-92,
-5,
41,
75,
57,
-110,
-3,
16,
-107,
39,
58,
98,
-60,
45,
104,
46,
-17,
116,
-93,
31,
40,
12,
-119,
-13,
118,
18,
52,
-49,
-43,
-36,
-78,
53,
-114,
-58,
48
] |
Denied
51 Kan. App. 2d 50 | [
19,
107,
-19,
92,
-116,
-96,
-125,
30,
89,
-75,
117,
83,
-17,
-42,
4,
123,
-2,
111,
-75,
122,
-53,
-74,
127,
72,
82,
91,
-53,
-43,
-8,
111,
-16,
-112,
76,
-16,
-118,
87,
-62,
-54,
-83,
88,
-100,
4,
-103,
-51,
-111,
-117,
56,
-29,
122,
7,
17,
-116,
-15,
44,
30,
-63,
-127,
124,
-53,
-67,
-55,
-15,
-103,
-107,
-4,
20,
-32,
20,
-112,
65,
80,
126,
-112,
-111,
33,
-24,
114,
38,
-122,
117,
67,
-101,
-95,
108,
98,
35,
40,
-19,
124,
46,
30,
26,
-115,
-90,
-109,
9,
107,
25,
-106,
-99,
105,
-106,
15,
-6,
99,
-124,
31,
108,
-118,
-18,
-8,
-77,
-97,
121,
-116,
17,
-17,
-108,
-112,
49,
-33,
-16,
74,
-57,
-71,
90,
-42,
-80
] |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.