text
stringlengths 9
720k
| embeddings
sequencelengths 128
128
|
|---|---|
Denied
50 Kan. App. 2d 405 | [
23,
107,
-20,
124,
-116,
-95,
-125,
14,
25,
-5,
117,
83,
-17,
-34,
4,
123,
-33,
109,
-75,
123,
-49,
-78,
127,
64,
82,
91,
-37,
-35,
-7,
107,
-16,
-108,
76,
-16,
-86,
87,
-62,
-54,
-115,
88,
-116,
4,
-103,
-51,
-111,
-125,
60,
-29,
122,
7,
17,
-115,
-13,
40,
26,
-63,
-127,
108,
-53,
-67,
-39,
-7,
-71,
-107,
-2,
20,
-32,
20,
-108,
65,
80,
126,
-112,
-47,
33,
-24,
114,
38,
-122,
117,
67,
-103,
-95,
-20,
98,
35,
40,
-19,
124,
47,
14,
28,
13,
-90,
-46,
8,
107,
9,
-106,
-99,
121,
22,
11,
-6,
107,
-124,
15,
108,
-118,
-1,
-8,
-77,
11,
49,
-116,
17,
-17,
-108,
-112,
49,
-33,
-16,
78,
-57,
49,
26,
94,
-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Unpublished | [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Unpublished | [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Unpublished | [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,
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; remanded to Ct. of App.
Unpublished | [
-80,
107,
-3,
31,
42,
32,
50,
-98,
66,
-51,
39,
91,
-65,
-37,
20,
17,
-73,
111,
117,
123,
-34,
-109,
119,
-63,
-44,
-13,
-109,
95,
-7,
-18,
-2,
-110,
76,
-96,
-102,
21,
70,
-119,
-49,
88,
-122,
5,
-104,
-52,
17,
66,
36,
35,
104,
15,
49,
-42,
-31,
46,
27,
65,
72,
44,
-49,
-75,
-47,
-3,
-71,
7,
-5,
22,
-125,
20,
-100,
-53,
80,
46,
-108,
56,
1,
-54,
114,
-76,
-122,
86,
75,
-69,
-96,
32,
98,
0,
117,
-19,
-80,
-72,
7,
-50,
45,
-90,
-39,
72,
72,
104,
-100,
127,
21,
20,
39,
124,
107,
-108,
29,
108,
10,
-34,
-12,
-77,
-33,
104,
-116,
3,
-25,
39,
-112,
36,
-60,
52,
92,
-30,
49,
-109,
-42,
-10
] |
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
51 Kan. App. 2d 308 | [
-107,
107,
-19,
60,
-116,
-128,
2,
15,
25,
-69,
117,
115,
-17,
-46,
4,
125,
-2,
47,
49,
120,
-55,
-74,
95,
-56,
82,
90,
-37,
-35,
-8,
111,
-16,
-79,
76,
112,
-54,
-107,
-62,
-54,
-83,
88,
-116,
5,
-103,
77,
17,
-117,
60,
-25,
122,
7,
53,
-107,
-13,
44,
26,
-63,
-127,
108,
-37,
-67,
-56,
-15,
-103,
-107,
124,
20,
-30,
20,
-104,
65,
64,
126,
-108,
-111,
33,
-24,
115,
38,
-122,
116,
103,
-101,
-119,
101,
66,
35,
40,
-17,
60,
-82,
30,
26,
-115,
-90,
-109,
9,
107,
27,
-110,
-67,
121,
84,
11,
-6,
107,
-124,
31,
124,
-118,
-18,
-8,
-77,
-113,
121,
-124,
9,
-17,
-124,
-112,
49,
-33,
-12,
78,
-41,
57,
-38,
70,
-68
] |
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Roger Batt,’of Wichita, an attorney admitted to the practice of law in Kansas in 1991.
On February 9, 2012, the office of tire Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on May 15,2012, where the respondent appeared pro se. The hearing panel determined that respondent violated KRPC 1.3 (2011 Kan. Ct. R. Annot. 433) (diligence); 1.4(a) (2011 Kan. Ct. R. Annot. 452) (communication); 1.16(a)(3) and (d) (2011 Kan. Ct. R. Annot. 535) (termination of representation); 3.2 (2011 Kan. Ct. R. Annot. 552) (expediting litigation); 8.4(d) (2011 Kan. Ct. R. Annot. 618) (engaging in conduct prejudicial to the administration of justice); and Kansas Supreme Court Rule 207(b) (2011 Kan. Ct. R. Annot. 314) (failure to cooperate in disciplinaiy 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 FACT
“DA10397
“6. [M.B.], an inmate at the Lansing Correctional Facility, retained the Respondent to represent him in relation to his brother’s probate case. The administrator of the estate asserted that Mr. [B.] was financially obligated to the estate. The issue was how the administrator offset the financial obligation against the inheritance Mr. [B.] was entitled to receive from his brother's estate.
“7. The administrator filed a petition and scheduled a hearing on the petition.
“8. The Respondent failed to maintain adequate communication with Mr. [B.].
“9. The Respondent failed to attend the hearing on the petition. The Respondent failed to inform Mr. [B.] of the scheduled hearing. The Court entered judgment against Mr. [B.] for the financial obligation.
“10. As a result of the Respondent’s failure to communicate, Mr. [B.] terminated tire Respondent’s representation. After Mr. [B.] terminated the Respondent’s representation, the Respondent failed to timely withdraw from the representation.
"11. The Respondent ultimately refunded the full retainer to Mr. [B.].
“DAI 1079
“12. The Respondent was appointed to represent the natural mother in an appeal of the termination of her parental rights to the Kansas Court of Appeals in a case titled In re D.O.,Jr., T.A.O., M.L.P., appellate case number 103,755.
“13. The Court informed the Respondent that the case would be expedited and no extensions of time would be granted. The Respondent failed to file a brief by the deadline.
“14. The Court extended the time for the Respondent to file the brief. Again, the Respondent failed to file the brief.
“15. As a result of tire Respondent’s failure to file a brief, the Court dismissed the appeal and the natural mother lost her opportunity to have the Court of Appeals review the order terminating her parental rights.
“DA11106
“16. [J.D.W.] retained the Respondent to represent her in a guardianship case involving her son. Previously, as a result of financial difficulties, Ms. [W.] allowed her mother, [S.K.S.], to care for the child. When Ms. [W.’s] financial difficulties improved she sought to have die child returned to her care but Ms. [S.] refused and filed a guardianship case.
“17. Ms. [W.] paid the Respondent $1,500 for the representation and the Respondent entered his appearance.
“18. The Respondent agreed to continue the case, contraiy to Ms. [W.’s] wishes. After agreeing to the continuance, Ms. [W.] never heard from the Respondent again.
“19. On February 22, 2010, Ms. [W.] wrote to the Respondent directing him to withdraw from the representation. The Respondent failed to withdraw from die representation.
“20. Ms. [W.] hired a subsequent attorney, Stephen M. Turley. Mr. Turley filed an emergency motion. As a result of Mr. Turley’s actions, Ms. [W.’s] son was returned to her.
“21.Eventually, the Respondent refunded Ms. [W.’s] entire retainer.
“DA11187
“22. [J.D.] retained the Respondent to represent her in a post-divorce child custody matter. Ms. [D.] paid the Respondent $2,500.00 for the representation.
“23. The Respondent informed Ms. [D.] that the summer of 2009 was the best opportunity for Ms. [D.] to attempt to gain residential custody of three of her children. The Respondent filed a motion in behalf of Ms. [D.] for a change of custody.
“24. Ms. [D.] repeatedly attempted to contact the Respondent by telephone. Ms. [D.] left many messages for the Respondent on the Respondent’s answering machine and the Respondent’s voice mail. The Respondent failed to return Ms. [D.’s] telephone calls.
“25. After the Respondent filed the motion, tire Respondent did not have any additional contact with Ms. [D.] or the Court.
“26. Ms. [D.] requested that the Respondent return the unearned attorney fees. The Respondent failed to return the unearned fees. Ms. [D.] contacted the fee dispute committee for assistance. The fee dispute committee contacted the Respondent in an attempt to address Ms. [D.’s] grievance. The Respondent failed to respond to the fee dispute committee.
“27. Eventually, Ms. [D.] filed a small claims action against the Respondent. On the day of trial, the Respondent appeared and refunded the entire attorney fee plus interest. As a result, Ms. [D.] dismissed the small claims action.
“28. Ms. [D.], however, lost the opportunity to attempt to regain custody of three of her children.
“DA1126S
“29. In a child in need of care case, the Respondent entered his appearance in behalf of the natural mother. The natural mother’s parental rights were terminated and the Respondent filed a timely notice of appeal, in In re L.Z.M.T., appellate case number 105,153.
“30. The Respondent filed a request for a transcript. However, the Respondent’s request was misdirected for some period of time. At the same time, the Kansas Court of Appeals issued an order expediting the appeal.
“31. The Respondent failed to timely file the brief in behalf of his client. Due to the misdirection of the transcript request, the Respondent did not have a copy of the transcript. The Respondent failed to file a request with the Court to grant an extension of time to allow him to obtain a copy of the transcript.
“32. Despite the Respondent’s failure to request an extension of time, the Court set a new deadline for the Respondent’s brief. The new deadline was during file holiday season. The Respondent did not learn of the new deadline because he did not open his mail during the holiday season. The Respondent failed to file tire brief by the new deadline. As a result, the Court dismissed the appeal.
“33. Later, the Respondent filed a motion to reinstate the appeal. The Court granted the motion, the Respondent filed a brief, and the Court has issued its opinion in this case.
“DA11414
“34. In December, 2009, [D.R.], a disabled individual, retained the Respondent to file a bankruptcy case. The Respondent did some work on Mr. [R.’s] bankruptcy case. However, the Respondent failed to timely file the bankruptcy case. As of August 2011, the Respondent had not filed the bankruptcy case in behalf of Mr. [R],
“35. Mr. [R.] repeatedly tried to contact the Respondent. The Respondent did not return Mr. [R.’s] telephone calls.
“36. On August 2, 2011, Mr. [R.] filed a complaint with the Disciplinary Administrator’s office. The Respondent failed to timely cooperate during the disciplinary investigation.
“37. Eventually, the Respondent refunded Mr. [R.’s] attorneys fees.
“DA11471
“38. The Respondent was appointed to represent the natural mother in an appeal of the termination of her parental rights to the Kansas Court of Appeals in a case titled In re J.T.R. and J.M.R., appellate case number 106,863.
“39. The natural mother requested that tire Respondent withdraw from the representation based upon communication issues. The Court issued an order to show cause why the Respondent should not be replaced as counsel. The Respondent failed to respond to the Court and the Court removed the Respondent as counsel of record.
“40. The Respondent’s registration address was a post office box. Without providing a new address to the Clerk of the Appellate Courts, the Respondent closed the post office box. As a result, mailings from the Clerk of the Appellate Courts were returned. Eventually, on December 15, 2011, the Respondent changed his address.
“Attorney Diversion Program
“41. On March 19, 2009, Ms. [K.] wrote to the Respondent, informing him that the Review Committee concluded that the Respondent should be informally admonished or, as an alternative, could participate in die attorney diversion program regarding case DA10397.
“42. On August 20, 2009, Ms. [K.] forwarded the proposed diversion agreement to the Respondent. The Respondent did not sign and return die diversion agreement.
“43. On December 3, 2009, Ms. [K.] wrote to the Respondent, enclosing a second copy of the diversion agreement. Ms. [K.] provided the Respondent with an additional week to execute the diversion agreement. Again, the Respondent did not sign and return the diversion agreement.
“44. On December 23, 2009, Ms. [K.] wrote to the Respondent again, noting his failure to respond to an offer to resolve the case by informal admonition. Ms. [K.] informed the Respondent that based upon his failure to respond, the matter would proceed to hearing unless he responded by January 8, 2010. The Respondent did not respond by January 8, 2010.
“45. In April, 2010, the second disciplinary complaint, DA11079, was filed against the Respondent.
“46. On April 7, 2010, Ms. [K.J wrote to the Respondent again, informing him that she scheduled an informal admonition in DA10397 for May 5,2010. The Respondent did not appear for the informal admonition on May 5, 2010.
“47. On May 6,2010, Ms. [K.J wrote to the Respondent, asking him to contact her to discuss how the case would proceed.
“48. Three additional disciplinary cases were filed with the Disciplinary Administrator, against the Respondent, cases numbered DA11106, DA11187, and DA11265.
“49. On May 4, 2011, Ms. [K.J wrote to the Respondent again. Ms. [K.J renewed the Review Committee’s offer to allow the Respondent to participate in the attorney diversion program.
“50. On May 20, 2011, the Respondent wrote to Ms. [K.J, expressing interest in applying for the attorney diversion program. On June 14, 2011, the Respondent and Ms. [K.] executed a diversion agreement.
“51. The Respondent failed to comply with the terms and conditions of the diversion agreement. Additionally, two more disciplinary complaints were filed against the Respondent. The Review Committee revoked the Respondent’s diversion agreement and traditional disciplinary proceedings resumed.
“CONCLUSIONS OF LAW
“52. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.16, KRPC 3.2, KRPC 8.4, and Kan. Sup. Ct. R. 207, as detailed below.
“53. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to diligently and promptly represent his clients in this case. The Respondent failed to provide diligent representation to Mr. [B.], the natural mothers in the three appellate cases, Ms. [W.], Ms. [D.], and Mr. [R.J. The Respondent repeatedly failed to do what he was appointed or retained to do—represent his clients in their pending cases. As a result of the Respondent’s lack of diligence, appellate cases were dismissed, cases were delayed, opportunities were lost, and financial troubles continued. Because the Respondent repeatedly failed to act with reasonable diligence and promptness in representing his clients, the Hearing Panel concludes that the Respondent repeatedly violated KRPC 1.3.
“54. 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 repeatedly failed to return his clients’ telephone calls and when he failed to provide his clients with pertinent information regarding their cases. The Respondent failed to adequately communicate with Mr. [B.J, Ms. [W.], Ms. [D.J, and Mr. [R.J. Accordingly, the Hearing Panel concludes that the Respondent repeatedly violated KRPC 1.4(a).
“55. KRPC 1.16(a) requires that attorneys -withdraw from the representation of clients in certain situations. Specifically, KRPC 1.16(a)(3) requires that attorneys withdraw from the representation of a client if the client discharges the attorney. In this case, Mr. [B.] terminated the Respondent’s representation and the Respondent failed to withdraw. Additionally, Ms. [W.] wrote to die Respondent directing him to withdraw from his representation. The Respondent failed to do so. Finally, in appellate case number 106,863, tire Respondent’s client directed him to withdraw from the representation. Again, tire Respondent failed to withdraw from the representation. Thus, the Hearing Panel concludes that the Respondent violated KRPC 1.16(a)(3) on three occasions.
"56. KRPC 1.16 also requires lawyers to take certain steps to protect clients after the representation has been terminated. Specifically, KRPC 1.16(d) provides the requirement in this regard:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
Ms. [D.] directed the Respondent to refund the unearned fees. The Respondent did not respond to Ms. [D.’s] direction. Ms. [D.] sought the assistance of the fee dispute committee. The Respondent ignored the fee dispute committee’s contacts. Ms. [D.] was forced to file a small claims action before the Respondent refunded the unearned fees. The Respondent violated KRPC 1.16(d) when he failed to timely refund the unearned fees. The Hearing Panel concludes that the Respondent violated KRPC 1.16(d).
“57. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. The Respondent’s conduct caused extreme delay in cases in District Court and the Kansas Court of Appeals. The Respondent failed to expedite litigation consistent with the interests of his clients in six cases. Accordingly, tire Hearing Panel concludes that the Respondent repeatedly violated KRPC 3.2.
“58. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Respondent engaged in ‘conduct that is prejudicial to tire administration of justice’ when he failed to file briefs in two of the appellate cases and when he failed to respond to tire Kansas Court of Appeals order to show cause in the third appellate case. As such, the Hearing Panel concludes that tire Respondent violated KRPC 8.4(d) in three cases.
“59. Lawyers must cooperate in disciplinary investigations. Kan. Sup. Ct. R. 207(b) provides the requirement in tins regard.
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, 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.’
The Respondent knew that he was required to forward a written response to the initial complaint—he had been instructed to do so in writing by the Disciplinary Administrator and by the attorney investigator. Because the Respondent knowingly failed to provide a written response to the initial complaint filed by Mr. [R.] as requested by the Disciplinary Administrator and the attorney investigator, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 207(b).
“AMERICAN BAR ASSOCIATION “STANDARDS FOR IMPOSING LAWYER SANCTIONS
"60. 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 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.
“61. Duty Violated. The Respondent violated his duty to his clients to provide diligent representation and adequate communication. The Respondent also violated his duty to his clients to properly deal with their property. Further, the Respondent violated his duty to the legal system to expedite litigation. Finally, the Respondent violated his duty to the legal profession to cooperate in disciplinary investigations.
“62. Mental State. The Respondent knowingly violated his duties.
“63. Injury. As a result of the Respondent’s misconduct, the Respondent caused actual serious injury to his clients and to the legal system.
“64. 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 the following aggravating factors present:
“65. A Pattern of Misconduct. Seven complaints were filed against the Respondent. Each of the complaints involved similar misconduct. As such, the Hearing Panel concludes that the Respondent engaged in a pattern of misconduct.
“66. Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.16(a)(3), KRPC 1.16(d), KRPC 3.2, KRPC 8.4(d), and Kan. Sup. Ct. R. 207. Accordingly, the Hearing Panel concludes that the Respondent committed multiple offenses.
“67. Vulnerability of Victim. The Respondent’s clients were vulnerable. One was in prison, three were parents whose parental rights had been terminated, one was in dire financial straits, and two were in need of assistance in relation to child custody matters. The Hearing Panel concludes that each of the Respondent’s seven clients were vulnerable.
“68. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law in the State of Kansas in 1991. The Respondent had substantial experience in the practice of law prior to engaging in the misconduct.
“69. Mitigating circumstances are any considerations or factors that may justify a reduction in tire degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found die following mitigating circumstances present:
“70. Absence of a Prior Disciplinary Record. The Respondent has no record of prior discipline.
“71. Absence of a Dishonest or Selfish Motive. The Respondent’s misconduct does not appear to have been motivated by dishonesty or selfishness.
“72. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The Respondent suffers from depression. Additionally, many personal tragedies occurred in the Respondent’s personal life during the period of misconduct. The Hearing Panel concludes that die Respondent’s personal and [emotional] problems contributed to die violations in this case.
“73. Timely Good Faith Effort to Make Restitution or to Rectify Consequences of Misconduct. The Respondent has refunded all unearned fees. The Hearing Panel concludes, however, that die Respondent’s efforts to make restitution were not necessarily timely.
“74. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressiom. The Respondent fully and freely acknowledged his wrongdoing. The Respondent’s attitude of cooperation is a mitigating factor.
“75. Remorse. At the hearing on this matter, the Respondent expressed genuine remorse for engaging in the misconduct.
“76. In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘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 injury or potential injury to a client.’
“RECOMMENDATION
“77. The Disciplinary Administrator recommended that the Respondent be indefinitely suspended from the practice of law. The Respondent requested that his plan of probation be adopted and that he be allowed to close down his office in June 2012, and cease practicing law. During his testimony, Mr. Johnson [Batt’s former office partner] suggested that the Respondent be transferred to inactive status.
“78. The Hearing Panel will first address Mr. Johnson’s suggestion. When disciplinary complaints are pending, transferring to inactive status does not impact on the completion of a disciplinary case. The Respondent is free to register as an inactive attorney. However, registering as an inactive attorney does not stop or change the outcome of a disciplinary proceeding. The disciplinary proceeding must be completed regardless of whether the Respondent is registered as active or inactive.
“79. No suggestion was made to transfer the Respondent to disabled inactive status. Transferring an attorney to disabled inactive status requires certain proof not presented during the hearing on the formal complaint. See Kan. Sup. Ct. R. 220.
“80. The Hearing Panel will next turn its attention to the Respondent’s request for probation. Kan. Sup. Ct. R. 211(g) sets forth the procedure for an attorney to be placed on probation. That rules provides:
‘(1) If the Respondent intends to request that the Respondent be placed on probation for violating tire 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 heailng 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 the 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;
(in) the misconduct can be corrected by probation; and
(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.’
“81. Unfortunately, probation is not appropriate in this case. First, the Respondent failed to develop a workable, substantial, and detailed plan of probation. Second, the Respondent failed to put the proposed plan of probation into effect prior to tire hearing on the formal complaint. Next, the Respondent’s misconduct cannot be corrected by probation. Finally, placing the Respondent on probation is not in the best interests of tire legal profession and the citizens of the State of Kansas.
“82. In determining what sanction to recommend to the Kansas Supreme Court, tire Hearing Panel is persuaded by language found in the commentary following ABA Standard 4.42.
‘Suspension should be imposed when a lawyer knows that he is not performing the services requested by the client, but does nothing to remedy the situation, or when a lawyer engages in a pattern of neglect, with the result that the lawyer causes injury or potential injury to a client.’
“83. The Respondent knew that he was not performing the services requested by his client and required for adequate representation. The Respondent did nothing to remedy tire situation. Additionally, the Respondent engaged in a pattern of neglect which resulted in serious injury to his clients.
“84. The Hearing Panel concludes that the Respondent is not in a position to continue with the practice of law at this time. Thus, 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 an indefinite period of time. At the reinstatement hearing, the Respondent should establish what steps he has taken to ensure that his mental health issues have been fully addressed and that the Respondent is currently fit to return to the practice of law.
“85. 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 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]).
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. He filed no exceptions to the panel’s final hearing report. As such, the findings of fact are deemed admitted. 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 adopt the panel’s conclusions.
The only issue before us is the appropriate discipline. The hearing panel recommended that respondent be indefinitely suspended from tire practice of law and that he undergo a reinstatement hearing prior to reinstatement. At the hearing before this court, the respondent did not appear. Due to this failure, the office of the Disciplinary Administrator recommended that respondent be disbarred. We agree the failure to appear aggravates the circumstances under consideration.
Conclusion and Discipline
It Is Therefore Ordered that Roger Batt be disbarred from the 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).
It Is Further Ordered that tire costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas reports. | [
-112,
-24,
-36,
30,
11,
96,
58,
42,
89,
-45,
117,
83,
-19,
-29,
1,
59,
113,
25,
-43,
123,
71,
-78,
123,
-63,
102,
-13,
-8,
-43,
-80,
127,
-20,
-100,
73,
48,
-126,
-43,
2,
-62,
-41,
-36,
-82,
3,
9,
-16,
-37,
64,
-80,
109,
23,
13,
85,
30,
35,
42,
17,
-22,
104,
108,
-1,
-81,
-48,
-111,
-5,
-105,
123,
23,
-94,
-121,
-104,
15,
88,
43,
8,
57,
9,
-24,
51,
-74,
-126,
100,
107,
25,
-55,
102,
98,
33,
25,
-91,
-80,
-104,
14,
-104,
-115,
71,
-101,
121,
99,
13,
-106,
-99,
117,
6,
35,
-4,
-26,
4,
29,
-20,
6,
-49,
-44,
-111,
30,
101,
-116,
26,
-21,
-28,
48,
113,
-119,
-26,
93,
-41,
112,
-101,
-66,
-80
] |
In a letter received by the Clerk of the Appellate Courts on December 11, 2012, respondent Robert M. Telthorst, 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.
On October 21, 2011, the respondent was temporarily suspended from the practice of law pending the outcome of disciplinary proceedings against him. On November 14, 2012, the respondent pleaded guilty to two felonies in the United States District Court for the District of Kansas. The crimes to which the respondent pleaded guilty were 18 U.S.C. § 1343 (2006), wire fraud, and 18 U.S.C. § 1956 (2006), money laundering.
This court, having examined the files of the office of the Disciplinary Administrator, finds the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Robert M. Telthorst 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 Robert M. Telthorst 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) amended December 1, 2012. | [
-80,
-22,
-12,
61,
10,
-31,
50,
-72,
89,
-45,
103,
115,
-23,
-38,
0,
123,
67,
89,
17,
107,
-59,
-74,
127,
-127,
38,
-13,
-55,
-59,
-68,
75,
-26,
-99,
89,
48,
-46,
85,
6,
-118,
-31,
88,
-122,
4,
9,
-44,
-54,
-128,
52,
9,
18,
11,
49,
-98,
-14,
42,
29,
-61,
8,
108,
123,
-51,
81,
-111,
-103,
29,
121,
17,
-77,
20,
-104,
7,
-40,
47,
-116,
-71,
9,
-7,
115,
-74,
6,
100,
71,
-23,
12,
102,
34,
35,
113,
-83,
-68,
-128,
46,
123,
-99,
-29,
-47,
76,
99,
-120,
-106,
-99,
116,
22,
3,
-36,
40,
6,
21,
108,
31,
-53,
-44,
-109,
-97,
119,
-114,
-101,
-2,
-25,
17,
85,
-42,
-28,
94,
83,
56,
-97,
-114,
-11
] |
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
] |
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
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
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
Biles, J.:
This is a class action for underpayment of royalties claimed under 25 oil and gas leases entered into between 1944 and 1991. The controversy arises because the lessee-operator sells its raw natural gas at the wellhead to third parties, who in turn process the gas before it enters the interstate pipeline system. The price tire operator is paid—and upon which royalties have been calculated—-is based on a formula that starts with the price those third parties receive for the processed gas (or a published index price) then deducts certain costs incurred or adjustments made. The class argues those subtracted costs and adjustments are the operator s sole responsibility because the gas is not in a marketable condition when it leaves the wellhead, so the royalties the class receives are less than they should be. It is represented to us that most natural gas produced in Kansas is sold under formula-based purchase agreements similar to those in this case.
The issue has been stated in various ways, but in its simplest form the court must decide whether the operator may take into account the deductions and adjustments identified in the third-party purchase agreements when calculating royalties. The district court granted summary judgment to the class for an as-yet undetermined amount of unpaid royalties. The Court of Appeals affirmed. Fawcett v. Oil Producers, Inc. of Kansas, 49 Kan. App. 2d 194, 195, 306 P.3d 318 (2013). We reverse on the issue subject to our review and remand for further proceedings.
The operator sold the gas at the well to various purchasers. Fawcett, 49 Kan. App. 2d at 199 (“[T]he geography of the sale of gas was at the well and the geography for the computation of the royalty was also at the well.”)- Under Kansas law, the leases imposed on the operator an implied duty to market the minerals produced. See Robbins v. Chevron U.S.A., Inc., 246 Kan. 125, 131, 785 P.2d 1010 (1990) (implied duty to market); Gilmore v. Superior Oil Co., 192 Kan. 388, 392, 388 P.2d 602 (1964); see also Smith v. Amoco Production Co., 272 Kan. 58, 81, 31 P.3d 255 (2001). To satisfy this duty, the operator had to market its production at reasonable terms within a reasonable time following production. See Smith, 275 Kan. at 81.
Whether the operator fulfilled this implied duty by entering into these purchase agreements depends on the circumstances as to the terms and time of sale, which are not in dispute in this case. Instead, the class invokes the “marketable condition rule,” which is a corollary of the duty to market. Broadly speaking, the rule requires operators to malee gas marketable at their own expense. See Sternberger v. Marathon Oil Co., 257 Kan. 315, 330, 894 P.2d 788 (1995) (“The lessee has the duty to produce a marketable product, and the lessee alone bears the expense in making the product marketable.”).
The class contends raw natural gas coming from the well is not marketable until it enters an interstate pipeline, so its royalties cannot be reduced by the deductions in these purchase agreements relating to transforming the gas into a condition suitable for that transmission system. We disagree. We hold these leases do not impose on the operator as a matter of law the responsibility to perform the post-production, post-sale gathering, compressing, dehydrating, treating, or processing that may be necessary to convert the gas sold at the wellhead into gas capable of transmission into interstate pipelines.
The class was not entitled to summary judgment, except as to conservation fees, which the operator concedes were wrongly deducted prior to the royalty calculation based on our recent decision in Hockett v. The Trees Oil Co., 292 Kan. 213, 251 P.3d 65 (2011) (conservation fee is expense attributable solely to well operator). That issue was resolved by the district court and is not in controversy on appeal.
Factual and Procedural Background
Production of natural gas is a complicated process. Title to the gas can change hands numerous times as it travels from the ground to an eventual end user. In this case, the chain starts with the plaintiff class, which consists of mineral rights owners, who lease their rights in exchange for a royalty interest in the oil and gas produced. The L. Ruth Fawcett Trust represents the class based on its royalty interests located in Seward County. We refer to the plaintiff class as “Fawcett.” Oil Producers, Inc. of Kansas (OPIK) is the lease operator, which means it owns the wells from which the oil and gas are produced. See Williams & Meyers, Manual of Oil and Gas Terms, pp. 709, 815 (15th ed. 2012) (defining operator and producer).
Natural gas coming from the ground in its raw condition is not suitable for transportation in interstate pipelines. For our purposes, it is sufficient to note that natural gas must meet certain quality specifications before it can enter an interstate gas pipeline and it must be processed to achieve those specifications. Some of this may occur at the wellhead, such as when an operator performs separating or dehydrating, as needed. But most processing required to transform raw natural gas into pipeline-quality gas occurs away from the wellhead, such as at processing plants, where other valuable components of the raw gas can be isolated and sold separately. See www.naturalgas.org for a summary of the industry process; see also Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc., 281 F.R.D. 477, 479-80 (D. Kan. 2012), vacated by 725 F.3d 1213 (10th Cir. 2013).
OPIK does not charge royalty owners for any services it performs on tire leased premises. But OPIK does not own gathering or processing facilities. Instead, it sells the gas at the wellhead to midstream gatherers and processers (the third-party purchasers), who prepare the raw natural gas for eventual delivery into dre interstate pipeline system. Those third-party purchasers take title to the gas at the wellhead; transport it to processing plants; process it, separating tire natural gas and the natural gas liquids contained in the raw gas; and eventually sell the natural gas and natural gas liquids to someone else. The price OPIK gets for the raw gas is dependent in the first instance on what the third-party purchasers are paid for the processed gas or a contractually set index price.
The operator and amici argue these gas sales contracts are structured to allow OPIK and its royalty owners to jointly share in higher “downstream” market values as die gas gets closer to the consumer-—after the specified expense deductions to account for services provided by the third-party purchasers to process the gas and transport it from the wellhead to the downstream resale location. But from Fawcett’s perspective, its royalty payments are being re duced for expenses Fawcett claims are OPIK’s sole responsibility. In other words, because OPIK pays Fawcett a percentage of what OPIK receives, Fawcett proportionately shares in these expenses. A closer look at the leases and the contracts helps to understand how the parties get paid.
The 25 leases in issue vary in their exact language, including the fraction that represents tire amount owed to the royalty owner; but the parties stipulated the leases take two general forms as to tire royalty due for the gas sold on the leased premises:
(1) “lessee [OPIK] shall pay lessor [Fawcett] as royalty Vs of the proceeds from the sale of gas as such at the mouth of the well where gas only is found;” or
(2) “lessee shall monthly pay lessor as royalty on gas marketed from each well where gas only is found, one-eighth (Vs) of the proceeds if sold at the well, or if marketed by lessee off the leased premises, then one-eighth (Vs) of its market value at the well.”
Importantly, the leases do not define what the term “proceeds” means and are silent as to deductions. The dispute between the parties is centered here and with the third-party purchase agreements.
Simplified, third-party purchasers pay OPIK for the raw gas received at the wellhead based on a percentage of specified index prices or the third-party purchasers’ actual revenue when that gas is sold to others, reduced by certain costs. By way of example, consider OPIK’s contract with third-party purchaser ONEOK Midstream Gas Supply, L.L.C.
In exchange for natural gas delivered by OPIK, ONEOK agreed to pay a percentage of its income from the sale of the natural gas and the natural gas liquids recovered from the raw gas—less deductions from the natural gas income for: a “base gathering and compression fee” of 55 cents per MMBtu (one million British thermal units); approximately 6 percent for plant, gathering, and compression fuel; 1.14 percent for fuel lost and unaccounted for; and, if applicable, fees paid to others to deliver the gas to ONEOK’s processing facility. OPIK and ONEOK further agreed the amount due under this formula constituted full consideration for the gas and all of its constituents received at the wellhead by ONEOK. Title to the gas passed to ONEOK at or near the wellhead.
The ONEOK agreement also contains quality requirements for the gas received from OPIK at the well. For example, OPIK must supply gas at a pressure “sufficient to effect delivery” and free of solid and liquid contaminants, hazardous waste, and free water. The gas must contain a minimum percentage of hydrocarbon constituents with a minimum heating value per cubic foot and less than specified amounts of water vapor, hydrogen sulfide, and sulfur. If the gas fails to meet contractual requirements, ONEOK reserves the right to either refuse delivery or accept the gas but deduct treatment costs.
There is no claim costs were ever assessed to the class to meet ONEOK or any other purchasers’ requirements as to the quality of the gas at the time and place OPIK delivered it.
One additional deduction needs highlighting to assist with an understanding of the contractual schemes involved, although its actual importance is minimized by OPIK’s concession before the case was argued to this court. Under the purchase agreements, separate contractual provisions made clear OPIK was responsible for conservation fees assessed under K.A.R. 82-3-307, so if third-party purchasers were required to pay the conservation fees on OPIK’s behalf, those purchasers would deduct that amount from what it paid OPIK for the raw gas. For a time in this case, OPIK argued the conservation fee was an appropriate deduction, i.e., a cost shareable with royalty owners, but that argument was lost when this court decided Hockett.
The district court proceedings
In the district court, the parties each moved for summary judgment. OPIK argued its royalty payments were proper because they were computed on 100 percent of its actual proceeds from its sale of the gas at the wellhead. Fawcett countered that OPIK was required to pay royalties on the “gross” price of the gas as it entered the interstate market, rather than the “net” contract prices set out in the third-party purchase agreements. Fawcett characterized the deductions and adjustments set out in those agreements as subtractions from the gross price.
In response to OPIK’s motion for summary judgment, Fawcett argued the “sale” for royalty purposes occurred when the third-party purchasers resold the processed natural gas and its liquid byproducts, not when OPIK sold the raw gas at the wellhead. Faw-cett claimed the raw gas was not marketable at the well since it was unsuitable for delivery into interstate pipelines. Fawcett argued the deductions in the purchase contracts simply represented expenses to make the gas marketable, which was OPIK’s obligation alone.
The district court granted Fawcett partial summary judgment for “those expenses claimed by [OPIK] such as the ‘gathering charges, compression charges, dehydration, treatment, processing, fuel charges, fuel lost or unaccounted for, and/or third party expenses incurred to make the gas marketable.’ ” It reasoned OPIK owed Fawcett a duty to make the gas marketable free of cost and that OPIK could not avoid responsibility for those costs by contracting with a third party to incur them. Impliedly, the district court determined the deductions in the purchase agreements represented costs required to make the gas marketable.
As a separate matter, the district court granted summary judgment to the class for royalty reductions attributable to the conservation fees based on Hockett, which was issued after the parties had filed for summary judgment. In Hockett, this court held that conservation fees were the operator’s sole responsibility. 292 Kan. at 224.
But the district court made no monetary damage calculation. Instead, it found its partial summaiy judgment order involved a controlling question of law regarding the operator’s legal duty under the leases as to which there was substantial ground for difference of opinion, so an immediate appeal would be beneficial. Upon OPIK’s timely application, the Court of Appeals granted interloc-utoiy review. See K.S.A. 60-2102(c) (interlocutoiy appeals).
The Court of Appeals decision
The Court of Appeals affirmed the order granting the class partial summaiy judgment. Fawcett, 49 Kan. App. 2d at 195. The panel framed the question as whether “the leases in question allow OPIK to pay the royalty owners a royalty based on the gross proceeds of gas sales at the well to gas purchasers less the cost of the stipulated price adjustments contained in the [purchase contracts]?” 49 Kan. App. 2d at 202. The panel held royalty must be paid on the pre-deduction contract prices—-what it termed OPIK’s “gross proceeds.” 49 Kan. App. 2d at 195.
In arriving at that conclusion, the panel agreed that the gas was sold at the well and that the leases require royalty payment based on die proceeds from wellhead sales with no provisions for deductions or adjustments from gas sale contracts. 49 Kan. App. 2d at 199. Then, the panel concluded the term “proceeds” as used in the leases means the money OPIK would have received under the third-party purchase agreements without the deductions specified in those agreements. 49 Kan. App. 2d at 208. To reach that conclusion, the panel noted that operators are obligated to produce a marketable product, which the panel held did not occur until the gas reaches mainline transmission pipeline quality. 49 Kan. App. 2d at 203-04.
The panel then determined OPIK’s obligation prohibits deductions from royalties except as might be expressly authorized in the lease, noting no such language appears. 49 Kan. App. 2d at 205. Finally, having concluded OPIK could not deduct from royalties the expenses represented as deductions or price adjustments in the purchase agreements, the panel held OPIK could not contract with third-party purchasers to provide the services the operator was required to provide. 49 Kan. App. 2d at 207.
The panel relied heavily on Davis v. Key Gas Corp. 34 Kan. App. 2d 728, 731, 124 P.3d 96 (2005), in which another Court of Appeals panel held that an oil and gas lease expressly prohibiting operators from directly taxing any transportation or other expenses to royalty owners prohibited those operators from doing so indirectly through third-party purchase contracts. The Fawcett panel wrote in summation:
“The language used in the leases valued the gas at the well. Moreover, the leases obligated OPIK to market the gas at the well. Under Kansas law, the leases make it clear that the royalty is to be computed on the gross proceeds of gas sales at the well. Because no special provision in the leases allowed OPIK to compute royalties based on the gross proceeds of gas sales at the well less tire cost of the stipulated price adjustments contained in the gas purchase agreements, we determine that OPIICs arguments fail.” 49 Kan. App. 2d at 208.
In a concurring opinion, Judge Patrick D. McAnany further challenged OPIK’s argument that its lease obligations were satisfied by its production and sale of gas at the wellhead, free of cost to the royalty owners. He characterized this as simplistically contending that if a product can be sold, it is by definition marketable. Judge McAnany criticized this logic as defying common sense because “a demand curve can be drawn for any item that may be subject to a commercial transaction,” and he rejected the idea that “marketability” is established at the “point on every such curve where somebody would be willing to pay for the item.” Fawcett, 49 Kan. App. 2d at 208.
OPIK petitioned this court for review, which was granted. Jurisdiction is proper. See K.S.A. 60-2101(b) (jurisdiction to review court of appeals decision upon petition for review); see also K.S.A. 20-3018(b).
Analysis
The issue before this court is whether OPIK is solely responsible under the common-law marketable condition rule for the costs and adjustments taken by the third-party purchasers. In concluding that the district court and Court of Appeals must be reversed on this point, we first consider OPIICs royalty obligation under the leases and whether the marketable condition rule allocates to OPIK the expense of post-production, post-sale processing to transform the gas as Fawcett claims.
Standard of Review
Our standard of review on summary judgment is well known:
“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 estab lish 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 tire evidence, summary judgment must be denied. [Citations omitted.]” Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009).
Determining OPIK’s royalty obligation and the allocation of expenses under the marketable condition rule requires us to interpret the leases and the express and implied obligations arising from them. The interpretation and legal effect of an oil and gas lease are both questions of law subject to de novo review. See Thoroughbred Assoc. v. Kansas City Royalty Co., 297 Kan. 1193, 1207, 308 P.3d 1238 (2013) (interpreting oil and gas lease de novo). Both parties argue there are no material facts in dispute. As a result, we are focused on Fawcett’s contention that natural gas, as a matter of law, is not marketable for purposes of these oil and gas leases until it enters an interstate pipeline, so Fawcett’s royalties cannot be reduced by the deductions in these purchase agreements.
Discussion
The gas in this case was sold at the wellhead. Fawcett, 49 Kan. App. 2d at 199. The lease language required OPIK to pay Fawcett a fractional share of its proceeds “from the sale of gas as such at the mouth of the well where gas only is found” or “if sold at the well.” Generally,
“An oil and gas lease which provides that the lessee shall pay lessor monthly as royalty on gas marketed from each well one eighth of the proceeds if sold at the well, or, if marketed off the leased premises, then one-eighth of the market value at the well, is clear and unambiguous as to gas sold at the wellhead by the lessee in a good faith sale, and lessor is entitled to no more than his proportionate share of the amount actually received by the lessee for the sale of the gas.” Waechter v. Amoco Production Co., 217 Kan. 489, Syl. ¶ 2, 537 P.2d 228 (1975).
See also Matzen v. Cities Service Oil Co., 233 Kan. 846, 850-51, 667 P.2d 337 (1983) (quoting Waechter, 217 Kan. at 489, Syl. ¶ 2); Lightcap v. Mobil Oil Corp., 221 Kan. 448, 460, 562 P.2d 1 (1977).
The Fawcett panel identified 22 of the 25 leases in this case as Waechter leases, meaning that the royalty clause language is iden tical to the royalty language at issue in the Waechter case. Fawcett, 49 Kan. App. 2d at 198. As to the other three, the panel noted their royalty language is a combination of market value and proceeds leases. But it determined they should nevertheless be deemed Waechter leases because the language pertaining to market value is not applicable since the gas was sold at the wellhead. From this, the panel concluded: “As a result, the geography of the sale of gas was at the well and the geography for calculation of the royalty was at the well.” 49 Kan. App. 2d at 199. The parties have taken no exception to the panel’s conclusions in this regard.
In Hockett, we explained the term “proceeds” in a royalty clause similar to the ones at issue refers to the gross sale price in the contract between the first purchaser and the operator and noted that the cases stating the general rule recited in Waechter and its progeny do not “purport to address the impact on royalties of any deductions from the gross sale price which the purchaser might make to pay expenses attributable to the lessee/seller.” (Emphasis added.) 292 Kan. at 222. The “gross sale price” to which Hockett referred was the price paid for die gas before the purchaser withheld a state-assessed conservation fee, which was statutorily attributable only to the operator. See 292 Kan. at 224.
But unlike conservation fees, which function essentially as a state-assessed mill levy on gas sold by the operator, the third-party purchase contract pricing formulas in this case more clearly represent a negotiated sale price for the gas, i.e., the total sum paid in exchange for the gas delivered at the wellhead. As such, if the question were whether those negotiated formulas produce an adequate price, tiie answer would seem to require a fact-based analysis to determine whether the operator entered into good faith sales and whether the terms of those sales were reasonable under the circumstances. See Smith, 272 Kan. at 82-83; Waechter, 217 Kan. 489, Syl. ¶ 2.
But Fawcett contends something else. It claims OPIK is required to bear the entire expense of transforming raw natural gas into the quality required for transmission into the interstate pipeline system. Fawcett argues the “marketable condition rule,” which is an offshoot of the implied duty to market, imposes on operators the obligation to make gas marketable at tire operators’ own expense. 49 Kan. App. 2d at 197. Fawcett claims raw natural gas sold at the well is not marketable as a matter of law or fact until it is processed and enters an interstate pipeline, so its royalties cannot be reduced by the processing costs that are set out as deductions in the purchase agreements. We disagree with Fawcett’s equating “marketable condition” with interstate pipeline quality.
Under the controlling leases, OPIK owed the class an implied duty to market tire minerals produced. See Smith, 272 Kan. at 81; Robbins, 246 Kan. at 131 (implied duty to market); Gilmore, 192 Kan. at 392. We have said this covenant is implied by “ ‘the facts and circumstances of the case’ but . . . ‘not formally or explicitly stated in words.’ ” Smith, 272 Kan. at 70; see Howerton v. Kansas Natural Gas Co., 81 Kan. 553, 563, 106 P. 47 (1910) (oil and gas lease “contemplated that the well should be operated and gas marketed therefrom”).
To satisfy this duty, an operator must market its production at reasonable terms within a reasonable time following production. See Smith, 272 Kan. at 81. Ordinarily the interests of the lessor (royalty owners) and lessee (operator) will coincide on such matters because the operator will have everything to gain and nothing to lose by selling the product at the best price available. Robbins, 246 Kan. at 131-32. OPIK claims it fulfilled its duty to market by entering into these purchase agreements for sale of the gas at the wellhead and argues tire pricing formulas give both itself and its royalty owners the opportunity to share in higher prices received for the gas as it gets closer to the consumer.
With the duty to market comes the lessee-operator’s obligation to prepare the product for market, if it is unmerchantable in its natural form, at no cost to the lessor (royalty owner). Gilmore, 192 Kan. at 393; see Sternberger, 257 Kan. 315, 330, 894 P.2d 788 (1995). Three Kansas cases have addressed an operator’s duty to prepare gas for market: Gilmore, 192 Kan. 388; Schupbach v. Continental Oil Co., 193 Kan. 401, 394 P.2d 1 (1964); and Sternberger, 251 Kan. 315. We consider each to explain why the district court and Court of Appeals erred.
In Gilmore, the lease language required the operator to pay for gas sold, “as royalty ⅛ of the proceeds of the sale thereof at the mouth of the well.” 192 Kan. at 391. In that case, the operator had been wasting the gas produced by venting it into the atmosphere until it built a compressor station on the lease, which collected and compressed the gas. This allowed the operator to sell the gas, and the operator sought contribution from royalty owners for the compression costs. 192 Kan. at 389-90. In holding the operator could not pass on this expense to the royalty owner, the Gilmore court noted the only purpose for the compressing station was to put enough force behind the gas to enable it to enter the purchaser s pipeline, which was on the lease. The court then cited a treatise for the proposition that if raw gas is unmerchantable, the lessee must prepare it for market free of cost to the lessor. 192 Kan. at 393 (citing Merrill on Covenants Implied in Oil and Gas Leases, § 85, p. 214 [2d ed. 1940]). The Gilmore court reasoned that this compression simply “made the gas marketable and was in satisfaction of the duties of the lessee [operator] so to do.” 192 Kan. at 392.
In Schupbach, which involved virtually identical lease language as Gilmore, the operator similarly installed a compressor station on the leased premises that enabled it to compress gas to a delivery pressure specified by a third-party purchaser. Schupbach, 193 Kan. at 403. Finding Gilmore indistinguishable, the Schupbach court held the operator could not deduct that compression cost from its gross proceeds in computing royalties. 193 Kan. at 406.
Sternberger presented a different question, i.e., what expenses may be deducted from the sale price away from the well to determine market value of the gas at the well. In that case, the gas production was sold off-lease, but the lease language required the operator to “pay royalties of one-eighth ... of the market price at the well for gas sold or used.” (Emphasis added.) 257 Kan. at 321. The operator could not convince a third-party purchaser to build a pipeline to the well, so the operator had to construct its own gas gathering pipeline system to transport gas from the wells to the market. The operator then deducted a proportionate share of the pipeline costs from royalty payments as a recoupment. The court characterized the costs as post-production expenses. It held this deduction was proper—making the royalty owners responsible for a share of tire reasonable expenses to transport the gas to market. 215 Kan. at 331-32.
In so holding, the Stemberger court noted a long-standing rule in Kansas that when royalties are to be paid on the value of gas at the well, but no market exists there, the royalty owner must bear a proportional share of the reasonable expenses of transporting the gas to market. 257 Kan. at 322 (citing Molter v. Lewis, 156 Kan. 544, 134 P.2d 404 [1943]; Voshell v. Indian Territory Illuminating Oil Co., 137 Kan. 160, 19 P.2d 456 [1933]; Scott v. Steinberger, 113 Kan. 67, 213 P. 646 [1923]). Then, recognizing the operator’s general duty to prepare gas for market, the Stemberger court distinguished the transportation costs at issue from the compression costs required to make the gas marketable in Gilmore and Schup-bach, reasoning:
“[T]here is no evidence ... die gas produced ... was not marketable at the mouth of the well other than the lack of a purchaser at that location. There is no evidence [the operator] engaged in any activity designed to enhance the product, such as compression, processing, or dehydration. There is no evidence [the operator] attempted to deduct any expenses in making the gas marketable other dian those of constructing a pipeline to transport the gas to the purchaser or to a transmission pipeline.” 257 Kan. at 331.
The Stemberger court further explained:
“We are also directed to Garman v. Conoco, Inc., 886 P.2d 652 (Colo. 1994) [En Banc], That case involves a certified federal question. In it, the Colorado Supreme Court held as we believe the law in Kansas to be: Once a marketable product is obtained, reasonable costs incurred to transport or enhance the value of the marketable gas may be charged against nonworldng interest owners. . . . Absent a contract providing to the contrary, a nonworldng interest owner is not obligated to bear any share of production expense, such as compressing, transporting, and processing, undertaken to transform gas into a marketable product. In the case before us, the gas is marketable at the well.” 257 Kan. at 331.
Notably absent from these cases is any discussion of a precise quality or condition at which gas becomes “marketable,” despite their conclusive declarations about whether the gas at issue was marketable at the well. What it means to be “marketable” remains an open question. But the answer is not simply, as Fawcett would have us hold, interstate pipeline quality standards or downstream index prices.
The common thread in Gilmore and Schupbach is that the compression expenses were necessary to deliver the gas production, on the leased premises, to the purchaser. See Schupbach, 193 Kan. at 404; Gilmore, 192 Kan. at 392. The transportation expenses in Stemberger were also required to deliver the gas to tire purchaser, yet they were not similarly treated because royalties in that case were based on the market value of the gas at the well, and the operators had done nothing to prepare the wellhead gas for sale other than move it from the place where its value was to be determined (the well) to the purchaser. See Sternberger, 257 Kan. at 331.
We believe these cases taken together demonstrate that when gas is sold at the well it has been marketed; and when the operator is required to pay royalty on its proceeds from such sales, the operator may not deduct any pre-sale expenses required to make the gas acceptable to tire third-party purchaser. See Coulter v. Anadarko Petroleum Corp., 296 Kan. 336, 362, 292 P.3d 289 (2013) (“The lessee . . . must bear the entire expense of producing the gas at the wellhead pursuant to the terms of the oil and gas lease. Additionally, the lessee must also bear the entire cost of putting the gas in condition to be sold pursuant to the court-made ‘marketable condition rule.’ ”); accord Wellman v. Energy Resources, Inc., 210 W. Va. 200, 211, 557 S.E.2d 254 (2001) (holding lease requiring royalty based on proceeds requires lessee to bear all costs to explore for, produce, market, and transport product to point of sale). But post-sale, post-production expenses to fractionate raw natural gas into its various valuable components or transform it into interstate pipeline quality gas are different than expenses of drilling and equipping the well or delivering the gas to the purchaser.
We recognize the Colorado Supreme Court held, based on the operator’s duty to market, that an operator can be solely responsible for post-production, post-sale processing expenses when the lease requires royalties to be calculated on the operator’s proceeds from the sale of gas at the well. See Rogers v. Westerman Farm Co., 29 P.3d 887, 891 n.1, 912-13 (Colo. 2001). In reaching that conclusion, the Rogers court determined the “at the well” language did not establish the geographical point of valuation for calculating royalty payments and the leases were therefore silent with respect to the allocation of post-production transportation and processing expenses. See 29 P.3d at 896-97. It held “marketable condition” ' established the point prior to which all transportation and processing costs are taxable to the operator, but after which such expenses may be shared with the lessors. See 29 P.3d at 906. When Rogers is viewed through the lens of the lease language at issue in this case, the sale of gas does not yield “proceeds” unless at the time of sale the gas is “in the physical condition such that it is acceptable to be bought and sold in a commercial marketplace, and in the location of a commercial marketplace, such that it is commercially saleable in the oil and gas marketplace.” 29 P.3d at 906.
To the extent Rogers concerns the royalty due on gas sold at the well under a proceeds lease, it is at odds with our Kansas caselaw interpreting such provisions, as well as our caselaw giving effect to the “at the well” language. See Hockett, 292 Kan. at 223 (“[T]he term proceeds’ in a royalty clause refers to the gross sale price in the contract between the first purchaser and the [operator].”); Sternberger, 257 Kan. at 324 (“[Kansas cases] clearly show that where royalties are based on market price ‘at the well,’ . . . the lessor must bear a proportionate share of the expenses in transporting the gas or oil to a distant market.”). We decline to follow Rogers based on our prior caselaw.
We hold that when a lease provides for royalties based on a share of proceeds from the sale of gas at the well, and the gas is sold at the well, the operator’s duty to bear the expense of making the gas marketable does not, as a matter of law, extend beyond that geographical point to post-sale expenses. In other words, the duty to make gas marketable is satisfied when the operator delivers the gas to tire purchaser in a condition acceptable to the purchaser in a good faith transaction. See Waechter, 217 Kan. 489, Syl. ¶ 2. OPIK satisfied its duty to market the gas when the gas was sold at the wellhead. When calculating Fawcett’s royalty, the post-production, post-sale processing expenses deducted by the third-party purchasers are shared.
We are sensitive to the potential for claims of mischief given an operator s unilateral control over production and marketing decisions. But we believe royalty owners’ interests are adequately protected by the operator’s implied covenant of good faith and fair dealing and the implied duty to market. The latter demands that operators market the gas on reasonable terms as determined by what an experienced operator of ordinary prudence, having due regard for the interests of both the lessor and lessee, would do under the same or similar circumstances. See Smith, 272 Kan. at 85; Robbins, 246 Kan. at 131. In this case, Fawcett does not challenge OPIK’s good faith, its prudence in entering into the purchase agreements at issue, or their material terms. Accordingly, we need not dwell further on what this might entail.
The judgment of the Court of Appeals is reversed as to the issue subject to our review. The judgment of the district court is reversed on the issue subject to our review, and the case is remanded to the district court. | [
-16,
-22,
-7,
46,
-100,
96,
42,
-102,
65,
-29,
-75,
83,
109,
-56,
-123,
57,
-29,
25,
117,
106,
22,
-77,
3,
-47,
-60,
-77,
-71,
-51,
-71,
93,
-28,
87,
76,
32,
-54,
85,
-26,
-62,
65,
92,
-114,
36,
-103,
97,
-55,
0,
48,
107,
18,
73,
113,
-121,
115,
44,
24,
-61,
77,
14,
-1,
105,
-55,
-16,
-86,
-113,
95,
16,
16,
38,
-112,
-57,
-40,
14,
-102,
56,
41,
-24,
115,
36,
70,
116,
47,
-103,
-83,
-86,
99,
-79,
21,
-17,
60,
56,
15,
-33,
-115,
-25,
-46,
88,
99,
42,
-98,
28,
126,
6,
-57,
126,
-6,
5,
95,
-3,
23,
-98,
-106,
-127,
15,
119,
-100,
69,
-21,
-121,
-128,
97,
-55,
-94,
92,
71,
124,
-105,
7,
-66
] |
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.
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 | [
-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
] |
The opinion of the court was delivered by
LUCKERT, J.;
This appeal presents an issue of first impression: whether a child-support obligor, who became disabled and applied for social security disability insurance (SSDI) benefits for himself and his dependents, may be reimbursed or receive a credit for past child-support payments. The obligor in this case argues his children received duplicative payments, bodi of which satisfied his child-support obligations for the period between his application for and the approval of the SSDI derivative benefits: One payment came directly from the obligor as the child support became due and the second occurred when the Social Security Administration (SSA) paid the SSDI derivative benefits that had accumulated while his application was being processed. Both the district court and a divided Court of Appeals determined the disabled obligor was not entitled to a credit, a reimbursement, or an offset. In re Marriage of Stephenson & Papineau, 49 Kan. App. 2d 457, 308 P.3d 1270 (2013).
On review of the Court of Appeals decision, we reverse, holding that a district com! may—but does not necessarily have to—grant a credit to a child-support obligor who is current on child support when a lump-sum payment of accumulated SSDI derivative benefits duplicates the obligors support payment. A credit, if granted, may be used to offset other support obligations imposed by the court on the obligor. Alternatively, the district court might adjust an obligor s support obligations, require reimbursement of the du-plicative payments from funds that are discrete from SSDI benefits, or fashion some other equitable remedy permitted under applicable federal statutes and regulations. Because the district court in this case did not recognize the extent of its discretionary powers, we remand this case for further proceedings.
Facts and Procedural Background
The district court resolved the issue in this appeal based on the following stipulated facts. Gregory J. Papineau and Jeri D. Stephenson divorced in 2006. Through the divorce decree, the district court granted Stephenson primary residential custody of their minor children and ordered Papineau to pay monthly child support. At the time relevant to this appeal, Papineau s monthly obligation was $782, and he did not owe an arrearage. The stipulated facts provided no additional information about the financial obligations of either party.
In 2010, Papineau became disabled. He began receiving long-term disability benefits through a policy with Standard Insurance Company, which allowed him to timely pay his monthly $782 child-support obligation. During this time Papineau also applied for SSDI benefits, but the SSA did not approve his application and begin providing those benefits until March 2012. These benefits included ongoing derivative payments of $802 per month to Stephenson as the “representative payee” of Papineau’s dependent children. The SSA also made a $5,600 lump-sum payment to Stephenson for the children’s benefit; this payment retroactively covered derivative benefits that had accrued during the time between Papineau’s SSDI application and its approval.
Subsequently, Papineau filed a motion to modify his child-support obligation. He first asked the district court to relieve him of his personal obligation to make child-support payments, noting the monthly SSDI derivative payment to his dependent children fully and contemporaneously satisfied—and, in fact, exceeded—his monthly obligation. Second, he asked for an order requiring Stephenson to reimburse him for child support he had already paid in an amount equal to the lump-sum payment of accumulated SSDI derivative benefits. Papineau also asked the district court to consider the parties’ stipulated fact that Standard Insurance Company was claiming “subrogation to all benefits received by [Papi-neau] and the minor children, to include the amount of the retroactive payment received by [Stephenson] on behalf of the minor children.”
The district court granted Papineau’s first request, recognizing that in Andler v. Andler, 217 Kan. 538, Syl. ¶ 4, 538 P.2d 649 (1975), this court held a child-support obligor may receive credit for SSDI payments made for the benefit of the obligor’s minor children “to the extent of, but not exceeding” the obligor’s monthly child-support obligation that is contemporaneous with the monthly SSDI payment. But the district court denied Papineau’s second request for reimbursement of the child support he had paid during the pendency of his SSDI application. Citing In re Marriage of Hohmann, 47 Kan. App. 2d 117, 274 P.3d 27 (2012), rev. denied 297 Kan. 1245 (2013), the district court concluded Papineau’s payments must be considered a gift that inures to the benefit of the children and may not be recovered.
Papineau appealed, and a divided Court of Appeals panel affirmed. Stephenson & Papineau, 49 Kan. App. 2d 457. Judge Gor don Atcheson dissented, concluding that Papineau should be allowed an “accommodation” in the form of a “payment or payments from Stephenson to Papineau, a credit against other obligations Papineau has under the divorce decree benefiting his sons, a combination of payments and credits, or something else satisfactory to the parties and tire district court.” 49 Kan. App. 2d at 490 (Atche-son, J., dissenting).
Papineau filed a petition seeking review of the Court of Appeals decision, which we granted.
Analysis
We begin our review in die same position as the district court and Court of Appeals—that is, we exercise unlimited review, without deference to the district court or the Court of Appeals, because the issue was determined based on stipulated facts and die law that applied to those facts. See Rucker v. DeLay, 295 Kan. 826, 830, 289 P.3d 1166 (2012). Papineau’s appeal presents an issue of first impression, and we believe the best approach in this case is to follow the analytical path taken by the district court and Court of Appeals. Thus, we will analyze our decision in Andler, the Court of Appeals’ decision in Hohmann and other cases, decisions from other jurisdictions, and statutes and regulations governing SSDI benefits.
As we do so, we will compare and contrast the Court of Appeals majority and dissenting opinions in the instant case. While valid arguments can be made for both sides of the issue and are well-stated in the Court of Appeals’ split decision, upon our independent review of the authorities we conclude die dissenting opinion presents the more persuasive analysis and, with some modification, the appropriate outcome.
We begin our review with this court’s decision in Andler.
1. Andler
In Andler, the parties divorced just months after an automobile accident resulted in a father’s permanent disability. The district court ordered the father to pay child support to his former spouse, who was granted custody of the minor children. The court order did not mention the potential effect of SSDI benefits on the father’s obligation. Yet, just 1 month after the decree was filed, the children began receiving SSDI benefits as their father’s dependents; the SSDI payments exceeded the father’s court-ordered obligation. After the monthly dependent benefits began, the father made four child-support payments from his own funds. He then stopped making personal payments, which led the mother to file a motion to have the father held in contempt for violation of the court’s order. The mother argued, in part, that the father should not receive credit for the SSDI payments because the benefit came from an act of Congress, not tire father.
The Andler court rejected the mother’s argument. First, the court noted that SSDI benefits are not government gratuities. The Andler court reasoned: (1) SSDI benefits represent contributions a worker has made throughout the course of employment and the worker has a vested right in the payments, including derivative payments to dependent children, and (2) the underlying intent behind SSDI payments to a dependent child is to provide support that the disabled parent is unable to provide. Thus, in this sense, the benefits represent earnings in much the same way as would benefits paid by a private insurance company. Andler, 217 Kan. at 542-43; see 20 C.F.R. § 404.330 (2015) (indicating insured persons who suffer from a physical or mental disability and are no longer able to work are entitled to benefits from the SSA insurance program in the form of SSDI payments to themselves and their minor children); see also 42 U.S.C. § 415 (2012) (SSA benefit is directly related to the amount the insured has paid into the program).
Ultimately, the Andler court held that monthly SSDI benefits that derive from a child-support obligor’s SSA benefits and are paid to the obligor’s children satisfy ongoing child-support obligations because the source and purpose of the payments are the same— both child-support payments and SSDI benefits come from the income or assets of the obligor and provide for the needs of the minor children. 217 Kan. at 542-43; Kansas Child Support Guidelines § II.A. (2014 Kan. Ct. R. Annot. 127) (Guidelines) (“The purpose of child support is to provide for the needs of the child.”); see In re Marriage of Henry, 156 Ill. 2d 541, 550-51, 622 N.E.2d 803 (1993) (“[T]he source and the purpose of social security dependent benefits are identical to the source and purpose of child support—both come from a noncustodial parent’s wages or assets and both provide for the needs of the dependent child.”).
Andler s first holding thus supports Papineau’s request to be relieved of personally making future monthly child-support payments, and neither party takes issue with this part of the district court’s ruling. Andler also endorses Papineau’s point that he “provided” both the child-support payments and the lump-sum payment of accumulated SSDI derivative benefits, which were benefits he earned by contributing social security taxes. See Andler, 217 Kan. at 542-43.
In its second holding, the Andler court held the father could not be credited widr the amount by which the monthly SSDI benefit exceeded diat month’s child-support obligation. Even though the excess amount was “not a gratuity in the sense that it represents the children’s vested right under the insurance concept of the Social Security system, it nevertheless is a gratuity under the divorce decree to the extent it exceeds the amount ordered in the divorce decree.” 217 Kan. at 544. Consistent with this holding, Papineau does not seek a credit for the amount by which the monthly SSDI benefit exceeds his court-ordered monthly child-support obligation each month.
Papineau does, however, seek reimbursement of the payments he made that essentially duplicate the payments covered by the retroactive SSDI payment of accumulated benefits. Andler is of some relevance because the disabled obligor in that case had also made duplicative payments—he had continued to personally pay child support for 4 months after tire dependent SSDI monthly payments began. The Andler court briefly mentioned this issue, indicating the duplicative payments must be regarded as “gratuities” that did not prevent crediting the SSDI benefits toward the child support in those same months. 217 Kan. at 545.
In this appeal, the Court of Appeals majority interpreted this second Andler holding regarding gratuitous duplicative payments as standing for “the general rule that any excess Social Security disability payment beyond the minimum child support obligation is considered a gratuity that inures solely to the benefit of the child.” Stephenson & Papineau, 49 Kan. App. 2d at 466. Consequently, the majority held Papineau had no right to a reimbursement or an offset. 49 Kan. App. 2d at 466.
Yet Andler, though relevant, presented a very different situation from this case. Harold Andler did not have an obligation to make an additional child-support payment each month beyond the SSDI payment because the SSDI payment fulfilled his obligation in the same month the child-support obligation became due. The SSDI payment satisfied the court’s child support order, meaning Andler’s personal child-support payments were duplicative at the time he made them—and thus these additional child-support payments were truly gratuitous. See Black’s Law Dictionary 816 (10th ed. 2014) (defining “gratuitous” as “1. Done or performed without obligation to do so; given without consideration in circumstances that do not otherwise impose a duty.... 2. Done unnecessarily.”).
In contrast, Papineau had a court-ordered obligation to make the payments for which he seeks reimbursement; it is the retroactive application of SSDI payments that made them duplicative. If he had not made the payments while his SSDI application was being processed, his children would not have received any support and he would potentially have been in contempt of court. Court-ordered payments do not equate with the commonly understood definition of “gratuity”—they result from a legally imposed obligation. This difference in circumstances creates a significant distinction between this case and that portion of the Andler decision regarding duplicative payments.
Significantly, neither Andler nor any other decision of this court directly or indirectly answers the question raised in this appeal or, more generally, discusses the effect of a lump-sum payment of accumulated SSDI derivative benefits on an obligor’s child-support obligation. Several Court of Appeals decisions have addressed these issues, however, and, while these opinions do not bind us they may be considered as persuasive authority. See State v. Quested, 302 Kan. 262, 269-70, 352 P.3d 553 (2015). We, therefore, next examine those opinions.
2. Previous Court of Appeals Opinions
In tlie earliest Court of Appeals decision considered by the panel below in this case, In re Marriage of Williams, 21 Kan. App. 2d 453, 900 P.2d 860 (1995), a father sought to apply the amount by which the monthly SSDI derivative payment to his children exceeded his monthly court-ordered obligation—i.e., tire excess tire Andler court had labeled a “gratuity”—to his child-support arrear-ages. Citing Andler, the Court of Appeals reasoned that the excess monthly benefit, a “windfall,” should inure to tire benefit of the children, not the father, and it refused to reduce the arrearage by the amount of the excess. 21 Kan. App. 2d at 454-56. This holding reinforced Andler s restriction of any credit for SSDI benefits to the specific month the benefit covered. Papineau seeks a credit that is consistent with this holding and tire corresponding holding in Andler.
The restriction correlating a monthly child-support obligation with the benefit for the same month was emphasized again in the next case considered by the Court of Appeals, Hohmann, 47 Kan. App. 2d 117. In that appeal, a different Court of Appeals panel considered whether a retroactive lump-sum payment of accumulated SSDI derivative benefits paid to the nonobligor, as a representative payee for the dependent children, could be applied to a child-support arrearage. Broadly noting that a majority of other states allowed a credit against an arrearage for a lump-sum benefit, the Hohmann panel held a disabled father “may” receive a credit toward any “child support arrearage that accumulated during the months covered by the lump-sum payment.” 47 Kan. App. 2d at 121. However, “[i]f the payment is in excess of the arrearage [accumulated during the months covered by the lump-sum payment], the excess benefit accrues to the child as a gift and may not be credited to any arrearage that accumulated prior to the months covered by the lump-sum payment.” 47 Kan. App. 2d at 121. The Hohmann court thus affirmed the district court’s decision to credit the SSDI lump-sum payment of accumulated benefits against the obligor’s past due support. Hohmann, 47 Kan. App. 2d at 121. But the Hohmann panel did not elaborate on whether its holding that the accumulated benefits “may” be credited meant a district court had discretion to either allow or deny the credit.
Then, in In re Marriage of Taber, 47 Kan. App. 2d 841, 280 P.3d 234 (2012), rev. denied 298 Kan. 1202 (2013), a Court of Appeals panel was asked to reexamine the holdings in Hohmann. The Taber panel consisted of the same judge who authored Hohmann (and who ultimately authored Taber) and two other judges who had not decided Hohmann. As in Hohmann, a disabled obligor failed to pay his monthly child-support obligation while his application for SSDI benefits was being processed. When benefits were approved, the obligor sought a credit against the arrearage in the amount of the lump-sum accumulated payment made for the benefit of his children.
The Taber panel reaffirmed the holding in Hohmann, again stating that the lump-sum payment of accumulated derivative benefits “may be credited toward Father’s child support arrearage that accumulated during the months covered by the lump-sum payments.” 47 Kan. App. 2d 841, Syl. ¶ 1. But without discussion as to whether “may” meant the district court had discretion to award or deny the credit, the panel reversed the district court’s ruling that no credit should be given, remanded the case, and directed the district court to give a credit toward the obligor’s “child support arrearages for those months in an amount equal to the amount of [the dependent child’s] SSDI payment in each specific month.” 47 Kan. App. 2d at 846. Tellingly, die panel did not remand for the district court to consider all the circumstances and exercise its discretion to determine whether a credit should be allowed. It seems the panel intended its statement that the amount “may” be credited to mean it “must” be credited, an interpretation that has implications for the way the Court of Appeals majority viewed Papi-neau’s claim.
Hohmann and Taber each addressed at least one of the two contentions at play in the instant appeal. We next consider each in turn.
2.a. Gratuity or Not
First, the Hohmann panel briefly addressed the argument that a “logical extension” of crediting a lump-sum SSDI payment against child-support arrears would be a requirement that the non-obligor repay any timely-made child support obligations that were later duplicated by a lump-sum SSDI derivative benefit. The Hoh-mann panel correctly pointed out that question was not at issue in its case. Nevertheless, it also “note[d] that the majority of courts who have decided this issue have found that the nonobligor parent is not required to return such ‘overpayments’ to the obligor parent. Most courts view it as a voluntary overpayment that inures solely to the benefit of the child.” 47 Kan. App. 2d at 121 (citing Child Support Enforcement Agency v. Doe, 92 Hawai’i 276, 285-86, 990 P.2d 1158 [Hawai’i App. 1999]; Brown v. Brown, 849 N.E.2d 610, 616 [Ind. 2006]; Newman v. Newman, 451 N.W.2d 843, 844 [Iowa 1990]; Holmberg v. Holmberg, 578 N.W.2d 817, 827 [Minn. App. 1998], aff'd 588 N.W.2d 720 [Minn. 1999]; Keith v. Purvis, 982 So. 2d 1033, 1038-39 [Miss. App. 2008]; Steel v. Hartwick, 209 W. Va. 706, 708-09, 551 S.E.2d 42 [2001]).
The Taber panel, in discussing the same question, cited the same out-of-state cases and then added: “Our Supreme Court has addressed this issue in Andler.” 47 Kan. App. 2d at 846.
But, in relying on Andler, tire Taber panel failed to discuss the distinction we have already made between the situation in Andler (where the contemporaneous SSDI benefits fulfilled tire child support obligation and the disabled parent had no additional obligation to malee a payment) and a situation such as Papineau’s (where he had a court-ordered duty to make a timely monthly payment before SSDI benefits began). This distinction is important because, in Papineau’s case, there was a point in time when there would be no child-support payment if he failed to pay, there was no guarantee his SSDI application would be granted, and there remained a possibility that dependent benefits, including the lump-sum accumulation, would not be approved or paid. By failing to recognize this distinction, the Taber panel did not merely apply Andler but instead expanded its scope.
Nevertheless, as both panels noted, there is some out-of-state support for treating the payment as a gratuity. In general, we do not find this caselaw persuasive under the circumstances of this case, where Papineau’s child-support payments were obligatory at the time they were made. Some courts avoid any problem posed by the obligatory nature of the child-support payments by reasoning that they are gratuitous because the obligor failed to seek a modification of the court order. E.g., Brown, 849 N.E.2d at 615 (endorsing the requirement that an obligor petition for modification and also alert the court to a pending application for benefits, following which the court could defer its ruling on the petition); Newman, 451 N.W.2d at 845 (similar). The Court of Appeals majority in this case similarly relied on what it deemed to be Papi-neau’s failure to seek a modification of his child-support obligations when he became disabled. See In re Marriage of Stephenson & Papineau, 49 Kan. App. 2d 457, 466, 308 P.3d 1270 (2013).
Regardless of the approach in other states, the majority’s holding in Stephenson creates an inequity in Kansas between obligors who meet their child-support obligations while awaiting an SSA determination and those who do not: the Court of Appeals allowed the nonpaying obligors in Hohmann and Taber to credit their arrear-ages without limiting the credit to payments that became due after a motion to modify had been filed. Yet in this case tire Court of Appeals majority would impose those requirements on the obligor who makes payments.
In addition to noting this inconsistent treatment, we observe that the Court of Appeals majority’s factual premise that Papineau did not file a motion to modify when he became disabled or applied for SSDI benefits draws a conclusion not supported by the stipulated facts, which do not mention whether a motion had been filed.
Moreover, as Papineau argues, a motion filed at that time would likely have been dismissed because he would have been unable to sustain his burden of showing a material change in circumstances as necessary to pursue a modification of support. See Guidelines § V.A. (2014 Kan. Ct. R. Annot. 147) (“Courts have continuing jurisdiction to modify child-support orders to advance the welfare of the child when there is a material change of circumstances.”). Under Kansas’ Guidelines, “[i]n addition to changes of circumstance which have traditionally been considered by courts,” the Guidelines specify other situations that constitute a material change of circumstances. Guidelines § V.B. (2014 Kan. Ct. R. Annot. 147-48). These exceptions do not apply under the facts of this case, as least as set out in the stipulated facts. The broadest provision applies to a “[cjhange of financial circumstances of the parents or the guidelines” but only if the changed circumstances result in a 10% change in the child-support obligation indicated by the Guidelines. Guidelines § V.B.l. (2014 Kan. Ct. R. Annot. 148); see also Guidelines § V.B.3. (defining material change as child having passed his or her 6th or 12th birthday, which places child in a higher age group in the guidelines); Guidelines § V.B.4. (defining material change as child becoming emancipated under a court order).
Here, Papineau experienced a drastic change of circumstances when he became disabled and not able to work, but his private disability insurance essentially replaced his wages, maintaining his income at or near the level it had been when the child-support order had been entered and providing him with the resources to pay his child-support obligation. See Guidelines § II.D. (2014 Kan. Ct. R. Annot. 128) (“The Domestic Gross Income for the wage earner is income from all sources.”). Hence, nothing in the stipulated facts suggests a material change in circumstances that would result in a 10% change in the child support obligation. See 67A C.J.S., Parent and Child § 247 (generally discussing other court-recognized factors that may constitute a material change of circumstances, which generally encompass a change in the needs of the child, a change in the parent’s financial ability to provide for those needs, or a change in expenses).
In sum, even if Papineau failed to file a motion to modify his support obligation at the time he became disabled, that failure does not justify treating his court-ordered child-support obligation as a gratuity.
2.b. Creating a Disincentive
This brings us to an argument raised by Papineau that was addressed by the Taber panel. Specifically, Papineau argues that crediting lump-sum SSDI benefits against support arrearages creates a disincentive for an SSDI applicant to timely pay child support. While not explicitly recognizing a “disincentive,” the Taber panel seemed to implicitly acknowledge its existence but dismissed its import because of the overriding obligation to comply with a court order, noting that the failure to make the payments can result in contempt proceedings, “income withholding orders [, and] threats of incarceration .... [A]ny failure to pay child support is at the obligor parent’s own risk and subjects him or her to the court’s broad powers to punish for contempt.” Taber, 47 Kan. App. 2d at 843.
Other courts have been more troubled by a rule where, practically speaking, an obligor has a disincentive to pay child support while awaiting an SSA decision on his or her SSDI benefits. For example, in Paulhe v. Riley, 295 Wis. 2d 541, 553, 722 N.W.2d 155 (Wis. App. 2006), the Wisconsin Court of Appeals considered the impact of a state statute that allowed a court to credit lump-sum payments of accumulated SSDI derivative benefits against a child-support arrearage. The obligor in Paulhe had made timely support payments and owed no arrearage but sought the same treatment— a credit—as the statute afforded to an obligor with an arrearage. The nonobligor argued the credit could not be allowed because the legislature had limited the availability of a credit to situations where an arrearage existed. The Wisconsin Court of Appeals rejected the nonobligor’s argument.
First, the Wisconsin court recognized the reality that allowing a credit only if there was an arrearage created an economic incentive to allow an arrearage to accumulate. This meant that interpreting the statute to exclude other circumstances would be “clearly contrary to the public policy underpinning child support,” which is to encourage timely support payments. 295 Wis. 2d at 553.
In addition, the Paulhe court explained, such an interpretation would create a disparity. Specifically, if an obligor who does not pay child support while awaiting approval of his or her SSDI application is allowed a credit against an arrearage, the obligor s children eventually benefit from only the lump-sum accumulated benefit and the obligor pays nothing out of pocket. In contrast, if an obligor who makes timely payments is not allowed any accommodation for the lump-sum payment, the obligor s children receive both the SSDI lump sum and the child support and the obligor is worse off than the parent who did not meet his or her court-ordered obligation. Given diis “incongruity,” the Wisconsin court concluded an equal protection violation would arise if the statute was interpreted to prohibit a credit when no arrearage had accumulated: “In its simplest terms, equal protection requires that those who are similarly situated must be similarly treated.” 295 Wis. 2d at 553-54.
Papineau does not make an equal protection argument. But he does assert that the Court of Appeals has created inconsistency in the treatment of disabled obligors because, under its interpretation, Hohmann and Taber would allow the delinquent obligor a credit but not allow a credit to those obligors who timely fulfilled their court-ordered obligations. He argues we should adopt a more equitable approach and one that does not create a disincentive to timely pay.
3. Papineau Court of Appeals’ Treatment of These Issues
Judge Atcheson essentially agreed with Papineau’s arguments on this point, concluding that treating the duplicative payments as an unrecoverable gratuity resulted in a disincentive to make timely payments. Stephenson It Papineau, 49 Kan. App. 2d at 472-73, 481 (Atcheson, J., dissenting). In addition, he observed that the majority’s holding treated Papineau’s children (who effectively received the benefit of two payments) more favorably than the children who only received one payment in Taber, 47 Kan. App. 2d 841, and In re Marriage of Hohmann, 47 Kan. App. 2d 117, 274 P.3d 27 (2012), rev. denied 297 Kan. 1245 (2013), and penalized Papineau (who made out-of-pocket payments) as compared to the obligors in Hoh-mann and Taber (who did not make out-of-pocket payments). Judge Atcheson argued this disparate treatment is inconsistent with Andler v. Andler, 217 Kan. 538, 538 P.2d 649 (1975), Taber, and Hohmann because “[tjhe logical extension of those cases would apply the same rule and reach the same outcome: The children should receive the greater of the disability benefits or the child support payments for the 7 months Papineau s application lingered with the Social Security Administration awaiting a determination.” Stephenson & Papineau, 49 Kan. App. 2d at 472 (Atcheson, J., dissenting). Judge Atcheson suggested that “[sjuch a pronounced inconsistency ought to require a compelling rationale. Here ... no such justification turns up.” 49 Kan. App. 2d at 473 (Atcheson, J., dissenting).
Judge Atcheson makes several valid points. Certainly the Court of Appeals approach creates a disincentive to timely pay support. This disincentive should not and does not excuse an obligor from his or her legal and moral obligations to pay child support. Nevertheless, since the fundamental purpose of child support is to timely provide for the ongoing needs of a child, the law should not discourage an obligor from making continuous and timely payments. Guidelines § II.A. (2014 Kan. Ct. R. Annot. 127); see In re Marriage of Williams, 21 Kan. App. 2d 453, 456, 900 P.2d 860 (1995) (“[T]he legislature has established the policy of recognizing the importance of timely monthly support payments.”). And the combination of Court of Appeals decisions results in disparate treatment of obligors who receive lump-sum SSDI awards and of their dependents. Consequently, we agree with Judge Atcheson’s assessment that there should be a compelling justification for the position.
For its part, the Court of Appeals majority acknowledged Papi-neau s disincentive argument but turned to the dicta in Taber and Hohmann regarding the hypothetical argument about repayment of the duplicative support as “persuasive authority for the proposition that an obligor parent is not entitled to reimbursement for timely child support payments made during months for which the minor children ultimately receive a retroactive lump-sum payment of the obligor parent’s Social Security disability benefits.” Stephenson & Papineau, 49 Kan. App. 2d at 463. The Court of Appeals majority also: (1) cited Papineau’s failure to file a motion for mod ification when he became disabled or when he applied for SSDI benefits; (2) relied on authority from other states for treating du-plicative payments as a gratuity that inures solely to the benefit of the children; and (3) criticized Papineau’s position because it essentially requires viewing “his child support obligation as something akin to an account ledger that can and should be reconciled at the end of the fiscal term.” 49 Kan. App. 2d at 466. The Courts of Appeals argued the situation should be viewed as if Papineau and Stephenson remained married, in which case the family “would have done its best to use its resources, including the disability benefits paid by Standard, to meet the children’s needs. In that situation, Papineau would not be entitled to reimbursement.” 49 Kan. App. 2d at 466.
We next examine these three points.
4. The Court of Appeals Majority’s Rationale
4.a. Failure to File a Motion to Modify
We have already discussed the first of these points—Papineau’s failure to file a motion to modify as soon as he applied for disability benefits. As we have pointed out, this point is not persuasive as it adds to the inequitable treatment of different obligors and in Pap-ineau’s situation would not, arguably, have been appropriate under our Child Support Guidelines.
4.b. Other Decisions Relied Upon by Papineau Majority
Like Kansas, a majority of jurisdictions allow SSDI payments made to dependent children to be credited against child-support obligations. See Annot., 34 A.L.R.5th 447, II.A. But courts in these jurisdictions deal with the practical application of that rule in various ways, and there are very few decisions touching on the specific problem of how to treat lump-sum accumulated benefits when there is no arrearage in child-support payments—in other words, where there are obligors, like Papineau, who have kept up with child-support payments while awaiting an SSDI benefits decision. From those few decisions, the majority found support in the Mississippi Court of Appeals decision in Keith, 982 So. 2d 1033, and the West Virginia Supreme Court decision in Steel, 209 W. Va. 706. While generally supporting the majority position, distinctions in Mississippi and West Virginia law undercut the majority’s reb-anee on these cases.
In Keith, like here, an obligor was not in arrears when his daughter received a lump-sum payment of accumulated SSDI benefits followed by prospective monthly SSDI benefits. The Mississippi court held the father was not entitled to be reimbursed for the support he paid while his SSDI application was processed. Keith, 982 So. 2d at 1038-39. While that holding supports the Court of Appeals’ view, a critical point distinguishes Mississippi and Kansas law: In Mississippi, an obligor parent is only entitled to credit SSDI payments against child-support obligations “for the period in which [the child] actually received [or receives]” the payments, “commencing with . . . receipt of the lump sum payment.” (Emphasis added.) 982 So. 2d at 1038. In other words, unlike a Kansas obligor benefitting from Taber and Hohmann, a Mississippi obligor cannot receive a credit even against arrears accumulated during the period covered by the lump-sum SSDI payment. See Chapman v. Ward, 3 So. 3d 790, 795-96 (Miss. App. 2008) (“Precedent does not allow the noncustodial parent to receive credit for arrearages, only credit for the current support due.”); see also In re Marriage of Taber, 47 Kan. App. 2d 841, 846, 280 P.3d 234 (2012), rev. denied 298 Kan. at 202 (2013); Hohmann, 47 Kan. App. 2d at 121.
Papineau’s argument, which echoes the arguments considered in Taber about a disincentive to make timely payments, underscores the significance of this distinction. The Mississippi court did not create a disincentive to timely pay because Mississippi law does not provide any incentive for an obligor parent not to pay; even if a lump-sum SSDI accumulated-benefit payment is received, consistently paying child support is the only way to satisfy child-support obligations in Mississippi. While consistency could be achieved through a similar rule in Kansas, that rule would be contrary to Taber s and Hohmann s allowance of a credit against an arrearage in the amount of the SSDI lump-sum payment accruing in the months during which the SSDI benefit accumulated.
In Steel, the second case relied upon by the Court of Appeals majority, an obligor remained current on his child-support obli gations while his Social Security disability claim was pending and then sought reimbursement. In denying his request, tire West Virginia Supreme Court looked to a prior case, Farley v. Farley, 186 W. Va. 263, 412 S.E.2d 261 (1991), which held that a district court could credit a lump-sum SSDI payment made on behalf of a dependent child against arrears if
“(1) the debtor spouse has acted in good faith and has promptly sought court approval of the credit of social security against child support; (2) in the discretion of the trial court, there were no other assets reasonably available from which child support payments could have been paid; and (3) there were no other changes in circumstances that, in their totality, militate against awarding credit.” 186 W. Va. at 267.
Because tírese factors mean that awarding a credit against an ar-rearage is discretionaiy, the Steel court did not view Farley as mandating reimbursement when there were no arrears against which to credit a lump sum and saw no reason, in the exercise of discretion, to order reimbursement under the facts before it. Steel, 209 W. Va. at 708-09.
West Virginia is not alone in its discretionary approach to the treatment of SSDI benefits. See, e.g., Matter of Estate of Patterson, 167 Ariz. 168, 172-74, 805 P.2d 401 (Ariz. App. 1991) (recognizing that equitable principles may entitle an obligor to credit disability payments against child-support obligations); Fowler v. Fowler, 156 Conn. 569, 574, 244 A.2d 375 (1968) (holding SSDI payments can be credited against arrearage, but district court did not abuse its discretion in denying credit under the facts of the case); Dept. of Public Aid ex rel. McNichols v. McNichols, 243 Ill. App. 3d 119, 122-23, 611 N.E.2d 593 (1993) (“The decision to grant or deny respondent’s request [for a setoff of social security benefits against a child-support arrearage] lies within the sound discretion of the trial judge.”); Drummond v. State to Use of Drummond, 350 Md. 502, 505, 521-22, 714 A.2d 163 (Md. App. 1998) (credit of SSDI payments towards child-support obligation is not automatic, district court did not abuse its discretion in denying credit); Johnson v. Johnson, 290 Neb. 838, 853, 862 N.W.2d 740 (2015) (under equities of the case the district court did not err in declining to credit SSDI payments against child-support obligations); In re State and Estate of Crabtree, 155 N.H. 565, 572, 926 A.2d 825 (2007) (“the trial court has the discretion to allow credit toward a child support arrearage based upon dependency benefits received by die obligor's children”); Corn., Dept. of Social Servs., Div. of Child Support Enforcement v. Skeens, 18 Va. App. 154, 156, 442 S.E.2d 432 (1994) (“whether the trial court credits the payment against an arrearage for court-ordered support depends upon the circumstances of each case and rests in the sound discretion of the trial judge”). Still other courts recognize a rebuttable presumption that SSDI payments will be credited against child-support obligations. See, e.g., Mackalica v. Mackalica, 716 A.2d 653, 656-57 (Pa. Super. 1998).
The Hohmann and Taber panels did not discuss the role, if any, of a district court’s discretion to weigh the equities of granting an obligor a credit if the obligor lacked the ability to timely pay child support but not granting the credit if the obligor had the ability to pay support but decided not to malee the payments so that he or she could take economic advantage of the credit against the ar-rearage when the lump-sum payment was received. While the question of a credit in light of an arrearage is not before us, we nevertheless note that those courts recognizing a judge’s discretion to apply a lump-sum payment to a child-support arrearage do not create the disincentive to not timely pay; in fact, equity would suggest that the obligor who has made a diligent effort to pay as much as possible toward the obligation (and who stands before the court with what equity recognizes as clean hands) is likely to receive the more favorable treatment—i.e., a credit. In other words, Mississippi, through Keith v. Purvis, 982 So. 2d 1033 (Miss. App. 2008)—where no credit is received regardless of whether the obligor’s hands are clean—and West Virginia, through Steel v. Hartwick, 209 W. Va. 706, 551 S.E.2d 42 (2001)—where a court could consider whether the obligor’s hands were clean or unclean—created a consistent approach to the handling of lump-sum payments.
In contrast, equity plays no role under the Court of Appeals decisions. Given Taber’s implicit holding that a district court judge must allow a credit against an arrearage, a Kansas obligor receives a credit even if he or she had the ability to malee the child-support payments and therefore stands before the court with unclean hands. Yet, under the Court of Appeals majority’s holding in this case, an obligor who complies with a court order and has clean hands does not receive a credit. We find it hard to equitably justify this inconsistency.
Because of these distinctions, we do not find the Court of Appeals majority’s reliance on these authorities to be persuasive or to justify creating a disincentive or disparate treatment.
4.c. Majority’s Rejection of an Accounting Approach
The Court of Appeals majority was also critical of an approach that solely focused on the treatment of the child-support obligor. As the majority aptly noted, a parent’s moral and legal obligation to support his or her children should not be viewed “as something akin to an account ledger that can and should be reconciled at the end of the fiscal term.” In re Marriage of Stephenson & Papineau, 49 Kan. App. 2d 457, 466, 308 P.3d 1270 (2013). Indeed, the focus is on the best interests of the children and meeting their needs. See Guidelines § I. (2014 Kan. Ct. R. Annot. 127) (district court can make adjustments to the child-support calculations if relevant evidence establishes “it is in the best interest of the child.”); Guidelines § IV.E.6. (2014 Kan. Ct. R. Annot. 145) (“The financial situation of the parties may be reason to deviate from die calculated Basic Parental Child Support Obligation if die deviation is in the best interest of the child. . . . One example might be if either party has more than one job, the circumstances requiring the additional employment should be considered.”).
But the Guidelines are also designed to fairly and equitably balance the financial burden of both parents by examining tiieir relative incomes and obligations and looking at the financial picture of the entire family. Certainly, creating a disincentive to pay child support in a timely fashion does not accomplish that goal. A disincentive may result in an obligor not making timely payments, which could unfairly and unduly burden the nonobligor.
Furthermore, as previously noted, the Court of Appeals decisions in this case, Taber, and Hohmann, when construed together, create inequities in the treatment of obligors and in the benefits received by dependent children. These inequities may become exacerbated if Papineau must reimburse Standard Insurance Company, which according to the parties’ stipulated facts is seeking subrogation of all retroactive benefits received from the Social Security Administration, including the amount received by his minor children. While Papineau asks us to determine the merits of this subrogation claim, he concedes that Standard is not a party in this action. And all three judges on the Court of Appeals panel in this case agreed that the record was not adequate for a reviewing court to consider this issue. Stephenson & Papineau, 49 Kan. App. 2d at 467, 477 n.1. We reach the same conclusion.
Nevertheless, the possibility that Papineau might have to repay the portion of his disability insurance payments from Standard that duplicate the lump-sum payment of accumulated SSDI benefits, including the benefits paid to Stephenson as the representative payee for the dependent children’s lump-sum accumulated benefit, points out the -type of issue that might cause economic instability to the family as a whole. The abbreviated facts presented on appeal do not provide us with the information necessary to consider the potential ramifications. By way of example, however, if Papi-neau becomes obligated to reimburse Standard for the lump-sum dependent benefits, he might not have the ability to pay future obligations he might owe under the court’s order—such as payment of uninsured medical or dental expenses of the children. The all-or-nothing approach adopted by the Court of Appeals in Taber (allowing all reimbursement in the case of an arrearage) and the nothing approach adopted by the majority in this case (no credit if no arrearage) leaves no room for considering such matters or the family’s entire financial situation.
Papineau’s cure for this inequity would be to allow him to be reimbursed in the amount of the lump-sum payment of accumulated SSDI derivative benefits—to, in effect, be put in the same position as the obligors in Taber and Hohmann. But there are difficulties with this position as well, including constraints imposed by federal statute.
5. Caselaw Regarding Repayment and 42 U.S.C. § 407(a) (2012)
As noted in Taber and Hohmann, most courts have stopped short of ordering a nonobligor to remit any overpayments that result from a lump-sum payment. Taber, 47 Kan. App. 2d at 846; Hohmann, 47 Kan. App. 2d at 121. These courts typically take one of two views. As we have already discussed, some conclude that any excess payment will equitably be deemed to be a gratuity to the child so the custodial parent is not obligated to refund to the ob-ligor any overpayment. See, e.g., Child Support Enforcement Agency v. Doe, 92 Hawai'i 276, 285-86, 990 P.2d 1158 (Haw. App. 1999); Brown v. Brown, 849 N.E.2d 610, 616 (Ind. 2006); Newman v. Newman, 451 N.W.2d 843, 844 (Iowa 1990); Holmberg v. Holmberg, 578 N.W.2d 817, 827 (Minn. App. 1998), aff'd 588 N.W.2d 720 (Minn. 1999). But as we previously noted, to deem a court-ordered payment a “gratuity” seems inconsistent with the common definition of the word.
Other courts, such as the Mississippi Court of Appeals in Keith, 982 So. 2d 1033, and the West Virginia Supreme Court in Steel, 209 W. Va. 706, take the view that the obligor parent is not entitled to reimbursement of any excess child support because the funds belong to the child, not to the noncustodial parent, and the child has committed no inequitable conduct nor been unjustly enriched. This position finds support in federal statutes and regulations, which some courts interpret as prohibiting the direct reimbursement of SSDI moneys.
Under these statutes and regulations, derivative benefits for dependent children of disabled individuals entitled to SSDI payments may be made to a representative payee who has a fiduciary duty to use the funds “in a manner and for the purposes he or she determines” benefit the child and are consistent with the child’s best interests. 20 C.F.R. § 404.2035(a) (2015); see 42 U.S.C. § 402(d)(1) (2012). The SSA considers funds to have been used for the benefit of the child if they are applied toward the child’s “[cjurrent maintenance,” which “includes cost incurred in obtaining food, shelter, clothing, medical care, and personal comfort items.” 20 C.F.R. § 404.2040(a) (2015). Any amount remaining after proper expenditures must be conserved or invested on behalf of the child. 20 C.F.R. § 404.2045(a) (2015). The SSA protects against noncompliance by requiring a representative payee to keep records of the use of the funds and to submit a written report at least once a year. 42 U.S.C. § 405(j)(3)(A) (2012); 20 C.F.R. § 404.2065 (2015). Further, “[a] representative payee who misuses benefits is responsible for paying back misused benefits.” 20 C.F.R. § 404.2041(a) (2015). As a package, these provisions severely limit the ability to redirect the use of the derivative benefit to reimburse a child-support obligor.
In addition, 42 U.S.C. § 407(a) (2012) provides, in part, that “none of the moneys paid... under this subchapter shall be subject to execution, levy, attachment, garnishment or other legal 'process.” (Emphasis added). In Philpott v. Essex County Welfare Bd., 409 U.S. 413, 417, 93 S. Ct. 590, 34 L. Ed. 2d 608 (1973), the United States Supreme Court held that 42 U.S.C. § 407 “imposes a broad bar against die use of any legal process to reach all social security benefits.”
In this case, Judge Atcheson in his dissent mentions 42 U.S.C. § 407(a) but dismisses it as inapplicable because “Papineau is not a creditor looking to seize the disability benefits to satisfy some existing debt for goods and services, thereby depriving the children of essential financial resources.” Stephenson & Papineau, 49 Kan. App. 2d at 487 (Atcheson, J., dissenting). As such, Judge Atcheson listed as a possible “accommodation” to Papineau the possibility of a “payment or payments from Stephenson to Papineau.” 49 Kan. App. 2d at 490 (Atcheson, J., dissenting).
Other courts have not been as dismissive of the statute’s effect, concluding that regardless of whether a child-support obligor is a typical creditor, the plain language of the statute prevents SSDI moneys from being subject to any “other legal process,” and a modification proceeding seeking reimbursement of SSDI moneys is a legal process, rendering 42 U.S.C. § 407(a) applicable and direct reimbursement unavailable. See, e.g., Brevard v. Brevard, 74 N.C. App. 484, 487-88, 328 S.E.2d 789 (1985); LaMothe v. LeBlanc, 193 Vt. 399, 409, 70 A.3d 977 (2013); Steel, 209 W. Va. at 709-10. More generally, several courts have held that the doc trine of federal preemption precludes state courts from exercising jurisdiction to direct a representative payee’s disposition of derivative social security funds. E.g., C.G.A. v. State, 824 P.2d 1364, 1367 (Alaska 1992); In re Guardianship of Smith, 2011 ME 51, ¶¶ 13-14, 17 A.3d 136; see LaMothe, 193 Vt. at 426-27 (Dooley, J, concurring in part and dissenting in part) (discussing cases). But see Hamilton v. Reynolds, 5 N.E.3d 1053, 1061 (Ohio App. 2013) (without discussing § 407, court orders nonobligor to reimburse duplicative child support at rate of $500 per month); Orr v. Orr, 871 S.W.2d 695 (Tenn. 1993) (not discussing § 407 and permitting, with little explanation, credit for a lump-sum payment of SSDI benefits); Rathbone v. Corse, 2015 VT 73, ¶ 19, 124 A.3d 476 (2015) (not discussing § 407 but holding that “[allowing reimbursement for payments during the pendency of an application would encourage obligor parents to continue support payments as they await the outcome of their SSDI applications”).
Despite the fact that those courts that consider the effect of § 407 seem to agree that a court cannot order a nonobligor parent to turn over a lump-sum SSDI accrued-benefit payment to an ob-ligor or to redirect monthly SSDI benefits, several have still ordered relief to an obligor whose timely child-support payments were duplicated by a lump-sum SSDI accumulated derivative benefit. The relief granted and the rationale for doing so have varied.
In Davis v. Davis, 2010 ND 67, ¶ 16, 780 N.W.2d 707, the North Dakota Supreme Court concluded § 407 did not preclude it from enforcing a state regulation drat allowed an obligor to receive a credit toward the obligor s child support obligation for any derivative social security benefits. The court reasoned that “[a]ny difficulty [the obligor] may have in enforcing the judgment provides no basis for denying him a judgment mandated under the law.” 2010 ND 67, ¶ 16.
Other courts have construed 42 U.S.C. § 659(b), which excepts from the reach of § 407 a “notice to withhold income ... or any other order or process to enforce support obligations against an individual,” to allow a court to consider a representative payee’s receipt of a lump-sum benefit in computing child-support benefits. In Silver v. Pinskey, 2009 Pa. Super. 183, ¶ 17, 981 A.2d 284, for example, the court reversed an order that redirected a portion of an SSDI benefit from a representative payee to the disabled parent who had shared residential custody, finding that order violated 42 U.S.C. § 407. Nevertheless, the court determined that on remand 42 U.S.C. § 659 granted authority to make the SSDI funds accessible via a child-support order. The court allowed an upward departure from that state’s child-support guidelines in a manner that would require the representative payee to pay child support to the disabled parent, who along with the nonobligor incurred expenses related to the “current maintenance” of the children while they were in his home under a shared residential custody arrangement. In LaMothe, 193 Vt. at 414, the Vermont Supreme Court reached the same result in another shared residential custody situation, stating: “We do not purport to direct mother as representative payee to transfer the derivative benefit to father; rather, we consider the implications of die derivative payment on the parties’ respective [child-support] obligations.”
In both of these cases, the parents’, shared residential custody justified sharing the monthly SSDI derivative benefits. Absent those circumstances, the court in Brevard, 74 N.C. App. at 488, determined that § 659 does not apply as an exception to § 407 with respect to derivative Social Security benefits. The Brevard court reasoned that the benefits belong to the children and children are not individuals obligated to pay child support under state law. Therefore, the funds could not be redirected.
Nevertheless, other courts have recognized yet another option— requiring the lump-sum SSDI benefits to be used to reheve the obligor of support obligations that may exist in addition to the child support payments, such as the cost of health insurance or paying unreimbursed medical or dental expenses. In LaMothe, in addition to adjusting the monthly child support because of the shared-custody arrangement, the court allowed the SSDI accumulated benefit to be credited against orthodontic expenses the father had been previously ordered to pay. The court concluded: “Unless the benefit is applied and credited toward [the disabled obligor’s] child support obligations, including those relating to health expenses, [the nonobligor] will receive a windfall and [the obligor] will be forced to essentially malee a double payment.” 193 Vt. at 417.
6. A Middle Ground
As these cases illustrate, the equitable case for reimbursement or some form of credit has compelled many jurisdictions to turn away from a categorical rule denying any accommodation. As we weigh this against the “nothing” approach adopted by the Court of Appeals majority, we conclude a discretionary approach within the restrictions, of federal law best furthers the policies behind our child support guidelines.
Child support is complicated. The financial assets of a party reflected by a spreadsheet’s rigid numbers, devoid of context, are not tire only thing that drives the calculation. District courts can consider practical reality. See Guidelines § IV.E.6. (2014 Kan. Ct. R. Annot. 145) (“The financial situation of the parties may be reason to deviate from the calculated Basic Parental Child Support Obligation if tire deviation is in the best interest of the child. . . . One example might be if either party has more than one job, the circumstances requiring tire additional employment should be considered.”). A lump-sum payment of SSDI benefits, the parties’ good faith, and other equities can-—and should—be among the factors a district court considers in modifying or creating a child-support order that both satisfies tire child’s best interests and is equitable to both parents.
Certainly, per se rules are more easily applicable than case-by-case determinations. But the Guidelines anticipate tire need for discretion, when necessary. See Guidelines § I. (2014 Kan. Ct. R. Annot. 127) (district court 'can make adjustments to the child-support calculations if relevant evidence establishes “it is in the best interest of the child”). Further, § V.B.2. permits district courts to impose sanctions in some situations, such as the failure to disclose a material change of circumstances or the concealment of financial information. And Arose sanctions can be in the form of a credit, an increase in the child-support obligation, or “other sanctions.” (2014 Kan. Ct. R. Annot. 148.) As a result, district courts are adept at considering the circumstances in each case and exercising discre tion to fashion remedies that are in the best interests of children and also within the boundaries of law and equity.
We do not believe that a lump-sum SSDI payment should receive special treatment by being removed from the realm of judicial discretion. We hold, therefore, that a district court may—but does not necessarily have to—grant a credit to an obligor who is current on child support when a lump-sum SSDI accrued benefit duplicates the obligor s support payment. A credit, if granted, may be used to offset other support obligations imposed by the court on the obligor. Alternatively, die district court might adjust an obli-gor’s support obligations, require reimbursement of the duplicative payments from funds that are discrete from SSDI benefits, or fashion some other equitable remedy permitted under applicable federal statutes and regulations.
Certainly, the federal statutes and regulations limit the discretion and the practical effect of any credit or adjustment. Nevertheless, as suggested by tire North Dakota Supreme Court in Davis, 2010 ND 67, granting a credit does not by itself violate federal law. Rather, federal law may limit the types of remedies available to ensure an actual realization of the credit’s benefits.
On the other hand, there may be real impact. For example, the SSDI benefit can be credited toward a shared expense, such as uninsured dental and medical expenses, the costs of lessons or activities, private-school tuition, childcare, or other costs the parties have agreed to share. See, e.g., LaMothe, 193 Vt. at 412-13 (crediting lump sum towards a shared orthodontic expense). A credit towards other obligations for paying the expenses related to the child’s current maintenance does not violate the restrictions on the use of SSDI moneys, nor would a modification of child support in an appropriate case, such as Silver, 2009 Pa. Super. 183, or LaMothe, 193 Vt. at 414.
In some unusual cases, it may even be equitable to require the nonobligor parent to reimburse an obligor parent, in full or in part, from funds that are discrete from SSDI benefits. See Steel, 209 W. Va. at 709-10 (denying reimbursement because 42 U.S.C. § 407[a] does not allow it and the equities of the case do not support reimbursement from other funds). In one such case, Hamilton v. Reynolds, 5 N.E.3d 1053, 1061 (Ohio App. 2013), equitable considerations drove tire court to order a nonobligor to reimburse the obligor from other funds. The court noted that the obligor father had given notice of his disability claim and remained current with his support. Meanwhile, the nonobligor mother knew that she might have to reimburse him (the issue had arisen before). Yet in the few months after receiving $17,052 in accumulated benefits, the mother spent the entire accumulated SSDI payment and did not tell tire court what she had purchased. Given those circumstances, the Ohio Supreme Court affirmed the district court’s order requiring the mother to repay the father for his overpayment of child support in monthly installments of $500. 5 N.E.3d at 1062-63.
These cases provide just a few examples of how a district court might exercise discretion when allowing a credit. We cannot predict all situations, and other circumstances may arise where a district court finds a solution that does not run afoul of the constraints imposed by federal law. In summary, it would be within the district court’s discretion to allow the accommodation or to even enter an order allowing a credit to be applied in the future.
We recognize that allowing the district court this discretion does not eliminate disparate treatment of all obligors. In part, this is due to the Taber panel’s decision to mandate a credit when an arrearage exists rather than to recognize discretion as we are today. But, as we have previously noted, tire holdings in Taber and Hohmann are not at issue in this case. Nevertheless, through today’s decision, at least all obligors who have paid their support will be able to argue for an equitable result.
The district court did not recognize this discretion. Therefore, we remand this case to the district court for determination of whether it is in the best interests of the children under the circumstances of this case for Papineau to receive a credit and perhaps some form of accommodation.
Conclusion
We reverse the Court of Appeals and the district court and remand to the district court for reconsideration of Papineau s motion to modify.
Reversed and remanded with directions. | [
-48,
124,
-43,
94,
10,
1,
35,
-88,
83,
-77,
-89,
83,
-29,
114,
20,
57,
-31,
59,
96,
122,
83,
-77,
55,
-64,
-2,
-77,
-15,
-33,
-71,
105,
100,
-108,
76,
48,
34,
85,
102,
-111,
-91,
80,
6,
-122,
-119,
77,
89,
6,
36,
-23,
18,
13,
113,
-106,
-109,
46,
56,
-50,
12,
14,
89,
113,
-112,
-46,
-21,
5,
127,
69,
-77,
68,
-104,
102,
112,
-114,
-114,
57,
1,
-23,
50,
-74,
-122,
116,
91,
-71,
-95,
70,
96,
-124,
16,
-11,
-4,
8,
-114,
-33,
31,
-92,
-101,
25,
3,
15,
-74,
-65,
92,
20,
46,
-4,
106,
-123,
15,
-20,
15,
-114,
-42,
-111,
-52,
120,
12,
-125,
-17,
-95,
-96,
117,
-53,
-32,
92,
67,
122,
-101,
-42,
-70
] |
Denied.
50 Kan. App. 2d 623 | [
21,
-21,
-27,
60,
-116,
-63,
-127,
30,
9,
-5,
119,
115,
-17,
-38,
4,
121,
-17,
111,
-76,
123,
-53,
-78,
127,
72,
82,
91,
-37,
-35,
-72,
107,
-15,
-108,
76,
-16,
-86,
21,
6,
-62,
-115,
88,
-116,
4,
-103,
-51,
17,
-109,
60,
-29,
122,
7,
17,
-124,
-13,
44,
26,
-32,
-127,
124,
-37,
-67,
-39,
-7,
-103,
-105,
-36,
20,
-30,
20,
-112,
-63,
68,
126,
-112,
-112,
33,
-24,
115,
38,
-122,
116,
3,
-103,
-91,
-27,
98,
35,
40,
-20,
124,
-82,
30,
28,
-115,
-90,
-45,
8,
105,
25,
-106,
-99,
112,
22,
15,
-6,
99,
-124,
15,
108,
-117,
-1,
-8,
-77,
31,
57,
12,
17,
-17,
-108,
-112,
49,
-33,
-16,
76,
-41,
49,
-102,
94,
48
] |
The opinion of the court was delivered by
Beier J.:
Defendant Michael Reed appeals his first-degree felony-murder conviction, arising out of the shooting death of Vincent Barnes. Reed raises several instructional issues, a sufficiency of the evidence challenge, and a hearsay challenge. He also asserts entitlement to reversal because of cumulative error. For its part, the State questions whether this court has jurisdiction to consider Reed’s appeal in the first place.
As detailed below, we hold that we have jurisdiction over Reed’s appeal, but none of his arguments lead to the relief he seeks.
Factual and Procedural Background
On the night of May 15, 2009, Reed; Reed’s brother, Robert; and Jeremy Trout went to a bar for an impromptu bachelor party for Robert. The three men drank beer and had several shots of liquor. After about an hour, Reed and Trout left to meet Reed’s girlfriend, who was going to give them some money.
Reed called Barnes in an attempt to purchase cocaine. Trout would later testify that “the guy [Reed] called had owed him from a past deal. I think [Reed] was trying to get some more, and towards the tab, and take it off his tab or whatever. But the guy ended up hanging up.” Although Reed called Barnes back several times, Barnes never answered.
After obtaining the money, Reed and Trout returned to the bar. Trout would later testify that Reed told Robert “that the guy had hung up [on him], and he felt like he was trying to punk him.”
A short time later, the trio left the bar and spent about 30 minutes at Reed’s house. Reed tíren decided to try to buy cocaine from a man named Stacie. The group drove to two separate bars to look for Stacie, but never found him.
Reed then drove tire group to Barnes’ apartment. When they knocked, Barnes’ sister, Alexia, answered the door. Reed was the first to enter, followed by Trout, and then Robert. Trout would eventually testify that “[Reed] was just talking to [Barnes]. Just, you know, why did you hang up on me, I thought we was friends, and just conversation like that.” According to Trout, at that point, “Robert, he starts ranting and raving, [hjanging up on my brother, man, trying to punk my bro.” Alexia’s eventual testimony would be similar: When Robert came in, he “was yelling, why are you hanging up on my brother like that?” and then began to argue with Barnes and pulled out a gun.
Robert fired a shot into the ceiling of the apartment. Barnes told Alexia to call the police. As she started to walk out of the apartment to do so, Robert held the gun to her head and said, “Call the cops, you bitch.” Meanwhile, Trout grabbed Barnes and Reed began punching Barnes. Eventually Robert joined in, and Alexia left the apartment. At some point, Robert shot Barnes in the stomach from “very close” range.
Exactly who remained in the apartment at the time Barnes was shot would be disputed at trial. Alexia said she was running back up a set of stairs toward the apartment when she heard the shot and saw Reed, Robert, and Trout run out of the apartment. But both Robert and Trout would testily that neither Reed nor Trout was in the apartment when Robert shot Barnes.
After the shooting, Alexia found Barnes’ cell phone and looked at his last call, which was from a person listed on the phone as “Micky Norms.” Alexia would testify at trial that she asked Barnes who shot him, “if it was—in the phone it was Micky Norms. And I was like, Did Micky shoot you, did Micky shoot you. And he said, Yes.”
Christopher Marceau and Daniel Gumm were the first police officers to reach the scene. For safety reasons, the officers parked their patrol cars outside of the apartment complex and walked in. They could hear a man yelling for an ambulance.
When the officers found Barnes, they attempted to put pressure on his wound. Marceau would testify that he asked Barnes who shot him. According to Marceau, Barnes
“stated the first name Micky several times. Then he [stated] Micky Norms or Micky North. Micky was clear, I could hear he was saying [] Micky. And then the Norm or North was not as clear, probably because of Vincent not—he stated that he wasn’t able to breathe veiy well. And so that last part, Norms or North, I could not hear very well.”
A third officer, Jason Newberry, also would testify that Barnes identified the shooter as “Mickie or Nicky.” In addition, when Newberry asked Barnes, Barnes told him it was “a .38, which was pretty specific. So I backed up. And I asked him, revolver or semiautomatic. He says, revolver .38.”
Ambulance workers put Barnes on a stretcher, but Newberry would testify that “between the time they get to the top of the stairs and down the stairs, [Barnes] had quit struggling and he didn’t look . . . like he was breathing [anymore].” Barnes was iden tified “code blue” in the ambulance and pronounced dead at the hospital.
Investigators examined Barnes’ phone and found a contact for “Mickie Norms Buddy.” They learned that the number associated •with this contact was attributed to Reed and that Barnes had received one connected call from that number on the night of his death. The one call was followed by a series of missed calls from the same number.
Reed, Robert, and Trout were arrested the day after Barnes’ death. Reed was charged with first-degree felony murder, based either on possession of cocaine or on aggravated battery, and with aggravated assault of Alexia.
The State filed a pretrial motion in limine to admit the statements Barnes had made before his death, both to his sister and to first responders. After hearing arguments on the issue, the district judge ruled that Barnes’ statements qualified as admissible dying declarations. Specifically, the district judge said:
“Vincent Barnes’ statements are reliable, they are voluntary. The evidence— there’s no evidence of any coercion. In fact, the evidence is to the contrary. . . . [Barnes’] statements are the result of a question by an officer and his—and his sister, but there’s no pressure applied other than the fear of death. So I believe Aey are voluntary. I believe they are in good faiA. I Ainlc the evidence supports no bad motive by [Barnes]. There’s no evidence Aat he was acting on bad information. And so I believe Aat my ruling would be that his statements are voluntary and in good faith. So the next element is: Was [Barnes] conscious of his impending deaA and Ad he believe there was no hope of recovery? I look at Officer New-berry. He testified Ae facts of the situation when he Ascovered them, Aat when he—he heard a black male yell—what turned out to be a black male yelling for help. And [Barnes] would have been right under Aat person yelling for help, and so that would have added to Ae stress and added to the belief Aat he was about to die. There was blood on his abdomen. This is all from Newberiy. There was blood on Ae floor and entiy. The black male, the friend, was applying pressure. [Barnes] tried to get up. There’s no question he was conscious. He was able to identify a .38 revolver and the name Mickey. He had Afficulty speaking, difficulty breaAing, he was coughing up blood, he was very panicked,’ and he knew he had been shot. Officer Marceau confirmed all of that, but added Aat [Barnes] was on his knees at one point. He was swaying and staggering, tiying to get up. There was blood coming out of the wound. [Barnes] specifically said T can’t breaAe’ and also confirmed he was panicky. EMS . . . said Aat he was wriAing in pain and was in, quote, a lot of pain. That [Barnes] was very upset. Quote, pretty much hysterical. In 16 minutes from tire dispatch, [Bames] was Code Blue and died. So we have a very short time from gunshot to actual death. There appears to be no question in my mind that the facts support that he was conscious and very aware of his impending death and he had no hope of recovery. I’m ruling that [Barnes’] statements come in based upon dying declaration. They are a dying declaration. And that is regardless of whether or not they are testimonial.”
The district judge also ruled, in the event that the Confrontation Clause applied, see Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), that Bames’ statements were not testimonial and could also have been admitted under the excited utterance exception to the hearsay rule. The district judge rejected the State’s argument that Barnes’ statements should he admissible under the doctrine of forfeiture by wrongdoing, in other words, because Reed’s behavior prevented Barnes from being able to testify.
At the conclusion of Reed’s trial, the district judge provided the juiy with the following first-degree felony-murder instruction:
“In Count One, Michael Reed is charged with the crime of Murder in the First Degree - Felony Murder. Michael Reed pleads not guilty.
“To establish tire charge, each of the following claims must be proved:
“1. That Michael Reed or another killed Vincent Bames;
“2. That such killing was done while in the commission of, attempting to commit, or in flight from committing or attempt to commit Possession of Cocaine or Aggravated Battery; and
“3. That this act occurred on or about the 15th day of May, 2009 in Sedgwick County, Kansas.
“The elements of Possession of Cocaine are as follows:
“1. That Michael Reed possessed cocaine;
“2. That Michael Reed did so intentionally; and
“3. That this act occurred on or about the 15th day of May, 2009 in Sedgwick County, Kansas.
“The elements of Aggravated Battery are as follows:
“1. That Michael Reed intentionally caused bodily harm to another person in any manner whereby great bodily harm or death can be inflicted OR intentionally caused physical contact with another person in any manner whereby great bodily harm or death can be inflicted; and;
“2. That this act occurred on or about the 15th day of May, 2009 in Sedgwick County, Kansas.”
The district judge also instructed the jury on intentional second-degree murder and voluntary manslaughter as lesser included of fenses of first-degree felony murder. Reed had requested, but was denied, instructions on unintentional second-degree murder and involuntaiy manslaughter.
Reed had also requested a voluntary intoxication instruction based on evidence of his intoxication and the intoxication of his brother. The district judge refused the request, saying, “[Tjhere was little to no evidence of—I would say no evidence of intoxication .... There certainly was evidence of drinking, that he had shots or beer. But there was no additional, no evidence to the level of intoxication.”
The jury returned guilty verdicts on both first-degree felony murder and aggravated assault. The district judge sentenced Reed to life in prison for the felony murder and to a consecutive 18 months for the aggravated assault. The judge did not rule on the State’s request for $5,000 in restitution during Reed’s November 10,2011, sentencing hearing because the defense sought additional time to review the State’s documentation for tire request. The judge agreed to leave the issue of restitution open and scheduled an additional hearing for December 16,2011. Reed filed his notice of appeal on November 16, 2011, while the issue of restitution was still pending in the district court. According to the district court record, the judge later filed an “Order Regarding Restitution.”
Jurisdiction
We first briefly address the jurisdictional challenge raised by the State in its brief.
Relying on State v. Hannebohn, 48 Kan. App. 2d 921, Syl. ¶ 3, 301 P.3d 340 (2013), abrogated by State v. Hall, 298 Kan. 978, 319 P.3d 506 (2014), the State argues that a defendant’s sentence is not final if restitution has been ordered but no amount has been set. According to the State, because the district judge’s journal entry of judgment left the issue of restitution open, Reed’s notice of appeal was premature and could not endow this court with 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).
In Hall, we rejected Hannebohn to the extent that “it implies that a notice of appeal filed before a restitution amount has been set presents an appellate jurisdictional bar to review of the amount.” Hall, 298 Kan. at 988. Instead, this court held “that, in a criminal matter, where judgment is effective once pronounced from the bench, a premature notice of appeal that seeks review of a conviction and sentencing yet to be completed lies dormant until final judgment including the entire sentence is pronounced from the bench,” at which point the notice of appeal becomes effective. 298 Kan. at 988.
At oral argument, the State conceded that Hall is the current controlling caselaw. The fact Reed filed his notice of appeal before restitution was finalized did not deprive this court of jurisdiction over Reed’s appeal.
Merger of Aggravated Battery and Felony Murder
Felony murder is the killing of a human being committed “in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.” K.S.A. 21-3401(b). For felonies listed under subsection (b) of K.S.A. 21-3436, including aggravated battery, the felony must be “so distinct from the homicide alleged ... as to not be an ingredient of the homicide alleged.” Reed argues on appeal that the district judge erred by failing to instruct the jury that it must make a specific finding whether “the underlying felony of aggravated battery was so ‘distinct from the homicide alleged ... as to not be an ingredient of the homicide alleged.’ ” Without such a finding, he asserts, we cannot avoid the conclusion that the aggravated battery and the felony murder offenses merged.
Our review of a jury instruction issue follows a four-step progression:
“ ‘(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 tlie error was harmless, utilizing die test and degree of certainty set fordi in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).’ ” State v. Story, 300 Kan. 702, 710, 334 P.3d 297 (2014).
Reed does not cite any authority to support one of the supporting pillars of his argument on this issue, i.e., that his suggested instruction was legally appropriate. He directs us to no precedent demonstrating that the question of whether a predicate felony is distinct from a homicide is one of fact for the jury rather than one of law for the court. Our research has revealed that, to the degree Kansas precedent exists, it defeats Reed’s challenge. See State v. Sanchez, 282 Kan. 307, 316, 144 P.3d 718 (2006) (distinction between underlying aggravated battery, felony murder analyzed as legal question calling for interpretation of K.S.A. 21-3436[b][6]).
And we note that other jurisdictions have typically treated the question of merger as a question of law. See Barnett v. State, 783 So. 2d 927, 929 (Ala. Crim. App. 2000) (whether felonious assault resulting in victim’s death merges with homicide treated as matter of law); People v. Sarun Chun, 45 Cal. 4th 1172, 1178, 203 P.3d 425 (2009) (certain crimes merge with felony-murder as matter of law); People v. Morgan, 197 Ill. 2d 404, 447, 758 N.E.2d 813 (2001) (whether forcible felonies merge with felony murder treated as question of law); State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006) (whether act causing willful injury merges with act that causes victim’s death examined as matter of law).
Based on tírese authorities, Reed’s jury instruction-based challenge is completely without merit. We need not reach die ultimate merits question of whether, as a matter of law, the aggravated battery here was “so distinct from the homicide alleged ... as to not be an ingredient of the homicide.” This question has not been raised before us. However, lest we encourage a later frivolous claim by way of a K.S.A. 60-1507 motion, we note that the fatal shooting of Barnes at close range by Robert was unquestionably distinct in method and in principal perpetrator from the beating being administered by Reed and Trout.
Sufficiency of Evidence for Alternative Means
Reed attempts to challenge the sufficiency of the evidence to support both of the alternative means for felony murder, i.e,, the alternative underlying crimes of aggravated battery and possession of cocaine.
“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 the 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 [, 285 P.3d 361 (2012)]. 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 the State fails to present sufficient evidence to support each means, reversal is required. Rojas-Marceleno, 295 Kan. at 544.” State v. Newcomb, 296 Kan. 1012, 1014, 298 P.3d 285 (2013).
Specifically, Reed asserts that the evidence was inadequate to demonstrate to the jury that the aggravated battery and the felony murder did not merge. We have explained above that Reed’s argument in this regard rests on a categorization of the question as one for the jury rather than for the court. Merger raises a question of law, not a question of fact. Reed’s challenge to the sufficiency of evidence on the alternative means of aggravated battery thus fails.
Regarding the alternative means of possession of cocaine, Reed’s argument comes too late. He made no effort to challenge the sufficiency of the evidence in support of this alternative underlying felony in his brief, mentioning it only at oral argument before this court. The issue is thus deemed waived or abandoned. See State v. Boleyn, 297 Kan. 610, Syl. ¶ 10, 303 P.3d 680 (2013) (failure to brief issues waives, abandons it).
Lesser Included Offense Instructions
Reed next argues that the district judge should have instructed the jury on second-degree unintentional murder and involuntary manslaughter as lesser included offenses of felony murder.
This issue is without merit under current caselaw. See State v. De La Torre, 300 Kan. 591, 602, 331 P.3d 815 (2014). After the parties filed their briefs in this case, we decided State v. Todd, 299 Kan. 263, 278-79, 323 P.3d 829 (2014). In Todd, this court held that the legislature’s amendment of the felony-murder statute to eliminate its lesser included offenses applied retroactively, “preventing appellate argument that a district court erred in failing to instruct on any lesser included offenses of felony murder.” De La Torre, 300 Kan. at 602.
Voluntary Intoxication Instruction
Reed’s other challenge to the juiy instructions focuses on the district judge’s refusal to give a requested voluntary intoxication instruction.
A voluntary intoxication instruction is not required “[ujnless tire State or the defendant presents sufficient evidence showing intoxication to the extent of impairing the ability to form the requisite intent.” State v. Betancourt, 299 Kan. 131, 141, 322 P.3d 353 (2014). “ ‘This court will not infer impairment based on evidence of consumption alone.’ ” State v. Hilt, 299 Kan. 176, 193, 322 P.3d 367 (2014) (quoting State v. Hernandez, 292 Kan. 598, 607, 257 P.3d 767 [2011]). “Loss of memory or inability to remember events before or during the offense may show an inability to form intent. See State v. Minski, 252 Kan. 806, 811-12, 850 P.2d 809 (1993).” Betancourt, 299 Kan. at 141. “[E]vidence that the defendant is so impaired that he or she has lost the ability to reason, to plan, to recall, or to exercise motor skills as a result of voluntary intoxication” can compel a jury instruction. 299 Kan. at 141-42.
In this case, Reed relies primarily on the evidence of alcohol consumption earlier in the evening. In addition, he argues that he “indicated that he did not remember where he went immediately after the offense in his interview with law enforcement.” This argument is based on the testimony of the detective who interviewed Reed after he was arrested. But the detective’s testimony, when read in context, does not support a significant failure of Reed’s memory—alcohol-induced or otherwise. The detective said:
“[Reed] comes down, gets in the Jeep. And they drive—they—he doesn’t remember where they went, they went somewhere nearby and land of sat there for a little []while, anticipated what should they do. Didn’t know—at that point, he says he didn’t know if [Barnes] had been hurt. And so they land of thought out what they were going to do. And then, after a while, they went home.”
In fact, this passage demonstrates that Reed apparently was able to remember what transpired at the unknown location. The evidence Reed relies on is not sufficient to establish anything beyond his mere consumption.
Reed also malees the further argument that, because the jury was instructed that he could be convicted as an aider and abettor, a voluntary intoxication instruction was warranted because of the intoxication and impairment of the principal, Robert. But we need not reach the intriguing legal questions raised by this argument on the record of this case. As with the evidence on Reed himself, the evidence about Robert was limited to mere consumption. That was not enough to support a voluntary intoxication instruction.
Victim’s Out-of-Court Statements
Reed also asserts three interrelated grounds for error in admitting Barnes’ hearsay statements: (1) the district judge erred by concluding that the statements qualified as dying declarations; (2) the admission of a dying declaration violated Reed’s confrontation rights; and (3) the district judge erred in admitting the statements as excited utterances because the hearsay exception’s applicability does not excuse the reversible Confrontation Clause violation.
We review a district judge’s decision on the admission of hearsay evidence for an abuse of discretion. State v. Robinson, 293 Kan. 1002, 1023, 270 P.3d 1183 (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).” State v. Burnett, 300 Kan. 419, 436, 329 P.3d 1169 (2014).
If the issue is whether tire trial court complied with specific statutory requirements for admitting evidence or whether an eviden-tiary ruling violated a defendant’s constitutional rights, our review is de novo. Robinson, 293 Kan. at 1023.
As a preliminary matter, the State argues that Reed should be limited on appeal to his district court argument based on the Sixth Amendment. The State invokes State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009) (“K.S.A. 60-404 dictates 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.”) and State v. Bryant, 272 Kan. 1204, 1208, 38 P.3d 661 (2002) (hearsay objections in district court inadequate to preserve Confrontation Clause argument for appeal).
We acknowledge that Reed’s argument to the district judge centered on the Confrontation Clause, but the State raised the dying declaration and excited utterance issues in its motion supporting admission of Barnes’ hearsay statements, and the district judge specifically discussed whether these exceptions had been satisfied in his ruling. At trial, Reed objected when Marceau began to testily about what Barnes had said to him. Reed’s counsel said, “Because of prior hearings may I have a running objection!?]” This reference to prior hearings gave the district judge another opportunity to reconsider the pretrial rulings on all three grounds Reed advances on appeal. This satisfied one of the important purposes of die contemporaneous objection rule, and we are satisfied that Reed’s trio of appellate hearsay arguments are preserved for our review.
Hearsay is any statement “which is made odier than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” K.S.A. 60-460. “The admissibility of hearsay is governed either by the federal and state Constitutions or by statute, depending on the type of hearsay at issue.” Robinson, 293 Kan. at 1024. Typically the relevant constitutional law is that developed under the federal Sixth Amendment Confrontation Clause. It provides that “the accused shall enjoy the right... to be confronted with the witnesses against him [or her].” The Confrontation Clause bars admission of testimonial hearsay. Michigan v. Bryant, 562 U.S. 344, 354, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011); Davis v. Wash ington, 547 U.S. 813, 823-24, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006); Crawford, 541 U.S. at 68; see also Robinson, 293 Kan. at 1024. Generally, if a statement is found to be testimonial “it must be excluded unless a court finds that the declarant is unavailable as a witness and that the defendant had a prior opportunity to cross-examine the declarant.” 293 Kan. at 1024. Both the United States Supreme Court’s Sixth Amendment jurisprudence and the applicable Kansas statute, however, recognize that dying declarations merit special handling. Under Crawford, the United States Supreme Court left open the possibility that a defendant’s constitutional right to confront witnesses did not necessitate exclusion of a dying declaration. See Crawford, 541 U.S. at 56 n.6; State v. Jones, 287 Kan. 559, 566, 197 P.3d 815 (2008) (discussing Giles v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed. 2d 488 [2008] [statement that satisfies statutory requirement of dying declaration exception to hearsay prohibition admissible even if defendant has not had opportunity to cross-examine declarant]). Under K.S.A. 60-460(e), “[a] statement by a person unavailable as a witness because of the person’s death [is admissible] if the judge finds that it was made (1) voluntarily and in good faith and (2) while tire declarant was conscious of dre declarant’s impending death and believed that there was no hope of recovery.”
Given the analytical equation of the federal constitutional and state statutory standards for which out-of-court statements qualify as dying declarations, Reed’s brief focuses on whether there was an adequate factual basis for a finding that Barnes was conscious of his impending death and believed there was no hope of recovery at the time he made his statements. Barnes’ voluntariness and good faith are unquestioned. According to Reed, testimony that Barnes “tried to sit up or stand up” shows Barnes to be something other than “[a]n individual who believes [he is] dying” because such an individual “would submit to care as opposed to trying to walk away from those who were providing medical care to him.” Reed also notes that there was no testimony that police officers or emergency medical personnel explicitly informed Barnes that he was dying.
Reed’s factual argument all but ignores the district judge’s specific findings and his explicit references to the evidentiaxy support for them:
“Was [Barnes] conscious of his impending death and did he believe there was no hope of recovery? I look at Officer Newberry. He testified the facts of the situation when he discovered them, that when he—he heard a black male yell—what turned out to be a black male yelling for help. And [Barnes] would have been right under that person yelling for help, and so that would have added to the stress and added to the belief that he was about to die. There was blood on his abdomen. This is all from Newberry. There was blood on the floor and entry. The black male, the friend, was applying pressure. Vincent tried to get up. There’s no question he was conscious. He was able to identify a .38 revolver and the name Mickey. He had difficulty speaking, difficulty breathing, he was coughing up blood, he was veiy ‘panicked,’ and he knew he had been shot. Officer Marceau confirmed all of that, but added that Vincent was on his knees at one point. Pie was swaying and staggering, trying to get up. There was blood coming out of the wound. Vincent specifically said T can’t breathe’ and also confirmed he was panicky. EMS—or the EMS Fahrenbruch ... he said that he was writhing in pain and was in, quote, a lot of pain. That Vincent was very upset. Quote, pretty much hysterical. In 16 minutes from the dispatch, Vincent was Code Blue and died. So we have a veiy short time from gunshot to actual death. There appeal's to be no question in my mind that the facts support that he was conscious and very aware of his impending death and he had no hope of recovery.”
We do not reweigh evidence on review, see State v. Lewis, 299 Kan. 828, 835, 326 P.3d 387 (2014), as Reed evidently expects. On the record before us, it cannot be said that the district judge’s decision to allow testimony about Barnes’ out-of-court statements as dying declarations was “arbitrary, fanciful, or unreasonable.” Given this ruling, we need not discuss Reed’s further argument about the Confrontation Clause or the Kansas statute on excited utterances.
Cumulative Error
Reed’s final argument on appeal is that cumulative error requires reversal of his convictions. Because we have not identified multiple errors, the doctrine of cumulative error analysis is inapplicable. See State v. Cameron, 300 Kan. 384, 400, 329 P.3d 1158 (2014).
Conclusion
Defendant Michael Reed’s convictions and sentences for first-degree felony murder and aggravated assault are affirmed. | [
16,
-24,
-41,
-66,
43,
-32,
42,
-72,
81,
-29,
119,
-13,
45,
-47,
21,
121,
-5,
-51,
116,
107,
95,
-73,
7,
97,
-6,
-69,
-78,
-60,
-78,
-50,
-25,
-5,
12,
96,
-50,
85,
102,
-54,
-15,
-48,
-118,
21,
33,
104,
81,
91,
34,
42,
78,
11,
49,
-99,
-29,
44,
21,
-58,
-119,
44,
89,
-67,
120,
56,
-117,
31,
-37,
0,
-93,
-45,
-68,
18,
-8,
28,
-112,
-79,
73,
-24,
122,
-76,
-128,
81,
77,
-103,
-128,
102,
99,
-91,
109,
-51,
-83,
-103,
-82,
58,
-99,
-81,
-8,
105,
9,
100,
-105,
-97,
104,
52,
32,
-8,
-17,
-98,
93,
-20,
-124,
-114,
-76,
-109,
-85,
57,
-46,
114,
-61,
39,
100,
101,
-106,
-52,
94,
117,
114,
95,
-114,
-107
] |
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
LuCKERT, J.:
In this tragic case, an infant died from respiratory failure after becoming trapped between the mattress and footboard of an adult bed at his daycare provider’s home. The State filed criminal charges, and a jury convicted daycare provider Michelle Bolze-Sann of involuntary manslaughter and aggravated endangering a child. Bolze-Sann appealed and before us raises seven issues. Three of her issues relate to the sufficiency of the evidence relevant to proving whether she acted recklessly, which is an element in herent in both crimes as charged. Two other issues relate to alleged errors in instructing the jury: One of these issues relates to the meaning of recklessness and the other to the impact of a daycare licensing regulation on Bolze-Sann’s guilt or innocence. Her other two issues raise procedural errors in the conduct of the trial, specifically in the manner of answering a question from the jury and of accepting the jury’s verdict.
A panel of the Court of Appeals first considered these issues. The panel affirmed Bolze-Sann’s convictions, finding some issues had not been preserved, others lacked merit, and one constituted error—i.e., the district court failed to assure that Bolze-Sann was present when the court and counsel prepared a response to a question asked by the juiy during deliberations. The panel held that error was harmless. State v. Bolze-Sann, No. 105,297, 2012 WL 3135701 (Kan. App. 2012) (unpublished opinion). Bolze-Sann requested this court’s review on some, but not all, of the issues the Court of Appeals considered. We granted her petition for review and now affirm Bolze-Sann’s convictions.
Facts and Procedural Background
Bolze-Sann operated a licensed daycare facility in her home. Zachary Typer, the victim in this case, began attending her facility in February 2007. At the time of Typer’s death on July 2, 2007, he was almost 6 months old. That day, Bolze-Sann placed Typer on an adult bed to nap even though her licensed daycare was subject to regulations promulgated by the Kansas Department of Health and Environment, including K.A.R. 28-4-116(b)(2)(A) (2009). At the time of Typer’s death, that regulation provided: “Napping facilities . . . shall be provided as follows: A crib or playpen with slats not more than 2⅜ inches apart or equipped with bumpers shall be used for each child under 18 months.”
Typer’s parents testified at trial that they had instructed Bolze-Sann to put Typer in a crib or playpen for his naps and that Bolze-Sann had confirmed she would. Typer’s parents also testified that on several occasions they discovered Typer in an adult bed, but Bolze-Sann had always assured them Typer was on the bed for a reason other than napping (such as diaper changing). Typer’s mother testified that in June 2007 she specifically reiterated to Bolze-Sann that Typer was to nap in a crib or playpen, and she further testified that she told Bolze-Sann about Typer s rapidly increasing mobility, which would make it particularly unsafe for him to be on an adult bed even for a short period of time. Typers mother testified that Bolze-Sann had again assured her she would never place an infant in an adult bed for naps.
But some time during the morning on July 2, 2007—according to trial testimony, between 10:30 and 11:30 a.m.-—Bolze-Sann placed Typer down for a nap on a queen-sized bed in the bedroom of her teenage daughter. She arranged a ring of pillows and blankets around Typer. She checked on Typer around 12:30 p.m. and noticed he had moved within the ring of pillows; she moved Typer back to the center of the ring. Trial testimony from police officers indicated that Bolze-Sann at some point claimed to have checked on Typer at least one more time. Bolze-Sann later experienced a migraine headache, and she took a muscle relaxer and rested on the couch. Her daughter came home and heard Typer crying, but Bolze-Sann said not to get him because she had just laid him down for a nap.
Bolze-Sann’s daughter eventually went to her bedroom to take a nap, but she never saw Typer and assumed he was sleeping in a different room. About an hour later, Bolze-Sann discovered Typer wedged between the mattress and footboard of the queen-sized bed. He was unresponsive. Bolze-Sann directed her daughter to call 911 and began performing CPR. Emergency responders could not detect any cardiac activity or signs of blood circulation on their arrival. Typer was pronounced dead a short time later. An autopsy revealed respiratoiy failure, secondary to positional asphyxia (i.e., his respiratory passages were obstructed), which resulted in suffocation and caused his death.
Analysis
Three of Bolze-Sann’s appellate issues allege that the State failed to present sufficient evidence. In each, she focuses on an alleged failure of the State to prove that her conduct was reckless. She essentially makes the same factual argument regarding the mean ing of recklessness in each of the three issues, but she recasts the basis for her arguments by phrasing them in terms of the State’s failure to present sufficient evidence of: (1) probable cause at her preliminary hearing; (2) the elements at trial; and (3) each of the alternative means of involuntary manslaughter presented to the jury—i.e., an unintentional killing done recklessly or an unintentional killing done in the commission of aggravated endangering a child. See K.S.A. 21-3404(b) (defining involuntary manslaughter); K.S.A. 21-3608a(a)(2) (defining aggravated endangering a child). Under any theory, Bolze-Sann’s arguments fail.
Issue 1: The district court properly denied Bolze-Sann s pretrial motion to dismiss.
We first address her argument that the district court erred in denying her pretrial motion to dismiss. In the motion, she argued the evidence at her preliminary examination was insufficient, as a matter of law, to establish probable cause that she had committed the crimes of aggravated endangering a child or involuntary manslaughter. See K.S.A. 22-2902 (defining State’s burden of establishing probable cause during preliminary examination). The district court denied the motion. On appeal, the State asserts Bolze-Sann filed her motion to dismiss outside the statutory time limit for such motions. The State’s argument determines this issue.
K.S.A. 22-3208(4) defines the time limits for filing a motion to dismiss. At the time of Bolze-Sann’s motion, the statute required a defendant to seek dismissal no later than “20 days after tire plea is entered.” See L. 2010, ch. 135, sec. 18 (extending the time period from 20 days to 21). The failure to comply with this time limitation “constitutes a waiver and precludes review on appeal.” State v. McClain, 258 Kan. 176, 185, 899 P.2d 993 (1995); see also State v. Weigel, 228 Kan. 194, 201, 612 P.2d 636 (1980); State v. Smith, 215 Kan. 34, 37, 523 P.2d 691 (1974).
Here, Bolze-Sann filed her motion to dismiss more than 100 days after she entered her plea. Accordingly, under the plain language of K.S.A. 22-3208(4), her motion was untimely, and she has waived her argument regarding the district court’s handling of her motion. See McClain, 258 Kan. at 185.
Issue 2: Sufficient evidence supported Bolze-Sann s convictions.
We next address Bolze-Sann’s argument that there was insufficient evidence at trial to sustain her convictions of involuntary manslaughter and aggravated endangering a child.
“ When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ ” State v. Ortega, 300 Kan. 761, 769, 335 P.3d 93 (2014) (quoting State v. Raskie, 293 Kan. 906, 919-20, 269 P.3d 1268 [2012]). In reviewing all the evidence in the light most favorable to the prosecution, we will not “reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.” Raskie, 293 Kan. at 920. Rather, we examine all the evidence favorable to the prosecution against “the essential elements of a charge” to see if sufficient evidence supported all necessary elements. State v. Pratt, 255 Kan. 767, 768, 876 P.2d 1390 (1994); see State v. Murray, 285 Kan. 503, 537-38, 174 P.3d 407 (2008), abrogated on other grounds by State v. Marshall, 294 Kan. 850, 281 P.3d 1112 (2012).
Here, the district court instructed the juiy that to establish the essential elements of involuntaiy manslaughter the State had to prove that Bolze-Sann unintentionally killed Typer and that the killing was done either recklessly or while in the commission of a felony. In this case, the underlying felony was charged as aggravated endangering a child. See K.S.A. 21-3404(b). To find Bolze-Sann guilty of aggravated endangering a child, the jury had to be unanimously convinced beyond a reasonable doubt that she recklessly caused or permitted Typer to be placed in a situation in which his life, body, or health was injured or endangered. See K.S.A. 21-3608a(a)(2).
In focusing on the insufficiency of the evidence of recklessness, an element of both involuntary manslaughter and aggravated endangering a child, Bolze-Sann argues her conduct was not “reckless” for two reasons. First, she contends the State did not show that she realized or should have realized the particular danger of positional asphyxiation. Second, Bolze-Sann disputes whether any danger was “imminent.” Neither argument has merit.
2.1. The State need not prove realization of a specific danger.
Kansas’ criminal intent statute defines reckless conduct as “conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” K.S.A. 21-3201(c). We have held that “[t]o act recklessly, a defendant must know that he or she is putting others in imminent danger.” State v. Gatlin, 292 Kan. 372, 377, 253 P.3d 357 (2011). Importantly, one can act recklessly even without foreseeing “the particular injury that results from his or her conduct. [Citations omitted.]” 292 Kan. at 377; see State v. Deal, 293 Kan. 872, 884, 269 P.3d 1282 (2012) (looking for an act “performed with knowledge the victim is in imminent danger,” even if the ultimate injury—death—was not foreseen).
Applying these principles to this case, we hold there is sufficient evidence from which a reasonable jury could conclude that Bolze-Sann (1) realized the danger to Typer in allowing him to nap on an adult bed and (2) consciously and unjustifiably disregarded that danger. For example, a childcare licensing surveyor testified at trial that she personally inspected Bolze-Sann’s daycare in Februaiy 2007. At that visit, Bolze-Sann confirmed she had appropriate napping facilities for infants and was aware of and understood state regulations requiring that infants nap in a playpen or crib. Also, the repeated conversations between Bolze-Sann and Typer’s parents provided an additional warning that she should not put Typer on an adult bed. Her response and repeated assurance that she would not do so suggests she understood a potential danger existed.
Trial testimony regarding Bolze-Sann’s actions the day of Typer’s death further supported this conclusion: She placed a “barrier ring” of pillows and blankets around Typer on the bed, suggesting she knew there was a danger that he might fall off the bed. At one point, she found that he had moved within tire ring; she responded by picking him up and moving him back to the center of the ring, again suggesting she understood the risk of him falling off the bed’s surface. Still, she did not move him to a playpen or crib.
Further, we are not persuaded by Bolze-Sann’s argument regarding K.A.R. 28-4-116(b). This regulation requires a daycare facility to provide, for each child under 18 months old, a crib or playpen for napping. Bolze-Sann contends the regulation was only meant to prevent children from falling off beds and being trampled. Her argument finds some support from an unpublished Court of Appeals memorandum opinion. See State v. Stahlhut, No. 73,866, unpublished opinion filed November 22, 1996 (Kan. App.).
In Stahlhut, the State charged a daycare provider with endangering a child after she placed an infant on a waterbed for a nap and the infant suffocated when he became lodged between the mattress and the bed frame. K.A.R. 28-4-116(b)(2)(A) was in place at that time, and the State introduced evidence that Stahlhut’s actions violated the regulation. During the trial, a witness testified the regulation was designed to prevent a child from falling from the bed and being trampled. Other testimony established that most asphyxiation dangers were not unique to beds, sofas, or waterbeds and that the danger also existed in cribs and playpens. The jury convicted Stahlhut, but on appeal the Court of Appeals concluded that the district court had abused its discretion by admitting evidence of the regulation because—in light of this trial testimony— K.A.R. 28-4-116(b)(2)(A) was “not relevant to prove suffocation is a foreseeable danger of placing a child to nap outside of a crib or playpen.” Stahlhut, No. 73,866, slip op. at 10; but see slip op. at D-5 (Marquardt, J., dissenting) (contending that “[t]he purpose of [K.A.R. 28-4-116] was to protect the health and welfare of children,” and concluding that the regulation was “very relevant” to the infant’s death by suffocation).
There are several problems with Bolze-Sann’s argument. First, tire district court was not bound by Stahlhut. See Supreme Court Rule 7.04(g)(2) (2014 Kan. Ct. R. Annot. 63) (stating that an unpublished memorandum opinion is not binding precedent [subject to exceptions not relevant here] and is not favored for citation). Second, the evidence in this case regarding the purpose of the regulation differed from the evidence in Stahlhut. Here, a childcare licensing surveyor testified that preventing trampling was “part” of the reason and “one” of the purposes of K.A.R. 28-4- 116(b). The primary danger contemplated by the regulation is a fall from the bed. Here, a reasonable jury could conclude that falling off the bed was the proximate cause of Typer s death and that Bolze-Sann knew of this danger and disregarded it. See State v. Anderson, 270 Kan. 68, 73-74, 12 P.3d 883 (2000) (explaining that the State sufficiently proves its case by showing that the defendant could have reasonably foreseen harm as a result of what she did or failed to do). Finally and perhaps most significantly, the State did not need to prove Bolze-Sann foresaw the precise danger of suffocation so long as imminent danger from her conduct was foreseeable. See, e.g., Gatlin, 292 Kan. at 377; cf. State v. Fisher, 230 Kan. 192, 199, 631 P.2d 239 (1981) (explaining, with respect to the endangering a child statute, that it was meant “to protect children, and to prevent their being placed where it is reasonably certain that injury will result”).
We note that a reasonable jury could have concluded that Bolze-Sann’s conduct was not reckless. A jury might, for example, have found that Bolze-Sann’s actions in creating a barrier ring of pillows showed that she did not consciously and unjustifiably disregard imminent danger. But the State’s point at oral argument is well taken: At this stage we must view all the evidence in the light most favorable to the prosecution, and, viewed in this light, Bolze-Sann’s actions demonstrate she was well aware that it was dangerous to allow an infant to nap on an adult bed and, especially given the warnings by Typer’s parents, that she consciously disregarded the danger. See Ortega, 300 Kan. at 769.
2.2. Evidence established that the danger was imminent.
As for Bolze-Sann’s second attack on the evidence regarding recklessness, we conclude there was sufficient evidence from which a reasonable jury could conclude the danger was imminent. See K.S.A. 21-3201(c) (requiring conduct showing a “realization of the imminence of danger”). We have explained that the term “imminent” refers to a broader time frame than the term “immediate,” although the term “ ‘is not without limit’ ” and refers to a danger “ ‘near at hand.’ ” State v. White, 284 Kan. 333, 351, 161 P.3d 208 (2007) (quoting State v. Hernandez, 253 Kan. 705, 713, 861 P.2d 814 [1993]); cf. State v. Cummings, 297 Kan. 716, 722, 305 P.3d 556 (2013) (discussing “may be injured or endangered” element in K.S.A. 21-3608[a], which contrasts with the element in K.S.A. 21-3608a[a] criminalizing aggravated endangering a child, meaning, as relevant here, recklessly causing a child to be placed in a situation where his or her life, body, or health is injured or endangered).
Certainly, Typer apparently napped without incident for a period of time and did not immediately die from positional asphyxia after Bolze-Sann placed him on the bed. Still, she put Typer in a continuous state of danger. The risk of injury existed the entire time Typer was on the bed because his fall from tire bed could have come at any time. The constant risk of injury while Typer napped made the danger imminent. See State v. Jenkins, 272 Kan. 1366, 1369-75, 39 P.3d 47 (2002) (determining there was sufficient evidence for a jury to conclude that a motorist who had seven prior accidents in 9 years due to seizures knew of the imminent danger he created by driving, even though the defendant may have driven many times without incident).
Even if we were to nominally credit Bolze-Sann’s argument that Typer was not in imminent danger when placed on the bed, there is still sufficient evidence of Bolze-Sann’s recklessness. The State introduced uncontroverted testimony that Bolze-Sann heard Typer crying before his death but, instead of responding to his cries, remained on the couch and even instructed her daughter not to go check on him. Bolze-Sann ignored Typer’s crying for at least 15 to 20 minutes according to Bolze-Sann’s daughter, and there was testimony from an investigator that during a first interview Bolze-Sann stated Typer had cried for 30 minutes and then she did not check on him for 40 more minutes after the crying had stopped. A reasonable jury could conclude from this testimony that danger was indeed imminent and near at hand. This seems especially true given the evidence that Typer was increasingly mobile and the related logical inference that he might have attempted to move himself during his agitation. Yet, Bolze-Sann ignored him. See White, 284 Kan. at 351.
Accordingly, a reasonable jury could conclude from the evidence that Bolze-Sann anticipated danger and yet pursued a course of action contrary to the regulations, contrary to what she knew to be proper procedure, and contrary to the parents’ express warnings. She then failed to check on Typer even after he had cried for at least 15 to 20 minutes. We are satisfied that a rational jury could have found the essential element of reckless conduct and could have found Bolze-Sann guilty beyond a reasonable doubt. See Ortega, 300 Kan. at 769; Pratt, 255 Kan. at 768.
Accordingly, we affirm the Court of Appeals’ conclusion on this issue.
Issue 3: The alternative means jury instruction did not violate Bolze-Sann’s right to a unanimous jury verdict.
In a related challenge, Bolze-Sann notes that the district court instructed on two means of committing involuntary manslaughter—the unintentional killing of Typer (1) “recklessly” or (2) “while in the commission of aggravated endangering of a child.” Once again focusing on die element of recldessness, Bolze-Sann contends she was deprived of her right to a unanimous jury verdict because the State failed to present substantial evidence on each of the alternative means.
“[Wjhere 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 the crime was committed so long as substantial evidence supports each alternative means.” ’ ” State v. Brown, 295 Kan. 181, 188, 284 P.3d 977 (2012) (quoting State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 [1994]; State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]).
The State does not dispute that the instructions presented the jury with two alternate ways to commit the crime of involuntary manslaughter. See Brown, 295 Kan. at 188; see also 295 Kan. at 194-200 (describing the difference between alternative means and options within a means). We, too, find it unnecessary to analyze whether the court instructed the jury on alternative means because, even if it did, there was substantial evidence as to each means.
Bolze-Sann’s focus here is again on the recklessness element that is essential to both charges. And, as we explained above, the State presented sufficient evidence that Bolze-Sann’s conduct was reckless. In fact, Bolze-Sann somewhat concedes that our determination of her sufficiency of the evidence challenge controls our resolution of this issue. Accordingly, in light of our conclusion that there was sufficient evidence from which a reasonable jury could conclude she acted recklessly, we affirm the Court of Appeals’ conclusion that Bolze-Sann was not deprived of her right to a unanimous jury verdict.
Issue 4: The district court did not clearly err by declining to define “imminence” for the jury.
Bolze-Sann’s next argument involves the jury instruction defining “reckless conduct” as “conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” Bolze-Sann contends the district court clearly erred by failing to give a jury instruction defining the term “imminence,” as this term is not a matter of common knowledge and diere is a real possibility the jury would have reached a different verdict had it been instructed that “imminence” does not refer to a time period widiout limit and refers to a danger near at hand. See White, 284 Kan. at 351.
When analyzing jury instruction issues, we follow a three-step process:
“(1) determining whether the appellate court can or should review tire issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i. e., whether the error can be deemed harmless.” State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012).
Our first and third step are interrelated in that whether a party has preserved a jury instruction issue will affect our reversibility inquiry at the third step. See, e.g., State v. Briseno, 299 Kan. 877, 882, 326 P.3d 1074 (2014) (describing a “higher hill for a party that fails to request an instruction”); Williams, 295 Kan. at 515-16; see also K.S.A. 22-3414(3) (“No party may assign as error the giving or failure to give an instruction . . . unless the party objects thereto before the jury retires to consider its verdict... unless the instruction or the failure to give an instruction is clearly erroneous.”). Here, Bolze-Sann did not object to the lack of a specific definition for “imminence,” nor did she propose such a definition. Hence, Bolze-Sann must establish clear error.
At the second step of determining whether there was any error at all, we “ ‘consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.’ ” State v. Herbel, 296 Kan. 1101, 1121, 299 P.3d 292 (2013) (quoting Williams, 295 Kan. 506, Syl. ¶ 4); see also State v. Plummer, 295 Kan. 156, 160-63, 283 P.3d 202 (2012) (utilizing a four-step review of juiy instructions, in which the second and third step ask whether any error occurred, first from a legal standpoint and then from a factual one).
While the district court has a duty to instruct the juiy on the law that applies in a particular case, a district court does not have to provide the jury a definition for widely used words or those readily comprehensible by individuals of common intelligence. State v. Armstrong, 299 Kan. 405, 440, 324 P.3d 1052 (2014); State v. Roberts-Reid, 238 Kan. 788, 789, 714 P.2d 971 (1986). In general, jurors are “expected to decipher many difficult phrases without receiving specific definitions.” State v. Robinson, 261 Kan. 865, 877, 934 P.2d 38 (1997). A district court should only define additional terms if the instructions as a whole would otherwise mislead the juiy or cause it to speculate. Armstrong, 299 Kan. at 440.
Applying these concepts to Bolze-Sann’s arguments, we conclude the district court did not err by failing to define the word “imminence.” Bolze-Sann does not cite any Kansas appellate law suggesting that a district court must define “imminence” for the jury. The term is widely used and readily comprehensible. Armstrong, 299 Kan. at 440; see also People v. Lopez, 199 Cal. App. 4th 1297, 1306-07, 132 Cal. Rptr. 3d 248 (2011) (“There is no reasonable likelihood jurors would fail to understand the difference between imminent danger and future harm . . . .”); Com. v. Thomas, 2005 Pa. Super. 245, 879 A.2d 246, 265-66 & n.11 (Pa. Super. 2005) (reaching a similar conclusion after considering the juiy charges as a whole). If anything, our lack of caselaw affirmatively directing that a definition be given supports the idea that the term does not need to be defined in most circumstances.
As cited by Bolze-Sann, in other cases parties have disputed the extent to which “imminent” differed from “immediate” with regard to the availability of self-defense or defense of others. See White, 284 Kan. at 351; Hernandez, 253 Kan. at 711-13; State v. Osbey, 238 Kan. 280, 282-83, 710 P.2d 676 (1985). “Immediate” refers to a danger even nearer at hand than an “imminent” danger. So even if Bolze-SamTs jury had confused the terms, any mistake could only have helped her because the jury would have looked for an even closer danger than the law required. See White, 284 Kan. at 351.
Furthermore, Bolze-Sann does not actually contend the lack of an explicit definition for the term “imminence” would mislead the jury or cause it to speculate, which are our two recognized exceptions to the general rule that jurors can decipher the meaning of commonly understood words without the benefit of a court-supplied definition. See Armstrong, 299 Kan. at 440; Robinson, 261 Kan. at 877. Instead, she asserts that an instruction defining “imminence”—and, more specifically, defining the term as it was defined in White—would have “helped” and “better focused” the jury. Regardless, the fact that a definition would have been generally beneficial is not, under our precedent, sufficient to transform the omission of such a definition into a legal error. See Armstrong, 299 Kan. at 440; Robinson, 261 Kan. at 877.
Because there was no error, we need not reach the final step of our analysis, i.e., the determination of whether an error in the jury instructions constituted clear error. See Williams, 295 Kan. at 510; Roberts-Reid, 238 Kan. at 790.
Accordingly, we hold that no error—let alone clear error—occurred with respect to the omission of a definition of “imminence” from the jury instructions.
Issue 5: The district court did not err in refusing to issue Bolze-Sann s limiting instruction regarding the evidentiaiy value of a state regulation.
Bolze-Sann’s next jury instruction argument is that the district court committed reversible error by declining to instruct the jury as to how it could consider evidence related to K.A.R. 28-4-116.
At the instruction conference, the district court proposed the following instruction:
“During trial you heard testimony regarding [K.A.R.] 28-4-116, which provides:
‘(b) Napping and sleeping.
(2) Napping facilities or sleeping facilities for evening and overnight care shall be provided as follows:
(A) A crib or playpen with slats not more than 2-⅜ inches apart or equipped with bumpers shall be used for each child under 18 months.’
“This regulation applies to licensed daycare providers and easts to promote the safety of young children. It governs napping during the day, and sleeping during evening and overnight hours. Accordingly, the regulation applied to Ms. Bolze-Sann when she put Zachary Typer down for a nap during the daylight hours of July 2, 2007.”
Bolze-Sann objected to the instruction on the grounds that K.A.R. 28-4-116 was not meant to prevent the harm suffered by Typer (positional asphyxiation) and thus it was not relevant to show whether the harm was foreseeable to her. Additionally and in the alternative, she argued that the district court should add the following language:
“You are further instructed that K.A.R. 28-4-116(b) is not intended to protect infants from suffocation and should not be considered by you in determining whether or not the defendant should have considered that the placing of the child in this manner down for a nap outside of a crib was a foreseeable danger and then taken steps to prevent or address that danger.”
The district court overruled Bolze-Sann’s objection and also declined to add her proposed language. On appeal, Bolze-Sann only challenges the district court’s refusal to add her requested language.
As outlined above, we review jury instruction issues pursuant to a stair-step analysis. See Williams, 295 Kan. at 510. Because Bolze-Sann unambiguously opposed the proposed instruction and in the alternative requested additional language, she fully preserved her argument. Consequently, we will reverse if we find an error and conclude that there is a “reasonable probability” that the error affected the outcome of the trial in light of the entire record. State v. Ward, 292 Kan. 541, 565, 569, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012); see State v. Andrew, 301 Kan. 36, 40, 340 P.3d 476 (2014) (finding that a party preserved an instructional issue for appellate review by articulating specific reasons for an objection).
Once again, Bolze-Sann’s primaiy support for her argument is the unpublished Court of Appeals memorandum opinion in Stahl-hut, which we previously discussed in the context of Bolze-Sann’s sufficiency-of-the-evidence challenge. See State v. Stahlhut, No. 73,866, unpublished opinion filed November 22, 1996 (Kan. App.). As we noted in that discussion, there are several factual distinctions between Stahlhut and this case. These factual distinctions cause us to examine whether Bolze-Sann’s proposed instruction was factually appropriate.
To reiterate some salient points from our prior discussion, even if we were to accept Bolze-Sann’s very limited view of the regulation’s purpose, the regulation was designed, at least in part, to prevent a child’s fall from a bed. And Bolze-Sann overlooks the fact that Typer did in fact fall off the bed in this case. Typer was caught by the footboard, but the proximate cause of Typer’s injuiy was falling off the bed. Stahlhut is further distinguishable because, in contrast to the evidence admitted in Stahlhut, here there was no trial testimony about how Typer was at risk of suffocation in a crib or playpen. Also, the childcare licensing surveyor did not conclusively suggest that the only purpose of K.A.R. 28-4-116(b) was to prevent children from rolling off the bed and being trampled— instead, she testified that this was “part” of the reason and “one” of the purposes. Thus, the evidence in Bolze-Sann’s trial did not support the language she requested in her proposed instruction.
Accordingly, Bolze-Sann’s proposed limiting instruction regarding the use of K.A.R. 28-4-116(b) was not factually appropriate, and her suggestion that the juiy could not consider the regulation in determining whether there was any foreseeable danger associated with her conduct must fail.
Issue 6: The district court’s response to the deliberating jury’s question was harmless error.
During its deliberations, the jury sent a note to the district court regarding the instruction for involuntary manslaughter, which read: “Is there any other alternate definition meaning to the verb, killed?” The district court conferred with the State and Bolze-Sann’s counsel regarding the appropriate response, but the record does not indicate whether Bolze-Sann herself was present. With the assent of both attorneys, the district court responded to the jury’s question in writing, stating: “There’s nothing additional for the Court to add. Please refer to instructions already given.”
Bolze-Sann contends the district court’s handling of the jury’s question presents two related but distinct errors: First, the district court erred by discussing the question outside her presence; second, the district court erred by sending a written response instead of reading the response to the jury in open court. The record is, as point of fact, not clear as to whether Bolze-Sann was present during these proceedings, and thus we must presume that she was not. See Herbel, 296 Kan. at 1107-08.
In asserting her claims of error, Bolze-Sann argues the district court failed to comply with K.S.A. 2014 Supp. 22-3405(a) and K.S.A. 22-3420(3). K.S.A. 2014 Supp. 22-3405(a) provides that a “defendant in a felony case shall be present ... at every stage of the trial . . ., except as otherwise provided by law.” K.S.A. 22-3420(3), at the time of Bolze-Sann’s trial, in relevant part, provided:
“After the jury has retired for deliberations, 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 information on the point of 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 after notice to the prosecuting attorney.”
After Bolze-Sann’s trial, the legislature amended K.S.A. 22-3420, effective July 1, 2014, with the intent that any amendments would apply retroactively. K.S.A. 2014 Supp. 22-3420(f). The State has not asked us to apply this statute, and the parties have not briefed whether retroactive application is appropriate. We, therefore, will not consider the potential impact of these amendments.
Bolze-Sann further asserts that the district court’s failure to discuss the answer in her presence or to convey the answer to the jury in open court gives rise to three constitutional claims involving her rights to be present at eveiy critical stage of her trial, to have a public trial, and to have tire benefit of an impartial judge. See State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014) (reviewing same arguments de novo); see also State v. Verser, 299 Kan. 776, 787, 326 P.3d 1046 (2014) (reviewing de novo an appellate argument regarding “a defendant’s right to be present at eveiy critical stage of his or her criminal trial”).
6.1 Right to he present at every critical stage of trial
Both the United States Constitution and Kansas statutoiy law guarantee a criminal defendant the right to be present at every critical stage of the proceeding. See U.S. Const., amend. VI; K.S.A. 22-3405(1); K.S.A. 2014 Supp. 22-3405(a); see also United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985) (explaining that the Due Process Clause extends the Confrontation Clause of the Sixth Amendment “in some situations where the defendant is not actually confronting witnesses or evidence against him”).
In past cases, this court has explained the statutoiy and constitutional right to be present extends to any period in which the court is conferring with the parties about an appropriate response to a jury question and when the response is communicated to the jury. See Herbel, 296 Kan. at 1109; see also Bowen, 299 Kan. at 353-54 (district court violated defendant’s statutoiy and constitutional rights by answering a jury inquiiy during deliberations with a written note delivered by court personnel instead of the trial judge replying in open court); Verser, 299 Kan. at 787-88 (questions from the jury must be answered in open court in the defendant’s presence unless the defendant is voluntarily absent); State v. King, 297 Kan. 955, 967, 305 P.3d 641 (2013) (defendant’s rights violated when not present when court conferred with counsel about answer or when court communicated with jury); State v. McGinnes, 266 Kan. 121, 127, 967 P.2d 763 (1998) (same, and listing additional precedential cases).
Application of K.S.A. 2014 Supp. 22-3420 may require us to examine the continued viability of the rationale of these cases. But, as we have noted, the State has not asked us to do that in this appeal. In fact, the State does not even argue against a finding of error. It, thus, essentially concedes a violation of K.S.A. 22-3420 occurred and that there was a corresponding violation of the constitutional right to be present during a trial. The State focuses solely on harmless error. Because we agree with the State that the error was harmless, we will also move direcdy to a harmless error review and, assuming a constitutional error, will apply the constitutional harmless error statute. See Rushen v. Spain, 464 U.S. 114, 117 n.2, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983) (“Because we find that no actual prejudice was shown, we assume, without deciding, that respondent’s constitutional right[] to presence . . . [was] implicated in the circumstances of this case.”); see also Verser, 299 Kan. at 789-90 (applying constitutional harmless error standard); Herbel, 296 Kan. at 1109-10 (same).
Under the constitutional harmless error standard, we may declare an error harmless only if “ ‘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 the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.’ ” Verser, 299 Kan. at 789 (quoting Ward, 292 Kan. 541, Syl. ¶ 6); see Chapman v. California, 386 U.S. 18, 22-23, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) (declining to revei'se for constitutional errors that do not affect the substantial rights of a party).
Several factors help determine whether a violation of this right is harmless beyond a reasonable doubt: (1) the overall strength of the case against the defendant; (2) whether either party objected to the manner in which the judge handled the communication; (3) whether the judge’s communication with the jury “concerned a critical aspect of the trial or rather involved an innocuous and insignificant matter,” and also how the communication was conveyed to the jury; and (4) the ability of any posttrial remedy to “mitigate the constitutional error.” McGinnes, 266 Kan. at 132-37; see Herbel, 296 Kan. at 1111.
Again, given the evidence, a reasonable jury could have—and did—convict Bolze-Sann; but the evidence was not so strong as to foreclose a reasonable jury from concluding she was not reckless. Hence, the first factor weighs against the State’s argument. But all other factors weigh in favor of finding the error harmless. Bolze-Sann’s counsel did not object to the district court’s procedure. As to the effect of the error, the present dispute, like in Bowen, focuses on the procedure used to answer the jury’s question rather than the answer’s “substantive content.” See Bowen, 299 Kan. at 358. And the district court did not provide the jury with additional information or information of any import. Instead, the district court merely instructed the jury to refer to the previously provided instructions. Bolze-Sann makes no argument that the content of the district court’s response was in any way prejudicial or inaccurate; in fact, the content of the response was entirely innocuous and insignificant. See Herbel, 296 Kan. at 1111 (looking to whether the ex parte communication concerned a “critical aspect of the trial”). Additionally, Bolze-Sann’s counsel did not seek any posttrial remedy on these grounds. See State v. Herbel, 296 Kan. 1101, 1111, 1114-15, 299 P.3d 292 (2013).
We conclude that the State has carried its burden to show that any error was harmless beyond a reasonable doubt—there is no reasonable possibility that Bolze-Sann’s presence during the discussion of the jury’s question or her presence during the communication of the response to the jury would have had any effect on the outcome of her trial. See Verser, 299 Kan. at 789; McGinnes, 266 Kan. at 132-33. Indeed, Bolze-Sann does not actually argue to the contrary: She focuses her entire argument on the fact that a violation occurred, but she has given us no reason to conclude that her presence would have made any difference. Cf. Gagnon, 470 U.S. at 526 (explaining that “a defendant has a due process right to be present at a proceeding whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge’ ” [quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 78 L. Ed. 674 (1934)]).
Accordingly, we decline to reverse Bolze-Sann’s conviction on this ground.
6.2 Rights to a public trial and an impartial judge
Although a violation of a defendant’s right to be present may be harmless—and, indeed, “ ‘most constitutional errors can be harmless’ ”—a “ Very limited class of cases’ ” involve structural errors subject to automatic reversal. Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 113 L. Ed. 2d 302 [1991], and Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 137 L. Ed. 2d 718 [1997]); see also Fulminante, 499 U.S. at 309-310 (describing why certain structural errors affect the framework of the trial and thus “defy analysis by ‘harmless-error’ standards”). Both the denial of the right to a public trial and the right to an impartial judge have been categorized as structural errors by the United States Supreme Court, with the Court holding that the right to a public trial and the light to an impartial judge are so central to the trial framework that the denial of these rights would “ ‘infect the entire trial process’ ” and no prejudice need be shown. Neder, 527 U.S. at 8 (quoting Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S. Ct. 1710, 123 L. Ed. 2d 353 [1993]); see Fulminante, 499 U.S. at 310; see also Waller v. Georgia, 467 U.S. 39, 49, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984) (“[T]he defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee.”); Tumey v. Ohio, 273 U.S. 510, 535, 47 S. Ct. 437, 71 L. Ed. 749 (1927) (“No matter what the evidence was against [the defendant], he had tire right to have an impartial judge.”).
Nevertheless, Bolze-Sann has not met an all-important initial threshold—she has not shown that such structural error actually occurred. We have never characterized a district court’s failure to comply with the deliberating juiy procedures provided in K.S.A. 22-3420(3) or later statutes as a violation of the constitutional rights to a public trial or an impartial judge. And Bolze-Sann presents no authority supporting her argument in favor of such an extension of our law. Faced with virtually identical arguments in Verser, 299 Kan. at 791, and Bowen, 299 Kan. at 355-56, we declined to address these arguments; we noted that pressing a point without pertinent authority is akin to failing to brief an issue, which results in a party waiving or abandoning the argument. See State v. Torres, 280 Kan. 309, 331, 121 P.3d 429 (2005). We reach the same conclusion in this case.
Issue 7: Bolze-Sann failed to preserve her jury polling argument.
Bolze-Sanris final argument is that the district court committed reversible error during its postverdict juiy poll by failing to inquire whether the verdict was the jury’s. She acknowledges she did not object to this failure at the time but nonetheless urges us to consider the issue on appeal because it involves a question of law based on undisputed facts and because it implicates her fundamental right to a unanimous jury verdict. See State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010) (reiterating three recognized exceptions to the general rule that constitutional issues cannot be raised for first time on appeal, specifically: “[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.”).
The State, on the other hand, insists that Bolze-Sann’s failure to object means she has not adequately preserved the issue for appeal. We agree. Our past cases have made clear that failing to raise a jury polling issue before the district court, either contemporaneously or in a posttrial motion, precludes appellate review. See State v. Brown, 298 Kan. 1040, 1055-56, 318 P.3d 1005 (2014) (asserted exceptions to the preservation rule do not apply because right to unanimous juiy verdict is not a fundamental right and any consideration of jury unanimity necessarily involves factual review); State v. Cheffen, 297 Kan. 689, 698-99, 303 P.3d 1261, cert. denied 134 S. Ct. 627 (2013) (“[T]he better rule is to require a party wishing to challenge the trial court’s compliance with the procedures set out in K.S.A. 22-3421 for inquiring about a jury’s verdict to have raised that issue first with the district court either in the form of a contemporaneous objection or a posttrial motion.”).
Accordingly, we decline to review Bolze-Sann’s argument.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. | [
80,
-18,
-35,
-66,
26,
97,
58,
24,
99,
-105,
-93,
115,
-81,
-39,
4,
107,
115,
63,
-47,
96,
-45,
-77,
23,
-56,
-42,
-13,
112,
-42,
-78,
72,
-12,
-44,
72,
112,
-118,
117,
-94,
-53,
85,
82,
-126,
12,
-120,
-16,
88,
-126,
36,
47,
22,
10,
49,
30,
-93,
47,
-65,
-53,
11,
46,
88,
61,
8,
-15,
-22,
5,
75,
22,
-78,
-92,
60,
5,
-48,
44,
-98,
49,
8,
-24,
51,
54,
-122,
116,
107,
-119,
-116,
103,
67,
-95,
29,
-27,
-20,
-56,
47,
95,
-115,
-89,
-97,
89,
27,
13,
-73,
-11,
116,
54,
10,
-6,
-25,
-41,
95,
-4,
-128,
-121,
-106,
-111,
-49,
52,
-44,
-72,
-29,
-121,
35,
37,
-52,
36,
92,
69,
90,
-101,
-34,
-106
] |
The opinion of the court was delivered by
Biles, J.:
Raymond C. Swint appeals his convictions of aggravated indecent liberties with a child and attempted aggravated indecent liberties with a child. His principal claim is that the district court erred by excluding evidence that the victim allegedly recruited another child to fabricate other claims of abuse against him. Swint also appeals the hard 25 life sentence imposed under Jessica’s Law, K.S.A. 21-4643, for the aggravated indecent liberties conviction, claiming it violates Section 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. We affirm his convictions and uphold the life sentence.
Factual and Procedural Background
In April 2010, an 11-year-old daughter of Swint’s family friends told a school counselor Swint had been touching her inappropriately. Swint was tried for two counts of aggravated indecent liberties with a child, K.S.A. 21-3504(a)(3)(A), and one count of attempted aggravated indecent liberties with a child, K.S.A. 21-3301 and K.S.A. 21-3504(a)(3)(A).
At trial, the victim testified Swint fondled her genitals on two occasions and described a third incident in which Swint requested she fondle his. Testifying in his own defense, Swint denied these allegations. A jury acquitted Swint of one aggravated indecent liberties charge but convicted him of the remaining aggravated indecent liberties charge and attempted aggravated indecent liberties charge. The district court sentenced Swint to life imprisonment without the possibility of parole for 25 years (hard 25) and lifetime postrelease supervision for the aggravated indecent liberties conviction. It sentenced him to a concurrent term of 155 months’ imprisonment and lifetime postrelease supervision for the attempted aggravated indecent liberties conviction.
Swint timely appealed. A divided Court of Appeals panel affirmed the convictions and affirmed the sentence in part, vacating the lifetime postrelease supervision. State v. Swint, No. 107,516, 2013 WL 6839354 (Kan. App. 2013) (unpublished opinion). This court granted Swint’s timely petition for review. Jurisdiction is proper. See K.S.A. 60-2101(b) (review of Court of Appeals decisions).
Swint advances claims regarding: (1) the district court’ exclusion of certain evidence; (2) insufficient evidence of alternative means of committing the charged crimes; (3) prosecutorial misconduct; and (4) state and federal constitutional challenges to his hard-25 prison sentence. Additional facts will be detailed as pertinent to the issue discussed.
Exclusion of Evidence
Swint argues the district court erred by excluding evidence that the victim allegedly admitted lying about the allegations against him and had asked a cousin to fabricate other claims that he had sexually abused the cousin. We will consider these contentions separately. We ultimately hold that neither issue is preserved for appellate review, each for a different reason.
Additional Facts and Procedural Background
Prior to trial, the State sought an order in limine prohibiting the offering of evidence that the victim “told a cousin, A.H., to fabri cate rumors of inappropriate sexual conduct by defendant.” The State asserted such evidence was “clearly collateral to the facts in issue” and would violate K.S.A. 60-422(d) (evidence of specific instances of conduct relevant only to prove that witness’ character trait inadmissible). Swint opposed the State’s motion, explaining: “The Defendant would show the specific instances of conduct occurred in 2010, where the alleged victim told a close friend or relative to make up a similar story that the Defendant had touched the friend or relative.” (Emphasis added.) Swint argued this was material because it showed “state of mind and motivation to tell the story [the victim] is currently telling,” occurred during the same time frame as the charges against him, and was pertinent to “the relationship of the parties when this event was occurring.”
The court heard arguments on the State’s motion prior to the victim’s trial testimony. During that hearing, defense counsel explained the evidence in issue “would not he used to a specific instance to show she’s a liar, just the relationship of the parties, what [the victim’s] state of mind is and what her motivation is for her telling the story she’s telling today.” (Emphasis added.) In ruling, the district court made clear what evidence it was considering, stating, “It’s an attempt to show that [the victim] was trying to get someone else to potentially lie based on the defense that this is being presented here.” (Emphasis added.) The court further explained:
“We’re not dealing here in this particular case where the victim has made prior accusations against this Defendant or other men. We’re not dealing with prior inconsistent statements or such other types of evidence. We’re dealing with a situation where the victim supposedly told another person to make up a similar story against this Defendant.”
The district court prohibited the defense “from asking the victim questions or presenting other evidence regarding this incident that we’ve talked about.” A continuing objection was entered on the defendant’s behalf.
Following Swint’s convictions, the defense sought to set aside the verdict and have a new trial. In a posttrial hearing, Swint’s counsel indicated the victim’s cousin, A.H., was present to testify about “the statements that were excluded at trial. I need to get those in the record.” But the district court did not permit any testimony, explaining, “I believe you’ve built a sufficient record as a proffer.”
Swint’s counsel then concluded, “I want to make clear that she would testify that—[A.H.] would testify that [the victim] had told her that the Defendant didn’t do this, and that, to her—and, that [the victim] asked [A.H.] to make up a story similar to hers about touching, [A.H.] being touched by the Defendant.” This is the first and only time in the record any suggestion appears about the victim allegedly admitting to lying about her claims against Swint, and there was no follow up to clarify how this additional component to A.H.’s claimed testimony would somehow have been included in the scope of the court’s prior ruling in limine.
On appeal to the Court of Appeals, Swint asserted the district court’s error encompassed the evidence that the victim both admitted falsifying her claims about Swint and asked A.H. to malee up a similar story. And complicating the matter further, Swint also altered the legal basis for the claimed error by relying on State v. Barber, 13 Kan. App. 2d 224, 227, 766 P.2d 1288 (1989) (holding victim in sex crime case may be cross-examined about prior false accusations based on constitutional Confrontation Clause rights despite K.S.A. 60-422[d] restrictions).
The panel unanimously held that Swint failed to preserve tire claim related to the victim admitting to lying about her allegations against Swint. It noted Swint did not raise the admissibility of this alleged admission in the district court until the posttrial hearing. Swint, 2013 WL 6839354, at *6.
But the panel split over whether Swint preserved his claim relating to the evidence about the victim enticing A.H. to make up similar allegations. The panel majority affirmed the exclusion on two grounds: (1) Swint failed to make an adequate proffer of the excluded evidence; and (2) Swint’s appellate arguments relating to the admissibility of this evidence were different from those raised in the district court, i.e., die Confrontation Clause argument. 2013 WL 6839354, at *9.
Judge Patrick D. McAnany dissented. He would have held Swint appropriately summarized the evidence before the trial court ruled on the motion in limine; that the district court believed Swint had made an adequate proffer after trial; and, after refusing A.H.’s testimony, the district court allowed Swint to present another short summary of the expected testimony. 2013 WL 6839354, at *20. Judge McAnany also disagreed that Swint could not raise his Confrontation Clause claim for the first time on appeal, reasoning this was an issue of law that should be resolved to prevent a denial of fundamental rights. 2013 WL 6839354, at *21.
Alleged Prior Inconsistent Statement Not Preserved for Appeal
In his appellate brief and again in his petition for review, Swint asserts:
“Prior to trial, the State filed a motion in limine, asking the district court to keep out evidence that the complaining witness in this case, [the victim], had approached another girl after the allegations in this case, and admitted that she had made up the statements against Mr. Swint and. asked the girl to make up a similar story against Mr. Swint.” (Emphasis added.)
But the italicized portion of this assertion is not supported by the record.
Under K.S.A. 60-405,
“[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appeal's of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers.”
This court has carefully reviewed the State’s pleadings, Swint’s response, the parties’ arguments, and the district court’s statements at the motion in limine hearing. No one claimed the victim had admitted lying about her allegations against Swint. In fact, the district court clearly stated before ruling on the motion in limine, “Were not dealing with prior inconsistent statements or such other types of evidence. We’re dealing with a situation where tire victim supposedly told another person to malee up a similar story against this Defendant.” (Emphasis added.) Obviously, the district court understood the record as we do on review.
The Court of Appeals correctly held that the district court never excluded evidence that die victim supposedly admitted lying about her allegations. The first mention of this claimed evidence was at the posttrial hearing during defense counsel’s argument. The district court could not have committed error because the question about the victim fabricating her allegations was never presented to diat court prior to or during trial, and K.S.A. 60-405 presupposes that a party actually makes known to die district court what evidence is in controversy and subject to exclusion.
Swint Adequately Proffered Evidence About the Victim Asking a Cousin to Lie
Moving to the evidence actually excluded by the district court, we consider first the panel’s split decision about the defense proffer. We disagree with the panel majority in one respect and hold defense counsel made.a sufficient proffer.
A party being limited by the exclusion of evidence must sufficiently proffer the substance of the evidence to preserve die issue on appeal. State v. Hudgins, 301 Kan. 629, 651, 346 P.3d 1062 (2015). In this regard, K.S.A. 60-405 has a dual purpose: (1) It assures the trial court is advised of the evidence at issue and die nature of the parties’ arguments; and (2) it assures an adequate record for appellate review. In re Acquisition of Property by Eminent Domain, 299 Kan. 37, 41, 320 P.3d 955 (2014). When the party fails to provide a sufficient proffer of the substance of the evidence, appellate review is precluded because the appellate court lacks a basis to consider whether the- trial court abused its discretion. Hudgins, 301 Kan. at 651 (citing State v. Evans, 275 Kan. 95, 99-100, 62 P.3d 220 [2003]).
But no formal proffer is required if an adequate record is made in a manner that discloses the evidence sought to be introduced. Answers to discovery, the parties’ arguments, or in-court dialogue may satisfy K.S.A. 60-405 depending on the circumstances. Eminent Domain, 299 Kan. at 42. In considering the adequacy of a proffer made to the trial court, diis court has considered information made known both contemporaneously with the trial court’s ruling and provided after the trial has concluded. See Hudgins, 301 Kan. at 650-51 (sidebar at trial); Evans, 275 Kan. at 98-99 (hearing on motion in limine); Marshall v. Mayflower Transit, Inc., 249 Kan. 620, 622-23, 822 P.2d 591 (1991) (proffer of excluded expert testimony submitted after trial).
In Evans, a murder defendant’s informal proffer sufficiently described the substance of excluded evidence tending to show that a person other than the defendant committed the crime. Evans, 275 Kan. at 101. Counsel told the district court that eyewitnesses would testify this person possessed the murder weapon, a gun, and had the gun in his hand immediately after the fatal shot was fired and that they never saw the defendant with the gun. Counsel also told die district court other witnesses would confirm there was an argument between this person, the victim, and the defendant and that this person would deny his involvement in the shooting. 275 Kan. 97. Notably, nothing in Evans indicates counsel identified the witnesses whose testimony was excluded.
Byway of contrast, in Hudgins, a felony-murder defendant failed to sufficiendy set forth die substance of excluded evidence that a police officer violated department policy during a high-speed pursuit. The defendant proffered “ ‘that the [trial court] accept the policy in the record for review’ ” but did not provide the policy to the district court. Hudgins, 301 Kan. at 650. In holding this proffer insufficient to permit review, this court reasoned: “From the record created by [the defendant], we are not aware what, if any, departmental policy might be in dispute or how that policy may have been violated. As a result, we lack sufficient information to determine whether evidence of the unspecified violation might have been relevant.” Hudgins, 301 Kan. at 651.
The panel majority in Swint’s appeal relied on two cases, People v. Harris, 333 Ill. App. 3d 741, 748, 776 N.E.2d 743 (2002), and State v. Gardner, 264 Kan. 95, 110, 955 P.2d 1199 (1998), to support its conclusion that the alleged evidence lacked foundation and that this underscored the proffer’s “insubstantial basis.” Swint, 2013 WL 6839354, at *8. We do not find these cases persuasive for the proposition advanced by the panel majority.
Harris was a corpus delicti case in which the court held an offender registration officer’s alleged conversation with an uniden tified person from the probation unit was insufficient to corroborate the defendant’s admissions because, lacking the required foundation, evidence of the conversation was not admissible. Harris, 333 Ill. App. 3d at 750-51. And Gardner is distinguishable on its facts because the excluded evidence was of a witness who lived near a murder victim’s house who, shortly after the murder, would have testified that an unknown male followed her home from a bus stop and said the words “ ‘repeat the killing.’ ” 264 Kan. at 108. The court held the trial court was within its discretion to rule the statement lacked adequate foundation, reasoning the witness did not know who the man was, what date this occurred, or what the man looked like; only heard part of what the man said; and was not even clear what it was meant to communicate. Gardner, 264 Kan. at 110.
But unlike the ambiguous “ ‘repeat the killing’ ” comment in Gardner, 264 Kan. at 108, context is not at issue here. If true, Swint’s proffered evidence clearly has some bearing on the victim’s credibility. Additionally, as Judge McAnany noted, a foundation objection was specifically raised and ruled on in Gardner. In Swint’s case the State advanced no such argument, confining its challenge to the evidence’s admissibility under K.S.A. 60-422.
We hold that the motions, arguments, and in-court discussions adequately advised the trial court what Swint sought to introduce as evidence regarding the victim allegedly asking her cousin to falsify similar ¿legations of sexual abuse against Swint. Defense counsel told the trial court A.H. would testify the victim asked her to “make up a story similar to hers about. . . being touched by the Defendant.” And unlike Hudgins, in which the insufficient proffer wholly omitted the content of the excluded police department policy, the district court in this case was aware of the precise content of tire testimony. Even more to the point, the district court declared itself satisfied with the defense proffer during the posttrial motions when A.H. was present and prepared to offer her testimony. The defense proffer was adequate to allow us to analyze the claim’s merits.
Constitutional Issue Not Preserved
Our analysis faces another potential obstacle, however. As the panel discussed, S winds constitutional claim is raised for the first time on appeal. Swint, 2013 WL 6839354, at *9. In tire district court, Swint asserted that the excluded testimony about the victim asking her cousin to lie was not subject to the exclusionary provisions of K.S.A. 60-422(d) because he would not use the evidence for a purpose prohibited by that statute. Instead, he argued it would establish the victim’s “state of mind and motivation to tell the story she is currently telling.” On appeal, Swint advances a new theory that the district court erred by failing to recognize and employ a constitutionally based exception to K.S.A. 60-422(d) in sex crime cases, relying on Barber, 13 Kan. App. 2d at 226-27.
“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. Tague, 296 Kan. 993, 998, 298 P.3d 273 (2013) (citing State v. Chanthaseng, 293 Kan. 140, 144, 261 P.3d 889 [2011]). Parties generally may not raise constitutional issues for the first time on appeal. State v. Plotner, 290 Kan. 774, 782, 235 P.3d 417 (2010).
Three exceptions have been recognized to this general rule. Generally, constitutional issues cannot be asserted for the first time on appeal unless: (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; or (3) the party raising the issue asserts that the district court is right for the wrong reason. Tague, 296 Kan. at 1000. But to comply with Kansas Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40), litigants relying on these exceptions need to “[explain] why an issue is properly before the court if it was not raised below—or risk a ruling that an issue improperly briefed will be deemed waived or abandoned.” State v. Williams, 298 Kan. 1075, 1085-86, 319 P.3d 528 (2014); see also State v. Godfrey, 301 Kan. 1041, Syl., 350 P.3d 1068 (2015) (Failure to satisfy Rule 6.02(a) (5)’s require ment to affirmatively invoke and argue an exception amounts to abandonment of the constitutional claim.).
Compounding the preservation problem, Swint’s petition for review fails to advance any substantive reason why the panel majority erred in holding that Swint’s appellate arguments constituted an abandonment of his arguments made to the district court and its refusal to take on the constitutional Confrontation Clause claim. See Supreme Court Rule 8.03(a)(4)(C) (2014 Kan. Ct. R. Annot. 78) (“The court will not consider issues not presented or fairly included in die petition [for review]”). Swint simply makes a passing reference to Judge McAnany’s dissent and then essentially duplicates his appellate briefing to the Court of Appeals as to why the district court erred—instead of identifying the panel majority’s error. This failure is especially egregious because taking up this new constitutional claim for the first time would require an appellate court to consider the issue without the trial court having made Barber’s threshold predicate finding that “a reasonable probability of falsity exists” regarding the alleged victim’s prior accusation. Barber, 13 Kan. App. 2d at 226. The panel majority noted this concern in declining to take up the constitutional claim, but Swint’s petition for review does not address why it is wrong.
We affirm the panel majority’s decision not to consider this issue for tire first time on appeal. The preservation problem means we do not reach the merits of the claim.
Alternative Means
Swint’s next challenge to his convictions is that the phrase “with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both” in the aggravated indecent liberties statute, K.S.A. 21-3504(a)(3)(A), creates alternative means of committing these crimes and that the State only presented evidence Swint intended to satisfy his own sexual desires. But this contention has already been decided against Swint.
As we have previously held, the quoted language in K.S.A. 21-3504(a)(3)(A) does not create an alternative means crime. State v. Britt, 295 Kan. 1018, 1026, 287 P.3d 905 (2012) (phrase “ either the child or tire offender, or both’ ” does not state material element of crime; merely describes potential yet incidental objects of the offender s required intent, and outlines options within a means, describing factual circumstances that may prove the distinct, material mental state element of tire crime). Accordingly, Swint’s argument fails.
Prosecutorial Misconduct
Swint next argues the prosecutor committed reversible misconduct during closing arguments by improperly bolstering the victim’s credibility and appealing to jurors’ sympathy for her. The panel held one comment was an impermissible attempt to engender sympathy when the prosecutor said, “ ‘Today, you have the power to say to [tire victim], “We believe you.” ’ ” Swint, 2013 WL 6839354, at *14-15. The State has not challenged that holding. On review, Swint continues to argue this misconduct, coupled with an additional statement the panel held was appropriate, constitute reversible misconduct. We disagree and affirm the panel’s holding that there was error but the error was harmless.
Standard of Review
Appellate review of a prosecutorial misconduct claim based on improper comments requires a two-step analysis. First, an appellate court decides whether the comments at issue were outside the wide latitude a prosecutor is allowed, e.g., when discussing evidence. If so, there was misconduct. Second, if misconduct is found, an appellate court determines whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013).
Appellate courts consider three factors in analyzing the second step: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the jurors’ minds. But none of these factors individually controls; and before the third factor can override the first two, an appellate court must be able to say the harmlessness tests of both K.S.A. 2014 Supp. 60-261 and Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), have been met. State v. McCullough, 293 Kan. 970, 990-91, 270 P.3d 1142 (2012).
When both constitutional and nonconstitutional errors clearly arise from the same acts and omissions, an appellate court begins with a harmlessness analysis of the constitutional error. If the constitutional error is reversible, an appellate court need not analyze whether the lower standard for harmlessness under K.S.A. 2014 Supp. 60-261 also has been met. Bridges, 297 Kan. 989, Syl. ¶ 16. Under both standards, the party benefiting from the error bears the burden to demonstrate harmlessness. State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013).
Discussion
The first statement in contention occurred when the prosecutor discussed the attempted aggravated liberties charge, arguing:
“Instruction Number eight, this is count Number three, this is the attempted charge. This is the count that [the victim] had trouble remembering. This is the count that [the victim] had trouble describing to a room full of strangers. Nevertheless, we did hear evidence about it. We watched the interview. And, in that Meadowlark interview she says drat, again, she was alone witír [Swint], Again, she was sitting on Iris lap. She said that while she was sitting on his lap, he grabbed her hand and he began pulling it toward his penis. [The victim] told you that while he was doing dris, he said, ‘Touch mine, it will make me feel better.’ [The victim] responded to that by saying, T said no.’
“THE COURT: It’s your tíme.
“[THE PROSECUTOR]: Ladies and gentlemen, there is no reason why a little girl would know that touching an adult male’s penis would make him feel better. There is no reason tohy she would make that up.” (Emphasis added.)
Swint contends no evidence showed the victim did not understand how an adult male might feel and that the victim could have learned this from television, music, parental discussion, or sex education. Building on this, Swint argues the prosecutor s credibility argument was not grounded in evidence. The State counters that there was no evidence the victim was exposed to such materials, so it was reasonable to infer she learned this from Swint saying it. The State further contends: “[I]llustrating reasons in favor of a witness’ credibility is not bolstering.” The panel concluded the prosecutor’s remark was not misconduct. Swint, 2013 WL 6839354, at *14.
Prosecutors must confine their comments to the evidence adduced at trial and reasonable inferences drawn from that evidence. State v. King, 288 Kan. 333, 351, 204 P.3d 585 (2009). When a prosecutor argues facts not in evidence, misconduct is committed. State v. Akins, 298 Kan. 592, 601, 315 P.3d 868 (2014). A prosecutor generally exceeds the proper bounds of argument by offering a personal opinion about witness credibility “because such comments are ‘unsworn, unchecked testimony, not commentary on the evidence of the case.’ ” State v. Duong, 292 Kan. 824, 830, 257 P.3d 309 (2011).
In this instance, the statement was proper. The prosecutor did not offer an opinion about the credibility of young children generally or even the victim specifically. Instead, the prosecutor asked the juiy to infer, based on the victim’s age, that she could not have known the details she gave in her interview unless her testimony was true.
In the second statement, the prosecutor argued:
“Finally, ladies and gentlemen, remember what [the victim] has said over and over about why she did not tell anyone about this until she spoke to [a school counselor]. Remember that she said that she was scared no one would believe her.
“Today, you have the power to say to her, ‘We believe you.’ You have the power to convict Raymond Swint for the crimes that he committed. Thank you.”
We accept the panel’s conclusion that this statement was improper. Swint, 2013 WL 6839354, at *15. The State has not challenged that determination on review.
The remaining question is whether this misconduct requires reversal, i.e., “whether the improper comments prejudiced the jury and denied the defendant a fair trial.” Bridges, 297 Kan. at 1012. We examine whether the misconduct was gross and flagrant or motivated by ill will and whether the evidence was so overwhelming that the improper comment would have little weight in the jurors’ minds. 297 Kan. at 1012. The panel held this statement was not gross and flagrant, reasoning that it was brief, not repeated, and followed by the prosecutor s admonition that the jury had the power to convict Swint, which, in the panel’s view, “refocused the jury’s attention on the task at hand and mitigated the suggestion that the jury had the power to tell [the victim] that it believed her testimony.” Swint, 2013 WL 6839354, at *15.
We take a different view given that the prosecutor violated a longstanding rule against appealing to juror sympathies. See, e.g., State v. Adams, 292 Kan. 60, 67-68, 253 P.3d 5 (2011) (In a decision issued before Swint’s trial, this court held it was improper to argue the trial was “ ‘[t]he only chance [the victim] will ever have to have someone held accountable for taking his life. So this day is as much about him if not more than anyone else.’ ”); State v. Tosh, 278 Kan. 83, 92, 91 P.3d 1204 (2004) (improper to tell jury, “ ‘You can protect her. You can find him guilty.’ ”). In addition, we disagree with the panel’s assessment that the prosecutor refocused the juiy’s attention on its proper role when he said the jury had the power to convict Swint because it misreads the context of that statement. This statement equated convicting Swint with the jury telling the victim it believed her. This did not abate the improper effects of the misconduct—it was part of the misconduct.
The next factor considers whether the prosecutor was motivated by ill will. In this regard, a court considers whether the misconduct was deliberate, repeated, or in apparent indifference to a court ruling. Bridges, 297 Kan. at 1016. The panel held there was no ill will because the prosecutor did not persist with the statement or show indifference to a court admonishment to cease. Swint, 2013 WL 6839354, at *16. We agree. There was only one instance of misconduct; the prosecutor did not act indifferently to court rulings; and there is no suggestion the prosecutor mocked Swint in making the statement.
Finally, we consider whether the evidence was so direct and overwhelming that the improper comment would have had little weight in the jurors’ minds. The State bears the burden of demonstrating harmless error. Akins, 298 Kan. at 612. To satisfy its burden, the State must convince the court, beyond a reasonable doubt, that there is no reasonable possibility the misconduct affected the jury’s verdict. 298 Kan. at 614. The panel held the im proper conduct was harmless, noting it was brief and that there was substantial evidence of Swint’s guilt. Swint, 2013 WL 6839354, at *16.
We agree. The evidence in this case was not overwhelming because it hinged entirely on the credibility of the victim’s testimony; but it was nonetheless direct evidence supporting the jury’s guilty verdicts. Considering the lack of prosecutorial ill -will and the misconduct’s brevity, we conclude tire State has satisfied its burden of demonstrating there is no reasonable possibility the misconduct affected tire trial’s outcome in light of the entire record.
Cruel and/or Unusual Punishment
Prior to sentencing, Swint moved the district court to declare the hard 25 life sentence he faced unconstitutional under the state and federal constitutions. After hearing arguments, the court made findings of fact and conclusions of law and denied Swint’s motion. The panel affirmed regarding the § 9 claim, relying heavily on this court’s decisions in Britt and State v. Woodard, 294 Kan. 717, 280 P.3d 203 (2012). Swint, 2013 WL 6839354, at “17-18. But the panel also concluded that Swint waived or abandoned his Eighth Amendment claim by briefing his state and federal claims together and not explaining “how Eighth Amendment law might differ in his case from the Section 9 analysis . . . .” 2013 WL 6839354, at *16. We consider the § 9 challenge first.
Swint’s sentence does not violate § 9.
Whether a sentence is cruel or unusual in violation of § 9 encompasses both legal and factual determinations. State v. Mossman, 294 Kan. 901, 906, 281 P.3d 153 (2012) (citing State v. Ortega-Cadelan, 287 Kan. 157, 160, 194 P.3d 1195 [2008]). On appeal, a district court’s factual findings are reviewed for substantial competent evidence. An appellate court reviews, but does not reweigh, the evidence. The legal conclusions drawn from the factual findings are reviewed de novo. 294 Kan. at 906.
The State may not inflict cruel or unusual punishment upon persons convicted of crimes. Kan. Const. Bill of Rights, § 9. This prohibition includes within its scope punishment that, “although not cruel or unusual in its method, ... 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. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978); see also State v. Gomez, 290 Kan. 858, Syl. ¶ 9, 235 P.3d 1203 (2010). To determine whether a sentence’s length is unconstitutionally disproportionate under § 9, Kansas courts consider three factors commonly known as the Freeman factors:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are tire facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury 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 tlrem 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.” Freeman, 223 Kan. at 367.
First Freeman factor
In addressing the first factor, the district court stated:
“One could argue, as the Defendant appears to in this case, that the nature of the present offense was questionable. However, a jury of 12 people heard both the Defendant and the victim’s version of these events. The jury unanimously convicted Mr. Swint of tírese two separate counts.
“The court has found that the evidence was sufficient to sustain these two convictions. Therefore, the Defendant’s argument to this Court, in this Court’s mind, lacks merit and goes against die Defendant.
“Some might argue that the facts of this case support that the nature of the offense was nonviolent since there was no physical harm resulting to die victim, and no weapons were used as die evidence shows.
“However, this bebes the psychological and emotional trauma inflicted on young victims. The extent of this type of harm may not be known for years. This type of harm is recognized as a type that should be considered when punishing an offense.
"Further, tiiis Court found that die Kansas legislature has defined die Defendant’s crimes as sexually violent, 21-4642. It’s also been defined as a crime of extreme sexual violence in 21-4716, which was in effect at the time these crimes were committed. It’s also, I believe, been defined as a sexually violent crime in 22-4902. So, in various Kansas statutes, our legislature has defined attempts and aggravated indecent liberties and attempted aggravated indecent liberties as sexually violent crimes.
“In looking at this particular Defendant, this Court sees a man who is in his late 40’s to early 50’s at the time of these offenses for which he has been convicted. The defendant has no scorable prior criminal history. He has a good work history as documented by his employer [who testified in support of a motion to depart], and is, apparently, a valid employee, again according to Mr. Unruh.
“In looking at his character in regard to the degree of danger present to society, this Court finds that the evidence that it has before it supports a finding that there is a high degree of danger presented to society and a real likelihood that this Defendant would and could repeat his activity.
“Here, the acts the Defendant was convicted of had happened at different times over an extended period of time.
“The Defendant’s testimony at trial supports a finding that he is around children in his home. And, further, he has accepted no responsibility for his action and has shown no remorse for these actions.
“Therefore, this particular factor, number one, weighs in favor of tire constitutionality of tire law.”
On appeal, Swint maintains his crime did not involve physical violence and that he is innocent and was convicted based on the victim’s uncorroborated testimony. As to his own character, Swint argues his crime was not committed against a random victim but instead was a crime of opportunity; he has no significant criminal history and no prior history of sex offenses; he has never had an opportunity for treatment; and he has a low risk of recidivism.
The district court’s analysis of Swint’s argument that his crime is nonviolent squares with this court’s numerous prior cases rejecting the same argument. See State v. Spear, 297 Kan. 780, 800, 304 P.3d 1246 (2013); Mossman, 294 Kan. at 909-10; Woodard, 294 Kan. at 727. And although this court has yet to address whether the quality of evidence is relevant in this context, it is logically inconsistent to consider the defendant’s possible innocence when analyzing proportionality of a criminal sentence because the determination of guilt was for the finder of fact. It also does not appear this court has addressed a defendant’s lack of remorse in a Freeman case, but this court has approved lack of remorse as appropriate for consideration in criminal sentences in cases prior to the comprehensive sentencing guidelines. See State v. Hemby, 264 Kan. 542, 553, 957 P.2d 428 (1998).
We also do not see how Swint’s argument that his was merely a crime of opportunity weighs in his favor. The district court pointed out that, as a grandfather figure, Swint abused a position of trust in tire victim’s life. In Spear, in which a man committed aggravated indecent liberties against his niece, the court similarly reasoned that the defendant’s position of trust as a family relative tended to demonstrate that the life sentence imposed was not cruel or unusual. Spear, 297 Kan. at 800. The Spear court also noted the defendant, like Swint, breached this trust on more than one occasion. 297 Kan. at 800.
Finally, Swint’s argument about his supposedly low risk of recidivism is without merit. Kansas cases recognize “there are ‘grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is “frightening and high.” ’ ” Mossman, 294 Kan. at 909-10. Also importantly, Swint presented no evidence countering the district court’s determination that there was “a high degree of danger presented to society and a real likelihood that [Swint] would and could repeat his activity.” The court found this conclusion was supported by Swint’s presence around children in his home and the fact he had not accepted responsibility for his crime or shown remorse.
We hold the district court appropriately concluded this first Freeman factor weighs against Swint. Although Swint lacks a significant criminal history, his crime was a sexually violent offense. To commit it, Swint abused his position of trust as a family friend and grandfather-figure. Moreover, despite his contention that he is unlikely to reoffend, as the district court noted, this case involves multiple offenses.
Second Freeman factor
The second Freeman factor directs the court to compare the punishment for Swint’s offense with those imposed in Kansas for more serious offenses. See Mossman, 294 Kan. at 912. If that review reveals more serious crimes are punished less severely than Swint’s offense, “the challenged penalty is to that extent suspect.” Freeman, 223 Kan. at 367. The court considers whether the sen tence imposed is grossly disproportionate in relation to the sentence for the more serious offense, considering the penological purposes of the sentence under review, the seriousness of defendant’s crime, and other considerations under the first Freeman factor. See Mossman, 294 Kan. at 917.
The district court ruled the second factor weighed against Swint, as did the Court of Appeals. Swint, 2013 WL 6839354, at *18. Swint argues, as he did before the district court, that the penalty for his crime is suspect because it is more severe than the penalty for second-degree murder, which Swint contends is a more serious offense. But this court has rejected this comparison to homicide crimes in aggravated indecent liberties cases. See Spear, 297 Kan. at 801-02; Woodard, 294 Kan. at 723-24. And Swint presents no new arguments to reexamine these conclusions. Accordingly, this factor does not weigh in Swint’s favor.
Third Freeman factor
Finally, we compare the challenged punishment with punishments in other jurisdictions for the same offense. Swint argues this comparison demonstrates the disproportionality of his sentence because Kansas is one of only five states prescribing a life sentence with a minimum term before parole eligibility for first-time child sex offenders. We note Swint also represents to us that 18 states would sentence a person convicted of those jurisdictions’ equivalent crimes to a definite term of imprisonment, widi the mandatory minimum term being 25 years.
Curiously, instead of countering Swint’s extensive review of state penalties for sex crimes, the State simply cites to and relies on this court’s analysis in Woodard. In that case, the court held this factor weighed against a defendant based upon the court’s review of cases in other jurisdictions upholding sentences “not out of proportion” with Kansas’ sentence for aggravated indecent liberties. See Woodard, 294 Kan. at 724-25.
But the State’s shallow response to Swint’s argument on this third Freeman factor raises a complication that favors Swint. In State v. Newcomb, 296 Kan. 1012, 1020, 298 P.3d 285 (2013), this court noted the State had failed to “respond direcdy to [the de fendant's] specific contentions and citations about aggravated indecent liberties.” The court held the State’s “casual approach" to the issue compelled it to accept for purposes of the argument the 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. 296 Kan. at 1020-21.
Similarly, Swint’s specific and detailed argument is essentially unchallenged—although the State’s response here cannot be viewed as so “cavalier” as the response in Newcomb. Based on Swint’s unchallenged assertion about the small number of states imposing life sentences for crimes like his, we deem this factor to weigh in his favor—though not heavily so, given the large number of other states imposing lengthy prison sentences for Swint’s crime.
Weighing all three factors
When all three factors are balanced against one another, we hold that Swint’s hard 25 life sentence is not so disproportionate to his crime that it shocks the conscience or offends fundamental notions of human dignity. In short, the relative severity of Swint’s punishment as compared to the punishments for the same crime in other jurisdictions does not convince us Swint’s sentence is unconstitutional when weighed against the nature of Swint’s crime, Swint’s character, and the proportionality of his sentence with sentences for other Kansas crimes. Swint’s hard 25 life sentence does not violate § 9.
Swint’s sentence does not violate the Eighth Amendment.
The panel held Swint waived or abandoned his Eighth Amendment proportionality argument. Swint, 2013 WL 6839354, at *16. We consider that ruling first.
Preservation
To preserve an issue for appellate review, it must be more than incidentally raised in an appellate brief; it must be accompanied by argument and supported by pertinent authority or an explanation why the argument is sound despite the lack of authority or existence of contrary authority. Gomez, 290 Kan. at 866. In Swint’s case, the panel held that he had failed to preserve his Eighth Amendment challenge because he did not brief how Eighth Amendment law might differ in his case from the § 9 analysis. Swint, 2013 WL 6839354, at *16.
We read Swinf s brief as attempting to simultaneously make both his state and federal constitutional arguments in an effort to demonstrate they are controlled by the same or similar analytical framework. And Swint supports his Eighth Amendment claim with federal caselaw, which he cites in tandem with Kansas cases while addressing the factors he believes control both state and federal claims. Swinds argument may not prevail, as discussed below, but his brief contains more than a mere passing reference to the Eighth Amendment. We hold this issue is adequately presented for appellate review.
Discussion
“The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution’s ban on cruel and unusual punishments is the 'precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’ ” Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (quoting Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 544, 54 L. Ed. 793 [1910]). Proportionality claims under the Eighth Amendment fall into two general categories (1) challenges to the length of term-of-years sentences under the circumstances of a particular case; and (2) challenges involving categorical restrictions on certain sentencing practices. See Graham, 560 U.S. at 59; State v. Williams, 298 Kan. 1075, 1084, 319 P.3d 528 (2014) (discussing Graham). This case involves the former.
“When conducting an Eighth Amendment analysis to determine whether a term-of-years sentence is grossly disproportionate for a particular defendant’s crime, a court begins by comparing the gravity of the offense and the severity of the sentence. This analysis may consider a particular offender’s mental state and motive in committing the crime, the actual harm caused to the victim or to society by the offender’s conduct, any prior criminal history, and a particular offender’s propensity for violence. In tire rare case in which this threshold comparison leads to an inference of gross disproportionality, the court should then compare the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. If this comparative analysis validates an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and unusual. [Citation omitted.]” Woodard, 294 Kan. at 720-21.
As to the “threshold comparison” of the gravity of the offense and harshness of the penalty, an inference of gross disproportion-ality will be raised only in rare cases. Mossman, 294 Kan. at 923. State legislatures have “considerable latitude” in making policy decisions regarding the severity of criminal sentences. 294 Kan. at 923. The rareness of cases in which sentences appear grossly disproportionate
“is illustrated by a series of cases in which the Court held a life sentence for a nonviolent theft or drug crime was not cruel and unusual punishment. E.g., Lockyer v. Andrade, 538 U.S. 63, 70, 77, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003) (sentence of two consecutive prison terms of 25 years-to-life for third-strike conviction for stealing approximately $150 in videotapes); Ewing [v. California], 538 U.S. [11,] 28-31[, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003)] (25 years-to-life sentence under three-strike provision for stealing approximately $1,200 of merchandise); Harmelin [v. Michigan], 501 U.S. [957,] 961, 996[, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991)] (life sentence without possibility of parole for first felony offense, which was possession of more than 650 grams of cocaine); Rummel v. Estelle, 445 U.S. 263, 266, 285, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980) (life sentence with possibility of parole, imposed under a Texas recidivist statute, for a defendant convicted of obtaining $120.75 by false pretenses [his third felony conviction], an offense normally punishable by imprisonment for 2 to 10 years); but see Solem [v. Helm], 463 U.S. [277,] 296-97, 303[, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983)] (life sentence without possibility of parole imposed on adult offender was ‘significantly disproportionate’ to the defendant’s crime, which was predicated on a current offense of ‘uttering a “no account” check’ for $100 and the defendant’s lengthy criminal history that included seven nonviolent felonies).” Mossman, 294 Kan. at 923.
And this court has further noted,
“A statement made by Justice Kennedy in his concurring opinion in Harmelin provides insight into the Court’s view of the policy judgment inherent in a proportionality decision. He noted: ‘[A] rational basis exists for Michigan to conclude the petitioner’s crime [of possessing a large quantity of cocaine] is as serious and violent as the crime of felony murder without specific intent to kill, a crime for which “no sentence of imprisonment would be disproportionate.” [Citation omitted.]’ Harmelin, 501 U.S. at 1004 (Kennedy, J., concurring). For purposes of our analysis, it is reasonable to substitute aggravated indecent liberties with a child as the crime referred to in that statement because the Supreme Court has observed that sex offenders represent a particularly serious threat in this country given that they are more likely than any other criminals to commit violent crimes following their release from prison. McKune v. Lile, 536 U.S. 24, 32-33, 122 S. Ct. 2017, 153 L. Ed. 2d 47 (2002).” Mossman, 294 Kan. at 923-24.
Swint’s sentence is not grossly disproportionate to his crime given the court’s suggestion in Mossman that no term of imprisonment might be grossly disproportionate to the crime of aggravated indecent liberties for Eighth Amendment proportionality purposes; the “particularly serious threat” sex offenders pose to society; and Swint’s conduct in this particular case—taking advantage of a position of trust in the victim’s life to commit more than one sexually violent crime against her. Swint’s Eighth Amendment challenge must fail.
On the issues subject to our review, the judgment of the Court of Appeals, affirming in part and vacating in part the judgment of the district court, is affirmed. | [
-112,
-22,
-3,
-1,
14,
99,
58,
-104,
18,
-73,
-90,
81,
-119,
-56,
5,
123,
-37,
37,
80,
97,
-37,
-73,
7,
-63,
-110,
-5,
-72,
-36,
-77,
91,
-18,
-99,
8,
113,
74,
-43,
6,
-54,
103,
84,
-114,
3,
-88,
-8,
19,
3,
42,
107,
2,
15,
49,
62,
-77,
42,
30,
-61,
41,
60,
91,
-19,
15,
-77,
-6,
-105,
90,
48,
-93,
34,
-68,
7,
-16,
46,
-104,
57,
32,
-20,
123,
-90,
2,
116,
111,
-119,
-87,
-26,
99,
32,
44,
-26,
-68,
-119,
63,
123,
-83,
-122,
-102,
121,
104,
68,
-66,
-97,
100,
22,
43,
-8,
-29,
70,
54,
100,
-126,
-117,
-124,
-111,
79,
57,
22,
48,
-13,
5,
16,
101,
-57,
-92,
76,
-41,
122,
-109,
-82,
-74
] |
The opinion of the court was delivered by
Johnson, J.:
Robert Blake Dumler challenges the administrative suspension of his driving privileges based on driving under the influence of alcohol. Dumler contends he was denied his statutory right under K.S.A. 2009 Supp. 8-1001(k)(10) to consult with an attorney after he completed a breath alcohol test. The district court and Court of Appeals affirmed Dumler s administrative suspension after concluding that his pre-test request for counsel was insufficient to invoke his statutory right. We granted Dumler s petition for review and now hold that there is no bright-line rule requiring a person to invoke his or her statutory right to counsel after the completion of breath or blood alcohol testing, so long as the request pertained to post-testing consultation. We remand to the district court to apply the standard we set forth in this opinion.
Factual and Procedural Overview
The facts relevant to Dumler s issue on appeal were established at a de novo hearing in the district court and are not in material dispute. On April 17, 2010, a law enforcement officer stopped Dumler for committing a traffic violation, which led to his arrest for driving under the influence (DUI). The officer transported Dumler to the sheriff s office and provided Dumler with the implied consent notices under K.S.A. 2009 Supp. 8-1001(k)(1) through (10), before requesting that he submit to a breath alcohol test. One of the implied consent notices informed Dumler that he had the right, after the completion of testing, to consult with an attorney and secure additional testing. The officer also read Dum-ler his Miranda rights, which, of course, include the right to an attorney.
The Court of Appeals opinion related that “[o]n several occasions before the breath test was administered Dumler requested that he be permitted to confer with an attorney,” with the last request coming after the oral and written implied consent advisories and the Miranda warnings. Dumler v. Kansas Dept. of Revenue, No. 106,748, 2012 WL 4679128, at *1 (Kan. App. 2012) (unpublished opinion), rev. granted 298 Kan. 1201 (2014). The arresting officer acknowledged that he never gave Dumler an opportunity to confer with an attorney. Dumler did not repeat his request for an attorney or request additional testing after his breath test failure. The arresting officer provided Dumler with an officer’s certification and notice of suspension of driving privileges and apparently placed him in a holding cell, where he remained for an hour or so before posting bond and being released.
Dumler made a timely request to the Kansas Department of Revenue (KDR) for an administrative hearing where he argued that his statutory right to counsel was violated. After the KDR hearing officer affirmed Dumler’s suspension, he petitioned the district court for review. The Court of Appeals described the district court’s disposition as follows:
“The district court found that although the better practice would have been to allow Dumler access to an attorney after the breath test was completed, suspension of his driving privileges should be upheld because the arresting officer complied with paragraph 9 of the implied consent advisories [enumerating statutory right to counsel] and Dumler did not ask to speak with an attorney after the breath test failure.” Dumler, 2012 WL 4679128, at *1.
The Court of Appeals majority affirmed the district court based on the timing of Dumler’s requests to consult with an attorney. Because Dumler did not ask to consult with an attorney after he failed the breath test, he had not invoked his statutory right to an attorney and, accordingly, that right was not violated. Dumler, 2012 WL 4679128, at *3.
Judge Atcheson disagreed with the majority’s bright-line rule that a driver can invoke the statutory right to an attorney only after completion of the alcohol testing because the statute simply does not contain that restriction. 2012 WL 4679128, at *3 (Atcheson, J., concurring). Nevertheless, Judge Atcheson concurred in the result because of his belief that the governing statutes provide no remedy for violation of the statutory right to counsel. 2012 WL 4679128, at *5 (Atcheson, J., concurring).
Dumler timely petitioned this court for review.
Statutory Right to Counsel
Under Kansas’ Implied Consent Law, “[a]ny person who operates ... a vehicle within this state is deemed to have given consent, subject to the provisions of this act, 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. 2009 Supp. 8-1001(a). But the statute provides that a “person shall be given” certain mandatory notices before a law enforcement officer administers such a test. See K.S.A. 2009 Supp. 8-1001(k); Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 212-13, 755 P.2d 1337 (1988) (holding notices required before DUI arrestee must submit to a breath test are mandatoiy).
The notices advise, inter alia, that “there is no constitutional right to consult with an attorney regarding whether to submit to testing.” K.S.A. 2009 Supp. 8-1001(k)(3). But the notices also provide that “after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities willing to conduct such testing.” (Emphasis added.) K.S.A. 2009 Supp. 8-1001(k)(10). Dumler asserts he was denied the subsection (k)(10) post-testing right to consult with an attorney.
Scope of Review
Our first consideration is whether Dumler s issue is one that can be raised in the proceeding before us. We have held that K.S.A. 2009 Supp. 8-1020(h) “circumscribes the scope of an administrative hearing on a driver’s license suspension, setting forth an exclusive list of issues that may be addressed.” Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 875, 281 P.3d 135 (2012).
Where, as here, the officer certifies that the person failed a breath test, the scope of the hearing includes the issue of whether “the test result determined that the person had an alcohol concentration of .08 or greater in such person’s breath.” K.S.A. 2009 Supp. 8-1020(h)(2)(G). A driver must be permitted the opportunity of challenging the efficacy of the State’s evidence on this issue. Accordingly, the denial of the driver’s statutory right to consult with an attorney about procuring an additional test is germane to the inquiry under subsection (h)(2)(G). The relevance of this opportunity is reinforced by K.S.A. 8-1004, which provides:
“Without limiting or affecting the provisions of K.S.A. 8-1001 . . . the person tested shall have a reasonable opportunity to have an additional test by a physician of the person’s own choosing. In case the officer refuses to permit such additional testing, the testing administered pursuant to K.S.A. 8-1001. . . shall not be competent in evidence.”
If a test is not competent evidence, it cannot be used to determine whether die person “had an alcohol concentration of .08 or greater” under K.S.A. 2009 Supp. 8-1020(h)(2)(G). Accordingly, we hold that the denial of a driver’s statutory right to consult wi& an attorney after alcohol testing is an appropriate issue to be addressed at a driver’s license suspension administrative hearing. Because the issue is within the scope of the administrative hearing, it is likewise within our scope of review. Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 17, 290 P.3d 555 (2012) (holding issues within scope of administrative hearing are “within the reviewing court’s purview”). Therefore, we will proceed to the merits of Dumler’s argument.
Standard of Review
Because the material facts are undisputed, resolution of the issue before us hinges upon our interpretation of the Implied Consent Law, K.S.A. 2009 Supp. 8-1001 et seq. Statutory interpretation is a question of law subject to unlimited to review. See, e.g., Milano’s, Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 500, 293 P.3d 707 (2013).
When a person must invoke the statutory right to counsel
We begin by considering the timing of the request, i.e., when a person must invoke the statutory right to counsel. Dumler asserts that a pre-test request for counsel is sufficient to invoke the statutory right and, therefore, it was irrelevant that he did not repeat his request for counsel after he failed the breath test. He relies on State v. Kelly, 14 Kan. App. 2d 182, 191-92, 786 P.2d 623 (1990), and State v. Lynch, No. 85,915 (Kan. App. 2001) (unpublished opinion).
In Kelly, a panel of the Court of Appeals held that Kelly s statutory right to consult with counsel under the Implied Consent Law was violated. 14 Kan. App. 2d at 190. In that case, however, the driver had requested an attorney both before and after completing a breath test. Lynch, on the other hand, is factually similar with respect to the timing of the request for counsel. Lynch requested counsel before he took his breath test, but then he did not renew the request after testing. The Lynch panel held “[t]he fact that Lynch requested counsel before, rather than after, the test was administered is of no moment. His right to counsel attached immediately after completing the test, and he previously expressed his desire to exercise that right.” Slip op. at 4.
Here, the panel majority rejected Dumleris reliance on Lynch in favor of the interpretation of the statutoiy right to counsel expressed in State v. Tedder, 38 Kan. App. 2d 141, 142-43, 163 P.3d 311 (2007). As in this case, Tedder had asked to speak with an attorney before completing a breath test but then did not ask again after completing the test. The Tedder panel opined that “a request for counsel must be made after completion of the breath test before there can be a violation of the defendant’s statutory right to confer with an attorney.” 38 Kan. App. 2d at 142-43. Based on that reasoning, the majority below held drat because Dumler did not reiterate his request for counsel post-testing, his statutory right to counsel was not violated. Dumler, 2012 WL 4679128, at *2-3.
As in the Lynch opinion, Judge Atcheson’s concurrence pointed out that a bright-line timing rule cannot be found in the plain language of the statute. See In re Tax Appeal of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013) (“[I]n reviewing a statute that is plain and unambiguous we will not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it.”). The concurrence further opined that the only statutory restriction on the right to counsel involves “when the person may actually communicate with a lawyer.” Dumler, 2012 WL 4679128, at *3 (Atcheson, J., concurring). We agree. The advisory required under K.S.A. 2009 Supp. 8-1001(k)(10) states that the consultation right accrues “after the completion of the testing.” But it does not say that a request to invoke that right of consultation must await tire completion of testing.
Moreover, the plain language of the advisory tells the person that, after testing, he or she “has the right to consult with an attorney.” (Emphasis added.) K.S.A. 2009 Supp. 8-1001(k)(10). The right is stated affirmatively and is not conditioned upon the person making a post-testing request. The State would apparently expect a layperson to intuit that the advisory actually means that, after the testing, tire person has the Hght to request that he or she be allowed to consult with an attorney. We decline to contort the statutory language in that manner.
Consequently, we reject the court-made, bright-line timing rule set forth in Tedder and applied by the majority below. A person may invoke his or her post-testing right to consult with an attorney prior to testing.
Whether Dumler requested post-testing consultation
The district court appeared to view the post-testing right to counsel as only being applicable to a consultation on the topic of additional testing. Specifically, the district court noted that “it certainly is not defined as to what [Dumler] wanted to talk to tire attorney about . . . and I don’t imagine [] Dumler was thinking specifically about talking about a test or just talking about things in general with an attorney.” But the statutorily mandated implied consent advisory does not restrict the subject matter of the attorney consultation to which the person is entitled. Rather, it states that “the person has the right to consult with an attorney and may secure additional testing.” (Emphasis added.) K.S.A. 2009 Supp. 8-1001(k)(10). As the Court of Appeals recognized in Kelly, “had the legislature intended to limit the consultation to whether a second test is performed, it could have easily written ‘the person has the right to consult with an attorney to determine whether to secure additional testing.’ ” 14 Kan. App. 2d at 189. Certainly, consulting with an attorney about additional testing would be an important reason that a person would exercise his or her right to counsel, but it is not a condition precedent to the invocation of the right.
Rather than focusing on the subject matter of the desired consultation, tire district court should have determined whether Dum-ler was requesting a post-testing consultation. As the concurrence below noted, the statute limits when a person may actually communicate with a lawyer. 2012 WL 4679128, at *3. For instance, a person has no right to consult with counsel before deciding whether to take the requested alcohol testing. But after the test, a person has the unrestricted right to consult with an attorney, period. Given that the district court apparently applied an incorrect legal standard on the question of whether Dumler’s post-testing right to counsel was violated, a remand would be in order. See Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006) (noting that despite general rule that litigant must object to inadequate findings of fact in the trial court, “this court may still consider a remand if the lack of specific findings precludes meaningful review”). Upon remand, the district court shall determine whether Dumler was invoicing the right to consult with an attorney after testing that the arresting officer specifically advised him that he possessed.
But before sending the matter back for further proceedings, we pause to address the question of whether any remedy exists for a violation of the statutory right to counsel.
Remedy
As noted, the Court of Appeals concurrence found that the arresting officer violated Dumler s statutory right to counsel but opined that the statutes governing driver s license suspension proceedings provided him with no remedy for such a denial of his right to counsel. 2012 WL 4679128, at *5 (Atcheson, J., concurring). The concurrence’s rationale is that because K.S.A. 2009 Supp. 8-1001(k)(10) discusses both the person’s right to consult with an attorney and the person’s right to obtain additional testing, but K.S.A. 8-1004 only provides an explicit remedy for an officer’s failure to permit a person to obtain additional testing, the courts should not fashion an implied remedy for the failure to permit a person to consult with an attorney. 2012 WL 4679128, at *5-6 (Atcheson, J., concurring). We decline to find that the legislature intended to create a right without a remedy on the most fundamental subject matter as a person’s right to counsel.
Although we have not ruled on the remedy issue in the context of a civil administrative proceeding, we have clearly held that the notice provisions, including the right to consult with an attorney after testing, are mandatory. Barnhart, 243 Kan. at 212. And in the criminal DUI context, we have held that because of Barnhart’s holding that the notices were mandatory, an officer’s failure to provide a driver with .notice of the statutory right to counsel results in suppression of the test results. State v. Luft, 248 Kan. 911, 913, 811 P.2d 873 (1991). The Court of Appeals has applied Luft to suppress test results in tire administrative license suspension context, reasoning that Luft’s reliance upon Barnhart “makes it clear that failure to give the statutory warnings (notices) required by 8-1001[k] will result in suppression of test results in an administrative suspension of license proceeding as well as in a criminal action.” Ostmeyer v. Kansas Dept. of Revenue, 16 Kan. App. 2d 639, 644, 827 P.2d 780 (1992). It would seem counterintuitive, if not perverse, to provide' a person the remedy of suppression where the arresting officer failed to tell the person that he or she had the right to consult with an attorney, but then withhold any remedy where the officer tells the person of the right but then refuses to allow the person to exercise that right. If the legislature intended for the State to inform drivers of their rights, it surely contemplated that the State would honor those rights, as well.
Further, we do not read K.S.A. 8-1004’s explicit provision of a remedy for refusing to allow a driver to obtain additional testing as impliedly withholding any remedy for refusing to allow a driver to consult with an attorney. As suggested, those two rights are often intertwined, so that denying the right to consult with an attorney could remove an important component of the driver’s decision-making with respect to additional testing. In other words, a driver’s exercise of her or his right to consult with an attorney could lead to a request for additional testing, which is subject to an explicit remedy. Moreover, K.S.A. 8-1004 specifically provides that its provisions do not limit or affect K.S.A. 8-1001, from whence the statutory right to counsel emanates.
Two additional provisions support the notion that the legislature intended to provide a remedy for a violation of the right to counsel. First, K.S.A. 2009 Supp. 8-1001(s) provides that “[n]o test results shall be suppressed because of technical irregularities in the consent or notice required pursuant to this act.” The clear implication is that if something more than a technical irregularity is involved, the test result should be suppressed. It would stretch the common understanding of “technical irregularities” to find that it encompassed a complete denial of the right to consult with an attorney. See Cady v. Schroll, 298 Kan. 731, 738, 317 P.3d 90 (2014) (appellate court ascertains legislative intent through statutory language enacted, giving common words their ordinary meanings).
Second, K.S.A. 2009 Supp. 8-1012, dealing with preliminary breath tests, shows that our legislature knew how to enact notice provisions that are not grounds for suppression. K.S.A. 2009 Supp. 8-1012(c) discusses the notices a person shall be given before taking a preliminary breath test and explicitly states that “[fjailure to provide the notice shall not be an issue or defense in any action.” No corresponding remedy exclusion is contained in the notice provisions required under K.S.A. 2009 Supp. 8-1001(k).
Finally, as a practical matter, if we do not recognize a remedy for a violation of the statutory right to counsel, that provision would be essentially rendered meaningless. “As a general rule, courts should . . . presume that the legislature does not intend to enact useless or meaningless legislation.” Board of Miami County Comm'rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 322, 255 P.3d 1186 (2011).
Consequently, we hold that suppression of the alcohol testing result is the appropriate remedy for the denial of a driver s statutoiy right to counsel. Therefore, upon remand, if tire district court finds that Dumler requested counsel pursuant to the statutory right to counsel contained in K.S.A. 2009 Supp. 8-1001(k)(10), the proper remedy is to suppress the breath test results in his administrative action.
Remanded with directions. | [
-16,
-21,
-1,
-66,
11,
64,
-78,
-102,
81,
-13,
103,
115,
-81,
-38,
21,
59,
-70,
127,
117,
105,
-33,
-74,
87,
-127,
-10,
-13,
24,
-50,
-77,
90,
100,
8,
13,
56,
-118,
-107,
38,
-55,
-107,
88,
-114,
6,
-101,
-32,
88,
-111,
32,
99,
86,
15,
49,
31,
-61,
62,
25,
-61,
40,
124,
75,
-92,
-104,
-80,
-99,
21,
-33,
20,
-79,
0,
-68,
-123,
112,
31,
-104,
-71,
9,
-20,
114,
-74,
-126,
-76,
75,
-103,
-84,
-26,
97,
-96,
57,
-57,
-4,
-87,
14,
-120,
-65,
-121,
-38,
89,
73,
44,
-106,
-69,
123,
54,
47,
-8,
-22,
84,
20,
124,
6,
-53,
-96,
-111,
-49,
117,
-122,
67,
-17,
5,
32,
101,
-127,
84,
84,
-59,
114,
27,
-42,
52
] |
The opinion of the court was delivered by
Stegall, J.:
The Plaintiffs in this case—Steve Peterson, Sam Eilert, and Randy Hlad— sued Garland P. Ferrell, III, doing business as 4L Grazing, LLC (Ferrell), alleging Ferrell breached numerous grazing contracts while the Plaintiffs1 cattle (including bulls, cows, and stacker cattle intended for tire meat market) were supposed to be calving, fattening, and breeding on Ferrell’s pastures during 2008. The Plaintiffs claimed that Ferrell failed in his duty to adequately feed, care for, and supervise their cattle.
The Plaintiffs further alleged that Ferrell's breach caused damages in the form of: (1) a higher than expected number of open, unbred cows; (2) bulls and cows with deteriorated body conditions; (3) bulls that either died or were so deteriorated that they had to be sold for salvage; and (4) stacker cattle that did not gain the expected weight. The matter proceeded to a bench trial, and the district court found Ferrell had breached the grazing contracts. The court awarded a total of $240,416.90 of damages to compensate the Plaintiffs for the reduced value of the unexpected open cows, the lost expectation value of calves never conceived, the costs associated with rehabilitating the body condition of the bulls and cows, the lost value of dead and salvaged bulls, and the reduced value of stacker cattle that did not put on expected weight.
Ferrell appealed the matter to the Court of Appeals, arguing that die district court erred by refusing to dismiss Peterson’s claims, by finding that Ferrell breached the contracts, and by relying on erroneous methods of damage calculation and awarding damages not supported by sufficient evidence. A panel of the Court of Appeals found that Peterson did not have standing and dismissed his claims. The panel affirmed the district court’s finding of a breach of the grazing contracts and affirmed the district court’s damage award in most respects. The panel did, however, remand the damage award to die district court to correct three errors: (1) to limit the damages for unexpected open cows to the difference in value between a bred cow and an open cow without also awarding the lost expectation value of calves never conceived; (2) to conform the award for rehabilitation costs to the competent evidence presented below; and (3) to determine the exact amount of damages properly attributable to the cattle owned by Eilert and Hlad individually and to limit and itemize the award accordingly. Peterson v. Ferrell, No. 107,359, 2012 WL 5869622 (Kan. App. 2012) (unpublished decision), rev. granted December 27, 2013.
The parties timely appealed from the decision of the Court of Appeals. The Plaintiffs asked us to review the question of Peterson’s standing and the question of awarding damages for calves never conceived. Ferrell sought review on the questions of breach and damages. We granted both petitions pursuant to K.S.A. 20-3018(b). We exercise jurisdiction pursuant to K.S.A. 60-2101(b) and affirm the judgment of the Court of Appeals affirming in part, reversing in part, and remanding to the district court with directions. The judgment of the district court is affirmed in part, reversed in part, and remanded with directions.
Factual Background
We begin by summarizing the evidence presented at trial. Some of the Plaintiffs’ cattle had spent the 2007 winter on Ferrell’s ranch. In the early spring 2008, the cattle began experiencing a difficulty known as “going down”—describing an inability to stand up. Ferrell’s ranch manager, Jamie Nelson, called in veterinarian Dr. Roger Bechtel who diagnosed malnutrition and prescribed a magnesium solution and more food. Nelson followed Dr. Bechtel’s recommendation, and the cattle seemed to improve.
In May 2008, the Plaintiffs transported additional cattle to the ranch; but by July, new problems emerged. An outbreak of pneumonia afflicted the calves and was only partially treated. Nelson left Ferrell’s employment on July 10 but returned briefly between July 17 and 23. On his return, Nelson noted that the stacker cattle were in the same paddock as the day he left. In Nelson’s opinion, Ferrell’s failure to rotate grazing paddocks left the cattle stressed and without grass, causing significant weight loss.
The district court heard testimony that the average conception rate for a herd of cows like the Plaintiffs’ herd was between 90 and 96 percent. By October 2008, however, Dr. Bechtel had determined that the overall conception rate for the Plaintiffs’ cows was 83 percent. Dr. Bechtel noted during the October check that the cattle were underweight with body condition scores of threes and fours, with some twos. Body condition score is a rating between one and nine to assess the degree of flesh on a cow, with five being optimal. An animal with a less than optimal body score is less likely to conceive a calf. Dr. Bechtel testified that in 2006 and 2007 the cows at Ferrell’s ranch had conceived at normal conception percentage rates in the mid- to low-90s and had body scores of 5s and 6s.
Many other witnesses testified the cattle were malnourished and afflicted with a variety of health deficits. Two bulls died soon after leaving Ferrell’s ranch, and two others had to be sold for salvage value. The remaining cattle required significant rehabilitation. Additional facts will be added when relevant to our discussion of the various arguments made by the parties.
Analysis
1. Peterson Does Not Have Standing
The Court of Appeals found Peterson lacked standing because he was not the true owner of the cattle. The panel dismissed Peterson’s claims and reversed the damages awarded to him. Peterson, 2012 WL 5869622, at *4. Peterson disputes this holding.
Standing is a component of subject matter jurisdiction, and whether a party has standing is a question of law over which ap pellate review is unlimited. See Gannon v. State, 298 Kan. 1107, 1122, 319 P.3d 1196 (2014) (citing Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 903, 249 P.3d 434 [2011]). As it is a component of subject matter jurisdiction, it may be raised at any time and on an appellate court’s own motion. Ternes v. Galichia, 297 Kan. 918, 921, 305 P.3d 617 (2013).
In order to establish standing, a litigant must “ ‘ “demonstrate that he or she suffered a cognizable injury and that there is a causal connection between the injury and the challenged conduct.” Gannon, 298 Kan. at 1123 (quoting Cochran, 291 Kan. at 908). To demonstrate a cognizable injury, “[t]he injuiy must be particularized, i.e., it must affect the plaintiff in a ‘ “personal and individual way.” ’ ” Gannon, 298 Kan. at 1123 (quoting Sierra Club v. Moser, 298 Kan. 22, 35, 310 P.3d 360 [2013]). Similarly, “[a] party generally must assert its own legal rights and interests and may not base its claim to relief on the legal rights or interests of third parties.” Ternes, 297 Kan. at 922.
Peterson’s claims arise out of two different contracts. The first is between Ferrell and “Steve Peterson d.b.a. Oak Creek Land and Cattle Company, Inc.,” while the second is between Ferrell and “MPK Land & Livestock, LLC.” Peterson testified that Oak Creek Land and Cattle was actually a limited liability company that owned the cattle subject to the first contract. As to the second contract, Peterson testified that a partnership, not MPK Land & Livestock, actually owned those cattle. Most importantly, Peterson never testified that he owned any of the cattle in his personal capacity—he affirmatively admitted he was not personally the owner.
Regardless of the corporate or partnership form used, Oak Creek Land and Cattle, MPK Land & Livestock, and an unnamed partnership are all legal entities separate and distinct from Peterson. See K.S.A. 17-7673(b); K.S.A. 56a-201(a). As such, Peterson cannot show the injury affected him in a personal way, and he cannot assert the claims of another. Because Peterson has failed to come forward with any evidence that he personally owned any of the cattle in question, he cannot meet his burden to demonstrate a cognizable injury personal to him. The Court of Appeals correctly found that Peterson has no standing.
II. Ferrell Breached the Grazing Contract
Each remaining contract (following the dismissal of Peterson’s claims) contained the following identical language:
“GRAZER’S DUTIES: Grazer shall provide adequate grass and water for Owner’s cattle as nature shall provide. Grazer shall provide feed and mineral to Owner’s cattle according to the seasonal, nutritional needs of Owner’s livestock. Grazer shall send a copy of the monthly pasture log to Owner with the monthly billing.
“Grazer agrees to routinely monitor the condition of Owner’s cattle and provide prudent veterinary care when necessary. Grazer agrees to maintain reasonable vigilance over Owner’s cattle and manage the grazing of said cattle so as to optimize the quality of grass available to them. Grazer shall also provide, at his expense, labor for handling Owner’s cattle including, but not limited to, receiving, spring calf working, pre-conditioning, weaning (on to a truck), and seasonal shipping arranged by Owner.”
Ferrell argues the lower courts erred in finding he breached the grazing contracts. He argues the contracts only required that he supply water and grass as nature availed. The Court of Appeals disagreed and held that Ferrell was also obligated to provide veterinary care, to monitor the condition of the cattle, to provide food and minerals according to the cattle’s needs, and to manage grazing to optimize grass quality. Peterson, 2012 WL 5869622, at *5.
We exercise unlimited review when interpreting and determining the legal effect of contracts. Prairie Land Elec. Co-op v. Kansas Elec. Power Co-op, 299 Kan. 360, 366, 323 P.3d 1270 (2014). But whether a contract has been breached is a question of fact. Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 964, 298 P.3d 250 (2013). A district court’s factual findings will not be distui'bed on appeal if they are supported by substantial competent evidence. In other words, an appellate court will not reweigh the evidence but will accept the district court’s findings so long as there is evidence in the record that reasonably supports the ultimate finding. See Gannon, 298 Kan. at 1175-76; Webber v. Automotive Controls Corp., 272 Kan. 700, 705, 35 P.3d 788 (2001).
“ ‘The primary rule for interpreting written contracts is to ascertain the parties’ intent. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction.’ ” Waste Con nections, 296 Kan. at 963 (quoting Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 [2011]). The grazing agreements are agistment contracts, the main object of which “is tire furnishing of pasture land on which the cattle might graze and gain weight.” Lips v. Opp, 150 Kan. 745, 752, 96 P.2d 865 (1939).
“ ‘In the absence of special agreement, an agistor is bound to exercise ordinary diligence in keeping, feeding, sheltering, and otherwise caring for animals committed to his custody, and is liable for loss or injury to the animals resulting from his breach of such duty; exercise of ordinary care satisfies the agistor’s obligations, he is not an insurer; and he may not be held responsible for loss or damage occurring without his fault.’ ” Hughes v. Atkinson, 188 Kan. 413, 421, 362 P.2d 618 (1961) (quoting 3 C.J.S., Animals § 17, pp. 1108-09).
Ferrell relies on the rule that an agistment contract does not make the agistor an insurer or guarantor of good results for the owner s animals. He notes that the contracts did not guarantee the Plaintiffs’ cattle would attain any specific body score or conception rate. But here Ferrell gets the causation chain backwards. He is correct insofar as the fact the cattle were malnourished or under-bred could not create a breach of the contracts because no results were guaranteed. These facts, however, are evidence of harm that may have been caused by Ferrell’s failure to meet the contractual obligations he did undertake. Absent a guarantee, a bad result only raises—it does not answer—the question of breach.
Ferrell contends that his only duty was to supply the cattle with all the grass and water nature provided—and that to impose any additional duty would render the contractual term “as nature shall provide” without meaning. We are not convinced. In fact, the plain, clear, and unambiguous terms of the contracts establish that Ferrell promised to: (1) “provide feed and mineral,” according to the needs of the cattle; (2) “to routinely monitor” the health of the animals; (3) to provide them “prudent veterinaiy care when necessary”; (4) “to maintain reasonable vigilance” over the cattle; and (5) to manage grazing “so as to optimize the quality of grass available to” the cattle. These are all duties imposed on Ferrell by the clear language of tire agreements above and beyond simply allowing the cattle to forage for what they could find on Ferrell’s ranch.
After a complete review of the evidence presented below, we are convinced that the district court’s finding that Ferrell breached these duties is supported by substantial competent evidence. When there is substantial evidence to support the findings of the district court, it is immaterial if there was contrary evidence presented which, if believed, would support a different outcome. Clark v. Clark, 236 Kan. 703, 704, 696 P.2d 1386 (1985). There was evidence given at trial that the animals were not given nutrition adequate to their needs, that their grazing was not managed to optimize grass intake, and that their health was not adequately monitored or treated. While contrary evidence also appears below, we will not reweigh the evidence and are satisfied that the record evinces sufficient support for a reasonable factfinder to conclude that Ferrell breached the contracts.
III. The Court of Appeals Correctly Resolved the Question of Damages
The correct measure of damages for breach of contract is a question of law subject to unlimited review. Louisburg Building & Development Co. v. Albright, 45 Kan. App. 2d 618, 638, 252 P.3d 597 (2011). Generally spealdng, when awarding contract damages, tire goal is to put the nonbreaching party in the position he or she would have been in had tire breach never occurred. State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 789, 107 P.3d 1219 (2005). When reviewing a remedy the trial court has fashioned to make the injured party whole, “ The test on appellate review is not whether the remedy is the best remedy that could have been devised, but whether the remedy so fashioned is erroneous as a matter of law or constitutes a breach of trial court discretion.’ ” In re Conservatorship of Huerta, 273 Kan. 97, 99-100, 41 P.3d 814 (2002) (quoting Gillespie v. Seymour, 250 Kan. 123, Syl. ¶ 10, 823 P.2d 782 [1991]).
Thus, while damage awards are discretionary, “there must be some reasonable basis for computation which will enable the trier of fact to arrive at an approximate estimate thereof.” Stewart v. Cunningham, 219 Kan. 374, 381, 548 P.2d 740 (1976). On review, appellate courts do not reweigh evidence or pass upon the credi bility of witnesses. In re Estate of Farr, 274 Kan. 51, 68, 49 P.3d 415 (2002). When examining whether the evidence is insufficient to support a claim of damages because it is too conjectural or speculative, we examine the record in the light most favorable to the prevailing party. See Shirley v. Smith, 261 Kan. 685, 694, 933 P.2d 651 (1997); Southwind, Exploration v. Street Abstract Co., 42 Kan. App. 2d 122, 130, 209 P.3d 728 (2009).
The parties appeal a number of different aspects of the lower courts’ handling of tire damage claims. First, both parties appeal aspects of the damages awarded to compensate the Plaintiffs for unexpected open cows. Next, Ferrell appeals the damages awarded to compensate the Plaintiffs for rehabilitation costs. And finally, Ferrell appeals tire damages awarded to compensate the Plaintiffs for the dead and salvaged bulls. We will address each category of damages in turn.
First, the district court found Ferrell’s breach caused a higher than expected number of open cows. It awarded damages based on an expected conception rate of 92 percent. It found the difference in value between an open cow and a bred cow to be $600 and awarded this amount for every open cow below the 92 percent conception rate. In addition, the district court awarded the Plaintiffs the value of the “lost crop” of never conceived calves. The Court of Appeals upheld the award based on open cows below the 92 percent conception rate but found the lost crop damages would constitute a windfall for the Plaintiffs. Peterson, 2012 WL 5869622, at *7-8. Each party petitioned for review from the adverse aspect of this decision.
On the one hand, we find no error in the panel’s decision to limit the damages associated with unexpected open cows. The Plaintiffs argue that by only awarding the difference in value between an open and a bred cow, the Court of Appeals erroneously prevented them from realizing the value of the lost crop—i.e., the never conceived calves. The Court of Appeals relied on the general rule that a proper damage award will put the aggrieved party in the position he or she would have been in but for tire breach and found that, had the contract been performed, the Plaintiffs would have had bred cows, not market-ready calves. 2012 WL 5869622, at *7-8.
The panel explained that the Plaintiffs “could never utilize the value of both bred cows and their calves because those things do not exist simultaneously.” 2012 WL 5869622, at *8. The Plaintiffs’ insistence on appeal that they would have had the calves is not a valid economic objection. In fact, in terms of the economic expectations of the Plaintiffs, tire difference in market value between a bred cow and an open cow is effectively the value of a market calf after applying a discount rate comprised of the risk factors and cost inputs associated with taking a calf in útero through calving, weaning, and raising to market.
On the other hand, Ferrell reprises his argument that because the contracts did not guarantee a specific conception rate, any measure of damages utilizing a conception rate is legally infirm and unsupported by the evidence. As already explained, Ferrell confuses concepts of breach with a measure of damages. Ferrell did not breach the contracts because the cattle did not achieve a 92 percent conception rate; rather, the cattle did not achieve a 92 percent conception rate because Ferrell breached the contracts. This conclusion does not make Ferrell a guarantor of results. He may, however, be held liable for bad results caused by his breach.
Here, the 92 percent conception rate utilized by the district court was an estimate reasonably derived from the evidence presented of the conception rate that the Plaintiffs’ cows would have obtained had there been no breach. Numerous witnesses at trial testified as to an average conception rate for ranches in Ferrell’s area. The testimony ranged from 89 percent at the lowest to 96 percent at its highest. However, most witnesses testified to ranges between 90 to 95 percent, which was also identified as the industiy standard. The district court did not err in this regard.
In the second category of damages, the district court found the Plaintiffs were entitled to recover the costs associated with rehabilitating tire body condition of the cows and bulls. The district court found that to properly rehabilitate each animal would require a 200-pound weight gain for each cow and a 300-pound weight gain for each bull. The court further found that it would cost the Plaintiffs 80 cents for each pound of weight gain. The Court of Appeals found the weight-gain amounts were supported by the evidence but the per-pound cost was based on inadmissible evidence. As such, the panel reversed this component of the damage award and remanded for a damage calculation that conforms to the evidence presented below. Peterson, 2012 WL 5869622, at *8-10.
Ferrell challenges this award on familiar grounds, claiming first that it is legally inappropriate because the contracts did not guarantee the Plaintiffs’ cattle would attain a specific body score; and second, that the award was based upon insufficient evidence. As before, the measure of damages utilized by the district court was appropriate as an effort to put the Plaintiffs in the position they would have been in but for Ferrell’s breach. Various witnesses testified that it could take as little as 75 pounds or as much as 200 pounds to raise a cow’s body condition by one body score. Peterson testified the bulls would need to put on 300 pounds in order to be rehabilitated. The district court’s weight gain findings were supported by the evidence.
As to the per pound cost multiplier, the Court of Appeals found the figure of 80 cents per pound was not supported by the evidence because it was only found in Peterson’s testimony—and Peterson was merely reciting a figure he had heard from Dr. K.C. Olson. Dr. Olson, however, testified to a different per-pound cost multiplier. Quoting Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 75-76, 274 P.3d 609 (2012), the Court of Appeals ruled that a property owner cannot merely parrot the opinions of experts as evidence of fair market value. Peterson, 2012 WL 5869622, at *9. Neither party specifically sought review of this portion of the Court of Appeals decision, so we need not address it on the merits. We do note, however, that on remand the district court must confine itself to the record already before it—that is, excluding Peterson’s testimony, did the Plaintiffs establish with sufficient particularity the cost per pound of rehabilitation weight gain? If they did not, Ferrell is correct that this claim for damages must fail for lack of proof. See Cerretti v. Flint Hills Rural Electric Co-op Ass'n, 251 Kan. 347, 362, 837 P.2d 330 (1992) (plaintiffs bear burden to prove their damages).
The final contested categoiy of damages concerns the dead and salvaged bulls. The district court found that the proper measure of damages for the Plaintiffs’ lost bulls was the cost of virgin 2-year-old bulls. Testimony at trial established that due to the risk of the spread of venereal disease in herds of cattle, there was effectively no market for “used bulls.” As such, in order to restore the Plaintiffs to the position they would have been in but for the breach— i.e., with serviceable bulls ready for breeding—the district court awarded replacement costs equal to the value of virgin bulls. The Court of Appeals found the evidence was sufficient to support such a finding, Peterson, 2012 WL 5869622, at *9, and we agree.
Ferrell now argues the award amounts to a windfall for the Plaintiffs as the lost bulls were older than a virgin bull. The evidence, however, demonstrated the lost bulls were in their peak breeding years. Moreover, expert testimony indicated that a rancher should never purchase a used bull for breeding due to the risk of introducing trichimoniasis, a venereal disease, into the herd. Given this, a reasonable factfinder could find that the replacement cost award must be sufficient to enable the purchase of disease-free bulls— otherwise the Plaintiffs would be in a worse position than they would have been but for the breach. And the only market in bulls guaranteed to be disease-free is the market in virgin bulls. The lower courts did not err in this respect.
The judgment of the Court of Appeals affirming in part, reversing in part, and remanding with directions to the district court is affirmed. The judgment of the district court is affirmed in part, reversed in part, and remanded with directions to the district court to enter an itemized damage award to Eilert and Hlad that conforms to the evidence presented at trial.
Luckert, J., not participating.
Michael J. Malone, Senior Judge, assigned. | [
-15,
124,
-111,
-115,
12,
40,
42,
-102,
67,
-85,
119,
83,
-23,
-45,
4,
105,
-25,
109,
69,
106,
-106,
-74,
69,
-64,
-106,
-5,
-103,
-61,
-79,
107,
-27,
85,
77,
16,
-126,
85,
-26,
-96,
-55,
-36,
34,
7,
25,
-3,
-39,
-112,
60,
43,
22,
79,
32,
-113,
-5,
44,
-71,
71,
40,
40,
121,
109,
-64,
-8,
-85,
15,
127,
19,
19,
36,
-82,
71,
-38,
110,
-112,
-80,
8,
-56,
122,
52,
-126,
116,
9,
-103,
-115,
38,
99,
-107,
28,
-115,
76,
40,
39,
-33,
-113,
-90,
-112,
8,
18,
38,
-66,
29,
52,
70,
6,
-2,
-17,
-116,
-97,
-67,
-107,
-122,
-110,
-89,
-113,
-12,
28,
65,
-53,
-89,
19,
97,
-53,
-94,
92,
69,
126,
-97,
-122,
-41
] |
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
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
Johnson, J.:
Luther Kemble direcdy appeals his conviction for aggravated indecent liberties with a child under age 14, for which he received a hard-25 life sentence. Kemble claims he is entitled to a new trial, based on: judicial misconduct; prosecutorial misconduct; the State’s failure to charge the age element of the enhanced offense; the district court’s failure to instruct the jury to find the element of the defendant’s age; and cumulative trial errors. Additionally, he contends the district court abused its discretion in denying his motion for a downward durational departure sentence. Finding that cumulative error prejudiced Kemble’s right to a fair trial, we reverse and remand for a new trial.
Factual and Procedural Overview
On the night of the incident giving rise to the charges against Kemble, he was drinking and playing cards with his cousin, Alfred Gallardo, Jr., at the home of Gallardo’s girlfriend, Ayanna. Others present included the children of Ayanna and Gallardo: their 8-year-old daughter M.S. and an infant daughter. Ayanna believed that Kemble was already intoxicated when he arrived at her apartment. Kemble said he had been drinking and taking drugs for most of that day.
At some point, the other adults left Kemble alone at the apartment with M.S. and the infant for approximately 20 minutes. When Gallardo and Ayanna returned, M.S. related that Kemble had touched her inappropriately. Specifically, M.S. said that she was attempting to make a bottle for her infant sister, but could not get the top off of the bottle. She asked Kemble for assistance, and he grabbed the bottom of her shirt to use on the bottle top. Then, he reached under M.S.’s shirt and touched her breast, both over and under her brassiere. M.S. also reported that Kemble asked for a kiss and slapped her on the buttocks.
Upon learning of the alleged abuse, Ayanna and Gallardo confronted Kemble and the situation escalated into a loud and heated argument, which a neighbor overheard and called 911. The argument was still in progress when the police arrived at the apartment. After receiving an on-the-scene explanation of what had transpired, the officers arrested Kemble and took Ayanna and M.S. to the police station for a more formal investigative interview.
During her police station interview with Detective Bostick, M.S. relayed essentially the same information, except that she clarified that Kemble had actually grabbed her breast and squeezed it. She also reported that Kemble was acting “weird,” yelling at what she thought was the television in her mother s bedroom. During the interview M.S. explained that she knew the difference between the truth and a He and that she had lied to her mother twice before. She stated that “this is the last time.”
Gallardo testified at trial that a few days after the incident, M.S. recanted her story and told him that Kemble had only tried to open the bottle with her shirt and that she had gotten scared. To the contrary, M.S.’s trial testimony was that she had not spoken to either her mother or Gallardo about the incident after the night it happened.
The complaint, charging Kemble with aggravated indecent liberties with a child under age 14, did not allege that Kemble was 18 years of age or older at the time the events occurred, although the complaint’s caption included Kemble’s year of birth, and the statutory citation for the crime identified the charge as being an off-grid person felony.
M.S. had difficulty testifying at trial. At times, she did not speak clearly and loudly enough to be heard by the jury. During her first direct examination by the State and her first cross-examination by the defense, M.S. did not testify that Kemble had touched or grabbed her breast. When first asked what Kemble had done after opening the bottle, M.S. replied, “Nothing.” Her primary response to questions that were critical to the State’s case was “I don’t remember.” On several occasions throughout M.S.’s testimony, the trial judge interrupted or interjected, sua sponte, to admonish, encourage, or question M.S., as will be related in more detail below. The State conducted redirect examination, followed by the defense’s recross-examination, followed by further redirect, and finally further recross. Ultimately, on further redirect examination, M.S. said that Kemble had touched her, and in response to the trial judge’s request that she show the jury where she was touched, M.S. pointed to her breast area.
Kemble’s primary defense was that he could not have formed the requisite sexual intent due to voluntary intoxication. He testified that he could not remember the events with M.S. that evening because of a blackout from drinking; he said he regularly expert enced such blackouts. The jury apparently rejected the defense and convicted Kemble as charged.
Thereafter, Kemble filed a motion for judgment of acquittal and for a new trial. He argued that the prosecutor committed misconduct during closing argument by improperly commenting on Kemble’s post-Miranda silence, in derogation of the holding in Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). After a hearing, the court overruled the motion.
At sentencing, Kemble argued for, but was ultimately denied, a downward departure; he was sentenced to a mandatoiy hard-25 life imprisonment sentence. Kemble filed this direct appeal, and we assumed jurisdiction pursuant to K.S.A. 22-3601(b)(l).
Judicial Misconduct
First, Kemble contends that the trial judge’s participation in M.S.’s examination was tantamount to the judge commenting on M.S.’s credibility, which prejudiced Kemble’s substantial rights and denied him a fair trial. Kemble acknowledges that he did not contemporaneously object to the judge’s interruptions or questions, albeit we note one instance where defense counsel sought to foreclose further judicial questioning. Nevertheless, we have previously reviewed allegations of judicial misconduct despite the lack of a contemporaneous objection, when the defendant claims a violation of his or her right to a fair trial. State v. Tyler, 286 Kan. 1087, 1090, 191 P.3d 306 (2008); State v. Brown, 280 Kan. 65, 70, 118 P.3d 1273 (2005).
Standard of Review
We exercise unlimited review of the particular facts and circumstances of each case to determine whether judicial comments, other than jury instructions, rise to the level of judicial misconduct. The complaining party has the burden to establish that misconduct occurred and that the misconduct prejudiced the party’s substantial rights. “ If a proper and reasonable construction will render the remark unobjectionable, the remark is not prejudicial.’ ” Brown, 280 Kan. at 70 (quoting State v. Miller, 274 Kan. 113, 118, 49 P.3d 458 [2002]).
Analysis
Kemble contends that the trial judge’s numerous comments during M.S.’s testimony implied that M.S. was lying when she testified that she did not remember the critical events, but that M.S. was telling the truth when she testified favorably for the prosecution. The State counters that the trial judge was simply helping M.S. to “sit up straight; speak loudly; answer the attorney’s questions; say when she could not remember something; and tell the truth.”
We have read, reread, and thoroughly reviewed the entire transcript of M.S.’s testimony in order to put the judge’s comments into context. Before we recite and discuss portions of that transcript, it might be well to review a judge’s role in a jury trial.
“The trial judge is not merely a moderator, but is the governor of the trial.” State v. Hamilton, 240 Kan. 539, 545, 731 P.2d 863 (1987). As such, the trial judge “must strive to have the trial conducted in an atmosphere of impartiality and should refrain from remarks or conduct that may injure a litigant. [Citation omitted.]” 240 Kan. at 545. In that regard, a trial judge should be cognizant that jurors afford the presiding judge a great deal of respect and “ can be easily influenced by the slightest suggestion coming from the court, whether it be a nod of the head, a smile, a frown, or a spoken word.’ ” 240 Kan. at 545 (quoting State v. Wheat, 131 Kan. 562, 569, 292 Pac. 793 [1930] [Jochems, J., dissenting]). Decades ago, this court warned:
“A juror is prone to watch any indication by the judge as to how he regards any part of the testimony or the credibility of a witness and for that reason a trial judge must scrupulously avoid the slightest indication as to his personal feelings concerning the matter in issue.” State v. Winchester, 166 Kan. 512, 518,203 P.2d 229 (1949).
On the other hand, “a trial court must control the proceedings in all hearings and trials and . . . has broad discretion and leeway in doing so.” Hamilton, 240 Kan. at 547. Moreover, this court has permitted a trial judge to examine witnesses based upon the premise that one of the functions of a trial judge is to accomplish the full development of the truth. State v. Hays, 256 Kan. 48, 51, 883 P.2d 1093 (1994). However, even where affirming an examination from the bench, we have cautioned:
“ ‘If a trial judge believes that additional information should be obtained from a witness in order to clarify the evidence and enable the jury to arrive at the true facts, the better practice is for the trial judge to discuss the matter with counsel outside the presence of the jury and request counsel to pose the questions to the witness.’ ” Hays, 256 Kan. at 52 (quoting State v. Boyd, 222 Kan. 155, Syl. ¶ 2, 563 P.2d 446 [1977]).
If a trial judge eschews the better practice and examines a witness in front of the jury, the examining judge “ must exercise great care to prevent giving the jury the impression that [the judge] is biased against the defendant and [the judge] must not forget the function of a judge and assume that of an advocate.’ ” Hays, 256 Kan. at 52 (quoting Boyd, 222 Kan. 155, Syl. ¶ 1).
Turning to the transcript, we note that the trial judge injected herself into M.S.’s examination almost immediately. After the prosecutor began the first direct examination by asking M.S. her name, the following exchange took place:
“THE COURT: Oh, wait a minute here. Let me see something here. I would bet anything, looking at this girl, that when she’s outside, when somebody’s trying to sleep, that nobody gets any sleep because she can be as loud as she wants to be. Would I be right?
“[M.S.]: No.
“THE COURT: Okay. Well, let’s practice being louder on that. You’re almost whispering. So just use a — use a loud voice. Let me hear your regular voice, like when you’re talking to a friend.
“[M.S.]: Okay.
“THE COURT: Better. Much better. Thank you.”
Later in the direct examination, the court interrupted again, admonishing M.S. that she had reverted to using a soft voice again and indicating that M.S. was doing so because the prosecutor was using “a very soft voice.” The court told M.S. to copy the judge’s voice, not the prosecutor’s. Once again during direct examination, the court declared that it could not hear a word that M.S. was saying and advised the prosecutor that standing next to M.S. made the witness think she was having a conversation with the prosecutor. However, rather than instructing the prosecutor to change positions in the courtroom, the court told M.S. that she was telling her answers to the jury, apparently implying that M.S. needed to speak louder.
Up to this point, the trial judge had simply taken steps to control the proceedings in her courtroom by assuring that the jury could hear the witness. However, subsequently, the court began to get more intrusive with the substance of the testimony. When the prosecutor got to the point of trying to elicit what Kemble had done after M.S. asked him to open the baby bottle, the following exchange occurred:
“Q. Describe what he did next. What did he say?
“A. [M.S.] Nothing.
“Q. What did he do? Did he take the baby bottle?
“A. I can’t remember.
“Q. ... I want you to describe what happened that night. What did you tell your mom when she came home? Do you remember when your mom came home — when your mom and dad came home?
“A. I think I was on the couch sitting down.
“Q. Where was [the infant]?
“A. In my lap.
“Q. Why? What did you tell your mom?
“THE COURT: [M.S.], are you — are you embarrassed to answer these questions?
“[M.S.]: No.
“THE COURT: All right. Why are you not answering them?
“[M.S.]: I’m trying to remember.
“THE COURT: Okay. Well, say when you can’t remember but try and remember.
“[M.S]: I can’t remember.”
Here, the trial judge was not addressing the manner in which M.S. was testifying, but rather the answers she was giving. Although M.S. had provided an answer to each question, the court asked why she was not answering the prosecutor’s questions. A reasonable juror would infer that the judge did not believe that “I can’t remember” was a legitimate answer to the prosecutor’s question. That inference was reinforced the next time the trial judge intervened, during the defense’s first cross-examination, which is set forth below, with emphasis added:
“Q. [Defense counsel] . . . [A]re you kind of embarrassed up there testifying?
“A. [M.S.] No.
“Q. No. You’re not uncomfortable or anything?
“A. Well, a little.
“Q. [M.S.], let me ask you this. Do you remember telling Detective Bostick and telling your mom that Luther put his hand underneath your shirt?
“A. No.
“Q. You don’t remember telling them that?
“A. (Witness shook head from side to side) Hum-um.
“Q. So it’s possible that he didn’t do that?
“[PROSECUTOR]: Objection, that’s speculative.
“THE COURT: Overruled. This is cross examination. [M.S.], sit up straight and take your hands away from your chin and answer directly into the microphone, all right?
“[M.S.]: Okay.
“THE COURT: You’re a big girl and this is a big girl thing to do. So I want you to sit like a big girl and answer questions. You know, it’s not telling the truth if you say I don’t remember and tjou do remember. Do you understand me?
“[M.S.]: (Witness nodded head up and down) Okay.
“THE COURT: All right. Good.
“[M.S.]: Well, I remember a little bit but not all of it.
“THE COURT: Well, answer the questions that . . . [the defense] is asking then.
“[M.S.]: Okay.
“THE COURT: Thank you.
“Q. Is it possible that Luther didn’t put his hand up your shirt and touch you in your chest area?
“A. I think I’m starting to remember that part.
“Q. Okay. Let me ask you this, [M.S.]. Is it possible that he maybe pushed you away or something like that?
“A. No.
“Q. That’s not possible?
“A. No
“Q. Okay.
“THE COURT: Good girl.
“Q. So again, do you remember him trying to help you open the bottle?
“A. I think. I’m not sure.
“Q. That’s okay. If you don’t remember, that’s okay.
“THE COURT: Ask another question, please.
“[Defense counsel]: Sure.” (Emphasis added.)
This time, the trial judge’s clue to the jury that M.S.’s “I can’t remember” answers were not truthful was much less oblique. Her statement would intimate to a rational person that the court thought that M.S. really did remember. The court then exacerbated the impression that it was prejudiced against the defendant by praising M.S. for her unfavorable answer to defense counsel’s question. But, the court was not finished with its intervention. When defense counsel immediately returned to eliciting responses favorable to the defendant, the trial judge cut off the questioning.
During redirect examination, the court refrained from getting involved, except for one point at which the judge, noting that M.S. had reverted to talking softly, reminded M.S. to talk in the loud voice of the judge and not the soft voice of the prosecutor. However, shortly after recross-examination began, the judge jumped back into the fray:
“Q. [Defense counsel]: But you don’t remember him doing anything else with his hands? [M.S.], again, if you don’t remember, you can tell me you don’t remember.
“A. [M.S.]: I remember some parts of it.
“THE COURT: Do you want to take a break, [M.S.]? Is this — or would you like — you know, let me just be very honest with you right now, okay. If you just say what you know and after you’re done telling what you know then it’s going to go faster, you’ll be done, all right? I’m not asking you to say anything that isn’t true. In fact, I’m ordering you to only tell what the truth is.
“[M.S.]: Okay.
“THE COURT: But sometimes just saying I don’t remember, if that’s not true, then that’s a he. And then — and that’s not what you promised to do here. If you really don’t remember, say you don’t remember, okay? You are a big girl, and you have shown every time, you know, what — every time you straighten your back and sit straight up, you give a good answer and you talk loud and stuff like that. You are much bigger than what you’re trying to be. Do you understand what I’m saying?
“[M.S.]: Yes.
“THE COURT: Thank you very much. Now would you answer his questions?
“[M.S.]: Yes.
“THE COURT: Thank you. [Defense counsel],
“[Defense counsel]: Thank you, Your Honor.
“Q.: So [M.S.], you remember him grabbing the bottom of your shirt?
“A.: Yes, and I remember that.
“THE COURT: If you want to look towards me, that would be fine. If you want to look at me when you’re answering your questions, that would be fine, too.
“[M.S.]: I don’t remember anything.
“THE COURT: If you don’t remember, then that’s the answer to give. You started to answer the question. What was her response? What did she say, I remember some parts of it? Please tell [defense counsel] the parts that you remember.
“[Defense counsel]: But Your Honor, I think probably she did respond to my question just now by saying she didn’t remember anything else. I was pretty much done with that.
“THE COURT: All right. Thank you. [Prosecutor]?”
The trial judge’s offer of a break is curious, given that the completion of the State’s redirect examination would have been the natural time to take a break in the proceedings, and there was no indication that the witness was experiencing emotional distress. One might note that the examination went through the remainder of the recross, as well as the further redirect and further recross, without another proffer of a break. The interruption becomes more suspect when it includes a veiled suggestion that if M.S. will just implicate Kemble, then the witness will be done testifying. Pointedly, this was the only time that defense counsel apparently felt that he could take the risk of challenging the court’s intervention, albeit such assertiveness was not to resurface.
The foregoing transcript recitation was followed immediately by the prosecutor’s further redirect examination, in which the trial judge apparently could not refrain from participating, as follows:
“Q. [Prosecutor]: [M.S.], you tell the Judge, you said I remember some parts of it. You said that I remember him using my shirt to try and open the baby bottle, and finish your sentence. You tell the Judge what’s the rest, just tell her.
“A. [M.S.]: And I remember part, he touched me right here.
“THE COURT: He did, okay. Now, that you’ve told me, would you show the jury where you said he touched you?
“[M.S.]: Right here.
“[Prosecutor]: For the record, the witness is indicating on her — on her breast area.”
The court then abstained from being involved in the State’s remaining redirect examination of M.S. However, before the defense commenced its recross-examination, the court spoke up again to advise M.S. that she was loud when she sat up straight, specifically saying: “You notice how you talk more convincingly and more, you know, loud and stuff.” (Emphasis added.) The court told M.S. to do the same thing for defense counsel, and further advised that “it also will go much more faster.” After the questioning was completed, the court left this final impression with the jury:
“THE COURT: Thanlc you, [M.S.]. Very good. I’m glad that you finally decided to answer like a big girl and I appreciate it very much. You’re done testifying now. Thank you.”
One can empathize with the frustration a trial judge might experience with a child witness who will not testify consistently with his or her prior statements, especially if the judge might perceive that the prosecutor s soft-spoken demeanor is impeding the search for the truth and precluding the just punishment of a perpetrator of the most despicable conduct in our society. Nevertheless, the judge cannot cross the line between being the impartial governor of the trial and being an advocate for the prosecution. The lines of demarcation separating the duties of each of the players in a criminal trial are sacrosanct, i.e., the prosecutor representing the people; the defense attorney representing the accused; the trial judge representing the interpreter of the law; and the jury representing the finder of facts. If any of those lines are crossed, the system that has held this nation in good stead for two and a quarter centuries has been compromised. Here, the trial judge crossed the line, not only refusing to follow the better practice of addressing the problem with counsel outside the jury’s presence, but fading to exercise the appropriate caution in questioning a witness and making comments in front of the jury.
Apparently, the court recognized the potential problem during the trial, commenting to the attorneys outside the presence of the juiy that the record might read as though she had been sympathetic to the victim. The prosecutor noted some of the court’s interventions, described above. The court responded that she believed her interventions had been solely for the purpose of getting M.S. to testify in a louder voice. When asked if he agreed, the defense attorney responded, “I do, Your Honor, and I also think the court was being stem with her and not babying her in any fashion.”
One might view the defense attorney’s comment as a waiver of the judicial misconduct complaint, because it may have prevented the trial judge from giving a cautionary instruction to the juiy about the court’s participation. However, there is precedent for the proposition that one cannot assume that jurors will disregard a trial judge’s improper statements just because they are told to do so. See Hamilton, 240 Kan. at 545; Winchester, 166 Kan. at 517-18 (judge’s improper cross-examination of defendant reversible error, even though judge discovered his error and gave jury a corrective instruction). Moreover, combination of the judicial misconduct and the prosecutorial misconduct, to be discussed below, dictate the defendant’s entitlement to a new trial.
Prosecutorial Misconduct
Next, Kemble argues that the prosecutor improperly commented on his post-Miranda silence during closing argument, in violation of Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). Specifically he complains that the statement, “He never said I was too drunk to remember until today,” was presented in a PowerPoint slide used by the State during closing arguments. Kemble’s objection at trial was overruled, and his motion for acquittal and motion for new trial on the same grounds were denied.
Standard of Review
This court employs the familiar two-step analysis for reviewing claims of prosecutorial misconduct.
“ ‘First, the court must determine whether the prosecutor’s statements were outside the wide latitude for language and manner a prosecutor is allowed when discussing the evidence; second, it must determine whether the comments constitute plain error, that is, whether the statements were so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial. [Citation omitted.]’ ” State v. Brinklow, 288 Kan. 39, 44, 200 P.3d 1225 (2009) (quoting State v. Scott, 286 Kan. 54, 77, 183 P.3d 801 [2008]).
The second step addresses whether the misconduct is so prejudicial that it denies the defendant a fair trial and requires a harmlessness inquiry. Brinklow, 288 Kan. at 44. Three factors are considered: “(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” 288 Kan. at 44. No individual factor is controlling, and the third factor may never override the first two until both harmlessness tests- — K.S.A. 60-261 (prosecutor’s statements were inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (error had little, if any, likelihood of changing the outcome of trial) — have been met. “ ‘ “If this can be said, then certainly it will also be true ‘that the misconduct would likely have little weight in the minds of jurors.’ ” ’ ” 288 Kan. at 44 (quoting Scott, 286 Kan. at 79).
Analysis
The familiar recitation set forth in Miranda some 44 years ago advises a defendant that he or she has the right to remain silent and warns that if he or she chooses not to exercise the right to remain silent, then anything that he or she says can and will be used against the person in a court of law. The corollary is that if a duly warned person does exercise the right to remain silent, then anything that the person did not say, i.e., the person’s silence, cannot and will not be used against them in a court of law.
More specific to this case, constitutional constraints preclude a prosecutor from commenting on a defendant’s post-Miranda silence in closing argument. Accordingly, a prosecutor may not attempt to impeach the truth of a defendant’s trial testimony by implying that the defendant had a post-Miranda, pretrial obligation to reveal to the police or prosecutor the substance of the defendant’s trial testimony. See State v. Hernandez, 284 Kan. 74, 94, 159 P.3d 950 (2007). Obviously, that is precisely what the prosecution did in this case by saying that Kemble was asserting his voluntary intoxication defense for the first time at trial.
The defense counsel objected to the PowerPoint statement during the closing argument, saying, “That’s improper because it’s his right to remain silent.” After clarifying for the court the exact statement being challenged, the trial judge overruled the objection with the cursory statement, “Well, that’s okay.” Then, when denying the defendant’s motion for new trial, the trial judge said, “[a]ll the State did was say that, you know, he had never raised this to anyone else,” and then the court opined that the State was not prohibited from making such a statement. But, of course, that is exactly the prohibition stated by Doyle and specifically followed in this state by Hernandez.
The State attempts to characterize the closing argument statement as only referring to the “defendant’s failure to mention his alleged intoxication when confronted by the victim’s family in the immediate aftermath of the incident.” Obviously, if defendant was asserting a voluntary intoxication defense, he would be saying that he was too drunk to form a specific intent to commit the crime. Yet, the State would expect the defendant to have sufficient cognitive ability to affirmatively assert, almost contemporaneously with the criminal act, that defendant was relying on the defense of voluntary intoxication, i.e., he was too drunk to know what he was doing, but not too drunk to assert his affirmative legal defenses. The argument is, at best, counterintuitive. Moreover, one of the family members was apparently able to discern Kemble’s intoxication without the benefit of his declaration that he was intoxicated.
More importantly, the State’s argument does not comport with the actual statement used in closing argument. The statement was: “He never said I was too drunk to remember until today.” (Emphasis added.) “Today” was the day of trial, not the immediate aftermath of the incident. The State’s attempt to rewrite the statement on appeal is unavailing. The prosecutor committed a Doyle violation, which is clearly outside the permissible bounds of fair comment under the first step of our analysis.
Turning to the second step of the analysis, we find that, considering the three factors, the misconduct was clear error. First, the misconduct must be considered gross and flagrant. We are not dealing with a newly announced constitutional rule of which the prosecutor may not have been aware. Some 34 years ago, Doyle established the basic premise that when a defendant invokes his or her right to remain silent, the State may not use that silence against the defendant at trial. Likewise, this court has not been equivocal about the rule’s application to a prosecutor’s closing argument. Recently, in Hernandez, 284 Kan. at 94, we held that the prosecutor’s comments in closing argument provided “a clear implica tion . . . that were the defendant’s testimony at trial true, he would have provided his exculpatory story after he was charged.” We stated explicitly that “[s]uch implications are barred by Doyle.” 284 Kan. at 94.
Moreover, we are not presented with a spur-of-the-moment comment delivered extemporaneously under the stress of countering a defense argument. The statement was included in the State’s PowerPoint presentation to the jury. Some forethought during trial preparation could have easily avoided the constitutional violation. Even at trial, the prosecutor was put on notice of the Doyle violation through defense counsel’s objection, notwithstanding the trial court’s erroneous ruling on the objection. The decision to press forward with the statement provides at least a colorable showing of ill will on the prosecutor’s part.
Finally, we cannot say that the error was obviated by evidence which was so overwhelming that the misconduct would have had little weight in the minds of the jurors. “In determining harmless error in the context of a Doyle violation, we consider the nature and extent of the comment in comparison with the strength of the evidence of the defendant’s guilt. . . .” State v. Murray, 285 Kan. 503, Syl. ¶ 9, 174 P.3d 407 (2008). With respect to the State’s case, the evidence hinged on the victim’s credibility; there was no physical evidence to support the charge. M.S. initially said that she had lied before, but this was the last time. Her father said she recanted her accusation. At trial, but for the judge, her live testimony might well have continued to be that nothing happened. Granted, the State still had the testimony of the others to whom M.S. had previously given a statement, but that evidence cannot be characterized as direct and overwhelming.
Perhaps more prejudicial for Kemble was that the Doyle statement directly addressed his theory of defense, i.e., voluntary intoxication. There was evidence to support the theory beyond Kemble’s own declaration that he was intoxicated. The victim’s mother said Kemble arrived at her house intoxicated. M.S. said Kemble was acting “weird,” yelling at the television. One of the detectives noted a strong odor of alcohol on Kemble after his arrest. It might stretch one’s imagination to believe that the State’s implication that Kemble’s intoxication theory was not true because he had been silent about it prior to trial and the trial court’s apparent stamp of approval on that implication had little weight in the minds of the jurors. Nevertheless, we will simply add this error to our cumulative error analysis.
Cumulative Error
Kemble argues that even if the errors he alleges on appeal do not individually support reversal, the cumulative effect of those errors denied him a fair trial. We evaluate cumulative error claims by determining “ ‘ “whether the totality of circumstances substantially prejudiced the defendant and denied [the defendant] a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.” ’ ” State v. Ellmaker, 289 Kan. 1132, 1156, 221 P.3d 1105 (2009) (quoting State v. Brown, 285 Kan. 261, 305-06, 173 P.3d 612 [2007]); accord Brinklow, 288 Kan. at 54.
Conceivably, reasonable people might differ in their assessment of whether either the judicial misconduct or the prosecutorial misconduct in this case, when viewed in isolation, requires reversal, i.e., whether the respective individual error was harmless. However, when the two errors are viewed together, the cumulative effect clearly denied Kemble his right to a fair trial. As noted above, that denial cannot be cured by declaring the evidence against the defendant to be overwhelming. Accordingly, we reverse Kemble’s conviction and remand for a new trial.
Defendant’s Age
Having determined that Kemble is entitled to a new trial on the charge of aggravated indecent liberties with a child, the other issues on appeal are moot, except to the extent that a resolution of another issue would impact any retrial. Kemble raised two issues relating to his age at the time of the offense, and he now contends our decision on those issues will dictate the severity level of the crime for which he can be retried. Accordingly, we will briefly address those issues.
Kemble was charged with aggravated indecent liberties with a child based upon an allegation that he engaged in lewd fondling or touching of a child who was under the age of 14 years. K.S.A. 21-3504(a)(3)(A). In the statute defining the crime, specifically under K.S.A. 21-3504(c), two separate levels of the offense can apply to the act which Kemble committed, depending upon whether he was age 18 years or older at the time of the offense: one a Kansas Sentencing Guidelines Act (KSGA) nondrug grid-box offense, i.e., a severity level 3 person felony; and the other an off-grid person felony. See State v. Bello, 289 Kan. 191, 198, 211 P.3d 139 (2009). Accordingly, “the defendant’s age at the time of the offense is an element of the crime if the State seeks to convict the defendant of the more serious, off-grid enhanced offense. [Citations omitted.]” State v. Reyna, 290 Kan. 666, 676, 234 P.3d 761 (2010).
In his brief, Kemble claimed that the State failed to charge him with the off-grid version of the offense, because the charging document omitted the element of the defendant’s age in the body of the complaint. In other words, the argument is that the complaint only charged the lesser, grid-box version of the offense, thereby depriving the court of jurisdiction to convict and sentence him for the more serious, off-grid offense. See State v. Belcher, 269 Kan. 2, 8, 4 P.3d 1137 (2000) (if crime not specifically stated in information or not lesser included offense of crime charged, court lacks jurisdiction to convict of the uncharged crime, regardless of evidence presented). In another issue, Kemble correctly asserted that the jury instructions omitted the element of defendant’s age, and he argued that, as a result, the facts actually found by the jury beyond a reasonable doubt only supported a conviction for the lesser grid-box version of the crime. See Bello, 289 Kan. at 200 (remanding for resentencing the convictions as the lesser, on-grid versions of the crimes); State v. Gonzales, 289 Kan. 351, 371, 212 P.3d 215 (2009) (case remanded for resentencing as a felony on the KSGA nondrug sentencing grid).
Now, with respect to the mootness question, Kemble argues that because he was only convicted of the lesser grid-box offense, a reversal of that conviction precludes a retrial on the higher degree, off-grid crime. He points to K.S.A. 21-3108(5), which provides: “In no .case where a conviction for a lesser included crime has been invalidated, set aside, reversed or vacated shall the defendant be subsequently prosecuted for a higher degree of the crime for which such defendant was originally convicted.” While Kemble’s arguments are seductive, the premise that he was charged with and convicted of the lesser degree of the crime is not supported by a majority of this court, as reflected in its recent opinions.
With respect to his challenge to the complaint, Kemble acknowledges our decision last year in State v. Gracey, 288 Kan. 252, 200 P.3d 1275 (2009). In addressing essentially the same issue, Gracey relied on a standard for reviewing defective complaint claims which was first manufactured from whole cloth in State v. Hall, 246 Kan. 728, 761, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). Gracey stated the relevant portion of the Hall rule to be as follows:
“When the charging document is challenged for the first time on appeal, the defendant must show that the alleged defect either: (1) prejudiced the defendant’s preparation of a defense; (2) impaired the defendant’s ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant’s substantial rights to a fair trial.” 288 Kan. at 254.
Applying that rule, Gracey found that the presence of the defendant’s date of birth in the complaint’s caption and the statement that the crime was an off-grid person felony in the statutory citation at the bottom of the complaint were sufficient to “demonstrate that Gracey was adequately informed of both the crime charged and the penalty.” 288 Kan. at 257. But cf. State v. Sanford, 250 Kan. 592, 601, 830 P.2d 14 (1992) (‘We have held that the citation to the statute cannot substitute to supply a missing element of the charge.”). The opinion then declared that Gracey “does not contend that the preparation of his defense or his rights to a fair trial were impaired, and the conviction has not been shown to affect any subsequent prosecution.” 288 Kan. at 257. In effect, Gracey found the complaint validly charged the higher degree, off-grid version of the felony.
Here, Kemble attempts to distinguish Gracey by asserting that he can make a showing that he was prejudiced in the preparation of his defense and that his right to a fair trial was impaired. Kemble points out that the only specific evidence of his age was elicited by defense counsel during Kemble’s direct examination. Had the de fense been put on notice that defendant’s age was an element of the crime, the defense would not have elicited the evidence. Then, because the State failed to prove Kemble’s age with any certainty, a sufficiency of the evidence claim could have been successful on appeal.
Kemble’s claim that he was not put on notice that his age was an element of the crime certainly has some appeal from a practical sense. Kemble’s year of birth was grouped under his name, along with the designation “W/M,” the last four digits of his SSN, a KDR number, and an LEO number. For most of the world, the relevance of the year of birth in the caption would appear to be to identify the defendant, rather than to specify an element of a charge recited later in the document.
Further, here the statutory citation at the bottom reads, “K.S.A. 21-3504(a)(3)(A)(c).” Presumably, the scrivener meant to cite to both subsection (a)(3)(A) and subsection (c). Nevertheless, the citation clarifies nothing for a defendant, because both the grid-box and the off-grid crimes are described in section (c). Therefore, the complaint presents a mixed signal: the stated elements describe the grid-box version of the crime, whereas the statutory citation section states that the charge is an off-grid person felony. In other words, the prosecutor made an error in one place or the other. Is a defendant to always presume that the error is in the recitation of the elements, instead of in the identification of the severity level? Does it make any difference when the State does not put on any evidence of the omitted element during its case-in-chief, thereby suggesting that it is prosecuting the lesser decree of the crime?
Nevertheless, we need not ruminate further on a defendant’s need for clairvoyance in reading a complaint. Gracey essentially held that an .identifying year of birth in the caption and a statement at the bottom of the complaint that the crime charged is an off-grid person felony are legally sufficient notice to a defendant that he or she is being charged with the more serious version of the crime. 288 Kan. at 257. This court has subsequently followed that conclusion. Reyna, 234 P.3d at 772-73 (“While the complaint failed to include the off-grid element in the individual counts charging the crimes, the complaint overall adequately charged him with the off-grid offenses.”); Gonzales, 289 Kan. at 369.
Therefore, although Kemble did make a specific claim of prejudice, unlike the appellants in Gracey, Gonzales, and Reyna, that claim is based upon a lack of notice that his age was an element of the crime charged, which is tantamount to saying that he did not have notice that he was charged with the off-grid crime. Because essentially identical complaints have been found to be legally valid in charging the off-grid crime, i.e., were found to have provided adequate notice of the missing element, Kemble’s claim of prejudice cannot save his defective complaint challenge.
Next, Kemble’s jury instruction argument has recently been undermined by our decision in Reyna, which was filed after oral arguments in this case. Reyna acknowledged that the district court erred in failing to instruct the jury on the element of the off-grid offense that requires the defendant to be age 18 years or older at the time of the offense. However, the opinion found, based in part on our prior decision in State v. Daniels, 278 Kan. 53, 91 P.3d 1147, cert. denied 543 U.S. 982 (2004), and the United States Supreme Court decision in Washington v. Recuenco, 548 U.S. 212, 165 L. Ed. 2d 466, 126 S. Ct. 2546 (2006), that the failure to instruct on an element of a crime can be subject to the harmless error rule. “ ‘[Wjhere a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.’ ” Daniels, 278 Kan. at 62 (quoting Neder v. United States, 527 U.S. 1, 17, 144 L. Ed. 2d 35, 119 S. Ct. 1827 [1999]). Given that Reyna had testified that he was 37 years old in response to his own counsel’s questioning, the Reyna majority found that the failure to instruct on the age element was harmless. Therefore, Reyna’s conviction for the off-grid version of the offenses was affirmed, in contrast to the holding in prior cases where no evidence of age had been admitted at trial. See, e.g., State v. Morningstar, 289 Kan. 488, 494-95, 213 P.3d 1045 (2009); Bello, 289 Kan. at 200; Gonzales, 289 Kan. at 371.
Here, Kemble testified that he was 34 years old at the time of trial, and the victim’s mother testified that she thought Kemble was 31 or 32 years old. There was no other conflicting testimony that would call into doubt the fact that Kemble was over 18 years old at the time of the offense. Under the rationale of the Reyna majority, Kemble’s conviction was for the off-grid version of aggravated indecent liberties with a child. Therefore, a retrial on that higher degree of the offense is not precluded by K.S.A. 21-3108(5).
Kemble submitted a letter of additional authority under Supreme Court Rule 6.09 (2009 Kan. Ct. R. Annot. 47), addressing Reyna’s impact on this case. Kemble attempted to avoid the Reyna result by first arguing that the United States Supreme Court got it wrong because two judicial findings of fact should not be the constitutional equivalent of one finding of fact by a jury. A majority of this court has disagreed and chosen to follow the federal precedent.
Next, Kemble points out that he made the additional argument that Section 5 of the Kansas Constitution Bill of Rights provides more protection than the United States Constitution when it declares: “The right of trial by jury shall be inviolate.” The suggestion is that a violation of the right to a jury trial should be structural error under the state constitution even though it is not structural error under the federal Constitution. While Kemble’s initial brief mentioned that he was claiming error under the Kansas Constitution, it did not fully develop the ramifications of interpreting our state constitution differently than the federal Constitution. Moreover, the Reyna majority chose not to find structural error under state law, even though Recuenco left open that possibility. 548 U.S. at 218 n.l; see also Reyna, 234 P.3d at 779 (Johnson, J., dissenting).
Finally, Kemble argues that, even if harmless error is applicable here, we should not find that the evidence supported applying it in his case. He asserts that the only specific evidence of his age was elicited by his own attorney as a direct result of the State’s error in failing to charge the age element in the complaint. Therefore, Kemble contends that the State should not gain the benefit of the harmless error doctrine when it caused the problem by filing a defective complaint. There is a ring of fairness to the argument that the State should not be permitted to sandbag a defendant into offering inculpatory evidence by omitting an element from the complaint, failing to offer any evidence on the omitted element in its case-in-chief, and then declaring “gotcha” when the defendant inadvertently and unknowingly incriminates himself or herself. Nevertheless, that is exactly what was permitted in Reyna, and that is the law in this state.
Reversed and remanded for a new trial.
Davis, C.J., not participating.
Malone, J., assigned. | [
-80,
-22,
-116,
-65,
25,
33,
42,
-68,
19,
-29,
54,
-13,
-85,
-15,
5,
123,
-45,
127,
85,
97,
-55,
-13,
-122,
-63,
-2,
-13,
-78,
86,
-13,
78,
-17,
-36,
44,
112,
-38,
117,
98,
-38,
-31,
84,
-126,
-111,
-88,
-24,
19,
10,
32,
107,
87,
14,
49,
30,
-13,
10,
24,
-37,
104,
108,
91,
-67,
80,
57,
-101,
-107,
-99,
16,
-93,
54,
-97,
-91,
-8,
54,
92,
17,
0,
-24,
-13,
-92,
-126,
116,
101,
-117,
-116,
99,
-30,
-96,
13,
-25,
-67,
-55,
63,
126,
-75,
-89,
-104,
96,
73,
108,
-73,
-33,
34,
20,
-82,
120,
-13,
-34,
113,
100,
-90,
-113,
-108,
-79,
-115,
40,
-58,
-78,
-61,
37,
1,
117,
-49,
44,
76,
-44,
59,
-69,
-114,
-10
] |
Per Curiam-.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Jeffrey M. Johns, of Olathe, an attorney admitted to the practice of law in Kansas in 2004.
On April 26, 2010, the office of the Disciplinaiy Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent did not file an answer to the formal complaint. The respondent and the office of the Disciplinary Administrator entered into a joint stipulation of facts on June 9, 2010. The respondent filed a proposed probation plan on that same date. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on June 10, 2010, where the respondent was personally present. The hearing panel determined that the respondent violated KRPC 8.4(b) (2010 Kan. Ct. R. Annot. 603) (misconduct). 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
“2. In 1994, the Respondent was arrested for driving under the influence of alcohol. Thereafter, he entered into a diversion agreement for that charge. It appears that the Respondent successfully completed the terms and conditions of diversion.
“3. In 2007, the Respondent was arrested for driving under the influence of alcohol for a second time. On June 21, 2007, the Respondent was convicted of driving under the influence of alcohol in Jackson County, Missouri. As a result of the Respondent’s conviction, the Respondent was placed on probation.
“4. On May 7,2008, while on probation in Jackson County, Missouri, a deputy from the Johnson County, Kansas, Sheriffs Department arrested the Respondent for driving under the influence of alcohol, for a third time. Following his arrest, the Respondent submitted to a breath alcohol concentration test. The Respondent’s breath alcohol concentration was .123 grams of alcohol per 210 liters of breath.
“5. Because of the Respondent’s previous record, the Johnson County District Attorney’s office charged the Respondent with felony driving under the influence of alcohol.
“6. On November 14, 2008, the Respondent entered a plea of guilty to the charge of felony driving under the influence of alcohol. On January 15, 2009, the Court sentenced the Respondent to serve 14 days in jail and 76 days of house arrest and participate in one year of probation. The Respondent served his sentence and successfully completed the probation.
“7. In early Febraaiy, 2009, the Respondent was terminated from his in-house counsel employment with Embarq. At that time, the general counsel at Embarq informed the Respondent that he had sought and obtained counsel from the law firm, Stinson Morrison & Hecker. The general counsel instructed the Respondent that his felony conviction would be reported to the Disciplinary Administrator’s office.
“8. On February 13, 2009, the Respondent self-reported the criminal conviction to the Disciplinary Administrator’s office.
“9. On February 18, 2009, the Respondent entered into a monitoring agreement with the Kansas Lawyers Assistance Program. Since that time, the Respondent has been monitored by David Kirk, a volunteer attorney with the Kansas Lawyers Assistance Program.
“10. The Respondent has not consumed any alcohol since his third arrest for driving under the influence of alcohol, on May 7, 2008. Beginning May 14, 2008, as a condition of his bond, the Respondent began attending AA meetings. The Respondent continues to attend AA meetings four or five times per week. Additionally, during this time period, the Respondent has also participated in a lawyers support group in Johnson County, Kansas. Finally, the Respondent participated in five or six individual counseling sessions.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact and the written joint stipulation of the parties, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.4(b), as detailed below.
“2. ‘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 Hearing Panel concludes that the Respondent’s conviction of felony driving under the influence of alcohol adversely reflects on his fitness as a lawyer in other respects, in violation of KRPC 8.4(b).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“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 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.
“Duty Violated,. The Respondent violated his duty to the public to maintain his personal integrity.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to the public and the legal profession.
“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 the following aggravating factors present:
“A Pattern of Misconduct. The Respondent has been arrested three times for driving under the influence of alcohol. The Respondent’s conduct amounts to a pattern of misconduct.
“Illegal Conduct, Including that Involving the Use of Controlled Substances. The Respondent engaged in illegal conduct — he was arrested, charged with, and convicted of felony driving under the influence of alcohol.
“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: [Footnote: The Respondent also argued that his chemical dependency is a mitigating factor. However, a chemical dependency is a mitigating factor only when (1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability; (2) the chemical dependence or mental disability caused the misconduct; (3) the respondent’s recoveiy from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely. In this case, the Respondent failed to establish the four requirements in order for chemical dependency to be a mitigating factor.]
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Absence of a Dishonest or Selfish Motive. The Respondent’s misconduct was not motivated by dishonesty or selfishness.
“Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Model Rules of Professional Conduct. The Respondent is an alcoholic. The Respondent’s alcoholism contributed to his misconduct.
“The Present and Past 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. The Respondent fully cooperated in the hearing and admitted his transgressions.
“Remorse. The Respondent expressed genuine remorse to having engaged in the misconduct and having brought disrepute to the legal profession.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.
‘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, the public, or the legal system.’
“RECOMMENDATION
“The Deputy Disciplinary Administrator recommended that the Respondent be suspended from the practice of law for a [period] of two years. The Deputy Disciplinary Administrator further recommended that the suspension be made retroactive to the date of the Respondent’s temporary suspension, August 19, 2009. Finally, the Deputy Disciplinary Administrator recommended that the Respondent be required to undergo a reinstatement hearing pursuant to Kan. Sup. Ct. R. 219. The Respondent requested that he be placed on probation, pursuant to his proposed plan of probation.
“The Hearing Panel concludes that the Respondent failed to comply with Kan. Sup. Ct. R. 211(g)(3). As such, under the rules, the Hearing Panel is not permitted to consider probation in this case. If the Respondent had complied with Kan. Sup. Ct. R. 211(g)(3), the Hearing Panel would not have recommended probation because it is not in the best interests of the legal profession and the citizens of the State of Kansas to place the Respondent on probation. First, the Respondent has been convicted of a felony. Second, the Respondent has not properly addressed any circumstances or triggers that led to his alcoholism. While the Respondent has achieved a significant period of remission, he has not taken sufficient steps to ensure that he will not relapse.
“Twice recently, the Kansas Supreme Court has been called upon to discipline attorneys for convictions of felony driving under the influence of alcohol. See In re Laskowski, 282 Kan. 710, 147 P.3d 135 (2006), and In re O’Neill, 285 Kan. 474, 172 P.3d 1179 (2007). In In re Laskowski, the Respondent presented with nearly identical facts. However, in that case, the Respondent continued to con sume alcohol following his arrest. The Court indefinitely suspended Mr. Laskowsld’s license to .practice law.
“In In re O’Neill, in addition to his conviction for felony driving under the influence of alcohol, the Respondent also failed [to] disclose a number of arrests and convictions on his Petition for Admission to the Bar of the State of Kansas by Written Examination. In that case, the Court also indefinitely suspended the Respondent’s license to practice law.
“Based upon the findings of fact, conclusions of law, the Standards listed above, and because the Respondent has maintained his sobriety for two years, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law for two years (rather than indefinite suspension). The Hearing Panel further recommends that the suspension be made retroactive to the date of the temporaiy suspension, August 19, 2009. Finally, the Hearing Panel recommends that the Court require that the Respondent undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219, to determine whether the Respondent should be reinstated.
“At the reinstatement hearing, the Hearing Panel recommends that the Respondent be required to present evidence that he has been evaluated by a drug and alcohol treatment provider who is experienced in evaluating professionals and who is approved by KLAP. The Hearing Panel is concerned that, to date, the Respondent has not determined whether there is a cause for his alcoholism, whether there is a particular trigger that he needs to know and avoid, or whether there are any circumstances that the Respondent needs to address to avoid a relapse. The Hearing Panel recommends that the Respondent be required to establish that he has complied with any and all treatment recommendations made by the drug and alcohol treatment provider who conducts the evaluation. Finally, the Hearing Panel recommends that the Respondent be required to establish that he has remained sober throughout the period of suspension.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
On July 23,2010, the respondent filed a statement that he would file no exceptions to the final hearing report.
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. In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003). Attorney misconduct must be established by clear and convincing evidence. In re Patterson, 289 Kan. 131, 133-34, 209 P.3d 692 (2009); Supreme Court Rule 211(f) (2010 Kan. Ct. R. Annot. 327). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Patterson, 289 Kan. at 134 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
In this case, the evidence before the hearing panel establishes the charged misconduct of the respondent by clear and convincing evidence and supports the hearing panel’s findings that the respondent violated KRPC 8.4(b).
Discipline
With respect to the discipline to be imposed, the hearing panel’s recommendation that the respondent be suspended from the practice of law for a period of 2 years is advisory only and does not prevent the court from imposing discipline other than that recommended by the hearing panel or the Disciplinary Administrator. Supreme Court Rule 212(f) (2010 Kan. Ct. R. Annot. 344).
As we review the findings that support the hearing panel’s recommendations, of particular note is the panel’s finding that there was no evidence that the respondent was chemically dependent. Nor is there medical evidence that the respondent’s behaviors were impacted by chemical dependency. Consequently, we do not consider chemical dependency to be a mitigating factor in this case. There are other mitigating circumstances, however.
As we weigh both the aggravating and mitigating circumstances of this case, we are persuaded that the hearing panel and Disciplinary Administrator’s recommendations, although not binding, are appropriate. The respondent has not practiced law since August 19, 2009, and during that time he has maintained sobriety and sought support from attorney and other support groups. These actions, his lack of prior discipline, his remorse, and his cooperation with the Kansas Lawyers Assistance Program and the Disciplinary Administrator distinguish the respondent’s circumstances from those in In re Laskowski, 282 Kan. 710, 147 P.3d 135 (2006), and In re O’Neill, 285 Kan. 474, 172 P.3d 1179 (2007), which were discussed by the hearing panel. In addition, the circumstances of this case are distinguishable from those in our recent decision of In re Frahm, No. 103,535, filed November 19, 2010. In that case, in suspending the respondent for a 3-year period, we noted that the respondent had committed “multiple transgressions,” was driving while highly intoxicated, and caused both personal injury and property damage. The respondent then left the scene of an accident. In comparison, while the respondent’s actions in this case had the potential of resulting in a similar situation, fortunately his actions were not as extreme.
Based on the findings of fact, conclusions of law, the Standards listed above, and the mitigating circumstances present in this case, the court adopts the recommendations of the hearing panel that a 2-year suspension is appropriate. Because his license to practice law was suspended on August 19, 2009, and in consideration of the action he has taken since that date to maintain sobriety, it is appropriate that the order of suspension be made retroactive to that date.
Nevertheless, as did the hearing panel and the Disciplinary Administrator, we conclude there should be a hearing before the respondent’s license to practice law is reinstated. We share the hearing panel’s concern that the respondent has not fully addressed the circumstances that led to his repeated abuse of alcohol. At a Supreme Court Rule 219 (2010 Kan. Ct. R. Annot. 370) hearing, it is important that the respondent present an evaluation by a professional with experience in evaluating lawyers and other professionals and that this professional have determined that the respondent has received adequate treatment and rehabilitation. In addition, the respondent is required to establish the other factors delineated in Supreme Court Rule 219(f).
It Is Therefore Ordered that Jeffrey M. Johns be suspended from the practice of law in the state of Kansas for a period of 2 years to be effective from August 19, 2009, which was the date of his temporary suspension, in accordance with Supreme Court Rule 203(a)(2) (2010 Kan. Ct. R. Annot. 276).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2010 Kan. Ct. R. Annot. 370), and in the event the respondent would seek reinstatement, he shall com ply with Supreme Court Rule 219 and present a professional evaluation.
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.
Merlin G. Wheeler, District Judge, assigned. | [
-112,
-54,
-35,
-100,
-86,
32,
58,
52,
81,
-37,
-9,
115,
-19,
-22,
13,
59,
-5,
125,
-43,
121,
-59,
-74,
119,
-64,
102,
-5,
-8,
86,
-76,
79,
108,
-4,
73,
-16,
-118,
53,
6,
-54,
-79,
-34,
-114,
4,
9,
-16,
91,
-54,
-80,
107,
19,
11,
49,
31,
-29,
46,
83,
-53,
77,
108,
-37,
-83,
-127,
-16,
-39,
-107,
107,
22,
-94,
20,
-104,
-123,
-44,
63,
-104,
57,
41,
-24,
-13,
-78,
-126,
-76,
15,
-119,
-116,
102,
98,
-95,
17,
-121,
-92,
-116,
12,
-70,
29,
39,
-103,
89,
75,
-116,
-106,
-1,
116,
20,
47,
-4,
104,
69,
23,
104,
6,
-49,
-80,
-111,
78,
100,
-58,
11,
-17,
-27,
32,
101,
-59,
-25,
86,
-42,
114,
27,
-117,
-75
] |
The opinion of the court was delivered by
Rosen, J.:
The Finney County Water Users Association (FCWUA) is a private Kansas corporation originally chartered in 1930. One purpose of the corporation is to provide the shareholders with irrigation water by maintaining a system of ditches and canals that feed water from the Arkansas River to a series of irrigation laterals north of Garden City.
FCWUA employs a full-time “ditch rider,” whose job is to maintain the ditches and canals. The ditch rider is also responsible for directing water into the laterals for deliveiy to the shareholders. Leonard Morehouse was the ditch rider from March 1998 through March 2003. He was hired with the understanding that he would work a minimum of 40 hours a week. He usually worked longer hours in the summer, when he might work as many as 100 hours in a week, than in the winter, when he might work as few as 23 hours in a week.
Defendant Harold Knoll was elected president of FCWUA in 1995 and has remained in office since that time. Knoll supervised Morehouse and gave him weekly work assignments. In December 2001, FCWUA amended its bylaws to allow the president and other board members to employ ditch association employees privately and to require the employing board member to document any such employment.
Witnesses disagreed on the amount of time expended and the nature of the work performed by Morehouse on both FCWUA duties and for Knoll’s private enterprises. There was disputed testimony that Morehouse worked on Knoll’s farm for some 30 to 45 days during the summer of 2002 and was not maintaining ditches during that time. Knoll testified that Morehouse “pitched in and helped” on Knoll’s farm several times a week “after he had his full days work for the ditch company,” but that he never took More-house away from his job duties for the ditch company to work on his farm. Some of Morehouse’s work on Knoll’s farm was performed without compensation and some was compensated in labor exchange, beef, and a check for $500. As stated above, the corporate bylaws were amended to require maintaining records of the use of corporation employees for private purposes. Knoll nevertheless did not keep records of the time that Morehouse devoted to working on Knoll’s farm and the time that Morehouse worked on the irrigation system, and there was testimony that Knoll refused to keep such records.
There was testimony that the plaintiffs and other shareholders experienced both flooding and lack of irrigation water because of poor canal maintenance. The plaintiffs alleged they lost crops and were forced to find other sources of irrigation water.
In May 2004, the plaintiffs filed suit against Knoll, seeking damages for breach of a fiduciary duty and seeking his removal as an officer and director of the corporation. After a trial to the bench, the district court found that the plaintiffs had failed to establish a prima facie case and had failed to demonstrate that Knoll’s conduct resulted in damages to the plaintiffs. The plaintiffs took a timely appeal to the Court of Appeals. The Court of Appeals affirmed the resulting judgment in favor of Knoll, which found that, while the plaintiffs had succeeded in estabhshing a prima facie case, the factual findings by the district court nevertheless supported judgment for Knoll. Becker v. Knoll, 40 Kan. App. 2d 1049, 199 P.3d 786 (2008).
This court granted the plaintiffs’ petition for review and subsequently granted a motion to substitute William Becker, as special administrator of the estate, for Norman Becker, who had passed away.
The first issue before us relates to the evidentiaiy burdens that the law places on the opposing parties. The district court found that the plaintiffs failed to make a prima facie case for self-dealing on Knoll’s part. The Court of Appeals reversed this finding but held the error was harmless, and we agree in part and reverse in part, finding the error was not harmless.
The proper standard for reviewing whether a plaintiff has presented a prima facie case is de novo. We have held that “[p]rima facie evidence is evidence sufficient to sustain a verdict in favor of the issue it supports, even though it may be contradicted by other evidence.” Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, Syl. ¶ 10, 216 P.3d 170 (2009). In Frick, this court considered whether the defendant had established a prima facie case for terminating a water right. The court examined the evidence in the record and concluded it was sufficient to meet statutory requirements for a prima facie case. See 289 Kan. at 708. This analysis is consonant with de novo review. The reviewing court does not weigh the evidence to find the more meritorious position but merely determines whether the evidence exists to establish the position in the first place. The Court of Appeals correctly held that determining whether a plaintiff presented a prima facie case is a matter of law subject to de novo review. Becker, 40 Kan. App. 2d at 1052-53.
The district court and the Court of Appeals found that, in a suit alleging a breach of fiduciary duties by a corporate officer, the plaintiff has the burden of establishing a prima facie case of the breach. If the plaintiff succeeds in meeting this obligation, the burden shifts to the defendant to show by clear evidence that the defendant acted in fairness and good faith to the corporation. This analysis is correct.
We have previously held:
“Any unfair transaction induced by a fiduciary relationship between the parties gives rise to a liability with respect to unjust enrichment of the fiduciary. Where such transaction is attacked, the burden of proof is on the fiduciary to establish the fairness of the transaction, and to this end he must fully disclose the facts and circumstances, and affirmatively show his good faith. [Citations omitted.] Where the fairness of the transaction is challenged, there must be an affirmative showing of fairness and good faith, the burden being upon the parties seeking to sustain such transactions to prove this by clear and satisfactory evidence. [Citations omitted.]” Newton v. Homblower, Inc., 224 Kan. 506, 518, 582 P.2d 1136 (1978).
In Richards v. Bryan, 19 Kan. App. 2d 950, 965, 879 P.2d 638 (1994), our Court of Appeals explained the burden-shifting this way:
“Newton requires a complaining party to offer more than a bald allegation of impropriety, while still assigning the ultimate burden of proof to the fiduciary. This somewhat confusing shift in the burden of proof was very well explained in Cookies Food Products v. Lakes Warehouse, 430 N.W.2d 447 (Iowa 1988). In Cookies, the plaintiff was first required to make out a prima facie showing of self-dealing. After that was established, the burden then shifted to the defendant to prove that its actions were done in good faith. After the defendant presented its evidence, the plaintiff was then afforded tire opportunity to counter with rebuttal arguments. 430 N.W.2d at 453.”
Two concepts underlie this shift in the burden of persuasion. The first is that a director of a corporation owes a high fiduciary duty to the other stockholders of the corporation. In re Hesston Corp., 254 Kan. 941, 982, 870 P.2d 17 (1994). “The duty of loyalty requires that the best interests of the corporation and its shareholders take precedence over any self-interest of a director, officer, or controlling shareholder that is not shared by the stockholders generally. [Citations omitted.]” McCall v. Scott, 239 F.3d 808, 824 (6th Cir. 2001).
Other jurisdictions have elaborated on this fiduciary duty:
“ ‘[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him. . . .’ [Citation omitted.]” Cadle Co. v. D'Addario, 268 Conn. 441, 455, 844 A.2d 836 (2004).
“Corporate directors must act in their shareholders’ best interests and not enrich themselves at their expense. [Citations omitted.] The law enforces this duty of loyalty by subjecting certain actions to unusual scrutiny. Where a director acts while under an incentive to disregard the corporation’s interests, she must show her utmost good faith and tire most scrupulous inherent fairness of the bargain.’ In re PSE & G Shareholder Litigation, 173 N.J. 258, 801 A.2d 295, 307-308 (2002) (quoting Weinberger v. UOP, Inc., 457 A.2d 701, 710 [Del.1983]); Brundage v. New Jersey Zinc Co., 48 N.J. 450, 226 A.2d 585, 598-99 [1967]).” VFB LLC v. Campbell Soup Co. 482 F.3d 624, 634-35 (3d Cir. 2007).
Kansas sets a higher standard or stricter fiduciary duty for directors and officers of corporations than some jurisdictions and imposes a very strict fiduciaiy duty on officers and directors of a corporation to act in the best interests of the corporation and its stockholders. Burcham v. Unison Bancorp, Inc., 276 Kan. 394, 416, 77 P.3d 130 (2003); Miller v. Foulston, Siefkin, Powers & Eberhardt, 246 Kan. 450, 467, 790 P.2d 404 (1990).
The second concept underlying the burden-shifting approach is the business judgment rule. This rule is a presumption that in making business decisions not involving direct self-interest or self-dealing, corporate directors act on an informed basis, in good faith, and in the honest belief that their actions are in the corporation’s best interest. The party challenging the business decision has the burden to establish facts rebutting the presumption. Kansas Heart Hospital v. Idbeis, 286 Kan. 183, 209, 184 P.3d 866 (2008).
The business judgment rule provides directors with a “powerful presumption” “that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.” In re Merck & Co. Securities & ERISA Litigation, 493 F.3d 393, 402 (3d Cir. 2007) (citing Rales v. Blasband, 634 A.2d 927, 933 [Del. 1993]; Aronson v. Lewis, 473 A.2d 805, 812 [Del. 1984]). The business judgment rule “shield[s] internal business decisions from second-guessing by the courts. . . . Under the rule, when business judgments are made in good faith based on reasonable business knowledge, the decision makers are immune from liability from actions brought by others who have an interest in the business entity.” Green Party v. Hartz Mountain Ind., 164 N.J. 127, 147, 752 A.2d 315 (N.J. 2000) (citing Courts at Beachgate v. Bird, 226 N.J. Super. 631, 641, 545 A.2d 243 [1988]; Sarner v. Sarner, 62 N.J. Super. 41, 60, 162 A.2d 117 [1960]).
Because the business judgment rule is a rebuttable presumption, it places an initial burden on the party challenging a corporate decision to demonstrate the decisionmaker’s “self-dealing or other disabling factor.” If a challenger sustains that initial burden, then the presumption of the rule is rebutted, and the burden of proof shifts to the defendants to show that the transaction was, in fact, fair to the company. In re PSE & G Shareholder Litigation, 173 N.J. at 277.
“ ‘The threshold inquiry in assessing whether a director violated his duty of loyalty is whether the director has a conflicting interest in the transaction. Directors are considered to be interested if they either appear on both sides of a transaction ... or expect to derive any personal financial benefit from it in the sense of self-dealing, as opposed to a benefit which devolves upon the corporation or all stockholders generally.’ [Citation omitted.]” Matter of Seidman, 37 F.3d 911, 934 (3d Cir. 1994).
Once the business judgment rule is rebutted, “the burden then shifts to the director defendants to demonstrate that the challenged act or transaction was entirely fair to the corporation and its shareholders.” (Emphasis added.) In re Walt Disney Co. Derivative Litigation, 906 A.2d 27, 52 (Del. 2006). “If the [plaintiff is able to rebut the business judgment presumption], the burden shifts to the defendant ... to prove the ‘entire fairness’ of the transaction to the . . . plaintiff. [Citations omitted.]” (Emphasis added.) Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 361 (Del. 1993).
If the plaintiffs in the present case made a prima facie showing of self-dealing, then the burden of proof shifted to Knoll to prove that his employment of Morehouse was entirely fair to the corporation. The Court of Appeals turned to Black’s Law Dictionary 1390 (8th ed. 2004) for a definition of self-dealing, which is: “Participation in a transaction that benefits oneself instead of another who is owed a fiduciary duty. For example, a corporate director might engage in self-dealing by participating in a competing business to the corporation’s detriment.” See Becker, 40 Kan. App. 2d at 1053. Other courts have also utilized this definition of self-dealing. See Dingess v. Smith, 2010 WL 364456, at *4 (Ohio App.); Eagers v. Burrows, 191 P.3d 9, 16 (Utah 2008).
The district court found that each of the allegations of impropriety on the part of Knoll was rebutted and the plaintiffs had therefore failed to sustain their burden of presenting a prima facie case. The Court of Appeals disagreed. It properly pointed to the considerable testimony that Knoll had employed Morehouse on his farm, that Morehouse had worked on Knoll’s farm and not on the irrigation system for extensive stretches of time over the years of his FCWUA employment, that Knoll failed to maintain records of Morehouse’s work for him and for FCWUA as required by corporate bylaws, and that the result was poor maintenance of the system and damages to land and crops. Although the district court found the evidence rebutted and unpersuasive, the Court of Appeals concluded that the evidence sufficed to establish a prima facie case of self-serving conduct on Knoll’s part. Becker, 40 Kan. App. 2d at 1054-55.
This analysis is correct. Under the Black’s Law Dictionary definition of self-serving conduct, the plaintiffs’ evidence was sufficient to sustain a verdict in favor of the plaintiffs’ claim of self- serving breach of a fiduciary duty, even though it may have been contradicted by other evidence.
Because it found that the plaintiffs failed to make a prima facie case, the district court never addressed whether Knoll proved by clear and satisfactory evidence that he acted in fairness and good faith. The Court of Appeals held, however, that the specific findings by the district court demonstrated that it considered every allegation of impropriety to lack credibility or to have been rebutted. These findings were supported by the record and sufficed to affirm the judgment for Knoll. 40 Kan. App. 2d at 1056-57. It is this conclusion that is in question on review, and it goes specifically to the standard of review.
The district court found:
“The Plaintiff has the duty to first establish that the personal relationship or business relationship [between] the Corporation’s employee and the Corporation’s President were of such a nature as to violate their obligations to the Corporations [sic]. The mere existence of a personal or business relationship will not in and of itself prove a violation of their duties to the Corporation.”
The district court also found:
“The plaintiffs in this matter have failed to present to the court a prima facie case sufficient to require the defendant to rebut the allegation. Further, the totality of the evidence presented has failed to show to the court that it is more probably true than not true that any damages were caused to the defendants by the neglect, willful or otherwise, of the defendant in his duties owed to the Corporation in the supervision of the ditch [rider] or any private use of the ditch [rider] on Corporation time.”
The Court of Appeals considered “whether Knoll met his burden of rebutting the Beckers’ prima facie case.” 40 Kan. App. 2d at 1056. The Court of Appeals then considered the evidence introduced by both parties and determined that there was evidence supporting the district court conclusion that the plaintiffs had failed to prove their case. To find otherwise, the Court of Appeals reasoned, would require it to reweigh the evidence. 40 Kan. App. 2d at 1057-58.
Two flaws appear in the Court of Appeals rationale. First, the district court did not analyze whether Knoll had proved good faith; rather, it analyzed whether the plaintiffs had proved damages re- suiting from self-serving conduct. The shift in the burden of proof could change the conclusion reached by the factfinder. Knoll was required to keep employment records for Morehouse; he failed to do so. Instead of the plaintiffs having to prove that damages occurred because Morehouse was working privately for Knoll, Knoll should have had to prove by clear and satisfactory evidence that his private use of Morehouse did not interfere with his performance in overseeing the irrigation system.
The district court specifically found: “Although no records were kept or required of [Morehouse’s] working hours there was no evidence presented to indicate that Morehouse did not work his required hours at all times.” Under a proper application of the burden of proof, the plaintiffs would not be required to show that Morehouse did not work his required hours; rather, Knoll would be required to present evidence showing that Morehouse actually worked his required hours.
As an aside, we note that counsel for Knoll informed the court that the record-keeping requirement applied only to work performed during corporate-employment hours. A review of the minutes of the December 8, 2001, meeting indicates otherwise. If, as Knoll maintains, there were no fixed employment hours for the ditch rider, then it would be impossible in any event to determine which hours Morehouse worked for Knoll on corporate time.
The second problem with the opinion below is that the Court of Appeals applied a substantial competent evidence standard to reviewing the district court factual conclusions. While it is true that the record contained evidence supporting the factual findings by the district court, those findings were made in the context of the wrong burden of proof. The Court of Appeals should have applied a de novo standard to review whether the district court properly applied the law — the shifted burden of proof — to the facts. See Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007) (appellate review of district court application of law to facts is unlimited).
The Court of Appeals noted that the district court “found no credible evidence of wrongful self-dealing by Knoll.” (Emphasis added.) 40 Kan. App. 2d at 1057. This language suggests that the plaintiffs were required not only to make a prima facie case of self-dealing but were also required to prove that the self-dealing was wrongful before the burden shifted to the defendant. Such a conclusion is incorrect and illustrates the problems with the decisions that led to this review.
The standards applied in both the courts below were erroneous. The judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. The judgment of the district court is reversed and the case is remanded to the district court with instructions to reconsider its findings of fact and conclusions of law in light of the properly allocated burden of proof.
Davis, C.J., not participating.
Michael F. Powers, District Judge, assigned. | [
116,
110,
-7,
-51,
12,
-56,
34,
26,
89,
-69,
-28,
83,
-29,
-53,
0,
121,
-25,
61,
-47,
107,
-57,
-78,
55,
-56,
-46,
-5,
-7,
-49,
-70,
79,
-12,
-41,
77,
16,
10,
-43,
-26,
-128,
79,
-36,
-90,
6,
11,
-15,
-39,
-62,
52,
107,
70,
79,
53,
-115,
-13,
42,
29,
98,
45,
36,
-17,
37,
81,
-15,
-86,
-115,
95,
4,
16,
-124,
-104,
-125,
-56,
47,
-112,
49,
40,
104,
115,
-90,
-106,
117,
7,
-103,
12,
34,
99,
2,
-111,
-17,
-20,
-103,
12,
-37,
-115,
-89,
-104,
88,
115,
-116,
-74,
-99,
122,
22,
6,
124,
-20,
-123,
95,
-20,
3,
-113,
-10,
-125,
-115,
-28,
-124,
-122,
-17,
3,
16,
97,
-49,
-30,
79,
71,
114,
31,
-114,
-111
] |
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Stephen J. Jones, of Wichita, an attorney admitted to the practice of law in Kansas in 1968.
On September 11, 2009, 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 failed to file an answer to the formal complaint. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on December 1, 2009. The respondent failed to appear at the hearing on the formal complaint. The hearing panel determined that the respondent violated KRPC 1.4(a) (2009 Kan. Ct. R. Annot. 443) (communication); 1.16(d) (2009 Kan. Ct. R. Annot. 522) (terminating representation); 5.5(a) (2009 Kan. Ct. R. Annot. 580) (unauthorized practice of law); 8.1(b) (2009 Kan. Ct. R. Annot. 594) (bar admission and disciplinary matters); 8.4(c) (2009 Kan. Ct. R. Annot. 602) (misconduct); and Supreme Court Rule 207(b) (2009 Kan. Ct. R. An-not. 303) (failure to cooperate in disciplinary investigation); Supreme Court Rule 211(b) (2009 Kan. Ct. R. Annot. 321) (failure to file answer in disciplinary proceeding); and Supreme Court Rule 218(a) (2009 Kan. Ct. R. Annot. 361) (failure to notify clients upon suspension). 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
“DA10611
Representation of Mona Carthel
“2. The Respondent represented Mona Carthel in a worker’s compensation case. Before the Administrative Law Judge, the Respondent received a favorable judgment in behalf of Ms. Carthel. Thereafter, the employer appealed the judgment to the Worker’s Compensation Board of Appeals.
“3. While the appeal was pending, the Kansas Supreme Court decided Casco v. Armour Sunft-Eckrich, 283 Kan. 508 (2007). In Casco, the Court reversed a case that established precedent for Ms. Carthel’s case. Based upon Casco, the Worker’s Compensation Board of Appeals ruled against Ms. Carthel and, as a result, severely reduced her recovery amount.
“4. The Respondent appealed the Worker’s Compensation Board of Appeals’ decision to the Kansas Court of Appeals. The parties briefed the case and the Court scheduled the case for oral argument on July 30, 2008.
“5. As a result of a disciplinary case, on June 27, 2008, the Kansas Supreme Court indefinitely suspended the Respondent from the practice of law. Additionally, the Court ordered the Respondent to comply with Kan. Sup. Ct. R. 218. In re Jones, 286 Kan. 544, 556 (2008).
“6. Kan. Sup. Ct. R. 218 provides:
‘In the event any attorney licensed to practice law in Kansas shall hereafter be disbarred or suspended from the practice of law pursuant to these Rules, or shall voluntarily surrender his or her license, such attorney shall forthwith notify in writing each client or person represented by him or her in pending matters, of his or her inability to undertake further representation of such client after the effective date of such order, and shall also notify in writing such client to obtain other counsel in each such matter.
As to clients involved in pending litigation or administrative proceedings, such attorney shall also notify in writing the appropriate court or administrative body, along with opposing counsel, of such inability to further proceed, and shall file an appropriate motion to withdraw as counsel of record.’
“7. Following the Respondent’s suspension from the practice of law, on June 30, 2008, die Kansas Court of Appeals ordered the Respondent to inform Ms. Carthel that she must notify the Court in writing prior to July 16, 2008, whether she wished to seek substitute counsel or proceed pro se.
“8. Despite the Court’s order, the Respondent did not contact Ms. Carthel regarding the Court’s order. The Respondent failed to withdraw from his representation of Ms. Carthel before the Kansas Court of Appeals.
“9. On July 22, 2008, the Kansas Court of Appeals issued a second order. In that order, because the Respondent failed to respond to the June 30,2008, order, Ms. Carthel’s case was removed from the oral argument docket and was placed on the summary calendar docket.
“10. On August 12, 2008, the Kansas Court of Appeals forwarded a copy of its June 30, 2008, and July 22, 2008, orders to the Disciplinary Administrator’s office. As a result, the Disciplinary Administrator’s office docketed a complaint for investigation. On October 1, 2008, the Disciplinary Administrator wrote to the Respondent, informed him that a complaint had been docketed, and directed him to provide a written response within 20 days. The Respondent never provided a written response to the complaint.
“11. On September 12, 2008, the Kansas Court of Appeals affirmed the Worker’s Compensation Board of Appeals’ order, resulting in a significant reduction in Ms. Carthel’s award.
“12. Following the Kansas Court of Appeals’ decision and despite his inability to do so, the Respondent agreed to file a Petition for Review before the Kansas Supreme Court in behalf of Ms. Carthel. Further, the Respondent told Ms. Carthel that it would cost approximately $200.00 to have the briefs bound.
“13. Later, the Respondent falsely told Ms. Carthel that he filed a Petition for Review before the Kansas Supreme Court. Ms. Carthel asked the Respondent for a copy of the Petition for Review. The Respondent, however, never provided Ms. Carthel with a copy of the Petition.
“14. The Respondent did not file, nor could he have filed a Petition for Review, as he was suspended from the practice of law.
“15. Subsequently, Ms. Carthel called the Respondent to check on the status of the Petition for Review. The Respondent falsely advised Ms. Carthel that he had retired from the practice of law.
“16. Ms. Carthel did not learn of the Respondent’s suspension from the practice of law until Mr. Walczak from the Disciplinary Administrator’s office contacted her.
“DA10616
Representation of Ray Hizar
“17. Prior to his suspension from the practice of law, the Respondent represented Ray Hizar in a worker’s compensation matter.
“18. On July 29, 2008, Mr. Hizar appeared by telephone without the Respondent. At that time, Mr. Hizar requested that the matter be rescheduled so that his attorney, the Respondent, could also appear. The matter was rescheduled to September 3, 2008. The Respondent was sent a copy of the Notice of Hearing, scheduling the prehearing conference for September 3, 2008.
“19. In anticipation of the September 3, 2008, prehearing conference, on September 2, 2008, the Respondent faxed a Prehearing Questionnaire to the Division of Workers’ Compensation.
“20. On September 3, 2008, Mr. Hizar went to the Respondent’s office in order to participate in the scheduled prehearing conference call. According to Mr. Hizar, it appeared as though it was business as usual in the Respondent’s office.
“21. On September 3, 2008, Tracy T. Diel, Director of the Office of Administrative Hearings held a prehearing conference in Mr. Hizar’s case. The Respondent appeared with Mr. Hizar by telephone. Mr. Diel asked the Respondent whether he had completed die Prehearing Questionnaire. The Respondent informed Mr. Diel that he had completed the Prehearing Questionnaire and had sent it via facsimile on September 2, 2008, to the Division of Workers’ Compensation.
“22. Mr. Diel indicated that the Prehearing Questionnaire should have been provided to the Office of Administrative Hearings rather than the Division of Workers’ Compensation. The Respondent then sent the Prehearing Questionnaire by facsimile to Mr. Diel at the Office of Administrative Hearings. In the Prehearing Questionnaire, signed by the Respondent, die Respondent indicated that he was representing Mr. Hizar.
“23. Jack Hobbs, an Assistant Attorney General, assigned to the Division of Workers’ Compensation, also appeared by telephone for the prehearing conference. After Mr. Hobbs joined the conference call, die Respondent informed Mr. Diel that he had been suspended from the practice of law. He stated that he was appearing as an ‘amicus’ and that he was not getting paid.
“24. Mr. Diel informed the Respondent that he did not feel comfortable with him participating in the prehearing hearing and the matter was rescheduled to allow Mr. Hizar to retain new counsel. The Respondent stated that he would not participate in the proceedings any further other than to assist Mr. Hizar in obtaining new counsel.
“25. Prior to the conference call, the Respondent had not previously informed Mr. Hizar that his license to practice law had been suspended. The Respondent, however, previously informed Mr. Hizar that he was retiring from the practice of law.
“26. Mr. Hizar retained Kendall Cunningham to represent him in the ongoing workers’ compensation matter. Mr. Hizar located Mr. Cunningham by looking in the telephone directory. The Respondent took no steps to assist Mr. Hizar in locating new counsel.
“27. On September 17,2008, Mr. Diel filed a complaint with the Disciplinary Administrator’s office. On October 1,2008, the Disciplinary Administrator’s office foiwarded a copy of Mr. Diel’s complaint to the Respondent and directed him to provide a written response to the complaint within 20 days. The Respondent never provided a written response to the complaint.
“Service
“28. On September 11, 2009, the Disciplinary Administrator’s office sent the Respondent a copy of the Notice of Hearing and Formal Complaint to his last registered address, 1411 N. St. Paul, Wichita, Kansas 67203, via certified United States mail. On September 15,2009, the Notice of Hearing and Formal Complaint were received at the Respondent’s last registered address.
“29. The Respondent failed to file an Answer to the Formal Complaint.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.4, KRPC 1.16, KRPC 5.5, KRPC 8.1, KRPC 8.4, Kan. Sup. Ct. R. 207, Kan. Sup. Ct. R. 211, and Kan. Sup. Ct. R. 218, as detailed below.
“2. The Respondent failed to appear at the hearing on the Formal Complaint. It is appropriate to proceed to hearing when a Respondent fails to appear only if proper service was obtained. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows:
‘(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney’s most recent registration, or at his or her last known office address.
‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’
In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the Notice of Hearing, via certified United States mail, postage prepaid, to the address shown on the Respondent’s most recent registration. The Hearing Panel concludes that the Respondent was afforded the notice that the Kansas Supreme Court Rules require.
“3. 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 properly advise Ms. Carthel of the status of her case before the Kansas Court of Appeals. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“4. KRPC 1.16 requires lawyers to take certain steps to protect clients after the representation has been terminated. Specifically, KRPC 1.16(d) provides:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entided and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
The Respondent violated KRPC 1.16(d) when he failed to properly inform Ms. Carthel and Mr. Hizar that he had been suspended from the practice of law. Additionally, the Respondent violated KRPC 1.16(d) when he failed to assist Ms. Carthel and Mr. Hizar in securing new counsel. The Hearing Panel concludes that the Respondent violated KRPC 1.16(d).
“5. KRPC 5.5(a) prohibits the unauthorized practice of law. After the Kansas Supreme Court suspended the Respondent’s license to practice law, the Respondent engaged in the unauthorized practice of law. The Respondent represented Mr. Hizar during the period of suspension. Because the Respondent continued to practice law when his license to do so had been suspended, the Hearing Panel concludes that the Respondent violated KRPC 5.5(a).
“6. ‘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 falsely told Ms. Carthel that he had filed a Petition for Review with the Kansas Supreme Court and when he told Ms. Carthel and Mr. Hizar that he retired from the practice of law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).
“7. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirements in this regard. ‘[A] lawyer in connection with a . . . disciplinary matter, shall not:. . . knowingly fail to respond to a lawful demand for information from [a]... disciplinary authority,...’ KRPC 8.1(b).
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, 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 knew that he was required to forward a written response to the initial complaint — he had been instructed to do so in writing by the Disciplinary Administrator. Because the Respondent knowingly failed to provide a written response to two complaints, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).
“8. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) provides the requirements:
‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’
In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a written Answer to the Formal Complaint and by fading to file a written Answer to the Supplement to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“9. Attorneys are required to properly notify their clients and the court upon suspension or disbarment. Kan. Sup. Ct. R. 218(a) provides:
‘In the event any attorney licensed to practice law in Kansas shall hereafter be disbarred or suspended from the practice of law pursuant to these Rules, or shall voluntarily surrender his or her license, such attorney shall forthwith notify in writing each client or person represented by him or her in pending matters, of his or her inability to undertake further representation of such client after the effective date of such order, and shall also notify in writing such client to obtain other counsel in each such matter. As to clients involved in pending litigation or administrative proceedings, such attorney shall also notify in writing the appropriate court or administrative body, along with opposing counsel, of such inability to further proceed, and shall file an appropriate motion to withdraw as counsel of record.’
In this case, the Respondent failed to notify Ms. Carthel and Mr. Hizar that he had been suspended, as required by Kan. Sup. Ct. R. 218(a). Further, the Respondent failed to withdraw from his representation of Ms. Carthel and Mr. Hizar when the Court suspended his license to practice law. Thus, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 218(a).
“10. Kan. Sup. Ct. R. 218(c) provides that ‘violation of any suspension order shall constitute grounds for disbarment.’
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“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 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.
“Duty Violated. The Respondent violated his duty to his client to provide adequate communication and candor. The Respondent also violated his duty to the public to maintain his personal integrity. Finally, the Respondent violated his duty to the legal profession to comply with Court orders and rules.
“Mental State. The Respondent intentionally violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual serious harm to Ms. Carthel, Mr. Hizar, and the legal profession. Because the Respondent failed to inform Ms. Carthel of his suspension, Ms. Carthel’s appeal to the Kansas Court of Appeals was not argued, but rather, it was placed on the summary calendar docket. Further, because Ms. Carthel believed the false statement made by the Respondent that he had filed a Petition for Review before the Kansas Supreme Court, Ms. Carthel was denied an opportunity to have the Kansas Supreme Court review her case. Mr. Hizar’s workers’ compensation matter was unnecessarily delayed by the Respondent’s misconduct. Finally, the reputation of the legal profession, at least in the eyes of Ms. Carthel and Mr. Hizar, was diminished as a direct result of the Respondent’s misconduct.
“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 the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has been previously disciplined on three occasions. In 1987, the Disciplinary Administrator informally admonished the Respondent for neglecting an estate matter for a period of five years.
“On October 29, 1993, the Kansas Supreme Court placed the Respondent on probation for having neglected four cases. In re Jones, 253 Kan. 836 (1993).
“Finally, on June 27, 2008, the Kansas Supreme Court indefinitely suspended die Respondent from the practice of law for failing to properly distribute the net proceeds of the estate for a period of seven years despite regular reminders to do so. In re Jones, 286 Kan. 544, 553, 555 (2008).
“Dishonest or Selfish Motive. The Respondent’s misconduct included dishonest conduct. Specifically, the Respondent repeatedly provided false information to his clients. Accordingly, the Hearing Panel concludes that the Respondent had a dishonest motive.
“A Pattern of Misconduct. The Respondent has engaged in a pattern of misconduct for years. First, in the 2007 case, the Respondent failed to provide a written response to the initial complaint or file an Answer to the Formal Complaint. The Respondent, likewise, failed to provide written responses to the initial complaints or file an Answer to the Formal Complaint in this case. Thus, the Respondent has engaged in a pattern of failing to cooperate in disciplinary investigations and proceedings for years.
“Next, the Respondent engaged in a pattern of dishonesty. The Respondent lied to Ms. Carthel when he stated that he would file a Petition for Review. The Respondent lied to Ms. Carthel when he stated that he had filed a Petition for Review. The Respondent lied to Ms. Carthel when he told her that he retired from the practice of law. Finally, the Respondent lied to Mr. Hizar when he said that he was retiring from the practice of law. Thus, the Hearing Panel concludes that the Respondent engaged in a pattern of dishonest conduct.
“Finally, the Respondent also engaged in a pattern of ignoring Court orders and rules. First, on June 27, 2008, the Kansas Supreme Court ordered the Respondent to comply with Kan. Sup. Ct. R. 218. Independent of the Kansas Supreme Court’s June 27, 2008, opinion, the Respondent was required to properly notify courts, counsel, and clients of his suspension pursuant to Kan. Sup. Ct. R. 218. The Respondent disregarded both the Kansas Supreme Court’s clear order as well as the clear language of Kan. Sup. Ct. R. 218. Next, on June 30, 2008, the Kansas Court of Appeals ordered the Respondent to tell Ms. Carthel that he had been suspended from the practice of law in order to allow her to have the opportunity to retain substitute counsel. The Respondent ignored the Kansas Court of Appeals’ June 30, 2008, order. Thus, in addition to fading to cooperate in disciplinary investigations and proceedings, the Respondent engaged in a pattern of violating Court orders and rules.
“The Respondent’s patterns of misconduct — failing to cooperate in disciplinary investigations and proceedings, engaging in dishonest conduct, and disregarding Court orders and rules — further aggravate the misconduct in this case.
“Multiple Offenses. The Respondent committed multiple offenses by violating KRPC 1.4, KRPC 1.16, KRPC 5.5, KRPC 8.1, KRPC 8.4, Kan. Sup. Ct. R. 207, Kan. Sup. Ct. R. 211, and Kan. Sup. Ct. R. 218.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent engaged in a bad faith obstruction of the disciplinary proceeding by intentionally failing to provide a response to the two complaints filed in this case. The Respondent, likewise, engaged in a bad faith obstruction of the disciplinary proceeding by intentionally failing to file a written Answer to the Formal Complaint.
“Vulnerability of Victim. Ms. Carthel and Mr. Hizar were vulnerable to the Respondent’s misconduct.
“Substantial Experience in the Practice of Law. Prior to the Respondent’s suspension, he had substantial experience in the practice of law. The Respondent’s practice spanned 40 years.
“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 no mitigating circumstances present.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘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 the lawyer’s fitness to practice.
‘8.1 Disbarment is generally appropriate when a lawyer:
(a) intentionally or knowingly violates the terms of a prior disciplinary order and sucb violation causes injury or potential injury to a client, the public, the legal system, or the profession; or
(b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’
“RECOMMEÑDATION
“The Disciplinary Administrator recommended that the Respondent be disbarred.
“The Hearing Panel is appalled at the Respondent’s apparent flagrant disregard for the orders and rules of the Kansas Supreme Court and his apparent failure to recognize the import of the allegations and legal process against him. It appears to the Hearing Panel, that the Respondent has learned nothing from his repeated contacts with die disciplinary system and that he has failed to seek professional assistance to aid in changing his patterns of behavior. In its [2008] opinion, the Kansas Supreme Court noted the Respondent’s failure to learn from his mistakes in its opinion:
‘Despite his prior disciplinary experience, he, again, delayed closing an estate, keeping it open even longer than the earlier case. He, obviously, found no obligation to follow our rules and file a response to the initial complaint or to file an answer to the formal complaint. Respondent, apparently, learned little from his prior disciplinaiy experiences.’ Jones, 286 Kan. at 555.
“Based upon the findings of fact, the conclusions of law, and the standards, the Hearing Panel unanimously recommends that the Respondent be disbarred.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinaiy Administrator.”
The respondent raises exceptions before this court to the panel’s factual findings and conclusions of law.
Discussion
In a disciplinaiy proceeding, this court considers the evidence, the findings of the disciplinaiy panel, and the arguments of the parties. From this record, we determine whether violations of KRPC exist and, if they do, what discipline should be imposed. In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003). Attorney misconduct must be established by clear and convincing evidence. In re Patterson, 289 Kan. 131, 133-34, 209 P.3d 692 (2009); Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 321). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Patterson, 289 Kan. at 134 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Although the respondent filed exceptions to the panel’s final hearing report, he does not take exception to the panel’s conclusions that he violated Supreme Court Rule 207(b) (2009 Kan. Ct. R. Annot. 303) (failure to cooperate in disciplinary investigation); Supreme Court Rule 211(b) (failure to file answer in disciplinary proceeding); and Supreme Court Rule 218(a) (2009 Kan. Ct. R. Annot. 361) (failure to notify clients upon suspension). Thus, these violations are deemed admitted. Supreme Court Rule 212(c) (2009 Kan. Ct. R. Annot. 337). Also, although he implies that no discipline is warranted, nowhere in the respondent’s exceptions or in his brief before this court does he specifically take exception to the hearing panel’s recommended discipline of disbarment.
The respondent takes exception with the hearing panel’s determination that (1) he received notice of the hearing; (2) he violated KRPC 1.4(a) by fading to properly advise Carthel of the status of her case before the Court of Appeals; (3) he violated KRPC 1.16(d) by fading to properly inform clients Carthel and Hizar that he had been suspended from the practice of law and by failing to assist them in securing new counsel; (4) he violated KRPC 5.5(a) by continuing to represent Hizar during the period of suspension; (5) he violated KRPC 8.1(b) by fading to provide written responses to the two initial complaints; and (6) he violated KRPC 8.4(c) by falsely telling Carthel and Hizar that he retired from the practice of law and by falsely telling Carthel he had filed a petition for review in her case. In stating these arguments, respondent makes a concession that “the alleged violations are ‘de minimus,’ with no adverse effect on the clients and a minor at best violation of the [KRPC].”
Notice
In his brief, the respondent indicates that he did not receive notice of the hearing and formal complaint from the Disciplinary Administrator. The record shows that on September 11, 2009, the Disciplinary Administrator’s office sent the respondent a copy of the Notice of Hearing and Formal Complaint to his last registered address via certified United States mail. On September 15, 2009, the Notice of Hearing and Formal Complaint were received at the respondent’s last registered address, the mailing was signed for, and the mailing was not returned to the Disciplinary Administrator’s office. Supreme Court Rule 215(a) (2009 Kan. Ct. R. Annot. 349) requires the Disciplinary Administrator to serve the formal complaint “by personal service or by certified mail to the address shown on the attorney’s most recent registration, or at his or her last known office address.” The rule also provides that service by mail “shall be deemed complete upon mailing whether or not the same is actually received.” Supreme Court Rule 215(c).
At oral argument, the respondent indicated he was no longer practicing at that address — i.e., the last address he had registered with the Clerk of the Appellate Courts — and he did not know what the current occupants of his former law office might have done with the mail. Nevertheless, pursuant to Supreme Court Rule 208(c) (2009 Kan. Ct. R. Annot. 315), attorneys are required to notify the Clerk of any change of address within 30 days.
Hence, the Disciplinary Administrator provided proper notice, and any lack of actual notice is the result of the respondent’s failure to comply with this court’s rules. In addition, the respondent had the opportunity and did file exceptions and appear before this court. Under similar circumstances, we have concluded that an attorney was afforded notice that was reasonably calculated to apprise him of pendency of a disciplinary hearing, and, thus, was not denied his right to due process, even though the attorney did not receive notice. In re Kershner, 250 Kan. 383, 386-87, 827 P.2d 1189 (1992). The same conclusion applies here.
KRPC 1.4(a)
The respondent disputes the hearing panel’s determination that he violated KRPC 1.4(a) (communication) by failing to properly advise Carthel of the status of her case before the Court of Appeals. KRPC 1.4(a) requires an attorney to keep clients reasonably informed about the status of a matter and to promptly comply with reasonable requests for information.
Following the respondent’s suspension from the practice of law, the Court of Appeals — on June 30, 2008, — ordered him to inform Carthel that she must notify the Court in writing of the name of substitute counsel or her intention to proceed pro se. According to the testimony at the hearing, the respondent never withdrew from Carthel’s case, and the respondent never explained to Carthel that she would need another appellate attorney to continue her legal representation. As noted in the panel’s final hearing report, the Court of Appeals subsequently issued a second order, and because the respondent had failed to respond to the June 30, 2008, order, removed Carthel’s case from the oral argument docket and placed it on the summary calendar docket.
In his brief before this court, the respondent does not deny that he failed to follow the orders of the Court of Appeals requiring communication with his client. Instead, he merely states that he “did not appeal but allowed the case to be submitted on briefs since he was no longer able to practice and was unable to find any other attorney to argue” the case. Clear and convincing evidence supports the hearing panel’s finding that the respondent violated KRPC 1.4(a).
KRPC 1.16(d)
Next, the respondent takes issue with the hearing panel’s determination that he violated KRPC 1.16(d) (terminating representation) when he failed to properly inform Carthel and Hizar that he had been suspended from the practice of law and failed to assist them in securing new counsel. KRPC 1.16(d) requires a suspended attorney to notify his or her client of the suspension and to take other steps to the extent reasonably practicable to protect a client’s interest, such as allowing time for employment of other counsel. See In re Docking, 287 Kan. 485, 489, 196 P.3d 1149 (2008) (attorney’s conduct in failing to notify client of attorney’s 90-day suspension violated professional conduct rule requiring an attorney, upon termination of representation, to take steps to the extent reasonably practicable to protect a client’s interest).
The respondent does not deny that he failed to inform his clients that he was indefinitely suspended from the practice of law. Instead, he argues that around April 2008, before his suspension, he notified both Carthel and Hizar of his plan to “retire.” In the respondent’s exceptions, he explains that he notified “all active clients that he intended to retire and would no longer be in practice and they could pick up their files at his office. . . . The files were available until the end of August.”
With regard to assisting Carthel and Hizar in securing new counsel, the respondent deflects any responsibility by arguing that this court did not give him enough time to “wrap up any pending cases and assist the clients in final hearings already scheduled and in obtaining new counsel for their representation.” It does not appear, however, that the respondent made reasonable efforts to comply with the KRPC and the Supreme Court rules.
At the formal hearing, Carthel testified that the respondent never told her that he was suspended from the practice of law. The respondent merely mentioned that he was going to retire. Carthel’s workers compensation case was scheduled for oral argument before the Court of Appeals on July 30, 2008, which was 1 month after the respondent was suspended. Despite his suspension status, he failed to withdraw as counsel and to inform Carthel of his inability to continue representing her on appeal. Neither was he retired at that time, shown by the fact that he remained the counsel of record. Then, after Carthel’s case was decided on the Court of Appeals’ summary calendar docket, the respondent told Carthel that he had filed a petition for review in the Kansas Supreme Court. Carthel was unaware that a petition for review was never filed or that the respondent was not authorized to file one because he was suspended from the practice of law. Clearly, the respondent’s actions gave Carthel the impression that he continued to represent her legal interests in the case.
Hizar testified that he did not know the respondent was suspended from the practice of law until the September 3, 2008, prehearing conference call in his case, where the respondent informed opposing counsel and the Director of the Office of Administrative Hearings that he had been suspended. This occurred approximately 2 months after the respondent’s license to practice law was suspended. Hizar indicated that the respondent had merely told him at some point that “he was retiring,” but Hizar testified, “I didn’t know what was going on.” According to Hizar, the respondent did not offer any assistance in trying to find Hizar another attorney. After September 3, 2008, Hizar found another attorney himself by looking in the telephone book.
Clear and convincing evidence supports the hearing panel’s finding that the respondent violated KRPC 1.16(d).
KRPC 5.5(a), KRPC 8.1(b), KRPC 8.4(c)
The respondent also disputes the hearing panel’s determination that he violated KRPC 5.5(a) (unauthorized practice of law), 8.1(b) (bar admission and disciplinary matters), and 8.4(c) (misconduct). With respect to these three rules, the respondent asserts in his brief that the hearing panel’s findings collectively “benefit from the same strict interpretation by the Disciplinary Prosecutor . . . reliance on the prior cases from 1990 and 2008, to show a pattern ... by the Disciplinary Administrator indicating almost a vendetta against the respondent.” He does not cite any evidentiary support for this contention, and we find no support.
All the complaints docketed against the respondent were initiated by parties outside the office of the Disciplinaiy Administrator. The complaints in the present case, for example, were forwarded to the Disciplinary Administrator by the Court of Appeals and Tracy Diel, Director of the Office of Administrative Hearings. The respondent has previously been disciplined three times. In 1987, the respondent was informally admonished for neglecting an estate matter for a period of 5 years. In 1993, the respondent was placed on probation for 18 months for neglecting four cases. In 2008, the respondent was indefinitely suspended from the practice of law for failing to distribute the net proceeds of an estate for a period of 7 years. In re Jones, 286 Kan. 544, 186 P.3d 746 (2008); In re Jones, 253 Kan. 836, 861 P.2d 1340 (1993). There is no evidence of a “vendetta” against the respondent.
KRPC S.S(a)
The hearing panel determined that the respondent violated KRPC 5.5(a) (unauthorized practice of law) by continuing to represent Hizar during the period of suspension. Although the respondent claims he did not violate any ethical rules, clear and convincing evidence shows that the respondent engaged in the unauthorized practice of law in representing Hizar after his license was suspended.
Hizar’s testimony at the formal hearing showed that he understood the respondent was representing him in ongoing workers compensation matters through September 2008 and that the respondent conferred with him on the telephone and in the respondent’s law office. Additionally, Hearing Officer Diel testified that during the prehearing telephone conference on September 3, 2008, the respondent faxed to him a prehearing questionnaire on which the respondent stated that he represented Hizar; the respondent’s signature appears on the certificate of service. Later in the conversation the respondent revealed that his law license was suspended but he was assisting Hizar as an “amicus” and “was not getting paid.”
At oral argument before this court, the respondent indicated his statements clearly indicate he was not representing Hizar; he asserted his only reason for being there was because he had the file. Further, he stated that he had prepared the questionnaire several months earlier. Yet, the completed questionnaire contained in the record states:
“1. Present date: September 2, 2008
“2. Name of the party represented: Ray A. Hizar
“3. Your name: Stephen Jones.”
Further, the prehearing questionnaire prepared and filed by the respondent advanced, inter alia, legal claims, contentions, theories of defense, and motions to be filed.
A general definition of the “practice of law” has been quoted with approval as follows:
“ ‘As the term is generally understood, the practice of law is the doing or performing of services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court.’ ” State ex rel. Boynton v. Perkins, 138 Kan. 899, 907-08, 28 P.2d 765 (1934) (quoting Eley v. Miller, 7 Ind. App. 529, 34 N.E. 836 [1893] ).
In addition to that general definition, this court has established guidelines for what suspended and disbarred attorneys may and may not do. With regard to limitations, we have emphasized:
“[T]he better rule is that an attorney who has been disbarred or suspended from the practice of law is permitted to work as a law clerk, investigator, paralegal, or in any capacity as a lay person for a licensed attorney-employer if the suspended lawyer’s functions are limited exclusively to work of a preparatory nature under the supervision of a licensed attorney-employer and does not involve client contact. Any contact ivith a client is prohibited. Although not an inclusive list, the following restrictions apply: a suspended or disbarred lawyer may not be present during conferences with clients, talk to clients either directly or on the telephone, sign correspondence to them, or contact them either directly or indirectly.” In re Juhnke, 273 Kan. 162, 166, 41 P.3d 855 (2002) (quoting In re Wilkinson, 251 Kan. 546, 553-54, 834 P.2d 1356 [1992]).
The respondent did not follow these restrictive limitations. Clear and convincing evidence supports the hearing panel’s finding that the respondent violated KRPC 5.5(a).
KRPC 8.1(b)
The hearing panel determined that the respondent violated KRPC 8.1(b) (bar admission and disciplinary matters) by failing to provide written responses to the two initial complaints. It is well established that an attorney’s failure to provide a written response to an initial complaint as requested by the Disciplinary Administrator violates KRPC 8.1(b) and Supreme Court Rule 207 (2009 Kan. Ct. R. Annot. 303). See In re Gentry, 290 Kan. 324, 327, 227 P.3d 956 (2010).
The respondent does not offer any explanation for his failure to abide by this requirement. Clear and convincing evidence supports the hearing panel’s finding that the respondent violated KRPC 8.1(b).
KRPC 8.4(c)
The hearing panel determined that the respondent violated KRPC 8.4(c) (misconduct) by falsely telling Carthel and Hizar that he retired from the practice of law and falsely telling Carthel he had filed a petition for review in her case.
The respondent dwells on the fact that in the spring of 2008, he started his plan to retire from the practice of law and that he told clients he was retiring. The problem is that after he was indefinitely suspended from the practice of law in June 2008, the respondent did not tell Carthel and Hizar about the suspension. Instead, the respondent misrepresented the truth by only mentioning his retirement. To complicate matters, the respondent continued to represent these two clients, which conveyed the impression that he was not yet retired and maintained his license to practice law.
With regard to the petition for review on Carthel’s case, the respondent states in his brief and filed exceptions that after the unfavorable decision in the Court of Appeals, he determined there was no chance of “appealing the decision” and advised Carthel that he would not recommend filing a petition for review because it would be a “useless and expensive exercise.” The respondent further argues that Carthel suffered no loss by his failure to file a petition for review. Respondent ignores the obvious — by providing this advice and a legal opinion to Carthel regarding her claim, he reinforced the false impression that he was representing her.
Further, Carthel testified at the formal hearing that in September 2008, the respondent told her that he filed a petition for review. When Carthel asked the respondent for a copy of the filed petition, he did not provide it. Of course, we now know that a petition for review was never filed, nor did the respondent have the authority to file one because his law license was suspended. Regardless of whether a petition for review would have been successful, there is evidence showing that the respondent falsely indicated to Carthel that he filed such a petition in her case. Clear and convincing evidence supports the hearing panel’s finding that the respondent violated KRPC 8.4(c).
Discipline
With respect to the discipline to be imposed, the hearing panel’s recommendation that the respondent be disbarred in the state of Kansas is advisory only and shall not prevent the court from imposing discipline lesser than that recommended by the panel or the Disciplinary Administrator. Supreme Court Rule 212(f) (2009 Kan. Ct. R. Annot. 337).
Nevertheless, it is clear that the respondent does not appreciate the seriousness of his misconduct. He generally disparages the disciplinary process and the hearing panel’s conclusions. Despite his prior disciplinary experience, he brushed aside his obligation to follow this court’s rules, to protect the public from potential injury, or to hold the legal profession in high regard. Apparently, the respondent learned little from his prior disciplinary experiences. Therefore, we conclude that disbarment is the appropriate discipline.
It Is Therefore Ordered that Stephen J. Jones be disbarred from the practice of law in the state of Kansas, effective on filing of this opinion, in accordance with Supreme Court Rule 203(a)(1) (2009 Kan. Ct. R. Annot. 272).
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Stephen J. Jones from the roll of attorneys licensed to practice law in Kansas.
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.
Patricia Macke Dick, District Judge, assigned. | [
-112,
-22,
92,
-51,
8,
-29,
50,
38,
89,
-45,
103,
83,
-87,
-14,
8,
127,
83,
13,
-48,
107,
-57,
-76,
115,
-55,
102,
-13,
-16,
-43,
-70,
79,
-28,
-3,
73,
-80,
-118,
-43,
-122,
64,
-63,
-100,
-82,
7,
11,
-44,
89,
-127,
-80,
105,
26,
15,
53,
94,
-77,
46,
28,
-61,
44,
108,
127,
-19,
-63,
-111,
-37,
21,
127,
20,
50,
-124,
-100,
-89,
-48,
63,
-120,
56,
32,
-19,
49,
-90,
2,
-12,
79,
-103,
-119,
102,
106,
34,
17,
-123,
100,
-100,
47,
28,
29,
39,
-103,
89,
99,
14,
-106,
-67,
116,
6,
39,
124,
-22,
5,
27,
-28,
-114,
-53,
-32,
-79,
31,
69,
-36,
-69,
-17,
-92,
16,
69,
-53,
103,
95,
-53,
51,
27,
-86,
-76
] |
The opinion of the court was delivered by
Johnson, J.:
Thomas Odell Kelly appeals the denial of a number of postconviction motions in which he sought to withdraw pleas he had entered some two decades ago, on February 14, 1991. In this appeal, Kelly argues that during an attempt to withdraw his pleas prior to sentencing, the district court was put on notice that Kelly s trial counsel had a conflict of interest, which required the district court to make further inquiry. Kelly also contends that his pleas were not knowingly and voluntarily entered. Finding that we are procedurally barred from deciding Kelly’s claims, we affirm the district court.
Factual Overview
In 1990, the State filed two cases against Kelly, numbered 90CR670 and 90CR671. In 90CR670, Kelly was charged with aggravated kidnapping, rape, two counts of aggravated criminal sodomy, and aggravated sexual battery from an incident on December 11, 1989, involving W.W., a woman with whom Kelly had a child. In 90CR671, Kelly was charged with two counts of aggravated criminal sodomy for allegedly forcing B.S., a 15-year-old male, to engage in oral and anal sexual acts in November 1989.
The procedural history in both cases was influenced by the fact that at the conclusion of the December incident, an acquaintance of W.W. severely beat Kelly with a shovel, sending him to the hospital with a brain injury. Subsequent to the filing of charges, the court found that as a consequence of his brain injuries, Kelly was mentally incompetent to stand trial in both cases. The court committed Kelly to Lamed State Security Hospital and further ordered that Kelly undergo emergency brain surgery, to which he had refused to consent.
Lamed State Hospital (Lamed) discharged Kelly on December 6, 1990. The court conducted a preliminary hearing in 90CR670 on January 14, 1991, but the preliminary hearing in the other case was delayed after the State learned that B.S. was out of state. Before the other preliminary hearing could be conducted, the parties reached a plea agreement which called for Kelly to plead guilty to attempted rape in 90CR670 and to one count of aggravated criminal sodomy in 90CR671. In addition to dismissing the remaining counts of both complaints, the State agreed not to invoke the Habitual Criminal Act and to recommend that Kelly be treated at Lamed in lieu of imprisonment.
After accepting Kelly’s plea, the court followed the plea agreement and committed Kelly for treatment in lieu of imprisonment, pursuant to K.S.A. 22-3430 (Ensley 1988). However, Kelly was subsequently released from Lamed and returned for sentencing in June 1991.
By this time, Kelly’s previous attorney, E. Jay Greeno, had left the public defender’s office, and Ron Wurtz appeared at sentencing to represent Kelly. Prior to the imposition of sentence, Wurtz advised die district court that Kelly wanted to withdraw his pleas based upon Kelly’s belief that Greeno had coerced him into entering the pleas. Wurtz immediately tried to explain a possible conflict of interest, stating: “As Mr. Greeno was under my supervision, I cannot actually be on this case and if it needs to be litigated there would have to lie a — .” The district court intermpted Wurtz and declared: “That motion, if it’s considered to be a motion, will be overruled. I personally attended at that plea and the record will reflect no such inducements from the Court’s personal knowledge. Based on that, the motion will be overruled.” The court then proceeded to sentence Kelly to a controlling imprisonment term of 15 years to life.
Kelly’s motion to modify his sentences was denied on September 11, 1991. Kelly did not directly appeal his convictions, his sentences, or the denial of his presentence motion-to withdraw pleas. Beginning in 1993, Kelly filed a number of postconviction motions, including a K.S.A. 60-1507 motion alleging ineffective assistance of counsel, which was denied. In 2007 and 2008, Kelly filed a series of motions, which the district court eventually consolidated and liberally construed as a request for correction of an illegal sentence under K.S.A. 22-3504, a request for relief under K.S.A. 60-1507, and a request to withdraw his pleas under K.S.A. 22-3210. The district court summarily denied Kelly’s motions, finding that his claims did not fit within the definition of an illegal sentence, that his 60-1507 claims were time-barred, and that Kelly’s conclusory statements about his plea did not warrant withdrawal under K.S.A. 22-3210.
On March 5, 2008, Kelly filed a motion to reconsider, which reasserted his previous complaints as well as adding allegations of wrongful conduct by his trial attorneys. The new allegations against Greeno were that he failed to inform Kelly that B.S., the victim in 90CR671, had left the state; that Greeno had told Kelly that he could not win and had no choice but to plead guilty; and that Greeno had advised Kelly to tell the court that he was entering his pleas freely, knowingly, voluntarily, and intelligently. The allegation against Wurtz was the somewhat curious claim that Wurtz had refused to present Kelly s presentence plea withdrawal motion. Kelly also complained that the district court’s rulings were based upon journal entries, rather than a review of hearing transcripts, and that the court had refused to allow him to file pro se motions. The district court denied Kelly’s motion for reconsideration in a June 2, 2008, memorandum decision, which was based on much the same rationale as the previous memorandum decision.
On appeal, Kelly raises a new complaint about the district court’s failure to inquire into Wurtz’ conflict of interest and reiterates his claim that his pleas were not voluntarily and knowingly entered.
Conflict of Interest Claim
Kelly first complains that Wurtz put the trial court on notice that he had a conflict of interest in representing Kelly on the plea withdrawal motion, which triggered a duty for the district court to make further inquiry into the conflict. Kelly asks that the matter be remanded for the district court to first inquire into the conflict of interest and then to take evidence on the merits of the motion to withdraw plea. In other words, he attempts to include his claim that he was denied his constitutional right to conflict-free counsel as a part of his motion to withdraw plea. However, the Sixth Amendment to the United States Constitution claim is separate from the merits of the plea withdrawal claim. Granted, one of the factors a district court should consider in exercising its discretion to allow a plea withdrawal for good cause is whether the defendant was represented by competent counsel. See State v. White, 289 Kan. 279, 285, 211 P.3d 805 (2009). However, that inquiry focuses on the adequacy of representation at the plea hearing, not at the hearing on a motion to withdraw plea.
Therefore, Kelly s conflict of interest claim was a proper subject for a K.S.A. 60-1507 motion, not a motion to withdraw plea under K.S.A. 22-3210. Accordingly, we will consider Kellys claim in that context.
A. Standard of Review
. The district court summarily denied those claims that it construed to be 60-1507 issues. For summary denials, we conduct a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to any relief. Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
B. Analysis
Kelly has at least three procedural obstacles that stand in the way of his getting review of the conflict of interest claim. First, he did not directly appeal, and a 60-1507 motion cannot be used as a substitute for a direct appeal. See Rice v. State, 37 Kan. App. 2d 456, 459, 154 P.3d 537, rev. denied 284 Kan. 946 (2007).
Next, Kelly filed a prior 60-1507 which raised the issue of ineffective assistance of counsel. An ineffective assistance of counsel claim is founded upon the defendant’s Sixth Amendment right to counsel, which is the same basis upon which Kelly relies to argue his current conflict of interest claim. The district court is not required to entertain a second or successive 60-1507 motion for similar relief on behalf of the same prisoner. See K.S.A. 60-1507(c); Supreme Court Rule 183(d) (2010 Kan. Ct. R. Annot. 255). Absent a showing of exceptional circumstances, the court can dismiss a second or successive motion as an abuse of remedy. Toney v. State, 39 Kan. App. 2d 944, 947, 187 P.3d 122 (2008).
“ ‘Exceptional circumstances are unusual events or intervening changes in the law which prevent a movant from reasonably being able to raise all of the trial errors in the first post-conviction proceeding.’ [Citation omitted.]” Woodberry v. State, 33 Kan. App. 2d 171, 175, 101 P.3d 727, rev. denied 278 Kan. 853 (2004). Kelly does not explain the unusual events or changes in the law which have occurred since he filed his previous 60-1507 motion, and we can discern no such exceptional circumstances.
Kelly was aware of the conflict of interest issue at the sentencing hearing. While he purports to make the issue an absence of judicial inquiry, the error in this case had nothing to do with judicial inquiry. Wurtz presented the district court with sufficient information to find a conflict of interest. Hopefully, a district court need not inquire further to ascertain that when a defendant is represented by the public defender s office and the defendant alleges an attorney in that office coerced or misled the defendant, then the attorney’s supervisor in the public defender’s office has a conflict in representing the defendant on that claim. It is difficult to imagine any judicial inquiry which might have made the conflict any more clear.
Moreover, there has been no intervening change in the law which would have prevented Kelly from raising the conflict of interest claim in either a direct appeal or in his first 60-1507 motion. Accordingly, Kelly’s successive claim that he was denied effective assistance of counsel, as required by the Sixth Amendment, is an abuse of remedy.
The final obstacle to review is found in K.S.A. 60-1507(f)(l), which required Kelly to file his 60-1507 action within 1 year of the termination of appellate jurisdiction in his case. He did not meet that deadline. To avoid the time limitation, he had to convince the district court that an extension of time was necessary to prevent a manifest injustice. See K.S.A. 60-1507(f)(2). “Manifest injustice” has been described in other contexts as meaning “obviously unfair” or “shocking to the conscience.” Ludlow v. State, 37 Kan. App. 2d 676, 686, 157 P.3d 631 (2007).
Kelly’s attempt to claim that the district court’s failure to inquire “simply allowed defense counsel to stand mute” on the plea withdrawal motion is disingenuous, at best. Wurtz made no attempt to argue the merits of the motion. To the contrary, Wurtz specifically told the district court that he could not be on the case to litigate the motion, before the district court interrupted and summarily ruled on the motion. The problem was not that the district court allowed a conflicted attorney to argue the motion, but that the district court did not permit any argument whatsoever. It is not manifestly unjust to apply the time limitation to Kelly’s conflict of interest claim, and we find that claim to be procedurally barred.
Plea Withdrawal
In his second issue, Kelly argues that he should be entitled to withdraw his pleas because they were not knowingly and voluntarily entered. He includes all of the arguments he has made in his various motions and appears to treat the matter as if there had been but one motion under K.S.A. 22-3210(d). However, Kelly recognizes that the district court’s basis for exercising its discretion to allow a plea withdrawal is different for a postsentencing motion. A plea may be withdrawn before sentencing “for good cause shown,” whereas a postsentencing plea withdrawal may be ordered “[t]o correct manifest injustice.” K.S.A. 22-3210(d). Accordingly, Kelly creatively suggests that we can separate his arguments based upon when they were first made, analyzing the arguments made at the sentencing hearing for good cause and analyzing the postsentencing arguments for manifest injustice. Then, he would have us either reverse all of the denials and remand with directions to permit the withdrawal of his pleas, or remand to the district court for an evidentiary hearing.
Kelly’s contorted analysis highlights his insurmountable problem. He received a ruling on the merits of his motion to withdraw pleas at the sentencing hearing in 1991. Kelly did not appeal that ruling, and it became a final ruling on the plea withdrawal issue. Accordingly, the dispositive question is whether res judicata prevented Kelly from rektigating the plea withdrawal issue through his postsentencing motions.
A. Standard of Review
The applicability of res judicata is a question of law, subject to unlimited review. See In re Care & Treatment of Sporn, 289 Kan. 681, 686, 215 P.3d 615 (2009).
B. Analysis
In Kansas, there are four requirements to apply res judicata: (1) identity in the thing sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action; and (4) identity in the quality of persons for or against whom claim is made. In re Sporn, 289 Kan. at 686. In Kelly’s current postsentencing motion, he is suing for the same thing that he was denied at the sentencing heating, i.e., leave to withdraw his plea. The cause of action and parties were identical. Kelly was his own proponent for his position in all of the motions. The doctrine of res judicata is applicable in this situation.
In its initial memorandum decision, the district court noted that Kelly had not appealed the denial of his initial plea withdrawal motion. However, the court appeared to apply the exceptional circumstances analysis applicable to 60-1507 motions. There is precedent for applying to plea withdrawal motions certain procedures governing 60-1507 motions. See State v. Jackson, 255 Kan. 455, 458, 874 P.2d 1138 (1994) (applying procedures governing hearings on 60-1507 motions as guidance for hearings oii K.S.A. 22-3210[d] [Ensley 1988] motions).
Nevertheless, Kelly does not ask us to treat his motion as a 60-1507 motion and does not argue the existence of exceptional circumstances that would provide relief through a 60-1507 motion notwithstanding his failure to directly appeal. The reason that he does not argue for the application of K.S.A. 60-1507 procedural rules is most likely revealed by his declaration that “diere is no time limitation for a motion to withdraw one’s plea.” But cf. K.S.A. 60-1507(f)(l) (1-year limitation on filing 60-1507 motion). Regardless, Kelly does not present us with any mechanism whereby the doctrine of res judicata may be circumvented to permit a relitigation of the plea withdrawal issue. The district court should be affirmed. See State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008) (district court’s correct result may be upheld for alternative reasons).
Affirmed. | [
-48,
-20,
-115,
-102,
27,
-32,
42,
-106,
97,
-77,
119,
115,
-87,
102,
1,
123,
-6,
61,
84,
121,
-33,
-73,
83,
97,
-101,
-5,
56,
-97,
-77,
-50,
-76,
-5,
77,
48,
70,
-11,
102,
-56,
-51,
22,
-118,
-123,
-70,
-20,
-109,
-125,
48,
61,
54,
3,
49,
31,
-93,
106,
16,
-25,
105,
44,
91,
-84,
72,
17,
-112,
45,
79,
4,
-93,
-92,
28,
3,
112,
62,
-104,
48,
2,
-84,
120,
-122,
-110,
-11,
77,
-115,
12,
98,
98,
1,
13,
-25,
109,
-71,
30,
-66,
-99,
-90,
-39,
114,
72,
77,
-75,
-67,
112,
84,
47,
120,
111,
69,
69,
108,
-24,
-33,
-112,
-77,
-49,
56,
2,
113,
-13,
61,
36,
101,
-35,
-44,
92,
87,
115,
-97,
-66,
-16
] |
The opinion of the court was delivered by
Nuss, J.:
The district court denied Ruby N. Thomas’ motion to suppress, convicted her of possession of cocaine, and determined that her statutory right to a speedy trial was not violated. The Court of Appeals affirmed her conviction, vacated her sentence, and remanded the case to the district court for resentencing on the probation term.
Thomas petitioned for review of three issues, not including the sentencing issue decided by the Court of Appeals. We granted her petition under K.S.A. 20-3018(b).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court err in denying Thomas’ motion to suppress? Yes.
2. Was Thomas denied her statutory right to a speedy trial? No.
3. Did the district court violate Thomas’ Sixth Amendment rights by admitting a KBI forensic lab report without requiring the forensic examiner to testify? Issue not preserved for appeal.
Accordingly, we reverse the defendant’s conviction and remand for new trial.
Facts
On December 19, 2005, Junction City police officer Josh Brown was on patrol and spotted Ruby Thomas walking in the 1300 block of North Webster at 8:48 p.m. Officer Brown possessed a subpoena for L.N., and believing Thomas was L.N., stopped his patrol car. He did not activate his car’s emergency lights. Because it was nighttime, his headlights remained illuminated, and the dashboard camera recorded the following events.
Officer Brown exited his car and approached Thomas to ask whether she was L.N. Thomas provided her name but was unable to produce identification. She answered a few basic questions and told Brown she was heading home from the house of a friend named Frank. Based on this information, Brown determined that she was not L.N. He next asked for her permission to fill out a field interview card. After assurances that she was “not in trouble,” Thomas agreed to provide the requested information.
Officer Brown was to testify later that when Thomas provided her address, he was reminded of a prior visit there when Thomas’ husband, while intoxicated, had called 911 and complained that Thomas had left their house with a drug dealer. When asked, Thomas was now unable to recall her social security number. Brown spoke into his shoulder radio and later appeared to receive information about Thomas from police dispatch. While filling out the interview card, Brown advised Thomas that she was not under arrest. Twice he informed her that she was free to leave. After Brown completed the card, he and Thomas shook hands and said goodbye. The encounter lasted approximately 5 minutes. Both parties maintained a friendly tone.
Thomas turned her back to Officer Brown and walked away. When she was about 10-15 feet from Brown, he called out, “Hey, Ms. Ruby, can I ask you a couple more questions real quick?” Thomas turned around, walked back to Brown, and agreed to answer further questions.
Officer Brown started this stage by saying, “The more I talk to you, the more I was getting reminded of who you were.” When he asked, Thomas indicated that she was recently at “Frank’s house.” Brown inquired whether it was the same “Frank’s house” where drugs and drug paraphernalia had recently been confiscated. Tho mas acknowledged it was the same house but denied involvement in that incident.
Officer Brown then asked Thomas if she had used drugs or consumed alcohol earlier that day. Thomas admitted to consuming alcohol but denied using drugs. Brown explained that he was asking because the area around Frank’s house is known for drugs and because of the earlier 911 incident involving Thomas’ husband. Brown continued asking about drugs and drug paraphernalia and whether Thomas and/or her friends were currently using illegal drugs. Thomas again denied that she was using drugs. She further denied that she was in possession of drugs or drug paraphernalia. According to Brown, she did not appear to be under the influence of drugs.
Brown told Thomas to “be honest with me,” and with her standing 2-3 feet away from him, spoke into his shoulder radio. He radioed, “Are you 10-6? 10-4. Can you come up here to North 1300 Webster?” After using his radio, Brown again asked Thomas if she had drugs or paraphernalia on her person. Thomas responded “no” and emptied her pockets. Brown asked to feel inside her pockets for drugs, and Thomas threw her hands into the air. After Brown again told Thomas to “be honest with me,” she admitted that she was in possession of two crack pipes, which she had found on the ground. At no time during this second stage did Brown inform Thomas that she was free to leave.
Brown again used his shoulder radio, this time to specifically inquire about the status of a female officer who could pat down Thomas. He then placed Thomas under arrest. Thomas waived her Miranda warnings and later made incriminating statements about her use of cocaine that evening and in the past.
The State charged Thomas with possession of cocaine found in the crack pipes. She filed a pretrial motion to suppress all evidence obtained during the second stage of the encounter with Officer Brown, alleging it was an investigatoiy detention unsupported by reasonable suspicion. After an evidentiary hearing, the district court determined that the encounter between Thomas and Brown was voluntary and denied the motion:
“This is a very close case, however, the Court finds that in this particular case and under these circumstances that discovery of the evidence does not violate the Fourth Amendment. The officer told the Defendant on several occasions she had the right to leave, that she was not under arrest. When confronted with the question as to whether or not she had anything in her pockets, she said no. The officer then asked her if he could look in her pockets at which time she threw her hands up and admitted she had two crack pipes in her pocket. Actually, there was never a search involved. She admitted to a crime and was placed under arrest and made incriminating statements after being given the Miranda warning. Therefore, her statements are admissible against her.”
After a bench trial, the judge found Thomas guilty. Thomas appealed four issues, and a Court of Appeals panel reversed the district court on the probation term but affirmed the three remaining issues. State v. Thomas, 2008 WL 4222877 (Kan. App. 2008) (unpublished opinion). We granted Thomas’ petition for review on the three issues decided adversely to her by the panel.
More facts will be added as necessary to the analysis.
Issue 1: The district court erred in denying Thomas’ motion to suppress
Thomas argues that the district court improperly denied her motion to suppress. She does not contest the encounter that began when Officer Brown stopped her to determine if she was L.N. and ended when she said good-bye and walked away. She does dispute what she refers to as the second encounter, which she claims began when Brown called out to ask if she would answer more questions and ended with her arrest.
More specifically, Thomas argues that the second encounter was an involuntary, investigatory detention unsupported by reasonable suspicion of criminal activity. In contrast to the first encounter, she contends that the second involved accusatory and repetitious questions about illegal activity and included Officer Brown’s call for a back-up officer. As a result, Thomas argues that all evidence obtained must be excluded as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).
The State responds that the entire episode, e.g., both stages, was consensual. It argues that Thomas agreed to answer questions, that Brown’s questions were “not so coercive as to make this encounter a detention,” and that the call for back-up, alone, was insufficient to turn the encounter into an investigatory detention.
Standard of review
When reviewing general motions to suppress evidence, our standard of review is well known:
“ ‘ “[T]his court reviews the factual underpinnings of a district court’s decision for substantial competent evidence and the ultimate legal conclusion drawn from those facts de novo. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review. [Citation omitted.] The State bears the burden to demonstrate that a challenged search or seizure was lawful. [Citation omitted.]” ’ ” State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 (2010) (quoting State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 [2009]).
Because the parties do not dispute the material facts, our suppression question is solely one of law. See State v. Ingram, 279 Kan. 745, 751, 113 P.3d 228 (2005). Therefore, we must only determine as a matter of law whether the second stage of the encounter was consensual or, if it was an investigatory detention, whether it was supported by reasonable suspicion.
Investigatory detention
We begin our analysis by acknowledging that a voluntary encounter is not considered a seizure and is not afforded protection by the Fourth Amendment to the United States Constitution. McGinnis, 290 Kan. at 551 (citing State v. Morris, 276 Kan. 11, 19, 72 P.3d 570 [2003]). As a result, if we hold that the second stage of encounter was voluntary, i.e., consensual, then the drug evidence was properly obtained.
Our recent opinion in State v. McGinnis, which like the instant case, concerned an officer’s questioning and eventual arrest of a pedestrian, provides our frame of reference for this issue:
“The United States Supreme Court has developed a ‘totality of the circumstances’ test to determine if there is a seizure, or instead a consensual encounter. See State v. Thompson, 284 Kan. 763, 775, 166 P.3d 1015 (2007). ‘[U]nder the test, law enforcement interaction with a person is consensual, not a seizure if, under the totality of the circumstances, the law enforcement officer’s conduct conveys to a reasonable person that he or she was free to refuse the requests or otherwise end the encounter.’ 284 Kan. at 775. Stated another way, ‘ “[s]o long as a reasonable person would feel free to ‘disregard the police and go about his business,’ [citation omitted], the encounter is consensual and no reasonable suspicion is required.” ’ State v. Reason, 263 Kan. 405, 410, 951 P.2d 538 (1997) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 [1991]). Consequently, in Reason we held that only if ‘ “ ‘the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.’ ” ’ 263 Kan. at 410-11.
“The standard of appellate review for this specific subset of suppression determinations — -the trial court’s decision of whether the encounter is consensual or a seizure — is quite similar to the standard for general suppression of evidence:
‘Appellate review of the trial court’s determination of whether a reasonable person would feel free to refuse the officer’s requests or otherwise terminate the encounter consists of two parts: (1) the factual underpinnings are reviewed under a substantial competent evidence standard and (2) the ultimate legal conclusion drawn from those facts, i.e., whether a reasonable person would feel free to refuse the requests or to otherwise terminate the encounter, is reviewed under a de novo standard.’ Thompson, 284 Kan. at 776 (citing Moore, 283 Kan. at 352).
“We begin our analysis by acknowledging that a seizure does not occur simply because a police officer approaches an individual and asks a few questions:
‘[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen .... [Citations omitted.] Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. [Citation omitted.] The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. [Citations omitted.]’ Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983).
See Thompson, 284 Kan. 763, Syl. ¶ 17 (‘Law enforcement questioning, by itself, is unlikely to result in a Fourth Amendment violation. Unless the surrounding conditions are so intimidating as to demonstrate that a reasonable person would have believed he or she was not free to disregard the questions, there has been no intrusion upon the detained person’s liberty or privacy that would implicate the Fourth Amendment.’).
“Accordingly, over the years we have recognized several objective factors to help determine whether a law enforcement-citizen encounter is voluntary or an investigatory detention. This nonexhaustive and nonexclusive list includes: the presence of more than one officer, the display of a weapon, physical contact by the officer, use of a commanding tone of voice, activation of sirens or flashers, a command to halt or to approach, and an attempt to control the ability to flee. See State v. Lee, 283 Kan. 771, 775, 156 P.3d 1284 (2007); State v. Morris, 276 Kan. 11, 19-20, 72 P.3d 570 (2003); State v. Gross, 39 Kan. App. 2d 788, 798-800, 184 P.3d 978 (2008).
“There is no rigid application of these factors; instead, we analyze the facts of each case independently. We have held that ‘[i]n applying the totality of the circumstances test in a Fourth Amendment context, no one factor is legally determinative, dispositive, or paramount. The outcome does not turn on the presence or absence of a single controlling or infallible touchstone and requires careful scrutiny of all the surrounding circumstances.’ Thompson, 284 Kan. 763, Syl. ¶ 20. On the other hand, ‘we do not expect courts to merely count the number of factors weighing on one side of the determination or the other. In the totality of the circumstances, a factor may be more indicative of a coercive atmosphere in one case than in another. [Citations omitted.]’ 284 Kan. at 804.” McGinnis, 290 Kan. at 552-53.
Thomas argues that a reasonable person would not have felt free to leave under the totality of the circumstances facing her during the second stage of her encounter with Officer Brown. Thomas first points out that upon returning to Officer Brown’s presence, she was immediately questioned about drags and drag paraphernalia, including whether she had recently used or was currently possessing drags. His repeated questions persisted even after Thomas’ repeated denials.
Additionally, Thomas emphasizes Officer Brown’s call for officer baclc-up, arguing that it further conveyed to a reasonable person that he or she was not free to leave. As noted, Brown used his shoulder radio to ask, “Can you come up here to North 1300 Webster?” He admitted on the stand, and the videotape of the incident confirms, that he called for the back-up officer in Thomas’ presence before she admitted possessing two crack pipes. He also admitted that Thomas more than likely heard him call for this backup. And Thomas correctly points out that in the district court judge’s voluntariness analysis, he failed to address Brown’s call for back-up as a factor.
In support of Thomas’ argument that the call for back-up is a factor relevant to our determination, she cites Falls v. State, 953 So. 2d 627 (Fla. Dist. App. 2007), and Morrow v. State, 848 So. 2d 1290 (Fla. Dist. App. 2003). We find Morrow of particular guidance. There, an officer stopped a car for speeding and for failing to display a tag. The officer obtained the driver’s identification and requested the same from the passenger — who was not wearing a seatbelt. The passenger refused to provide identification, and the officer walked around the car, positioned himself “right outside the passenger door,” and called for back-up. 848 So. 2d at 1292. When the back-up officer arrived, the passenger provided his name, and a warrants check revealed outstanding warrants for his arrest. A search incident to arrest produced crack cocaine and marijuana.
The Morrow court determined that “what began as a consensual encounter evolved into an investigatory stop.” 848 So. 2d at 1293. The officer’s position outside the passenger door prevented the passenger from leaving, and when combined with the officer’s call for back-up, the court determined that a reasonable person would not feel free to leave. 848 So. 2d at 1292-93.
The Court of Appeals panel in the instant case correctly noted that no Kansas appellate court has addressed how a call for backup factors into the detention analysis. The panel did not address Falls or Morrow. Rather, it cited State v. Green, 375 Md. 595, 826 A.2d 486 (2003), for the apparent proposition that an officer’s call for back-up does not automatically result in an investigatory detention — i.e., it does not automatically signal to a reasonable person that he or she is not free to leave.
In Green, a deputy stopped the defendant’s car for speeding. Dispatch revealed that the defendant’s license was valid, but that he had “prior caution codes for armed and dangerous and . . . drugs.” 375 Md. at 601. The deputy issued a warning citation and returned the defendant’s documents. The officer told the defendant he was “free to go” but then asked if the defendant would answer more questions. 375 Md. at 601. The defendant agreed to answer further questions and also consented to a search of his vehicle. To ensure his safety, the deputy asked the defendant to exit the vehicle and then called for back-up to assist with the search. While waiting for the back-up officers, the deputy explained to the defendant his purpose in calling for back-up was to ensure the deputy’s safety.
The Green court rejected a lower court statement that “ ‘calling for back-up would generally signal to a reasonable person that the continuation of the encounter is not really a matter of choice.’ ” 375 Md. at 617. Rather, the court opined that since the officer explained that he called for back-up as a safety measure, it “did not suddenly transform the consensual encounter into a seizure.” 375 Md. at 617.
Green is readily distinguishable from this case. Unlike the deputy in Green, Officer Brown did not explain to Thomas the purpose of his call for back-up. Nor did he already have consent to search or reason to conduct a pat-down when he made the call. Thomas had not admitted to possessing the two crack pipes when the back-up call was made, but instead had consistently denied drug use and possession. Nevertheless, we agree with the panel that a mere call for back-up does not automatically transform all citizen-law enforcement encounters into investigatory detentions. Rather, the call is a factor to be considered in the totality of the circumstances of each case.
A call for back-up has some parallels to a more common factor: the actual presence of more than one officer at the scene. See McGinnis, 290 Kan. at 553. We acknowledge that in some situations, the presence of more than one officer is not indicative of a coercive atmosphere. See, e.g., State v. Lee, 283 Kan. 771, 156 P.3d 1284 (2007) (two officers approached defendant in park and encounter was voluntary in light of surrounding events). However, a person seeing and hearing a single law enforcement officer asking for another officer to “come up here to North 1300 Webster” (their exact location) would strongly suggest to a reasonable person that the called officer was being asked to “back up” the calling officer in ways besides just helping to ask more questions — which the person is free to ignore. See Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). This element is not present with the simultaneous appearance of two officers. See Lee, 283 Kan. 771.
We conclude that Officer Brown’s call for back-up, when combined with his other conduct, would convey to a reasonable person that he or she was not free to refuse to answer Brown’s questions or otherwise terminate the second stage of the encounter. See State v. McGinnis, 290 Kan. at 552. More specifically, both before and after making the call, Brown repeatedly asked Thomas questions about her drug use and possession. After the call, Thomas emptied her pockets for him, apparently in an attempt to prove her denials. He then asked to feel inside her pockets, and she threw her hands in the air. After Brown again told Thomas to “be honest with me,” she confessed to possessing two crack pipes. In contrast to the first stage, at no time during the second stage did Brown tell Thomas she was free to leave. See State v. Thompson, 284 Kan. 763, 811, 166 P.3d 1015 (2007) (a clear communication that the person is free to terminate the encounter or refuse to answer questions is a factor in determining the coercive effect of the encounter); State v. Reason, 263 Kan. 405, 414, 951 P.2d 538 (1997).
Reasonable suspicion
Having established that the second stage of the encounter turned into an investigatory detention, our next question is whether this detention was statutorily and constitutionally permissible. See State v. Pollman, 286 Kan. 881, 889, 190 P.3d 234 (2008). Investigatoxy detentions are generally permitted under the Fourth Amendment to the United States Constitution and K.S.A. 22-2402 if “an objective officer would have a reasonable and articulable suspicion that the detainee committed, is about to commit, or is committing a crime.” Pollman, 286 Kan. at 889 (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [1968], and Thompson, 284 Kan. at 773).
We recently discussed additional considerations for how “reasonable suspicion” is evaluated in State v. Moore, 283 Kan. 344, 354, 154 P.3d 1 (2007), where we stated:
“What is reasonable is based on the totality of the circumstances and is viewed in terms as understood by those versed in the field of law enforcement.” [quoting State v. Toney, 253 Kan. 651, 656, 862 P.2d 350 (1993)]____
“[W]e judge the officer’s conduct in light of common sense and ordinary human experience. [Citation omitted.] ‘Our task ... is not to pigeonhole each purported fact as either consistent with innocen[ce] ... or manifestly suspicious,’ [citation omitted], but to determine whether the totality of the circumstances justify the detention. [Citation omitted.] We make our determination with deference to a trained law enforcement officer’s ability to distinguish between innocent and suspicious circumstances, [citation omitted], remembering that reasonable suspicion represents a ‘minimum level of objective justification’ which is ‘considerably less than proof of wrongdoing by a preponderance of the evidence.’ ” ’ 263 Kan. at 734-35 (quoting United States v. Mendez, 118 F.3d 1426, 1431 [10th Cir. 1997]; citing United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 109 S. Ct. 1581 [1989]).”
Similarly, the United States Supreme Court has stated:
“ “While “reasonable suspicion” is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification. . . . [Citation omitted.] The officer must be able to articulate more than an “inchoate and unparticularized suspicion or ‘hunch’ ” of criminal activity. [Citation omitted.]’ Illinois v. Wardlow, 528 U.S. 119, 123, 145 L. Ed. 2d 570, 120 S. Ct. 673 (2000).” Moore, 283 Kan. at 354-55.
Whether reasonable suspicion exists is a question of law. We use a mixed question standard of review, determining whether substantial competent evidence supports the district court’s findings, while the legal conclusion is reviewed de novo. Moore, 283 Kan. at 350 (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 [1996]). Because the district court judge found the encounter voluntary, he did not discuss whether Officer Brown possessed reasonable suspicion to detain Thomas.
Thomas contends that the detention was unsupported by reasonable suspicion because Officer Brown never had any reason to believe she had committed or was committing a crime. Although the Court of Appeals panel determined the encounter was voluntary, it also found that Brown had reasonable suspicion to extend the encounter based on two factors: Thomas’ admission that she came from the house of a known drug dealer (Frank) and Brown’s prior involvement with Thomas when her upset and intoxicated husband called 911 claiming she left their house with a drug dealer. Thomas, 2008 WL 4222877, at °3 (Kan. App. 2008). The State agrees with the panel.
We disagree with the panel and the State. While Thomas was headed home after admittedly leaving an area known for drugs, and while Brown watched part of her journey, Brown did not hear or see anything that would create reasonable suspicion of her criminal activity, e.g., that she was under the influence of drugs. He admitted he had no evidence to suggest such influence or that she possessed illegal drugs or paraphernalia. Indeed, Thomas continually denied Brown’s allegations of illegal activity suggested in his questions.
We conclude that Officer Brown was unable to articulate more than an inchoate and unparticularized suspicion or hunch that Thomas was involved in criminal activity. See Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). A contrary holding could permit officers to detain persons leaving known drug areas without any further indicia of illegal activity. The United States Supreme Court expressly rejected this approach in Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979), holding, “The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct.” Brown’s recollection of an episode of an unknown date where Thomas’ angry and intoxicated husband accused her of leaving their house with a drug dealer is likewise insufficient to help rise to the level of reasonable suspicion on the present occasion.
Because we hold that the investigatory detention was unsupported by reasonable suspicion and Thomas therefore was illegally detained, we reverse the decisions of the Court of Appeals and the district court. As a consequence of the illegal detention, the evidence then obtained should have been suppressed as “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 484-87, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); State v. Epperson, 237 Kan. 707, 718-19, 703 P.2d 761 (1985).
Issue 2: Thomas was not denied her statutory right to a speedy trial.
Thomas next claims she was denied her statutory right to a speedy trial. In her pretrial motion to dismiss on speedy trial grounds, she claimed her time started running on the day of her arraignment: February 10. Her calculations attributed 184 days to the State, which exceeds the 180-day limit in K.S.A. 22-3402(2). The State’s response calculated a maximum of 102 days that were attributable to it. The district court attributed 179 days to the State and consequently denied Thomas’ motion to dismiss.
On appeal, Thomas attributes 10 more days to the State, for a total of 194 days. This new total represents two changes to her district court calculation. First, she subtracted 5 days assessed against the State due to her miscalculation on the March 24 continuance requested by both parties. Second, she assessed against the State 15 days — from January 26 (the day she waived preliminary hearing) through February 10 (the day of her arraignment). In short, she claims that the speedy trial clock started not upon the day of her actual arraignment, but upon the day she argues she should have been arraigned: when she waived her right to a preliminary hearing. She cites K.S.A. 22-3206(3) in support. She argues that her speedy trial right was violated because the trial was more than 180 days from the day “she should have been arraigned.”
The State responds that the 15 days between Thomas’ waiver of a preliminary hearing and her arraignment are not assessed against either party because the speedy trial clock starts at arraignment, i.e., February 10.
As a threshold matter, the State argues Thomas did not preserve this issue for appeal. First, it contends she advances a different argument on appeal than she presented to the district court. Second, she failed to previously object to the setting of her arraignment on a different day than the one when she waived her preliminary hearing.
We turn to the State’s first contention: that Thomas presents an argument that was not presented to the district court.
The cases of R.D. Andersen Constr. Co. v. Kansas Dept. of Human Resources, 7 Kan. App. 2d 453, 643 P.2d 1142 (1982); State v. Murray, 22 Kan. App. 2d 340, 916 P.2d 712 (1996), and State v. LaBelle, 290 Kan. 529, 231 P.3d 1065 (2010), are of guidance. In R.D. Andersen, the trial court directed both parties to brief an issue. However, the appellant failed to comply with the order and instead repeated its earlier statements to the court. The trial court decided the issue adversely to the appellant. On appeal, the appellee argued that the Court of Appeals was precluded from reviewing the issue since the appellant failed to brief and argue the issue to the trial court. The Court of Appeals disagreed. Despite appellant’s “curious decision” to not brief the issue, it held the issue was presented to the trial court and was therefore considered on appeal. R.D. Andersen, 7 Kan. App. 2d at 456.
In Murray, the defendant pleaded guilty to two separate offenses in one hearing. He later sought to withdraw his plea when, to his surprise, the trial court included expunged juvenile adjudications in his criminal history score. The trial court refused to grant the withdrawal, and the defendant appealed. The Court of Appeals noted that the issue at the trial court was whether expunged juvenile adjudications could be included in a criminal history score, but on appeal, the defendant asserted a broader claim: whether any juvenile adjudications could be included in a criminal history score. Despite the apparent change in argument, the panel considered the claim “[bjecause the trial court addressed the latter more specific issue concerning expunged juvenile adjudications.” 22 Kan. App. 2d at 343 (citing R.D. Andersen, 7 Kan. App. 2d at 456).
We recently reviewed an analogous situation in LaBelle. The trial court classified LaBelle as a persistent sex offender without specifying which of two prior qualifying offenses was used to make the determination. LaBelle challenged his status as a persistent sex offender, and at both the trial court and the Court of Appeals he focused his arguments on one of the prior qualifying offenses. To this court, LaBelle filed a supplemental brief that addressed the other qualifying offense. We rejected the State’s argument that LaBelle was precluded from arguing against one of the prior offenses because he did not raise it until after the panel issued its opinion. Because LaBelle’s underlying claim remained the same, and because the panel addressed the argument, we considered LaBelle’s arguments regarding the prior offense that he did not make to any court below.
Similar to those cases, here the trial court addressed Thomas’ general speedy trial claim. Likewise, on appeal Thomas has, at all times, maintained that her statutory right to a speedy trial was denied, t.e., the trial occurred after more than 180 days assessed against the State. We acknowledge she has changed her calculation of the total number of days on appeal due to a new statutory interpretation, as discussed later in the opinion. While a close call, we will review Thomas’ speedy trial arguments.
The State’s second threshold argument is that Thomas failed to comply with K.S.A. 60-404 by contemporaneously objecting to the setting of her arraignment on a different date than the one when she waived her preliminaiy hearing. We must reject her argument because this statute clearly is limited to evidentiary matters. See State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009) (K.S.A. 60-404 “dictates 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.”).
Turning to the merits of Thomas’ speedy trial claim, we begin our analysis by reciting our standard of review: “The question of whether there was a violation of the statutory right to a speedy trial is a matter of law, and we review it using a de novo standard of review. [Citation omitted.]” State v. Mitchell, 285 Kan. 1070, 1080, 179 P.3d 294 (2008) (relying on State v. Adams, 283 Kan. 365, 368, 153 P.3d 512 [2007]); accord State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009).
The Court of Appeals determined that the lack of facts in the record regarding the reason for the 15-day delay between her waiver of a preliminary hearing and her arraignment precluded appellate review of the changed calculation advanced on appeal. Nevertheless, the panel determined that, based on the record and Thomas’ original calculation, the State brought her to trial 179 days after her arraignment, within the statutorily mandated 180 days.
Two statutes are at play in the instant case: K.S.A. 22-3402(2) and K.S.A. 22-3206(3). The former provides:
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial toithin 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).” (Emphasis added.)
The speedy trial clock begins at arraignment. See Vaughn, 288 Kan. at 143-44 (statutory right to speedy trial started at arraignment); State v. Brown, 283 Kan. 658, 157 P.3d 624 (2007) (same).
Thomas acknowledges this statute provides that the statutory speedy trial clock starts at arraignment. However, she relies upon K.S.A. 22-3206(3), which considers when a preliminary examination has been waived:
“If the prehminaiy examination is waived, arraignment shall be conducted at the time originally scheduled for the preliminary examination if a judge of the district court is available, subject to the assignment pursuant to K.S.A. 20-329 and amendments thereto to conduct the arraignment.” (Emphasis added.)
Thomas contends that the speedy trial clock should start on the day she waived her prehminary examination because, subject to some exceptions she claims are not present here, 22-3206(3) requires arraignment on the same day as the waiver.
We disagree. Thomas’ argument is that her right to a speedy trial was violated. K.S.A. 22-3402 is well known as the speedy trial statute; it is the statute applicable to her speedy trial claim. See Vaughn, 288 Kan. at 143-44. And its plain language clearly requires trial 180 days “after arraignment.” See Griffin v. Suzuki Motor Corp., 280 Kan. 447, 460, 124 P.3d 57 (2005) (“Intent of the legislature is to be derived in the first place from the words used.”); see also Vaughn, 288 Kan. at 144 (“the calculation of time for a speedy trial begins on the date of arraignment”). Thomas’ actual arraignment was not on January 26 but on February 10.
We acknowledge the language of K.S.A. 22-3206(3) and its apparent basis for Thomas’ argument. However, this statute generally concerns the timing of arraignments, e.g., possible “late arraignments.” It does not concern lack of speedy trial. It therefore does not control the plain language of the speedy trial statute, which is the specific basis for Thomas’ claim. Cf. In re K.M.H., 285 Kan. 53, 82, 169 P.3d 1025 (2007), cert. denied 555 U.S. at 937 (2008) (a specific statute controls over a general statute). Per K.S.A. 22-3402, the date of the actual arraignment is the trigger for starting the speedy trial clock. This is despite Thomas’ argument to the contrary, e.g., that she was “illegally arraigned 15 days after her waiver” and these days should be attributable to the State.
Given our conclusion, we need not resolve the parties’ dispute on whether the judge who accepted Thomas’ waiver was a magistrate judge; whether under K.S.A. 20-302b(a) magistrate judges in the 8th judicial district may actually hear “felony arraignments sub ject to assignment pursuant to K.S.A. 20-329 and amendments thereto”; and whether, as found by the panel, “Thomas did not prove then and does not prove on appeal that a district court judge was available to hear her arraignment” under K.S.A. 22-3206(3). Thomas, 2008 WL 4222877, at *4.
Our review reveals that Thomas was brought to trial within 180 days of her arraignment:
At the February 10 arraignment, Judge Hombaker set the case for jury trial on March 29, with a status hearing on March 24. Both parties agree that the 42 days between February 10 and March 24 are assessed against the State. See Vaughn, 288 Kan. at 147 (days between arraignment and next event were assessed against the State).
At the March 24 status hearing, both parties requested and received a continuance until April 14. Thomas is assessed the time between March 24 and April 14 because she acquiesced in the continuance. See Brown, 283 Kan. at 662 (“A defendant, by requesting or acquiescing in the grant of a continuance, waives the statutory right to a speedy trial.”).
On April 14, 2006, Thomas filed a motion for a competency evaluation, and Judge Hornbaker issued an order granting the evaluation the same day. Therefore, Thomas is assessed the time between April 14 and June 2 because “the reasonable delays attributed to the psychiatric evaluation of the defendant by both parties are charged to the defendant for purposes of the speedy trial statute.” State v. McGee, 280 Kan. 890, 893, 126 P.3d 1110 (2006). The State’s brief uses April 16 instead of April 14 in its computation; however, the date Thomas filed the motion for a competency evaluation stops the clock against the State. See McGee, 280 Kan. at 891-93; State v. Powell, 215 Kan. 624, 625, 527 P.2d 1063 (1974).
At the June 2 competency hearing, the district court found Thomas competent to stand trial. According to the journal entry, Thomas also pleaded not guilty, and the court set the case for trial on August 23, with a status hearing on August 18. The State calculates this time against Thomas, claiming she changed her mind about the plea and caused the delay. We disagree. Thomas waived her right to a jury trial on October 17, which is outside the June 2- August 18 time frame. Once a defendant is found competent to stand trial following a competency evaluation, time starts running against the State unless otherwise chargeable against the defendant. See State v. Prewett, 246 Kan. 39, 42-43, 785 P.2d 956 (1990); Powell, 215 Kan. at 625. Thus, the State is assessed 77 days from June 2 and August 18.
At the August 18 status hearing, the court continued the matter for jury trial until October 18. A transcript of the August 18 hearing was not included in the record, but both parties contend that the court continued the matter due to insufficient court staff to empanel a jury. “The burden of bringing an accused to trial within the allowed time is on the State. A defendant is not required to take any affirmative action to see that his right is observed.” State v. Dreher, 239 Kan. 259, 260, 717 P.2d 1053 (1986). For example, in Vaughn the district court judge became ill, and absent an acquiescence by the defendant, the State was assessed the delay. 288 Kan. at 146-47. Because there is no record of the event, we cannot determine if Thomas demonstrated more than mere passive acceptance and agreed to the delay. See Vaughn, 288 Kan. 140, Syl. ¶ 4. Therefore, the State is assessed 60 days from August 18 to October 17.
Finally, Thomas is assessed the time between October 17 and her November 8 bench trial. On October 17, Thomas requested the matter be taken out of the jury trial setting and set for a bench trial. Thomas acknowledges that she is responsible for this delay. “[Djelays that result from the request of a defendant toll the statutory speedy trial period. [Citations omitted.]” Vaughn, 288 Kan. at 144.
In total, the State is assessed 179 days, which is within the permitted period between arraignment and trial in K.S.A. 22-3402(2). Therefore, Thomas was not denied her right to a speedy trial.
Issue 3: Thomas did not preserve for appeal whether the admitted KBI report violated her Sixth Amendment rights.
Finally, Thomas claims the district court violated her Sixth Amendment right to confrontation by admitting a KBI forensic lab report without requiring the forensic examiner to testily.
The State responds that Thomas failed to preserve this issue for appeal with a contemporaneous trial objection on this specific ground. While Thomas concedes that she earlier objected on Fourth Amendment grounds, not Sixth, she nevertheless contends that this court may review her new argument under State v. Puckett, 230 Kan. 596, 940 P.2d 1198 (1982). More particularly, she contends our review is necessary to prevent the denial of her fundamental right of confrontation. We agree with the State.
The holding in State v. McCaslin, 291 Kan. 697, 245 P.3d 1030 (2011), controls. At trial, McCaslin objected to a prosecutor s question as “stating facts not in evidence.” On appeal, we denied McCaslin’s challenge of the same statement on Confrontation Clause grounds because his objection, while timely, was not specific to confrontation. We held that the trial court never had a chance to rule on the ground argued on appeal, and the contemporaneous objection rule barred our review. Accord State v. Bryant, 272 Kan. 1204, 38 P.2d 661 (2002).
Judgment of the Court of Appeals is reversed. Judgment of the District Court is reversed. Case remanded. | [
-80,
-6,
-31,
-100,
58,
-15,
52,
-68,
112,
-77,
106,
115,
33,
90,
21,
57,
-70,
-3,
85,
121,
-58,
-74,
7,
-31,
-2,
-13,
74,
87,
-77,
-39,
-2,
-44,
13,
48,
-118,
-43,
102,
72,
-89,
112,
-114,
21,
-24,
-61,
83,
66,
36,
34,
46,
15,
49,
-34,
-77,
58,
16,
-62,
73,
57,
91,
-75,
80,
113,
-71,
-107,
-113,
4,
-78,
52,
-108,
-89,
-8,
55,
84,
57,
0,
104,
114,
-124,
-110,
116,
75,
-117,
-124,
36,
98,
33,
29,
-19,
-84,
-84,
38,
62,
-107,
39,
-40,
9,
67,
108,
-108,
-99,
108,
22,
43,
124,
127,
-42,
89,
-20,
47,
-49,
-80,
-111,
79,
48,
-126,
-61,
-5,
53,
16,
101,
-59,
-32,
92,
112,
112,
-101,
-18,
-106
] |
The opinion of the court was delivered by
Rosen, J.:
Jose Juan Huerta-Alvarez appeals from two convictions of aggravated indecent liberties with a child contrary to K.S.A. 21-3504(a)(3)(A). The dates of the offenses fall on both sides of the date upon which K.S.A. 2006 Supp. 21-4643, known as Jessica’s Law, became effective; consequently, he was sentenced to 61 months, the high end of the Kansas sentencing guidelines grid box, on one count, and to life with a hard 25 under K.S.A. 2006 Supp. 21-4643 on the other count. He raises several issues on appeal. Our jurisdiction is under K.S.A. 22-3601(b)(l).
Facts
On December 16, 2006, Wichita police officer Eric Noack was dispatched to 1017 S. Woodlawn on a check the welfare call. When he arrived he found 13-year-old B.N., who was locked out of her residence and who told him she did not know where her mother was. According to Officer Noack, no other adults were present when he arrived. Eventually, B.N.’s grandparents, mother, and uncle all arrived.
Officer Noack noticed that B.N.’s mother kept trying to keep B.N. close to her and talk to her, but B.N. appeared uncomfortable with her mother and did not seem to want to talk to her. B.N. had earlier told the officer that the day before her mother had told her to pack her things and get out because B.N. was causing problems between her mother and her mother’s boyfriend. The officer took B.N. aside and asked her if she was having problems at home. B.N. told him that she was having problems with her mother’s boyfriend. She said that he was making sexual advances toward her.
Because departmental policy called for referring the case immediately to the Exploited and Missing Children Unit (EMCU), Officer Noack did not pursue the topic much farther with B.N. He did, however, get basic information from her about the allegations. B.N. told him that over the previous 6 months there had been several times that the boyfriend had tried to get her to have sex with him, including asking her to touch his penis. She said these things mostly happened at a prior address, which she identified as 1401 South Pinecrest in Wichita.
Officer Noack made arrangements for B.N. to go with her uncle, with whom she was comfortable, and referred the case to the EMCU. Detective Tom Krausch was assigned to the case and over the next few days identified the mother s boyfriend as Jose Juan Huerta-Alvarez, the appellant. He also interviewed B.N. Detective Krausch and B.N. were the State’s main witnesses at trial.
The original complaint charged Huerta-Alvarez with one count of rape and two counts of aggravated indecent liberties with a child, all identified as off-grid crimes occurring after July 1, 2006. Following the prehminary hearing, the first amended complaint was filed, which added a count of aggravated criminal sodomy and alternative counts of attempted rape and aggravated indecent liberties. One count of aggravated indecent liberties and the alternative counts of attempted rape and aggravated indecent liberties were identified as off-grid crimes. A second amended complaint was filed following the State’s evidence at trial and was necessitated by the fact that the State was unable to get B.N. to repeat testimony she had offered at the prehminaiy hearing.
B.N. was often vague and somewhat contradictory in her various statements about what had happened. The closest she came to estabhshing dates of any particular incident was to say whether she thought it had occurred when she was living at the Pinecrest address or at the Woodlawn address. Ultimately, in the second amended complaint filed following the presentation of the State’s evidence at trial, the State settled upon using dates obtained from Westar utility records to establish the dates of residence at the two addresses and thus the alleged dates of the crimes.
There were three incidents that B.N. recounted with some regularity, however. The first of these incidents occurred at the Pine-crest address where utility records established that her mother had been responsible for the utilities from August 23, 2005, until September 12, 2006. B.N. testified that it was before school in the morning and her mother was not in the house. She came out of the bathroom and discovered Huerta-Alvarez naked. She retreated to the bathroom again and yelled at him to get dressed. Eventually he told her he was dressed and she reemerged from the bathroom only to find him still naked. At that point either she ran or he pulled her into the bedroom where he pinned her on the bed and started to disrobe her. She testified that he attempted to put his penis in her vagina but she was able to bite his hand and get away. She grabbed her clothes and ran back to the bathroom. When she emerged again, he had left the apartment and was sitting in his truck outside.
A second incident which B.N. said happened at the Pinecrest apartment involved Huerta-Alvarez sticking his hand down her pants. She testified that his finger penetrated her vagina just a little bit and that it hurt because he has big fingers. The third incident involved Huerta-Alvarez attempting to put his penis in her mouth while she was sitting on the couch. She testified that this incident also occurred at the Pinecrest apartment.
At the urging of the prosecutor, B.N. repeatedly testified that other incidents happened at both the Pinecrest and Woodlawn residences. She also testified, in response to the prosecutors prompting, that she was not lying and had no reason to make up her story.
Following the State’s evidence, the State informed the court and defense counsel that Counts 5 and 6 of the amended complaint would be dismissed since B.N.’s testimony at trial did not support those counts. The second amended complaint, therefore, filed to conform to the evidence the State had presented, alleged the following charges, dates, statutes, and crime severity levels and categories:
I. Rape 8/23/05 to 12/16/06; 21-3502(a)(2)(c); SL 1, PF
II. Agg. Indecent Liberties 8/23/05 to 9/12/06; 21-3504(a)(3)(A); SL 3, PF
III. Agg. Criminal Sodomy 8/23/05 to 9/12/06; 21-3506(a)(l); SL 2, PF
IV. Agg. Indecent Liberties 9/19/06 to 12/16/06; 21-3504(a)(3)(A); Off-grid.
All three of the complaints filed in the case contained Huerta-Alvarez’ year of birth, 1979, in the caption of the complaint, but none of the counts in any of the complaints alleged that he was over the age of 18 at the time of the offenses. All three of the complaints identify the rape charge as pursuant to K.S.A. 2005 Supp. 21-3502(a)(2)(c), which identifies an off-grid crime; however, because of the dates alleged, the amended and second amended complaints both identify the crime as a severity level 1 person felony, not as an off-grid crime. None of the counts of aggravated indecent liberties in any of the complaints cite either of the statutory sections, K.S.A. 21-3504(c) and K.S.A. 2006 Supp. 21-4643, that enhance the crimes to off-grid felonies; however, several of the counts, including two counts of aggravated indecent liberties with a child in the original complaint and two counts of aggravated indecent liberties with a child in the amended complaint and Count 4 of the second amended complaint, indicate at the bottom of the page that the sentence is off-grid.
No evidence was presented at trial concerning the defendant’s age, and nothing in the evidence directly indicated what his age would have been at the time of the alleged offenses. The instructions requested by the defendant did not ask the jury to find the defendant’s age. Any instructions requested by the State were not included in the record on appeal. The State had no objections to the instructions proposed and given by the court. The instructions given did not require the jury to find Huerta-Alvarez’ age at the time of the offenses.
After having the entire testimony of B.N. read back to it, the jury convicted Huerta-Alvarez of Counts 2 and 4, the aggravated indecent liberties charges. Because of the dates alleged in the second amended complaint, the conviction under Count 2 is a severity level 3 person felony, while the conviction under Count 4 is an off-grid offense.
Huerta-Alvarez filed a motion for a downward departure from the life sentence applicable to Count 4. The motion alleges as grounds that the defendant had no prior convictions; that he was acquitted of the rape and criminal sodomy counts, which would normally be thought of as the most serious; and that to impose a life sentence “for a count of fondling when defendant would have received a grid sentence for the count of rape is cruel and unusual punishment” in violation of the Eighth Amendment to the United States Constitution and Section 9 of the Kansas Constitution Bill of Rights. The motion further requested that Huerta-AIvarez be sentenced to 55 months, the low grid box number for aggravated indecent liberties.
The district court denied the motion for departure and imposed a life sentence with no chance of parole for 25 years on the primary offense of aggravated indecent liberties with a child contained in Count 4 of the second amended complaint. On Count 2, stating that he was concerned the legislature might change the law back and lower the sentences imposed under Jessica’s Law, the judge imposed a sentence of 61 months, the high number in the grid box.
Huerta-AIvarez filed a pro se Notice of Appeal Out of Time, to which the State did not object. The defendant was allowed to file his appeal out of time.
Analysis
This is another in the line of cases including State v. Gracey, 288 Kan. 252, 200 P.3d 1275 (2009); State v. Bello, 289 Kan. 191, 211 P.3d 139 (2009); State v. Gonzales, 289 Kan. 351, 212 P.3d 215 (2009); and State v. Morningstar, 289 Kan. 488, 213 P.3d 1045 (2009). The appellant was convicted of a sex crime with a child under 14 years of age and sentenced pursuant to K.S.A. 21-4643, Jessica’s Law, to a life sentence premised on the fact that he was older than 18 years of age when he committed the offenses, despite the fact that the State did not allege his age in the complaint, and the jury was not instructed to find his age beyond a reasonable doubt. Huerta-AIvarez argues that, as a result, his convictions and sentence violate the Sixth Amendment to the Constitution of the United States and Section 10 of the Kansas Constitution Bill of Rights. Although Huerta-AIvarez’ brief does not specifically limit his argument to his conviction under Count 4 of the second amended complaint, the argument is of necessity so limited.
Complaint
Huerta-Alvarez argues that the district court did not have jurisdiction to sentence him under K.S.A. 2006 Supp. 21-4643 because the complaint was defective in failing to allege that he was over the age of 18. This court recently reviewed the identical issue in State v. Gracey, 288 Kan. at 254-57, and State v. Gonzales, 289 Kan. at 365-69.
“Whether an information is sufficient to confer subject matter jurisdiction is a question of law over which an appellate court has unlimited review.” State v. Gracey, 288 Kan. at 254 (citing State v. McElroy, 281 Kan. 256, 261, 130 P.3d 100 [2006]).
“Our review is unlimited where, as in this case, appellate arguments implicate concerns relating to statutory and constitutional interpretation. State v. Bello, 289 Kan. 191, 195, 211 P.3d 139, 142 (2009); State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008) (statutory interpretation is question of law subject to de novo review); State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007) (constitutionality of sentencing statute is question of law subject to unlimited review). Whether a complaint or information is sufficient to confer subject matter jurisdiction is also a question of law and, therefore, the same unlimited standard of review applies.” State v. Gonzales, 289 Kan. at 365-67 (citing Gracey, 288 Kan. at 254; State v. McElroy, 281 Kan. 256, 261, 130 P.3d 100 [2006]).
Huerta-Alvarez was charged in Count 4 of the second amended complaint with aggravated indecent liberties with a child. The complaint identified the count as a violation of K.S.A. 21-3504(a)(3)(A) and as being an off-grid felony but did not specifically allege that Huerta-Alvarez was 18 years of age or older. He was sentenced under K.S.A. 2006 Supp. 21-4643(a)(l)(C), which, by way of K.S.A. 21-3504(c) and K.S.A. 2006 Supp. 21-4706(d), provides the sentence for the off-grid version of K.S.A. 21-3504(a)(3)(A) when the defendant is 18 years of age or older and the victim is under the age of 14. See Bello, 289 Kan. at 197-98.
Huerta-Alvarez does not maintain that the complaint was fatally defective. Rather, he maintains that it charged a valid crime, just not the crime for which he was sentenced. He argues that, therefore, the court lacked jurisdiction to sentence him under K.S.A. 2006 Supp. 21-4643 to a life sentence with no chance of parole for 25 years. He maintains the sentence must be vacated and the case remanded for resentencing under the guidelines grid.
The court considered the identical issue in Gracey.
“The test used to evaluate the sufficiency of the charging document depends upon when the issue was first raised. State v. Shirley, 277 Kan. 659, 661, 89 P.3d 649 (2004). When the charging document is challenged for the first time on appeal, the defendant must show that the alleged defect either: (1) prejudiced the defendant’s preparation of a defense; (2) impaired the defendant’s ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant’s substantial rights to a fair trial. McElroy, 281 Kan. at 261. ‘The longer it takes for the defendant to challenge the sufficiency of the information, the greater the presumption of regularity. [Citation omitted.]’ State v. Hall, 246 Kan. 728, 761, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003).” Gracey, 288 Kan. at 254.
The State relies on Gracey to argue that the complaint was sufficient. Huerta-Alvarez raised no objection to the charging document. As in Gracey, he has made no showing that the alleged defect prejudiced his preparation for trial, impaired his ability to plead the conviction in any subsequent prosecution, or limited his substantial rights to a fair trial.
“The validity of a charging instrument is to be tested by reading the document in its entirety, and the elements of the offense may be gleaned from the document as a whole. McElroy, 281 Kan. 256, Syl. ¶ 3.” Gracey, 288 Kan. at 256. In Gracey, the court reviewed the charging document and found that it set out in its caption that he was over the age of 18 and stated at the bottom that the charge was for an off-grid felony. In addition, the document set out all of the elements of aggravated indecent liberties with a child. Gracey, 288 Kan. at 256-57.
Applying this review to the charging document, or rather to the set of charging documents, in this case is not as simple a matter as the review of the complaint in Gracey. Nonetheless, all three of the complaints, including the two filed prior to trial and therefore, relevant to the preparation of Huerta-Alvarez’ defense, contained the year of his birth in the caption of the complaint and alleged that at least one of the counts of aggravated indecent liberties was an off-grid offense.
Gracey concluded that, based on the limited standard of review applicable, the district court’s decision to apply K.S.A. 2006 Supp. 21-4643 in sentencing Gracey was not reversible error. In Gonzales, 289 Kan. at 369, the court reviewed a complaint with virtually identical provisions and concluded, in light of Gracey, that the failure to specifically allege in the complaint that Gonzales was 18 years of age or older did not invalidate his conviction.
The facts in this case with regard to the charging documents are, in pertinent part, identical to those in Gracey and Gonzales. Reading the documents as a whole indicates that Huerta-Alvarez was adequately informed of both the crimes alleged and the penalty proposed. There is no indication that Huerta-Alvarez was unaware of the potential consequences of the crimes with which he was charged or that anything in the complaints filed against him prejudiced his defense. There are no .grounds under this issue upon which to vacate his sentence.
Jury Instructions
Huerta-Alvarez relies upon the guarantee of the right to a jury trial in the Sixth and Fourteenth Amendments to the United States Constitution, along with the similar guarantee contained in Section 10 of the Kansas Constitution Bill of Rights, and on Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348, (2000), to argue that the failure to instruct the jury to find his age at the time of the alleged offenses was clear error, requiring the court to reverse the conviction and remand for a new trial. Again, Huerta-Alvarez does not specifically limit this argument to his conviction under Count 4 of the second amended complaint, but the argument is necessarily so limited.
Instructions are erroneous “only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred. [Citations omitted.]” State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003). Further, Huerta-Alvarez points out that although failure to instruct a jury on an element of the crime is error, this court has held that a constitutional harmless error analysis can still apply. See State v. Daniels, 278 Kan. 53, 62-63, 91 P.3d 1147, cert. denied 543 U.S. 982 (2004); State v. Reyna, 290 Kan. 667, Syl. ¶ 9, 234 P.3d 761 (2010).
Gonzales, relying on Bello, also disposes of this argument.
“Gonzales also contends that omitting the defendant’s age — an essential element — from the charging document and from the jury instructions requires reversal of his conviction for aggravated indecent liberties with a child under the age of 14. This argument has no merit in light of the recent case of Bello, 289 Kan. at [195-200],
“Like Gonzales, Bello was convicted of aggravated indecent liberties with a child under the age of 14 and aggravated criminal sodomy. With regard to both of Bello’s crimes of conviction, because he was 18 years of age or older and the victim was under 14 years of age, the crimes were off-grid severity level crimes under K.S.A. 21-4706. Asserting that the defendant’s age is an essential element and making the same arguments that Gonzales now brings before this court, Bello characterized K.S.A. 2006 Supp. 21-4643 as a statute which establishes a separate, aggravated form of the enumerated crimes. This court rejected the idea that separate crimes were created by the statute.
“Instead, we observed that each of the statutes defining Bello’s crimes — aggravated criminal sodomy and aggravated indecent liberties with a child — ’sets forth two separate levels of the offense which can apply to the act which Bello committed: one a KSGA nondrug grid box offense, and the other an off-grid offense.’ Bello, 289 Kan. at 198. We explained that ‘[t]he determination of which offense applies turns on whether the offender was age 18 or older when committing the criminal act.’ Bello, 289 Kan. at 198.
“We further noted that the crime-defining statutes in Bello are comparable in structure to the theft statute, K.S.A. 21-3701, which describes varying levels of offenses based upon the additional fact of the stolen property’s value. Bello, 289 Kan. at 198; see also, e.g., State v. Piland, 217 Kan. 689, Syl. ¶ 3, 538 P.2d 666 (1975) (where value of stolen property is at issue, trial court should instruct the jury regarding the element of value and require a jury finding as to value).
“Hence, although K.S.A. 21-4643 reiterates the age factor which elevates the sentence for aggravated indecent liberties with a child to a hard 25 life sentence, the fact remains that the severity-enhancing factor is initially identified in K.S.A. 21-3504, the statute defining the elements of the crime. Bello, 289 Kan. at 198. In other words, as applicable to the present case, the defendant’s age is an element of the crime of aggravated indecent liberties with a child when the crime is charged as an off-grid severity level offense. Omitting the defendant’s age from a complaint or from jury instructions does not eliminate the existence of the crime of aggravated indecent liberties with a child or invalidate a criminal conviction for that offense — the crime severity level is merely characterized as the applicable KSGA severity level stated in K.S.A. 21-3504(c) rather than as an off-grid offense. Gonzales’ conviction of aggravated indecent liberties with a child is valid.” Gonzales, 289 Kan. at 369-70.
Based on Gonzales, therefore, the fact that the trial court did not instruct the jury to find Huerta-Alvarez’ age at the time of the offense does not invalidate his conviction for aggravated indecent liberties with a child.
This analysis does not, however, dispose of the issue whether the failure to instruct the jury to find Huerta-Alvarez’ age renders his sentence invalid. Cf. Gonzales, 289 Kan. at 370-71. Application of the rule of Apprendi, 530 U.S. at 490, settles this issue and dictates that the life sentence imposed for Count 4 of the complaint must be vacated and the case reminded for sentencing under the applicable Kansas Sentencing Guidelines Act (KSGA) grid box. Apprendi holds that the right to trial by jury guaranteed by the Sixth Amendment to the United States Constitution, applicable to the States under the Fourteenth Amendment to the United States Constitution, requires that any fact which enhances the'sentence imposed beyond the statutory maximum must be found by a juiy. This court has held in Bello, Momingstar, and Gonzales-that Apprendi requires vacation of life sentences under Jessica’s Law when the juiy was not instructed to find the defendant’s age and the sentence instead rested upon a determination of the age by the trial judge.
The State makes two arguments relevant to this issue. First, it cites a line of cases holding that prior convictions need not be alleged in the charging document nor found by the juiy when they are simply a fact that establishes the class or penalty of the crime. Second, the State makes an argument based upon statutory construction that the defendant’s age is not an element of aggravated indecent liberties with a child and, therefore, the juiy need not be instructed to find it. Both of the State’s arguments are invalid in light of the holding of Apprendi that any fact, other than the fact of a prior conviction, that enhances the sentence beyond the statutory maximum must be determined by a jury.
In the recent cases of Reyna, 290 Kan. at 681, State v. Garza, 290 Kan. 1021, Syl. ¶ 3,236 P.3d 501 (2010), and State v. Martinez, 290 Kan. 992, Syl. ¶ 14, 236 P.3d 481 (2010), we held that we would apply harmless error analysis to this issue and find harmless error where the evidence before the jury of the sentence-enhanc ing fact was overwhelming and essentially uncontroverted, leading the court to conclude that the jury would have found the existence of the fact had it been properly instructed. See Daniels, 278 Kan. at 64-65; Neder v. United States, 527 U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827, (1999). In Reyna, the defendant took the stand and stated his age during the trial. No comparably direct evidence of Huerta-Alvarez’ age was presented in this case. After oral argument and the publication of Reyna, however, the State added to the record on appeal a copy of a transcript of Huerta-Alvarez’ interview with Detective Krausch. The State points out that this transcript was admitted into evidence and went to deliberations with the jury. The first page of the transcript is divided into two columns, the first containing the dialogue as given, the second column containing the translation to English of any parts of the dialogue conducted in Spanish. The speakers are identified by initials although there is no key matching full names to the initials. The dialogue on the first page is as follows:
“JOSÉ JUAN HUERTA ÁLVAREZ
CASE # 07CR27
DC: I’ll put this over here
OA: Va a poner la chamarra ah. He’s going to put the coat there.
JH: OK
OA: Do you have the case number yet?
DC: What’s that?
OA: Do you have the' case number yet?
DC: Uh, 97265
OA: . . .
DC: On
OA: ... on the date of birth I guess
DC: 1,5,79
OA: Aha
DC: Is that the day of birth?
OA: ... his address
DC: What’s up with the Alvarez?
OA: ... his mom’s last name”
Huerta-Alvarez’ date of birth is January 5, 1979, but that is less than clear on the face of this transcript. Further, we are left to speculate as to what extent or whether the jury even reviewed the transcript during its deliberations. Under these circumstances, there is no overwhelming or uncontroverted evidence upon which to base a harmless error finding. The life sentence must be vacated and the case remanded for resentencing on Count 4 under the applicable KSGA grid box.
Sufficiency of the Evidence
Huerta-Alvarez next argues that there was insufficient evidence to support his conviction on Count 4 because “[t]he State failed to prove that [he] was 18 years of age or older, an element of aggravated indecent liberties under K.S.A. 21-3504(a)(3)(A) and K.S.A. 21-4643(a)(l).”
“When a defendant challenges the sufficiency of the evidence in a criminal case, the standard of review is whether after reviewing all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009) (citing State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 [2007]).
Appellant’s argument under this issue is essentially a refashioning of the argument based on Apprendi set out under the first issue. He argues that under, the analysis of Apprendi, any fact that increases the statutory maximum penally for the crime becomes an element of the offense which must therefore be proved beyond a reasonable doubt to the jury. The remedy to which he is entitled for failure of the State to produce any evidence on this element, he maintains, is to “reverse and remand with directions to impose a sentence under the guidelines.” Because we have remanded with directions to resentence him on Count 4 under the guidelines above, it is unnecessary to address this argument.
Prosecutorial Misconduct
Huerta-Alvarez argues that the prosecutor infringed his right to a fair trial by improperly bolstering the State’s witness during questioning and closing argument and by telling the jury his opinion of the evidence during closing argument. The State argues that Huerta-Alvarez’ claims concerning questioning by the prosecutor are not properly before the court because no contemporaneous objection was made at trial and that the prosecutor’s statements during closing argument do not amount to prosecutorial misconduct.
A contemporaneous objection must be made to all evidentiary claims — including questions posed by a prosecutor and responses to those questions — to preserve those claims for appellate review. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). No contemporaneous objection is required, however, to review a prosecutor’s statements made during closing argument for misconduct. 288 Kan. at 349.
Huerta-AIvarez first complains of questions posed to B.N. by the prosecutor at trial which elicited (presumably by design) responses from her assuring the jury that she was not lying and had no motive to fabricate her story. Trial counsel failed to object to these questions. As a result, whether they amounted to prosecutorial misconduct is not properly before the court.
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury during closing argument requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009).
In the second step of the two-step analysis, the appellate court considers three factors:
“ ‘(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60-261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v. California, 386 U.S. 18,[ 22,] 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) [conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial], have been met. [Citations omitted.]’ [Citation omitted.]” McReynolds, 288 Kan. at 323.
“When a defendant claims that a prosecutor committed reversible misconduct, the prejudicial nature of alleged errors is analyzed in the context of the trial record as a whole.” State v. Murray, 285 Kan. 503, 511, 174 P.3d 407 (2008) (citing State v. Whitaker, 255 Kan. 118, 134, 872 P.2d 278 [1994]).
Huerta-Alvarez complains generally .about statements made by the prosecutor concerning B.N.’s credibility during the prosecutor’s closing argument and, specifically, about one statement made during the rebuttal portion of his closing argument. Generally, the prosecutor’s closing argument focused on B.N.’s credibility since the case boiled down to her word against Huerta-Alvarez’ word. Specifically, Huerta-Alvarez objects to the following statement:
“There’s something I forgot to mention. You may not remember this, but when the Judge read the charges to you, there were six charges. At the end of the case, I dismissed Counts 4 and — or excuse me, 5 and 6, because there were some things she just couldn’t say on the stand, for reasons I don’t know. So, in case you remember there were Counts 5 and 6,1 dismissed them and gave you the State’s case.”
A review of the trial record as a whole reveals that the credibility of B.N. was the key issue in the case.
“Generally, a prosecutor may not offer the jury his or her personal opinion as to the credibility of witnesses. [Citation omitted.] On the other hand, a prosecutor is free to craft an argument that includes reasonable inferences to be drawn from the evidence. [Citation omitted.] That latitude would include explaining to the jury what it should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State’s witnesses.” State v. Scaife, 286 Kan. 614, 623-24,186 P.3d 755 (2008).
The prosecutor’s remarks in closing, as Huerta-Alvarez now complains, were generally in the nature of reviewing what B.N. said, asking the juiy to assess the credibility of her statements, and queiying the jury why she would not have made up a more convenient story if in fact she had fabricated the story at all. The argument was within the latitude allowed the prosecutor when the key issue is the credibility of the complaining witness.
On the other hand, the statement in rebuttal by the prosecution concerning the State’s dismissal of Counts 5 and 6 clearly goes beyond the evidence in the case.
“It is well established that the fundamental rule in closing arguments is that a prosecutor must confine his or her comments to matters in evidence. When the prosecutor argues facts that are not in evidence, misconduct occurs, and the first prong of the test for prosecutorial misconduct has been met. State v. Murray, 285 Kan. 503, 512, 174 P.3d 407 (2008). In addition, when a prosecutor refers to facts not in evidence, such statements tend to make the prosecutor his or her own witness who offers unsworn testimony not subject to cross-examination. See [State tz] Pabst, 268 Kan. [501, 510, 996 P.2d 321(2000)]; People v. Hill, 17 Cal. 4th 800, 828, 72 Cal. Rptr. 2d 656, 952 P.2d 673 (1998). This unsworn testimony, ‘although worthless as a matter of law, can be “dynamite” to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.’ ” [Citations omitted.]’ 17 Cal. 4th at 828.” State v. Morris, 40 Kan. App. 2d 769, 791-792, 196 P.3d 422 (2008).
The statement regarding the dismissed counts, therefore, was outside the wide latitude allowed the prosecution in discussing the evidence.
What is more difficult to assess is whether the statement amounts to plain error, ie., whether the statement prejudiced the jury against the defendant and denied the defendant a fair trial. Application of the first two factors, whether the misconduct was gross and flagrant, and whether it showed ill will on the prosecutor’s part, lead to negative conclusions in the context of the entire trial transcript. There is nothing in the transcript to indicate that the prosecutor consciously sought to exceed the bounds of propriety.
Application of the third factor, whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors, is not simple. This inquiry may not override the first two factors unless the harmless error tests of both K.S.A. 60-261 and Chapman v. California, have been met. Under K.S.A. 60-261, the court must consider whether refusal to grant a new trial is inconsistent with substantial justice. Under Chapman, the court must reach a conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial, in order to affirm the convictions.
While B.N.’s testimony was often less than direct, she was clear that Huerta-Alvarez molested her on at least three occasions. It cannot be said that refusal to grant a new trial is inconsistent with substantial justice. While the prosecutor s remarks were inappropriate, it is unlikely, in the context of the trial as a whole, that the outcome of the trial was directly attributable to those remarks.
Sentencing Arguments
Huerta-Alvarez argues that the mandatory minimum sentences in K.S.A. 2006 Supp. 21-4643 are disproportionate and violate the Eighth and Fourteenth Amendments to the United States Constitution and Section 9 of the Kansas Constitution Bill of Rights. He also argues that the district court erred in denying his motion for departure from the life sentence because there were substantial and compelling reasons to grant it.
We have addressed similar arguments in three recent decisions. See State v. Spotts, 288 Kan. 650, 206 P.3d 510 (2009); State v. Thomas, 288 Kan. 157, 199 P.3d 1265 (2009); State v. OrtegaCadelan, 287 Kan. 157, 194 P.3d 1195 (2008); but see State v. Seward, 289 Kan. 715, 217 P.3d 443 (2009). Because the sentence in this case has been vacated, we need not reach these issues here.
Finally, Huerta-Alvarez argues that imposition of the aggravated grid box number, 61 months, for his conviction under Count 2 of the complaint, aggravated indecent liberties not subject to sentencing under K.S.A. 2006 Supp. 21-4643, violates the holding of Apprendi v. New Jersey, because no aggravating circumstances were submitted to or found by a jury. Huerta-Alvarez concedes that this issue has been decided against him in the court’s decision in State v. Johnson, 286 Kan. 824, 840-52, 190 P.3d 207 (2008), but includes the issue to preserve it for federal review. There is no reason for us to revisit the issue. We dismiss this claim for lack of jurisdiction.
Huerta-Alvarez’ convictions are affirmed. The claim regarding sentence for Count 2 of the second amended complaint is dismissed. The sentence on Count 4 of the second amended complaint is vacated, and the case is remanded for resentencing under the Kansas Sentencing Guidelines Act on that count.
Davis, C.J., not participating. | [
-48,
-22,
-35,
126,
26,
97,
42,
56,
19,
-13,
54,
-45,
-85,
-53,
5,
121,
30,
63,
84,
105,
-47,
-73,
-121,
-119,
-42,
-13,
-80,
-36,
-70,
91,
-26,
-4,
78,
80,
-54,
-43,
38,
-54,
-28,
92,
-118,
7,
-118,
-16,
82,
2,
38,
47,
26,
15,
49,
29,
-13,
10,
28,
-45,
45,
44,
91,
61,
50,
-13,
-5,
-107,
-34,
20,
-93,
32,
-67,
7,
-48,
55,
24,
57,
0,
-24,
115,
-92,
-110,
116,
111,
-119,
-127,
37,
98,
33,
45,
-42,
-68,
-119,
-81,
90,
-67,
-90,
-104,
89,
96,
44,
-65,
-104,
100,
20,
43,
-6,
-29,
108,
127,
100,
-120,
-117,
-28,
-111,
-51,
112,
18,
-66,
-29,
37,
1,
101,
-41,
-90,
92,
-43,
58,
-41,
-82,
-78
] |
The opinion of the court was delivered by
Biles, J.:
Rashawn T. Anderson directly appeals from the denial of his pre-sentence motion to withdraw his no contest plea for first-degree murder. The district court found Anderson had not established good cause to support his motion. Anderson argues the district court erred because his attorney admitted in court that he did not explain to Anderson the meaning of the plea agreement’s recommended concurrent sentence and misled Anderson about the possible prison term. But the attorney recanted these statements under oath in a later proceeding. This left it to the district court to determine which statements were credible.
We affirm because we find the district court did not abuse its discretion by resolving those credibility determinations against Anderson and denying his motion to withdraw his plea.
Factual and Procedural Background
A grand jury indicted Anderson of first-degree premeditated murder and criminal possession of a firearm for the July 18, 2005, killing of McCoy Caraway in Shawnee County. While this prosecution was pending, a jury convicted Anderson of second-degree murder and aggravated battery in Douglas County for an unrelated matter. Anderson was sentenced to a total of 187 months’ imprisonment (15 years, 7 months) for the Douglas County convictions, which Anderson is also appealing. See State v. Anderson, No. 99,123, unpublished opinion filed March 20,2009 (Kan. App.), rev. granted 290 Kan. 1095 (2010) (review pending).
In the Shawnee County case at issue here, Anderson was represented by Steven Rosel, who negotiated a plea agreement. Under a written agreement signed by Anderson, he pleaded no contest to first-degree murder in exchange for dismissal of the criminal possession of a firearm charge and a joint sentencing recommendation that Anderson’s sentence run concurrent to the Douglas County sentence. First-degree murder is an off-grid felony. K.S.A. 21-3401. Anderson’s presumptive sentence for this offense required a mandatory minimum of 25 years’ imprisonment served before becoming eligible for parole. K.S.A. 22-3717(b)(l). The plea agreement did not recommend a departure sentence.
At the plea hearing, the Shawnee County District Court explained to Anderson that the agreement recommended a concurrent sentence and the first-degree murder conviction carried a life sentence with a mandatory minimum of 25 years. But the district court did not specifically explain that Anderson’s sentence would extend almost 10 years beyond the concurrent Douglas County sentence because the mandatory minimum for first-degree murder carried the longer mandatory sentence (hard 25 life). Anderson testified at the plea hearing that he understood the agreement’s provisions and the possible sentence. But immediately before entering his plea, Anderson conferred with his attorney off-record. Then, Rosel indicated Anderson was ready to proceed. Anderson pleaded no contest.
A few weeks later, but before sentencing, Rosel filed a one sentence motion to withdraw Anderson’s plea. No grounds were stated to support withdrawal. Rosel would later testify he did not know Anderson’s reasons for wanting to withdraw his plea at the time the motion was filed.
It is worth noting that Rosel continued to represent Anderson at the first hearing on the motion to withdraw plea. This resulted in Rosel appearing on behalf of Anderson at a hearing in which Anderson and Rosel would discuss whether Rosel sufficiently informed Anderson of his rights before the plea was entered.
At this first hearing on the motion to withdraw Anderson’s plea, none of the discussion occurred under oath. Anderson alleged Rosel told him during the plea negotiations that Anderson could plead no contest to attempted murder and not serve additional time for the first-degree murder conviction. But, Anderson continued, when the written plea agreement was presented those terms had changed. Anderson claimed further that he asked Rosel during the plea hearing why the court had said the presumptive sentence carried a mandatory minimum of 25 years and Rosel told him not to woriy about it. Anderson also said he was assured by Rosel that he would only serve the “15-year sentence” he was already serving in the Douglas County case.
For his part, Rosel admitted that he talked to Anderson and his family about amending the charge to attempted murder. Rosel also said he understood why Anderson believed he would not serve any more time than he had already received in the Douglas County case. Rosel then stated that “somewhere in there my advice to him was inaccurate, in that he would not receive any more time than fifteen years.” Rosel could not say “clearly and conclusively” that he did not mislead Anderson.
In response to Anderson’s claim that Rosel privately contradicted the court’s explanation of the sentence in the off-record conversation at the plea hearing, the court asked Rosel if that was how he remembered the discussion. The following exchange ensued:
“Mr. Rosel: I believed — I believe that — I believe that he’s accurate. I believe what he’s told you. I believe he’s accurate. I believe at the time that I misled him in that concurrent, maybe I wasn’t clear enough in that concurrent. I knew what concurrent was; fifteen years of it was going to be concurrent.
“THE COURT: Well, but what he said is that you told him, ‘You won’t get any more time than what you got in Lawrence.’ That’s different from concurrent. I mean you can serve—
“Mr. Rosel: I believe that I did tell him that.
“THE COURT: That he would only get fifteen years?
“Mr. Rosel: That he wouldn’t get any more time than in Lawrence, I believe th[o]se were my words, yeah.”
But after that exchange Rosel questioned his own recollections, saying he really was not certain by stating, “I mean Mr. Anderson indicates that’s what his recollection is; mine is — mine is — I’m not sure. I don’t know.”
Since none of these facts were alleged in the motion to withdraw, the State was unprepared to address them. The court scheduled an evidentiary hearing. The court appointed a new attorney to represent Anderson. At that evidentiary hearing, Anderson, his father, his uncle, and Rosel were witnesses.
Anderson testified he told Rosel during their first meeting that he wanted a jury trial and Rosel agreed with this because he believed the State had a weak case. Anderson also claimed that Rosel did not discuss any of Anderson’s possible trial defenses with him during the three or four times they met. Anderson said further that he and Rosel discussed a plea deal 2 or 3 weeks before trial. Later, Anderson continued, Rosel confirmed to him that the State agreed to amend the charges to attempted murder, so the sentence would run concurrently with his sentence in the Douglas County case— meaning Anderson would not serve additional time.
Anderson also testified that the day he signed the plea agreement he only skimmed it and did not realize he was pleading to first-degree murder rather than the previously discussed attempted murder charge. Anderson said he asked Rosel whether he would receive the agreed to “15-year sentence” and Rosel assured him he would. Regarding the off-record discussion Anderson and Rosel had at the plea hearing, Anderson testified he asked Rosel about the charge and sentence and Rosel told him not to worry about it. Finally, Anderson testified he would have gone to trial if he understood that he would serve additional time for the Shawnee County conviction.
Anderson’s father said his understanding was that Rosel was trying to get the first-degree murder charge lowered to attempted murder, which would reduce Anderson’s sentence so he would not serve more than the 15 years, 7 months already ordered in the Douglas County case. The father also said Rosel assured him both before and after the plea hearing that Anderson would not receive additional time, even though the judge stated the plea would cany a presumed life sentence with a mandatory minimum of 25 years. Finally, the father testified he spoke to Rosel after the first hearing on Anderson’s motion to withdraw and Rosel said he would not tell the court under oath that he misled Anderson. Anderson’s uncle provided similar testimony, saying that Rosel told him the State would amend Anderson’s charge so the sentences would run concurrently and Anderson would not serve additional prison time.
In Rosel’s testimony, the State asked him if Anderson understood the plea agreement before he signed it. Rosel testified they read it together. He also recalled that Anderson said he thought he was going to plead to attempted murder, but Rosel told him the State rejected the offer to reduce the charge to attempted murder. Rosel then testified he believed Anderson “understood the consequences of entering the plea to first-degree premeditated murder.” Rosel further testified he told Anderson before the no contest plea hearing that the plea agreement could result in an additional 10-year prison sentence beyond the Douglas County sentence.
The only time Rosel was questioned about his prior contradictory comments at the first hearing was when the State asked him what he and Anderson discussed off the record during the plea hearing. Rosel testified Anderson asked whether his sentence would still run concurrent with the sentence in the Douglas County case. Rosel said he told Anderson that was still the recommended sentence pursuant to the plea agreement. Rosel also said he believed Anderson changed his mind about the plea when Anderson’s family intervened. Finally, Rosel testified that he did not mislead, coerce, mistreat, or take advantage of Anderson.
Both parties submitted written briefs after the evidentiary hearing on whether Anderson should be allowed to withdraw his plea. Relevant to this appeal, Anderson argued good cause was shown because Rosel misled him into believing he would plead to an amended charge of attempted murder and that he would receive a sentence concurrent to the “15-year sentence” ordered in the Douglas County case. Anderson also claimed the plea was not fairly and understandingly made because Rosel gave him conflicting and misleading advice during the plea hearing, citing his allegations that Rosel told him not to worry about the court’s statement that the charge carried a mandatory minimum term of 25 years. The State argued Anderson had not established good cause to withdraw his plea, citing Rosel’s testimony at the evidentiary hearing in which he recanted his earlier statements. The State also argued the district court’s inquiry at the plea hearing cured any confusion Anderson claimed he had because of his attorney’s representations.
The district court denied Anderson’s motion to withdraw his plea, making the following factual findings pertinent to the issue on appeal:
“11. The evidence indicates Rosel may have been less than candid with Anderson’s father, mother, and uncle. However, none of those people were Rosel’s clients.
“12. The evidence does indicate Rosel did keep Anderson apprised of the ongoing plea negotiations and that Anderson understood them. To the extent Anderson now claims he did not understand the terms of the written plea agreement, or that he did not assent to those terms, such claims are rejected by the Court as unreliable, and therefore, false.
“14. Initially, there was some concern in the Court’s mind that Rosel contradicted the Court’s statements for conviction of Murder in the First Degree. However, Rosel testified at the hearing on December 2, 2008, that he did not contradict the Court at the plea hearing and that Anderson had been advised of the possible sentence before the plea hearing. Finally, Rosel testified that his own statements to Anderson concerning the possible sentence were consistent with the statements made by the Court to Anderson at the Plea hearing. The Court is satisfied that Anderson understood the potential sentence for Murder in the First Degree, the crime of conviction in this case, before Anderson’s plea of ‘No Contest’ was accepted by the Court.”
The district court then held Anderson failed to establish good cause to withdraw his plea because: (1) Rosel was competent, and there was no credible evidence that his performance in representing Anderson fell below an objective standard of reasonableness; (2) the plea agreement benefitted Anderson because it reduced his mandated sentences he would have received for both convictions from over 40 years to 25 years; (3) Anderson was not misled, coerced, mistreated, or taken advantage of; (4) the plea was fairly and understandingly made; and (5) Anderson was aware of the consequences of the plea.
Anderson filed a timely notice of appeal. This court has jurisdiction under K.S.A. 22-3601(b)(l) (direct appeal for off-grid crime; life sentence).
Analysis
The issues presented require us to review the district court’s factual findings, as well as the district court’s decision to deny Anderson’s motion to withdraw his plea. A district court’s factual findings are reviewed for substantial competent evidence. State v. Gonzalez, 290 Kan. 747, 756, 234 P.3d 1 (2010). Appellate courts review a district court’s decision in a presentence motion tQ withdraw a plea for abuse of discretion. See State v. Williams, 290 Kan. 1050, 1053, 236 P.3d 512 (2010); K.S.A. 22-3210(d). But the district court’s decision must be based upon a correct understanding of the law to receive the full measure of the abuse of discretion standard. Anderson bears the burden of establishing an abuse of discretion. See 290 Kan. at 1053. Appellate courts will not reverse a district court’s order under an abuse of discretion standard unless no reasonable person would agree with the trial court’s decision. State v. Ernesti, 291 Kan. 54, 65, 239 P.3d 40 (2010). Appellate courts do not reweigh the evidence or assess witness credibility. Instead, appellate courts give deference to the trial court’s findings of fact. State v. Appleby, 289 Kan. 1017, 1038, 221 P.3d 525 (2009).
Before sentencing, a defendant must establish good cause for a plea withdrawal. K.S.A. 22-3210(d). District courts consider three factors when determining if a defendant demonstrates good cause: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. Williams, 290 Kan. at 1053. But all three factors need not apply in a defendant’s favor. The district court also may consider other factors when determining whether good cause is shown. 290 Kan. at 1054 (citing State v. Aguilar, 290 Kan. 506, 512-13, 231 P.3d 563 [2010]). Anderson argues all three factors have been satisfied, but his arguments are almost indistinguishable as to each.
First, Anderson claims Rosel failed to adequately explain what was meant for the sentence in this case to run concurrent to the Douglas County sentence. The failure to do so, Anderson argues, amounts to incompetent representation, misleading advice, and resulted in Anderson entering a plea that was not understandingly made. There is some support in the record for Anderson’s argument. At the initial hearing on the motion, Rosel stated he may have misinformed Anderson he would not need to serve any additional time for the conviction in this case. He added that he could not conclusively say he did not mislead Anderson. Rosel said further that he may have told Anderson he would only get a concurrent “15-year sentence” under the plea agreement. But Rosel later recanted those statements under oath at the evidentiary hearing. There, Rosel testified he reviewed the plea agreement with Anderson before he signed it, explained that Anderson could receive an additional 10 years if he pleaded no contest to first-degree murder, and thought Anderson understood the consequences of this plea. Rosel’s testimony is problematic when compared to his dialogue with the district court at the first hearing on the motion to withdraw plea because only one version can be true. Resolution of this issue turns on a credibility determination.
In this case, the same district court judge presided over all proceedings and was in a better position to determine credibility. In the end, the district court believed Rosel’s testimony at the evidentiary hearing. The district court found Rosel apprised Anderson of the plea negotiations and that Anderson understood them. The court also discredited Anderson’s testimony that he did not understand or agree to the terms of his plea as unreliable and false. And regarding the off-record discussion Rosel and Anderson had during the plea hearing before entering the plea, the district court held Rosel did not contradict the court’s statements to Anderson about the possible sentence that could result from the plea. Therefore, while the record might support a contrary finding, the district court’s factual findings are supported by substantial competent evidence.
Next, Anderson argues Rosel was incompetent in light of his family’s testimony that Rosel told them the State had reduced the charges to attempted murder and Anderson would not serve any additional time. The district court lends some credence to this claim by holding that Rosel “may have been less than candid” with the family. But the district court also noted this was irrelevant to the issue at hand, which was whether Rosel’s representation of Anderson was competent.
On appeal, Anderson admits Rosel did not owe his family a duty to be candid. But Anderson argues the family’s testimony demonstrates Anderson did not understand the plea agreement’s implications and is further evidence of Rosel’s incompetence. The problem with this argument is that Anderson did not testily that he relied upon his family’s statements when entering the plea agreement. Furthermore, the argument contradicts the district court’s finding that Anderson understood the plea agreement’s terms.
Next, Anderson claims his young age and limited education made him dependent upon Rosel to accurately advise him about the ramifications of entering into the plea agreement. Anderson contends the district court’s inquiry and explanation did not remedy his confusion because Rosel told him not to worry about it immediately before he entered his plea. He also argues these errors are evidence the plea was not understandingly made and that he was misled. But this argument requires another credibility determination because there is no record of Rosel’s discussion with Anderson before Anderson pleaded no contest. As to this point, the district court acknowledged that it was initially concerned Rosel had contradicted the court’s statements, but then Rosel later testified otherwise and the court was satisfied with Rosel’s explanation. This credibility determination was bolstered by Anderson’s plea hearing testimony when he stated he understood the written agreement’s provisions and that there was nothing about the possible sentence he did not understand or want clarified.
Finally, Anderson’s appellate brief makes one vague reference to Rosel’s “questionable decisions and lack of diligence,” as outlined in his posthearing trial brief. We need not address that claim further. An issue not briefed or raised incidentally but not argued is deemed abandoned. State v. Plotner, 290 Kan. 774, 777, 235 P.3d 417 (2010).
Ultimately, the district court determined Anderson’s testimony was not credible. It found Rosel’s testimony from the evidentiary hearing more believable. The district court did not abuse its discretion in finding good cause was not shown and denying Anderson’s motion to withdraw his plea.
Affirmed. | [
80,
-24,
-11,
-34,
24,
-32,
58,
24,
121,
-13,
100,
83,
107,
-50,
1,
123,
59,
63,
85,
105,
64,
-73,
35,
-47,
-74,
-13,
-47,
-43,
-77,
-21,
-68,
-36,
72,
64,
10,
-43,
-26,
90,
-89,
-48,
-118,
9,
-103,
-30,
-62,
-125,
48,
107,
30,
11,
37,
-114,
-5,
43,
58,
-62,
-55,
45,
91,
-85,
80,
-111,
-125,
-113,
79,
20,
-93,
-91,
-100,
6,
120,
46,
-100,
57,
0,
-24,
115,
-122,
-122,
52,
109,
-119,
44,
-26,
99,
1,
92,
-49,
-84,
-103,
31,
127,
-67,
-90,
-104,
89,
107,
5,
-106,
-3,
119,
54,
15,
122,
111,
5,
121,
108,
-117,
-42,
-112,
-111,
-117,
53,
2,
123,
-21,
0,
32,
101,
-49,
-30,
92,
119,
120,
83,
-5,
-112
] |
The opinion of the court was delivered by
Biles, J.:
This appeal comes on cross-petitions for review following a workers compensation award. Todd L. Mitchell, the injured employee, challenges the Workers Compensation Board’s method for calculating his permanent partial disability award. His first issue is whether the Board erred in combining his multiple left arm and right arm injuries into a scheduled injury for each arm at the shoulder level. We hold it was error to combine these injuries. A variation of this issue is decided in Redd v. Kansas Truck Center, 291 Kan. 176, 239 P.3d 66 (2010).
Mitchell’s second issue attacks the Board’s decision to deduct the number of weeks awarded for temporary total disability from the number of weeks allotted on the K.S.A. 44-510d schedule to calculate his permanent partial disability award. We hold the Board properly deducted the weeks of temporary total disability.
Finally, each of the two insurance carriers involved seeks to shift responsibility to the other by challenging the decision to impose joint and several liability for certain injuries suffered by Mitchell. We hold the Board’s order imposing joint and several liability should be affirmed because the evidence supports the Board’s finding that Mitchell’s repetitive trauma injuries resulted from a combination of the initial injury that began these proceedings and subsequent work activities.
Factual and Procedural Background
The facts are not in dispute. On December 31, 2003, Mitchell fell while working at Petsmart, Inc., and broke his left thumb. He underwent surgery and returned to work with a cast on his left arm. He did not miss any work. Mitchell’s job responsibilities included building displays, transporting merchandise to the sales floor, and stocking the shelves with dog food weighing up to 50 pounds. Mitchell testified he wore the cast on his left arm for about 12 weeks but continued to complete his regular job tasks using primarily his right arm.
When Mitchell broke his left thumb, Petsmart was insured by Royal & Sun Alliance Insurance Company. But on February 1, 2004, 1 month after the injury, Travelers Property and Casualty Company of America began insuring Petsmart.
On March 2, 2004, Mitchell filed his first workers compensation claim (No. 1,015,618) against Petsmart, naming Royal as the insurer. Mitchell alleged the December 31, 2003, fall caused his work-related injury. He claimed injuries to his “hand, thumb, arm and all parts affected thereby.” Later, this claim was amended to allege the date of accident for purposes of the statutory claims process included subsequent aggravations after December 31, 2003. The amendment also expanded the claimed injuries to include “bilateral hands, shoulders, arms and all other body parts affected.”
On April 5, 2004, which appears to be the date the cast was removed, Mitchell was released at maximum medical improvement. He testified he continued to rely on his right arm for most lifting activities for at least another month after the cast was taken off because his left arm remained stiff and weak.
Dr. Pedro Murati examined Mitchell for complaints of left thumb and hand pain and weakness. For the left thumb, Dr. Murati determined Mitchell suffered a 20 percent impairment for lateral instability and a 14 percent impairment for loss of motion, which Dr. Murati converted to 8 and 6 percent hand impairments, respectively. He assigned an additional 12 percent hand impairment for sensory deficits in the thumb. For the weakness in Mitch ell’s left hand, Dr. Murati assigned an 11 percent hand impairment. Dr. Murati then combined these for a total of 32 percent impairment to the left hand. He did not convert this into a left upper extremity impairment. Dr. Murati’s recommended restrictions were to “work as tolerated and use common sense.”
On July 18, 2004, Mitchell reported pain in his right arm. Pets-mart sent Mitchell to Dr. Mark Dobyns, who treated Mitchell with Ibuprofen and a cortisone shot. Mitchell testified Dr. Dobyns restricted him from lifting more than 10 pounds with his right arm, so Mitchell switched back to primarily using his left arm to complete his job duties. Dr. Murati also evaluated Mitchell for right shoulder pain. He diagnosed probable right carpal tunnel syndrome with pain in his right shoulder, right rotator cuff sprain or tear, and right shoulder pain with instability. Dr. Murati attributed these impairments to a work-related injury occurring on July 23, 2004. This appears to be an error because July 23 does not have any other significance to this litigation. Dr. Murati probably meant to refer to the date Mitchell reported right arm pain, July 18,2004.
On October 20, 2004, Mitchell notified Petsmart his left arm and shoulder hurt. On October 25, 2004, Mitchell filed a second claim against Petsmart and Royal (No. 1,019,828) for overuse of extremities, listing an accident date of July 18, 2004, the date Mitchell initially reported pain in his right arm and each day worked thereafter. This second claim alleged injury to “bilateral hands, shoulders, and all parts affected.” Travelers was substituted later as the insurance carrier for this claim.
In November 2004, Dr. Bernard Hearon diagnosed Mitchell with a superior labum anterior to posterior (SLAP) lesion on his right shoulder, and surgeiy was performed in January 2005. On February 24,2005, Dr. Hearon diagnosed a SLAP lesion on Mitchell’s left shoulder and restricted overhead work on the left side. Dr. Hearon recommended surgeiy to treat the second SLAP lesion, but Mitchell refused.
Petsmart terminated Mitchell for poor attendance on July 19, 2005. His last day worked was July 15, 2005. The same day he was terminated, Mitchell returned to Dr. Hearon, complaining of bilateral upper extremity tingling and numbness. He was diagnosed with bilateral carpal tunnel syndrome and possible bilateral cubital tunnel syndrome (cubital relates to the elbow). A nerve conduction test confirmed cubital tunnel syndrome for his right upper extremity. Nerve tests did not support a finding for left cubital tunnel syndrome. On August 15,2005, Dr. Hearon performed right carpal tunnel release surgery followed by physical therapy. Mitchell was released without restrictions on September 27, 2005.
Mitchell returned to Dr. Murati on December 21, 2005, with continued complaints of right and left shoulder pain, pain in his left hand, and right hand weakness. Dr. Murati diagnosed him with a 36 percent right upper extremity impairment for the status postright carpal tunnel release, status postright subacromial decompression, status postright distal clavicle excision, right ulnar cubital syndrome, and loss of shoulder motion. Dr. Murati then converted this to a 22 percent whole body impairment. Dr. Murati also found a 15 percent left upper extremity impairment for left carpal tunnel syndrome and mild glenohumeral crepitus of the left shoulder, which he converted to a 9 percent whole body impairment. Finally, Dr. Murati combined the 22 and 9 percent whole body calculations into a 29 percent whole person impairment. He found the injuries were caused by a work-related injury occurring on July 18, 2004 (the date the injury was reported), and every day thereafter.
The ALJ Award
The administrative law judge (ALJ) consolidated Mitchell’s two workers compensation claims. In both cases, the parties entered into stipulations. In No. 1,015,618, pertaining to the left thumb injury, the parties agreed Mitchell injured his thumb on December 31, 2003, because of his employment. They also stipulated Mitchell’s average weekly wage was $560.90, excluding fringe benefits. Petsmart and Royal denied Mitchell suffered any other injury for which they would be responsible. In the second claim, No. 1,019,828, the parties agreed that Travelers insured Petsmart during the time period at issue in the case and that Mitchell’s wage was $576.32, including fringe benefits. Petsmart and Travelers did not stipulate Mitchell was injured during Travelers’ coverage period.
The ALJ ordered an independent medical evaluation with Dr. Pat Do, who diagnosed: (1) status postright carpal tunnel release; (2) status postleft thumb ulnar collateral ligament repair; (3) status postright shoulder subacromial decompression, rotator cuff repair, distal clavicle excision, and SLAP repair; and (4) left shoulder pain. Dr. Do concluded that all of these injuries resulted from the December 31, 2003, left thumb break and were the natural consequence of overuse following surgery of the uninvolved extremity.
The ALJ found Mitchell suffered an injury on December 31, 2003, and provided the following description of events:
“The claimant in this case was stepping backwards to get clear of a truck of some land that was working in the isle [sic] of the store at Petsmart. But as he stepped backwards he tripped and put out his left hand to .catch himself and his left thumb was broken and bent severely. He never lost work over that particular injury even though a screw was later put in [his left hand] that was done on his days off and he continued to work and continued to use the right hand more than he did the left hand as he was favoring the left hand because of the thumb injury. From that he had several other problems including but not limited to carpal tunnel on the right hand and he had surgery on it. Then he had shoulder problems and then he had elbow problems so the whole right upper extremity and part of the left extremity had several arthroscopic surgeries and he continued to have all kinds of.problems.”
The ALJ then calculated Mitchell’s injuries as a general body disability under K.S.A. 44-510e — instead of using the scheduled injuries set out in K.S.A. 44-510d. The ALJ then averaged the impairment ratings given by Drs. Murati and Do, which resulted in a permanent partial disability award of $85,354.09. The ALJ did not award temporary total disability.
The ALJ’s order did not specifically address whether the secondary injury rule, which permits compensation for a subsequent injury if it is a natural and probable consequence of the primary injury, applied to the bilateral shoulder and right elbow injuries. But such a determination is implied in the ALJ’s finding that the accident date was December 31, 2003, which is when Mitchell fell and broke his left thumb. Finally, the ALJ imposed joint and several liability on Royal and Travelers, explaining: “The law is clear that if [insurance carriers] have a disagreement among themselves as to who the responsible carrier is, that should be decided in the District Court . . . [because] we are not authorized to make that determination in the Comp Court.”
Traveler s sought review of the ALJ’s order before the Board. Travelers challenged the nature and extent of Mitchell’s disabilities, the joint and several liability determination, and the ALJ’s failure to award a scheduled injury under K.S.A. 44-510d. Royal and Mitchell did not cross-appeal.
The Board’s Order
The Board did not agree with the ALJ’s calculations for Mitchell’s injuries as a general body disability under K.S.A. 44-510e. The Board held Mitchell’s injuries to both his arms and shoulders must be compensated under the schedules set out in K.S.A. 44-510d, citing Casco v. Armour Swift-Eckrich, 283 Kan. 508,154 P.3d 494 (2007) (See Syllabus Paragraph 7 — Scheduled injuries are the general rule and nonscheduled injuries are the exception. If an injury is on the schedule, the amount of compensation is determined under K.S.A. 44-510d.).
The Board then addressed each claimed injury. For Mitchell’s left thumb, the Board found he suffered a 44.5 percent impairment and awarded Mitchell 26.70 weeks of permanent partial disability at a rate of $373.95, totaling $9,984.47. The Board found Royal solely hable for the left thumb injury award. This finding is not challenged on appeal. For the remaining injuries, the Board found Mitchell suffered repetitive trauma injuries, including bilateral carpal tunnel syndrome, right cubital tunnel syndrome, and bilateral shoulder injuries. The Board explained that when Mitchell returned to work after the thumb surgery, he used his right arm to unload pallets of dog food until the right arm became symptomatic. Then, Mitchell went back to using his left arm to compensate for the right shoulder pain, and the left arm also became symptomatic.
The Board also expressly found Mitchell’s arm and shoulder injuries, which occurred after he broke his left thumb, resulted from a combination of Mitchell’s work duties and his initial thumb injury. The Board referenced Dr. Murati’s testimony as establishing Mitchell’s routine work activities contributed to his subsequent in juries. It also cited Mitchell’s and Dr. Do’s testimony that the left thumb break was a contributing factor. The Board held:
“[I]t cannot be said those additional repetitive trauma injuries to claimant’s arms and shoulders would have occurred without the strenuous work that claimant performed after his thumb surgery. Likewise, it cannot be said claimant would have developed these injuries without the initial thumb injury. Consequently, the Board finds and concludes the combination of claimant’s work activities and his initial thumb injury resulted in claimant developing bilateral carpal tunnel syndrome, right elbow symptoms, and bilateral shoulder injuries.” (Emphasis added.)
But the Board disagreed over how to calculate Mitchell’s compensation. A majority combined the separate injuries to each upper extremity and then made one award each for the right and left upper extremities. They listed the date of injury as Mitchell’s last day worked, July 15,2005. For the right upper extremity, the Board awarded $29,238.19 — $6,706.44 temporary total disability benefits and $21,651.86 permanent partial disability benefits. Mitchell was awarded $6,706.44 in permanent partial disability for his left upper extremity.
Two dissenters disagreed with the majority’s method of combining injuries. They argued Mitchell’s disabilities should be calculated at each level specified in the statutory schedule that contained an injury because K.S.A. 44-510d does not contain any language authorizing the Board to combine injuries. Under the minority’s approach, each injury to the fingers, hand, forearm, arm, and shoulder would be compensated separately under the schedule regardless of whether the injuries occur separately, simultaneously, or are progressive. This disagreement over combining impairments under K.S.A. 44-510d when there are multiple injuries to scheduled members is a recurring controversy. See Redd, slip op. at 13-27.
Finally, the entire Board agreed with the ALJ and ordered joint and several liability against Royal and Travelers for the medical treatment and disability compensation for Mitchell’s bilateral carpal tunnel syndrome, right elbow symptoms, and bilateral shoulder injuries. The Board reasoned that joint and several liability was appropriate based on its factual finding that Mitchell’s initial left thumb injury and subsequent work activities combined to cause those injuries.
Travelers appealed. It contended the Board erred by finding more than one date of injuiy, arguing the secondary injury rule applied and that Mitchell’s extremity impairments were the natural and probable consequence of the left thumb injury. This error, Travelers claimed, led the Board to mistakenly impose joint and several liability on Travelers and Royal because Royal was the insurer at risk when the left thumb was broken. Mitchell filed a cross-appeal. He argued the dissenting board members were correct in finding he should have received separate awards at each injuiy level and the Board majority erred by combining his injuries to the highest level for the right and left extremities on the statutory schedule. He also claimed the Board erred by deducting the weeks of temporaiy total disability from the 225 weeks allotted on the schedule.
The Court of Appeals held: (1) The secondary injury rule did not apply because there was sufficient evidence supporting the Board’s decision that a combination of the left thumb break and Mitchell’s subsequent work activities caused his injuries; (2) it was appropriate to combine Mitchell’s extremity impairments to the highest level of the extremity because the K.S.A. 44-5l0d schedule is progressive, i.e., the higher up the extremity the more weeks are awarded; and (3) K.A.R. 51-7-8 allows for the credit of temporary total disability paid when a claimant is awarded those temporary benefits followed by a permanent partial disability. Mitchell v. Petsmart, Inc., 41 Kan. App. 2d 523, 203 P.3d 76 (2009). The Mitchell panel also affirmed the joint and several liability imposed on the two insurance carriers, presumably because the panel believed its decision on the secondaiy injuiy rule resolved that controversy. But the panel’s decision is not specific as to this point.
Both Travelers and Mitchell filed petitions for review, which we granted. Jurisdiction is proper under K.S.A. 20-3018(b) (review of a Court of Appeals’ decision).
We address the issues raised in the following order: (1) whether the Board erred in calculating Mitchell’s permanent partial disability award by combining his extremity impairments to the highest level of the extremity; (2) whether the Board erred by deducting Mitchell’s temporaiy total disability in calculating his permanent partial disability; and (3) whether the Board erred by assigning joint and several liability to both Royal and Travelers.
Issue One: Permanent Partial Disability Calculation
Mitchell argues the Board majority improperly combined his multiple left and right arm injuries into one scheduled injury for each arm at the shoulder level. Instead, Mitchell argues his injuries should have been compensated separately according to the schedule in K.S.A. 44-510d at the level corresponding to each injury. Travelers asserts it was proper to combine these injuries into two awards, noting the number of weeks assigned to each arm at the shoulder level on the statutory schedule includes the value of the lower members.
The Mitchell panel agreed with Travelers. 41 Kan. App. 2d at 537. But the Board has used, and other Court of Appeals panels have affirmed, conflicting methods for calculating an award under similar circumstances. See, e.g., Redd v. Kansas Truck Center, 2008 WL 4149955, at *12 (Work. Comp. Bd., No. 1,020,892, filed August 27, 2008); Conrow v. Globe Engineering Co., No. 99, 718, unpublished Court of Appeals opinion filed March 13, 2009. This statutory interpretation issue is a question of law over which we have unlimited review. See Redd, 291 Kan. at 187; Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010).
The Mitchell panel interpreted K.S.A. 44-510d to allow compensation at the highest level of injury when multiple injuries occur within a single extremity. It noted the statutory structure of the scheduled injuries is progressive, meaning an injured worker is entitled to more weeks if the injury occurs at a higher level, i.e., 200 weeks for a forearm, but 210 weeks for the loss of an arm. 41 Kan. App. 2d at 537-38. The panel also relied upon Casco, 283 Kan. at 522, which found that if an injury is on the schedule, the amount of compensation stated in the statutory schedule includes compensation for the complete loss of the member or the partial loss of the member. The panel then reasoned that because the number of weeks is reduced by the percentage of the loss, “the principle of compensating an extremity at the highest level affected applies regardless of whether the loss is total or partial.” 41 Kan. App. 2d at 537. In the end, this justified the Board majority’s statutory interpretation, which the Mitchell panel found was entitled to judicial deference. 41 Kan. App. 2d at 538.
But in Redd, a Board majority awarded an injured worker five scheduled injuries to his left hand, left forearm, left arm, right forearm, and right arm. The employer argued the Board was required to combine the individual impairment ratings into a whole body impairment because K.S.A. 44-510d(a)(23) requires loss of a scheduled member be based on the permanent impairment of function to that member as determined using the American Medical Association Guides to Evaluation of Permanent Impairment (4th ed. 1995) (Guides). The Guides instruct physicians to generate a whole body impairment rating as part of a recommended three-step evaluation process. We agreed that this created an ambiguity in the statute, but we rejected the employer’s statutory interpretation in Redd, 291 Kan. at 194, because it rendered meaningless the statutory schedules set out in K.S.A. 44-510(d)(a)(l)-(22) .
To reach this conclusion, we analyzed the governing statutes from the Workers Compensation Act, K.S.A. 44-501 et seq.; the case law interpreting those statutes; the Guides; and the legislative history for K.S.A. 44-510(d)(a)(23). We found the legislature created its own statutory mechanism to calculate permanent partial disability awards in K.S.A. 44-510d and K.S.A. 44-510e. Thus, the more reasonable interpretation for K.S.A. 44-510d(a)(23) was that the legislature meant to adopt the evaluation requirements and methods for combining impairments to the same statutorily specified level, but not the Guides’ process for combining multiple scheduled injuries occurring at different levels or on different members. Redd, 291 Kan. at 196.
For example, if there are several injuries causing impairment to an injured worker’s thumb, those injuries should be combined to generate a total impairment to the thumb because it is specifically identified in K.S.A. 44-5lOd. But the thumb injury should not be combined with a scheduled injury to the hand, which also is specifically identified in the statute. This view, we reasoned in Redd, 291 Kan. at 198, maintains the Guides’ purpose of bringing greater objectivity to the physician’s task of estimating the magnitude of permanent impairments but also allows for application of the scheduled injury calculations specified in the statute. See K.S.A. 44-510d(a)(l)-(22).
In Redd, we also touched on the Mitchell panel’s decision to combine impairments to the highest level of the extremity, by stating:
“Admittedly, [the Mitchell] approach does not render the statutory schedule meaningless, but it does read something into K.S.A. 44-510d(a)(l)-(22) that does not exist. The schedule does not contain any language requiring the combination of scheduled injuries, and the panel does not explain where it finds the authority permitting the Board to combine injuries in the manner the panel approved.” (Emphasis added.) Redd, 291 Kan. at 198.
While in Redd we found that the adoption of the Guides in K.S.A. 44-510d(a)(23) created an ambiguity in the statute, the schedule’s plain language helps us resolve the arguments made by Travelers and adopted by the Court of Appeals’ panel in this case. See Higgins v. Abilene Machine, Inc., 288 Kan. 359, 362, 204 P.3d 1156 (2009) (Canons of statutoiy construction are used to resolve an ambiguity only if the plain reading of a statute yields an ambiguity or lack of clarity.). We find the statutoiy schedule plainly does not authorize the combining of impairment values to be found for the specific scheduled members identified in K.S.A. 44-510d(a)(l)-(22).
K.S.A. 44-5lOd defines a permanent partial disability as a disability “partial in character but permanent in quality.” K.S.A. 44-510d(a) then states permanent partial disability compensation “is to be paid for not to exceed the number of weeks allowed” in the following schedule:
“(1) For the loss of a thumb, 60 weeks.
“(12) For the loss of a forearm, 200 weeks.
“(13) For the loss of an arm, excluding the shoulder joint, shoulder girdle, shoulder musculature or any other shoulder structures, 210 weeks, and for the loss of an arm, including the shoulder joint, shoulder girdle, shoulder musculature or any other shoulder structures, 225 weeks.
“(21) Permanent loss of the use of a finger, thumb, hand, shoulder, arm forearm, toe, foot, leg or lower leg . . . shall be equivalent to the loss thereof. For the permanent partial loss of the use of a finger, thumb, hand, shoulder, arm, toe, foot or leg, or the sight of an eye or the hearing of an ear, compensation shall be paid as provided for in K.S.A. 44-S10c . . . per week during that proportion of the number of weeks in the foregoing schedule provided for the loss of such finger, thumb, hand, shoulder, arm, toe, foot or leg, or the sight of an eye or the hearing of an ear, which partial loss ihereofbears to the total loss of a finger, thumb, hand, shoulder, arm, toe, foot or leg, or the sight of an eye or the hearing of an ear; but in no event shall the compensation payable hereunder for such partial loss exceed the compensation payable under the schedule for the total loss of such finger, thumb, hand, arm, toe, foot or leg, or the sight of an eye or the hearing of an ear, exclusive of the healing period. As used in this paragraph (21), ‘shoulder’ means the shoulder joint, shoulder girdle, shoulder musculature or any other shoulder structures.” (Emphasis added.)
There are three relevant points apparent from the statute. First, it does not contain a provision treating multiple injuries differently than singular injuries. Second, it also does not expressly provide for the combination of impairment values. Third, K.S.A. 44-510d(a)(21) states that the permanent partial loss of the “finger, thumb, hand, [arm, or shoulder]” shall be compensated by the number of weeks which the “partial loss thereof bears to the total loss of [the] finger, thumb, hand, [arm, or shoulder] . . . .” It does not provide that the permanent partial loss shall be compensated by the percentage of loss of the extremity.
Unlike the arguments made in Redd, the Mitchell panel did not rely upon the adoption of the Guides as justification for combining impairments. It found the statute’s progressive nature, which allots more weeks for the higher levels of the extremity, justified the Board majority’s decision to combine Mitchell’s injuries under the operative construction doctrine, which allows judicial deference to an administrative agency’s statutory interpretation when it is supported by a rational basis. Mitchell, 41 Kan. App. 2d at 537-38.
But this ignores this court’s recent decisions recognizing there is little utility for such deference given the long-standing admonition that appellate courts are always free to substitute their judgment for that of the administrative agency when reviewing a question of law. Ft. Hays St. Univ., 290 Kan. at 457 (“In this matter, an appellate court exercises unlimited review on the determinative question of statutory interpretation without deference to [the agency’s] view as to its own authority.”); Higgins, 288 Kan. at 361 (“No significant deference is due [an administrative law judge’s] or the [Workers Compensation] Board’s interpretation or construction of a statute.”). Indeed, when an agency applies the same statute in conflicting ways, as the Board has on this question, any judicial deference is stymied. Redd, 291 Kan. at 188. Therefore, the Mitchell panel’s rationale is not compelling.
Travelers presents a better argument in its brief by contending that the number of weeks contained on the schedule compensates the injured worker for the complete loss of the body member. For example, when a claimant suffers an amputation at the level of the shoulder, the 225 weeks on the schedule necessarily includes the loss of the entire arm. Since the number of weeks for the complete loss is simply reduced by the percentage of loss in partial loss cases, Travelers argues the number of weeks assigned to the highest level must include the lower parts of the member. But this argument also fails because it is contrary to the plain language of the statute and reads a rule into the schedule that does not exist.
We find the Act requires that an injured worker is entitled to an award at each separate level for multiple injuries to the same extremity corresponding to the statutory schedule set out in K.S.A. 44-510d. Redd, 291 Kan. 176, Syl. ¶ 5. We reverse the Board’s and the Court of Appeals’ determinations combining the multiple scheduled injuries/impairments to the same extremity, and this case is remanded to the Board for a recalculation of Mitchell’s award consistent with this opinion.
Issue Two: The Permanent Partial Disability Reduction
Mitchell was awarded 18 weeks of temporary total disability for injuries sustained to his right upper extremity. He also received a permanent partial disability award. Under the K.S.A. 44-510d(a)(13) schedule, an injured worker is typically awarded 225 weeks for the loss of the arm at the shoulder. In calculating Mitchell’s permanent partial disability award, the Board first reduced the 225 weeks assigned under K.S.A. 44-510d(a)(13) by the 18 weeks of temporary total disability. Then, the Board multiplied the re-
duced weekly total by Mitchell’s functional impairment rating. Mitchell argues it was improper to deduct the 18 weeks of temporary total disability.
K.A.R. 51-7-8(b)(l) expressly provides for this deduction. But Mitchell argues a different interpretation to the regulation, citing the preceding section, K.A.R. 51-7-8(a)(l), to contend the regulation was misapplied. K.A.R. 51-7-8 states in relevant part:
“(a)(1) If a worker suffers a loss to a member and, in addition, suffers other injuries contributing to the temporary total disability, compensation for the temporary total disability shall not be deductible from the scheduled amount for those weeks of temporary total disability attributable to the other injuries.
“(b) If a healing period of 10% of the schedule or partial schedule is granted, not exceeding 15 weeks, it shall be added to the weeks on the schedule or partial schedule before the following computations are made.
(1) If a loss of use occurs to a scheduled member of the body, compensation shall be computed as follows:
(A) deduct the number of weeks of temporary total compensation from the
schedule;
(B) multiply the difference by the percent of loss or use to the member; and
(C) multiply the result by the applicable weekly temporary total compensation rate.” (Emphasis added.)
Mitchell claims K.A.R. 51-7-8(a)(l) pertains to workers with both scheduled and nonscheduled injuries and that it prohibits the deduction of temporary total disability paid from a claimant’s permanent partial disability award for the scheduled member. We agree the plain language of K.A.R. 51-7-8(a)(l) prohibits the deduction of temporary total disability from the permanent partial disability award — if the temporary total is caused by both a scheduled injury and some other injury. But these are not the facts in this case because all of Mitchell’s injuries are scheduled. Mitchell’s argument misses the relevant point that K.A.R. 51-7-8(b)(l) explicitly provides for the calculation employed in his case when a loss of use occurs to a scheduled member, which is what happened here. We find Mitchell’s argument to be without merit under these facts.
In the alternative, Mitchell argues K.A.R. 51-7-8 is void because allowing the deduction for temporary total disability paid contra- diets K.S.A. 44-510c and K.S.A. 44-510d. The Mitchell panel upheld the Board’s calculation, finding K.A.R. 51-7-8 was a valid regulation and the deduction of the temporary total disability weeks approved by previous case law, citing another Court of Appeals decision, Cowan v. Josten's American Yearbook Co., 8 Kan. App. 2d 423, 427, 660 P.2d 78 (1983). Mitchell, 41 Kan. App. 2d at 538-39. We note a second Court of Appeals panel addressed this issue in a later decision and adopted the same conclusion. Barbury v. Duckwall Alco Stores, 42 Kan. App. 2d 693, Syl. ¶ 3, 215 P.3d 643 (2009).
Regulations an administrative agency is authorized to adopt are presumed valid, and the party challenging a regulation bears the burden to establish its invalidity. In re Tax Appeal of City of Wichita, 277 Kan. 487, 495, 86 P.3d 513 (2004). It is undisputed the director of workers compensation is authorized to adopt regulations administering and enforcing the Act. K.S.A. 44-573 and K.S.A. 74-717. The only remaining issue then is whether the regulation is inconsistent with the relevant statutes. Because Mitchell received temporary total disability followed by an award for permanent partial disability, the relevant statues are K.S.A. 44-510c and K.S.A. 44-510d.
K.S.A. 44-510c governs compensation for temporary and permanent total disability. It states a claimant can only receive medical benefits during the first week the claimant is totally disabled, unless the claimant is disabled a minimum of 3 weeks. After the first week, “weekly payments shall be made during such temporary total disability.” K.S.A. 44-510c(b)(l). K.S.A. 44-510c(c) then states that the scheduled injury statute, K.S.A. 44-510d, governs when a permanent total or temporary total disability is followed by a permanent partial disability contained on the schedule.
As discussed above, K.S.A. 44-510d governs compensation to injured workers who are permanently, but not totally, disabled— if their injury appears on the schedule. It begins by restricting an injured worker to medical benefits during the first week of injury. Thereafter, compensation is to be paid according to the schedule, and the award is calculated using the statutorily provided formula. The statute then goes on to state disability is presumed to exist immediately after the injury if permanent disability is awarded and .“compensation is to be paid for not to exceed the number of weeks allowed in the following schedule.” (Emphasis added.) K.S.A. 44-510d(a). K.S.A. 44-510d(b) provides:
“Whenever the employee is entitled to compensation for a specific injury under the foregoing schedule, the same shall be exclusive of all other compensation except the [medical] benefits provided . . ., and no additional compensation shall be allowable or payable for any temporary or permanent, partial or total disability.” (Emphasis added.)
The Barbury panel did a persuasive job of reconciling these statues. It began by noting the injured worker clearly was entitled to temporary total disability under K.S.A. 44-510c, but that the statute directed the Board to K.S.A. 44-510d to calculate the award. The panel continued by explaining that K.S.A. 44-510d indicates the disability exists immediately following the injury. This suggests the number of weeks on the schedule encompasses the entire award for an injury to that scheduled member. Further, the panel reasoned the concluding statement in the statute that compensation is not to exceed the number of weeks on the schedule further emphasizes that the number of weeks contained on the schedule is designed to cover the entire award for an injury to a member, whether it is calculated as a total or a permanent award. 42 Kan. App. 2d at 697.
In Barbury, the injured worker received temporary total disability followed by permanent partial disability to his leg. The panel’s analysis concluded:
“[T]he legislature has set an overall compensation limit for a scheduled injury to the leg of 200 weeks, part of which may have been provided as a temporary-total-disability compensation under K.S.A. 44-510c. Although K.S.A. 44-510c lets the employee receive temporary-total-disability compensation, it defers to K.S.A. 44-510d to determine compensation when a permanent scheduled injury follows a temporary total disability. And K.S.A. 44-510d explicitly provides that the compensation provided there ‘shall be exclusive of all other compensation’ except medical benefits and amputation cases.” 42 Kan. App. 2d at 697.
We find this reasoning logically follows the statutory language. K.A.R. 51-7-8 is in keeping with that reasoning.
But Mitchell poses a final challenge to this view by urging this court to contrast these provisions with K.S.A. 44-510e, which establishes how an unscheduled permanent partial disability award is calculated. That provision requires the deduction of temporary total disability in the following calculation:
“(2) find the number of disability weeks payable by subtracting from 415 weeks the total number of weeks of temporary total disability compensation was paid, excluding the first 15 weeks of temporary total disability compensation that was paid, and multiplying the remainder by the percentage of permanent partial general disability as determined under this subsection [a].” K.S.A. 44-510e(a)(2).
Admittedly, this is a very clear instruction, and the above analysis of K.S.A. 44-5l0c and K.S.A. 44-510d is more difficult. But as the Barbury panel considered, this distinction is not surprising based on the differences in these statutory schemes. 42 Kan. App. 2d at 698. K.S.A. 44-510e provides detailed instructions on how to calculate general body disability awards, i.e., injuries not on the schedule. K.S.A. 44-510c and K.S.A. 44-510d do not. Without doubt, the legislature could have made the instructions for calculating a scheduled injury more explicit, but that does not alter the analysis suggesting the legislature intended deducting temporary total disability awards. As such, K.A.R. 51-7-8 does not violate the statutes.
The Board did not err by reducing the number of weeks assigned for Mitchell’s permanent partial disability award by the number of weeks of temporary total disability awarded.
Issue Three: Joint and Several Liability
As discussed above, the Board found that both the overcompensation for the initial injury and the sustained repetitive work over a longer period of time after that injury combined to cause Mitchell’s left and right extremity impairments. It assigned Mitchell’s last day worked as the date of accident under the Act. But Travelers argues the secondary injury rule applies, which would make the date of accident under tire statute December 31, 2003 — the date Mitchell suffered the initial thumb injury. The issue underlying this argument is which insurance carrier is hable. Travelers believes that if the secondary injury rule applies the date of accident is within Royal’s coverage period. We first consider whether the secondary injury rule applies.
Travelers argues the subsequent bilateral shoulder, carpal tunnel, and right elbow injuries flowed as a direct and natural result from the original thumb injury. Citing Dr. Do’s testimony, Travelers claims the facts show the residual effect from the initial left thumb injury led to the right upper extremity injury, which in turn led to the left upper extremity injury. Travelers argues the secondary injury rule applies because the subsequent injuries were the natural and probable consequence of the left thumb break, so the date of injury for all impairments was the date the left thumb broke.
Royal argues the subsequent injuries were new and distinct. Royal notes Mitchell began developing bilateral hand numbness 7 months after the break, even though Travelers claims Mitchell was overusing the right extremity as a result of trying to protect his initial thumb injury. Royal finds support for these arguments in the testimony of Mitchell and Dr. Murati. Royal further notes Mitchell was released to return to work with no cast and no restrictions on April 15, 2005, which was 2 months before Mitchell first noticed right extremity problems.
In dealing with Travelers’ arguments, the Mitchell panel held the secondary injury rule did not apply because there was sufficient evidence supporting the Roard’s decision that a combination of the thumb injury and Mitchell’s subsequent work activities caused his injuries. Therefore, the panel concluded the Roard did not err in determining the dates of accident for each of Mitchell’s repetitive trauma injuries were separate and distinct from the date of accident for his initial thumb injury. 41 Kan. App. 2d at 533.
As to the evidence regarding the cause of Mitchell’s subsequent injuries, the panel found Travelers mistaken in its arguments that the evidence was undisputed. The panel noted Dr. Do’s testimony, which Travelers relies upon, was arguably inconsistent and contradicted by other medical testimony that concluded Mitchell’s subsequent injuries resulted from both the left thumb break and repetitive mini traumas each day he engaged in work activities. See 41 Kan. App. 2d at 531-33. The panel concluded:
“[Cjontrary to Travelers’ suggestion, the Board did not ignore evidence establishing that Mitchell’s repetitive trauma injuries were the natural and probable consequence of the initial thumb injury. Instead, the Board found that repetitive work and overcompensation contributed equally to cause Mitchell’s injuries’’ (Emphasis added.) 41 Kan. App. 2d at 533.
We apply the standard of review applicable at the time of the agency action under review. K.S.A. 77-621(a)(2); see K.S.A. 2009 Supp. 77-621(a)(2); Redd, 291 Kan. 176, Syl. ¶ 1. At the time at issue in this appeal, K.S.A. 77-621(c)(7) required review of the agency’s factual determinations for evidence “that is substantial when viewed in light of the record as a whole.” Caselaw defines substantial evidence as evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper, furnishing a basis to act from which the issue raised could be easily resolved. Graham v. Dokter Trucking Group, 284 Kan. 547, 553-54, 161 P.3d 695 (2007). Under this analysis, the Board’s decision should be upheld if supported by substantial evidence, even though there is other evidence in the record supporting contrary findings. 284 Kan. at 554.
We agree with the Court of Appeals panel and hold tire Board’s findings are supported by substantial competent evidence in light of the record as a whole. As correctly noted by the panel, Dr. Do’s opinion was conditioned on factors that both Mitchell and other medical experts disputed. The Board made a factual determination based upon that disputed testimony, which we will not disturb on appeal based on this record. The evidence supports a finding that Mitchell’s subsequent bilateral shoulder, carpal tunnel, and right elbow injuries were the combined result of both repetitive work and overcompensation use from the initial thumb injury. Now we must determine the date of accident under the statutory scheme.
K.S.A. 2009 Supp. 44-508(d), which was amended effective July 1, 2005 (L. 2005, ch. 55, sec. 1), and was thus applicable prior to Mitchell’s last day worked, establishes the date of accident for work-related injuries caused by a series of events, repetitive use, cumulative traumas, or microtraumas. It states:
“[T]he date of accident shall be the date the authorized physician takes the employee off work due to the condition or restricts the employee from performing the work which is the cause of the condition. In the event the worker is not taken off work or restricted as above described, then the date of injury shall be the earliest of the following dates: (1) The date upon which the employee gives written notice to the employer of the injury; or (2) the date the condition is diagnosed as work related, provided such fact is communicated in writing to the injured worker. In cases where none of the above criteria are met, then the date of accident shall be determined by the administrative law judge based on all the evidence and circumstances; and in no event shall the date of accident be the date of, or the day before the regular hearing.”
Kansas appellate courts have set as a bright-line rule that in repetitive microtrauma situations like carpal tunnel syndrome, the date of injury is the last day worked. See Kimbrough v. University of Kansas Med. Center, 276 Kan. 853, 855-57, 79 P.3d 1289 (2003). The Board’s decision to set the date of accident for Mitchell’s repetitive trauma injuries as his last day worked is in agreement with the statute and our case law. We hold the Board correctly recognized the date of accident for Mitchell’s subsequent injuries (other than the initial left thumb) as July 15, 2005, i.e., Mitchell’s last day of work for Petsmart. Given this particular factual scenario, we next consider the Board’s decision to impose joint and several liability.
Royal argues its coverage ended on January 31, 2004. It claims it would be unfair to impose joint and several liability when Royal no longer had a contractual obligation to provide coverage, especially since Mitchell’s wage had increased and any benefits awarded would be higher than anticipated by the premium collected from Petsmart. Royal also argues joint and several liability cannot be imposed because the Kansas Workers Compensation Act does not provide for it. The Board found the injuries to Mitchell’s left thumb and the repetitive activities he engaged in for his work combined to cause Mitchell’s subsequent bilateral shoulder, carpal tunnel, and right elbow injuries.
The Mitchell panel treated Travelers’ and Royal’s challenges to joint and several liability as separate issues for each insurer. It refused to address Royal’s argument that Travelers was solely responsible because Royal failed to file a cross-appeal, depriving the panel of jurisdiction to consider this argument under K.S.A. 60-2103(h) (appellee must file notice of cross-appeal from adverse rulings in order to obtain appellate review of those issues). 41 Kan. App. 2d at 528. We note Royal also did not seek this court's review of the panel’s jurisdictional determination. Therefore, we have no jurisdiction to hear any challenge to the joint and several liability order as it relates to Royal’s arguments because it failed to appeal from the Board’s ruling.
Turning to Travelers’ argument, the insurance carrier predicates its entire attack against the Board’s joint and several liability holding on the basis of its factual dispute with the Board’s decision that Mitchell’s subsequent injuries resulted from both the initial thumb injury and regular job activities. But we have upheld the Board’s factual determinations, so Travelers’ premise fails at its starting point. The argument is without merit.
Finally, we agree generally with the notion expressed by the ALJ and in the case law that insurance carriers should not litigate disputes about their respective liabilities for the compensation awarded to an injured worker in the compensation proceedings. Instead, these matters should be decided in separate proceedings between the carriers brought for such purposes and outside the Board’s jurisdiction. See Kuhn v. Grant County, 201 Kan. 163, Syl. ¶¶ 3-5, 439 P.2d 155 (1968) (discussing the hardship that may confront a claimant when insurance carriers litigate claims and equities existing between themselves during the injured worker’s compensation process); Hobelman v. Krebs Construction Co., 188 Kan. 825, 830-33, 366 P.2d 270 (1961) (where employee of two employers is injured, degrees of liability between employers and their carriers are not to be decided in workers compensation proceedings); Tull v. Atchison Leather Products Co., 37 Kan. App. 2d 87, 93-94, 150 P.3d 316 (2007) (not an erroneous application of law when an ALJ or the Board embraces the general rule stated in Kuhn).
We affirm the Board’s judgment assigning joint and several liability to Royal and Travelers.
Conclusion
We reverse the Board and the Court of Appeals in their determinations that Mitchell’s multiple injuries should be combined at the highest level of the scheduled injury. Instead, the Board is required to calculate Mitchell’s permanent partial disability as separate injuries under the schedule set out in K.S.A. 44-510d, as more fully explained in this opinion and Redd v. Kansas Truck Center, 291 Kan. 176, 239 P.3d 66 (2010). We remand the case for the purpose of making that recalculation consistent with this ruling.
We affirm the Board’s deduction of the weeks of Mitchell’s temporary total disabilities benefits from the permanent partial disability award.
We affirm the Board’s factual findings that Mitchell’s subsequent repetitive trauma injuries resulted from the combination of his work activities and his initial thumb injury. We also affirm the Board’s decision to assign joint and several liability to both Royal and Travelers for Mitchell’s subsequent bilateral shoulder, carpal tunnel, and right elbow injuries.
Affirmed in part, reversed in part, and remanded with directions.
Davis, C.J., not participating. | [
-112,
120,
-36,
-99,
8,
99,
58,
-102,
48,
-122,
37,
89,
-25,
-17,
-115,
107,
-9,
45,
-15,
107,
-42,
-77,
19,
-54,
-62,
-77,
-71,
69,
-71,
106,
100,
92,
76,
48,
10,
-43,
102,
-128,
69,
28,
-56,
4,
-71,
-24,
-39,
2,
56,
-17,
12,
75,
49,
-99,
-6,
40,
24,
67,
44,
42,
123,
111,
-48,
-23,
-117,
13,
109,
17,
-93,
4,
-100,
103,
-8,
30,
-102,
-72,
64,
-24,
80,
-74,
-58,
52,
99,
-103,
4,
103,
99,
32,
21,
-123,
-4,
-72,
63,
87,
-97,
-124,
-109,
24,
59,
7,
-108,
-67,
126,
22,
6,
92,
-9,
29,
15,
108,
6,
-122,
-70,
-109,
-49,
100,
30,
-125,
-1,
7,
-78,
37,
-34,
-30,
92,
5,
123,
31,
-5,
-102
] |
The opinion of the court was delivered by
Beier, J.:
This is an appeal taken by the State from the departure sentence given defendant Harold Dean Spencer by District Court Judge Matthew J. Dowd. Spencer pleaded guilty to two counts of aggravated indecent liberties with a child, both off-grid felonies punishable under Jessica’s Law. One of the victims was his 6-year-old great-granddaughter; the other was a granddaughter of similar age who was living with Spencer and his wife at the time the crimes came to light.
The potential issues before us are:
1. Whether the sentencing judge properly relied on the same findings to support both a departure from the mandatory hard 25 sentence under Jessica’s Law, K.S.A. 21-4643(d), to a sentence under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., and a dispositional departure from a KSGA prison term under K.S.A. 21-4716(a) to probation.
2. Whether the reasons articulated by the sentencing judge for departure from the mandatory minimum of Jessica’s Law were substantial and compelling.
3. Whether the reasons articulated by the sentencing judge for the dispositional departure were substantial and compelling.
4. Whether the sentencing judge abused his discretion in the extent of departure granted.
5. In the event the defendant’s sentences must be vacated because either or both departures were inappropriate, whether a new sentencing judge is permitted on remand to re-evaluate his or her reasons and re-grant or deny either or both departures and to consider a durational departure.
6. Whether, on a State appeal of a departure sentence for aggravated indecent liberties, this court has authority to entertain a defense challenge to the offense severity level used by the sentencing judge, and, if so, the correct method and result for a departure from Jessica’s Law to a sentence “pursuant to the sentencing guidelines act.”
Factual and Procedural Background
Spencer was charged with one count of aggravated indecent liberties in violation of K.S.A. 21-3504(a)(3)(A), perpetrated on a great-granddaughter, and one count of rape in violation of K.S.A. 21-3502(a(2), perpetrated on a granddaughter. On arrest, Spencer confessed to fondling the girls but not to rape. In exchange for his guilty pleas to two counts of aggravated indecent liberties, the State agreed to stand silent at sentencing.
Spencer moved for departure, arguing in his written motion that his waiver of preliminary hearing and juiy trial had spared the victims emotional harm and that he had accepted responsibility and expressed remorse. He also argued that his lack of prior criminal activity and age of 76 justified departure. His counsel also wrote that Spencer had “been law-abiding and gainfully employed his entire life,” that he had “raised several children and grandchil dren,” that he was “the primary care-giver for his sick and ailing wife,” that he had “strong support from his family and others in the community,” and that the “victim’s mother favors probation.”
At the sentencing hearing, several members of Spencer’s family spoke of his vital role among their kin and his caretaldng of his wife, as well as previous acts of kindness and generosity. It appears from the record that certain other members of the family may have disagreed, as there were references to the crimes tearing the family apart. A minister also spoke on Spencer’s behalf. Judge Dowd also had access to victim impact statements, one written by the mother of the great-granddaughter, who opposed Spencer’s imprisonment, and one composed by the granddaughter, who indicated that Spencer should go to jail. Judge Dowd also noted numerous letters written by “friends and family of the defendant indicating that he is a good citizen, a good person, and a suitable candidate for some sort of leniency.” When Judge Dowd asked Spencer if he had anything to say, Spencer said only, “I just wish I could undo it.”
After airing of a disagreement between the parties about the point on the sentencing guidelines to which a district judge departing from a hard 25 under Jessica’s Law should go — with the State arguing for an offense severity level 1 and the defense arguing for an offense severity level 3 — Judge Dowd ruled:
“Certainly, this is always a serious situation, a serious crime. I am very aware of the impact it’s had on the defendant’s family, on his friends, and on the community. There’s a kind of a mixed input in regard to the harm that was done to these young ladies. It does not appear that the harm was terribly significant. The mom of the children herself says that they have dealt with this fairly well. And so I think the victim, the victim impact is not as serious as it would be in an ordinary case of this nature.”
At this point, counsel for the State corrected the judge, saying that there were different mothers of the two victims involved in the case. Judge Dowd acknowledged this fact. He then continued:
“In any event, I think what I’ve heard here today would seem to indicate that a departure is necessary, appropriate, and there are substantial and compelling reasons to depart. I think the age of the defendant, his prior record, and his support from his family and friends would lead the Court to believe that this might have been an aberration or a momentary lapse in an otherwise good fife, so I am going to depart.
“I am going to adopt — since I’m going to also depart durationally, I think it’s really not terribly significant how many years or months we give, because I am going to depart dispositionally. But I will adopt the State’s theory and go from fife imprisonment to a number of years — or pardon me, a number of months as indicated on the guideline grid for the severity level 1. So I’m going to impose a 155-month sentence to the Secretary of Corrections. The defendant’s criminal history is “I” and that’s the low range on the severity level number 1,155 months.
“I’m also going to depart dispositionally. I think that it would not, it would not serve the end of justice to incarcerate the defendant. I think that a significant amount of time in prison would be tantamount to a life sentence for this man in light of his age, and age is fisted as one of the reasons to depart. Usually we think of that as a young person not really aware of his responsibilities, but I think it also can be interpreted as age in the sense of an elder person.
“In any event, I’m going to impose the 155 months, 36 months of post-release supervision and 36 months supervised probation ....
“. . . And also, we should impose the same sentence on Count 2. And they will run concurrent. That will be the order of the Court.”
A month after the sentencing hearing and the State’s filing of its notice of appeal, when the parties could not agree on the appropriate content of the journal entry, the defendant filed a written objection. The objection sought to have the Usted reasons for departure expanded from the three enumerated in the State’s proposed journal entry — the age of the defendant, the lack of a criminal record, and family support — to ten — (1) the age of the defendant; (2) the defendant’s health; (3) “Defendant is the primary caretaker for his extremely ill wife”; (4) lack of prior record; (5) support of family and friends; (6) expression of remorse and claim of responsibility; (7) “Victim, through mother, asked the Court to grant probation”; (8) “Degree of harm associated with this particular crime was significantly less than is typical for such offense”; (9) “Defendant did not exercise any confrontational rights by way of preliminary hearing or trial and plead [sic] guilty”; and (10) “State stood silent thereby offering no opinion as to sentencing.”
The State responded in writing to the defense objection, arguing that the court’s minutes for the sentencing hearing specifically referenced only three departure factors. The minutes are not in the record on appeal. The State also quoted a portion of the judge’s remarks at sentencing, specifically: “ ‘[Tjhere are substantial and compelling reasons to depart. I think the age of the defendant, his prior record, and his support from his family and friends would lead the Court to believe that this might have been an aberration or a momentary lapse in an otherwise good life, so I am going to depart.’ ” The State continued: “While Defendant may desire to have the addition of seven more departure factors, such were clearly not relied upon by the Court as evinced by the record and the minutes.”
Approximately a month after the State filed its response, Judge Dowd held a hearing to settle the journal entry. He opened the hearing by stating:
“The issue before the Court is the journal entry and . . . the defense perceived as the Court did that the journal entry submitted by the State was rather summary.
“I would concede at the outset that the quotation of the State in regard to the factors listed for departure is accurate. The statutory factors were what the State listed and the only issue is whether or not those factors should be expanded, listing several other facts that c[a]me to the attention of the defense as well as the Court.
“So I’m seriously considering granting that motion.”
Judge Dowd then asked for the State’s comments. The prosecutor argued that the sentence was final at the time of pronouncement and that the portion of the transcript quoted in the State’s response to the defense objection was accurate. He also corrected the judge, pointing out that the age of the defendant and his prior record were statutory departure factors under Jessica’s Law, while the appropriateness of family support as a mitigator could only be based on case law. The prosecutor concluded:
“So I think it would be fair to say that the Court was not just listing the statutory factors but was listing the combination of statutory as well as case law basis.
“What we’re left with in the record is what it is and the journal entry reflects the record as well as the minutes. I think it would be inappropriate or imprudent at this point in time for the Court to add bas[e]s for departure, essentially to enlarge the record.
“It would be the State’s position that doing so would ultimately be a — may, in fact, result in an illegal sentence and I don’t think is — there's a basis — the ability— the authority for the Court to do so under law.”
Defense counsel agreed that no expansion of the record was appropriate after the sentencing hearing but argued that the judge had already considered the additional factors sought to be listed in the journal entry. Judge Dowd ruled in favor of the defense, saying:
“Well, I think it’s within the Court’s discretion to supplement the record. In my judgment and my recollection, these factors . . . brought to our attention currently here were part of the motion to depart. They were a significant part of the evidence and I think more importantly they were a very significant factor and had a very significant impact on me as far as making the decision that I made.
“So I think in the interest of a clearer and comprehensive record, that those factors should be added to tire record and I will do so over the objection of the State.
“I will sign the journal entry submitted by [the State] and I will also sign the order submitted by the defense adding those factors and make a specific finding that those were a part of the motion, a part of the evidence and a part of the Court’s ruling and a part of the Court’s decision to depart.”
Despite Judge Dowd’s last statement, the written court order regarding the journal entry, filed the same day as the hearing on the objection, read in pertinent part:
“[T]he Court is not willing to sign the journal entry as proposed by the State. The Court would find that the following additional factors were considered by the Court in determining a departure was warranted: the degree of harm was significantly less than is typical as was evidenced by the mother of [A.S.], who requested leniency; the age, health and lack of prior record of the defendant; the support of family and friends; the fact that the defendant was and is the primary caretaker of his critically ill wife; and the fact that the defendant expressed remorse and claimed responsibility by not exercising Iris confrontational rights.
“In light of the Court’s clarification of reasons for departure, the State is hereby ordered to prepare a journal entry reflecting the above findings.”
No journal entry other than that originally proposed by the State appears in the record on appeal. It is signed by Judge Dowd, apparently on the same day as the hearing.
Since the State took its appeal, it has added to the record on appeal the victim impact statements and letters Judge Dowd evidently considered at sentencing. There are actually three victim impact statements: one written by the mother of the great-granddaughter, which denied any lingering effects on the great-granddaughter; one by the granddaughter, composed on a form designed for children, in which she described experiencing continuing ill effects and favored sending Spencer to prison; and one written by the granddaughter’s father, who asked that Spencer be given pro bation. The letters to which Judge Dowd made reference during the sentencing hearing are from family members and one ex-family member; most question Spencer’s guilt rather than address appropriate sentence; many emphasize that he is the only family member available to care for his seriously ill wife.
Analysis
Sameness of Findings Supporting Departures
Under the version of Jessica’s Law in effect at the time of the 2007 crimes at issue here, a defendant who is 18 years old or older at the time he or she commits aggravated indecent liberties on a child younger than 14 ordinarily is subject to a Jessica’s Law hard 25 sentence for a first offense. K.S.A. 21-4643(a)(l)(C). A sentencing judge may depart from that “mandatory minimum term of imprisonment” if the judge “finds substantial and compelling reasons, following a review of mitigating circumstances.” K.S.A. 21-4643(d). The judge
“shall state on the record at the time of sentencing the substantial and compelling reasons for the departure. The departure sentence shall be the sentence pursuant to the sentencing guidelines act, K.S.A. 21-4701 et seq. . . . , and no sentence of a mandatory minimum term of imprisonment shall be imposed hereunder. [A]s used in [K.S.A. 21-4643(d)], mitigating circumstances shall include, but are not limited to, the following:
(1) The defendant has no significant history of prior criminal activity.
(2) The crime was committed while the defendant was under the influence of extreme mental or emotional disturbances.
(3) The victim was an accomplice in the crime committed by another person, and the defendant’s participation was relatively minor.
(4) 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 the requirements of law was substantially impaired.
(6) The age of the defendant at the time of the crime.” K.S.A. 21-4643(d).
Once a “sentence becomes a guidelines sentence, the district court is free to depart from the sentencing grid if it states on the record findings of fact and reasons justifying a departure that are supported by evidence in the record and are substantial and compelling.” State v. Gracey, 288 Kan. 252, 259, 200 P.3d 1275 (2009). K.S.A. 21-4716(a) provides that a sentencing judge shall impose the presumptive sentence under the sentencing guidelines “unless the judge finds substantial and compelling reasons to impose a departure”; if the judge chooses to depart, he or she “shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.” The nonexclusive list of statutory mitigating factors includes “[t]he degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense.” K.S.A. 21-4716(c)(l)(E). The factors explicitly listed do not include the age of the defendant, his or her lack of a significant criminal history, or family support. K.S.A. 21-4716(c)(l)(A)-(E).
The State argues that Judge Dowd erred by using the same mitigating circumstances to justify both the departure from the Jessica’s Law hard 25 to the sentencing guidelines and the dispositional departure from what the judge believed to be the guidelines’ presumptive prison sentence of 155 months to 36 months’ probation. This issue was specifically left open in the Gracey opinion, decided under the same version of Jessica’s Law applicable in this case. See Gracey, 288 Kan. at 261. This argument was not made to Judge Dowd here, and the State’s choice to raise the argument on this appeal might be viewed as a violation of its agreement to stand silent at sentencing. However, Spencer does not raise these objections. We therefore will address the merits of the State’s argument.
The State initially acknowledges that the applicable standard of review is that for statutoiy interpretation, which is de novo. See State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008). But it then proceeds to argue that one reason a sentencing judge should be required to differentiate between the mitigators justifying a departure from Jessica’s Law and those justifying a dispositional departure from the default guidelines sentence is that the standard of review applied to one is different from that applied to the other. Citing State v. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 5, 194 P.3d 1195 (2008) (Jessica’s Law), and State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008) (guidelines sentence), the State asserts that an appellate court evaluates a district court decision on whether mitigators constitute substantial and compelling reasons for departure from Jessica’s Law under an abuse of discretion standard. In contrast, it argues, appellate review of a sentencing judge’s performance under K.S.A. 21-4716 requires it to first examine the record to discern whether substantial competent evidence supports the articulated reasons for the departure. If that hurdle is cleared, it says, the appellate court then determines, as a matter of law, whether the reasons are substantial and compelling. See K.S.A. 21-4721(d)(1), (2).
In Ortega-Cadelan, the defendant challenged the sentencing judge’s denial of a motion to depart from a Jessica’s Law hard 25 for a rape of a child. Justice Luckert, writing for a unanimous court, rejected a defense argument that each of the mitigators listed in Jessica’s Law constituted a per se substantial and compelling reason for a departure, likening the procedure to
“that mandated by K.S.A. 21-4716( c)(l), the general departure provision in the [sentencing guidelines] ....
“[U]nder both the [sentencing guidelines] provision and [Jessica’s Law], the district court must consider whether a mitigating circumstance is a substantial and compelling reason for departure under the facts of the case. There is no formula for this determination, and the list of nonexclusive mitigating circumstances merely serves as a guide for analysis.’’ Ortega-Cadelan, 287 Kan. at 165.
The sentencing judge’s determination that the mitigating circumstances in a particular case constitute substantial and compelling reasons to depart was then evaluated under an abuse of discretion standard. Ortega-Cadelan, 287 Kan. at 165-66. It is worthwhile to note that the Gracey opinion followed Ortega-Cadelan in stating that a decision to depart is within the discretion of the sentencing court. Gracey, 288 Kan. at 260; see State v. Thomas, 288 Kan. 157, 164, 199 P.3d 1265 (2009). Many others among our now-numerous Jessica’s Law cases have done likewise. See State v. Plotner, 290 Kan. 774, 780-81, 235 P.3d 417 (2010); State v. Reyna, 290 Kan. 666, 689-90, 234 P.3d 761 (2010); State v. Trevino, 290 Kan. 317, 322-23, 227 P.3d 951 (2010); State v. Marler, 290 Kan. 119, 127, 223 P.3d 804 (2010); State v. Robison, 290 Kan. 51, 56-57, 222 P.3d 500 (2010); State v. Mondragon, 289 Kan. 1158, 1162, 220 P.3d 369 (2009); State v. Ballard, 289 Kan. 1000, 1009-10, 218 P.3d 432 (2009); State v. Seward, 289 Kan. 715, 721- 22, 217 P.3d 443 (2009); State v. Spotts, 288 Kan. 650, 654-56, 206 P.3d 510 (2009); State v. Gilliland, 2010 WL 1379182, at *3, unpublished opinion filed April 2,2010. Further, we have specifically held that the exercise of discretion by a sentencing judge deciding a departure motion does not violate a defendant’s right to procedural due process. See State v. Garza, 290 Kan. 1021, 1035, 236 P.3d 501 (2010).
Justice Luckert also wrote the second decision cited by the State on this issue, State v. Blackmon, 285 Kan. 719, a non-Jessica’s Law case. Blackmon also differed fundamentally from Ortega-Cadelan, because the issue the court examined was not whether the record supported the existence of a departure factor or whether, on the facts of the case, any cited factor qualified as substantial and compelling. Rather, the issue was whether, as a matter of law, a sentencing judge could ever rely on his or her disagreement with a jury’s verdict on the level of recklessness involved in a crime to support a downward departure under K.S.A. 21-4716. The answer was no. See Blackmon, 285 Kan. at 728 (sentencing judge cannot be permitted to become “super juror”); see also State v. Martin, 279 Kan. 623, 627-28, 112 P.3d 192 (2005) (issue whether defendant’s status as ringleader could ever support upward departure reviewed as a question of law; statutory interpretation required). Gracey echoed Blackmon, although it did not cite to it, relying on the de novo standard applicable to statutory construction questions to decide whether a dispositional departure was ever authorized after a departure from Jessica’s Law. See Gracey, 288 Kan. at 257 (citing State v. Ruiz-Reyes, 285 Kan. 650, 653, 175 P.3d 849 [2008]).
Another recent non-Jessica’s Law case that bears revisiting on the nature of our standard of review is State v. Martin, 285 Kan. 735, 175 P.3d 832 (2008), which was written by now Chief Justice Nuss and filed 9 months before Ortega-Cadelan. It involved an upward dispositional departure from presumptive probation; the Court of Appeals had held that the factors on which the sentencing judge relied were not valid departure factors. On the State’s petition for review, we upheld the departure sentence, ruling that the defendant mother violated a special fiduciary relationship and her unique position of trust when she handed her 16-year-old son a gun and exhorted him to shoot into an occupied house. Martin, 285 Kan. at 742-43, 745-46. Chief Justice Nuss wrote:
“There is no dispute in the instant case about whether the evidence in the record supports the reasons given by the sentencing court for the departure. Rather, the dispute is whether these reasons are substantial and compelling for departure. Analysis of the present dispute consists of two parts: First, are the reasons given by the sentencing court valid departure factors and, second, ‘are the reasons, as a whole, substantial and compelling reasons for departure in a given case?’ State v. McKay, 271 Kan. 725, 729, 26 P.3d 58 (2001). This determination is a matter of law which we review de novo. 271 Kan. at 728.” Martin, 285 Kan. at 739.
In State v. Favela, 259 Kan. 215, 911 P.2d 792 (1996), we also dealt with the appropriate standard of review on the extent of non-Jessica’s Law durational sentencing departures. Such a question is subject to an abuse of discretion standard, which is defined as consistent with the “ ‘enacted purposes and principles of [the] sentencing guidelines’ ” and “ ‘proportionate to the severity of the crime of conviction and the offender’s criminal history.’ ” Favela, 259 Kan. at 219 (quoting K.S.A. 1994 Supp. 21-4719[b][l]).
In short, as sometimes happens, this case exposes some “failure to communicate” in our previous general statements of the standards of review governing Jessica’s Law and non-Jessica’s Law sentencing departure cases. It appears, however, that the following synthesis is workable and true to the majority of our relevant precedent: (1) When the question is whether the record supported a sentencing judge’s particular articulated reasons for departure, an appellate court’s standard of review is substantial competent evidence; (2) when the question is whether a sentencing judge correctly concluded that particular mitigating factors constituted substantial and compelling reasons to depart in a particular case, including whether those mitigating factors outweighed any aggravating factors if such a balance was necessary, the appellate standard of review is abuse of discretion; (3) when the question is whether a particular mitigating or aggravating factor can ever, as a matter of law, be substantial and compelling in any case, the appellate standard of review is de novo; and (4) when the challenge focuses on the extent of a durational departure, the appellate standard of review is abuse of discretion, measuring whether the departure is consistent with the purposes of the guidelines and proportionate to the crime severity and the defendant’s criminal history.
Given this synthesis, the State’s argument that varying standards of review command differentiation in the mitigating factors supporting a departure from Jessica’s Law and those supporting a dis-positional departure from the default guidelines prison sentence dissolves.
The State also argues that both the character of the mitigators listed in Jessica’s Law and the structure it imposes upon a judge’s procedure support its view that Judge Dowd erred when he failed to distinguish two sets of mitigating factors.
Regarding the character of the Jessica’s Law mitigators, the State relies on the noscitur a sociis canon of statutory construction. Literally “it is known from its associates,” the canon requires a court to conduct a comparison of the elements of a list to determine meaning of any one item. The State posits that each of the statutory mitigators in Jessica’s Law focuses on the culpability of the particular defendant, rather than a broader class of concepts relevant to a reduced need for punishment. Read in this light, the Jessica’s Law mitigators are not equivalent and interchangeable with the mitigators listed or not listed in K.S.A. 21-4716(c)(l).
Regarding structure, the State sees significance in the requirement under Jessica’s Law that a sentencing judge evaluate only mitigators before departing. It points out that K.S.A. 21-4716, again, is broader in scope, permitting a sentencing judge to evaluate both mitigators and aggravators before a decision to depart. The State also cites the requirement of a balance of aggravators and mitigators by a jury considering the death penalty and a judge considering imposition of a hard 40 or 50 life sentence, see K.S.A. 21-4624(e) (death penalty); K.S.A. 21-4635(b) - (d) (hard 40, 50), to demonstrate that the sole focus on mitigators in Jessica’s Law is unique.
These character and structure arguments by the State are unpersuasive.
There is no need to resort to a statutory canon of construction, because the plain language of the statutes tells us what we need to know about the legislature’s intentions. On character, each statute explicitly provides that its list of mitigating factors is nonexclusive. See K.S.A. 21-4643(d); K.S.A. 21-4716(c)(l). This means that the courts are free to develop additional mitigating factors on a case-by-case basis. In addition, not all of the Jessica’s Law factors focus exclusively on a particular defendant’s level of culpability, as the State insists. The third listed factor expressly mentions the role of the victim, as well as the defendant, in the crime. See K.S.A. 21-4643(d)(3). In comparison, the mitigating factors Usted in K.S.A. 21-4716(c)(l)(A) through (D) include factors focused on the level of the defendant’s culpability, e.g., role in the crime, duress, compulsion, physical or mental impairment, as well as other types of factors, e.g., victim’s aggression, lesser degree of harm or loss.
On structure, no balance between mitigators and aggravators such as that implied in K.S.A. 21-4716 or explicitly provided for in K.S.A. 21-4624(e) or K.S.A. 21-4635(b)-(d) is necessaiy when Jessica’s Law is the starting point. The only way for Jessica’s Law to operate is to intensify, if not lengthen, a sentence. It makes 25 years a mandatory minimum, unless certain mitigators justify a departure. Simply put, there is nowhere to go büt to a less-intense place. Under K.S.A. 21-4716, in contrast, departure either upward or downward is possible. Likewise, when a jury is asked to deliberate on a fife sentence versus a death sentence, it is sensible and appropriate for both mitigators and aggravators to play a role in the choice between a show of mercy and the ultimate penalty; neither is the otherwise automatic sentence. The same can be said when a judge weighs mitigators and aggravators to determine whether a hard 40 or 50 sentence should be imposed.
The State’s final argument in favor of requiring a sentencing judge to distinguish between the mitigators that justify a departure from Jessica’s Law and then a dispositional departure from the default guidelines prison sentence is an analogy to K.S.A. 21-4719(c)(2). As Spencer’s brief points out, this citation actually supports defendant’s position more than the State’s. K.S.A. 21-4719(c)(2) deals with the situation in which the sentencing judge imposes a prison term as an upward dispositional departure. It specifically provides that, if the judge chooses to then impose a term longer than that specified in the applicable guidelines grid box, the additional prison time “shall constitute an additional departure and shall require substantial and compelling reasons independent of the reasons given for the dispositional departure.” K.S.A. 21-4719(c)(2). This language demonstrates that die legislature knew exactiy how to provide for the procedure advocated by the State for the stacked intensity-lessening departures at issue here. It could have clearly provided that a sentencing judge must rely on separate mitigators to depart, first, from Jessica’s Law and, second, dispositionally from the default guidelines sentence. It did not.
In view of all of the foregoing, this court endorses the district court’s undifferentiated approach to the two departures in this case. Under the statutes at issue, as a matter of law, Judge Dowd was free to use the same mitigating factors to justify both a departure from the mandatory minimum of Jessica’s Law and a dispositional departure from the default guidelines prison sentence to probation.
Existence of Substantial and Compelling Reasons for Departure from Jessica’s Law
The parties agree that the standard of review governing this issue is abuse of discretion, which is consistent with the synthesis above.
Again, the State did not make this argument before the district court. It had agreed, in exchange for Spencer’s guilty pleas, to stand silent at sentencing. Again, because Spencer has not objected, we address the merits.
The parties first contest a threshold question of law, i.e., the significance, if any, of the seven mitigating circumstances not included in the State’s original proposal for the journal entry. These seven mitigating circumstances were listed in the defense objection to the journal entry, which Judge Dowd attempted to endorse explicitly and add to the record supporting his decision by way of the hearing on the objection and, apparently, his signatures on both an order drafted by the defense and the State’s journal entry. The transcript of sentencing includes the judge’s mention of the three factors originally listed by the State, i.e., Spencer’s age, his lack of a criminal record, and the support of his family and friends, and a factor listed under K.S.A. 21-4716(c)(l)(E), i.e., “[t]he degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense.”
“The court’s comments at the time of sentencing, not the written journal entry, govern as to the reasons for departure.” State v. Murphy, 270 Kan. 804, 806, 19 P.3d 80 (2001) (citing State v. Jackson, 262 Kan. 119, 135, 936 P.2d 761 [1997]). In addition, Jessica’s Law explicitly requires the downward departure factors upon which a judge relies to be articulated by the judge “on the record at the time of sentencing.” K.S.A. 21-4643(d).
The defense cites Blackmon to support Judge Dowd’s ability to supplement the record by way of the hearing to settle the journal entry and his dueling signatures. Blackmon permitted a remand so that a sentencing court could clarify its reasoning, rejected on appeal, to" justify a downward departure. See Blackmon, 285 Kan. at 730-32. The opinion included the following language:
“This analysis raises the question of whether upon remand it is appropriate for the sentencing court to clarify the reasons for departure or whether the initial failure dooms Blackmon’s departure motion. Kansas precedent shows that remand for clarification of departure reasons has been allowed with respect to upward departures.
“. . . We can discern no reason why the same policy would not apply to downward departures. Consequently, when a sentencing court fails to state substantial and compelling reasons for a downward departure from a presumptive sentence on the record at an initial sentencing hearing and as a result the sentence is vacated on appeal, upon remand the sentencing court may cite appropriate reasons justifying the imposition of a downward departure sentence and may impose such a sentence subject to the usual review process.
“In the case at hand, the limited record available on appeal indicates the sentencing court may have had additional reasons for departure but did not clearly state those reasons on tire record at the sentencing hearing. Consequently, rather than reverse the sentence as did the Court of Appeals panel, the appropriate remedy is to vacate the sentence. On remand, if the sentencing court determines there are reasons for departure other than the court’s disagreement with the jury’s determination that the State established an element of the crime of conviction, the sentencing court may impose a departure sentence, which then would be subject to appeal under K.S.A. 21-4721.” Blackmon, 285 Kan. at 730-32.
In short, this court must decide whether Spencer could receive the essence of the same benefit bestowed on the defendant in Blackmon — a second bite at the departure justification apple.
On the surface, it seems at least as fair here, from a procedural perspective, to allow some post-sentencing supplementation of Judge Dowd’s reasoning, because Spencer lodged an objection in the district court to what he viewed as omissions from the State’s proposed journal entry. This was the case, even though he had received everything he could have hoped for in terms of leniency.
But a close review of the timing of events reveals that Spencer’s objection probably was not merely an altruistic move to complete the court’s file. The sentencing was held on June 27,2008, and the State filed its notice of appeal of the departure sentence immediately. It served its proposed journal entry a few days later, and Spencer did not file his objection until July 29, 2008. The hearing to settle the journal entry was held September 10, 2008, and the order filed the same day. The original proposed journal entry also was signed by the judge on September 10 and filed on September 12, 2008. The State filed a motion to docket its appeal out of time on September 15, 2008, and the motion was granted and the docketing statement filed on September 29, 2008, finally depriving the district court of jurisdiction. In other words, long before Spencer filed his objection with his list of not 3 or 4 but 10 substantial reasons the judge (mostly silently) harbored for granting the two departures, Spencer knew that those reasons would be scrutinized by the Court of Appeals or by this court. For that matter, it is highly likely Judge Dowd also was aware of the filing of the State’s appeal.
We hold that the aspect of the Blackmon ruling on which Spencer now seeks to rely should be limited to like situations, i.e., those in which a Jessica’s Law sentence has been vacated by an appellate court and the case remanded for resentencing. See Blackmon, 285 Kan. at 730-32. Blackmon was not a case in which the content of the record may have been manipulated. It also cannot excuse the express Jessica’s Law requirement that departure factors be stated by the judge on the record at sentencing. We therefore limit our evaluation at this time of whether the mitigators cited in arriving at Spencer s departure from Jessica’s Law are substantial and compelling to the four factors Judge Dowd originally referenced at sentencing.
Under the standard of review synthesis outlined above, we review these mitigating factors to determine whether Judge Dowd abused his discretion in deciding that they constituted substantial and compelling reasons to depart from Jessica’s Law. The State does not question whether the record on appeal contains substantial competent evidence to support these mitigators.
Age of defendant. The State makes a compelling argument that Judge Dowd’s reference to Spencer’s age of 76 had nothing to do with Spencer’s judgment or lack thereof at the time of the crimes, which is the traditional significance of an age mitigator. See Murphy, 270 Kan. at 807; Favela, 259 Kan. at 235. The statute expressly states that it is the age of the defendant at the time of the crime that matters. See K.S.A. 21-4643(d)(6). But Judge Dowd appears to have considered Spencer’s age as significant only because of the likelihood that a Jessica’s Law hard 25 would actually mean fife behind bars. In essence, the State argues that the length of a sentence in relation to the defendant’s probable lifespan cannot be a substantial and compelling reason for departure in this case. The defense offers little in the way of counterargument, pointing out only that the age of the defendant is a listed mitigator in the statute.
We hold that the State is correct on this mitigator. No reasonable person would rely on the age of the defendant in the way Judge Dowd did as a substantial and compelling reason to grant a departure from Jessica’s Law in this case.
Lack of criminal record. The State concedes that this is a listed mitigating factor under Jessica’s Law, but it nevertheless argues that it was insufficient on its own to constitute a substantial and compelling reason for Spencer’s departure from Jessica’s Law. It mentions, in particular, that Spencer’s sexual abuse of his granddaughter had continued for years by the time the allegations came to light. Again, the defense makes little response, except to emphasize that the absence of a prior record is a statutory mitigator.
Despite the lack of a criminal record being a listed Jessica’s Law mitigator, the State makes an accurate and sensible assessment of this factor. The only evidence before the court, which would not include the several family members who disbelieved Spencer’s confession, was that Spencer had engaged in lewd fondling of his granddaughter for years. No reasonable person would regard the fact that he had never been caught and prosecuted before as a substantial and compelling reason to grant him a departure from Jessica’s Law.
Support of Family and Friends. The State attempts to undercut the repeated praise of Spencer by (almost exclusively) family members by emphasizing that these persons also expressed disbelief in his guilt. The State takes the aggressive position that such disbelief would actually be harmful, making Spencer likely to reoffend while on probation. The defense response to this argument is to regurgitate those parts of support statements that do not assert Spencer’s innocence.
Although we agree with the State that the protestations of Spencer’s innocence have a tendency to weaken the support statements in the sentencing transcript and in the letters reviewed by Judge Dowd, as do repeated, desperate references to the need for someone to care for Spencer’s wife, our abuse of discretion standard limits our exercise of skepticism. Even though the record makes clear that such support was not the uniform response of Spencer’s family, including at least one of his young victims, we reluctantly concede that a reasonable person could decide that the support of family and friends was a substantial and compelling reason to grant Spencer’s departure from Jessica’s Law.
Degree of Harm. On this factor, the State argues that this should not be a permissible mitigator under Jessica’s Law, given legislative testimony about the lifelong consequences from sexual victimization of children. (The State evidently fails to grasp that this is a legal argument, rather than an abuse of discretion argument.) It also argues that Judge Dowd failed to acknowledge anything beyond the great-granddaughter’s mother’s statement that no one talks about the crimes, while the record also included the other victim’s personal statement that she still suffers from the trauma caused by her grandfather’s abuse. The defense brief overstates its record support, asserting that the parents of the victims, i.e., plural, said that the victims were not hurt by Spencer’s actions.
This factor again favors the State, even if one ignores its legal argument and concentrates only on its argument regarding Judge Dowd’s incomplete review or comprehension of the victim impact statements under the forgiving abuse of discretion standard of review. No reasonable person would extrapolate from one victim’s mother’s lukewarm statement that the crimes are never discussed and thus her daughter is back to her old self to a “degree of harm . . . significantly less than typical for such an offense.” K.S.A. 21-4716(c)(1)(E). There was a second victim, at a similar vulnerable age to the first victim, who had the misfortune of living with the defendant and therefore being handy for repeated molestation. Judge Dowd did not account for the harm done to her.
Conclusion. We have previously said that “[a]s long as one factor relied upon by the sentencing court is substantial and compelling, the departure sentence should be upheld,” State v. Blackmon, 285 Kan. 719, 725, 176 P.3d 160 (2008), and that each mitigating factor standing alone need not be sufficient to justify a departure, if the reasons taken collectively constitute a substantial and compelling basis for departure, see Blackmon, 285 Kan. at 724-25; State v. Minor, 268 Kan. 292, 311, 997 P.2d 648 (2000). Here, the collective does nothing to strengthen the only individual factor of support of family and friends. Moreover, to the extent support of Spencer’s family and friends can reasonably be characterized as a substantial and compelling reason to depart, the record on appeal demonstrates that it is far from an unalloyed good. A significant faction of Spencer’s family, including the victim most affected by his crimes, wanted him in prison. Although an abuse of discretion standard is always difficult for any appellant to meet, Judge Dowd’s overall performance at this sentencing was inadequate. He disregarded undisputed evidence. He failed to conduct an appropriate weighing of competing information. His belated, defense-scripted effort to improve upon his performance only served to emphasize its original deficiencies. We therefore hold, under the circumstances of this case, that Judge Dowd abused his discretion in granting the departure from Jessica’s Law. As a result, Spencer’s sentences must be vacated and the case remanded for resentencing. A different judge will conduct the resentencing, as Judge Dowd is now retired.
Existence of Substantial and Compelling Reasons for Dispositional Departure from Guidelines
The dispositional departure from a guidelines prison sentence to probation would not have been possible had Judge Dowd not first granted the departure from Jessica’s Law. Because we decide, as discussed below, that the new sentencing judge on remand may re-evaluate the evidence and decide anew whether to depart from Jessica’s Law and dispositionally, we proceed to analysis of this issue because of the possibility it may arise again.
Before Judge Dowd, in view of its agreement to stand silent at sentencing, the State did not raise the argument that any mitigators supporting the dispositional departure were not substantial and compelling. Because Spencer does not object, we nevertheless reach the merits. Our analysis is again limited to the four mitigators mentioned initially by Judge Dowd; again, he did not differentiate between the mitigators that supported the departure from Jessica’s Law and those that supported the dispositional departure.
The State’s first argument is that nonstatutory mitigators should be reviewed with stricter scrutiny than statutozy mitigators. The defense points out correctly that we no longer give analytical weight to such a distinction. See State v. Martin, 285 Kan. 735, 747, 175 P.3d 832 (2008). It does not appear, however, that Martin eradicated the customary corollary that nonstatutory factors must be consistent with the intent and purposes of the sentencing guidelines. See State v. Tiffany, 267 Kan. 495, 506, 986 P.2d 1064 (1999).
Age of defendant. On this issue, the State argues that only immaturity can be considered by a sentencing court, not maturity. It cites the Court of Appeals decisions in State v. Haney, 34 Kan. App. 2d 232, 241-42, 116 P.3d 747, rev. denied 280 Kan. 987 (2005), and State v. Ussery, 34 Kan. App. 2d 250, 258-59,116 P.3d 735, rev. denied 280 Kan. 991 (2005). Both of these opinions, nearly word-for-word identical, involved adult male codefendants who perpetrated sex crimes against an intoxicated 13-year-old girl in Lawrence. The defense argued that the age of these young adult codefendants should have exerted downward pressure on sentence length, because a juvenile male codefendant was punished less severely, despite his role as an instigator. This argument left the panel cold. See, e.g., Ussery, 34 Kan. App. 2d at 257-58. Yet neither case stands for the proposition that advanced age can never be considered as a mitigating factor; indeed, they imply that any age can be a factor when it is demonstrated to have affected a defendant’s judgment.
The defense brief has no response on this issue other than to state Spencer’s age.
As on the departure from Jessica’s Law, the State’s argument on this factor is far more persuasive. There is no evidence in the record that Spencer’s age of 76 had any negative effect on his judgment, which is the logical point of any age mitigator. No reasonable person would have relied upon Spencer’s age without such evidence to support the dispositional departure.
Lack of criminal record. The State cites our opinion in Murphy, 270 Kan. at 807, for the proposition that a lack of criminal history, by itself, is not sufficient to justify a departure from a guideline sentence but can be considered “in the overall picture.” This seems to be an argument attuned to an abuse of discretion standard of review. The State also cites the Court of Appeals opinion in State v. Richardson, 20 Kan. App. 2d 932, Syl. ¶ 2, 901 P.2d 1 (1995), for the idea that a defendant’s criminal history is (implicitly) never a proper departure factor, because the sentencing guidelines have already taken criminal history into account in setting presumptive sentence ranges. This is a legal argument appropriate for our de novo review.
The defense response to these arguments is virtually nonexistent.
We agree with the State that no reasonable person would have used Spencer’s lack of a criminal record to support a dispositional departure from a guidelines sentence to probation. As noted above, the only evidence in the record is that his molestation of one of the victims was a longstanding practice; the fact that his crimes had never previously come to light is not a point in his favor. In this case, we need not go the extra step to rule on whether the absence of criminal history is ever a proper mitigator to reduce a guidelines sentence.
Support of Family and Friends. The parties’ arguments on this factor for the dispositional departure do not differ meaningfully from their arguments on this factor for the departure from Jessica’s Law. Our response is therefore identical. Under an abuse of discretion standard, there is at least limited room to approve Judge Dowd’s reliance on this factor as a substantial and compelling reason for the dispositional departure. However, the full record’s exposure of the family divide over Spencer’s conduct amply supports the opposite outcome.
Degree of Harm. The State expands beyond its previous Jessica’s Law departure argument on this factor, and it brings our substantial competent evidence standard of review into play. The State asserts that this mitigator, despite its listing in K.S.A. 21-4716(c)(1)(E), was an improper basis for Judge Dowd’s dispositional departure in this case, because there was no proof of how much harm would be typical for the type of offense and no showing of how the facts in the case made the harm less significant.
Again, the defense does not make a particularized counterargument.
In our opinion in Minor, 268 Kan. 292, Justice Edward Larson noted that nothing in the record showed that the degree of harm or loss attributed to the current crime was significantly less than what would be typical: “We have no statements or evidence as to what is ‘typical for such an offense’ and no showing as to how the facts in this case make the ‘degree of harm or loss . . . significantly less.’ To the extent this factor was relied upon by the trial court, it is specifically disapproved.” Minor, 268 Kan. at 312. The Court of Appeals relied on Minor in the Haney and Ussery cases. See Haney, 34 Kan. App. 2d at 243; Ussery, 34 Kan. App. 2d at 260-61.
In the record on appeal before us, the only proof that the degree of harm caused by Spencer’s offense could have been less than might ordinarily be expected is the victim impact statement from his granddaughter, speaking for her daughter, his great-granddaughter. It indicated that the great-granddaughter was back to her old self, as no one talked about the crimes. This ultraslim reed cannot support the substantial competent evidence label that it must.
Conclusion. Our overall assessment of the four factors Judge Dowd originally articulated for the dispositional departure, whether considered individually or as a group, is the same as our assessment of the four factors when used as support for the departure from Jessica’s Law. Under the circumstances before us, Judge Dowd abused his discretion in granting the dispositional departure.
Extent of Departure
The last issue raised by the State questions the extent of the departure granted by Judge Dowd. We need not reach this issue, given our decision to vacate Spencer’s sentences and remand.
Permissible Actions on Remand
We must also discuss the appropriate scope of the new sentencing judge’s authority on remand. This question appears to have been decided by Blackmon, although Blackmon was not a Jessica’s Law case. See Blackmon, 285 Kan. at 730-32. Under that case, if a Jessica’s Law sentence is vacated and a remand ordered for re-sentencing, the judge may re-evaluate the factors bearing on sentencing, including adding to them, and re-grant or deny a departure from Jessica’s Law and a dispositional departure from the default guidelines sentence to probation, as well as a durational departure. This vacate-and-remand situation matches that before us in Blackmon-, as discussed above, the situation in which Judge Dowd found himself between Spencer’s sentencing and the hearing on the motion regarding the journal entry did not.
Defense Challenge to Offense Severity Level
As mentioned above, the parties disagreed at sentencing about the appropriate sentencing guidelines nondrug grid box to which Judge Dowd should be permitted to depart from a Jessica’s Law hard 25. The State took the position that the appropriate box was that for an offender with a criminal history of I and an offense severity level 1. The defense took the position that the appropriate box was that for an offender with a criminal history of I and an offense severity level 3.
Although Spencer did not file a prophylactic cross-appeal of Judge Dowd’s ruling in favor of the State on this point, and he has not filed a motion to correct an illegal sentence, he now seeks to have the issue decided in his favor by involdng K.S.A. 21-4721(e)(3), which reads: “In any appeal, the appellate court may review a claim that: . . . the sentencing court erred in ranking the crime severity level of the current crime . . . .” The State did not file a reply brief, and we thus have no response from it regarding the authority of the court to decide this issue.
In Gracey, 288 Kan. 252, 200 P.3d 1275 (2009), the appeal was the defendant’s; he challenged the State’s failure to allege his age of 18 or more in the complaint and the sentencing court’s refusal to consider a dispositional departure after departing from a Jessica’s Law hard 25. After deciding those issues, Justice Rosen then wrote: “[T]he State contends that the district court imposed a sentence lower than the guidelines sentence and that the imposition of such a sentence was illegal.” He then observed that such an allegation raised a question of law over which an appellate court’s review was unlimited, and quoted from K.S.A. 22-3504(1), which allows a court to correct an illegal sentence at any time. Gracey, 288 Kan. at 260-61.
Gracey’s structure and content thus implicitly permit a party that did not take an appeal or file a motion to correct illegal sentence to mount a challenge to a sentence’s illegality during the other party’s appeal. Consistent with Gracey, this court has authority to entertain Spencer’s challenge to Judge Dowd’s use of an offense severity level 1. This has a certain practical allure as well. A ruling on the merits of this issue will provide guidance on remand to the judge who replaces Judge Dowd.
Settlement of the parties’ argument over which offense severity level governs an aggravated indecent liberties conviction after a departure from Jessica’s Law requires statutory interpretation or construction, over which this court has de novo review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). The fundamental rule
“governing our 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.’ 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 K.M.H., 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 the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constuctions 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 the 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 the 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).” Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, 754-55, 189 P.3d 494 (2008).
On the merits, the defense cites only to Gracey, asserting that it held a departure from the hard 25 sentence of Jessica’s Law to a severity level 3 under the sentencing guidelines “not illegal.” This is true; but the mirror image procedural posture of Gracey, i.e., the State challenging the legality of a severity level 3 assignment on the defendant’s appeal rather than the defense challenging the legality of a severity level 1 assignment on the State’s appeal, means that Gracey does not directly control the outcome here. A holding that a severity level 3-based sentence is “not illegal” is not the same thing as a holding that a severity level 1-based sentence is illegal. Moreover, the Gracey parties’ disagreement was limited to whether the sentencing judge had used the appropriate criminal history classification, not the appropriate offense severity level, in choosing the applicable grid box under the guidelines. In other words, in Gracey we never were asked to examine or rule upon whether a departure from a hard 25 under Jessica’s Law to a sentence “pursuant to the sentencing guidelines act” under K.S.A. 21-4643(d) necessarily meant a grid sentence and, if so, which offense severity level was appropriate for an aggravated indecent liberties conviction.
The same has been true in several other Jessica’s Law cases, where mention has been made of a departure from Jessica’s Law to a grid sentence or a particular severity level, but no appellate ruling on the propriety of that course of action has been sought or pronounced. See State v. Stone, 291 Kan. 13, 17, 237 P.3d 1229 (2010) (mentions district judge departed from Jessica’s Law to 61 months); State v. Oehlert, 290 Kan. 189, 190-91, 224 P.3d 561 (2010) (mentions district judge departed from Jessica’s Law to 60 months); State v. Ballard, 289 Kan. 1000, 1003, 218 P.3d 432 (2009) (district judge had granted joint recommendation from Jessica’s Law to severity level 3); State v. Seward, 289 Kan. 715, 716, 217 P.3d 443 (2009) (mentions defendant sought departure from Jessica’s Law to grid); State v. Easterling, 289 Kan. 470, 471, 213 P.3d 418 (2009) (suggestion that Jessica’s Law departure would go to 118 months); Gracey, 288 Kan. at 254 (departure from Jessica’s Law apparently to 3H before application of durational, dispositional departures); State v. Thomas, 288 Kan. 157, 158-59, 199 P.3d 1265 (2009) (departure from Jessica’s Law would have led to 59 months under a severity level 3); State v. Frost, 2010 WL 1379112, at *2, unpublished opinion filed April 2, 2010 (S. Ct.) (defendant had received departure from Jessica’s Law to 72 months).
Unfortunately, Jessica’s Law and the sentencing guidelines act to which it refers a district judge when he or she departs from the hard 25 under K.S.A. 21-4643(d) are nothing if not ambiguous. Indeed, they set up an endless feedback loop with no plain or obvious resolution.
Taking the crime at issue in this case as an example, aggravated indecent liberties with a child is defined in K.S.A. 21-3504. Specifically, Spencer pleaded guilty to two charges under K.S.A. 21- 3504(a)(3)(A). K.S.A. 21-3504(c) states: “Except as provided further, aggravated indecent liberties with a child as described in subsection[]... (a)(3) is a severity level 3, person felony.... When the offender is 18 years of age or older, aggravated indecent liberties with a child as described in subsection (a)(3) is an off-grid person felony.”
Jessica’s Law, in K.S.A. 21-4643(a)(l)(C), makes Spencer’s crime punishable by life with no possibility of parole for 25 years. But, once the district judge decides to depart from the mandatory minimum provision, Jessica’s Law’s departure provision, K.S.A. 21-4643(d), states that a “departure sentence shall be the sentence pursuant to the sentencing guidelines act, K.S.A. 21-4701 et seq. . . . and no sentence of a mandatory minimum term of imprisonment shall be imposed hereunder.” The only “sentencing guidelines act” provision for aggravated indecent liberties and the other Jessica’s Law crimes when the defendant is 18 or older and the victim is younger than 14 is K.S.A. 21-4706(d), which reads in pertinent part: “[Sjuch violations are off-grid crimes for the purposes of sentencing. . . . [T]he sentence shall be imprisonment for life pursuant to K.S.A. 21-4643, and amendments thereto.” The feedback loop for departures from Jessica’s Law is thus complete: Jessica’s Law sends the district judge to the sentencing guidelines act, which sends the district judge to Jessica’s Law, which sends the district court to the sentencing guidelines act, and so on.
How should the loop be broken?
The legislative intent that a defendant in Spencer’s shoes generally be punished with, and incapacitated by, a lengthy prison term seems clear. The legislative history on this point emphasizes this impression. See House J. 2006, p. 1323 (Speaker of the House, Michael O’Neal’s explanation of vote: “I vote ‘YES’ on HB 2576. Between protecting the rights of those committing crimes against children and protecting children from heinous acts, I’ll err in favor of protecting children EVERY time. I’ll leave it to others to fret over whether we are being too tough. I make no apology. This is about protecting children. I hope the message we send to the sick criminal minds out there works, but if not and they break our laws, I want to know where they’ll be the rest of their lives and if it’s an added prison bed, sign me up.”) Yet the inclusion of a departure option to remove the mandatory minimum term is express. K.S.A. 21-4643. It is regrettable that similar drafting precision to define a Jessica’s Law departure’s effect on the underlying life sentence was not employed and that the legislative history is silent on the solution to the statutory circularity.
Florida was the first state to pass Jessica’s Law, and Kansas looked to Florida when it passed Jessica’s Law here. Forty-three states have passed some form of Jessica’s Law, and of those states, nine have sentencing grid schemes similar to Kansas. But the interpretations of Jessica’s Law-type statutes in our sister states also does not help us. The primary difference between Kansas and our sister states is that none of those states with a similar sentencing scheme to Kansas statutorily permit the trial court to depart from the mandatory minimum sentences. See Ark. Code Ann. § 5-14-103 (2009) (offender convicted of Jessica’s Law-type offense sentenced to minimum 25-year term; no indeterminate sentences; no statutory reference to departure from mandatory sentence); Fla. Stat. §§ 794.011 (2010), 775.08 (2010), 921.0022 (2010) (mandatory 25-year minimum for dangerous sexual felony offenders, sexual battery of a child under the age of 12, and lewd or lascivious molestation of a child under the age of 12; statutory scheme assigns criminal severity ranking of 10 for Jessica’s Law-type offenses; no statutory reference to departure from mandatory sentence); La. Rev. Stat. §§ 14:42, 14:43, 15-537(B) (2011) (mandatory life sentence or mandatory 20 years for Jessica’s Law-type offenses with child under the age of 13 at hard labor without parole, probation, or suspension of sentence; no statutory reference to departure from mandatory sentence); Mich. Comp. Laws § 750.520b (2010) (mandatory 25-year term if victim under the age of 13 and offender is 17 years of age or older; assigns felony level of Class A; no statutory reference to departure from mandatory sentence); Minn. Stat. § 609.3455 (2010) (mandatory life sentence for egregious first-time and repeat offenders; guidelines presumptive sentence does not apply to offenders under § 609.3455; no statutory reference to departure from mandatory life sentence); S.C. Code Ann. § 16-3-655 (Law. Co-op 2010) (up to 30-year term for offender convicted of criminal sexual conduct in first degree when offender is over 18 and victim is under 11 years of age; no statutory reference to departure from mandatory sentence); Tenn. Code Ann. §§ 39-13-522, 40-35-211 (2010) (rape of a child is a Class A felony; mandatory 25-year term; no indeterminate sentences; no statutory reference to departure from mandatory sentence); Wash. Rev. Code § 9.94A.507 (2011) (legislature limits court’s authority to depart for Jessica’s Law offenses; mandatory 25-year term or more).
In the absence of other guidance, we turn to subsequent legislative action, a canon of statutory construction, and the assumptions underlying our earlier Jessica’s Law cases, remembering Justice Oliver Wendell Holmes’ admonition that the life of the law is not logic, but experience.
The subsequent legislative action with some instructive power is the 2008 amendment to K.S.A. 21-4719, which governs departures from grid sentences. See K.S.A. 2008 Supp. 21-4719(a). It qualifies as “subsequent” in this case because Spencer’s crimes of conviction were committed in 2007. Subsection (a) of that statute was altered, effective July 1, 2008, to include language limiting durational and dispositional departures in those Jessica’s Law cases involving “crimes of extreme sexual violence,” which includes rape, aggravated criminal sodomy, and aggravated indecent liberties perpetrated on children younger than 14. See K.S.A. 21-4716 (defining “crime of extreme sexual violence”). After amendment, 21-4719(a) reads in pertinent part: “The sentencing judge shall not impose a downward dispositional departure sentence for any crime of extreme sexual violence .... The sentencing judge shall not impose a downward durational departure sentence for any crime of extreme sexual violence, ... to less than 50 percent of the center of the range of the sentence for such crime.”
Because we presume that legislation happens for a reason and that amendments usually work a change in existing law, see Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006) (presumption against meaningless legislation), and Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs., 290 Kan. 446, 464, 228 P.3d 403 (2010) (presumption that statutory amendment modifies prior law), it appears that the legislature believed the statutory scheme as it existed before the 2008 amendment permitted both durational and dispositional departures in Jessica’s Law cases. If this were not the case, it would not have taken the trouble in 2008 to disallow dispositional departures altogether and limit the extent of durational departures. In addition, because it placed the amendment in the sentencing guidelines act provision on departures from grid sentences, it also implied that the place to which a sentencing judge went when he or she departed from the mandatory minimum of Jessica’s Law was not only a “sentence pursuant to the sentencing guidelines act,” but a sentence pursuant to a sentencing guidelines grid. Finally, the limit it enacted for durational departures plainly clearly uses the grid as a starting place, keying the maximum reduction in prison time to 50 percent of the middle number in the assigned grid box. We deduce from all of these after-acquired clues that the legislature always intended a sentencing judge who departed from the mandatory minimum of Jessica’s Law under K.S.A. 21-4643(d) to go to the applicable grid box to determine the departure sentence.
The statutory canon of construction known as the rule of lenity compels the answer to the next question: What is the applicable grid box?
As referenced above, both the definitional statutes for Jessica’s Law crimes — see K.S.A. 21-3447 (aggravated trafficking); K.S.A. 21-3502 (rape); K.S.A. 21-3504(a)(3) (aggravated indecent liberties); K.S.A. 21-3506(a)(l) and (a)(2) (aggravated criminal sodomy); K.S.A. 21-3513 (promoting prostitution); K.S.A. 21-3516(a)(5) and (a)(6) (sexual exploitation) — and K.S.A. 21-4706(d), for sentencing of such crimes, identify them as off-grid crimes. And a defendant convicted of a Jessica’s Law crime who receives a departure from the mandatory minimum under K.S.A. 21-4643, remains convicted of an off-grid offense. See Ballard, 289 Kan. at 1012. Nevertheless, if the appropriate sentence for a defendant who receives a Jessica’s Law departure must be found not only in the sentencing guidelines act but on a sentencing guidelines grid, the defendant must have an offense severity level assigned to the crime of conviction. See K.S.A. 21-4704(d) (grid box determined by intersection of offense severity level rating for the current crime and criminal history score).
The State, as it did in this case, has been known to argue that every Jessica’s Law case not sentenced to the mandatory minimum cannot go below a severity level 1 once it moves to the sentencing guidelines grid. The defense bar, on the other hand, has argued that every Jessica’s Law case not sentenced to the mandatory minimum must be sentenced dependent on the severity level assigned to the crime when it lacks die element of disparity between the defendant’s and the victim’s ages, i.e., defendant 18 or older and victim younger than 14.
There is precious httle statutory language to vindicate either position, so we fall back on the rule of lenity, see Horn, 288 Kan. at 693-94 (invoking rule of lenity to assign severity level to attempt of Jessica’s Law offense), and accept the defense argument. A sentencing judge who departs from the mandatory minimum of Jessica’s Law should look to the severity level assigned to the crime when it lacks the element of disparity between the defendant’s and the victim’s ages. In other words, the offense severity level for a violation of K.S.A. 21-3447 (aggravated trafficking), K.S.A. 21-3502 (rape), and K.S.A. 21-3504(a)(l) and (a)(2) (aggravated criminal sodomy) is 1; for a violation of K.S.A. 21-3504(a)(3)(A) (aggravated indecent liberties) is 3; for'a violation of K.S.A. 21-3513 (promoting prostitution) is 6; and for a violation of K.S.A. 21-3516(a)(5) and (a)(6) (sexual exploitation of a child) is 5.
Finally, experience. The holdings set forth above appear to be consistent with the patterns adopted by various district court judges in the Jessica’s Law cases that have so far reached this court. See, e.g., Ballard, 289 Kan. at 1003; Gracey, 288 Kan. at 253; Thomas, 288 Kan. at 159. When departing from the mandatory minimum under K.S.A. 21-4643(d), these judges have gone to the grid at the severity level dictated by the crime-defining statute less the element of the defendant’s and victim’s age disparity. This is a situation, perhaps emblematic of common-law development'as a whole, in which all of us are learning by doing. Certainly, if the legislature believes we have misconstrued its intention, it will waste no time in letting us know.
We pause to make a closing point, an explicit correction of the label this court has previously used for departures from the mandatory minimum of Jessica’s Law. Although several of our cases have referred to such a departure as a “durational departure” or a “downward departure” or a “downward durational departure”— see State v. Huerta-Alvarez, 291 Kan. 247, 251-52, 243 P.3d 326 (2010) (“downward departure” from Jessica’s Law sought); State v. Garza, 290 Kan. 1021, 1023, 236 P.3d 501 (2010) (downward departure); State v. Gomez, 290 Kan. 858, 861, 235 P.3d 1203 (2010) (“durational departure” denied by district judge); State v. Plotner, 290 Kan. 774, 780-81, 235 P.3d 417 (2010) (two-step process for considering “downward durational departure”); State v. Reyna, 290 Kan. 666, 689-90, 234 P.3d 761 (2010) (no abuse of discretion in denying motion seeking “durational departure”); State v. Trevino, 290 Kan. 317, 318, 227 P.3d 951 (2010) (State agreed to recommend “durational departure”); State v. Oehlert, 290 Kan. 189, 190-91, 224 P.3d 561 (2010) (district judge granted defendant’s downward “durational departure”); State v. Marler, 290 Kan. 119, 127, 223 P.3d 804 (2010) (no abuse of discretion to deny downward “durational departure”); State v. Robison, 290 Kan. 51, 56-57, 222 P.3d 500 (2010) (same); State v. Mondragon, 289 Kan. 1158, 1162, 220 P.3d 369 (2010) (same); Ballard, 289 Kan. 1006 (jurisdiction to review “downward durational departure”); State v. Seward, 289 Kan. 715, 721-22, 217 P.3d 443 (2009) (no abuse of discretion to deny “downward durational departure”); State v. Gonzalez, 289 Kan. 351, 356, 212 P.3d 215 (2009) (defendant sought downward durational departure); State v. Spotts, 288 Kan. 650, 655-56, 206 P.3d 510 (2009) (no abuse of discretion to deny downward durational departure); Gracey, 288 Kan. at 254 (“downward durational departure” from low-end presumptive sentencing range for severity level 3, criminal histoiy H nondrug felony); State v. Thomas, 288 Kan. 157, 164, 199 P.3d 1256 (2009) (no abuse of discretion to deny motion for “downward durational departure”); State v. Ortega-Cadelan, 287 Kan. 157, 164-66, 194 P.3d 1195 (2008) (defense argument for “downward durational departure” rejected); State v. Frost, 2010 WL 1379112, at *2 unpublished opinion filed April 2,2010 (S. Ct.) (defendant received “downward durational departure”); State v. Gilliland, 2010 WL 1379182, at *1 unpublished opinion filed April 2,2010 (S. Ct.) (motion for “downward durational departure” denied) — these actually are confusing misnomers.
The sentence under Jessica’s Law is life imprisonment. It is true that a departure to the grid for a determinate sentence displays at least numerical indicia of release from prison before either the expiration of the defendant’s natural life or the Parole Board’s dispensation of grace. Yet it is best to refrain from calling a departure from the mandatory minimum of Jessica’s Law to the sentencing guidelines grid a “durational departure” or a “downward departure” or, the alliterative trifecta, a “downward durational departure.” These terms are best reserved for the last of the three types of departures available from a Jessica’s Law sentence, the one Judge Dowd did not try to grant Spencer, i.e., a departure from the grid box sentence dictated by the intersection of severity level and criminal history to a shorter determinate prison sentence. See Gracey, 288 Kan. at 253 (after departure from mandatory 25 years to 3H, durational departure to 31 range; then dispositional departure considered); see also Ballard, 289 Kan. at 1008-09 (once sentenced on grid, judge free to depart). That option, like the two departures granted by Judge Dowd, also will be in play on remand in this case.
Conclusion
In view of all of the foregoing discussion, under the version of Jessica’s Law in effect before amendment in 2008, a sentencing judge need not differentiate between the mitigators that constitute substantial and compelling reasons for a departure from the mandatory minimum of Jessica’s Law and those that support an additional dispositional departure from the default prison sentence pursuant to the sentencing guidelines act. On the record before us in this case, the district judge abused his discretion in granting the defendant a departure from the hard 25 of Jessica’s Law. He also abused his discretion in granting the defendant a dispositional departure from the sentencing grid. We therefore vacate Spencer’s sentences and remand for resentencing. Given the sentencing judge’s intervening retirement, the district judge who replaces him on remand may re-evaluate the factors bearing on Spencer’s sentencing, including adding to them, and re-grant or deny a departure from Jessica’s Law and impose a durational and/or dispositional departure. The appropriate grid sentence for an off-grid Jessica’s Law crime, once a judge has decided to depart from the mandatory minimum of Jessica’s Law, is that dictated by the severity level assigned to the crime when it lacks the element of disparity between the defendant’s and the victim’s ages.
Sentences vacated and case remanded for resentencing. | [
-112,
-54,
-35,
60,
27,
99,
27,
28,
114,
-41,
-73,
83,
-87,
-50,
1,
123,
-45,
79,
85,
97,
-47,
-73,
7,
-32,
-74,
-5,
-7,
-44,
-70,
91,
-20,
-99,
72,
-16,
30,
-11,
-26,
-54,
85,
80,
-114,
7,
-104,
-11,
-48,
66,
38,
99,
90,
14,
49,
30,
-77,
42,
30,
-61,
-120,
45,
27,
61,
8,
-15,
-6,
31,
75,
52,
-77,
-96,
-70,
6,
-8,
55,
24,
57,
9,
-24,
115,
-92,
-122,
116,
79,
-117,
-92,
102,
98,
33,
-83,
-10,
-67,
-120,
14,
114,
-68,
-25,
-104,
88,
97,
5,
-99,
-103,
116,
20,
15,
120,
-25,
46,
21,
100,
-120,
-53,
-76,
-111,
-115,
117,
-94,
-70,
-29,
-91,
1,
101,
-58,
-90,
92,
86,
48,
19,
-34,
-76
] |
The opinion of the court was delivered by
Nuss, J.:
This is an appeal of damages awarded to Davenport Pastures, LP (Davenport), by the Morris County Board of County Commissioners (Board). Davenport claims it was denied due process by the county counselor’s dual roles as the Board’s legal ad-visor and as the Board’s advocate during and after the damages hearing process. After the district court and the Court of Appeals affirmed the Board, we granted in part Davenport’s petition for review under K.S.A. 20-3018(b).
We hold Davenport’s due process rights were violated. Accordingly, we reverse the decisions of the Court of Appeals, the district court, and the Board and remand to the Board for further damages proceedings.
Facts
On February 9, 2000, Davenport filed a written application for damages with the Morris County Board of County Commissioners. Davenport sought damages arising from the Board’s decision to vacate two roads that provided access to Mulvane Ranch, which Davenport leased. Without conducting a hearing, the Board directed Assistant County Attorney William Kassebaum to draft a letter on its behalf rejecting Davenport’s application. All three commissioners signed the letter.
Davenport appealed to the district court, where Kassebaum represented the Board. The court conducted an evidentiary damages hearing, where Kassebaum called witnesses for the Board, cross-examined Davenport’s expert witnesses, and made arguments to the court. The district court ultimately awarded Davenport $30,000.
The Board appealed, and Kassebaum made its arguments to the Court of Appeals. That court determined that the district court’s decision to conduct an evidentiary hearing exceeded the scope of its judicial review under K.S.A. 60-2101(d) because the Board had never conducted a hearing or found that any damages should be awarded. The panel remanded to the district court with instructions to return the case to the Board for further compensation proceedings. Davenport Pastures, LP v. Board of Morris County Comm’rs, 31 Kan. App. 2d 217, 225, 62 P.3d 699, rev. denied 276 Kan. 967 (2003) (Davenport I).
On remand, Kassebaum met with the Board’s three commissioners and advised them of the need for a damages hearing and the accompanying procedural requirements. At oral arguments before this court, he represented that nothing was discussed regarding standards or how to evaluate the evidence. Kassebaum also separately took two commissioners to view the two roads. One of these two commissioners, Jerry Britt, also twice reviewed the roads independently. He later testified in his deposition that these unaccompanied viewings “helped me agree with some of the testimony that I had heard.”
Commissioner F.J. Revere testified in his deposition that “we needed to hire” an appraiser because Davenport had one. Kassebaum recommended the Board hire David Sundgren as its appraiser and expert witness. Commissioner Darrell Miller testified in his deposition that Sundgren was hired after Kassebaum described Sundgren as “credible.”
During the Board’s damages hearing, Davenport’s two attorneys presented evidence through two appraisers and sought $382,965 in damages. Kassebaum was the only other legal counsel present. He cross-examined Davenport’s two expert witnesses, conducting voir dire on one. He also directly examined the Board’s appraiser Sundgren, who opined total damages of only $4,050. Kassebaum also made oral arguments to the Board, including comments on the evidence. Commissioner Revere later testified in his deposition that he viewed Davenport as an adversary and that both Kassebaum and Sundgren represented the Board at this hearing.
The Board took the matter under advisement. In the following weeks, Davenport’s possible damages award was discussed at a minimum of five open Board meetings. It is undisputed that Kassebaum was present at some of these meetings. Commissioner Miller acknowledged in his deposition that Kassebaum sometimes “was present when we discussed the damages” and clarified Kassebaum’s involvement during the following colloquy:
"Q: Do you recall discussing any of the evidence with Mr. Kassebaum?
“A: Well, he being our attorney I’m sure we discussed some things with him.
“Q: What lands of things did you discuss?
“A: I don’t recall the specifics.
“Q: Did you talk with him about how you ought to view the evidence?
“A: No.
“Q: Did you talk with him about which witnesses were credible and which witnesses weren’t credible?
“A: No, no.
“Q: Did you talk with him about what you ought to award as far as a damage amount?
“A: Not to Mr. Kassebaum.”
Kassebaum advised the commissioners to individually review the evidence. During a later Board meeting, he instructed the Board members to “[wjrite down on a piece of paper wh[at] you think the damages are.” Each commissioner then individually provided his damages figure to Kassebaum, who in turn, presented the results to the Board at the next open meeting. Because all three commissioners had calculated different damages figures, Kassebaum instructed the Board to discuss the matter and arrive at a final damages award. Commissioner Miller testified in his deposition about these events:
“Q: Now, you indicated that during this public meeting where Mr. Kassebaum came back and reported to you on what each of you had voted on, that there was some discussion amongst the three of you—
“A: Uh-huh.
“Q: —to resolve — to come to a final number, correct?
“A: Correct.
“Q: And was Mr. Kassebaum present at the time you had that conversation?
“A: I don’t recall if he was there or not. I assume he probably was when we were discussing it, since he’s our counselor.”
Commissioner Britt similarly testified in his deposition:
“Q: You communicated the [damages] number to him [Kassebaum], you think you may have discussed some of the evidence in front of him, correct?
“A: That’s the way I remember it.”
Ultimately, the Board decided to award $4,050 in damages: the amount opined by the Board’s hired appraiser Sundgren. However, this decision was not immediately communicated to Davenport. Instead, the Board directed Kassebaum — without Davenport’s knowledge — to write the Board’s formal decision, subject to Board review.
The record is unclear on whether Kassebaum was merely a scrivener for the Board, i.e., he only recorded the Board’s specific findings, or whether he independently made some findings and included them in the Board’s report as its own. The following deposition colloquies between Commissioner Miller and Davenport’s counsel illustrate the mix:
“Q: You resolved' — came to an agreement on a number for the damages?
“A: Yes.
“Q: What happened next?
“A: Once we agreed upon a number then the — we directed Mr. Kassebaum to come up with — or prepare the damage assessed and he prepared that and give to use for review.
“Q: Did you tell Mr. Kassebaum what he should say in that document or award, or you just told him ‘This is the number we agreed on’?
“A: Well, that’s the number agreed on, and he went and prepared it and brought it back for our review, and then there were changes made. I think we had three or four different drafts that was made before the final draft was approved.
“Q: Did you direct Mr. Kassebaum that he needed to write a decision, that you needed—
“A: We didn’t — I think that’s part of the hearing process, but I do not know that. That was just something that we had to have a damage done in response, I assume.
“Q: Okay. And the Board members told Mr. Kassebaum ‘This is the number we agreed on’?
“A: Yes, and then he prepared it.
“Q: Did you rely on him to prepare the decision?
“A: Oh, no. You mean as far as the damage discussion.
“Q: No, not the dollar amount. I understand the Commissioners voted on that dollar amount and they told Mr. Kassebaum what the dollar amount was. My question is whether or not the Board relied on Mr. Kassebaum to write the written decision that was ultimately issued that incorporated the damage amounts the Board voted?
“A: Yes, we relied on him.
“Q: Okay. Did you tell him what that decision needed to say?
“A: I don’t think we did, because I don’t think we knew what was supposed to be in it as far as the specifics as far as the request of the Court, because I — we don’t know how to write legal documents, so we relied on him to do that.
“Q: Or did you rely on him to say the things that needed to be said?
‘‘A: We instructed him on the substance and then he prepared as far as putting it down in writing.
“Q:... But what I want to know is, were those things that you openly discussed during those regular open public meetings of the Board, and Mr. Kassebaum was there taking notes and taking it up and regurgitated it in a document, or did you do as you previously said, told Mr. Kassebaum ‘This is the number we agreed on, go write — whatever we have to write, write it for us,’ and then you reviewed it and made some chances to it and ultimately adopted it?
“A: That’s — we—there were things in here [the final report] that we discussed in an open meeting. Mr. Kassebaum was present when we discussed the damages, and he wrote — he put the stuff in the document that — because we didn’t know how to prepare a document—
“Q: Uh-huh.
“A: —because that’s his expertise and not ours, so he put our feelings down in a document, I think.”
After Kassebaum made a few changes to his initial draft at the Board’s request, the decision was published and signed by the three commissioners. Davenport and its counsel were never given an opportunity to review, provide input, or object to Kassebaum’s work. Apparently, the first time Davenport or its counsel learned of the Board’s decision on damages was when they received the final written report.
Davenport appealed the Board’s $4,050 damages award to the district court, where Kassebaum again represented the Board. The court granted the Board’s motion for summary judgment on all issues. On Davenport’s specific claim of a due process violation due to Kassebaum’s dual roles, the court held:
“Regarding the county counselor’s involvement in this case: The court has made a finding based upon the record that the County Counselor, Mr. Kassebaum, participated in the damage hearing in this case. He questioned witnesses called by the plaintiff and he called witnesses to testify about the value of the loss to the plaintiff. There is no evidence that he participated in the deliberations of the board regarding damages. He did put to writing the decision of the board as to damages. His participation was well within the bounds of proper conduct. There is no evidence that he influenced the board’s decision.”
Davenport appealed the district court’s decision, and Kassebaum again made the Board’s arguments to the Court of Appeals. The panel affirmed, holding that Kassebaum’s dual participation did not deny Davenport’s right to due process because Davenport failed to present “evidence that an attorney’s action in representing a board at a quasi-judicial hearing as well as advising the Commission has actually affected the Commission’s decision.” (Emphasis added.) Davenport Pastures v. Board of Moms County Comm’rs, 40 Kan. App. 2d 648, 655, 194 P.3d 1201 (2008) (Davenport II).
More facts will be added as necessary to the analysis.
Analysis
Issue: The county counselors multiple roles deprived Davenport of due process.
The parties' arguments
Davenport claims that Kassebaum’s dual roles should not have been allowed. Specifically, Davenport argues it was denied due process by Kassebaum’s advocating against its application for damages, while — in its absence — Kassebaum also advised the Board on legal and procedural matters, including drafting the Board’s decision.
Davenport further contends that the district court and Court of Appeals both erred in requiring a due process violation to be proved by the dual representation’s causing actual bias, i.e., actually influencing or affecting the Board’s decision. Instead, Davenport should have only been required to demonstrate that the dual roles created an appearance of impropriety or bias. Davenport argues that it made this lesser showing and therefore the Board’s decision must be declared void.
The Board responds that Kassebaum did not act as a legal advisor for the Board during the damages hearing. The Board admits that consistent with Kassebaum’s role as county counselor, he was present during the Board meetings, including those where Davenport’s damages were discussed. However, Kassebaum “took care not to partake or advise the Board during their discussions.” Kassebaum admits to writing the Board’s decision but characterizes his involvement “as a scribe for the Board.”
Standard of review
The Fifth Amendment to the United States Constitution provides that “[n]o person shall be . . . deprived of . . . property, without due process of law, nor shall private property be taken for public use without just compensation.” This right is applied to the states through the Fourteenth Amendment to the United States Constitution. Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 481 n.10, 94 L. Ed. 2d 472, 107 S. Ct. 1232 (1987). This right can include the right of access. Smith v. State Highway Commission, 185 Kan. 445, 451, 346 P.2d 259 (1959) (The right of access held by a property owner whose property abuts a public road is “property of which he may not be deprived without his consent, except on full compensation and due process of law.”).
“It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement of due process.’ ” Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 876, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009). This principle applies to administrative agencies which adjudicate as well as to courts. Withrow v. Larkin, 421 U.S. 35, 47, 43 L. Ed. 2d 712, 95 S. Ct. 1456 (1975). A denial of due process renders the resulting Board decision void. See Zimmerman v. Board of Wabaunsee County Comm’rs, 289 Kan. 926, 947, 218 P.3d 400 (2009). Whether a right to due process has been violated is a question of law over which this court exercises unlimited review. State v. Holt, 285 Kan. 760, 774, 175 P.3d 239 (2008); see also City of Wichita v. McDonald’s Corp., 266 Kan. 708, 971 P.2d 1189 (1999) (reviewing, de novo, whether a regulation of traffic flow to and from private property was a compensable taking).
Discussion
The district court concluded that “[tjhere is no evidence that [Kassebaum] influenced the board’s decision.” The Court of Appeals essentially agreed. It concluded that the “evidence shows the Commission complied with the requirements of due process. Its proceeding was fair, open, and impartial, as required by Kansas law.” 40 Kan. App. 2d at 655. More specifically, the panel cited two cases to support its holding that for Davenport to prove a due process violation, it must show that Kassebaum’s dual roles actually affected the Board’s decision, i.e., it must show actual bias. 40 Kan. App. 2d at 655 (citing Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 361-62, 770 P.2d 423 [1989]; Colorado Motor Vehicle v. Northglenn, 972 P.2d 707, 711 [Colo. App. 1998]).
The panel outlined the facts and holdings of three cases cited by Davenport but dismissed them by stating that “[n]o Kansas appellate court has adopted any of the rules found in Pennsylvania and California.” 40 Kan. App. 2d at 653-54 (discussing Horn v. Township of Hilltown, 461 Pa. 745, 748, 337 A.2d 858 [1975] [due process rights may be violated if there is an appearance of impropriety]; Newtown Tp. Bd of Sup’rs v. Gr. Media, 138 Pa. Commw. 157, 162, 587 A.2d 841 [1991] [stating that when a municipal governing body acts in an adjudicative role it must “avoid not only actual bias, but also even tie appearance of bias or impropriety”]; and Quintero v. City of Santa Ana, 114 Cal. App. 4th 810, 817, 7 Cal. Rptr. 3d 896 [2003] [totality of circumstances gave appearance of bias and unfairness sufficient to show probability of actual bias]). We disagree with the panel’s general conclusion, for reasons explained below.
In Kansas Racing Management, 244 Kan. 343, the appellants challenged the denial of a racetrack license by the Kansas Racing Commission. Among other things, appellants alleged a conflict of interest because of the relationship between a successful applicant and the attorney general. A subpart , of this argument and the court’s approach merit setting them forth in detail:
“Finally, we must also reject appellants’ allegation that, since the attorney general is the statutory head of the KBI, this relationship tainted the KBI investigations as well as the conduct of the two assistant attorneys general assigned as counsel to the Commission. We note that appellants rely on an ‘appearance of impropriety’ argument and present no facts to substantiate their allegations, specifically how the alleged bias influenced any of the five Commission members. Appellants have failed to recognize that the legislature specifically directed the attorney general to appoint ‘not more than two assistant attorneys general who shall be assigned to assist the commission in all matters.’ K.S.A. 1988 Supp. 74-8809. In addition, pursuant to the Kansas Code of Professional Responsibility, those assistant attorneys general who were appointed to assist the Commission are solely responsible to the Commission. We find this contention to be without merit.” (Emphasis added.) 244 Kan. at 361-62.
The Kansas Racing Management court rejected appellants’ claim that an appearance of impropriety existed. But its language fails to make clear whether the court rejected appellants’ legal standard of an appearance of impropriety (“appellants rely on an ‘appearance of impropriety’ argument”); or whether the court simply found insufficient evidence to support that standard (appellants “present no facts to substantiate their allegations, specifically how the al leged bias influenced any of the five Commission members.”); or whether the court determined something else, e.g., a specific standard higher than the mere appearance of impropriety (“alleged bias influenced” the Commission). Accordingly, we cannot agree with the Davenport 11 panel that Kansas Racing Management’s holding absolutely requires Davenport to prove a due process violation by showing that bias actually affected the Board’s decision, instead of merely showing the appearance of impropriety.
In the panel’s second case cited in support, Northglenn, 972 P.2d 707, we acknowledge that the Colorado Court of Appeals stated that “we do not agree that evidence of a potential bias on behalf of an agency’s staff member alone is sufficient to rebut the presumption of a board’s impartiality.” 972 P.2d at 711.
But neither Northglenn nor Kansas Racing Management squarely fits the facts of this case — a single attorney simultaneously acting as the Board’s legal advisor and as the Board’s advocate in the same matter. We instead find considerable parallels to the instant case in the Kansas “unacceptable dual roles” case of Coats v. U.S.D. No. 353, 233 Kan. 394, 662 P.2d 1279 (1983). It was not cited by the court in Kansas Racing Management or by the instant case’s panel or parties.
Leota Coats was a teacher who challenged the school board’s resolution expressing its intent to nonrenew her teaching contract for the upcoming school year. Coats exercised her right to dispute the Board’s intended action via a due process hearing under the Teacher Tenure Law, K.S.A. 72-5436 et seq. One provision of the Law, K.S.A. 72-5438, permitted the teacher and the school board to each select one person to serve on the hearing committee for the required “fair and impartial decision.” Those two persons then would designate a third person who served as the chairperson.
In Coats, a hearing committee was impaneled, and it ultimately recommended by a two-to-one vote that Coats’ contract be non-renewed. Although the school board was not statutorily required to follow the committee recommendation, it did so. Its earlier intent to nonrenew Coats’ contract became an actual nonrenewal.
Coats appealed the nonrenewal to the district court. She alleged, inter alia, a deprivation of due process because of the school board’s selection of its own attorney to serve on the hearing committee. The district court agreed she was denied a fair and impartial decision, and we unanimously affirmed. We concluded:
“[T]he school board’s appointment of its own attorney to the hearing committee violated the rule of fundamental fairness. In a situation such as this the school board attorney has a conflict of interest. He is the person who prepared all the documents and gave the school board its legal counsel in arriving at its decision to nonrenew the teacher. Further, he has an obvious financial interest in confirming the school board’s decision. Such a blatant defiance of due process cannot be countenanced. We hold the school board’s appointment of its own attorney to the hearing panel violated Ms. Coats’ right to due process.” (Emphasis added.) 233 Kan. at 403.
Although the Coats opinion is unclear, “all the documents” the school board’s attorney prepared apparently referred to those involving the board’s initial resolution of its intent to nonrenew. Similarly, while the opinion is unclear, the attorney’s giving “the school board its legal counsel in arriving at its decision to nonrenew the teacher” apparently referred to his advice regarding passage of the initial resolution of intent to nonrenew. As for counsel’s “obvious financial interest in confirming the school board’s decision,” the opinion implies that if he as a committee member did not later vote to recommend nonrenewal, then the board would terminate his general legal services contract with the district.
Coats does not mention the teacher making an evidentiary showing of actual bias, i.e., the attorney’s dual roles actually affecting the board’s decision. Nor, admittedly, does the opinion mention the teacher showing only the appearance of impropriety. Rather, the Coats court appears to draw conclusions that it believed were self-evident from the facts. First, the school board attorney “clearly” had a conflict of interest by initially giving legal counsel to the board so it could make a determination of intent to nonrenew but then later being asked to impartially make a recommendation on the nonrenewal issue as a committee member. See Leaming v. U.S.D. No. 214, 242 Kan. 743, 754, 750 P.2d 1041 (1988) (in discussing Coats, court concluded that “a school board attorney clearly has a conflict of interest”). Second, the Board’s attorney has an “obvious” financial interest in later agreeing with the Board’s initial resolution.
The Learning court applied Coats. It concluded, however, that the school board’s appointment of a teacher due process hearing committee member, while a treasurer for the school board and a local attorney, did not violate due process. That is because his treasurer’s duty was limited to transferring funds, he received no pay for his treasurer services, and he was not an attorney or legal ad-visor for the school board. The Coats standard has also been applied outside the education field. See Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 383-84, 673 P.2d 1126 (1983) (KDHE investigation and hearing on whether Pork Motel violated state environmental pollution laws).
Even before this court’s 1983 decision in Coats, we criticized an attorney’s dual roles in the same matter: first as quasi-judicial officer, then as advocate. In Powers v. State Department of Social Welfare, 208 Kan. 605, 493 P.2d 590 (1972), the State Department of Social Welfare appointed a lawyer from its own legal staff as the referee to preside over a “fair hearing” to hear Powers’ appeal from denial of welfare benefits. The referee eventually recommended continued denial because, due to Powers’ refusal to have a medical examination, there was insufficient evidence to conclude whether she was disabled. The Department then appointed the same lawyer to represent it at the district court when Powers appealed there.
Powers’ appeal was denied as a matter of law because of her undisputed failure to submit to a medical examination in accordance with regulations, as the referee had basically found. Nevertheless, the court stated that if her appeal had involved issues of fact, “grave issues of due process of law may well have justified a reversal of this case and a new trial.” 208 Kan. at 619. The Powers court found the attorney’s dual roles “highly improper” and his role as advocate was “clearly in conflict” with his former quasi-judicial position. 208 Kan. at 619. It then expressed the depth of its distaste for these particular dual roles: “We wish to make it clear that in the future a procedure which permits a referee or other quasi-judicial officer to represent a party in subsequent proceedings in the same case will not be sanctioned by this court.” (Em phasis added.) 208 Kan. at 620; see Goertzen v. State Department of Social & Rehabilitation Services, 218 Kan. 313, 321, 543 P.2d 996 (1975) (citing Powers to direct that no one person could serve both these roles).
Although the Coats court in 1983 did not cite Withrow, 421 U.S. 35, Coats’ rationale is consistent with the following statement from Withrow:
“Not only is a biased decisionmaker constitutionally unacceptable but ‘our system of law has always endeavored to prevent even the probability of unfairness.’ [Citation omitted.] In pursuit of this end, various situations have been identified in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” (Emphasis added.) 421 U.S. at 47.
This statement from Withrow remains a valid basis for considering the presence of biased decisionmaking. Just last year it served as the principal foundation for the United States’ Supreme Court’s decision in Caperton, 556 U.S. 868. There, on a 3-2 vote, the West Virginia Supreme Court reversed Caperton’s $50 million jury verdict against Massey and its affiliates. Caperton claimed a violation of due process because one justice in the majority had denied a recusal motion against him. More particularly, the motion alleged that the justice had received an extraordinarily large campaign contribution “from, and through the efforts of, the board chairman and principal officer” of Massey. 556 U.S. at 872. The Supreme Court essentially agreed, holding:
“Under our precedents there are objective standards that require recusal when ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’ Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975). Applying those precedents, we find that, in all the circumstances of this case, due process requires recusal.” 556 U.S. at 872.
The Caperton Court made clear that it was not “determin[ing] whether there was actual bias” by the West Virginia justice. 556 U.S. at 882. It was instead concluding under the case’s extreme facts that “the probability of actual bias rises to an unconstitutional level.” 556 U.S. at 887; see 556 U.S. at 890 (Roberts, C.J., joined by Scalia, Thomas, and Alito, JJ., dissenting) (“Today... the Court enlists the Due Process Clause to overturn a judge’s failure to recuse because of a probability of bias.’ ”).
In Coats, the hearing committee’s two-to-one decision statutorily had only been a recommendation to the school board, which reserved final decisionmaking authority. Accordingly, Coats’ ability to show that the attorney’s dual roles had prejudiced her by affecting the Board’s nonrenewal decision was complicated by the fact that the Board could have ultimately rejected the committee recommendation and voted to renew her contract. Indeed, the opinion appears to assume the attorney had been one of the two committee members to recommend nonrenewal. However, this fact had little, if any, impact on the Coats court decision: “Even though it only results in a recommendation to the school board, the due process hearing is an integral part of the actual decision regarding nonrenewal. Fundamental fairness is thus necessarily applicable.” 233 Kan. at 403.
This factual scenario can no longer exist in teacher due process contexts. In 1984, the year after Coats, the legislature amended the appropriate statute to make a unanimous recommendation by the hearing committee binding on the school board. And then in 1991, the legislature again amended the statute to make all decisions by the hearing committee, whether unanimous or not, binding on the board. Finally, in 1992, the legislature once again amended it to replace the hearing committee with a single hearing officer. See U.S.D. No. 500 v. Robinson, 262 Kan. 357, 360, 940 P.2d 1 (1997).
The Robinson court recognized that the school board originally functioned in a dual and conflicting capacity by acting “as its own advocate at the due process hearing and the reviewer of its own decision after the hearing committee made its own recommendation.” 262 Kan. at 363. The court acknowledged that the 1991 amendment — placing the authority to make the final good cause determination in an independent hearing committee (hearing officer after the 1992 amendment) — eliminated the dual roles and the board’s conflict. 262 Kan. at 363.
Based upon this review of Kansas law, we conclude that while Kansas courts and the legislature have due process concerns about dual roles, the mere appearance of impropriety is insufficient to constitute a due process violation. See, e.g., Leaming, 242 Kan. at 753-54 (under facts of case, the school board’s appointment of teacher due process hearing committee member, although treasurer for the board and a local attorney, did not violate teacher’s due process; committee member received no treasurer’s pay and was not attorney or legal advisor for school board); Pork Motel, 234 Kan. at 384 (under facts of case, KDHE engineer’s service as one of two KDHE hearing officers for certain proceeding did not violate due process; engineer was not connected with KDHE’s investigation and decision to institute administrative proceedings against Pork Motel; his function at hearing was more of technical advisor to other hearing officer who was an outside attorney).
Rather, we clarify the standard and rationale inherent in Coats (where the attorney’s conflict of interest was clear and his financial interest in confirming the Board’s decision obvious) and in its progeny. That is, due process is violated when, under all the circumstances of the case, the “probable risk of actual bias [is] too high to be constitutionally tolerable.” Withrow, 421 U.S. at 47. As the Supreme Court recently stated in Caperton: “Under our precedents there are objective standards that require recusal when ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable’” and “in all the circumstances of this case, due process requires recusal.” 556 U.S. at 872.
Now that we have established the appropriate standard, we apply it to the facts of this case. We begin by observing that Kassebaum apparently has represented the Board in virtually all Davenport matters since Davenport’s first damages application in 2000 and continuing through today, 10 years later. We conclude that under all the circumstances of this case, Kassebaum’s multiple roles make the probable risk of actual bias to Davenport too high to be constitutionally tolerable.
In Kassebaum’s first role, as the Board’s primary, if not sole legal advisor, he drafted the letter rejecting Davenport’s initial application for damages; advised the Board on how to schedule and conduct the damages hearing upon remand from the Court of Appeals in Davenport I; recommended the appraiser that the Board eventually hired as its sole expert witness for its damages hearing; instructed the Board on how to proceed after its damages hearing; compiled the three individual damages figures from all commissioners and presented them at a Board meeting; advised the commissioners to agree on one damages figure; received the one damages figure from the Board; and arguably served only as scribe in drafting the Board’s written decision.
In Kassebaum’s second role, as the Board’s sole advocate, he represented the Board at all court proceedings against Davenport. These included two appearances in the district court (including an evidentiary damages hearing), two appearances in the Court of Appeals, and one in this court. Consistent with this role, he also asserted the attorney-client privilege in an attempt to prevent Davenport’s unrestricted depositions of the three commissioners. More important, during the Board’s own damages hearing, he commented on and argued against Davenport’s evidence; cross-examined both of Davenport’s expert witnesses; and called witnesses to testify and directly examined them, including the Board’s damages expert.
We also note that some of Kassebaum’s functions in these two conflicting roles seep into a third role: adjudicative. Before the damages hearing, Kassebaum individually transported two of the three commissioners, in Davenport’s absence, to view the roads at the heart of the damages dispute; advised the Board, in Davenport’s absence, that appraiser Sundgren should be hired because Kassebaum thought him credible; and was physically present, again while Davenport was absent, during some of the Board’s discussions about Davenport damages. Moreover, he arguably served as more than a scribe in drafting the Board’s written decision.
Most persuasive in Davenport’s estabhshing “the probable risk of actual bias” by Kassebaum’s multiple roles is the amount of the Board’s ultimate damages award and the sequence of events leading to its determination. While in the Board’s employ, Kassebaum recommended Sundgren as the credible appraiser to serve as the Board’s expert witness on damages. The Board then hired Sundgren, who testified at the Board’s damages hearing under Kasse baum’s direct examination. These combined factors may have been why Commissioner Revere believed that Sundgren and Kassebaum both represented the Board at the hearing. Sundgren’s testimony revealed he strongly disagreed with the Davenport’s experts’ damages calculations of $382,965. Rather, he opined the damages were only $4,050, almost 100 times less. When Kassebaum examined the three commissioners’ individually different damages awards, he advised them to discuss the matter and agree on one final award. They later decided upon damages of $4,050: the amount, to the dollar, testified to by their expert retained on Kassebaum’s recommendation. Moreover, it is undisputed that Kassebaum had at least been in the same room at some of the five meetings where the Board had discussed Davenport’s damages. See Loewen v. U.S.D. No. 411, 15 Kan. App. 2d 612, 621, 813 P.2d 385 (1991) (despite testimony indicating school board made an independent decision because nonmembers present were not asked for their opinions, court held presence of “antagonistic or unnecessaiy parties to the executive session ... smacks of unfairness to the teacher whose rights are being considered”). Finally, Commissioner Miller’s testimony suggests that some of the evidence may have been discussed with Kassebaum.
Additionally, after receiving the final damages figure from the Board, Kassebaum then drafted the Board’s report without the knowledge of, or input from, Davenport. The evidence from commissioners is unclear on whether Kassebaum only recorded the Board’s findings or wrote some of his own. We observe that it has been held to be a denial of due process for a prosecuting attorney to draft ex parte the findings of fact and conclusions of a commission because that practice constitutes an impermissible commingling of prosecutorial and adjudicative roles. See, e.g., Georgia Gulf Corp. v. Bd. of Ethics, 694 So. 2d 173, 176 (La. 1997) (discussing Allen v. State Bd. of Dentistry, 543 So. 2d 908, 915-16 [La. 1989]). Even given the Board’s position on appeal that Kassebaum was merely a scribe, i.e., he provided no input of his own into the report, we further observe that this procedure followed by Kassebaum and the Board is atypical of Kansas requirements, at least in the district courts. More specifically, a district court may announce its holding to all parties and order one party or its counsel to journalize the decision. That party prepares the journal entry and submits it to the opposing party under Supreme Court Rule 170 (2009 Kan. Ct. Annot. 245) (relating to district courts) which has 10 days in which to object. If counsel cannot agree, then if necessary the court settles the issue by hearing with notice to all parties and counsel.
In short, the Board requested Kassebaum to advocate/investigate on the amount of damages (if any); to advise on legal procedures; and arguably to also help adjudicate, particularly with the drafting of the order. In our view, Kassebaum was improperly asked to be, if not “A Man for All Seasons,” then a man for too many seasons. As in Powers, “the court wishes to make it clear that it is not questioning the integrity” of Kassebaum. 208 Kan. at 619-20. Rather, we disagree with the various roles he was asked to play in the Board’s Davenport production.
Given that our holding is based upon case law from the United States Supreme Court and Kansas, we merely note, but do not discuss, Davenport’s cited cases from other jurisdictions. See, e.g., Matter of Robson, 575 P.2d 771 (Alaska 1978); Hamilton v. City of Mesa, 185 Ariz. 420, 916 P.2d 1136 (Ariz. App. 1996); Morongo Band of Mission Indians v. State Water Resources Control Bd., 45 Cal. 4th 731, 88 Cal. Rptr. 3d 610, 199 P.3d 1142 (2009); Newtown Tp. Bd. of Sup'rs v. Gr. Media, 138 Pa. Commw. 157, 587 A.2d 841 (1991); Horn v. Township of Hilltowm, 461 Pa. 745, 337 A.2d 858 (1975); Nova Services, Inc. v. Village of Saukville, 211 Wis. 2d 691, 565 N.W.2d 283 (Wis. App. 1997).
Accordingly, we reverse the decisions of the Court of Appeals, the district court, and the Board. The case is remanded to the Board with directions for further damages proceedings consistent with this opinion.
Beier, J., not participating.
Robert W. Fairchild, District Judge, assigned. | [
-108,
-18,
-15,
-115,
77,
98,
58,
-52,
65,
-77,
114,
83,
111,
-94,
21,
111,
-6,
61,
68,
104,
-63,
-74,
87,
-61,
-74,
-70,
-5,
85,
-69,
126,
101,
-41,
73,
-16,
-54,
21,
6,
-94,
-49,
80,
-114,
7,
-117,
109,
-39,
64,
-72,
43,
86,
15,
-79,
-84,
-5,
60,
24,
67,
9,
40,
91,
-85,
-127,
-80,
-70,
-121,
121,
18,
-95,
20,
-98,
3,
-40,
46,
-112,
57,
0,
-24,
82,
-74,
-122,
116,
1,
-103,
9,
44,
98,
49,
28,
-49,
-32,
-87,
14,
93,
15,
-26,
-103,
72,
67,
33,
-106,
-97,
116,
118,
70,
-2,
-17,
4,
-99,
108,
-125,
-50,
-112,
-79,
79,
36,
-104,
73,
-17,
-121,
20,
117,
-52,
-26,
93,
100,
18,
27,
-50,
-108
] |
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinaiy Administrator against the respondent, Michael A. Millett, of Overland Park, an attorney admitted to the practice of law in Kansas in 1997.
On October 26, 2009, 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 November 18, 2009. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on December 16,2009, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 4.3 (2009 Kan. Ct. R. Annot. 572) (dealing with unrepresented person), 8.4(b) (2009 Kan. Ct. R. Annot. 602) (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 the 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
“2. Detective Timothy Shavers with the Johnson County Sheriffs Department was assigned to the investigations division. As part of his duties assigned to the investigations division, Detective Shavers conducted investigations of electronic solicitation.
“3. K.S.A. 21-3523 prohibits electronic solicitation. That statute provides, in pertinent part, as follows:
‘(a) Electronic solicitation is, by means of communication conducted through the telephone, internet, or by other electronic means:
(1) Enticing or soliciting a person whom the offender believes to be a child 14 or more years of age but less than 16 years of age to commit or submit to an unlawful sexual act; or
‘(b) Electronic solicitation as described in subsection (a)(1) is a severity level 3 person felony. . . .
‘(c) For the purposes of this section, “communication conducted through the internet or by other electronic means” includes but is not limited to email, chatroom chats and text messaging/
“4. In order to facilitate his investigations, Detective Shavers developed an online identity, Brandi Holman, a 14 year old female. Detective Shavers included a photograph of a young woman in his online profile.
“5. For some time, Detective Shavers, as ‘Brandi Holman,’ conversed with Matthew Sewell in an online chat room. During the conversations, Mr. Sewell identified himself by name and, eventually, solicited sex from ‘Ms. Holman.’ Mr. Sewell requested to meet ‘Ms. Holman,’ for a sexual encounter. ‘Ms. Holman’ agreed to meet Mr. Sewell on March 22, 2007, at the Hardee’s Restaurant in Olathe, Johnson County, Kansas. Mr. Sewell described his vehicle and told ‘Ms. Holman’ he would back in his vehicle in a parking spot, so ‘Ms. Holman’ would be able to identify Mr. Sewell.
“6. After Matthew Sewell arrived at the Hardee’s Restaurant on March 22, 2007, detectives from the Johnson County Sheriffs Department arrested Mr. Sewell.
“7. Following the arrest, the detectives conducted an interview of Matthew Sewell. Mr. Sewell told the detectives that he did not know why he was being arrested. Mr. Sewell told the detectives that he was at the Hardee’s Restaurant because his brother, John Sewell, [Footnote: John Sewell, a member of the Army National Guard, was stationed in Idaho from December, 2006, to March 25,2007. In the early morning hours of March 25,2007, John Sewell was arrested for driving under the influence of alcohol in Idaho. Coincidentally, later, on March 25,2007, John Sewell was transferred to Pennsylvania for training. John Sewell remained in Pennsylvania until some time in June, 2007. In June, 2007, John Sewell was transferred to Oklahoma.] called him and asked him to meet him at the restaurant. Matthew Sewell further explained that John Sewell owed him $500.00 and John Sewell agreed to repay the debt that day at that location.
“8. The Johnson County District Attorney charged Mr. Sewell with electronic solicitation of a child, in violation of K.S.A. 21-3523(a)(l), a person, level 3 felony, Johnson County District Court case number 07CR0789.
“9. Matthew Sewell retained the Respondent to represent him in the criminal case. Thereafter, on March 29, 2007, the Respondent entered his appearance in behalf of Matthew Sewell in the Johnson County District Court case.
“10. The representation of Matthew Sewell was the first time the Respondent represented a person charged with felony sexual offense. Prior to that time, the Respondent’s practice primarily included misdemeanor criminal appointments, care and treatment appointments, divorce cases, and construction law cases.
“11. The Court scheduled Matthew Sewell’s trial for August 27, 2007.
“12. In August, 2007, Matthew Sewell spoke with John Sewell by telephone regarding his arrest. Matthew Sewell told John Sewell that he was his only chance. Matthew Sewell told John Sewell that if he would make a statement to the law enforcement officers that he had engaged in the online conversations with 'Brandi Holman’ and that he played a practical joke on Matthew Sewell by having him arrive at Hardee’s that Matthew Sewell would not be convicted and that John Sewell would not get in any trouble.
“13. John Sewell’s and Matthew Sewell’s parents were upset by the situation that Matthew Sewell found himself in. John Sewell spoke with his parents regarding the predicament that Matthew Sewell was in.
“14. John Sewell returned to the Kansas City area for a visit at his parents’ request. While John Sewell was in the Kansas City area for a visit, he agreed to meet with the Respondent, be interviewed by law enforcement officers, and inform the law enforcement officers that he engaged in the online chat and was playing a practical joke on his brother, Matthew Sewell.
“15. On August 21, 2007, Matthew Sewell drove John Sewell to the Respondent’s office for a meeting. [Footnote: The Respondent’s testimony and John Sewell’s testimony was inconsistent on many issues. The Hearing Panel was in die position to observe the witnesses testify. Both the Respondent and John Sewell have credibility problems. However, the Hearing Panel concludes that the Respondent appears to be more credible. Accordingly, the Hearing Panel has discounted John Sewell’s testimony on some issues.] During the meeting, the Respondent provided John Sewell with legal advice by advising him that he could not be charged with a crime because he had not gone to the agreed upon location, the Hardee’s Restaurant in Olathe, Kansas.
“16. At the conclusion of the meeting, the Respondent called Tim Keck, an Assistant District Attorney, and stated that John Sewell wanted to make a statement to the police regarding the charges pending against Matthew Sewell. The Respondent told Mr. Keck that the interview of John Sewell was conditioned upon the Respondent sitting in on the interview. Mr. Keck provided John Sewell’s contact information to Detective Shavers and Detective Chris Evans. As a result, a detective contacted John Sewell and scheduled an interview for the following day. John Sewell told the detective that he would be appearing with his attorney, the Respondent.
“17. On August 22, 2007, Matthew Sewell drove John Sewell to the Johnson County Sheriff s Department. Matthew Sewell met the Respondent in the parking lot. The Respondent accompanied Matthew Sewell to the interview room. John Sewell believed that the Respondent was accompanying him to the interview because he was representing him.
“18. Detectives Shavers and Evans were present in the interview room with John Sewell and the Respondent. Because of a previous failure with the interview room’s audioMdeo recording system, the detectives placed a portable audio recording device on the table. The detectives turned on the portable recorder and began recording the interview. Additionally, the interview room’s audioMdeo recording system was also initiated and recording the interview.
“19. While the detectives did not specifically state that they were recording the interview, the portable audio recording device was placed on the table in front of the Respondent and John Sewell and the interview was taking place in an interview room which was equipped with an audioMdeo recording system.
“20. At the outset of the interview, the detectives explained to John Sewell that he was not in custody and could stop the interview at any time. The detectives explained that no matter what he said, he would not be arrested that day. Despite the fact that he was not in custody, the detectives also informed John Sewell of his rights pursuant to Miranda v. Arizona [,384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)]. John Sewell agreed to waive his rights and answer the detectives’ questions.
“21. The Respondent stated that he was not appearing as John Sewell’s attorney, but rather as Matthew Sewell’s attorney. The detectives told the Respondent that he would not be able to remain in the interview if he was not John Sewell’s attorney. The Respondent told the detectives that if a question arose during the interview that he would answer the question as an attorney. The Respondent informed the detectives that the interview of John Sewell was conditioned upon the Respondent being allowed to be present during the interview.
“22. The detectives left the room to discuss the situation with their supervisors. While the detectives were not present in the room, the Respondent again told John Sewell that he was not representing him. The Respondent told John Sewell:
‘But as I told you if you had questions or if there was anything . . . you know I could answer questions for you ... if I thought there was gonna be an issue ... if I thought they were trying to take you down some road, I was gonna let you know.’
“23. The Respondent noticed that the portable audio recording device was recording his conversation with John Sewell. The Respondent picked up the portable recording device, turned it off, rewound the tape, and set the portable recording device back on the table. The Respondent picked up the portable recording device a second time and, again, placed it back on the table. The Respondent picked up the portable recording device a third time, rewound the tape again, set the portable recording device back on the table, and recorded over some portion of the previous conversation.
“24. From an observation room, one of the detectives observed the Respondent when he repeatedly picked up the portable audio recording device.
“25. The detectives returned to the room, allowed the Respondent to remain in the interview room, and began asking John Sewell substantive questions regarding the online chat.
“26. After questioning John Sewell regarding the online chat, the detectives confronted him with information regarding his arrest in Idaho on March 25,2007. At that time, John Sewell declined to answer any more questions and attempted to terminate the interview. The Respondent encouraged John Sewell to continue to answer questions posed by the detectives on several occasions after John Sewell indicated that he wished to terminate the interview. The Respondent repeatedly told John Sewell to remember why he was there. John Sewell agreed to answer questions that did not relate to Idaho. The Respondent attempted to mediate the interview between John Sewell and the detectives. The Respondent stated that John Sewell could not be charged with a crime because he did not travel to the agreed upon location. The Respondent also debated with the detectives regarding the elements of the crime. The detectives did not question John Sewell further.
“27. The Respondent briefly met with John Sewell following the interview by the detectives.
“28. The next day, August 23, 2007, John Sewell contacted Detectives Shavers and Evans. John Sewell asked to meet with the detectives without the Respondent. John Sewell and the detectives met in the detective’s car. At that time, John Sewell told the detectives that he did not participate in the online chats and that he had lied the previous day. John Sewell was concerned that he would be charged with a crime that he did not commit. John Sewell was also concerned that he might not get to be deployed to Kuwait as planned.
“29. On August 24, 2007, the Johnson County District Attorney charged John Sewell with obstruction of official duty, in violation of K.S.A. 21-3808(b)(l), a nonperson, level 9 felony.
“30. John Sewell retained Patrick Flannigan to represent him in the pending criminal case. John Sewell agreed to cooperate with the Sheriff s department.
“31. On September 5, 2007, John Sewell, along with his attorney Patrick Flannigan, met with the detectives. At that time, John Sewell provided a more detailed statement.
“32. On September 6, 2007, Detectives Shavers and Evans met with the Respondent. The detectives questioned the Respondent about how the recording on the portable audio recording device had been tampered with. Initially, the Respondent told the detectives that John Sewell stopped the recorder and taped over the previously recorded statements.
“33. The detectives informed the Respondent that in addition to the portable audio recording device, the interview room was equipped with an audio/video recording system and that they had a video which established that the Respondent had stopped the tape and recorded over the statements.
“34. After being confronted with the existence of a videotape recording, the Respondent admitted that he stopped the tape of the portable audio recording device, rewound the tape, and recorded over statements.
“35. On December 10, 2007, the Johnson County District Attorney charged the Respondent with obstruction of official duty, in violation of K.S.A. 21-3808(b)(1), a nonperson, level 9 felony.
“36. John Sewell testified in the criminal cases against Matthew Sewell and the Respondent. In exchange for his cooperation, on December 8, 2008, the Johnson County District Attorney dismissed the pending charge of felony obstruction against John Sewell.
“37. Following a preliminaiy hearing, the Court bound the Respondent over for trial. Thereafter, on April 3, 2009, the Respondent entered into a plea agreement. The Respondent entered a plea of guilty to attempted obstruction of official duty, in violation of K.S.A. 21-3808(b)(2), a class B misdmeanor.
“38. At the plea hearing, the prosecutor provided a factual statement to support the conviction, as follows:
‘MR. STEIN: . . . Judge, the State would present evidence and testimony that on August 22nd, 2007, here in Johnson County, Kansas, the defendant, Michael Millett, accompanied an individual by the name of John Sewell to the Johnson County Sheriff s Office investigations building.
‘John Sewell is the brother of Mathew [sic] Sewell who at the time on August 22nd, 2007, was a client of Michael Millett.
‘Judge, Detectives Shavers and Evans with the Johnson County Sheriffs Department were investigating a crime allegedly committed by Matthew Sew-ell, the client of Michael Millett.
‘During the interview of John Sewell, which is the purpose for Michael Millett and John Sewell being in the investigations building, detectives temporarily leave [sic] the interview room.
‘Michael Millett stopped the audio recording being taken by the Detective, rewound the recording, thereby, deleting some of the conversation that had been recorded by Detectives.
‘Mr. Millett stopped the tape, which in turn there was no recording of the conversation that he had with John Sewell.
‘Although Mr. Millett attempted to substantially increase the burden on the Detectives and their collection of witness’ statements during the investigation of the crime, Mr. Millett failed in his attempt because there was an additional audio and videotape recording which captured the entire interview in that investigation room on August 22, 2007.
‘THE COURT: Well, do you agree with the factual statement that has been articulated by Mr. Stein?
‘THE DEFENDANT: Yes, Your Honor.
‘THE COURT: This is a Class B misdemeanor with a maximum punishment of six months in the county jail; do you understand that?
‘THE DEFENDANT: Yes, Your Honor.
‘THE COURT: Do you understand the length of your sentence, whether you receive probation, as well as the terms and conditions of probation, will be up to the Court’s discretion?
‘THE DEFENDANT: Yes, Your Honor.’
“39. During sentencing, the Respondent stated:
‘. . . I did, however, rewind a tape. I don’t know why I did it, but I did it.
1 know I made some mistakes, Your Honor. Now, I’m looking at this, I had a conflict of interest. I know I should have made sure that John Sewell had another attorney.
T know I should have never put myself in a position to be answering these questions or giving him legal advice, and I know that I should have never touched that tape.
T take being a lawyer and being honest seriously. I in no way meant to bring any type of dishonor or disgrace to the legal professions by my actions.’
“The Court sentenced the Respondent to a jail sentence, but placed the Respondent on probation. On October 1, 2009, the Respondent successfully completed the probation and was discharged from any further obligation with regard to the criminal case.
“40. On October 26, 2009, the Deputy Disciplinary Administrator filed a Formal Complaint. The Respondent answered and admitted that he violated certain rules of professional conduct. However, the Respondent did not specifically state which rules that he had violated.
“CONCLUSIONS OF LAW
“1. In the Formal Complaint, the Deputy Disciplinary Administrator alleged that the Respondent violated KRPC 8.4(b), KRPC 8.4(c), KRPC 8.4(d), and KRPC 8.4(g). [Footnote: The Hearing Panel concludes that KRPC 8.4(g) is a catch-all provision that does not apply in this case because the Respondent’s misconduct amounts to violations of more specific rules.] During the Respondent’s criminal proceedings and during the hearing on the Formal Complaint, the Respondent admitted that he engaged in a ‘conflict of interest’ when he provided advice to John Sewell and when he failed to ensure that John Sewell had separate legal counsel.
“2. Generally, the ‘conflict of interest’ rules are found at KRPC 1.7, KRPC 1.8, KRPC 1.9, and KRPC 1.10. The Hearing Panel has reviewed those rules and has found that they do not apply in this situation. However, the Hearing Panel has also reviewed KRPC 4.3. In the Hearing Panel’s view, KRPC 4.3 is the only additional violation that may apply in this case.
“3. It is appropriate to consider violations not specifically included in the Formal Complaint under certain circumstances. The law in this regard was thoroughly examined in State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984), as follows:
‘Supreme Court Rule 211(b) (232 Kan. clxvi), requires the formal complaint in a disciplinary proceeding to be sufficiently clear and specific to inform the respondent of the alleged misconduct.
‘The seminal decision regarding the applicability of the due process clause to lawyer disciplinary proceedings is found in In re Ruffalo, [390 U.S. 544, 20 L. Ed. 2d 117, 88 S. Ct. 1222, reh. denied 391 U.S. 961 (1968)]. There the United States Supreme Court held that a lawyer charged with misconduct in lawyer disciplinary proceedings is entitled to procedural due process, and that due process includes fair notice of the charges sufficient to inform and provide a meaningful opportunity for explanation and defense.
‘Decisions subsequent to Buffalo have refined the concept of due process as it applies to lawyer disciplinary hearings, and suggest that the notice to be provided be more in the nature of that provided in civil cases. The weight of authority appears to be that, unlike due process provided in criminal actions, there are no stringent or technical requirements in setting forth allegations or descriptions of alleged offenses.... Due process requires only that the charges must be sufficiently clear and specific to inform the attorney of the misconduct charged, but the state is not required to plead specific rules, since it is the factual allegations against which the attorney must defend. . . . However, if specific rales are pled, the state is thereafter limited to such specific offenses.
‘Subsequent to the Buffab decision, tire due process requirements in lawyer disciplinary proceedings have been given exhaustive treatment by this court. In State v. Turner, 217 Kan. 574, 538 P.2d 966 (1975), 87 A.L.R.3d 337, the court summarized prior Kansas and federal precedent on the question, including Buffalo, and held in accordance with established precedent that the state need not set forth in its complaint the specific disciplinary rales allegedly violated . . . , nor is it required to plead specific allegations of misconduct. . . . What is required was simply stated therein:
‘We must conclude that where the facts in connection with the charge are clearly set out in the complaint a respondent is put on notice as to what ethical violations may arise therefrom. . . .
‘‘It is not incumbent on the board to notify the respondent of charges of specific acts of misconduct as long as proper notice is given of the basic factual situation out of which the charges might result.” ’
235 Kan. at 458-59 (citations omitted). Thus, only when the Formal Complaint alleges facts that would support findings of violations of additional rales, will considering additional violations be allowed. In this case, the Formal Complaint includes the following language:
‘5. . . . The Respondent advised John Sewell that he could not get into trouble if he told tire investigators that he, and not his brother Matthew, engaged in the electronic solicitation as a practical joke against his brother because he was never at the crime scene.
‘6. John Sewell believed that the Respondent was acting as his attorney by giving him legal advice and by accompanying him to the law enforcement interview on August 22, 2007.
‘7. . . . John Sewell advised the detective that he and his attorney, the Respondent, would meet him at the Sheriffs Office. Later that day, the Respondent and John Sewell met detectives Shavers and Chris Evans forthe interview.
‘9. . . . The Respondent told Detective Shavers that he was the attorney for Matthew Sewell, and not John Sewell, and he was present only to represent Matthew. . . .
TO. The Respondent advised Detective Shavers that he was present in a legal capacity for Matthew Sewell and had informed John Sewell that if he had questions during the interview, he would answer them as an attorney. . . .
Tl. While the Respondent and John Sewell were alone in the interview room, the Respondent told John Sewell “But as I told you if you had questions or if there was anything . . . you know I could answer questions for you ... if I thought there was gonna be an issue ... if I thought they were trying to take you down some road, I was gonna let you know.
The Hearing Panel concludes that the Formal Complaint contains sufficient facts to support a finding that the Respondent violated KRPC 4.3. Thus, in the opinion of the Hearing Panel, the additional violation of KRPC 4.3 should be considered.
“4. KRPC 4.3 provides:
Tn dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.’
Clearly John Sewell misunderstood the Respondent’s role in this matter. The Respondent knew or should have known of John Sewell’s misunderstanding based upon the circumstances. The Respondent did not make reasonable efforts to correct the misunderstanding until it was too late. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 4.3.
“5. Tt 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 entered a plea of guilty to attempted obstruction of an official duty, a class B misdemeanor. A conviction for attempting to obstruct a police officer’s official duty reflects adversely on the Respondent’s honesty, trustworthiness, and fitness as a lawyer in other respects. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(b).
“6. Tt 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 falsely stated to the detectives that he did not rewind the tape, but rather, that John Sewell had rewound the tape and taped over the conversation. Because the Respondent made a false statement to the detectives, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).
“7. Tt is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he rewound the tape, when he falsely stated to the police officers that John Sewell had rewound the tape, and when he provided John Sewell legal advice when his interests were in conflict with Matthew Sewell's interests. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“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 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.
“Duty Violated. The Respondent violated his duty to the legal profession and to the public to maintain his personal integrity.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to the legal profession and the legal system.
“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 the following aggravating factors present:
“Dishonest or Selfish Motive. The Respondent engaged in dishonest conduct when he provided a false statement to the police officers that John SeweE had rewound the tape and taped over the conversation.
“Substantial Experience in the Practice of Law. The Respondent has substantial experience in the practice of law as he was admitted to practice in 1997.
“Illegal Conduct. The Respondent entered a plea of guilty to attempted obstruction of official duty.
“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 foEowing mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been discipEned.
“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. Based upon a number of letters received by the Hearing Panel, the Respondent enjoys a good reputation among his peers in the Johnson County bar.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the foEowing Standards:
‘4.32 Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.
‘5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.
‘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, the public, or the legal system.’
“RECOMMENDATION
“The Deputy Disciplinary Administrator made two separate recommendations. First, if the Hearing Panel were to find that the Respondent conspired with Matthew Sewell and John Sewell or knew or encouraged John Sewell to provide false information to the police officers, then the Deputy Disciplinary Administrator recommended that the Respondent be disbarred. On the other hand, if the Hearing Panel concludes that the Respondent did not engage in the fraud, but rather, only the remaining misconduct, then the Respondent recommended that the Respondent be indefinitely suspended from the practice of law.
“The Respondent argued that the misconduct warranted censure and that the censure be published in the Kansas Reports.
“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 30 days. The Hearing Panel further recommends that the Respondent not be required to undergo a reinstatement hearing pursuant to Kan. Sup. Ct. R. 219.
“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 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 Loher, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 321). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). The evidence before the hearing panel establishes the charged miscon duct of the respondent by clear and convincing evidence and supports the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions.
The panel recommends that the respondent be suspended from the practice of law for 30 days, after which he should he reinstated without a hearing pursuant to Supreme Court Rule 219 (2009 Kan. Ct. R. Annot. 376). The Disciplinary Administrator’s office argued for an indefinite suspension. “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 by the panel or the Disciplinary Administrator.” Supreme Court Rule 212(f) (2009 Kan. Ct. R. Annot. 338).
The respondent’s lack of any prior disciplinary record and his good reputation among his peers in the Johnson County bar convince us that an indefinite suspension is not the appropriate sanction. On the other hand, the respondent’s intentional and dishonest conduct, especially the deceitful act of implicating another for the crime that he had committed, cannot be condoned, even if an isolated incident. Accordingly, we believe the appropriate sanction in this case is a 2-year suspension from the practice of law, to commence upon the filing of this opinion.
It Is Therefore Ordered that Michael A. Millett be suspended from the practice of law in the state of Kansas for a period of 2 years, effective this date, in accordance with Supreme Court Rule 203(a)(2) (2009 Kan. Ct. R. Annot. 272).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361), and in the event the respondent would seek reinstatement, he shall comply with Supreme Court 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.
Patricia Macke Dick, District Judge, assigned. | [
-112,
-24,
-18,
-35,
10,
96,
-66,
34,
91,
-13,
119,
83,
-19,
-54,
-115,
115,
-46,
109,
17,
104,
-47,
-74,
127,
-32,
100,
-5,
-15,
-41,
-65,
95,
-28,
-35,
73,
48,
-118,
-107,
66,
74,
-91,
-34,
-118,
7,
9,
-48,
83,
67,
-90,
105,
19,
75,
53,
-81,
-13,
106,
20,
-61,
41,
104,
-33,
-84,
-47,
17,
-5,
-107,
125,
18,
-94,
37,
-100,
3,
-48,
63,
-104,
57,
40,
-24,
115,
-78,
2,
-28,
15,
-23,
-119,
114,
98,
39,
-88,
-121,
-92,
-116,
78,
-100,
-97,
-90,
-99,
105,
105,
-115,
-106,
-97,
116,
20,
43,
-4,
99,
-124,
23,
108,
-118,
-53,
-128,
-109,
-49,
36,
-116,
58,
-21,
-92,
20,
113,
-126,
-26,
87,
-42,
50,
31,
-82,
-75
] |
The opinion of the court was delivered by
Rosen, J.:
Joshua Stone was convicted of one count of aggravated indecent liberties with a child. On appeal, he argues that the prosecutor s remarks during closing argument amounted to prosecutorial misconduct denying him a fair trial. He also argues that a tape recording of his interrogation should not have been admitted into evidence.
Stone was tried on one count of aggravated indecent solicitation of a child; two counts of aggravated indecent liberties with a child, one of which alleged that he lewdly touched the victim and the other of which alleged that he submitted to her touching; and one count of criminal threat. The victim, 9-year-old A.L., spent the night of December 19, 2006, at the apartment of her mother s cousin. Stone is the cousin’s stepbrother and he was temporarily living there. A.L.’s mother and Stone had briefly been in a relationship so he and A.L. knew each other. A.L. alleged that Stone woke her up, took her into the living room where he slept on a futon sofa, instructed her to masturbate him, put his hand on her “crotch,” and then threatened to kill her if she told anyone.
The next day, A.L. did tell a 17-year-old babysitter. The babysitter told Stone’s stepsister and A.L.’s mother who, after first attempting to take matters into their own hands, called the police. As a result, Stone was picked up by the Wichita police and interrogated by Detective Kelly Mar. The interrogation began at approximately 1 a.m. and was recorded (audio only). It lasted a total of about 1 hour and 40 minutes, consisting of two segments. During the first, Stone’s personal history information was collected, he was read and waived his Miranda rights, and he agreed to give a DNA sample. The second 85-minute segment consisted of his interrogation by Detective Mar. The intervening break was caused by the detective turning off the recording machine while she swabbed Stone for the DNA sample. A redacted version of the recording was played for the jury members, who were also allowed to follow along on a transcript. Stone maintained his innocence throughout the interview; however, after he initially denied that anything happened, his account of the incident gradually expanded as the interview progressed. Eventually, he made some incriminating statements, including that the victim put her hand on his penis.
Prior to interviewing Stone, Detective Mar had interviewed A.L. That interview was videotaped and the video was played for the jury in its entirety. The video was not included in the record on appeal, but the audio portion of the interview was. A.L. reported to Detective Mar that, during the event, sticky stuff came out of Stone’s penis and she wiped it on her pajama top. Despite not having the results of lab tests on the pajama top, Detective Mar repeatedly told Stone during his interrogation that semen had been found on the pajama top and he needed to explain how it got there. In fact, when lab results were complete, no semen was detected on the pajama top.
The prosecutor opened her closing argument with the statement, “[A.L.] told you what happened.” She closed her summation with the statement, “[A.L.] told you what happened. She showed you what happened. She is a credible witness.” During the course of her closing argument, she also told the jury:
“He [Stone] has two huge obstacles he has to overcome to present any kind of a credible defense to you. The first obstacle that he has to overcome is that [A.L.] is so credible.
“The other huge obstacle the defendant has to overcome is his confession.”
The jury had deliberated for approximately a day before asking the court to view again the videotaped interview of A.L. and to hear again portions of the tape recording of the interrogation of Stone and the entire testimony of A.L. The jury wanted to hear the portions of the interrogation “when the detective began telling the defendant he had semen on [A.L.]’s shirt, when the detective and Mr. Stone began talking about [A.L.] actually touching him, one finger, two fingers and approximately the last quarter of the interview.” The trial court and attorneys determined that identifying specific portions of Stone’s interview on the tape was too difficult and that the entire interrogation should be played again for the jury. The jury’s two other requests were also granted.
After deliberating approximately 3 more hours, the jury informed the judge that it was hopelessly deadlocked. The trial judge instructed the jury to return to the jury room to ensure that it could not reach a verdict. According to the times noted in the transcripts, 2 minutes later it returned with a guilty verdict on one count of aggravated indecent liberties with a child and not guilty verdicts on the remaining charges.
The trial court departed from the mandatory 25-year sentence under K.S.A. 21-4643, “Jessica’s Law,” and sentenced Stone to 61 months. Stone appealed. Jurisdiction is in this court under K.S.A. 22-3601(b)(l), conviction of an off-grid crime.
Prosecutor’s Conduct
Stone complains that statements made by the prosecutor during closing argument entailed improper comment on the credibility of witnesses and shifted the burden of proof in the case to him, denying him a fair trial. He made no objection to the comments during the closing argument, but a contemporaneous objection to prosecutorial misconduct during closing argument is not required in order to preserve the issue for appeal. State v. McReynolds, 288 Kan. 318, 322-23, 202 P.3d 658 (2009); State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007).
“In general, appellate review of an allegation of prosecutorial misconduct involving improper comments to the juiy follows a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Albright, 283 Kan. at 428.
“In the second step of the two-step analysis, the appellate court considers three factors: ‘(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60-261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v. California, 386 U.S. 18, [22,] 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied. 386 U.S. 987 (1967) [conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial], have been met. [Citations omitted.]’ Albright, 283 Kan. at 428.” McReynolds, 288 Kan. at 323.
Stone argues that the State’s closing was improper for a combination of three reasons. First, he argues that the State improperly attempted to shift the burden of proof by arguing that he had significant “obstacles to overcome.” He combines the second and third reasons into one argument that the State improperly com- merited on the credibility of the complaining witness by asking the juiy to speculate on matters not in evidence when it argued that her version was credible because if she had made up a story, she would have made up a better one than the one she gave.
Shifting the Burden
It is improper for the prosecutor to attempt to shift the burden of proof to the defendant or to misstate the legal standard of the burden of proof. See State v. Tosh, 278 Kan. 83, 89-92, 91 P.3d 1204 (2004). In Tosh, a rape case, the prosecutor questioned the jury in closing argument, “ ‘ “[I]s there any evidence that it didn’t happen? Is there any evidence that the things she told you didn’t happen?” ’ ” 278 Kan. at 92. This court found the questions an impermissible attempt by the State to shift the burden of proof to the defendant. 278 Kan. at 92.
In this case, Stone contends that the State’s argument that he had “obstacles to overcome” amounted to the same kind of burden-shifting argument that occurred in Tosh. The statements here, however, seem more akin to those made by the same prosecutor in State v. Burden, 30 Kan. App. 2d 690, 46 P.3d 570 (2002), rev’d on other grounds 275 Kan. 934, 69 P.3d 1120 (2003). There, the Court of Appeals, in a decision written by Judge (now Justice) Beier, considered the prosecutor’s remarks in closing argument, “ ‘[T]he most overwhelming thing that the defense cannot overcome in this case is the physical evidence that corroborates [the victim’s] initial statements.’ ” 30 Kan. App. 2d at 703. The court characterized the comment as “inartful” but noted that the jury was properly instructed on the burden of proof and concluded that “the prosecutor was not attempting to shift the burden of proof to the defendant. Rather, she was within the considerable latitude granted to prosecutors to comment on the weakness of defenses . . . .” 30 Kan. App. 2d at 703.
Here, the prosecutor spent time in her argument reviewing the burden of proof instruction with the jury.
“I want to go over some of the legal things with you. You know, the jury instructions are the factors that you get of how to decide the case, and the first one that I’ll talk about is the burden of proof. These elements of the offenses that the judge has just read, those are the tilings that must be proven beyond a reasonable doubt, those elements and only those elements.”
Later in the argument, the prosecutor reviewed the instructions listing the specific elements that must be proven beyond a reasonable doubt. This argument stands in contrast to the argumentative questions posed to the jury by the prosecutor in Tosh, implying that it was the defendant’s burden to produce evidence to disprove the charges.
Credibility of Witness
“In general, prosecutors may not offer juries their personal opinions as to the credibility of witnesses. Prosecutors have wide latitude, however, to craft arguments that include reasonable inferences to be drawn from the evidence. That latitude includes explaining to juries what they should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State’s witnesses. State v. Scaife, 286 Kan. 614, 623-24, 186 P.3d 755 (2008).” McReynolds, 288 Kan. at 325.
“The point of not allowing a prosecutor to comment on the credibility of a witness is that expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony, not commentary on the evidence of the case.” State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000).
Clearly, a few of the prosecutor’s statements, taken in isolation, constitute questionable prosecutorial argument. Her unqualified assertion that “A.L. told [the jury] what happened,” and “[s]he is a credible witness,” standing alone, were undeniably commentary on the credibility of her witness. But these comments were the brackets around an argument that detailed for the jury the factors that it could and should consider in determining the credibility of the witness. This argument included:
“How do you assess the credibility of the witnesses? The legal instructions tell you you have the right to determine a witness’ credibility about the subject a witness testifies about. You have a right to use your common knowledge and experience, so look at yourself. You are men and women. You are different ages. You have different occupations, moms, dads, whatever your occupations.
“How do you assess the credibility of people that you deal with every single day? By eye contact, by the words that they use and what they are saying, by the context of the situation and how they are describing things. Use this law and you will find — talk about how credible [A.L.] is compared to him.”
Placed in context, the prosecutor s statements on credibility appear to be her attempt to summarize the conclusion to which an assessment of the evidence would lead the jury, rather than unqualified assertions that the jury should simply believe the prosecutor’s own assessment of the witness.
The prosecutor’s statements in this case continue to be “inartful” but within the wide latitude allowed the State when discussing the evidence in closing argument. Even if the court were to conclude that some or all of the comments were outside the latitude allowed the prosecution, they do not require reversal under the second part of die prosecutorial misconduct analysis. The conduct was not gross and flagrant, nor did it demonstrate ill will on the part of the prosecutor. It must be noted, however, that the third factor of this analytical step, “whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors,” gives pause. Clearly, the jury in this case did not find the evidence to be overwhelming. The trial judge recognized and commented on that fact in imposing a departure sentence on Stone. Nonetheless, the prosecutor’s comments in closing were not so egregious as to warrant a conclusion that a new trial is required.
Stone’s Interview Statements
Detective Mar’s interrogation of Stone was recorded (audio only) and a transcript of the recording was created. On October 5, 2007, the trial court conducted a Jackson v. Denno hearing to determine whether the recording and transcript would be admissible at trial. See Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964). The trial judge listened to the testimony of Detective Mar, as well as to the entire recording, with the benefit of the transcript to follow as he listened. At the conclusion of the hearing, he found the statements Stone made to the detective during the interview were made with a full understanding of his rights and were voluntarily given. Ultimately, the jury heard a redacted version of the recording twice and was allowed to follow along on a redacted version of the transcript. Stone argues the recording and transcript should not have been admitted into evidence.
A dual standard is used when reviewing the suppression of a defendant’s statements. In reviewing a trial court’s ruling on a suppression issue, the appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The appellate court does not reweigh evidence, assess the credibility of the witnesses, or resolve conflicting evidence. State v. Gant, 288 Kan. 76, 80, 201 P.3d 673 (2009); State v. Johnson, 286 Kan. 824, 835-36, 190 P.3d 207 (2008).
When a defendant claims his or her statement was not voluntary, the prosecution has the burden of proving by a preponderance of the evidence that it was voluntary. The essential inquiry is whether the statement was the product of an accused’s free and independent will. The court looks at the totality of the circumstances surrounding the statement and determines its voluntariness by considering the following nonexclusive list of factors: “ ‘(1) the accused’s mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused’s age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused’s fluency with the English language.’ [Citation omitted.]” Johnson, 286 Kan. at 836. We have recognized that law enforcement coercion can be mental or physical. State v. Jackson, 280 Kan. 16, 36, 118 P.3d 1238, cert. denied 546 U.S. 1184 (2006).
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.”
Stone argues that his lack of experience with law enforcement and the late hour of the interrogation, combined with promises and deceptive practices by Detective Mar, rendered his statements involuntary and not a product of his free and independent will.
Following the hearing, the trial judge made extensive findings on the record on each of the six voluntariness factors set out above. He found there was no question regarding Stone’s ability to understand English and no reason to suggest that Stone’s age, 23, or his intellect or background presented an obstacle to his understanding of the interrogation proceedings. Stone has not argued that they did, nor have we uncovered any reason to suspect those factors affected his statements.
Next the district judge reviewed the manner and duration of the interrogation. He observed that at times the questions were tough or aggressive but did not find the tone of the interrogation to be anything out of the ordinary. Nor did the length of the interrogation, a little over 2 hours, present a problem of undue duress. He also found that Stone made no requests to communicate with anyone outside of the interrogation and, consequently, that factor simply did not apply. Again, Stone has not argued these issues, and the tape recording of the interrogation supports the district court’s findings.
The district court next considered Stone’s mental condition at the time of the interrogation. Stone argues that he was tired and confused due to the late hour of the event, but the district court found that Stone had no difficulty in understanding and responding to the detective’s questions. The district court believed that Stone’s claims of exhaustion or confusion only correlated with tough questions by the detective but, in fact, Stone repeatedly stated during the interview that he was tired. He mentioned having worked 100 hours at his fast food job over the preceding 2 weeks, having a sore throat, and having recently been to the hospital for an ankle injury. He told the detective early in the interview that he becomes confused when under pressure, and this claim was born out by the recording and transcript. His responses to the detective’s questions were often disorganized and garbled. He cried several times during the interrogation and became audibly frustrated with the detective’s repeated questioning.
The district court then reviewed the tactics used by Detective Mar during the interrogation. Stone argues that Mar used deceptive tactics to confuse him and pressure him into making incriminating statements. Specifically, the district court reviewed three tactics used by Mar: insisting that Stone tell her “the truth,” telling Stone that he needed to appear cooperative to the prosecutor and the judge, and lying to Stone about the presence of his semen on the victim’s pajama top.
Repeatedly throughout the interrogation, Detective Mar exhorted Stone to tell the truth or told him she was “just trying to get the truth.” In context, it is clear that Detective Mar was accusing Stone of lying when he repeatedly denied the accusations against him and that “the truth,” from the detective’s perspective, was the victim’s version of the events. She combined this tactic with repeatedly telling Stone that she had confirmed the presence of semen on the victim’s pajama top and she was just trying to figure out how Stone’s semen got on the pajama top. While she did tell him that she had not yet matched DNA from the pajamas to his DNA, it is clear from her statements that she had little, if any, doubt that the two would match. In fact, she told Stone that she believed they would match. She combined these two tactics with statements inferring that only confessing to the crime would affect whether Stone went to jail or the length of his jail sentence.
The trial judge reviewed each of the three alleged deceptive practices individually, citing case law to support his conclusion that each did not render Stone’s statements involuntary. With respect to the allegation that Mar unduly pressured Stone by repeatedly insisting that he tell the truth, the court cited State v. Newfield, 229 Kan. 347, 623 P.2d 1349 (1981), for authority that encouraging the defendant to tell the truth is not inappropriate. In Newfield, the issue was whether the defendant’s statement should be suppressed because he had invoked his right to counsel but had then confessed before counsel was appointed or present. The interrogating officer in that case told Newfield that the people of the town would think better of him if Newfield told the truth. Newfield re cites the well-worn rule that a “mere exhortation or adjuration to speak the truth, or the mere suggestion to an accused that he confess, will not exclude a confession. [Citations omitted.]” 229 Kan. at 359. But this rule was not essential to the decision in Newfield, and the facts of the case are not similar to those presented here. The issue in Newfield was more precisely whether the statement that the town would think better of the defendant if he confessed carried an implied promise. There was no indication in Newfield that the officers attempted to pressure Newfield into talking by repeatedly insisting that he explain away nonexistent evidence as happened in this case. In this case, Mar s repeated exhortations to Stone to tell the truth, combined with her insistence that Stone’s semen was on the victim’s pajamas and that she needed an explanation for that, created considerable pressure on Stone to come up with an explanation.
Next the trial court considered whether Detective Mar had made any promises to Stone that would render his statements involuntary. The court focused on only one statement in which Detective Mar told Stone:
“KM: [W]hy don’t you think about what is — what is the judge and the [district attorney] gonna think about how — how you can step up and be honest and tell the truth. That you can be a man and step up and tell the truth. That speaks volumes. That’s — that’s [unintelligible] important that has an opinion of you. Step up and be a man and tell the truth.”
The judge cites State v. Altum, 262 Kan. 733, 941 P.2d 1348 (1997), and State v. Johnson, 253 Kan. 75, 853 P.2d 34 (1993), as authority for his finding that this statement was not unduly coercive and did not render Stone’s statements involuntary. Standing alone, the statement approximates the statements at issue in both Altum (detective told Altum if he stuck to his story, he was going to look foolish in court and the detective was not going to be able to tell the judge or the jury that he cooperated in the investigation) and Johnson (detective told Johnson he could not make any deals, he could only go to the prosecutor and indicate whether Johnson was cooperating). We would agree with the trial court’s findings if there were nothing more in the transcript to question, but that is not the case as we will demonstrate shortly.
Finally, the trial court considered the repeated statements by Detective Mar that there was semen on the pajama top and her implications that the DNA sample taken from Stone would match the DNA that would be pulled from the clothing. The trial court notes that a “big part of the interview was the inference or assumption by both the interrogator and Mr. Stone that there was semen on the clothes of the victim and that the semen was available to be tested and analyzed. “ In fact the substance on the pajama top could not be confirmed to be semen, much less be matched to Stone.
The trial judge reviewed State v. Wakefield, 267 Kan. 116, 977 P.2d 941 (1999), and found that it stands for the rule that deceptive interrogation techniques do not establish coercion but are one circumstance that must be viewed in conjunction with the others present to assess the totality of the circumstances surrounding Stone’s statements and their effect on its voluntariness. Nonetheless, the district judge seems to conclude that since Detective Mar sincerely believed that there was semen on the clothing, this tactic could not be found to be unduly coercive.
The trial judge considered each of these interrogation techniques individually, but there is no indication in the record that he considered the cumulative effect of these techniques when taken as a whole, and it is in this regard that we believe the trial court’s review was lacking. A review of the recording and transcript establishes that the combined effect was significant.
Shortly after the second part of the interview began, Detective Mar began asking Stone to explain how his semen could have ended up on A.L.’s pajama top.
“KM: Okay, so, would there be any reason why she would have any of your DNA on her?
“JS: Uh huh (neg.).
“KM: Would there be any way that any of your semen would be on her or on her clothing?
“JS: No.
“KM: So, if I found semen on her clothing that she was wearing last night, no chance it’s yours?
“JS: No.
“KM: Okay. Any idea how she’d get semen on her clothing?
“J.S: But I wouldn’t do it. I know huh — never mind, I’m to[o] tired to think.
“KM: I mean, would you know of any[ ]way that she’s [sic] have semen on her clothing?
“JS: No. Cause I know I wouldn’t do nothing like this.
“KM: Okay.
“JS: I don’t know how many times I have to sit here and say this.
“KM: Well, I’m — I’m just trying to figure out what happened. I mean it’s not like—
“JS: I’m getting wrongly accused that’s what it’s getting down to the point.
“KM: Okay.
“JS: I’m getting wrongly accused of it. I’m tired.”
As the interview continued, Mar continued to press for an explanation of how Stone’s semen could be on A.L.’s pajama top. Stone continued to deny wrongdoing and even told the detective that it did not matter what he said, that she was apparendy going to say he did it regardless of what he said.
“JS: And I’m tired of it. I don’t want to be accused of stuff anymore.
“KM: Okay. So why would she tell me this story?
“JS: Where is this leading to?
“KM: Well, I’m trying to figure out, okay, it’s leading to I’ve got clothing that has semen on it. Okay. I had a lab out at the house and they [luminoled] have you ever seen that where they [luminol] a couch and then black fight it? And if there’s semen there it shows up. And they found semen on the futon. Okay. I have clothing that we [luminoled] and I have semen on that clothing. Okay. And I’m gonna match, I’m gonna run that semen with your DNA that I collected tonight through the lab. Now, what I’m asking you is am I gonna get a match?
“JS: But see thing is I would not do nothing, I would not have nothing like that on the clothing. And I did not do nothing with her.
“KM: Okay. So, you’re saying that — that no way what happened what she’s saying happened happened last night?
“JS: Not even half of it.
“KM: Okay. So, am I gonna get a match?
“JS: _if you do_you do_because you know—
“KM: Okay. So, if I do—
“JS: [I]f you guys are going to do something—
“KM: —what I’m asking you, is explain to me Josh, how would your semen show up on her clothing?
“JS: I did not do have her do nothing to me.
“KM: Okay. So, how — how is it that — that—that she’s got semen on her clothing? I mean there’s no doubt that’s what it is. Okay.
IS:--
“KM: Cause we’ve already confirmed that — that’s what it is. Now, we’re just gonna do the DNA pull the DNA from it--”
Shortly after this point, Detective Mar told Stone that “we need to get you some help. We need to get you some counseling.” Stone began asking her how confessing to the crime was going to help him. He claimed he was being wrongly accused. Stone can be heard crying on the tape and then told the detective that A.L. did get up in the night and came over to the futon where he was sleeping to give him a hug. He said her hand rubbed up against him and he pushed it away, but he continued to maintain that he did not have her do anything to him. The detective repeated the victim’s story and continued to question why Stone’s version did not match the victim’s. She continued to press him to tell her what happened. Stone responded:
“JS: How many times do I have to tell you on this recorder that I — that I got woke up and I was half asleep while I was sitting up and she bent over and gave me a hug.
“KM: Okay.
“JS: How many times I got to tell you that story?
“KM: But that’s not answering my question. When I said—
"JS: How's that not answering your question.
“KM: I’m asking you are you saying that what she’s telling us is just a big story?
"JS: I would not have a little girl touch me.
"KM: Okay. Is [A.L.] telling us a story?
“JS: I don’t know-I don’t know.
“KM: No, I don’t believe she is. I think she’s telling us the truth. Because she’s very precise about it and — and you know, I asked you to tell the story the same and your story changes. Her story_and she’s told__
“JS: Cause my nerves are shot through the roof, okay?
“KM: You’re telling me that a nine year old [girl’s] two little tiny fingers slipped down your pants and grazed your penis and got a big gloop of semen.
“JS: Basically, what you’re telling me is that I did do it.
“KM: I’m telling that that’s exactly what happened. . . . And I, I’m pretty— I’m pretty sure that she’s telling me is the truth. And I also know that when I match the DNA off the couch and off her shirt with the DNA from your mouth, it’s all gonna match. All of it. Because she’s telling me the truth. So now, I’m just asking you to tell me the truth. Help yourself. It’s gonna help you because it’s gonna show that you’re not, you didn’t prey on her.” (Emphasis added.)
The interrogation continued in this manner, with the detective telling Stone to “just tell the truth” and Stone becoming increasingly frustrated and maintaining that he believed he would be in trouble whether he told the truth or not.
“KM: So, she’s lying? You’re telling me she’s lying?
“JS: How — how is to me every time I tell the truth that I know that I if that even if I do say the truth then my ass ain’t gonna go to jail how would that help her.
“KM: Because you messed her mind up. She_she trusted you. You’re an adult. Okay. It’s gonna be helpful for her if we can tell her, you know what? He made a mistake. He__
“JS: How is that going to cause me to go and get help too.
“KM: How, is not gonna help you to know that you’ve told the truth and that you’ve, you know, that look at what happened.
“JS: How is that gonna keep me out of jail?”
“KM: Huh? Nothing is going to keep you at this moment out of jail unless we can figure out what’s the truth. What is the truth. I’ve asked you. Is she lying? And you can’t answer that, because you know she’s not lying.
“JS: But how but what I want to know ma’am is why__telling the truth -get help when it’s gonna send me straight to where.
“KM: So, Josh, what you been telling me tonight’s been a lie?”
“JS: No, but — not all of it.
“KM: Well, I believe the part where you’re sitting up is the truth.
“JS: But why, but why, but I wouldn’t have little girl touching me on my—
“KM: I don’t think, I don’t think that you do that on normal basis. I think last night you made a bad choice.
“JS: _but—
“KM: Okay, You made a bad choice. So, you know what you step up and you take punishment for being, making a bad choice, just like you__
“JS: How long I’m going to be in? (crying)
“KM: I don’t know. Depends on how much you’re willing to be honest about. ” (Emphasis added.)
Shortly after this point in the interrogation, Mar told Stone to think about what the judge and the prosecutor would think. Although he continued to deny that he had A.L. do anything to him, he then told the detective that A.L. grabbed his penis and squeezed it.
“KM: Okay. So, she reached down and'—
“JS: Yes, ma’am.
“KM: —took a hold of your penis?
“JS: Yes, ma’am.
“KM: Okay. And having somebody holding your penis and she was moving up and down cause she’s made that motion hand motion with her hand, she was moving up and down on your penis wasn’t she?
“JS: Yes, she was.
“KM: Okay.
“JS: But I didn’t have her do it.”
Stone told Detective Mar that the touching lasted approximately 3 minutes during which he told A.L. to stop. These turn out to be the most incriminating statements that Stone made. Shortly after he made them, the detective terminated the interview.
As stated earlier, a dual standard of review applies to our review of the trial judge’s decision. First, we examine whether substantial competent evidence supports his findings. In this case, substantial competence evidence does underlie most of his factual findings, although the trial judge ignored the more egregious statements made by the detective during the interrogation. Second, we review de novo the ultimate legal conclusion made by the trial judge. It is on this point that we believe the trial court erred as a matter of law in fading to look at the circumstances of the interrogation in totality. The detective’s repeated insistence that the truth could only be the version told by the victim, combined with her unequivocal statements that there was semen on the victim’s pajamas and her belief that the DNA in it would match Stone’s, followed by statements to the effect that only confessing could keep him out of jail or affect the length of his jail term made the circumstances unduly coercive. Moreover, a close examination of the interrogation reveals that Stone did not volunteer facts but rather he adopted facts as they were suggested to him by the detective and as her insistence that he tell “the truth” became more adamant. For example, this exchange constituted the first point at which Stone went beyond denying that anything at all had happened:
“JS: But see, I don’t know why she would say this. I would never touch a little kid.
“KM: Okay.
“JS: I wouldn’t.
“KM: Do you sleep walk? I mean — ■
“JS: No, I don’t. I know that for a fact.
“KM: Okay. I mean, would it be that she’s just, I mean she — she misses her dad and you said that she got very attached to you. Uh — did she maybe, I don’t know crawl into bed with you one night or last night was she, do you remember when she came out to get a drink did she come over and give you a hug or say anything.
“JS: One time — one time, she did come over and give me a hug.
“KM: Last night?
“JS: Yes. That’s — -that’s it. But no, nothing like that else like that happened.
“ICM: Okay.
“JS: I wouldn’t do that and I would not even touch that little girl, let alone a little kid.”
Another tactic used by Detective Mar involved minimizing the seriousness of the accusations against Stone and indicating that a confession would corroborate that he was not a child sex predator:
“JS: But I wouldn’t do that. I wouldn’t.
“KM: I mean, it’s not saying that you’re a horrible person, it’s saying that, you know, you’ve been under a lot of pressure and you’ve been very tired like you said, you know, it’s — it’s a release. That kind of sexual, you know, it’s just masturbation. It’s not sex.
“JS: If I — if I had that kind of sex — sexual tension or whatever I wouldn’t do that with a little a minor or nobody. I would go and I would get myself a girlfriend.
“KM: There was no sex. I mean, she’s not saying that you had sex with her but that you just had her, just basically just jack you- off. And that’s, you know, that’s not a big deal. It’s not, I mean it’s not full blown sex. You know, it’s just — just a litde hand job that’s all.
“JS: But I wouldn’t have a little kid do that.
“KM: Okay.
“JS: If I wanted to do it I’d do it in my damn my — myself.
“KM: Okay. But you never answered my question. So, is she lying?
“JS: Yes.
“KM: I’m just wondering Josh, you know, it’s — it’s not like this is full blown sex, okay. This is a hand job, alright.
“JS: Okay. But — that still don’t matter
“KM: I mean, if that’s what it was, that’s what it was. Tell us the truth. I mean, that’s all we want to know.
“JS: ■ — But—I’ll go to jail tonight. And I don’t want to, I’m trying to keep myself out of jail period.
“KM: Okay. So—
“KM: —tell the truth. Okay. [A.J.] is nine years old. And we need to get her some help. We need to get her some counseling. We need to get you some help. We need to get you some counseling.
“KM: Yeah, I understand. You know, Josh, I believe you — you know you’re telling me, you know, pieces of the truth. And I believe you want to tell me you know.
“JS: But I didn’t do it.
“KM: Well, I’m not saying that your — that you — you forced her. I’m just saying that I mean she was — she came with you out to the living room willingly. I’m not saying you forced her.
“JS: I didn’t have her do nothing like that to me. And I wouldn’t have no.
“JS: Basically, what you’re telling me is that I did do it.
“KM: I’m telling that that’s exactly what happened. I think that you did pick her up from her room, bring out into the couch, sat down on the couch, put her hand around it and showed her and had her jack you off. Not because you have a fetish or that you’re preying or anything else, but it’s somebody different. It’s somebody else helping you get gratification that you needed because you’re stressed out and over working and tired and everything else. And I, I’m pretty — I’m pretty sure that she’s telling me is the truth. And I also know that when I match the DNA off the couch and off her shirt with the DNA from your mouth, it’s all gonna match. All of it. Because she’s telhng me the truth. So, now, I’m just asking you to tell me the truth. Help yourself. It’s gonna help you because it’s gonna show that you’re not, you didn’t prey on her. You didn’t force her. You didn’t intentionally did this. It was one of those, okay, you had a, you’re tired, you’re not feeling good, you made a bad choice, a bad judgment. Okay. Or are you this guy that’s been preying on this little girl that took her and forced her to jack you off, because you’re just a — a pedophile that preys on little girls? So, help me figure out what — what—what happened and what kind of a person are you. Were you sick and tired, and you know what, you made a bad choice because you needed some tension release. Or are you this person that preys on these little girls that — that drags her in and gets your gratification by little girls jacking you off?”
These statements cumulatively and strongly suggested to Stone that only confessing to the “truth” as the detective saw it would save him from being painted as a “preying pedophile” and, in turn, affect his sentence.
In State v. Swanigan, 279 Kan. 18, 106 P.3d 39 (2005), the defendant was accused of robbing a convenience store. Before en tering, the robber had put his hand to the window and looked into the store. Swanigan was picked up several days after the robbeiy and interrogated. During the interrogation, the officers repeatedly told Swanigan that his fingerprints had been found on the window. After reviewing the tape recorded interrogation, this court found “no express threats were uttered, but . . . evidence of implied threats exist[ed] on tire audiotape” and the implied threats were intertwined with the officers’ urgings that Swanigan cooperate. 279 Kan. at 26. The officers told Swanigan that he needed to “ 'come clean’ ” in order to establish that he had not taken part in a number of other crimes:
“ “We just want to know your involvement in yours. That’s all we want to know from you, so that you don’t get charged with all of them. Cause I honestly don’t think you’re involved in all of them.’ ” 279 Kan. at 26.
This court found that the lies regarding the fingerprints were one circumstance that must be considered along with others in the case including the police interrogation tactics, and that the implication of negative consequences if Swanigan did not “cooperate” was inconsistent with his rights articulated in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), and another circumstance to be factored into the totality.
“Although any one of these factors which Swanigan asserts — his low intellect and susceptibility to being overcome by anxiety, the officers’ repeated use of false information, and their threats and promises — may not be sufficient to show coercion, the combination of all of them in this case leads us to conclude as a matter of law that Swanigan’s October 31 statement was not the result of his free will, but was involuntary.” Swanigan, 279 Kan. at 39.
This case has much in common with Swanigan. While any one of the circumstances surrounding this interrogation, standing alone — Stone’s condition, Detective Mar’s misleading statements about the semen on the pajama top, her statements that the length of his sentence could only be affected by his telling the “truth,” the implications he would be viewed as a sexual predator unless he confessed — might not have led us to conclude Stone’s statements were coerced, a review of the audio recording taking into account all of these circumstances, as the law requires, leads us to conclude as a matter of law that Stone’s statements were not the product of his free and independent will and that it was error to admit them at trial.
During deliberations, the jury asked to hear nearly the entirety of the evidence again, focusing specifically on the portions of Stone’s interrogation where he starts to say that, while not at his behest, something did happen between himself and A.L. After hearing that testimony again, the jury informed the court that it was deadlocked and could not reach a verdict. Only after being sent back to the jury room did it return a verdict and then only on one of the least serious of the four crimes with which Stone was charged — the aggravated indecent liberties charge that alleged he submitted to her touching. Under these facts, it is impossible to conclude beyond a reasonable doubt that the admission of the statements Stone made during the interrogation were not key to the jury’s verdict; therefore, we must reverse that verdict and remand the case for a new trial at which the statements made by Stone to Detective Mar are not admissible. See Arizona v. Fulminante, 499 U.S. 279, 310, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991); Swanigan, 279 Kan. at 45-46.
The conviction is reversed, and the case is remanded to the district court for a new trial at which Stone’s statements to the detective are not admissible. | [
112,
-88,
-85,
31,
41,
-32,
42,
88,
96,
-9,
-29,
115,
-85,
-58,
4,
123,
-104,
63,
84,
97,
80,
-78,
103,
-63,
-14,
-5,
112,
-35,
-77,
75,
-68,
-68,
77,
80,
-62,
-41,
102,
-54,
-1,
86,
-114,
3,
-104,
-52,
-110,
2,
34,
59,
82,
11,
49,
63,
-13,
74,
28,
-37,
8,
44,
74,
-75,
112,
25,
-85,
-97,
-49,
16,
-77,
38,
-66,
4,
-8,
46,
24,
-71,
0,
-24,
115,
-92,
22,
116,
15,
-119,
-72,
99,
98,
48,
105,
103,
46,
-119,
47,
37,
-99,
-89,
-104,
105,
73,
109,
-74,
-39,
108,
84,
42,
122,
-13,
76,
53,
100,
-120,
-113,
-14,
-127,
79,
120,
20,
-16,
-21,
21,
0,
101,
-57,
34,
84,
-11,
-16,
-109,
-114,
-13
] |
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Carlos Dupree Romious, a/k/a D. Carlos Romious, of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas in 1997.
On September 11, 2009, 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 failed to file an answer to the formal complaint. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on November 18, 2009. The respondent failed to appear at this hearing; however, he requested a continuance on the evening of November 17, 2009, by email to a special investigator for the Disciplinary Administrator, saying he was out of the state and could not afford to travel to Kansas. The hearing panel found that the respondent did not submit a timely request for a continuance and that good cause did not exist for a continuance.
The hearing panel determined that respondent violated KRPC 1.1 (2009 Kan. Ct. R. Annot. 410) (competence); 1.5(a) (2009 Kan. Ct. R. Annot. 460) (fees); 3.4(c) (2009 Kan. Ct. R. Annot. 552) (fairness to opposing party and counsel); 3.5(d) (2009 Kan. Ct. R. Annot. 558) (engaging in undignified or discourteous conduct degrading to a tribunal); 4.4(a) (2009 Kan. Ct. R. Annot. 572) (respect for rights of third persons); 8.4(b) (2009 Kan. Ct. R. Annot. 602) (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); 8.4(d) (engaging in conduct prejudicial to the administration of justice); 8.4(g) (engagingin conduct adversely reflecting on lawyer’s fitness to practice law); and Kansas Supreme Court Rule 211(b) (2009 Kan. Ct. R. Annot. 321) (failure to file answer in disciplinary proceeding). 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
“2. On October 8, 2008, the Kansas Supreme Court suspended the Respondent’s license to practice law for failing to comply with the annual administrative requirements to maintain a law license. The Respondent’s license remains suspended.
“Count I DA10509
“Municipal Court of Shawnee, Kansas, Conduct
“3. The Respondent represented Christopher D. Fallcner in a traffic case pending in the Shawnee, Kansas, Municipal Court, case number T08197971.
“4. On April 16, 2008, after the docket had been concluded in the Municipal Court of Shawnee, Kansas, the Respondent approached the Municipal Court Clerk’s window and demanded to see the prosecutor, Joshua Allen. The Respondent told the clerk to tell the prosecutor to get his ‘ass’ in the courtroom.
“5. Mr. Allen met with the Respondent in the courtroom. After the meeting, the Respondent returned to the Municipal Court Clerk’s window. Despite the fact that the clerks were already assisting the Respondent, the Respondent repeatedly rang the service door bell.
“6. On April 21, 2008, the Respondent returned to the Municipal Court of Shawnee, Kansas. The Respondent told the clerk that he wanted to ‘fucking’ file his paperwork. The Respondent presented a pleading entitled, ‘Defendant’s Application for Change of Judge’ in Mr. Falkner’s case. Tammy Manthei, clerk, told the Respondent that the clerks were working on it.
“7. The Respondent called Ms. Manthei a ‘fucking bitch.’ The Respondent pointed his finger at Ms. Manthei, hitting the glass. The Respondent told Ms. Manthei that she better do what he told her to do. The Respondent proceeded to tell Ms. Manthei that he is smarter than anyone in the clerk’s office. The Respondent repeatedly pointed at the clerks, calling them ‘fucking bitches.’ The Respondent told Ms. Manthei to get her ‘ass’ in there to get his signed motion. Ms. Manthei testified she had never experienced conduct like the Respondent’s in her eight years in the municipal court office. As a result of the Respondent’s conduct, someone from the clerk’s office telephoned the police department. The police did not arrive until the time when the Respondent was driving away in his vehicle.
“8. The Defendant's Application for Change of Judge contained several defects. First, die Respondent failed to include any reason for the Judge to recuse himself. Second, despite die fact that the application was being made in behalf of Mr. Falkner, the affidavit was tided 'Affidavit of Defendant Jonathan Johnson.’ Finally, while the affidavit indicates that it was subscribed and sworn to before a Notary Public, there is no signature fine nor a signature from a Notary Public.
“9. The judge summarily denied the Defendant’s Application for Change of Judge filed by the Respondent.
“10. As a result of the Respondent’s conduct in the Municipal Court, on May 1, 2008, the Johnson County District Attorney’s office charged the Respondent with disorderly conduct. During the pendency of the case, the Respondent failed to appear in court as ordered on three occasions. The Respondent failed to appear May 16, 2008, and April 10, 2009. In October, 2009, Ms. Manthei and other witnesses appeared in court for trial. The Respondent, however, failed to appear. The trial was continued to November 25, 2009. [Footnote: According to the Johnson County District Court website, on November 25, 2009, an attorney appeared in behalf of the Respondent. The attorney entered a plea of guilty in behalf of the Respondent. The court sentenced the Respondent to serve four days in the county jail. The Respondent received credit for time served and the case was closed.]
“Count II DA10509
“Federal Court Conduct
“11. On May 6, 2008, the Respondent entered the north door of the United States Courthouse at 500 State Avenue, Kansas City, Kansas. At a station manned by court security officers inside the doorway, the Respondent removed items from his pockets, placed the items in a tray, and walked through the magnetometer. The alarm on the magnetometer sounded.
“12. A court security officer told the Respondent to return to the entry side of the magnetometer, remove his wristwatch, and walk through the magnetometer again. The Respondent refused. The Respondent became very loud and began using profane language to the court security officers.
“13. The court security officers repeatedly told the Respondent to return to the entry side of the magnetometer or leave the building. The Respondent continued to refuseQ to comply and began shouting profanities at the court security officers. Despite the fact that the Respondent had not been cleared by the court security officers, the Respondent started walking toward the elevators. The court security officers told the Respondent to stop and to return to the entry side of the magnetometer. The Respondent did not stop. The court security officers repeated in a louder voice that the Respondent should stop and return to the security area. The Respondent stopped walking toward the elevators but continued using profane language toward the court security officers.
“14. The court security officers called the United States Marshal’s Office for assistance. Several Deputy United States Marshals responded, including Deputy Marshal Sean Franklin.
“15. Deputy Marshal Franklin told the Respondent to leave the courthouse. The Respondent refused to do so. The Respondent told Deputy Marshal Franklin that he would have to move him. Deputy Marshal Franklin put a hand on the Respondent and the Respondent shoved Deputy Marshal Franklin. Deputy Marshal Franklin took the Respondent to the floor. The struggle between Deputy Marshal Franklin and the Respondent continued, knocking over the magnetometer and going through a set of doors. Eventually, the Respondent was placed under arrest. Deputy Marshal Franklin received minor injuries in the incident.
“16. On May 14, 2008, a grand jury of the United States District Court for the District of Kansas indicted the Respondent in case number 08-20056CM in a three count complaint with (1) fading to comply with official signs of a prohibitory, regulatory, and directory nature and with the lawful direction of Federal police officer, (2) exhibiting disorderly conduct that created loud and unusual noise and a nuisance and unreasonably obstructed the use of an entrance, foyer, and lobby of the United States Courthouse, and (3) resisting, opposing, impeding, and interfering with Sean Franklin and Steve Malcarunis in the performance of their official duties. The first two charges were misdemeanors and the third charge was a felony.
“17. On December 18, 2008, the Respondent entered into a plea agreement. Pursuant to the plea agreement, the Respondent entered a plea of guilty to count one of the indictment. The Court sentenced the Respondent to 30 days and gave credit to the Respondent for time served.
“Count III DA10520
“Representation of Alta V. Vaughn, Sr.
“18. The Respondent represented Alta V. Vaughn, Sr. in the Circuit Court of Green County, Missouri, case number 31106CF0085. During the period of representation, the Respondent engaged in abusive and bizarre behavior.
“19. On April 24, 2008, the Respondent was in a Green County, Missouri, courtroom. During a hearing on a motion to suppress in a case which the Respondent was not involved, the Respondent loudly and rudely interrupted the proceeding. The Respondent accused the court of having a pattern and history of scheduling the Respondent’s cases at the end of the docket.
“20. On June 16, 2008, June 17, 2008, and June 18, 2008, the court in Green County, Missouri held a pre-hearing conference in the Vaughn case. Throughout the hearing, the Respondent made loud and rude statements.
“21. On June 16, 2008, the Respondent asserted that the proceeding was a ‘joke’ and a ‘travesty.’ The Respondent accused the judge of ‘apparent reckless, bias, prejudice, and potentially racist activity and conduct.’ The Respondent told the judge that the ‘proceeding was a joke’ and that the judge was ‘going to sit [his] ass up there.’ The Respondent accused the court of ‘corrupting and stinking up the case’ and ‘corrupting the system.’ Finally, during the hearing on June 16,2008, the Respondent repeatedly spoke over the judge and opposing counsel in a loud, rude, and angry manner. The Respondent refused to stop talking when so ordered by the judge.
“22. On June 17, 2008, the Respondent accused the court of ‘being anything but impartial, justiciable, and anything but incompetent.’ The Respondent wadded up a copy of a pleading filed by opposing counsel, threw it to the floor, and, using his shoe, ground it into the floor. When the court ordered the Respondent to appear the following morning at 8:00 a.m., the Respondent refused to appear. The Respondent told the court ‘to not expect him to be here’ and that he should not ‘hold [his] breath.’ Again, the Respondent repeatedly spoke over the judge and opposing counsel in a loud, rude, and angry manner. Again, the Respondent refused to stop talking when ordered to stop by the court.
“23. The hearing resumed on June 18, 2009, and the Respondent did appear. During that hearing, the Respondent asked the court whether he is a ‘pedophile.’ The Respondent also stated to the court that you’re going to sit up there with the audacity and the smugness of your holiness.’ Finally, and again, the Respondent repeatedly spoke over the judge and opposing counsel in a loud, rude, and angry manner. The Respondent, again, refused to stop talking over the judge and opposing counsel when ordered to do so by the court.
“24. As a result of the Respondent’s conduct on June 16, 2008, June 17, 2008, and June 18, 2008, the court held the Respondent in contempt and sentenced the Respondent to serve 120 days in jail. The Respondent served the entire sentence. (There was no direct testimony on this incident at the hearing. However, Disciplinary Administrator’s Exhibit 9, Judgment of Contempt and Disciplinary Administrator’s Exhibit 14, letter from the Respondent to Nancy Wilson, dated April 6, 2009, wherein the Respondent admits engaging in complained of conduct, provide the factual basis for this count.)
“Count IV DA10529
“Representation of [JJ.]
“25. The Respondent was a captain in the Kansas Army National Guard. As a result, from time to time, the Respondent would be appointed to represent soldiers with regard to military offenses.
“26. In the fall of 2007, [J.J.] was charged in a two count complaint in the District Court of Johnson County, Kansas, case number .... The charges were driving under the influence of alcohol and possession of drugs, both misdemeanors. [J.J.] was a soldier with the Kansas Army National Guard.
“27. [J.J.], with help from his mother and step-father, hired J. Steven Neighbors to represent him in the criminal case. [J.J.]’s mother paid Mr. Neighbors $1,500.00 for the representation in the criminal case. Mr. Neighbors is a very experienced criminal law attorney.
“28. With regard to military action that could have been taken against [J.J.], as a result of the criminal charges, [J.J.] requested that a Judge Advocate General be appointed to defend him. As a result, the Respondent was appointed to represent [J.J.] with regard to any military action taken against him. The Respondent was not appointed to represent [J.J.] in the pending criminal case in the District Court of Johnson County, Kansas.
“29. At some point, [J.J.j’s mother talked with the Respondent about having a meeting with the family, Mr. Neighbors, and the Respondent to make sure that everyone understood what was happening with regard to [J.J.j’s future.
“30. Mr. Neighbors negotiated a plea agreement. Pursuant to the plea agreement, the Respondent was to enter a plea of guilty to the driving under the influence of alcohol charge and in return, the prosecutor would dismiss the possession of drugs charge. The plea agreement was satisfactory to [J.J.], his mother, his step-father, and his father.
“31. The Respondent was to enter his plea of guilty to the driving under the influence of alcohol charge on April 11, 2008, at 1:30 p.m.
“32. An hour before the hearing, [J.J.] and his parents were to meet with the Respondent about [J.J.j’s future. [J.J.] and his parents were present, but the Respondent was not. Instead, the Respondent sent his wife to tell [J.J.] and his parents that he was on his way.
“33. When the Respondent arrived for the meeting, it was just minutes before the plea hearing was to occur. The Respondent informed Mr. Neighbors, [J.J.], and [J.J.j’s parents that he was going to take over the criminal case.
“34. In fact, unbeknownst to [J.J.J and his parents, the Respondent filed an entry of appearance in the criminal case at 11:30 a.m. that morning. Neither [J.J.J nor his parents had retained the Respondent, nor had they discharged Mr. Neighbors.
“35. The Respondent promised [J.J.J and his parents that he would obtain a dismissal of the pending charges. [J.J.J was uncertain as to how he should proceed. He was prepared to enter a plea of guilty to the driving under the influence of alcohol charge negotiated by Mr. Neighbors. However, the guarantee of having the charges dismissed was compelling. As a result, under a great deal of stress and anxiety caused by the Respondent, [J.J.J agreed to have the Respondent represent him.
“36. Orally, the Respondent and [J.J.J agreed to a flat fee of $3,500.00. [J.J.j’s mother paid the Respondent the $3,500.00 for die representation.
“37. At the hearing, Mr. Neighbors was allowed to withdraw and the Respondent was recognized as [J.J.j’s attorney. At the Respondent’s request, the case was continued to May 1, 2008.
“38. On April 21, 2008, the Respondent filed ‘Defendant’s Affidavit in Support of Defendant’s Application for Change of Judge.’ The document purports to have been signed by [J.J.J. However, [J.J.J did not sign the affidavit.
“39. The Respondent, in his representation of [J.J.J with regard to the potential military action, was abusive and arrogant in his dealings with [J.J.j’s chain of command.
“40. One night, the Respondent made arrangements to meet [J.J.] at a McDonald’s Restaurant in Independence, Missouri, at 11:30 p.m. The Respondent got into [J.J.j’s car and handed him papers to review and sign. One of the documents that the Respondent handed to him was a written fee agreement. The written fee agreement indicated that the Respondent’s hourly rate is $3,500.00. The Respondent sought payment of $13,250.00 as a liquidated fee.’ The Respondent directed [J.J.] to drive him to the Respondent’s wife’s place of employment in downtown Kansas City, Missouri, to pick up his car.
“41. [J.J.] was uncomfortable with the very unusual late night meeting with the Respondent. According to [J.J.] the meeting ‘seemed like a drug deal.’
“42. Regarding the $13,250 liquidated fee, [J.J.] told the Respondent that he did not have ‘that kind of money.’ The Respondent assured [J.J.] that the fee was negotiable. Subsequently, [J.J.] terminated the representation of the Respondent and requested that the $3,500.00 be returned. The Respondent never returned the $3,500.00. The Respondent threatened to sue [J.J.].
“43. [J.J.] and his parents believe that the Respondent’s treatment of [J.J.j’s chain of command negatively impacted [J.J.j’s military career. As a result of [J.J.j’s criminal case and the Respondent’s treatment of [J.J.]’s chain of command, [J.J.] received a general discharge from the Kansas Army National Guard. [J.J.j’s family had a long and proud history of military service. The Respondent’s conduct which materially contributed to [J.J.j’s discharge was emotionally devastating to [J.J.] and his family.
“44. When an army JAG attorney is appointed to represent a soldier in a military setting, pursuant to Army regulations, the JAG attorney is prohibited from representing that same soldier in a civilian setting if a fee is charged.
“45. Other than entering his appearance, continuing the April 11,2008, hearing, and filing the Defendant’s Affidavit in Support of Defendant’s Application for Change of Judge, the Respondent did nothing to earn the $3,500.00 fee.
“Count V DA10529
“Municipal Court of Grandview, Missouri
“46. On June 2, 2008, the Respondent appeared in behalf of a client at the Municipal Court of Grandview, Missouri. While court was in session, the Respondent was speaking in a loud voice and disrupted the court session. Mike Smith, the court bailiff asked the Respondent to move to an area that was made available for attorneys to meet with their clients and the court bailiff also asked the Respondent to keep his voice down.
“47. The Respondent began yelling at Mike Smith, telling him to get out of his face and that he can stand wherever he wanted to stand. A court security officer, Greg Smith, came to where the Respondent was making the commotion and escorted the Respondent to the courtroom.
“48. The Respondent continued to speak in a loud voice. Because he was disrupting court, Greg Smith escorted the Respondent to the bench. The Respondent stated that the Grandview Municipal Court is a ‘kangaroo court.’ The Re spondent started turning his hands around yelling, Tm Carlos Romious and I’m an attorney and I’m being treated unfairly in this courtroom.’ As a result of the Respondent’s disruptive behavior, the municipal court judge held the Respondent in contempt of court.
“49. Greg Smith placed the Respondent under arrest and escorted him to the detention area. The Respondent’s client observed Greg Smith escort the Respondent from the courtroom. Greg Smith heard the Respondent’s client state, ‘That’s my attorney and I don’t want to have anything to do with him.’
“50. While the Respondent was being detained, the Respondent called Greg Smith a snake. The Respondent stated that ‘all you guys in Grandview you are all snakes, that’s all you all are.’
“51. Approrimately fifteen minutes later, the judge called the Respondent back from the detention area. The judge admonished the Respondent to behave professionally in the courtroom and released him from custody.
“52. Two days later, Greg Smith observed the Respondent in the Grandview Municipal Court again. When the Respondent noticed Greg Smith, the Respondent started yelling at him. The Respondent yelled, ‘I’m back in Grandview. All the snakes are back again.’ The Respondent continued to scream that everyone was a snake and that Grandview is full of snakes.
“CONCLUSIONS OF LAW
“1. Rased upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 1.5, KRPC 3.4, KRPC 3.5, KRPC 4.4, KRPC 8.4, and Kan. Sup. Ct. R. 211, as detailed below.
“2. The Respondent failed to appear at the hearing on the Formal Complaint. It is appropriate to proceed to hearing when a Respondent fails to appear only if proper service was obtained. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows:
‘(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney’s most recent registration, or at his or her last known office address.
‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’
In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the Notice of Hearing, via certified United States mail, postage prepaid, to the address shown on the Respondent’s most recent registration. Additionally, the Disciplinary Administrator sent a copy of the Formal Complaint and the Notice of Hearing to several other addresses. Finally, it appears that actual service was obtained as the Respondent sent an electronic mail message acknowledging the hearing. The Hearing Panel concludes that the Respondent was afforded the notice that the Kansas Supreme Court Rules require.
“3. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ In representing [J.J.] in the Johnson County District Court matter, the Respondent lacked reasonable competence. He filed a motion seeking the recusal of a judge without making any factual allegations. Because tire Respondent was incompetent in representing [J.J.], the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“4. According to KRPC 1.5(a), ‘[a] lawyer’s fee shall be reasonable.’ The Respondent orally agreed to represent [J.J.] in the criminal case for a flat fee of $3,500.00. While that fee was more than double the fee Mr. Neighbors’ charged [J.J.] for the same representation, that fee was not perse unreasonable. However, later in the representation, the Respondent attempted to change the fee agreement from a flat fee of $3,500.00 to an hourly rate of $3,500.00. An hourly rate of $3,500.00 is unreasonable.
“5. KRPC 8.4(a) prohibits attorneys from violating or attempting to violate the Kansas Rules of Professional Conduct. By attempting to charge [J.J.] $3,500.00 per hour, the Respondent attempted to violate KRPC 1.5. As such, the Hearing Panel concludes that by virtue of KRPC 8.4(a), the Respondent violated KRPC 1.5.
“6. Pursuant to KRPC 3.4(c), lawyers shall not ‘knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.’ In this case, the Respondent knowingly disobeyed an obligation under the rules of a tribunal when he engaged in contemptuous conduct in die Circuit Court of Green County, Missouri, and Grandview Municipal Court. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 3.4(c).
“7. KRPC 3.5(d) prohibits lawyers from ‘engaging] in undignified and discourteous conduct degrading to a tribunal.’ The Respondent repeatedly engaged in undignified and discourteous conduct degrading to a tribunal in the Circuit Court of Green County, Missouri, and Grandview Municipal Court. Therefore, the Hearing Panel concludes that the Respondent violated KRPC 3.5(d).
“8. KRPC 4.4(a) provides:
‘In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.’
In this case, the Respondent shouted profanities at the clerks of Shawnee, Kansas, Municipal Court and at the court security officers and the United States Deputy Marshals. In addition, the Respondent was rude and disruptive in the Circuit Court of Green County, Missouri, and the Grandview, Missouri, Municipal Court. The Respondent’s conduct had no substantial purpose other than to embarrass or burden court personnel. As such, the Hearing Panel concludes that the Respondent violated KRPC 4.4(a).
“9. ‘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 engaged in criminal conduct at the Municipal Court of Shawnee, Kansas, and in the federal courthouse. As a result, the Respondent was convicted of disorderly conduct in the Johnson County District Court and was convicted of failing to comply with official signs of a prohibitory, regulatory, and directory nature and with the lawful direction of a federal police officer in the United States District Court for the District of Kansas. The Hearing Panel concludes that the Respondent committed criminal acts and those criminal acts reflect directly on the Respondent’s fitness as a lawyer in other respects, in violation of KRPC 8.4(b).
“10. ‘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 drafted the fee agreement and asserted that [J.J.] agreed to pay $3,500.00 per hour rather than $3,500.00 as a flat fee. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).
“11. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he disturbed the peace of the Shawnee, Kansas, Municipal Court clerk’s office, when he created the disturbance at the federal courthouse, when he disrupted court in the Circuit Court of Green County, Missouri, when he entered his appearance in behalf of [J.J.] without authorization, and when he disrupted court in Grandview Municipal Court. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
“12. ‘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 repeatedly violated KRPC 8.4(g).
“13. First, shouting profanities while in the Shawnee, Kansas, Municipal Court clerk’s office adversely reflects on the Respondent’s fitness to practice law.
“14. Next, the Respondent’s conduct at the federal courthouse adversely reflects on his fitness to practice law. Specifically, the Respondent was unwilling to remove his watch and walk back through the magnetometer. The Respondent shouted profanities at the court security officers and the United States Deputy Marshals. The Respondent attempted to gain entrance to the federal courthouse without security clearance. Finally, refusing to leave the building and instead, engaging in a brawl with the United States Deputy Marshals adversely reflects on the Respondent’s fitness to practice law.
“15. Generally, the Respondent’s conduct in the Circuit Court of Green County, Missouri, adversely reflects on the Respondent’s fitness to practice law. Specifically, accusing the judge in the Circuit Court of Green County, Missouri, of being a pedophile also adversely reflects on his fitness to practice law.
“16. Without being retained to represent [J.J.] in the criminal case, the Respondent entered his appearance. The Respondent’s conduct in inserting himself in [J.J.]’s criminal case pending before the Johnson County District Court adversely reflects on the Respondent’s fitness to practice law. Further, die Respondent engaged in conduct that adversely reflects on his fitness to practice law when he failed to return the unearned fees of $3,500.00 to [J.J.] or [J.J.j’s mother.
“17. The Respondent engaged in disruptive behavior while in the Municipal Court of Grandview, Missouri. The Respondent’s conduct in that court also reflects adversely on the Respondent’s fitness as an attorney.
“[18.] In summary, the Respondent’s conduct resulted in two criminal convictions, a contempt adjudication that led to 120 days in jail, minor injuries to a United States Marshal, and an adverse impact on a military career. The Respondent’s treatment of court staff and the judiciary was far below any acceptable standard. The Respondent’s conduct caused a negative public perception of the legal profession. Finally, the Hearing Panel cannot ascribe any good cause, justifiable reason or mitigating factor to the Respondent’s conduct in this case.
“19. Accordingly, the Respondent repeatedly engaged in conduct that adversely reflects on his fitness to practice law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).
“20. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) provides the requirements:
‘The Respondent shall serve an answer upon the Disciplinary Administrator
within twenty days after the service of the complaint unless such time is
extended by the Disciplinaiy Administrator or the hearing panel’
In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“AMERICAN BAR ASSOCIATION
STANDARDS FOR IMPOSING LAWYER SANCTIONS
“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 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.
“Duty Violated. The Respondent violated his duties to his clients, to the public, to the legal system, and to the legal profession.
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injuiy to his client and to the legal system.
“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 the following aggravating factors present:
“Prior Disciplinary Offenses. On May 9, 2001, the Respondent was informally admonished for having violated KRPC 1.1 and KRPC 1.3.
“A Pattern of Misconduct. The Respondent engaged in a consistent pattern of rude, disruptive, and at times criminal, misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.5, KRPC 3.4, KRPC 3.5, KRPC 4.4, KRPC 8.4, and Kan. Sup. Ct. R. 211. As such, the Hearing Panel concludes that the Respondent committed multiple offenses.
“Refusal to Acknowledge the Wrongful Nature of his Conduct. To a very limited extent, the Respondent acknowledged wrongful conduct in Disciplinary Administrator Exhibit 14.
“Indifference to Making Restitution. To date, the Respondent has not reimbursed [J.J.j’s mother for the $3,500.00 that she paid for the representation. [J.J.] and his mother made a claim with the Client Protection Fund and, as a result, received $3,500.00 from the fund. The Respondent should be required to reimburse the Client Protection Fund $3,500.00.
“Illegal Conduct, Including that Involving the Use of Controlled Substances. The Respondent was convicted of disorderly conduct and failing to comply with official signs of a prohibitory, regulatory, and directory nature and with the lawful direction of a federal police officer. Thus, the Respondent engaged in illegal conduct.
“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 no mitigating circumstances present.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.11 Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.
‘6.21 Disbarment is generally appropriate when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party, or causes serious or potentially serious interference with a 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, the public, or the legal system.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be disbarred. The Disciplinary Administrator stated that had the Respondent filed an Answer or otherwise participated in the process, indefinite suspension might have been an appropriate recommendation.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be disbarred.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
The Hearing Panel also noted that it would have also concluded respondent violated KRPC 1.15 and KRPC 1.16, for failing to refund the unearned fee to J.J. or his mother, had violations of those rules not been alleged.
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 Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 321). Clear and convincing evidence is “evidence that causes the factfinder to believe that ‘the truth of the facts asserted is highly probable.’ ” 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). 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 adopt the panel’s findings and conclusions.
Conclusion and Discipline
It Is Therefore Ordered that Carlos Dupree Romious, a/k/a D. Carlos Romious, be disbarred from the practice of law in the state of Kansas, effective on filing of this opinion, in accordance with Supreme Court Rule 203(a)(1) (2009 Kan. Ct. R. Annot. 272).
It Is Further Ordered that Carlos Dupree Romious comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361).
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.
Patricia Macke Dick, District Judge, assigned. | [
-80,
-22,
-51,
-35,
8,
97,
52,
44,
85,
-13,
119,
83,
-51,
-6,
-128,
119,
65,
105,
80,
121,
-59,
-76,
127,
64,
102,
-13,
-24,
85,
-70,
111,
-3,
-35,
73,
48,
-118,
-43,
6,
74,
-47,
92,
-94,
0,
9,
-16,
83,
-127,
36,
121,
18,
15,
49,
-50,
-29,
-82,
27,
75,
-120,
104,
-33,
-83,
-63,
-111,
-107,
21,
127,
20,
-93,
-108,
28,
-113,
92,
63,
-56,
-72,
3,
-20,
115,
-74,
-126,
100,
79,
-55,
-92,
118,
98,
32,
25,
-91,
-96,
-84,
31,
56,
13,
38,
-103,
81,
99,
12,
-106,
-99,
116,
22,
39,
124,
98,
69,
27,
36,
14,
-50,
-48,
-77,
30,
-28,
-50,
-118,
-25,
-90,
0,
17,
-59,
-26,
92,
-45,
48,
27,
-114,
-76
] |
The opinion of the court was delivered by
Johnson, J.:
The defendants in this quiet title action, Theresa M. Hoosier, et al. (collectively referred to as defendants), appeal the district court’s granting of summary judgment in favor of the plaintiffs, Letha McGinty and Michael McGinty (collectively referred to as the McGiniys). The district court judgment declared that, by virtue of a sheriff s deed in partition dated April 8, 1974, the McGintys acquired ownership of 100% of the surface interest and 50% of the minerals interest in and to the South Half of the Northeast Quarter (S/2 NE/4) of Section Thirty-six (36), Township Twenty-one South (21S), Range Fourteen West (14W), Stafford County, Kansas (hereafter referred to as the subject tract). Defendants only challenge the McGintys’ ownership of the minerals interest. We affirm the district court judgment, quieting title in the McGintys.
Factual and Procedural Overview
The defendants’ claims in this case are founded upon a challenge to an action commenced in 1973 in which one of the issues involved the partitioning of the subject real estate. A recitation of the chain of title on the subject property and the procedural history of the prior partition action is likely to become confusing and difficult to follow. Accordingly, we will try to summarize wherever possible and avoid a detailed description of any fact or procedural anomaly that is not essential for this decision, while assuring the parties that we are intimately familiar with all the nuances of the case.
In 1890 and for some 50 years thereafter, the subject real estate was owned by W.L. Curtis. Upon W.L.’s death, his widow, Margaret C. Curtis, acquired title and deeded a remainder interest to five people: Donald C. Hutchinson, Lester A. Curtis, General Curtis, William L. Curtis, and Harry W. Curtis. In 1953, Donald, General, William, and the children of Harry — Ruth Curtis and Donna Curtis — deeded their respective interests in the surface property rights to Lester, but each reserved their respective interests in the oil, gas, and minerals rights. At that point, Lester owned 100% of the surface and 20% of the mineral interests; Donald, General, and William each owned 20% of the mineral interests; and Ruth and Donna each owned 10% of the mineral interests.
Lester quitclaimed one-half of his interest to his wife, Opal. Upon his death in 1964, Lester’s children — Beverly Hipp, Lester A. Curtis, Jr., and Donald Curtis — and five grandchildren — Billie Hipp, Cheri Curtis, L.J. Curtis, Vickie Curtis, and Tammy Curtis— acquired fractional interests in the other one-half of Lester’s interest. In 1972, Opal transferred her interest to her son, Lester A. Curtis, Jr.
A year later, Opal’s daughter, Beverly Hipp, acting as Opal’s conservator, filed suit to set aside Opal’s deed to Lester, Jr. At the same time, Beverly (acting individually and as Opal’s conservator), together with Helen Stout (the daughter of General Curtis and his widow, Martha Curtis), filed a partition action on a different tract of real estate owned by the Curtis family (hereafter referred to as “other tract”). The named defendants were: Donald, William L., Lester, Jr., Cheri, L.J., Vickie, and Tammy. The two actions were consolidated.
Included with Lester, Jr.’s, answer to the partition action on the other tract was a cross-petition, praying for the partition of additional real estate coowned by members of the Curtis family. The ultimate amended cross-petition included the subject tract, which was simply described by the legal description without any mention of mineral interests. Only the successors to Lester’s interest, i.e., those who owned 100% of the surface interest and 20% of the mineral interest, were identified in the cross-petition as owners of the subject tract.
Helen Stout, who had at least á remainder interest in 20% of the mineral interest of the subject tract, filed an answer to the amended cross-petition in which she declared that she had no ownership interest in the subject tract. Likewise, William L. Curtis, Jr., who owned at least a remainder interest in one-half of William’s interest, i.e., 10% of the total mineral interest, was named and served in the consolidated partition action. The owners of the remaining 50% of the mineral interest were not personally served in the action, were apparently not served by publication notice, and did not participate in the action partitioning the subject tract. From the title information in the record, it appears that the owners of that remaining 50% interest are the successors in interest to Harry’s 20% interest (previously identified as passing 10% each to Ruth and Donna); the successors in interest to Donald’s 20% interest (identified as the Testamentary Trust of Donald C. Hutchinson); and the successors in interest to one-half of William’s interest, i.e., 10% (identified as having passed to'Paul Dallas Curtis).
Ultimately, the district court determined that it possessed both personal and subject matter jurisdiction to partition the subject tract and ordered that the land be sold. In describing the ownership of the property, the court only listed Lester’s successors, i.e., the persons who collectively owned all of the surface interest and 20% of the mineral interest. After the applicable statutory procedures and notifications, the sheriff conducted a public sale at which the property was sold to Michael and James McGinty. The recorded sheriff s deed, dated April 8, 1974, describes the property by its legal description, without any mention of severed mineral interests, and recites that the sheriff had been directed by the court to convey to the purchaser “all of the right, title and interest which the plaintiffs and the defendants have or claim to have in and to said real estate.” Apparently, all of the net sale proceeds were distributed to a trustee for Opal Curtis.
Some 32 years later, the McGintys filed this quiet title action, claiming to own all the surface interest and one-half of the mineral interest. Eventually, both sides filed a motion for summary judgment. The defendants claimed that the McGintys did not own any of the mineral interest because the sheriffs sale of the mineral interests was void. They argued that the court was without personal or subject matter jurisdiction to partition the mineral estate because only 20% of the mineral interest owners were ever properly served with notice, violating the “unity of partition rule”; that any sale of those mineral interests without proper notice violated due process; and that the sheriff s. deed was defective because it made no mention of the mineral reservation. Alternatively, defendants claimed that only 20% of the mineral interest could pass with the sheriff s deed.
The McGintys countered that the only persons who could attack the partition judgment were those owners who were never properly served with notice of the partition action and had not participated in that action, i.e., the owners of or successors to the 50% of the mineral interest which the McGintys were not claiming. They also suggested that because none of the pleadings or court orders mentioned the mineral interests and the sheriff s deed did not contain a mineral reservation, the deed was effective to transfer all of the interests of all of the parties to the action.
The district court agreed with the McGintys. The court found that all of the named parties in the 1973 lawsuit were served with the amended cross-petition to partition the subject tract, even though not all of the parties were represented by counsel or filed an answer. The court determined that the named parties in the partition action who had an interest in the subject tract collectively owned all of the surface rights and one-half of the mineral rights. The court noted that nothing in any of the partitioning court’s orders or in the sheriff s deed purported to except or reserve the mineral interests, but to the contrary, the sheriff s deed indicated that it was conveying all of the interests of the plaintiffs and defendants in the partition action. Therefore, the court found that the sheriff s deed had conveyed all of the surface rights and 50% of the mineral rights. The court further noted that there had been no appeal of the district court’s confirmation of the sheriffs sale, and that to allow a challenge to that judgment over 30 years after it was entered would run counter to the principle that the law favors finality of litigation.
The defendants present their challenge on appeal in the form of multiple stated issues and subissues, although the crux of their argument is that the sheriff s deed did not convey the mineral interests of those persons who were parties to the partition action. The defendants begin by asserting that Kansas law requires that all of the owners of a particular property must be made parties to an action to partition that property. They contend that requirement is the law established in prior Kansas cases and in the applicable partition statute. They attempt to bolster their argument by citing to cases from selected other states and by stating policy considerations they believe favor their result. The defendants also complain that the partitioning court failed to rule on a motion to strike which raised the same defense: that the McGintys knew or should have known that they were not purchasing any mineral interests at the sheriff s sale; and that the plaintiffs in this action admitted that all of the property owners are necessary for a valid partition.
The defendants then argue that any partition of any interests in the minerals, including that interest owned by the cross-petitioners, is void and defective. They contend that the undisputed fact that not all of the mineral interests owners were parties to the partition action deprived the district court of jurisdiction to partition any interest in the minerals.
Further, the defendants argue that, given that a sheriff s deed is akin to a quitclaim deed, it could not convey the mineral interests which the court lacked jurisdiction to partition. They also believe that it is determinative that the pleadings and sheriff s deed failed to mention the mineral interests, i.e., no mineral interests were partitioned.
Defendants make a brief argument that the existence of controverted facts should have precluded summary judgment, albeit they fail to identify any disputed facts that were material to the court’s decision. Included under this issue is the curious argument that affirming the district court will not resolve the title issues on the subject tract, because they allege one cannot know whose mineral interests should be taken away to make up the 50% interest awarded to the McGintys.
Finally, and alternatively, defendants assert that, at most, the sheriff s deed only conveyed 20% of the mineral interest. The argument is based on the cross-petition’s description of ownership and the testimony of an attorney who was involved in the partition action.
We will take the liberty to consolidate and redefine the issues for discussion.
Necessity to Join All owners
We begin by addressing the defendants’ suggestion that all par tition actions in this State must include as named parties each and every owner of all of the interests that may be outstanding in the real estate to be partitioned. We disagree with that premise.
Standard of Review
The defendants ask us to decide a question of law over which we exercise unlimited review. See Owen Lumber Co. v. Chartrand, 283 Kan. 911, 916, 157 P.3d 1109 (2007) (appellate court exercises unlimited review over district court’s conclusions of law).
Statutory Provisions
The applicable partition statute in effect at the time the subject tract was partitioned, K.S.A. 60-1003, remains essentially the same today. See L. 1963, ch. 303, sec. 60-1003. K.S.A. 60-1003(a) provides:
“(1) When the object of the action is to effect a partition of personal or real property or an estate or interest created by an oil, gas or mineral lease or an oil or gas royalty, the petition must describe the property and the respective interests of the owners thereof, if known.
“(2) If the number of shares or interests is known, but the owners thereof are unknown, or if there are, or are supposed to be, any interests which are unknown, contingent or doubtful, these facts must be set forth in the petition with reasonable certainty.
“(3) Persons claiming or having a specific or general Hen upon all or any portion of the property, may be made parties.
“(4) An allegation of ownership of an interest implies an allegation of right to possession of the property, and it is not necessary to claim the remedy of ejectment in an action for partition.”
Defendants specifically point to the provision in subsection (a)(1) directing that the petition must describe the property and the respective interests of the owners. They argue that such a mandatory pleading requirement manifests a legislative intent that, in their words, “all owners of the entire tract involved in a partition must be made parties to obtain a valid partition.” In effect, defendants are contending that the statute makes each and every owner of any interest in the subject tract an indispensable party to the partition action, although they do not state their contention in those terms. See City of Hutchinson v. Hutchinson, Office of State Employment Service, 213 Kan. 399, 405, 517 P.2d 117 (1973) (“ ‘In dispensable parties are those who must be included in an action before it may properly go forward.’ ”) (quoting Cities Service Oil Co. v. Kronewitter, 199 Kan. 228, Syl. ¶ 1, 428 P.2d 804 [1967]).
To the contrary, the statutory language upon which the defendants rely does not expressly make all property owners indispensable, or even necessary, parties to a partition action. See City of Hutchinson, 213 Kan. at 405 (quoting Cities Service, 199 Kan. 228, Syl. ¶ 1) (“ ‘Necessary parties are those who must be included in an action either as plaintiffs or defendants unless there is a valid excuse for their nonjoinder.’ ”). Rather, the provision is clearly intended to address the required contents of a partition petition. Even then, the statutory directive contains the disclaimer that the respective interests of the property owners need only be described “if known.”
Here, the amended cross-petition contained the statutorily required contents. It stated the legal description of the subject tract, without reservation or exception, which would indicate that partition was being sought on the entire property. Cf. K.S.A. 58-2202 (“every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant”). Further, it described the respective interests of the persons alleged to be the owners of the property. The problem in this case was simply that the petition’s description of the property owners was incomplete and therefore incorrect, which in turn made the description of the real estate subject to partition inaccurate.
However, the statute does not state or even imply that such a mistaken description or false allegation deprives the court of subject matter jurisdiction. To the contrary, K.S.A. 60-1003(b) provides that defendants’ answers “shall include allegations of the nature and extent of their respective interests” and further provides that the answers “may also deny the interests of any of the plaintiffs, or any of the defendants.” Obviously, the statute contemplates that the petition’s description of property ownership may well be a disputed matter in the partition action, i.e., an accurate description would not be a jurisdictional requirement.
In short, K.S.A. 60-1003 does not require that all owners of the entire tract involved in a partition must be made parties to obtain a valid partition, as defendants contend. Support for the defendant’s assertion, which we take the liberty of calling the “mandatory joinder rule” for purposes of this opinion, must come from a source other than the partition statute.
Kansas Case Law
Defendants argue that the holdings in prior Kansas cases have been consistent with their proffered mandatory joinder rule, requiring all owners to be named parties to a partition. However, at oral argument, defendants’ counsel conceded that no Kansas case has specifically held that the failure to name all property owners as parties to a partition action (whether by mistake or by choice) always deprives die district court of subject matter jurisdiction to partition the interests of those property owners who are named parties. We submit that such an absence of explicit precedent is understandable, because the defendants’ premise is not the law in this state.
Defendants first point to High Plains Oil, Ltd. v. High Plains Drilling Program — 1981, Ltd., 263 Kan. 1, 6, 946 P.2d 1382 (1997) (hereafter High Plains), which they believe clearly states that all owners are necessary parties to a partition action. The only vaguely collateral nexus that High Plains has to the issue before us is that it happened to involve a partition suit.
There, a coowner of an interest in an oil and gas lease had mortgaged the leasehold interest before seeking relief in bankruptcy. When another leasehold owner filed a partition action, the mortgagee of the bankrupt coowner sought to enforce the bankruptcy’s automatic stay. The district court concluded that the debtor had no equity in the lease and modified the stay, allowing the partition to proceed. The lease was partitioned and sold, and the proceeds of the sale were paid to the county to satisfy the bankrupt coowner’s delinquent property taxes. The mortgagee appealed, claiming a priority interest in the sale proceeds. The Court of Appeals reversed and remanded; however, on remand the district court again ordered the proceeds be paid to the county. After another reversal by the Court of Appeals, this court granted the county’s petition for review and ultimately determined that the county had priority over the mortgagee’s claims. 263 Kan. at 2-7.
High Plains was a fight between a county and a mortgagee over which one had priority to the proceeds from the sale of a leasehold interest in which the bankrupt owner had no equity. The defendants point to a district court finding that was recited in the appellate decision but which had nothing to do with the opinion’s analysis. Even then, the actual finding was: “K.S.A. 60-1003, the partition statute, is clear that only owners are necessary parties to the action.” 263 Kan. at 6. Obviously, that finding dealt with the fact that neither the owner’s mortgagee nor the county were owners of the property in that case. Moreover, declaring that only owners can be necessary parties is not the same as saying all owners must be necessary parties. High Plains does not support the defendants’ proposed mandatory joinder rule.
Likewise, defendants point us to the century-old partition action in Hazen v. Webb, 65 Kan. 38, 68 Pac. 1096 (1902). Again, the case is distinguished by the intervention of lienholders into the partition action. Moreover, the primary issue involved a district court’s authority upon receiving a partition case after a change in venue.
In Hazen, a coowner transferred an interest in jointly owned property that was subject to judgment hens. The grantee filed a partition action against coowners of a portion of the jointly owned property, and subsequently the venue of that action was changed to another district court. After the change in venue, the lienholders on the grantee’s interest filed an answer and cross-petition that included a demand to partition all properties jointly owned by all the coowners. The cross-petition request that all coowned property be partitioned required joinder of additional coowners, and the receiving court’s authority to order the joinder was the principle issue in the case.
In determining that it had the authority to order the joinder of additional owners and to include all the property in the partition, Hazen noted that the general policy of the law is to avoid a multiplicity of actions. 65 Kan. at 42. Hazen opined that, to effect that general policy, a court of equity which has assumed jurisdiction of a subject matter can reach out and draw in the entire subject matter and all interested parties in order to enter and enforce a full, complete, effectual, and final decree adjusting the rights and equities of all parties in interest. The opinion went on to declare that “[n]o decree will be granted until all necessary parties are before the court, if jurisdiction can be obtained.” 65 Kan. at 42. In applying those principles to the facts in Hazen, the court found:
“[0]n account of the interlacing of interests and the overlapping of hens, that any effectual, enforceable and protective decree might be entered, it was almost an imperative necessity that all of the joint property and all the parties interested therein should be brought before one court in one litigation. For, in no other manner conceivable could an effectual decree determining the several rights and protecting the different interests of all parties be obtained.” 65 Kan. at 41-42.
The general authority of the court in a partition action has been codified in K.S.A. 60-1003(d), entitled “General powers of judge,” which states:
“The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests, or may refuse partition if the same would result in extraordinary hardships or oppression.”
Likewise, “K.S.A. 60-219(a) defines which parties are to be joined in an action as necessary for just adjudication.” Landmark Nat’l Bank v. Kesler, 289 Kan. 528, 535, 216 P.3d 158 (2009).
In other words, Hazen does not tell us anything that we do not already know, i.e., a partitioning court has the equitable and statutory power to order the joinder of parties and property interests, and if the property interests of nonjoined parties are so intertwined with the property subject to partition that their interests will be adversely affected by an adjudication of the action, the court should require their joinder before going forward with the lawsuit. Contrary to the defendants’ interpretation, the case does not instruct us that a partition action can never proceed to judgment without the joinder of all owners of all interests in the subject property, i.e., that all owners are always necessary and indispensable parties in every partition action.
The defendants also cite to Witt v. Sheffer, 6 Kan. App. 2d 868, 636 P.2d 195 (1981), rev. denied 231 Kan. 802 (1982), for its discussion of the “unity of partition rule.” That rule requires that each cotenant have the right to occupy the whole property before the cotenant may bring a partition action. 6 Kan. App. 2d at 870. Here, the cross-petitioner had an interest in all of the surface rights with the corresponding right to occupy the property and unquestionably had standing to bring the partition action. If anything, the rule could cut against the defendants because of their limited right to occupy the property as fractional mineral interest owners. Nevertheless, Witt does not support the defendants’ mandatory joinder rule and is of no benefit to them here.
Finally, defendants attempt to conjure up support from Toklan Royalty Corp. v. Panhandle Eastern Pipe Line Co., 168 Kan. 259, 212 P.2d 348 (1949). There, the assignee of a 60% interest in two oil and gas leases, each subject to a gas purchase contract, was attempting to cancel the contracts without making his assignors and co-owners parties to the action. Because all owners were beneficiaries of the gas purchase contract, this court held that an action for cancellation of that contract could not proceed without joinder of the remaining interest owners. 168 Kan. at 268-69. Again, the lesson to be learned from Toklan is that the determination of a necessary or indispensable party in a particular action turns not on the type of action, e.g., a partition, but rather on whether the court can arrive at a just adjudication without joining that party in the action, i.e., whether the nonjoined party’s interests will be adversely affected by the court’s judgment.
Accordingly, we find that the case law in this state does not support the defendants’ contention that Kansas has a mandatory joinder rule for partition actions, requiring all property owners to be named parties in order to vest the district court with jurisdiction to partition the interests of those owners who are named parties. Rather, a person or entity who challenges a partition judgment based on the failure to join a property owner in the partition action must take the additional step required in any other type of action. The challenger must show that the nonjoined person or entity was a necessary or indispensable party to the action, i.e., that the prop erty interests of the nonjoined party were adversely affected by the judgment partitioning the named parties’ property interests.
Other States
The defendants argue that we should be persuaded by the law in some other states to judicially adopt our own mandatory joinder rule for partition actions. For instance, the defendants are particularly enamored with the South Dakota Supreme Court’s decision in Weitzel v. Felker, 76 S.D. 216, 76 N.W.2d 225 (1956). Weitzel held that a partition action was void where one of the 11 joint tenants was not made a party to the partition proceeding. The court viewed the nonjoined owner as an “ ‘indispensable part[y]’, whose interest is such that a final decree [could not] be entered without affecting” his rights. 76 S.D. at 218, 220. Because he was considered an indispensable party to the partition proceeding, the court held that the judgment entered was void not only as to the unnamed owner, but also as to the other parties who were named in the action. 76 S.D. at 220.
First, we would note that the statutoiy law in South Dakota differed from our 1963 partition statute. The South Dakota statute expressly required that a summons in a partition action “must be directed to all the joint tenants and tenants in common, and all persons having an interest in, or any hen of record by mortgage, judgment, or otherwise, upon the property or upon any particular portion thereof.” S.D. Codified Laws Ann. § 37.1406 (1960 Supp.). See Weitzel, 76 S.D. at 218. As previously noted, the Kansas partition statute does not contain a similar requirement for the issuance of a summons to all owners of all interests, but rather only requires the petition to include a description of the property and ownership interests. See K.S.A. 60-1003.
More importantly, however, a nonjoined joint property owner who would qualify as an indispensable party in a partition action, i.e., whose interest was such that a final decree could not have been entered without adversely affecting his or her rights, could seek relief from the partition judgment in this state based upon his or her status as an indispensable party. See City of Hutchinson, 213 Kan. at 405-06 (finding failure to join indispensable party deprived court of jurisdiction). There is no need to have a special mandatory joinder rule in that circumstance.
Moreover, we discern no compelling policy reason to create a rule in this state that forces a property owner to join all owners of all property interests in order to partition the particular portion of the property in which the petitioner has an interest. For instance, consider the circumstance in which two people jointly own only the surface rights and the severed minerals interest is coowned by numerous persons or entities holding varying interests, e.g., a Ve4 working interest or a Vizs overriding royalty interest. There is no practical, logical, or legal reason for denying the surface owners the right to sever their property interests through a partition action just because they failed to assume the burden of ascertaining, locating, and serving summons on all of the mineral interest owners. The interests of the surface estate and mineral estate in that instance are not so intertwined that a nonjoinder would create a prejudicial, adverse effect. The relief sought by the surface owners will not be impacted by an accurate or even an incorrect determination of how the mineral interest is owned; they will split the surface ownership regardless of who owns the minerals. On the flip side, the mineral interest owners would be totally unconcerned with the surface ownership and would have no desire to assume the financial burden of participating in a lawsuit over the surface rights. A mineral interest owner only wants to know how any mineral production is to be split among the mineral interest coowners. Moreover, especially if there are minerals being produced on the property, the mineral interest owners will likely not want to have their interests partitioned and sold.
Accordingly, we decline to create a new mandatory joinder requirement for partition actions in this state. The efficacy of a judgment in a partition action in which less than all owners were named parties must turn on whether the property interest of a nonjoined owner has been prejudiced or adversely affected by the partition judgment.
Other Arguments
Defendants point to a statement in the McGintys’ response to the defendants’ summary judgment motion to argue that the McGintys have admitted that all property owners are necessary for a valid partition. We need not consider whether the statement is an admission. Parties are not permitted to define the law for the courts through agreements, admissions, or stipulations. See Bright v. LSI Corp., 254 Kan. 853, 859, 869 P.2d 686 (1994) (litigants’ agreement on legal questions ineffective to bind court).
Defendants also assert that their arguments in this case were raised in the partition action through a motion to strike, upon which the partitioning court did not rule. That is a complaint the defendants should have made in the partition action. We are only concerned with the partitioning court’s final judgment.
Validity of Partition Judgment
After asserting that a court is not permitted to go forward with a partition action without having all owners as named parties, the defendants cite to State ex rel. Secretary of SRS v. Clubb, 30 Kan. App. 2d 1, 4, 39 P.3d 80 (2001), for the proposition that the lack of statutory authority to make a particular order or judgment is akin to a lack of subject matter jurisdiction and is subject to collateral attack as being void.
Standard of Review
The determination of jurisdiction is a legal question subject to unlimited review. State v. Woolverton, 284 Kan. 59, Syl. ¶ 3, 159 P.3d 985 (2007).
Analysis
We first note that the result which the defendants seek is not consistent with their void judgment argument. If the district court did not have subject matter jurisdiction, the entire judgment in the partition action would be a nullity. See In re Marriage of Welliver, 254 Kan. 801, 803, 869 P.2d 653 (1994) (judgment void if court lacked subject matter jurisdiction; void judgment is a nullity). Yet, the defendants allege that only the transfer of the minerals estate is void. They do not explain how the court acquired subject matter jurisdiction over the surface owners if a mandatory joinder of all owners is required to obtain subject matter jurisdiction in a partition action.
Nevertheless, as explained above, we reject the defendants’ underlying premise that a mandatory joinder rule exists in this state and find that a court does have the statutory authority to partition less than all of the property interests of all of the owners of a tract of real estate, so long as the remaining property interests are not adversely affected. Accordingly, we consider the validity of the partition judgment from the viewpoint of each class of defendants: the cross-petitioner; the persons described as property owners in the cross-petition (listed owners); the persons not identified as owners in the cross-petition, but who were named as parties in the consolidated action and were served with the cross-petition (unlisted participating owners); and the persons who were not parties in the consolidated action and were not served with the cross-petition (nonjoined parties).
Nonjoined Parties
Obviously, an owner of a fractional minerals interest who was not joined in a partition action that resulted in a sheriff s sale of that interest to a third party would be adversely affected. See Walker v. Hutchinson City, 352 U.S. 112, 115, 1 L. Ed. 2d 178, 77 S. Ct. 200 (1956) (due process requires that an owner whose property is taken be served with proper notice); Chapin v. Aylward, 204 Kan. 448, 454, 464 P.2d 177 (1970) (due process requires that notice of legal proceedings be given by means reasonably calculated to inform all parties whose legal rights are directly and adversely affected)-, Pierce v. Board of County Commissioners, 200 Kan. 74, 84-85, 434 P.2d 858 (1967) (failure to provide direct service denied landowners due process when their property interests were sold at tax foreclosure sale).
However, in this quiet title action, the McGintys are not claiming that they acquired the 50% mineral interest upon which the owners thereof were not served with the amended cross-petition for partition of the subject tract. Accordingly, those owners still have their respective interests in the subject tract and still possess all incidents of ownership accorded to fractional mineral interest owners. Based upon McGintys’ limited claim of ownership, there was no taking of the nonjoined parties’ mineral interests and there is no due process violation. Moreover, the adjudication of the other property interests has not prejudicially affected the nonjoined owners’ property interests. Therefore, the nonjoined owners have no basis upon which to challenge the validity of the sheriff s sale or, for that matter, any incentive to do so.
Cross-petitioner
Lester, Jr., filed the cross-petition which requested a partition of the entire interest in the subject tract without excepting or reserving any minerals interest. See Central Natural Resources v. Davis Operating Co., 288 Kan. 234, 242, 201 P.3d 680 (2009) (“all minerals belong to the landowner and are considered part of the realty so long as they reside on, in, or under the land”). The district court’s sale confirmation order gave the cross-petitioner the relief that he requested, a purported sale of the entire tract. Then, because the cross-petition inaccurately described Lester, Jr.’s, ownership interest as including the 80% of the minerals in which he did not have an interest, he theoretically received more compensation for his partitioned interest than he was entitled, if one assumes that part of the sheriff s sale proceeds are allocable to the mineral estate. While Lester, Jr., might now be experiencing seller’s remorse because of the current value of the mineral interest, he has no basis to assert that the nonjoinder of other mineral interest owners in the partition action, for which he was solely responsible, violated his right to due process or adversely affected his property interest. The partition judgment is valid as to him.
Listed Owners
In addition to the cross-petitioner, the other successors to Lester’s interest of all of the surface interest and 20% of the mineral interest were listed in the cross-petition as owners of the subject tract and fully participated in the partition proceedings. They were all represented by counsel, and a guardian ad litem was appointed to represent any minors.
Nevertheless, defendants suggest that even the named, participating property owners were denied due process because the cross-petition failed to notify them that the mineral estate was being partitioned. To the contrary, identifying the property to be partitioned by its legal description, without noting any exceptions or reservations, put the parties on notice that the entire estate was involved. See Central Natural Resources, 288 Kan. at 242 (minerals considered part of the realty). The represented owners had ample opportunity to challenge or be heard on the question of the extent of the property to be partitioned. There was no due process violation.
Further, defendants argue that the mineral interest was not part of the sheriff s sale because neither the court documents nor the sheriffs deed specifically described the mineral interests. Again, defendants have it backward. Neither the court documents nor the sheriff s deed purported to except or reserve the mineral interests. See K.S.A. 58-2202 (every real estate conveyance passes all of grantor’s estate unless intent to pass less is expressed or necessarily implied in terms of grant). As noted, the sheriffs deed expressly stated that, in conformance with the court’s order, it was conveying all interests of all plaintiffs and defendants in the consolidated partition action.
Moreover, Lester’s successors accepted the proceeds of the sheriff s sale, which as noted were in excess of what they were entitled. They did not file a direct appeal challenging the form of the pleadings, the description of the property, or the order of sale. At this late date, they have no basis on which to collaterally attack the judgment. See K.S.A. 60-2103(a) (“the time within which an appeal may be taken shall be 30 days from the entry of the judgment”); Hawkinson v. Bennett, 265 Kan. 564, 589, 962 P.2d 445 (1998) (collateral estoppel may be invoked where the parties are the same or in privity, the rights and liabilities of the parties on the issue was decided by judgment on the merits, and the issue was necessary to support the judgment).
Unlisted Participating Owners
As an alternative argument, the defendants contend that only the 20% mineral interests owned by the listed owners, Lester’s successors, was transferred by the sheriff s deed. Although defendants repeatedly refer to the remaining 80% of the mineral estate, the 50% interest that the McGintys do not claim is not in issue in this quiet title action. Effectively, then, the alternative position is that the McGintys did not acquire the 30% of the mineral interests owned by the parties that were served with the cross-petition but were not described as owners, i.e., Helen and W.L., Jr.
In addition to the arguments asserted above, the defendants contend that the failure to describe Helen and W.L., Jr., as owners deprived them of adequate notice and service with respect to a partition of their mineral interests. However, as noted, both unlisted owners were served with the cross-petition for partition, which included a description of the entire subject tract. Both had the opportunity to file an answer, pursuant to K.S.A. 60-1003(b), denying the alleged interests of any of the plaintiffs or defendants. In fact, Helen filed an answer to the cross-petition in which she affirmatively disavowed having any ownership interest in the subject tract. Accordingly, when the court ordered the sheriff to sell and convey “all of the right, title and interest which the plaintiffs and the defendants have or claim to have in and to said real estate,” the sale included the mineral interests of Helen and W.L., Jr.
Granted, the partition judgment erroneously excluded Helen and W.L., Jr., from the allocation of the sheriffs sale proceeds. However, their claim for a share of the sale proceeds was against the other parties, specifically Lester’s successors, and not against a purchaser at the sheriff s sale who had no involvement in the partition action. Having failed to protect their interests in the partition action when given the opportunity to do so, Helen and W.L., Jr., cannot now assert their interests in this quiet title action.
The defendants also rely on the testimony of Emerson Shields, who was an attorney involved in the partition action. He testified that he learned from the abstractor that only one-fifth of the mineral interest was involved in the lawsuit and that he had announced at the sheriffs sale that the conveyance would be subject to a four-fifths mineral reservation. Shields also alleged that he had prepared a contract that included the reservation of mineral rights, which he says Letha McGinty signed, albeit a signed contract was not introduced into evidence in this action. The defendants contend that the McGintys knew or should have known they were only buying 20% of the mineral estate.
However, “[w]hen a deed is delivered and accepted as performance of a contract to convey, the contract is presumed to be merged in the deed.” Palmer v. The Land & Power Co., 172 Kan. 231, 237, 239 P.2d 960 (1952). Specifically, if an agreement provides for a mineral reservation, but the deed contains no provision for a mineral reservation, the inference is that the agreement for a mineral reservation “was waived and superseded by the deed.” 172 Kan. at 237. Here, the sheriff s deed contained no mineral reservation with respect to the interests of the plaintiffs and defendants in the partition action.
In a related argument, defendants contend that a sheriff s deed is akin to a quitclaim deed in that it only transfers the interest which the grantor possessed at the time of the transfer. We do not need the analogy. K.S.A. 60-2416 provided that a sheriffs deed “shall vest in the purchaser as good and perfect an estate in the premises therein mentioned as was vested in the person or persons against whom the . . . order was issued.” Moreover, a sheriffs deed is construed with the judicial proceedings of which it forms a part, and it “conveys no greater title than is authorized by the judicial proceedings.” Aguilera v. Corkill, 201 Kan. 33, 36, 439 P.2d 93 (1968). Here, the judicial proceedings authorized the sale of the entire tract, without mineral reservation. The participants in the partition action were vested with 50% of the mineral estate. Therefore, the sheriff s deed conveyed that one-half mineral interest.
Summary Judgment
Standard of Review
This court’s review of a decision based on summary judgment is well settled:
“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.]’ ” Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009) (quoting Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 [2007]).
The district court’s memorandum decision noted, that there were many controverted facts listed in the parties’ motions and responses. The defendants use that statement as support for their argument that summary judgment was inappropriate because of the existence of disputed material facts. See Shamberg, 289 Kan. at 900 (summary judgment proper when there is no genuine issue as to any material fact.)
Unfortunately, the defendants are unclear as to what facts need to be resolved in order to apply the law and decide the case. See State v. Conley, 287 Kan. 696, 703, 197 P.3d 837 (2008) (“ ‘" ‘Simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority or in the face of contrary authority, is akin to failing to brief an issue.’ ” ’ ”) (quoting State v. Torres, 280 Kan. 309, 321, 121 P.3d 429 [2005]). They do mention that the district court’s finding that Shields’ testimony was not persuasive indicates that the court was weighing evidence. However, that testimony was not material, given that any contract would have merged into the provisions of the sheriff s deed.
The chain of title, the respective ownership interests of the parties, and the identity of the participants in the prior consolidated lawsuit are not contested by the defendants. We discern that all of the material facts necessary to quiet title in the McGintys were not in dispute, and summary judgment was appropriate.
As a subissue, the defendants contend that the district court made a blanket finding that the McGintys own 50% of the mineral estate without stating whose interest is to be taken away to satisfy that one-half interest. Therefore, they argue that if we affirm the district court judgment, a title examiner will be unable to identify the current owners of the mineral estate, which will complicate the division of the nearly one-half million dollars in suspended royalties. We find the argument to be disingenuous, at best.
To begin, this lawsuit is a quiet title action filed by the McGintys. The court’s order clearly and explicitly resolved the issue presented by finding that the McGintys were the owners of the surface rights and one-half of the oil, gas, and other minerals that may be produced from the S/2 NE/4 of 36-21-14, Stafford County, Kansas. The defendants did not counterclaim to quiet title in the remaining 50% of the mineral estate.
Nevertheless, the district court found that the McGintys acquired their one-half mineral interest from those persons who were served with the cross-petition for partition in the prior lawsuit. To spell it out for the defendants, the mineral interest to be “taken away” is the 20% held by those identified in the cross-petition (Lester’s successors), the 20% held by Helen, and the 10% held by W.L., Jr. We are confident that a reasonably competent title examiner can ascertain the current ownership of the mineral interests.
In conclusion, we find that the district court’s granting of summary judgment, quieting title in the McGintys, was appropriate and correct.
Affirmed. | [
-16,
-18,
-3,
28,
56,
96,
43,
-102,
97,
-95,
-11,
83,
-115,
-54,
13,
57,
98,
57,
-59,
104,
-30,
-93,
3,
-64,
-106,
-77,
-39,
-51,
-78,
93,
-12,
-58,
77,
16,
74,
21,
70,
-126,
-49,
28,
-114,
4,
-87,
88,
73,
0,
60,
123,
86,
79,
81,
-113,
114,
41,
29,
67,
9,
46,
-21,
-83,
64,
-8,
-85,
-121,
95,
18,
33,
0,
-100,
-25,
-56,
10,
-110,
52,
40,
-24,
83,
38,
-42,
-12,
27,
-119,
40,
38,
103,
33,
-107,
-17,
-20,
-104,
6,
-2,
-99,
-25,
-122,
24,
35,
64,
-98,
-99,
124,
84,
7,
116,
-26,
5,
28,
124,
-59,
-53,
-42,
-127,
15,
121,
-103,
19,
-29,
-125,
54,
112,
-53,
-94,
92,
71,
120,
27,
15,
-48
] |
The opinion of the court was delivered by
Luckert, J.:
This case arises from the consolidation of an original action in mandamus and a collateral order appeal, both filed by Kansas Medical Mutual Insurance Co. (KaMMCO). KaMMCO seeks relief from a discovery order entered in a pending medical malpractice action. KaMMCO, which is not a party in the underlying medical malpractice action and does not insure the malpractice defendant, argues that the district court failed to “protect [its] privileges, to protect its confidential and proprietary information, [and] to reheve it from the undue burden of complying with the onerous discovery sought.” The plaintiff in the underlying medical malpractice action argues the discovery is reasonably calculated to lead to evidence of bias on the part of the defense expert, who is insured by KaMMCO, and that KaMMCO has not met its burden of establishing the applicability of privileges or the burdensome nature of the discovery.
We first address our jurisdiction and conclude that we lack jurisdiction to consider this appeal under the collateral order doctrine. Consequently, the appeal from the district court’s decision (Case No. 102,164) is dismissed. We find, however, that a writ of mandamus is an available remedy in this case where a nonparty has asserted privileges that could not be protected on a direct appeal from the underlying action. We also conclude that a writ of mandamus is an appropriate remedy because the district court did not perform the duties imposed by this court in Berst v. Chipman, 232 Kan. 180, 653 P.2d 107 (1982), relating to discovery requests served on a nonparty who asserts objections of privilege, confidentiality, irrelevance, and burden. Consequently, we enter a writ of mandamus in Case No. 102,075, granting KaMMCO’s petition in part and denying it in part, and we remand for further proceedings.
Facts and Procedural Background
Jeanette Allen filed the underlying medical malpractice action against William Slater, M.D. During pretrial discovery, Dr. Slater designated Dr. Ted Macy as his expert witness. The use of Dr. Macy as an expert became a point of contention, leading Allen to file a motion to strike Dr. Macy as an expert. Judge Ron Svaty, the district judge presiding over the underlying medical malpractice action, denied the motion but allowed additional discovery regarding Dr. Macy and his opinions. In addition to interrogatories seeking supplementation of Dr. Macy’s opinions and some additional information, Allen served a notice of subpoena duces tecum to take the deposition of officials at KaMMCO. Dr. Macy is an insured of KaMMCO, and Allen believed this formed a connection between Dr. Macy and Dr. Slater because Dr. Slater testified at his deposition that he was insured “by KaMMCO or a branch of KaMMCO.”
Allen, in the “Notice to Take Deposition and Subpoena Duces Tecum," included a section labeled “Background and Basis for Subpoena.” As part of that background, Allen noted that Ka-MMCO is a “ ‘member-owned’ insurance company providing insurance protection for health care professionals.” Quoting information from KaMMCO’s website, Allen pointed out that KaMMCO “recognizes that ‘avoiding claims and their financial consequences’ is important to health care professionals” and that KaMMCO “has established a claims policy that ‘aggressively defends members.’ ” Allen further quoted other statements on the website that referred to building a “ ‘defense team’ ” and to “the importance of a strong defense, ardent support, and ‘member involvement.’ ” Allen concluded the background and basis section of the document by stating: “One of the ‘duties and responsibilities’ of a KaMMCO Insurance Claim Adjustor/Medical Liability Analyst is to ‘locate and obtain experts.’ . . . Defendant William Slater, M.D., and his designated expert witness, Ted Macy, M.D. are fellow members of KaMMCO.”
Allen then made the following requests:
“1. Please designate and make available to testify the KaMMCO representaüve(s) most knowledgeable in the areas of‘member-owner’ benefits, interests and duties;
“2. Please designate and make available to testify the KaMMCO representaüve(s) most knowledgeable in the areas of ‘aggressive member defense and protection,’ including any advice, suggestions, tips and/or guidelines for giving testimony for both (a) members being sued for malpractice and (b) members who serve as defense expert witnesses in malpractice cases;
“3. Please designate and make available to testify the KaMMCO representative(s) most knowledgeable in the areas of the benefits of ‘avoiding the financial consequences of claims,’ including the financial impact of the cost of claims on the cost of insurance premiums;
“4. Please designate and make available to testify the KaMMCO representative(s) most knowledgeable in the areas of the methods, policies and procedures utilized when ‘locating and obtaining’ the expert witness services of Dr. Macy in this case; the nature and scope of Dr. Macy’s ‘member involvement’ as an expert witness on Dr. Slater’s ‘defense team’ in this case; the identities of any KaMMCO personnel who have had any contact with Dr. Macy regarding this case; and the information exchanged between KaMMCO and Dr. Macy regarding this case.
“5. Please designate and make available to testify the KaMMCO representative^) most knowledgeable in the areas of any claims, with the exception of the claim by Jeanette Allen, reviewed by Dr. Macy for KaMMCO, regardless of whether any written report or expert testimony followed;
“6. Please designate and make available to testify the KaMMCO representative(s) most knowledgeable in the areas of any claims reviewed by Dr. Slater for KaMMCO, regardless of whether any written report or expert testimony followed;
“7. Please designate and make available to testify the KaMMCO representative(s) most knowledgeable in the areas of the history of any claims against Dr. Macy while a member of KaMMCO, regardless of whether a lawsuit was filed or compensation was paid; and
“8. Please designate and make available to testify the KaMMCO representaüve(s) most knowledgeable in the areas of the history of any claims against Dr. Slater while a member of KaMMCO, regardless of whether a lawsuit was filed or compensation was paid.”
In addition, the notice states that all designated deponents shall produce copies of the following documents at the deposition:
“1. All written materials, including but not limited to seminar materials and correspondence, used by KaMMCO in any fashion to educate members regarding the subjects of malpractice claim defense, including any tips on how to properly give a deposition and/or testify at trial, applicable to both defendants and defense expert witnesses;
“2. All written materials received from Dr. Slater pursuant to the contract of malpractice insurance between KaMMCO and Dr. Slater which provides coverage for Jeanette Allen’s claim. If any materials have been received from' Dr. Slater, this request is intended to cover all materials received for any puipose, excepting only those materials which are claimed to be privileged. . . .;
“3. All written materials received from Dr. Slater for any application(s) for malpractice insurance between KaMMCO and Dr. Slater. This request includes all years in which Dr. Slater made applications for coverage. . . .;
“4. All written materials received from Dr. Macy for any application(s) for malpractice insurance between KaMMCO and Dr. Macy. This request includes all years in which Dr. Macy made applications for coverage. . . .;
"5. All written materials sent by KaMMCO to Dr. Slater concerning his apphcation(s) for malpractice insurance. . . .;
“6. All written materials sent by KaMMCO to Dr. Macy concerning his apphcation(s) for malpractice insurance. . . .;
“7. All Risk Management Surveys concerning Dr. Slater. If there are any documents concerning KaMMCO’s evaluation or analysis of the underwriting risk of Dr. Slater, please produce the same. . . .;
“8. All Risk Management Surveys concerning Dr. Macy. If there are any documents concerning KaMMCO’s evaluation or analysis of the underwriting risk of Dr. Macy, please produce the same. . . .;
“9. All compliance surveys, reviews or reports concerning Dr. Slater. . . .;
“10. All compliance surveys, reviews or reports concerning Dr. Macy. . . .;
“11. All medical records obtained by KaMMCO from any source concerning Jeanette Allen;
“12. All documents, other than medical records, received by KaMMCO from any source concerning Jeanette Allen. . . .; and
“13. All documents, other than medical records, sent by KaMMCO to anyone concerning Jeanette Allen.”
At the end of every document demand except those in paragraph 1 and 11, Allen ended the request with the following statement: “If any materials are claimed to be privileged, please provide a privilege log which identifies the material claimed to be privileged and specifies the basis for each privilege claimed. ([S]ee Cyprus Media, Inc., v. City of Overland Park, 268 Kan. 407, 997 P.2d 681 [2000]).”
Within days of receiving a copy of the subpoena, Dr. Slater filed a motion for a protective order. He raised several objections to Allen’s attempt to seek discovery from KaMMCO, including several procedural issues. In addition, he objected on the grounds that the request sought (1) “confidential and protected health information of patients who have filed claims or lawsuits against Dr. Slater and/or Dr. Macy”; (2) “information/documentation of prior settlements” the disclosure of which “would necessarily invade the confidentiality provisions contained in prior settlement[s]”; and (3) information that has not been “shown to be relevant to the present lawsuit and cannot lead to the discovery of admissible evidence.”
KaMMCO then filed a “Motion to Quash and/or Motion for Protective Order,” seeking relief from the subpoena. KaMMCO noted it was not a party in the case and asserted eight grounds for quashing the subpoena: (1) the information was “not relevant or likely to lead to the discovery of evidence of admissible evidence in this medical malpractice case”; (2) the factual information was available from other sources, in particular from Dr. Slater and any designated expert; (3) the requests would require a search of “all of its corporate records as it pertains to its insurance provided to the defendant and defendant’s named expert” and that search would be burdensome; (4) information regarding insurance coverage is not admissible “in this type of case”; (5) the requests are “broad enough to invade the attorney-client privilege”; (6) the requests are “broad enough to invade the attorney work product doctrine”; (7) the requests are “broad enough to invade the insurance claim file and matters investigated and processed at the request of an attorney”; and (8) the requests are “prohibited from discovery under the Kansas Peer Review laws.” Expanding on these objections, KaMMCO argued that there is no connection between the outcome of the medical malpractice action and KaMMCO’s or Dr. Macy’s financial interests and that Allen failed to provide any basis for the district court to find otherwise.
In her written response, Allen asserted that the requested information pertained to potential bias arising from the financial interests of Dr. Slater and Dr. Macy with regard to the outcome of the medical malpractice action. In responding to KaMMCO’s motion to quash, Allen explained the basis for the potential bias: “As a physician who purchases malpractice insurance from KaMMCO, Dr. Macy may well have a financial interest in the outcome of this litigation as the cost of defense and payment of claims may affect the cost of Dr. Macy’s insurance premiums.” Allen also argued she was not seeking any confidential or protected information and that it was too early for the district court to determine what evidence would be admissible. In a supplemental response, Allen raised concern about the discrepancy in information, since KaMMCO asserted it did not insure Dr. Slater, but Dr. Slater had stated that he was insured by KaMMCO. Allen emphasized the need for discoveiy to clarify this question.
The district court conducted a hearing on the motion, and during the hearing it became even more apparent that there was a misunderstanding about whether Dr. Slater was insured through KaMMCO. KaMMCO offered to provide an affidavit regarding whether it provided any coverage.
Shortly after the hearing, KaMMCO submitted affidavits of Karolyn Scanlon, Underwriting Manager for KaMMCO, and Kurt Scott, Chief Operating Officer for KaMMCO. Both affidavits confirmed that Dr. Slater is not now nor has he ever been insured by KaMMCO. Both affiants averred that KaMMCO acts only as the servicing carrier of Dr. Slater’s insurer, the Kansas Health Care Provider Insurance Availability Plan (the Plan). A “servicing carrier,” according to Scott, is essentially an administrator. Scott further indicated that “KaMMCO does not now nor has it ever had a financial ownership or investment interest in the Plan” and, while KaMMCO receives a fee to act as the Plan’s servicing carrier, the fee is “not dependant upon, or impacted by, the number of dismissals or defense verdicts obtained” for physicians insured by the Plan. In other words, “KaMMCO does not have any KaMMCO money at risk if a judgment or setdement is obtained against a Plan physician.”
Following the filing of the KaMMCO affidavits, numerous motions were filed regarding discovery disputes, including a motion for hearing filed by Allen. In this motion, Allen acknowledged the contents of the affidavits submitted by KaMMCO representatives and admitted that “Dr. Macy may not have an obvious financial interest in the outcome of this claim as a member-owner of KaMMCO.” Nevertheless, she claimed that other bias might be shown because of KaMMCO’s “defense-oriented programs and materials.” Allen also argued that “KaMMCO, the servicing carrier of [the Plan], may be in possession of information and evidence relating to defendant’s last-resort malpractice coverage through [the Plan.]”
After additional briefing and a hearing to settle Allen’s proposed journal entry which allowed her to conduct discovery of KaMMCO without limitation, the district court entered its discovery order over KaMMCO’s objections. Regarding privileged information, the district court stated at the hearing that KaMMCO’s objections should be raised during production and that KaMMCO was prematurely “trying to make these objections before they even start.” The court indicated that KaMMCO’s objections seemed to “be another delay tactic.” Counsel for KaMMCO asserted that “regardless of what the journal entry says, we don’t have to produce privileged material. . . . We’re not going to give it to them.” The district court agreed that KaMMCO was not obligated to provide privileged material.
At the same hearing, counsel for KaMMCO also requested that confidential or proprietary information be produced “in a setting where it’s safe from disclosure to parties who don’t need it, meaning other attorneys and people who aren’t party to this action.” Counsel for Allen was not agreeable to this request because “I have numerous attorneys that are interested in this issue across the state” and “I’m the chairman of the medical malpractice committee in the state of Kansas, and every attorney on that committee is vitally interested in this information and they have all contributed to the briefing and the work in this case.” After taking time to review the file, the district court denied KaMMCO’s request for a protective order and ordered KaMMCO to respond to Allen’s subpoena. The court made no specific mention of a privilege log or an in camera inspection of requested information.
Afterward, KaMMCO acknowledged that some of the information sought in Allen’s subpoena was not privileged or confidential, and it was “willing to produce a witness to testify to the nonprivileged, nonproprietary information” and was willing to “produce non-privileged, non-proprietary documents responsive to the Subpoena as well.” KaMMCO also expressed a willingness to produce a witness to testify “only as to the identities of any KaMMCO personnel who have had contact with Dr. Macy regarding this case.” This effort was apparently rejected by Allen.
Another hearing was held on Allen’s motion to enforce the district court’s discovery order and on KaMMCO’s request for certification of the discovery issue for interlocutory appeal. At the hearing, Allen argued, inter alia, that pursuant to Cypress Media, Inc., 268 Kan. 407, KaMMCO should produce a privilege log identifying any documents claimed to be privileged, in lieu of requiring production of such material directly to Allen. No privilege log was ordered. As for KaMMCO’s request for certification for interlocutory appeal, it appears the district court denied it, although we can find no specific ruling in the record on appeal.
These events led to KaMMCO filing an original action in mandamus seeking a writ requiring the district court to follow Berst, 232 Kan. 180. Then, KaMMCO filed an appeal in the Court of Appeals, using the collateral order doctrine as a basis. Subsequently, the collateral order doctrine appeal was transferred to this court and the cases were consolidated. In both the appeal and the petition for writ of mandamus, KaMMCO seeks relief to protect its privileged or confidential information, to relieve it from the undue burden of complying with an “onerous” discovery request and to permit only requests which are likely to lead to the discovery of admissible evidence.
KaMMCO also sought a stay of the enforcement of the subpoena. This court granted the request and ordered that “until the consolidated action is finally decided by this court, all other district court proceedings in Allen v. Slater are stayed, as jurisdiction over the matter now resides in this court alone.” The district judge advised this court that, pursuant to Supreme Court Rule 9.01(c) (2010 Kan. Ct. R. Annot. 75), he will not respond in this matter.
Jurisdiction
A preliminary question to be considered in this case is whether this court has jurisdiction to review the district court’s discovery order under (1) the collateral order doctrine, a narrow exception to the general rule that only final orders may be appealed as a matter of right or (2) the petition for writ of mandamus.
Standard of Review
Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. Harsch v. Miller, 288 Kan. 280, 286, 200 P.3d 467 (2009); Flores Rentals v. Flores, 283 Kan. 476, 480, 153 P.3d 523 (2007). Exercising this review, an appellate court has a duty to dismiss an appeal when the record discloses a lack of jurisdiction. Flores, 283 Kan. at 480; Max Rieke & Brothers, Inc. v. Van Deurzen & Assocs., 34 Kan. App. 2d 340, 342-43, 118 P.3d 704 (2005).
Appellate Jurisdiction
Appellate jurisdiction is defined by statute; the right to appeal is neither a vested nor a constitutional right. The only reference in the Kansas Constitution to appellate jurisdiction demonstrates this principle, stating the Kansas Supreme Court shall have “such appellate jurisdiction as may be provided by law.” Kan. Const., art. 3, § 3. Under this provision, this court may exercise jurisdiction only under circumstances allowed by statute; this court does not have discretionary power to entertain appeals from all district court orders. See Meddles v. Western Power Div. of Central Tel. & Utilities Corp., 219 Kan. 331, 333, 548 P.2d 476 (1976); Henderson v. Hassur, 1 Kan. App. 2d 103, 105-06, 562 P.2d 108 (1977).
As part of the Kansas Legislature’s desire to reduce the chances of piecemeal appeals, it limited civil appeals to certain circumstances. See K.S.A. 2009 Supp. 60-2102. As discussed in Flores, these legislative categories of appeal include: (1) final decisions and certain court orders under K.S.A. 2009 Supp. 60-2102(a) and (b), which are of right, and (2) interlocutory appeals under K.S.A. 2009 Supp. 60-2102(c), which require findings that are within the discretion of a district court, and acceptance of the appeal by the Court of Appeals, which is a determination within its discretion. Flores, 283 Kan. at 481. The legislature has not authorized parties to “unilaterally appeal from any or all orders of the district court in the middle of litigation with the hope, perhaps vain, that the appellate court will ultimately decide that the order is indeed properly appealable.” Harsch, 288 Kan. at 287; see Johnson v. Johnson, 219 Kan. 190, 193, 547 P.2d 360 (1976) (Supreme Court has exclusive responsibility of determining whether its jurisdiction has been properly invoked).
The first of the statutorily recognized categories for an appeal— those authorized by K.S.A. 2009 Supp. 60-2102(a)(4) and (b) as a matter of right — allows an appeal from a “final decision.” The term “final decision” has been construed to mean “ ‘one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court.’ ” Gulf Ins. Co. v. Bovee, 217 Kan. 586, 587, 538 P.2d 724 (1975). Here, the parties do not dispute that the district court’s discovery order is not a “final” order in the sense of disposing of the entire merits of the underlying malpractice action. Likewise, we can reach no other conclusion because a discovery order is not a final disposition of the medical malpractice action. See, e.g., Cimarex Energy Co. v. Board of Seward County Comm'rs, 38 Kan. App. 2d 298, 303, 164 P.3d 833 (2007) (discovery order issued by Board of Tax Appeals in equalization proceeding was not a final order on the merits of the proceeding); 15B Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3914.23, p. 123 (2d ed. 1992) (“[T]he rule remains settled that most discovery rulings are not final.”). Neither is it an order specified as appealable under K.S.A. 2009 Supp. 60-2102(a)(l), (2), and (3). Consequently, KaMMCO’s appeal does not fall under K.S.A. 2009 Supp. 60-2102(a).
As to the second of the statutorily recognized categories for an appeal — an interlocutory appeal governed by K.S.A. 2009 Supp. 60-2102(c) — KaMMCO failed in its attempt to obtain interlocutory certification in the district court. An interlocutory appeal is not an appeal of right; rather, it is subject to the court’s discretion and an order denying a request for interlocutory appeal is not itself an appealable order. Consequently, the district court’s decision to deny interlocutory certification is not before this court for consideration as a basis of jurisdiction. See Harsch, 288 Kan. at 289-90 (discussing nonappealable order); Reed v. Hess, 239 Kan. 46, 53-54, 716 P.2d 555 (1986) (discovery orders are generally deemed interlocutory and thus nonappealable by the parties as interlocutory appeals; review of pretrial discovery orders has generally been denied because they can be effectively reviewed after final judgment); see also United States v. Fei Ye, 436 F.3d 1117, 1122 (9th Cir. 2006) (stating that discovery orders are generally interlocutory and nonappealable).
Hence, KaMMCO’s appeal is not authorized on either of these procedure grounds, leading KaMMCO to assert the collateral order doctrine as a basis for the appeal.
Collateral Order Doctrine
The collateral order doctrine was recognized by the United States Supreme Court as a “very narrow exception” to the final order requirement. Flores, 283 Kan. at 481-82; see Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-69, 98 S. Ct. 2454, 57 L. Ed. 2d 351 (1978); Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). Federal statutes, like those in Kansas, grant appellate jurisdiction over “final decisions of the district courts.” 28 U.S.C. § 1291 (2006). However, the United States Supreme Court has determined that § 1291 allows appellate courts to reach “not only judgments that ‘terminate an action/ but also a ‘small class’ of collateral rulings that, although they do not end the litigation, are appropriately deemed ‘final.’ [Citation omitted.]” Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 106, 130 S. Ct. 599, 175 L. Ed. 2d 458 (2009).
Kansas has adopted the United States Supreme Court’s collateral order doctrine. As that doctrine is applied in Kansas, to be collaterally appealable, the order must “ ‘(1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.’ [Citation omitted.]” Flores, 283 Kan. at 482. The collateral order doctrine is applied sparingly in Kansas, and the policy of hmiting categories of appeals is reflected in the Flores court’s holding that “[t]here is no sound policy to liberalize the [collateral order] doctrine, especially when the opportunity exists for an interlocutory appeal if the Court of Appeals is persuaded, in the exercise of its discretion, to allow the appeal. [Citation omitted.]” Flores, 283 Kan. at 490. More recently, in Harsch, 288 Kan. at 290, this court emphasized that a party is in a risky position when relying on the collateral order doctrine.
Recently, in Mohawk Industries, Inc., 558 U.S. at 103, the United States Supreme Court considered whether the collateral order doctrine applied to an appeal from discoveiy orders that were arguably adverse to the attorney-client privilege and held such orders do not qualify for immediate appeal under the collateral order doctrine. The Court determined that “[p]ostjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege.” Mohawk, 558 U.S. at 103. Hence, the Court refused to apply the collateral order doctrine. The decision provides at least some guidance for this court in the present case.
In Mohawk, the underlying dispute arose when Carpenter sued his former employer, Mohawk, claiming that the company fired him after it failed to force his silence about the company’s alleged hiring of undocumented immigrants. A key feature of Carpenter’s allegation involved a discussion he had with Mohawk’s counsel, and Carpenter filed a motion in the district court to compel disclosure of information about that meeting. Mohawk maintained that the requested information was protected by the attorney-client privilege. The district court agreed that the privilege applied, but it also determined that Mohawk had implicitly waived the privilege through its representations in a class action suit against Mohawk that also concerned the hiring of undocumented workers.
Mohawk filed a notice of appeal and a petition for a writ of mandamus in the Eleventh Circuit Court of Appeals. The Eleventh Circuit dismissed the appeal for lack of jurisdiction under 28 U.S.C. § 1291, holding that the district court’s ruling did not qualify as an immediately appealable collateral order. Carpenter v. Mohawk Industries, Inc., 541 F.3d 1048, 1052 (11th Cir. 2008).
The United States Supreme Court agreed with the federal circuit court, explaining that the decisive consideration is whether delaying review until the entry of final judgment “ would imperil a substantial public interest’ or ‘some particular value of a high order.’ ” Mohawk, 558 U.S. at 106 (quoting Will v. Hallock, 546 U.S. 345, 352-53, 126 S. Ct. 952, 163 L. Ed. 2d 836 [2006]). In making this determination, the Court looked not to the “ ‘individualized jurisdictional inquiry’ ” but to “ ‘the entire category to which the claim belongs.’ ” Mohawk, 558 U.S. at 107 (quoting Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S. Ct. 1992, 128 L. Ed. 2d 842 [1994], and Coopers & Lybrand, 437 U.S. at 473).
The Supreme Court observed that it routinely requires litigants to wait until after final judgment to vindicate valuable rights, including rights central to our adversarial system. See, e.g., Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 426, 105 S. Ct. 2757, 86 L. Ed. 2d 340 (1985) (holding an order disqualifying counsel in a civil case did not qualify for immediate appeal under the collateral order doctrine); Flanagan v. United States, 465 U.S. 259, 260, 268, 104 S. Ct. 1051, 79 L. Ed. 2d 288 (1984) (reaching the same result in a criminal case, notwithstanding the Sixth Amendment to the United States Constitution rights at stake).
With regard to the attorney-client privilege, the Supreme Court rejected Mohawk’s contention that the right to maintain attorney- client confidences would be “irreparably destroyed” unless adverse privilege rulings are immediately appealable. Mohawk, 558 U.S. at 108. Recognizing the importance of the privilege, the Mohawk Court stated: “The crucial question, however, is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders.” Mohawk, 558 U.S. at 108. The Court concluded the likely “institutional costs” of bringing privilege-related orders under the framework of the collateral order doctrine outweigh any potential benefits. Mohawk, 558 U.S. at 112. The Court expressed concern that if it approved collateral order appeals in the context of confidentiality or privilege many more litigants “would also likely seek to extend such a ruling to disclosure orders impheating many other categories of sensitive information, raising an array of line-drawing difficulties.” Mohawk, 558 U.S. at 113; see also Addison v. State, 173 Md. App. 138, 160, 917 A.2d 1200 (2007) (the idea that an issue is not effectively reviewable after termination of trial, as element for immediate appeal of interlocutory order under common-law collateral order doctrine, because it involves a “right” to avoid the trial itself, should be limited to double jeopardy claims and very few other extraordinary situations; otherwise, there would be a proliferation of appeals under the collateral order doctrine).
The Mohawk Court pointed out that appellate courts can remedy the improper disclosure of privileged material in the same way they remedy other erroneous evidentiary rulings — by vacating an adverse judgment and remanding for a new trial in which “the protected material and its fruits are excluded from evidence.” Mohawk, 558 U.S. at 109. Responding to Mohawk’s assertion that ordering disclosure of privileged information encroaches on the confidentiality of attorney-client communications, the Court stated that “deferring review until final judgment does not meaningfully reduce the ex ante incentives for full and frank consultations between clients and counsel.” Mohawk, 558 U.S. at 109. The Court found no “discernible chill” is likely.
Further, the Mohawk Court noted that a collateral order appeal is not the only method of seeking relief: (1) a party may ask the district court to certify, and the Court of Appeals to accept, an interlocutory appeal, and (2) in extraordinary circumstances, a party may petition an appellate court for a writ of mandamus. “Another long-recognized option,” stated the Court, “is for a party to defy a disclosure order and incur court-imposed sanctions.” Mohawk, 558 U.S. at 111. In concluding that sufficiently effective review of adverse attorney-client privilege rulings can be had without resort to the collateral order doctrine, the Court reiterated that the class of collaterally appealable orders must remain “ ‘narrow and selective in its membership.’ [Citation omitted.]” Mohawk, 558 U.S. at 113.
Turning to consideration of these principles in this case, the analysis in Mohawk is helpful in considering KaMMCO’s assertion that Allen seeks privileged or confidential information, including information protected under K.S.A. 2009 Supp. 60-226(b) (work product), K.S.A. 2009 Supp. 60-226(c)(7) (trade secret or other confidential research, development, or commercial information), K.S.A. 60-426 (attorney-clientprivilege), K.S.A. 2009 Supp. 60-427 (physician-patient privilege), K.S.A. 2009 Supp. 65-4915 (peer review privilege), and common-law qualified privileges. Yet, there is one significant difference between this case and the facts of Mohawk. Specifically, unlike the defendant asserting discovery errors in Mohawk, KaMMCO is a nonparty to the underlying lawsuit. Consequently, it is possible that KaMMCO would have no redress on direct appeal of the final outcome of the medical malpractice action. Cf. Com. v. Makara, 980 A.2d 138, 140-41 (Pa. Super. 2009) (discovery orders involving privileged information of third party were appealable as collateral to the principal action; court order granting defendant’s motion seeking disclosure of counseling and educational records of two minor victims was immediately appeal-able as a collateral order in prosecution for sexual abuse of children).
Other courts have determined, however, that a nonparty attempting to appeal an order, not a final judgment, can only obtain a remedy via mandamus. See, e.g., In re Bain, 144 S.W.3d 236, 239 (Tex. App. 2004) (applying proposition that a nonparty may obtain relief from a district court order by way of petition for writ of mandamus to discovery order). An exception to this view has been recognized by the Tenth Circuit Court of Appeals when an order is collateral, separable from the main litigation and related to an injured nonparty but only “ ‘[wjhen and if a subsequent order of the court imposes a harmful sanction.’ [Citation omitted.]” United States v. Feeney, 641 F.2d 821, 824 (10th Cir. 1981); see also United States v. Ryan, 402 U.S. 530, 532, 29 L. Ed. 2d 85, 91 S. Ct. 1580 (1971) (“[0]ne to whom a subpoena is directed may not appeal the denial of a motion to quash that subpoena but must either obey its commands or refuse to do so and contest the validity of the subpoena if he is subsequently cited for contempt on account of his failure to obey.”).
While none of these authorities controls our consideration of the application of the collateral order doctrine, the analysis and policy expressed are consistent with the Kansas analysis of interlocutory appeals and the collateral order doctrine. First, Kansas has a clear policy to avoid piecemeal appeals. Second, our recent case law emphasizes the limited availability of the collateral order doctrine. Third, we have generally followed the United States Supreme Court’s application of the collateral order doctrine. Finally, even if we were to adopt the line of demarcation recognized by the Tenth Circuit Court of Appeals, that line of demarcation would not apply in this case because no sanction or penalty has been imposed. (Hence, we need not decide if we accept this line of demarcation.) In light of those considerations, we find the Supreme Court’s rejection in Mohawk of the application of the collateral order doctrine under circumstances involving the discovery of attorney-client privileged information to be persuasive in the context of this case. We, therefore, conclude that discovery orders that do not impose a sanction on a nonparty do not qualify for appeal under the collateral order doctrine even if the order is potentially adverse to a claim of privilege. Therefore, the district court’s discovery order was not immediately appealable pursuant to K.S.A. 2009 Supp. 60-2102.
Case No. 102,164 is dismissed for lack of jurisdiction.
Mandamus Proceeding
In addition to filing a collateral order doctrine appeal from the district court’s discovery order, KaMMCO filed a petition for writ of mandamus, an alternative avenue of protection mentioned with approval in the Supreme Court’s discussion in Mohawk. KaMMCO argues mandamus is appropriate because it is facing “irreparable harm” and because it is a nonparty to the underlying case that is left without recourse on direct appeal.
Allen responds that KaMMCO’s irreparable harm argument is unpersuasive in that another nonparty, the Kansas Health Care Stabilization Fund (the Fund), under virtually identical discovery orders, underwent similar discovery — a corporate representative of the Fund having been deposed — without the disclosure of privileged or confidential information. Allen states that she was able to successfully discover evidence of potential bias and financial interests shared by Dr. Slater and Dr. Macy without causing irreparable harm to the Fund. Factually, this argument is dependent on matters outside our record; while the record includes the subpoena duces tecum served on the Fund and the Fund’s motion to quash, it does not contain information to allow us to evaluate whether privileged information was disclosed. We, therefore, cannot rely on this argument as a basis for our ruling. Nevertheless, Allen also raises legal arguments. Specifically, she argues that mandamus is inappropriate because the discovery order involves the district court’s discretionaiy role and, alternatively, because an order of mandamus would be premature since the district court has not conducted an in camera inspection of the allegedly privileged or confidential information.
The legal context for these arguments begins with the Kansas Constitution, which provides this court with original jurisdiction for proceedings in mandamus. Kan. Const, art. 3, § 3. In addition, K.S.A. 60-801 provides: “Mandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.”
Because this provision is limited to performance of a “duty,” generally, as Allen suggests, a district court’s discretion cannot be controlled by mandamus. She is further correct in noting that ordinarily “[c]ontrol of discovery is entrusted to the sound discretion of the district court, and orders concerning discovery will not be disturbed on appeal in the absence of clear abuse of discretion. [Citations omitted.]” Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 704, 952 P.2d 1286 (1998).
However, as previously noted, the Mohawk Court recognized mandamus as a potential remedy under some circumstances when a claim of privilege has been raised during discovery. The same conclusion has been reached by this court in several cases recognizing that, although a district court’s discretion cannot be controlled by mandamus, mandamus may be invoked where an order of the district court denies a right or privilege which exists as a matter of law, and there is no remedy by appeal. E.g., S.M. v. Johnson, 290 Kan. 11, 13-14, 221 P.3d 99 (2009); Wesley Medical Center v. Clark, 234 Kan. 13, 16, 669 P.2d 209 (1983); Berst v. Chipman, 232 Kan. 180, 183, 653 P.2d 107 (1982); Nunn v. Morrison, 227 Kan. 730, Syl. ¶ 1, 608 P.2d 1359 (1980); Hulme v. Woleslagel, 208 Kan. 385, 388, 493 P.2d 541 (1972).
Both parties discuss Berst, 232 Kan. 180, at length. In Berst, the National Collegiate Athletic Association (NCAA), a nonparty, filed a petition claiming it had a protectable interest in maintaining the confidentiality of its private investigation into possible rule infractions. An Alabama newspaper sought discovery of this information to aid in its defense of a libel suit. This court recognized the NCAA as a voluntary organization whose self-policing function was to enforce NCAA regulations. Berst, 232 Kan. at 184. The NCAA argued that confidentiality was central to its success as a self-policing system and that a loss of confidentiality in its investigative files and identities of sources would destroy that system. The NCAA sought a protective order, arguing the discovery request was overly broad, the requested documents were not relevant to the libel action, and the information in the documents was confidential. After conducting a hearing but without conducting an in camera review of the documents, the district court denied the protective order.
This court, in considering the petition for writ of mandamus, recognized that, “where an order of the trial court denies a litigant a right or privilege which exists as a matter of law, and there is no remedy by appeal, mandamus may be invoked.” Berst, 232 Kan. at 183. The court also noted another exception to the general rule that a trial court’s discretion cannot be controlled by mandamus; that exception applies “where a petition for mandamus presents an issue of great public importance and concern.” Berst, 232 Kan. at 183. The Berst court found that both exceptions applied to the NCAA’s petition. As to the privilege exception, the court stated: “The petitioners would not have a remedy by appeal as the information sought would irretrievably have been disclosed prior to the time in which an appeal could be taken.” Berst, 232 Kan. at 183.
Focusing on the Berst court’s discussion of the exceptions, Allen at least implies that KaMMCO’s mandamus action should not be allowed because KaMMCO has not argued that the issue in controversy is of “great importance.” This argument is somewhat belied by her counsel’s statements that attorneys are “vitally interested” in this issue. More critically, however, Berst does not limit the availability of mandamus to actions of great importance; rather, the court in Berst recognized the issue-of-great-importance route as one path for invoking mandamus jurisdiction. KaMMCO relies on the alternative route — i.e., the denial of a legal right or privilege that cannot be remedied on appeal. Berst, 232 Kan. at 183; see Wesley Medical Center, 234 Kan. at 16.
In this case, KaMMCO asserts that it should not be burdened with complying with discoveiy that is not relevant to the underlying suit, especially when doing so would cause irreparable harm by allowing confidential or privileged information to be disclosed. Further, because KaMMCO is not a party to the medical malpractice action, it would have no ability to seek review of the order on appeal from the final judgment. Therefore, we conclude that mandamus is an available remedy and that we have jurisdiction to proceed.
Mandamus Remedy
Having determined that mandamus is an available remedy, we now consider whether it is an appropriate remedy.
Standard for Relief
As we turn to the specifics of the propriety of the discovery order, “[t]he burden of showing a right to the relief sought is on the petitioner. Unless the respondent’s legal duly is clear, the writ should not issue.” Comprehensive Health of Planned Parenthood v. Kline, 287 Kan. 372, 410, 197 P.3d 370 (2008). “ Whether mandamus lies is dependent upon an interpretation of the applicable procedural and substantive statutes, over which this court has unlimited review.’ [Citations omitted.]” State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 443, 172 P.3d 1154 (2007).
In attempting to establish its right to relief, KaMMCO argues that Allen failed to establish that the information she seeks is reasonably calculated to lead to admissible evidence and the district court did not comply with the procedures enunciated in Berst, 232 Kan. 180, and subsequent cases dealing with discovery served on third parties.
Duties and Considerations Imposed by Berst
As KaMMCO suggests, the Berst decision guides our analysis. In Berst, after having found.that the NCAA could seek the mandamus, the Berst court turned its consideration to the language of 60-226(b), which defines the scope of discovery, stating that discovery is allowed of “any matter, not privileged, which is relevant to the subject matter involved in the pending action.” K.S.A. 2009 Supp. 60-226(b)(l). The Berst court noted that the scope of relevancy in a discovery proceeding is broader than the scope of relevancy at trial. Berst, 232 Kan. at 186 (citing Gleichenhaus v. Carlyle, 226 Kan. 167, 170, 597 P.2d 611 [1979]). “It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” K.S.A. 2009 Supp. 60-226(b)(1).
After conducting its own in camera review of the documents, the Berst court concluded that many of the documents in the NCAA’s file did “not relat[e] in anyway to the litigants or the issues involved” in the lawsuit. Berst, 232 Kan. at 186. Because the irrelevant documents should have been excluded by limiting discovery, the Berst court concluded that the district court erred in failing to conduct an in camera inspection to determine which documents were not relevant, stating: “We believe when a claim of privilege, confidentiality or irrelevance is raised the court has a duty to conduct an in camera inspection to separate and permit discovery of only the relevant documents, thereby protecting against unnecessary and damaging disclosure of irrelevant confidential material.” (Emphasis added.) Berst, 232 Kan. at 187.
The Berst court then focused on whether the relevant documents were confidential. Noting that the NCAA’s documents did not come within any privilege created by statute, the Berst court recognized the existence of a privilege is not necessary in order to limit discovery. Rather, a court can limit discovery pursuant to its general supervisory powers over discovery. The court cited to 60-226(c), which provides that a district court “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” K.S.A. 2009 Supp. 60-226(c). Under this statutory provision, the Berst court indicated that a balance must be struck between discovery and nondisclosure, considering several factors, such as “ ‘the nature of the proceeding, whether the deponent is a party, whether the information sought is available from other sources, and whether the information sought goes to the heart of the claim.’ ” Berst, 232 Kan. at 188 (quoting Richards of Rockford, Inc. v. Pacific Gas & Elec., 71 F.R.D. 388, 390 [N.D. Cal. 1976]). In addition to this list of factors, the Berst court discussed other factors, including “the degree of harm that would be caused by disclosure and the type of controversy before the court” as well as the public interest in protecting confidentiality of the particular documents. Berst, 232 Kan. at 189 (citing 4 Moore’s Federal Practice ¶ 26.60[3] [1970]; Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249, 250 [D.C. Cir. 1970], aff'd 479 F.2d 920 [D.C. Cir. 1973]); see also 8 Wigmore, Evidence § 2285 (McNaughton rev. 1961) (identifying four fundamental conditions necessary to establish a qualified privilege against disclosure of confidential communications).
With regard to the relevant documents in the NCAA’s file, this court found the confidential nature of the information — informa tion which went to the “very essence” or “heart” of the issues in the libel case — was outweighed by the fact that this information would result in a fair determination of the underlying case. Even in those circumstances a further duty exists, however. The Berst court explained that when a district court orders production of confidential records, “it has a duty to limit the availability and use of documents” by utilizing protective provisions. Berst, 232 Kan. at 187.
Hence, although recognizing the district court’s discretion when supervising the course of discovery and determining its scope, the Berst court imposed several duties. In summary, these duties are:
1. “[W]hen a claim of privilege, confidentiality or irrelevance is raised the court has a duty to conduct an in camera inspection to separate and permit discovery of only the relevant documents, thereby protecting against unnecessary and damaging disclosure of irrelevant confidential material.” Berst, 232 Kan. at 187.
2. Once a determination of relevance is made, if there is an objection that the documents are confidential or privileged, it must be determined whether the objection is valid. Berst, 232 Kan. at 187.
3. The court should exercise its general supervisory powers over discovery and apply K.S.A. 2009 Supp. 60-226(c) by making “any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” When resolving disputes regarding whether discovery would cause annoyance, embarrassment, oppression, or undue burden or expense, a district court should weigh factors such as the nature of the proceeding, whether the discovery is requested from a party, whether the information that is sought is available from other sources, whether the information sought goes to the heart of the claim, the degree of harm that would be caused by disclosure, the type of controversy before the court, and the public interest in protecting confidentiality of a particular document or information. Berst, 232 Kan. at 187-90.
4. If confidential or privileged documents are ordered to be produced, the district court has a duty to limit the availability and use of documents by utilizing protective provisions. Berst, 232 Kan. at 187.
Our next task is to examine the district court’s performance or failure to perform these duties.
1. Scope of Discovery
The first of these duties — to separate and permit discovery of only the relevant documents — is triggered because KaMMCO has clearly and repeatedly asserted claims of confidentiality and privilege as well as relevance. As discussed in Berst, in the context of a discovery request the test of relevancy is whether “the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” K.S.A. 2009 Supp. 60-226(b)(l). The district court did not discuss this test in its findings, and we can find no ruling to the effect that the information Allen seeks is within the scope of discovery as defined in K.S.A. 2009 Supp. 60-226(b)(l). At oral argument, Allen’s counsel was questioned about the lack of a ruling; counsel responded that the district court made such a ruling during a telephone conference. Even with this guidance, we are still unable to locate an explicit finding by the district court.
Even if the failure to locate the ruling is due to our lack of detective skills, the fault lies with Allen who had an obligation to provide a record citation for this critical finding that is ihe foundation for her arguments. As it would relate to Allen’s briefing of Case No. 102,164, she was required by Supreme Court Rule 6.02 (2010 Kan. Ct. R. Annot. 38) to provide a specific citation to the record. See Supreme Court Rule 6.02(d) (2010 Kan. Ct. R. Annot. 39) (Facts must “be keyed to the record on appeal by volume and page number so as to make verification reasonably convenient. Any material statement made without such a reference may be presumed to be without support in the record.”); see also Supreme Court Rule 6.02(e) (2010 Kan. Ct. R. Annot. 39) (“Each issue shall begin with citation to the appropriate standard of appellate review and a reference to the specific location in the record on appeal where the issue was raised and ruled upon.”); Southwestern Bell Tel. Co. v. Beachner Constr. Co., 289 Kan. 1262, 1275, 221 P.3d 588 (2009) (party asserting an argument has the responsibility for providing a record on appeal sufficient to support the argument). Because Allen had the obligation to comply with these rules in Case No. 102,164, we think it fair to apply them in this mandamus action that was consolidated with that appeal. Consequently, we presume that district court did not rule on the issue of relevancy.
Counsel suggests that even if there was not an explicit relevancy ruling, we could accept the analysis that is implicit in the district court’s order, i.e., that all categories of records sought in the subpoena are within the scope of discovery allowed by K.S.A. 2009 Supp. 60-226(b). Allen thus asks us to rule that all materials from KaMMCO are discoverable because they show a potential financial interest by Dr. Macy. Accepting that Dr. Macy and Dr. Slater are not members of the same member-owned insurance company, Allen, in her “Response to Petition for Writ of Mandamus,” argues that both Dr. Slater and Dr. Macy, as Kansas physicians, must choose from the same pool of insurance coverage that would be impacted by a verdict in this case. She further suggests that she needs all of the evidence regarding KaMMCO in order to combat any assertion by the defense at trial insinuating that Kansas expert witnesses, as opposed to out-of-state witnesses, are more credible. On the flip side, KaMMCO suggests that we can determine that none of the records satisfy the scope of discovery test of K.S.A. 2009 Supp. 60-226(b).
Ultimately, we conclude we are unable to make the blanket rulings that either party seeks. We suffer from the same malady that led to the apparent frustration of the district court: shifting theories of relevancy and lack of specificity of objections. Both parties’ shotgun approach makes for a scattered analysis and leaves many gaps between pellet holes. We will attempt to address the scattered arguments within the framework of the Berst duties but must remand to the district court for further clarification and development on some issues.
a. Overarching Theory of Bias
First, we will address Allen’s overarching argument as to why all of the records it seeks from KaMMCO are discoverable because of the potential to show Dr. Macy’s bias and KaMMCO’s argument that none of the records are discoverable. As we have discussed, in initially stating how the subpoena requests were reasonably calculated to lead to the discovery of admissible evidence, Allen relied on Dr. Slater s and Dr. Macy’s shared financial interest as members of the same member-owned insurance company, otherwise known as a mutual insurance company. Once discovery revealed this link lacked a factual basis, Allen shifted its focus to KaMMCO’s “aggressive” claims practices. Then Allen again asserted a financial interest, albeit more attenuated, because both physicians must purchase insurance from Kansas insurance carriers whose premiums are likely to be impacted by jury verdicts. We will begin our analysis by examining whether this financial link, as a matter of law, is material to the issue of witness bias, in other words whether it is reasonably calculated to lead to admissible evidence. See State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 (2010) (materiality of evidence presents question of law).
In general, evidence of bias is always relevant, as is evidence that a witness bears a prejudice, hostility, or improper motive. State v. Ross, 280 Kan. 878, 886, 127 P.3d 249, cert. denied 548 U.S. 912 (2006); see also Lindquist v. Ayerst Laboratories, Inc., 227 Kan. 308, 315, 607 P.2d 1339 (1980) (evidence of bias or prejudice of witness is relevant and may be shown on cross-examination, in rebuttal, or by other witnesses or evidence); State v. Scott, 39 Kan. App. 2d 49, 56, 177 P.3d 972 (2008) (“One of the methods or techniques for attacking the credibility of a witness is to show partiality, including bias, motive, and interest in the outcome.”).
Our recognition of these general principles leaves us with the question of whether it is evidence of bias that Dr. Macy, the defense expert, is insured by a company that is the servicing carrier for Dr. Slater’s insurance plan. Clearly, Allen would have a stronger argument if, as initially believed, Dr. Slater and Dr. Macy were both insured by the same member-owned insurance company. Even then, we would be faced with two potentially conflicting principles. First is the general principle that Allen should be able to develop and discover evidence of Dr. Macy’s bias. See K.S.A. 60-420 (evidence of credibility admissible). Second, however, are general principles aimed at preventing the mention of insurance if doing so raises the implication that an insurance company will be paying damages. These principles are applicable because, if Allen is allowed to impeach Dr. Macy with evidence he was a member of a member-owned insurance company, the evidence would have the simultaneous effect of announcing that Dr. Slater has liability insurance. As such, K.S.A. 60-454 comes into play. It provides: “Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible as tending to prove negligence or other wrongdoing.”
K.S.A. 60-454 deviates from the federal rule of evidence and the rule as adopted in many states, which begins with the sentence found in K.S.A. 60-454 but also addresses the potential for admitting evidence of insurance to establish bias or for other purposes the rule specifies. For example, the federal rule continues by stating: “This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.” Fed. R. Evid. 411. Nevertheless, without discussion of the difference in Kansas’ rule and the federal provision or the lack of the specific authorization for evidence of insurance to show bias, this court found no reversible error in disclosing the existence of liability insurance to show witness interest or bias in State Farm, Fire & Casualty Co. v. Hornback, 217 Kan. 17, 535 P.2d 441 (1975). In that case, a fire insurer’s subrogation action against defendant tenants, a witness who testified for the tenants as to the cause of the fire was the liability insurance agent who sold the policy. The court recognized that under those circumstances the collateral mention of insurance was necessary to establish the possible bias on the part of the witness.
Applying such a view (usually in the context of an explicit statutory or rule provision like Fed. R. Evid. 411), other jurisdictions have considered the question of whether evidence that an expert witness is a member of the same member-owned insurance company as a defendant may be admitted at trial. Before us, Allen does not cite to these cases as support for her argument and, more critically, does not cite any factually similar case where the de fendant physician and the expert witness were not members of the same insurance company. Nevertheless, we find some guidance in the cases dealing with members of the same insurance company.
In considering that situation, most jurisdictions apply what has become characterized as a “connections test” or a “substantial connections test.” “The substantial connection analysis looks to whether a witness has ‘a sufficient degree of “connection” with the liability insurance carrier to justify allowing proof of this relationship as a means of attacking the credibility of the witness.’ ” Bonser v. Shainholtz, 3 P.3d 422, 425 (Colo. 2000) (quoting Otwell v. Bryant, 497 So. 2d 111, 115 [Ala.1986]). The Alabama Supreme Court first mentioned a “connections” analysis in Otwell, 497 So. 2d at 113.
Otwell was a medical malpractice case in which the plaintiff attempted to introduce evidence that two defendant physicians and three of the defendants’ physician expert witnesses were members of the same “mutual assurance” company. The district court refused to admit the evidence, and the Alabama Supreme Court affirmed, holding:
“What is missing in the present case is the sufficient degree of ‘connection.’ The coincidental fact that the witness and the defendants are both insured by [the same mutual assurance company] is not an adequate degree of connection to counter-balance the undue prejudice that will result to the defendants through alerting the jury to the existence of liability insurance.” Otwell, 497 So. 2d at 114.
The rationale was further explained in Mendoza v. Varon, 563 S.W.2d 646, 649 (Tex. Civ. App. 1978), another medical malpractice case. The court stated:
“[T]he [expert] witness had no direct interest in the outcome of the litigation, as would an agent, owner or employee of the defendant’s insurer. While it is true that a large judgment against any doctor will probably affect the insurance rates of other physicians, this interest is remote, and any proof of bias based upon that interest is outweighed by the prejudice caused by informing the jury of the defendant’s insurance protection.” Mendoza, 563 S.W.2d at 649.
Other jurisdictions have reached the conclusion that evidence of both physicians being members of the same mutual insurance company is not admissible, without a showing of a substantial connection between the expert and the company. See, e.g., Barsema v. Susong, 156 Ariz. 309, 313, 751 P.2d 969 (1988) (“[W]e acknowledge that in dealing with a captive insurer... with a comparatively small premium pool, evidence of a common insurer between the witness and the defendant might be more relevant than in ordinary cases. Nonetheless, . . . [i]n all but the exceptional case, a trial judge applying Rule 403 should hold that the danger of prejudice resulting from the interjection of insurance evidence substantially outweighs the probative value of evidence that the witness and a party have a common insurer. In all but exceptional cases, therefore, the type of evidence that concerns defendant would not be admitted.”); Hawes v. Chua, 769 A.2d 797, 810-11 (D.C. 2001) (commonality of insurance company insufficient in absence of proffer of substantial connection such as showing that expert is agent of insurer); Chambers v. Gwinnett Community, Inc., 253 Ga. App. 25, 28, 557 S.E.2d 412 (2001) (“[A] party must demonstrate a more substantial connection than simply a common mutual insurance carrier to overcome the potentially prejudicial effect of introducing evidence of a defendant’s insurance.”); Wells v. Tucker, 997 So. 2d 908, 917 (Miss. 2008) (trial court did not abuse discretion in excluding evidence of common insurance carrier, noting strong policy to not interject insurance into trial); Reimer v. Surgical Servs, of the Great Plains, 258 Neb. 671, 676, 605 N.W.2d 777 (2000) (plaintiffs “presented no evidence of bias other than the mere fact that [the defendant] and his expert were policyholders of insurance issued by the same carrier. Absent other facts to indicate bias, the facts of the instant case indicate only a remote possibility of bias”); Warren v. Jackson, 125 N.C. App. 96, 101, 479 S.E.2d 278 (1997) (mere policyholder status represents too attenuated a “connection” with an insurance company, mutual or otherwise, for the probative value of such evidence to outweigh the potential prejudice to jury’s deliberations); Mills v. Grotheer, 957 P.2d 540, 543 (Okla. 1998) (unless it is shown that witness has substantial connection with business of the common insurer, there is no basis for discrediting testimony based on bias derived from interest in common insurer’s business); Patton v. Rose, 892 S.W.2d 410, 415 (Tenn. App. 1994) (plaintiff unsuccessfully sought to cross-examine one of defendant physician’s expert witnesses regarding the fact that the expert was insured by same insurance company). Only the Ohio Supreme Court has taken a different view, adopting a per se rule that commonality of coverage is admissible to prove bias in a medical malpractice case. See Ede v. Atrium South OB-GYN, Inc., 71 Ohio St. 3d 124, 128, 642 N.E.2d 365 (1994).
These cases uniformly undercut Allen’s blanket argument that all of the requested information is reasonably calculated to lead to admissible evidence of financial bias. This is especially true since the cases applying the substantial interest test are at least one step removed from the situation presented in this case because those cases involve members of the same insurance company whereas Dr. Slater and Dr. Macy are insured by different companies. Hence, even Ohio’s per se commonality of coverage standard would not apply. Under any of these cases, without a membership connection between KaMMCO and Dr. Slater, Dr. Macy’s membership in KaMMCO, by itself, would not be admissible evidence or serve as a door to open access to the admission of a wide range of KaMMCO documents.
The lack of membership connection makes this case analogous to a fine of Kansas cases in which attorneys sought to determine juror bias by asking jurors during voir dire whether they were members of or stockholders in insurance companies. Uniformly, this court condemned this practice. For example, in Powell v. Kansas Yellow Cab Co., 156 Kan. 150, Syl. ¶ 4, 131 P.2d 686 (1942), this court held it is reversible error in a personal injury action in which an insurance company is not a party to ask jurors on their voir dire if they are stockholders or directors in an insurance company. In addition, the court held: “[I]t is gross misconduct for counsel for plaintiff, in examining jurors on their voir dire, to ask any question which indicates defendant will not have to pay a judgment rendered for plaintiff but that some insurance company is bound to pay it.” Powell, 156 Kan. 150, Syl. ¶ 3.
Obviously, these cases are not directly on point. They do reflect, however, Kansas’ long-standing position that insurance should not be interjected in a trial. Further, they reject arguments that the financial connection of buying insurance in the same market or even having a joint ownership interest in an insurance company is a bias that would disqualify a potential juror or is of the nature that warrants interjection of insurance into a liability trial.
While these cases are helpful to our analysis, this case presents a different question. Here the question is whether to allow discovery rather than whether to admit evidence of insurance or allow discussion of insurance during a trial. As we have repeatedly noted, the relevancy test for discovery is not whether evidence will be admissible at trial, but whether it is reasonably calculated to lead to the discovery of admissible evidence. Even so, courts have extended the substantial connections test to the discovery setting and have limited discovery, at least when a nonpariy is involved. See, e.g., Ex parte Morris, 530 So. 2d 785, 789 (Ala. 1988) (discovery sought was malpractice witnesses’ income tax returns; court relied on Otwelf s substantial connection test).
The rationale of these cases that limit discovery is not unlike that applied by this court in Berst and in Jones v. Bordman, 243 Kan. 444, 759 P.2d 953 (1988). As previously discussed, in Berst, the court directed a district court to consider its authority under K.S.A. 60-226(c) to enter orders limiting discovery after weighing various factors. Similar direction was given in Jones.
Jones was an interlocutory appeal arising from discovery orders related to requests for information intended to prove bias and prejudice on the part of a defense expert witness, Dr. Joseph Lichtor. The plaintiffs sought various documents from Dr. Lichtor, including all medical reports made by the doctor for the past 6 years, the doctor’s income tax returns, and a list of all cases in which the doctor served as an expert witness for the defendant’s attorneys. The district court denied a motion to quash the subpoena.
On appeal, one of the arguments raised by the plaintiffs pertained to the scope of discovery. The plaintiffs argued that the scope of discovery as defined in K.S.A. 60-226(b) was broad enough to permit the inspection of Dr. Lichtor’s records for possible evidence showing bias and prejudice. Jones, 243 Kan. at 454. Despite the broad test for permitting discovery, the Jones court found the medical records sought by the plaintiffs were inadmissible because the records pertained to persons who were not par ties to the action and “as such are not relevant.” Jones, 243 Kan. at 455. The Jones court explained:
“It does not follow that the wholesale discovery of these medical records is permissible because evidence may be discovered which might show bias and prejudice of the witness. . . . The scope of discovery under K.S.A. [2009] Supp. 60-226(b) contemplates the full disclosure of the expert witness' opinion and the facts and basis for that opinion. It does not contemplate the discovery of the medical records of persons not a party to the lawsuit for the sole purpose of obtaining evidence which may show a bias or prejudice.” Jones, 243 Kan. at 455.
This hmitation on discovery suggests it can be appropriate to limit discovery based on what arguably is a broad theoiy of bias and prejudice. Such a hmitation seems particularly appropriate in a case such as this where there seems to be a complete lack of authority for the ultimate admission of the evidence Allen seeks to discover or for authority suggesting the information is material to the issue of bias. The cases from other jurisdictions persuade us that discovery of all the KaMMCO records is not reasonably calculated to lead to the discovery of admissible evidence of bias when the materiality of that evidence is premised on the fact that Dr. Slater and his expert are within the same insurance market or that the expert is a member of the insurance company that is the servicing carrier for Dr. Slater’s insurance plan. Consequently, we reject Allen’s invitation for us to make a blanket finding that all of the requested documents are discoverable on the basis that KaMMCO’s records are reasonably calculated to lead to admissible evidence showing Dr. Macy’s bias simply because he and Dr. Slater are Kansas physicians.
b. Other Theories of Relevance
This holding does not mean that some of KaMMCO’s records are not discoverable. There are alternative arguments as to why many of the discovery requests are reasonably calculated to lead to admissible evidence. In fact, another broad argument raised by Allen relates to Dr. Macy’s potential bias arising from information received from KaMMCO regarding the role of expert witnesses in claims. As recognized in Jones, 243 Kan. at 455, K.S.A. 2009 Supp. 60-226(b) allows discovery regarding the basis for an expert opin ion. Hence, information received from KaMMCO, although perhaps subject to other objections, could satisfy a relevancy test on the grounds the information may lead to evidence of what influenced Dr. Macy’s opinions.
Yet, not all of the discovery demands can be explained by this theory of relevancy. This is where the shotgun approach to argument fails to cover the entire target. We could continue with a paragraph by paragraph analysis of the discoveiy request and supply our own reasons why a request may or may not be relevant, but the record is simply inadequate for us to go further in evaluating Allen’s theories as to why the standard of K.S.A. 2009 Supp. 60-226(b) is met by any of the requests. Similarly, we are unable to link specific relevancy (or, as we discuss later, privilege) objections espoused by KaMMCO to specific paragraphs of the request. This lack of specificity exists even though this discovery dispute spanned almost a year of written arguments and hearings before the district court and then the parties had the opportunity to focus their arguments before us. Given this, we are sympathetic to the obvious frustration of the district court in this matter. Arguably, we could conclude that Allen failed to meet her burden and quash the subpoena on this ground. But this ignores the apparent legitimacy of some of the discovery under the articulated theory that KaMMCO information might serve as a basis for Dr. Macy’s opinions. Consequently, rather than quash the entire subpoena based on relevancy, we conclude a remand is necessary.
On remand, if Allen wishes to pursue any of the proposed discovery, she should articulate how each category of requested information is likely to lead to the discoveiy of admissible evidence. KaMMCO should then raise specific relevancy objections so that the district court can perform the first duty stated in Berst — to separate and permit discovery of only relevant documents. If it becomes necessary to review documents in order to fulfill this or other duties imposed in Berst, we remind the district court and the parties of the option to use a master. See K.S.A. 2009 Supp. 60-216; K.S.A. 2009 Supp. 60-253.
2. Determination of Privileges and Other Objections
The Berst court directed that once a determination of relevance is made, if there is an objection that the documents are confidential or privileged, it must be determined whether the objection is valid. Berst v. Chipman, 232 Kan. 180, 187, 653 P.2d 107 (1982). It follows that other objections should be addressed as well.
In various arguments made to the district court, KaMMCO referred to privileges or claims of confidentiality that can be categorized as potentially falling under K.S.A. 2009 Supp. 60-226(b) (work product), K.S.A. 2009 Supp. 60-226(c)(7) (trade secret or other confidential research, development, or commercial information), K.S.A. 60-426 (attorney-client privilege), K.S.A. 2009 Supp. 60-427 (physician-patient privilege), K.S.A. 2009 Supp. 65-4915 (peer review privilege), and common-law qualified privileges. Thus, at least in a general sense, KaMMCO raised claims of confidentiality or privilege.
Because of these asserted privileges, KaMMCO argues that if the district court believed the discoveiy was relevant it should have considered the claims of privilege before ordering KaMMCO to respond. KaMMCO cites to the holding in Berst, stating that “the court has a duty to conduct an in camera inspection.” Berst, 232 Kan. at 187.
Allen notes, however, that subsequent to Berst, this court recognized that there are steps short of in camera inspection that can be used to consider claims of privilege, including the use of privilege logs. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 426, 997 P.2d 681 (2000). Here, the request for a subpoena cited Cypress Media and provided that “[i]f any materials are claimed to be privileged, please provide a privilege log which identifies the material claimed to be privileged and specifies the basis for each privilege claimed.” KaMMCO did not provide such a log. Further, as Allen notes, in various filings in the district court and in KaMMCO’s arguments, KaMMCO spoke in generalities, never linking a specific privilege to specific documents that would be produced. Given that, Allen argues the district court did not have an obligation to consider whether the documents were privileged.
Allen’s argument gains some support from K.S.A. 2009 Supp. 60-245(d)(2), which provides that if information subject to a subpoena is withheld on a claim of privilege “the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced that is sufficient to enable the demanding party to contest the claim.” Further support is found in the rule that the party (or nonparty, as in the present case) objecting to discovery must provide precise reasons for the objection to discovery. See Cypress Media, 268 Kan. at 425 (citing National Union Fire Ins. Co. v. Midland Bancor, Inc., 159 F.R.D. 562, 567 [D. Kan. 1994]).
The district court, however, did not make a finding that KaMMCO had failed to preserve its claimed privileges or that the privileges did not apply. Rather, the district court refused to rule on the privilege issues, indicating KaMMCO’s objections were premature. KaMMCO argues this ruling is contrary to the direction in Berst and Jones. Further, although in its brief KaMMCO does not specifically address its reasons for failing to provide a privilege log, it does assert that “KaMMCO has no means of responding to some of the [discovery] requests without significant burden.” And in one of the hearings before the district court, KaMMCO expressed difficulty in logging privileged materials or information due to the broad nature of Allen’s discovery requests and contended it would be an undue burden if it was required to present specific privilege logs as to individual documents that are not within the permitted scope of discovery. Additionally, KaMMCO argues a privilege log would contain the proprietary information it seeks to protect. Further, before us at least, KaMMCO suggests that many of its privilege arguments can be addressed by category, e.g., all risk management surveys are peer review materials. In summary, KaMMCO asserts that the district court needed to make some preliminary determinations before requiring KaMMCO to undertake the burden of creating a privilege log.
This argument ties into the third directive of the Berst court, suggesting that a district court faced with claims of privilege and undue burden should consider various factors that influence whether a protective order should issue pursuant to K.S.A. 2009 Supp. 60-226(c).
3. Weighing of Factors
In its discussion, the Berst court advised district courts to exert general supervisory power over discovery and apply K.S.A. 2009 Supp. 60-226(c) by making “any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” See Berst, 232 Kan. at 188. Other statutory provisions not discussed in Berst also grant district courts discretion to limit the scope and burden of discovery. For example, K.S.A. 2009 Supp. 60-245(c)(l) provides that reasonable steps should be taken to avoid undue burden and expense on a person subject to a subpoena, and K.S.A. 2009 Supp. 60-245(c)(3) explicitly authorizes the quashing or modification of a subpoena as a means of protecting a witness from misuse of the subpoena power. More specifically subsection (c)(3) provides that the district court shall quash or modify the subpoena if it “requires disclosure of privileged or other protected matter and no exception or waiver applies” if it “subjects a person to undue burden.” K.S.A. 2009 Supp. 60-245(c)(3)(A)(iii), (iv).
This court in Jones also concluded that the district court should consider whether the information could be obtained without burdening a nonparty who claimed privileges. Specifically, the Jones court stated: “Questions may be directed to the [expert witness] doctor through interrogatories or by deposition which would elicit the evidence plaintiffs seek to show prejudice or bias.” Jones, 243 Kan. at 455.
Each of these considerations arise from KaMMCO’s general arguments that the discovexy and even the preparation of a privilege log may be burdensome. Yet, all we have in the record to support this argument is KaMMCO’s general claim. The decisions of this court have never demanded more. This low threshold creates the apparent problem of leaving the district court (and now this court) with no effective mechanism for conducting the balancing called for in Berst. While this court has never adopted a specific standard for arguments related to burden, the federal courts have established requirements.
For example, the federal courts in the District of Kansas require a factual basis for a claim that discoveiy is unduly burdensome. More specifically, the objecting party must provide an affidavit or other evidentiary proof of the time and expense involved in responding to the discovery request. E.g., Sonnino v. University of Kansas Hosp. Authority, 220 F.R.D. 633, 653 (D. Kan. 2004). Consistent with the weighing of factors discussed in Berst, the federal courts require the objecting party to meet the burden of showing “not only undue burden or expense, but that the burden or expense is unreasonable in light of the benefits to be secured from the discoveiy.” Cardenas v. Dorel Juvenile Group, Inc., 232 F.R.D. 377, 380 (D. Kan. 2005).
We adopt these federal standards and on remand direct compliance if an objection is made that either a discovery demand or a request to create a privilege log is unduly burdensome. Additionally we direct the district court to consider the other factors discussed in Berst and Jones.
4. Protective Order
Finally, on remand, the district court must consider the fourth duty imposed by the Berst court. Under that holding, if confidential or privileged documents are ordered to be produced, the district court has a duty to limit the availability and use of documents by utilizing protective provisions. Berst, 232 Kan. at 187.
Conclusion
In summary, we conclude mandamus is an appropriate remedy because the district court did not perform the duties imposed in Berst. Consequently, we enter a writ of mandamus requiring the district court to comply with Berst in a manner consistent with this decision. However, we deny the petition for mandamus in part, concluding it would not be appropriate to quash the request for discoveiy. Finally, we order that the stay of the underlying action is lifted.
Case No. 102,164 is dismissed for lack of jurisdiction. The petition for mandamus in Case No. 102,075 is granted in part and denied in part. | [
-80,
-24,
108,
44,
26,
97,
50,
34,
65,
-85,
55,
115,
-19,
-37,
-123,
63,
-58,
61,
66,
99,
-9,
-77,
71,
-64,
-10,
-46,
-7,
22,
-80,
-1,
-26,
-44,
76,
40,
2,
85,
-58,
10,
-113,
-100,
-58,
10,
-88,
-31,
81,
-64,
-80,
59,
18,
71,
49,
95,
-79,
40,
51,
-61,
77,
40,
-6,
-68,
-59,
-112,
-85,
5,
125,
16,
-79,
4,
-104,
71,
80,
62,
-108,
-72,
42,
-24,
48,
-74,
-126,
52,
107,
-71,
8,
114,
98,
-95,
16,
-19,
56,
-68,
15,
-115,
29,
-89,
-109,
64,
-24,
13,
-106,
-67,
117,
22,
7,
-4,
-12,
21,
30,
44,
15,
-101,
-60,
-77,
-101,
119,
-100,
67,
-17,
7,
0,
16,
-115,
-80,
92,
-61,
51,
19,
-66,
-80
] |
The opinion of the court was delivered by
Luckert, J.:
Appealing from jury convictions of one count of rape, one count of attempted rape, and two counts of aggravated criminal sodomy, Jesus Berriozabal argues his convictions should be reversed because the district court erred by admitting evidence of prior uncharged sexual conduct between Berriozabal and the complaining witness, by denying his motion for a psychological examination of the complaining witness, and by excluding evidence that the complaining witness had been sexually abused by a relative. In addition, he argues his two hard 25 life sentences constitute cruel and unusual punishment and that he was improperly sentenced to a hard 25 life sentence for attempted rape.
We reject Berriozabal’s attacks on his convictions, finding he failed to preserve the K.S.A. 60-455 issue, to establish a compelling reason for the psychological examination of the complaining witness, or to establish that the district court abused its discretion in determining the evidence of alleged prior sexual abuse should not be admitted. However, we vacate Berriozabal’s sentences on both the rape and attempted rape counts. The life sentence based on the rape conviction is vacated because the district court did not make the necessary factual findings to allow appellate review of Berriozabal’s argument that a life sentence would violate the cruel and/or unusual punishment provisions of § 9 of the Kansas Constitution Bill of Rights or the Eighth Amendment to the United States Constitution. The sentence based on the attempted rape conviction is vacated because it is contrary to our holding in State v. Horn, 288 Kan. 690, 206 P.3d 526 (2009), which held that the rule of lenity requires imposing the lesser of two sentences that apply to an attempt to commit a sexually violent off-grid crime against a minor, such as rape — i.e., K.S.A. 21-3301(c) (“An attempt to commit an off-grid felony shall be ranked at nondrug severity level 1.”) and K.S.A. 21-4643(a)(l)(G) (hard 25 life imprisonment applies to “an attempt” to commit any of the sexually violent crimes enumerated in Jessica’s law).
Hence, we affirm his convictions, vacate his sentences for the rape and attempted rape convictions, and remand for additional findings and for resentencing on the rape and attempted rape counts.
Facts and Procedural Background
The defendant, Jesus Berriozabal, and his girlfriend B.H. met in 2003 and started living together the following year. B.H.’s daughter M.V. moved into the couple’s residence in mid-2005, when M.V. was almost 11 years old. B.H.’s other daughter, C.H., came to stay for the summer of 2006, and the two girls shared a bedroom. The girls had previously lived with their maternal grandmother because of B.H.’s drug addiction problems.
C.H. testified that on July 7, 2006, she left the house to go grocery shopping with her mother but came back inside to ask M.V. if she wanted anything from the store. When she got inside the house, C.H. discovered Berriozabal on top of M.V. in the master bedroom. Berriozabal was naked, with his pants around his ankles. M.V. was still in a dress. When Berriozabal saw C.H., he said, “Oh, shit,” and jumped to his feet. C.H. told her mother, who confronted Berriozabal. He denied any sexual contact with M.V.
That afternoon, Berriozabal traveled to Mexico to visit his ailing father. Although he had previously discussed waiting until August and taking B.H. and M.V. with him, he left abruptly on July 7, taking only two pairs of jeans and one shirt and without making any arrangements to take a leave of absence from his employer. Berriozabal called B.H.’s cell phone and told her he was leaving the country.
Meanwhile, on the advice of her own mother, B.H. and her daughters went to the hospital, where M.V. was examined by a sexual assault nurse examiner. M.V. told the nurse that Berriozabal was trying to get on top of her when C.H. came home and that “I’m always on my back in his room.” This prompted the nurse to ask if this had happened once or rriore frequently. M.V. told the nurse that this would happen “[ejverytime my mom and my sister go to the store, . . . unless they’re going somewhere nearby the home.” Berriozabal would usually take off M.V.’s clothes, too, but this time “he didn’t get mine off yet, ‘cause my sister came in just after they had left.”
M.V. indicated to the nurse that Berriozabal had touched “my cookie,” pointing to her groin area, with his penis (“wee wee”) and his hands. He also tried to put her hand on his penis, and she said he had previously put-his penis in her mouth and put his mouth on her vagina. M.V. indicated that she experienced soreness and bleeding after incidents with Berriozabal.
The State charged Berriozabal with rape, attempted rape, and two counts of aggravated criminal sodomy. Sometime after July 7, 2006, B.H. contacted Berriozabal at the request of law enforcement and asked him to return from Mexico. She attempted to coax his return by telling him the charges had been dropped. Berriozabal returned and was arrested on the charges.
Before trial, the State filed a motion pursuant to K.S.A. 60-455 to present evidence of Berriozabal’s prior uncharged sexual conduct with M.V. The court held a hearing at which the State presented the testimony of M.V. and Investigator Shawn Moreland of the Salina Police Department.
At the hearing, Investigator Moreland testified that when he interviewed M.V., she identified the female genitals and the male genitals as the “lower areas.” M.V. told Moreland that Berriozabal had touched her on multiple occasions, but she was only able to identify two dates, specifically, July 4, 2006, and July 7, 2006. She indicated that Berriozabal had put his penis (“lower area”) into her vagina (“lower area”). She also described Berriozabal’s putting his mouth on her vagina and making her put her mouth on his penis.
M.V. also testified at the hearing, stating that when her mother was working or shopping, Berriozabal touched her in an inappropriate manner. He would make M.V. stay home while her mother went to the store, and he told M.V. not to tell anyone about the incidents. According to M.V., the touching started after Christmas of 2005. M.V. described how, in his bedroom, Berriozabal touched her with his hands and his “lower area.” She also said he put his “lower area” inside of her “lower area.” And M.V. indicated that the touching occurred more than 10 times. She testified that she did not tell anyone because she was scared.
The district court granted the State’s motion to admit evidence of Berriozabal’s prior sexual contact with M.V. The court noted that M.V. testified the touching occurred almost eveiy day, that only Berriozabal and M.V. were in the home when the touching occurred, that M.V. was “very graphic in her description,” and that M.V. was “sure that there had been a penetration.” The district court noted that M.V.’s testimony was consistent. The district court further observed that the State was not trying to introduce evidence of Berriozabal’s committing similar acts with other individuals. In addition, the court ruled that the prior crimes testimony was admissible, specifically stating the evidence was relevant and would prove material facts. Reviewing and discussing the various reasons delineated in K.S.A. 60-455 as permissible reasons for admitting the evidence, the court found the evidence material to the issues of motive, opportunity, intent, preparation, and plan. Finally the court found that the probative value of the evidence outweighed the potential for prejudice.
Pretrial motions were also filed by Berriozabal. In one, filed under seal, Berriozabal asked the district court for a psychological examination of M.V. The reasons presented by Berriozabal included the instability of M.V.’s family, possible prior sexual abuse of M.V. by the brother of B.H.’s stepfather, and the “potential lack of veracity” on the part of M.V. In his written motion to support his claim that M.V. was untruthful, Berriozabal pointed to the fact that C.H. had testified at the preliminary hearing that M.V. initially denied the veracity of the sex offense charges against Berriozabal.
Berriozabal also filed, under seal, a motion to admit evidence of M.V.’s prior sexual behavior under the Kansas rape shield statute, K.S.A. 21-3525. Specifically, Berriozabal mentioned the alleged incident between M.V. and the brother of B.H.’s stepfather; M.V.’s discussing some sex education material from her school; and M.V.’s statement where she allegedly lied about another girl — Berriozabal’s former stepdaughter A.U. — having sex with a boy named “Kevin.”
At the hearing on these defense motions, Berriozabal testified that M.V. told him a “secret” — she cried and told him about an incident where a person named Eddie “forced her to go to bed.” She did not divulge any further details. When Berriozabal asked M.V. if she had told her mother or her grandmother, she said she had not done so because “[n]obody would believe her, nobody really liked her.” Berriozabal also testified that he asked B.H. who Eddie was and was told he was a brother of B.H.’s stepfather. At various points in the record, the attorneys referred to Eddie as M.V.’s uncle or great uncle.
Berriozabal also testified regarding the other evidence he wished to see admitted. He reported that M.V. talked to B.H. about some information she learned in sex education class, like private parts. Berriozabal acknowledged at the hearing that he was unaware of any instance where M.V. had made a false accusation concerning sexual conduct against another person.
The defense also called A.U.’s mother and A.U. to testify at the hearing. A.U.’s mother claimed that M.V. had told other girls that A.U. was not a “virgin.” A.U., 14 years old, gave similar testimony. She indicated that M.V. told B.H. that A.U. was not a virgin, and B.H. told A.U.’s sister. The news spread to A.U.’s mother, who confronted A.U. about the matter. A.U. admitted that her mother and M.V.’s mother did not get along very well, but she did not know why M.V. talked about A.U.’s virginity.
After hearing the evidence, the district court denied both motions. With regard to Berriozabal’s motion to admit evidence of M.V.’s prior sexual behavior, the district court found that the hearing testimony by Berriozabal about Eddie did not provide a clear sexual connotation to the “go to bed” language. Further, the court found there was no “compelling presentation of prior acts on the part of the victim in this case involving someone else ... of a sexual nature.” The court also found there was nothing in the record to suggest that M.V.’s attendance at a school sex education class led her to malee sexual allegations against others. In addition, the court found the allegation regarding A.U. to be irrelevant.
As for the motion for a psychological examination of M.V., the district court acknowledged that M.V. had attended eight different schools and lacked parental stability. Nevertheless, the district court found there was no evidence that M.V. had required counseling and no indication that she was unstable “as to her truth or veracity.” The only indicator of “some lack of veracity,” the district court found, was the allegation about A.U.’s loss of virginity. Even so, there was no direct testimony from any of the girls present when M.V. allegedly began the rumor about A-U.’s loss of virginity, nor did B.H. testify that her daughter had made such statements to her. The court also stated that it did not appear M.V.’s testimony at prior hearings was “in any way dishonest,” and it did not appear she was unable to understand the meaning of her oath and the obligation to tell the truth. The court ultimately concluded there was no compelling need to submit M.V. to a psychological examination.
Ten days after the motions hearing, the district court conducted another hearing after Berriozabal filed a supplemental rape shield statute affidavit. At the hearing, the defense played a recorded conversation between A.U. and an investigator from the Salina Public Defender’s Office. In the tape recording, A.U. told the investigator that during a sleepover M.V. had mentioned that M.V. was not a virgin because she had been raped by an uncle. A.U. could not remember any further details and could not remember the uncle’s name.
The State called M.V. to testify at the hearing. M.V. indicated that she did not have a close relationship with A.U. and that A.U. had only spent the night once at her house in Salina. M.V. denied telling A.U. or Berriozabal that she had been raped by an uncle, and she denied knowing a person named “Eddie.” According to M.V., A.U. said she (A.U.) was not a virgin, and A.U.’s mother found a journal in which A.U. admitted her loss of virginity.
Defense counsel argued that this evidence was relevant to M.V.’s credibility and relevant to explain the possible old injury revealed during M.V.’s sexual assault examination at the hospital. The district court denied BerriozabaTs motion, finding the proposed evidence of prior sexual conduct of M.V. did not rise to the level of being “verifiable or relevant” to the issues before the jury.
At trial, defense counsel renewed the motion to admit evidence of M.V.’s prior sexual behavior after Mary Alice Weed, a sexual assault nurse examiner, testified that M.V. denied any “history” of being sexually abused by anyone other than Berriozabal. The district court found that under the totality of the circumstances, Berriozabal was only permitted to produce limited testimony relative to the alleged conversation between A.U. and M.V. about virginity, as it related to M.V.
M.V.’s trial testimony largely repeated the details of BerriozabaTs sexual conduct which she had described at the pretrial hearings. On the diagram of a nude male, she identified the penis as the “lower area,” and on a diagram of a nude female, she identified the breasts as the “upper area” and the vagina as the “lower area.” She identified two specific dates, July 4, 2006, and July 7, 2006, involving sexual contact with Berriozabal. M.V. testified that on July 4, 2006, B.H. and C.H. left the residence to go shopping, and she stayed home with Berriozabal. While her mother and sister were gone, Berriozabal “put his lower area inside mine.” This happened in BerriozabaTs bedroom. She was not certain, but she also thought he made her put her mouth on his “lower area.”
M.V. testified that on July 7, 2006, B.H. and C.H. again left the residence to go shopping, and “[h]e made me go into his room and he pulled down his pants and lifted up my dress.” She said Berriozabal pulled down her underwear and “put his lower area in mine.” Then C.H. came into the house. M.V. did not recall telling Investigator Moreland that Berriozabal was not able to put his “lower area” into her “lower area.” According to M.V., her sister walked in, and Berriozabal said, “Oh, shit.” M.V. then went to the bathroom, while C.H. went outside to get their mother.
After stopping at the grocery store with the girls, B.H. took them to the hospital. M.V. testified that she heard her mother call Berriozabal and told him they were going to the hospital. As for the trip to Mexico, M.V. testified that Berriozabal was not planning to go until August or September 2006, after B.H. got “settlement” money from her previous employer. This was confirmed by B.H. Both M.V. and B.H. denied that there was any specific arrangement to leave for Mexico on July 7, 2006.
A jury convicted Berriozabal of one count of rape (K.S.A. 21-3502[a][2]), one count of attempted rape (K.S.A. 21-3301 and K.S.A. 21-3502[a][2]), and two counts of aggravated criminal sodomy (K.S.A. 21-3506[a][l]). Pursuant to Jessica’s Law, K.S.A. 2006 Supp. 21-4643, Berriozabal received two hard 25 life sentences, to be served consecutively, for the rape and attempted rape convictions. The court imposed a total of 330 months’ incarceration for the aggravated criminal sodomy convictions, to run consecutive to the hard 25 life sentences.
Berriozabal now appeals. This court’s jurisdiction is under K.S.A. 22-3601(b)(l) (off-grid crime).
Further facts will be presented as necessary for the analysis.
K.S.A. 60-455 Evidence
Berriozabal first contends the district court erred by admitting evidence of his prior uncharged sexual conduct with M.V. However, Berriozabal did not object to the evidence when it was admitted during trial and did not request a standing objection or otherwise preserve his pretrial objections. Nor did Berriozabal raise any objection to the hmiting jury instruction, which instructed the jury that it could consider the defendant’s prior conduct “solely for the purpose of proving the defendant’s motive, opportunity, intent, preparation, plan, knowledge, the relationship between the parties, or a continuing course of conduct.” Berriozabal did not argue that the instruction was erroneous in his brief before this court, although that issue was discussed at oral argument. Where the appellant fails to brief an issue, that issue is waived or abandoned. Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 191, 106 P.3d 483 (2005).
Although Berriozabal challenged the admission of the K.S.A. 60-455 evidence at the pretrial motion hearing, K.S.A. 60-404 requires a “timely” and specific objection to the admission of evidence, which this court has held means that a pretrial objection must be contemporaneously renewed during trial or preserved through a standing objection. See, e.g., State v. Wright, 290 Kan. 194, 207, 224 P.3d 1159 (2010); State v. Richmond, 289 Kan. 419, 428-30, 212 P.3d 165 (2009); State v. King, 288 Kan. 333, 340, 204 P.3d 585 (2009).
In this case, not only did Berriozabal fail to object at trial, the defense utilized the evidence as part of its strategy of discrediting M.V. Beginning with the defense’s opening statement and continuing with the questioning of various witnesses, the defense developed a theme that M.V.’s version was unbelievable because, if there had actually been sexual contact as often and for the period that M.V. reported, there would have been clues that others would have observed. Counsel questioned witnesses about subjects such as whether M.V. reported Berriozabal’s actions and whether there was a change in her behavior or attitude. Questions were posed to B.H. that elicited testimony that M.V. sometimes asked to stay home when B.H. went to the store and, at other times, did not object when left behind. This defense strategy is inconsistent with the argument Berriozabal asserts on appeal.
Accordingly, the issue of error in admitting K.S.A. 60-455 evidence was not preserved, and we do not reach the merits of Berriozabal’s arguments.
Psychological Examination of Victim
Next, Berriozabal argues that the district court abused its discretion by denying his motion for a psychological examination of M.V. We reject his arguments.
Standard of Review
The standard of review of a defendant’s motion for a psychological examination of a complaining witness in a sex crime case is whether the district court abused its discretion in denying the request. State v. Price, 275 Kan. 78, 83, 61 P.3d 676 (2003); State v. Rucker, 267 Kan. 816, 821, 987 P.2d 1080 (1999). In general, a defendant is entitled to a psychological examination of a complaining witness on a showing of compelling circumstances that would justify such an examination. State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979).
A determination of whether such compelling circumstances exist requires examination of the totality of the circumstances in the case, with the following nonexclusive list of factors to be considered:
(1) whether there was corroborating evidence of the complaining witness’ version of the facts,
(2) whether the complaining witness demonstrates mental instability,
(3) whether the complaining witness demonstrates a lack of veracity,
(4) whether similar charges by the complaining witness against others are proven to be false,
(5) whether the defendant’s motion for a psychological evaluation of the complaining witness appears to be a fishing expedition, and
(6) whether the complaining witness provides an unusual response when questioned about his or her understanding of what it means to tell the truth.
Price, 275 Kan. at 84; Gregg, 226 Kan. at 490; c.f., State v. McIntosh, 274 Kan. 939, 955, 58 P.3d 716 (2002) (motion for independent physical examination). These factors involve demonstrable evidence of a mental condition that requires further investigation, not the mere allegation of some untoward mental condition. Thus, the mere allegation of mental instability does not support the ordering of a psychological evaluation absent some real evidence. Likewise, the fact that a complaining witness may make inconsistent statements from time to time does not compel a mental evaluation of the witness. Gregg further suggests that it is rarely an abuse of discretion for a district court to fail to order a psychological examination. Gregg, 226 Kan. at 489.
Analysis of Factors
The parties focus on the Price factors; neither suggests that there is a relevant, additional factor to be considered in this case. Discussing the factors, Berriozabal agrees with the district court’s finding that two of the factors — the fourth (whether similar charges by the victim against others are proven to be false) and the sixth (whether the victim provides an unusual response when questioned about his or her understanding of what it means to tell the truth)— are not applicable to this case. In addition, Berriozabal points out that the district court did not believe that, by asking for a psychological examination of M.V., defense counsel was conducting a fishing expedition (the fifth Price factor). Berriozabal disagrees with the district court’s conclusion that the three other factors — the victim’s mental instability, the victim’s lack of veracity, and possible past sexual abuse suffered by the victim — were not applicable in this case.
Berriozabal first focuses on the mental instability factor. He points to the lack of a stable home environment for M.V., in that she had attended multiple elementary schools and lived with her grandmother most of the time because of her mother’s drug addiction problems. He contends that “[t]his had to have some adverse effect on the mental stability of M.V.” Yet, as aptly found by the district court, although there is evidence of an unstable home environment, Berriozabal presented no evidence of any mental instability on the part of M.V.
Berriozabal also attacks the veracity of M.V., contending that M.V.’s veracity came into question when she denied having made a statement about A.U.’s virginity but others testified that M.V. told her mother, B.H., that A.U. was not a virgin. The district court found that while this one incident indicated “some lack of veracity,” the testimony on the matter was confusing and this incident did not present a compelling reason to require M.V. to submit to a psychological examination.
Finally, Berriozabal contends that his motion for a psychological examination of M.V. should have been granted because of the possibility that M.V. had been sexually abused by Eddie, the brother of B.H.’s stepfather. However, there was merely an alleged statement by M.V. to Berriozabal that Eddie forced M.V. “to go to bed.” The district court did not find this accusation to be a compelling reason for ordering a psychological examination of M.V. in that there was no clear sexual connotation in the alleged statement, and M.V. denied any sexual abuse by a relative and further denied knowing anyone named Eddie.
Contrary to Berriozabal’s arguments, a review of Kansas cases leads to the conclusion that the district court did not abuse its discretion in determining that Berriozabal did not present compelling reasons justifying an order for a psychological examination of M.V. One example is State v. Gregg, 226 Kan. 481, where the defendant was convicted of aggravated sodomy and aggravated indecent solicitation of a child arising from two incidents involving Gregg and the complaining witness, an 8-year-old girl. This court affirmed the district court’s denial of the defendant’s motion for a psychological examination of the victim.
In Gregg, the factors urged by the defendant in support of the examination were the victim’s age, the seriousness of the crime, and a shortage of corroborating evidence at trial. The Gregg court noted that the defendant did not introduce facts “as to the child’s mental instability, lack of veracity, similar charges against other men proven to be false, or any other reason why this particular child should be required to submit to such an examination.” Gregg, 226 Kan. at 490. The Gregg court concluded that the defendant’s motion was “a fishing expedition embarked upon in the hope something damaging and admissible in the trial would be unearthed.” Gregg, 226 Kan. at 490.
In another case, State v. Blackmore, 15 Kan. App. 2d 539, 811 P.2d 54 (1991), aff'd in part and rev’d in part 249 Kan. 668, 822 P.2d 49 (1991), the Court of Appeals rejected the defendant’s argument that the district court erred in denying his motion to order an independent psychiatric examination of the complaining witness. The complaining witness had behavior problems, requiring treatment at a mental health center: “Jacob’s problematic behavior included hyperactivity, sleeplessness, bowel movements in his pants, and gagging himself at night until he vomited. Jacob also experienced an episode of rectal bleeding from a tear which his grandmother attributed to constipation.” Blackmore, 15 Kan. App. 2d at 540. A physical examination of the victim did not reveal any physical evidence of abuse. Blackmore, 15 Kan. App. 2d at 541. The Court of Appeals concluded with the following analysis:
“Not unlike Gregg, the record of testimony at trial contains no evidence that the complaining witness was mentally unstable or lacked veracity. There was no evidence that the complaining witness had made similar charges against other men that were proven to be false. While the complaining witness took medication as needed for earaches and asthma, there is no showing that the medication affected his veracity or mental stability. This evidence alone supports the trial court’s denial and, while defendant advances other contentions regarding the examination, it cannot be said that the trial court abused its discretion.” Blackmore, 15 Kan. App. 2d at 542.
On review, this court affirmed the Court of Appeals on this issue, emphasizing that the defendant’s failure to include a transcript of the preliminary hearing meant his veracity argument based on differences in the victim’s testimony at the two hearings could not be examined. State v. Blackmore, 249 Kan. 668, 670, 822 P.2d 49 (1991).
Finally, in State v. Lavery, 19 Kan. App. 2d 673, 877 P.2d 443, rev. denied 253 Kan. 862 (1993), the Court of Appeals found that the district court did not abuse its discretion in denying the defendant’s motion to compel the complaining witness to undergo a psychiatric examination. The Lavery court reasoned:
“Lavery’s morion contended that K.R. had been inappropriately exposed to sex and that she was using that knowledge to falsely accuse him. He presented evidence that K.R. was unsupervised most of the summer, used foul language, was possibly sexually molested by Ronnie Forth, another individual in the neighborhood, and had told a false story about killers in the school basement to two neighborhood girls. The court also noted there was an episode of K.R. ‘playing doctor’ with other neighborhood children.
“In making its decision, the court reviewed all the testimony presented and found there was no evidence presented which would tend to indicate that K.R. was using any knowledge of sexual activity she may have gained through sexual conduct with Forth to fabricate an allegation against Lavery. The court stated the lack of supervision and use of vulgar language did not indicate any kind of mental aberration, flight of fancy, or a lack of truth or veracity. The court concluded that, taken individually or viewed as a whole, the evidence presented did not reach the ‘compelling reason’ standard set out in Gregg. [Citation omitted.]
“In the instant case, there was no evidence indicating K.R.’s contact with Forth affected her mental stability or veracity. There was no evidence of similar charges by K.R. against other men proven to be false. There was one instance of K.R.’s telling a falsehood. However, the falsehood did not involve the subject matter of this case. Based on the compelling reason standard Lavery had to meet, the trial court’s denial of his motion cannot be said to be an abuse of discretion.” Lavery, 19 Kan. App. 2d at 676-77.
In the present case, the defense presented weaker evidence than the evidence presented in Gregg, Blackmore, or Lavery. M.V.’s testimony was consistent and showed no evidence of mental instability or a lack of veracity. There was only meager evidence of M.V.’s possible molestation by a distant family member. As the district court observed when making a ruling during the trial, children are most often “forced to go to bed” for reasons other than sex; often children are upset by such a directive, especially when it is given as a punishment. Further, the one instance where M.V. allegedly told a falsehood showed that she might have had some sexual knowledge, but that in itself is not a compelling reason for a psychological examination, especially since the context does not suggest she was fabricating an allegation against Berriozabal.
Considering the compelling circumstances standard which had to be met by Berriozabal, the district court’s denial of Berriozabal’s motion for a psychological examination of M.V. was not an abuse of discretion.
Rape Shield
Along similar lines, Berriozabal next argues that the district court erred by excluding evidence under K.S.A. 21-3525(b), commonly known as the Kansas rape shield statute. Specifically, Berriozabal sought to introduce evidence that M.V. had previously been sexually abused by Eddie. Berriozabal argues that the evidence should have been permitted because the State opened the door by eliciting the trial testimony of the trauma nurse who testified that M.V. indicated she had had no sexual contact prior to Berriozabal. We reject this argument.
Standard of Review/Rape Shield Statute
The threshold question on the admissibility of all evidence is relevancy. See State v. Reid, 286 Kan. 494, 507-09, 186 P.3d 713 (2008). K.S.A. 60-401(b) defines relevant evidence as evidence that is probative and material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard. Reid, 286 Kan. at 509.
Relevancy, in addition to being the focus of general considerations regarding the admission of evidence, is the key consideration when applying the rape shield statute, K.S.A. 21-3525(b), which prohibits the admission of evidence of a rape victim’s previous sexual conduct with any person, including the defendant, unless the district court first determines the evidence to be relevant and otherwise admissible. In the past, this court has concluded that prior sexual conduct evidence may be material if it is relevant to issues such as the identity of the rapist, consent of the complaining witness, or whether the defendant actually had intercourse with the complaining witness. See, e.g., State v. Bressman, 236 Kan. 296, 300, 689 P.2d 901 (1984). The court has cautioned, however, that “the legislature sent a clear message to the courts that a rape victim’s prior sexual activity is generally inadmissible since prior sexual activity, even with the accused, does not of itself imply consent to the act complained of.” State v. Stellwagen, 232 Kan. 744, 747, 659 P.2d 167 (1983).
The district court’s determination of whether evidence of prior sexual conduct will be probative of a material issue will not be overturned on appeal if reasonable minds could disagree as to the court’s decision. See State v. McMullen, 290 Kan. 1, 7, 221 P.3d 92 (2009); State v. Zuniga, 237 Kan. 788, Syl. ¶ 4, 703 P.2d 805 (1985).
Evidence in this Case
The evidence Berriozabal believes relevant under the rape shield statute involved a conversation M.V. allegedly had with A.U. about not being a virgin because of being raped by “an uncle” and another conversation M.V. allegedly had with Berriozabal about Eddie, who Berriozabal refers to as M.V.’s great uncle, forcing M.V. “to go to bed.” Berriozabal argues the evidence of a prior sexual assault was relevant to provide an alternative source for the healed vaginal tear found by the sexual assault nurse during her physical examination of M.V. Because the evidence could provide an explanation for the healed vaginal tear, a material issue is involved.
The question remains whether the evidence was probative. The district court concluded, at two points in the proceeding, that the evidence was too vague and speculative to establish proof of a prior sexual assault. On the first occasion, following the pretrial arguments on the issue of M.V.’s prior sexual conduct, the district court denied Berriozabal’s motion to admit such evidence, finding that the alleged incident between M.V. and Eddie was “if anything, a mere possibility but not in any way reflected in the record as a probability.”
Then, Berriozabal again moved to admit the evidence following the testimony of the sexual assault nurse. Testifying for the prosecution, the nurse told the jury that during her examination of M.V. she asked M.V. if she had ever experienced any other sexual abuse. M.V. “denied that” and also denied being sexually active. The nurse further testified that she found an area on M.V.’s vagina that appeared to be a “healed transaction” or tear.
The testimony regarding M.V.’s denial of being sexually active was contrary to the proffered testimony of A.U. Consequently, the district court permitted only limited testimony relative to the argument between M.V. and A.U. However, the district court again denied the admission of evidence regarding the conversations about Eddie, stating:
“Unfortunately, none of the witnesses [at the pretrial hearings] seemed to know a[n] Eddie.... [M.V.] continued to testify and deny [at the pretrial hearings] that there was any activity other than the simple statement. . . that she was forced to go to bed. The inference is to be drawn whether that was some type of sexual contact or whether there was just a disciplinary matter, she had to go to her room and to go bed . . . .”
Analysis
Berriozabal offers no case law in support of his arguments that the “Eddie” evidence was admissible.
The State cites and distinguishes a case that has some factual similarities to this case. In State v. Bourassa, 28 Kan. App. 2d 161, 15 P.3d 835 (1999), rev. denied 269 Kan. 934 (2000), the alleged rape and kidnapping victim had previously told police that her father had sexually assaulted her. The victim had been with her father on the morning of the alleged rape, and the defendant argued that the rape shield evidence was relevant to show that the victim’s father could have committed the crimes. Bourassa, 28 Kan. App. 2d at 168. The Court of Appeals agreed and reversed for further proceedings.
We agree with the State that the present case is distinguishable in that in this case there was a lack of proof of the victim’s prior sexual molestation. As the district court found, although M.V. allegedly tearfully told Berriozabal that Eddie “forced her to go to bed,” she mentioned no details to confirm that this was an experience involving sexual contact. At trial and at pretrial hearings, M.V. consistently denied the existence of this alleged sexual assault and denied knowing a person named Eddie. The other evidence related to A.U.’s reporting that M.V. said she was raped by an uncle, but A.U. could not remember any further details and could not remember the uncle’s name. M.V. denied making any such statement to A.U.
Given the nature of this evidence, reasonable people could agree with the district court that the scant evidence regarding Eddie was too vague, speculative, and uncorroborated to be probative. As such, we conclude the district court did not abuse its discretion.
Cruel and Unusual Punishment
Next, Berriozabal argues that his two consecutive hard 25 life sentences constitute cruel and/or unusual punishment under § 9 of the Kansas Constitution Bill of Rights or die Eighth Amendment to the United States Constitution.
The life sentences imposed upon Berriozabal were statutorily mandated. Under K.S.A. 2006 Supp. 21-4643, for certain enumer ated offenses — including the rape of a child under 14 years of age (K.S.A. 21-3502[a][2]) and the attempted rape of a child under 14 years of age (K.S.A. 21-3301 and K.S.A. 21-3502[a][2]) — committed on or after July 1, 2006, by a defendant who is 18 years of age or older, the legislature requires that the defendant “shall be sentenced to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years” unless, for first-time offenders, substantial and compelling reasons justify a departure. K.S.A. 2006 Supp. 21-4643(a)(l), (d). Likewise, for offenses committed on or after July 1, 2006, a person convicted of a sexually violent crime and who is 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. 2006 Supp. 22-3717(d)(1)(G). Rape and attempted rape are statutorily defined as sexually violent crimes. K.S.A. 2006 Supp. 22-3717(d)(2)(A), (K).
Unlike other defendants who have argued his or her life sentence is a cruel or unusual punishment, Beniozabal presented these constitutional arguments to the district court before sentencing. See, c.g., State v. Mondragon, 289 Kan. 1158, 1162-64, 220 P.3d 369 (2009); State v. Easterling, 289 Kan. 470, 485-86, 213 P.3d 418 (2009). The issue was first raised in Berriozabal’s motion for a dis-positional departure when he stated that a hard 25 life sentence would be “disproportionate and cruel and unusual under the state and federal constitutions.” Then, during the sentencing hearing, defense counsel advanced arguments regarding Berriozabal’s constitutional concerns.
The district court ultimately denied Berriozabal’s motion for a dispositional departure but in doing so did not make specific findings regarding Berriozabal’s cruel and unusual punishment arguments.
Beniozabal renewed his arguments on appeal, citing to the Eighth Amendment to the United States Constitution and to § 9 of the Kansas Constitution Bill of Rights. Following the submission of briefs, this court requested supplemental briefing on the question of whether the three-part test stated in State v. Freeman, 223 Kan. 362, Syl. ¶ 2, 574 P.2d 950 (1978), for determination of whether a sentence violated § 9 of the Kansas Constitution Bill of Rights should be modified in light of subsequent Eighth Amendment decisions of the United States Supreme Court, specifically, Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003); Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003); Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991); Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), and Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). This court sought the parties’ input on this question that had been raised in another case being heard on the same docket, State v. Gomez, 290 Kan. 858, 235 P.3d 1203 (2010).
Approximately 2 weeks after oral arguments in this case, the United States Supreme Court issued another decision addressing the Eighth Amendment, Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). Shortly thereafter, Berriozabal requested proceedings in this case be stayed, that he be allowed to file a supplemental brief raising an additional issue regarding his hard 25 life sentence for attempted rape, and that the case be remanded to the district court. The motion did not mention Graham. We denied the motion to remand but stayed proceedings and allowed the additional briefing. Before the parties’ supplemental briefs were filed, this court issued a decision in Gomez addressing the arguments regarding the impact of the United States Supreme Court cases on the Freeman three-part test. Despite the additional briefing and the rapidly evolving case law on this issue, neither party in this case submitted a letter of additional authority under Supreme Court Rule 6.09 (2010 Kan. Ct. R. Annot. 48) addressing either Graham or Gomez or the application of those cases to the facts presented here.
Hence, there is nothing to add to the considerations discussed in Gomez. Consequently, we see no need to repeat our Gomez analysis here. In summary, regarding arguments made under § 9 of the Kansas Constitution Bill of Rights, we reiterated and confirmed the continued viability of the three-part test this court had established in Freeman. In Gomez, we stated:
“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. A three-part test is utilized to administer this principle: (1) The nature of file offense and the character of the offender should be examined with particular regard to the 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 injury 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.” State v. Gomez, 290 Kan. 858, Syl. ¶ 9.
We also followed our prior case law in stating that this three-part test, which we have generally referred to as the Freeman factors, includes both legal and factual inquiries and no single factor controls the outcome. Consequently, the issue could not be determined for the first time on appeal because appellate courts do not make factual findings and instead review those made by a district court. Gomez, 290 Kan. at 867-68.
This result in Gomez did not vary from the fairly long line of recent cases, some of which are cited above, in which we have determined a defendant failed to properly preserve a § 9 challenge by not raising the issue before the district court. In this case, however, Berriozabal raised the question in his motion and at his sentencing hearing. In this regard, his situation is more like that in State v. Seward, 289 Kan. 715, 217 P.3d 443 (2009).
In Seward, the defendant raised state and federal cruel and/or unusual punishment challenges during plea negotiations, in his motion for downward departure, and during Ins sentencing hearing. As in this case, the district court did not make findings regarding any of the Freeman factors. This court noted that appellate courts do not make factual findings but review those made by district courts. We noted, however, that there had been confusion in our case law regarding whether the burden of assuring that findings were adequate for appeal fell on a party or on the district court. After discussion, we concluded:
“Supreme Court Rule 165 (2008 Kan. Ct. R. Annot. 235) places the primaiy duty for arriving at adequate findings and conclusions on the district judge. A defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must, however, ensure that the findings and conclusions by the district judge are sufficient to support appellate argument by the filing of a motion invoicing the judge’s duty under Rule 165, if necessary.” Seward, 289 Kan. 715, Syl. ¶ 3.
Despite the fact the defendant in that case had not taken steps to assure adequate findings had been made, we remanded the case for further proceedings, but cautioned:
“We emphasize that we believe this case to be exceptional. In the future, a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by fifing of a motion invoking the judge’s duty under Rule 165, if necessary.” Seward, 289 Kan. at 721.
Seward was filed on October 2, 2009. The journal entry in this case was filed on April 7, 2008, before we had made it clear that a defendant would have the duty to ensure adequate findings of fact. Hence, when this journal entry was filed, BerriozabaTs duty under Rule 165 was unclear. Furthermore, Berriozabal did as much to preserve his § 9 cruel or unusual punishment argument as had Seward. These circumstances lead us to conclude that Berriozabal is entitled to the same relief: remand for entry of sufficient factual findings and conclusions of law on the issue of whether a life sentence in this case violates § 9 of the Kansas Constitution Bill of Rights.
There remains the question of whether Berriozabal has preserved an issue under the Eighth Amendment to the United States Constitution and, if so, whether there is a legal basis for such a claim under the case law of the United States Supreme Court. We considered these same issues in Gomez. In doing so, we reached the following conclusions regarding the framework for an Eighth Amendment challenge after the Graham decision:
“An Eighth Amendment challenge to a term-of-years sentence as disproportionate and therefore cruel and unusual falls into one of two general classifications. The first classification involves challenges that argue the term of years is grossly disproportionate given ah the circumstances in a particular case. The second classification comprises cases in which the court implements the proportionality standard by certain categorical restrictions.”
“In conducting an Eighth Amendment analysis to determine whether a sentence for a term of years is grossly disproportionate for a particular [offender’s] crime, a court must begin by comparing the gravity of the offense and the severity of the sentence. This analysis can consider a particular offender’s mental state and motive in committing the crime, the actual harm caused to the victim or to society by the offender’s conduct, any prior criminal history, and a particular offender’s propensity for violence. In the rare case in which this threshold comparison leads to an inference of gross disproportionality, the court should then compare the [offender’s] sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. If this comparative analysis validates an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and unusual.”
“An Eighth Amendment challenge that the length of a term-of-years sentence is disproportionate given all the circumstances in a particular case is a case-specific challenge and is inherently factual. Because appellate courts do not make factual findings but review those made by district courts, such a challenge must be raised in the district court and a defendant must obtain the necessaiy findings of fact in the district court in order to preserve the issue for appellate review.”
“In limited circumstances, a categorical analysis may apply to an Eighth Amendment cruel and unusual challenge. In considering a categorical challenge, a 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. 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, the court must determine in the exercise of its own independent judgment whether the punishment in question violates the United States Constitution. The judicial exercise of independent judgment requires consideration of the culpability of the category of offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. In this inquiry the court also considers whether the challenged sentencing practice serves legitimate penological goals of retribution, deterrence, incapacitation, and rehabilitation.” Gomez, 290 Kan. 858, Syl. ¶¶ 4-7.
In Gomez, the defendant had not raised a possible Eighth Amendment challenge in the district court and on appeal had mentioned the Eighth Amendment only in passing. Hence, not only were there no factual findings, there was no way to determine whether the defendant was making a case-specific proportionality argument, a categorical argument, or both. Even though the impact of United States Supreme Court cases had been discussed in briefs before the court, it had only been done in the context of how those cases might impact an analysis under the Kansas Constitution. Noting this, we held:
“To preserve an issue for appellate review, a party must do more than incidentally raise the issue in an appellate brief. The party must present an argument and support that argument with pertinent authority or show why the argument is sound despite a lack of supporting authority or in the face of contrary authority. Otherwise, the argument will be deemed abandoned.” Gomez, 290 Kan. 858, Syl. ¶ 8.
In contrast to Gomez’ situation, Berriozabal’s motion for sentencing departure included a reference to the federal Constitution, although the Eighth Amendment was not specifically mentioned. His brief on appeal cited the Eighth Amendment and federal cases. Then, albeit at this court’s request, he discussed the specifics of an Eighth Amendment analysis. Hence, Berriozabal has preserved and pursued an Eighth Amendment issue.
Nevertheless, because Berriozabal has not filed a letter of supplemental authority, we are left to guess about the specifics of how he would frame his arguments under the analysis of Graham and Gomez. Further, like a Freeman analysis, a federal case-specific proportionality analysis requires factual findings. Consequently, we conclude that Berriozabal’s Eighth Amendment challenge should also be remanded to the district court.
On remand, Berriozabal should be required to articulate the specific grounds for his Eighth Amendment challenge — clarifying whether he brings a case-specific proportionality challenge, a categorical challenge, or both. Based on those arguments, the district court should make adequate findings of fact and conclusions of law regarding whatever challenge Berriozabal chooses to pursue under either the Eighth Amendment to the United States Constitution or § 9 of the Kansas Constitution Bill of Rights, or both.
Attempted Rape Sentence
As previously noted, following oral argument in this case, Berriozabal requested permission to file a supplemental brief regarding his hard 25 life sentence for attempted rape, contending for the first time that this court’s recent decision in State v. Horn, 288 Kan. 690, 206 P.3d 526 (2009), requires the imposition of a non-drug severity level 1 felony sentence for that conviction.
Arguing that the present situation is similar to those situations involving the identical offense sentencing doctrine as established in State v. McAdam, 277 Kan. 136, 142-45, 83 P.3d 161 (2004), Berriozabal urged us to permit him to raise the current sentencing issue on direct appeal in order to (1) successfully alter a sentence which, because it is authorized by Jessica’s Law, is technically not “illegal” and thus could not be later challenged and (2) avoid ineffective assistance of appellate counsel. See Laymon v. State, 280 Kan. 430, 438, 444, 122 P.3d 326 (2005) (invocation of McAdam, providing defendant could only be sentenced to lesser penalty when defendant is convicted under statutes containing identical elements but providing different penalties, will be unsuccessful if no direct appeal was taken and the invocation occurs for the first time on a collateral attack of sentence; appellate counsel’s failure to pursue McAdam line of argument was ineffective assistance of counsel); State v. McCoin, 278 Kan. 465, 467-68, 101 P.3d 1204 (2004) (no jurisdiction over untimely motion for arrest of judgment based on McAdam-, sentence in violation of McAdam not “illegal,” thus not a candidate for modification under K.S.A. 22-3504); State v. Barnes, 278 Kan. 121, 123-24, 92 P.3d 578 (2004) (sentence imposed contrary to the holding in McAdam is not “illegal”). We concluded these points had merit and allowed Berriozabal to file the supplemental brief.
In the supplemental brief, Berriozabal argued our decision in Horn mandated vacating his sentence for attempted rape. The State agreed. In Horn, the defendant was convicted of attempted aggravated sodomy. This court held the defendant was required to be given a Kansas Sentencing Guidelines Act sentence for a non-drug severity level 1 felony, as provided in K.S.A. 21-3301(c) (“An attempt to commit an off-grid felony shall be ranked at nondrug severity level 1.”), rather than a mandatory minimum prison term of 25 years under Jessica’s Law, K.S.A. 21-4643(a)(l)(G) (hard 25 life imprisonment also applies to “an attempt” of enumerated sexually violent crimes, including aggravated sodomy). Horn established that where the legislature permits the existence of conflicting statutory provisions prescribing different sentences to be imposed for a single criminal offense, the rule of lenity requires that any reasonable doubt as to which sentence applies must be resolved in favor of the offender. Because, by their terms, both statutes were equally applicable to Horn’s attempted aggravated sodomy conviction, die rule of lenity required the application of the statute defining attempt. Horn, 288 Kan. at 693-94.
Likewise, the attempted rape offense in Berriozabal’s case is defined by the attempt sentencing statute, K.S.A. 21-3301(c), which ranks the offense as a nondrug severity level 1 felony. Under Horn, although Jessica’s Law imposes a mandatory minimum prison term of 25 years to “an attempt” to commit rape, the rule of lenity requires die application of the statute defining sentences for an attempt to commit an off-grid crime. Thus, Berriozabal is entitied to receive a nondrug severity level 1 felony sentence for attempted rape.
Affirmed in part, sentences vacated in part, and remanded for resentencing.
Davis, C.J., not participating.
Thomas E. Malone, J., assigned. | [
-16,
-18,
-11,
-66,
58,
97,
42,
60,
82,
-29,
119,
83,
-91,
-37,
0,
123,
-101,
111,
116,
104,
-45,
-89,
39,
-63,
-74,
-5,
-39,
84,
51,
95,
-2,
-36,
14,
112,
90,
117,
38,
-54,
97,
84,
-114,
-121,
-103,
-16,
-109,
67,
54,
47,
82,
2,
49,
-100,
-13,
8,
26,
-61,
-55,
40,
91,
-67,
88,
-103,
-7,
7,
73,
20,
-93,
52,
-98,
2,
-16,
55,
-100,
57,
8,
-8,
-13,
22,
-122,
116,
109,
-117,
-92,
102,
98,
33,
60,
-57,
-83,
-87,
15,
127,
-99,
-90,
-104,
88,
66,
108,
-106,
-7,
84,
54,
45,
-6,
-25,
-114,
95,
100,
-124,
-53,
-112,
-79,
-52,
116,
66,
-7,
-13,
37,
17,
117,
-51,
-28,
84,
-43,
120,
-105,
-82,
-74
] |
The opinion of the court was delivered by
Brazil, J.:
This is a direct appeal from Calvin Ray Brown’s conviction by a jury for one count of attempted aggravated indecent liberties with a child in violation of K.S.A. 21-3301 and K.S.A. 21-3504(a)(3)(A) and one count of aggravated indecent solicitation in violation of K.S.A. 21-3511(a). The trial court sentenced the defendant to a life sentence under K.S.A. 21-4643 (“Jessica’s Law”), without the possibility of parole for 25 years, for Count I and 32 months to run concurrent with the primaiy offense for Count II. Jurisdiction is proper under K.S.A. 22-3601(b)(l).
Facts and Procedural Background
In autumn 2007, Brown lived with Nakisha H. and her two daughters, M.H. (age 2) and L.H. (age 10). Brown was, at one time, married to Nakisha’s mother, and Nakisha had a close relationship with him.
On the night of November 3, 2007, Nakisha went out with her sisters to celebrate a birthday. Brown was babysitting M.H., L.H., and their four male cousins.
The children were on the fold-out sofa bed in the living room, watching television, and Brown stayed downstairs in his room. At some point, L.H. fell asleep while watching T.V. L.H. testified that Brown woke her up by grabbing her arm and taking her downstairs to his room.
L.H. stated that Brown had L.H. sit on his couch and he stood in front of her and said, “I know what you and your cousin . . . have been doing. And if you don’t do what I tell you to do, I’m going to tell your mom on you, too.” L.H. testified that Brown was “talking real nasty to me like he wanted to do something with” her. L.H. was scared and ran up the stairs. She got M.H., who was with one of her cousins, and went to her room.
L.H. testified that Brown followed her to her room and said, “[I]f I can’t get nothing from you, can I just rub on your butt.” He asked her several times and she repeatedly said no.
L.H. then ran around Brown and ran out of the house in her nightclothes, and across the street to her great-grandmother’s house. Her great-grandmother, J. Williams, lived across the street along with L.H.’s grandmother, D. Moore. L.H. rang Williams’ doorbell and knocked on her door. L.H. also knocked on Moore’s window on the ground floor of the house. No one answered the door, so L.H. ran to her friend’s house behind Williams’ home. L.H. testified that Brown was chasing her.
Williams testified that she heard her doorbell ringing and knocking on her front door in the middle of the night on November 3, 2007. When she opened the door, no one was there but then Brown came around from the side of her house “mumbling something like he’s got a condom in his billfold.”
When L.H. ran to her friend’s home, no one answered the door. L.H. saw Brown standing on the side of Williams’ house. She continued to run, and she went up the block to the home of her uncle, K. Union. Union answered the door and L.H. told him, “[M]y pawpaw tried to molest me.” Union testified that L.H. told him that Brown tried to force himself on her and was chasing her down the street. Union did not see anyone in the street, but he called Naldsha and the police.
The police arrived shortly before Nakisha and her sisters. Officer Darrell M. Forrest talked to L.H. Officer Forrest testified that L.H. told him that “she was asleep and her grandfather came and woke her up, grabbed her by the arm and took her downstairs, began to touch her in the private areas on top of the clothing. . . . And told her not to say anything.....She said she yelled no, and then she ran upstairs and ran out of the house.”
L.H. also told her mother, Nakisha, what had happened. L.H. told her mother “that he had tried something with her.” Nakisha left L.H. at Union’s home and went back to her house to see Brown. Officer Michael Simmons arrested Brown, testifying that Brown was mumbling in the back of the patrol car and definitely smelled like he was intoxicated.
On November 15, 2007, Nakisha took L.H. to Sunflower House where Jennifer Coughlin, an interview specialist, interviewed her about what happened with Brown on November 3. L.H.’s interview with Coughlin was videotaped and used by the State at trial without objection from Brown.
The State initially charged Brown with one count of aggravated indecent liberties with a child. The information contained Brown’s date of birth and stated he was over the age of 18. The first and second amended information charged Brown with attempted aggravated indecent liberties with a child and aggravated indecent solicitation of a child. The amended informations did not include Brown’s age.
At trial, neither party objected to the instructions given or requested any additional instructions. The instructions relating to the attempted aggravated indecent liberties charge failed to instruct the jury to find that Brown was over 18 years of age at the time of the offense. The jury convicted Brown of both counts, and the district court sentenced Brown to a hard 25 sentence for the primary offense, attempted aggravated indecent liberties, and 32 months for aggravated indecent solicitation, to run concurrent with the hard 25 sentence.
Analysis
Prior Consistent Statements Were Not Preserved for Appeal
Brown argues that, before L.H. testified, the jury heard statements she made to Kevin Union, Nakisha H., and Jennifer Coughlin. Brown did not object at any time during the testimony of Union, Nakisha, or Coughlin.
On direct examination by the State, Union testified:
“Q. Olcay. And did you ask her what she was doing?
“A. Yes.
“Q. Okay. And what happened? What did she say?
“A. She told me that Calvin started or tried to force himself on her.
“Q. Okay.
“A. After that, I stepped outside to look around. Because in the process of her telling me what’s going on, she said that he had chased her up the street.
“Q. Okay.
“A. So I stepped outside. I didn’t see anyone. I came back in and started calling people and had called 911.
“Q. Okay. And did you talk to [L.H.] anymore about what had happened?
“A. I asked her again what happened. And she told me the same thing. And to be honest with you, I didn’t want to hear anymore. So I just left it at that and waited for the police to show up.
“Q. Okay and when you say to be honest you didn’t want to hear anymore, why was that?
“A. It’s not a comfortable thing to hear, especially when you have four daughters of your own. You don’t want to hear something like that.”
During cross-examination, Union testified:
“Q. All right. And you didn’t talk to — did you talk to [L.H.] about any of the details?
“A. No.
“Q. You said you didn’t want to hear that?
“A. I didn’t say it to her.
“Q. Okay.
“A. I just — that’s just what I felt.
“Q. Right. And you just decided to call the police and let them handle it. Correct?
“A. Yes.”
Nakisha testified to the following during the State’s direct examination:
“Q. Okay. And so you leave that night. And then what’s the next thing you hear from someone—
“A. I get a phone call from Kevin saying you need to come home now, like now.
“Q. Okay. Did he tell you why?
“A. It had something to do with [L.H.] and Calvin. Come home now, like come home.
“Q. Okay. And so when you responded, you went to Kevin Union’s house. And what did you do there?
“A. I checked on my daughter to make sure — to find out what was going on and to make sure she was okay.
“Q. Okay. And what did you find out?
“A. That he had tried something with her.
“Q. Okay. And did you ask her for specific details?
“A. I really didn’t. I just heard that part and left the house and went down to my house where Calvin was.”
Lastly, Coughlin did not testify regarding what L.H. told her in her interview at Sunflower House. Rather, Coughlin testified as to her own expertise and training, and she provided testimony to lay the foundation for the videotape of L.H.’s interview at Sunflower House. Thus, Brown’s argument that Coughlin’s testimony included inadmissible prior consistent statements is incorrect. It is unclear from Brown’s brief whether he also argues that the jury’s viewing of L.H.’s videotaped interview at Sunflower House was inadmissible as a prior consistent statement. Thus, we do not consider Brown’s arguments related to Coughlin’s testimony.
Without a contemporaneous objection, generally, this issue would not be preserved for appeal. K.S.A. 60-404; see State v. Hollingsworth, 289 Kan. 1250, 1255, 221 P.3d 1122 (2009) (citing State v. Bryant, 285 Kan. 970, Syl. ¶ 6, 179 P.3d 1122 [2008] [“As a general rule, a party must make a timely and specific objection to the admission of evidence in order to preserve the issue for appeal.”]). Brown contends these prior consistent statements bolstered L.H.’s testimony, impheating his fundamental right to a fair trial and also prejudicing the jury. See State v. Richmond, 289 Kan. 419, 428, 212 P.3d 165 (2009); State v. Spotts, 288 Kan. 650, 652, 206 P.3d 510 (2009).
Recently, we refused to review an evidentiary issue without a timely and specific objection even if the issue involves a fundamental right. See State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010) (citing Richmond, 289 Kan. at 429-30 [expressing concern that the contemporaneous objection rule “ ‘case-law exceptions would soon swallow the general statutory rule’ ”]); Hollingsworth, 289 Kan. at 1256-57; State v. King, 288 Kan. 333, 349, 204 P.3d 585 [2009]; State v. Mays, 277 Kan. 359, 384-85, 85 P.3d 1208 [2004]); see also State v. Johnson, 286 Kan. 824, 839, 190 P.3d 207 (2008) (holding that a failure to object to the admission of prior consistent statements resulted in the issue not being preserved for appeal).
This court has stated:
“ ‘The purpose of the rule requiring a timely and specific objection is to give “the trial court the opportunity to conduct the trial without using the tainted evidence, and thus avoid possible reversal and a new trial.” [Citation omitted.]’ ” Richmond, 289 Kan. at 429 (citing King, 288 Kan. at 342).
In State v. Johnson, this court considered a similar issue to the one raised by Brown. There the trial court permitted law enforcement officers to testify about what witnesses told them before the witnesses testified at trial. 286 Kan. at 838-39. The court found that, while “a violation of the right to confront witnesses can occur if a statement is admitted and the witness is not called to testify,” but in Johnson, the State did call the witnesses and the defendant was able to cross-examine them regarding their statements. 286 Kan. at 839.
The Johnson court then went on to note that, with no constitutional issue implicated, Johnson’s argument was actually one of prejudice. Johnson argued that admission of the consistent statements amounted to bolstering the witnesses’ credibility. The court went on to find:
“An argument based upon potential prejudice does not erase the need for a contemporaneous objection; in fact, it highlights the policies underlying the rule. The contemporaneous objection rule is designed to give the trial court the opportunity to correct or avoid error. State v. Boyd, 257 Kan. 82, 89, 891 P.2d 358 (1995). Additionally, as applicable to this case, the trial court is in a better position to weigh the probative versus prejudicial value of evidence. See, e.g., State v. Garcia, 285 Kan. 1, 18-19, 169 P.3d 1069 (2007). Therefore, it is inappropriate for this weighing to occur for the first time on appeal.” 286 Kan. at 840.
In Kansas, previous statements of persons present at trial are not hearsay and are admissible if that person is available for cross-examination and the statement would be admissible if made by the declarant while testifying. K.S.A. 60-460(a); see Johnson, 286 Kan. at 839; State v. Kesselring, 279 Kan. 671, 692, 112 P.3d 175 (2005) (holding investigator’s testimony regarding hearsay statements of various witnesses who were testifying at trial properly admitted pursuant to K.S.A. 60-460[a]); State v. Whitesell, 270 Kan. 259, 290, 13 P.3d 887 (2000) (finding that witnesses’ testimony of prior consistent statements of victim who testified at trial was not hearsay under K.S.A. 60-460[a]); State v. Aldrich, 232 Kan. 783, 784, 658 P.2d 1027 (1983) (holding officer’s testimony of prior consistent statements of victim who was testifying at trial properly admitted pursuant to K.S.A. 60-460[a]); State v. Taylor, 217 Kan. 706, 713, 538 P.2d 1375 (1975) (holding admission of officers’ testimony regarding hearsay statements of victim during investigation comes “squarely within” K.S.A. 60-460[a]).
Here, Brown did not object to admission of the statements during the testimony of Union, Naldsha, or Coughlin. As in Johnson, L.H. actually testified at trial and Brown was able to cross-examine her regarding her statements to Union, Naldsha, and Coughlin. Under the holding in Johnson, Brown failed to preserve this issue for appeal. Further, because L.H. was present and testified at trial regarding her statements to Union, Nakisha, and Coughlin, their prior statements were admissible under K.S.A. 60-460(a).
Voluntary Intoxication Instruction
Brown argues that the district court should have instructed the jury on voluntary intoxication because the crimes charged against him — aggravated indecent solicitation and attempted aggravated indecent liberties — required proof of specific intent, and there was sufficient evidence that Brown was intoxicated when he committed the crimes, thus preventing him from forming the requisite intent.
“A defendant is entitled to instructions on the law applicable to his or her theory of defense if there is evidence to support the theory. However, there must be evidence which, viewed in the light most favorable to the defendant, is sufficient to justify a rational factfinder finding in accordance with the defendant’s theory.” State v. Anderson, 287 Kan. 325, 334, 197 P.3d 409 (2008).
Because Brown failed to object to the district court’s failure to give an instruction, we review the issue under the clearly erroneous standard. State v. Roberson, 272 Kan. 1143, 1153, 38 P.3d 715, cert. denied 537 U.S. 829 (2002). “Instructions are clearly erroneous if there is a real possibility the jury would have rendered a different verdict had the instruction error not occurred.” State v. Marler, 290 Kan. 119, 124, 223 P.3d 804 (2010) (citing State v. Vasquez, 287 Kan. 40, 51, 194 P.3d 563 [2008]).
Brown’s second issue on appeal requires that this court find that attempted aggravated indecent liberties and aggravated indecent solicitation are specific intent crimes. Recently this court explained: “The distinction between general intent and specific intent crimes is whether, in addition to the intent required by K.S.A. 21-3201, the statute defining the crime in question identifies or requires a further particular intent which must accompany the prohibited acts.’ [Citation omitted].” State v. Richardson, 289 Kan. 118, 121, 209 P.3d 696 (2009).
“Although voluntary intoxication is not a defense to general intent crimes, a voluntary intoxication defense may be used to negate the intent element of specific intent crimes.” State v. Jones, 283 Kan. 186, 209, 151 P.3d 22 (2007) (citing State v. Sterling, 235 Kan. 526, 528, 680 P.2d 301 [1984]; K.S.A. 21-3208(2) (intoxication); State v. Ludlow, 256 Kan. 139, 144-45, 883 P.2d 1144 [1994]). K.S.A. 21-3208(2) states: “An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.” (Repealed L. 2010, ch. 136, sec. 307.)
Attempt and aggravated indecent liberties are specific intent crimes. K.S.A. 21-3301(a) (“An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof’ [Emphasis added.]); K.S.A. 21-3504(a)(3)(A) (“with the intent to arouse”); State v. Gaither, 283 Kan. 671, 692, 156 P.3d 602 (2007); State v. Belcher, 269 Kan. 2, 7, 4 P.3d 1137 (2000).
K.S.A. 21-3511 defines aggravated indecent solicitation of a child as:
“(a) Enticing or soliciting a child under the age of 14 years to commit or to submit to an unlawful sexual act; or (b) inviting, persuading or attempting to persuade a child under the age of 14 years to enter any vehicle, building, room or secluded place with intent to commit an unlawful sexual act upon or with the child.”
Brown was charged under K.S.A. 21-3511(a), and the jury was instructed on the elements of the crime per K.S.A. 21-3511(a). See PIK Crim. 3d 57.13. Only one Kansas case appears to discuss whether aggravated indecent solicitation under K.S.A. 21-3511(a) is a specific intent crime. See Richardson v. State, No. 97, 995, 2008 WL 1946836, at *3 (Kan. App. 2008) (unpublished decision). There, the Court of Appeals found:
“The specific intent requirement of K.S.A. 21-3511(a) is a requirement that the other person, in this case a child, commit or submit to an unlawful sex act. See State v. DePriest, 258 Kan. 596, 604, 907 P.2d 868 (1995); State v. Johnson, 283 Kan. 649, 654-55, 156 P.3d 596 (2007). There is no requirement in K.S.A. 21-3511(a) that the offender intend to commit the unlawful sex act with the child, just that the offender intends to solicit or entice the child to do so.” 2008 WL 1946836, at “3.
In State v. DePriest, when discussing solicitation to commit first-degree murder, this court stated:
“Solicitation is a specific intent crime under Kansas law. A person is not guilty of solicitation unless he or she intentionally commits the actus reus of the offense, viz., he or she commands, encourages, or requests another person to commit a felony with the specific intent that the other commit the crime he or she solicited. The actus reus of the solicitation occurs under Kansas law if a person by words or actions invites, requests, commands, or encourages a second person to commit a crime. The crime is complete when the person communicates the solicitation to another with the requisite mens rea. No act in furtherance of the target crime needs to be performed by either person.” 258 Kan. 596, 604, 907 P.2d 868 (1995).
We agree with the reasoning in Richardson and find that aggravated indecent solicitation under K.S.A. 21-3511(a) is a specific intent crime.
Having established that Brown’s convictions were for specific intent crimes, we must now consider whether Brown presented evidence sufficient for a rational fact-finder to find that Brown’s intoxication could negate the intent element of attempted aggravated indecent liberties and aggravated indecent solicitation.
Insufficient Evidence of Intoxication
In State v. Johnson, 258 Kan. 475, 485-86, 905 P.2d 94 (1995), this court stated:
“Unless evidence is presented that shows intoxication to the extent that a defendant’s ability to form the requisite intent was impaired, an instruction on the defense of voluntary intoxication is not required. State v. Gadelkarim, 247 Kan. [505,] 508, [802 P.2d 507 (1990)]; see State v. Smith, 254 Kan. 144, Syl. ¶ 2, 864 P.2d 709 (1993); State v. Shehan, 242 Kan. 127, Syl. ¶ 5, 744 P.2d 824 (1987). The defendant has the burden of showing that he or she was so intoxicated that his or her mental faculties were impaired by the consumption of alcohol or drugs. State v. Keeler, 238 Kan. 356, 360, 710 P.2d 1279 (1985).”
Brown presented evidence of his intoxication to the jury through the testimony of J. Williams, Officer Simmons, and L.H. During Williams’ cross-examination testimony, Williams stated that she had heard “[tjhrough hearsay” that Brown used drugs and that he always mumbled. She also stated that she was not close enough to him that night to see his eyes.
During direct examination by the State, Officer Simmons testified that, when Brown was in the back of the patrol car, he was mumbhng, and "[h]e was definitely intoxicated." On cross-examination by Brown, Officer Simmons testified that Brown was under the influence of alcohol and he could smell the alcohol.
L.H. also testified as to Brown’s intoxication. During cross-examination by Brown, L.H. stated that Brown was acting strange ah night. She testified that she knew he was drinking that night. During the State’s redirect examination, L.H. testified that she knew Brown was drinking because she saw him drink and because he was acting strange.
Based on the evidence in the record, it is not apparent that Brown satisfied his burden to show that he was intoxicated enough so that his mental faculties were impaired. In Johnson, the testimony before the jury was that the defendant had consumed beer and was “drunk.” 258 Kan. at 486. The court determined that this was insufficient to show that defendant’s consumption of beer impaired his mental faculties so as to render him unable to form the requisite intent. Likewise, here, there is testimony that Brown smelled of alcohol and was mumbling, but nothing to support the argument that his mental faculties were impaired.
Intoxication Was Not One of Brown’s Theories
During opening argument, defense counsel told the jury that the State had to prove that Brown “intentionally did the acts that they have alleged that he did.” Defense counsel cautioned the jurors to listen to all the testimony, paying particular attention to any discrepancies. He stated, “We’re taking the position that the State just can’t prove that he did these acts and that the testimony — or the acts that they’re trying to prove do not rise to the level of these acts and there’s no proof beyond a reasonable doubt.” Defense counsel did not argue during opening remarks that Brown was intoxicated.
During Brown’s closing argument, defense counsel pointed out the evidence before the jury that Brown was “acting strange” and may have been intoxicated at the time of the crime. Specifically, defense counsel argued:
“And I contend to you that taking into consideration the totality of the circumstances such as the lighting, ... or Mr. Brown being intoxicated and mumbling, whether his actions — -you know, she’s demonstrating something in a lit room at Sunflower House where she says she’s blocking and she thinks that, you know— she says, well, that’s what I think. That’s what I think was happening.
“So I just don’t believe that there’s enough evidence there for you to find that beyond a reasonable doubt that Mr. Brown did acts which could be considered as an overt act towards the perpetration of the crime of indecent liberties. That Mr. Brown did not commit an act of asking or soliciting [L.H.] for the purpose of committing a lewd or — a lewd fondling or touching.”
In State v. Trussell, 289 Kan. 499, 504, 213 P.3d 1052 (2009), the defendant argued that the trial court should have instructed the jury on self-defense because there was evidence in the record to warrant the instruction, though defendant did not request the instruction at trial. But, this court disagreed, noting that, “while inconsistent theories of defense are permissible, trial courts should not interfere with a defendant’s chosen defense theory by giving an instruction which neither party requested and which may undermine defendant’s chosen theory.” 289 Kan. at 505 (citing State v. Sappington, 285 Kan. 158, 164-65, 169 P.3d 1096 [2007]). The court went on to state “trial courts are not required to provide instructions for every possible theory of defense just because some supporting evidence may be produced at trial, if the defendant has not relied on the particular defense theory.” 289 Kan. at 505 (citing Sappington, 285 Kan. at 165).
In State v. Sappington, likewise, this court determined that it saw “no valid reason to require district courts to instruct juries on every possible theory of defense for which some evidence has been presented when the defendant has not relied upon that defense.” 285 Kan. at 165. In that case, the defendant — who did not request an instruction on voluntary intoxication at trial — also argued that the trial court should have instructed the jury on voluntary intoxication. This court acknowledged “that It is fundamental to a fair trial that the accused be afforded the opportunity to present his or her theory of defense,’ State v. Humphrey, 252 Kan. 6, 14, 845 P.2d 592 (1992), and [we] believe that imposing a defense upon a defendant which is arguably inconsistent with the one upon which he completely relies — by providing the jury a defense instruction that neither party requests — is akin to denying the defendant the meaningful opportunity to present his chosen theory of defense.” 285 Kan. at 165.
In this case, Brown’s theory of the case was that the State had not satisfied its burden of proof beyond a reasonable doubt. Brown’s argument focused on the discrepancies between the trial testimony of L.H. and her interview at Sunflower House, arguing that those discrepancies raised doubt. This theory is potentially inconsistent with an intoxication defense. Under a voluntary intoxication theory, Brown would have to argue that, even if the jury does find him guilty, then he was too intoxicated to form the requisite mental state. Under the holdings of Trussell and Sappington, when a defendant has not asked for an instruction, it is not the job of the trial court to instruct the juiy on a defense, particularly given this court’s concern that the defense may be inconsistent with the defendant’s chosen theory.
Deadlocked Jury Instruction
Brown did not object to Instruction No. 13 when it was given to the jury prior to deliberation; therefore, this court reviews the instruction under a clearly erroneous standard. See State v. Ellmaker, 289 Kan. 1132, 1145, 221 P.3d 1105 (2009). Under this standard of review, the court must determine whether “[it is] firmly convinced there is a real possibility the jury would have rendered a different verdict if the error had not occurred.” State v. Salts, 288 Kan. 263, 265-66, 200 P.3d 464 (2009).
Brown argues that the following language is clearly erroneous:
“Instruction No. 13
“Like all cases, this is an important case. If you fail to reach a decision, the charge is left undecided for the time being. It is then up to the State to decide whether to resubmit the undecided charge to a different jury at a later time. Another trial would be a burden on both sides.
“This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
“This does mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion.
“You may be leisurely in your deliberations as the occasion may require and take all the time you feel necessary.” (Emphasis added.)
Brown argues that the emphasized language above (“Another trial would be a burden on both sides.”) is reversible error because there is a real possibility that the jury could have rendered a different verdict without that language.
This court has determined that, if the trial court gives the “deadlocked juiy” instruction (PIK Crim. 3d 68.12) before the jury retires for deliberations, the instruction is not an error. See State v. Makthepharak, 276 Kan. 563, 569, 78 P.3d 412 (2003); State v. Anthony, 282 Kan. 201, 216, 145 P.3d 1 (2006).
This court has specifically addressed the language at issue in three recent cases. In State v. Salts, this court held that the lan guage “[a]nother trial would be a burden on both sides” is error because it is misleading and inaccurate; however, it was not reversible error. 288 Kan. at 266. The Salts court found that, under the clearly erroneous standard, there was no real possibility that the jury would have returned a different verdict without the instruction.
In State v. Ellmaker, this court acknowledged that the challenged language was error, finding it was misleading and inaccurate. But the court, again, found that there was no real possibility that the jury would have returned a different verdict without the error. 289 Kan. at 1146-47.
Most recently, in State v. Colston, 290 Kan. 952, 235 P.3d 1234 (2010), the court confirmed its holding in Salts and Ellmaker, finding that the giving of the Allen-type instruction to the jury prior to deliberations was error, but not reversible error. There the court found that the jury rendered its verdict within a few hours, and the jury members were polled and each agreed with the verdict. 290 Kan. at 976.
In Brown’s case, the jury returned its verdict exceptionally quick — merely 15 minutes after retiring to the jury room. In addition, the court gave the instruction to the jury prior to deliberations without objection from Brown. The court did not poll the jury in this instance, but when asked if he wanted to poll the jurors, Brown said no.
Thus, as in Salts, Ellmaker, and Colston, the giving of the Allen-type instruction was error. But we find that the evidence against Brown was such that the jury would not have rendered a different verdict if the error had not occurred.
Defendant’s Age
Brown presents two arguments revolving around the issue of his age. First, he contends that the district court did not have jurisdiction to sentence him under Jessica’s Law because the charging document did not state his age at the time of the offense. Second, Brown argues that the court erred by failing to instruct the juiy to find that he was 18 years of age or older at the time of the offense because his age was an essential element of the crime.
Brown’s arguments address jurisdiction, statutory interpretation, and constitutional interpretation; therefore, this court’s review is unlimited. State v. Bello, 289 Kan. 191, 195-96, 211 P.3d 139 (2009) (citing Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 [2006]; State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 [2007]); State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 [2006],
Charging Document
Brown argues that the district court did not have jurisdiction to sentence him under K.S.A. 21-4643 because the charging document did not allege in any count that Brown was 18 years of age or older at the time of the offense.
“The Sixth Amendment to the United States Constitution gives an accused the right to ‘be informed of the nature and cause of the accusation’; the Kansas Constitution Bill of Rights, § 10 mandates that ‘the accused shall be allowed ... to demand the nature and cause of the accusation against him.’ Generally, if a complaint fails to include an essential element of a crime charged, it is ‘fatally defective, and the trial court lacks jurisdiction to convict the defendant of the alleged offense.’ ” State v. Gonzales, 289 Kan. 351, 366, 212 P.3d 215 (2009) (citing State v. Moody, 282 Kan. 181, 197, 144 P.3d 612 [2006]).
In Gonzales, this court dealt with the same issue that Brown raises here. In Gonzales, as here, the defendant did not allege that the complaint was defective. Instead he argued that the district court did not have jurisdiction because the State failed to allege a “valid crime” under K.S.A. 21-4643. The Gonzales court noted that it had recently rejected defendant’s argument in State v. Gracey, 288 Kan. 252, 254, 200 P.3d 1275 (2009). 289 Kan. at 368.
When the charging document is challenged for the first time on appeal, “the defendant must show that the alleged defect either: (1) prejudiced the defendant’s preparation of a defense; (2) impaired the defendant’s ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant’s substantial rights to a fair trial.” Gracey, 288 Kan. at 254; see State v. Hall, 246 Kan. 728, 761, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003); see also State v. McElroy, 281 Kan. 256, 261, 130 P.3d 100 (2006) (applying the post-Hall analysis); State v. Shirley, 277 Kan. 659, 661, 89 P.3d 649 (2004) (same).
In Gonzales, this court held that the defendant was adequately informed of both the crime charged and the penalty. This court found that “the complaint against Gonzales listed his date of birth, stated the charge was for an off-grid person felony, and otherwise specifically listed the elements of aggravated indecent liberties with a child under the age of 14.” 289 Kan. at 369. Further, the court found that Gonzales did not “contend that the preparation of his defense or his rights to a fair trial were impaired. Nor ha[d] Gonzales shown that his conviction for aggravated indecent liberties with a child under the age of 14 affected any subsequent prosecution.” 289 Kan. at 369.
Applying the findings from Gonzales to Brown’s case, the facts are similar. In the initial information charging Brown with aggravated indecent liberties, the charging document included within the count that Brown was over the age of 18. But neither the first amended nor the second amended information contained facts pertaining to Brown’s age. In addition, the initial information and both subsequent amended informations stated that the charge was for an off-grid person felony and otherwise listed the elements of attempted aggravated indecent liberties with a child. Brown has not argued that his preparation of his defense was impaired, nor has he shown how his conviction has affected any subsequent prosecution. As such, we affirm his conviction.
Jury Instructions
Brown argues that this court should reverse his convictions for attempted aggravated indecent liberties because the trial court failed to instruct the jury to determine that Brown was over the age of 18 beyond a reasonable doubt. Several recent cases have dealt with this same issue and similar set of facts. See Colston, 290 Kan. 952; Reyna, 290 Kan. 666; State v. Morningstar, 289 Kan. 488, 213 P.3d 1045 (2009); Gonzales, 289 Kan. 351; Bello, 289 Kan. 191.
Attempted aggravated indecent liberties with a child is an off-grid person felony under K.S.A. 21-3504(c) and K.S.A. 22- 4643(a)(1)(G). Brown’s second charge — aggravated indecent solicitation — is a severity level 5 person felony under K.S.A. 21-3511(b), and it is not one of the Jessica’s Law felonies listed in K.S.A. 21-4643, requiring a mandatory term of 25 or 40 years in prison.
Brown is correct in his argument that, based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), defendant’s age at the time of the offense is an element of the crime if the State seeks to convict the defendant of the more serious, off-grid level of the offense. Gonzales, 289 Kan. at 371; Bello, 289 Kan. at 199-200. In Bello, Gonzales, and Momingstar, this court determined that the failure to instruct the juiy to make a finding on defendant’s age was error, and the result of that error was to vacate the sentence and remand for resentencing under the Kansas Sentencing Guidelines as a grid offense. Morningstar, 289 Kan. at 495; Gonzales, 289 Kan. at 372; Bello, 289 Kan. at 200.
But in the more recent State v. Colston, this court held that “[w]hen a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” Colston, 290 Kan. at 975 (citing State v. Reyna, 290 Kan. 666, Syl. ¶ 10, 234 P.3d 761 [2010]). In Reyna, the court determined that “[characterizing the omission of an element from the instructions to the jury [as an Apprendi-type error, i.e.,] as judicial factfinding of the omitted element, when that element enhances the maximum applicable sentence, does not change the harmless error analysis.” 290 Kan. 666, Syl. ¶ 11.
In Reyna, the defendant testified at trial and stated his own age. 290 Kan. at 679. In Colston, sufficient evidence of Colston’s age was presented through testimony of his son, who stated he was 29 years old and defendant’s daughter was 31. In addition, Colston’s girlfriend testified that she was 31 years old and Colston was about 20 years older than her. 290 Kan. at 974. In both cases, this court determined that there was sufficient evidence in the record establishing the defendant’s age such that any instructional error was harmless.
In Bello, Gonzales, and Momingstar, the State failed to present evidence of the defendant’s age at trial. 289 Kan. at 491-92; 289 Kan. at 371; 289 Kan. at 199.
In Brown’s case, there was little to no evidence of Brown’s age presented to the jury. Brown did not testily in his own defense; therefore, unlike Reyna, he did not state his age or date of birth before the jury. The only evidence presented to the jurors from which they could infer Brown’s approximate age was testimony from Nakisha. Nakisha stated that she was 27 years old at the time of trial. She testified that her mother, Denise Moore, was married to Brown at one time, but Brown was not Naldsha’s father. He was, however, her sisters’ (Janelle and Tamara) father. No evidence was presented as to the ages of Nakisha’s sisters.
We find that, under Bello, Gonzales, and Momingstar, there was insufficient evidence of Brown’s age for this court to find harmless error in this case. Thus, we vacate Brown’s sentence and remand to the district court for resentencing on the sentencing grid.
Because we are remanding Brown’s case on the age issue, we decline to address his remaining argument regarding cruel and unusual punishment.
Sentence vacated and remanded for resentencing.
Timothy E. Brazil, District Judge, assigned. | [
-16,
-20,
-35,
-65,
25,
-31,
26,
-80,
62,
-9,
-14,
-13,
-49,
-18,
4,
123,
-103,
109,
84,
113,
-112,
-73,
15,
-63,
-14,
-5,
-112,
-47,
-79,
91,
-18,
-98,
8,
64,
6,
-15,
-26,
-38,
117,
-36,
-122,
7,
-56,
-12,
17,
66,
38,
43,
74,
15,
53,
-97,
-77,
43,
29,
-50,
-87,
104,
89,
45,
72,
-107,
-117,
23,
-104,
112,
-93,
32,
-100,
-89,
120,
55,
-104,
-79,
0,
-24,
115,
-90,
-126,
116,
111,
-119,
45,
-92,
98,
36,
-115,
-28,
-7,
-39,
-113,
110,
-67,
-90,
-104,
88,
0,
108,
-65,
-101,
100,
20,
57,
-8,
67,
-50,
41,
100,
-86,
-49,
52,
-111,
-51,
113,
-42,
-72,
-30,
39,
32,
101,
-57,
-82,
68,
-41,
121,
-45,
-34,
-9
] |
The opinion of the court was delivered by
Nuss, C.J.:
William Jolly pleaded guilty to one count of rape, an off-grid person felony pursuant to K.S.A. 21-3502(a)(2) and (c). Per K.S.A. 21-4643(a) (Jessica’s Law), the prescribed sentence was life imprisonment with a mandatory minimum of 25 years. The district court instead ordered Jolly to serve 300 months’ incarceration with lifetime postrelease supervision and lifetime electronic monitoring. Our jurisdiction to hear Jolly’s appeal of his sentence is under K.S.A. 22-3601(b)(l).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court follow statutory authority to impose a 300-month sentence? No.
2. Did the district court err by imposing lifetime electronic monitoring as a condition of Jolly’s sentence? Yes.
Accordingly, we vacate Jolly’s sentence and remand for resentencing.
Facts
William Jolly was charged with the off-grid person felony of rape (sexual intercourse with a child under 14 years old) pursuant to K.S.A. 21-3502(a)(2) and (c). He was additionally charged with the off-grid person felony of aggravated indecent liberties with a child pursuant to K.S.A. 21-3504(a)(3)(A) and (c). Under Jessica’s Law, both offenses carry a sentence of imprisonment “for life with a mandatory minimum term of imprisonment of not less than 25 years.” K.S.A. 21-4643(a)(l)(B) and (C).
On February 11, 2008, Jolly pleaded guilty to the rape charge. In exchange, the State agreed to drop the charge of aggravated indecent liberties with a child. During the plea hearing Jolly stipulated that the State’s exhibits, the probable cause affidavit, and his written confession provided the factual basis through which the court could accept his plea.
According to the plea hearing exhibits, on July 15,2007,12-year-old C.E. came over to play with Jolly’s son. At some point during the day, Jolly lay down in his bed and C.E. later joined him. Jolly stated that he was curious as to how desensitized C.E. was from a previous sexual assault, and he began touching her to see “how far she would let [him] go.” Jolly placed his hands up C.E.’s shirt and began touching her breasts. According to Jolly, C.E.’s only reaction was a “blank stare.” Jolly then began rubbing the outside of C.E.’s vagina and then penetrated her vagina with his finger.
Jolly stated that at this point his whole “mindset changed” from “clinical exploration to more the lover attitude to make her feel good.” He then pulled his penis out of his pants and rubbed it on C.E. to become erect. Jolly penetrated C.E.’s vagina with his penis and only removed it when he heard a noise that caused him to “snap back to reality.” C.E. then left Jolly’s residence and later reported the incident to her grandmother.
The parties agree that Jolly had a criminal history score of I and if sentenced pursuant to K.S.A. 21-4701 et seq., the Kansas Sentencing Guidelines Act (KSGA), his presumptive grid sentence would be between 147 and 165 months. At sentencing Jolly requested a departure from the life sentence and mandatory minimum of Jessica’s Law pursuant to K.S.A. 21-4643(d). Dr. Robert W. Barnett, a clinical psychologist, testified on Jolly’s behalf. Barnett did not consider Jolly a pedophile or sexual predator and felt Jolly’s chances of recidivism were low. He ultimately recommended a sentence of probation. In additional support of departure, Jolly also argued that he accepted responsibility for his actions and did not put C.E. through a trial and die ordeal of testifying.
The State opposed the departure motion. It relied heavily on the facts outlined in Jolly’s confession, noting that C.E. was a lifelong family friend and that Jolly continued to minimize and justify his actions as trying to help her heal from a previous sexual assault.
After hearing testimony and arguments, the court sentenced Jolly to 300 months’ imprisonment with lifetime postrelease supervision and lifetime monitoring. The judge stated:
“Under the Jessica’s Law statute, as you know, Mr. Jolly, because of your age and the victim’s age and the nature of this offense the Court must impose a life sentence without the possibility of parole for 25 years unless the Court does find substantial and compelling reasons to justify a departure. And considering — I— this Court, certainly, does consider that you did accept responsibility by cooperating with law enforcement, and you did not put this child through a trial, and you have no criminal history prior to this time. The Court is going to find that there are, anyway, a few substantial reasons for a departure from that life sentence, but I’m going to impose a sentence other than imposing a life sentence without possibility of parole for 25 years. I’m going to impose a 25 years sentence, which would be 300 months, with the Department of Corrections. And I’m going to impose life-time post-release supervision. And the Court does find this to be a sexually motivated offense and the Court will order that you register as a sex offender for life. And you’ll be subject to life-time monitoring.”
Jolly now appeals the sentence of 300 months and “life-time monitoring.”
Analysis
Issue 1: The district court did not follow statutory authority to impose a 300-month sentence.
Parties’ Arguments
The parties dispute the nature of the sentence imposed. Jolly argues that the 300-month sentence was the result of two different departures. First, he contends that the court granted his motion for departure from the usual life sentence and mandatory minimum of Jessica’s Law to the KSGA sentencing grid under K.S.A. 21-4643(d). Second, Jolly asserts that the court then imposed, on its own volition, an upward durational departure to 300 months from Jolly’s presumptive grid sentence of 147 to 165 months. He argues that the court erred when it departed upward on its own volition because it failed to comply with the procedural rules. See K.S.A. 21-4716(b); K.S.A. 21-4718(a)(3), (4). Jolly ultimately requests that this court vacate the “300-month sentence and remand with directions to sentence Mr. Jolly in the presumptive guidelines range.”
The State responds that this court should “remand for further findings by the sentencing court” because the sentence was unclear. In support of its argument, the State notes that the district court “found that there were aggravated circumstances in that it noted the defendant’s age in relation to the victim’s age, the defendant’s relationship with [victim] as a family friend, and the fact that the defendant continued to minimize his behavior at sentencing and failed to understand the seriousness of what he had done.”
Standard of Review
This issue requires this court to interpret language within the relevant provisions of the KSGA. Statutory interpretation is a ques tion of law over which this court has unlimited review. State v. Ballard, 289 Kan. 1000, 1010, 218 P.3d 432 (2009).
Discussion
Under Jessica’s Law, while the usual sentence is life imprisonment with a mandatoiy minimum of 25 years, the district court may impose a departure to the sentencing guidelines. K.S.A. 21-4643(d) provides:
“On or after July 1, 2006, for a first time conviction of an offense listed in paragraph (a)(1), the sentencing judge shall impose the mandatoiy minimum term of imprisonment provided by subsection (a), unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure. If the sentencing judge departs from such mandatoiy minimum term of imprisonment, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure. The departure sentence shall he the sentence pursuant to the sentencing guidelines act, KS.A. 21-4701 etseq., and amendments thereto, and, subject to the provisions of K.S.A. 21-4719, and amendments thereto, no sentence of a mandatory minimum term of imprisonment shall be imposed hereunder.” (Emphasis added.)
Jolly clearly moved the district court for a departure from the usual Jessica’s Law sentence pursuant to K.S.A. 21-4643(d). However, the court’s resultant analytical path is unclear. The court appeared to find there were substantial and compelling reasons for a departure. However, the court never mentioned that it was departing to the “sentence pursuant to the sentencing guidelines act, K.S.A. 21-4701.” See K.S.A. 21-4643(d). Nor did it acknowledge Jolly’s presumptive sentence range under the KSGA of 147 to 165 months. Rather, the court simply departed from life imprisonment to 300 months without explaining how it got there.
We held in State v. Gracey, 288 Kan. 252, 259, 200 P.3d 1275 (2009), that “K.S.A. 21-4643(d) provides that in the presence of substantial and compelling reasons, the district court may impose a sentence pursuant to the sentencing guidelines.” (Emphasis added.). Today in State v. Spencer, 291 Kan. 796, 248 P.3d 256 (2011), we expressly concluded that the sentencing court that departs under 21-4643(d) should first go to the applicable grid box appropriate to the defendant’s criminal history and to “the severity level assigned to the crime when it lacks the element of disparity between the defendant’s and the victim’s ages.” 291 Kan. at 827, 830.
Accordingly, we must conclude the court’s departure was not performed according to either Jessica’s Law or the KSGA. We acknowledge that after a court’s departure to the guidelines, Spencer, Ballard, and Gracey then allow departures from the guidelines. Spencer, 291 Kan. at 803 (once sentence becomes a guidelines sentence, district court free to depart from sentencing grid); Ballard, 289 Kan. at 1008-09 (“ ‘once sentencing has shifted to the sentencing guidelines, nothing precludes the district court from granting a departure, either dispositional or durational’ ”); Gracey, 288 Kan. at 259. However, the requirements of neither the first step into the guidelines nor the second step away from the presumptive guidelines sentence can be ignored, and all departure procedures must be followed. See Spencer, 291 Kan. at 830. Consequently, Jolly’s 300-month sentence is illegal. Ballard, 289 Kan. at 1010 (illegal sentence is “ ‘ “a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized” ’ ”). As a result, we vacate Jolly’s sentence and remand for resentencing.
Jolly has also argued that the State failed to cross-appeal, pursuant to K.S.A. 21-4721(a), the district court’s proper departure from the usual Jessica’s Law sentence to the sentencing guidelines. Accordingly, he asserts, this court should review only the legality of the upward durational departure to 300 months. The problem with his argument is that the district court imposed an illegal sentence.
Issue 2: The district court erred hy imposing lifetime electronic monitoring as a condition of Jolly's sentence.
Jolly further contends that the district court erred by imposing lifetime electronic monitoring. While his claim could now be disregarded because of our vacation of his sentence and remand on previously noted grounds, we address it to supply guidance for resentencing. See State v. Kunellis, 276 Kan. 461, 476, 78 P.3d 776 (2003).
Standard of Review
As with Issue 1, this issue requires interpretation of sentencing statutes, a question of law over which this court has unlimited review. Ballard, 289 Kan. at 1010.
Discussion
While not clearly identified from the transcript of the sentencing hearing, the parties agree that the “lifetime monitoring” condition of Jolly’s sentence was imposed pursuant to K.S.A. 22-3717(u). That statute provides:
“An inmate sentenced to imprisonment pursuant to K.S.A. 21-4643, and amendments thereto, for crimes committed on or after July 1, 2006, shall be placed on parole for life and shall not be discharged from supervision by the Kansas parole board. When the board orders the parole of an inmate pursuant to this subsection, the board shall order as a condition of parole that the inmate be electronically monitored for the duration of the inmate's natural life.” (Emphasis added.)
The statute plainly states that the parole board shall order electronic monitoring as a condition of parole. K.S.A. 22-3717(u) does not also provide authority for a sentencing court to order electronic monitoring under these circumstances. Additionally, K.S.A. 21-4603d, which authorizes numerous dispositions for persons who have been found guilty of a crime, does not provide authority for a sentencing court to impose parole conditions.
We therefore conclude the district court incorrectly imposed electronic monitoring pursuant to K.S.A. 22-3717(u).
Sentence vacated and case remanded to the district court for resentencing.
Caplinger, J., assigned. | [
-48,
-20,
-36,
-33,
59,
-29,
58,
24,
90,
-73,
-25,
115,
-87,
-42,
0,
123,
59,
103,
85,
105,
-45,
-73,
55,
-63,
-78,
-13,
-39,
-41,
-77,
91,
-20,
-4,
72,
-112,
2,
-11,
34,
-56,
-13,
84,
-114,
-121,
-104,
-48,
66,
3,
38,
41,
26,
10,
53,
30,
-13,
42,
30,
-54,
9,
100,
73,
-83,
72,
-13,
-15,
31,
27,
116,
-93,
5,
52,
5,
-16,
38,
-40,
-71,
0,
-20,
-13,
38,
-124,
116,
79,
-119,
-92,
-26,
98,
33,
77,
-42,
-19,
-119,
-97,
94,
-84,
-90,
-104,
88,
35,
12,
-105,
-39,
92,
-108,
46,
122,
-25,
-122,
93,
101,
35,
-54,
-76,
-111,
-51,
-76,
10,
-72,
-13,
12,
33,
37,
-57,
-26,
92,
-59,
122,
19,
46,
-46
] |
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against respondent Maiy Ivester of Overland Park, Kansas, an attorney admitted to the practice of law in Kansas in 1991.
On May 12, 2010, 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 failed to file an answer to the formal complaint. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on June 24, 2010. The respondent failed to appear at this hearing. The hearing panel determined that respondent violated KRPC 1.3 (2010 Kan. Ct. R. Annot. 422) (diligence); 1.4(a) (2010 Kan. Ct. R. Annot. 441 (communication); Kansas Supreme Court Rule 207(b) (2010 Kan. Ct. R. Annot. 308) (failure to cooperate in disciplinary investigation); and Kansas Supreme Court Rule 211(b) (2010 Kan. Ct. R. Annot. 327) (failure to file answer in disciplinary proceeding). 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
“2. In 2008, Amy Highmoor retained the Respondent in a post-divorce child support matter. Ms. Highmoor paid the Respondent $1,000.00 for the representation. On May 15, 2008, the Respondent appeared in behalf of Ms. Highmoor and Jeffrey N. Lowe appeared in behalf of Ms. Highmoor’s former husband, Donald D. Nagel. At the hearing, the court ordered that Mr. Nagel pay Ms. Highmoor child support. Following the hearing, however, the Respondent failed to prepare the journal entry as ordered by the court.
“3. Six weeks later, on June 30, 2008, the Respondent forwarded a proposed journal entry to Mr. Lowe. On July 7, 2008, the Respondent and Mr. Lowe spoke by telephone regarding the proposed journal entry. The following day, July 8, 2010, Mr. Lowe wrote to the Respondent and requested that language be added to the journal entry regarding the Kansas Payment Center.
“4. Ms. HighmoorcontactedtheRespondentseveraltimesregardingfhejournal entry. The Respondent scheduled appointments with Ms. Highmoor but the Respondent failed to keep the appointments.
“5. In November, 2009, the Respondent moved from Wichita to Overland Park. The Respondent maintained a post office box in Wichita, but seldom retrieved the mail in the box. After she moved, the Respondent neglected to notify her clients that she had moved.
“6. Eventually, on December 17, 2009, Ms. Highmoor filed a complaint against the Respondent.
“7. After receiving a copy of the complaint, on January 5, 2010, the Respondent appeared at the Disciplinary Administrator’s office without an appointment. At that time, the Respondent met with Ms. Knoll and Terry L. Morgan, Special Investigator. The Respondent assured Ms. Knoll and Mr. Morgan that she would immediately prepare the journal entry for Ms. Highmoor. Additionally, the Respondent agreed to cooperate in the investigation of the complaint.
“8. The next day, on January 6, 2010, the Respondent forwarded a new proposed journal entry to Mr. Lowe. However, by that time, Mr. Lowe was no longer representing Mr. Nagel. Despite her knowledge that Mr. Lowe no longer represented Mr. Nagel, the Respondent failed to provide Mr. Nagel with a copy of the proposed journal entry.
“9. On January 14, 2010, the Respondent provided a written response to the complaint. In her response letter, the Respondent admitted that she did not properly complete work on behalf of Ms. Highmoor. In that same letter, the Respondent expressed interest in participating in the attorney diversion program.
“10. Relying on Sup. Ct. R. 170, the Respondent provided the proposed journal entry to the court. However, the Respondent neither informed the court that Mr. Lowe no longer represented Mr. Nagel nor informed the court that he did not forward the proposed order to Mr. Nagel. On March 23, 2010, nearly two years after the hearing on the child support matter, the court signed the journal entry.
“11. On May 12, 2010, the Disciplinary Administrator forwarded the Notice of Hearing and the Formal Complaint to the Respondent at her last registered address. The Disciplinary Administrator sent the documents via regular mail and certified mail. The package sent via certified mail was returned to the Disciplinary Administrator’s office. The package that was sent via regular mail was not returned.
“12. On June 16, 2010, Mr. Morgan attempted to contact the Respondent. While he was unable to locate the Respondent, Mr. Morgan did speak with the Respondent’s adult son. The Respondent’s adult son indicated that the Respondent was aware of the disciplinary proceedings. Mr. Morgan provided the Respondent’s adult son with the certified mail package at that time.
“13. On June 17, 2010, the Respondent sent the Disciplinary Administrator’s office a letter by facsimile. The letter provided:
‘Please be advised that I am not available for personal or phone contact from your office. Please do not contact me or any of my family members by phone or by appearing at personal homes. At this point, I am unwilling to discuss any of my business with your office.
1 understand you will take whatever actions you find appropriate and I will do the same.’
“14. The Respondent failed to appear at the hearing on the Formal Complaint.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.3, KRPC 1.4, Kan. Sup. Ct. R. 207(b) and Kan. Sup. Ct. R. 211(b), as detailed below.
“2. The Respondent failed to appear at the hearing on the Formal Complaint. It is appropriate to proceed to hearing when a Respondent fails to appear only if proper service was obtained. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows:
‘(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney’s most recent registration, or at his or her last known office address.
‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’
In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the Notice of Hearing, via certified United States mail, postage prepaid, to the address shown on the Respondent’s most recent registration. Additionally, Mr. Morgan contacted the Respondent’s adult son and learned that the Respondent was aware of the scheduling hearing. After the certified mail package was returned to the Disciplinary Administrator, Mr. Morgan hand-delivered the certified mail pack to the Respondent’s adult son and the Respondent sent Exhibit 5 to the Disciplinary Administrator the next day. The Hearing Panel concludes that the Respondent was afforded the notice that the Kansas Supreme Court Rules require.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to diligently and promptly represent Ms. Highmoor by failing to timely prepare the journal entry memorializing the court’s order of child support. Because the Respondent failed to act with reasonable diligence and promptness in representing her client, the Hearing Panel concludes that the Respondent violated KRPC 1.3,
“4. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and prompdy comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when she failed to communicate with Ms. Highmoor regarding the status of her case. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“5. Lawyers must cooperate in disciplinary investigations. Kan. Sup. Ct. R. 207(b) provides:
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, 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.’
The Respondent’s refusal to cooperate with the Disciplinary Administrator’s office is a violation of Kan. Sup. Ct. R. 207(b). The Respondent’s violation of Kan. Sup. Ct. R. 207(b) is evidenced by her June 17, 2010, letter. Thus, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 207(b).
“6. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) requires:
‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’
The Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“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 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.
“Duty Violated. The Respondent violated her duty to her client to provide diligent representation and adequate communication. Additionally, the Respondent violated her duty to the legal profession to cooperate in disciplinary proceedings.
“Mental State. The Respondent knowingly violated her duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to Ms. Highmoor. Because of the Respondent’s lack of diligence, Ms. Highmoor did not have a current child support order to enforce for nearly two years.
“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 the following aggravating factors present:
“A Pattern of Misconduct. Despite Ms. Highmoor’s regular requests for information, the Respondent failed to take proper action to memorialize the court’s child support order. The Respondent’s continuous failure to complete Ms. High-moor’s representation amounts to a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4, KRPC 207(b), and KRPC 211(b). As such, the Hearing Panel concludes that the Respondent committed multiple offenses.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. On June 17, 2010, the Respondent sent a letter via facsimile indicating her unwillingness to cooperate in the disciplinary process. The Respondent’s open refusal to participate is an aggravating factor in this case.
“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:
“Absence of a Prior Disciplinary Record. The Respondent had not previously been disciplined.
“Absence of a Dishonest or Selfish Motive. It does not appear that the Respondent’s misconduct was motivated by dishonesty or selfishness.
“Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. According to the Respondent, she was experiencing personal problems which affected her ability to handle client matters in a timely fashion. Unfortunately, she did not appear to present evidence regarding her personal or emotional problems.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘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 injury or potential injury to a client.
‘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, the public, or the legal system.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be indefinitely suspended from the practice of law.
“The Hearing Panel is bound to formulate its recommendation based upon the clear and convincing evidence presented during the hearing. The written correspondence suggesting personal problems is insufficient to mitigate significantly the Respondent’s misconduct.
“Thus, 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 an indefinite period of time. If the Respondent applies for reinstatement to the practice of law, the Healing Panel recommends that the Respondent present evidence from a licensed mental health professional to establish the Respondent’s current fitness to practice law.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
The Disciplinary Administrator recommends that this court adopt the recommendation of the hearing panel that respondent be indefinitely suspended from the practice of law in this state. We note that the respondent did not provide an answer to the complaint, appear for hearing before this court, or offer an explanation for her absence, although a copy of the hearing notification was mailed to her in accordance with our rules. The notice was mailed, both by regular mail and by certified mail, on May 12, 2010, to respondent’s last address on file with the Clerk of the Appellate Courts. The certified mailing was returned to the Disciplinary Administrator’s office; the documents sent by regular mail were not returned. The certified mailing was later hand-delivered by an investigator of the office of the Disciplinary Administrator to respondent’s adult son, who told the investigator that the respondent was aware of the hearing. The respondent was properly notified of this proceeding, and this court has jurisdiction to proceed.
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 Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2010 Kan. Ct. R. Annot. 344). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). 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 adopt the panel’s findings and conclusions.
At die hearing before dis court, de Disciplinary Administrator asked de court to administer an indefinite suspension as recommended by the hearing panel.
Conclusion and Discipline
It Is Therefore Ordered that Mary Ivester, be indefinitely suspended from de practice of law in the state of Kansas, effective on de filing of dis opinion, in accordance wid Supreme Court Rule 203(a)(2) (2010 Kan. Ct. R. Annot. 276).
It Is Further Ordered dat de respondent shall comply wid Supreme Court Rule 218 (2010 Kan. Ct. R. Annot. 370), and, in de event respondent seeks reinstatement, she shall comply wid Supreme Court Rule 219 (2010 Kan. Ct. R. Annot. 370).
It Is Further Ordered dat the costs of these proceedings be assessed to respondent and dat dis opinion be published in de official Kansas Reports.
James A. Patton, District Judge, assigned. | [
-112,
-24,
-87,
-51,
-118,
97,
54,
40,
105,
-45,
117,
87,
-19,
-17,
24,
63,
-47,
41,
16,
107,
67,
-74,
127,
-64,
-26,
-5,
-15,
-43,
-78,
79,
-11,
-36,
73,
48,
-118,
-43,
6,
-118,
-111,
-112,
-114,
6,
9,
-16,
83,
-63,
48,
105,
-110,
15,
49,
-90,
51,
46,
52,
-61,
-84,
108,
-2,
-17,
-64,
-31,
-69,
21,
127,
22,
-79,
20,
20,
7,
-48,
63,
-120,
56,
33,
-23,
51,
-74,
-126,
116,
15,
-103,
-119,
102,
98,
35,
48,
-31,
-96,
-116,
47,
92,
-115,
39,
-103,
88,
11,
12,
-74,
-75,
117,
18,
39,
124,
100,
77,
61,
-28,
10,
-53,
-48,
-111,
31,
101,
-116,
26,
-17,
-124,
0,
85,
-117,
-26,
95,
-122,
59,
-101,
-86,
-94
] |
On October 29, 1999, this court suspended the petitioner, Michael R. McIntosh, n/k/a Atif Michael McIntosh Abdel-Khaliq, from the practice of law in Kansas for an indefinite period of time. See In re McIntosh, 268 Kan. 73, 75-76, 991 P.2d 403 (1999). Before reinstatement, the petitioner was required to pay the costs of the disciplinary action, comply with Supreme Court Rule 218 (2010 Kan. Ct. R. Annot. 370), and undergo a hearing pursuant to Supreme Court Rule 219 (2010 Kan. Ct. R. Annot. 370).
On June 16, 2009, McIntosh 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. On July 6, 2010, a hearing was held before a hearing panel of the Kansas Board for Discipline of Attorneys to consider McIntosh’s request for reinstatement.
On August 25, 2010, the panel filed its report setting out the circumstances leading to McIntosh’s suspension, a summary of the evidence presented, and its findings and recommendations. The panel unanimously recommended that McIntosh’s petition for reinstatement to the practice of law in Kansas be granted. The panel further recommended that McIntosh’s reinstatement be conditioned on the following items:
“a. Within 30 days of the date of this report, the Petitioner shall provide the Disciplinary Administrator with documentation from the Kansas Department of Revenue and the Internal Revenue Service establishing that the Petitioner does not continue to owe the taxing entities for taxes, interest, or penalties.
“b. The Petitioner [shall] work with the Disciplinary Administrator to locate an attorney that is mutually agreed upon by the Petitioner and the Disciplinary Administrator who is appropriate to supervise the Petitioner’s re-entry into the practice of law. The Petitioner shall work with this attorney for at least two years to set up and maintain the business side of his law practice. The attorney should assist the Petitioner in establishing an attorney trust account; assist the Petitioner in setting up a system to reconcile and maintain the attorney trust account; assist the Petitioner in understanding legal and ethical ways to finance and cash flow Petitioner’s practice; and ensure that all taxes are properly paid to the state and federal governments.
Dated this 22nd day of March, 2011.
“c. The Petitioner shall successfully complete at least 10 hours of education on law office management, to be approved by the Disciplinary Administrator, within 120 days of the date of this report.
“d. The Petitioner shall present documentary proof of CLE payments in full.”
The petitioner has satisfied the conditions recommended by the panel.
The court, after carefully considering the record, accepts the findings and recommendations of the panel that the petitioner be reinstated to the practice of law in Kansas.
It Is Therefore Ordered that McIntosh 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. Upon the report to the Clerk of the Appellate Courts that the petitioner 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 petitioner s name upon the roster of attorneys engaged in the practice of law in Kansas.
It Is Further Ordered that this order of reinstatement for McIntosh shall be published in the Kansas Reports and the costs of the reinstatement proceeding are assessed to the petitioner. | [
-112,
-5,
-58,
92,
8,
-64,
50,
-66,
89,
-45,
37,
115,
-17,
-38,
5,
123,
-47,
73,
64,
123,
78,
-73,
86,
-64,
68,
-69,
-40,
-33,
-71,
111,
-12,
-99,
72,
-80,
-54,
-43,
6,
73,
91,
-36,
-82,
6,
11,
-60,
81,
-63,
48,
97,
2,
15,
49,
95,
-93,
122,
29,
-62,
-52,
72,
31,
-20,
93,
-43,
-85,
-123,
111,
21,
-79,
5,
20,
-121,
120,
47,
-116,
25,
1,
-24,
115,
-106,
2,
80,
11,
-87,
41,
111,
98,
48,
1,
-27,
-72,
-72,
14,
-72,
-99,
-58,
-39,
89,
67,
-116,
-108,
-67,
124,
-106,
39,
124,
-28,
5,
27,
-20,
14,
-54,
-44,
-77,
-33,
53,
-118,
3,
-18,
3,
16,
69,
-100,
-105,
78,
67,
122,
-109,
-38,
-12
] |
The opinion of the court was delivered by
Nuss, J.:
Tyrone Leaper was convicted of second-degree murder for fatally shooting Christopher Lovitch and received a sentence of 620 months’ imprisonment. The Court of Appeals affirmed. We granted Leaper’s petition for review; our jurisdiction is under K.S.A. 20-3018(b).
Leaper’s issues on appeal, and our accompanying holdings, are as follows;
1. Did the district court err in denying Leaper’s motion for a mistrial? No.
2. Did the district court err in its procedures for the jury’s use of transcripts during its deliberations? Not preserved for review.
3. Did cumulative error deny Leaper a fair trial? No.
4. Did the district court improperly sentence Leaper to a higher sentence without submitting his criminal history score to the jury? No.
Accordingly, we affirm the decisions of the Court of Appeals and the district court.
Facts
On May 12, 2006, Tyrone Leaper left work and went to his sister’s apartment. Upon arriving, Leaper saw his brother, Roderick, sitting outside with his girlfriend’s brother, Christopher Lovitch. When Leaper attempted to enter the apartment, Lovitch ac cused him of being “in violation” and attacked him. They ended up on the porch of neighbor Georgetta Laster, where the fight was broken up.
After the fight, Leaper went into his sister s apartment to tend to his bleeding eye. Leaper testified that he called a friend named Crystal to pick him up, but Roderick later told police that he heard Leaper ask someone on the phone to “come through.” Leaper left the apartment, but once outside the door, Lovitch attacked him again.
Laster watched this second fight from her nearby apartment. She testified that at some point Leaper struck Lovitch with a wooden pole. After being hit, Lovitch regained his composure and threw Leaper against an exterior apartment wall. Laster then called 911. While on the phone, Laster heard a gunshot. Her mother, Nina Jensen, and her son, I.M.H., were inside her apartment and watched the second fight. Both testified that they saw Leaper shoot Lovitch from the top of a staircase overlooking the courtyard.
Leaper denied shooting Lovitch. He testified that he fell to the ground after Lovitch slammed him against the wall. While on the ground, Leaper heard someone say “get off my cousin” and realized that his cousin Travis was present. After hearing the gunshot, Leaper ran to a parking lot in the opposite direction from the staircase where Jensen and I.M.H. placed him. Leaper testified that his cousin Travis, and not Leaper, was at the top of the stairs when the shot was fired.
Leaper’s brother Roderick testified that during the first fight between Leaper and Lovitch, Travis had the pole and was “trying to jump in the fight.” Roderick also testified that during the second fight, Leaper was on the ground near Laster s apartment when Roderick went inside to call his girlfriend, Misty Murphy. Murphy is the mother of 3 of Roderick’s children and is also Lovitch’s sister. While on the phone, Roderick heard the gunshot. He admitted seeing cousin Travis at the apartment with a gun but denied seeing who actually fired the shot. According to Roderick, Lovitch walked into the apartment soon after the gunshot and started talking to him. Lovitch collapsed without identifying the shooter.
Murphy testified contrary to the testimony of her boyfriend, Roderick. According to Murphy, Roderick told her while they were on the phone that Leaper shot Lovitch.
Lovitch died from a single gunshot to his chest. Based upon the bullet entry wound, both the pathologist and crime scene investigator determined that the shot was fired from a higher level than Lovitch. Officer Bruce Cobbins testified that Lovitch was shot while inside the apartment screen door, looking up toward the hill. No gun or shell casing was ever recovered from the scene.
Although Roderick testified that Travis had a gun at the scene, he had not mentioned this detail when the police had earlier questioned him. To point out this discrepancy, the prosecutor handed him a copy of his transcribed police statement. When Roderick expressed difficulty in reading it, the State offered to play the audio tape of his interview. The judge excused the jury, and Roderick listened to his recorded interview.
When the jury returned, the State continued Roderick’s cross-examination and eventually offered the tape into evidence. The defense objected, and the judge took the matter under advisement. Following the testimony of Roderick and another witness and the jury’s departure for the day, the judge asked for the tape. However, the parties were unable to find it. During their search, they discussed whether Roderick had taken it from the courtroom, with the judge suggesting that Roderick “may have put it in his pocket.” The bailiff then entered the courtroom and the following colloquy occurred:
“Bailiff: Are you looking for the tape?
“Court: Yes.
“Bailiff: One of the jurors told me that Roderick took it.
“Court: Oh.
“Bailiff: Put it in his pocket.
“Court: Well, I will need to- -
“Bailiff: They said as he left, he grabbed it, put it in his pocket.”
When Roderick was brought back to the courtroom, he denied taking the tape. He encouraged and voluntarily submitted to a search of his person, but the tape was not found. The court concluded:
“Court: Well, I don’t — if he did [take it], he doesn’t have it now in any event and I could not tell you that he, in fact, took it even though one of the jurors may have thought he did. I don’t know. I don’t know. But that’s neither here nor there.”
The next morning, the defense filed a motion for a mistrial, claiming that a juror s observation of Roderick taking the tape prejudiced Leaper and that no instruction could cure the problem. The defense argued that if no mistrial was to be declared, then the court should poll the jury to determine if any other juror saw anything.
The motion stated in relevant part:
“6. That the tape was missing and the bailiff informed the court and the parties that one of the jurors told her that the witness had taken it and put it in his[] pocket when he left the witness stand.
“9. That the fact that the juror saw what happened prejudices the Defendant.
“10. The Defendant did not take the tape, but the jury may decide this testimony of the witness not based on what he said but what he did and there is no curative instruction that can be given.
“11. That the Court should grant a mistrial immediately or poll the jury to determine if any other juror saw anything.
“12. That [K.S.A.] 22-3423(l)(c) contemplates granting a mistrial when prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the Defendant or the prosecution.
“13. That this incident relates to the testimony of a witness who identified someone else at the scene engaged in hitting the victim and carrying a weapon and who testified that he never saw the Defendant with any weapon, gun or stick, and that the Defendant was badly beaten by the victim.”
At the hearing on the mistrial motion, Leaper emphasized that the jury had been told by the court that it was to decide the case on the evidence presented, i.e., not the actions of a witness leaving the stand. He asked that at a minimum, the court bring in the reporting juror to find out exactly what was seen and to determine whether other jurors had seen anything. The State responded that “it’s no different than the jury can judge a witness’ demeanor in determining their credibility.”
The judge denied the motion, explaining that the jury was to determine the credibility of witnesses. He acknowledged the “one known fact”: that one juror had informed the bailiff that the witness had taken the tape. But the judge opined that Leaper made many suppositions as to what the jury saw and heard. He further stated: “I can see no substantial criminal right of the defendant being interfered with by a witness’s behavior on the witness stand.” The judge concluded by noting that even if Roderick had taken the tape, it was common for witnesses to inadvertently take a piece of evidence off the stand, as police officers “have been known to do this exact same thing.”
The jury ultimately found Leaper guilty of second-degree murder. Leaper filed a motion for a new trial, raising several issues, including the issue involving the juror’s comments to the bailiff. He again emphasized that Roderick was the only exculpatory witness, and his important testimony could have been totally rejected by the jury solely because of his conduct that was unrelated to the issues of the trial. Leaper essentially argued that the court’s failure to take any action beyond hearing the arguments denied his right to a fair trial. The motion provided in relevant part:
“4. That the Court erred in fading to grant a mistrial when the jury [a juror] notified the bailiff that they saw a witness take an offered exhibit . . . with him when he left the witness stand. The Court failed to protect the Defendant’s right to a fair and impartial jury when it failed to bring in the juror who made the report and failed to communicate with any other jurors as to whether or not they had seen him take it as well. . . . The jury had already been excused but they may have seen what happened before they left the building. At least one saw him take it. . . . Defendant filed a written Motion for Mistrial based on the jury observing something not related to the trial which might impact on the Defendant’s right to a fair trial. . . . This witness was the only exculpatory ivitness that had testified to that point and the Defendant is concerned that the jury would decide whether or not to believe him not based on his testimony but on him taking an exhibit [from] the witness stand. . . . The proper procedure would have been to bring the juror or jurors in who saw him take the tape and have them answer if they could still be fair to the Defendant based on the conduct of his brotherf] in taking something from the court. The court told the Defendant that he was just speculating about whether it affected the jury and that is why the Defendant asked that the juror or jurors be brought in for questioning. The [juror] is the one who informed the Court that the witness had taken the exhibit.” (Emphasis added.)
The judge denied the motion for new trial, finding that no prejudice occurred that would have affected Leaper’s substantial criminal rights. On the tape issue, he held that “based upon the evidence against the defendant in this case, the eyewitness testimony, et cetera, I doubt if it [tire incident] had any effect whatsoever against the defendant.” The judge later sentenced Leaper to 620 months’ imprisonment.
The Court of Appeals affirmed Leaper’s conviction and sentence. Judge Malone concurred in the result but disagreed with the majority’s analysis of Leaper’s motion for a mistrial. State v. Leaper, 40 Kan. App. 2d 902, 196 P.3d 949 (2008). We granted Leaper’s petition for review.
More facts will be added as necessary to the analysis.
Analysis
Issue 1: The district court did not err in denying Leaper s motion for a mistrial.
Parties’ arguments
Leaper contends the district court judge erred in denying his motion for a mistrial. He claims that (1) the judge’s failure to investigate the extent to which the jury was aware of, and possibly considered, Roderick’s alleged taking of the tape, coupled with (2) the judge’s failure to instruct the jury to disregard the event, resulted in substantial prejudice to his rights. In short, he was denied his right to a trial by an impartial jury because the juiy may have improperly considered matters outside of the evidence admitted at trial.
The State responds that “[t]he conduct of a witness on the witness stand under oath is something for the jury to consider in order to determine the credibility of the witness.” The State further claims that Leaper never proved how this event would affect him and therefore his rights were not prejudiced.
Court of Appeals’ decision
The majority opinion for the panel appeared to analyze Leaper’s claim as possible juror misconduct. It concluded that no misconduct occurred because Roderick’s actions were capable of being observed by the entire jury, i.e., this was not the independent act of a single juror. See, e.g., Saucedo v. Winger, 252 Kan. 718, 850 P.2d 908 (1993) (one juror spoke with his daughter about the ability of the plaintiff s son to speak Spanish, which was an issue in the case). The majority denied that Roderick’s tape taking constituted extraneous or extrinsic evidence, holding that it was instead witness demeanor evidence appropriate for the jury’s consideration. See Black’s Law Dictionary 463, 596 (8th ed. 2004) (defining “demeanor evidence” as the “behavior and appearance of a witness on the witness stand”). It also concluded that Leaper failed to show how the juror’s observation would have affected the outcome of the trial because the evidence of Leaper’s guilt was overwhelming.
In Judge Malone’s concurrence, he concluded that the majority was wrong to analyze Leaper’s claim in terms of juror misconduct. Instead, the proper approach was to determine whether prejudicial conduct in the courtroom made it impossible for Leaper to receive a fair trial. He further concluded that Roderick’s alleged taking of the tape was not proper for the juiy’s consideration as a witness’ demeanor. Rather, it was extrinsic evidence and therefore improper. See Black’s Law Dictionary 597 (8th ed. 2004) (extrinsic evidence is that which is not legitimately before the court). According to Judge Malone, the district judge therefore should have instructed the juror to disregard this conduct. He opined the judge abused his discretion by failing to at least question the juror to discover what the juror knew, how the information affected the juror, and whether the juror shared this information with other jury members. Nevertheless, he concluded that given the amount of evidence against Leaper, these failures did not substantially prejudice Leaper’s right to a fair trial.
Standard of Review
The Kansas mistrial statute, K.S.A. 22-3423(1), states in relevant part:
“The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because:
“(c) prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.”
We have elaborated:
“As a general rule, a motion for a mistrial is reviewed under an abuse of discretion standard, and the party alleging the abuse bears the burden of proving that his or her substantial rights to a fair trial were prejudiced.” State v. Angelo, 287 Kan. 262, 283, Syl. ¶ 16, 197 P.3d 337 (2008) (citing State v. White, 284 Kan. 333, 161 P.3d 208 [2007]).
“ ‘It is necessary when justice so requires to declare a mistrial where there is some fundamental failure of the proceeding. When an event of prejudicial misconduct, the damaging effect of which cannot be removed by admonition and instruction, is presented to the jury,-the trial judge must declare a mistrial.’ ” Angelo, 287 Kan. at 283-84.
Discussion
The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to a fair and impartial jury trial. The failure to accord a defendant a fair trial by impartial and indifferent jurors “violates even the minimal standards of due process.” Morgan v. Illinois, 504 U.S. 719, 727, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992). The Supreme Court has explained that “[d]ue process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” Smith v. Phillips, 455 U.S. 209, 217, 71 L. Ed. 2d 78, 102 S. Ct. 940 (1982). We synthesized most of these principles in State v. Cady, 248 Kan. 743, 754, 811 P.2d 1130 (1991):
“[T]he right to a juiy trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. A juror’s verdict must be based upon the evidence developed at the trial of a criminal prosecution.”
See PIK Crim. 3d 51.04 (In fact finding, a juiy is only permitted to consider admissions or stipulations of parties and exhibits and testimony admitted into evidence.). Indeed, “[a] party is denied the right to a fair trial when a juror introduces evidence on material issues of fact to the jury during its deliberations.” Saucedo v. Winger, 252 Kan. at 733.
In the exercise of the juiy’s duty, however, it is permitted to determine die weight and credibility to be given to the testimony of each witness. PIK Crim. 3d 52.09. And the jury may consider extrinsic evidence concerning a witness’ conduct if introduced into evidence. See K.S.A. 60-420.
The panel’s majority found no jury misconduct, opining that Roderick’s action was part of his demeanor and therefore appropriate for the jury to consider. Judge Malone opined the action was not demonstrating demeanor because Roderick took the tape and put it in his pocket as he left the witness stand, not while he was on the stand. He emphasized the definition of demeanor evidence found in Black’s Law Dictionary: the “behavior and appearance of a witness on the witness stand.” (Emphasis added.) Accordingly, this piece of evidence was extrinsic.
We agree that the issue is not jury misconduct. More specifically, a juror saw something in the courtroom and thought it sufficiently unique to dutifully report it to the bailiff. But we disagree that the dispositive question is whether Roderick’s conduct occurred on or off of the witness stand. Rather, the question is whether Leaper was denied a fair trial by the conduct of Roderick and by the responsive action, or lack of such action, of the trial judge. The following cases are illustrative.
Numerous cases involve mistrial motions based upon a witness’ conduct before physically being on the stand. For example, in State v. Crawford, 672 So. 2d 197 (La. App. 1996), the prosecutor left the courtroom to retrieve the State’s first witness. He returned with the rape victim, who was crying. The trial judge immediately called for a recess. Defense counsel then moved for a new trial, i.e., mistrial, which was denied. The witness returned and was advised to maintain her composure. After the jury returned, she testified without crying. The court then instructed the jury that their judgment should not be influenced by the visible manifestations of physical upset exhibited by the victim or any other witness. On appeal, the court upheld the denial of motion for a new trial.
Other cases involve mistrials based upon a witness’ conduct, e.g.., “demeanor” while on the stand but before actually testifying. The case of Cooper v. State, 72 Tex. Crim. 645, 163 S.W. 424 (1914), involves witness conduct both before taking the stand and while on the stand but before actually testifying. When the seduction victim was called to testify, “she knelt in the presence of the jury and offered up . . . prayer.” 72 Tex. Crim. at 646. According to the appellate court, “the [trial] court did all in his power to remove the effect of this scene, recognizing, as we do, that it was highly improper. But after being cautioned, the young lady took her seat on the witness stand, and again uttered a prayer.” 72 Tex. Crim. at 646. “The court, as well as counsel, again remonstrated, and the court again instructed the jury not to consider this incident in their deliberations.” 72 Tex. Crim. at 646. Based upon the prayer episode and others, the case was reversed and remanded for a new trial.
Of a similar nature, but more recent vintage, is Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d 609 (1990), where the murder victim’s mother was called to testify:
“[She] spoke only Korean and testified through an interpreter. Before she began to testify, the interpreter informed the court that [she] wanted ‘to pray by herself just a few moments because she can’t say anything.’ No objection was made. [She] then stood and began an ‘emotional outburst’ in Korean, in a loud and angry tone of voice, turning her eyes to the defendant. Although neither the court nor the jury could understand her words, which were not translated or recorded, the court promptly instructed the jury that her words were not'in evidence and were ‘not be considered part of the case.’ The defense moved for a mistrial and the court denied the motion.” 240 Va. at 94.
This event, and others, combined to form defendant’s appellate argument that the mistrial should have been granted. The denial was upheld because the court had given prompt and appropriate curative instructions. 240 Va. at 95.
Other cases involve mistrial motions based upon a witness’ conduct, c.g., “demeanor” while actually testifying. The pure conduct case of State v. Burgess, 800 S.W.2d 743 (Mo. 1990), is on point. There, the 16-year-old victim was being cross-examined about the rape and sodomy committed by her step-father. She was handed a photograph of herself that she had given to him inscribed with her love. Without speaking, she then tore the photograph in half. The defendant had entered the photograph into evidence to support his claim that the victim cared for him. He argued she tore it to lead the jury to believe she did not care for him at all. Although no mistrial had been requested and the specific issue had not been raised in the motion for new trial, the Missouri Supreme Court entertained the mistrial issue on appeal. Rather than summarily rejecting the claim because the event was proper witness demeanor for the jury to consider, the Missouri Supreme Court proceeded to analyze the argument. It concluded the trial court had not abused its discretion in failing to declare a mistrial because no evidence showed that such a failure constituted manifest injustice.
Similarly, in Duncan v. State, 256 Ga. 391, 349 S.E.2d 699 (1986), the murder victim’s mother was being examined by the prosecution. The prosecutor asked if she could identify a picture of her son taken after he was stabbed. As she reached for the picture, she said, “ ‘Oh my God . . . Give me that.’ ” 256 Ga. at 392. After defendant moved for a mistrial, the judge removed the jury and told the mother if she did not control herself he would have to declare a mistrial. She replied that she would. When the jury returned, the judge instructed it to ignore the outburst. He also instructed on the presumption of innocence and the burden of proof in a criminal trial. The Georgia Supreme Court did not simply reject the mistrial claim because the event was proper witness demeanor for the jury to consider. Instead it held that the judge’s actions were appropriate and there was no abuse of discretion in denying defendant’s motion.
Other examples of witness stand conduct have included crying, unprovoked verbal outbursts, trembling and falling to the floor, and gasping aloud. See, e.g., State v. Worthen, 550 So. 2d 399 (La. App. 1989) (mistrial denied when rape victim on cross-examination made unprovoked verbal outburst and began crying; appellate court cited the strong admonition to the jury in affirming the conviction and the denial of mistrial motion); People v. Heflin, 40 Ill. App. 3d 635, 351 N.E.2d 594 (1976) (mistrial denied when father of murder victim cried on stand upon examining photo of son lying dead on basement floor; denial upheld on appeal); Miller v. State, 162 Ga. App. 730, 292 S.E.2d 102 (1982) (mistrial denied when rape victim on cross-examination began trembling and fell to the floor; appellate court cited timely corrective action in affirming conviction and denial of mistrial motion as within court’s discretion), rev’d on other grounds by Matthews v. State, 268 Ga. 798, 493 S.E.2d 136 (1997); State v. Oveross, 18 Or. App. 300, 525 P.2d 176 (1974) (67-year-old victim of an attempted murder was testi fying; when handed a close-up photograph of her in hospital, she gasped upon seeing her shaved head and sutured head wounds; motion for mistrial denied and upheld on appeal as no abuse of discretion).
In a similar vein, the eyewitness to fatal shootings was directed to leave the stand during her testimony and to identify a defendant by touching him in People v. Jean-Pierre, 169 A.D.2d 932, 564 N.Y.S.2d 831 (1991). She instead identified him with repeated blows, which produced “unusual and untoward reactions.” 169 A.D.2d at 933. Counsel for all defendants moved for a mistrial, which was denied. The appellate court affirmed, holding that the defendant failed to demonstrate how these actions deprived him of a fair trial.
Numerous cases involve mistrial motions based upon a witness’ conduct immediately after testifying. One vivid example is Berryhill v. State, 726 So. 2d 297 (Ala. Crim. App. 1998). There, the murder victim’s daughter, “after testifying and in full view of the juiy, allegedly walked behind [defendant], made a motion with her finger ‘like a gun,’ pointed her finger at [defendant’s] head, and mouthed the word ‘pow.’ ” 726 So. 2d at 303. Defendant moved for a mistrial, which was denied. The appellate court affirmed because of curative action taken by the trial court. More typical is King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989), where the rape victim collapsed in the courtroom after completing her testimony. The judge denied the defendant’s motion for mistrial. He admonished the juiy to render its verdict on the basis of the testimony and the instructions, to put aside prejudice and sympathy, and specifically directed the jurors not to consider the witness’ collapse in their deliberations. The appellate court affirmed, holding the admonition was as effective as words can be and that no prejudice had been demonstrated by defendant.
Based upon these cases and numerous others that they represent, we conclude that something more was present here than simply witness demeanor appropriate for the jury to consider — regardless of whether it happened on the stand, off the stand, or while leaving it. We most certainly reject the trial court’s general conclusion that “I can see no substantial criminal right of the de fendant being interfered with by a witness’s behavior on the witness stand.”
We also reject the position of the panel majority that there can be no abuse of judicial discretion for failing to investigate actions simply because they did not constitute juror misconduct. 40 Kan. App. 2d at 908-09. Instead, we agree with Judge Malone that once Leaper’s claim had been brought to the attention of the trial court, the judge had an obligation at least to inquire about what was known to that juror and how, if at all, the information affected the juror. See Smith v. Phillips, 455 U.S. at 217 (due process also means a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen); United States v. Williams, 809 F.2d 75, 85 (1st Cir. 1986) (“• When a non-frivolous suggestion is made that a jury may be biased or tainted, the district court must make an adequate inquiry into whether the alleged tainting incident occurred and whether it was prejudicial.’ ”).
The case of State v. Dixon, 289 Kan. 46, 209 P.3d 675 (2009), is of guidance. There, it came to the trial judge’s attention that a juror had seen or heard defendant in leg shackles and had told at least three other jurors about it. As a result, defendant requested a mistrial. The judge tiren questioned the juror directly, who stated he had heard the defendant coming into the courtroom with shackles and told three other jurors. The judge then asked the juror if the incident would “in any way affect the manner in which you have viewed this case” or “cause you to feel one way or another for or against [defendant’s] guilt or innocence.” The juror replied “no.” 289 Kan. at 53. Without following up with the three other jurors, the judge denied the mistrial motion. But the judge did give the following curative instruction to the entire jury without disclosing the specifics of what had been heard by one and thereby risking possible taint of the others:
“ ‘Members of the jury, late this morning it came to my attention that one or more of you may have had occasion to observe [Dixon] while coming or going from the courtroom and may have shared information regarding your observations [with] other jurors. I want to make clear to you that the manner in which [Dixon] arrives in the courtroom is not a matter that has any bearing whatsoever on this proceeding. It males no difference. You’re to draw no inferences from anything that you have seen or heard, and specifically I’m instructing you to disregard in these further proceedings any information with regard to the mode, mechanism of the transport or the appearance of [Dixon] here in any way. Simply put, it’s not appropriate to consider those things.’ ” 289 Kan. at 53.
In affirming the mistrial denial, we pointed out that the juror who heard the defendant in shackles denied that the experience would affect his impartial decision making. We concluded that “although it would have been reassuring for the district judge to have questioned the other jurors, it was not absolutely necessary here. The judge’s specific curative admonishment to the entire jury was an excellent alternative to ameliorate any ill effect from a relatively minor incident.” 289 Kan. at 62.
The “reassuring” approach referenced in Dixon was implemented by the trial court in Berryhill, 726 So. 2d 297. There, as mentioned, defendant moved for a mistrial after a witness completed her testimony, walked behind the defendant, made a motion with her finger like a gun, pointed the finger at his head and mouthed the word “pow.” The trial court genetically asked all the jurors whether they had seen a gesture. Seven jurors responded affirmatively. The other jurors were asked to leave, and the seven remaining were instructed that the incident was highly improper and they were to disregard it and not hold it against the defendant. These jurors were then polled individually to determine if they were able to disregard the incident. After the polling, the court instructed the seven to not discuss the incident with the other jurors. The court again polled the seven to determine if they would remove the incident from deliberations and not hold it against either side. Each responded affirmatively. The appellate court determined the trial court’s action cured any prejudicial error that may have occurred.
Here, the trial judge refused to inquire of the juror about the juror’s knowledge of Roderick’s tape taking and its possible impact on the juror. He also refused to inquire whether other jurors had knowledge of the incident and about the possible impact on them. We therefore agree with Leaper that while he has tibe burden of showing prejudice, and eventually abuse of judicial discretion in the denial of his mistrial motion, he is slowed in meeting his burden by the trial court’s refusal. And in the absence of a judicial admonition and instruction to any of the jurors, they may mistakenly believe that consideration of Roderick’s tape taking was appropriate. State v. Dixon, 289 Kan. at 55 (appellate review of denial of mistrial should consider whether limiting instruction was given); cf. Angelo, 287 Kan. 262 (mistrial declared only when an event of prejudicial misconduct and damaging effect cannot be removed by admonition and instruction). Moreover, when a juror feels strongly enough about a witness’ conduct to report it to the court bailiff, and tire judge apparently fails to even acknowledge the report, much less respond to it, the conduct may remain prominent in the juror’s mind and he or she may mistakenly place undue emphasis upon it. Leaper makes the valid point that because the juror reported the criminal act of theft — Roderick grabbed the tape and put it in his pocket — the possibility of its negative impact on the jury increases.
Nevertheless, all three judges of the panel agreed that the evidence of Leaper’s guilt was overwhelming, i.e., any trial judge error on the issue was harmless. Cf. State v. Dixon, 289 Kan. at 55 (appellate review of denial of mistrial should consider whether tire evidence improperly admitted would affect the outcome of the trial). More specifically, they point out that Leaper was engaged in a physical fight with Lovitch moments before Lovitch’s death; that two neighbors identified Leaper as the shooter; and that police found the neighbors’ statements — that Leaper shot Lovitch from the top of a staircase — were consistent with the physical evidence, i.e., the fatal shot was fired from a higher level than Lovitch.
Additionally, the majority concluded that Roderick’s taking of the tape would only have contributed to his already negative demeanor and weak credibility: He suggested at trial that Travis was the probable shooter but admitted he never told the police about Travis when they interviewed him on the day of the shooting.
We conclude that the trial judge abused his discretion by failing to investigate the alleged tape taking and by failing to provide die jury with an admonition to disregard. See State v. Dixon, 289 Kan. 46. However, we agree with the panel that the error was harmless, i.e, it did not affect the outcome of the trial. 289 Kan. 46.
In addition to the evidence cited by the panel, we observe that the defendant-identifying testimony of the two eyewitness neighbors is corroborated by a third independent witness. Roderick’s girlfriend and mother of three of his children, Misty Murphy, testified that she was on the phone with Roderick when she heard a gunshot. Roderick then told her that Leaper — his brother — “shot your brother.”
As for Roderick’s credibility with the juiy being damaged by his taking the tape, we agree with the panel’s opinion that his veracity was already weak. Despite his girlfriend’s testimony about Roderick’s contemporaneous identification of his brother as the shooter, Roderick told the jury, “I didn’t see no one shoot.” And despite his trial testimony that his cousin Travis (1) had a gun (2) at the murder scene, he failed to mention either critical fact to the police immediately after the fatal shooting for which his own brother was rapidly becoming the prime suspect.
Once in front of the jury, Roderick partially explained this particular, critical failure. Before his interview began he had told the detectives about Travis’ presence. However, he did not mention this fact during the later taping of the interview simply because the detectives failed to ask him. It is doubtful that trained homicide detectives would have failed to follow up regarding another eyewitness, especially a cousin to Roderick and Leaper. Moreover, Roderick did not explain why he had never told the police, before or during the taped interview, that Travis had a gun at the scene.
Additionally, while in front of the juiy, Roderick was unable to recall many of the details he had provided during the taped interview. After Roderick listened to the tape outside the jury’s presence to refresh his memory, the State questioned him upon the jury’s return. The record reveals he became argumentative and blamed the State, declaring that the prosecutor “want[ed] to twist stuff around” and “make me trying to change my story.” His impatience with the State was repeatedly shown. The trial judge, who is in a better position than an appellate court to gauge a witness’ demeanor and credibility, denied Leaper’s motion for mistrial par tially on this basis. He stated that it was “pretty obvious” from Leaper’s testimony that “when the State was asking him questions about what happened on the date in question, he repeatedly said he couldn’t remember. He didn’t want to talk about it. He was through[.] [A]nd then when you [defense counsel] were asking him questions, he could remember all sorts of facts and details that he apparently had not shared with the authorities.”
In later denying Leaper’s motion for new trial, the judge concluded, “Mr. Leaper was, in effect, a hostile witness. That was evident almost from him being sworn in.” Based on the judge’s view of Leaper and the remaining evidence, he stated, “I doubt if it [the tape incident] had any effect whatsoever against the defendant.”
As part of our analysis, we acknowledge Leaper’s argument that Roderick was the only exculpatory witness. As Leaper’s motion for mistrial made clear, Roderick was important because he was “a witness who identified someone else [Travis] at the scene engaged in hitting the victim and carrying a weapon” and was someone “who testified that he never saw the defendant with any weapon, gun or stick, and that the defendant was badly beaten by the victim.” And we must further acknowledge the possibility that Roderick’s important testimony could have been entirely rejected as incredible solely because of his tape-taking conduct on or near the witness stand. Nevertheless, as explained in detail above, Roderick’s credibility was independently weak before this conduct, and the evidence supporting Leaper’s conviction was strong. Consequently, we hold the error was harmless under all the circumstances of the case.
Issue 2: The district court did not err in its procedures for the jury’s use of transcripts.
Leaper next argues the district court erred in its procedures for the jury’s use of transcripts during its deliberations. The State responds that the Court of Appeals correctly determined that Leaper failed to preserve this argument for appellate review when he failed to object at the lower court. 40 Kan. App. 2d at 911 (citing State v. Kirtdoll, 281 Kan. 1138, 1148, 136 P.3d 417 [2006]); see also State v. Smith, 258 Kan. 321, 327, 904 P.2d 999 (1995) (defendant waives his or her right to challenge the district court’s response to a jury request by failing to make contemporaneous objection). Under this precedent and the record on appeal, we agree. Consequently, we see no reason to set forth the argument in detail or to further address it.
Issue 3: Cumulative error did not deny Leaper a fair trial.
Leaper next argues that cumulative error deprived him of a fair trial. The State responds that no error occurred; but if errors occurred, their accumulation was harmless.
We held in Issue 1 that the district court erred in its treatment of the episode involving Roderick’s alleged taking of the cassette tape but that the error was harmless because it did not affect the outcome of the trial. We have held that no other error occurred. Because the presence of one trial error is insufficient to accumulate, we hold that Leaper was not deprived of a fair trial. State v. Houston, 289 Kan. 252, Syl. ¶ 14, 213 P.3d 728 (2009).
Issue 4: The district court did not improperly sentence Leaper.
Finally, Leaper argues that the district court erred in sentencing him to a higher sentence based upon a criminal history not proved to a jury beyond a reasonable doubt in violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The State responds that the Court of Appeals properly rejected this argument based upon this court’s prior rejections of it. See, e.g., State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009); State v. Fewell, 286 Kan. 370, 393-96, 184 P.3d 903 (2008); State v. Storey, 286 Kan. 7, Syl. ¶ 4, 179 P.3d 1137 (2008). We agree. Consequendy, we see no reason to set. forth the argument in detail or to further address it.
Affirmed. | [
81,
106,
-35,
31,
57,
97,
42,
-68,
112,
-61,
98,
83,
109,
-21,
17,
43,
49,
121,
84,
121,
84,
-109,
39,
-31,
-14,
-13,
-109,
85,
-78,
109,
-18,
-98,
9,
114,
-118,
85,
70,
-54,
39,
-12,
-122,
-89,
-101,
70,
91,
66,
32,
56,
28,
-121,
53,
15,
-77,
41,
-100,
-22,
-56,
56,
91,
-67,
80,
-7,
-29,
-115,
-49,
18,
-126,
-93,
-98,
-90,
-38,
62,
29,
61,
0,
-24,
113,
-122,
-128,
116,
9,
-119,
44,
-90,
98,
17,
77,
-51,
106,
-119,
-83,
126,
-115,
39,
-103,
66,
65,
68,
-108,
-1,
124,
52,
46,
124,
111,
-36,
13,
-20,
-125,
-106,
-76,
-111,
-49,
32,
2,
-29,
-21,
-121,
64,
117,
-113,
42,
-36,
116,
121,
95,
-65,
-74
] |
The opinion of the court was delivered by
Rosen, J.:
Stacy Lee Kuxhausen seeks review of a decision of the Court of Appeals affirming the district court’s summary judgment order dismissing her personal injury action against Tillman Partners, L.P. See Kuxhausen v. Tillman Partners, 40 Kan. App. 2d 930, 197 P.3d 859 (2009). Kuxhausen contends that the district court (1) should have allowed expert testimony that she suffers from multiple-chemical sensitivity, a controversial diagnosis, as a result of Tillman Partners’ actions and (2) erred in concluding that she had no admissible expert testimony on causation and dismissing her action against the defendants. Because our decision on the second issue is dispositive of this appeal, we do not reach the first.
The Court of Appeals opinion sets forth the facts and its findings as follows:
‘When Stacy Kuxhausen reported for work at an accounting firm on a Monday morning in Manhattan, Kansas, she smelled paint and began to feel ill within minutes of entering the building. She said that her eyes burned, that she started to get a sore throat, and that she had to take deep breaths to get enough air. She later learned that epoxy-based paints had been applied in the basement of the building on the preceding Friday and Saturday. Kuxhausen came back to the building twice more over the next few days but stayed for only a few hours each time. She estimated that she spent a total of 8 hours in the building after it had been painted.
“Kuxhausen claims that she now has an ongoing sensitivity to a variety of chemicals she encounters in her daily life. She has sued the building owners, claiming that all of this is due to her exposure to paint fumes on either that Monday morning in 2004 or on the two later visits. She sought damages of about $2.5 million.
“In support of her claim, Kuxhausen presented a medical doctor’s testimony that she suffers from what that doctor and some others call multiple-chemical sensitivity. But most medical authorities say that multiple-chemical sensitivity is not a recognized diagnosis, and the district court ruled that the expert testimony Kuxhausen sought to present wasn’t sufficiently rehable to be admitted in a Kansas court. And without expert testimony, Kuxhausen has no claim because it’s certainly not self-evident to a layperson that a relatively brief exposure to paint fumes may lead to permanent sensitivity to a variety of chemicals.
“The district court’s ruling that expert testimony was needed for Kuxhausen to proceed with her claim was not appealed. So Kuxhausen’s claim rests upon the admissibility of her expert’s testimony. Specifically, we must determine whether evidence about multiple-chemical sensitivity is admissible under Kansas law and whether, aside from that specific diagnosis, the district court properly excluded the doctor’s testimony that Kuxhausen’s ongoing problems were caused by her exposure to epoxy-paint fumes. Because Kansas law does not allow for expert opinions drawn from scientific principles that have not earned general acceptance, the district court properly excluded expert testimony that Kuxhausen suffers from multiple-chemical sensitivity, a diagnosis that is not generally accepted. In addition, because Kansas law authorizes a district judge to exclude expert testimony that is based on unsupported assumptions or theoretical speculation, the district court properly excluded expert testimony that Kuxhausen’s ongoing problems with exposure to chemicals were caused by her brief exposure to epoxy-paint fumes.” Kuxhausen, 40 Kan. App. 2d at 931-32.
Kuxhausen proposed to present the testimony of three doctors in support of her claim. Chief among these was the testimony of Dr. Henry Kanarek. Dr. Kanarek went to medical school in Mexico City, then returned to the United States for a 3-year pediatric residency at Kansas University Medical Center, after which he completed a 2-year allergy fellowship at Children’s Mercy Hospital and Kansas University Medical Center in adult and pediatric allergy, asthma, and immunology. He has been in practice for 13 years, during which time he has diagnosed more than 100 patients with multiple-chemical sensitivity.
Dr. Kanarek saw Kuxhausen on October 10,2006. He conducted a physical examination of her, including an evaluation of her eyes, nose, pharynx, neck, heart, lungs, and skin. The physical examination took approximately 15 minutes. Overall, Dr. Kanarek spent approximately an hour with Kuxhausen. He also reviewed some additional reports and results of tests that had been performed on her by other doctors. His physical examination and all of the information he received from previous tests indicated no abnormalities. He reviewed a material safety data sheet (MSDS) for the paint used in the office building, but he had no information or data regarding what paint, chemical, or contaminant was actually in the air when Kuxhausen was in the office following the painting. He also had no information regarding whether the health concerns noted on the MSDS related to aerosolized paint or offgassing from the paint, no information indicating a level of exposure required to generate eye or skin irritation, and no information about the level of any particular chemical in the paint that would remain in the air for a particular duration. Based on the information he reviewed, his experience, and his observations of her, Dr. Kanarek diagnosed Kuxhausen with multiple-chemical sensitivity and concluded that her illness was due to her exposure to the epoxy paint.
Kuxhausen also proposed to present the testimony of two other doctors: Dr. Maurice Van Strickland, an allergist and immunologist, and Dr. Daniel Doombos, a clinical pulmonologist. Dr. Strickland saw Kuxhausen three times. He spent about an hour with her on the first visit and 15 minutes on each of the other visits. His x-ray of her sinuses and a pulmonary function test were normal. She also tested negative for a potential sensitivity to mold. Dr. Strickland ultimately concluded that Kuxhausen had multiple-chemical sensitivity, but he could not state with any certainty that her condition was due to her exposure to the epoxy paint. Dr. Doombos testified that, as a pulmonologist, not a toxicologist, he did not have the necessary experience to make a conclusion about exposure to epoxy paint and any adverse health effects. Thus, without the causation testimony of Dr. Kanarek, Kuxhausen’s case would fail.
The admissibility of expert testimony in Kansas courts is subject to K.S.A. 60-456(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 the witness.”
“An expert must have a factual basis for his or her opinions in order to separate them from mere speculation.” State v. Papen, 274 Kan. 149, 159, 50 P.3d 37 (2002).
“It is necessary that the facts upon which an expert relies for his or her opinion should afford a reasonably accurate basis for his or her conclusions as distinguished from mere guess or conjecture. Expert witnesses should confine their opinions to relevant matters which are certain or probable, not those which are merely possible.” State v. Struzik, 269 Kan. 95, Syl. ¶ 2, 5 P.3d 502 (2000).
See also Peatie v. Wal-Mart Stores, Inc., 112 Conn. App. 8, 21, 961 A.2d 1016 (2009) (“ ‘Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation. ... To be reasonably probable, a conclusion must be more likely than not.’ ”).
Since we approach the issues in the reverse order taken by both the district court and the Court of Appeals, we first consider the district court’s resolution of the issue which it characterized as “whether, separate from a diagnosis characterized as MCS, the Court should permit expert testimony that Plaintiff suffers from certain symptoms, conditions, or illness as a result of her exposure to epoxy paint fumes at her place of employment in Defendant’s building.” (Emphasis added.) The district court, citing K.S.A. 60-456(b), concluded that Dr. Kanarek’s opinion was insufficiently based in fact to supply the causation evidence, without which Kuxhausen’s case failed.
On appeal from a summary judgment, when there is no factual dispute, this court’s standard of review is de novo. Central Natural Resources v. Davis Operating Co., 288 Kan. 234, 240, 201 P.3d 680 (2009).
“ ‘Appellate review of a district court’s grant of summary judgment is governed by well-established rules. The burden on the party seeking summary judgment is a strict one. 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. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. A defendant is entitled to summary judgment if the defendant can establish the absence of evidence necessary to support an essential element of the plaintiffs case. [Citations omit ted.]’ ” Klose v. Wood Valley Racquet Club, Inc., 267 Kan. 164, 166-67, 975 P.2d 1218 (1999).
The district court’s summary judgment order in favor of Tillman Partners rested upon its evidentiary decision that Dr. Kanarek’s causation opinion would not be admissible at trial under K.S.A. 60-456(b) and, therefore, Kuxhausen could not establish an essential element of her case. The Court of Appeals correctly found that appellate review of the district court’s underlying evidentiary decision applying K.S.A. 60-456(b) is governed by an abuse of discretion standard and that “[w]e reverse for abuse of discretion on the admissibility of evidence only when no reasonable person would agree with the decision of the district court.” Kuxhausen, 40 Kan. App. 2d at 943-44; see also State v. Shadden, 290 Kan. 803, 818-19,235 P.3d 436 (2010) (Under multistep evidentiary analysis, third step, district court’s application of applicable rule or principle, standard of review varies depending on rule or principle applied. Application of K.S.A. 60-456 is reviewed under an abuse of discretion standard.).
The Court of Appeals found the district court erred in its conclusion that Dr. Kanarek had expressed no causation opinion at all.
“Dr. Kanarek admitted in his testimony that he had no information regarding the amount of chemicals Kuxhausen was exposed to. He similarly admitted that he had no information about the level of chemical exposure required to cause irritation for the chemicals found in this paint. However, Kuxhausen is correct in her argument on appeal that the district court went too far in its conclusion that Dr. Kanarek had not expressed a causation opinion at all. Magic words are not required, and Dr. Kanarek did state his opinion that Kuxhausen’s problems were caused by the paint-fume exposure.” Kuxhausen, 40 Kan. App. 2d at 944.
We agree that Dr. Kanarek did state an opinion that Kuxhausen’s symptoms were caused by the paint exposure. But we also agree with the Court of Appeals and the district court that the factual basis for that opinion was lacking.
Dr. Kanarek acknowledged that the precise mechanism by which exposure to chemicals causes multiple-chemical sensitivity is unknown and exposures of different levels affect different people differently. He also acknowledged that the diagnosis can be subject to abuse. He testified that he based his opinion on his examination of Kuxhausen, the other doctors’ prior objective examinations of her, and the MSDS sheet for the paint involved. He testified that he had been in practice for 13 years and had diagnosed 100 patients with multiple-chemical sensitivity. He also testified that he had considered whether Kuxhausen’s symptoms were psychogenic and had ruled out that explanation.
With regard to causation evidence, Kansas courts have long held:
“In order for circumstantial evidence to be sufficient to sustain a finding in a civil case, such evidence need not rise to that degree of certainty which will exclude any and every other reasonable conclusion. It suffices that such evidence affords a basis for a reasonable inference by the court or jury of the occurrence of the fact in issue, although some other inference equally reasonable might be drawn therefrom.” American Family Mut. Ins. Co. v. Grim, 201 Kan. 340, Syl. ¶ 1, 440 P.2d 621 (1968).
“In Kansas, an injured party’s right to recover is limited to when the injury is a direct and proximate result of a defendant’s negligence. Deal v. Bowman, 286 Kan. 853, 859, 188 P.3d 941 (2008). Proximate cause is cause ‘which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the injury would not have occurred, the injury being the natural and probable consequences of the wrongful act.’ Yount v. Deibert, 282 Kan. 619, 624-25, 147 P.3d 1065 (2006). To satisfy the plaintiff s burden of proof on the causation element, the plaintiff must produce evidence that ‘ “affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.” ’ 282 Kan. at 628 (quoting Prosser & Keeton on Torts § 41, pp. 269-70 [5th ed.1984]).” Rhoten v. Dickson, 290 Kan. 92, 114-15, 223 P.3d 786 (2010).
See also Hale v. Brown, 287 Kan. 320, Syl. ¶ 1,197 P.3d 428 (2008) (“In order to establish a claim based in negligence, a plaintiff must establish the existence of a duty, a breach of that duty, an injury, and proximate cause, which means a causal connection between the duty that was breached and the injury.”).
In this case, Dr. Kanarek’s opinion is ultimately based on nothing more than post hoc ergo propter hoc logic: the symptoms follow the exposure; therefore, they must be due to it. Such reasoning is nothing more than speculation. Dr. Kanarek’s examination of the plaintiff and the medical tests done on her revealed no abnormalities. He had no data concerning the level or amount of chemicals to which Kuxhausen was exposed or the mechanism of exposure. He testified only that there were materials listed on the MSDS that can make people sick and lead to health problems. He provided no supporting basis for concluding that those substances did make Kuxhausen sick in this case. This evidence affords no reasonable basis for the conclusion that Kuxhausen s symptoms more likely than not resulted from the defendant’s conduct. In other words, Dr. Kanarek’s causation opinion is totally lacking in a factual basis.
The standard of review of the district court’s evidentiary decision is abuse of discretion. We certainly cannot conclude that no reasonable person would reach the same conclusion as the trial court. In fact, we find the trial court’s decision sound and well reasoned. Based on our review of the evidence, we reach the same conclusion. Kuxhausen did not present a sufficient basis for the introduction of her expert’s opinion that her symptoms were caused by her exposure to the epoxy paint. This finding leaves her without causation testimony to support her claim; therefore, the trial court’s summary judgment in favor of Tillman Partners was appropriate and is affirmed.
Davis, C.J., not participating.
Glenn D. Schiffner, District Judge, assigned. | [
-48,
-22,
93,
-20,
8,
97,
48,
-56,
97,
-127,
-11,
115,
-17,
-56,
21,
41,
-46,
61,
97,
-29,
-45,
-77,
19,
-125,
-42,
-5,
98,
-45,
-72,
94,
116,
-34,
77,
112,
-53,
-99,
-58,
-118,
119,
88,
-116,
-123,
-88,
-22,
89,
-48,
52,
111,
-112,
67,
49,
-98,
-13,
44,
25,
-58,
72,
58,
107,
-67,
-48,
-15,
-117,
21,
109,
-106,
-93,
20,
-100,
-90,
-8,
42,
-46,
48,
-128,
-88,
113,
-74,
-58,
124,
75,
-69,
12,
34,
98,
33,
9,
-27,
104,
-88,
47,
125,
-67,
-91,
-101,
24,
27,
40,
-106,
-67,
116,
23,
7,
-8,
-18,
29,
30,
-20,
-114,
-121,
-106,
-79,
15,
49,
-104,
-85,
-26,
-113,
39,
113,
-55,
-88,
94,
-124,
115,
-33,
-54,
-76
] |
The opinion of the court was delivered by
Biles, J.:
Candy Starlene Daniel appeals her conviction of possession of methadone, which was found during a warrantíess search of her vehicle following her arrest for driving with a suspended license. The district court determined the search lawful under K.S.A. 22-2501(c), which at the time authorized certain searches incident to an arrest for the limited purpose of “discovering the fruits, instrumentalities, or evidence of a crime.”
A unique issue arises because K.S.A. 22-2501(c) was declared unconstitutional while Daniel was appealing her conviction based on the warrantless search of her vehicle. See State v. Henning, 289 Kan. 136, 148-49, 209 P.3d 711 (2009), which applied Arizona v. Gant, 556 U.S. 332, 173 L. Ed. 2d 485, 129 S. Ct. 1710 (2009) (vehicle search without warrant prohibited unless arrestee is within reaching distance of passenger compartment at time of search or there is reasonable belief the vehicle contains evidence of the crime of the arrest).
The State concedes that under Gant and Henning the search was illegal, so the usual rule would require exclusion of the illegally seized evidence. But the State asks us to salvage Daniel’s conviction by applying a good-faith exception to the exclusionary rule. The United States Supreme Court has recognized some good-faith exceptions when it was determined an officer acted in objectively reasonable reliance of certain circumstances outside of the officer’s control. See Herring v. United States, 555 U.S. 135, 143, 172 L. Ed. 2d 496, 129 S. Ct. 695 (2009) (officer relied on negligently maintained police records); Illinois v. Krull, 480 U.S. 340, 349-50, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987) (officer relied on statute); United States v. Leon, 468 U.S. 897, 922-23, 82 L. Ed. 2d 677, 104 S. Ct. 3405, reh. denied 468 U.S. 1250 (1984) (officer relied on facially valid warrant). To date, this court has applied a good-faith exception only when the officer relied on a warrant subsequently determined to be unsupported by probable cause. State v. Hoeck, 284 Kan. 441, 163 P.3d 252 (2007) (applying Leon). The State argues the officer who searched Daniel’s vehicle reasonably relied on both the facial validity of K.S.A. 22-2501(c) and then-existing case law authorizing the search.
This court has not previously considered whether to apply a good-faith exception to the exclusionary rule based upon an officer’s good faith reliance on a statute. Even when we struck down K.S.A. 22-2501(c) in Henning, we did not address whether a good-faith exception saved the illegally seized evidence from exclusion. We simply affirmed the district court’s suppression of that evidence. 289 Kan. at 148-49. Similarly, the United States Supreme Court in Gant did not address whether a good-faith exception was applicable when it affirmed suppression of the challenged evidence at issue in that case. See 173 L. Ed. 2d at 497-501. Daniel understandably argues that Gant and Henning support suppressing the evidence in her case, and that point carries with it a quantum of fairness, as well as support from some other jurisdictions. United States v. Gonzalez, 578 F.3d 1130, 1132 (9th Cir. 2009) (holding good-faith exception inapplicable when officers relied on circuit’s erroneous pre-Gani jurisprudence), reh. and reh. en banc denied 598 F.3d 1095, 1096 (9th Cir. 2010); United States v. Debruhl, 993 A.2d 571, 589 (D.C. Cir. 2010) (same); People v. McCarty, 229 P.3d 1041, 1045-46 (Colo. 2010) (same); Valesquez v. Corn., 2010 WL 567325, at *3 (Ky. App. 2010) (unpublished opinion) (same).
But our Court of Appeals has taken a different view and recently applied the good-faith exception under facts similar to this case. See State v. Karson, 44 Kan. App. 2d 306, 314, 235 P.3d 1260 (2010) (affirming conviction on drug charges based on evidence discovered during warrantless search of a parked truck after arresting the owner for outstanding traffic violations); State v. Carlton, No. 103,086, unpublished opinion filed July 9, 2010, pet. for rev. filed August 5, 2010 (pending) (reversing district court’s suppression of drugs and paraphernalia discovered in warrantless vehicle search incident to arrest for driving with suspended license). Many other jurisdictions also have followed this approach. See, e.g., United States v. McCane, 573 F.3d 1037, 1041-45 (10th Cir. 2009), cert. denied 176 L. Ed. 2d 759 (2010) (good-faith exception applies when officers relied on circuit’s then-prevailing pre-Gant jurisprudence); see also United States v. Davis, 598 F.3d 1259, 1264 (11th Cir. 2010) (same); United States v. Lopez, 655 F. Supp. 2d 720, 725 (E.D. Ky. 2009) (same); United States v. Gray, 2009 WL 4739740, at #4 (D. Neb. 2009) (unpublished opinion) (same); State v. Baker, 229 P.3d 650, 663-64 (Utah 2010) (same); State v. Dearborn, 786 N.W.2d 97, 107-10 (Wisc. 2010) (same).
As explained below, we hold prior precedent compels recognizing a good-faith exception when it can be determined the officer conducting the search incident to arrest was acting in objectively reasonable reliance on K.S.A. 22-2501(c). This exception is applicable for searches occurring before Gant was decided on Aprü 21, 2009. Accordingly, we affirm Daniel’s conviction.
Factual and Procedural Background
The facts are stipulated by the parties and not in dispute. Augusta Police Officer Matthew Meckel saw Daniel driving and knew her driver’s license was suspended. By the time Meckel pulled his patrol vehicle behind Daniel’s car, she had parked in a private driveway and was walking away. After confirming Daniel’s license was suspended during his initial contact with her, Meckel handcuffed Daniel and patted her down. Nothing illegal was found. Meckel placed her in the back of his. patrol car, where she was secured and monitored by a second officer who had subsequently arrived at the scene. Meckel then searched Daniel’s vehicle without her consent and found her purse.
Meckel testified he could not properly inspect the purse’s contents at the scene because of inclement weather, so he took the purse to the police station, where he discovered the drugs. The record does not reflect how much time elapsed between the arrest and the officer’s search of the purse, but it is fair to assume the passenger compartment search was much closer in time to Daniel’s arrest than the search of the purse at the police station.
The State charged Daniel with possession of methadone and driving with a suspended license. Prior to trial, Daniel filed a motion to suppress the methadone, claiming the search of her vehicle and purse violated the Fourth Amendment of the United States Constitution, §15 of the Kansas Constitution Bill of Rights, K.S.A. 22-2501, and K.S.A. 22-2509. See K.S.A. 22-3216(1) (“[A] defendant aggrieved by an unlawful search and seizure may move ... to suppress as evidence anything so obtained.”).
In response, the State conceded Meckel searched the vehicle and purse without a warrant simply because those searches were incident to Daniel’s arrest for driving with a suspended license. The State did not contend Daniel consented to the search of her vehicle and purse. Furthermore, the officer acknowledged he had no suspicion Daniel had committed any other crime and was not searching for evidence related to the arrest for driving with a suspended license. It also is understood from these facts that officer safety at the scene was not the purpose for the search.
Based upon testimony at the suppression hearing, the district court found that “the officer stated no suspicion as to discovering any fruits, instrumentalities, or evidence from the crime of driving while suspended, but the officer was making the search for pur poses of discovering the fruits, instrumentalities, or evidence of a crime.” (Emphasis added.) These findings conformed to the language in K.S.A. 22-2501(c). Daniel’s suppression motion was overruled. She asked the court to reconsider and that motion also was overruled.
In finding the challenged search of the vehicle’s interior and the purse inside fell within the parameters of K.S.A. 22-2501(c), the district court necessarily concluded that (a) the search occurred incident to an arrest in an “area within [Daniel’s] immediate presence,” i.e., it fell within the physical scope of the statute’s authorized vicinity of search; and (b) the search was conducted for one of the statutoiy purposes stated, i.e., “discovering the fruits, instrumentalities, or evidence of a crime.” K.S.A. 22-2501(c).The parties and the district court agreed to preserve the legal question concerning the search’s legality for this appeal.
Based upon these rulings, a trial was held on stipulated facts. Daniel was convicted of possession of methadone in violation of K.S.A. 65-4160 and driving while her license was suspended in violation of K.S.A. 8-262(a)(l). On the possession conviction, the court sentenced Daniel to 12 months’ probation, with a 13-month underlying prison term. Daniel filed a timely notice of appeal. Less than a year after her conviction and while her appeal was pending, Gant and Henning were decided. We have jurisdiction under K.S.A. 20-3018(c) (transfer on court’s own motion).
Analysis
Standard of Review
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 legal conclusion drawn from those factual findings by a de novo standard. This court does not reweigh evidence. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). In this case, the facts are not disputed, so we exercise unlimited de novo review of the district court’s legal conclusions.
Suppression as a remedy for illegally seized evidence
Our state and federal constitutions protect citizens from unlawful searches and seizures. Gant, 556 U.S. at 338; see State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009). Warrantless searches are considered unreasonable and invalid unless they fall within one of the recognized exceptions to the warrant requirement. Henning, 289 Kan. at 148; Thompson, 284 Kan. at 776. The State bears the burden to demonstrate a challenged search was lawful. Henning, 289 Kan. at 148; State v. Ibarra, 282 Kan. 530, 533, 147 P.3d 842 (2006). In this case, it is undisputed there was no warrant authorizing the search of Daniel’s car, and the State agrees the search was unlawful under Gant and Henning. The only remaining inquiry is whether the appropriate remedy is to suppress the evidence seized. This is a question of law.
Neither the Fourth Amendment nor § 15 of the Kansas Constitution Bill of Rights expressly prohibits the use of evidence obtained in violation of their respective protections. Instead a judicially created remedy exists to prevent the use of unconstitutionally obtained evidence in a criminal proceeding against the victim of the illegal search. Krull, 480 U.S. at 347; see Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, reh. denied 386 U.S. 871 (1961); Weeks v. United States, 232 U.S. 383, 58 L. Ed. 652, 34 S. Ct. 341 (1914); Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 640, 176 P.3d 938 (2008). This exclusionary rule operates to protect Fourth Amendment rights through deterrence, and it is not the defendant’s personal constitutional right. Leon, 468 U.S. at 906; United States v. Calandra, 414 U.S. 338, 348, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974); Martin, 285 Kan. at 640; State v. Turner, 257 Kan. 19, 21, 891 P.2d 317 (1995). In creating exceptions to the exclusionary rule, the United States Supreme Court in Krull explained the rule only applies when deterrence can be achieved:
“As with any remedial device, application of the exclusionary rule properly has been restricted to those situations in which its remedial purpose is effectively advanced. Thus, in various circumstances, the Court has examined whether the rule’s deterrent effect will be achieved, and has weighed the likelihood of such deterrence against the costs of withholding reliable information from the truthseeldng process. [Citations omitted.]” (Emphasis added.) 480 U.S. at 347.
As indicated in this quotation, questions regarding whether evidence should be excluded as a sanction for a Fourth Amendment violation should be answered by weighing the costs and benefits of preventing the prosecution’s use of the illegally obtained evidence. See Leon, 468 U.S. at 907. In Leon, the Supreme Court held the use of evidence that was unlawfully obtained was allowed if officers acted in reasonable reliance on a search warrant issued by a detached and neutral magistrate, even if it was determined later the magistrate erred and probable cause did not support the warrant. 468 U.S. at 913, 922-26. In so holding, the Supreme Court considered whether the deterrent effect that normally justified the exclusionary rule was lilcely to be realized under the particular factual circumstances found in the case. The Supreme Court concluded that “suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” 468 U.S. at 918.
The result in Leon was a determination that when a search occurred based upon a warrant, the exclusionary rule applied only if: (1) the magistrate was deliberately misled by false information when issuing the warrant; (2) the magistrate wholly abandoned the detached and neutral role required; (3) there was so little indicia of probable cause in the affidavit that it would be entirely unreasonable for an officer to believe the warrant was valid; or (4) the warrant so lacked specificity that officers could not determine the place to be searched or the items to be seized. 468 U.S. at 923.
This court has repeatedly accepted the underlying principle in Leon, i. e., that a good-faith exception to the exclusionary rule might be applicable if a search was conducted pursuant to a warrant that was later to be found lacking in probable cause, even though we have disagreed how to apply Leons stated criteria. See Hoeck, 284 Kan. at 455-65; State v. Longbine, 257 Kan. 713, 720-22, 896 P.2d 367 (1995), disapproved on other grounds State v. Hicks, 282 Kan. 599, 147 P.3d 1076 (2006); State v. Ratzlaff, 255 Kan. 738, 751-55, 877 P.2d 397 (1994); State v. Doile, 244 Kan. 493, 501-03, 769 P.2d 666 (1989), overruled on other grounds Horton v. California, 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301 (1990).
After Leon, the United States Supreme Court extended the good-faith exception to the exclusionary rule in other circumstances. See Herring, 555 U.S. at 147-48, (negligently maintained police records); Arizona v. Evans, 514 U.S. 1, 14-16, 131 L. Ed. 2d 34, 115 S. Ct. 1185 (1994) (inaccurate court records); Krull, 480 U.S. at 349-50 (statute). In each extension, the Supreme Court has continued to focus on whether the remedial purpose of the exclusionary rule would be fulfilled if the illegally obtained evidence was suppressed. Our court has not had occasion to consider these other exceptions.
A good-faith exception for objectively reasonable reliance on a statute
We interpret § 15 of the Kansas Constitution Bill of Rights to provide the same protection from unlawful government searches and seizures as the Fourth Amendment to the federal Constitution. Henning, 289 Kan. at 145; State v. Wood, 190 Kan. 778, 788, 378 P.2d 536 (1963). “[Rjegardless of whether the statute is challenged under the federal or state Constitution, we consider ourselves bound by United States Supreme Court precedent.” Henning, 289 Kan. at 145. In the past, this court has recognized that while it could extend state constitutional protections under § 15 of the Kansas Constitution Bill of Rights beyond the federal guarantees provided by the Fourth Amendment, it has declined to do so. Hoeck, 284 Kan. at 463; State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993).
As noted above, the United States Supreme Court has held the exclusionary rule may not apply to evidence obtained by police acting in objectively reasonable reliance upon a statute that was subsequently found to violate the Fourth Amendment. Krull, 480 U.S. at 349 (“The approach used in Leon is equally applicable to the present case.”). The Supreme Court reasoned that excluding evidence obtained when police are enforcing a statute that is later determined to be unconstitutional would not serve the rule’s purpose because it would have no deterrent effect on law enforcement. 480 U.S. at 349. The Krull Court explained:
“Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law. If the statute is subsequently declared unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment violations by an officer who has simply fulfilled his responsibility to enforce the statute as written. To paraphrase the Court’s comment in Leon-. ‘Penalizing the officer for the [legislature’s] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.’ [Citation omitted.]” 480 U.S. at 349-50.
Beyond looking to the deterrent effect on police, the Supreme Court also rejected an argument that applying the exclusionary rule in this context would deter legislators from enacting unconstitutional statutes. It said; “[W]e are not willing to assume now that there exists a significant problem of legislators who perform their legislative duties with indifference to the constitutionality of statutes they enact.” 480 U.S. at 352 n.8. The Supreme Court also noted legislators had not previously been the focus of the judicially created exclusionary rule, that legislators’ role in the criminal justice system was to enact laws for the purpose of establishing and perpetuating that system, and that legislators’ deliberations about statutes were “significantly different” from the judgments made by law enforcement in combating crime. 480 U.S. at 351. The Court then said:
“Before assuming office, state legislators are required to take an oath to support the Federal Constitution. [Citation omitted.] Indeed, by according laws a presumption of constitutional validity, courts presume that legislatures act in a constitutional manner. [Citations omitted.]” 480 U.S. at 351.
Despite these assumptions, the Supreme Court was not blind to the possibility that situations might arise in which an obviously unconstitutional statute could be enacted by a legislature yielding “to the temptation offered by the Court’s good-faith exception.” 480 U.S. at 366 (O’Connor, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting) (“Providing legislatures a grace period during which the police may freely perform unreasonable searches in order to convict those who might have otherwise escaped creates a positive incentive to promulgate unconstitutional laws.”). As a safeguard, the Krull majority required the good-faith exception to be dependent upon whether the officer could demonstrate “objectively reasonable reliance” on the statute at issue, explaining:
“A statute cannot support objectively reasonable reliance if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws. Nor can a law enforcement officer be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional. [Citation omitted.] As we emphasized in Leon, the standard of reasonableness we adopt is an objective one; the standard does not turn on the subjective good faith of individual officers. [Citation omitted.]” 480 U.S. at 355.
In applying these principles to the facts in Krull to determine whether the officer s reliance on the statute in question was objectively reasonable, the Court noted that prior case law had supported similar statutes, the statute appeared to be aimed at a legitimate state purpose, and the constitutional infirmity with the statute was not “sufficiently obvious as to render a police officer’s reliance upon the statute objectively unreasonable.” 480 U.S. at 358-59. Based on these findings, the Supreme Court determined the officer relied, in objective good faith, on a statute that appeared legitimately to allow a warrantless search. 480 U.S. at 360.
We find our case law tying the Kansas Constitution Bill of Rights, §15 provisions to United States Supreme Court precedent compels our recognition of the good-faith exception articulated in Krull. Hoeck, 284 Kan. at 463; Schultz, 252 Kan. at 824. Krull is a logical extension of Leon, which we have not hesitated to apply in Kansas in the context of search warrants issued by a magistrate. And while we recognize that Justice O’Connor’s concerns expressed in Krull are legitimate, the safeguards required by Krull for a court to examine whether law enforcement reliance on a particular statute was objective and reasonable under the circumstances militate against the possibility for legislative mischief that might seek to take unfair advantage of this exception.
So with the determination made to recognize the good-faith exception articulated in Krull, We next consider in this case whether the officer could objectively and reasonably rely on K.S.A. 22-2501(c) for his warrantless search of Daniel’s vehicle and purse.
Objective and Reasonable Reliance on KS.A. 22-2S01(c)
K.S.A. 22-2501 states:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of
“(a) Protecting the officer from attack;
“(b) Preventing the person from escaping; or
“(c) Discovering the fruits, instrumentalities, or evidence of a crime.”
As readily seen, the statute authorizes a search incident to arrest, but it expressly limits both the physical scope and purpose of that search. See State v. Conn, 278 Kan. 387, 391, 99 P.3d 1108 (2004); State v. Anderson, 259 Kan. 16, 22, 910 P.2d 180 (1996). The physical scope is specified to be the arrestee’s “immediate presence” and the limited purposes are set out in the subsections. Conforming to the Krull rationale, our task is to determine whether a law enforcement officer should have known K.S.A. 22-2501(c) was unconstitutional. See Krull, 480 U.S. at 355. That inquiry must focus on both the search’s scope and purpose as stated in the statute, while also considering the factual circumstances of the search itself.
In Daniel’s case, the challenged search began in the passenger compartment of a parked vehicle after Daniel was handcuffed and secured inside a patrol car. It ended when the officer searched Daniel’s purse after transporting it and Daniel to the police station. Officer safety and escape from custody do not justify the search, so subsections (a) and (b) are not to be considered. The officer admitted he was not looking for evidence to support the crime of the arrest (driving with a suspended license) and had no probable cause to believe any other crime had been committed. When the search occurred, Daniel already had been handcuffed and secured inside a patrol vehicle, so the passenger compartment was not within her reach.
As to the physical scope of Daniel’s search, we consider whether the officer could have objectively and reasonably believed K.S.A. 22-2501(c) was unconstitutional before he searched the passenger compartment when Daniel was no longer in her vehicle. Daniel does not argue the car and purse were outside Daniel’s immediate vicinity at the time of the search. Daniel argues only that the search’s scope was invalid based upon Gant’s holdings under the Fourth Amendment. This inquiry is premised solely on the constitutionality of tire statute. Compare State v. Davison, 41 Kan. App. 2d 140, 144-48, 202 P.3d 44 (2009), pet. for rev. filed March 2, 2009 (pending) (arguing once a defendant is handcuffed and secured within a patrol car, the defendant’s vehicle is no longer within the “immediate presence” limitation imposed by K.S.A. 22-2501). Our second inquiry is whether the officer could have objectively and reasonably believed the statute was clearly unconstitutional in authorizing a warrantless search incident to arrest for evidence of any crime. Finally, we will consider whether there is any indication the legislature wholly abandoned its responsibility to enact constitutional laws when it enacted K.S.A. 22-2501(c). See Krull, 480 U.S. at 355.
The answer to what the officer could objectively and reasonably believe about the Kansas statute from both the constitutional scope and purpose of his search is readily found in Gant. The Court’s decision details the lower courts’ interpretation (and ultimate misinterpretations) of Fourth Amendment jurisprudence regarding warrantless automobile searches incident to arrest since New York v. Belton, 453 U.S. 454, 460, 69 L. Ed. 2d 768, 101 S. Ct. 2860, reh. denied 453 U.S. 950 (1981). The Court observed: “[Ojur opinion [in Belton] has been widely understood to allow a vehicle search incident to arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” (Emphasis added.) Gant, 556 U.S. at 341. The Court’s opinion also collects numerous lower court decisions upholding wide ranging warrantless police searches of vehicles incident to arrest, including those that upheld searches even when the handcuffed arrestee had left the scene. See 556 U.S. at 342 & n.2-3. Indeed, it was this broad application of Belton by a predominate number of lower courts that was the catalyst for the Court to consider Gant.
After Belton, in Thornton v. United States, 541 U.S. 615, 158 L. Ed. 2d 905, 124 S. Ct. 2127 (2004), a majority of the Court held that Belton allowed a warrantless search of a person’s car, even when the officer did not make contact until the person arrested had left the vehicle. In doing so, the Court found a
“need for a clear rule, readily understood by police officers and not depending on differing estimates of what items were or were not within reach of an arrestee at any particular moment, justifies the sort of generalization which Belton enunciated. Once an officer determines that there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment.” (Emphasis added.) 541 U.S. at 623.
In concurring in part in Thornton, Justice O’Connor observed that since Belton: “[L]ower court decisions seem now to treat the ability to search a vehicle incident to arrest of a recent occupant as a police entitlement rather than as an exception ....” (Emphasis added.) Thornton, 541 U.S. at 624. Justice Scalia similarly noted: “Reported cases involving this precise factual scenario — a motorist handcuffed and secured in the back of a squad car — are legion. [Citations omitted.] Some courts uphold such searches even when the squad car carrying the handcuffed arrestee has already left the scene. [Citation omitted.]” 541 U.S. at 628 (Scalia, J., joined by Ginsburg, J., concurring in judgment).
The United States Court of Appeals for the Tenth Circuit, which is the federal circuit court with jurisdiction to hear Fourth Amendment controversies arising from Kansas, recently conceded that it too had frequently interpreted Belton “far beyond the underlying justifications” for warrantless vehicle searches incident to arrest, even if there was no possibility the arrestee could gain access to the vehicle at the time of the search. See United States v. McCane, 573 F.3d 1037, 1041-42 (10th Cir. 2009) (“The [warrantless vehicle] search in this case was wholly consistent with and supported by this court’s precedent prior to Gant.”)-, United States v. Humphrey, 208 F.3d 1190, 1201-02 (10th Cir. 2000); United States v. Cotton, 751 F.2d 1146, 1148-50 (10th Cir. 1985); United States v. Murphy, 221 Fed. Appx. 715 (10th Cir. 2007) (unpublished opinion).
Prior to Gant, our court had not had occasion to consider and approve a factual scenario similar to Daniel’s search, but we had addressed Belton and its application in rather broad terms. In State v. McClain, 258 Kan. 176, 183, 899 P.2d 993 (1995), we described Belton as creating a “bright-line rule” that when a policeman has made a lawful custodial arrest, the officer may “as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” We went on to explain that the search could include examining the contents of any containers found within the passenger compartment. This court added: “Since its filing in 1981, Kansas courts have consistently applied Belton to allow an officer to search the passenger compartment of an automobile when its occupant is arrested.” McClain, 258 Kan. at 184; see State v. White, 230 Kan 679, 680, 640 P.2d 1231 (1982); State v. Press, 9 Kan. App. 2d 589, Syl. ¶ 3, 685 P.2d 887, rev. denied 236 Kan. 877 (1987).
Against this backdrop from the case law precedent, we add a decision from our Court of Appeals released approximately 6 weeks before Daniel’s arrest. In State v. Henning, 38 Kan. App. 2d 706, 722-23, 171 P.3d. 660 (2007), revd 289 Kan. 136, 209 P.3d 711 (2009), that court said: “We hold that when the Kansas Legislature amended [K.S.A.] 22-2501(c), it adopted a constitutional statute which expanded the scope of the permissible purpose of a search incident to a lawful arrest in Kansas consistent with Belton.” (Emphasis added.) Granted, this court later reversed the Court of Appeals in light of Gant, see 289 Kan. at 147-49, but that does not matter because we are concerned only with the officer’s objectively reasonable reliance on the statute’s constitutionality at the time the officer acted. We find that a Court of Appeals decision only 6 weeks earlier upholding the constitutionality of the very statute the officer was acting under in searching Daniel’s vehicle and purse is a strong indicator of the officer’s objectively reasonable reliance on that statute. Coupled with the predominate federal and state case law noted above that preceded the Court of Appeal’s decision, a belief that the statute was valid was objectively reasonable.
Finally, we consider the available legislative history of K.S.A. 22-2501(c) to determine whether there is any suggestion the legislature “wholly abandoned its responsibility to enact constitutional laws” in its passage of the statute. See Krull, 480 U.S. at 355. In this endeavor, we are aided by two thorough reviews of the legislative history behind this provision made by this court and the Court of Appeals. See Henning, 289 Kan. at 142-45; Henning, 38 Kan. App. 2d at 714-16.
It is not necessary to burden this opinion with the same detailed recitation of the statute’s legislative deliberations and history that is contained in those two opinions. It is sufficient to simply state that neither opinion expresses any suspicion that the debate over the statute’s provisions reflected an abandonment of the legislature’s responsibility to enact constitutional laws. In fact, the Court of Appeals specifically found based on its review of this history that the legislature’s intent in passing the statute was to allow searches incident to arrest to extend to any crime “as constitutionally allowed” by Belton. See Henning, 38 Kan. App. 2d 706, Syl.
Following the precedent set by Krull, we find that at the time of the search of Daniel’s vehicle and purse that a reasonable officer would not have known that K.S.A. 22-2501(c) was unconstitutional. The officer’s objectively reasonable rehance on K.S.A. 22-2501(c) is demonstrated by (a) the substantial case law precedent across the country upholding similar searches, which lends added facial vahdity to the statute; (b) an appellate court decision directly on point that was vahd at the time of Daniel’s search; and (c) the statute’s legislative history. For these reasons, we affirm the district court’s denial of Daniel’s motions to suppress.
Affirmed.
Davis, C.J., not participating. | [
-79,
-20,
-3,
60,
27,
-32,
3,
26,
81,
-81,
-20,
83,
45,
-62,
4,
59,
-2,
63,
117,
123,
-45,
-73,
6,
-128,
38,
-13,
-103,
84,
-71,
73,
110,
-4,
12,
-80,
-118,
-107,
102,
89,
-73,
82,
-118,
7,
-80,
67,
88,
82,
40,
43,
2,
15,
113,
-97,
-29,
12,
26,
-61,
-23,
8,
75,
44,
121,
-48,
-103,
31,
-49,
2,
-77,
52,
-76,
-91,
-8,
56,
28,
24,
1,
-8,
115,
-92,
-110,
116,
107,
-101,
-128,
102,
98,
-111,
60,
-19,
-68,
-116,
62,
47,
31,
38,
-104,
72,
97,
-32,
-106,
-67,
108,
22,
45,
-24,
99,
69,
95,
108,
13,
-50,
-80,
-79,
11,
113,
-106,
99,
-49,
1,
50,
113,
-60,
-32,
92,
116,
81,
-109,
-50,
-42
] |
On January 30, 2009, this court suspended the petitioner, J. Gregory Swanson, from the practice of law in Kansas for a period of 2 years. See In re Swanson, 288 Kan. 185, 200 P.3d 1205 (2009). Before reinstatement, the petitioner was required to pay the costs of the disciplinary action and furnish proof of compliance with Supreme Court Rule 218 (2010 Kan. Ct. R. Annot. 370).
The Disciplinary Administrator has filed a report verifying that the petitioner has fully complied with the conditions imposed upon him by this court.
This court, having reviewed the files and recommendation of the office of Disciplinary Administrator, finds that the petitioner should be reinstated to the practice of law in Kansas.
It Is Therefore Ordered that J. Gregory Swanson 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. Upon proof provided to the Clerk of the Appellate Courts that the petitioner 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 petitioner’s name upon the roster of attorneys engaged in the practice of law in Kansas.
It Is Further Ordered that this order of reinstatement for J. Gregory Swanson shall be published in the Kansas Reports and the costs of the reinstatement proceeding are assessed to the petitioner. | [
-44,
-22,
-42,
94,
11,
32,
-78,
-122,
81,
-101,
39,
83,
-23,
-38,
4,
123,
-62,
109,
81,
121,
-43,
-74,
115,
-64,
118,
-5,
-39,
-57,
-72,
111,
-28,
-3,
76,
-80,
10,
21,
-58,
-53,
-47,
92,
-114,
7,
26,
-15,
81,
-61,
-78,
-23,
18,
-117,
49,
-114,
-85,
42,
61,
-63,
40,
42,
59,
-83,
-43,
-111,
-119,
5,
111,
85,
-127,
5,
30,
-121,
92,
63,
-116,
56,
0,
-23,
-13,
18,
-62,
-16,
75,
-7,
-95,
102,
98,
33,
9,
-116,
-68,
-36,
30,
-110,
29,
-25,
-103,
16,
99,
-123,
-108,
-67,
84,
20,
39,
124,
-92,
-124,
31,
-20,
10,
-50,
-44,
-77,
-33,
117,
-50,
26,
-17,
-31,
48,
69,
-106,
-73,
94,
-25,
122,
-101,
-118,
-75
] |
The opinion of the court was delivered by
Beier, J.:
Defendant Kristi Marie Urban petitioned this court for review of a Court of Appeals decision reversing a district court dismissal of this aggravated escape prosecution. Urban argues that the appellate panel should have followed the K.S.A. 21-3809(b)(l) interpretation in State v. Hampton, No. 91,092, a different panel’s earlier unpublished opinion. The State’s principal argument is that an unpublished opinion should not be treated as controlling precedent.
Factual and Procedural Background
Urban was charged in Case No. 06CR2179 with several counts of drug possession and driving while suspended. Pending trial or plea, the district judge granted her a personal recognizance (PR) bond on the condition that she reside at the Johnson County Residential Center (Center). The judge specifically imposed the residential condition on the PR bond after Urban twice failed to appear as ordered in the case. Urban posted bond on December 28,2006, and was transferred to the Center. Thereafter, Urban reached a plea agreement with the State; the parties agree she entered her guilty plea on January 2, 2007, and her sentencing was set for Februaiy 28, 2007.
Before that date arrived, on February 16, 2007, Urban left the Center on a temporary pass and failed to return, remaining missing until March 26, 2007. As a result, she again failed to appear as ordered in Case No. 06CR217. The State brought this case on February 23, 2007, charging Urban with aggravated escape from custody under K.S.A. 21-3810.
Urban was sentenced on Case No. 06CR2179 on April 19, 2007. She received 18 months’ probation at the Center, with an underlying prison term of 15 months. She received jail credit for her time already spent at the Center, less the time she had been missing.
Urban moved to dismiss the aggravated escape charge on the theory that she was not in custody, as that term is defined in K.S.A. 21-3809(b)(l), at the time she left the Center on her temporary pass. She argued that her restraint at. the Center was incidental to her release on bond in Case No. 06CR2179, and that release on bond was excluded from the statutory definition of custody.
The district judge granted Urban s motion. He noted that, at the time of Urban’s plea, the court could have revoked Urban’s preplea conditional bond and placed her at the Center to await sentencing. It did not. Consequently, he agreed with Urban that she had not been in custody within the contemplation of K.S.A. 21-3809(b)(1) when she left the Center on her temporary pass.
The Court of Appeals panel rejected this position. State v. Urban, 40 Kan. App. 2d 517, 193 P.3d 515 (2008). We granted review under K.S.A. 20-3018(b).
Analysis
A. Standard of Review
Interpretation of a statute raises a question of law over which this court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). The most fundamental rule is that the intent of the legislature governs if that intent can be ascertained. Arnett, 290 Kan. at 47. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Raschke, 289 Kan. 911, 914, 219 P.3d 481 (2009). 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. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute’s language or text is unclear or ambiguous does the court use canons of construction or legislative history or other background considerations to construe the legislature’s intent. State v. Trautloff, 289 Kan. 793, 796, 217 P.3d 15 (2009). This court cannot delete vital provisions or supply vital omissions in a statute. No matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one that the legislature alone can correct. See State v. Johnson, 289 Kan. 870, 879, 218 P.3d 46 (2009).
B. Statute at Issue
The controlling statute is K.S.A. 21-3809(b)(l), which contains pertinent descriptions of what “custody” is and what it is not, when that term is used to define the crimes of escape, aggravated escape, and aiding escape. The statute, in the form it existed when Urban was charged through today, provides:
“ ‘Custody means . . . detention in a facility for holding persons charged with or convicted of crimes . . .; detention in . . . [another] facility pursuant to court order, imposed as a specific condition of probation or parole or imposed as a specific condition of assignment to a community correctional services program .... ‘Custody does not include general supervision of a person on probation or parole or constraint incidental to release on bail.”
C. The Court of Appeals Decision in this Case
After reviewing the statutory language, the Court of Appeals panel held that Urban’s circumstances fit two of the three scenarios described in the first sentence quoted above: She was in detention in a facility for holding persons convicted of crimes, and she was in detention in a facility pursuant to court order imposed as a specific condition of assignment to a community correctional services program. In contrast, in the panel’s view, Urban’s situation did not fit either of the scenarios described in the second sentence of K.S.A. 21-3809(b)(l): Her detention was not general supervision of a person on probation or parole, and it was not a constraint incidental to release on bail. Urban, 40 Kan. App. 2d at 521-23. Thus Urban was in “custody” for purposes of the aggravated escape charge.
The Court of Appeals panel in this case relied in part on our 1984 decision in State v. Garrett, 235 Kan. 768, 684 P.2d 413 (1984). Defendant David D. Garrett had been convicted of forgery and was initially given a 3-year suspended sentence. When he failed to comply with the terms of his suspended sentence, the district court at first set aside the sentence and committed him to 1 to 10 years’ imprisonment. Upon a defense motion to modify, the judge placed Garrett on probation for 3 years, on the condition that he reside at a community corrections facility. Garrett failed to return as scheduled when permitted to leave the facility, and the State charged him with escape.
At the time Garrett was charged with escape, the first sentence of K.S.A. 21-3809(b)(l) was similar but not identical to its current form. The statute then provided that “ ‘[cjustody means . . . detention in a facility for holding persons charged with or convicted of crimes, . . . detention in . . . [another] facility pursuant to court order or imposed as a specific condition of probation or parole . . . .” (Emphasis added.) Garrett, 235 Kan. at 771 (quoting K.S.A. 1983 Supp. 21-3809[b][l]; see also L. 1986, ch. 123, sec. 1 (showing timing, content of statutory amendment). Under the plain language of this earlier version of the statute, and particularly the disjunctive “or” emphasized above, the definition of “custody” was met if a defendant had been detained pursuant to a court order of any kind. It was not necessary, as it was when Urban was charged with aggravated escape, and as it is now, that a court order be “imposed as a specific condition of probation or parole or imposed as a specific condition of assignment to a community correctional services program.” See K.S.A. 21-3809(b)(l).
In the Garrett decision, the first legal issue we addressed was whether Garrett’s residence in the community corrections center qualified under one or more of the scenarios set out in the first sentence of K.S.A. 1983 Supp. 21-3809(b)(l). We held that Garrett was in custody because “[h]e was being detained in a facility for holding persons convicted of crimes and was also being detained in a facility pursuant to court order.” Garrett, 235 Kan. at 774. We did not address whether either of the exceptions to “custody” in the second sentence of K.S.A. 1983 Supp. 21-3809(b)(l) applied, an issue apparently not raised. See Garrett, 235 Kan. at 774-76.
The Court of Appeals panel in this case concluded that Urban— who, like Garrett, had already been convicted but, unlike Garrett, had not been sentenced when she left community corrections— was covered two ways by the first sentence of K.S.A. 21-3809(b)(l): She was detained in a facility for persons convicted of crimes, and she was detained in a facility pursuant to court order imposed as a specific condition of assignment to a community correctional services program. Urban, 40 Kan. App. 2d at 518-19. Because of the amendment to the statute between the time Garrett was decided and the time Urban was charged, Garrett supports the former holding but not the latter. We therefore hold, when only the first sentence of K.S.A. 21-3809(b)(l) is considered, Urban’s situation qualifies for the label of custody because she was in “detention in a facility for holding persons . . . convicted of crimes.”
The Court of Appeals panel in this case correctly discerned that our analysis must now move to the second sentence of K.S.A. 21-3809(b)(1). See Urban, 40 Kan. App. 2d at 520. Its two exceptions to the definition of custody in the first sentence have been identical since 1982. Compare L. 1982, ch. 134, sec. 1 with K.S.A. 21-3809(b)(1). And the clear import of the two sentences, when read together, is that applicability of one or both of the exceptions in the second sentence trumps applicability of one or more of the custody scenarios outlined in the first sentence.
The first exception is easily disposed of. It would apply only if Urban were under general supervision on probation or parole. As she had only been convicted and not sentenced, neither probation nor parole were yet in play.
The second exception is the sticking point. Urban asserts that this exception for persons subject to “constraint incidental to release on bail” applies to her because her residence at the Center was a condition of her PR bond, instituted pending trial or plea and never revoked or adjusted at her plea hearing or otherwise. We do not have a transcript of the plea hearing in Case No. 06CR2179 in the record on appeal in this case, but the State has not disputed the district judge’s mention that Urban’s bond was not revoked or, apparently, otherwise explicitly changed when she pleaded guilty in the drug case.
The Court of Appeals panel rested its conclusion that the second exception did not apply to Urban on several grounds. It invoked two canons of statutory construction, ejusdem generis and noscitur a sociis, to say that the two exceptions should be “interpreted” to make them equivalent in their relatively low impact on a defendant. It also read the phrase “incidental to” to mean that any constraint referred to in the second exception be minor, i.e., less restrictive than the residence at the community corrections Center here. The panel noted that Urban had received jail credit for her time at the Center, less the time she was missing. It also characterized exclusion of any condition placed on bail or bond from the definition of custody in the first sentence of K.S.A. 21-3809(b)(l) as an unreasonable “interpretation” of the statute. Urban, 40 Kan. App. 2d at 520-22.
We depart from the panel on its first ground because it requires us to exceed our role when faced with a statute whose language is clear and unambiguous. As we have often stated, it is not the place of a court to look beyond such language for evidence of legislative intent. When a statute is plain, the court should not speculate as to the legislative intent behind it and should not read into the statute something not readily found in it. In this case, there was no need here to go beyond statutoiy interpretation to statutory construction, employing canons, or searching for clues in legislative history or other background considerations. The legislature’s intent in choosing the words it used in the second exception in the second sentence of the statute is manifest. “Constraint” is a broad term; it may be more intrusive than detention or less. Bail has a specific meaning, but it includes a PR bond such as that posted by Urban. The “release” in the phrase “release on bail” is release from jail; required residence in a community corrections facility may not be total freedom, but it is still not jail.
We also disagree with the panel’s second ground, the gloss it gives the phrase “incidental to.” Although it is true that “incidental to” has developed a modem usage subtly differentiated from “incident to,” both phrases imply that the preceding concept is subordinate in some way to the succeeding concept. Compare Gamer, Garner’s Modern American Usage 439 (2d ed. 2003) with Black’s Law Dictionary 777 (8th ed. 2004). The legislature’s employment of “incidental” rather than “incident” does not necessarily trivialize “constraint” in a cosmic sense. It does not make “constraint” irrelevant, as “spectacle” does to “shopping” in Gamer’s exemplary sentence: “Inside a Niketown or REI store in Seattle, shopping seems incidental to the spectacle . . . .” Gamer’s at 439 (quoting Kugiya, What’s in Store? Seattle Times, October 19, 1997, at 16). Rather, it precisely conveys, just as “incident to” conveys, the re lationship between “constraint” and “release on bail.” The relationship is dependence; the constraint arises out of the bail context.
Third, we are unpersuaded that there is anything unreasonable about an interpretation of the statutory language that malees every constraint incidental to release on bail ineligible for the label of “custody” under K.S.A. 21-3809(b)(l). This was the legislature’s policy choice to make, and it made it. It is not so farfetched that we must recoil or dam its socks. The exception to custody for “constraint incidental to release on bail,” in fact, is consistent with the overall legislative design that makes walking away from a community corrections facility while on bond a separate offense. See K.S.A. 21-3814. If the legislature believes it has been misunderstood, we are confident that an appropriate amendment of the statutory language will follow publication of this opinion.
Finally, we agree with Urban’s counsel that the Court of Appeals’ note about Urban receiving jail credit for her time at the Center, less the time while she was missing, is irrelevant. The propriety of awarding jail credit in such a situation is a matter for another court on another day. The Court of Appeals did not appear to put great weight on this fact here, much less reason backward from it to its result; we comment only to ensure that our silence now is not misinterpreted in the future as approval.
D. The Significance of Hampton
The final section of the Court of Appeals decision in this case is reserved for its discussion and dismissal of State v. Hampton, No. 91,092, an unpublished opinion filed by another Court of Appeals panel on September 24, 2004.
In that case, defendant Andrew A. Hampton, who had been charged but not convicted in a felony prosecution and who was on a $10,000 personal recognizance bond, was released to a community corrections residential facility. When he left the facility and failed to return, he was charged with and pleaded guilty to aggravated escape.
Five years later, Hampton argued that he should be permitted to withdraw his plea because he had not been in the “custody” necessary to support the aggravated escape charge. The Court of Appeals panel agreed with his argument on the factual impossibility of an aggravated escape. See Hampton, slip op. at 16-17.
“Custody as defined in 21-3809(b)(l) does not include actions which are a part of general supervision of a person on parole or probation or constraint incidental to release on bail. By this definition, it appears clear that the legislature did not intend to include walking away from a community corrections residential center before conviction and while on bond to be an aggravated escape from custody as opposed to bail jumping. The legislature could have included such a walk away as escape or aggravated escape, but it has not done so.” Hampton, slip op. at 11.
The Court of Appeals panel in this case first pointed out a factual distinction between Urban and Hampton, i.e., that Urban had been convicted while Hampton had not; but it acknowledged that such a distinction was of no moment under the first sentence of K.S.A. 21-3908(b)(l). It also said that it found Hampton less helpful than Garrett, because it did not discuss the “court order” section of the first sentence of the statute while Garrett did. Urban, 40 Kan. App. 2d at 522-23. As we have discussed in the preceding section, Garrett focused on an earlier version of the statutory language on detention pursuant to court order, and that makes its pronouncements on that language of little use. Although the Court of Appeals panel also criticized Hamptons lack of discussion of the meaning of “incidental to,” Garrett also did not discuss this wording choice, or, for that matter, anything related to the second sentence of K.S.A. 21-3809(b)(l).
The main problem with the Court of Appeals panel’s discussion of Hampton is that it ignored the critical factual similarity between Urban and Hampton. Each was on felony bond at the time of the charged escape. Unlike conviction status under the first sentence of K.S.A. 21-3809(b)(l), the existence of each bond and the relationship between it and the residential constraint placed on the defendant under the second sentence of K.S.A. 21-3809(b)(l) has dispositive legal significance. Each defendant was subject to detention that could qualify as “custody” under the first sentence of K.S.A. 21-3809(b)(l), but the bond and the constraint incidental to it excluded each defendant’s situation under the second sentence of the statute. As a result, neither Hampton nor Urban could be charged with aggravated escape.
Finally, we must comment on the stare decisis value of Hampton.
The Court of Appeals panel was correct that it had the right to disagree with a previous panel of the same court. See K.S.A. 20-3018(b) (Supreme Court may review Court of Appeals decision when in conflict with another). And the State is correct that unpublished decisions are generally afforded little precedential authority; indeed, they are not to be cited to a court unless they are significant for issue or claim preclusion or for law of the case or there is no published case on the same point of law. See Supreme Court Rule 7.04(f)(2) (2009 Kan. Ct. R. Annot. 54). We are not compelled today, and the district court was not compelled when it dismissed Urban’s charge for aggravated escape, to decide this case as we do because of the Hampton decision. Rather, our result is demanded by the plain language of the governing statute. Hampton is merely persuasive authority arising out of factually similar circumstances. We read it, as always, with interest and respect; but we are not bound to follow it.
The Court of Appeals is reversed. The district court is affirmed. | [
-48,
-24,
-35,
-66,
90,
97,
59,
16,
98,
-9,
-20,
83,
-87,
-54,
5,
121,
25,
71,
84,
105,
80,
-73,
-57,
-63,
-10,
-13,
-45,
-47,
-69,
95,
-10,
-108,
9,
112,
-118,
87,
102,
-54,
87,
82,
-114,
7,
-119,
81,
-56,
-126,
32,
107,
26,
14,
113,
29,
-13,
104,
16,
-21,
104,
41,
-37,
-89,
-114,
-39,
-39,
15,
-37,
20,
-77,
-124,
-76,
13,
88,
34,
-104,
56,
1,
-24,
115,
-122,
-122,
-12,
109,
-101,
44,
102,
98,
33,
28,
-25,
-68,
-120,
46,
87,
-83,
-89,
-39,
88,
107,
0,
-106,
-3,
117,
86,
7,
-4,
-26,
36,
15,
-20,
4,
-34,
-112,
-109,
13,
49,
2,
-91,
-29,
33,
-96,
97,
-49,
-30,
92,
-9,
113,
-37,
-18,
-78
] |
The opinion of the court was delivered by
Johnson, J.:
The Kansas Department of Revenue (KDR) administratively suspended Charles McIntosh’s driving privileges based upon a refusal to submit to a breath test following his arrest for driving under the influence (DUI), see K.S.A. 2009 Supp. 8-1002. McIntosh petitioned the district court to review the suspension, claiming that he had effectively rescinded his refusal and consented to take the breath test. The district court found that McIntosh had appropriately rescinded his test refusal; that he should have been permitted to take the breath test; and that the administrative driver’s license suspension should be dismissed. KDR appealed the district court’s decision, and the case was transferred to this court on its own motion. See K.S.A. 20-3018(c). We affirm the district court.
Factual and Procedural Overview
Officer Rod Weber of the Great Bend Police Department arrested McIntosh for DUI and transported him to the law enforcement center. Upon arrival in the receiving room, the jail staff did a pat-down search of McIntosh for weapons or contraband, after which Officer Weber proceeded to give McIntosh the implied consent advisories. When asked if he would submit to a breath test, McIntosh said no. Jail staff then escorted McIntosh to the booking area for processing, while Officer Weber remained in the receiving area for approximately 20 to 30 minutes to complete the Officer’s Certification and Notice of Suspension, form DC-27, and to prepare citations. From his location in the receiving room, Officer Weber could not see McIntosh in the booking area of the jail.
When the paperwork was completed, Officer Weber went into the booking area and personally served McIntosh with the DC-27 form and the citations. At that time, McIntosh advised Officer Weber that he wanted to take the breath test, but Officer Weber would not administer it because he believed that McIntosh had been given ample opportunity to take the test earlier.
In the DC-27 form, Officer Weber certified a test refusal and, after an administrative hearing, KDR issued an order suspending McIntosh’s driving privileges. McIntosh petitioned the district court for review of the administrative order, alleging that the officer’s certification of a test refusal was erroneous because McIntosh had timely rescinded the refusal and consented to the test. At the district court hearing, both parties argued that the factors governing a rescission of a test refusal set forth in Standish v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984), were controlling. The district court took the matter under advisement and directed the parties to submit memoranda. Ultimately, the district court issued a journal entry in which it found that “plaintiff appropriately rescinded’ his refusal pursuant to Kansas law and that he should have been allowed to take the requested breath test.”
Did the district court err in determining that plaintiff effectively rescinded his refusal to submit to a breath alcohol test?
Standard of Review
“Following a trial de novo, this court reviews the trial court’s license suspension to determine if it is supported by substantial competent evidence. [Citation omitted.]” Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 772, 148 P.3d 538 (2006). However, as KDR acknowledges, the parties in this case do not dispute the underlying facts. Rather, die question presented is the manner in which our prior opinion in Standish should be interpreted and applied to the undisputed facts. Accordingly, we are presented with a question of law, for which this court’s review is unlimited. Cf. Bruch, 282 Kan. at 772 (statutory interpretation is a question of law subject to unlimited review).
Analysis
Given that KDR relies exclusively on Standish, we begin by reviewing that case. A law enforcement officer arrested Standish for DUI, advised him of his Miranda rights, and then asked him to take a breathalyzer test. Standish responded that he wanted to talk with his attorney first. The officer took Standish to the police department, where he unsuccessfully attempted to call his attorney. When Standish continued to refuse to take the breath test until he had consulted his attorney, the officer took Standish to the county jail. The officer left the jail and returned to duty. Within 15 to 30 minutes, Standish asked a jailer whether he was going to take the test. Without consulting the arresting officer, the jailer responded that it was too late. The arresting officer testified that if Standish had changed his mind while still in the officer s custody, the officer would have administered the test.
The administrative law judge found that Standish had refused to submit to a chemical breath test and suspended his driving privileges. Standish appealed to the district court, where, following an evidentiary hearing, the court found that Standish had rescinded his test refusal within a reasonable time and, therefore, the suspension order was reversed. The KDR appealed, raising “but one issue on appeal: whether an initial refusal to submit to a lawfully requested chemical test of breath to determine the alcoholic content of the blood, K.S.A. 8-1001, may be ‘rescinded’ by subsequent consent.” 235 Kan. at 900-01.
The Standish opinion began by reciting that K.S.A. 8-1001 provides that all vehicle operators are deemed to have given their consent to submit to a chemical test of breath or blood to determine the alcoholic content in the operator’s blood, and that a refusal to submit to such testing can result in the suspension of the operator’s driver’s license. The court then noted that “[tjhere is nothing within the statute regarding the right of a person so arrested to change his mind and ‘rescind’ a refusal to take the test.” 235 Kan. at 902. However, after advising that it had carefully considered cases from other jurisdictions, which were chain cited without further discussion or analysis, the opinion declared:
“The chemical testing system provided under our implied consent law is important because it provides the best available and most rehable method of determining whether a driver is ‘under the influence’ of alcohol. It protects both the accused and the public. A refusal to submit to the test, on the other hand, invokes serious consequences for the person arrested. We believe that the administration of the test should be encouraged and the person arrested should be given every reasonable opportunity to submit to it. For this reason, we hold that an initial refusal may be changed or rescinded, and if rescinded in accordance with the following rules, cures the prior refusal. To be effective, the subsequent consent must be made:
(1) within a very short and reasonable time after the prior first refusal;
(2) when a test administered upon the subsequent consent would still be accurate;
(3) when testing equipment is still readily available;
(4) when honoring the request will result in no substantial inconvenience or expense to the police; and
(5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.” 235 Kan. at 902-03.
After establishing the rules for curing an initial test refusal, the court briefly discussed how the rescission rules applied to Standish’s scenario, albeit without referring to any individually enumerated rule. We take the liberty of quoting the analysis in its entirety:
“For example, if Standish had refused at the scene and then changed his mind and requested the test a few minutes later when he arrived at the police station, the test should have been given. Here, however, Standish did not change his mind until the arresting officer had taken him from the scene to the police station and then to the jail, and until some time after the officer had left the jail and returned to his other duties. This, under the rules laid down above, was too late. The arresting officer need not sit and wait for the person to change his or her mind, and thus neglect other duties.” 235 Kan. at 903.
In the interest of completeness, we note that the Supreme Court ultimately affirmed the district court’s reversal of Standish’s license suspension, notwithstanding the absence of a curative rescission. Standish found that the giving of the Mirancla warnings immediately prior to requesting a breath alcohol test could have misled Standish into believing that he had the constitutional right to consult with an attorney before consenting to the test, even though no such right exists. Therefore, Standish held that the test refusal was reasonable under those unique circumstances, which circumstances are not present in the case before us. 235 Kan. at 905. Here, we are only considering the validity of the curative rescission.
KDR relies exclusively on its interpretation of the Standish rules, specifically, the first and last enumerated rules. It does not challenge compliance with the middle three rules. When McIntosh asked to take the test: the results would still have been accurate; the testing equipment was still readily available; and honoring the request would not have resulted in substantial inconvenience or expense to the police. Rather, KDR contends that the test request was not made within a very short and reasonable time after the initial refusal and that McIntosh was not in the custody of the arresting officer, Officer Weber, and under his observation for the whole time between arrest and the rescinded refusal/test request.
KDR attempts to flesh out the Standish opinion to divine a specific and unique meaning in the language employed in the first and last rules. Although Lund v. Hjelle, 224 N.W.2d 552 (N.D. 1974), was simply included in Standish’s chain cite, without any discussion or analysis, KDR speculates that the Standish court lifted the Kansas rules for rescission from that North Dakota decision. Then, KDR argues that certain modifications to the Lund language manifest an intent by this court to make the rules more restrictive in this state.
Specifically, KDR points out that Lund said the postrefusal test request must be “made within a reasonable time after the prior first refusal.” 224 N.W.2d at 557. In contrast, the Standish rule requires the subsequent consent to be “within a very short and reasonable time after the prior first refusal.” (Emphasis added.) 235 Kan. at 903. Likewise, Lund required that the requesting individual “has been in police custody and under observation for the whole time since his arrest.” 224 N.W.2d at 557. In contrast, Standish replaced “in police custody” with “in the custody of the arresting officer.” 235 Kan. at 903.
The striking similarity between the language employed in Lund and that used in the Standish rules gives credence to KDR’s theory that Lund was used as the examplar for our rules, notwithstanding the absence of any discussion of Lund. Likewise, the utilization of the modified language might be considered an obtuse signal that the Kansas court meant something different than the North Dakota court. Nevertheless, given that the Standish rescission rules were court-created to further the purposes of the implied consent law, it is only logical that the rules should be interpreted with a view to furthering their purposes.
Timeliness
KDR argues that the time elapse of approximately 30 minutes between McIntosh’s test refusal and subsequent request to take the test was outside the “very short” time requirement in Standish’s first rule. To support that contention, KDR recites the Standish analysis, quoted above, and singles out the sentence that reads: “This, under the rules laid down above, was too late.” 235 Kan. at 903. Then, the KDR asserts that the time period in Standish was from “fifteen to thirty minutes.” 235 Kan. at 901. The apparent suggestion is that if 15 to 30 minutes was too late in Standish, then 30 minutes must be untimely in this case. We note both factual and analytical problems with KDR’s argument.
In reciting the facts, the Standish opinion says that the arresting officer took Standish to the jail and then the officer “left the jail and returned to duty. Within fifteen to thirty minutes Standish talked to the jailer and asked him, ‘Am I going to take this test or what?’ ” 235 Kan. at 901. It is not clear whether the 15 to 30 minutes refers to the time that elapsed after the officer left the jail and returned to duty or, as KDR apparently contends, refers to the time that elapsed between the test refusal and subsequent request. Furthermore, in our case, Officer Weber’s actual testimony was that it took him roughly 20 to 30 minutes to complete the paperwork after the refusal.
More importantly, the Standish analysis does not clarify whether the subsequent request was too late under the first rule, either because the elapsed time between refusal and rescission was not a very short time or was not a reasonable time, or whether the request came too late under the fourth rule because honoring the request would have resulted in substantial inconvenience for the police. The analysis emphasizes that the officer had left the jail and returned to his other duties and declares that the “arresting officer need not sit and wait for the person to change his or her mind, and thus neglect other duties.” 235 Kan. at 903. Given that emphasis, we do not believe that Standish intended to create a bright-line rule that 30 minutes is not a very short time, le., a rule that a 30-minute old refusal cannot be cured. Rather, the focus should be on the particular circumstances of a case, including a look at what is transpiring during the period of delay.
Here, unlike the officer in Standish, Officer Weber had not left the jail to return to his regular duties when McIntosh asked to take the test. In fact, Officer Weber was still performing or in the process of concluding his duties with respect to the DUI arrest. See K.S.A. 2009 Supp. 8-1002(c) and (e) (officer shall personally serve notice of suspension upon person still in custody when determination of test refusal is made; if person refuses test, officer shall take any license in person s possession and issue temporary license). Moreover, as McIntosh points out, he rescinded his test refusal at the first opportunity he had to convey his wishes to Officer Weber. The elapsed time between refusal and rescission in this instance was totally under the control of the officer, who could take whatever time he wanted to complete the notice of suspension and temporary license that had to be personally served on McIntosh. There is no indication that McIntosh was intentionally manipulating the right of rescission.
The time frame here is more akin to the scenario in State v. Gray, 270 Kan. 793, 797, 18 P.3d 962 (2001). In Gray, the arresting officer gave the implied consent advisory and asked Gray to take a breath test. Gray responded that he did not have his glasses with him, that he could not understand the form, and that he wanted to speak with an attorney. The officer advised Gray that he could not consult with an attorney, but reread a portion of the implied consent notice. Gray reiterated that he wanted to speak to an attorney and opined that because he could not read the form, he should not have to take the test. “All told, the meeting between [the officer] and Gray took about 35 minutes.” 270 Kan. at 795. The officer determined that Gray’s actions constituted a test refusal and marked the DC-27 accordingly. When the form was served on Gray, he immediately said he would take the test, but the officer would not allow the test.
On appeal, this court found the facts of that case clearly met each of the Standish elements. With respect to the timeliness rule, Gray stated that “[t]he subsequent consent was given within a minute or less of when the officer checked the ‘refusal’ box on the consent form.” 270 Kan. at 797. Here, although we do not know exactly when Officer Weber may have checked the refusal box on the consent form, McIntosh’s consent came immediately upon being served with that form, i.e., upon being notified that the refusal box had been checked. Accordingly, we find that McIntosh’s rescission was timely under the Standish standards.
Custody and Observation
The fifth Standish rule requires that the person requesting the test, i.e., rescinding a prior refusal, “has been in the custody of the arresting officer and under observation for the whole time since arrest.” 235 Kan. at 903. KDR argued to the district court that this means that the person must be in the immediate presence of the arresting officer for the whole time from arrest until the rescission. The rationale proffered below was that an absence from the officer’s presence could compromise the protocol for the test, because a defendant could claim that he or she “burped a little bit ago” or that he or she had put a hand in the mouth.
McIntosh countered that the protocol for conducting a breath test only requires an observation period of 20 minutes immediately preceding the test. A test result is not invalidated if a person “burps” or places something in his or her mouth at some point following arrest, so long as the proscribed conduct does not occur during the requisite 20-minute observation period. McIntosh suggests that the only conduct that would have invalidated the test results was a postarrest consumption of alcohol. That conduct was precluded in this case by the initial search of McIntosh for contraband and by McIntosh being in the custody of the jail personnel during the period he was not being personally observed by Officer Weber.
As noted, Standish did not favor us with an explanation of why it chose the language employed in the fifth rule. For instance, we note that the prepositional phrase “of the arresting officer” is applied to “custody,” but not to “observation,” which might suggest that someone other than the arresting officer could be performing the observation requirement while the defendant is in the arresting officer’s custody. Granted, the countering argument is that to be in the arresting officer’s custody the defendant must be in the officer’s physical presence and, thus, under the officer’s observation. Of course, if that was the intent, one might ponder the necessity of including both a custody and an under-observation requirement. Nevertheless, we do not believe our decision should hinge on parsing the language used to create the court-made rule in Standish. Rather, we should be guided by the purpose behind the rule.
In developing the rescission rule, Standish opined “that the administration of the test should be encouraged and the person arrested should be given every reasonable opportunity to submit to it.” 235 Kan. at 902. As McIntosh argues, under KDR’s interpretation of the rule, some arrested persons will be precluded from changing their minds about taking the test, even if the consent immediately follows refusal, based upon what the officer may have done after the arrest. For instance, an arresting officer might leave the arrestee in the patrol car or in the custody of another officer while searching the arrestee’s vehicle for open containers. The officer might use the restroom or permit the arrestee to do so. The officer might not be certified on the testing equipment, so that custody of the arrestee is delivered to a test-qualified officer. In such instances, the arrestee would not have been under observation by the arresting officer for the whole time following arrest.
Such lapses in the arresting officer’s custody and observation would not preclude the arrestee’s opportunity to initially consent to a breath test. KDR argues that a consent which follows an initial test refusal is simply treated differently than an initial consent. It does not explain how that disparate treatment comports with the concept of providing arrestees with “every reasonable opportunity to submit to [blood alcohol testing].” Standish, 235 Kan. at 902. To the contrary, KDR would have us provide McIntosh with but one opportunity to submit to testing.
The better argument may be that the lapse of observation in this case occurred after the test refusal and that Officer Weber could not personally attest to McIntosh’s abstinence from further alcohol consumption during that period. However, upon arrival at the jail, McIntosh was personally searched for contraband, which presumably would include any alcoholic beverages. Further, he was in the custody of jail personnel for the purpose of completing the booking process. It is not unreasonable to impute to the arresting officer the jailers’ observational knowledge, i.e., that McIntosh was not drinking alcohol during the booking process. Cf. State v. Bieker, 35 Kan. App. 2d 427, 435, 132 P.3d 478, rev. denied 282 Kan. 792 (2006) (an officer’s reasonable suspicion to detain may be based upon the collective knowledge of all officers involved). Accordingly, we find that the circumstances in this case conformed to the custody and observation requirements for a valid rescission.
In conclusion, we find that the district court did not err in finding that McIntosh’s rescission of his refusal of a breath test met the Standish requirements; that McIntosh’s subsequent consent to testing was valid; that the arresting officer should not have refused to allow the testing; and that KDR’s suspension of McIntosh’s driver’s license was invalid and must be reversed.
Affirmed.
Davis, C.J., not participating.
Michael F. Powers, District Judge, assigned. | [
-48,
-21,
-19,
-114,
43,
-64,
-77,
-100,
81,
-77,
103,
115,
-83,
-38,
5,
59,
-14,
125,
84,
89,
-33,
-77,
119,
-64,
-2,
-13,
-40,
91,
-77,
91,
-12,
-12,
77,
-79,
-118,
-107,
38,
-54,
-121,
88,
-124,
6,
-71,
96,
81,
-104,
36,
97,
-93,
15,
49,
-97,
-29,
62,
25,
-125,
-19,
60,
-37,
-123,
-128,
-15,
-71,
21,
-33,
68,
-77,
4,
-104,
-115,
-40,
54,
-104,
-71,
0,
-8,
-77,
-74,
-126,
-12,
15,
-71,
-87,
-90,
106,
32,
29,
-59,
-4,
-84,
30,
58,
-97,
-90,
-104,
89,
105,
-116,
-106,
-67,
124,
22,
15,
124,
111,
68,
91,
60,
10,
-37,
-72,
-111,
-49,
53,
-126,
67,
-1,
-63,
16,
97,
-121,
-10,
94,
-59,
122,
27,
-10,
-76
] |
The opinion of the court was delivered by
Nuss, J.:
A jury convicted Billy J. McCaslin of first-degree premeditated murder, rape, and aggravated arson. The court sentenced him to prison without the possibility of parole for 50 years (hard 50) for the murder conviction, 246 months for the rape conviction, and 61 months for the aggravated arson conviction, with all sentences to run consecutively. Our jurisdiction of his direct appeal is under K.S.A. 22-3601(b)(l), conviction of an off-grid crime.
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the trial court err in admitting hearsay evidence in violation of McCasliris right to confront the witnesses against him? Not preserved for appeal.
2. Did sufficient evidence support McCasliris convictions? Yes.
3. Did the prosecutor commit reversible misconduct? No.
4. Did the trial court err in admitting into evidence a video showing the fire department’s arrival and response to the fire? No.
5. Did the trial court err in admitting into evidence a photograph of the burned house, which included the victim’s burned naked body? No.
6. Did sufficient evidence support the hard 50 sentence? Yes.
7. Is the Kansas hard 50 sentencing scheme constitutional? Yes.
8. Did the trial court err by sentencing McCaslin to the aggravated terms in the sentencing grid blocks for his rape and aggravated arson convictions? No.
9. Did the trial court violate McCaslin’s Sixth and Fourteenth Amendment rights when it imposed enhanced sentences without submitting the enhancing factors, i.e., prior convictions, to the jury for proof beyond a reasonable doubt? No.
10.Did cumulative error deny McCaslin a fair trial? No.
Accordingly, we affirm.
Facts
On December 2, 2006, firefighters responded to a 911 call of a possible fire at 1701 South Láura Street in Wichita, Kansas. The house was the residence of Angela Duran-Ortiz (A.D.). Firefighters proceeded toward an orange glow coming from one of the bedrooms. Once the fire was extinguished and the smoke cleared, A.D.’s body was found on the bed. Her body was naked, except for a sock on her right foot. Her legs were spread apart and hanging over the side of the bed. A.D. was severely burned and had at least 13 visible stab or slash wounds.
McCaslin and A.D. had known each other for approximately 2Vz years before her death. McCaslin dealt drugs and sold cocaine to A.D. one or two times per week. He sometimes spent the night at A.D.’s house. McCaslin said they had engaged in sexual intercourse on five previous occasions but denied that they were in a relationship.
By contrast, Luis Aguilar had known A.D. for approximately 1 week prior to her death. When A.D.’s work shift ended at midnight, Aguilar sometimes took her to her mother’s house where her three children stayed. The relationship between Aguilar and A.D. was not sexual in nature.
Shortly after midnight on the morning of A.D.’s death, Aguilar picked her up from work and drove to her mother’s house. Unable to find a movie to watch there, they headed to Wal-Mart. There, A.D. ignored multiple calls to her cell phone but eventually answered. After hanging up, A.D. asked Aguilar if he would go with her to pick up her friend. Aguilar agreed to pick up this unknown person. They drove to an apartment complex, and McCaslin entered the vehicle. Aguilar did not know McCaslin before this encounter. The three then went to McDonald’s so A.D. could buy some food for her children. When they arrived at the mother’s house with the food, A.D. told her mother that she was going to her house to pick up a movie and would return shortly.
A.D., Aguilar, and McCaslin went to A.D.’s house. Once inside, they drank beer, smoked marijuana, and snorted cocaine. When McCaslin left the house at approximately 2:30 a.m., A.D. and Aguilar remained in the kitchen and continued drinking. According to McCaslin, A.D. had asked him to buy crack cocaine and both A.D. and Aguilar gave him $20 for the purchase.
Once McCaslin left A.D.’s house, he got a ride to a pornography shop to make two drug transactions: a purchase of crack cocaine and a sale of powder cocaine. He arranged these transactions on his “Trac” phone, which he used for illegal activity.
About 1 hour later, McCaslin returned to A.D.’s house and went to a back bedroom by himself. According to McCaslin, A.D. told him to go to the bedroom so they could pretend he was waiting on a cocaine delivery and avoid sharing the drugs with Aguilar. Aguilar and A.D. remained at the kitchen table, but A.D. checked on McCaslin three or four times in the bedroom, each time returning within a minute or two. While Aguilar could not see or hear inside the bedroom, McCaslin claimed that A.D. “took hits” off a crack pipe each trip and there was some “feeling, groping, [and] a httle bit of kissing, flirting around.”
At approximately 5:40 a.m., Aguilar decided to leave. According to Aguilar, McCaslin was still in the bedroom and A.D. was setting up a bed on the living room couch. A.D. asked Aguilar to call her when he arrived at his parents’ house. His parents heard him enter and estimated his return between 4:45 a.m. and 6 a.m. When Agui lar called A.D., they made plans to meet at 4 o’clock that afternoon. During the call, A.D. indicated that McCaslin was still in the bedroom.
According to McCaslin, he and A.D. engaged in consensual sexual intercourse after Aguilar left. They stayed in the bedroom for about 1 hour until A.D. got a phone call and left to talk in the front room. McCaslin decided to leave, but because A.D. was nervous and worried Aguilar would return, McCaslin offered to get his pistol for her. He got a ride to his mother’s house and arranged for his father to later pick him up for work at A.D.’s house.
McCaslin testified that he returned to A.D.’s house and took off his shoes because of the snow, mud, and wet ground outside. A.D. did not answer McCaslin’s calls, so he went inside. Upon reaching the bathroom, McCaslin slipped in a pool of blood but caught himself before falling to the floor. He then saw a fully-clothed A.D. on the bathroom floor. She had a knife sticking out of her chest and a handle of an unknown object sticking out of her neck.
McCaslin bent down to see if A.D. was alive, but she was non-responsive. Because he was bloody from his contact with her body, he tried to wipe off the blood with clothes found in the house. He was unsuccessful and went to the kitchen and used some towels. He took off his clothes and changed into some of A.D.’s clothing, including a pair of women’s jeans. Because he knew there was no running water in the house, he finished cleaning himself with milk. He put his bloody clothes and a “Presto” lighter into a pillow sham and went out the back door. He quickly found a trash dumpster in the alley and put the pillow sham inside.
When McCaslin was a few blocks from A.D.’s house, he called his father, who picked him up and took him to McCaslin’s mother’s house. There he undressed, showered, and placed the removed clothes into a bag. He rejoined his father in the truck and headed to work in Valley Center. On the way, McCaslin directed his father to the dumpster containing the pillow sham. Once there, McCaslin retrieved the pillow sham containing the bloody clothes from the dumpster.
McCaslin then directed his father to find a dumpster in Valley Center. Once there, he put both containers of clothes — the pillow sham and the bag from his mother’s house — into the dumpster. After work, McCaslin went to a Kwik Shop, where he gave his pistol, ammunition, and cocaine to a friend.
Sometime after an 11:10 a.m. call to 911 reporting smoke coming from A.D.’s house, Fire Investigator David Higday examined the scene. The position of A.D.’s body on the bed intrigued Higday because a fire victim’s legs usually draw upwards rather than hang down spread apart. Fire investigators determined the fire was intentional and that A.D.’s body had been covered in an ignitable liquid.
Deputy Coroner Deborah Johnson performed A.D.’s autopsy. She concluded that the 13 stab and slash wounds were inflicted before the fire was set. Johnson also concluded that because A.D. had soot in her lungs and stomach, A.D. was still alive when the fire started. Accordingly, the official cause of death was “multiple stab wounds associated with thermal bums and soot and smoke inhalation.” Subsequent vaginal swabs revealed DNA from Mc-Caslin.
McCaslin later directed police to the pillow sham and the bag of clothes in the Valley Center dumpster.
A jury convicted McCaslin of first-degree premeditated murder, rape, and aggravated arson. The court sentenced him to prison without the possibility of parole for 50 years (hard 50) for the murder conviction, 246 months for the rape conviction, and 61 months for the aggravated arson conviction, with all sentences to run consecutively.
More facts will be added as necessary to the analysis.
Analysis
Issue 1: McCaslin s confrontation and hearsay arguments were not preserved for appeal.
McCaslin first argues the trial court admitted hearsay evidence in violation of his Sixth Amendment right under the United States Constitution to confront the witnesses against him. See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The State responds that he has not preserved these evidentiary questions for our review.
On direct-examination, McCaslin testified that he engaged in sexual relations with A.D. five times in the past 2 years but maintained they were not in a relationship. During the State’s cross-examination, McCaslin’s counsel objected during the following exchange:
“Q. [PROSECUTOR:] Are you aware that [A.D.’s] friend said — you would not be aware because it’s not in the police reports that she said she would never— she never would have had sex with you?
“[DEFENSE ATTORNEY]: Objection, Your Honor. He is [sic] stating facts not in evidence.
“[PROSECUTOR]: I’m asking if he’s aware of that.
“[DEFENSE ATTORNEY]: And again—
“THE COURT: Overruled. You can answer the question.
“A. [MCCASLIN:] I’ve read the reports. I’ve read a lot of things in them reports.”
McCaslin’s motion for a new trial changed his basis for objecting from assuming facts not in evidence to (1) hearsay and (2) Confrontation Clause violations. The trial court denied the motion and found any error to be harmless. In relevant part, the judge said:
“Bottom line in my opinion is that the question was an martfully asked question. The response to the question was nonresponsive because the question wasn’t artfully drafted or asked rather. I probably at that point should have just over— sustained the objection based on the form of the question, but at the end of the day it seems to me that what Mr. O’Connor [the prosecutor] was asking Mr. McCaslin is whether or not he was aware that certain friends of the victim held the opinion that the victim would never have slept with him. .
“In any event, it was never the opinion- — -evidence was never offered, but at the same time the subject was never brought up again during the entire course of the trial. And I’m unable to rule that this isolated reference to opinion evidence had any bearing on the jury’s verdict especially in light of the evidence of the defendant’s guilt which I summarized on my ruling on the motion for acquittal.
T guess the bottom line on that issue is that it was a bad question. The answer to the question was not responsive. The subject matter of the question was never raised again either in the cross-examination of the defendant, in the examination of the other witnesses or during the closing argument presented by the State so I don’t think it had any bearing on the outcome of the trial.”
We have long recognized the general rule that “a party cannot raise an issue on appeal where no contemporaneous objection was made and where the trial court did not have an opportunity to rule.” State v. Kirtdoll, 281 Kan. 1138, 1148, 136 P.3d 417 (2006); see, e.g., State v. Yarrington, 238 Kan. 141, 145, 708 P.2d 524 (1985).
Our recent decision in State v. King, 288 Kan. 333, 204 P.3d 585 (2009), reaffirmed our commitment to the requirement that, pursuant to K.S.A. 60-404, “evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial.” 288 Kan. at 349. In King, the defendant failed to object during trial to the prosecutor’s cross-examination of him. We refused to consider the alleged constitutional violation asserted for the first time on appeal: the prosecutor’s use of defendant’s postarrest silence to impeach defendant’s credibility in violation of the Fifth and Fourteenth Amendments to the United States Constitution as prohibited in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).
In King we distinguished between evidentiary claims, for which a specific trial objection is required to preserve the issue for appeal, and prosecutorial misconduct claims, for which no objection is required at all. We noted that, like the instant case, a prosecutor’s questions themselves can be considered evidentiary. “[A] prosecutor’s questions during the examination of a witness — even when these questions lead to a potential Doyle violation — fall under the evidentiary umbrella.” 288 Kan. at 347. We concluded:
“[I]n accordance with the plain language of K.S.A. 60-404, evidentiary claims— including questions posed by a prosecutor and responses to those questions during trial — must be preserved by way of a contemporaneous objection for those claims to be reviewed on appeal.” 288 Kan. at 349.
Additionally, as we recently recognized in State v. Dukes, 290 Kan. 485, 231 P.3d 558 (2010), the United States Supreme Court declared that the “defendant always has the burden of raising his Confrontation Clause objection” and noted that “[sjtates are free to adopt procedural rules governing objections.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 327, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). We have acknowledged that this declaration in Melendez-Diaz was consistent with the general rule established by K.S.A. 60-404. See State v. Laturner, 289 Kan. 727, 752, 218 P.3d 23 (2009); see also State v. Mays, 277 Kan. 359, 384-85, 85 P.3d 1208 (2004) (defendant’s failure to timely object to alleged hearsay statements precludes defendant from raising issue on appeal, even where alleging violation of Confrontation Clause of Sixth Amendment).
In Dukes, we reaffirmed that the contemporaneous objection rule requires each party to make a specific and timely objection at trial in order to preserve evidentiary issues for appeal. See K.S.A. 60-404. The purpose of the rule is to avoid the use of “tainted evidence [and thereby] avoid possible reversal and a new trial.” Dukes, 290 Kan. at 488 (citing King, 288 Kan. at 342). We have stated that “the trial court must be provided the specific objection so it may consider as fully as possible whether the evidence should be admitted and therefore reduce the chances of reversible error.” State v. Richmond, 289 Kan. 419, 428-29, 212 P.3d 165 (2009). Specifically, in Richmond we refused to allow the defendant to object on one ground at trial and then argue another on appeal. 289 Kan. at 428-30; see State v. Engelhardt, 280 Kan. 113, 127, 119 P.3d 148 (2005).
Consequently, while McCaslin made a timely and specific objection of “stating facts not in evidence,” it is nevertheless insufficient to preserve hearsay and confrontation issues for appeal. The three are not equivalents. In State v. Bryant, 272 Kan. 1204, 38 P.2d 661 (2002), defendant raised a hearsay objection at trial but on appeal instead argued violation of the Confrontation Clause. This court would not consider the confrontation argument on the merits, including in its reasons (1) the requirement that objections must “make clear the specific ground of objection” and (2) “a defendant may not object to the introduction of evidence on one ground at trial, and then assert a different objection on appeal.” 272 Kan. at 1208. Moreover, as the United States Supreme Court has recently explained, the improper admission of hearsay evidence is not necessarily violative of the Confrontation Clause. See Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (“It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confron tation Clause.”); Crawford, 541 U.S. at 68 (“Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law— as does [Ohio v. Roberts, 448 U.S. 56 (1980),] and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.”).
As Davis, Crawford, and Bryant indicate, there may be some overlap of objections based upon hearsay and confrontation. Indeed, it might be argued that all statements violating the Confrontation Clause are also necessarily hearsay. But as Bryant makes clear, their overlap does not satisfy the specificity requirement of the objection. Similarly, there may be some overlap of objections based upon hearsay and those that “assume facts not in evidence.” Indeed, it might be argued that all hearsay violations — and therefore Confrontation Clause violations — also necessarily “assume facts not in evidence.” But under the rationale and holding of Bryant, such overlap does not satisfy the specificity requirement of the objection. McCaslin’s posttrial motion for a new trial admittedly raised these specific grounds. But posttrial was too late. See State v. Brinkley, 256 Kan. 808, 824, 888 P.2d 819 (1995) (declining to address an evidentiaiy challenge raised for the first time in a post-trial motion for a new trial).
Stated another way, to comply with the contemporaneous objection requirement to preserve these two grounds for appeal, McCaslin needed to raise them timely during trial. See, e.g., State v. Houston, 289 Kan. 252, 270, 213 P.3d 728 (2009). The principle is clear: Specific and timely objections must be made to the trial court “so it may consider as fully as possible whether the evidence should be admitted and therefore reduce the chances of reversible error.” Richmond, 289 Kan. at 429.
The specificity requirement is particularly important when a Confrontation Clause objection is warranted because the trial court would then be on notice of its obligation to follow the multistep analysis detailed in Crawford, and to give the prosecutor the opportunity to meet Crawford’s requirements. See 541 U.S. at 68 (whether statement is testimonial and, if so, whether witness is unavailable and defendant had prior opportunity to cross-examine). Similarly, when a hearsay objection is warranted, the evidence proponent could argue that the statement is not hearsay because it is not being “offered to prove the truth of the matter stated.” See K.S.A. 60-460. Or, if the statement is hearsay, the proponent could argue that one or more of the numerous exceptions applies. See K.S.A. 60-460(a)-(ee). But if a different ground had been raised by the objecting party and analyzed by the trial court, the appellate court obviously has no trial court analysis in the record to review in its determination of the newly alleged hearsay or confrontation error.
Accordingly, we decline to address the merits of McCaslin’s confrontation and hearsay arguments. Nor do we reach the merits of his trial objection, stating facts not in evidence, because he has not briefed or argued it on appeal. See Richmond, 289 Kan. at 437 (issue not briefed is deemed waived or abandoned); see also Bryant, 272 Kan. at 1208; (trial objection on hearsay grounds not addressed on appeal; defendant instead argued confrontation grounds).
The dissent argues that the confrontation and hearsay arguments should be addressed on appeal. In its effort to support this conclusion, it points to other situations where this court allegedly has reached decisions based upon reasons other than those argued by the parties.
We need not attempt to analyze all of the situations described by the dissent because a simple, distinguishing response suffices. That is, the limited issue before us concerns an evidentiary objection. The Kansas Legislature has established the rule for evidentiary objections by statute. The legislature, not this court, requires that the objection at the trial court to the admission of evidence “make clear the specific ground of objection.” (Emphasis added.) K.S.A. 60-404. Otherwise, the verdict cannot be set aside. 60-404. Under the separation of powers doctrine, this court has no constitutional authority to essentially negate the legislature’s decision to require a specific ground of objection in the trial court by then allowing a different objection to be argued in the appellate court. See State v. Freeman, 195 Kan. 561, 564, 408 P.2d 612 (1965) (K.S.A. 60-404 has a legitimate purpose for the appellate court, whose function is that of review rather than trial de novo.) Per the dissent’s rationale, one need only make generic relevancy objections at trial and then raise a myriad of specific, legally precise bases on appeal.
On a related point, the dissent suggests it needed no presentation to the trial court of the evidentiary based arguments that were raised for the first time on appeal: hearsay and Confrontation Clause, e.g., whether a statement was testimonial. The dissent implies the appellate court is in as good a position as the trial court to make these determinations. However, arguing the specific evidentiary bases at the trial court gives that court the opportunity to consider the evidence in light of these particular bases. Just as important, it gives the parties the opportunity to make their full record — on these bases — for appeal. Per the dissent’s rationale, an appellate court is placed in the difficult position of hearing brand new arguments based upon a record that most likely was not developed with those new arguments in mind.
Issue 2: Sufficient evidence supports McCaslin s convictions.
McCaslin argues that his murder and aggravated arson convictions were premised upon the rape conviction. He reasons that once the rape conviction fails for insufficient evidence, then the aggravated arson and murder convictions must also fail.
Our standard of review on this issue is well known:
“ “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ ” State v. Drayton, 285 Kan. 689, 710, 175 P.3d 861 (2008).
During our review, we do not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2004). Moreover, a conviction of even the gravest offense “ ‘can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom.’ ” Drayton, 285 Kan. at 711 (quoting State v. Bird, 240 Kan. 288, 299, 729 P.2d 1136 [1986], cert. denied 481 U.S. 1055 [1987]); State v. Garcia, 285 Kan. 1, 22, 169 P.3d 1069 (2007). If an infer ence is a reasonable one, the jury has the right to make the inference. Drayton, 285 Kan. at 711 (quoting State v. Ordway, 261 Kan. 776, 804, 934 P.2d 94 [1997]).
We address each conviction in turn.
Rape Conviction
Rape, as charged in this case, is defined as sexual intercourse with a person who does not consent to the sexual intercourse when the victim is overcome by force or fear. K.S.A. 21-3502(a)(l)(A). Sexual intercourse is “any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.” K.S.A. 21-3501(1).
McCaslin admitted to having sexual intercourse with A.D. He argues, however, that insufficient evidence was presented showing the intercourse was not consensual. The State responds that even without the testimony of A.D., sufficient evidence supported the jury’s verdict.
We agree that sufficient evidence existed for a rational jury to find McCaslin guilty of rape beyond a reasonable doubt. When viewing the evidence in the light most favorable to the prosecution, a jury could reasonably infer that McCaslin had sexual intercourse with A.D. and that it had been accomplished by force or fear.
First, sufficient evidence exists that A.D. was raped. Vaginal swabs revealed McCaslin’s DNA inside of her. She was found naked on a bed with her legs spread and hanging down. Coroner Johnson testified that this tableau contained a sexual component since a fire victim’s flexor muscles usually draw upwards, which produces a fetal-like position with raised legs. He therefore opined that something had been holding A.D.’s legs down. While there was no visible evidence of vaginal trauma, Johnson testified that unconscious or physically powerless victims suffering a sexual assault will not likely exhibit signs of injury. In addition to A.D.’s body position, the evidence showed that she was stabbed before her clothes were removed; her clothing was bloody, and her bra and shirt had been cut numerous times.
Second, sufficient evidence exists to establish that McCaslin was the rapist. As mentioned, vaginal swabs revealed McCaslin’s DNA was inside A.D. He admitted to having sexual intercourse with her. His jeans had unusual bloodstain patterns; blood was found on the inside rear waistband as well as around the ankles. The prosecutor argued that McCaslin could only get blood there from having his jeans around his ankles, probably while he pressed up against A.D.’s bleeding body, i.e., having intercourse.
First-degree Murder Conviction
Murder in the first degree is defined as the “killing of a human being committed intentionally and with premeditation.” K.S.A. 21-3401(a). The trial court instructed the jury that premeditation is “to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act.” This instruction is consistent with our jurisprudence. See State v. Jones, 279 Kan. 395, 402, 109 P.3d 1158 (2005) (citing State v. Scott, 271 Kan. 103, 108, 21 P.3d 516 [2001]) (defining premeditation as “the process of thinking about a proposed killing before engaging in the homicidal conduct”); PIK Crim. 3d 56.04(b).
McCaslin does not advance any substantive arguments specific to the murder conviction; rather, he reasserts the “house of cards” analogy. He contends that because the murder was allegedly committed to cover up the rape and since insufficient evidence supports the rape conviction, this court must reverse the murder conviction.
The State responds that McCaslin’s brief does not directly challenge the murder conviction and, thus, McCaslin abandoned this challenge. In support, the State cites State v. Gardner, 10 Kan. App. 2d 408, 701 P.2d 703, rev. denied 237 Kan. 888 (1985), and Brubaker v. Branine, 237 Kan. 488, 701 P.2d 929 (1985).
In Gardner, the defendant questioned the validity of a jail cell search but did not discuss the issue in his brief. The court noted that “[a]n issue which is not briefed is deemed abandoned.” 10 Kan. App. 2d at 413. In Brubaker, we refused to review a trial court’s action regarding contractual obligations because the challenging party did not raise the action as an issue on appeal. We noted that incidentally mentioning an issue in the brief was insufficient to preserve it for appeal.
McCaslin s brief accomplishes more than those in Gardner and Brubaker. An entire section is devoted to discussing the evidence produced at trial and the State’s theory on the interconnectivity between these crimes. Moreover, McCaslin specifically refers to each of the three convictions within this section. While the analysis is not in depth, it is sufficient to preserve the issue for our review.
We conclude that sufficient evidence existed for a rational juiy to find McCaslin guilty of first-degree murder beyond a reasonable doubt. When viewing the evidence in the light most favorable to the prosecution, a jury could reasonably infer that McCaslin had killed A.D. intentionally and with premeditation. Among other things, phone records and Aguilar’s testimony place McCaslin at or near A.D.’s house when she was killed. McCaslin admitted finding A.D.’s body in the bathroom and placing his arm on her to check for signs of fife. He testified that he either slipped or fell in the pool of her blood upon entering the bathroom. Nevertheless, the jury could reasonably infer that the presence of A.D.’s blood on the inside rear waistband of his jeans most likely would not have resulted from either of those innocent actions. Moreover, his testimony that he found her fully clothed on the floor of the bathroom could be characterized by a rational juiy as irreconcilable with the firefighters’ testimony that she had been found, essentially nude, on her bed. Similarly, his testimony that A.D. was dead when he found her in the bathroom before the fire could be characterized by a rational jury as irreconcilable with the coroner’s testimony that A.D. was alive, but wounded, when the fire was set because soot was in her lungs and stomach, indicating inhalation during the fire.
Additionally, after discovering A.D.’s body, McCaslin did not call 911. He instead took numerous steps to conceal his presence at the scene. He removed his bloody clothes, cleaned her blood from his body, changed into other clothes, and hid his bloody ones, plus his fighter, in a pillow sham, which he tiren hid in a nearby dumpster. When he got to his mother’s house he removed the second set of clothes, showered, changed into clean ones, and then hid the others in a bag. He then retrieved his original bloody clothes and fighter he had hidden in the dumpster near A.D.’s house and, together with the second set of clothes hidden in the bag, hid all in a different dumpster in a different town. That same day he also got rid of his pistol, ammunition, and drugs. See State v. Sanchez-Cazares, 276 Kan. 451, 459, 78 P.3d 55 (2003) (premeditation may be inferred by a defendant’s behavior before and after the killing).
Aggravated Arson Conviction
Arson is “knowingly, by means of fire or explosive: damaging any building or property which is a dwelling in which another person has any interest without the consent of such other person.” K.S.A. 21-3718(a)(l)(A). Aggravated arson is “arson, as defined in K.S.A. 21-3718 . .. committed upon a building or property in which there is a human being.” K.S.A. 21-3719(a)(l).
Similar to the murder conviction, McCaslin does not advance substantive arguments in his brief. Instead, he primarily contends that the aggravated arson conviction was premised on the rape conviction and must fail because the latter conviction was not supported by sufficient evidence. The State again contends that McCaslin insufficiently addresses this issue. We disagree with the State’s argument for the same reasons concerning the first-degree murder conviction.
We conclude that sufficient evidence existed for a rational jury to find McCaslin guilty of aggravated arson beyond a reasonable doubt. When viewing the evidence in the fight most favorable to the prosecution, a jury could reasonably infer that McCaslin had knowingly set fire to A.D.’s house, with her inside, without her consent.
When McCaslin left A.D.’s house for the final time the morning of her death, it was not visibly burning. He admitted he was a few blocks from her house when he received a ride from his father; phone records establish that his father had called him at 9:07 a.m. to arrange that ride. 911 was called approximately 2 hours later to report the fire. Lieutenant Hurd testified that when emergency crews responded the fire had already been burning for a long time because it had burned through the floor, the floor joists, and a wall. While no witnesses actually saw McCaslin fight the fire, he put a “Presto” brand lighter in the pillow sham with his bloody clothes, which he hid in the nearby dumpster as soon as he left the house. Finally, McCaslin claimed that A.D. was dead when he found her in the bathroom before the fire. But the coroner opined that she was alive, but wounded, when the fire was set.
Issue 3: The prosecutor did not commit reversible misconduct.
McCaslin alleges three separate instances of prosecutorial misconduct. First, he claims the prosecutor continually badgered him during cross-examination. Second, he alleges the prosecutors question regarding the opinion of A.D.’s friend, as addressed in Issue 1, was improper and resulted in a violation of his right to confrontation. Third, McCaslin claims the prosecutor’s statements during rebuttal closing argument were inflammatoiy and improper. The State denies that the prosecutor’s efforts constituted misconduct.
Our standard of review for allegations of prosecutorial misconduct is well established:
“Allegations of prosecutorial misconduct require a two-stép analysis. First, the appellate court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal. State v. Elnicki, 279 Kan. 47, 58, 105 P.3d 1222 (2005) (quoting State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 [2004]). We have applied the test to prosecutorial action in contexts beyond mere comment on the evidence. See State v. Swinney, 280 Kan. 768, 779, 127 P.3d 261 (2006) (citing cases).” State v. White, 284 Kan. 333, 337-38, 161 P.3d 208 (2007).
We have provided specific guidance on when to grant a new trial on this basis:
“In the second step of the two-step prosecutorial misconduct analysis, the appellate court considers three factors to determine whether a new trial should be granted: (1) whether the misconduct is gross and flagrant;-(2) whether the misconduct shows ill will on the prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial) have been met.” State v. Bryant, 285 Kan. 970, Syl. ¶ 2, 179 P.3d 1122 (2008).
We review each claim of misconduct in turn.
Badgering during cross-examination
McCaslin argues that the prosecutor badgered him during cross-examination. The State paints the episode as a fair cross-examination of a combative and uncooperative witness.
During trial, the prosecutor’s cross-examination of McCaslin developed into a heated exchange. The court took a recess to instruct the parties and witness on how to conduct the remainder of the examination.
McCaslin cites various portions of the examination, including the following:
“[PROSECUTOR:] Mr. McCaslin, there is blood on the back here which is on the rear of your pants on the inside. Is that a soak through, too, Mr. McCaslin?
“[MCCASLIN:] It looks like a soak through to me. How else would it get there?
“[PROSECUTOR:] Well, it would get there by you having your pants down around your waist and pressing your body up against a woman who is bleeding.
“[MCCASLIN:] No, you are wrong.
“[PROSECUTOR:] It wouldn’t?
“[MCCASLIN:] If I was pressing my body up against a woman, why would the blood stains be on the back of the pants—
“[PROSECUTOR:] Because the pants are—
“[MCCASLIN:] —on die inside?
“[PROSECUTOR:] Because the pants are down around your ankles, Mr. McCaslin, because you were raping her.
“[MCCASLIN:] Oh, is that right?
“[PROSECUTOR:] Well explain to us how it gets back there.
“[MCCASLIN:] I’ve already explained it to you.
“[PROSECUTOR:] You are a blood expert now?
“[MCCASLIN:] Are you?
“[DEFENSE ATTORNEY:] Your honor—
“[PROSECUTOR:] You act like—
“A. [MCCASLIN:] Well, you weren’t there. I was. How many bodies have you walked in on like that?
“Q. [PROSECUTOR:] Mr. McCaslin, you’ve walked in on more bodies like that than I have.
“[DEFENSE COUNSEL]-. Objection.
“[MCCASLIN:] Well, you are assuming that I have.
“[DEFENSE COUNSEL]: Objection, Your Honor.
“THE COURT: Well—
“[PROSECUTOR]: He’s already said he was there, Judge.
“THE COURT: Nonresponsive answer to the question. Let’s get back to the question/answer format.”
On at least two occasions, the prosecutor reminded McCaslin that the prosecutor, not McCaslin, was asking the questions on cross-examination. In partial response to McCaslin s allegations of prosecutorial misconduct, the State points out that McCaslin sua sponte attempted, on several occasions, to stand up and demonstrate events to the jury.
As evidenced by the following authorities, we conclude the prosecutor engaged in conduct inconsistent with a servant of the law and a representative of the people of Kansas, i.e., misconduct. See State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321(2000); State v. Bryant, 285 Kan. 970, 978-79, 179 P.3d 1122 (2008). While McCaslin was admittedly evasive and often combative in his answers, Kansas prosecutors are held to higher standards than criminal defendants. For example, while McCaslin admittedly asked the prosecutor how many bodies the prosecutor had walked in on like that, we see no valid reason, or evidentiary basis, for the prosecutor to respond that McCaslin has “walked in on more bodies like that than I have.” See Rule 3.4(e) of Supreme Court Rules Relating to Discipline of Attorneys (KRPC) (“A lawyer shall not ...(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.”) (2010 Kan. Ct. Annot. 552); State v. Tosh, 278 Kan. 83, 88, 91 P.3d 1204 (2004). Additionally, the prosecutor’s response appeared to suggest that McCaslin was a disreputable character and, perhaps, had even killed like this before.
In State v. King, 288 Kan. 333, 351, 204 P.3d 585 (2009), we stated: ‘When a prosecutor argues facts that are not in evidence, this court has consistently found that ‘the first prong of the prosecutorial misconduct test is met.’ ” See State v. Ly, 277 Kan. 386, Syl. ¶ 4, 85 P.3d 1200, cert. denied 541 U.S. 1090 (2004) (statement made in closing argument not supported by evidence at trial; court proceeded to second step in prosecutorial misconduct analysis: whether statement constituted plain error); State v. Gardner, 264 Kan. 95, 106-07, 955 P.2d 1199 (1998) (same).
In State v. Smith, 258 Kan. 321, 323-24, 904 P.2d 999 (1995), after noting Rule 3.4(e), we held that the prosecutor s reference to the Bible in his question during cross-examination of defendant was “clearly improper,” but not reversible, conduct. In Tosh, 278 Kan. at 86, we reviewed the prosecutor’s question during cross-examination of a defense witness: “ Well, we’ve rested our case, so we’ve proven that he raped his daughter, kidnapped his daughter and raped her again. You’re aware of that, right?’ ” Defense counsel objected. We held that “[although not directed to the jury, it was obviously an attempt to prejudice the defendant and constitutes prosecutorial misconduct.” 278 Kan. at 87.
Now that we have established the existence of prosecutorial misconduct, we proceed to step two of the analysis: whether the misconduct was of sufficient magnitude to require reversal and a new trial. White, 284 Kan. at 340; State v. Elnicki, 279 Kan. 47, 64, 105 P.3d 1222 (2005). We hold that the prosecutor’s conduct was gross and flagrant. While a close question, we hold that it was not motivated by the prosecutor’s ill will. We acknowledge he was dealing with a difficult witness and responding to questions asked by McCaslin. Indeed, during the hearing on the motion for new trial, the prosecutor admitted that “I’ve been doing this [prosecuting] for quite some time and there isn’t any more belligerent defendant that I’ve ever cross-examined than Mr. McCaslin.”
Whether this otherwise constituted reversible misconduct, i.e., after reviewing the amount of the evidence in light of the state and federal standards, as articulated in Tosh, will be discussed later in the opinion.
Violation of McCaslin’s right to confrontation
McCaslin also claims the prosecutor committed misconduct with a specific question asked during his cross-examination of McCaslin. As set forth in Issue 1, the prosecutor asked McCaslin, “Are you aware that [A.D.’s] friend said . . . she never would have had sex with you?” Defense counsel objected on the grounds of “stating facts not in evidence” and was overruled.
Borrowing its argument from the evidentiary context in Issue 1, the State asserts that McCaslin failed to preserve this misconduct claim for appeal. More particularly, the State appears to again argue that McCaslin improperly has changed his trial objection— stating facts not in evidence — to now argue confrontation as his basis. After carefully reviewing McCaslin’s brief, we conclude his purported change is not as straightforward as the change in Issue 1.
In King, 288 Kan. at 346-49, we held that a failure to timely and specifically object under K.S.A. 60-404 to a prosecutor’s questions that are truly evidentiary could not be disregarded even when the issue had been characterized by defendant as prosecutorial misconduct. However, here McCaslin did object at trial. Moreover, we conclude he has not changed his objection on appeal for the misconduct claim. According to his brief, “[T]he prosecutor introduced evidence of statements made by individuals who were not called to testify.” We acknowledge that after stating the prosecutor’s full question, McCaslin then mentioned a violation of his right to confront the witnesses against him. However, we do not interpret his argument to be that a confrontation violation now serves as the basis for his appellate objection; rather, the violation was the result of the evidence’s admission over his objection. While a close call, we hold that this prosecutorial misconduct claim is premised on the prosecutor’s “assuming facts not in evidence,” a basis which was not abandoned or changed on appeal. Accordingly, the issue of prosecutorial misconduct is preserved.
We begin our analysis on the merits by noting that the friend, or friends, were never identified, much less called to testily, contrary to KRPC Rule 3.4(e) (“A lawyer shall not ...(e) in trial, allude to any matter that . . . will not be supported by admissible evidence.”). See State v. Cravatt, 267 Kan. 314, 330, 979 P.2d 679 (1999) (A prosecutor “may not make assertions of fact in the form of questions to a witness absent a good faith basis for believing the asserted matters to be true.”).
We acknowledge the trial court’s overruling of McCaslin’s objection could have led the prosecutor to briefly forego providing the usual good-faith evidentiary basis for the question. While the prosecutor eventually alleged a good-faith basis in the hearing on McCaslin’s motion for new trial, the problem is the jury never heard a good-faith basis for his question. “By asking questions that have no basis in fact, the questioner can leave in the minds of the jurors all kinds of damaging and prejudicial but false or inadmissible facts, facts which can’t be adequately rebutted by witness’ testimony or instructions by the court.” State v. Holsinger, 124 Ariz. 18, 21, 601 P.2d 1054 (1979).
A prosecutor is not just an advocate. See Pabst, 268 Kan. at 510. As we stated in State v. Gonzales, 290 Kan. 747, 760, 234 P.3d 1 (2010):
“The prosecutor’s role in our criminal justice system is unique, and it carries concomitant responsibilities. The prosecutor is a representative of the government in an adversary criminal proceeding, which means he or she must be held to a standard not expected of attorneys who represent ‘ordinary’ parties to litigation.”
We went on to say in Gonzales: “The comments to KRPC 3.8, Comment [1] (2010 Kan. Ct. R. Annot. 565) make this explicit: ’A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.’ ” 290 Kan, at 761; see also Berger v. United States, 295 U.S. 78, 87-88, 55 S. Ct. 629, 79 L. Ed. 1314 (1934), overruled on other grounds Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960) (Because the prosecutor “is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence sufferf,] . . . [i]t is as much his duty is to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”). On a more fundamental, and critical, level, the prosecutor’s question also did not call for, and could not have engendered, a substantive response from McCaslin. The prosecutor himself essentially admitted that McCaslin could not respond:
“Q. [PROSECUTOR:] Are you aware that [A.D.’s friend] said — you would not be aware because it’s not in the police reports that she said she would never — she never would have had sex with you?” (Emphasis added.)
Despite admitting that McCaslin could not respond because McCaslin “would not be aware” that the friend said A.D. never would have had sex with him, the prosecutor nevertheless persisted in demanding a McCaslin response, i.e., “if he was aware.”
“[DEFENSE ATTORNEY]: Objection, Your Honor. He’s stating facts not in evidence.
“[PROSECUTOR:] I’m asking if he’s aware of that.” (Emphasis added.)
In short, the fact of McCaslin’s awareness could not be proven through McCaslin. And the prosecutor knew it. See ABA Standards for Criminal Justice: Prosecution Function and Defense Function, Standard 3-5.6(b) (3d. ed. 1993) (“A prosecutor should not knowingly and for the purpose of bringing inadmissible matter to the attention of the . . . jury . . . ask legally objectionable questions.”). Tosh again provides guidance. There, we reviewed the prosecutor’s questions during cross-examination of Tosh, which suggested the defendant had told his wife that he was guilty or was going to plead guilty. Citing KRPC 3.4(e), we found no good-faith basis for the questions because the State had never supplied a factual basis for them or argued there was one. Despite the lack of defense objection to the questions — which today King would find fatal — we held that the cross-examination of defendant was inflammatory, egregious, and prejudicial. In other words, it was prosecutorial misconduct. 278 Kan. at 89, 93.
For all of these reasons, we easily conclude the prosecuting attorney engaged in misconduct during this episode. We now proceed to step two of the analysis.
After reviewing the record, we simply are aware of no legitimate reason for this question by the prosecutor. The jurors were informed by the prosecutor, without evidence, that the rape and murder victim never would have had sex with McCaslin. The inference by the jury is clear: McCaslin’s testimony about consensual sex the morning of her death should not be believed. While the trial court’s overruling of McCaslin’s objection could have led the prosecutor to believe no good-faith basis for the question needed to be shown at that time, none was ever shown during trial. Moreover, the prosecutor’s reference to this purported evidence became particularly troubling when coupled with his acknowledgment that McCaslin would not be aware of its existence, i.e., it was impossible to prove through McCaslin. In this respect, the conduct could be considered worse than the prosecutor’s cross-examination of the defendant in Tosh. Accordingly, we agree with McCaslin that this question demonstrated ill will, lack of good faith, and was gross and flagrant. See Tosh, 278 Kan. at 93-95. Whether this otherwise constituted reversible conduct, i.e., after reviewing the amount of the evidence in light of the state and federal standards, will be discussed later in the opinion.
Prosecutors rebuttal remarles
Finally, McCaslin argues that the prosecutor inflamed the emotions and passions of the jury during his rebuttal remarks. The State responds that the arguments were within a prosecutor’s latitude.
As a fundamental rule in closing arguments, prosecutors must confine their comments to matters in evidence. State v. Richmond, 289 Kan. 419, 440-41, 212 P.3d 165 (2009) (citing State v. Baker, 281 Kan. 997, Syl. ¶ 11, 135 P.3d 1098 [2006]). However, a prosecutor is allowed considerable latitude in discussing the evidence and drawing reasonable inferences from that evidence. Richmond, 289 Kan. at 440-41; see also King, 288 Kan. at 352 (“ ‘Inherent in this wide latitude is the freedom to craft an argument that includes reasonable inferences based on the evidence.’ ”). We have held that a prosecutor is given wide latitude in the language and manner of presenting argument and may even use picturesque speech as long as he or she does not refer to facts not disclosed by the evidence. State v. Rodriguez, 269 Kan. 633, 643-45, 8 P.3d 712 (2000) (discussing cases referring to the “smoke and mirrors” analogy).
McCaslin complains two prosecutorial comments were improper. First, evidence showed that A.D.’s body was set ablaze after she was doused with citronella oil. When explaining why there was no citronella oil on McCaslin, the prosecutor argued to the jury:
“You’ve all maybe lit a barbecue. Did you get barbecue Hghting fluid on you when you are bghting a barbecue? No, it goes on the charcoal, and Angela Duran was his charcoal and he was through.”
Second, when explaining to the jury why there was no soot on McCaslin’s clothing, the prosecutor remarked:
“We’re not saying he hung around and cooked s’mores. We’re saying he lit the fire and left. The fire was burning. You would not have soot, you would not have ash, you wouldn’t have smoke at the time.”
The State responds that the prosecutor was merely discussing the evidence and drawing an analogy to explain it.
We acknowledge that the prosecutor’s statements served to explain two important factual issues in the case: why the accelerant used to set A.D. on fire was not found on McCaslin and why McCaslin’s clothing did not contain ash or soot if he was at the fire. We also recognize that both of these issues were raised in the defense’s closing argument, i.e., the materials’ absence indicated McCaslin’s innocence. This in turn caused the prosecutor to address them in rebuttal. The language chosen created an analogy easily understood by the jury and did not contain facts undisclosed by the evidence.
However, comparing a burning murder victim to the lit charcoal for barbecuing meat and for roasting marshmallows to make a cookout dessert falls short of qualifying the prosecutor as a paragon of professionalism. The reference which can imply roasting marshmallows over A.D.’s flaming body, while picturesque (see Rodriguez, 269 Kan. at 643), is particularly repugnant. We agree with McCaslin that these remarks not only constituted prosecutorial misconduct but also demonstrated ill will, lack of good faith, and were gross and flagrant. See Elnicki, 279 Kan. at 64.
Despite our disapproval of this language, we are not prepared to find reversible error, even when coupled with the prosecutor’s instances of misconduct during McCaslin’s cross-examination. When viewed against other evidence in the case, the prosecutor’s conduct did not deny McCaslin a fair trial. See Richmond, 289 Kan. at 444-45. We hold that the harmlessness standards are satisfied from both K.S.A. 60-261 (not inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967) (conclude beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial). See State v. White, 284 Kan. 333, 340, 161 P.3d 208 (2007).
For example, although reviewed under a different standard in Issue 2, much of the same evidence applies to the present analysis. After discovering A.D.’s body, McCaslin did not call 911. By his own admission, he instead took numerous steps to conceal his presence at the scene. That same day he also got rid of his pistol, ammunition, and drugs. McCaslin’s claim of innocence was additionally harmed by the location of A.D.’s blood on the inside of his jeans’ waistband, the condition and position of A.D.’s body, his DNA inside her, and the proximity in time between his now admitted presence at the scene and the house fire. Moreover, key parts of his testimony were irreconcilable with the testimony of both the coroner and the fire investigator after their independent reviews of A.D.’s body.
Issue 4: The fire department video was properly admitted.
Next, McCaslin argues that the trial court erred in admitting and playing for the jury an 8-minute fire department video that showed the department’s response to the 911 call. He claims it was irrelevant, cumulative, and more prejudicial than probative. The State responds the tape was correctly admitted.
The video, filmed by a fire recruit, begins as the fire engine is driving to A.D.’s house. Once the crew arrives, the video focuses primarily on the outside of the house and shows firefighters breaking windows, entering the house, and extinguishing the fire. The recruit never enters die house. When it shows smoke coming from the windows and vents, however, a portion of A.D.’s leg on the bed is visible for a matter of seconds.
Our review of this issue is well known:
“When a party challenges the admission or exclusion of evidence on appeal, the first inquiry is relevance. [Citation omitted.] Unless otherwise prohibited, all relevant evidence is admissible. [Citation omitted.] ‘Relevant evidence’ is ‘evidence having any tendency in reason to prove any material fact.’ [Citation omitted.]” State v. Walters, 284 Kan. 1, 8, 159 P.3d 174 (2007).
To establish relevance, there must be some logical connection between the asserted facts and the inference or result they are intended to establish. State v. Houston, 289 Kan. 252, 261, 213 P.3d 728 (2009); Richmond, 289 Kan. at 437.
“ ‘Once relevance is established, evidentiaiy rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question.’ [Citation omitted.]” Walters, 284 Kan. at 8.
Our review of McCaslin’s arguments is for abuse of judicial discretion. State v. Reid, 286 Kan. 494, 512, 186 P.3d 713 (2008) (reviewing for probativity; balancing probativity with prejudice); State v. Torres, 280 Kan. 309, 333, 121 P.3d 429 (2005) (reviewing for cumulative).
McCaslin claims the video is not relevant because watching firefighters respond to a fire, which is not in dispute, adds nothing to the jury’s knowledge and understanding of the charges filed. He contends that the video only served to inflame the passions and prejudice of the jury and showing A.D.’s burned body justified excluding the video.
The State responds that the video aided the jury in understanding the testimony of fire investigators. It contends that while A.D.’s body was visible, the extremely short duration and low visibility through the smoke negates the potential for undue prejudice.
Before trial, the district court watched the video and overruled the defense’s objection. Among other things, the judge stated the video was not unduly prejudicial:
“I think as to the issue of the portions of the video which depict the body,. . . the body is inside the house, the lighting in the house is darker than the outside. There is smoke in the way.
“Honestly had the parties not pointed out to me that’s what I was looking at when I saw the video, I would not have recognized that portion of the thigh as being part of any body at all, so I think in light of the photographs that the parties have agreed come in, the portion of the video which shows the thigh of the victim is not unduly prejudicial, nor unduly graphic.”
In State v. Parker, 277 Kan. 838, 89 P.3d 622 (2004), the jury was shown photographs and a video of the townhouse where the crime was committed. We determined that the “videotape of the townhouse was useful, but certainly not essential, for acquainting the jurors with the scene of the crime. Our case law, however, requires only usefulness.” 277 Kan. at 848. Similarly, in State v. Kunellis, 276 Kan. 461, 482, 78 P.3d 776 (2003), a police dashboard videotape was properly shown to the jury “to show that a violent automobile accident occurred” and it “confirmed aspects of the testimony of several key witnesses to the accident scene.”
We conclude that the video was relevant because it assisted the jury in understanding the testimony of multiple witnesses. It allowed the jurors to see smoke coming from the house; to see the fire damage, which helped jurors understand Lieutenant Hurd’s testimony that the fire burned for a long time; to see the disarray inside the house, which was later introduced in photographs; and to see the efforts taken to suppress the fire. While a portion of A.D.’s body was visible for 2-3 seconds, its appearance was not unduly prejudicial, especially in light of the numerous photographs of her body admitted without objection. Finally, although some of the same information was presented through Other evidence, the video also contained additional information; we hold it was not excessively cumulative. Accordingly, we conclude that the trial court did not abuse its discretion in admitting the video into evidence.
Issue 5: A photograph of the burned house was properly admitted.
McCaslin challenges the admission of State’s Exhibit 29, a photograph taken from inside the bedroom, which shows A.D.’s naked, burned body. He argues the photograph is unduly graphic and more prejudicial than probative. The State contends that this issue was not preserved for appeal because there was no contemporaneous objection during trial.
We explained the contemporaneous objection requirement in Issue 1. Moreover, when, as here, a pretrial motion to suppress evidence has been denied, “the moving party must object to the admission of the evidence at the time it is offered during trial to preserve the issue for appeal.” Houston, 289 Kan. 252, Syl. ¶ 10. In Houston, we referenced State v. Jones, 267 Kan. 627, 637, 984 P.2d 132 (1999):
“In Jones, the defendant argued that his counsel’s action at the beginning of trial to renew his previous motions to suppress was the equivalent of a timely interposed objection to evidence when it was offered later during trial. The court rejected this argument, [citation omitted], for ‘why nothing short of an objection at the time evidence is offered satisfied the requirement’ of a contemporaneous objection.” 289 Kan. at 270 (quoting Jones, 267 Kan. at 637).
The court denied McCaslin’s pretrial motion to exclude the fire department video and Exhibit 29. His counsel asked for and was granted a continuing objection specific to the fire department video, but requested no continuing objection for Exhibit 29. At trial, the prosecutor offered State’s Exhibits 7 through 48 into evidence at the same time, and the defense did not object. Furthermore, after their admission, Fire Investigator Higday discussed the contents of each photograph individually. When he arrived at Exhibit 29, the photograph of A.D.’s body, the prosecutor published it to the jury and discussed it, again without objection.
We conclude that McCaslin’s failure at trial to renew the objection contained in his pretrial motion to suppress violates the contemporaneous objection rule. The failure precludes our review of the admissibility of Exhibit 29.
Issue 6: Sufficient evidence supports the hard SO sentence.
McCaslin claims that insufficient evidence exists to support the two aggravating circumstances the trial court relied upon when imposing the hard 50 sentence: (1) he committed the crime in an especially heinous, atrocious, or cruel manner; and (2) he committed the crime in order to avoid or prevent a lawful arrest or prosecution. The State responds that considerable evidence supports the court’s determination.
Our standard of review for this issue is as follows:
“ ‘ “ ‘When a defendant challenges the sufficiency of evidence establishing the existence of an aggravating circumstance in a hard 50 sentencing proceeding, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence.’ ” ’ [Citation omitted.]” Reid, 286 Kan. at 524.
Hard 50 sentencing is authorized by K.S.A. 21-4635, “which requires the court to weigh evidence of any mitigating circumstances against evidence of any aggravating circumstances.” State v. Baker, 281 Kan. 997, 1018, 135 P.3d 1098 (2006). While the trial court found two of the aggravating circumstances identified in K.S.A. 21-4636, the court found no mitigating circumstances. And McCaslin asserts none on appeal.
When determining whether sufficient evidence exists to support the first aggravating circumstance, that McCaslin committed the crime in an especially heinous, atrocious, or cruel manner, we observe that the trial court cited evidence indicating A.D. was alive when the fire was set. It also cited evidence that she suffered before she died; that she was stabbed approximately 13 times, including a deep slash in her throat; and that her body was desecrated, which indicates “a particular depravity of the mind.” The trial court also found that the crime inflicted mental anguish or physical abuse before A.D. died.
We have held that “stab wounds inflicted to maim, torture, or inflict pain could constitute the aggravating circumstance.” State v. Johnson, 284 Kan. 18, 27, 159 P.3d 161 (2007), cert. denied 552 U.S. 1104 (2008) (citing State v. Follin, 263 Kan. 28, 51, 947 P.2d 8 [1997]). A.D.’s 13 stab wounds were similar in nature and location to those in Johnson, which involved the head, upper body, and forearms — including defensive wounds. A.D. was stabbed in her throat, upper torso, left and right breasts, left bicep, left forearm, upper back, and the back of her head. Some of her wounds were defensive. See State v. Hernandez, 284 Kan. 74, 107, 159 P.3d 590 (2007) (defensive stab wounds supported the aggravating circumstance because they indicated a violent attack and fear in the victim).
McCaslin argues that multiple stab wounds do not necessarily constitute evidence that mental anguish was inflicted, citing Follin. Primarily due to the location and nature of A.D.’s stab wounds, we disagree; we follow our analysis in Johnson, where we rejected a similar reliance on Follin:
“However, we perceive the Follin court was persuaded by the precise manner in which the wounds were inflicted into the heart while avoiding the ribs, so as to expedite death and minimize the preceding pain and suffering. In contrast, the nature and location of [the victim’s] multiple wounds suggest that they were re peatedly delivered in a random and forceful manner consistent with a desire to hurt the victim, rather than to effect a quick kill.” 284 Kan. at 28.
Even if the stab wounds alone were insufficient to support this aggravating circumstance, the events surrounding the fire demonstrate an especially heinous, atrocious, or cruel manner. After the repeated stabbings, A.D. was covered with citronella oil, a petroleum distillate, and set on fire while still alive. The circumstances of A.D.’s murder are clearly the type that K.S.A. 21-4636(f) contemplates. See State v. Flournoy, 272 Kan. 784, 793, 36 P.3d 273 (2001). In short, the standards of Reid have been met.
We also conclude there was sufficient evidence to establish under Reid the second aggravating circumstance: that McCaslin murdered A.D. in order to avoid or prevent a lawful arrest or prosecution. McCaslin admitted that he had sexual intercourse with A.D.; indeed, his DNA was inside her. Therefore, consent became a primary issue for the jury. As noted in Issue 2, sufficient evidence supports the rape conviction, e.g., the location and condition of A.D.’s body and her tom and cut clothing. In particular, the timing of her murder establishes, like McCaslin’s setting of the fire and disposing of his lighter and two sets of clothes, that the murder was just another one of his numerous steps of avoiding arrest.
In summary, both aggravating circumstances are supported by the evidence. Because McCaslin does not advance any mitigating factors to weigh against them, the trial court properly imposed the hard 50 pursuant to K.S.A. 21-4635.
Issue 7: The Kansas hard SO sentencing scheme is constitutional.
McCaslin next challenges Kansas’ hard 50 sentencing scheme. He cites Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 536 (2002), Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999). He argues the statute, K.S.A. 21-4635, is unconstitutional because it does not provide a criminal defendant the right to have a jury determine beyond a reasonable doubt all the facts that might increase the maximum penalty for first-degree murder. The State responds that we have rejected this argument previously.
We review constitutional questions de novo. State v. Kirtdoll, 281 Kan. 1138, 1151, 136 P.3d 417 (2006); State v. Oliver, 280 Kan. 681, 707, 124 P.3d 493 (2005).
As the State suggests, we have rejected this identical argument numerous times. See Richmond, 289 Kan. at 447; Reid, 286 Kan. at 526; Kirtdoll, 281 Kan. at 1151; Oliver, 280 Kan. at 708; State v. Engelhardt, 280 Kan. 113, 143, 119 P.3d 1148 (2005); State v. Wilkerson, 278 Kan. 147, 160, 91 P.3d 1181 (2004); State v. Hebert, 277 Kan. 61, 107-08, 82 P.3d 470 (2004). McCaslin has not advanced any reason for us to retreat from this position now, and we decline to do so.
Issue 8: We are without jurisdiction to review McCaslin’s challenge to the presumptive sentences.
McCaslin argues that the trial court’s imposition of the aggravated terms in the presumptive grid boxes for the sentencing on the rape and aggravated arson convictions violates the law established in Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007). McCaslin received 246 months’ imprisonment for the rape conviction and 61 months for the aggravated arson conviction, both of which are the aggravated terms in their respective sentence boxes. He claims these sentences violate Cunningham because it is impossible for a judge to impose the aggravated sentences without making findings of fact, which in turn is an unconstitutional act because the facts must be submitted to the juiy.
The State responds that McCaslin received presumptive sentences that this court has no jurisdiction to review, citing State v. Johnson, 286 Kan. 824, 840-42, 190 P.3d 207 (2008). We agree. There, we examined the Kansas Sentencing Guidelines Act in the wake of Apprendi and its progeny. We concluded that “K.S.A. 21-4704(e)(1) grants a judge discretion to sentence a criminal defendant to any term within the presumptive grid block, as determined by the conviction and the defendant’s criminal history.” Johnson, 286 Kan. at 851. Consequently, we held that “under K.S.A. 21-4721(c)(1), this court is without jurisdiction to consider [the defendant’s] challenge to his presumptive sentences even if those sentences are to the longest term in the presumptive grid block for his convictions.” 286 Kan. at 851-52; Houston, 289 Kan. at 278.
Issue 9: The trial court did not violate McCaslin s rights when it imposed enhanced consecutive sentences without submitting the enhancing factors, i.e., prior convictions, to the jury for proof beyond a reasonable doubt.
The trial court imposed consecutive sentences for McCaslin’s convictions of rape and aggravated arson and used his criminal histoiy to enhance both sentences. McCaslin claims a violation of his Sixth and Fourteenth Amendment rights under the United States Constitution because his prior criminal convictions had not been found beyond a reasonable doubt by the jury in the instant case. He contends the majority in Apprendi expressed reservations regarding the previous holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), and claims that “[a] majority of the United States Supreme Court has now indicated that prior convictions that increase the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” He cites Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005) (Thomas J., concurring in part). McCaslin also claims that in Johnson v. United States, 544 U.S. 295, 306, 152 S. Ct. 1571, 161 L. Ed. 2d 542 (2005), the Court rejected an argument that convictions are fundamentally different from other facts that can enhance a sentence. He asserts that in light of the holdings in Shepard and Johnson, both decided after State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), this court should reconsider its holding in Ivory.
The State argues there is no reason to overrule Ivory. In State v. Fewell, 286 Kan. 370, 184 P.3d 903 (2008), we analyzed an identical argument post -Shepard and Johnson. There, this court upheld the constitutionality of the Kansas Sentencing Guidelines Act, reaffirming this court’s holding in Ivory. 286 Kan. at 393-96. We reached a similar holding in State v. Brinklow, 288 Kan. 39, 54-55, 200 P.3d 1225 (2009). As we stated in State v. Gonzalez, 282 Kan. 73, 118, 145 P.3d 18 (2006):
“[E]ven if the defendant cited factual circumstances sufficient to distinguish his situation from that of the defendant in Ivory (which he does not), given that the United States Supreme Court has reaffirmed the Mmendarez-Torres exception three times in the last year, and given that United States Circuit Courts are reluctant to disturb this rule despite some disapproving language in concurring opinions, Ivory’s holding remains good law.”
McCaslin has not advanced any reason for us to retreat from this position, and we decline to do so. The imposition of enhanced consecutive sentences was proper.
Issue 10: McCaslin was not deprived of his right to a fair trial by cumulative error.
Finally, McCaslin argues that cumulative error denied him a fair trial, requiring reversal of his convictions and remand for a new trial. The State responds no error was committed; but if so, any accumulation did not deny McCaslin a fair trial.
Cumulative error requires reversal when the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. State v. Sharp, 289 Kan. 72, 106, 210 P.3d 590 (2009). We have often held that reversal is not required if the evidence is overwhelming against the defendant. Reid, 286 Kan. at 523-24.
In Issue 3, we disapproved of several instances of the prosecutor’s conduct in the trial. We ultimately concluded, however, that his misconduct alone was of insufficient magnitude to grant a new trial in light of the evidence in the case. Because we found no other errors, we logically reject McCaslin’s request for a new trial.
Affirmed. | [
-48,
-24,
-23,
-98,
25,
-31,
106,
92,
66,
-73,
-16,
83,
41,
-56,
1,
107,
-70,
121,
-59,
105,
-63,
-73,
7,
65,
-90,
-13,
83,
-44,
48,
90,
-4,
-35,
72,
96,
-54,
85,
-90,
74,
85,
84,
-114,
15,
-40,
-47,
92,
75,
38,
122,
114,
11,
49,
30,
-5,
43,
20,
-62,
-55,
44,
75,
-81,
73,
49,
107,
13,
95,
16,
-95,
0,
-106,
-121,
120,
62,
-40,
61,
2,
-20,
115,
-122,
-122,
53,
75,
-87,
-92,
39,
99,
33,
29,
-19,
105,
-119,
47,
20,
-76,
39,
24,
73,
75,
44,
-105,
-35,
108,
116,
13,
112,
102,
-36,
125,
108,
-123,
-57,
-112,
-103,
-53,
36,
22,
-72,
-13,
37,
-96,
97,
-35,
-30,
84,
71,
88,
91,
-118,
-42
] |
The opinion of the court was delivered by
Biles, J.:
Isaac Duncan seeks review of a Court of Appeals decision affirming his upward durational departure sentence ordered after a plea agreement. He argues the departure sentence is illegal because the trial court did not empanel a jury to determine whether aggravating factors existed to justify the upward departure as required by K.S.A. 21-4718 and Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The issue is whether Duncan waived the right to have a jury make this de termination. The Court of Appeals held Duncan waived this right during the plea hearing, even though he was never informed that he had a right to a jury determination on this issue. We disagree with the Court of Appeals panel. We find Duncan did not make a constitutionally valid waiver because he was not informed of this right in the plea agreement or at the plea hearing. We reverse the Court of Appeals and the district court, vacate Duncan’s sentence, and remand the case to the district court for resentencing without an upward durational departure.
Factual and Procedural Background
In 2004, Duncan severely beat another bar patron. He was charged with aggravated battery, a severity level 4 offense. After Duncan entered into a plea agreement, the State reduced the charge to a severity level 7 offense to which he pleaded guilty. Duncan had a criminal history score of A, which meant his conviction of the severity level 7 offense would have fallen in block 7-A on the nondrug sentencing guideline grid. The presumptive sentencing range for this block is 34-32-30 months’ imprisonment. K.S.A. 2003 Supp. 21-4704.
But the plea agreement was based upon a different recommended sentence. Duncan agreed to an underlying upward durational departure to 48 months’ imprisonment in exchange for a downward dispositional departure to probation. The terms of the plea agreement did not explicitly state Duncan was waiving his right to have a juiy determine whether any aggravating factors existed to permit an upward durational departure. The plea agreement contained the following two waivers regarding jury determinations:
“I have a right to a trial where my guilt or innocence on all of the criminal charges against me would be determined by a jury, or if I choose to waive a jury, by a judge.
“At such trial it would be the burden of the State of Kansas to prove my guilt beyond a reasonable doubt on each element of the charge(s) against me before I could be found guilty.”
At the plea hearing, the district court informed Duncan that by pleading guilty he was relinquishing the following rights: (1) his right to a trial; (2) his right to raise any defenses to the charge; (3) his right to have the State prove each offense; (4) his right to compel witness testimony; and (5) his right to testify in his own defense. Regarding sentencing, the district court informed him of the potential sentence and that the court was not bound by the agreement. The district court did not state Duncan had a right to a jury determination of the aggravating factors to justify an upward durational departure sentence.
The district court imposed both of the previously agreed-to departure sentences. It held the upward departure recommended in the plea agreement was justified because Duncan’s sentence was already significantly reduced by the bargained-for amendment to the charge, making it a severity level 7 offense instead of a severity level 4 offense.
The waiver challenge arose later after Duncan’s probation was revoked and he was ordered to serve the 48-month sentence. Duncan timely appealed the probation revocation to the Court of Appeals, challenging whether the previously agreed-to upward durational departure was legal because he did not explicitly waive his right to have a jury determine whether there were aggravating factors to invoke that departure. The panel held Duncan waived this right but did so without distinguishing between Duncan’s explicit waiver of his right to have a juiy find him guilty as charged beyond a reasonable doubt and the separate right identified in Apprendi to have a jury find the aggravating factors upon which an upward durational departure could be based. State v. Duncan, No. 99,463, unpublished opinion filed February 13, 2009, slip op. at 2-3. The panel simply held:
“[A]t Duncan’s plea hearing, the trial court notified Duncan of his right to a juiy trial and determined that Duncan knowingly, willingly, and voluntarily waived his rights, including his right to a jury. At that hearing, Duncan agreed to the recommended upward durational departure sentence of 48 months. Duncan waived his right to have a jury find aggravatingfactors beyond a reasonable doubt during the plea hearing, and Duncan’s sentence is, therefore, not illegal. The trial court did not err in sentencing Duncan to the agreed upon 48-month sentence when it revoked Duncan’s probation.” (Emphasis added.) Slip op. at 3.
The panel dismissed two remaining issues because Duncan failed to timely appeal the initial sentencing orders. Slip op. at 4-5.
Duncan petitioned this court for review, which was granted on the sole issue of whether Duncan waived his right to a jury determination of the aggravating sentencing factors. Jurisdiction is proper under K.S.A. 20-3018(b) (review of a Court of Appeals decision).
Analysis
Standard of Review
We must determine whether Duncan waived his right to have a juiy make the determination of the aggravating factors required to support the 48-month upward durational departure sentence. When the facts are undisputed, whether a defendant knowingly and voluntarily waived his right to a jury trial is a question of law subject to unlimited review. See State v. Kirtdoll, 281 Kan. 1138, 1144, 136 P.3d 417 (2006) (holding that factual underpinnings are reviewed for substantial competent evidence, but the ultimate question of a Miranda waiver s voluntariness is a question of law subject to de novo review); see also State v. Carter, 278 Kan. 74, 77-78, 91 P.3d 1162 (2004) (holding a challenge to the Confrontation Clause is reviewed de novo when the facts are undisputed); State v. Sykes, 35 Kan. App. 2d 517, 522-23, 132 P.3d 485, rev. denied 282 Kan. 795 (2006) (whether a defendant knowingly and voluntarily waived the right to a juiy trial is reviewed de novo when facts are undisputed).
Jurisdiction
Before reaching the merits of the issue, we must consider the State’s challenge to this court’s jurisdiction to consider Duncan’s appeal. The State first argues that state law bars review of “any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.” K.S.A. 21-4721(c)(2). But this court has stated in dicta that “[w]here K.S.A. 21-4721 applies, an appellate court’s jurisdiction to consider a challenge to a sentence is limited to those grounds authorized by the statute or a claim that the sentence is otherwise illegal.” (Emphasis added.) State v. Ware, 262 Kan. 180, Syl. ¶ 2, 938 P.2d 197 (1997). In addition, the Court of Appeals has held that sentences resulting from a plea agreement can be appealed if they are illegal. See, e.g., State v. Boswell, 30 Kan. App. 2d 9, 11, 37 P.3d 40 (2001). We have cited those decisions with approval. See State v. Santos-Garza, 276 Kan. 27, 31-32, 72 P.3d 560 (2003); State v. Cullen, 275 Kan. 56, 58-60, 60 P.3d 933 (2003).
The State further argues Duncan’s sentence is not illegal because K.S.A. 21-4718 is not an illegal sentencing scheme, citing Cullen. In Cullen, this court held the previous departure sentence statute, K.S.A. 2001 Supp. 21-4716(a), was unconstitutional on its face because it allowed the trial judge to impose an upward departure sentence without empanelling a jury to determine whether any substantial and compelling reasons support a departure. 275 Kan. at 61. Our decision was based on Apprendi, which held that any factor used to enhance a sentence beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 490. To comply with Apprendi, the Kansas Legislature enacted K.S.A. 21-4718. See L. 2002, ch. 170, sec. 2 (b); Cullen, 275 Kan. at 61.
As the State points out, the statute is now constitutional in this respect, but that has no bearing on the issue in this case, i.e., whether Duncan waived the right to have a jury determine whether aggravating factors existed to support an upward durational departure sentence. The State’s arguments are without merit. We find this court has jurisdiction to review a sentence that is challenged as being illegal.
Jury Trial Waiver
Turning now to the waiver challenge, it must be acknowledged that Duncan has a right to have a jury determine whether aggravating factors exist before the sentencing court may order an upward durational departure sentence. This right was originally established in Apprendi and then codified in K.S.A. 21-4718(b). But it also is undisputed that a defendant can waive this right. K.S.A. 21-4718(b)(4) states the trial judge may conduct the upward departure sentence proceeding — if the right to a jury is waived in the manner required by K.S.A. 22-3403. This provision is consistent with the United States Supreme Court’s decision recognizing a defendant may waive the right to have a jury determine the upward departure factors. Blakely v. Washington, 542 U.S. 296, 310, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004); see State v. Horn, 291 Kan. 1, Syl. ¶¶ 2-4, 238 P.3d 238 (2010). The question is whether Duncan waived his right to have a jury determine the aggravating sentencing factors that were a necessary element to find before imposing an upward durational departure of 48 months.
In other contexts, we have held that to be constitutionally valid, a waiver of rights in guilty or no contest pleas must be voluntary, knowing, and intelligent acts performed with sufficient knowledge of the relevant circumstances and likely consequences. State v. Shopteese, 283 Kan. 331, 340-41, 153 P.3d 1208 (2007). Recently, this court held that to satisfy the Due Process Clause a waiver must be an intentional abandonment or relinquishment of a known right or privilege. State v. Copes, 290 Kan. 209, 218, 224 P.3d 571 (2010). As such, to waive the right to a jury in an upward durational departure proceeding, the defendant must do more than consent to the sentence. See Horn, slip op at 12-13. Duncan needed to understand — and the record needs to demonstrate — -what specific right or rights he was waiving. An examination of the plea hearing proceedings relied upon by the Court of Appeals, as well as the written plea agreement, are required to determine whether the waiver satisfied these criteria.
At the plea hearing, the district court informed Duncan he was relinquishing his right to a trial on his guilt, his right to raise any defenses to the charge, his right to have the State prove each offense, his right to compel and cross-examine witness testimony, and his right to testify in his own defense. Regarding sentencing, the district court informed him of the potential range of sentences that could be imposed and that the court was not bound by the plea agreement and could impose any legal sentence deemed appropriate. But the district court did not advise Duncan that he had a right to a jury determination of the aggravating sentencing factors.
Similarly, the written plea agreement only informed Duncan of his right to have his guilt or innocence determined by a jury and the requirement that the State prove his guilt beyond a reasonable doubt on each element of the charge. Neither of these provisions informed Duncan he had a right to a juiy determination of the aggravating sentencing factors. Indeed, under even the most generous reading of the plea agreement, at best, suggests it is ambiguous as to whether the defendant was waiving both the jury determination of guilt and the jury determination of aggravating factors. But if we were to find such ambiguity, it would not matter. This court interprets plea agreements under the same standard applied to ambiguous statutes, so that any uncertain language is strictly construed in the defendant’s favor. State v. Patton, 287 Kan. 200, 228, 195 P.3d 753 (2008). Under this standard, the plea agreement’s language would not be enough to constitute a waiver as written.
In Horn, we held that “[a] waiver of the trial juiy, standing alone, does not effectively waive the defendant’s right to have a juiy for the upward durational departure sentence proceeding.” Slip op. at 13. Applying Horn to this case, we find Duncan did not malee a constitutionally valid waiver of his right to a jury determination of the aggravating sentencing factors.
We also held in Horn that K.S.A. 21-4718(b)(4) does not permit the district court to empanel a juiy solely for the purpose of conducting upward durational departure proceedings when the defendant has pleaded guilty or no contest. Slip op. at 13-14. Accordingly, in Horn we found that the failure to obtain a constitutionally valid waiver of a defendant’s right to a jury determination of the aggravating factors necessarily precluded the district court from conducting the upward durational departure proceeding. Slip op. at 13 (“[I]f the defendant has not waived his or her right to a juiy for the upward durational departure sentence proceeding, a court-ordered departure proceeding violates ... constitutional mandates . . . .”). Further applying Horn to this case, we find Duncan’s sentence must be vacated and the case remanded to the district court for resentencing without an upward durational departure because the statute does not permit the district court to empanel a juiy solely to consider Duncan’s aggravating factors.
We reverse the Court of Appeals and the district court on the issue subject to our review, Duncan’s sentence is vacated, and case is remanded to the district court with directions for resentencing.
Davis, C.J, not participating.
Michael F. Powers, District Judge, assigned. | [
16,
-24,
-35,
63,
56,
-32,
42,
-104,
113,
-105,
39,
83,
-27,
-36,
5,
122,
-7,
111,
84,
105,
-36,
-73,
39,
-15,
-78,
-13,
-47,
-48,
51,
-54,
-12,
-3,
8,
-16,
66,
-43,
102,
-54,
-5,
84,
-118,
37,
-71,
-63,
120,
10,
48,
23,
20,
15,
53,
-100,
-77,
44,
24,
-54,
-56,
57,
27,
127,
80,
-103,
-97,
-113,
-17,
0,
-77,
36,
-34,
-90,
124,
126,
24,
56,
33,
-24,
115,
-106,
-126,
20,
111,
-101,
-84,
102,
98,
-127,
85,
101,
-68,
-95,
47,
62,
-99,
-89,
-39,
89,
75,
68,
-100,
-35,
126,
22,
-82,
-2,
-18,
4,
29,
108,
2,
-114,
-104,
-77,
-113,
117,
14,
9,
-5,
1,
0,
97,
-50,
-96,
76,
54,
123,
-41,
62,
-98
] |
Per Curiam.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Bobby Lee Thomas, Jr., of Olathe, Kansas, an attorney admitted to the practice of law in Kansas in 2000.
On October 16, 2009, 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 to the formal complaint on October 29, 2009. The respondent and the office of the Disciplinary Administrator entered into a stipulation of certain facts and violations on December 10, 2009. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on December 15, 2009, where the respondent was personally present. The hearing panel determined that respondent violated KRPC 1.2 (2009 Kan. Ct. R. Annot. 421) (scope of representation); 1.3 (2009 Kan. Ct. R. Annot. 426) (diligence); 1.4(a) (2009 Kan. Ct. R. Annot. 443) (communication); 1.5(a) (2009 Kan. Ct. R. Annot. 460) (fees); 1.5(d) (2009 Kan. Ct. R. Annot. 460) (contingent fees); 1.15(b) (2009 Kan. Ct. R. Annot. 507) (safekeeping property); 1.16(d) (2009 Kan. Ct. R. Annot. 522) (terminating representation); 8.1(b) (2009 Kan. Ct. R. Annot. 594) (failing to respond to disciplinary authority); Kansas Supreme Court Rule 207(b) (2009 Kan. Ct. R. Annot. 303) (failure to cooperate in disciplinary investigation); and Kansas Supreme Court Rule 218(a) (2009 Kan. Ct. R. Annot. 361) (failure to notify clients upon suspension). 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
“2. On October 17, 2008, the Kansas Supreme Court suspended the Respondent’s license to practice law for a period of six months. The Respondent has not sought reinstatement. As a result, the Respondent’s license remains suspended.
“DA10273: [M.H.]
“3. In the Spring of 2006, [M.H.] retained the Respondent to file suit in her behalf as a result of a car accident. The Respondent entered into an oral contingency fee agreement that the Respondent would receive a 30% fee prior to trial and a 40% fee if the Respondent prevailed at trial in behalf of [M.H.]. The contingency fee agreement was not reduced to writing.
“4. The Respondent failed to properly answer discovery. As a result, opposing counsel filed a motion to enforce discoveiy in [M.H.]’s case. The Respondent failed to appear at the hearing on the motion to enforce discovery.
“5. Despite the fact that the Respondent failed to appear at the hearing, the Court extended the time for the Respondent to comply with the discovery requests. The Respondent, however, failed to provide answers to the discovery within the extended time period.
“6. On December 11, 2006, because the Respondent failed to comply with discovery, the Court dismissed the case without prejudice.
“7. On December 14, 2006, the Respondent refiled the action. However, the Respondent did not obtain service of process on the defendant. Thereafter, on November 13, 2007, the Court dismissed [M.H.]’s second case.
“8. [M.H.] filed a complaint against the Respondent with the Disciplinary Administrator. On August 8, 2007, the Disciplinary Administrator directed the Respondent to provide a written response to the complaint filed by [M.H.]. The Respondent did not provide a written response to the complaint.
“9. On August 20, 2007, Terry Morgan, Special Investigator for the Disciplinaiy Administrator wrote to the Respondent and directed him to provide a written response to the complaint filed by [M.H.]. Again, the Respondent did not provide a written response to the complaint.
“10. Thereafter, Mr. Morgan attempted to contact the Respondent on a number of occasions, to no avail. Eventually, on December 20,2007, the Respondent provided a written response to the complaint.
“11. In a written stipulation, the Respondent admitted that he violated KRPC 1.3, KRPC 1.4, KRPC 1.5, and Kan. Sup. Ct. R. 207, in relation to [M.H.]’s complaint.
“DA10297: [D.G.]
“12. In July, 2007, [D.G.] retained the Respondent to appeal a driving under the influence conviction to the Kansas Court of Appeals. [D.G.] also retained the Respondent to represent him in a pending driving under the influence of alcohol charge.
“13. On December 7, 2006, the Respondent filed [D.G.’s] brief. Thereafter, the Kansas Court of Appeals issued an order that oral arguments would be held on July 10, 2007.
“14. On July 10, 2007, the Respondent failed to appear at the arguments. On July 12, 2007, Are Respondent filed a motion to waive oral arguments without [D.G.’s] permission. In the motion, the Respondent asserted that he was recovering from back surgery.
“15. In the pending driving under the influence of alcohol charge, the Respondent failed to timely submit an administrative hearing request.
“16. [D.G.] filed a complaint against the Respondent with the Disciplinary Administrator.
“17. On August 31, 2007, the Disciplinary Administrator wrote to the Respondent, directing the Respondent to provide a written response to the complaint filed by [D.G.] within 10 days. The Respondent failed to provide a written response as directed by the Disciplinary Administrator.
“18. On September 24, 2007, Mr. Morgan wrote to the Respondent directing the Respondent to provide a written response to the complaint filed by [D.G.]. The Respondent failed to provide a written response to [D.G.’s] complaint.
“19. The Respondent has stipulated that he violated KRPC 1.2, KRPC 1.3, KRPC 8.1, and Kan. Sup. Ct. R. 207, in regard to [D.G.’s] complaint.
“DA10584: [G.L.]
“20. [G.L.]’s parents retained the Respondent to represent [G.L.] in two pending matters. [G.L.]’s parents paid the Respondent a $10,000 fee.
“21. Throughout the period of the representation, the Respondent failed to adequately communicate with [G.L.] personally or through his parents. Because the Respondent failed to provide adequate communication, the Respondent’s representation was terminated.
“22. Upon termination, the Respondent failed to provide [G.L.] or his parents with an accounting of the fee. Additionally, the Respondent failed to refund the unearned fees. Given the amount of work the Respondent completed, a fee of $10,000 is unreasonable.
“23. [G.L.]’s father filed a complaint against the Respondent. Thereafter, Gregory D. Kincaid was appointed to investigate [G.L.]’s father’s complaint. On September 4, 2008, Mr. Kincaid directed the Respondent to call him to schedule a time to meet regarding the complaint.
“24. Later, the Respondent requested additional time to file a response to the complaint. Mr. Kincaid granted the Respondent’s request for additional time. The Respondent, however, did not provide a written response within the time extended by Mr. Kincaid.
“25. Finally, on February 23, 2009, the Respondent provided a written response to [G.L.]’s father’s complaint.
“26. As a result of the Respondent’s misconduct, the Client Protection Fund paid [G.L.J’s parents $10,000.
“27. The Respondent has stipulated that he violated KRPC 1.4, KRPC 1.5, KRPC 1.15, KRPC 1.16, KRPC 8.1, and Kan. Sup. Ct. R. 207, regarding his representation of [G.L.].
“DA10617: [T.B-P]
“28. [T.B-P] retained the Respondent to represent her in a direct appeal of her conviction for murder in the first degree. The Respondent represented her and provided her with adequate representation. Later, [T.B-P] retained the Respondent to file a motion pursuant to K.S.A. 60-1507.
“29. On March 9, 2007, [T.B-P] filed a complaint against the Respondent with the Disciplinaiy Administrator. Misconduct related to [T.B-P]’s 2007 complaint served as part of the misconduct which led to the Respondent’s October, 2008, suspension from the practice of law.
“30. Later, in 2008, but prior to the Respondent’s suspension, [T.B-P] filed a second complaint against the Respondent. In her second complaint, [T.B-P] alleged that the Respondent failed to adequately communicate with her regarding the K.S.A. 60-1507 motion.
“31. Mr. Kincaid was also appointed to investigate [T.B-P]’s second complaint against the Respondent. On October 15, 2008, Mr. Kincaid wrote to the Respondent and directed him to call and schedule a time to discuss the complaint.
“32. Approximately a month later, the Respondent wrote to Mr. Kincaid and requested additional time to provide a written response to [T.B-P]’s second complaint. The Respondent assured Mr. Kincaid that he would provide the response by November 23, 2008. The Respondent failed to provide the written response as promised.
“33. Finally, on February 23, 2009, the Respondent provided a written response to the second complaint filed by [T.B-P],
“34. The Respondent stipulated that he violated KRPC 8.1 and Kan. Sup. Ct. R. 207 by failing to timely cooperate in the disciplinary investigation of [T.B-P]’s second complaint.
“DA10683: [D.C.]
“35. The Respondent represented [D.C.], [D.C.] filed a complaint against the Respondent with the Disciplinary Administrator. Mr. Kincaid was again appointed to investigate the complaint.
“36. On December 11, 2008, the Disciplinary Administrator sent a letter to the Respondent directing him to provide a written response to the complaint within 20 days. The Respondent did not provide a written response to the complaint as directed.
“37. On December 18, 2008, Mr. Kincaid wrote to the Respondent and directed him to call and schedule a time to discuss the complaint filed by [D.C.]. The Respondent did not respond to Mr. Kincaid’s letter.
“38. Finally, on April 21, 2009, the Respondent provided a written response to the complaint filed by [D.C.].
“39. The Respondent has stipulated that he violated KRPC 8.1 and Kan. Sup. Ct. R. 207, during the investigation of [D.C.]’s complaint.
“DA10689: [A.Z.]
“40. In October, 2008, [A.Z.] retained the Respondent to represent him in a pending criminal case. [A.Z.] agreed to pay the Respondent a $3,000 flat fee. [A.Z.] initially paid the Respondent $1,500 of the flat fee.
“41. The Court held [A.Z.J’s first appearance on October 17, 2008, the same day the Respondent’s license to practice law was suspended. The Respondent was unable to appear at the hearing because of the suspension of his license.
“42. The Respondent refused to refund the unearned fee paid by [A.Z.].
“43. [A.Z.] filed a complaint against the Respondent with the Disciplinary Administrator. On December 19, 2008, the Disciplinary Administrator wrote to the Respondent and directed him to provide a written response to the [A.Z.]’s complaint within 20 days. The Respondent failed to provide a written response to [A.Z.]’s complaint as directed.
“44. Eventually, on April 27, 2009, the Respondent provided a written response to [A.Z.]’s complaint.
“45. The Respondent has stipulated that he violated KRPC 1.16, KRPC 8.1, and Kan. Sup. Ct. R. 207, with regard to [A.Z.]’s complaint.
“DA10695: [T.M.]
“46. In May, 2008, [L.M.] retained the Respondent in behalf of his son, [T.M.], to research an issue related to [T.M.]’s federal criminal sentence. [L.M.] paid the Respondent $750 for the representation. After being retained, the Respondent failed to provide diligent representation and adequate communication. Given the amount of work the Respondent completed, a $750 fee is unreasonable.
“47. Following the Respondent’s suspension from the practice of law, the Respondent failed to inform [T.M.] or [L.M.] that he was no longer able to practice law.
“48. [L.M.] learned of the Respondent’s suspension by searching the Internet. After learning of the Respondent’s suspension, [T.M.] filed a complaint against the Respondent with the Disciplinary Administrator. On January 16, 2009, the Disciplinary Administrator wrote to the Respondent directing him to provide a written response within 20 days. The Respondent failed to provide a timely written response.
“49. Mr. Kincaid was also appointed to investigate [T.M.]’s complaint. On January 26, 2009, Mr. Kincaid wrote to the Respondent directing him to make contact within the next 10 days. The Respondent failed to contact Mr. Kincaid as directed.
“50. Finally, on May 22, 2009, the Respondent provided a written response to the complaint filed by [T.M.].
“51. The Respondent has stipulated that he violated KRPC 1.5, KRPC 1.16, KRPC 8.1, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 218, regarding [T.M.]’s complaint.
“DA10699: [B.B.]
“52. In August, 2008, [B.B.] retained the Respondent to represent him in a pending criminal case. [B.B.] agreed to pay the Respondent $5,000. Initially, [B.B.] paid $2,500 and agreed to pay the remaining $2,500 in 60 days.
“53. Because the Respondent’s license to practice law in the State of Kansas was suspended, he was unable to complete [B.B.’s] representation.
“54. On October 27, 2008, [B.B.] sent the Respondent an electronic mail message. [B.B.] received a form response from the Respondent which stated:
T regret to inform you that due to circumstances beyond my control I will not be practicing law for the next six months. If you are a client, I will be making arrangements for your future representation. I apologize deeply for any inconvenience that this has caused you. I will be in contact with you soon with more information.’
The Respondent did not notify [B.B.], by letter, that his license was suspended nor did he provide [B.B.] with more information.
“55. The Respondent failed to provide an accounting of the fee to [B.B.], Additionally, the Respondent failed to refund the unearned fees to [B.B.].
“56. [B.B.] filed a complaint against the Respondent with the Disciplinary Administrator. On January 16, 2008, the Disciplinary Administrator wrote to the Respondent and directed him to provide a written response to the complaint within 20 days. The Respondent failed to provide a timely response to [B.B.’s] complaint.
“57. On April 27, 2009, the Respondent finally provided a written response to [B.B.’s] complaint.
“58. The Respondent has stipulated that he violated KRPC 1.15, KRPC 1.16, KRPC 8.1, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 218, relating to [B.B.’s] complaint.
“DA10730: [M.T.]
“59. [M.T.J’s family retained the Respondent to represent [M.T.] in an appeal of a criminal conviction to the Kansas Court of Appeals. The appeal was unsuccessful.
“60. Later, the Respondent suggested that he might be able to obtain relief by filing an action in federal court or by filing a petition for review before the Kansas Supreme Court. [M.T.]’s mother and step-father, [P.R.] and [J.R.] paid the Respondent $5,000 to file a federal court action or a petition for review before the Kansas Supreme Court.
“61. During the period of representation, the Respondent failed to provide diligent representation and adequate communication.
“62. Thereafter, the Respondent was unable to complete the representation because of his suspension from the practice of law. Following his suspension, the Respondent did not provide [P.R.] and [J.R.] with an accounting of the fees paid, nor did the Respondent refund unearned fees. The Respondent’s fee was unreasonable, given the amount of work that he completed.
“63. The Respondent has stipulated that he violated KRPC 1.3, KRPC 1.4, KRPC 1.5, and KRPC 1.16, in connection with his representation of [M.T.].
“DA10743: [R.D.]
“64. In 2008, [R.D.] retained the Respondent to represent him in a criminal non-support case. [R.D.] paid the Respondent $1,500 for the representation.
“65. On October 28, 2008, the Respondent notified [R.D.] in writing that he was unable to continue to represent him.
“66. Thereafter, [R.D.] wrote to the Respondent twice requesting an accounting and a refund of unearned fees. The Respondent failed to provide an accounting of the fee. Additionally, the Respondent failed to provide a refund of the unearned fees. Eventually, the Client Protection Fund reimbursed [R.D.] for the $1,500 that he had previously paid to the Respondent.
“67. The Respondent has stipulated that he violated KRPC 1.15 in his representation of [R.D.].
“DA10746: [D.H.]
“68. Following [C.J.]’s entry of a guilty plea, [D.H.] retained the Respondent in behalf of [C.J.]. [D.H.] retained the Respondent to investigate the possibility of filing a motion to withdraw the guilty plea. If the motion was unsuccessful, then the Respondent was to take a direct appeal of [C.J.]’s conviction.
“69. [D.H.] agreed to pay the Respondent $1,800. [D.H.] was not able to pay the entire amount at once. However, over time, [D.H.] paid the Respondent over $1,000. By the time [D.H.] had paid the Respondent over $1,000, the Respondent’s license to practice law was suspended and the Respondent was not able to provide [C.J.] with the representation that he had agreed to provide.
“70. A $1,000 fee is unreasonable for the work the Respondent completed.
“71. The Respondent did not provide [D.H.] or [C.J.] with an accounting of the fees paid or a refund for the unearned fees.
“72. [D.H.] filed a complaint against the Respondent with the Disciplinary Administrator. Thereafter, the Client Protection Fund reimbursed [D.H.] $1,000.
“73. The Respondent has stipulated that he violated KRPC 1.5 and KRPC 1.16, in connection with [D.H.’s] complaint.
“DA10767: ¡J.B.]
“74. [J.B.] retained the Respondent to represent his son. [J.B.] paid the Respondent $500 for the representation.
“75. Because the Respondent’s license to practice law was suspended, the Respondent was unable to complete the representation. The Respondent failed to provide a refund of the unearned fees.
“76. The Respondent has stipulated that he violated KRPC 1.16 by fading to refund the unearned fees to [J.B.].
“DA10769: [N.W.]
“77. [N.W.] retained the Respondent to represent him in a criminal case. [N.W.] agreed to pay the Respondent $3,000 for the representation. [N.W.] paid $2,000 of the fee prior to the Respondent entering his appearance.
“78. The Respondent made a couple of appearances with [N.W.] on the case. The preliminary hearing on the case was scheduled by the Court for November 13, 2008. Because the Respondent’s license to practice law was suspended on October 17, 2008, the Respondent was unable to complete the representation.
“79. After the Respondent notified [N.W.] that he would not be able to continue the representation, [N.W.] requested an accounting and a refund of the unearned fees. The Respondent failed to provide [N.W.] with an accounting and a refund of the unearned fees.
“80. The Respondent has stipulated that he violated KRPC 1.15 by failing to provide an accounting and a refund of the unearned fees to [N.W.]
“CONCLUSIONS OF LAW
“1. Based upon the Stipulation, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.2, KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.15, KRPC 1.16, KRPC 8.1, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 218, as detailed below. [Footnote: In addition to KRPC 1.2, KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.15, KRPC 1.16, KRPC 8.1, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 218, the Disciplinary Administrator also alleged that the Respondent violated KRPC 8.4(c) for failing to return unearned fees. The Hearing Panel concludes that clear and convincing evidence was not presented to establish that the Respondent violated KRPC 8.4(c).
“2. KRPC 1.2 provides:
‘(a) A lawyer shall abide by a client’s decisions concerning the lawful objectives of representation, subject to paragraphs (c), (d), and (e), and shall consult with the client as to the means which the lawyer shall choose to pursue. . . .’
The Respondent waived the oral argument before the Kansas Court of Appeals without [D.G.’s] knowledge or authorization. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.2.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to diligently and promptly represent his clients. The Respondent failed to provide diligent representation to [M.H.], [G.L.], and [M.T.]. In [M.H.]’s case, the Respondent’s lack of diligence resulted in a dismissal of [M.H.j’s case. The Respondent was retained by [G.L.j’s family for two purposes. The Respondent failed to take any action to accomplish what he was retained and paid to do for [G.L.]. Finally, the Respondent failed to either file an action in federal court or a petition for review before the Kansas Supreme Court, in behalf of [M.T.]. The Respondent did not diligendy represent [M.T.]. Because the Respondent failed to act with reasonable diligence and promptness in representing his clients, the Hearing Panel concludes that the Respondent repeatedly violated KRPC 1.3.
“4. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and prompdy comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to adequately communicate with [M.H.], [G.L.], and [M.T.]. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“5. ‘A lawyer’s fee shall be reasonable.’ KRPC 1.5(a). In this case, the Respondent repeatedly accepted fees and failed to perform the work that he was paid to perform. Specifically, with regard to [G.L.], [T.M.], [M.T.], and [C.J.], the Respondent accepted fees and failed to complete the representation. The fees paid by or in behalf of [G.L.], [T.M.], [M.T.], and [C.J.], were unreasonable. Therefore, the Hearing Panel concludes that the Respondent repeatedly violated KRPC 1.5(a).
“6. Contingent fee agreements must be in writing. KRPC 1.5(d) provides the requirement in this regard:
‘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 die lawyer in the event of settlement, trial or appeal, and the litigation and other expenses to be deducted from the recovery. . . .’
The Respondent entered into a contingency fee agreement with [M.H.] but failed to reduce the agreement to writing. Thus, the Hearing Panel concludes that the Respondent violated KRPC 1.5(d).
“7. Lawyers must safeguard their clients’ property. Specifically, KRPC 1.15 provides:
‘(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall prompdy notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall prompdy deliver to the client or third person any funds or other property that the client or third person is entided to receive and, upon request by the client or third person, shall prompdy render a full accounting regarding such property.’
The Respondent violated KRPC 1.15(b) in two ways. First, the Respondent failed to provide accountings of fees as required by KRPC 1.15(b). Second, the Respondent failed to refund unearned fees. Retaining unearned fees is tantamount to conversion. If a fee has not been earned, it should remain available to be refunded to the client. The respondent failed to so account to and failed to refund unearned fees that were paid by or in behalf of [G.L.], [B.B.], [R.D.], and [N.W.]. Because the Respondent failed to properly account for fees and refund unearned fees, the Hearing Panel concludes that the Respondent repeatedly violated KRPC 1.15(b).
“8. KRPC 1.16 requires lawyers to take certain steps to protect clients after the representation has been terminated.
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
The Respondent violated KRPC 1.16(d) when he failed to return unearned fees that were paid by or in behalf of [G.L.], [A.Z.], [T.M.], [B.B.], [M.T.], [C.J.], and [J.B.]. The Hearing Panel concludes that the Respondent violated KRPC 1.16(d).
“9. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirements in this regard. ‘[A] lawyer in connection with a . . . disciplinary matter, shall not: ... knowingly fail to respond to a lawful demand for information from [a]... disciplinary authority,...’ KRPC 8.1(b).
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, 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 knew that he was required to timely forward a written response to the complaint ■ — he had been repeatedly instructed to do so in writing by the Disciplinary Administrator and by the attorney investigator. Because the Respondent knowingly failed to provide a timely written response to the complaint filed by [M.H.], [D.G.], [G.L.], [T.B-P], [D.C.], [A.Z.], [T.M.], and [B.B.], as requested by the Disciplinary Administrator and the attorney investigator, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).
“10. Upon suspension or disbarment, an attorney is required to take specific steps to notify his clients.
‘(a) In the event any attorney licensed to practice law in Kansas shall hereafter be disbarred or suspended from the practice of law pursuant to these Rules, or shall voluntarily surrender his or her license, such attorney shall forthwith notify in writing each client or person represented by him or her in pending matters, of his or her inability to undertake further representation of such client after the effective date of such order, and shall also notify in writing such client to obtain other counsel in each such matter. As to clients involved in pending litigation or administrative proceedings, such attorney shall also notify in writing the appropriate court or administrative body, along with opposing counsel, of such inability to further proceed, and shall file an appropriate motion to withdraw as counsel of record.’
Kan. Sup. Ct. R. 218(a). The Respondent failed to properly notify [T.M.] and [B.B.] following the Respondent’s suspension from the practice of law. As such, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 218(a).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“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 the duty violated, the lawyer’s mental state, the potential or actual injuiy caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his clients to provide diligent representation and adequate communication. The Respondent violated his duty to his clients to properly safeguard their property. The Respondent violated his duty to the legal profession to cooperate in disciplinary investigations.
“Mental State. The Respondent knowingly and intentionally violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused serious actual injury to many of his clients.
“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 the following aggravating factors present:
“Prior Disciplinary Offenses. On October 17,2008, the Kansas Supreme Court suspended the Respondent for a period of six months for having violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 3.2, KRPC 3.4(c), KRPC 8.4(d), Kan. Sup. Ct. R. 207(b), and Kan. Sup. Ct. R. 211(b). In re Thomas, 287 Kan. 88, 193 P.3d 907 (2008).
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct. This case involves complaints filed by or in behalf of 13 clients. The Respondent was previously disciplined in a case that involved complaints filed by or in behalf of seven clients. The 20 complaints involve similar misconduct. Thus, the Hearing Panel concludes that the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. In this case, the Respondent violated KRPC 1.2, KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.15, KRPC 1.16, KRPC 8.1, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 218. The Respondent committed multiple offenses.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. In eight of the 13 cases presently pending, the Respondent failed to provide a timely written response to the complaint. Failing to provide a timely written complaint obstructs the disciplinary investigators’ ability to conduct and conclude the investigation. Therefore, the Hearing Panel concludes that the Respondent engaged in a bad faith obstruction of the disciplinary investigation by failing to comply with KRPC 8.1 and Kan. Sup. Ct. R. 207.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law in 2000. At the time of the misconduct, tire Respondent had been practicing law for eight years. Eight years of practice constitutes substantial experience in the practice of law.
“Indifference to Making Restitution. To date, the Respondent has made no effort to refund unearned fees to clients or to reimburse the Client Protection Fund.
“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:
“Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The Respondent continues to struggle with alcohol abuse. At the time of the hearing, he had been sober for approximately six weeks. Additionally, the Respondent continues to struggle with depression. Alcohol abuse and depressions certainly may have contributed to the Respondent’s misconduct.
“The Present and Past 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. The Respondent entered into a stipulation, admitting much of the misconduct. The Respondent fully cooperated during the hearing on the Formal Complaint.
“Remorse. At the hearing on this matter, the Respondent expressed genuine remorse for engaging in the misconduct.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.12 Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury 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 injury or potential injury to a client.
‘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, the public, or the legal system.
‘8.1 Disbarment is generally appropriate when a lawyer:
(a) intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession; or
(b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be indefinitely suspended from the practice of law in the State of Kansas and that the Respondent be required to reimburse the Client Protection Fund, prior to reinstatement. The Respondent recommended that he be suspended for a period of one year. The Respondent recognizes that he will have to undergo a reinstatement hearing.
“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 an indefinite period of time. If the Respondent applies for reinstatement in the future, the Hearing Panel recommends that he provide evidence of a variety of factors. First, the Respondent should be required to establish that he has sustained his sobriety for a substantial period of time. Next, the Respondent should be required to establish that he has successfully completed all recommended treatment and aftercare and that he regularly attends some sort of relapse prevention treatment. Third, the Respondent should be required to establish that his depression is properly treated and that he is mentally fit to practice law. The Respondent’s requirement in this regard should consist of testimony from a treatment professional. Also, the Respondent should be required to establish that he has developed a solid business plan for running the business side of practicing law. Finally, as a condition precedent to applying for reinstatement, the Respondent should be required to establish that he has refunded all unearned fees to his clients and that he has fully reimbursed the Client Protection Fund for claims that it paid in his behalf.
“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 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 Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 321). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). 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 adopt the panel’s findings and conclusions.
At the hearing before this court, the Disciphnary Administrator asked the court to administer an indefinite suspension as recommended by the hearing panel, while the respondent again requested a 1-year suspension. This court finds that the number and severity of violations warrant an indefinite suspension from the practice of law in Kansas. Further, we require that, if respondent wishes to seek reinstatement, a hearing under Supreme Court Rule 219 (2009 Kan. Ct. R. Annot. 376) be held to consider, among other issues set out in Rule 219(f), whether:
1. Respondent has demonstrated a substantial period of sustained sobriety, completed all recommended treatment, and regularly participates in a relapse prevention program;
2. Respondent has established that any mental health issues have been properly treated and that he is mentally fit to practice law as verified by a mental health professional;
3. Respondent has established that he has made full and complete restitution to the Client Protection Fund for claims paid due to respondent’s actions; and
4. Respondent’s practice should be monitored by another attorney, and if so, any appropriate terms and conditions, including the time period for monitoring.
Conclusion and Discipline
It Is Therefore Ordered that Bobby Lee Thomas, Jr., be indefinitely suspended from the practice of law in the state of Kansas, effective the date of this order in accordance with Supreme Court Rule 203(a)(2) (2009 Kan. Ct. R. Annot. 272).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361), and in the event the respondent would seek reinstatement, he shall comply with Supreme Court Rule 219 with consideration of the issues noted above in addition to any others provided under this rule.
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.
Patricia Macke Dick, District Judge, assigned. | [
-76,
-22,
-33,
93,
12,
-29,
56,
38,
121,
-77,
103,
83,
-19,
-22,
8,
123,
83,
105,
-47,
121,
-59,
-74,
118,
-64,
70,
-13,
-8,
-43,
-78,
95,
-20,
-35,
73,
-80,
-118,
-43,
6,
-54,
-55,
-100,
-82,
6,
9,
-16,
89,
-63,
-80,
117,
18,
15,
53,
-33,
35,
46,
21,
-53,
-56,
104,
-1,
-19,
65,
-111,
-99,
21,
126,
4,
-93,
-123,
28,
7,
-44,
63,
-120,
56,
1,
-24,
51,
-78,
2,
100,
79,
-55,
41,
102,
114,
34,
9,
-89,
-92,
-116,
14,
-72,
29,
103,
-103,
89,
99,
12,
-106,
-35,
116,
20,
35,
124,
-31,
68,
27,
40,
14,
-49,
-48,
-109,
-98,
100,
-114,
-101,
-17,
-122,
16,
21,
-124,
-26,
95,
-33,
50,
27,
-82,
-76
] |
The opinion of the court was delivered by
Smith, J.:
This case arises out of a determination by the district court that Gary and Jerri Cochran have standing to seek judicial review of the determinations made by the Chief Engineer of the Division of Water Resources granting the applications of the City of Wichita to appropriate water for beneficial use. We affirm the district court.
Factual and Procedural History
There is no dispute of any essential fact.
In 1993, the City of Wichita, Kansas adopted an “Integrated Local Water Supply Plan” to serve Wichita and surrounding cities and rural water districts through 2050. As part of that plan the City of Wichita, Water & Sewer Department (the City), applied to the Department of Agriculture, Division of Water Resources (DWR) for permits to appropriate water for beneficial use, File Nos. 45,296, 45,297, 45,298, 45,299, 45,300, and 45,301. The City sought to divert groundwater from the Equus Beds aquifer and Arkansas River bank storage water from an area known as the “Bendy Well Field.” The Chief Engineer approved the applications, and the permits were issued on or about February 6, 2008.
Gary L. and Jerri Cochran (the Cochrans) are owners of prior water appropriation rights with points of diversion in the vicinity of the authorized points of diversion for the City’s permits. During the permit process, the DWR received input from the Cochrans and their legal counsel, who expressed concerns that their prior appropriation rights may be affected by the City’s proposed appropriation. Despite these concerns, the DWR approved the City’s applications for the permits.
The permits issued to the City included provisions to prevent impairment of existing water appropriation rights. For example, the Chief Engineer reserved the right to review the available hydro-logic data and make modifications to the conditions of approval, including revocation of the permit if the use of water as authorized was found to exceed the long-term sustainable yield of the aquifer, or caused impairment to existing water rights. Gary Cochran received a copy of the permits.
After the permits were issued, the Cochrans sent a letter to the Kansas Department of Agriculture, requesting a hearing regarding issuance of the permits. The Chief Engineer of the DWR entered an initial order denying the Cochrans’ request on March 26, 2008, finding that the Cochrans lacked standing under K.S.A. 82a-711(c) to request a hearing challenging the City’s permits. The Chief Engineer found that only the applicant enjoyed standing to appeal the determination relying on K.S.A. 82a-711(c). The Cochrans then filed a timely petition for administrative review of the Chief Engineer’s order with the Secretary of the Department of Agriculture. The Secretary, in turn, issued an order, finding that the Cochrans lacked standing under K.S.A. 82a-711(c). The Secretary determined that K.S.A. 82a-711(c) conferred standing to request judicial review of a permit only to the applicant for a permit and not to third parties.
On May 30, 2008, the Cochrans filed a petition for judicial review in district court in Sedgwick County. In their petition, the Cochrans argued that the permits granted to the City did not sufficiently protect their senior water rights. The Cochrans requested tire district court to stay or enjoin DWR’s action under the permits pending the Court’s final decision; set aside or modify DWR’s action; remand the matter for further proceedings before the DWR with directions to protect the Cochrans’ senior water rights; and provide other just and equitable relief.
The district court heard arguments limited to the issue of standing on Januaiy 29,2009, and found that, under this court’s decision in Board of Sumner County Comm'rs v. Bremby, 286 Kan. 745, 189 P.3d 494 (2008), the Cochrans had standing to seek review of the Chief Engineer’s order granting the permits.
The case is before this court on interlocutory appeal of the district court’s determination of the Cochrans’ standing.
Analysis
Water Rights in Kansas
Before addressing the standing question, a brief review of Kansas water law and the Kansas Water Appropriation Act (KWAA), K.S.A. 82a-701 et seq. is appropriate.
Since passing the KWAA in 1945, Kansas has followed “a permit system for acquiring water appropriation rights based upon ‘first in time, first in right.’ ” Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 614, 132 P.3d 870 (2006) (citing Peck and Owen, Loss of Kansas Water Rights for Non-Use, 43 Kan. L. Rev. 801, 805 [1995]). Water rights are considered real property. K.S.A. 2009 Supp. 82a-701(g). Further, “a water right does not constitute ownership of the water itself; it is only a usufruct, a right to use water.” Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, Syl. ¶ 6, 210 P.3d 105 (2009); see K.S.A. 82a-707(a).
Prior to enactment of the KWAA, Kansas followed the riparian doctrine for surface water and the absolute ownership doctrine for groundwater. Haioley, 281 Kan. at 613-14. Under both of these doctrines, water rights were “generally not lost solely by failure to use the water.” Hawley, 281 Kan. at 614 (citing 43 Kan. L. Rev. at 802).
Under the KWAA, Kansas now follows the appropriation doctrine. Williams v. City of Wichita, 190 Kan. 317, 333, 374 P.2d 578 (1962). “The appropriation doctrine is based upon the premise [] that all unused water belongs to all of the people of the state. The first person to divert water from any source and use it for beneficial purposes has prior right thereto. In other words, first in time, first in right.” F. Arthur Stone & Sons v. Gibson, 230 Kan 224, 630 P.2d 1164 (1981). Under this doctrine, this court now approaches questions concerning water rights “ upon the basis of the interest of the people of the state without losing sight of the beneficial use the individual is making or has the right to make of the water.’ ” F. Arthur Stone & Sons, 230 Kan. at 231 (quoting State, ex rel. v. Knapp, 167 Kan. 546, 555, 207 P.2d 440 [1949]).
Issue on Appeal
The sole question on appeal is whether the Cochrans have standing to seek review under the KWAA and/or the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. (KJRA).
This court has “explained that if a person does not have standing to challenge an action or to request a particular type of relief, then ‘there is no justifiable case or controversy’ and the suit must be dismissed.” Bremby, 286 Kan. at 750 (citing Kansas Bar Ass’n v. Judges of the Third Judicial Dist., 270 Kan. 489, 490, 14 P.3d 1154 [2000]). “When a person who does not have standing to file suit nevertheless asks for relief, it is tantamount to a request for an advisory opinion. [Citation omitted.] Advisory opinions are an executive, not a judicial, power.” 286 Kan. at 750 (citing State ex rel. Morrison v. Sebelius, 285 Kan. 875, 885, 179 P.3d 366 [2008]).
Standard of Review
“Standing is a jurisdictional question whereby courts determine whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant invocation of jurisdiction and to justify exercise of the court’s remedial powers on his or her behalf.’ ” Bremby, 286 Kan. at 750-51 (quoting Moorhouse v. City of Wichita, 259 Kan. 570, 574, 913 P.2d 172 [1996]). “Because standing implicated the court’s jurisdiction to hear a case, the existence of standing is a question of law over which this court’s scope of review is unlimited.” 286 Kan. at 751 (citing 312 Education Ass'n v. U.S.D. No. 312, 273 Kan. 875, 882, 47 P.3d 383 [2002]).
The district court’s ruling was made before commencement of discovery; therefore, this court should “accept the facts alleged in the petition as true, along with any inferences that can be reasonably drawn therefrom. If those facts and inferences demonstrate that the appell[ee]s have standing to sue, the decision of the district court must be [affirmed].” Bremby, 286 Kan. at 751.
Additionally, the issue presented requires the court to interpret sections of the KWAA, K.S.A. 82a-701 et seq. and the KJRA, K.S.A. 77-601 et seq.
“When courts are called upon to interpret statutes, the fundamental rule governing our 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 statutoiy 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 K.M.H., 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).
“. . . 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 the 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 eveiy part thereof. To this end, it is the duty of the 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.
Finally, this court no longer gives deference to an agency’s interpretation of a statute and, therefore, has unlimited review. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010).
Standing under the KJRA and KWAA
Both the KWAA and the KJRA contain provisions governing who has standing to seek review of the decisions of the Chief Engineer (in the case of the KWAA) or the agency (KJRA). See K.S.A. 2008 Supp. 82a-708b; K.S.A. 2010 Supp. 82a-711(c); K.S.A. 82a-716; K.S.A. 82a-717a; K.S.A. 77-611. Before determining whether the Cochrans have standing under traditional standards governing standing in this state, this court must consider whether the Cochrans meet the standing requirements of the KWAA and KJRA. See Bremby, 286 Kan. at 750.
This action involves a permit to appropriate water pursuant to the KWAA. The statute that confers standing for administrative review of the Chief Engineers’ decisions under these circumstances is K.S.A. 2010 Supp. 82a-711(c) which provides:
“With regard to whether a proposed use will impair a use under an existing water right, impairment shall include the unreasonable raising or lowering of the static water level or the unreasonable increase or decrease of the streamflow or the unreasonable deterioration of the water quality at the water user’s point of diversion beyond a reasonable economic limit. Any person aggrieved by any order or decision by the chief engineer relating to that person’s application for a permit to appropriate water may petition for review thereof in accordance with the provisions of K.S.A. 2010 Supp. 82a-1901 and amendments thereto.” (Emphasis added.)
The express language of K.S.A. 2010 Supp. 82a-711(c) clearly limits standing for administrative review of adverse water permit determinations by the Chief Engineer to the applicant. The Cochrans concede the statute so provides. Contrary to the arguments made by the DWR and the City, analysis of statutory standing does not end there.
The KJRA has a much more inclusive provision regarding standing. It is found in K.S.A. 77-611:
“The following persons having standing to obtain judicial review of final or non-final agency action:
“(a) A person to whom the agency action is specifically directed;
“(b) a person who was a party to the agency proceedings that led to the agency action;
“(c) if the challenged agency action is a rule and regulation, a person subject to that rule; or
“(d) a person eligible for standing under another provision of law.” (Emphasis added.)
The KJRA defines “party to agency proceedings,” as the term is used in K.S.A. 77-611(b), as “[a] person to whom the agency action is specifically directed” or “a person named as a party to any agency proceeding or allowed to intervene or participate as a party in the proceeding.” (Emphasis added.) K.S.A. 77-602(f)(2); see Bremby, 286 Kan. at 752.
The Cochrans have standing for judicial review under the KJRA if they participated as a party in the proceeding. In Bremby, this court considered this veiy question and determined that a “party” was a person who takes part in a transaction. 286 Kan. at 755. Further, the court found that “the legislature intended the term proceeding’ as it is used in the KJRA to be read broadly to refer to the process by which an agency carries out its statutory duties,” and the permit process KDHE undertook to consider whether to grant a landfill permit was a proceeding within the meaning of the KJRA. 286 Kan. at 756. This court held that an interested person’s “submission of written comments during a public notice and comment period and all persons’ comments made during a public hearing held by an agency both qualify as participation within the meaning of the KJRA’s standing requirements.” 286 Kan. at 758, 761.
The Cochrans meet the definition of “party” under K.S.A. 77-611 as interpreted in Bremhy. The Cochrans own prior appropriation rights with points of diversion in the vicinity of the authorized points of diversion for the City’s permits. The DWR received input from the Cochrans and their legal counsel during the consideration and processing of the City’s applications for permits. Thus, the Cochrans participated in the process by which the Chief Engineer carried out his statutory duties. The process at issue was a permit process, just like the process in Bremby. While there is no evidence in the record that there was a public notice of the applications or a comment period, the record indicates that DWR received input from the Cochrans and their legal counsel and the Chief Engineer considered the Cochrans’ concerns.
The legislature enacted the KJRA after the KWAA. The latter was passed in 1945, and the act was amended to include K.S.A. 82a-711(c) in 1957. The KJRA, on the other hand, was passed in 1984. The KWAA and its standing provisions on water appropriation applications had therefore been in place decades before passage of the KJRA. “[Cjourts presume the legislature acts with knowledge of existing statutory and case law when it enacts legislation.” Frick v. City of Salina, 289 Kan. 1, 23, 208 P.3d 739 (2009) (citing State ex rel. Board of Healing Arts v. Beyrle, 269 Kan. 616, 629, 7 P.3d 1194 [2000]); see State v. Bee, 288 Kan. 733, 738, 207 P.3d 244 (2009); Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 631-32, 176 P.3d 938 (2008).
The KJRA applies to all agencies and all proceedings for judicial review of agency actions not specifically exempted by statute. K.S.A. 77-603(a) provides “[t]his act applies to all agencies and all proceedings for judicial review and civil enforcement of agency actions not specifically exempted by statute from the provisions of this act.” See Lindenman v. Umscheid, 255 Kan. 610, Syl. ¶ 1, 875 P.2d 964 (1994); Heiland v. Dunnick, 270 Kan. 663, Syl. ¶ 1, 19 P.3d 103 (2001); and 10th Street Medical v. State, 42 Kan. App. 2d 249, 254, 210 P.3d 670 (2009), rev. denied (June 23, 2010).
We must presume the legislature enacted the KJRA with full knowledge of the provisions of the KWAA. Had the legislature intended exclusion of the DWR or the water appropriation process under the KWAA from the KJRA, or any provision thereof including its standing provisions, it would have so provided. On the contrary, K.S.A. 2009 Supp. 82a-724 specifies the KJRA as the statutory scheme for judicial review under the KWAA. There is no provision for exclusion of the KJRA from application to the KWAA.
To summarize our analysis on the statutory requirements of standing, we hold K.S.A. 2010 Supp. 82a-711(c) confers standing on water appropriation applicants only and applies only to agency review of a determination of the Chief Engineer with respect to that application. The KJRA confers standing on a party to the proceeding as that term is defined in the act and interpreted in Bremby and applies to judicial review as contemplated under that act. The Cochrans participated sufficiently to be considered a party to the proceedings and thus have standing to seek judicial review of the agency determinations pursuant to the KJRA.
Both DWR and the City have argued that the standing provisions of the KWAA are more specific than the general provisions of the KJRA; therefore, the KWAA controls. While it is an accurate statement of the law that “the more specific statute must control over a more general statute,” see State v. Martinez, 290 Kan. 992, 1001, 236 P.3d 481 (2010) (citing In re K.M.H., 285 Kan. 53, 82, 169 P.3d 1025 [2007], cert. denied sub nom. Hendrix v. Harrington, 555 U.S. 937, 172 L. Ed. 2d 239, 129 S. Ct. 36 [2008]), that rule has no application in this context. The rule applies where a general statute is in conflict with a specific statute dealing with the same subject.
“It is a cardinal rale of law that statutes complete in themselves, relating to a specific thing, take precedence over general statutes or over other statutes which deal only incidentally with the same question, or which might be construed to relate to it. Where there is a conflict between a statute dealing generally with a subject, and another dealing specifically with a certain phase of it, the specific legislation controls in a proper case. [Citations omitted.]” Chelsea Plaza Homes, Inc. v. Moore, 226 Kan. 430, 432, 601 P.2d 1100 (1979).
Here there is no such conflict as the KWAA standing statute concerns administrative remedies and the KJRA concerns judicial review. The legislature clearly adopted more expansive criteria in determining who may have standing for the purposes of seeking judicial review compared to standing to seek administrative review. There is no conflict between the two statutes; therefore, it is improper to use the more-specific-statute rule of construction. See, e.g., In re Tax Exemption Application of Mental Health Ass’n of the Heartland, 289 Kan. 1209, 1218, 221 P.3d 580 (2009).
The KJRA does require that one exhaust his or her administrative remedies, (see K.S.A. 77-612), but that statute provides:
“A person may file a petition for judicial review under this act only after exhausting all administrative remedies available within the agency whose action is being challenged and within any other agency authorized to exercise administrative review.” (Emphasis added.)
This statute has been interpreted to provide that if one has no administrative remedies available there is no additional requirement of “exhaustion.” Beaver v. Chaffee, 2 Kan. App. 2d 364, 369, 579 P.2d 1217 (1978), cited with approval, In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 624, 24 P.3d 128 (2001); see 2 Am. Jur. 2d, Administrative Law § 606. Thus, the Cochrans have satisfied the requirements of K.S.A. 77-612, and we find that, under the KJRA, they have standing to seek judicial review of the permits granted to the City.
Traditional Standing
It is important to emphasize that in addition to the statutory qualifications conferring standing, a party seeking judicial review— in fact, any party seeking to file an action in the courts of Kansas— must demonstrate he or she also meet the traditional requirements for standing. “A parly must have a sufficient stake in the outcome of an otherwise justiciable controversy in order to obtain judicial resolution of that controversy.” Moorhouse v. City of Wichita, 259 Kan. 570, 574, 913 P.2d 172 (citing Harrison v. Long, 241 Kan. 174, 176, 734 P.2d 1155 [1987]; Joe Self Chevrolet, Inc. v. Board of Sedgwick County Comm’rs, 247 Kan. 625, Syl. ¶ 1, 802 P.2d 1231 [1990]). To demonstrate standing in Kansas, the traditional test is twofold: “a person must demonstrate that he or she suffered a cognizable injury and that there is a causal connection between the injury and the challenged conduct.” Bremby, 286 Kan. at 761 (citing Moorhouse v. City of Wichita, 259 Kan. 570, 574, 913 P.2d 172 [1996]).
In Bremby, the plaintiffs alleged that the landfill, if unsuitable, could leak, contaminating the soil, groundwater, and surface water. 286 Kan. at 763. The petition in Bremby stated that plaintiff s organization members would “suffer damage to their real property and water supply if the . . . landfill site [wa]s unsuitable under applicable legal requirements and if it leakfed], causing contamination to the soil, groundwater and surface water.” 286 Kan. at 763. This court found that it could be “inferred from the petition that [plaintiffs] will suffer imminent injury if the challenge to issuance of landfill permit is not permitted. The [plaintiffs] therefore have standing to sue.” 286 Kan. at 763.
Just as in Bremby, the district court entered its ruling prior to the commencement of discovery; therefore, this court must accept the facts alleged by Cochrans to be true together with all reasonable inferences that can be drawn therefrom. See 286 Kan. at 751.
In their petition, the Cochrans claim that the permits do not sufficiently protect their senior water rights. Specifically, the Cochrans allege, as to Permit Nos. 45,296 and 45,297, paragraph 9 is vague and immeasurable, and the permit should have stated that the City would not be allowed to decrease the stream flow. As to Permit Nos. 45,298, 45,299, 45,300, and 45,301, the Cochrans complain that the City should be required to monitor water quality both above and below the competent clay unit; the water should be sampled daily when pumps are running and weekly when the pumps are not running; sampling and remedies should be extended to all Cochran domestic wells and all nondomestic water rights held by the Cochrans and any future owners of the property; 165 cubic feet per second is an inappropriate level by which to determine whether the bank storage well should be operated; and the permits do not specify any provisions or means to ensure that bank storage water is all that is withdrawn and no groundwater is withdrawn.
During the hearing on the Cochrans’ petition for judicial review, the Cochrans argued additional facts about their potential injury or impairment. First, the Cochrans have no other source of water for their home and land other than their two points of diversion. Further, they pointed out to the court that they spent between one and two million dollars building their home, anticipating it would remain rural, and, if they have no other water supply and no standing to challenge die grant of a permit to the city, they could not value their property accurately. This argument appears to stem from the concept that the City’s subsequent appropriation of water will impair the Cochrans’ prior water right to the extent that no one would purchase their home at a later time. Finally, the Cochrans also argue that there is no immediate response available to them if, at a later time, their supply of water is impaired. For these reasons, the Cochrans request that the court stay or enjoin the City’s action under the permits; set aside or modify the permits; remand the matter for further proceedings before die DWR with directions to protect the Cochrans’ senior water rights; and provide other just and equitable relief.
As in Bremby, the Cochrans allege a potential injury and damage “to their real property and water supply” if the appropriations by the City were “unsuitable under legal requirements.” See 286 Kan. at 763. Given those facts and inferences, under Bremby, we find the Cochrans allege sufficient imminent injury to the value of their property and the levels of water on their property.
Conclusion
The decision of the district court holding the Cochrans have standing under the KJRA to challenge the determinations of the Chief Engineer of the DWR is affirmed and the case is remanded to the district court for further proceedings within the parameters of that act.
Affirmed and remanded for further proceedings.
Richard M. Smith, District Judge, assigned. | [
-12,
106,
-20,
76,
28,
-63,
56,
-121,
81,
-71,
-28,
83,
103,
-54,
4,
123,
-61,
125,
117,
121,
-58,
-74,
75,
-64,
-42,
-5,
-5,
67,
-6,
93,
-12,
-60,
76,
80,
75,
-43,
70,
-126,
77,
-36,
-122,
1,
-119,
97,
-47,
2,
38,
99,
50,
-113,
113,
44,
-16,
41,
25,
-62,
-88,
52,
-37,
44,
64,
-13,
-82,
-123,
-116,
22,
48,
-92,
-126,
-57,
122,
107,
-112,
56,
-120,
104,
83,
-94,
-46,
52,
15,
-101,
-88,
97,
98,
32,
48,
-53,
104,
-120,
14,
-33,
-115,
-92,
-104,
89,
98,
-95,
-98,
-100,
117,
22,
13,
122,
126,
-59,
91,
-4,
-125,
-50,
-12,
-79,
79,
48,
-119,
19,
-17,
-125,
34,
100,
-39,
-26,
92,
71,
51,
31,
-122,
-40
] |
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Terence A. Lober, of Leavenworth, Kansas, an attorney admitted to the practice of law in Kansas in 1979.
On September 15, 2009, 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 failed to file an answer to the formal complaint. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on November 19, 2009. The respondent failed to appear at this hearing. The hearing panel determined that respondent violated KRPC 1.1 (2009 Kan. Ct. R. Annot. 410) (competence); 1.3 (2009 Kan. Ct. R. Annot. 426) (diligence); 1.4(a) (2009 Kan. Ct. R. Annot. 443) (communication); 1.5 (2009 Kan. Ct. R. Annot. 460) (fees); 1.15(b) (2009 Kan. Ct. R. Annot. 507) (safekeeping property); 8.4(d) (2009 Kan. Ct. R. An-not. 602) (engaging in conduct prejudicial to the administration of justice); 8.1(b) (2009 Kan. Ct. R. Annot. 594) and Kansas Supreme Court Rule 207(b) (2009 Kan. Ct. R. Annot. 303) (failure to cooperate in disciplinary investigation); and Kansas Supreme Court Rule 211(b) (2009 Kan. Ct. R. Annot. 321) (failure to file answer in disciplinary proceeding). Upon conclusion of the hearing, the panel made die following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“Complaints filed by [J.T.] and [J.S.]
“2. [J.T.] was convicted by his plea of aggravated battery in Nemaha County,
Kansas. On April 26, 2006, [J.T.] was sentenced to sixty-six months in prison. The Court granted [J.T.’s] request for probation.
“3. Later, [J.T.] violated the terms and conditions of his probation and was sent to prison. After [J.T.] was sent to prison, his family was upset and wanted to see if there was a way to get him out of prison.
“4. In March, 2007, [C.M.], [J.T.’s] mother, contacted Thomas M. Dawson about representing [J.T.]. Mr. Dawson agreed to research the matter for $5,000. Subsequently, Mr. Dawson and the Respondent met with [C.M.]. At that time, Mr. Dawson informed [C.M.] that in order for him to proceed, he would require an additional $40,000 in attorney fees.
“5. [C.M.] declined to retain Mr. Dawson for an additional $40,000. However, [J.T.] wanted to meet with Mr. Dawson and the Respondent. Mr. Dawson and the Respondent went to the prison and met with [J.T.]. Following that meeting, [J.T.] talked with his grandmother, [J.S.], about borrowing some money to retain the Respondent to file a motion to set aside [J.T.’s] guilty plea.
“6. [J.S.] agreed to assist [J.T.] and paid Mr. Lober $10,000, to file a motion to set aside [J.T.’s] guilty plea in October 2007. The Respondent agreed to proceed quickly and would get a motion to set aside the guilty plea on file.
“7. On October 1,2007, [J.S.] sent the Respondent an electronic mail message inquiring about the status of file case. The following day, the Respondent replied. The Respondent indicated that he had been in Colorado handling a federal appellate case. The Respondent assured [J.S.] that he would be able to get [J.T.] into court in late October or early November, 2007.
“8. On October 12, 2007, the Respondent indicated that he would have the motion ready within the following two weeks. The Respondent also indicated that he had an appointment to meet with [J.T.] on Saturday, October 13, 2007. The Respondent, however, did not file a motion in behalf of [J.T.] nor did he see [J.T.] in prison.
“9. On November 9, 2007, the Respondent again assured [J.S.] that he was working on the motion for [J.T.]. The Respondent indicated that he would file the motion within the next seven to ten days. The Respondent did not file a motion in behalf of [J.T.] as promised.
“10. On November 13, 2007, the Respondent promised to go and see [J.T.] in prison on the following Thursday. The Respondent did not go to see [J.T.] as promised.
“11. The Respondent explained, on November 21, 2007, that he had been ill with the flu and that he would attend to [J.T.’s] motion as soon as possible.
“12. Despite that [J.S.] sent the Respondent three electronic mail messages in early December, 2007, [J.S.] did not hear from the Respondent until December 27, 2007. In that note, the Respondent stated that he would see [J.T.] in prison on December 28,2007. The Respondent did not keep the appointment with [J.T.] on December 28, 2007.
“13. After the electronic mail message [was] sent by the Respondent on December 27,2007, neither [J.T.], [C.M.], nor [J.S.] ever heard from the Respondent again. The Respondent never filed a motion to set aside [J.T.’s] guilty plea.
“14. On January 22, 2008, on February 15, 2008, and on February 26, 2008, Martin W. Mishler, an attorney related to [J.T.], wrote to the Respondent requesting an accounting of the $10,000 and a refund of the balance of the advanced fee. Additionally, Mr. Mishler requested that the Respondent provide an explanation of his failure to file a motion to set aside the guilty plea. The Respondent never responded to Mr. Mishler’s letters.
“15. [J.T.] and [J.S.] filed complaints against tire Respondent. Thereafter, the Disciplinary Administrator docketed the complaints against the Respondent.
“16. On February 22, 2008, the Disciplinary Administrator notified the Respondent that the complaints had been docketed. The Disciplinary Administrator directed the Respondent to provide a written response to the complaints.
“17. Stephen W. Cavanaugh was appointed to investigate [J.T.’s] and [J.S.’s] complaints. On March 24, 2008, and April 15, 2008, Mr. Cavanaugh wrote to the Respondent directing the Respondent to provide a written response to the complaints. The Respondent failed to provide a written response to the complaints.
“Complaintfiled by [F.D.]
“18. In March, 2008, [F.D.] retained the Respondent to represent him in a criminal case. [F.D.] paid the Respondent $500 for the representation.
“19. At the outset, [F.D.] provided the Respondent with photographs and witness statements. [F.D.] did not retain a copy of these items.
“20. [F.D.’s] first appearance was scheduled for March 24, 2008. The Respondent informed [F.D.] that his personal appearance was not necessary and that the Respondent would appear in his behalf.
“21. After the first appearance, [F.D.] spoke by telephone with the Respondent. The Respondent informed [F.D.] that he had spoken with the prosecutor and that the prosecutor was going to dismiss the criminal case. [F.D.] relied on the Respondent and believed that the case had been dismissed.
“22. In June, 2008, [F.D.] learned that the court had issued a warrant for his arrest for failing to appear in court. [F.D.] repeatedly called the Respondent by telephone, but was unable to reach him. Approximately three weeks later, the Respondent left a voice mail message for [F.D.]. In the message, the Respondent stated that his father had passed away and that he was out of state. [F.D.] never heard from the Respondent again.
“23. [F.D.] was required to pay $100 to have the arrest warrant recalled.
“24. The Respondent never returned the photographs and witness statements to [F.D.]. Additionally, the Respondent never returned any unearned fees to [F.D.]. [F.D.] retained a new attorney, Gary Nelson, to represent him in the criminal case. Mr. Nelson was able to negotiate a reduction of the charges and obtained a diversion for [F.D.].
“25. In August, 2008, [F.D.] filed a complaint against the Respondent. The Disciplinary Administrator docketed tire complaint and, thereafter, Mr. Cavanaugh was appointed to investigate the complaint.
“26. On August 27, 2008, the Disciplinary Administrator directed the Respondent to provide a written response to the initial complaint fried by [F.D.] within 20 days.
“27. On September 8, 2008, and on November 12, 2008, Mr. Cavanaugh wrote to die Respondent and directed the Respondent to provide a written response to [F.D.’s] complaint. The Respondent did not provide a written response to the complaint.
“Formal Proceedings
“28. On September 15, 2009, the Disciplinary Administrator filed a Formal Complaint regarding [J.T.’s], [J.S.’s], and [F.D.’s] complaints. The Disciplinary Administrator sent a copy of the Formal Complaint and Notice of Hearing to the Respondent at his last registration address, via certified United States mail. The package containing the Formal Complaint and Notice of Hearing that was sent to the Respondent’s last registration address was returned and marked ‘not deliverable as addressed, unable to forward.’
“29. Additionally, the Disciplinary Administrator also sent a copy of the Formal Complaint and Notice of Hearing to an additional address that the Respondent had provided in an earlier disciplinary proceeding . . . via certified United States mail. The package containing the Formal Complaint and Notice of Hearing that was sent to the Respondent’s address in ... Colorado, was also returned. The package was marked ‘returned to sender, unclaimed, unable to forward, return to sender.’
“30. The Respondent did not file an Answer to the Formal Complaint.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.15, KRPC 8.1, KRPC 8.4, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 211, as detailed below.
“2. The Respondent failed to appear at the hearing on the Formal Complaint. It is appropriate to proceed to hearing when a Respondent fails to appear only if proper service was obtained. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows:
‘(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney’s most recent registration, or at his or her last known office address.
‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’
In this case, tire Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the Notice of Hearing, via certified United States mail, postage prepaid, to the address shown on the Respondent’s most recent registration. Additionally, the Disciplinary Administrator forwarded a copy of the Notice of Hearing and the Formal Complaint to an address previously provided by the Respondent in . . . Colorado. The Hearing Panel concludes that the Respondent was afforded the notice that the Kansas Supreme Court Rules require.
“3. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Respondent failed to thoroughly prepare for the representation of [J.T.] and [F.D.]. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“4. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to diligently and promptly represent his clients, [J.T.] and [F.D.], by fading to timely advance their matters. Because the Respondent failed to act with reasonable diligence and promptness in representing his clients, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“5. 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 keep [J.T.] and [F.D.] informed regarding the representations. The Respondent failed to meet with [J.T.] in prison. Also, the Respondent failed to inform [F.D.] that his personal appearance in court was required. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“6. According to KRPC 1.5(a), ‘[a] lawyer’s fee shall be reasonable.’ The Respondent [and Dawson] attempted to charge [J.T.] $40,000 to file a motion to set aside a guilty plea. A fee of $40,000 is perse unreasonable. KRPC 8.4(a) prohibits attorneys from violating or attempting to violate the Kansas Rules of Professional Conduct. By attempting to charge [J.T.] $40,000, the Respondent attempted to violate KRPC 1.5. As such, the Hearing Panel concludes that by virtue of KRPC 8.4(a), the Respondent violated KRPC 1.5.
“7. Lawyers must deal properly with the property of their clients. Specifically, KRPC 1.15(b) provides:
‘(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.’ In this case, on at least three occasions, Mr. Mishler requested that the Respondent provide an accounting of the advanced fee of $10,000 and Mr. Mishler also requested that the Respondent refund the unused portion of the $10,000. The Hearing Panel concludes that the Respondent violated KRPC 1.15(b) when he failed to refund the unearned fees paid by [J.S.].
“8. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he failed to take any action in [J.T.’s] behalf and when he informed [F.D.] that the pending criminal case was going to be dismissed. As a result of the Respondent’s failure in this regard, no motion was filed in behalf of [J.T.], and a bench warrant was issued for [F.D.’s] arrest. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
“9. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirements in this regard. ‘[A] lawyer in connection with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information from [a]... disciplinary authority....’ KRPC 8.1(b).
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to tile Disciplinary Administrator any information he or she may have affecting such matters.’ Kan. Sup. Ct. R. 207(b).
The Respondent knew that he was required to forward a written response to the initial complaint — he had been instructed to do so in writing by the Disciplinary Administrator and by the attorney investigator. Because the Respondent knowingly failed to provide a written response to the initial complaints filed by [J.T.], [J.S.], and [F.D.], as requested by the Disciplinary Administrator and the attorney investigator, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).
“10. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) provides the requirements:
‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’
In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered tire 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 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.
“Duty Violated. The Respondent violated his duty to his clients to provide competent and diligent representation and adequate communication. The Respondent violated his duty to the public and the legal profession to maintain his personal integrity. Finally, the Respondent violated his duty to the legal profession to cooperate in disciplinary investigations.
“Mental State. The Respondent knowingly and intentionally violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to [J.S.], potential injury to [J.T.], and actual injury to [F.D.].
“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 the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has been disciplined on a number of occasions:
T. On May 23, 1994, in B5807, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 1.3 and KRPC 1.4.
‘2. On February 26, 1996, the Disciplinary Administrator informally admonished tire Respondent for having violated KRPC 1.3, KRPC 1.4, and KRPC 1.7.
‘3. On December 11, 1998, the Kansas Supreme Court placed the Respondent on probation for two years for having violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.16, KRPC 3.1, KRPC 3.2, KRPC 3.3, KRPC 4.1, KRPC 8.1, KRPC 8.4, and Kan. Sup. Ct. R. 207. In those cases, the Respondent failed to diligendy file a journal entry, the Respondent failed to provide a client with a copy of a proposed Journal Entry, the Respondent failed to return telephone calls, and the Respondent failed to cooperate in disciplinary investigations. The Respondent remained on probation until December 10,2000. See In re Lober, 266 Kan. 404, 969 P.2d 885 (1998).
‘4. On June 21, 2000, in DA7352, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 1.16.
‘5. Also on June 21, 2000, in DA7394, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 1.1, KRPC 1.3, KRPC 1.4, and KRPC 1.16.
‘6. On October 31, 2003, the Kansas Supreme Court suspended the Respondent from the practice of law for a period of one year for having violated KRPC 1.4, KRPC 8.1(b), and Kan. Sup. Ct. R. 207(b). See In re Lober, 276 Kan. 633, 78 P.3d 442 (2003). [Footnote: Following the 1-year suspension, on March 11, 2005, the Kansas Supreme Court reinstated the Respondent’s license to practice law in the State of Kansas.]
‘7. On April 3, 2009, the Kansas Supreme Court indefinitely suspended the Respondent from the practice of law in the State of Kansas for having violated KRPC 1.1, KRPC 1.2, KRPC 1.3, KRPC 1.4(a), KRPC 3.2, KRPC 8.4(d) and KRPC 8.4(g). See In re Lober, 288 Kan. 498, 204 P.3d 610 (2009).’
“Dishonest or Selfish Motive. The Respondent’s misconduct included keeping unearned fees. Failing to refund money owed to a client[ ] amounts to dishonest and selfish conduct.
“Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.15, KRPC 8.1, KRPC 8.4, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 211.
“Bad Faith, Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Buies or Orders of the Disciplinary Process. The Respondent failed to participate in the investigation or prosecution of this matter. As such, the Hearing Panel concludes that the Respondent engaged in a bad faith obstruction of the disciplinary proceeding.
“Vulnerability of Victims. The Hearing Panel concludes that [J.S.], [J.T.], and [F.D.] were vulnerable victims.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law on September 14, 1979. The Respondent had been practicing law for nearly 20 years. Thus, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law.
“Indifference to Making Restitution. To date, the Respondent has not refunded the unearned fees.
“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 no mitigating circumstances present.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.11 Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.
‘4.41 Disbarment is generally appropriate when:
(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.
‘4.51 Disbarment is generally appropriate when a lawyer’s course of conduct demonstrates that the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer’s conduct causes injury or potential injury to a client.
‘8.1 Disbarment is generally appropriate when a lawyer:
(b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be disbarred.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be disbarred.
"Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
The Disciplinaiy Administrator recommends that this court adopt the recommendation of the hearing panel that respondent be disbarred from the practice of law in this state. We note that the respondent did not provide an answer to the complaint, appear for hearing before this court, or offer an explanation for his absence, although a copy of the hearing notification was mailed to him in accordance with our rules. The notice was mailed, both by regular mail and by certified mail, on September 15, 2009, to respondent’s last address on file with the Clerk of the Appellate Courts; both were returned, marked “not deliverable as addressed, unable to forward.” Because respondent had filed with the Clerk of the Appellate Courts a responsive pleading in a prior disciplinaiy action listing an address in Colorado, the same notice in this case was mailed September 15, 2009, to the Colorado address; it also was returned, marked “returned to sender, unclaimed, unable to forward, return to sender.” The respondent was properly notified of this proceeding, and this court has jurisdiction to proceed.
In a disciplinary proceeding, this court considers the evidence, the findings of the hearing panel, and arguments of the Disciplinary Administrator and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 321). When a respondent does not file exceptions to the hearing panel’s report, the report is deemed admitted under Supreme Court Rule 212(c) and (d) (2009 Kan. Ct. R. Annot. 337).
In this case, Lober filed no exceptions to the hearing panel’s report. We conclude there is clear and convincing evidence that Lober violated KRPC 1.1, 1.3, 1.4(a), 1.5, 1.15(b), 8.1(b), 8.4(a) and (d) as well as Supreme Court Rules 207(b) and 211(b), and we adopt the conclusions of the hearing panel.
Disbarment is deemed appropriate according to the following ABA Standards when: “a lawyer knowingly converts client property and causes injury or potential injury to a client,” Standard 4.11; “a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or . . . engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client,” Standard 4.41; or “a lawyer’s course of conduct demonstrates that the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer’s conduct causes injury or potential injury to a client,” Standard 4.51. The hearing panel found that each of these Standards apply in this matter, and this court, in turn, must reach the same conclusion.
Standard 8.1 provides:
“Disbarment is generally appropriate when a lawyer:
‘(a) Intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession; or
‘(b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’ ”
Standard 8.1 applies in this case because a 1-year suspension from the practice of law was imposed in In re Lober, 276 Kan. 633, 78 P.3d 442 (2003). In In re Lober, 288 Kan. 498, 204 P.3d 610 (2009), this court indefinitely suspended Lober from the practice of law, although the actions that led to the complaints currently before this court did not occur subsequent to that suspension. In addition to these cases, there were four complaints previously con sidered by the Disciplinary Administrator; the earliest was filed in 1994. Therefore, the hearing panel made the findings suggested by Standard 8.1. See In re Comfort, 284 Kan. 183, 207, 159 P.3d 1011 (2007) (every potentially applicable ABA Standard need not be discussed by hearing panel or court; ABA Standards serve only as guidelines to assist courts in selecting appropriate and uniform discipline).
We conclude that the appropriate discipline is disbarment.
Conclusion and Discipline
It Is Therefore Ordered that the respondent, Terence A. Lober, be and he is hereby disbarred from fixe practice of law in the state of Kansas effective immediately, in accordance with Supreme Court Rule 203(a)(1) (2009 Kan. Ct. R. Annot. 272) for his violations of the Kansas Rules of Professional Conduct.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Terence A. Lober from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that Terence A. Lober comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361).
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of this action be assessed to respondent.
Patricia Macke Dick, District Judge, assigned. | [
-80,
-22,
-3,
95,
8,
97,
58,
60,
81,
-13,
119,
82,
-23,
-33,
5,
59,
-47,
105,
-112,
121,
69,
-74,
122,
64,
102,
-1,
-7,
85,
-70,
127,
-12,
-99,
73,
48,
-118,
-43,
-122,
-118,
-43,
-100,
-118,
3,
9,
-16,
81,
-63,
-72,
109,
-101,
15,
49,
-66,
-29,
42,
53,
-53,
-56,
108,
-66,
-81,
-47,
-47,
-5,
-107,
123,
22,
-93,
-123,
26,
7,
84,
63,
-120,
57,
1,
-24,
115,
-74,
-122,
116,
15,
-103,
-83,
102,
98,
33,
25,
-95,
-96,
-120,
14,
58,
-115,
39,
-103,
80,
99,
-115,
-106,
-99,
116,
22,
35,
-4,
96,
4,
61,
-20,
14,
-49,
-92,
-111,
30,
101,
-50,
-102,
-21,
-28,
52,
21,
-116,
-26,
91,
-41,
114,
31,
-6,
-75
] |
The opinion of the court was delivered by
Rosen, J.:
In this case, the courts are again called upon to make the painful determination of whether a child should reside with a natural parent, who has the emotional bonds that follow from biological fatherhood, or with prospective adoptive parents, whose emotional bonds have evolved over many months of loving, supporting, and caring for the child. It is ultimately a legal decision which this court must reach, but it is a legal decision that is shadowed by the heartbreak of severing human bonds. A review of judicial decisions from various jurisdictions demonstrates how courts struggle with these painful choices. See, e.g., Mississippi Choctaw Indian Band v. Holyfield, 490 U.S. 30, 65, 104 L. Ed. 2d 29, 109 S. Ct. 1597 (1989); Roe Family Services v. Doe, 139 Idaho 930, 88 P.3d 749 (2004); Hale v. Cramer, 254 Md. 592, 255 A.2d 37 (1969); McCann v. Doe, 377 S.C. 373, 660 S.E.2d 500 (2008); In re Mata, 212 S.W.3d 597 (Tex. App. 2006); In re Reinius, 55 Wash. 2d 117, 346 P.2d 672 (1959).
Baby Girl P. was bom on June 23, 2008, in Overland Park, Kansas. Her mother was Lauren P., who was married at the time to Cortlandt James P. (C.J.). They were living in Florida when they separated in May 2007; Lauren then moved to Kansas, where she lived with her parents.
In fall 2007, while living in Kansas, Lauren began a romantic relationship with Devon M. Devon was employed at the time in a part-time job with a lawn service and was living with his mother. His income was around $200 per month, some of which he paid to his mother to contribute to his living expenses and some of which he used to pay his telecommunications bill. In June 2008, he obtained regular employment with an annual salary of about $25,000 and with benefits that included health insurance.
In October 2007, Lauren learned that she was pregnant, and some time after November 20, 2007, she informed Devon. Lauren and Devon both considered Devon the father, and subsequent DNA testing did not exclude him as the father.
According to Lauren s trial testimony, Devon was indifferent to the news, expressing no interest in the pregnancy or subsequent parenthood. In an earlier deposition, however, Lauren testified that Devon was excited when he learned about the pregnancy. There was also testimony that after learning Lauren was pregnant, Devon bought her flowers and told her he wanted the relationship to become more committed and durable because they were going to be a family raising a child together. He also kept the pictures of the sonograms that Lauren sent him in November.
Lauren ended the relationship with Devon in mid-December 2007, shortly before her husband made preparations to come to Kansas. Lauren testified that from that time on, she did not hear from Devon. Her telephone records, however, revealed that Devon made numerous telephone calls and sent numerous text messages for many weeks after she alleged that she had no contact with him.
There was testimony that Lauren told Devon in a text message in February or March 2008, that she had suffered a miscarriage, although at trial Lauren denied having sent such a message. Lauren had told him about two previous miscarriages, so Devon assumed he had no reason to question the veracity of her message. An acquaintance of Lauren told Devon that she thought Lauren was no longer pregnant because she did not look pregnant and because she continued to drink and smoke as if she were not pregnant. There was also testimony that Lauren informed Devon that she was moving to Texas and that he was not to contact her anymore.
During die 6 months prior to Baby Girl P.’s birth, Devon did not provide or offer to provide Lauren with any money, Christmas presents, clothes, or other material support. He explained that he did not provide her with support because he believed she had suffered a miscarriage.
In January 2008, Lauren and C.J. reconciled, and in March 2008 they moved into an apartment in Johnson County. During the reconciliation process, Lauren did not inform C.J. that she was pregnant. When C.J. finally learned of die pregnancy, in April or May 2008, he said he did not want to raise the child and wanted it placed for adoption.
On the day Baby Girl P. was bom, Lauren told one of the doctors at the hospital that she intended to place the child for adoption. The following day, Lauren signed an affidavit in which she provided an incorrect surname name for Devon. She later testified that she “didn’t really remember his last name.” She also averred in the affidavit that Devon had moved to an unknown address and city in Florida, which she knew was false. She testified that she gave this incorrect information because Devon had talked about moving to Florida to be with his father. She did not provide Devon’s last known street address to investigators, claiming not to remember what it was. Although she had been arrested in front of Devon’s house for driving under the influence of alcohol, she did not inform the adoption investigators where his house was or that they would be able to find it from the arrest record. As a consequence, Devon was not informed of the birth and was initially unaware that he had a daughter.
On July 10, 2008, a petition for adoption was filed in district court. In August 2008, an investigator contacted Devon’s mother pursuant to the adoption proceeding. As a result, Devon and his mother learned that Lauren had carried her pregnancy to term and he immediately obtained counsel in an attempt to protect his parental rights. He then filed motions through counsel seeking visitation with his daughter. He eventually was permitted to visit the child on two occasions for 1 hour each time. Devon wrote to the prospective adopting couple thanking them for allowing him to visit his daughter and offering to provide support for her. He and his mother also delivered Christmas presents to the adoption agency to pass along to the child.
Lauren voluntarily relinquished her parental rights, and the custodial couple filed a petition for adoption. The district court bifurcated the parental rights issue from the adoption issue and conducted an evidentiary hearing on December 17-18, 2008. In a memorandum decision filed March 3, 2009, the district court granted the petition to terminate Devon’s parental rights. The adoption issue remains pending in the district court.
The district court made a number of specific factual findings, many of them expressed as negatives: Devon did not fail to provide Lauren with support without good cause during the 6 months preceding Baby Girl P.’s birth; he did not abandon Lauren after having knowledge of her pregnancy; he did not abandon or neglect Baby Girl P. after he learned of her birth; and he made reasonable efforts to communicate with Baby Girl P. after her birth. He neglected his legal obligation to support Baby Girl P. after he learned of her birth, however, by not providing or offering financial support for the child and by not establishing his parental rights in a separate custody proceeding.
The district court then considered Baby Girl P.’s best interest under K.S.A. 2009 Supp. 59-2136(h)(2)(A). The court noted that Devon had failed to demonstrate a commitment to support her. He failed to investigate zealously whether Lauren had told the truth about the miscarriage, which foreclosed him from pursuing a paternity proceeding, claiming custody, and committing his financial support for her upbringing. These factors “undergird[ed]” the additional finding of the child’s best interest, which “tip[ped] the evidentiary scale” in favor of termination.
Following the denial of his motion to reconsider, Devon appealed to the Court of Appeals. The district court stayed resolution of the adoption proceedings pending final resolution of the appeal. In In re Adoption of Baby Girl P., No. 102,287, unpublished opinion filed January 22, 2010, the Court of Appeals affirmed the district court but expressed concerns about the burden Kansas case law places on fathers when they attempt to assert parental rights. This court granted review on all issues.
Discussion
As a prehminary matter, we must address the jurisdiction of the appellate courts over this appeal. K.S.A. 2009 Supp. 59-2401a(b)(l) permits appeals from “any final order[,] judgment or decree” entered in “any proceeding pursuant” to the Kansas Adoption and Relinquishment Act. The adoption proceeding is still pending in the district court, and the district court did not certify this case for interlocutory appeal under K.S.A. 2009 Supp. 60-2102(c).
An appeal may be taken as a matter of right from any final decision in a civil proceeding. A final decision generally disposes of the entire merits of the case and leaves open no further questions or the possibility of future directions or actions by the district court. Flores Rentals v. Flores, 283 Kan. 476, 481-82, 153 P.3d 523 (2007). Interlocutory and piecemeal appeals are discouraged and are considered exceptional. When a district court bifurcates an action and delays ruling on some part of the matter before it, the case usually becomes ripe for appeal only when the district court enters final judgment on all pending issues. Cf. McCain v. McCain, 219 Kan. 780, 783, 549 P.2d 896 (1976).
An appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, it is the duty of the appellate court to dismiss the appeal. State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008). We therefore must determine whether the termination order was a final order, which would confer jurisdiction to the appellate courts.
We conclude that an order terminating parental rights is an appealable final order under K.S.A. 2009 Supp. 59-2401a(b)(l). That statute allows appeals from final orders, judgments, and decrees. That language is broader and more inclusive than the language found in K.S.A. 2009 Supp. 60-2102(a)(4), the statute governing general civil appeals, which speaks only to final “decisions.” K.S.A. 2009 Supp. 38-2273(a), which governs appeals under the Revised Kansas Code for Care of Children, explicitly identifies termination of parental rights as an “order” subject to immediate appeal. Requiring that a party in an adoption proceeding wait to appeal a termination of parental rights until the adoption is concluded would have no judicial benefit and could unnecessarily prolong final resolution of custody issues. Allowing an immediate appeal from an order terminating parental rights pursuant to an adoption proceeding is consistent with the statutory scheme and the interests of justice. The appellate courts accordingly have jurisdiction over this appeal.
We now turn to the substantive issues, in particular, whether Devon forfeited his parental rights because he neglected his daughter.
Natural parents who have assumed their parental responsibilities have a fundamental right, protected by the United States Constitution and the Kansas Constitution, to raise their children. K.S.A. 2009 Supp. 59-2136(d) expresses Kansas’ public policy that the best interests of children are served by fostering their relationships with their natural parents in cases where the parents have assumed parental duties toward their children. In re Adoption of G.L.V., 286 Kan. 1034, 1057-58, 190 P.3d 245 (2008).
We strictly construe adoption statutes in favor of maintaining the rights of natural parents in those cases where it is claimed that, by reason of a parent’s failure to fulfill parental obligations as prescribed by statute, consent to the adoption is not required. Adoption ofG.L.V., 286 Kan. 1034, Syl. ¶ 6. A natural parent’s right to raise his or her child is tempered by the extent to which the parent has assumed his or her parental responsibilities. When a natural father has assumed a sufficient level of parental responsibility under Kansas law, his parental rights are entitled to constitutional protection. Adoption of G.L.V., 286 Kan. at 1061-62.
A petitioner in an adoption proceeding under K.S.A. 2009 Supp. 59-2136 has the burden of proving by clear and convincing evidence that termination of parental rights is appropriate. In re Adoption of B.B.M., 290 Kan. 236, 243, 224 P.3d 1168 (2010). A court is to consider all of the relevant surrounding circumstances in an action based on K.S.A. 2009 Supp. 59-2136(h)(l)(D). Poverty alone is an insufficient basis for termination under that provision. Adoption of B.B.M., 290 Kan. at 245.
Appellate courts will uphold termination of parental rights if, after reviewing all the evidence in the light most favorable to the prevailing party, they deem the district court’s findings of fact to be highly probable, i.e., supported by clear and convincing evidence. Appellate courts do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine factual questions. Adoption of 290 Kan. at 244.
A determination of whether to terminate paternal rights incident to an adoption is subject to K.S.A. 2009 Supp. 59-2136. K.S.A. 2009 Supp. 59-2136(h)(l) allows a district court to terminate parental rights upon finding by clear and convincing evidence any of the following factors:
“(A) The father abandoned or neglected the child after having knowledge of the child’s birth;
“(B) the father is unfit as a parent or incapable of giving consent;
“(C) the father has made no reasonable efforts to support or communicate with the child after having knowledge of the child’s birth;
“(D) the father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth;
“(E) the father abandoned the mother after having knowledge of the pregnancy;
“(F) the birth of the child was the result of rape of the mother; or
“(G) the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition.”
K.S.A. 2009 Supp. 59-2136(h)(2) further provides that, when making such a determination, the district court may consider and weigh the best interest of the child and may disregard incidental visitations, contacts, communications, or contributions.
Devon initially asks this court to extend to nonstepparent adoption proceedings the so-called “ledger test” for support that has been applied in stepparent adoption proceedings under K.S.A. 2009 Supp. 59-2136(d). Under the ledger test, failure to provide financial support is just one aspect of neglect; failing to provide emotional support is the other aspect. Balancing these two aspects is a requirement in determining whether a parent has neglected a child in the context of stepparent adoptions. See Adoption of G.L.V., 286 Kan. at 1054; In re Adoption of B.M.W., 268 Kan. 871, 882, 2 P.3d 159 (2000); In re Adoption of K.J.B., 265 Kan. 90, 99-101, 959 P.2d 853 (1998); In re Adoption of C.R.D., 21 Kan. App. 2d 94, 100-02, 897 P.2d 181 (1995) (Lewis, J., concurring). Devon contends that the district court’s factual findings in his case satisfied the ledger test because he attempted to provide emotional support in addition to his offers of financial support.
Our legislature chose different statutory language for the factors that a district court is to consider when addressing stepparent and nonstepparent adoption proceedings. K.S.A. 2009 Supp. 59-2136(h) is more specific in terms of setting out factors for termination than K.S.A. 2009 Supp. 59-2136(d). Unlike K.S.A. 2009 Supp. 59-2136(d), which speaks generally to failure “to assume the duties of a parent,” K.S.A. 2009 Supp. 59-2136(h)(l)(C) allows for termination if the father fails to make reasonable efforts “to support or communicate with the child.” (Emphasis added.) The disjunctive “or” used in this part of the statute demonstrates a legislative intent that failure to provide either component — financial or emotional support — may suffice in itself to warrant terminating parental rights. We therefore decline to extend the ledger test to non-stepparent adoption proceedings.
Devon next argues that, notwithstanding the ledger test, substantial competent evidence did not support the district court’s conclusion that he had failed to make reasonable efforts to support his daughter. A discussion of this issue necessarily includes addressing whether Devon made reasonable efforts to investigate the course of Lauren’s pregnancy.
The Court of Appeals determined that K.S.A. 2009 Supp. 59-2136(h)(1)(A) and (C) are not redundant, and evidence of financial neglect under subsection (C) is not the same as abandoning or neglecting a child under subsection (A). We agree. We presume that the legislature does not enact subsections that render other subsections redundant. See State v. Dickson, 275 Kan. 683, 691, 69 P.3d 549 (2003). Financial neglect may not serve as the only basis for a finding of neglect under subsection (A); the court must have some additional evidentiary basis for finding neglect under that subsection.
The Court of Appeals concluded, however, that the evidence supported the district court’s finding of neglect under subsection (C). The district court noted that Devon had failed to request a paternity proceeding to claim custody of his daughter and had failed to commit his financial support to her. The district court further criticized Devon’s failure to discover that Lauren had deceived him about the reported miscarriage, suggesting that a father should disregard the mother s warnings that he is to leave her alone and instead go to her school or place of work or inquire of her friends to determine whether she is pregnant. The Court of Appeals agreed, finding that a father may not rely on the mother’s misstatements about a miscarriage or abortion and that the father must “use all means at his disposal to investigate” a mother’s claim of miscarriage and must “use all means at his disposal to provide support for the child” once he learns of the birth. In re Adoption of Baby Girl P., 2010 WL 348291, at *3, (Kan. App. 2010) (unpublished opinion).
We disagree. We do not find in the statutory scheme a legislative call to make the assertion of paternal rights a Herculean task. The preservation of a father’s relationship with his child is the starting point of a termination proceeding, not the finish line that a father must labor to reach. The statute requires simply that a father make “reasonable efforts” to support or communicate with his child. K.S.A. 59-2136(h)(l)(C).
We have previously held that adoption statutes must be strictly construed in favor of maintaining the rights of natural parents when it is claimed that a parent has failed to fulfill parental obligations. Adoption of G.L.V., 286 Kan. 1034, Syl. ¶ 6. Setting up a series of hurdles that a parent must clear before reaching the point of a protected interest runs counter to our case law and to the statutory framework.
The record and the district court’s factual findings support the conclusion that Devon made reasonable efforts to engage with and support his daughter.
Devon had several reasons to believe that Lauren had miscarried. She explicitly told him that was the case; she earlier told him that she had experienced miscarriages in the past; and an acquaintance of hers informed Devon that she was engaging in behavior that one might not expect of a pregnant woman and that she believed Lauren was no longer pregnant. We cannot read into the statute a requirement that a father invade a mother’s privacy to determine whether she is pregnant when the father has sound reasons to believe that she is not.
Upon learning that he had a child, Devon sought visitation with his daughter, explicitly offered the custodial parents anything that they might need, and told them that he understood it was his responsibility and duty to provide for her and he was prepared to assume that responsibility. He also provided her with gifts for her first Christmas. These are the actions of a father who is attempting to maintain a relationship with his child, not the actions of a father who is neglecting his child.
The Court of Appeals suggested that an all-encompassing offer of support was not reasonable and that a father must undertake additional actions, such as setting up a special bank account for the child whom he is not allowed to support directly, to prove his willingness to provide support. We again disagree. We find nothing in the adoption statute requiring that a parent must make extraordinary displays of financial support in order to avoid a finding of neglect.
Although the statute allows the district court to disregard “incidental” parental activities, Devon’s efforts were clearly more than incidental. He retained counsel, he filed court actions to obtain visitation, he gave gifts, and he offered to give anything that was needed for his daughter’s support. As used in our adoption statutes, incidental means “casual, of minor importance, insignificant, and of little consequence.” In re Adoption of McMullen, 236 Kan. 348, Syl. ¶ 1, 691 P.2d 17 (1984). Devon’s conduct upon learning that he had a daughter was scarcely casual or insignificant. It demonstrated a commitment to assuming the role of a father.
Both the district court and the Court of Appeals improperly relied on In re Adoption of A.A.T., 287 Kan. 590, 196 P.3d 1180 (2008), cert. denied 129 S. Ct. 2013 (2009).
In A. A. T., this court emphasized the significance of the natural father not appearing at the termination hearing. The court noted that under K.S.A. 2009 Supp. 59-2136(g), in the event the father does not appear or appears but does not assert custodial rights, the factors listed in K.S.A. 2009 Supp. 59-2136(h) do not come into play. Adoption of A. AT., 287 Kan. at 624-25. Such was the case in A.A.T. In addition, the adoption had been finalized in A.A.T., 6 months before a parental interest was asserted, which abrogated operation of the parental preference doctrine that would otherwise have favored the biological father. Adoption of A. A.T., 287 Kan. at 626. By contrast, Devon made his appearance and strongly asserted his rights at the termination hearing in the present case. K.S.A. 2009 Supp. 59-2136(h) was therefore the proper statute to consider, and the adoption proceeding is still pending. “When applying K.S.A. 59-2136(h), Kansas appellate courts have strongly endorsed the parental preference doctrine, required strict compliance, and diligently enforced the clear and convincing evidence standard.” Adoption of A.A.T., 287 Kan. at 625.
A.A.T. presented a set of facts that made it the exceptional case. It does not set out a series of heroic quests that a father who appears in a pending adoption case must undertake so that he may triumphantly return bearing the prize of a relationship with his child. Instead, the law presumes that the father starts out with a parental relationship; it is his to abandon, not to conquer.
In addition to finding neglect on Devon’s part, the district court also found it to be in Baby Girl P.’s best interest to terminate Devon’s parental rights. The exact basis for this finding is unclear from the court’s order; the court apparently looked to Devon’s unwillingness to pursue Lauren aggressively to determine whether she was still pregnant. The Court of Appeals speculated that the district court also based this conclusion on a home-study report and in-court observations of the custodial parents.
In G.L.V., we held that the best interest of the child factor that was added through the 2006 amendment to the stepparent adoption portion of K.S.A. 2009 Supp. 59-2136(d) does not trump the requirement that a natural parent who has assumed his or her parental responsibilities must consent before a stepparent adoption can be granted. Adoption ofG.L.V., 286 Kan. at 1063. K.S.A. 2009 Supp. 59-2136(h) likewise sets out sequential factors that may serve as grounds for termination. It then adds in a separate section the best interest of the child as an additional factor that may be considered and weighed. As with stepparent adoptions, the best interest of the child may not be the sole basis for terminating a parent’s rights. This conclusion is consistent with the constitutional and statutory parental preference doctrine. This is the better course; to hold otherwise would invite courts to seek “better” families for any number of children whose family circumstances are challenging or financially difficult.
Because the petitioners failed to demonstrate by clear and convincing evidence any of the statutory factors listed in K.S.A. 2009 Supp. 59-2136(h)(l), we will not speculate how the district court reached the conclusion that it was in Baby Girl P.’s best interest not to live with her father. The factors that it discussed — -that Devon could have done more to find out whether a child had been bom and could have made financial arrangements for a child from whom he was legally cut off — cannot serve as the basis for termination.
Devon did not neglect his daughter. He made reasonable attempts both to support and to communicate with her. The record contains no clear and convincing evidence showing that Baby Girl P.’s best interest is not served by being part of her natural father’s family. Given the strong preference in this state to preserve the ties between natural parents and their children, we are compelled to reverse the courts below and to restore the custodial relationship between the father and his daughter.
This is a case in which the requirement of upholding the constitutionally and statutorily protected interest of one party causes trauma for other parties, including a vulnerable child. In Mississippi Choctaw Indian Band v. Holyfield, 490 U.S. 30, 53-54, 104 L. Ed. 2d 29, 109 S. Ct. 1597 (1989), the United States Supreme Court addressed the emotional toll that separating children from their custodial parents inflicts on both parents and children. We find that court’s words apt for the present case and modify them here only to fit the facts specific to our case.
Years of developing family ties cannot be undone, and a separation at this point will doubtless cause considerable pain. Had the mandates of the statutoiy process been followed in 2008, much potential anguish might have been avoided, and in any case the law cannot be applied so as to automatically “reward those who obtain custody, whether lawfully or otherwise, and maintain it during any ensuing (and protracted) litigation.” Matter of Adoption of Halloway, 732 P.2d 962, 972 (Utah 1986). It is not ours to say whether the trauma that might result from removing these children from their adoptive family should outweigh the interest of the father— and perhaps the child herself—in having her raised by her natural father. Mississippi Choctaw Indian Band, 490 U.S. at 53-54.
The decision of the Court of Appeals affirming the district court is reversed. The decision of the district court is reversed. The case is remanded to the district court for the purpose of conducting proceedings effectuating a change of custody consistent with this opinion.
In remanding this matter, this court brings to the attention of the district court the potential traumatic impact of a sudden, precipitous separation of a child from the only parents she has ever known. This is one of the fortunately rare instances where one fervently wishes that the blindness of justice had at its disposal a judicial seeing-eye dog to guide it around a required outcome which may cause harm to a child. In recognition of the unavoidable repercussions of this order, this court urges die district court to create a process, occurring over a period of time not to exceed 30 days, for a custodial transition to occur. In addition to considering the duration of any such transitional process, the district court may in its discretion also consider including the participation of appropriate professional personnel.
Paul E. Miller, District Judge, assigned.
Luckert, J.,
concurring: I concur fully with the majority opinion but write separately to emphasize the distinctions between this case and In re Adaption of A.A.T., 287 Kan. 590, 196 P.3d 1180 (2008), cert. denied 129 S. Ct. 2013 (2009). I am motivated to draw attention to the distinctions because it appears that the failure to recognize that a different analysis and statutes applied to the legal questions raised in Adoption of A.A.T. than apply to the issues raised in this case contributed to, and perhaps caused, the erroneous decisions of the district court and the Court of Appeals. By writing separately and emphasizing the differences in the two cases, I hope to prevent future reliance on Adoption of A.A.T. in cases where a natural or putative father enters an appearance and asserts parental rights during an adoption proceeding.
The Kansas Legislature has created different standards for the termination of parental rights depending on whether a father appears and asserts custodial rights before an adoption is finalized. Because of this difference in standards, a simple fact of timing can mean that two natural fathers — such as the one in this case and the one in Adoption of A.A.T — may see their quest for parental rights reach different conclusions. This is true even though both fathers were falsely told that the pregnancy had terminated, were not identified by the mothers in information provided to either the adoption agency or the court, and attempted to assert parental rights upon learning of their respective child’s birth. This difference, as we stated in Adoption of A.A.T., is because “ Timing of the father’s actions is the “most significant” element.’ ” Adoption of A.A.T., 287 Kan. at 615 (quoting Matter of Robert O. v. Russell K. 80 N.Y.2d 254, 264, 590 N.Y.S.2d 37, 604 N.E.2d 99 [1992]). Under Kansas statutes, the difference in timing means different standards apply to the decision of whether to terminate the father’s parental rights. The differences are explained by a review of the issues raised in Adoption of A.A.T., which are not issues raised in this case, and then by a review of the differences in the statutory standards.
Issues in Adoption of A. A.T. Not Raised in This Case
Because the natural father in Adoption of A. A. T. did not appear until 6 months after the adoption was finalized, the question in that case was whether the adoption was void, voidable, or should otherwise be set aside because the natural father did not receive notice of the adoption proceeding. Relying on decisions of the United States Supreme Court, we concluded that the due process rights to notice and an opportunity to be heard were not violated “as long as the state’s statutes provide a process whereby most responsible putative fathers can qualify for notice in an adoption proceeding.” Adoption of A. A.T., 287 Kan. at 614. We acknowledged that this can mean that a natural father’s opportunity to develop a parenting relationship with his child ends with the finalization of a newborn child’s adoption, even in situations where the father’s failure to fully grasp his parenting opportunity was caused by the natural mother’s fraud. Such a rule is constitutionally justified, we concluded, because of the various interests of the State in the finality of adoption decrees. The State’s interests include “providing a child stability and security early in fife, encouraging adoptions, protecting the adoption process from unnecessary controversy and complication, and protecting... [the natural mother’s] privacy and [the adoptive family’s] liberty interests.” Adoption of A. A.T., 287 Kan. at 614. As part of the analysis that led to that conclusion, we distinguished cases where the father, like Devon in this case, appeared during the adoption proceeding and asserted parental rights. Adoption of A.A.T., 287 Kan. at 619.
Reviewing the Kansas Adoption and Relinquishment Act, K.S.A. 59-2111 through K.S.A. 59-2144, we concluded in Adoption of A.A.T. that the constitutional test was satisfied by the Kansas statutes. More specifically, we focused on 59-2136(e), which provides that “[i]n an effort to identify the father, the court shall determine by deposition, affidavit or hearing” whether a parent is entitled to notice because one of six legislatively defined circumstances exists. We concluded the statute provided a process whereby most responsible putative fathers can qualify for notice in an adoption proceeding. Nevertheless, the father in Adoption of A.A.T. did not meet any of the six conditions. Adoption of A.A.T., 287 Kan. at 621.
The due process issue of whether a natural or putative father has a right to notice and the opportunity to be heard — the core issue discussed in Adoption of A. A. T. — was not at issue in this case. Devon appeared and had an opportunity to be heard in the adoption proceeding. Any overlap in the legal analysis of Adoption of A.A.T. and of this case, relates to the fact that both fathers had their parental rights terminated. But the factors and analysis related to that decision are entirely different because a different stan dard applies when a father appears during an adoption proceeding than applies when a father does not appear.
Timing Means Different Statutes Regarding Termination of Parental Rights Apply
In this case, K.S.A. 2009 Supp. 59-2136(h)(l) applies to the termination of Devon’s parental rights. That provision begins by defining the cases where it applies — “[w]hen a father or alleged father appears and asserts parental rights.” The provision then identifies a burden of proof and defines the factors to be considered by the court, stating in part:
“Thereafter, the court may order that parental rights be terminated, upon a finding by clear and convincing evidence, of any of the following:
“(A) The father abandoned or neglected the child after having knowledge of the child’s birth;
“(B) tire father is unfit as a parent or incapable of giving consent;
“(C) the father has made no reasonable efforts to support or communicate with the child after having knowledge of the child’s birth;
“(D) the father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth;
“(E) the father abandoned the mother after having knowledge of the pregnancy;
“(F) the birth of the child was the result of rape of the mother; or
“(G) the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition.
“(2) In making a finding whether parental rights shall be terminated under this subsection, the court may:
“(A) Consider and weigh the best interest of the child; and
“(B) disregard incidental visitations, contacts, communications or contributions.” K.S.A. 2009 Supp. 59-2136(h)(i).
In contrast, as we explained in Adoption of A. A.T., the Kansas Legislature has specifically stated that K.S.A. 2009 Supp. 59-2136(h) does not apply if a father does not appear. In such a case, the termination of parental rights is governed by K.S.A. 2009 Supp. 59-2136(g), which provides:
“If, after the inquiry, the court is unable to identify the father or any possible father and no person has appeared claiming to be the father and claiming custodial rights, the court shall enter an order terminating the unknown father’s parental rights with reference to the child without regard to subsection (h). If any person identified as the father or possible father of the child fails to appear or, if ap pearing, fails to claim custodial rights, such person’s parental rights with reference to the child shall be terminated without regard to subsection (h).” (Emphasis added.)
Hence, the statutory provision that controls the outcome of this case was not part of the analysis in Adoption of A.A.T. Moreover, as we further explained in the Adoption of A.A.T., the inapplicability of59-2136(h) to an analysis also means that several principles from our case law do not apply. Citing a long line of cases, we noted: “When applying K.S.A. 59-2136(h), Kansas appellate courts have strongly endorsed the parental preference doctrine, required strict compliance, and diligently enforced the clear and convincing evidence standard.” Adoption of A.A.T., 287 Kan. at 625. In contrast, we concluded, the parental preference doctrine did not apply to terminations occurring under 59-2136(g). See Adoption of A.A.T., 287 Kan. at 626.
The difference in the analytical framework is enormous. The outcome of this case is determined by the parental preference doctrine and the factors of K.S.A. 2009 Supp. 59-2136(h), neither of which had any impact on the termination of the father s parental rights in Adoption of A.A.T. I believe it is very likely that if the parental preference doctrine and the factors of K.S.A. 2009 Supp. 59-2136(h) had applied to the decision of whether the parental rights of the natural father in the Adoption of A.A.T. should have been terminated, the outcome of that appeal may have been the same as in this case. But that question was not decided because neither the doctrine nor the factors applied. Rather, because the father in Adoption of A.A.T. did not appear, under K.S.A. 2009 Supp. 59-2136(g), his parental rights were subject to termination with no further showing.
Finally, although there is some overlap among the statutory provisions indicating when notice must be given under K.S.A. 2009 Supp. 59-2136(e) and the factors for termination stated in K.S.A. 2099 Supp. 59-2136(h), we noted in Adoption of A.A.T. that the father in that case did not argue he met the criteria of 59-2136(e). Hence, the Adoption of A.A.T. court did not undertake a factual analysis. Consequently, even in that regard, courts should be cautious in relying on Adoption of A.A.T., especially in light of the differences in statutory language. Compare K.S.A. 2009 Supp. 59-2136(e)(5) (“whether the mother has received support payments or promises of support with respect to the child or in connection with such mothers pregnancy”) with K.S.A. 2009 Supp. 59-2136(h)(1)(D) (“the father, after having knowledge of the pregnancy, failed with reasonable cause to provide support for the mother during the six months prior to the child’s birth”).
The decision and rationale of Adoption of A. A. T. should be limited to the legal question presented there: Whether a finalized adoption should be set aside because the natural father did not receive notice of the adoption proceeding. The reasoning and holding should not be extended to determinations of whether a natural father who appears before an adoption is finalized and asserts his parental rights should have those rights terminated. | [
-48,
110,
-43,
60,
26,
34,
47,
91,
18,
-93,
119,
-45,
-81,
-54,
-108,
105,
-100,
47,
-31,
107,
83,
-77,
7,
-32,
-16,
-14,
-16,
-48,
-79,
93,
116,
93,
68,
112,
-118,
-43,
98,
11,
-48,
-44,
-122,
30,
-87,
-19,
-48,
-126,
54,
107,
90,
10,
117,
-114,
-25,
42,
57,
-41,
12,
14,
-37,
-71,
-124,
-8,
-113,
22,
-4,
66,
-79,
20,
-80,
-121,
-40,
46,
-104,
-72,
0,
-24,
-14,
-76,
-106,
124,
65,
-115,
29,
97,
106,
16,
12,
-12,
-13,
25,
111,
-42,
-115,
-90,
-104,
88,
3,
111,
-66,
-4,
92,
84,
43,
-8,
-93,
-116,
63,
-32,
2,
-117,
-10,
-119,
13,
58,
84,
17,
-10,
-27,
33,
97,
-57,
-96,
84,
4,
58,
-45,
-98,
-10
] |
The opinion of the court was delivered by
Johnson, J.:
Anthony Divine directly appeals from the district court’s determination that he must continue to register as a sex offender despite an expungement of the conviction for which he was required to register. Finding that the expungement provisions of K.S.A. 2010 Supp. 21-4619 do not provide for the disclosure of the expunged offense through sex offender registration, we reverse.
Factual Overview
In 2003, Divine pled guilty to lewd and lascivious behavior. The district court convicted Divine and placed him on probation. Thereafter, pursuant to the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., Divine was required to register as a sex offender for 10 years. In addition, the registration requirement was made a condition of Divine’s probation. Ultimately, Divine successfully completed his probation in 2005. He continued to register as a sex offender.
Some 3 years after completing probation, Divine filed a petition for expungement of the lewd and lascivious conviction. Apparently, the court did not conduct a formal hearing on the petition but rather it accepted and executed a journal entry which had been approved by the prosecutor and defense counsel. The expungement order was filed November 26, 2008.
Thereafter, Divine filed a motion to lift the registration requirement, arguing that the expungement had erased the conviction for which he was required to register. The State responded that the district court lacked jurisdiction to address the issue because Divine was statutorily required to register because of the conviction, rather than as a condition of probation. The district court found that K.S.A. 22-4908 prevented the court from granting Divine’s motion. Divine was ordered to continue registering as a sex offender until July 8, 2013.
Divine filed a timely notice of appeal to the Court of Appeals. This court transferred the appeal on its own motion, pursuant to K.S.A. 20-3018(c).
Sex Offender Registration After Expungement
A. Standard of Review
Resolution of this appeal will require us to interpret the expungement provisions of K.S.A. 2010 Supp. 21-4619, as well as various provisions of the KORA. The interpretation of a statute is a question of law over which this court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010); Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
B. Analysis
Divine acknowledges that his conviction for lewd and lascivious behavior triggered the requirement that he register as a sex of fender. See K.S.A. 2010 Supp. 22-4902. Likewise, he does not contest that the initial period of required registration was 10 years from the conviction date. See K.S.A. 2002 Supp. 22-4906. However, Divine argues that, after the expungement, he no longer has a conviction which would make him an offender under the KORA.
Divine focuses on the expungement statute. Specifically, he points to the language in K.S.A. 2010 Supp. 21-4619(f), which provides that “[a]fter the order of expungement is entered, the petitioner shall be treated as not having been arrested, convicted or diverted of the crime.” The suggestion is that if he is to be treated as not having been convicted of lewd and lascivious behavior then he is not an offender required to register under the KORA definitions. See K.S.A. 2010 Supp. 22-4902(a) (defining the crimes which make an offender subject to the sex offender registry). A plain reading of the statute’s statement of the general effect of expungement supports that argument.
Divine acknowledges that the expungement directive — that he shall be treated as not having been convicted — is followed by a list of exceptions describing the circumstances under which the expunged conviction may be considered or where the petitioner must disclose that the conviction occurred. Divine correctly points out that the list does not include ail exception for disclosure to the sexual offender registry. He contends that our decision in State v. Riedel, 242 Kan. 834, 752 P.2d 115 (1988), stands for the proposition that an expunged conviction may only be used for the very specific and express purposes fisted within the expungement statute.
Divine may be reading too much into the holding in Riedel. That case considered the specific exception in K.S.A. 1987 Supp. 21-4619(f)(4), which allows disclosure of the expunged conviction in a subsequent prosecution for an offense which requires as an element a prior conviction of the type expunged. Riedel simply clarified that the 21-4619(f)(4) exception does not permit the State to use an expunged conviction for K.S.A. 60-455 prior crimes purposes if a prior conviction is not an element of the crime being prosecuted. Nevertheless, we agree that we should not read a KORA registration exception into K.S.A. 2010 Supp. 21-4619(f) when such an exception is not readily found in the expungement statute. See State v. Trautloff, 289 Kan. 793, 796-97, 217 P.3d 15 (2009) (appellate court will not read into plain and unambiguous statute something not readily found in it; criminal statutes strictly construed in favor of accused).
In response, the State focuses on the Offender Registration Act. It specifically points to the provision in K.S.A. 22-4908, which states: “No person required to register as an offender pursuant to the Kansas offender registration act shall be granted an order relieving the offender of further registration under this act.” Previously, K.S.A. 2000 Supp. 22-4908(d) had provided a procedure for registrants to seek relief from the registration requirement through the district court. In a 2001 amendment, the legislature deleted the relief provision, suggesting a legislative intent to deny a district court the authority to reduce the 10-year registration period once it had been triggered by the qualifying conviction. See L. 2001, ch. 208, sec. 15. Accordingly, when the motion to lift the registration requirement is viewed in isolation, the State is correct in asserting that the district court did not have the authority, acting alone, to grant Divine relief from the registration requirement.
However, the question is whether Divine’s registration requirement was extinguished as a matter of law when his conviction was expunged, prior to the filing of his motion for relief. If so, Divine was not relying on the good graces of the district court to obtain relief. The district court’s declaration of the legal consequences of expungement would not have been a proscribed “order relieving the offender of further registration under [KORA].” K.S.A. 22-4908. Relief would have flowed from the expungement statute, not from a court order.
The State does not rely on an argument challenging the concept that an expungement of the conviction which invoked KORA effects a termination of the registration requirement. Instead, the State collaterally attacks the expungement order entered in this case. Specifically, the State complains that Divine’s expungement petition did not contain all of the statutorily required information, e.g., the date of conviction; that Divine failed to give notice to law enforcement; that the court failed to conduct a public hearing; and that Divine did not raise the registration issue in the expungement proceedings.
The short answer to the State’s expungement order challenge is that the issue is not properly before this court. The State did not timely appeal the expungement order. See K.S.A. 60-2103(a) (appeal from judgment effected by filing notice of appeal within 30 days of entry of judgment). Likewise, the State did not file a cross-appeal in this proceeding. See K.S.A. 60-2103(h) (appellee must file notice of cross-appeal within 20 days after service of appellant’s notice of appeal). Additionally, the State participated in any procedural errors in the district court by agreeing to submit the matter on an approved journal entry. See Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 296, 64 P.3d 357 (2003) (parly may not invite error and then complain of that error on appeal); but cf. In re Tax Appeal of Professional Engineering Consultants, 281 Kan. 633, 639, 134 P.3d 661 (2006) (invited error rule inapplicable where error is jurisdictional). The State’s attempt to circumvent these impediments by characterizing the technical errors as jurisdictional is unavailing; the district court had jurisdiction to enter the expungement order even if the alleged errors occurred.
The State’s argument that Divine should have raised the registration issue in the expungement proceeding is contradicted by the structure of the expungement statute. Pursuant to K.S.A. 2010 Supp. 21-4619(f), the general rule is that an expungement order results in the petitioner being treated as not having been convicted. The exceptions to that general rule are specifically set forth in the statute. The legislature could have, but did not, specify an exception for KORA registration. However, the legislature did provide that “the court, in the order of expungement, may specify other circumstances under which the conviction is to be disclosed.” K.S.A. 2010 Supp. 21-4619(f)(3). If the State wanted Divine to continue to disclose his expunged conviction through the sex offender registry, it was free to request that additional exception under K.S.A. 2010 Supp. 21-4619(f)(3). It is counterintuitive to expect a petitioner to request that the court add a special exception to the general effect of the requested expungement order.
The State attempts to justify its failure to request a special exception by suggesting that the prosecutor approving the expungement order simply did not realize the general effect of that order on Divine’s registration requirement. That argument does not advance the State’s cause. As the State asserts in its own brief, citing to State v. Anderson, 40 Kan. App. 2d 69, 71, 188 P.3d 88 (2008), “ignorance of the law is no excuse.”
In conclusion, we find that the expungement of Divine’s lewd and lascivious conviction terminated his status as an offender required to register under KORA. The expungement statute does not provide an exception for the disclosure of the expunged conviction through KORA registration, and the expungement order in this case did not make such disclosure a special exception under K.S.A. 2010 Supp. 21-4619(f)(3). The district court should have found that Divine’s registration requirement terminated as a matter of law, and such an order would not have run afoul of K.S.A. 22-4908.
The district court is reversed. The matter is remanded with directions to the district court to rescind its order that Divine must register until July 8, 2013, and to enter an order that Divine’s registration requirement has terminated as a matter of law.
Reversed and remanded with directions.
Mike Keeley, District Judge, assigned. | [
-112,
-20,
-99,
-100,
8,
96,
34,
-100,
50,
-109,
38,
83,
47,
-118,
4,
123,
-101,
63,
84,
113,
-41,
-77,
103,
-120,
46,
-5,
-40,
85,
-79,
95,
102,
-3,
8,
-80,
10,
53,
-26,
-54,
8,
88,
-122,
7,
-104,
-43,
83,
75,
36,
43,
79,
10,
117,
26,
-77,
90,
26,
-61,
105,
44,
-101,
-71,
112,
-119,
-87,
-105,
111,
38,
-77,
4,
-68,
-123,
-16,
-82,
-104,
25,
0,
-20,
-37,
22,
-114,
-12,
79,
-117,
-95,
102,
98,
33,
29,
-25,
-68,
-127,
15,
127,
-67,
-90,
-103,
72,
98,
12,
-76,
61,
108,
20,
39,
124,
-25,
-124,
47,
40,
-119,
-50,
-72,
-101,
79,
48,
14,
25,
-5,
-91,
16,
117,
-59,
-32,
84,
-57,
122,
19,
-90,
-15
] |
The opinion of the court was delivered by
Beier, J.;
This case arises on petition for review from the Court of Appeals’ dismissal of defendant Eric Huerta’s sentencing appeal for lack of jurisdiction under the authority of K.S.A. 21-4721(c)(l). Huerta challenges the constitutionality of this statute, arguing for reversal and remand to the Court of Appeals for consideration of each of his issues on the merits.
Huerta was sentenced to consecutive presumptive sentences totaling 372 months’ imprisonment after his guilty pleas in two multiple-felony cases. He argued in his brief to the Court of Appeals that the State violated due process by presenting false information during his sentencing hearing, that his sentence was disproportionate to his co-defendant’s sentence, and that the State impermissibly urged the sentencing judge to rely on his post-arrest si lence. Given the dismissal of Huerta’s appeal, the Court of Appeals did not reach the merits of any of Huerta’s arguments. The Court of Appeals also denied Huerta’s motion to reinstate his appeal.
In his petition for review to this court, Huerta argued that the dismissal under K.S.A. 21-4721(c)(l) violated due process and equal protection. He also asserted that, when a sentencing appeal relies on a constitutional argument, as at least two of his issues do, even a sentence that falls within a presumptive grid box is not truly “presumptive.” Huerta cited our decision in State v. Johnson, 286 Kan. 824, 190 P.3d 209 (2008), to support this last position; he also cited State v. Dillon, 44 Kan. App. 2d 1138, 244 P.3d 680 (2010), during oral argument before this court.
Constitutional questions such as those posed by Huerta here raise issues of law, and this court’s review is unlimited. Johnson, 286 Kan. at 842 (construction of Kansas Sentencing Guidelines Act [KSGA], determination of constitutionality of provisions questions of law). Moreover, this case requires us to interpret K.S.A. 21-4721(c).
“When courts are called upon to interpret statutes, the fundamental rule governing our interpretation is that ‘the intent of the legislature governs if that intent can be ascertained. The legslature is presumed to have expressed its intent through the language of the 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 K.M.H., 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).” Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, 754-55, 189 P.3d 494 (2008).
This court has further stated:
‘Where a statute’s language is subject to multiple interpretations, however, a reviewing court ‘may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the 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 legslature 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 the legslature’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 the 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.
The Statute at Issue
K.S.A. 21-4721(c)(l) states: “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 that is within the presumptive sentence for the crime.” K.S.A. 21-4703(q) defines “presumptive sentence” as “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 histoiy.”
Equal Protection
Huerta contends that K.S.A. 21-4721(c)(l) violates the Equal Protection Clause of the United States Constitution, and he provides two examples to demonstrate.
First, Huerta argues, under K.S.A. 21-4721(e)(l), a defendant could appeal a departure sentence resulting from partiality, prejudice, oppression, or corrupt motive — e.g., a sentencing court imposes an upward departure on an African-American defendant because of racial prejudice. But K.S.A. 21-4721 would not permit an appellate court to review the imposition of a presumptive sentence, even if the sentence is based on that same racial bias. Huerta contends that there is no rational basis to permit an appellate court to review a departure sentence based on partiality, prejudice, oppression, or corrupt motive while denying it the opportunity to review a presumptive sentence resulting from the same partiality, prejudice, oppression, or corrupt motive.
Second, Huerta argues that this court has reviewed a claim that consecutive presumptive misdemeanor sentences were disproportionate and violated the Eighth Amendment. He cites State v. Snow, 282 Kan. 323, 346-47, 144 P.3d 729 (2006), in which we applied an abuse of discretion standard when the appellant complained not that a statute was unconstitutional, but that his particular sentence was unconstitutional. Huerta asserts that there is no rational basis to prohibit review of a constitutional challenge to consecutive presumptive felony sentences.
Our first step in equal protection analysis is determination of whether the legislative classification at issue results in arguably indistinguishable classes of individuals being treated differently. Only if there is a differential treatment of similarly situated individuals is the Equal Protection Clause implicated. State v. Salas, 289 Kan. 245, 248, 210 P.3d 635 (2009) (citing Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 [1985] [guiding principle of equal protection analysis is that similarly situated individuals should be treated alike]; Hodges v. Johnson, 288 Kan. 56, 72, 199 P.3d 1251 [2009]; State v. Denney, 278 Kan. 643, 652, 101 P.3d 1257 [2004]). This court has recognized that it is the burden of the party raising an equal protection complaint to demonstrate that he or she is similarly situated to others treated differently. Salas, 289 Kan. at 249.
Unless a party meets his or her “similarly situated” burden, we do not move to our second step in equal protection analysis, i.e., determination of the nature of the rights affected by the classification and thus the level of scrutiny applied: strict scrutiny, intermediate scrutiny, or rational basis. Salas, 289 Kan. at 248-49. We note, however, that this court has applied the rational basis test to an Equal Protection Clause challenge to a criminal statute. State v. Denney, 278 Kan. 643, 651-52, 101 P.3d 1257 (2004). If a litigant has not demonstrated himself or herself to be similarly situated to those in a favored group, we also do not move to the last step of equal protection analysis, i.e., application of the appropriate level of scrutiny to determine whether a classification passes muster. Salas, 289 Kan. at 249.
A preliminary note is necessary before we turn to whether Huerta is similarly situated to defendants permitted under K.S.A. 21-4721(e)(l) to challenge departure sentences as the products of partiality, prejudice, oppression, or corrupt motive.
Defendants such as Huerta used to be permitted to appeal on the same grounds as those subject to departure sentences. A 1995 statutory amendment altered the language of K.S.A. 21-4721(e)(l). See K.S.A. 1994 Supp. 21-4721(e)(l); State v. Flores, 268 Kan. 657, 658,999 P.2d 919 (2000). Before the amendment, Kansas appellate courts also reviewed presumptive sentences for partiality, prejudice, oppression, or corrupt motive. See, e.g., State v. Windom, 23 Kan. App. 2d 429, 430-31, 932 P.2d 1019, rev. denied 262 Kan. 969 (1997); State v. Clark, 21 Kan. App. 2d 697, 699-700, 907 P.2d 898 (1995), rev. denied 259 Kan. 928 (1996); State v. Bost, 21 Kan. App. 2d 560, 571-72, 903 P.2d 160 (1995); State v. Peal, 20 Kan. App. 2d 816, 821-22, 893 P.2d 258, rev. denied 257 Kan. 1095 (1995); State v. Myers, 20 Kan. App. 2d 401, 403, 888 P.2d 866 (1995); State v. Starks, 20 Kan. App. 2d 179, 183, 885 P.2d 387 (1994). After the amendment, this court determined that appellate courts no longer had jurisdiction to review appeals of presumptive sentences, even if those appeals were based on claims of partiality, prejudice, oppression, or corrupt motive. Flores, 268 Kan. at 659.
There is no pertinent legislative history explaining the reasoning behind the 1995 amendment of K.S.A. 21-4721(e). In the absence of such evidence of legislative intent, we presume an alteration to statutory language to effect a substantive change in the law. See State v. Preston, 287 Kan. 181, 184, 195 P.3d 240 (2008). Here, that means that the legislature intended to remove presumptive sentences from the ambit of appellate review.
At oral argument, Huerta contended that, had he merely moved unsuccessfully for downward departure, then an appellate court could have reviewed his sentence under K.S.A. 21-4721. But the factual premise of this comparison is inaccurate. K.S.A. 21-4721(a) provides: “A departure sentence is subject to appeal by the defendant or the state.” (Emphasis added.) Merely moving for a departure sentence does not grant the right of appeal to a defendant, if the result of the motion is a presumptive sentence. See K.S.A. 21-4721(c)(l). The only defendants permitted to appeal are those sentenced to an upward departure on the State’s motion or the court’s notice, see K.S.A. 21-4721(d) and (e), K.S.A. 21-4718(a)(3) and (b)(1), or those who seek a downward departure to a specific term and who receive the departure but to a term longer than the one sought, see K.S.A. 21-4721(d). It is these defendants to whom Huerta must demonstrate he is similarly situated.
We hold that he has not done so.
The process for arriving at a departure is completely different from that for arriving at a presumptive sentence. In imposing a departure sentence, the sentencing court must state on the record at the time of sentencing the substantial and compelling reasons for the departure. K.S.A. 21-4716(a). In addition, when an upward durational departure is under consideration, “any fact that would increase the penalty for a crime beyond the statutory maximum, other than a prior conviction, shall be submitted to a jury and proved beyond a reasonable doubt.” K.S.A. 21-4716(b). An appellate court’s review of a departure sentence is limited to whether the sentencing court’s findings of fact are supported by substantial competent evidence and whether the factors they underlie are substantial and compelling reasons for departure. K.S.A. 21-4721(d); State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008). There is significant latitude for a sentencing judge’s exercise of discretion. See State v. Favela, 259 Kan. 215, 243-44, 911 P.2d 792 (1996).
On the other hand, when handing down a presumptive sentence, the discretion of the sentencing judge is narrowly circumscribed. K.S.A. 21-4704 requires the court to impose one of three sentences within the Kansas Sentencing Guidelines Act’s drug or nondrug grid box, which contains a lower, middle, and upper number for the term of months. Selection of one of those numbers does not require the court to state any particular findings on the record. See Johnson, 286 Kan. at 851-52. Indeed, the principal point of enacting the KSGA was “ ‘to standardize sentences so that similarly situated offenders would be treated the same, thus limiting the effects of racial and geographic bias.’ ” State v. Paul, 285 Kan. 658, 667, 175 P.3d 840 (2008) (quoting State v. Bandy, 25 Kan. App. 2d 696, 699, 971 P.2d 749 [1998]).
We acknowledge the emotional appeal of Huerta’s hypothetical concerning an overtly racist judge imposing the top number in a grid box for no reason other than his or her prejudice against a minority defendant. But emotional appeal cannot appellate jurisdiction make. And, as we have held before, the legislature generally can delineate the boundaries of appellate jurisdiction. Gleason v. Samaritan Home, 260 Kan. 970, Syl. ¶ 5, 926 P.2d 1349 (1996). Here, it appears to have made a deliberate choice in 1995 to eliminate appeals of presumptive sentences, even if they result from partiality, prejudice, oppression, or corrupt motive. Given the protections from sentencing judge discretion run amok inherent in the KSGA’s grid ranges, that choice does not cross a constitutional line.
Because we do not find that Huerta is similarly situated to those defendants who receive departure sentences, we do not reach the remaining two steps of equal protection analysis on his first argument.
Huerta’s second equal protection argument depends upon his being similarly situated to the defendant in Snow, who was given, inter alia, consecutive presumptive sentences for multiple misdemeanors and whose disparate sentencing appeal was considered on its merits.
This second equal protection argument also fails.
In Snow, the defendant was convicted of several felonies and misdemeanor offenses, and the sentencing court ordered his sentences for each offense to run consecutively to one another. Because of K.S.A. 21-4720(b), his total sentence for the felonies was limited to twice the base felony sentence. But K.S.A. 21-4720(b) does not apply to misdemeanor sentences, and his consecutive misdemeanor sentences were not truncated. The defendant therefore advanced a sentencing disparity argument on appeal, asserting that, had he committed all felony-level offenses rather than some misdemeanor-level offenses, his total sentence would have been shorter. Snow, 282 Kan. at 346-47.
This court recognized that the Snow defendant was not arguing that the sentencing statutory scheme was unconstitutional; rather, he was arguing that his particular sentence was unconstitutional. We relied on an abuse of discretion standard, 282 Kan. at 347, and held that the misdemeanor sentences were not grossly disproportionate under the Eighth Amendment. We declined to analyze his challenge to his misdemeanor sentences any further. Snow, 282 Kan. at 348 (citing Lockyer v. Andrade, 538 U.S. 63, 73, 123 S. Ct. 1166, 155 L. Ed. 2d 144 [2003]; Ewing v. California, 538 U.S. 11, 23-24, 123 S. Ct. 1179, 155 L. Ed. 2d 108 [2003]).
Snow cannot help Huerta. The defendant in Snow had been sentenced for multiple felonies and multiple misdemeanors, and it was the combination of felony sentences and misdemeanor sentences that triggered appellate review. In addition, application of K.S.A. 21-4721(c)(l) to prevent consideration of the consecutive presumptive misdemeanor sentences was not raised or argued in Snow; consequently, it was not the focus of this court’s decision. We hold that Huerta and the defendant in Snow are not similarly situated; without that threshold determination, we do not proceed with equal protection analysis based on Snow.
Due Process
In his petition for review to this court, Huerta devoted only a couple of sentences to his due process argument, claiming that the Court of Appeals’ dismissal of his appeal under K.S.A. 21-4721(c)(1) without consideration of the merits was unfair and arbitrary. He did not engage in either a full substantive or a full procedural due process analysis. Indeed, he did not elaborate on his due process claim at all. Further, his counsel made no mention of a due process claim at oral argument before this court. Mere characterizations of a statute’s application as “unfair” and “arbitrary” do not constitute a sufficient due process argument, and we hold that Huerta has abandoned this issue on appeal. See State v. Holmes, 278 Kan. 603, 622, 102 P.2d 406 (2004) (issue not adequately briefed deemed abandoned).
Johnson and Dillon
Huerta has also argued that the Court of Appeals had jurisdiction to decide the merits of this appeal because he raised constitutional claims. He contends that, under the recent Court of Appeals decision in State v. Dillon, 44 Kan. App. 2d 1138, 244 P.3d 680, (2010), and our decision in State v. Johnson, 286 Kan. 824, 190 P.3d 209 (2008), a sentence that violated the constitution does not qualify as “presumptive” and therefore an appellate court has jurisdiction to hear the merits of a defendant’s appeal.
In Dillon, the defendant argued that the district judge failed to consider the proportionality of his individual sentence. The Court of Appeals stated that, in determining jurisdiction, it was faced with three questions: (1) Did the district judge consider the argument defendant made in his departure motion? (2) If not, did the district judge’s failure to consider that argument deny defendant due process? and (3) If the answer to the first two questions was yes, did the district judge’s violation of defendant’s due process rights at sentencing provide an exception to the general rule that this court has no jurisdiction to consider the appeal of a presumptive sentence? 44 Kan. App. 2d at 1140. The Court of Appeals concluded that the district judge failed to consider defendant’s argument regarding individual proportionality, that the failure denied defendant due process, and that this violation of due process provided an exception to K.S.A. 21-4721(c). The Court of Appeals relied on Johnson to conclude that, “[w]hen the district court’s sentencing procedures violate the constitution, the sentence is not considered a presumptive sentence.” 44 Kan. App. 2d at 1144 (citing Johnson, 286 Kan. at 841-42).
Dillon substantially overread our decision in Johnson. Johnson was a challenge to the statutory scheme for sentencing, arguing that the discretion granted a sentencing judge to assign the upper grid box term without requiring additional fact-finding by a jury violated Apprendi, v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Johnson, 286 Kan. at 840. In other words, the defendant in Johnson mounted a facial challenge to the design of the KSGA; his argument was not limited to his case alone. Johnson, 286 Kan. at 842. We concluded that the sentencing scheme did not violate Apprendi; and, because Johnson’s individual sentence was presumptive, we did nothing further, concluding that we had no jurisdiction under K.S.A. 21-4721(c)(l). Johnson, 286 Kan. 851-52.
We have conducted the same type of analysis of the overall statutory scheme for sentencing and come to similar conclusions in cases other than Johnson. See State v. Bramlett, 273 Kan. 67, 67-68, 41 P.3d 796 (2002) (imposition of consecutive sentences does not violate Apprendi; court without jurisdiction to review presumptive sentences); State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002) (use of criminal history score to impose presumptive sentence does not violate Apprendi; court without jurisdiction to review presumptive sentences). In contrast, we do not review cases such as Huerta’s on direct appeal, when a defendant merely argues that his or her individual presumptive sentence has a constitutionally based infirmity. See State v. Clemons, 273 Kan. 328, 343-44, 45 P.3d 384 (2002) (court without jurisdiction to review presumptive sentence, when defendant argued sentence constituted cruel, unusual punishment).
Dillon also relied on a prior Court of Appeals decision, State v. Cisneros, 42 Kan. App. 2d 376, 212 P.3d 246 (2009), which it read to grant appellate jurisdiction to review a presumptive sentence when the district judge had misunderstood the limits of his or her discretion in sentencing after a revocation of probation. Dillon, 44 Kan. App. 2d at 1145. In Cisneros, the defendant appealed because the district judge believed he had no power to reduce Cisneros’ sentence upon a probation revocation, despite language to the contrary in K.S.A. 22-3716(b). The Court of Appeals determined that this was a question of law over which it had jurisdiction. 42 Kan. App. 2d at 379. The court went on to state that, if it dismissed Cisneros’ appeal for lack of jurisdiction under K.S. A. 21-4721(c)(l), “then Cisneros would have no remedy to determine whether the district court properly applied K.S.A. 22-3716(b) in his case.” 42 Kan. App. 2d at 379. Cisneros is plainly factually and procedurally distinct from the situation before the Court of Appeals in Dillon, and Dillons reliance on Cisneros was misplaced.
We also observe that the Dillon panel looked to the merits of Dillon’s appeal to determine whether the Court of Appeals had jurisdiction rather than determining the existence of jurisdiction before considering the merits. If subject matter jurisdiction is in question, that issue needs to be resolved first. The merits come second. See, e.g., In re Adoption of Baby Girl P., 291 Kan. 424, 428-29,242 P.3d 1168 (2010) (jurisdiction a preliminary matter for court to consider); Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010) (jurisdiction a preliminary question for court to consider before addressing issues argued by parties).
Finally, do our holdings in this case leave a defendant who believes there has been constitutional error in arriving at his or her individual presumptive sentence but who does not challenge the facial constitutionality of the sentencing scheme with no remedy? No, not necessarily. It may be that constitutional error so infects the sentence that it qualifies as illegal under K.S.A. 22-3504; State v. Pennington, 288 Kan. 599, 601, 205 P.3d 741 (2009). And a motion under K.S.A. 60-1507 remains an option, albeit one with additional hurdles for the movant to overcome.
Affirmed. | [
84,
-22,
-9,
28,
11,
96,
43,
28,
51,
-29,
100,
83,
45,
-101,
5,
123,
123,
127,
117,
105,
-59,
-73,
119,
-55,
-74,
-5,
-48,
-44,
-78,
78,
-25,
-4,
78,
112,
-54,
-43,
38,
-54,
99,
84,
-118,
1,
-119,
-47,
-48,
-128,
36,
15,
90,
14,
49,
15,
-13,
42,
26,
-62,
-56,
44,
91,
-67,
1,
-103,
-34,
-113,
75,
16,
-93,
-124,
-102,
3,
80,
54,
-100,
121,
3,
-20,
-13,
-106,
-122,
-75,
79,
-103,
1,
102,
98,
33,
61,
-30,
-84,
-87,
30,
31,
-99,
-89,
-104,
88,
99,
36,
-106,
-39,
117,
86,
43,
-2,
-25,
4,
127,
108,
-115,
-114,
-112,
-111,
-49,
117,
-126,
-13,
-21,
37,
-112,
97,
-52,
-26,
93,
-25,
123,
91,
-34,
-76
] |
In a letter dated November 19, 2010, addressed to the Clerk of the Appellate Courts, respondent Dale E. Lovelace, of Kansas City, Missouri, 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 (2010 Kan. Ct. R. Annot. 362).
The respondent was previously indefinitely suspended by this court on May 16, 2008. In re Lovelace, 286 Kan. 266, 182 P.3d 1244 (2008). At the time the respondent surrendered his license, a complaint had been docketed by the Disciplinary Administrator’s office as á result of the respondent’s disbarment by the Missouri Supreme Court on July 16, 2010.
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 Dale E. Lovelace be and 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 Dale E. Lovelace 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 (2010 Kan. Ct. R. Annot. 370). | [
-80,
-23,
-34,
13,
12,
67,
-80,
61,
81,
-45,
39,
83,
111,
-38,
0,
123,
-61,
125,
117,
123,
-59,
-74,
119,
-32,
-26,
-13,
-47,
-60,
-71,
-33,
-28,
-75,
93,
56,
26,
-35,
70,
-118,
-59,
-40,
-58,
0,
9,
-8,
88,
-55,
52,
41,
2,
11,
17,
-98,
-14,
42,
59,
67,
-120,
44,
-53,
-123,
81,
-111,
-103,
21,
126,
5,
-79,
36,
-100,
-121,
88,
47,
-104,
-71,
9,
-4,
51,
-74,
-122,
118,
79,
-101,
44,
103,
114,
33,
17,
-17,
-76,
-88,
15,
122,
-99,
-30,
-39,
88,
97,
-120,
-98,
-35,
117,
22,
11,
-4,
38,
7,
31,
108,
14,
-50,
-44,
-109,
-50,
119,
-114,
27,
-5,
-121,
0,
84,
-107,
100,
92,
67,
48,
31,
-50,
-12
] |
In a letter received by the Clerk of the Appellate Courts on September 14, 2010, respondent Samuel P. Logan, of Overland Park, Kansas, 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 (2009 Kan. Ct. R. Annot. 353).
On July 22, 2010, the respondent was charged with two felonies in the United States District Court for the District of Kansas. The crimes charged are 18 U.S.C. § 2252(a)(2) (2006), certain activities relating to material involving the sexual exploitation of minors, and 18 U.S.C. § 2252(a)(2) (2006), coercion and enticement. These two charges were pending at the time the respondent surrendered his license to practice law.
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 Samuel P. Logan 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 Samuel P. Logan 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 (2009 Kan. Ct. R. Annot. 361). | [
-112,
-22,
-4,
61,
62,
96,
-78,
-68,
-103,
-45,
119,
83,
-19,
-54,
4,
123,
-61,
125,
53,
123,
-51,
-74,
118,
-64,
-94,
-13,
-39,
-44,
-80,
79,
-28,
-67,
73,
48,
90,
-43,
6,
-118,
-31,
88,
-122,
4,
9,
-16,
90,
-127,
52,
41,
82,
11,
49,
-98,
-77,
42,
26,
65,
-24,
44,
-53,
-19,
-47,
-107,
-103,
21,
93,
18,
-79,
36,
28,
-115,
72,
107,
-120,
-71,
0,
-3,
51,
54,
6,
-10,
79,
-69,
-95,
102,
98,
33,
17,
-81,
-68,
-56,
46,
58,
-99,
-30,
-111,
72,
67,
-120,
-106,
-99,
101,
20,
3,
-6,
-25,
70,
29,
108,
-97,
-54,
-48,
-77,
-114,
119,
-114,
27,
-5,
-122,
16,
85,
-43,
-27,
74,
87,
56,
-109,
-114,
-11
] |
The opinion of the court was delivered by
Rosen, J.:
George Sitlington appeals his conviction of one count of rape of his granddaughter when she was between the ages of 4 and 7, in violation of K.S.A. 2004 Supp. 21-3502. The Court of Appeals affirmed his conviction, and this court granted review.
We adopt the following statement of facts from the Court of Appeals’ unpublished opinion:
“In 2003, 7-year-old M.S. was removed from her parents’ custody and placed with her maternal grandmother, who eventually became M.S.’s permanent guardian. In December 2005, M.S. told her grandmother that Sitlington, her [paternal] grandfather, had raped her in the past and she wanted him to go to jail.
“M.S.’s grandmother took M.S. to the police station, where M.S. told Detective Tammy Moews that Sitlington raped her in his trailer. M.S. said the first rape occurred in July or August 2001, just before she turned 5. According to M.S., she had fallen asleep in her clothes on a couch in Sitlington’s living room and when she awoke, she was naked, her legs had been spread apart, and Sitlington was laying on top of her, ‘sticking his thing inside of her like when people malee babies.’ M.S. told Moews that ‘white gushy stuff came out of it’ — apparendy referring to ejaculation. M.S. further reported to Detective Moews that when she was 7, she fell asleep in Sitlington’s trailer and the same thing happened. M.S. said Sitlington threatened to kill her if she told anyone.
“Shortly after interviewing M.S., Detective Moews interviewed Sitlington at his home. Sitlington denied that M.S. had ever spent the night at his house, and when Moews asked Sitlington why M.S. would say that Sitlington had sex with her, Sitlington ‘began laughing and said the word “sex.” Sitlington asked no other questions about what M.S. had said, nor did he express concern about her well-being or the investigation.’ ” State v. Sitlington, No. 99,266, unpublished opinion filed February 20, 2009, slip op. at 2-3.
The original complaint was filed against George Sitlington on June 22, 2006. In an amended complaint filed August 31, 2006, Sitlington was charged with one count of rape of a child under the age of 14, a severity level 1 person felony, contrary to K.S.A. 2004 Supp. 21-3502(a)(2). This crime is alleged to have occurred between June 1, 2001, and August 12, 2004.
A jmy trial was held in June 2007. M.S., then 10 years old, testified that Sitlington had raped her on two occasions. M.S. testified that the first rape occurred during the summer before her 5th birthday, which was August 13, 2001. M.S. described the second occasion as occurring when she was 7 years old, using for reference the time she was removed from her parents’ home and placed in the custody of her maternal grandmother. Her descriptions of the events were simple and virtually identical. In her own words, she reported penile penetration and ejaculation during both events.
Detective Moews testified that M.S.’s testimony was substantially the same as her initial report of the crimes, except that M.S. had said the first rape occurred in July or August 2001, which was consistent with her testimony.
The State also presented testimony of Kimberly Heuer, M.S.’s maternal aunt, in its case in chief to provide corroborating testimony. The State attempted to have Heuer testify that during the summer when M.S. was 4 or 5 years old, Heuer observed M.S. naked and noticed that her vagina was red and swollen. Upon objection from the defense, Heuer’s testimony was taken outside the presence of the jury. Heuer testified that when she asked M.S. why her vagina was red and swollen, M.S. responded that her grandfather had “touched her again.” When Heuer inquired further, M.S. indicated through hand motions that her grandfather had inserted two fingers into her vagina. The court found that this testimony was inadmissible evidence of other crimes. Heuer was allowed to testify that when M.S. was 6 or 7 years old, M.S. had told Heuer that her grandfather had raped her.
Stephanie Strout, a physician assistant employed by Sunflower House, a child advocacy center in Shawnee, Kansas, testified for Sitlington. Strout testified that she had conducted an examination of M.S. in Februaiy 2006, at the request of the investigating detective to look for signs of sexual abuse. She testified that she did not observe any scarring or other indications of healed sexual trauma, but that in a child several years removed from the sexual trauma, this was not unusual.
In rebuttal, the State recalled Heuer to present the testimony proffered and disallowed earlier in the trial. Sitlington objected on the grounds that the testimony lacked any foundation showing that it contradicted or was in any way inconsistent with the testimony of the physician assistant. The trial court allowed the testimony as proper rebuttal. Heuer testified that in summer 2001, she observed M.S. naked and M.S. had a red and swollen vagina. Heuer did not repeat the testimony she had given earlier outside the presence of the jury attributing the cause of the physical symptoms to criminal behavior by Sitlington.
The jury returned a guilty verdict. Sitlington appealed and the Court of Appeals affirmed. Sitlington, slip op. at 12. This court granted the appellant’s petition for review.
Statute of Limitations
As his first issue on appeal, Sitlington alleges that the trial court gave an erroneous jury instruction requiring reversal of his conviction because the instruction allowed the jury to convict based on conduct that could have occurred outside the period allowed by the applicable statute of limitations. Juiy instruction No. 9, like the amended complaint, required a finding that the criminal conduct occurred between June 1, 2001, and August 12, 2004. Sitlington raised no objection to the instruction at trial.
Because Sitlington raised no objection to the instruction, the instruction must be clearly erroneous before it may serve as the basis of any action by this court. See K.S.A. 22-3414(3).
“The clearly erroneous standard of review under K.S.A. 22-3414(3) is well known: ‘An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ [Citations omitted.] In reviewing jury instructions for error, we examine the instructions as a whole, rather than isolate any one instruction, and determine if the instructions properly and fairly state the law as applied to the facts of the case. [Citations omitted.]” State v. Ellmaker, 289 Kan. 1132, 1139-40, 221 P.3d 1105 (2009).
Although the trial judge indicated he had previously checked the dates against the statute of limitations, in fact, the dates include a 3-week period from June 1, 2001, to June 21, 2001, that was beyond the applicable statute of limitations period. While the State attempts to argue that the statute may have been tolled, that issue was never placed before or considered by the trial court.
The Court of Appeals, without explanation, recharacterized Sitlington’s argument as a claim that the charging document was defective. Acknowledging that the complaint contained a 3-week period that fell outside the statute of limitations, and citing K.S.A. 22-3208(3) (failure to present defenses and objections based on defects in the institution of the prosecution or in the complaint constitutes a waiver thereof), the Court found that Sitlington had waived his right to challenge any defects in the complaint “unless he can show that the defect deprived the district court of jurisdiction or that the complaint is so defective that it fails to charge a crime.” Sitlington, slip op. at 6. The Court of Appeals disposed of Sitlington’s jurisdictional argument by citing Lowe v. State, 14 Kan. App. 2d 119, 121, 783 P.2d 1313 (1989). In Lowe, the Court concluded that the statute of limitations in a criminal case does not raise a jurisdictional question but is an affirmative defense and can be waived. The Court of Appeals also found that, since time is not an essential element of the crime of rape, the amended complaint contained all the essential elements and did not fail to charge a crime. Finally, the Court of Appeals examined the complaint under the three-prong commonsense standard of review regarding the sufficiency of a charging document. Sitlington, slip op. at 6-7. That standard requires the appellate court to look at whether the claimed defect in the complaint or information has prejudiced the defendant in the preparation of his or her defense, impaired the defendant’s ability to plead the conviction in any subsequent prosecution, or limited the defendant’s substantial rights to a fair trial. See State v. Gracey, 288 Kan. 252, Syl. ¶ 1, 200 P.3d 1275 (2009); State v. McElroy, 281 Kan. 256, Syl. ¶ 2, 130 P.3d 100 (2006). The panel concluded that the defense had not been prejudiced, impaired, or limited in this case.
While the reasoning of the Court of Appeals is essentially correct, it does not directly address Sitlington’s argument that the jury was erroneously instructed. In order to directly address Sitlington’s argument, it is important to note that this is a multiple acts case in which the jury could have found Sitlington guilty based upon either one of two acts, both of which constituted the crime of rape. See State v. Allen, 290 Kan. 540, 542, 232 P.3d 861 (2010). That characteristic distinguishes this case from cases cited by Sitlington in which the jury could have found the crime was committed by either of two alternative means. Moreover, the jury was given a unanimity instruction. Consequently, the question in this case is whether it matters that the jury may have based its verdict on a crime that occurred outside the statute of limitations period.
As the Court of Appeals correctly recognized, in Kansas the statute of limitations is an affirmative defense that can be waived and is not jurisdictional. This has been recognized not just by the Court of Appeals in Lowe, but also by this court in In re Johnson, Petitioner, 117 Kan. 136, 230 P. 67 (1924). In Johnson, the appellant brought a habeas corpus action alleging that his conviction should be set aside on the ground that the prosecution was barred by the statute of limitations. This court held the statute of limitations was a defense that must be presented to the trial court on the trial of the matter and, if error was committed there, must be presented on appeal and could not be raised by habeas corpus. In other words, failure to raise the defense at trial waived the defense. 117 Kan. at 137-38.
It follows that Sitlington, having failed to raise the defense of the statute of limitations at trial, waived that defense. Thus, his conviction, even though potentially based on an act beyond the statute of limitations period, is not thereby rendered illegal, unlike the alternative means cases on which Sitlington relies in which one alternative was legally insufficient. It also follows that the trial court’s instruction including the three weeks beyond the statute of limitations is not clearly erroneous.
Rebuttal Testimony
As his second issue on appeal, Sitlington argues that the trial court improperly allowed rebuttal testimony by M.S.’s aunt that she had observed M.S. naked during summer 2001 and M.S.’s vagina had been red and swollen. This testimony had been excluded in the State’s case-in-chief as inadmissible evidence of other crimes because M.S.’s explanation of her injuries suggested digital penetration rather than the penile penetration alleged in this case. The testimony was ostensibly allowed to rebut testimony given by the physician assistant that when she examined M. S., several years after the last alleged abuse, M.S. showed no physical signs of sexual abuse.
We review the admission of rebuttal evidence using an abuse of discretion standard.
“A district judge has broad discretion in determining the use and extent of relevant evidence in rebuttal, and such a ruling will not be ground for reversal absent abuse of that discretion that unduly prejudices the defendant. Generally, admission of rebuttal evidence intended to contradict facts put into evidence during the defense case is not error. State v. Blue, 221 Kan. 185, 188, 558 P.2d 136 (1976) (rebuttal evidence admissible under K.S.A. 60-420 to attack defendant’s credibility; evidence competent to show testimony of defendant, defense witness false).” State v. Cosby, 285 Kan. 230, 250, 169 P.3d 1128 (2007).
The Court of Appeals correctly determined that the testimony presented by M.S.’s aunt in rebuttal was not proper rebuttal evidence.
“Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts witnesses on the opposite side, but also corroborates previous testimony.” State v. Willis, 240 Kan. 580, 583, 731 P.2d 287 (1987).
The Court of Appeals not only found that Heuer’s testimony concerning her observations of M.S.’s red and swollen vagina in 2001 neither directly nor indirectly contradicted the physician assistant’s testimony of lack of injuiy in 2006, but also found that it was irrelevant to the rape charge based on penile penetration since the proffer established that the cause of the condition was digital penetration. In other words, applying this court’s standard of review, the Court of Appeals concluded the rebuttal evidence was neither probative nor material and the district court erred in admitting it.
The Court of Appeals went directly from this conclusion to the application of the harmless error analysis, but it bears mention that the panel could also have found the trial court failed to completely determine and apply the appropriate rules of evidence in its decision to admit the rebuttal testimony. Having previously determined that the evidence was other crimes evidence, the trial court should also have determined whether it met the standards for admissibility under K.S.A. 60-455 (“[Sjubject to K.S.A. 60-445 and 60-448, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”)- The trial court failed to consider that issue altogether.
Having concluded that the evidence was erroneously admitted, the Court of Appeals applied K.S.A. 60-261, which states:
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
See State v. Gonzalez, 282 Kan. 73, 99-100, 145 P.3d 18 (2006) (Errors in admitting evidence must be reviewed to determine “whether the admission of the evidence [1] was inconsistent with substantial justice; [2] affected the substantial rights of defendant; and [3] had any likelihood of changing the results at trial.”).
The Court of Appeals concluded that the admission of the evidence was harmless. It rested its decision on reasoning that the determination of the credibility of the victim is solely within the province of the jury, and the jury’s determination is not to be set aside unless the witness’ testimony is so incredible and improbable as to defy belief, citing State v. Jackson, 280 Kan. 16, 39-40, 118 P.3d 1238 (2005), cert. denied 546 U.S. 1184 (2006), and State v. Borthwick, 255 Kan. 899, 904-05, 880 P.2d 1261 (1994).
The erroneous admission of this evidence as rebuttal was harmless error. The testimony did not link the physical symptoms to Sitlington; the aunt simply testified about her observation of M.S. during the summer before M.S.’s 5th birthday. M.S. testified in detail about the two incidents. Her testimony was plausible and consistent with her earlier reports. It was also corroborated by her aunt’s testimony that M.S. had told her when M.S. was 7 that her grandfather had raped her. The admission of the rebuttal evidence was not so prejudicial as to have changed the result of the trial or denied Sitlington a fair trial.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
William B. Elliott, District Judge, assigned. | [
112,
108,
-52,
-67,
59,
113,
42,
-68,
119,
-45,
49,
-13,
-85,
-62,
20,
123,
-109,
111,
85,
97,
-109,
-73,
-73,
-23,
-78,
-6,
-69,
-35,
-77,
92,
-4,
118,
72,
96,
26,
117,
98,
-54,
-12,
87,
-114,
-123,
-72,
-31,
80,
-56,
36,
59,
-106,
15,
53,
14,
-9,
42,
20,
91,
41,
40,
123,
-66,
80,
97,
-85,
-105,
-113,
52,
-93,
36,
-74,
-83,
-8,
38,
-99,
-111,
0,
-3,
49,
-92,
-128,
117,
92,
-88,
-83,
-30,
98,
-95,
45,
-26,
-91,
-119,
-114,
126,
-84,
-89,
-38,
40,
96,
101,
-65,
-39,
112,
80,
46,
126,
-61,
-57,
63,
100,
2,
-49,
-108,
-111,
-51,
40,
24,
-72,
-9,
125,
2,
49,
-35,
-96,
68,
-13,
58,
-37,
-98,
-77
] |
The opinion of the court was delivered by
Per Curiam-.
Cindy Robinson, a former employee of the City of Wichita, filed a claim for disability retirement benefits with the City of Wichita Employees’ Retirement Board of Trustees (Retirement Board). The Retirement Board calculated Robinson’s disability retirement benefit and then reduced it by the entire amount of a workers compensation award that Robinson had already obtained. This deduction resulted from the application of Section 2.28.150(d)(3) of the Wichita City Code (Wichita Code), which requires that “[a]ny amount received under the State Worker’s Compensation Act (except medical expenses) shall be deducted from the disability retirement benefit.” The issue before us is whether the amount to be deducted from the disability retirement benefit is the entire workers compensation award or the amount of the award remaining after payment of Robinson’s attorney fees.
We conclude the Retirement Board reasonably decided that Wichita Code Section 2.28.150(d)(3) does not except attorney fees from the deduction, properly rejected policy arguments in light of the unambiguous provision, and correctly refused to apply the common-law doctrine that requires sharing of attorney fees by those who benefit from a common fund. Therefore, we affirm the Retirement Board’s decision and reverse the district court’s decision, which in an administrative appeal had reversed the Retirement Board.
Facts
Robinson suffered employment-related injuries to her bilateral upper extremities as a gardener employed by the City of Wichita. The date of injury was April 5, 2002. Robinson filed a claim for workers compensation benefits and entered into an agreed award that totaled $125,000. Per a prior attorney fee agreement, approved in the workers compensation proceeding, Robinson’s workers compensation attorney received a 25 percent contingency fee for his work on the case, or $31,250. This amount was paid out of the workers compensation award, with a pro rata share deducted from Robinson’s bi-weekly temporary total disability benefits.
In June 2008, Robinson filed her disability retirement claim with the Retirement Board. The Retirement Board approved Robinson’s request, retroactively effective July 20,2002, but reduced the amount of available disability retirement benefits by $125,000, the entire amount awarded for workers compensation benefits. The Retirement Board determined that the deduction was required under Wichita Code Section 2.28.150(d)(3).
Robinson filed a request to modify the Retirement Board’s award, arguing that the deduction should not include the workers compensation attorney fees because, although she was awarded $125,000 in workers compensation benefits, she did not actually “receive” the portion that would be paid to her attorney. In other words, the workers compensation deduction should have been reduced to $93,750 ($125,000 minus $31,250 in attorney fees). The Retirement Board, after conducting a discussion and hearing statements of counsel on this matter of first impression, issued its final decision, denying Robinson’s request for modification and determining “to keep its current practices and ordinances in place.”
Robinson filed an appeal in the district court pursuant to K.S.A. 60-2101 (d). The district court agreed with Robinson and found that the Retirement Board incorrectly calculated her disability retirement benefits. The district court concluded the Retirement Board was only entitled to deduct the amount of workers compensation benefits “actually received” by Robinson and should not have included attorney fees in the deduction. In the district court’s journal entry of judgment, the court based its decision on five findings: (1) reducing the disability retirement benefit by the amount of the workers compensation attorney fees “creates a hardship” on Robinson “and will not be permitted because that action thwarts the very purpose of the disability retirement plan”; (2) “Kansas, along with virtually every other state and the federal courts, has adopted the common fund doctrine which permits a party who creates, preserves or increases the value of a fund in which others have an interest, which includes the Respondent’s retirement fund, to be reimbursed from that fund for attorney fees”; (3) deducting the attorney fees penalizes Robinson for exercising her statutory right to recover workers compensation benefits; (4) the Retirement Board’s action and its interpretation of the ordinance was arbitrary and capricious; and (5) the Retirement Board could not rely on a “long-standing policy which it contends permits it to deduct the entire $125,000 including attorney fees because there is no such policy.”
The district court reversed the Retirement Board’s decision and granted judgment for Robinson in the amount of $31,250 plus costs. The Retirement Board now makes a timely appeal. The case was transferred to this court pursuant to K.S.A. 20-3018(c).
Analysis
Robinson’s appeal from the Retirement Board’s decision is based on K.S.A. 60-2101(d). This statute confers jurisdiction on a district court to review the action of a political subdivision exercising “judicial or quasi-judicial functions.” In such circumstances, the district court is limited to determining if the Retirement Board’s decision was within its scope of authority, was substantially supported by evidence, or was fraudulent, arbitraiy, or capricious. On appeal from the district court, an appellate court reviews the Retirement Board’s decision as though the initial appeal had been made directly to the appellate court. See Butler v. U.S.D. No. 440, 244 Kan. 458, 464, 769 P.2d 651 (1989).
In this case, Robinson has not argued that the Retirement Board acted outside its scope of authority. Nor, at least before us, is there any real controversy about the facts. The details of Robinson’s workers compensation and disability claims are not disputed, and the Retirement Board essentially agrees with the factual determinations regarding Robinson’s difficult financial situation and the first-impression nature of the Retirement Board’s ruling. Instead, her focus and the district court’s ruling is that the Retirement Board was arbitrary and capricious in its interpretation of the Wichita Code.
Consequently, we must examine whether the Retirement Board’s actions met the arbitrary and capricious standard that this court has adopted as a standard for appellate review under K.S.A. 60-2101 (d). “This court has defined ‘arbitrary’ to mean without adequate determining principles, not done or acting according to reason or judgment; . . . and ‘capricious’ as changing, apparently without regard to any laws.” Dillon Stores v. Board of Sedgwick County Comm’rs, 259 Kan. 295, Syl. ¶ 3, 912 P.2d 170 (1996). When the standard is applied in the context of a board or agency interpreting a statute, ordinance, or regulation, the board or agency is deemed to have acted arbitrarily and capriciously when its decision was not based on a reasonable interpretation of the provision’s terms and was not made in good faith. Trujillo v. Cyprus Amax Minerals Ret. Plan Comm., 203 F.3d 733, 736 (10th Cir. 2000). As we apply this standard to the district court’s decision, we will first discuss the reasonableness of the Retirement Board’s interpretation of the Wichita Code provision. We will then consider the district court’s rationale for its determination that the action was arbitrary and capricious. Finally, we will consider the common-law doctrine regarding the obligation to pay attorney fees incurred in an action that establishes, preserves, or increases a common fund.
A. Interpretation of Wichita Code Section 2.28.150(d)(3)
In arguing that the Retirement Board did not reasonably interpret Wichita Code Section 2.28.150(d)(3), Robinson insists that the phrase “any amount received” includes only the workers compensation benefits actually received by the injured employee after any attorney fees have been paid. Essentially, Robinson asserts that it was erroneous to use $125,000 in the calculation of the disability retirement benefits because she did not actually receive that amount, having elected to have her workers compensation award reduced by the amount of attorney fees related to the compensation hearing. In other words, she interprets the word “received” to mean “net receipts” as opposed to “any amount awarded.” See Faust v. Walker, 945 A.2d 212, 214 (Pa. Super. 2008) (“common meaning of ‘net proceeds’ is ‘[t]he amount received in a transaction minus the costs of the transaction [such as expenses or commissions]’ ”).
In response, the Retirement Board suggests that the district court and this court should grant deference to its interpretation of the provision and that its interpretation was reasonable and consistent with commonly accepted rules of statutory interpretation. As to the first point, this court has previously stated that “interpretation of a statute is a necessary and inherent function of an agency in its administration or application of that statute” and that “the legal interpretation of a statute by an administrative agency that is charged by the legislature with the authority to enforce the statute is entitled to great judicial deference.” Mitchell v. Liberty Mut. Ins. Co., 271 Kan. 684, Syl. ¶ 4, 24 P.3d 711 (2001). Nevertheless, we have recently been reluctant to apply the doctrine of operative construction when faced with questions of law on undisputed facts. See Fieser v. Kansas Bd. of Healing Arts, 281 Kan. 268, 270-71, 130 P.3d 555 (2006). Instead, we have concluded that an administrative agency’s interpretation of a statute is not conclusive, and final construction of a statute always rests with the courts. Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007); Fieser, 281 Kan. at 270; Foos v. Terminix, 277 Kan. 687, 692-93,89 P.3d 546 (2004). Hence, we do not grant deference to the Retirement Board’s interpretation.
Instead, the interpretation of Wichita Code Section 2.28.150(d)(3) presents a question of law over which we have unlimited review. See Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009). In conducting that review, a court applies the same rules to interpreting a municipal ordinance as we would when interpreting a statute. Weeks v. City of Bonner Springs, 213 Kan. 622, 629, 518 P.2d 427 (1974). Under those rules, when a statute or municipal ordinance is plain and unambiguous, the court must give effect to express language, rather than determine what the law should or should not be. This court will not speculate on legislative intent and will not read the provision to add something not readily found in it. If the provision’s language is clear, there is no need to resort to statutory construe tion. Graham, 284 Kan. at 554; Steffes v. City of Lawrence, 284 Kan. 380, 386, 160 P.3d 843 (2007).
Applying these rules to the interpretation of similar statutes, courts in California, Kentucky, and Washington as well as the Tenth Circuit Court of Appeals have rejected arguments similar to Robinson s. As we will discuss, the reasoning of these cases applies to our interpretation of Wichita Code Section 2.28.150(d)(3).
In the California case of Garietz v. City of Oakland, 20 Cal. App. 3d 115, 97 Cal. Rptr. 374 (1971), the claimants were former members of the police and fire departments who sustained a disability in the course of employment and subsequently applied for and received benefits under California labor codes. The claimants appealed when the City deducted the total amount of workers compensation benefits, including attorney fees, from the pension benefits. They pointed out that when the entire amount of the workers compensation award is deducted from the disability retirement allowance, the claimant is out of pocket the amount of workers compensation attorney fees.
A city charter provided for the Police and Fire Retirement System, and the retirement provisions of the charter stated, in part:
“ ‘It is the intention of this section that allowances granted to or on account of members of the System for injury, illness or death incurred in the performance of duty shall not be cumulative with benefits under the Labor Code of California awarded as the result of the same injury, illness, or death . . .
“ ‘(a) If the amount [of benefits awarded] is paid in one sum or in installments equal to or greater than such salary, retirement allowance, or other benefit, such member or dependant shall not receive any salary, retirement allowance, or other benefit until the total amount of the salary, retirement allowance, or other benefit which would otherwise be payable equals the total amount received under the Labor Code.
“ ‘(b) If the amount [of benefits awarded] is paid in installments less than such salary, retirement allowance, or other benefit, the salary, retirement allowance or other benefit, shall be reduced so that the total salary, retirement allowance, or other benefit plus the amounts received under the Labor Code will equal the salary, retirement allowance or other benefit which would otherwise be due.
“ ‘(c) In either case any award specifically granted for medical, surgical, or hospital expenses shall not reduce the salary, retirement allowance, or other benefit.’ ” (Emphasis added.) Garietz, 20 Cal. App. 3d at 118 n.l (quoting city charter section 249[2]).
The claimants contended that the language of the first paragraph prohibiting cumulative benefits and the emphasis on “paid” and “received” in the subdivisions created an ambiguity that had to be liberally construed in their favor to prohibit any deduction from including the amount of attorney fees. The claimants argued that in the absence of any language permitting the deduction of certain amounts, no deduction of workers compensation attorney fees should be allowed and that the City should bear the cost of the claimants’ attorney fees.
The California Court of Appeals noted that the state’s Labor Code provided for certain hens against any sum ordered paid as compensation by the Workers’ Compensation Appeals Board. In addition to attorney fees, the Labor Code provided that the Board may “ ‘determine and allow as liens against any sum to be paid as compensation’ ” various other expenses incurred by or on behalf of the injured employee. Garietz, 20 Cal. App. 3d at 118 (quoting Labor Code Section 4903). The Garietz court determined that the legislature did not intend that only the net amount “received” by the employee may be considered in deducting the award from pension payment. If only the net amount received could be considered, not only would attorney fees have to be excluded, but other categories of statutory hens would also have to be excluded. The Garietz court further observed that the workers compensation provision of the Labor Code was in effect when the city charter was enacted; therefore, if there was any conflict between the city charter and the workers compensation provisions, the latter must prevail. Regardless, reading the city charter in this context, the Garietz court concluded there was no ambiguity. This conclusion was also supported by the notion that an employee is not entitled to a double recovery of indemnity for an industrial disability. Garietz, 20 Cal. App. 3d at 119.
In the Kentucky decision of Rue v. Kentucky Retirement Systems, 32 S.W.3d 87 (Ky. App. 2000), the claimant was unable to return to work after sustaining a back injury in the course of his employment as a mechanic with the Kentucky State Police. In addition to applying for disability retirement benefits, the claimant also applied for social security benefits and workers compensation benefits. The claimant appealed the retirement system’s calculation of total benefits when it used the gross amount of his workers compensation award instead of the reduced amount he would actually receive after deducting attorney fees.
The Kentucky Court of Appeals observed that the plain language of the applicable Kentucky statute stated that the monthly disability benefit was to equal the employee’s final pay minus amounts received from federal social security or a workers compensation award. Spouses’ and children’s benefits were specifically excluded, but there was no mention of attorney fees. Noting that some specific exclusions were mentioned, the Rue court rejected the claimant’s contention that the amount used in establishing the workers compensation component of the combined monthly benefit should be reduced by the amount of attorney fees related to the workers compensation proceeding. The Rue court reasoned that the statute was clear in providing which allowances were not to be considered in calculating benefits. The legislature was capable of wording the statute in such a way as to express the intent to reduce the amount of workers compensation attorney fees, but it did not do so.
Additionally, the Rue court observed that Kentucky is not one of several states that treat attorney fees as an “add-on” or double benefit that the employer must pay in addition to the compensation award itself. Instead, under the Kentucky statutory scheme, the payment of legal fees remains at all times the personal responsibility of the claimant. “This is true,” said the Rue court, “despite the fact that our statutes require approval of the fee and offer a claimant the option of paying that obligation up-front’ through reduced monthly benefit proceeds.” Rue, 32 S.W.3d at 89. The court characterized the reduction of the claimant’s workers compensation benefits as a mere “voluntary election as to the manner he would pay that debt.” Rue, 32 S.W.3d at 89. Also, permitting a claimant to reduce his or her compensation award in order to satisfy the attorney’s entitlement to a fee “is, in reality, offered as a convenience to the claimant.” Rue, 32 S.W.3d at 89.
Noting that other jurisdictions with similar statutoiy schemes have reached comparable results, the Rue court held that to allow the claimant to deduct only his net workers compensation award would provide a benefit not intended by the Kentucky Legislature. Rue, 32 S.W.3d at 89.
In Regnier v. Labor and Indus., 110 Wash. 2d 60, 749 P.2d 1299 (1988), the claimant was injured in the course of her employment, and she filed a claim for industrial insurance. The state’s Department of Labor and Industries (Department) awarded her disability benefits. Subsequently, the claimant sought and obtained federal social security disability benefits for her injury. As a result, the Department reduced the claimant’s state industrial insurance benefits under the language of the state statute which provided that industrial insurance benefits “shall be reduced by an amount equal to the benefits payable under the federal old-age, survivors and disability insurance act,” not to exceed a certain amount. Regnier, 110 Wash. 2d at 63.
Although the claimant had incurred medical and legal expenses in obtaining her social security disability benefits, the district court upheld the decision of the Board of Industrial Insurance Appeals to deny any credit or exemption for the medical and legal expenses.
On appeal, the claimant argued that in computing the reduction in state benefits, she should receive a credit for the medical and legal expenses she incurred in obtaining her federal benefits. This argument was based on 20 C.F.R. § 404.408(d), a regulation governing the computation of federal benefits in cases where a state has not enacted a statute regarding items that may be excluded when calculating a reduction. The claimant argued that this regulation excluded from the process actual legal and medical expenses incurred in gaining state benefits so that, in effect, the claimant would receive a credit. Regnier, 110 Wash. 2d at 63.
The Washington Supreme Court rejected this notion, unconvinced that the federal regulation required an exemption for medical and legal expenses to be taken from the amount of the reduction in federal benefits. Moreover, even if such an exemption was available from a federal reduction procedure, there was no similar provision under Washington law. Regardless, the Regnier court pointed to the well-known rule that “attorney fees may be recovered only where authorized by a statute, a private agreement be tween the parties, or a recognized equitable ground,” none of which was present in the case. Regnier, 110 Wash. 2d at 64.
Finding that the legislature “has not seen fit to provide benefits to cover die expenses of establishing eligibility for disability benefits,” the Regnier court held it would be inappropriate for the court to create such benefits. Regnier, 110 Wash. 2d at 65; cf. City of Clearwater v. Acker, 755 So. 2d 597, 600 (Fla. 1999) (increases in permanent total disability supplemental benefits paid by employer annually should not be included in calculation of disability benefit that is reduced by workers compensation benefits; recalculating reduction every year, so as to include increase in supplemental benefits, would frustrate intended purpose of supplemental benefits which was to give cost-of-living benefit to workers); Waterman v. Caprio, 983 A.2d 841, 843 n.4 (R.I. 2009) (workers compensation settlement, adjusted downward for 15 percent attorney fee, had to be deducted from retirement benefit payments).
In a case discussed by the parties — Trujillo v. Cyprus Amax Minerals Ret. Plan Comm., 203 F.3d 733 (10th Cir. 2000) — the Tenth Circuit Court of Appeals also considered whether attorney fees should be included in a deduction from disability benefits. There, the claimant brought a state court action under the Employee Retirement Income Security Act (ERISA), challenging the plan administrator s decision to reduce his disability retirement benefits by the total amount of the workers compensation settlement rather than the amount of the settlement minus attorney fees incurred in obtaining the settlement. After the action was removed to federal court, the federal district court ruled in favor of the claimant.
On appeal, the Tenth Circuit held that the ERISA plan administrator did not act arbitrarily and capriciously in determining that the ERISA plan section, which stated that disability benefits would be reduced by the amount of workers compensation benefits “payable” to the participant, required the inclusion of the amount of attorney fees incurred by the participant in obtaining his or her workers compensation settlement. Drawing on definitions of “payable” in Black’s Law Dictionary, the Tenth Circuit observed that “payable” could mean “ ‘capable of being paid,’ ” “ ‘justly due,’ ” or “ ‘legally enforceable.’ ” Trujillo, 203 F.3d at 737 (quoting Black’s Law Dictionary 1128 [6th ed. 1990]). Also, the court noted that attorney fees were not mentioned in the claimant’s settlement, indicating that he agreed to pay fees out of the total award received.
The Tenth Circuit rejected policy-based arguments advanced by the claimant. First, the claimant argued that the plan administrator’s decision effectively required him to pay the cost of reducing his own benefits under the plan. Second, he contended that the plan administrator’s decision would create “irreconcilable conflicts” between workers compensation attorneys and their clients and “ 'make it impossible for injured workers to obtain adequate, conflict-free representation.’ ” Trujillo, 203 F.3d at 738. The Tenth Circuit determined there was no authority to allow such policy arguments to trump the plan administrator’s reasonable interpretation of the plan’s language. Finally, the Tenth Circuit rejected the claimant’s contention that the doctrine of unjust enrichment should preclude the plan administrator from deducting the entire amount of the workers compensation settlement without paying a share of the claimant’s attorney fees. Trujillo, 203 F.3d at 738.
Points from the analysis of these cases apply to the Wichita Code requirement that “[a]ny amount received under the State Worker’s Compensation Act” be deducted from the disability retirement award. Wichita Code Section 2.28.150(d)(3). First, like the provisions considered in the other jurisdictions, the language is inclusive, referring to ''[a]ny amount.” Second, like the California provision, the Wichita Code uses the term “received.” Black’s Law Dictionary does not contain a definition of “received,” but Webster’s New World Dictionary, Second College Edition, pp. 1884-85 (1974) defines the term as “to get, accept, take, or acquire something; be a recipient.” When that meaning is read in context of the entire phrase used in Wichita Code Section 2.28.150(d)(3), the meaning is much the same as the wording considered by the Tenth Circuit and other courts because it would be “[a]ny amount” the claimant gets, accepts, takes or acquires “under the State Worker’s Compensation Act.” Under the Kansas Workers Compensation Act (Kansas Act), Robinson got, accepted, took, or acquired the entire $125,000 in workers compensation benefits. This common understanding is reflected in a September 2008 letter from Robinson’s workers compensation attorney to opposing counsel, in which he stated: “I have taken a fee of 25% of all temporary total disability checks received. The gross amount of those checks is $700.12 every two weeks.” (Emphasis added.) Hence, the provision’s language supports the Retirement Board’s interpretation.
Further, as with the provisions considered in the out-of-state cases we have discussed, the Kansas Act does not award attorney fees in addition to the workers compensation award or make the employer responsible for the attorney fees. The “American Rule” is well established in Kansas so that, in the absence of statutory or contractual authorization, each party to the litigation is responsible for his or her own attorney fees, and the Kansas Act does not create an exception. See Farm Bureau Mut. Ins. Co. v. Kurtenbach, 265 Kan. 465, 479-80, 961 P.2d 53 (1998) (the “ ‘American rule’ . . . which is well established in Kansas, is that in the absence of statutory or contractual authorization, each party to litigation is responsible for his or her own attorney fees”); 8 Larson’s Workers’ Compensation Law §133.01 (“The obligation to bear one’s own legal fees, then, has become established as a necessary evil, which each client must contrive to bear as cheerfully as he or she can.”); see also Hodges v. Johnson, 288 Kan. 56, 70,199 P.3d 1251 (2009) (“In Kansas, courts are not permitted to award attorney fees without specific statutory authorization.”).
We also note that several provisions of the Kansas Act indicate that the award belongs to the claimant, not the attorney. As in the Kentucky statute, K.S.A. 44-536(b) provides that “[a]ny claims for attorney fees not in excess of the limits provided in this section and approved by the director shall be enforceable as a lien on the compensation due orto become due.” (Emphasis added.) Further, subject to exceptions not pertinent in this case, “[a]ll attorney fees for representation of an employee . . . shall be only recoverable from compensation actually paid to such employee.” (Emphasis added.) K.S.A. 44-536(f). In other words, under the Kansas Act the entire award is deemed to be actually paid, awarded to, and received by the claimant, who is responsible for payment of his or her attorney fees.
In addition, as with the Kentucky statute, the Kansas Act requires the filing of an attorney fee contract with the director of workers compensation and provides that both the contract and the claimed attorney fees must be reviewed and approved. K.S.A. 44-536(b). Once the contract is approved, the Kansas Act facilitates the payment of the attorney fees by allowing a deduction from the award that is sent directly to the attorney — a type of bill payer service. K.S.A. 44-536. Yet, the claimant remains responsible for paying the attorney fees and discharging his or her obligation to the attorney. See Feissner v. Prince George’s Co., 282 Md. 413, 417-18, 384 A.2d 742 (1978) (conducting comparable analysis, court concludes statutory hen for attorney fees merely alters the manner in which liability for fees is discharged; it makes employee no less responsible for payment of fee). Thus, a claimant gets, acquires, or takes the full amount of the award.
An additional consideration discussed in the Kentucky case applies to our analysis of Wichita Code Section 2.28.150(d)(3). That consideration is that the provision specifically mentions one exception but does not mention attorney fees. Specifically, the Wichita Code provides that disability retirement benefits will not be reduced by the portion of the workers compensation award that is for medical expenses. As aptly noted by the Kentucky court when discussing that its exemption for spouses’ and children’s benefits was silent regarding attorney fees, neither an agency (in this case, the Retirement Board), a district court, nor an appellate court is free to add words to a statute or ordinance in order to enlarge the scope beyond that which can be gleaned from a reading of the words used by the drafters. Rue, 32 S.W.3d at 89; see Zimmerman v. Board of Wabaunsee County Comm’rs, 289 Kan. 926, 939-40, 218 P.3d 400 (2009) (when statute is plain and unambiguous, 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). Here, the Wichita Code makes no reference to excluding attorney fees and does not contain language regarding “net proceeds.”
Hence, we conclude the Retirement Board’s interpretation of Wichita Code Section 2.28.150(d)(3) was a reasonable interpreta lion in that it was consistent with principles of statutory interpretation and the interpretation of similar provisions by other courts. The Retirement Board’s interpretation was not arbitrary or capricious. See Dillon Stores v. Board of Sedgwick County Comm’rs, 259 Kan. 295, Syl. ¶ 3, 912 P.2d 170 (1996) (defining arbitrary or capricious).
B. District Court’s Rationales for Determining Board’s Interpretation Was Arbitrary
Three of the rationales stated by the district court related to the question of whether the Retirement Board’s interpretation of Wichita Code Section 2.28.150(d)(3) was reasonable. First, the district court concluded such an interpretation was contrary to the stated purposes of the retirement disability fund. Second, the district court determined the interpretation was contrary to public policy because it penalized Robinson for the exercise of her rights under the Kansas Act. Third, the district court noted the Retirement Board had not previously determined the issue and, consequently, there was no long-standing policy.
1. Considering Purposes of Disability Benefits
In the first of these three rationales, the district court discounted the plain language of subsection (d)(3) of Wichita Code Section 2.28.150 and instead focused on the first half of the self-described “purpose” of the retirement plan, as laid out in Wichita Code Section 2.28.010, which states:
“The purpose of the Wichita employees’ retirement plan, hereinafter referred to as the ‘retirement plan,’ is to establish an orderly means whereby noncommissioned personnel employed by the city who have attained retirement age or who have become disabled as set forth in this chapter may be retired from active service without prejudice and without inflicting a hardship on the employees retired, and to enable employees to accumulate reserves for themselves and their dependents to provide for old age, disability, death and termination of employment, and for the purpose of effecting economy and efficiency in the administration of governmental affairs.”
Citing this provision, the district court specifically found that “[t]he reduction by the Board of the disability retirement benefits by the amount of attorney fees retained by petitioner’s counsel in her workers compensation case creates a hardship on the petitioner and will not be permitted because that action thwarts the very purpose of the disability retirement plan.” In support of this finding, the court detailed Robinson’s difficult financial situation.
The district court did not explain, however, why Robinson’s personal financial status — a case-specific fact — requires the interpretation of “any amount received” under the Wichita Code to be the equivalent of “net receipts,” i.e., the award after deduction of attorney fees. Nowhere does Wichita Code Section 2.28.150(d)(3) require that the claimant’s personal financial status be considered. In addition, Robinson cites no authority for the notion that an individual’s disability income must meet a certain level of adequacy. Finally, as the Retirement Board argues, by emphasizing the purpose provision of the Wichita Code, the district court essentially found that the general purpose provision, Section 2.28.010, controls over the specific deduction provision of Wichita Code Section 2.28.150(d)(3). Yet, well-established rules of construction hold that specific statutes control over general ones. Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs., 290 Kan. 446, 228 P.3d 403 (2010).
Also, in focusing on the general purpose provision, the district court changed the universal applicability of the deduction provision because performing a prejudice and hardship analysis requires a case-by-case consideration. This could lead to inconsistent results, bypassing systematic calculations in order to consider the facts of each case. The Retirement Board argues that this case-by-case approach would jeopardize compliance with a different portion of Wichita Code Section 2.28.010, specifically that portion which states: “It is the intent that the Wichita employees’ retirement plan be established as a qualified governmental pension plan under Section 401(a) and 414(d) of the Internal Revenue code.” Section 401(a) of the Internal Revenue Code requires that actuarial assumptions be specified in a pension plan in order for the plan to qualify for tax exempt status. See 26 U.S.C. § 401(a) (25) (2006). Additionally, 26 C.F.R. § 1.401-l(b)(l)(i), which was issued under section 401(a) of the Internal Revenue Code, requires pension plans to provide “definitely determinable benefits” in order to meet the requirements for special tax treatment. Eaton v. Onan Corp., 117 F. Supp. 2d 812, 847 (S.D. Ind. 2000). The Retirement Board contends that this objective would be defeated, and the tax status of the retirement plan imperiled, if the Board or the courts were to apply the general purpose provision of the Wichita Code to use discretion in calculating benefits for individuals based on hardship.
The Retirement Board makes a valid point. The district court did not consider the possibility that it is the City’s act of providing determinable disability retirement benefits to all eligible retirees which fulfills the purpose of the City’s retirement plan. Focusing on the terms “prejudice” and “hardship” in the purpose provision of the Wichita Code, the district court essentially ignored the plain language in Section 2.28.150(d)(3).
2. Penalty
In a closely related analysis, the district court found that the Retirement Board’s action of “deducting [workers compensation] attorney fees from [Robinson’s] disability retirement penalizes her for exercising her statutory right to recover workers compensation benefits.” The court stated that “[b]ecause she sought to exercise her right to recover those [workers compensation] benefits as well as seek compensation and reimbursement for medical expenses, [Robinson] will actually end up with less because the Board has required her to pay the attorney fees to recover the money for the Board.” In other words, Robinson was prejudiced by the Retirement Board’s decision requiring her to pay the workers compensation attorney fees.
According to the minutes from the Retirement Board’s meeting on October 15,2008, Robinson’s city retirement disability payment was calculated to be $1,281.45 per month. Her workers compensation payment, before the 25 percent attorney fee deduction, was approximately $1,400 per month (after attorney fees, the monthly workers compensation payment was $1,050 per month). The Retirement Board acknowledged that Robinson’s outcome was negatively affected by the order in which she applied for both benefits. The Board noted:
“The dollar amount collected over a period of year's through the Pension System [generally] exceeds the Worker’s Compensation settlement upon application of the required offset. . . . [Robinson] actually does come out a bit worse by virtue of having done things the way she did because the Worker’s Compensation benefit was higher, but it was not more than 25% higher.”
Even so, Robinson fails to show how her payment of workers compensation attorney fees, by itself, is a penalty. The provisions in the Wichita Code do not specifically show the intent to maximize the injured employee’s benefits. Further, Kansas appellate courts have determined that K.S.A. 2009 Supp. 44-501(h), which allows employer contributions in private pension plans, paid to retired injured workers, to be reduced by the amount of employer-funded workers compensation benefits paid to the same workers, is not a penal statute. See, e.g., Robinson v. Southwestern Bell Telephone Co., 39 Kan. App. 2d 342, 347, 180 P.3d 597 (2008), overruled on other grounds Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 214 P.3d 676 (2009). The statutory purpose and function is much the same as the ordinance at issue in this case and, therefore, to suggest that the Wichita Code at issue imposes a penally upon former City employees would be contrary to the analysis in Robinson.
Further, provisions allowing an award of attorney fees are not passed to benefit the attorney or to burden litigants. Rather, they are passed to enable litigants to obtain competent counsel. Hatfield v. Wal-Mart Stores, Inc., 14 Kan. App. 2d 193, 199, 786 P.2d 618 (1990); see Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 719 (5th Cir. 1974), abrogated on other grounds Blanchard v. Bergeron, 489 U.S. 87, 103 L. Ed. 2d 67, 109 S. Ct. 939 (1989). Robinson’s contingency fee contract enabled her to obtain counsel, and she received economic benefits by hiring counsel in her workers compensation case.
Therefore, we conclude Robinson has not been penalized by having to pay her attorney a fee deemed reasonable by the workers compensation director.
3. No Long-standing Policy
In addition, the district court focused on the fact that the issue of including the attorney fees in the amount of the reduction had never been previously presented to the Retirement Board. Consequently, the district court questioned the Board’s statements that it hesitated to veer away from its “current practice” of utilizing the full workers compensation award in its calculation of available disability retirement benefits and that a deduction of workers compensation attorney fees might require a “written rule.”
Because the district court considered the Retirement Board’s interpretation of Wichita Code Section 2.28.150(d)(3) to be arbitrary and capricious, it did not consider the fact that the existence of the ordinance itself established a long-standing policy. Because we have reached the opposite conclusion and have found the Retirement Board’s interpretation to be reasonable, we do not have the same difficulty and can conclude the policy was long-standing, having been adopted on passage of the ordinance.
Further, the record discloses that the Retirement Board examined the statutes and regulations related to other public plans with similar deduction provisions. Our independent review of those provisions underscores the reasonableness of the Retirement Board’s decision because, in other Kansas contexts involving the reduction of one type of benefit because of the entitlement to another benefit, this court has consistently held that where two governmental benefits arise from a common cause, there is no entitlement to both. For example, the Kansas Act, specifically K.S.A. 2009 Supp. 44-501(h), provides:
“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 the 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 the employee’s percentage of functional impairment.” (Emphasis added.)
Applying this provision, this court and the Court of Appeals have noted that the purpose of this statutory reduction is to prevent wage loss duplication. Injured Workers of Kansas v. Franklin, 262 Kan. 840, 872, 942 P.2d 591 (1997); Lleras v. Via Christi Regional Med. Center, 37 Kan. App. 2d 580, Syl. ¶ 5, 154 P.3d 1130 (2007); McIntosh v. Sedgwick County, 32 Kan. App. 2d 889, 897, 91 P.3d 545, rev. denied 278 Kan. 846 (2004). If a claimant is injured before he or she retires, the employer is entitled to the statutory reduction, as an injured employee is not entitled to recover both retirement benefits and workers compensation benefits beyond the value of the functional impairment. McIntosh, 32 Kan. App. 2d at 894,897-98. Conversely, if an employee retires and then returns to work to supplement his or her income, the reduction does not apply, as the employee’s receipt of both workers compensation benefits and social security retirement benefits are not duplicative. Dickens v. Pizza Co., 266 Kan. 1066, 1071, 974 P.2d 601 (1999). Neither K.S.A. 2009 Supp. 44-501(h) nor Wichita Code Section 2.28.150(d)(3) contains a provision requiring the deduction to be reduced by the amount of attorney fees incurred in obtaining the benefits that reduce the pension or disability retirement benefit.
Similarly, the Kansas Public Employees Retirement System Act (KPERS), K.S.A. 74-4901 et seq., deduction provisions do not provide for adjustments due to attorney fees. For example, disability payments for certain correctional employees are addressed in K.S.A. 74-4914e, which provides in part:
“Benefits payable under this section shall be reduced by the original amount of any disability benefits received under the federal social security act or the workers compensation act. ... In no case shall a correctional employee who is entitled to receive benefits under this section receive less than $100 per month.” (Emphasis added.) K.S.A. 74-4914e(ll).
The above statute references the “original amount” and does not provide for a reduction for any attorney fees the retiree incurred in pursuing social security or workers compensation benefits.
We also note that the Kansas Legislature has obviously become aware of the attomey-fee-adjustment argument in the context of KPERS and has clearly rejected it, as seen in another provision, K.S.A. 2009 Supp. 74-4927(l)(B). That statute provides for the deduction of social security and workers compensation benefits from long-term disability benefit payments and specifically states: “As used in this section, workers compensation benefits’ means the total award of disability benefits payments under the workers compensation act notwithstanding any payment of attorney fees from such benefits as provided in the workers compensation act.” (Emphasis added.) K.S.A. 2009 Supp. 74-4927(l)(B).
Hence, although the Retirement Board had not considered the attorney fee issue, its interpretation of Wichita Code Section 2.28.150(d) was consistent with similar provisions in Kansas law and with the language of the provision. Because the Retirement Board applied the clear language of the provision, the fact that the interpretation was a matter of first impression does not render it arbitrary. Consequently, we conclude none of the rationales stated by the district court established that the Board’s interpretation was unreasonable or contrary to established principles.
C. Common Fund
In addition to considering the interpretation of Wichita Code Section 2.28.150(d)(3), the district court relied on another concept — the common fund doctrine. In essence, the district court reasoned that regardless of the code provision this common-law concept entitled Robinson to recover the attorney fees from the Retirement Board. The Board urges this court to reject this doctrine in light of the language in Wichita Code Section 2.28.150(d)(3).
The common fund doctrine permits a party who creates, preserves, or increases the value of a fund in which others have an interest to be reimbursed from that fund for litigation expenses incurred, including attorney fees. The doctrine reflects the traditional practice in courts of equity, and it stands as a well-recognized narrow exception to the general principle that requires every litigant to bear his or her own attorney fees. Gigot v. Cities Service Oil Co., 241 Kan. 304, 737 P.2d 18 (1987). “The doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant’s expense. [Citation omitted.]” Gigot, 241 Kan. at 313. For example, the common fund doctrine generally provides the basis for awarding attorney fees in class actions. The rationale for awarding attorney fees out of a common fund is that the attorney’s services benefit the fund by creating, increasing, or preserving the fund. Moore v. St. Paul Fire Mercury Ins. Co., 269 Kan. 272, 277, 3 P.3d 81 (2000); see County Workers Comp. Pool v. Davis, 817 P.2d 521, 526 (Colo. 1991) (basic rule of equity permits apportionment of attorney fees and costs under circumstances where party has been successful in creating a fund from which other “passive beneficiaries” derive monetary benefit).
The common fund doctrine relied on by the district court in this case was not mentioned in the California, Kentucky, or Washington cases, or the Tenth Circuit case we previously discussed, which were based on common rules of statutory interpretation. (The Tenth Circuit did consider and reject the doctrine of unjust enrichment.) Nevertheless, the common fund doctrine has been discussed in similar cases, and two lines of cases have emerged.
In support of Robinson’s argument, she cites Leonard v. Southwestern Bell Corp. Disability, 341 F.3d 696 (8th Cir. 2003), which is representative of one line of cases. There, Southwestern Bell had reduced the claimant’s disability retirement plan by the entire workers compensation award of $100,000. Southwestern Bell argued that the goal of employee benefit plans is to provide a safety net for employees, i.e., to provide a minimum amount of compensation for disabled employees. The Eighth Circuit Court of Appeals stated that allowing the plan to reduce the award by the amount of the workers compensation award and the attorneys fees and costs incurred by the employee in obtaining that award contradicts this goal. “Such a practice would place employees in worse positions than they would have been in had they not tried to obtain a worker’s compensation award in the first place.” Leonard, 341 F.3d at 705.
Additionally, the Leonard court was concerned with the inequitable results this practice could produce. “Assuming that an employer is not self-insured for worker’s compensation, Southwestern Bell’s argument would result in a windfall to an employee benefit plan and a detriment to an employee when the employee elects to assert rights under a worker’s compensation law.” Leonard, 341 F.3d at 705. The employer would be able to reduce benefits, dollar for dollar, for the total amount of the workers compensation award, while the employee, who asserted statutory rights and obtained an additional recovery, would be worse off, having only received the amount of the award remaining after payment of attorney fees and costs. Leonard, 341 F.3d at 705-06.
Given these two concerns, the Leonard court refused to allow the reduction to include the amount a plan participant had to pay in attorney fees and costs to obtain nonplan benefits, absent an explicit statement in the plan that administrators had discretion to treat fee and cost portions of such payments as the “same general character” as plan benefits. Leonard, 341 F.3d at 706.
The common fund doctrine was also applied in Young v. Mory, 294 Ill. App. 3d 839, 690 N.E.2d 1040 (1998). There, Young had reached a tentative settlement of workers compensation claims with his employer for $100,000, of which $20,000 was for attorney fees. Young also sought occupational disability benefits from the State Employees’ Retirement System of Illinois (SERS). Before finalizing the settlement, Young sought a declaratory judgment to enjoin SERS from reducing his retirement benefits by the attorney fees portion of the pending settlement.
Under the Illinois Pension Code, SERS was entitled to a deduction from benefits for any workers compensation award. Young, 294 Ill. App. 3d at 847 (citing 40 ILCS 5/14-129 [West 1996]). SERS had adopted a regulation which provided that the amount considered for the purpose of a deduction would not be reduced by any legal expenses granted in the workers compensation award. Hence, the pension benefit was reduced by the entire workers compensations award, including the attorney fees.
The Illinois Court of Appeals found that the regulation was invalid because SERS clearly benefited from the services of Young’s attorney in that SERS would be able to reduce the pension award by the full amount of the workers compensation award, including the amount paid for attorney fees. As such, the common fund doctrine applied and SERS was responsible for the fees incurred by the claimant in seeking workers compensation benefits.
The common fund doctrine was also applied in a Montana case quite similar to the one at hand. In Flynn v. State Compensation Ins. Fund, 312 Mont. 410, 60 P.3d 397 (2002), the claimant suffered repetitive work-related injuries and began receiving workers compensation benefits. He subsequently filed a claim for and began receiving social security disability benefits. Because of the disability benefits, the State Compensation Insurance Fund notified the claimant that his workers compensation payments would be reduced. The claimant filed a petition in the Workers Compensation Court in which he alleged that the State Fund should pay a proportionate share of the attorney fees he incurred to recover social security disability benefits. He reasoned that the State Fund benefited from his social security disability award as much as he did because it could now reduce the workers compensation benefits paid to him by one-half the amount of the social security disability award.
The Workers Compensation Court rejected the claimant’s attorney fee claim for three reasons. First, it cited Stahl v. Ramsey Construction Co., 248 Mont. 271, 811 P.2d 546 (1991), for the proposition that no statutory or contractual authority supported the apportionment claim. Second, the court found that the common fund doctrine “ ‘has no application here [because] Claimant is not seeking attorney fees for others who may benefit by this decision, rather he is seeking attorney fees with respect to his own entidement.’ [Citation omitted.]” Flynn, 312 Mont, at 413. Finally, the court based its decision on statutoiy preemption, holding that “ ‘[w]here a conflict arises between the common law and a statute, the common law must yield.’ [Citation omitted.]” Flynn, 312 Mont, at 414.
On appeal from the rulings of the Workers Compensation Court, the Montana Supreme Court in its Flynn decision also discussed Stahl, where the claimant incurred attorney fees to recover social security disability benefits and the Social Security Administration withheld a percentage of the award for direct payment of his attorney fees. Following the Stahl claimant’s social security disability award, the State Fund determined that it was entitled to reduce its future payment of benefits to account for the retroactive social security disability award. The claimant contended that since he had not received the amount withheld for attorney fees, it should not be included in the overpayment calculation.
The Flynn court noted that the Stahl claimant did not argue for application of the common fund doctrine and presented a different theory for relief than was presented in Flynn. The Flynn court, therefore, did not find Stahl to be dispositive. Next, the court summarized the elements of the common fund doctrine as follows:
“(1) an active beneficiary must create, reserve, or increase a common fund; (2) the active beneficiary must incur legal fees in establishing the common fund; and (3) the common fund must benefit ascertainable, non-participating beneficiaries. We enforce this doctrine because equity demands that all parties receiving a benefit from the common fund share in the cost of its creation. [Citation omitted.]” Flynn, 312 Mont, at 414.
With those elements in mind, the Flynn court observed that by obtaining a social security disability award the claimant enabled the State Fund to reduce his weekly workers compensation benefits. Also, as a result of the claimant’s litigation efforts, funds were recovered which accrued to the substantial benefit of the State Fund. While the State Fund reaped the benefit of the claimant’s efforts, it was not required to intervene, risk expense, or hire an attorney throughout the litigation proceedings. As a result, the Flynn court held that the claimant’s social security disability award constituted an existing, identifiable monetary fund or benefit in which an ascertainable, nonparticipating beneficiary maintained an interest. Flynn, 312 Mont, at 415.
The state’s high court acknowledged that the common law is preempted where the law is statutorily declared. But it stated that “the Workers’ Compensation Act is silent on the issue of attorney fee apportionment following benefit recoupment.” Flynn, 312 Mont, at 415. Thus, the Flynn court found there was no statutory declaration preempting the equitable principles of the common fund doctrine.
A dissent, however, took the view that the common fund doctrine had no application. First, the dissenting justice observed that there is no “common fund” because the governmental agency involved in that case was not a party to the administrative proceeding, made no claim, and did not share a claim with Flynn, the claimant. Indeed, “Flynn’s SSD award is personal to him and all funds obtained thereunder are entirely under his control. The State Fund has no claim of entitlement to, or power to control the disbursement of, any funds paid to Flynn by the Social Security Administration.” Flynn, 312 Mont, at 417-18. (Rice, J., concurring part and dissenting in part). In addition, the dissenting justice concluded there was not a common interest because the “[f]und is not a beneficiary with a common claim to federal benefits.” Flynn, 312 Mont, at 418 (Rice, J., concurring in part and dissenting in part).
In support of the position, the dissent cited Neal v. County of Stanislaus, 141 Cal. App. 3d 534, 190 Cal. Rptr. 324 (1983). In Neal, the court discussed the development of the common fund doctrine and noted the existence of contractual obligations which furthered the doctrine. Neal, 141 Cal. App. 3d at 538. In so doing, the court stated:
“The mere fact that defendant [county] benefits from plaintiff s efforts does not in itself entitle plaintiff to fees from defendant. In County of Tulare v. City of Dinuba,[ 205 Cal. 111, 270 P. 201 (1928)], the Supreme Court stated:
‘The underlying principle in all the cases where one has been allowed compensation out of a common fund belonging to others for expenses incurred and services rendered on behalf of the common interest is the principle of representation or agency----The fact that one may be benefitted by an action brought by another is not of itself sufficient to justify a court in assessing costs against the one who also profits by said action. Some contractual relation or some equitable reason sufficient to support an allowance of costs must be shown to exist to justify a court of equity in making such assessment.’
“Here, there is no contractual relation or overriding equitable rationale of unfairness to plaintiff which supports an allowance of fees.” Neal, 141 Cal. App. 3d at 539.
Adopting this reasoning, the dissenting justice in the Montana case further noted that the common fund doctrine is “ ‘rooted in the equitable concept of quasi-contract.’ [Citations omitted.] It is applied in cases involving ‘principle^] of representation or agency.’ [Citation omitted.]” Flynn, 312 Mont, at 419. It does not, however, apply simply because one benefits from the efforts of another.
The dissent in Flynn is consistent with the second line of cases applying the common fund doctrine in situations similar to the one before us. In one such case, the Nebraska Supreme Court adopted similar reasoning to the dissent in Flynn when it refused to apply the common fund doctrine and included attorney fees in the amount of a benefit reduction. In Kindred v. City of Omaha Emp. Ret. Sys., 252 Neb. 658, 564 N.W.2d 592 (1997), the claimant sought reimbursement from the City’s retirement system under the common fund doctrine for attorney fees that he incurred in a workers compensation action after the retirement system offset those benefits from his disability retirement pension. Omaha Municipal Code Section 22-35 stated, in relevant part:
“ ‘Any member of the system who has at least five (5) years of service credit and has sustained and/or shall sustain injuries or sickness, which immediately or after a lapse of time permanently unfit such member for active duty, shall receive a monthly disability pension as long as he or she remains unfit for active duty or until he or she reaches age sixty-five (65), whichever event occurs first. Such monthly disability pension in combination with workers’ compensation and social security shall not exceed sixty (60) percent of such member’s base compensation for the last full month prior to disability.’ ” Kindred, 252 Neb. at 659-60.
The parties agreed that the language of the city ordinance allowed the Retirement System to deduct the full amount of the claimant’s workers compensation award from the retirement pension. The claimant’s attorney appeared before the Retirement System’s board of trustees and requested that one-third of the amount of workers compensation benefits that were deducted from the claimant’s disability retirement pension be returned to him as reimbursement for attorney fees incurred in the workers compensation case. The board of trustees agreed to reimburse the claimant for attorney fees and costs with respect to some of his permanent partial disability benefits in the total amount of $5,991 but denied his claim for reimbursement of other attorney fees.
Unsatisfied, the claimant brought an appeal to the district court, contending that the Retirement System had benefited by reducing his service-connected disability pension entitlement by the full amount of the workers compensation benefits. The Retirement System, therefore, should be required under the common fund doctrine to reimburse the claimant for the full amount of attorney fees which he paid with respect to those benefits. The district court ruled in favor of the Retirement System, concluding the attorney s efforts had not created a common fund but instead had merely resulted in workers compensation benefits that reduced the claimant’s disability retirement pension. The district court found the claimant was receiving all of the workers compensation and disability retirement benefits to which he was entitled and that it would be unfair to require the Retirement System to pay the fee which the claimant contracted to pay his attorney in the workers compensation case, especially since there was no language in the city ordinance creating such an obligation.
On appeal, the Nebraska Supreme Court observed that prior precedent held that “the common fund doctrine presupposes the existence of a fund.’ ” Kindred, 252 Neb. at 663. In the situation before it, the court concluded here was no “common fund” upon which application of the common fund doctrine could be predicated. The claimant received his workers compensation benefits and paid his attorney in full pursuant to their contract. The Kindred court noted that the Retirement System did not claim or receive a disbursement of money from any source, and there was no fund within the jurisdiction of the district court from which it could have ordered disbursements. Kindred, 252 Neb. at 664.
Instead, the Retirement System simply calculated the claimant’s disability retirement pension benefits in the manner prescribed by the city ordinance, deducting the full amount of workers compensation benefits from his monthly disability retirement entitlement. “It is undisputed that this is exactly what the ordinance required,” stated the Kindred court. Kindred, 252 Neb. at 664. Further, the city ordinance defining disability retirement pension benefits contained no permissive language similar to a Nebraska statute, which provided that attorney fees incurred in obtaining a recovery from a third party could be prorated between an injured employee and the subrogated employer or workers compensation insurer. Kindred, 252 Neb. at 664 (citing previous version of Neb. Rev. St. § 48-118). Observing that the city ordinance did not provide for excluding the attorney fees from the workers compensation reduction, the Kindred court determined that the district court correctly found that the common fund doctrine afforded no basis for judicial imposition of such a requirement. Kindred, 252 Neb. at 664; see Dear v. Union Cent. Life Ins. Co., 573 F. Supp. 2d 958, 963 (W.D. Tex. 2008) (holding that under Texas law as predicted by federal court, common fund doctrine did not apply to limit group accident insurer s contractual subrogation right to recover its payments from proceeds of employee’s settlement with third-party tortfeasor by amount of its fair share of attorney fees and expenses incurred in securing recovery); Kramer v. State Retirement Bd., 195 P.3d 925, 931-32 (Utah App. 2008) (holding that common fund doctrine did not apply to invalidate subrogation provision of public employee health insurance policy).
As we consider these two divergent lines of cases, we find the view represented by the Nebraska Supreme Court’s decision and the dissent in Flynn to be more persuasive. While the equitable approach adopted in the cases using the common fund doctrine is somewhat alluring, its application under these circumstances is contrary to the rule. The Retirement Board had no interest in Robinson’s workers compensation award and did not have an agency or contractual relationship with her. There was no “common fund” or “common interest” in the workers compensation award. Further, although Wichita’s retirement fund did not have to pay out as much as it would have had Robinson not received workers compensation benefits, the puipose of the common fund doctrine is not to require the sharing of attorney fees with everyone who derives a financial benefit from a claimant’s settlement or award. Further, as we have discussed, Wichita Code Section 2.28.150(d)(3) is clear and unambiguous and does not create an exception for attorney fees. Hence, the Retirement Board appropriately applied the provision by reducing the retirement disability benefit by the entire workers compensation award, including the attorney fees.
The district court’s decision directing the Retirement Board to reduce the workers compensation deduction by the amount of attorney fees and costs incurred in Robinson’s workers compensation case is reversed. The Retirement Board’s calculation of retirement disability benefits in which it utilized the full amount ($125,000) of workers compensation benefits received by Robinson is affirmed. | [
-44,
-6,
-43,
94,
8,
-29,
58,
-126,
113,
-75,
39,
83,
-21,
43,
21,
107,
-13,
-99,
80,
99,
-10,
-93,
51,
74,
-36,
-77,
-23,
-59,
-70,
79,
-26,
-106,
76,
48,
74,
-43,
102,
-62,
-51,
84,
-54,
6,
-118,
-23,
121,
64,
52,
111,
-112,
3,
49,
-50,
-70,
-88,
25,
73,
40,
12,
93,
-32,
-47,
-95,
-118,
5,
127,
23,
34,
4,
-104,
-17,
-44,
42,
-100,
57,
104,
-24,
114,
-90,
-122,
54,
107,
-103,
-124,
98,
100,
32,
49,
-83,
-44,
-80,
14,
-41,
-99,
-92,
-69,
-39,
122,
15,
-108,
-68,
77,
20,
6,
124,
-10,
28,
15,
108,
25,
-114,
-116,
-79,
-17,
101,
-100,
-121,
-17,
-121,
-126,
101,
-40,
-30,
93,
-121,
50,
27,
-50,
-100
] |
The opinion of the court was delivered by
Nuss, J.:
This case considers the application of the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., to a law enforcement detention. Jose Mora Soto was lawfully stopped for a traffic violation in Bonner Springs in Wyandotte County. He was then arrested and detained at a Wyandotte County detention facility pursuant to a Johnson County arrest warrant issued for a similarly named individual. Upon Soto’s release 2Vz days later, he brought suit for false arrest and imprisonment against the City of Bonner Springs, Unified Government of Wyandotte County/Kansas City, the Wyandotte County Sheriffs Department, and various officers. The district court granted summary judgment in favor of all defendants on various bases.
Soto appealed only the summary judgments granted to the Unified Government of Wyandotte County/Kansas City, and the Wyandotte County Sheriffs Department (collectively County). The Court of Appeals affirmed the summary judgment, holding that the Wyandotte County detention officers were engaged in a discretionary function in deciding whether to further investigate if Soto was the person named in the arrest warrant. Accordingly, the discretionary function exception of the KTCA provided the County with immunity from liability for false arrest and imprisonment. Soto v. City of Bonner Springs, 38 Kan. App. 2d 382, 385, 166 P.3d 1056 (2007). We granted Soto’s petition for review under K.S.A. 60-2101(b).
As we understand Soto’s brief to this court and his accompanying oral arguments, he essentially raises only one argument on appeal. The rest of his issues are therefore abandoned. See State v. Richmond, 289 Kan. 419, 437, 212 P.3d 165 (2009) (An issue not briefed by an appellant is deemed waived or abandoned.). His basic appellate issue is whether the County is immune from liability under the discretionary function exception of the KTCA.
We answer: “Yes.” Accordingly, we affirm the district court and the Court of Appeals.
Facts
In November 2003, Soto was stopped by Bonner Springs Police Officer Mark Stites, who noticed that Soto’s license plate was loose and hanging. Officer Stites was told by a police dispatcher that the license plate on the car Soto was driving belonged to a car of a different make and model. In Soto’s deposition, he testified that the license plate on the car he was going to drive had expired, so he put on a license plate from another.
Soto provided Officer Stites a driver’s license for Jose M. (Mora) Soto. Consequently, Stites requested information from the dispatcher about Jose M. Soto, a Hispanic male with a date of birth of December 26, 1973, a height of 5'5", and a weight of 165 lbs. The dispatcher advised Stites of a Johnson County warrant for a Jose L. (Luis) Soto, a Hispanic male with a date of birth of December 24, 1973, a height of 5'3", and a weight of 115 lbs. Ac cording to Stites’ affidavit, the driver’s license given to him by plaintiff Soto contained the same number as the driver’s license on the warrant provided by the dispatcher, and he confirmed this match with the dispatcher. These facts are uncontroverted in Soto’s response to the County’s summary judgment motion. At oral arguments, Soto’s attorney conceded that his client’s driver’s license number was corroborated, i.e., it also appeared in the warrant.
Officer Stites asked the dispatcher if the Soto warrant was still valid, and the dispatcher told him it “had been confirmed.” Stites arrested Soto and transported him to the Wyandotte County Detention Center with the understanding that someone from the Johnson County Sheriff s Department would pick him up. Soto testified in his deposition that he protested his arrest and attempted to inform Stites that he was not the person named in the warrant. According to Soto’s brief, he also “attempted to tell the jail personnel that he was not the person named in the warrant.”
Deputy David Ornelas was the intake booking officer at the Wyandotte County Detention Center. According to Ornelas’ affidavit, he called the Johnson County Sheriffs Department’s warrants desk. His purpose was to confirm the existence of the warrant and to malee certain that Johnson County still wanted Wyandotte County to detain Soto. Ornelas provided the Johnson County deputy “the information on [Stites’] arrest report,” including Soto’s first and last names, middle initial, date of birth, and the number of the warrant on which Soto had been arrested. The Johnson County deputy confirmed that “a warrant existed for Mr. Soto’s arrest” and requested that Wyandotte County continue to detain Soto. Ornelas then proceeded to book Soto on the Johnson County warrant. Soto did not controvert any of these facts in his response to the County’s motion for summary judgment.
After approximately 2Yz days in custody, Soto was picked up by authorities from Johnson County. Not long after he arrived at their facility, Soto pointed out that he did not look like the person pictured on the warrant. He was then released.
Soto filed a petition claiming negligence against various officers, the City of Bonner Springs, Unified Government of Wyandotte County/Kansas City, and the Wyandotte County Sheriff s Depart ment. Soto later conceded that all of his negligence claims were, in fact, claims for false arrest and imprisonment.
The City of Bonner Springs and its officers filed a motion for summary judgment arguing that Soto’s claim for false arrest was filed outside of the 1-year statute of limitations. They also claimed immunity from liability under certain portions of the KTCA — most importantly, the discretionary function exception.
In the County’s motion for summary judgment, it argued the officers were legally justified in detaining Soto because there was probable cause to believe a valid warrant existed for his arrest. The County claimed that the officers had no duty to investigate whether Soto was the person named in the Johnson County warrant. Finally, the County argued that the discretionaiy function and police protection exceptions in the KTCA provided immunity from any liability.
After hearing arguments, the district court granted summary judgment to Bonner Springs and the County. The judge concluded that Soto’s petition as to the Bonner Springs entities and individual officers was barred by the statute of limitations, that there was probable cause to believe there was a valid warrant for Soto’s arrest, and that the discretionaiy function exception applied to all of Soto’s claims against both Bonner Springs and the County. Soto appealed only the judge’s order granting summaiy judgment to the County. The Court of Appeals affirmed on the basis of the discretionary function exception, and we granted Soto’s petition for review.
More facts will be provided as necessary to the analysis.
Analysis
Issue: The County is immune from liability under the discretionary function exception of the KTCA.
The Court of Appeals affirmed the district court’s summary judgment on one basis: even if the defendants owed Soto a duty and breached that duty, Soto’s claims were barred by the discretionary function exception to liability of the KTCA. As we understand Soto’s brief and clarifying oral arguments to this court, he makes no federal claims. We further understand his arguments on appeal are limited to (1) once he asserted a claim of mistaken iden tity, County detention personnel had an affirmative duty to investigate his claim, and (2) that they lacked discretion to detain him without investigation.
For purposes of our review, we assume, but do not decide, that a duty existed. As discussed below, we agree with the district court and the Court of Appeals: the County is immune from liability under the discretionary function exception.
Standard of Review
The district court’s conclusion that the County is immune from liability under an immunity exception of the KTCA is a matter of law. See Jarboe v. Board of Sedgwick County Comm’rs, 262 Kan. 615, 622, 938 P.2d 1293 (1997). Therefore, our review is de novo. See Stroda v. Joice Holdings, 288 Kan. 718, 720, 207 P.3d 223 (2009) (when material facts are undisputed, appellate review of the district court’s grant of summary judgment is de novo); Wilson v. Kansas State University, 273 Kan. 584, 586-87, 44 P.3d 454 (2002).
Discussion
The KTCA is an “open ended” act, meaning that liability is the rule and immunity is the exception. Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 364, 819 P.2d 587 (1991). The burden is on the government to establish immunity under one of the exceptions. 249 Kan. at 364.
We recently discussed the analytical framework of the KTCA in Adams v. Board of Sedgwick County Comm’rs, 289 Kan. 577, 585, 214 P.3d 1173 (2009):
“Hence, the analytical matrix established by the legislature in enacting the KTCA dictates that a governmental entity can be found hable for the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment only if (1) a private person could be hable under the same circumstances and (2) no statutory exception to liability applies.”
We will follow the framework affirmed by Adams.
A private person could be held liable for false imprisonment and arrest
A claim of false imprisonment and arrest maybe asserted against either a private individual, a private corporation, or state officials. See, e.g., Alvarado v. City of Dodge City, 238 Kan. 48, 58, 708 P.2d 174 (1985) (discussing the history of false arrest and imprisonment as it applies to merchants); Hammargren v. Montgomery Ward & Co., 172 Kan. 484, 241 P.2d 1192 (1952); Lewis v. Montgomery Ward & Co., 144 Kan. 656, 62 P.2d 875 (1936). In fact, the Kansas Legislature has enacted a “merchant defense” statute, K.S.A. 21-3424(C), that this court has interpreted as applying to both criminal prosecutions and civil claims for false arrest and imprisonment. Codner v. Skaggs Drug Centers, Inc., 224 Kan. 531, 533, 581 P.2d 387 (1978). Because a private person could be liable under the same circumstances, we must address whether a statutory exception to liability, i.e., a governmental immunity, applies.
Discretionary function statutory exception to liability
The immunity relied upon by the district court and Court of Appeals, the governmental discretionary function exception, is contained in K.S.A. 2003 Supp. 75-6104(e) and states:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.”
The term “discretionary function or duly” is not defined in the KTCA. To determine whether the function or duly is discretionary, Kansas courts look foremost to the nature and quality of the discretion exercised. Bolyard v. Kansas Dept. of SRS, 259 Kan. 447, 452, 912 P.2d 729 (1996); Robertson v. City of Topeka, 231 Kan. 358, 361-62, 644 P.2d 458 (1982). The mere application of any judgment is not the hallmark of the exception. See Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 623, 731 P.2d 314 (1987) (whether employee used wet or dry mop or plain water or detergent in cleanup of vomit on floor is ministerial because these choices do not involve any particular skill or training; discretionary function exception does not apply).
We have consistently recognized that where there is a “clearly defined mandatory duty or guideline, the discretionary function exception is not applicable.” Nero v. Kansas State University, 253 Kan. 567, 585, 861 P.2d 768 (1993); see Barrett v. U.S.D. No. 259, 272 Kan. 250, 263, 32 P.3d 1156 (2001); Kansas State Bank & Trust Co., 249 Kan. at 365. A mandatory guideline can arise from agency directives, case law, or statutes. Barrett, 272 Kan. at 263 (stating legal duty may arise by case law or by statute); Bolyard, 259 Kan. at 452-54 (agency directives).
However, if there is a duty owed (and breached), the discretionary function exception to liability is not necessarily barred as a defense. If it were otherwise, there would be little, if any, need for the existence of this statutory immunity for the tortfeasor s negligence. See Schmidt v. HTG, Inc., 265 Kan. 372, 392, 961 P.2d 677 (1998) (“Although governmental entities do not have discretion to violate a legal duty, we have not held that the existence of any duty deprives the State of immunity under the discretionary function exception. If such were tire case, K.S.A. 75-6104(e) could never apply in a negligence action, for in order to recover for negligence, a plaintiff must establish the existence of a duty.”); see also Barrett, 272 Kan. at 264 (the discretionary function exception provides a defense against ordinary negligence).
As we understand Soto’s basic argument, he first contends that the County detention personnel possessed a mandatory duty to investigate his claims under agency directives, a duty they had no discretion to fail to perform. He refers to the County’s policy, Wyandotte County Sheriff s Office Detention Center Standard' Operating Procedure No. C-100. It directs jail personnel during the intake process to “receive and review” the documents of those persons arrested “with an eye for the content and the correct statement of charges.” Soto contends that this document expresses a policy reflecting the duty assigned to the County in K.S.A. 22-2304, which imposes a duty of care that the person in the warrant be identified with reasonable certainty. Subsection (1) of that statute states in relevant part:
“The warrant shall be signed by the magistrate and shall contain the name of the defendant, or, if his name is unknown, any name or description by which he can be identified with reasonable certainly.”
The Court of Appeals panel pointed out that all of the detention officers, in reviewing the arrest documents, performed the duties stated in Procedure No. C-100. Nothing in the Procedure required the officers to perform a broader investigation, e.g., compare fingerprints, access photographs, or take a DNA sample for potential analysis. Further, as the County pointed out, nothing in K.S.A. 22-2304(1) limits the officers’ discretion under the current facts. By its plain language, the statute applies to the magistrate issuing the warrant and requires a description only if the name of the defendant is unknown. As a result, die County contends that the statute does not apply to the actions of its detention officers. We agree with the rationale of the County and the Court of Appeals.
Soto next points to excerpts from a deposition of Lt. Tracy McCullough of the Wyandotte County Sheriff s Department that he alleges were made in the unrelated case of Echols v. Unified Government of Wyandotte County/Kansas City, Kan., Case No. 04-2484 (D. Kan. 2004). There, Lt. McCullough stated her general opinion of the usual intake procedure. She testified that even if she did not believe an inmate’s claim that he or she was not the person named in the warrant, she would look into it. The County responds that she in no way opined that the County had a policy for such circumstances. Rather, Lt. McCullough testified about what she had the discretion to do when someone made a claim of mistaken identity during the booking process. We agree. McCullough was not expressing a County policy or her duty; only her individual practice. As additional support for this conclusion, we observe that Soto failed to controvert a material fact asserted by the County in its motion for summary judgment that was contained in an affidavit from a department captain, James Eickhoff: “The decision about whether to investigate a claim of mistaken or wrongful arrest was left to the discretion of the booking officer or intake supervisor. The decision about how to conduct such an investigation also was left to the booking officer’s or intake supervisor’s discretion.”
Soto next argues that the failure of County detention personnel to ensure with reasonable certainty that they were holding the correct person amounts to wanton conduct. He appears to make this argument because wanton conduct is not covered by the discretionaiy function exception. See Barrett, 272 Kan. at 264.
Wantonness has long been defined in Kansas case law:
“A wanton act is something more than ordinary negligence, and yet it is something less than willful injury; to constitute wantonness, the act must indicate a realization of the imminence of danger and a recldess disregard and complete indifference and unconcern for the probable consequences of the wrongful act. It is sufficient if it indicates a recldess disregard for the rights of others with a total indifference to the consequences, although a catastrophe might be the natural result.” Saunders v. Shaver, 190 Kan. 699, 701, 378 P.2d 70 (1963).
See Reeves v. Carlson, 266 Kan. 310, 313-14, 969 P.2d 252 (1998).
However, there is no evidence from which a reasonable jury could conclude that the County personnel acted in a wanton manner, e.g., with a recldess disregard for Soto’s rights and complete indifference to the probable consequences. By contrast, we generally note that Deputy Ornelas called the Johnson County warrants deputy, provided Soto’s personal information from Stites’ arrest report and, after relating this information, received confirmation of the continuing validity of the warrant under which Soto had been arrested and confirmation that Johnson County wanted Soto detained. See Warner v. Stover, 283 Kan. 453, 456, 153 P.3d 1245 (2007) (in considering summaiy judgment, court must determine whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law).
Soto additionally argues that the County had notice that a failure to investigate a claim of mistaken identity and a continued detention of an individual whom it should know is probably not the person named in the warrant would make the County liable for false imprisonment. In support of this argument, Soto lists four cases where he alleges the County was successfully sued for other false arrest and false imprisonment claims. He refers to these cases as: “Daniel Kirkpatrick v. Unified Government of Wyandotte County/Kansas City, Kansas, et al. [,] 99-2450 (D. Kan[.] 1999); Alonzo Echols v. Unified Government of Wyandotte County/Kansas City, Kansas, et al., 01-2291 (D. Kan[.] 2001)[;] Fugate v. Unified Gov’t of Wyandotte County et al[.], 01 CV 02069 (D. Kan[.] 2001); [and] Alonzo Echols v. Unified Government of Wyandotte County/Kansas City, Kansas, et al.[,] 04-2484 (D. Kan. 2004).”
The Court of Appeals panel held that the prior litigation did not provide notice to the County because there was no proof that officers involved in the instant case were involved in, or had any knowledge of, the prior court actions. See Soto, 38 Kan. App. 2d at 387. More important, in Soto’s argument he fails to indicate how these prior cases provided, or created, a “clearly defined mandatoiy duty or guideline,” i.e., to show that as a matter of law the discretionary function exception cannot apply. See Nero, 253 Kan. at 585.
We turn now to Soto’s basic argument: that detention personnel, i.e., Ornelas, had no discretion to detain him without investigating his claim of mistaken identity.
We begin our analysis by observing that Soto points to no Kansas case law establishing an affirmative duty for officers to investigate all claims of mistaken identity. Our research identifies none. Our case law does provide some guidance on discretion from other contexts, however.
In G. v. State Dept. of SRS, 251 Kan. 179, 833 P.2d 979 (1992), this court held that the decision by the Kansas Department of Social and Rehabilitation Services (SRS) to remove a child from a foster care home after an investigation and finding of sexual abuse was within the discretionary function exception. In G., there were no specific guidelines to determine the proper course of action after a finding of sexual abuse. Similarly, in Beebe v. Fraktman, 22 Kan. App. 2d 493, 496, 921 P.2d 216 (1996), the Court of Appeals cited G. to support its holding that the SRS’s decision whether to open a file for further investigation of two episodes of allegations of child neglect or abuse by a father is a discretionary function. And in Burney v. Kansas Dept. of SRS, 23 Kan. App. 2d 394, 931 P.2d 26 (1997), the Court of Appeals then relied upon Beebe to hold that the SRS’s manner of conducting an investigation into a charge of child abuse by a teacher is a discretionary function:
“The next claim of liability is based on the failure of SRS to conduct a proper investigation. We have held the decision as to whether to open a file for further investigation is a discretionary function. Beebe, 22 Kan. App. 2d at 496. We hold that the manner of conducting an investigation into a charge of child abuse is also a discretionary function. SRS is granted immunity from liability in the performance of discretionary functions by the provisions of 75-6104(e). If there was any fault or negligence on the part of SRS in conducting the investigation into the allegations of child abuse in this case, no liability could be predicated on that fault under the aforementioned section of the Kansas Tort Claims Act.” (Emphasis added.) 23 Kan. App. 2d at 402-03.
Likewise, in Bolyard, 259 Kan. 447, this court ruled that SRS’s decision to temporarily place children with their mother was entitled to immunity under the discretionary function exception:
“Plaintiffs complain specifically that SRS was negligent in failing to talk to [mothers] parole officer and failing to adequately monitor the household. The means by which placements are monitored and the people to whom social workers converse in supervising placements are not subject to any carefully drawn, precise legal standard, but involve discriminating judgment between competing interests and are clearly beyond the nature and character of acts the legislature intended to be subject to judicial review.” (Emphasis added.) 259 Kan. at 455-56.
Similarly, in Schmidt, 265 Kan. 372, plaintiffs’ daughter was raped and killed by a former restaurant coworker who had been conditionally released from prison. They brought a personal injury and wrongful death action against various parties, including a claim alleging that the Kansas Department of Corrections and a state parole officer were hable for failure to notify their daughter’s employer of her coworker’s prior convictions for rape and aggravated sodomy. This court held that the officer’s failure to disclose the criminal history to the employer fell within the discretionary function exception.
Likewise, in farhoe, 262 Kan. 615, plaintiffs’ son was shot by an escapee from a youth residential facility where the shooter had been placed by SRS following a juvenile court adjudication. Plaintiffs pursued several claims for personal injuries against several entities, including a claim against SRS for the shooter’s negligent placement in the facility. This court rejected this claim, holding that the placement of a juvenile offender at a residential facility was a discretionary function. 262 Kan. at 631; cf. Woodruff v. City of Ottawa, 263 Kan. 557, 566-67, 951 P.2d 953 (1997) (police decision whether to take an intoxicated individual into custody is discretionary and entitled to immunity).
Based upon our review of this Kansas case law, we hold that the County detention officers’ actions were discretionary and therefore are afforded immunity under the KTCA. At least one court has held that allegations of mistaken identity at jail are not unusual. Davis v. Klevenhagen, 971 S.W.2d 111 (Tex. App. 1998). The decision whether to do anything about a claim of mistaken identity may or may not be discretionary. Cf. Beebe, 22 Kan. App. 2d at 496 (whether to open file to investigate possible child abuse by father is discretionary). That is a determination we need not make today under our case’s facts. But the precise steps to be taken by detention personnel to consider such a claim, e.g., to verify personally identifying information, is discretionary. Burney, 23 Kan. App. 2d at 402-03 (manner of conducting an investigation into charge of child abuse is discretionary); cf. Bolyard, 259 Kan. at 455-56 (people to whom social workers converse in supervising child placements are not subject to any carefully drawn, precise legal standard).
Here Deputy Ornelas gave the Johnson County deputy at the warrants desk the information in Stites’ arrest report, including Soto’s first name, last name, middle initial, date of birth, and the number of the warrant on which Soto had been arrested. After receiving this information, the Johnson County deputy then informed Ornelas that the “warrant existed for Mr. Soto’s arrest” and requested Soto’s detention. While in retrospect it appears that Johnson County had a different middle initial and a different date of birth than those provided by Ornelas, there is no evidence its deputy advised Ornelas of any discrepancies. Indeed, Johnson County apparendy confirmed Ornelas’ information because its deputy then requested that Ornelas continue to detain Soto. Moreover, per Stites’ experience as described in his uncontroverted affidavit — and as suggested by Soto’s counsel’s concession at oral arguments- — if Ornelas had given to Johnson County the number of Soto’s driver’s license from the arrest report, that identifying information would also have been corroborated.
The Court of Appeals looked to Davis, 971 S.W.2d 111. In Davis, the deputy who worked in the bonding department of a jail was advised by a clerk that a jail visitor had an outstanding warrant. The visitor denied he was the person sought. Because this was not “an unusual response,” the deputy consulted the identifiers appearing in the computer system, compared them to the driver’s license, and determined the visitor was indeed the person sought in the warrant. 971 S.W.2d at 112. After confirming the warrant’s validity, the deputy arrested him. It was later shown to be a misidentification, and the arrestee sued for false arrest.
The Davis court held that the deputy’s investigation to determine whether Davis was the same individual named in the warrant was discretionary and therefore he was immune from liability for damages under Texas law:
“We believe the evidence shows that [the deputy’s] investigation culminating in his decision to arrest Davis required personal deliberation, decision and judgment and was a discretionary function. [Citation omitted.] An officers decision regarding ‘if, how, and when to arrest a person’ is discretionary. [Citation omitted.] Likewise, a police officer is engaged in a discretionary function in determining ‘how to investigate, and to what extent to investigate before seeking a warrant. ’ [Citation omitted.] We see no reason why the same investigatory discretion should not apply to an officer seeking to determine whether a presenting individual is the same individual named in an arrest warrant. In making this determination, [the deputy] was required to ‘pass on facts and determine his actions by the facts found,’ and was thus exercising a discretionary function.” (Emphasis added.) 971 S.W.2d at 117-18.
The rationale and holding of the Davis court is consistent with the Kansas case law on the discretionary function exception as set forth above.
Soto primarily refers us to Perez-Torres v. State, 42 Cal. 4th 136, 64 Cal. Rptr. 3d 155, 164 P.3d 583 (2007). There, Lenin Freud Perez-Torres had been arrested for, but not charged with, spousal abuse. He was fingerprinted and assigned a criminal identification and information number. Later, one Lenin Salgado Torres, a/k/a Lenin Freud Perez, was charged with spousal abuse, fingerprinted, assigned a criminal identification and information number, and sent to prison after his guilty plea. Perez-Torres’ number was mistakenly entered into Salgado’s parole database.
Perez-Torres was later arrested for DUI. The parole database mistakenly indicated that he (by Salgado’s name) was on parole and was therefore in violation. He was arrested and upon his jail arrival advised his parole agent the authorities had the wrong man. Twenty-five days later, after fingeiprint comparison, he was released from custody because of mistaken identity. He then brought suit for false imprisonment.
The Perez-Torres court rejected the State’s discretionary function immunity defense under these facts, distinguishing between basic policy decisions and actions simply implementing them:
“Here, the state’s decision to revoke Salgado’s parole, based on the mistaken belief that plaintiff, a nonparolee, was Salgado, was — like the decision in Johnson [o. State, 69 Cal. 2d 782 (1968),] to place the dangerous youth on parole with the foster parents — a basic policy decision and thus within the governmental immunity provision of section 845.8(a) [California statute which includes a discretionary immunity element]. After that basic policy decision was made, however, the state defendants’ conduct in keeping plaintiff in jail after they knew or should have known that he was the wrong man was — like the failure in Johnson to warn the foster parents of the youth’s dangerous propensities — an action implementing the basic policy decision and thus outside the statutory immunity, making it subject to legal redress on the question of negligence by the state. [Citation omitted.] Just as [statutory discretion element of immunity] was inapplicable in Johnson to the state’s failure to warn the foster parents, so too here it is inapplicable to the state defendants’ decision to keep plaintiff in jail after they knew or should have known he was not parolee Salgado.” 42 Cal. 4th at 135.
The Perez-Torres approach — determining whether the discretionary function exception applies by differentiating between basic policy decisions and actions implementing the basic policy decisions — is inconsistent with Kansas case law. In Robertson v. City of Topeka, 231 Kan. 358, 361, 644 P.2d 458 (1982), we rejected the similar “planning level-operational level” analysis to determine whether the discretionary function exception applied. We later confirmed that the Kansas analysis is instead based upon the “nature and quality of the discretion” exercised:
“In Robertson v. City of Topeka, 231 Kan. 358, 361-62, 644 P.2d 458 (1982), we determined that in deciding whether the discretionary function exception applies, it is the nature and quality of the discretion exercised which should be the focus rather than the status of the employee exercising the discretion. The test is whether the judgment of the governmental employee is of the nature and quality which the legislature intended to put beyond judicial review.” Bolyard, 259 Kan. at 452.
In short, we conclude that a detention officer s decision on how to investigate Soto’s claims of mistaken identity was of the “nature and quality which the legislature intended to put beyond judicial review.” Bolyard, 259 Kan. at 452.
Judgment of the Court of Appeals affirming the summaiy judgment granted in favor of the County is affirmed. Judgment of the district court is affirmed. | [
-44,
-22,
-15,
28,
14,
96,
50,
12,
115,
-69,
118,
115,
-19,
-53,
5,
59,
-6,
61,
100,
105,
-59,
-78,
3,
-119,
84,
115,
-40,
-43,
59,
79,
-26,
-44,
77,
112,
-118,
-43,
6,
72,
-43,
92,
-114,
0,
-119,
-47,
81,
67,
-68,
107,
-110,
-102,
-15,
-81,
-5,
42,
24,
67,
-20,
44,
27,
-89,
-11,
-16,
-104,
21,
-33,
20,
35,
4,
-104,
-121,
80,
57,
-108,
57,
16,
-20,
114,
-74,
-126,
-12,
111,
-101,
-127,
98,
98,
97,
24,
-57,
-96,
-88,
14,
-66,
31,
-25,
-104,
88,
107,
12,
-106,
-100,
117,
22,
11,
-4,
-25,
4,
95,
-20,
-125,
-50,
-76,
-79,
-49,
116,
2,
89,
-33,
97,
52,
65,
-50,
-26,
92,
-57,
50,
-101,
-17,
-108
] |
The opinion of the court was delivered by
Biles, J.:
Kansas Truck Center and its insurance carrier challenge a workers compensation award to William Alvin Redd for permanent partial impairments to portions of his right and left upper extremities due to work-related injuries. The Workers Compensation Board ruled the injured worker’s multiple right upper extremity impairments developed as a natural consequence of a 2003 crush injury to Redd’s left hand and subsequent overcompensation use for that left hand injury. We hold there is substantial competent evidence supporting the Board’s findings.
In making this determination, we address and resolve a conflict among Court of Appeals panels regarding the appropriate standard of review to employ when an agency’s action is attacked as being unsupported by substantial competent evidence. This conflict arose following amendments in 2009 to the Kansas Judicial Review Act, see K.S.A. 2009 Supp. 77-601 et seq.; L. 2009, ch. 109, secs. 23-30, which altered the statutory standard of review under K.S.A. 77-621(c). The panels have divided on whether those amendments are retroactive. We hold they are not. Both K.S.A. 77-621(a)(2) and K.S.A. 2009 Supp. 77-621(a)(2) contain a savings clause limiting the revised standard of review in K.S.A. 2009 Supp. 77-621(c)(7) and (d) to agency decisions issued on or after July 1,2009. Accordingly, because the agency finding in this case was made before the 2009 amendments became effective, We apply the standard of review under K.S.A. 77-621(c)(7) in effect when the agency issued its order that found Redd’s multiple right upper extremity impairments developed as a natural consequence of the crush injury to his left hand.
Next, we decide the correct methodology to calculate awards when an employee suffers multiple scheduled injuries. A majority of the Board held Redd was entitled to five separate scheduled injury awardsone for each impairment to a scheduled member of his right and left upper extremities. Kansas Truck Center argues Redd’s injuries should have been combined into a single whole body impairment as contemplated by the American Medical Association Guides to Evaluation of Permanent Impairment (Guides) (4th ed. 1995). We hold the correct statutory interpretation requires assignment of separate awards for each scheduled member suffering disability or impairment that appears in the K.S.A. 44-510d schedule and affirm the method used in this case.
In reaching this conclusion, we decline to endorse a competing methodology also used by the Board in at least one other claim that combined multiple injuries to the same extremity to the highest level of injury on that extremity. Our disagreement with that approach is discussed below and in our decision in Mitchell v. Petsmart, Inc., 291 Kan. 153, 239 P.3d 51 (2010).
Finally, we reject Kansas Truck Center s claim that the $50,000 compensation cap in K.S.A. 44-510f(a)(4) limits Redd’s award. We hold the statutory cap does not apply when a worker is awarded both temporary total disability benefits and permanent partial disability benefits for multiple scheduled injuries under K.S.A. 44-510d.
Factual and Procedural Background
Redd was a gear technician and diesel truck mechanic for Kansas Truck Center. He began working for the company in June 1996. His job required him to rebuild transmissions and work on suspensions and clutch assemblies. His left thumb was crushed in 2003 while repairing a semi-tractor trailer suspension. Redd immediately reported the injury to his supervisor. The company referred him to several doctors, who all agreed Redd should be placed on light duty work restrictions.
Initially, Redd did not miss any work other than for doctor appointments. For 7 months after the accident, he performed the same job tasks despite his light duty restrictions because Kansas Truck Center did not provide any accommodations to comply with the doctors’ limitations. During this period, Redd tried to avoid using his injured left hand and thumb area by finding different ways to perform his job. He testified he would balance heavy objects across the forearm of his left hand and use rope placed around his neck and tied with a noose to help carry heavy equipment parts. If a coworker was around, Redd would ask for help, but most times he performed the tasks himself by working with his right hand.
Redd claimed he began experiencing problems with his right upper extremity about 1 month after the crush injury to his left thumb. He testified he told his supervisor, an insurance company adjuster, and one of his doctors that he had pain in his right hand. Kansas Truck Center disputes this testimony, noting the medical records only mention treatment for Redd’s left extremity and do not reference right hand pain. Redd’s doctor fitted him with a custom spica split. But when he returned to work after this treatment, he was told by Kansas Truck Center that it could not continue to allow him to work because of the restrictions his doctor had placed on him. Redd last performed work for Kansas Truck Center on December 11, 2003. He underwent surgery to his left thumb in April 2004. Redd was formally terminated in October 2004.
Dr. J. Mark Melhom became Redd’s treating physician in 2005. Dr. Melhom performed surgeries on Redd’s right wrist and elbow, left wrist and elbow, and left thumb. Dr. Melhom testified the work Redd performed after the cmsh injury contributed to the conditions in his right upper extremity. Also in 2005, Dr. James L. Gluck examined Redd at Kansas Tmck Center’s request. This occurred before Dr. Melhom performed any surgery. Dr. Gluck testified he did not “see a well-defined pathologic process that would explain [Redd’s] symptomology.” Dr. Gluck found the left thumb abnormality was related to the cmsh injury and adopted another doctor’s impairment rating for that injury. But Dr. Gluck testified the symptoms in Redd’s right upper extremity and left upper extremity were not work related. Redd filed a claim under the Workers Compensation Act, K.S.A. 44-501 etseq.
The administrative law judge (ALJ) appointed Dr. Paul Stein to perform an independent medical evaluation in the workers compensation proceedings. In his report, Dr. Stein concluded Redd’s injury to his left thumb was the only left hand damage causally related to the cmsh injury, but he also found within a reasonable degree of medical probability that the cmsh injury could have caused carpal tunnel syndrome. Dr. Stein assigned 21 percent total impairment to the left thumb. Following the Guides, Dr. Stein converted the 21 percent impairment to the thumb into a 9 percent impairment to the hand, an 8 percent impairment to the upper extremity, and a 5 percent impairment to the whole person. He then assigned a 10 percent impairment to the left upper extremity for carpal tunnel syndrome.
Moving to the next step required by the Guides, Dr. Stein combined the 8 percent upper extremity impairment caused by the thumb and the 10 percent upper extremity injury caused by carpal tunnel into a 17 percent total left upper extremity impairment. Dr. Stein did not provide a combined whole body impairment calculation for these injuries. Even though he could not causally relate them to the crush injury, Dr. Stein assigned a 5 percent impairment to the left upper extremity for an impaired range of motion in Redd’s left wrist and a 3 percent right upper extremity impairment for lateral elbow pain if the ALJ disagreed with his causation findings.
Dr. Pedro Murati also examined Redd. Dr. Murati reported Redd complained of a grinding pain in his right thumb, numbness and tingling in the fingers, and a burning sensation in his right hand. Redd also told Dr. Murati his hands went numb when he was driving and his right shoulder felt out of alignment. Dr. Murati found these conditions were caused by overuse following the crush injury.
The ALJ entered an award for temporary total and permanent partial disability. Regarding the permanent partial disability, the ALJ determined Redd’s testimony, taken in conjunction with the medical opinions, established that Redd sustained work-related injuries to both his right and left upper extremities. The ALJ found Redd was entitled to an award based on the statutorily scheduled injuries to his right and left upper extremities as provided in K.S.A. 44-510d. The ALJ assigned a 21 percent impairment to the left upper extremity and a 10 percent impairment to Redd’s right upper extremity. The ALJ approved two scheduled injuries awards, one for each extremity. Redd requested review by the Board.
In that review, the Board entered its order finding Redd’s right and left upper extremity conditions were a natural consequence resulting from the crush injury to his left hand and Redd’s subsequent overcompensation use for that injury. The Board awarded Redd permanent partial and temporary total disability benefits. Regarding the permanent partial disability, the Board determined Redd had five scheduled injuries to his left hand and right upper extremities, rather than the two the ALJ awarded. The Board assigned the following regional impairment ratings: (1) 16 percent impairment to claimant’s left hand; (2) 10 percent for the left forearm (carpal tunnel syndrome); (3) 10 percent for the left arm (tunnel/ulnar nerve decompression); (4) 10 percent for the right forearm (carpal tunnel syndrome); (5) 15 percent for the right arm (right ulnar cubital tunnel decompression and lateral epicondylectomy).
But the Board members disagreed about how to calculate Redd’s award. A majority determined the statutes required separate awards for each scheduled injury. One dissenting Board member argued the multiple injuries should have been combined, based upon that member’s interpretation of K.S.A. 44-510d(a)(23), which provides “the loss of a scheduled member shall be based upon permanent impairment of function as determined using the [Guides], if the impairment is contained therein.” The dissenter went on to predict: “This dispute will arise each time the Board is asked to consider extremity injuries when the claimant is not found to be permanently and totally disabled and when the claimant has more than one body part injured in one or more extremities.”
Kansas Truck Center filed a timely appeal. Redd moved to transfer the case to this court, which was granted. Jurisdiction arises from K.S.A. 20-3018(c) (transfer from Court of Appeals).
Kansas Truck Center advances three issues before this court: (1) whether substantial competent evidence supported the Board’s determination that the left hand crush injury caused Redd’s right upper extremity impairments; (2) whether the Board erred by calculating permanent partial disability awards for each of Redd’s five scheduled impairments, instead of making one award for a whole body impairment; and (3) whether the Board erred by not applying the $50,000 cap specified in K.S.A. 44-510f(a)(4) for Redd’s tern poraiy total and permanent partial disability benefits award. We address each issue in order.
Issue One: Substantial Competent Evidence
Kansas Truck Center first challenges the Board’s factual findings that the injury to Redd’s right upper extremity was a natural consequence of the crush injury to his left thumb and Redd’s overcompensation use for that injury while he continued working for the company. Redd defends these determinations. The Board’s findings that Redd’s left upper extremity injuries were related to the left hand crush injury are not at issue.
Standard of Review
Our standard of review for cases under the Workers Compensation Act, K.S.A. 44-501 et seq., is statutorily controlled by the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. See K.S.A 44-556; K.S.A. 2009 Supp. 44-556. This Act was recently amended and renamed the Kansas Judicial Review Act (KJRA). L. 2009, ch. 109, secs. 23-30 (now codified at K.S.A. 2009 Supp. 77-601 et seq.). Review of an agency’s factual findings is permitted under K.S.A. 77-621(c)(7) and K.S.A. 2009 Supp. 77-621(c)(7), depending on the effective date of the agency action. Whether substantial competent evidence exists is a question of law. Casco v. Armour Swift-Eckrich, 283 Kan. 508, 514, 154 P.3d 494 (2007).
Effective July 1, 2009, the legislature revised the statutory standard of review of an agency’s factual determination. See K.S.A. 2009 Supp. 77-621(c)(7) and (d). Several Court of Appeals panels have since disagreed as to whether the new standard should be applied retroactively or whether it only applies prospectively to agency decisions issued on or after July 1, 2009. As revised, K.S.A. 2009 Supp. 77-621(d) now alters an appellate court’s analysis in three ways: (1) It requires review of the evidence both supporting and contradicting the Board’s findings; (2) it requires an examination of the presiding officer’s credibility determination, if any; and (3) it requires review of the agency’s explanation as to why the evidence supports its findings. The revised statute now states:
“(d) For purposes of this section, ‘in light of die record as a whole’ means that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77-620, and amendments thereto, cited by any party that supports such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency’s explanation of why the relevant evidence in the record supports its material findings of fact. In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review.” (Emphasis added.) K.S.A. 2009 Supp. 77-621(d).
When confronted with this revised statute, some Court of Appeals panels have held the statutory changes were procedural in nature and, therefore, should be applied retroactively. See, e.g., Douglas v. Ad Astra Information Systems, 42 Kan. App. 2d 441, 450-51, 213 P.3d 764 (2009), rev. granted June 23, 2010. But as pointed out recently by another Court of Appeals panel, those decisions ignore the savings clause contained in the legislation, K.S.A. 77-621(a)(2), now codified at K.S.A. 2009 Supp. 77-621(a)(2). Milano’s Inc. v. Kansas Dept. of Labor, 43 Kan. App. 2d. 779, 786-87, 231 P.3d 1072 (2010). Both K.S.A. 77-621(a)(2) and K.S.A. 2009 Supp. 77-621(a)(2) state: “[T]he validity of agency action shall be determined in accordance with the standards of judicial review provided in this section, as applied to the agency action at the time it was taken.” (Emphasis added.)
This court previously has held “all rights of action will be enforced under [procedural amendments] without regard to whether they accrued before or after such change of law and without regard to whether or not the suit has been instituted, unless there is a savings clause as to existing legislation.” (Emphasis added.) Jones v. Garrett, 192 Kan. 109, 114-15, 386 P.2d 194 (1963). Therefore, the savings clause in K.S.A. 77-621(a)(2) provides that the KJRA provisions in effect at the time of the agency action are controlling.
At the time at issue in this appeal, K.S.A. 77-621(c)(7) required review of the agency’s determination for evidence “that is substantial when viewed in light of the record as a whole.” Caselaw defined substantial evidence as evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper, furnishing a basis of fact from which the issue raised could be reasonably resolved. Graham v. Dokter Trucking Group, 284 Kan. 547, 553-54, 161 P.3d 695 (2007). Under this holding, the Board’s preamendment decision should be upheld if supported by substantial evidence, even though there is other evidence in the record supporting contrary findings. 284 Kan. at 554.
The decision is supported by substantial competent evidence
The ALJ and the Board both determined that overcompensation use from the crush injury to Redd’s left hand caused Redd’s right upper extremity injuries. The ALJ, the Board, and the parties do not articulate this point, but the secondary injury rule authorizes the award for the right upper extremity injuries under these facts. The rule provides “when a primary injury under the Work[ers] Compensation Act is shown to have arisen out of and in the course of employment every natural consequence that flows from the injury, including new and distinct injury, is compensable if it is a direct and natural result of the primary injury.” (Emphasis added.) Jackson v. Stevens Well Service, 208 Kan. 637, 643, 493 P.2d 264 (1972). This is what Redd claims. Whether a secondary injury is compensable as a natural and probable consequence of the primary injury depends upon the facts.
In agreeing with Redd, the ALJ relied upon the medical testimony of Drs. Melhom, Gluck, Murati, and Stein to conclude the injury to Redd’s right upper extremity was caused by its overcompensation use after the left-hand thumb crush injury. In rejecting Kansas Truck Center’s argument that the award should be limited to Redd’s left hand and thumb, the ALJ found Redd underwent surgery to his right upper extremity in connection with treatment for the crash injury. Dr. Melhom conducted these surgeries, and he testified the insurer approved of, and paid for, all of the procedures.
The Board agreed with the ALJ on this point. In finding causation existed for the injuries to both the left and right upper extremities, the Board cited Redd’s testimony that he returned to full duty work despite his light duty restrictions, but to do so he had to compensate for his injured left hand. The Board found this led to symptoms in his right hand and right arm within 3 to 4 weeks. The Board also found support in Dr. Melhorn’s opinion for its conclusion that Redd’s subsequent work activities contributed to the right upper extremity injuries, which required surgery.
But Kansas Truck Center urges that the Board’s causation finding regarding the injuries to the upper right extremity should be reversed because Redd’s testimony was not credible, the doctor’s testimony was insufficient, and the weight of the medical testimony did not support a causation finding that the left hand crush injury caused problems with the right upper extremities. All three arguments fail under our standard of review.
First, Kansas Truck Center attacks the credibility of Redd’s testimony supporting causation because, the employer argues, Redd did not report the upper right extremity problem to his treating physicians while he was still employed by the company. This argument is without merit because it involves a credibility determination made by the Board. This court will not reassess credibility on appeal. Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 709-10, 216 P.3d 170 (2009).
Redd testified he told his supervisor, an insurance company adjuster, and his doctor, while still employed, that he was experiencing pain in his right hand. The ALJ found this testimony credible and relied upon it when determining Redd properly notified his employer regarding the injuries to both his left and right extremities. The Board’s findings are consistent with this credibility determination. The Board held Redd notified his employer, the insurance carrier, and Redd’s doctor that he was having problems with his right upper extremity. The ALJ personally observed Redd’s demeanor and found his testimony credible. We will not disturb this determination.
Second, Kansas Truck Center argues Dr. Melhom, the doctor the Board relied upon, did not specifically state there was causation or that it was within a reasonable degree of medical certainty. Kansas Truck Center also challenges Dr. Melhom’s causation finding as not credible, claiming the doctor testified Redd’s complaints were unverifiable and noted Redd did not exhibit optimal effort during the grip tests.
But this misstates Dr. Melhom’s testimony and involves another credibility determination. Dr. Melhom concluded Redd’s work activities contributed to his right upper extremity injuries. Dr. Melhom conducted surgery on Redd’s upper right extremity while acting as the treating physician and assigned an impairment rating for the right arm. As to the veracity of Redd’s complaints, Dr. Melhom acknowledged he was unable to verify them through objective testing, but he further testified he believed the impairment rating was appropriate considering Redd’s medical history, the physical exam, and a nerve conduction study. Dr. Melhom also testified he did not have a reason to disbelieve Redd’s complaints. Accordingly, the record supports the Board’s reliance on Dr. Melhom’s testimony.
Third, Kansas Tmck Center argues the Board’s causation finding contradicts the weight of the medical testimony. Conceivably, this argument might have greater strength under the revised statutory standard of review under the KJRA discussed above, which requires examining the evidence both supporting and detracting from the agency’s findings. K.S.A. 2009 Supp. 77-621(d). But the argument certainly fails under the standard of review applicable under K.S.A. 77-621(c)(7) for this appeal because it was reasonable for the Board to principally rely upon Redd’s treating physician, whose testimony supported the Board’s finding.
Both Drs. Melhorn and Murati found causation. Their conclusions were buttressed by Redd’s testimony that symptoms in his right hand began 3 to 4 weeks after he began working while favoring it. Ultimately, this was another credibility determination. It was reasonable for the Board to accept the treating physician’s testimony, which was supported by Dr. Murati. We will not disturb this finding. We hold the Board’s causation decision was supported by substantial competent evidence in light of the record as whole.
Issue Two: Permanent Partial Disability Award Calculation
Next, Kansas Tmck Center challenges the Board’s method for calculating the permanent partial disability award. Various positions are advanced as the correct outcome. The Board’s majority held Redd was entitled to permanent partial disability compensa tion for five scheduled injuries. It issued separate awards for each of the five impairments, resulting in the following awards: (1) left hand totaled $9,650.88 for a 16 percent loss of use; (2) left forearm totaled $8,190.72 for a 10 percent loss of use; (3) left arm totaled $8,622.72 for a 10 percent loss of use; (4) right forearm totaled $8,190.72 for a 10 percent loss of use; and (5) right arm totaled $12,934.08 for a 15 percent loss of use. This resulted in a total permanent partial disability award of $47,589.12.
Kansas Truck Center counters that the Board should have combined these five impairments into one whole body impairment rating, resulting in one award. It argues this calculation method is required by K.S.A. 44-510d(a)(23), which adopts the Guides. In its brief, Kansas Truck Center argues “[t]he Guides’ method was appropriately used by the physician experts in this case, converting [Redd’s] regional impairments to a whole body impairment using the Combined Values Chart.” '
This is similar to the position taken in the Board’s dissenting opinion, which argued the Board should “determine the upper extremity impairments for each separate part as done by the majority, but, then, combine the upper extremity impairments as instructed by the [Guides].” The dissenting board member did not clarify whether he believed the Guides required calculating these injuries as a whole body impairment, as Kansas Truck Center argued, or combined as separate upper extremity impairments, as done by the Mitchell panel.
Standard of Review
Under the KJRA, this court may grant relief if the Board has erroneously interpreted or applied the law. K.S.A. 77-621(c)(4). Statutory interpretation is subject to unlimited appellate review. Higgins v. Abilene Machine, Inc., 288 Kan. 359, 361, 204 P.3d 1156 (2009). Redd argues this court should be deferential to the Board’s interpretation of the Workers Compensation Act when there is a rationale basis for its interpretation, citing Casco, 283 Kan. at 521.
But this argument ignores this court’s more recent decisions, which have recognized little utility for such deference given the long-standing admonition that appellate courts are always free to substitute their judgment for that of the administrative agency when reviewing a question of law. Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010) (“In this matter, an appellate court exercises unlimited review on the determinative question of statutory interpretation without deference to [the agency’s] view as to its own authority.”); Higgins, 288 Kan. at 361 (“No significant deference is due [an administrative law judge’s] or the [Workers Compensation] Board’s interpretation or construction of a statute.”). Indeed, when an agency applies the same statute in conflicting ways, as the Board has on this question, any judicial deference is stymied. Cf. Burlington N. & S. F. R. Co. v. White, 548 U.S. 53, 65-66, 165 L. Ed. 2d 345 , 126 S. Ct. 2405 (2006) (Agency views that are shifting or insufficiently developed have little or no persuasive value.).
Furthermore, when appellate courts embark upon statutory interpretation and construction, “the most fundamental rule ... is that the legislature’s intent governs if [it] can be ascertained.” Higgins, 288 Kan. at 361. The first step is to ascertain legislative intent through the language employed, giving ordinary words their ordinary meaning. 288 Kan. at 361-62. When a statute is plain and unambiguous, this court must give effect to the statute’s express language, instead of determining what the law should or should not be. Appellate courts will not speculate about legislative intent or read a statute in a manner that adds something not readily contained within it. 288 Kan. at 362 (quoting Graham, 284 Kan. at 554.)
The statutes require separate awards
As noted above, the Board has employed, and the Court of Appeals has affirmed, different methods for calculating permanent partial disability awards. The Board uses one here, assigning separate awards for each injury to a scheduled member. A Court of Appeals panel recently affirmed this method in Conrow v. Globe Engineering Co., No. 99,718, unpublished opinion filed March 13, 2009. Another method the Board utilized combined multiple injuries to the same extremity to the highest level of injury on that extremity. A different Court of Appeals panel approved this ap proach in Mitchell v. Petsmart, Inc., 41 Kan. App. 2d 523, 203 P.3d 76 (2009), rev. granted 289 Kan. 1279 (2009). We announce a decision in that case this same day and reverse the Mitchell panel’s decision on this point. Mitchell, 291 Kan. 153, 239 P.3d 51 (2010). In Redd’s case, the Mitchell court’s approach would result in two permanent partial disability awardsone for Redd’s left upper extremity and one for Redd’s right upper extremity.
But neither of these two conflicting methodologies used by the Board involves a whole body impairment calculation, which is a third approach and the one advocated by Kansas Truck Center in this appeal. Accordingly, we must determine which method is correct under K.S.A. 44-510d in this case. A review of the governing statutes, the case law interpreting those statutes, the Guides, and the legislative history for K.S.A. 44-510d(a)(23) is required. We will follow those reviews with an analysis to resolve the question.
A. The Statutes
An overview of the Workers Compensation Act places the issue in context. In Casco v. Armour-Swift Eckrich, 283 Kan. 508, 522, 154 P.3d 494 (2007), this court explained:
“The Workers Compensation Act calculates compensation differently depending on the nature of the disability. K.S.A. 44-510c provides compensation for temporary and permanent total disabilities. K.S.A. 44-510d and 44-510e provide compensation for permanent partial disabilities. K.S.A. 44-510d calculates the award based on a schedule of disabilities. If an injury is on the schedule, the amount of compensation in the schedule includes compensation for the complete loss of the member or the partial loss of the member. K.S.A. 44-510d(a) (21). The compensation for a scheduled disability is based on the schedule alone without regard to the claimant’s loss in earning power. [Citation omitted.] K.S.A. 44-510e, on the other hand, calculates the award for any injury not included on the schedule.”
Kansas Truck Center’s challenge solely pertains to the permanent partial disability calculation. Both K.S.A. 44-510d and K.S.A. 44-510e are relevant. The Board’s scheduled injury calculation was made under K.S.A. 44-510d, but Kansas Truck Center’s approach would require compensation as if Redd suffered a general disability under K.S.A. 44-5lOe because whole body impairments are not scheduled injuries.
K.S.A. 44-510d(a) provides in part that permanent partial disability compensation “is to be paid for not to exceed the number of weeks allowed” in the following schedule:
“(11) For the loss of a hand, 150 weeks.
“(12) For the loss of a forearm, 200 weeks.
“(13) For the loss of an arm, excluding tire shoulder joint, shoulder girdle, shoulder girdle, shoulder musculature or any other shoulder structures, 225 weeks.
“(21) ... For the permanent partial loss of use of a . . . hand . .. arm . . . shall be paid as provided for in K.S.A. 44-510c . . . per week during that proportion of the number of weeks in the foregoing schedule provided for the loss of such . . . hand, [arm, or shoulder], which partial loss thereof bears to the total loss of a . . . hand, [arm, or shoulder] . . . ; but in no event shall the compensation payable hereunder for such partial loss exceed the compensation payable under the schedule for the total loss of such . . . hand, arm, [or shoulder] . . ., exclusive of the healing period.
“(23) Loss of a scheduled member shall be based upon the permanent impairment of function to the scheduled member as determined using the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, if the impairment is contained therein.”
K.S.A. 44-510e defines permanent partial general disability as a disability, partial in character and permanent in quality, which the K.S.A. 44-510d schedule does not cover. It then establishes a unique method for calculating general disabilities that considers wage loss. That particular methodology is not relevant to this appeal, but it should be noted that general disabilities tend to result in higher awards. Pruter v. Lamed State Hospital, 271 Kan. 865, 869, 26 P.3d 666 (2001). Kansas Truck Center predicates much of its advocacy for a whole body impairment on the language in K.S.A. 44-510(d)(a)(23), which requires loss of a scheduled member be based upon the permanent impairment of function to the scheduled member “as determined” using the Guides. Accordingly, it is appropriate to next consider those Guides in the applicable context for this case.
B. The Guides
This court has not examined the Guides or the meaning of their adoption in K.S.A. 44-510d(a)(23). According to the foreword, the Guides’ stated purpose is “ ‘to bring greater objectivity to estimating the degree of long-standing or “permanent” impairments.’ ” Guides, p. v. This is accomplished by performing medical evaluations “in accordance with the directions in the Guides.” Guides § 1.2, p. 3.
The first step under the Guides is assessment or evaluation. This requires a documented medical evaluation and review of a patient’s case history. The Guides contain chapters on each organ system, and each chapter contains descriptions on ways to evaluate the body part, function, or system. Guides § 1.2, p. 3. The Guides’ methods for evaluating impairments to the upper extremities are oudined in Chapter 3, relating to the musculoskeletal system. The hand and upper extremity sections cover the thumb, finger, wrist, elbow, and shoulder regions. Guides §§ 3.1a-3.1o, pp. 15-74.
The second step requires combining impairments. The Guides instruct physicians to combine impairments to the same member and then convert that impairment to the next larger unit. For example, multiple injuries to the same thumb are combined. Then, the total thumb impairment is converted to a hand or “regional” impairment. All regional impairments, i.e., hand, wrist, and shoulder, are combined to generate a total impairment to the upper extremity. Ultimately, this upper extremity calculation is converted into a whole body impairment. Guides §§ 3.1e, 3.In, pp. 24, 65. These calculations are performed whether it is a single injury, i.e., impairment to one hand, or multiple injuries, i.e., impairment to the hand and shoulder. Guides § 3.1o, pp. 66-74.
Guides § 3.1e, p. 24, entitied “Combining Impairment Values,” demonstrates how to combine impairments for the same member, i.e., one finger with two impairments, and how to combine multiple regional impairments, i.e., the hand, wrist, and shoulder. It states:
“When there is more than one impairment of a member, such as abnormal motion, sensory loss, and amputation of a finger, the impairments must be combined before the conversion to the next larger unit, in this case the hand, is made.
“The method for combining impairments is based on the idea that a second or a succeeding impairment should apply not to the whole, but only to the part that remains after the first and other impairments have been applied. . . .
“The Combined Values Chart on p. 322 may be used to determine the combined value of two impairment percents or, in succession, any number of impairment percents.
“Multiple regional impairments, as with those of the hand, wrist, elbow, and shoulder, are expressed in terms of impairment of the upper extremity and are combined using the Combined Values Chart. The Chart is used also to combine impairments of two or more organ systems and express these as a whole-person impairment.”
Guides § 3.In, p. 65, entitled “Combining Regional Impairments to Obtain Impairment of the Whole Person,” instructs a physician to combine regional impairments, i.e., hand, wrist, or shoulder, into a whole body impairment. The first step is to covert these impairments into a value for the upper extremity. Then, the Guides § 3.In, p. 65, converts the upper extremity impairment into a whole body impairment, stating: ■
“1. Determine the impairments of each region (hand, wrist, elbow, and shoulder joints) as described in preceding sections.
“2. Use the Combined Values Chart (p. 322) to combine impairments to the upper extremity contributed by each region.
“3. Use Table 3 (p.20) to convert impairment of the upper extremity to impairment of the whole person.”
Guides § 3.1o, pp. 66-74, entitled “Summary of Steps for Evaluating Impairments of the Upper Extremity,” provides instructions for calculating upper extremity awards and combining them into whole body impairments. This summary instructs physicians to convert a singular injury into a regional impairment and then a whole body impairment, even if there are no other injuries. This is demonstrated by the Guides § 3.1o (I. Hand Region), p. 66, pertaining to calculating a hand impairment, which states:
“G. Total hand impairment: add the hand impairment values related to the involved digits.
“H. Convert hand impairment to upper extremity impairment. (Table 2, p.19)
“K. If no other upper extremity impairment exists, convert the upper extremity impairment related to the hand region to a whole-person impairment (Table 3, p. 20).”
These instructions also are included at the bottom of Figure 1, which is titled “Upper Extremity Impairment Evaluation Record.” Guides § 3.1a, p. 16.
As is easily seen from the above description, Kansas Truck Center is correct that the Guides contemplate converting a worker’s injury into a whole body impairment. But that does not resolve the inquiry. We next consider Kansas Truck Center’s claim in light of the consideration given to the Guides by the legislature when it included reference to them in the statutes.
C. Applicable Legislative History
In evaluating Kansas Truck Center’s argument, it is necessary to look more closely at K.S.A. 44-510d(a)(23), which references the Guides. This provision was added to the statute in 1993 and modified in 1996. L. 1993, ch. 286, sec. 33; L. 1996, ch. 79, sec. 23. But the only meaningful change in 1996 was adopting the fourth edition of the Guides instead of the third edition. L. 1996, ch. 79, sec. 23.
The 1993 amendment was part of a massive workers compensation revision effort. This court described the endeavor when it reviewed the changes:
“At the start of the 1993 legislative session, legislators had before them the reports of the Governor’s Task Force on Workers Compensation, the Insurance Commissioner’s Workers Compensation Task Force, and the Legislative Post Audit Committee, all of which suggested areas of the workers compensation system that the various committees determined needed reform. Over the course of the session, the House Committee on Labor and Industry and the Senate Committee on Commerce conducted hearings and heard from witnesses representing employees, employers, trial lawyers, labor organizations, and business associations. S.B. 307, which dealt with safety issues, was used as the vehicle for workers compensation reform. The legislation passed unanimously in both the House and Senate, and Governor Finney signed the bill into law.” Injured Workers of Kansas v. Franklin, 262 Kan. 840, 842, 942 P.2d 591 (1997).
Dr. Phillip L. Baker’s testimony before a legislative committee provides some insight for our present purposes into issues the leg islature considered regarding the Guides. Dr. Baker was asked to give his opinion on “whether physicians could rate and schedule shoulder or girdle problems at that area, as provided in Sec. 23 of SB 215, rather than body of the whole.” (Emphasis added.) Minutes, Sen. Comm, on Commerce, February 10, 1993. Dr. Baker gave this response:
“ ‘[T]he answer is yes, because that is the way we do it anyway. The only reason they are converted to whole body is because the system asks us to do that, and it has been that way as long as I can remember. In fact, it was hard to learn to do that----’ There is now a table in the AMA guidelines for impairment that [converts to a whole body impairment]. You just look up the percent that you have given to the upper extremity for the shoulder and go down the table until you find that number and there is a schedule that does that. . . . But it’s not a medical issue, it’s a book logistic issue that has little relationship to the body and how it functions and what this person may be doing.” Minutes, Sen. Comm, on Commerce, February 10, 1993.
The committee’s question at least impliedly suggests it did not mean for this provision to adopt die Guides’ requirements to convert all injuries into whole body impairments. The doctor’s answer also shows there is not a medical reason for combining the impairments, which means that refusing to adopt Kansas Truck Center’s argument does not affect the impairment ratings’ accuracy.
D. Analysis
As noted above, even though Kansas Truck Center is correct that the Guides require combining impairments into whole body injuries, it still fails to address whether adopting this approach is consistent with the other provisions in the Workers Compensation Act. As Kansas Truck Center conceded at oral argument, if the Guides are followed literally, all impairments would be calculated as whole body injuries and compensated under K.S.A. 44-510e. This interpretation would render the scheduled injury provisions in K.S.A. 44-510d(a)(l)-(22) meaningless because a claimant would never be awarded benefits based on a scheduled injuiy.
This court previously addressed whether certain scheduled injuries can be converted into a whole body impairment given the scheduled injuiy provisions set out in the law. In Casco, the injured worker suffered a repetitive use injuiy to his left shoulder and subsequently injured his right shoulder as a natural consequence of the first injury. The issue on appeal was whether injuries to parallel limbs should be calculated separately as scheduled injuries or combined and calculated as a general body disability under K.S.A. 44-510e.
The Casco court emphasized scheduled injuries were the general rule and general disabilities the exception, holding the awards at issue must be calculated as scheduled injuries in accordance with K.S.A. 44-510d. 283 Kan. at 528. In doing so, this court overruled Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 (1931), which had allowed multiple scheduled injuries to be combined into whole body impairments. 283 Kan. at 527 (citing and discussing Pruter, 271 Kan. at 873-76). Admittedly, Casco did not address the K.S.A. 44-510d(a)(23) reference to the Guides, but Kansas Truck Center s argument that Redd’s award should be converted into a whole body impairment would require us to overrule Casco.
To avoid this problem, Kansas Truck Center attempts to distinguish Casco by arguing its holding only applies to bilateral injuries, not separate injuries to the same extremity as Redd suffered. Rut this ignores the Casco decision’s core, which definitively held that scheduled injuries are the general rule and that the statutory structure comprising the Workers Compensation Act does not permit combining scheduled injuries into a whole body impairment. 283 Kan. at 528-29.
In addition, if the plain reading of a statute yields an ambiguity or a lack of clarity, the rules of statutory construction are used to resolve the ambiguity. This requires moving outside the text of the provision and examining evidence of legislative intent, legislative history, or employing the additional canons of statutory construction to determine the legislature’s meaning. Higgins, 288 Kan. at 362. The legislative history, as discussed above, is consistent with Casco’s aversion to whole body impairment when there is a specific statutory schedule.
Appellate courts also must consider various provisions of an act in pari materia to reconcile and bring the provisions into workable harmony if possible. State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 115 (2008). If they cannot be resolved, a fundamental rule of statutory construction is “[w]hen there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless it appears that the legislature intended to make the general act controlling.” Matjasich v. Kansas Dept. of Human Resources, 271 Kan. 246, 251, 21 P.3d 985 (2001).
Applying the rules of statutory interpretation, the provision referencing the Guides in K.S.A. 44-510d(a)(23) must be read in a way that does not render the statutory schedule in K.S.A. 44-510d extraneous, if possible. See State v. Trautloff, 289 Kan. 793, 797, 217 P.3d 15 (2009) (“As a general rule, courts should read statutes to avoid unreasonable results and should presume that the legislature does not intend to enact useless or meaningless legislation.”). But if the entire instructions contained in the Guides are to be applied to create a whole body impairment for every injury to a worker, as Kansas Truck Center argues they should be, the statute’s scheduled injury sections in K.S.A. 44-510d(a)(l)-(22) become meaningless. Statutory construction rules do not favor this result.
As discussed above, the Guides were designed to increase objectivity and uniformity when estimating impairments. Dr. Baker’s comments suggest the Guides’ conversions into regional and whole body impairments were added simply to help physicians comply with their particular state’s workers compensation requirements when applicable. But since the Kansas Legislature created its own mechanism to calculate permanent partial disability awards in K.S.A. 44-510d and K.S.A. 44-510e, the more reasonable interpretation for K.S.A. 44-510d(a)(23) is that the legislature meant to adopt the evaluation requirements but not the instructions to combine and convert the injuries into whole body impairments. This view maintains the Guides’ purpose of bringing greater objectivity to the physician’s task of estimating the magnitude of permanent impairments, while allowing for the scheduled injury calculations specified in the statute.
This interpretation also is consistent with another statutory interpretation rule that the more specific statute should govern if the statutes cannot be reconciled. In re Roth, 269 Kan. 399, 403, 7 P.3d 241 (2000) (“[W]here a conflict between general and specific statutes exists, the specific statute will prevail unless it appears that the legislature meant to make the general statute controlling.”). The scheduled injuiy provisions in K.S.A. 44-510d(a)(l)-(22) deal specifically with how a permanent partial disability award should be calculated, while the Guides are a general instruction manual developed to help physicians across the nation calculate impairments for claimants without specific reference to a particular state’s statutory scheme for providing benefits to injured workers. K.S.A. 44-510d(a)(23) is the more general provision in the statute. We conclude the Guides should not control over the more specific statutory schedule. We hold this statutory analysis and our rationale in Casco demonstrate Redd’s impairments should not be combined into whole body impairments.
But this conclusion does not end our inquiry. As discussed above, the Board used a different method of calculation in Mitchell. This variation in Mitchell stopped short of combining multiple injuries to single extremities into a whole body impairment. We must determine whether that alternative method is proper before ruling how Redd’s award should be calculated.
The employee in Mitchell also suffered multiple injuries like Redd. The Board determined Mitchell suffered repetitive trauma, developing bilateral carpal tunnel syndrome, right elbow symptoms, and bilateral shoulder injuries. The Board then combined these impairment ratings at the level of each shoulder, resulting in a 24.5 percent impairment to the right upper extremity and a 8 percent impairment to the left upper extremity. Two board members dissented, arguing Mitchell’s injuries needed to be compensated on the schedule at the level corresponding to that injury. The dissenters argued for separate calculations, which was the approach the Board majority used for Redd.
The Mitchell panel interpreted K.S.A. 44-510d to allow compensation at the highest level of the injuiy when multiple injuries occur within a single extremity. First, it distinguished its calculations from those found improper in Casco by noting the Board did not convert Mitchell’s injuries into a whole body impairment thereby requiring compensation under the general disability statute, K.S.A. 44-510e. Then, it noted the statutory structure of the scheduled injuries was progressive, meaning an injured worker is entitled to more weeks if the injury occurs at a higher level, i.e., 200 weeks for a forearm, but 210 weeks for the loss of an arm. The panel quoted Casco, 283 Kan. at 522, stating that “ ‘[i]f an injury is on the schedule, the amount of compensation in the schedule includes compensation for the complete loss of the member or the partial loss of the member.’ ” But the panel then stated that where only a partial loss occurs, the number of weeks is reduced by the percentage of the loss and, thus, “the principle of compensating an extremity at the highest level affected applies regardless of whether the loss is total or partial.” Mitchell, 41 Kan. App. 2d at 537.
Admittedly, this approach does not render the statutory schedule meaningless, but it does read something into the provisions of K.S.A. 44-510d(a)(l)-(22) that does not exist. The schedule does not contain any language requiring the combination of scheduled injuries, and the Mitchell panel did not explain where it found the authority to justify the way in which the Board combined Mitchell’s injuries.
Using the statutory construction analysis recited above, we hold the best way to reconcile K.S.A. 44-510d(a)(23) with the statutory schedule is to use the Guides as a mechanism to evaluate impairment at the level of the injury and not to apply its provisions that call for combining injuries first into regional, and then whole body, impairments. As such, separate awards should be provided at each injury level. The Board majority correctly calculated Redd’s award.
Issue Three: the $50,000 Cap in K.S.A. 44-510f(a)(4)
Finally, Kansas Truck Center argues the $50,000 benefit cap in K.S.A. 44-510f(a)(4) applies because Redd’s permanent partial disability award was for “functional impairment only.” Redd received $47,589.12 for permanent partial disability and $22,464 for temporary total disability. This resulted in a total award of $70,053.12. For the $50,000 cap to apply under these facts, Kansas Truck Center argues the statute limits Redd’s total disability award. Redd, of course, argues the $50,000 cap does not apply in cases where temporary total disability benefits are awarded, citing Roberts v. Mid west Mineral Inc., 41 Kan. App. 2d 603, 204 P.3d 1177 (2009), pet. for rev. filed April 20, 2009 (pending). Applying the cap as Kansas Truck Center advocates would decrease Redd’s award by $20,053.12.
Kansas Truck Center’s argument also presents a question of statutory interpretation subject to unlimited appellate review as did the last issue. And, as noted above, we cannot give deference to the Board’s interpretation on this question because the Board has applied the statute in contradictory ways. See Smothers v. Transervice Logistics, Inc., 2009 WL 1588632, at “4 (Work. Comp. Bd., No. 1,039,301, filed May 29, 2009) (declining to follow Roberts after the Roberts’ petition for review was filed); Martinez v. Cargill Meat Solutions, 2010 WL 2671463, at *6 (Work. Comp. Bd., No. 1,027,952, filed June 25, 2010) (adopting the Roberts approach).
The meaning of K.S.A. 44-510f(a)(4) is an issue of first impression for this court, but two Court of Appeals panels have addressed it. Roberts, 41 Kan. App. 2d at 603, and Rinke v. Rank of America, No. 93,868, unpublished opinion filed March 30,2007. The panels interpreted the statutory language differently, although both decisions resulted in findings that did not apply the $50,000 statutory cap.
First, we review the statute in controversy.
K.S.A. 44-510f(a) sets an employee’s maximum compensation benefits. It states:
“(a) Notwithstanding any provision of the workers compensation act to the contrary, the maximum compensation benefits payable by an employer shall not exceed the following:
“(1) For permanent total disability, including temporary total, temporary partial, permanent partial and temporary partial disability payments paid or due, $125,000 for an injury or any aggravation thereof;
“(2) for temporary total disability, including any prior permanent total, permanent partial or temporary partial disability payments paid or due, $100,000 for an injury or any aggravation thereof;
“(3) subject to tire provisions of subsection (a)(4), for permanent or temporary partial disability, including any prior temporary total, permanent total, temporary partial, or permanent partial disability payments paid or due, $100,000 for an injury or any aggravation thereof; and
“(4) for permanent partial disability, where functional impairment only is awarded, $50,000for an injury or aggravation thereof.” (Emphasis added.)
Functional impairment is considered only in instances in which an injured worker suffers from a partial loss of use of a member, in which case there must be a determination of the percentage of loss of use of the scheduled member. The permanent partial general disability statute defines functional impairment as
“the extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body as established by competent medical evidence and based on the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, if the impairment is contained therein.” K.S.A. 44-510e(a).
In 1993, K.S.A. 44-510f was amended to add subsection (a)(4) as part of workers compensation reform . L. 1993, ch. 286, sec. 35. Additional language was also added to K.S.A. 44-510f(a)(3) that year. Specifically, that the $100,000 cap was “subject to the provisions of subsection (a)(4)”. L. 1993, ch. 286, sec. 35.
A representative from tire Revisor of Statutes testified the workers compensation bill “ '[pjrovides a cap on “white collar” recoveries where there has been no wage loss at one-half the current limit for permanent partial disability.’ ” Minutes, Sen. Comm, on Commerce, February 8, 1993. These minutes do not specifically identify K.S.A. 44-510f(a)(4). But it is reasonable to assume they refer to this provision because it was the only statutory cap included in the 1993 amendments, and it allows one-half of the maximum compensation benefits allotted in K.S.A. 44-510f(a)(2)-(3). See L. 1993, ch. 286, sec. 35.
In Rinke, the claimant was awarded $32,364.71 in temporaiy total disability and $22,411.89 in permanent partial disability. The total for both awards was $54,776.60. The appellants argued K.S.A. 44-510f(a)(4) limited recovery in cases with “functional impairment only” to $50,000 and that this cap applied to the permanent partial and the temporaiy total disability awards. The Board held the language in K.S.A. 44-510f(a)(4) was clear and unambiguous and the $50,000 limit only applied to permanent partial disability awards. It also held the temporary total disability compensation was not included in this $50,000 cap. The Rinke panel affirmed, holding:
“As the Board noted, the $50,000 limit in K.S.A. 44-510f(a)(4) does not specify that it includes prior’ TTD, PTD, TPD, or PPD as do other subsections of the statute. The statute requires only that the $50,000 cap be applied in permanent partial disability cases where functional impairment only is awarded. Here, Rinke was awarded permanent partial and temporaiy total disability. Considering the unambiguous language of K.S.A. 44-510f(a)(4), the Board’s interpretation was not erroneous.” Slip op. at 8.
In Roberts, the claimant also was awarded temporaiy total disability and permanent partial disability. The specific awards were not included in the opinion, but it is clear the total awards exceeded $50,000. The ALJ and Board limited claimant’s total award to $50,000 under K.S.A. 44-510f(a)(4). The panel reversed, finding the $100,000 cap in K.S.A. 44-510f(a)(3) applied. 41 Kan. App. 2d at 611. In doing so, the panel must have found the statutes providing for caps were ambiguous.
The Roberts panel began by recognizing that appellate courts are required to consider provisions of an act in pari materia with the intent to reconcile and harmonize the provisions. It then determined K.S.A. 44-510f(a)(4) applies to both scheduled and nonscheduled permanent partial disabilities. 41 Kan. App. 2d at 611. Stated another way, it recognized there are two categories of permanent partial disability awards, scheduled and general disability, and both categories are based upon functional impairment. Therefore, the clause “for functional impairment only” was not meant to distinguish types of permanent partial disability awards.
The Roberts panel next attempted to reconcile K.S.A. 44-510f(a)(4) with K.S.A. 44-510f(a)(3), which places a $100,000 cap on “permanent or temporaiy partial disability, including any prior temporary total, permanent total, temporary partial, or permanent partial disability payments paid or due.” The court asked: “If the $50,000 compensation cap in K.S.A. 44-510f(a)(4) applies to both scheduled and nonscheduled injuries, then what type of claims are subject to the $100,000 cap in K.S.A. 44-510f(a)(3)?” 41 Kan. App. 2d at 610-11.
The Roberts panel concluded the distinction between these statutes’ application was whether the claimant received any other award. It stated:
“[T]he only reasonable interpretation of the statute is that K.S.A. 44-510f(a)(4) is limited to those few cases in which a claimant does not suffer an injury that causes the claimant to lose at least a week’s time from work, but rather causes a ‘functional impairment only.’ If there is an injury which prevents the claimant from working for at least a week, then the claimant is also entitled to TTD payments under K.S.A. 44-510c(b)(l), in which case the $100,000 compensation cap in K.S.A. 44-510f(a)(3) applies." (Emphasis added.) 41 Kan. App. 2d at 611.
In other words, the Roberts panel determined the term “functional impairment only” means K.S.A. 44-510f(a)(4) is effective when the only award is for permanent partial disability. If the employee also receives a temporary total disability award, the panel concluded, the $50,000 limitation does not apply. 41 Kan. App. 2d at 611.
We find this interpretation consistent with the rules of statutory construction and the limited evidence of legislative history. It also makes clear where the Rinke court over simplified its analysis. When viewing K.S.A. 44-510f(a)(4) in isolation, it is not unreasonable to interpret the phrase “functional impairment only” as meaning that the legislature intended to impose a separate cap on permanent partial disability awards. But this interpretation cannot be reconciled with the other sections of K.S.A. 44-510f, which also apply to permanent partial disability awards. The best interpretation is to construe “functional impairment only” to mean the injured worker received only a permanent partial disability and nothing else. Since Redd was awarded permanent partial disability and temporary total disability, Redd’s award is subject to the $100,000 cap in K.S.A. 44-510f(a)(3), not the $50,000 limitation in K.S.A. 44-510f(a)(4).
Conclusion
We hold substantial competent evidence supported the Board’s factual determinations that Redd’s right upper extremities injuries resulted from the left hand crush injury.
We further hold the Board majority’s separate injury calculation for each extremity was correct. Kansas Truck Center’s argument that the scheduled injuries should have been combined into a whole body impairment is rejected as being inconsistent with the Workers Compensation Act. We also reject the calculation meth odology approved by the Court of Appeals panel in Mitchell, as discussed above and in our decision released this same date in that case.
Finally, we reject Kansas Truck Center’s argument that Redd’s award was subject to the $50,000 liability cap set out in K.S.A. 44-510f(a)(4); rather, it was subject to the $100,000 cap in K.S.A. 44-510f(a)(3).
Affirmed. | [
-112,
-22,
-35,
-100,
28,
99,
58,
58,
105,
-59,
-25,
83,
-89,
-49,
-99,
123,
-26,
29,
-47,
91,
118,
-77,
83,
-55,
-58,
-73,
-13,
-57,
-69,
90,
36,
84,
76,
48,
10,
85,
102,
-64,
69,
20,
-120,
4,
-85,
-23,
89,
-127,
56,
110,
-60,
3,
49,
-113,
123,
32,
24,
-61,
40,
44,
91,
-84,
81,
-79,
-53,
5,
111,
16,
-93,
4,
-100,
47,
-40,
63,
-104,
-72,
1,
-24,
83,
-74,
-62,
-76,
105,
-103,
12,
103,
98,
32,
21,
-123,
-20,
-72,
15,
82,
-113,
7,
-110,
24,
107,
3,
-108,
-104,
126,
22,
14,
124,
-14,
76,
31,
109,
-113,
-122,
-110,
-111,
-49,
101,
30,
-21,
-17,
-121,
-110,
97,
-52,
-30,
92,
21,
90,
31,
-105,
-106
] |
The opinion of the court was delivered by
Nuss, J.:
This case arises out of the sale of a home which was later discovered to have structural flaws. Jason Osterhaus, a first-time home buyer, brought an action against the seller (Jean Betty Toth), Toth’s real estate agent (Jeffrey Schunk), and Schunk’s company (TopPros Real Estate, Inc.). Osterhaus alleged deceptive and unconscionable acts under the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., fraud, fraud by silence, negligent misrepresentation, and breach of contract. The district court granted summary judgment to defendants on all claims. The Court of Appeals majority reversed. Toth’s and Schunk’s separate petitions for review were granted by this court; our jurisdiction is under K.S.A. 20-3018(b).
The parties’ issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court err in granting summary judgment for defendants based upon McLellan v. Raines, 36 Kan. App. 2d 1, 140 P.3d 1034 (2006), and Osterhaus’ signature on the buyer acknowledgment and agreement? Yes.
2. Did the “as is” and release provisions in the form amendment bar Osterhaus’ claim for breach of contract? Remand for factual findings.
3. Were Osterhaus’ claims for fraud and negligent misrepresentation barred by the 2-year limitations period in K.S.A. 60-513(a)(3)? Remand for factual findings.
4. Were Osterhaus’ claims against Toth for violation of the KCPA barred because Toth was not a “supplier” under the provisions of the Act? Remand for factual findings.
5. Did the district court err in granting summary judgment on the fraudulent misrepresentation claim under the Rrokerage Relationships in Real Estate Transactions Act? Remand for factual findings.
6. Did the district court err in failing to rule on Osterhaus’ motion for leave to amend his petition? Remand for factual findings.
7. Were Osterhaus’ claims based on fraud barred because they are identical to those he made for breach of contract? Remand for factual findings.
8. Did the Court of Appeals err in failing to sustain the district court’s grant of summaiy judgment to TopPros because it did not exist until 20 months after the contract between Osterhaus and Toth closed? Abandoned.
9. Did the Court of Appeals err in failing to dismiss the breach of contract claim against Schunk on the grounds that he was not a party to the contract? Abandoned.
Accordingly, we affirm the Court of Appeals panel and remand to the district court for further proceedings.
Factual and Procedural Background
Mark and Cathy Ross sold their Overland Park home to Jean Toth in the spring of 2001. Prior to the sale, the Rosses completed a “Seller’s Disclosure” statement which indicated they had experienced cracks in the foundation, wall movement, and water in the basement. In March 2001, Mark showed the house to Toth. He discussed with her cracks in the basement walls, movement of the foundation walls, and repairs the Rosses made. Toth was “very concerned” about water leakage and said she would have the property inspected.
A few days later Toth had the home inspected. The inspection revealed hairline cracks in the foundation walls. But Toth proceeded with the purchase, and the sale closed in May 2001. After Toth’s purchase, she called the Rosses on several occasions to ask questions about the property or to seek their assistance. In September 2001, after a heavy rain, Toth called the Rosses and complained of water in her basement. She told Mark that she had hired a foundation inspector who determined that the “sheetrock on the interior wall near the west foundation wall of the house had buckled because the west foundation had shifted inward.” Toth showed Mark the buckled sheetrock wall and asked him how to fix the water problem. At Mark’s suggestion, Toth purchased fill dirt which Mark placed around the foundation exterior.
Toth put the house on the market the following spring. That July, she signed an exclusive listing contract with “TopPros Real Estate — Broker Jeff Schunk.” Schunk had Toth complete a form captioned “Seller’s Disclosure-Statement of Condition” (disclosure statement). It stated in paragraph 2, under “Seller’s Instructions”:
“SELLER agrees to disclose to BUYER all material defects, conditions and facts knoum to SELLER which may materially affect the value of the property. This disclosure statement is designed to assist SELLER in making these disclosures. The listing broker, the selling broker and their respective agents will rely on this information when they evaluate, market and present the Seller’s property to prospective Buyers.” (Emphasis added.)
Despite Toth’s experience during the past year with the house’s foundation walls, cracks and movement, and basement water, and her knowledge of the Rosses’ similar experience before that, in paragraph 8 Toth answered “No” to the following questions regarding the “Structural, Basement and Crawl Space Items”:
“Are you aware of:
“(a) Any movement, shifting, deterioration, or other problems with walk, foundations, crawl space or slab?
“(b) Any cracks or flaws in the walls, ceilings, foundations, concrete slab, crawl space, basement floor or garage?
“(c) Any water leakage or dampness in the house crawl space or basement?
“(h) Any repairs or other attempts to control the cause or effect of any problem described above?” (Emphasis added.)
The disclosure statement then provided that “[i]f any of the answers in this section are ‘Yes’, explain in detail. When describing repairs or control efforts, describe the location, extent, date, and name of the person who did the repair or control effort and attach any inspection reports, estimates or receipts.” Despite Mark’s fill dirt control efforts, they were not described. Nor was a copy attached of a report of Toth’s foundation inspector regarding the sheetrock buckling or movement of the foundation’s west wall. A handwritten notation did provide, however, that “north garage wall moved 1", it has been repaired.”
In response to paragraph 15 of the disclosure statement, captioned “Other Matters,” Toth denied awareness of things such as fire damage and landfill/underground problems. She then answered “no” to the question asking, “Are you aware of any other conditions that may materially and adversely affect the value or desirability of the property?” (Emphasis added.)
Also on that disclosure statement, in response to paragraph 16 Toth represented that the house had an attic fan, a central vac and attachments, and a convection oven. None of these were, or ever had been, present in the home. At the end of the seller’s section of the disclosure statement, Toth represented that her information was not only accurate and complete but also that she would notify the listing agent if any information stated there changed prior to closing:
“The undersigned Seller represents that the information set forth in the foregoing Disclosure Statement is accurate and complete. Seller does not intend this Disclosure Statement to be a warranty or guarantee of any land. Seller hereby authorizes their agent to provide this information to prospective Buyers of the property and to real estate brokers and salespeople. Seller will prompdy notify listing agent, in writing, if any information set forth in this disclosure changes prior to closing.” (Emphasis added.)
The document concluded by stating: “THIS DISCLOSURE STATEMENT IS AN INTEGRAL PART OF THE AGREEMENT BETWEEN SELLER AND BUYER. IF NOT UNDERSTOOD CONSULT AN ATTORNEY BEFORE SIGNING.”
Toth then signed and dated it on July 12, 2002.
Toth’s agent, Schunk, walked through the house but did not perform an in-depth inspection. He testified in his deposition that he did not go over the disclosure statement with Toth and did not ask her any questions regarding the truth of her representations.
David Tomlinson made an offer to buy Toth’s house 6 days later on July 18,2002. Shortly thereafter he had the property inspected. While the inspector and Tomlinson were in the basement, Tomlinson noticed a large crack in the back of a piece of sheetrock. He stated that they were able to see the back of the sheetrock in the adjoining room because they were in an unfinished room. The inspector explained to Tomlinson that the sheetrock crack was caused by movement of a foundation wall. Because of structural problems, Tomlinson canceled the contract 6 days after his offer to purchase. Two days later Schunk met with his seller, Toth, and she signed the cancellation release agreement.
After Schunk received the notice of the contract cancellation and a copy of Tomlinson’s inspection report, he went to Toth’s home to look at the basement’s west wall. He then recommended that Toth contact Glenn Marsee & Son Foundation Repair, Inc. (Mar-see) to repair the crack in the foundation. On July 31,2002, Marsee put epoxy in “eighteen feet of cracks” in the west foundation wall.
Two days after Tomlinson canceled his contract and 5 days before Marsee’s repairs, Osterhaus’ real estate agent, Ronda Lend, expressed interest in Toth’s house. Schunk testified in his deposition that he provided Lenci with a copy of Tomlinsons inspection report and explained that the contract had been terminated due to issues with the foundation, which were going to be repaired. Lenci testified in her deposition, however, that she did not recall Schunk ever telling her about Tomlinson’s inspection report, Tomlinson’s contract cancellation, or the foundation problems in the basement.
Osterhaus made an offer to purchase and on July 26, 2002, shortly before Marsee’s epoxy repairs, he signed the “Buyer Acknowledgment and Agreement” section of Toth’s seller’s disclosure statement. That buyer’s acknowledgment appears at the bottom of page 3 and states in its entirety:
“1. I understand and agree that the information in this form is limited to information of which SELLER has actual knowledge and that SELLER need only make an earnest effort at fully revealing the information requested.
“2. This property is being sold to me without warranties or guaranties of any kind by SELLER or BROKER(S) or agents concerning the condition or value of the Property.
“3. I agree to verify any of the above information, and any other important information provided by SELLER or BROKER (including any information obtained through the multiple listing service) by an independent investigation of my own. I have been specifically advised to have the property examined by professional inspectors.
“4. I acknowledge that neither SELLER nor BROKER is an expert at detecting or repairing physical defects in the property.” (Emphasis added.)
Of most importance to the analysis of the instant case is paragraph 5, which states:
“5. I specifically represent that there are no important representations concerning the condition or value of the property made by SELLER or BROKER on which I am relying except as may be fully set forth in writing and signed by them.”
Toth counteroffered on July 27. She also corrected her earlier representation to now indicate that there was no attic fan, central vac and attachments, or convection oven on the property. However, again, despite Toth’s experience with the house the past year, and her knowledge of the Rosses’ experience before that, she did not amend her disclosure statement to inform Osterhaus that she had experienced cracks in the basement, movement in a foundation wall, and water in her basement.
Osterhaus hired an inspector, Brian Rawlings, and attended part of the inspection. Osterhaus testified in his deposition that Raw-lings was in the house for approximately 3 or 4 hours. He also testified that on his previous tours of the home, he did not notice any cracks in the basement walls because shelves and appliances were in front of the cracked sheetrock. However, at the time of the inspection on August 3, 2002, while Osterhaus did not see any open cracks, he did notice “a continuous line of epoxy filling covering what appeared to be a prior crack in the west wall.” Rawlings’ inspection report reflects these observations, noting: “Basement is partially finished, viewing was restricted by wall, ceiling and floor coverings in area, Basement is only partially accessible due to storage in areas.” And the comment section in Rawlings’ report concerning the basement walls provides: “Poured concrete, Major cracking is noted. Repairs have been made. Appears serviceable.” Osterhaus received this inspection report before proceeding to close on the property.
After negotiations which included both an Addendum and Counteroffer Addendum, on August 10 and 14, 2002, Osterhaus and Toth signed a final Amendment (Resolution of Unacceptable Conditions) to the contract. Per these documents, Toth agreed to pay $900 in closing costs in lieu of correcting the Usted unacceptable conditions: fix the specified wiring issue, have the chimney professionally cleaned, and blow additional fiberglass or cellulose insulation to the specified rating. In August 2002, Osterhaus took possession.
In spring 2004, Osterhaus noticed some water seeping into the carpet in a finished portion of the basement. He eventually discovered that water was coming down the foundation wall behind the sheetrock. By that summer, he experienced water leakage when it rained, which resulted in “substantial amounts of mold” behind the walls. Osterhaus estimated that it would cost more than $80,000 to fully repair his home.
Later that summer, Osterhaus sued Toth, Schunk, and TopPros. Count I alleged deceptive and unconscionable acts in violation of the KCPA. Count II alleged fraud, i.e., intentional misrepresentation, claiming that Toth and Schunk intended to defraud Osterhaus by concealing the water problems in the basement. Count III alleged fraud by silence, claiming Toth and Schunk knew or should have known there was wall movement, problems with the foundation walls, and water problems in the basement. Count IV claimed negligent misrepresentation against Schunk and his agency, TopPros, which was separate from the intentional misrepresentation claim (Count II), because they “failed to exercise reasonable care or competence to obtain or communicate true information” as required by the Brokerage Relationships in Real Estate Transactions Act (BRRETA), K.S.A. 58-30,101 et seq. Finally, Count V alleged breach of contract, claiming that Toth, Schunk, and TopPros all failed “to provide truthful, accurate, and complete information to Osterhaus in Toth’s Seller’s Disclosure.”
All three defendants filed summary judgment motions and argued Osterhaus’ claims were resolved by McLellan v. Raines, 36 Kan. App. 2d 1, 140 P.3d 1034 (2006). McLellan essentially held that by signing and agreeing to the buyers’ section of the seller’s disclosure statement, the buyer waives the right to rely upon the seller’s representations in the disclosure statement and the accompanying right to later complain of house defects.
After hearing arguments, the district court concluded that McLellan controlled and granted summary judgment to defendants on all claims. The district court also noted that Osterhaus had an independent inspection performed, which revealed “major cracking” in the basement wall. Osterhaus appealed, maintaining that McLellan should be overturned because it destroyed the intended purpose of the seller’s disclosure statement.
A panel of the Court of Appeals reversed and remanded in Osterhaus v. Toth, 39 Kan. App. 2d 999, 187 P.3d 126 (2008). The panel departed from the holding and rationale of McLellan and two very similar cases that followed: Katzenmeier v. Oppenlander, 39 Kan. App. 2d 259, 178 P.3d 66 (2008), and Brennan v. Kunzle, 37 Kan. App. 2d 365, 154 P.3d 1094, rev. denied, 284 Kan. 945 (2007). Judge Leben dissented in part from the majority opinion, explaining that while he believed McLellan, Katzenmeier, and Brennan were all wrongly decided, he would reserve changing the law for this court. 39 Kan. App. 2d at 1015-16 (Leben, J., dissenting in part).
More facts will be added as necessary to the analysis.
Analysis
Standard of Review
This court’s standard for reviewing a district court’s grant of summary judgment is well-known:
“ ‘ “ ‘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 that reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ ” ’ ” (Emphasis added.) Warner v. Stover, 283 Kan. 453, 455-56, 153 P.3d 1245 (2007).
Additionally, for this court to determine whether the district court erred, it must interpret the sales contract. The legal effect of a written instrument is a question of law. It may be construed and its legal effect determined by the appellate court regardless of the construction made by the district court. Foundation Property Investments v. CTP, 286 Kan. 597, Syl. ¶ 2, 186 P.3d 766 (2008). The primary rule for interpreting written contracts is to ascertain the parties’ intent. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction. Anderson v. Dillard’s, Inc., 283 Kan. 432, 436, 153 P.3d 550 (2007); see National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, Syl. ¶ 6,225 P.3d 707 (2010).
Issue 1: The district court erred in granting summary judgment for defendants based upon McLellan v. Raines, and Osterhaus’ signature on the buyer’s acknowledgment and agreement.
In granting defendants’ motions for summary judgment, the district court ruled that under McLellan, Osterhaus’ signing and agreeing to the buyer’s acknowledgment effectively waived his right to rely upon Toth’s representations in the seller’s disclosure statement:
“As set out above, [paragraph 5 of] the buyer’s acknowledgment states: 7 specifically represent that there are no important representations concerning the condition or value of the property made by SELLER or BROKER on which I am relying except as may be fully set forth in writing and signed by them.’ Osterhaus did not list representations upon which he was relying. In signing and agreeing to this particular clause, Osterhaus waived his right to rely upon Toth’s representations in the disclosure statement. See McClellan v. Raines, 140 P.3d at 1038 (‘The unambiguous language of paragraph 5 clearly directs McLellan to either indicate which representations she was relying on or agree to rely on none of them. She did not so indicate and thus waived her right to rely on . . . the disclosure statement.’).”
Without citation, the district court also held that “Osterhaus released Toth from any obligation to disclose adverse information on the disclosure statement.” (Emphasis added.)
The court basically reasoned that due to Osterhaus’ waiver of his right to rely upon any representations, then obviously he could not prove reliance. Rebanee was an essential element of each of Osterhaus’ claims — fraud, fraud by silence, negligent misrepresentation, violation of the KCPA, and breach of contract (because Osterhaus allegedly agreed not to rely upon the representations, “Toth’s false statements did not constitute a breach of the contract”). Consequently, summary judgment was granted. See U.S.D. No. 232 v. CWD Investments, 288 Kan. 536, 555, 205 P.3d 1245 (2009) (a defendant is entitled to summary judgment if the defendant can estabbsh the absence of evidence necessary to support an essential element of the plaintiff s case); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
Osterhaus now argues that McLellan was wrongly decided as a matter of law, and therefore the subsequent Court of Appeals opinions that paid homage to it were also wrong. Accordingly, the buyers did not waive their right to rely upon seller representations about their houses. Toth, Schunk, and TopPros respond that McLennan was correctly decided. Before we can address the Court of Appeals analysis in McLellan, however, we must review an earlier decision from this court.
Alires v. McGehee
In Alires v. McGehee, 277 Kan. 398, 85 P.3d 1191 (2004), the Alireses purchased a home from the McGehees. After the basement leaked, they successfully sued for fraudulent misrepresentation. The Alireses claimed the McGehees had fraudulently misrepresented the condition of the house when they orally represented that the basement did not leak. On the seller s disclosure statement, Mrs. McGehee answered “Yes,” to the question, “Has there ever been leaking or seepage in the basement or crawl space?” But she wrote in the explanatory space, “Repaired broken pipe.” 277 Kan. at 399-400. At trial, Mrs. McGehee testified about two other instances of basement water leakage which she had not disclosed in the statement, attributing the failure to faulty memory due to recent brain tumor surgery.
The top of the Alires seller s property disclosure form read: “ THIS STATEMENT ... IS NOT A WARRANTY OF ANY KIND BY THE SELLER(S) OR ANY REAL ESTATE LICENSEE IN THIS TRANSACTION, AND SHOULD NOT BE ACCEPTED AS A SUBSTITUTE FOR ANY INSPECTIONS OR WARRANTIES THE BUYER MAY WISH TO OBTAIN.’ ” (Emphasis added.) 277 Kan. at 407. Similarly, Toth’s disclosure statement provides at paragraph 3: “This is . . . not a substitute for any inspections or warranties that BUYER may wish to obtain. It is not a warranty of any kind by SELLER or a warranty or representation by the BROKER(S) or their agents.” Likewise, Osterhaus’ acknowledgment states in paragraph 2: “This property is being sold to me without warranties or guarantees of any kind by SELLER or BROKER^) or agents concerning the condition or value of the Property.”
Paragraph 3 in the Alires buyer’s acknowledgment stated: “ 1 [buyer] agree to verify any of the above information that is important to me by an independent investigation of my own. I have been advised to have the property examined by professional inspectors.’ ” 277 Kan. at 407. Similarly, Osterhaus acknowledged in paragraph 3 that “I agree to verify any of the above information, and any other important information provided by SELLER or BROKER (including any information obtained through the multiple listing service) by an independent investigation of my own. I have been specifically advised to have the property examined by professional inspectors.”
Another Alires paragraph further advised about the use of buyer inspections. It contained an express buyer waiver of all claims arising from any property condition that would have been apparent from inspections had they been performed. It read in relevant part:
“ ‘Buyer and Seller agree that the real estate licensees involved in this transaction are not experts regarding whether any environmental or health hazards, defects in the mechanical equipment or systems, structural defects, or damage from wood destroying insects exists in and on the property. Buyer and seller should seek expert advice and obtain inspections to determine if hazards, defects or damage exist in and on the property. If inspections are not performed regarding all or part of the property, Buyer is bound by whatever information an inspection would have revealed, and waives any claim, right or cause of action relating to or arising from any condition of the property that would have been apparent had inspections been performed. Unless otherwise provided in paragraphs relating to specific inspections, Buyer accepts the property in its current condition. This shall not be deemed a waiver or modification of any implied warranties which may exist.’ ” (Emphasis added.) 277 Kan. at 407.
In a contract addendum, the Alireses expressly agreed to waive their contractual right of inspection, which in turn waived their right to complain of property defects that would have been apparent during such inspections. While Mr. Alires testified at trial that he did not have the foundation inspected because he trusted Mrs. McGehee’s representation that the basement did not leak, he agreed that if an inspection had been done, a determination about the condition of the basement could have been made before closing. 277 Kan. at 401.
We initially examined the seller’s argument — adopted by the Ali-res Court of Appeals — that the Alireses were not justified as buyers in relying on the alleged misrepresentations because the seller’s disclosure statement contained a paragraph specifically allowing the Alireses to note any important representations being relied upon, and they wrote nothing there. That section of the buyer s acknowledgment provided:
“ ‘4. I acknowledge that neither Seller nor any real estate licensee involved in this transaction is an expert at detecting or repairing physical defects in the property. I state that no important representations concerning the condition of the property are being relied upon by me except as disclosed above or as fully set forth as follows:__’ ” (Emphasis added.) 277 Kan. at 406-07.
After noting that justifiable reliance is an element of fraud, we rejected the sellers’ argument that buyers’ reliance was barred purely because of the language of the acknowledgment. We observed that the sellers’ disclosure statement was integrated into the contract. We also observed that one of the alleged misrepresentations, i.e., that the basement had leaked only when broken pipes needed repairing, was “disclosed above” in the disclosure form. Because the write-in section was for representations not mentioned in the “above” section of the contract, we concluded: “There was no need for the Alireses to write in the representation on which they were relying because Mrs. McGehee’s representation that the basement had leaked only when broken pipes needed repairing was already listed.” 277 Kan. at 404.
Having disposed of this contractual interpretation argument of sellers the McGehees, we then turned to whether the Alireses were actually justified in their reliance upon the McGehees’ statements. More specifically, we examined whether the Alireses’ agreement to buy the house “as is” and their written waiver of their contractual right of inspection (which, per the contract, also would waive their right to claim property defects apparent during such inspections) abrogated their claim of fraud. After first noting that whether fraud exists is a question of fact, we affirmed the trial court’s findings that Mrs. McGehee indeed made untrue statements of fact and knew they were untrue. 277 Kan. at 403-06.
We next examined the specific contract paragraphs concerning inspections and waivers. The McGehees argued the contractual limitations on their liability should be applied to bar the Alireses’ cause of action for fraudulent misrepresentation. The Alireses responded that the court should ignore the contract’s attempted lim Rations on the McGehees’ liability because the contract had been fraudulently induced.
We first discussed at length the McGehees’ cited cases: Hamtil v. J.C. Nichols Real Estate, 22 Kan. App. 2d 809, 923 P.2d 513 (1996), and Boegel v. Colorado Nat’l Bank of Denver, 18 Kan. App. 2d 546, 857 P.2d 1362, rev. denied 253 Kan. 856 (1993). Hamtil involved a buyer’s written acknowledgment that was virtually identical to the one in Alires. We distinguished Hamtil for several reasons, however, holding it was of little support to the McGehees. Among other things, we noted the HamtÜ claims were against the realtors, not the sellers. But more critically, we also observed that the buyers in Hamtil simply alleged negligence and negligent misrepresentation, while the buyers in Alires alleged fraud. The Ham-til court had held that contracts not illegal or contrary to public policy will be upheld absent fraud, mistake, or duress. Alires, 277 Kan. at 409.
Boegel, however, was of support to the McGehees. There, the plaintiff buyer argued that the defendant seller failed to disclose its knowledge about poorly performing irrigation wells on the farm it sold to plaintiff. More particularly, the buyer contended the seller knew that the buyer was mistaken and relying upon the seller’s representations. After the buyer appealed the jury verdict denying his claim for fraudulent concealment, the Court of Appeals affirmed. It held that because of a written waiver provision stating that the buyer was relying upon his own inspection and not upon any express or implied warranty or representation made by the seller, and that the farm was being sold “as is where is,” the contract prevented the buyer from relying on the seller’s representations. In short, the buyer contractually assumed a duty to inspect the property, and he did not do so. 277 Kan. at 409-10 (citing Boegel, 18 Kan. App. 2d at 552). The Boegel panel held the seller had bargained for limited liability, noting the buyer’s “claim of fraudulent concealment seems to nullify the limited liability for which the Bank bargained.” 227 Kan. at 410 (citing Boegel, 18 Kan. App. 2d at 554).
Like the holding in Boegel, we held in Alires that the Alireses contractually assumed the duty to inspect (“ 1 agree to verify any of the above information that is important to me by an independent investigation of my own.’ ” 277 Kan. at 407.) and then failed to conduct an inspection. In addition to Boegel’s similar holdings, we also held the Alireses contractually agreed that if they failed to have inspections performed, they waived “ ‘any claim, right or cause of action relating to or arising from any condition of the property that would have been apparent had inspections been performed.’ ” 277 Kan. at 410. As a result, in order to prove their case, the Alireses needed to provide evidence that, even if an inspection had been performed, the defects in the foundation would not have been apparent. This they failed to do. We also observed that Boegel included not only a fraudulent concealment claim but also, like the Alireses’ contention, an affirmative misrepresentation.
Nevertheless, in an argument related to the one analyzed immediately above, the Alireses finally argued that the contractual term providing for waiver of defect claims because of their failure to inspect should not be enforced because it was induced by Mrs. McGehee’s fraudulent misrepresentations. This argument required our determination of die reasonableness of die Alireses’ reliance on those misrepresentations, as justifiable rebanee is an element of fraud. This led us to look at two cases: Munkres v. McCaskill, 64 Kan. 516, 68 P. 42 (1902), and Fox v. Wilson, 211 Kan. 563, Syl. ¶ 9, 507 P.2d 252 (1973).
We first examined the “similar factual situation” in Munkres. Alires, 277 Kan. at 411. There, the parties entered into an agreement to exchange land subject to a stipulation that “the contract should not be binding until each party had investigated the property of the other and each assumed the responsibibty to make a full, fair, and complete examination of the property to be satisfied as to the truth or falsity of the representations made by the other.” 277 Kan. at 411 (citing Munkres, 64 Kan. 516, Syl. ¶ 1). We held that once a party made the examination, signified satisfaction, and closed the property trade by exchanging title papers, that party could not rescind the contract on the ground that it was induced to make the contract in rebanee on the false representations by the other unless the other party fraudulently prevented the making of a full, fair, and complete examination of the property. Munkres, 64 Kan. 516, Syl. ¶ 1.
By contrast, when we examined Fox, we found no such agreement to investigate. We had concluded in Fox that where a contract is induced by a false representation of fact, it is not a defense that the buyer could have discovered the falsity of the representation if due diligence had been exercised. Mires, 277 Kan. at 411 (citing Fox, 211 Kan. 563, Syl. ¶ 9). However, we held the critical difference between the two cases’ outcomes was the agreement in Munkres to undertake an investigation: “the fact there was an undertaking to investigate relates to both the issues of whether the representation was material and of whether the recipient of the information reasonably relied upon the representation. See Restatement (Second) of Contract § 167, comment b; Restatement (Second) of Contract § 172, comment b.” (Emphasis added.) Mires, 277 Kan. at 411.
In Mires, we concluded our opinion by expressing our rationale and holding against the buyer Alireses as follows:
“Under the facts of this case, the buyer of real estate could not reasonably rely upon representations of the seller when the truth or falsity of the representation would have been revealed by an inspection of the subject property and the misrepresentations were made prior to or as part of the contract in which the buyer contracted for the right to inspect, agreed that the statements of the seller were not warranties and should not replace the right of inspection, declined inspection, and waived any claims arising from defects which would have been revealed by an inspection. There is no showing in the record that the subsequent contract addendum which contained the waiver of the right to inspect was induced by any additional misrepresentations of the seller. Thus,... the Alireses were not justified in their reliance upon the misrepresentations of Mrs. McGehee.” (Emphasis added.) 277 Kan. at 411-12.
In short, as a matter of law, a buyer may not reasonably rely on the admittedly false representations of the seller when (1) the truth or falsity of a representation would be revealed by an inspection and (2)(a) the misrepresentations were made prior to or as part of a contract (b) in which the buyer contracted for the right to inspect the property, (c) the buyer agreed that statements of the seller were not warranties and did not replace the right of inspection, (d) the buyer declined to inspect the property, and (e) the buyer contrac tually waived any claims arising from the defects which would have been revealed in the inspection.
But a contractual waiver does not necessarily bar claims such as fraudulent misrepresentation and breach of contract as a matter of law where a buyer’s reasonable inspection prior to purchase did not reveal a seller’s false representation and later defects are discovered.
McLellan v. Raines
Two years after Alires, the Court of Appeals issued its opinion McLellan v. Raines, 36 Kan. App. 2d 1, 140 P.3d 1034 (2006), which the district court in the present case held concerned “uniquely similar facts.” The McLellan sellers represented in a disclosure statement that they were not aware of water leakage or dampness in the basement, a representation the buyer, McLellan, alleged was “admittedly false.” 36 Kan. App. 2d at 14. McLellan relied upon the disclosure statement. She then had an inspection done which found no evidence of damage to the unfinished basement or foundation walls and no evidence of water entry or water damage to the property.
Shortly after moving in, McLellan experienced water leakage in the basement. She brought an action against the sellers, claiming breach of contract, negligent misrepresentation, fraud by omission, and claims under the KCPA. The McLellan panel reviewed the contract’s Buyer Acknowledgment and Agreement, paragraph 5, which is identical to the one acknowledged by Osterhaus:
“I specifically represent that there are no important representations concerning the condition or value of the property made by SELLER or BROKER on which I am relying except as may be fully set forth in writing and signed by them.” 36 Kan. App. 2d at 4.
The panel upheld the district court’s grant of summary judgment to the sellers on all of buyer’s claims. Its rejection of all of buyer’s theories was primarily based upon its reading of paragraph 5, which it interpreted as requiring a writing — separate from the sellers’ disclosure statement — that set forth the sellers’ representations upon which McLellan relied. It declared: “The unambiguous language of paragraph 5 clearly directs McLellan to either indicate which representations she is relying on or agree to rely on none of them. She did not so indicate and thus waived her right to rely on the Raines’ representations in the disclosure statement.” (Emphasis added.) 36 Kan. App. 2d at 8.
We disagree with the panel’s holding requiring a separate document containing the sellers’ representations relied upon by the buyer because a “writing . . . signed by them” in paragraph 5 does not specify a separate writing by the parties. Rather, it simply indicates that the one who made tbe representation must have signed the writing. As Judge Leben pointed out when discussing the same form language in his concurring opinion in Katzenmeier v. Oppenlander, 39 Kan. App. 2d 259, 270, 178 P.3d 66 (2008):
“[T]he seller has already satisfied both parts of the phrase actually used because the seller has [1] set forth in writing and [2] signed the disclosures, all contained in the very same document. To suggest that yet another document was needed for the buyer to be able to rely upon what the seller has already put in writing and signed renders the disclosure statement without any legal effect.”
Cf. Johnson County Bank v. Ross, 28 Kan. App. 2d 8, 10-11, 13 P.3d 351 (2000) (The law favors reasonable interpretations of contracts, and results which vitiate the purpose of the terms of the agreement to an absurdity should be avoided.).
The McLellan panel’s interpretation of paragraph 5 drove its analysis of each of McLellan’s claims. For example, the panel concluded that McLellan could not prove a breach of contract because she waived her right to rely on any representation by failing to set them out in a writing separate from the disclosure statement. It additionally concluded that McLellan’s waiver also covered information the sellers had not even placed in the disclosure statement:
“Because McLellan released the Raines from any obligation to disclose adverse information on the disclosure statement and agreed not to rely on their statements therein, any false statement did not constitute a breach of contract.” (Emphasis added.) 36 Kan. App. 2d at 8.
Because the panel concluded there had been no breach of contract, it reasoned that any damages McLellan suffered could not have been the proximate result of contract breach.
The McLellan panel’s interpretation of paragraph 5 of the buyer’s acknowledgement not only “renders the disclosure statement without any legal effect,” but it is also at odds with key provisions in that statement. For example, paragraph 2 provides: “SELLER agrees to disclose to BUYER all material defects, conditions and facts known to SELLER which may materially affect the value of the property. This disclosure statement is designed to assist SELLER in making these disclosures.” Moreover, paragraph 15(b) asks the seller, “Are you aware of any other conditions that may materially and adversely affect the value or desirability of the property?” Additionally, the unnumbered paragraph immediately above the seller’s signature line states: “The undersigned Seller represents that the information set forth in the foregoing Disclosure Statement is accurate and complete. . . . Seller hereby authorizes their agent to provide this information to prospective Buyers of the property .... Seller will promptly notify listing agent, in writing, if any information set forth in this disclosure changes prior to closing.” (Emphasis added.)
In turn, the buyer acknowledges in paragraph 1 of the Acknowledgment: “I understand and agree that the information in this form is limited to information of which SELLER has actual knowledge and that SELLER need only make an earnest effort at jfully revealing the information requested.” (Emphasis added.) And, as mentioned, the disclosure statement expressly states that it “IS AN INTEGRAL PART OF THE AGREEMENT BETWEEN SELLER AND BUYER.” A cardinal rule of contract construction requires the court to construe all these provisions together and in harmony rather than in isolation. Decatur County Feed Yard, Inc. v. Fahey, 266 Kan. 999, 1005, 974 P.2d 569 (1999).
The McLellan panel’s interpretation of paragraph 5 of the buyer’s acknowledgment as requiring a separate writing setting forth the seller’s representations upon which buyer relied also appears inconsistent with several provisions of the Residential Sales Contract between seller and buyer. For example, its paragraph 5, Condition of Property, provides in relevant part: “THIS CONTRACT SHALL NOT BE EFFECTIVE UNTIL SELLER COMPLETES AND BUYER SIGNS A SELLER’S DISCLOSURE- STATEMENT OF CONDITION FOR THE PROPERTY.” On a similar note, Paragraph 6 expressly states, “The following Addenda . . . are attached hereto and are a part of this Contract: . . . seller’s disclosure.”
Under the McClellan panel’s interpretation, in the absence of a separate writing the buyer’s signed acknowledgment essentially metamorphoses into a terminator of any seller obligation to provide the complete truth about the property. In other words, the seller can both intentionally make misrepresentations in the information it actually discloses and can intentionally fail to disclose adverse information altogether in the document ironically captioned “Seller’s Disclosure-Statement of Condition.” For all of these reasons, we hold this interpretation to be erroneous. Accordingly, we hold that paragraph 5 of the buyer’s acknowledgment does not reheve a seller of the obligation to make accurate and complete disclosures and does not bar Osterhaus’ contract claims as a matter of law.
As for the panel’s incorrect interpretation also driving its analysis of McLellan’s other claims, the panel ultimately concluded that “McLellan’s fraud claim against Fate [McLellan’s agent], Bockelman [sellers’ agent] and RNR [realtor of both agents] fails because she agreed not to rely on their representations and thus could not prove a required element of the claim.” 36 Kan. App. 2d at 17. The panel also concluded that no violation of the Kansas Consumer Protection Act (KCPA) could occur as McLellan “had no legal right to enforce at law because she waived her right to rely on the realtors’ representations when she signed the buyers’ acknowledgment.” 36 Kan. App. 2d at 18. Because McLellan had no legal right to enforce, she could not constitute an “aggrieved consumer” under the Act. 36 Kan. App. 2d at 18. The panel concluded that her agreement not to rely upon the realtors’ representations prevented a causal connection between the representations and her claimed damage. 36 Kan. App. 2d at 18. The panel appeared to similarly dispose of the negligent misrepresentation claim. 36 Kan. App. 2d 1, Syl. ¶ 7 (“the district court was correct in granting summary judgment to buyer’s agent and the sellers for lack of proof of a duty to disclose”). Consequently, we also hold that paragraph 5 does not bar Osterhaus’ reliance-based claims as a matter of law.
As noted by the district court here, the McLellan panel also held that the failure to indicate what representations buyer was relying upon in a separate writing resulted in a “waiver” of buyer’s right to rely upon seller’s representations in the disclosure statement. Because we have held both courts erred in requiring a separate writing, we need not determine whether the lack of a separate writing necessarily created a waiver. Compare Alires, 277 Kan. at 410 (waiver expressly stated in contract) with McLellan, 36 Kan. App. 2d at 13 (no express waiver language in contract).
In conclusion, rather than a terminator of a seller’s obligation to provide complete truth about its property in the disclosure statement, we believe Paragraph 5 more likely attempts to serve as an integrator. An integration clause protects both the seller and the broker from the buyer’s argument that the seller made oral representations upon which the buyer relied. Cf. ARY Jewelers v. Krigel, 277 Kan. 464, 476-77, 85 P.3d 1151 (2004) (integration clause provides that the written contract constitutes the entire agreement between the parties).
Court of Appeals decisions following McLellan
Two panels of the Court of Appeals adopted the reasoning of the McLellan court. In Brennan v. Kunzle, 37 Kan. App. 2d 365, 154 P.3d 1094, rev. denied 284 Kan. 945 (2007), the buyers began experiencing water leakage problems and sued the sellers. Relying upon McLellan, the Brennan panel held as a matter of law that the language of the real estate form documents (identical to the ones in this case) required an identification of the sellers’ representations upon which the buyers relied. Absent specific identification, the buyers could not show reliance upon the sellers’ representations in the disclosure statement and those made before it was signed. Accordingly, they could not prevail on claims of fraudulent and negligent misrepresentation. 37 Kan. App. 2d at 387-88.
Perhaps because a fraud by silence claim does not concern actual representations, unlike the torts of fraudulent and negligent misrepresentation, the Brennan panel applied a different rationale there. More specifically, it did not review the contract language but examined whether the sellers’ failure to disclose material facts that were related to the house, e.g., water leaks, were discoverable with a reasonable buyers’ inspection. It held that the question of the reasonableness of the buyers’ inspection, which had not discovered the defects causing leaks, was a question of fact that precluded summary judgment. The panel noted that the buyers produced evidence that they had not been provided with enough information to warrant further inspection of the water leak issue.
Most recently, in Katzenmeier, 39 Kan. App. 2d 259, the house buyers sued the seller after experiencing water leakage problems. Citing McLellan, the panel held as a matter of law that the language of the real estate form documents, also identical to the ones in the instant case, required an identification of the seller’s representations upon which the buyers relied. Absent any specific identification, the buyers could not show reliance on the seller’s representations in the disclosure statement and those made before it was signed. Consequently, the buyers could not prevail on claims of fraudulent and negligent misrepresentation. “[B]ecause the Katzenmeiers did not declare which representations they were relying on, it would seem that they had agreed, not to rely on any of them.” 39 Kan. App. 2d at 263.
As an apparent alternative ground for holding for the seller, the Katzenmeier panel also held that the buyers factually could not show their justifiable reliance — a required element of both intentional and negligent misrepresentation — upon the disclosure statement:
“They hired two professional inspectors to check the property. The inspections turned up evidence of water leakage and possible drainage problems. Although the inspections did not reveal the full extent of the previous water leales, the inspections put the Katzenmeiers on notice of water leaks or drainage problems. This case, however, is unlike Brennan where it was alleged that careful inspections had not revealed the defect.” 39 Kan. App. 2d at 264-65.
Given our rejection today of the McLellan rationale based upon paragraph 5 of the buyer’s acknowledgment, those parts of Brennan and Katzenmeier relying upon McLellan s rationale are likewise rejected. Similarly, the reliance by the district court upon McLellan in our case, while certainly understandable, was nevertheless error. Accordingly, the appellate arguments of Toth, Schunk, TopPros, and the amicus curiae Reece & Nichols Realtors that embrace McLellan are rejected.
As a result, we reverse the district court’s grant of summary judgment to defendants on all of Osterhaus’ claims which were based upon the rationale that the reliance element could not be met as a matter of law due to his signature on, and agreement to, paragraph 5 of the buyer’s acknowledgment.
While the defendant’s contract-based argument of “no reliance” is rejected as a matter of law, another related issue must be addressed. Specifically, we must determine whether Toth’s misrepresentations (fraudulent and negligent), or her failure to disclose defects, could have been reasonably relied upon by Osterhaus — or whether a reasonable inspection nevertheless would have revealed the defects about which he complains.
We begin by observing that Osterhaus complains many items were not disclosed by Toth, Schunk, or both. Examples include: concrete damage, e.g., cracks to the foundation; the recency of the Marsee repairs; damage to the interior (sheetrock) basement wall; the movement of the west basement wall; water in the basement; and the Tomlinson inspection report or cancellation notice.
Osterhaus also complains not only of the defendants’ failure to disclose but also of concealment of defects. According to Osterhaus, between Tomlinson’s inspection and the viewing by Osterhaus and his inspector, Rawlings, Toth allegedly removed the damaged sheetrock on the south side of the wall and sealed up evidence of damage on the wall’s north side by sheetrocking over it. He also complains that Toth repaired the interior partition wall so evidence of the wall movement would not be detected. Osterhaus further complains that Toth moved her personal property back to cover the west wall within 3 days of Marsee’s repairs to prevent Rawlings from doing a reasonable and adequate investigation and inspection.
Osterhaus concludes most, if not all, of these matters could not have been discovered through reasonable inspection. See Brennan, 37 Kan. App. 2d at 379 (fraudulent nondisclosure, or fraud by silence, depends in large part on the buyer’s inability to discover a defect with a reasonable inspection). Cf. Alires, 277 Kan. at 411 (buyer could not reasonably rely upon representations of seller when truth or falsity of representation would have been revealed by an inspection of the property, unless fraud “prevented the making of a full, fair, and complete examination of the property”).
Toth responds that Osterhaus noticed the ceiling-to-floor diagonal crack (and epoxy) in the west basement wall on the day of inspection, August 3, 2002, and therefore testified he was aware Toth had incorrectly filled out Section 8 of the disclosure statement regarding cracks and leakage in the basement foundation walls. Toth also argues that the comments by Osterhaus’ inspector, Raw-lings — “Major cracking is noted. Repairs have been made. Appears serviceable” — put Osterhaus on sufficient notice of recent cracking and movement of the west wall. Consequently, she contends his claims are barred. Toth further argues that when Rawlings saw the cracks in the basement wall (though epoxied), Rawlings should have suspected wall movement and “knew or should have known” that Toth lied on her disclosure statement.
Both Toth and Schunk argue that experts opined that the damage and wall movement could have been, or should have been, discovered via measurement by Osterhaus’ inspector, Rawlings. Osterhaus infers from Rawlings’ affidavit language that he should have been advised of the recency of the repairs to the west wall; otherwise, he would not have written in his report “[wall] appears to be stable.” Osterhaus suggests that Rawlings’ failure to include cracking as a major concern in his report was the result of defendants’ failure to disclose that the repairs were recent.
We resolve this issue — of whether a reasonable inspection would have revealed the defects about which Osterhaus complains — by recalling that the district court granted summary judgment. Its memorandum decision stated that the three types of fraud claims — fraud, fraud by silence, and negligent misrepresentation— were rejected for failure to show reliance because of the buyer’s acknowledgment and agreement in paragraph 5 not to rely upon the seller’s disclosure statement. Admittedly the decision then provides: “Moreover, Osterhaus obtained an independent inspection which identified "major cracking’ in the basement wall.” Unfortu nately, the memorandum decision does not elaborate on this particular observation or attempt to explain how, if at all, it figures in the rationale and holding.
Under these circumstances, we cannot conclude that summary judgment was appropriate on this basis of identification of “major cracking.” Or, if it turns out that summary judgment was not granted by the district court on this basis, we cannot independently now conclude that our deciding this issue as a matter of law on this record is appropriate. Warner v. Stover, 283 Kan. 453, 455-56, 153 P.3d 1245 (2007) (“ ‘[W]here we find that reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ ”).
Brennan is of guidance on whether house defects were discoverable after inspection. There, the buyers discovered water and mold on a study carpet and water on a closet floor in the basement before closing. After some seller action to repair these leaks and after the transaction’s closing, the buyers experienced water infiltration in an interior wall. A process of destructive testing revealed significant infiltration through the exterior of the house and through the walls, including where the deck joined the house. Roughly 1 month after closing, the sellers, for the first time, disclosed to the buyers a professional engineer’s report concerning four water leak areas in the house. The report noted that destructive testing would have to be completed in order to pinpoint the exact location of the leak. The sellers spent approximately $4,500 on repairs. By contrast, the buyers spent more than $500,000 to resolve the water infiltration problems.
The buyers alleged fraud and negligent misrepresentations, claiming the seller failed to disclose several material facts, including the professional engineer’s report. In relevant part, the Brennan panel stated:
“The Kunzles conducted a number of inspections, but they did not discover the defects until after taking possession of the house. Moreover, the Kunzles presented evidence that the defects were not discoverable through reasonable inspections. The reasonableness of the Kunzles’ inspections was a question of fact. ‘ “It is only when it can be said that reasonable persons could reach but one conclusion from the same evidence that an issue may be decided as one of law.” ’ [Citation omitted.] Because more than one conclusion can be drawn from the same evidence, the trial court erred in determining as a matter of law that the Kunzles failed to establish a genuine issue of material fact as to whether the defects could have been discovered had the Kunzles hired ‘professional inspectors to look at the water related items.’ The determination of whether the defects were discoverable through a reasonable inspection was a function of the trier of fact. [Citation omitted.]” (Emphasis added.) 37 Kan. App. 2d at 386.
Moreover, Toth allegedly sealed the evidence of the wall damage and moved her personal items to cover the west wall. To the extent Osterhaus also is essentially arguing that he therefore was fraudulently prevented from making “a full, fair, and complete examination of the property,” we note that the existence of fraud is also a question of fact. Alires, 277 Kan. at 403, 411. On summary judgment, we generally do not resolve factual questions. See Warner, 283 Kan. at 455 (trial court 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).
We reject the defendants’ arguments that, as a matter of law, Osterhaus could not have relied upon the representations. Summary judgment was incorrectly entered on their behalf.
Issue 2. The “as is” and release provisions in the form Amendment do not har Osterhaus’ claim for breach of contract.
Toth, Schunk, and TopPros next alternatively argue they are entitled to summaiy judgment on Osterhaus’ breach of contract claim because the form Amendment to the sales contract captioned “Resolution of Unacceptable Conditions” contains an “as-is” provision. More specifically, paragraph 2.c on the form Amendment provides in relevant part that “[b]y closing the transaction, Buyer accepts the Property in its present ‘as is’ condition.” Paragraph 2.d also states in relevant part that “Sellers and Realtors are released from any further obligation or liability related to the condition of the Property.”
Osterhaus responds that the “as-is” provision is limited to the unacceptable conditions outlined by the buyer. He contends that this hmiting provision does not make the entire contract an “as-is” contract but rather is one of several options a buyer has when dealing with unacceptable conditions discovered after an inspec tion. The district court specifically declined to address this issue in its ruling on the summary judgment motions.
The “as-is” clause must be read in context. Decatur County Feed Yard, Inc., 266 Kan. at 1005 (cardinal rule of contract construction requires court to construe all provisions together and in harmony rather than in isolation); Cf. Southwestern Bell Tel. Co. v. Beachner Constr. Co., 289 Kan. 1262, 1270, 221 P.3d 588 (2009) (provisions of an act must be construed in pari mateña in an effort to make all provisions consistent, harmonious, and sensible). The form Amendment gives the buyer several options for dealing with unacceptable conditions and memorializes the methods for resolving them. The buyer may accept the property “as is,” i.e., without seller action correcting the unacceptable conditions (paragraph 1); agree to change the purchase price (paragraph 2.a); agree to accept payment or credit in lieu of correction of the unacceptable conditions (paragraph 2.b); or agree with the seller that certain conditions will be corrected (paragraph 2,c). In this case, Osterhaus agreed through paragraph 2.c that Toth would pay $900 of Osterhaus’ closing costs in lieu of making the corrections to the three identified unacceptable conditions, none of which concerned the basement: electric, chimney, and insulation.
The Amendment clearly deals with the issue of unacceptable conditions revealed by a buyer’s inspection. We observe that the Amendment expressly provides at the outset:
“THIS AGREEMENT IS FOR DOCUMENTING THE METHOD OF RESOLVING ANY UNACCEPTABLE CONDITIONS REVEALED BY BUYER’S INSPECTION AND WHICH WERE THE BASIS OF BUYER’S OFFER TO RENEGOTIATE. . . .” (Emphasis added.) Accordingly, it provides in the next paragraph, “THE AGREEMENT(S) SET FORTH IN THIS AMENDMENT CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE BUYER AND SELLER WITH RESPECT TO RESOLUTION OF THE UNACCEPTABLE CONDITIONS IDENTIFIED IN BUYER’S OFFER TO RENEGOTIATE,” and that had been revealed by the buyer’s inspection.
In the same fashion, paragraph 1 provides in relevant part: “BUYER AGREES TO ACCEPT PROPERTY ‘AS IS.’ Buyer con ducted inspections, found unacceptable conditions and notified Seller of Buyer’s desire to renegotiate the Contract.” (Emphasis added.) Similarly, paragraph 2 provides: “RESOLUTION OF UNACCEPTABLE CONDITIONS: Buyer conducted inspections, found unacceptable conditions and notified Seller of Buyer’s desire to renegotiate the Contract.” (Emphasis added.)
Although the defendants are accurate in their references to the Amendment language, the Amendment is clearly based upon the premise that defects have been discovered during the buyer inspections and that, at least initially, they have been identified to the seller for possible resolution. The language from subparagraphs c and d of paragraph 2 follow that main paragraph’s prefatory, captioned language: “RESOLUTION OF UNACCEPTABLE CONDITIONS.” The options in the Amendment break down when, as here, for whatever reason, Osterhaus’ inspection apparently did not reveal the defects in the foundation in order for them to be identified as unacceptable conditions. Accordingly, the “as-is” language does not extend to the foundation problems and does not preclude Osterhaus’ claim for breach of contract.
We remand to the district court to make factual findings as to whether a reasonable inspection would have revealed the defects in the foundation such that they should have been included as unacceptable conditions by Osterhaus in the form Amendment.
Issue 3: Whether Osterhaus’ claims for fraud and negligent misrepresentation are barred by the 2-year limitations period is a fact question.
Toth, Schunk, and TopPros argue an alternative basis for upholding their summary judgment on Osterhaus’ claims for fraud, fraud by silence, and negligent misrepresentation. Specifically, they argue these claims are barred because they were not filed within 2 years as required by K.S.A. 60-513(a)(3) and (a)(4). The district court specifically declined to address this issue in its ruling on the summary judgment motions.
Under K.S.A. 60-513(a)(3), fraud causes of action “shall not be deemed to have accrued until the fraud is discovered.” Defendants contend that Osterhaus learned that Toth’s disclosure contained misrepresentations during his inspection with Rawlings on August 3, 2002. Because Osterhaus’ petition was not filed until August 11, 2004, defendants contend that his claims are time-barred.
Osterhaus counters with the plain language of K.S.A. 60-513(b):
“Except as provided in subsections (c) and (d), the causes of actions listed in subsection (a) [e.g., fraud] 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.” (Emphasis added.)
Osterhaus contends that he could not have suffered any damages until the transaction was completed — the closing date was August 20, 2002 — and a fact question remains on when the injury was “reasonably ascertainable.” He cites Gilger v. Lee Constr., Inc., 249 Kan. 307, 322, 820 P.2d 390 (1991), to argue that the determination of when the substantial injury became reasonably ascertainable is a question of fact for the jury. There, a family sued after it allegedly became ill because of an improperly vented furnace. This court held that summary judgment was improperly granted because a genuine issue of material fact existed as to when the family reasonably ascertained it suffered substantial injuries caused by the defendants’ negligence.
Gilger discussed, and distinguished, several cases in which summary judgment was sustained on the issue of reasonable ascertain-ability. See, e.g., Friends University v. W.R. Grace & Co., 227 Kan. 559, 608 P.2d 936 (1989). For many of the same reasons we explained in Issue 1, however, we agree with Osterhaus. For example, whether a reasonable inspection would have revealed the defects about which he complains, and whether those defects would cause the later basement leaking, are questions of fact. See, e.g., Brennan, 37 Kan. App. 2d at 386 (determination of whether the defects were discoverable through a reasonable inspection was a function of the trier of fact).
In short, this issue involves a question of fact that was not resolved by the district court, and we are unable to resolve on appeal. Accordingly, we remand to the district court for a determination of when the fact of injury was reasonably ascertainable by Osterhaus.
Issue 4: Whether Toth was a “supplier” under the KCPA is a fact question.
Toth next argues that no claims could be brought against her under the KCPA because she is not a “supplier,” as required by the Act. K.S.A. 50-624(j) defines “supplier” as “a manufacturer, distributor, dealer, seller, lessor, assignor, or other person who, in the ordinary course of business, solicits, engages in or enforces consumer transactions, whether or not dealing directly with the consumer.” The district court, however, had ruled Osterhaus could not be an aggrieved consumer because he had no legal right to enforce at law due to his waiver of his right to rely on Toth’s representations.
Interpretation of the KCPA requires an additional set of review standards for us to consider. “Interpretation of a statute is a question of law, . . . and our review is unlimited. Accordingly, when determining a question of law, we are not bound” by the trial court’s interpretation of a statute. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 819, 104 P.3d 378 (2005). “ ‘ “When construing a statute, a court should give words in common usage their natural and ordinary meaning.” ’ ” 278 Kan. at 822.
Osterhaus alleges that Toth’s numerous real estate transactions — seven—over a 2V2-year period qualify her as a “supplier” under the KCPA. He argues that under Heller v. Martin, 14 Kan. App. 2d 48, 51, 782 P.2d 1241 (1989), Toth is a supplier because she is “a person engaged in the buying and selling of real estate for her own account.” Osterhaus further contends this is a factual determination to be made by the district court.
Toth distinguishes herself from the seller of a home who was found to be a supplier in Heller, pointing out that its seller was a real estate agent. Toth also corrects Osterhaus’ misstatement regarding the number of real estate transactions in which she had engaged over a short period of time. She claims that she only bought and sold three homes in 2% years and that she lived in each home.
We agree with Osterhaus that whether Toth is a supplier is a factual question to be decided in the district court. One element of this determination is Toth’s intent behind the sales of her real estate. Cf. Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 134, 815 P.2d 72 (1991) (intent of contracting parties is normally a question of fact for the juiy). To be a supplier under the KCPA, Toth must be a seller who engages in consumer transactions in the ordinary course of business. Under Heller, the district court may determine if “[h]er ordinary business was solicitation of real estate sales.” 14 Kan. App. 2d at 51. As that court held, “It is also immaterial that the subject residence was owned by her and that, as its owner, she was its seller.” 14 Kan. App. 2d at 51. Accordingly, we remand this issue to the district court.
Issue 5: The district court erred in granting summary judgment against Osterhaus on the negligent misrepresentation claim under BRBETA.
Osterhaus has argued that agent Schunk had actual knowledge that contradicted the omissions from, and the false statements contained in, Toth’s disclosure statement and which was also not disclosed in the inspection report by Osterhaus’ inspector, Rawlings. He has contended that under the Brokerage Relationships in Real Estate Transactions Act (BRRETA), K.S.A. 58-30,101 et seq., Schunk also had a duty to disclose this actual knowledge to Osterhaus personally or through his agent. Schunk’s knowledge allegedly included the deliberately concealed evidence of the severe damage, the recency of the basement wall repairs, and especially the movement of the west foundation wall. The latter was contained in the inspection report of the initial purchaser, Tomlinson, and stated in relevant part: “Basement walls have cracks and west wall appears to have moved IV4-IV2 inches.”
On appeal to this court, Schunk responds that he provided the Tomlinson report to Osterhaus’ agent, although the agent testified she did not recall his ever telling her about the report, Tomlinson’s contract cancellation, or the foundation problems in the basement. In the alternative, Schunk contends he had no duty to disclose information from Tomlinson’s inspection because it was not omit ted from or contradictory to any information contained in Osterhaus’ own inspection report. In support of this argument, Schunk explains that Osterhaus’ engineering expert, David Hobbs, testified that “seeing the kind of cracks that were noted by The Inspection Company on the west wall of the basement, would cause him as a home inspector to suspect wall movement and to make measurements of the wall or otherwise investigate further to help verily such movement.”
As a seller’s agent, Schunk can be held liable for negligent misrepresentation under BRRETA. The relevant provisions are K.S.A. 58-30,106(d)(3) and (4), which state:
“(3) Except as provided in subsection (d)(4), a seller’s or landlord’s agent is not required to disclose to a client or customer information relating to the physical condition of the property if a written report regarding the physical condition of the property has been prepared by a qualified third party and provided to the client or customer.
“(4) A seller’s or landlord’s agent shall disclose to the client or customer any facts actually known by the licensee that were omitted from or contradict any information included in a written report described in subsection (d)(3).” (Emphasis added.)
Additionally, K.S.A. 58-30,111(c) provides:
“A statutory agent or transaction broker shall not be hable for an innocent or negligent misrepresentation in information provided to the seller or landlord or to the buyer or tenant if the licensee does not have personal knowledge of the error, inaccuracy or omission that is the basis for the claim of misrepresentation." (Emphasis added.)
The district court held that, “[b]ecause The Inspection Co.’s report indicated both ‘major cracking’ in the basement wall and that repairs had been made, Schunk had no duty to disclose this information. Therefore, Schunk and TopPros are entitled to summary judgment on Osterhaus’ negligent misrepresentation claim” brought under BRRETA.
As was suggested earlier with the court’s similar language rejecting other misrepresentation claims, e.g., fraud, unfortunately this ruling is incomplete. It indicates that Schunk had no duty to disclose “this” information — major cracking in the basement wall and that repairs had been made. But it fails to address the possible problems known to Schunk beyond these two issues and whether Schunk failed to disclose them. For example, the ruling is silent on whether Schunk knew of movement in the foundation walls, although he admitted having a copy of the Tomlinson report which identified this west basement wall movement of IV4 to IV2 inches. Unquestionably wall movement was not disclosed in Osterhaus’ report prepared by Rawlings of The Inspection Co. While Schunk argues he gave the Tomlinson report to Osterhaus’ agent, the agent’s testimony creates a genuine issue of material fact that prevents summary judgment. See Warner, 283 Kan. 453, Syl. ¶ 4.
Although Osterhaus’ own engineering expert seems to suggest that Rawlings should have discovered the wall movement during the inspection and included it in his report to Osterhaus, the simple fact remains that it was not included. Moreover, the reasonableness of Rawlings’ inspection is for the trier of fact. See Brennan, 37 Kan. App. 2d at 386. Finally, an expert’s opinion is not necessarily dispositive of the issue on a motion for summary judgment. Cf. McGinley v. Bank of America, N.A., 279 Kan. 426, 441-42, 109 P.3d 1146 (2005) (expert witness’ opinion on the legal validity of document’s exculpatory provision is not determinative of the issue).
In short, genuine issues of material fact remain concerning what information Schunk knew and what he disclosed to Osterhaus or Osterhaus’ agent that were omitted from, or contradict any information included in, Rawlings’ report to Osterhaus. Accordingly, we remand this issue to the district court for determination.
Issues 6-9: Remaining issues raised by the parties.
Osterhaus’ motion to amend the petition
On October 10, 2006, Osterhaus filed a motion for leave to amend his petition, seeking to add a claim for punitive damages, clarify facts, and clarify his damages. He also sought to substitute Cheryl Tsiguloff for Toth, due to Toth’s incapacitation, and to add a cause of action for rescission based on Toth’s alleged dementia. The district court did not directly rule on the motion. At the October 20, 2006, hearing on the motion for summary judgment, counsel for Schunk asked about Osterhaus’ pending motion to amend. The court explained that it was granting summary judg ment and encouraged the parties not to waste time continuing discovery or other work on the case pending appeal. As a result, it apparently found that the issue was moot.
Osterhaus argues that the district court abused its discretion in effectively denying his motion to amend his petition. We acknowledge that appellate courts review a district court’s decision whether to amend a petition to claim punitive damages for abuse of discretion. K.S.A. 60-209(g); K.S.A. 60-3703; Lindsey v. Miami County National Bank, 267 Kan. 685, 689, 984 P.2d 719 (1999); see also K.S.A. 60-215(a); Johnson v. Board of Pratt County Commr’s, 259 Kan. 305, 327, 913 P.2d 119 (1996) (district court given broad discretionary power under 60-215 to permit amendment of pleadings but appellate court will not find reversible error unless amendment allowed or denied is so material it affects the substantial rights of the adverse party). But because the district court did not directly address the issue, this court does not have any factual findings or legal conclusions to review. See State v. Thomas, 288 Kan. 157, 161, 199 P.3d 1265 (2009) (appellate courts do not make factual findings but review those made by district court). Accordingly, we remand this issue to the district court for consideration.
Osterhaus’ fraud and breach of contract claims
Toth argues that Osterhaus must show his claims for fraud caused damages beyond those caused by the breach of contract in order to bring both causes of action. She asserts that the claims and requested damages are the same for Osterhaus’ fraud claims as they are for his breach of contract claim.
In Osterhaus’ motion, he sought leave to amend his petition to add claims for punitive damages, substitute parties, and clarify some of his claims, including the factual basis and the damages sought. Because we do not yet know whether the district court will allow Osterhaus to amend his petition on remand, we cannot presently determine whether Osterhaus’ fraud claims are identical to those for breach of contract. As a result, we do not reach Toth’s argument on appeal.
Points not raised before the panel
Schunk argues that the Court of Appeals panel erred in failing to sustain summary judgment to TopPros because TopPros did not formally exist until 20 months after the transaction between Osterhaus and Toth closed. However, Schunk’s brief simply had stated: “Finally, some 20 months after Defendant Toth and The Plaintiff closed on the purchase of the subject house, Defendant Top Pros Real Estate, Inc. was incorporated and came into existence.” Schunk did not otherwise brief the issue or raise it at argument. Points raised only incidentally in a party’s brief but not argued in the brief are deemed abandoned. State v. Mattox, 280 Kan. 473, 492, 124 P.3d 6 (2005); Enlow v. Sears, Roebuck & Co., 249 Kan. 732, 744, 822 P.2d 617 (1991). See also Rule 6.03(d) (2010 Kan. Ct. R. Annot. 43) (appellee’s brief shall contain the arguments and authorities relied upon).
Likewise, Schunk’s argument that the panel erred in fading to dismiss Osterhaus’ breach of contract claim against Schunk because he was not a party to the contract is deemed abandoned because it was not argued to the panel. See Telegram Publishing Co. v. Kansas Dept. of Transportation, 275 Kan. 779, 794, 69 P.3d 578 (2003) (citing Hephner v. Traders Ins. Co., 254 Kan. 226, 236, 864 P.2d 674 [1993]). The same fate holds true for other arguments not raised to the panel.
Finally, we have examined the other arguments raised in the 12 briefs submitted to this court and conclude they have no merit.
Attorney fees
On Januaiy 19, 2011, Osterhaus filed a motion for leave to file out of time a motion for attorney fees and costs pursuant to Supreme Court Rule 7.07(b) (2010 Kan. Ct. R. Annot. 62). The rule provides that “[a]ppellate courts may award attorney fees for services on appeal in any case in which the trial court had authority to award attorney fees. . . . The motion shall be filed with the clerk of the appellate courts no later than fifteen (15) days after oral argument.” Applying the standard for extensions of time found in Supreme Court Rule 5.02 (2010 Kan. Ct. R. Annot. 35) to motions under Rule 7.07, we have stated that “[n]o extension will be granted except on stated grounds reasonably indicating the necessity therefor.” See Evenson Trucking Co. v. Aranda, 280 Kan. 821, 843-44, 127 P.3d 292 (2006) (denial of untimely motion for fees that was alleging attorney inadvertence).
Osterhaus offers no explanation of the necessity for his delay in filing the motion well after oral arguments to this court. His motion is therefore denied.
The decision of the Court of Appeals is affirmed. The decision of the district court is reversed and remanded to the district court for further proceedings. | [
-13,
-18,
-39,
-49,
14,
96,
58,
-86,
105,
-75,
39,
91,
77,
78,
20,
121,
-26,
61,
-32,
105,
78,
-77,
71,
-128,
-42,
-77,
-64,
85,
-72,
79,
-12,
-122,
76,
48,
-54,
53,
70,
-126,
-65,
28,
-102,
-118,
8,
-44,
-39,
66,
52,
-33,
92,
67,
113,
-17,
-13,
62,
21,
-61,
44,
40,
-5,
-67,
-63,
-7,
-5,
15,
-34,
23,
-94,
36,
84,
69,
-6,
-90,
-102,
56,
9,
-23,
123,
-106,
-106,
52,
75,
-117,
8,
38,
98,
34,
25,
-25,
-20,
-100,
-85,
93,
-99,
-89,
-111,
88,
3,
45,
-66,
-100,
124,
84,
2,
-4,
-26,
84,
27,
-4,
10,
-82,
-42,
-77,
30,
112,
-125,
11,
-25,
-125,
33,
112,
-51,
-92,
94,
-42,
18,
63,
14,
-68
] |
The opinion of the court was delivered by
Biles, J.;
Terrance Kelly appeals the district court’s denial of his pro se motion titled “Motion to Withdraw Plea and to Correct Illegal Sentence and to Vacate Sentence.” The district court construed the motion as an ineffective assistance of counsel claim under K.S.A. 60-1507 and denied it as untimely. On appeal, Kelly argues the district court should have treated his motion as a motion to withdraw his plea. This court has jurisdiction under K.S.A. 22-3601(b)(1) (off-grid crime; life sentence). Because the district court should have construed Kelly’s motion as a motion to withdraw his plea, we reverse and remand for reconsideration.
Factual and Procedural Background
In 1994, Kelly killed a liquor store clerk during a robbery. Kelly was 14 years old. He was charged with first-degree felony murder and aggravated robbeiy. The juvenile court waived jurisdiction, certifying Kelly for adult prosecution. While represented by counsel, Kelly pleaded guilty to both charges. Pursuant to his plea negotiations, the State and Kelly jointly recommended the district court enter a downward durational departure sentence on the aggravated robbeiy charge based on the defendant’s age as a mitigating factor. They also recommended the sentences run consecutively. The district court imposed the presumptive sentence instead of the recommended departure, resulting in a life sentence for the felony-murder charge and a consecutive 172-month sentence for the aggravated robbery charge.
On August 30,2007, almost 12 years after sentencing, Kelly filed a pro se motion titled “Motion to Withdraw Plea and to Correct Illegal Sentence and to Vacate Sentence” and an 11-page memorandum of law supporting that motion. Most of Kelly’s arguments claimed his sentence was illegal because he should have been prosecuted as a juvenile. But he also alleged ineffective assistance of counsel. Kelly pursued this claim in a section of his memorandum titled “Defendant was Denied Effective Assistance of Counsel,” in which he alleged the following: (1) Counsel prevented him from making an informed plea decision because he was not fully apprised of the sentencing ranges and jurisdiction; (2) counsel failed to keep him informed regarding the plea negotiations; (3) counsel failed to investigate or advise Kelly of any defenses or trial strategies available if he did not enter a guilty plea; and (4) counsel failed to advise Kelly of the rights he would be waiving by entering a plea. It also recited the three-prong test for ineffective assistance of counsel and alleged counsel’s conduct fell below an objective standard of reasonableness.
The district court denied Kelly’s motion without holding a hearing. It construed the motion as raising two claims: (1) Kelly’s sentence was illegal because he was tried as an adult; and (2) Kelly received ineffective assistance of counsel. As to the latter, the district court characterized it as “a claim generally raised under K.S.A. 60-1507.” Ultimately, the district court held the Kansas Juvenile Code allows juveniles to be tried as adults and that adult certification was proper in this case. Kelly does not challenge this finding on appeal. Regarding the ineffective assistance of counsel claims, which are the focus in this appeal, the district court held they “should have been made” in a K.S.A. 60-1507 motion and the 1-year limitations period on a K.S.A. 60-1507 motion had expired several years earlier. Finally, the district court held “there is no manifest injustice supporting an extension of time.” (Emphasis added.) Kelly timely appealed.
Analysis
Kelly argues the district court should have treated his pro se pleading as a motion to withdraw his plea under K.S.A. 22-3210(d). He argues remand is necessary for the district court to consider whether his plea should be withdrawn to correct manifest injustice. Because Kelly claims his counsel was ineffective and his counsel’s failures infected his plea negotiations, we agree the district court should have construed Kelly’s pleading as a motion to withdraw his guilty plea.
Pro se pleadings are liberally construed, giving effect to the pleading’s content rather than the labels and forms used to articulate the defendant’s arguments. A defendant’s failure to cite the correct statutory grounds for his or her claim is immaterial. See Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004) (construing pro se K.S.A. 60-1507 motion as a request for DNA testing under K.S.A. 21-2512). Whether the district court correctly construed a pro se pleading is a question of law subject to unlimited review. Cf. Estate of Draper v. Bank of America, 288 Kan. 510, 517, 205 P.3d 698 (2009) (de novo review applies to the construction of written instruments such as antenuptial agreements).
At the time Kelly filed this motion, K.S.A. 22-3210(d) governed the decision to grant or deny a motion to withdraw a guilty plea. It states:
“A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” K.S.A. 22-3210(d).
It should be noted that K.S.A. 22-3210 was amended in 2009. L. 2009, ch. 61, sec. 1. The amended statute imposes a 1-year time limitation on motions to withdraw a plea, which may be extended upon a showing of excusable neglect. K.S.A. 2009 Supp. 22-3210(e). Under similar facts, this court prematurely analyzed the defendant’s motion to withdraw a plea under the amended statute in State v. Edwards, 290 Kan. 330, 334-35, 226 P.3d 1285 (2010). Since Kelly filed this motion before the K.S.A. 22-3210 amendments became effective, we emphasize that the pre-amended statute controls, and we abrogate any language in Edwards suggesting K.S.A. 2009 Supp. 22-3210 applies under these facts.
As stated above, K.S.A. 22-3210(d) creates two standards for evaluating motions to withdraw pleas. The first applies before sentencing, when courts have discretion to permit withdrawal upon “good cause” shown. But after sentencing, courts may permit a plea withdrawal only to correct “manifest injustice.” Some factors courts may consider when determining whether to grant a motion to withdraw a plea are: “(1) whether the defendant was represented by competent counsel, (2) whether the defendant was misled, coerced, or unfairly taken advantage of, and (3) whether the plea was fairly and understandingly made.” State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010). As these factors demonstrate, whether plea counsel was ineffective is relevant to determining whether a motion to withdraw a plea should be granted. The district court erred in assuming that all ineffective assistance of counsel claims should be construed as K.S.A. 60-1507 motions.
Next, we must determine under our rules requiring liberal construction of pro se pleadings whether the contents of Kelly’s filing could be construed as raising a motion to withdraw his plea. In his motion and supporting memorandum, Kelly alleged he was not informed of the rights he would waive by entering a plea agreement, that counsel failed to investigate available defenses that would be relevant to determining whether a plea was in Kelly’s best interest, and that Kelly did not fully understand the sentence recommended under the agreement. We find these allegations sufficient to warrant consideration of Kelly’s filing in 2007 as a motion to withdraw his guilty plea. The district court erred by construing Kelly’s motion solely as a K.S.A. 60-1507 motion and then denying it because it was untimely under that provision.
Finally, we should emphasize a point Kelly’s appellate counsel conceded during oral argument, which is that the district court was not required to hold a hearing before determining the merits of Kelly’s claims. The error was that the district court did not consider Kelly’s motion in light of the manifest injustice requirements set out in K.S.A. 22-3210 as that statute existed at the time Kelly filed his motion.
On remand, the district court must determine whether Kelly may withdraw his plea in order to correct manifest injustice. As this court recently stated in Aguilar, the manifest injustice requirement is appropriate when a motion to withdraw plea is filed after sentencing because the State’s case weakens the longer a defendant waits to file a motion to withdraw the plea. The plea withdrawal statute is not intended to provide a tool for temporal manipulation. 290 Kan. at 512.
Reversed and remanded with directions.
Timothy E. Brazil, District Judge, assigned. | [
-16,
-12,
-52,
-98,
10,
-32,
58,
-68,
112,
-13,
103,
115,
33,
71,
17,
59,
-5,
-67,
84,
-23,
84,
-73,
87,
81,
-73,
-13,
81,
87,
-75,
-1,
-12,
-97,
76,
-32,
98,
-43,
70,
-54,
-27,
86,
-118,
5,
-72,
-20,
120,
-117,
32,
3,
28,
15,
117,
78,
-93,
107,
26,
-22,
-39,
109,
89,
-83,
122,
-104,
-125,
-115,
-1,
0,
-93,
-76,
-100,
6,
112,
126,
-120,
57,
3,
-24,
114,
-106,
-122,
-44,
111,
-119,
44,
102,
99,
0,
-35,
111,
-67,
-103,
30,
95,
-75,
38,
-39,
121,
64,
68,
-105,
-67,
112,
20,
47,
112,
-17,
92,
71,
-20,
-118,
-62,
-104,
-77,
79,
49,
-122,
123,
-5,
5,
0,
101,
-52,
-64,
92,
-13,
122,
-33,
-66,
-108
] |
The opinion of the court was delivered by
Nuss, C.J.:
James Malmstrom directly appeals his sentence following guilty pleas to two counts of attempted aggravated indecent liberties with a child. More specifically, he claims that after the district court correctly departed from the life sentence with a mandatory minimum term of imprisonment contained in Jessica’s Law, K.S.A. 21-4643, the court incorrectly refused to then depart from the applicable gridbox in the Kansas Sentencing Guidelines.
Based upon the holding and rationale of State v. Horn, 288 Kan. 690, 206 P.3d 526 (2009), we hold the district court erred. Accordingly, we vacate Malmstrom’s sentence and remand to the district court for resentencing.
Facts
On August 6, 2008, the State charged Malmstrom with two counts of attempted aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(A) and the attempt statute, K.S.A. 21-3301. The charges stemmed from events occurring on or between April 1, 2007, and January 31, 2008, and involved children under the age of 14. Malmstrom was 50 years old at the time.
Malmstrom pleaded guilty to both counts. The plea agreement, in relevant part, provides:
“[Pjursuant to K.S.A. 21-4643(d), the State will agree to recommend a downward departure sentence from life prison sentences without parole for 25 years . . . [t]he departure would be to the presumptive guidelines sentence, which it is believed would be to a grid-level one presumptive prison sentence ranging from 147 months to 165 months in prison. The parties will further agree to recommend the midrange sentence of 155 months on each count.”
During plea negotiations, both parties assumed that Malmstrom had no criminal history and that he would receive a criminal history score “I.” But his presentence investigation report (PSI) revealed a prior conviction for residential burglary, which produced a criminal history score “D” for Count 1 (primary offense) and a criminal history score “I” for Count 2.
At sentencing, the parties continued to believe that without departure, Malmstrom’s sentence was imprisonment “for life with a mandatory minimum term of imprisonment of not less than 25 years” under Jessica’s Law, K.S.A. 21-4643. Malmstrom aslced the district court to depart from that off-grid sentence to a severity level 1, and to a criminal history score “I” in Count 1 to match the one in Count 2. He claimed this resolution was the nature of the original plea agreement. The State expressed a continued interest in following the plea agreement. However, it “was not certain that the law allows for a double departure,” i.e., departing from the off-grid sentence to the sentencing guidelines, and then departing from his actual criminal history “D” to criminal history “I” for Count 1.
The district court found substantial and compelling reasons to grant a departure sentence under K.S.A. 21-4643(d). The judge specifically found that Malmstrom had no other significant prior criminal history, he was cooperative with law enforcement, and the victims asked for a lighter sentence. The judge then explained that Jessica’s Law only permitted him to depart from the off-grid sentence of life and its mandatory minimum to the sentence pursuant to the guidelines, which the judge apparently interpreted to be a severity level 1 offense. In this respect, the judge agreed with the State that he could not “double” depart on Count 1, i.e., from off-grid to the sentencing guidelines, and then from the actual criminal history of “D” to “I.”
Based upon the specific length of the sentences imposed, we are able to conclude that the judge followed this rationale. He departed from the off-grid sentence of life and its mandatory minimum to a severity level 1 offense. With a criminal history “D,” Malmstrom received 240 months’ imprisonment on Count 1, and with a criminal history “I” for Count 2, Malmstrom received 155 months’ imprisonment. The sentences were to run concurrently.
More facts will be added as necessary to the analysis.
Analysis
Issue: The district court erred hy starting its departure analysis off-grid.
The district judge believed that he was authorized to depart for both counts from the usual sentence of life imprisonment with a mandatory minimum of 25 years to severity level 1 for the sentence pursuant to the guidelines but was unable to then depart to a more beneficial criminal history for Count 1.
Resolution of this issue involves statutory interpretation, which is a question of law over which we exercise unlimited review. State v. Ballard, 289 Kan. 1000, 1006, 218 P.3d 432 (2009).
Malmstrom pleaded guilty to attempted aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(A). Subsection (c) of that statute provides that for an offender 18 years of age or older, “aggravated indecent liberties with a child as described in subsection (a)(3) is an off-grid person felony.” (Emphasis added.)
Jessica’s Law imposes a life sentence with a mandatory minimum of 25 years’ imprisonment when a defendant is over 18 and convicted of, inter alia, aggravated indecent liberties with a child as defined in K.S.A. 21-3504(a)(3). See K.S.A. 21-4643(a)(l)(C). The latter statute further specifies that a conviction for an attempt to commit aggravated indecent liberties also warrants this sentence. K.S.A. 21-4643(a)(l)(G).
Based upon the district court’s reading of Jessica’s Law, it started its departure analysis off-grid. It then found substantial and compelling reasons to depart under K.S.A. 21-4643(d). Before we address the propriety of this particular departure, we must address the attempt statute’s role in this case.
K.S.A. 21-3301(c), the attempt statute, provides that “[a]n attempt to commit an off-grid felony shall be ranked at nondrug severity level 1.” Under this provision, a person convicted of attempting to commit an off-grid crime would receive a sentence on the sentencing grid for a severity level 1 felony. Until the 2010 legislature amended K.S.A. 21-3301(c), the only exemptions from this provision were the crimes of terrorism under K.S.A. 21-3449 and illegal use of weapons of mass destruction under K.S.A. 21-3450. See L. 2010, ch. 109, sec. 1. State v. Horn, 288 Kan. 690, 692-93, 206 P.3d 526 (2009).
Consequently, the application of Jessica’s Law and the preamendment attempt statute to the present case produces two different sentencing outcomes. Under Jessica’s Law, Malmstrom would receive a life sentence with a mandatory minimum of 25 years, unless the district court granted a departure under K.S.A. 21-4643(d). By contrast, the attempt statute lowers the off-grid felony to a nondrug severity level 1 crime, and Malmstrom would be sentenced on the non-drug sentencing grid. Any departure then would start from severity level 1 on the grid.
We begin our resolution of this statutory conflict with an advantage over the district court. After it sentenced Malmstrom in 2008, we addressed an almost identical issue in State v. Horn, 288 Kan. 690. In Horn, the defendant pleaded guilty to attempted aggravated criminal sodomy, an off-grid crime as defined in K.S.A. 21-3506(a)(1). Due to this particular crime, under K.S.A. 21-4643(a)(1) and (a)(1)(G) he received a life sentence with a mandatoiy minimum of 25 years.
On appeal, Horn argued that the statutorily required sentence in K.S.A. 21-4643 conflicted with the language in the attempt statute, K.S.A. 21-3301, where attempting to commit off-grid offenses is classified as a nondrug severity level 1 crime. We acknowledged that the legislature exempted terrorism and illegal use of weapons of mass destruction from the attempt statute but failed to extend a similar exemption to any crime listed in Jessica’s Law. As a result, the statutory language applicable in Horn prescribed conflicting treatment for the defendant’s criminal conduct. Invoking the rule of lenity, we resolved the statutory conflict in favor of Horn, vacated the sentence, and remanded for sentencing appropriate for a severity level 1 nondrug felony under the sentencing guidelines. In other words, the attempt statute controlled. 288 Kan. at 693-94.
Presumably in response to our decision in Horn, the 2010 legislature amended the attempt statute by expanding the exemptions. In its current form, the attempt statute does “not apply to a violation of attempting to commit the crime of... aggravated indecent liberties with a child . . . [or] aggravated criminal sodomy . . . .” K.S.A. 2010 Supp. 21-3301(c)(2)(E) and (F). As a corollary, the legislature also amended the underlying statutes defining the new exemptions to specify that K.S.A. 2010 Supp. 21-3301(d)(2) “shall not apply to a violation of attempting to commit” the respective crimes. See, e.g., K.S.A. 21-3504(d) (aggravated indecent liberties with a child); K.S.A. 21-3506(d) (aggravated criminal sodomy).
These amendments eliminate the conflict we faced in Horn. However, we presently face the same type of conflict because we analyze a defendant’s criminal conduct under the penalty parameters as of the date of the commission of the offense. See State v. Riley, 259 Kan. 774, 776, 915 P.2d 774 (1996) (“the fundamental rule is that a person convicted of a crime is given the sentence in effect when the crime was committed”). Malmstrom pled guilty to conduct occurring “on or between the 1st day of April, 2007, and the 31st day of January, 2008.” Therefore, we apply the version of each statute in effect when Malmstrom committed the offenses.
As in Horn, the attempt statute, K.S.A. 21-3301, and Jessica’s Law, K.S.A. 21-4643, prescribe different treatments for the underlying offense: Here, attempted aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3).
Also as in Horn, both the attempt statute and Jessica’s Law are plain and unambiguous. Accordingly, we follow our rationale and holding in Horn by invoking the rule of lenity to resolve the stat utoiy conflict in favor of Malmstrom. Because the attempt statute ranks the off-grid felony of attempted aggravated indecent liberties with a child as a nondrug severity level 1 felony, we must conclude the district court erred in initially treating the offense as off-grid with a statutory sentence of imprisonment “for life with a mandatory minimum term of imprisonment of not less than 25 years.” K.S.A. 21-4643(a). Simply put, there was no need for a judicial departure; the starting point is mandated by the attempt statute, K.S.A. 21-3301(c).
Per the rationale of Horn, we vacate Malmstrom’s sentence ordered under K.S.A. 21-4643 and remand for appropriate sentencing for a severity level 1 nondrug felony under the sentencing guidelines. See 288 Kan. at 693-94. On remand, the district court possesses the authority to depart from the gridbox sentence for that level of offense and Malmstrom’s criminal history.
Malmstrom also appears to suggest on appeal that the offense of attempted aggravated indecent liberties with a child is a severity level 5 felony. As a result, he appears to contend the district court should have simply sentenced per that level; in the alternative, the court should have departed from the life sentence and mandatory minimum of Jessica’s Law to that level for sentencing. As we understand the basics of his argument, it consists of two components. First, aggravated indecent liberties with a child is a severity level 3 offense under K.S.A. 21-3504(a)(3) and (c) (engaging in certain acts with child under 14 years of age). Second, the level 3 offense is then reduced two levels under K.S.A. 21-3301(c) because it was an attempt. That attempt statute provides in relevant part:
“An attempt to commit an off-grid felony shall be ranked at nondrug severity level 1. An attempt to commit any other nondrug felony shall be ranked on the nondrug scale at two severity levels below the appropriate level for the underlying or completed crime.” (Emphasis added.)
Malmstrom’s argument fails, not only for the reasons expressed earlier in this opinion, but also because K.S.A. 21-3504(a)(3) and (c) provide that the severity level 3 felony described there becomes an off-grid person felony when “the offender is 18 years of age or older.” Malmstrom was 50 years old at the time he attempted his crimes. As mentioned, requests for departure from the gridbox sentence resulting from the severity level 1 felony mandated by K.S.A. 21-3301(c) and Malmstrom’s criminal history will be addressed by the district court on remand.
Sentence vacated, and case remanded for resentencing.
Mike Keeley, District Judge, assigned. | [
-48,
-22,
-35,
63,
27,
97,
43,
89,
3,
-13,
108,
-45,
-27,
-51,
5,
123,
27,
101,
81,
97,
-63,
-73,
119,
-63,
-10,
-5,
-39,
-44,
-69,
79,
-4,
-99,
8,
112,
66,
117,
-90,
-118,
17,
-104,
-114,
7,
-120,
-15,
-46,
2,
42,
111,
16,
14,
49,
28,
-77,
43,
28,
-54,
-87,
40,
11,
61,
-56,
-47,
-93,
31,
90,
18,
-93,
1,
-74,
78,
80,
53,
-104,
57,
8,
-24,
115,
-122,
-126,
118,
111,
-85,
-107,
98,
98,
33,
61,
-58,
-7,
-127,
15,
11,
-83,
-29,
-40,
88,
99,
100,
-105,
-99,
52,
22,
13,
124,
103,
-116,
39,
108,
-128,
-57,
-76,
-111,
-51,
49,
-58,
-65,
-13,
-91,
32,
101,
-50,
-28,
76,
-9,
112,
-45,
-18,
-76
] |
The opinion of the court was delivered by
Johnson, J.:
Proceedings were commenced against D.D.M. under the Juvenile Offender Code, and the State filed a motion to prosecute him as an adult. The district court declined to order adult prosecution, finding that D.D.M. should be prosecuted under the extended juvenile jurisdiction procedure. The State appealed, and the Court of Appeals reversed the district court and remanded with directions to prosecute D.D.M. as an adult. We granted D.D.M.’s petition for review. Finding that the Court of Appeals improperly reweighed the evidence, we reverse and remand for the district court to proceed with extended jurisdiction juvenile prosecution.
Factual Overview
In November 2008, D.D.M., age 16, along with two of his peers, approached Roy Simpson and Damon Osborne, who were walking near a gas station parking lot; D.D.M. was riding a bicycle. One of the young men pointed a gun at Simpson and Osborne and told them to empty their pockets. The robbers collected Simpson’s wallet, checkbook, cellular telephone, glasses, and digital camera, as well as a hat and one dollar from Osborne. Before leaving, one of the robbers told Simpson that if he called the police, the victims would be killed.
When the police responded to the scene, Simpson described the three young men and their clothing. Officer Demetric Mariner left in search of the suspects and located two young men at the side of a Wendy’s restaurant near the gasoline station. When the officer shined a search light on the suspects, they fled afoot. Officer Mariner caught, detained, and later arrested D.D.M., albeit he did not possess any of the stolen property or a weapon. Meanwhile, Officer Brandon Manee apprehended and caught the second young man, who was in possession of Simpson’s wallet and checkbook. A cellphone and paintball gun were recovered near the location where Officer Mariner originally encountered the two suspects. A bicycle was located near where the victims were robbed.
A juvenile offender proceeding was commenced against D.D.M. for having committed acts which would have been felonies if committed by an adult, specifically, one count of aggravated robbery and two counts of criminal threat. The State then filed a motion to prosecute D.D.M. as an adult, alleging that he was presumed to be an adult under K.S.A. 2010 Supp. 38-2347(a)(2). The hearing on that motion was to double as a prehminary hearing in the event adult prosecution was authorized. See K.S.A. 2010 Supp. 38-2347(b) (permitting court to make prehminary hearing findings at hearing on motion to prosecute as an adult).
At the hearing, the State called Officer Mariner, Officer Manee, and Simpson to testify, and the district court considered the court files relating to D.D.M.’s prior juvenile proceedings. D.D.M. did not call any witnesses. Further, D.D.M.’s attorney conceded the existence of the facts necessary to establish the presumption of adult prosecution under K.S.A. 2010 Supp. 38-2347(a)(2), i.e., D.D.M. had a prior felony adjudication, he was 16 years old, and he was currently charged with a severity level 3 offense. Instead, the defense focused on the facts which rebutted the presumption of adult prosecution and argued that the district court should utilize the extended juvenile jurisdiction procedure.
All the hearing participants agreed that K.S.A. 2010 Supp. 38-2347(e) required the district court to consider the following eight statutory factors:
“(1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult or designating tire proceeding as an extended jurisdiction juvenile prosecution;
“(2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;
“(3) whether the offense was against a person or against property. Greater weight shall be given to offenses against persons, especially if personal injury resulted;
“(4) the number of alleged offenses unadjudicated and pending against the juvenile;
“(5) the previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender under this code or the Kansas juvenile justice code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;
“(6) the sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living or desire to be treated as an adult;
“(7) whether there are facilities or programs available to the court which are likely to rehabilitate the juvenile prior to the expiration of the court’s jurisdiction under this code; and
“(8) whether the interests of the juvenile or of the community would be better served by criminal prosecution or extended jurisdiction juvenile prosecution.”
Pointing to the first three factors, the State argued that the current offense was a serious person felony which had been committed in an aggressive, violent, premeditated, and willful manner. Further, the State argued that factor (5) favored adult prosecution because the juvenile offender resources had been exhausted on D.D.M. in his prior proceedings, albeit the State conceded that. the court could exercise juvenile jurisdiction over D.D.M. until he was 22% years old.
D.D.M.’s counsel countered that an analysis of the eight factors should lead the court to conclude that extended juvenile jurisdiction was warranted. The defense pointed out that the weapon used was merely a paintball gun. Further, because D.D.M. had previously been in a youth correctional facility for less than a year, he had not fully utilized its resources and rehabilitation in the juvenile system remained a viable option.
After taking the matter under advisement, the district court issued a memorandum decision which provided, in part:
“18. There is a presumption in this case that the respondent should be considered an adult.
“19. The offenses that the Respondent is charged with are level 3 and level 9 person felonies. While very serious offenses they do not arise to nongrid felonies or level 1 or 2 person felonies. Further, the community may be protected without adult prosecution as an extended juvenile prosecution could result in the juvenile correctional facility for more than 6 years.
“20. The alleged offenses do not seem to have been committed particularly aggressively. The court does recognize that the threat of violence was present in all 3 charges but acts of violence did not occur.
“21. The alleged offenses were against persons not property.
“22. Except for this case there are no unadjudicated alleged offenses pending against the Respondent.
“23. The Respondent has been previously adjudicated on 2 occasions to be an offender but neither case involved allegations that were against persons.
“24. The Respondent may not be as mature as other juveniles his age as evidenced by the crime being committed by juveniles who were on bicycles. Most 16 year olds have driver’s licenses allowing them to drive cars. The court does recognize that the Respondent has been convicted of Driving Under the Influence of Alcohol or Drugs. This may explain why bicycles were used in the commission [sic] the alleged offense.
“25. The Respondent is more likely to be rehabilitated in the juvenile system than in the adult correctional system. The juvenile system will have 6 years or more to rehabilitate the Respondent if he is found to have committed the alleged offenses.
“26. The interests of the Respondent and community will be better served if the juvenile is prosecuted under the extended juvenile prosecution statutes'.
“27. The court finds that the Respondent has [met] his burden of proof in overcoming the presumption that he be declared an adult for prosecution in this case. The Respondent shall be prosecuted under the extended jurisdiction juvenile prosecution statutes.”
The State filed an interlocutory appeal. The Court of Appeals opined that the evidence was insufficient to support the district court’s decision to prosecute D.D.M. under the extended jurisdiction juvenile procedure. It reversed and remanded the case to the district court with directions to prosecute D.D.M. as an adult. We granted D.D.M.’s petition for review, in which he asserts: (1) the juvenile statutes do not authorize an appeal of an order for extended jurisdiction juvenile prosecution; (2) the Court of Appeals erred in finding an absence of substantial competent evidence to support the district court’s ruling; and (3) the appropriate remedy for a finding that D.D.M. did not effectively rebut the presumption of adult prosecution was to remand for an evaluation of the propriety of extended jurisdiction juvenile prosecution under K.S.A. 2010 Supp. 38-2347(f)(2), rather than the Court of Appeal’s disposition of ordering the district court to prosecute D.D.M. as an adult.
Court of Appeals Jurisdiction
A. Standard of Review
Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009).
B. Analysis
D.D.M. first contends that the Court of Appeals did not have jurisdiction to consider the State’s appeal of the district court’s order of extended jurisdiction juvenile prosecution. He acknowledges that K.S.A. 2010 Supp. 38-2381(a)(2) specifically permits the State to appeal from an order “denying authorization to prosecute a juvenile as an adult.” The crux of his argument is that an extended juvenile jurisdiction proceeding is a hybrid procedure which includes elements of both adult and juvenile proceedings. Therefore, he argues that the district court’s order to employ the hybrid procedure was not an outright denial of the State’s motion to prosecute D.D.M. as an adult.
For support, D.D.M. cites to the dissent in In re L.M., 286 Kan 460, 485, 186 P.3d 164 (2008), which discussed the character of an extended jurisdiction juvenile proceeding:
“Extended jurisdiction juvenile prosecution became effective in 1997 (see L. 1996, ch. 229, sec. 67), and is a mechanism whereby serious or repeat juvenile offenders who might otherwise have been waived up to adult court may remain in the juvenile sentencing system. In an extendedjurisdictionjuvenileprosecution, the court imposes both a juvenile and an adult sentence. The adult sentence is stayed as long as the juvenile complies with and completes the conditions of the juvenile sentence. If however, the juvenile violates the conditions of the juvenile sentence, the juvenile sentence is revoked, the adult sentence is imposed, and the juvenile court transfers jurisdiction of the case to adult court.” (Emphasis added.) (McFarland, C.J., dissenting.)
The Court of Appeals rejected D.D.M.’s logic. The panel noted that the district court commented that it had two options: order adult prosecution or order extended jurisdiction juvenile prose cution. Accordingly, the election of the extended jurisdiction juvenile prosecution option was an effective denial of the State’s request for the adult prosecution option. Although the district court was incorrect in stating that it had only two options, we agree that the order for extended jurisdiction juvenile prosecution effected a denial of the State’s motion for adult prosecution.
As noted in the In re L.M. dissent language upon which D.D.M. relies, the order for extended jurisdiction juvenile prosecution keeps the case under the jurisdiction of the juvenile court for adjudication and for enforcement of a juvenile sentence. Only if the juvenile fails to successfully complete the juvenile sentence will the case be transferred to the jurisdiction of the adult court. Even then, the adult court’s jurisdiction is limited to the imposition and enforcement of the adult sentence; the juvenile will not be prosecuted in adult court. 286 Kan. at 485.
Moreover, the ordering of extended jurisdiction juvenile prosecution when adult prosecution has been requested is authorized under K.S.A. 2010 Supp. 38-2347(f)(3). That provision includes the condition precedent that “prosecution as an adult is not authorized.” K.S.A. 2010 Supp. 38-2347(f)(3). Therefore, the order for extended jurisdiction juvenile prosecution must necessarily include a denial of the request for adult prosecution.
Accordingly, the relief the State sought, i.e., the immediate transfer of jurisdiction to the adult court for prosecution, was effectively denied by the court’s order for extended jurisdiction juvenile prosecution. The provisions of K.S.A. 2010 Supp. 38-2381(a)(2) provided the Court of Appeals with explicit statutoiy jurisdiction to review the district court’s ruling on the State’s motion to prosecute D.D.M. as an adult.
Statutory Provisions
A. Standard of Review
The interpretation of a statute is a question of law over which an appellate court exercises unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
B. Analysis
Before considering the sufficiency of the evidence in this case, we pause to review the applicable statute to ascertain the determinations the district court was required to make in order to designate the proceedings as an extended jurisdiction juvenile prosecution. The issues involved here are governed by K.S.A. 2010 Supp. 38-2347.
K.S.A. 2010 Supp. 38-2347(a)(l) provides that the prosecutor “may file a motion requesting that the court authorize prosecution of the juvenile as an adult under the applicable criminal statute,” and that “[t]he juvenile shall be presumed to be a juvenile unless good cause is shown to prosecute the juvenile as an adult.” However, K.S.A. 2010 Supp. 38-2347(a)(2) lists certain circumstances under which the juvenile “shall be presumed to be an adult.” All agree that the presumption applies in this case.
The statute also governs the implementation of the procedure referred to as an extended jurisdiction juvenile prosecution. K.S.A. 2010 Supp. 38-2347(a)(3) permits the prosecutor to file a motion requesting the court to designate proceedings as an extended jurisdiction juvenile prosecution. Subsection (a)(4) lists the same circumstances set forth in the adult presumption provision of (a)(2) and provides that if those circumstances exist, “the burden is on the juvenile to rebut the designation of an extended jurisdiction juvenile prosecution by a preponderance of the evidence.” K.S.A. 2010 Supp. 38-2347(a)(4).
K.S.A. 2010 Supp. 38-2347(e) sets forth the eight factors quoted earlier in this opinion. The court is directed to consider each of those factors when determining either to authorize adult prosecution or to designate the proceeding as an extended jurisdiction juvenile prosecution. The provision clarifies that “[t]he insufficiency of evidence pertaining to any one or more of the factors listed in this subsection, in and of itself, shall not be determinative of the issue.” K.S.A. 2010 Supp. 38-2347(e). Further, the court is specifically permitted to consider “written reports and other materials relating to the juvenile’s mental, physical, educational and social history.” K.S.A. 2010 Supp. 38-2347(e).
The first three subsections of K.S.A. 2010 Supp. 38-2347(f) address the dispositional options available to the district court. Those provisions are:
“(f)(1) The court may authorize prosecution as an adult upon completion of the hearing if the court finds from a preponderance of the evidence that the alleged juvenile offender should be prosecuted as an adult for the offense charged. In that case, the court shall direct the alleged juvenile offender be prosecuted under the applicable criminal statute and that the proceedings filed under this code be dismissed.
“(2) The court may designate the proceeding as an extended jurisdiction juvenile prosecution upon completion of the hearing if the juvenile has failed to rebut the presumption or the court finds from a preponderance of the evidence that the juvenile should be prosecuted under an extended jurisdiction juvenile prosecution.
“(3) After a proceeding in which prosecution as an adult is requested pursuant to subsection (a)(2), and prosecution as an adult is not authorized, the court may designate the proceedings to be an extended jurisdiction juvenile prosecution.” K.S.A. 2010 Supp. 38-2347(f).
What is conspicuous in these dispositional provisions is the use of the word, “may,” connoting that the district court is not required to order either adult' prosecution or extended jurisdiction juvenile prosecution, i.e., such rulings are discretionary. To the extent that the district court suggested that it had only two options — adult prosecution or extended jurisdiction juvenile prosecution — it was incorrect. Subsection (f)(3) clearly permits the district court to designate the proceedings as an extended jurisdiction juvenile prosecution upon a denial of a motion for adult prosecution, but such a designation is not required.
Additionally, the findings which are required for the court to exercise its discretion are curiously vague. In subsection (f)(1), the court may authorize adult prosecution if it finds from a preponderance of the evidence that the juvenile “should be prosecuted as an adult.” K.S.A. 2010 Supp. 38-2347. That provision says nothing about the juvenile’s failure to rebut the presumption of subsection (a)(2). However, we should not isolate that vague language. Rather, we must read it in conjunction with the presumption set forth in subsection (a)(2) and the mandatory factors set forth in subsection (e). See State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 1115 (2008) (when construing statutes to determine legislative intent, appellate court must consider the various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony, if possible). Therefore, a district court’s finding that a juvenile “should” be prosecuted as an adult must necessarily involve an analysis of the statutory factors in light of the presumption.
In contrast, subsection (f)(2) says that the court may designate the proceeding as an extended jurisdiction juvenile proceeding under two circumstances: (1) if the juvenile failed to rebut the presumption; or (2) the court finds from a preponderance of the evidence that the “juvenile should be prosecuted under an extended jurisdiction juvenile prosecution.” K.S.A. 2010 Supp. 38-2347. However, the provision does not explicitly say whether it is referring to the presumption of adult prosecution set forth in subsection (a)(2) or to the shifting of the burden to rebut extended jurisdiction juvenile prosecution set forth in subsection (a)(4).
Again, we must read all the provisions together. Subsection (f)(3) specifically addresses the circumstance where a motion for adult prosecution has been denied and the court is considering other alternatives. Therefore, the legislature must have intended subsection (f)(2) to apply when the prosecutor files a motion for extended jurisdiction juvenile prosecution under subsection (a)(3) without also seeking adult prosecution. Accordingly, to be meaningful, the presumption to which the legislature referred in subsection (f)(2) must be the presumption of extended jurisdiction juvenile prosecution described in subsection (a)(4). Given that the State’s motion in this case requested adult prosecution, rather than extended jurisdiction juvenile prosecution, the provisions of K.S.A. 2010 Supp. 38-2347(f)(2) would not be applicable.
Substantial Competent Evidence to Support the District Court’s Ruling
A. Standard of Review
Given our analysis of K.S.A. 2010 Supp. 38-2347, it may be necessaiy to clarify the standard of review we apply when considering a district court’s determination of whether to prosecute a juvenile as an adult. Previously, we have said:
“An appellate court reviews the district court’s decision to allow the State to prosecute a juvenile as an adult to determine whether the decision is supported by substantial evidence. State v. Mays, 277 Kan. 359, 363, 85 P.3d 1208 (2004). ‘ “Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.” ’ 277 Kan. at 363 (quoting [State v. Jones, 273 Kan. 756, Syl. ¶ 2, 47 P.3d 783, cert. denied 537 U.S. 980 (2002)]).” State v. Nguyen, 285 Kan. 418, 431-32, 172 P.3d 1165 (2007).
The reviewing court “ ‘ “ ‘accepts as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the trial judge.’ ” Taylor v. State, 252 Kan. 98, 104, 843 P.2d 682 (1992) (quoting Short v. Wise, 239 Kan. 171, 178, 718 P.2d 604 [1986].)’ ” In re J.D.J., 266 Kan. 211, 217, 967 P.2d 751 (1998). “It is not for this court to reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses.” State v. Medrano, 271 Kan. 504, 507, 23 P.3d 836 (2001).
While the district court’s factual findings must be supported by substantial competent evidence, we must give deference to the court’s evaluation or characterization of those facts. K.S.A. 2010 Supp. 38-2347(e) directs the district court to consider the eight statutory factors and in doing so the court is not constrained by the insufficiency of evidence to support one or more of the factors. Such a directive necessarily connotes the exercise of discretion in evaluating and weighing the factors to determine whether the juvenile “should” be prosecuted as an adult. Accordingly, the district court’s assessment of the eight statutory factors which is based upon proved facts should be reviewed for an abuse of discretion.
B. Analysis
The Court of Appeals appears to have been influenced by the fact that D.D.M. did not put on any direct evidence at the motion hearing. As the State conceded at oral argument, the district court is certainly permitted to consider evidence which is elicited through the cross-examination of the State’s witnesses. Further, the district court is statutorily permitted to consider “written reports and other materials relating to the juvenile’s mental, physical, educational and social history.” K.S.A. 2010 Supp. 39-2347(e). Here, the court had D.D.M.’s prior juvenile files, records, and reports, in addition to testimony describing the circumstances of the current offense.
Considering the evidence before it, the district court reviewed the requisite statutory factors. Under the first factor — seriousness of the crime and protection of the community — the court noted that D.D.M.’s most serious charge was a level 3 person felony, but not an off-grid, level 1 or level 2 felony. Further, the court found the community could be protected without adult prosecution because the extended jurisdiction juvenile prosecution could result in D.D.M. being held in a juvenile correctional facility for more than 6 years. The facts involved in the court’s assessment of this factor are undisputed.
The second factor is whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner. The district court recognized the presence of the threat of violence in the present crime, but opined that the offenses were not committed in a particularly aggressive manner and that no acts of violence actually occurred. The court had a first-hand description of the events from one of the victims as a basis for its assessment of this factor.
Next, the court found D.D.M.’s current offense was against a person, not property, which is to be given greater weight under the statute. However, there is an inference that no personal injury resulted, given the court’s finding that there were no acts of violence.
Under the fourth factor, the court found that D.D.M. had no unadjudicated alleged offenses pending. However, under the fifth factor, D.D.M. had two prior juvenile adjudications, albeit neither case involved offenses against persons.
When considering D.D.M.’s sophistication or maturity under the sixth factor, the district court noted that the crime was committed on a bicycle and that most 16-year-olds would be driving a car. However, the court also noted that D.D.M.’s prior conviction for driving under the influence might have explained the use of bicycle. D.D.M. contends that the district court’s assessment that he “may not be as mature as other juveniles” must be given deference because the court was in a position to observe him. That inference would be more compelling if the court had not specifically ascribed its assessment of immaturity to the use of the bicycle. Nevertheless, K.S.A. 2010 Supp. 38-2347(e) specifically provides that the insufficiency of evidence pertaining to any one or more of the factors is not determinative.
The seventh factor requires the district court to assess whether there are facilities or programs available which are likely to rehabilitate the juvenile before the juvenile court loses jurisdiction. Here, the district court specifically found that D.D.M. “is more likely to be rehabilitated in the juvenile system than in the adult correctional system.” The court noted that the juvenile system will have jurisdiction over D.D.M. for 6 or more years to rehabilitate him. In response, the State argues that D.D.M.’s prior stint at a juvenile correctional facility did not effect rehabilitation and that it is time for D.D.M. to enter the adult system. Certainly, reasonable people may differ in their opinion as to the relative chances of rehabilitative success in the juvenile and adult correctional systems. However, we decline to substitute our judgment for that of the district judge.
The final factor is an assessment of whether the interests of the juvenile and of the community would be better served by criminal prosecution or extended jurisdiction juvenile prosecution. The district court declared that “[t]he interests of [D.D.M.] and community will be better served if the juvenile is prosecuted under the extended juvenile prosecution statutes.” Based on its assessments of the factors, the district court found that D.D.M. had met his burden to overcome the presumption of adult prosecution.
The Court of Appeals acknowledged that the district court had addressed the statutory factors of 38-2347(e), but found that the court’s decision to try D.D.M. as a juvenile was made solely on the basis of his juvenile record. The panel then pointed out certain facts that it had apparently gleaned from that record: D.D.M. had been in out-of-home placement since 2004 when his juvenile his tory began; he stole from a store when he was 12 years old; he has been using marijuana since he was 11 years old; and he stole a car in 2007. Based on those observations, the Court of Appeals declared: “There is no substantial competent evidence to support the district court’s decision to prosecute D.D.M. under the extended jurisdiction juvenile prosecution statutes.” In re D.D.M., No. 101, 868, 2009 WL 3428790, at *4 (Kan. App. 2009) (unpublished opinion).
First, the district court’s findings belie the notion that its decision was based solely on the juvenile record. Nevertheless, we see nothing which would preclude a district court from relying solely on the files, records, and reports in prior adjudications, if they contain substantial competent evidence to allow the district court to assess the statutory factors.
More importantly, however, it is not the proper function of a reviewing court to look for facts which would support a finding contrary to the decision reached by the district court. Rather, as noted, the reviewing court must accept as true the evidence and accompanying inferences “ which support or tend to support the findings of the trial judge.’ ” (Emphasis added.) Taylor, 252 Kan. at 104. Further, it is inappropriate for a reviewing court to “substitute its evaluation of the evidence for that of the trial court.” Medrano, 271 Kan. 504, Syl. ¶ 1.
Applying the appropriate review standard, we find that the district court’s factual findings were supported by the evidence and that the district court did not abuse its discretion in assessing the statutoiy factors. The Court of Appeals is reversed, and the district court’s order for extended jurisdiction juvenile prosecution is affirmed. Given our decision to affirm the extended jurisdiction juvenile prosecution, we need not address whether the Court of Appeals erred in directing the district court to order adult prosecution.
The Court of Appeals is reversed; the district court is affirmed.
Merlin G. Wheeler, District Judge, assigned. | [
-80,
-18,
-36,
-66,
59,
96,
-82,
-68,
3,
-13,
111,
-77,
37,
67,
21,
121,
-37,
125,
84,
-7,
-110,
-73,
7,
-29,
-6,
-13,
-5,
-47,
-109,
77,
108,
-35,
77,
112,
-122,
93,
70,
24,
-27,
86,
-122,
-127,
-72,
-61,
83,
74,
-92,
104,
0,
10,
-11,
-100,
-10,
43,
-111,
-22,
105,
45,
-55,
-75,
-39,
115,
-21,
29,
-49,
20,
-93,
48,
-101,
3,
-8,
60,
-104,
57,
0,
-24,
-13,
-128,
-58,
116,
111,
-101,
-116,
98,
98,
4,
-23,
-50,
-67,
-120,
63,
-5,
-97,
-89,
-104,
121,
8,
100,
-105,
-99,
116,
53,
-118,
-20,
87,
-115,
23,
108,
7,
-49,
36,
-109,
-19,
49,
14,
-5,
-53,
-91,
48,
53,
-58,
-30,
84,
84,
116,
-45,
-98,
-47
] |
The opinion of the court was delivered by
Biles, J.:
Jeffeiy Dale Nelson appeals his convictions of premeditated first-degree murder, burglary, and three counts of forgery. These crimes arose from the death of Nelson’s stepfather, Stanley Swartz, who Nelson admitted striking repeatedly in the head with a baseball bat. Nelson claims four errors: (1) The district court failed to give an imperfect self-defense jury instruction; (2) the instructions on first-degree murder were improper because they lessened the State’s burden of proof; (3) the district court failed to comply with K.S.A. 60-455 in admitting prior crimes evidence; and (4) the district court used the wrong standard to determine aggravating circumstances when sentencing Nelson to a hard 50 prison term for his first-degree murder conviction. As explained below, we affirm his convictions. We reverse and remand with directions for resentencing on the first-degree murder conviction.
Factual and Procedural Background
The relevant events occurred over a 3-day time span. On August 24, 2007, Nelson went to the house of his stepfather Swartz, just as Swartz was getting ready to leave for work. Swartz indicated Nelson was not welcome and waited for Nelson to leave before going to work. Nelson returned while Swartz was at work and broke into the garage. Nelson used a ladder to crawl through an attic space connecting the garage to the house because the garage did not have direct access to the house. Once inside the attic space, the ceiling buckled and Nelson fell through, creating a hole. When Swartz returned home after work, Nelson was gone. Swartz reported the break-in to police and said his checkbook was missing.
At 9:38 p.m. that same day, Nelson used an ATM to deposit a $5,000 forged check from Swartz’ account. Nelson then picked up his friend, Keith Hewitt. They drove to Wal-Mart, and Nelson bought a baseball bat. As they were leaving the parking lot, Nelson asked Hewitt if he would help him beat up Swartz. Hewitt testified at trial that he talked Nelson out of this. The two then went to a club. Nelson took Hewitt home at 2 a.m., but Nelson returned at 3 a.m. and offered Hewitt $500 to help him “take care of’ Swartz. Hewitt refused.
The next day, April 25, 2007, Nelson and Swartz had a chance encounter at Wal-Mart that became heated, but not physical. Sometime later that day Nelson deposited a $100 forged check from Swartz’ account into his friend Misty Sauder’s account. At around 10 p.m. Nelson asked Amber Moore, a girl he was dating, if she wanted to watch a movie. Moore picked Nelson up at his grandparents’ house; he asked her if she would think poorly of him if he beat someone up; and then he asked her to drive him by Swartz’ employer to see if his truck was in the parking lot. It was. Nelson then asked Moore to drive him back to his grandparents’ house where he retrieved the bat. He told Moore he needed the bat for protection because he was going to beat up Swartz.
Moore and Nelson drove by Swartz’ workplace again to make sure Swartz’ truck was still there, and then Moore dropped Nelson off at Swartz’ house. He told Moore to tell him when Swartz was driving home. Swartz returned home around 11 p.m. Moore believed Nelson was hiding in the bushes. She drove around until 1 a.m., when she told Nelson she was going home. She testified Nelson told her he “could not do it,” and they went back to Moore’s house. At around 2:30 a.m., Nelson borrowed Moore’s car, took the baseball bat, and said he was returning to Swartz’ home.
Nelson disputes what happened next. The State contends Nelson entered the home, discovered Swartz sleeping in his bed, and hit him on the back of the head while he slept. The coroner testified Swartz’ death was caused by a blunt force trauma to the head, and there were no defensive wounds. A detective testified there was no evidence of a struggle in the home. Nelson’s defense theory was that Swartz let him into his house, they fought, Nelson tried to leave, and Swartz pulled him back into a fight. Finally, Nelson grabbed the bat, Swartz reached for it, and Nelson hit him with it. This defense theory is based on varying statements Nelson gave the police. Nelson did not testify at trial.
Initially, Nelson told a detective he got into a fight with Swartz between 11:30 and 11:45 p.m. on April 25. He said they fought over the bat and he hit Swartz with it. He said Swartz was fine when he left. Nelson later added greater and sometimes conflicting details about the physical altercation. This portion of the interview is more difficult to follow, but begins with Nelson saying that he went into a room in Swartz’ house and found the bat. Swartz was standing in the room’s doorway. Nelson chopped at Swartz with the bat, and Swartz backed into his bedroom. Swartz antagonized Nelson by saying he had better hit him hard, and Nelson told Swartz not to give him an excuse. Nelson then approached Swartz, and Swartz reached for the bat, eventually catching it. Nelson pushed Swartz, and he “finally” hit Swartz several times with the bat. He said Swartz ended up on the bed, lying on his back and side. Nelson told the detective he went to Swartz’ house to “fucking end the animosity and all the bullshit and all the shit [Swartz] was doing.”
Later in the same interview, after additional prodding from the detective, Nelson said he was going to tell the truth about what happened. Nelson admitted he brought the bat with him and did not find it in a room in Swartz’ house. At some point, Nelson told a detective it was kind of hard to walk around the comer, look in the bathroom, and close the door while holding the bat without it being obvious. Then Nelson said Swartz asked if he was hiding something, and Nelson tried to “play it off like Í wasn’t doing anything.” Nelson grabbed the door handle and pulled it. Swartz pushed him twice and slapped him on the head. Then Nelson said he pushed him back, pulled out the bat, and hit him. Nelson continually stated there was no blood when he left.
Moore testified at trial that Nelson returned to her house around 6:30 a.m. that morning, April 26. She said Nelson was pale and told her he thought he killed Swartz. Later that day, Swartz was discovered on his couch by a coworker when Swartz did not show up for work. Swartz was alive but unresponsive. There were pools of blood on Swartz’ bed, pillow, and in die master bedroom; blood was found going from the bedroom, down the hallway, and in the bathroom; and there were sheets that trailed blood through the house to the couch.
Also that day, Nelson deposited a $400 forged check from Swartz’ account. Nelson then dropped off an apartment rental application and test drove a BMW at a dealership. Nelson told Moore he was going to sell Swartz’ vehicles for a down payment. While Nelson was occupied with the car, Moore received a phone call that Swartz had been taken to the hospital, and everyone suspected Nelson beat him. Moore and Nelson left the dealership. Moore testified that she and Nelson retrieved the clothes Nelson was wearing at the time he hit Swartz with the bat, got the bat out of a dumpster where Nelson had stashed it, drove to the country, and discarded the items. Moore later led police back to retrieve these items.
On May 19, 2007, Swartz died from complications arising from the head injuries. Nelson was charged with premeditated first-degree murder in case No. 07CR86. He also was charged with burglary and three counts of forgery for the checks drawn on Swartz’ account in the amounts of $5,000, $100, and $400 in case No. 07CR125. The cases were consolidated for trial.
Nelson was convicted of all offenses. He was sentenced to life in prison with a mandatory minimum of 50 years (hard 50) under K.S.A. 21-4635 for the murder conviction. The district court found three aggravating circumstances under K.S.A. 21-4636(e), (f), and (h) justified this sentence: (1) The defendant committed the crime in order to avoid or prevent a lawful arrest or prosecution; (2) the defendant committed the crime in an especially heinous, atrocious, or cruel manner; and (3) the victim was killed while engaging in, or because of, the victim’s prospective performance of the victim’s duties as a witness in a criminal proceeding. The burglary and forgery sentences were ordered to run consecutive to the murder sentence, but concurrent with each other, for an additional term of 32 months’ imprisonment. Nelson filed a timely notice of appeal. Jurisdiction is proper under K.S.A. 22-3601(b)(l) (off-grid crime; life sentence).
Issue One: Imperfect Self-Defense Instruction
At trial, Nelson requested instructions on self-defense and imperfect self-defense as alternate means of voluntary manslaughter. The district court reluctantly granted the self-defense instruction, but the court noted it was a close call and wanted to err, if at all, on the defendant’s side. It denied the imperfect self-defense instruction, holding the evidence did not support the instruction.
Nelson argues he was entitled to the imperfect self-defense instruction because a reasonable jury could have concluded Nelson and Swartz engaged in a fist fight and Nelson believed it was necessary to use the baseball bat, but the jury could have concluded this belief was unreasonable. Nelson contends the district court’s decision to issue the self-defense instruction supports this conclusion. The State argues the district court correctly ruled the evidence did not support an instruction on imperfect self-defense. In the alternative, the State argues any error was not reversible because the jury convicted Nelson of first-degree murder and, under the “skip rule,” the failure to issue a lesser instruction was not reversible error.
District courts have a duty to issue instructions on any lesser included offense established by the evidence, even if the evidence is weak or inconclusive. See K.S.A. 22-3414(3), which requires instructions “where there is some evidence which would reasonably justify a conviction of some lesser included crime . . . .” When reviewing the district court’s refusal to issue an instruction, this court views the evidence in a light most favorable to the party requesting the instruction. State v. Moore, 287 Kan. 121, 130, 194 P.3d 18 (2008).
Nelson was charged with first degree murder under K.S.A. 21-3401(a), which prohibits the intentional and premeditated killing of a human being. Voluntary manslaughter is the intentional killing of a human being committed. . . (b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto.” K.S.A. 21-3403(b).
Of those statutes listed in the definition of voluntary manslaughter, only K.S.A. 21-3211 could be applicable under the facts in this case. It states: “(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person . . . against such other s imminent use of unlawful force.”
Under this statutoiy scheme, imperfect self-defense is a lesser degree of homicide, not a defense to criminal liability. Moore, 287 Kan. at 131. To justify an imperfect self-defense instruction, the evidence would need to show Nelson had an honest belief that deadly force was necessary to defend himself, but the belief was objectively unreasonable. Nelson did not testify, but he argues the evidence establishes this, citing the verbal altercation occurring at Wal-Mart earlier that day. Nelson also recites portions of his police interview in which he accused Swartz of delivering the initial push and preventing Nelson from leaving Swartz’ home. Finally, Nelson relies upon the district court’s decision to issue the self-defense instruction as support for his argument that the record supports the imperfect self-defense instruction.
But the evidence does not establish an honest belief that deadly force was justified. Nelson clearly did not fear for his life based upon the verbal altercation at Wal-Mart earlier that day because Nelson went to Swartz’ house several hours later. He was the aggressor. And even accepting as true Nelson’s statements that Swartz was the aggressor once Nelson was in the home, there is no evidence Nelson had an honest belief deadly force was necessary given the type of physical altercation Nelson described. Viewed in a light most favorable to Nelson, the evidence was that Swartz and Nelson got into a physical altercation and Swartz pushed, hit, and brought his heel down on Nelson’s head during this fight. And under any version of Nelson’s story, the evidence shows Nelson introduced the bat into the fight — Nelson “chopped” at Swartz with the bat while Swartz tried to get the bat from him. Nelson told the detective:
“I walked up ... on him, put my hand out. . . , [and] he reached for the bat. . . . ‘And then [Swartz] lunged for it and caught the end of the bat. I had it about half way. I didn’t have a really good grip on it but I had a better grip than [Swartz] did and I was trying to turn it and that’s when I kept pushing him like this’ . . . with [my] left hand.”
Under these facts, a reasonable jury could not have concluded Nelson had an honest belief that Swartz was threatening imminent use of unlawful force justifying Nelson to employ deadly force. The district court’s decision to issue the self-defense instruction was suspect under these facts also, but it is not relevant to whether the facts support imperfect self-defense. For these reasons, we find Nelson was not entitled to an imperfect self-defense instruction. Given this finding, we need not reach the State’s alternative argument, i.e., that the “skip rule” should apply to excuse any error in refusing an imperfect self-defense instruction. See Moore, 287 Kan. at 133.
Issue Two: The First-Degree Murder Instructions •
The district court issued three instructions related to first-degree murder: (1) PIK Crim. 3d 56.01, which contained the elements of first-degree murder; (2) PIK Crim. 3d 56.04, which as issued contained tire definitions of the terms “premeditation,” “intentionally,” and “heat of passion”; and (3) PIK Crim. 3d 54.01, which allows a juiy to infer that a defendant intends the consequences of his or her voluntary acts.
As orally issued to the jury, the PIK Crim. 3d 54.01 based instruction stated:
“Ordinarily, a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with the other evidence in tire case. You must [sic] accept or reject it in determining whether the State has met it’s burden to prove the required criminal intent of the defendant. The burden never shifts to the defendant.”
We note parenthetically that the PIK Crim. 3d 54.01 instruction and the written instruction actually submitted to the jury state: “You may accept or reject [the inference]. ...” (Emphasis added.) Nelson makes no claim this variation was error and actually refers to the PIK Crim. 3d 54.01 language in making his arguments.
But Nelson does argue PIK Crim. 3d 54.01 impermissibly lessened the State’s burden to prove the intent and premeditation elements. Specifically, he argues the instruction “tells the jury to infer that Mr. Nelson intended to kill Mr. Swartz simply because he committed an act that led to his death.” Nelson concedes PIK Crim. 3d 56.01 and PIK Crim. 3d 56.04 correctly instructed the jury regarding whether Nelson intended to kill Swartz willfully purposely, and not accidentally. He also admits PIK Crim. 3d 54.01 has been found constitutional but argues this instruction impermissibly alters the correct instructions. Similar arguments were made in State v. Ellmaker, 289 Kan. 1132, 1138-42, 221 P.3d 1105(2009), and this court held they lack merit. 289 Kan. at 1142.
Standard of Review
Nelson objected at trial to PIK Crim. 3d 54.01, arguing intent already was defined in the homicide definitions. He did not argue the instruction affected the premeditation element. As such, these arguments are reviewed under different standards. When a defendant objects to an instruction at trial, appellate courts examine the instruction to determine if it properly and fairly states the law as applied to the case and could not have reasonably misled the jury. Nelson’s intent argument is reviewed under this standard. But Nelson did not challenge this instruction’s impact on premeditation at trial. A clearly erroneous standard is applied when the trial objection to a juiy instruction differs from the argument presented on appeal. See K.S.A. 22-3414(3). To reverse under the clearly erroneous standard, the appellate court must be firmly convinced the jury would have rendered a different verdict absent the error. Ellmaker; 289 Kan. at 1139. But under either standard, appellate courts consider the instructions as a whole and will not focus on only one instruction. State v. Scott, 286 Kan. 54, 75, 183 P.3d 801 (2008); see State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009).
Analysis
The defendant in Ellmaker presented similar arguments based upon similar instructions. In Ellmaker this court did not reach the substance of the intent argument because it contradicted the defendant’s trial arguments and his requested jury instructions undercut it. 289 Kan. at 1140. But the Ellmaker court did hold that PIK Crim. 3d 54.01 did not impermissibly lessen the burden to prove premeditation. 289 Kan. at 1142. The court’s analysis presented two reasons to uphold the instruction, and the second justification also applies to Nelson’s intent argument.
By its own language, the inference instruction only pertains to the intent element. It states the jury may infer Nelson intended the usual consequences of his actions. Since this instruction has no bearing on the premeditation element and the jury instructions clearly advised the jury that intent and premeditation were separate elements, this court held in Ellmaker that the instruction did not lessen the State’s burden to prove premeditation. 289 Kan. at 1143.
The instructions issued in Nelson’s case demonstrate the elements of first-degree murder are separate and that the State bears the burden of proof. First-degree murder is defined in PIK Crim. 3d 56.01, and Instruction No. 2 stated:
“The defendant is charged with the crime of murder in the first degree. The defendant pleads not guilty. To establish this charge, each of the following claims must be proved:
“1. That the defendant intentionally killed Stanley Swartz;
“2. That such killing was done with premeditation.
“3. That this act occurred on or about the 26th day of April 2007, in McPherson County, Kansas, which act ultimately lead to the death of Stanley Schwartz on May 19, 2007, in Sedgwick County, Kansas.”
Instruction No. 8, which followed PIK Crim. 3d 56.04, clearly presented distinct definitions for intent and premeditation. It defined intent as “[ijntentionally means conduct that is purposeful and willful and not accidental. Intentional includes the terms ‘knowing,’ ‘willful,’ ‘purposeful,’ and ‘on purpose.’ ” It defined premeditation as:
“Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous intentional act of taking another’s fife.”
PIK Crim. 3d 52.02 informed the jury it was the State’s burden to prove every element, stating: “If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant not guilty.” Nearly identical instructions supported the Ellmaker court’s holding that the permissible inference instruction is not related to the premeditation element.
In addition, the Ellmaker court provided another reason for Nelson’s contentions to fail, which as easily pertains to Nelson’s intent argument. We held in Ellmaker that the inference of intent instruc tion, i.e., PIK Crim. 3d 54.01, is an evidentiary rule that does not pertain to the State’s burden of proof. 289 Kan. at 1143. We went on to cite a number of cases in which this court found an inference does not alter the burden of proof. See 289 Kan. at 1143-44. The Ellmaker court concluded: “This repeated rejection of Ellmaker’s argument reaffirms the propriety of the instructions in this case.” 289 Kan. at 1144. The same analysis applied to Nelson’s case demonstrates the inference of intent instruction was not improper, taken in context with the other instructions, and did not mislead the jury when the instructions are considered as a whole.
Issue Three: Admission of Prior Crimes Evidence
Nelson does not dispute he forged stolen checks from Swartz or that he entered Swartz’ house without permission. But Nelson does challenge the district court’s admission of evidence of his prior burglary and forgery convictions. This issue arises because in August 2000 Nelson crawled in a side window at Swartz’ house and took checks. Nelson forged two checks for $400 and $115 and attempted to cash one. The bank suspected the check was forged and contacted law enforcement. Nelson was convicted of burglary and forgery for those crimes.
Before trial in the case now before us, the State filed a K.S.A. 60-455 motion seeking to admit evidence of the prior burglary and forgery convictions. The district court initially denied this request. But during the trial, the district court announced it was reversing that decision and the evidence was admissible. The court held the evidence was relevant to prove intent, identity, knowledge, and absence of mistake or accident regarding the burglary and forgeries the jury was considering.
Nelson objected at the time the district court ruled that the evidence was admissible. Later that day, an officer testified about the prior crimes. But Nelson did not make a specific and timely objection to this testimony. At the conclusion of trial, the district court issued a limiting instruction stating the evidence could only be considered to prove intent, plan, and identity.
K.S.A. 60-404 requires a timely and specific objection in order to preserve issues related to the admission of evidence for appeal. It states:
“A verdict or finding shall not be set aside, nor shah the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”
This court has held this requirement is imposed even when the district court had already denied a motion to suppress evidence prior to trial. State v. Riojas, 288 Kan. 379, 385, 204 P.3d 578 (2009). And while we concede Nelson’s facts are unusual because the district court initially excluded the evidence, changed its mind, and then informed the attorneys during trial that the evidence was admissible, Nelson’s objection at the time the district court announced it had changed its mind and would admit this evidence was not sufficient to preserve the issue. Accordingly, we hold Nelson’s failure to contemporaneously object when the evidence was offered during trial bars our consideration of the question now.
Issue Four: The Standard for Imposing a Hard 50 Sentence
Nelson argues his sentence must be remanded for resentencing because the district court imposed the wrong standard when finding aggravating factors supported a mandatory minimum 50-year (hard 50) sentence. The State admits the wrong standard was applied, but it argues resentencing is not required.
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 minimum sentence. For crimes committed after July 1, 1999, this requires a mandatory hard 50 term. K.S.A. 21-4635; see K.S.A. 22-3717(b)(l). To impose the hard 50 sentence, the district court must find one or more of the 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). Nelson is challenging his mandatory minimum sentence. This affects the burden of proof.
Before sentencing, the State filed a notice of its intent to seek the hard 50 sentence. In that notice, the State argued that a preponderance of the evidence standard applied to the aggravating factors determination and the evidence should be viewed in a light most favorable to the State. This is actually the standard for appellate review, not the standard of proof required for the district court to impose the hard 50 sentence. See State v. Spain, 263 Kan. 708, 720, 953 P.2d 1004 (1998) (The appellate standard of review is whether “after a review of all the evidence, viewed in a light most favorable to the State, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence.”).
The State’s error apparently infected the district court’s analysis because at sentencing it stated it was looking at the evidence in a light most favorable to the State. The judge stated:
“That brings us down to whether this is a hard 40 or hard 50 case. I’m of the opinion the State has presented sufficient evidence to show the hard 50 is justified. More specifically, and the journal entry should reflect it, I am finding that pursuant to K.S.A. 21-4636 subsection (e), the defendant committed the crime in order to avoid or prevent a lawful arrest or prosecution. There was evidence presented] during the trial that that was exactly the reason why the victim . . . was killed. I believe the evidence strongly points to that conclusion, and looking at it in the light most favorable to the State in any event, I think that has clearly been shown.” (Emphasis added.)
The State concedes the standard articulated by the district court was erroneous. But the parties disagree about what standard of proof applies. Nelson argues the aggravating factors must be proven beyond a reasonable doubt. The State argues a preponderance of the evidence standard applies. There is a conflict in this court’s cases on this issue, and both parties cite precedent supporting their position. See State v. Jones, 283 Kan. 186, 216, 151 P.3d 22 (2007) (reasonable doubt standard); Spain, 263 Kan. at 720 (preponderance of the evidence standard).
This issue was correctly determined in Spain. It held that the implicit standard of proof for aggravating circumstances under K.S.A. 21-4635(c) is a preponderance of the evidence. 263 Kan. at 714. Nelson cites Jones as having established the reasonable doubt standard. Jones was decided after Spain, but it cites State v. Gideon, 257 Kan. 591, 609-11, 894 P.2d 850 (1995), a case predating Spain, as a case not requiring a reasonable doubt standard as to the existence of mitigating circumstances. See Jones, 283 Kan. at 216-17. Moreover, the vast weight of our case law applies a preponderance of the evidence standard, particularly when this issue is raised in a challenge under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). See, e.g., State v. Johnson, 284 Kan. 18, 22-23, 159 P.3d 161 (2007), cert. denied 552 U.S. 1104 (2008) (“judicial fact finding utilizing a preponderance of the evidence standard to increase the mandatory minimum sentence does not run afoul of the jury trial guarantee”); see also State v. Vasquez, 287 Kan. 40, 61, 194 P.3d 563 (2008) (preponderance); State v. Warledo, 286 Kan. 927, 954-55, 190 P.3d 937 (2008) (preponderance). The holding in Jones to the contrary is disapproved.
But the real issue remains — what remedy applies when the district court uses the wrong standard of proof. Nelson argues his sentence should be remanded for resentencing. The State contends remand is unnecessary because the evidence supports a finding of the aggravating factors, and the district court properly weighed the aggravating and mitigating factors when imposing a hard 50 sentence.
The district court’s determination that aggravated circumstances existed was obviously tainted with its view of the evidence in favor of the State, and the State is essentially asking this court to make its own factual findings that the aggravating circumstances exist. This court has repeatedly held appellate courts do not make factual findings, even if the record is sufficient for the court to reach the factual issues. Fact-finding is simply not the role of appellate courts. See, e.g., State v. Thomas, 288 Kan. 157, 161, 199 P.3d 1265 (2009). As such, Nelson’s mandatory minimum sentence is remanded to the district court to determine whether aggravating circumstances exist under a preponderance of the evidence standard.
Affirmed in part, reversed in part, and remanded with directions for resentencing.
Davis, C.J., not participating.
Johnson, J., concurring: I concur in the ultimate result but write separately to disagree with the majority’s application of K.S.A. 60-404 to bar appellate consideration of the admissibility of prior crimes evidence.
The trial judge announced during the trial that it was reversing its earlier K.S.A. 60-455 holding and finding that evidence of Nelson’s prior crimes was admissible. Nelson objected. The objection was well in advance of any testimony about the prior crimes being presented to the jury. In the words of the statute: “[Tjhere appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” K.S.A. 60-404.
The trial judge had ample opportunity to consider the legal question presented by the defense so as to avoid conducting the trial with tainted evidence and to avoid possible reversal and a new trial, i.e., the purpose of K.S.A. 60-404 was fulfilled. See State v. King, 288 Kan. 333, 342, 204 P.3d 585 (2009) (stating the purpose of the contemporaneous objection rule). Any subsequent defense objections would have been tantamount to motions for reconsideration of the court’s ruling. Neither the statute nor our case law calls for the repeated confirmation that the court’s ruling still stands. Cf. Missouri Bank & Trust Co. v. Gas-Mart Development Co., 35 Kan. App. 2d 291, 298, 130 P.3d 128 (2006) (application of law of the case doctrine appropriate to avoid re-litigating issue resolved in previous stage of same suit). Accordingly, I would have considered the merits of Nelson’s evidentiary claim, albeit I would have found no error in admitting the evidence. | [
-79,
-20,
-35,
-98,
26,
-32,
42,
-72,
19,
-91,
-78,
115,
35,
-17,
65,
123,
115,
-65,
84,
105,
-43,
-73,
7,
-63,
-94,
-13,
-15,
-44,
-77,
75,
-66,
-97,
12,
112,
-118,
117,
102,
42,
-25,
-48,
-118,
22,
40,
-14,
-39,
18,
56,
47,
110,
6,
33,
-98,
-13,
42,
30,
-54,
8,
41,
75,
-65,
80,
-71,
-53,
-115,
-7,
16,
-125,
-94,
-103,
7,
-8,
36,
-104,
57,
0,
-24,
115,
-106,
-122,
84,
77,
-103,
12,
102,
98,
0,
93,
-51,
-20,
-127,
46,
118,
-99,
-89,
-103,
105,
69,
37,
-106,
-3,
118,
54,
42,
-12,
-17,
95,
27,
108,
3,
-50,
-112,
-125,
-87,
48,
14,
-6,
-45,
1,
48,
113,
-49,
-30,
78,
116,
89,
-101,
-114,
-106
] |
The opinion of the court was delivered by
Beier, J.:
This appeal by the State arises on a question reserved in a driving under the influence (DUI) prosecution. The State challenges the district court judge’s decision to grant a motion for judgment of acquittal based on the margin of error for the Intoxilyzer 5000 used to test defendant’s blood-alcohol concentration.
Factual and Procedural Background
Defendant Paul R. Finch was arrested for DUI, and his blood-alcohol concentration was measured at .08 through the use of an Intoxilyzer 5000 within 2 hours of his operating a vehicle. The State initially charged him in the alternative under K.S.A. 2007 Supp. 8-1567(a)(1), (a)(2), and (a)(3). Immediately before trial, the State informed the court that it was basing its DUI case solely on subsection (a)(2), which reads: “No person shall operate or attempt to operate any vehicle within this state while:. . . the alcohol concentration in the person’s blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more.” See K.S.A. 2009 Supp. 8-1567(a)(2) (same language). At trial, a police officer testified that he conducted two tests on the Intoxilyzer 5000 every 7 days or every 14 tests, whichever came first, to ensure that it was properly calibrated. He further explained that the results from these tests often varied. For example, on April 24, 2007, the first test returned a result of .080; the second test returned a result .079. Two days before, the first test had returned a result of .072; the second test returned a result of .073. The officer said the Intoxilyzer 5000 was calibrated so that tests returned readings from .070 to .089, with a temperature range of 33.8 degrees Celsius to 34.2 degrees Celsius. If the results did not fall within this range, the machine would abort the test and give an error message. The officer also testified that a person with a test result of .08 was considered intoxicated under state law.
“Q. [DEFENSE COUNSEL:] And there is a margin of error in the Intoxilyzer 5000, is there not?
“A. [OFFICER:] I would not agree with that, no.”
During further cross-examination by Finch’s counsel, the officer was asked if the Intoxilyzer 5000 was 100 percent accurate. This exchange followed:
“Q. Is there not a one percent margin of error on either side?
“A. Not that I am aware of, according to the statistics.
“Q. Not that you are aware?
“A. Not that I have been taught, no.
“Q. You don’t know whether there is a margin of error from the manufacturer?
“A. I’m stating I was not taught that there was.
“Q. All right. Were you taught that there wasn’t?
“A. That’s correct. I was taught that the test you get is accurate.
“Q. With — I mean like an election .... for instance where you have a two or three percentage point usual margin of error, you’re saying that doesn’t exist here?
“A. I would agree with that, yes.
“Q. I’m sorry?
“A. I believe that statement would be correct.
“Q. And do you have an explanation then as to why every trial that we pointed out was different, between one test and another, a percentage point or two, like for instance .079 to .080?
“A. The simulator solution bottle is attached to the Intoxilyzer. The simulator solution is heated, it has a heater in it. The top is not heated and the breath tube is not heated. When a subject gives a test, that breath tube is heated to try and maintain a constant temperature of the test, so with the simulator top not being heated and the tube not being heated, that air that is pulled through that simulator comes in at room temperature instead of what a person’s temperature is, and therefore with that change it’s gonna actually change your test result minutely, and that’s why the State has a range.”
Finch moved for judgment of acquittal after the State rested its case, arguing that the varying test results obtained on the Intoxilyzer 5000 created reasonable doubt. The district judge expressed concern about the officer’s testimony, saying:
“Well, first, [the officer’s] testimony to me seems inconsistent, and you can explain it if you want, with his testimony that the . . . Kansas Department of Revenue allows a variation between .073 and .087 in the known sample.
“And the known sample is . . . what’s used to compare the unknown sample, and that’s a .014, 14 one-hundredths variation. I don’t understand how anything . . . below .087 can be said to be .080 beyond a reasonable doubt, and so you can explain to me how — -I mean I think [the officer’s] testimony is inconsistent when he says there is no margin of error. Unfortunately, I’m also tainted by the fact I had a chemist testify in a trial... that there is in fact that variation in the Intoxilyzer 5000.”
The State responded, and then the judge and counsel further discussed the Intoxilyzer 5000:
“[THE STATE]: ... [The officer] testified that the known sample is, the tubes aren’t heated so that it can allow that tolerance, so that it’s an accurate test, and that it’s different when a person gives a test because the breath is warmed up and what not, and I think he did a good job of explaining that inconsistency between the known sample and then an actual human test. He testified for several minutes over that.
“THE COURT: But they heat the known sample, it’s got to be a certain temperature.
“[THE STATE]: Right, but he said there [are] variances in the known sample that can cause that variance, that’s not present when they do the human sample, and he testified that there is no margin of error, and I think because we have that testimony in front of the jury there is enough to submit it to the jury for them to malee a finding. They can decide if it’s — if it hasn’t risen to the level of reasonable doubt, or not, beyond a reasonable doubt or not, but I think that we’ve gotten past this point.
“[DEFENSE COUNSEL]: I think he also testified that every solution tests differently, so again when he was talking about the warm breath, every solution then is going to be a little different, and when it’s this close, how in the world can you get to where we need to go.
“THE COURT: I don’t think it makes sense, and frankly it’s my belief that anything under .087, you cannot say beyond a reasonable doubt that it is—
“[THE STATE]: Those facts may or may not be true, but they’re not before this jury and before the Court on this case.
“THE COURT: So we let them decide something that’s on incorrect evidence that we know is incorrect?
“[THE STATE]: Well, I think we have to submit the case on the evidence that’s been presented in this case, not evidence that’s been presented ... in any other case ever. We don’t have any evidence in this case that that’s inaccurate or that there is a margin of error.
“THE COURT: Well, yeah, there is evidence, there is evidence—
“[THE STATE]: Not in this case.
“THE COURT: — there is evidence as the known sample—
“[DEFENSE COUNSEL]: Well, there is evidence that every time they tested, it came out different when they’re doing the tests back to back.
“THE COURT: Yeah, which is .02.
“[THE STATE]: Well, but [the officer] testified as to why that happens. He did present that testimony as to why that happens with the known sample and not with the human sample.
“[DEFENSE COUNSEL]: Well, because every solution tests differently, which doesn’t make a lot of sense.
“[THE STATE]: Every, every solution is different than any other solution.
“THE COURT: I know [the officer] is wrong. I cannot let that go to the jury knowing it’s wrong. I am going to grant the motion for directed verdict.”
We transferred this appeal on a question reserved on our own initiative.
Discussion
Kansas courts accept appeals of questions reserved when the issues are “ ‘ “matters of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes” ’ but will not consider such appeals when ‘ “resolution of the question would not provide helpful precedent.” In re C.P.W., 289 Kan. 448, 451, 213 P.3d 413 (2009) (quoting State v. Skolaut, 286 Kan. 219, 224, 182 P.3d 1231 [2008]).
This case concerns a matter of statewide interest important to the correct and uniform prosecution of countless and often highly contentious DUI cases. Scientifically valid measurement of blood-alcohol concentration is a frequent feature of such cases, and margin of error in testing equipment a potentially fertile field of inquiry for the defense. We thus have no hesitation in concluding that resolution of the issue presented in this case will provide helpful precedent.
This appeal requires that we address questions both legal and factual. We must explore the legal elements the statute requires the State to prove in any K.S.A. 8-1567 (a)(2) prosecution. Then we must examine the evidence presented by the State in this case to decide whether, factually, it met the statutory proof requirements and should have survived the defense motion for judgment of acquittal. Although the outcome on this question in this appeal will not affect Finch, whose acquittal will stand, it promises to guide participants in future cases.
Two standards of appellate review are relevant.
First, statutory interpretation and construction raise questions of law reviewable de novo. State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008). The court’s first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007).
“When a statute is plain and unambiguous, we must give effect to its express language, rather than determine what the law should or should not be. We will not speculate on the legislative intent and will not read the statute to add something not readily found in it. If the statute’s language is clear, there is no need to resort to statutory construction. [Citations omitted.]” Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007).
Second, just as a district court must base its ruling regarding a defendant’s motion for judgment of acquittal on the sufficiency of the evidence, an appellate court reviewing a district court’s grant or denial of such a motion examines the sufficiency of the evidence to support the conviction. State v. Cavaness, 278 Kan. 469, 479, 101 P.3d 717 (2004). “ ‘[T]he [proper] standard ... is whether, after reviewing all of the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational fact finder could have found the defendant guilty beyond a reasonable doubt.’ [Citation omitted.]” 278 Kan. at 479.
The parties’ arguments also illuminate the legal and factual divide on the question before us. Specifically, the outcome of this case depends upon the correct meaning and appropriate application of the phrase “as measured” in K.S.A. 2007 Supp. 8-1567(a)(2). As set forth above, the statute prohibits operating or attempting to operate a vehicle “while” the alcohol concentration of the driver’s blood or breath, “as measured within two hours” of operating or attempting to operate a vehicle, is .08 or more.
The State argues that the district judge’s ruling in this case depended upon an improper legal conclusion that, to get to a jury, the State must prove beyond a reasonable doubt a defendant’s actual blood- or breath-alcohol concentration within 2 hours of driving, rather than merely a measurement of it within 2 hours of driving. See State v. Fish, 228 Kan. 204, 207-10, 612 P.2d 180 (1980) (“operating” and, “driving” are synonymous and used interchangeably). Given the judge’s understanding of the Intoxilyzer 5000’s margin of error, he ruled that the State would have to prove a reading of at least .087, rather than the statutory threshold of .08. At oral argument, counsel for the State went further, arguing that no defendant should be permitted to mount a margin of error defense to a charge under 8-1567(a)(2) once the State demonstrates that (1) the Intoxilyzer was operating properly, (2) the Kansas Department of Health and Environment testing protocol was followed, and (3) the test reading was .08 or more. The State asserts that the historical categorization of 8-1567(a) (2) as a “per se” statute prevents such a defense as a matter of law. It also argues that, factually, its evidence was sufficient to make a prima facie case.
The defense argues that the district judged ruling on the motion for directed verdict depended entirely on his appropriate assessment that the particular evidence in this case was factually insufficient, rather than any legal ruling regarding “as measured” or the margin of error. In the view of the defense, the district judge took the case from the jury because the State failed to meet its burden to come forward with evidence to support a prima facie case submissible to a jury; the evidence demonstrated that the Intoxilyzer 5000 was unreliable when Finch underwent his test and, thus, the result could not support his conviction as a matter of law, even under a per se statute.
The plain language of K.S.A. 2007 Supp. 8-1567(a)(2) is clear and unambiguous and, at least in part, favors the State. The State is correct that the only elements in this case were: (1) Finch operated/drove a vehicle; (2) while driving, Finch had an alcohol concentration in his blood or breath of .08 or more, as measured within 2 hours of operating/driving; and (3) the driving occurred on the date alleged in Douglas County, Kansas. See K.S.A. 2007 Supp. 8-1567(a)(2); PIK Crim. 3d 70.01-A. The statute does not mention the concept of margin of error. It neither requires its calculation nor prescribes a reduction in the Intoxilyzer test result based upon it.
As our Court of Appeals has previously recognized, a legislature certainly is capable of stating that a margin of error must be considered as a matter of law when drafting a driver s license revocation statute. See Ruble v. Kansas Dept. of Revenue, 26 Kan. App. 2d 1, 4-6, 973 P.2d 21 (1997) (discussing Nugent v. Iowa Dept. of Transp., 390 N.W.2d 125, 128 [Iowa 1986], subsequent statutory amendment by Iowa legislature; citing similar decisions in Wieseler v. Prins, 167 Ariz. 223, 225-26, 805 P.2d 1044 [Ct. App. 1990], rev. denied March 5, 1991; Hrncir v. Commissioner of Public Safety, 370 N.W.2d 444, 445 [Minn. App. 1985]). The same is true when a legislature drafts a DUI criminal statute. Our legislature did not do so in 8-1567(a)(2). And, as an appellate court, we are not willing to write a margin of error into its otherwise clear statutory language.
That being said, we also are not willing to go as far as the State would lead us in the opposite direction. The State overeggs the pudding when it discusses the historical categorization of 8-1567(a)(2) as a “per se” statute. See City of Colby v. Cranston, 27 Kan. App. 2d 530, 536-37, 7 P.3d 300, rev. denied 269 Kan. 931 (2000) (actual alcohol concentration need not be proved); State v. Hartman, 26 Kan. App. 2d 928, 931-32, 991 P.2d 911, rev. denied 269 Kan. 937 (2000) (not material whether defendant could safely drive vehicle). The State need not prove a defendant’s actual blood- or breath-alcohol concentration at the time of the test or at the time of driving, and it need not prove alcohol’s actual adverse impact on a defendant’s driving; but mere proof of an Intoxilyzer reading of .08 or above within 2 hours of defendant’s driving does not automatically necessitate conviction. The inclusion of the “as measured” language in 8-1567(a)(2) since the statute was amended to add it in 1990 does not inoculate the State’s proof from defense challenge. See Hartman, 26 Kan. App. 2d at 931.
Indeed, the State’s argument that a defendant should never be permitted to mount a margin of error defense appears to arise out confusion between the concept of a “per se” statute and the concept of a “prima facie” case. The State’s introduction of evidence supporting the statutory elements in a per se criminal statute does not endow the evidence with infallibility. It is sufficient to support a conviction but not to guarantee it. It merely establishes a prima facie case, one that may prevail “unless disproved or rebutted.” Blacks Law Dictionary 1228 (8th ed. 2004); see Hartman, 26 Kan. App. 2d at 932; see also United States v. Madden, No. 99-3276, 2000 WL 966436, at *3-4 (10th Cir. 2000) (unpublished opinion).
In short, proof of the elements of a per se criminal statute will get the State past a motion for judgment of acquittal and on to a jury. It will not compel a conviction as a matter of law. The defense may still attack the State’s proof and attempt to discredit its witnesses, their machines, and their methods during the State’s casein-chief or later. The jury may finally agree that reasonable doubt prevents a conviction. It is the role of the jury to determine the facts and to apply the law to those facts in reaching its decision. A plea of not guilty places all issues in dispute, including even things most patently true. However strong the State’s case may be, the juiy has the power to accept it, reject it, or find it insufficiently persuasive. See State v. Brice, 276 Kan. 758, 770-71, 80 P.3d 1113 (2003) (quoting United States v. Mentz, 840 F.2d 315, 319-20 [6th Cir. 1988]). A defendant in a prosecution under K.S.A. 8-1567(a)(2) may raise and argue margin of error or other questions about the reliability or accuracy of his or her blood- or breath-alcohol concentration “as measured,” in the same way he or she can challenge whether the test was conducted within 2 hours of operating or attempting to operate a vehicle. See State v. Pendleton, 18 Kan. App. 2d 179, 185-86, 849 P.2d 143 (1993). Margin of error is simply a factor among many possibilities for the fact-finder to consider. See State v. Miller, No. 99, 460, 2009 WL 1766150, at *1 (Kan. App. 2009) (unpublished opinion) (margin of error one fact for jury to consider, not dispositive for State, defendant); City of Hutchinson v. Minor, No. 90,088, 2003 WL 22831740, at *2-4 (Kan. App. 2003) (unpublished opinion) (same).
This is exactly the scenario that should have been permitted to play out to its conclusion in this case.
At the conclusion of the prosecution’s case-in-chief, when the evidence is viewed in the light most favorable to it, the State had established a prima facie case. Evidence established the elements of the offense under the per se statute, including the measurement of Finch’s blood- or breath-alcohol concentration was .08 or above within 2 hours of his operating a vehicle. We are convinced a rational fact-finder could have found Finch guilty beyond a reasonable doubt. The fact that the defense challenged the reliability and accuracy of the State’s evidence, introducing the concept of margin of error and prompting the officer’s stubborn insistence that no Intoxilyzer error was possible, made the case one for the jury’s evaluation and decision. By granting the motion for judgment of acquittal, the judge erred. The evidence was neither so weak nor so strong that acquittal or conviction was assured as a matter of law. The jury should have been permitted to discharge its duty.
In addition, although neither side makes a point of discussing it on this appeal, we note that the district judge apparendy relied in part on testimony he was familiar with from another case. If so, this too was error. See K.S.A. 60-409(a), (b) (circumstances in which judicial notice permitted limited); State v. McCray, 267 Kan. 339, Syl. ¶ 7, 979 P.2d 134 (1999) (K.S.A. 60-460(c)(2) permits use of testimony from former trial of same action if declarant unavailable, adverse party had right, opportunity to adequately cross-examine at former trial); Madden v. Stegman, 88 Kan. 29, 32, 127 P. 524 (1912) (former testimony may be introduced as evidence in litigation between persons who were parties to earlier litigation in which former testimony given); see also West v. Reddick, Inc., 302 N.C. 201, 202-03, 274 S.E.2d 221 (1981) (court may take judicial notice of its own records in another interrelated proceeding where parties same, issues same, interrelated case referred to in case under consideration); Gardner v. Martin, 162 Tex. 156, 158, 345 S.W.2d 274 (1961) (trial court may take judicial notice of its own records in cause involving same subject matter between same, or practically same, parties).
The State’s appeal on the question reserved is sustained.
Davis, C.J., not participating. | [
114,
-22,
-36,
-114,
63,
96,
58,
-38,
65,
-41,
-12,
113,
-19,
-61,
5,
43,
-109,
93,
117,
9,
-35,
-74,
23,
65,
-82,
-13,
-8,
-37,
23,
74,
-12,
-4,
13,
-80,
-118,
117,
38,
75,
-76,
-38,
-114,
4,
-7,
112,
90,
-110,
34,
104,
-109,
15,
49,
-113,
-45,
62,
25,
-113,
105,
40,
91,
-92,
-24,
-15,
-87,
-107,
-49,
22,
-94,
20,
-116,
-115,
88,
54,
-40,
57,
0,
-8,
123,
-74,
-62,
-12,
45,
-71,
12,
102,
99,
-96,
29,
-49,
-19,
-83,
-81,
62,
15,
-89,
24,
89,
97,
-116,
-106,
-35,
110,
50,
15,
-8,
107,
84,
95,
124,
-110,
-41,
-128,
-111,
77,
52,
-94,
-125,
-41,
-93,
16,
101,
-35,
-24,
86,
21,
90,
27,
-42,
-76
] |
The opinion of the court was delivered by
Beier, J.:
This interlocutory appeal is the latest in a related series of actions arising out of an inquisition conducted by former Attorney General Phill Kline regarding the performance of abortions in Kansas. In this case, we are asked to rule on whether a Johnson County district judge erred in quashing subpoenas directed at various employees of die Kansas Department of Health and Environment (“KDHE”) and at Shawnee County District Judge Richard D. Anderson and attorney Stephen W. Cavanaugh.
Although the issues before us are simply summarized, their resolution is not because they arise in a complicated factual and procedural context, revealed in fits and starts over the life of a series of cases. Like icebergs, the appearance of the issues above the waves is relatively benign; their mass and shape below the waves goes unnoticed or ignored at peril.
We therefore begin by setting forth a list of the cases in the series and then a chronology of pertinent events, taking care to guard the twin imperatives of patient privacy and criminal prosecution that we discussed in our first opinion in these related actions, Alpha Medical Clinic v. Anderson, 280 Kan. 903, 128 P.3d 364 (2006). Although not all of the information we review below has become public knowledge since the Alpha decision, much of it has. In addition, to the extent any of the following goes beyond what has previously been made or become public, we take care to ensure that no privacy or law enforcement goal is threatened. The chronology, dependent in part on documents and transcripts never supplied to this court before this appeal, is necessary to an understanding of our analysis and rulings.
We also emphasize that nothing in this opinion should be interpreted by the parties as license to publish or otherwise disseminate material sealed under our previous orders or previous orders of our district courts. As in Alpha, “[w]e caution all parties to resist” any such impulse, “which may imperil the privacy of the patients and the law enforcement objectives at the heart of this proceeding.” 280 Kan. at 930.
The Series of Cases
• Case No. 04-IQ-03. Inquisition launched by Kline while Attorney General filed in district court in Shawnee County (“the Inquisition”).
• Case No. 93,383 in the Supreme Court. Petition for Writ of Mandamus filed by two abortion clinics regarding the Inquisition subpoenas for patient records. This petition led to this court’s opinion, Alpha, 280 Kan. at 903 (“Alpha”).
• Case No. 97,554 in the Supreme Court. Petition for Writ of Mandamus filed by two abortion clinics regarding Kline’s ap pearance before the 2006 election on “The O’Reilly Factor” and other alleged dissemination of information from patient records (“the publicity mandamus action”).
• Case No. 98,747 in the Supreme Court. Petition for Writ of Mandamus filed by Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc. (“CHPP”), regarding Kline’s movement of records from Attorney General’s office to Johnson County District Attorney’s office. This petition led to this court’s opinion in Comprehensive Health of Planned Parenthood of Kansas v. Kline, 287 Kan. 372, 197 P.3d 370 (2008) (“Comprehensive Health”).
• Case No. 07 CR 2112. Criminal prosecution filed by former Attorney General Paul Morrison in Sedgwick County against Dr. George Tiller, a Wichita physician who performed abortions, which ended in an acquittal after jury trial (“the Tiller case”).
• Case No. 99,050 in the Supreme Court. Petition for Writ of Mandamus filed by Morrison against Judge Anderson seeking surrender of redacted patient records produced in the Inquisition and left in the judge’s custody (“Morrison v. Anderson”).
• Case No. 07 CR 2701. Criminal prosecution filed by Kline while Johnson County District Attorney against CHPP, which is the case underlying this appeal (“this criminal prosecution”).
Other proceedings before grand juries in Johnson and Sedgwick Counties regarding abortion providers, including one that led to a Petition for Writ of Mandamus in this court, eventually denied, and various related disciplinary matters are not listed above. Although some of these proceedings and disciplinary matters were contemporaneous with the cases on the list, they had no direct effect on their pursuit or disposition.
Factual and Procedural Background
The first crystals of the particular icebergs before us now were formed when Kline, in his capacity as Attorney General from January 13, 2003, to January 8, 2007, opened the Inquisition under the judicial supervision of Judge Anderson in Shawnee County.
As part of the Inquisition, Kline and his staff obtained copies of certain reports of abortions performed in 2003 in Kansas that were filed by clinics with KDHE. The entire group of reports produced by KDHE has never been filed or deposited with or otherwise disclosed to this court in this or any related action. This court is, therefore, necessarily dependent upon other s descriptions of these items.
According to the record before us, the reports produced by KDHE do not contain patient names, but patients are identified by numbers and other data, including age; marital status; state, county, and city of residence; ancestry and race; level of education; number of live and deceased children, if any; gestational age of the terminated pregnancy; and the date the patient’s abortion was performed. The reports also do not contain the names of abortion providers, who are identified by a code number. But there is no dispute — and no secret at this time — that the KDHE reports at issue in this appeal are among those filed with the agency by defendant CHPP and later sought from KDHE by Kline during the Inquisition.
Kline, as Attorney General, also sent subpoenas duces tecum in the Inquisition to obtain certain patient medical records directly from two Kansas clinics that performed abortions. Those subpoenas, and Judge Anderson’s refusal to quash or modify them, led the climes to file the petition for writ of mandamus in Alpha. At the time, the clinics were referred to as Alpha and Beta; they are now known to include defendant CHPP. See Comprehensive Health, 287 Kan. at 375.
As a result of the clinics’ Alpha petition, we ruled in February 2006 that Judge Anderson must first evaluate the soundness of Kline’s interpretation of the criminal statutes at issue to determine if there was a firm legal ground supporting the Inquisition. See Alpha, 280 Kan. at 924. If Kline’s theoxy passed muster, the clinics could be compelled under the subpoenas to produce the patient medical records after redaction of patient-identifying information, performed under the supervision of Judge Anderson and experts to be named by him. See Alpha, 280 Kan. at 924-25.
Post-Alpha Treatment of Patient Records
After the Alpha decision, Judge Anderson’s review of the Inquisition’s legal basis, and the redactions that followed, Kline and his staff received CHPP patient records for copying on October 24, 2006. We described some of what happened in our Comprehensive Health opinion:
“Shortly after die records were given to Kline, he and two of his subordinates, lawyers [Eric] Rucker and Stephen Maxwell, presented Judge Anderson with a summary of the records that Kline wanted to disclose publicly. Kline was in the final days of a highly contentious political race to retain his position; his opponent was then Johnson County District Attorney Paul Morrison. According to Judge Anderson, Kline — who had argued unsuccessfully to Judge Anderson while Alpha was pending before this court that the judge should not subject Kline to the nondisclosure provision in the subpoenas directed to the clinics — took an ‘aggressive’ position on the summary and his potential use of it. In Judge Anderson’s view, Kline appeared “somewhat desperate” to counter charges advanced by Morrison in die campaign. Kline also told Judge Anderson that he did not believe the judge could control what an attorney general disclosed to the public. Regardless of tire merit or lack of merit of that view, Judge Aoiderson warned Kline that he would have trouble persuading Judge Anderson to rule in his favor on any future inquisition issues if he publicly disclosed information from the patient records. At no point in this discussion with Judge Anderson did Kline, Rucker, or Maxwell divulge any plans for television or other public appearances concerning the inquisition or its results.
“On November 3, 2006, the Friday before election day and before Kline’s subordinates returned the originals of the redacted records to Judge Anderson, Kline was a guest on a nationally televised program, ‘The O’Reilly Factor.’ During the broadcast, host Bill O’Reilly suggested that O’Reilly had been made privy to the contents of die redacted records. Kline later testified that he ‘certainly’ considered his appearance on O’Reilly’s show to be appropriate despite this court’s cautionaiy language about publicity in Alpha and apparently despite Judge Anderson’s insistence diat Kline and his subordinates were bound by the subpoenas’ nondisclosure provision. Kline testified that he had decided to appear on the O’Reilly program because his office had been inundated with calls about his intentions, and he wanted to alleviate fears that his office was seeking identities of patients.
“Kline’s appearance on ‘The O’Reilly Factor’ prompted the clinics to press Judge Anderson to hold Kline in contempt before election day. They also filed [the publicity mandamus action under seal] with this court on the day before election day, November 6, 2006, seeking a stay of the inquisition, sealing of the records from Kline’s office, and deposit of the records with a special prosecutor or master appointed to investigate any leak of information from, or other mishandling of, the records.
“Morrison defeated Kline in the attorney general’s race. Approximately 2 weeks after the election, Judge Anderson declined to launch contempt proceedings against Kline in connection with the O’Reilly show. Although Judge Anderson would later testify that he was “very upset” with Kline for putting himself in a position allowing O’Reilly to claim he had seen the redacted patient records, Judge Anderson had concluded after questioning Kline, Maxwell, and Kline investigator Tom Williams under oath that Kline had not given the records to O’Reilly, if, in fact, O’Reilly had seen them at all. We denied the clinic’s November 6 petition for writ of mandamus on November 30, 2006.
“During the 2 weeks after the elections, Kline, Rucker, Maxwell, and Williams shared information from the redacted patient records and other inquisition results with at least three potential medical experts, including Dr. Richard Gilmartin, a pediatric neurologist from Wichita, and Dr. Paul McHugh, a psychiatrist from Baltimore, Maryland. Rucker had obtained Gilmartin’s name from a representative of Kansans for Life; he would later testify that he may have told the representative about the nature of the records. Kline had obtained McHugh’s name from a representative of Women Influencing the Nation. Both Kansans for Life and Women Influencing the Nation are anti-abortion advocacy organizations.
“The record before us reflects that Gilmartin took no notes and that no patient records were left with him. Maxwell and Williams evidently left copies of patient records and other inquisition documents with McHugh. These other documents included pregnancy termination information obtained from [KDHE,] which, when cross-referenced to patient records and/or other sources mined by Kline and his subordinates during the inquisition, enabled Kline to identify patients by name. The record reflects that the time period when Kline and his subordinates were seeking the cross-reference data was before or during the pendency oí Alpha. The record is unclear on exactly when McHugh returned the records left with him or whether he first made copies before returning the set he had been given. Judge Anderson had not required Kline or his subordinates to obtain confidentiality agreements from any persons to whom the records themselves or information within them was disseminated; and Kline and his subordinates did not take this step on their own.
“On December 11, 2006, Republican precinct committee members in Johnson County selected Kline to complete Morrison’s term as Johnson County District Attorney, once Morrison was sworn in as Attorney General on January 8, 2007.
“It was in this time frame that Kline and Maxwell conversed with Judge Anderson about Kline’s desire to send the patient records produced by the clinics in the inquisition to other prosecutors, specifically mentioning Shawnee, Sedgwick, and Johnson Counties. According to Judge Anderson, Kline and Maxwell did not tell him how this would be accomplished; they did not tell him that the records would not be received in Johnson County until Kline had taken office there; they did not tell him that they also would send the records from WHCS, a clinic in Sedgwick County, to Johnson County. Kline did tell Judge Anderson that the transformation of his Attorney General inquisition into a Johnson County District Attorney investigation would be ‘seamless.’ Judge Anderson would eventually testify that, during one of his conversations with Maxwell about the movement of patient records to Johnson County, he told Maxwell, ‘Just be sure that you do that in a very orderly and regular sort of way.’
“Shortly before leaving the Attorney General’s office, on December 20, 2006, Kline filed charges in Sedgwick County against Dr. George Tiller of [Women’s Health Care Services of Wichita, P.A. (WHCS)]. Kline supported the charges with an affidavit from McHugh, an affidavit from Williams, and information from the redacted patient records. The following day, District Judge Paul Clark dismissed the Sedgwick County charges at the request of Sedgwick County District Attorney Ñola Foulston.
“On December 27 or 28, 2006, Kline announced that, as Attorney General, he would appoint Wichita lawyer and anti-abortion activist Donald McKinney as a special prosecutor. The clinics filed a joint motion for a protective order with Judge Anderson, seeking to ensure that the patient records produced in the inquisition would remain with Judge Anderson and in the Attorney General’s office on Kline’s exit from that office. The record reflects that Judge Anderson received this motion on Wednesday, January 3,2007, but he did not rule on it immediately. Judge Anderson did, however, tell Maxwell that he wanted a full and accurate written report on where all copies of the patient records were as of the time of the transition between Kline and Morrison at the Attorney General’s office.
“Although Kline later testified that he directed Rucker to transport the records from the Attorney General’s office to Johnson County in mid-December 2006, the actual physical movement of the records did not begin until the Friday before Morrison was sworn in as Attorney General, January 5, 2007, and did not end until Kline had been in office as the Johnson County District Attorney for several weeks. In the intervening time, the patient records were stored in more than one automobile; in Maxwell's residence; and, from January 8,2007, until mid-February 2007, in the dining room of an apartment of another investigator, Jared Reed. The several weeks that the records sat in Reed’s dining room included the day that elapsed between the point when Reed’s employment with Kline’s Attorney General’s office ended and the point when his employment by Kline’s Johnson County District Attorney’s office began.
“On Friday, January 5, 2007, the same day that Rucker signed a 6-month contract with McKinney, McKinney’s fees to be funded by up to $25,000, apparently from tire budget of the Attorney General’s office, Williams removed all of the patient records obtained through the inquisition from the Attorney General’s office, along with additional investigation materials and records obtained from other agencies, and placed them in a state-owned vehicle. This Friday was to be Maxwell’s last day of work for the Attorney General’s office. The following day, Saturday, January 6, Williams delivered the records and other materials to Maxwell’s residence.
“At Maxwell's residence that day, Maxwell and Williams sorted the records for distribution to various places. At some point that day, Williams contacted Reed, who came to Maxwell’s residence and witnessed this process. Maxwell also was preparing a Status and Disposition Report, the written report Judge Anderson requested. The patient records and other materials were then locked in the trunk of a state-owned vehicle Williams was driving. Williams returned a set of materials to the Attorney General’s office, not including any CHPP or WHCS patient records, and left the rest of the materials sorted earlier at Maxwell’s house in the vehicle. The vehicle spent the rest of that weekend parked in a secure state parking lot.
“Shortly after 8 a.m. on Monday, January 8, 2007, the day Morrison was to be sworn in as Attorney General and Kline sworn in as Johnson County District Attorney, Williams and Reed met at the Shawnee County courthouse. They left five boxes of investigation materials at Judge Anderson’s chambers, as well as a copy of the Status and Disposition Report. Williams and Reed also left several boxes of materials, including patient records, at Shawnee County District Attorney Robert D. Hecht’s office.
“After these two distributions had been accomplished, Williams received a telephone call from Rucker, who had spoken to Kline that morning before Kline was .sworn in as Johnson County District Attorney. Kline had called Rucker to make sure that the patient records would be available in Johnson County and told Rucker for the first time that the materials going there needed to include records from WHCS as well as from CHPP. Kline indicated to Rucker that Judge Anderson had given permission for this to occur. Rucker, in turn, told Williams that the records headed for Johnson County needed to include the records from WHCS as well as CHPP. Williams expressed surprise and displeasure with what he apparently viewed as a last-minute change in his instructions and because the Status and Disposition Report produced and signed by Maxwell and left earlier that morning with Judge Anderson did not state that the WHCS records would go to the Johnson County District Attorney’s office. According to Williams, Rucker told him that Kline had nevertheless ordered this action and that Kline had spoken to Judge Anderson about it. Williams asked for written confirmation of this order.
“After the call from Rucker, Williams and Reed had to retrieve the patient records that had already been left at Hecht’s office. On Rucker’s instruction, they then took the records to a downtown Topeka photocopy store. Although Reed’s and Williams’ recollections vary slightly, apparently Reed began making copies of the WHCS records for use by Kline as Johnson County District Attorney (at the expense of the Attorney General’s office) while Williams returned the state automobile they had been using. After the copying was completed, Williams and Reed returned the set meant for Hecht to his office. All of the material intended for the Johnson County District Attorney’s office was then transported in Reed’s personal automobile and delivered to Reed’s apartment, where it was placed in his dining room.
“According to the record, at 3:43 that afternoon, several hours after all of the distribution steps were completed and Morrison had been sworn in as Attorney General, in apparent compliance with Williams’ request for written confirmation of the earlier order, Ruclcer sent an electronic mail to Williams. It stated: ‘Per the direction of AG Kline, I am directing you to copy all medical files and AG Kline is directing the copies be delivered... to the District Attorney for the 10th Judicial District before noon . . . K. Rucker Chief Deputy Attorney General (sent at 9:30 am)[.]’
“Although Kline’s subordinates had placed at least three boxes of materials connected to the inquisition at the Attorney General’s office before they left it, the precise content of these boxes cannot be determined at this stage because no specific inventory of them was created at the time. We understand, however, as mentioned above, that the boxes contained no copies of the patient records obtained from CHPP or WHCS.” 287 Kan. at 378-84.
Judge Anderson’s Response filed in the publicity mandamus action in this court included expressions of his views on the validity of Kline’s legal theories regarding inadequate record-keeping and reporting by CHPP. These opinions apparently arose out of the judge’s observations regarding the redacted patient records as produced. Per Alpha, Judge Anderson had appointed Topeka lawyer Stephen W. Cavanaugh as special counsel for adult patients and guardian ad litem for minor patients whose records were sought in die Inquisition to “protect against release of sensitive, confidential, and privileged information which is not relevant to the medical procedure and/or the criminal investigation” and to “supervise the reproduction and release of copies of all medical records.” The attachments to Judge Anderson’s response in the publicity mandamus action included three pieces of June and July 2006 correspondence between Cavanaugh and CHPP counsel concerning the types of information that could be redacted from patient records. Judge Anderson also attached a November 8, 2006, Cavanaugh affidavit regarding the redaction of the patient records.
Further Proceedings Before Judge Anderson and This Court
Before and after Kline and Morrison effectively traded prosecutorial offices on January 8, 2007, cooperation between their offices on the Inquisition and the evidence it had uncovered can be fairly described as nil. For example, Kline alleged that Morrison prevented Kline from having secure access and storage to the dis trict attorneys office in Johnson County. In addition, on March 27, 2006, it was necessary for Judge Anderson to permit Morrison’s office to malee copies of the CHPP patient records in the Inquisition files in Judge Anderson’s possession because Kline had left no copies behind in the Attorney General’s office.
By April 10,2007, Judge Anderson summoned Veronica Dersch, one of the attorneys in Morrison’s Attorney General’s office, to a closed Inquisition conference on the record. He told her, among other things, that Kline and Maxwell had contacted him about obtaining additional information regarding CHPP in the Inquisition. He again expressed his opinion of Kline’s evidence, this time on the need for a prosecutorial evaluation of its merit. He also said that he wanted to deal with only one prosecutorial office on the Inquisition.
The next day, when Kline and several other representatives of the Johnson County District Attorney’s office and several representatives of Morrison’s Attorney General’s office appeared before Judge Anderson for another closed Inquisition hearing, Judge Anderson again offered his opinion on Kline’s legal theories. Despite his compliments to Kline, however, Judge Anderson stated that Morrison’s office would control the Inquisition from that day on. He said to Kline:
“Let’s make sure that we have an understanding from this point forward. I do not consider the inquisition to be owned by you. When you lost the election and there was a new administration that came on, my interpretation is that Attorney General Paul Morrison and his assistants are in control of the investigation. . . .
“They own the investigation now as the Kansas Attorney General.”
Judge Anderson nevertheless deferred ruling on a Morrison request to order Kline to return copies of CHPP patient records. Judge Anderson noted that Kline was free to launch a new inquisition in Johnson County, “[b]ut that does not seem to be in the interests of justice to slow an investigation, to impair the ability to prosecute crimes.”
When Judge Anderson issued a formal ruling rejecting Morrison’s request for return of Kline’s copies of the CHPP patient records and other original investigative materials on April 18, 2007, he repeated his statements from the April 11 hearing. Given Kline’s assertion that he had evidence to support his belief that crimes had been committed, Judge Anderson’s Memorandum Decision said: “The public interest would not be reasonably advanced and could even be impaired by ordering the return of medical records.”
Judge Anderson also rejected a similar request from CHPP on May 15,2007, refusing to order Kline to return his copies of patient records to the clinic. CHPP then filed its sealed Comprehensive Health petition for writ of mandamus in this court against Kline on June 6, 2007. It was this mandamus action that focused on the irregularity of Kline’s transfer of clinic patient records and other Inquisition files from himself as Attorney General to himself as Johnson County District Attorney. Large portions of the file in Comprehensive Health were eventually unsealed by this court by order dated May 2, 2008.
Meanwhile, Morrison sent a clearance letter to CHPP counsel on June 25, 2007, stating that he had decided not to file charges against the clinic and that he was closing the Inquisition Kline had pursued. On July 9, 2007, Morrison filed a motion with Judge Anderson, seeking return of all Inquisition files in Judge Anderson’s possession; and, on July 10, 2007, Morrison wrote to Judge Anderson, informing the judge that he was closing the Inquisition.
Two days later, CHPP counsel Pedro Irigonegaray appeared unannounced at Judge Anderson’s chambers, seeking surrender of the CHPP patient records in Judge Anderson’s custody. Judge Anderson refused counsel’s request.
Judge Anderson then sent a letter to Morrison and Kline, dating it July 13, 2007. The letter formalized Judge Anderson’s refusal to turn CHPP patient records over to CHPP counsel and his ruling against Morrison on the motion for return of patient records and other Inquisition files in the custody of Judge Anderson. The judge emphasized that any patient records in his possession were redacted and secure. He also said that “collateral investigations” regarding the management of the records were yet to be resolved. He apparently was referring to Comprehensive Health in this court and at least one investigation that had been initiated by the Disciplinary Administrator. Judge Anderson further stated that Kline had informed him that the investigation of CHPP continued in Johnson County, based on Kline’s allegations that CHPP improperly redacted information from the patient records produced and that some records “may have been fabricated.” Judge Anderson said he had resisted opening a second inquisition for Kline in Shawnee County and had told Kline any allegations “could be explained to another judge” in Johnson County. Regardless, Judge Anderson wrote, he believed “the records as originally produced by [CHPP] should be maintained by this Court until transferred to another Court having jurisdiction over any investigation and charges and/ or until all collateral disputes and investigations have been resolved.” In a second letter sent the same day to Morrison only, Judge Anderson also refused to surrender patient records from WHCS that were produced in the Inquisition.
Five days later, Morrison filed a motion to intervene in Comprehensive Health in this court; his motion ultimately was granted.
Morrison also filed his own sealed mandamus action against Judge Anderson in this court, Morrison v. Anderson, on August 2, 2007. Morrison argued that, given the Inquisition’s closed status, Judge Anderson no longer had jurisdiction nor a reason to maintain court custody of documents the Inquisition had generated. (Large portions of the file in this case were eventually unsealed by this court by order dated May 2, 2008.)
On September 25, 2007, after Morrison had been permitted to intervene in Comprehensive Health, Morrison filed a sealed Memorandum in Support of CHPP’s petition accusing Kline of engaging in improprieties in the transfer of patient records from the Attorney General’s office to the Johnson County District Attorney’s office. The Appendix to the Memorandum included, among other items, a copy of Maxwell’s Status and Disposition Report; transcripts of the April 10,2007, Inquisition conference between Judge Anderson and Dersch as well as the April 11, 2007, Inquisition conference; Judge Anderson’s April 18, 2007, Memorandum Decision; Judge Anderson’s July 13, 2007, letter to Kline and Morrison; Judge Anderson’s July 13, 2007, letter to Morrison alone; and a transcript of a deposition of Reed, which described Kline’s transfer of clinic patient records to Johnson County. The filing of this Memorandum and Appendix led to this court’s October 5, 2007, order in Comprehensive Health, providing that no further copying and/or dissemination of records obtained through subpoenas to the clinics during the time Kline had served as Attorney General could be effected without further order of this court. An exception was set forth for copying or dissemination “as required for the pursuit of a law enforcement investigation or court proceeding.”
Beginning of This Criminal Prosecution and Continuing Mandamus Actions
As Johnson County District Attorney, Kline filed this action against CHPP on October 17, 2007. District Judge James F. Vano ordered the complaint and any documents filed with it to be placed under seal. Counts 1 through 23 of the complaint allege felony violation of K.S.A. 21-3711 through making of a false information. Counts 24 through 49 allege misdemeanor failure to maintain a record required to be kept by an abortion provider under K.S.A. 65-6703(b)(5). Counts 50 through 78 allege misdemeanor failure to determine fetal viability before performance of late-term abortions under K.S.A. 65-6703. Counts 79 through 107 allege misdemeanor unlawful performance of late-term abortions in violation of K.S.A. 65-6703. All of the counts in each group are identical from count to count except as to document numbers and patient numbers designed to identify the particular abortion that is the focus of each.
On October 19, 2007, Judge Anderson filed his sealed response to the Morrison v. Anderson petition. To justify his refusal to release Inquisition patient records to the Attorney General’s office, Judge Anderson described his observations of the patient medical records produced by the two clinics, saying “returning evidence to CHPP and WHCS at this point in time would unacceptably increase the risk that the evidence could be lost, destroyed or compromised while active investigations and prosecutions are [ongoing].” He further stated that it appeared “KDHE reports [received from CHPP], which are required by law to be filed and maintained for five years, do not match copies obtained from KDHE.” More over, he said that he had permitted Kline to keep copies of the CHPP patient records because they raised
“substantial factual and legal issues about CHPP compliance with the law .... The recent disclosures of possible false writings, which in context could mean that somebody may have committed a felony in an attempt to cover up a misdemeanor, convinces the District Court that no hasty decision should be made about management of the files which would risk loss or destruction of the as-filed redacted medical files of CHPP.”
On October 24, 2007, this court appointed Chief District Judge David J. King of the First Judicial District to conduct an evidentiary hearing and produce a report containing recommended findings of fact for Comprehensive Health, the mandamus action focused on Kline’s transfer of records. Specifically, Judge King was directed to obtain responses to 17 questions concerning Kline’s handling of patient records. Judge King conducted a 5-day evidentiary hearing in November and December 2007. When given notice by Judge Anderson that he had been subpoenaed to testify in the Judge King proceeding, this court did not intervene to prevent or limit Judge Anderson’s participation. In addition to Judge Anderson, witnesses at the hearing included Kline and certain of his subordinates. Judge King filed his report in Comprehensive Health on January 10,2008.
Hearing on Motion to Disqualify CHPP Counsel
In this criminal prosecution, on January 16, 2008, then Chief Judge Stephen R. Tatum in Johnson County heard District Attorney Kline’s motion to disqualify defense counsel Irigonegaray and Robert V. Eye. Although the motion is not in the record before us, a sealed transcript of the hearing is. Despite the sealing of the transcript, it is clear that the hearing was open to the public. For example, at one point Judge Tatum admonished Kline not to show an enlargement of a previously sealed document to members of the public in the gallery, including a person focusing a television camera. Kline called both Judge Anderson and Cavanaugh to testify at the hearing on the motion to disqualify.
The subpoena duces tecum directed to Judge Anderson to secure his testimony and the availability of certain documents at the hearing also is not in the record before us. But the hearing tran script again can be relied upon to identify at least some of the documents Judge Anderson brought to court that day. Among them were copies of KDHE reports produced by the agency in the Inquisition. Judge Anderson testified that these KDHE reports remained in the same form as when they were produced by the agency.
In addition, Judge Anderson brought copies of the patient records produced by CHPP in the Inquisition after our Alpha decision. He testified that there were particular pages within each record that CHPP represented to be copies of reports it submitted to KDHE on the patients’ abortions. These pages were added to the redacted patient records after CHPP’s initial document production in the Inquisition because special counsel Cavanaugh inquired about missing written determinations of fetal viability.
Kline attempted to introduce both the KDHE reports and the CHPP patient records into evidence during Judge Anderson’s testimony, but CHPP objected to the documents becoming part of the public record of the case. Judge Tatum deferred ruling on the objection.
While Judge Anderson was on the witness stand, Kline also attempted to elicit testimony about Judge Anderson’s mental process in overseeing the Inquisition, e.g., why and how he had made probable cause determinations in anticipation of search warrants that were contemplated before the subpoenas were issued in the Inquisition. These lines of inquiry usually drew successful relevance objections from CHPP’s lawyers. Judge Anderson testified without objection, however, that his contacts with Kline and his subordinates in the spring of 2007 — i.e., after Kline and Morrison traded positions but apparently before Judge Anderson told Kline and his subordinates that Judge Anderson would have no more interaction with the Johnson County District Attorney’s office on the Inquisition — prompted Judge Anderson to make a comparison of the reports produced by KDHE and the CHPP-produced documents that had been described as copies of the KDHE reports. Judge Anderson testified that Kline had expressed concerns about what Kline viewed as over-redaction and possible manufacturing of documents that were then represented as authentic. Judge Anderson then told Kline from the witness stand: “When you raised that issue, it was perceived by me as a very serious issue and I sought an independent evaluation of a part of the records to confirm whether there was a question that represented a real problem or not.”
On further questioning by Kline, Judge Anderson reviewed particular pages of the CHPP patient records. He also reviewed an August 21, 2006, letter from Irigonegaray to Cavanaugh that described the particular pages as copies of KDHE reports earlier submitted to the agency by CHPP. It was this description as copies upon which Kline focused, apparently wishing to rely upon differences between the pages and the reports produced in the Inquisition by KDHE to support the felony charges in this criminal prosecution.
On cross-examination by CHPP counsel Eye, Judge Anderson testified that, despite the redactions in the CHPP patient records, an individual patient and her family members could still use the records to discern the identity of the patient. He also said that he had made no determination whether any alleged discrepancies in the records were the result of something counsel had done. Judge Anderson then elaborated on his earlier reference to his own independent investigation:
“[B]ecause of how [Kline and Morrison] were treating one another and all of the controversy surrounding this matter, I took it on myself to ask a detective from the police department in Topeka to do a windshield of. . . records . . . and give me an opinion as to whether die documents appeared to be photo copies [sic] of one another. She confirmed that there, was a question about the records and that it was appeared to be a photocopy of one another. So at that point in time, I just did nothing more because the two prosecutors had the information.
“What happened next in time was I had an opportunity to have a conversation with Veronica Dersch from Paul Morrison’s office. She confirmed that she was aware of the questioned record issue. This was a conversation that I had down in Wichita during our judicial conference.
“Very quickly after that, Mr. Morrison declared that he was not going to do any further investigation of [CHPP], closed the investigation and represented publicly that there was no evidence of wrong doing [sic], A few days after that he filed a motion to return the records of [CHPP] to [CHPP].
“Before I had an opportunity to even rule on that, I Mr. Irigonegaray came to my office, expecting to pick up the records. I said, ‘Well, there’s a problem with the record.’ And he looked confused. And I said, ‘Let me show you.’ And I showed three records and I said, ‘These look like they are the same record and until this gets cleared up I am just going to sit tight on the records.’ Mr. Irigonegaray left the office without the records. And then in a few days, it was probably two or three weeks later, Attorney General Morrison filed a mandamus action against me to tiy to disgorge me of tire records.
“I had notified everyone that there was a questioned record. I had written a letter and . . . distributed it to Mr. Kline, Mr. Morrison, the disciplinary administrator, the Supreme Court Chief Justice and said there’s a problem with these recordsj.] I am going to sit tight. And I sat down like an old mule and just was going to sit on that until everything was cleared up. And that’s where we have been during the pendency of the mandamus. So I have made no determination that anybody did anything wrong.
“I have had a chance to review the records themselves and compare them with the records that were produced by the Kansas Department of Health and Environment, originally. These records that were produced by the Attorney General’s office, or with the subpoenaed 609 records for the court’s retention, do not match the records that are represented to be the KDHE reports that have been attached to the medical file that was reviewed by the physicians and used and relied on in their report to the court. That is the transaction as I recall it.
“When I spoke to Mr. Irigonegaray, I pointed out there was a problem. And, you know, I have described this as he looked at me like my golden retriever does when he doesn’t understand. He looked surprised. And I have known him for 25 years and truly he was surprised. He said, ‘You’re unpredictable.’ And as a judge, you don’t like to be called unpredictable because you like to be very deliberate about your rulings.
“I have known him for so long, I did what I probably should not have done, but for the relationship, I pulled these records from the file and I said, ‘Pedro, look at these records. There is a problem.’ And I said, Mr. Morrison probably shouldn’t have written that clearance letter like he did.’ Mr. Irigonegaray said, ‘It looks like this is going to last for a while.’ And I said, Teah.’ And that was the end of the conversation.
“I have not tried to make a determination as to whether the lawyers cooked the books. I’ve known you too long. You wouldn’t do that. I don’t know what happened in this production. But I do know that these records and the records that were produced with the medical record are not the same.”
Kline called special counsel Cavanaugh as his next witness in the hearing on the motion to disqualify defense counsel in this criminal prosecution. Cavanaugh described his role in the Inquisition and said that, once CHPP had made agreed-upon redactions in its patient records pursuant to Alpha, it produced the records to the district court in June 2006. Judge Anderson then placed the records in the custody of Cavanaugh, who reviewed them with two physicians appointed by Judge Anderson. This review resulted in Cavanaugh’s August 2006 contacts with CHPP counsel to inquire about missing written findings on fetal viability in certain records. Cavanaugh testified about these contacts and the correspondence evidencing the exchange, including statements to him by CHPP counsel Eye that such findings were documented on the KDHE reports submitted to the agency by CHPP. According to Cavanaugh, Eye also told him that the reports were kept separate from patient records in a secure file, and he and Eye agreed that CHPP would send copies of them to Cavanaugh. Once that was done via the August 21, 2006, letter from Irigonegaray to Cavanaugh, Cavanaugh ensured that the new pages were inserted into the patient records by matching patient numbers.
This testimony was followed by a flurry of objections related to Kline’s alleged use of the hearing to create premature publicity on his theories of prosecution. In response, Kline asserted that he was trying to demonstrate that the representations made by Eye and Irigonegaray went to the heart of the State’s case on missing written documentation of fetal viability determinations and on whether CHPP had engaged in felony making of false writings by manufacturing “copies” of KDHE reports in response to Cavanaugh’s questions. Kline argued that Irigonegaray’s letter enclosing the additional pages from CHPP was not a mere transmittal letter:
“It doesn’t say here are the documents you requested. It says here are documents that are copies of original filings with the Kansas Department of Health and Environment. And that is not the case. It also claims that these documents are needed as a demonstration of non-viability. That goes to the crux of this State’s case in the entirety of its complaint against [CHPP]. We allege that those documents are false information. There are specific references to the nature and how these documents were prepared and maintained by counsel. Certainly, stipulations are available. But the State has the right to pursue this evidence.”
In addition to identifying the series of August 2006 letters between himself and CHPP counsel, Cavanaugh testified about the contents of a September 10,2007, affidavit executed by him, which described CHPP’s production of patient records. The affidavit in- eluded the statement that the patient records originally produced “did not have a documented referral from a physician nor a finding that the fetus was not viable.” After CHPP counsel were permitted to gather the additional reports from their client and convey them to Cavanaugh, the omissions were cured, Cavanaugh said, and it was his “understanding and that of the physicians reviewing the records . . . the copies of pages . . . provided to us by . . . Irigonegaray were in fact photocopies of the page[s] from the actual reportfs] filed with the Kansas Department of Health and Environment for each respective file.”
As with Judge Anderson, the record before us does not contain a copy of the subpoena duces tecum directed at Cavanaugh to secure his testimony and certain documents at the hearing on the motion to disqualify defense counsel. However, it is apparent from the transcript that he had brought copies of his August 2006 correspondence with CHPP counsel and his September 10, 2007, affidavit with him when he came to court.
At the conclusion of Cavanaugh’s direct examination, Kline again offered for admission the State’s exhibits that had been reviewed with Judge Anderson and Cavanaugh. On defense objection, Judge Tatum again deferred his ruling.
When CHPP counsel declined to cross-examine Cavanaugh, Kline announced that he had no further witnesses on the motion, and counsel were permitted to make their arguments.
Kline again repeated the State’s theory of prosecution on the 23 felony counts in the complaint, as well as his reasons for believing that CHPP counsel Eye and Irigonegaray would be State witnesses:
“[CHPP] provided documents pursuant to subpoena and represented them to be copies of original documents filed with the Kansas Department of Health and Environment. . . and . . . those documents are not, in fact, actual copies of the original files but were manufactured pursuant to that subpoena.
“[T]he State will provide evidence at trial that the records produced pursuant to subpoena are copies of the very same document over and over.
“... But the State does not want a motion after trial claiming a conflict [between CHPP and its counsel] when the State intends to call their counsel as witnesses. So a waiver on the record with full knowledge is important.
“[T]hey are material witnesses to a largely disputed fact. You heard the dispute here today.”
Judge Tatum denied Kline’s motion to disqualify. Most important for purposes of this appeal, the judge also ordered that all of the exhibits marked and/or offered by Kline be returned to the person who brought them to court for the hearing. Thus none of the documents referenced by Judge Anderson and Cavanaugh during their testimony became a part of the public record of this criminal prosecution at that time. Judge Tatum emphasized that, at the conclusion of the hearing, Judge Vano’s seal order remained in place.
Two weeks later, on January 31, 2008, Steve Six was sworn in as Morrison’s successor in the Attorney General’s office.
Preliminary Hearing Subpoenas and This Court’s Protective Order
As an April 7 and 8, 2008, setting for the preliminary hearing in this criminal prosecution approached, Kline issued another subpoena duces tecum to Judge Anderson. The subpoena required Judge Anderson to bring with him all KDHE reports produced in the Inquisition; 29 CHPP patient records produced in the Inquisition; a Cavanaugh affidavit for which no date was given; eight pieces of correspondence between Cavanaugh and CHPP lawyers from May, June, and August 2006; Judge Anderson’s Memorandum Decision dated April 18, 2007; and one of his July 13, 2007 letters, presumably the one written to Kline and Morrison that dealt with CHPP’s patient records.
On March 24,2008, also in preparation for the preHminaiy hearing, Kline issued a subpoena duces tecum to Dr. Elizabeth Saadi, KDHE’s Interim Director for the Center for Health and Environmental Statistics. It called for her testimony and required her to bring to court certified copies of KDHE reports filed with the agency by CHPP regarding 23 of the 29 abortion patients whose records had been obtained from CHPP. KDHE filed an objection and motion to quash the subpoena 4 days later, arguing that it was prevented from producing the reports filed with it by CHPP because K.S.A. 65-445 forbade disclosure to the Johnson County District Attorney.
On April 2, 2008, the eve of the hearing on KDHE’s motion, Kline faxed two additional subpoenas to KDHE. Each was titled “duces tecum” but did not list any documents to be brought to the preliminaiy hearing by the witness. One was directed to KDHE’s records custodian and one to KDHE Chief of Vital Statistics Data Analysis Gregory Crawford.
The record before us contains an unsealed transcript of the April 3, 2008, hearing on KDHE’s motion to quash before Judge Tatum. KDHE, Kline, and CHPP agreed at the hearing’s outset that Judge Tatum and the parties also could take up the two later subpoenas faxed to KDHE as part of the motion hearing. Kline clarified that the two later subpoenas were intended to call for testimony only, despite their duces tecum labels.
At the hearing, the lawyer for the KDHE said that no witness from the agency could authenticate the KDHE reports produced by the agency in the Inquisition as true and correct copies of the reports submitted to the agency by CHPP without doing a comparison of the two sets of documents. The agency was unwilling to do such a comparison unless ordered to do so because of the limitations of K.S.A. 65-445.
For his part, Kline asserted during the hearing that he had no need for the documents listed in the Saadi subpoena because he already had them; rather, he only needed Saadi to authenticate his set as true and correct copies of the reports submitted to the agency by CHPP. Kline represented that the two later subpoenas to the KDHE records custodian and Crawford were intended to obtain testimony that KDHE complied with his request for documents in the Inquisition. Kline argued that nothing prevented him from sharing the KDHE reports he had gathered under K.S.A. 65-445 as Attorney General with other law enforcement agents or prosecutors, including himself as Johnson County District Attorney. He also argued that he could put the produced documents into evidence in this criminal prosecution through an investigator or Judge Anderson.
Judge Tatum took the KDHE motion to quash under advisement. He also continued the preliminary hearing previously set for April 7 and 8 until May 27 and 28, 2008.
Meanwhile, on the same day as the motion to quash hearing before Judge Tatum, Judge Anderson filed a Notice of Collateral Proceedings and Receipt of Subpoena for Records in Morrison v. Anderson, the case in this court seeking Judge Anderson’s surrender of Inquisition documents. Judge Anderson attached a copy of the subpoena issued by Kline for the April 7 and 8 prehminary hearing. The same day, Six learned of the prehminary hearing subpoena and filed an emergency motion for protective order in Morrison v. Anderson. Six sought further court control of records but did not ask this court to stop Judge Anderson from testifying at the prehminary hearing in this criminal prosecution.
On April 4,2008, unaware of Judge Anderson’s and Cavanaugh’s January 2008 testimony in the hearing on the motion to disqualify CHPP counsel, and unaware that the January 7-8 preliminary hearing had been continued the previous day by Judge Tatum, this court issued a protective order in Morrison v. Anderson. We directed Judge Anderson to safeguard exclusive possession of “inquisition records maintained by him” and not to appear as a witness in this criminal prosecution “until further order of this court.”
On April 18, 2008, after Judge Anderson had received our April 4 protective order in Morrison v. Anderson, he issued a similar protective order under the Inquisition case number so that Cavanaugh would not be forced to testify or produce documents for the prehminary hearing in this criminal prosecution. We have neither information in the record before us nor statements or arguments from counsel concerning how Judge Anderson had continuing jurisdiction in the Inquisition, which the Attorney General had purported to close the previous summer.
Also on April 18, 2008, Judge Anderson gave written notice via letter to Khne of our April 4, 2008, protective order in Morrison v. Anderson. On April 21, 2008, Khne nevertheless issued a new subpoena duces tecum to Judge Anderson to appear and produce documents at the continued prehminary hearing in this criminal prosecution on May 27 and 28, 2008. The subpoena commanded Judge Anderson to bring with him (1) copies of any and all KDHE report forms regarding the Inquisition; (2) copies of the 29 patient records from CHPP; (3) a copy of his April 18,2007, Memorandum Decision; and (4) a copy of one of his July 13, 2007, letters, again apparently the one of the two dealing with CHPP.
Also on April 21, 2008, Kline filed in this criminal prosecution an unsealed and untimely Response to the KDHE motion to quash that had been heard on April 3; he did not serve the Response on the other parties, and there is no explanation on the record before us for this violation of Supreme Court and local court rules. Kline argued that K.S.A. 65-445 should not be construed to prevent him from getting the documents listed in the subpoena because the statute would then prevent exactly the enforcement of abortion regulation that the legislature intended to allow. He also asserted, apparently referring to Judge Anderson’s and Cavanaugh’s testimonies at the January 16 hearing on the State’s motion to disqualify, that he had already demonstrated the relevance of the documents and the seriousness of the issue.
The next day, April 22, 2008, Kline issued a subpoena duces tecum to Cavanaugh. It commanded that Cavanaugh bring with him to the continued preliminary hearing on May 27 and 28, 2008, (1) his September 10, 2007, affidavit; (2) a copy of Eye’s letter to him dated August 14, 2006; (3) a copy of his letter to Eye dated August 15, 2006; and (4) a copy of Irigonegaray’s letter to him, dated August 21, 2006.
On April 24, 2008, Judge Tatum held another hearing in this criminal prosecution, this time on defendant CHPP’s motions to strike, to have Kline held in contempt, and to dismiss. The motions were prompted by Kline’s attachment of Judge Anderson’s April 18, 2007, Memorandum Decision, which CHPP believed to be sealed in the Inquisition, to Kline’s April 21 Response to KDHE’s motion to quash, as well as the Kansas City newspaper’s subsequent publication of information contained in the Memorandum Decision. Judge Tatum, had, during the April 3 hearing, declined Kline’s invitation to review that Memorandum Decision and had placed the copy offered to him by Kline, unread, in a sealed envelope; Judge Tatum also had declined Kline’s offer to contact Judge Anderson to check on the sealed or unsealed status of the Memorandum Decision. Judge Tatum denied CHPP’s motions, instead reinforcing Judge Vano’s seal order and directing the par ties to deliver copies of anything to be filed in the clerk’s office first to his chambers for review.
On April 28, 2008, Judge Tatum issued a written order quashing the March 24 prehminary hearing subpoena duces tecum to Saadi. Although the parties had agreed to take up the two later KDHE subpoenas, i.e., those to the records custodian and Crawford, at the April 3 hearing on KDHE’s motion to quash, Judge Tatum’s order did not address either.
A little over one week later, on May 2, 2008, this court unsealed portions of the record and court file in Comprehensive Health and Morrison v. Anderson. Also, believing that Judge Anderson had given Attorney General Six and his subordinates access to the entire Inquisition file by then, this court issued an Order to Show Cause why Morrison v. Anderson should not be dismissed. Our May 2 order also continued our April 4 protective order in force, save an amendment to permit Six to respond to discovery requests in the Tiller case.
On May 8, 2008, KDHE filed a motion to clarify Judge Tatum’s April 28 order in this criminal prosecution, seeking a ruling on whether the subpoenas to its records custodian and Crawford also had been quashed.
On May 16, 2008, Judge Anderson filed a motion for protective order in this criminal prosecution on behalf of himself and Cavanaugh.
Five days later, in this criminal prosecution, Kline filed a motion to reconsider and/or clarify Judge Tatum’s order quashing Saadi’s subpoena. He also filed a motion to intervene in Morrison v. Anderson in this court, arguing that his motion was timely because he had just become aware of the April 4 protective order when portions of the record in that case were unsealed. This statement was inconsistent with the date of Judge Anderson’s letter to Kline. Kline’s motion to intervene also inaccurately asserted that before May 7, 2008, he had not been “previously noticed or made aware of the nature of any proceedings” in Morrison v. Anderson. Kline had actually been served with a motion to consolidate Comprehensive Health and Morrison v. Anderson in September 2007. As support for intervention, Kline also included arguments on the merits of this criminal prosecution, invoking Judge Anderson’s earlier expressed opinions and Cavanaugh’s September 10, 2007, affidavit. Kline also argued that our April 4 protective order conflicted with our October 5, 2007, protective order entered in Comprehensive Health, which made an exception to dissemination of clinic patient records for the pursuit of a law enforcement investigation or court proceeding.
Kline responded to Judge Anderson’s motion for protective order in this criminal prosecution on May 27, 2008. He again based the bulk of his arguments on opinions Judge Anderson had expressed about the merits of the case against CHPP, as well as special counsel Cavanaugh’s statements regarding missing viability determinations and reliance on CHPP counsel’s description of the documents transmitted to Cavanaugh in late August 2006. As part of his effort to rely on Judge Anderson’s expressions of opinion on the quality of Kline’s evidence, Kline also mentioned that Judge Anderson had already testified at the January 16, 2008, motion to disqualify hearing and that Judge Anderson had shown the documents gathered by Kline to a Topeka police expert. Support for the Johnson County felony charges, Kline asserted, “simply” required “a comparison of the original [KDHE reports] and the . . . reports that criminal defendant claimed w[ere] kept In a separate secure file’ and . . . were actual copies of the original report filed with KDHE.” He further contended that the Johnson County misdemeanor charges were supported by the lack of viability determinations and emergency findings in the patient medical records produced by CHPP in the Inquisition.
Also on May 27, 2008, Judge Tatum heard KDHE’s motion to clarify, Kline’s motion for reconsideration, and Judge Anderson’s motion for protective order in this criminal prosecution. The transcript of this hearing is unsealed in the record before us. A Kline representative argued at the hearing that the subpoenas to the KDHE records custodian and Crawford were intended to bring witnesses to the preliminary hearing to testify generally about how KDHE reports are received and maintained and how the agency adds any markings to them. He said that the State also “theoretically” would have KDHE representatives compare the documents obtained from KDHE in the Inquisition and testify whether they are the same as the documents filed with KDHE by CHPP. Judge Tatum questioned whether KDHE personnel would be able to testify to that fact without having the originals of the reports in front of them and characterized a subpoena asking them to bring reports submitted by CHPP and KDHE for purposes of comparison as having a distinction without a difference from a subpoena asking them to bring such reports for admission into evidence.
Counsel for Judge Anderson, and, by extension, Cavanaugh, relied on this court’s April 4, 2008, protective order. In response, Kline argued that the April 4 protective order should not control because testifying posed no undue burden and impaired no privilege. In addition, Kline said, Judge Anderson had already testified in the January hearing on the motion to disqualify CHPP’s counsel and Judge Anderson’s testimony on the KDHE reports was necessaxy because of the opinions he had expressed on that evidence. Counsel for CHPP objected that Judge Anderson could not serve as an expert witness on his client’s culpability, a position with which counsel for Judge Anderson agreed. Judge Tatum asked Kline to explain Judge Anderson’s role in the prosecution’s case against CHPP. Kline responded that Judge Anderson would “not authenticate, necessarily.” And he again, provoking repeated objections, recited Judge Anderson’s previously expressed opinions on the quality of Kline’s evidence. Finally, Judge Tatum heard the remainder of Kline’s proffer on why Judge Anderson and Cavanaugh could provide relevant evidence in this criminal prosecution at the bench and on a sealed record not included in the transcript in the record on appeal.
At the conclusion of the hearing, Judge Tatum ruled that this court’s April 4 protective order in Morrison v. Anderson
“does not say that Judge Anderson is never to be a witness over here. It says he is not to appear . . . until further order of the court. . . .
“[W]e have set the prelim hearing over. When we will get a ruling, a decision or when there’s a further order of Supreme Court, I can’t say. But we will wait for that.
“ . . . I will follow that order. At this time I will quash the subpoenas for Judge Anderson and Mr. Cavanaugh ... for the information requested and for their testimony as requested at this time. When we get further direction from the Supreme Court then we will proceed accordingly.”
On June 2, 2008, Judge Tatum signed an order quashing the subpoenas to the KDHE records custodian and Crawford. He also denied Kline’s motion for reconsideration of his earlier decision on die Saadi subpoena.
The next day, Six filed his Response opposing Kline’s motion to intervene in this court’s Morrison v. Anderson case. He pointed out several misstatements in Kline’s motion and argued that it was untimely. Six pointed out that his motion for protective order had not sought to prevent Judge Anderson’s testimony in the preliminaiy hearing in this criminal prosecution, only to prevent further distribution of patient medical records by Khne. Six also argued that Kline’s intervention motion was insufficient because of its failure to attach a pleading setting forth the claim or defense for which Khne sought to intervene. Judge Anderson endorsed Six’ arguments against Kline’s intervention through a Response filed June 6, 2008.
Also on June 6, 2008, Khne filed his Notice of Interlocutoiy Appeal to the Court of Appeals in this criminal prosecution, challenging Judge Tatum’s order “suppressing evidence and enjoining any person from the Kansas Department of Health and Environment from testifying about any topic entered on May 27, 2008.”
This court denied Kline’s motion to intervene in Morrison v. Anderson on July 3, 2008. •
Court of Appeals Show Cause and Transfer to This Court
Later in July, the Court of Appeals ruled after a show cause proceeding that its jurisdiction over the appeal in this criminal prosecution extended only to Judge Tatum’s rulings arising from the May 27, 2008, hearing. At the time, the Court of Appeals understood this to mean it could review only the ridings on the two later KDHE subpoenas. At the Court of Appeals suggestion, on August 7, 2008, Kline’s office filed a pleading demonstrating that Judge Tatum also had ruled on the subpoenas to Judge Anderson and Cavanaugh as part of the May 27,2008, hearing. Kline did not, however, take issue with the Court of Appeals’ decision that it lacked jurisdiction over the Saadi subpoena. The brief of appellant, filed in this criminal prosecution on September 9, 2008, also did not challenge this aspect of the appellate jurisdiction decision.
This court transferred this interlocutory appeal from the Court of Appeals on December 22, 2008.
On January 29, 2009, while this interlocutory appeal was awaiting a May 2009 oral argument, this court dismissed Morrison v. Anderson. The dismissal order was silent on the status of the April 4, 2008, protective order that had been entered in that case. At oral argument before this court, counsel from the Johnson County District Attorney s office, where Kline had been replaced by Stephen M. Howe, said he did not know whether the April 4 protective order remained in effect.
Discussion
In order to begin our analysis of Judge Tatum’s rulings on the subpoenas for witnesses to appear and bring documents to the preliminary hearing in this criminal prosecution, we must first consider the felony charges brought by the State and the legal theories the State has advanced to support them.
For Counts 1 through 23, die only felony counts, the State appears to rely entirely on what Judge Anderson and Cavanaugh understood defense counsel Irigonegaray to say in his letter when producing documentation of CHPP’s written determinations of fetal viability. The charges hinge on Irigonegaray’s description of the items as copies of reports submitted previously by CHPP to KDHE. The State hopes to demonstrate that the documents are not in fact copies of the KDHE reports by comparing them to the reports in the KDHE’s files, and it suggests that the “copies” produced by CHPP may have been created only after special counsel Cavanaugh raised an issue about their absence. For this reason, the State needs authenticated copies of the reports filed by CHPP as they exist in KDHE’s files, which it will then compare to the items produced by CHPP to Cavanaugh.
It is also important to note, as an initial matter, that a typical inquisition does not lead to the supervising district judge becoming a custodian of documents produced in response to subpoenas. In the ordinaiy case, a district judge merely authorizes certain investigative tools, c.g., subpoenas or search warrants; and any documents or other physical evidence gathered through use of those tools are deposited with the prosecutor or law enforcement agencies. Given the unique character of Kline’s abortion-related inquiry, and possibly prompted in part by the safeguards put in place by this court in its Alpha decision, Judge Anderson did become the custodian of certain documents produced in the Inquisition leading to this criminal prosecution, including the redacted patient records produced by CHPP and, apparently, the reports submitted by CHPP to KDHE and then produced by KDHE. We note in passing that there appear to have been breaks in Judge Anderson’s custody. For example, on October 24, 2006, Kline’s staff was permitted to take the clinic patients’ redacted records from Judge Anderson and make copies. At another point, Morrison’s staff was permitted to do likewise. But we are not asked to address the significance of those breaks in this appeal, and we do not do so.
Saadi Subpoena Duces Tecum
The Saadi subpoena duces tecum called for her testimony as well as the production of certified copies of 23 KDHE reports of induced pregnancy termination pertaining to the patients whose abortions are the subject of the felony counts in the complaint.
Consideration of the subpoena duces tecum directed to Saadi requires us first to discuss the scope of our jurisdiction in this interlocutory appeal. Neither party discusses jurisdiction in its brief. However, it is the responsibility of this court to consider the issue sua sponte, if necessary. State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008).
As the Court of Appeals observed before transfer, the Notice of Interlocutory Appeal in this criminal prosecution was insufficient to create appellate jurisdiction over the Saadi subpoena because it came too late. The State’s pleading filed August 7, 2008, in response to the Court of Appeals’ order to show cause was sufficient to demonstrate the existence of appellate jurisdiction over the subpoenas directed at Judge Anderson and Cavanaugh but not over that directed to Saadi. Thus, although counsel for both parties ap peared to assume the existence of such jurisdiction at oral argument before this court, we do not reach the merits of either side’s arguments on the Saadi subpoena duces tecum. Judge Tatum’s ruling on that subpoena stands undisturbed.
Crawford and KDHE Records Custodian Subpoenas
These two later KDHE subpoenas require us to address three prehminary points.
First, the State’s Notice of Interlocutory Appeal was timely and specific enough to create appellate jurisdiction over the Crawford and KDHE records custodian subpoenas. The State’s Notice of Interlocutory Appeal was filed on June 6, 2008, within 10 days of the May 27, 2008, hearing before Judge Tatum and explicitly referenced that hearing.
Second, as mentioned above, the subpoenas to Crawford and the KDHE records custodian were titled “Subpoena Duces Tecum” but listed no documents to be brought to court. In addition, Kline assured Judge Tatum that the titles of the subpoenas were in error and that they were not meant to command the production of documents by either witness.
Third, some of the topics on which Kline intended to have these witnesses testify are clear and some less so. It is clear that the State wished to call Crawford and the records custodian to testify generally to the agency’s practices regarding reports submitted by abortion providers such as CHPP, presumably including the forms used and other information about means of submission and storage. Kline and one of the other attorneys from his District Attorney’s office also represented that the State would put on evidence from these witnesses about any markings made on the reports by agency employees. Kline also wanted testimony from a KDHE witness to show that KDHE responded to the Inquisition during his term as Attorney General by producing copies of reports submitted by CHPP on the 23 abortions underlying the felony counts in the complaint.
It is somewhat less clear from the record before us whether Kline also intended to use these two subpoenas to secure testimony comparing the reports as they currently exist in KDHE’s files, i.e., those called for in the Saadi subpoena, to those Kline obtained from KDHE in the Inquisition, i.e., those called for in the subpoena to Judge Anderson. It is also somewhat less clear whether Kline also intended to use the two later KDHE subpoenas to obtain testimony on the comparison between one or both of the sets of reports from KDHE to the reports as produced in the Inquisition by CHPP, once Cavanaugh inquired about written determinations of fetal viability. From the record before us, it is certain Kline intended to get comparison testimony from Saadi. And it is evident that Judge Tatum believed this to be one of Kline’s goals with the two other KDHE witnesses as well. In addition, at oral argument before this court, counsel for the State asserted that Saadi and a KDHE records custodian would serve the same evidentiary purposes for the State. In the discussion below, we therefore assume that Kline intended, and the State still intends, to use Crawford and/or the KDHE records custodian to compare sets of documents, one of which consists of CHPP reports as they currently exist in KDHE’s files.
The statute governing Judge Tatum’s evaluation of the motion to quash filed by KDHE is K.S.A. 60-245(c)(3)(A), which reads in pertinent part: “On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it:... (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies.”
Neither KDHE nor CHPP has claimed that the reports as they currently exist in KDHE’s files or their contents are privileged. However, both have argued that the reports and their contents are “other protected matter” because they are covered by K.S.A. 65-445. That statute states in pertinent part:
“(a) Every medical care facility shall keep written records of all pregnancies which are lawfully terminated within such medical care facility and shall annually submit a written report thereon to the secretary of health and environment in the manner and form prescribed by the secretary. . . .
“(b) Each report required by this section shall include the number of pregnancies terminated during the period of time covered by the report, the type of medical facility in which the pregnancy was terminated, information required to be reported under K.S.A. 65-6703 and amendments thereto if applicable to the pregnancy terminated, and such other information as may be required by the secretary of health and environment, but the report shall not include the names of the persons whose pregnancies were so terminated.
“(c) Information obtained by the secretary of health and environment under this section shall be confidential and shall not be disclosed in a manner that would reveal the identity ... of any medical care facility which submits a report to the secretary under this section, except that such information, including information identifying such persons and facilities may be disclosed to the state hoard of healing arts upon request of the board for disciplinary action conducted by the board and may be disclosed to the attorney general upon a showing that a reasonable cause exists to believe that a violation of this act has occurred. Any information disclosed to the state board of healing arts or the attorney general pursuant to the subsection shall be used solely for the purposes of a disciplinary action or criminal proceeding. Except as otherwise provided in this subsection, information obtained by the secretary under this section may be used only for statistical purposes and such information shall not be released in a manner which would identify any county or other area of this state in which the termination of the pregnancy occurred. A violation of this subsection (c) is a class A nonperson misdemeanor.
“(e) For the purpose of maintaining confidentiality as provided by subsections (c) and (d), reports of terminations of pregnancies required by this section shall identify tihe ... facility submitting such reports only by confidential code number assigned by the secretary of health and environment to such . . . facility and the department of health and environment shall maintain such reports only by such number.”
K.S.A. 65-6703, referenced by K.S.A. 65-445(b), makes the performance of certain abortions illegal and outlines specific reporting and record-keeping obligations:
“(a) No person shall perform or induce an abortion when the fetus is viable unless such person is a physician and has a documented referral from another physician not legally or financially affiliated with the physician performing or inducing the abortion and both physicians determine that: (1) The abortion is necessary to preserve the life of the pregnant woman; or (2) a continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman.
“(b)(1) Except in the case of a medical emergency, prior to performing an abortion upon a woman, the physician shall determine the gestational age of the fetus according to accepted obstetrical and neonatal practice and standards applied by physicians in the same or similar circumstances. If the physician determines the gestational age is less than 22 weeks, the physician shall document as part of the medical records of the woman the basis for the determination.
(2) If the physician determines the gestational age of the fetus is 22 or more weeks, prior to performing the abortion upon the woman the physician shall de termine if the fetus is viable by using and exercising that degree of care, skill and proficiency commonly exercised by the ordinary skillful, careful and prudent physician in the same or similar circumstances. In making this determination of viability, the physician shall perform or cause to be performed such medical examinations and tests as are necessary to make a finding of the gestational age of the fetus and shall enter such findings and determinations of viability in the medical record of the woman.
(3) If the physician determines the gestational age of a fetus is 22 or more weeks, and determines that the fetus is not viable and performs an abortion on the woman, the physician shall report such determinations and the reasons for such determinations in writing to the medical care facility in which the abortion is performed for inclusion in the report of the medical care facility to the secretary of health and environment under K.S.A. 65-445 and amendments thereto or if the abortion is not performed in a medical care facility, the physician shall report such determinations and the reasons for such determinations in writing to the secretary of health and environment as part of the written report made by the physician to the secretary of health and environment under K.S.A. 65-445 and amendments thereto.
(4) If the physician who is to perform the abortion determines the gestational age of a fetus is 22 or more weeks, and determines that the fetus is viable, both physicians under subsection (a) determine in accordance with the provisions of subsection (a) that an abortion is necessary to preserve the life of the pregnant woman or that a continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman and the physician performs an abortion on the woman, the physician who performs the abortion shall report such determinations, the reasons for such determinations and the basis for the determination that an abortion is necessary to preserve the life of the pregnant woman or that a continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman in writing to the medical care facility in which the abortion is performed for inclusion in the report of the medical care facility to the secretary of health and environment under K.S.A. 65-445 and amendments thereto or if tire abortion is not performed in a medical care facility, the physician who performs the abortion shall report such determinations, the reasons for such determinations and the basis for the determination that an abortion is necessary to preserve the life of the pregnant woman or that a continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman in writing to tire secretary of health and environment as part of the written report made by the physician to the secretary of health and environment under K.S.A. 65-445 and amendments thereto.
(5) The physician shall retain the medical records required to be kept under paragraphs (1) and (2) of this subsection (b) for not less than five years and shall retain a copy of the written reports required under paragraphs (3) and (4) of this subsection (b) for not less than five years.
“(d) . . . Notwithstanding any provision of this section, a person shall not perform an abortion that is prohibited by law.
“(e) As used in this section, ‘viable’ means that stage of fetal development when it is the physician’s judgment according to accepted obstetrical or neonatal standards of care and practice applied by physicians in the same or similar circumstances that there is a reasonable probability that the life of the child can be continued indefinitely outside the mother’s womb with natural or artificial life-supportive measures.
“(g) Upon a first conviction of a violation of this section, a person shall be guilty of a class A nonperson misdemeanor. Upon a second or subsequent conviction of a violation of this section, a person shall be guilty of a severity level 10, nonperson felony.”
Interpretation of a statute is a question of law over which this court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). The most fundamental rule is that the intent of the legislature governs if that intent can be ascertained. Arnett, 290 Kan. at 47. An appellate court must first attempt to ascertain legislative intent through the statutoiy language enacted, giving common words their ordinary meanings. State v. Raschke, 289 Kan. 911, 914, 219 P.3d 481 (2009). 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. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute’s language or text is unclear or ambiguous does the court use canons of construction or legislative history or other background considerations to construe the legislature’s intent. State v. Trautloff, 289 Kan. 793, 796, 217 P.3d 15 (2009). This court cannot delete vital provisions or supply vital omissions in a statute. No matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one that the legislature alone can correct. See State v. Johnson, 289 Kan. 870, 879, 218 P.3d 46 (2009).
The relevant text of K.S.A. 65-445(c) is unambiguous. It tells us plainly that any disclosure of the reports filed by CHPP in the form they currently exist in KDHE’s files or of their contents is strictly limited to two recipients, the Board of Healing Arts and the Attorney General. The party now seeking disclosure of the reports or their content is the Johnson County District Attorney rather than the Board of Healing Arts or the Attorney General. In our view, the plain statutory limitation on disclosure in K.S.A. 65-445(c) makes the information it covers “other protected matter” under K.S.A. 60-245(c)(3)(A)(iii).
We also note that K.S.A. 65-445(c) sets up a condition for disclosure to the Attorney General. He or she must show “that a reasonable cause exists to believe that a violation of this act has occurred.” (Emphasis added.) This condition would have controlled the appropriateness of KDHE’s disclosure in Kline’s Inquisition during his term as Attorney General. That disclosure is not before us in this action, and we pass no judgment on it.
The statute also sets up strict parameters on the use to which disclosed reports or contents of reports can be used. Such information “shall be used solely for the purposes of a disciplinary action or criminal proceeding.” The KDHE Secretary may also use the information in its statistical reports. The statute does not state that the Attorney General is the only prosecutor entitled to use properly disclosed KDHE reports or their contents in the pursuit of criminal justice. To the extent CHPP has urged us to read this additional restriction into the statute here, we decline to do so. Counsel for the State is correct that the legislature is able to design a statute to limit a prosecutor’s jurisdiction, and it did not do so in K.S.A. 65-445.
In addition, the disclosure language in the statute is more restrictive than the use language. Disclosure to the Attorney General is conditioned on a showing of reasonable cause to believe that a violation of Chapter 65 occurred, while use of properly disclosed reports is permitted in a criminal proceeding, apparently including prosecutions of crimes beyond those defined in Chapter 65.
Although our analysis could end here, we note possible support for our plain-language conclusion from two other lines of argument mentioned by the parties over the course of this criminal prosecution.
First, events during the 2008 legislative session may have significance. Both houses approved legislation to amend K.S.A. 65-445(c) to permit disclosure of KDHE reports such as those under consideration here to county and district attorneys. See H. Sub. for S.B. 389 (2008) (enrolled and presented April 11, 2008). The amendment would have become law but for the Governor s veto and a failure to override it. See Sen. J., April 30, 2008, p. 2023 (message from the Governor vetoing S.B. 389); Sen. J., April 30, 2008, p. 2043 (Senate unable to override veto). Because we presume that a legislative alteration of statutory language makes a substantive change in the law, see State v. Preston, 287 Kan. 181, 184, 195 P.3d 240 (2008), we could make the further assumption that the 2008 legislature believed it necessary to state explicitly that a district attorney could obtain release of KDHE reports in order for the statute to allow it. The counterargument is that courts should avoid reading too much into legislative inaction.
Second, contrary to the oral argument of the State, the Kansas Open Records Act’s treatment of the type of KDHE reports at issue here is consistent with our limitation on their dissemination. The Act sets out an exception permitting agency refusal to disclose these reports to unauthorized persons. See K.S.A. 45-221(a). That exception, which had been due to expire in July 2010, see K.S.A. 2009 Supp. 45-229(i), was instead extended to July 2015 during the 2010 legislative session. See L. 2010, ch. 112, sec. 3.
K.S.A. 65-445(c) compels us to conclude that Judge Tatum’s ruling quashing the subpoenas directed to Crawford and the KDHE records custodian must be affirmed in part and reversed in part.
To the extent the State wishes to call these persons to the stand as fact witnesses on general practices of the agency regarding reports such as those filed by CHPP, it should be permitted to do so. Such testimony does not disclose either the reports themselves or their contents. To the extent the State wishes to call these persons to testily on additional facts about the agency’s response in the Inquisition, i.e., that it received a subpoena or request of some sort that appeared to be in compliance with the statutory condition or was otherwise unchallenged, and that it produced reports to Kline as Attorney General, that type of testimony also is permissible. Again, such testimony does not disclose either the reports themselves or their contents, with the possible exception of CHPP’s code number, which has already been discussed in open court.
In contrast, neither Crawford nor the KDHE records custodian can be permitted to testify in a way that, as Judge Tatum put it, “accomplishes indirectly what cannot be accomplished directly” under K.S.A. 65-445. The statute prevents these witnesses from making what is effectively a disclosure of the KDHE reports filed by CHPP as they currently exist in the agency’s files by bringing the reports to court in a district attorney’s prosecution. It also prevents these witnesses from doing a physical comparison of the KDHE reports filed by CHPP as they currently exist in the agency’s files in order to testify that they are the same as or different from another set of documents. Likewise, these witnesses are not permitted to testify from memoiy on the contents of the KDHE reports filed by CHPP as they currently exist in the agency’s files.
Judge Anderson Subpoena Duces Tecum
As outlined above, Judge Anderson’s subpoena duces tecum called for his testimony as well as the production of several items that came into his possession or were created by him because of the Inquisition: (1) the reports submitted by CHPP to KDHE and produced by the agency during the Inquisition; (2) the CHPP patient records produced by the clinic during the Inquisition; (3) Judge Anderson’s Memorandum Decision dated April 18, 2007; and (4) one of Judge Anderson’s July 13, 2007, letters, presumably the one addressed to Kline and Morrison about CHPP.
The State’s Notice of Interlocutory Appeal was timely and specific enough to create appellate jurisdiction over the subpoena to Judge Anderson.
The record before us demonstrates that Kline intended to use Judge Anderson to accomplish at least three purposes. First, he wanted Judge Anderson to give traditional document custodian’s testimony to authenticate or prove a fink in the chain of custody for the KDHE reports and the patient records produced in the Inquisition. Second, he wanted Judge Anderson to be a fact witness, one who would testify to the circumstances surrounding the opening and continuation of the Inquisition, and, specifically, the manner in which the submitted KDHE reports were produced by the agency and the “copies” by defendant. Finally, Kline repeatedly made it obvious that he hoped Judge Anderson also could function as a legal expert, repeating his earlier gratuitous opinions on the quality of the State’s proof, which Judge Anderson had expressed at various times and in various settings throughout this and related cases.
Two initial points must precede our discussion of the document production and testimonial components of Judge Anderson’s subpoena duces tecum.
First, Judge Tatum relied entirely on our April 4, 2008, protective order entered in Morrison v. Anderson to quash the subpoena duces tecum directed to Judge Anderson. The State’s argument— that our protective order, because it was entered in an original action rather than in an appeal, carried no more weight than an order of another district court, which Judge Tatum could therefore feel free to ignore — is unsupported by pertinent authority. Failure to support a point by pertinent authority or to show why it is sound despite a lack of supporting authority is akin to failing to brief an issue. See State v. Conley, 287 Kan. 696, 703, 197 P.3d 837 (2008); McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002).
That being said, we acknowledge that the April 4, 2008, protective order gave Judge Anderson and Six more relief than they sought when Judge Anderson filed his Notice of Collateral Proceedings and Six filed his emergency motion for protective order in Morrison v. Anderson. The initial scope of the order was nevertheless necessary to ensure the protection of patient privacy at the heart of this series of cases, given imperfect information from both sides of the dispute and the temporal exigency of a preliminary hearing we believed to be set for the next business day.
We further acknowledge that the eventual dismissal order in Morrison v. Anderson was silent on the continuing force of the unamended portion of the protective order, which covered Judge Anderson’s participation in this criminal prosecution. The discussion and holdings below constitute the “further order of this court” necessary under the protective order, correcting any initial over-breadth and otherwise refining its design in accord with the governing law and the now-apparent subject matter.
We note that Kline earlier attempted to obtain a modification of our April 4, 2008, protective order by moving to intervene in Morrison v. Anderson. This was the correct initial procedural avenue to obtain relief, but he nevertheless failed to demonstrate the appropriateness of intervention on the merits. His principal arguments appeared to focus on his desire to have Judge Anderson testify about his previously expressed opinions on the quality of the State’s evidence against CHPP. As discussed below, a judge who presides over an inquisition should not later serve as an expert witness on the culpability of a criminal defendant prosecuted as a result of evidence gathered in the Inquisition. In addition, Kline’s motion to intervene had structural and substantive flaws pointed out in Six’ Response opposing it.
The modification of the April 4, 2008, protective order effected by this opinion necessitates modification in Judge Tatum’s ruling based upon it, and it is affirmed in part and reversed in part as to Judge Anderson’s subpoena duces tecum.
A. Documents
We first address the document production aspect of the subpoena duces tecum directed to Judge Anderson.
Judge Anderson cannot be subpoenaed to produce the first category of documents, i.e., the reports produced by the KDHE during the Inquisition for the 23 patients whose abortions are the subjects of the felony counts in the complaint. Again, the District Attorney cannot be permitted to do indirectly what he cannot do directly under the plain and unambiguous language of K.S.A. 65-445. For this and all of the reasons discussed above with regard to the Crawford and KDHE records custodian, Judge Anderson cannot be ordered to produce for the District Attorney the reports that came from KDHE in the Attorney General’s Inquisition. These reports are “other protected matter” under K.S.A. 60-245(c)(3)(A)(iii), and the subpoena duces tecum is quashed as to them.
The fact that Judge Anderson apparently brought the KDHE reports to court when he testified at Judge Tatum’s January 16, 2008, hearing on Kline’s motion to disqualify defense counsel does not affect our holding on this issue. The record before us reveals no general objection to Judge Anderson’s appearance as a witness or his production of the reports at that time, whether by Judge Anderson himself, KDHE, or CHPP; thus the potential prohibitive effect of K.S.A. 65-445 was not before Judge Tatum. We also note Judge Tatum did not admit the KDHE reports or any other document brought by Judge Anderson into evidence at that hearing, and none became a part of the public file. Counsel for CHPP did raise the issue of confidentiality when admission into evidence was sought for the KDHE reports and the CHPP patient records.
Judge Anderson may be ordered to produce for the district attorney the CHPP patient records produced by the defendant clinic in the Inquisition. Although these records clearly are confidential and constitutionally protected and statutorily privileged in their original pristine state — for all of the reasons already discussed by this court in our Alpha decision, see 280 Kan. at 919-25 — the set the District Attorney seeks here was redacted for patient-identifying information by CHPP before they ever reached Judge Anderson’s possession during the Inquisition. There has been testimony that a patient and her family may still be able to tell from the records if her abortion is the one documented. Judge Tatum should conduct an in camera review of the records and order any further redaction necessary to protect patient privacy and ensure compliance with this court’s decision in Alpha. In addition, we are confident that Judge Tatum and the parties can design any further safeguards necessary at this stage. As we already noted, the Inquisition was unusual in that it led to an evidence custodian role for the supervising district judge. Now, as that custodian, Judge Anderson can be ordered to bring the CHPP patient records to court to facilitate this criminal prosecution.
Judge Anderson also may be ordered to produce for the Johnson County District Attorney Judge Anderson’s April 18, 2007, Memorandum Decision and his July 13, 2007, letter to Kline and Morrison. (Judge Anderson’s other July 13, 2007, letter regarding WHCS records is plainly immaterial to this criminal prosecution.) As with other documents that have previously been under seal in the Inquisition, Judge Tatum may need to make special arrangements for the transmission and storage of these documents. We have not been asked to determine at this time whether these documents constitute relevant and admissible evidence for trial. We leave those questions to Judge Tatum in the first instance, guided by the discussion of Judge Anderson’s testimony below.
B. Testimony
As Attorney General Six observed in opposing Kline’s motion to intervene in Morrison v. Anderson, “asking a district judge to testify is a serious matter.” United States v. Ianniello, 866 F.2d 540, 544 (2d Cir. 1989); see also United States v. Frankenthal, 582 F. 2d 1102, 1108 (7th Cir. 1978) (compulsion of judge’s testimony “create[s] sensitive problems requiring delicate attention”); In re Whetstone, 580 S.E.2d 447, 448 (S.C. 2003) (collecting cases). Generally, “[ajbsent a showing of extraordinary need, a judge may not be compelled to testify about matters observed as the consequence of the performance of his [or her] official duties.” Hensley v. Alcon Laboratories, Inc., 197 F. Supp. 2d 548, 550 (S.D. W. Va. 2002). This rule allows judges to perform as arbiters of the law without fear of having to provide later explanatory testimony, and it prevents juries from being unduly influenced by judges’ robes. Hensley, 197 F. Supp. 2d at 550; see Inscoe v. Inscoe, 121 Ohio App. 3d 396, 418, 700 N.E.2d 70 (1997). A judge should only be required to testify if he or she possesses factual knowledge; the knowledge is highly pertinent to the jury’s task; and the judge is the only possible source of testimony on the relevant factual information. See United States v. Roth, 332 F. Supp. 2d 565, 568 (S.D.N.Y. 2004).
This common law is reflected in part by K.S.A. 60-442, which gives a party in a trial veto power over testimony of the presiding judge. We do not routinely permit judges who handle preliminaiy hearings, for example, to testify at trial about their reasons for concluding there was probable cause to bind the defendant over for that trial. The role of such judges, like Judge Anderson’s role here, should be and remain that of a neutral and detached magistrate, not a member of the prosecution or defense team. It also is consistent with our unwillingness to recall jurors to examine their thought processes in arriving at a verdict. See K.S.A. 60-441; see also Roth, 332 F. Supp. 2d at 567 (judge’s testimony limited to factual knowledge; testimony as to mental processes impermissible); see also Brinkerhoff v. Bank, 109 Kan. 700, 709, 205 Pac. 779 (1921) (citing Packet Co. v. Sickles, 72 U.S. 580, L. Ed. 550 [1866] [judge’s reasons for decision not admissible any more than those of jury]).
Given our rulings above on the reports produced by the KDHE during the Inquisition, it follows that Judge Anderson may not testify about the contents of any of the particular KDHE reports the subpoena duces tecum purports to order him to produce. This prohibition includes testimony from memory about those contents, as well as any comparison between those contents and the contents of any other sets of documents. Again, the Johnson County District Attorney cannot be permitted to do indirectly what he is forbidden to do directly under K.S.A. 65-445.
Judge Anderson may, however, testify as a fact witness about any relevant events of the Inquisition that led to and followed KDHE’s production of reports to Kline when he was Attorney General.
In this extraordinary case, Judge Anderson also may give traditional document custodian testimony, insofar as it is relevant, about the redacted CHPP patient records, i.e., authenticate them as the documents that came into his possession during the Inquisition. He also may testify as a fact witness on how the Inquisition began and was conducted, how the dispute leading to Alpha arose and was resolved, how he set up a procedure to comply with Alpha’s directives, and how that process was pursued. In particular, he may testify to the limits of his personal factual knowledge about CHPP giving the redacted patient records to him and/or Cavanaugh and events that followed.
Regarding the content of his April 18, 2007, Memorandum Decision and his July 13,2007, letter to Kline and Morrison, it appears from the record before us and the earlier statements of Kline in his time as Johnson County District Attorney that the State intended to use Judge Anderson and the opinions he expressed in these documents as substantive evidence of CHPP’s culpability. We have previously described as “most troubling” the State’s invocation of a judge’s prior determination of probable cause before a jury. In re Care & Treatment of Foster, 280 Kan. 845, 858, 127 P.3d 277 (2006). The use to which Kline repeatedly indicated he wanted to put Judge Anderson’s testimony on the judge’s evaluation of the evidence against CHPP in this criminal prosecution is similar in kind and in potential unduly prejudicial effect. It is not fact witness testimony; and Judge Anderson was not, by virtue of his participation in the Inquisition, automatically transformed into an expert witness who may give opinion testimony on the issue of CHPP’s criminal culpability.
But we do not know whether Kline’s intention persists in Howe, Kline’s successor in the Johnson County District Attorney chair. Howe’s representative at oral argument before this court appeared unsure on this point. We therefore leave to Judge Tatum on remand tire question of what use, if any, under the strict standards set forth above, Judge Anderson’s testimony based on these two documents may be put by any party.
Cavanaugh Subpoena Duces Tecum
Again, as outlined above, the subpoena duces tecum directed to special counsel Cavanaugh called for his testimony and the production of his September 10, 2007, affidavit and three pieces of August 2006 correspondence between him and CHPP counsel. The correspondence followed Cavanaugh’s inquiry about written determinations of fetal viability missing from the patient records as initially produced by CHPP. One of those pieces of correspondence is the August 21, 2006, letter from írigonegaray to Cavanaugh, which enclosed the KDHE reports described as “copies” and upon which Kline said he would so heavily depend to prove the felony counts in this criminal prosecution.
The State’s Notice of Interlocutory Appeal was timely and specific enough to create appellate jurisdiction over the Cavanaugh subpoena.
As an initial matter on this subpoena duces tecum, we note that Cavanaugh was not covered by this court’s April 4,2008, protective order. However, when Judge Anderson received it, he issued an order of his own, ostensibly in the Inquisition that had already been closed by Attorney General Morrison, to prevent Cavanaugh from appearing or producing documents in this criminal prosecution. In addition, Judge Anderson filed his motion for protective order on behalf of himself and Cavanaugh. After hearing, Judge Tatum apparently quashed the subpoena duces tecum directed to Cavanaugh for the same reason he quashed the subpoena duces tecum directed to Judge Anderson.
Again, this opinion constitutes the “further order of this court” referenced in our April 4, 2008, protective order. It appears that Judge Tatum’s ruling regarding Cavanaugh entirely rested upon our protective order, as extended to cover Cavanaugh by Judge Anderson. Indeed, it is now apparent that our protective order would have explicitly covered Cavanaugh as well as Judge Anderson when the order was first entered, had this court been made aware that Cavanaugh also had been subpoenaed to appear and produce documents at the preliminary hearing. In any event, as with Judge Anderson, our modification of order in this opinion requires Judge Tatum’s ruling regarding Cavanaugh to be affirmed in part and reversed in part.
A. Documents
Cavanaugh may also be compelled to produce the letters that passed between him and CHPP counsel in the process of redacting and gathering CHPP patient records in the Inquisition. We have not been asked to determine at this time whether these documents constitute relevant and admissible evidence for trial. We leave those questions to Judge Tatum in the first instance, guided by the discussion of Cavanaugh’s testimony below.
B. Testimony
Cavanaugh may be compelled to appear as a fact witness on CHPP’s production of patient records in response to the Inquisition, including explanation of the procedure set up by Judge Anderson under Alpha and the communications between Cavanaugh and CHPP counsel in the summer of 2006. If, as it appears from the record as developed thus far, Cavanaugh was a temporary custodian of CHPP patient records, he may also be compelled to give traditional document custodian testimony. Like Judge Anderson, however, Cavanaugh was not automatically transformed by his participation in the Inquisition into an expert witness who may give opinion testimony on CHPP’s criminal culpability. It is unclear what the State’s current intentions are in this regard, and we leave appropriate limitations, if any, on Cavanaugh’s testimony to Judge Tatum’s careful consideration on remand.
Conclusion
This court lacks jurisdiction to address Judge Tatum’s ruling quashing the subpoena duces tecum directed to Saadi, and, insofar as this interlocutory appeal addresses that ruling, it is dismissed.
Judge Tatum’s ruling on the subpoenas to the KDHE records custodian and Crawford is affirmed in part and reversed in part, based on K.S.A. 65-445, as detailed in the foregoing opinion.
As to the Subpoenas Duces Tecum directed to Judge Anderson and Cavanaugh, this opinion constitutes a further order of this court superseding the April 4, 2008, protective order in Morrison v. Anderson. Judge Tatum’s rulings pn those subpoenas are affirmed in part and reversed in part.
Affirmed in part, reversed in part, and remanded to the district court for further proceedings consistent with this opinion. | [
-80,
-20,
-3,
-68,
56,
-62,
112,
2,
81,
-93,
53,
115,
45,
-6,
-124,
123,
-34,
61,
68,
97,
-59,
-74,
119,
-23,
-10,
115,
-14,
-44,
-77,
-33,
-26,
-4,
73,
97,
-118,
-43,
70,
-54,
83,
-46,
-118,
14,
-119,
-19,
80,
64,
-92,
115,
-46,
78,
53,
63,
-29,
44,
62,
-61,
-87,
44,
-37,
-83,
0,
-80,
-84,
-107,
95,
50,
-95,
6,
-102,
-123,
-8,
62,
-112,
57,
48,
-24,
115,
-90,
-126,
52,
75,
-23,
44,
103,
98,
33,
24,
-17,
-8,
-120,
47,
79,
31,
-89,
-102,
72,
64,
-120,
-98,
-71,
100,
82,
15,
-2,
-25,
23,
127,
108,
12,
-117,
-64,
-107,
-33,
112,
24,
126,
-17,
65,
32,
113,
-111,
114,
84,
71,
58,
18,
-18,
-76
] |
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Charles T. Frahm, of Lenexa, an attorney admitted to the practice of law in Kansas in 1997. Respondent’s license to practice law in Kansas was temporarily suspended on April 1,2008; the suspension remains in effect.
On June 23, 2008, 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 July 11, 2008, an amended answer on August 26, 2009, and his proposed plan of probation on October 1, 2009. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on October 14, 2009, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 8.4(b) (2010 Kan. Ct. R. Annot. 603) (misconduct). 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
“2. On July 20, 2006, the Respondent, in an intoxicated state, drove his white Acura erratically on 1-35 in Johnson County, Kansas. The Respondent sped up and slowed down, swerving from lane to lane. Angel Zubia and his pregnant wife, Yolanda Escamilla, occupied another car on 1-35. The Respondent’s car clipped the Zubia’s car, causing the Respondent’s car to collide with the retaining wall separating the highway, his rear bumper to come off his car, and his car to spin around.
“3. The contact between the cars caused Mr. Zubia’s car to swerve out of control and to roll. The Respondent, aware that he was in an intoxicated state but unaware that Mr. Zubia’s car had been struck, drove away from the accident.
“4. Mr. Zubia suffered minor injuries. Ms. Escamilla was transported to a hospital for treatment. Ms. Escamilla also suffered minor injuries.
“5. The officers responding to the scene observed the license tag on the detached bumper. The officer learned that the license plate belonged to the Respondent.
“6. An off-duty police officer, Sgt. Kevin Cauley, driving his personal car, observed the damage to the Respondent’s car, including the fact that the Respondent’s car had no rear bumper. Sgt. Cauley also observed Respondent driving and suspected that the Respondent was intoxicated.
“7. Sgt. Cauley called the police dispatcher and followed the Respondent to his residence.
“8. Sgt. Cauley approached the Respondent and handcuffed him until on-duty police officers arrived.
“9. The Respondent denied being involved in a car accident and refused to take field sobriety tests. Later, though, at the police station, the Respondent agreed to take a breath alcohol concentration test. The Respondent’s breath alcohol concentration was .204.
‘TO. On July 21, 2006, the Johnson County District Attorney’s office charged the Respondent with driving under the influence of alcohol, reckless driving, leaving the scene of an accident, and two counts of aggravated battery. Aggravated battery is a level 8 person felony. The remaining charges are misdemeanors.
“11. On February 26, 2008, following a bench trial, the Respondent was convicted of driving under the influence of alcohol, reckless driving, leaving the scene of an accident, and two counts of aggravated battery, reckless, not intentional.
“12. On April 1, 2008, on the Disciplinary Administrator’s motion, the Kansas Supreme Court temporarily suspended the Respondent’s license to practice law in the State of Kansas, pursuant to Kan. Sup. Ct. R. 203(c)(4).
“13. On April 25, 2008, the Respondent motioned the court to vacate the temporary suspension. The Court denied the Respondent’s motion.
“14. On May 9, 2008, Johnson County District Court Judge Peter Ruddick sentenced the Respondent to serve seven days in the county jail, to serve eight months in the state prison, and to pay a fine. The Court granted the Respondent’s request for probation from the prison sentence.
“15. In return for the Respondent’s agreement not to file an appeal, the Johnson County District Attorney requested that the Court set aside the Respondent’s convictions for reckless driving and leaving the scene of an accident. The Johnson County District Court granted the request, and the Respondent’s convictions for reckless driving and leaving the scene of an accident were set aside.
“16. On May 19, 2008, the Respondent requested that the Kansas Supreme Court reconsider its order temporarily suspending the Respondent. The Court denied the Respondent’s request to reconsider.
“17. The Kansas Board for Discipline of Attorneys scheduled a Formal Hearing in this case for August 20, 2008. Prior to the hearing, counsel for the Respondent requested that the hearing be continued indefinitely for a family health issue. Because the Respondent’s license to practice law was under suspension, the Disciplinary Administrator asserted no objection. A hearing on the Formal Complaint was conducted on October 14, 2009.
“18. The Respondent’s license to practice law in the State of Kansas continues to be suspended.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.4, as detailed below.
“2. ‘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 was convicted of driving under the influence of alcohol and two counts of aggravated battery. The commission of driving under the influence of alcohol and aggravated battery adversely reflects on the Respondent’s fitness as a lawyer in other respects. Accordingly, the Hearing Panel concludes that the Respondent committed criminal acts and those criminal acts reflect directly on the Respondent’s fitness as a lawyer in other respects, in violation of KRPC 8.4(b).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“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 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.
“Duty Violated. The Respondent violated his duty to the public to maintain his personal integrity.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to the public and to the legal profession. Specifically, the Respondent’s misconduct caused injury to Mr. Zubia and Ms. Escamilla. Luckily, Mr. Zubia and Ms. Escamilla had their seat belts on at the time the Respondent’s car struck their car. Because they had their seat belts on, the injuries suffered by Mr. Zubia and Ms. Escamilla were minor. Also, luckily, the couple’s child was later bom healthy. The potential for serious injury or death in this case, however, was great. Finally, Mr. Zubia’s car suffered extensive damage.
“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 the following aggravating factor present:
“Illegal Conduct. The Respondent engaged in illegal conduct when he drove his vehicle while his breath alcohol concentration was .204 and when he struck Mr. Zubia’s car, caused Mr. Zubia’s car to roll, and caused physical injury to Mr. Zubia and Ms. Escamilla and property damage to Mr. Zubia’s car. Generally, the conduct that is prohibited by the Kansas Rules of Professional Conduct is wide ranging — some more serious and some less serious. As an officer of the court, however, it is particularly egregious for an attorney to engage in criminal conduct.
“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:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Absence of a Dishonest or Selfish Motive. The Respondent’s conduct was not motivated by dishonesty or selfishness.
“Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The Respondent testified about the problems that he suffered during the relevant time period — his broken relationship and his concern that he had cancer. As a result of the personal problems, the Respondent sought individual therapy. The day he committed the crimes, he received upsetting news regarding his former fianc. After learning the news, the Respondent drank an excessive amount of alcohol.
“Timely Good Faith Effort to Make Restitution or to Rectify Consequences of Misconduct. Following the accident, the Respondent urged his insurance company to provide Mr. Zubia and Ms. Escamilla with settlement monies. Mr. Zubia and Ms. Escamilla received approximately $50,000 in settlement proceeds.
“The Present and Past 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. The Respondent fully cooperated during the disciplinary investigation and hearing.
“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 enjoys the respect of his friends, acquaintances, and peers as evidenced by letters received by the Hearing Panel.
“Imposition of Other Penalties or Sanctions. The Respondent has suffered other penalties as a result of this matter. The Respondent has suffered a loss of income based upon the temporary suspension. The Respondent has suffered the humiliation associated with the notification that he sent to his clients, opposing counsel, and courts regarding Iris temporary suspension. While he served only seven days in jail, the Respondent faced a longer term of imprisonment in the state prison system. The Respondent paid fines and court costs and completed the terms of his probation. The Respondent repeatedly submitted to drug and alcohol tests. The Respondent served a term of probation with regard to his Missouri license to practice law. Finally, the Respondent paid attorney fees in both the criminal and disciplinary matters.
“Remorse. At the hearing on'this matter, the Respondent expressed genuine remorse. Additionally, the witnesses presented by the Respondent reinforced the Respondent’s remorse.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.’
In the opinion of the Hearing Panel, convictions for aggravated battery, level 8 person felonies, seriously adversely reflects on the Respondent’s fitness to practice law.
“RECOMMENDATION
“At the conclusion of the evidence, counsel for the Respondent recommended that no violation be found and that the case be dismissed. After the Hearing Panel concluded that a rule violation was committed, counsel for the Respondent recommended that the Respondent be informally admonished or, in the alternative, placed on probation. The Disciplinary Administrator recommended that the Respondent be indefinitely suspended.
“In order to recommend that a Respondent be placed on probation, the Hearing Panel must conclude that the Respondent developed a workable, substantial, and detailed plan of probation and provided 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; that the Respondent put 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; that the misconduct can be corrected by probation; and that placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas. Kan. Sup. Ct. R. 211(g)(3).
“The Hearing Panel is unable to recommend that the Respondent be placed on probation because placing a convicted felon on probation is not in die best interests of the legal profession and the citizens of the State of Kansas. Further, at this point, the Respondent has completed all of the terms and conditions of probation and placing the Respondent on probation would serve no purpose.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended for a period of 18 months. The Hearing Panel recommends that the effective date of the 18-month suspension be made retroactive to the date of the Respondent’s temporary suspension, April 1, 2008, allowing the Respondent to be reinstated immediately upon motion to the Court.
“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 hearing panel, and the arguments of the parties. From this record, we determine whether violations of KRPC exist and, if they do, what discipline should be imposed. In re Daugherty, 285 Kan. 1143, 1163, 180 P.3d 536 (2008). Attorney misconduct must be established by clear and convincing evidence. In re Patterson, 289 Kan. 131, 133-34, 209 P.3d 692 (2009); Supreme Court Rule 211(f) (2010 Kan. Ct. R. Annot. 327). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.’” ” In re Patterson, 289 Kan. at 134 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
This court considers the hearing panel’s findings of fact, conclusions of law, and recommendations to be advisory but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. In re Angst, 278 Kan. 500, 503-04, 102 P.3d 388 (2004). When the record before the hearing panel supports its findings of fact and those findings support its conclusions of law, this court typically adopts the panel’s findings of fact and conclusions of law. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009).
The respondent filed exceptions to the report and recommendations of the hearing panel. The matter is now before this court, pursuant to Supreme Court Rule 212 (2010 Kan. Ct. R. Annot. 344), for review of the following: (1) whether the facts establish a violation of KRPC 8.4(b) by clear and convincing evidence; (2) whether the hearing panel’s finding 15, that the criminal court set aside the respondent’s convictions for reckless driving and leaving the scene of an accident for his agreement not to file an appeal, is supported by clear and convincing evidence; and (3) whether the recommended discipline is more harsh than justified by the facts of the case.
KRPC 8.4(b) Violation
KRPC 8.4 provides:
“It is professional misconduct for a lawyer to:
“(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”
The hearing panel found:
“In tliis case, the Respondent was convicted of driving under the influence of alcohol and two counts of aggravated battery. The commission of driving under the influence of alcohol and aggravated battery adversely reflect on the Respondent’s fitness as a lawyer in other respects.”
The respondent challenges this conclusion. He argues that his conduct was not intentional, had no nexus with the practice of law, and did not display a pattern of criminal behavior. He maintains that if his crimes reflect adversely on his fitness as a lawyer “in other respects,” then every crime falls under KRPC 8.4(b), rendering the quahfying language “that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” meaningless excess verbage.
In the first place, the respondent’s criminal conduct was neither trivial nor technical. He committed multiple transgressions. He was driving while highly intoxicated. He caused both personal injury and property damage. He left the scene of the accident because he hoped he could thereby avoid prosecution for driving while intoxicated. Finding that his criminal act reflected adversely on his fitness as a lawyer does not require a conclusion that all criminal acts reflect adversely on professional fitness.
Nevertheless, a Kansas attorney who commits a felony is likely to face disciplinary measures. In In re Trester, 285 Kan. 404, 414, 172 P.3d 31 (2007), this court noted:
“[W]hen an attorney has been convicted of a felony offense, this court, with very few exceptions, imposes either suspension or disbarment as a sanction. In re Howlett, 266 Kan. 401, 403, 969 P.2d 890 (1998); see also In re Nelson, 255 Kan. 555, 563, 874 P.2d 1201 (1994) (citing several cases of attorney sanctions following felony convictions); see also Supreme Court [Rule] 203(c) (2006 Kan. Ct. R. An-not. 243) (requiring temporary suspension pending final disciplinary action if respondent has been convicted of a felony).”
Respondent argues there was no nexus between his criminal conduct and his professional fitness because the crimes had minor consequences and because they did not relate directly to the practice of law. This court has held, however, that the legal profession by its nature demands compliance with the laws governing the behavior of citizens:
“Any violation of the law creates some question about the trust and confidence that the public may reasonably be expected to place in a lawyer. No matter what the violation, some discipline may be required to deter the attorney involved and other members of the bar.” In re Robertson, 256 Kan. 505, 507, 886 P.2d 806 (1994).
In In re Laskowski, 282 Kan. 710, 147 P.3d 135 (2006), this court noted that the respondent was convicted of felony DUI. “Although not a breach of a professional duty to a client, it violated his primary duty to the court and the bar, and it erodes the public confidence in die judicial system.” In re Laskowski, 282 Kan. at 713-14.
In In re Hoare, 155 F.3d 937 (8th Cir. 1998), the court considered discipline of an attorney who drove while intoxicated on the wrong side of a highway and caused a fatal accident. The court concluded:
“Such conduct, when committed by an officer of the court, constitutes a failure to maintain personal integrity, reflects upon one’s fitness to practice law, and brings the bench and the bar into disrepute. [Citations omitted.] Offending conduct need not involve direct questions of honesty or trustworthiness, nor have an immediate relation to the daily business conducted by an attorney, in order to warrant substantial discipline. [Citations omitted.]” In re Hoare, 155 F.3d at 940.
Attorneys are officers of the court. Society may reasonably expect that the trust and confidence placed on those that practice law also requires compliance with the law. We need not reach the question of whether a felony conviction is a per se violation of KRPC 8.4(b) because under these facts, respondent’s conduct clearly constitutes a KRPC 8.4(b) violation.
Hearing panel finding 15
The hearing panel made the following factual finding:
“15. In return for the Respondent’s agreement not to file an appeal, the Johnson County District Attorney requested that the Court set aside the Respondent’s convictions for recldess driving and leaving the scene of an accident. The Johnson County District Court granted the request, and the Respondent’s convictions for recldess driving and leaving the scene of an accident were set aside.”
The Disciplinary Administrator suggests that the hearing panel’s factual findings should be adopted when the evidence supports the findings. The evidence does not support one detail of the finding. Respondent points out that the convictions were set aside not only as a quid pro quo for agreeing not to appeal, but also “in the interest of justice.” This is consistent with the transcript of the sentencing hearing.
The respondent concedes that this issue is “a minor point, not at all dispositive, and only partially incorrect.” He argues, however, that the hearing panel’s finding “may tend to cast [him] in somewhat of a bad light.” He argues that he might have succeeded in winning an appeal of those two convictions and agreeing not to appeal was not merely a gift but had some legal support.
While this may be the case, it is the conduct that warrants discipline, not the technicality of the conviction. In Robertson, 256 Kan. 505, the attorney was tried for several felonies relating to purchasing cocaine from an undercover police agent. A jury found him not guilty, apparently on the basis of entrapment. The attorney was nevertheless made subject to discipline.
In a disciplinary proceeding, a criminal conviction is conclusive evidence of the commission of that crime. Supreme Court Rule 202 (2010 Kan. Ct. R. Annot. 272); In re Angst, 278 Kan. at 504. The record in the present case is silent regarding what “the interest of justice” was that led to setting aside the charges. There is no dispute that the respondent drove recklessly and left the scene of the accident. Although the convictions were set aside both for the interest of justice and in exchange for waiving an appeal, the conduct nonetheless remained the same and warrants disciplinary action.
Appropriate Sanction
The respondent contends that both the hearing panel’s recommended discipline of an 18-month suspension and the Disciplinary Administrator’s recommended discipline of indefinite suspension are harsher than the facts justify. Specifically, he takes exception to the hearing panel’s findings regarding actual injury to the public and the legal profession.
The hearing panel found:
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to the public and to the legal profession. Specifically, the Respondent’s misconduct caused injury to Mr. Zubia and Ms. Escamilla. Luckily, Mr. Zubia and Ms. Escamilla had their seat belts on at the time the Respondent’s car struck their car. Because they had their seat belts on, the injuries suffered by Mr. Zubia and Ms. Escamilla were minor. Also, luckily, the couple’s child was later bom healthy. The potential for serious injury or death in this case, however, was great. Finally, Mr. Zubia’s car suffered extensive damage.”
The respondent contends that the injuries to Zubia and Escamilla were minor, and injuries to individuals should not be considered in the same light as injuries to the public as a whole or to the legal profession as a whole. He does not explain why injuries to two individuals are not to be regarded as injuries to the public; the extension of his argument would be that an injury to the public requires a lawyer to engage in conduct that results in harm to large swaths of the population. Respondent also does not explain why injuries to individuals do not harm the legal profession. See Robertson, 256 Kan. at 507 (any violation of the law undermines trust and confidence that public places in lawyer). Furthermore, the American Bar Association Standard 3.0 quoted by the hearing panel refers to “the actual or potential injury caused by the lawyer’s misconduct.” (Emphasis added.) The potential injury from driving while intoxicated and running into other vehicles is quite high.
The respondent also argues that his conduct was unintentional and that criminal conduct should not be considered an “aggravating factor” for the criminal conduct that brought him before the hearing panel in the first place. While it might be circular to accuse him of criminal conduct and to use the existence of criminal conduct as an aggravating factor, it is the nature of the criminal conduct that is an aggravating factor. Four convictions may be an aggravating factor, as compared with one. Whether the criminal conduct was intentional is subservient to the fact that the respon dent willfully became intoxicated and put others at risk of great harm by his conduct.
In In re Laskowski, this court indefinitely suspended an attorney who was convicted on three occasions of driving while intoxicated. In re Laskowski, 282 Kan. at 714. The respondent seeks to distinguish his situation, noting that- he did not engage in a pattern of criminal conduct. Unlike the respondent in Laskowski, however, the respondent caused injury and property damage and was convicted of multiple offenses.
The American Bar Association Standards for Imposing Lawyer Sanctions set out a range of conduct and corresponding recommended disciplinary action:
“Disbarment is generally appropriate when:
“(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
“(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.” Standard 5.11.
“Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.” Standard 5.12.
“Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.” Standard 5.13.
“Admonition is generally appropriate when a lawyer engages in any other conduct that reflects adversely on the lawyer’s fitness to practice law.” Standard 5.14.
The respondent notes that ABA Standard 5.11, relating to disbarment, does not apply because his conduct did not directly interfere with the system of justice, was not a major felony, and was not intentional. He contends that ABA Standard 5.12, relating to suspension, does not apply because his conduct did not “seriously adversely reflect” on his fitness to practice. He also contends that ABA Standard 5.13, relating to reprimand, does not apply because his conduct did not involve dishonesty, fraud, deceit, or misrepresentation. By default, it is the respondent’s position that the only remaining discipline would stem from ABA Standard 5.14, admonition.
This court is not persuaded by respondent’s parsing of the ABA Standards. Nor do respondent’s exceptions to the panel’s findings alter our determination of the appropriate discipline to be imposed. As discussed above, the respondent’s conduct was in violation of KRPC 8.4(b), a finding which requires, at a minimum, that the criminal act adversely reflect on the lawyer’s fitness to practice law. Under the facts of this case, respondent’s misconduct seriously adversely reflects on his fitness to practice law.
“The panel’s recommendation for discipline is advisory only, and it does not constrain this court from imposing a greater or lesser penalty.” In re Depew, 290 Kan. 1057, 1073, 237 P.3d 24 (2010). The respondent’s criminal conduct was neither trivial nor technical. He committed multiple transgressions. He was driving while highly intoxicated. He caused both personal injury and property damage. He left the scene of the accident because he hoped he could thereby avoid prosecution for driving while intoxicated.
Conclusion and Discipline
It Is Therefore Ordered that Charles T. Frahm be suspended from the practice of law in the state of Kansas for a period of 3 years to be effective from April 1, 2008, which was the date of his temporary suspension, in accordance with Supreme Court Rule 203(a)(2) (2010 Kan. Ct. R. Annot. 276).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2010 Kan. Ct. R. Annot. 370), and in the event the respondent would seek reinstatement, he shall comply with Supreme Court Rule 219 (2010 Kan. Ct. R. Annot. 370).
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.
Patricia Macke Dick, District Judge, assigned. | [
-80,
-22,
72,
-52,
15,
97,
-72,
12,
89,
-45,
-9,
115,
-19,
-23,
-123,
123,
-54,
125,
84,
121,
-57,
-74,
87,
-128,
-90,
-13,
-8,
-44,
-70,
79,
-28,
-88,
91,
48,
-126,
-107,
6,
74,
-123,
92,
-126,
6,
-119,
-16,
91,
-127,
-80,
46,
-109,
15,
49,
15,
-94,
46,
17,
99,
-87,
72,
-97,
-84,
-127,
-15,
-35,
-107,
122,
22,
-93,
-124,
-100,
-121,
88,
59,
-120,
57,
32,
-24,
114,
-78,
-118,
-12,
111,
-119,
-123,
38,
102,
37,
25,
-95,
-92,
-120,
15,
-72,
29,
38,
-71,
81,
107,
12,
-106,
-99,
101,
54,
15,
124,
-27,
69,
89,
-32,
-113,
-53,
-112,
-111,
-49,
100,
-52,
23,
-17,
-121,
32,
97,
-123,
-10,
94,
-43,
114,
27,
-49,
-76
] |
In a letter signed August 18, 2010, addressed to the Clerk of the Appellate Courts, respondent James F. Stanley, 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 (2009 Kan. Ct. R. Annot. 353).
At the time the respondent surrendered his license, a panel hearing was pending on two complaints in accordance with Supreme Court Rule 211 (2009 Kan. Ct. R. Annot. 321). The complaints alleged that respondent violated Kansas Rules of Professional Conduct 1.1 (2009 Kan. Ct. R. Annot. 410) (competence); 1.3 (2009 Kan. Ct. R. Annot. 426 (diligence); 1.4 (2009 Kan. Ct. R. Annot. 443) (communication); 1.5(d) and (e) (2009 Kan. Ct. R. Annot. 460) (fees); 1.8(a) and (j) (2009 Kan. Ct. R. Annot. 483) (conflict of interest, acquiring interest in cause of action); 8.4 (2009 Kan. Ct. R. Annot. 602) (misconduct); and Supreme Court Rule 207 (2009 Kan. Ct. R. Annot. 303) (failure to cooperate with Disciplinary Administrator).
This court, having examined the files of the office of the Disciplinary Administrator, finds the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that James F. Stanley be and 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 James F. Stanley 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 (2009 Kan. Ct. R. Annot. 361).
Dated this 23rd day of August, 2010. | [
-80,
-8,
-34,
93,
24,
-95,
-78,
61,
89,
-45,
103,
83,
-17,
-37,
21,
107,
67,
45,
16,
107,
-59,
-78,
94,
-64,
38,
-5,
-47,
-35,
-71,
79,
-9,
-67,
72,
-80,
74,
85,
70,
-118,
-119,
-100,
-114,
0,
9,
-16,
-37,
-127,
-76,
41,
-110,
27,
49,
-98,
-13,
58,
29,
-61,
-88,
44,
-5,
-52,
81,
-111,
-101,
29,
110,
1,
-79,
36,
-100,
-121,
92,
47,
-116,
25,
0,
-7,
115,
54,
6,
-10,
79,
-71,
9,
103,
114,
48,
25,
-89,
-92,
-119,
14,
56,
-99,
-30,
-15,
-51,
107,
-120,
-98,
-99,
97,
22,
43,
124,
-32,
6,
21,
108,
31,
-53,
-48,
-77,
-98,
87,
-114,
27,
-5,
-58,
16,
84,
-109,
-11,
78,
83,
56,
23,
-50,
-12
] |
On February 2, 2007, the court placed the respondent, Russell W. Hasenbank, on probation for a period of 4 years with specific conditions of supervision and reporting. In re Hasenbank, 283 Kan. 155, 151 P.3d 1 (2007). The 4-year probationary period was made retroactive to June 1, 2006.
On March 3, 2011, the respondent filed a motion for discharge from probation along with affidavits from the respondent and the supervising attorney demonstrating compliance during the period of probation.
The Disciplinary Administrator has filed a response to the respondent’s motion confirming that the respondent has fully complied with all conditions imposed upon him by the court and recommending that the respondent be discharged from probation.
This court, having reviewed the motion, the affidavits, and the recommendation of the office of the Disciplinary Administrator, finds that the respondent should be discharged from probation.
It Is Therefore Ordered that the respondent is hereby discharged from probation and from any further obligation in this matter and that this proceeding is closed.
It Is Further Ordered that this order shall be published in the Kansas Reports and that the costs herein shall be assessed to the respondent. | [
-108,
-24,
-100,
-34,
27,
100,
-70,
-106,
121,
-69,
37,
80,
-19,
-122,
5,
123,
-61,
109,
-47,
105,
-59,
-73,
119,
-63,
-26,
-1,
-40,
-43,
-2,
95,
-28,
-107,
78,
112,
-118,
-75,
-122,
-56,
-13,
92,
-122,
5,
-101,
-4,
89,
67,
52,
103,
19,
15,
49,
93,
-69,
110,
25,
110,
73,
44,
-117,
45,
-112,
-91,
-127,
21,
-5,
2,
-125,
37,
22,
67,
-48,
63,
-104,
57,
41,
-24,
114,
-78,
-126,
116,
15,
-119,
-92,
119,
98,
35,
21,
-18,
-84,
-119,
30,
58,
-115,
-58,
-103,
-39,
75,
13,
-108,
-68,
86,
22,
39,
-8,
102,
-123,
55,
-20,
-125,
-54,
-112,
-111,
79,
53,
94,
27,
-29,
33,
48,
81,
-116,
-26,
88,
-42,
112,
25,
-98,
-105
] |
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Patrick S. Bishop, of Fort Scott, Kansas, an attorney admitted to the practice of law in Kansas in 1979. On March 28, 2008, the respondent’s license to practice law was indefinitely suspended by the Supreme Court.
On July 15, 2009, 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 to the formal complaint on September 27, 2009. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on October 1, 2009, where the respondent was personally present. The hearing panel determined that respondent violated KRPC 1.1 (2009 Kan. Ct. R. Annot. 410) (competence); 1.3 (2009 Kan. Ct. R. Annot. 426) (diligence); 1.4(a) (2009 Kan. Ct. R. Annot. 443) (communication); 8.4(c) (2009 Kan. Ct. R. Annot. 602) (engaging in conduct involving misrepresentation); and Kansas Supreme Court Rule 211(b) (2009 Kan. Ct. R. Annot. 321) (failure to file answer in disciplinary proceeding). 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
“2. Sometime prior to October, 2005, Frank and Laura Peterson retained the Respondent to file a Chapter 7, no asset, bankruptcy in their behalf. Initially, Mrs. Peterson provided the Respondent a list of creditors on a yellow piece of paper.
“3. Later, but prior to the bankruptcy being filed, Mrs. Peterson realized that she had omitted a creditor from the list, Frisbie Chiropractic. Mrs. Peterson contacted the Respondent and orally informed him of the additional creditor. [Footnote: At the hearing on this matter, Mrs. Peterson’s testimony and the Respondent’s testimony conflicted. Based upon all the evidence presented to the Hearing Panel, including the demeanor of the witnesses, the Hearing Panel has concluded that Mrs. Peterson’s testimony is credible while the Respondent’s testimony lacks credibility.] Mrs. Peterson informed the Respondent that Frisbie Chiropractic is located in Oswego, Kansas. Mrs. Peterson offered to provide the Respondent with the address of the creditor, however, the Respondent informed her that that would not be necessary, that he would locate the address himself.
“4. Beginning September 1, 2004, the United States Bankruptcy Court for the District of Kansas required all filings to be done electronically. In order to be eligible to file bankruptcy cases electronically, an attorney was required to complete training, obtain a user name, and a password. The Respondent never became eligible to file bankruptcy cases electronically. As a result, the Respondent was not eligible to file Mr. and Mrs. Peterson’s bankruptcy case.
“5. Erik Klutman of Klutman & Weeks was eligible to file bankruptcy cases electronically. The Respondent made an agreement with attorney Mr. Klutman, whereby Mr. Klutman agreed to file bankruptcy cases electronically in behalf of the Respondent. Specifically, Mr. Klutman agreed to file the bankruptcy case in behalf of Mr. and Mrs. Peterson.
“6. The Respondent drafted the bankruptcy pleadings with the information that Mr. and Mrs. Peterson provided. However, the Respondent failed to include Frisbie Chiropractic as a creditor. The Respondent provided the draft, along with some notes, to Mr. Klutman.
“7. Significant changes in the bankruptcy law went into effect October 17, 2005. As a result, the Respondent directed Mr. Klutman to file Mr. and Mrs. Peterson’s bankruptcy on October 16, 2005.
“8. Mr. Klutman electronically filed Mr. and Mrs. Peterson’s bankruptcy on October 16, 2005. The petition did not include Frisbie Chiropractic as a creditor.
“9. On February 9, 2006, the Court discharged Mr. and Mrs. Peterson’s debts in bankruptcy. However, the bankruptcy case remained open at that time.
“10. On August 7, 2006, Michael Hassenplug filed suit against Mrs. Peterson in behalf of Frisbie Chiropractic, Labette County District Court, case number 06LM398PA.
“11. Mrs. Peterson was properly served with a summons in the case on August 15, 2006. Thereafter, Mrs. Peterson forwarded the summons to the Respondent seeking assistance, as she believed that this debt had been discharged in bankruptcy.
“12. On September 7, 2006, the Respondent filed an answer to the Petition. In the answer, the Respondent asserted the affirmative defense that the debt was discharged in bankruptcy.
“13. At the time the Respondent filed the Answer, he did not believe that Mrs. Peterson had a valid defense to the suit. The Respondent clearly stated his position in his response to the initial complaint filed by Mrs. Peterson:
‘. . . Thus I believed that there was no defense to the petition. If I thought there was a defense I would have had to explain to Ms. Peterson that the cost of defending the same would have been greater than the underlying claim, particularly since the lawsuit was filed in Labette County, Kansas, some 60 miles from where I worked.’
During the disciplinary investigation, the Respondent submitted to a sworn statement. During his sworn statement, the Respondent testified that the reason he alleged the affirmative defense in the Answer was because he thought that the claim might ‘go away.’
‘Q. ... At that time you raised the defense of discharge of bankruptcy?
‘A. Correct. Uh-huh.
‘Q. What did you do to try to advance that defense on behalf of Ms. Peterson?
‘A. I’m not sure I could have done anything. It was not discharged in bankruptcy, so—
‘Q. Okay. Did you — when you became aware of this lawsuit—
A. To be perfectly—
‘Q. Go ahead.
‘A. To be pérfecdy honest, if I raised that, might just go away. . . .’
“14. After Mr. Hassenplug received the Respondent’s answer, Mr. Hassenplug attempted to verify that Frisbie Chiropractic had been included as a creditor in Mrs. Peterson’s bankruptcy. When Mr. Hassenplug checked, he learned that Frisbie Chiropractic had not been included in the bankruptcy filings.
“15. Mr. Hassenplug contacted the Respondent and informed him that Frisbie Chiropractic had not been included as a creditor in Mrs. Peterson’s bankruptcy. At that time, without aúthorify from his client, the Respondent agreed to confess judgment in behalf of Mrs. Peterson.
“16. Mrs. Peterson’s bankruptcy case remained open. Despite that fact, the Respondent did not attempt to amend the list of creditors in Mrs. Peterson[’s bankruptcy]. Additionally, the Respondent conducted no research into whether an unlisted creditor could be added as a creditor following discharge but before a bankruptcy case was closed, in a no asset case.
‘17. The Labette County District Court scheduled Frisbie Chiropractic case for a case management conference on October 25, 2006. Prior to the scheduled conference, Mr. Hassenplug notified the Court that the case had settled and that a journal entry would be submitted.
“18. On October 30, 2006, Mr. Hassenplug wrote to the Respondent and enclosed a proposed journal entry.
“19. However, the journal entry was not submitted to the Court. Thereafter, in December, 2006, the Clerk of the District Court notified the parties that the case would be dismissed for a lack of prosecution. On January 17,2007, the Court dismissed the action.
“20. On February 23, 2007, Mr. Hassenplug filed a motion for reinstatement, asserting that the Respondent had neglected to sign and return the journal entry of judgment as promised.
“21. On February 28, 2007, the United States Bankruptcy Court for the District of Kansas closed, or terminated, Mr. and Mrs. Peterson’s bankruptcy case.
“22. In March, 2007, the Respondent signed and returned the journal entry of judgment confessing judgment in behalf of Mrs. Peterson. The Respondent did not have authority to enter the journal entry in behalf of Mrs. Peterson.
“23. On March 30,2007, the Labette County District Court granted the plaintiffs motion for reinstatement of the Frisbie Chiropractic case and, based on the agreed entry of judgment signed by the Respondent, entered judgment against Mrs. Peterson.
“24. Thereafter, Mr. Hassenplug began collection proceedings against Mrs. Peterson.
“25. On August 7, 2007, after receiving a garnishment notice, Mrs. Peterson wrote to the Respondent requesting his assistance with resolving the collection of the judgment of Frisbie Chiropractic. The Respondent did not respond to Mrs. Peterson’s letter.
“26. On September 26, 2007, Mrs. Peterson again wrote to the Respondent seeking his assistance. Again, the Respondent failed to respond to Mrs. Peterson’s letter.
“27. On November 7, 2007, Mrs. Peterson wrote to the Respondent for a third time. Again, the Respondent did not respond to Mrs. Peterson’s request for assistance.
“28. On March 28, 2008, the Kansas Supreme Court indefinitely suspended the Respondent from the practice of law.
“29. On May 22,2008, Mrs. Peterson wrote the Honorable Robert J. Fleming regarding this matter. Judge Fleming forwarded her letter to the Disciplinary Administrator.
“30. Throughout the period of representation of Mrs. Peterson in the Frisbie Chiropractic suit, Mrs. Peterson telephoned the Respondent on many occasions. Each time, Mrs. Peterson left a message for the Respondent to return the call. The Respondent did not return Mrs. Peterson’s calls.
“31. After being notified of the complaint received by the Disciplinary Administrator, the Respondent provided a written response.
“32. Thereafter, on July 15, 2009, the Disciplinary Administrator filed a Formal Complaint. The Respondent did not file an Answer to the Formal Complaint until September 29, 2009, two days before the hearing on the Formal Complaint.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 8.4, and Kan. Sup. Ct. R. 211, as detailed below.
“2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Respondent failed to provide Mrs. Peterson competent representation when he failed to amend her list of creditors to include Frisbie Chiropractic. The Respondent learned of the suit in August, 2006, when Mrs. Peterson forwarded a copy of the summons to the Respondent. At that time, Mr. and Mrs. Peterson’s bankruptcy case remained open.
“3. According to Local Bankruptcy Rule 1009.1, a debtor may amend the list of creditors by serving an amendment to the schedule on the United States trustee. The Respondent either did not know about Local Bankruptcy Rule 1009.1 or interpreted that rule to mean that a debtor may amend the list of creditors only prior to discharge. However, the rule does not restrict amendments to a time prior to discharge. According to Darcy Williamson, a bankruptcy practitioner and a bankruptcy trustee, Local Bankruptcy Rule 1009.1 would have permitted the Respondent to amend Mr. and Mrs. Peterson's bankruptcy schedules to include Frisbie Chiropractic as a creditor.
“4. Additionally, case law existed for the Respondent to argue that the Frisbie Chiropractic debt was discharged even without notice because Mr. and Mrs. Peterson’s bankruptcy was a no asset bankruptcy. In re Caldwell, Case No. 98-40285-7.
“5. By failing to seek to have the Frisbie Chiropractic debt discharged, the Respondent failed to provide Mr. and Mrs. Peterson with competent and thorough representation. Because the Respondent failed to provide Mr. and Mrs. Peterson competent and thorough representation, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“6. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent faded to diligendy and prompdy represent Mrs. Peterson in the Frisbie Chiropractic suit. The Respondent should have taken appropriate steps to have the debt discharged in bankruptcy. Instead of providing diligent representation to Mrs. Peterson, die Respondent did nothing. 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.
“7. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and prompdy comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to return Mrs. Peterson’s telephone calls when he failed to respond to her written correspondence and when he allowed judgment to be taken against her witiiout her knowledge. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“8. ‘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 filed the Answer in the Frisbie Chiropractic case. He alleged that the debt had been discharged when he believed that it had not been. He made the allegation to see if it would ‘go away.’ As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).
“9. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) provides the requirements:
‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinaiy Administrator or the hearing panel.’
In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a timely written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“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 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.
“Duty Violated. The Respondent violated his duty to his client to provide competent and diligent representation and adequate communication. The Respondent violated his duty to the public and legal profession to maintain his personal integrity. Finally, the Respondent violated his duty to the legal profession to comply with the Rules of the Kansas Supreme Court.
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to Mrs. Peterson.
“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 the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has previously been disciplined.
“On April 14, 2004, the Respondent entered into a Diversion Agreement with the Disciplinaiy Administrator’s Office for having violated KRPC 1.1, KRPC 1.2, KRPC 1.3, and KRPC 1.4. Pursuant to Kan. Sup. Ct. R. 203(d)(2)(vi), the Respondent’s prior participation in the Attorney Diversion Program is to be considered as prior discipline.
“On March 28, 2008, the Kansas Supreme Court indefinitely suspended the Respondent from the practice of law for having violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.2, KRPC 8.1(b), KRPC 8.4(c), KRPC 8.4(d), and Kan. Sup. Ct. R. 207(b).
“Dishonest or Selfish Motive. The Respondent was not honest in the answer he filed on behalf of Mrs. Peterson in the Frisbie Chiropractic case. Additionally, the Respondent provided false testimony in his sworn statement to Mr. Kluin and to the Hearing Panel during the hearing on this matter. Accordingly, the Hearing Panel concludes that the Respondent’s misconduct was motivated by dishonesty or selfishness.
“A Pattern of Misconduct. The Respondent engaged in misconduct since March, 1999, and continuing through 2007. The pattern of misconduct includes two separate types of misconduct. First, from 1999, through 2007, the Respondent failed to provide competent representation, diligent representation, and adequate communication to his clients. Second, the Respondent provided misleading testimony in the disciplinary proceedings in 2007 and again in this case. Accordingly, the Hearing Panel concludes that the Respondent has engaged in a pattern of misconduct. In this case, tire conclusion that the Respondent has engaged in a pattern of misconduct is a significant aggravating factor.
“Multiple Offenses. The Respondent engaged in multiple offenses by violating KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 8.4, and Kan. Sup. Ct. R. 211.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent engaged in bad faith obstruction of the disciplinary proceeding by fading to provide an Answer to the Formal Complaint until two days before the scheduled hearing. The Respondent’s failure in this regard is exacerbated by the fact that the Respondent participated in a disciplinary hearing two years earlier.
“Submission of False Evidence, False Statements, or Other Deceptive Practices During the Disciplinary Process. The Respondent submitted false evidence, made false statements, and engaged in deceptive practices during the disciplinary investigation and during hearing on the Formal Complaint.
“First, during the Respondent’s sworn statement taken by Mr. Kluin, the Respondent testified as follows:
‘Q. You’re indicating that Laura provided you with the name of Frisbie Chiropractic Clinic but didn’t provide you with an address?
‘A. She didn’t even know what town he was in. I — why I remember that, I couldn’t believe it.
‘Q. Did you look in the phone book to see if you could find an address?
‘A. Yeah, I did. Still don’t know the address.
‘Q. What else did you do to try to locate an address for Frisbie Chiropractic?
‘A. Told her to get her — I always explain to my clients — there’s one other piece of correspondence that I don’t have. And I’m sure, whenever I had a client talk to me about a bankruptcy, I gave them a letter and forms to hand-fill out. Very explicit in that letter, if you don’t list them by name and address you don’t get discharged. I mean, she got that letter. I know that she did.
‘Always kept — I always kept — what I did all those years, is I basically copied the petition. And then just ha[ve] them fill it in. And I always kept those things. Obviously, Mr. Klutman didn’t. But she was aware of the facts. She had to provide me with that information or she necessarily wouldn’t be granted discharge.
‘Q. My question was — ■
‘A. Okay.
‘Q. But my question wasn’t that.
‘A. Yeah.
‘Q. I’m not asking about whether or not she knew that or not. I assume you told her that?
‘A. Yes. Absolutely.
‘Q. My question was, you’ve had a client who tells you, I’ve got a Frisbie Chiropractic debt but I don’t know where the person’s located. My question was, what did you do to try to find the address—
‘A. I got on the Internet. Looked in the phone book.
‘Q. My question: What did you do to try to locate an address for Frisbie Chiropractic?
‘A. Probably got out the Craw-Kan phone book. And maybe got on the Internet. Other than that, I doubt I did anything. I know I told Laura more than once I needed the address.’
“Conversely, at the hearing on the Formal Complaint, the Respondent testified as follows:
‘Oh, Mr. Kluin inquired as to whether I tried to track down Frisbee Chiropractic. And — and yeah, I mean, I did on a — on a very limited basis. He said all I did is look in he [sic] Fort Scott phonebook, that’s not true. I looked in the • — • and it’s not a big thing, but I looked in what’s call [sic] the Craw Kan phonebook, which is a regional phonebook. I didn’t see Frisbee [sic] Chiropractic in - in the phonebooks that I had available. I didn’t find it on the internet [sic], I will admit I didn’t think to go to the Secretary of State’s website or anything like that. I did not find Frisbee [sic] Chiropractic back in October — or any point in time prior to — prior — prior to October of 2006 because I didn’t have a reason to look for it. Again, the client never broached that subject again.
‘I probably — I’ll be honest with you, I probably had that bankruptcy petition for the better part of a year before it was filed. And I — frankly, if— if Frisbee [sic] Chiropractic was out there, I never gave it a second thought so that I would have no reason to get on the internet [sic] to —• to ■— I mean, my — my looking for Frisbee [sic] Chiropractic was after, you know, you know, I got the — I got the petition, that kind of thing. I didn’t even look then obviously because it was right in front of me. But the fact of the matter is, I had no reason to look for Frisbee [sic] Chiropractic at any point in time prior to October of — of 2006.’
“Mrs. Peterson knew what town Frisbie Chiropractic was located in. The car accident which lead to Mrs. Peterson’s need for chiropractic services occurred in Oswego, Kansas. Mrs. Peterson went to Frisbie Chiropractic for chiropractic serv ices in Oswego, Kansas, on at least six occasions. At the time, Mrs. Peterson worked in Oswego, Kansas. The Respondent’s testimony that Mrs. Peterson did not know where Frisbie Chiropractic is clearly false.
“Additionally, the Respondent’s testimony regarding what measures he took to locate Frisbie Chiropractic is also clearly false. At the sworn statement, he testified that when Mrs. Peterson did not provide it, he attempted to locate it. At the hearing on this matter, he testified that he had no need to find Frisbie Chiropractic’s address until after the suit was filed. He would have had no need to find their address in conjunction with the filing of the lawsuit. He would have needed to find the address in preparation for the filing of the bankruptcy. Accordingly, tire Hearing Panel concludes that the Respondent testified falsely during the disciplinary process.
“The conclusion that the Respondent submitted false statements during the disciplinary process is consistent with the opinion of the Kansas Supreme Court in the Respondent’s previous disciplinary case:
‘Regarding whether there was a completed QDRO, in his brief to the court Bishop explains he sent a proposed QDRO to the plan administrator, and the plan administrator rejected the proposed order. Bishop states he prepared a “modified one that would have undoubtedly been accepted if submitted, which it was not.” He implies that having modified the QDRO he had ‘completed’ the QDRO. This assertion is contrary to other explanations Bishop gave regarding the QDRO. In his August 2005, letter to the Fletchers, after explaining there would be no trial in the personal injury action, Bishop stated: “I have sent another QDRO to Ennis Business Forms so hopefully Diana’s matter will finally be resolved.” A different explanation is found in Bishop’s answer to the supplement to the formal complaint in which he stated that after the first QDRO was rejected by the plan administrator he “did not prepare a corrected QDRO that would have been approved by tire plan administrator.” Nevertheless, even if we accept that he corrected the QDRO, we cannot accept Bishop’s argument that this was a “completed” QDRO. His argument ignores reality and the potential harm Bishop’s lack of action could have had; a draft QDRO tucked away in a file did nothing to protect Mrs. Fletcher’s interest in her ex-husband’s stock and pension plan. There is considerable evidence that Mrs. Fletcher had to consult with another attorney in order to obtain a valid, “completed” QDRO.’ [285 Kan. at 1107.]
“Refusal to Acknowledge Wrongful Nature of Conduct. At the hearing on this matter, the Respondent admitted that he failed to timely file an Answer. However, the Respondent denied that his actions violated any other rules of professional conduct. As a result, the Hearing Panel concludes that the Respondent refused to acknowledge the wrongful nature of his conduct.
“Vulnerability of Victim. Mr. and Mrs. Peterson are individuals of limited financial means and as such were vulnerable to the Respondent’s misconduct.
“Substantial Experience in the Practice of Law. The Respondent was a licensed Kansas attorney from April 20, 1979, to March 28, 2008. As such, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law.
“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:
“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 Hearing Panel received three character letters from the Respondent’s colleagues, Gilbert E. Gregoiy, Charles Gentry, and Gayla Mason.
“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:
(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; ....
‘4.51 Disbarment is generally appropriate when a lawyer’s course of conduct demonstrates that the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer’s conduct causes injury or potential injury to a client.
‘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, the public, or the legal system.
‘8.1 Disbarment is generally appropriate when a lawyer:
(b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be disbarred. The Respondent recommends that the Hearing Panel find that he violated only Kan. Sup. Ct. R. 211(b) and that the remaining violations be dismissed. Additionally, the Respondent recommended he be censured or that he be further suspended. Finally, the Respondent requested that he not be disbarred.
“The Respondent is currently suspended from the practice of law for an indefinite period of time. Pursuant to Kan. Sup. Ct. R. 219(i), the Respondent would be eligible to apply for reinstatement on March 28, 2011.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be disbarred.
“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 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 Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 337). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725,188 P.3d 1 [2008]). 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. In addition, respondent elected not to file any exceptions to the hearing panel’s final hearing report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(d) (2009 Kan. Ct. R. Annot. 337). We therefore adopt the panel’s findings and conclusions.
Conclusion and Discipline
It Is Therefore Ordered that Patrick S. Rishop be disbarred from the practice of law in the state of Kansas, effective on filing of this opinion, in accordance with Supreme Court Rule 203(a)(1) (2009 Kan. Ct. R. Annot. 272).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361), and in the event the respondent would seek reinstatement, he shall comply with Supreme Court Rule 219 (2009 Kan. Ct. R. Annot. 376).
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.
Patricia Macke Dick, District Judge, assigned. | [
-112,
-24,
-39,
-98,
10,
97,
58,
42,
89,
-111,
119,
118,
-19,
-53,
12,
111,
-61,
109,
-48,
121,
69,
-78,
58,
-64,
102,
-5,
-8,
-43,
-80,
111,
-28,
-99,
73,
49,
-118,
-91,
6,
-118,
-43,
28,
-114,
2,
9,
-16,
89,
-64,
-76,
107,
-110,
13,
117,
94,
115,
44,
54,
79,
40,
40,
127,
-83,
-64,
-48,
-103,
21,
107,
83,
-93,
53,
24,
103,
-40,
47,
-120,
-72,
2,
-24,
51,
-74,
10,
-44,
79,
-103,
104,
102,
98,
35,
57,
-19,
-92,
-100,
14,
24,
-115,
38,
-111,
89,
99,
9,
-74,
-67,
117,
84,
35,
-4,
-26,
-60,
63,
-20,
15,
-54,
-36,
-109,
31,
116,
-100,
3,
-17,
-126,
48,
17,
-127,
-30,
94,
-41,
51,
27,
-82,
-77
] |
The opinion of the court was delivered by
Luckert, J.:
In this driving under the influence of alcohol (DUI) criminal proceeding, the district court suppressed the results of a breath test for alcohol after concluding the testing device was not properly certified. The district court reasoned the device’s certificate, which was dated as being effective from January 15, 2008, until December 31, 2008, was effectively revoked in March 2008 when the certifying agency substantively changed the certification requirements, adopted new regulations, and revoked the regulations that had governed the January certification. The district court further found that the testing device had not been recertified at the time of the breath test at issue in this case and the agency’s prior application for certification did not comply with the new regulations.
On the State’s appeal from the suppression order, we reverse and conclude the January certification remained valid because K.S.A. 77-425, a savings statute, preserves rights and remedies vesting under a revoked rule or regulation and because the new regulations do not have retroactive application.
Facts
This case arose from the following facts. On July 26, 2008, a law enforcement officer stopped Sean R. Emesti (Emesti) for driving over the speed limit. After investigating Emesti for DUI, the officer arrested Emesti and transported him to jail for further testing. At the jail, Ernesti agreed to submit to a breath test on the Lawrence Police Department’s (LPD) Intoxilyzer 8000. He failed the breath test when the result came back at .138 grams of alcohol per 210 liters of breath. After the breath test was completed, the arresting officer initialed paragraph 9 of the DC-27 form, specifically attesting that “[t]he testing equipment used was certified by the Kansas Department of Health and Environment [KDHE].”
Certification
The certification that the LPD possessed at the time of the breath test stated that the LPD “has met the requirements of K.A.R. 28-32-4 for testing of human breath for alcohol for law enforcement purposes with the Intoxilyer 8000, serial No.’s 80-002636 and 80-002650 (Mobile).” The certificate was “[effective this 15th day of January 2008” and had an expiration date of December 31, 2008. On the effective date of the certification, the certification process and the quality control of breath test devices were governed by K.A.R. 28-32-1 through K.A.R. 28-32-7. K.A.R. 28-32-4 provided in subsection (a) that each law enforcement agency meeting the standards for test equipment and procedures, as determined by the KDHE, shall receive an annual certificate, which under subsection (b) shall expire at 12 o’clock midnight on December 31 of the year it is issued.
Approximately 3 months after the LPD obtained the January 2008 certificate, KDHE revoked K.A.R. 28-32-1 through K.A.R. 28-32-7 and adopted new regulations that set different standards for certification. The new regulations, K.A.R. 28-32-8 through K.A.R. 28-32-14, became effective March 14,2008. As of July 2008, when Emesti was arrested and his breath was tested, the LPD had not recertified the Intoxilyzer 8000 under the new regulations.
In September 2008, approximately 6 months after the new regulations were adopted and approximately 2 months after Emesti’s breath test, the KDHE issued a new certificate for the LPD’s Intoxilyzer 8000. The new certificate indicated that certification was obtained pursuant to K.A.R. 28-32-9. KDHE backdated the effective date, stating it was effective from March 14, 2008, through December 31, 2008. Thus, both certificates (the one issued in January 2008 under K.A.R. 28-32-4 and the one issued in September 2008 under K.A.R. 28-32-9) indicated that certification was good through the end of the year 2008.
After the State charged Emesti with DUI, he filed a motion to suppress the breath test result based on the failure of the LPD and the KDHE to follow the new regulations, K.A.R. 28-32-8 et seq., and the KDHE’s failure to properly certify the Intoxilyzer 8000 as of Emesti’s testing date.
District Court’s Ruling
The district court agreed with Emesti’s rationale that there was no valid certification for the “agency or testing device” at the time of Emesti’s breath test because the breath testing device used to obtain Emesti’s breath alcohol content “has never been properly certified pursuant to the Kansas Administrative Regulations (K.A.R.) promulgated by the KDHE and could not have been properly certified.” The court based these findings on the fact that the LPD’s original certificate was issued under the old provisions of the regulations and on the conclusion that “substantive changes” were made to the regulations when the new provisions became effective on March 14, 2008.
The district court pointed out some differences between the old and new administrative regulations. The district court noted that these differences largely revolve around distinctions drawn between the roles and duties of the “agency,” “agency custodian,” and “device custodian.” K.A.R. 28-32-8(a), (b), (h).
The first term, “agency,” is defined in the new regulations to mean “any law enforcement agency under whose authority evidential breath alcohol tests are performed.” K.A.R. 28-32-8(a). The regulations provide for “agency certification,” and the procedure and requirements for the agency certification are set out in K.A.R. 28-32-9, the regulation cited in the LPD certificate that was back dated as being effective on March 14, 2008. The old regulations, as the district court noted, also required the “agency” to submit an application for agency certification, but the new regulations are much more detailed as to the requirements of the agency application.
In addition, the new regulations require the “agency head” to submit the agency application. K.A.R. 28-32-9; see K.S.A. 77-602(a) (defining “agency head”). In making an application for certification under the new regulations, the agency head must include “a roster of the certified operators” who perform breath tests for the agency. K.A.R. 28-32-9(b)(2). This roster requirement was not part of the old regulations, and, as Emesti stated, “[N]o roster had ever been submitted [by the LPD] under either the old or new regulations.”
The new regulations also impose duties on the “agency custodian,” who is identified as “the employee at a certified agency who is responsible for administering the certified agency’s [evidential breath alcohol test] program.” K.A.R. 28-32-8(b). The agency custodian is responsible for applying for device certification. K.A.R. 28-32-11. In contrast, under die old regulations, the “agency” applied for certification of the devices and approval of procedures, performance, and training. K.A.R. 28-32-1. The district court found that the State failed to show that there was a separate application for certification of the Intoxilyzer 8000 made by the agency custodian. Indeed, Christine Houston, the supervisor of the breath alcohol program for the KDHE, indicated that she did not know the identity of LPD’s agency custodian, and Officer Richard Nichols, the intoxilyzer custodian for the LPD, testified that he was the device custodian, not the agency custodian.
A “device custodian” is defined as “the certified operator employed by a certified agency who is responsible for oversight of the certified agency’s EBAT device.” K.A.R. 28-32-8(h). The distinction between an agency and a device custodian is significant under the new regulations because the device custodian, while responsible for overseeing the breath testing devices, does not apply for device certification. As previously noted, this duty is now imposed on the agency custodian. K.A.R. 28-32-8(b), (h); K.A.R. 28-32- 11(a). Sergeant Randy Roberts was the person in charge of the LPD’s “alcohol program” (and would appear to be the agency custodian), and there was no evidence that Sergeant Roberts had ever submitted an application for the certification of the Intoxilyzer 8000, as required by the new regulations.
In summaiy, the district court concluded: “The Kansas Department of Health and Environment and the Lawrence Police Department failed to comply with the new regulations and requirements.”
The State timely filed this interlocutory appeal pursuant to K.S.A. 22-3603, challenging the suppression ruling. This case was transferred to this court pursuant to K.S.A. 20-3018(c).
Issue 1: Did the district court have jurisdiction to REVIEW KDHE’S CERTIFICATION OF THE LPD’S Intoxilyzer 8000?
For the first time on appeal, the State raises the preliminaiy question of whether the district court had jurisdiction to review the KDHE’s certification of the LPD’s Intoxilyzer 8000. The State contends that the district court’s finding that the KDHE did not follow its own regulations in certifying the LPD and the Intoxilyzer 8000 amounted to “an unlawful judicial review of state agency action.” In a related argument, the State contends that Emesti did not have standing to challenge the certification of the device because the certification was directed to the LPD, not Emesti, and that even if Emesti had standing, he failed to first exhaust all administrative remedies.
Although the State raises these questions for the first time on appeal, jurisdictional matters may be raised at any time and even on an appellate court’s own motion. See Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 166, 210 P.3d 105 (2009); Williams v. Lawton, 288 Kan. 768, 778, 207 P.3d 1027 (2009). Further, standing is a component of subject matter jurisdiction and may be raised for the first time on appeal. Both the general issue of jurisdiction and the more specific issue of standing are issues of law. Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005).
The jurisdiction argument presented by the State begins with the correct statement that the legislature has delegated to the KDHE the task of developing regulations estabhshing procedures, testing protocols, qualifications, and standards of performing testing of human breath for law enforcement purposes. K.S.A. 2009 Supp. 65-1,107(b); see K.S.A. 65-1,109 (making it unlawful for any person to “make any test of the human breath for law enforcement purposes” unless person has complied with KDHE’s rules and regulations and the equipment complies with KDHE’s rules and regulations). In fulfilling these duties, the KDHE has developed a procedure for law enforcement and other agencies to obtain certification of breath testing devices. An appeal from such a proceeding, as tire State argues, would have to be taken under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. The KJRA requires the filing of a petition in order to begin an action for judicial review, and such a petition was not filed in this case. See K.S.A. 77-607; K.S.A. 77-610.
Although these initial steps on which the State’s argument is based are correct, those steps do not necessarily lead to the conclusion that the KJRA applies to this appeal. The KJRA only applies to appeals of “agency actions” (K.S.A. 2009 Supp. 77-603[a]), and none of the issues required to resolve this appeal involve an agency action. An “agency action” is defined to mean: “(1) The whole or a part of a rule and regulation or an order; (2) the failure to issue a rule and regulation or an order; or (3) an agency’s performance of, or failure to perform, any other duty, function or activity, discretionary or otherwise.” K.S.A. 77-602(b). Emesti does not attack the validity of or the failure to issue a mle or regulation. While he focuses on an agency order — the certification — he does not attack the process of certifying the LPD and its Intoxilyzer 8000 in January 2008 or on the decision that resulted from that application process. (Emesti does attack the issuance of the September 2008 backdated certificate but, as will be discussed further, we do not reach the validity of that action.)
Rather, the issues we resolve in this appeal were not the subject of any administrative proceeding. Hence, we conclude the State’s jurisdiction argument fails. See State v. MacKenzie, 114 Wash. App. 687, 696, 60 P.3d 607 (2002) (holding that in DUI prosecutions trial courts did not reach beyond inherent powers into matters governed by state’s Administrative Procedure Act when the courts interpreted administrative regulations on breath alcohol testing machines and addressed issues of regulations’ validity and retro-activity).
The State’s argument that Ernesti lacks standing also lacks merit. While we agree that Ernesti would lack standing in an action under the KJRA regarding the device’s certification, as a person charged with DUI based on a breath test failure, he has prudential standing to argue that the State cannot lay the necessary foundation to admit the breath test results into evidence in a criminal DUI proceeding. See State v. Strand, 261 Kan. 895, 898, 933 P.2d 713 (1997) (considering contention that blood alcohol content test results were improperly admitted because device had not been recertified following repair); State v. Pollman, 41 Kan. App. 2d 20, 27-28, 204 P.3d 630 (2008) (considering challenge that device was not listed as an approved device in regulation and noting State’s failure to show that device had been otherwise evaluated by the KDHE and met the regulations’ criteria); State v. Shaw, 37 Kan. App. 2d 485, 491-92, 154 P.3d 524 (2007) (addressing DUI defendant’s challenge to procedure requirements related to implied consent advisories under K.S.A. 8-1001); see generally State ex rel. Morrison v. Sebelius, 285 Kan. 875,892,179 P.3d 366 (2008) (discussing standing requirement).
In defining the evidentiary foundation for the admission of a test failure in a criminal DUI proceeding, this court has required the State, at a minimum, to present evidence that there was compliance with K.S.A. 2009 Supp. 8-1002(a)(3). See State v. Bishop, 264 Kan. 717, 725, 957 P.2d 369 (1998). In various cases, this court and the Court of Appeals have paraphrased these requirements and the parties quibble over the significance of words used in some of those opinions. The important concept from the cases, however, is that K.S.A. 2009 Supp. 8-1002(a)(3) establishes minimal foundation requirements. It requires the State to show:
“(A) The testing equipment used was certified by the Kansas department of health and environment; (B) the testing procedures used were in accordance with the requirements set out by the Kansas department of health and environment; and (C) the person who operated the testing equipment was certified by the Kansas department of health and environment to operate such equipment.” K.S.A. 2009 Supp. 8-1002(a)(3).
Of these three requirements, it is only the first — the certification of equipment by KDHE — that is questioned by Emesti. He does so by attacking the agency certification issued in January 2008. The Kansas Department of Revenue (KDR), in its amicus curiae brief, notes that there is no explicit requirement of agency certification in K.S.A. 2009 Supp. 8-1002(a)(3). Nevertheless, K.A.R. 28-32-1(a)(1) (revoked March 14, 2008) established a process where a law enforcement agency applied to KDHE for the certification of the test equipment and through this mechanism the equipment was certified. Cf K.A.R. 28-32-9(b) (effective March 14,2008; providing: “[1] The agency head shall specify each certified [evidential breath alcohol test] device proposed for conducting evidential breath alcohol testing.”). Further, KDHE worded the certificates (both the one effective January 15, 2008, and the one effective March 14,2008) to reflect that the LPD “has met the requirements ... for testing of human breath for alcohol for law enforcement purposes with the Intozilyzer 8000.” Consequently, while K.S.A. 2009 Supp. 8-1002(a)(3) does not require proof of agency certification, as a practical matter providing proof of device certification means that an agency applied for and received the certification. We do not, therefore, dismiss Ernesti’s argument simply because it is phrased as a failure to obtain agency certification. Further, because our decision today is based on the old regulations, we do not address the foundation requirements under the new regulations.
Under the old regulations, as Emesti argues, the State must establish that the specific testing device was certified in order for the test results to be admitted into evidence, and Emesti has standing to challenge whether the State sustained its burden. We, therefore, consider the merits of his challenge.
Issue 2: Did the district court err by suppressing the BREATH TEST RESULT?
The focus of that challenge is the question of whether the district court erred in suppressing the breath test result because the State failed to establish that the device used to test Emesti’s breath was certified pursuant to the regulations that became effective on March 14, 2008.
Standard of Review
As we consider this issue, there are at least three possible contexts in which to determine the appropriate standard of review.
First, we are reviewing an order suppressing evidence. An appellate court reviews the factual underpinnings of a motion to suppress by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. State v. Marx, 289 Kan. 657, 660, 215 P.3d 601 (2009); State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). In this case, the parties do not dispute the district court’s findings of fact. There is no controversy regarding the nature of the certifications and the timeline of relevant events — the January certification, the adoption and repeal of regulations, the testing of Emesti, and the subsequent reissuance of a certification. The dispute surrounds the legal conclusions; hence, under the motion to suppress standard, our review is de novo.
The second context for; consideration of the standard of review is the nature of the legal conclusions at issue. Our analysis, like the district court’s, depends on the interpretation and construction of statutes relating to DUI and the testing of blood alcohol content and on the interpretation of administrative regulations promulgated by the KDHE. Appellate review of a district court’s interpretation of either statutes or regulations is unlimited. In re Tax Appeal of Lemons, 289 Kan. 761, 762, 217 P.3d 41 (2009) (statutes); State v. Strand, 261 Kan. 895, 897, 933 P.2d 713 (1997) (regulations).
Third, our focus is on the district court’s determination that the State cannot meet the foundation requirements. The question of whether evidentiary foundation requirements have been met is left largely to the discretion of the district court. Hemphill v. Kansas Dept. of Revenue, 270 Kan. 83, 90, 11 P.3d 1165 (2000). Under an abuse of discretion standard, an appellate court will not disturb a district court’s decision unless no reasonable person would have taken the same view. See Vorhees v. Baltazar, 283 Kan. 389, 393, 153 P.3d 1227 (2007). Yet, even under the deferential abuse of discretion standard of review, an appellate court has unlimited review of legal conclusions upon which a district court’s discretionary decision is based. Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 456, 14 P.3d 1170 (2000). Because “ ‘[a] district court by definition abuses its discretion when it makes an error of law,... [t]he abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.’ ” Kuhn, 270 Kan. at 456 (quoting Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 116 S. Ct. 2035 [1996]); see also State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 (2007) (district judge’s discretionary decision protected under abuse of discretion standard “if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards”). In this appeal, the focus is on the legal conclusion that led to the district court’s foundation ruling.
Hence, in each context, our standard of review is unlimited.
Application of New Regulations
In considering the issue of law that is the focal point of this appeal, the State and amicus curiae KDR argue that the district court did not explain why the rights bestowed by the original certificate, issued under the old regulations for the year 2008, would not continue for the remainder of that calendar year. Nor, they argue, did the district court explain why the LPD would be required to meet substantive changes in the administrative regulations that were not effective until after the LPD had already received certification for 2008, thereby meeting all the requirements of the regulations in effect at the time of its application. In other words, why the retroactive application of substantive law? See Kelly v. VinZant, 287 Kan. 509, 521, 197 P.3d 803 (2008) (stating that a statutory amendment operates prospectively unless the language of the statute clearly shows that it is the intention of the legislature that it operate retroactively). Given the district court’s analysis, both rationales- — (1) the certificate was effectively revoked and (2) the LPD failed to comply with the new regulations in making its 2008 application — must be considered.
Certificate Revoked or Saved?
The State and amicus curiae KDR argue that the January 2008 certificate remained in effect and the rights granted by the certification were not revoked simply because the regulations were revoked. To support the argument, amicus curiae KDR points to K.S.A. 77-425, which states in relevant part:
“The revocation of a rule and regulation by a state agency shall not be construed as reviving a rule and regulation previously revoked by such agency, nor shall such revocation by a state agency be construed as affecting any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the rale and regulation revoked.”
The KDR argues that under this provision the revocation of the regulations did not impact the certification that had been issued in January 2008, which on its face stated it was effective from January 15, 2008, until December 31, 2008.
Before discussing the substance of K.S.A. 77-425 and its impact on the issues, we must consider the fact the statute was first cited and discussed in the amicus brief filed by the KDR. In other words, it was not cited to the district court or in the appellant’s or appellee’s initial briefs. It was, however, argued in this appeal sufficiently early that Emesti was able to submit a brief discussing the implications of the statute and both the State and Emesti discussed K.S.A. 77-425 during oral arguments before this court. Hence, the parties had a full opportunity to argue the impact of the provision. Further, even though K.S.A. 77-425 was not considered by the district court, it can be considered for the first time on appeal because it presents a question of law that is potentially dispositive of the appeal. See State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008).
This court has not previously applied K.S.A. 77-425 but has applied a similar provision relating to legislation, K.S.A. 77-201 First. In doing so, we have construed K.S.A. 77-201 First as a general savings statute that preserves all rights and remedies under a repealed statute when the repealing statute is silent as to whether such rights and remedies shall be abrogated. See, e.g., State v. Armstrong, 238 Kan. 559, 566, 712 P.2d 1258 (1986) (holding that defendant was not entitled to dismissal on basis that statutes under which he was charged had been amended after the offenses were committed); City of Kansas City v. Griffin, 233 Kan. 685, 689, 664 P.2d 865 (1983) (“Where a new statute or ordinance defining a crime is enacted which is still the same basic crime with the same basic elements and only the penalty is increased, it seems logical to us that, in the absence of some evidence of a contrary intention, the legislative intent is not to abate pending prosecutions.”).
Cases applying K.S.A. 77-201 First are helpful in two respects. First, the cases recognize that the statute abrogates the common-law rule that the repeal of a statute terminates rights accruing or prosecutions commenced under the repealed statute. See Griffin, 233 Kan. at 686-87. In this case, the district court applied the common-law rule without regard to the effect of the general, statutory savings provision. Yet, K.S.A. 77-425, in the same manner as K.S.A. 77-201 First, is a general savings statute that preserves all rights and remedies under a repealed regulation when the repealing regulation is silent as to whether such rights and remedies shall be abrogated. As such, when a regulation is repealed, K.S.A. 77-425 abrogates the common-law rule that the repeal terminates rights accruing or proceedings commenced under the repealed provision.
Second, the cases applying K.S.A. 77-201 First address an argument made by Emesti — i.e., that a savings statute has no application because the proceedings against him were not initiated until after the regulations were revoked. This narrow focus on the term “proceeding” in K.S.A. 77-425 and narrow view of what that term means is contrary to the case law under K.S.A. 77-201 First. In The State v. City of Topeka, 68 Kan. 177, 74 Pac. 647 (1903), this court explained that the term “proceeding” as used in the statute is not limited to judicial proceedings. Rather, in the context of that case, the term applied to “the organization, powers, and duties of cities of the first class, and particularly of issuing bonds and the erection of public improvements, and it was to protect proceedings of this character commenced under previously existing laws that the saving clause was enacted.” Topeka, 68 Kan. at 187. Here, a different context applies to the “proceeding.” As the State and the KDR note, and as we previously discussed in the context of the jurisdiction argument, the certification process requires an administrative proceeding that ends with the denial or issuance of a certificate. In this case, the LPD initiated a proceeding and received the administrative award of a certificate — i.e., an administrative order — that was valid until December 31, 2008. The subsequent adoption of regulations would not require that the LPD meet new requirements for the already-issued certificate to be valid.
Rather, the LPD was entitled — indeed, it had the right — to rely on the authorized certificate without fear of penalty. This right arises primarily from the fact that if there was not a valid certification of the testing device both the LPD officer who administered the test and the LPD were potentially subject to penalties. As it would affect the officer, the legislature has declared it a crime to test human breath for law enforcement purposes unless the testing device was approved by the KDHE, stating:
“(a) It shall be unlawful for any person to make any test of the human breath for law enforcement purposes, unless:
(2) the apparatus, equipment or device used by such person in the testing of human breath for law enforcement purposes is of a type approved by the secretary of health and environment and otherwise complies with the rules and regulations of tire secretary of health and environment adopted pursuant to K.S.A. 65-1,107 and amendments thereto to govern the periodic inspection of such apparatus, equipment and devices.
“(b) Any person who violates any provision of subsection (a) shall be guilty of a class C misdemeanor.
“(c) Nothing in this section shall be construed to prohibit the use of devices approved pursuant to K.S.A. 65-1,107 and amendments thereto for . . . law enforcement purposes.” K.S.A. 65-1,109.
Further, there are potential consequences for any agency that allows testing without compliance with the regulations. See K.A.R. 28-32-9(f) (“[t]he failure to comply with this regulation may be grounds for suspension or revocation of the agency’s certification”); K.A.R. 28-32-10(f) (relating to operator certification; “[t]he failure of an applicant or a certified operator to comply with this regulation may be grounds for denial of the application or renewal or for suspension or revocation of the operator’s certificate”).
The LPD sought and obtained a certification from the KDHE, and device operators relied on that certification as a license to legally perform breath tests for law enforcement purposes. Thus, the certificate protected important interests and vested an accrued right, and suspension of the issued certificate would involve state action that adjudicates important interests. As such, the certificate cannot be taken away without the procedural due process required by the Fourteenth Amendment to the United States Constitution. See Bell v. Burson, 402 U.S. 535, 539, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971); State v. Heironimus, 262 Kan. 796, 803, 941 P.2d 1356 (1997).
Because such an accrued right existed, K.S.A. 77-425 preserves the validity of both the administrative process of seeking a certificate and the resulting administrative order represented by a certificate issued pursuant to K.A.R. 28-32-4, even after the regulation was revoked. Consequently, a certificate issued pursuant to K.A.R. 28-32-4 remains valid until its original expiration date even though the regulation was revoked.
Retroactive Application
The second rationale that is at least implied by the district court’s conclusions is that the State could have laid a sufficient foundation by presenting evidence that the LPD’s 2008 application complied with the not-yet-adopted regulations. As previously noted, the district court observed that there was some evidence that the application was made even before the new regulations were promulgated. Yet, the court searched the record for evidence of compliance with the new regulations in areas where the regulations varied from the old. For example, the district court concluded there was no evidence that the agency custodian had submitted an application or that a roster of certified operators had been submitted.
As the State notes, requiring this type of prescient compliance essentially grants retroactive effect to the regulations. Yet, generally administrative regulations operate prospectively unless a contrary intent is clearly indicated. Jones v. The Grain Club, 227 Kan. 148, 150, 605 P.2d 142 (1980). There is no requirement in K.S.A. 2009 Supp. 8-1002 that the testing device be certified under regulations in effect on the date of testing; rather, the device must simply be certified. Nor is there a provision in K.A.R. 28-32-8 et seq. requiring any previously certified agency to reapply for device certification for the year 2008 or any other indication of an intent to apply the regulations retroactively.
Further, as a general rule, additional requirements cannot be imposed on proceedings that are under way or have already been finalized when new provisions are enacted or adopted. See generally Jones, 227 Kan. at 150-51 (filing of complaint with Kansas Commission on Civil Rights in accord with requirements at time sufficient to vest jurisdiction; not necessary to comply with subsequendy enacted jurisdictional requirements). In the present case, the requirements that specific agency personnel fill out separate applications for certification of the agency, breath testing devices, and operating personnel were not provided for in the procedures in place when the LPD’s application was filed. Hence, even if the LPD had attempted to meet the substance of proposed regulations, no procedure was in place for doing so.
Under those circumstances, the district court’s interpretation of the requirements would lead to a nonsensical result — a law enforcement agency would have to have met requirements not yet in place without a procedural mechanism for doing so. Imposing this impossible task would result in an undermining of the purpose of estabfishing procedures, testing protocols, qualifications, and standards of performing testing of human breath for law enforcement purposes. Consequently, such an application of the regulations would not lead to “consistent, harmonious, and sensible” results. In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989); see Barbury v. Duckwall Alco Stores, Inc., 42 Kan. App. 2d 693, Syl. ¶ 1,215 P.3d 643 (2009) (stating that to be valid, administrative regulations must be within agency’s statutory authority, and they must be appropriate, reasonable, and consistent with the underlying statutes). The district court clearly believed that the State was responsible for the resulting void and the inability to conduct legal testing. While it was within the State’s control to prevent such a void, the State did so when the legislature adopted the savings provision in K.S.A. 77-425.
Consequently, we conclude that K.A.R. 28-32-8 et seq. apply prospectively. The district court erred in its interpretation of the administrative regulations and thereby deciding to retroactively apply the certification requirements under the new regulations.
District Court’s Requiring Possession of New Certificate at Time of Breath Test
Finally, the State argues that the district court placed too high an evidentiary burden on the State by requiring the LPD to possess the new, reissued certificate at the time the breath test was administered on Emesti. Although the LPD had possession of the January 15, 2008, certificate (granting certification through December 31, 2008), the district court did not consider the certificate to be sufficient in light of the enactment of the new regulations on March 14, 2008. Likewise, the reissued certificate was deemed to be insufficient, in part because it was issued after Emesti’s July 2008 breath test and backdated to March 14, 2008 (granting certification through December 31, 2008).
Because of the savings clause and prospective application rationale we have applied, this issue is rendered moot. So, too, are the parties’ arguments regarding the effectiveness of the backdated certificate.
In conclusion, we find that the district court erred in applying the new administrative regulations to this case and in failing to recognize the continued validity of the January 2008 certificate. Consequently, the LPD correctly possessed a valid certificate for the device used to administer the breath alcohol test to Ernesti, a certificate that was issued pursuant to the administrative regulations in effect at the time of certification. The district court erred in concluding otherwise. The breath test result should not have been suppressed on this basis.
Reversed and remanded. | [
-16,
-22,
-3,
-36,
15,
97,
-102,
-100,
83,
-105,
-25,
112,
-83,
-46,
5,
51,
-126,
125,
113,
88,
-45,
-73,
119,
9,
-58,
-45,
-40,
87,
-69,
95,
108,
-4,
28,
-80,
-94,
-43,
-122,
-54,
-123,
88,
-116,
6,
9,
-15,
83,
-101,
-76,
-22,
-94,
-113,
97,
27,
-79,
63,
25,
-113,
-87,
124,
-53,
-115,
73,
-11,
-71,
-107,
109,
86,
-77,
20,
-100,
-115,
-40,
51,
-98,
113,
0,
120,
-14,
-74,
-62,
-92,
47,
-119,
37,
102,
96,
36,
17,
-17,
-20,
-84,
15,
-69,
15,
34,
-102,
89,
105,
12,
-106,
93,
116,
54,
15,
-4,
99,
-42,
95,
120,
-106,
-49,
-96,
-111,
75,
100,
-126,
89,
-49,
-93,
49,
65,
-43,
116,
86,
-106,
120,
27,
-58,
-76
] |
The opinion of the court was delivered by
Biles, J.:
William P. Smith appeals from an administrative action by the Kansas Department of Revenue suspending his driving privileges for 1 year following his arrest for driving under the influence of alcohol (DUI). Smith later was convicted of DUI, and that conviction was affirmed on appeal. State v. Smith, No. 101,831, unpublished Court of Appeals opinion filed December 18, 2009.
In this appeal from the agency’s action suspending his license, Smith challenges whether there were reasonable grounds to support the administration of an evidentiary breath test. He also attacks the constitutionality of K.S.A. 2009 Supp. 8-1012, which authorizes a preliminary breath test based on reasonable suspicion, rather than the higher probable cause standard. We affirm the district court’s order upholding the agency’s action.
Factual and Procedural Background
At approximately 9 p.m. on July 24, 2007, Smith was driving a pickup truck, pulfing a combine header trailer. The taiflights on the trailer were not working. A Kansas Highway Patrol trooper observed the faulty lights and initiated a traffic stop. There was nothing out of the ordinary regarding Smith’s reaction to the stop or the manner in which he pulled over his vehicle.
After stopping, but before the trooper made contact, Smith exited his vehicle and attempted to fix the trailer lights. The trooper simultaneously exited his patrol vehicle, but he stayed at the trailer’s rear to see if Smith’s efforts to fix the trailer fights worked. When those efforts failed, the trooper approached him. Nothing out of the ordinary occurred while Smith attempted to fix his trailer.
The trooper later testified that he detected a strong alcohol odor surrounding Smith. He also noted Smith’s eyes were bloodshot and watery. The trooper obtained Smith’s driver’s license. He then asked Smith to sit in the patrol car while he issued a warning for the equipment violation. Once in the patrol car, the trooper asked Smith if he had been drinking alcohol that evening. Smith answered either a “few” or “three or four” and that he had quit drinking approximately 30 minutes before.
Both men exited the patrol car and walked to Smith’s truck where the trooper again smelled alcohol. The trooper searched the truck. Smith does not challenge this search as illegal. During the search, the trooper found a beer bottle cap on the center console, an open beer botde containing a small amount of liquid on the floor beside the right rear door, and a full can of beer in a rear seat cup holder. The record does not disclose whether the can was open or sealed.
After searching the truck, they returned to the patrol car. While in the vehicle, the trooper administered two prefield sobriety tests. He asked Smith to recite his ABC’s from “D” to “S” and to count backwards from 63 to 47. Smith correctly recited the alphabet, but he missed one number, which he self-corrected.
The trooper asked Smith to perform two field sobriety tests. Smith agreed. The trooper first administered the walk-and-tum test. While performing this test, Smith exhibited two clues. He stepped off the line once, and he took an incorrect number of steps. Smith said he had a bad knee. The second test administered was the one-leg stand. Smith hopped during part of the test, which was one clue. Exhibiting one clue during the test is considered a pass.
The trooper next asked Smith to take a preliminary breath test (PBT). Smith agreed. The required protocol was followed. Smith failed the PBT with a result over .08, but the actual result was not recorded. At that time, the trooper arrested Smith, and he was transported to the Norton County Sheriff s Office, where Smith was tested on the Intoxilyzer 5000. The required protocol for administering the evidentiary breath test was followed. Smith’s breath sample yielded a .099. At the conclusion of the test, the trooper read Smith the Miranda warnings, and Smith said he did not wish to answer any questions. The contact with Smith ended. The trooper completed a form certifying Smith’s failure of the breath test. He indicated the following facts established his belief there were reasonable grounds to believe Smith was under the influence: (1) odor of alcoholic beverages surrounding Smith; (2) alcoholic beverage containers found in Smith’s vehicle; (3) Smith failed the sobriety tests; (4) Smith had bloodshot eyes; (5) Smith stated he had consumed alcohol; and (6) Smith failed the prehminary breath test.
After an administrative hearing, the Department of Revenue issued an administrative order suspending Smith’s driving privileges for 1 year. Smith timely filed a petition for review with the district court. The parties agreed the four issues were: (1) Did the arresting officer lack probable cause to arrest Smith and lack reasonable grounds to believe Smith had been operating a motor vehicle while under the influence of alcohol, drugs, or both? (2) Is K.S.A. 2009 Supp. 8-1012 unconstitutional because it allows for seizure of deep lung air based on reasonable suspicion grounds as opposed to probable cause? (3) Were the results of Smith’s breath-alcohol test inadmissible because he was subjected to custodial interrogation without benefit of Miranda warnings? and (4) Did the hearing officer erroneously apply the law to the facts?
Based on the transcript from the administrative hearing, the district court affirmed the agency’s action on each issue and upheld the suspension. Smith filed a notice of appeal, essentially raising the same four issues. We transferred the case to this court. Our jurisdiction comes under K.S.A. 20-3018(c) (transfer on court’s own motion).
Reasonable Grounds Supported the Evidentiary Breath Test
A law enforcement officer is required to request a person 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 if the officer has “reasonable grounds” to believe the person was operating or attempting to operate a vehicle while under the influence. K.S.A. 2009 Supp. 8-1001. The question we address in this case is whether there were reasonable grounds to believe Smith had been operating his vehicle under the influence to support the trooper’s request to administer an evidentiary breath test. In this context, the issue as to whether an officer has reasonable grounds to believe someone is operating or attempting to operate a vehicle while DUI is strongly related to whether that officer had probable cause to arrest. Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 775, 148 P.3d 538 (2006). This court has found the term “reasonable grounds” synonymous in meaning with “probable cause,” but in doing so has noted an officer may have reasonable grounds to believe a person is operating a vehicle under the influence sufficient to request a test under the statute — but not have the probable cause required to make an arrest under K.S.A. 8-1001. 282 Kan. at 776.
Smith incrementally challenges some of the evidence used to support the trooper s determination that reasonable grounds existed. First, Smith argues there were additional facts negating any determination of reasonable grounds. Second, Smith claims his admissions to the trooper that he had been drinking should have been excluded from this determination because he was not advised of his Miranda rights before he made the incriminating statements. Third, Smith claims the PBT evidence should have been excluded because K.S.A. 2009 Supp. 8-1012, which is the statute authorizing such tests, is unconstitutional because it requires only an officer s “reasonable suspicion” to believe the person sought to be tested has been operating a vehicle under the influence, instead of the higher probable cause standard. Finally, and predicated upon his presumed success on the first three contentions, Smith argues that without the admissions about drinking and the PBT, there were no reasonable grounds under K.S.A. 2009 Supp. 8-1001(b) to justify his arrest and evidentiary breath test.
Standard of Review
Following a district court’s trial de novo, this court reviews the district court’s determination to suspend a license for substantial competent evidence. Bruch, 282 Kan. at 772. Substantial competent evidence is “such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 2,136 P.3d 390 (2006), cert. denied 549 U.S. 1278 (2007). Whether substantial competent evidence exists is a question of law. Redd v. Kansas Truck Center, 291 Kan. 176, 182, 239 P.3d 66 (2010).
Discussion
This court must determine whether there were reasonable grounds, i.e., probable cause, to support the troopers decision to request the evidentiary breath test. Probable cause exists where the officer’s knowledge of the surrounding facts and circumstances creates a reasonable belief that the defendant committed a specific crime. Probable cause does not require an officer have evidence of every element of the crime. State v. Fewell, 286 Kan. 370, 377-78, 184 P.3d 903 (2008) (citing Draper v. United States, 358 U.S. 307, 311-12, 3 L. Ed. 2d 327, 79 S. Ct. 329 [1959]; State v. Abbott, 277 Kan. 161, 164, 83 P.3d 794 [2004]; State v. Aikins, 261 Kan. 346, 355, 932 P.2d 408 [1997].) Probable cause is determined by evaluating the totality of the circumstances. Fewell, 286 Kan. at 377 (citing Illinois v. Gates, 462 U.S. 213, 230-31, 76 L. Ed. 2d 527, 103 S. Ct. 2317, reh. denied 463 U.S. 1237 [1983]).
Here, the district court found Smith’s arrest and subsequent evidentiary breath testing were supported by a number of factors: (1) The trooper smelled alcohol during his initial contact with Smith; (2) the trooper observed Smith’s bloodshot and watery eyes; (3) Smith admitted to having a few drinks that evening; (4) Smith admitted that his last drink was approximately 30 minutes earlier; (5) the trooper smelled alcohol wafting from Smith’s truck; (6) the trooper viewed an open container in Smith’s truck; (7) Smith committed an error during the prefield sobriety test; (8) Smith presented two clues on the walk-and-tum field sobriety test; (9) Smith presented one clue on the one-leg stand field sobriety test; and (10) Smith failed the PBT.
Smith counters that this does not amount to probable cause because: (1) He recited the alphabet properly during the first prefield test; (2) he counted backwards in a generally acceptable manner during the second prefield test; (3) his reaction time to the initial lights and sirens was appropriate; and (4) he did not exhibit any balance or motor skill issues throughout the stop. While these assertions are, for the most part, true, they hardly diminish the other clues exhibited. We do not find these facts negate the others in the determination as to whether the trooper should have requested the PBT or the evidentiary breath test at the station.
Next, we consider Smith’s claims that some of the facts the trooper relied upon were unlawfully obtained. Specifically, Smith challenges his admissions to drinking and the constitutionality of the PBT. Smith argues this evidence should be disregarded. Addressing first Smith’s admissions about drinking, he argues the trooper was required to issue Miranda warnings before asking him any questions regarding his alcohol consumption that evening.
The Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights prevent any person from being compelled to be a witness, against himself or herself in a criminal case. State v. Ninci, 262 Kan. 21, 34, 936 P.2d 1364 (1997). As is well known, in Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), the United States Supreme Court expanded the rights protecting citizens from self-incrimination by holding: “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” (Emphasis added.) But the police are not required to administer Miranda warnings to everyone questioned. Warnings are required only before a custodial interrogation occurs. State v. Jones, 283 Kan. 186, 192-93, 151 P.3d 22 (2007) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 97 S. Ct. 711 [1977]).
To determine whether Smith’s contention is accurate, we must first decide whether Smith was in custody when interrogated. This is a question over which an appellate court has de novo review. Jones, 283 Kan. at 192.
The United States Supreme Court has held that in most circumstances persons temporarily detained during a routine traffic stop are not “in custody” for the purposes of Miranda. Berkemer v. McCarty, 468 U.S. 420, 440, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984). The Berkemer Court provided two reasons for concluding persons detained in a traffic stop are usually not in custody. First, the Court acknowledged a traffic stop restricts a motorist’s freedom, but found it is distinguishable from the stationhouse interrogations the Miranda Court had in mind because the traffic stop is brief in nature. See 468 U.S. at 436-38. Second, the Court found the public nature of traffic stops was sufficient protection against potential illegal police conduct. 468 U.S. at 438-39. Based on those conclusions, the Court found traffic stops were more analogous to “Terry stops,” resulting from the case of Terry v. Ohio, 392 U.S. 1, 29, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), than custodial interrogations. This is true even though the officer may suspect the individual has committed, is committing, or is about to commit a crime and even though the individual is not free to leave during a lawful detention. Berkemer, 468 U.S. at 439.
But the Supreme Court declined to adopt a bright-line rule that Miranda warnings are never required before questioning a suspect during a traffic stop because exceptional circumstances may arise where a suspect’s freedom of action is curtailed to a “ ‘degree associated with formal arrest.’ ” 468 U.S. at 440. In those circumstances that render the traffic stop suspect “ ‘in custody,’ ” Miranda warnings are still required. 468 U.S. at 440; see also Standish v. Department of Revenue, 235 Kan. 900, 904, 683 P.2d 1276 (1984) (citing Berkemer).
There is also no bright-line rule for determining when a person is in custody for the purposes of Miranda. See State v. Fritschen, 247 Kan. 592, 600-03, 802 P.2d 558 (1990). An objective standard is employed, and the proper analysis is how a reasonable person in the suspect’s position would have understood the situation. State v. Hebert, 277 Kan. 61, 68, 82 P.3d 470 (2004). But the Berkemer Court’s analysis and the facts in that case provide some guidance.
In Berkemer, the defendant was pulled over because a trooper observed the defendant’s car weaving in and out of its lane. After asking the defendant to step out of his vehicle, the trooper observed the defendant having difficulty standing. At that time, the trooper knew he would charge the defendant with a traffic offense of some kind, but he did not arrest the defendant. Instead, the trooper asked the defendant whether he had consumed any intoxicants, to which the defendant gave an incriminating response. Further, the defendant’s speech was slurred, and the trooper had difficulty understanding him. The trooper formally arrested the defendant. The Berkemer Court found the trooper’s question re garding the defendant’s consumption of intoxicants did not qualify as a custodial interrogation and, thus, Miranda warnings were not required. 468 U.S. at 441-42.
Smith’s circumstances are nearly indistinguishable from those in Berkemer. One difference is that Smith was seated in the patrol car when questioned and Berkemer was not. As the Court of Appeals noted in Smith’s criminal appeal, there are instances when a defendant is in custody and the patrol car serves as a “ ‘ “temporary jail.” ’ ” State v. Smith, No. 101,831, unpublished opinion filed December 18, 2009, slip op. at 6-7 (quoting State v. Timley, 25 Kan. App. 2d 779, 781, 975 P.2d 264 (1998), rev. denied 266 Kan. 1115 [1999]). But that was not the case here. Prior Kansas courts have held that a defendant was not in custody despite being seated within a patrol car. State v. Price, 233 Kan. 706, Syl. ¶ ¶ 5-6, 664 P.2d 869 (1983); State v. Almond, 15 Kan. App. 2d 585, Syl. ¶¶ 1-2, 811 P.2d 529 (1991). As such, this difference is not significant enough to distinguish it from Berkemer. The Berkemer Court’s analysis still applies here. The questioning occurred while Smith was waiting for the trooper to issue a warning ticket for a taillight infraction. The trooper had smelled alcohol, observed Smith’s bloodshot and watery eyes. He asked a limited number of questions regarding if Smith had been drinking and when Smith had his last drink. This inquiry did not prolong the encounter. This court has held that “general on-the-scene questioning of citizens in the fact-finding process does not constitute custodial interrogation requiring a Miranda warning.” Price, 233 Kan. 706, Syl. ¶ 5. The trooper’s questioning of Smith was not a custodial interrogation requiring Miranda warnings.
With this determination made, we recap for convenience the facts existing at the time the trooper requested the PBT pursuant to K.S.A. 2009 Supp. 8-1012(b). They were: (1) smelling alcohol upon his initial contact with Smith; (2) observing Smith had bloodshot and wateiy eyes; (3) Smith’s admission to having a few drinks that evening; (4) Smith’s admission that his last drink was approximately 30 minutes before his contact with the trooper; (5) the smell of alcohol wafting from Smith’s truck; (6) viewing an open container in Smith’s truck; (7) Smith’s difficulty with a prefield sobriety test; (8) Smith presenting two clues on the walk-and-tum field sobriety test; and (9) Smith presenting one clue on the one-leg-stand field sobriety test.
We find these facts sufficiently strong to establish probable cause to proceed with a PBT, even if the statute authorizing it only requires an officer s reasonable suspicion to administer the test. The trooper’s knowledge of these facts and circumstances certainly created a reasonable belief that Smith was operating his vehicle under the influence of alcohol. Accordingly, we find this case does not require us to consider Smith’s constitutional argument. See Wilson v. Sebelius, 276 Kan. 87, 91, 72 P.3d 553 (2003) (“Appellate courts generally avoid making unnecessary constitutional decisions. Thus, where there is a valid alternative ground for relief, an appellate court need not reach constitutional challenges to statutes”).
This conclusion necessarily leads to our final determination that reasonable grounds supported Smith’s arrest and the requested evidentiary breath test. The same facts support both. The district court properly upheld the agency’s decision to suspend Smith’s driving privileges.
Affirmed.
Davis, C.J., not participating. | [
-16,
-18,
96,
-34,
45,
64,
34,
28,
81,
-13,
-25,
83,
-83,
-62,
5,
99,
-5,
61,
85,
75,
-41,
-73,
87,
-111,
-42,
-13,
-38,
-33,
-73,
-37,
108,
-12,
79,
-80,
-118,
-99,
38,
-54,
-123,
-40,
-116,
4,
57,
-23,
88,
-104,
-96,
107,
-78,
79,
49,
-97,
-29,
62,
24,
-46,
-87,
44,
-37,
-84,
-55,
-15,
-103,
-99,
95,
20,
35,
4,
-100,
-115,
88,
10,
-104,
57,
80,
-4,
115,
-90,
-128,
-76,
47,
-119,
44,
-90,
106,
-95,
17,
-19,
-84,
-68,
46,
58,
-97,
-90,
-102,
89,
105,
-92,
-106,
-103,
125,
22,
7,
-8,
-21,
85,
87,
104,
-122,
-53,
-72,
-111,
-49,
48,
2,
89,
-5,
-127,
32,
97,
-43,
-26,
94,
-59,
115,
25,
-58,
-108
] |
The opinion of the court was delivered by
Beier, J.:
This is a direct appeal from a sentence entered after an Alford plea in a Jessica’s Law case. Defendant Kevin Floyd argues that the district court judge abused his discretion by giving him a 55-month rather than 36-month prison term.
Factual and Procedural Background
Floyd entered his plea to one count of aggravated indecent liberties with a child, a charge arising out of a November 2008 incident.
In exchange for the plea, the State agreed not to oppose Floyd’s motion for a departure from a Jessica’s Law life sentence with a mandatory minimum of 25 years. The State further agreed to “ask the court to impose the low # (anticipated to be 55 months) in the appropriate grid box for a severity 3 person felony.” The 55-month term arose out of the grid’s assignment for a severity level 3 crime of conviction and Floyd’s acknowledged criminal history score of “I.” The State also agreed that Floyd would be free to seek a prison term of 36 months.
Before sentencing, Floyd filed a motion for durational departure that did not specify the length of the term he sought. He argued the following facts constituted substantial and compelling reasons to depart: (1) the State’s agreement to join in Floyd’s departure request; (2) his conservation of considerable resources by waiver of his right to a trial; (3) his lack of criminal history and his age; (4) his ability to seek sex offender treatment no longer available in prison at an earlier time; (5) the agreement of the victim’s family that a life sentence would be inappropriate; (6) disproportionahty between a life sentence and the crime; and (7) his emotional and neurological disorders.
At sentencing, the victim’s father told the district judge that he believed “the whole situation was blown out of proportion by the District Attorney” and that the victim “seem[ed] to have no issues” after receiving counseling. Defense counsel repeated the reasons for departure stated in Floyd’s motion — adding that Floyd had a traumatic past, would be vulnerable to other inmates, and was remorseful — and requested imposition of a 36-month prison term. The district judge inquired about the source of the 36 months: “So 36 is just a number that you feel appropriate. I don’t see that you are trying to treat it as a particular grid box, as such.” Defense counsel responded that she and the prosecutor “came to the understanding that [the prosecutor] was okay if I argued for 36 months” and that the defense would have sought probation if not for a recent statutory amendment disallowing downward dispositional departures in Jessica’s Law cases. See K.S.A. 2008 Supp. 21-4719(a); L. 2008, ch. 183, sec. 7; State v. Gracey, 288 Kan. 252, 260, 200 P.3d 1275 (2009).
The district judge departed from the life sentence and mandatory minimum of Jessica’s Law, indicating reliance upon Floyd’s lack of criminal history; letters written supporting him; Floyd’s mental health problems; the nature of the offense; the recommendations of the parties; and “the apparent harm to the victim being, at least it appears to be less than is normally associated with the crime of this nature.” But the judge imposed a prison term of 55 months rather than 36 months. It is this decision about which Floyd complains by means of this appeal.
Analysis
K.S.A. 21-4643(d) authorizes a sentencing judge to depart from the life sentence and mandatory minimum of Jessica’s Law: “[T]he sentencing judge shall impose the mandatory minimum term of imprisonment... unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” If the sentencing judge departs, the departure sentence “shall be the sentence pursuant to the sentencing guidelines act, K.S.A. 21-4701 et seq., and amendments thereto, and no sentence of a mandatory minimum term of imprisonment shall be imposed.” K.S.A. 21-4643(d).
As construed by this court in State v. Spencer, 291 Kan. 796, 248 P.3d 256 (2011), the “sentence pursuant to the sentencing guidelines act” to which K.S.A. 21-4643(d) refers is a sentence on the nondrug sentencing guidelines grid. See Spencer, 291 Kan. at 822; see also State v. Ballard, 289 Kan. 1000, 1008, 218 P.3d 432 (2009) (“[I]n the presence of substantial and compelling reasons, the district court may impose a sentence pursuant to the sentencing guidelines”); Gracey, 288 Kan. at 259 (same). The offense severity level used to determine the grid box into which a defendant falls is that assigned to the crime of conviction when it lacks the element of disparity between the defendant’s and the victim’s ages. See Spencer, 291 Kan. at 827, 830.
For Floyd’s crime of conviction, aggravated indecent liberties, severity level 3 is the level to be used to determine the grid box. This severity level, when considered with Floyd’s criminal history score of I, leads to a sentencing range of 55 to 61 months in prison. K.S.A. 21-4704.
Up to this point in the analysis, Floyd has no quarrel with the district judge’s choice of sentence. He asserts only that the judge should have departed a second time, specifically, that he should have agreed to a downward durational departure to 36 months from 55 months, the low number in the grid box.
Floyd is correct that, once a “ ‘sentence becomes a guidelines sentence, the district court is free to depart from the sentencing grid if it states on the record findings of fact and reasons justifying a departure that are supported by evidence in the record and are substantial and compelling.’ ” Spencer, 291 Kan. at 803 (quoting Gracey, 288 Kan. at 259).
But permission is not compulsion. A sentencing court also is free to deny such a departure; we will not reverse the decision unless we determine that the district court’s findings of fact are unsupported by substantial competent evidence or that its consideration of mitigators and/or aggravators constituted an abuse of discretion. See State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008); compare Spencer, slip op. at 15 (discussing various standards of review applicable when grant of departure challenged on appeal; when question whether record supported sentencing judge’s particular articulated reasons for departure, appellate standard of review substantial competent evidence; when question whether sentencing judge correctly concluded particular mitigating factors constituted substantial and compelling reasons to depart in particular case, including whether mitigating factors outweighed any aggravating factors if such balance necessaiy, appellate standard of review abuse of discretion).
In this case, Floyd is less than expansive on exactly what was wrong about the district court’s refusal to grant a second departure. Floyd merely sets forth the same support he listed in his district court motion and then says only that these factors “should have forced the district court ‘to leave the status quo’ and ‘go beyond what is ordinaiy[.’ T]he district court erred in denying defense counsel’s request for a downward durational departure to thirty-six months imprisonment.”
We understand this to be an argument that the district judge abused his discretion in evaluating any mitigators and aggravators. Judicial discretion is abused when no reasonable person would take the view adopted by the district judge. State v. Ernesti, 291 Kan. 54, Syl. ¶ 10, 239 P.3d 40 (2010).
We agree with the State that Floyd fails to “present any specific arguments indicating why a 36-month sentence would have been more appropriate, let alone show that it was arbitrary, fanciful, or unreasonable for the court to follow the recommendation in the plea agreement and impose a 55-month sentence.” Under these circumstances, we must affirm the 55-month prison sentence. A reasonable person could agree that Floyd received all the lenience he had coming to him when the district judge departed from tire usual Jessica’s Law sentence of life with a 25-year mandatory minimum to 55 months.
Affirmed. | [
16,
-22,
-35,
61,
25,
33,
27,
88,
66,
-29,
111,
115,
-91,
-42,
4,
123,
-69,
99,
84,
105,
81,
-9,
55,
-63,
-74,
-77,
120,
-47,
-69,
79,
-20,
-99,
14,
80,
-126,
117,
102,
-54,
-10,
88,
-114,
17,
-101,
-19,
-112,
66,
50,
47,
8,
15,
33,
-98,
-89,
110,
53,
-58,
-119,
108,
91,
41,
-56,
-71,
-102,
31,
75,
36,
-93,
-123,
-68,
2,
-8,
46,
-104,
57,
33,
-24,
115,
-106,
-126,
116,
79,
-119,
-92,
96,
98,
-128,
77,
86,
-7,
-127,
13,
110,
-68,
38,
88,
89,
75,
4,
-99,
-67,
116,
52,
45,
124,
103,
12,
29,
108,
1,
-50,
52,
-109,
-51,
37,
-74,
-69,
-29,
-95,
1,
101,
-49,
-92,
92,
118,
121,
-39,
78,
-34
] |
The opinion of the court was delivered by
Nuss, J.:
Tina C. Williams appeals the Court of Appeals affirmation of the district court’s sentence for her identity theft con victions. She alleges the district court erroneously scored her criminal history by calculating her prior convictions for identity theft from the state of Washington as person felonies instead of nonperson felonies. Our jurisdiction is under K.S.A. 60-2102(b). We affirm.
Facts
Tina C. Williams pleaded guilty in Johnson County District Court to one count of identity theft in case No. 05 CR 2265 and one count of identity theft in case No. 06 CR 1812. In 05 CR 2265, Williams admitted she completed a credit application on June 6, 2005, to purchase a $21,000 car using false information concerning her address, occupation, gross salary, and employment history. Williams made $7,100 in payments on the car using a Target Visa credit card she had obtained using Tina Newcomb’s date of birth and social security number. Williams had obtained Newcomb’s information, without permission, while working as a receptionist at the Leawood Family Care center, where Newcomb was a patient.
In case No. 06 CR 1812, defendant Williams admitted she used Amie Williams’ identity information, without permission, to purchase a $20,000 car from Jay Wolfe Honda on February 11, 2006. Williams had obtained Amie Williams’ information while working at Sabates Eye Center. On June 23, 2006, Williams drove the Honda to McCarthy Dodge. There, she completed paperwork to purchase a $23,000 car using Tina Louise Williams’ identity information, without permission, which defendant Williams had obtained while working at the University of Kansas Medical Center.
Presentence investigation (PSI) reports were prepared in both 05 CR 2265 and 06 CR 1812. The PSI reports revealed five prior identity theft convictions in the state of Washington. The Washington offenses occurred between December 2001 and September 2002, and sentencing for all offenses occurred on December 26, 2002.
While not provided in the record on appeal, the original Kansas PSI reports in both 05 CR 2265 and 06 CR 1812 apparently scored the five prior Washington identity theft convictions as nonperson felonies. The State objected. It claimed that the PSI reports should score the prior Washington convictions as person felonies because when the offenses were committed in 2001 and 2002, Kansas classified identity theft as a person felony. The district court agreed and the PSI reports were changed from a criminal history score of “E” to “A”.
The district court sentenced Williams to concurrent prison sentences of 32 months in 05 CR 2265 and 21 months in 06 CR 1812. The Court of Appeals affirmed the criminal history score calculation but determined that the journal entry of judgment incorrectly listed the 06 CR 1812 conviction as severity level 7 instead of severity level 8. It remanded that issue to the district court for correction. We granted Williams’ petition for review on the criminal history score issue only.
More facts will be added as necessary to the analysis.
Analysis
Issue: The district court correctly scored Williams’ Washington convictions in 2001 and 2002 as person felonies when sentencing for Kansas identity theft convictions for offenses committed in 2005 and 2006.
The calculation of criminal history score for out-of-state convictions is governed by K.S.A. 21-4711(e). It provides:
“Out-of-state convictions and juvenile adjudications will be used in classifying the offender’s criminal history. An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall classify the crime as a person or nonperson. In designating a[n out-of-state] crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime.” (Emphasis added.)
We agree with the parties that K.S.A. 21-4018, which criminalizes identity theft and identity fraud, expresses the Kansas offense that is comparable to the Washington offense for which Williams was convicted and sentenced in 2001 and 2002. The complicator of the instant case is the change occurring in this statute between the time of Williams’ Washington offenses and her 2007 sentencing in Kansas for offenses committed here.
K.S.A. 21-4018 was enacted in 1998 and was originally a class A person misdemeanor. L. 1998, ch. 179, sec. 1. In 2000, the legislature amended 21-4018 by increasing the severity to a level 7 person felony. L. 2000, ch. 181, sec. 8. In 2005, the legislature again amended, this time reducing the severity to a level 8 nonperson felony. L. 2005, ch. 131, sec. 2.
The fundamental rule is that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980). An exception to the fundamental rule is that if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it applies retroactively. State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991).
The 2000 and the 2005 amendments to the Kansas identity theft statute, K.S.A. 21-4018, altered substantive rights by modifying the severity of the punishment for a conviction by reclassifying the crimes as person and nonperson respectively. Therefore, each amendment operates prospectively only. See Sutherland, 248 Kan. at 106; State v. Sylva, 248 Kan. 118, 119, 804 P.2d 967 (1991). In sum, identity theft was a level 7 person felony in Kansas when Williams committed her Washington crimes, and was convicted and sentenced for them, in 2001 and 2002. While the parties agree that K.S.A. 21-4018 provides the comparable offense, they disagree on whether the 2000 version (person felony) or the 2005 version (nonperson felony) of the statute applies.
The 2000 version ofKS.A. 21-4018 is the comparable offense
Williams presents two arguments on how this court should determine the correct Kansas comparable offense. First, she argues that the comparable offense should be determined as of the date of her Kansas sentencing for 05 CR 2265 and 06 CR 1812, i.e., February 2007. Accordingly, the offenses in both cases are level 8 nonperson felonies. Because the district court held they were both person felonies, she contends she should be resentenced in both cases.
In the alternative, she argues that the Kansas comparable offense should be determined as of the date she committed the Kansas offenses in 05 CR 2265 (June 2005) and 06 CR 1812 (February-June 2006). Because the law regarding the offense of identity theft changed effective July 1, 2005, her logic produces a level 7 person felony for her earlier offense and a level 8 nonperson felony for her later offense. And because the district court held both were person felonies, she should be resentenced in 06 CR 1812.
The State responds that the comparable Kansas offense should be determined as of the dates that Williams committed the prior Washington offenses: 2001 and 2002. This logic produces level 7 person felonies for both offenses, just as the district court calculated.
Williams relies heavily on State v. Vandervort, 276 Kan. 164, 72 P.3d 925 (2003), to argue the comparable offense should be determined as of the date she committed the Kansas offenses. There, the defendant was convicted of two counts of rape, one count of attempted rape, three counts of criminal sodomy, and seven counts of aggravated indecent liberties with a child. All of these events allegedly occurred in Kansas between November 1,1996 and September 17, 2000. The subsequent PSI report included two 1980 Virginia convictions for indecent liberties and exposure, scoring them as person felonies.
The Vandervort Court determined that the comparable offense to tire Virginia exposure conviction was K.S.A. 21-3508 (lewd and lascivious behavior). K.S.A. 21-3508 was codified in 1969 and classified lewd and lascivious behavior as a class B misdemeanor, with no designation of person or nonperson. K.S.A. 1969 Supp. 21-3508. The offense remained a class B misdemeanor until 1998, when the statute was amended to classify lewd and lascivious behavior with a person under 16 years of age as a severity level 9 person felony. K.S.A.1998 Supp. 21-3508. The 1998 amendment occurred during the window (1996-2000) in which Vandervort committed the crimes.
The defendant argued that “since it is unclear when the acts occurred giving rise to his convictions in this case, the jmy could have convicted him for acts that occurred at any time during the period between November 6, 1996, and September 17, 2000, reflected in the charging documents.” 276 Kan. at 179. This court held:
“[I]t is uncertain when the acts occurred which the jury relied upon to convict Vandervort [in the Kansas case]. Without that determination, Vandervort may have been convicted for acts which occurred prior to July 1, 1998. The State charged Vandervort with acts that occurred during a period between November 1,1996, and September 17, 2000. The jury was instructed to consider this expansive period. With this uncertainty as to when each act relied upon by the jury occurred, Vandervort must be sentenced with the lower criminal history.” 276 Kan. at 180.
The opinion is not crystal clear. But the question of whether the 1998 version (level 9 person felony) or the 1969 version (Class B misdemeanor) of lewd and lascivious behavior was the comparable offense to the 1980 Virginia convictions — because of the date of the commission of the new Kansas offenses — simply was not answered by the court. The Vandervort Court instead narrowed its focus to the events that occurred in Kansas between 1996 and 2000.
In contrast to Williams, the State contends Vandervort actually supports its position. It argues Vandervort stands for the general principle that sentencing “ parameters for an offense are fixed as of the date of the commission of the offense/ ” Vandervort, 276 Kan. at 180 (quoting Sylva, 248 Kan. at 121). According to the State, we should logically extend this general principle to the current scenario and score the Washington offenses for sentencing puiposes according to their Kansas equivalents when the Washington offenses were committed in 2001 and 2002.
We acknowledge that Vandervort’s general declaration is wellsetfled in Kansas law. We have long recognized that it is a “fundamental rule for sentencing . . . that the person convicted of a crime is sentenced in accordance with the sentencing provisions in effect at the time the crime was committed.” State v. Overton, 279 Kan. 547, 561, 112 P.3d 244 (2005); State v. Woodbury, 132 Kan. 22, 35, 294 P. 928 (1931) (“It has long been settled that the penalty imposed must be under the law as it stood when the offense was committed.”); State v. Tyree, 70 Kan. 203, 207, 78 P. 525 (1904) (holding that sentencing the defendant to a later sentencing scheme enacted after he committed the offense is a constitutional violation of the ex post facto clause). See State v. Armstrong, 238 Kan. 559, 566, 712 P.2d 1258 (1986) (because ordinarily the criminal statute in effect at the time the criminal offense was committed is controlling, trial court did not err in refusing to dismiss prosecution for 1983 and 1984 indecent liberties with a child because of statutory changes effective later in 1984 which were to defendant’s advantage). Cf. K.S.A. 21-4723 (“prosecutions for prior crimes shall be governed, prosecuted and punished under the laws existing at the time such crimes were committed”).
The parties have not cited, and we have not been able to locate, Kansas statutes or case law that answers the specific question before us. Certainly the general guidance contained in K.S.A. 21-4711(e) regarding the scoring of out-of-state convictions as person or nonperson by using comparable Kansas offenses is of little help.
We do observe, however, that determining the criminal history of a defendant is an important factor in the present sentencing calculus. See K.S.A. 21-4704 (sentence a product of criminal history and severity level of current crime). Accordingly, using the date of commission of the prior out-of-state crime to calculate the criminal history would be consistent with our fundamental rule of sentencing for a current in-state crime: sentencing in accordance with the penalty provisions in effect at the time the crime was committed. We additionally observe that having the penalty parameters for an offense “ ‘fixed as of the date of the commission of the offense is fair, logical and easy to apply.’ ” Vandervort, 276 Kan. at 180 (quoting Sylva, 248 Kan. at 121). By contrast, using the date of the commission of the current offense to calculate a criminal history which includes out-of-state convictions increases the risk that laws will change in the intervening years, further complicates calculations, and produces irregular results. Williams admits that application of such a rule in the instant case results in one of Williams’ prior offenses scoring as a nonperson felony and another identical offense scoring as a person felony.
Our holding is consistent with those of other state courts. Indeed, if Williams had committed her prior crimes in Kansas and was being sentenced in Washington for current offenses committed there, the Washington court’s approach would be consistent with the rule we articulate today for prior crimes being committed in Washington and being sentenced in Kansas for current offenses committed here. Washington state courts compare the elements of an out-of-state crime with the elements of potentially comparable in-state crime “in effect on the date that the out-of-state crime was committed.” State v. Weiand, 66 Wash. App. 29, 33-34, 831 P.2d 749 (1992); see also Knarich v. State, 866 So.2d 165, 170 (Fla. App. 2004) (holding that “[out-of-state] offenses must be compared to offenses that were contained in the Florida Statutes that were in effect at the time the [out-of-state] offenses were committed”).
While some state courts compare the prior out-of-state offense to a current in-state crime, they apparently do so only on a statutory basis. See State v. Reece, 625 N.W.2d 822, 825-26 (Minn. 2001) (noting Minnesota’s “sentencing guidelines’ requirement that the sentencing court determine how the foreign offense would have been treated at the time of the current offense”); Com. v. Bolden, 367 Pa. Super. 333, 338, 532 A.2d 1172 (1987) (noting that “we are required to score [out-of-state] conviction as we would a ‘current equivalent Pennsylvania offense’ ”).
For Williams’ alternative argument, she contends that this court should determine the comparable Kansas offense as of the date of the sentencing for the Kansas crimes. She cites K.S.A. 21-4703(c) which provides,
“criminal history means and includes adult felony, class A misdemeanor, class B person misdemeanor, or select misdemeanor convictions and comparable juvenile adjudications possessed by an offender at the time such offender is sentenced.”
Williams reasons that “[b]ecause criminal history is calculated at the time of sentencing, the classification of out-of-state prior offenses as person or nonperson should use comparable offenses that are in existence at the time of sentencing (when criminal history is calculated).” Williams contends that this approach eliminates the irregular results of using the date of commission of the Kansas offenses: one person felony, one nonperson felony. Under her ar gument, both Washington offenses would indeed be the same: nonperson felonies.
The definition of criminal history, however, does not address whether convictions should be scored as person or nonperson felonies. Consequently, that definition is not applicable here. Additionally, using the date of sentencing for determining comparable offenses allows manipulation of the sentencing date for one’s advantage, a practice frowned upon in Kansas. “ ‘Neither the State nor a defendant may maneuver a sentencing date to take advantage of or avoid a change in a statute.’ ” Vandervort, 276 Kan. at 180 (quoting Sylva, 248 Kan. at 121). See State v. Martin, 270 Kan. 603, 610, 17 P.3d 344 (2001).
We conclude the district court correctly ruled that the comparable Kansas offenses are determined by the dates that Williams committed the prior Washington offenses. The opinion of the Court of Appeals is affirmed. Judgment of the district court is affirmed.
Davis, C.J., not participating.
Larry T. Solomon, District Judge, assigned. | [
-48,
-24,
-3,
-68,
28,
-64,
58,
-118,
2,
-89,
-90,
19,
-87,
74,
22,
107,
-61,
13,
81,
105,
-10,
-73,
99,
-63,
-10,
-6,
-21,
85,
-70,
89,
-12,
-44,
89,
48,
-126,
21,
70,
74,
37,
-104,
-116,
6,
41,
-47,
80,
65,
44,
47,
-110,
14,
-15,
30,
-79,
30,
22,
74,
41,
41,
123,
-88,
-64,
-15,
-83,
21,
-35,
54,
-77,
4,
-105,
15,
-40,
35,
-100,
-71,
0,
-24,
-70,
-90,
-126,
-12,
75,
-101,
-123,
110,
98,
33,
16,
-121,
124,
-120,
46,
127,
-65,
-26,
-112,
89,
65,
36,
-105,
-100,
125,
86,
43,
-36,
-18,
70,
31,
108,
-119,
-49,
-46,
-101,
13,
116,
-50,
59,
-9,
37,
-111,
97,
-52,
-30,
93,
-126,
123,
-77,
-18,
-74
] |
PlERRON, J.:
Timothy Wayne Craddick appeals his sentence for two counts of attempted aggravated assault. Craddick pointed his Ruger Airhawk pellet rifle at his victims and threatened to shoot them if they did not put his dog on the ground. The district court found that Craddick had committed his crimes with a firearm, which triggered a presumptive prison sentence under K.S.A. 2011 Supp. 21-6804(h). Craddick’s pellet rifle was not a firearm under K.S.A. 2011 Supp. 21-5111(m) because rather than propelling projectiles by force of an explosion or combustion, it propels projectiles by force of air or gas. The district court’s erroneous firearm designation requires us to vacate Craddick’s sentence and reverse and remand his case for resentencing.
The State charged Craddick with two counts of aggravated assault with an Airhawk air rifle. At the preliminary hearing, Crad-dick’s victims testified that on September 18, 2011, he threatened to shoot them with his “rifle gun.” The information was subsequently amended to charge two counts of attempted aggravated assault with a “pellet rifle.” Craddick pled no contest to the amended charges, and the district court adopted the preliminary hearing evidence as the factual basis for his plea.
The presentence investigation (PSI) report recommended the district court apply the special sentencing rule that changes a guidelines sentence from presumptive probation to presumptive prison if the person felony was committed with a firearm. Craddick filed an objection to the PSI report. He argued he did not commit a person felony with a firearm, triggering a presumptive prison sentence under K.S.A. 2011 Supp. 21-6804(h), because his Ruger Airhawlc pellet rifle did not qualify as a firearm under 2011 Supp. K.S.A. 21-5111(m).
The State agreed that Craddick had used a Ruger Airhawk pellet rifle to commit his crimes. After hearing the arguments of counsel, the district court found that Craddick’s crimes were committed with a firearm. Consequently, the special rule was applied and Craddick was sentenced to a controlling term of 11 months’ imprisonment-—a mitigated guidelines sentence of 11 months on one count and a standard guidelines sentence of 6 months on the other count, to ran concurrently. He timely appeals.
Craddick argues the district court should not have applied the special rule that changed his presumptive sentence from probation to imprisonment because the pellet gun he used to commit his crimes is not a firearm under K.S.A. 2011 Supp. 21-5111(m). We agree with Craddick.
Standard of Review
Whether a defendant used a firearm in the commission of a crime is a matter to be determined by the district court at sentencing, and an appellate court must affirm such determination if it is supported by competent evidence. State v. Mack, 228 Kan. 83, 85, 612 P.2d 158 (1980). Moreover, the interpretation of a sentencing statute is a question of law over which an appellate court exercises unlimited review. State v. Ardry, 295 Kan. 733, 735, 286 P.3d 207 (2012).
In State v. Davis, 227 Kan. 174, 605 P.2d 572 (1980), the Kansas Supreme Court tackled the issue of whether a starter pistol was a firearm for purposes of a sentencing rule. At that time, the Kansas Legislature had not yet defined “firearm.” After reviewing caselaw from other jurisdictions, the Davis court held: “A firearm [has the] design or capacity to propel a projectile by force of an explosion, gas, or other combustion.” 227 Kan. at 177. Because the parties had stipulated the defendant used “a .22 caliber blank gun which was incapable of firing a projectile because the barrel was blocked by a piece of metal” lacked the design or capacity to propel a projectile), the district court’s firearm designation was erroneous. 227 Kan. at 175, 178; see State v. Pelzer, 230 Kan. 780, 780-82, 640 P.2d 1261 (1982) (applying Davis definition to hold that handgun with defective firing mechanism was a firearm despite being inoperable).
In State v. Fowler, 238 Kan. 213, 708 P.2d 539 (1985), the court resolved the issue of whether a pellet gun was a firearm for purposes of a sentencing rule. It was undisputed that the defendant used a Crosman .177 caliber pellet gun. At the sentencing hearing, an expert testified the handle of the gun contained a cartridge of compressed carbon dioxide gas, pulling the trigger discharged the gas which forced a pellet through the barrel, the gun operated like a pump air rifle, and “the sudden release of compressed gas is a type of explosion.” 238 Kan. at 213-14. The court held that “the pellet gun . . . fits within our definition of a ‘firearm’ because it is capable of and was designed to ‘propel a projectile by force of. . . gas ....’” 238 Kan. at 217. But the court contradicted its holding by noting an expert had testified that “although the release of compressed air is a different type of explosion than one created by gunpowder, the principle is the same.” 238 Kan. at 217.
In State v. Johnson, 8 Kan. App. 2d 368, 657 P.2d 1139, rev. denied 233 Kan. 1093 (1983), the court addressed the issue of whether a pump air rifle was a firearm for purposes of a sentencing rule. There was evidence the air rifle used by the defendant was designed for and capable of shooting BB’s or .177 caliber pellets. The court held that the air rifle was not a firearm because it “was not originally designed to propel a projectile by explosive force nor did it have the capacity to do so.” 8 Kan. App. 2d at 370; see Fowler, 238 Kan. at 217 (leaving open the air rifle issue and the validity of Johnson).
Finally, in State v. Adams, 12 Kan. App. 2d 191, 737 P.2d 876 (1987), the court dealt with the issue of whether a pellet gun was a firearm for purposes of a sentencing rule. There was evidence tire defendant used a Daisy Model 57, .25 caliber, 6 millimeter plastic pellet gun that shot plastic pellets. But there was no evidence regarding how the plastic pellets were discharged from the Daisy—whether by force of an explosion, gas, or other combustion as required by Davis and Fowler; or by operation of a spring or other mechanical device. Admittedly, the court conducted outside research to conclude the pellet gun did not propel pellets by means of gas stored in a COa cartridge or pumped into the gun, i.e., Fowler did not control. 12 Kan. App. 2d at 196. The court held that the district court’s firearm designation was not supported by competent evidence because it was unclear “[wjhat force or forces the striking hammer sets in motion.” 12 Kan. App. 2d at 196-97.
Twenty-one years after Adams, the Kansas Legislature chose to define firearm as “any weapon designed or having the capacity to propel a projectile by force of an explosion or combustion.” K.S.A. 2011 Supp. 21-5111(m); L. 2008, ch. 150, sec. 2. At the time Crad-dick committed his crimes, a sentencing rule provided that “[w]hen a firearm is used to commit any person felony, the offender s sentence shall be presumed imprisonment.” K.S.A. 2011 Supp. 21-6804(h).
The issue we must resolve is whether a pellet gun, like the one Craddick used during the commission of attempted aggravated assault, propels a projectile by explosion or combustion under K.S.A. 2011 Supp. 21-5111(m). Fowler does not control because it interpreted the caselaw definition of a firearm, which included propulsion by gas, not the subsequent statutory definition.
The fundamental rule of statutory construction is to ascertain the legislature’s intent. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Therefore, when the statutory language is plain and unambiguous, an appellate court need not resort to statutory construction. State v. Spencer, 291 Kan. 796, 820-21, 248 P.3d 256 (2011).
An appellate court strictly construes a criminal statute in favor of the accused, which simply means that the court reads words with their ordinary meaning. Any reasonable doubt about a word’s meaning is decided in favor of the accused. State v. Bonner, 290 Kan. 290, 296, 227 P.3d 1 (2010). And it is presumed that the legislature acted with full knowledge and information about the statutory subject matter, prior and existing law, and the judicial decisions interpreting the prior and existing law and legislation. State v. Bee, 288 Kan. 733, 738, 207 P.3d 244 (2009).
Jurisdictions that define “firearm” like Kansas does—as a weapon that propels a projectile by explosion or combustion—have held that pellet guns are not firearms. California defines firearm as “a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.” Cal. Penal Code § 16520(a) (2012). California appellate courts have held that “ Toy guns obviously do not qualify as a “firearm,” nor do pellet guns or BB guns because, instead of explosion or other combustion, they use the force of air pressure, gas pressure, or spring action to expel a projectile.’ ” See People v. Law, 195 Cal. App. 4th 976, 983, 124 Cal. Rptr. 3d 779 (2011), rev. denied August 24, 2011 (quoting People v. Monjaras, 164 Cal. App. 4th 1432, 1435, 79 Cal. Rptr. 3d 926 [2008], rev. denied October 28, 2008). A Virginia appellate court interpreted the Black’s Law Dictionary 710 (9th ed. 2009) definition of firearm—“[a] weapon that expels a projectile (such as bullet or pellets) by the combustion of gunpowder or other explosive”—to exclude guns that “expel[] projectiles through the use of compressed gas.” Justiss v. Commonwealth, 61 Va. App. 261, 271-72, 734 S.E.2d 699 (2012).
Furthermore, jurisdictions that define firearm as a weapon that propels a projectile by explosion only have also held that pellet guns are not firearms. See, e.g., Miller v. State, 616 N.E.2d 750, 757, n.13 (Ind. App. 1993) (A pellet gun is not a firearm under Ind. Code § 35-47-1-5 “because carbon dioxide (C02), the propellant in this case[,] is a non combustible gas and, thus, cannot explode”; rather, “[t]he expansion of compressed gas that propels the pellet is a physical force, like tire force from a compressed spring in a BB gun.”). Finally, federal law defines firearm as “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” 18 U.S.C. § 921(a)(3)(A) (2006). But “[a] weapon, com monly known as a ‘BB’ or pellet gun, that uses air or carbon dioxide pressure to expel a projectile is . . . not a firearm.” United States Sentencing Commission Guidelines Manual (2012) § 1B1.1, cmt. n. 1.G. See United States v. Smith, 905 F.2d 1296, 1300 (9th Cir. 1990).
The Kansas Legislature adopted the Davis definition of firearm with one critical distinction: it excluded weapons that propel projectiles by force of gas. See K.S.A. 2011 Supp. 21-5111(m); Davis, 227 Kan. at 177. We must presume the legislature acted with full knowledge of the judicial decisions interpreting the existing law. See Bee, 288 Kan. at 738. Therefore, Craddick’s pellet gun is a firearm if it propels projectiles by force of an explosion or combustion. There is no direct evidence of how Craddick’s Ruger Air-hawk pellet rifle propels projectiles, but the name of the weapon suggests that it propels pellets by force of air. Cf. Adams, 12 Kan. App. 2d at 196. It has been held that an air rifle does not propel projectiles by force of an explosion. See Johnson, 8 Kan. App. 2d at 370. Courts in other jurisdictions have reached the same conclusion based on die fact that the expansion of compressed air or gas is neither an explosion nor combustion and is similar to the expansion of a compressed spring. See Law, 195 Cal. App. 4th at 983; cf. Miller, 616 N.E.2d at 757, n.13. Therefore, we hold that Craddick’s pellet gun is not a firearm under K.S.A. 2011 Supp. 21-5111(m). The district court erred in sentencing Craddick.
Sentence vacated and case remanded for resentencing. | [
17,
-13,
-3,
111,
8,
97,
56,
56,
82,
-5,
103,
83,
111,
-49,
5,
123,
109,
71,
116,
121,
-60,
-73,
123,
65,
-14,
59,
-93,
-45,
51,
75,
-84,
-41,
24,
112,
-62,
85,
38,
8,
37,
88,
-114,
5,
-69,
-32,
83,
74,
40,
110,
28,
15,
49,
-97,
-14,
42,
86,
-121,
72,
104,
10,
-87,
-63,
89,
-101,
21,
-23,
50,
-94,
22,
-100,
4,
80,
63,
-104,
57,
8,
-88,
123,
-122,
-128,
84,
45,
-103,
-124,
102,
34,
36,
41,
-19,
-87,
8,
79,
94,
-85,
-90,
-104,
65,
64,
4,
-106,
-97,
102,
-105,
14,
116,
103,
76,
63,
124,
-106,
-42,
-40,
-77,
79,
33,
-34,
-93,
-21,
5,
32,
37,
-51,
-26,
86,
85,
116,
-65,
-22,
-16
] |
Bruns, J.:
Billy J. Stanley, a civilly committed sexually violent predator, is a patient in the custody of the Secretary of the Kansas Department for Aging and Disability Services pursuant to the Sexually Violent Predator Act (SVPA), K.S.A. 59~29a01 et seq. During 2012, Stanley filed three separate petitions for writs of habeas corpus under K.S.A. 2012 Supp. 60-1501 in the Pawnee County District Court. Ultimately, the district court dismissed Stanley’s petitions for failure to exhaust administrative remedies prior to seeking court intervention. On appeal, Stanley argues that the enactment of K.S.A. 2012 Supp. 59-29a24 excuses him from his obligation to exhaust administrative remedies prior to filing a petition seeking a writ of habeas corpus. Based on the language of the statutes in question, as well as upon the legislative history, we conclude that civilly committed sexually violent predators are still required to exhaust any applicable administrative remedies prior to seeking the extraordinary remedy of habeas corpus under K.S.A. 2012 Supp. 60-1501. Accordingly, we affirm the district court’s dismissal of Stanley’s petitions for writs of habeas corpus.
Facts
The facts of this case are not in dispute. During August 2012, Stanley—who is a patient in the Sexual Predator Treatment Program (SPTP) at Larned State Hospital—filed three petitions in Pawnee County District Court seeking writs of habeas corpus pursuant to K.S.A. 2012 Supp. 60-1501. The district court stayed each of the habeas corpus actions for 90 days so that Stanley could exhaust his administrative remedies through the SPTP.
On January 7, 2013, the district court dismissed each of the ha-beas corpus petitions because Stanley had failed to timely exhaust administrative remedies. Stanley filed timely notices of appeal, and appellate counsel was appointed to represent him. Subsequently, on March 25, 2013, this court consolidated the three cases because they present the same issue on appeal.
Analysis
Issue Presented
The sole issue presented is whether the district court erred in dismissing Stanley’s K.S.A. 2012 Supp. 60-1501 petitions for writs of habeas corpus for his failure to timely exhaust administrative remedies. Specifically, Stanley argues that K.S.A. 2012 Supp. 5929a24(d) eliminates any requirement that patients in the SPTP exhaust administrative remedies prior to the filing of a petition for writ of habeas corpus. Stanley contends that in enacting K.S.A. 2012 Supp. 59-29a24, the legislature intended to require patients in the SPTP to exhaust administrative remedies before filing all civil actions except habeas corpus against the State or its political officials. In response, the State contends that the legislature did not intend to exempt patients in the SPTP from the requirement that they exhaust any applicable administrative remedies prior to filing a petition for writ of habeas corpus under K.S.A. 2012 Supp. 60-1501.
On appeal, Stanley does not argue that appropriate administrative remedies were unavailable to him. He also does not argue that they failed to'meet due process requirements, thereby denying him access to the courts. Accordingly, we do not address these issues in this decision. Likewise, because of the narrow issue presented in this case—whether K.S.A. 2012 Supp. 59-29a24(d) negates tire exhaustion requirement for habeas corpus actions brought by SPTP patients—we express no opinion on the merits of Stanley’s underlying claims nor do we determine the circumstances under which exhaustion of administrative remedies is appropriate.
Standard of Review
As the issue presented involves a matter of statutory interpretation, our review is unlimited. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013). The fundamental goal in statutory construction is to ascertain the intent of the legislature. We examine the plain meaning of the statutory language by giving common words their ordinary meaning. If the words used in a statute are unclear or ambiguous, we then look to legislative histoiy or other background considerations to determine the legislature’s intent. But even if the language of a statute is plain and unambiguous, we still must harmonize or reconcile various provisions of an act together to avoid statutory interpretations that would be unreasonable or render legislation meaningless. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106 (2013).
Extraordinary Legal Remedy of Habeas Corpus
The United States Constitution provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const, art. I, § 9. Similarly, the right to a writ of habeas corpus is protected in the Bill of Rights of the Kansas Constitution. Kan. Const. Bill of Rights, § 8. In fact, the writ of habeas corpus predates both the United States Constitution and the Kansas Constitution. See, e.g., Wilkes, From Oglethorpe to the Overthrow of the Confederacy: Habeas Corpus in Georgia, 1733-1865, 45 Ga. L. Rev. 1015, 1022-23 (2011).
The Kansas Supreme Court has described a writ of habeas corpus as “an extraordinary legal remedy [that] should not be used when relief may be obtained by ordinaiy procedure.” Foster v. Maynard, 222 Kan. 506, 513, 565 P.2d 285 (1977). Except for matters pertaining to sentencing covered by K.S.A. 60-1507, the statutory procedures required to obtain a writ of habeas corpus in Kansas are found in K.S.A. 60-1501 et seq. See Safarik v. Bruce, 20 Kan. App. 2d 61, 66-67, 883 P.2d 1211, rev. denied 256 Kan. 996 (1994).
K.S.A. 2012 Supp. 60-1501(a) provides that “any person in this state who is detained, confined or restrained of liberty on any pretense whatsoever... may prosecute a writ of habeas corpus.” (Emphasis added.) Moreover, “[proceedings on a petition for writ of habeas corpus filed pursuant to K.S.A. 60-1501 are not subject to ordinary rules of civil procedure.” Bankes v. Simmons, 265 Kan. 341, Syl. ¶ 1, 963 P.2d 412, cert. denied 525 U.S. 1060 (1998); see 5 Gard, Casad, & Mulligan, Kansas Law and Practice, Kansas C. Civ. Proc. Annot. § 60-1501 (5th ed. 2012). Hence, except in matters brought under K.S.A. 60-1507, the procedures of K.S.A. 2012 Supp. 60-1501 are to be used by all petitioners to obtain a writ of habeas corpus in Kansas.
Development of Exhaustion Requireinent in Kansas
Kansas courts have i-ecognized for many years the obligation of a person who is detained, confined, or restrained of liberty to exhaust any appropriate administrative remedies before seeking a writ of habeas corpus. See Battrick v. State, 267 Kan. 389, 398-99, 985 P.2d 707 (1999) (discussing the development of the exhaustion requirement for inmates filing habeas corpus petitions both prior to and after the enactment of K.S.A. 75-52,138 in 1994, which codified the common-law exhaustion requirement for inmates). As early as 1972, the Kansas Supreme Court expressly held—in a ha-beas corpus action brought by a detained inmate—that “[wjhen appropriate administrative procedures have been established then tiróse remedies will be required to have been exhausted prior to resort to the courts.” Levier v. State, 209 Kan. 442, 452, 497 P.2d 265 (1972).
In addition, our Supreme Court emphasized in Levier that
“disputed issues of fact respecting mistreatment of inmates should be determined administratively in a grievance procedure wherein the inmate is afforded the basic elements of due process, that is, notice and an opportunity to be heard in an orderly proceeding adapted to the nature of the case. [Citation omitted.] The particular type of administrative procedure to be employed should be left to the sound discretion of correctional authorities so as to accommodate the needs of the penal system as well as the interests of the inmates.” 209 Kan. at 451.
Since Levier, numerous other Kansas cases have applied the common law to require inmates to exhaust appropriate adminis trative remedies prior to seeking a writ of habeas corpus under K.S.A. 60-1501. See Case v. Crouse, 210 Kan. 341, 342, 502 P.2d 785 (1972) (requiring an inmate to exhaust administrative remedies under the grievance procedures adopted by the state director of penal institutions); Davis v. State, 211 Kan. 257, 505 P.2d 293 (1973) (“In Levier, we suggested appropriate administrative procedures be established and the remedies required thereby be exhausted before there is a resort to the courts.”); Fletcher v. Nelson, 253 Kan. 389, 393, 855 P.2d 940 (1993) (“Administrative remedies must be exhausted before turning to a court through a habeas corpus proceeding . . . .”).
The obligation to exhaust other remedies prior to filing habeas corpus actions, however, is not limited to criminal inmates. Rather, the exhaustion requirement has been applied in habeas corpus actions brought by other persons who claim that their liberty has been unlawfully restrained. More tiran 25 years before Levier, in a ha-beas corpus action involving the custody of an adopted child, the Kansas Supreme Court invoked tire exhaustion requirement and found that “[s]uch a rule is so well recognized that it does not require citation of authorities.” Wilcox v. Fisher, 163 Kan. 74, 80, 180 P.2d 283 (1947). Thus, the exhaustion requirement is not merely a creature of statute nor is it based on the reason that a person is detained.
Significantly, in Williams v. DesLauriers, 38 Kan. App. 2d 629, Syl. ¶ 6, 172 P.3d 42 (2007), this court held that “[bjefore seeking judicial review in a K.S.A. 60-1501 proceeding, a [SPTP patient] must exhaust all available administrative remedies.” In support of this finding, the panel in Williams cited to Fletcher, 253 Kan. 389, Syl. ¶ 3. We note, however, that a panel of this court subsequently found that “exhaustion is not required when . . . the constitutionality of an administrative rule in [the SPTP] is at issue.” Merryfield v. Kansas Social and Rehabilitation Services, No. 102,384, 2009 WL 5206252, at *1 (Kan. App. 2009) (unpublished opinion). We also note that the Kansas Supreme Court has held that “[e]xlraustion of administrative remedies is not required when administrative remedies are inadequate or would serve no purpose.” In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, Syl. ¶ 2, 24 P.3d 128 (2001). Again, this opinion does not address the issue of what administrative remedies may be appropriate nor do we decide the merits of Stanley’s underlying claims.
Statutory Interpretation of K.S.A. 2012 Supp. 59-29a24 and KS.A. 2012 Supp. 60-1501
The 2012 Kansas Legislature enacted K.S.A. 2012 Supp. 59-29a24 and amended K.S.A. 60-1501 in the same bill—House Substitute for Senate Bill 74. Section 1 of the bill enacted new statutory requirements that must be followed uncivil actions filed by SPTP patients against the State, its officials, or-its employees acting within the scope of their employment. At the same time, section 2 of the bill added a new provision to K.S.A. 60-1501 that addressed the time requirements for the filing of a petition for a writ of habeas corpus by an SPTP patient.
Specifically, section 1 of House Substitute for Senate Bill 74— codified at K.S.A. 2012 Supp. 59-29a24—-provides:
“(a) Any patient in the custody of the secretaiy [for aging and disability] services pursuant to K.S.A. 59-29a01 et seq., and amendments thereto, prior to filing any civil action naming as the defendant pursuant to the rules of civil procedure, the state of Kansas, any political subdivision of tire state of Kansas, any public official, the secretary [for aging and disability] services or an employee of the department [for aging and disability] services, while such employee is engaged in the performance of such employee’s duty, shall be required to have exhausted such patient’s administrative remedies, established by procedures adopted pursuant to subsection (d) of K. S .A. 59-29a22, and amendments thereto, concerning such civil action. Upon filing a petition in a civil action, such patient shall file with such petition proof that the administrative remedies have been exhausted.
“(b) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that:
(1) The allegation of poverty is untrue, notwithstanding the fact that a filing fee, or any portion thereof has been paid; or
(2) the action or appeal:
(A) Is frivolous or malicious;
(B) fails to state a claim on which relief may be granted; or
(C) seeks monetaiy relief against a defendant who is immune from such relief.
“(c) In no event shall such patient bring a civil action or appeal a judgment in a civil action or proceeding under this section if such patient has, on three or more prior occasions, while in tire custody of the secretary [for aging and disability] services pursuant to K.S.A. 59-29a01 et seq., and amendments thereto, brought an action or appeal in a court of the state of Kansas or of tire United States that was dismissed on the grounds that it was frivolous, malicious or failed to state a claim upon which relief may be granted, unless the patient is under imminent danger of serious physical injury.
“(d) The provisions of this section shall not apply to a writ of habeas corpus.”
Furthermore, section 2 of House Substitute for Senate Bill 74— codified at K.S.A. 2012 Supp. 60-1501(c)—provides:
“Except as provided in , and amendments thereto, a patient in tire custody of the secretary [for aging and disability] services pursuant to et seq., and amendments thereto, shall file a petition for writ pursuant to subsection (a) within 30 days from the date tire action was final, but such time is extended during the pendency of the patient’s timely attempts to exhaust such patient’s administrative remedies.”
It is undisputed that K.S.A. 2012 Supp. 59-29a24(a) codifies an exhaustion of administrative remedies requirement for patients in the SPTP filing civil actions against the State, its political subdivisions, its officers, or its employees. Likewise, it is undisputed that K.S.A. 2012 Supp. 59-29a24(b) provides various grounds for the dismissal of a civil action filed against the State. Furthermore, it is undisputed that K.S.A. 2012 Supp. 59-29a24(c) places restrictions on the number of civil actions or appeals that an SPTP patient may file “unless the patient is under imminent danger of serious physical injury.”
The parties do, however, dispute the meaning of K.S.A. 2012 Supp. 59-29a24(d), which provides that “[t]he provisions of this section shall not apply to a writ of habeas corpus.” (Emphasis added.) In particular, the parties cannot agree as to what tire words “this section” refer. Sometimes, a statutory exception—like the one found in K.S.A. 2012 Supp. 59-29a24(d)—is intended to apply only to the immediately preceding section while other times such an exception is intended to apply to an entire statute or act. See 1A Singer & Singer, Statutes and Statutory Construction § 20:22 (7th ed. 2009). At the very least, legislative intent is difficult to ascertain when an exception uses vague references to another section or sections of a statute or act. See State v. Casey, 42 Kan. App. 2d 309, 315-19, 211 P.3d 847 (2009); Meridian Oil v. N.M. Tax. & Rev. Dept., 122 N.M. 131, 133-35, 921 P.2d 327 (Ct. App. 1996).
It is possible—-as Stanley suggests—that the legislature intended for none of the provisions of K.S.A. 2012 Supp. 59-29a24, including the exhaustion of administrative remedies requirement found in K.S.A. 2012 Supp. 59-29a24(a), to apply to habeas corpus actions brought by SPTP patients under K.S.A. 2012 Supp. 60-1501. On tire other hand, it is possible—as the State suggests—that the legislature intended only to exclude habeas corpus actions from the limitation on the number of civil actions that an SPTP patient can file, as set forth in K.S.A. 2012 Supp. 59-29a24(c). Compounding tire uncertainty is the fact that at the same time—and in the same bill—that the legislature enacted K.S.A. 2012 Supp. 59-29a24, it also enacted K.S.A. 2012 Supp. 60-1501(c), which clearly contemplates the exhaustion of administrative remedies prior to SPTP patients filing habeas corpus actions.
Given this lack of clarity, we look to the legislative history to assist us in determining the legislature’s intent in enacting K.S.A. 2012 Supp. 59-29a24 and K.S.A. 2012 Supp. 60-1501(c). See Northern Natural Gas Co., 296 Kan. at 918. In determining the legislature’s intent, we consider “the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under various suggested interpretations.” See State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 4, 69 P.3d 1087 (2003). Here, we find that all of these coirsiderations support the legislative intent suggested by the State.
In reviewing the legislative history, we see the bill that would eventually be passed by the 2012 legislature as House Substitute for Senate Bill 74 originated in the 2011 session as House Bill 2313. See Minutes, Sen. Comm, on Judiciary, March 16,2012. As initially drafted, new section 1 of House Bill 2313 included only the statutory language that is now found in K.S.A. 2012 Supp. 59-29a24(a)-(c). In other words, the language now found in K.S.A. 2012 Supp. 59-29a24(d) was not included in the initial version of House Bill 2313. However, from the outset, section 2 of House Bill 2313 contained language amending K.S.A. 60-1501 to include SPTP patients and to provide them with an extension of the 30-day filing deadline while they are attempting to exhaust appropriate administrative remedies.
Early in 2012, the House Judiciary Committee passed an amendment to House Bill 2313. The amendment was intended to “clearly delineate that new section 1(c) [which is now codified in K.S.A. 2012 Supp. 59-29a24(c)] does not apply to habeas actions.” Minutes, House Comm, on Judiciary, February 9, 2012 (H.B. 2313). Although the committee minutes reflect that the amendment was intended to be placed “in new section 1(c),” the amendment somehow ended up in new section 1(d) of House Bill 2313, and it ultimately found its way into K.S.A. 2012 Supp. 59-29a24(d). Nevertheless, this history clearly shows that the legislature intended for die exception now found in K.S.A. 2012 Supp. 59-29a24(d) to apply only to die limitations—now found in K.S.A. 2012 Supp. 59-29a24(c)—on the number of civil actions SPTP patients can file against the State.
Furthermore, we find nothing in the legislative history to suggest that the legislature intended to exempt SPTP patients from the requirement to exhaust administrative remedies prior to the filing of a habeas corpus action under K.S.A. 2012 Supp. 60-1501. In fact, a review of the legislative history reveals that one of the pri-maiy purposes of House Bill 2313 was to malee it clear that SPTP patients—like others who claim to have been unlawfully restrained of liberty—must exhaust appropriate administrative remedies prior to seeking a writ of habeas corpus. It also appears likely that tire legislature intended to clear up any confusion over die exhaustion requirement caused by the holding in Merryfield, 2009 WL 5206252, and similar appellate opinions. See State v. Bee, 288 Kan. 733, 738, 207 P.3d 244 (2009) (stating we presume the legislature acts witir knowledge of the law).
Chief Judge Bruce T. Gatterman of the Pawnee County District Court—the county in which most of the civilly committed sexually violent predators are confined as patients—submitted written testimony to the House Judiciary Committee. He explained that tire adoption of House Bill 2313 would provide “a clear expression of legislative intent requiring exhaustion of administrative remedies prior to the filing of any habeas action.” (Emphasis added.) Minutes, House Comm, on Judiciary, January 25, 2012 (H.B. 2313), attach. 7. According to Judge Gatterman, SPTP patients had filed 116 habeas corpus actions in the Pawnee County District Court during 2011. Hence, he argued that requiring SPTP patients to exhaust administrative remedies before filing a habeas corpus action saves valuable judicial resources and that it allows for the resolution of claims “through an expedient and fair grievance procedure at the administrative level.” Minutes, House Comm, on Judiciaiy, January 25, 2012 (H.B. 2313), attach. 7.
Similarly, Carl “Bill” Ossmann, then Chief Litigation Attorney at SRS and currently a judge of the Shawnee County District Court, testified in support of House Bill 2313. Ossmann noted that as compared to lawsuits or habeas corpus actions in the district court, administrative remedies can often be more efficient and economical in resolving the complaints of patients in the SPTP. He explained that if patients prevail at the administrative level, they will not need to go to the district court. And if not, “the exhaustion of administrative remedies results in a record which might be used by a district judge” to assist in resolution of a claim subsequently asserted in a habeas corpus action. Minutes, House Comm, on Judiciary, January 25,2012 (H.B. 2313), attach. 5. In his testimony, Ossmann also noted that House Bill 2313 was modeled after K.S.A. 75-52,138, which codified the exhaustion of administrative remedies for criminal inmates who bring habeas corpus actions under K.S.A. 60-1501.
Dr. Austin T. DesLauriers, Clinical Program Director for the SPTP, also testified in support of House Bill 2313. Dr. DesLauriers explained that actions brought by patients in the SPTP in the district court were taking up the valuable time and resources of his staff. He recognized that SPTP patients “should be able to appeal to the [district court] if their rights are violated,” but he also pointed out that responding to meritless claims filed in the district court was taking time “away from that which could be spent on the mission of the program, which is to provide quality treatment.” Minutes, House Comm, on Judiciaiy, January 25, 2012 (H.B. 2313), attach. 6.
Dr. DesLauriers testified that there are two administrative processes available to address complaints by SPTP patients depending on the severity of the complaint. A multiple-layer grievance pro cedure deals with lower level complaints, such as if one patient took property from another patient. For more serious complaints, such as those dealing with rule violations, an assigned hearing officer listens to a patient’s complaints and attempts to resolve tire issue. If the SPTP patient is not satisfied with the hearing officer’s resolution of the complaint, the patient can then take the case to higher levels of review within the program. Minutes, House Comm, on Judiciary, January 25, 2012 (H.B. 2313).
House Bill 2313, as amended by the House Judiciary Committee, passed the full House ¡on February 23, 2012, and proceeded to the Senate. See House-J. 2012, p. 1954. In a hearing held on March 15, 2012, the Senate Judiciary Committee received nearly identical testimony as that previously received by the House Judiciary Committee. Minutes, Senate. Comm, on Judiciary, March 15, 2012. A few days later, the House Judiciary Committee recommended substituting House Bill 2313, without additional amendment, for Senate Bill 74. House J. 2012, p. 2182.
House Substitute for Senate Bill 74 unanimously passed the House on March 21, 2012. House J. 2012, p. 2259. Subsequently, on March 28, 2012, the Senate passed the final version of the bill. Sen. J. 2012, p. 2091. And on April 6, 2012, the Governor signed House Substitute for Senate Bill 74. L. 2012, ch. 90.
Conclusion
In light of the historical background of House Substitute for Senate Bill No. 74, the circumstances attending its passage, and the purpose to be accomplished, we find that the legislature clearly intended for SPTP patients to exhaust appropriate administrative remedies prior to filing civil actions—including habeas corpus actions under K.S.A. 2012 Süpp. 60-1501—against the State. Moreover, based on the legislative history, we agree with the district court that the legislature intended for'the language found in K.S.A. 2012 Supp. 59-29a24(d) to apply only to the filing restrictions set forth in K.S.A. 2012 Supp. 59-29a24(c).
We, therefore, conclude that tire district court did not err in dismissing Stanley s petitions for writs of habeas corpus for failure to exhaust administrative remedies.
Affirmed. | [
-80,
-32,
-97,
94,
11,
97,
34,
52,
67,
-77,
119,
83,
-83,
-24,
5,
123,
75,
99,
84,
121,
-113,
-77,
95,
-47,
-90,
-5,
-15,
-33,
51,
-33,
-4,
-76,
76,
-16,
-118,
52,
2,
-126,
41,
28,
-114,
5,
-104,
-16,
-45,
2,
48,
111,
-42,
3,
49,
95,
-77,
42,
18,
-57,
73,
44,
-39,
-20,
81,
-11,
-101,
21,
110,
18,
-93,
-124,
28,
103,
-48,
46,
-100,
57,
0,
-23,
115,
38,
-62,
116,
79,
-83,
-96,
103,
98,
35,
29,
-19,
-128,
-119,
-121,
-3,
-115,
-90,
-103,
72,
99,
13,
-106,
-99,
84,
22,
42,
120,
-19,
-20,
53,
108,
-118,
-38,
-58,
-109,
-49,
124,
14,
49,
-17,
5,
-96,
53,
-97,
-10,
122,
87,
120,
-70,
-18,
-10
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.