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The opinion of the court was delivered by
Biles, J.:
This is an interlocutory appeal challenging a district courts decision to set aside a dismissal order in a personal injury lawsuit more than 4 years after that order was entered and the case was closed. The threshold question is whether a common-law exception to our statutory jurisdictional requirements remains valid, giving us the ability to decide this question. See Brown v. Fitzpatrick, 224 Kan. 636, 585 P.2d 987 (1978). The Court of Appeals dismissed the case for lack of jurisdiction, determining Brown was no longer viable in light of more recent caselaw from this court. Wiechman v. Huddleston, No. 110,656, 2014 WL 4996205, at *5 (Kan. App. 2014) (unpublished opinion).
We agree with the panel and overrule Broum to the extent it endorsed a judicially created appeal right in a civil case outside of those created by statute. See Board of Sedgwick County Comm'rs v. City of Park City, 293 Kan. 107, 111, 260 P.3d 387 (2011) (holding in a civil case that appellate courts have no authority to fashion equitable exceptions to statutory limitations on appellate jurisdiction). This appeal must be dismissed because it was not brought in accordance with the statute governing interlocutory appeals. See K.S.A. 2015 Supp. 60-2102(c); see also Supreme Court Rule 4.01 (2015 Kan. Ct. R. Annot. 29).
Factual and Procedural Background
This litigation began in September 2007, when Byron Wiech-man sued Mark Huddleston for negligence after sustaining injuries in a September 2005 car accident. Huddlestons insurer paid Wiechmaris insurer $7,135.15 for reimbursement of Personal Injury Protection (PIP) benefits. In March 2008, Huddleston’s insurer, through its third party administrator, Claims Professionals Inc., sent a letter stating “today wherein we agreed to extend out insureds policy limit of $25,000 to you on behalf of your client.” The letter also indicated a release for all claims against Huddleston was enclosed, and “[u]pon receipt of the properly executed release, we will issue payment in the amount of $25,000 and consider this matter resolved.”
In August 2008, Wiechmaris attorney accepted the $25,000 offer and returned the completed release of claims form. In September, Wiechmaris attorney notified the district court the case had settled. Nothing additional occurred in the case file until the court dismissed the litigation for lack of prosecution in December 2008.
More than 4 years later, Wiechman filed a motion to set aside the dismissal order. He alleged that although he had accepted the settlement offer, he never received payment. He also filed a separate contract lawsuit alleging breach of the settlement agreement. These disputes were not consolidated and have been on separate tracks through the judicial system.
On the motion to reinstate the original negligence action, the parties disputed whether the district court had jurisdiction to set aside the 2008 dismissal order. K.S.A. 2015 Supp. 60-260(b), which is the applicable statute, gives district courts discretion to relieve a party from a final judgment for the following reasons:
“(1) Mistake, inadvertence, surprise or excusable neglect;
“(2) newly discovered evidence drat, with reasonable diligence, could not have been discovered in time to move for a new trial under subsection (b) of K.S.A. 60-259, and amendments thereto;
“(3) fraud, whether previously called intrinsic or extrinsic, misrepresentation or misconduct by an opposing party;
“(4) the judgment is void;
“(5) die judgment has been satisfied, released or discharged; it is based on an earlier judgment tiiat has been reversed or vacated; or applying it prospectively is no longer equitable; or
“(6) any other reason tiiat justifies relief.” K.S.A. 2015 Supp. 60-260(b).
Different time limitations apply depending on the reason invoked. A motion under subsection (b) must be made within a reasonable time, but for reasons under paragraphs (b)(1), (2), and (3) a movant must bring the motion no more than 1 year after the entry of the judgment or order or the date of the proceeding. See K.S.A. 2015 Supp. 60-260(c).
At the motion hearing, Huddleston argued Wiechmans claim fit within paragraph (b)(1) or (3), so he asserted the motion was untimely because it was not filed within 1 year of dismissal. But Wiechman argued the motion was governed by paragraph (b)(6), which was not subject to the 1-year limitations period. When asked by the court why the effort to reopen the lawsuit was not filed sooner, counsel acknowledged: “I probably should have filed it earlier but, you know, I thought we could get something worked out.”
At the conclusion of the hearing, the district court granted Wiechmans motion to set aside the dismissal. But in doing so, it did not address K.S.A. 2015 Supp. 60-260 or whether the 4-year delay in bringing the motion was reasonable. Instead, the court focused on what it saw as the insurers unfairness in not paying the settlement.
Later, at a hearing on a motion to reconsider, the district court reaffirmed its decision to set aside the 4-year-old dismissal order. Ruling from the bench, the district court suggested it was unnecessary to analyze the motion under the requirements of K.S.A. 2015 Supp. 60-260(b) because the dismissal order was administrative in nature, apparently because it was based on a lack of prosecution. The district court held Wiechman had established “good cause” for setting aside the dismissal because he reasonably relied on the insurers documents and phone conversations when his attorney told the court the case had settled. The district court again did not discuss whether the 4-year delay was reasonable.
Huddleston filed this interlocutory appeal, arguing the district court lacked jurisdiction to set aside the dismissal order because Wiechmans motion was untimely under K.S.A. 2015 Supp. 60-260(c). Pluddleston did not seek certification for his interlocutoiy appeal under K.S.A. 2015 Supp. 60-2102(c) and Supreme Court Rule 4.01 (2015 Kan. Ct. R. Annot. 29). Instead, he argued a common-law jurisdictional exception permitted an appeal from an order setting aside a final judgment, citing Brotan.
In dismissing the appeal for lack of jurisdiction, the Court of Appeals acknowledged the jurisdictional exception recognized in Brown would arguably apply but questioned whether Brown was still good law. Wiechman, 2014 WL 4996205, at *4. Citing our reasoning in Park City, the panel held that judicially created exceptions conferring appellate jurisdiction absent statutory authority were no longer valid. Wiechman, 2014 WL 4996205, at *5.
Huddleston petitioned for this court’s review, which was granted. See K.S.A. 20-3018(b). Jurisdiction is proper under K.S.A. 60-2101(b) (review of Court of Appeals decisions).
Mootness
At the outset, we must consider a suggestion made for the first time during oral argument by Wiechmans counsel that this appeal has become moot because he prevailed in the separate breach of contract lawsuit after the district court reinstated the negligence action. In essence, Wiechmans counsel represented that since his clients breach of contract claim had been resolved, his client no longer had any interest in this appeals outcome, although it was additionally noted that issues remained outstanding over prejudg ment interest and whether a fraud claim could be asserted against Huddleston’s insurer. In rebuttal, Huddleston’s attorney disagreed the appeal was moot and noted Wiechman had not dismissed the underlying negligence action that launched this interlocutory appeal. Wfe agree with Huddleston.
An appeal will not be dismissed for mootness unless it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties’ rights. McAlister v. City of Fairway, 289 Kan. 391, 400, 212 P.3d 184 (2009); State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 454, 172 P.3d 1154 (2007). The record on appeal in this case provides no such showing.
In fact, just a week prior to oral arguments, Wiechman filed pleadings urging us to affirm the Court of Appeals ruling. In addition, the representations made at oral arguments by Wiechman s counsel are inconsistent with the showing required for us to determine the case is moot. Accordingly, we hold the case is not moot.
The Lack of Appellate Jurisdiction
Huddleston argues the panel erred when it dismissed this appeal for lack of jurisdiction. He admits K.S.A. 2015 Supp. 60-2012(a) generally governs appeals to the Court of Appeals as a matter of right and further concedes his appeal is not authorized by that statute because the order in controversy is not a final decision. See Kaelter v. Sokol, 301 Kan. 247, 249-50, 340 P.3d 1210 (2015) (“A 'final decision’ generally disposes of the entire merits of a case and leaves no further questions or possibilities for future directions or actions by the lower court.”). Instead, Huddleston argues this appeal is authorized by the Brown jurisdictional exception, and the panel erred when it overruled Brown. In contrast, Wiechman accepts the panel’s view and argues Brown is no longer good law in light of more recent caselaw.
Standard of Review
An appellate court exercises unlimited review over jurisdictional issues and has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, the court must dismiss the appeal. Kaelter, 301 Kan. 247, Syl. ¶ 1. But we also must consider whether this court’s 1978 Brown decision has lost its precedential value, so we need to consider the doctrine of stare decisis because this court generally follows an established point of law in subsequent cases “unless clearly convinced it was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.” Miller v. Johnson, 295 Kan. 636, 653, 289 P.3d 1098 (2012).
The Brown exception is no longer valid.
Huddleston agrees there is no appellate jurisdiction without application of Brown, so it is necessary to consider that case’s rationale and holding. The litigation began when the plaintiff sued K.N. Fitzgerald for payment on a promissory note, and the claim was dismissed for lack of prosecution. More than 2 years after the dismissal, the claim was reinstated under a prior version of K.S.A. 60-260(b)(6).
Fitzgerald filed an interlocutory appeal challenging the reinstatement, and Brown opposed the appeal, arguing the appellate court lacked jurisdiction because the order reinstating the case was not a final order under K.S.A. 60-2102(a)(4). The Brown court held there was a “jurisdictional exception” applying to orders under K.S.A. 60-260(b) when “an order granting relief under authority of K.S.A. 60-260 is challenged on jurisdictional grounds.” 224 Kan. at 639.
The Brown court principally relied on federal caselaw adopting an identical exception for orders entered under the analogous federal rule, Fed. R. Civ. Proc. 60(b). The court reasoned that since K.S.A. 60-260(b) was fashioned after the federal rule: “in the interest of consistency with the federal case law this court feels the jurisdictional exception’ should be extended in Kansas to orders under K.S.A. 60-260(b).” 224 Kan. at 639. The court noted Kansas recognized a similar exception for orders granting a new trial under K.S.A. 60-259(a) based on federal caselaw interpreting Fed R. Civ. Proc. 59(d). The court then observed that the exception had been criticized as unwise because it leads to many interlocutory appeals, citing 11 Wright & Miller, Federal Practice and Procedure: Civil § 2871, p. 260 (1969). But in the end, the court concluded consistency with the federal caselaw trumped those concerns. 224 Kan. at 638-39.
In Huddleston’s appeal, the panel recognized Brown’s application but held Brown was no longer valid given our more recent Park City decision. Wiechman, 2014 WL 4996205, at *4-5. In Park City, the district court granted a municipality additional time to file a motion seeking postjudgment relief from a summary judgment order — even though the district court lacked statutory authority to grant that extension. The delay rendered Park City’s notice of appeal untimely under the applicable statute. Park City attempted to avoid a jurisdictional bar by invoicing the doctrine of unique circumstances, which was another judicially created exception permitting an untimely appeal when the appellant reasonably relied on some judicial action that purportedly extended the time period for bringing the appeal. 293 Kan. at 108-09.
The Park City court recognized that Kansas courts had been following the United States Supreme Court’s lead when it adopted the unique circumstances doctrine, but this court further noted that the United States Supreme Court had overruled that doctrine after concluding Congress had exercised its constitutional authority to limit the appellate courts’ jurisdiction and that appellate courts could not create equitable exceptions to those legitimate statutory requirements. 293 Kan. at 117 (citing Bowles v. Russell, 551 U.S. 205, 127 S. Ct. 2360, 168 L. Ed. 2d 96 [2007]).
The Park City court followed suit and overruled the doctrine in Kansas based on the same reasoning, stating:
“Consequently, we reject Park City’s argument that the unique circumstances doctrine saves its appeal. As stated in Bowles, ‘Because this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the “unique circumstances” doctrine is illegitimate.”’ 293 Kan. at 120 (quoting Bowles, 551 U.S. at 214).
The rationale from Park City answers the jurisdictional question raised by Huddleston. We have often reiterated as a “longstanding rule” that appellate jurisdiction in civil cases is defined by statute, and the right to appeal is neither vested nor a constitutional right. 293 Kan. at 111 (collecting cases); see also Kaelter, 301 Kan. at 249 (“ ‘Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute.’”); Williams v. Lawton, 288 Kan. 768, 778, 207 P.3d 1027 (2009) (same). But the Brown exception is inconsistent with that principle because the appeal statute, K.S.A. 2014 Supp. 60-2102, does not grant Huddleston a right to appeal the district courts order reinstating Wiechman’s claim. And this courts rationale in Park City is easily applied to the Brown jurisdictional exception at issue here. As the panel held:
“The jurisdiction exception for nonflnal orders found in Brown is directly analogous to the unique circumstances’ exception reexamined in Park City. Both are court-made equitable exceptions to the jurisdictional requirements created by the legislature. Because the jurisdiction exception created in Brown circumvents the applicable statute — here, K.S.A. 2013 Supp. 60-2102—it is also illegitimate under the rationale of Park City.” Wiechman, 2014 WL 4996205, at *5.
In addition, we note that since its 1978 adoption, the Brown exception has been rarely invoked. We are aware of only two subsequent cases applying the exception to establish appellate jurisdiction. See Chowning, Inc. v. Dupree, 6 Kan. App. 2d 140, 626 P.2d 1240 (1981) (order to set aside dismissal for lack of prosecution appealable under the “jurisdictional exception”); In re Marriage of Ariaz, No. 105,224, 2012 WL 98490 (Kan. App. 2012) (unpublished opinion) (applying “jurisdictional exception” to allow appeal from K.S.A. 60-260 order challenging district courts jurisdiction to enter it). Based on this, overruling Brown has limited impact on the courts caselaw.
We note further that the exception’s wisdom continues to be questioned by legal commentators and some courts. See 11 Wright and Miller, Federal Practice and Procedure: Civil 3d § 2871, p. 591 (2012) (characterizing it as an “unwise doctrine, since it multiplies interlocutory appeals and requires the appellate courts to pass on the claim of lack of power”). This criticism led the New Mexico Court of Appeals to decline adopting the exception in Baca v. Atchison, Topeka & Santa Fe Ry., 121 N.M. 734, 918 P.2d 13 (1996) (adopting the exception would “create an anomaly under New Mexico law”). On the other hand, the federal courts continue to apply this exception, which provides some authority for main taining it in Kansas. See Asset Acceptance, LLC v. Moberly, 241 S.W.3d 329 (Ky. 2007) (adopting the jurisdictional exception because the federal practice “remains viable” after 120 years); Baca, 121 N.M. at 736 (noting most federal courts of appeals have held there is a right to appeal from a trial court order setting aside a judgment, usually pursuant to Fed. R. Civ. Proc. 59 or 60).
In our view, Brown focuses tire analysis on the wrong question by allowing consistency with federal caselaw to trump a Kansas statute. If an appellate court lacks authority to adopt a jurisdictional exception, the wisdom of that exception is inconsequential. We conclude the best path is to abandon Brown and adhere to our jurisprudence that limits appellate jurisdiction in civil cases to that provided by statute.
Finally, one clarification to our holding in Park City is required because that case dealt with a civil proceeding challenging a land annexation order. Its holding that the right to appeal is entirely statutory was based exclusively on civil cases that had adopted that same principle. See Park City, 293 Kan. at 111 (citing Flores Rentals v. Flores, 283 Kan. 476, 480-81, 153 P.3d 523 [2007]; Bruch v. Kansas Dept, of Revenue, 282 Kan. 764, 773-74, 148 P.3d 538 [2006]; Jones v. Continental Can Co., 260 Kan. 547, 550, 920 P.2d 939 [1996]; Little Balkans Foundation, Inc. v. Kansas Racing Comm’n, 247 Kan. 180, 188, 795 P.2d 368 [1990]; Tobin Constr. Co. v. Kemp, 239 Kan. 430,437,721 P.2d 278 [1986]). Accordingly, Park City’s application should be viewed as limited to appeals in civil cases.
We affirm the panel and dismiss Huddleston s appeal for lack of jurisdiction.
Stegall, J., not participating.
Amy L. Harth, District Judge, assigned. | [
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Granted.
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The opinion of the court was delivered by
Malone, J.:
The State appealed the district court’s imposition of a departure sentence from a Jessica’s Law life sentence under K.S.A. 21-4643(a). In a split decision, the Court of Appeals, concluding there were no substantial and compelling reasons for granting the defendant’s departure motion, reversed the district court and remanded the case for resentencing. State v. Jolly, No. 106,680, 2012 WL 5519179, at s7 (Kan. App. 2012) (unpublished opinion). We granted defendant’s petition for review. We reverse the Court of Appeals and affirm the district court.
On February 11, 2008, William Henry Jolly IV, a/k/a William Jolly, pleaded guilty to one count of rape of a child less than 14 years of age under K.S.A. 21-3502(a)(2) and (c). The sentencing judge found substantial and compelling reasons to grant Jolly’s departure request and sentenced him to 300 months’ imprisonment. Jolly appealed his sentence, arguing that the district court, in granting his departure request, failed to impose a sentence pursuant to the sentencing guidelines. We agreed and remanded the case for resentencing. See State v. Jolly, 291 Kan. 842, 847, 249 P.3d 421 (2011).
Following this court’s remand, the district court again granted Jolly’s request for a departure. He was sentenced to 165 months’ imprisonment rather than the mandatory minimum of 25 years to life pursuant to K.S.A. 21-4643(d), the statute known as Jessica’s Law. The State appealed, arguing the district court abused its discretion in concluding there were substantial and compelling reasons to depart. Jolly seeks review of the divided Court of Appeals opinion that concluded there were no substantial and compelling reasons for granting a departure. Jolly contends: (1) the Court of Appeals erroneously considered aggravating factors when considering die departure under K.S.A. 21-4643(d); and, (2) the Court of Appeals substituted its own findings for those made by the district court.
Factual and Procedural Background
On Sunday, July 15, 2007, 12-year-old C.E. came over to Jolly’s home to play with Jolly’s stepson. Jolly was 43 years old and had known C.E. and her family since C.E. was an infant. Jolly knew that C.E. had recently been sexually abused by her mother’s boyfriend.
At some point during the visit, Jolly laid down on a bed in the basement and C.E. joined him. According to Jolly, he was curious how desensitized C.E. was from the previous sexual assault. He began touching her “to see how far she would let me go and watch her for any reactions.” Jolly’s touching of C.E. progressed to rubbing her vaginal area, inserting his finger into her vagina, and ultimately penetrating her vagina wtth his penis. When he heard a noise upstairs, it brought Jolly “back to reality” and he jumped off the bed. They went upstairs, and C.E. went home.
C.E. returned to Jolly’s home tire next day, and the two of them tickled and rubbed each other. Jolly nibbled on her neck and breasts. C.E. then asked Jolly why he did. what he did to her the day before. Jolly told C.E. that what he did was wrong and it should never have happened.
A day later, C.E. told her grandmother, R.E., that Jolly had raped her while she was at his house. R.E. reported it to the Salina Police Department, and Jolly was interviewed by police the same day. In the interview and in a signed statement, Jolly admitted to both days’ incidents.
Jolly was charged with one count of rape of a child less than 14 years of age, in violation of K.S.A. 21-3502(a)(2) and (c) and two counts of aggravated indecent liberties with a child less than 14 years old, in violation of K.S.A. 21-3504(a)(3)(A) and (c). On February 11,2008, Jolly pleaded guilty to the rape charge and the State dismissed the other charges.
On October 21,2008, Jolly moved for a departure sentence. Jolly had obtained an evaluation from Dr. Robert W. Barnett, a clinical psychologist. At the departure and sentencing hearing on October 24,2008, Dr. Barnett testified that Jolly would be a good candidate for probation with relatively little or no danger to the community. Dr. Barnett was cross-examined about his opinion being based on Jolly’s reported version of events which differed from what he had told the police. Admitting Jolly’s inaccuracies lessened the seriousness of the offense, Dr. Barnett did not change his opinion.
The district court granted Jolly’s departure request from the mandatory sentence and imposed a sentence of 300 months’ imprisonment with lifetime postrelease supervision. The State did not appeal the granting of the departure motion, but Jolly did appeal his sentence. In Jolly, 291 Kan. at 847, this court reversed and remanded for resentencing finding that the district court, in granting the departure, failed to follow the statutory requirements in setting the amount of time of imprisonment.
On July 1, 2011, the resentencing hearing was held. Jolly again asked the court to grant his departure request. Jolly relied on the same evidence and arguments that were successful at the original sentencing; i.e., (1) he had no prior record, (2) Jolly’s admission and cooperation were meant to prevent any further harm or trauma to C.E., and (3) Dr. Barnett’s evaluation indicated that Jolly took responsibility for his actions and was not a risk to the community.
The State opposed the motion, arguing that the only mitigating factor the court could consider under K.S.A. 21-4643(d)(l) was Jolly’s lack of a criminal history. In addition, the State contended “the facts in this case would constitute aggravating circumstances here.” The State acknowledged Jolly’s plea avoided the need to have C.E. testify and then urged the court to deny the departure request. “[B]ut when you consider that isolated factor and the factor of his [lack of a] prior criminal histoiy and you weigh it with die egregious facts of this case, die State submits that clearly diere’s no substantial and compelling reasons to support a downward departure.” Finally, the State argued Dr. Barnett’s recommendations were based on Jolly’s version of events in which he denied having sexual intercourse with C.E.
Stating she had considered the arguments by Jolly and the State, the district judge found substantial and compelling reasons to depart. The judge based her decision on Jolly’s lack of any criminal history; his taking responsibility for the crime by pleading guilty and the resulting benefit to C.E. by sparing her “further humiliation or embarrassment”; and Dr. Barnett’s opinion that Jolly was at low risk to reoffend.
Then the judge imposed the aggravated sentence on the sentencing grid for a severity level 1 offense and a criminal histoiy score of I, 165 months’ imprisonment, followed by lifetime post-release supervision.
This time, the State appealed, claiming the factors relied on by the district court judge did not constitute substantial and compelling reasons to support a sentencing departure. In a divided Court of Appeals opinion, the majority reversed the sentence, reasoning that tire lack of criminal histoiy alone was not sufficient to support a downward departure sentence. Jolly, 2012 WL 5519179, at *4. The majority reasoned the district court erred in using an inaccurate and incomplete report as the basis for a departure sentence and in finding Jolly took responsibility for the rape. 2012 WL 5519179, at *5-7. Additionally, it found the aggravating factors of his being a 43-year-old, trusted family friend, with knowledge of C.E.’s prior sexual abuse, who decided to assume the role of a lover with her, outweighed his lack of criminal history. 2012 WL 5519179, at *7.
The concurring opinion joined with the majority but noted this court regularly considers aggravating circumstances in our caselaw or at least all the circumstances of the case. 2012 WL 5519179, at *9 (Buser, J., concurring). The concurrence opined that the district court did not understand “that the mitigating circumstances could be substantial and compelling only when weighed against the aggravating circumstances of this particular case.” 2012 WL 5519179, at *10 (Buser, J., concurring). Further, the concurring opinion stated that even if the district court applied the correct standard, there was an abuse of discretion where the mitigating circumstances were ephemeral when considered in context, especially Dr. Barnett’s report and Jolly’s acceptance of responsibility. 2012 WL 5519179, at *10 (Buser, J., concurring).
The dissenting opinion found tire majority improperly reweighed the evidence concerning the departure factors of Dr. Barnett’s report and Jolly’s taking responsibility for tire crime. 2012 WL 5519179, at *11-12 (McAnany, J., dissenting). Additionally, the dissent stated it was: (1) inappropriate for the majority to find that aggravating factors outweighed Jolly’s lack of a criminal record; (2) inappropriate for the appellate court to weigh aggravating factors against mitigating factors; and, if appropriate, a function of the district court; and (3) inappropriate to consider aggravating factors at all. The dissent questioned how the weighing of aggravated factors against mitigating factors ever became part of the caselaw because that balancing is not found in the Jessica’s Law statute. 2012 WL 5519179, at *12-14 (McAnany, J., dissenting).
Jolly petitioned this court for review, arguing the Court of Appeals majority substituted its own findings for those of the district court and asking for a resolution to the split of opinion between the majority, concurrence, and dissent. We granted review and ordered the parties to file supplemental briefs addressing whether it is appropriate for the district court to consider aggravating circumstances in considering a departure from a Jessica’s Law sentence, and if so, the method or manner in which those circumstances should be considered.
What Circumstances Are to Be Considered for a Jessica’s Law Departure?
Standard of Review
Analysis of what circumstances can be considered during a Jessica’s Law departure hearing involves die interpretation of K.S.A. 21-4643(d). Statutory interpretation is a question of law over which this court has unlimited review. State v. Holt, 298 Kan. 469, 474, 313 P.3d 826 (2013).
The Statute: Jessica’s Law, K.S.A. 21-4643
At the time of Jolly’s offense, Jessica’s Law, K.S.A. 21-4643, provided that the mandatory minimum term of imprisonment for a first time conviction of rape under K.S.A. 21-3502(a)(2) and (3) was 25 years’ imprisonment. As this was Jolly’s first offense, K.S.A. 21-4643(d) granted the district court the authority to impose a departure under certain circumstances:
“On or after July 1, 2006, for a first time conviction of an offense listed in paragraph (a)(1), tire sentencing judge shall impose the mandatory 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 tire sentencing judge departs from such mandatory minimum term of imprisonment, tire judge shall state on the record at tire time of sentencing the substantial and compelling reasons for tire departure. 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 hereunder. As used in this subsection, 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 tire influence of extreme mental or emotional disturbances.
“(3) The victim was an accomplice in the crime committed by another person, and tire 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 tire defendant’s conduct or to conform the defendant’s conduct to the requirements of law was substantially impaired.
“(6) The age of tire defendant at tire time of the crime.”
The Plain Language of K.S.A. 21-4643(d)
As now presented, Jolly essentially asks this court to adopt the reasoning of the dissent, i.e., the weighing of aggravating factors against mitigating factors is not found in the plain language of the statute and its use in our caselaw is erroneous. The State asks us to adopt the reasoning of the concurrence, i.e., our caselaw routinely considers aggravating circumstances and the court must be able to consider all the facts of the case, whether called aggravating circumstances or something else, in order to determine if there are substantial and compelling reasons to depart.
“The most fundamental rule of statutory construction is that tire intent of the legislature governs if that intent can be ascertained.” State v. Kendall, 300 Kan. 515, 520, 331 P.3d 763 (2014). “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.” State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
Jolly argues K.S.A. 21-4643(d) is plain and unambiguous, and the State does not assert otherwise. Indeed, the language of the statute is straightforward: “[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.” (Emphasis added.) K.S.A. 21-4643(d). The statute makes no provision for the weighing of aggravating circumstances against the mitigating circumstances to determine if a departure should be imposed. In this way, the statute is unique as other sentencing statutes consider both mitigating and aggravating factors. See K.S.A. 21-4716(c)(l) and (c)(2) (nonexclusive list of aggravating and mitigating factors to consider when considering departure from presumptive sentence under Kansas Sentencing Guidelines Act [KSGA]); see also sentencing for capital crimes K.S.A. 21-4624(c); K.S.A. 21-4625 (listing aggravating circumstances); K.S.A. 21-4626 (listing mitigating circumstances).
In State v. Spencer, 291 Kan. 796, 809, 248 P.3d 256 (2011), we discussed the differences in these sentencing statutes when com pared to K.S.A. 21-4643(d) and explained why a Jessica’s Law departure does not involve a balancing of mitigating and aggravating factors:
“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 necessary 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 but to a less-intense place.”
We are aware that both before and after our decision in Spencer, our cases have discussed the weighing of aggravating factors in Jessica’s Law cases. See, e.g., State v. Remmert, 298 Kan. 621, 630, 316 P.3d 154 (2014) (court considers mitigating circumstances and then weighs against any aggravating circumstances); State v. Seward, 289 Kan. 715, 722, 217 P.3d 443 (2009) (district judge reviewed mitigating and aggravating factors advanced, engaging in appropriate weighing of competing considerations). However, we now clarify that the plain language of K.S.A. 21-4643(d), which makes no reference to “aggravating circumstances” or aggravating factors, instructs the sentencing court to conduct a review of tire mitigating circumstances without balancing them against the aggravating ones.
Accordingly, we disapprove of any language in our caselaw that would indicate aggravating circumstances can be weighed against mitigating circumstances when considering a departure in a Jessica’s Law sentencing. See, e.g., Remmert, 298 Kan. at 630 (district court considers mitigating circumstances and then weighs against any aggravating circumstances); State v. Florentin, 297 Kan. 594, 598, 303 P.3d 263 (2013) (district court reviews mitigating circumstances and then weighs those circumstances against norm defined by legislature and any aggravating circumstances); State v. Salinas, 294 Kan. 743, 749, 280 P.3d 221 (2012) (even though there were mitigating factors to be weighed, there were significant offsetting aggravating factors); State v. Baptist, 294 Kan. 728, 734, 280 P.3d 210 (2012) (district court does not simply add together total number of mitigating circumstances and then contrast them with total number of aggravating circumstances); State v. Roberts, 293 Kan. 1093, 1098, 272 P.3d 24 (2012) (district court complied with its duty to review both mitigating and aggravating circumstances); Seward, 289 Kan. at 722 (district judge orally reviewed mitigating and aggravating factors advanced, engaging in appropriate weighing of competing considerations).
Departure Considerations
Even though the plain language of K.S.A. 21-4643(d) does not indicate the district court should weigh tire aggravating circumstances against the mitigating circumstances in considering a Jessica’s Law departure, the district court is not restricted to considering only the mitigating circumstances of the case. And, even though mitigating circumstances must be present for a finding of substantial and compelling reasons, mitigating circumstances do not necessarily equal substantial and compelling reasons. In State v. Ortega-Cadelan, 287 Kan. 157, 164, 194 P.3d 1195 (2008), we rejected an argument that each mitigating factor constituted a per se substantial and compelling reason for a departure sentence:
“Here, the statutory language regarding the consideration of mitigating circumstances is clear and unambiguous, stating the judge shall impose a life sentence 'unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.’ K.S.A. 2006 Supp. 214643(d). Contrary to [defendant’s] argument, this language does not make ‘mitigating circumstances’ synonymous with ‘substantial and compelling reasons.’ Rather, there is a two-step procedure: first, the judge reviews mitigating circumstances; second, the judge must determine if there are substantial and compelling reasons for a departure.”
In determining if substantial and compelling reasons for departure exist, “[tjhis court has defined ‘substantial’ as ‘something that is real, not imagined; something with substance and not ephemeral,’ while the term ‘ “compelling” implies that the court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary.’ ” (Emphasis added.) Seward, 289 Kan. at 722 (quoting State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 [2001]).
While K.S.A. 21-4643(d) does not allow a weighing of aggravating factors against mitigating factors, the facts of the case—including any egregious ones—are essential for a judge to consider in deciding if a departure is warranted based on substantial and com pelling reasons. Simply stated, a judge does not sentence in a vacuum. The sentencing judge is to consider information that reasonably might bear on the proper sentence for a particular defendant, given the crime committed, including the manner or way in which an offender carried out the crime. This includes those “circumstances inherent in the crime and the prescribed sentence.” See Florentin, 297 Kan. at 598. Provided the sentence imposed is within the statutory limits, “ ‘[i]t is the sentencing judge alone who determines the appropriate sentence to be imposed or other disposition of the case by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant’s background, the facts of the case, and the public safety.’ ” (Emphasis added.) State v. Frecks, 294 Kan. 738, 742, 280 P.3d 217 (2012) (quoting State v. Vanderveen, 259 Kan. 836, 842, 915 P.2d 57 [1996]).
In view of the above, the proper statutory method when considering a departure from a Jessica’s Law sentence is for the district court first to review the mitigating circumstances without any attempt to weigh them against any aggravating circumstances. Then, in considering the facts of the case, the court determines whether the mitigating circumstances rise to the level of substantial and compelling reasons to depart from the otherwise mandatoiy sentence. Finally, if substantial and compelling reasons are found for a departure to a sentence within the appropriate sentencing guidelines, the district court must state on the record those substantial and compelling reasons.
Application to Jolly
In light of our interpretation of K.S.A. 21-4643(d), neither the district court nor an appellate court should weigh aggravating factors against mitigating factors in a Jessica’s Law case. The district court should follow the steps outlined above, and the appellate court reviews the district court’s ruling on the departure decision under an abuse of discretion standard. See Florentin, 297 Kan. at 599. Although the Court of Appeals majority engaged in this inappropriate weighing of factors in this case, the district court applied the correct analysis. Accordingly, we next consider whether substantial and compelling reasons supported the district court’s imposition of a departure sentence.
Did the Court of Appeals Err in Reversing the District Court’s Finding That Substantial and Compelling Reasons Existed For Granting a Departure Sentence?
Standard of Review
“An abuse of discretion standard applies to an appellate court’s review of a district court’s determination of whether mitigating circumstances presented under K.S.A. 21-4643(d) are substantial and compelling reasons for a departure sentence.” State v. Ballard, 289 Kan. 1000, Syl. ¶ 8, 218 P.3d 432 (2009). “A district court abuses its discretion when: (1) no reasonable person would take the view adopted by tire judge; (2) a ruling is based on an error of law; or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based.” State v. Smith, 299 Kan. 962, 970, 327 P.3d 441 (2014).
“When a discretionary decision requires fact-based determinations, a district court abuses its discretion when the decision is based on factual determinations not supported by the evidence.” State v. Gonzalez, 290 Kan. 747, 757, 234 P.3d 1 (2010). Substantial competent evidence is that which “ possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. In other words, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.’ ” 290 Kan. at 757 (quoting Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 2, 136 P.3d 390 [2006], cert. denied 549 U.S. 1278 [2007]).
Analysis
At the resentencing hearing, the district court considered the same evidence that Jolly presented at the original sentencing and once again found substantial and compelling reasons to depart. Jolly was sentenced to 165 months’ imprisonment with lifetime postrelease supervision for his conviction of rape of a child less than 14 years of age. See K.S.A. 21-3502(a)(2) and (c). This time the State appealed, claiming the district court abused its discretion by finding substantial and compelling reasons to grant Jolly a departure. In a split decision, the Court of Appeals reversed and remanded to the district court for a third sentencing hearing. State v. Jolly, No. 106,680, 2012 WL 5519179, at *7 (Kan. App. 2012) (unpublished opinion). Jolly contends the Court of Appeals’ majority and concurrence improperly reweighed the evidence and substituted its own findings for those of the district court in reversing on appeal.
K.S.A. 21-4643(d) sets forth a nonexclusive list of mitigating circumstances for consideration in a Jessica’s Law departure. “If the sentencing judge departs from such mandatory minimum term of imprisonment, die judge shall state on the record at die time of sentencing the substantial and compelling reasons for the departure.” K.S.A. 21-4643(d). As discussed above, “[tjhis court has defined ‘substantial’ as ‘sometiiing that is real, not imagined; something with substance and not ephemeral,’ while the term “ ‘compelling” implies that the court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary.’ ” Seward, 289 Kan. at 722 (quoting State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 [2001]).
In granting Jolly’s departure request, the district court relied on one statutory factor, Jolly’s lack of criminal history; and two non-statutory factors, his taking responsibility for the crimes and Dr. Barnett’s psychological report. We review each in turn.
1. Lack of Criminal History
The first mitigating factor cited by die district court was Jolly’s lack of criminal history under K.S.A. 21-4643(d)(l):
“The Court has considered the arguments made by the defendant and the arguments made by the State, and the Court is going to find in this case that there are substantial and compelling reasons to grant a departure to a guideline sentence in this case. Those reasons are that tire defendant has—the first is, the defendant’s lack of criminal history. In looking at the defendant’s criminal history worksheet, apparently, he has been convicted of no criminal offenses in tire past, and tire Court does believe that is significant. And one of the reasons is the Court—that does lead the Court to believe that, at least—well, the defendant was 43 years old when the offenses were committed, and that would lead the Court to believe that the defendant has had the ability in the past, anyway, to control Iris actions, which would hopefully make it less likely for tire defendant to re-offend in the future since he has demonstrated some ability to control himself in tire past.”
On appeal, the Court of Appeals majority discounted the significance of his lack of criminal history:
“There is no evidence in the record on appeal that Jolly controlled his actions in the past, and there is certainly no evidence of what he will or will not do in the future. The evidence is only that he did not have a criminal history. We find that die lack of criminal history is a factor to be considered but it alone is not a substantial and compelling reason for a downward departure sentence, especially because of the facts of this case.” Jolly, 2012 WL 5519179, at *4.
The dissent commented the majority was asking Jolly to prove a negative, and no evidence established that Jolly had previously engaged in this course of conduct, with C.E. or any other child, prior to his conviction. 2012 WL 5519179, at *11 (McAnany, J., dissenting). Judge McAnany noted that “[t]he legislature specifically identified as a mitigating factor the fact that the defendant has no significant criminal history. See K.S.A. 21-4643(d)(l).” 2012 WL 5519179, at *11 (McAnany, J., dissenting).
Even though the majority minimized the importance of this statutorily expressed mitigator—Jolly’s lack of criminal history—both the majority and the dissent concluded Jolly’s lack of a criminal history was a mitigating factor to be considered. We agree.
While a single mitigating factor can be substantial and compelling enough to grant a departure from Jessica’s Law, State v. Rochelle, 297 Kan. 32, 47, 298 P.3d 293, cert. denied 134 S. Ct. 270 (2013), “mitigating circumstances” are not necessarily synonymous with “substantial and compelling reasons” under the statute. State v. Thomas, 288 Kan. 157, 163, 199 P.3d 1265 (2009). In this case, the district judge did not limit her analysis to Jolly’s lack of criminal history but considered other mitigating factors in determining if a departure was warranted. We elect to do the same.
2. Taking Responsibility for the Crime
A second nonstatutory mitigating factor relied on by the district court was that Jolly took responsibility for his crimes by pleading guilty to rape:
“[T]he defendant did take responsibility for his actions in this case. He did enter a plea. I can’t recall if it was guilty or no contest, but the defendant did accept responsibility for his actions, and the [victim] was not required to testify at trial and was not subject to, you know, further humiliation or embarrassment or further traumatized by that, by being required to testify at trial.”
On appeal, the majority acknowledged Jolly’s plea but discounted its significance because: (1) the plea agreement allowed him to avoid a trial; (2) Jolly later denied raping C.E. during his evaluation; (3) Jolly asked for leniency asserting he did nothing wrong; and (4) Jolly never apologized to C.E. 2012 WL 5519179, at *6-7. Consequently, it concluded the district court abused its discretion by finding that Jolly took responsibility for the rape.
The dissent disagreed, reasoning the district court heard and obviously rejected Jolly’s protestations of innocence. It observed the district court confined its analysis to the fact that Jolly pled guilty to the crime and spared his young victim from having to testily in a public trial. 2012 WL 5519179, at *12 (McAnany, J., dissenting).
We agree with Jolly’s assertion that the majority opinion exceeded its standard of review by reweighing the evidence before the district court. See State v. Reed, 300 Kan. 494, 499, 332 P.3d 172 (2014) (“An appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.”). Regardless of his motives, Jolly spared C.E. from having to testify by pleading guilty. In addition, Jolly’s plea of guilty was an admission that he committed the crime against C.E. See K.S.A. 22-3209(1) (“A plea of guiliy is admission of the truth of the charge and every material fact alleged therein.”). In other words, on the record and in the presence of the eventual sentencing judge, Jolly accepted responsibility for his actions. “[Acceptance of responsibility can be a mitigating factor in support of a departure” under tire KSGA. State v. Bird, 298 Kan. 393, 398, 312 P.3d 1265 (2013).
Substantial competent evidence supports the district court’s factual finding that Jolly took responsibility for his crime. We find no abuse of discretion in the district court relying on this factor as a mitigating circumstance.
3. Dr. Barnett’s Report
The final nonstatutory mitigating factor relied on by the district court was the opinions rendered by Dr. Barnett that Jolly was not a risk to the community. Dr. Barnett conducted a psychological evaluation of Jolly on June 30, 2008. Although Jolly had previously admitted to the rape in a police interview and signed a statement reflecting the same, he told Dr. Barnett that he only touched C.E.’s breasts and vagina but denied having intercourse with her. Jolly also told Barnett that he pled guilty to raping C.E.
Dr. Barnett testified at the first sentencing hearing. The discrepancies between Jolly’s version of events and what Jolly had previously admitted to were explored by the State on cross-examination, e.g., C.E. was 12 years old, not 13; and Jolly inserted his penis in her vagina, not just penetrated her with his fingers. Dr. Barnett opined that this information might have some impact on his recommendation but he did not want to speculate. The district court made the following findings regarding Dr. Barnett’s report:
“The Court has reviewed Dr. Barnett’s report and the Court does take into consideration the State’s statement that the defendant was not fully—was not completely truthful with him. But the court did note some other matters in Dr. Barnett’s report, and that was that the defendant had been employed for some time at the time of this offense. Dr. Barnett did not find any evidence of the defendant having any anti-social behaviors. The defendant did not have any previous history of being molested himself, which I think we all know can be significant because frequently those who have been sexually molested are more apt to re-offend. Dr. Barnett found that tire defendant did not have any history of mental illness and he did not diagnose him with any psychological disorder. The Court does believe that for those reasons the defendant would present less of a danger to society than an individual that did have a long history of mental illness or had anti-social behaviors. Dr. Barnett found that the defendant did not possess tire traits of a pedophile or of a sexual predator. So, for those reasons, the Court is going to find in this case that there are substantial and compelling reasons to grant die defendant the departure in this case to a guideline sentence.” (Emphasis added.)
On appeal, the majority found the court’s rebanee on this report was erroneous:
“Jolly’s description of the crime is totally false. In his testimony at the original sentencing, Dr. Barnett stated, ‘Mr. Jolly does not appear to have a history of sexual offending, of being accused or suspected of molesting adolescents or children.’ Dr. Barnett also testified, ‘It’s impossible for me to know in this case what impact it had on the victim. That’s really not my charge in this case.’ Dr. Barnett’s conclusions were based on Jolly’s description of his ‘crime,’ other information supplied by Jolly, and no consideration of what his crime did to C.E. Dr. Barnett never saw the police report. . . .
“Because Dr. Barnett did not have critical information, Dr. Barnett did not have ‘the full picture’ when he wrote his report. Dr. Barnett’s lack of information casts doubt on his entire evaluation. The resentencing court erred in using an inaccurate and incomplete report as the basis for the departure sentence. Dr. Barnett’s report does not satisfy the requirement of a substantial and compelling reason for the departure.” Jolly, 2012 WL 5519179, at “5.
Jolly again argues the majority exceeded its standard of review by reweighing the evidence concerning Dr. Barnett’s evaluation before the district court. We agree. As observed by the dissent, no objection was made to Dr. Barnett’s qualifications to testify as an expert, that he lacked a proper foundation for his opinion, or to his report being admitted into evidence. See Jolly, 2012 WL 5519179, at *11-12 (McAnany, J., dissenting). While Jolly clearly provided inaccurate or incomplete information to Dr. Barnett, the district court took those inaccuracies into account in weighing his testimony. By rejecting the district court’s conclusion regarding the weight and veracity to be given to Dr. Barnett’s testimony and report, the majority erroneously stood in the shoes of the sentencing judge and determined what it would have found. See State v. Coleman, 275 Kan. 796, 809, 69 P.3d 1097 (2003) (Court of Appeals improperly reweighed evidence and reached different conclusion than did trial court).
The district court focused on the portion of Dr. Barnett’s psychological report and testimony which showed that Jolly displayed no signs of mental disease or defect, that he had no history of alcohol or drug abuse, that he had long employment and a stable relationship with his wife, that he exhibited no signs of pedophilia or sexual predation, that he was unlikely to reoffend, and that he might be a good candidate for probation with psychotherapy and medication. It is clear from the record that the district court was fully aware of both tire inaccuracies in Dr. Barnett’s report and the facts of the case but found Dr. Barnett’s opinions credible. Substantial competent evidence thus supports the district court’s reliance on Dr. Barnett’s opinion that Jolly did not present a risk to the community. Accordingly, the district judge did not abuse her discretion by relying upon tins opinion as a mitigating factor.
4. Substantial and Compelling Reasons to Depart
As substantial competent evidence supports the mitigating circumstances relied on by the district court, we shift our review to whether the evidence constituted substantial and compelling reasons to depart under K.S.A. 21-4643(d). Unlike the Court of Appeals majority, tire district court did not weigh the aggravating factors against the mitigating factors. In properly following the Jessica’s Law statute, the district court first reviewed the mitigating circumstances of the case: Jolly’s age along with his absence of criminal record; his pleading guilty to the crime; and Dr. Barnett’s report and opinion, which was thoroughly cross-examined. With this factual backdrop, tire court determined the mitigating factors supported substantial and compelling reasons to depart. See State v. Florentin, 297 Kan. 594, 599, 303 P.3d 263 (2013) (“[Ejach mitigating circumstance [is not] required to sufficiently justify a departure by itself, so long as the collective circumstances constitute a substantial and compelling basis for departure.”).
The district court thus made no error in fact or law in its analysis. Essentially, the State’s contention is that due to the facts of this case no reasonable person would grant Jolly a departure. Although other reasonable persons may not have granted the departure, we find that a reasonable person could agree with the district judge’s determination that a departure was warranted. Cf. 297 Kan. at 602 (“Even though we might individually disagree with the district court judge’s decision, we cannot say that the district court judge is the only reasonable person who would deny Florentin’s motion for departure.”). We therefore conclude that the district court did not abuse its discretion when it granted Jolly’s departure motion under K.S.A. 21-4643(d).
The judgment of the Court of Appeals is reversed, and the judgment of the district court is affirmed.
Michael J. Malone, Senior Judge, assigned. | [
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Leben, J.:
The 2015 Kansas Legislature passed a bill, signed into law by Governor Sam Brownback, that outlawed the most common method of second-trimester abortions. Before the laws July 1 effective date, a state district court entered a temporary injunction that kept the law from taking effect.
The district court based its order on provisions of the Kansas Constitution Bill of Rights, concluding that they provide the same right to abortion as the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The State has appealed, contending that there is no abortion right under the Kansas Constitution.
But the Kansas Supreme Court has said for nearly a century that sections 1 and 2 of the Kansas Constitution Bill of Rights have “much the same effect” as the Due Process and Equal Protection Clauses of the United States Constitution. State v. Limon, 280 Kan. 275, 283, 122 P.3d 22 (2005); State ex rel. Stephan v. Parrish, 257 Kan. 294, Syl. ¶ 5, 891 P.2d 445 (1995); State ex rel. Tomasic v. Kansas City, Kansas Port Authority, 230 Kan. 404, 426, 636 P.2d 760 (1981); Manzanares v. Bell, 214 Kan. 589, 602, 522 P.2d 1291 (1974); Henry v. Bander, 213 Kan. 751, 752-53, 518 P.2d 362 (1974); Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, Syl. ¶ 1, 408 P.2d 877 (1965); State v. Wilson, 101 Kan. 789, 795-96, 168 Pac. 679 (1917). And a right to abortion has been recognized under the Due Process Clause of the Fourteenth Amendment to the United States Constitution for more than 40 years. Roe v. Wade, 410 U.S. 113, 153, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). We therefore conclude that sections 1 and 2 of the Kansas Constitution Bill of Rights provide the same protection for abortion rights as the Due Process Clause of the Fourteenth Amendment to the United States Constitution; the district court correctly determined that the Kansas Constitution Bill of Rights provides a right to abortion.
The State also argues that even if Kansas had such a right, the new Kansas statute would not unduly burden women seeking to exercise that right. But the United States Supreme Court held in Stenberg v. Carhart, 530 U.S. 914, 938, 945-46, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000), that a Nebraska statute that outlawed both the type of abortion at issue here and another less-common procedure unduly burdened abortion rights and was unconstitutional. Kansas already bans the less-common procedure, so the new law would put Kansas in the same position as Nebraska before its statute was found to be unconstitutional. Based on Stenberg, there is a substantial likelihood that the Kansas statute is unconstitutional, so the district court properly entered a temporary injunction.
Factual and Procedural Background
The legislature called the law at issue here the Kansas Unborn Child Protection from Dismemberment Abortion Act. With limited exceptions, the statute would ban what the medical profession calls a “dilation and evacuation” or “D & E” abortion, the primary method for second-trimester abortions in the United States. K.S.A. 2015 Supp. 65-6741 et seq.-, L. 2015, ch. 22. The plaintiffs, two board-certified obstetrician-gynecologists and their medical practice, seek to continue performing D & E abortions. The plaintiffs perform abortions only up to 21.6 weeks from the womans last menstrual period, which means that the fetus is not yet viable, i.e., able to survive outside the womb. See Alpha Med. Clinic v. Anderson, 280 Kan. 903, Syl. ¶ 4, 128 P.3d 364 (2006).
Because we are reviewing a law that seeks to ban an abortion method and because the State defends that law in part by arguing that alternative methods are available, we must describe and discuss abortion procedures. Faced with the same task, Justice Stephen G. Breyer provided tírese introductory comments, with which we agree:
“Considering the fact that [these] procedures seek to terminate a potential human life, our discussion may seem clinically cold or callous to some, perhaps horrifying to others. There is no alternative way, however, to acquaint die reader with die technical distinctions among different abortion methods and related factual matters, upon which the outcome of this case depends.” Stenberg, 530 U.S. at 923.
We will start by describing two abortion procedures—D & E and a variant called intact D & E, both described in the Supreme Courts Stenberg opinion. D & E is the most common method, used in about 95% of second-trimester abortions (about 10% of all abortions performed in the United States are done in the second trimester). In this procedure, the physician dilates the cervix and uses surgical instruments to remove the fetus by pulling it “through the cervix into the birth canal.” 530 U.S. at 925. Put bluntly, if the fetus is too large to fit through the cervix, friction against the cervix causes the fetus to tear apart. Performing this D & E procedure on a living, though nonviable, fetus (as commonly done) would be banned by the Kansas statute at issue here. K.S.A. 2015 Supp. 65-6742(b)(l); K.S.A. 2015 Supp. 65-6743(a); L. 2015, ch. 22, secs. 2-3.
Although D & E is quite safe for tire woman, it does carry some risks, like any medical procedure. For example, as the fetus tears, sharp bone fragments can cause accidental uterine perforations. In addition, tire more times an instrument passes into the uterus, the greater the risk of infections or perforations caused by the instrument. To reduce these risks, some doctors at one time preferred using the intact D & E procedure. In that method, the doctor pulls the fetus through the cervix intact by collapsing tire skull. Kansas has banned the intact D & E abortion procedure (also called a partial-birth abortion) since 1998. See K.S.A. 2014 Supp. 65-6721; L. 1998, ch. 142, sec. 18; L. 2011, ch. 91, sec. 30.
As part of its argument that the new Kansas statute does not violate any abortion right a woman might have, the State contends that the statute does not unduly burden that right—or make it too difficult to exercise—since alternative abortion methods would still be available. More specifically, the State has suggested three alternatives to the standard D & E procedure: labor-induction abortion, inducing fetal demise with digoxin injections, and inducing fetal demise by cutting the umbilical cord (also known as transection). A labor-induction abortion uses a combination of drugs that induce labor and delivery of the nonviable fetus. See Planned Parenthood of Southwest Ohio Region v. DeWine, 696 F.3d 490, 494-95 (6th Cir. 2012). The other options (inducing fetal demise by digoxin or transection) would add additional procedures onto the D & E abortion so that fetal demise occurs before the fetus is removed. If the fetus is no longer alive when the doctor proceeds with the D & E procedure, that would not violate the new Kansas statute, which forbids dismemberment only when it involves “a living unborn child.” K.S.A. 2015 Supp. 65-6742(b)(l); L. 2015, ch. 22, sec. 2.
This case has reached us after the entry of a temporary injunction, which often must be considered in a short time period. That was true here: the statute was signed by the Governor on April 7, 2015; the case was filed on June 1; and the district court had to consider whether to prevent the statute from taking effect on July 1. “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 68 L. Ed. 2d 175 (1981); see also Steffes v. City of Lawrence, 284 Kan. 380, 394, 160 P.3d 843 (2007). Accordingly, requests for temporary injunction are often considered based on written testimony submitted by the parties. See K.S.A. 60-902. Here, the plaintiffs submitted written testimony from three physicians: Dr. Traci Lynn Nauser, one of the plaintiffs and a board-certified obstetrician-gynecologist; Dr. Anne Davis, a board-certified obstetrician-gynecologist and an associate professor at the Columbia University Medical Center in New York City; and Dr. David Orentlicher, who has both a medical degree and a law degree and serves as both a professor of law at the Robert H. McKinney School of Law at Indiana University and an adjunct professor of medicine at the Indiana University School of Medicine.
The State did not submit any written testimony to the district court, and it did not seek to present any witnesses at the hearing held by the district court on the plaintiffs’ request for a temporary injunction. Instead, the State cited some articles from medical literature in its brief to the district court; the State cites some of those again on appeal.
It does not appear, however, that the State has properly challenged any of the district courts factual findings in this appeal. The State s appellate brief raises two legal issues but does not claim that the district courts factual findings are unsupported by substantial evidence. Although the States reply brief pur-ports to challenge some of the district courts factual findings (by citing medical literature referenced in its district court brief), new issues cannot be raised in a reply brief. See State v. McCullough, 293 Kan. 970, 984-85, 270 P.3d 1142 (2012).
Even if the State had properly challenged the district courts factual findings in this appeal, we would reject that challenge. “In cases in which a trial courts decision regarding an injunction is based on disputed facts, . . . we . . . look at whether the factual basis for its decision is supported by sufficient evidence.” State Bd. of Nursing v. Ruebke, 259 Kan. 599, 611, 913 P.2d 142 (1996). The district court’s factual findings are fully supported by the written testimony submitted by the plaintiffs, and those factual findings provide sufficient support to consider the plaintiffs’ legal claims. See University of Texas, 451 U.S. at 395.
We therefore accept these factual findings made by the district court for the purposes of our present review:
“Senate Bill 95 prohibits the performance on a living fetus of an abortion procedure described in the Act as ‘dismemberment abortion,’ defined as a procedure done:
with the purpose of causing the death of an unborn child, knowingly dismembering a living unborn child and extracting such unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors or similar instruments that, through the convergence of two rigid levers, slice, crash or grasp a portion of the unborn child’s body in order to cut or rip it off.
S.B. 95 § 2(b)(1) [since codified at K.S.A. 2015 Supp. 65-6742(b)(l)].
“Violation of the ban is a criminal offense.. . .
“Although ‘dismemberment abortion’ is not a medical term, the parties agree and the Court finds that the Act prohibits Dilation & Evacuation (‘D & E’) procedures. The D & E procedure is used for 95% of the abortions done in the second trimester.
“The plaintiffs in this case are Hodes & Nauser, M.D.s, PA- Dr. Herbert C. Hodes; and Dr. Traci Lynn Nauser, on behalf of themselves and their patients. The Plaintiff physicians are board-certified obstetrician-gynecologists who practice in Overland Park, Kansas. They provide pre-viability second-trimester abortions using D & E procedures. The Plaintiffs do not induce fetal demise prior to their D & E procedures.
“Defendants propose three alternative procedures to D & E: labor induction, induction of fetal demise using an injection, and induction of fetal demise using umbilical cord transection.
“Labor induction is used in approximately 2% of second-trimester abortion procedures. It requires an inpatient labor process in a hospital that will last between 5-6 hours up to 2-3 days, includes increased risks of infection when compared to D & E, and is medically contraindicated for some women.
“There is no established safety benefit to inducing demise prior to a D & E procedure.
“An injection of digoxin may be administered via either transabdominal or transvaginal injection. Injections to induce demise using digoxin prior to D & E are not practiced prior to 18 weeks gestation, and the impact of subsequent doses of digoxin, required in cases where a first dose is not effective, is virtually unstudied. Research studies have shown increased risks of nausea, vomiting, extramural delivery, and hospitalization.
“Umbilical cord transection prior to a D & E is not possible in every case. Requiring transection prior to a D & E increases procedure time, makes the procedure more complex, and increases risks of pain, infection, uterine perforation, and bleeding. The use of transection to induce fetal demise has only been discussed in a single retrospective study, the authors of which note that its main limitation is ‘a potential lack of generalizability.’”
For the purpose of considering whether the district court properly entered its temporary injunction, we will now proceed to analyze the legal issues based on tírese factual findings. We recognize that the district court may well make different factual findings after each side presents its full evidence at trial. Our analysis at this stage of the litigation is therefore necessarily tentative, as it is based on the tentative factual findings now in place.
Analysis
The parties agree that whether the Kansas Constitution recognizes any right to abortion is a purely legal question that we must answer to resolve this appeal. That question and two others guide our analysis.
The central issue we must decide is whether the Kansas Constitution provides any abortion rights. If not, then this new Kansas statute should be allowed to go into effect, as the plaintiffs have raised only Kansas constitutional rights as the basis for an injunction.
If the Kansas Constitution does provide some abortion rights, we must then answer two other questions. First, we would have to determine the standard we would apply to decide whether those rights have been violated. That also is a purely legal question. Next, we would apply that standard to the facts as found by the district court to determine whether this new statute would violate those rights. In doing so, we would also take into account the standards that apply when a plaintiff seeks injunctive relief (i.e., a court order commanding or preventing some action, here preventing the new law from taking effect).
To obtain an injunction—even a temporary one—-a plaintiff must make five showings to the court: (1) a substantial likelihood of eventually prevailing on the merits; (2) a reasonable probability that irreparable injury would take place without an injunction; (3) the lack of an adequate legal remedy (such as damages); (4) that the threat of injury outweighs whatever harm the injunction may cause tire opposing party; and (5) that the injunction will not be against the public interest. Downtown Bar and Grill v. State, 294 Kan. 188, 191, 273 P.3d 709 (2012). In this case, however, at least for the purposes of this appeal, the State has focused exclusively on the first of those required showings—substantial likelihood of success on the merits. The State does so by arguing that the Kansas Constitution does not provide the right to an abortion and that even if it did, and even if that right brings into play the same standards now applied under the United States Constitution, the new statute would not violate those standards and accordingly should still be allowed to take effect. We therefore focus on whether there is an abortion right under the Kansas Constitution and, if so, whether the new statute would violate that right.
We review the grant or denial of a temporary injunction only for an abuse of discretion. Downtown Bar and Grill, 294 Kan. at 191. Even though that is often a quite deferential review, a court abuses its discretion if it bases its ruling on a legal error. Kansas City Power & Light Co. v. Strong, 302 Kan. 712, 729, 356 P.3d 1064 (2015). And our review of legal issues must be independent, without any required deference to the district court. Downtown Bar and Grill, 294 Kan. at 191-92. Thus, our primary role in this appeal is to answer the purely legal questions we have identified concerning whedier the plaintiffs are likely to succeed on their claim that the statute violates the Kansas Constitution.
Under Established Kansas Supreme Court Caselaw, the Kansas Constitution Recognizes a Right to Abortion.
So we begin with whether the Kansas Constitution recognizes any right to abortion. On this question, we are guided primarily by two sources—the text of the sections of the Kansas Constitution cited by the plaintiffs and the caselaw of the Kansas Supreme Court interpreting those provisions.
The plaintiffs rely on sections 1 and 2 of tire Kansas Constitution Bill of Rights. Section 1 provides: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” Section 2 provides: “All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit.”
Of course, we are not the first to consider these provisions— the Kansas Supreme Court has done so on many occasions; it is the final arbiter when interpreting the Kansas Constitution, including determining whether a statute violates that constitution. Harris v. Shanahan, 192 Kan. 183, 206-07, 387 P.2d 771 (1963). And as we noted in the introduction to this opinion, the Kansas Supreme Court has said in seven different cases stretching from 1917 through 2005 that it gives tírese Kansas constitutional provisions “much the same effect” as the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Limon, 280 Kan. at 283; Parrish, 257 Kan. 294, Syl. ¶ 5; Kansas City, 230 Kan. at 426; Manzanares, 214 Kan. at 602; Henry, 213 Kan. at 752-53; TriState Hotel Co., 195 Kan. 748, Syl. ¶ 1; Wilson, 101 Kan. at 795-96. More recently, our Supreme Court noted that “at least for the past half-century, [it] has generally adopted the United States Supreme Court’s interpretation of corresponding federal constitutional provisions as the meaning of the Kansas Constitution, notwithstanding any textual, historical, or jurisprudential differences.” State v. Lawson, 296 Kan. 1084, 1091, 297 P.3d 1164 (2013).
The State argues that the words “due process” do not appear in sections 1 and 2 of the Kansas Constitution Bill of Rights, and that’s obviously true. Even so, not only has our Supreme Court interpreted sections 1 and 2 to provide a due-process right, but section 1 contains language—the right to “liberty”—that fits squarely within both the federal abortion-rights cases and the broader substantive-due-process caselaw within which the federal constitutional right to abortion has taken form.
Both the Fifth Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to the states) to the United States Constitution provide that no person shall be deprived “of life, liberty, or property, without due process of law.” These due-process provisions have long been interpreted not only to require that the government provide fair procedures when key rights are at stake but also to protect some key substantive rights from government interference—thus the term substantive due process.
In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), an abortion-rights case, the Court provided an overview of these substantive-due-process rights. It explained that the right to abortion was derived from the word “liberty,” just like the Court s other substantive-due-process caselaw:
“Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ The controlling word in the cases before us is iiberty.’ Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U.S. 623, 660-661 (1887), the Clause has been understood to contain a substantive component as well, one ‘barring certain government actions regardless of the fairness of the procedures used to implement them.’ Daniels v. Williams, 474 U.S. 327, 331 (1986). As Justice Brandéis (joined by Justice Holmes) observed, ‘[djespite arguments to tire contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by tire States.’ Whitney v. California, 274 U.S. 357, 373 (1927) (concurring opinion).” (Emphasis added.) Casey, 505 U.S. at 846-47.
In the first case the Court referred to, the 1887 case of Mu-gler v. Kansas, the Court considered whether Kansas statutes that made it a crime to manufacture intoxicating liquor violated a right to liberty that would allow a person to make liquor for his or her own use. The Court said there was a substantive limit to legislation that could be enacted for public health, morals, or safety: “It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the State. There are, of necessity, limits beyond which legislation cannot rightfully go.” 123 U.S. at 661. In Mugler, however, the State of Kansas had not gone beyond appropriate limits, as the Court noted the strong need to protect “the community against the evils which confessedly result from the excessive use of ardent spirits.” 123 U.S. at 662.
In the early twentieth centuiy, the United States Supreme Court found that a number of economic and social-welfare regulations unconstitutionally interfered with the protected interest in liberty. See 2 Rotunda & Nowak, Treatise on Constitutional Law: Substance and Procedure §§ 15.2-15.4 (5th ed. 2012); Barron & Dienes, Constitutional Law in a Nutshell, pp. 216-25 (8th ed. 2013). The most famous of these cases was Lochner v. New York, 198 U.S. 45, 53, 64, 25 S. Ct. 539, 49 L. Ed. 937 (1905), where the court invalidated a state law limiting bakery employees to no more than 10 hours of work per day and 60 hours per week, concluding that “[t]he right to purchase or to sell labor is part of the liberty protected” by the Fourteenth Amendment’s Due Process Clause.
Later, beginning with Nebbia v. New York, 291 U.S. 502, 538-39, 54 S. Ct. 505, 78 L. Ed. 940 (1934), which upheld New York’s minimum-price law for milk, the Court began a retreat from its close scrutiny of economic regulations. Today, unless equal-protection principles or fundamental rights are at stake, courts apply a much less rigorous test, approving state economic or social-welfare regulations so long as they are rationally related to a legitimate governmental interest. E.g., Williamson v. Lee Optical Co., 348 U.S. 483, 486-88, 75 S. Ct. 461, 99 L. Ed. 563 (1955) (upholding Oklahoma regulation of opticians where regulation might have been “a rational way to correct” a problem); Manzanares v. Bell, 214 Kan. 589, Syl. ¶¶ 7-8, 522 P.2d 1291 (1974) (stating that whether the Kansas no-fault insurance law “violates the due process clause is determined by whether its provisions bear a reasonable relation to a permissible legislative objective”; applying the Due Process Clauses in both United States and Kansas Constitutions); see State ex rel. Schneider v. Liggett, 223 Kan. 610, 613-15, 576 P.2d 221 (1978); Rotunda & Nowak at § 15.4(e); Barron & Dienes, pp. 221-25.
Although substantive due process is no longer used to overturn any reasonable economic regulation, it has become the basis for constitutional rights related to privacy, marriage, family, and procreation—none of which are specifically mentioned in the United States Constitution. The Court has recognized the right to the use of contraceptives in Griswold v. Connecticut, 381 U.S. 479, 481-85, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), the right to interracial marriage in Loving v. Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), the right to live with ones extended family, notwithstanding a city’s zoning laws in Moore v. East Cleveland, 431 U.S. 494, 503-06, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977) (plurality opinion), the right to refuse medical treatment in Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 278, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990), the right of a fit parent to raise his or her children without state interference in Troxel v. Granville, 530 U.S. 57, 65-66, 68-69, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (plurality opinion), and, most recently, the right of a same-sex couple to marry in Obergefell v. Hodges, 576 U.S. _, 135 S. Ct. 2584, 2604-05, 192 L. Ed. 2d 609 (2015).
And, of course, the Court first recognized a right to abortion in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). The Roe Court discussed two bases for its conclusion that a right to privacy protected certain decisions a woman would make in terminating a pregnancy, but it relied primarily on the liberty interest found in the Fourteenth Amendment:
“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” (Emphasis added.) 410 U.S. at 153.
Later cases have squarely tied the right to abortion to this liberty interest: The Casey opinion does so most clearly. In addition to the quotation we have already included in our opinion (“The controlling word in the cases before us is ‘liberty.’” 505 U.S. at 846), the Courts opinion squarely relied on a liberty interest under the Due Process Clause:
“It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. . ..
“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. . . . These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define ones own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” 505 U.S. at 847-51.
The State argues that none of this matters because “[n]o Kansas court has found that the Kansas Constitution includes a right of substantive due process . . . On that point, the State is simply wrong.
One year before the Lochner decision, in Brick Co. v. Perry, 69 Kan. 297, 76 Pac. 848 (1904), our Supreme Court struck down a Kansas statute making it unlawful to prevent employees from joining or belonging to a labor union. The court first noted that the defendant had claimed the law in question violated both the Fourteenth Amendment to the United States Constitution and section 1 of the Kansas Constitution Bill of Rights. 69 Kan. at 298-99. The court said there had been “an epidemic of this class of legislation” in the past two decades and that such laws had “been universally held to be a denial of rights guaranteed by the provisions of the national and state constitutions.” 69 Kan. at 301-02. The court said that the statute was unconstitutional, 69 Kan. at 305, because the employer was “at liberty to contract for the services of persons in any manner that is satisfactory to both” and that “[n]o legislative restrictions can be imposed on the lawful exercise of these rights.” 69 Kan. at 301.
Other Kansas Supreme Court decisions have also. measured Kansas statutes against the substantive-due-process standards found in sections 1 and 2 of the Kansas Constitution Bill of Rights.
In State v. Wilson, 101 Kan. 789, 168 Pac. 679 (1917), tire court upheld a statute limiting the use of trading stamps without payment of a license tax. The court specifically noted that it was applying sections 1 and 2 of the Kansas Constitution, which it said “are given much the same effect as the clauses of the fourteenth amendment relating to due process of law and equal protection.” 101 Kan. at 795-96. The court said that more than 50 court decisions had found trading-stamp laws invalid but that the United States Supreme Court had very recently upheld them in two cases. Relying upon the United States Supreme Courts interpretation of the Fourteenth Amendment, our court concluded: “We acquiesce in the view of the federal supreme court that there is sufficient room for a reasonable difference of opinion as to whether the ‘premium system’ [used in trading stamps] is attended with evil consequences to the public, to place the affirmative decision of that question by the legislature beyond the reach of the courts ...101 Kan. at 800.
More recently, in Manzanares, 214 Kan. 589, the court considered the constitutionality of the Kansas no-fault insurance law. The court noted that “the Kansas Constitution’s counterpart of the Fourteenth Amendment is Sections 1 and 2 of our Bill of Rights,” 214 Kan. at 610, and the court concluded that the provisions of the law did “not violate the due process clause of either the Fourteenth Amendment to the Constitution of the United States or Sections 1 and 2 of the Bill of Rights of the Kansas Constitution.” 214 Kan. 589, Syl. ¶ 8.
In sum, the Kansas Supreme Court has explicitly recognized a substantive-due-process right under the Kansas Constitution and has applied a substantive-due-process legal standard equivalent to die one applicable under the Fourteenth Amendment at the time of these Kansas decisions. See also Gilbert v. Mathews, 186 Kan. 672, 677, 686, 352 P.2d 58 (1960) (striking down a statute regulating the sale of new goods at public auction by itinerant sellers as a violation of the federal and state constitutions,'citing section 1 of the Kansas Constitution Bill of Rights and the Fourteenth Amendment as the governing authorities). What the Kansas Supreme Court has not yet done is apply substantive-due-process principles in a case involving personal or fundamental rights, like the right to contraception, die right to marry, or the right to abortion.
As far as we are aware, die court has only been asked to do so once—in Alpha Med. Clinic v. Anderson, 280 Kan. 903, 128 P.3d 364 (2006), a case in which the court had to balance abortion rights and privacy interests against governmental investigatory powers. The Alpha Med. Clinic court noted the federal constitutional right to obtain an abortion widiout the government imposing an undue burden on that right. 280 Kan. at 920. The court then responded to a party’s request that it also recognize the same right under the Kansas Constitution, declining to do so since it had already recognized tire federal right:
“We have not previously recognized—and need not recognize in this case despite petitioners’ invitation to do so—that such [abortion] rights also exist under the Kansas Constitution. But we customarily interpret its provisions to echo federal standards. [Citations omitted.]” 280 Kan. at 920.
The court’s final sentence—noting that it “customarily interpret[s]” Kansas constitutional provisions “to echo federal standards”—was unnecessary to the Alpha Med. Clinic decision and certainly is consistent with our understanding of its approach in substantive-due-process decisions from the early twentieth century to the present. But we do not recognize a right to abortion under the Kansas Constitution based on that hint from Alpha Med. Clinic. We do so because the Kansas Supreme Court has consistently interpreted sections 1 and 2 of the Kansas Constitution Bill of Rights as equivalent to the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Because the right to abortion is part of the liberty protected by the Due Process Clause to the Fourteenth Amendment, the Kansas Constitution provides the same right to abortion that is protected under federal law.
Before we conclude this section of the opinion, we should address one other argument the State has made against recognizing a right to abortion under sections 1 and 2 of the Kansas Constitution Bill of Rights—that the framers of the Kansas Constitution (who, we note, were all men) surely did not intend to create an abortion right in 1859, when the constitution was adopted. That may be true, but it has been recognized since before Kansas joined the Union that, as a matter of constitutional interpretation, the intent of the drafters with respect to broadly written rights is not the end of the matter. As Chief Justice John Marshall said, “[W]e must never forget, that it is a constitution we are expounding,” “a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” McCulloch v. State of Maryland, 17 U.S. (4 Wheat.) 316, 407, 415, 4 L. Ed. 579 (1819). So it has been in practice with the Due Process Clause, where new applications, unforeseen to die drafters, have arisen over time, like the right to contraception, the right to marry, and the right to abortion. So too with the prohibition on cruel and unusual punishment, where “evolving standards of decency” have been recognized under both the United States and Kansas Constitutions. See Graham v. Florida, 560 U.S. 48, 58, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); State v. DeCourcy, 224 Kan. 278, 283, 580 P.2d 86 (1978).
We could go on with other examples, but neither the United States Supreme Court nor the Kansas Supreme Court has limited its interpretation of broadly worded federal and state constitutional provisions only to what was initially intended. Just last year, the United States Supreme Court once again quite clearly embraced this notion of constitutional interpretation in its Ohergefell opinion, which determined that there was a right under the Due Process Clause to same-sex marriage:
“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know tire extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed.” 135 S. Ct. at 2598.
The Kansas Supreme Court has made much the same point:
• ‘We are aware of the fact that constitutions and their interpretation should march abreast of the times. Words must yield to the pressure of changed social conditions, more enlightened ideals, advanced business organizations and the general march of progress.” Markham v. Cornell, 136 Kan. 884, 891, 18 P.2d 158 (1933).
• “Until repealed or amended by the legislature, statutes stand immovable; constitutions march, aided by judicial interpretation necessarily employed to give full force and effect to the rights and privileges guaranteed by their general terms.” Postlethwaite v. Edson, 102 Kan. 619, 643, 171 Pac. 769 (1918).
See also Gannon v. State, 298 Kan. 1107, 1155-56, 319 P.3d 1196 (2014) (noting that courts are regularly called upon to define and apply imprecise constitutional standards and that the understanding of these general standards—such as “cruel and unusual” or “equal protection”'—may be refined over time).
From all of this, we discern a simple proposition: The rights of Kansas women in 2016 are not limited to those specifically intended by the men who drafted our states constitution in 1859.
We Apply the Undue-Burden Test Announced in Casey to Determine Whether the Kansas Constitutions Right to Abortion Has Been Violated.
We next determine what standard we should apply to decide whether this new Kansas statute violates the abortion right provided under the Kansas Constitution. Since we have concluded that Kansas would apply the same due-process standards that the United States Supreme Court applies under the Fourteenth Amendment, we must first determine what those federal standards are.
Three United States Supreme Court cases are central here: Casey; Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000); and Gonzales v. Carhart, 550 U.S. 124, 127 S. Ct. 1610, 167 L. Ed. 2d 480 (2007). In Casey, the Court announced an “undue burden” standard to apply in determining whether an abortion-rights restriction is constitutional. 505 U.S. at 876-78 (plurality opinion). While that portion of the Casey opinion was adopted by only three justices (with two others adopting a more stringent test), a majority of the Court applied the Casey undue-burden test in Stenberg, 530 U.S. at 921, and Gonzales, 550 U.S. at 146. In addition, our Supreme Court recognized this as the applicable test in Alpha Med. Clinic. 280 Kan. at 920 (recognizing “the fundamental right of a pregnant woman to obtain a lawful abortion without government imposition of an undue burden on that right”) (citing Casey). We therefore apply the undue-burden test here.
An undue-burden finding, as described in Casey, “is a shorthand for tire conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” 505 U.S. at 877. The plaintiffs in our case have primarily argued that the new Kansas statute is unconstitutional based on its effect. A statute that furthers a valid state interest but “has die effect of placing a substantial obstacle in the path of a womans choice cannot be considered a permissible means of serving its legitimate ends.” 505 U.S. at 877.
Under the District Court’s Factual Findings, the Plaintiffs Have Shown a Substantial Likelihood That the New Kansas Statute Violates the Kansas Constitution.
So far, we have determined that the Kansas Constitution does recognize an abortion right and that we should apply the undue-burden standard to determine whether that right has been violated. We must now determine whether the plaintiffs have made a sufficient showing that the statute would violate that standard to obtain a temporaiy injunction. To do so, the plaintiffs must demonstrate a substantial likelihood that they will ultimately prevail on this question. Downtoion Bar and Grill v. State, 294 Kan. 188, 191, 273 P.3d 709 (2012).
Given the district court’s factual findings and the procedural status in which the case has reached us (a request for temporaiy injunction), tire plaintiffs have made that showing. We reach this conclusion primarily based on the holdings of Stenberg and Gonzales.
In Stenberg, the Court found unconstitutional a Nebraska statute that the Court interpreted as banning both D & E and intact D & E abortions. 530 U.S. at 921-22, 938, 945-46. In Gonzales, the Court upheld a ban on only intact D & E abortions, finding that this limited ban did not constitute an undue burden and noting that D & E abortion, the most common type of second-trimester abortion and “’generally the safest method of abortion during the second trimester,”’ remained legal. 550 U.S. at 164 (quoting Carhart v. Ashcroft, 331 F. Supp. 2d 805, 1031 [D. Neb. 2004]).
Kansas has banned the intact D & E abortion procedure since 1998. See K.S.A. 2014 Supp. 65-6721; L. 1998, ch. 142, sec. 18; L. 2011, ch. 91, sec. 30. By combining that ban with a new one on the D & E abortion procedure, Kansas has simply attempted to do in two statutes what the United States Supreme Court held Nebraska could not do in one—ban both D & E and intact D & E abortions.
The State contends, based on Gonzales, that the new Kansas statute is permissible because reasonable alternative procedures remain available. But the circumstances here are quite unlike Gonzales. There, the Court considered a ban on an uncommon procedure and noted that the most common and generally safest abortion method remained available. Here, the State has done tire opposite, banning the most common, safest procedure and leaving only uncommon and often unstudied options available.
The State has offered three alternatives to the standard D & E procedure: labor-induced abortion, inducing fetal demise with digoxin injections, and inducing fetal demise by cutting the umbilical cord (also known as transection). The district court found that the State did not challenge the basic facts the plaintiffs submitted about these alternatives. In its reply brief on appeal, the State takes issue with this conclusion and states that it “cited numerous medical studies and journals to contradict Plaintiffs’ assertions.”
As we explained when we set out the district court’s factual findings, we must accept those findings for the purposes of our decision here. This case is before the court on a temporary injunction, and the only evidence the district court received was written testimony the plaintiffs submitted from three physicians. Accordingly, it is possible that the district court will make different factual findings after both sides present their evidence at trial. In the meantime, we must rule based on tire record as it exists. With that background, we will briefly review each of the alternative procedures the State argues are available in place of the standard D & E procedure.
First, the State does not dispute the plaintiffs’ contention that labor-induction abortion is used in only 2% of second-trimester abortions in the United States. While the State notes that labor induction is generally safe and is the preferred method in some other countries, it hasn’t disputed the plaintiffs’ assertions that it is not medically recommended for some women, that it includes an increased risk of infection, and that it requires a hospital stay of anywhere from 5 hours to 3 days. Of course, the woman also must go through labor.
Second, the State does not dispute that digoxin injections to induce fetal demise are only rarely used before 18 weeks gestation (while D & E abortions are often used beginning at 14 weeks). The State also does not dispute that the procedure sometimes requires multiple injections and that the effect of multiple injections hasn’t been studied. The State acknowledges that digoxin injections create a risk of extramural delivery (unplanned fetal expulsion when the woman is not at a medical facility). In addition, the district court found that digoxin use caused increased risks of nausea, vomiting, and hospitalization.
Third, the district court found that umbilical-cord transection wasn’t possible in all cases; that it increased the risk of pain, infection, uterine perforation, and bleeding; and that it increased the time required for the abortion. In response, the State cited one study that looked at umbilical-cord transection; while the study found that tire procedure was safe, its authors noted that the results couldn’t necessarily be generalized.
The State does not argue that these alternatives provide any safety benefit to the woman—the State simply argues that regardless of the additional risks, costs, and time that they impose, the alternatives are not an “undue burden.” The board-certified physicians who provided testimony to the district court have never routinely induced fetal demise before performing a D & E abortion. Given the additional risk, inconvenience, discomfort, and potential pain associated with these alternatives, some of which are virtually untested, we conclude that banning the standard D & E, a safe method used in about 95% of second-trimester abortions, is an undue burden on the right to abortion.
Kansas courts presume that a properly enacted statute is constitutional, and the party claiming otherwise must prove its case. Downtown Bar and Grill, 294 Kan. at 192; State ex rel. Schneider v. Liggett, 223 Kan. 610, 616, 576 P.2d 221 (1978). Based on the district court’s factual findings, along with Casey, Stenberg, and Gonzales, the plaintiffs have done so here. The district court properly found that tire plaintiffs had shown a substantial likelihood of prevailing on tire merits in this lawsuit.
As we noted previously, the State has not challenged in its appellate brief the district court’s conclusion that the plaintiffs had met the other requirements for a temporary injunction (irreparable harm, lack of adequate legal remedy, balance of harms in plaintiffs’ favor, and injunction not adverse to public interest). Accordingly, the district court properly entered a temporary injunction so that the law would not take effect pending the full presentation of evidence at trial and a final decision by the district court.
Conclusion
We conclude with four final observations about the resolution of this case in our court.
First, we are not called upon in this case to announce, or to act upon, our own personal views regarding abortion. As the United States Supreme Court said in Casey:
“Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992).
We have done our best to carry out that obligation to define the liberty of all—squarely based on tire precedents of the Kansas Supreme Court and the United States Supreme Court, which we are required to apply—and not to mandate our own moral code or religious beliefs.
Second, this is the first case in which a Kansas appellate court has been required to decide whether the Kansas Constitution provides a right to abortion. That’s because this is the first time a plaintiff has brought such a claim solely under the state constitution— even though the federal Constitution provides an abortion right. A plaintiff has the procedural right to choose the legal theories he or she will pursue; we cannot force the plaintiffs here to choose another legal avenue. See The Fair v. Kohler Die Co., 228 U.S. 22, 25, 33 S. Ct. 410, 57 L. Ed. 716 (1913) (Holmes, J.) ("Of course, the party who brings a suit is master to decide what law he will rely upon ... .”); Xpedior Cred. Trust v. Credit Suisse First Boston, 341 F. Supp. 2d 258, 268 (S.D.N.Y. 2004) (“The choice of legal theories is a strategic choice to be made by plaintiff, and neither the court nor the defendant is permitted to override that choice.”); Golden v. Den-Mat Corporation, 47 Kan. App. 2d 450, 463, 276 P.3d 773 (2012) (“A plaintiff may assert some available theories but not others. And the plaintiff may pick and choose at his or her discretion so long as the defendant has been fairly apprised of the circumstances.”).
Third, our court is equally divided, seven voting to affirm the district court and seven voting to reverse. When an appellate court is equally divided, the trial court’s ruling is affirmed. Paulsen v. U.S.D. No. 368, 239 Kan. 180, 182, 717 P.2d 1051 (1986); see Neil v. Biggers, 409 U.S. 188, 191-92, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
Fourth, although our court is equally divided, we believe we have still fulfilled our role in the Kansas justice system. An intermediate appellate court never has the final say; our ruling in this case will almost surely be reviewed at some point by tire Kansas Supreme Court. In its review, the Kansas Supreme Court will have the benefit of the independent and careful review that all of our judges have provided to the issues presented and the lessons to be learned from prior Kansas and federal cases. In the meantime, the parties must have a result, and we have provided that as well.
Pierron, McAnany, Buser, Standridge, and Arnold-Burger, JJ., join in the foregoing opinion.
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The opinion of the court was delivered by
Stegall, }.:
Tommy Ray James was pulled over for driving with a defective headlight. Smelling of alcohol, James stepped out of his vehicle to examine the headlight. He was able to produce his driver’s license to the officer but had no proof of insurance. After initially denying that he had been drinking, James admitted he had had a few. When Demi Scott, James’ passenger, stepped out of the vehicle, the officer was able to see an open container of alcohol behind the driver’s seat. James admitted it was in the vehicle, and he was then handcuffed and advised of his rights.
James told the officer the two cups in the cup holders contained alcohol that he and Scott had been drinking. While searching for additional alcohol containers, tire officer found a large plastic bag of what was later confirmed to be marijuana inside the glove box. During questioning on the scene, James denied the marijuana was his and suggested that it might belong to his brother. After being advised of her rights, Scott too disclaimed any ownership of the marijuana. At this point, James advised the officer that he did not know his brother’s phone number but that it was stored in his phone, which he indicated was in his hip pocket.
There is a video recording of this encounter showing James moving his hip towards the officer and the officer reaching into James’ hip pocket to retrieve the phone (while James is handcuffed) and asking at the same time, “Are there going to be any text messages on here related to drug sales?” To which James answered, “No, but I would tell you . . . but that’s but I’m saying I’m thinking that I had his number ... I may not.... Ain’t no text messages noth- [unintelligible] nothing about drags.” The officer repeated, “Nothing about drags?” James replied, “No sir.”
The officer then read through James’ text messages, finding messages from potential marijuana buyers asking James if he had any to sell. The officer went back to search tire car for drag paraphernalia and discovered a drug scale. James claimed that the scale was decorative only, something he hung from his rear view mirror, which he had removed when pulled over.
James was ultimately charged with possession of marijuana with intent to sell or distribute, unlawfully arranging sales or purchases of controlled substances using a communication facility, felony possession of drag paraphernalia, no tax stamp affixed, ignition interlock device violation, no proof of insurance, transporting an open container, and defective equipment. James moved to suppress much of the evidence against him, including the text messages discovered on his phone. Following an evidentiary hearing, the district court declined to suppress the text messages on the grounds that the search of the cell phone was a lawful search incident to arrest. Additionally, James lodged a number of evidentiary objections to the admission of the text messages. The district court again declined to exclude the cell phone evidence but did condition its admission on a limiting instruction that the evidence could only be used to show James’ knowledge of the marijuana and his intent to sell or distribute it.
James was convicted of possession of marijuana with the intent to distribute, possession with the intent to use drug paraphernalia, possession of marijuana without a tax stamp, transporting alcohol in an open container, and operating a motor vehicle with defective equipment. Appealing to the Court of Appeals, James claimed: (1) The warrantless search of his cell phone violated the Fourth Amendment to the United States Constitution; (2) the district court erred by admitting the text messages at trial; (3) the district court erred in permitting the officer to give opinion testimony about the meaning of the text messages; (4) prosecutorial misconduct; (5) sufficiency of the evidence; and (6) cumulative error. A panel of the Court of Appeals found no error and affirmed James’ convictions. State v. James, 48 Kan. App. 2d 310, 311, 288 P.3d 504 (2012).
In particular, the panel noted that “neither the United States Supreme Court nor the Kansas Supreme Court has directly addressed” whether a cell phone search, such as occurred in this case, can be conducted as a valid search incident to arrest. James, 48 Kan. App. 2d at 318. The panel observed that the United States Supreme Court held in United States v. Robinson, 414 U.S. 218, 236, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973), that a warrantless search of a crumpled cigarette package found in an arrestee’s pocket is a permissible search incident to arrest. James, 48 Kan. App. 2d at 318-19. The panel tiren considered the burgeoning split of authority from courts in other jurisdictions to have considered whether the rule in Robinson should extend to warrantless cell phone searches incident to arrest, including an unpublished Tenth Circuit decision that “ The permissible scope of a search incident to arrest includes the contents of a cell phone found on the arres-tee’s person.’ ” 48 Kan. App. 2d at 320-21 (quoting Silvan W. v. Rriggs, 309 Fed. Appx. 216, 225 [10th Cir. 2009]). Finally, the panel concluded that Robinson should apply and that “as part of a search incident to arrest, it is reasonable for a law enforcement officer to view the text messages contained in a cell phone found on an arrestee’s person for evidence probative of criminal conduct.” James, 48 Kan. App. 2d at 322.
This court granted James’ petition for review reprising all of the arguments he made at the Court of Appeals. We exercise jurisdiction pursuant to K.S.A. 60-2101(b). Because we hold, as discussed below, that the lower court erred in not suppressing the text messages and that this error requires reversal, we need not discuss, and do not reach, any of James’ other claims of error.
Discussion
Following the panel’s decision on James’ appeal, the United States Supreme Court ruled that a valid search incident to arrest does not extend to a search of a cell phone found on the arrestee’s person. Riley v. California, 573 U.S. -, 134 S. Ct. 2473, 2485, 189 L. Ed. 2d 430 (2014). Riley decided.two consolidated cases— one involving a smart phone and the other a less technologically sophisticated “flip” phone—both involving a warrantless search of a cell phone following arrest. The Riley Court declined to extend the Robinson rationale to the world of digital information, stating that “while Robinsons categorical rule strikes the appropriate balance in tire context of physical objects, neither of its rationales has much force with respect to digital content on cell phones.” 134 S. Ct. at 2484. Riley held that the risks to officer safety and of evidence destruction are significandy lessened in the context of “digital data” and that die privacy interests at stake are significandy heightened because digital data storage devices such as cell phones “place vast quantities of personal information literally in the hands of individuals.” 134 S. Ct. at 2484-85. Because a search for digital data on a cell phone “bears litde resemblance to the type of brief physical search considered in Robinson,” the Court declined “to extend Robinson to searches of data on cell phones” and instead ruled that “officers must generally secure a warrant before conducting such a search.” 134 S. Ct. at 2485.
“[Njewly announced rules of constitutional criminal procedure must apply ‘retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception.’ ” Davis v. United States, 564 U.S. 229, 243, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011). Riley was decided while this case was pending on appeal. As such, Riley controls the constitutional issue in this case. Before resolving this case on constitutional grounds, however, it is incumbent upon us, in light of our recent decision in State v. Julian, 300 Kan. 690, 333 P.3d 172 (2014), to first decide whether James’ claims must be decided as a matter of statutory, rather than constitutional, law. And Julian is only the latest in a line of cases from this court discussing die interplay between the statutory scope and the constitutional scope of permissible searches incident to arrest. Because we here undertake the task of providing needed clarity to this area of the law, and in the process overrule Julian, a detailed review of caselaw development is necessaiy.
The statutorily prescribed scope of searches incident to arrest in Kansas
The proper interpretation and construction of a statute is a question of law over which we exercise plenary review. State v. Brown, 298 Kan. 1040, 1057, 318 P.3d 1005 (2014). The fundamental rule of statutory interpretation is that the intent of the legislature is dispositive if it is possible to ascertain that intent. State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 (2014). The language of a statute is our primary consideration in ascertaining the intent of the legislature. 299 Kan. at 906. Where such language is plain and unambiguous, it is typically determinative of legislative intent. State v. O’Connor, 299 Kan. 819, 822, 326 P.3d 1064 (2014). We must, however, construe statutes to avoid unreasonable or absurd results. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013).
In 1970, Kansas codified the scope of a lawful warrantless search incident to arrest at K.S.A. 1970 Supp. 22-2501:
“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 the crime.” L. 1970, ch. 129, sec. 22-2501.
At that time, K.S.A. 1970 Supp. 22-2501 was coextensive with the scope of constitutionally permissible warrantless searches incident to arrest as described in Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). See State v. Youngblood, 220 Kan. 782, 784, 556 P.2d 195 (1976) (“[K.S.A. 22-2501 (Weeks)] setting forth the permissible scope of a search without a search warrant in Kansas, when made incidental to a lawful arrest, is patterned after . . . Chimel.”).
But in 1981, the United States Supreme Court expanded the scope of permissible warrantless searches incident to arrest in New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768, reh. denied 453 U.S. 950 (1981). Belton permitted a search incident to arrest to extend beyond the person arrested to the passenger compartment of the vehicle the person had occupied immediately prior to the arrest. 453 U.S. at 460. This development in constitutional interpretation gave rise to the potential of two different standards applicable in Kansas.
This court confronted that divide in State v. Anderson, 259 Kan. 16, 910 P.2d 180 (1996). The Anderson court declined to construe tire intent of K.S.A. 22-2501 (Furse) as merely to codify and follow the constitutional law applicable to searches incident to arrest. Anderson rejected the claim that Belton “somehow altered the requirements of K.S.A. 22-2501, or should be considered supplemental thereto, and that Belton legitimizes the search herein, which was not in accordance with the statute.” 259 Kan. at 21. Anderson held that while Belton may have expanded the scope of a constitutionally permissible warrantless search incident to arrest, it could not change the language adopted by the Kansas Legislature. “[T]he language employed in the statute controls” even if that language is “more restrictive than prevailing case law on the Fourth Amendment would permit.” 259 Kan. at 22-23.
Since Anderson was decided, this court has repeatedly ruled that K.S.A. 22-2501 governs searches incident to arrest and sets forth the “permissible circumstances, purposes, and scope” of such searches. State v. Pettay, 299 Kan. 763, Syl. ¶ 4, 326 P.3d 1039 (2014); State v. Carlton, 297 Kan. 642, Syl. ¶ 4, 304 P.3d 323 (2013); State v. Dennis, 297 Kan. 229, Syl. ¶ 5, 300 P.3d 81 (2013); State v. Conn, 278 Kan. 387, 391, 99 P.3d 1108 (2004). While correct, this recitation of the interplay between K.S.A. 22-2501 and the Fourth Amendment is incomplete. The existence of a statute defining the scope of permissible circumstances and purposes of a search incident to arrest does not simply render the Fourth Amendment irrelevant to determining the lawfulness of warrant-less searches incident to arrest. In fact, the Fourth Amendment may—depending upon the facts of any individual case—be not only relevant law, but governing law.
A more precise and complete articulation of the Anderson rule is that if and when a statute affords citizens of Kansas greater privacy protections against searches and seizures than tire Fourth Amendment, then the statute governs. In other words, courts should only apply a statutory standard to determine whether a search or seizure is lawful when the facts implicate a statutory provision that imposes greater restrictions on the government than does the Fourth Amendment. Any violation of a more restrictive standard created by statute would likewise be subject to a statutory harmlessness analysis. In areas where the statutory standard is either silent or is identical to the constitutional standard, however, it is proper for courts to decide such questions as a matter of constitutional law and to review violations using a constitutional harmlessness standard. Statutory silence, in particular, creates a void which must be filled by the constitutional standard.
In 2006, the legislature adopted a one word amendment to K.S.A. 22-2501. The previous language of subsection (c) reading “[discovering tire fruits, instrumentalities, or evidence of the crime” was changed to read “of a crime”—the italicized words representing the only change. (Emphasis added.) L. 2006, ch. 211, sec. 8. This court has previously discussed the legislative history of this change at some length, concluding that the change “may have been, at least in part, responsive to our holding ... in Anderson.” State v. Henning, 289 Kan. 136, 142-44, 209 P.3d 711 (2009). In 2005, the legislature had attempted, unsuccessfully, to abolish K.S.A. 22-2501 (Furse) altogether. A representative of the Kansas Attorney General’s office testified in favor of repeal,- claiming the codification of constitutional rights was bad policy as it “ ‘only [bred] conflict with prevailing case law.’ ” 289 Kan. at 143. Prior to adopting die 2006 amendment, the legislature heard testimony from a representative of the Kansas Bureau of Investigation who stated that the Anderson court’s interpretation of K.S.A. 22-2501 (Furse) had limited law enforcement’s ability to search and caused confusion and that the amendment was needed to realign Kansas statutory law with the constitutionally permissible scope of war-rantless searches incident to arrest as set forth by the United States Supreme Court in Belton. Henning, 289 Kan. at 142.
Then, in 2009, the United States Supreme Court again modified the constitutionally permissible scope of warrantless searches incident to arrest under the Fourth Amendment. See Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). Gant limited the application of Belton and held that warrantless vehicle searches incident to arrest are unlawful unless “the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” (Emphasis added.) 556 U.S. at 351.
Two months later, in Henning, this court was confronted with the question of whether the Gant decision once again rendered K.S.A. 22-2501 out of step with developments in Fourth Amendment jurisprudence. Clearly, it did. Only this time—by virtue of permitting a warrantless search incident to arrest for evidence of any crime—the Kansas statute as written was more expansive in scope than the Fourth Amendment, putting it on the wrong side of the constitutional limits as articulated in Gant. This is just what the Henning court found, stating: “To have a valid search incident to arrest, when there is no purpose to protect law enforcement present, the search must seek evidence to support the crime of arrest, not some other crime, be it actual, suspected, or imagined.” 289 Kan. at 147. As such, Henning held that “[i]n view of Gant, we are compelled to strike down the current version of K.S.A. 22-2501(c) as facially unconstitutional under the Fourth Amendment.” 289 Kan. at 148-49.
By striking subsection (c) in its entirety, the Henning court not only brought K.S.A. 22-2501 into conformity with Gant, it also eliminated the statutory basis for a search incident to arrest for evidence of the crime of arrest. Following Henning, law enforcement was once again left to guess whether warrantless searches incident to arrest for evidence of the crime of arrest were lawful pursuant to the constitutional standards announced in Gant or were unlawful pursuant to a more restrictive statutory scheme. The legislature finally put the problem of dueling standards to rest when it repealed K.S.A. 22-2501 in its entirety in 2011. L. 2011, ch. 100, sec. 22. Still, for the period between June 26, 2009, when Henning was published, and July 1, 2011, when K.S.A. 22-2501 was taken off of the books, the question remained.
It was this question that we took up last year in Julian. In Julian, the lower courts had relied on Gant to uphold a warrantless search incident to arrest for evidence of the crime of arrest. We reversed, holding that “by relying on Fourth Amendment caselaw rather than the Kansas statute governing searches incident to arrest, the district court and the Court of Appeals applied the incorrect legal standard to this case. In doing so, the Court of Appeals reached an incorrect result.” 300 Kan. at 691. We noted that when “dealing with an issue involving a search incident to arrest ‘we need not discuss federal law further,’ as federal caselaw applying the Fourth Amendment did not control such searches.” 300 Kan. at 695 (quoting Anderson, 259 Kan. at 22).
The Julian court then reasoned that when Henning struck down subsection (c), the only valid statutory reasons for a search incident to arrest were to protect tire officer from attacks and to prevent the person from escaping—the reasons articulated in the remaining subsections (a) and (b) of K.S.A. 22-2501. Recapitulating in some fashion its argument in Anderson, the State claimed Gant was controlling and, in the wake of Henning striking down subsection (c) concerning searches for evidence, Gant and Fourth Amendment caselaw should fill the resulting void and govern such searches.
Julian rejected the State’s reliance on Gant, reasoning “K.S.A. 22-2501, and not Fourth Amendment caselaw, controlled the ‘permissible circumstances, purposes, and scope’ of the search.” 300 Kan. at 701 (quoting Conn, 278 Kan. at 391). The holding of Julian announced that K.S.A. 22-2501 “represented the State’s authority to adopt measures more protective of an individual’s rights than the Fourth Amendment to the United States Constitution requires” and that the statute “did not authorize searches for the purpose of discovering evidence.” 300 Kan. at 690, Syl. ¶¶ 2, 4. If we were to follow Julian in this case, we would find that because the search of James’ cell phone was a search incident to arrest for evidence of the crime of arrest, and because the search occurred in December of 2009, it was not statutorily authorized and thus illegal. Julian gives the impression that the Kansas Legislature simply chose not to authorize warrantless searches incident to arrest for the purpose of discovering evidence of the crime of arrest. But the opposite is true. The legislature, in fact, intended to authorize searches incident to arrest for evidence of the crime, among others. It merely went too far.
Here, as in Julian, there is a clear alternative basis on which to rule—the Fourth Amendment itself. By looking to the constitutional baseline to fill in a statutory silence, we can harmonize and give effect both to the constitutional limits on searches incident to arrest and to the permissible legislative intent behind K.S.A. 22-2501. Where a statute such as K.S.A. 22-2501 imposes greater restrictions on state action than are prescribed in the Constitution, the statute controls. Where such statutes are silent, however, either through legislative will or, as here, by virtue of subsequent judicial review, the constitutional standard governs the proper scope of permissible state action. To the extent the holding of Julian conflicts with this rubric, it is overruled.
Because the search of James’ cell phone—as a search incident to arrest for evidence of the crime of arrest—was not expressly prohibited by the post-Henning statutory scheme, we now turn to a Fourth Amendment analysis of its legality.
The search of James’ cell phone violated the Fourth Amendment.
When the material facts are not in dispute, as here, we will exercise plenary review of the district court’s ruling on a motion to suppress evidence. The State bears the burden to demonstrate a warrantless search was lawful. Pettay, 299 Kan. at 768.
The Fourth Amendment to the United States Constitution protects everyone’s right to be secure in his or her person and not subject to unreasonable searches by the government. Without a warrant, a search is unreasonable unless it falls within a recognized exception. State v. Canaan, 265 Kan. 835, 840, 964 P.2d 681 (1998) (citing Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 [1967]). Both consent and a search incident to a lawful arrest are recognized exceptions in Kansas. State v. Mendez, 275 Kan. 412, 421, 66 P.3d 811 (2003), overruled in part on other grounds by State v. Neighbors, 299 Kan. 234, 246-49, 328 P.3d 1081 (2014).
The United States Supreme Court ruled last year that a valid search incident to arrest does not extend to a search of a cell phone found on the arrestee’s person. Riley, 134 S. Ct. at 2485. The State concedes that Riley forecloses the possibility that the search of James’ cell phone was a valid search incident to arrest. Moreover, the State does not argue, and thus waives, any claim James’ text messages are nevertheless admissible under the good-faith exception to the exclusionary rule. See Neighbors, 299 Kan. at 254-55; State v. Hicks, 282 Kan. 599, 617-18, 147 P.3d 1076 (2006). The State does, however, maintain that James consented to the search.
A valid consent requires two things: (1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given and (2) the absence of duress or coercion, express or implied. State v. Thompson, 284 Kan. 763, 776, 166 P.3d 1015 (2007). “Voluntariness presents an issue of fact which is reviewed on appeal for substantial competent evidence. [Citation omitted.] The State bears the burden of establishing voluntariness.” State v. Richard, 300 Kan. 715, 729, 333 P.3d 179 (2014).
The district court specifically found James did consent to a search of his cell phone for the limited purpose of finding James’ brother’s phone number. The entire encounter between James and the officers was video recorded, and that recording is a part of the record on appeal. At tire time of the search, James had been arrested, read his Miranda rights, and was handcuffed and flanked by two armed officers. When asked by the officers where his cell phone was, James offered his right hip pocket to the officer who removed the phone, ostensibly for the purpose of finding James’ brother’s phone number. The State maintains that James’ hip movement indicating the location of the cell phone, along with his statement that his brother’s phone number might be contained in the phone’s memory, amounted to a voluntary consent to the officer’s search of the cell phone’s text messages. We do not agree.
In State v. Spagnola, 295 Kan. 1098, 289 P.3d 68 (2012), the defendant had been pulled over during a traffic stop. After being asked to exit the car, the officer asked if he could search Spagnola’s pockets. Spagnola said yes. The officer asked him to turn around and interlace his hands behind his back. The officer again asked to search his pockets, and again, Spagnola acquiesced. The officer then found the drugs Spagnola had been carrying.
When determining tire validity of Spagnola’s consent, we noted the appropriate inquiiy is “whether a reasonable person would feel free to decline the officer’s requests or otherwise terminate the encounter.” 295 Kan. at 1107. In examining the surrounding circumstances to determine if the consent was coerced, “ ‘account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.’ ” 295 Kan. at 1108 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 229, 93 S. Ct. 2041, 36 L. Ed. 2d 854 [1973]). Nonexclusive factors to determine whether a citizen’s encounter with police is voluntary include “the display of a weapon, physical contact by the police 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.” Spagnola, 295 Kan. at 1108. Applying these principles, we found that Spagnola was not in a “posture or an environment in which it can be said that consent was voluntarily given free from coercion.” 295 Kan. at 1108.
The circumstances surrounding James’ acquiescence to law enforcement demands are even more coercive than those we considered in Spagnola. James did not unequivocally, specifically, and freely give consent for the officer to search the text messages on his cell phone, and his consensual responses were not free from duress or coercion. James did not provide legally effective consent for the officer’s search.
The unlawful search of James’ cell phone was not harmless.
Having found that the text messages on James’ cell phone should have been suppressed before trial, we must next consider whether that error was harmless. The State argues the admission of the text messages was harmless, applying the statutory standard found at K.S.A. 2014 Supp. 60-261. But, as we have already discussed, this case turns on the application of the Fourth Amendment, not on K.S.A. 22-2501. A constitutional error may only be declared harmless when the party benefitting from the error proves beyond a reasonable doubt that the error did not affect the outcome of the trial in light of tire entire record. State v. Swindler, 296 Kan. 670, 684, 294 P.3d 308 (2013), cert. denied 134 S. Ct. 1000 (2014).
In its attempt to meet this high burden, the State points to overwhelming evidence of the presence of a large amount of marijuana in the car James both owned and was driving at tire time. Additionally, James admitted to owning the scale suitable for weighing marijuana found in the car. But James initially denied knowledge or ownership of the marijuana and said it may have belonged to his brother. At trial, James again denied knowledge or ownership of the marijuana, and another witness testified that he, not James, had put tire marijuana in the car.
The text messages served a key evidentiary function to link James directly to the illicit drugs. The cell phone evidence was used by the State to demonstrate that James had knowledge of, and intent to control, the marijuana when another passenger was in the car and a third person claimed ownership of the marijuana at trial. In fact, the text messages were the subject of extensive pretrial litigation and a limiting instruction was given at trial that the text messages were being admitted solely to demonstrate James’ knowledge and intent.
The State knew how important the text messages were to its case. In closing, the prosecutor talked about the text messages at length, including:
“Common sense, ladies and gentleman. He didn’t know the marijuana was in his vehicle? Yet those messages are on his phone? One of the messages specifically names him. . . . And knowing that at that same time this defendant has this marijuana in his vehicle, what else could those text messages be but orders for drugs? Common sense.
“. . . He’s being charged with possession of it with the intent to. Those text messages show his knowledge and it shows his intent, the fact that he has those messages on his phone, one which names him specifically the day before he’s caught with a half pound of marijuana in his car. Those messages show exactly what his intent and his knowledge was. He knew that he was possessing that marijuana, and he intended to sell it.”
And the prosecutor stated again on rebuttal:
“It’s even more unlucky that he let somebody borrow his phone. Didn’t tell us who, but somebody borrowed his phone and somebody received text messages on his behalf drat were related to drugs. Not just one, now that’s unlucky, but two. Boy, drat’s winning the bad luck lottery. Not just having two text messages, but one that specifically names him specifically, T-Ray. What’s his excuse for that? Think about it.”
Under these circumstances, in light of the entire record, the text messages were critical evidence used by the State to both undermine James’ credibility and to demonstrate his knowledge and intent with respect to the drugs. The State has not met its burden to show beyond a reasonable doubt that the cell phone evidence did not affect the outcome of the trial. The violation of James’ Fourth Amendment rights was not harmless in this instance and requires a reversal of his convictions. Given this conclusion, James’ remaining arguments are moot and we need not consider them.
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. | [
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The opinion of the court was delivered by
Biles, J.:
An appellate court exercises unlimited review over jurisdictional issues and has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, the appellate court must dismiss the appeal. In re T.S.W., 294 Kan. 423, 432, 276 P.3d 133 (2012). This is one of tiróse instances.
We hold that the district court did not enter a final appealable order as required by K.S.A. 2013 Supp. 60-2102(a)(4) before this appeal was initiated. Therefore, the Court of Appeals lacked jurisdiction when it affirmed the district court. See Kaelter v. Sokol, No. 107,401, 2013 WL 1876444, at *8 (Kan. App. 2013) (unpublished opinion). For that same reason, the Court of Appeals lacked jurisdiction to enter an attorney fees award. The judgment of the Court of Appeals is vacated, and the appeal dismissed.
Factual and Procedural Background
This case began in early 2007 when Janet Kaelter sued her longtime boyfriend, Steven Sokol, seeking determinations of paternity, custody, and support; and an equitable division of the parties’ jointly acquired assets. The parties have hotly contested these issues and others at every turn.
After Kaelter filed suit, the district court referred tire matter to a special master, who made findings of fact and conclusions of law without conducting formal hearings. Over Sokol’s objection, the district court adopted those findings and conclusions and entered judgment on the master’s report without hearing evidence. The judgment included an order that Sokol pay Kaelter a sum representing the minor child’s unreimbursed medical expenses. On the parties’ motions for reconsideration, the district court entered additional orders, including its decision to make its own determination regarding the unreimbursed medical expenses.
Sokol appealed, arguing about the district court’s refusal to hold an evidentiary hearing; the master’s failure to conduct proceedings in accordance with K.S.A. 60-253 (setting out procedure for trial by special masters); and whether Sokol timely appealed based on whether various motions for reconsideration filed with the district court after each of its rulings tolled the time to appeal. The Court of Appeals held that Sokol failed to timely appeal portions of the judgment but could pursue one issue relating to the failure of the master to take an oath. The panel then affirmed the district court’s order, ruling Sokol failed to exercise reasonable diligence to object when he first learned the master did not take an oath while the master was still working on the case. Kaelter, 2013 WL 1876444, at *8.
After the panel filed its opinion, it granted Kaelter s request for appellate costs and attorney fees under Supreme Court Rule 7.07(b) (2014 Kan. Ct. R. Annot. 70) (appellate court may award attorney fees for appellate services in cases in which district court had authority to award fees), citing K.S.A. 2013 Supp. 23-2216 (in parentage action, district court may award costs and attorney fees as justice and equity may require).
Sokol timely petitioned this court for review of the panel’s decisions, which we granted. See K.S.A. 20-3018(b).
The Lack of Appellate Jurisdiction
The jurisdictional issue arises because the district court’s written journal entry memorializing the additional orders, filed October 27, 2010, indicates the district court could not at that time “determine an appropriate division of past medical expenses” due to a lack of sufficient documentation. The journal entry further states the district court anticipated the filing of a future motion for those unreimbursed medical expenses and an exchange of information between the parties in the hope that a resolution could be reached. The record on appeal does not show the issue was ever resolved before Sokol initiated this appeal.
We issued a show cause order directing the parties to be prepared at oral argument to address whether the appeal was premature due to a lack of a final order addressing all the issues. See K.S.A. 2013 Supp. 60-2102(a)(4). As explained in our order, tire record appeared to indicate the October 27, 2010, journal entry left open “an appropriate division of past medical expenses” due to a lack of sufficient documentation. At oral argument both parties confirmed the unreimbursed medical expenses issue remained outstanding at the time the notice of appeal was filed; and, in fact, was still outstanding at the time of oral arguments. Both parties conceded appellate jurisdiction never existed to address the merits.
“Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute.” Flores Rentals, L.L.C. v. Flores, 283 Kan. 476, 481, 153 P.3d 523 (2007). An appeal may be taken to the Court of Appeals as a matter of right from any “final decision.” K.S.A. 2013 Supp. 60-2102(a)(4). A “final decision” generally disposes of the entire merits of a case and leaves no further questions or possibilities for future directions or actions by the lower court. The term “final decision” is self-defining and refers to an order that definitely terminates a right or liability involved in an action or that grants or refuses a remedy as a terminal act in the case. In re T.S.W., 294 Kan. at 433.
We hold that the district court did not enter a final decision, having left unresolved die unreimbursed medical expenses issue. Therefore, the Court of Appeals lacked jurisdiction. For that reason, the judgment of the Court of Appeals affirming the district court is vacated.
Applying the same rationale, we also vacate the panel’s order awarding costs and attorney fees to Kaelter^ which Sokol challenges in his briefing as an abuse of discretion. Under K.S.A. 2013 Supp. 23-2216, the decision to award attorney fees and the amount of those fees is within the discretion of the awarding court. The award is reviewed on appeal for abuse of discretion. Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 169, 298 P.3d 1120 (2013). Abuse of discretion occurs when judicial action is (1) arbitraiy, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. 297 Kan. at 169. As explained above, the award was premised on an error of law, i.e., tire panel’s mistaken determination that appellate jurisdiction existed.
Similarly, we deny Kaelter’s pending motion for costs and attorney fees regarding the proceedings on review before this court because we lack jurisdiction.
This appeal is dismissed for lack of appellate jurisdiction.
Michael J. Malone, Senior Judge, assigned. | [
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Pierron, J.:
This appeal involves a dispute over ownership of a tract of land located on the north edge of property owned by Hilltop Lodge, Incorporated (Hilltop) and on the south edge of property owned by V. Ray Thompson and Theresa M. Thompson. The Thompsons commenced an action to quiet title to the disputed property and now appeal the trial court’s determination that they did not acquire title to the disputed piece of property by adverse possession. We affirm.
The Thompsons moved onto their property in 1982 and subsequently purchased it in 1984. Hilltop has owned the property directly south of the Thompsons’ property since 1971. The disputed property is a tract of land located on the south edge of the Thompsons’ property and the north edge of property owned by Hilltop. Hilltop’s parking lot abuts the disputed property.
The Thompsons did not know the exact location of the property line. No survey was done when they bought the property. There were no stakes or pins marking the property line and no visibly apparent property line existed.
After moving onto tire property in 1982, the Thompsons or their representatives maintained tire lawn extending to the parking lot of Hilltop, including the tract of land in dispute. Sometime in 1991 or 1992, the Thompsons installed a fence and, later, planted trees on the tract of land in dispute. The Thompsons did not have a survey completed when they installed the fence.
Hilltop employees also maintained the disputed tract of land. Richard Burks was Hilltop’s head of maintenance from 1980-1990. During this time, Burks said he mowed about 3 swaths (mower deck was 36-42 inches wide) of the disputed property, installed rock and rail timbers between the parking lot and an old existing fence, and sprayed and weeded the rocks in that area.
Jerry Johnson has been a maintenance worker at Hilltop since May 1991. After the Thompsons installed the fence, Johnson always mowed the area up to the new fence. Johnson also sprayed the rocky area between the parking lot and fence. After the Thompsons planted the trees, Johnson mowed around the trees as well. Finally, throughout his employment, Johnson replaced a few of the boards from the fence because cars occasionally hit the fence and broke the boards.
The current director of maintenance, John Kohler, has worked at Hilltop for the past 14 years. Kohler has also mowed the lawn on the disputed property. The Thompsons never indicated to any of Hilltop’s employees that they should discontinue maintenance on the property or that the Thompsons were.the owners of the property.
When Mr. Thompson decided to install the fence, he approached Harold Heidrick, Hilltop’s chief executive officer, and asked Heidrick if he would pay for one-half of the fence. Heidrick and Kohler determined that the fence should be located at least 3 feet back from the parking lot curb so that vehicles would not hit and damage the fence. Neither Heidrick nor any Hilltop employee ever represented to Mr. Thompson that the fence was the property line. Heidrick agreed to pay one-half of the fence cost.
Similarly, Mr. Thompson requested that Heidrick pay for one-half of the costs of planting trees on the disputed tract of land. Again, Heidrick agreed to pay for one-half of the Thompsons’ costs.
The Thompsons brought an action to quiet title to the disputed tract of land. The trial court determined that die Thompsons did not acquire title to the property by adverse possession and, therefore, Hilltop was the rightful owner of the property. The Thompsons timely appeal.
“Whether title is acquired by adverse possession is a question of fact to be determined by the trier of fact. [Citation omitted.] The standard of review therefore is whether there is substantial competent evidence to support the trial court’s findings. [Citation omitted.] Further, the reviewing court does not reweigh the evidence or judge the credibility of witnesses. [Citation omitted.]” Barrett v. Ninnescah Bow Hunters Ass’n, 15 Kan. App. 2d 241, 246-47, 806 P.2d 485, rev. denied 248 Kan. 994 (1991).
To acquire title by adverse possession a person must be “in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years.” K.S.A. 60-503.
The trial court determined that the Thompsons’ use of the disputed land was “incidental, permissive and not of the character needed to give unequivocal notice to [Hilltop] of [the Thompsons’] claim of title to tire tract.” Specifically, the Thompsons’ “maintenance of a lawn along an open boundary does not constitute an adverse holding or give sufficient notice to the owner of tide to support a claim of adverse possession.”
As the facts showed, both parties cared for the property in various ways, witii ho indication that the Thompsons were exclusively providing the maintenance. -
Accordingly, there- is substantial competent evidence to support the trial court’s determination that the Thompsons’ use of the property did not give unequivocal notice to Hilltop of the Thompsons’ claim of title to the tract.
Next, the.trial court determined that the Thompsons did not have exclusive possession' of the disputed tract of land for 15 years. As discussed above, several of Hilltop’s maintenance employees testified that during their employment they were responsible for maintaining the property, both before and after the fence was installed and the trees planted.
Again, the evidence runs against adverse possession as Hilltop’s employees were exhibiting activities which seem to show possessory interest by Hilltop.
Accordingly, there is substantial competent evidence to support the trial court’s determination that the Thompsons did not have exclusive possession of the disputed tract of land for 15 years.
Finally, the trial court determined the Thompsons did not prove they held the property under a good faith belief of ownership. Specifically, the court concluded Mr. Thompson’s discussions with Heidrick about placing the fence, planting the trees, and sharing the costs showed the lack of a good faith belief of ownership.
Furthermore, Mr. Thompson testified that he did not know the exact location of the property line. No survey was done when he bought the property. There were no stakes or pins marking the property line and no clear property line existed. Finally, the Thompsons did not have a survey completed when they installed the fence. Accordingly, there is substantial competent evidence to support the trial court’s determination that the Thompsons did not hold the property under a good faith belief of ownership.
As a result, there is substantial competent evidence to support the trial court’s determination that the Thompsons did not acquire title to the property by adverse possession.
The Thompsons also assert that they should be compensated for the improvements made to the property because they occupied the property under color of title. The trial court did not award the Thompsons any damages for improvements to the property.
The trial court’s decision did not address whether the Thompsons occupied the property under color of title. Nevertheless, generally, when neither party has objected to inadequate findings of fact, the trial court is presumed to have found all facts necessary to support the judgment. Gilkey v. State, 31 Kan. App. 2d 77, 77-78, 60 P.3d 351, rev. denied 275 Kan. 963 (2003).
The standard of review is whether the record contains sufficient evidence to support the trial court’s judgment denying damages for improvements to the disputed property. See Board of Wyandotte County Comm’rs. v. Adkins, 12 Kan. App. 2d 522, 523-24, 749 P.2d 1056 (1988).
K.S.A. 60-1004 permits a person who peacefully occupies property under color of title in good faith to be compensated for good faith improvements thereon. However, the record indicates that the Thompsons did not occupy the disputed property under color of title.
“ ‘Color of tide has reference to something which has dre appearance or gives the semblance of title but is not such in fact. It has been termed “apparent right.” ’ [Citations omitted.] A writing which professes to pass title on its face but which does not do so either due to lack of tide in the person malting it or from some type of defective conveyance may constitute ‘color of tide.’ [Citation omitted.]” Munkres v. Chatmon, 3 Kan. App. 2d 601, 604, 559 P.2d 314 (1979).
The Thompsons acquired title from Anne B. Briginshaw for the following real estate:
“A tract of land commencing 700 feet North of the Soutiieast comer of the Southeast Quarter (SE 1/4) of Section Five (5), Township Seven (7) Soudi, Range Seven (7) West of the Sixth Principal Meridian, Mitchell County, Kansas, thence West Three Hundred (300) feet; thence North One Hundred Twenty (120) feet; thence East Three Hundred (300) feet; tirence South One Hundred Twenty (120) feet to the place of beginning, all in Mitchell County, Kansas.”
The relevant part of Hilltop’s deed included the following real estate:
“A tract of land commencing 165 feet West of tire Southeast comer of the Southeast Quarter of Section Five (5), Township Seven (7) South, Range Seven (7) West of die 6th P.M.; thence North 275 feet; dience East 165 feet; thence North 425 feet; thence West 300 feet; thence North 328.25 feet . . . .”
The starting points for both property descriptions are at the “Southeast comer of tire Southeast Quarter of Section Five (5), Township Seven (7) South, Range Seven (7) West of the Sixth [Principal Meridian].” The Thompsons’ property begins 700 feet north of the starting point. Hilltop’s property ends 700 feet north of the starting point (thence North 275 feet; . . . thence North 425 feet). Both properties then run west for 300 feet. It is along this property line that the disputed property is located.
The deed which the Thompsons received from Briginshaw did not profess to pass title to the disputed property to the Thompsons. According to the Thompsons’ deed, their property began 700 feet north of the starting point described in the deed. According to the survey completed by Schwab-Eaton in 2002, the Thompsons’ trees and fence were located south of the deed’s starting point. Therefore, if the deed did not profess to pass title of the disputed property, tire Thompsons could not have occupied it under color of title.
The record does not contain any facts to support the contention that the Thompsons occupied the property under “color of title.” Accordingly, there is sufficient evidence to support the trial court’s denial of damages for improvements to the disputed property.
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The opinion of the court was delivered by
Luckert, J.:
A jury convicted Darren Knox of premeditated first-degree murder under K.S.A. 21-3401(a). In this direct appeal from that conviction, he raises six issues, which we have reordered. None of the issues presents reversible error. We hold:
(1) Knox was not entitled to an instruction on self-defense because the evidence, even when viewed in the light most favorable to Knox, established Knox’s use of deadly force was not legally justified. Rather, Knox provoked the confrontation;
(2) The district court did not commit clear error by failing to instruct on second-degree intentional murder. In light of the strong evidence of premeditation, Knox does not firmly convince us the jury would have returned a different verdict had the instruction been given;
(3) While the prosecutor committed misconduct during closing arguments by vouching for the credibility of some witnesses, discussing facts not in evidence, and disparaging the defense, the statements did not deny Knox a fair trial;
(4) The district court did not err in excluding evidence suggesting a third party might have had a motive to commit the murder because no evidence connected a third party to the crime;
(5) Knox did not make a sufficient proffer to preserve his argument that the district court violated his confrontation rights by limiting cross-examination of a State witness; and
(6) The one presumed instructional error and the several instances of prosecutorial misconduct did not cumulatively deprive Knox of a fair trial.
Facts and Procedural Background
On August 3, 2008, around 1 p.m., Krystal Fears was in the upstairs bedroom of her house when she heard what she thought were fireworks. She ran to the window. Outside, three young men were walking down tire street shooting at the passenger side of a white Mustang drat had pulled into die driveway of a house across the street. The driver of the Mustang was Fears’ friend, Lafayette Morris. Morris tried to exit die car and run, but he collapsed from a mortal gunshot wound. The three men ran up die street, and Fears ran out of her house to help Morris.
Fears initially told detectives that two of the three men were shooting at Morris’ Mustang but later she could not remember how many men had fired shots. During Knox’s first trial, which ended in a hung jury, Fears testified to seeing Morris with a gun firing back at the three men. But she did not remain consistent on this point. In Knox’s second trial, she testified that Morris did not have a gun. Investigators never found a handgun in Morris’ possession or on the scene.
Fears’ sister was also home when the gunshots began. She too looked out her upstairs window to see three men in the street. She only remembered seeing one man fire a gun at Morris’ car, and she could not recall what the other two men were doing or if they had weapons.
Fears’ mother heard the gunshots from the downstairs kitchen and ran to the front door. Sire told investigators that she saw two young men in the street; one was shooting at Morris and the other was running. She saw Morris get out of his Mustang and fall as he tried to run.
At the scene, investigators found Morris’ body lying in a pool of blood near the driver side of the Mustang. A subsequent autopsy revealed that a fatal 9mm bullet had entered the right side of Morris’ chest, collapsed both of his lungs, and came to rest in the soft tissue of his left arm. The Mustang had three bullet holes in its passenger side window and three bullet holes in its passenger side quarter panel. Outside the Mustang on the passenger side, investigators collected three fired .40 caliber cartridges and four fired 9mm cartridges. There were no bullet holes on the driver side, no fired cartridge cases inside the Mustang, and no fired cartridge cases outside the Mustang on the driver side.
Less than 2 weeks after Morris’ murder, an acquaintance of Morris’, Darrius Freeman, told his probation officer that he was being shot at and threatened; he wanted to document who was after him in case he had to defend himself. Freeman said that after Morris’ murder, “RonRon” called him and told him, “We got your boy Laffy [Lafayette Morris], now you and Shoolde next.” The probation officer referred Freeman to a police detective. Although Freeman talked to the detective about the phone call, he would not disclose any information about Morris’ murder because he did not want to be a “snitch.” The record does not clearly establish whether Freeman or investigators knew “RonRon’s” legal name at that point, but at the second trial the jury heard a recorded conversation in which Knox identified himself by using that nickname.
A little over a month after Freeman’s initial report to his probation officer and the detective, Freeman decided to provide additional information about Morris’ murder. The change of mind occurred after Freeman was charged with federal crimes and reached a plea agreement that obligated him to cooperate with the investigation of Morris’ murder. According to Freeman’s statement, on tire day of Morris’ murder, Freeman heard gunshots as he left a house located about a block from where Morris was shot. Freeman hid on the side of the house. After the shots stopped, he saw one of his longtime enemies—Chris Holliday—and three other men—Mack Calhoun, Casey Ellis, and “RonRon”—holding guns and running to a nearby orange Avalanche SUV. Freeman recognized the vehicle as belonging to Holliday. The Avalanche was parked in front of a white truck that Freeman knew belonged to another enemy, Darren Allen. After the men entered the vehicles, they drove away. Freeman also informed police that the orange Avalanche was painted black soon after. And law enforcement did later pick up a black Avalanche, which clearly used to be orange drat contained Holliday’s identifying information. Although Freeman picked others out of photographic lineups, he was unable to identify Knox.
Armed with the new information from Freeman, investigators went back to Fears, who was less than eager to cooperate further. When detectives finally obtained an interview with her, they showed her a black and white lineup that included Knox’s picture and asked if she could identify the primary shooter. She asked to see the photographs in color, and from the color lineup she identified Knox as the primary shooter. At trial, the defense attacked the credibility of this identification because Fears had labeled Calhoun as the primary shooter in a previous photographic lineup. Moreover, Fears had testified prior to trial that officers “hinted” at which photograph she should pick, though she clarified that she only meant that the officers told her Knox’s name after she had picked his photograph. Fears’ mother also picked Knox out of the same color lineup. But Fears’ sister could not identify anyone from any lineup.
By the time investigators linked Knox to Morris’ murder, Knox was incarcerated on not-yet related charges. He had been arrested about a week after Morris’ murder for unlawful possession of a .40 caliber Taurus pistol. That charge arose when Kansas City police officers searched an SUV incident to a traffic stop. The officers found the Taurus pistol directly below the back passenger seat occupied by Knox. Subsequent ballistics testing revealed that the .40 caliber cartridges found at the scene of Morris’ murder were fired from that Taurus pistol.
The State charged Knox with premeditated first-degree murder. Prior to trial, the State filed two motions in limine; one seeking to prohibit evidence of drugs and guns that had been found in the house at which Morris was shot and another seeking to prohibit evidence of drugs and a rifle found stashed between the center console and passenger seat of Morris’ Mustang. After a hearing on the motions and over defense objection, the district court granted the motions in limine, finding the evidence not relevant or probative to the case.
Knox and Calhoun were originally tried in November 2009 as codefendants, but the trial ended in a mistrial after the jury could not come to a verdict. Knox’s second trial—without Calhoun as codefendant—began in December 2009. Fears, the State’s first witness, expressed hostility throughout her trial testimony. She testified that she was frustrated, did not want to be involved, and did not cooperate with police. She also admitted that her testimony was inconsistent at points—inconsistencies the defense readily elicited. Freeman testified as well, and the defense questioned him extensively on the plea agreement that led to his cooperation in this case. Also, Freeman equivocated when defense counsel asked him whether he knew “RonRon’s” last name before law enforcement officers told him. When asked why it took him so long to come forward with information, Freeman testified that he wanted to get Morris’ murderers himself, but once incarcerated he knew that could not happen. Fears’ mother and sister also testified, mostly corroborating Fears’ version of events but differing in some details. In addition, the State called various law enforcement officers and forensics experts. Knox presented one witness after the State rested, a man who took photographs and measurements of the location of the murder (about a year after the murder) to provide the juiy with the witnesses’ viewpoints and show the distances involved.
During the instruction conference, Knox requested a self-defense instruction based on tire fact that no witnesses saw the shooting begin; he argued that Morris could have fired the first shot. But the district court denied the request. After deliberations, the jury found Knox guilty of premeditated first-degree murder. Subsequently, the district court sentenced Knox to life in prison without the possibility of parole for 25 years.
Knox timely appealed to this court, and jurisdiction is proper under K.S.A. 22-3601(b)(l) (life sentence imposed).
Analysis
Issue 1: Was Knox entitled to his requested instruction on self-defenseP
Knox argues the district court erred when it denied his request for an instruction on self-defense. In arguing the instruction should have been given, Knox focuses on the lack of direct evidence regarding who fired the first shot and emphasizes Fears’ testimony at the first trial in which she stated that she saw Morris shooting at the three men. Although she contradicted that testimony during Knox’s second trial, Knox’s attorney cross-examined her with her earlier testimony. On appeal, Knox argues the juiy could reasonably have believed he acted in self-defense.
1.1 Standard of review and analytical framework
Because Knox requested a self-defense instruction, a four-step analysis applies to our consideration of his arguments. Those four steps and the standards of review that correspond to each are:
“(1) First, the appellate court should consider the reviewability of tire 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, die court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing die test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
1.2 Parties focus on step three; instruction toas not factually supported
In applying those steps in this appeal, the parties focus on the third step—whether the instruction was factually appropriate. Nevertheless, we must examine each step. Regarding the first step, as we have already stated and as the parties agree, we have jurisdiction over Knox’s appeal. Further, Knox preserved this issue by requesting a self-defense instruction. The parties are also correct that a self-defense instruction would have been legally appropriate. See K.S.A. 21-3211(b) (permitting use of deadly force in self-defense); see also, e.g., State v. Jackson, 262 Kan. 119, 122-23, 936 P.2d 761 (1997). So, like the parties, we turn our focus to the third step and consider the factual appropriateness of a self-defense instruction.
A requested instruction relating to a theory of defense, such as self-defense, is factually appropriate if there is sufficient evidence, when viewed in the light most favorable to the defendant, for a rational factfinder to find for tire defendant on that theory. State v. Story, 301 Kan. 702, 710, 334 P.3d 297 (2014). We examine sufficiency against the applicable defense’s legal elements, which in the case of self-defense are defined in K.S.A. 21-3211. Under that statute, deadly force can only be justified to die extent a person “reasonably believes deadly force is necessary to prevent imminent deadi or great bodily harm to such person or a third person.” K.S.A. 21-3211(b). But the justification of self-defense “is not available to a person who . .. initially provokes the use of force against himself’ unless he or she has exhausted every means to escape from imminent danger or has communicated the good-faitii intent to terminate the use of force. K.S.A. 21-3214(3)(a)-(b); State v. Salary, 301 Kan. 586, Syl. ¶ 3, 343 P.3d 1165 (2015). This limitation makes the self-defense instruction factually inappropriate in this case.
Knox and the odier man or men approached Morris in his Mustang; there was no direct or circumstantial evidence suggesting drat Morris provoked the confrontation. See Salary, 301 Kan. at 596-97 (self-defense instruction not available to person who leaves a confrontation and then returns with a firearm); State v. Nelson, 291 Kan. 475, 481, 243 P.3d 343 (2010) (rejecting claim that defendant was not the aggressor when he chose to go to victim’s house after a verbal altercation hours earlier). Further, the circumstantial evidence indicates that Knox and the others ambushed Morris and fired the first shots.
Several pieces of evidence lead to these conclusions. First, even after tire shots were fired, neighbors could hear the Mustang’s radio, suggesting that Morris had no more than pulled up to the house when Knox and the otiiers confronted him. And the jury also heard drat Morris was Freeman’s “boy” and that Freeman consid ered at least two of Knox’s companions to be enemies. Finally, while no eyewitness testified to who fired the first shot, the forensic evidence eliminates the possibility that the first shot came from Morris.
Specifically, blood and gunshot patterns indicate tire first shots came from outside the passenger side of the car. Fears testified that the men were shooting at Morris before he exited his Mustang, and investigators found blood inside the Mustang. No physical evidence supports a conclusion that Morris fired a shot from inside the car. If Morris had fired first—or even somewhat contemporaneously with the six bullets that penetrated the Mustang from the passenger side—at least one of the bullet holes in Morris’ Mustang would necessarily have been created from a shot exiting the car. But all of the bullets that damaged the Mustang came from outside the passenger side. And some of these bullets went through the rolled-up passenger side window, which leaves no room for arguing that Morris might have shot through an open window. Significantly, investigators did not find any fired bullet cartridges inside tire Mustang or outside on the driver’s side where Morris died.
Thus, the evidence points only to Knox and his companions as the aggressors, aggressors that did nothing to escape from imminent danger or to communicate the intent to terminate the use of force. Even assuming Morris had a gun and at some point fired it, and assuming this was something other than an ambush, Knox’s group clearly—without necessity—chose to walk down the street towards Morris and engage him in a gunfight. “The doctrine of self-defense cannot be invoked to excuse a killing done in mutual combat willingly entered into.” State v. Barnes, 263 Kan. 249, 266, 948 P.2d 627 (1997).
The evidence in this case, even in the light most favorable to Knox, does not provide factual support for a self-defense instruction on Knox’s behalf. As a result, the district court did not err in denying Knox’s request for such an instruction.
Issue 2: Did the district court commit clear error hy failing to instruct on second-degree intentional murder?
Knox alleges another error arising from the failure to give a jury instruction. Specifically, he argues the district court should have sua sponte instructed the juiy on the lesser included offense of second-degree intentional murder. Once again, Knox primarily focuses on the lack of an eyewitness to the events that happened before Fears got to her window. He argues this leaves a potential inference that Knox saw Morris with a gun and formed the intent to kill Morris instantaneously—without premeditation.
2.1 Standard of review and analytical framework
Our standard of review differs for this issue because, in contrast to the self-defense instruction, Knox did not request a lesser included offense instruction on second-degree intentional murder. When a party fails to object to or request a jury instruction at trial, K.S.A. 22-3414(3) limits appellate review to a determination of whether the instruction was clearly erroneous. The application of this standard consists of two parts. “[T]he reviewing court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an ' unlimited review of the entire record.” State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012). Second, if the trial court erred, the reviewing court must conduct a reversibility inquiry. For the error to be reversible, the reviewing court must be “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessity for reversal.” 295 Kan. 506, Syl. ¶ 5.
2.2 Assuming error, not reversible
Regarding the first stage of our analysis, the State does not dispute that a second-degree intentional murder instruction was legally appropriate. Indeed, second-degree intentional murder is a lesser included offense of premeditated first-degree murder. See State v. Scaife, 286 Kan 614, 619-20, 186 P.3d 755 (2008). The State does dispute, however, whether an intentional second-degree murder instruction was factually appropriate. Nevertheless, we need not burden this opinion with the ins and outs of the parties’ arguments on this point because, even if we presume that the instruction should have been given, Knox fails to firmly convince us that the jury would have convicted him of second-degree intentional murder rather than first-degree premeditated murder.
While both second-degree intentional murder and first-degree premeditated murder are intentional crimes, first-degree murder has the additional element of premeditation. See State v. Jones, 279 Kan. 395, 401, 109 P.3d 1158 (2005). Notwithstanding conflicting evidence about whether Morris held a gun, the evidence strongly established that Knox intentionally shot Morris with the intent to kill and did so with premeditation.
“Premeditation means to have thought the matter over beforehand and does not necessarily mean an act is planned, contrived, or schemed beforehand; rather, premeditation indicates a time of reflection or deliberation.” State v. Kettler, 299 Kan. 448, 466, 325 P.3d 1075 (2014). A number of factors assist in determining premeditation: “ '(1) the nature of the weapon used; (2) lack of provocation; (3) the defendant’s conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless.’ ” 299 Kan. at 467 (quoting Scaife, 286 Kan. at 617-18).
Here, Knox’s group—at least two of whom had guns—strategically parked their vehicles and walked down the street towards Morris’ Mustang as it pulled into the driveway. Even before Morris had a chance to turn off his conspicuously loud radio, the men shot at him from the Mustang’s passenger side. The gun later found in Knox’s possession—or his constructive possession, at least—had fired several of the bullets. After Morris fell to the ground, the men ran to the parked vehicles and fled the scene. One of the vehicles, the orange Avalanche, was painted black soon after. And within weeks of Morris’ murder, Knox called to threaten Morris’ friend— Freeman—telling Freeman, “We got your boy Laffy, now you and Shookie next.” These circumstances strongly suggest planning.
At trial, these circumstances were mostly undisputed. Knox primarily argued he had been misidentified and was not present during the shooting. Although he challenged the credibility of witnesses and highlighted conflicting evidence, those conflicts did not impact the circumstances that strongly suggested premeditation— the guns, ambushing Morris as he pulled into his driveway, and fleeing to waiting vehicles (one of which was soon repainted). Certainly, evidence of the subsequent threat against Morris’ friend, Freeman, depended on Freeman’s credibility. But even a juror who rejected some of Freeman’s testimony might have given credence to Freeman’s initial statement to the detective, which preceded his plea agreement.
In light of this strong evidence of premeditation, Knox fails to firmly convince us that the juiy would have returned a different verdict had they received the second-degree intentional murder instruction. See Salary, 301 Kan. at 602 (finding harmless error in the failure to instruct on voluntary manslaughter given strong evidence of premeditation). In other words, even if the instruction was legally and factually warranted, Knox fails to establish clear error.
Issue 3: Did the prosecutor improperly holster the State’s witness and disparage the defense so as to deprive Knox of a fair trial?
Knox argues that prosecutorial misconduct during closing arguments prejudiced the jury against him and denied him a fair trial. Specifically, he contends that the prosecutor improperly bolstered Freeman’s credibility and disparaged the defense.
3.1 Analytical framework
This court utilizes a two-step process to review allegations of prosecutorial misconduct:
“First, an appellate court determines whether there was misconduct, i.e., whether the prosecutor’s comments were outside the wide latitude allowed in discussing the evidence. Second, if misconduct is found, the appellate court determines whether those comments compel reversal, i.e., whether the statements prejudiced the juiy against the defendant and denied the defendant a fair trial.” State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014).
3.2 Prosecutor committed misconduct
Knox complains about the prosecutors statements during closing argument in which she said that Freeman “was brutally honest on the stand,” that he “was on die stand telling you the truth,” and that “we aslced [Freeman] to tell the truth, and that’s what he wanted is he wanted street justice.” Then, after the defense closing, in which Knox’s attorney challenged the credibility of the State’s witnesses and brought up their inconsistent testimony, the State argued in rebuttal why witnesses might have testified as they did:
“Remember in voir dire we talked about why would a person not want to testify? [Defense counsel] made a big deal about this, and you can use that now. Well, maybe they’re not as educated.
“Darrius Freeman, 11th grade, not even a GED. Krystal Fears, 19 years old, because you have experienced attorneys where you’re not experienced, [Defense counsel] has about nine years of experience on top of a law degree. You think he has a little bit more experience than Krystal Fears? Yes. His job is to make them look like liars. That’s his job and that’s xohat he ivas trying to do.” (Emphasis added.)
As Knox correctly argues, “[a] prosecutor should not comment on the credibility of his or her own witnesses.” State v. Elnicki, 279 Kan. 47, Syl. ¶ 6, 105 P.3d 1222 (2005); see Kansas Rules of Professional Conduct 3.4(e) (2014 Kan. Ct. R. Annot. 619-20) (“A lawyer shall not... state a personal opinion as to . .. the credibility of a witness.”). Here, tire prosecutor’s statements that Freeman was “brutally honest” and “was on the stand telling you the truth,” while limited in context, were statements of the prosecutor’s personal opinion regarding Freeman’s credibility. As such, the comments were unsworn and unchecked statements that are not fair commentary on the evidence. See, e.g., State v. Bridges, 297 Kan. 989, 1013, 306 P.3d 244 (2013); State v. Stone, 291 Kan. 13, 19, 237 P.3d 1229 (2010). More subtly, the prosecutor implied that Freeman and Fears were truthful when she argued defense counsel’s job was to make them out as liars, suggesting to the jurors that any potential concerns they might have about the credibility of these witnesses stemmed from sly defense tactics rather than the evidence.
Furthermore, by representing the level of defense counsel’s experience, the prosecutor argued facts not in evidence, which is misconduct. See State v. King, 288 Kan. 333, 351, 204 P.3d 585 (2009). The prosecutor’s statement that it was defense counsel’s job to “make [the witnesses] look like liars” disparaged the role of defense counsel in the adversarial process. Certainly, defense counsel uses the adversarial process to point out weaknesses in the State’s case—areas where there may be a reasonable doubt. And doing so may sometimes expose a witness as a liar—i.e., as one who presents false information with the purpose of deceiving. See Webster’s II New College Dictionary 531, 631, 633 (1999) (defining “liar” as “[o]ne who tells lies” and “lie” as “[t]o present false information with the purpose of deceiving”).
More often, defense counsel exposes the reality that eyewitnesses to stressful events, even when doing their best to be fully honest, vary in their perceptions of and ability to remember the details. Or, if a witness has repeatedly recounted the events to friends, family, investigators, attorneys, or others and has heard others accounts, defense counsel may reveal the false certainty that comes from repeating a statement. Other circumstances such as distance, light, distractions, fading memoiy, bias, or suggestive influence may be explored. Trials expose these realities, but these realities do not necessarily cast some witnesses as liars—ones who purposefully deceive—and others as automatons programmed to accurately recount events. To suggest the purpose of a criminal defense attorney is to take bystanders who happen to witness a crime and portray them as deceptive and dishonest demeans both the adversarial process and defense counsel’s role in that process, and it is misconduct. See State v. Crum, 286 Kan. 145, 150, 184 P.3d 222 (2008) (counsel may comment on trial tactics but cannot disparage opposing counsel).
3.3 Misconduct did not deny Knox a fair trial
In light of the misconduct, we must consider whether the prosecutor’s comments prejudiced Knox and denied him a fair trial. Three factors control this analysis: “ ‘(1) whether the misconduct was gross and flagrant; (2) whether it was motivated by prosecu- tonal ill will; 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.’ ” Armstrong, 299 Kan. at 416 (citing Bridges, 297 Kan. at 1012). No single factor is controlling, but the third factor can override the first two factors only if “ ‘die 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.’ ” Armstrong, 299 Kan. at 417 (quoting State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011], cert. denied 132 S. Ct. 1594 [2012]) (noting application of both statutory and constitutional harmlessness analysis under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 [1967], but recognizing that, as a practical matter, the outcome turns on the constitutional standard because it is more rigorous).
In determining whether a prosecutor’s comments are gross and flagrant, this court generally considers whether the statements violated well-established or unequivocal rules; emphasized improper points; or were repeated, planned, or calculated. Bridges, 297 Kan. at 1015-16. Certainly, it is well established that a prosecutor cannot comment on the credibility of witnesses or discuss facts not in evidence. See, e.g., State v. Pabst, 268 Kan. 501, 506-07, 996 P.2d 321 (2000).
In this case, we do not deem the prosecutor’s comments about Freeman, Fears, and defense counsel to be flagrant violations of this rule. The prosecutor’s theme and repeated message to the jurors was that they should look at a variety of factors and use their common sense when assessing credibility. That by itself might not save the prosecutor from a gross-and-flagrant label, but, in context, the implication that the prosecutor believed the witnesses to be credible was veiy limited in scope and subtle.
Specifically, the comment that Freeman was “brutally honest” referred directly to his statement that he did not know what benefit he would receive from his federal plea deal. Given this context, one might interpret the prosecutor’s statement as a warning to the juiy that Freeman might be willing to say almost anything to im prove his chances of favorable treatment in federal court. The second statement—“[h]e was on the stand telling you the truth . . . [and] we just asked him to tell the truth, and that’s what he wanted is he wanted street justice”—were limited to Freeman’s explanation as to why he did not cooperate earlier in the investigation. Again, while inappropriate, the prosecutor did not attempt to put her appraisal of honesty on all of Freeman’s testimony. Also, the prosecutor encouraged the jury to conclude from Freeman’s demeanor and his motivations that he was truthful, which was not misconduct. Finally, to the extent the prosecutor implied Freeman and Fears were truthful when she said that tire defense counsel’s “job is to make them look like liars,” the implication is so subtle that we question whether jurors would have understood the improper message. And while that comment may have demeaned the defense somewhat, it is at least partially true and not overly offensive. Moreover, the statements about Freeman’s and Fears’ credibility and the defense counsel’s “job” were couched in terms of asking the jurors to use their common sense and to recognize that Fears and Freeman did not ask to be witnesses. The prosecutor pointed out the length of time Fears spent on the stand and suggested she had become frustrated with the process of cross-examination; Fears even asked the judge if she could leave at one point.
With small alterations in word choice, each comment would have been perfectly appropriate. Consequently, we conclude tíre conduct was neither gross nor flagrant.
Second, this court considers whether the statements were motivated by ill will, which “is often ‘reflected by repeated and deliberate misconduct’ ” or indifference to a court’s ruling. Armstrong, 299 Kan. at 419 (quoting State v. Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 [2011]); State v. Marshall, 294 Kan. 850, 862, 281 P.3d 1112 (2012). Here, tire prosecutor did not violate any express court order, and the honesty statements were in close succession, which taken alone is not typically viewed as being “repeated.” Bridges, 297 Kan. at 1016. And the prosecutor did not emphasize the statements. Read in full context, the prosecutor’s remarks appear to be nothing more than a poorly worded attempt to make a legitimate argument—that the evidence established Knox’s guilt and the defense’s attempt to raise the specter of reasonable doubt should not persuade the jury. Additionally, as we have discussed, the scope of the prosecutor’s remarks was limited. Given the subtle or limited scope of the statements, we find no evidence of ill will.
Finally, we consider whether the State has satisfied its burden of proving “ ‘beyond a reasonable doubt that the error complained of. . . did not affect the outcome of the trial in light of the entire record, i.e., [that] there is no reasonable possibility that the error contributed to tire verdict.’ ” Armstrong, 299 Kan. at 417 (quoting Ward, 292 Kan. 541, Syl. ¶ 6). Certainly, credibility—the topic of prosecutor’s misconduct—was a critical issue in this case and the testimony of the State’s eyewitnesses was sometimes inconsistent. Nevertheless, as we have discussed, significant evidence supported the conclusion that Morris’ murder was premeditated. And, while the defense attempted to disparage Fears’ and Freeman’s identification of Knox, other evidence corroborated their testimony. Notably, officers found a weapon involved in the murder in Knox’s constructive possession. In addition, although there are reasons to suspect Freeman’s testimony, especially after he struck a favorable plea deal, Knox’s threatening phone call was revealed to Freeman’s probation officer at a time when Freeman refused to cooperate in the investigation or to be a “snitch.” Further, Fears’ mother also identified Knox as a shooter. Finally, though improperly worded, the statements were made in tire context of appropriate and correctly stated arguments thereby diluting their potentially prejudicial nature.
Examining the evidence as a whole and considering the context of the prosecutor’s statements, we conclude the State has satisfied its burden of establishing beyond a reasonable doubt that the misconduct did not affect the outcome of the trial in light of the entire record.
Issue 4: Did the district court improperly exclude evidence?
Over defense objection, the district court granted two of the State’s motions in limine. One motion resulted in an order prohibiting mention of the drugs and a rifle found inside Morris’ Mustang. The other led to an order prohibiting mention of the drugs and guns found inside the residence at which Morris was parked when he was murdered. On appeal, Knox argues that the district court’s exclusion of the evidence denied him his fundamental right to present his theory of defense.
4.1 Standard of review and analytical framework
A motion in limine is appropriate when:
“(1) tlie material or evidence in question will be inadmissible at trial; and (2) the pretrial ruling is justified as opposed to ruling during trial because die mere offer or mention of die evidence during trial may cause unfair prejudice, confuse die issues, or mislead the jury; the consideration of die issue during trial might unduly interrupt and delay die trial and inconvenience die jury; or a ruling in advance of trial may limit issues and save the parties time, effort, and cost in trial preparation.” Bridges, 297 Kan. at 995.
Here, although he briefly mentions that the evidence was not prejudicial, Knox only presents a challenge to the first part of the test— that is, to the admissibility of the evidence..
A multistep analysis applies when a district court determines the admissibility of evidence. These steps require a court to (1) examine the relevance, (2) consider the application of any applicable rules of evidence, and (3) weigh the probative value of the evidence against any prejudice. 297 Kan. at 995-96; see K.S.A. 60-445. As we will discuss, Knox’s arguments fail at the first step of establishing relevance.
In examining relevance, courts must assess both the evidence’s materiality and its probative nature. 297 Kan. at 995-96 (citing K.S.A. 60-401[b]; State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 [2010]). An appellate court reviews a district court’s determination regarding the materiality of evidence—its tendency “to establish a fact that is at issue and significant under the substantive law of the case”—de novo. The appellate court reviews the probative nature of evidence—the “logical connection between the asserted facts and the inferences they are intended to establish”— for an abuse of discretion. Bridges, 297 Kan. 989, Syl. ¶¶ 2, 5.
4.2 The guns and drugs lacked relevance
Applying these standards first to the guns and drugs found in the house, Knox argues this evidence was relevant to his defense as tending to show that someone else, perhaps a rival drug dealer, was responsible for murdering Morris. Before the district court, Knox argued that the evidence was relevant because someone from inside the house could have shot Morris and most people would know that drug houses are inherently dangerous. The point of both arguments is to focus guilt on a third party.
Yet, evidence of a third party’s motive, on its own, will be excluded for relevance where nothing else connects the third party to the crime. See State v. Carr, 300 Kan. 1, 197-203, 331 P.3d 544 (2014). And nothing in this case connects a third party to the crime. The simple presence of guns and drugs in a house that Morris never had a chance to enter does not lead to an inference that someone else was involved in Morris’ murder. Witnesses saw two or three men walk towards Morris’ Mustang, shoot Morris, and then leave in vehicles. No evidence suggested the involvement of anyone other than Knox and his companions; nothing implicated anyone who entered or exited the house. Nor was there any suggestion that Morris’ murder had anything to do with the drugs and guns found in the house. Theoretically, a house with drugs and guns can be a dangerous place, but that alone has no tendency to show that an unidentified and unseen person from the house or an unidentified rival drug dealer killed Morris.
As to the district court’s ruling excluding evidence that Morris had a rifle stashed in the Mustang between the passenger seat and the center console, Knox claims had the jury known about the rifle, it would have more likely believed Fears’ prior testimony that Morris was armed with a handgun when he died. Then it would have more likely convicted Knox of reckless second-degree murder. But Knox fails to explain a logical connection—any tendency in reason—between the jury believing Fears’ prior testimony and its determining that Knox’s killing of Morris was reckless. If anything, believing that Morris had a gun raises an inference that Knox intended to kill Morris before Morris could shoot Knox. This might be another piece of evidence Knox could point to in asking the district court to instruct on self-defense, but it would not overcome tire legal impediment to that instruction; even under that scenario, Knox and his companions were the aggressors who provoked the shooting.
Because the guns and drugs in both the house and Morris’ Mustang were not material and probative to whether Knox murdered Morris, the district court did not err in excluding the evidence. Knox’s right to present his defense was not violated.
Issue 5: Did the district court err in limiting Knox’s cross-examination of Fears P
At trial, Fears testified that she did not want to be a witness, did not cooperate with police, and did not testify voluntarily. On cross-examination, she reaffirmed that she did not want to be involved in the case. Defense counsel followed with, “Aren’t you, in fact, a witness in another case that—.” At that point, the State objected for relevance. In a colloquy at the bench, defense counsel argued that pointing out Fears’ involvement in another case would impeach her testimony that her involvement in Knox’s case was “not cool in her life and she doesn’t have time to be involved in this sort of thing.” On appeal, Knox argues Fears’ involvement in the other case would show that Fears’ motivation for testifying went beyond the simple fact that she had witnessed Morris’ murder.
From the arguments, it appears that Fears was somehow assisting, presumably as a fact witness, in another case. (Defense counsel told tire district court, “It’s my understanding that she’s claiming to be a fact witness in [the other] case as well.”) Yet, the sole fact that Fears assisted, somehow and in some way, in another case has no bearing on her credibility in this case without some understanding of why she assisted in the other case. Two examples illustrate the point. On the one hand, perhaps Fears willingly worked with the prosecution in the other case, just to be helpful—that would be impeaching. On the other hand, perhaps she witnessed another crime and was again dragged into criminal proceedings reluctantly—that would serve to corroborate her testimony that she was “frustrated,” did not want anything to do with Knox’s case, and did not have time for it.
In other words, Knox may have a valid point that he should have been permitted to cross-examine Fears about her motivation for testifying, but to make that determination we need to know more about Fears’ involvement in the other cases. Yet, the record on appeal does not reflect any details that would shed light on her motivation. As the party seeking to admit ejridence of Fears’ involvement in the other case, Knox had the burden to ensure the record was adequate to malee the determination. To meet that burden, he needed to proffer some details about that involvement. See State v. Evans, 275 Kan. 95, 99, 62 P.3d 220 (2003). Importantly, the “[f] ailure to make a proffer of excluded evidence precludes appellate review because there is no basis to consider whether the trial court abused its discretion.” 275 Kan. at 100.
Without an adequate proffer regarding the details of Fears’ involvement in the other case, this court has no way to assess the impeachment value of tire evidence and no way to determine whether the district court abused its discretion. Consequently, this issue is not preserved and is unreviewable. See National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 274-75, 225 P.3d 707 (2010) (citing Evans, 275 Kan. at 99-100).
Issue 6: Did cumulative errors deny Knox a fair trial?
Knox argues that multiple errors substantially prejudiced him and denied him a fair trial. There were two types of potential errors in this case: (1) the presumed but undecided error in the district court failing to provide a jury instruction on second-degree intentional murder, and (2) the prosecutor’s misconduct. Considering those errors, we must exercise unlimited review over the totality of tire circumstances in this case and determine whether the cumulative effect of the multiple errors substantially prejudiced Knox so as to deny him a fair trial. See State v. Backus, 295 Kan. 1003, 1016-17, 287 P.3d 894 (2012).
Actually, there were several instances of prosecutorial misconduct. Nevertheless, as we previously discussed, we are satisfied the State met the beyond-a-reasonable-doubt standard of Chapman, 386 U.S. at 24, in establishing that the prosecutorial misconduct did not impact the jury’s verdict. Because the Chapman standard applies to that issue, the State—as the party benefitting from the error—must also establish that the cumulative error is harmless beyond a reasonable doubt. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014). We must now consider the prosecutorial misconduct together with the presumed error in faihng to instruct on second-degree intentional murder.
Given the strong evidence of premeditation in this case, the omission of the second-degree intentional murder instruction was a minor error that adds little overall to the prejudicial nature of the errors in this case. Even considered together, we are satisfied beyond a reasonable doubt that the errors did not impact the jury’s verdict. Although Knox did not benefit from a perfect trial, due process does not require perfection, only fairness. See State v. Todd, 299 Kan. 263, 287, 323 P.3d 829, cert. denied 135 S. Ct. 460 (2014). Knox received a fair trial.
Affirmed.
Michael J. Malone, Senior Judge, assigned. | [
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The opinion of the court was delivered by
Beier, J.:
This case turns on whether an allocation order and subsequent orders refusing to set it aside, issued in a Wyandotte County probate matter in 2007 and 2008, were final orders ap-pealable within 30 days. We hold that they were and thus ultimately affirm the result in the district court that denied relief to tire estate of the decedent’s father.
The probate allocation order selected a Colgate-Palmolive Company severance package on behalf of Kenneth Lee Butler, who was employed at the company’s closing Kansas City plant at the time he died intestate in October 2006. The order also divided Colgate-Palmolive’s obligations under the selected severance package be tween Kenneth’s father, Leo, and Kenneth’s estate. After a federal court interpleader proceeding filed by the administrator of Leo’s estate, the amounts allocated by the state pro tern district judge in the probate matter were left intact: $63,640.50 for Leo’s estate and $176,359.50 for Kenneth’s estate. There was no state court appeal from the allocation order. Nor did Leo or his estate ever file a demand against Kenneth’s estate in the state probate proceeding.
Four years after the denial of Leo’s motion to set aside the allocation order, Kenneth’s son and only heir, Franklin Burch, successfully sought a partial distribution from Kenneth’s estate. Leo’s estate attempted a late appeal of the order of partial distribution, arguing excusable neglect from lack of notice. The district court judge disallowed the late appeal, ruling that Leo’s estate had no interest in Kenneth’s estate to pursue. Leo’s estate filed a timely appeal from that order.
A panel of our Court of Appeals ultimately dismissed the appeal for lack of jurisdiction, although, along the way, it addressed the propriety of the district court’s ruling on the late appeal from the partial distribution order. In re Estate of Butler, 49 Kan. App. 2d 335, 307 P.3d 262 (2013). This court granted the petition for review filed by Leo’s estate.
Additional Factual and Procedural Background
Under the Colgate-Palmolive severance program, Kenneth could have selected from one of two options: (1) he could receive a lump sum payment of $127,281 pension benefit under the Colgate-Palmolive Employees’ Retirement Income Plan and severance pay of $54,743, or (2) he could forego the lump sum pension benefit and severance pay and instead receive a lump sum “enhanced pension” payment of $240,000. Kenneth had not made a selection before his death.
Leo and his wife, Jenny, were named as 50/50 beneficiaries for Kenneth’s pension benefit under tire retirement income plan. Jenny died before Kenneth. There was no named beneficiary for any severance payment.
Through an email to Burch’s counsel, a Colgate-Palmolive representative informed Burch about the two options that had been available to Kenneth and requested instruction on how to proceed.
“Had he been actively employed at the time of [Colgate-Palmolive’s] Kansas City plant closing in December 2006, [Butler] would have had the following option: (i) to elect his lump sum Personal Retirement Account, which amounts to approximately $127,000, and severance [pay] in the amount of $54,000 (for a total of $182,000), or (ii) to forego his PRA and any severance, and instead elect a lump sum payment of $10,000 per year of service, which, given his 24 years of service, amounts to $240,000. This amount is paid out of the Company’s pension plan as an enhanced pension. In order to receive either option, Mr. Butler would have been required to sign a general waiver and release, which, as we discussed, the estate will now execute.
“Mr. Butler’s father is named as the beneficiary for pension purposes. Thus, depending on which election is made by Mr. Butler’s estate, the Company will disburse the money to the appropriate party (the estate in the case of severance; Mr. Butler’s father in the case of pension). Please let me know which option the estate will elect, and we can proceed accordingly.”
In May 2007, Burch filed a “Petition for Determination and Allocation of Severance Benefits” with the district court. In the petition, Burch informed the court generally about the two Colgate-Palmolive options and stated that, as administrator of Kenneth’s estate, he was “seeking a Court determination of which election to make, and the beneficiary/allocation to each party, either [Leo], or the Estate, or divided between [Leo] and the Estate.” The pro tern district judge held a hearing on Burch’s petition, at which Burch’s counsel said Leo had been served with a copy of the petition and had notice of the hearing. Leo did not appear in person or through counsel.
On the same day as the hearing, the judge issued an “Order Determining Allocation of Severance and Pension Benefits of Colgate-Palmolive Company,” i.e., the allocation order. She identified the two severance program options and ruled that Jenny’s 50 percent share lapsed when she predeceased Kenneth. As a result, Jenny’s 50 percent flowed to Kenneth’s estate. The judge also ruled that Leo, as named beneficiary of the other 50 percent of Kenneth’s pension, was entitled to $63,640.50 of the $240,000 available under the second Colgate-Palmolive option, leaving $176,359.50 for Kenneth’s estate. The judge characterized the payment due Kenneth's estate as “severance pay.”
On July 9, 2007, counsel for Leo entered an appearance in the probate matter, and, on August 27, 2007, Leo filed a motion to set aside the court’s allocation order. Leo argued that (1) the allocation order was void because the Colgate-Palmolive pension plan was governed by the federal Employee Retirement Income Security Act of 1974 (ERISA), and the district court lacked subject matter jurisdiction to address the allocation of benefits; (2) Burch failed to follow the proper procedure for seeking to enforce beneficiary rights under an ERISA plan; (3) the order disregarded the plan administrator’s discretion in allocating benefits; and (4) the order was inconsistent with the plan options.
Burch argued in his response to the motion that Leo had confused subject matter jurisdiction and choice-of-law principles. In addition, Burch asserted that Leo’s argument about the incorrect application of state law instead of federal law had been waived because Leo failed to file a notice of appeal within 30 days of the district court’s order. According to Burch, Leo was “attempting to substitute a Motion to Set Aside for a properly docketed notice of appeal.”
The judge denied Leo’s motion, ruling that Leo had received notice of the hearing on Burch’s petition but “voluntarily chose not to appear at said hearing in person or provide the court with any pleadings or documentation indicating his objection to the court’s ultimate findings.” The judge also stated that Leo’s attorney had entered her appearance on Leo’s behalf “well within the [30]-day time for appeal of the court’s [allocation] order.” On Leo’s jurisdictional challenge, the court ruled:
“The court, under the circumstances existing in this case, had concurrent jurisdiction with die Federal Court to hear and determine tire issues contained herein. The issue of whether the trial court utilized the proper law required by ERISA in making a determination of the allocation of these benefits is one which, if the movant felt aggrieved by, must have been pursued by the movant in an appeal to the Kansas Court of Appeals and is not properly the subject, two months after the order is entered of a motion to set same aside pursuant to K.S.A. 60-260. Again, as argued by the petitioner, K.S.A. 60-260 is not properly utilized in a matter in which there is a specific statutory provision setting forth the time limits within which a notice of appeal must be filed which in this case [is] set out in K.S.A. 60-2103, when the failure to act pursuant to the provisions of this latter statute is voluntary or is the result of negligence.”
The judge slightly amended the order nearly 5 months later but did not disturb the rulings described above.
Nearly 4 years later; Burch filed a petition for partial distribution, seeking $120,000 from Kenneth’s estate. In the petition, Burch requested a finding that notice to others and a live hearing on the petition were unnecessary because Burch was the sole heir who would be affected and there were no outstanding or pending demands filed against the estate. The partial distribution was approved on April 18, 2012.
Almost 2 months later, Leo’s estate sought to appeal the partial distribution order. The estate also challenged the allocation order and “all other rulings and orders on all issues related thereto.” The estate argued that the tardiness of its appeal from the partial distribution order should be forgiven as excusable neglect because it had not been provided timely notice of tire petition for partial distribution or a copy of the partial distribution order.
No order memorializing the district court’s August 14, 2012, ruling on Leo’s estate’s motion to extend the time for filing an appeal of the partial distribution order appears in the numbered pages of the Table of Contents of the record on appeal. The first volume of the record simply includes a loose, single-sheet photocopy of the ruling. That being said, the parties do not dispute the ruling’s content, and the Court of Appeals quoted from it. We therefore rely on the unnumbered photocopy as well.
In the ruling, the district court acknowledged that Leo’s estate had not received notice and that typically such a failure would support a ruling of excusable neglect allowing a late appeal. But,
“in this case, such a holding is not that simple. [Leo’s estate] is not an interested party as it pertains to the Order of Partial Settlement. [Leo’s estate] is wishing to appeal an order entered by the Court May 21, 2008. That order dealt with the allocation of certain severance and pension benefits of Colgate-Palmolive as and between [Leo] and the Estate of Kenneth Butler. The Court ruled on this matter in 2008, and no appeal was taken from those rulings. [Leo’s estate] now maintains that the Order of Partial Distribution'begins the appeal time on those rulings. This Court does not agree. A review of K.S.A. 60-2103 persuades this Court that tire ruling made by the Court in 2008 was a final order as to tire rights of [Leo] and that appeal from th[at] ruling had to have been filed within 30 days of May 21, 2008. Nothing in the record indicates any excusable reason for delay in doing so and as such [Leo’s estate] at this.time is beyond the statute as to time for appeal.”
Leo’s estate filed a timely appeal from this ruling. Before the Court of Appeals, Leo’s estate argued that it was still an interested party at the time of the order of partial distribution because it was entitled to retirement benefits held in Kenneth’s estate. Leo’s estate also repeated Leo’s earlier arguments that the allocation order was void because the pro tern district judge divided Kenneth’s retirement benefits according to state probate law instead of federal ERISA law and that the judge divided the benefits in a manner contrary to the terms of the Colgate-Palmolive plan.
The Court of Appeals began its discussion by stating, correctly, that it was necessary to determine its own jurisdiction over tire appeal first. As it observed, all Kansas appellate jurisdiction is statutory and subject to time limits. And an appellate court that lacks jurisdiction is bound to dismiss an appeal. Butler, 49 Kan. App. 2d at 339 (citing In re T.S.W., 294 Kan. 423, 432, 276 P.3d 133 [2012]).
The Court of Appeals then took a wrong turn, however. It focused on whether it would have had jurisdiction over the late appeal of Leo’s estate from the oi'der of partial distribution and the underlying issue of whether the estate had any interest in Kenneth’s estate in 2012 when the partial distribution order was issued. It did not focus on whether it had appellate jurisdiction over the timely appeal of Leo’s estate from the August 2012 ruling of the district court rejecting the untimely appeal from the April 2012 order of partial distribution. The confusing procedural history of this case made the error understandable, but the Court of Appeals erred when it ruled that it lacked appellate jurisdiction and must dismiss. We therefore hold, on petition for review, that Leo’s estate’s appeal must be reinstated.
Having said that, we could remand this case to the Court of Appeals to address the merits of the ruling on the motion to allow the late appeal of tire order of partial distribution. See, e.g., Barnes v. Board of Cowley County Comm'rs, 293 Kan. 11, 28, 259 P.3d 725 (2011). But that step is unnecessary in this case, because the controlling facts are undisputed and the Court of Appeals, despite its ostensible jurisdiction-based dismissal, discussed much of the law governing the merits of the appeal. We can therefore determine at this point whether the panel’s other legal rulings were correct and whether the district court abused its discretion in refusing to allow the late appeal on the basis of excusable neglect. See Bank of Whitewater v. Decker Investments, Inc., 238 Kan. 308, 315, 710 P.2d 1258 (1985) (abuse of discretion standard of review on excusable neglect); see also Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 169, 298 P.3d 1120 (2013) (error of law by district judge one way to establish abuse of discretion).
The Court of Appeals panel interpreted language from an amendment to K.S.A. 59-2401, which became effective July 1, 2006. Under that language, the panel ruled, subsection (a) of K.S.A. 2012 Supp. 59-2401 did not apply, and subsection (b) of K.S.A. 2012 Supp. 59-2401 did. Subsection (b) made the civil code applicable to appeals from the district courts to the appellate courts in decedent’s estate cases. Under K.S.A. 60-2102(a)(4), appeals as of right could be taken only from final decisions in the district court; and K.S.A. 60-2103 set a 30-day time limit for such appeals. The Court of Appeals ultimately agreed with the district court that the allocation order had been final and that Leo needed to appeal it within 30 days to maintain an interest in the assets in Kenneth’s estate. Butler, 49 Kan. App. 2d at 340-42, 345-46 (rejecting earlier panel’s construction of 2006 amendment in In re Estate of Barfoot, No. 98,892, 2008 WL 4661911 [Kan. App. 2008] [unpublished opinion]). Because Leo failed to attempt a state court appeal within 30 days, he had sacrificed any interest he may have had in the assets in Kenneth’s estate long before April 2012, when the district court issued its partial distribution order. The absence of any interest meant that Leo’s estate was not entitled to notice and could not file a late appeal based on excusable neglect. 49 Kan. App. 2d at 346.
Leo’s estate listed seven overlapping issues in its petition for review from the Court of Appeals’ decision: (1) and (2) whether the Court of Appeals panel erred in holding that the allocation order was final and appealable; (3) and (4) whether the panel applied the wrong version of K.S.A. 59-2401; (5) whether tire panel erred when it held that an appeal of a probate order from a district court to an appellate court shall be taken in the manner provided by Chapter 60 of the Kansas Statutes Annotated; (6) whether the panel erred by holding that Leo’s estate had no interest in tire assets of Kenneth’s estate; and (7) whether the panel erred when it concluded that Leo failed to file a timely appeal of the allocation order.
Discussion
Despite the list of seven issues in the petition for review, the answer to just one question dictates our disposition of this appeal, i.e., our decision whether the district judge made an error of law and thus abused his discretion by refusing to allow a late appeal of the order of partial distribution. The question is: Was the allocation order—or the last ruling refusing to set it aside—final and thus appealable within 30 days?
The finality of a district court probate order and the appropriateness and timing of an appeal from it raise questions of statutoiy interpretation subject to unlimited review by an appellate court. In re Estate of Pritchard, 37 Kan. App. 2d 260, 276-77, 154 P.3d 24 (2007).
Both the district court and the Court of Appeals panel correctly understood that the allocation order and the rulings refusing to set it aside were at the heart of this appeal. If appealable within 30 days, then Leo’s failure to pursue such an appeal deprived him of any further interest in the assets of Kenneth’s estate. There was no such appeal and no later Chapter 59 demand. This meant Leo’s estate had no interest by the time the partial distribution was sought and ordered, and no late appeal from those proceedings Would be allowable.
The Court of Appeals, despite occasionally saying that the plain language of K.S.A. 2012 Supp. 59-2401 governed, appeared to engage in a fairly elaborate examination of the 2006 amendment’s history and substantive background considerations to determine the statute’s meaning. See Butler, 49 Kan. App. 2d at 342-343. We agree with its determination that subsection (b) rather than sub section (a) would have applied to any appeal from the pro tem district judge’s allocation order and the rulings refusing to set it aside, but we arrive at agreement with this point by means of a less circuitous route. In short, the plain language of the statute governs. It provides:
“(a) An appeal from a district magistrate judge to a district judge maybe taken no later than 30 days from the date of entry of any of the following orders, judgments or decrees in any case involving a decedent’s estate:
(1) An order admitting or refusing to admit a will to probate.
(2) An order finding or refusing to find that there is a valid consent to a will.
(3) An order appointing, refusing to appoint, removing or refusing to remove a fiduciary other than a special administrator.
(4) An order setting apart or refusing to set apart a homestead or other property, or making or refusing to make an allowance of exempt property to the spouse and minor children.
(5) An order determining, refusing to determine, transferring or refusing to transfer venue.
(6) An order allowing or disallowing a demand, in whole or in part, when the amount in controversy exceeds $5,000.
(7) An order authorizing, refusing to authorize, confirming or refusing to confirm the sale, lease or mortgage of real estate.
(8) An order directing or refusing to direct a conveyance or lease of real estate under contract.
(9) Judgments for waste.
(10) An order directing or refusing to direct the payment of a legacy or distributive share.
(11) An order allowing or refusing to allow an account of a fiduciary or any part thereof.
(12) A judgment or decree of partial or final distribution.
(13) An order compelling or refusing to compel a legatee or distributee to refund.
(14) An order compelling or refusing to compel payments or contributions of property required to satisfy the elective share of a surviving spouse pursuant to K.S.A. 59-6a201 et seq., and amendments thereto.
(15) An order directing or refusing to direct an allowance for the expenses of administration.
(16) An order vacating or refusing to vacate a previous appealable order, judgment, decree or decision.
(17) A decree determining or refusing to determine the heirs, devisees and legatees.
(18) An order adjudging a person in contempt pursuant to K.S.A. 59-6a201 et seq., and amendments thereto.
(19) An order finding or refusing to find that there is a valid settlement agreement.
(20) An order granting or denying final discharge of a fiduciary.
(21) Any other final order, decision or judgment in a proceeding involving a decedent’s estate.
“(b) An appeal from the district court to an appellate court taken pursuant to this section shall be taken in the manner provided by chapter 60 of the Kansas Statutes Annotated for other civil cases.” (Emphases added.) K.S.A. 2012 Supp. 59-2401.
Subsection (a) states clearly that it is applicable to appeals taken from magistrate judges to district judges. Subsection (b) states clearly that it is applicable to appeals from the district court to the appellate court. When a statute’s language is plain and unambiguous, we interpret it and apply it as drafted by the legislature and do not indulge in statutory construction. See In re Estate of Strader, 301 Kan. 50, 55, 339 P.3d 769 (2014). Subsection (a) is simply irrelevant to the question before us in this case because we are not examining the possibility of an appeal from a magistrate judge to a district judge. Anything said in any prior decision of the Court of Appeals that would lead to a contrary conclusion is expressly rejected.
But this is not to say that the subject matter of orders subject to appeal under the various constituent categories of (a) or the degree of such orders’ finality will never resemble those orders subject to appeal under (b). Indeed, we observe, on finality alone, that K.S.A. 2012 Supp. 59-2401(a)(21) specifically contemplates appeal from a magistrate judge to a district judge on “[a]ny other final order, decision or judgment in a proceeding involving a decedent’s estate.” But we need not and do not decide the effect of overlap or similarity between appeals under subsection (a) and subsection (b) today. That is grist for the mill on another day in another case or for possible legislative clarification in the meantime.
Returning to what is before us today, under the authority of K.S.A. 2012 Supp. 59-2401(b) and its reference to Chapter 60, including K.S.A. 60-2102(a)(4), we agree with the Court of Appeals and the district court that the allocation order and the orders re fusing to set it aside finally determined the existence or nonexistence of Leo’s interest in the assets of Kenneth’s estate. An appeal as of right from a final order had to be taken within 30 days to preserve Leo’s right to complain that he had a right to additional money from the Colgate-Palmolive plan. See K.S.A. 60-2103.
This court has explained:
“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 tire future or further action of the court.’ ” ’ State ex rel. Board of Healing Arts v. Beyrle, 262 Kan. 507, 941 P.2d 371 (1997) (quoting Gulf Ins. Co. v. Bovee, 217 Kan. 586, 587, 538 P.2d 724 [1975]). This court has noted the term ‘ “ ‘final decision is really self-defining. Obviously it is an order which definitely terminates a right or liability involved in the action, or which grants or refuses a remedy as a terminal act in tire case.’ ” ’ Honeycutt v. City of Wichita, 251 Kan. 451, 457, 836 P.2d 1128 (1992) (quoting 2 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-2102, Comments [1979]).” Flores Rentals v. Flores, 283 Kan. 476, 481-82, 153 P.3d 523 (2007).
We reject the argument of Leo’s estate that the allocation order did not qualify as final because it did not dispose of “the entire merits of the probate estate.” That was not necessary. As the Court of Appeals stated, “no future action” by the district court was required to dispose of issues arising out of the Colgate-Palmolive plan. See Butler, 49 Kan. App. 2d at 345. Leo was not otherwise an heir, a claimant, or other party to the probate proceedings. The allocation order and its subsequent reinforcement in the order and amended order denying Leo’s motion to set it aside “definitely terminate[d] a right or liability involved in the action.” See Flores, 283 Kan. at 482. Any uncertainties that gave rise to the allocation order were addressed and resolved and would not be revisited in district court. The finality of the order means that the collateral order doctrine, a narrow exception to the finality requirement mentioned by the Court of Appeals panel in its opinion, has no potential application here. See In re T.S.W., 294 Kan. at 434.
Under these circumstances, Leo had to take a timely appeal to preserve his interest. It is undisputed that Leo never attempted to pursue a timely appeal of the allocation order in state court. Because Leo failed to act when action was required, his estate cannot resurrect his disagreement with the pro tem district judge’s allocation order now.
Given the authorities and analysis above, we do not reach the merits of Leo’s estate’s argument before the district court and the Court of Appeals that the allocation order was void or otherwise in error. Leo’s estate is not properly before the court and in a position to advance those arguments, even those among them that can be raised at any time. See K.S.A. 2012 Supp. 60-260(b)(4); State v. Trotter, 296 Kan. 898, 905, 295 P.3d 1039 (2013) (void judgment nullity that may be vacated at any time; yet must be raised in proper procedural vehicle); Vogeler v. Owen, 243 Kan. 682, 685, 763 P.2d 600 (1988) (K.S.A. 60-260[b] not provided to relieve party from free, calculated, and deliberate choice; party remains under duty to take legal steps to protect interests).
Conclusion
The dismissal of this appeal by the Court of Appeals panel is reversed and the appeal is reinstated. Because the estate of Leo E. Butler had no interest to preserve when the order of partial distribution was issued, it was not entitled to notice and could not rely on failure of notice to take a late appeal from that order. The district court judge did not abuse his discretion in so ruling, and the district court judgment is affirmed.
Michael J. Malone, Senior Judge, assigned. | [
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King, J.:
This case involves a challenge to tire district courts jurisdiction to divide military retirement benefits pursuant to the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § 1408 (2012).
In 1994 the Shawnee District Court granted Joann and Alfonza Williams a divorce. Nineteen years later Joann sought to enforce a provision of the divorce decree that awarded her 25 percent of Alfonza s Army retirement benefits. Alfonza argued that the district court lacked jurisdiction to divide his military retirement benefits because he did not “consent” to the district court’s jurisdiction over his Army retirement benefits pursuant to 10 U.S.C. § 1408(c)(4) (C). The district court held it had jurisdiction in 1994 to divide Alfonza s military retirement benefits and awarded Joann’s request for an award of attorney fees pursuant to K.S.A. 2015 Supp. 23-2715. Alfonza timely appeals both of these decisions. We affirm.
Factual and Procedural Background
Joann filed a petition for divorce from Alfonza with the Shawnee District Court on October 8, 1993. Her prayer for relief requested an absolute divorce, child custody and support, spousal maintenance, and an equitable division of personal property and debts. Her petition did not specifically request a division of Al-fonza’s Army retirement or otherwise refer to it.
Alfonza filed a pro se answer on November 29, 1993. In his answer, Alfonza admitted to all the allegations of the petition except the allegation that the parties owned personal property. He requested the court to order joint custody of the parties’ two children, that Joann pay her own outstanding financial obligations, and that Joann’s request for maintenance be denied. Alfonza’s answer did not refer to his military retirement.
The parties were unable to resolve issues of the marriage, and the matter proceeded to trial on January 31, 1994. At trial, Joann was represented by counsel. Alfonza appeared pro se but had a man identified as “Moseley” with him to assist him. Moseley was a senior NCO from Fort Hood, had 20 years of military experience, and was present in case any question arose that dealt with military concerns. The district court determined that Moseley was a potential witness and requested he sit in the courtroom gallery and not at counsel table. In the end, Moseley did not further participate in the trial.
As trial began, Joanns counsel identified child support, maintenance, and military retirement as the major issues in the case. He requested the court award Joann a portion of Alfonzas military retirement based on the length of the marriage, the time during which the retirement benefits were earned, and foe unequal earning power of Joann. Joanns trial evidence included testimony and evidence regarding her claim for a division of Alfonzas military retirement as marital property. Joann claimed she should receive half of Alfonza s military retirement based on a marriage of 8.5 years out of 15 years of military service.
Alfonza did not state any objection to the inclusion of his military retirement as an issue during the trial. In fact, during his cross-examination of Joann, he asked if they had agreed 24 hours before trial that she would receive 20 percent of his retirement benefit, which she confirmed.
At foe conclusion of foe trial, foe trial judge stated that he needed to look at the federal law governing military retirement benefits before declaring it to be marital property. He also inquired how any division of retirement benefits would be paid.
In the divorce decree filed about 3 weeks after the trial, the district judge found “[t]he Court does have jurisdiction of the parties and subject matter of this action.” He made the following findings regarding Alfonzas military retirement benefits:
“[T]he Court finds that Husband’s army retirement benefits are marital property. Because of tire duration of the marriage, the relative earning capacity of the parties, and the overall relative financial condition of the parties, Wife is awarded 25% of Husband’s army retirement benefits, as her sole and separate property, free and clear of any right, title or interest of Husband. Husband shall act as trustee of Wife’s share of such benefits, and upon Husband’s receipt of such benefits, shall immediately pay over Wife’s share of such benefits to Wife. The provisions of this section and the percentage of Wife’s share shall apply whether Husband takes regular, medical, or early retirement from the military. Husband shall cooperate with Wife in the execution of such documents as may be necessary in order to carry out the provisions of this Decree and in obtaining direct payments from the Army to Wife of her portion of the benefits to the extent allowable by the Army.”
Alfonza did not seek modification, nor did he pursue an appeal of the decree of divorce.
Nineteen years later, in 2013, Joann filed a motion for “garnishment” of Alfonza s retirement benefits. She alleged that Alfonza was not wilhng to give her any of tire retirement benefits that the district court had awarded her. Alfonza responded by fifing a motion to set aside that portion of the divorce decree that dealt with his militaiy retirement benefits. He claimed for the first time that the district court lacked subject matter jurisdiction to divide his militaiy retirement. Subsequently, he supplemented his response to ask the court, in the event it did not sustain his objection to jurisdiction, to clarify the division of his military retirement benefit since he retired 18 years later than the decree contemplated, and he had received rank and pay increases during this time.
The district court held a hearing to consider the parties’ post-decree motions. Joann and her trial attorney from the divorce proceedings testified. Joann testified she discussed her claim for division of Alfonza’s militaiy retirement with him before the divorce hearing. She testified that Alfonza told her the night before trial that he would be willing to divide his retirement but he did not believe it was fair to give her 50 percent of it. Joann’s divorce trial attorney testified that military retirement was an issue of the divorce and was discussed with Alfonza prior to trial, although he could not remember details of the discussion or exactly when it occurred.
Alfonza did not testify at the hearing. Rather, he relied on argument that die district court did not have jurisdiction to divide his military retirement benefits in 1994. He argued Kansas was not his state of residence or domicile, and he did not consent to the “jurisdiction of the court.” Alternatively, Alfonza argued that if the court found he had consented to the jurisdiction of the Kansas district court, the court should “clarify” the order given the division of his retirement benefits was based on spending 15 years in the military as a staff sergeant, rather than 31 years as a sergeant major.
The district court took the matter under advisement. When it issued its written decision in the matter it held: (1) the district court had jurisdiction in 1994 to divide Alfonzas military retirement, (2) to make the result of the division fair, the division should be recalculated to reflect Alfonzas anticipated retirement date of 1995 and not his actual retirement date of 2013, and (3) that Joann was entitled to recover attorney fees in the amount of $6,092.
Jurisdiction to Divide Military Retirement Benefits
Alfonza argues the district court in 1994 did not have jurisdiction to divide his military retirement. He has argued at various points of the proceedings that foe district court lacked subject matter jurisdiction and that the court lacked personal jurisdiction because he did not expressly consent to the court’s jurisdiction over his military retirement benefits. He also argues that “if implicit consent is sufficient, the implicit consent must be specific to the issue of military retirement, when the underlying case involves multiple issues.”
Alfonza’s challenge to the district courts jurisdiction relies on interpretation of provisions of the USFSPA, and, thus, whether the district court had jurisdiction to divide Alfonzas military retirement presents an issue of statutory construction over which we have unlimited review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015). Also, whether jurisdiction exists is a question of law over which this court s scope of review is unlimited. Frazier v. Goudschaal, 296 Kan. 730, 743, 295 P.3d 542 (2013).
Before turning to our analysis of § 1408(c) of the USFSPA, a brief review of its genesis is in order. In 1981, the United States Supreme Court held that state courts were preempted from dividing military retirement benefits as marital property in divorce proceedings. McCarty v. McCarty, 453 U.S. 210, 232-36, 101 S. Ct. 2728, 69 L. Ed. 2d 589 (1981). Congress responded to McCarty by passing the USFSPA, 10 U.S.C. § 1408. Section 1408(c) is the portion of the Act that applies to this case. It provides in relevant part:
“(1)... [A] court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in- accordance with the law of the jwisdiction of such court.
“(4) A court may not treat the disposable retired pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of die court, or (C) his consent to the jurisdiction of the court.” (Emphasis added.)
Thus, under the USFSPA state courts may divide military retirement subject to the following requirements: (1) a state must provide for subject matter jurisdiction over the division of military retirement as property of the member and his or her spouse, and (2) the state court must have personal jurisdiction over the service member by reason of residence, domicile, or consent, rather than broader personal jurisdictional standards encompassed in state long-arm jurisdiction.
Kansas subject matter jurisdiction for division of military retirement benefits
Although Alfonzas argument on appeal focuses on whether he consented to the courts jurisdiction over his military retirement, we will briefly discuss the state law subject matter jurisdictional requirement of § 1408(c)(1).
In Grant v. Grant, 9 Kan. App. 2d 671, 676, 685 P.2d 327 (1984), this court held that military retirement pay had no present determinable value and could not be divided in a Kansas divorce. In response to Grant, the Kansas Legislature amended the Kansas Divorce Code in 1987 to provide that the “present value of any vested or unvested military retirement pay” is marital property subject to division in a Kansas divorce proceeding. See K.S.A. 23-201(b). Accordingly, since 1987 military retirement pay has been subject to division in Kansas divorce proceedings. This satisfies the requirement of § 1408(c)(1).
What constitutes “consent” under § 1408(c)(4)(C)?
There is a considerable body of caselaw from our sister states directed toward what constitutes consent under § 1408(c)(4)(C). When the district court made its decision in this case it indicated it had consulted an annotation article titled: Construction and Application of Federal Uniformed Services Former Spouse Protection Act in State Court Divorce Proceedings, 59 A.L.R.6th 433. This annotation is representative of the divergent views other courts have taken on the issue.
Some courts discuss the issue of consent in terms of whether § 1408(c)(4)(C) is a provision dealing with “subject matter jurisdiction” or “personal jurisdiction.” Other courts discuss whether § 1408(c)(4)(C) requires “express consent” or if “implied consent” is sufficient.
This court has previously determined that tire phrase “consent to tire jurisdiction of the court” in § 1408(c)(4)(C) refers to personal jurisdiction, not to subject matter jurisdiction. Fox v. Fox, 50 Kan. App. 2d 62, Syl. ¶ 3, 322 P.3d 400 (2014). Thus, Kansas law does not support Alfonzas objection to jurisdiction to the extent it relies on § 1408(c)(4)(C) being interpreted as a provision relating to subject matter jurisdiction.
Alfonza contends that tire USFSPA requires “express consent” and he did not expressly consent to tire courts jurisdiction by “filing an answer, appearing, and actively participating in the case.” Alternatively, he argues that if “implied consent” is sufficient, the consent “must be specific to the issue of military retirement, when the underlying case involves multiple issues.”
Joann argues that Alfonza consented to jurisdiction when he appeared and participated in the proceedings without objecting to the district court's jurisdiction over his military retirement.
There is substantial support for each of the party’s positions in the caselaw of our sister states. Alfonza relies on essentially two cases to support his contention that § 1408(c)(4)(C) requires “express consent.” We will discuss each of diese cases in some detail.
Wagner v. Wagner, 564 Pa. 448, 768 A.2d 1112 (2001), is a case that comes from the Supreme Court of Pennsylvania. Amy and Michael Wagner were married in Pennsylvania in 1982. Michael was in the military during the entire marriage. In 1992, the couple separated and Amy returned to live in Pennsylvania. Michael was stationed in New Mexico but resided in Alaska.
In December 1993, Amy filed a complaint for support. In June 1994, she filed a complaint in divorce. Michael was personally served in Alabama in September .1995. He did not file an answer to the complaint in divorce. Michael also did not respond to interrogatories relating to income and expenses.
In February 1996, an attorney entered an appearance for Michael and attended a hearing charging Michael with contempt for failing to answer the interrogatories. Eventually, Michael produced financial records and answered the interrogatories. Michael personally attended a support modification conference in the complaint for support proceeding.
In January 1998, Amy filed an inventory which listed Michaels Air Force retirement as marital property. Michael did not file an inventory. In February 1998, Amy requested bifurcation and a trial of the economic issues of the parties. The court scheduled a bifurcation hearing for May 8,1998.
On May 4, 1998, Michael filed objections to the Pennsylvania courts jurisdiction. On May 7, 1998, he filed a “Refusal to Accept Jurisdiction of Court to Determine the Disposable Retirement Pay of A Member of the Armed Forces.” Michael alleged he was not subject to the courts jurisdiction. He relied on 10 U.S.C. § 1408(c) (4)(A)-(C). He maintained that he did not reside and was not domiciled in Pennsylvania. He also claimed that “he did not consent to the trial courts jurisdiction for purposes of the [USFSPA] and objected to the courts jurisdiction over his retirement pay.” 564 Pa. at 453.
On May 14, 1998, the trial court sustained Michaels objection to jurisdiction. It concluded § 1408(c)(4) addresses subject matter jurisdiction. The court reviewed the record to determine whether Michael had consented to its jurisdiction over the retirement pay itself. The court found that no action Michael had taken in the case amounted to such consent.
An appeal was taken to the Superior Court. The Superior Court determined that § 1408(c)(4) addresses personal jurisdiction. It rejected Amy’s argument that Michaels objection to jurisdiction was untimely, concluding that the question of consent for purposes of the USFSPA “is not whether the military member waived his right to object to personal jurisdiction under state procedural rules, but whether he engaged in some form of affirmative conduct that showed his express or implied consent to the trial court s general in personam jurisdiction.” 564 Pa. at 454. The Superior Court found that Michael had consented “to the court’s personal jurisdiction through his participation in the divorce proceedings.” 564 Pa. at 454. That participation consisted of: accepting service of the Complaint in Divorce, having counsel enter an appearance on Michael’s behalf, appearing through counsel at a discovery dispute hearing, complying with the court’s discoveiy order, answering interrogatories, and attending a support modification conference.
An appeal was taken to the Pennsylvania Supreme Court. It concluded: “§ 1408(c)(4) refers to personal jurisdiction. For this, however, Congress chose not to use state law. Instead, it usurped state long-arm statutes and provided in § 1408(c)(4)(A)-(C) its own tests of personal jurisdiction that all state courts must apply.” 564 Pa. at 458.
The Pennsylvania Supreme Court proceeded to resolve whether Michael had consented to jurisdiction:
“Our next inquiiy lies at the heart of this case—to what does § 1408(c)(4) (C) require consent. Once the Superior Court characterized § 1408(c)(4)(C) as a personal jurisdiction provision, it assumed that the statute meant consent to the court’s personal jurisdiction in a divorce proceeding for all purposes. The court did not allow for the possibility that § 1408(c)(4)(C) is more limited, and refers to a military serviceperson’s consent to the court’s authority over him to distribute his pension.
“[W]e believe that Congress intended for the consent requirement in § 1408(c) (4)(C) to relate, like the rest of the [USFSPA], specifically to a military member’s pension.
“[W]e conclude that under § 1408(c)(4)(C), the Pennsylvania courts may not exercise the authority they are provided in the [USFSPA] to distribute a military member’s retirement pay in a divorce action, unless the member consents to the court’s jurisdiction over his person specifically to distribute the retirement pay.
“. . . It is evident from the record that none of the actions [Michael] took constituted consent as we have defined it. [Michael’s] acceptance of service, his counsel’s written general appearance, his participation in discovery matters unrelated to the pay, and his attendance at a separate support proceeding do not suffice. The only activity on [Michaels] part which concerned his pay was the filing of preliminary objections to tire trial courts jurisdiction over [Michael] under § 1408(c)(4) (C) to distribute his military pension.” Wagner, 564 Pa. at 458-63.
Flora v. Flora, 603 A.2d 723 (R.I. 1992), is a case that comes from the Supreme Court of Rhode Island. It deals with a post-divorce request for an amendment of the decree of divorce to make a division of military retirement.
Natalie and Elza Flora were divorced in 1983. At the time of their divorce McCarty prohibited the division of Elza’s military retirement.
In 1988, Natalie filed a complaint with the court “requesting that the court amend tire final judgment of divorce and distribute Elzas military pension.” Flora, 603 A.2d at 723. Natalie asserted that Ezra impliedly consented to the courts jurisdiction by not objecting when the original divorce was heard.
The Rhode Island Supreme Court reviewed cases from other jurisdictions supportive of Natalie’s implied consent argument and concluded:
“In this case the requirement of consent is not met since Elza in no way consented to tire jurisdiction of the Rhode Island Family Court. We do not find a sufficient basis, in the legislative history of the USFSPA or in the case law, to persuade us that implied consent can meet the consent requirements of § 1408(c)(4). Finally, Elza's actions do not provide a basis for a Rhode Island court to assert jurisdiction over him without raising due-process difficulties.” 603 A.2d at 725.
There are a number of cases from various states that are supportive of the contention that since Alfonza did not object to personal jurisdiction when the divorce was initially filed in 1994, he impliedly consented to the division of his military retirement.
The case of White v. White, 543 So. 2d 126 (La. App. 1989), illustrates this legal viewpoint. In White, the Louisiana Court of Appeals held that 10 § U.S.C. 1408(c)(4) does not require that the service member expressly consent to a trial court’s jurisdiction to divide his military retirement. The service member’s consent can be implied after he has made a general appearance, which waives all personal jurisdiction objections. 543 So. 2d at 128. Other courts that have followed this reasoning include the California Court of Appeals (in re Marriage of Jacobson, 161 Cal. App. 3d 465, 470, 207 Cal. Rptr. 512 [1984]); North Carolina Court of Appeals (Judkins v. Judkins, 113 N.C. App. 734, 737, 441 S.E. 2d 139 [1994]); the Texas Court of Appeals (Morris v. Morris, 894 S.W.2d 859, 862 [Tex. App. 1995]); the Washington Court of Appeals (Marriage of Parks, 48 Wash. App. 166, 170, 737 P.2d 1316 [1987]); the Wisconsin Court of Appeals (In re Marriage of Kildea v. Kildea, 143 Wis. 2d 108, 114, 420 N.W. 2d 391 [1988]); and the Virginia Court of Appeals (Lenhart v. Burgett, No. 0528-94-1, 1995 WL 129140, at *2 [Va. App. 1995] [unpublished opinion]).
We do not find fire terminology “express consent” and “implied consent” useful to our analysis of what constitutes consent under § 1408(c)(4)(C). The use of this terminology in other states’ decisions does not really capture the factors the courts are relying on in their analyses. We prefer to focus on a common factual pattern represented in most of the cases. In most cases, the court is hearing supplemental or ancillaiy proceedings to an earlier divorce proceeding. In these later proceedings the issue of division of military retirement is being raised for the first time and the service member objects to the division of his or her retirement.
Courts following the “implied consent” viewpoint hold that if objection is not made to personal jurisdiction in the first instance, the service member consents to jurisdiction for purposes of § 1408(c)(4)(C), notwithstanding that the issue of the division of the military retirement may not have been raised until years later in supplemental or ancillary proceedings.
Courts following the “express consent” viewpoint take the position that the service member does not consent to jurisdiction for purposes of § 1408(c)(4)(C) unless the service member fails to object when the issue of division of the retirement is first raised. For these courts a failure to object to jurisdiction at a time before the matter of division of retirement is raised does not constitute consent. They allow an objection to be raised to jurisdiction when the issue of division of retirement is first raised, even if earlier in the proceeding the party did not object to jurisdiction. They look to see what response the party makes after the issue of retirement is raised. If the party doesn’t object, there is consent. If the party does object, there is no consent.
Most of the cases deciding jurisdictional issues under the US-FSPA are fundamentally distinguishable from the present case. These cases involve circumstances where some time after the decree of divorce, a party comes back to court with a post-decree motion to modify the decree to make a division of militaiy retirement benefits. A determination of what constitutes consent under such circumstances is fundamentally different than what occurred here. Here the court determined jurisdiction and made the division of the retirement benefits during the initial divorce proceeding. Al-fonza made no objection to the court’s jurisdiction to do so at the time. He did not appeal the court’s determination at the time that it had jurisdiction. Instead, he first raised his objection to jurisdiction 19 years later when his former spouse was seeking to enforce the divorce decree’s order regarding division of Alfonza’s retirement benefits.
The Wagner and Flora cases, relied upon by Alfonza, are consistent with our determination in this case that Alfonza consented to jurisdiction. His failure to object when the action was first filed did not amount to consent because his retirement was not identified as an issue in the case. Although there is substantial uncontroverted evidence that Alfonza was aware that Joann was seeking to divide his retirement by their pretrial dealings, it is sufficient that at the trial of the case when the issue of the division of his retirement was put squarely before the district court for decision, he did not in any way raise objection to the court’s jurisdiction. The district court went on to specifically find that it had jurisdiction to divide his retirement. Alfonza did not object. He did not file an appeal seeking review of the court’s determination that it had jurisdiction. He let 19 years pass before he objected. And then did so only when Joann sought to enforce .the 1994 order. In addition, although he made objection to the district court’s jurisdiction, .he specifically sought relief from the court when he asked.the court to modify (he calls it “clarify”) the 1994 order to account for the fact he retired much later than contemplated in the 1994 proceeding.and had been promoted. He cannot object to both the court’s jurisdiction and ask for relief dependent on the court’s jurisdiction.
We conclude that Alfonzas failure to object to the district court s jurisdiction in 1994 when die issue of the division of his military retirement was taken up at the trial of the divorce action constitutes “consent to the jurisdiction of the court” under § 1408(c)(4)(C).
Award of Attorney Fees
Alfonzas second argument on appeal is that the district court erred when it awarded attorney fees to Joann. Alfonza argues that die award was not authorized because Joanns claim was for garnishment.
Joann argues that Alfonza is mischaracterizing her motion as a motion for garnishment. She points out that she received the award of attorney fees pursuant to a judgment she received to enforce her divorce decree against Alfonza. Although Joann titled her initial pro se motion as a “Motion to Pertession for Garnishment of Retirement,” the district court never considered this a garnishment and the substance of her argument was not a request for garnishment.
Appellate review of the award of attorney fees employs multiple standards of review. First, whether the district court had authority to award attorney fees is a question of law over which appellate review is unlimited. Rinehart v. Morton Buildings, Inc., 297 Kan. 926, 942, 305 P.3d 622 (2013). If the district court had authority to award attorney fees, its decision to do so is reviewed for an abuse of discretion. 297 Kan. at 942.
A court may not award attorney fees absent statutoiy authority or an agreement by the parties. Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 162, 298 P.3d 1120 (2013). Whether the district court had the authority to award Joann attorney fees turns on how her motion is classified.
The district court did not specify the authority it relied on when it made its award of attorney fees. However, a review of the record shows that Joann was not arguing for, and the district court was not considering, issuing a garnishment. The record reveals that Joann was asking the district court to enforce its order that she receive 25 percent of Alfonzas militaiy retirement. Joanns attorney never asked the court to garnish any of Alfonza’s income. Further, the district court never discussed garnishment or the particular statutes that govern it. Instead, the district court issued a judgment for Joann reaffirming its jurisdiction to do so and modifying the portion of Alfonza’s military retirement Joann is entitled to receive. Because tire actual issue argued before and decided by the district court was not a request for garnishment, the district courts authority to award attorney fees was proper pursuant to K.S.A. 2015 Supp. 23-2715.
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Per Curiam-.
Jeramie Berney was convicted of theft. On appeal, he challenges the district court’s failure to give the jury a limiting instruction after a detective testified that he had found Berney’s photo in the “mug system” when creating a lineup—suggesting to jurors that Berney had prior arrests or convictions. The district court’s failure to give a limiting instruction that evidence of where the detective got Berney’s photo could not be considered in deciding guilt in this case was clear error because no strong evidence was offered at trial. After carefully reviewing the full trial transcript, we conclude that a new trial must be ordered because the jury would have reached a different verdict had the instruction error not occurred.
Factual and Procedural Background
The theft charge stemmed from allegations that Berney took a tip jar from El Matador Lounge belonging to Jo Ann Standifer, the bartender, on January 28, 2013. Berney had prior theft convictions, so he was charged with a more serious crime than simple theft— theft after two or more prior convictions. See K.S.A. 2014 Supp. 21-5801(b)(6).
At trial, Berney and Standifer disagreed about the details surrounding Berney’s actions on January 28, 2013. Standifer testified that Berney came into the El Matador Lounge where she was working and began to play pool with her. After the pool games ended, Standifer claims she went- back behind the bar and heard a patron yell that someone had stolen her tip jar. Standifer said she then witnessed Berney run out the front door and away from the bar.
Bemey testified that he had seen Standifer outside of a QuikTrip that day and that she had invited him to El Matador for a few games of pool, free drinks, and crack cocaine. Berney claimed that when he had arrived at the bar, he gave Standifer $40 for crack cocaine. Berney testified that when Standifer reported to him she could no longer get the drugs, he and Standifer got into an argument about how she would repay him. Bemey claimed it had been her idea for him to take the tip jar and that Standifer had instructed him to do it when she was not looking so that her boss and the other customers would not ask her to explain.
The only other witness to testify was Detective Joseph Kennedy, the lead investigator on the case. Kennedy testified that Bemey s name, was fisted in the police report as a potential suspect. He said that after talking with Standifer, he had created a photo lineup that included Berney. When asked to describe how he created the photo lineup, Kennedy testified that he had searched a database of Sedgwick County mug shots for photos to use. Kennedy also specifically testified that he had found Bemey s photo throügh the mug-shot system and that when he had presented the photo lineup to Standifer, she had identified Berney immediately. Berney did not object to the admission of Kennedy’s testimony on these points or request that a limiting instruction be given to the juiy.
The parties separately agreed at trial—outside the jury’s presence—that the jury would not be told about Berney’s prior theft convictions. Thus, the jury would only determine whether he had committed the theft at the El Matador Lounge, not whether he also had two or more prior theft convictions. Even so, the parties agreed that he would be sentenced for theft with prior convictions. The jury found Bemey guilty of theft. Because he had two or more prior theft convictions, this offense became a Level 9 felony offense (while a first-time theft of the same money jar would have been a misdemeanor). See K.S.A. 2014 Supp. 21-5801(b)(4), (b)(6). Based on Bemey’s criminal-history score of “A,” the most serious category, the district court imposed a 15-month prison sentence. Bemey has appealed to this court.
Analysis
Bemey argues on appeal that the district court committed clear error when it failed to give a limiting instruction after the State introduced evidence that Berney had committed prior crimes. Berney argues that the State could not use this evidence—the fact that his photo was in the mug system—to prove that Bemey was more likely to commit a theft. Indeed, under K.S.A. 2014 Supp. 60-455(a), evidence that a person committed a crime on some other occasion is inadmissible to prove that the person has a criminal disposition and has committed another crime. If evidence of a prior crime is admitted for a different purpose, the trial court must give a limiting instruction informing die jury of the specific reason that evidence was admitted. State v. Gunby, 282 Kan. 39, 48, 144 P.3d 647 (2006).
Berney argues that the district court should have instructed the jury it could not consider the prior-crime evidence as evidence of his propensity to commit theft. Berney did not request such a limiting instruction at trial, but he claims that the district court’s failure to give one was clearly erroneous because his case “amounted to a credibility contest” between him and Standifer and because evidence of his prior crimes was a significant factor in his case.
The Kansas appellate courts have consistendy applied a “clearly erroneous” standard of review where, as here, a defendant neither requests a limiting instruction for evidence of prior crimes nor objects to its omission. State v. Vasquez, 287 Kan. 40, 51, 194 P.3d 563 (2008); Gunby, 282 Kan. at 58-59; State v. Pitchford, No. 101,904, 2010 WL 5139873, at *2 (Kan. App. 2010) (unpublished opinion) (citing State v. Magallanez, 290 Kan. 906, 918-19, 235 P.3d 460 [2010]). On appeal, we must first determine whether the jury instruction was legally and factually appropriate. State v. Brown, 300 Kan. 542, 555, 331 P.3d 781 (2014). If we find error, we then must decide whether we are firmly convinced the jury would have reached a different verdict had the error not occurred. The party claiming error has the burden of establishing prejudice. 300 Kan. at 555. We make this determination based on our independent review of the trial record, without any required deference to the district court. See State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012).
In cases where a law-enforcement officer referred to a mug shot during trial testimony, our Supreme Court has decided evidentiary and mistrial questions by determining that even if the reference to mug shots constituted an error, there was not sufficient prejudice to require reversal. State v. Trotter, 245 Kan. 657, 662, 783 P.2d 1271 (1989); State v. Childs, 198 Kan. 4, 11-12, 422 P.2d 898 (1967). More recently, in State v. Hill, No. 110,849, 2014 WL 7653862, at *3 (Kan. App. 2014) (unpublished opinion), our court looked at a district court’s failure to give a limiting instruction following a witness’ reference to a mug shot. This court assumed the trial court erred in not giving the limiting instruction but found that the defendant was not prejudiced by the error.
In this case, Kennedy referenced the mug-shot system five times during his testimony. First, when the prosecutor asked about the procedure for preparing the photo lineup, Kennedy testified that he had started by going to the Sedgwick Comity mug-shot site. Then, when asked about how he chooses photos for the lineup, Kennedy associated the mug-shot system with a person having been arrested—saying that “[w]ith [the] mug system, you’re not always getting a newer picture. You’re getting their last picture from the time they were arrested.” Finally, when Kennedy was asked a yes or no question about whether he had been able to locate Bemey’s photo from a combination of the mug-shot system and driver’s-license photos, Kennedy said yes but then added that he had specifically gotten it from the mug-shot system:
“Q: Now, using this data base of photographs and DMV records and such, were you able to locate a photo of Jeramie Berney?
“A: Yes, I did. Through the mug system.”
Together, these references at least suggest that Berney had previously been arrested.
In Hill, our court simply assumed that the district court erred by not giving a limiting instruction and then moved on to consider whether the defendant had been prejudiced. Here, we must first determine whether error occurred because we cannot so easily determine the prejudice issue in the State’s favor.
K.S.A. 2014 Supp. 60-455 provides that “evidence that a person committed a crime or civil wrong on a specified occasion ... is inadmissible to prove such person’s disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.” Thus, evidence that Berney had prior arrests couldn’t be used as evidence to prove that he had a disposition to steal. In Gunby, our Supreme Court held that when a distinct court admits evidence that a person committed a prior crime or civil wrong on a specified occasion to prove a material fact other than propensity, it “must give a limiting instruction informing the jury of the specific purpose for admission.” 282 Kan. 39, Syl. ¶ 3.
Evidence that Bemey had previously been arrested strongly suggested to the juiy that he had committed a crime on a prior occasion. While an arrest is most assuredly not the same as a conviction, it is at least some evidence that the defendant had committed a prior wrong on the occasion of his prior arrest. Even though there was no objection to the admission of the evidence, our Supreme Court has held that the Gunby requirement for the district court to give a limiting instruction still applies. State v. Breeden, 297 Kan. 567, 581, 304 P.3d 660 (2013). The district court erred in failing to give a limiting instruction in Bemey’s case. See Breeden, 297 Kan. at 583-84.
We now must review the full trial record to determine whether the error is reversible. To reverse the juiy’s verdict and order a new trial, we must be “firmly convinced the jury would have reached a different verdict had a limiting instruction been given.” 297 Kan. at 584.
In this case, three witnesses testified: Berney, Standifer, and Kennedy. Berney’s defense at trial was that he took the tip jar with Standifer’s permission. Standifer generally denied Berney’s stoxy. She testified that she had never agreed to secure drugs for him or told him to steal her tip jar. During Standifer’s testimony, the State played a video of the incident, and Standifer identified Bemey as the man in the video who grabbed her tip jar and left the bar. This video proves only that Berney was the man who took her tip jar, a fact that Berney doesn’t deny. It does not prove whether Berney and Standifer had an agreement about taking the jar.
Other Kansas appellate decisions suggest that a reference to a mug shot does not meet the clearly erroneous standard when there is strong evidence to support the jury’s verdict. See Trotter, 245 Kan. at 662; State v. Childs, 198 Kan. 4, 11-12, 422 P.2d 898 (1967); Hill, 2014 WL 7653862, at *3. For example, in Hill, although a detective’s testimony clearly suggested that the defendant had previously been arrested, this court found no prejudice because there was other strong evidence that the defendant had committed the crime: An undercover informant identified Hill as the person who committed the crime, and two video recordings of the crime allowed the juiy to compare the person who committed the crime with Hill.
. In Childs, our Supreme Court also held that a witness’ reference to mug shots did not result in. prejudicial error under the circumstances in that case. Childs, 198 Kan. at 12. Finally, in Trotter, a witness explained that he could “obtain mug shots in pictures from our . . . identification bureau” but gave no more testimony concerning the photo lineup. When deciding whether the detective’s reference warranted a mistrial, the Trotter court concluded that, while it did not condone such testimony, the reference to mug shots was brief and not sufficiently prejudicial to warrant a mistrial. Trotter, 245 Kan. at 662.
In this case, however, the juiy did not hear any strong evidence to suggest that Bemey had stolen the tip jar as opposed to taking it with permission. And, unlike the testimony in Trotter, Kennedy’s references to the mug system were not brief. Instead, the line of questioning allowed Detective Kennedy to testify that photos in the mug system are from the last time a person was arrested and that Berney’s photo, specifically, was pulled from that mug system. As Berney points out, the evidence at trial amounted to a “credibility contest” between his testimony and Standifer’s, and the surveillance video did nothing to disprove Berney’s defense. Without other strong evidence of Bemey’s guilt, Kennedy’s obvious suggestion that Berney had previously been arrested looms large. Berney s point that this was a credibility contest is well taken, and the jury had to conclude beyond a reasonable doubt that Standifer’s testimony was true to convict Berney. Based on our careful review of the full trial record, we are firmly convinced that the jury would have reached a different verdict had it been given tire limiting instruction tire district court was required to give it.
We recognize that this issue arose in the trial court in a bit of an odd manner. After Kennedy first mentioned the mug-shot system as a source of photographs, the prosecutor tried to eliminate any problem by getting Kennedy to agree that he also had other state-held photos available to him, such as drivei'’s-license records. The prosecutor then used a question seeking a yes or no response as to whether Kennedy had found a photo of Berney in the combination of mug shots and other photos. Had Kennedy followed the prosecutor’s lead, we might have had no problem—but he added immediately that Berney’s photo had come from the mugshot system.
At that point, the defense attorney could have objected—but the information was not responsive to tire question asked, so he had no reason to object until the extra information was volunteered. At that point, a defense attorney may conclude strategically that objecting—or requesting a limiting instruction—would further emphasize Bemey’s prior arrest. Even so, the district court had a duty under Gunby to give such an instruction. And in this case, the failure to do so was not harmless. We therefore must reverse the defendant’s conviction.
Before concluding our opinion, we must address one additional issue. Berney separately raised on appeal a claim that the district court should have appointed new counsel for him shortly before trial. Although we are ordering a new trial, we still will address the issue since, in the absence of some other order, we presume that the same defense counsel would remain assigned to represent Berney on remand.
Two weeks before trial, Berney filed a motion for new counsel, arguing that his appointed attorney had been ineffective and that they no longer communicated effectively. The district court held a hearing on the motion at which it asked questions of both Berney and liis appointed attorney. The court ultimately denied the motion.
Once a defendant seeking substitution for court-appointed counsel provides an articulated statement of attorney dissatisfaction, which may be demonstrated by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication, the district court must make an appropriate inquiry to ensure that the defendant’s Sixth Amendment right to counsel is protected. State v. Brown, 300 Kan. 565, 575, 331 P.3d 797 (2014). Failure to make that inquiry constitutes an abuse of discretion. 300 Kan. at 576.
The district court made the appropriate inquiry into Bemey’s pro se motion. The district court held a hearing on the motion and addressed each of Bemey’s concerns, as evidenced in 28 pages of the record on appeal.
In his motion for reappointment of counsel, Bemey alleged defense counsel was ineffective for (1) failing to discuss a defense strategy, (2) using coercive plea tactics, (3) failing to communicate, and (4) failing to have Bemey’s best interests in mind. At tire hearing on the motion, the district court inquired about each of these allegations and even asked the prosecutor about the visit log from the jail where Bemey was incarcerated to determine how often defense counsel had actually met with Bemey before trial.
Ultimately, Berney told the court that he did not feel his appointed counsel was representing him well because she was unable to get the charge amended to a misdemeanor. At the end of the hearing, the district court noted that Berney seemed disappointed and frustrated with the plea negotiations, but it found nothing to support a finding that counsel was ineffective; it then denied Bemey’s motion. We conclude that the district court made the appropriate inquiry into Bemey’s motion for reappointment' of counsel.
Bemey also contends on appeal that his appointed counsel “advocated against his motion” for new counsel; Bemey contends that this separately created a conflict of interest that required the appointment of new counsel. The Sixth Amendment guarantees an indigent criminal defendant the right to the assistance of counsel in his or her criminal defense, but a defendant cannot compel the district court to appoint the attorney of his or her choice. State v. Wells, 297 Kan. 741, 754, 305 P.3d 568 (2013). If the trial court has a reasonable basis for believing that appointed counsel can still effectively and fairly defend the client, the court may refuse to appoint new counsel. 297 Kan. at 754. To warrant substitute counsel, a defendant must show “justifiable dissatisfaction” with his or her appointed counsel. 297 Kan. at 754. Justifiable dissatisfaction may be demonstrated by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant. 297 Kan. at 754. Berney s argument on appeal seems to be limited to a conflict of interest.
Berney cites to State v. Prado, 299 Kan. 1251, 329 P.3d 473 (2014), to support his argument. In Prado, the district court denied the defendant’s motion to withdraw his plea after hearing arguments on it at the sentencing hearing. Prado expressed confusion regarding his plea agreement, and his defense counsel continued to interject and rebut his arguments. The Kansas Supreme Court reversed the district court’s denial, holding that the district court had been required to inquire about the conflict of interest between the defendant and his counsel. Prado, 299 Kan. at 1258-59. The Prado court found that the record demonstrated an actual conflict of interest when defense counsel advocated against the defendant’s position at the sentencing hearing. Prado, 299 Kan. at 1260.
But Berney’s case is more similar to State v. McGee, 280 Kan. 890, 126 P.3d 1110 (2006), than to Prado. In that case, McGee filed a motion for reappointment of counsel. In his motion, McGee stated that defense counsel had only met with him once and that they were having a “communications problem.” McGee further claimed that defense counsel had never discussed his “side of the case” with him. At die hearing on McGee’s motion, his defense counsel stated that the factual allegations in McGee’s motion were untrue. On appeal, McGee claimed that he had had an “obvious” conflict of interest with his appointed counsel because “his trial counsel contradicted McGee’s version of the facts.” The McGee court found that contradicting facts did not compromise any confidential information, concede McGee’s guilt, or establish that McGee’s counsel had any interest that limited his representation of McGee. McGee, 280 Kan. at 896. Ultimately, the McGee court held that the disputed facts indicated a disagreement between McGee and his trial counsel but that the disagreement did not rise to the level of a conflict of interest. McGee, 280 Kan. at 896.
Like McGee’s counsel, Bemey’s counsel contradicted Bemey’s versions of the facts of their relationship. Bemey claimed that he had never met with defense counsel for longer than 15 minutes, but his counsel reported that they had never met for fewer than 15 minutes. Bemey also claimed defense counsel had only met with him three times before trial. His counsel responded that she had met with him six times. The district court led the inquiry, and Bemey’s defense counsel simply responded to its questions. She never compromised any confidential information, conceded Berney’s guilt, or established that she had any interest that limited her representation of Bemey. Instead, she told the district court she was prepared for trial that afternoon.
In sum, tire district court had a reasonable basis for believing the relationship between Bemey and his defense counsel had not deteriorated to a point where she could no longer defend Berney. See State v. Wells, 297 Kan. 741, 754, 305 P.3d 568 (2013). The district court was justified in refusing to appoint new counsel and did not abuse its discretion in denying Bemey’s motion.
We reverse the district court’s judgment and remand for a new trial.
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The opinion of the court was delivered by
Rosen, J.:
Jordan Mullen filed a motion to suppress evidence resulting from a search of a house where he was staying in Shawnee, Kansas. The search was conducted pursuant to an anticipatoiy search warrant which purported to give law enforcement authority to search the house once a suspicious package — addressed to the house in Shawnee and likely containing illegal drugs — was successfully delivered to a resident of the house. The district court denied Mullen’s motion to suppress, concluding that the search warrant was supported by probable cause and that the event triggering the warrants execution occurred when Mullen, under the surveillance of law enforcement, retrieved the package from the front porch and brought it inside the home. The Court of Appeals agreed and affirmed the district court’s decision regarding the search warrant and its execution. See State v. Mullen, 51 Kan. App. 2d 514, 348 P.3d 619 (2015). This court granted Mullen’s petition for review challenging the Court of Appeals decision. We affirm.
Facts
On November 8,2011, Steve Hahne, a detective with the special investigations unit of the Shawnee Police Department, prepared an affidavit in support of a search warrant for a home located in Shawnee, Kansas. Within the affidavit, Hahne stated the following pertinent facts:
“1. 11/08/2011, the Affiant was contacted by Detective Shaun Miller of the Shawnee Police Departments Special Investigations Unit. Detective Miller was contacted on the telephone by United States Postal Inspector Justin Lewis. Postal Inspector Lewis reported while he was checking mail on today’s date at the Kansas City, Missouri processing and distribution center located at 1700 Cleveland Ave., he saw a box addressed to a name that was un-readable at 5807 Meadowsweet Lane, Shawnee, Kansas. Inspector Lewis checks mail randomly in order to intercept contraband being delivered via United States Postal Service. The box weighs 5 lbs. 12.6 ounces. The package originated from a U.S. Post Office located in Oakland, California. The return address on the package is also from Oakland, California. The Affiant knows through his training and experience that California is a source state of high grade marijuana as well as other illicit substances.
“2. A computer check revealed 5807 Meadowsweet Shawnee; Johnson County, Kansas is occupied by a David B. Grooms, w/m, 01/04/1967 and a Jacob R. Grooms, w/m, 06/05/1993.
“3. The parcel from the sort was placed with other unrelated parcels. Kansas City Missouri Police Officer Canine Handler Antonio Garcia directed K-9 Franz to the packages. Upon K-9 Franz coming into contact with the parcel, K-9 Franz sat alerting to the odor of narcotics in or about the parcel. The parcel was then taken into the custody of The Kansas City, Missouri Police Department, until a search warrant could be obtained.
“4. K-9 Franz is a 7 year old German shepherd and is trained and certified to alert to the odors of marijuana, cocaine, methamphetamine, and heroin. K-9 Franz has assisted in the seizure of 4,641.4 pounds of marijuana, 75.8 pounds of cocaine, 13 pounds of Methamphetamine, 23.3 pounds of Heroin, and $1,845,686.00 in U.S. currency.
“5. The Affiant knows that U.S. Postal Service Inspector Justin Lewis wifi attempt to deliver the package to a resident of 5807 Meadowsweet Lane, Shawnee, Johnson County, Kansas. Based on the successful controlled delivery to a resident, the Affiant is requesting permission to execute this warrant at 5807 Meadoiosweet Lane, Shaionee, Johnson County, Kansas. Should the delivery not be made, this warrant will not be executed.” (Emphasis added.)
Based on these facts, a district court judge signed a search warrant for 5807 Meadowsweet Lane, authorizing law enforcement to search the home for evidence of illegal drugs.
That same day, Hahne, along with other members of the special investigations unit, set up a surveillance of the home. At approximately 1 p.m., Inspector Lewis, dressed as a mail carrier and driving a postal vehicle, arrived at the residence with the package. Lewis knocked on the front door and announced, “Post Office,” but no one answered. After waiting about a minute, Lewis set the package down by the front door (the packages sender did not require a signature for delivery) and left in the postal vehicle. At 1:06 p.m., an individual, later identified as Mullen, came out of the house through the front door, retrieved the package, and went back inside.
At 1:17 p.m., law enforcement entered the home and found only Mullen inside the house. The package, still unopened, was lying on the kitchen countertop. Law enforcement opened the package and discovered marijuana inside (the Johnson County Crime lab later confirmed that the package contained 896.1 grams of marijuana). After being apprised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), Mullen told Hahne that he had recently begun staying at the house and had agreed to be there that day so he could bring the package inside the house once it arrived in the mail. Mullen was then supposed to watch over the package until one of three people (Alex Firth, Noah Schrader, or Jacob Grooms) arrived at the house to retrieve it. Mullen admitted to knowing that the package contained marijuana.
Mullen was ultimately charged with possession of marijuana with the intent to distribute. Mullen filed a motion to suppress tire marijuana as well as his statements to the police, arguing that the triggering event within the anticipatory search warrant “the successful controlled delivery to a resident” of the home) required Lewis to hand deliver the package to a resident of the home. Mullen contended that because Lewis simply left the package on the front porch, a controlled delivery never occurred and, consequent ly, law enforcement acted in violation of the search warrant when they entered the home after Mullen retrieved the package.
The State argued that a controlled delivery did occur because, once the postal inspector left the package on the front porch, the package remained under the constant surveillance of law enforcement until Mullen eventually brought the package inside the home. Thus, according to the State, law enforcement acted properly in executing the search warrant.
At the hearing on the motion to suppress, Detective Hahne stated that the warrants triggering event required that the package, while under the surveillance of law enforcement, be delivered to the home and that the package be taken inside the home by a resident. Though he had agreed with defense counsels statement at Mullen s preliminary hearing that a “controlled delivery” would require handing the package to a resident of the home, Hahne indicated at the suppression hearing that a controlled delivery was accomplished in this case when Mullen, under the law enforcement surveillance, retrieved the package from the front porch and brought it inside the home.
At the conclusion of the hearing, the district court reserved ruling on whether a controlled delivery occurred and asked for supplemental briefing on whether probable cause to search a home for illegal drugs is established merely because a resident of the home brings a package — mailed to the residence and likely containing illegal drugs — into the home. At a subsequent hearing, the district court ruled that the search warrant was supported by probable cause and that law enforcement effected a controlled delivery of the package, reasoning that Mullens retrieval of the package from the front porch while under police surveillance was sufficient to trigger execution of the search warrant.
Later, Mullen agreed to a bench trial on stipulated facts while reserving his right to appeal the district courts denial of his motion to suppress. The district found Mullen guilty, imposed an underlying prison sentence of 22 months and placed him on probation for 18 months.
On appeal, the Court of Appeals rejected Mullen’s arguments concerning the lack of probable cause supporting the search war rant or that a controlled delivery never occurred. The Court of Appeals, however, found that the record failed to show that the district court advised Mullen of his right to a jury trial before he waived that right by signing the stipulation of facts. As a result, the Court of Appeals reversed Mullen’s conviction and remanded the case for further proceedings. Mullen, 51 Kan. App. 2d at 526. Mullen filed a petition with this court seeking review of the Court of Appeals decision affirming the denial of his motion to suppress. The State filed a cross-petition seeking review of the Court of Appeals decision concluding that Mullen’s jury trial waiver was invalid. This court granted Mullen’s petition for review but denied the State’s cross-petition.
Analysis
Probable Cause for the Search Warrant
Mullen argues that the Court of Appeals erred in concluding that the search warrant was supported by probable cause. He contends that without evidence showing that occupants of a particular home are involved in drug activity, the mere fact that an occupant brings a package — addressed to the residence and likely containing illegal drugs — inside the home does not provide probable cause to search the home for illegal drugs.
Before the Court of Appeals, the State argued that Mullen should not be allowed to raise this argument on appeal because he failed to raise it before the district court. The State pointed out that Mullen’s sole argument in favor of suppression was that the event triggering the warrant’s execution, i.e., a controlled delivery of the package to a resident, never occurred. The Court of Appeals rejected the State’s contention and addressed the merits of Mullen’s probable cause argument, noting that the district court, in denying Mullen’s suppression motion, addressed whether probable cause supported the anticipatory search warrant. Mullen, 51 Kan. App. 2d at 519-20. We conclude that the Court of Appeals properly addressed tire issue; likewise, we reach the merits of the issue. See Huffmier v. Hamilton, 30 Kan. App. 2d 1163, 1167, 57 P.3d 819 (2002), rev. denied 275 Kan. 964 (2003) (when trial court chooses to address issue not raised by the parties, appellate court may address issue as well).
The Fourth Amendment to the United States Constitution guarantees the right to be free from “unreasonable searches and seizures” and that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” Section 15 of the Kansas Constitution Bill of Rights provides the same protections. State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010), cert. denied 563 U.S. 945 (2011). When evidence is illegally obtained, its suppression may be warranted under the exclusionary rule, which is a judicially created rule that safeguards against unconstitutional searches and seizures by suppressing illegally seized evidence as a deterrent to future violations. See United States v. Leon, 468 U.S. 897, 906, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); Daniel, 291 Kan. at 496.
A judge deciding whether an affidavit supplies probable cause for a search warrant considers the totality of the circumstances presented and malees “a practical, common-sense decision whether a crime has been or is being committed and whether there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Hicks, 282 Kan. 599, 613-14, 147 P.3d 1076 (2006). In Hicks, this court discussed an appellate courts role when reviewing a lower courts probable cause determination:
“When an affidavit in support of an application for search warrant is challenged, the task of the reviewing court is to ensure that the issuing magistrate had a substantial basis for concluding probable cause existed. This standard is inherently deferential. It does not demand that the reviewing court determine whether, as a matter of law, probable cause existed; rather, the standard translates to whether the affidavit provided a substantial basis for the magistrate’s determination that there is a fair probability that evidence will be found in the place to be searched. Because the reviewing court is able to evaluate the necessarily undisputed content of an affidavit as well as the issuing magistrate, the reviewing court may perform its own evaluation of the affidavit’s sufficiency under this deferential standard.” 282 Kan. 599, Syl. ¶ 2.
In United State v. Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006), the United States Supreme Court upheld the validity of anticipatory search warrants under the Fourth Amendment. The Court stated:
“An anticipatory warrant is ‘a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.’ [Citation omitted.] Most anticipatory warrants subject their execution to some condition precedent other than the mere passage of time — a so-called ‘triggering condition.’... If the government were to execute an anticipatory warrant before the triggering condition occurred, there would be no reason to believe the item described in the warrant could be found at tire searched location; by definition, the triggering condition which establishes probable cause has not yet been satisfied when the warrant is issued.” 547 U.S. at 94.
The Grubbs Court then concluded:
‘‘[F]or a conditioned anticipatory warrant to comply with tire Fourth Amendment’s requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place,’ [citation omitted] but also that there is probable cause to believe the triggering condition will occur. The supporting affidavit must provide tire magistrate with sufficient information to evaluate both aspects of the probable-cause determination. [Citation omitted.]” 547 U.S. at 96-97.
See also United States v. Rowland, 145 F.3d 1194, 1201 (10th Cir. 1998) (“As with all warrants, probable cause to support an anticipatory warrant ‘does not exist unless a sufficient nexus between the [contraband] and the place to be searched exists.’ [Citation omitted.]”).
In Grubbs, officers from the Postal Inspection Service arranged a controlled delivery of a videotape containing child pornography to the defendants residence. The defendant had ordered the videotape from a website operated by an undercover postal inspector. The affidavit made out in support of the search warrant for the defendants home stated:
“‘Execution of this search warrant will not occur unless and until the parcel has been received by a person(s) and has been physically taken into the residence. ... At that time, and not before, this search warrant will be executed by me and other United States Postal inspectors, with appropriate assistance from other law enforcement officers in accordance with this warrant’s command.’” 547 U.S. at 92.
In concluding that the search warrant was supported by probable cause, the Court stated:
“[T]he occurrence of the triggering condition — successful delivery of the videotape to [the defendant’s] residence — would plainly establish probable cause for the search. In addition, the affidavit established probable cause to believe the triggering condition would be satisfied. Although it is possible that [the defendant] could have refused delivery of the videotape he had ordered, that was unlikely. The Magistrate therefore ‘had a “substantial basis for... concluding]” that probable cause existed.’ [Citations omitted.]” 547 U.S. at 97.
Mullen argues that Grubbs stands for the proposition that in order for an anticipatory search warrant of a home to be supported by probable cause, there must be evidence indicating that an occupant of the home anticipates receiving a package in the mail containing contraband. In support of this contention, Mullen points to a single sentence in Grubbs’ statement of facts which states that tire defendant “purchased a videotape containing child pornography from a Web site operated by an undercover postal inspector.” 547 U.S. at 92.
Mullen places too much significance on this sentence. Nowhere in Grubbs’ legal analysis did the Court point to or rely on evidence showing the defendant s knowledge or intention of receiving child pornography through the mail as contributing to the probable cause necessary to issue an anticipatory search warrant of the defendants residence. Instead, the Court focused solely on whether the affidavit made in support of the search warrant established a fair probability (i.e., probable cause) that contraband or evidence of a crime would be found inside the defendants home once the triggering event occurred and whether there was a fair probability that the triggering event would occur. Because execution of the search warrant was contingent upon the government delivering the package — addressed to the defendant’s home and containing child pornography- — to the defendants residence, the Court concluded that both prongs of the probable cause determination were satisfied. 547 U.S. at 94-97.
An argument similar to the one Mullen raises here was addressed and rejected by the Tenth Circuit Court of Appeals in United States v. Hugoboom, 112 F.3d 1081 (10th Cir. 1997). There, tire court concluded that an anticipatory search warrant of a residence was supported by probable cause when tire affidavit made in support of the warrant merely alleged that a parcel containing contraband was mailed to the residence and that the warrant would not be ex ecuted until the parcel was delivered “to a responsible adult at the residence . . . who willingly ‘accept[s] delivery and signs a receipt therefor.” 112 F.3d at 1083. In reaching this holding, the Hugo-boom court rejected the defendants argument that the search warrant lacked probable cause because there was no evidence — besides the parcel being mailed to the residence — of drug activities taking place at the location. 112 F.3d at 1086.
The Tenth Circuit later fleshed out Hugoboom’s holding in Rowland. There, the court stated:
“As recognized in Hugoboom, when the warrant application indicates there will be a government-controlled delivery of contraband to the place to be searched, probable cause for a search is established and an anticipatory warrant may be issued, provided the warrant’s execution is conditioned on the contraband’s deliveiy to, or receipt at, the designated place. [Citations omitted.] In this context, the Hugoboom court indicated that when the warrant affidavit refers to a controlled delivery of contraband to the place designated for search, the nexus requirement of probable cause is satisfied and the affidavit need not provide additional independent evidence linking the place to be searched to criminal activity.” (Emphasis added.) Rowland, 145 F.3d at 1202-03.
See also United States v. Leidner, 99 F.3d 1423, 1427 (7th Cir. 1996) (“Several circuits agree that in order for an anticipatory warrant to satisfy the probable cause standard it must demonstrate that contraband is on a "sure course’ to the destination to be searched.”).
Similarly, in United States v. Lawson, 999 F.2d 985 (6th Cir. 1993), the Sixth Circuit concluded that a controlled deliveiy of a package- — mailed to the defendant’s residence and containing 6 ounces of cocaine — provided probable cause to issue an anticipatory search warrant of the residence. Notably, the court rejected the argument that additional evidence connecting the residence with drug activity was needed in order to guard against an occupant being “set up” by unknowingly receiving contraband in the mail. The court reasoned “that one does not send six ounces of cocaine through the mail to a specific address on a whim.” 999 F.2d at 988. See also United States v. Washington, 852 F.2d 803, 804 (4th Cir. 1988) (rejecting defendant’s argument that delivery of package addressed to his residence and containing 154 grams of heroin did not provide probable cause for an anticipatory search warrant of his home; though neither the defendant nor his roommates were named on the package as the intended recipient, court reasoned drat “[i]t is common knowledge that fictitious names are frequently used in illicit drug trafficking.”).
The following facts can he gleaned from the affidavit at issue here:
• The package had been flagged as suspicious by a postal inspector at the Kansas City, Missouri, processing and distribution center;
• The package had been mailed from a known narcotics source state;
• The package was addressed to an illegible name at a house located on Meadowsweet Lane in Shawnee;
• The package weighed 5 lbs. 12.6 oz;
• A K-9 unit trained and certified to alert to the odors of marijuana, cocaine, methamphetamine, and heroin alerted on the package; and
• A search of the house on Meadowsweet Lane would not occur until a controlled delivery of the package to a resident of tire house was accomplished.
These facts establish a fair probability that the package — addressed to the residence on Meadowsweet Lane — contained illegal drugs and, thus, constituted evidence of an illegal drug trafficking scheme. Cf. State v. Barker, 252 Kan. 949, 959-60, 850 P.2d 885 (1993) (A K-9 alert may supply probable cause necessary to search a vehicle as long as there is some evidence that K-9’s behavior reliably indicates the likely presence of a controlled substance.). Further, the search warrants triggering event — the controlled delivery of the package to a resident of the house — -would establish a fair probability that, upon execution of the search warrant, contraband or evidence of a crime would be found inside the house. Additionally, the affidavit established probable cause to believe that the triggering event — a controlled delivery to a resident of the house, effected by a postal inspector — would be satisfied. Thus, we conclude that the affidavit provided a substantial basis for the district court judge’s determination that probable cause supported a search warrant of the home.
The Controlled Delivery
Mullen argues that the search warrant was not validly executed because the triggering event — a successful controlled delivery to a resident of the home — did not occur. Mullen contends that in order to accomplish a controlled delivery, Inspector Lewis was required to hand deliver the package to a resident of the home.
Whether the undisputed facts of this case establish that a controlled delivery was accomplished appears to raise a question of law subject to unlimited review. See State v. James, 301 Kan. 898, 908, 349 P.3d 457 (2015) (“When the material facts are not in dispute, as here, we will exercise plenary review of the district court’s ruling on a motion to suppress evidence.”). Relevant to this inquiry are the guiding principles stated in Hicks for determining whether an affidavit establishes probable cause for a search warrant:
“When an affidavit in support of an application for search warrant is challenged, the task of the reviewing court is to ensure that the issuing magistrate had a substantial basis for concluding probable cause existed. This standard is inherently deferential. It does not demand that the reviewing court determine whether, as a matter of law, probable cause existed; rather, the standard translates to whether the affidavit provided a substantial basis for the magistrates determination that there is a fair probability that evidence will be found in the place to be searched. Because die reviewing court is able to evaluate the necessarily undisputed content of an affidavit as well as the issuing magistrate, the reviewing court may perform its own evaluation of the affidavits sufficiency under this deferential standard.” (Emphasis added.) 282 Kan. 599, Syl. ¶ 2.
To support his argument that a controlled delivery requires a hand-to-hand delivery, Mullen points to two Kansas cases: State v. Duhon, 33 Kan. App. 2d 859, 861, 109 P.3d 1282 (2005), and State v. Windes, 13 Kan. App. 2d 577, 578-79, 776 P.2d 477 (1989). While both cases describe, within their respective statement of facts, a controlled delivery occurring when a package was directly handed to each defendant, the State correctly responds that “neither case addressed whether a hand-to-hand delivery was the only method through which a controlled deliveiy could be completed.”
In determining how a controlled delivery is accomplished, the Court of Appeals panel in this case looked to tire United States Supreme Courts discussion of the subject in Illinois v. Andreas, 463 U.S. 765, 103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983). There, the Court stated:
“The lawful discovery by common carriers or customs officers of contraband in transit presents law enforcement authorities with an opportunity to identify and prosecute the person or persons responsible for the movement of the contraband. To accomplish this, the police, rather than simply seizing the contraband and destroying it, make a so-called controlled delivery of the container to its consignee, allowing tire container to continue its journey to the destination contemplated by the parties. The person dealing in the contraband can then be identified upon taking possession of and asserting dominion over tire container.
“The typical of a controlled delivery was well described by one court:
‘Controlled deliveries of contraband apparently serve a useful function in law enforcement. They most ordinarily occur when a carrier, usually an airline, unexpectedly discovers what seems to be contraband while inspecting luggage to leam the identity of its owner, or when the contraband falls out of a broken or damaged piece of luggage, or when the carrier exercises its inspection privilege because some suspicious circumstance has caused it concern that it may unwittingly be transporting contraband. Frequently, after such a discovery, law enforcement agents restore the contraband to its container, then close or reseal the container, and authorize the carrier to deliver the container to its owner. When the owner appears to take delivery he is arrested and the container with the contraband is seized and then searched a second time for the contraband known to be there.’ United States v. Bulgier, 618 F.2d 472, 476 (7th Cir. 1980), cert. denied 449 U.S. 843 (1980).” Andreas, 463 U.S. at 769-70.
At issue in Andreas was whether police needed to secure a search warrant to reopen a container — addressed to the defendant and, based on a lawful search, known to contain marijuana — that undercover law enforcement officers had delivered to the defendant s apartment. Officers later seized the container when they arrested the defendant upon seeing him leave his apartment with the container 30 to 45 minutes after the delivery. The container was taken to the police station and reopened without police first obtaining a search warrant. 463 U.S. at 767-68.
An Illinois appellate court affirmed the district courts suppression of the marijuana found inside the container. The court reasoned that the officers had failed to effect a “ ‘controlled delivery’ ” of the container which, in the court s view, required the officers to maintain “‘dominion and control’ over the container at all times.” 463 U.S. at 768. Because the container was out of the officers’ sight for 30 to 45 minutes while inside the defendant’s apartment, the officers could not be “ ‘absolutely sure’ ” that its contents had remained unchanged. Thus, the police were required to obtain a search warrant in order to reopen the container at the police station. 463 U.S. at 768.
The Supreme Court rejected the notion that police had to obtain a warrant in order to reopen the container. In reaching this conclusion, the Court reasoned that
“the rigors and contingencies inescapable in an investigation into illicit drug traffic often makes ‘perfect’ controlled deliveries and the ‘absolute certainty’ demanded by the Illinois court impossible to attain. Conducting such a surveillance undetected is likely to render it virtually impossible for police so perfectly to time their movements as to avoid detection and also be able to arrest the owner and reseize the container the instant he takes possession. Not infrequently, police may lose sight of the container they are trailing, as is the risk in tire pursuit of a car or vessel.” Andreas, 463 U.S. at 772.
The Court of Appeals acknowledged that while Andreas did not directly answer the question of what constitutes a controlled delivery, the case indicated
“that what makes [a] delivery a controlled delivery is that it was performed under the control and supervision of law enforcement officers. This interpretation is supported by numerous cases discussing a controlled delivery where hand-to-hand contact was not required. For example, in State v. Bierer, 49 Kan. App. 2d 403, 405-06, 308 P.3d 10, rev. denied 298 Kan. 1204 (2013), a postal inspector contacted the police about a suspicious package he believed contained drugs. After a K-9 unit alerted to the package for narcotics, a controlled delivery of the package was arranged. The postal inspector knocked on the door of tire house; however, when no one responded, he left the package at the front door. Later, Bierer arrived and took the package from the front door and placed it in his vehicle. The panel referred to this as a controlled delivery. Bierer, 49 Kan. App. 2d at 413; see Rowland, 145 F.3d at 1204 (delivery to a post office box was a controlled delivery); United States v. Fadipe, 43 F.3d 993, 994 (5th Cir. 1995) (delivery to tire mail box at an apartment complex was a controlled delivery).
“The dominant feature in the cases discussing controlled deliveries is that tire delivery is supervised by police officers, meaning police exercise control over when and how tire delivery occurs. Delivery of a controlled substance is defined in K.S.A. 2011 Supp. 65-4101(g) as ‘the actual, constructive or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.’ This appears to he what occurred in this case.” Mullen, 51 Kan. App. 2d at 522-23.
The panels reasoning that a “controlled delivery” does not require law enforcement to employ a specific method of conveyance (e.g., handing the package to a resident versus leaving the package on the porch or in the mailbox for a resident to pick up) is sound. The cases cited by the panel, along with the standard applicable for reviewing a search warrant, see Hicks, 282 Kan. 599, Syl. ¶ 2, indicate that as long as the means employed to deliver contraband to the site of an anticipatory search warrant was (1) performed under the control and supervision of law enforcement officers and (2) establishes a fair probability that the contraband will be found within the site upon execution of the warrant, then the delivery will be considered a “controlled deliveiy.”
Here, the affidavit indicated that Inspector Lewis would perform a controlled deliveiy of the package to a resident of the Mead-owsweet Lane house. Lewis, while under the surveillance of Shawnee police officers, approached the house to deliver the package. He knocked on the door and yelled, “Post Office,” but no one answered the door. After waiting a minute, Lewis left the package at the front door of the house as the package sender had authorized. While the package was under police surveillance, Mullen, a presumptive resident of the home, opened the front door, picked up the package, and took it inside the home.
These facts establish that a controlled delivery of the package to a resident of the home was accomplished. The method used to deliver the contraband (i.e., leaving the package at the front door and a resident, in turn, retrieving it) was performed under the control and supervision of law enforcement officers. Here, the method used to deliver the contraband established a fair probability that the contraband would be found inside the house. We conclude that the event triggering execution of the search warrant, i.e., a controlled delivery of the package to a resident of the home, occurred in this case and that the police acted appropriately when they entered the home pursuant to the search warrant.
The Court of Appeals correctly affirmed the district courts ruling denying Mullens motion to suppress. | [
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Denied.
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Leben, J.:
John and Anne, the adoptive parents of a baby girl, have appealed the $5,222.77 in attorney fees and expenses assessed against them to pay the attorney who represented the biological father whose parental rights were terminated. John and Anne argue that the attorney’s fee, based on a $150 hourly rate, should have been reduced to reflect an $80-per-hour rate—the same rate paid in Kansas to attorneys appointed to represent indigent criminal defendants.
But a specific statute, K.S.A. 22-4507(c), provides for that $80-per-hour rate in criminal cases. No statute sets the rate for other cases, and die awarding court determines that rate in its discretion after considering a set of potentially applicable factors. We find no abuse of discretion in the district court’s determination of the attorney fee here.
Factual and Procedural Background
With the approval of the birth mother, John and Anne sought to adopt a baby girl born in Wichita on December 31, 2012. The girl’s natural father, Lonnie, did not agree to relinquish his parental rights, but the district court terminated his parental rights and granted John and Anne’s adoption petition after a contested, 1-day trial. The court concluded that Lonnie had failed without reasonable cause to provide support for the birth mother during the 6-month period before the child’s birth, that he was unfit as a parent, that he had abandoned the mother after learning of the pregnancy, and that he had made no reasonable efforts to support the child after her birth.
Before trial, the court had found that Lonnie was partially indigent and had ordered that he pay $500 toward his attorney’s fees. Lonnie paid $100. Lonnie’s attorney, Eric Hartenstein, presented a total bill to the court of $5,622.77. That amount reflected Lonnie’s $100 payment; it also included expenses of $262.77 ($105 for serving court papers and $157.77 for a deposition transcript). The rest of the bill reflected Hartenstein’s time spent on the case at $150 per hour.
John and Anne argued in the district court that Hartenstein should be limited to $80 per hour based on the fee paid in criminal cases. The district court concluded that it had the discretion to award that or a higher amount, and it exercised its discretion by awarding the fees as requested:
“In making this award, I would reiterate that tire fees being requested here are not, in fact, for a criminal case, nor are they to be paid by taxpayers. This is a civil matter, which is filed due to [John and Anne’s] desire to strip [Lonnie] of his parental rights, to which he objects. And the request of $150 per hour is very much in keeping with what attorneys in Sedgwick County charge for work such as this. Many, in fact, charge more than that.
“Mr. Hartenstein has requested a fee of $5,360 (35.73 hours at $150 per hour), plus $262.77 in other costs, for a total of $5,622.77. I find that the hourly rate requested is in keeping with the practice in Sedgwick County, and that the hours spent on this matter are appropriate. I further find that Mr. Hartenstein is a capable and experienced attorney, who merits such a rate. The fee request of $5,360, plus other costs of $262.77, are hereby granted, and are assessed against [John and Anne], This amount is to be reduced by $400, which is part of the amount ($500) that [Lonnie] was ordered to pay for his own counsel.”
John and Anne have appealed the assessment of attorney fees to this court.
Analysis
John and Anne do not challenge the district court’s authority to award attorney fees and expenses. Nor do they challenge the amount of time Hartenstein spent or the amount of his out-of-pocket expenses. Their only argument on appeal is that the attorney’s hourly rate should have been limited to $80.
The amount of attorney fees to be awarded is within the sound discretion of the awarding court. Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 168-69, 298 P.3d 1120 (2013). On appeal, we review a district court’s fee award for abuse of discretion. 297 Kan. at 169, 171; Rinehart v. Morton Buildings, Inc., 297 Kan. 926, 942, 305 P.3d 622 (2013); Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009). A district court abuses its discretion only when it bases its decision on an error of fact or law or when its decision is so unreasonable that no reasonable person would agree with it. Snider, 297 Kan. at 169; In re M.H., 50 Kan. App. 2d 1162, 1175, 337 P.3d 711 (2014).
While the district court has considerable discretion in determining the amount of attorney fees, the Kansas Supreme Court has provided that it should consider the eight factors set out in Rule 1.5(a) of the Kansas Rules of Professional Conduct:
“(1) die time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
“(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
“(3) the fee customarily charged in the locality for similar legal services;
“(4) the amount involved and the results obtained;
“(5) the time limitations imposed by the client or by the circumstances;
“(6) the nature and length of the professional relationship with the client;
“(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
“(8) whether the fee is fixed or contingent.” 2014 Kan. Ct. R. Annot. 515.
In our case, tire district court did not explicitly mention Rule 1.5(a), but its comments reflected consideration of several of the applicable factors. The court noted that the fee was in line with customary charges by attorneys for similar services in Wichita, that the attorney’s abilities and experience merited such an hourly rate, and that the amount of time spent by the attorney was appropriate for the case.
Several of the other factors would be of little or no relevance: accepting a case that could be resolved in a 1-day trial held a few months after appointment would not preclude other legal work; neither the fee nor the case involved contingent fees; and although a termination-of-parental-rights case involves very important issues, this one did not present novel legal questions. Although the district court did not mention the factors set out in Rule 1.5(a), it appears that it gave appropriate consideration to those that applied.
The district court explicitly considered—and rejected—John and Anne’s request that the attorney’s fee be limited by an $80 hourly rate. On appeal, John and Anne cite both to the statute and to one of our past cases, In re Adoption of J.M.D., 41 Kan. App. 2d 157, 202 P.3d 27 (2009), rev'd in part 293 Kan. 153, 260 P.3d 1196 (2011). In that case, our court considered the assessment of attorney fees for services rendered on appeal, and like the case now before us, In re J.M.D. was a private adoption proceeding. Also like our case, the fees were being assessed against tíre adoptive parent for representation of the biological parent whose rights were being terminated. Our court reviewed a fee request based on a $200-per-hour rate and reduced it to $80 per hour, noting that the $80 rate was used for court-appointed attorneys representing indigent defendants. 41 Kan. App. 2d at 173-74.
The adoptive parents did not appeal our court’s attorney-fee order in In re J.M.D., see 293 Kan. at 174, but on appeal to the Kansas Supreme Court, the biological parent made a further request for the fees incurred on appeal to that court. It too chose to award fees at a rate of only $80 per hour for the work done in its court. 293 Kan. at 175.
But John and Anne read too much into the J.M.D. fee awards. In each case, the appellate court awarded the fees for services rendered before it. Accordingly, the appellate court was exercising its own discretion—guided by the Rule 1.5(a) factors—on the amount of fees to be awarded. The $80-per-hour rate for fees awarded in those cases does not set a limit on the fees that may be awarded in other cases. In fact, both the Kansas Supreme Court and our court have awarded fees at higher hourly rates in other cases. E.g., In re Estate of Strader, 301 Kan. 50, 63, 339 P.3d 769 (2014) (approving fees at $250-per-hour rate in probate matter); Snider v. American Family Ins. Co., 45 Kan. App. 2d 196, 199, 210-11, 244 P.3d 1281 (2011) (approving fees based on hourly rates of $150 and $225 per hour in insurance-coverage dispute), aff' d in relevant part, 297 Kan. at 175 (2013).
Nor does K.S.A. 22-4507(c), which expressly applies only to attorneys appointed to represent indigent criminal defendants, set a limit on fees in other types of cases. The fee award here is authorized by K.S.A. 59-2134(c), which has no language limiting the court’s discretion in determining the proper amount of the attorney fee.
We have also received a motion from Lonnie’s appellate attorney, Nancy Ogle, asking for an assessment of the fees and expenses incurred in this appeal. She asks for $3,645 in attorney fees (24.3 hours at $150 per hour) plus $208.02 in printing expenses for a total of $3,853.02. John and Anne have not filed a response to that motion. We assume, therefore, that they do not claim that Ogle spent an unreasonable number of hours on the appeal or object to the printing expenses.
We have reviewed her detailed billing invoice and considered the Rule 1.5(a) factors. We note that Ogle specifically addressed those factors in an affidavit. While the issues in this appeal are relatively straightforward, she had to prepare an appellate brief and review the district-court record. The rate charged is well within the range of rates charged for similar legal services, and she has extensive experience in the Kansas appellate courts. We find the amount of time spent and her hourly rate reasonable for the work performed. We therefore assess $3,853.02 in attorney fees and ex penses against John and Anne for the work performed on this appeal.
The district court’s judgment is affirmed. | [
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Granted.
Unpubhshed | [
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Pierron, J.:
The Kansas Department of Revenue (KDR) appeals the district court’s reversal of the administrative suspension of Alan Ray Butcher’s driver’s license. KDR argues the court erred in not finding reasonable grounds existed to believe that Butcher was operating a vehicle while under the influence of alcohol or drugs (DUI). We agree with KDR and reverse.
On May 13, 2003, Officer Lee Patterson was working the night shift when he saw Butcher driving a vehicle. Patterson knew that Butcher’s driver’s license been suspended because the last time he had contact with Butcher — within the previous 6 months — was for driving while suspended and there were previous DUI suspensions. Patterson called the license plate tag number into the police station to run the tag number as soon as he was able to see the tag number in his rear view mirror. Patterson also had a list of drivers with suspended drivers licenses prepared by someone in the police department that listed Butcher’s license as suspended. Patterson did not immediately turn his vehicle around, but after he called the tag number in, he turned his patrol car around and tried to find Butcher’s vehicle.
Patterson located Butcher s vehicle approximately 14 minutes later. When the vehicle stopped, Butcher was a passenger in the vehicle and Jesse French was driving. French told Patterson that he had been at home asleep when Butcher showed up at his house and asked that French take him to Winfield because he had been drinking. Patterson spoke with Butcher and at no time did Butcher say he had been driving. Butcher said that he and French had been driving around all night and that two girls from the VFW had dropped him off at French’s house.
Patterson testified that Butcher was abusive, combative, profane, and threatening during the stop. He appeared to be intoxicated to Patterson based on the odor of alcoholic beverages, slurred speech, bloodshot eyes, and difficulty in communicating. Butcher refused to submit to or complete field sobriety tests or a chemical test.
Based on his refusal to submit to testing, Butcher’s driver’s license was suspended from January 3, 2004, to January 3, 2007. At the time of the stop, Butcher’s lengthy driving record showed a DUI diversion in 1995, a DUI conviction in 1998, a DUI conviction in 2002, and his suspended license due to a failure to appear on a traffic ticket in 2002. Butcher appealed his administrative license suspension.
At the administrative hearing, Butcher raised the issues that Patterson did not have probable cause to make the stop because the information was stale and that there was no showing made that he had actually operated the vehicle. The administrative hearing officer upheld Butcher’s refusal suspension. He found that Patterson had testified he saw Butcher driving at a time when Butcher’s driving privileges were suspended and that Patterson believed there was probable cause to stop the vehicle.
Butcher appealed his suspension to the district court arguing that he had never operated the vehicle, the driver of the vehicle had not stated that Butcher had operated the vehicle, Patterson delayed in making the stop, no traffic infraction had been committed by either the actual driver or any other individual allegedly operating the vehicle at the time, and the information Patterson relied on as to Butcher’s drivers license being suspended was stale.
Patterson was the only witness to testify. Butcher did not take the stand in his own defense. The district court reversed Butcher’s suspension, stating:
“The following rules of law are that the plaintiff in this matter has the burden of proof. Also, as expressed in 38-8,1 mean in K.S.A. 8-1020, subsection (h)(1), if the officer certifies that a person refused the test, tire scope of hearing shall be limited to whether: subsection (A) a law enforcement officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial vehicle, as defined in K.S.A. 8-2,128 and amendments thereto, while having alcohol or other drugs in such persons system.
“In regard to this matter, tire court finds the controlling facts are that the officer observed the plaintiff driving a vehicle. He believed the plaintiff to be suspended. He did not stop the vehicle at that time. Approximately 14 minutes later, the vehicle, while being driven by another person, was stopped; and, subsequent contact was had with the plaintiff. I believe the controlling language is reflected in subsection (h)(1)(A). A law officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs. The officer made tire stop, ultimately, because he believed that the plaintiff was suspended, not because there was any reason to suspect that he was driving under the influence of alcohol or drugs; therefore the Court finds that the plaintiff has sustained its proof because there is no showing that the officer had reasonable grounds to believe he was operating or attempting to operate while under the influence. In contrast to that, if this were ... a commercial vehicle, the language is specific ‘or had been driving a commercial vehicle’; and none of those articulable situations apply to the plaintiff; and the Court grants die plaintiff relief requested.”
In response to comments by KDR that the officer does not have to stop the vehicle for DUI, the district court also stated:
“If he had stopped, if there was a stop when he was a driver and then diere was subsequent information, I agree with you, counsel; but when the stop that was made didn’t have anything to do with his driving at the tíme that the stop was made, I don’t think you can boodeg that back in to a DUI refusal situation that occurred when he was driving sometime previously under the language of the statute.”
KDR filed a motion to alter or amend the district court’s judgment, arguing that a vehicle stop or an approach of a person who is not then operating a motor vehicle which is not premised on suspicion of DUI can support a subsequent investigation of the person for DUI if such suspicion is developed during such stop or approach. In rejecting the KDR’s argument, the district judge stated:
“The Court believes that the facts as applied to the statutory provision are clear. ■That there was no reasonable ground to believe the person, in this instance, . . . Butcher was operating or attempting to operate a vehicle while under the influence of alcohol or drugs. At the time he was, the vehicle he was in was stopped, there was no indication. The alleged driving prior to that time, there was no indication. It’s different and can be distinguished from reckless driving where there is driving that’s occurring that’s deficient drat can be the basis for that especially when it’s combined with the subsequent smelling of the alcohol or drugs; and I do not believe that the facts are such that establish the law enforcement officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs or both; and the Court denies the motion and stands upon its original ruling.”
On appeal, KDR first argues the district court erred in finding that reasonable grounds did not exist to believe that Butcher was operating a vehicle while under the influence of alcohol or drugs.
K.S.A. 8-1020(h)(l) provides:
“If the officer certifies that the person refused the test, the scope of the hearing shall be limited to whether:
“(A) A law enforcement officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person’s system.”
Butcher had the burden of proof at the administrative hearing to prove by a preponderance of the evidence that the facts set out in the’s certification were false or insufficient and the suspension should be dismissed. See K.S.A. 8-1020(k). At the district court level, Butcher continued to have the burden to prove that the decision of the administrative hearing officer should be set aside. See K.S.A. 8-1020(q).
An appellate court applies a substantial competent evidence standard of review when reviewing a district court’s ruling in a driver’s license suspension case. Schoen v. Kansas Dept. of Revenue, 31 Kan. App. 2d 820, Syl. ¶ 1, 74 P.3d 588 (2003). In Kansas, a driver’s consent to have one or more tests performed to determine the presence of alcohol or drugs in the driver’s body is im plied by the driver’s decision to operate a vehicle upon public highways. K.S.A. 8-1001(a); State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). The purpose of the implied consent law is to coerce submission to chemical testing through tire threat of the statutory penalties of license suspension and the admission into evidence-in a DUI proceeding of the fact of a blood alcohol test refusal. Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, Syl. ¶ 1, 888 P.2d 832 (1995).
Patterson had reasonable grounds to believe that Butcher was driving while intoxicated, and the district court erred in finding to the contrary. In Sullivan v. Kansas Dept. of Revenue, 15 Kan. App. 2d 705, 707, 815 P.2d 566 (1991), this court held that “reasonable grounds” equates to “probable cause.” The Sullivan court further-explained:
“ ‘Probable cause’ to arrest refers to knowledge of facts and circumstances which would lead a prudent person to believe a suspect is committing or has committed an offense. [Citation omitted.] Existence of probable cause must be determined by consideration of the information and fair inferences therefrom, known to the officer at the time of the arrest. It is not necessary that the evidence relied upon establish guilt beyond a reasonable doubt. The evidence need not even prove that guilt is more probable than not. It is sufficient if the information leads a reasonable officer to believe that guilt is more than a possibility. [Citation omitted.]” 15 Kan. App. 2d at 707.
In this case, the district court was not presented with circumstantial evidence that Butcher was driving an automobile, or even witness testimony, for example, from an accident scene that Butcher was the driver. See Howard v. McNeill, 716 S.W.2d 912, 913-15 (Mo. App. 1986). Rather, the court had before it first-hand testimony from the police officer making the arrest that the officer had witnessed Butcher driving the vehicle.
In Furthmyer, the police found Furthmyer either asleep or passed out in the driver’s seat of his car at a stop sign with the engine running, the transmission in gear, the headlights on, and his foot on the brake. Furthmyer then stepped out of the car, answered some questions with slurred speech, and admitted he had been drinking. He,was arrested for DUI. Furthmyer agreed to submit to a breathalyzer but produced an insufficient amount of breath, which police construed as a refusal. After his license was suspended for a year, Furthmyer sought judicial review and argued to the district court that he was not operating or attempting to operate the vehicle and, therefore, was not subject to the implied consent law. The court affirmed the suspension of Furthmyer s driver s license, and he appealed. The Kansas Supreme Court concluded that the KDR need only establish that a law enforcement officer had reasonable grounds to believe a person was operating or attempting to operate a motor vehicle; it is not necessary to prove tire person actually operated or attempted to operate the vehicle. 256 Kan. at 836.
In State v. Mourning, 233 Kan. 678, 664 P.2d 857 (1983), the court considered whether reckless driving and driving under the influence of alcohol or drugs were the same offense for double jeopardy purposes. The Mourning court concluded that the two crimes required different evidence. In its analysis, the Mourning court addressed the State’s argument that “any time a person under the influence of alcohol or drugs operates a vehicle he does so in willful or wanton disregard for the safety of others.” 233 Kan. at 682. The Mourning court rejected this argument by pointing out that driving under the influence only requires driving when impaired, not swerving or driving recklessly. 233 Kan. at 682.
“One does not need to swerve all over the road or drive through another’s yard to be guilty of driving under the influence of alcohol or drugs. While a person under the influence of alcohol may actually drive in a straight line in the proper lane of traffic down the street, although incapable of safely operating the vehicle in accordance with traffic regulations that may be encountered, a person guilty of reckless driving is able to safely control his vehicle but, in willful or wanton disregard for the safety of others, does not do so. It is evident that a person guilty of driving under the influence of alcohol is not necessarily guilty of driving in reckless disregard for the safety of others.” 233 Kan. at 682.
Patterson saw Butcher driving a vehicle and knew Butcher had been arrested in December 2002 for driving while suspended and that Butcher’s name appeared on a police list of drivers with suspended licenses. At the trial in district court, Patterson presented evidence that Butcher’s license was in fact suspended on May 13, 2003. Within a 14-minute window, Patterson located the same ve hide and based on his knowledge had probable cause to stop the vehicle. Patterson had probable cause to believe that Butcher was driving on a suspended license and had authority to stop and question Butcher. See K.S.A. 12-4211(c) and (d) (authority to detain an individual suspected of violating an ordinance).
Upon making the stop, Patterson discovered that Butcher was no longer driving the vehicle, but sitting in the passenger seat. Patterson testified that just by talking to Butcher and Butcher’s actions, he felt Butcher was intoxicated. Considering the short 14-minute delay between witnessing Butcher driving the vehicle and observing Butcher’s intoxicated state, Patterson had reasonable grounds to believe that Butcher had operated a vehicle while under the influence of alcohol. The district court erred in holding to the contrary in vacating Butcher’s administrative license suspension.
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Denied.
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Rulon, C.J.:
The Kansas State University Foundation (Foundation) appeals the denial of its application for an exemption from ad valorem taxation under K.S.A. 2004 Supp. 79-201 Second by the Board of Tax Appeals (BOTA). We affirm.
The underlying facts of this case are undisputed, as the parties stipulated to the pertinent facts during the reconsideration hearing before BOTA.
The Foundation is organized as a not-for-profit, charitable organization, which is tax exempt under the Internal Revenue Code, 26 U.S.C. § 501(c)(3) (2000). The Foundations charitable purpose involves eliciting private financial contributions, which are applied to the support and extension of the educational, research, and public service goals of Kansas State University (KSU), which is a not-for-profit, charitable organization, as that term is applied in 26 U.S.C. § 501(c)(3).
At the request of KSU, the Foundation purchased a commercial building located at 5980 Corporate Drive, Manhattan, Kansas, taking a mortgage loan of $825,000. The monthly payments on the loan are $6,311.20. The Foundation planned to lease the property to KSU to house the university’s printing operations.
In February 2003, the Foundation and KSU signed a lease agreement. Under the terms of the lease, KSU would pay 12 monthly payments of $6,417.12, plus a special annual assessment of public utilities in the amount of $7,893.28, for a total annual lease payment of $84,898.72. The lease terminates on December 31, 2007, 5 years and 16 days after the lease commenced. While the lease agreement provided for a 6-month hold-over period, there is no lease provision for an automatic renewal of the lease at the expiration of the lease term.
The Foundation calculated the monthly lease payment by adding the Foundation’s administrative costs ($105.02) to the mortgage payments the Foundation was making every month for the purchase of the property ($6,311.20). Since the lease commenced, KSU has continued to use the property to house its printing departments, which do not provide commercial printing services. The parties acknowledge the use of the property by KSU is educational, within the meaning of K.S.A. 2004 Supp. 79-201 Second.
On April 2, 2003, the Foundation requested an exemption for ad valorem taxation for the property in question under K.S.A. 2004 Supp. 79-201 Second. When the exemption was denied, the Foundation filed a motion for reconsideration, seeking a hearing with BOTA. BOTA held a hearing, allowing the parties to present their respective positions in argument, after which BOTA affirmed its prior ruling denying the exemption in a 2-1 decision.
In the motions and arguments before BOTA, the Foundation declared its intent to renew the lease with KSU until the mortgage had been paid. Thereafter, the Foundation intended to extend the lease on purely a cost basis or to deed the building to KSU. Importantly, no provision within the lease requires either party to adhere to these stated intentions, however.
The sole issue in this appeal concerns the applicability of the exemption from ad valorem taxation provided in K.S.A. 2004 Supp. 79-201 Second. Generally, appellate review of tax decisions by the BOTA is limited by the Act for Judicial Review and Civil Enforcement of Agency Actions. See K.S.A. 77-621. However, as the parties have stipulated to the underlying facts, the only question presented to the BOTA and to this court, on review, involves statutory interpretation, which is a question of law. See Salina Airport Authority v. Board of Tax Appeals, 13 Kan. App. 2d 80, 81, 761 P.2d 1261, rev. denied 244 Kan. 738 (1988).
BOTA is a specialized agency created with the purpose of deciding taxation issues. Consequently, appellate courts generally give considerable weight and deference to BOTA’s decisions when the agency is acting within its sphere of expertise. Nevertheless, a question of law is subject to unlimited review, and this court is not bound to adopt BOTA’s interpretation of a tax statute, if it is deemed erroneous. See In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 749, 973 P.2d 176 (1999).
Kansas courts have adopted a number of principles related to the construction of a tax exemption: (1) when the legislative intent is in doubt, constitutional and statutory exemptions from taxation must be strictly construed in favor of taxation; (2) the burden of establishing the applicability of an exemption from taxation lies with the party claiming the exemption; (3) when property taxation is at issue, the issue is whether the property is exclusively used for an exempt purpose, unless the statute indicates a more permissive exemption; and (4) exclusive use means “the use made of the property sought to be exempted from taxation must be only, solely, and purely for the purposes stated, and without participation in any other use.” See In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. at 751.
But, the above principles are clearly secondary to the clear and unambiguous intent of the legislature which precludes “judicial blacksmithing” of properly promulgated legislation. To the extent possible, this court will effect the intent of the legislature as stated in the plain language of the statutory scheme enacted. In determining the legislature’s intent, courts must consider the entire act, not a single provision, in isolation. See In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. at 749.
The Foundation claims an exemption from ad valorem taxation under K.S.A. 2004 Supp. 79-201 Second, which provides in pertinent part:
"Second. All real property, and all tangible personal property, actually and regularly used exclusively for literary, educational, scientific, rebgious, benevolent or charitable purposes, including property used exclusively for such purposes by more than one agency or organization for one or more of such exempt purposes. . . . [T]his exemption shall not apply to such property, not actually used or occupied for the purposes set forth herein, nor to such property held or used as an investment even though the income or rentals received therefrom is used wholly for such literary, educational, scientific, rebgious, benevolent or charitable purposes. . . . This exemption shall not be deemed inapplicable to property which would otherwise be exempt pursuant to this paragraph because an agency or organization: (a) Is reimbursed for the provision of services accomplishing the purposes enumerated in this paragraph based upon the abibty to pay by the recipient of such services; or (b) is reimbursed for the actual expense of using such property for purposes enumerated in this paragraph; or (c) uses such property for a nonexempt purpose which is minimal in scope and insubstantial in nature if such use is incidental to the exempt purposes of this paragraph; or (d) charges a reasonable fee for admission to cultural or educational activities or permits the use of its property for such activities by a related agency or organization, if any such activity is in furtherance of the purposes of this paragraph.” (Emphasis added.)
(The omitted portions of this statutory exemption pertain to religious organizations, which are not applicable in this case. The exemption, as quoted above, is identical to the version of the statute which existed following the 1986 amendments. The language dealing with religious organizations was added by amendment in 1997. See L. 1986, ch. 369, sec. 1; L. 1997, ch. 122, sec. 2.).
Research has revealed no cases involving K.S.A. 79-201 Second, which are analogous to the facts presented here. As a result, the Foundation attempts to analogize its lease arrangement with KSU to the lease arrangement between the University of Kansas School of Medicine — Wichita Medical Practice Association (WMPA) and the Wichita Primary Care Center (Center) in In re Tax Appeal of Univ. of Kan. School of Medicine. WMPA, a tax-exempt organization, leased property to a legally separate, tax-exempt entity, the Center, which offers primary medical services to low-income and medically underserved patients. The lease agreement demanded monthly payments of $3,644 plus applicable tax assessments, which was well below the market rate. WMPA sought an exemption from ad valorem taxation under K.S.A. 79-201 Ninth, but BOTA denied the exemption based upon cases requiring exclusive exempt use of the property.
On appeal, our Supreme Court reversed BOTA’s decision, noting that K.S.A. 79-201 Ninth does not require “exclusive use” but actual use “ Tor the predominant purpose of providing humanitarian services/ ” 266 Kan. at 745 (quoting K.S.A. 79-201 Ninth). After reviewing the legislative history of ad valorem tax exemptions in Kansas, our Supreme Court noted the adoption of the standard in K.S.A. 79-201 Ninth represented a substantial shift in public policy. The legislature broadened the scope of the exemption by permitting an exemption if the dominant use of the property was a stated exempt use, rather than the exclusive use. At the same time, the legislature protected the State from abuse because of the broader exemption by requiring a party seeking an exemption to satisfy additional criteria. 266 Kan. at 757-69.
In holding that WMPA was entitled to an exemption, in spite of the profit WMPA retained as a result of the lease agreement with the Center, our Supreme Court specifically distinguished prior case law dealing with exclusive use of the property based upon the language of the particular statutory exemption sought, concluding:
“Moreover, the provisions of K.S.A. 79-201 Second exempting property actually and regularly used exclusively for literary, educational, scientific, religious, benevolent, or charitable purposes expressly prohibited tax exemption where ‘such property [was] held or used as an investment even though the income or rentals received therefrom is used wholly for such literary, educational, scientific, religious, benevolent or charitable purposes.’ The legislature did not include this prohibition in enacting K.S.A. 79-201 Ninth, which suggests that leasing under limited circumstances is permitted and unity of ownership is not a condition for exemption under K.S.A. 79-201 Ninth." 266 Kan. at 759.
The Foundation similarly argues that K.S.A. 2004 Supp. 79-201 Second provides that an organization does not lose a tax-exempt status by receiving reimbursement for expenses of using the property. See also K.S.A. 2004 Supp. 79-201 Second (b). However, a material distinction is drawn between reimbursement for the expenses of using the property and the expenses of acquiring the property. If an organization is completely reimbursed for the acquisition of a material asset, such organization profits in the ownership of the asset at no cost. In light of the clear prohibition against using the property for investment purposes and the duty to construe tax exemptions strictly in favor of taxation, the Foundation’s argument, in this regard, is unpersuasive. See K.S.A. 2004 Supp. 79-201 Second; In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. at 755.
More persuasive is the Foundation’s argument that the legislature clearly permitted simultaneous use of the subject property and established that incidental, nonexempt use of the real property does not cause an entity to lose its tax exemption.
“This exemption shall not be deemed inapplicable to property which would otherwise be exempt pursuant to this paragraph because an agency or organization: . . . (c) uses such property for a nonexempt purpose which is minimal in scope and insubstantial in nature if such use is incidental to the exempt purposes of this paragraph.” K.S.A. 2004 Supp. 79-201 Second (c).
Because the statutory provisions under scrutiny specifically prohibits holding the property for investment purposes, such use of the property may not be deemed “minimal in scope and insub stantial in nature,” within the meaning of K.S.A. 2004 Supp. 79-201 Second. Typically, where the owner of property subject to an exemption dispute ieases the property to another entity, the owner s use of the property is deemed financially motivated and, thus, an investment. See Board of Wyandotte County Comm’rs v. Kansas Ave. Properties, 246 Kan. 161, 176-77, 786 P.2d 1141 (1990) (holding that tax exemption does not apply to leased property even when property is being used for exempt purposes); In re Board of Johnson County Comm’rs, 225 Kan. 517, 522-23, 592 P.2d 875 (1979) (holding that property owned by a nontax-exempt entity and leased for profit to a qualifying tax-exempt entity does not qualify for exemption).
Whether the organizations using the property possess a tax-exempt character is relatively immaterial because it is the use of the property, not the character of the owner, which determines the applicability of an ad valorem tax exemption. See In re Board of Johnson County Comm’rs, 225 Kan. at 520; see also Topeka Cemetery Ass’n v. Schnellbacher, 218 Kan. 39, 42, 542 P.2d 278 (1975) (“[Wjhere public property is not involved, a tax exemption must be based upon the use of the property and not on the basis of ownership alone.”).
However, the nature of the lease agreement before us distinguishes such lease from the one considered in Board of Wyandotte County Comm’rs and In re Board of Johnson County Comm’rs. Under the facts of In re Board of Johnson County Comm’rs, the lessee was a tax-exempt organization using the leased property for an exempt purpose under the statute, but, because the owner of the property was simultaneously using the property for profit, the property was being used for both an exempt purpose and nonexempt purpose. Consequently, the property did not qualify for an “exclusive use” ad valorem tax exemption. 225 Kan. at 522-23.
In Board of Wyandotte County Comm’rs, the parties presented the court with a converse factual situation. A tax-exempt entity owned property, which was leased to a nonexempt entity for a nonexempt purpose. The property owner then applied the proceeds from the lease to the owner s function as a tax-exempt organization. Again, our Supreme Court concluded the use of the property was financial and not exempt, even if die proceeds of the lease were applied to purposes which would qualify for tax exemption. 246 Kan. at 176-77.
In contrast, this case represents two tax-exempt entities, one of which is clearly using the property for an exempt educational purpose and the other is arguably receiving no profit from the lease terms, because the lease payments do not provide any income above the mortgage payment, administrative costs, and special utilities assessment. But, although the facts of the case are distinguishable, the analysis in Board of Wyandotte County Comm’rs is persuasive.
Here, the lease payments provide the Foundation with the means to pay for the ownership interest in this real property. As the mortgage is paid and the building presumably appreciates in value, the ownership interest becomes a financial asset. If KSU breaches the lease or if the parties do not renew the lease at the end of the lease term, the Foundation can sell the building, pay off the remaining mortgage, and keep the equity obtained through KSU’s lease payments. Under this lease arrangement, we conclude the Foundation’s only use of the property is a financial one.
The Foundation claims an intent to deed the property to KSU or to lease the property to KSU at cost after the mortgage is paid, but the contract does not require the Foundation to deed the property to KSU. Additionally, any agreement to continue leasing the property to KSU at cost would still provide the Foundation with ownership of a financial asset for nothing. We conclude the Foundation’s use of the property currently is an investment, which is specifically prohibited by K.S.A. 2004 Supp. 79-201 Second. This investment use of the property cannot be deemed merely incidental and inconsequential to the actual use of the property by KSU for educational purposes. There are two separate anti distinct uses of the property in question: KSU is using the property in an exempt manner; the Foundation is using the property as a financial asset.
The facts presented in this case present a close question, which the legislature arguably should revisit. However, because this court’s construction of an exemption must be narrow in favor of taxation, absent clear legislative intent to the contrary, and because the decisions of BOTA are entitled to deference by the appellate courts, this court cannot conclude the Foundation has carried its burden of persuading this court of the applicability of an ad valorem tax exemption under K.S.A. 2004 Supp. 79-201 Second. See In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. at 751.
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Denied.
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The opinion of the court was delivered by
Nuss, C.J.:
Duane Wahl appeals from a Court of Appeals decision affirming the district court’s summary denial of his motion for postconviction relief under K.S.A. 60-1507. The lower courts relied on different rationales, but both concluded that procedural bars required summary denial.
We hold the lower courts both relied on erroneous rationales in summarily denying Walil’s 60-1507 motion. Accordingly, we reverse and remand this matter to the district court for further consideration of his claim.
Facts and Procedural History
In 2009, the State charged Wahl with first-degree murder. The district court initially appointed Steve Stoclcard as Wahl’s defense counsel. But in early 2010-, Stockard withdrew, and the district court appointed Jennifer Brunetti to represent Wahl.
After extensive pretrial proceedings unrelated to this appeal, Wahl pled guilty to one count of first-degree murder. As part of his plea, he admitted the factual basis for the first-degree murder charge. Wahl also joined the State in recommending a hard 25 life sentence, and he expressly waived his right to a direct appeal. As for collateral proceedings, Wahl agreed to the following provision in the plea agreement:
“Collateral Attack (K.S.A. 60-1507): I understand and have been advised of the remedies that may be available under the provisions of K.S.A. 60-1507, commonly known as post-conviction, post-appeal collateral attack on the validity of a conviction. I understand and agree I am waiving my right to file any proceeding under the provisions of K.S.A. 60-1507 (as well as K.S.A. 60-1501—known as habeas corpus) and such waiver is and has been a part of the consideration for the favorable terms of this plea agreement. I do further understand that in some limited circumstances, such as a claim of ineffective assistance of counsel, a 60-1507 proceeding may be commenced, but must be commenced ivithin one year of final judgment.” (Emphasis added.)
In exchange for Wahl’s guilty plea, the State agreed not to seek a hard 50 life sentence. It also agreed not to file additional charges arising out of the murder and to dismiss pending criminal charges against Wahl in three unrelated cases.
The district court accepted Wahl’s guilty plea. On December 9, 2010, it sentenced him to a hard 25 life sentence. Wahl did not file a direct appeal.
A little over a year later, on January 5, 2012, the clerk of the district court received several documents from Wahl. Their certificates of service reveal Wahl signed them “on or about” December 20, 2011. The first document was a pro se 60-1507 motion, which contains only a single allegation:
“The court was without jurisdiction to impose sentence upon the grounds that defense counsel was prejudice [sic] and deficient performance [sic] throughout all of die proceedings, that but for defense counsel’s errors, there is a reasonable probability that the outcome of the proceeding would have been different; that defense counsel’s representation and performance fell below the constitutional requirements garanteed [sic] by Strictland [sic] v. Washington, 466 U.S. 668; 80 L. Ed. 2d 674 (1984); Chamberlain v. State, 236 Kan. 650; 694 P.2d 468 (1985), and tlie Sixth Amendment and Fourteenth Amendment to the United States Constitution; that Duane Wald is actually innocent of murder in the first degree with premeditation, K.S.A. 21-3401.”
Wahl’s second document received that day was a notice of intent informing the court that “at a later date” Wahl intended to supplement his 60-1507 motion with a pro se memorandum containing facts and legal authorities to support his allegation. The third document received that day was a motion for an evidentiary hearing and oral argument. That document contained some legal citations, but like the accompanying 60-1507 motion, it contained no facts or allegations specific to Wahl’s case.
The district court responded with a letter dated January 6, 2012—the day after the clerk received the three documents from Wahl. The letter ordered him to file his supporting memorandum within 30 days: “The Court is in receipt of your recently filed petition pursuant to K.S.A. 60-1507. Be advised that you are ordered to file your supporting memorandum of law within 30 days of receipt of this letter. No action will be taken on your petition until your brief is filed.” Wahl mailed his supporting memorandum and appended affidavit of his sister on January 17, which the district court received on January 26.
Wahl’s January 26 supporting memorandum generally argues his representation before trial and during plea negotiations was unconstitutionally ineffective. He first alleges attorney Stockard failed to relay a plea offer from the State that would have permitted Wahl to plead guilty to second-degree murder in exchange for telling the State where he hid the victim’s body. He also claims attorney Bru-netti told him he should plead guilty to avoid the possibility of a hard 50 life sentence or the death penalty. Wahl’s sister’s affidavit corroborates his allegations about Brunetti.
After receiving the January 26 supporting memorandum, the district court summarily denied Wahl’s 60-1507 motion. It first concluded Wahl had waived the right to file a collateral attack as pait of his plea agreement. In the alternative, the court held Walrl’s motion was untimely per thel-year time limitation contained in K.S.A. 60-1507(f)(1). And it specifically ruled Wahl failed to dem onstrate the manifest injustice required to avoid application of this time limit. See K.S.A. 60-1507(f)(2).
Although a panel of the Court of Appeals ultimately affirmed, it first rejected the district court’s rationale. Wahl v. State, No. 107,934, 2013 WL 4564823 (Kan. App. 2013) (unpublished opinion). Specifically, the panel held the court erred , by concluding Wahl had waived his right to file a 60-1507 motion based on the purported ineffective assistance of counsel. It ruled the plea agreement makes an explicit exception for that particular claim.
The panel also held Walil’s initial 60-1507 motion was not time-barred by K.S.A. 60-1507(f)(l). It noted the district court reached this conclusion because that court mistakenly thought the 1-year time limitation started running 10 days after it imposed Wahl’s sentence. 2013 WL 4564823, at *3.
But the panel then concluded Wahl’s supporting memorandum is time-barred by K.S.A. 60-1507(f)(l). More specifically, the panel concluded the supporting memorandum should be treated as an attempted 60-1507 amendment. And as an amendment, the panel held it did not relate back to his initial, timely-filed 60-1507 motion under Supreme Court Rule 183(e) (2014 Kan. Ct. R. Annot. 285) and Pabst v. State, 287 Kan. 1, 25, 192 P.3d 630 (2008). So the panel ultimately affirmed the district court’s summary denial because Wahl’s initial 60-1507 motion, without benefit of the barred amendment, contained only conclusions and no specific facts or evidence to support his claims for relief. 2013 WL 4564823, at *4.
We granted Wahl’s petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
More facts will be added as necessary to the analysis.
Analysis
Issue: The Court of Appeals and district court relied on erroneous rationales in summarily denying Wahl’s 60-1507 motion.
. Wahl generally contends he is entitled to an evidentiaiy hearing on his ineffective assistance of counsel claim, the details- of which are included only in his subsequent supporting memorandum and attendant affidavit of his sister. The State responds that summary dismissal is appropriate because Wahl expressly waived his right to pursue postconviction relief and his 60-1507 motion was untimely and inadequate.
Standard of review
When reviewing the summary denial of a 60-1507 motion, we exercise de novo review. Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 (2010) (quoting Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 [2009]).
Discussion
Our de novo review of the lower courts’ summary denials requires us to consider each of their varying rationales. We address each rationale in turn.
a. The district court erred by concluding Wahl waived his right to file a 60-1507 motion alleging ineffective assistance of counsel.
The State first argues the district court correctly held Wahl waived his right to file a motion for postconviction relief under K.S.A. 60-1507. The Court of Appeals panel rejected this conclusion, noting Wahl’s plea agreement makes a specific waiver exception for ineffective assistance of counsel claims. We agree with die panel.
Wahl’s plea agreement puiports to generally prohibit collateral attacks on his conviction or sentence. But it makes an exception for ineffective assistance of counsel claims. Specifically, the waiver provision provides “that in some limited circumstances, such as a claim of ineffective assistance of counsel, a 60-1507 proceeding may be commenced.” As permitted by the plea agreement, Wahl seeks postconviction relief based only on his counsel’s purported ineffectiveness. So the district court erred by summarily denying Wahl’s 60-1507 motion based on his purported waiver.
b. The district court erred by concluding Wahl failed to file his 60-1507 motion within the 1-year time limitation in K.S.A. 60-1507(f)(1).
The State next contends the district court’s summary denial was appropriate because Wald’s initial 60-1507 motion was untimely. The panel rejected this conclusion because it was based on the lower court’s erroneous belief that the 1-year time limitation started running 10 days after imposition of sentence.
K.S.A. 60-1507(f)(l) provides that a movant must file his or her 60-1507 motion within 1 year of the termination of appellate jurisdiction. Wahl had 14 days to file a notice of appeal after the district court sentenced him on December 9, 2010. See K.S.A. 2010 Supp. 22-3608(c) (“For crimes committed on or after July 1, 1993, the defendant shall have 14 days after the judgment of the district court to appeal.”). So Wahl had until December 23, 2010, to file a direct appeal, but he did not do so. Accordingly, the 1-year time limitation in K.S.A. 60-1507(f)(l) started running on December 23, 2010, and Wahl had until December 23, 2011, to file a 60-1507 motion.
Wahl mailed his initial 60-1507 motion on or about December 20, 2011—3 days before his deadline. The State quarrels with the precision of “on or about” as used in his certificates of service, arguing that Wahl is not entitled to rely on December 20 as his filing date because it is ambiguous. But the panel accepted the December 20 filing date and held his motion satisfied the time limitation in K.S.A. 60-1507(f)(l) under the prison mailbox rule. Wahl, 2013 WL 4564834, at *3. This rule deems a prisoner’s pro se documents “filed” when he or she submits them to prison authorities for mailing. See Wilson v. State, 40 Kan. App. 2d 170, 175, 192 P.3d 1121 (2008) (applying prison mailbox rule to 60-1507 motion); see also Houston v. Lack, 487 U.S. 266, 274-76, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988) (applying prison mailbox rule to habeas petition under 28 U.S.C. § 2254 [2012]).
We agree. Under this rule, we consider Wahl’s 60-1507 motion to be filed as of December 20, 2011, especially when the State has presented no evidence to controvert the validity of this date contained in Wahl’s certificate of service. Based on this filing date, Wahl’s motion was timely under K.S.A. 60-1507(f)(l). Accordingly, die district court erred by summarily denying Wahl’s motion as untimely.
c. The panel erred hy affirming the district court’s summary dismissal after treating the supporting memorandum as an untimely amendment.
Finally, Wahl contends the panel erred in affirming tire district court’s summary denial by concluding that court was barred from considering his supporting memorandum, which resulted in an inadequate motion. But the State responds tire panel was correct to treat the supporting memorandum as an untimely amendment under Pabst and Supreme Court Rule 183(e). We agree with Wahl.
When the district court received Wahl’s initial 60-1507 motion and accompanying notice of intent to supplement the motion “at a later date,” it granted Wahl leave to file his supporting memorandum within 30 days. By the court not denying the initial motion outright as inadequate, its order of extension necessarily implied the court would rule on the motion’s merits only after considering a timely-filed memorandum. Despite Wahl’s compliance with the court’s order, the court then changed course and dismissed his motion.
The panel validated this approach by analogizing Wahl’s supporting memorandum to an attempted amendment of the motion. The panel then concluded it was untimely as an amendment under Pabst-—a case where we held an attempted amendment to a 60-1507 motion under K.S.A. 60-215 relates back to the initial timely filing of the motion only if it asserts additional claims of the same time and type as the original claims. 287 Kan. at 23-25.
But Wahl’s supporting memorandum was not an attempted amendment to his initial motion. So Pabst’s relation-back test for timeliness is off target. Rather, the supporting memorandum essentially is supplying the entire legal argument section missing from Wahl's initial 60-1507 motion. And because the district court explicitly granted Wahl leave to file drat supporting memorandum within 30 days, the panel erred by concluding that the district court could not have considered that document when analyzing Wahl’s claim. On the contrary, the district court should have considered the supporting memorandum—whose filing the court allowed— before it disposed of Wahl’s motion. Accordingly, the panel erred by affirming the district court’s summary denial based on the panel’s conclusion that Wahl's supporting memorandum was untimely.
The State makes no claim, and the evidence certainly would not support, that Wahl filed his initial 60-1507 motion and attendant notice of intent in an attempt to game tire 1-year time limitation in K.S.A. 60-1507(f)(l). We would disapprove any attempts by prisoners to avoid application of tire 1-year time limitation through the timely filing of an inadequate 60-1507 motion simply to “hold open” the time period for making a potentially valid claim for post-conviction relief. And we reiterate that the. outcome in this case is based on its specific facts—primarily the district court’s letter granting Wahl’s implicit request to file his supporting memorandum at a later date by directing Wahl to file his memorandum within 30 days.
Because the lower courts’ errors precluded a proper consideration of Wahl’s claims, the district court must address his 60-1507 motion on remand. Our foregoing discussion is limited to the lower courts’ previous rationales, and it should not be construed as expressing any opinion on the merits of Wahl’s claims. Instead, the district court should consider Wahl’s ineffective assistance of counsel claim as set forth in his supporting memorandum and his sister’s affidavit under our familiar framework for 60-1507 motions.
“When a district court considers a K.S.A. 60-1507 motion, it may: (a) determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (b) determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary healing may be held after appointment of counsel. If the court then determines there is no substantial issue, the court may deny the motion; or (c) determine from the motion, files, records, or preliminary hearing that there is a substantial issue requiring an evidentiary hearing.” Sola-Morales v. State, 300 Kan. 875, Syl. ¶ 1, 335 P.3d 1162 (2014).
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, and the case is remanded with directions. | [
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Hill, J.:
In this appeal Joshua Charles Lull asks us to overturn his jury conviction for driving under the influence of alcohol. Lull has convinced us that the district court erred when it denied his motion seeking to suppress evidence of his refusal to take a breath test. Because the investigating officer did not substantially comply with tire notice requirements under K.S.A. 2012 Supp. 8-1001(k) when she omitted reading an entire paragraph of the notice that clearly applied to Lull, we reverse the conviction and remand for a new trial.
Lull is arrested following an accident.
One afternoon in September 2012, Officer Tina Morse of the Overland Park Police Department responded to the scene of an injury accident in which a truck driven by Lull had struck a U.S. mail truck at an intersection, causing the mail truck to tip on its side, trapping tire driver.
Officer Morse talked with Lull and immediately noticed his eyes were bloodshot and watery and the smell of consumed alcohol emanated from his breath. Lull admitted to having just come from a bar where he had two drinks. When asked to produce proof of his insurance, Lull initially gave Officer Morse his medical insurance card.
Based on these observations, Officer Morse asked Lull to perform field sobriety testing. Lull did the horizontal gaze nystagmus test, alphabet test, number test, walk-and-turn test, and one-leg stand test. Lull completed the alphabet test but indicated impairment when performing the number test, exhibited three clues of impairment on the walk-and-turn test, and exhibited the same clue of impairment on the one-leg stand test four separate times. Officer Morse then arrested Lull for DUI.
Once at the station, Officer Morse started the required 20-min-ute alcohol deprivation period before the administering of a breath test and provided Lull with a copy of the DC-70 form. Officer Morse observed Lull follow along while the DC-70 form was read to him. At one point, however, Officer Morse became distracted by Lull’s comments and lost her place on the DC-70 form. In doing so, Officer Morse failed to read paragraph 7 to Lull. Officer Morse was unaware she had not read paragraph 7 to Lull until she subsequently viewed the video of their interaction. After Lull indicated that he understood the DC-70 form as read to him, Lull was asked to submit to a breath test. Lull refused, indicating he had been told by attorneys not to take the test.
The case moves on to district court.
Lull was convicted in Overland Park Municipal Court of DUI, a second offense, refusal of preliminary breath test, and failure to yield right of way. Lull appealed to the Johnson County District Court. Before trial, Lull filed a motion in limine arguing his test refusal should be suppressed because Officer Morse failed to comply with the oral notice requirements under K.S.A. 2012 Supp. 8-1001(lc).
At the suppression hearing, the City of Overland Park did not dispute that Officer Morse failed to read paragraph 7 of the DC-70 form. However, the City argued that Officer Morse substantially complied with K.S.A. 2012 Supp. 8-1001(k) because the officer’s omission of paragraph 7 was a technical irregularity and Lull had received proper written notice advising him of the essentials of the statute. The district court denied Lull’s motion and his subsequent renewed motion in limine raising the same argument.
During the jury trial, the district court overruled Lull’s objection to the admission of evidence of his test refusal based on the same arguments raised in his motions in limine. The jury found Lull guilty of DUI second offense and failure to yield.
Lull argues to us that the district court erred when it denied his motion in limine seeking to suppress his test refusal. Specifically, Lull claims that Officer Morse’s failure to read paragraph 7 of the DC-70 form in its entirety is not in substantial compliance with the oral notice provisions of K.S.A. 2012 Supp. 8-1001(k). Lull also argues the district court erred when it found that the failure to provide the required notice only concerned the civil administrative action against his driving license.
How we approach this question.
Generally, we review a district court’s decision on a motion to suppress using a bifurcated standard. First, without reweighing the evidence or assessing the credibility of witnesses, we review the district court’s findings to determine whether they are supported by substantial competent evidence. Then, the final legal conclusion of whether to suppress is a question of law which we review de novo. However, when the material facts to a trial court’s decision on a motion to suppress evidence are not in dispute, as in the case here, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). Moreover, the issue raised by Lull requires statutory interpretation, which is a question of law subject to unlimited appellate review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). Finally, the City bore the burden at the suppression hearing. See State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).
The officer did not substantially comply with the notice statute.
K.S.A. 2012 Supp. 8-1001(k) provides that before a blood, breath, or urine test is administered, the person shall be given oral and written notice regarding specific aspects of the Kansas Implied Consent Law and the consequences of refusing to submit to and complete the test when requested and failing the completed test. The notice provisions of K.S.A. 8-1001 are mandatory. State v. Luff, 248 Kan. 911, Syl. ¶ 1, 811 P.2d 873 (1991). However, the Kansas Supreme Court has ruled that substantial compliance with the notice provisions of the statute is sufficient. “To substantially comply with the requirements of the statute, a notice must be sufficient to advise the party to whom it is directed of the essentials of the statute.” Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 213, 755 P.2d 1337 (1988). When there is not substantial compliance with the statute, no prejudice need be shown. Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, 682, 840 P.2d 448 (1992).
Paragraph 7 of the DC-70 form gives notice of the rights found in K.S.A. 2012 Supp. 8-1001(k)(6)(A), which provides in relevant part that the officer must inform the driver that if he or she submits to and completes tire test(s) and the test results show an alcohol concentration of .08 or greater, their driving privileges will be suspended for 1 year for the second or subsequent occurrence.
The district court found Officer Morse substantially complied with the entire implied consent notice under K.S.A. 2012 Supp. 8- 1001 (k) except for reading paragraph 7. In addressing the omission of paragraph 7, the district court noted that paragraph 7 concerned the length of suspension Lull faced if he failed an evidentiary test and then reasoned, “[T]he length of suspension is a different question than whether or not [Lull] was informed of his rights on taking the test.” The district court pointed out that Lull was not alleging his suspension should have been something less than it should have been for his second DUI because Officer Morse did not read him paragraph 7. The district court stated it believed paragraph 7 “goes to the civil aspect. . . not the criminal, because [Lull] did get notice of what he was to do.”
The district court then concluded that Officer Morsels failure to read paragraph 7 or give the complete proper notice was cured by Officer Morse having read Lull both paragraph 6 and, more specifically, paragraph 4 of the DC-70 form. Paragraph 6 correlates with K.S.A. 2012 Supp. 8-1001(k)(6)(A) and (B), which gives notice that a person with no prior convictions for, DUI who submits to and fails an evidentiary test will either have his or her driving privileges suspended for. 30 days if the test results are greater than .08 or for 1 year if greater than .15. And Paragraph 4 advised Lull of the rights found in K.S.A. 2012 Supp. 8-1001(k)(5)—that a person’s driving privileges will be suspended for a year for refusing to submit to a breath, blood, or urine test. After quoting paragraph 4, the district judge stated, “So that’s what he was informed. That’s the reason I believe that he had adequate information on his refusal.”
The City cites Schilling v. Kansas Dep’t of Revenue, No. 109, 743, 2014 WL 2871335 (Kan. App. 2014) (unpublished opinion), and argues that even if this court should construe Officer Morse’s failure to give the notice under paragraph 7 an error, such an omission is still a technical violation that does not support suppression under K.S.A. 2012 Supp. 8-1001(s).
In Schilling, the.court found the officer substantially complied with the notice provisions despite misstating the blood alcohol limit during the oral reading as “1.5 or greater” instead of “.15 or greater” because the driver had also been provided the correct information in the written version and had testified to following along while it was read. 2014 WL 2871335, at *3. In finding the misstatement was merely a technical violation of the statute the court cited language from State v. Menke, No. 101, 426, 2009 WL 1911759 (Kan. App. 2009) (unpublished opinion). In Menke, the court cited K.S.A. 2007 Supp. 8-1001(n), tire prior version of K.S.A. 2012 Supp. 8-1001(s), after it concluded the misstatement of “08” instead of “.08” during the oral notice cannot be more than a technical violation of the statute. 2009 WL 1911759, at *3.
The City’s reliance on Schilling or Menke, which both concerned the suppression of breath test results, is misplaced. K.S.A. 2012 Supp. 8-1001(s) speaks only in terms of suppression of test results, not a test refusal as in the case here. Even though K.S.A. 2012 Supp. 8-1001(v) states: “This act is remedial law and shall be liberally construed to promote public health, safety and welfare,” we ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Where there is no ambiguity, the court need not resort to statutory construction. See State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). And as a general rule, criminal statutes are strictly construed in favor of the accused. State v. Cameron, 294 Kan. 884, 899, 281 P.3d 143 (2012). K.S.A. 2012 Supp. 8-1001(s) clearly has no place in our discussion.
Here, it is undisputed that Officer Morse read the DC-70 form word for word with the exception of omitting paragraph 7. Thus, unlike Schilling or Menke, we clearly have an omission while reading the DC-70 form, not a misstatement. When dealing with an omission, this court has found no error when the omitted paragraph did not apply to the driver in any way. State v. Kaiser, No. 102, 845, 2010 WL 3853206, at *2 (Kan. App. 2010) (unpublished opinion). However, paragraph 7 clearly applied to Lull—Officer Morse in fact testified that Lull had told her it was his second DUI.
The district court’s finding that notice to Lull did not have to include the actual duration of the applicable driving license suspension or civil penalty for failing an evidentiaiy test is erroneous and does not comply with the mandatory statutory requirements that certain notices be given. See Luft, 248 Kan. 911, Syl. ¶ 1. The purpose of the implied consent law is to coerce submission to chemical testing in part by the threat of statutory penalties of li cense suspension. Cuthbertson v. Kansas Dept. of Revenue, 42 Kan. App. 2d 1049, 1055, 220 P.3d 379 (2009). To accomplish this, the legislature sought to convey to a driver the distinction between the specific penalties for refusing to take an evidentiary test and those penalties for having no prior occurrence or a second or subsequent occurrence. See K.S.A. 2012 Supp. 8-1001(k)(6)(A) and (B).
The district court, in its ruling, and the City on appeal suggest that we should look at whether a driver refuses or elects to take the evidentiary test first and then determine if he or she had proper notice. However, K.S.A. 2012 Supp. 8-1001(k) clearly and unambiguously provides that all the required notices be given before asking the driver to submit to a breath test. See Lift, 248 Kan. 911, Syl. ¶ 1. By omitting paragraph 7, Officer Morse did not inform Lull that the statutory penally for him as a repeat DUI offender was more severe for him than those described in paragraph 6, i.e., automatic suspension of driving license for 1 year instead of an automatic suspension of either 30 days or 1 year depending on his blood alcohol level. Thus, Lull did not receive the information necessary for him to make an informed decision as to whether to take the test or not. See Barnhart, 243 Kan. at 213.
In this case, tire City charged Lull with DUI in violation of Overland Park Municipal Code Section 12.04.030 (a)(l)-(3). The City had to prove Lull was under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle. See K.S.A. 2012 Supp. 8-1567(a)(3). Evidence of the incapacity to drive safely can be established through sobriety tests and other means. State v. Huff, 33 Kan. App. 2d 942, 945, 111 P.3d 659 (2005). The jury, in convicting Lull, considered his test refusal as evidence of his intoxication. See K.S.A. 2012 Supp. 8-1001(n). However, Officer Morse’s failure to substantially comply with the notice provisions of K.S.A. 2012 Supp. 8-1001(k) required suppression of Lull’s test refusal. Thus, we must look to the record to determine whether the district court’s erroneous admission of evidence was harmless.
The erroneous admission of evidence is subject to review for harmless error under K.S.A. 60-261. State v. Longstaff, 296 Kan. 884, 895, 299 P.3d 268 (2013). Where an error implicates a stat utory but not federal constitutional right, the party benefiting from the error must persuade the court that there is no reasonable probability that the error affected the trial’s outcome in light of the entire record for it to be deemed harmless. State v. McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012).
Officer Morse stated that she based her opinion that Lull was too intoxicated to drive on the fact that he had crashed his truck, his failure of the field sobriety test, and the totality of her observations. The accident Lull caused resulting in injury to the driver of the mail truck constitutes circumstantial evidence the jury could consider in determining whether Lull was DUI. See State v. Mourning, 233 Kan. 678, 681-82, 664 P.2d 857 (1983). And Officer Morse observed Lull had bloodshot and watery eyes, smelled of alcohol, admitted to having just come from a bar where he had consumed alcohol, and failed both the number test and walk-and-tum test when taking the field sobriety tests.
The City discussed the breath test refusal by first informing the jury that Lull did not have a right to consult with an attorney about taking the test and if someone refuses the test it can be used against that person in court and that person will lose his or her license. The City then argued, “Yet, Mr. Lull refused to take the test. The reason he refused was because he knew he was under the influence to a degree he could not safely operate that vehicle.” The City made a similar argument during its rebuttal: “[Tjhere’s one reason you refuse to take the test, and you lose your license. That’s because you’re under the influence, and you know it.”
With such a strong argument by tire City, we are unconvinced drat had the test refusal evidence been excluded, the jury would still have found Lull guilty beyond a reasonable doubt. We reverse Lull’s conviction and remand for a new trial, directing die suppression of evidence of his breath test refusal.
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Leben, J.:
In 2005, Charles Moore pled guilty to aggravated indecent liberties with a child. At sentencing, the district court classified his 1984 Oregon burglary conviction as a person offense, resulting in a higher criminal-history score and longer sentence than if it had been classified as a nonperson offense. In 2014, he filed a motion to correct an illegal sentence, which the district court denied.
On appeal, Moore argues that in classifying his Oregon burglary conviction as a person offense, the district court violated his constitutional rights to a jury trial and due process because it made a factual finding that increased his sentence but wasn’t proved beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Descamps v. United States, 570 U.S. _, 133 S. Ct. 2276, 2288-89, 186 L. Ed. 2d 438 (2013). In State v. Dickey, 301 Kan. 1018, 1036-40, 350 P.3d 1054 (2015), the Kansas Supreme Court relied on Descamps and Apprendi to determine that the classification of the defendant’s prior burglary conviction as a person offense was unconstitutional. The prior-conviction statute in Dickey criminalized burglary of various structures but not specifically burglary of a dwelling. Since the classification of burglary as a person offense depends on whether it involves a dwelling, the district court had gone into impermissible factfinding when it found that die prior conviction involved a dwelling—a fact that hadn’t been determined by the jury.
But in this case, unlike in Dickey, Moore doesn’t argue that the prior-conviction statute lacked a dwelling element. Instead, he argues that the Oregon statute and the comparable Kansas statute require different forms of criminal intent and that the district court in his case engaged in impermissible factfinding about his intent when it found the two statutes comparable. But the difference be tween the intent elements isn’t relevant to the person classification of prior burglary convictions, and nothing in the Dickey decision requires that we look at Moore’s intent to determine whether his Oregon crime was a person or a nonperson offense. We therefore affirm the district court, which denied Moore’s motion to correct an illegal sentence.
Factual and Procedural Background
In 2005, Moore pled guilty to one count of aggravated indecent liberties with a child. The presentence-investigation report fisted Moore’s criminal history as “A” based on his prior convictions, including a 1984 Oregon conviction for first-degree burglary of a dwelling. At sentencing, Moore initially challenged the validity of the burglaiy conviction, but he withdrew his objection when the State presented a certified copy of the conviction.
The district court sentenced Moore to 494 months in prison based on his criminal-history score and its finding that he was a persistent sex offender, which doubled his sentence. See K.S.A. 2004 Supp. 21~4704(j). He did not challenge his criminal-histoiy score in the direct appeal of his conviction and sentence, and his appeal was dismissed. State v. Moore, No. 94,309, 2006 WL 903164, at *1 (Kan. App. 2006) (unpublished opinion).
In December 2014, Moore filed a motion to correct an illegal sentence. He argued that under State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016), the district court was required to recalculate his criminal-history score and reduce his sentence. The district court denied Moore’s motion, finding that Murdock did not apply. And although Moore had not mentioned the case in his motion, the court noted that another case dealing with how to calculate criminal-histoiy scores, State v. Dickey, 50 Kan. App. 2d 468, 329 P.3d 1230 (2014), aff'd 301 Kan. 1018, 350 P.3d 1054 (2015), also didn’t apply.
Moore has appealed to this court.
Analysis
Moore argues that the district court violated his constitutional rights and imposed an illegal sentence when it classified his 1984 Oregon burglaiy conviction as a person offense, increasing his criminal-histoiy score and, therefore, his sentence.
K.S.A. 22-3504 provides that “[t]he court may correct an illegal sentence at any time.” The Kansas Supreme Court strictly defines an “illegal sentence” as “(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in the character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.” Makthepharak v. State, 298 Kan. 573, 578, 314 P.3d 876 (2013); State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). Defendants can use K.S.A. 22-3504 to challenge their criminal-history scores because such a challenge meets the second definition of an illegal sentence: its a claim that a sentence doesn’t conform to tire applicable statutory provision. Dickey, 301 Kan. at 1034 (citing State v. Neal, 292 Kan. 625, 631, 258 P.3d 365 [2011]). But as a general rule, defendants can’t use K.S.A. 22-3504 to challenge their sentences on constitutional grounds because a constitutional challenge doesn’t fall within the narrow definition of an illegal sentence. State v. Lee, 304 Kan. 416, 417-18, 372 P.3d 415 (2016) (motion to correct illegal sentence wasn’t appropriate way to assert claim that sentence was unconstitutional); State v. Warrior, 303 Kan. 1008, Syl., 368 P.3d 1111 (2016) (“A motion to correct illegal sentence under K.S.A. 22-3504[1] is an improper procedural vehicle for a constitutional claim.”).
The State argues that Moore’s claim is constitutional and can’t be brought under K.S.A. 22-3504. See Lee, 304 Kan. at 417-18; Warrior, 303 Kan. 1008, Syl. But Dickey held that when a constitutional challenge impacts a defendant’s criminal-history score, that challenge meets the definition of an illegal sentence: if the criminal-history score is wrong for any reason, the sentence no longer complies with the sentencing statutes. Dickey, 301 Kan. at 1034 (citing Neal, 292 Kan. at 631); State v. Vasquez, 52 Kan. App. 2d 708, 714-18, 371 P.3d 946 (2016) (distinguishing claim that a sentencing statute is unconstitutional from a claim that a constitutional error caused an incorrect criminal-history score and illegal sentence); see State v. Luarks, 302 Kan. 972, 975-76, 360 P.3d 418 (2015). Moores claim can be brought under K.S.A. 22-3504.
The State makes three other procedural arguments, but none keep us from considering Moores appeal on the merits. First, Moore can raise his Dickey argument for the first time on appeal because K.S.A. 22-3504 allows the court to correct an illegal sentence at any time. Dickey, 301 Kan. at 1027. Second, Moore didn’t waive his Dickey argument by failing to object to his criminal-history score at sentencing: the Kansas Supreme Court rejected this argument in Dickey and held that a defendants stipulation or failure to object at sentencing doesn’t prevent the defendant from later challenging how prior convictions were classified for sentencing purposes. 301 Kan. at 1031. Third, the State argues that by pleading guilty, Moore waived his right to a juiy at sentencing to determine any facts beyond those to which he pled that would increase his sentence. But the Kansas Supreme Court has said that under Apprendi, a' defendant’s guilty plea doesn’t constitute a waiver of his or her due-process rights, including the right to have facts that increase his or her sentence proved beyond a reasonable doubt. See State v. Cody, 272 Kan. 564, 565-66, 35 P.3d 800 (2001); see also State v. Allen, 283 Kan. 372, 377-78, 153 P.3d 488 (2007). Moore’s argument is properly before this'.court.
Whether a sentence is illegal and whether prior convictions are properly classified as person or nonperson crimes are questions of law that we review independently, without any required deference to the district court’s conclusions. Luarks, 302 Kan. at 976.
We begin our analysis with the Kansas Sentencing Guidelines Act. Under the Act, a defendant’s sentence is based on two factors: the severity of the current offense ánd the criminal-history score of the defendant. See K.S.A. 2015 Supp. 21-6804(a) (nondrug grid); K.S.A. 2015 Supp. 21-6805(a) (drug grid). The severity of the current offense is simply set forth in Kansas’ criminal statutes. See, e.g., K.S.A. 2015 Supp. 21-5807(c) (listing severity levels for different types of burglary). The criminal-history score, which is deter mined by the judge, can range from T (no criminal history or one misdemeanor) to “A” (three or more person felonies). K.S.A. 2015 Supp. 21-6809; K.S.A. 2015 Supp. 21-6804(a).
To calculate the criminal-history score, a court lists all of a defendants prior convictions and then classifies each conviction in various ways, including whether it’s a felony or a misdemeanor conviction and whether its a person or a nonperson conviction. K.S.A. 2015 Supp. 21-6810. Crimes that cause physical or emotional harm to another person are generally person offenses and are weighted more heavily, while crimes that damage property are nonperson offenses and are weighted less heavily. Keel, 302 Kan. at 574-75. So having more prior person convictions will result in a higher criminal-history score, and a higher criminal-history score will lead to a longer prison sentence. See K.S.A. 2015 Supp. 21-6804(a); K.S.A. 2015 Supp. 21-6809. For convictions that occurred in Kansas after the sentencing guidelines became effective in 1993, these classifications are easy, because they appear in the text of Kansas criminal statutes. Keel, 302 Kan. at 574-75. But for all out-of-state convictions and for pre-1993 Kansas convictions, the classification process can be less straightforward. See, e.g., K.S.A. 2015 Supp. 21-6811(d), (e).
For an out-of-state conviction, the court makes two classifications after the State proves that the conviction exists. First, the court determines whether the prior conviction is a misdemeanor or a felony based on the law of the state where the defendant was convicted: “An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction.” K.S.A. 2015 Supp. 21-6811(e)(2). And “[i]f a crime is a felony in another state, it will be counted as a felony in Kansas.” K.S.A. 2015 Supp. 21-6811(e)(2)(A). Second, the court determines whether the prior conviction is a person or a nonperson offense by comparing the prior-conviction statute to the “comparable offense” in effect in Kansas on the date the current crime was committed. K.S.A. 2015 Supp. 21-6811(e)(3). Kansas courts have said that “comparable offense” means what it says: “ ‘the offenses need only be comparable, not identical.’” State v. Williams, 299 Kan. 870, 873, 326 P.3d 1070 (2014) (quoting State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 [2003], overruled on other grounds by Dickey, 301 Kan. at 1032).
Similarly, to classify pre-1993 Kansas convictions as person or nonperson, the court compares the prior-conviction statute to the “comparable offense” in Kansas in effect on the date the current crime was committed. K.S.A. 2015 Supp. 21-6810(d)(2); Keel, 302 Kan. at 581.
Finally, a special rule applies for classifying prior burglary convictions as person or nonperson: if the prior conviction involved burglary of a dwelling, it’s a person crime, and if it didn’t involve a dwelling, it’s a nonperson crime. K.S.A. 2015 Supp. 21-6811(d); State v. Cordell, 302 Kan. 531, 534, 354 P.3d 1202 (2015). This distinction comes from the justification behind the person/nonperson classification and the definition of “dwelling”: crimes that cause physical or emotional harm to another person are generally person crimes and are weighted more heavily, Keel, 302 Kan. at 574-75, and whether a place is a “dwelling” turns on whether it is used or intended to be used as a place for people to five. K.S.A. 2015 Supp. 21-5111(k). So burglaries of dwellings are more likely to involve harm to a person and are person offenses. See K.S.A. 2015 Supp. 21-6811(d); State v. Roose, 41 Kan. App. 2d 435, 439, 203 P.3d 18 (2009).
With this review of Kansas sentencing statutes in mind, we turn now to the relevant constitutional principle. Apprendi held that because of the Sixth Amendment right to a jury trial, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond tire prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. The “prescribed statutory maximum” is the punishment that’s authorized under nothing but the facts found by the jury. State v. Gould, 271 Kan. 394, 410-11, 23 P.3d 801 (2001). In other words, a Kansas jury verdict, standing alone, authorizes only the sentence a defendant would receive if he or she has no criminal history—because the judge, and not the jury, determines a defendant’s criminal-history score. Gould, 271 Kan. at 410-11. Under Apprendi, the court still can use prior convictions to calculate a defendant’s criminal-history score, which may increase a defendant’s sentence. But the court can’t increase a defendants sentence based on anything except those prior convictions. In Gould, for example, the Kansas Supreme Court applied Apprendi to hold that upward-departure sentences—increasing tire maximum sentence that a defendant could receive based on aggravating facts found by the judge^—-were unconstitutional under Apprendi. 271 Kan. 394, Syl. ¶¶ 2-6.
Apprendi issues also arise, to a more limited extent, when a court looks beyond the mere existence of a prior conviction to classify it in some way. In Descamps, for example, the Supreme Court considered how a court should classify prior convictions when increasing a defendants sentence under a provision of the federal Armed Career Criminal Act. See Descamps, 133 S. Ct. at 2282. That Act prescribes a sentence increase for any felon who possesses a firearm and also has three prior convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C. §§ 922(g), 924(e) (2012). As federal courts have interpreted the Armed Career Criminal Act, a prior conviction qualifies as a “violent felony” only if the prior-conviction statute’s elements are the same as, or narrower than, those of the generic offense. 133 S. Ct. at 2281.
That rule is derived from the Supreme Court’s interpretation of the Armed Career Criminal Act, not the Constitution, but it has “Sixth Amendment underpinnings,” as it keeps sentencing courts from running afoul of Apprendi. Considering tire Apprendi principle underlying Descamps is illuminating because, broadly speaking, federal sentencing courts have to look beyond the existence of a prior conviction and determine whether it qualifies as a “violent felony” or a “serious drug offense” that will increase a defendant’s sentence in the same way that Kansas sentencing courts have to look beyond the existence of a prior conviction and determine whether it is a person crime that will increase a defendant’s sentence. See Descamps, 133 S. Ct. at 2281-82, 2288-89.
Specifically, in Descamps, the federal sentencing statute defined “violent felony” as burglary, arson, extortion, or another felony that includes an element of using physical force against a person. 18 U.S.C. § 924(e)(2)(B) (2012). To determine whether a prior burglary conviction counts as the type of burglary fisted in the definition of “violent felony,” the court compares the elements of the prior-conviction statute to the elements of the generic offense of burglary. 133 S. Ct. at 2281. To make this comparison without doing unconstitutional factfinding, federal sentencing courts use what the Supreme Court has called the categorical and modified-categorical approaches: both are ways to compare the elements of the prior conviction with elements of the generic offense without looking into the facts underlying the prior conviction. 133 S. Ct. at 2281.
Under the categorical approach, the court looks only at the elements of the two offenses. 133 S. Ct. at 2281. The court uses the modified-categorical approach when the prior-conviction statute is divisible—in other words, when the statute provides alternative ways of committing the crime. 133 St. Ct. at 2281. Under the modified-categorical approach, the court can look at a limited set of documents (like indictments and jury instructions) to determine which of the alternatives the defendant was actually convicted of. 133 S. Ct. at 2281. So, the modified-categorical approach lets the court look at a few underlying facts from the prior conviction, but not for sentencing purposes—only to determine which parts of the prior-conviction statute it should compare to the generic offense. 133 S. Chat 2281.
For example, Descamps had a prior burglary conviction from California, and the California statute was broader than generic burglary because it didn’t require proof of unlawful entry, while generic burglary requires breaking and entering of some kind. The California statute wasn’t divisible because it provided only one way to commit the crime, but the sentencing court looked at the underlying facts of the prior conviction anyway to determine whether it had actually involved an unlawful entry. The Supreme Court reversed, holding that the modified-categorical approach could only be used if the prior-conviction statute was divisible, to determine which part of the statute the defendant was convicted under; it couldn’t be used to discover other facts about the prior conviction to make it fit the generic offense. 133 S. Ct. at 2283.
The sentencing court in Descamps had looked at the facts underlying the prior conviction to determine whether Descamps had actually committed an unlawful entry, even though he wasn’t convicted of a crime that required pi'oof of an unlawful entry. The court was ultimately trying to determine whether to classify Des-camps’ prior conviction as a “violent felony” 18 U.S.C. §§ 922(g), 924(e). And although the Supreme Court didn’t discuss it directly, the unlawful entry, or the brealdng-and-entering element, is arguably what makes burglary a violent felony. See 133 S. Ct. at 2282, 2288-89. So the sentencing court’s factfinding about the brealdng- and-entering element in particular would violate Apprendi: The sentencing court found a fact about the prior conviction and used that fact to classify the burglary as a violent felony and increase the maximum sentence that Descamps could receive.
Like in Descamps, Apprendi problems can arise when Kansas courts classify prior convictions as person or nonperson crimes. See Dickey, 301 Kan. at 1039-40. As explained earlier, this problem doesn’t occur for prior convictions that occurred in Kansas after the Kansas Sentencing Guidelines Act became effective in 1993, because after that date, Kansas criminal statutes expressly stated whether they were person or nonperson crimes. But for out-of-state convictions and for pre-1993 in-state convictions, die district court has to determine whether they involved harm to a person and classify them as person or nonperson crimes. See K.S.A. 2015 Supp. 21-6811(d), (e)(5) (the facts required to classify prior burglary convictions and prior out-of-state convictions shall be established by the State by a preponderance of the evidence); see also K.S.A. 2015 Supp. 21-6810(d) (consider and score pre-1993 Kansas convictions based on comparable current Kansas offense). This classification is usually made by comparing the prior-conviction statute to the comparable Kansas statute in effect at the time tire current crime was committed and using the classification in the comparable Kansas statute. Keel, 302 Kan. at 581.
This is what happened in Dickey. There, the district court classified the defendant’s 1992 Kansas juvenile adjudication for burglary as a person felony. As discussed, prior convictions for burglary are scored as person or nonperson offenses based on whether the prior conviction involved burglary of a dwelling because that’s where the potential for harm to a person occurs. K.S.A. 2015 Supp. 21-6811(d). The 1992 burglary statute didn’t include a dwelling ele ment. Dickey, 301 Kan. at 1039. So the sentencing court would have had to look at the facts underlying the 1992 conviction, determine that it involved a dwelling, and then use that fact to classify the conviction as a person felony and increase the defendants sentence. This is exactly the type of “judicial factfinding that goes beyond merely finding the existence of a prior conviction or the statutoiy elements constituting that prior conviction” that Appren-di prohibits. 301 Kan. at 1021. So the Dickey court concluded that “classifying Dickeys prior burglary adjudication as a person felony violate[d] his constitutional rights.” 301 Kan. at 1021.
Here, like in Dickey, Moore challenges the classification of a prior burglary conviction, but unlike in Dickey, his argument isn’t about the dwelling element. Instead, he argues that his prior conviction was wrongly classified as a person offense because the Oregon burglary statute includes a broader intent element than the Kansas burglary statute in effect when Moore committed his current crime. Essentially, he argues that because of this statutory difference, the Kansas burglary statute isn’t comparable to the Oregon statute. And if there is no comparable Kansas crime, the prior conviction must be classified as nonperson. See K.S.A. 2015 Supp. 21-6811(e)(3) (“If the state of Kansas does not have a comparable offense in effect on the date the current crime of conviction was committed, the out-of-state conviction shall be classified as a nonperson crime.”).
Because Moore’s prior conviction comes from Oregon, the court had to classify it in two key ways after the State proved that it existed. First, the court had to determine whether it was a misdemeanor or a felony, based on how Oregon classified it. K.S.A. 2015 Supp. 21-6811(e)(2). Oregon classifies burglary as a felony, Or. Rev. Stat. § 164.225(2), so the sentencing court classified the prior conviction as a felony. K.S.A. 2015 Supp. 21-6811(e)(2)(A). Second, the court had to classify the Oregon conviction as a person or a nonperson crime by (a) determining the comparable offense in effect in Kansas on the date the current crime was committed, K.S.A. 2015 Supp. 21-6811(e)(3), and (b) looking specifically at whether the Oregon statute included a dwelling element because thats what makes burglary a person offense in Kansas. K.S.A. 2015 Supp. 21-68U(d).
When determining which Kansas statute is comparable to an out-of-state conviction, “‘the offenses need only be comparable, not identical/ ” Williams, 299 Kan. at 873 (quoting Vanderoort, 276 Kan. at 179). In other words, a comparable crime “must be ‘similar in nature and cover a similar type of criminal conduct/” State v. Riolo, 50 Kan. App. 2d 351, 353, 330 P.3d 1120 (2014), rev. denied 302 Kan. 1019 (2015) (quoting State v. Barajas, 43 Kan. App. 2d 639, 643, 230 P.3d 784 [2010]); see State v. Buoy, No. 113,796, 2016 WL 1546422, at *4 (Kan. App. 2016) (unpublished opinion) (comparing first-degree criminal trespass in Arizona to the Kansas statutes for burglary and criminal trespass and determining that the Kansas criminal-trespass statute is more comparable). In Williams, the defendant made essentially the same argument that Moore makes here: that the Kansas offense wasn’t comparable because the out-of-state statute required intent to commit any crime, while the Kansas statute required intent to commit a felony, theft, or sexual battery. Williams, 299 Kan. at 874. But the Williams court rejected that argument, stating that “the evidence-based approach Williams promotes is not the approach used by Kansas courts. Our courts examine the out-of-state crime of conviction and attempt to find a comparable Kansas crime.” 299 Kan. at 874. The court went on to note specifically: “In this legal review of criminal statutes, there is no review of the evidence surrounding the out-of-state conviction.” 299 Kan. at 875.
Williams was decided before Dickey, but the statutory comparison that the Williams court describes is consistent with Dickey and doesn’t implicate Apprendi because tire court looks only at the statutory elements and not at the facts underlying the prior conviction. Williams, 299 Kan. at 874-75. Indeed, this comparability analysis is completely consistent with the categorical approach described in Descamps and Dickey. Descamps, 133 S. Ct. at 2281; Dickey, 301 Kan. at 1037. A court violates Apprendi if (1) it makes factual findings about the prior conviction and (2) those findings increase the maximum sentence that a defendant could receive. 530 U.S. at 490; see also Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013) (extending Apprendi to hold that any fact that increases a prescribed statutory minimum sentence, not just a maximum one, must be proven to a jury). But in the comparable-offense analysis, the court looks only for comparable statutory elements; it doesn’t malee any factual findings about the prior conviction, so the Apprendi rule doesn’t come into play. Williams, 299 Kan. at 874-75; see State v. Friesen, No. 113,495, 2016 WL 1546178, at *3 (Kan. App. 2016) (unpublished opinion) (describing Apprendi as a limit on the statutory comparison that prohibits a court from making factual findings beyond identifying statutory elements).
So, having determined that the Oregon burglary is a felony, the court next has to determine which Kansas statute is comparable. K.S.A. 2015 Supp. 21-6811(e)(3). The comparable Kansas statute is the one that was in effect in 2004, when Moore committed the crimes at issue here. Keel, 302 Kan. at 581. (The relevant statutes haven’t changed much in substance since then; the minor changes that have been made do not affect the arguments here. For the convenience of today’s reader, then, we will cite to the most current statutes in this opinion.) Kansas burglary is: “widiout authority, entering or remaining within” either a dwelling or a nondwelling “with intent to commit a felony, theft or sexually motivated crime therein.” (Emphasis added.) K.S.A. 2015 Supp. 21-5807(a). Kansas burglary is a person crime if it involves a dwelling. K.S.A. 2015 Supp. 21-6811(d). Kansas defines “dwelling” as “a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence.” K.S.A. 2015 Supp. 21-5111(k).
Oregon criminalizes burglary in the second degree as entering or remaining “unlawfully in a building with intent to commit a crime therein.” (Emphasis added.) Or. Rev. Stat. § 164.215. But Moore concedes that he was convicted of first-degree burglary in Oregon under Or. Rev. Stat. § 164.225:
“(1) A person commits the crime of burglary in the first degree if the person violates O.R.S. 164.215 and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom tire person:
(a) Is armed with a burglar’s tool as defined in O.B..S. 164.235 or a deadly weapon; or
(b) Causes or attempts to cause physical injury to any person; or
(c) Uses or threatens to use a dangerous weapon.” (Emphasis added.)
Oregon defines “dwelling” as “a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present.” Or. Rev. Stat. §§ 164.205(2); 164.225.
We note that the Oregon statute is divisible because it provides multiple ways to commit first-degree burglary: either it involved a dwelling, a burglars tool, physical injuiy to another, or a dangerous weapon. See Descamps, 133 S. Ct. at 2281; Dickey, 301 Kan. at 1037-38. But Moore doesn’t argue that the district court erred when it classified this conviction as a person crime because that classification was based on a factual finding that the Oregon burglary conviction involved a dwelling. If he had, we would remand the case for the district court to use the modified-categorical approach and examine documents related to the Oregon conviction to determine, if it could, under which of these alternatives Moore was convicted. See Descamps, 133 S. Ct. at 2281; Dickey, 301 Kan. at 1037-38. If he was convicted under any of the alternatives except the dwelling option, or if the district court couldn’t determine which of the alternatives formed tire basis of the conviction, then the court would have to classify it as a nonperson crime. See Dickey, 301 Kan. at 1039; State v. Mullens, 51 Kan. App. 2d 1114, 360 P.3d 1107, 1111 (2015). But if the modified-categorical approach showed that Moore was convicted of first-degree burglary based on the dwelling element, then the Oregon conviction would be properly classified as a person crime because the Oregon and Kansas definitions of “dwelling” are similar and both turn on the potential presence of a person. Compare Or. Rev. Stat. §§ 164.205(2), with K.S.A. 2015 Supp. 21-5111(k).
We do not remand for that purpose, however, because nowhere in his brief on appeal does Moore argue that the “dwelling” elements of the Oregon and Kansas statutes aren’t identical, and he has not disputed that he was convicted of first-degree burglary of a dwelling in Oregon. Moore did initially challenge the classifica tion of this conviction at sentencing, but after he and his counsel reviewed the certified record of the conviction, he dropped his challenge. And the presentence-investigation report, to which he dropped his objection, fists the conviction as “Burglary in tire First Degree (Dwelling).”
Moore instead argues that his prior conviction was wrongly classified as a person crime because the Oregon burglary statute included a broader intent element tiran the comparable Kansas burglary statute, making the crimes not actually comparable and requiring a nonperson classification. See K.S.A. 2015 Supp. 21-6811(e)(3). Moore is correct that the Oregon intent element is broader than the Kansas intent element, but he is wrong that this difference comes into play in deciding whether his Oregon conviction was a person offense.
Moore’s argument is based on the broad rule recited in Descamps that the prior-conviction statute must be identical or narrower tiran the elements of the generic offense to qualify as a violent felony and increase a defendants sentence. 133 S. Ct. at 2281. But this identical-or-narrower rule is a federal rule governing interpretation of the Armed Career Criminal Act. See Taylor v. United States, 495 U.S. 575, 588, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990) (The Act “intended that the enhancement provision be triggered by crimes having certain specified elements, not by crimes that happened to be labeled ‘robbery’ or ‘burglary’ by the íaws of the State of conviction.”). Indeed, the categorical approach existed before Apprendi was decided; only later did the Court in Descamps recognize that it helped prevent Apprendi violations. State v. Buell, 52 Kan. App. 2d 818, 830, 377 P.3d 1174 (2016); see Descamps, 133 S. Ct. at 2288 (noting that classifying a prior conviction “would (at the least) raise serious [constitutional] concerns if it went beyond merely identifying a prior conviction”). This rule served as background in Des-camps, in which the court compared a specific California burglary statute to the generic offense of burglary; Under the Armed Career Criminal Act, the California burglaiy statute had to be identical or narrower than generic burglary. 133 S. Ct. at 2281.
But in Kansas, there’s no statutory requirement that an out-of- state offense be identical or narrower than the comparable Kansas offense. Buell, 52 Kan. App. 2d at 829-30; Williams, 299 Kan. at 873. And while the Kansas Supreme Court relied on Descamps to decide Dickey, it focused on the Apprendi principle, not on the identical-or-narrower rule. See Dickey, 301 Kan. at 1039-40. And it also didn’t adopt the identical-or-narrower rule—doing so would have required overruling past Kansas caselaw holding that the comparable Kansas offense doesn’t have to be identical to the prior-conviction statute and that the question is whether the statutes prohibit similar conduct. See, e.g., Williams, 299 Kan. at 873 (quoting Vandervort, 276 Kan. at 179); State v. Riolo, 50 Kan. App. 2d at 353 (quoting Barajas, 43 Kan. App. 2d at 643).
So Kansas doesn’t require comparable statutes to be identical— but is the difference between intent elements as meaningful as a difference in dwelling elements can be when classifying prior convictions as person or nonperson crimes? See Dickey, 301 Kan. at 1038-40. In a word, no.
Moore’s Oregon conviction is definitely a felony. See Or. Rev. Stat. § 164.225(2); K.S.A. 2015 Supp. 21-6811(e)(2)(A). And prior felony convictions are either person or nonperson, with nonperson being the lower and default option. See, e.g., K.S.A. 2015 Supp. 21-6811(e)(3) (if there’s no comparable crime in Kansas, an out-of-state felony is a nonperson felony). So a nonperson classification doesn’t implicate Apprendi because the classification doesn’t increase a defendant’s sentence—it only shows the fact of a prior conviction, as expressly permitted under Apprendi. 530 U.S. at 490. But changing the classification to “person” will increase a defendant’s sentence because crimes that cause physical or emotional harm to'another person are weighted more heavily in the sentencing guidelines. Buell, 52 Kan. App. 2d at 823; Keel, 302 Kan. at 574-75; see K.S.A. 2015 Supp. 21-6804(a); K.S.A. 2015 Supp. 21-6809.
For burglary convictions, the dwelling element is the only thing diat separates person burglary from nonperson burglary; in other words, the level of intent required for nonperson burglary is the same as person burglary. K.S.A. 2015 Supp. 21-6811(d); see K.S.A. 2015 Supp. 21-5807; Buell, 52 Kan. App. 2d at 831. So intent is irrelevant to the person classification of Moore’s Oregon burglary conviction. As such, there’s no reason to use the Descamps categorical or modified-categorical approach to avoid an Apprendi problem because the difference in the statutes isn’t related to increasing Moore’s sentence. Buell, 52 Kan. App. 2d at 831.
We recognize that in some earlier cases, other panels of this court have reached the opposite conclusion and have remanded cases similar to this one for application of the categorical or modified-categorical approaches. These panels have concluded, although without much explanation, that Dickey adopted the identical-or-narrower rule from Descamps and that such a result was mandated by Apprendi, Descamps, and Dickey. Mullens, 51 Kan. App. 2d at 1119-20 (remanding for the modified-categorical approach on the intent elements in the Texas and Kansas burglary statutes); see State v. Gonzales, No. 107,798, 2016 WL 299042, at *7 (Kan. App. 2016) (unpublished opinion), rev. denied 305 Kan. 1254 (2016) (same for “in or on” element of the Arizona burglary statute); State v. Lewis, No. 113,438, 2016 WL 1546133, at *5 (Kan. App. 2016) (unpublished opinion) (same for “building or habitation” element of tire Texas burglary statute); State v. Morris, No. 111,783, 2016 WL 299056, at *4-5 (Kan. App. 2016) (unpublished opinion), rev. denied 305 Kan. 1256 (2016) (affirming sentence because prior Kansas battery and assault conviction statutes were narrower than comparable Kansas statutes); see also State v. Smith, No. 113,297, 2016 WL 1391767, at *9-10 (Kan. App. 2016) (unpublished opinion), rev. denied 305 Kan. 1257 (2016) (remanding for modified-categorical approach to compare both the dwelling and intent elements of the South Carolina and Kansas burglary statutes); State v. Sturgis, No. 112,544, 2015 WL 9286956, at *18 (Kan. App. 2015) (unpublished opinion), rev. granted 305 Kan. 1257 (2016) (same for intent element of Michigan home-invasion statute).
Another panel of our court, in the Buell opinion also filed today, is in agreement with us that we need not look at additional documents and facts under the modified-categorical approach to determine which part of a divisible statute applied to the defendant unless one of those divisible alternatives has a meaningful impact on the person classification of the prior conviction. Buell, 52 Kan. App. 2d at 831. The mod ified-categorical approach is just a tool to figure out which part of the statute the defendant was convicted under, nothing more. 133 S. Ct. at 2285. And if we don’t need to know which part of the statute the defendant was convicted under, either to choose the comparable Kansas statute or to determine whether, within that comparable statute, the element relevant to the person classification matches the prior conviction statute, then we don’t need to do the modified-categorical approach. Cf. Lewis, 2016 WL 1546133, at *5 (an example of where the modified-categorical approach would be appropriate because the prior-conviction statute criminalized burglary of a “building or habitation” and only “habitation” fit the Kansas definition of “dwelling”).
As a group, Mullens, Gonzales, Smith, and Sturgis (four of the six cases listed above) all involved a prior burglary or home-invasion conviction from another state. See, e.g., Mullens, 51 Kan. App. 2d at 1118. They began their analyses by pointing out the differences between the prior-conviction statute and the comparable Kansas statute. See, e.g., 51 Kan. App. 2d at 1116-17. In doing so, none of them discussed or cited the Kansas caselaw that says “comparable” doesn’t mean “identical.” See, e.g., 51 Kan. App. 2d at 1118-20. Then they stated that Dickey adopted the Descamps analysis, noted that the out-of-state prior-conviction statutes were divisible, and remanded for the district court to apply the modified-categorical approach to determine both (1) which section of the prior-conviction statute the defendant was convicted under and (2) whether that section was identical to or narrower than the Kansas statute. See, e.g., 51 Kan. App. 2d at 1118-20. They did this without regard for how or why Kansas courts classify crimes as person or nonperson, even though for burglary crimes, the only element relevant to the person/nonperson classification is whether the crime involved a dwelling. Accordingly, in our view, these cases reached the wrong result because they overlooked the Kansas definition of “comparable” and adopted the broad identical-or-narrower rule from Des-camps.
We do not lightly disagree with prior decisions reached by our court. But panels of our court are allowed to do so. See State v. Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010). And such disagree ment can alert the Kansas Supreme Court to conflicting rulings that it may need to resolve. See K.S.A. 20-3018(b) (providing that the Supreme Court may review Court of Appeals decision when in conflict with another). Or it may be that our court will collectively adopt the approach taken today in Buell and Moore. Time will tell on that front.
In sum, to classify out-of-state convictions as person or nonperson offenses for sentencing purposes, first we compare statutory elements to determine which Kansas statute is “comparable.” K.S.A. 2015 Supp. 21-6811(e). The Descamps categorical and modified-categorical approaches are consistent with this comparison and provide protection against unconstitutional factfinding because they direct courts to focus on statutory elements rather than underlying facts. See Dickey, 301 Kan. at 1038-39. Second, the court classifies the conviction as person or nonperson based on that comparable Kansas crime. K.S.A. 2015 Supp. 21-6811(e)(3). If the element of the comparable Kansas crime that causes it to be a person crime is narrower than that same element as it exists in the prior-conviction statute, we have an Apprendi problem like the dwelling issue in Dickey. 301 Kan. at 1039-40. But if other elements of the two statutes don’t match up perfectly, there’s no Apprendi problem because the court doesn’t rely on those elements to make the person/nonperson classification.
So here, Moore’s Oregon burglary is comparable to a Kansas burglary, and the differences in the statutes aren’t relevant to the person classification. Moore’s Oregon burglary conviction was correctly classified as a person crime, and the district court properly denied Moore’s motion to correct an illegal sentence.
We therefore affirm the district court’s judgment. | [
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Hill, J:
This case brings up the question of liability of a surety on a bail bond, where the bond was declared forfeited and then reinstated with new conditions with no notice of the changes given to the surety. We believe that the surety should at least have notice of any material changes made to an appearance bond in order to be held liable for later violations of the contract. Since there was no notice given to the surety here, we reverse and vacate the judgment of the trial court.
Appearance History
Billy F. Warfield was surety on the bail bond for Tyler W. Sedam when Sedam was charged with possession of methamphetamine in Sedgwick County. At his first appearance, the court ordered Sedam to appear for a preliminary hearing on December 16, 2003, at 9 a.m., and he was “released from custody upon the execution of an appearance bond in the amount of $10,000 conditioned upon the appearance of defendant before this court when ordered.” On the same day, Sedam and Warfield posted an appearance bond, which contained a modification clause:
“If the amount of the bond required for the person’s appearance or the other conditions are modified from the above amount or conditions, then this bond is null and void, and a new bond in the required amount and/or with the modified other conditions must be posted at the time.
“We tire undersigned, state that this bond is continuing in nature.
“Failure to appear at the time/date and location listed above will result in a bench warrant for the immediate arrest of the principal and judgment against principal and surety for the amount of bond.”
Sedam failed to appear at the preliminary hearing on December 16, 2003, the bond was declared forfeited, and an alias warrant was issued for his arrest. The journal entiy containing these orders was filed the next day.
Then, on December 19,2003, Sedam appeared in court, waived his prehminary hearing, and entered a plea of not guilty. His counsel requested that bond be reinstated because Sedam had simply shown up at the December 16 docket late, and he had been taken into custody. The State confirmed what had happened and requested additional conditions be placed on the bond if the court allowed reinstatement. The trial court “reinstated” the bond in the same form but with an additional condition that Sedam be supervised by pretrial services. Consequently, Sedam was ordered to appear on December 22, 2003, at 11 a.m. at the pretrial services office and reappear periodically thereafter. No notice of the rev ocation, reinstatement, or addition of a condition was given the surety.
In due course, as directed by pretrial services, Sedam submitted a urine sample on January 8, 2004, which tested positive for amphetamine. Not surprisingly, he failed to report to pretrial services as directed on Januaiy 15, 2004, and he could not be located. Finally, on January 27, 2004, an alias warrant was issued for Sedam and the court ordered the forfeiture of the bond. The State made another motion to forfeit bond when Sedam failed to appear on February 9, 2004, which was granted.
The State filed a motion for judgment on the forfeiture of bond, based on Sedam’s failure to appear on February 9,2004. Warfield, the surety, was notified of this motion. At the hearing on the motion for judgment on forfeiture of bond, tire court found that the added condition of Sedam having to appear before pretrial services did not act to the detriment of the bondsman. The court then granted the State judgment against Sedam as principal and Warfield as surety in the sum of $10,000.
Warfield argues that he is not responsible for this bond forfeiture because the conditions of the bond had been changed and there was no notice to him of the reinstatement of the bond. The State argues that reinstatement of Sedam’s bond did not prejudice War-field in any way and Sedam’s bond was revoked for failing to appear, which was the fundamental obligation of the bond.
Rules of Review
The decision to set aside a bond forfeiture or judgment on a forfeiture under K.S.A. 2004 Supp. 22-2807 is left to the sound discretion of the trial court. We review that decision under an abuse of discretion standard. See State v. Indemnity Ins. Co. of N. Amer., 9 Kan. App. 2d 53, 57, 672 P.2d 251 (1983), rev. denied 234 Kan. 1077 (1984); State v. Buckle, 4 Kan. App. 2d 250, 252, 604 P.2d 743 (1979). “Judicial discretion is abused if judicial action is arbitrary, fanciful, or unreasonable, such that no reasonable person would take the view adopted by the trial court.” State v. Prater, 31 Kan. App. 2d 388, 396, 65 P.3d 1048, rev. denied 276 Kan. 973 (2003).
Analysis
An appearance bond is a contract between the principal and the surety on the one hand and the State on the other. Indemnity Ins. Co., 9 Kan. App. 2d at 55. It is the responsibility of the surety to know the whereabouts of the defendant, to watch the court’s calendar, and to see that the defendant appears as ordered. 9 Kan. App. 2d at 56. But a material modification which alters the surety’s obligation will discharge the surety. First Nat’l Bank of Anthony v. Dunning, 18 Kan. App. 2d 518, 520, 855 P.2d 493, rev. denied 253 Kan. 857 (1993).
We disagree with the State’s argument that the bondsman was unaffected by the additional condition of appearance before pretrial services. The risk to the surety increased greatly with the new condition because it created more reasons why the bond could be revoked. First of all, Sedam was required to submit to urinalysis, when before he was not. For a defendant charged with possession of methamphetamine, the surety should be given some opportunity to reconsider the risk. Secondly, Sedam was required to appear weekly and was not required to do so previously. We do not consider these new conditions unreasonable but do consider them a material change to the bond. This court has previously stated that a material change may be defined as “a change that a careful and prudent person would regard as substantially increasing the risk of loss. [Citation omitted.]” First Nat'l Bank of Anthony, 18 Kan. App. 2d at 521. The risk here increased for Warfield.
Here, the fact remains that Sedam’s bond was revoked for his violations of the conditions imposed by pretrial services. He disappeared after giving a positive urine sample to pretrial services. An additional obligation in this case materially changed the bond conditions. Under the terms of the bond agreement, if the conditions of the bond are modified, the bond agreement is null and void. See State v. Chappell, 11 Kan. App. 2d 546, 548, 729 P.2d 1241 (1986).
By reinstating a forfeited bond with new conditions with no notice to the surety, the court in fact rewrote the bond and gave the surety no opportunity to evaluate whether he wanted to assume the increased risk of forfeiture. Imposing a money judgment under such facts is an abuse of discretion.
Reversed and remanded with directions to vacate the judgment against the surety. | [
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Hill, J.:
This case was first before us as an interlocutory appeal. It now returns as an appeal by the State from the dismissal of the charge against Emily White because she was not brought to trial within the statutory time limit. Ordinarily a defendant must be brought to trial within 180 days of arraignment, but that requirement abates during an interlocutory appeal. The time period starting when the State files its notice of appeal until the trial court receives the mandate from the appellate court does not count against the State. Subsequently, the time begins to run again. Thus, the State in this case is responsible for the lapse of time after the appellate mandate was filed and the new trial date, resulting in 210 total days of delay. Accordingly, we affirm.
Facts and Procedural Background
Emily White was arrested for driving under the influence. She was arraigned on June 18, 2003, and a trial was set for August 1, 2003. White filed a motion to suppress, which was granted. The State then pursued an interlocutory appeal. This court reversed the district court’s ruling in an unpublished decision, State v. White, Case No. 91,459, filed May 28, 2004. We remanded for further proceedings before a different judge.
The district court received the mandate from the Clerk of the Appellate Courts on July 2, 2004. The case was transferred to a different judge and set for trial on November 9, 2004. White filed a motion to dismiss for violation of her speedy trial rights under K.S.A. 2004 Supp. 22-3402 because she was not brought to trial within 180 days. The district court granted the motion.
Analysis
This case involves the interpretation and application of K.S.A. 2004 Supp. 22-3402, which sets speedy trial requirements, and K.S.A. 22-3603, which permits interlocutory appeals; therefore, our standard of review is unlimited. Furthermore, an appellate court is not bound by the district court’s interpretation of a statute. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
According to K.S.A. 22-3604(2), the time during which an interlocutory appeal by the prosecution under K.S.A. 22-3603 is pending is not counted for the purpose of determining whether a defendant is entitled to discharge for the State’s failure to provide a speedy trial under K.S.A. 2004 Supp. 22-3402. Furthermore, in State v. Brown, 263 Kan. 759, 762-63, 950 P.2d 1365 (1998), the Supreme Court held that the statutory speedy trial provisions are tolled from the time the State files a timely notice of interlocutory appeal to the time the mandate is received by the trial court.
The State contends it is not responsible for the 130 days between the filing of the mandate, July 2, 2004, and the trial date, November 9, 2004. The State argues this time is chargeable to the defendant because the appeal was a delay caused by her suppression motion that was erroneously granted by the district court. The State argues that the defendant is responsible for all “reasonable time” required to bring the defendant back to trial, including the time to reschedule the trial after the mandate was issued.
This argument ignores the clear ruling in Brown, “that from the time the State files its timely notice of interlocutory appeal, pursuant to K.S.A. 22-3603, the statutory speedy trial provisions are tolled until the mandate is received by the trial court.” (Emphasis added.) 263 Kan. at 762-63. Obviously, the time starts to count again against the State after that filing.
The district court did not err in finding the defendant’s speedy trial rights were violated, where 210 days, all chargeable to the State, passed between her arraignment and trial.
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Green, J.:
William David Kimbrell (David) appeals the trial court’s decision regarding parenting time with his 16-year-old son Evan Kimbrell. The issue in this case is whether the trial court can condition a noncustodial parent’s right to parenting time with his or her minor child upon the desires of the child. We determine that this cannot be done. K.S.A. 2004 Supp. 60-1616(a) makes it clear that a parent has a right to reasonable parenting time with his or her minor child “unless the court finds, after a hearing, that the exercise of parenting time would seriously endanger the child’s physical, mental, moral or emotional health.” Conditioning parenting time on the wishes of a minor child improperly gives the child the authority to determine a noncustodial parent’s rights to parenting time and visitation and can have the effect of completely denying the noncustodial parent’s rights to parenting time.
Under the facts of this case, we determine that in the absence of a finding that parenting time “would seriously endanger the child’s physical, mental, moral or emotional health,” the trial court must set a reasonable and specific schedule for David’s parenting time with Evan. Accordingly, we reverse in part and remand to the trial court with directions to either determine an appropriate and reasonable parenting time and visitation schedule or make tire required statutory finding that the exercise of parenting time in this case would seriously endanger tire child’s physical, mental, moral, or emotional health.
The parties, David Kimbrell and Janet Bouley, formerly known as Janet Kimbrell, divorced in April 1996, after nearly 16 years of marriage. The parties had three children together, Anna Kimbrell (date of birth 04/18/81), Dylan Kimbrell (date of birth 09/05/86), and Evan (date of birth 10/09/88). At present, Evan is the only minor child involved in this case.
At the time of their divorce, David and Janet entered into a mediated agreement, where they agreed to joint custody of their children and a shared parenting time arrangement. Apparently, about 6 months after the divorce, Janet and David resumed their relationship, but it was bumpy over the next several years. They ended their relationship in May 2000.
In July 2001, David moved to modify the 1996 divorce decree and for an emergency change of placement for Dylan and Evan. In his motion, David asked that he be given residential custody of Dylan and Evan, that the trial court order strict supervision of Janet’s contact with the boys, and that the trial court order a psychological evaluation of Janet, Dylan, and Evan to determine whether Janet was alienating the children from him. David maintained that Janet had “commenced a program and concerted effort to alienate the three children” from him and that she had interfered with his visitations and the parenting time and visitation schedule. At David’s request, these motions were dismissed in March 2002.
For summer 2001, the parties agreed to a split parenting arrangement where the children would essentially spend alternating weeks with each parent. In addition, the parties agreed to participate in psychological evaluations and testing. The agreed parenting plan was to continue until psychological evaluations and reports were completed.
Upon agreement by the parties, the trial court appointed Susan Vorhees, Ph.D., to conduct evaluation and testing of the parties and their minor children. Although David later moved for a protective order to prohibit the dissemination of Dr. Vorhees’ proposed report, the trial court ordered that Dr. Vorhees’ evaluation be provided to the court. Dr. Vorhees’ report, which was filed in December 2002, indicated that David was alienated from his children due to his own behavior. According to Dr. Vorhees, “[David] is alienated from them by his own inability to accept that they and their mother are independent individuals, that they need and want a relationship with both parents, and that he cannot be in control of either of these relationships.” Dr. Vorhees indicated that David’s alienation from the children could be resolved by David faying to accept his children for who they are and by fastening to his children.
The trial court, on its own motion, appointed retired District Court Judge James Buchele as the case manager in January 2002. The trial court’s decision in this case indicates that the parties had been voluntarily working with Judge Buchele since October 2001. Judge Buchele recommended in January 2002 that the children reside with Janet and that David’s parenting time be “as approved by the Case Manager or as ordered by the Court.” David moved for review of these recommendations and also for ah order for family therapy and other relief.
In February 2002, Judge Buchele made additional recommendations, including that Dylan and Evan be with David on Wednesdays after school until 8 p.m. and on alternating Saturday and Sunday afternoons. Judge Buchele again made recommendations in March 2002. Judge Buchele recommended that David spend a week during spring break with Evan and that the parties participate in family counseling with Michael Lubbers, Ph.D. At that time, Dylan and Evan were seeing Dale Bamum, Ph.D., and Janet and David were each working with a mental health professional. David objected to both the February 2002 and March 2002 recommendations.
On June 12, 2002, Judge Buchele submitted his report and recommendations and also responded to David’s objections. In his report, Judge Buchele addressed David’s allegations that Janet had alienated Dylan and Evan. Judge Buchele’s opinion was that Dylan’s and Evan’s alienation from David was caused by David’s own conduct. Nevertheless, Judge Buchele was encouraged by the fact that David had spoken with Dr. Bamum and had agreed to work on a new approach to communicating with Evan.
In his report, Judge Buchele recommended modification of the existing parenting plan. Judge Buchele expanded David’s parenting time with Evan, setting forth specific times that Evan would spend with David. Judge Buchele’s recommendations assumed there would be some change in the status quo. Judge Buchele recommended that David’s parenting time with Dylan be “as they may agree.”
After David and Janet separately filed objections to Judge Buchele’s recommendations, Judge Buchele issued a supplemental re port on June 27, 2002. Judge Buchele indicated that the brief attempt to expand David’s parenting time with Evan had been disastrous. Judge Buchele concluded that the problems in this case could not be resolved by additional time being spent between Evan and his father. Judge Buchele recommended that Evan be with David on Wednesdays from 4 to 8 p.m. and for one 24-hour period every weekend. Both David and Janet objected to Judge Buchele’s June 27, 2002, supplemental report and recommendations.
In November 2002, upon David’s motion, the trial court appointed Dr. Richard Gardner, M.D., to conduct a parental alienation syndrome (PAS) evaluation of the family. The trial court terminated its order for counseling with Dr. Lubbers but ordered Dylan and Evan to continue therapy with Dr. Barnum. Moreover, the trial court ordered that the contact between Evan and David continue under the current arrangement and that the contact between Dylan and David be as Dylan desired.
Dr. Gardner completed the PAS evaluation and filed a written report in January 2003. Dr. Gardner found no evidence that the children were suffering from PAS or that Janet was a PAS alienator. Instead, Dr. Gardner indicated that the primary source of the children’s alienation from David was David’s own psychiatric problems, especially his obsessive-compulsive personality disorder and paranoid trends. Dr. Gardner recommended that Janet continue to have primary parenting time with Dylan and Evan, that Janet have primary legal custody, and that the court rescind the order requiring Dylan and Evan to participate in therapy. Dr. Gardner indicated that the family could be helped with appropriate treatment given to David, Dylan, and Evan, but that such treatment should be on a voluntary basis.
In September 2003, David moved for the appointment of another case manager, for an order for the parties and children to participate in therapy, and for an order enforcing the joint decision making required under the parties’ joint custody agreement. Attached to David’s motion were letters from Nancy Hughes, Ph.D., LSCSW, who had conducted an adoption home study with David and his wife, and from John Spiridigliozzi, Ph.D., a licensed psychologist who had been working with David for approximately 3 years. Both Dr. Hughes and Dr. Spiridigliozzi recommended the appointment of a case manager. Moreover, Dr. Hughes indicated that she had read some of the file that David had compiled in this case and that it did not fit with her impression of David.
In November 2003, the trial court appointed William F. Ebert, III, as special master, whose duties included recommending therapy for the parties and their children as well as preparing findings of fact and conclusions of law for the trial court to review if the parties could not agree on child-rearing decisions or therapy.
After meeting with die parties, reviewing the court file, which included the reports issued by the various professionals, reviewing email communication, contacting individuals identified by the parties, and discussing the case with the parties’ attorneys, the special master issued his written report in January 2004. In an order issued in February 2004, the trial court adopted the following proposed conclusions of law of the special master:
“1. If David Kimbrell genuinely desires to re-establish meaningful relationships with his children, it will be necessary for him to participate in individual therapy with a therapist who is knowledgeable about parental alienation syndrome and knowledgeable about parents who are emotionally abusive, especially those with significant psychiatric problems.
“2. If the individual therapy process with David is successful (i.e. if David can be helped to . . . appreciate . . . how he has contributed to the damaged relationships with his children and helped to understand how to modify his expectations and behavior accordingly) then the door should be opened to including Evan and/or Dylan in the therapy process, if they choose to participate (as per Dr. Gardner’s recommendations, §6, Pages 117, 118, Gardner Report).”
David moved for reconsideration of the trial court’s decision or, alternatively, to modify its previous orders. In his motion, David requested specific orders relating to the following: parenting time and visitation, exchanging information regarding the children, counseling, and terminating tire special master’s appointment. In his motion, David argued that there could not be a therapy precondition to his contact with his children. In addition, David argued that the special master’s report was unreliable because it was factually flawed, placed undue reliance on questionable expert opinions, and did not comport with due process.
In a memorandum decision filed in September 2004, the trial court granted in part and denied in part David’s motion. The trial court concluded:
“l.Based upon the case history, recommendations filed with the court, and the lack of any success with court-ordered therapy, the court will not order any of the parties in this case to participate in therapy. However, the court concurs with the special master s recommendation that Respondent participate in therapy to attempt to gain some insight into his relationship with his biological children and that any of his children participate in that therapy as they would like.
“2. Dylan, DOB 09/05/86, is now eighteen. His parenting time is no longer under the jurisdiction of this court.
“3. Evan, DOB 10/09/88, is almost sixteen. His parenting time with his father, given his maturity and the history of this case, should be as is mutually requested.”
In addition, the trial court directed David and Janet to meet on a quarterly basis with their attorneys and the special master “to exchange information about the general health, welfare, and education of the minor child.” The trial court stated that Janet had the right to make the necessary day-to-day decisions for Evan. The trial court noted that David’s contact with Evan was not contingent upon David participating in therapy but was “contingent upon the contact being mutually requested.”
Standard of Review
In reviewing the trial court’s decision, we bear in mind that the judgment of the trial court regarding parenting time and visitation will not be disturbed absent an affirmative showing of abuse of discretion. See Skillet v. Sierra, 30 Kan. App. 2d 1041, 1048-49, 53 P.3d 1234, rev. denied 275 Kan. 965 (2002); In re Marriage of McNeely, 15 Kan. App. 2d 762, 764, 815 P.2d 1125, rev. denied 249 Kan. 776 (1991). “Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. [Citation omitted.]” Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002). However, “if a constitutional or statutory right has been violated, tire trial [court’s] use of discretion is limited. Under these circumstances there is a greater need for articulation by the trial [court] of the reasons for [its] ‘discretionary’ decision.” Saucedo v. Winger, 252 Kan. 718, 731, 850 P.2d 908 (1993).
Moreover, the arguments raised by David require this court to review the factual findings and legal conclusions in the trial court’s September 2004 memorandum decision. The function of an appellate court is to determine whether the trial court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). An appellate court’s review of conclusions of law is unlimited. Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d 214 (2004).
Due Process
David first argues that the trial court’s decision infringes upon his parental rights without any showing that he is an unfit parent or that he presents any threat or danger to his child. David maintains that the trial court’s decision results in a denial of due process.
It is well established that parents have fundamental rights in the custody and control of their children under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See, e.g. Troxel v. Granville, 530 U.S. 57, 65-66, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000). In In re Cooper, 230 Kan. 57, 64, 631 P.2d 632 (1981), our Supreme Court stated: “Virtually all jurisdictions including Kansas recognize the parents’ rights of custody and control of their children are liberty interests protected by the Fourteenth Amendment Due Process Clause.” Moreover, in In re Adoption of B.M.W., 268 Kan. 871, 881, 2 P.3d 159 (2000), our Supreme Court recognized that “ ‘ “[bjasic parental rights are fundamental rights protected by the Fourteenth Amendment to the Constitution of the United States. The right to be the legal parent of a child is one of these rights, which cannot be abrogated except for compelling reasons. [Citations omitted.]” ’ ”
Noting that a parent has a right to provide a home and direct the children’s upbringing and education, this court in Spradling v. Harris, 13 Kan. App. 2d 595, 597, 778 P.2d 365, rev. denied 245 Kan. 786 (1989), stated the following:
“The Fourteenth Amendment to the United States Constitution provides: ‘No State shall . . . deprive any person of life, liberty, or property, without due process of law.’ A parent’s right to establish a home and direct the upbringing and education of children has long been recognized as a fundamental right protected by the Fourteenth Amendment. [Citations omitted.]”
See also Washington v. Glucksberg, 521 U.S. 702, 720, 138 L. Ed. 2d 772, 117 S. Ct. 2258 (1997) (“[W]e have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specifically protected by the Due Process Clause includes the right[ ] ... to direct the education and upbringing of one’s children.”).
It is unclear whether parents have a specific due process right under the United States Constitution regarding parenting time and visitation with their children. See Rutkin, 3 Family Law and Practice, Child Custody and Visitation §32.09[2], p. 32-268 (MB July 2005) (“Some commentators contend that the noncustodial parent’s right to visit[ation] is a constitutionally protected right. Others find the right to visitation to be among the natural rights of a fit parent.”). Nevertheless, Kansas law as codified in K.S.A. 2004 Supp. 60-1610(a)(2)-(5) and K.S.A. 2004 Supp. 60-1616(a) and (c) malees it clear that parents have a right to parenting time and visitation with their children, absent exceptional circumstances, such as a threat to the children’s welfare. This is in line with other jurisdictions which recognize that noncustodial parents have a natural right to visitation with their children. See Maxwell v. LeBlanc, 434 So. 2d 375, 376 (La. 1983) (right of visitation for noncustodial parent is natural right); Kulla v. McNulty, 472 N.W.2d 175, 182 (Minn. App. 1991) (“ ‘[Visitation is to be regarded as a parental right essential to the continuance and maintenance of a child-to-parent relationship between the child and noncustodial parentf.]’ ”); Young v. Young, 212 App. Div. 2d 114-122, 628 N.Y.S.2d 957 (1995) (visitation is joint right of noncustodial parent and child); Pettry v. Pettry, 20 Ohio App. 3d 350, 352, 486 N.E.2d 213 (1984) (noncustodial parent’s visitation right is natural right and should only be denied under extraordinary circumstances).
K.S.A. 2004 Supp. 60-1616(a)
Under K.S.A. 2004 Supp. 60-1616(a), “[a] parent is entided to reasonable parenting time unless the court finds, after a hearing, that the exercise of parenting time would seriously endanger the child’s physical, mental, moral or emotional health.”
In interpreting K.S.A. 2004 Supp. 60~1616(a), we note that an appellate court’s review of statutory interpretation, which is a question of law, is unlimited. The appellate court is not bound by the trial court’s interpretation of a statute. See Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). Moreover, the following principles are helpful in our interpretation of K.S.A. 2004 Supp. 60-1616(a):
“The fundamental rule of statutory construction to which all other rules are subordinate 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. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.]” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
The clear intent of K.S.A. 2004 Supp. 60-1616(a) is to create a rebuttable presumption that a parent is entitled to reasonable parenting time and visitation. This presumption may be rebutted if, after a hearing, the trial court finds “that the exercise of parenting time would seriously endanger tire child’s physical, mental, moral or emotional health.” K.S.A. 2004 Supp. 60-1616(a); see In re Marriage of Kiister, 245 Kan. 199, 201, 777 P.2d 272 (1989). Without such a finding, however, K.S.A. 2004 Supp. 60-1616(a) indicates that a trial court must enter an order for reasonable parenting time.
In this case, there was no finding by the trial court that the exercise of parenting time by David would seriously endanger Evan’s physical, mental, moral, or emotional health. Absent this finding by the trial court, David was entitled to reasonable parenting time with Evan under K.S.A. 2004 Supp. 60-1616(a). In fact, the trial court’s September 2004 decision indicated that David should be allowed to have parenting time with Evan. The trial court, however, made David’s parenting time contingent upon Evan’s desires or requests. Our inquiry now turns to whether the trial court’s parenting time finding, which conditioned visitation on Evan’s wishes, improperly impinged on David’s right to reasonable parenting time and visitation.
Trial Court's Order Relating to Parenting Time
David maintains that the trial court erred in giving dispositive effect to Evan’s preference relating to parenting time and visitation. David argues that a court order that places the determination of parenting time with the minor child is improper and is a complete abrogation of judicial authority. David contends that a trial court may either deny parenting time completely in certain exceptional circumstances subject to very high standards or set specific times when a parent may exercise his or her parenting time.
In researching David’s argument, we find no Kansas cases that have addressed the issue of whether a trial court may condition parenting time on the desires or requests of a minor child. David cites to several cases from other jurisdictions which indicate that a court should not give minor children the authority to determine a noncustodial parent’s parenting time and visitation.
In Kreitz v. Kreitz, 750 S.W.2d 681, 686 (Mo. App. 1988), the Missouri Court of Appeals held that it was improper for the trial court in a divorce decree to award the father visitation rights and temporary custody “as arranged to by the minor children.” In remanding the case to the trial court, tíre appellate court noted that the order entered by the trial court did not set forth certain and reasonable rights of visitation. The court further stated that in the absence of finding the father to be an unfit parent, “the trial court should encourage a continued relationship between the divorced parent and child by ensuring that the parent has a right to reasonable access to the child. [Citation omitted.]” 750 S.W.2d at 686. Similarly, in Jordan v. Jordan, 288 App. Div. 2d 709, 709-10, 732 N.Y.S.2d 478 (2001), the court determined that visitation should not have been based upon the children’s wishes, in the absence of evidence that significant emotional harm would result to the children from visitation.
In Morgan v. Morgan, 20 N.C. App. 641, 642, 202 S.E.2d 356 (1974), the North Carolina Court of Appeals held that it was im proper for the trial court to order that the father s visitation rights would be subject to the mother’s consent and would be discretionary with tire child. In vacating the trial court’s judgment, the North Carolina Court of Appeals stated: “While we realize that the preferences of a 14 year old are entitled to some weight in determining custody and visitation rights, it is error to allow the minor to dictate, at will from time to time, whether the judgment of the court is to be honored.” 20 N.C. App. at 642.
The holdings from Kreitz, Jordan, and Morgan indicate that a trial court’s orders regarding parenting time and visitation should not be conditioned upon a minor child’s desires to see (or not see) the noncustodial parent. We find these cases to be persuasive. The dissent cites to Jabri v. Jabri, 193 App. Div. 2d 782, 783-84, 598 N.Y.S.2d 535 (1993), where the appellate court upheld a ruling conditioning visitation on the wishes of a 16-year-old child where psychiatric testimony indicated that compulsory visitation would not be in the child’s best interests. Nevertheless, Jabri is distinguishable because there was no mention within that case that the court’s order of visitation was constrained by a statute similar to K.S.A. 2004 Supp. 60-1616(a). More important, in that case, there was evidence to support a possible “endangerment” and a finding that visitation would not be in the child’s best interest.
Here, the parenting time and visitation order must comply with K.S.A. 2004 Supp. 60-1616(a). The order entered in this case gives the minor child the authority to determine the noncustodial parent’s parenting time and can have the effect of denying the noncustodial parent his or her right to parenting time. See Nancy E.M. v. Kenneth D.M., 316 Pa. Super. 351, 353, 357, 462 A.2d 1386 (1983) (ordering visitation at desire of 17-year-old child is tantamount to denying a parent’s visitation rights). Without a finding that “the exercise of parenting time would seriously endanger the child’s physical, mental, moral or emotional health” under K.S.A. 2004 Supp. 60-1616(a), such orders are improper.
In his brief, David has informed us that he has not had any parental contact with Evan since late 2002. If this is in fact the case, David has been effectively denied any parenting time with Evan. With no statutory finding that David’s parenting time would seriously endanger Evan, the trial court should have ordered certain and reasonable parenting and visitation times in order to ensure that David would have the opportunity to exercise his parenting time rights. The trial court improperly made David’s parenting time with Evan contingent on Evan’s desires or requests to see his father.
We wish to make clear that the above analysis does not preclude the trial court from considering a child’s desires when setting a parenting time and visitation schedule. In fact, K.S.A. 2004 Supp. 60-1610(a)(3)(B) states that “[i]n determining the issue of child custody, residency, and parenting time, the court shall consider all of the relevant factors, including but not limited to: . . . (iii) the desires of the child as to the child’s custody or residency.” Under our applicable statutes, a child’s desires is only one of the factors to be considered when determining the issue of parenting time and visitation. Noting that a court may consider a child’s wishes concerning visitation but that such wishes are not controlling even in jurisdictions that afford great weight to an older child’s preference, Professor Linda Henry Elrod, in Rutkin, 3 Family Law and Practice, Child Custody and Visitation §32.09[3][c], pp. 32-278 to 32-279 (MB July 2005), cautioned:
“As with awarding custody, the court may consider the child’s wishes as to visitation. The court must balance its parens patriae role with its recognition of the importance of respecting the child’s wishes. The weight to be given the child’s preference depends upon the child’s age and maturity. Even in jurisdictions that give great weight to the preferences of older children, the children’s wishes are not controlling.
“Courts are reluctant to put too much weight on the child’s desires as to visitation because the child’s immature emotions or the custodial parent’s disparaging comments about the other parent may form the basis for the child’s feelings.”
Here, the trial court should consider Evan’s wishes when setting a parenting time schedule. Nevertheless, this cannot be the exclusive factor. In pointing out that children are more interested in their momentary desires than the long-range needs for developing a healthy relationship with both parents, the Mississippi Court of Appeals stated:
“ ‘While there is nothing wrong with the children being heard regarding their wishes, our law proceeds on the assumption that they are nevertheless children and, thus, more interested in the desire of tire moment tiran in considering the long range needs for tire development of a healthy relationship with both parents where that is possible.’ [Citation omitted.]” Ellis v. Ellis, 840 So. 2d 806, 813 (Miss. App. 2003).
Consequently, in the absence of a finding under K.S.A. 2004 Supp. 60-1616(a) that “the exercise of parenting time would seriously endanger the child’s physical, mental, moral or emotional health,” the trial court should have set forth certain and reasonable times for David’s parenting time with Evan. See Rutldn, 3 Family Law and Practice, Child Custody and Visitation § 32.09[5], p. 32-294 (MB July 2005) (“The visitation schedule should be detailed, taking into consideration the needs and desires of both parents and child.”). The trial court should not have conditioned David’s parenting time with Evan upon Evan’s desires or requests to see his father.
Nevertheless, despite the clear statutory language of K.S.A. 2004 Supp. 60-1616(a) entitling a parent to reasonable parenting time, the dissent says that the trial court’s parenting time order, conditioning the parenting time on tire child’s wishes, will suffice. The dissent argues for an unstated statutory purpose. In essence, the dissent would have us rewrite the plain language of K.S.A. 2004 Supp. 60-1616(a) to validate the parenting time order issued in this case. Nevertheless, our course must be directed by Kansas law.
To illustrate tire lack of logic behind the dissent’s argument, we will examine it in the form of a categorical syllogism:
Major Premise: All noncustodial parents, possessing an obsessive and compulsive personality disorder, may have their reasonable parenting time conditioned on the wishes of their children.
Minor Premise: Appellant is a noncustodial parents who has an obsessive and compulsive personality disorder.
Conclusion: Therefore, appellant may have his or her reasonable parenting time conditioned on the wishes of his or her children. Although this syllogism is logically correct, the rule established by it is logically inconsistent with K.S.A. 2004 Supp. 60-1616(a).
Step One
Major Premise: If noncustodial parents are entitled to reasonable parenting time, their exercise of parenting time will not seriously endanger their children’s physical, mental, moral, or emotional health.
Minor Premise: The noncustodial parent is entitled to reasonable parenting time.
Conclusion: Therefore, the noncustodial parent’s exercise of parenting time will not seriously endanger his or her children’s physical, mental, moral, or emotional health.
Step Two
Major Premise: If noncustodial parents are entitled to reasonable parenting time, their parenting time should not be conditioned on the wishes of their children.
Minor Premise: The noncustodial parent is entitled to reasonable parenting time.
Conclusion: Therefore, the noncustodial parent’s parenting time should not be conditioned on the wishes of his or her children.
We know that both of these major premises in our last two syllogisms are legally sound because they are based on K.S.A. 2004 Supp. 60-1616(a) and on the persuasive holdings in Kreitz, Jordan, Morgan, and Nancy E.M. The conclusions in these syllogisms conflict with the conclusion from the first syllogism. How do we have these logically sound syllogisms resulting in conflicting conclusions? The flaw lies in the major premise of the first syllogism. The major premise of the first syllogism is overbroad, is unsupported by statute, and rejects the clear statutoiy language of K.S.A. 2004 Supp. 60-1616(a).
K.S.A. 2004 Supp. 60-1616(a) preserves and promotes the comprehensive purpose of allowing reasonable parenting time to a noncustodial parent unless the court finds, after a hearing, that reasonable parenting time would seriously endanger the child’s physical, mental, moral, or emotional health. Here, die trial court made no such factual finding that visitation would seriously endan ger Evan’s physical, mental, moral, or emotional health. Moreover, the dissent concedes that the trial court never made such a factual finding.
The dissent’s argument presents a narrow question in this case: What did our legislature mean when it used the phrase “entitled to reasonable parenting time” in enacting K.S.A. 2004 Supp. 60-1616(a)? As a verb, “entitled” means “[t]o furnish with a right.” Webster’s II New College Dictionary 376 (2001). The word “entitled” follows the noun “parent” in K.S.A. 2004 Supp. 60-1616(a). Clearly, the legislature intended to furnish the right of reasonable parenting time to a parent. The dissent is not concerned that K.S.A. 2004 Supp. 60-1616(a) does not contain the words “which may be conditioned on the child’s wishes” after the statutory phrase “[a] parent is entitled to reasonable parenting time . . . .”
Although the clear statutory language of K.S.A. 2004 Supp. 60-1616(a) confers reasonable parenting time to a parent, the dissent would supplant a parent’s statutory right to reasonable parenting time with that of the child’s wishes. As we stated previously, the trial court may consider a child’s wishes when setting a parenting time schedule. Nevertheless, this must not be the exclusive or controlling factor. Otherwise, the result advocated by the dissent would stymie the clear statutory mandate of K.S.A. 2004 Supp. 60-1616(a). For example, if children are given the option of determining what reasonable parenting time is, the statutory mandate under K.S.A. 2004 Supp. 60-1616(a) becomes meaningless. See In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002) (It is presumed that the legislature does not intend to enact useless or meaningless legislation.).
The dissent’s support for this unstated statutory purpose distorts the basic canons of statutory inteipretation. As noted previously, “[t]he legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed. . . . [Citation omitted.]” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). Furthermore, in interpreting statutes, “ordinary words are to be given their ordinary meaning, and a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. [Citation omitted.]” Dawson v. Prager, 276 Kan. 373, 383, 76 P.3d 1036 (2003). The plain and simple language of K.S.A. 2004 Supp. 60-1616(a) provides noncustodial parents with a presumptive right to reasonable parenting time.
K.S.A. 2004 Supp. 60-1616(a) allows only one statutory exception to requiring a trial court to award reasonable parenting time: when the trial court finds, after a hearing, that reasonable parenting time would seriously endanger the child’s physical, mental, moral, or emotional health. K.S.A. 2004 Supp. 60-1616(a) expressly makes a finding of endangerment a condition precedent to restricting the reasonable parenting time of a noncustodial parent. As stated previously, the trial court made no such factual finding in this case. In fact, the trial court’s parenting time order allowing visitation between David and Evan implicitly indicates that the parenting time between them would not seriously endanger Evan’s “physical, mental, moral or emotional health.” The statutory exception to granting reasonable parenting time under K.S.A. 2004 Supp. 60-1616(a) was never fulfilled. Moreover, the presumption under K.S.A. 2004 Supp. 60-1616(a) that David was entitled to reasonable parenting time with Evan went unrebutted. As a result, the trial court had no statutory authority to restrict David’s reasonable parenting time with Evan in the way that it did.
Finally, the dissent concludes by stating that “[t]he district court’s parenting time order was not arbitrary, fanciful, or unreasonable.” Assuming arguendo that the trial court had the statutory authority under K.S.A. 2004 Supp. 60-1616(a) to restrict David’s parenting time as it did, the trial court abused its discretion in entering its order. Neither the trial court nor the dissent points to any evidence in the record to show that Evan and David would have engaged in any type of reasonable parenting time on their own. Moreover, in his brief, David states that he has not had any parental contact with Evan since late 2002. Thus, the trial court’s parenting time order, if it was not based on evidence that David and Evan would exercise reasonable parenting time on their own, was completely hollow.
On the other hand, the dissent implies that “if Evan [had] repeatedly refused David’s requests for reasonable parenting time,” David could ask the trial court to modify its order under K.S.A. 2004 Supp. 60-1616(c). Subsection (c) gives the trial court authority to modify an order granting or denying parenting time or visitation rights if the modification would be in the best interests of the child. Nevertheless, if David sought relief under K.S.A. 2004 Supp. 60-1616(c), he would have to move for modification of the parenting time order. In addition, David would have the burden of proof on this motion. David would have to convince the trial court that it would be in the best interests of Evan to modify the current parenting time order. How does David go from enjoying an unrebutted presumption that he is entitled to reasonable parenting time to a situation where the burden would be shifted to him? What is the legal justification for this burden shift? The dissent offers none. Under K.S.A. 2004 Supp. 60-1616(a), the burden does not shift back and forth.
As a result, the parenting time order was not reasonable based on the existing facts of this case. The result advocated by the dissent is not warranted under Kansas law. Based on the trial court’s failure to comply with K.S.A. 2004 Supp. 60-1616(a), we determine that the trial court abused its discretion in its order of parenting time and visitation. See Unwitting Victim v. C.S., 273 Kan. 937, 944, 47 P.3d 392 (2002) (“ ‘An abuse of discretion occurs where the district court clearly erred or ventured beyond the limits of permissible choice under the circumstances.’ ”). Accordingly, we reverse the trial court’s order and remand the case with directions to either set an appropriate and reasonable parenting time and visitation schedule or make the required statutory finding that the exercise of David’s parenting time would seriously endanger Evan’s physical, mental, moral, or emotional health.
Therapy Precondition to David’s Parenting Time
Next, David argues that the trial court erred by effectively imposing a therapy precondition to his contact with Evan. Nevertheless, in its September 2004 memorandum decision, the trial court made clear that it was not imposing a therapy precondition to Da vid’s contact with Evan. The trial court specifically stated: “Respondent’s contact with Evan, his almost sixteen year old son, is not contingent upon Respondent’s participating in therapy. It is, however, contingent upon said contact being mutually requested.” (Emphasis added.) Based on this clear language in the trial court’s order, we determine that David’s argument is meritless.
Special Masters Report
Finally, David raises the following additional arguments on appeal: (1) The trial court erred in relying on the special master’s report that was factually flawed; and (2) the trial court erred in relying on the special master’s report that placed excessive reliance on questionable expert opinions. Because we have reversed the trial court’s order and have remanded the case for the trial court to set an appropriate and reasonable schedule for parenting time and visitation, it is unnecessary to address these additional arguments.
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Marquardt, J.:
Alton O. Gurganus appeals the trial court’s denial of his motion for termination and reimbursement of military retirement benefits paid to his ex-wife, Kimberley Rae Gurganus, as property settlement pursuant to a settlement agreement. We affirm in part, reverse in part, and remand with directions.
Alton and Kimberley Gurganus were married on July 23, 1987. Kimberley filed for divorce on June 27, 1996. The trial court granted the divorce on January 6, 1997. The trial court incorporated the parties’ settlement agreement in its journal entry of divorce.
The agreement stated, in relevant part:
“3. SPOUSAL MAINTENANCE/ALIMONY: The January, 1997 temporary alimony installment shall be the final alimony installment due and payable by Respondent to the Clerk of the District Court. The allocation of one-half of the military retirement pay to Petitioner Kimberley Gurganus shall be intended to substitute for formal spousal support payments, and are critical to the ongoing support needs of Petitioner’s family unit.
“4. MILITARY RETIREMENT: The Court awards to Petitioner Kimberley Gurganus one-half (50%) of Respondent Alton O. Gurganus’ military retirement pay. Such division should be implemented by Qualified Domestic Relations Order or other such document which will effectuate the Court’s order. One-half of the monthly military retirement pay of Respondent shall be set aside and sent by the payor to Kimberley Gurganus, and the remaining half shall be sent to the Respondent. The Court retains jurisdiction to enter appropriate Orders in the future to carry out this provision.”
The militaiy retirement benefits are not mentioned anywhere else in the decree. An income withholding order was filed on April 17, 1997, which ordered monthly payments to Kimberley from Alton’s military retirement pay of $474 for child support, $500 for maintenance, and $26 for child support and maintenance arrearages.
On September 21, 2004, Alton filed a motion to terminate child support and Kimberley’s maintenance payments from his military retirement benefits. He also requested reimbursement for overpayment of child support and “overpayment from military retirement in lieu of spousal maintenance.” Alton argued that the chil dren ceased living with Kimberley in August 1997; therefore, a “family unit” no longer existed and Kimberley did not have a “critical need” for support after that date. Alton also claimed that Kimberley was not entitled to spousal maintenance because military retirement benefits are not considered part of marital property unless the parties had been married for 10 years or more. In an affidavit filed on November 1, 2004, Alton stated it was always his understanding that the deductions from his militaiy retirement benefits were for spousal maintenance.
The parties presented oral arguments regarding the motion. Alton asserted that according to 10 U.S.C. § 1408(d)(2) (2000), one-half of his military retirement benefits could not be deducted as property because he and Kimberley had not been married for 10 years while he was in the service. If the payments were treated as spousal maintenance, Alton asserted that he was entitled to a reimbursement because the children had not lived with Kimberley from August 1997 to the summer of 2003. Alton maintained that he had attempted to terminate the maintenance payments, but the militaiy told him that the change of custody information from Oklahoma was not enough to terminate the payments. Kimberley responded that the military retirement benefits were considered marital property in the settlement agreement, and 10 U.S.C. § 1408(d)(5) granted the trial court the authority to enter an order dividing the military retirement pay.
The trial court determined that under 10 U.S.C. § 1408, the income withholding order for Alton’s military retirement pay should not have been filed. Therefore, the trial court ordered the withholding to cease. The trial court then found that under the terms of the parties’ settlement agreement, the military retirement pay was marital property, and the parties intended to set aside one-half of the payments for Kimberley. The trial court stated that it did not have jurisdiction to modify the agreement and ordered Alton to pay one-half of his retirement pay directly to Kimberley. Finally, because the trial court determined that Alton’s retirement benefits were marital property, there was no overpayment. An order terminating the militaiy retirement income withholding order was filed on December 3, 2004.
Alton filed a timely notice of appeal. Alton contends that the trial court erred when it ruled the deduction from his military retirement benefits was property and not spousal maintenance. Even though Alton claims he always understood that the deductions from his military retirement benefits were for spousal maintenance, he claims that Kimberley was not entitled to spousal support because: (1) 10 U.S.C. § 1408(d)(2) requires that the parties had to be married for 10 years before Kimberley would be entitled to maintenance payments; (2) Kimberley did not have a “family unit” with “critical ongoing needs” from August 1997 to present; and (3) the separation agreement is invalid because the parties did not come to a “meeting of the minds.”
Kimberley counters that the journal entry which incorporated their settlement agreement shows the parties intended the military retirement pay to be marital property and, therefore, the trial court did not err in determining that it did not have jurisdiction to hear a modification of issues settled in the agreement.
Appellate courts apply an abuse of discretion standard in a divorce action when reviewing a trial court’s determination of issues, including maintenance, settled by an agreement that has been incorporated into the decree. See In re Marriage of Bowers, 23 Kan. App. 2d 641, 643, 933 P.2d 176 (1997). Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002).
Jurisdiction is a question of law over which this court possesses unlimited review. Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005).
“If die parties have entered into a separation agreement which the court finds to be valid, just and equitable, the agreement shall be incorporated in the decree. . . . Matters settled by an agreement incorporated in the decree, other than matters pertaining to the legal custody, residency, visitation, parenting time, support or education of the minor children, shall not be subject to subsequent modification by the court except: (A) As prescribed by the agreement or (B) as subsequently consented to by the parties.” K.S.A. 2004 Supp. 60-1610(b)(3).
A trial court does not have subject matter jurisdiction to modify a maintenance agreement if the agreement specifies the only man ner by which it can be modified. See In re Marriage of Jones, 22 Kan. App. 2d 753, 764, 921 P.2d 839, rev. denied 260 Kan. 993 (1996).
Here, the trial court determined that the parties’ settlement agreement was fair and equitable, and the agreement provided that “[n]o modification or waiver of any terms of this agreement shall be valid unless in writing and executed with the same formality as this agreement.” The parties have not executed a modification of the agreement. Thus, the trial court did not, and this court does not, have jurisdiction to modify its terms.
Alton argues that the agreement is ambiguous as to whether the payment of his retirement benefits constitutes spousal maintenance or property division. “The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. [Citation omitted.]” Unran v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001).
If the terms of a contract are clear and unambiguous, the contract must be given its plain and ordinary meaning. First Financial Ins. Co. v. Bugg, 265 Kan. 690, 694, 962 P.2d 515 (1998). The fundamental rule of construction is that courts will not rewrite a contract by construction if it is clear and unambigous. Thomas v. Thomas, 250 Kan. 235, 244, 824 P.2d 971 (1992).
The language in a contract is ambiguous when the words used to express the meaning and intention of the parties are insufficient, in the sense that the contract may be understood to reach two or more possible meanings. Mays v. Middle Iowa Realty Corp., 202 Kan. 712, 718, 452 P.2d 279 (1969). If a contract is not ambiguous, it must be enforced according to its terms, for the law presumes the parties understood their contract and that they had the intention which its terms import. If the court finds that the contract is unambiguous, the intent of the parties should be determined from a consideration of the instrument itself in its entirety. In re Estate of Murphy, 226 Kan. 424, 427, 601 P.2d 1096 (1979).
We agree with the trial court’s determination that tire settlement agreement was not ambiguous. However, we do not agree with the trial court’s interpretation that Alton’s military retirement benefits were property. In paragraph 1 of the agreement, entitled “Property and Debts,” there is no mention of Alton’s military retirement benefits. The only time that the military retirement benefits are mentioned is in paragraph 3, entitled “Spousal Maintenance/Alimony,” and in paragraph 4, entitled “Military Retirement.” We do not understand how the trial court could have concluded that the military retirement pay was property, and we reverse that finding. Paragraph 3 of the settlement agreement states that Alton’s payment of one-half of his military retirement benefits was “intended to substitute for formal spousal support payments.” These payments to Kimberley were clearly intended to be maintenance, and as such, the payments have tax implications for both parties.
Alton argues that 10 U.S.C. § 1408(d)(2) bars Kimberley from receiving his military retirement pay as spousal support because they were not married for 10 years. According to 10 U.S.C. § 1408(d)(2),
“If the spouse or former spouse to whom payments are to be made under this section was not married to the member for a period of 10 years or more during which the member performed at least 10 years of service creditable in determining die member’s eligibility for retired pay, payments may not be made under this section to the extent that they include an amount resulting from the treatment by the court under subsection (c) of disposable retired pay of the member as property of the member or property of the member and his spouse.”
Kansas has only interpreted 10 U.S.C. § 1408(d) in the context of military retirement pay versus disability pay. See In re Marriage of Wherrell, 274 Kan. 984, 58 P.3d 734 (2002); In re Marriage of Bahr, 29 Kan. App. 2d 846, 32 P.3d 1212 (2001), rev. denied 273 Kan. 1035 (2002); In re Marriage of Pierce, 26 Kan. App. 2d 236, 982 P.2d 995, rev. denied 268 Kan. 887 (1999). Kansas courts have not considered whether military pay can be divided with an ex-spouse in a divorce. Other courts have interpreted this provision as only preventing payments directly from the military. There is no prohibition on the parties contracting to pay an ex-spouse a portion of these payments. See Mansell v. Mansell, 490 U.S. 581, 104 L. Ed. 2d 675, 109 S. Ct. 2023 (1989). 10 U.S.C. § 1408(d)(2) does not prevent a party from agreeing in a separation agreement to pay an ex-spouse a portion of his or her military retirement pay; it merely requires that if not married for 10 years, the retiree must make the payment directly to the ex-spouse, rather than having the government withhold the money and make the payments. Here, Alton agreed to pay Kimberley one-half of his monthly military retirement benefits and he must make those payments to Kimberley himself.
Next, Alton contends that Kimberley has not been entitled to the military retirement payments since August 1997, because the children have not lived with her and, thus, the payments have not been critical to the ongoing support of Kimberley’s family unit. According to the record on appeal, the Gurganuses’ son was emancipated in August 1997, and their daughter lived with Alton from August 1997 to the summer of 2003. The agreement states: “The allocation of one-half of the military retirement pay to Petitioner Kimberley Gurganus shall be intended to substitute for formal spousal support payments, and are critical to the ongoing support needs of Petitioner’s family unit.” This language does not suggest, as Alton argues, that Kimberley’s receipt of the military pay was conditioned upon the children living with her.
Lasdy, Alton contends that he is entided to reimbursement from Kimberley for the military retirement payments she has received thus far. Alton has failed to provide any evidence that Kimberley has received over one-half of his military retirement pay. Thus, the trial court did not abuse its discretion in determining Alton was not entitled to any reimbursement from Kimberley.
Affirmed in part, reversed in part, and remanded with directions to the trial court to designate Alton’s military retirement pay as spousal maintenance. | [
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Standridge, J.:
Brent J. Kraemer was arrested for driving under the influence (DUI) of alcohol after a routine traffic stop for failing to use his turn signal. On appeal, Kraemer makes two arguments. First, he argues the officer did not have probable cause to arrest him. Second, he contends the district court erred in finding the good-faith exception to the exclusionary rule applied after the court determined that his consent to the breath-alcohol test was coerced. For the reasons stated below, we affirm.
Facts
On September 5, 2013, around 2:20 a.m., Officer Randy Con-stantino of the Salina Police Department pulled Kraemer over for failing to use a turn signal while turning. Constantino testified Kraemer appeared very nervous and shaky and stuttered when he spoke. Constantino also noted Kraemer had watery, bloodshot eyes. Constantino smelled alcohol and asked whether Kraemer had anything to drink. Kraemer admitted to having one beer.
Constantino then asked Kraemer to exit the vehicle for field sobriety testing. Although Kraemer did not appear to have difficulty exiting the car, Constantino noted that Kraemer leaned on the rear of the car for support afterward, which Constantino recognized as an indication that Kraemer might be impaired. Constantino also testified to smelling alcohol on Kraemer s breath when standing close to Kraemer.
Constantino first instructed Kraemer on the walk-and-tum test. For the walk-and-tum test, Constantino told Kraemer to take nine heel-to-toe steps down a line, then turn around using a series of small steps, and walk nine heel-to-toe steps back. Constantino demonstrated the test for Kraemer. Constantino instructed Krae-mer to look down at his feet, count out loud tire number of steps, keep his arms at his side, and not stop walking until the task was completed.
Constantino looked for eight indications or clues that a person was impaired on the walk-an,ol-tum test. The first clue was whether the person failed to hold tb,e heel-to-toe position while being instructed. The second clue was whether the person started too soon. Clues during the walk included the person failing to step heel-to-toe, stepping off the fine at any tinie, walking with raised arms, stopping, or making an improper turn.
According to Constantino, the first error Kraemer made on the walk-and-turn test was stepping out of the heel-to-toe position during the instruction stage. Constantino acknowledged that while instructing Kraemer on the test, a cat wandered into the area around Kraemer’s feet. Constantino did not grade the test differently based on the cats presence and removed the cat from the area before Kraemer took the first heel-to-toe step. The cat returned after Kraemer had taken a few steps, and the officer again removed it.
Kraemer’s second error occurred when stepping off the line on step six of the first nine steps. On video footage from Constantino’s police car, Kraemer claims that the cat caused the error, but the video reflects that the cat already had been removed. On step eight of the first nine steps, Kraemer failed to properly step heel-to-toe and again stepped off the line; the officer counted it as missing the heel-to-toe. Constantino also noted that Kraemer made an error in making the turn; Kraemer was instructed to take a series of small steps to turn around but instead took only two steps. Krae-mer made no mistakes when walking back.
Constantino then instructed Kraemer on the one-leg stand test, which requires a person to raise and hold his or her foot extended 6 inches off the ground and count “[o]ne thousand one, one thousand two, one thousand three and so on,” until the officer tells the person to stop. As part of the instructions, Constantino told Kraemer to look down at his extended foot, count out loud, keep his arms to his sides, and keep his legs straight. During this test, Constantino watched for one of four indicators of impairment: putting the foot down, swaying while balancing, putting arms out for balance, or hopping on one foot. Kraemer held the position for 20 seconds before putting his foot down, but the test required him to hold the position for 30 seconds. Although the cat entered the periphery of the video frame while Kraemer was holding his leg up, the cat did not come close to Kraemer. Constantino did not believe the cat interfered with the test. Constantino acknowledged that there were people in the yard nearby but noted that, in administering the field sobriety tests, police look to see whether the person was easily distracted or whether the person could ignore a diversion and pay attention to the task at hand.
Overall, Constantino noted four errors on the walk-and-turn test and one on the one-leg stand test. Based on Constantino’s observations, Kraemer’s admission to drinking alcohol, and Kraemer’s performance on the field sobriety tests, Constantino arrested Kraemer for DUI. After transporting Kraemer to the “intox room” at the jail, Constantino provided Kraemer with a written copy of the required implied consent advisoiy, read the required advisoiy out loud to Kraemer, and then asked Kraemer to submit to a breath-alcohol test. Kraemer indicated he would submit to the test as requested. Test results revealed Kraemers blood-alcohol concentration to be .139, which was above the .08 legal limit for drivers. See K.S.A. 2015 Supp. 8-1567(a)(1). Thereafter, Kraemer was charged with alternative counts of DUI with two prior DUI convictions, driving with a cancelled or suspended license, and improper lane change.
Kraemer filed a motion to suppress the breath-alcohol test results, arguing the officer did not have probable cause to arrest him, which rendered his arrest illegal and any evidence obtained after the arrest inadmissible at trial under the exclusionary rule. The district court held a hearing on the matter on March 4, 2014. Krae-mers attorney argued that the officer did not have probable cause to arrest Kraemer because he had not been driving erratically and his errors on the field sobriety tests were the result of outside interferences during testing. The district court was not pei'suaded by Kraemers argument and found Constantino had probable cause to arrest “based upon the officer’s observations, [Kraemers] admission of drinking alcohol, and [Kraemers] performance on the field sobriety tests.”
After his first motion to suppress was denied, Kraemer filed a second motion to suppress. In this second motion, Kraemer claimed the breath-alcohol test results were obtained in violation of his constitutional rights. Specifically, Kraemer argued his consent to take the breath-alcohol test had been coerced because he was improperly told prior to the request that he could be charged with another crime if he refused testing. After a hearing on March 27, 2014, the district court held the criminal refusal statute to be unconstitutional on its face. Finding Constantino improperly advised Kraemer he could be charged with a separate offense under the criminal refusal statute if he refused testing, the court then held that Kraemers consent was coerced and involuntary under the Fourth Amendment to the United States Constitution. Notwithstanding a finding that Kraemer s consent was coerced, the district court ultimately denied Kraemer s motion to suppress based on its further finding that tire officer acted in good faith in advising Krae-mer that he would be charged with another crime if he refused to take the test. Based on this finding, the court deemed the breath-alcohol test results admissible under the good-faith exception to the exclusionary rule.
The parties agreed to a bench trial on stipulated facts. After reviewing the submitted evidence and statement of stipulated facts, the district court found Kraemer guilty of DUI.
The district court sentenced Kraemer to 12 months in county jail and imposed tire statutory mandatory minimum fine of $1,750. The court then suspended the sentence and placed Kraemer on 12 months’ probation but ordered him to serve the minimum 90 consecutive days in jail before beginning probation.
Analysis
Probable cause
The district court determined that Officer Constantino had probable cause to arrest Kraemer based on the officers observations, Kraemer’s own admission to drinking, and Kraemer’s performance on the field sobriety tests. On appeal, Kraemer contends that when looking at the totality of the circumstances, the officer did not have probable cause to arrest him. We disagree.
When reviewing a motion to suppress evidence, this court reviews the district court s factual findings to determine whether they are supported by substantial evidence. In reviewing the factual findings, this court does not reweigh the evidence, assess the credibility of witnesses, or resolve conflicting evidence. City of Atwood v. Pianalto, 301 Kan. 1008, 1012, 350 P.3d 1048 (2015); State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014). This court then reviews the ultimate legal conclusion—here, whether the officer had probable cause to arrest—independently, without any required deference to the district court. 299 Kan. at 296.
The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures; § 15 of the Kansas Constitution Bill of Rights provides identical protection. State v. Moralez, 297 Kan. 397, 404, 300 P.3d 1090 (2013). To enforce the constitutional provisions, tíiis court must first determine whether a seizure occurred and then determine whether it was reasonable. Reiss, 299 Kan. at 297. A traffic stop is a seizure under the Fourth Amendment; and the officer conducting the stop must have reasonable suspicion, meaning a specific, objective, articulable basis for believing that the person being detained is committing, has committed, or is about to commit a crime. See K.S.A. 22-2402(1); Pianalto, 301 Kan. at 1011; State v. Moore, 283 Kan. 344, Syl. ¶¶ 2, 7, 154 P.3d 1 (2007). A traffic violation is an objectively valid reason to stop and detain someone for a limited duration to check documents and identification, run a computer check, and issue a citation. State v. Jones, 300 Kan. 630, Syl. ¶ 5, 333 P.3d 886 (2014); Moore, 283 Kan. at 350. An officer may extend a traffic stop beyond the time needed to address the traffic violation only if he or she has reasonable suspicion that tire person was or is involved in additional criminal activity. Jones, 300 Kan. 630, Syl. ¶ 6; State v. Pollman, 286 Kan. 881, Syl. ¶¶ 3-5, 190 P.3d 234 (2008).
But to lawfully arrest a person without a warrant, the officer must have probable cause. Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20, 290 P.3d 555 (2012). Probable cause exists when the officers knowledge of tire events creates a reasonable belief that the defendant has committed a specific crime, but it does not require drat the officer have evidence of every element of the crime. Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 515, 242 P.3d 1179 (2010). In evaluating whether an officer has probable cause, the court considers the totality of the circumstances, given ‘“the information and fair inferences therefrom, known to the officer at tire time of the arrest.’” Sloop, 296 Kan. at 20.
Officer Constantino witnessed Kraemer fail to use his turn signal, a traffic law violation, and therefore had valid grounds to pull him over. Upon approaching Kraemer, tire officer smelled alcohol in the car. He testified that Kraemer appeared nervous and shaky and had bloodshot, watery eyes. This gave Constantino reasonable suspicion to extend tire traffic stop to investigate whether Kraemer was driving under tire influence of alcohol. Kraemer does not challenge Constantino’s decision to extend the stop for further investigation; he argues only that tire officer lacked probable cause to later arrest him for DUI.
In finding that the officer had probable cause, the district court discussed (1) the officer’s observation of the odor of alcohol, (2) Kraemers admission to having consumed alcohol, (3) Kraemers leaning on the back of tire car for support, and (4) the cats negligible effect on Kraemers performance on tire field sobriety tests. Krae-mer challenges the district court’s factual findings, arguing that the cats presence invalidated the tests. The district court found that the presence of the cat did not affect the tests because “[t]he cat had been removed before the errors occurred in the walk-and-turn test and the cat was off in the periphery some distance away during the one-leg stand test.” The district court’s finding is supported by substantial evidence. Based on the video, which wé have reviewed, and the officer s testimony, the cat was not near Kraemer when he moved around during the instruction stage, and the officer had removed the cat before Kraemers missteps on step six and step eight and die improper turn. And although die cat reentered the video frame while Kraemer was performing the one-leg-stand test, it was only off in the distance.
Kraemer also asserts that the officer’s instructions were not clear or complete during die walk-and-turn and one-leg-stand tests. In particular, Kraemer argues that the officer should have been more specific about how many small steps to take when turning around on the walk-and-turn test. The video shows the officer took approximately three small steps while demonstrating the move, but Kraemer took only two steps. Perhaps the officer’s instruction and demonstration could have been better, but as long as the officer substantially complies with national guidelines in administering the field sobriety tests, the district court may still consider the officer’s observations in determining whether die officer had probable cause to arrest. See State v. Cox, No. 110,447, 2014 WL 3732019, at 87-8 (Kan. App. 2014) (unpublished opinion) (finding court could consider field sobriety test results even though officer had failed to demonstrate one of the tests and incorrectly demonstrated the other). Kraemer also asserts that the officer should have told him how long he needed to hold the one-leg stand, claiming that “Con-stantino essentially had [him] do the one-leg stand until he failed.” But Constantino testified that the one-leg-stand test requires individuals to hold the position for 30 seconds, which Kraemer was unable to do. See, e.g., Sloop, 296 Kan. at 15.
Finally, Kraemer contends that Constantino did not have probable cause to arrest him because he was not driving erratically, noting that the only reason he was initially stopped was because he had failed to use his turn signal. Certainly, it would be unreasonable for an officer to arrest someone on suspicion of DUI based solely on his or her failure to use the turn signal. But, given the traffic violation, Constantino had valid grounds to pull Kraemer over and, through his interactions with and observations of Kraemer, he developed probable cause to arrest. There is no requirement that the police must observe a person driving erratically to have probable cause to arrest the person for DUI. See, e.g., State v. Duncan, 44 Kan. App. 2d 1029, 1034, 242 P.3d 1271 (2010).
Here, based on the totality of the circumstances, Constan-tino had probable cause to arrest Kraemer for DUI. Prior to arrest, Constantino observed Kraemer had bloodshot, watery eyes; seemed nervous; and smelled of alcohol. Kraemer acknowledged drinking that night and leaned on his car for support. Kraemer made four errors on the walk-and-turn test and one error on the one-leg-stand test when the cat was not close by. For all of these reasons, we conclude the district court properly determined that the officer had probable cause to arrest Kraemer.
Consent, coercion, and the good-faith exception to the exclusionary rule
Under K.S.A. 2015 Supp. .8-1001(a), any person who drives a vehicle in Kansas is deemed to have consented to have his or her blood, breath, urine, or other bodily substances tested for the presence of alcohol or drugs—this is known as the Kansas Implied Consent law. An officer may request a person submit to testing if the officer has reasonable grounds to believe the person was driving a vehicle while under the influence of alcohol or drugs and has lawfully arrested the person for the offense. K.S.A. 2015 Supp. 8-1001(b); see Sloop, 296 Kan. at 17-19. Before the tests are administered, the police must provide the person with a written advisory explaining that Kansas law requires the person to submit to testing, that there is no constitutional right to refuse, and the potential consequences of refusing. K.S.A. 2015 Supp. 8-1001(k) (l)-(4); see K.S.A. 2015 Supp. 8-1025.
In this case, Constantino gave Kraemer a written copy of the required implied consent advisory in effect at the time, which stated—among other things—that if a person refuses to submit to testing and other prerequisites are met, he or she “may be charged with a separate crime . . . which carries criminal penalties equal to or greater than those for the crime of driving under the influence.” K.S.A. 2015 Supp. 8-1001(k)(4). After giving him a written copy, Constantino then read the implied consent advisory to Kraemer out loud. After reading the advisoiy, Constantino then asked Kraemer to submit to a breath-alcohol test. Kraemer consented to submit to the test as requested. As noted above, the test results revealed Kraemer s blood-alcohol concentration to be .139, which is above the .08 legal limit for drivers. See K.S.A. 2015 Supp. 8-1567(a)(1).
Kraemer ultimately moved to suppress the results of the breath-alcohol test on grounds that his consent to submit to testing was coerced and no other recognized exception to a warrantless search applied. As discussed above, the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches and seizures. State v. Powell, 299 Kan. 690, 694, 325 P.3d 1162 (2014); Moralez, 297 Kan. at 404. Subjecting a person to a breath-alcohol test constitutes a search under the Fourth Amendment. See City of Dodge City v. Webb, 50 Kan. App. 2d 393, 396, 329 P.3d 515 (2014) (citing State v. Jones, 279 Kan. 71, 76, 106 P.3d 1 [2005]), rev. granted 302 Kan. 1008 (2015). Thus, subjecting a person to a breath-alcohol test without a warrant is unreasonable unless the search falls within one of the recognized exceptions to the warrant requirement; those include consent, search incident to a lawful arrest, stop and frisk, and probable cause plus exigent circumstances. State v. Overman, 301 Kan. 704, 710, 348 P.3d 516 (2015).
Like he did below, Kraemer argues that no exceptions to the warrant requirement applied in his case. With regard to the State s argument that he consented to take the test, Kraemer asserts the consent was coerced and, thus, involuntary because he gave it only after being told that if he refused he could have been charged with another crime for refusing.
Citing the United States Supreme Courts recent decision in Missouri v. McNeely, 569 U.S. _, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), the district court agreed with Kraemers position. In coming to its decision, the court first found as a matter of law that the criminal refusal statute, K.S.A. 2015 Supp. 8-1025, was unconstitutional because of “its chilling effect upon tire person’s exercise of [his or her] rights against or his [or her] protections against unreasonable searches under tire Fourth Amendment.” Notably, the legal conclusion reached by the district court with respect to the unconstitutional nature of the criminal refusal statute is the same conclusion recently reached by the Kansas Supreme Court in Ryce, 303 Kan. 899. In Ryce, the Kansas Supreme Court found:
"K.S.A. 2014 Supp. 8-1025 punishes an individual for withdrawing his or her consent to a search even though the right to withdraw consent is a corollary to tire constitutional requirement that consent be free and voluntaiy. Thus, K.S.A. 2014 Supp. 8-1025 violates the fundamental right to be free from an unreasonable search. Because a fundamental right is involved, die strict scrutiny standard applies to a due process analysis.” 303 Kan. 899, Syl. ¶ 9.
After applying the strict scrutiny standard of review, the court ultimately held K.S.A. 2014 Supp. 8-1025 is not narrowly tailored to serve the State s interests and thus is unconstitutional on its face. See 303 Kan. 899, Syl. ¶¶ 10-12. Although tire mandate in Ryce has not yet issued, we must accept the Kansas Supreme Courts analysis and its ultimate holding that K.S.A. 2014 Supp. 8-1025 is unconstitutional on its face. Although the reasons for the decision in Ryce could be construed to differ from those of the district court decision in this case, an appellate court can affirm the district court if the court was right for the wrong reason. State v. May, 293 Kan. 858, 870, 269 P.3d 1260 (2012). We, therefore, affirm tire district courts decision finding that K.S.A. 2015 Supp. 8-1025 is unconstitutional on its face.
Based on its finding that K.S.A. 2015 Supp. 8-1025 is unconstitutional, the district court then went on to find that Kraemer s consent to submit to breath-alcohol testing was not voluntary but instead was coerced. On that issue, the district court held that “the implied consent law was not intended to change an otherwise constitutionally defective search into a constitutionally permissive search by implying a consent to a search which otherwise would have to be knowingly, intelligently, and voluntarily consented to.” In facts almost identical to those presented here, the Kansas Supreme Court recently held a suspect’s consent to testing was involuntary because it was obtained by means of an inaccurate and, therefore, coercive advisement. Nece, 303 Kan. 888, Syl. Relying on its holding in Rijce that the criminal refusal statute was unconstitutional, the court in Nece held that consent to testing was not freely and voluntarily given when the consent was given after a written and oral advisory informing the suspect that he or she might be charged with a crime pursuant to an unconstitutional statute. 303 Kan. 888, Syl. Although the mandate in Nece has not yet issued, we must accept the Kansas Supreme Court’s analysis and its ultimate holding that a suspect’s consent to testing is involuntary when it is obtained after an inaccurate written and oral advisory informing the suspect that he or she might be charged with a separate criminal offense bearing penalties equal to or greater than those for the crime of driving under the influence. See 303 Kan. 888, Syl. We, therefore, affirm the district court’s decision finding that Kraemer s consent to submit to breath-alcohol testing was not voluntary but instead was coerced.
Notwithstanding a finding that the criminal refusal statute is unconstitutional and that Kraemer did not voluntarily consent to testing, the district court applied tire good-faith exception to the exclusionary rale to ultimately deny Kraemer’s motion to suppress the results of his breath-alcohol test. Notably, the Kansas Supreme Court did not address the issue of the good-faith exception to the exclusionary rule in Nece because the State did not file a supplemental brief presenting the argument and the attorney for the State conceded at oral argument that the State was not seeking application of the exception.
Generally, when police officers obtain evidence in violation of a person’s Fourth Amendment rights, the evidence may not be used at trial—this is known as the exclusionary rale. State v. Pettay, 299 Kan. 763, 768-69, 326 P.3d 1039 (2014). The exclusionary rule was designed by the courts to deter police from violating a defendants Fourth Amendment rights. 299 Kan. at 768-69. But there are exceptions to the exclusionary rule, including the good-faith exception. State v. Carlton, 297 Kan. 642, 646, 304 P.3d 323 (2013).
The good-faith exception to the exclusionary rule initially applied when police reasonably relied on a search warrant that was later found to be invalid, but the exception was later extended to police who reasonably rely on a statute authorizing a warrantless search that is later determined to be unconstitutional. Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987); United States v. Leon, 468 U.S. 897, 921-24, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); State v. Daniel, 291 Kan. 490, 498-500, 242 P.3d 1186 (2010) (adopting Krull), cert. denied 563 U.S. 945 (2011). In order to determine whether an officer reasonably relied on a statute, courts consider whether the legislature “ wholly abandoned its responsibility to enact constitutional laws’ ” and whether the statute was so clearly unconstitutional that a reasonable officer should have known that it was unconstitutional. Daniel, 291 Kan. at 500 (quoting Krull, 480 U.S. at 355). The question of whether the good-faith exception applies is a question of law, reviewed by this court independently and without any required deference to the district court. See State v. Karson, 297 Kan. 634, 639-40, 304 P.3d 317 (2013); State v. Hoeck, 284 Kan. 441, 447, 163 P.3d 252 (2007).
Kraemer claims the district court erroneously applied the good-faith exception to the exclusionary rule to the facts in this case. We disagree. The criminal penalty statute was struck down by the Kansas Supreme Court as unconstitutional only after Kraemer’s arrest. At the time Officer Constantino arrested Kraemer, K.S.A. 2015 Supp. 8-1001(k), a facially valid statute, required that the officer advise Kraemer of the criminal consequences of refusing to submit to the test before asking Kraemer to do so. At that time, the Kansas Supreme Court had not yet found the statute unconstitutional. Although the Kansas Supreme Court ultimately struck down the criminal penalty statute, similar statutes in other states have been deemed constitutional by those states. See State v. Bernard, 859 N.W.2d 762 (Minn.), cert. granted 136 S. Ct. 615 (2015); State v. Beylund, 861 N.W.2d 172 (N.D.), cert. granted 136 S. Ct. 614 (2015); State v. Birchfield, 858 N.W.2d 302 (N.D.), cert. granted 136 S. Ct. 614 (2015).
We note that the United States Supreme Court has granted petitions for certiorari and consolidated the cases cited above from North Dakota and Minnesota for consideration of whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the persons blood. Those petitions for certiorari were granted in December 2015, well after Kraemers arrest. We find nothing here to suggest either that the Kansas Legislature wholly abandoned its responsibility to enact constitutional laws or that the statute was so clearly unconstitutional at the time of Kraemers arrest that a reasonably well-trained officer would have known that it was unconstitutional; thus, Officer Constantino would not have known the written and oral implied consent advisory informing Kraemer that he might be charged with a separate criminal offense for refusal of requested testing was coercive. As such, suppressing the evidence in this case would do nothing to deter police from violating a defendant’s Fourth Amendment rights because the officer acted in good faith in following tire statute in effect at the time. See Pettay, 299 Kan. at 768. The district court correctly applied the good-faith exception to the exclusionary rule.
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Leben, J.:
The mother of two children appeals the child-custody orders entered by a Kansas district court on the ground that it lacked subject-matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. (That act is frequently referred to in court opinions, including this one, by its somewhat unwieldy acronym, die UCCJEA.) The Kansas court entered orders in a child-in-need-of-care proceeding, but a Mississippi court had previously entered custody orders concerning these children in the divorce case between their parents.
We conclude that the Kansas court lacked subject-matter jurisdiction to enter the orders it did, which included a permanent transfer of custody of the children from mother to father. The Mississippi courts had continuing and exclusive jurisdiction in the case, and the Kansas court orders were neither necessary due to an emergency nor the result of a proper forum transfer under the UCCJEA. Accordingly, we reverse the district court’s judgment, direct that the district court vacate its orders, and remand for further proceedings consistent with this opinion.
Factual and Procedural Background
The issues before us require us to determine whether a Kansas court had subject-matter jurisdiction over child-custody matters that were already governed by a Mississippi court’s divorce decree. We therefore will need to set out in some detail the proceedings that took place in each state. In addition, all of the parties recognize that a Kansas court could have authority to take some action in an emergency, so we must also set out die factual circumstances in sufficient detail that we can assess whether any emergency could have provided authority for the Kansas court’s orders.
Mother and Father married in Kansas in June 2002, but they lived diroughout the marriage in Mississippi, where they had two children: J.A., a son born in 2004, and A.A., a daughter born in 2006. In January 2007, Mother filed for divorce in Mississippi; she then moved with the children to Kansas.
Mother’s divorce petition claimed that Father had treated her cruelly and inhumanely as a ground for the divorce, but the parties eventually stipulated to a divorce based on irreconcilable differences. The case was pending in the Chancery Court of Marshall County, Mississippi, for nearly 4 years before trial; during that time, several hearings were held regarding custody and visitation matters, and a guardian ad litem was appointed to represent the children’s interests.
The Mississippi court held a 2-day trial in December 2010. The court then entered its “Judgment of Divorce,” granting Mother sole legal custody and physical custody of the children, subject only to supervised visitation with Father one weekend a month. The court designated Father’s parents to supervise those visits.
The Mississippi court also provided a written opinion to accompany its judgment. The court found that spousal “abuse” had occurred during the marriage, noting that Father admitted he had hit Mother at least once and that there had been “many fights” between the parties. The court said that Mother had hit Father at least once too. Of greater concern was “evidence of sexual abuse” against J.A. The court cited testimony from Dr. Fred Steinberg about “extensive evaluations” he had done, leading Dr. Steinberg to conclude that J.A. had been sexually abused and to recommend that Father have only supervised visitations. Another expert, Dr. Frankie Preston, testified that Father was unlikely to have abused J.A., but the court said that “Dr. Preston failed to read Dr. Stein-berg’s report in its entirety and that these deficiencies compromise the reliability of Dr. Preston’s evaluation.” (The court also favorably cited and relied upon Dr. Steinberg’s report when it assessed the skills of Father as a parent.) The court said that “the children’s behavior appeared to improve” while visitations with Father were initially suspended altogether.
In April 2011, a few months after the divorce action had ended, Mother filed a protection-from-abuse action on behalf of the children in Johnson County District Court. She sought an order pre venting Father from contacting the children; in support, she alleged that Father had sexually abused the children in 2008 or 2009. The judge who heard her claim concluded that she had not satisfied her burden of proof and dismissed the petition; tire judge also noted that the Mississippi court retained subject-matter jurisdiction over the children under the UCCJEA.
In October 2011, the State of Kansas filed child-in-need-of-care petitions in Johnson County District Court regarding the children. The petitions alleged that the children were in need of care because both parents had reported possible abuse of the children to social-service agencies. The State alleged that it would be against the children’s welfare to remain in their homes. The factual allegations included reports that Father had sexually molested the children and that Mother was telling the children inappropriate things about Father and thereby harming them emotionally. The State’s petition made several specific allegations: (1) that J.A. was acting out by simulating oral sex on other boys at day care, asking why boys had to put their genitals in their fathers’ mouths, and expressing signs of posttraumatic stress disorder; (2) that Mother had reported J.A. ás suicidal; (3) that Mother had reported that A.A. had made allegations of sexual abuse against Father; (4) that A.A. had told a social worker that she did not like visiting Father but did not feel uncomfortable doing so; and (5) that Father had reported to police that the children said Mother would no longer let them see Father because he was a liar.
Mother filed a written response, asking that the State’s petition be dismissed with respect to her. She made several references in her response to Mississippi court proceedings and orders, noted the evaluations done by Dr. Steinberg and Dr. Preston, and quoted the Mississippi court’s statement that Dr. Preston’s report had deficiencies that compromised its conclusions. Mother also provided other details about her claims that Father had abused the children.
The same day Mother filed that response, November 14, 2011, the case first came before the Johnson County District Court for a hearing. A pro tern judge (an attorney appointed to act as a judge in place of the assigned judge) presided. That judge determined that die court had subject-matter jurisdiction over the case, but neither the transcript nor the written order tells us what basis, if any, the judge had for that ruling. No mention was made of the UCCJEA. The court set a pretrial conference for January 24,2012.
When the parties appeared for the pretrial conference, the parents indicated that they planned not to contest the State’s allegation that the children were in need of care. The State’s attorney noted that there was a Mississippi court action concerning the family and that the Mississippi court remained involved, though the attorney said he hoped the Mississippi case would be resolved soon so that the Kansas case could “start[] clean.”
At the next hearing, held February 23, 2012, both Mother and Father entered no-contest statements under which they agreed not to contest the State’s factual claim that the children were in need of care, as defined in the Revised Kansas Code for Care of Children. See K.S.A. 2014 Supp. 38-2202(d). A child-in-need-of-care finding allows a court to take continuing acts to protect the children and provide for their welfare. The court accepted the no-contest statements, adjudicated the children in need of care, and set the case over until April to allow a case manager to familiarize himself with the case and make recommendations.
After this, tire Kansas district court held a number of hearings. In general, for tire next 18 months, the court and the parties postponed final resolution of the case. During this time, the court made some changes in visitation orders and allowed the case manager further time to assess matters and make recommendations—but the children were not removed from Mother’s home. We will set out some of the more significant developments.
At a June 4, 2012, hearing, the court ordered that Father have unsupervised visits over Father’s Day weekend. Several comments were made at that hearing about the Mississippi and Kansas court proceedings. The State’s attorney said this was not “a typical Child [in] Need of Care case,” saying that the case “needs to move more into a more traditional post—typical post-divorce. We have two parents who I think—who I think are capable of each parenting these children appropriately if they will do so.” Mother’s attorney responded to the case manager’s recommendation that Fatlier have unsupervised visitation, arguing that the Mississippi court had spent 4 years on the case and had ordered only supervised visitation for Father while the Kansas court had ordered unsupervised visitation after only a few months of involvement. Fathers attorney then denigrated the Mississippi courts and expressed trust in the Kansas judge:
“Judge, I don’t care what the courts in Mississippi found. My respect for how those courts work is minimal after learning what I have learned about that system down there. Judge, I trust this court. I trust the professionals in this court, and so I don’t really care how long Mississippi has had this case. Sadly it has taken us a much shorter time to figure out what is really going on.”
The parties were in court again on June 18, 2012. The State recommended a coparenting plan but asked that the case be postponed until tire parents made more progress. The court set the case over. The court also advised Mother that if she wanted to collect child support, she would have to do that in Mississippi.
The court held a review hearing on the family’s progress in August 2012. The State complained that Mother had begun using her last name for the children; the court ordered Mother to use Father’s last name for them and threatened to take the children from her if she continued behaviors that would alienate them from Father. That month the court also approved a written order increasing Father’s contact with the children and continuing his visits unsupervised.
The court next met with the parties in November 2012. It ordered a 90-day home-maintenance plan to be prepared by the case manager and continued the case until February 2013 (though no Feb ruar}? hearing was held). The court entered an updated parenting-time plan in January 2013 and in April 2013 ordered the parties to participate in mediation over custody and visitation issues.
At an April 18, 2013, hearing, the court asked the parties if they were going to register the Mississippi court’s orders in Kansas. That brought an exchange about jurisdiction between counsel and the court. Mother’s counsel said that Mother “would desire to keep the case with the original jurisdiction in Mississippi.” Father’s counsel responded that Mother’s position “may have something to do with the fact things were going her way in Mississippi, Judge.” The judge expressed an apparent preference to keep the case in Kansas:
“All I’m going to say is child support issues can easily be addressed here. . . . Histoiy of the case? We have been at tins two years. I believe there is equanimity in what a Mississippi judge and what a Kansas judge knows.”
Father tiren filed a petition to register the Mississippi court’s divorce judgment in Kansas in August 2013.
The State filed a motion in September 2013—nearly 2 years after it had filed the child-in-need-of-care petition—seeking an emergency review of the children’s placement with Mother. The children had been primarily residing with her, but the court had given Father regular, unsupervised visitation, including for almost tire entire summer that year.
The State’s motion alleged that the children had sent Father videos saying that they didn’t want to visit him again. According to the motion, the case manager had reviewed the videos and then had talked with A.A., who had said that Mother had told her that Father had lacked Mother, bit her, and pulled her hair; A.A. also allegedly told the case manager that she liked to see Father, causing the case manager to conclude that Mother’s continued negative comments about Father were harming tire children.
The district court set a hearing for September 12, 2013, and Mother filed a motion to dismiss the motion for lack of subject-matter jurisdiction under the UCCJEA. At tire September 12 hearing, the judge noted that she had not yet read Mother’s motion but said that such a motion made no sense and that she was going to proceed to hear the State’s motion:
‘We are here on the State’s motion for an emergency review, and I have not had a chance to read it. I also see that mother filed a response to the motion for review hearing and mother’s Motion to Dismiss State’s Motion for Review Hearing, which doesn’t make any sense because we are going to have a review hearing. We are going to have a review hearing. But I haven’t had a chance to read it. It is quite long.”
The court then asked the attorneys to summarize their positions. The State’s attorney explained that the State was seeking a change in custody from Mother to Father. He noted Mother’s motion on jurisdiction but said that if Mother was correct, then everything the Kansas court had already done had been illegal. Before hearing from Mother s attorney, the court responded that it had “been at this for two years” and that it considered Mother s motion “without merit.” The court heard from each party as to how many witnesses each planned to call and set the case for trial on October 1, 2013.
At trial, Mother again objected to jurisdiction, but the court proceeded to hear the parties’ evidence. The case manager, Craig Waddle, recommended that the children’s primary residence be changed from Mother’s home to Father’s because he felt that Mother was creating conflict with Father that was negatively impacting the children. Even so, he testified that he had not seen any situation he would consider an emergency with the children while he had been working with the family:
“Q. Have you seen anything that you felt was an emergency with respect to these children over the past two years?
“A. Urgency?
“Q. Emergency.
“A. Emergency. I believe that the—I think that is hard to answer honestly. I would consider emergency a physical threat, those types of tilings. I haven’t seen any, you know, emergency. My concern is more the ongoing developmental needs of the children.”
The court also heard testimony from Mother and Mother’s sister. The court gave the parties time to file posttrial briefs and said it would rule after receiving them. The court told the parties that before it ruled it would confer with the Mississippi judge now assigned to the parties’ divorce case regarding jurisdictional issues.
The Kansas and Mississippi trial judges spoke by telephone on November 21,2013, and a transcript was prepared. Central to their discussion was an order the Mississippi court had entered regarding child-support matters in December 2012.
As we previously noted, the Kansas court told Mother in June 2012 that she could pursue collection of Father’s past-due child support in Mississippi. She brought a contempt action against Father, which the Mississippi court heard on December 6, 2012. The court held that Father was in contempt for willful failure to pay child support; it found that he owed Mother $10,224 in back child support and $2,876 in medical-expense reimbursements. The court also acknowledged that another $1,083 in medical-expense reimbursements remained in dispute and said these could be submitted to a Kansas court: “This Court finds that this dispute is held in abeyance and will fall under the jurisdiction of the Kansas Court should proper action be taken to raise tire issue and should they choose to address it.” The Mississippi court’s written order, filed December 14, 2012, also said that any other contempt issues that had been previously raised in Mississippi but not addressed in the decision, as well as any other issues that had been pled in the Mississippi court but not yet ruled upon, could now be heard in Kansas “upon the proper pleadings by either party.” As far as we can tell, however, the parties had not filed any pleadings before the Mississippi court asking that it change the existing child-custody orders.
When the Kansas and Mississippi judges spoke by telephone, they concluded that the Mississippi court had “transferred jurisdiction with regard to the divorce case to Kansas” in the December 2012 order:
“[THE KANSAS COURT (JUDGE SLOAN):] I took emergency subject-matter jurisdiction under our Child In Need of Care case.
“[MISSISSIPPI] JUDGE WHITWELL: Okay.
“THE [KANSAS] COURT: I believe that in fact then sometime in December of 2012 there is a pleading in your divorce case that talks about finding the father, I believe, in contempt of court with regard to child support and I think some medical arrears, and then there is a—that order—J think I have got it in front of me.
“JUDGE WHITWELL: December 14th, 2012.
“THE [KANSAS] COURT: Paragraph 8 says, ‘All other issues of contempt raised herein and in previous pleadings not specifically addressed are hereby transferred to the proper jurisdiction in Kansas where the children now reside. Any issues pled not herein ruled upon may be heard in that jurisdiction upon the proper pleadings by either party.’
“THE [KANSAS] COURT: So what you and I—I want to discuss and have a record made so that the attorneys here can see the record of our conversation. I believe now that Mississippi has conceded and transferred jurisdiction with regard to the divorce case to Kansas.
“JUDGE WHITWELL: I agree.
“THE [KANSAS] COURT: Okay. And that was really effective as of December of last year, December 14th[, 2012],
“JUDGE WHITWELL: That is correct.”
The district court in Kansas ruled in December 2013 that it had proper subject-matter jurisdiction over child-custody issues involving J.A. and A.A. The court concluded that it had exercised emergency jurisdiction over the case at the outset and that its jurisdiction was confirmed in December 2012 when the Mississippi court transferred full jurisdiction to Kansas. Accordingly, the court denied Mother’s motion to dismiss the case for lack of jurisdiction.
In January, the court ordered a change in custody, granting Father sole legal custody and primaiy residential placement subject to supervised telephone and in-person visitation with Mother. The court found that Mother had shown a “history and pattern of alienation” during the 2 years the case had been pending in Kansas. After Mother filed a motion to reconsider, the court consolidated Mother’s parenting time into three 1-week periods in June, July, and August, with another plan to be submitted for approval later. The court’s written findings were finalized on June 26, 2014. Mother filed an appeal to this court the following day.
Analysis
Our case turns on whether the district court had subject-matter jurisdiction over the dispute before it, so we begin by explaining what we mean by subject-matter jurisdiction. By jurisdiction, we refer to a court’s power or authority to act; here, for subject-matter jurisdiction, we refer to its authority to act on the type of claim (i.e., the subject matter) at issue before it.
In state courts, a trial court will be designated to have broad subject-matter jurisdiction to hear claims. In Kansas, our district courts by statute “have general original jurisdiction of all matters, both civil and criminal, unless otherwise provided by law.” K.S.A. 20-301. As a general matter, then, our district courts have the subject-matter jurisdiction to consider disputes that a court might address unless some other statute limits that authority. See In re Estate of Heiman, 44 Kan. App. 2d 764, 766, 241 P.3d 161 (2010); City of Overland Park v. Niewald, 20 Kan. App. 2d 909, 910-11, 893 P.2d 848, aff'd as modified 258 Kan. 679, 907 P.2d 885 (1995).
The UCCJEA is one source of such statutory limits. All but one state has adopted it (and that state, Massachusetts, has adopted an earlier, similar uniform act, the Uniform Child Custody Jurisdiction Act). Kansas adopted the UCCJEA in 2000, and Mississippi adopted it in 2004. We will cite in our opinion to provisions of the Kansas statutes, but Mississippi has the same provisions.
The UCCJEA seeks to avoid jurisdictional competition between the courts of different states over child-custody matters. It does so through rules that generally make sure that only one state at a time has jurisdiction (authority) over child-custody matters in any particular family.
Central to the UCCJEA’s method of keeping order between potentially conflicting state proceedings are two provisions. First, an initial custody determination generally must be made by the child’s “home state,” which is where the child has lived for at least 6 consecutive months before a court proceeding over custody was filed. See K.S.A. 2014 Supp. 23-37,201(a), (b); K.S.A. 2014 Supp. 23-37,102(8). Second, once an initial custody determination has been made, the state that made it generally retains exclusive jurisdiction over later custody issues until an event listed in the UCCJEA (such as a determination that neither parent nor tire child still lives in tire state) occurs. See K.S.A. 2014 Supp. 23-37,202(a).
In addition to these listed events, there are two other ways that a second state may properly enter custody orders after initial orders have been entered by the child’s home state. The first is the emergency exception, which allows another state’s court to exercise temporary authority when a child has been abandoned or there’s some other emergency need to immediately protect the child. See K. S .A. 2014 Supp. 23-37,204(a), (c), and (d). The second is a valid transfer of the case from Mississippi to Kansas, either based on a finding that Mississippi had become an inconvenient forum for the litigation, see K.S.A. 2014 Supp. 23-37,207, or a finding that Mississippi no longer had continuing exclusive jurisdiction. See K.S.A. 2014 Supp. 23-37,203.
In our case, no one disputes that Mississippi was the home state for the children when Mother filed for divorce against Father. Nor is there any dispute that the Mississippi court made an initial custody determination when it granted the parties’ divorce or that Father continued to reside in Mississippi. Accordingly, the Kansas court lacked subject-matter jurisdiction unless one of the listed events under K.S.A. 2014 Supp. 23-37,202(a) had occurred, there was an emergency, or the Mississippi court properly transferred the case to Kansas. We will consider each of those possibilities.
Before we do so, however, we want to eliminate two other potential bases—not involving the UCCJEA—-for the Kansas court’s authority to act.
First, Father and the State contend that we should not reach the jurisdictional issue at all; they base this argument either on waiver (that Mother failed initially to object to the Kansas proceedings on jurisdictional grounds) or equitable principles (that Mother should not be allowed to complain because she has “unclean hands” in the litigation). But a party cannot waive the objection to subject-matter jurisdiction or be prohibited on equitable grounds from raising the issue. Fox v. Fox, 50 Kan. App. 2d 62, Syl. ¶ 4, 322 P.3d 400 (2014). Indeed, even if a party could waive the issue, the court has an independent duty to question its subject-matter jurisdiction even when the parties have not done so, Ryser v. Kansas Bd. of Healing Arts, 295 Kan. 452, 456, 284 P.3d 337 (2012), and subject-matter jurisdiction may be challenged at any time. State v. Williams, 299 Kan. 509, 532, 324 P.3d 1078 (2014). So we must address the subject-matter-jurisdiction issue on its merits.
Second, Father and the State contend that Kansas and Mississippi have concurrent subject-matter jurisdiction here—Mississippi under the UCCJEA and Kansas under the Revised Kansas Code for Care of Children. Father and the State note that the Revised Kansas Code for Care of Children, under which child-in-need-of-care proceedings take place, provides for jurisdiction over proceedings “concerning any child who may be a child in need of care,” K.S.A. 2014 Supp. 38-2203(a), and places venue in the county where the child resides. K.S.A. 2014 Supp. 38-2204(a). Based on these provisions, Father and the State say that both states had subject-matter jurisdiction to enter custody orders involving these children, in which case they contend diat Mother s initial failure to object to the Kansas proceedings should be construed as a waiver.
But Father and the State ignore a key provision of the Revised Kansas Code for Care of Children—one that makes jurisdiction under it “[sjubject to” the UCCJEA: “Subject to the uniform child custody jurisdiction and enforcement act,... the district court shall have original jurisdiction of proceedings pursuant to this code.” K.S.A. 2014 Supp. 38-2203(b).
As we have noted in other cases, tire UCCJEA applies to child-in-need-of-care proceedings. See In re E.T., 36 Kan. App. 2d 56, 64, 137 P.3d 1035 (2006), overruled on other grounds by In re B.D.-Y., 286 Kan. 686, 187 P.3d 594 (2008); In re Z.E.H., No. 109,799, 2013 WL 5975324, at *7-8 (Kan. App. 2013) (unpublished opinion). Accordingly, a Kansas district court errs by assuming subject-matter jurisdiction over a child-in-need-of-care case that has interstate connections without making sure that the provisions of tire UCCJEA have been satisfied. In re Z.E.H., 2013 WL 5975324, at *7-9. That mistake was made in this case when a pro tern judge concluded in November 2011 that the Kansas court had proper subject-matter jurisdiction without considering the UCCJEA, even though Mother had filed a response mentioning the Mississippi court proceedings.
We will proceed now to consider the three possible ways in which the Kansas court might have had proper jurisdiction under the UCCJEA.
We can quickly eliminate the listed-events exception of K.S.A. 2014 Supp. 23-37,202(a). Father continues to reside in Mississippi, and substantial evidence about the parties remains available there. Neither Father nor tire State contends tiiat this exception applies. They instead contend that die Kansas court had proper emergency jurisdiction and that the Mississippi court effectively transferred the case to Kansas with its December 2012 order.
Emergency jurisdiction under the UCCJEA allows courts to enter temporary orders to protect a child—but absent child abandonment, die situation must indeed be an emergency.
“A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” K.S.A. 2014 Supp. 23-37,204(a).
An emergency is “[a] serious situation or occurrence that happens unexpectedly and demands immediate action.” American Heritage Dictionary 583 (5th ed. 2011).
Under the predecessor to the UCCJEA, the Uniform Child Custody Jurisdiction Act, we had explained that its emergency-jurisdiction provision was meant to be “very limited [in] scope and to be reserved for extraordinary circumstances.” In re Marriage of Anderson, 25 Kan. App. 2d 754, Syl. ¶ 5, 969 P.2d 918 (1998). But the earlier act had broader authority for courts to act under its emergency provisions than the UCCJEA does. It allowed emergency action any time a child was deemed “in need of care” under child-in-need-of-care statutes. See K.S.A. 38-1303(a)(3)(B) (Furse 1993) (stating that a court could exercise jurisdiction if it was “necessary in an emergency to protect tire child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise a child in need of care” [Emphasis added.]). The UCCJEA omits the “child in need of care” basis for emergency jurisdiction and clearly provides only limited emergency jurisdiction. See K.S.A. 2014 Supp. 23-37, 204(a); In re A.C., 130 Cal. App. 4th 854, 863-64, 30 Cal. Rptr. 3d 431 (2005); Kalman v. Fuste, 207 Md. App. 389, 406-07, 52 A.3d 1010 (2012); Parentage of Ruff, 168 Wash. App. 109, 120, 275 P.3d 1175 (2012).
There was no emergency in this case. As we’ve noted, a child-in-need-of-care finding by itself does not invoke emergency jurisdiction under the UCCJEA. The State’s attorney told the court more than 5 months after the case had been filed that this wasn’t a typical child-in-need-of-care case and that it “need[ed] to move into a more . . . typical post-divorce [posture].” At that time, he characterized both parents as “capable of. . . parenting these children appropriately if they will do so.” The State’s motion seeking to move the children from Mother’s home wasn’t even filed until nearly 2 years after it had filed the Kansas case, and the district court’s order changing placement from Mother to Father didn’t come for another 4 months (and 3 months after the court had heard the parties’ evidence). Even at trial, tire case manager who worked closely with the parties would not characterize the situation as an emergency. This was not an extraordinary and serious situation that demanded immediate action.
Even if there had been an emergency as defined by the UCCJEA, the district court still would have been limited by that statute in what it could do. The UCCJEA provision provides for temporary emergency jurisdiction. See K.S.A. 2014 Supp. 23-37,204(a). As our court noted in In re Z.E.H., this requires “ultimate deferral to the authority of another state if that state had initial child-custody jurisdiction,” so the Kansas court must “immediately communicate” with the other court and must “set a specific duration of any temporaiy orders.” 2013 WL 5975324, at *8-9 (citing K.S.A. 2012 Supp. 23-37,204[c] and [d]). The duration of a temporaiy order has a specific, but limited, purpose—allowing time to bring the matter to the attention of die court that has already entered the initial custody order. Accordingly, the duration should be “adequate to allow the person seeking an [emergency] order to obtain an order from the state having jurisdiction under [the UCCJEA],” not indefinite. See K.S.A. 2014 Supp. 23-37,204(c). The Kansas court did not set a limited duration on its orders and did not contact the Mississippi court until more than 2 years after Mother had filed a response noting the Mississippi court proceedings. Furthermore, a court exercising emergency jurisdiction under the UCCJEA cannot make permanent modifications to another state’s custody order. See K.S.A. 2014 Supp. 23-37,313; Steven v. Nicole, 308 P.3d 875, 882-83 & n.24 (Ala. 2013); Beauregard v. White, 972 A.2d 619, 626-27 (R.I. 2009). In sum, the UCCJEA’s emergency-jurisdiction provision could not have provided authority for the broad orders entered by the Kansas court even if there had been a true emergency.
We turn now to the final potential basis for subject-matter jurisdiction in Kansas—a valid transfer of the case from Mississippi to Kansas. Father and the State make two arguments here based on UCCJEA provisions that could apply in this factual situation.
First, the UCCJEA gives a second state the authority to modify the initial state’s custody order if (1) the second state is the child’s home state when the new action begins and (2) the court of the initial state “determines it no longer has exclusive, continuing jurisdiction.” K.S.A. 2014 Supp. 23-37,203(1). Second, the UCCJEA allows a case to be transferred from the initial state to another if the initial state “determines that it [has become] an inconvenient forum” for the dispute and that “a court of another state is a more appropriate forum.” K.S.A. 2014 Supp. 23-37,207. Father and the State contend that the Mississippi court made these determinations in its December 2012 order (and confirmed the determinations in the telephone call with the Kansas court).
But though Father and the State contend that the Mississippi court made these determinations, it certainly has not done so explicitly in any document found in our record. In the absence of findings that would authorize the transfer of the case from Mississippi to Kansas under the UCCJEA—and faced with a record that strongly suggests the appropriate determinations were not made— we conclude that Kansas lacked subject-matter jurisdiction to enter custody orders.
For the Mississippi court to have determined that it no longer had exclusive, continuing jurisdiction, it would have had to conclude that neither the child nor the child’s parents still had “a significant connection with [Mississippi] and drat substantial evidence [was] no longer available in [Mississippi] concerning the child’s care, protection, training, and personal relationships.” See K.S.A. 2014 Supp. 23-37,202(a)(1). Father and the State provide no suggestion about how the Mississippi court could have made that determination. Father continued to reside in Mississippi, the children had been living there full-time only a few years before, and the children continued to visit Father there.
For the Mississippi court to have determined that Mississippi had become an inconvenient forum, die UCCJEA required that it first “allow the parties to submit information” on the issue and that the court consider a list of relevant, nonexclusive factors that should guide its consideration. See K.S.A. 2014 Supp. 23-37,207(b). Those factors include the nature and location of evi dence available in each state, the familiarity of each state’s court with the facts of the case, and tire relative financial circumstances of the parties. We have no indication that the Mississippi court ever advised the parties that it was considering whether it had become an inconvenient forum or that it allowed the parties to submit information on the question.
The Mississippi court’s December 2012 order is ambiguous on our record. The only reference to Kansas came in its final paragraph:
“All other issues of contempt raised herein and in previous pleadings not specifically addressed are hereby transferred to the proper jurisdiction in Kansas where the children no[w] reside. Any issues plead not herein ruled upon maybe heard in that jurisdiction upon the proper pleadings by either parly.”
On its face, the first sentence of that paragraph appears to transfer jurisdiction only over contempt matters: “All other issues of contempt . . . are hereby transferred to the proper jurisdiction in Kansas .. . .” (Emphasis added.) While the second sentence broadly refers to “[a]ny issues plead [in Mississippi but] not herein ruled upon,” saying that these issues also may be heard in Kansas, we have no indication that any issues were before the Mississippi court other than contempt proceedings over financial obligations. Neither the State nor Father has cited any document that would have placed a custody issue for pending action before the Mississippi court in 2012.
We recognize that appellate courts ordinarily presume that a trial court has made the necessary findings to support its judgment. Here, though, the record is inconsistent with that presumption, and we therefore refuse to make it. In similar cases, Kansas appellate courts have refused to make the presumption and have remanded for proper factual findings. See State v. Weber, 297 Kan. 805, 816, 304 P.3d 1262 (2013); Burch v. Dodge, 4 Kan. App. 2d 503, 507, 608 P.2d 1032 (1980); City of Hutchinson v. Wegele, No. 103,984, 2011 WL 4031511, at *2 (Kan. App. 2011) (unpublished opinion).
The record here is inconsistent with a presumption that either state’s court made the necessary findings to support a transfer of jurisdiction under the UCCJEA. There is no indication that the Mississippi court had any matter related to child-custody before it when it said in December 2012 that issues pled before it but not ruled upon should thereafter be heard in Kansas. Nor do we have any indication that tire Mississippi court ever made any determination required under the UCCJEA to transfer child-custody jurisdiction to Kansas. Nor do Father or the State cite any point at which the Mississippi court allowed the parties to be heard, as required by the UCCJEA, on whether Mississippi had become an inconvenient forum.
Father and the State contend that any failure to make proper findings took place in Mississippi, not Kansas, and that we should not be concerned with it. But the UCCJEA is premised upon the coordination of courts in the two states. Here, the Kansas court could not assume jurisdiction until it first had a sufficient basis to conclude that the Mississippi court had made one of the two determinations required to transfer jurisdiction to Kansas—either that Mississippi had become an inconvenient forum or that neither the children nor the parents still had a significant connection with Mississippi and that substantial evidence was no longer available in Mississippi about their care. The Kansas court never had a sufficient basis to make that conclusion.
We recognize, of course, that in a telephone conversation, a Mississippi judge (though not the one who had actually made the December 2012 order) told the Kansas judge assigned to this case that he agreed that Mississippi had “conceded and transferred jurisdiction” to Kansas. But he agreed that this had been done with the December 2012 order, and that order simply doesn’t show that any of the required determinations were made.
Because we have concluded that the Kansas court did not have subject-matter jurisdiction, its orders were void as a matter of law and must be vacated. See In re Marriage of Hampshire, 261 Kan. 854, 862, 934 P.2d 58 (1997); In re Adoption of I.H.H.-L., 45 Kan. App. 2d 684, Syl. ¶ 6, 251 P.3d 651, rev. denied 292 Kan. 964 (2011). But that doesn’t necessarily end our case. Were we to order that tire Kansas custody orders be vacated and the Kansas action immediately dismissed, the Mississippi custody order would im mediately take effect, and the lives of two children could be disrupted without appropriate transition or court action.
The Kansas court, like any other court, has the ability to consider whether it has jurisdiction over the parties and over the subject matter of the litigation. See Gamblian v. City of Parsons, 261 Kan. 541, 545-46, 931 P.2d 1238 (1997); Justus v. Justus, 208 Kan. 879, 881, 495 P.2d 98 (1972). As the United States Supreme Court once said: “Every court of general jurisdiction has the power to determine whether the conditions essential to its exercise exist.” Texas & Pac. Ry. v. Gulf, Etc., By., 270 U.S. 266, 274, 46 S. Ct. 263, 70 L. Ed. 578 (1926).
In our case, whether the Kansas district court has subject-matter jurisdiction continues to remain at issue. Although our record strongly suggests that the Mississippi court never made the determinations required to transfer jurisdiction to the Kansas court, it may have intended to make such findings. In a Kansas case, we would remand the matter so that the district court could make the appropriate findings. See Weber, 297 Kan. at 816; Burch, 4 Kan. App. 2d at 507; Wegele, 2011 WL 4031511, at *2. Given the collaborative approach required of the courts in both states under the UCCJEA, a similar remedy is appropriate here.
In addition, we cannot say whether any true emergency now exists; our factual record ends at the time of the parties’ trial in the Kansas district court.
Based on these considerations and our conclusion that the Kansas court did not have subject-matter jurisdiction when it entered its judgment, we reverse its judgment, order that it vacate the existing custody and visitation orders it had entered, and remand for further proceedings consistent with this opinion. We have not vacated the orders through this opinion because we want to allow the district court and the parties to confer before some action is taken, recognizing that any action will have real consequences for the children and their parents. On remand, the Kansas district court may exercise jurisdiction over the case only if authorized under the UCCJEA. In making the determination of its jurisdiction, the Kansas court may communicate with the Mississippi court regarding any findings the Mississippi court may have already made or may need to malee if the Mississippi court seeks to transfer jurisdiction to Kansas.
We have published this opinion because we believe it will be instructive. Both the judges and the attorneys who handle these cases often have heavy caseloads. Quite reasonably, the cases are reviewed mostly at court hearings, and once a ruling is made on one issue (e.g., that the court has jurisdiction or that the child is in need of care), tire parties move on to the next one. In both In re Z.E.H. and here, an early ruling was made that the court had subject-matter jurisdiction without regard to the UCCJEA’s provisions. Both In re Z.E.H. and this case suggest drat special care must be paid to these UCCJEA jurisdictional issues; otiierwise, a case may move on for an extended time period even though the court lacks subject-matter jurisdiction. That is exactly what the UCCJEA’s provisions try to prevent.
We therefore reverse the district court’s judgment, direct the district court to vacate its existing custody and visitation orders, and remand the consolidated cases for further proceedings consistent with the UCCJEA and this opinion. | [
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Atcheson, J.:
The State appeals an order of the Sedgwick County District Court dismissing its action to have Todd Ellison involuntarily committed as a sexually violent predator. The case had languished for more than 4 years as Ellison sat in the Sedgwick County jail awaiting a trial—a delay the district court held violated his constitutional rights. We agree that Ellison was constitutionally entitled to a timely adjudication of the State’s petition. But the district court failed to correctly apply the legal standards for assessing Ellison’s asserted constitutional deprivation. We, therefore, reverse and remand for further proceedings to allow the district court to do so.
In June 2009, the State filed a petition to commit Ellison under the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., and he still had not received a trial when the district court dismissed the case in March 2014. The issue before us rests solely upon the legal implications of that delay. Based on representations to us at oral argument, we understand Ellison was released from custody as a result of the district court’s order of dismissal and remains free.
As provided in the Act, a person may be adjudged a sexually violent predator and indefinitely committed for treatment to a secured facility on the grounds of the Larned State Hospital or elsewhere. Based on an initial determination from a multidisciplinary team and a review committee that a convicted sex offender meets the definition of a sexually violent predator, the attorney general may file a petition to have the person committed. K.S.A. 59-29a03; K.S.A. 2014 Supp. 59-29a04. The person must then be detained for trial without bond or other means of conditional release. That’s what happened to Ellison as he approached his discharge from prison for criminal convictions designated in the Act as predicate offenses.
To prevail at trial on a commitment petition, the State must prove that the individual: (1) has been convicted of or charged with a crime designated as a sexually violent offense; (2) has a mental abnormality or personality disorder; (3) is likely to commit an act of sexual violence because of that abnormality or disorder; and (4) displays serious difficulty controlling his or her dangerous behavior. In re Care & Treatment of Williams, 292 Kan. 96, Syl. ¶ 3, 253 P.3d 327 (2011); see K.S.A. 2014 Supp. 59-29a02(a). The commitment proceeding is a civil action rather than a criminal prosecution, since the individual is being detained for treatment of a mental condition and not as punishment for past conduct.
Both the adjudicatory process, including mandatory pretrial detention, and a commitment under the Act substantially impair a liberty interest protected in the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Foucha v. Louisiana, 504 U.S. 71, 78-80, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992) (government effort to involuntarily commit individual because of mental illness implicates substantive liberty rights and trig.-gers procedural due process protections); In re Care & Treatment of Foster, 280 Kan. 845, 854, 127 P.3d 277 (2006). In turn, the government’s attempt to commit someone as a sexually violent predator must be accompanied by procedural due process protections aimed at preventing a wrongful deprivation of liberty. As outlined by the United States Supreme Court, constitutionally sufficient procedural due process requires that a person be afforded a right to be heard in a meaningful way before being deprived of “life, liberty, or property.” U.S. Const, amend. XIV, § 1; Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”); Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 2d 865 (1950) (The Due Process Clause “at a minimum” requires that “deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.”). The Kansas Supreme Court similarly defines procedural due process rights. See State v. King, 288 Kan. 333, 354, 204 P.3d 585 (2009). At some point, a hearing ceases to be constitutionally “meaningful” if it is materially delayed and, thus, untimely. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 547, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985) (unreasonable delay of constitutionally re quired due process hearing itself becomes a constitutional violation).
Those constitutional principles apply to the State’s efforts to commit Ellison and others as sexually violent predators. We perceive no particular disagreement between the parties on that much of the governing law. The issue at hand is how to measure a delay in the trial of a sexually violent predator case against those constitutional principles to determine if the rights of the respondent, here Ellison, have been violated. So framed, the matter presents a question of law wholly divorced from the evidence the State might use to prove its case.
The United States Supreme Court has developed a multifactor test to assess constitutional speedy trial rights protected in the Sixth Amendment to the United States Constitution. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Although the Sixth Amendment right pertains to criminal cases and the commitment proceedings for sexually violent predators are civil, the due process considerations here bear on the deprivation of liberty, lending more than a passing similarity. Courts have drawn on the Barker model to analyze due process issues arising from delayed hearings in civil proceedings. See United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555, 564, 103 S. Ct. 2005, 76 L. Ed. 2d 143 (1983); People v. Litmon, 162 Cal. App. 4th 383, 395-406, 76 Cal. Rptr. 3d 122 (2008) (applying the Barker factors in a due process claim involving undue delay in commencing a civil commitment proceeding); Morel v. Wilkins, 84 So. 3d 226, 246 (Fla. 2012) (assuming Barker test applied to a claim of delay in a civil commitment proceeding and deciding case on diat basis); In re Lamb, 368 Mass. 491, 500, 334 N.E.2d 28 (1975) (recognizing speedy trial cases, including Barker, as relevant to timeliness of commitment hearing under Massachusetts law for sexually dangerous person).
In Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in U. S. Currency, the Court found the Barker model for measuring prompt adjudication to be wholly apt in a civil forfeiture action involving a government taking of property. The Court explained that “the Fifth Amendment claim here—which challenges only the length of time between the seizure and the initiation of the forfeiture trial—mirrors the concern of undue delay encompassed in the right to a speedy trial.” 461 U.S. at 564. In turn, the Court found: “The Barker balancing inquiry provides an appropriate framework for determining whether the delay here violated the due process right to be heard at a meaningful time.” 461 U.S. at 564.
We, therefore, agree with the district court’s decision to apply the Barker model to determine whether the delay in this case deprived Ellison of constitutional due process. But we part ways with the district court in how that assessment should be performed. The Barker Court identified four considerations in evaluating the lapse of time in bringing a criminal defendant to trial: (1) the length of delay; (2) the reasons for the delay; (3) the defendant’s assertion of the constitutional right; and (4) the prejudice to the defendant arising from the delay. 407 U.S. at 530; see State v. Weaver, 276 Kan. 504, 506, 78 P.3d 397 (2003) (applying Barker to Sixth Amendment speedy trial challenge). The factors should not be applied in a way that isolates each from the others or that treats them as separate boxes on a scorecard to be tallied to reach a result. They ought to be considered holistically to gauge the impact of the relevant circumstances in a given case. Barker, 407 U.S. at 530, 533; State v. Rivera, 277 Kan. 109, 113, 83 P.3d 169 (2004); State v. Waldrup, 46 Kan. App. 2d 656, 679, 263 P.3d 867 (2011). Thus, “any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case.” Barker, 407 U.S. at 522. The Barker Court acknowledged the list of factors to be nonexclusive. Barker, 407 U.S. at 530.
As discussed in Barker and since applied elsewhere, the length of delay operates, in part, as a gatekeeper to the remaining factors. That is, a party, in light of the circumstances of his or her case, must show that the delay may be considered likely or presumptively prejudicial. Barker, 407 U.S. at 530-31; Waldrup, 46 Kan. App. 2d at 679. We suppose that gatekeeping principle to be applicable in a civil commitment proceeding. The requirement for something more than a minimal delay prevents what otherwise might be a wave of motions claiming constitutional error based on a matter of days or weeks. But a sufficient “triggering” delay abides no strict measurement in months or years imposed across a range of cases. See State v. Hayden, 281 Kan. 112, 128, 130 P.3d 24 (2006); Weaver, 276 Kan. at 509-10; Waldrup, 46 Kan. App. 2d at 679. As tire Barker Court pointed out, a delay that might be tolerable for a “serious, complex conspiracy charge” would be wholly unacceptable for “an ordinary street crime.” Barker, 407 U.S. at 530-31. We see no bright-line measure for presumptive prejudice in a civil action for involuntary commitment.
In the district court, the State conceded about 325 days of the delay of well over 4 years could be attributed to its requests for continuances or other pretrial maneuverings. The district court roughly assessed just over 500 days to the State. Everybody concedes the delay attributable to the State, even limited by its own admission, was presumptively prejudicial, allowing Ellison to pass through the gate for a full evaluation of the constitutional implications of his wait for a trial. We agree.
The district court, however, seemed to treat that presumptive prejudice alone as a legally sufficient ground to grant Ellison relief. But it simply triggers a full judicial review of the circumstances to assess the claimed constitutional deprivation.
The district court did not make findings addressing the Barker factors with any particularity and seemed to more or less rest its decision on the overall length of the delay without considering the reasons for the glacial pace of the litigation or the prejudice to Ellison. Absent findings on those factors, we cannot affirm the district court’s decision that the State violated Ellison’s due process rights. Nor can we say the district court erred in its ultimate conclusion. We, therefore, must remand for further proceedings entailing, at the veiy least, more specific findings tailored to the Barker considerations.
On remand, the district court should undertake a more particularized analysis of how much of the overall delay should be attributed to the State’s conduct and how much to Ellison, acting through his lawyers. We recognize the task may be a challenging one given the length of the delay and what may be each party’s arguments for deflecting responsibility to the other. By the same token, however, the district court need not arrive at a formal ac counting ascribing each day of the 4-year delay to either the State or Ellison. What the law requires is a reasonable allocation based on the available evidence. We leave to the district court any decision about entertaining additional written or oral argument or reopening the evidentiary record.
As a general matter, the delay caused by a court-ordered continuance ought to be attributed to the party requesting the additional time. Weaver, 276 Kan. at 508 (time attributable to defense continuances given limited significance in constitutional speedy trial determination); United States v. Erenas-Luna, 560 F.3d 772, 778 (8th Cir. 2009) (same). Continuances Ellison sought to prepare for trial or to accommodate his lawyer s schedule ought not be attributed to the State. Those delays would have been for his benefit. But that wouldn’t invariably be true. If, for example, the State produced documents long after they should have been provided to Ellison, Ellison’s request for some reasonable extension to review diem might fairly be attributed in whole or in part to the State. Those considerations spill over into the second Barker factor—the reasons for die delay—and illustrate the seamlessness of the ultimate constitutional determination.
When the district court considered Ellison’s motion for release, the trial in a sexually violent predator commitment was to be held no later than 60 days after a probable cause determination on the petition, absent continuances granted for good cause. K.S.A. 2014 Supp. 59-29a06(a). The 60-day limitation operated simply as a benchmark or goal. The failure to meet that schedule did not require dismissal of the action. K.S.A. 2014 Supp. 59-29a06(f). During tire 2015 session, the Kansas Legislature amended K.S.A. 59-20a06 to remove any timeframe for holding the trial. L. 2015, ch. 95, sec. 6. The change does not curtail Ellison’s due process right to a timely adjudication of the commitment petition. But the amendment undercuts a notion that the 60-day period now reflects a legislative determination as to what might be considered presumptively reasonable to the extent that might bear on the constitutional issue. Cf. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984) (forum state’s unusually long statute of limitations did not deprive nonresident mag azine publisher of due process protections when publisher would otherwise be subject to personal jurisdiction in forum state for alleged libel of nonresident individual).
As to reasons for the delay, the State may not get a pass by arguing its lawyers simply couldn’t devote sufficient time to this case because of other specific cases or the overall press of the business on the attorney general’s office. That is a matter of prioritizing and allocating personnel and resources. Here, Ellison had been detained without bond to determine whether he posed a sufficient risk of engaging in sexually violent acts in the future that he should be involuntarily committed for treatment. The issue was not whether Ellison had committed a crime for which he should be punished but whether he suffered from a mental aberration that left him unable to control specific antisocial impulses to engage in specific lands of especially harmful acts. The State cannot give that sort of proceeding a low priority while the subject sits in jail awaiting a final disposition.
The third Barker factor takes account of when the individual expressly asserts his or her constitutional right to a timely adjudication. The district court found Ellison did so in mid-2012. On June 21, 2012, Ellison filed a motion in this case for immediate release in part because he had been held for more than 3 years without a trial. On July 23, Ellison filed a petition for habeas corpus under K.S.A. 60-1501 as an original action in the Kansas Supreme Court. In that action filed against the State, he asserted, in part, he had been detained without a trial in a sexually violent predator commitment proceeding and sought release. The gist of Ellison’s complaints lodged in the motion and the habeas corpus petition afforded the State fair notice that he wanted a prompt determination of the sexually violent predator case or its dismissal so he could be released from custody. The Kansas Supreme Court dismissed the habeas corpus petition by order in June 2013.
After Ellison asserted his due process right to a timely adjudication, any delays attributable to the State should be weighed heavily against the State and in his favor unless he affirmatively agreed to a specific continuance or extension. The delays before Ellison asserted his right to a prompt disposition of the case have less significance in the constitutional analysis. They should not, however, be ignored. To do so would impermissibly attribute to Ellison a backhanded waiver of his due process right. See Barker, 407 U.S. at 525 (Court declines to presume waiver of Sixth Amendment speedy trial right from inaction); 407 U.S. at 528 (rejecting a “rule that a defendant who fails to demand a speedy trial forever waives his right”)- But, as we have indicated, Ellison cannot now complain about continuances the district court granted the State to which he agreed. Agreeing to a particular extension or delay is inconsistent with the assertion of a right to timely adjudication.
The fourth Barker factor looks at prejudice to the individual resulting from the delays attributable to the State. The Court identified several types of prejudice in a criminal prosecution: oppressive pretrial incarceration; a defendant’s anxiety and concern sparked by the ongoing proceedings; and possible impairment of the defense. Barker, 407 U.S. at 532; State v. Rivera, 277 Kan. 109, 118, 83 P.3d 169 (2004). Those forms of prejudice are applicable in an action to involuntarily commit a person as a sexually violent predator. The emotional impact on Ellison is fact specific, so we don’t elaborate on that consideration. Likewise, how the extended delay may have impaired Ellison’s ability to marshal evidence or to otherwise oppose the petition is a fact-based determination for the district court’s evaluation.
The conditions of Ellison’s pretrial detention present some considerations different from those in criminal cases. First, the conditions of confinement in a jail or prison are more restrictive than those imposed on someone committed for treatment as a sexually violent predator. So the length of pretrial detention in these cases should be minimized to the extent reasonably possible. In criminal cases, a convicted defendant typically will receive credit against a sentence of imprisonment for the time spent in jail awaiting trial. There is no comparable benefit to someone adjudicated a sexually violent predator. The individual is detained for treatment and, thus, will be held for an indeterminate period theoretically dependent on progress made in the therapeutic regimen. The individual’s pretrial detention is effectively lost for that purpose. No treatment is provided in jail—both because the facility isn’t staffed to do so and because the individual hasn’t been adjudicated a sexually violent predator. Those circumstances render pretrial confinement more oppressive in a civil commitment proceeding than in a criminal prosecution and weigh against extended delays -in adjudicating a commitment petition.
Apart from our discussion of the Barker factors, we reject tire State’s argument that because Ellison opposed its motion to the district court for additional findings of fact, we should, therefore, infer facts adverse to him. The State cites no authority for such a result, and we find the suggested remedy gratuitous. More naturally in that situation, we ought not invoke against the State the presumption that a district court has made all necessaiy findings supporting its conclusions in the absence of a party’s objection, even if some findings have not been stated on the record. See O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 361, 277 P.3d 1062 (2012).
In conclusion, we hold the district court did not render adequate findings, taking account of the Barker factors, to support its determination that Ellison was deprived of a due process right to a timely adjudication of the State’s petition to involuntarily commit him as a sexually violent predator. We, therefore, reverse the order dismissing the petition and remand for further proceedings consistent with this decision. | [
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Bruns, J.:
The Hansa Center for Optimum Health, LLC, appeals from the district courts decision denying its petition to revoke an administrative subpoena issued by the Kansas State Board of Healing Arts. On appeal, the appellant contends that the district court erred as a matter of law in denying its petition. In particular, it argues that the Board of Healing Arts exceeded the scope of its authority under the Kansas Healing Arts Act, K.S.A. 65-2801 et seq., when it issued the administrative subpoena. Because we conclude that the Board of Healing Arts did not exceed the scope of its authority, we affirm.
Facts
David Robert Jowdy, D.C., a chiropractor licensed to practice in the state of Kansas, works at Hansa Center for Optimum Health, LLC, in Wichita. The nature of the relationship between Hansa Center for Optimum Health, LLC, and Dr. Jowdy is unclear from the record. Moreover, Dr. Jowdy is not a party to this appeal.
On April 4, 2014, Nils Nilsen filed a small claims petition in Sedgwick County naming Dr. Jowdy and “Hansa Center” as defendants. In the petition, Nilsen alleged under penalty of perjury that he received “detoxification treatments (sauna and footbaths) at Hansa Center [and] was not given mineral replenishment.” Further, Nilsen alleged that he “had to go to [the] emergency [room] and stay in [a] hospital two times because sodium in [his] blood was too low.” As a result, Nilsen sought to recover $4,000 in monetary damages plus interest.
Although the record of the small claims action is sparse, it appears that on May 8,2014, a bench trial was held. The journal entry reflects that Nilsen and Dr. Jowdy appeared at the trial in person. Moreover, the journal entry indicates that Dr. David Jemigan appeared as “president” of Hansa Center. It is impossible to know what occurred during the trial because there is no transcript of the proceedings. Nevertheless, the journal entry states that the trial judge denied Nilsens claim because there was “[n]ot sufficient proof connecting plaintiffs subsequent condition with defendant’s prior treatment and services.”
On September 4, 2014, the associate disciplinary counsel for the Board of Healing Arts sent a letter to Dr. Jowdy stating that the Kansas Health Care Stabilization Fund had sent the Board the small claims petition filed by Nilsen. In die letter, the disciplinary counsel stated that the petition “lists allegations of substandard care” by Dr. Jowdy. The letter requested a narrative summary from Dr. Jowdy or his attorney explaining the care and treatment he had provided to Nilsen. In addition, the letter requested any applicable medical records related to Nilsen’s claim. The letter also stated that although the Board was treating the petition as a “complaint” against Dr. Jowdy, the “matter has not been opened into an investigation at this point and does not need to be reported to licensing agencies as an investigation.”
On September 11, 2014, Eldon L. Boisseau—who was licensed to practice law in the state of Kansas at the time—-sent a letter to the Board of Healing Arts in which he enclosed a copy of the small claims petition as well as a copy of the journal entry granting judgement in favor of the defendants. The letter, however, did not include a copy of Nilsen s medical records nor did it include a narrative summary as requested by the Board of Healing Arts. In a follow-up letter to the Board of Healing Arts dated September 15, 2014, Boisseau stated that he believed Dr. Jowdy had “complied with K.S.A. 40-3409 concerning what should be furnished to the [Board] under these circumstances.”
On October 2,2014, a special investigator for the Board of Healing Arts sent a letter to Dr. Jowdy stating that he still needed “to provide a complete written narrative statement concerning the specific allegations” as well as “any information that is relevant to the standard(s) of care and/or other allegations within the malpractice action.” Unlike the letter dated September 4, 2014, this letter specifically referred to the matter as an “investigation” and included a Board of Healing Arts case number rather than simply a complaint number.
Also on October 2, 2014, Kathleen Selzler Lippert—the Executive Director of the Board of Healing Arts—issued a subpoena duces tecum to “Hansa Center, 12219 East Ce.ntral[,] Wichita, KS 67206.” The administrative subpoena listed the Board’s case number and listed K.S.A. 65-2839a as the statute authorizing its issuance. Specifically, the subpoena commanded the production of medical records—including notes and correspondence—pertaining to Nilsen’s “detoxification treatment and care by David Robert Jowdy, DC.” The return date fisted on the subpoena was October 17, 2014.
In response, Boisseau sent a letter to the Board of Healing Arts dated October 7, 2014, in which he indicated that he was representing “Hansa Center and Dr. David R. Jowdy, D.C.” Boisseau asserted that he had “provided what the Board of Healing Arts was entitled based on the statute” and was “refusing] to comply with [the] subpoena unless you can produce a complaint filed by Mr. Nilsen regarding his treatment... or some other legal authority for [the Boards] request.” Further, Boisseau stated that if the Board “persists in seeking these records without legal authority, [he would] file an action in the Third Judicial District, Shawnee County, Kansas District Court to quash any such efforts.”
Additionally, Jacques G. Simon—an attorney licensed in the state of New York and several other states—sent a letter on behalf of Dr. Jowdy to the Board of Healing Arts’ special investigator dated October 17,2014. In the letter, Simon asserts that the Board did not have the authority to ask for “a narrative relating to any malpractice action.” The letter was evidently delivered by Gregory Forney-—who is an attorney licensed in the state of Kansas—along with a cover letter also dated October 17, 2014, indicating that he was serving as Dr. Jowdy s local counsel. Interestingly, although Simon and Forney represent Hansa Center for Optimum Health, LLC, in this case, the limited liability company is not mentioned in either of their letters.
On November 6, 2014, Forney filed a “Petition Pursuant to K.S.A. § 65-2839a(b)(3)(B) for an Order Revoking Administrative Subpoena” in Shawnee County District Court on behalf of Hansa Center for Optimum Health, LLC. At the same time, the limited liability company also filed a motion seeking to revoke the administrative subpoena dated October 2, 2014. In response, the Board of Healing Arts filed both an answer and a motion to dismiss on December 4, 2014.
On March 23, 2015, the district court held a hearing on the petition as well as on the motion to dismiss. At the hearing, no witnesses were presented and no exhibits were admitted into evidence. Rather, counsel for the parties offered argument on their respective positions. After hearing the parties’ arguments, the district court took a recess before announcing its decision to deny the request to revoke the administrative subpoena. Subsequently, on May 8, 2015, the district court entered a journal entry denying tire relief requested by Hansa Center for Optimum Health, LLC, and dismissing the petition.
Analysis
On appeal, Hansa Center for Optimum Health, LLC, contends that the Board of Healing Arts exceeded its authority in issuing the administrative subpoena seeking medical records pertaining to Dr. Jowdy’s care and treatment of Nilsen. Further, the appellant argues that the district court erred as a matter of law in dismissing the petition and by failing to quash the subpoena. In response, the Board of Healing Arts contends that the district court properly dismissed the petition and appropriately refused to quash the subpoena.
Standard of Review
Whether the Board of Healing Arts has exceeded its statutory authority in issuing the administrative subpoena to the appellant requires interpretation of the Kansas Healing Arts Act (Act), K.S.A. 65-2801 et seq. This presents a question of law subject to unlimited review by this court. Similarly, whether the district court erred in interpreting the Act requires statutoiy interpretation and is also subject to unlimited review. See Ryser v. State, 295 Kan. 452, 464, 284 P.3d 337 (2012). However, “the enforcement of a subpoena duces tecum is left to the discretion of the enforcing tribunal.” In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, 255, 891 P.2d 422 (1995); see also State v. Gonzalez, 290 Kan. 747, 755, 234 P.3d 1 (2010) (applying abuse of discretion standard when reviewing district court decision on motion to quash subpoena).
The Kansas Supreme Court has held that there are “more ‘relaxed’ standards of relevancy in the context of administrative investigations as compared to the ‘stringent’ relevancy requirement of K.S.A. 60-245(b) for purposes of litigation.” (Emphasis added.) Collingwood Grain, Inc., 257 Kan. at 255; see also Atchison, T. & S.F. Rly. Co. v. Commission on Civil Rights, 215 Kan. 911, 918, 529 P.2d 666 (1974) (stating administrative investigations generally involve flexible, informal procedures). Specifically, our Supreme Court has found that “administrative subpoenas may be enforced for investigative purposes unless they are plainly incompetent or irrelevant to any lawful purpose.” Atchison, T. & S.F. Rly. Co. v. Lopez, 216 Kan. 108, Syl. 7, 531 P.2d 455 (1975). This does not mean, however, that state agencies and boards have “unlimited subpoena powers and can subject an entire facility to demands or whims without some showing of relevancy to the investigation.” Cessna Aircraft Co. v. Kansas Comm’n on Civil Rights, 229 Kan. 15, 28, 622 P.2d 124 (1981).
Accordingly, to be valid, administrative subpoenas must satisfy three requirements: “(1) The inquiry must be one that the agency is authorized to make, (2) the demand must not be too indefinite, and (3) the information sought must be reasonably relevant to the purpose of the inquiry.” Hines, Inc. v. State ex rel. Beyer, 28 Kan. App. 2d 181, 183, 12 P.3d 897 (2000).
Authority of Board of Healing Arts
In Kansas,
“the practice of the healing arts is a privilege granted by legislative authority and is not a natural right of individuals, [as such] it is deemed necessary as a matter of policy in the interests of public health, safety and welfare, to provide laws and provisions covering the granting of that privilege and its subsequent use . . . .” K.S.A. 65-2801.
“To that end, the legislature enacted the [Kansas Healing Arts] Act and established the Board [of Healing Arts] as the administrative agency charged with administering tire Act under K.S.A. 65-2812.” Ryser, 295 Kan. at 464.
The Kansas Supreme Court has found:
“ ‘The whole purpose and tenor of the healing arts act is the protection of the public against unprofessional, improper, unauthorized and unqualified practice of tire healing arts. The goal is to secure to the people the services of competent, trustworthy practitioners. The act seeks to do this through licensure. The licensing by the state, granted only after minimal standards of proficiency are met, amounts to tire state's recognition of the licentiate as a qualified practitioner. The continued holding of the license may be taken by the public as official indication those standards are being maintained. The object of both granting and revoking a license is the same—to exclude the incompetent or unscrupulous from the practice of the healing arts.’ ” Ryser, 295 Kan. at 466 (quoting Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 453, 436 P.2d 828 [1968]).
“Simply stated, the States interest is in regulating the professional conduct of persons licensed to practice under the Act. See K.S.A. 65-2801.” Ryser, 295 Kan. at 466.
Furthermore, our Supreme Court has explained the authority of the Board of Healing Arts as follows:
“The Board has authority to enforce the Act ‘and for that purpose shall make all necessary investigations relative thereto.’ K.S.A. 65-2864. As part of any Board investigation or proceeding, tire Board has the power to issue subpoenas. K.S.A. 65-2839a(b)(l). The Board is also authorized to appoint a disciplinary counsel who ‘shall have tire power and the duty to investigate or cause to be investigated all matters involving professional inconrpetency, unprofessional conduct or any other matter which may result in disciplinary action against a licensee pursuant to K.S.A. 65-2836 through 65-2844, and amendments thereto.’ K.S.A. 65-2840a; see also K.S.A. 2011 Supp. 65-2836 (setting forth 29 grounds for disciplinary action); K.S.A. 2011 Supp. 65-2837(a), (b) (defining professional incompetency and unprofessional conduct).” Ryser, 295 Kan. at 465.
Accordingly, in order to fulfill its statutory duty to “make all necessary investigations relative” to the Act, the Board of Healing Arts has been given the power by the legislature to issue administrative subpoenas compelling, the production of documents if tire “evidence relates to medical competence, unprofessional conduct or the mental or physical ability of a licensee safely to practice the healing arts.” K.S.A. 65-2839a(b)(l); see Ryser, 295 Kan. at 459. To ensure that the Board does not abuse this-power, a district court has the power to quash an administrative subpoena “if in the courts opinion the evidence demanded does not relate to practices which may be grounds for disciplinary action, is not relevant to the charge which is the subject matter of tire hearing or investigation or does not describe with sufficient particularity the evidence which is required to be produced.” (Emphasis added.) K.S.A. 65-2839a(b) (3)(B).
District Court’s Refusal to Quash Administrative Subpoena
In'the Ryser case, tire Kansas Supreme Court found that K.S.A. 65-2839a(b)(3)(B)—which the parties agree is applicable to the present case—-provided a district court with jurisdiction to consider whether to revoke, limit, or modify an administrative subpoena. 295 Kan. at 460-63. Consequently, our Supreme Court then went on to consider the merits of tire appeal. Although we will also address the merits of the present appeal, we note for future cases that K.S.A. 65-2839a(b)(3)(B) was amended in 2015 to limit a district court’s jurisdiction to consider the validity of an administrative subpoena “upon application by the board or after exhaustion of available administrative remedies by the person subpoenaed.”
Turning to the merits, tire appellant argues that the district court should have quashed the administrative subpoena issued by the Board of Healing Arts because it was directed to “Hansa Center” rather than to Hansa Center for Optimum Health LLC. A review of the record on appeal, however, reveals that there was no confusion regarding to whom the administrative subpoena was issued.
The subpoena not only listed the name “Hansa Center” as the entity required to produce the requested medical records, it also included the address of “12219 East Central[,] Wichita, KS 67206.” It is undisputed that this is the mailing address for Hansa Center for Optimum Health, LLC, registered with the Kansas Secretary of State on August 27, 2014. It is also the address that was listed on the summons in the small claims action that led to the issuance of the subpoena.
We also note that all of the pleadings in the small claims action referred to the clinic as “Hansa Center” rather than by its full name. Likewise, in his letter to the Board of Healing Arts dated October 7, 2014, the appellant’s attorney—Boisseau—did not indicate that the Board had subpoenaed the wrong entity. Rather, he twice referred to “Hansa Center” as his client. Thus, we do not find merit in the appellant’s argument regarding the name listed on the face of tire administrative subpoena.
The appellant also argues that the Board of Healing Arts had no statutory authority to issue the administrative subpoena to obtain the medical records pertaining to Dr. Jowdy’s treatment of Nilsen. In particular, the appellant argues that the Board only requested information under K.S.A. 40-3409, which simply required production of documents related to the small claims action filed by Nilsen against Dr. Jowdy. Although this may be true of written correspondence sent to Dr. Jowdy prior to the issuance of the subpoena to the appellant, we note that the administrative subpoena does not mention K.S.A. 40-3409. Instead, the subpoena states on its face that it was issued pursuant to K.S.A. 65-2839a. Accordingly, we find no merit in this argument.
Further, the appellant argues that the district court erred in finding that “a dismissal of a . . . small claims court case does not equate to a finding that a licensee did not violate the Healing Arts Act” and that the “dismissal of the Sedgwick County case is not controlling on the issues [in] this matter.” Although K.S.A. 2014 Supp. 65-2836(w) states that a licensee may be subject to disciplinary action if “[t]he licensee has an adverse judgment, award or settlement against the licensee resulting from a medical liability claim related to acts or conduct similar to acts or conduct which would constitute grounds for disciplinary action under this section,” it is not the only statute authorizing the Board of Healing Arts to investigate a licensee for possible violations of the Act. Moreover, there are many reasons why a small claims petition may be denied. Thus, we find that the fact the small claims action was unsuccessful does not prevent the Board from investigating other possible violations of the Act by Dr. Jowdy.
Finally, the appellant argues that the Board of Healing Arts had no legal basis for issuing the administrative subpoena seeking the medical records pertaining to Dr. Jowdy s care and treatment of Nilsen. But this argument ignores the Boards statutory authority to investigate all matters involving professional incompetency, unprofessional conduct, or any other matter which may result in disciplinary action against a licensee, as well as its authority to issue subpoenas in conjunction with such investigations. See K.S.A. 2014 Supp. 65-2837(a) and (b); K.S.A. 2839a(b)(l); K.S.A. 65-2840¾ K.S.A. 65-2864. In fact, K.S.A. 2014 Supp. 65-2836 sets forth 29 grounds that could possibly lead to disciplinary action being taken by the Board of Healing Arts against a licensee.
In the small claims petition filed by Nilsen, he did not simply allege that Dr. Jowdy had performed “detoxification treatments (sauna and footbaths)” at the appellant’s clinic. Rather, he went on to allege that during these treatments he “was not given mineral replenishment” and “had to go to emergency and stay in hospital two times because sodium in my blood was too low.” Based on these allegations, we find that it was reasonable for the Board of Healing Arts to investigate whether Dr. Jowdy may have “engaged in improper or unprofessional conduct in the course of his treatment.” Moreover, we agree with the district court that Nilsens medical records were relevant for the Board to properly perform its investigation into the allegations set forth in the small claims petition.
As the Board of Healing Arts points out, it cannot determine simply from a review of the small claims petition and journal entry whether Dr. Jowdy violated the Act. As such, it was reasonable for the Board to seek to review the medical records in order to adequately fulfill its duty to protect the public. Although the Board of Healing Arts likely could have obtained the medical records by asking Nilsen to sign a medical records release, it was not unreasonable or legally inappropriate for the Board to issue an administrative subpoena to obtain a copy of the records from the appellant.
In conclusion, we find that the district court correctly applied the law in refusing to quash the administrative subpoena issued by the Board of Healing Arts for the medical records pertaining to the care and treatment of Nilsen by Dr. Jowdy at the appellants clinic. We further find that it was appropriate for the Board to investigate the allegations asserted by Nilsen against Dr. Jowdy in the small claims petition. Moreover, we find that the Board was authorized by law to issue die administrative subpoena, it was not indefinite or overbroad, and it seeks medical records that are reasonably relevant to the investigation of a person who is licensed to practice healing arts in Kansas.
We, therefore, conclude that the district court’s denial of the petition to revoke the administrative subpoena should be affirmed.
Affirmed. | [
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Leben, J.:
Corey D. (Father) appeals the district court’s termination of his parental rights to five children. He argues that the district court violated his due-process rights when it found that the State had presented a sufficient evidentiary basis for presuming him an unfit parent without first • hearing the evidence Father wanted to present on the unfitness presumption.
We agree with Father that the district court’s procedure violated his due-process rights. A fundamental part of due process is the opportunity to be heard in a meaningful way. The presumption of unfitness that can be applied to terminate a parent’s rights to a child is an important part of the process, and the parent has a right to present evidence before the presumption is applied. We therefore reverse the district court’s judgment terminating Father’s parental rights and remand die case for further proceedings.
Factual and Procedural Background
The district court held an evidentiary hearing on the State’s motion to terminate Father’s rights to these children on October 15, 2013. The State sought to establish Father’s unfitness as a parent, which is required to terminate parental rights, under a statutory presumption found in K.S.A. 2013 Supp. 38-2271(a)(5). Under that statutory provision, a parent is presumed unfit and unable to care for his or her child if the State proves by clear and convincing evidence that tire child has been in a court-ordered, out-of-home placement for 1 year or more and the parent “has substantially neglected or willfully refused to carry out a reasonable [court-approved] plan” for reintegrating the child into the parent’s home. K.S.A. 2013 Supp. 38-2271(a)(5).
To terminate parental rights, the State must prove unfitness, and the State chose in Father’s case to proceed solely on the basis of this presumption. After the State presented the testimony of three witnesses who managed the family’s case plan and provided ther-ápy, the district court agreed to the State’s suggestion that it de-. termine—based on the evidence heard thus far-—whether the State had proved facts to justify applying this presumption of unfitness:
“[THE STATE]: Judge, I’d submit to the Court that this is probably the close of my evidence on the presumption.
“THE COURT: Presumption side.
“[THE STATE]: And I don’t know if [Father’s counsel], I’ve discussed with him during a break, I don’t know whether he wants to present his evidence before you hear argument on that portion of the case or whether you want to go airead and hear argument on presumption side.
“THE COURT: [Counsel?]
“[FATHER’S COUNSEL]: Well, obviously, Your Honor my inten[t] would be to call [Father,] to rebut substantial parts of what’s been testified to.
“THE COURT: Presumptions, okay, well then that seems to be the posture we are in, the State believes that at this point they have met the burden of presumption and that would put the burden over to you for the rebuttal side, I guess.
“[FATHER’S COUNSEL]: Only if the Court believes that the State has . . .
“[THE STATE]: Right.
“[FATHER’S COUNSEL]: . . . met [its] burden of presumption because we disagree that the State’s even met that burden.
“[THE STATE]: That would be the question, Judge, do you want to hear argument on that or do you want to hear evidence to continue that portion of the case?
“THE COURT: Well, in order to proceed in an orderly fashion I would prefer to hear ... the arguments that you make on what you believe the record is relative to presumption.
“[THE STATE]: Okay, very well.
“THE COURT: And tiren well proceed from there.”
Counsel then made arguments about whether the State had proven that the court should apply the presumption of unfitness in this case. The court found that it had, i.e., the court concluded that the children had been in out-of-home placement for more than 1 year and that Father had substantially neglected or willfully failed to comply with a reintegration plan. Under K.S.A. 2013 Supp. 38-2271(b), when tire court presumes unfitness, the parent has the burden of proof “to rebut the presumption of unfitness by a preponderance of the evidence.” The court set a second eviden-tiary hearing to allow Father to present his additional evidence.
Father testified when the hearing continued. He said that he had done his best to do everything the social-services agency supervising his family had requested of him and that, if given the chance, he would continue to put forth his best efforts to fulfill its requests. He stated that he had not completed some of the things asked of him because he didn’t have the money to do so.
After closing arguments by the attorneys, the court announced its ruling in favor of the State:
“And at this point in time, there is nothing in die record to support a finding by the Court that [Father] has in any way rebutted any of the case presented in chief by the Petitioner in this matter, the findings of tire Court as to die presumptions and the unfortunate reality that those presumptions rise to the level of a finding of unfitness and a termination of parental rights remains the finding of the Court and that these children should now be continued with the agency with a permanency plan of potential adoption or other permanency.”
The court also concluded that terminating Father’s rights was in his children’s best interests. Father has appealed to this court.
Analysis
Father argues that the district court should have allowed him to present evidence before it made a decision about whether to apply the presumption of unfitness. Not doing so violated his due-process rights, he contends.
Father is right that due-process rights apply here. A parent’s right to the control, custody, and care of children is among the most fundamental rights protected by the United States Constitution. See Frazier v. Goudshaal, 296 Kan. 730, 752-53, 295 P.3d 542 (2013); In re A.E.S., 48 Kan. App. 2d 761, Syl. ¶ 10, 298 P.3d 386 (2013); In re J.L., 20 Kan. App. 2d 665, 671, 891 P.2d 1125, rev. denied 257 Kan. 1092 (1995). So due-process rights apply, 20 Kan. App. 2d at 669-71, and a court must determine what process is due. Village Villa v. Kansas Health Policy Authority, 296 Kan. 315, 331, 291 P.3d 1056 (2013). The key question before us is what process Father was entitled to before the district court made its decision to apply the unfitness presumption.
The essence of due process is the right to be heard at a meaningful time and in a meaningful manner. Kempke v. Kansas Dept. of Revenue, 281 Kan. 770, 776, 133 P.3d 104 (2006); Taylor v. Kansas Dept. of Health & Environment, 49 Kan. App. 2d 233, 242-43, 305 P.3d 729 (2013). And the presumption of unfitness is an important part of the State’s case for terminating Father’s parental rights. Accordingly, Father is entitled to be heard before the court decides to apply that presumption. See In re D.H., No. 98,739, 2008 WL 496168, at *6 (Kan. App.) (“Determination of applicability of the presumption occurs only after hearing from both sides.”), rev. denied 286 Kan. 1178 (2008).
The district court may apply the unfitness presumption only if the State proves the facts supporting it by clear and convincing evidence. K.S.A. 2013 Supp. 38-2271(a). That’s a high evidentiary burden, requiring evidence that could convince a rational fact-finder that the facts were highly probable. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). It’s obviously an easier burden to reach if only one side presents its evidence. But that would not be a fair procedure: The district court should not determine whether the presumption has been met until both sides have had the opportunity to present whatever evidence relates to the presumption’s application to the case.
The legislature has established a two-step process with regard to an unfitness presumption. The State may gain tire presumption if it proves any of several statutory bases by clear and convincing evidence. K.S.A. 2013 Supp. 38-2271(a)(l)-(13). If the State does so, then the parent has to rebut the presumption of unfitness by a preponderance of the evidence. K.S.A. 2013 Supp. 38-2271(b); see also K.S.A. 60-414. In some cases, the parent may present evidence directly negating tire claim for the presumption. In other cases, the facts supporting the presumption may be true yet the parent presents other evidence suggesting he or she is not an unfit parent. In any case, however, the parent must be allowed to present his or her evidence related to tire State’s requested unfitness presumption before the court decides to apply the presumption.
One might argue that this is all an academic argument—all the evidence was ultimately presented, and the district court terminated parental rights only at the close of the case. But the unfitness presumption is very important. The district court must find unfitness before it can terminate parental rights, and it can presume unfitness under specific factual circumstances. The court is to do so only if the State establishes the presumption by clear and convincing evidence. Under the presumption at issue here, the State must prove the parent’s neglectful or willful failure to carry out a reasonable reintegration plan. For example, the State might present in evidence records showing that the parent hadn’t shown up for planned visits with the child, but the parent might have evidence that those records weren’t correct. The court’s decision about whether the State has established facts supporting the presumption by clear and convincing evidence must be based on all the evidence relevant to that point.
In this case, although Father’s counsel got to cross-examine the State’s witnesses, he did not get to present Father’s testimony— and Father had testimony squarely related to the unfitness presumption. Father’s due-process rights were thus violated by the court’s decision to apply the unfitness presumption without hearing Father’s testimony.
We recognize that Father did not make this argument to the district court. The State has urged us not to consider the issue on appeal since we usually require that appellate issues have first been raised in die trial court. But we review claims of constitutional error for the first time on appeal when that’s required to serve the ends of justice or to prevent the denial of a party’s fundamental rights. See State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014); Smith v. Yell Bell Taxi, Inc., 276 Kan. 305, 311, 75 P.3d 1222 (2003). Because a parent’s right to his or her child is a fundamental right, we still may consider the issue. See In re A.E.S., 48 Kan. App. 2d 761, Syl. ¶ 9.
Because the district court decided to apply the presumption before Father presented evidence relating to the factual basis for it, we reverse the district court’s judgment and remand the case for further proceedings. On remand, the district court should determine whether to apply the presumption only if, after considering all the evidence presented by the parties relevant to the presumption, clear and convincing evidence supports it.
The district court’s judgment is reversed, and the case is remanded for further proceedings. | [
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Caplinger, J.:
Laura Hulse appeals the district court’s decision denying her motion to change venue from Cowley County to Shaw nee County in an action brought by Brian Yount to modify custody of the parties’ minor child. We hold that although the district court did not err in refusing to apply a venue agreement contained in the parties’ separation agreement, it did err in denying a change of venue based upon the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), K.S.A. 38-1336 et seq. However, we affirm the decision on other grounds, as the district court’s factual findings were sufficient under K.S.A. 2004 Supp. 60-609(a) to conclude a transfer would not be convenient for the parties.
Background
Hulse and Yount were married in January 1996. Between January 1996 and the time the couples’ son was born in May 1996, Hulse lived in Topeka while Yount lived and attended medical school in Kansas City, Kansas. Yount filed for divorce in Cowley County District Court in November 1998. At the time, Hulse and the couples’ child were still living in Shawnee County, and Yount was living in Wichita.
Yount testified that the divorce action was filed in Cowley County because she and Yount had an attorney friend there who could inexpensively handle their “mediation.” When it subsequently became clear the attorney would represent her husband in the divorce proceeding, Hulse obtained her own counsel. On May 11, 1999, the district court of Cowley County entered a divorce decree, and a property settlement dated April 26, 1999, was incorporated into the divorce decree.
At the time she signed the property settlement, Hulse was still residing in Shawnee County and wanted venue to rest in that county. The property agreement reached by the parties provided:
“Following the time in which the decree of divorce is entered herein, if there is any farther htigation concerning the parties’ minor child, the parties agree that venue for this action shall be changed to Shawnee County, Kansas, which is the present county residence of Wife and minor child.”
Following the parties’ divorce, Yount relocated to Oklahoma and Hulse remarried and relocated to Johnson County.
On July 13, 2001, Yount filed a motion to modify his parenting time and to be reimbursed for travel expenses. Additionally, he moved to have venue of the case changed to Shawnee County. Yount’s venue motion was never ruled upon, and venue remained in Cowley County. A journal entry containing a parenting plan was entered by the Cowley County District Court on December 31, 2001.
On October 30, 2003, Hulse filed a motion with the Cowley County District Court to increase child support. On March 3,2004, she also filed a motion in Cowley County to award her attorney fees. However, Hulse did not move for a change of venue.
On March 15, 2004, tire Cowley County District Court entered an order modifying child support, indicating in the order diat Hulse had withdrawn her request for attorney fees.
On May 28, 2004, Hulse filed a motion in Cowley County District Court to have venue changed to Shawnee County. On September 14, 2004, Yount responded, objecting to a change in venue, moving for a modification in parenting time, and requesting a change in the designated location for exchange of the parties’ son.
On September 27, 2004, the Cowley County district court held a hearing to address the parties’ motions and on October 21, 2004, overruled Hulse’s motion to change venue. Additionally, the court ordered tire parties to participate in mediation for the purpose of determining a parenting time schedule, to cooperate with each other to effectuate parenting time while mediation was pending, and to share transportation responsibilities equally.
In denying Hulse’s motion to change venue, the district court found that Hulse was no longer a resident of Shawnee County and she currently lived and worked in Johnson County. The court further remarked that Hulse’s testimony lacked credibility in that it failed to establish a connection between Hulse and the child to Shawnee County, or any intention to return to Shawnee County.
The district court concluded that “jurisdiction” is a matter of statute and not a matter of agreement between the parties. It denied Hulse’s motion to change venue, concluding:
“In [K.S.A.] 38-1337, and the statutes that follow there, reflect a continuing jurisdiction; and die court made the initial determination reflects exclusive jurisdiction in that court. I consider those statutes as controlling and conclude that whether based upon facts or the law, the statutes apply in this case.
“The motion to change venue is not supported in either case by fact or law, and the motion is therefore overruled.”
On November 19, 2004, Hulse filed a notice of appeal challenging the court’s decision to deny her motion to change venue from Cowley County to Shawnee County.
Standard of review
According to K.S.A. 2004 Supp. 60-609, a district court has the discretion to grant or deny a motion to change venue. See Schmidt v. Shearer, 26 Kan. App. 2d 760, 765, 995 P.2d 381 (1999). “Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. [Citations omitted.]” Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002).
In this appeal, Hulse argues the district court abused its discretion when it erroneously relied upon the UCCJEA to support its conclusion that as a matter of law the only proper venue for this action was Cowley County District Court. Additionally, Hulse argues the district court erred when it disregarded the parties’ agreement estabhshing Shawnee County as the venue for future litigation regarding the parties’ minor child, as this agreement was incorporated into the divorce decree. Citing K.S.A. 2004 Supp. 60-1610(b)(3), Hulse points out that Kansas law has long recognized that courts cannot ignore or disregard a judgment incorporating an agreement between parties. Given these errors, Hulse contends this court should set aside the district court’s order and remand the case with instructions to transfer the case to Shawnee County District Court.
The district court’s reliance on the UCCJEA
As Hulse points out, the UCCJEA “ ‘does not address the determination of venue between the state’s district courts.’ ” (Quoting In re Rumsey, 276 Kan. 65, 77, 71 P.3d 1150 [2003].) She thus contends the trial court erred when it applied the UCCJEA to resolve an intrastate venue dispute.
In response, Yount concedes the UCCJEA was designed for interstate rather than intrastate conflict resolution. Nevertheless, he argues it was not unreasonable for tire district court to utilize the UCCJEA to analyze this intrastate conflict. We disagree.
Jurisdiction and venue are not interchangeable. As the Kansas Supreme Court noted in In re Rumsey, 276 Kan. at 77, “[t]he UCCJEA addresses jurisdiction for Kansas courts. It does not address the determination of venue between the state’s district courts.” Thus, we conclude the district court erred in finding it had venue over a postdivorce custody action based on the UCCJEA. Rather, questions of venue in postjudgment actions are controlled by K.S.A. 60-607 and K.S.A. 2004 Supp. 60-609, which govern-venue and change of venue, respectively, in domestic relations actions.
Yount suggests that even if the district court relied on the wrong body of law, its decision regarding venue was a matter of discretion and should be upheld if it was correct for any reason. Yount suggests K.S.A. 2004 Supp. 60-609 provides sufficient statutory basis to support die district court’s decision regarding venue.
Before considering whether the denial of venue may be upheld under K.S.A. 2004 Supp. 60-609, we must first consider Hulse’s argument that the district court was without discretion to deny the change of venue based upon the parties’ choice of venue provision incorporated into the divorce decree.
The venue provision
(1) Enforceability of the separation agreement under K.S. A. 2004 Supp. 60-1610(b)(3)
Hulse argues the district court erred in refusing to enforce the couple’s agreement to transfer venue of “any further litigation concerning the parties’ minor child.” She argues that because the agreement was incorporated into the divorce decree, it must be enforced as a valid separation agreement pursuant to K.S.A. 2004 Supp. 60-1610(b)(3). That section in its entirety, mandates:
“If the parties have entered into a separation agreement which the court finds to be valid, just and equitable, the agreement shall be incorporated in the decree. A separation agreement may include provisions relating to a parenting plan. The provisions of the agreement on all matters settled by it shall be confirmed in the decree except that any provisions relating to die legal custody, residency, visitation parenting time, support or education of the minor children shall be subject to the control of the court in accordance with all other provisions of this article. Matters settled by an agreement incorporated in the decree, other than matters pertaining to the legal custody, residency, visitation, parenting time, support or education of the minor children, shall not be subject to subsequent modification by the court except: (A) As prescribed by the agreement or (B) as subsequently consented to by the parties.” (Emphasis added.)
Yount argues the venue provision is unenforceable because this matter directly relates to child custody and parenting time, which are excepted under the statute. Hulse counters that the venue provision concerns a procedural issue not related to child custody. Under the circumstances presented here, we do not agree that this is a procedural issue.
First, as Yount notes, by its very language the venue provision applies only to “litigation concerning the parties’ minor child.” Moreover, the district court could not address the issue of venue in this case without first determining whether this issue concerned the custody of a minor child. The district court’s subject matter jurisdiction was based on the fact that this was a “child custody proceeding,” as defined by K.S.A. 38-1337. See K.S.A. 38-1349. We conclude that because this matter related to the custody of a minor child, the court was not bound under K.S.A. 2004 Supp. 60-1610(b)(3) to enforce the venue provision incorporated into the divorce decree.
Further, even assuming this was an issue the parties could mandate via an agreement, the provision was still subject to modification under K.S.A. 2004 Supp. 60-1610(b)(3)(B) if the parties consented to such modification. Here, the parties sought relief on several occasions from the Cowley County District Court in relation to postdivorce modifications and that court issued orders modifying the parenting time schedule and child support. Thus, by their own actions, the parties manifested an intention to modify the venue provision.
We thus conclude that the district court was not bound by the venue agreement, both because the agreement concerned a matter excepted under K.S.A. 2004 Supp. 60-1610(b)(3) and because the parties, by their own actions, consented to a modification of the provision.
(2) Enforceability of venue agreement as a forum selection clause
Hulse argues even if the venue agreement was not enforceable under K.S.A. 2004 Supp. 60-1610(b)(3), the district court was bound by the venue agreement because it was the equivalent of a forum selection clause, which Kansas courts routinely enforce.
However, this court has recognized that a provision agreeing that venue will lie with a specific court may not constitute a forum selection clause and need not be given exclusive effect. Aylward v. Dar Ran Furniture Industries, Inc., 32 Kan. App. 2d 697, 700, 87 P.3d 341 (2004). “ £[T]he controlling factor in governing enforcement of a venue provision in any agreement by confining venue to a specific court is whether the parties intended to commit the actions to that court to the exclusion of all others.’ ” Double A Home Care, Inc. v. Epsilon Systems, Inc., 15 F. Supp. 2d 1114, 1115 (D. Kan. 1998) (quoting SRKC Services Corp. v. 1111 Prospect Partners, L.P., 105 F.3d 578 [10th Cir. 1997]).
Although the provision contains the language “the parties agree that venue for this action shall be changed to Shawnee County,” there is no clear indication that the parties intended for Shawnee County to hold exclusive venue. Nor have the parties manifested such an intent by their actions, in that they have filed several post-divorce motions to modify child custody issues with the Cowley County District Court.
Further, even if the provision could be construed as a forum selection clause, it was not enforceable. Such a clause “will not be enforced unless the selected forum bears ‘a reasonable relationship to the transaction.’ [Citation omitted.]” Aylward, 32 Kan. App. 2d at 700. Here, the district court made factual findings indicating that Hulse and the child had no connection to Shawnee County. Thus, the selection of Shawnee County as the place where venue would He bore no relationship to the custody issues before the court and was unenforceable.
Finally, Yount argues even if the provision qualified as an enforceable forum selection clause at one time, Hulse has since waived her right to enforce it. Yount notes that a waiver of contractual rights can be implied through a party’s actions. (Citing Prince Enterprises, Inc. v. Griffith Oil Company, 8 Kan. App. 2d 644, 664 P.2d 877 [1983].) He contends when Hulse sought relief from the Cowley County District Court through her motion to modify child support, she waived her right to enforce the venue clause incorporated into the divorce decree.
This court was presented with a similar situation in In re Marriage of Powell, 13 Kan. App. 2d 174, 176, 766 P.2d 827 (1988), rev. denied 244 Kan. 737 (1989). There, a husband accepted the assets from a judgment dividing marital property in a divorce action but then appealed, arguing the judgment was invalid because the action was brought in the wrong county. This court recognized the rule that a party may acquiesce to a judgment by accepting its benefits, thereby waiving the right to object to or appeal from such judgment. 13 Kan. App. 2d at 176. However, the court also recognized that this rule should not be strictly applied in domestic cases because of the equitable considerations which apply. 13 Kan. App. 2d at 176. Even so, the court found that the husband had waived his right to object to the judgment given that it appeared he had waited until after he was dissatisfied with the court’s judgment to raise his venue objection. 13 Kan. App. 2d at 177.
Similarly, in this case, Hulse had several opportunities to seek enforcement of the venue provision. She did not join Yount’s motion to change venue in 2001 or object when the court failed to rule on the motion. Nor did Hulse seek a transfer of venue when she filed her 2003 motion to modify child support or her 2004 motion seeking attorney fees in Cowley County District Court — motions which certainly came within the venue agreement’s application to “matters concerning the parties’ minor child.” Accordingly, we conclude Hulse waived enforcement of the venue agreement.
In summary, we do not believe that the parties’ venue agreement constitutes a valid or enforceable forum selection clause, but even if it did, we believe Hulse, by her own actions, waived enforcement of the clause.
Application of K.S.A. 2004 Supp. 60-609(a)
Yount points out that in addition to the UCCJEA, the district court cited K.S.A. 2004 Supp. 60-609 as support for its decision denying Hulse’s motion to change venue. However, in explaining its decision, the district court appeared to rely exclusively on the UCCJEA. Specifically, the court stated: “[T]he provisions of 38-1349 which convert!] exclusive and continuing jurisdiction, are determinative of this issue.” Thus, we do not agree that the district court relied upon K.S.A. 2004 Supp. 60-609 in denying venue.
Nevertheless, the judgment of a district court, if correct, may be upheld even though the district court relied upon the wrong ground or assigned erroneous reasons for its decision. See, e.g., Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 100, 106 P.3d 492 (2005). Thus, we will consider whether the denial of venue may be upheld under K.S.A. 2004 Supp. 60-609, which provides:
“(a) Upon the motion of a party, a district court may transfer any civil action to any county where it might have been brought upon a finding that a transfer would better serve the convenience of the parties and witnesses and the interests of justice.
“(b) In any action in the district court which is commenced pursuant to chapter 60 of the Kansas Statutes Annotated and in which it shall be made to appear that a fair and impartial trial cannot be had in the county where the action is pending, for reasons other than die disqualification of the judge, the court, upon application of either party, may change the place of trial to some county where the objection does not exist.
“(c) When all parties who are not in default agree and die agreement is approved by the court of original venue and the supreme court, a civil action may be transferred to any county.”
Neither party suggests that section (b) applies here, and section (c) is inapplicable since an agreement was not approved by the court of original venue or the Supreme Court. Rather, the only possible basis for Hulse to request a change of venue is found under section (a), which permits a transfer if it would “better serve the convenience of parties and witnesses and the interests of justice.” Yount argues that because this is a matter left to the discretion of the district court, we should affirm the district court’s denial of Hulse’s change of venue under this provision.
As stated, although the district court did not rely on K.S.A. 2004 Supp. 60-609 in denying venue, it nevertheless recognized that the statute applied. Further, the district court made factual findings which would support a denial of a change of venue under K.S.A. 2004 Supp. 60-609(a). For instance, the court found that Hulse lived and worked in Johnson County and the child’s numerous medical providers were located in the Kansas City area. The district court further pointed out that the only connection Hulse could establish with Shawnee County was that her parents lived there, which the court found was not relevant or material to the issue. Further, the district court found that Hulse was not credible with respect to her attempt to establish connections to Shawnee County.
Because we do not believe the district court abused its discretion in its findings concerning Hulse’s lack of contact with Shawnee County, we conclude the denial of Hulse’s venue was appropriate under K.S.A. 2004 Supp. 60-609(a).
Conclusion
In summary, we conclude the parties’ choice of venue, which was incorporated into the divorce decree, was not enforceable because the agreement concerned a matter excepted under K.S.A. 2004 Supp. 60-1610(b)(3) and because the parties, by their own actions, modified the provision by seeking modification of custody and child support in Cowley County District Court.
Further, we hold the parties’ venue agreement does not constitute a valid or enforceable forum selection clause; but even if it did, Hulse, by her own actions, waived enforcement of the clause.
Finally, we find that although the district court erred in applying the UCCJEA to support its decision to deny Hulse’s change of venue motion, tire decision is affirmed on separate grounds. Specifically, the district court’s factual findings were sufficient under K.S.A. 2004 Supp. 60-609(a) to conclude a transfer would not be convenient for the parties.
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McAnany, J.:
Tracy Schmidt appeals from the district court’s summary denial of his petition for habeas corpus pursuant to K.S.A. 2004 Supp. 60-1501. We affirm.
Schmidt was convicted of a 1986 theft in Cowley County and was placed on probation. In 1989, while on probation, he faced two additional charges. Following guilty pleas to both charges, Schmidt was given sentences that were consecutive to the 1986 sentence. He filed a K.S.A. 60-1507 action to set aside his plea because it was not knowingly and voluntarily made since he diought his 1989 sentences would be concurrent with his sentence for die 1986 crime. The trial court summarily dismissed the 60-1507 action. On appeal, the dismissal was reversed and the case was remanded for further proceedings.
Schmidt is now in the Lansing Correctional Facility (Lansing) serving a sentence imposed for a 2000 conviction in Cowley County. He sought access to his file at Lansing to obtain information to support his remanded 60-1507 action. When Lansing refused to release his file to him, Schmidt filed a petition for writ of habeas corpus under K.S.A. 2004 Supp. 60-1501 in Leavenworth County, seeking relief from the Cowley County sentences, an order requiring Lansing to provide the documentation Schmidt requested, and other relief. Schmidt’s claim was eventually reduced to two issues: (1) whether Schmidt had a constitutional right to have erroneous information corrected in his Kansas Department of Corrections (K.D.O.C.) files; and (2) whether Schmidt’s due process right was violated by the refusal to grant him access to the file. Schmidt has not briefed the due process issue, so that issue has been abandoned. Goldbarth v. Kansas State Board of Regents, 269 Kan. 881, 884, 9 P.3d 1251 (2000).
The district court summarily dismissed the 60-1501 petition, finding that Schmidt did not raise a constitutional issue and, therefore, the petition failed to state an actionable claim. The court also held that Schmidt’s claim that his K.D.O.C. file contained information relevant to his pending 60-1507 action should be directed to the court in Cowley County hearing the 60-1507 action. Schmidt now appeals.
In Anderson v. McKune, 23 Kan. App. 2d 803, 806-07, 937 P.2d 16, rev. denied 262 Kan. 959 (1997), the court stated: “An inmate’s claim under K.S.A. 60-1501 must assert the deprivation of a constitutional light or the court is without jurisdiction to consider the claim.” We review de novo the court’s dismissal of Schmidt’s claim for failure to state an actionable claim. In doing so we accept as true tiie allegations of Schmidt’s petition. See Foy v. Taylor, 26 Kan. App. 2d 222, 223, 985 P.2d 1172, rev. denied 268 Kan. 886 (1999). To avoid summary dismissal Schmidt must allege shocking and intolerable conduct or continuing mistreatment of a constitu tional stature. See Bankes v. Simmons, 265 Kan. 341, 349, 963 P.2d 412, cert. denied sub nom. Hannigan v. Stansbury, 525 U.S. 1060 (1998).
Schmidt claims he is entitled to his file at Lansing. He relies on K.S.A. 2004 Supp. 45-221(a)(29)(B), a part of the Kansas Open Records Act, which states:
“(a) Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose:
(29) Correctional records pertaining to an identifiable inmate or release, except that:
(B) the ombudsman of corrections, the attorney general, law enforcement agencies, counsel for the inmate to whom the record pertains and any county or district attorney shall have access to correctional records to the extent otherwise permitted by law.”
We have unlimited review over the legal question whether this statute grants Schmidt a right to his prison records. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). When a statute is plain and unambiguous, we must give effect to the intention of the legislature as expressed. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
Schmidt misreads the statute. The plain language of the statute gives Schmidt access to his correctional records “to the extent otherwise permitted by law.” This statute does not grant Schmidt access to his records, it simply does not override any other statute that grants him access to such records.
Is access to these records “otherwise permitted by law”? K.A.R. 10-13-l(a) grants a person the right to a copy of his or her criminal history record information from the Kansas Bureau of Investigation. Section 05-101(V) of the K.D.O.C.’s Internal Management Policy and Procedure allows inmates to have access to such records. Lansing provided Schmidt with the information required by I.M.P.P. 05-101(V).
K.S.A. 22-4709(a) grants Schmidt and his attorney the right to inspect “criminal history record information.” K.S.A. 22-4709(b) allows Schmidt and his attorney to make notes from the records but not copies. K.S.A. 2004 Supp. 22-4701(b) also provides a laundiy list of data that does not constitute “criminal history record information.” Schmidt does not claim that he asked to inspect this information. Rather, he asks for his entire K.D.O.C. master file. He cites nothing showing such a request is authorized by law.
Schmidt fails to show he is entitled to his file under any applicable statute or policy. He fails to show that he has used die procedures available to him to obtain the information to which he is entitled. Finally, he fails to show that his entidement to this file is a constitutional right.
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Greene, J.:
Marshall M. Voyles, II, appeals his convictions on four counts of aggravated criminal sodomy and four counts of aggravated indecent solicitation of a child, arguing that the court erred in failing to give a jury unanimity instruction and challenging the constitutionality of K.S.A. 21-3506(a)(l) and K.S.A. 21-3511(a). We affirm the convictions and reject the constitutional challenge.
Factual and Procedural Background
On October 8, 2002, C.C. (then age 10) and E.F. (then age 9) gave a letter to Thelma, their mother/step-mother respectively, stating: “I need to tell you something about dad. We wanted to tell you before but we were scared. He is makeing [sic] us do you know whate [sic].” When Thelma asked the girls for clarification, they responded that their dad (defendant Voyles) was “making them suck his thing.”
Later that day, Thelma took the girls to visit her aunt and disclosed to her the girls’ letter and description of what Voyles did. The aunt then talked to the girls about the incidents, and the girls explained to her that Voyles made them perform oral sex on him. The girls indicated the incidents occurred in their mother’s bed, in the front room of their house, in their dad’s truck, at a café, and at their grandmother’s house. Additionally, the girls indicated they had performed oral sex on Voyles to get out of being punished, to get out of doing chores, and to get ice cream.
Subsequently, John Theis, a social worker and therapist at Horizons Mental Health Center, conducted sexual abuse evaluations of the girls. E.F. told Theis that Voyles made her perform oral sex on him two or three times. E.F. described the act of oral sex in detail and stated the incidents occurred in Voyles’ bedroom and in the living room of their house in Norwich. E.F. explained that sometimes she or C.C. would play on the computer while the other one performed oral sex on Voyles. E.F. said the incidents had occurred during the summer.
In C.C.’s separate interview with Theis, she explained that Voyles made her perform oral sex on him in his truck, on his bed, and at her grandmother’s house. C.C. described the act of oral sex in detail and said Voyles made her perform oral sex on him three or four times. C.C. said the first incident occurred on the couch in the living room of her house. C.C. also told Theis that she played on the computer while E.F. performed oral sex on Voyles, and vice versa. Following one or two of the incidents, Voyles gave her and E.F. each a dollar. Like E.F., C.C. said the incidents had occurred during the summer.
The State charged Voyles with four counts of aggravated criminal sodomy, in violation of K.S.A. 21-3506(a)(l), and four counts of aggravated indecent solicitation of a child, in violation of K.S.A. 21-3511(a). The complaint initially alleged the incidents occurred on or about August 2002, but the trial court later granted the State’s request to amend the complaint to allege the incidents occurred between June 2002 and August 2002.
The jury found Voyles guilty of all counts. Voyles filed motions for mistrial and directed verdict of acquittal; both motions were denied. On January 2, 2004, the trial court ordered Voyles to serve a controlling prison sentence of 248 months.
Voyles timely appeals.
Was the District Court’s Failure to Give a Unanimity Instruction Clearly Erroneous?
Since Voyles did not request a unanimity instruction, we review his challenge for clear error. See K.S.A. 2004 Supp. 22-3414(3); State v. Banks, 273 Kan. 738, 743-44, 46 P.3d 546 (2002). A jury instruction error 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. 273 Kan. at 744.
A criminal defendant in Kansas has a fundamental right to jury unanimity. See K.S.A. 22-3421 and K.S.A. 22-3423(l)(d). Where several acts are alleged and any one of them could constitute the crime charged, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in such cases, our Supreme Court has required that either (i) the State elect the particular criminal act upon which it will rely for conviction or (ii) the trial court instruct the jury that all of the jurors must agree that the same underlying criminal act has been proved without a reasonable doubt. See State v. Carr, 265 Kan. 608, 618, 963 P.2d 421 (1998). The pattern jury instructions for Kansas contain a specific instruction for use in such cases. See PIK Crim. 3d 68.09-B (multiple acts).
According to the initial charging document, the four counts each of aggravated criminal sodomy and aggravated indecent solicitation of a child included two incidents with each child victim, with each incident involving both a solicitation and a subsequent sodomy; one incident “in Norwich,” and one incident “in a pickup truck.” The problem is that the evidence at trial included reference to more than two such incidents with each child; in fact, scrutiny of tire record reveals that there was reference to at least “two or three” such incidents involving E.F. and at least “three or four” such incidents involving C.C. The family member who first talked to the girls about these events testified that the girls described the inci dents as occurring to each of them in as many as five separate locations, and it was never established which of those locations were in Norwich.
In order to determine whether the State made an election as to the particular criminal acts relied upon, we analyze: (i) the original complaint, (ii) the opening statement and closing arguments of the prosecutor, and (iii) the totality of the jury instructions. See Banks, 273 Kan. at 745-46. Based upon this analysis, we are unable to conclude that there was an election made by the State. As noted above, the original complaint identifies only that there were two incidents involving C.C. and two incidents involving E.F., occurring in Norwich and in a pickup without any specificity of time, place, date, or precise events, except (as amended) that the acts occurred between June and August 2002.
The opening statement and closing arguments of the prosecutor generally referenced several incidents but also focused on incidents occurring in the house and in die truck, without any specificity as to either, and the girls identified at least two separate locations in their house and additional acts in their grandmothers house. Moreover, as to the incidents in the girls’ house, the prosecutor never distinguished between die incidents in the bedroom and the incidents in the living room.
The jury instructions stated that to establish that Voyles committed die crimes of aggravated criminal sodomy as to both C.C. and E.F., the State must prove: (1) Voyles engaged in sodomy with a child under age 14, and (2) this act occurred on or about June-August 2002, in Kingman County, Kansas; and to establish that Voyles committed the crimes of aggravated indecent solicitation of a child as to both C.C. and E.F., the State must prove: (1) Voyles solicited to commit the act of aggravated criminal sodomy, (2) the child was then a child under age 14, and (3) this act occurred on or about June-August 2002, in Kingman County, Kansas.
In oral argument before this court, the State was unable to indicate with any precision whatsoever which acts were relied upon for each of the criminal counts or convictions. Clearly, this was a multiple acts case, but we are not satisfied that there was an election made by the State and there was no specific jury instruction as to unanimity; thus, the requirements of our Supreme Court to ensure jury unanimity were not met.
The more difficult question is whether the district court’s failure to give a unanimity instruction was clear error entitling Voyles to a new trial. The proper analysis to malee this determination has been problematic. See, e.g., Ediger, Elect or Instruct: Preventing Evidence of Multiple Acts from Threatening Juror Unanimity in Criminal Trials, 74 J.K.B.A. 28 (May 2005); Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Cases in Kansas, 44 Washburn L.J. 275 (2005).
In State v. Hill, 271 Kan. 929, Syl. ¶ 3, 26 P.3d 1267 (2001), our Supreme Court adopted a two-step harmless error analysis:
“In applying a two-step harmless error analysis, the first step is to decide whether there is a possibility of jury confusion from the record or if evidence showed either legally or factually separate incidents. Incidents are legally separate when the defendant presents different defenses to separate sets of facts or when the court’s instructions are ambiguous but tend to shift the legal theory from a single incident to two separate incidents. Incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motivated by ‘a fresh impulse.’ When jury confusion is not shown under the first step, the second step is to determine if the error was harmless beyond a reasonable doubt with respect to all acts.”
Faithfully applying the Hill two-step analysis, we must first determine whether there is a possibility of juror confusion or evidence showing either legally or factually separate incidents. See 271 Kan. at 939. Here, there is little difficulty discerning that each of the multiple sexual acts described within the evidence occurred at different times within a 3-month period and each was motivated by a fresh impulse, thus establishing that particular type of factual separability required by the first prong of the Hill test. See State v. Arculeo, 29 Kan. App. 2d 962, 984, 36 P.3d 305 (2001), (Beier, J., concurring). Since we have not yet addressed jury confusion but have found factually separate incidents (which may equate to jury confusion under Hill — see 29 Kan. App. 2d at 984), it is rather unclear whether we reach the second prong of the Hill test to determine whether the error was harmless beyond a reasonable doubt with respect to all acts. See 29 Kan. App. 2d at 986. Clearly, however, to reverse on this basis alone would be consistent with the structural error approach that was explicitly rejected in Hill. See 271 Kan. at 939.
Based upon careful scrutiny of appellate case law addressing this issue in similar situations, harmless error must ultimately be determined from an examination of whether the defendant has presented separate defenses to any of the acts alleged. See Banks, 273 at 746; State v. Dean 272 Kan. 429, 443-44, 33 P.3d 225 (2001); Hill, 271 Kan. at 938-39; State v. Shoptaw, 30 Kan. App. 2d 1059, 1061, 56 P.3d 303, rev. denied 275 Kan. 968 (2002); Arculeo, 29 Kan. App. 2d at 974-75. Although we are cognizant that this appears to be merely an alternative analysis for step one of the Hill test, it is undeniably the only true touchstone for harmless error in cases of this nature. We respectfully conclude that in multiple acts cases, controlling case law requires that if, as here, it is determined that factually separate incidents have been alleged, failure to give a unanimity instruction must be deemed harmless if the defendant has presented a unified defense to all of those acts.
Here, Voyles attempts but fails to persuade us that his defense was not unified because of questions as to proper venue for some of the acts alleged. This is not persuasive because there was no objection as to venue for any of the acts, nor was the argument made at any time before the jury’s verdicts. The first and only challenge to venue was made posttrial in the defendant’s motion for acquittal, and it was denied based upon the applicability of K.S.A. 22-2603, K.S.A. 22-2604, or K.S.A. 22-2608. We conclude that posttrial arguments challenging venue as to some of the acts alleged do not establish a legally separate defense for purposes of requiring that a unanimity instruction be given. The only defense presented was a general denial of all the acts alleged, and the strategy at trial was to show minimal opportunity by the time line of the crimes and to attack the credibility of the victims’ stories. As summarized in the closing arguments:
“[Prosecutor:] And the issue is pretty — pretty simple. Did the defendant have those little girls engage in oral sex with him? Yes or no. That is what this case is about. That is what those eight counts are as you go back and you read those instructions and go through those things with the definition.”
“[Defense counsel:] . •. . Mr. Voyles doesn’t have any burden placed upon him, but he did indeed take the stand. And what did he tell you? He told you about when he was — what he did. What happened that summer. When he believes [C.C.] came out to live with them. Late June of 2002. We’re going to go through the time table here in a little bit. And he did deny these allegations. He looked at you and told you, ‘No, I didn’t do this to my lads.’ ”
As in Banks, Dean, Hiíl, Shoptaw and Arculeo, Voyles did not present a separate defense or offer materially distinct evidence of impeachment regarding one or more of the acts alleged. Instead, he presented a general denial of participation in any wrongful conduct with these girls during the summer of 2002. There was no reason to assume jury confusion, and any failure to give a unanimity instruction was harmless error.
In so holding, we reiterate the caveat from Hill:
“ ‘This holding should not be interpreted to give prosecutors carte blanche to rely on harmless error review, and it is strongly encouraged that prosecutors elect a specific act or the trial court issue a specific unanimity instruction. In many cases involving several acts, the requirement that an appellate court conclude beyond a reasonable doubt as to all acts will not be found harmless.’ ” 271 Kan. at 940.
Are KS.A. 21-3506(a)(l) and KS.A. 21-3511(a) Unconstitutional Under the Due Process Clause of the Fourteenth Amendment to the United States Constitution and §10 of the Kansas Constitution Bill of Rights?
Although Voyles’ brief on appeal consistently references tire wrong statute (see K.S.A. 2004 Supp. 21-3502[a][2] — rape), we proceed on the premise that the focus of his intended challenge is either K.S.A. 21-3506(a)(l) or K.S.A. 21-3511(a). Presumably, Voyles argues that the Kansas statutes defining aggravated criminal sodomy and aggravated indecent solicitation of a child are unconstitutional because they prohibit consensual intimate contact with an unmarried adolescent person. We review constitutional challenges to Kansas statutes de novo. See State v. Messer, 278 Kan. 161, 164, 91 P.3d 1191 (2004).
First, we note that Voyles did not challenge the constitutionality of K.S.A. 21-3506 and K.S.A. 21-3511(a) before the trial court. As a general rule, when constitutional grounds for reversal are asserted for the first time on appeal, they are not properly before an appellate court for review. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). There are three exceptions to this rule:
“(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason. [Citations omitted.]” 275 Kan. at 288-89.
Here, because Voyles failed to acknowledge the absence of a constitutional challenge below, he also failed to allege that any of the aforementioned exceptions apply to warrant examination of his claim of error here. Nevertheless, because Voyles’ challenge to the constitutionality of K.S.A. 21-3506(a)(l) and K.S.A. 21-3511(a) is purely a question of law that may be determinative as to his convictions, we elect to address his challenge on its merits.
“The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the Constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. [Citation omitted.]” State v. Groschang, 272 Kan. 652, 668, 36 P.3d 231 (2001).
Presumably, Voyles argues that K.S.A. 21-3506(a)(l) and K.S.A. 21-3511(a) violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution because they impose “a blanket proscription upon consensual, private intimate activities of all unmarried persons under age fourteen without regard to the[ir] maturity.” Prekminarily, we must question Voyles’ standing to challenge any statutory proscription of consensual activity, since there was no allegation that the conduct in this case was consensual. See State v. Thompson, 221 Kan. 165, 171-73, 558 P.2d 1079 (1976) (analyzing constitutionality of former sodomy statute; holding defendant lacked standing to challenge sodomy statute on ground that it unconstitutionally prohibited private, consensual acts of adults when defendant was convicted of forcible sodomy).
Even if Voyles would have standing to challenge the constitutionality of the statute on the grounds presented, the State correctly notes that his argument fails under the reasoning set forth in State v. Taylor, 33 Kan. App. 2d 284, 101 P.3d 1283 (2004), rev. denied 279 Kan. 1010 (2005). In Taylor, defendant challenged the constitutionality of K.S.A. 21-3504(a)(l) (aggravated indecent liberties with a child), which proscribes “[s]exual intercourse with a child who is 14 or more years of age but less than 16 years of age.” As in this case, defendant argued the statute imposes a “ ‘[b]lanket proscription upon consensual, private intimate activities of all unmarried persons under age sixteen without regard to the [sic] maturity, [which] violates the Due Process Clause.’ ” 33 Kan. App. 2d at 286.
The Taylor court explained that to prevail on appeal, defendant was required to demonstrate no rational relationship existed between K.S.A. 21-3504(a)(l) and a legitimate governmental objective. 33 Kan. App. 2d at 286 (citing State v. Risjord, 249 Kan. 497, 501-02, 819 P.2d 638 [1991]). The court then rejected defendant’s argument, holding: “The State has a compelling interest in the well-being of its children and in the exercise of its police powers may enact legislation to protect children from adult sexual predators. [Citation omitted.] We conclude a rational relationship exists between K.S.A. 21-3504(a)(l) and the legitimate interests of the State.” 33 Kan. App. 2d at 286.
The Taylor analysis is equally applicable here and leads to the conclusion that rational relationships exist between both K.S.A. 21-3506(a)(1) and K.S.A. 21-3511(á) and the legitimate interests of the State. For this reason, Voyles’ constitutional challenge fails.
Did the District Court Err in Ordering Voyles to Reimburse the State for Attorney Fees P
Finally, Voyles challenges the district court’s order that he reimburse the State for his attorney fees pursuant to K.S.A. 2004 Supp. 22-4513. We have unlimited review of this issue framing the interpretation of a statute. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
At the close of Voyles’ sentencing hearing, his attorney reminded the district court of “[ijndigent board reimbursement,” and the court stated that it would recommend such reimbursement as a condition of parole. In the court’s journal entry of sentencing, the other conditions of probation included as a comment: “The Defendant shall reimburse the Aid to Indigent Fund.”
The reimbursement statute, K.S.A. 2004 Supp. 22-4513, provides: ' "
“(a) If the defendant is convicted, all expenditures made by the state board of indigents’ defense services to provide counsel and other defense services to such defendant or the amount allowed by the board of indigents’ defense reimbursement tables as provided in K.S.A. 22-4522, and amendments thereto, whichever is less, shall be taxed against the defendant and shall be enforced as judgments for payment of money in civil cases.
“(b) In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant’s immediate family, the court may waive payment of all or part of die amount due or modify the method of payment.” (Emphasis added.)
We conclude that Voyles’ challenge is premature. The district court has not yet determined the amount and method of payment of such sum and therefore had no obligation to consider Voyles’ financial resources. The record is simply devoid of any indication that the court has spoken with finality on the matter of reimbursement, and we cannot consider the challenge until it has ripened.
We trust that in determining the amount and manner of payment, the district court should note that the better practice — if not the statutory requirement — is that a defendant’s ability to pay should be considered. See K.S.A. 2004 Supp. 22-4513(b).
Affirmed. | [
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Bukaty, J.:
Lorenzo Gary appeals the trial court’s revocation of his probation. The court based the revocation on another crime committed days before Gary was placed on probation but which did not come to light until after probation was granted. We reverse.
The State charged Gary with two counts of forgery. After striking a plea agreement, Gary entered a plea to the charges on April 21, 2004. On May 25, 2004, the trial court sentenced him pursuant to the agreement to an underlying sentence of 11 months and granted probation for 18 months.
Several weeks later, June 30th to be exact, the court issued an arrest warrant based upon the fact that on June 15, 2004, Gary had been charged with attempted robbery that allegedly occurred on May 22, 2004. Gary filed a motion to dismiss the warrant, and the court set a hearing.
At the hearing, Gary essentially admitted for purposes of argument that he committed the attempted robbery. He nevertheless argued that he did not violate any terms of his probation and should not be revoked for acts committed prior to the grant of probation. The trial court disagreed and revoked the probation.
K.S.A. 2004 Supp. 22-3716(a) provides the statutory justification for probation revocation. It reads, in relevant part: “At any time during probation . . . the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of release or assignment, a notice to appear to answer to a charge of violation or a violation of the defendant’s nonprison sanction.”
Implicit in our statutory provisions for probation is the understanding that if the trial court grants probation, the probationer is entitled to retain his or her liberty interest as long as he or she abides by the conditions on which probation is granted. A probation may not be revoked unless the probationer has failed to comply with the terms and conditions of his or her probation. State v. Garcia, 31 Kan. App. 2d 338, 342, 64 P.3d 465 (2003). At that point, the standard of review of a probation revocation is an abuse of discretion. State v. Rocha, 30 Kan. App. 2d 817, 819, 48 P.3d 683 (2002).
Here, Gary admitted to the trial court that it was more probable than not that the State could prove that he committed the crime of attempted robbery. That would unquestionably be a violation of the terms of Gary’s probation had it occurred during the probation period since he was ordered to obey all state laws during his term of probation. The question here is whether Gary’s probation may be revoked for an act which occurred prior to commencement of the probation period.
We find no Kansas cases exactly on point. We do note, however, that the Pennsylvania Superior Court recently answered the question in the negative. In Com. v. Infante, 850 A.2d 696, 700 (Pa. Super. 2004), that court ruled that “revoking probation for conduct committed prior to being sentenced to probation fails to serve its rehabilitative purpose.” The court elaborated that a sentence of probation allows an individual time to change their ways, while being warned that future bad conduct will result in revocation. It concluded that because “probation is intended to serve as a deterrent to future antisocial conduct, [and] an individual’s conduct is viewed prospectively,” it did not serve any purpose to give weight to conduct which occurred prior to sentencing. 850 A.2d at 701.
When the foregoing policy is considered along with the statutory language of K.S.A. 2004 Supp. 22-3716(a), we are compelled to the same result in this case. Kansas courts have consistently refused to depart from the plain language of that statute when addressing other issues presented under it. For example, in order for a trial court to retain jurisdiction to revoke probation, the revocation proceedings must be initiated within the probationary period. It is well established in Kansas that a trial court has jurisdiction to revoke probation as long as the proceedings are started before expiration of the probation term. State v. Gordon, 30 Kan. App. 2d 852, 855, 50 P.3d 100 (2002), revd on other grounds 275 Kan. 393, 66 P.3d 903 (2003). The Kansas Supreme Court’s decision reversing Gordon clarifies that pursuant to K.S.A. 2004 Supp. 22-3716(d), the ability to revoke probation extends for 30 days past the date the probationary term expires. 275 Kan. at 400-01.
As applied to the issues in this case, the language of K.S.A. 2004 Supp. 22-3716(a) could not be more clear. Although warrants may be issued “at any time during” probation, there is nothing in the statutory scheme which allows a warrant to be issued for conduct prior to probation. It is also clear in the language that revocation can only occur if there is a violation of terms of probation. Here, there were simply no terms in place when Gary allegedly committed the attempted robbery.
The fundamental rule of statutory construction to which all other rules are subordinate 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. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
We understand the less than desirable result that occurs, in one sense, in rewarding Gary for having the foresight to commit a crime prior to his sentencing date. On the other hand, the timing of the attempted robbeiy still retains consequences for Gary that are re lated to his forgery crimes. For example, any sentence for the attempted robbery will carry a mandatory prison sanction since it was a felony committed while on bond from the forgery charges. See K.S.A. 2004 Supp. 21-4603d(f). In any event, the undesirabiliiy of a result does not allow us to craft language onto a statute that is not already there. If the result requires a remedy, the legislature and not the courts must provide it.
Reversed. | [
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The opinion of the court was delivered by
Rosen, J.:
A jury found Trevejon Killings guilty of premeditated first-degree murder, and he received a sentence of life in prison without the possibility of parole for 50 years (hard 50 life sentence).
On direct appeal before this court, Killings argues: (1) The district court erred by failing to instruct the juiy on second-degree intentional murder and second-degree reckless murder as lesser included offenses of premeditated first-degree murder; (2) the prosecutor committed misconduct during his closing arguments; (3) the district court erred by answering a juror s question when Killings was not present; (4) the cumulative effect of these alleged trial errors denied him a fair trial; (5) the district court, for multiple reasons, erred when it imposed a hard 50 life sentence; and (6) the district court erred by imposing lifetime postrelease supervision instead of lifetime parole.
We conclude that the district court applied the wrong legal standard when it denied Killings’ request for a jury instruction on second-degree intentional murder. But, we find that this error was harmless considering the overwhelming amount of evidence establishing that the victim’s death resulted from a premeditated killing. We also conclude that the prosecutor’s comment during closing argument stating that Killings failed to take responsibility for the murder was improper, but we find that the comment did not constitute reversible error. The other alleged trial errors raised in this appeal have no merit and, thus, we affirm Killings’ premeditated first-degree murder conviction.
Killings also challenges the constitutionality of his hard 50 life sentence, which was imposed under K.S.A. 21-4635, as violating his right to a jury trial as guaranteed by the Sixth Amendment to the United States Constitution. We vacate the hard 50 life sentence as required by Alleyne v. United States, 570 U.S. -, 133 S. Ct. 2151, 2155, 2160-63, 186 L. Ed. 2d 314 (2013), and State v. Soto, 299 Kan. 102, 124, 322 P.3d 334 (2014) (K.S.A. 21-4635 violates Sixth Amendment because it permits judge to find by preponderance of the evidence existence of aggravating factor necessaxy to impose increased mandatory minimum sentence, rather than requiring a jury to make that finding beyond a reasonable doubt). We remand the case to the district court for resentencing.
Facts
During the evening of January 21, 2010, Antonio Jackson (a/k/a/ “Ghost”) was shot and Idlled inside Bobbie McCray’s apartment in Topeka. Prior to the murder, McCray was hosting a get-together at her apartment where Jackson, McCray, and three others were consuming crack cocaine in McCray’s bedroom. While this was going on, Deborah Metcalf, Brenda Moore, and Moore’s 2-year-old son remained in the front of the apartment where tire living room and kitchen were located.
After consuming his allotment of crack, Jackson asked the group whether they knew where he could barter marijuana (which he had) for more crack. McCray said she could make the trade for Jackson, so she took Jackson’s marijuana, left the apartment, and walked the short distance north up the alley to Killings’ home.
When McCray arrived at the residence, Killings let her inside and agreed to exchange some crack cocaine for the marijuana she had. After making the trade, Killings asked McCray who was at her apartment. McCray named each individual there, including Jackson. Notably, Jackson and another individual with the street name of “R.P.” had robbed Killings inside his home on December 22, 2009. After hearing that Jackson was at McCray’s apartment, Killings asked McCray if he could accompany her back to her apartment. McCray agreed, and the two of them left Killings’ home and walked back to her apartment.
On their way to tire apartment, a Topeka police vehicle drove up the alley towards them. Corporal Chris Sturgeon was riding in the vehicle and saw McCray (whom he recognized from previous encounters) and a black male walking with her. As the vehicle slowly passed by them and continued down the alley, Sturgeon said, “Hi” or “Hey, Bobbie” to McCray. Sturgeon later identified Killings as the man he saw walking with McCray that night.
McCray and Killings eventually arrived at the apartment. McCray entered first, followed by Killings. Metcalf and Moore, who were still in the front area of die apartment, saw Killings, whom tíiey both recognized, enter the apartment. Metcalf asked Killings, “[W]hat’s up?” or “[W]hat you doing here?” and Killings responded by placing a finger up to his mouth, signaling for Metcalf and Moore to be quiet. Killings proceeded to follow McCray down the hallway toward her bedroom.
Once Killings entered the bedroom, he pulled out a handgun, aimed it at Jackson, taunted him (saying “[Rjemember me[,] nigger?” “[Y]ou robbed me[,] nigger,” or “[M]otherfucker do you remember me?”), and fired his gun four times at Jackson. When the shooting began, Jackson lunged toward Killings, trying to get the gun away from him or to simply avoid being shot. Jackson sustained a single gunshot wound and died at the scene.
During the shooting, Renee Stewart, one of the individuals inside tire bedroom, ran out of the room, passing Killings. Killings and Stewart both ran toward the front door of the apartment, and the two got tangled up on the way out the door. Killings tripped over Stewart and then knocked her down outside the apartment. While on the ground, Stewart heard what she described as an ammunition magazine hit the ground beside her head. Stewart saw Killings run out the back gate of tire apartment complex and into the alley.
Stewart eventually got up and went downstairs to the apartment directly below McCray’s apartment. Moore, taking her son, also went to this apartment. The residents of the apartment called 911 to report the shooting, and, within minutes, law enforcement arrived at the apartment complex.
McCray and Metcalf sat on the steps outside McCray’s apartment until law enforcement arrived. As McCray and Metcalf were sitting there, they noticed an ammunition magazine lying on the ground nearby. They pointed out the magazine to law enforcement once the officers arrived, and the magazine was seized and taken into custody. Subsequent testing of the magazine revealed the presence of Killings’ DNA.
McCray and Metcalf were taken to tire law enforcement center and interviewed that night. Initially, McCray told detectives that she did not see who the shooter was because, as she explained later at trial, she did not want to get Killings in trouble. Later that same night, however, McCray identified Killings in a photo lineup as the shooter.
The detectives also interviewed Metcalf. She wrote a brief statement indicating that she was in the kitchen when the “suspect” came into the bedroom, shot three to four times, and left the apartment. After telling the detectives she knew where tire shooter lived, Metcalf went with law enforcement and showed them the house. The officers then called dispatch and asked it to look up any calls that had previously occurred at Killings’ address. The officers learned that there had been a prior robbery call at that address in December 2009. Killings was Usted as tire victim and “Ghost” (a/k/a/ Jackson) was Usted as the perpetrator of the robbery.
After Metcalf identified the shooter’s home, she was taken to the law enforcement center and shown three photo Uneups. The third lineup contained a photograph of KilUngs, and Metcalf identified KiUings as the person who shot Jackson. Detectives later interviewed Stewart, Moore, and Arlene Love, one of the individuals who was inside the bedroom during the shooting. Stewart and Love were shown photo Uneups and picked Killings’ photo as identifying tire shooter. Moore was shown a photo lineup containing Killings’ photo but did not pick any photo as identifying the shooter.
Pursuant to a search warrant, law enforcement officers searched Killings’ home and found a single unfired Winchester .40 cahber Smith and Wesson bullet on the floor of the home. This bullet matched the type of ammunition found in the magazine discovered outside of McCray’s apartment. The bullet also matched three .40 caliber shell casings that the officers found inside McCray’s apartment.
KilUngs turned himself in to law enforcement on January 23, 2010. After being advised of his rights, KilUngs provided a statement regarding his whereabouts during the evening hours of Jan uary 21,2010. Killings claimed that during the time of the shooting, he and his girlfriend were at Westridge Mall in Topeka where he purchased some clothes at a Footlocker store. After spending about 2 hours at the mall, the couple then headed for Lawrence, arriving there at approximately 7:30 p.m. Killings said that they tried to get into a casino in Lawrence, but he forgot to bring his ID. He then said that they returned to Topeka at approximately 9 p.m. and he spent the night at “Warren House” in Topeka. Killings specifically denied ever going over to McCray s apartment on January 21.
On January 27, the detectives who conducted the Killings interview spoke to the manager of Footlocker who was working at the store during the evening hours of January 21. The detectives showed the manager photos of Killings and his girlfriend and asked whether they came into the store on January 21. The manager said he did not believe they came into the store. When asked about a video surveillance system, the manager told the detectives that the store did not have one. According to the detectives, the mall had no video surveillance system in place.
The detectives also spoke with members of the Lawrence Police Department and asked whether there was a casino or an establishment referred to as a casino in Lawrence. The officers told the detectives that they were not familiar with anything like a casino in Lawrence.
Ultimately, Killings was charged with one count of premeditated first-degree murder. The case proceeded to a jury trial where McCray, Metcalf, Moore, Stewart, and Love all testified and identified Killings as die man who shot Jackson. Bertram Grant, another individual inside the bedroom, testified that he did not get a good look at the shooter but heard him ask, “ ‘ [ M ] otherfuclcer, do you remember me?’ ” prior to shooting Jackson. The jury convicted Killings of first-degree murder. The district court imposed a fife sentence with no possibility of parole for 50 years and ordered lifetime postrelease supervision. Killings filed a timely notice of appeal.
More facts will be stated as they become pertinent to the issues discussed below.
Lesser Included Offense Instructions
Killings argues that the district court erred when it denied his request that the jury be instructed on both second-degree intentional murder and second-degree reckless murder. In reviewing these alleged instructional errors, this court conducts a four-step analysis. Those steps, with accompanying standards of review, are:
“(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, die court should use an unlimited review to determine whedier the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set fordi in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
A. Second-Degree Intentional Murder
The State concedes that Killings preserved this instructional issue for appeal by requesting a second-degree intentional murder instruction at the jury instruction conference.
Second-degree intentional murder is a lesser included offense of premeditated first-degree murder because the only difference between the two crimes is the element of premeditation. See K.S.A. 21-3401(a) (first-degree premeditated murder is the killing of a human being committed intentionally and with premeditation); K.S.A. 21-3402(a) (second-degree intentional murder is the killing of a human being committed intentionally); State v. Warledo, 286 Kan. 927, 951, 190 P.3d 937 (2008) (“[Sjecond-degree intentional murder is a lesser included offense of first-degree premeditated murder because all the elements of second-degree murder are identical to some of the elements of first-degree murder” [citing K.S.A. 21-3107(2)(b)].). Accordingly, an instruction on second-degree intentional murder would have been legally appropriate.
With regard to whether an instruction for second-degree intentional murder would have been factually appropriate, K.S.A. 22-3414(3) states that “[i]n cases where there is some evidence which would reasonably justify a conviction of some lesser included crimes. .., the judge shall instruct the jury as to the crime charged and any such lesser included crime.” Killings points out that the district court, in ruling drat die evidence presented at trial did not support giving a lesser included offense instruction on second-degree intentional murder, stated: “The jury could find this was an intentional premeditated act . . . .” We agree with Killings’ argument that tiie district court verbalized the wrong legal standard. But we conclude that this error was harmless.
Even if we assume that the evidence presented at trial made a second-degree intentional murder instruction factually appropriate under K.S.A. 22-3414(3), we conclude that there is no reasonable possibility that the jury, had it been instructed on the lesser included offense, would have found Killings guilty of second-degree intentional murder instead of premeditated first-degree murder because of the overwhelming evidence presented on premeditation. See State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011) (If an error implicates a constitutional right, then “a Kansas court must be persuaded beyond a reasonable doubt that there was no impact on the trial’s outcome, i.e., there is no reasonable possibility that the error contributed to the verdict.”), cert. denied 132 S. Ct. 1594 (2012); see also State v. Brown, 298 Kan. 1040, 1051, 318 P.3d 1005 (2014) (if constitutional harmless error standard is met, then lower statutory standard under K.S.A. 60-261 is also satisfied).
Again, the only difference between premeditated first-degree murder and second-degree intentional murder is the element of premeditation. This court has explained premeditation as follows:
“[P]remeditation means to have thought the matter over beforehand and does not necessarily mean an act is planned, contrived, or schemed beforehand; rather, premeditation indicates a time of reflection or deliberation. [Citations omitted.] Further, it is not necessary that there be direct evidence of either intent or premeditation. Instead, premeditation, deliberation, and intent may be inferred from die established circumstances of a case, provided the inferences are reasonable. [Citation omitted.] In other words, ‘[i]ntent. . . may be shown by circumstantial evidence, and a person is presumed to intend all the natural consequences of his acts.’ [Citation omitted.]
“In considering circumstantial evidence, Kansas caselaw identifies factors to consider in determining whether die evidence gives rise to an inference of pre meditation that include: ‘(1) the nature of the weapon used; (2) lack of provocation; (3) tire defendant’s conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless.’ [Citations omitted.] But the analysis of what inferences can be reasonably drawn is not driven by the number of factors present in a particular case because in some cases one factor alone may be compelling evidence of premeditation. [Citations omitted.] Use of a deadly weapon by itself, however, is insufficient to establish premeditation. [Citation omitted.]” State v. Williams, 299 Kan. 509, 525-26, 324 P.3d 1078 (2014).
Killings’ jury was instructed on the concept of premeditation:
“ ‘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 life.”
There was abundant evidence presented at trial which established that Killings’ act of killing Jackson was premeditated and, thus, constituted a first-degree murder. After Killings learned from McCray that Jackson—the man who had previously robbed him— was at her apartment, Killings expressed an interest in going to McCrays apartment. Armed with a gun, Killings walked with McCray back to her apartment. When he followed McCray into the apartment, Killings signaled to Metcalf and Moore to remain quiet and followed McCray to tire bedroom. Upon entering the bedroom, Killings pulled out his gun, pointed it at Jackson, and taunted him. He then fired his gun multiple times at Jackson, hitting him once.
It can be clearly inferred from this evidence that once Killings realized he had an opportunity to exact revenge upon Jackson, he seized upon that opportunity. Prior to firing his gun at close range at Jackson, Killings had a significant amount of time to deliberate upon his chosen course of action while he' walked from his house to McCray’s apartment carrying a loaded gun. This evidence, along with the unprovoked nature of the shooting and the taunt Killings directed at Jackson prior to firing his weapon at him, all indicate the premeditated nature of Jackson’s murder.
In support of his argument that there was a reasonable possibility the jury could have convicted him of second-degree intentional murder had it received an instruction on that crime, Killings points to Love’s testimony in which she stated that when Jackson saw Killings, Jackson lunged at him. Killings argues that the juiy could have inferred from Love’s testimony that he only shot Jackson once he perceived that Jackson was going to attack him.
As the State points out in its brief, the problem with this argument is that Love did not testify that Jackson lunged at Killings before Killings had his gun out. Love stated that Jackson lunged at Killings after Killings began firing his weapon. Love speculated that Jackson lunged at Killings in order to avoid getting shot or to make an attempt at getting the gun away from Killings. Accordingly, Love’s testimony did not establish that Jackson lunged at Killings and Killings shot him in response. Instead, Love’s testimony corroborated the other witnesses’ testimonies establishing that Killings, unprovoked on that particular evening, shot Jackson.
Based on the evidence recounted above, we conclude that any error based on the district court’s failure to instruct on second-degree intentional murder constituted harmless error.
B. Second-Degree Reckless Murder
The State again concedes that Killings preserved this instructional issue for appeal by requesting an instruction on second-degree reckless murder at the jury instruction conference.
Second-degree reckless murder is the killing of a human being committed unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life. K.S.A. 21-3402(b). The act is a lesser included offense of premeditated first-degree murder. See State v. Martinez, 288 Kan. 443, 453, 204 P.3d 601 (2009) (“Reckless second-degree murder is a lesser included offense of premeditated first-degree murder.”). Accordingly, an instruction on second-degree reckless murder would have been legally appropriate.
With regard to whether such an instruction would have been factually appropriate, this court stated in State v. Deal, 293 Kan. 872, 884, 269 P.3d 1282 (2012), that second-degree reckless murder is a killing of a human that is not purposeful, willful, or knowing but which results from an act performed with knowledge that the victim is in imminent danger, although death is not foreseen. Killings argues that an instruction on second-degree reckless murder was factually appropriate given Stewart’s testimony at trial that she did not think Killings meant to kill Jackson.
During her direct examination, Stewart was asked why she did not initially identify Killings as the shooter when she spoke to detectives. Stewart answered: “For one, to me [Killings] was in his feelings why he did it. I don’t think that he meant to ldll [Jackson], but still it happened so, and [Jackson] wasn’t a bad person . . . .” The prosecutor later asked Stewart to explain this statement:
“Q. Now, you said something a minute ago that I want to talk about a little bit. You said you don’t believe [Killings] meant to do it?
“A. Yeah.
“Q. That he was into his feelings?
“A. Uh-huh.
“Q. What does that mean?
“A. That means it was revenge.”
Stewart went on to explain that Killings murdered Jackson in order to get revenge for Jackson and another individual robbing him.
Later, on cross-examination, Stewart was again asked what she meant when she said Killings did not mean to kill Jackson:
“Q. And when you say that Killings didn’t mean to Ml [Jackson], what you mean was he meant to punish him for what happened, but he didn’t mean to Ml him, is that what you meant?
“A. I just don’t think he meant to do it.”
The State contends that Stewart’s opinion as to whether Killings intended to ldll Jackson was, at most, pure speculation. The State argues that Stewart had no personal knowledge of Killings’ intent and there was no other evidence presented at trial that corroborated Stewart’s opinion of Killings’ intent.
Reviewing the entirety of Stewart’s comments, it is clear that what Stewart was trying to convey by saying she did not think Killings meant to ldll Jackson was that, but for Killings being upset at Jackson for robbing him, Killings would not have killed Jackson. Thus, her statement cannot be relied on as providing factual support for a second-degree reckless murder instruction. But even if we ignore Stewart’s later explanation for her statement and assume that she literally thought Killings did not mean to kill Jackson, her statement would be speculative at best and completely unsupported by the evidence establishing that Jackson’s death resulted from a premeditated, intentional killing. Accordingly, her statement does not provide factual support for a second-degree reckless murder instruction. Cf. State v. Calderon, 270 Kan. 241, 255-56, 13 P.3d 871 (2000) (in light of overwhelming evidence of intent, no evidence of recklessness, and despite defendant’s “self-serving statement” to police that he meant to cut victim on the arm instead of stabbing him in the abdomen, court held district court did not err in failing to instruct on reckless second-degree murder and reckless involuntary manslaughter).
Again, the evidence presented at trial established that Killings went to McCray’s apartment with the intent to exact revenge upon Jackson for the prior robbery. Once he was inside the apartment and made his way to the doorway of McCray’s bedroom, he pointed a gun at Jackson, taunted him, and shot at him multiple times, hitting him once. The only inference that can be gleaned from this evidence is that Killings intended to kill Jackson. Accordingly, an instruction on second-degree reckless murder would have been factually inappropriate. Cf. State v. Cordray, 277 Kan. 43, 56, 82 P.3d 503 (2004) (evidence sufficient to support jury verdict of unintentional but reckless second-degree murder where the defendant fired a gun in the general direction of a vehicle at night, striking an occupant); State v. Jones, 27 Kan. App. 2d 910, 915, 8 P.3d 1282 (2000) (held jury could have found evidence supporting recklessness where witnesses testified defendant shot gun randomly over crowd of people with eyes closed).
Based on the evidence presented at trial, we conclude that the district court did not err by denying Killings’ request to instruct the jury on second-degree reckless murder.
Prosecutorial Misconduct
Killings raises several instances of alleged prosecutorial misconduct during closing arguments. He claims that the prosecutor improperly commented on: (1) Killings’ exercise of his constitutional right to a jury trial; (2) Killings’ failure to present any evidence at trial; and (3) the credibility of several witnesses. Each of these alleged examples of misconduct will be addressed in turn.
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 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).
Prosecutors enjoy wide latitude in crafting closing arguments. See State v. Scott, 271 Kan. 103, 114, 21 P.3d 516 (citing State v. Miller, 268 Kan. 517, Syl. ¶ 4, 997 P.2d 90 [2000]), cert. denied 534 U.S. 1047 (2001). This latitude allows a prosecutor to make reasonable inferences based on the evidence, but it does not extend so far as to permit arguing facts not in evidence. State v. Tahah, 293 Kan. 267, 277, 262 P.3d 1045 (2011). For instance, “[pjrosecutors are not allowed to make statements that inflame the passions or prejudices of the jury or distract the jury from its duty to make decisions based on the evidence and the controlling law.” State v. Baker, 281 Kan. 997, 1016, 135 P.3d 1098 (2006). Arguments must remain consistent with the evidence. If they are not, the first prong of the prosecutorial misconduct test is met, and an appellate court must then consider whether the misstatement prejudiced the jury against the defendant and denied the defendant a fair trial. Bridges, 297 Kan. at 1014.
A. Were the Statements ImproperP
1. Commenting on Killings’ Right to a Jury Trial
The following exchange took place during the prosecutor’s closing arguments:
“You heard from, I believe eveiyone that was there, everyone that has information about the circumstances surrounding the murder of Mr. Jackson.
“The evidence is overwhelming that the defendant murdered Mr. Jackson on January 21, 2010. So why are we here with this land of evidence, this land of physical evidence and testimonial evidence, why are we here?
“We are here because the defendant was given an opportunity, he failed to accept responsibility for his homicidal act; and now that responsibility is passed along to you. Your responsibility noto is to hold him accountable for something of which he would not accept responsibility for.
“[DEFENSE COUNSEL]: Your Honor, I object to any acceptance of responsibility. That’s not what we are here for. I think it is improper.
“THE COURT: Okay. Counsel, go ahead and move on.
“[THE PROSECUTOR]: You have the task at this point to hold the defendant accountable for his acts, and what can you consider in doing that? You can only consider the evidence that was presented over the last week and a half. What is that evidence? Well, it is the testimony of many witnesses. It is the admission of many exhibits, all of which, which shed light on the circumstances surrounding the homicide of Mr. Jackson.” (Emphasis added.)
Killings contends that the prosecutor’s comment regarding his refusal to accept responsibility “cast negative aspersions” on him for exercising his constitutional right to a jury trial. Killings likens the prosecutor’s comment to impermissible comments regarding a defendant’s postarrest silence. See Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). A Doyle violation occurs when the government attempts to impeach a defendant’s version of events offered at trial on the basis that the defendant remained silent after being advised of his or her Miranda rights and, thus, did not offer the information at an earlier point in the criminal investigation. 426 U.S. at 617-19; see State v. Kemble, 291 Kan. 109, 121-23, 238 P.3d 251 (2010).
Killings’ comparison of the prosecutor’s statement here to a Doyle violation is unnecessary. There is already precedent in Kansas prohibiting a prosecutor from making disparaging comments about a defendant exercising his or her right to a jury trial. See State v. Snow, 282 Kan. 323, 336-39, 144 P.3d 729 (2006), disapproved on other grounds by State v. Guder, 293 Kan. 763, 267 P.3d 751 (2012); State v. Tosh, 278 Kan. 83, 91-92, 91 P.3d 1204 (2004). Furthermore, unlike a defendant in a Doyle case, who exercises his or her right to remain silent during a -post-Miranda warnings interrogation but later testifies at trial and provides an exculpatory version of events, Killings voluntarily provided police with an explanation of his whereabouts during the time of the shooting. Later, however, he chose not to testify at trial. Accordingly, the facts of this case malee it distinguishable from the typical Doyle-violation case.
Killings makes the additional argument that the prosecutor s statement here is similar to the statement found to be improper in Tosh. In Tosh, the prosecutor asked the jury to think about why the defendant was “bothering to do this” (i.e., go through with a jury trial) when he had already confessed to committing the charged crimes. This court determined that the prosecutor s comment improperly injected a matter outside tire evidence into the jury’s deliberations and concluded that tire comment was outside tire wide latitude given to prosecutors. 278 Kan. at 91-92.
Similarly, in Snow the defendant complained on appeal that the prosecutor denied him a fair trial by disparaging him for exercising his constitutional right to a jury trial. As recounted in Snow:
The prosecutor began her closing arguments by stating:
“ ‘[M]embers of the juiy, there may be some of you who are sitting there thinking, why have we given two days to listen to this evidence? And the answer is simply this: Everyone who’s charged with a crime in this country has an absolute right to a jury trial if that’s what they demand. The defendant has indicated he wants a juiy trial, and now he’s had it. Despite die amount of evidence that might be diere against them, if he wants it, I have to put it on, and we’ve done that.’ ” 282 Kan. at 337.
The prosecutor closed her arguments stating:
‘ “Now, the defendant wants his jury trial, he’s had his juiy trial, and it[’]s time to put an end to this nonsense.’ ” 282 Kan. at 337.
The Snow court ultimately concluded that “the prosecutor’s comments . . . injected a matter outside the evidence, inferring that Snow should have acceded to the State’s evidence and waived his right to a fair trial because of the strength of the State’s evidence against him.” 282 Kan. at 338; see also State v. Nye, 46 Kan. App. 2d 182, 194-95, 261 P.3d 923 (2011) (finding prosecutor’s statements that defendant knew when he refused to take breath test and during trial that he was guilty of DUI were improper because they “impugned [the defendant’s] right to contest the DUI charge and request a jury trial”), rev. denied 293 Kan. 1112 (2012).
Like the statements at issue in Snow and Tosh, the statement here injected a matter outside the evidence presented at trial by asking the jury, “ ‘Why are we here?’ ” i.e., going through with a juiy trial when the evidence of Killings’ guilt was so overwhelming. The prosecutor then answered his own rhetorical question by suggesting that he and the jury were enduring the burden of a jury trial because Killings “ ‘failed to take responsibility for his homicidal act.’ ” By making this argument, the prosecutor was clearly suggesting to the jury that Killings should have acceded to the State’s evidence and waived his right to a jury trial because of the strength of the State’s evidence against him. Accordingly, we find this statement outside the bounds of permissible argument.
Because Killings complains of other statements made by the prosecutor during closing arguments, we will analyze those statements before determining whether the prosecutor committed reversible misconduct during closing arguments.
2. Commenting on Killings’ Failure to Present Evidence
Next, Killings objects to a statement the prosecutor made near the beginning of his rebuttal arguments. To place the prosecutor’s comments in context, it is necessary to first examine the arguments that defense counsel made during his closing arguments.
Because the defense did not present any evidence at trial, defense counsel’s closing arguments consisted of pointing out supposed weaknesses in the State’s case identifying Killings as Jackson’s murderer. In making these arguments, defense counsel identified pieces of evidence that the State could have procured but did not present at trial:
• The photo that the detective showed to the manager at Footlocker to determine whether Killings was at the store at the time of the shooting.
• Testing which would have identified the biological material (e.g., blood) on the magazine clip containing Killings’ DNA.
• Comparisons of the DNA found on the magazine clip to the DNA of other people who were at McCray’s apartment on January 21.
• Testimony from “R.P.,” Jackson’s alleged accomplice in die robbery of Killings.
• The cell phone records for everyone who was at McCray’s apartment on January 21.
• Killings’ prior convictions to establish diat he had a history of engaging in violence (the district court sustained the State’s objection to this argument).
Throughout his closing arguments, defense counsel suggested that the State did not present this evidence at trial because the evidence did not fit within its theory of the case, i.e., that Killings murdered Jackson in order to exact revenge for the prior robbery. Because this evidence was not presented at trial, defense counsel argued that the State had not carried its burden of proof.
Near the beginning of the State’s rebuttal arguments, the prosecutor stated:
“[Defense Counsel] wants you to pay attention to the things that weren’t presented, and that’s somehow if it wasn’t presented it’s because the State didn’t want you to know about it, because it doesn’t fit tire theory of the case.
“Ladies and gentlemen, I don’t know how many pieces of evidence that were admitted and it is not the amount of items that really ultimately matters; but I will tell you this, every item that was admitted was presented to you by the State. Every witness that testified that relayed their information to you was presented by the State. I tell you that because the State is not hiding anything. We put on everything we had. Everything that was available.” (Emphasis added.)
The prosecutor proceeded to explain why certain pieces of evidence were not presented and disputed defense counsel’s suggestion that, without this evidence, the State had not carried its burden of proof.
Killings contends that the italicized portion of the prosecutor’s rebuttal argument above was improper because it implied that the defense had an obligation to present evidence at trial and failed to do so. In other words, the prosecutor attempted to shift the burden of proof to the defense.
“Kansas courts deem it ‘improper for the prosecutor to attempt to shift tire burden of proof to the defendant or to misstate the legal standard of the burden of proof.’ [Citations omitted.] But we grant prosecutors considerable latitude to address the weaknesses of the defense. [Citations omitted.]” State v. Duong, 292 Kan. 824, 832, 257 P.3d 309 (2011); see State v. McKinney, 272 Kan. 331, 346, 33 P.3d 234 (2001) (where jury has been properly instructed that prosecution has burden of proof, a prosecutor may argue inferences based on the balance or lack of evidence), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006). Though this court has made clear recently that “a prosecutor commits misconduct by making an improper argument, even if the improper argument is made in response to arguments or statements by defense counsel,” State v. Marshall, 294 Kan. 850, 860, 281 P.3d 1112 (2012), the prosecutor’s comment must still be evaluated in tire context of which it was made. See State v. Williams, 299 Kan. 911, 937-41, 329 P.3d 400 (2014).
“When a prosecutor’s comment ‘constitutefs] only a general question about the absence of evidence to rebut tire State’s witnesses ... [and] not an impermissible remark about the defendant’s failure to testify or an attempt to shift tire burden of proof to the defense,’ the comment is within the wide latitude afforded to the prosecution. [Citations omitted.]” State v. Peppers, 294 Kan. 377, 397-98, 276 P.3d 148 (2012).
Applicable here, this court has held that a prosecutor does not shift tire burden of proof by pointing out a lack of evidence to support a defense or to corroborate a defendant’s argument regarding holes in the State’s case. See, e.g., Williams, 299 Kan. at 939 (“[I]f a defendant asks the jury to draw an inference that the State’s evidence is not credible because the State did not call a witness to corroborate other evidence, we have held that the State can refute the inference by informing the jury that the defense has the power to subpoena witnesses, including those who would be favorable to the defense.”); State v. Wilson, 295 Kan. 605, 623-25, 289 P.3d 1082 (2012) (holding prosecutor’s arguments that defendant had no explanation for his DNA found near crime scene did not improperly shift burden of proof; rather, it was comment on efficacy of defense and pointed jurors to lack of evidence supporting defendant’s version of events); State v. Cosby, 293 Kan. 121, 135-37, 262 P.3d 285 (2011) (finding prosecutor’s statements asking jury if it had heard any evidence that suggested witness’ testimony was wrong did not improperly shift burden of proof be cause prosecutor was only commenting generally on defendant’s failure to rebut witness’ testimony and not commenting on defendant’s failure to testify); Duong, 292 Kan. at 832-33 (holding prosecutor’s arguments questioning defendant’s failure to present evidence of misidentification did not improperly shift burden of proof because prosecutor did not call upon defense to disprove crime’s occurrence but rather pointed out that evidence supporting defense theory was thin); State v. Stone, 291 Kan. 13, 18, 237 P.3d 1229 (2010) (finding prosecutor’s statements that defendant had “ ‘obstacles to overcome’ ” were within considerable latitude granted to prosecutors to comment on weaknesses of defenses).
Contraiy to Killings’ arguments, the prosecutor did not suggest or infer that Killings had the burden to show that he was not involved in Jackson’s murder. Rather, the prosecutor, by merely noting that the State had presented all the evidence admitted at trial, was responding to defense counsel’s argument that the State chose not to present certain pieces of evidence that did not fit within its theory of the case. As the cases cited above show, it would have been permissible for the prosecutor to go one step beyond his statement and explicitly note in rebuttal that the defense had the ability to present the missing evidence it identified as damaging to the State’s case. Accordingly, the prosecutor’s comments were not outside the wide latitude allowed in discussing evidence.
3. Commenting on the Credibility of Witnesses
Lastly, Killings points to four instances during the prosecutor’s closing and rebuttal arguments which he argues constitute improper comments on the credibility of witnesses.
During the prosecutor’s closing arguments, he discussed the testimonies of the people inside McCray’s apartment when the shooting occurred:
“These people are not about the system, but they did their job. Did they run to the police and tell them what happened, no. They had to be found, except for Bobbie and Deborah stayed around where they are. They came down to the police station. They all gave their story, and when it first started they didn’t say who did it. They didn’t want to be involved in the homicide to begin with. They don’t want to be involved in fingering anyone because they know they have to come to court and testify, but when push came to shove they told law enforcement who did it, and then they came in this courtroom and told all of you who did it, and I made each one of them point at the defendant and identify him. Because that’s not easy to do, especially if that’s not the person. They were cross examined by [defense counsel] thoroughly, hammered at times, rightfully so. The defendant has that right, but they never wavered, ladies and gentlemen. They told you what happened on the 21st day of January, 2010.” (Emphasis added.)
Defense counsel suggested during his closing arguments that the testimony of the witnesses inside McCray s apartment during the shooting, identifying Killings as the shooter, could not be trusted due to most of them admitting to consuming crack cocaine just before the shooting. He also suggested that these witnesses may have spoken to each other before speaking individually to law enforcement in order to concoct a story identifying Killings as the shooter. Though there was no evidence admitted at trial to support his allegations, defense counsel suggested that R.P., Jackson’s alleged accomplice in the robbery of Killings, was the murderer and that the witnesses inside the apartment were protecting R.P. because he was their crack dealer.
The prosecutor responded to these arguments during his rebuttal arguments by making the following statements:
• “Now, to pull off this conspiracy [i.e., frame Killings for Jackson’s murder,] as I indicated earlier, it is quite elaborate and quite involved, and it requires scientific expertise, the transference of DNA, knowing how to do that, and where to get it. It just boggles the mind to even imagine how Bobbie and Deborah and Renee and Bernard and Arlene and Ms. Moore could put this altogether and keep it together. If it’s made up, if it’s fabricated it is going to fall apart at some point. These people are not going to keep it together over time, and yet if they have. Why? Because that’s what happened, it’s easy to keep it together when all you are repeating and all you are telling is what you saw, what you heard and idhat you did. It is much harder when you fabricate things.” (Emphasis added.)
• “I’ve heard no evidence and maybe you have, where RP was the [crack] dealer. I believe in saying that [defense counsel is] suggesting maybe RP was the murderer and all these witnesses are framing his client in order to protect RP.
“Now, the only evidence I’ve heard regarding the crack dealer is the defendant. That’s where at least Bobbie McCray was going to buy her crack, in fact, traded for crack; and I think [defense counsel] is right. I think crack addicts wrongly so want to protect their dealer because that’s the source of their supply, to feed their addiction; but ladies and gentlemen, even crackheads draw a line in the sand and he’s dead. When push came to shove they realized what went down inside that apartment as much as theij didn’t want to be involved and as much as they initially did not want to cooperate with the law enforcement. I think in the end they even realized this crossed the line. Yes we are crack addicts. Yes, we’ve done things in the past we regret, but toe are not murderers and they can’t condone that. So I think in the end they realize and went above and beyond what is acceptable even with their lifestyle, and that’s why they came in here and told you what they told you. Not because they are setting up Mr. Killings for a fall, because again they have really no interest in dealing with law enforcement or the courts because of what they do. They want to avoid that. But even they have a conscience.” (Emphasis added.)
• “[I] talked in detail about Ms. McCray, Ms. Metcalf, Ms. Stewart, a lot of the individuals, and there’s one that I mentioned earlier which kinda stands out to me. I don’t know why. I guess maybe it is the way she presented herself on the stand, and during her interview, Arlene Love. Now think for yourself as far as you want to pick apart, which you’ll do. Arlene Love is a person that will have, if somebody told her to do something she didn’t want to do or didn’t believe, Arlene Love ain’t doing it. She is a strong woman, admitted crack addict, a strong woman. She is not going to take the fall for anyone else. She is net going to fall into conspiracy of other people if it did happen, because she doesn’t want the police up in her business. She does her thing handles her business and moves along. You saw her. She never toaveredfrom the time of the interview to the time she took the stand. She is a strong woman.” (Emphasis added.)
Killings argues that the italicized portions of tire above statements constitute impermissible comments on the credibility of witnesses.
It is improper for a prosecutor to offer his or her personal opinion as to the credibility of a witness, including the defendant. See State v. Elnicki, 279 Kan. 47, 59-64, 105 P.3d 1222 (2005); State v. Davis, 275 Kan. 107, 121-23, 61 P.3d 701 (2003); State v. Pabst, 268 Kan. 501, 506-07, 996 P.2d 321 (2000). A prosecutor, however, “may explain the legitimate factors which a jury may consider in assessing witness credibility and may argue why the factors present in the current case should lead to a compelling inference of truthfulness.” State v. Scaife, 286 Kan. 614, Syl. ¶ 5, 186 P.3d 755 (2008); see, e.g., State v. Huerta-Alvarez, 291 Kan. 247, 262, 243 P.3d 326 (2010) (finding that prosecutor’s remarks in closing regarding victim’s credibility “were generally in the nature of reviewing what [the victim] said, asking the jury to assess the credibility of her statements, and querying the jury why she would not have made up a more convenient story if in fact she had fabricated the story at all”).
In commenting on the credibility of the witnesses to the shooting, the prosecutor never offered a personal opinion as to whether the witnesses were credible (<?.g., I believe Bobbie McCray is credible). Instead, the comments quoted above show that the prosecutor directed the jury to the evidence and factors he argued established the credibility of the witnesses. Thus, we conclude that the statements were not outside the wide latitude allowed to a prosecutor in discussing die evidence presented at trial.
B. Did the Prosecutor Commit Reversible Misconduct?
As determined above, we deem one comment to be improper— the prosecutor s comment regarding Killings’ decision not to accept responsibility and instead exercise his right to a jury trial. We now move on to the second prong of the prosecutorial misconduct analysis. This involves a three-factor inquiry: (1) whether the misconduct was gross and flagrant; (2) whether it was motivated by pros-ecutorial ill will; 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. No one factor is controlling. State v. Crawford, 300 Kan. 740, Syl. ¶ 3, 334 P.3d 311 (2014); State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013); State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004). Before the third factor can ever override the first two factors, an appellate court must be able to say that the State can meet both the statutory harmlessness standard stated in K.S.A. 60-261 and the constitutional standard stated in Chapman v. California, 386 U.S. 18, 87 5. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967). Crawford, 300 Kan. 740, Syl. ¶ 4; Bridges, 297 Kan. at 1012 (citing Tosh, 278 Kan. at 97); see State v. Ward, 292 Kan. 541, Syl. ¶¶ 5-6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
We have observed that, as a practical matter, the result of the harmless error evaluation depends on the outcome of the Chapman constitutional standard. “[Bjotli the constitutional and non-constitutional error clearly arise from tire very same acts and omissions,” and the constitutional standard is more rigorous. Bridges, 297 Kan. at 1015 (citing State v. Herbel, 296 Kan. 1101, 1111, 299 P.3d 292 [2013]). Thus, the State necessarily meets the lower statutory standard under K.S.A. 60-261 if it meets the higher constitutional standard. 296 Kan. at 1111.
With regard to the first factor—whether the misconduct was gross and flagrant—we consider whether the misconduct was repeated, was emphasized, violated a long-standing rule, violated a clear and unequivocal rule, or violated a rule designed to protect a constitutional right. Marshall, 294 Kan. 850, Syl. ¶ 6. Here, the prosecutor only referred one time to Killings’ decision to exercise his constitutional right to a jury trial (i.e., “[W]hy are we here?”). Though we have held that it is improper for a prosecutor during closing arguments to impugn a defendant for choosing to exercise his or her right to a jury trial, see State v. Snow, 282 Kan. 323, 338, 144 P.3d 729 (2006), disapproved on other grounds by State v. Gruder, 293 Kan. 763, 267 P.3d 751 (2012); Tosh, 278 Kan. at 91-92, we have also held that it is proper for a prosecutor to argue that, based on the evidence, the defendant, by providing an implausible alibi, was not taking responsibility for the defendant’s actions and that the jury should hold the defendant accountable. See State v. Finley, 273 Kan. 237, 244-45, 42 P.3d 723 (2002). A review of the prosecutor’s statement shows that the bulk of the statement consisted of arguments that are proper under Finley. Accordingly, we find that the prosecutor’s lone reference to Killings’ decision to proceed with a jury trial was not gross and flagrant.
In analyzing whether a prosecutor’s misconduct was motivated by ill will, we consider whether the misconduct was deliberate, repeated, or in apparent indifference to a court’s ruling.” Marshall, 294 Kan. 850, Syl. ¶ 7. Again, the prosecutor made a single reference to Killings’ decision to proceed with a jury trial. The bulk of his statement, however, was proper under Finley. When defense counsel lodged an objection, counsel complained of the prosecutor’s argument suggesting that Killings failed to accept responsibility. The district court did not make an explicit ruling on the objection but directed the prosecutor to “go ahead and move on.” The prosecutor proceeded to argue that the juiy, based on the evidence, should hold the defendant accountable—again, a proper argument under Finley. Accordingly, we conclude that there was no evidence of ill will on tire part of the prosecutor.
Finally, we turn to the third factor: Was the evidence of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors? In answering this question, the State, as the party “benefitting from the prosecutorial misconduct, bears the burden to establish beyond a reasonable doubt that the error did not affect tire defendant’s substantial rights, i.e., there is no reasonable possibility tire error affected the verdict.” State v. Inkelaar, 293 Kan. 414, 431, 264 P.3d 81 (2011); see, e.g., State v. Raskie, 293 Kan. 906, 918, 269 P.3d 1268 (2012) (finding prosecutor’s misstatement did not affect the outcome of the trial in light of tire entire record).”
As recounted above, the State presented overwhelming evidence (e.g., five eye-witnesses who identified Killings as tire shooter and DNA evidence linking Killings to tire ammunition magazine discovered outside of McCray’s apartment door) establishing that Killings intentionally and with premeditation murdered Jackson inside McCray’s apartment. Based on this evidence, we can conclude that there is no reasonable possibility that the single improper comment in the prosecutor’s closing argument affected the verdict. Accordingly, we conclude that the prosecutor did not commit reversible misconduct.
Right to be Present
Killings argues that an exchange between the district court judge and the jury foreman violated his constitutional and statutory rights to be present at all critical stages of his criminal prosecution. A claim that a defendant was deprived of his or her statutory and constitutional rights to be present during a portion of the trial raises legal questions that are subject to unlimited review on appeal. State v. Engelhardt, 280 Kan. 113, 121, 119 P.3d 1148 (2005).
During a break while the jury was deliberating, the judge advised the attorneys and Killings of the following:
“I will advise you that just before the jury foreman approached me after all of the jurors had left, and he said I don’t know if I can ask you this question or not, and he said there are only three ways this can go, is that correct? And I really didn’t answer him. I just nodded, and I just, he said, you know, guilty, not guilty or hung? And I said if you have a question, I would like for you to write it down for me in a question format on the form; and he said, well, I just wanted to bring this up not in the presence of everyone. We haven’t discussed that as an issue, but he was thinking about it, and I told him that I would advise you of what he said and if, if he felt that it was necessaiy to, the Court would like that in a written form from him if you wanted to ask that question, but I did not give him any response.”
Killings raised no concern about or objection to the judge’s interaction with the jury foreman.
In his motion for a new trial, Killings argued that die judge’s encounter with the jury foreman constituted a conference between the judge and juror which required Killings’ presence. The district court filed a memorandum decision and order denying Killings’ motion. In the decision, the district court recounted the interaction with the juror:
“Just after jurors recessed for lunch, the Jury Foreman returned to Division 11, approached the Court and stated, Tm not sure if you can answer this question, but the way I see it is this thing could go three ways: guilty, not guilty, or hung.’ The Court instructed the foreman to submit his questions to the Court in writing on the form provided by the Court. The foreman then stated that although he wanted to bring up this point to the Court, he did not want to do so in the presence of the other jurors. He added that jurors had not discussed the matter, but he had been thinking of it. The Court advised the foreman that the Court would inform the parties of his question and of the Court’s instruction. That concluded the interaction. The foreman never submitted written inquiry about this topic.”
The district court judge concluded that the exchange between the juror and herself did not constitute reversible misconduct.
A criminal defendant has a constitutional and statutory right to be present at all critical stages of his or her trial. See Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353, reh. denied 398 U.S. 915 (1970); K.S.A. 22-3405(1); State v. Bolton, 274 Kan. 1, 4-5, 49 P.3d 468 (2002). K.S.A. 22-3405(1) provides in relevant part: “The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the juiy and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.” This court has interpreted K.S.A. 22-3405(1) to mean:
“[A] felony defendant must be present at any stage of the trial when the jury is in the courtroom or when the defendant’s presence is essential to a fair and just determination of a substantial issue. The statutory command of K.S.A. 22-3405(1) is analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause of die federal Constitution that a criminal defendant be present at any critical stage of the proceedings against him or her.” Engelhardt, 280 Kan. 113, Syl. ¶ 2.
“It is well settled that a conference between a trial judge and a juror is a critical stage of die trial at which a criminal defendant has a constitutional right to be present.” State v. Mann, 274 Kan. 670, 682, 56 P.3d 212 (2002). Furthermore, K.S.A. 22-3420(3) requires that any question from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant’s presence unless the defendant is voluntarily absent. See State v. Bowen, 299 Kan. 339, 353, 323 P.3d 853 (2014); State v. King, 297 Kan. 955, 967, 305 P.3d 641 (2013).
To classify the exchange that took place in this case as a “conference” requiring Killings’ presence is tenuous at best. Cf. Mann, 274 Kan. at 680-81 (court found it was error for trial judge, outside presence of defendant, to formally question four jurors about trial spectator whose conduct was making them uncomfortable); State v. Fulton, 269 Kan. 835, 844-45, 9 P.3d 18 (2000) (court foúnd it was error for trial judge, outside presence of attorneys and defendant, to question two jurors about misconduct occurring during deliberations); State v. McGinnes, 266 Kan. 121, 127-28, 967 P.2d 763 (1998) (court found it was error for trial judge to have an ex parte communication with the jury advising it about why a witness did not testify at trial); State v. High, 260 Kan. 480, 484-85, 922 P.2d 430 (1996) (court found it was error for trial judge, outside the presence of defendant, to question a juror about her business relationship with the victim’s family); Crease v. State, 252 Kan. 326, 328-33, 845 P.2d 27 (1993) (court found it was error for trial judge to have an in chambers ex parte communication with at least one juror concerning juror’s reluctance to apply felony-murder rule).
Here, the jury foreman voluntarily approached the district court judge and attempted to ask the judge a question. The judge’s description of the encounter, when viewed in its entirety, indicates that the judge, by nodding, did not give an answer to the juror s question but simply acknowledged that she had heard the juror s question. The judge then proceeded to advise the juror of the proper procedure for submitting a question to the court. The juror, however, never submitted the question. Consequently, the statutory mandate of answering a jury’s question in open court in the presence of Killings was never implicated because the district court judge never gave an answer to the jury foreman’s question.
Under the facts of this case, we conclude that the brief interaction the juiy foreman initiated with the district court judge did not violate Killings’ constitutional or statutory rights to be present at all critical stages of his criminal prosecution.
Cumulative Error
Next, Killings asserts that even if the issues that he has raised do not rise to the level of reversible error individually, the cumulative effect of these errors operated to deny him a fair trial, requiring reversal of his conviction.
Cumulative trial errors, when considered collectively, may require reversal of the defendant’s convictions when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. If the evidence is overwhelming against the defendant, however, no prejudicial error may be found based upon this cumulative error rule. State v. Burns, 295 Kan. 951, 960, 287 P.3d 261 (2012).
In the preceding analysis, we assumed the existence of one error—the district court’s failure to instruct on second-degree intentional murder—and found the presence of another—the prosecutor’s improper comment during closing arguments regarding Killings’ decision to exercise his right to a jury trial. But based on the overwhelming evidence presented at trial establishing Killings’ guilt for premeditated murder, we found both errors harmless. Considering the errors collectively, we conclude that they did not aggregate so as to deny Killings a fair trial. We reach this conclusion based on the errors being unrelated to one another and the overwhelming evidence presented at trial, which included testimony from five eyewitness.es, establishing that Killings, with premeditation, murdered Jaclcson.
In light of the record as a whole, we conclude there is not a reasonable possibility the combined errors affected the outcome of tire trial.
Hard 50 Life Sentence
After Killings was found guilty of premeditated first-degree murder, the State sought a hard 50 life sentence, alleging Killings knowingly or purposely lulled or created a great risk of death to more than one person (risk of death aggravator). See K.S.A. 21-4636(b). The evidence presented at trial established that Killings shot at Jackson multiple times, hitting him once, while Jackson and four other individuals were inside McCray’s bedroom. Citing this evidence, the district court found Killings risked the hves of more than one person when he shot at Jackson.
At sentencing, the State also asked that the district court consider Killings’ actions while incarcerated and awaiting sentencing in determining whether to impose a hard 50 life sentence. Through the testimony of jail staff, the State presented evidence at sentencing that (1) Killings punched another inmate at the Shawnee County Detention Center; (2) he resisted officers’ attempts to remove him from his cell and ultimately had to be tased (Killings’ actions resulted in his sentencing hearing being continued to a later date); and (3) after being tased, jail staff searched Killings and found a shank tucked between two socks he was wearing on one foot. The district court judge stated that she also considered this evidence in imposing a hard 50 life sentence.
Now on appeal, Killings raises three arguments for why his hard 50 sentence should be reversed: (a) The aggravating factors used to impose the sentence should have been proven to a jury beyond a reasonable doubt; (b) insufficient evidence supported the district court’s finding of the risk of death aggravator; and (c) the district court erred in relying in part on a nonstatutoiy factor (behavior in jail while awaiting sentencing) to impose the hard 50 life sentence.
In State v. Soto, 299 Kan. 102, 120-24, 322 P.3d 334 (2014), this court analyzed Kansas’ hard 50 life sentencing statute in light of Alleyne v. United States, 570 U.S _, 133 S. Ct. 2151, 2155, 2160-63, 186 L. Ed. 2d 314 (2013). In Alleyne, the United States Supreme Court held that the right to a jury trial under the Sixth Amendment to the United States Constitution requires that any fact increasing a mandatory minimum sentence for a crime must be proved to a jury beyond a reasonable doubt. 133 S. Ct. at 2158. Applying Alleyne’s holding to the statutory hard 50 sentencing scheme, this court in Soto determined that the process allowing a judge to find the existence of one or more aggravating factors, instead of requiring a jury to find those factors beyond a reasonable doubt, violates the Sixth Amendment. Soto, 299 Kan. at 122-24.
In tire present case, it is evident that the district court, pursuant to the statutory scheme then in place, made explicit factual findings that subjected Killings to an enhanced sentence. This was constitutional error. Based on Alleyne and Soto, we conclude that Killings’ sentence was imposed in violation of his Sixth Amendment right to a jury trial. Because the State failed to argue on appeal whether the hard 50/Alleyne error in this case could be declared harmless, we refrain from addressing that issue. Accordingly, we must vacate Killings’ hard 50 life sentence and remand for resent-encing. Consistent with Soto, and State v. Astorga, 299 Kan. 395, 401-02, 324 P.3d 1046 (2014), we refrain from addressing whether the amended hard 50 sentencing statute, K.S.A. 2013 Supp. 21-6620, should be applied retroactively to Killings because such a question is not yet ripe for appeal. Accordingly, the decision in this case does not prevent the parties from presenting their respective arguments to the district court at resentencing regarding application of the amended hard 50 sentencing scheme.
With regard to Killings’ argument that insufficient evidence supported the district court’s finding of the risk of death aggravator, in Soto we addressed Soto’s claim that the evidence of the aggravating factor was insufficient, in which case remand would have been inappropriate under K.S.A. 2013 Supp. 21-6620(e). The Soto court stated: “While we decline to decide at this juncture whether Soto could be resentenced under the amended hard 50 sentencing statute, we find it prudent to address Soto’s claim that the evidence of tire aggravating circumstance was insufficient.” 299 Kan. at 129. We followed this same approach in several subsequent cases. See State v. Hayes, 299 Kan. 861, 866-69, 327 P.3d 415 (2014); State v. Lloyd, 299 Kan. 620, 642-45, 325 P.3d 1122 (2014); State v. DeAnda, 299 Kan. 594, 602-05, 324 P.3d 1115 (2014); Astorga, 299 Kan. at 397-404; State v. Hilt, 299 Kan. 176, 201-06, 322 P.3d 367 (2014).
Recently, in State v. Roeder, 300 Kan. 901, 942, 336 P.3d 831 (2014), we reexamined this line of cases and concluded that “[ojnce the court determined that Soto’s sentence had to be vacated because of the unconstitutional sentencing scheme, the question of whether sufficient evidence existed to meet the requirements of the unconstitutional statute was rendered moot.” In this case, like in Roeder, questions regarding the sufficiency of any aggravating factor evidence will be germane only if the prosecutor elects to seek resentencing of Killings under the retroactive provision of K.S.A. 2013 Supp. 21-6620(e). And if the prosecutor so elects, the evidence—and even the aggravating factors relied upon—may differ from what was previously presented. Consequently, “[wjhether tire sentence might also have been subject to being vacated based upon an insufficiency of the evidence if the sentencing scheme had not been found unconstitutional is an academic question we need not answer.” Roeder, 300 Kan. at 943, 336 P.3d at 859.
Consistent with our holding in Roeder, we do not address whether sufficient evidence supported the risk of death aggravator found by the sentencing court in this case. Furthermore, Killings’ argument that the district court erred in considering a nonstatutory factor in imposing die hard 50 life sentence is rendered moot based on our decision to vacate his hard 50 life sentence and remand tire case for 'resentencing.
Lifetime Postrelease Supervision
Finally, Killings contends that the district court erred in imposing lifetime postrelease supervision as part of his life sentence for his off-grid, premeditated first-degree murder conviction.
This court has previously decided this issue in Killings’ favor, stating that “ ‘[a]n inmate who has received an off-grid indeterminate life sentence can leave prison only if the [Kansas Prisoner Review] Board grants the inmate parole. Therefore, a sentencing court has no authority to order a term of [lifetime] postrelease supervision in conjunction with an off-grid indeterminate life sentence/” State v. Summers, 293 Kan. 819, 832, 272 P.3d 1 (2012) (quoting State v. Cash, 293 Kan. 326, Syl. ¶ 2, 263 P.3d 786 [2011]); see State v. Harsh, 293 Kan. 585, 590, 265 P.3d 1161 (2011) (parole is separate and distinct from the sentence; if defendant with hard 25 life sentence ever leaves prison, it will be because parole was granted).
Based on the above caselaw, the district court erred in imposing lifetime postrelease supervision. At resentencing, if Killings receives an indeterminate life sentence for his premeditated first-degree murder conviction, the district court should impose lifetime parole in conjunction with the indeterminate life sentence.
Killings’ conviction is affirmed, sentence vacated, and case remanded with directions.
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Green, J.:
This case concerns the calculation of workers compensation benefits for a permanent total disability when there has been an offset for retirement benefits under K.S.A. 44-501(h). Willie McIntosh appeals the decision of the Workers Compensation Board (Board) which not only reduced his weekly workers compensation amount by his applicable weekly retirement benefits but also reduced the $125,000 statutory cap on an employer’s liability for permanent total disability benefits under K.S.A. 44-510f(a)(l). This award effectively limited the number of weeks that McIntosh could receive workers compensation.
On appeal, McIntosh argues that K.S.A. 44-501(h) reduces the weeldy compensation rate by the amount of the offset for retirement benefits but does not limit the number of weeks payable for permanent total disability compensation. We agree. In construing K.S.A. 44-510c(a)(l) and K.S.A. 44-510f(a)(l), we determine that the legislature intended for permanent total disability payments to continue until the employee no longer suffers from such disability or until the $125,000 statutory cap on an employer’s liability is reached, whichever event occurs first. There is no indication that the legislature intended for the workers compensation offset under K.S.A. 44-501(h) to reduce the $125,000 cap on an employer’s liability for permanent total disability payments, thereby limiting the number of weeks that permanent total disability benefits are payable. Because the Board’s decision terminated McIntosh’s workers compensation benefits after 341 weeks and before the $125,000 státutory cap on the employer’s liability would have been met, we hold that the award was improper. Accordingly, we reverse and remand with directions that the payments ordered by the Board shall continue until McIntosh’s permanent total disability has ended or until the $125,000 maximum allowable payment for permanent total disability has been exhausted, whichever event occurs first.
On June 25, 1999, McIntosh sustained injuries while working as a security officer for Sedgwick County (County). McIntosh filed a workers compensation claim, and in January 2003 the administrative law judge (ALJ) found McIntosh to be permanently and totally disabled. Regarding the weekly workers compensation benefits payable to McIntosh, the parties agreed that the County was entitled to an offset of $39.26 per week under K.S.A. 44-501(h) for McIntosh’s retirement benefits from the Kansas Public Employees’ Retirement System (KPERS). The parties, however, could not agree on whether the County was entitled to an offset under K.S.A. 44-501(h) for McIntosh’s social security retirement benefits. The ALJ determined that the County was not entitled to an offset for McIntosh’s social security retirement benefits.
The Board affirmed the ALJ’s award and determined that the County was not entitled to a social security retirement credit or offset under K.S.A. 44-501(h). On appeal, this court reversed the Board’s decision and remanded the case, determining that K.S.A. 44-501(h) applied to McIntosh’s case and that the County was entitled to an offset for the social security retirement benefits in McIntosh v. Sedgwick County, 32 Kan. App. 2d 889, 91 P.3d 545, rev. denied 278 Kan. 846 (2004).
On remand, tire Board calculated the offset under K.S.A. 44-501(h) for McIntosh’s retirement benefits and also set forth the total amount of workers compensation benefits payable to McIntosh. In doing so, the Board indicated that a permanent total disability pays a maximum benefit of $125,000 at a weekly compensation rate based on the calculation under K.S.A. 44-510c. The Board noted that unlike compensation for a permanent partial disability, a permanent total disability award has no limitation on the number of disability weeks; instead, there is only the statutory limit of $125,000.
The Board then calculated the number of weeks that benefits would be payable to McIntosh without the offset for retirement benefits by taking the $125,000 maximum benefit amount and dividing by McIntosh’s weekly compensation rate of $366. This cál culation equaled 341.53 weeks. The Board stated that “[t]o calculate the retirement reduction in any other manner would effectively dilute or ehminate the offset.” The Board then reduced McIntosh’s weekly workers compensation benefits for those 341.53 weeks by the applicable social security retirement benefits amount. In addition, the Board reduced McIntosh’s weekly workers compensation benefits payable from August 1999 forward by McIntosh’s KPERS weekly retirement benefits of $39.26. The award entered by the Board resulted in a total benefits amount of $30,847.74 paid to McIntosh over the course of 341.53 weeks. The $30,847.74 award represented the $125,000 maximum benefit amount under K.S.A. 44-510f(a)(l) minus the reductions for McIntosh’s social security and KPERS retirement benefits over the course of 341.53 weeks.
Although this award was approved by the majority of the Board members deciding McIntosh’s claim, one Board member dissented. The dissenting Board member stated:
“The undersigned Board Member respectfully dissents from the method the majority employs to calculate this permanent total disability award. I agree with the majority that the retirement offset provisions in K.S.A. 1998 Supp. 44-501(h) are intended to and do reduce the amount of the weekly disability compensation. I disagree, however, that this weekly reduction likewise reduces the total dollar amount of permanent total disability compensation that is payable. Permanent total disability compensation, unlike permanent partial disability compensation, is subject only to a dollar limit, not to any time limit or fixed number of weeks. [See K.S.A. 44-510c and K.S.A. 44-510e.] ‘The payment of compensation for permanent total disability shall continue for the duration of such disability . . . .’ [K.S.A. 44-510c(a)(l).] As such, the weekly compensation in this case should continue, albeit at the reduced weekly rate, until the $125,000 maximum has been paid. [K.S.A. 44-510f(a)(l).] I would not, as the majority has done, reduce both the amount of the weekly compensation and the $125,000 maximum by the amount of the retirement offset. Permanent total disability compensation is intended to be wage replacement. The purpose of the retirement offset is to avoid duplication of those benefits. [McIntosh, 32 Kan. App. 2d 889.] This purpose is served by reducing the amount of the weekly benefit. It is not served by also reducing the number of weeks those weekly benefits are payable.”
McIntosh now appeals from the Board’s decision. McIntosh contends that the Board’s decision goes beyond the mandate of K.S.A. 44-501(h) to eliminate wage-loss duplication and also entirely elim mates his workers compensation benefits after the 341st week. McIntosh argues that although K.S.A. 44-501(h) operates to reduce his weekly workers compensation payment by the retirement benefits offset, it does not limit the number of weeks for permanent total disability compensation.
Our review of the Board’s decision requires interpretation of various statutory provisions under the Workers Compensation Act (Act), K.S.A. 44-501 et seq. The interpretation of statutory provisions in the Act presents a question of law. Under the doctrine of operative construction, the Board’s interpretation of the workers compensation laws is entitled to judicial deference. If there is a rational basis for the Board’s interpretation, it should be upheld upon judicial review. However, the Board’s determination on questions of law is not conclusive and, though persuasive, is not binding on the court. The party challenging the Board’s interpretation bears the burden of proving its invalidity. Foos v. Terminix, 277 Kan. 687, 692-93, 89 P.3d 546 (2004). “Although we give deference to the Board’s interpretation of the governing statute, erroneous interpretation or application of tire statute justifies appellate relief. [Citation omitted.]” Evans v. Frakes Trucking, 31 Kan. App. 2d 211, 214, 64 P.3d 440 (2002).
In interpreting the statutory provisions relevant to this case, we bear in mind that the fundamental rule of statutory construction to which all other rules are subordinate is that the legislature’s intent governs when such intent can be ascertained. Foos, 277 Kan. at 695. If a statute is plain and unambiguous, the court must give effect to the legislature’s intent as expressed rather than determine what the law should or should not be. Pierren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88, 106 P.3d 492 (2005). “Where the face of the statute leaves its construction uncertain, the court may look to die 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.” Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000).
Moreover, when several statutes must be construed together, an appellate court must apply the following principles:
“In construing statutes and determining legislative intent, several provisions of an act or acts, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. 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. The court must give effect to the legislature’s intent even though words, phrases, or clauses at some place in the statute must be omitted or inserted.” State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003).
Turning now to the statutes involved in this case, we first look at K.S.A. 44-501(h), which deals directly with the workers compensation offset for an employee’s retirement benefits. K.S.A. 44-501(h) states:
“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 die employee’s percentage of functional impairment.”
The purpose of the workers compensation benefit offset under K.S.A. 44-501(h) is to prevent wage-loss duplication. See Wishon v. Cossman, 268 Kan. 99, 107, 991 P.2d 415 (1999); Dickens v. Pizza Co., 266 Kan. 1066, 1070-71, 974 P.2d 601 (1999). Recognizing that an employee experiences only one wage loss and should receive only one wage-loss benefit, the author of 9 Larson’s Workers’ Compensation Law § 157.01 (2000), discusses the impropriety of duplicate wage-loss benefits as follows:
“Wage-loss legislation is designed to restore to the worker a portion, such as one-half to two-thirds, of wages lost due to the three major causes of wage-loss: physical disability, economic unemployment, and old age. The crucial operative fact is that of wage loss; the cause of the wage loss merely dictates the category of legislation applicable. Now if a worker undergoes a period of wage loss due to all three conditions, it does not follow that he or she should receive three sets of benefits simultaneously and thereby recover more than his or her actual wage. The worker is experiencing only one wage loss and, in any logical system, should receive only one wage-loss benefit. This conclusion is inevitable, once it is recognized that workers’ compensation, unemployment compensation, nonoccupational sickness and disability insurance, and old age and survivors’ insurance are all parts of a system based upon a common principle. If this is denied, then all coordination becomes impossible and social legislation becomes a grab-bag of assorted unrelated benefits.”
K.S.A. 44-501(h) is designed to prevent against wage-loss duplication by reducing the amount of workers compensation benefit payments by the amount of the employee’s weekly equivalent amount of retirement benefits. Retirement benefits, other than federal social security retirement benefits, which can be attributed to the employee’s contributions do not reduce the workers compensation payments. See K.S.A. 44-501(h).
In this appeal, McIntosh does not contest that the County is entitled to an offset under K.S.A. 44-501(h). Rather, McIntosh challenges the Board’s decision to limit the number of weeks for permanent total disability payments before the $125,000 statutory cap under K.S.A. 44-510f(a)(l) has been reached. McIntosh maintains that the Board’s decision cutting off his workers compensation benefits after 341 weeks forfeits over $94,000 in potential permanent total disability benefits.
As McIntosh points out in his brief, there is no time limitation on workers compensation payments for a permanent total disability. Rather, K.S.A. 44-510c(a)(l) expressly states that “[t]he payment of compensation for permanent total disability shall continue for the duration of such disability.” The clear intention of the legislature, as expressed in the plain language of K.S.A. 44-510c(a)(l), is to allow the payment of workers compensation benefits for a permanent total disability to continue for as long as the employee remains permanently and totally disabled. The Act, however, limits the maximum allowable benefit for permanent total disability to $125,000 in K.S.A. 44-510f, which we will discuss later.
Previously, the Act imposed time limitations on workers compensation payments for a permanent total disability. See K.S.A. 44-510(3)(a) (Corrick 1964) (payment for permanent total disability shall not extend over period exceeding 8 years from date of injury); K.S.A. 44-510c(a) (Weeks 1973) (payment for permanent total dis ability shall not extend over period exceeding 415 weeks from date of injuiy). Nevertheless, in 1974, K.S.A. 44-510c was amended to include the current language which requires that the payment of compensation for permanent total disability continue for the length of the disability. See L. 1974, ch. 203, sec. 12. “ "When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment. [Citation omitted.]’ ” State v. Gordon, 275 Kan. 393, 405, 66 P.3d 903 (2003). The 1974 amendment further evidences the legislature’s intent to not impose a time limitation on permanent total disability payments.
The legislature, however, has imposed a cap of $125,000 on an employer’s liability for permanent total disability compensation. See K.S.A. 44-510f(a)(l). The relevant portion of K.S.A. 44-510Í states:
“(a) Notwithstanding any provision of the workers compensation act to the contrary, tire 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.”
When construing K.S.A. 44-510c(a)(l) and K.S.A. 44-510f(a)(l) together, we find it readily apparent that the legislature intended that workers compensation payments for a permanent total disability continue until the employee no longer is permanently and totally disabled or until the $125,000 maximum limit has been paid, whichever event occurs first. Here, the Board’s decision did not provide for McIntosh’s permanent total disability payments to continue for the length of his disability or until the $125,000 cap had been reached under K.S.A. 44-510f(a)(l). Rather, the Board terminated McIntosh’s permanent total disability benefits after 341 weeks when only $30,847.74 would have been paid. Such a decision does not conform to the requirements of K.S.A. 44-510c(a)(l) and K.S.A. 44-510f(a)(l).
The Board reasoned that calculating a reduction for retirement benefits in any other way would effectively dilute or eliminate the workers compensation offset under K.S.A. 44-501(h). Neverthe less, the plain language of K.S.A. 44-501(h) provides for a reduction in “any compensation benefit payments” received by the employee under the Act. There is no language limiting the employer s statutoiy liability cap under K.S.A. 44-510f(a)(l) by the amount of the 44-501(h) offset. As pointed out by the dissenting Board member, the purpose of workers compensation for permanent total disability is wage replacement. Moreover, as discussed previously, the purpose of the workers compensation benefit offset under K.S.A. 44-501(h) is to prevent against wage-loss duplication. See McIntosh, 32 Kan. App. 2d 889, Syl. ¶ 1. Both of these purposes can be accomplished by reducing the weekly workers compensation payments for the duration of the disability.
A duplication of wage-loss benefits does not occur when workers compensation payments continue for the duration of a permanent total disability or until the $125,000 cap on an employer s liability is met under K.S.A. 44-510f(a)(l). Rather, under such .circumstances, weekly workers compensation payments have the appropriate reduction for social security and other retirement benefits. Therefore, an employee would never be receiving more in weekly benefits than the employee’s workers compensation payments would have been without the offset under K.S.A. 44-501(h).
Nevertheless, the County maintains that the Board’s application of the workers compensation offset under K.S.A. 44-501(h) is the only way to carry out the legislature’s intent and prevent duplication of benefits. The County contends that the Board’s method applies the offset for retirement benefits equally to all injured workers, whether permanently and totally disabled or permanently and partially disabled, by taking the same percentage reduction for all workers.
In addressing the County’s argument, we point out that employees suffering a permanent total disability are treated differently under the Act than employees who have a permanent partial disability. Workers compensation benefits for a permanent partial scheduled disability are paid for a set number of weeks as determined under K.S.A. 44-510d. Workers compensation benefits for a permanent partial disability are paid based on the formula set forth in K.S.A. 44-510e and such payments shall not exceed 415 weeks. See K.S.A. 44-510e(a). An employer s liability for permanent partial disability benefits is subject to a $100,000 cap and to a $50,000 cap when only functional impairment is awarded. K.S.A. 44-5l0f(a)(3) and (4). Thus, workers compensation benefits for a permanent partial disability are limited to a certain period of time subject to the statutory cap on an employer s liability. On the other hand, workers compensation payments for a permanent total disability continue for the length of the disability or until the $125,000 cap has been met, whichever event occurs first.
The workers compensation offset under K.S.A. 44-501(h) eliminates wage-loss duplication by reducing the weekly payments for both permanent total and permanent partial disabilities. In the case of a permanent partial disability, the end result of the offset is to reduce the total award as there is a time limitation for permanent partial disability payments. The payments continue until the maximum number of weeks have been reached. On the other hand, because there is no time limitation on payments for permanent total disability, the end result of the offset under K.S.A. 44-501(h) is to delay the amount of time it takes to reach the $125,000 statutory cap on an employer’s liability.
The legislature clearly intended to impose different limitations on workers compensation benefits for permanent total and permanent partial disabilities. For a permanent total disability, the legislature intended for workers compensation payments to continue for the duration of the disability subject only to the $125,000 cap on an employer’s liability. Stated another way, as long as the employee continues to suffer permanent total disability, the employee should continue to receive workers compensation payments until $125,000 has been paid. Because the award entered by the Board failed to provide for McIntosh’s workers compensation payments to continue for the length of his permanent total disability or until the $125,000 cap on the employer’s liability for a permanent total disability has been reached, the Board’s decision did not follow the intent of the legislature.
In summary, we determine that the workers compensation offset under K.S.A. 44-501(h) operates to reduce the weekly workers compensation payments for a permanent total disability. Never tlieless, workers compensation payments for a permanent total disability continue until such disability has ended or until the $125,000 cap on an employer’s liability for a permanent total disability has been reached, whichever event occurs first.
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Granted.
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Gardner J.:
This case asks whether a hospital employees refusal to get a flu shot constitutes job-related misconduct precluding her receipt of unemployment benefits. The Employment Security Board of Review and the district court found it does. We agree.
Procedural Background
McPherson Hospital (the hospital) hired Debra K. Rhoden-baugh in 2010 as an emergency department clerk. She worked at a nursing desk located in the center of the emergency department. As part of her employment, Rhodenbaugh interacted with doctors, nurses, and patients.
After Rhodenbaugh was hired, the hospital amended its policy regarding influenza vaccinations. In an effort to limit exposure and transmission of the influenza virus (flu) between the patients and the staff, the hospital changed its policy to require all employees to receive a flu vaccination. The policy expressly allowed for medical and religious exemptions but no others. On September 3,2013, the hospital sent an email notifying all employees of the policy change and uploaded the policy in a shared folder.
Following that notification, the hospital offered free flu vaccinations to its employees. Approximately 95% of the employees complied. Jill Wenger, Vice President of Human Resources, mailed certified letters on October 23, 2013, to Rhodenbaugh and other employees who did not comply, informing them they needed to get the mandatory flu vaccinations or return a declination form signed by their physician or clergy. Rhodenbaugh never went to the post office to pick up that letter, but she admitted her awareness of it and of the requirement that she receive a flu vaccination.
On October 29, 2013, Rhodenbaugh provided the hospital with a note from her doctor which said: “Patient prefers to defer flu shot at this time.” Wenger told Rhodenbaugh her note failed to reflect any objection on medical or religious grounds so it was insufficient to fall within the hospital’s exceptions to the flu shot requirement.
Rhodenbaugh then sent a letter to the hospital explaining her decision to decline a flu vaccination, which stated:
• her aunt had passed away within 2 weeks after having received a flu vaccine;
• her grandson had had a “severe reaction to his immunizations” and suffers from seizures and permanent brain damage;
• she had experienced reactions to medications, including over the counter drugs, “beyond what one would expect”;
• she believed the flu vaccine contains Thimerosal which “has been shown to potentially increase the risk of Alzheimer’s Disease, brain damage and nervous system injury”; and
• her grandmother had passed away from Alzheimer’s, and two of her aunts suffer from the disease.
The hospital found these reasons insufficient to meet the stated exceptions to its policy. Due to Rhodenbaughs failure to receive the mandatory flu vaccination or complete the declination form, she was terminated on October 31, 2013. Her termination is not at issue on this appeal.
Rhodenbaugh applied for and initially received unemployment benefits through the Kansas Department of Labor, but the hospital appealed. After a telephone hearing, the referee upheld the examiners determination, finding Rhodenbaugh was qualified for benefits because she had been discharged but not for misconduct connected with her work. The hospital appealed that decision to the Kansas Employment Security Board of Review (the Board), which reversed.
Rhodenbaugh then filed a petition for review of agency action in the McPherson County District Court. The hospital moved to dismiss tire petition, arguing McPherson was an improper venue. The hospital claimed venue was proper in Shawnee County because the Board was located there and the Board’s order had been entered there. The district court denied the hospitals motion to dismiss but ordered the case transferred to tire Shawnee County District Court.
Rhodenbaugh then filed a brief in support of her petition for judicial review in the Shawnee'County District Court. After reviewing the record, the district court found:
“The vaccination policy was fairly and consistently enforced. This is not a contested point, but requisite for a proper review of the interpretation and application of the law. The policy applied to all employees and reasonable exceptions were made for those objecting on medical or religious grounds. Employees were given ample notice and a reasonable amount of time to comply with the policy. There is nothing in the record to indicate the policy was unfair or inconsistently enforced.”
Accordingly, the district court denied Rhodenbaugh s petition for judicial review. Rhodenbaugh timely appeals from that order.
Improper Venue
We first address Rhodenbaughs argument that venue was proper in the McPherson County District Court and her case was improperly transferred to the Shawnee County District Court.
Rhodenbaugh s appeal for judicial review of the agency’s action is governed by the Kansas Judicial Review Act (KJRA), K.S.A- 77-601 et seq. See Ryser v. State, 295 Kan. 452, 458, 284 P.3d 337 (2012). This Act specifically addresses venue in providing:
“Except as otherwise provided by K.S.A. 8-259, 31-144, 44-556, 72-5430a and 74-2426, and amendments thereto, venue is in the county in which the order or agency action is entered or is effective or the rule and regulation is promulgated.” K.S.A. 77-609(b).
Because the statute states the proper venue for this proceeding, the question presents a matter of statutory interpretation which is a question of law subject to unlimited review. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010).
Neither party asserts that any statutory exception listed in this venue statute applies. We agree. See K.S.A. 2015 Supp. 8-259 (drivers’ licenses); K.S.A. 2015 Supp. 31-144 (fire safety and prevention); K.S.A. 2015 Supp.44-556 (workers compensation); K.S.A. 2015 Supp. 72-5430a (teachers’ contracts); and K.S.A. 2015 Supp. 74-2426 (tax appeals).
Thus venue is governed by the general provision that venue is proper “in the county in which the order or agency action is entered or is effective or the rule and regulation is promulgated.” K.S.A. 77-609(b). The McPherson County District Court found this language to be ambiguous. It found Rhodenbaugh had filed the action in good faith but ruled that the case should be transferred to Shawnee County District Court rather than dismissed, as the hospital had requested.
Because K.S.A. 77-609(b) provides that venue is proper in the county in which the order is entered, and the Boards order was entered in Shawnee County, Shawnee County was a proper venue. But Rhodenbaugh contends that venue was also proper in McPherson County because the agency action or order “is effective” in that county where she resides and would receive and use her unemployment benefits.
We find support for Rhodenbaugh’s interpretation in the legislative history of this venue statute. The statute originally provided that venue was generally proper “in the county in which the order is entered or the rule and regulation is promulgated.” L. 1984, ch. 338, Sec. 9. That narrow provision was interpreted to be pro-agency and favored venue in the Shawnee County District Court. Professor David Ryan, a member of the committee that advised the Kansas Legislature during its adoption of the KJRA, see Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 398, 204 P.3d 562 (2009), analyzed venue under the KJRA shortly after its enactment:
“Venue was one of the tougher issues in the course of the legislative promulgation of the KJRA. The Judicial Council recommended several alternative venues, but it may be noted a number of state agencies voiced their concern about traveling outside Topeka. In the resulting controversy over whether to grant a broad or narrow venue for administrative appeals, the proposed Act went for many weeks without any venue provision at all between the House and Senate versions, until it was finally resolved. In its final format, venue is quite simple and pro-agency: being the ‘county in which the order is entered or the rule or regulation is promulgated.’ This will far more often than not be the Shawnee County District Court in Topeka.” Ryan, The New Kansas Administrative Procedure and Judicial Review Acts, 54 J.K.B.A. 53, 65 (1985).
But the following year, tire legislature broadened the venue statute by adding the language at issue in this case, which we have italicized below:
“[Vjenue is in the county in which the order or agency action is entered or is ejfec-tive or the rale and regulation is promulgated.” L. 1986, ch. 318, Sec 4.
This change requires this court to determine the legislative meaning and intent of the amendment.
“The legislative histoiy surrounding the 1986 amendment is not very enlightening. The Senate Judiciary Committee minutes accompanying the proposed change do not state the purpose behind the amendment other than that the amendments to the Act were merely ‘technical’ in nature.” Karns v. Kansas Bd. of Agriculture, 22 Kan. App. 2d 739, 742, 923 P.2d 78 (1996).
Under this and other statutes, venue may be proper in more than one county. See Alliance Life Ins. Co. v. Ulysses Volunteer Firemans Relief Assn., 215 Kan. 937, 942, 529 P.2d 171 (1974). “When construing a statute, a court should give words in common usage their natural and ordinary meaning.” Bank IV Wichita v. Plein, 250 Kan. 701, 705-06, 830 P.2d 29 (1992). “When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment.” Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990). It is a cardinal rule of statutory construction that a provision should not be interpreted as to render some language mere surplusage. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106 (2013).
Given the plain language of the statute, coupled with its legislative history, we cannot construe the KJRA venue statute to require the Shawnee County District Court to review all petitions from the Kansas Employment Security Board of Review and other administrative agencies located in Topeka. See Karns, 22 Kan. App. 2d at 742. Interpreting venue to he only in the county where an administrative order is issued and not in any county where the effects of the order are felt, is overly narrow and would have the practical effect of placing venue in Shawnee County for all administrative appeals. If such were the case, then the legislature could have explicitly placed venue in the Shawnee County District Court in enacting the KJRA. Instead, the legislature amended the statute in 1986 to avoid that possible interpretation. We decline to read “effective” as mere surplusage. Accordingly, we find the 1986 amendment was intended to expand venue to include counties in which agency orders are effective.
We next determine whether the Boards order was effective in McPherson County, as Rhodenbaugh contends. Although the Boards order was entered in Shawnee County, Rhodenbaugh contends the agency action is effective in McPherson County because she fives there and, if successful, would have received payment of unemployment benefits there, apparently through the mail.
In Mildfelt v. State, 11 Kan. App. 2d 617, 731 P.2d 884 (1987), a petition for judicial review of SRS’s denial of food stamps and medical assistance was brought in Shawnee County. The pre-1986 venue statute governed tire case, but we found under the facts of the case that the same result would have occurred under the post-1986 version of the statute. 11 Kan. App. 2d at 618. We found venue was proper only in Sedgwick County because Mildfelt had applied for food stamps and medical assistance there, her original application had been denied there, and the effects of the decision were “wholly within” Sedgwick County. 11 Kan. App. 2d at 620. We found the decision “effective” in Sedgwick County because the food stamps would have been issued and used in Sedgwick County and the medical assistance, had it been granted, would have been rendered in Sedgwick County. 11 Kan. App. 2d at 620.
The facts of this case are not as compelling as those in Mildfelt. Here, venue was clearly proper in Shawnee County because the Board’s order was entered there, and the Board’s decision, if favorable to the plaintiff, would be effective in McPherson County only because Rhodenbaugh lived there and would receive her unemployment benefits there. We find these facts sufficient, although minimally so, to show that the Board’s order or action was effective in McPherson County.
That conclusion, although supported by scant facts, is fortified by a rule of law. Where venue for a KJRA proceeding is proper in more than one county, the district court should give due consideration to the plaintiff’s right to choose the place of the action. See K.S.A. 60-609(a) (allowing the trial court to change venue upon the motion of a party and “a finding that a transfer would better serve the convenience of the parties and witnesses and the interests of justice”); Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 97, 106 P.3d 492 (2005) (holding “the Code of Civil Procedure may be used by the district court to supplement the KJRA if the provision is a logical necessity that is not addressed within the KJRA”); cf. Gonzales, Administrator v. Atchison, T. & S. F. Rly. Co., 189 Kan. 689, 691-93, 371 P.2d 193 (1962) (finding “‘unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed’” under the principle of forum non conveniens). The district courts ruling in this case does not reflect that it gave any consideration to the plaintiff’s right to choose among two proper venues.
We find that tire facts of this case, the legislative history of this statute, and proper deference to tire plaintiff’s choice of forum compel the conclusion that venue was proper in McPherson County, as well as in Shawnee County. Accordingly, the district court should not have transferred venue without having given weight to the plaintiff’s choice of venue and without having found that a transfer would serve the convenience of the parties and witnesses and tire interests of justice.
Harmless error
The party benefiting from an erroneous change of venue has the burden to come forward with a showing of harmlessness. Kansas City Mall Assocs. v. Unified Gov’t of Wyandotte County/KCK, 294 Kan. 1, 8, 272 P.3d 600 (2012). Here, McPherson Hospital has undertaken that burden and has met it.
We are persuaded by the Supreme Court s approach in Alliance Life Ins., 215 Kan. 937. There, the Supreme Court held the district court erred by failing to transfer the matter to the county of proper venue but nonetheless addressed the merits, reasoning that a remand would in all probability be futile:
“Had this case been decided after a trial, requiring the weighing of evidence to resolve disputed facts, the holding just announced might well receive a reversal with directions to transfer the case to Grant county for a new trial. The decision, however, was made as a matter of law, based on stipulations as to facts, testimony, and—perhaps most important—the unavailability of testimony. As will be developed, it appears that a remand and transfer to Grant county would in all probability bring us the case again on a record identical with this one, at least insofar as the merits are concerned. Although a party’s right to litigate in a proper forum is a valuable one, the law does not require pointless redetermination of legal issues where the results maybe readily foreseen. [Citation omitted.] For this reason, and because the partes urge us to do so, we proceed to the merits.” 215 Kan. at 942.
Our case, although not decided on stipulated facts, presents solely a question of law on established facts. The parties submitted the matter to the Shawnee County District Court on the briefs, based on tire existing case record. Neither party requested a hearing, oral argument, or a trial. And the remaining issue on appeal presents solely a question of law—whether Rhodenbaughs refusal to receive the flu vaccine constitutes statutory misconduct as provided in K.S.A. 2015 Supp. 44-706(b). If we remand this case to the McPherson County District Court, the only difference would be which judge would review the agency action, but Rhodenbaugh has not alleged that the Shawnee County judge who decided her petition for judicial review was biased or otherwise unfair. Neither party contends that the outcome of this matter-may have been different had it been heard in McPherson County. Accordingly, to remand for a transfer of venue would be futile, as the parties agree. Therefore, we address this appeal on its merits.
Job-related Misconduct
This action is brought as a judicial review of an agency action under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. The KJRA defines the scope of judicial review of state agency actions. K.S.A. 2015 Supp. 77-603(a); Ryser, 295 Kan. at 458. Parties in an agency action before the district court under the KJRA may appeal the district court’s decision to the appellate courts, just as parties do in other civil cases. K.S.A. 77-623. Appellate courts exercise the same statutorily limited review of the agency’s action as does the district court, as though Rhodenbaugh’s petition had been made directly to the appellate court. Powell, 290 Kan. at 567. On appeal, the burden of proving tire invalidity of the agency action rests on the party asserting such invalidity. K.S.A. 2015 Supp. 77-621(a)(1); Milano's, Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 500, 293 P.3d 707 (2013). Here, that party is Rhodenbaugh.
The KJRA outlines eight scenarios under which relief may be granted. K.S.A. 2015 Supp. 77-621(c). The sole basis alleged here is that the Board erroneously interpreted or applied the law. K.S.A. 2015 Supp. 77-621(c)(4). Rhodenbaugh argues the Board and the district court erroneously interpreted and applied the law pertaining to unemployment benefits, which are contained in K.S.A. 44-701 et seq., and that she is entitled to receive unemployment benefits under K.S.A. 2014 Supp. 44-706(b).
Individuals who are unemployed because they were discharged for misconduct connected with their work are ineligible for unemployment benefits. K.S.A. 2015 Supp. 44-706(b). The employer bears the burden of proving misconduct by a preponderance of the evidence. Farmland, Foods, Inc. v. Abendroth, 225 Kan. 742, 743-44, 594 P.2d 184 (1979) (relying on K.S.A. 1978 Supp. 44-706(b), which also provided an individual was disqualified for benefits if “ ‘he or she ha[d] been discharged for breach of a duty connected with his or her work reasonably owed an employer by an employee’”). Under this standard, the evidence must demonstrate “‘a fact is more probably true than not true.’ [Citation omitted.]” Gannon v. State, 298 Kan. 1107, 1124, 319 P.3d 1196 (2014).
Specifically, the relevant statute provides:
“An individual shall be disqualified for benefits:
“(b) If the individual has been discharged or suspended for misconduct connected with the individual’s work. . . .
(1) For the purposes of this subsection, ‘misconduct’ is defined as a violation of a duty or obligation reasonably owed tire employer as a condition of employment including, but not limited to, a violation of a company rule, including a safety rule, if: (A) The individual knew or should have known about the rule; (B) the rule was lawful and reasonably related to the job; and (C) the rule was fairly and consistently enforced.” K.S.A. 2015 Supp. 44-706.
Rhodenbaugh argues her refusal to receive the flu vaccine did not constitute statutory misconduct. She contends she owed no duty to the hospital because receiving a flu vaccination “cannot be a duty if there are exceptions to the rule.” She also argues that even if the hospital had a legal right to terminate her employment, it did not have the right to deny her unemployment benefits because her refusal to get a flu vaccination was for good reason and did not constitute statutory misconduct. She believes the Board conflated these two issues. We address these claims below in examining the statutory definition of “misconduct” in K.S.A. 2015 Supp. 44-706(b)(1).
Under the KJRA, we must determine whether an agency’s factual findings are supported by substantial evidence when considered in light of all evidence of record. See K.S.A. 2015 Supp. 77-621(c) (7), (d); Sierra Club v. Moser, 298 Kan. 22, 62-63, 310 P.3d 360 (2013). This analysis requires us to: (1) review evidence both supporting and detracting from an agency’s findings; (2) examine the presiding officer’s credibility determinations, if any; and (3) review the agency’s explanation as to why the evidence supports its findings. K.S.A. 2015 Supp. 77-621(d); Williams v. Petromark Drilling, 299 Kan. 792, 795, 326 P.3d 1057 (2014). Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Gannon, 298 Kan. at 1175. In reviewing the evidence, we do not reweigh the evidence or engage in de novo review. K.S.A. 2015 Supp. 77-621(d).
Hospital safety rule
We first examine whether the hospital’s policy change was a company rule, or more specifically here, a safety rule. See K.S.A. 2015 Supp. 44-706(b)(1).
The district court found: “It is uncontested that the newly implemented policy is a company rule, and a safety one at that.” On appeal, Rhodenbaugh does not dispute that the flu vaccination policy was a safety rule. Furthermore, at the telephone hearing, Dr. Samuel Claassen, a staff physician in internal medicine at McPherson Hospital, testified that the flu vaccine is 60 to 70 percent effective and it was reasonable for the hospital to require flu vaccinations to lessen the risk of exposing the staff and patients to the flu. He also testified that the benefits of receiving the flu vaccine outweighed the risks. Additionally, Wenger testified the mandatory flu vaccination policy was implemented to protect the health and safety of the patients and the hospital employees. Nothing in the record suggests that the newly implemented rule was something other than a company safety rule. Accordingly, the district court did not err in this finding.
Employees awareness of rule
We next ask whether Rhodenbaugh knew or should have known about the rule, as required by K.S.A. 2015 Supp. 44-706(b)(l)(A).
Rhodenbaugh received the email dated September 3, 2013, notifying the employees of the policy change, and the new policy was uploaded in the hospitals shared folder. She further testified she had access to the hospital’s shared drive. Rhodenbaugh also testified her supervisor had informed her the flu vaccination was mandatory and failure to receive one would result in termination. After she refused to receive a flu vaccination, she was notified via certified mail on October 23, 2013, that she still needed to get the mandatory flu vaccine or have a declination signed by a physician or clergy. Rhodenbaugh testified she was aware of that letter and its contents. Thus, Rhodenbaugh knew about the rule.
Lawfulness of rule and mies relation to job
We next ask whether the hospitals implementation of the flu vaccination policy was lawful and related to the job. See K.S.A. 2015 Supp. 44-706(b)(1)(B).
The district court found: “The rule is also lawful because there is nothing in Kansas or Federal law that prevents the Hospital from requiring vaccinations. It is a legal policy to implement, and provides for exceptions that are nearly identical to Kansas’ exceptions to vaccinations for schoolchildren. See K.S.A. 72-5209(b).” Rhodenbaugh does not challenge tins finding, and upon further research, nothing indicates this is an incorrect finding. Therefore, we find the subsection was satisfied—the policy change was lawful and reasonably related to the job.
Fair and consistent enforcement of rule
Lastly, we determine whether the challenged rule was fairly and consistently enforced, as is required under K.S.A. 2015 Supp. 44-706(b)(1)(C).
Rhodenbaugh argues: “[Tjaldng a flu shot cannot be a duty if there are exceptions to the rule and employees subject to the exception merely have to wear a mask.” At oral argument, Rhoden-baugh seemed to contend that because she was willing to wear a mask and had good reasons for not wanting a flu shot, die hospital should have granted her a de facto exception to the rule.
Rhodenbaugh fails to cite any authority for this claim, and her argument has no logical appeal. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013) (finding a point raised incidentally in a brief and not argued therein is deemed abandoned). Whether the hospital should have included a “catch-all” exception to its policy to include persons such as Rho-denbaugh is a policy matter best left to the employer. Cf. Simms v. Oklahoma ex. rel. Dept. of Mental Health, 165 F.3d 1321, 1330 (10th Cir.), cert. denied 528 U.S. 815 (1999) (Courts do not sit as “'super personnel departments]’” free to second-guess the business judgment of an employer). Nothing in the record indicates the hospital failed to fairly and consistently enforce its general rule requiring a flu shot or the stated exceptions to that rule. Accordingly, the hospital has shown that the requirements for statutory misconduct are met.
Conclusion
Having reviewed the facts of record, we find the hospital met its burden of proving by a preponderance of the evidence “misconduct” as defined by K.S.A. 2015 Supp. 44-706(b)(1) and that Rho-denbaugh has not met her burden of proving the invalidity of the agency action. Rhodenbaugh owed a duty to the hospital to follow tire safety rule by either receiving the flu vaccine or meeting the applicable exemptions. Her failure to comply with the rule met the statutory definition of job-related misconduct and thus disqualified her for unemployment benefits.
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Leben, J.:
Milo Jones, a Kansas prison inmate, obtained a money judgment in federal court against a former prison guard. Jones wasn’t able to collect any of his judgment, though, because he wasn’t able to locate the former guard or any of that guard’s assets.
So Jones has tried to collect the judgment against the Kansas Department of Corrections, the state agency that had employed the guard. Jones first tried to do that in federal court, but his claim against tire state agency was dismissed for lack of jurisdiction: The United States Court of Appeals for the Tenth Circuit held that the Eleventh Amendment to the United States Constitution prevented a federal court from entering a money judgment against the State for the past conduct of its employees. See Jones v. Courtney, 466 Fed. Appx. 696 (10th Cir. 2012) (unpublished opinion) (dismissing claim against the State for lack of jurisdiction); Jones v. Courtney, No. 04-3255-JWL-DJW, 2007 WL 2893587 (D. Kan. 2007) (unpublished opinion) (granting judgment in favor of Jones and against former prison guard). After the federal court dismissed his claim against tire State, Jones brought suit in the Kansas state court, again trying to collect his judgment against the Kansas Department of Corrections, a state agency.
The state district court also dismissed this claim for lack of jurisdiction, although it didn’t explain the basis for its decision. While an explanation would have been helpful, the question is a purely legal one, so we must review it independently anyway, without any required deference to the district court. See Frazier v. Goudschaal, 296 Kan. 730, 743, 295 P.3d 542 (2013). The State of Kansas argues on appeal here that the district court correctly dismissed Jones’ claim against it because the State has. sovereign immunity against his claim under the Eleventh Amendment. Specifically determining whether the State is immune also presents a solely legal question, see Cessna Aircraft Co. v. Metropolitan Topeka Airport Authority, 23 Kan. App. 2d 1038, 1045-46, 940 P.2d 84, rev. denied 262 Kan. 959 (1997), and if it is immune, a court does not have jurisdiction to address the claim. See Goldbarth v. Kansas State Board of Regents, 269 Kan. 881, 894, 9 P.3d 1251 (2000); Jones, 466 Fed. Appx. at 698-99.
Jones’ judgment against the prison guard came on a civil-rights claim under a federal statute, 42 U.S.C. § 1983 (2000). Neither the Kansas Department of Corrections nor the State of Kansas was a defendant in the federal lawsuit. In fact, they couldn’t have been because the Eleventh Amendment precludes suing a state in federal court for money that would be paid from the state treasury based on the past conduct of state officials. See Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Jones, 466 Fed. Appx. at 698-701.
Even so, Jones argues that he can now collect the federal-court judgment against the State in state court. He contends that the State isn’t immune because he brought his claim as one for mandamus, an action that compels an official to carry out a clearly defined duty. He also argues that the State has agreed in the Kansas Tort Claims Act to “indemnify its employees against damages ... caused by an act or omission of an employee while acting within the scope of his or her employment.” K.S.A. 75-6109. We disagree.
First, Jones isn’t trying to get a public official to carry out some general duty of his or her job—he’s trying to get the State to pay a money judgment obtained based on the past conduct of a state employee. That’s exactly the sort of liability the State has immunity from under the Eleventh Amendment. See Edelman, 415 U.S. at 663 (“[A] suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.”); Jones, 466 Fed. Appx. at 699. The State wasn’t a party to the federal lawsuit in which Jones obtained his judgment, and the federal court had no power to grant a judgment against the State on Jones’ claim. It stands to reason, then, that filing Jones’ federal-court judgment in a state court cannot magically transform it into a judgment payable by the State.
Second, the State has not waived its sovereign immunity under the Eleventh Amendment. Another provision of the Kansas Tort Claims Act—not cited by Jones—provides that “[n]othing ... in the Kansas tort claims act shall be construed as a waiver by the state of Kansas of immunity from suit under the 11th amendment to the constitution of the United States.” K.S.A. 75-6116(g). See Connelly v. Kansas Highway Patrol, 271 Kan. 944, 962, 26 P.3d 1246 (2001) (noting that the State has not waived its sovereign immunity from suits seeking monetary damages under 42 U.S.C. § 1983) (citing Beck v. Kansas Adult Authority, 241 Kan. 13, 21, 735 P.2d 222 [1987]).
Third, the Kansas Supreme Court has held that the State of Kansas has sovereign immunity from claims by individuals based on federal law even when the claims are brought in state court. Connelly, 271 Kan. at 961; Schall v. Wichita State University, 269 Kan. 456, 466, 7 P.3d 1144 (2000). Thus, even if Jones would have initially brought his claims in state court and attempted to include the State as a defendant, even a state court would not have had jurisdiction to enter a judgment on this claim against the State. While the State can waive immunity, Schall, 269 Kan. at 466, Jones’ waiver claim is based on K.S.A. 75-6109. As we’ve already noted, that provision of the Kansas Tort Claims Act doesn’t serve to waive Eleventh Amendment immunity. See K.S.A. 75-6116(g).
In sum, Jones has a valid federal judgment against the former prison guard. He was entitled to that judgment and had the right to collect it. What he does not have is a claim that can be presented in state court to have the State of Kansas pay that claim: The State has not waived its sovereign immunity.
We therefore affirm the district court’s judgment, which dismissed Jones’ claim for lack of subject-matter jurisdiction. | [
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Green, J.:
D.R. appeals the trial court’s decision terminating his parental rights in S.R. (date of birth 02/13/89) and R.R. (date of birth 04/26/90). The first issue raised by D.R. on appeal is whether the State exercised due diligence in obtaining service of process on D.R. The record on appeal indicates that there was never a finding, as required by K.S.A. 38-1582(b)(3), that due diligence had been exercised in obtaining service of process on D.R. In addition, the record indicates that the State received an address for D.R. but never attempted to serve him at that address. As a result, we determine that the due diligence requirement of K.S.A. 38-1582(c) has not been met. Moreover, we determine that the trial court abused its discretion in denying D.R.’s motion to continue the trial date. Although D.R. had actual notice of the proceedings, the record on appeal indicates that he did not have sufficient time to prepare his defense to the State’s petition. Accordingly, we reverse and remand.
This case commenced in April 2004 when the State filed a petition requesting termination of the parental rights of D.R. and D.A. in their natural children S.R. and R.R. The petition stated that S.R. and R.R. had been removed from D.R.’s home in October 2000 due to D.R.’s physical, abuse of R.R. S.R. and R.R. had been placed in the custody of their paternal grandparents, J.R. and C.R. The petition indicated that a reintegration plan was attempted but, in December 2001, the trial court determined that D.R. had substantially failed to comply with the plan. In May 2002, with D.R.’s and D.A.’s consent, J.R. and C.R. became the permanent guardians of S.R. and R.R. The petition asserted, however, that D.R. continued to harass both children through telephone contact. The petition indicated that J.R. and C.R. wished to formally adopt the children.
After being served with the petition and notice, D.A. agreed to relinquish her parental rights to R.R. and consented to S.R.’s adoption. A copy of the petition and notice was sent to the paternal grandparents. Certified mail, restricted delivery service was attempted on D.R. at a post office box in Las Vegas but was returned with the notation “BOX CLOSED NO ORD.” In addition, certified mail, restricted delivery service was attempted on D.R. at a street address in Las Vegas but was returned as “Unclaimed Refused.”
The State submitted to the trial court an affidavit from the assistant district attorney who stated that all reasonable and diligent efforts had been made to locate D.R. In the affidavit, the State indicated that child support records had been checked in Johnson County, that a copy of the notice and petition had been sent to D.R.’s last known address but had been returned as undeliverable, that an Internet search on www.anywho.comandwww.yahoo.com, had been conducted for both the Kansas City metropolitan area and Las Vegas, and that a phone call had been placed to the one match that turned up during tire internet search, but it was discovered that D.R. did not reside at that residence. The State further indicated that SRS had not provided any additional information.
After considering the State’s affidavit, the trial court ordered that D.R. be served with notice by publication. Notice of an August 11, 2004, hearing on the petition to terminate parental rights was published in The Olathe News on July 21, 2004, and July 28, 2004.
On August 5, 2004, six days before the scheduled hearing, D.R.’s appointed counsel moved to continue the trial date. According to D.R.’s counsel, he had spoken with D.R. several times over the past few weeks. D.R. had provided his counsel with a telephone number but had advised his counsel not to give the number to anyone else. In addition, D.R. did not disclose his residential address to his counsel. D.R. had previously expressed to the trial court that he wished to have new counsel. D.R.’s counsel alleged that he had contacted D.R. on August 4 and told him that the State had achieved publication service. At that time, D.R. told his counsel that he could not afford airline tickets and that he was unable to take time off of work without losing his job. D.R.’s counsel asserted that under the circumstances, he could not provide an adequate defense of D.R.’s interests. D.R.’s counsel requested that the trial be rescheduled for a future date.
At the August 11 trial date, the trial court addressed the motion for continuance filed by D.R.’s counsel. The trial court questioned whether service had been completed on D.R. At the hearing, the State produced a letter from D.R. which indicated that he had received actual notice of the trial. This letter has not been included in the record on appeal. Apparently, in this letter D.R. revealed an address in Mesquite, Nevada, and said that he would be in Kansas in October 2004. The State pointed out that this was the first communication in which D.R. had disclosed his address. The State pointed out that in a previous phone call, D.R. had not given his address. The State questioned the accuracy of the address and also whether D.R. would even sign a return receipt if the address was accurate.
During the hearing, D.R.’s counsel objected to the publication service. The trial court then questioned whether service was sufficient under the facts of the case. The trial court noted that there had not been personal service or restricted mail service on D.R. Both D.A.’s attorney and the guardian ad litem indicated that D.R. was playing games with the court and that he would be arrested for failure to pay child support if he came back into Kansas. Pointing out that diere must be due diligence before service by publication can be ordered, the State argued that it had satisfied due diligence in this case and that it had protected D.R.’s due process rights by the notice drat was provided.
In determining that the notice given to D.R. was sufficient in this case, the trial judge stated: “I think the notice that we’ve given is sufficient. He appears to submit to the jurisdiction by publication and actual notice. That the Court does at least have in rem jurisdiction over his status as parent of these two children, so we’ll proceed jurisdictionally.” The trial court pointed out that D.R. had known about the proceedings. The trial court denied the request for a continuance.
The trial court then conducted a trial on the State’s petition to terminate parental rights. The trial court heard testimony from both J.R. and C.R., as well as Carrie Massey, R.R.’s case manager with the Farm, Inc. In an August 12, 2004, letter decision, the trial court found clear and convincing evidence that D.R. was unfit and that his unfitness was unlikely to change in the foreseeable future. D.R.’s and D.A.’s parental rights were terminated in November 2004.
Service of Process
The first issue before this court is whether the State exercised due diligence in obtaining service of process upon D.R. This issue requires interpretation of various statutory provisions. “Interpretation of a statute is a question of law, and the appellate court’s review is unlimited. [Citation omitted.]” In re T.S., 276 Kan. 282, 287, 74 P.3d 1009 (2003).
K.S.A. 38-1582(c) allows service by publication upon the parent in a termination of parental rights proceeding when the parent cannot be located by the exercise of due diligence. K.S.A. 38-1582(c) states:
“In any case in which a parent of a child cannot be located by the exercise of due diligence, service shall be made upon the child’s nearest blood relative who can be located and upon the person with whom the child resides. Service by publication shall be ordered upon the parent.”
Before commencing the hearing on a motion to terminate parental rights, the trial court “shall determine that due diligence has been used in determining the identity of the interested parties and in accomphshing service of process.” K.S.A. 38-1582(b)(3). This statute requires the trial court to state specific facts showing reasonable diligence was exercised to locate the absent parent. Here, before the commencement of the termination of parental rights hearing, the trial court made no factual findings that due diligence had been used in locating D.R. and in accomphshing service of process.
The State concedes that it received a letter from D.R. and that the letter contained his address in Mesquite, Nevada. Although the State questions the accuracy of the address, the State never attempted to obtain service of D.R. at that address. See Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950) (Although the Court upheld notice by publication because it was impractical to give better nodce to some beneficiaries, it struck down the notice as a violation of due process when the names and addresses of other beneficiaries were known.); In re Woodard, 231 Kan. 544, Syl. ¶ 7, 646 P.2d 1105 (1982) (if petitioner in termination of parental rights action knows whereabouts of absent parent, service of summons must be obtained by one of the ways specified by statute, other than by publication, so that parent may receive actual notice of proceeding). After receiving D.R.’s address in Nevada, the State should have attempted to serve him by one of the methods outlined in K.S.A. 38-1534 instead of relying on the notice that was published in a Kansas newspaper to effect service of process.
In summary, publication service on a parent in a termination of parental rights case under K.S.A. 38-1582(c) is permitted only when the parent cannot be located by the exercise of due diligence. Here, the State had a letter from D.R. that contained his address in Mesquite, Nevada; however, the State never attempted to obtain service of D.R. at that address. When constructive service such as publication notice is used, there must be strict compliance with the requisite statutory procedures.
The trial court seems to rely heavily on the fact that D.R. received actual notice of the proceedings. In In re L. S., 14 Kan. App. 2d 261, 262, 788 P.2d 875 (1990), this court noted: “[Jurisdiction over the person of the defendant can be acquired only by issuance and service of process in the method prescribed by statute, or by voluntary appearance.’ [Citation omitted.]” Thus, Kansas law indicates that actual notice does not cure jurisdictional defects in the issuance and service of process. See In re H.C., 23 Kan. App. 2d 955, 958, 939 P.2d 937 (1997) (Personal jurisdiction over the defendant can be obtained only through compliance with the statutory procedure regarding issuance and service of process, or through voluntary appearance.); Wilson & Walker v. State, 230 Kan. 49, 630 P.2d 1102 (1988) (In a child termination case, oral notice of the severance hearing was inadequate to comply with one of the statutorily provided ways of effecting service of process.). Here, the State has failed to satisfy the due diligence requirement of K.S.A. 38-1582(c) before seeking publication notice on D.R.
Reasonable Time to Appear and to Defend
Assuming arguendo that service by publication was sufficient to acquire jurisdiction over D.R., due process requires a reasonable time for D.R. to appear and to defend. In this case, both the assistant district attorney and the trial court seemed to focus on the fact that D.R. had actual notice of the proceedings. In denying the motion for a continuance filed by D.R/s counsel, the trial court noted that the court appeared to have acquired jurisdiction over D.R. by publication and actual notice.
The only date of actual notice found in the record is contained in the motion for continuance which states that D.R. was informed by his counsel on August 4 that the State had achieved publication service. Although the motion for continuance stated that D.R/s counsel had spoken on the phone with D.R. several times over the past few weeks, we cannot assume that he had told D.R. of the specific hearing date. The only date that we know for sure on which D.R. received actual notice of the hearing was August 4. This was only 1 week before the termination hearing. When D.R. received notice on August 4 of the hearing, he told his counsel that he could not take time off from his job or afford airline tickets for the upcoming trial. The next day, D.R/s counsel moved for a continuance and later at trial objected to the service by publication.
In In re H. C., 23 Kan. App. 2d 955, this court reversed the order terminating parental rights due to die trial court’s failure to grant the mother a reasonable continuance where she had received actual notice of the hearing date approximately 1 week before trial. In that case, notice of the hearing had been sent to the mother in care of her attorney, and her attorney had informed her of the hearing date. The mother timely objected to service of process and also asked for a continuance, arguing that she was unable to secure witnesses and documents necessary for her defense. The mother testified that she could not retrieve psychiatric medical records due to the inadequate notice. Additionally, in her appeal brief, tire mother argued that she was unable to subpoena two former caseworkers who had been involved in her case.
On appeal, in addressing the issue regarding improper service of process, this court noted that the trial court retained personal jurisdiction over the mother because the original motion to terminate parental rights had been served in accordance with the statute. This court then addressed the question of whether the notice of hearing served on the mother s counsel comported with due process. This court noted that the mother had received actual notice of the hearing and therefore had been informed of the pendency of the action in accordance with due process. Nevertheless, this court stated that “[d]ue process also demands that interested parties be afforded an opportunity to present their objections, which includes a reasonable time to prepare a defense to the litigation.” 23 Kan. App. 2d at 961. Determining that a reasonable continuance would have given the mother adequate time to prepare her defense, this court found that the trial court abused its discretion in denying the mother s timely request for a continuance and reversed the order terminating parental rights. 23 Kan. App. 2d at 960-61.
Similar to the facts of In re H. C., the record in the instant case indicates that D.R. received actual notice of the termination of parental rights hearing 1 week before the trial date. Moreover, publication service was effected approximately 2 weeks before trial. D.R.’s attorney timely requested a continuance and objected to the service of process. D.R. was living out-of-state in Nevada at the time he received notice of the hearing. The record fails to indicate that D.R. had been given enough time to allow him an adequate opportunity to meet with his attorney and prepare his defense.
We determine that the time period of 1 week between the notice and the trial was insufficient for D.R., who was living in Nevada, to prepare his defense. See Robins v. Robert Lawrence Electronics Corporation, 84 N.Y.S.2d 99 (1948) (summons requiring out-of-state defendant to appear in 6 days denied defendant due process of law as it did not have adequate notice of proceeding and did not have adequate opportunity to present defense). In fact, D.R.’s counsel indicated that under the circumstances, he could not provide an adequate defense of D.R.’s interests. Here, in order to allow D.R. sufficient time to prepare his defense and present his objections, the trial court should have granted the continuance.
The trial court’s denial of tire motion for continuance effectively terminated D.R.’s parental rights without giving him a sufficient opportunity to present a defense. “A parent’s right in and to his or her children is of paramount importance and is entitled to due process protection under the Fourteenth Amendment.” In re M.L.K., 13 Kan. App. 2d 251, Syl. ¶ 1, 768 P.2d 316 (1989). Under the facts of this case, we find that the trial court abused its disci'etion in failing to grant the request for a continuance.
As previously stated, we have determined that the State failed to satisfy the due diligence requirement of K.S.A. 38-1582(c) to obtain jurisdiction over D.R. by publication. Even if the State had satisfied the due diligence requirement of K.S.A. 38-1582(c), we determine that the trial court erred when it failed to grant D.R. a reasonable continuance. As a result, we reverse and remand. If termination of parental rights proceedings are resumed, compliance with K.S.A. 38-1582 will be required.
In light of the above determination, it is unnecessary to address D.R.’s remaining argument that the trial court erroneously found clear and convincing evidence that D.R. was unfit and that D.R.’s condition was unlikely to change in the foreseeable future.
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Buser, J.-.
In November 2003, Michael J. Brown was convicted by a jury of involuntary manslaughter while operating a vehicle under the influence of alcohol (K.S.A. 2004 Supp. 21-3442) and driving under the influence of alcohol (K.S.A. 2004 Supp. 8-1567[a][2]). Brown appeals his convictions and sentences. We affirm in part, reverse in part, vacate the sentence, and remand for resentencing.
Factual and Procedural Background
On the evening of April 15,2003, Clay Stauffer was driving westbound on Highway 36 in Washington County when he noticed headlights approaching from the south on an intersecting road. Stauffer saw the car make a wide turn into the westbound lane of Highway 36 heading east. Stauffer attempted to brake and swerve around the car, but as he swerved to the left, the passenger side of his vehicle collided with the passenger side of the other vehicle. Stauffer was driving about 65 miles per hour when the “big collision” occurred and his car’s air bags deployed.
Following the collision, Stauffer spoke to the occupants of the other car. The driver of the vehicle was Michael Brown. Brown’s wife, Ruth Brown, and their son, Chase Brown, were passengers.
Washington County Sheriff Bill Overbeck, Deputy Lany Wenzl, and Deputy Scott Miller were dispatched to the scene. When Wenzl arrived he found Brown and his son standing beside their vehicle. Brown told the deputy he was not injured but his son had an injured leg and his wife, who remained in the car, was injured. Wenzl talked to Ruth, who told him her stomach hurt, and he observed a laceration on her chin. Wenzl provided emergency care for Ruth until medical personnel arrived.
Wenzel spoke to Brown about the collision. During this conversation, Wenzl noticed Brown’s eyes were bloodshot and he smelled of alcohol: Both Wenzl and Miller observed a bucket in the backseat of Brown’s car containing three unopened beer cans. Miller also seized an open beer can from the side of the road, 5 to 7 feet away from Brown’s vehicle.
Brown was transported by ambulance to the Washington County Hospital, along with his wife and son. Wenzl spoke with Brown again at the hospital. Brown told the deputy he was heading north on a gravel road and pulled onto Highway 36, where he was struck by a car he did not see. Brown admitted he had consumed three beers between 3 p.m. that afternoon and the time of the accident. At Wenzl’s request, Brown provided a blood sample to determine whether Brown’s blood alcohol level was in excess of the legal limit. A Kansas Bureau of Investigation laboratory test later revealed that Brown had a blood alcohol level of 0.10 grams of alcohol per 100 milliliters of blood.
Ruth was treated at Washington County Hospital by a family practice physician, Dr. David Hodgson, who conducted a series of clinical examinations, medical tests, and procedures. The following morning, Ruth’s condition began to deteriorate and she was airlifted to Bryan West Hospital in Lincoln, Nebraska. Following surgery by Dr. Ronald Jex that afternoon to repair a tear in her aorta, Ruth’s condition worsened and she died that evening.
Brown was charged with involuntary manslaughter while operating a vehicle under the influence of alcohol or drugs, driving under the influence of alcohol, transporting an open container of an alcoholic beverage, and a traffic infraction for improper turning. Following a jury trial, he was convicted of involuntary manslaughter while operating a motor vehicle while under the influence of alcohol and driving under the influence of alcohol. Brown was sentenced to a total of 162 months’ imprisonment. He filed a timely appeal.
Speedy Trial
On appeal, Brown argues the district court erred in denying his motion to dismiss for violation of his right to a speedy trial because while he was. in custody he was not brought to trial within 90 days of his arraignment, in violation of K.S.A. 22-3402(1)..
In particular, we are confronted with the question of how much delay is properly attributable -to Brown due to his motion for con tinuance of jury trial following arraignment. The question of whether there is violation of Brown’s statutory right to speedy trial is a matter of law over which an appellate court has unlimited review, especially if the facts are undisputed. State v. Davis, 277 Kan. 309, 330, 85 P.3d 1164 (2004).
The facts in this case are undisputed. Brown was in jail pending trial. He was arraigned on June 4, 2003. He pled not guilty, and a trial date was set for August 20, 2003. On July 30, 2003, Brown filed a motion for continuance of the jury trial. In support of his motion Brown claimed: “Counsel needs additional time to retain expert witness to testify on the defendant’s behalf.” Two days later, on August 1, 2003, the court heard and granted Brown’s motion and set a new trial date of October 27, 2003.
On October 27, 2003, the court notified defense counsel that the county attorney had fallen ill and the trial would be continued. On November 6, 2003, the court held a hearing to discuss rescheduling the trial for a second time. On November 7, 2003, a telephone conference call was held and a new trial date of November 20, 2003, was set by the court. On both November 6, 2003, and November 7,2003, the county attorney advised the court there were no speedy trial concerns.
On November 13, 2003, the defendant filed a motion to discharge for violation of the defendant’s speedy trial rights. The court denied the motion. The case proceeded to trial on November 20, 2003.
Under the speedy trial statute, K.S.A. 22-3402(1), a defendant held in custody solely by reason of a criminal charge must be brought to trial “within ninety (90) days after such person’s arraignment on the charge . . . unless the delay shall happen as a result of the application or fault of the defendant . . . .” (Emphasis added.)
A defendant waives his or her statutory right to a speedy trial by requesting or acquiescing in the granting of a continuance, and a defense counsel’s actions are attributable to the defendant in calculating speedy trial violations. State v. Bloom, 273 Kan. 291, 310, 44 P.3d 305 (2002); State v. Southard, 261 Kan. 744, 748, 933 P.2d 730 (1997).
The specific issue for our consideration is whether the delay after Brown’s motion to continue was granted is attributable to him. Although, as the authorities discussed below show, there is a further question whether the time between the filing of the motion to continue and the ruling is also attributable to Brown, that question was not presented by the parties and we need not reach it under the facts of this case.
Brown argues he should only be charged with the delay from the initial trial date (August 20, 2003) until the rescheduled trial date (October 27, 2003). Under this theory, Brown was incarcerated 101 days from the date of arraignment until commencement of jury trial in violation of his right to a speedy trial.
The State counters that Brown should be charged with the delay from the time his motion for continuance of jury trial was granted (August 1, 2003) until the rescheduled trial date (October 27, 2003). According to the State’s theory, Brown was incarcerated awaiting trial only 82 days from the date of arraignment until commencement of the jury trial in full compliance with his right to a speedy trial.
Our Supreme Court has addressed the speedy trial ramifications of delays attributed to a defendant’s application or fault in a variety of contexts. For example, in State v. Southard, 261 Kan. 744, the Supreme Court approved the trial court’s ruling in attributing all the time between arraignment and a motions hearing to the defendant because defense counsel requested a hearing date for potential motions. The Supreme Court noted that the clause in K.S.A. 22-3402(1) pertaining to delays caused by the application or fault of the defendant included a reasonable time for the parties to brief issues and the court to decide them “as part of the delay resulting from defendant’s filing a motion.” 261 Kan. at 749. Moreover, even if the defense never filed any motions during that interim, the time was chargeable to the defendant because the court was accommodating the defendant. 261 Kan. at 749-50.
In other cases, the Supreme Court has attributed delays to the parties based upon the date a motion for continuance was filed. See State v. Crane, 260 Kan. 208, 215-16, 918 P.2d 1256 (1996) (State filed a motion for continuance requesting independent men tal examination after defense expert’s report on defendant’s insanity defense; because tire State’s need for examination was caused by defendant’s insanity defense, time from the State’s motion for continuance until State’s expert’s report was filed was chargeable to defendant); City of Dodge City v. Downing, 257 Kan. 561, Syl. ¶ 2, 894 P.2d 206 (1995) (delay caused by filing of motion to suppress is charged to defendant; calculated from time motion was filed to the time the court has had a reasonable period to rule on the same); State v. Bafford, 255 Kan. 888, 892-93, 879 P.2d 613 (1994) (charging the State for time between the time defendant is found to be competent to stand trial and the date the defendant filed a motion for continuance).
Brown cites State v. Hines, 269 Kan 698, 7 P.3d 1237 (2000), in support of his position that the original trial date is controlling in counting time for speedy trial puiposes when a defendant applies for a continuance of trial. Hines is unavailing as precedent, however, because the language cited dealt with a different subsection, K.S.A. 22-3402(3)(c), which is now found in K.S.A. 2004 Supp. 22-3402(5)(c), and markedly different case facts.
The present case is factually distinguishable from Hines. As characterized by our Supreme Court, Hines was a case wherein “the defendant requested no continuances, and none of the delays in bringing him to trial was by reason of his application or fault.” 269 Kan. at 702. Unlike Hines, in the present case, the defendant specifically applied for and received an almost 3-month continuance of trial to retain an “expert witness to testify on the defendant’s behalf.”
Secondly, the case at bar is distinguishable from Hines because our Supreme Court did not inteipret the relevant subsection at issue, K.S.A. 22-3402(1), which specifically relates to trial delays attributable to “tire application or fault of the defendant.” To the contrary, our Supreme Court observed in Hines that a “substantial portion” of the delay in bringing Hines to trial “was based upon a court-ordered continuance under K.S.A. 22-3402(3).” 269 Kan. at 702. This delay of almost 3 months was occasioned because “[o]n the first trial date of January 25, 1999, the State was granted a continuance under K.S.A. 22-3402(3)(c) to obtain material evi dence.” 269 Kan. at 703. Significantly, Subsection (3) contained the following language that is not found in subsection (1): “Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than ninety (90) days, and the trial is commenced within one hundred twenty (120) days from the original trial date.” (Emphasis added.)
In summary, Hines addressed a factual and legal scenario wherein the State (not the defendant) was granted a continuance of trial based upon an entirely different statutory subsection (which contains language specifically referencing “the original trial date” not found in relevant subsection [ 1] of the speedy trial statute). Those are not the facts or the law relevant here, and the same could be said for State v. White, 275 Kan. 580, 67 P.3d 138 (2003) (“We hold that the 90-day period under K.S.A. 22-3402[ 3][c] is counted from the date of the trial setting, not from the date on which the motion was granted.” [Emphasis added.]).
Considering these authorities and facts of the present case, several reasons compel our conclusion that Brown’s right to a speedy trial was not violated. First, the statutory language in K.S.A. 22-3402(1) refers to delays attributable to “the application or fault” of the defendant, while K.S.A. 22-3402(3)(c) refers to continuances for specific reasons and specific time periods “from the original trial date.” Accordingly, there is a reasonable basis to conclude that the Kansas Legislature did not intend delays attributable to different causes to be counted in the same manner. Second, the Supreme Court has consistently ruled, in' a variety of factual contexts, that delay occasioned by a defendant’s application for a continuance under K.S.A. 22-3402(1) is attributable to the defendant and, therefore, excludable when counting time for statutory speedy trial purposes. Third, there is no explicit language in Hines, White, or the more recent case of State v. Davis, 277 Kan. 231, 233-34, 83 P.3d 182 (2004), that intimates, let alone instructs that our Supreme Court’s counting of days in interpreting subsection (3)(c) applies to subsection (1) of the speedy trial statute.
In overruling Brown’s motion for discharge, the trial court stated: “The initial continuance was at the behest of defendant. Because the continuance was sought by defendant it seems logical that the time chargeable to defendant should be from the time his motion was granted (August 1, 2003) to the continued trial date (October 27, 2003).” We agree.
Where a defendant claims that his or her statutory right to a speedy trial under K.S.A. 22-3402(1) has been violated, any delay caused by the judge granting the defendant’s motion to continue the jury trial is the result of the application of the defendant. Pursuant to K.S.A. 22-3402(1), tire delay from the date the judge granted Brown’s motion for continuance of trial until the rescheduled trial date was chargeable against the defendant for speedy trial purposes. As a result, we hold that Brown’s right to a speedy trial pursuant to K.S.A. 22-3402(1) was not violated.
Challenge for Cause
On appeal, Brown contends the district court committed reversible error when it overruled his objection and refused to strike a prospective juror for cause. Brown did not exercise a peremptory challenge to remove the prospective juror.
Our standard of review is well settled. A trial judge is in a better position than an appellate court to view the demeanor of prospective jurors as they are questioned. State v. Manning, 270 Kan. 674, 691, 19 P.3d 84 (2001). As a result, “[a] trial judge’s ruling on a challenge for cause will not be disturbed unless it is clearly erroneous or an abuse of discretion is shown. [Citation omitted.]” State v. Doyle, 272 Kan. 1157, 1166, 38 P.3d 650 (2002). Moreover, the failure to excuse a prospective juror for cause is not a ground for reversal unless the defendant was prejudiced as a result. State v. Heath, 264 Kan. 557, Syl. ¶ 17, 957 P.2d 449 (1998).
During voir dire, the trial court asked the jury panel members if they had any personal knowledge of the alleged crime or personal relationship with any of the parties. A potential juror, J.F., responded:
“[J.F.]: When the defendant was being held in the local jail the sheriff called me to counsel him because he wasn’t eating. And I spent some time with him in that situation.
“THE COURT: Okay. Was diere any discussion of the facts of the case?
“[J.F.]: Yes, sir.
“THE COURT: All right. Well, because of that personal relationship, I think that would preclude you from serving, unless you felt you could put that aside and serve.
“[J.F.]: I don’t think it would necessarily affect me. But I think the Court should be aware of that or the attorneys in charge be aware of that.
“THE COURT: What your responsibility would be would be to set that aside. That wouldn’t be proper discussion in the jury room.
“[J.F.]: No.
‘THE COURT: And you would decide it based solely on the evidence presented here today?
“[J.F.]: That would be my responsibility, yes.
“THE COURT: And also just going a little' bit further, the defendant has no responsibility, no obligation to testify. And if he chose not to testify the jury cannot, by reason of that, draw an inference that he had something to hide or that he should have gotten up and told the story. The burden is solely on the state to prove that. So again, if there was anything in that regard, it would be — you understand that would not be — ■
“[J.F.]: Certainly. I — whatever he shared with me there was between him and my role as pastor. It wouldn’t — my thinking anyway — affect my judgment of the evidence.
“THE COURT: All right. And you do — and just so it’s clear, you would be— and all the jurors would be — sitting in judgment in this case. In other words, they would have to make a judgment whether the defendant was guilty or not guilty.
“[J.F.]: Correct.”
In response to questioning by the prosecution J.F. indicated, “As I stated to Judge earlier, I was called to the Washington County Detention Center to do some counseling with the defendant for— when he was first arrested.”
Finally, during defense counsel’s questioning of the jury panel, J.F. was again questioned:
“MR. HICKMAN: I don’t see any hands. And [J.F.], the — if I understood you correctly, you had counseled Mr. Brown sometime shortly after this incident occurred. Is that correct?
“[J.F.]: Yes, sir.
“MR. HICKMAN: All right. And I believed you said — without going into any actual details — that you — he had discussed with you some facts of the case; is that correct?
“[J.F.]: From his perspective, yes.
“MR. HICKMAN: Okay. Now [J.F.], if it came about that Mr. Brown did not testify today or tomorrow or did not testify at the trial, would you be able to set aside, to ignore the information that you learned from him in your deliberations and in reaching a verdict here today?
“[J.F.]: I believe so. I think what he said in that situation was said under the duress of his own mourning, so — kind of a different situation than what we have here.
“MR. HICKMAN: Your Honor, I’m going to ask — in light of the fact that he’s received personal — has personal knowledge, that he has talked with the defendant prior to this, that he has knowledge of the facts of the case from the defendant himself, that I would ask tire Court to excuse [J.F.] for cause.
“THE COURT: This prospective juror has previously stated clearly that he can separate the two and could decide the case in an objective manner. The motion to disqualify is denied.”
After passing the remainder of the jury panel for cause, the State and Brown each exercised eight peremptory challenges. Neither party exercised a peremptory challenge to strike J.F. and, as a result, he served on the jury.
At trial, Brown asked the court to strike J.F. because “he has knowledge of the facts of the case from the defendant himself.” In his motion for a new trial, Brown simply argued the juror should have been dismissed for cause.
On appeal, Brown now argues the court erred in refusing to strike J.F. under two subsections of K.S.A. 22-3410. First, he argues the juror should have been dismissed under subsection (2)(g) which allows a juror to be challenged for cause if he or she was “a witness to the act or acts alleged to constitute the crime.” K.S.A. 22-3410(2)(g). Second, he argues J.F. should have been dismissed under subsection (2)(i) which allows a juror to be challenged for cause when “[h]is state of mind with reference to the case or any of the parties is such that the court determines there is doubt that he can act impartially and without prejudice to the substantial rights of any party.” K.S.A. 22-3410(2)(i).
K.S.A. 22-3410(2)(g) provides that a prospective juror may be challenged for cause if he was “a witness to the act or acts alleged to constitute the crime.” Brown candidly concedes “there is no indication [in] the record that [J.F.] was present at the scene on April 15, 2003 when Michael Brown was involved in the automobile accident that is central to this case.” Brown presents the novel argument, however, that “as a person who had information regard ing the substantive facts of the case, information that came directly from one of the parties in the case, [J.F.] could have been considered a witness.”
Brown’s argument runs afoul of the plain and ordinary meaning of the words in this statutory section. “When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed .... [Citation omitted.]” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). Moreover, in the interpretation of statutes, ordinary words are to be given their ordinary meaning. GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).
K.S.A. 22-3410(2)(g) only applies to eyewitnesses — witnesses to the act or acts that constitute the criminal conduct for which the defendant is on trial. In the present case there was no evidence that J.F. observed Brown at or about the time of tire collision. Given that the provisions of K.S.A. 22-3410(2)(g) were inapplicable to J.F.’s knowledge of certain facts relating to Brown, the trial court did not abuse its discretion in failing to dismiss J.F. pursuant to this subsection.
Brown further contends the trial court erred in not striking J.F. from the jury panel pursuant to K.S.A. 22-3410(2)(i), which allows a juror to be challenged for cause when “[h]is state of mind with reference to the case or any of the parties is such that the court determines there is doubt that he can act impartially and without prejudice to the substantial rights of any party.” See State v. Doyle, 272 Kan. 1157, 1166, 38 P.3d 650 (2002). In particular, Brown “simply asserts that, despite [J.F.j’s protestations to the contraiy, his state of mind was indelibly affected by his jailhouse conversation with Mr. Brown so as to create a real doubt that [J.F.] could act impartially and without prejudice to Mr. Brown’s substantial rights.”
Brown’s speculative claim is without any factual basis and directly contradicted by the record testimony wherein J.F. repeatedly assured the trial court that he understood it would be improper to consider the pretrial conversation he had with Brown, and that it would be his responsibility to only consider the evidence presented in court. As a result, there was a solid factual basis for the trial court’s finding that J.F. “has previously stated clearly that he can separate the two and could decide the case in an objective manner.”
There are no facts in the record to support a conclusion that J.F. exhibited any partiality or prejudice which disqualified him from jury service. Moreover, J.F.’s sworn testimony was to the contrary. The trial court did not abuse its discretion in failing to dismiss J.F. pursuant to K.S.A. 22-3410(2)(i).
Brown next alleges the trial court erred in not conducting its voir dire examination of J.F. outside the presence of the jury. Brown’s counsel, however, did not object to the voir dire conducted by the trial court or suggest that in camera questioning of J.F. was necessary.
A party may not 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. Flynn, 274 Kan. 473, 502, 55 P.3d 324 (2002). The trial court never had an opportunity to consider the validity of this argument and, therefore, potentially correct any errors. Moreover, as a general rule, issues not raised before the trial court may not be raised on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). Finally, Brown has provided only scant, nonspecific case law precedent to support this claim of error. For all these reasons this claim is without merit.
We note, sua sponte, that Brown did not challenge J.F. for cause during voir dire pursuant to K.S.A. 22-3410(2)(h), or raise the applicability of this particular subsection on appeal. This subsection allows a juror to be challenged for cause when “[h]e occupies a fiduciary relationship to the defendant or a person alleged to have been injured by the crime or the person on whose complaint the prosecution was instituted.” K.S.A. 22-3410(2)(h). No relevant case law has been found which defines a fiduciary relationship as contemplated by K.S.A. 22-3410(2)(h). Kansas appellate courts have discussed tire meaning of a “fiduciary relationship” in a variety of contexts, however, resulting in the term being defined by the Kansas Judicial Council as “any relationship of blood, business, friendship or association in which one of the parties places special trust and confidence in the other.” PIK Civ. 3d 125.01.
As noted earlier, we do not generally consider matters for which no specific contemporaneous objection is made at trial. Although Brown objected in a general fashion to J.F.’s service on the jury, “a contemporaneous objection must be made and it should be specific enough that the trial judge can rule intelligently upon the objection . . . .” City of Overland Park v. Cunningham, 253 Kan. 765, 772, 861 P.2d 1316 (1993).
Brown’s failure to state this specific ground for challenging J.F. at the trial level precludes our review because, as a result of this failure, neither counsel nor the trial court questioned J.F. to determine whether his pretrial counseling of Brown established a fiduciary relationship at the time of the encounter and, if so, whether J.F. considered that relationship to exist at the time of trial. Finally, an issue not briefed by the appellant is deemed waived or abandoned. State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004). For all of these reasons this particular issue is not properly before us for consideration.
The failure to excuse a juror for cause is not a ground for reversal unless, as a result, the defendant was prejudiced. State v. Heath, 264 Kan. 557, Syl. ¶ 17, 957 P.2d 449 (1998). Although we have found no abuse of discretion in the trial court’s ruling, we address Brown’s claim that this ruling resulted in prejudice.
Brown speculates: “It is entirely possible in this case that Mr. Brown, who testified at trial, might have wanted to call [J.F.] as a witness to corroborate his own trial testimony.” There is nothing in the record to support this conjecture. If true, Brown’s counsel was obliged to object upon that specific basis during the voir dire of J.F. City of Overland Park v. Cunningham, 253 Kan. 765, 772, 861 P.2d 1316 (1993).
Brown next argues, for the first time on appeal, that the trial court’s refusal to strike J.F. from tire jury panel violated Brown’s constitutional right to remain silent. Brown theorizes that “[i]f he asserted his right to refuse to testify, the other jurors would naturally wonder: Mr. Brown talked about the facts of the case to [J.F.] in jail; why won’t he testify at trial?” Brown provides no legal or factual basis to support this allegation of prejudice. As a result, we find it to be without merit.
Finally, in the context of Brown’s claims of prejudice, we note he did not use one of his eight peremptory challenges to remove J.F. from the jury panel. This factual scenario has been considered before by our Supreme Court.
In State v. Mayberry, 248 Kan. 369, 807 P.2d 86 (1991), our Supreme Court reviewed a case where four prospective jurors were unsuccessfully challenged for cause and actually served on the jury. These individuals were challenged because they had information that the defendant had previously been convicted of murder. The court found the prospective jurors “clearly expressed their ability to disregard outside information. In addition, any error committed by the trial court in failing to discharge the challenged jurors could easily have been cured by Mayberry’s use of peremptory challenges.” 248 Kan. at 382.
In State v. Dixon, 248 Kan. 776, 811 P.2d 1153 (1991), our Supreme Court found the trial court’s refusal to strike a juror for cause “questionable” and observed:
“The record does not indicate why the defendant failed to utilize a peremptory challenge as suggested by the trial court to strike Mrs. Moore from tire panel. Dixon makes no argument that use of a peremptory challenge on Mrs. Moore would have forced him to accept other objectionable jurors. [Citation omitted.] Under tírese circumstances, we find no reversible error in the trial court’s ruling.” 248 Kan. at 790-91.
See State v. Verge, 272 Kan. 501, 508-11, 34 P.3d 449 (2001).
Brown attempts to distinguish this case precedent as being factually dissimilar to the present case. We disagree. In Mayberry, Dixon, and the present case, the defendants’ motions to challenge for cause prospective jurors were overruled, the defendants failed to peremptorily challenge the prospective jurors and, as a result, they served as jurors.
For the first time on appeal, Brown asserts “the use of a peremptory strike to remove [J.F.] would have forced him to accept other objectionable jurors.” Although the record is devoid of defense counsel’s rationale for exercising peremptory challenges at trial, in his brief Brown identifies five prospective jurors who were peremptorily challenged by Brown’s counsel. In his brief, Brown cites to answers given by these five individuals during voir dire wherein they “to some extent, expressed dieir belief that they could be impartial, but they also expressed.some form of bias.”
Assuming arguendo that Brown had valid reasons to peremptorily challenge these five individuals, Brown was permitted to exercise eight peremptory challenges. Brown candidly admits that the three remaining peremptorily-challenged prospective jurors “were not individually questioned during voir dire and made no statements.” As a result, Brown has failed to make a credible case that the objectionable nature of all eight prospective jurors compelled his counsel not to peremptorily challenge J.F. By not exercising a peremptory challenge against J.F. and not providing a record as to the rationale why he was compelled to exercise the eight peremptory challenges available to him, Brown has failed to make a sufficient case for prejudice which would require reversal of his convictions.
Finally, Brown’s claim of prejudice is compromised by the fact that he had actual first-hand knowledge of the content of the pretrial conversation between him and J.F. Unlike the typical situation where defense counsel can only assess a prospective juror’s fairness and impartiality based upon answers to voir dire questions, in the present case Brown participated in the conversation with J.F. and, as a result, should have been fully informed as to what he said, what J.F. said, and whether that encounter would favorably or adversely affect Brown’s defense. Given tírese special circumstances, Brown’s decision to not peremptorily challenge J.F. implies that Brown did not consider J.F.’s service on the jury to be prejudicial to his defense.
While “[i]t would have been safer!’ for the trial court to excuse J.F. from jury service on this particular case, given Brown’s claims and the record before us, we are unable to find an abuse of discretion by the trial court or prejudice to Brown’s defense. See Dixon, 248 Kan. at 790.
Lesser Included Offense Instruction
Brown was charged with involuntary manslaughter while driving under the influence of alcohol and drugs under two alternative theories: his blood alcohol level was .08 or more, or he was under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle, in violation of K.S.A. 2004 Supp. 21-3442. Brown was also charged with driving under the influence under two alternative theories: his blood alcohol level was .08 or more (K.S.A. 2004 Supp. 8-1567[a][2]), or he was under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle, K.S.A. 2004 Supp. 8-1567(a)(3).
At trial, the jury was instructed regarding the alternative theories of involuntary manslaughter while driving under the influence but only instructed regarding driving under the influence with a blood alcohol level of .08 or more. Brown was convicted under both alternative theories of involuntary manslaughter while driving under the influence of alcohol and convicted of driving under the influence of alcohol.
On appeal, Brown argues the trial court erred in failing to instruct the jury on driving under the influence of alcohol as a lesser included offense of involuntary manslaughter while driving under the influence of alcohol. At trial, Brown did not request a lesser included offense instruction.
Brown’s failure to request this lesser included offense instruction dictates our standard of review:
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous. The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict.” State v. Boone, 277 Kan. 208, Syl. ¶ 8, 83 P.3d 195 (2004).
K.S.A. 2004 Supp. 21-3107(2)(b) defines a lesser included crime as “a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.” In order to resolve this issue, it is necessary to determine if all the elements of driving under the influence of alcohol are identical to some of the elements of involuntaiy manslaughter while driving under the influence of alcohol.
K.S.A. 2004 Supp. 8-1567(a) provides: “No person shall operate or attempt to operate any vehicle within this state while: (2) 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.”
With regard to the driving under the influence of alcohol charge, the jury was instructed in Instruction No. 13 that four claims or elements must be proven:
“1. That the defendant drove or attempted to drive a vehicle;
“2. That the defendant, while driving or attempting to drive, had an alcohol concentration in his blood or breath of .08 or more as measured within two hours of the time of driving or attempting to drive the vehicle;
“3. That the alcohol concentration in the defendant’s blood or breath was a result of alcohol consumed before or while driving or attempting to drive a vehicle; and,
“4. That this act occurred on or about the 15th day of April, 2003, in Washington County, Kansas.”
K.S.A. 2004 Supp. 21-3442 defines involuntary manslaughter while driving under the influence as “the unintentional killing of a human being committed in the commission of, or attempt to commit, or flight from an act described in K.S.A. 8-1567 and amendments thereto.”
In the present case, the jury was instructed.in Instruction No. 9 that four claims or elements must be proven by the State in order to convict Brown of involuntary manslaughter while driving under the influence of alcohol:
“To establish this charge, each of the following claims must be proved:
“1. That the defendant unintentionally killed Ruth Brown;
“2. That it was done in the commission of or while attempting to commit the act of operating or attempting to operate a vehicle while having an alcohol concentration in his blood of .08 or more as measured within two hours of the time of operating or attempting to operate the vehicle;
“3. That the alcohol concentration in the defendant’s blood or breath was a result of alcohol consumed before or while driving or attempting to drive a vehicle; and,
“4. That this act occurred on or about the 15th day of April, 2003, in Washington County, Kansas.”
Alternatively, the juiy was instructed in Instruction No. 10 that claims (1), (3), and (4) above must be proven, in addition to the claim that tire unintentional killing of Ruth Brown “was done in the commission of or while attempting to commit the act of operating or attempting to operate a vehicle while under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle.”
As is readily apparent, all four elements of the offense of driving under the influence of alcohol as set forth in Instruction No. 13 are identical to some of the elements of involuntary manslaughter while driving under the influence of alcohol as set forth in Instruction No. 9. As a result, we hold that pursuant to K.S.A. 2004 Supp. 21-3107(2)(b), driving under the influence of alcohol as provided in K.S.A. 2004 Supp. 8-1567(a)(2) is a lesser included offense of involuntary manslaughter while driving under the influence of alcohol because all of the elements of K.S.A. 2004 Supp. 8-1567(a)(2) are identical to some of the elements of K.S.A. 2004 Supp. 21-3442.
The State acknowledges that driving under the influence of alcohol is a lesser included offense of involuntary manslaughter while driving under the influence of alcohol; however, it argues there is no real possibility the jury would have returned a different verdict absent the instructional error. To resolve this issue, the erroneous instructions must be compared to the instructions the jury would have received had it been correctly instructed and determine if there was a real possibility the jury’s verdict was affected by tire error. State v. Winters, 276 Kan. 34, 39, 72 P.3d 564 (2003).
The trial court’s instructions to the jury indicated the involuntary manslaughter charges were charged in the alternative and constituted one crime. With regard to all crimes charged, the trial court instructed:
“Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged.”
This instruction was a verbatim recitation of PIK Crim. 3d 68.07.
The jury should have been advised of the lesser included offense, instructed that it could find the defendant guilty of the charged offense, or the lesser included offense, or not guilty, and then instructed: “When there is a reasonable doubt as to which of two or more offenses defendant is guilty, [defendant] may be convicted of the lesser offense only.” PIK Crim. 3d 68.09.
A similar situation arose in State v. Winters, where the trial court instructed the jury to consider both a severity level 7 aggravated battery and a severity level 4 aggravated battery. The court failed to instruct the jury that tire severity level 7 aggravated battery was a lesser included offense of the severity level 4 aggravated battery. The defendant did not object to these instructions or the failure to give a lesser included offense instruction. The Winters trial court, like the trial court in this case, gave the multiple counts verdict instruction.
The Winters court found the instructions to be error, although not clear error. 276 Kan. at 41. The court reasoned:
“The jury was instructed to consider the crimes separately but in no particular order. We find no basis to conclude that discussing one of the crimes before the other would change the verdict in this case. The juiy was instructed to consider the crimes separately and distinctly. Consequently, the verdict on one charge would not affect the verdict on tire other charge.” 276 Kan. at 40-41.
Brown speculates that “[t]he very real possibility that the jury could have found Mr. Brown guilty of DUI but not guilty of involuntary manslaughter is evidenced by the fact that the court chose to instruct the jury on the proximate cause of Ruth Brown’s death.” In fact, the court chose to instruct the jury regarding the issue of the proximate cause of Ruth Brown’s death because defense counsel requested this instruction. Regardless of the absence of a lesser included offense instruction, the jury was instructed that each charge was to be considered separately, uninfluenced by the jury’s decision as to other charges.
As in Winters, the jury in this case considered each charge separately and found Brown guilty of both involuntary manslaughter while under the influence of alcohol and driving under the influence of alcohol. We find no basis to conclude that the failure to give a lesser included offense instruction had any effect on any of the verdicts. Although the jury should have received the lesser included offense instruction, we hold this error was not clear error requiring reversal.
Multiplicitous Convictions
Brown contends the charges of involuntary manslaughter while driving under the influence of alcohol and driving under the influence of alcohol are multiplicitous under K.S.A. 2004 Supp. 21-3107(2)(b). As a result, Brown contends his involuntary manslaughter conviction should be reversed and the sentence vacated.
The State concedes these charges are multiplicitous. The State argues, however, that only the driving under the influence of alcohol conviction should be reversed and that sentence vacated.
Brown failed to raise this issue before the trial court. Notwithstanding Brown’s failure, a claim of multiplicity may be raised for the first time on appeal when necessary to serve the ends of justice and to prevent a denial of fundamental rights. State v. Groves, 278 Kan. 302, 303-04, 95 P.3d 95 (2004). Whether charges are multiplicitous is a question of law, and an appellate court’s review is unlimited. State v. Kessler, 276 Kan. 202, 204, 73 P.3d 761 (2003). We consider this issue because the facts are undisputed, the question of law is clear, and Brown’s fundamental constitutional and statutory rights are implicated.
“Multiplicity is the charging of two or more counts in a complaint where only a single wrongful act is involved. [Citation omitted.]” State v. Stevens, 278 Kan. 441, 446, 101 P.3d 1190 (2004). “The test to determine whether the charges in a complaint or information are multiplicitous is whether each offense requires proof of an element not necessary to prove the other offense. If so, the charges stemming from a single act are not multiplicitous.” 278 Kan. at 447.
As determined earlier, K.S.A. 2004 Supp. 21-3107(2)(b), driving under the influence of alcohol, is a lesser included offense of involuntary manslaughter while driving under the influence of alcohol because all of the elements of K.S.A. 2004 Supp. 8-1567(a)(2) are identical to some of the elements of K.S.A. 2004 Supp. 21-3442. Similarly, to prove the offense of involuntary manslaughter while under the influence of alcohol requires proof of eveiy element of driving while under the influence of alcohol. As a result, these two charges are multiplicitous.
In cases of multiplicitous charges resulting in convictions, our Supreme Court has determined a defendant should be sentenced only on the more severe offense. Winters, 276 Kan. at 43; State v. Turbeville, 235 Kan. 993, 995, 686 P.2d 138 (1984); State v. Garnes, 229 Kan. 368, 372-74, 624 P.2d 448 (1981). Having determined that the charges are multiplicitous, we reverse Brown’s conviction of driving under the influence of alcohol and vacate the sentence.
Sufficiency of Evidence
Brown contends there was insufficient evidence to convict him of involuntaiy manslaughter while driving under the influence of alcohol because the State failed to prove Brown’s driving under the influence of alcohol was the proximate cause of Ruth Brown’s death. Brown asserts Ruth died from a tear in her aorta because of a lack of proper treatment by Dr. Hodgson at Washington County Hospital.
Our standard of review is well known:
“When a defendant challenges the sufficiency of evidence, this court’s standard of review is whether, after review of all of the evidence viewed in the light most favorable to the State, the appellate court is convinced that a rational jury could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]” State v. Mays, 277 Kan. 359, 377, 85 P.3d 1208 (2004).
Involuntary manslaughter while driving under the influence of alcohol or drugs is defined as “the unintentional killing of a human being committed in the commission of, or attempt to commit, or flight from an act described in K.S.A. 8-1567 [driving under the influence of alcohol or drugs] and amendments thereto.” K.S.A. 2004 Supp. 21-3442. There was substantial evidence that Brown was driving the vehicle when the accident occurred and that his blood test revealed a blood alcohol level in excess of the legal limit.
On appeal, Brown concedes that “there was evidence that Ruth Brown was injured as a result of the automobile accident.” Brown contends, however, that “[i]f prompt and correct treatment of Ruth Brown would have prevented her death, . . . then the state has failed to prove that the actions of Mr. Brown were the proximate cause of Ruth Brown’s death.”
Without addressing the legal propriety of such a defense in this case, Brown’s argument is unavailing because a review of the record convinces us there was no competent evidence that Ruth received negligent medical care or that if Ruth had received faster or better treatment she would have survived.
Ruth Brown was treated at Washington County Hospital by a local physician, Dr. David Hodgson. He testified Ruth was conscious and responded to his questions about her injuries in the emergency room. She told him she was uncomfortable on her back and her upper abdomen hurt. Ruth smelled strongly of alcohol and admitted to drinking about six beers over a period of a couple hours.
Attempting to diagnose the cause of Ruth’s abdominal pain, numerous x-rays were taken of her spine, chest, and abdominal region. Throughout the process Ruth was uncooperative, resisted examinations, and frustrated medical treatment. Dr. Hodgson examined Ruth and her x-rays and found no evidence of external or internal bleeding, fractures, dislocations, or heart or lung trauma. He admitted Ruth to the hospital for continued observation and care.
At 5:45 a.m. the following morning, nurses advised Dr. Hodgson that Ruth had been awake, was fairly coherent, but was experiencing some discomfort. At 7 a.m., Dr. Hodgson conducted a physical examination of Ruth which revealed no internal bleeding, although he noted Ruth was sleepy. Dr. Hodgson reviewed all the x-rays again without discovering anything of medical significance.
Dr. Hodgson checked on Ruth at 8 a.m. and she appeared sleepy but stable. By 9 a.m., Ruth was no longer moving or responding verbally. Dr. Hodgson and a nurse practitioner reexamined Ruth, took more x-rays, and decided there had been enough change in her neurological status to transfer her to a major trauma center. Ruth was airlifted from the Washington County Hospital around 11 a.m. and arrived at Bryan West Hospital in Lincoln, Nebraska, about 45 minutes later.
Dr. Ronald Jex, a cardiothoracic surgeon, performed a transesophageal echocardiogram to assess Ruth’s heart and blood vessels. Ruth was acidotic, meaning her blood chemistry was abnormal because of poor blood flow to parts of her body for at least 4-6 hours. The evaluations supported a diagnosis of an aortic injury. Dr. Jex determined that Ruth’s prognosis was poor and even with surgery she might not survive.
Ruth was taken to surgery about 4:00 or 4:30 p.m. Doctors repaired a tear to her aorta and restored normal blood flow. During the procedure Ruth went into cardiac arrest but was revived. Unfortunately, Ruth’s condition continued to deteriorate until she died at approximately 9 p.m. on April 16, 2003.
At trial, Dr. Jex testified “without a doubt” that Ruth’s injuries were consistent with a high-impact accident. In his opinion, the ultimate cause of death was ischemia and resulting heart failure. He stated the injury took time to develop to the point of cutting off blood flow to the organs. This type of injury is not recognizable until the body starts showing symptoms, and it takes time for the symptoms to manifest. Dr. Jex testified Ruth’s condition was rare and that 90 percent of people who receive aortic injuries from high-impact accidents die at the scene.
At trial, neither Dr. Hodgson or Dr. Jex testified regarding any negligent medical treatment by Dr. Hodgson or that, as Brown alleges, “prompt and correct treatment of Ruth Brown would have prevented her death.” Significantly, in his case in chief, Brown also failed to present any expert testimony in support of this defense.
We note that at sentencing the trial judge provided his first-hand assessment of Brown’s defense and the sufficiency of evidence of Brown’s guilt:
“From a legal standpoint, as I mentioned before, there was overwhelming evidence of guilt. There was nothing — the treating physicians, in my view, gave excellent care, far above the minimum requirement. Dr. Hodgson followed this case closely and was personally in attendance much of the time and this was an unusual circumstance. Often in a trauma of this degree the victim patient would have died at the scene and all reasonable care and diagnostic tools were used.”
Brown’s defense that Dr. Hodgson was negligent and his failure to diagnose the injury caused Brown’s wife’s death from an oth erwise treatable injury was presented to the jury. At the request of the defense, the jury was instructed on proximate cause. Brown’s counsel argued his theory in closing argument. After considering the testimony of Dr. Hodgson and Dr. Jex, the jury found Brown’s act of driving under the influence of alcohol caused his wife’s death. There was no factual basis for this defense in the record, and we are convinced after review of all of the evidence, viewed in the light most favorable to the State, that a rational jury could have found the defendant guilty beyond a reasonable doubt.
Sentencing
Brown contends the trial court erred in applying the enhanced criminal history scoring provisions of K.S.A. 2002 Supp. 21-4711(c)(2) and sentencing him to 162 months in prison upon his conviction for involuntary manslaughter while driving under the influence of alcohol. Brown’s sentence was lengthened as a result of having two prior driving under the influence of alcohol convictions which, pursuant to the trial court’s understanding of K.S.A. 2002 Supp. 21-4711(c)(2), counted as person felonies for purposes of calculating Brown’s criminal history.
Resolution of this issue requires interpretation of the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., which is a question of law; therefore, this court’s review is unlimited. See State v. Davis, 275 Kan. 107, 124, 61 P.3d 701 (2003).
At the outset, the State objects to consideration of this issue for the first time on appeal. The State claims Brown failed to object to his enhanced criminal history category of B and, consequently, may not complain on appeal of an illegal sentence based upon that score. Our Supreme Court has established precedent for granting appellate review of criminal history errors in certain instances despite defense counsel’s stipulation or failure to make a proper objection. See State v. Vandervort, 276 Kan. 164, 176-77, 72 P.3d 925 (2003).
In the present case Brown was sentenced on January 9, 2004. The Kansas Supreme Court filed its dispositive opinion in State v. Manbeck, 277 Kan. 224, 83 P.3d 190 (2004), on January 30, 2004. We consider Brown’s claim of error because the question of law is clear, the facts are undisputed, and our Supreme Court has recognized the authority of appellate courts to review the issue of an illegal sentence for the first time on appeal.
K.S.A. 2002 Supp. 21-4711(c)(2), the law in effect at the time of Brown’s offense, applied enhanced scoring to individuals convicted of involuntary manslaughter while driving under the influence of both alcohol and drugs. “Criminal statutes and penalties in effect at the time of a criminal offense are controlling. [Citation omitted.]” State v. Denney, 278 Kan. 643, 646, 101 P.3d 1257 (2004). Brown argues that K.S.A. 2002 Supp. 21-4711(c)(2) was improperly applied by the trial court because he was convicted of involuntary manslaughter while driving only under the influence of alcohol, not a combination of alcohol and drugs. This statute has since been amended. See L. 2004, ch. 30, sec. 1.
Brown cites to Manbeck, for support. In Manbeck, the Kansas Supreme Court held the special sentencing provision of K.S.A. 2002 Supp. 21-4711(c)(2) only applies to convictions for involuntary manslaughter while driving under the influence of both alcohol and drugs. 277 Kan. at 226-29. The State concurs that Manbeck’s interpretation of K.S.A. 2002 Supp. 21-4711(c)(2) is applicable to the present case. We agree.
Given the statutory language of K.S.A. 2002 Supp. 21-4711(c)(2), as interpreted by the Supreme Court in the Manbeck decision, we hold that Brown’s two prior driving under the influence of alcohol convictions were improperly scored as two person felonies which resulted in an illegal sentence for involuntary manslaughter while driving under the influence of alcohol. As a result, that sentence is vacated and we remand for resentencing.
Brown’s conviction of involuntary manslaughter while driving under the influence of alcohol is affirmed. The sentence is vacated and the case remanded for resentencing. Brown’s conviction of driving under the influence of alcohol is reversed and the sentence vacated. | [
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Standridge, J.:
Pete D. Vasquez appeals the district court’s decision to summarily deny his motion to correct an illegal sentence. Specifically, Vasquez argues the district court erred by over-classifying his prior pre-Kansas Sentencing Guidelines Act (KSGA) burglary and robbery convictions as person felonies for criminal history purposes, which resulted in an illegal sentence. Vasquez claims he is entitled to relief under Descamps v. United States, 570 U.S. _, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), as applied by our state in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015) (Dickey II).
The State argues this court should not reach the merits of whether Vasquez’ sentence is illegal because the issue is procedurally barred by the doctrines of waiver and res judicata, because the holding in Dickey II should not be retroactively applied in this case and because the Supreme Court’s recent decision in State v. Warrior, 303 Kan. 1008, 368 P.3d 1111 (2016), held that a motion to correct an illegal sentence is not an appropriate vehicle to challenge the constitutionality of a sentence as Vasquez has done here. Finding no legal bar to our review, we hold that Vasquez’ sentence is illegal under Dickey II, and therefore vacate the sentence imposed and remand tire matter to the district court for resentencing.
Facts
On September 28, 2012, Vasquez pled guilty to one count of aggravated escape from custody, a severity level 5 nonperson felony. His escape occurred on June 23, 2012.
Vasquez’ presentence investigation (PSI) report reflected five crimes classified as person felonies in his criminal history. Four of the person felony convictions occurred in 1978 and each were identified as “burglary of a residence” in violation of K.S.A. 21-3715(a). The PSI report also reflected that Vasquez had been convicted of attempted robbeiy, a person felony, in 1982. At sentencing, Vasquez agreed, his PSI report was accurate and conceded his criminal history score should be “A.” Later in the sentencing hearing, the district court granted a motion for departure filed by Vasquez and sentenced him To 65 months in prison. Vasquez did not file a direct appeal.
In 2014, Vasquez filed a motion to correct an illegal sentence under K.S.A. 22-3504(1). In it, he argued the ruling in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016), required his pre-1993 person felonies to have been scored as nonperson felonies when calculating his criminal history score.
After he filed his motion, a panel of this court issued State v. Dickey, 50 Kan. App. 2d 468, 484, 329 P.3d 1230 (2014), aff'd 301 Kan. 1018, 350 P.3d 1054 (2015) (Dickey I). In Dickey I, we held that judicial factfinding at sentencing that goes beyond the existence of a prior conviction or the statutory elements constituting the prior conviction violates a defendants right under the Sixth Amendment to the United States Constitution based on the holdings in Descamps and Apprendi. 50 Kan. App. 2d at 489. While Dickeys petition for review was pending on appeal before our Supreme Court, Vasquez filed a second motion to correct an illegal sentence. In this second motion, Vasquez argued the district court erred by over-classifying his prior pre-KSGA burglary and robbery convictions as person felonies for criminal history purposes, which resulted in an illegal sentence under Descamps, Apprendi, and Dickey I.
The district court summarily denied both motions without a hearing. In its journal entry disposing of the motions, the court found neither Murdock nor Dickey I provided a basis for relief. The court also found Vasquez had waived the issues presented in his motions. Vasquez timely appealed. The Supreme Court subsequently affirmed this court’s holding in Dickey I.
Analysis
Vasquez claims the district court erroneously denied his motion to correct an illegal sentence. K.S.A. 22-3504(1) provides that “[t]he court may correct an illegal sentence at any time.” Whether a sentence is illegal is a question of law over which an appellate court has unlimited review. State v. Moncla, 301 Kan. 549, 551, 343 P.3d 1161 (2015). Our Supreme Court has defined “illegal sentence” under K.S.A. 22-3504 as:
“(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.” Monda, 301 Kan. at 551.
The State does not challenge Vasquez’ motion on the merits. Rather, it contends that Vasquez is procedurally barred from obtaining relief on his claim because (a) Vasquez waived his claim by failing to object to his criminal history score at sentencing; (b) Vasquez’ failure to raise his claim at sentencing or on direct appeal precludes the court from considering it now based on the doctrine of res judicata; (c) Vasquez is not entitled to have the Supreme Courts holding in Dickey II retroactively applied to his case; and (d) Vasquez’ motion to correct an illegal sentence is not the proper procedural vehicle to challenge the constitutionality of his sentence. Given the State’s arguments are all procedural in nature, we address each of them before reaching the merits of Vasquez’ claim of illegal sentence.
1. Procedural issues
a. Waiver
The State contends Vasquez waived the right to challenge his criminal history score because he failed to object to it at sentencing or on direct appeal. But the Supreme Court specifically addressed this contention in Dickey II and resolved it against the State’s position. In that case, the court held Dickey was not barred from challenging the classification of his prior burglary adjudication even after he stipulated to his criminal history score at sentencing:
“[A] defendant’s stipulation or failure to object at sentencing will prevent the defendant from later challenging the existence of convictions listed in his or her criminal histoiy. But a stipulation or lack of an objection regarding how those convictions should be classified or counted as a matter of law for the purpose of determining tire defendant’s criminal history score will not prevent a subsequent challenge under K.S.A. 22-3504(1) of his or her prior convictions. [Citation omitted.]” Dickey II, 301 Kan. at 1032.
The same analysis applies here. Thus, Vasquez has not waived his right to obtain relief from an illegal sentence by failing to object to his criminal histoiy score at sentencing.
b. Res judicata
Similarly, the doctrine of res judicata does not bar a, motion to correct an illegal sentence, which by statute may be brought at any time. The applicability of res judicata is a question of law over which the appellate court has unlimited review. State v. Robertson, 298 Kan. 342, 344, 312 P.3d 361 (2013).
The State correctly recites the general rule of res judicata, which requires a defendant to raise all available issues on direct appeal. See State v. Neer, 247 Kan. 137, 140-41, 795 P.2d 362 (1990). However, our Supreme Court has recognized the statutoiy exception for motions to correct illegal sentences, which the legislature expressly provides may be brought “at any time.” K.S.A. 22-3504(1); State v. Neal, 292 Kan. 625, 631, 258 P.3d 365 (2011). In Neal, the defendant filed a motion to correct an illegal sentence 7 years after his direct appeal, claiming for the first time that his prior misdemeanor convictions were improperly aggregated into a single person felony in determining his criminal history score. 292 Kan. at 627. The court held that because a motion to correct an illegal sentence may be filed at any time, the motion was not barred by res judicata. 292 Kan. at 631; see also State v. Martin, 52 Kan. App. 2d 474, Syl. ¶ 5, 369 P. 3d 959 (2016) (“Applying the doctrine of res judicata to bar challenges of an illegal sentence merely because they could have been brought in a direct appeal would undermine the clear statutory directive in K.S.A. 22-3504[l] that courts may correct an illegal sentence at any time.”).
Based on the holding by our Supreme Court in Neal, the doctrine of res judicata does not preclude Vasquez from seeking relief from an illegal sentence.
c. Retroactive application of the holding in Dickey II
The State argues Vasquez’ motion is procedurally barred because the Supreme Courts holding in Dickey II may not be retroactively applied to the current case, which was final when the Supreme Court’s opinion in Dickey II was filed.
As a general rule, “when an appellate court decision changes the law, that change acts prospectively and applies only to all cases, state or federal, that are pending on direct review or not yet final on the date of the appellate court decision.” State v. Mitchell, 297 Kan. 118, Syl. ¶ 3, 298 P.3d 349 (2013). However, the court’s holding in Dickey II is not a “change in the law” under that analysis, but rather an application of the constitutional rule announced in Apprendi and clarified by Descamps. See Dickey II, 301 Kan. at 1021 (“[C] lassifying Dickey’s prior burglary adjudication as a person felony violates his constitutional rights as described under Descamps and Apprendi.”); Martin, 52 Kan. App. 2d at 484 (“Descamps provided a means by which to determine whether certain sentencing determinations violated Apprendi, and Dickey [II] applied that framework to Kansas criminal histoiy determinations.”). Accordingly, the date Apprendi was decided is the relevant date for purposes of the retroactivity analysis. State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). In Gould, the court indicated that all post-Apprendi cases must comply with the constitutional rule announced in that case:
"Our holding on the constitutionality of upward departures under the KSGA has no retroactive application to cases final as of June 26, 2000, the date Apprendi was decided. However, the new constitutional sentencing rule established by Ap-prendi must be applied here and in all cases pending on direct appeal or which are not yet final or which arose after June 26, 2000. [Citation omitted.]” (Emphasis added.) Gould, 271 Kan. at 414.
Vasquez’ claim seeking relief from an illegal sentence in this case arose well after Apprendi; therefore, applying the Apprendi constitutional analysis set forth in Dickey II is not an improperly retroactive application of that law. Cf. Whisler v. State, 272 Kan. 864, 36 P.3d 290 (2001), cert. denied 535 U.S. 1066 (2002) (direct appeal final prior to Apprendi decision, so Apprendi was not retroactively applied). Our finding in this regard corresponds with this courts recent finding in Martin:
“[W]e find that retroactivity analysis is not applicable when it is determined by a court that a constitutional error affects the defendant’s criminal history score resulting in an illegal sentence. The legislative directive in K.S.A. 22-3504(1) allows courts to correct an illegal sentence at any time. Thus, we conclude that a claim under Dickey [11] may be brought by a defendant in a motion to correct illegal sentence even when the time for direct appeal has passed and the defendant’s sentence is final.” 52 Kan. App. 2d at 483-84.
As the court did in Martin, we conclude Vasquez is not procedurally barred from obtaining relief from an illegal sentence based on the fact that Vasquez’ case was final when the Supreme Court’s opinion in Dickey II was filed.
d. Applicability of the holding in Warrior
Although not in its brief because the Supreme Court’s opinion had not yet been filed, the State urged us at oral argument to deny Vasquez’ motion to correct an illegal sentence based on State v. Warrior, 303 Kan. 1008, 368 P.3d 1111 (2016), which held that a motion to correct an illegal sentence is not the proper procedural vehicle to challenge the constitutionality of a statute.
Vasquez challenges his sentence based on the second definition of a K.S.A. 22-3504 illegal sentence as defined by our Supreme Court: his sentence does not conform to the applicable statutoiy provision in terms of the punishment authorized. See Monda, 301 Kan. at 551. Specifically, Vasquez argues the burglary statute upon which each of his pre-1993 burglary convictions was based did not include the dwelling element required to classify the crime as a person felony; thus, the district court was constitutionally prohibited from classifying them as person felonies for criminal history purposes. Vasquez claims the district courts misclassification in this regard resulted in a higher criminal history score which, in turn, caused the court to impose an illegal sentence that did not conform to the applicable statutoiy provision in terms of the punishment authorized.
But the State contends Vasquez is precluded from obtaining relief on his claim based on Warrior, a case in which the Kansas Supreme Court recently held that a motion to correct an illegal sentence is not the proper procedural vehicle to challenge the constitutionality of a sentence. In Warrior, a jury convicted the defendant of first-degree murder and conspiracy to commit murder. Finding that two aggravating factors existed and outweighed any mitigating circumstances, the court sentenced Warrior to a hard 50 life sentence under K.S.A. 2005 Supp. 21-4635. Warriors sentence was upheld on direct appeal. See State v. Warrior, 294 Kan. 484, 277 P.3d 1111 (2012).
A year or so after Warriors sentence was upheld, the United State Supreme Court issued Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 2156, 186 L. Ed. 2d 314 (2013), in which it held that the Sixth Amendment requires any fact increasing a mandatory minimum sentence for a crime to be proved to a jury beyond a reasonable doubt. Shortly after Alleyne was decided, Warrior filed a motion to correct an illegal sentence, claiming the hard 50 statute under which she was sentenced, K.S.A. 2005 Supp. 21-4635, was unconstitutional. That motion was summarily denied, and Warrior appealed. While Warrior’s case was pending on appeal, the hard 50 statute at issue was held unconstitutional in State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014).
Affirming the district court s decision to deny Warrior s motion to correct an illegal sentence, the Warrior court held that the “motion to correct an illegal sentence is not an appropriate procedural vehicle to challenge the constitutionality of the procedures used to impose her hard 50 life sentence.” Warrior, 303 Kan. at 1010. The Warrior court held that Warrior’s claim fell under the general rule that K.S.A. 22-3504 “does not cover a claim that a sentence violates a constitutional provision.” Warrior, 303 Kan. at 1010 (citing State v. Mitchell, 284 Kan. 374, 376-77, 162 P.3d 18 [2007]); see also Moncla, 301 Kan. at 553-54 (“‘Because the definition of an illegal sentence does not include a claim that the sentence violates a constitutional provision, a defendant may not file a motion to correct an illegal sentence based on constitutional challenges to his or her sentence.’”).
But unlike the defendants claim in Warrior, Vasquez does not challenge the constitutionality of the statute upon which his current conviction is based or the sentence imposed by the court as a result of the current conviction. Instead, Vasquez identifies the constitutional violation in this case as the sentencing court’s factual determination that all of his pre-1993 burglary convictions involved a dwelling. As Vasquez correctly states in his brief, the burglary statute upon which each of his pre-1993 convictions was based did not include a dwelling element. As such, Vasquez claims the sentencing court went beyond simply identifying the statutory elements that constituted the prior burglary convictions and affirmatively engaged in judicial factfinding, which impermissibly invaded the province of a jury under the Sixth Amendment. As a result of this constitutional error, Vasquez alleges the sentencing court misclassified his prior burglary convictions as person offenses, which increased his criminal history and resulted in an illegal sentence that did not comply with the applicable statutory provision regarding the term of punishment authorized.
Because it is grounded in the sentencing court’s misclassification of his prior convictions as person offenses for purposes of calculating criminal history, Vasquez’ claim here is identical to claims where Kansas courts have held K.S.A. 22-3504 to be the proper procedural vehicle to challenge an illegal sentence. See Neal, 292 Kan. at 631 (challenge to criminal history score necessarily challenges sentence that criminal history score helped produce; if criminal history score is wrong then resulting sentence cannot conform with statutory provision governing term of punishment authorized); State v. Luarks, 302 Kan. 972, 975, 360 P.3d 418 (2015) (claim alleging misclassification of prior convictions as person offenses “necessarily raise[s] a claim that the current sentence is illegal because it does not comply with tire applicable statutory provision regarding the term of punishment authorized”); Dickey II, 301 Kan. at 1034 (legal challenge to classification of prior adjudication or conviction for purposes of lowering criminal history score is claim that can be raised for first time on appeal in motion to correct illegal sentence under K.S.A. 22-3504).
Thus, Vasquez’ claim falls squarely within the scope of relief afforded by the legislature under K.S.A. 22-3504; and his motion to correct an illegal sentence is properly before the court as a challenge to a “sentence that does not conform to the applicable statutory provision, either in character or the term of authorized punishment.” See State v. Gilbert, 299 Kan. 797, 801, 326 P.3d 1060 (2014).
2. Illegal sentence
a. 1978 burglary convictions
Finding no procedural bar, we now address the merits of Vasquez’ claim of an illegal sentence based óñ the sentencing court’s erroneous classification of his four 1978'burglary conviction as person felonies in violation of his constitutional rights under Descamps, 133 S. Ct. at 2281-87 (sentencing judge violates Sixth Amendment by increasing criminal sentence based on facts about prior burglary that were not proven to jury beyond reasonable doubt), Apprendi, 530 U.S. at 490 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”), and as applied by our Supreme Court in Dickey II. The State does not dispute that if Dickey II applies, Vasquez’ sentence is illegal.
Dickey II presented almost identical facts to those presented here. In that case, Dickey pled guilty to felony theft. At sentencing, his PSI report listed a 1992 juvenile adjudication for burglary, which the sentencing court classified as a person felony. Dickey did not object to his criminal history score or PSI report at sentencing. On appeal, he challenged the classification of the prior adjudication as a person felony as a violation of his Sixth Amendment rights established by the United States Supreme Court in Apprendi and Descamps. Dickey II, 301 Kan. at 1023. The court found that the 1992 burglary statute under which Dickey had previously been adjudicated did not require evidence that the burglarized structure was a dwelling. 301 Kan. at 1039. The court noted that the distinction between person and nonperson crimes did not exist when Dickey was adjudicated but after the KSGA was enacted in 1993, a burglary had to be of a “dwelling” in order to be classified a person felony. See K.S.A. 2015 Supp. 21-6811(d).
The Dickey II court ultimately held the sentencing court was constitutionally prohibited from making a factual determination that the prior burglary adjudication involved a dwelling. The court’s improper determination in that regard necessarily resulted in mis-classification of the prior adjudication as a person offense. This, in turn, increased Dickeys criminal history score and resulted in an illegal sentence that did not comply with the applicable statutoiy provision regarding the term of punishment authorized. 301 Kan. at 1020-21.
Like the facts in Dickey II, -the burglary statute in effect at the time Vasquez committed the 1978 burglaries did not contain the dwelling element required to classify the crime as a person felony. Under the legal principles set forth in Dickey II, then, we conclude the sentencing court violated Vasquez’ constitutional right by finding the four 1978 burglaries involved a dwelling and, as a result, erroneously misclassified those prior burgláries ás person felonies for purposes of calculating Vasquez’ criminal history score, which resulted in an illegal sentence that did not comply with tire applicable statutory provision regarding the term of punishment authorized.
b. 1982 attempted robbery conviction
The final issue that remains to be decided in this case is whether Vasquez’ 1982 conviction for attempted robbery was also misclassified as a person felony. To support his claim that this conviction was misclassified, Vasquez relies entirely on Murdock. In Murdock, the Kansas Supreme Court found that when calculating a defendant’s criminal history, all out-of-state crimes committed prior to the enactment of the KSGA in 1993 must be classified as nonperson offenses. 299 Kan. 312, Syl. ¶¶ 4-5. Vasquez argues that the same reasoning applies to in-state convictions as well. To bolster this argument, Vasquez asserts that treating in-state convictions differently than out-of-state convictions violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
But Murdock was explicitly overruled by the Kansas Supreme Court in Keel, 302 Kan. at 589. In Keel, our Supreme Court found that classification of a prior in-state conviction must be based on the classification in effect for the comparable offense when the current crime of conviction was committed. 302 Kan. at 590. This ruling is consistent with recent amendments to the statute governing classification of Kansas offenses for criminal history purposes. See L. 2015, ch. 5, sec. 1. Vasquez argues that applying the amended statute to him would violate the Ex Post Facto Clause of Article 1, Section 10 of the United States Constitution. But he only malees this argument to seek application of the now obsolete Murdock rule to his case, and Murdock was specifically overruled by Keel. And relevant to Vasquez’ argument, the Keel court specifically found that its holding was based on State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003), overruled in part by State v. Dickey, 301 Kan. 1018; and State v. Sylva, 248 Kan. 118, 120-21, 804 P.2d 967 (1991), and did not rely on the recent statutory amendment. Keel, 302 Kan. at 589-91.
Despite the fact that Vasquez filed a reply brief in this case 4 months after Murdock had been overruled by Keel, he fails to brief any issues relating to the comparability of attempted robbery as defined in 1982 and 2011. An issue not briefed on appeal is deemed waived and abandoned. State v. Jones, 300 Kan. 630, 639, 333 P.3d 886 (2014).
Based on the discussion above, we vacate the sentenced imposed and remand the matter to the district court with directions to reclassify the 1978 burglaries as nonperson offenses, recalculate Vasquez’ criminal history score based on reclassification, and re-sentence Vasquez based on the recalculated criminal history score. | [
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McAnany, J.:
The Travelers Indemnity Company of Illinois (Travelers) appeals from the district court’s judgment in its favor against Challenger Fence Company, Inc., (Challenger). Travelers claims the judgment was inadequate to compensate it for the premium it was due on an insurance policy it issued to Challenger. Finding no error by the district court, we affirm.
Travelers issued its workers compensation and employers liability policy to Challenger for the period June 15, 2000, to June 15, 2001. The premium was based upon die following formula contained in the policy:
“C. Remuneration
“Premium for each work classification is determined by multiplying a rate times a premium basis. Remuneration is the most common premium basis. This premium basis includes payroll and all other remuneration paid or payable during the policy period for the services of:
“1. All your officers and employees engaged in work covered by this policy; and
“2. All other persons engaged in work that could make us liable under Part One (Workers Compensation Insurance) of this policy. If you do not have payroll records for these persons, the contract price for their services and materials may be used as the premium basis. This paragraph 2 will not apply if you give us proof that the employers of these persons lawfully secured their workers compensation obligations.”
The employees of Challenger described in paragraph C. 1. were generally carpenters, salespersons, and clerical workers. This suit involves persons — here, subcontractors of Challenger — whom Travelers claims should have been counted in the premium calculation under paragraphs C. 1. or C. 2.
Challenger paid $3,511 as the estimated policy premium when it first purchased the policy. The exact premium for the policy was to be calculated retroactively based upon an audit conducted by Travelers at the end of the policy period. Following the audit, Travelers issued to Challenger a premium adjustment notice which Challenger disputed. Challenger contended that the calculation included Terry Schmidt, Todd Navinsky, and Robert Libel, who were independent subcontractors and not Challenger employees. When it was apparent that Travelers and Challenger could not agree on the premium, Travelers sued Challenger. At trial, the court ruled that Schmidt and Navinsky were subcontractors who should be excluded from the premium calculation. The court entered judgment in favor of Travelers in the amount of $3,437. Travelers appeals.
The Premium Calculation
Travelers claims the court erred in excluding Schmidt and Navinsky from the premium calculation. Challenger claims they were independent subcontractors not covered by the policy. Interpretation of the Travelers policy is an issue of law which we review de novo. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001). If the terms of the policy are plain and unambiguous, we will look to the policy itself to determine its meaning and the intention of the parties. Zukel v. Great West Managers, LLC, 31 Kan. App. 2d 1098, 1101, 78 P.3d 480, rev. denied 277 Kan. 928 (2003). Since the policy relates to workers compensation coverage, we must also look to pertinent provisions of the Kansas Workers Compensation Act, K.S.A. 44-501 et seq., and cases applying them. Finally, we evaluate the trial court’s findings of fact to determine if there is substantial evidence to support them.
An employee for purposes of workers compensation is “any person who has entered into the employment of or works under any contract of service or apprenticeship with an employer . . . [except for] individual employers ... or self-employed persons.” K.S.A. 2004 Supp. 44-508(b). In a workers compensation case, an employee-employer relationship exists when the employer has the right to control and supervise an alleged employee’s work, the right to direct the manner of performance of the work, and the right to direct the result to be accomplished. Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191, 198, 558 P.2d 146 (1976). An independent contractor, on the other hand, contracts to do work according to his or her own methods, without being subject to the control of the hiring authority, except as to the results of the work. Falls v. Scott, 249 Kan. 54, 64, 815 P.2d 1104 (1991).
The various factors the court should consider in resolving this issue are set forth in the Restatement (Second) of Agency § 220(2) (1957), and are spelled out in Knorp v. Albert, 29 Kan. App. 2d 509, 514, 28 P.3d 1024 (2001). However, as noted in McCubbin v. Walker, 256 Kan. 276, 281, 886 P.2d 790 (1994): “The single most important factor in determining a worker’s status as an employee or independent contractor is whether the employer controls, or has the right to control, the manner and methods of the worker in doing the particular task.”
Challenger presented testimony at trial that it did not control Schmidt or Navinsky or monitor their daily work hours while on any particular job. Challenger did not pay taxes, unemployment insurance, disability insurance, or provide other benefits to either Schmidt or Navinsky. Challenger did not set their work hours, nor did it provide them with tools, company vehicles, or other company workers to assist them in their work. Neither Schmidt nor Navinsky was paid W-2 wages. Challenger used them as subcontractors to do piece work as needed and solicited bids from them for the work.
Travelers claims Schmidt’s testimony on these matters at trial was unreliable and should be disregarded. However, we do not determine the credibility of witnesses. State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 775, 69 P.3d 1087 (2003). There was substantial evidence to support the district court’s finding that Schmidt and Navinsky were independent contractors and not employees covered by paragraph C. 1. of the policy.
Travelers argues that even if Schmidt and Navinsky were not employees for purposes of premium calculation under paragraph C. 1. of the policy, they should still be counted under paragraph C. 2. because they were “persons engaged in work” for whom the workers compensation coverage of the policy could apply. Travelers relies on K.S.A. 44-503(a) for support of this proposition. However, this subsection of the statute concludes with the provision: “For the purposes of this subsection, a worker shall not include an individual who is a self-employed subcontractor.” K.S.A. 44-503(a). Since that was the status of Schmidt and Navinsky, K.S.A. 44-503(a) does not bring them within the aegis of paragraph C. 2. of the policy. Further, because Schmidt and Navinsky were self-employed and there was no evidence they employed others, they were not subject to the Workers Compensation Act at all and, therefore, did not expose Travelers to any potential liability for workers compensation benefits under the policy. See K.S.A. 44-505.
Hearsay
In the course of negotiating the premium amount, Challenger provided to Travelers notarized statements from Schmidt and Navinsky. At trial these statements were admitted not to prove the truth of their contents but rather to show that Challenger had complied with requests for documentation from Travelers in an effort to resolve the premium dispute. Travelers claims, however, that once the documents were admitted, the district court erred by treating their contents as substantive evidence, thereby rendering the statements inadmissible hearsay. To support this contention, Travelers notes the comment by the district court in its ruling that it was taking out of the premium calculation “the two that have provided the notarized statements.” This does not establish, or even suggest, that the district court relied upon the contents of the statements. This was simply the court’s way of identifying Schmidt and Navinsky about whom there was substantial evidence of their independent contractor status.
Travelers argues that the district court must have relied on the substance of the statements in order to determine that Schmidt and Navinsky had otherwise secured their own workers compensation obligations. This does not follow. Schmidt and Navinsky had no obligation to secure other workers compensation coverage since no evidence was presented that they had employees for whom they might be liable for workers compensation benefits. Paragraph C. 2. of the policy extended Challenger’s premium obligation to “[a]ll other persons engaged in work that could make us hable under Part One (Workers Compensation Insurance) of this policy.” The requirement that Challenger give Travelers “proof that the employers of these persons lawfully secured their workers compensation obligations” arises only if “these persons” could expose Travelers to liability under the policy. Since Schmidt and Navinsky presented no such exposure for Travelers, Challenger had no duty to prove that they had their own coverage. Thus, it does not follow that the district court had to consider die substance of the statements admitted into evidence in order to come to the conclusion that no premium was due under the policy for Schmidt and Navinsky.
Prejudgment Interest
Finally, Travelers argues that the district court erred in failing to award prejudgment interest from March 11, 2002, pursuant to K.S.A. 16-201. We review the failure to award prejudgment interest using the abuse of discretion standard. Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002). The key requirement for prejudgment interest is for money to become due. The lack of a readily identifiable liquidated sum and the lack of a clear explanation of the significance of the claimed March 11, 2002, date suggest why the district court was silent on the issue of prejudgment interest. Travelers fails to demonstrate that the district court abused its discretion in this regard.
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Knudson, J.:
The Boeing Company and the Insurance Company of the State of Pennsylvania appeal the decision of the Workers Compensation Board (Board) awarding Patrick J. Roskilly work disability benefits. Boeing argues Roskilly is not entitled to work disability benefits under our previous decision in Watkins v. Food Barn Stores, Inc., 23 Kan. App. 2d 837, 936 P.2d 294 (1997). The following issues are presented: (1) Did the Board correctly interpret K.S.A. 44-510e(a); and (2) is Roskilly entitled to work disability benefits?
We affirm. Under the Board’s findings, Roskilly demonstrated substantial task loss and his return to the same work position without accommodation does not preclude an award for work disability benefits.
The underlying facts are not in material dispute. Roskilly was employed at Boeing as an assembler for many years. Beginning in April 1996, Roskilly worked under lifting restrictions because of an unstable back. He was limited to a maximum lift with both arms of 50 pounds and frequent lifts of 35 pounds. On October 25,2001, Rosldliy injured his lower back while lifting a part weighing 50 to 75 pounds. While undergoing medical evaluation and treatment, Roskilly apparently continued to work as an assembler without any additional restrictions that exceeded those previously set in 1996. On December 14, 2001, while still receiving medical care for his injury, Roskilly was laid off due to a general reduction of Boeing’s labor force. Significantly, a determination of Roskilly’s work disability was not made until much later. Ultimately, the Board found Rosldliy was entitled to a work disability award based on 59.5 percent permanent partial disability to the body as a whole.
There is no dispute by the parties that the Board’s findings of task loss and wage loss are based on substantial competent evidence in the record. The Board correctly imputed a post-injury wage in determining work disability benefits. Boeing has filed a timely appeal contending that as a matter of law Rosldliy is not entitled to benefits based on work disability following his layoff from an unaccommodated position. Boeing argues under K.S.A. 44-510e(a) and our decision in Watkins that permanent partial disability benefits should be based on Roskilly’s functional disability only.
K.S.A. 2004 Supp. 44-556(a) specifically subjects workers compensation appeals to the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. This court has jurisdiction to review tire Board’s interpretation of law and findings of fact. K.S.A. 77-621(c)(4) and (7). While we give deference to the Board’s interpretation of the law, if the Board’s interpretation is erroneous, we may take corrective action. Neal v. Hy-Vee, Inc., 277 Kan. 1, 11, 81 P.3d 425 (2003). Conversely, we are more restricted in our review of findings of fact. The Board’s findings will be upheld if supported by substantial evidence even though evidence in the record would have supported contrary findings. Webber v. Automotive Controls Corp., 272 Kan. 700, 705, 35 P.3d 788 (2001).
Watkins was decided under K.S.A. 1992 Supp. 44-510e(a), which provided the following formula for determining work disability:
“The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the ability of the employee to perform work in the open labor market and to earn comparable wages has been reduced, taking into consideration the employee’s education, training, experience and capacity for rehabilitation, except that in any event the extent of permanent partial disability shall not be less tiran percentage of functional impairment. . . . There shall be a presumption that the employee has no work disability if the employee engages in any work for wages comparable to the average gross weekly wage that the employee was earning at the time of the injury.”
In Watkins, the claimant returned to work post-injury and performed the same work for the same wage. In reversing the Board’s award based upon work disability, the court held that “[wjhere a previously injured employee returns to work in an unaccommodated job and earns wages comparable to those earned before his or her injuiy, the presumption of no work disability applies and will not be rebutted absent evidence of a change in the employee's physical condition." (Emphasis added.) 23 Kan. App. 2d 837, Syl.
The court further explained its rationale, stating:
“[I]t is uncontroverted that Watkins’ physical condition has not changed since his injury. It follows that physically, Watkins’ ability to perform work in the open labor market and earn comparable wages has not changed. The only change comes in the form of Watkins’ decreased earnings since his layoff from Food Bam. However, work disability focuses on the reduction in a claimant’s ability to earn wages, not on the actual wages lost. [Citation omitted.] Here, Watkins’ abilities have remained constant.” 23 Kan. App. 2d at 840.
The Watkins decision is clearly not controlling under the undisputed facts of this appeal. Although Rosldlly returned to his regular employment without accommodation by Boeing, the Board’s findings are conclusive that a presumption of no work disability was successfully rebutted. The Board accepted Dr. Murati’s opinion that his physical restrictions precluded Rosldlly from performing all of his regular duties. The Board summarized Dr. Murati’s restrictions as follows:
“He restricted claimant to bending rarely and prohibited crawling. He limited the claimant to occasional sitting, climbing stairs, climbing ladders, squatting and driv ing, with frequent standing and walking allowed. He limited claimant’s occasional lifting to a maximum of 35 pounds and frequent lifting up to 20 pounds.”
The Board also accepted Dr. Murati’s and Dr. Brown’s separate opinions that Rosldlly had a 10 percent impairment to the body as a whole and Murati’s opinion that Rosldlly suffered a 62 percent loss of tasks.
The Board correctly observed:
“It is the function of the trier of fact to decide which testimony is more accurate and/or credible and to adjust the medical testimony along with the testimony of the claimant and any other testimony which may be relevant to the question of disability. The trier of fact is not bound by medical evidence presented in the case and has the responsibility of making its own determination.”
It is apparent the Board recognized the unique circumstances of this case. Roskilly returned to regular employment for a very limited period of time before the layoff; his medical treatment continued with definitive evaluations only after termination; those medical evaluations assessed changes in Roskilly’s physical condition as a direct result of the injury sustained on October 25, 2001; and the evaluations found most credible by the Board support its determination of work disability.
We turn next to discussion of the Board’s interpretation of existing K.S.A. 44-510e(a), amended by the legislature in 1993. The statute states, in material part:
“The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injury. In any event, the extent of permanent partial general disability shall not be less than the percentage of functional impairment. ... An employee shall not be entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of die average gross weekly wage that the employee was earning at the time of the injury.” (Emphasis added.) K.S.A. 44-510e(a).
In interpreting K.S.A. 44-510e(a) and contrasting it with the prior law and Watkins, the Board stated:
“It is no longer an ability test, at least not in the sense of being applicable to the prospective job market, that is from the date of accident forward. Putting aside for the moment the question of good faith, to the extent ability is still a factor under the current statute, it is retrospective, instead of prospective. That is because the extent to which the injured worker’s ability to work has been impacted is measured by the loss of actual job tasks the worker performed in any substantial gainful employment during the fifteen-year period preceding the accident. The loss is no longer measured by the total open labor market that exists after the accident. The rationale for this change was to get away from hypothetical jobs which the worker may or may not have had the education, training or experience to perform, and to, instead, utilize jobs the worker actually performed. The effect of tliis change is to render meaningless the distinction between accommodated and unaccommodated jobs, except to the extent that the concepts impact the task loss analysis. Accordingly, it is only in the situation where the injured worker had worked exclusively in the same job for the entire fifteen years preceding the accident that tire successful return to that same unaccommodated job would establish a prima facie case for no work disability.
“In short, Watkins involved a different definition of work disability. The former version of K.S.A. 44-510e involved an ability test both as to jobs and wages, and Watkins is premised on that ability test. This distinction has been recognized by the Court of Appeals.
“Currently, ability or capacity to earn wages only becomes a factor when a finding is made that a good faith effort to find appropriate employment has not been made. Copeland v. Johnson Group, Inc., 26 Kan. App. 2d 803, 804, 995 P.2d 369 (1999), rev. denied 269 Kan. 931 (2000). Once a finding has been made that the claimant has established a good faith effort, the difference in pre-and post-injury wages can be based on the actual wages made. Copeland, 26 Kan. App. 2d at 804.”
The Board concluded K.S.A. 44-510e(a) does not preclude an award of work disability after a claimant’s loss of employment, even though due to reasons other than his or her injury.
We agree with the Board’s interpretation of K.S.A. 44-510e(a). “The new two-part test for finding and measuring work disability includes both a measurement of the loss of ability to perform, work tasks and actual loss of wages resulting from the worker’s disability.” Gadberry v. R.L. Polk & Co., 25 Kan. App. 2d 800, 802-03, 975 P.2d 807 (1998). In Gadberry, the court held: “An employee who returns to work at the employee’s pre-injury wage and then within a few weeks of the date of return receives a termination notice due to economic layoff is not precluded from a finding of wage loss for workers compensation benefits.” 25 Kan. App. 2d 800, Syl. ¶ 4.
In addition, the 1993 legislative amendment to K.S.A. 44-510e(a) removed from the statute the language “[t]here shall be a presumption that the employee has no work disability if’ the employee engages in any work for wages comparable to the average gross weekly wage that the employee was earning at the time of the injury, and replaced the same with the language “[a]n employee shall not be entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury.” (Emphasis added.) L. 1993, ch. 286, sec. 34. The language of tire statute as amended is plain and unambiguous, leaving no room for judicial construction. See Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). We hold that on its face K.S.A. 44-510e(a) no longer may be read to make a distinction between accommodated employment and unaccommodated employment when determining an injured worker s right to recover work disability benefits.
For all of the foregoing reasons, we affirm the decision of the Board.
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The opinion of the court was delivered by
Stegall, J.:
The Wichita Police Department received information that a resident of 2720 N. Erie in Wichita, Dontae Patterson, was selling narcotics. The police obtained and executed a search warrant that described the place to be searched as “[t]he premises of 2720 N. Erie, Wichita, Sedgwick County, Kansas.” The warrant authorized a search for various items at tire premises related to the sale of marijuana including any marijuana, drug paraphernalia, currency, records of sales, evidence of occupancy or ownership of the residence, firearms connected with the sale of marijuana, scanners or radios used in the sale, and indicia of gang affiliation or membership including clothing. The supporting affidavit identified Pattersons minor son, D.M.P, as also residing at that location. The affidavit indicated that D.M.P. had a juvenile criminal record and was flagged as a member of a criminal street gang in the Wichita Police Departments database.
During the search of tire house, officers found various amounts of marijuana, a white chunk-like residue that field-tested positive for cocaine, a digital scale, $10,020 in cash, a bag of marijuana seeds, and a Glock firearm. Officers also searched a Mercedes parked in the driveway and found a glass container with white crusty residue, a box of sandwich bags, a digital scale with powdery residue, and a Taurus handgun. At the time the warrant was executed, Patterson was inside the house and D.M.P. was sitting in the drivers seat of the Mercedes. Following the search, Patterson was arrested and charged with various crimes including distribution of marijuana, felon in possession of a firearm, possession of cocaine, and possession of drug paraphernalia.
Patterson filed numerous motions to suppress the evidence obtained during the search, including a motion to suppress the evidence found in the Mercedes. At the suppression hearing, Wichita Police Officer John Groh testified that as he and other officers approached the home to execute the warrant, he saw a white Mercedes backed into the driveway and a juvenile male sitting behind the steering wheel. Groh testified the juvenile was D.M.P. Groh described the Mercedes as backed up to “within a few feet” of the house. The car was parked, engine not running, and facing the street. Following safety protocol, Groh and other officers ordered D.M.P. out of the car. Officers then secured the home and its occupants and conducted a concurrent search of both the vehicle and the residence.
The district court granted Pattersons motion to suppress tire evidence found in the Mercedes on the grounds that it was not within the scope of the search warrant and the evidence would not have inevitably been discovered. The State took a timely interlocu tory appeal, and the Court of Appeals reversed the district courts decision. State v. Patterson, 49 Kan. App. 2d 1001, 319 P.3d 588 (2014). The panel held that the search warrant for the “premises” authorized the search of any vehicles within the curtilage of the home, and the Mercedes was within the curtilage. 49 Kan. App. 2d at 1007-10. We granted Patterson’s petition for review.
Analysis
This appeal presents only one question: Was the search of the Mercedes authorized by (or within the scope of) the search warrant? Patterson argues the Court of Appeals erroneously concluded the Mercedes was within the curtilage of the residence described in the search warrant — and that it was therefore outside the scope of searches authorized by the warrant. The State, unsurprisingly, argues that the Court of Appeals panel correctly found that tire Mercedes was located within the curtilage and was therefore included within the scope of the warrant’s authorized search of the premises.
Our standard of review in cases such as this is well established:
“An appellate court generally reviews a trial courts decision on a motion to suppress using a bifurcated standard. The trial courts findings are first reviewed to determine whether they are supported by substantial competent evidence. Appellate courts do not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. The ultimate legal conclusion regarding the suppression of evidence is then reviewed de novo. If the material facts in a trial court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. [Citation omitted.]” State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013).
“On a motion to suppress evidence, the State bears the burden of proving to the district court the lawfulness of the search and seizure by a preponderance of the evidence.” State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). Here, material facts are not in dispute, and we exercise plenary review. See Martinez, 296 Kan. at 485.
The Fourth Amendment to the United States Constitution requires that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” "The scope of Section 15 of the Kansas Constitution Bill of Rights is identical to that of the Fourth Amendment to the United States Constitution.” State v. LeFort, 248 Kan. 332, 334, 806 P.2d 986 (1991); see also K.S.A. 2015 Supp. 22-2502(a) (Statute authorizes the issuance of search warrants “which particularly describes a person, place or means of conveyance to be searched and things to be seized.”).
“To satisfy tire specificity requirement of the constitutions the search warrant must describe the premises to be searched with sufficient particularity to permit the executing officer to locate the same from the face of the warrant. [Citations omitted.]” LeFort, 248 Kan. at 334-35; see also Steele v. United States No. 1, 267 U.S. 498, 503, 45 S. Ct. 414, 69 L. Ed. 757 (1925) (“It is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.”). “The purpose of this requirement is to prevent general searches and to prevent the seizure of an item at the discretion of the officer. [Citations omitted.]” LeFort, 248 Kan. at 337. “If the scope of the search exceeds that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more.” Horton v. California, 496 U.S. 128, 140, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).
“[W]arrants and their supporting affidavits are interpreted in a common sense, rather than a hypertechnical, fashion. To do otherwise would tend to discourage police officers from submitting their evidence to a judicial officer before acting.” LeFort, 248 Kan. at 335-36; see K.S.A. 22-2511 (“No search warrant shall be quashed or evidence suppressed because of technical irregularities not affecting the substantial rights of the accused.”); see also United States v. Young, 263 Fed. Appx. 710, 713 (10th Cir. 2008) (unpublished opinion) (“The scope of a warrant is determined using ‘a standard of practical accuracy rather than technical precision.’”).
Here, the warrant accurately and particularly described the place to be searched as “[t]he premises of 2720 N. Erie, Wichita, Sedgwick County, Kansas.” The only question presented is whether, as a matter of law, this description was broad enough to include the search of tire Mercedes parked in the driveway. As a general matter, “the term premises’ as used in [a] warrant include[s] all property necessarily a part of and appearing so inseparable as to be considered a portion thereof.” State v. McClelland, 215 Kan. 81, 84, 523 P.2d 357 (1974) (citing State v. Caldwell, 20 Ariz. App. 331, 334, 512 P.2d 863 [1973] [“A search of premises, however, may include all property necessarily a part of the premises and so inseparable as to constitute a portion thereof.”]). The term premises, therefore, describes a single unit of ownership — i.e., the whole of the property.
In State v. Basurto, 15 Kan. App. 2d 264, 807 P.2d 162, aff’d 249 Kan. 584, 821 P.2d 327 (1991), a Court of Appeals case this court adopted and affirmed, the court was confronted with a warrant that did not include the term “premises” or a like description of the entire unit of ownership. The Basurto panel concluded that even in the absence of a broader description of a unit of ownership, the description of a residence included its curtilage. See 15 Kan. App. 2d at 266-71. Basurto reasoned that “[w]hile the use of the term ‘premises’ in a search warrant may be desired to avoid arguments such as the one with which we now deal, it is not required in eveiy instance. The law is clearly established that a search warrant which describes a specific residence authorizes a search of the ‘curtilage’ of that residence.” 15 Kan. App. 2d at 271.
“At common law, the curtilage is the area to which extends tire intimate activity associated with the ‘sanctity of a man’s home and the privacies of life,’ . . . and therefore has been considered part of home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984) (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct. 524, 29 L. Ed. 746 [1886]). Courts have defined curtilage “by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.” Oliver, 466 U.S. at 180. The Court has referenced four factors for resolving whether a particular area is curtilage:
“[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by. [Citation omitted.]” United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987).
The Court clarified, however, that those factors are not a process to be “mechanically applied” but “are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration — whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” 480 U.S. at 301.
Therefore, when considering the scope of a warrant describing a residence only {i.e., a warrant lacking any broadening language such as “premises” that would clearly include the entire “property” on which the home is situated) it is reasonable for courts to conclude, as did Basurto, that the scope of such a warrant is coterminous with the “umbrella” of the home’s Fourth Amendment protection. So while the legal definitions and doctrines of curtilage began as a shield with which individuals could protect themselves against warrantless searches, numerous jurisdictions including our own have reasonably used the concept of curtilage as a sword with which the State can expand the scope of a warrant that only specifically describes a home to be searched. See, e.g., United States v. Cannon, 264 F.3d 875, 881 (9th Cir. 2001) (“A search warrant for a residence may include all other buildings and other objects within the curtilage of that residence, even if not specifically referenced in the search warrant.”); United States v. Gorman, 104 F.3d 272, 275 (9th Cir. 1996) (“If a search warrant specifying only the residence permits the search of ‘closets, chests, drawers, and containers’ therein where tire object searched for might be found, so should it permit the search of similar receptacles located in the outdoor extension of the residence, i.e., the curtilage, such as the container in this case. To hold otherwise would be an exercise in pure form over substance.”); Commonwealth v. McCarthy, 428 Mass. 871, 873, 705 N.E.2d 1110 (1999) (scope of warrant describing residence extends to automobiles located within the curtilage); State v. Woodrome, 407 S.W.3d 702, 708 (Mo. App. 2013) (“[I]f a dwelling is subject to search, as by a warrant, then the curtilage may also be searched pursuant to the warrant, even if it is not specifically mentioned in tire warrant”); State v. Vicars, 207 Neb. 325, 330-31, 299 N.W.2d 421 (1980) (A search warrant which directs that a search be made of a specific dwelling house also authorizes tire search of outbuildings included within the curtilage, although not described specifically.).
Without disturbing the Basurto rule today, we note explicitly what Basurto implicitly acknowledged — using the doctrine of cur-tilage to define the outer scope of a search warrant is less than ideal. Defining curtilage, particularly according to tire Dunn factors, is a complex legal exercise and risks “hypertechnical” warrant interpretations which, at a minimum, will interfere with the ability of law enforcement officers to clearly understand the extent of the warrant. Using the concept of curtilage in such a cross-over fashion likewise risks unintended consequences in future, yet-to-be-contemplated cases and factual scenarios. See, e.g., Dunn, 480 U.S. at 313-14 (Brennan, J., dissenting) (arguing that in narrowing the definition of curtilage, “the Court also narrows the scope of searches permissible under a warrant authorizing a search of building premises”).
Fortunately, in Pattersons case, the issuing magistrate included terms — specifically the term “premises” — in the warrant itself setting the outer boundary of the warrants scope at the totality of the unit of property ownership. Applying this kind of “property-rights baseline” to Fourth Amendment issues has the clear virtue of keeping “easy cases easy.” Florida v. Jardines, 569 U.S. _, 133 S. Ct. 1409, 1417, 185 L. Ed. 2d 495 (2013). As such, we conclude that an analysis of the extent of the curtilage of the home — -and whether the Mercedes was within the curtilage — is unnecessary in this case because the Mercedes was, without any doubt, on the premises described in the warrant. See State v. Sprague, 303 Kan. 418, 435, 362 P.3d 828 (2015) (citing McClelland and holding that a warrant using the term “home” in conjunction with a description of “areas outside the home” was sufficient to describe the entire premises and included outbuildings on the property); see also State v. Ogden, 210 Kan. 510, 518-19, 502 P.2d 654 (1972) (trashcan in a yard “was properly considered as a part of the premises’ to be searched”).
Our conclusion that the Mercedes was physically located within the area described by the warrant does not entirely resolve Pat-tersons appeal. Presumptively, all containers within the scope of a search warrant can themselves be searched without a separate search warrant specific to that container:
“A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a foodocker to search for marihuana would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.” United States v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982).
The State suggests, with significant support, that a vehicle physically located within the scope of a warrant is simply another one of the many containers that could hold the evidence being sought. See, e.g., United States v. Napoli, 530 F.2d 1198, 1200 (5th Cir. 1976) (“We think that the reference to ‘on the premises known as 3027 Napoleon Avenue’ was sufficient to embrace the vehicle parked in the driveway on those premises.”); Massey v. Commonwealth, 305 S.W.2d 755, 756 (Ky. 1957) (“it is not more necessary to describe a car on the premises than it would be to describe any other item of personal property in which the liquor might be stored”); Commonwealth v. Fernandez, 458 Mass. 137, 144-46, 934 N.E.2d 810 (2010) (search warrant encompassed driveway where defendant parked his vehicle and police were authorized to search); see also 2 LaFave, Search & Seizure, A Treastise on the Fourth Amendment § 4.10(c) Vehicles on or near described premises, pp. 953-58 (5th ed. 2012) (collecting numerous sources allowing searches of vehicles on the premises).
In response, Patterson cites authority for the proposition that when containers are mobile and accompanied by reasonable in dications of innocent ownership, the general rule will not apply. Patterson points out that the Court has noted “a persons mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979). Following this reasoning, the warrant at issue in Ybarra to search the Aurora Tap Tavern and its bartender for cocaine did not authorize the search of every customer in the tavern. 444 U.S. at 91; see also State v. Vandiver, 257 Kan. 53, 63, 891 P.2d 350 (1995) (“For a warrant to authorize a search of all persons on the premises where the warrant is being executed, the affidavit must contain facts sufficient for the issuing magistrate to believe that the premises are confined to ongoing illegal activity and that every person within the orbit of the search possesses the items sought by the warrant.”).
Similarly, Patterson suggests, a vehicle is a mobile container that may have arrived innocently on the premises and may have no connection with the criminal activity giving rise to the underlying probable cause supporting the issuance of the warrant. Pat-tersons position is, again, not without support in our caselaw. In State v. Coker, No. 89,851, 2003 WL 22697577 (Kan. App. 2003) (unpublished opinion), the defendant had arrived at the residence described in the search warrant just prior to the search in order to give a resident a ride. The court concluded that a visitor, and the visitor s automobile (to which probable cause of illegal activity was never extended), was not within the scope of the search warrant. 2003 WL 22697577, at *3-4.
The Tenth Circuit Court of Appeals has addressed this issue in some detail. In United States v. Gottschalk, 915 F.2d 1459, 1461 (10th Cir. 1990), the court articulated the rule that a vehicle located within the physical scope of the warrant is “generally include[d] ... if the objects of the search might be located therein.” Gottschalk went on, however, to articulate an exception to this general rule:
“[T]he better rule in these circumstances is to define the scope of the warrant to include those automobiles either actually owned or under the control and dominion of the premises owner or, alternatively, those vehicles which appear, based on objectively reasonable indicia present at the time of the search, to be so con trolled. Thus where the officers act reasonably in assuming that the automobile is under the control of the premises owner, it is included in the warrant.” 915 F.2d at 1461.
We are convinced that the Gottschalk test is correct, and we adopt it. The Court of Appeals panel below likewise applied the Gottschalk test and concluded that objectively reasonable indicia present at the time of the search indicated the Mercedes was controlled by Patterson. Patterson, 49 Kan. App. 2d at 1009-10. The panel emphasized that “[t]he position of the car in the driveway, the manner in which it was parked, and its nearness to the house all suggested that the car belonged to a resident of the household and not a visitor.” 49 Kan. App. 2d at 1009. Further,
“the only individuals on the property were Patterson, Pattersons son, tire young adult male named in the application for the warrant, and a juvenile under driving age. As all the individuals in the household of driving age appeared in the application and were understood by officers as living at the residence, it was reasonable to conclude that the Mercedes belonged to the owner or occupier of the premises — -namely, Patterson or another person named in the warrant.” 49 Kan. App. 2d at 1009-10.
Patterson suggests these facts are irrelevant because there was no evidence Patterson was the owner of the residence. The Tenth Circuit recently confronted this same argument and clarified the Gottschalk rule:
“While Gottschalk rejects a broad authority to search any vehicle located within the curtilage of a premises to be searched — it would, for example, prevent officers from searching a guest’s vehicle that was incidentally present within the curtilage at the time of the search, see [915 F.2d] at 1460-61 — its holding and rationale are sufficiently broad to encompass vehicles actually or apparently owned or controlled by long-term residents who exercise possessory ownership of the premises.” United States v. Hohn, 606 Fed. Appx. 902, 909 (10th Cir. 2015) (unpublished opinion).
The affidavit affixed and incorporated into the search warrant stated that Patterson lived at the residence. The panels summation of the objectively reasonable indicia concerning the Mercedes is supported by the record. The panel correctly noted the location of the vehicle is itself indicative of a close relationship between whoever drove the vehicle and the residence. Further, Pattersons son, a juvenile who was named in the warrant, was sitting in the front seat of the Mercedes when the officers arrived on the scene. Given these factors — which were reasonably apparent to the officers at the time of the search — we conclude that the search of the Mercedes was authorized by the warrant and the incriminating evidence located therein was lawfully discovered.
The decision of the Court of Appeals reversing the decision of the district court is affirmed, and the judgment of the district court is reversed. | [
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Rulon, C.J.:
The State of Kansas appeals the imposition of a substantial downward durational and dispositional departure sentence imposed upon defendant William N. Haney for his conviction for rape. We reverse and remand for further proceedings.
The defendant was charged with statutory rape of a 13-year-old girl, S.S., in violation of K.S.A. 2004 Supp. 21-3502(a)(2). The State, for some unknown reason, has failed to include a transcript of the trial within the record on appeal. Consequently, the underlying facts of the offense are rather vague. We are at a loss to understand what prompted the State not to furnish this court with a trial transcript.
On June 14, 2003, the victim was in the company of four young men, one of whom was Haney. Prior to the rape of the victim, the victim became so intoxicated that the young men believed she might have alcohol poisoning and began to drive her to the hospital. We understand, however, that the decision was made not to admit the victim into the hospital, and the group returned to the apartment of a codefendant, D.J., a 17-year-old. The victim was so intoxicated that the defendant carried the victim up the stairs to the apartment.
Inside the apartment, the defendant took off the victim’s clothes. The four young men requested to have sex with the 13-year-old victim. As we understand the facts, the victim stated she did not specifically agree to have sex, but she requested the young men use a condom if they were going to have sex with her. Each of the four young men engaged in sexual intercourse with the victim. D.J. had sex with the 13-year-old victim twice.
The codefendants were prosecuted separately. D.J. was offered a plea agreement and was tried as a juvenile. Haney and at least one of the other codefendants were tried as adults. A juiy convicted Haney of statutoiy rape, and he eventually filed a motion for a downward durational and dispositional departure sentence. Haney contended a departure was warranted based upon the following factors: (1) he had no prior criminal history; (2) he was just over 18 years old; (3) he possessed no psychological attributes consistent with persistent sex offenders; (4) his judgment was impaired by attention deficit hyperactivity disorder (ADHD); (5) his judgment was impaired by a histoiy of head injuries; (6) his judgment was impaired by consumption of alcohol, which was the result of escalating alcohol abuse; (7) because of these mental obstacles, he was easily swayed by his peers; (8) he demonstrated remorse for his conduct; (9) there was no evidence of forced intercourse; (10) the relative age of the victim and her willing participation in the sexual intercourse; and (11) the Kansas Sentencing Guidelines Act (KSGA) purpose of promoting rehabilitation for nonviolent offenders.
After a hearing, the sentencing court granted the departure motion, ordering the defendant to serve a 60-month probation with an underlying sentence of 30 months. The presumptive guidelines sentence was 147 to 165 months. The reasons for the departure cited by the district court involved (a) the relative sentences of the codefendants in relation to each defendant’s relative culpability; (b) the degree of harm or loss associated with this particular crime; (c) the willing participation of the victim in the criminal conduct; and (d) the defendant’s receptiveness to rehabilitation.
The Departure Sentence
Under K.S.A. 21-4721(a), the State appeals the district court’s dispositional and durational downward sentencing departure. As we understand the facts, the defendant has violated the conditions of his probation and is currently incarcerated. Consequently, our consideration of the State’s appeal is limited to the basis and extent of the durational departure sentence.
When enacting the Kansas Sentencing Guidelines Act (KSGA), the legislature determined the presumptive sentence, indicated by the guidelines grid which was formulated according to the severity level of the crime of conviction and the criminal history score of the offender. This sentence should be imposed'by the sentencing court unless the court finds substantial and compelling reasons to depart. K.S.A. 2004 Supp. 21-4716(a); see State v. Murphy, 270 Kan. 804, 806, 19 P.3d 80 (2001).
When reviewing a sentencing departure, an appellate court must address two questions. First, are the district court’s articulated reasons for departing from the presumptive sentence supported by substantial competent evidence? Second, is each stated reason for a departure substantial and compelling as a matter of law? See Murphy, 270 Kan. at 806. In reviewing a sentencing departure, this court considers only those factors articulated by the district court at sentencing. See K.S.A. 2004 Supp. 21-4716(a); State v. Hawes, 22 Kan. App. 2d 837, 839, 923 P.2d 1064 (1996) (citing State v. Gideon, 257 Kan. 591, Syl. ¶ 21, 894 P.2d 850 [1995]). Each factor cited by the district court does not need to provide a substantial and compelling basis to depart so long as one or more constitutes such a basis for departure. See State v. Minor, 268 Kan. 292, 311, 997 P.2d 648 (2000).
Although Haney claims the sentencing court relied upon at least 11 factors to support a downward departure in this case, in some instances he confuses departure factors with the evidence used to support such factors. Many of the defendant’s so-called departure factors involve factual allegations which essentially support a single departure factor.
(a) comparison of codefendants
In sentencing Haney, the district court placed considerable weight upon the apparent disparity between the sole juvenile codefendant’s sentence and the presumptive sentence for Haney’s conviction, in light of each codefendant’s relative culpability. The court noted the juvenile codefendant was nearly 18 years old and the primary instigator of the events culminating in the sexual intercourse with the 13-year-old victim by each of the young men. The juvenile codefendant had provided the alcohol to tire victim and had engaged in two separate acts of intercourse with the victim. Yet, while the 18-year-old codefendants were tried as adults, the juvenile codefendant was offered a plea agreement in which the State dismissed one rape charge and the charge of furnishing alcohol to a minor. The State tried D.J. as a juvenile, and the juvenile court imposed a sanction of 30 months in a juvenile detention facility.
Relying upon State v. Bailey, 251 Kan. 527, 834 P.2d 1353 (1992); State v. Goering, 225 Kan. 755, 594 P.2d 194 (1979); and Cochrane v. State, 4 Kan. App. 2d 721, 610 P.2d 649 (1980), the district court reasoned that the relative culpability of the codefendants and the juvenile codefendant’s lesser sentence provided a substantial and compelling basis to depart from the presumptive sentence when sentencing Haney.
In attempting to review the district court’s factual findings for substantial competent evidence, this court is severely hampered by the woefully inadequate record on appeal. While there is nothing within this record to support the sentencing court’s findings, neither is there contrary evidence. The sentencing court specifically stated that it had considered the trial evidence and statements made during the sentencing hearings, along with the pleadings, motions, and letters filed in the case, before ruling on Haney’s departure motion. Because the State is now complaining of the sentencing court’s action, the State bears the burden of providing this court with a record sufficient to establish reversible error. The State may not fail to include a substantial part of the record and then claim that the district court’s findings are unsupported. Without an adequate record, this court must presume that the district court’s findings are properly supported. See Rule 3.03(a) (2004 Kan. Ct. R. Annot. 22); State v. Lumley, 25 Kan. App. 2d 366, 371, 963 P.2d 1238, aff'd 267 Kan. 4, 977 P.2d 914 (1999).
Presuming substantial competent evidence to support the district court’s findings, though, does not foreclose this court’s review of a sentencing departure. This court possesses unlimited review of a sentencing court’s reliance upon any given departure factor as a legally sufficient reason to depart from the presumptive sentence. See State v. Favela, 259 Kan. 215, 232-33, 911 P.2d 792 (1996). In addressing this question, we note that nonstatutoiy departure factors are subject to greater scrutiny than those factors enumerated within K.S.A. 2004 Supp. 21-4716(c)(l). See Murphy, 270 Kan. at 807.
The sentencing court perceived Haney s conduct to be less culpable than the conduct of the juvenile codefendant and, therefore, found Haney should not receive a sentence greater than the sentence imposed on the juvenile codefendant. (The district court presumably reasoned that the juvenile codefendant possessed greater culpability because he took the victim to his apartment, plied her with alcohol, and engaged in sexual intercourse with her on two separate occasions.)
Although K.S.A. 2004 Supp. 21-4716(c)(l)(B) permits a district court to consider an offender s lesser or passive role in the crime, we are convinced there is nothing passive about this Haney’s criminal conduct. Haney knew the victim was 13 years old; he knew the victim was intoxicated to the extent of potentially needing medical assistance; yet, Haney took advantage of the opportunity for his own sexual gratification. No one compelled Haney to engage in sex with an intoxicated 13-year-old. That unfortunate decision and, therefore, the responsibility belonged entirely to each individual codefendant who engaged in sexual intercourse with the victim. The juvenile codefendant is not culpable for the conduct for which Haney was charged and convicted.
Arguably, the only apparent motivating influence supporting the sentencing court’s comparison of the codefendants here is the disparity between tire sanction imposed on the juvenile codefendant and the presumptive sanction for each of the adult codefendants, who were admittedly no more culpable than the juvenile codefendant. The State’s flimsy response to the sentencing court’s reliance upon this disparity is a declaration that the prosecutors who handled each of the cases communicated with one another to ensure relative equality among the codefendants. This weak statement does nothing to cast doubt upon the sentencing court’s reasoning. Not only is this declaration not tied to any support within the record but, even if die assertion is accepted as true, it does not explain die obvious disparity in presumptive sentences and does not answer the pertinent question on appeal, which is whetiier such a sentencing disparity can form a substantial and compelling reason to depart from a presumptive sentence.
Lack of equity in sentencing among codefendants is not a mitigating factor listed in K.S.A. 2004 Supp. 21-4716(c)(l) and is, therefore, subject to greater scrutiny. See Murphy, 270 Kan. at 807. In Bailey, our Supreme Court held:
“[T]he trial judge is not bound to sentence the defendant in [a] case to the same or a lesser sentence than that given his [or her] codefendant. The trial court, however, must consider the sentence given the codefendant and, if a longer sentence is given, the reason for doing so should be set forth on the record.” 251 Kan. at 531.
While this statement may provide some meager support for the district court’s reasoning, Bailey is distinguishable from the present case on at least two material points. First, Bailey involved indeterminate sentencing before the enactment of the KSGA. Second, the defendants in Bailey were both adults. Here, the district court attempted to reconcile the sentence imposed upon a juvenile with that imposed upon an adult.
One of the motivating considerations for the enactment of the KSGA was to impose similar sanctions upon similarly situated defendants. This objective was implemented by imposing presumptive guidelines sentences based upon a criminal defendant’s criminal history score and the severity level of the crime committed. The legislature further provided that a sentencing court could deviate from the presumptive sentence only after noting substantial and compelling characteristics of the crime or the condition of the defendant which removed the offense from the normal crime of its type. See K.S.A. 2004 Supp. 21-4716(a). Because the legislature has taken into consideration equity in sentencing among similarly situated defendants in the guidelines sentencing grids, the persuasiveness of the preguidelines cases cited by the district court is diminished severely.
The relevance of the cases cited by the district court is diminished further by reason of the status of the codefendants involved in this case. The legislature has denominated a legal distinction between Haney and D.J., the juvenile offender. Because of his age, D.J. is legally classified as a juvenile, while Haney has passed his 18th birthday and is legally classified as an adult. In State v. Green, 218 Kan. 438, 442, 544 P.2d 356 (1975), our Supreme Court up held a juvenile classification based on age against constitutional attack on the basis of equal protection.
“No valid challenge can be made because the Kansas Legislature could, in the exercise of its wisdom, withhold the protection of the doctrine of parens patriae from all juveniles exceeding fifteen years of age. What the Legislature may do absolutely it may do conditionally, providing the conditions prescribed are applicable in like manner to every child in the class affected.” 218 Kan. at 442.
More recently, the United States Supreme Court tacitly approved the seemingly arbitrary line drawn between juveniles and adults at age 18 in holding that the application of capital punishment to juveniles (defined by the age of 18) violated the constitutional prohibition against cruel and unusual punishment. The Roper Court noted the cultural acceptance of 18-year-olds as adults and recognized that scientific and sociological studies have demonstrated a marked difference, generally, in the maturity, sense of responsibility, susceptibility to negative influences or social pressures, and lack of independent character between people under the age of 18 and those who are 18 years of age or older. See Roper v. Simmons, 543 U.S. 551, 569-70, 161 L. Ed. 2d 1, 125 S. Ct. 1183 (2005).
The delineation between juveniles and adults for purposes of prosecution and punishment is a public policy determination reserved to the legislative branch of government, except where constitutional principles apply. The Kansas Legislature has deemed it proper to hold persons under the age of 18 less accountable for their criminal conduct than those who have attained the age of 18. Consequently, the legislature has prescribed lesser penalties for those who commit serious offenses as juveniles. While the legislature has provided the means to treat specified juvenile offenders as adults for purposes of prosecution and punishment, the legislature has not similarly chosen to provide for treatment of certain adults as juveniles. See K.S.A. 38-1636. Because the legislature has not deemed appropriate the consideration of adults as juveniles for purposes of prosecution and sentencing, the sentencing court’s attempt to circumvent the legislature’s policy decisions by so regarding the adult codefendants’ offenses is inappropriate. See State v. Heath, 21 Kan. App. 2d 410, 418, 901 P.2d 29 (1995) (holding that disagreement with the classification of a crime by the legislature is not a substantial and compelling reason to depart from the presumptive sentence).
However, in Roper, the United States Supreme Court did recognize that “[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18.” 543 U.S. at 574. The Kansas Legislature has likewise recognized that some adult defendants do not possess a normal capa city to reason, which should be considered as mitigation in sentencing, even though such diminished capacity does not provide a defense to the crime of conviction. See K.S.A. 2004 Supp. 21-4716(c)(l)(C). Similarly, our Supreme Court has expanded tire scope of this mitigating factor to include a criminal defendant’s immaturity and impaired judgment due to age. See Favela, 259 Kan. at 237-38. Consequently, to the extent that the sentencing court relied upon this defendant’s relative age, immaturity, or impaired judgment to justify a departure, the court’s reasoning would provide a substantial and compelling reason to depart from the presumptive guidelines sentence.
The problem here, however, is that any proper consideration of Haney’s age, immaturity, or impaired judgment was inextricably involved with the impermissible consideration of the juvenile codefendant’s sentence. The district court should have considered Haney’s diminished capacity, if any, only to the extent of his relative age, immaturity, and impaired judgment as distinguished from the average adult offender.
In this case, the sentencing court was presented at sentencing with the testimony of Haney’s psychologist, who opined that Haney’s history of head injuries, abuse of alcohol, and attention deficit hyperactivity disorder impaired Ins judgment significantly when faced with corruptive social influences, as in this case. But, the sentencing court did not utilize these factors to compare Haney’s conduct with the conduct of the average adult who commits statutory rape to establish Haney’s diminished capacity as a basis for departing. Rather, the sentencing court based its sentencing determination solely upon Haney’s age relative to the age of the juvenile codefendant to compare the presumptive sentence for Ha ney with the sentence imposed upon the juvenile codefendant. This was error.
(b) degree of harm or loss
The sentencing court further based Haney’s downward departure sentence on a finding that the degree of harm or loss to the 13-year-old victim as a result of the sexual intercourse with Haney was less than statutory rape typically causes. In particular, the court noted the relative ages of the victim and the defendant and the absence of physical force or harm in the perpetration of the act.
While the age of a criminal defendant may be considered in relation to his or her ability to make good judgments, see Murphy, 270 Kan. at 807; Favela, 259 Kan. at 235, there are no Kansas cases holding the relative age of a child victim may be a mitigating factor. To the extent that a young adult exercises poor judgment due to his or her young age and lack of experience, an even younger victim cannot be expected to exercise greater judgment. Indeed, with respect to children under the age of 14, society presumes the child cannot exercise any judgment regarding consent to sexual activity. The legislature has consistently promulgated this public policy throughout the criminal statutes proscribing sex offenses. See K.S.A. 2004 Supp. 21-3502(a)(2) (rape); K.S.A. 21-3504(a)(l) (aggravated indecent liberties with a child); K.S.A. 21-3506(a)(l) and (a)(2) (aggravated criminal sodomy); K.S.A. 21-3511 (aggravated indecent solicitation of a child); K.S.A. 2004 Supp. 21-3522 (unlawful voluntary sexual relations).
In relying upon the relative ages of the victim and Haney, the sentencing court implies the harm to the victim is not as great because there is less disparity in age. This reasoning is totally flawed. A 13-year-old victim is no more capable of consenting, legally, to sexual activity with an 18-year-old than with a person who is 25 or 40. Furthermore, the trauma to the underage victim is potentially as great.
To the extent sexual activity is encouraged by an underage victim, the legislature has provided for mitigation. See K.S.A. 2004 Supp. 21-4716(c)(l)(A). Likewise, the legislature and the courts have considered the relative immaturity of an offender in providing for mitigation. See K.S.A. 2004 Supp. 21~4716(c)(l)(C); Favela, 259 Kan. at 237-38. Any other reliance upon the relative ages of a victim and a defendant is improper and does not form a substantial and compelling basis to depart from a presumptive sentence.
As support for this mitigating factor, tire district court was substantially influenced by the sanction imposed for unlawful voluntary sexual relations, K.S.A. 2004 Supp. 21-3522(a)(l). The commission of that offense, defined as voluntary sexual intercourse between a boy or girl who is between 14 and 16 years of age and a member of tire opposite sex who is under the age of 19 and less than 4 years older than the victim, is a severity level 8 felony. The sentencing court reasoned that, if the victim in this case had been 9 months older at the time of the offense, Haney would be facing a presumptive sentence of 7-9 months.
Under the district court’s reasoning, if the victim had been 9 months older, she could have legally consented to the sexual intercourse, and the defendants could not have been convicted of rape. Using the same reasoning, Haney would have been guilty of, at least, aggravated indecent liberties with a child, a severity level 3 felony. See K.S.A. 21-3504(a)(l). Haney was just over 5 months from his 19th birthday on the date of the offense. If he were 9 months older, he would be 19 years old and could not qualify for the protection of K.S.A. 2004 Supp. 21-3522(a)(l). Moreover, the difference in age between Haney and the victim is more than 4 years, which would further disqualify him from the protection of K.S.A. 2004 Supp. 21-3522(a)(l).
As a result, the district court’s finding that the harm or loss occasioned by the rape in this case was less significant than a typical rape of its land because of the relative ages of the victim and the defendant was improper. Such a comparison cannot form a substantial and compelling reason to depart from tire presumptive sentence established for statutory rape.
Similarly, the lack of evidence of physical force or trauma in the commission of the rape does not support a finding that the harm or loss in this case was less significant than typically occasioned by this offense. Even in rape cases in which consent is an issue, the victim does not need to demonstrate physical harm or force to demonstrate an absence of consent. In any rape case, the emotional and psychological trauma to the victim justifies a severe penalty.
The sentencing court made no finding about the emotional and psychological trauma to the victim caused by Haney s actions. Instead, the sentencing court found that statutory rape may encompass a wide range of trauma and harm. In Minor, the State appealed a downward sentencing departure in which the district court had relied, in part, upon the supposed lack of harm or loss to the victim of aggravated criminal sodomy as a mitigating factor. Our Supreme Court held it was improper to depart from a presumptive sentence on this basis when the record was silent about what harm constitutes the typical harm or loss for this particular type of offense and there was no showing how the facts in the case made the harm less significant than in the normal case. 268 Kan. at 312.
The reasoning in Minor controls this case as well. There is nothing within the record, other than the sentencing court’s conclusory comments, to indicate the harm suffered by this particular victim was less significant than the harm normally associated with statutory rape. As in Minor, we disapprove the sentencing court’s use of this departure factor.
(c) participation of the victim
The sentencing court further relied upon the victim’s role in the events leading up to the statutory rape as support for the departure from the presumptive sentence. Specifically, the sentencing court noted that the victim was an experienced drinker (despite her age); the alcohol had not been furnished by Haney; there were no threats, force, or weapons involved in Haney’s conduct; and the victim requested Haney to wear a condom before engaging in sex with her. The sentencing court found further evidence at trial proved the victim’s complicity in sex with Haney, without further elucidation. Without a copy of the trial transcript in this record on appeal, this court cannot review the evidence supporting the district court’s determination. Furthermore, in State v. Rush, 24 Kan. App. 2d 113, 942 P.2d 55, rev. denied 262 Kan. 968 (1997), this court held that a victim’s active participation in sexual conduct is not a defense to statutory rape.
Nevertheless, in Rush the sentencing court was presented with the victim’s statement that the challenged incident was the victim’s fault because she desired a relationship with the defendant and initiated the sexual intercourse for which the defendant was convicted of statutory rape. 24 Kan. App. 2d at 113-14. Relying upon an Idaho case, this court concluded the aggressive conduct of a victim leading to sexual intercourse is a substantial and compelling reason to depart from a presumptive sentence for statutory rape. 24 Kan. App. 2d at 116.
This case may be distinguished from Rush. Here, there is no evidence before this court the victim admitted that she solicited the sexual contact with Haney. The only evidence presented in this appeal indicates the contrary. Furthermore, the sentencing court’s reliance upon some facts does not logically support a finding the victim was a voluntary participant in this crime. The victim’s experience or inexperience with alcohol is irrelevant to determining her voluntary participation in sexual activity when the record indicates that she was clearly intoxicated at the time of, or shortly before, the offense. Likewise, the fact Haney did not furnish the alcohol consumed by the 13-year-old victim does not logically prove he did not take advantage of the victim in her intoxicated condition. The fact there is no evidence of threats, force, or weapons in the commission of the crime is relevant, but the relevance is obscured in light of the victim’s totally intoxicated condition.
Nevertheless, in Minor several witnesses at trial presented conflicting testimony concerning the voluntariness of the victim’s participation in the aggravated criminal sodomy at issue there. While the victim in Minor testified she was an unwilling participant, other testimony indicated the victim initiated the sexual activity. Our Supreme Court specifically approved the sentencing court’s resolution of this conflicting testimony at sentencing when the court found the victim had willingly initiated the sexual contact. Because victim participation is a mitigating departure factor listed in K.S.A. 2004 Supp. 21-4716(c)(l)(A), the Minor court concluded the sen- tenting court properly imposed a sentencing departure. 268 Kan. at 311.
The record in this case, as thin as it is, contains evidence supporting conflicting interpretations of the victim’s participation in the sexual activity for which Haney was convicted of statutory rape. According to the sentencing transcript, alone, there was evidence that the victim was heavily intoxicated. But, there was evidence the victim was cognizant enough of Haney s intentions to request his use of a condom. In the absence of any threats or force used in the commission of the offense, such evidence arguably demonstrates the victim’s willingness to engage in sexual intercourse with Haney.
Without the possibility of reviewing the trial testimony here, this court cannot state that the district court’s resolution of the conflicting evidence is not supported by substantial competent evidence. See Lumley, 25 Kan. App. 2d at 371. Consequently, there was no error in the district court’s reliance upon this statutory factor in granting Haney’s motion for a downward sentencing departure.
(d) guidelines policy considerations
The sentencing court found Haney’s offense was context-specific; his judgment was eroded by his age, immaturity, and ADHD; and his background and psychological profile demonstrated that he was unlikely to pose a future threat to society. As such, after considering several of the policy rationales of the KSGA, the sentencing court found a departure was warranted.
When presented with a sentencing departure motion, a sentencing court should consider the purposes and principles under which the KSGA was enacted, including (1) the belief that prison space should be reserved for serious or violent offenders; (2) the understanding the extent of sanction for criminal conduct should be based upon the harm inflicted; (3) the desire to create uniformity in the sanctions imposed, irrespective of socioeconomic, racial, or geographic factors; (4) the need for clarity in potential sanctions for specified conduct; (5) the desire to protect the public from serious offenders; (6) the goal of rehabilitation; and (7) the need to allocate public resources efficiently and wisely. See Favela, 259 Kan. at 233.
While a particular defendant’s amenability to rehabilitation is not a substantial and compelling reason to depart from the presumptive guidelines sentence by itself, a sentencing court may properly consider such evidence in the totality of the circumstances in determining the appropriate penalty to be imposed for a particular offense if other factors warrant departure. See Murphy, 270 Kan. at 806-07. In State v. Grady, 258 Kan. 72, 87-88, 900 P.2d 227 (1995), our Supreme Court also approved the sentencing court’s consideration of the defendant’s lack of a criminal history as evidence of a lack of predisposition to commit future crimes.
Based upon the testimony of Haney’s psychologist, we cannot conclude the sentencing court’s consideration of Haney’s likelihood to reoffend was erroneous. Evidence of a nonviolent commission of a crime and a defendant’s receptiveness to rehabilitation have previously been approved as considerations in sentencing. Therefore, although each of these considerations, by itself, was insufficient to justify a departure, the sentencing court appropriately considered such in the totality of the circumstances. See Murphy, 270 Kan. at 806-07.
Extent of the Departure
Based upon the findings regarding the voluntaxy participation of the victim and the defendant’s lack of criminal history and amenability to rehabilitation, the sentencing court acted within its authority in granting a downward durational sentencing departure. See Minor, 268 Kan. at 311 (citing State v. Zuck, 21 Kan. App. 2d 597, 603-04, 904 P.2d 1005, rev. denied 258 Kan. 863 [1995]). In addition, the sentencing court could properly weigh the context-specific nature of the offense, Haney’s risk to society, and his receptiveness to rehabilitation within the totality of the circumstances in deciding the extent of the departure.
However, the extent of a sentencing departure is also subject to review by this court. “Under an abuse of discretion standard of review, the question is if the extent of the sentencing court’s durational departure is consistent with the ‘enacted purposes and prin ciples of [the] sentencing guidelines’ and proportionate to the severity of the crime of conviction and the offender s criminal history.’ ” Favela, 259 Kan. at 244 (quoting K.S.A. 1994 Supp. 21-4719[b][l]).
An abuse of discretion standard of review is highly deferential to the sentencing court. In order to justify a reversal, the appellate court must be prepared to declare that the sentencing court’s decision was so arbitrary, fanciful, or unreasonable that no reasonable person in the position of the court would have reached a similar decision. See State v. Young, 277 Kan. 588, 597, 87 P.3d 308 (2004).
Here, the sentencing court departed significantly from a standard presumptive sentence of 155 months, down to 30 months. The underlying sentence imposed upon Haney is approximately equivalent to a severity level 5 person felony, as defined by the KSGA in 2002. See K.S.A. 2002 Supp. 21-4704. Offenses carrying similar penalties when committed by persons with similar criminal histories include indecent liberties with a child, K.S.A. 21-3503; sexual exploitation of a child, K.S.A. 2004 Supp. 21-3516; and aggravated sexual battery, K.S.A. 21-3518.
In Favela, our Supreme Court reviewed the extent of a departure in an attempted murder case. The sentencing court had reduced the presumptive attempted murder sentence of 51 to 59 months to 14 months, the equivalent of a sentence for aggravated assault. 259 Kan. at 244. In affirming the extent of the departure, the Favela court rejected the State’s argument that no reasonable person would impose a sentence for aggravated assault for a conviction of attempted murder.
At first glance, Favela arguably controls here. However, Favela is distinguishable. Favela had witnessed his brother being stabbed by Willard LaGrange. After taking his brother to the hospital, Favela returned to the scene of the stabbing and brandished a gun, threatening to kill LaGrange. However, Favela did not specifically point his gun at any person. Eventually, Favela surrendered to the police without firing a shot. 259 Kan. at 216-17. In essence, the crime completed by Favela was equivalent to aggravated assault, even though his actions also supported a conviction for attempted murder. Under these circumstances and after considering the mitigating factors in favor of departing from the presumptive sentence, our Supreme Court concluded it was reasonable to reduce Favela’s sentence to the equivalent of aggravated assault.
In contrast, Haney was not charged with and convicted of an attempted crime. Based upon the victim’s voluntary participation, the defendant would still have been guilty of committing aggravated indecent liberties with a child, if the victim had legally been capable of consenting to sexual intercourse. Such an offense is a severity level 3 person felony, which in June 2003 carried a presumptive prison sentence of 55-59-61 months. See K.S.A. 21-3504(a)(1); K.S.A. 2002 Supp. 21-4704. Yet, here, the sentencing court departed even further.
While there are mitigating considerations, including tire low probability Haney would repeat a similar offense in tire future and his receptiveness to rehabilitation, a downward sentencing departure to the equivalent of a level 5 person felony is disproportionate to the severity of the crime committed in this case (even considering the voluntary participation of the victim). We conclude no reasonable person would have departed from the presumptive sentence to such an extent when considering only the valid departure factors stated herein. Consequently, the departure was., excessive under the factual circumstances presented here. This durational departure constituted an abuse of judicial discretion. The sentence is vacated and the case remanded for resentencing proportionate to the act committed.
Partiality? Prejudice, Oppression, or Corrupt Motive
The State further contends the sentencing court’s departure sentence was improperly motivated by partiality, prejudice, oppression, or corrupt motive. The State’s brief on this issue is entirely conclusory. An issue raised but not argued is generally deemed abandoned. See State v. Hunt, 275 Kan. 811, 821, 69 P.3d 571 (2003).
In State v. Sampsel, 268 Kan. 264, 997 P.2d 664 (2000), our Supreme Court considered a similar claim for improper motive behind a substantial downward departure in a statutory rape case. During the trial, evidence was presented that the victim was actively involved in promoting the sexual conduct of the defendant. 268 Kan. at 274.
The Sampsel court admonished the sentencing court for improper comments but refused to declare such comments were indicative of an improper motive or partiality in sentencing. 268 Kan. at 283. If the sentencing court’s comments in Sampsel cannot be regarded as evidence of prejudice or partiality, there is nothing within this case to support such a conclusion. As a result, this issue must fail.
We vacate the sentence and remand to the district court for resentencing proportionate to the severity of the offense committed. | [
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Denied.
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Denied.
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Denied.
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The opinion of the court was delivered by
Johnson, J.:
The State of Kansas appeals the district courts dismissal of criminal charges against Promise Delon Redmond for failing to register as a sex offender, as required by the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. The district court determined that Redmond had completed his registration requirements at the time of the alleged crimes because the 2011 amendments to KORA could not be retroactively applied to Redmond without violating the Ex Post Facto Clause of the United States Constitution.
Pursuant to K.S.A. 20-3018(c), we transferred the case from the Court of Appeals and decide it the same day as two related cases, Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (2016), and State v. Buser, 304 Kan. 181, 371 P.3d 886 (2016). Consistent with our holdings in those companion cases, we determine that KORA’s statutory scheme after the 2011 amendments was so punitive in effect as to negate tire implied legislative intent to deem it civil, so that the Ex Post Facto Clause precludes its application to any sex offender who committed the qualifying crime prior to July 1,2011. Accordingly, we affirm the district court.
Factual and Procedural Overview
On December 13, 2001, Redmond pled no contest to one count of indecent solicitation of a child 14 to 15 years old, then a severity level 7, person felony. See K.S.A. 21-3510 (Furse 1995). Redmond was sentenced to a term of 13 months’ imprisonment, but the district court suspended his sentence and placed Redmond on probation for 24 months. The district court also found that Redmond was required to register as a sex offender.
Under the 2001 version of KORA, Redmond was required to register for 10 years “from the date of conviction.” K.S.A. 2001 Supp. 22-4906(a)-(b). Accordingly, prior to the 2011 amendments, Redmond’s registration term would have expired on December 13, 2011. Under tire 2011 amendments, Redmond’s crime of conviction requires registration for 25 years, which would make his term of registration expire in 2026. K.S.A. 2011 Supp. 22-4906(b)(l)(B).
On November 6, 2012, tire State charged Redmond with three counts of violating KORA. Each count alleged Redmond failed to report in person: the first failure to report on or about September 1, 2012; the second failure to report on or about March 1, 2012; and the third failure to report on or about June 1, 2012. All three dates were outside the original 10-year registration period.
Redmond filed three motions to dismiss, two of which raised procedural due process issues that are not involved in this appeal. The motion to dismiss at issue here raised the question of whether the charges against Redmond violated the constitutional prohibition against ex post facto laws. The State responded to the motions, Redmond filed a notice of additional authority, and then the parties requested leave to submit the motion on their briefs. Thereafter, the district court granted Redmonds motion to dismiss on ex post facto grounds and declared the other motions to be moot. The State timely appealed to the Court of Appeals, and this court transferred the appeal.
Retroactive Application of KORA 2011 Amendments
The 2011 version of KORAs statutory scheme stated that it applied to any person who was convicted of any sexually violent crime on or after April 14, 1994. See K.S.A. 2011 Supp. 22-4902(b) (defining “sex offender”)- Indecent solicitation of a child is statutorily designated as a “sexually violent crime.” K.S.A. 2011 Supp. 22-4902(c)(6). Accordingly, Redmond’s 2001 conviction purportedly made him subject to the additional and enhanced provisions of the 2011 statutory scheme, including the increased time period from 10 years to 25 years for first-time offenders.
But legislative acts must comport with our federal and state constitutions, and Article I, § 10, of the United States Constitution provides, in relevant part, that “[n]o State shall . . . pass any ... ex post facto Law.” One category of ex post facto laws is “ ‘ “any statute . . . which makes more burdensome the punishment for a crime, after its commission.’”” State v. Todd, 299 Kan. 263, 277, 323 P.3d 829 (2014) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 70 L. Ed. 2d 216 [1925]). Yet, “[t]he constitutional prohibition on ex post facto laws applies only to penal statutes.” State v. Myers, 260 Kan. 669, 677, 923 P.2d 1024 (1996). So the question becomes whether KORA is punitive.
The district court determined that the amended statutory scheme was “uniquely punitive” for Redmond and that the subsequently added burdens placed upon Redmond for a previously committed crime violated the Ex Post Facto Clause.
Standard of Review
The district court relied on constitutional grounds to find that the 2011 version of KORA could not be applied to Redmond. “When the application of a statute is challenged on constitutional grounds, this court exercises an unlimited, de novo standard of review. State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996).” State v. Cook, 286 Kan. 766, 768, 187 P.3d 1283 (2008).
Analysis
In reaching its decision, the district court applied the analytical framework from this court’s prior decision in Myers and the United States Supreme Court’s prior decision in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). That framework is inferred to as an “intent-effects” test. See, e.g., Moore v. Avoyelles Correctional Center, 253 F.3d 870, 872 (5th Cir. 2001).
Under the intent-effects test, a court must first determine legislative intent. “If the intention of the legislature was to impose punishment, that ends the inquiry.” Smith, 538 U.S. at 92. The statute is penal and cannot be applied retroactively.
Rut if the legislatures intention was to enact “a regulatory scheme that is civil and nonpunitive,” the court must then “examine whether the statutory scheme is “ ‘so punitive either in purpose or effect as to negate [the State’s] intention” to deem it “civil.” Smith, 538 U.S. at 92 (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 138 L. Ed. 2d 501 [1997]). For the effects part of the test, the court utilizes the factors identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 544, 9 L. Ed. 2d 644 (1963) (Mendoza-Martinez factors), as “useful guideposts.” Smith, 538 U.S. at 97.
In determining legislative intent, the district court first noted that KORA does not contain an expressed statement of purpose. The district court then looked to Myers, which had held that the legislative history of the 1994 Kansas Sex Offender Registration Act (KSORA) suggested that die act served the nonpunitive purpose of public safety. 260 Kan. at 681. The district court then determined that the Kansas Legislature also “likely meant” to enact KORA as a “civil, regulatoiy scheme,” and proceeded to the “effects” portion of the test. In Doe v. Thompson, 304 Kan. at 316-17, we observed that we had not been pointed to any subsequent legislative history for KORA that would contradict Myers’ determination of the non-punitive legislative intent for KSORA. In like fashion, we affirm the district courts holding below that the legislative intent of KORA was nonpunitive.
For the “effects” analysis, the district court was guided by the Mendoza-Martinez factors, which it recited from Myers, as follows:
“‘[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment — retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.’ ” Myers, 260 Kan. at 681.
With respect to the first factor, the district court opined that the in-person reporting requirements and the registration fees assessed subjected KORA registrants to an affirmative disability or restraint. The court pointed out that a person who fives, works, and attends school in different counties would have to report in person 12 times a year, which resembled parole or probation. The court found the reporting requirements imposed upon an offenders time and served as a physical restraint. Further, the court noted that the registration fees were a substantial cost to the registrant, adding up to between $2,000 and $6,000 over the course of the unalterable 25-year registration period. Moreover, that cost would be particularly burdensome if the offender suffered employment difficulties because of the notification provisions of KORA. The district court also pointed to other states which had found similar statutory schemes to work an affirmative disability or restraint on the offender.
With respect to the historical nature of the punishment, the district court found persuasive the analogy to the colonial punishment of shaming made by the Indiana court in Gonzales v. State, 980 N.E.2d 312, 318-19 (Ind. 2013). The district court also noted that Myers had quoted from Nathaniel Hawthornes The Scarlet Letter, indicating the historical aspect of treating public notification as punishment.
For the rest of the factors, the district court did not malee a detailed recitation on the record, referring on occasion to the defendants arguments. With respect to excessiveness, the district court appeared to find that the added requirements were particularly excessive and punitive when applied to Redmond.
What the district court did not clarify is that we are applying a federal constitutional provision, so that Kansas state courts are duty-bound to follow the decisions of the United States Supreme Court when interpreting the United States Constitution. See, e.g., Trinkle v. Hand, 184 Kan. 577, 579, 337 P.2d 665, cert. denied 361 U.S. 846 (1959) (Under Article VI of the United States Constitution, “the interpretation placed on the Constitution and laws of the United States by the decisions of the supreme court of tire United States is controlling upon state courts and must be followed.”).
Smith considered an Ex Post Facto Clause challenge to the Alaska Sex Offender Registration Act (ASORA), utilizing the intent-effects test. The Court found the intent of the Alaska Legislature was to enact a civil and nonpunitive law. Then, applying five of the Mendoza-Martinez factors, Smith determined that the offenders had failed to show “that the effects of the law negate Alaska’s intention to establish a civil regulatory scheme,” so that tire act was non-punitive and its retroactive application did not violate the Ex Post Facto Clause. 538 U.S. at 105-06. Accordingly, for us to find KORA punitive, we must find it factually distinct from ASORA.
In Thompson, which is filed this same date, we listed the significant differences between the 2011 KORA and the ASORA reviewed in Smith, some of which were mentioned by the district court. Those differences included the following: KORA applies to a broader group of offenders; KORA requires frequent in-person reporting regardless of whether registration information has changed since the last reporting; KORA requires a longer registration period for some first-time offenders; KORA requires additional registration information; KORA requires changed information to be reported in person within 3 days; KORA requires additional information to be disseminated to the public; KORA imposes potentially costly registration fees; KORA requires advance notice for travel outside the United States; KORA requires annual drivers license renewal and offenders subject to KORA must have a distinguishing number on their licenses; parents subject to KORA must disclose that status in any proceeding determining child custody, residency, and parenting time; and KORA imposes severe, person felony sanctions for violating any KORA provision. Thompson, 304 Kan. at 317-20.
Then, we reviewed the factually distinct KORA, as amended in 2011, in light of the Mendoza-Martinez factors, in the manner employed by Smith, albeit with a different end result. We first determined that the statutory scheme resembled traditional forms of punishment by being akin to public shaming and by replicating the circumstance of being on probation or parole. Thompson, 304 Kan. at 322. The latter circumstance also imposed an affirmative disability or restraint on the offender, as did the difficulties in obtaining employment and housing caused by KORA. Moreover, the financial obligations were punitive in effect, when viewed from an offenders perspective. 304 Kan. at 324. Next, we determined that the current KORA had a deterrent effect and was retributive in character, before opining that KORA was not rationally connected to the nonpunitive purpose of public safety. In other words, the statutory scheme is excessive in relation to its regulatory purpose. 304 Kan. at 327-28. Consequently, we determined that the 2011 version of KORA is punitive in effect and that the amended statutory scheme cannot be applied retroactively to any sex offender who committed the qualifying crime prior to July 1, 2011. 304 Kan. at 328.
Applying Thompsons holding to the facts before us, we find that Redmonds 10-year registration period could not be retroactively increased to 25 years; that Redmond had completed his registra tion requirements under the law in effect when he committed his crime by the dates of his alleged failure to report; and that, without a statutory duty to report, Redmond could not be prosecuted for failing to report. Consequently, the district court’s dismissal of the charges against Redmond is affirmed.
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Denied.
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Denied.
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Denied.
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Granted.
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Denied.
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Granted.
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Denied.
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Per Curiam:
This case requires us to determine whether the State has met its burden to show that recent legislation brings tire State’s K-12 public school funding system into compliance with Article 6 of the Kansas Constitution. We hold it has not.
On Februaiy 11, 2016, we affirmed the holding of the three-judge district court panel that found changes made to the States K-12 funding system through enactment of the Classroom Learning Assuring Student Success Act of 2015 (CLASS) violated the equity component of Article 6, § 6(b) of the Kansas Constitution. Gannon v. State, 303 Kan. 682, 746, 368 P.3d 1024 (2016) (Gannon II). Specifically, we determined the operation of capital outlay state aid and local option budget (LOB) supplemental general state aid, as formulated under CLASS, still allowed inequitable distribution of funding among school districts that we had held unconstitutional in Gannon v. State, 298 Kan. 1107, 319 P.3d 1196 (2014) (Gannon I). 303 Kan. at 729-33.
After affirming the panel’s decision, we stayed our mandate “to give the legislature a second, and substantial, opportunity to craft a constitutionally suitable solution and minimize the threat of disruptions in funding for education.” Gannon II, 303 Kan. at 741. In April 2016, lawmakers responded by passing Senate Substitute for House Bill No. 2655 (H.B. 2655). See L. 2016, ch. 45.
H.B. 2655 restores the prior formula for capital outlay state aid we identified as a permissible cure for the inequities found in that funding mechanism. Gannon II, 303 Kan. at 710-11. But the new law, for the first time, also applies the same capital outlay aid formula to LOB supplemental general state aid. L. 2016, ch. 45, sec. 3. As conceded by the State, application of the capital outlay aid formula to LOB funding results in significant reductions in overall supplemental general state aid to the vast majority of school districts.
Because of this result, the new law includes a “hold harmless” provision creating a new “equalization aid” entitlement for the 2016-17 school year. L. 2016, ch. 45, sec. 1(a). Specifically, the law authorizes such equalization aid — to those districts receiving re duced funding under the new bill — in an amount equal to their loss. L. 2016, ch. 45, sec. 5. The new law also moves from the State Finance Council to tire Kansas State Board of Education (State Board) an “extraordinary need fund” of approximately $15 million and permits the State Boards disbursement of those funds to further decrease disparity among the districts. L. 2016, ch. 45, secs. 1(e), 9.
We ordered both parties to brief whether the legislative action— H.B. 2655 — remedied the inequities that Gannon II affirmed to exist in CLASS. Additionally, the parties were directed to discuss the proper judicial remedy if we ruled the new law failed to comply with our Gannon II decision.
In this remedial stage, the State asserts: (1) H.B. 2655 cures the inequities found in the capital outlay state aid by restoring and fully funding the capital ouday aid formula we previously held constitutional; (2) H.B. 2655 cures the inequities found in the LOB funding by applying the same capital outlay aid formula to supplemental general state aid. It additionally argues any remaining inequities in the LOB funding system are cured through operation of the hold harmless provision and extraordinary need fund; and (3) If H.B. 2655 fails to cure the inequities we found in CLASS, the proper remedy is severing the offending provisions and allowing the remainder of CLASS to operate throughout the 2016-17 school year.
Plaintiffs do not contest the State’s first argument. They do, however, assert that H.B. 2655 worsens, rather than cures, the inequities in LOB funding affirmed to exist in Gannon II. They further argue that we should not sever any offending provisions but hold the entirety of H.B. 2655 unconstitutional, lift our stay of the panel’s extensive remedial orders, and grant them attorney fees.
After careful consideration of the legislative record and arguments from both sides, we hold the following:
1. H.B. 2655 cures the capital outlay inequities affirmed to exist in Gannon II.
2. H.B. 2655, which includes tire hold harmless and extraordinary need provisions, fails to cure the LOB inequities affirmed to exist in Gannon II.
3. The unconstitutional LOB funding mechanism is not severable from CLASS, tire general statutory scheme for K-12 public school finance, thus making CLASS unconstitutional.
4. The panels remedial orders remain stayed, and jurisdiction of this case is retained by tins court.
5. The plaintiffs are not entitled to attorney fees.
Each of these holdings will be explained below.
Facts
The procedural and factual history of this case was extensively outlined in both Gannon I and Gannon II. See Gannon I, 298 Kan. at 1112-18; Gannon II, 303 Kan. at 686-98. Accordingly, we limit this section only to those facts necessary to our holding.
The School District Finance and Quality Performance Act (SDFQPA), K.S.A. 72-6405 et seq., was tire comprehensive statutory plan for K-12 public school finance in Kansas at the outset of the underlying lawsuit filed in 2010. See Gannon II, 303 Kan. at 686. The basic source of funding within the SDFQPA was provided by tire State through “general state aid” entitlements funded by a required 20-mill levy for each district. K.S.A. 2014 Supp. 72-6431. Each districts general state aid was calculated by multiplying a dollar amount known as “base state aid per pupil” (BSAPP) by the districts population of enrolled students. K.S.A. 2014 Supp. 72-6410. Full-time enrollment was weighted by factors recognized to increase the cost of education per pupil, e.g., number of special needs students. K.S.A. 2014 Supp. 72-6407; K.S.A. 2014 Supp. 72-6410.
In addition to this basic payment, the legislature allowed districts “local effort” revenue-raising authority to fund capital outlay expenditures and an LOB. K.S.A. 2014 Supp. 72-8801; K.S.A. 2014 Supp. 72-6433. In general, both were funded through optional additional mill levies on property in the district. See Gannon II, 303 Kan. at 687-88. The legislature capped the additional levies for capital outlay expenses at 8 mills per district, while the revenues produced by the additional LOB mill levy could not exceed an amount equal to a set percentage — currently 33%, historically as low as 25% — of a districts general state aid. K.S.A. 2014 Supp. 72-8801; K.S.A. 2014 Supp. 72-6433. Districts could use capital outlay funds only for limited purposes, e.g., improvements such as building construction and maintenance, equipment purchases, and other authorized investments. K.S.A. 2014 Supp. 72-8804. On the other hand, LOR funds had few restrictions and districts could use them to supplement their general state aid. K.S.A. 2014 Supp. 72-6433.
Because of the dissimilarities among the overall property values of the 286 school districts, these local revenue-raising programs created inequities in the amount of funds districts could generate and the tax effort required to do so. A district with high property value, for example, implementing the maximum 8-mill levy, generated more capital outlay funds than a property-poor district doing the same. Similarly, a property-wealthy district fully funding a 15% LOB could do so with less tax effort, i.e., a lower mill levy, than a district with lower property values. See Gannon I, 298 Kan. at 1175-88.
To remove these disparities, the legislature implemented programs through SDFQPA intended to equalize property-poor districts’ local revenue-raising authority. The State Board calculated an assessed valuation per pupil (AVPP) for each district in the State by dividing the total assessed property value of a district by its schools’ enrollment population. The State Board ranked all the districts by their AVPP — from low to high. K.S.A. 2014 Supp. 72-8814; K.S.A. 2014 Supp. 72-6434. This AVPP schedule was then utilized in two distinct formulas to calculate what was commonly called "equalization aid” for the capital outlay and LOB funding. See Gannon I, 298 Kan. at 1180, 1185.
For capital outlay, a “state aid percentage factor” for each district was established at 25%. This factor increased 1% for every $1,000 a district fell below the median AVPP with a cap of 100%, and decreased 1% for eveiy $1,000 it rose above the median. The resulting percentage factor was then multiplied by the district’s total capital outlay mill levy revenue, and the product was provided to the district as capital outlay state aid. K.S.A. 2014 Supp. 72-8814; Gannon I, 298 Kan. at 1176.
For the LOB, the State Board multiplied the amount of a district’s LOB-generated revenue by a ratio — obtained from dividing the district’s AVPP by the one located at the 81.2 percentile of die AVPP schedule and then subtracting the quotient from 1. The re- suiting product was provided to the district as supplemental general state aid. K.S.A. 2014 Supp. 72-6434; Gannon II, 303 Kan. at 720.
In 2010, the State began withholding capital outlay state aid. See 298 Kan. at 1177. In addition, supplemental general state aid was reduced from the amount required by its formula, which resulted in prorated payments. See 298 Kan. at 1183. Districts not qualifying for aid, or eligible only for a nominal amount, were unaffected by these reductions and were able to keep generating their same level of local revenue without added tax effort, i.e., without increased mill levies. See 298 Kan. at 1181, 1187-88.
In 2010 plaintiffs sued the State in Shawnee County District court, alleging K-12 public school funding in Kansas was unconstitutionally inadequate. The plaintiffs additionally claimed the system was unconstitutionally inequitable because reduction or elimination of state aid under the capital outlay and LOB funding mechanisms disproportionately affected the local revenue-raising ability of districts with a low AVPP, while districts with a higher AVPP saw little or no change in such ability. After a 16-day bench trial, the three-judge panel agreed with the plaintiffs and held tire changes to the school finance system violated Article 6, § 6(b) of the Kansas Constitution. See Kan. Const., art. 6, § 6(b) (“The legislature shall malee suitable provision for finance of the educational interests of the state.”).
On appeal, we confirmed Article 6, § 6(b) contains adequacy and equity components and outlined standards for both. Gannon I, 298 Kan. 1107. For adequacy, we adopted the seven-prong standard initially formulated by the Supreme Court of Kentucky in Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 212 (Ky. 1989), 298 Kan. at 1170, and later essentially codified in K.S.A. 2013 Supp. 72-1127(c). See 298 Kan. at 1165-67. For equity, we determined “[sjehool districts must have reasonably equal access to substantially similar educational opportunity through similar tax effort.” 298 Kan. at 1174.
We affirmed the panels ruling that found elimination of the capital outlay state aid and proration of supplemental general state aid created unfair, wealth-based — and unconstitutional — dispart ties among the districts. The case was remanded for the panel to reconsider the adequacy portion of its ruling under Rose, while the equity portion was returned for remedial action. 298 Kan. at 1111.
As guidance to the panel, we specified the State could cure the equity issue by fully funding the existing formulas for capital outlay state aid and supplemental general state aid. If the State chose to cure the issue with less than full funding, or by adopting other equalization techniques, the panel was instructed, to evaluate the curative action under the test set out in our opinion. 298 Kan. at 1198-99.
After the case returned to the panel, the 2015 legislature ultimately repealed the SDFQPA and replaced it with a new comprehensive public school funding system known as CLASS. K.S.A. 2015 Supp. 72-6463 et seq. The new law made substantial changes to the formulas used to calculate both capital outlay state aid and supplemental general state aid. Gannon II, 303 Kan. at 685.
For capital outlay state aid, the initial percentage factor began at 75% and decreased 1% for every $1,000 a district rose above the State Board’s lowest calculated AVPP. After application of this new formula, all eligible districts’ capital outlay state aid was reduced, and 28 districts lost eligibility altogether. See 303 Kan. at 712-15.
For supplemental general state aid, the legislature directed the State Board to organize aid-qualifying districts on its AVPP schedule into five equal quintiles from low AVPP to high. In other words, each quintile represented a 20% AVPP span. The SDFQPA formula for determining supplemental general state aid was then utilized. If the school district fell in the lowest quintile, it would receive 97% — not 100% — of the calculated aid. If it was in the second lowest quintile it would receive 95%, continuing to the third lowest receiving 92%, the fourth lowest receiving 82%, and the highest receiving 72%. In simplest terms, tíre legislature reduced the LOB aid (supplemental general state aid) of the poorest 20% of school districts by 3%, the next 20% by 5%, and so on until the wealthiest aid-receiving districts were reduced by 28%. See L. 2015, ch. 4, sec. 38; 303 Kan. at 721.
CLASS also disbursed base funding for school years 2015-16 and 2016-17 through a new “block grant” formula. The funding matched the amount equal to a districts total general state aid plus the capital outlay state aid and supplemental general state aid it previously received in school year 2014-15. K.S.A. 2015 Supp. 72-6465. Essentially the equalizing funds of the capital outlay and LOB funding systems were frozen at 2014-15 levels as calculated under the new formulas and then rolled into a 2-year block grant payment to the districts for school years 2015-16 and 2016-17. See 303 Kan. at 694.
The panel held that the changes made by CLASS continued to allow unconstitutional funding inequities to exist among the districts. Specifically the reduced LOB supplemental general state aid required the less-property-wealthy districts to increase their local mill levies to cover the loss of such aid. In comparison, tire wealthier non-aid-qualifying districts experienced no change in their local levy to stay at the same revenue level. Similarly the negative effects of the new capital outlay state aid formula were limited to aid-qualifying districts, while non-aid-qualifying districts remained unharmed. In addition to these holdings on equity the panel also held CLASS unconstitutionally inadequate. See Gannon II, 303 Kan. at 696.
On appeal in Gannon II, we bifurcated the equity and adequacy portions of the panels rulings and first examined equity. 303 Kan. at 689. We held the State failed to cure the inequities affirmed to exist in Gannon I for both capital outlay and LOB funding. 303 Kan. at 720, 726. Specifically we found the reduction in aid for both programs negatively affected the property-poor districts, while leaving property-rich districts unscathed. See 303 Kan. at 719, 726. In addition, because CLASS froze aid payments at 2014-15 levels but continued to allow districts to increase their capital outlay levies and LOB budgets, districts without a need for aid continued to have greater ability to raise additional local revenue than their less property-wealthy counterparts. See 303 Kan. at 729-32. We agreed with the panel that these changes worsened rather than cured K-12 funding inequities affirmed to exist in Gannon I. See 303 Kan. at 718-33.
Instead of remanding the case to the panel for it to begin implementing its broad remedial orders, we stayed the issuance of our mandate and retained jurisdiction over the appeal to give the legislature time to respond to our decision and enact a cure for the inequities found to exist in CLASS. 303 Kan. at 746. We advised the State that “[o]ne obvious way [it] could comply with Article 6 would be to revive the relevant portions of the previous school funding system and fully fund them within the current block grant system.” 303 Kan. at 743. We further counseled that if the State chose a different route, “any other funding system it enacts must be demonstrated to be capable of meeting the equity requirements of Article 6.” 303 Kan. at 743.
We cautioned:
“In short, if by the close of fiscal year 2016, ending June 30, the State is unable to satisfactorily demonstrate to this court that the legislature has complied with the will of the people as expressed in Article 6 of their constitution through additional remedial legislation or otherwise, then a lifting of tire stay of today’s mandate will mean no constitutionally valid school finance system exists through which funds for fiscal year 2017 can lawfully be raised, distributed, or spent.
“Without a constitutionally equitable school finance system, the schools in Kansas will be unable to operate beyond June 30.” 303 Kan. at 743-44.
The legislature passed H.B. 2655 in April 2016 in response to our decision and the bill was signed by the governor. Among other things, it makes major changes to the aid programs at issue in Gan-non II. Those changes and their effects are discussed in detail below.
Analysis
Issue 1: H.B. 2655 does not comply with the equity requirement of Article 6.
In response to our decision in Gannon 11, the State filed a “Notice of Legislative Cure” on April 7, 2016. Submitted with this notice was the legislative record, including documents and information made available to lawmakers during their deliberative process. In a similar situation 10 years ago, we recognized the submitted documents had “not been subjected to the fact-finding processes of litigation through which the parties were permitted to examine [their] validity and accuracy.” Montoy v. State, 282 Kan. 9, 21, 138 P.3d 755 (2006) (Montoy IV). But we considered such information as “part of the legislative histoiy” and used it in determining legislative intent, relevant to whether the cure complied with Article 6. 282 Kan. at 21-22; see Montoy v. State, 279 Kan. 817, 825, 112 P.3d 923 (2005) (Montoy III) (“[T]his courts retained jurisdiction allows a review to determine if there has been compliance with our opinion.”); see also Gannon II, 303 Kan. at 743 (“[T]he State would help its case by showing its work in how it determined that any. . . proposed solution complies with Gannon I”). We will consider the submitted documents for these purposes.
Burden of Proof
“ ‘[A], party asserting compliance with a court decision ordering remedial action bears the burden of establishing that compliance ....’” Gannon II, 303 Kan. at 709 (quoting Montoy III, 279 Kan. at 826). Although untested legislation normally enjoys a presumption of constitutionality, tire presumption no longer applies when the legislative action is in response to a court order. 303 Kan. at 708-09. Accordingly, “[t]he State has the express burden to show compliance.” 303 Kan. at 709.
Discussion
Equity Standard
In Gannon I we clarified the equity standard of Article 6, § 6(b) by stating: “School districts must have reasonably equal access to substantially similar educational opportunity through similar tax effort.” 298 Kan. at 1175. We have never required precise standards for equity compliance or applied a zero tolerance test. But we have “rejected legislation that increased or exacerbated inequities among districts . . . .” Gannon v. State, 303 Kan. 682, 709, 368 P.3d 1024 (2016) (Gannon II); see Gannon v. State, 298 Kan. 1107, 1110, 319 P.3d 1196 (2014) (Gannon I).
In our analysis, we do not dictate to the legislature how it should constitutionally fund K-12 public school education; we only review its efforts to ensure they do not run afoul of the Kansas Constitution. See Gannon II, 303 Kan. at 734-35 (“We . . . reaffirm!] the legislature’s power and duty to create a school funding system. . . . [W]e have also consistently affirmed our own power and duty to review legislative enactments for constitutional compliance . . . .”).
Our review of legislation includes an acknowledgment that a system of school finance allowing local revenue-raising authority, such as assessing LOB mill levies on properly within a school district, will almost certainly create wealth-based disparities among the districts. This reality, as confirmed in the numerous school finance cases litigated in our courts, has been the result of policy decisions made by the legislature. See Gannon I, 298 Kan. at 1173-74 (“ ‘legislat[ure’s] increase in the LOB cap exacerbates the wealth-based disparities between districts’ ”) (quoting Montoy III, 279 Kan. at 840).
Indeed, in recent years the legislature has shifted its emphasis from funding BSAPP with the 20-mill levy on all districts — as mandated by K.S.A. 2014 Supp. 72-6431 — to a greater reliance on district-elective LOB s. The LOB cap held steady at 25% from 1992 until 2005-06, but from then until CLASS’ passage in 2015, the LOB cap increased to 33%. Since 2005-06, BSAPP has effectively been reduced from $4,257 to $3,838. See, e.g., K.S.A. 2005 Supp. 72-6410; K.S.A. 2014 Supp. 72-6410; see also Gannon II, 303 Kan. at 691-92, 720, 731-33 (BSAPP decreased as the LOB cap increased). As Mark Tallman, Associate Executive Director for the Kansas Association of School Boards, described to the 2016 legislature, “[0]ne of the challenges we see is that the more local funding you allow, the greater your challenge is to equalize it because there is such a range of local sources.”
Accordingly, if local funding is to continue, this disparate effect has to be limited so it complies with Article 6. See Gannon I, 298 Kan. at 1174 (quoting Montoy III, 279 Kan. at 840). In sum, tire State may not allow children to receive disparate levels of educational opportunity on the basis of wealth, especially the property wealth of the district where they happen to live. See Gannon I, 298 Kan. at 1174 (“Education in Kansas is not restricted to that upper stratum of society able to afford it.”).
With these principles in mind we address the State’s arguments. H.B. 2655 cures the capital outlay inequities affinned to exist in Gannon II.
Section four of H.B. 2655 revives and fully implements the prior SDFQPA capital outlay state aid formula which we essentially had held constitutional for that purpose in Gannon I: “If. . . the legislature fully funds the capital outlay provision as contemplated in K.S.A. 2013 Supp. 72-8814, the panel need not take any additional action on this issue.” 298 Kan. at 1198; see Gannon II, 303 Kan. at 743. Specifically, the new law, L. 2016, ch. 45, sec. 4, again uses a 25% factor that increases 1% with every $1,000 below the median a school district falls on the State Board AVPP schedule and decreases 1% for every $1,000 rising above tire median with a cap of 100%.
Capital outlay state aid is also removed from the general state aid block grant. L. 2016, ch. 45, sec. 7(b). This removal allows aid to be calculated by the total mill levy actually set by a school district, instead of being frozen at the levy level imposed before the enactment of CLASS. See L. 2016, ch. 45, secs. 4, 7. As was demonstrated by the record and confirmed by the State in oral arguments, this change allows aid-qualifying districts that raise their mill levies to receive corresponding additional capital outlay state aid.
The aid is funded by tire legislature appropriating $50.7 million to the “capital outlay state aid fund.” L. 2016, ch. 45, sec. 1(b). The legislative record reflects this amount was estimated by the State Board- — subject to later adjustments — as sufficient for full funding of capital outlay aid for school year 2016-17.
The State Board is tasked with calculating the total aid required for all districts and certifying that amount in the form of a demand transfer against the state general fund. L. 2016, ch. 45, sec. 4(c). A backup for this capital outlay aid is created in section 1(b) that allows an increase in tire amount appropriated equal to the $15.1 million set aside for the extraordinary need fund. L. 2016, ch. 45, sec. 1(b), (e). In other words, if the State Board discovers the amount of capital outlay state aid needed is more than the $50.7 million appropriated, it may create additional demand transfers shifting funds from extraordinary need to capital outlay state aid. L. 2016, ch. 45, sec. 1(e).
According to data compiled by the Kansas Legislative Research Department (KLRD) and supplied to lawmakers, reverting from CLASS to the previous SDFQPA formula increases capital outlay state aid in tire 2016-17 school year by approximately $23.5 million statewide. The overwhelming majority of aid-qualifying districts will see substantial increases in such aid for the upcoming year, and the restored SDFQPA formula significantly decreases disparity between aid-qualifying and non-aid-qualifying districts.
Based on our review of the language of the legislative materials submitted for consideration, the State has met its burden to establish that it successfully responded to our constitutional equity concerns in capital outlay aid. By reviving and fully funding the prior formula we had approved in Gannon I—and confirmed in Gannon II—H.B. 2655 complies with our Gannon II decision in this area. See Gannon II, 303 Kan. at 709 (State has express burden to show compliance during the remedy stage).
H.B. 2655 fails to cure the LOB inequities affirmed to exist in Gannon II.
In Gannon II, we considered the changes made to the LOB aid formula by CLASS and determined they increased and exacerbated inequity between the poorer and wealthier districts. Specifically, we affirmed the panel’s conclusion that implementation of the quintile formula for calculating supplemental general state aid reduced the abilities of aid-qualifying districts to fund their LOB while leaving wealthier districts’ mill levy capabilities unscathed. Accordingly, we determined the distribution of LOB aid under CLASS was inequitable and required the State to respond with a cure. 303 Kan. at 730-33, 741. We held out reversion to the pre-CLASS aid formula from tire SDFQPA as a way the legislature could fix the inequitable distribution. 303 Kan. at 743.
But instead of reverting to the formula as it existed prior to CLASS, the legislature adopted the SDFQPA capital outlay state aid formula and applied it to LOB supplemental general state aid. L. 2016, ch. 45, sec. 3. The State readily admits using that formula to calculate supplemental general state aid significantly reduces not only the overall LOB aid — compared to the amounts calculated under both the LOB aid formulas in the SDFQPA and in CLASS — but also the number of school districts qualifying for it. But it points to the new “hold harmless” fund as well as to CLASS’ 1-year-old “extraordinary need” fund and argues these provisions sufficiently mitigate any increase in disparity among tire districts.
Based on our review of the legislative record and consideration of tire parties’ arguments, we hold the State has failed to meet its burden on this issue. Gannon II, 303 Kan. at 709. Simply put, use of the former capital outlay aid formula for the LOB funding system increases and exacerbates the disparity among districts. As more fully explained below, the legislature’s use of the hold harmless provision and extraordinary need fund in H.B. 2655 admittedly mitigates this increase in inequity. But at most they bring aid-qualifying districts back up to LOB distribution levels found inequitable in Gannon II. In addition, the new law does not require hold harmless funds to replace lost supplemental general state aid in a district’s LOB fund. Rather, hold harmless money is deposited into a district’s general fund. L. 2016, ch. 45, sec. 5(c). This action obviously leaves aid-qualifying districts with a financial gap between tire total funds that would have been generated through their LOB and the depleted funds actually in their LOB account. Aid-qualifying districts will now have the option of filling this gap — up to their authorized LOB percentage levels — through new mill levies that are not equalized by the State.
These activities will likely result in wealthier aid-qualifying districts raising additional local revenue with less tax effort than poorer aid-qualifying districts. The overall result of the new LOB funding mechanism under H.B. 2655 is therefore an exacerbation of inequity among the districts and a failure to satisfactorily respond to our Gannon II decision.
After tire legislature applied the SDFQPA capital outlay state aid formula to LOB supplemental general state aid, it appropriated $367.5 million. L. 2016, ch. 45, sec. 1(a). The Kansas State Department of Education (KSDE) estimated this was the amount needed to fully fund the projected supplemental general state aid for school year 2016-17 under the capital outlay formula. But if the demands on the LOB aid fund exceed the appropriations, the State Board may transfer monies from the extraordinary need funds $15.1 million until its exhaustion — -just as its monies can be transferred to the capital outlay aid fund should it be exhausted. L. 2016, ch. 45, sec. 1(e). And like the capital outlay state aid system, supplemental general state aid is now independent of the block grant. L. 2016, ch. 45, sec. 7(b).
Applying the capital outlay aid formula to supplemental general state aid decreases the overall aid going to qualifying districts — not only per the calculations under the SDFQPAs LOB formula but also under the CLASS “quintile” system held unconstitutional in Gannon II. Specifically, the KSDE data in the legislative record shows that the amount of supplemental general state aid for 2016-17 reduces the aid provided in the 2015-16 school year under CLASS by $82,908,792.
Under both prior formulas — SDFQPA and CLASS — the point to which districts were equalized on the State Board schedule was set at the 81.2 percentile. Gannon II, 303 Kan. at 720-21. Under the capital outlay aid formula, however, the equalization point becomes significantly lower and set to the median AVPP on the State Boards AVPP schedule. This application has the effect of substantially decreasing the number of aid-qualifying school districts and reducing the amount of equalization aid to those that remain eligible. According to State Board data in the legislative record, for the 2016-17 school year 197 districts will experience reduced supplemental general state aid and 35 districts will lose aid altogether. As specific examples, plaintiff Wichita School District will experience more than $6 million in decreased supplemental general state aid, and plaintiff Kansas City, Kansas School District will incur a loss of more than $2.5 million. While the property-poor districts suffer this loss, the wealthier districts with no need for supplemental general state aid experience no change in their ability to fund their LOB.
Nevertheless, the State argues that because we have previously found the prior capital outlay formula constitutionally permissible under Article 6 when applied to capital outlay state aid, we should also find it constitutionally permissible when applied to LOB supplemental general state aid. While this argument is superficially attractive, a deeper and comprehensive review discloses it fails to account for fundamental differences between the programs — differences the State’s counsel acknowledged during oral arguments and that we have previously found relevant in considering equity compliance. See Montoy IV, 282 Kan. at 17.
By law, school districts may only use capital outlay funds for capital improvements such as building costs, equipment purchases, and other authorized investments. K.S.A. 2014 Supp. 72-8804. And the amount of money raised by a district for these limited purposes is further restricted to what the district can generate within the legislatively prescribed 8-mill cap. K.S.A. 2014 Supp. 72-8801.
LOB funds, however, differ in both magnitude and flexibility. The revenues generated by a district’s maximum LOB, i.e., 33% of its state financial aid entitlement, are significantly greater than what an 8-mill capital outlay levy can generate. Moreover, LOB funds may supplement general state aid by being used for a district’s basic educational expenses. K.S.A. 2014 Supp. 72-6433.
For example, during the 2014-15 school year, the Wichita School District had a 30% LOB (below the 33% cap) generating a total of $111 million through its additional local effort mill levy, of which $59 million was supplemental general state aid. The district also had an 8-mill capital outlay levy generating a total of $28 million, of which $7.6 million was capital outlay state aid. Wichita’s $111 million in LOB-generated funds were available for general use. But the $28 million in funds raised by its maximum 8-mill levy were restricted to the narrow class of expenses authorized under the capital outlay program. See K.S.A. 2014 Supp. 72-6433; K.S.A. 72-8804. In sum, LOB enhances a district’s ability to perform its basic function, while capital outlay, although necessaiy, is indirect and generates considerably smaller revenue.
This phenomenon was confirmed by several witnesses testifying before the legislature during consideration of the legislative cure, including Deputy Commissioner Dale Dennis of the KSDE:
"[S]ometimes we have a tendency to want to compare capital outlay with LOB, but capital outlay diere is a difference. You have a cap. You can’t go more dian eight mills. So, if there’s — it's equalization, why, it’s got to be within that eight mills, where the LOB about the average tax rate there is in the 19, 20 mill range. So, it’s much larger and the dollars involved are much greater . . . (Emphasis added.)
Mark Tallman indicated the same:
“The local option budget and capital outlay are, as you’ve heard,... local choices. Now, many districts would say no one is operating without I think at least 20 percent LOB or more. They would argue that a lot of local option budget really . . . isn’t an option any more. There are districts that have no capital outlay.... I would say LOB is different because we’ve really, we believe, folded LOB into general operations. We don’t — I don’t think any district would really say the local option budget is now just used for extras. And, so, in that sense, what we — what we really have is every district has to levy 20 mills [required under K.S.A. 2014 Supp. 72-6431], and, then, every district has to levy some other mill rate to fund that 25 to 30 percent of their budget.” (Emphasis added.)
As we previously observed, beginning in the 2005-06 school year, the legislature has steadily increased the LOB cap. And beginning in the 2009-10 school year, it has overall decreased the BSAPP from its 2005-06 levels. See, e.g., K.S.A. 2005 Supp. 72-6410; Gannon II, 303 Kan. at 691-92, 720, 731-33. As a result of these legislative decisions to become increasingly dependent on local revenues for funding schools, districts now are required to rely more heavily on their LOB funds to perform their basic functions. Indeed, tire legislative record reveals that LOB funds now pay for nearly one-fourth of the districts’ basic operating expenses.
We must conclude that applying the former capital outlay formula — to calculate supplemental general state aid — creates intolerable, and simply unfair, wealth-based disparities among the districts. While these disparities are acceptable when computing aid in the smaller and less flexible capital outlay arena, the degree of inequity among the districts is too great when considering that the LOB has developed into such a major source of basic, and versatile, educational funding.
Hold Harmless Provision
Because of the reduction of LOB aid (supplemental general state aid) under H.B. 2655 for the 2016-17 school year, the'majority of districts will experience lower total funding amounts than the total amounts promised in the 2-year block grant of CLASS. To make up this loss, H.B. 2655 contains a “hold harmless” provision ensuring the changes do not result in a funding decrease from 2016-17 CLASS distributions. L. 2016, ch. 45, sec. 6. This mere restoration of funds is accomplished by a new payment to districts curiously labeled “school district equalization state aid.” L. 2016, ch. 45, sec. 1(a).
The general trend among the districts for 2016-17 under the new law, with some exceptions, is for them to receive an increase in capital outlay state aid (based on reimplementation of the former formula) but a bigger decrease in supplemental general state aid after application of the former capital outlay state formula to the LOB funding mechanism. School districts experiencing a net reduction in overall funding based on these two changes are entitled to receive the hold harmless payment in an amount equal to their loss. L. 2016, ch. 45, sec. 5. Jason Long, the revisor who drafted the bill, explained this provision while answering questions during a legislative committee hearing on March 22, 2016:
“Rep. Kleeb: ... I wanted to, Jason, have you go into Section 4 just a little bit and talk about this hold harmless aspect. In particular, so, we are holding districts that have this change due to this formula, we’re holding them even with the financing, is that my understanding?
“Mr. Long: Yes. To the extent that because of the change in how the supplemental general state aid is being calculated under this bill, to the extent that their total supplemental general state aid and capital outlay state aid amount is less next year [2016-17] than what they received through the block grant this year [2015-16], Section 4 makes up that difference and provides that difference to the school district so that they would, receive the same amount as they received this year [2015-16].” (Emphasis added.)
As an example of how the new payment would work, the KSDE showed that under the new law the Neodesha School District would receive an increase of $46,331 in capital outlay state aid but a $250,286 decrease in supplemental general state aid. The net loss of $203,955 would be covered by a hold harmless payment in that amount.
Consequently, the new hold harmless provision ensures aid-qualifying districts are brought back to their previously calculated 2016-17 school year CLASS distribution amounts. Lost funds under the newly substituted formula are simply repaid by hold harmless monies.
Despite there being no real change in the distribution of aid from 2015-16, the State points to a projected decrease in mill rate disparity among districts for the upcoming year as proof of compliance with our Gannon II decision. To support this conclusion, it primarily relies on two 1-page charts compiled by the Kansas Legislative Research Department and provided to lawmakers during their consideration of H.B. 2655. The charts divide the districts into five groups based upon AVPP wealth and show the difference in mills required in each to generate a 25% LOB. In the 2014-15 school year, the mill disparity between the poorest and the wealthiest 20% after implementation of CLASS and its “quintile” LOB formula was 4.225. In tire 2015-16 school year, the second year of applying die same formula, the disparity increased to 5.456. But for 2016-17, under H.B. 2655 the disparity is projected to decrease to 3.148. :
The State failed in its brief, however, to demonstrate that this reduction in mill levy disparity was anything more than a result of normal fluctuations in the AVPP of districts. Such fluctuations are well known to the State and, in Gannon II, it cited the fluctuations as a basis for its inability to properly fund LOB supplemental general state aid. See 303 Kan. at 723-26. And, during recent oral arguments, the State admitted it was unable to demonstrate that the operation of H.B. 2655 is what would cause the projected reduction in mill rate disparity.
The legislative record also leads us to reject the States argument. As mentioned, after the enactment and implementation of CLASS, the disparity between the poorest and the wealthiest 20% of districts setting a 25% LOB was 4.225 mills in 2014-15. And in the second year- of CLASS, which froze funding distributions for all districts at prior levels, the disparity actually increased 1.231 mills to 5.456 in 2015-16.
As the plaintiffs point out, this mill increase was accompanied by a $16,684 increase in the difference between the wealthiest and poorest districts’ groups’ AVPP. But this difference in AVPP was reduced in the upcoming school year — 2016-17—by $30,301, and the accompanying mill rate disparity decreased by 2.308 mills to 3.148. So they argue the decrease is more coincidence than anything else.
Eddie Penner, the staff member of Kansas Legislative Research Department who provided the information the State is relying on for its argument, confirmed the plaintiffs’ observations that the mill levy differences can be caused by normal fluctuations in AVPP— and not changes in the amount of state aid:
“[T]he cost between [years 20] 14-15 and [20] 15-16, the difference there or even that increase because, as you recall, tire amount of supplemental general state aid for those two years was the exact same based upon the block grant. And so that disparity is a result of — that increase in disparity from 14-15 to 15-16, is essentially a result of the weighted assess evaluation and enrollment in schools [AVPP] have changed and nothing else. Because it isn’t the result at all of the amount of state aid that was provided to those districts.” (Emphasis added.)
Penner continued:
“So it just so happened that between 14-15 and 15-16, the wealthiest 20 percent of school districts in the state got, relatively speaking, a little wealthier and the poorest 20 percent of school districts in the state got, relatively speaking, a little poorer than they were the prior year and that caused that disparity to extend.”
Moreover, the charts merely reflect averages which hide greater disparities contained inside. We observe that even within the five different groups of districts, data in the record from Mr. Penner shows that large mill disparities exist. For example, within the wealthiest district group, generating a “Non-State Portion of 25% Adopted LOB” for the Rurlington School District (AVPP of $484,593) requires a 2014-15 mill levy of 4.359. And for the Brewster School District (AVPP $131,824), the same “Non-State Portion of 25% Adopted LOB” requires a mill levy for that identical time period of 21.802.
The same problem exists within the poorest district group. Generating a “Non-State Portion of 25% Adopted LOB” for the Valley Heights School District (AVPP of $46,243) requires a 2014-15 mill levy of 22.204. And for the Eudora School District, (AVPP $36,281), the same “Non-State Portion of 25% Adopted LOB” requires a mill levy for that identical time period of 14.101.
Based on the States oral arguments and the record before us, the State has not persuaded us that the two single-page charts’ decrease in mill levy disparity is attributable to anything enacted in H.B. 2655. Gannon v. State, 303 Kan. 682, 709, 368 P.3d 1024 (2016) (Gannon II) (State has express burden to show compliance during the remedy stage.).
In Gannon II we held the distribution of LOB funds under CLASS was unconstitutionally inequitable. 303 Kan. at 729. And the State admits that application of the SDFQPA capital outlay formula to supplemental general state aid drives LOB funding to aid-qualifying districts even further below those unconstitutional distribution amounts. The hold harmless provision, at most, merely returns those districts to CLASS 2016-17 distribution amounts. Accordingly, the hold harmless provision is not sufficient to cure the increased disparity created by using the former capital outlay formula to calculate supplemental general state aid.
Moreover, while the hold harmless provision for 2016-17 at most does give back what the new LOB formula takes away for that year, it replaces it in a way that actually increases disparity among aid-qualifying districts’ ability to access additional LOB revenue. For aid-qualifying districts, supplemental general state aid makes up a significant portion of the district’s LOB funds, so with the decrease in such aid under H.B. 2655, all aid-qualifying districts will experience some gap between the total funds that would have been realized through their LOB and tire monies actually received to fund it.
While the hold harmless provision is meant to make up for this loss, the bill’s terms dictate that the money not go into a district’s LOB fund. Rather, it is deposited into a district’s general fund. L. 2016, ch. 45, sec. 5(3)(c). This action maintains the gap between the total funds that would have been generated by the LOB — up to the district’s authorized percentage level — and the money actually received in the LOB account. So a choice is created for aid-qualifying districts: They either can fill the gap with the hold harmless money or leave the hold harmless money in their general fund and fill the gap by raising even more — but not equalized — revenue through increased LOB mill levies until their cap is reached.
This choice was explained to legislators by Deputy Commissioner Dale Dennis as he answered their questions during their consideration of the bill:
"Rep. Hutton: [T]he last time we had this discussion it was apparent that the bulk of what was going back to some school districts was going to be really returning to taxpayers as property tax reduction. How does this approach jive up with — will this result in all this going still to property tax reductions or will this actually result in more money to the school districts?
“Mr. Dennis: No, it will not — this, the effect of this will not reduce property tax overall. The expenditures will stay about the same. . . . Now, the reason why I say property tax could go up, if the LOB goes — they’re losing — they lose state aid in their LOB, they make that up in the hold harmless clause. The hold harmless money or equalization money goes to the general fund and that can go to . . . the general fund to be spent in classrooms. Now, the board's question then is the money they lost in the state aid, do they want to raise the mill levy or cut the budget. (Emphasis added.)
“[Rep.] Ryclcman: And what money would they lose in state aid?
“Mr. Dennis: The money they would lose in LOB state aid would be . . . made up in hold harmless, but the board would have some option. The hold harmless money goes to the general fund and the LOB state aid loss is felt in the LOB fund. Now, there’s a way you can do this. The school district could choose to take the hold harmless money and indirectly put it in the LOB and not raise the mill levy, but you’re more likely to see a little increase in mill levy because the LOB state aid is going down as such. They got the same amount of money, but local boards will decide that and, Representative Hutton, they’ll be all over the place. Some will choose to raise the mill levy .... Local decision there.” (Emphasis added.)
In short, wealthier aid-qualifying districts that imposed additional mill levies to fill this gap will require less tax effort than poorer aid-qualifying districts, and those districts choosing to increase local levies will receive no additional corresponding supplemental general state aid for their effort — a combination that exacerbates existing inequities, if not creating additional ones. Cf. Gannon I, 298 Kan. at 1188 (raising LOR cap two percentage points without corresponding increase in supplemental general state aid exacerbated wealth-based disparities among districts because any additional funds would have to come entirely from each district’s property tax base) (citing Montoy III, 279 Kan. at 834). These inequities may affect many of the 232 aid-qualifying districts — out of 286 total districts in the state — that lost some LOB aid under H.B. 2655.
So while the hold harmless provision creates the same distribution of funding seen under CLASS, we conclude its application actually allows increases in the inequity from the previous 2016-17 CLASS LOB funding distribution.
The State next points to the political necessity of the hold harm less provision and its benefit in ensuring district budget certainty in the 2016-17 school year as reasons we should accept H.R. 2655. Neither of these purposes have a bearing on Article 6 equity compliance in this context. See generally Gannon I, 298 Kan. at 1135-37.
Budget certainty for schools is an admirable goal. But CLASS itself was in part constructed with the objective of multi-year budget certainty for districts, and we still found the magnitude of the inequities in its provisions ran afoul of Article 6. See Gannon II, 303 Kan. at 732-33. An unconstitutional school funding system is not rendered constitutional merely because a district treated inequitably can budget with some certitude for its inequitable treatment.
The political necessities of the legislature are similarly irrelevant to our review. The constitution of the people of Kansas does not change its requirements based on legislators’ support, or nonsupport, of proposed legislation. See 303 Kan. at 735 (citing Atkinson v. Woodmansee, 68 Kan. 71, 75, 74 P. 640 [1903]). Rather, the Kansas Constitution “is the supreme and paramount law, receiving its force from the express will of the people.” 303 Kan. at 735 (quoting Moore v. Shanahan, 207 Kan. 645, 651, 486 P.2d 506 [1971]). Just as the legislature has die power and duty to create a school funding system that complies with Article 6, it is this courts power and duty to determine whether an act of die legislature is invalid under that constitution, i.e., if the legislature has met its duty. See Gannon II, 303 Kan. at 734-35. A law’s political expediency or level of support will not shield it from such review.
After considering all of the arguments, we conclude the State has failed to meet its burden on this issue in the remedial phase of this case. Gannon II, 303 Kan. at 709. Specifically, the hold harmless provision fails to sufficiently mitigate the increased inequities created by applying the capital outlay aid formula to the LOB funding system. At best, H.B. 2655 does no more than take away funds from the districts, then give the funds back, simply to restore the same level of inequity we ruled unconstitutional in Gannon II, 303 Kan. at 720. Additionally, it worsens disparity in accessing LOB funds among aid-qualifying districts.
The Extraordinary Need Fund
In 2015 the legislature passed CLASS, which created a fund for “extraordinary need state aid” and placed it under the control of the State Finance Council. K.S.A. 2015 Supp. 72-6476. The funds purpose was to allow those districts experiencing extraordinary increases in enrollment, extraordinary decreases in their assessed valuation, and “any other unforeseen acts or circumstances which substantially impact the . . . general fund budget for the current school year” to apply to the Council for increased aid. K.S.A. 2015 Supp. 72-6476(b). The aid was apparently created, in part, to attempt to cure inequities created when CLASS’ block grants essentially froze all districts’ funding at 2014-15 levels for 2015-16 and 2016-17, regardless of increased enrollments or drops in AVPP. See Gannon II, 303 Kan. at 694.
The three-judge panel described the positioning of the fund with the Council as "oddly placed.” It continued: “The Kansas State Board of Education, at least in the first instance, has the constitutional duty of the oversight of USDs” and complained that “the needs evaluation procedure includes no part for that Board.”
H.B. 2655 responds to this concern by moving the fund under the supervision of tire State Board. In addition to the prior grounds for fund disbursement, the new law also allows the State Board to consider “whether tire applicant school district has reasonably equal access to substantially similar educational opportunity through similar tax effort.” L. 2016, ch. 45, sec. 9(b)(4). The State argues this provision also mitigates any shortcomings in the application of the capital outlay aid formula to the LOB funding mechanism. Specifically, it points out the State Board can reduce any continuing disparity by distributing extraordinary need funds to aid-qualifying districts.
We begin by observing that H.B. 2655 reduces the extraordinary need fund balance from $17.5 to $15.1 million. L. 2016, ch. 45, sec. 1(d). And while maintaining its original purpose, i.e., providing relief for districts experiencing extraordinary increases in enrollment, extraordinary reductions in AVPP, and any other unexpected circumstances increasing the cost of performing their basic functions (L. 2016, ch. 45, sec. 9), the new law also expands the grounds for tire funds use by making it a backup for both the capital outlay and LOB aid provisions. L. 2016, ch. 45, sec. 1(e). The State argues that although the reduced fund balance is now also subject to even more bases for demands, it can sufficiently reduce the disparities in LOB funding we recognized in Gannon II.
As noted earlier, through operation of the hold harmless provision, H.B. 2655 provides districts with the same distribution of funding for 2016-17 as they received under CLASS for 2015-16; few exceptions are found in the data provided by tire State. Because in Gannon II we held this distribution to be unconstitutionally inequitable, almost all aid-qualifying districts would have a valid demand on the extraordinary need fund for more monies under the laws new language. L. 2016, ch. 45, sec. 9(b) (“[T]he state board shall consider . . . whether the applicant school district has reasonably equal access to substantially similar education opportunity through similar tax effort.”). See Gannon I, 298 Kan. at 1175.
We are simply not convinced by the State that these inequities can be cured even when exhausting the extraordinary need fund, particularly when monetary demands can already be made against it based upon districts’ extraordinary increases in enrollment and decreases in AVPP. Gannon II, 303 Kan. at 709. We acknowledge that the State has provided this court with 700 pages of documents, in response to our suggestion in Gannon II, 303 Kan. at 743 (“[T]he State would help its case by showing its work in how it determined that any . . . proposed solution complies with Gannon I”). But this advice includes more than just providing documents. It requires the State to show justification for legislative decisions, i.e., demonstrating to this court why the result of H.B. 2655 is equitable. See, e.g., U.S.D. No. 229 v. State, Case No. 92 CV 1099 (Shawnee County District Court, December 16, 1993) (unpublished opinion) (based on historical data presented by parties as justification for legislative action, as well as information from other states and statistical analysis commonly applicable to school finance issues, court concluded the LOB [including supplemental state aid] did not violate equal protection).
We hold the extraordinary need fund is an insufficient remedy for the residual inequities in the LOB funding mechanism. See Gannon II, 303 Kan. at 696 (extraordinary need fund found insufficient by panel to cure CLASS inequities).
Summary
In its present form, the SDFQPA capital outlay formula satisfies the equity provisions of Article 6 when applied to capital outlay and when fully funded. See Gannon II, 303 Kan. at 743. But the application of the SDFQPA capital outlay state aid formula to LOB supplemental general state aid not only fails to cure, but also worsens the inequities affirmed to exist in Gannon II. In short, disparities among the districts remain inequitable and unconstitutional.
Applying this same formula to two distinct programs reveals substantial differences. The LOB funding is much larger and provides a substantial amount of resources covering basic educational expenses akin to the purposes of B SAPP. The magnitude of disparity that can be tolerated in that system is therefore lower than what can be accepted in the more indirect and more restrictive capital outlay system. For as Mr. Tallman described to the legislature on March 21, 2016, “[W]hat we really have is eveiy district has to levy 20 mills [required under K.S.A. 72-6431], and, then, eveiy district has to levy some other mill rate to fund that 25 to 30 percent of their budget.” (Emphasis added.)
While the hold harmless provision does somewhat mitigate the decrease in supplemental general state aid, it does so in a way that at best only brings districts to the same distribution held inequitable under Gannon II — while actually increasing disparity between the aid-qualifying districts. As described, the eventual decrease in supplemental general state aid allows aid-qualifying districts the option of accepting the hold harmless money and then backfilling the gap in their LOB, an easier task for wealthier districts because less mill levy increase is required than for poorer districts. Moreover, those districts will not be entitled to additional state aid for their new taxing effort because such-equalization aid essentially was already included in the hold harmless monies. So the net effect of the hold harmless provision is to worsen the LOB disparity in CLASS that we held unconstitutional in Gannon II.
The State has not shown that the hold harmless provision and the diluted extraordinary need provision will cure the increased disparities going forward. The State has the burden of proof in this remedial phase and, after review of H.B. 2655 and the legislative record, we hold it has not carried its burden. Gannon II, 303 Kan. at 709.
We take no issue with the stated goals of budget certainty and recognize the political realities of the legislative branch. But we must review lawmakers’ efforts for conformity with the Kansas Constitution, which demands that school districts have reasonably equal access to substantially similar educational opportunity through similar tax effort. Gannon I, 298 Kan. at 1175. We conclude the LOB funding mechanism under H.B. 2655 is an “unsuccessful attempt[] to equitably, i.e., fairly, allocate resources-among the school districts.” Gannon II, 303 Kan. at 744.
Issue 2: Plaintiffs are not entitled to attorney fees.
Plaintiffs have requested attorney fees at every stage of this case. The panel denied their initial request, and we affirmed that decision in Gannon I. 298 Kan. at 1195-96. In Gannon II, the plaintiffs renewed their request on appeal. We denied the request in part because it was not raised with the panel on remand, and, insofar as the request was for appellate attorney fees, it was procedurally insufficient because no motion was filed under Supreme Court Rule 7.07(b) (2015 Kan. Ct. R. Annot. 72). Gannon II, 303 Kan. at 733.
Nothing has changed since our February 11 opinion in this matter. The plaintiffs note they have a request for attorney fees pending in the panel which they filed shortly after the panels decision we reviewed in Gannon II. Because the renewed motion for attorney fees for the litigation phase of this case has not been ruled on, it is not before us on appeal. See K.S.A. 60-2101; see also Snodgrass v. State Farm Mut. Auto. Ins. Co., 246 Kan. 371, 377-78, 789 P.2d 211 (1990) (decisions on attorney fees are not part of the merits and may be adjudicated separately). Additionally, the plaintiffs have not filed a motion for appellate attorney fees in this court. For the above reasons, we deny the plaintiffs’ request for attorney fees on present showing.
Constitutionality and Severability
We have declared the supplemental general state aid provision of H.B. 2655 to be unconstitutional. The hold harmless and extraordinary need provisions do not cure tire infirmities. Invalidating a provision because it is unconstitutional is not “rewriting” the statute. Rather, it is merely enforcing the constitution. See National Federation of Independent Business v. Sebelius, 567 U.S. _, 132 S. Ct. 2566, 2607, 183 L. Ed. 2d 450 (2012). See also Central Branch Union Pac. R. Co. v. Atchison, T. & S.F.R. Co., 28 Kan. 453, 460-61 (1882) (court is exercising its constitutional duty when it ascertains that one part of legislation conflicts with the constitution and must fail).
The question then becomes: What effect does our holding have on the remaining provisions of H.B. 2655 and CLASS? See Sedlak v. Dick, 256 Kan. 779, 803, 887 P.2d 1119 (1995) (“Since we have held the above provisions of K.S.A. 44-555b to be unconstitutional, we must determine what effect our holding has on the remaining provisions of the statute and the Act.”).
The State urges us to sever any unconstitutional provision and let the remainder of CLASS stand. It points out that while CLASS contained a nonseverability clause—K.S.A. 2015 Supp. 72-6481(a)—section 12 of H.B. 2655 specifically repeals that clause. And section 2(c)(3) of this new law replaces it with a severability clause: “[T]he provisions of this act should be considered as severable.”
The plaintiffs respond that the LOB funding mechanism, including the hold harmless and extraordinary need provisions, is not severable from CLASS, so the entire Act is unconstitutional. They also ask us to lift our stay of the panels extensive remedial orders, which included, in part, reinstating certain provisions of the SDFQPA and mandating some additional funding. See Gannon II, 303 Kan. at 697-98.
To begin our severance analysis, we acknowledge the caution provided from several justices of the United States Supreme Court:
"An automatic or too cursory severance of statutoiy provisions risks rewritfing] a statute and givfing] it an effect altogether different from that sought by the measure viewed as a whole.’ Railroad Retirement Bd. v. Alton R. Co., 295 U.S. 330, 362, 55 S. Ct. 758, 79 L. Ed. 1468 (1935). The Judiciary, if it orders uncriti cal severance, then assumes the legislative function; for it imposes on the Nation, by the Courts decree, its own new statutoiy regime, consisting of policies, risks, and duties that Congress did not enact. That can be a more extreme exercise of the judicial power than striking the whole statute and allowing Congress to address the conditions that pertained when the statute toas considered at the outset.” (Emphasis added.) National Federation of Independent Business v. Sebelius, 132 S. Ct. at 2668 (Scalia, J., dissenting).
To avoid an automatic or too cursory severance, we apply our nearly 60-year-old two-part Kansas test that was recently confirmed as follows:
““Whether the court may sever an unconstitutional provision from a statute and leave the remainder in force and effect depends on the intent of the legislature. If from examination of a statute it can be said that [1] the act would have been passed without the objectionable portion and [2] if the statute would operate effectively to cariy out the intention of the legislature with such portion stricken, the remainder of the valid law will stand. Whether the legislature had provided for a severability clause is of no importance. This court will assume severability if the unconstitutional part can be severed without doing violence to legislative intent.’ ” (Emphasis added.) Brennan v. Kansas Insurance Guaranty Ass’n, 293 Kan. 446, 463, 264 P.3d 102 (2011) (quoting Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 300, 327 P.2d 836 ([1958]).
Our test has some resemblance to the two-part approach utilized by the United States Supreme Court — both parts of which also must be satisfied in order to sever. “The standard for determining the severability of an unconstitutional provision is well established: ‘“[1] Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped [2] if what is left is fully operative as a law.” ’ ” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S. Ct. 1476, 94 L. Ed. 2d 661 (1987). But the statutory remainder also must “function in a manner consistent with the intent of Congress.” 480 U.S. at 685. See Sebelius, 132 S. Ct. at 2608, 2676 (The remainder will “still function in a way ‘consistent with Congress’ basic objectives in enacting the statute.’”).
The severability clause
Brennan quoted Felten to state that ‘“[wjhether the legislature had provided for a severability clause is of no importance.’” (Emphasis added.) 293 Kan. at 463. But this statement requires some explanation, given the earlier Brennan-Felten quotation: “ “Whether die court may sever an unconstitutional provision from a statute and leave the remainder in force and effect depends on the intent of the legislature.’” (Emphasis added.) 293 Kan. at 463. As explained below, the statement regarding the severability clause should more accurately provide: “At the later stage of the analysis, whether the legislature had provided for a severability clause is of no importance.”
Certainly, the presence of a severability clause is direct evidence of legislative intent — which Brennan indicates is our touchstone. State ex rel. Morrison v. Sebelius, 285 Kan. 875, 913, 179 P.3d 366 (2008). As the State admitted at oral argument, however, the clause s presence is not dispositive of the severability issue; it simply creates a presumption of severability. See State v. Next Door Cinema Corp., 225 Kan. 112, 118-119, 587 P.2d 326 (1978) (The effect of a severability clause ‘“is to create . . . presumption of separability.”). See Alaska Airlines, Inc., 480 U.S. at 686 (“[S]uch a clause creates a presumption that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision.”). In other words, for determining legislative intent, the severability clause “is an aid merely; not an inexorable command.” Dorchy v. State of Kansas, 264 U.S. 286, 290, 44 S. Ct. 323, 68 L. Ed. 686 (1924).
Accordingly, despite the presence of a severability clause, at least as early as 1947 this court has declared an entire act void— i.e., been unable to sever the unconstitutional provision from its companions. State ex rel. v. Hines, 163 Kan. 300, 322, 182 P.2d 865 (1947); see Sedlak v. Dick, 256 Kan. at 803-04; Thompson v. KFB Ins. Co., 252 Kan. 1010, 1023, 850 P.2d 773 (1993); Boyer v. Ferguson, 192 Kan. 607, 389 P.2d 775 (1964). The United States Supreme Court has made similar holdings. See, e.g., Sloan v. Lemon, 413 U.S. 825, 834, 93 S. Ct. 2982, 37 L. Ed. 2d 939 (1973); Williams v. Standard Oil Co. of Louisiana, 278 U.S. 235, 245, 49 S. Ct. 115, 73 L. Ed. 287 (1929), overruled in part on other grounds by Olsen v. Nebraska, 313 U.S. 236, 61 S. Ct. 862, 85 L. Ed. 1305 (1941); Hill v. Wallace, 259 U.S. 44, 70, 42 S. Ct. 453, 66 L. Ed. 822 (1922).
With this background, we continue our severability analysis. We observe that the supplemental general state aid provisions were designed by the legislature to specifically address inequities it acknowledged existed in the system' — -in particular, those created by the LOB funding device. See Gannon I, 298 Kan. at 1185 (legislative creation and distribution of supplemental general state aid “would be meaningless if inequalities were not inherent within the LOB funding scheme”).
The severance of the unconstitutional provisions designed to cure these inequities obviously leaves those inequities still in place. See Gannon I, 298 Kan. at 1185 (“And as with the withholding of capital outlay equalization payments, once the general supplemental state aid was reduced, it logically follows that the inequity that equalization aid was designed to cure remains present. The State points to nothing in the record demonstrating that the inequity was eliminated or lessened on its own or by other means.”); see also Gannon II, 303 Kan. at 717 (quoting Gannon I, 289 Kan. at 1179) (“ ‘Once payments have stopped, it logically follows that the inequity the equalization aid was originally designed to cure remains present.’”).
It just as logically follows that if the statutory attempts to cure, e.g., the hold harmless and extraordinary need fund, are insufficient to eliminate the unconstitutionality, then the deletion of these and all other cures necessarily maintains the state of unconstitutionality. And so we hold. Accordingly, we cannot accept the State’s request that we simply sever the unconstitutional LOB aid (supplemental general state aid) provision and leave the remainder of H.B. 2655 intact.
Simply put, severance actually worsens the inequitable situation. To put this exacerbation in financial perspective, a KSDE spreadsheet shows that severance of this aid provision would mean a loss of approximately $367 million for the 2016-17 school year to those 197 school districts which are scheduled to receive such aid. According to Deputy Education Commissioner Dennis, all of the States educational funds for districts in school year 2016-17 total “a little over $4 [billion].” So taken as a whole, the loss represents a 9% funding reduction to aid-qualifying districts.
This holding brings us to the States alternative argument: sever additional provisions as necessary and save the remainder of CLASS. The next logical step for severance after the supplemental general state aid provision is the inequity-producing LOB provision itself. After all, why not sever the provision that has created the inequity and consequently created the need for the supplemental general state aid?
The principal problem with this severance alternative requested by the State is that according to KSDE spreadsheets, the LOB “local effort” funding mechanism generates approximately $693 million per year for those school districts with LOB s. Combining this loss with the supplemental general state aid loss of $367 million per year means slightly more than $1 billion per year — roughly 25% of all the educational funds for districts from the State — would be gone.
At oral arguments the State acknowledged the magnitude of this funding loss. But its counsel nevertheless contended that loss of $1 billion through severance is better than the loss of the $4 billion that would result if severance were not allowed and the entire funding act (CLASS) were held unconstitutional. He argued that this severance at least would allow the school districts to operate from July 1 until some unknown point during school year 2016-17 when the remaining $3 billion was exhausted. By then, he reasoned, the legislature would supply a constitutional financial fix allowing schools to continue unimpeded operation through the balance of the school year.
We again acknowledge that “[a]n automatic or too cursory severance of statutory provisions risks Tewrit[ing] a statute and giv[ing] it an effect altogether different from that sought by the measure viewed as a whole.’” National Federation of Independent Business v. Sebelius, 132 S. Ct. at 2669 (Scalia, J., dissenting). So analysis of this part of the State s severance argument requires careful application of our test for severance.
As we specifically apply the two factors expressed in Brennan, we first ask whether the legislature would have passed CLASS without the unconstitutional LOB and supplemental general state aid provisions — which supply approximately $1 billion or 25% of all state funds for K-12 public school education. We are not persuaded for several reasons.
First, as of the 2016 legislative session, the State already had been in continuous litigation since 2010 over its alleged violation of the adequacy provisions of Article 6 of the Kansas Constitution. See Gannon I, 298 Kan. at 1115 (Gannon suit filed November 2010).
Second, on June 26, 2015, the three-judge panel ruled the States then-current funding was constitutionally inadequate and ordered remedies — including the State’s payment of amounts that, when calculated, would be millions of dollars. As of the 2016 legislative session this panel holding had not been ruled upon by this court — per our order of June 30, 2015, which stayed the panels order pending our decision on equity. Gannon II, 303 Kan. at 698.
Third, in Gannon II we cautioned the legislature that any funding system it enacted in response to our decision “must be demonstrated to be capable of meeting the equity requirements of Article 6 — while not running afoul of the adequacy requirement.” Gannon II, 303 Kan. at 743.
Fourth, tire legislature’s inclusion of the hold harmless provision demonstrates that many of its members apparently were concerned about any amount of reduced funding to school districts caused by H.B. 2655. Indeed, nine of the senators voting “yes” indicated that the hold harmless concept represented a significant part of their decision-making process. According to Senator Denning:
“Madam President: I vote yes on Sen Sub for H.B. 2655 because of the evidence presented. . . . Moreover, it includes a ‘hold harmless’ provision that means no school district loses funds. AH the school districts that testified . . . acknowledged that the hold harmless provision is necessary in light of the legislatures obligation to respond to the Court’s remedial order while the school districts’ budgeting processes are occurring. The Department of Education witnesses confirmed this view, too.” (Emphasis added.)
Denning’s “Explanation of Vote” was concurred with by Senate President Wagle, and Senators Arpke, Fitzgerald, Lynn, Master-son, Melcher, Smith, and Wolf.
And as a former Speaker of the House explained to legislators, the hold harmless provision also guards against a claim of constitutionally inadequate funding:
“No district losing funds, that’s the hold harmless provision. ... No one is going to lose under this. The Court did have one phrase in its opinion that suggested that you ought to, even though this in the equity phase, you should not lose sight of adequacy. And — with hold harmless, you guard against a claim that, well, you have taken money from me that I was expecting that I already had in my budget and so I’m no longer adequate. Hold harmless provisions take care of that.” (Emphasis added.)
Finally, we take judicial notice of the recent budget bill the legislature submitted to the governor in May 2016. While authorizing allotments (reductions) to state government funds appropriated by tire legislature, the bill essentially exempted K-12 school funding reduction from allotment autiiority for FY 2017. 2016 House Substitute for Senate Bill No. 249, section 45 provides:
“The provisions of section 98(a)(2) of 2016 House Substitute for Senate Bill No. 161 [allowing reduction through allotments] shall not apply to any item of appropriation which provides funding to any state agency for school districts educating students in kindergarten or any of the grades one through 12.” (Emphasis added.)
We therefore deem it quite unlikely the legislature would have passed legislation intentionally cutting the K-12 public school education budget — which the panel found was already underfunded, i.e., inadequate — by another $1 billion, or 25%. See State ex rel. v. Wyandotte County Comm’rs, 140 Kan. 744, 754, 39 P.2d 286 (1934) (court “convinced that the legislature would not have given its sanction to this enactment” without the unconstitutional provision so statute as a whole cannot stand); see also Champlin Refining Co. v. Corporation Com’n of State of Okl., 286 U.S. 210, 234, 52 S. Ct. 559, 76 L. Ed. 1062 (1932) (after application of severability clause, remaining provisions stand “[u]nless it is evident” legislature would not have enacted just those provisions).
Nonseverability here is appropriate not only because of a failure of the first part of Brennans testbut also because of an even more evident failure of the second. That part provides: ‘“[I]f the statute would operate effectively to carry out the intention of the legislature with such portion stricken, the remainder of the valid law will stand.... This court will assume severability if the unconstitutional part can be severed without doing violence to legislative intent.’” 293 Kan. at 463. See Sebelius, 132 S. Ct. at 2608 (the remainder will “still function in a way ‘consistent with Congress’ basic objectives in enacting the statute.’”); Alaska Airlines, 480 U.S. at 685 (the remainder also must “function in a manner consistent with the intent of Congress”).
We begin this analysis of the second part of the Brennan test by examining the express “ ‘intention of the legislature’ ” in passing H.B. 2655. 293 Kan. at 463. According to its preamble, “[t]he legislature is committed to avoiding any disruption to public education and desires to meet its obligation.” And section 2(b) provides: “The legislature has been advised that funding disruptions and uncertainty are counter-productive to public education and that the funding certainty of the classroom learning assuring student success act [CLASS] is critical to the effective operation of school districts . . . .” (Emphasis added.) H.B. 2655, sec. 2(b).
Similarly, section 6(b) states: “The legislature hereby declares that the intent of this act is to . . . provide more flexibility and increased local control for school district boards of education and administrators in order to (1) Enhance predictability and certainty in school district funding sources and amounts ... (3) maximize opportunities for more funds to go to the classroom.” (Emphasis added.)
Finally, section 6(c) provides: “The legislature further declares that the guiding principles for the development of subsequent legislation for the finance of elementaiy and secondary public education should consist of . . . (1) Ensuring that students’ educational needs are funded; (2) providing more funding to classroom instruction.” (Emphasis added.)
These express legislative statements repeatedly make clear that with the LOB and supplemental general state aid provisions severed, CLASS cannot operate effectively to carry out the intention of the legislature. Among other things, severance and the immediate loss of $1 billion of school funding would seriously undermine tire legislature’s “desire[] to meet its obligation” under Article 6 of the constitution. And this loss of 25% of all educational funds until such time as the legislature might restore them contradicts the legislative intent to (1) “avoid[] any disruption to public education”; to (2) “enhance predictability and [provide] certainty” in planning school district budgets; and to (3) “maximize opportunities for more funds to go to the classroom.”
The legislatures intent has been expressed not only in H.R. 2655’s language and legislative history, but also in the State’s brief. “When simply reverting to all of the old formulas failed to gain support, the [2016] Legislature considered other approaches, all with the predominant goal in mind of creating a constitutionally equitable system of school finance.” (Emphasis added.)
These points lead us to conclude that severance of these two provisions would do “ ‘violence to legislative intent.’ ” Brennan, 293 Kan. at 463. The school district reorganization case of Hines, 163 Kan. 300, is of particular guidance. There, the plaintiff claimed the legislature had unconstitutionally delegated its legislative power to local committees which would reorganize school districts throughout the state. The court began its analysis with several important observations similar to ours in the instant case.
“Before giving consideration to the specific questions presented, some general observations should be made. The court is cognizant of the complicated consequences which rest upon the result of the litigation. The court realizes that probably nothing is more essential to the welfare of the state than the continued, maintenance of adequate schools.... The court... [understands] the complex problems which have confronted the legislature in its efforts to enact satisfactory legislation controlling the controversial questions which arise upon consideration of school reorganizations. As a consequence this case presents an instance wherein the rule relative to the duty of a court to hold that statutes are valid, whenever it is reasonably possible to do so, has profound significance.” (Emphasis added.) 163 Kan. at 301.
With these observations in mind, the court nevertheless found several statutory provisions unconstitutional. And despite the presence of a severability clause, the court held that these unconstitutional provisions could not be severed, and it declared all provisions void. 163 Kan. at 321-22. In support the Hines court cited State v. Smiley, 65 Kan. 240, 247, 69 P. 199 (1902):
“[I]f the void and valid parts of the statute are so connected with each other in the general scheme of the act that they cannot be separated without violence to the evident intent of the legislature, the whole must fail. These rules are of everyday enforcement in the courts.” (Emphasis added.)
As Smiley expressed, severance is rejected when tire provisions are connected in the general scheme of tire act, i.e., when severance would change its scope. See State ex rel., v. Consumers Warehouse Market, 185 Kan. 363, 372, 343 P.2d 234 (1959) (“The invalid portion of the statute is not a separate and independent provision of the Act, but rather is such an integral and inseparable part of the whole scheme and purpose of die law that it may not be severed tíierefrom and thus leave die remainder in full force and effect. In other words, to eliminate the objectionable exemption would change the scope of the Act.”).
As the concept of nonseverability of unconstitutional provisions has been considered by Kansas courts for more than 100 years, obviously its cousin — the threshold concept of statutory invalidity— has been as well. See Gannon II, 303 Kan. at 743-44. There we observed that an unconstitutional act is invalid because “ ‘ “it is not a law... it is, in legal contemplation, as inoperative as though it had never been passed.” ’ ” 303 Kan. at 744 (quoting Wyandotte Co. v. K.C., F.S. & M. Rld. Co., 5 Kan. App. 43, 44, 47 P. 326 [1896]). And as we cautioned there, without a constitutionally equitable school finance system, the schools in Kansas will be unable to operate.
As we explained in more detail in Gannon II, the inability of Kansas schools to operate would not be because this court would have ordered them closed. Rather, it would be because this court would have performed its sworn duty to the people of Kansas under their constitution to review the legislature’s enactments and to ensure the legislature’s compliance with its own duty under Article 6. See Gannon II, 303 Kan. 682, Syl. ¶ 9. Simply put, the state legislature’s unconstitutional enactment is void; it has not performed its duty. Gannon II, 303 Kan. at 743-44; see Auditor of State v. A.T. & S.F. Railroad Co., 6 Kan. 500, 506, 1870 WL 507(1870) (quoting Marbury v. Madison, 5 U.S. [1 Cranch] 137 [1803]) (“It is emphatically the province and duty of tire judicial department to say what the law is.’”).
We acknowledge the legislature’s intent, as recently expressed in its preamble to H.B. 2655: “The legislature is committed to avoiding any disruption to public education and desires to meet its obligation.” So, we continue to stay the issuance of our mandate — and the stay of the panels broad remedial orders. — until June 30, 2016. This will give the legislature yet another opportunity to treat Kansas students fairly and “to craft a constitutionally suitable solution and minimize the threat of disruptions in funding for education.” 303 Kan. at 741.
Beier and Stegall, JJ., not participating.
Michael J. Malone, Senior Judge, and David L. Stutzman, District Judge, assigned.
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Granted.
52 Kan. App. 2d 274 | [
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The opinion of the court was delivered by
Stegall, J.:
William May was an inmate at the Larned Correctional Facility when he was involved in an altercation with another inmate, Jason Dale. May was ultimately disciplined for violating K.A.R. 44-12-301, the regulatory prohibition on fighting. After exhausting his administrative remedies, May sought relief through this K.S.A. 60-1501 petition filed against Sam Cline, the warden of the Hutchinson Correctional Facility where May is currently incar cerated. May alleged his due process rights were violated because the finding by the hearing officer that May violated K.A.R. 44-12-301 was not supported by any evidence. The district court agreed with May, but on appeal, the Court of Appeals reversed the district court. We granted Mays petition for review, and we reverse the Court of Appeals and affirm the district court.
Factual and Procedural Background
K.A.R. 44-12-301 states:
“Fighting or other activity which constitutes violence, or which is likely to lead to violence, is prohibited unless such activity is in self-defense. Violation of this rule shall be a class I offense.”
The facts as established during the hearing are not in dispute, though the legal significance of those facts is contested by the parties as a matter of law. After the altercation between May and Dale had already begun, correctional officer Tracy Guesnier arrived on the scene. Guesnier s disciplinary report states:
“On 11-9-2012 I COI Guesnier Tracy was escorting inmates from west unit to LSH main cafeteria .... I noticed two inmates wrestling and throwing punches at each other .... I yelled several times to break it up, but neither inmate separated and punches were still being thrown. Both inmates wrestled off the sidewalk to the west. Again I was telling both inmates to stop and that I would use the pepper spray. Inmate continued wrestling where from my advantage Dale was the aggressor and his face was toward? me I then used two 1 second burst and inmates were not separating I then used another 1 second spray. Demands were still given to separate and finally Dale said I am done. Both inmates were handcuffed and escorted to central unit. Inmates were Jason Dale #100165, William May #96951.”
At the disciplinary hearing, Guesnier testified his report was accurate and truthful. Guesnier said that he could not tell who was fighting at first and that Dale “seemed to be the aggressor.” Even after several loud commands to break it up and the use of pepper spray, the fight did not stop until Dale said “Tm done.’” Guesnier was asked whether he could tell if May was defending himself and responded, “'No, the fight was already going when I noticed it I have no idea who started it.’ ”
May testified that he was attacked by Dale, and he did not know why. The hearing officers report describes May as stating that he was “just trying to hold on until help arrived but every time [May] would let up Dale would come back at him.” The hearing officer concluded that “with no evidence to prove self-defense” May would “be looked upon as being involved in a fight.”
Upon this evidence, the hearing officer concluded:
"Based on the preponderance of this evidence it is believed to be more true than not that inmate May was involved in violence and that he was involved in a physical altercation with inmate Dale. That there is no evidence available to show that inmate May was simply defending himself. Therefore a finding of guilty was rendered.”
The Reno County District Court conducted a hearing on Mays K.S.A. 60-1501 petition and ultimately issued an order reversing the hearing panels findings as follows:
“[T]he hearing officer could and should have recognized that the respondent had the right of self-defense unless the preponderance of evidence showed that the other inmate was not the aggressor. The government had the burden of proof. Likewise, as to whether the petitioner failed to stop fighting when ordered to do so, the government had the burden of proof to show that the respondent unreasonably continued to fight when he could have complied with the order without reasonable belief that he would receive further blows from the other inmate. The hearing officer made no attempt to evaluate the reasonableness of the petitioner’s stated belief that he was the victim of an aggression by the other inmate and entitled to use self-defense. The hearing officer made no attempt to evaluate whether the petitioner unreasonably failed to stop fighting when he could have done so safely. Therefore, the hearing officer could not have reasonably found the petitioner guilty. The conviction is therefore reversed.”
Cline appealed this ruling, and the Court of Appeals reversed, holding:
“It is clear from the record that there was some evidence to support the hearing officers finding that May was involved in a fight. As was the case in Miller [v. McKune], 38 Kan. App. 2d [810,] 816, [174 P.3d 891 (2006),] the question of self-defense was an issue before the hearing officer because May asserted that he acted in self-defense at the hearing. But, by the decision of guilty of fighting being reached by the hearing officer, it is clear the existence of this defense was resolved against May. Contrary to the findings by the district court, there was no evidence regarding who started the fight. KDOC was not obligated to disprove self-defense, and the hearing officer as the factfinder in a prison disciplinary proceeding resolved this issue.” (Emphasis added.) May v. Cline, No. 110,095, 2014 WL 1708027, at *3 (Kan. App. 2014) (unpublished opinion).
We granted Mays petition for review, and we now reverse the judgment of the Court of Appeals and affirm tire district courts ruling.
Analysis
Disciplinary decisions concerning inmates in the custody of the State are generally not subject to judicial review. K.S.A. 2015 Supp. 77-603(c)(2) (exempting discipline of persons in the custody of the Secretaiy of Corrections from the Kansas Judicial Review Act). To obtain relief, an inmate must demonstrate a constitutional violation. Here, the lower courts properly construed Mays claim as arising under the Due Process Clause of the Fourteenth Amendment to the United States Constitution given that he claims a lack of evidence to support the alleged violation. “The requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board... .” Sammons v. Simmons, 267 Kan. 155, Syl. ¶ 3, 976 P.2d 505 (1999). Moreover,
“[t]his standard is met if there was some evidence from which the conclusion of the administrative tribunal could be deduced. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Sammons, 267 Kan. 155, Syl. ¶ 3.
The United States Supreme Court has also discussed the applicable standard:
“The Federal Constitution does not require evidence that logically precludes any conclusion but the one reached by the disciplinary board. Instead, due process in this context requires only that there be some evidence to support tire findings made in the disciplinary hearing. Although the evidence in this case might be characterized as meager, and there was no direct evidence identifying any one of three inmates as the assailant, the record is not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary.” Superintendent v. Hill, 472 U.S. 445, 457, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985).
Thus, due process is satisfied in the context of an inmate disciplinary proceeding if there is any evidence in the record, even evidence which could be characterized as meager, that could support the conclusion of the disciplinary authority. Due process does not require that the evidence preclude other possible outcomes or conclusions, only that the evidence provides some support for the conclusion reached by the disciplinary authority such that the decision is not arbitrary.
In this case, die outcome turns on what, specifically and as a matter of law, had to be shown to support a finding that May violated K.A.R. 44-12-301. The parties agree, as do we, that the question comes down to which party bears the burden to prove or disprove Mays claim of self-defense. The Court of Appeals panel ruled that “KDOC was not obligated to disprove self-defense.” May, 2014 WL 1708027, at *3. This is consistent with the holding of prior panels of the Court of Appeals. See, e.g., Miller v. McKune, 38 Kan. App. 2d 810, 816, 174 P.3d 891 (2006) (“The question of self-defense was an issue before the hearing officer. But, by the decision of guilty of fighting being reached, it is clear the existence of this defense was resolved against Miller. The prosecution was not obligated to disprove self-defense.”). The Court of Appeals reasoned from this premise to tire logical conclusion that tire “some evidence” standard had been met in Mays case given the undisputed fact that May and Dale were fighting. May, however, continues to challenge the premise itself.
The interpretation of a regulation is a question of law. See Murphy v. Nelson, 260 Kan. 589, 594, 921 P.2d 1225 (1996). Cline asks us to show deference to the agency interpretation of K.A.R. 44-12-301; however, we have recently resoundingly rejected the doctrine of deference to an agency on questions of law. Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013) (doctrine of operative construction has “been abandoned, abrogated, disallowed, disapproved, ousted, overruled, and permanently relegated to the history books”); Coleman v. Swift-Eckrich, 281 Kan. 381, 383, 130 P.3d 111 (2006) (recognizing that the doctrine of operative construction applied to agency interpretations of both statutes and regulations). We therefore owe no deference to an agency’s interpretation of its own regulations and exercise unlimited review over such questions.
At common law, self-defense was always an affirmative defense. “[T]he common-law rule was that affirmative defenses, including self-defense, were matters for the defendant to prove.” Martin v. Ohio, 480 U.S. 228, 235, 107 S. Ct. 1098, 94 L. Ed. 2d 267 (1987). The burden of proof rule arises directly out of the nature of affirmative defenses — i.e., affirmative defenses (or the lack thereof) are neither elements of the alleged offense nor do they negate any element of the offense. Rather, affirmative defenses provide a legally recognized justification for the action such that tire actor cannot be held criminally or civilly liable. See, e.g., United States v. Corrigan, 548 F.2d 879, 883 (10th Cir. 1977) (“An affirmative defense admits the defendant committed the acts charged, but seeks to establish a justification or excuse.”).
The law of self-defense pertaining to criminal acts in Kansas has been modified such that a burden-shifting scheme is now employed. A defendant claiming self-defense must first meet the burden to come forward with some competent evidence in support of the claim, and thereafter, “the state has the burden of disproving the defense beyond a reasonable doubt.” K.S.A. 2015 Supp. 21-5108(c).
But in this case, these rules must give way to the plain language of the regulation we are considering. Here, K.A.R. 44-12-301 clearly and unambiguously makes the absence of self-defense an element of the offense itself. See, e.g., State v. Messer, 278 Kan. 161, 164, 91 P.3d 1191 (2004) (quoting State v. Sweat, 30 Kan. App. 2d 756, 760, 48 P.3d 8 [2002]) (“‘[A]ll crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute.’”). The presence of tire language “unless such activity is in self-defense” establishes a burden on the disciplinary authority to prove the “activity” was not “in self-defense.” See K.A.R. 44-12-301; State v. Longoria, 301 Kan. 489, 518, 343 P.3d 1128 (2015) (State has the burden of proving all elements of the crime charged).
When we evaluate the evidence in the record before us in light of a proper understanding of the regulation May was alleged to have violated, we have no difficulty concluding that there was no evidence whatsoever presented to tire hearing officer that May did not act in self-defense. The quantum of evidence to support a disciplinary action is slight, but even so, the record here discloses nary a scintilla of evidence on which a reasonable hearing officer could conclude that May was not acting in self-defense. This is hardly surprising given that neither the disciplinary authorities nor the hearing officer believed the regulation demanded such evidence. Nevertheless, tire regulation at issue was promulgated by the Department of Corrections and the Department must abide by its language.
May was not accorded due process when he was found to have violated K.A.R. 44-12-301 despite a complete failure of proof of one of the elements of the offense. The judgment of the Court of Appeals is reversed, and the judgment of the district court is affirmed. | [
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Leben, J.:
In late May 2011, Jessi L. Buchanan was working on an assembly line when she tripped and fell, severely fracturing two of the three major bones in her anide. After surgery her anide healed poorly, and she was left with lingering anide pain, stiffness, swelling, and loss of range of motion, all of which cause her to limp and walk with a cane. She claims that her anide fracture and resulting limp have caused injuries to her hip and back. But an administrative law judge and the Kansas Workers Compensation Board disagreed (although two of the five Board members dissented), finding that Buchanan’s accident wasn’t the primaiy cause of her hip and back injuries and awarding her compensation only for the ankle injuiy. Buchanan appeals, arguing that the accident was the primary cause of her hip and back injuries.
The Board relied mostly on the testimony of the court-appointed medical expert, Dr. Pat Do, because he was a neutral party. But because Dr. Do didn’t examine Buchanan’s hip or back, there really is no substantial evidence to support Dr. Do’s opinion testimony about what did—or didn’t—cause Buchanan’s back and hip pain. Additionally, the Board unnecessarily discredited the testimony of Buchanan herself. Thus, we find that the Board’s factual conclusion that Buchanan’s accident wasn’t the primary cause of her hip and back injuries isn’t supported by substantial evidence, and we reverse and remand the Board’s decision.
Factual and Procedural Background
May 22, 2011, was Buchanan’s first day of work on the assembly line at Reser’s, a job she obtained through JM Staffing. Reser’s had put cardboard on the floor to soak up water, and Buchanan tripped on the cardboard and fell, fracturing two of the bones in her right ankle. She had surgery the same day, and Dr. Kurt Knappenberger repaired the fracture with screws and a plate. There’s no question in this case about the ankle fracture itself or whether it was the result of a work accident—the dispute is about Buchanan’s hip and back injuries that she claims resulted from her anide fracture.
Dr. Knappenberger treated Buchanan for 8 months following the surgery. His records show that for the first 2 months, Buchanan didn’t put any weight on her anide; he didn’t instruct her to begin trying to walk on it until her July 22, 2011, appointment. One month later, at Buchanan’s next appointment, Dr. Knappenberger’s physician’s assistant noted that Buchanan was limping and had decreased mobility, swelling, and stiffness. The physician’s assistant prescribed physical therapy at this appointment. Dr. Knappen-berger continued prescribing physical therapy through his last appointment with Buchanan in January 2012. His records show that Buchanan’s physical therapist called on May 21, 2012, to request that he authorize additional appointments, so it appears that Buchanan was participating in physical therapy as late as 1 year after her injury and surgery.
Dr. Knappenberger s records show that as of January 2012, he believed Buchanan wouldn’t recover any further and drat her stiffness and loss of range of motion would likely be permanent, but the records don’t mention any complaints of hip or back pain. At his deposition in March 2014, Dr. Knappenberger testified that this fingering stiffness and loss of range of motion are common following anide fractures and that Buchanan’s ankle fracture was on the more extreme end of the spectrum. He also noted that the stiffness and loss of range of motion would cause Buchanan to limp. Buchanan testified that Dr. Knappenberger had told her there was nothing else he could do for her ankle and recommended that she apply for disability.
As of January 2012, Dr. Knappenberger noted that Buchanan shouldn’t work at all. In October 2012, he assigned her a 13% impairment rating for the injury to her right anide based on the last time he saw her, but he noted that “this rating could change if the examination is any different than my examination of her ankle 10 months ago.” His October 2012 report doesn’t mention work restrictions at all, either to modify January’s complete restriction or to impose new or different restrictions.
Dr. Pedro Murati, Buchanan’s medical expert, examined Buchanan in December 2012; he examined her legs, feet, hips, and back. Dr. Murati testified that Buchanan had reported that her right hip and low back began hurting about 4 months after her sur-geiy (2 months after she began trying to walk) and that she hadn’t had any hip or back pain before her ankle injuiy. He stated that Buchanan’s ankle fracture had been severe and that breaking both the inside and outside bones at the top of the anide can make a full recovery very difficult. Dr. Murati testified that Buchanan’s ankle fracture had caused her to limp and to use a cane to walk. He diagnosed Buchanan with low back pain with signs of radiculopathy, right sacroiliac joint dysfunction, and right trochanteric bursitis. Dr. Murati testified that Buchanans right hip and low back injuries were caused by her limp and wouldn’t improve as long as she continued to limp.
Dr. Do examined Buchanan in April 2014 at the request of the administrative law judge presiding over Buchanan’s workers-compensation claim. Although Buchanan told Dr. Do about her hip and back pain, he only examined her right anide. He noted that her range of motion was moderately restricted, that she had damage to the cartilage in her anide, and that her arthritis, night pain, and trouble walking were consistent with this type of severe anide injury. He testified that it was appropriate for Buchanan to use a cane to walk. In Dr. Do’s opinion, Buchanan should limit standing and walking to no more than 33% of her day. According to Dr. Do, Buchanan s hip and back pain could have been caused by any number of things, including aging, wear and tear, and her limp, and he couldn’t say within a degree of medical certainty which of tírese was the primary cause. Dr. Do also testified that because he wasn’t sure Buchanan’s hip and back pain would be permanent, he couldn’t give an opinion about the prevailing cause of those injuries.
Two experienced vocational experts also testified: Karen Crist Terrill for Buchanan and Steve Benjamin for JM Staffing. Terrill relied primarily on Dr. Murati’s report, which included work restrictions based on all of Buchanan’s injuries: anide, hip, and back. (She also relied on Dr. Knappenberger’s report and a report from a Dr. Hufford, whose report isn’t included in the record.) Based on these reports and on Buchanan’s work history, Terrill concluded that Buchanan wasn’t able to engage in any substantial gainful employment. On the other hand, Benjamin relied primarily on Dr. Dos restrictions, which were based only on Buchanans anide injury, to conclude that there were some jobs that Buchanan could still do. Benjamin’s report confirmed, however, that if he relied on Dr. Murati’s broader restrictions, Buchanan wouldn’t be able to find work. Benjamin also noted that his assessment of the work Buchanan would be able to do didn’t account for her use of a cane.
Buchanan testified before administrative law judge Rebecca Sanders in January 2014. Buchanan has a high-school diploma and training as a welder. She described her work accident and testified that her hip and back pain developed as a result of her ankle fracture. She denied having any hip or back pain before the ankle fracture. She noted that she hadn’t worked since the accident and that she receives Social Security disability benefits. Buchanan testified that she has trouble sleeping, has a hard time getting in and out of the bath, loses her balance when she bends over, can only stand up for 15 minutes at a time, has to elevate her leg when she sits down, can’t bend over to pick up a basket of laundry, and has to lean against the counter to do the dishes.
For reasons not clear in our record, a different administrative law judge (Jerry Shelor, who didn’t see Buchanan testify) made the initial ruling in the case. He awarded Buchanan temporary total disability and future medical treatment for her right anide but found that her hip and back injuries weren’t compensable because her work accident wasn’t the prevailing factor in causing them. The judge relied on Dr. Do’s conclusions because Dr. Do was a neutral, court-appointed expert.
Three members of the Kansas Workers Compensation Board affirmed the award over the dissent of the other two members. The majority found that Buchanan wasn’t completely credible and accepted Dr. Do’s testimony because he was a neutral expert. The dissent, on the other hand, argued that Dr. Do had misunderstood the prevailing-factor analysis and found Dr. Murati’s opinion more persuasive because he had actually examined Buchanan’s hip and back.
Buchanan has appealed to our court.
Analysis
Buchanan argues that the Board wrongly determined that her work accident wasn’t the prevailing factor in causing her hip and back injuries.
We review the Boards order under the Kansas Judicial Review Act, K.S.A. 77-601 et seq. K.S.A. 2015 Supp. 44-556(a). We may grant relief only if, among other reasons not relevant here, the Board has wrongly interpreted or applied the law or if the Board’s findings aren’t supported by substantial evidence. K.S.A. 2015 Supp. 77-621(c)(4), (7). We have unlimited review over questions involving the interpretation of a statute, owing no deference to the Board’s interpretation. Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs., 290 Kan. 446, 457, 228 P.3d 403 (2010). Substantial evidence is evidence that a reasonable person would accept as sufficient to support a conclusion. Herrera-Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, 363, 212 P.3d 239 (2009). We review the Board’s factual findings based on tire record as a whole, including both evidence that supports its findings and evidence that detracts from its findings. K.S.A. 2015 Supp. 77-621(d). While we do not reweigh the evidence or engage in unlimited review, we do consider ‘whether the evidence supporting the agency’s decision has been so undermined by cross-examination or other evidence that it is insufficient to support the agency’s conclusion.” Herrera-Gallegos, 42 Kan. App. 2d at 363.
Throughout its brief, JM Staffing states that the Board’s determination—that Buchanan didn’t prove that her hip and back injuries are compensable—is a negative finding that we can disturb only if the Board arbitrarily disregarded undisputed evidence or relied on some extrinsic consideration such as bias, passion, or prejudice. In support of its position, JM Staffing cites a 2008 Kansas Supreme Court decision, Hall v. Dillon Companies, Inc., 286 Kan. 777, Syl. ¶ 3, 189 P.3d 508 (2008), but doesn’t mention the 2009 statutory change to K.S.A. 77-621 that eliminated tire negative-findings standard. See K.S.A. 2015 Supp. 77-621(c)(7), (d) (requiring that the reviewing court consider all the evidence, including evidence that “detracts from” the agency’s findings). JM Staffing also leaves out the several opinions our court has issued since 2009 noting this change. E.g., Wimp v. American Highway Technology, 51 Kan. App. 2d 1073, 1076-77, 360 P.3d 1100 (2015); Olds-Carter v. Lakeshore Farms, Inc., 45 Kan. App. 2d 390, 395, 250 P.3d 825 (2011); Herrera-Gallegos, 42 Kan. App. 2d at 362. In our review, we must consider all of the evidence in the record and decide whether it’s sufficient to support die Boards conclusions. See K.S.A. 2015 Supp. 77-621(d).
Changes to the Workers Compensation Act are also important in this appeal. Since May 15, 2011, the Act has provided that an injury caused by an accident only “arise[s] out of employment” if there is a “causal connection between the conditions under which the work is required to be performed and the resulting accident” and “the accident is the prevailing factor causing the injury, medical condition, and resulting disability or impairment.” (Emphasis added.) K.S.A. 2015 Supp. 44-508(f)(2)(B); L. 2011, ch. 55, sec. 5. The addition of die prevailing-factor test is one part of a set of larger changes to die law: employees can no longer recover for injuries that are solely aggravations or accelerations of preexisting conditions. See Le v. Armour Eckrich Meats, 52 Kan. App. 2d 189, 193-94, 364 P.3d 571 (2015). Because a “prevailing factor” is “the primary factor, in relation to any other factor,” the new test is especially relevant when an employee suffered a work accident but also had some preexisting condition. K.S.A. 2015 Supp. 44-508(g); see, e.g., Le, 52 Kan. App. 2d at 200 (considering whether chronic pain following a back fracture was caused by preexisting osteoporosis or the work accident that caused the fracture). An employee can only recover if the accident, and not the preexisting condition, was tire primary cause of injury. See Le, 52 Kan. App. 2d at 198-200; K.S.A. 2015 Supp. 44-508(f), (g).
Here, Buchanans initial ankle fracture is undisputedly a com-pensable injury caused by an accident arising out of her employment: she was at work, where cardboard had been placed on the floor to soak up water, and she tripped on the cardboard, fracturing her ankle. The fall was caused by work conditions (the cardboard) and was the prevailing factor in her ankle fracture (in fact, the only factor, since she had no preexisting ankle injuries).
Additionally, since at least 1972, Kansas caselaw has provided that injured employees are also entitled to compensation for any secondary injuries that are the natural and probable result of the primary injury: this is known as the secondary-injury rule. E.g., Casco v. Armour Swift-Eckrich, 283 Kan. 508, 515-16, 154 P.3d 494 (2007); Jackson v. Stevens Well Service, 208 Kan. 637, 643, 493 P.2d 264 (1972). No Kansas court has yet addressed how or whether the secondary-injury rule has been changed by 2011 statutory amendments, but nothing in the prevailing-factor test is incompatible with the secondary-injury rule. Both deal with causation in slightly different ways: the prevailing-factor test asks about the cause of an injury, particularly in relation to other possible causes, while the secondary-injury rule asks whether the primary injury caused the secondary one. Compare K.S.A. 2015 Supp. 44-508(g) with Casco, 283 Kan. at 515-16.
While we are not bound by its interpretation, the Board has taken the position that the 2011 amendments didn’t change the secondary-injury rule but added the prevailing-factor analysis: a secondary injury must be both tire natural and probable consequence of the primary injury and caused primarily by the work accident. E.g., Dawe v. The Arnold Group, No. 1,067,719, 2014 WL 2616674, at *4 (Kansas Workers Compensation Board 2014) (applying prevailing-factor analysis and secondary-injury rule, finding tiiat neck injury caused by compensating for an accidental shoulder injury was the natural and probable consequence of the shoulder injury and the work accident was the prevailing factor); Griffie v. Watson Services, No. 1,064,916, 2014 WL 889875, at *6-7 (Kansas Workers Compensation Board 2014) (applying prevailing-factor analysis and secondary-injury rule, finding that left shoulder injury was caused by a genetic defect, not by compensating for right shoulder injury that had been caused by work accident); Finton v. Peninsula Gaming Partners, No. 1,064,118, 2013 WL 4779986, at *3-4 (Kansas Workers Compensation Board 2013) (applying prevailing-factor analysis and secondary-injury rule, finding that work accident was prevailing factor in a head injury that resulted from fainting after cutting.finger at work and seeing blood). Because we view the secondary-injury rule and the prevailing-factor analysis as compatible and because the legislature didn’t mention the secondary-injuiy rule in the 2011 amendments, we agree with the Board: all injuries, including secondary injuries, must be caused primarily by the work accident. See State v. Quested, 302 Kan. 262, 283, 352 P.3d 553 (2015) (“[Cjourts generally presume that the legislature acts with full knowledge of existing law.”).
So if Buchanan’s hip and back problems are compensable, they must (1) have been caused primarily by tire work accident that caused the ankle fracture and (2) be the natural and probable consequence of the ankle fracture.
With these criteria in place, let’s turn to the evidence. There was absolutely no evidence that Buchanan had any problems with her hip or back before the May 2011 anide injury. Dr. Do suggested that Buchanan’s hip and back pain may have been due to aging or “wear and tear,” but that opinion is just speculation: he didn’t examine her hip or back and said he had no reason to think she had any preexisting hip or back conditions, either from Buchanan herself or from her medical records. He ultimately testified that he simply couldn’t say whether her hip and back pain was caused by the ankle fracture. Dr. Murati, on the other hand, examined Buchanan’s hip and back and testified that the injuries to these areas were caused by the ankle fracture. Buchanan herself denied any preexisting hip or back problems, and the medical records don’t show any either.
What does the evidence show about the cause of Buchanan’s back and hip problems? Significantly, there’s no real question that Buchanan’s ankle fracture caused her to have a limp. Two months after surgery, Dr. Knappenberger told Buchanan that she should start trying to put weight on her right ankle. Dr. Knappenberger’s records show that at her next appointment, after 1 month of weight bearing, Buchanan was limping and had decreased mobility, stiffness, and swelling in her ankle. Two months later, in October 2011, Buchanan was still limping and complaining of pain in her ankle. Dr. Knappenberger testified that Buchanan’s limp could be inferred from the stiffness of her ankle; in other words, her decreased range of motion caused her to limp. Buchanan’s stiffness, pain, and limp were still present in January 2012, at her last appointment with Dr. Knappenberger, and he noted that the stiffness and limping would likely be permanent: “The problem is not changing in character. The pain is aggravated by walking and standing. There are no relieving factors. Associated symptoms include difficulty going to sleep, feeling of instability, lack of joint motion, limping, night pain, stiffness and tenderness.” (Emphasis added.) Dr. Knappenberger also noted: “It is clear that there will be permanent stiffness and loss of [range of motion].”
Both Dr. Murati and Dr. Do also noted that Buchanan had a limp and used a cane to walk, although Dr. Dos testimony on this point is not completely clear. Dr. Murati examined Buchanan in December 2012, about a year and a half after her injury. He noted that she had a “severe antalgic gait,” also known as a limp, and that her use of a cane was appropriate. Dr. Do examined Buchanan in April 2014, 3 years after her injury. When asked if Buchanan had an altered gait, Dr. Do stated: “In my exam section I did not note that she had an altered gait.” But Dr. Dos report does say that Buchanan was using a cane to walk, and he testified that her use of a cane was appropriate. Dr. Do also noted that she had moderate range-of-motion deficits, which Dr. Knappenberger had testified would cause a limp. All of this evidence, taken together, establishes that Buchanan has a limp that is likely to be permanent, caused by the stiffness and loss of range of motion that resulted from her anide fracture.
Next, there was strong evidence that Buchanans limp caused her hip and back pain: Dr. Murati, the only doctor involved in this case who actually examined Buchanan’s hip and back, testified that Buchanans hip and back pain was caused by her undisputed limp. Buchanan told Dr. Murati that her hip and back began hurting about 4 months after her surgery, or 2 months after she began bearing weight on her injured ankle—in other words, 2 months after she began limping. Dr. Murati diagnosed the hip and back injuries as low back pain with signs of radiculopathy, right sacroiliac joint dysfunction, and right trochanteric bursitis, all caused by the limp, which was a result of the stiffness and swelling in her right anide. Dr. Knappenbergers testimony supports the proposition that stiffness and swelling in the ankle would cause a limp. Dr. Murati testified that as long as Buchanan was limping, her back wouldn’t heal. And Dr. Knappenberger indicated that the symptoms causing Buchanan’s limp were likely to be permanent.
Buchanan also testified that her hip and back pain are connected to her ankle injury. She said she hadn’t had problems with her right leg or ankle, her hip, or her back before the accident at Reser’s. She testified that her leg problems had caused the problems in her hip and back:
“Q. What do you believe caused your back and your hip to become problematic?
“A. ... I believe its because of my leg that twisted my—my leg got twisted and it messed my hip up some how some way, and my leg is land of turning in. It doesn’t work right. In other words, I just kind of feel like my leg got twisted and messed my hip up.
"Q. What about your back?
“A. That’s what causes my back to hurt.
“Q. Your hip causes your back to hurt?
“A. Yes, the whole thing, yeah.”
Despite this testimony and the medical evidence supporting it, the Board concluded that Buchanan’s hip and back problems were not primarily caused by the work-related accident. The Board based its conclusion on two key pieces of evidence. First, Dr. Do, the court-appointed doctor, had said in his written report that the ankle injury didn’t cause the hip and back pain “from a prevailing factor standpoint.” Second, the Board discounted Buchanan’s testimony on this point because it found no evidence that treatment was prescribed for her hip or back pain, and the Board concluded that her testimony wasn’t credible because she contradicted herself about when her hip and back pain began: “Claimant testified her back and hip symptoms began when her accident occurred, but claimant told Dr. Murati her hip and back pain began around four months following her accident.” We do not believe this evidence constitutes sufficient, substantial evidence to support the Board’s conclusion that Buchanan’s hip and back injuries were not caused by the work-related ankle injury.
Dr. Do’s conclusion does not stand up in fight of his testimony that he didn’t examine Buchanan’s hip or back and his ultimate testimony that he couldn’t give an opinion on causation under the prevailing-factor analysis. Asked what the prevailing factor would be if Buchanan had had no hip or back problems before the anide injury and had been limping and using a cane since May 2011, Dr. Do said he “really can’t say within a reasonable degree of medical probability one way or the other per se.” Similarly, having said that in his view a claimant must have “permanent structural change” or “at least a permanent aggravation” to pass the prevailing-factor test, Dr. Do agreed that he could not give an opinion on the prevailing-factor question because he didn’t know whether Buchanan had any permanent damage to her back or hips. Dr. Do’s testimony does not provide substantial evidence to support the Board’s conclusion.
The Board’s problem with Buchanan’s testimony seems picayune when placed in context. Dr. Murati reported that Buchanan told him when he saw her in December 2012 that her hip and back pain began about 4 months after the accident; the Board accepted that testimony. Then the Board concluded that Buchanan had told a completely different story when she gave this testimony in January 2014:
“Q. Tell us about problems with your right anide, why you use a cane.
“A. The pain and the swelling. My foot won’t pivot. It’s messed my hip up. My hip hurts ever since I’ve had the accident. I’ve had a lot of pain to my hip and lower back.” (Emphasis added.)
From that 2014 testimony, the Board concluded that Buchanan had been so inconsistent in her testimony about when she began to have hip and back pain that her testimony should be dismissed as unbelievable.
In context, Buchanan was asked—nearly 3 years after the accident-—to explain why she used a cane. In response, she said that her hip had been hurting “ever since . . . the accident.” The Board interpreted this answer to be a statement that her hip and back pain began at the exact same time as the ankle injuiy. But she wasn’t responding to a question about when her back and hip began hurting. And nearly 3 years after the accident, a person could easily say that her hip had been hurting since the accident without even thinking about the relatively brief time (2 months) after surgery when she wasn’t allowed to put any weight on her leg. That same person could easily overlook the following month or 2 when, after beginning to walk, others observed her limping and showing signs of decreased mobility, stiffness, and swelling—all preceding the hip and back pain she had consistently reported from 4 months after the accident and surgery (September 2011) until her 2014 testimony. In context, without a specific question about exactly when the hip and back pain began, a witness could quite easily say that she’d had it since the accident and surgery. Her response was an explanation about why she used a cane—something she attributed to the back and hip pain caused by the accident—not a detailed chronology of events. The Boards decision to disregard her testimony as wholly unreliable is not supported by substantial evidence.
In sum, then, the Board could not rely on Dr. Do’s testimony to determine whether Buchanans hip and back pain was caused by the ankle injury and could not altogether disregard Buchanan’s testimony, especially on points that were corroborated by others, such as her consistent limp and the decreased mobility, stiffness, and swelling. While it’s true that the records don’t show any specific treatment for her hip and back pain (although Buchanan testified that physical therapists addressed it), there’s also no evidence from any doctor that any treatment would have been useful.
We recognize that we do not make credibility determinations, but we are required to review the credibility determinations made by the Board as we determine whether substantial evidence supports the Boards decision. See K.S.A. 2015 Supp. 77-621(c)(7), (d). Here, given that Dr. Do did not examine Buchanan’s hip or back and that Buchanans testimony cannot be disregarded for an overall lack of credibility based on the testimony cited by the Board, we are left with Dr. Murati’s causation opinion and substantial evidence supporting it. There’s no suggestion in the record on appeal that Buchanans pain isn’t real, and there was evidence that her ankle stiffness and limp are likely to be permanent and that her back won’t heal as long as she’s limping. Dr. Murati’s diagnosis of low back and hip conditions, because it’s based on an actual examination of Buchanan’s back and hip, deserves more weight than Dr. Do’s opinion. Neutrality isn’t the only marker of credibility; an expert’s conclusions, to be reliable, should be based on more than speculation. See K.S.A. 2015 Supp. 77-621(d).
The Board said that the work accident wasn’t tire prevailing factor in causing the hip and back injuries—in other words, that it wasn’t the primaiy cause, in relation to other causes. See K.S.A. 2015 Supp. 44-508(g). But there was no evidence of other causes. There was only Dr. Do’s unfounded supposition that her hip and back injuries might have been caused by aging or wear and tear rather than by her limp. The Board’s actual conclusion, based as it was on Dr. Do’s testimony, seems to have been that Buchanan’s hip and back simply weren’t injured. But there was plenty of evidence from Buchanan herself and from Dr. Murati that she suffers from significant pain in her right hip and low back. See Hanson v. Logan U.S.D. 326, 28 Kan. App. 2d 92, 95, 11 P.3d 1184 (2000) (a claimant’s testimony, standing alone, is sufficient to prove her condition), rev. denied 270 Kan. 898 (2001).
We should also note that the evidence shows that Buchanan’s hip and back injuries were the natural and probable result of her ankle injury. See Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 197-98, 201, 547 P.2d 751 (1976) (injury to claimant’s knee caused change in posture and gait, which resulted in a disability in claimant’s back). Dr. Knappenberger’s records show that he thought, as of 8 months after surgery, that Buchanan’s stiffness and loss of range of motion were likely to be permanent. He testified that these symptoms would cause her to limp. Dr. Murati testified that Buchanan’s limp caused the hip and back pain, which wouldn’t heal as long as she continued to limp. There was no evidence of any other accident— and no evidence of any preexisting condition—that could have caused the hip and back pain.
Finally, JM Staffing argues that Buchanan isn’t entitled to future medical expenses for either her ankle injury or for her hip and back pain. The Board awarded Buchanan future medical expenses for her ankle, based on Dr. Murati’s recommendations, and JM Staffing abandoned its argument against that award when it failed to file a cross-appeal. State v. Novotny, 297 Kan. 1174, 1181, 307 P.3d 1278 (2013); see K.S.A. 2015 Supp. 60-2103(h) (to obtain appellate review of adverse rulings, appellee must file notice of cross-appeal). JM Staffing could argue that Buchanan isn’t entitled to future medical expenses for her hip and back, but that argument fails because we have found that Buchanans hip and back pain were caused by the work accident and are compensable.
We reverse and remand to the Board for an award consistent with our conclusions that the ankle fracture was the prevailing cause of Buchanan’s hip and back pain and that the hip and back pain is the natural and probable consequence of the anide fracture. | [
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Hill, J.:
In the third year of the pendency of his medical malpractice lawsuit, Joel Burnette killed himself. His heirs and his estate are now pursuing a wrongful death claim. They received a money judgment after a jury found a doctor, Kimber Eubanks, M.D., and a clinic, PainCARE, P.A., negligent.
The doctor and the Clinic appeal, contending the trial court improperly instructed the jury because its causation instruction said: “A party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the claim(s) for damages.” In their view, this instruction is erroneous when applied to wrongful death cases because the statute authorizing wrongful death claims only states “caused” and does not use the phrase “contributed to.”
Recovery for negligence in Kansas is governed by principles of comparative negligence. We hold that in wrongful death claims, one who contributes to a wrongful death is a cause of that death as contemplated by the wrongful death statute. We reject any construction of the wrongful death statute to mean that only those who are the sole cause of a wrongful death can be pursued for damages under the wrongful death statute.
We must also address questions of the admissibility of certain opinion evidence and the request for a certain type of damage. Additionally, we examine the propriety of allowing an exhibit to be taken back with the jury during its deliberations and a brief reference to insurance made during the voir dire examination of potential jurors. In the end, we affirm.
Joel sought relief at a pain clinic.
In May 2008, Vernon “Joel” Burnette sought treatment at Pain-CARE, P.A., for his chronic lower back pain. We will refer to The PainCARE, P.A., as the Clinic. Subsequently, Dr. Daniel Brun-ing treated Joel with steroid injections to the facet joints on the right side of Joels back at several thoracic and lumbar vertebrae. Dr. Bruning saw Joel again on December 15, 2008, where he performed additional facet joint injections on the right side, together with a piriformis muscle injection.
A little over a month later, Joel returned to the Clinic. This time Dr. Kimber Eubanks performed an epidural steroid injection and bilateral trochanteric bursa injections in the L5-S1 area.
On January-12, 2009, Erich Heifer, a physical therapist at the Clinic, performed a physical therapy assessment on Joel. Heifers notes indicated the presence of kyphosis and edema on Joels back between the L4 and SI vertebrae. Kyphosis is a change in the bony alignment of the spine itself. Edema means swelling or fluid retention in a certain region of the body and can indicate the possibility of an infection. The next day, Joel returned to see Dr. Eubanks at the Clinic. Dr. Eubanks performed an L5-S1 epidural steroid injection on the right side of Joels spine.
Just a week later, on January 21, 2009, Joel went to tire emergency room at St. Luke’s Hospital suffering from fever, headache, and a stiff neck. Dr. Sarah Linderman performed a lumbar puncture seeking a spinal fluid specimen, which produced green, cloudy puss. Evidently, the epidural steroid injection to Joel’s back had passed through the edema, which was infected, causing the infection to spread. As a result, Joel contracted bacterial meningitis— an inflammation of the meninges covering the spinal cord. This developed into arachnoiditis, an incurable disease of the central nervous system. The arachnoiditis caused many problems for Joel. He suffered from pain, and he had problems with his balance, bowel function, gait, and walking. It produced dizziness, fatigue, and sexual dysfunction.
Joel seeks legal compensation.
In December 2010, Joel filed a medical negligence claim against Dr. Eubanks, Dr. Bruning, and the Clinic alleging that the negligent treatment by all three caused his injuries and damages. Dr. Bruning was later dismissed from the lawsuit.
Joel’s negligence claims can be condensed into two theories. Dr. Eubanks was negligent by giving Joel a lumbar steroid injection despite signs and symptoms of a localized infection. By pushing the needle through the infection and beneath the dura, tire infection was spread into Joel’s spinal fluid and resulted in arachnoiditis. The Clinic was liable through the negligence of its employee, Erich Heifer, the therapist who was negligent when he failed to report to Dr. Eubanks the presence of kyphosis and edema on Joel’s back. Also, the nursing staff failed to note Joel’s reports of a raised or swollen area on his lower back.
As the case slowly progressed, Joel committed suicide on February 12, 2013. He left a note to his parents, which revealed that he was taking his life because he “couldn’t five one more day with this pain.” Joel further stated, “I tried. So damn hard. I tried. For three long years I tried. And now, I’m tired. So tired. Tired of the pain. Tired of the frustration. Tired of failing. Tired. So very, very tired.”
Eventually, the trial court substituted Joel’s heirs—-his parents— Vernon and Gail Burnette, and his estate as successor plaintiffs in the lawsuit. They, in turn, filed an amended petition asserting a wrongful death claim, contending that Joel committed suicide due to pain associated with the arachnoiditis he suffered following tire substandard treatment by Dr. Eubanks and the Clinic.
Before trial, Heifer, the therapist at the Clinic, acknowledged during his deposition that notes of his January 12, 2009, treatment of Joel, which he considered accurate, indicated the presence of an area of kyphosis and edema on Joel’s back between the L4 and SI vertebrae. On an anatomical drawing of the back, marked as deposition exhibit 5, Heifer drew two circles in the L4-S1 areas in which he observed kyphosis and edema on Joels back. Defense counsel objected on the basis of speculation but clarified that to the extent the markings were an “approximation” there was no objection. When asked, Heifer described a red circle he had marked on Exhibit 5 as “the circle where I, based on the evaluation, saw the edema between L4 and SI.” Heifer clarified that he remembered the edema on Joels back was located between L4 and SI in terms of the upper and lower limits of Joel’s spine, but he did not recall its location laterally and the circle he had drawn on Exhibit 5 depicting the area of edema was a “general approximation.”
We recount some pertinent trial events.
Dr. Eubanks and the Clinic sought to exclude Exhibit 5 from Heifer’s deposition from admission into evidence at trial on the basis that the markings on Exhibit 5 were based solely upon Heifer’s review of his notes, not upon his independent recollection. Heifer had admitted the marks he made might not have accurately shown how far the edema extended laterally. The district court denied the motion to exclude Exhibit 5, finding that it was not improper for Heifer to rely on his notes to mark on the drawing and that any argument regarding how far the edema extended laterally was an argument for the jury.
During voir dire questioning, a prospective juror made an unsolicited comment regarding insurance. Defense counsel moved to strike the entire venire panel. The district court removed the prospective juror, gave a limiting instruction, and denied the motion to strike the panel. When Heifer testified at trial, Exhibit 5 from Heifer’s deposition was marked as Plaintiffs’ Exhibit 114 and admitted over defense counsel’s objection. Plaintiffs’ Exhibit 114 was displayed during trial and allowed to go to the jury room during the jury’s deliberations.
The juiy returned a verdict finding for the Burnettes on liability, assessing 75 percent of the fault to Dr. Eubanks and 25 percent to the Clinic. No fault was attributed to Joel. The jury awarded total damages of $2,060,317.84 (medical expenses: $465,757.84; economic loss [lost income]: $134,560; noneconomic loss: $1,460,000) to Joel’s estate, and $820,062 (past loss [of] attention, care, and loss of a complete family: $50,000; future loss of attention, care, and loss of a complete family: $500,000; funeral expenses: $20,062; past noneconomic loss: $50,000; future noneconomic loss: $200,000) in total damages to the Burnettes.
After applying the $250,000 statutory damage cap under K.S.A. 60-19a02(d) to tire jury’s award of $1,460,000 for the noneconomic loss suffered by Joel’s estate, the district court entered judgment in favor of Joel’s estate against Dr. Eubanks for $637,738.38 and against the Clinic for $212,579.46. The district court entered judgment in favor of the Burnettes against Dr. Eubanks for $615,046.50 and against the Clinic for $205,015.50.
We reject the claim that one who contributes to a wrongful death is not liable for that death.
Dr. Eubanks and the Clinic contend that the trial court must be reversed because it instructed the jury in this case that a “party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the claims for damages.” In their view, that statement of tire law is inaccurate when dealing with wrongful death actions. They base their argument on K.S.A. 2015 Supp. 60-1901(a). It simply states:
“If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom
Dr. Eubanks and the Clinic argue that the wrongful death statute limits liability only to tiróse who cause a wrongful death and does not extend to those who contribute to the death. Contending this is a plain language question, they argue this means such actions must be limited to those instances when there is but one cause of the wrongful death.
The wrongful death statute expresses the policy that one can recover for wrongful death. The law of comparative negligence controls how one can recover for wrongful death.
In Kansas, recovery for various types of losses is controlled by the various laws that govern actions arising from that type of loss. Thus, motor vehicle negligence actions are controlled by motor vehicle law. Product liability actions are controlled by the laws dealing with product liability. Medical negligence claims are controlled by the law of medical negligence. The wrongful death statute controls none of these subjects even though death can be a result in all of those cases.
A brief review of comparative negligence law is helpful here. Its enactment took Kansas tort law into a new direction. One of the results of enacting comparative negligence in 1974 was that plaintiffs are now not barred from recovery for their injuries and damages if they are negligent as they would have been in the days when the doctrine of contributory negligence was the law of the land. Also, the doctrine of joint and several liability among joint tortfeasors is now extinct. Under that doctrine, a joint tortfeasor could be responsible for all of the damages even though his or her negligence was less than that of another wrongdoer.
The new doctrine erased the old. The law was a comprehensive reform. With comparative negligence, damages are awarded on tire basis of a tortfeasor s percentage of fault. One is responsible for the amount of harm he or she caused and not more. See Brown v. Keill, 224 Kan. 195, 197, 580 P.2d 867 (1978).
Recognizing that there are many forces that can create harm in a single incident, the legislature embraced comparative negligence as a means for just compensation for negligent wrongs. Indeed, the Supreme Court has held rights and liabilities should be determined in one action:
“[T]he Kansas comparative negligence act is a multipurpose act which goes far beyond a basic comparison of the contributing negligence of each of the parties to the cause of an accident or injury. The act comprehensively provides machinery for drawing all possible parties into a lawsuit to fully and finally litigate all issues and liability arising out of a single collision or occurrence, and apportion the amount of total damages among those parties against whom negligence is attributable in proportion to their degree of fault.
“[W]e believe it was the intent of the legislature to fully and finally litigate all causes of action and claims for damage arising out of any act of negligence subject to K.S.A. 60-258a. The provision for determining the percentage of causal negligence against each person involved in a negligence action contemplates that the rights and liabilities of each person should be determined in one action.” Enrich v. Alkire, 224 Kan. 236, 237-38, 579 P.2d 1207 (1978).
The comparative negligence statute, K.S.A. 2015 Supp. 60-258a(a), states:
“The contributory negligence of a party in a civil action does not bar that party or its legal representative from recovering damages for negligence resulting in death, personal injury, property damage or economic loss, if that party’s negligence was less tiran the causal negligence of tire party or parties against whom a claim is made
In fact, that statute goes on to direct that “[i]f a party claims damages for a decedents wrongful death, the negligence of the decedent, if any, must be imputed to that party.”
Clearly then, that statute shows the legislature intended that wrongful death recovery should be governed by comparative fault principles. The only bar to recovery that remains is if the decedents negligence is greater than the causal negligence of the other parties to the incident that resulted in the death.
Caselaw recognizes that comparative fault law applies in wrongful death cases. See Siruta v. Siruta, 301 Kan. 757, 775, 348 P.3d 549 (2015). In addition, it applies in wrongful death medical malpractice actions. See Maunz v. Perales, 276 Kan. 313, 326, 76 P.3d 1027 (2003).
Dr. Eubanks and the Clinic invite us to err. If we were to agree with them, it would mean, in a practical sense, that there could never be any recovery for a wrongful death when there are complex facts and several different forces are engaged in an incident that results in death. Accumulated wrongs can cause a death just as surely as one.
Does this mean only one tortfeasor can be held responsible? If we were to adopt the view urged upon us by Dr. Eubanks and the Clinic, it would. If several people contribute to a wrongful death, none would be legally responsible because they could not be the sole cause of death, even though all contributed to the death.
We do not share this limited .view of the wrongful death statute that isolates it from our primary system of recovery for negligence—comparative fault. Dr. Eubanks and the Clinic ask us to ignore 30 years of precedent and reverse the district court. This we will not do.
We must interpret the wrongful death statute and those dealing with comparative negligence with a view of making them work in harmony in order to achieve the goals of both pieces of legislation. When construing statutes to determine legislative intent, we do so with a view of reconciling and bringing all provisions into workable harmony if possible. Friends of Bethany Place v. City of Topeka, 297 Kan. 1112, 1123, 307 P.3d 1255 (2013).
A look at the language used here persuades us further to reject Dr. Eubanks’ theory. Blacks Law Dictionary 265 (10th ed. 2014) defines contributing cause as “a factor that—though not the primary cause—plays a part in producing a result.” If we employ that definition in this case, the jury must have concluded that the negligence of the Clinic employees and the negligence of Dr. Eubanks were contributing causes. That is, both played a part in producing the arachnoiditis which led to Joel’s death.
We hold that a contributing cause is a cause as the term is used in the wrongful death statute, K.S.A. 60-1901. In other words, if your negligence contributes to the cause of death and it is foreseeable, then you can be held liable for that death in proportion to your percentage of fault.
We see no error in the jury instruction used hy the court on this point.
Dr. Eubanks asserts that the district court erred by using language from PIK Civ. 4th 105.01 in Instruction No. 11 which defined the causation élement for the Burnettes’ medical malpractice claim seeking wrongful death damages. He acknowledges that the issue presented here on appeal only “involves the legal appropriateness of the instruction.” Thus, this issue centers solely on whether Instruction No. 11 accurately stated the law.
Appellate courts employ a four-step inquiry when addressing challenges to juiy instructions. First, this court exercises unlimited review over questions of appellate jurisdiction and issue preservation. Second, we have unlimited review to determine whether the instruction was legally appropriate. Third, if this court finds the instruction was legally appropriate, we look to the record in the light most favorable to the requesting party to determine whether sufficient evidence supported giving the instruction. Finally, if the district court erred, we determine whether the error was harmless under State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). See Foster v. Klaumann, 296 Kan. 295, 301-02, 294 P.3d 223 (2013).
Basically, a trial court is required to give an instruction supporting a party’s theory of the case if there is sufficient evidence supporting the theory. Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 419, 228 P.3d 1048 (2010). This means that in order for the Burnettes to establish Dr. Eubanks’ and the Clinic’s responsibility, they had to establish a prima facie case of negligence.
As with all negligence cases, the Burnettes’ burden began with their obligation to establish that Dr. Eubanks and the Clinic owed a duty to Joel. See Miller v. Johnson, 295 Kan. 636, Syl. ¶ 15, 289 P.3d 1098 (2012). The district court relied on PIK Civ. 4th 123.12 (Duty of Medical Specialist) and PIK Civ. 4th 123.01 (Duty of Health Care Provider) in Instruction Nos. 13 and 14, respectively, to inform the jury about the applicable standards of care for each party and that a violation of this standard constituted negligence.
To explain the causation element of the case to tire jury, the Burnettes requested an instruction on fault identical to Instruction No. 11 ultimately given by the district court. Instruction No. 11 is identical to the PIK instruction’s definition for “fault” found in PIK Civ. 4th 105.01, entitled, “Comparative Fault Theory and Effect.” Specifically, the district court instructed the jury: “A parly is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about tire clainr(s) for damages.” (Emphasis added.)
The Notes on Use to PIK Civ. 4th 105.01 state: “This instruction should be used in every comparative fault case.” Instruction No. 12 mirrored tire PIK instruction for explaining the verdict in a comparative fault case—PIK Civ. 4th 105.03—or to which parties the jury could assign fault—Dr. Eubanks, the Clinic, or both. The Notes on Use for this PIK instruction state that this instruction “applies to all causes of action where there is a question of more than one of the parties being negligent.” PIK Civ. 4th 105.03, Notes on Use.
A legally appropriate instruction fairly and accurately states the applicable law when viewed in isolation and is supported by the particular facts of the case. Dickerson v. Saint Luke’s South Hospital, Inc., 51 Kan. App. 2d 337, 348, 346 P.3d 1100 (2015) (citing State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 [2012]). This court exercises unlimited review when deciding whether the instruction was legally erroneous. See Foster, 296 Kan. at 301.
Dr. Eubanks points out that the wrongful death statute, K.S.A 60-1901, speaks in terms of “caused” and does not specifically use the phrase “caused or contributed.” That statute provides: “If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he or she lived . . . .” (Emphasis added.) K.S.A 60-1901.
In his challenge to Instruction No. 11, Dr. Eubanks argues that the PIK Civil Advisory Committee s decision to include the word “contributed” in the definition of fault resulted in “a fatally flawed statement of the rules of proximate cause” in wrongful death cases arising from allegations of medical malpractice. This is based on the fact that the verb “contributed” is not used in the wrongful death statute; only the verb “caused” is used.
Some legal base points need to be set here. Kansas follows the traditional concept of proximate cause, i.e., “individuals are not responsible for all possible consequences of their negligence, but only those consequences that are probable according to ordinary and usual experience.” Hale v. Brown, 287 Kan. 320, 322, 197 P.3d 438 (2008); accord Sly v. Board of Education, 213 Kan. 415, 424, 516 P.2d 895 (1973).
Kansas appellate courts have consistently defined “proximate cause” as that 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, die injury being the natural and probable consequence of the wrongful act.” Idbeis v. Wichita Surgical Specialists, 285 Kan. 485, 499, 173 P.3d 642 (2007).
This traditional statement of proximate cause incorporates concepts that fall into two categories: causation in fact and legal causation. See, e.g., Corder v. Kansas Board of Healing Arts, 256 Kan. 638, 655, 889 P.2d 1127 (1994); Hammig v. Ford, 246 Kan. 70, 72, 785 P.2d 977 (1990). To prove causation in fact, a plaintiff must prove a cause-and-effect relationship between a defendant’s conduct and the plaintiff’s loss by presenting sufficient evidence from which a jury could conclude that more likely than not, but for the defendant’s conduct, the plaintiff’s injuries would not have occurred. See Baker v. City of Garden City, 240 Kan. 554, 559, 731 P.2d 278 (1987).
To prove legal causation, the plaintiff must show that it was foreseeable that the defendant’s conduct might create a risk of harm to the victim and that the result of that conduct and contributing causes were foreseeable. Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 421, 228 P. 3d 1048 (2010).
That is what the Burnettes proved here—causation in fact and legal causation. The ultimate question the jury had to decide here was whether Joel’s death was a result of Dr. Eubanks’ negligence, the Clinic’s negligence, or both. The Burnettes alleged two parties were at fault. Certainly then, within the context of the jury’s assessment of comparative fault, the use of the word “contributed” is appropriate. We are mindful that the jury here could have found Dr. Eubanks caused the wrongful death and set his fault at 100 percent or the Clinic at 100 percent. Instead, the jury assessed fault at 75/25 percent, respectively.
With these principles of the law of proximate cause in view, we fail to see the significance of Dr. Eubanks’ argument. Every negligent act of the doctor and the Clinic employees lead to a conclusion of cause in fact as well as legal cause. But for their negligence, it was forseeable that Joel would have become infected. Then, due to the infection, Joel contracted arachnoiditis and because of the arachnoiditis, Joel committed suicide.
The fundamental rules of fault compel our rejection of Dr. Eu-banks’ argument on this point. In Allman v. Holleman, 233 Kan. 781, Syl. ¶ 4, 667 P.2d 296 (1983), a wrongful death medical malpractice action, the Kansas Supreme Court held explicitly: “A party is at fault when he is negligent and his negligence caused or contributed to the event which brought about the injury or damages for which the claim is made.” This holding mirrors the language at issue in PIK Civ. 4th 105.01.
Because Dr. Eubanks, in challenging Instruction No. 11, does not argue the instruction was factually erroneous, i.e., whether the evidence supported comparing the fault of himself and the Clinic, step three of the Foster analysis is not before us. See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011) (issue not briefed by the appellant is deemed waived and abandoned). And, given our holding that the district court did not err in giving Instruction No. 11, we need not reach the harmless error analysis in step four. See Siruta, 301 Kan. at 773.
The trial court did not err when it used PIK Civ. 4th 105.01 to instruct the jury.
The clinical social workers testimony was admissible.
Dr. Eubanks claims the district court erred in allowing a clinical social worker to testily at trial about the connection between Joels arachnoiditis and his decision to commit suicide. Specifically, Dr. Eubanks argues the testimony was prohibited under K.S.A. 65-6319. We view this as a matter of trial court discretion. Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 70, 274 P.3d 609 (2012).
The statute Dr. Eubanks cites, K.S.A. 65-6319, did not bar the social worker’s testimony. During the pretrial conference, the district court addressed the admissibility of the deposition testimony of Sharleen Clauser, a licensed clinical social worker. In her deposition, Clauser testified that Joels arachnoiditis and the associated symptoms contributed to his suicide. Dr. Eubanks and the Clinic argued that Clauser did not have authority under K.S.A. 65-6319 as a social worker to offer causation opinions at trial or to testily that Joel’s arachnoiditis contributed to .causing his suicide. The district court found that Clauser’s testimony was admissible because the act of committing suicide was not a medical condition and K.S.A. 65-6319 “talks about diagnosing and treating, not rendering opinion.”
K.S.A. 65-6319 actually calls upon the worker to continue treatment of patients:
“The following licensed social workers may diagnose and treat mental disorders specified in the edition of the diagnostic and statistical manual of mental disorders of the American psychiatric association designated by the board by rules and regulations: (a) A licensed specialist clinical social worker.... When a client has symptoms of a mental disorder, a licensed master social worker shall consult with the client’s primary care physician or psychiatrist to determine if there may be a medical condition or medication that may be causing or contributing to the client’s symptoms of a medical disorder. ... A licensed master social worker may continue to evaluate and treat tire client until such time that tire medical consultation is obtained or waived.” (Emphasis added.)
We hold that K.S.A. 65-6319 does not affect the admissibility of Clauser’s testimony in this case. In Welch v. State, 270 Kan. 229, 233-36, 13 P.3d 882 (2000), the Kansas Supreme Court clarified that the import of K.S.A. 65-6319 was to give licensed specialist clinical social workers the ability to diagnose and treat mental disorders and describe any such diagnosis to the jury. Here, Clauser’s testimony did not concern the diagnosis or treatment of a mental disorder found in the manual specified by the statute.
Dr. Eubanks argues that tire italicized language in K.S.A. 65-6319 above prohibited Clauser from testifying as to whether symptoms of Joel’s “long-standing psychiatric diagnoses” may be associated with a medical condition or Joel’s suicide. Dr. Eubanks points to no authority to support his claim that suicide is a medical condition. And the statute certainly does not bar her testimony.
The jury was free to weigh Clauser’s opinion and any other evidence offered at trial regarding Joel’s quality of life in deciding whether Joel’s arachnoiditis caused by Dr. Eubanks’ and the Clinic’s negligence subsequently caused or contributed to Joel’s suicide. If, as Dr. Eubanks suggests, Joel’s history of medical and psychiatric illness that predated the alleged medical malpractice here might have played a role in his suicide, Dr. Eubanks and the Clinic were not prevented by tire admission of Clauser’s testimony from asking the jury to take into account Joel’s mental health history when determining fault. See Maunz v. Perales, 276 Kan. 313, 76 P.3d 1027 (2003).
The district court did not abuse its discretion in finding Clauser’s testimony admissible. We turn to the issue of the necessity of expert testimony.
Because there was expert testimony admitted in this case, toe need not address the issue raised by Dr. Eubanks.
Dr. Eubanks asserts that the Burnettes were required to show with expert testimony that Joels suicide was caused by the claimed medical negligence here. He questions the reliability of Wozniak v. Lipoff, 242 Kan. 583, 750 P.2d 971 (1988), a prior case that rules to the contrary. Dr. Eubanks contends the ruling in Wozniak is simply wrong.
We need not rule on this claim. Dr. Eubanks acknowledges that Dr. Steven Simon testified at trial that the pain Joel suffered as the result of his arachnoiditis contributed to cause his suicide. Also, Clauser testified that the pain and disabilities that resulted from Joels arachnoiditis contributed to cause Joels suicide. Thus, there was expert testimony here.
Additionally, the jury could consider Joels own anguished words that most eloquently spoke of his continuing pain that led him to take his own life.
We will not alter the damage award in this case.
Dr. Eubanks raises two arguments when challenging the Bur-nettes’ wrongful death claim. He contends the phrase “loss of a complete family” in Instruction No. 19 was not legally appropriate, and he claims there was insufficient evidence to support the district courts decision to instruct the jury on the Burnettes’ claim for economic damages under Wentling v. Medical Anesthesia Services, P.A., 237 Kan. 503, 701 P.2d 939 (1985).
A party preserves an instruction error claim on appeal by timely objecting at trial and by stating the grounds for the objection. See K.S.A. 2015 Supp. 60-251(c)(l), (c)(2)(A), and (d)(1)(A). We question whether Dr. Eubanks has preserved these issues for review.
Instruction No. 19 told the jury it could consider the following categories of economic damages: “Loss of attention, care, and loss of a complete family.” Instruction No. 19 clarified that for these economic damages the jury “should allow an amount that you believe would be equivalent to the benefit plaintiffs Vernon and Gail Burnette could reasonably have expected to receive from the continued life of the deceased.”
At the instruction conference, Dr. Eubanks and the Clinic objected to the district court giving Instruction No. 19 on the basis that there was insufficient evidence to support Wentling damages. Specifically, defense counsel stated, “Our objection is that it submits Wentling damages. And we think under the Wentling and subsequent cases that evidence needs to be presented, that was not presented in this case, to justify Wentling damages, which would be a financial loss beyond a noneconomic loss to the parents.” Based on this objection, Dr. Eubanks has only preserved one of his arguments for appellate review.
Dr. Eubanks has not preserved his argument challenging the inclusion of the phrase “loss of a complete family” in Instruction No. 19. The objection did not refer to the phrase “loss of a complete family,” nor did Dr. Eubanks or the Clinic argue, as they do here, that the inclusion of this language was error.
When raising new grounds challenging an instruction, the issue is treated as a failure to object to the instruction and clear error analysis applies. State v. Cameron, 300 Kan. 384, 388, 329 P.3d 1158 (2014). Consequently, while we will review Dr. Eubanks’ “loss of a complete family” argument to determine whether tire instruction was legally appropriate, we will only reverse based on this argument if we find clear error. In other words, if we find error we must be firmly convinced the juiy would have reached a different verdict (or award) without the error. See Siruta, 301 Kan. at 774. Finally, because Dr. Eubanks preserved the Wentling argument, we will reverse if there is an error under Wentling and a reasonable probability that the error affected the outcome of the trial (or award) in light of the entire record. Siruta, 301 Kan. at 773.
Dr. Eubanks argues that Instruction No. 19 was improper because “loss of a complete family” is not a compensable category of economic damages in wrongful death actions in Kansas. He contends it does not fairly and accurately state the applicable law. See Foster, 296 Kan. at 308.
The district court instructed the juiy that it could award both economic and noneconomic damages. Instruction No. 19 provided:
“Economic damages include:
1. Loss of attention, care, and loss of a complete family.
2. Reasonable funeral expenses.
“For item 1 above, you should allow an amount that you believe would be equivalent to tire benefit plaintiffs Vernon and Gail Burnette could reasonably have expected to receive from the continued life of the deceased.
“Noneconomic damages include:
1. Mental anguish, suffering, or bereavement.
2. Loss of spciety, loss of comfort, or loss of companionship.
“For noneconomic damages, there is no unit value and no mathematical formula the court can give you. You should allow an amount that you find to be fair and just under all the facts and circumstances.”
Dr. Eubanks argues this issue is controlled by Howell v. Calvert, 268 Kan. 698, 1 P.3d 310 (2000). In Howell, the plaintiff, in an action for wrongful death and damages for personal injuries arising out of a traffic accident, appealed in part from the district court’s refusal to instruct the jury on the plaintiffs theory of economic damages. The jury instruction on noneconomic damages followed PIK Civ. 3d 171.32, “Wrongful Death of A Child,” defining nonpe-cuniary loss. The plaintiff sought an instruction on economic loss that included damages for “loss of the value of a continued family relationship through the existence of a living child” and “loss of enjoyment and entertainment.”
The Kansas Supreme Court in Howell held that the economic damages sought for loss of “continued family relationship” and “loss of enjoyment and entertainment” were, in fact, noneconomic damages. Relying on how PIK Civ. 3d 171.32 categorized and defined economic and noneconomic losses, the court stated:
“Without explicitly saying so, [plaintiff] advocates a change in the law. ‘Continued family relationship’ and ‘loss of enjoyment and entertainment’ are strikingly similar to loss of society, comfort or companionship-nonpecuniary damages. By requesting that the pecuniary damage instruction include these items, [plaintiff’s] requested instruction goes beyond the traditional definition of pecuniary loss.” 268 Kan. at 707.
In finding that the district court did not err, the Howell court found that the district courts instruction following PIK Civ. 3d 171.32 for the plaintiffs claim of economic damages for “[l]oss of services, attention, care, protection, and advice and counsel” was consistent with the PIK instruction and caselaw. 268 Kan. at 707-OS. Specifically, the court cited Wentling, 237 Kan. 503, and Cer retti v. Flint Hills Rural Electric Co-op. Ass’n, 251 Kan. 347, 365, 837 P.2d 330 (1992). Howell, 268 Kan. at 708.
In response to this argument, the Burnettes point to both Cer-retti and the Kansas federal court ruling found in Griffith v. Mt. Carmel Medical Center, 842 F. Supp. 1359 (D. Kan. 1994), as authority for the inclusion of loss of complete family economic damages. We will examine both cases.
In Cerretti, the Kansas Supreme Court upheld a jury’s award of pecuniary damages to the children of a deceased mother after letting stand jury instructions indicating drat economic loss included
“loss of services, attention, parental care, advice and protection, loss of their mothers nurturing, loss of the educational assistance of their mother, loss of the counsel and advice of their mother, loss of die moral training and guidance of their mother, loss of the value of a complete family, and loss of financial support which [the motirer] would have provided during the children’s minority.” (Emphasis added.) 251 Kan. at 365.
In Griffith, the federal court found that under Kansas law damages for “loss of nurturing, loss of moral training and guidance, loss of educational assistance, and loss of the value of a complete family” were economic in nature. 842 F. Supp. at 1368-69. Citing to the holding in Cerretti, 251 Kan. at 366, allowing a juxy instruction on economic damages for “loss of the value of a complete family,” the federal court thought the Kansas Supreme Court intended to do what it did:
“[0]ne must ask why the court found it necessary to even mention the trial court’s instruction on what constitutes pecuniary damages. Surely, if die court, having reviewed the trial court’s pecuniary damages instruction, believed drat it erroneously included elements of nonpecuniary damages, the court would have said so. This court must assume that the Kansas Supreme Court was mindful that by repeating the trial courts instruction and deciding not to disturb die jury’s pecuniary damages award, it was casting favor upon the use of diat instruction in future cases in Kansas district courts as well as diversity actions in this court.” 842 E Supp. at 1368.
We are not persuaded that the Burnettes’ position on this is correct. First, Cerretti and Griffith predate Howell, which clearly was not casting favor on economic damages for loss of a complete family when the jury is similarly instructed on noneconomic damages. Second, there is no indication in Cerretti whether the instruction on noneconomic damages in that case raised the same concern as the one in Howell where the jury was also instructed it could award loss of society, comfort, or companionship noneconomic damages. Third, Griffith is distinguishable because the plaintiff had dismissed any claim for nonpecuniaiy damages. Thus, in rejecting the argument that it was improper to include “loss of the value of a complete family” in a wrongful death damages instruction and finding such damages consistent with Wentling, the concern in Howell was not before the federal court. 842 F. Supp. at 1369.
Here, the same concern as that in Howell about the repetitive nature of the economic and noneconomic instructions is present. Instruction No. 19 included a claim for “[ljoss of attention, care, and loss of a complete family” economic damages and “[ljoss of society, loss of comfort, or loss of companionship” noneconomic damages. More importantly, Instruction No. 19, with the inclusion of the phrase, “loss of a complete family,” departs from how PIK Civ. 4th 171.32 categorizes and defines economic and noneconomic damages. Economic loss includes: “1. Loss of filial care, attention, or protection.” Nonpecuniary loss includes: “1. Mental anguish, suffering, or bereavement,” and “2. Loss of society, loss of comfort, or loss of companionship.” PIK Civ. 4th 171.32.
It is reasonable to interpret Howell to mean that if a jury is instructed on loss of society, comfort, or companionship as elements of nonpecuniaiy damages in addition to loss of complete family as a category of economic damages, then the ability or inability to recover for the loss of a complete family is more properly directed to the weight of the evidence to support the instruction, not the ability of the plaintiff to recover.
Here, the Burnettes acknowledge on appeal that the evidence they presented at trial was only consistent with the evidence Wen-tling found sufficient to support a claim for loss of attention and care. The district court might have believed its inclusion of the “loss of a complete family” economic damages category in the instructions and verdict form was an attempt to tailor the instructions and verdict form to reflect the evidence. However, the evidence in the record, even if viewed in the fight most favorable to the Bur-nettes, does nothing to distinguish loss of a complete family eco nomic damages from loss of society, comfort, or companionship nonpecuniary damages. See Foster v. Klaumann, 296 Kan. 295, 301-02, 294 P.3d 223 (2013). Just as in Howell, 268 Kan. at 707, tíre jury instruction goes too far.
Accordingly, the district court erred in including the language “loss of a complete family” in Instruction No. 19.
We find no clear error in the damages instruction.
Given our determination that the inclusion of the “loss of a complete family” component of economic damages in Instruction No. 19 was not legally and factually appropriate, coupled with Dr. Eu-banks’ failure to preserve this argument, we must find clear error under step four of our analysis in order to reverse on this point. See Siruta, 301 Kan. at 774. Accordingly, we turn to the question whether we are firmly convinced the jury would have reached a different verdict (award) without the error. See State v. Clay, 300 Kan. 401, 408, 329 P.3d 484 (2014). The clear error determination must review the impact of the erroneous instruction in light of the entire record, including the other instructions, counsel’s arguments, and whether the evidence is overwhelming. In re Care & Treatment of Thomas, 301 Kan. 841, 849, 348 P.3d 576 (2013). Of note, Dr. Eubanks does not brief step four of our analytical framework—whether it was clear error to issue Instruction No. 19. See Superior Boiler Works, 292 Kan. at 889.
As mentioned, the juiy awarded $550,000 for “loss of attention, care, and loss of a complete family.” Given that the issue was not itemized separately, we have no means to differentiate between how the jury viewed the three claims or apportioned its award. However, reversal is not warranted, having already determined there was ample evidence substantiated in the record to establish under Wentling that there was a close family relationship and the pain suffered by Joel’s parents is obvious. Ordinarily, reversal would be warranted under the clear error standard if “there was no evidence at all to establish the element of loss upon which the award in issue was based.” Wentling, 237 Kan. at 511.
We are aware that we may find clear error if the award was so excessive or contrary to the evidence that it shocks our conscience. See Wentling, 237 Kan. at 511. This award does not shock our conscience. The award here was not so large to indicate that it was the product of passion or prejudice. It is comparable to other cases. See Cerretti, 251 Kan. at 365 (upholding award of $200,000 to a surviving husband and $850,000 to three surviving children based on testimony of husband and economist, observing “there can be no serious contention that the care, guidance, and services of a spouse and parent lack monetary value”); Leiker v. Gafford, 245 Kan. 325, 348, 778 P.2d 823 (1989), overruled on other grounds hy Martindale v. Tenny, 250 Kan. 621, 829 P.2d 561 (1992) (upholding award of $1,000,000 for economic damages in part for loss of parental care and attention and loss of maternal training and guidance); Wentling, 237 Kan. at 514 (approving award of $761,166.64 for economic losses); Huffman v. Thomas, 26 Kan. App. 2d 685, 693, 994 P.2d 1072, rev. denied 268 Kan. 886 (1999) (upholding award of $907,732.52 in economic damages).
Accordingly, while the district court should not have instructed the jury on loss of a complete family economic damages, we are not convinced the jury would have reached a different award. Therefore, we hold this was not clear error.
We move on to examine the factual basis for the instruction on damages.
Under the next step of our inquiry, we must determine whether sufficient evidence supported the Burnettes’ theory of economic damages. See Foster, 296 Kan. at 301. In this context, there must be evidence supporting the Burnettes’ theory of economic damages which, if accepted as true and viewed in the fight most favorable to the Burnettes, is sufficient for reasonable minds to reach different conclusions based on the evidence. See Foster, 296 Kan. at 302 (citing Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 419, 228 P.3d 1048 [2010]). Taking into account the erroneous inclusion of “loss of a complete family” in Instruction No. 19, if reasonable people could disagree over whether the Burnettes suffered damages for “[ljoss of attention, care,” then the district court should have instructed the jury to determine such damages.
In Kansas, parents have long been able to recover economic damages for the death of a majority-age child. See Railway Co. v. Fajardo, 74 Kan. 314, 324, 86 P. 301 (1906). The Kansas Supreme Court has defined economic or pecuniary damages as follows: “Pecuniary damages are ‘[s]uch as can be estimated in and compensated by money . . . .’ [Citation omitted.]. . . Pecuniary loss or damages in a wrongful death case should be equivalent to those pecuniary benefits or compensation that reasonably could have been expected to have resulted from the continued life of the deceased.” McCart v. Muir, 230 Kan. 618, 626, 641 P.2d 384 (1982); see Wentling, 237 Kan. at 507.
In Wentling, the Kansas Supreme Court considered in detail what kind of proof is necessary to support an award of damages for economic loss. The Wentling case included an instruction identifying “[l]oss of services, attention, parental care, advice, and protection” as pecuniary damages. 237 Kan. at 505. Our Supreme Court clarified that a plaintiff in a wrongful death case is not required to establish his or her economic loss with mathematical certainty. Rather, a plaintiff may satisfy the burden of proof by establishing tire nature and extent of the losses asserted. 237 Kan. at 510. Once such evidence is presented, tire jurors are presumed to be capable of converting the losses into monetary equivalents based on their own knowledge and experience. 237 Kan. at 510; see Cerretti, 251 Kan. at 363 (stating that a jury is not bound by expert economic testimony in estimating future loss); Huffman v. Thomas, 26 Kan. App. 2d at 692 (applying standard for Wentling damages).
Dr. Eubanks argues that even though Joel “had a close relationship with his parents,” the Burnettes presented no evidence of Wentling damages because the record is devoid of “any evidence [Joel] provided services, counsel, guidance, financial support or anything else of an economic nature.” (Emphasis added.) Dr. Eu-banks appears to be asking this court to limit pecuniary damages to only those certain services that can be equated to a specific monetary value. Dr. Eubanks, however, interprets pecuniary damages too narrowly.
In Wentling, the Kansas Supreme Court explained that a pecuniary loss may arise from a “ ‘deprivation of benefits that could reasonably be expected to have been received, originating from no more than a moral obligation.’” 237 Kan. at 509. Wentling further clarified: “ ‘The fact that such matters as loss of care, training, advice, guidance and education are not readily reduced to a present money value does not mean that those factors need not be taken into consideration.’ ” 237 Kan. at 509. In stressing that the inability of the plaintiff to translate the loss of certain services or care by his wife into a specific monetary figure was not fatal to recovery, the court considered testimony regarding the closeness of their marriage and the extent of attention and marital care he received from his wife that had been lost sufficient to support the award of damages. Wentling, 237 Kan. at 513-14.
In Huffman, the parents brought a medical malpractice action alleging a surgeon’s negligence caused their son’s death. This court considered whether tire evidence was sufficient to award $907,732.52 in pecuniary damages for separate claims of “loss of services, loss of attention, loss of filial care, [and] loss of protection.” 26 Kan. App. 2d at 693. In holding that the evidence was sufficient to support the amount of the award, this court pointed to testimony regarding specific services or “contributions around the house” by the son that had been lost. However, with respect to the claims for loss of attention and care, this court noted the evidence of “the companionship” the son provided. Specifically, this court pointed to evidence supporting “the loving relationship” between the parents and their child, that “[t]he family spent a lot of time together,” and that the son was a “caring person.” 26 Kan. App. 2d at 693.
Here, tire record reveals that multiple witnesses testified that “Joel devoted great care to his parents, that Joel engaged in numerous and regular activities with his parents, that Joel was very attentive to the needs of his parents, and that Joel was very close to his parents.” Even Dr. Eubanks concedes on appeal that “[w]ithout question, Joel Burnette had a close relationship with his parents” and “[n]o one doubts the closeness of the family.”
The Burnettes’ evidence, which if accepted as true and viewed in the fight most favorable to them, supports their claim for pecuniary damages under Wentling. And, while neither party attempted to place a specific dollar value on the economic damages through expert testimony, “the triers of fact are presumed to be capable of converting the losses into monetary equivalents on the basis of their own experience.” Wentling, 237 Kan. at 514. In other words, because the jury has wide discretion in determining the amount of an award of damages, we should be predisposed toward upholding the jury’s application of the district courts instructions. See Wentling, 237 Kan. at 511. Sufficient evidence, therefore, supported the district court giving Instruction No. 19 on Wentling damages.
We turn to the two concluding issues.
There are two final arguments brought by the Clinic and Dr. Eubanks—one deals with a comment by a prospective juror and the other is a claim of error when the court allowed the jury to take an exhibit back to the jury room.
During voir dire, a prospective juror made an unsolicited comment that Dr. Eubanks and the Clinic had insurance coverage. Counsel moved to strike the entire venire panel. The district court denied the motion but removed the prospective juror. The court instructed the jury that it was not to consider the existence or lack of insurance during its deliberations. The judge told the jury the existence or lack of insurance should not be interjected at trial. Dr. Eubanks contends the district court erred when it failed to strike the venire panel. He contends the prospective jurors inadvertent comment prejudiced the jury’s award to such an extent that it warrants reversal of the judgment. We are not so convinced.
We view this as a matter of discretion. See Foster v. Stonebridge Life Ins. Co., 50 Kan. App. 2d 1, 25, 327 P.3d 1014 (2012).
Here is what was said:
“Honestly I feel like the insurance company with the doctors can be paying the money. So if the doctor did anything lorong, he’s really not ever going to feel the pain for it. So ultimately it’s accomplishing a zero reward because there is no benefit for some sort of a loss of a loved one, yes, but actually I’m not sure what it is actually accomplishing. But that is how insurance works.” (Emphasis added.)
In ruling upon this motion, the trial judge patiently entertained all arguments on the request. The court heard further arguments during the afternoon bréale. The court informed the parties that it intended to instruct the jury that insurance would not be a part of the case or considered. At the completion of the Burnettes’ voir dire examination, the court admonished the juiy panel that it could not consider insurance:
“The existence of any insurance coverage or the lack of any insurance coverage shall not enter into your consideration or deliberation of this case. Kansas law is very clear on this point, and your failure to follow the law will be a violation of your sworn duties as jurors.”
The next day the judge denied Dr. Eubanks’ motion to strike the venire panel, explaining that the juror’s comment was unsolicited; was made by a prospective juror during jury selection, not by a witness in trial; and was a general statement not directed to any particular party. The court pointed to the limiting instruction as making it clear that any aspect of insurance is not an issue.
The collateral source rule is alive and well in Kansas. See K.S.A. 60-454; Kansas Med. Mut. Ins. Co. v. Svaty, 291 Kan. 597, 629, 244 P.3d 642 (2010). In fact, our Supreme Court has made it clear that the deliberate injection of insurance into trial testimony constitutes prejudicial and reversible error. See Unruh v. Purina Mills, LLC, 289 Kan. 1185, 1198, 221 P.3d 1130 (2009). But we are not dealing with a deliberate insertion of insurance into the issues of this case.
Historically, the Kansas Supreme Court has considered the inadvertent mention of insurance not to be a prejudicial error. In Langley v. Byron Stout Pontiac, Inc., 208 Kan. 199, 202, 491 P.2d 891 (1971), the court considered whether a prospective juror’s question during voir dire—’’’What about the insurance that we’ve been paying for? Isn’t that supposed to take care of these little things?’ ”—was prejudicial error. Noting that there was no evidence of insurance introduced during the trial, tire court held: “[Wjhen the mention of insurance during a trial is purely inadvertent and is not brought into the case by intentional misconduct of plaintiff’s counsel prejudicial error has not been committed thereby.” 208 Kan. at 203. This ruling has been reaffirmed in Unruh, 289 Kan. at 1199. Unruh acknowledged that when the subject of insurance is inadvertently injected into a trial, a district court may remedy the error by issuing a curative instruction.
Dr. Eubanks does not dispute the district court’s finding that the prospective juror’s reference to insurance during voir dire was inadvertent and not solicited by counsel, nor does he point to any other evidence in the trial that is contrary to the collateral source rule.
Nevertheless, Dr. Eubanks asks us to depart from the ruling in Langley and Unruh and find that prejudice can arise from an inadvertent reference to insurance during voir dire when the verdict is challenged as excessive even if a curative instruction is given. He cites Borth v. Borth, 221 Kan. 494, 561 P.2d 408 (1977); Bott v. Wendler, 203 Kan. 212, 453 P.2d 100 (1969); and Pool v. Day, 141 Kan. 195, 40 P.2d 396 (1935). We are not convinced. None of these cases actually support Dr. Eubanks’ position.
In Pool, the plaintiff twice voluntarily injected testimony into the case referring to insurance. In ruling, the Kansas Supreme Court emphasized that the district court had a duty to see the prejudicial matter did not reach the jury and stated:
“[Wjliether or not objections and motions to strike out have been promptly made, it has been held to be tire duty of the trial court to carefully exclude all highly prejudicial matter from the jury, and admonish the juiy to wholly disregard the same in die hope thereby of avoiding a mistrial or the necessity of a new trial on account of the possible prejudice and passion created diereby in die minds of the jurors.” (Emphasis added.) 141 Kan. at 200.
Indeed, the Supreme Court reversed the judgment of the district court after holding that the plaintiff’s reference to insurance was prejudicial and was likely to create passion and prejudice and increase the amount of the verdict, which the court found was excessive. Dr. Eubanks seizes upon this, arguing that the critical factor was the excessive verdict in Pool.
Essentially, Dr. Eubanks maintains that the presence or absence of an excessive award is dispositive in determining whether an inadvertent interjection of insurance into a trial prejudiced and inflamed the jury against the defendant, even if the district court gave a curative instruction. Dr. Eubanks is misreading the facts in Pool. The Supreme Court, in discussing the two instances when tire plaintiff in Pool voluntarily injected testimony of insurance, noted that the first reference to insurance was not objected to, nor was there a request to admonish the jury. The court then noted in tire second instance, such a motion was made and plaintiff’s counsel promptly agreed, but nothing further was done in the way of withdrawing it from the juiy or admonishing the juiy to disregard it. Clearly, the impact of the curative instruction on the jury was not a question in Pool. This is evident when the court emphasized the district court’s duty to see that prejudicial matters do not reach the jury by admonishing it. 141 Kan. at 203.
Basically, Pool stands for the proposition that irrespective of whether a party raises an objection, if the district court does not promptly advise the jury not to consider the matter of insurance inadvertently interjected into a trial and further instruct the jury to that effect, it is error if the verdict is excessive. Given the district court s curative instruction to the jury in this case, the factual scenario in Pool simply is not the same. Besides, the ruling in Pool predates the clear holding in Langley, 208 Kan. at 203, that no prejudicial error occurs when the mention of insurance is purely inadvertent and not intentional.
Turning to the other two cases that Dr. Eubanks relies upon, in Bott, the Kansas Supreme Court addressed whether the probability and fact that the defendants were covered by liability insurance was injected into the case materially prejudiced the defendants. During trial, witnesses had mentioned the name of a person who was an insurance agent. The defendants moved for a mistrial, which was denied. Our Supreme Court found that any reference to the defendants being covered by automobile liability insurance was indirect, inadvertent, and within the general knowledge of the juiy, so no prejudicial error arose. 203 Kan. at 228. Dr. Eubanks hangs his hat on the following statement about the lack of effect on the award:
“As indicated, the district court and counsel did not consider the award excessive, and defendants have never contended the verdict was not supported by the medical evidence. Against this background, the argument that the juiys award was accelerated by the alleged insurance factor is not persuasive.” 203 Kan. at 228.
Bott is not helpful. Like Pool, no curative instruction was given in Bott. It seems to us that the holding in Bott is more in line with Langley, which specifically cites Bott to support its holding regarding the nonprejudicial impact of the inadvertent mention of insur- anee even without a curative instruction. See Langley, 208 Kan. at 203.
Finally, in Borth, the Kansas Supreme Court found the plaintiffs unresponsive answer during cross-examination indicating tire defendant had insurance was inadvertent and a curative instruction admonishing the jury cured any possible prejudice. 221 Kan. at 497. The court then stated: “The size of the verdict, $9,500, is modest compared to the actual damages of over $20,000 claimed, and the total recovery of $250,000 sought.” 221 Kan. at 497. Dr. Eubanks argues that this statement in Borth indicates that our Supreme Court finds “the presence or absence of an excessive damage award .. . important in determining whether the jury was prejudiced and inflamed against the defendant by the inappropriate insurance reference.”
We view this follow-up statement by the Supreme Court to be dicta. Our appellate courts since Borth have repeatedly acknowledged the principle that the inadvertent mention of insurance may be cured by an instruction to the juiy to disregard it. See Unruh, 289 Kan. at 1199; Tetuan v. A.H. Robins Co., 241 Kan. 441, 479, 738 P.2d 1210 (1987); Kelty v. Best Cabs, Inc., 206 Kan. 654, 656, 481 P.2d 980 (1971); Tamplin v. Star Lumber & Supply Co., 16 Kan. App. 2d 352, 359-60, 824 P.2d 219 (1991), aff'd as modified 251 Kan. 300, 836 P.2d 1102 (1992).
In conclusion, we find no prejudicial error in this case from the inadvertent mention of insurance during voir dire. The district court cured any possible prejudice when it properly admonished the juiy not to consider the existence or absence of insurance coverage during its deliberation. We find no abuse of discretion in not striking the venire panel.
For his ultimate issue, Dr. Eubanks claims that the district court erroneously admitted Exhibit 114, a drawing that Heifer marked during his deposition, without foundation or applied the wrong legal standard in determining the admissibility of the drawing. Dr. Eubanks does not dispute that both he and the Clinic at trial only objected to the jury viewing Exhibit 114 during its deliberations. Given this concession, the sole question before us is whether it was error to give the jury Exhibit 114 to take back into the jury room. The manner in which exhibits are handled at trial is within the trial court’s discretion and will not be disturbed except in cases of abuse. See State v. Fenton, 228 Kan. 658, 667, 620 P.2d 813 (1980).
In Fenton, the Supreme Court stated that once a case is submitted to the jury for deliberations, the jury is ordinarily given the exhibits to take into the jury room where the jurors can examine the exhibits as many times as they desire. 228 Kan. at 667. Here, Heifer, during the course of his testimony at trial, explained the limitations of Exhibit 114 and made it clear that his marks on the exhibit were only approximations based upon his notes from January 12, 2009. The jury had the opportunity to view Exhibit 114 and formulate opinions during the course of Heifer s testimony and then consider Heifers testimony after hearing from Dr. Carl Bak-ken. Dr. Eubanks has not demonstrated how Exhibit 114 being allowed into the jury room results in any prejudice. We find no abuse of discretion on this point.
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The opinion of the court was delivered by
Luckert, J.:
The question presented in this case mirrors one addressed in our decision in Wesley Med. Center v. City of Wichita, 237 Kan. 807, 703 P.2d 818 (1985). There, a hospital attempted to collect payment from a city and a county for the medical expenses incurred in treating an indigent criminal offender brought to the hospital while in the custody of the city’s police officers. The city argued the county sheriff was responsible for the care of prisoners and the county should pay the medical bills. The county argued the sheriff had never obtained physical custody of the offender and the city should pay because it did have custody. This court rejected the physical custody theory. Instead, this court imposed liability on Kansas counties for any medical expenses incurred as a consequence of and following the arrest of an indigent offender if the offender was arrested for violating a state law and in due course was charged with a state crime and delivered to the county’s custody. 237 Kan. at 815.
In this appeal, we again must consider who must pay for medical treatment provided to an indigent offender for injuries sustained during an arrest—a law enforcement agency with physical custody of the offender (this time the Kansas Highway Patrol [KHP]) or a county where the offender is ultimately jailed while awaiting trial on felony charges. The issue arises anew because of the 2006 enactment of K.S.A. 22-4612, which addresses payment of medical expenses for indigent offenders in the custody of the KHP or several other governmental entities. The district court and the Court of Appeals in University of Kan. Hosp. Auth. v. Bd. of Comm’rs of Unified Gov’t, 49 Kan. App. 2d 449, 454, 313 P.3d 60 (2013), held K.S.A. 22-4612(a) altered the Wesley holding by making KHP liable to pay a health care provider for health care sendees rendered to persons in the custody of the agency.
Both courts considered a second issue that flows from that determination: Was the indigent offender in this case in KHP’s custody so as to trigger liability for the medical expenses at issue? Both the district court and the Court of Appeals determined that KHP had custody of the offender and was hable. 49 Kan. App. 2d at 455-56.
On petition for review from the Court of Appeals’ decision, we affirm the district court and Court of Appeals on both issues.
Facts and Procedural Background
The facts of this case are not in dispute. A KHP trooper stopped Wayne Thomas for speeding in Wyandotte County. When the trooper exited his patrol vehicle, Thomas sped away. An ensuing high-speed chase ended when Thomas crashed head-on into a tree. The trooper removed Thomas from his car, put him on the ground, handcuffed him, and formally placed him under arrest. Although the trooper called for an ambulance, Thomas initially refused any medical services.
After the trooper placed Thomas into his patrol vehicle and started filling out an arrest report, Thomas began complaining of pain and asked to be taken to the hospital. The trooper dren drove Thomas—who remained in handcuffs—to the emergency room at Kansas University Medical Center and escorted him inside. The trooper did not remove the handcuffs until the nurses began to examine Thomas. The trooper stayed at the hospital for about an hour until the nursing staff reported that they would be keeping Thomas overnight. Thereafter, the trooper instituted a “police hold” on Thomas, which meant that he wanted the hospital to call him before releasing Thomas.
The hospital called the trooper the next day, and he picked up Thomas and took him directly to the Wyandotte County Jail. No KHP officers guarded Thomas during his hospital stay, although there was an officer from the Kansas University Police Department in Thomas’ room when the trooper arrived to take Thomas to jail.
During the hospital stay, Thomas—whose indigence the parties do not challenge—incurred $23,197.29 in medical charges from the University of Kansas Hospital Authority and $2,311 from the Kansas University Physicians, Inc. (hereinafter collectively referred to as Hospital Authority). The Hospital Authority demanded payment from both the Unified Government of Wyandotte County/ Kansas City, Kansas, (County) and KHP. Both refused to pay the Hospital Authority for Thomas’ expenses, each claiming it was not liable under the law.
The Hospital Authority filed suit against both the County and KHP. As the case progressed, the Hospital Authority and KHP filed motions for summary judgment. Both argued the County was responsible for the expenses under the holding in Wesley. The County responded by citing K.S.A. 22-4612(a), which it argued abrogated Wesley and, through its plain language, imposed liability on KHP. The County prevailed in its arguments before the district court and Court of Appeals. We granted KHP’s petition for review. Both KHP and the Plospital Authority continue to argue the County should be liable for Thomas’ medical care.
Analysis
Issue 1: On what basis is a law enforcement agency liable for an indigent offenders reasonable medical expenses?
Essentially, the parties’ arguments present us with an either/or question of law: Either the County is liable for Thomas’ medical bills under Wesley or KHP is responsible under K.S.A. 22-4612(a). Our review of this question is unlimited. See University of Kansas Hosp. Auth. v. Board of Wabaunsee County Comm’rs, 299 Kan. 942, 951, 327 P.3d 430 (2014) (hereinafter Wabaunsee County) (stating that “an unlimited appellate standard of review [applies] when considering judicial conclusions of law and questions of statutory interpretation”); see also Stanley Bank v. Parish, 298 Kan. 755, Syl. ¶ 1, 317 P.3d 750 (2014) (“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.”). To provide context for the parties’ arguments, we begin with a discussion of Wesley and K.S.A. 22-4612(a). We will then discuss the parties’ arguments regarding the application of each.
1.1 Wesley and K. S.A. 22-4612(a)
To add specifics to our previous summary oí Wesley, in that case Wichita police officers attempted to arrest a man and a “gun battle” ensued, resulting in injuries to the offender. Wesley, 237 Kan. at 808. The officers called for an ambulance that transported the offender to the Wesley Medical Center for treatment. Wichita police officers guarded the offender at the hospital until criminal charges for state felonies were filed; after that time, the Sedgwick County sheriffs office guarded the offender until the hospital released him a couple of weeks later to the Sedgwick County jail. The offender was later transferred to the Butler County jail. Wesley Medical Center sued all parties it believed might be liable for the indigent offender’s medical expenses: the offender, the City of Wichita, Butler County, and Sedgwick County. The trial court held the City of Wichita was responsible for the medical expenses from the time of injury until Sedgwick County took over guard duties and Sedgwick County was responsible for the remainder. The City appealed.
This court recognized a statutory duty to treat prisoners with humanity, meaning the governmental entity with custody of a prisoner must provide the prisoner with necessary medical care. Wesley, 237 Kan. at 809; see also Wabaunsee County, 299 Kan. at 957-58. But there was no explicit statutory provision specifying which unit of government bore the expense of paying for die treatment under die circumstances of the case. See Wesley, 237 Kan. at 810-15 (discussing prior cases, the interpretation given to the relevant statute by the Kansas Attorney General, other states’ approaches, and legislative policy as evinced by odier Kansas statutes). Sedgwick County argued liability should fall on the agency with physical custody of an indigent criminal offender when the offender received medical treatment. This court íejectéd the custody theory of liability,-however, and held that “[t]he controlling factor is that the prisoner was arrested and subsequentiy charged with a violation of state law.” 237 Kan. at 815. Because the offender violated state law (as opposed to a municipal ordinance), the offender would be prosecuted in state court and held by the sheriff in the county jail. Consequently, the county sheriff owed the duty to treat the offender humanely and the county was responsible for all of the offender s medical expenses. 237 Kan. at 815-16.
As the district court and Court of Appeals recognized, if Wesley controls this case, Wyandotte County would be liable to pay for Thomas’ medical expenses because Thomas was arrested and charged with a violation of state law. University of Kan. Hosp. Auth., 49 Kan. App. 2d at 452. But both courts concluded the plain language of K.S.A. 22-4612(a) superseded Wesley by declaring that custody was the determinative factor for liability. 49 Kan. App. 2d at 453-54.
Under K.S.A. 22-4612(a):
“Except as otherwise provided in tills section, a county, a city, a county or city law enforcement agency, a county department of corrections or the Kansas highway patrol shall be liable to pay a health care provider for health care semices rendered to persons in the custody of such agencies the lesser of the actual amount billed by such healdr care provider or the [M]edicaid rate.” (Emphasis added.)
1.2 KS.A. 22-4612(a) abrogates Wesley
Throughout these proceedings—from those before the district court to those before this court—both the Hospital Authority and KHP have argued that K.S.A. 22-4612(a) merely addresses the rate of reimbursement that applies if an entity bears the legal responsibility of paying for an offender’s medical expenses, i.e., the Medicaid rate is the liability cap. They insist the statute has nothing to do with determining which entity is hable. They have cited legislative history to demonstrate the legislature never discussed abrogating Wesley.
As their arguments suggest, tire fundamental goal of statutory-construction is to ascertain the intent of the legislature. State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014). But in determining legislative intent, the starting point is not legislative history; rather, we first look to the plain language of the statute, giving common words their ordinary meaning. See Graham v. Dokter Trucking Group, 284 Kan. 547, 556-57, 161 P.3d 695 (2007) (“The Court of Appeals erred in overlooking the import of this plain language in the statute, instead attempting to divine legislative intent from a review of legislative history.”); see also Wabaunsee County, 299 Kan. at 957 (stating the “ ‘ “best and only safe rule for ascertaining the intention of the makers of any written law, is to abide by the language they have used” ’ ”). If the plain language of a statute is unambiguous, we do “not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it.” Cady v. Schroll, 298 Kan. 731, 738-39, 317 P.3d 90 (2014).
Upon examination of the language of K.S.A. 22-4612(a), we conclude—as did the district court and Court of Appeals—that the statute does two things. First, it specifies a test for determining who is responsible for paying for the medical expenses by saying that KHP or one of the other listed agencies “shall be liable to pay a health care provider for health care services rendered to persons in the custody of such agencies.” (Emphasis added.) Second, it defines the method for calculating the amount that can be charged in such situations. K.S.A. 22-4612(a).
This plain-language reading of K.S.A. 22-4612(a) finds reinforcement in the language of K.S.A. 22-4613(a), which the legislature enacted along with K.S.A. 22-4612. L. 2006, ch. 183, secs. 1-2. K.S.A. 22-4613(a) provides: “A law enforcement officer having custody of a person shall not release such person from custody merely to avoid the cost of necessary medical treatment while the person is receiving treatment from a health care provider,” except under specified circumstances. Through this legislation, the Kansas Legislature clearly adopted custody as the trigger for payment liability when an indigent offender receives medical care.
Although KHP and the Hospital Authority present five arguments in an attempt to convince us that K.S.A. 22-4612(a) is ambiguous and does not designate custody as a liability trigger, they do not succeed. The legislature clearly conveyed its intent to base liability on custody, which effectively adopted the custody test that the Wesley court rejected. As we will discuss in the next issue, however, there remains a long-existing ambiguity in this area of law regarding when a person is in “custody” for liability purposes. Before reaching the meaning of custody, however, we will address KHP’s and the Hospital Authority’s five arguments that attempt to persuade us the legislature did not change the Wesley holding.
First, KHP suggests the statute is ambiguous because it could be read to obligate either the County or KHP to pay for Thomas’ medical expenses. But there is no ambiguity—an agency is liable for the medical expenses of a person in its custody. K.S.A. 22-4612(a). If Thomas was in KHP’s custody, tiren KHP would be liable. If Thomas was in the County’s custody, then the County would be liable.
. Second, KHP attempts to circumvent the statute’s plain language by arguing that under Frick v. City of Salina, 289 Kan. 1, 208 P.3d 739 (2009), the precedent of Wesley cannot be set aside unless the legislature clearly expressed its intent to supersede Wesley by enacting K.S.A. 22-4612(a). But KHP reads too much into the analysis in Frick. Frick did not hold the legislature must clearly and specifically express its intent to overrule precedent. Instead, this court referenced die well-established principle that “courts presume the legislature acts with knowledge of existing statutory and case law when it enacts legislation.” 289 Kan. at 23. This principle may lead a court to conclude in a given circumstance that the legislature meant to overturn precedent, or, as in Frick, to conclude it did not. But, in either event, Frick should not be read to require the legislature to offer some talismanic words to the effect of “we hereby overturn . . . .” See 289 Kan. at 23-24. In addition, we note diat the Frick court discussed the legislature’s presumed familiarity with judicial precedent only after finding ambiguity in the statute at issue; in the instant case there is no such statutory ambiguity. 289 Kan. at 23.
Frick is also distinguishable from the instant case because it involved the interplay between precedential judicial interpretation of a particular statutory phrase and the legislature’s subsequent enactment of a statute using the same phrase. See Frick, 289 Kan. at 23. These circumstances allowed the Frick court to conclude that tire legislature, presumably aware of prior judicial interpretations of a particular phrase in one statute, meant for courts to similarly interpret the same phrase as subsequently used in a second statute. But Wesley did not interpret a statute with language similar to K.S.A. 22-4612(a). Indeed, K.S.A. 22-4612 did not exist at the time, and the Wesley court had to consider multiple au thorities before pronouncing its rule. We now must consider K.S.A. 22-4612(a), and it refers to liability based on custody. That basis for liability is in direct contradiction to the holding in Wesley. See Wesley, 237 Kan. at 812, 815 (rejecting liability based on custody). Thus, the Wesley decision’s value as precedent does not override die plain language of K.S.A. 22-4612. Frick does not suggest otherwise.
Third, the Hospital Authority seeks to circumvent the clear meaning of K.S.A. 22-4612(a) by arguing that we must construe a statute designed to protect the public in light of legislative intent and interpret it to fully carry out the public purpose. See Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 248, 75 P.3d 226 (2003). From there, the Hospital Authority immediately discusses the legislative history of K.S.A. 22-4612, arguing the legislature intended to save taxpayers’ money and did not intend to change the Wesley holding. Yet, the Blue Cross decision did not hold that the public policy rule overrode the language of a statute or allowed a court to look at legislative history. Rather, the Blue Cross court cited to language in the statute that enunciated public policy. 276 Kan. at 248.
The Hospital Authority cites nothing to suggest that public interest statutes uniquely permit us to consider legislative history in the face of unambiguous statutory language. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013) (failure to support a point with pertinent authority is akin to failing to brief the issue and abandonment of the point). And we can discern no reason for a special rule. Further, interpreting K.S.A. 22-4612 to direct which governmental entity is hable does not implicate the statute’s public purpose, which is to save tax dollars by limiting the amount a governmental entity must pay for prisoner medical treatment to the applicable Medicaid rates.
Fourth, despite unambiguous statutory language, KHP and the Hospital Authority argue various canons of construction allow us to infer legislative intent; they again suggest tire legislature intended to retain the holding in Wesley. “But if a statute is plain and unambiguous, this court will not speculate about legislative intent or turn to canons of construction.” State v. Reese, 300 Kan. 650, 653, 333 P.3d 149 (2014). Moreover, the cited canons support our reading of K.S.A. 22-4612(a). For example, KHP notes this court presumes the legislature acts with full knowledge of the existing law, and the Hospital Authority observes we presume the legislature does not enact useless or meaningless legislation. See Friends of Bethany Place v. City of Topeka, 297 Kan. 1112, 1123, 307 P.3d 1255 (2013); In re Adoption of H. C. H., 297 Kan. 819, 831, 304 P.3d 1271 (2013). Consequently, we must presume the legislature understood Wesley, and in fact legislative history reveals Wesley was explained to the legislature during hearings on the bill that became K.S.A. 22-4612. Yet, the legislature chose words that departed from the holding in Wesley. Instead of simply stating that a cap would apply if a governmental entity was liable for an indigent criminal offender’s medical bills, the legislature chose to include language that designated custody as the trigger to that liability.
Fifth, the Hospital Authority argues the district court’s and Court of Appeal’s reading of K.S.A. 22-4612(a) conflicts with K.S.A. 19-1910(b)(l), which imposes liability on KHP for medical bills in the limited circumstance of a KHP officer injuring an offender. The Hospital Authority cites the rule of in para materia, asking us to construe K.S.A. 22-4612(a) in workable harmony with K.S.A. 19-1910(b)(l). We have held that even when various statutory provisions are independently unambiguous, we will construe them in para materia. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013). To reconcile the provisions, the Hospital Authority essentially argues we should import the restrictive language from K.S.A. 19-1910(b)(1) into K.S.A. 22-4612(a) so that KHP is only liable when it is responsible for injuring a person. We need not do so, however, in order to give meaning to the unambiguous language of K.S.A. 22-4612(a).
The legislature used limiting language in drafting K.S.A. 19-1910(b)(1). But in enacting K.S.A. 22-4612(a)—with presumed knowledge of K.S.A. 19-1910, which it had enacted the previous legislative session—the legislature chose not to use the same limiting language. We presume that difference to have been intentional. Further, the circumstances described in K.S.A. 19-1910 and K.S.A. 22-4612(a) are not mutually exclusive: KHP can be responsible for expenses when its officers injure an individual, even if the individual is not in KHP’s custody when treatment is sought, and it can be responsible if an indigent offender is in its custody when medical treatment is rendered, even if a KHP officer did not injure the individual.
In summary, K.S.A. 22-4612(a) clearly states that any of the listed agencies, including KHP, “shall be liable to pay a health care provider for health care services rendered to persons in the custody of such [agency]” (Emphasis added.) The Hospital Authority and KHP fail to argue how we can construe the statutory language of K.S.A. 22-4612(a) to mean anything other than what it says. We, therefore, conclude the Court of Appeals and the district court were correct in holding that K.S.A. 22-4612(a) abrogated Wesley. See Wabaunsee County, 299 Kan. at 954-55 (statutes concerning payment obligations for medical services provided to indigent offenders control over conflicting caselaw). KHP is Hable for Thomas’ medical expenses if it had custody of Thomas.
Issue 2: Did KHP have custody of Thomas for liability purposes?
KHP claims that it did not have custody of Thomas even if K.S.A. 22-4612(a) potentially imposed liability on it. But KHP concedes that a KHP trooper arrested Thomas. Plus, the trooper handcuffed Thomas and placed him in the back of a patrol car, gaining physical custody over Thomas.
Elsewhere in chapter 22, the legislature defined “custody” as “the restraint of a person pursuant to an arrest or the order of a court or magistrate.” (Emphasis added.) K.S.A. 22-2202(9). Similarly, “arrest” is “the taking of a person into custody in order that the person may be forthcoming to answer for the commission of a crime.” (Emphasis added.) K.S.A. 22-2202(4). At the least, under the plain meaning of the statutes, a person is in custody when under arrest. Wabaunsee County, 299 Kan. at 959. Thomas clearly was in KHP’s custody when he requested medical treatment and when a KHP trooper delivered him in handcuffs to the Hospital Authority.
Nevertheless, KHP argues that Thomas was not in its custody when the Hospital Authority treated him because the KHP trooper had removed Thomas’ handcuffs before treatment and did not guard him throughout the hospitalization. KHP essentially contends that a person is in custody for liability purposes only so long as an agency physically restrains the person.
KHP’s argument reflects the ambiguity we previously mentioned: What did the legislature mean when it used the word “custody” and at what point in time is custody determined? This ambiguity existed before the enactment of K.S.A. 22-4612 and has been the subject of analysis in Wabaunsee County and several Court of Appeals opinions. See Wabaunsee County, 299 Kan. at 954 (noting custody was trigger for common-law duty to provide medical care and under the Kansas statutes at issue in that case); see Allen Memorial Hosp. v. Board of Butler County Comm’rs, 12 Kan. App. 2d 680, 753 P.2d 1302 (1988); Dodge City Med. Center v. Board of Gray County Comm’rs, 6 Kan. App. 2d 731, 634 P.2d 163 (1981); Mt. Carmel Medical Center v. Board of County Commissioners, 1 Kan. App. 2d 374, 566 P.2d 384 (1977). Contrary to KHP’s argument about the necessity for physical restraint, in the cases decided by the Court of Appeals, the court found a person to be in custody for a county’s medical liability purposes absent posted guards, physical restraint, or even arrest.
In the earliest of these cases—Mt. Carmel Medical Center—a prisoner injured himself when he escaped by jumping out of a courthouse window. With agreement from a sheriff s deputy, the prisoner was taken to the hospital by ambulance, and once discharged from the hospital was allowed to stay with his parents while recovering. The sheriff posted no guards. Despite the fact the prisoner was not in die county’s physical custody throughout the hospital stay—i.e., when the hospital treated him—and was not immediately returned to custody when discharged from the hospital, the Court of Appeals found the county liable for the medical expenses, making at least two points important to our analysis. First, the court identified “[t]he determinative factor is whether [the prisoner] was in custody when the decision was made to transport [him] to the hospital.” Additionally, the court found physical cus tody during the hospitalization to be immaterial: “[Ojnce the duty to furnish medical care attaches, the hospital’s claim cannot be defeated by the sheriff s failure to carry out his sworn duties due to the lack of manpower.” 1 Kan. App. 2d at 379.
Similarly, in Dodge City and Allen Memorial the Court of Appeals, at least implicitly, focused on tire point in time when the decision was made to transport an indigent individual to the hospital. In Allen Memorial, sheriff s officers took an intoxicated person into protective custody and placed him in the county jail overnight. During the night, the man experienced a seizure that prompted the jailer to call an ambulance. The court found the man to be in the sheriffs custody for liability purposes even though he was never under arrest and had no obligation to return to jail after receiving the medical treatment.
In Dodge City, a sheriffs deputy shot a burglar and then summoned an ambulance. The burglar was not arrested or guarded during his 3-week stay at the hospital. Nevertheless, the court noted that the sheriff would have pursued the burglar if he fled the hospital. As well, the doctors were to advise the sheriff before releasing the burglar. The doctors did so, and the sheriff arrested the burglar at his release. Ultimately, the court held:
“Where a suspect is apprehended in the commission of a felony, felled by an officer’s gunshots, and taken to a hospital by the sheriff, the suspect is ‘in custody’ while hospitalized for the purpose of determining the county’s liability for his medical expenses even though he has not been formally arrested or kept under guard.” 6 Kan. App. 2d 731, Syl. ¶ 2.
The focus of these cases on the point in time when medical care is initiated is consistent with this court’s recognition that the obligation to provide medical care is rooted in the government’s duty to treat prisoners with humanity. Wesley Med. Center v. City of Wichita, 237 Kan. 807, 809, 703 P.2d 818 (1985); see Wabaunsee County, 299 Kan. at 957-58; see also Youngberg v. Romeo, 457 U.S. 307, 317, 324, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982) (“As a general matter, a State is under no constitutional duty to provide substantive services for those within its border,” but “[wjhen a person is institutionalized—and wholly dependent on the State”-—he or she has “postcommitment interests cognizable as liberty in terests under the Due Process Clause of tire Fourteenth Amendment.”); Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (Eighth Amendment to the United States Constitution requires government to provide medical care to those it punishes by incarceration because “[a]n inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.”).
Here, because Thomas was under arrest and in the KHP trooper s custody, he had no ability to seek medical care on his own. He was wholly dependent on the trooper. Under the law discussed in past Kansas appellate decisions, this means a governmental entity became liable for Thomas’ medical care since he was both a prisoner and indigent. Nothing in K.S.A. 22-4612(a) alters this past approach, and we presume that the legislature understood the law when it enacted K.S.A. 22-4612(a).
Consistent with these past authorities, we hold that under K.S.A. 22-4612(a) tire obligation of one of the statutorily specified governmental entities, such as the KHP, to pay for the medical expenses of an indigent criminal offender is triggered by the entity having custody of the indigent offender at the time the decision is made to obtain medical treatment for the offender. Because the KHP trooper had placed Thomas under arrest and took Thomas into physical custody, KHP is that governmental agency in this case and is liable. See K.S.A. 22-2202(4), (9); University of Kansas Hosp. Auth. v. Board of Wabaunsee County Comm’rs, 299 Kan. 942, 959, 327 P.3d 430 (2014).
Given that Thomas was under arrest, we need not discuss the outer parameters of what might constitute custody. We do note, however, that arrest might not always be necessaiy.
KHP also suggests that liability can shift if custody transfers to another entity. It then contends that Thomas was actually in custody of the Kansas University (KU) Police Department when he received treatment. We need not resolve this legal issue because the necessaiy factual basis was not established in KHP’s motion for summary judgment; nor has it argued that summaiy judgment is precluded because the facts on this point are controverted. See Parish, 298 Kan. 755, Syl. ¶ 1 (summary judgment movant must establish 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; party opposing motion must come forward with evidence to establish a dispute as to a material fact). KHP relies on the fact a KU police officer was present in Thomas’ room when the trooper arrived to take Thomas to jail. But the presence of an officer alone is not enough to conclude, as a matter of law, that KU police had custody of Thomas. KHP did not establish how long tire KU police officer had been present, the purpose of the officer’s presence in Thomas’ room, or tire nature of the officer’s authority.
Also, KHP takes issue with the Court of Appeals’ citation to K.S.A. 22-4613(a), arguing that tire Court of Appeals improperly shifted the burden to KHP to prove it was not liable for Thomas’ medical expenses. Although we do not read the Court of Appeals decision as burden shifting, K.S.A. 22-4613(a) does not apply in this case under our holding. Thomas was in the KHP officer’s custody when tire decision was made to seek treatment.
Conclusion
Thomas was under arrest and in KHP’s custody at the time he was taken to the hospital for treatment. Based on that custody, KPIP was liable for Thomas’ reasonable medical expense under K.S.A. 22-4612(a), which superseded the holding in Wesley. The district court correctly granted the Hospital Authority’s motion for summary judgment, and the Court of Appeals correctly affirmed the district court’s resolution of the case.
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Denied.
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The opinion of the court was delivered by
NUSS, C.J.:
Ebony R. Nguyen appeals the district courts denial of her motion, for a downward durational departure of her life sentence for felony murder. Because the district court had no discretion to depart, we reject Nguyen’s arguments and affirm.
Facts and Procedural History
The facts are undisputed. Nguyen unwittingly received counterfeit money from Jordan Turner in exchange for her marijuana. Upon discovering the deception and with the assistance of three others, Nguyen retaliated by luring Turner to a secluded location where he was shot and killed. With kidnapping serving as the underlying felony, Nguyen pled no contest to one count of felony murder under K.S.A. 2012 Supp. 21-5402(a)(2).
Before Nguyen was sentenced, she filed a motion for durational departure from a life sentence and sought a sanction of between 147 to 165 months in prison. At the hearing on the motion the district court stated it had no discretion to depart from the life sentence but, if so, it would not have granted departure:
“Well, I’ll say for the record that in my opinion, the Court doesn’t have discretion. This is an off-grid offense, and it calls for a life sentence.
“Now, on appeal, if the appellate court were to disagree with that, my position, for purposes of the record, is that I would be unable to find substantial and compelling reasons to depart. Miss Nguyen was the driving force behind the shooting in this case, and under those circumstances, it would be wholly inappropriate for the Court to depart, so if the Court did have the discretion to consider the motion to depart, the Court would deny the motion.”
Accordingly, the court denied Nguyen’s motion and imposed a fife sentence with parole eligibility after 20 years. See K.S.A. 2015 Supp. 22-3717. Nguyen timely appealed her sentence.
Our jurisdiction is proper under K.S.A. 2015 Supp. 22-3601(b) (3), (4) (maximum sentence of fife imprisonment imposed for an off-grid crime).
More facts will be added as necessaiy to the analysis.
Analysis
Issue: The district court did not err in concluding that K S.A. 2015 Supp. 21-6806(c) does not authorize a district court to depart from a life sentence for felony murder.
Nguyen argues that because K.S.A. 2015 Supp. 21-6806(c) is silent on durational departures for off-grid crimes, sentencing courts have discretion to grant them — at least for felony murder. She specifically contends this court implicitly acknowledged such discretion to depart from a fife sentence for felony murder in State v. Gleason, 277 Kan. 624, 88 P.3d 218 (2004). The State basically counters that the statute s language reveals the intent of the legislature is to prohibit durational departures from sentences for off-grid crimes like felony murder.
Nguyen further argues that once we have agreed the district court had departure discretion, several factors warrant the courts exercise of that discretion to reduce her sentence: her lack of crim inal history, her limited role in the murder, and her age and lack of maturity. But because we reject Nguyen’s first argument, we do not reach her second one.
Standard of review
Whether the district court has discretion to grant a durational departure from a felony-murder life sentence requires interpretation of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2015 Supp. 21-6801 et seq., a question of law subject to unlimited review. State v. Luarks, 302 Kan. 972, 976, 360 P.3d 418 (2015) (citing State v. Keel, 302 Kan. 560, 571, 357 P.3d 251 [2015]).
In exercising our unlimited review, we acknowledge that “‘[t]he fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained.’” Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015). A statute’s language is our paramount consideration because “ ‘ “the best and only safe rule for ascertaining the intention of the makers of any written law is to abide by the language they have used.” ’ ” State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 (2014) (quoting Gannon v. State, 298 Kan. 1107, 1143, 319 P.3d 1196 [2014] [quoting Wright v. Noell, 16 Kan. 601, 607, 1876 WL 1081 (1876)]). “When statutory language is plain and unambiguous, there is no need to resort to statutory construction. 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.” State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016).
When legislative intent cannot be derived from the plain language of the statute, this court may look to legislative history or employ other methods of statutory construction. State v. Holt, 298 Kan. 469, 474, 313 P.3d 826 (2013).
Discussion
We start our analysis by acknowledging that K.S.A. 2015 Supp. 21-6806(c) establishes the sentencing for certain off-grid crimes, including felony murder under K.S.A. 2012 Supp. 21-5402(a)(2). The sentencing statute provides:
“Violations of K.S.A. 2015 Supp. 21-5401, 21-5402, 21-5421, 21-5422 and 21-5901, and amendments thereto, are off-grid crimes for the purpose of sentencing. Except as otherwise provided by K.S.A. 2015 Supp. 21-6617, 21-6618, 21-6619, 21-6622, 21-6624, 21-6625, 21-6628, and 21-6629, and amendments thereto, the sentence shall he imprisonment for life and shall not be subject to statutory provisions for suspended sentence, community service or probation.” (Emphasis added.) K.S.A. 2015 Supp. 21-6806(c).
We next note that the exceptions listed in K.S.A. 2015 Supp. 21-6806(c) — K.S.A. 2015 Supp. 21-6617, 21-6618, 21-6619, 21-6622, 21-6624,21-6625,21-6628 and 21-6629 — do not provide any exceptions to a life sentence for felony murder. These statutes primarily provide a sentencing scheme for capital murder.
Nguyen argues this court essentially interpreted this language in a predecessor statute — K.S.A. 21-4706(c) — to answer this departure question in State v. Gleason, 277 Kan. 624. There, the district court denied the defendants request for a durational departure on his conviction of felony murder and sentenced him to life imprisonment with no possibility of parole for 20 years. We held that the defendant was not entitled to a reduced sentence despite the lighter sentences his codefendants received as part of their plea bargains in which they pled guilty to less serious offenses. 277 Kan. at 656. Nguyen argues that by reviewing the issue of departure from a life sentence in Gleason, this court implicitly acknowledged the district court had discretion to consider a departure.
But Nguyen’s reliance on Gleason is misplaced. The issue before this court concerned whether the district court was required to compare defendant’s sentence to the lesser sentences of his code-fendants, not whether the sentencing statute allowed for durational departure. 277 Kan. at 656. So, we reject Nguyens argument that in Gleason we implicitly acknowledged a district court’s discretion to depart from a life sentence for felony murder.
Moreover, since Gleason we twice have expressly stated that the life sentence for felony murder is mandatoiy. Four years after Gleason we stated: “[T]he district court imposed a mandatory life sentence for the felony murder” and declared: “The sentence imposed for [the defendant’s] felony murder, a mandatory life sentence, conforms to the statutory provisions.” (Emphasis added.) State v. Heath, 285 Kan. 1018, 1019, 179 P.3d 403 (2008). In Heath we cited the previous, substantially similar felony-murder sentencing statute in effect at the time, K.S.A. 21-4706(c), which provided in relevant part: “Violations of K.S.A. 21-3401 [(b) is felony murder] . .. are off-grid crimes for tire purpose of sentencing.. .. [T]he sentence shall be imprisonment for life and shall not be subject to statutory provisions for suspended sentence, community service or probation(Emphasis added.)
Six years after Heath we similarly pronounced in State v. Brown, 300 Kan. 542, 562-63, 331 P.3d 781 (2014):
“A person convicted of felony murder is subject to a mandatory sentence of life imprisonment. See K.S.A. 21-4706(c). A person serving a life sentence for a felony murder committed after July 1,1999, becomes parole eligible after 20 years of confinement. K.S.A. 22-3717(b)(2).” (Emphasis added.)
These declarations are consistent with the plain language of K.S.A. 2015 Supp. 21-6806(c) — and its predecessor K.S.A. 21-4706(c) — which provides that a sentence for felony murder “shall be imprisonment for life.” (Emphasis added.) See also State v. Brown, 303 Kan. 995, 1006, 368 P.3d 1101 (2016) (describing K.S.A. 2014 Supp. 21-6806[c] as an example of “mandatory life sentences assigned by the legislature for off-grid crimes”).
Despite the foregoing, in none of these decisions did we expressly analyze this particular statutory phrase — ”the sentence shall he imprisonment for life” — with the language that immediately follows it: “and shall not be subject to statutory provisions for suspended sentence, community service or probation.” K.S.A. 2015 Supp. 21-6806(c). Not surprisingly, Nguyen and the State differ on the meaning and possible significance of this language and whether it introduces ambiguity into tire statute.
Nguyen argues that by fisting “suspended sentence, community service or probation” the legislature merely prohibited them and any similar unlisted dispositional departures but did not prohibit the durational departure she requested. The State responds this language shows that the intent of the legislature was to disallow any departures.
To assist our analysis, we observe that after Nguyen committed her crime in March 2013, the legislature added language to another statute to specifically govern felony-murder sentences. Although the amendment to the statute applies to felony murders committed after July 1,2014, it is of guidance in determining the legislative intent in K.S.A. 21-6806(c). Cf. Brown, 303 Kan. at 1006 (court does not interpret statutes in isolation but considers provisions of an act in pan materia with view to reconciling, bringing provisions into workable harmony) (citing State v. Hobbs, 301 Kan. 203, 210-11, 340 P.3d 1179 [2015]).
The amendment to that statute, K.S.A. 2015 Supp. 21-6620, provides in relevant part:
“[A] defendant convicted of murder in the first degree as described in subsection (a)(2) [felony murder] of K.S.A. 2015 Supp. 21-5402, and amendments thereto, shall be sentenced to imprisonment for life and shall not be eligible for probation or suspension, modification or reduction of sentence. In addition, the defendant shall not be eligible for parole prior to serving 25 years’ imprisonment, and such 25 years’ imprisonment shall not be reduced by the application of good time credits. No other sentence shall be permitted.” (Emphasis added.) K.S.A. 2015 Supp. 21-6620(b)(l).
When, as here, language has been added to an existing statute, the issue often becomes whether the new language is meant to constitute substantive legislative changes or simply to codify prior caselaw, e.g., to clarify. See Stueckemann v. City of Basehor, 301 Kan. 718, 745, 348 P.3d 526 (2015) (distinguishing substantive legislative changes from mere codification of prior caselaw); see also Brennan v. Kansas Insurance Guaranty Ass’n, 293 Kan. 446, 458, 264 P.3d 102 (2011) (‘When an original statute is ambiguous, the legislative purpose may be to clarify the statute s ambiguities, not to change the law.”); Estate of Soupene v. Lignitz, 265 Kan. 217, 222, 960 P.2d 205 (1998) (amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act).
Faced with our decisions in Heath in 2008 and Brown in 2014, the legislature could have chosen to change this caselaw. In other words, it could have chosen to make substantive changes in K.S.A. 2015 Supp. 21-6806 and clearly establish that the life sentence for felony murder was not mandatory — i.e., durational departures were permitted. But the legislature did not do so. See Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008) (when legislature does not modify statute to avoid a standing judicial construction of that statute, tire legislature is presumed to agree with that judicial construction). Instead, it chose to address the subject of felony-murder sentences in K.S.A. 2015 Supp. 21-6620, and the statute’s amended language certainly cannot be said to override Heath and Brown. The amendment provides that defendant “shall not be eligible for . . . modification or reduction of sentence” and “the defendant shall not be eligible for parole prior to serving 25 years’ imprisonment, and such 25 years’ imprisonment shall not be reduced by the application of good time credits. No other sentence shall be permitted.” K.S.A. 2015 Supp. 21-6620(b)(l).
Indeed, the legislature chose the opposite approach to substantive change. By including disqualifying language far beyond the concepts of probation and suspension in 21-6620, the legislature essentially only codified the caselaw. We therefore conclude that these additions are merely meant to clarify the legislative intent: the mandatory sentence for felony murder is life imprisonment.
The State makes additional arguments that we conclude support the holding that a life sentence is mandatory for felony murder, i.e., no departures are permitted. The State first notes that the general sentencing statute for on-grid crimes, K.S.A. 2015 Supp. 21-6815, contains language specifically authorizing departures. Subsection (a) provides in relevant part: “[T]he sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines unless the judge finds substantial and compelling reasons to impose a departure sentence.” (Emphasis added.) Subsections (c)(1) and (2) then provide the nonexclusive lists of mitigating and aggravating factors which may be considered by the judge in determining whether substantial and compelling reasons for a departure exist.
The State next observes that while mandatory life sentences for some types of off-grid crimes can nevertheless be eligible for departure, their empowering statutes are explicit in their departure authorization. It points to the statute controlling Jessica’s Law sentencing, K.S.A. 2015 Supp. 21-6627, which provides for a mandatory minimum of imprisonment for certain offenders. Jessica’s Law, like K.S.A. 2015 Supp. 21-6806(c), generally prohibits departures for its off-grid crimes. And it specifically includes language echoing that of K.S.A. 2015 Supp. 21-6620(b)(l):
“When a person is sentenced pursuant to subsection (a) or (b), such person shall be sentenced to a mandatory minimum term of imprisonment of not less than 25 years, 40 years or be sentenced as determined in subsection (a)(2) or subsection (b)(2), whichever is applicable, and shall not be eligible for probation or suspension, modification or reduction of sentence. In addition, a person sentenced pursuant to this section shall not be eligible for parole prior to serving such mandatory term of imprisonment, and such imprisonment shall not be reduced by the application of good time credits.” (Emphasis added.) K.S.A. 2015 Supp. 21-6627(c).
Rut unlike K.S.A. 2015 Supp. 21-6806(c), after establishing a mandatory minimum term of imprisonment (not less than 25 years), Jessica’s Law goes on to expressly authorize, and provide a procedure for, departing from this mandatory sentence: “[T]he sentencing judge shall impose the mandatory 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.” (Emphasis added.) K.S.A. 2015 Supp. 21-6627(d)(l); see also State v. Spencer, 291 Kan. 796, 803, 248 P.3d 256 (2011).
Building on tire State’s argument, we also doubt that the legislature intended for the crimes it identified in the first sentence of K.S.A. 2015 Supp. 21-6806(c)—21-5401 (capital murder); 21-5402 (first-degree murder); 21-5421 (terrorism); 21-5422 (illegal use of weapons of mass destruction); and 21-5901 (treason) — to be eligible for a durational departure from a life sentence. Our skepticism is particularly valid when the legislature has failed to provide any guidance to the sentencing court on when and how to depart from these most serious crimes. Compare K.S.A. 2015 Supp. 21-6627(d)(1) (Jessica’s Law sentencing statute provides guidance on how and when to depart) and 21-6815 (general departure statute for presumptive sentences provides guidance on how and when to depart). These two statutes further demonstrate that had the legislature intended to allow departures from a mandatory fife sentence for felony murder, it clearly knew how to enact such provisions. Accordingly, we hold that by failing to provide an exception for felony murder, the legislature intended to prevent departures from the mandatoiy life sentence. See State v. Looney, 299 Kan. at 906 (The most fundamental rale of statutory construction is that the intent of the legislature governs if that intent can be ascertained.).
As a result, we hold that K.S.A. 2015 Supp. 21-6806(c) does not give district courts discretion to depart from a life sentence for felony murder. Given this holding, we need not consider the merits of Nguyens motion for downward durational departure.
The decision of the district court is affirmed. | [
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Greene, J.:
Helmerich & Payne, Inc. (Taxpayer) appeals the district court’s affirmance of a decision of the State Board of Tax Appeals (BOTA) establishing the value for ad valorem tax purposes of an oil and gas leasehold interest in Seward County for tax year 2001. Taxpayer argues that BOTA’s approach was based on unsupported facts, relied on a misapplication of law, and failed to follow prescribed procedures for valuation of oil and gas interests. We reverse and remand with directions.
Factual and Procedural Background
Sometime in early 2000, Taxpayer recompleted a gas well for oil production on its “Home Royalty A-2” lease in Seward County. First oil production was achieved in late June 2000, and actual monthly oil production thereafter was as follows:
July 4,065 barrels
August 3,917 barrels
September 2,677 barrels
October 2,540 barrels
November none (down for repairs)
December 2,356 barrels
January 2001 2,256 barrels
February 2001 1,553 barrels
March 2001 1,721 barrels
Taxpayer requested use of a 50% decline rate based on actual production for calendar year 2000 and confirmed this rate with production data from the first quarter of 2001. In contrast, the appraiser defaulted to an assumed 30% decline rate, testifying that “30 percent is not always used, but in your first year there’s — unless it produced a whole year, you really can’t see a decline rate. And that’s why — that’s where that 30 percent comes in handy for the Taxpayer and the County.” Use of these respective decline rates in the prescribed formula resulted in a significant variation in taxable value; the County valued the working interest at $936,805, and the Taxpayer valued the same interest at $345,062.
After a hearing, BOTA affirmed the County’s valuation, reasoning as follows:
“6. The Taxpayer requests that the subject property be appraised using a maximum decline rate of 50%. This decline rate is calculated mainly using production figures taken in 2001.
“7. The facts show that this is a new well, and should be appraised as such. Page five, of die 2001 Oil and Gas Guide, gives guidance as to how such wells are to be appraised. It suggests that an assumed 30% decline rate be used when the actual decline rate cannot be established. Further on it states that requests for a steeper decline curve should be documented by production decline.
“8. In this case, the production decline data supplied by the Taxpayer comes from a period well after the appraisal date, thereby making it irrelevant for appraisal as of Januaiy 1, 2001. The County did however, consider utilizing back to back quarters comparing the last quarter of 2000 to the first quarter of 2001. This analysis is commonly used where production figures for the whole year are hard to come by. In this analysis, the decline rate is slightly over 30%. Based on the best evidence available to it when the subject property was appraised, the Board finds that the County correctly appraised the subject property using a 30% decline rate. Therefore, the Board finds that the County’s valuation of the subjectproperty should be upheld.”
Taxpayer appealed BOTA’s decision to the district court, which affirmed BOTA after oral argument based upon the record at BOTA. This appeal followed.
Statutory Guidelines and Theory of Oil and Gas Leasehold Valuation for Ad Valorem Taxation in Kansas
For purposes of valuation and taxation in Kansas, all oil and gas leases and wells are considered personal property. K.S.A. 79-329. Persons who own such personal property are required to file a statement of assessment on standard rendition forms on or before April 1 of each tax year. K.S.A. 79-332a. In practice, the county appraiser then reviews the taxpayer’s rendition and determines whether changes to the valuation are required and thereafter notifies the taxpayer of the appraised value. See K.S.A. 2004 Supp. 79-1460. The county appraiser is obligated to follow the Oil and Gas Appraisal Guide (Guide) prescribed by the Director of Property Valuation but may deviate from the Guide on an individual piece of property “for just cause shown and in a manner consistent with achieving fair market value.” K.S.A. 79-1456. In determining the value of such property, the appraiser must also consider statutory factors of value:
“Except as otherwise provided in subsection (b) of this section, in determining the value of oil and gas leases or properties the appraiser shall take into consideration tire age of the wells, the quality of oil or gas being produced therefrom, the nearness of the wells to market, the cost of operation, the character, extent and permanency of the market, the probable life of die wells, the quantity of oil or gas produced from the lease or property, the number of wells being operated, and such other facts as may be known by the appraiser to affect the value of the lease or property.” K.S.A. 2004 Supp. 79-331(a).
Consideration of these statutory factors is mandatory; failure to taire into consideration any of these statutory factors will invalidate the assessment. See Garvey Grain, Inc. v. MacDonald, 203 Kan. 1, 14-15, 453 P.2d 59 (1969). In the context of oil and gas valuation, failure to give consideration to known production decline in making an assessment may be considered inadequate consideration of the “probable life of the wells,” thus rendering the assessment arbitrary, capricious, and void as a matter of law. Angle v. Board of County Commissioners, 214 Kan. 708, 713, 522 P.2d 347 (1974).
Our Supreme Court recently addressed the theory of oil and gas valuation in Kansas in Board of Ness County Comm’rs v. Bankoff Oil Co., 265 Kan. 525, 960 P.2d 1279 (1998), where the following explanation was quoted with approval:
“ ‘[T]he theory of the [Oil and Gas Appraisal Guide issued by the Division of Property Valuation] is that we are appraising the reserves that are in the ground. And so the guide, the basic mechanics of the guide is to discount income over a period of time to reflect the production capabilities of that reserve. And then it combines with that a rate of decline which is indicating that that reserve is depleting. That is combined with a discount, discounting the money — for the money that is not received until a later time. You get a present worth factor, which is a multiple of money, and that’s multiplied times the value, or price of the oil, times the production; and that’s to indicate a probable reserve value, from which is deducted the expenses for lifting the oil, to get a net working interest. Then they add the equipment, production equipment, to that, for the working interest. So it’s based on the probable life of the reserve, and the probable dollars per barrel that will be received by the operator, or the working interest.’ ” 265 Kan. at 529.
As then noted by the court, this theory provides the basis for a mathematical formula to compute gross reserves:
_ X _ = _ X _ = _
1. Total 2. Net Price 3. Estimated 4. Present 5. Estimated
Amount as of Jan. 1 Gross Income Worth Factor Gross Reserve
(barrels) Value
Production
265 Kan. at 529. Finally, the court recognized that “[i]t is apparent that the determination of the decline to be applied to the lease becomes the most critical factor in establishing its valuation.” 265 Kan. at 530.
Standard of Review
Judicial review of orders of BOTA is governed by K.S.A. 77-621. For purposes of this appeal, application of this statute requires the appellate court to grant relief if: (i) the agency has erroneously interpreted or applied the law, K.S.A. 77-621(c)(4); (ii) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure, K.S.A. 77-621(c)(5); (iii) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, K.S.A. 77-621(c)(7); or (iv) the agency action is otherwise unreasonable, arbitrary, or capricious, K.S.A. 77-621(c)(8).
On appeal of BOTA’s decision, the party complaining bears the burden of demonstrating that the agency erred. K.S.A. 77-621(a)(1). When the district court has reviewed an agency decision prior to this court’s review, we focus on the agency action and apply the same standards of judicial review. Connelly v. Kansas Highway Patrol, 271 Kan. 944, 964, 26 P.3d 1246 (2001), cert. denied 534 U.S. 1081 (2002).
When construing tax statutes, imposition provisions are considered penal in nature and must be construed strictly in favor of the taxpayer. In re Tax Appeal of Harbour Brothers Constr. Co., 256 Kan. 216, 223, 883 P.2d 1194 (1994). Interpretation of any statute is a question of law over which this court has unlimited review. Matjasich v. Kansas Dept. of Human Resources, 271 Kan. 246, 250-51, 21 P.3d 985 (2001). Although BOTA’s decisions in its area of expertise are given deference, this court will take corrective steps if BOTA’s actions are erroneous as a matter of law. In re Tax Appeal of Intercards, Inc., 270 Kan. 346, 349, 14 P.3d 1111 (2000).
Is BOTA’s Finding that Taxpayer’s Requested Decline Rate Was “Calculated Mainly Using Production Figures Taken in 2001” Supported by Evidence That Is Substantial When Viewed in Light of the Record as a Whole?
Taxpayer first argues that BOTA’s finding that Taxpayer’s requested decline rate of 50% was “calculated mainly using production figures taken in 2001” was not adequately supported by the record. We agree. This finding is a mischaracterization of Taxpayer’s approach to value and is not supported by the record.
Taxpayer’s requested decline rate was calculated using production numbers for July 2000 through December 2000. Taxpayer’s production manager testified at the BOTA hearing that die requested decline rate “was reached originally with just the production we had through the calendar year 2000. It was confirmed with production through April 2001 and a prorated number for the first 14 days of May in 2001. Then taking all current data up through April 2002, it was once again confirmed.”
BOTA misstated the evidence in concluding Taxpayer’s requested rate was “calculated mainly using production figures taken in 2001,” when the record shows it was calculated using 2000 figures and merely confirmed with figures from 2001 and 2002. BOTA tiien based its decision to adopt the County’s assumed 30% decline rate at least partially on the fact that BOTA erroneously perceived Taxpayer’s approach as based on periods beyond the calendar year preceding assessment. Because this factual finding was not supported by evidence that is substantial when viewed in light of the record as a whole, we are obligated to set aside BOTA’s finding in addressing the ultimate issue of leasehold valuation. See K.S.A. 77-621(c)(8).
Did BOTA Err in Declaring the Production Data for 2001 “irrelevant for appraisal as of January 1, 2001”?
Taxpayer next argues BOTA misapplied applicable law by failing to consider the subject well’s post-valuation production data and in finding the well’s production data for 2001 was “irrelevant for appraisal as of January 1,2001,” contrary to Bankoff, 265 Kan. 525. Taxpayer further argues that BOTA made inconsistent findings when it found that 2001 post-valuation date production data was irrelevant but simultaneously approved the County’s use of the same data.
We conclude that BOTA’s statement regarding the irrelevance of the 2001 data is an erroneous interpretation or application of the law because it is contrary to the Guide and the holding in Bankoff. According to our Supreme Court,
“[a]llowmg consideration of production data collected after January 1 when alease suffers a decline late in the year conforms to generally accepted appraisal procedures in the oil and gas industry and is consistent with the definition of fair market value of K.S.A. 79-503a, despite the apparent incongruity with the statement that property is to be assessed as if a sale had been consummated on January 1.
“Refusing to allow consideration of post-January 1 production data when assessing an oil or gas lease that has suffered a decline in production would be to ignore relevant and available factual information pertaining to the lease’s future productivity and income. This result is not required by K.S.A. 79-503a, is contrary to assessment principles embodied in the statutory scheme, and denies the expertise wielded by the Director of Property Valuation in adopting the Guide.” 265 Kan. at 543-44.
The County is incorrect in stating that Bankoff does not apply. Bankoff essentially recognized the importance of considering all available data, whether or not available on the valuation date.
“Under our ad valorem taxation scheme, the valuations are being reported, altered, tested, appealed from, and determined during essentially the first half of the tax year. An overview of the entire process and consideration of the numerous statutes makes it clear that all available appraisal information is to be utilized regardless of whether the data originated before, on, or after January 1 of the tax year.” (Emphasis added.) 265 Kan. at 543.
In this case, Bankoff allows consideration of post-valuation production data to confirm prevaluation market trends in determining future productivity and earning potential. BOTA erred as a matter of law in declaring the 2001 production data “irrelevant” to deter mination of the fair market value of the subject interest. See K.S.A. 77-621(c)(4); Bankoff, 265 Kan. at 544.
Did BOTA Err in Upholding the County’s Valuation?
Finally, Taxpayer argues generally that BOTA’s errors are “outcome determinative” and warrant reversal of the valuation determined, arguing that the County’s approach departs from prescribed procedure set forth in the Oil and Gas Appraisal Guide and that the Taxpayer’s approach conforms to the Guide. Both parties are in agreement that the subject property should be treated as a “new lease” for purposes of identifying the applicable provisions of the Guide. Those provisions, in their entirety, state as follows:
“Use the first few months of production to establish the decline rate.
“If the first few months of production and all data available indicate no decline, it is suggested the Appraiser consider the use of an assumed 30% annual decline rate and evaluate tifie property on this basis. This, however, is not automatic and is to be used only when the actual decline rate cannot be established. Use of a proven neighborhood decline rate may be considered appropriate after proper consideration for flush production, but only when the new well or wells are completed in the same reservoir. Requests for consideration of percentage decline above 30% or adjustment by the Appraiser below 30% should be documented by production decline, water cut and/or gas oil ratio curves.
“Abnormal sharp decline is usually found with initial production from newly completed wells on new leases, added wells on existing leases, and recompletions or workovers on existing leases. The Appraiser should consider application of historic declines when actual declines are uncertain or are obscured from lease development or workovers. A lease with initial ‘flush’ production will show an abnormal sharp decline followed by change in the decline rate to normal rate of decline. If the property shows a constant rate of decline after the ‘flush’ production, the appropriate present worth factor for that rate should be used with production annualized for tire period reflecting the stabilized production period.
“A decline curve, with downtime noted, should be submitted with the filing when an adjustment for abnormal decline is requested. No production period less than four to six months should be used to establish an abnormal decline. In addition to decline curves, water cut, and/or gas oil ratio curves may be filed with the filing to document changes in reservoir behavior.” 2001 Oil and Gas Appraisal Guide, pp. 5-6.
The Taxpayer relies on that provision requiring use of “the first few months of production to establish the decline rate” whereas the County argues that there is obvious “flush” production in the first 2 months after recompletion that should not be considered in calculating decline rate, requiring use of the “constant rate of decline after the ‘flush’ production.” (Emphasis added.) The County relies on that provision authorizing “use of an assumed 30% annual decline rate,” whereas the Taxpayer argues that “this is not automatic and is to be used only when the actual decline rate cannot be established.” The Taxpayer argues that it relies on “all data available,” whereas the County argues that “no production period less than four to six months should be used to establish an abnormal decline.”
It is clear to this court that the Guide alone may not provide sufficient precision to resolve the issues framed in this appeal. Accordingly, in resolving apparent ambiguities in the Guide, we rely on principles of law set forth in our statutory scheme as interpreted and applied by our appellate courts. To the extent that the Guide is not consistent with these principles of law, it is erroneous as a matter of law. See Garvey Grain, 203 Kan. at 12.
Flush Production Data
First, we must determine what should be and what should not be considered eligible data from which to determine annual production and decline rate for the prescribed formula. The County argues that July and August 2000 production should not be considered because the recompleted well was experiencing flush production. The Taxpayer argues and the district court held that the County’s failure to raise this issue at BOTA bars consideration of the argument on appeal. We hold that, whether or not argued at BOTA, flush production is so common and so prominently addressed in the Guide and our case law that it cannot be ignored.
The Guide advised that the “prior year production may not represent tire production capability of the lease for several reasons,” including when “[l]ease production began during die year with ‘gusher’ characteristics (flush production) followed by rapid decline to a stabilized level.” Moreover, for new leases, the Guide is explicit in stating that where a more constant rate of decline is apparent “after the ‘flush production,’ ” this more constant rate of decline should be utilized. Additionally, we know from Bankoff that “flush production” is the reason for the discount provided in K.S.A. 79-331(b) and that this subsection “compels appraisers to anticipate a decline in production, even though no decline is apparent from a lease’s prior production history.” 265 Kan. at 540. Bankoff also recognizes that the failure to account for flush production would “result in an inaccurate valuation and assessment.” 265 Kan. at 541-42; see State ex rel. Stephan v. Martin, 230 Kan. 747, 641 P.2d 1011 (1982).
For all of these reasons, we hold that BOTA erred as a matter of law in ignoring the impact of flush production apparent in the months of July and August 2000 for the subject property. We decline to remand for a finding as to flush production because the phenomena can and should be identified exclusively from an analysis of raw production data. 2001 Oil & Gas Appraisal Guide, pp. 2-3 (requiring adjustment of production for “gusher” characteristics based solely on rendition data). Here, the production from both July and August 2000 exceeded any subsequent monthly production by more than 50%. Production data from these months was clearly abnormal and should not be considered for purposes of determining decline or for purposes of determining annual production as factors to be employed in the formula to calculate gross reserve value.
First Quarter 2001 Production Data
As discussed and concluded above, we follow Bankoff in holding that first quarter production data from the subject property was relevant to “the lease’s future productivity and income”; clearly the information is relevant to determination of decline rate here just as it was in Bankoff.
Proper Use of Data in Determining Decline Rate and Annual Production
Under the Guide, proper valuation of any oil well begins with a determination of the annualized production for that well. BOTA did not address the discrepancy between the parties’ annualized production figures. The County used the proper calculation but improperly included the months of flush production. Taxpayer merely multiplied the December 2000 production by 12 — a method not recommended by the Guide.
For leases which have produced less than 12 months during the prior year but commenced production prior to July 1, page 3 of the Guide recommends calculating the annualized production “by dividing the production for the period of the prior year that the lease did produce by the number of days it produced to ascertain the bbls/day and then multiply the B/D by 365 to calculate the annualized production.” After disregarding flush production, the subject well produced for 92 days and produced 7,573 barrels, or 82.3 barrels per day, yielding an annualized production of 30,045 barrels.
Having established the annual production for the formula, we address the proper approach to determine decline rate and its corresponding present worth factor. In Bankoff, the Supreme Court affirmed BOTA’s reliance on two approaches to determine decline in similar circumstances: (i) comparison of “back to back quarters,” specifically the last quarter of the prior year compared to the first quarter of the tax year; and (ii) comparison of the previous year s production with an annualization of first quarter production from the tax year. In Bankoff, these approaches achieved the same rate of decline but this may have a been mathematical coincidence.
The back-to-back quarter analysis is acknowledged by the Guide, especially where “the production is manifesting an accelerated rate of depletion.” Guide, p. 6. Here, BOTA recognized that back-to-back quarter analysis “is commonly used where production figures for the whole year are hard to come by,” but neither BOTA nor the County performed the analysis correctly. In these circumstances, where the lease was down for repairs during 1 month of the last quarter 2000, production from the final 3-month period of production (September, October, and December) should be compared to production from the first quarter of 2001. Comparing the sum of (adjusted) the last quarter of 2000 [7,573 barrels] to the sum of first quarter of 2001 [5,530 barrels], the quarterly decline is 26.9%, which — based on the table provided in the Guide — corresponds to an annual decline in excess of 50%.
The alternative analysis adopted by BOTA in Bankojf was not performed here. We note that the Seward County Appraiser performed an iteration of this analysis, however, and concluded that the lease was experiencing a 36% annual decline. The mathematical problem with the appraiser s iteration is that she annualized comparative data from 6 months in 2000 and 3 months in 2001. This annualization tends to flatten the decline curve that would be expected if one had a complete production history from 1 or both years; i.e., the hypothetical missing production from early 2000 would be greater than the final 6 months, and the projected missing production from later in 2001 would be less than the first 3 months. Where data is incomplete, the most accurate mathematical calculation of decline employs actual production for equal time periods on both sides of the fraction, as is tire case with the back-to-back quarter analysis approved above.
In order to confirm the accuracy of the result achieved by the singular use of back-to-back quarters, we examine the record to determine whether other evidence tends to support or refute this result. First, we note that the Taxpayer supported its decline rate request with engineering curves produced in the ordinary course of its business; all such curves demonstrate a projected decline rate in excess of 50% for the subject property. Second, we note that Taxpayer also submitted two engineering reserve analyses demonstrating that gross estimated oil recovery for the subject property was nearly 20% less than the gross recovery associated with the 50% decline rate; clearly, use of the 50% rate has not undervalued this property. Third, we note that monthly decline for the months in calendar year 2000following flush production averaged 6%, thus corresponding to an annual decline far in excess of 50%. Fourth, we note that first production in late June 2000 barely disqualified this property for special treatment under K.S.A. 2004 Supp. 79-331(b), applicable to new wells producing after July 1 of the calendar year preceding the tax year; if 79-331(b) had applied and its methodology was adopted with known data for the subject property, the resulting value would he within 2% of the working interest value when calculated with a decline rate in excess of 50%. Finally, even if we were to ignore flush production and tire 2001 data, actual production achieved in calendar year 2000 by the new well clearly supports a decline rate in excess of 50%.
In summary, we conclude that BOTA: (i) based its action on a determination of fact, i.e., that Taxpayer calculated its decline rate “mainly using production figures taken in 2001,” that is not supported by evidence that is substantial when viewed in light of the record as a whole, requiring relief pursuant to K.S.A. 77-621(c)(8); (ii) erroneously applied the law in considering first quarter 2001 production “irrelevant” for valuation purposes, requiring relief pursuant to K.S.A. 77-621(c)(4); (iii) failed to follow prescribed procedure in adopting an assumed decline rate when there was adequate data to establish a rate, requiring relief pursuant to K.S.A. 77-621(c)(5); and (iv) failed to follow prescribed procedure in adopting tire County’s purported “back-to-back quarter” comparison that was mathematically flawed, requiring relief pursuant to K.S.A. 77-621(c)(5).
In granting relief pursuant to K.S.A. 77-622(b), we reverse the district court, vacate the order of BOTA, and we remand to the district court with directions to remand to BOTA for a determination of the value of the subject property in a manner not inconsistent with this opinion, together with a calculation and order of any refunds to the Taxpayer and royalty interest that may be required as a result.
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Green, J.:
Billy Anderson appeals from his convictions of possession with the intent to sell methylenedioxymethamphetamine (MDMA) in violation of K.S.A. 65-4163(a) and failure to affix a tax stamp to a controlled substance in violation of K.S.A. 79-5204. The issue raised by Anderson on appeal is whether the trial court erred in denying his motion to suppress evidence. The State raises two arguments as to why Anderson’s motion was properly denied. The State maintains that officers had reasonable suspicion of drug activity to detain Anderson and that suspicion ripened into probable cause to arrest Anderson for illegal drug activity. We disagree. Nevertheless, we do agree that the totality of the circumstances here led the officers to reasonably suspect Anderson of illegal drug activity. As a result, the officers were justified in detaining Anderson after the traffic stop investigation had been completed to further investigate their suspicion of illegal drug activity. Nevertheless, once the officers discovered no evidence or information implicating Anderson in any illegal drug activity, the officers were no longer justified in continuing their detention of Anderson. Any further detention of Anderson at that point could only be justified by probable cause or consent, and the officers had neither.
The State also argues that there was reasonable suspicion to detain Anderson for a suspected parole violation and that the subsequent arrest for the violation was properly based on an arrest and detain order under K.S.A. 2004 Supp. 75-5217(a). We again disagree. A plain reading of K.S.A. 2004 Supp. 75-5217(a) reveals that a law enforcement officer is deputized with the authority to arrest an individual who has allegedly committed a parole violation when that officer has been given the written arrest and detain order detailing the violation. Because the officers, in this case had not been given the written arrest and detain order before arresting Anderson, they lacked authority to make the arrest. Moreover, because a parole violation is not a crime, the suspected parole violation would not have furnished to the officers reasonable suspicion jus tifying a Terry stop and detention. Because the continued detention and arrest of Anderson was unlawful, the seized evidence should be suppressed in this case. As a result, we determine that the trial court erroneously denied Anderson’s motion to suppress. Accordingly, we reverse.
Anderson’s convictions in this case stem from events that occurred on July 30, 2003. On that date, Officer Brad Elmore was surveilling a Wichita Amoco station where the cashier, Umanah Smith, had been arrested the year before for possession of cocaine and marijuana. During the past several years, Elmore had made more than 20 drug-related arrests of individuals leaving the Amoco station. Moreover, the police had received numerous complaints about drug activity occurring at the Amoco station.
While Elmore was observing the Amoco station in an unmarked car on July 30, he saw Anderson drive into the parking lot and enter the station. Anderson was wearing red and white which were colors that Elmore knew were worn by Bloods gang members. Elmore thought that Anderson might be contacting Smith because he knew that gang members are commonly involved in drug activity and that Smith was a Bloods gang member who was involved in drug activity. Samuel Cobos, a documented Vato Loco Boy gang member, was with Anderson and went inside the station with him. Elmore’s partner had received information in the past that Cobos was involved in drug activity.
While Anderson and Cobos were inside the Amoco station, Elmore ran the tag on Anderson’s truck and discovered that it was from Enterprise Leasing. It had been Elmore’s experience that individuals involved in drug activity commonly use rental cars to conduct their dealings.
Approximately 5 minutes after Anderson and Cobos entered the Amoco station, they came out, got back inside the truck, and drove out of the parking lot. Elmore noticed that Anderson was carrying a sack when he left the station. Although Elmore stated that it was uncommon to see people leaving with sacks from the Amoco station, he did not find it suspicious. Apparently, the Amoco station was also a convenience store that sold various food items.
When Anderson and Cobos left the Amoco station, Elmore followed them in his unmarked car to the parking lot of an apartment complex. Elmore noticed that four Hispanic men who were standing in the parking lot gathered around Anderson’s truck when it stopped. Elmore drove around the parking lot to find a suitable place to park and watch the truck. Nevertheless, the truck was gone by the time Elmore got to the other side of the parking lot. Elmore then saw Anderson’s truck exiting the parking lot. Elmore thought that possibly a drug transaction had occurred based on the short amount of time during which the meeting took place, as well as the number of people involved. In Elmore’s past experience, a lot of individuals conduct drug transactions in parking lots around other people because it does not look so suspicious and because it is safer than going into someone’s home.
After Anderson left tire parking lot of the apartment complex, he drove back to the Amoco station. Anderson went inside the Amoco station for a couple of minutes, returned to his truck with a different individual than had been with him the first time, and drove away from the Amoco station. As Elmore was following directly behind Anderson’s truck, he noticed that Anderson increased his speed. Elmore’s speedometer registered 50 miles per hour in a 35-mile-per-hour zone. In addition, Elmore noticed Anderson’s truck cross the solid yellow line and drive on the left side of the line for a “couple” of hundred feet.
Based on his observations, Elmore radioed other officers in the area to stop Anderson for these traffic violations. Officer Eddy Padrón, who was traveling in a marked police car, heard Elmore’s request and stopped the truck at approximately 10:35 p.m. Officer Daniel McFarren, as well as another officer, arrived shortly thereafter.
Upon approaching the truck, Padrón advised Anderson that he was being stopped for a traffic violation. Padrón obtained the driver’s licenses of both Anderson and the passenger, Cornell Golston. Moreover, Padrón obtained the rental agreement from Anderson and determined that everything was in order. McFarren spoke with Golston and asked what he and Anderson were doing. Golston told McFarren that he and Anderson were getting some food. McFarren noticed that Golston was eating crackers and sardines and that there was a white plastic bag containing food in the truck.
While running a warrants check and a driver’s license check, Padrón was informed that both Anderson and Golston were documented gang members and that Anderson was on supervised release. Nevertheless, the checks revealed that there were no arrest warrants for either Anderson or Golston and that Anderson’s driver’s license was valid.
Before returning to Anderson’s truck, Padrón spoke with McFarren who related that he had previously stopped Anderson for traffic violations, that Anderson had denied consent to search, and that Anderson might be involved in drug activity. Actually, McFarren had previously stopped Anderson on two occasions. Approximately 1 week before the July 30 incident, McFarren stopped Anderson for traffic violations. At that time, McFarren had received information from another officer that narcotics detectives were looking into Anderson’s activities relating to narcotics trafficking. In addition, McFarren had stopped Anderson several months before tire July 30 incident but had not discovered any illegal drugs. During that stop, McFarren learned that Anderson was carrying $4,000 on his person.
After learning the information from McFarren, Padrón told McFarren to contact their sergeant to have a drug dog sent to their location. Padrón then returned to die truck, asked Anderson to step outside of the truck, and conducted a pat-down search. Padrón indicated that he conducted the pat down because he knew that gang members usually carry guns for protection. Padrón did not find any weapons on Anderson.
After conducting the pat-down search, Padrón had Anderson sign the traffic citation. In addition, Padrón returned Anderson’s and Golston’s driver’s licenses. After Anderson signed the citation and was given a copy, Padrón then asked Anderson for consent to search die truck. When Anderson denied consent, Padrón told Anderson that a drug dog was on its way and directed Anderson to die sidewalk. Padrón admitted that Anderson was not free to go at that point.
Padrón then asked Golston to step out of the truck. While performing a pat-down search, Padrón noticed there was a baggie sticking out of Golston’s shoe. When Padrón asked Golston about the baggie, Golston replied, “That’s just a little bit of weed, man.” Padrón pulled the baggie out of Golston’s shoe and discovered that it contained marijuana. Padrón then placed Golston under arrest. During a more thorough search, Padrón found narcotics pills in Golston’s other shoe, as well as over $1,300 on Golston’s person.
A detective eventually arrived with a drug dog which alerted on the truck. The officers then searched the truck but did not find anything of evidentiary value. According to Padrón, during the time that the dog and the search were taking place, Officer Faustino Naldoza was attempting to contact a parole officer to determine if Anderson could be arrested for a parole violation. Nevertheless, according to Naldoza, he did not attempt to contact a parole officer until after the search produced nothing of evidentiary value. In fact, Naldoza’s report indicated that after nothing was found inside the truck, the officers decided to contact the Kansas Department of Corrections (KDOC) Parole Enforcement to try and obtain an arrest and detain order for Anderson. Naldoza made several phone calls but was unable to contact a parole officer. Padrón then contacted Richard Sackhoff who was a special enforcement officer for the KDOC but was not Anderson’s parole officer.
Padrón explained to Sackhoff that they had stopped Anderson who was on supervised release and was flagged as a gang member and that Anderson had been with Golston who was in possession of marijuana and was also a gang member. According to Sackhoff, he verified that Anderson was on parole and told Padrón that he was issuing an arrest and detain order and that officers could take him into custody. Sackhoff told Padrón that he would leave a copy of the arrest and detain order in the front door of his home for an officer to pick up. The arrest and detain order introduced at the hearing was dated July 31, 2003.
After Padrón received the oral authorization from Sackhoff, the officers decided around 11:48 or 11:49 p.m. on July 30 to take Anderson into custody under the arrest and detain order. When officers approached Anderson and tried to arrest him, Anderson fled. Officers pursued Anderson, found him hiding underneath a truck in a construction area, and arrested him. During the chase, one of the officers saw Anderson trying to get rid of some plastic baggies near a trash dumpster. These baggies contained blue pills and crushed powder. A baggie containing a similar substance was found in Anderson’s shoe after he was arrested. Testing indicated that the recovered substance contained MDMA, commonly referred to as ecstasy.
In August 2003, Anderson was charged with possession of MDMA with intent to sell and failure to affix a tax stamp to a controlled substance. In October 2003, Anderson moved to suppress the drug evidence. Anderson argued that the detention after the issuance of the traffic citation violated the Fourth Amendment to the United States Constitution and was not reasonably related in scope to the traffic violation. Anderson maintained that any evidence discovered by the officers must be suppressed as “fruit of the poisonous tree.”
The State responded to Anderson’s motion to suppress, arguing that the officers had reasonable suspicion to detain Anderson after the initial traffic stop because they suspected Anderson possessed narcotics. Moreover, the State contended that based upon the totality of the circumstances, the officers had a particularized and objective basis to believe Anderson was in violation of his supervised release. The State maintained that the search of Anderson followed a lawful arrest and that some of the seized drug evidence had been abandoned by Anderson during the chase.
The trial court conducted an evidentiary hearing on Anderson’s motion to suppress. At the conclusion of the hearing, the trial court found that once the warrants checks came back negative, the traffic stop had concluded. Nevertheless, once Padrón discovered that Anderson was on parole, he had probable cause to believe that Anderson had violated his parole by being with Golston and Cobos. The trial court noted that although an arrest and detain order did not exist at the time of the traffic stop, it was not unreasonable for Padrón to detain Anderson until such an order existed.
Moreover, the trial court found that the duration of the stop was not unreasonable and that the officers proceeded in a diligent and expeditious manner. The trial court noted that once a search of the truck discovered no drugs, the officers tried to contact a parole officer to get an arrest and detain order. The trial court stated that although Sackhoff was not Anderson’s parole officer, he had the authority to issue an arrest and detain order based upon the information that was provided. The trial court determined that there was no problem in the law with an oral authorization to arrest and detain. The trial court denied Anderson’s motion to suppress.
The case proceeded to a bench trial on stipulated facts. Anderson preserved for appeal the trial court’s decision on his motion to suppress. The trial court found Anderson guilty of possession of MDMA with intent to sell and of failure to affix a tax stamp. Anderson was sentenced to a controlling term of 40 months in prison.
Standard of Review
On appeal, Anderson argues that the trial court erred in failing to suppress drug evidence that was seized during an unlawful search and seizure. When reviewing a motion to suppress evidence, the appellate court determines whether the factual underpinnings of the trial court’s decision are supported by applying a substantial competent evidence standard. However, the ultimate legal conclusion drawn from those facts is a legal question requiring the appellate court to apply a de novo standard of review. The appellate court does not reweigh the evidence. State v. Vandervort, 276 Kan. 164, 169, 72 P.3d 925 (2003). Moreover, we must remember that the State bears the burden of proof for a suppression motion. It must show to the trial court the lawfulness of the search and seizure. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003).
Search and Seizure
The Fourth Amendment to the United States Constitution prohibits all searches and seizures that are unreasonable, “ ‘ “and it is a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ [Citation omitted.]” ’ ” State v. Jaso, 231 Kan. 614, 620, 648 P.2d 1 (1982). “The general rule that warrantless searches and seizures are unreasonable has five exceptions: (1) consent; (2) hot pursuit; (3) incident to a lawful arrest; (4) stop and frisk; and (5) probable cause to search with exigent circumstances.” State v. Boyd, 275 Kan. at 273-74.
State’s Theories
The State advances two theories as to why the drug evidence was properly seized by a search incident to a lawful arrest; was abandoned property and not protected under the Fourth Amendment to the United States Constitution; or was subject to inevitable discovery by the officers. First, the State maintains that the officers had probable cause to detain Anderson for the suspected parole violation and that the subsequent arrest was properly based on the issuance of a written arrest and detain order under K.S.A. 2004 Supp. 75-5217(a). Alternatively, the State argues that irrespective of any determination of a parole violation, the trial court properly admitted the drug evidence because the officers had reasonable suspicion to stop and frisk Anderson and this suspicion ripened into probable cause to arrest Anderson for illegal drug activity. We will address the State’s alternative argument first.
Reasonable Suspicion of Drug Activity
It is undisputed in this case that Padrón initially stopped Anderson for traffic violations. A traffic stop constitutes a seizure under the Fourth Amendment to the United States Constitution. State v. DeMarco, 263 Kan. 727, 733, 952 P.2d 1276 (1998). Under the holding in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), an officer may stop any person in a public place when there are specific and articulable facts creating a reasonable suspicion that the person has committed or is about to commit a crime. State v. Slater, 267 Kan. 694, 696-97, 986 P.2d 1038 (1999). The Fourth Amendment search and seizure principles expressed in Terry have been codified in K.S.A. 22-2402(1). Slater, 267 Kan. at 697.
We recognize that an officer has the right to stop a car whose driver has committed a traffic violation and can briefly detain the occupants of the car for the purpose of enforcing the traffic laws of this state. State v. Schmitter, 23 Kan. App. 2d 547, 551, 933 P.2d 762 (1997). When conducting a routine traffic stop, a law enforcement officer may request the driver’s license and car registration, conduct a computer check, and issue a citation. If no information is found during the computer check, the person must be allowed to leave without further delay. To justify a further detention for questioning on matters unrelated to the initial stop, tire officer must have reasonable suspicion that the person has committed, is committing, or is about to commit some other crime. Schmitter, 23 Kan. App. 2d 547, Syl. ¶ 5.
Here, the traffic stop concluded once the warrants check came back negative and Padrón issued the citation. The question is whether the officers had gained a reasonable and articulable suspicion of criminal activity at this point that would justify the continued detention of Anderson. Anderson maintains that he should have been free to leave after he was handed the citation as the officers did not possess reasonable suspicion to further detain him. The State, however, argues that the officers possessed a reasonable and articulable suspicion that drug activity was afoot and, therefore, could have lawfully stopped him based upon those observations. We note that the trial court made no finding that the officers had reasonable suspicion of drug activity to further detain Anderson.
In United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989), the United States Supreme Court stated the following regarding reasonable suspicion:
“The officer, of course, must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ [Citation omitted.] The Fourth Amendment requires ‘some minimal level of objective justification’ for making the stop. [Citation omitted.] That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means ‘a fair probability that contraband or evidence of a crime will be found,’ [citation omitted] and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause.”
Moreover, quoting from Alabama v. White, 496 U.S. 325, 330, 110 L. Ed. 2d 301, 110 S. Ct. 2412 (1990), our Supreme Court in Slater, 267 Kan. at 697, set forth the following standard for determining whedier reasonable suspicion exists:
“ ‘Reasonable suspicion is a less demanding standard tiran probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less rehable than that required to show probable cause. . . . Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the “totality of the circumstances — the whole picture” [citation omitted] that must be taken into account when evaluating whether there is reasonable suspicion.’ ”
“What is reasonable is based on the totality of circumstances and is viewed in terms as understood by those versed in the field of law enforcement.” State v. Toney, 253 Kan. 651, 656, 862 P.2d 350 (1993).
In determining “ ‘the reasonableness of an investigative detention, we malee a dual inquiiy, asking first “whether the officer s action was justified at its inception,” and second “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” ’ [Citations omitted.]” State v. Mitchell, 265 Kan. 238, 241, 960 P.2d 200 (1998).
In the instant case, at the conclusion of the traffic stop, the officers had the following information: Anderson, along with documented gang member Cobos, had been at the Amoco station where there was suspected drug activity and there had been numerous arrests of individuals leaving the station; the Amoco station’s cashier was a documented Bloods gang member and had been convicted the previous year for possession of drugs; after leaving the Amoco station, Anderson went momentarily to the parking lot of an apartment complex where his truck was immediately surrounded by four Hispanic men; Anderson drove back to the Amoco station and then left the station with Golston who was a documented gang member; Anderson was driving a rental car; Anderson was wearing Bloods gang colors and was a documented gang member; Anderson was on parole; Elmore had observed Anderson speeding and driving left of the center line; during a previous stop, McFarren had learned that Anderson was carrying $4,000 on his person; and McFarren previously received information that nar cotics detectives were looking into Anderson’s activities relating to narcotics trafficking.
We believe that the combination of the above factors would cause an officer to be reasonably suspicious of drug activity in this case and would warrant further detaining Anderson. Importantly, an officer “does not have to know that the defendant committed a crime. Merely pointing to some facts that would cause a reasonable person to be suspicious is enough to conduct a Terry stop.” State v. Finley, 17 Kan. App. 2d 246, 251, 838 P.2d 904, rev. denied 251 Kan. 940 (1992). Although the officers had not observed any unlawful conduct by Anderson, they were able to point to several facts which would cause a reasonable person to suspect that possible drug activity was taking place. Therefore, the officers were justified in detaining Anderson after the conclusion of the traffic stop.
Nevertheless, our inquiry does not end there. As discussed above, we must also determine whether the detention “ ‘ “was reasonably related in scope to the circumstances which justified the interference in the first place.” ’ [Citations omitted.]” Mitchell, 265 Kan. at 241. Before Padrón even returned to Anderson’s truck to issue a citation, the officers decided to summon a drug dog to sniff around Anderson’s truck. Such action was appropriate as the officers had suspicions of drug activity, and it was reasonable to call out a drug dog that could sniff around the truck and either dispel or confirm the officers’ suspicions quickly. See United States v. Sharpe, 470 U.S. 675, 686-88, 84 L. Ed. 2d 605, 105 S. Ct. 1568 (1985) (stating that in assessing whether detention is too long to be justified as an investigative stop, the court may appropriately examine whether police diligently pursued means of investigation that likely would confirm or dispel suspicions).
Upon returning to the truck, after giving back Anderson’s and Golston’s identifications and giving Anderson a copy of the citation, Padrón asked Golston to step out of the car and patted him down. Padrón indicated that he asked Golston to step out of the car because he knew that the detective bringing the drug dog would not want any occupants in the car. Additionally, Padrón indicated that he did the pat-down search because he knew that gang members usually carry guns for protection. In State v. Waddell, 14 Kan. App. 2d 129, Syl. ¶ 1, 784 P.2d 381 (1989), this court recognized: “In order to justify a ‘stop and frisk’ search under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and K.S.A. 22-2402, a police officer must reasonably believe that his or her personal safety is at risk.” Because the traffic stop had escalated to a detention based on reasonable suspicion of drug activity and because Padrón knew that Golston was a gang member and might be carrying a gun, it was reasonable for Padrón to pat down Golston when he was asked to step out of the car.
After Padrón discovered a baggie sticking out of Golston’s shoe during the pat-down search, Golston admitted that it contained marijuana. Golston was then arrested, and the officers also found narcotics pills and over $1,300 in cash on his person. Thereafter, the drug dog arrived and alerted to Anderson’s truck. The officers then searched Anderson’s truck but found nothing of evidentiaiy value.
At this point, the officers’ reasonable suspicions that Anderson was involved in drug activity should have lessened. The officers had pursued a method of investigating the suspected drug activity that did not produce anything which would point to Anderson. The search of the truck did not produce any incriminating evidence. Although officers had discovered drugs and money on Golston, they found no incriminating evidence which would indicate that Anderson could be linked to these items. As noted in State v. Morris, 276 Kan. 11, 25, 72 P.3d 570 (2003), “[a] person’s mere propinquity to others independently suspected of criminal activity does not, without more, authorize a Terry stop unless the officer has reasonable suspicion directed specifically at that person.” When the officers failed to discover drugs in the truck, the officers had no reasonable basis for continuing their detention of Anderson, and they should have released him. The continued detention of Anderson after the officers failed to discover drugs in the truck became unreasonable. It is apparent that the officers’ continued detention of Anderson was based on a hunch. Nevertheless, as stated previously, reasonable suspicion cannot rest upon the hunch of an experienced officer, even if that hunch turns out to be right. See United States v. Sokolow, 490 U.S. at 7. As a result, we deter mine that at that point the officers’ continued detention of Anderson became an unlawful detention.
Probable Cause to Arrest Anderson
Nevertheless, assuming arguendo that the officers had reasonable suspicion to continue the detention of Anderson, this suspicion never ripened into probable cause giving officers the authority to arrest Anderson.
K.S.A. 2004 Supp. 22-2401(c)(l) authorizes a law enforcement officer to arrest an individual without a warrant if the officer has probable cause to believe that the individual is committing or has committed a felony. “ ‘Probable cause exists where “the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed. [Citation omitted.]’ ” State v. Abbott, 277 Kan. 161, 164, 83 P.3d 794 (2004) (quoting Draper v. United States, 358 U.S. 307, 313, 3 L. Ed. 2d 327, 79 S. Ct. 329 [1959]). “In determining whether probable cause to arrest exists, all the information in the officer’s possession, fair inferences therefrom, and facts may be taken into consideration that might not be admissible on the issue of guilt.” State v. Payne, 273 Kan. 466, Syl. ¶ 4, 44 P.3d 419 (2002).
The State argues that the following circumstances had the effect of ripening the officers’ level of suspicion to probable cause to believe that Anderson was involved in drug activity: the drugs and $1,300 discovered on Golston, the drug dog’s alert on the truck, Anderson’s attempt to abscond from the scene, and Anderson’s attempt to throw out the baggies of drugs. The State maintains that at a minimum, there was probable cause to believe that Anderson was aiding and abetting Golston.
We do not endorse the State’s attempt to bootstrap Anderson’s flight from the officers and his action of discarding the drugs into the factors giving the officers probable cause to believe that Anderson was involved in drug activity. As noted in 2 LaFave, Search and Seizure § 3.2(d) (4th ed. 2005), when a warrantless arrest is made, “the information to be considered is the ‘totality of facts’ available to the officer at the time of the arrest or search.” (Emphasis added.) Here, Anderson did not flee the scene and discard the drugs until after the officers had attempted to arrest him. Therefore, these factors are not relevant in determining whether the officers had probable cause to arrest Anderson.
Thus, the remaining factors that the State argues had the effect of ripening the officers’ suspicions to the level of probable cause are: (1) the drugs and $1,300 that were found on Golston; and (2) the drug dog’s alert on the truck. Nevertheless, when the search of Anderson’s truck did not produce anything, this should have dispelled the officers’ suspicions pertaining to the drug dog’s alert on the truck. Moreover, if tire officers possessed reasonable suspicion of Anderson being involved in drug activity, this suspicion should have been lessened after the search of Anderson’s truck produced nothing. It is also important to note that officers did not discover anything during the pat-down search of Anderson. It is inconceivable to determine that after the search of Anderson’s truck produced no drug evidence, the officers’ reasonable suspicion increased to tire level of probable cause.
Furthermore, the fact that Golston had drugs and money on his person does not show that Anderson was guilty of drug activity. Noting that the search or seizure of a person must be supported by probable cause particularized to that person and cannot be avoided by simply pointing out that there is probable cause to search or seize another person, the United States Supreme Court in Ybarra v. Illinois, 444 U.S. 85, 91, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979), stated:
“[A] person s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v. New York, 392 U.S. 40, 62-63, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968). Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be. The Fourth and Fourteenth Amendments protect the legitimate expectations of privacy of persons, not places. [Citations omitted.]”
Here, there was no incriminating evidence discovered during the detention that would indicate that Anderson had drugs on his person or which would link the evidence found on Golston to Anderson.
The United States Supreme Court’s decision in United States v. Di Re, 332 U.S. 581, 92 L. Ed. 210, 68 S. Ct. 222 (1948), provides further support for the conclusion that the drugs and money found on Golston, a passenger in Anderson’s truck, did not give the officers probable cause to arrest Anderson. In that case, an informant told an investigator with the Office of Price Administration that he was going to buy counterfeit gasoline ration coupons from one Buttitta at a designated place. The investigator and a detective followed Buttitta’s car to the designated place. The officers found the informant in the back seat holding the counterfeit ration coupons. The informant told the officers that he had bought the coupons from the driver, Buttitta. Di Re was a passenger in the car. The officers arrested all three occupants of the car. At the police station, when Di Re was asked to empty the contents of his pockets and later when he was searched, it was discovered that he had possession of counterfeit ration coupons.
The Di Re Court’s opinion turned on whether there was probable cause to arrest Di Re. The Government attempted to defend Di Re’s arrest on the theory that there were probable cause to believe he was guilty of conspiracy. Nevertheless, the Court found that the facts of the case did not warrant an inference of participation in conspiracy. The Court noted that there was no evidence establishing that Di Re was in the car when the informant obtained the coupons from Buttitta or that Di Re overheard or participated in any conversation on the matter. The Court further noted that the meeting occurred in a public street in a large city in broad daylight in plain sight of bypassers and that it did not necessarily involve a visibly criminal act. Moreover, the Court stated that “whatever suspicion might result from Di Re’s mere presence seems diminished, if not destroyed, when Reed, present as the informer, pointed out Buttitta, and Buttitta only, as a guilty party.” 332 U.S. at 594.
Like the facts of Di Re, here there was a singling out or incrimination of the other occupant of the car, Golston, to the exclusion of Anderson. At the time of Anderson’s arrest, the officers had no information that would implicate or point to Anderson. Moreover, after the search of the car revealed no incriminating evidence, the officers had nothing to link Anderson to the drugs that were found on Golston, that is, to show that Anderson and Golston were involved in a common enterprise of drug activity. Therefore, the officers lacked probable cause to arrest Anderson.
Parole Violation
We now come to the State’s argument that the officers had probable cause to detain Anderson for the suspected parole violation and that the subsequent arrest was properly based on the issuance of a written arrest and detain order under K.S.A. 2004 Supp. 75-5217(a).
In order to address the parties’ arguments on this issue, we must interpret K.S.A. 2004 Supp. 75-5217(a), which authorizes the arrest of an individual who has violated a condition of parole, conditional release, or postrelease supervision. “Interpretation of a statute is a question of law, and an appellate court’s review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute. [Citation omitted.]” State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). Moreover, in interpreting statutes, we note that “[t]he legislature is presumed to have expressed its intent through the language of the statutoiy scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed. [Citation omitted.]” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
K.S.A. 2004 Supp. 75-5217(a) states:
“At any time during release on parole, conditional release or postrelease supervision, the secretary of corrections may issue a warrant for the arrest of a released inmate for violation of any of the conditions of release, or a notice to appear to answer to a charge of violation. Such notice shall be served personally upon the released inmate. The warrant shall authorize any law enforcement officer to arrest and deliver the released inmate to a place as provided by subsection (g). Any parole officer may arrest such released inmate without a warrant, or may deputize any other officer with power of arrest to do so by giving such officer a written arrest and detain order setting forth that the released inmate, in the judgment of the parole officer, has violated the conditions of the inmate’s release.” (Emphasis added.)
Thus, under the plain language of K.S.A. 2004 Supp. 75-5217(a), a law enforcement officer is deputized with the authority to arrest an individual who has violated any of the conditions of release when that officer is given the written arrest and detain order.
In the instant case, the officers had not been given a written arrest and detain order at any time prior to arresting Anderson as required by K.S.A. 2004 Supp. 75-5217(a). Nevertheless, the trial court determined that the oral authorization given by Sackhoffwas sufficient and that the officers did not have to be in physical possession of a written arrest and detain order when arresting Anderson.
Anderson argues that a strict construction of K.S.A. 2004 Supp. 75-5217(a) does not allow for an oral order to arrest and detain but requires that the order be in writing and in effect before the arrest. On the other hand, the State contends that a reasonable reading of the “arrest and detain” portion of K.S.A. 2004 Supp. 75-5217(a) suggests that although a written order must be “given” to an officer in order to deputize him or her with the power to make the arrest, the officer is not required to actually possess the written order at the time of the arrest.
In order to support its argument on this issue, the State sets forth the following analogy:
“Just as the law ‘gives’ citizens the right to vote without them having the law in their physical possession, so too does a written arrest and detain order ‘give’ an officer in the field the authority to arrest an inmate for parole violations without the officer having the actual order in his physical possession at the time of arrest.”
Thus, the State’s argument is that if citizens can vote without them possessing the law, then by analogy an officer can arrest a parole violator without possessing the arrest and detain order. The State’s analogy can be illustrated in the following manner:
_Voter = Officer arresting a parole violator
Possession of law not required
Actual possession of arrest and detain order not needed
The strength of this analogy depends on the resemblances and the differences. The resemblances must be essential, and the differences unessential. Does a voter exercising the right to vote resemble an officer arresting a parole violator? No. Although the officer may be a voter, the officer in performing tire duties of arresting parole violators does not resemble a voter in any important way. Moreover, are there any important differences? Yes. Although voters do not have to carry the law with them to the voting polls, drey are generally required to register prior to voting. If their names are not listed among the properly registered voters, their ballots may be rejected. Moreover, when voters exercise their right to vote, they are engaging in a very important political function. On the other hand, when officers arrest suspects for a crime, the officers are required to have a valid reason or a warrant to justify the arrest. Victims of an improper arrest may have a damage action against the officers for false arrest. Moreover, police officers are engaged in the business of protecting society. There is a difference between removing someone from public office and placing someone in jail. In terms of results produced, there is a significant difference between voters and police officers. Because voting and arresting a parole violator are quite different, the State makes a strained analogy.
Interestingly, to support its view that a deputized officer need not be in possession of the arrest and detain order, the State points to tire definition of tire word “give.” Quoting from Webster’s New Collegiate Dictionary 486 (1976), the State defines “give” as follows: “to make a present of; ... to grant or bestow by formal action; . . . to put into the possession of another; . . . or to commit to another as a trust or responsibility.” This definition only serves to support the conclusion that the phrase “by giving such officer a written arrest and detain order,” as it is used in K.S.A. 2004 Supp. 75-5217(a), means to put the officer into possession of a written arrest and detain order. We conclude that the officer has the power to arrest a parole violator when that officer has been given the actual written arrest and detain order, not when the officer has been given the oral authorization to arrest the violator. This conclusion is in accord with the language found in State v. Hearst, 30 Kan. App. 2d 1052, 1055, 54 P.3d 518 (2002), that K.S.A. 2001 Supp. 75-5217(a) “requires serving the parolee at the time of arrest with written notice that states the parole violation charges.” We note that the relevant language under the current version of the statute, K.S.A. 2004 Supp. 75-5217(a), is identical to the language found in K.S.A. 2001 Supp. 75-5217(a).
We conclude that when the officers attempted to place Anderson into custody, they had no authority to arrest Anderson for the parole violation. As a result, the attempted arrest and later arrest of Anderson were unlawful.
Moreover, the trial court’s finding that the officers could detain Anderson past the conclusion of the traffic stop because they had probable cause of the suspected parole violation is erroneous. The detention of Anderson past the conclusion of the initial traffic stop could not be supported by the suspected parole violation as it is not a criminal offense. It is well established that an officer may stop any person in a public place when that officer has reasonable suspicion that such person is committing, has committed, or is about to commit a crime. See K.S.A. 22-2402(1); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); State v. Pritchett, 270 Kan. 125, 129, 11 P.3d 1125 (2000). Nevertheless, as Anderson points out, a parole violation is not a crime under Kansas law. See State v. Sullivan, 17 Kan. App. 2d 771, 773, 844 P.2d 741 (1993) (recognizing that violation of parole conditions is not classified as criminal offense under Kansas Criminal Code). Therefore, the officers could not use the parole violation to conduct a Terry stop and detention.
A similar decision was reached in United States v. Santillanes, 848 F.2d 1103 (10th Cir. 1988). There, a detective was with another officer in an airport when he noticed the defendant leave the lobby and boarding area of an airline and enter the main lobby of the airport. The detective recognized the defendant whom he had arrested a month earlier for an offense for which the defendant was under indictment. Although the detective was not aware of the particular terms of the defendant’s pretrial release, his impression was that individuals indicted for a felony could not leave the county. In order to determine if the defendant had violated the conditions of his pretrial release, the detective stopped and questioned him. During a later search, the officers discovered heroin on the defendant’s person, and the defendant was arrested.
On appeal, the 10th Circuit Court of Appeals determined that because a violation of conditions of pretrial release was not a crime, such a violation could not provide the basis for the stop of the defendant at the airport. The court stated that at the most, the detective should have reported seeing the defendant at the location in the airport. In concluding that the initial stop of the defendant was invalid, the court stated:
“[S]ince there was no crime involved in the possible departure of [defendant] from the jurisdiction the reason advanced by the Government and the detective for the initial stop was not valid, and tire initial pat-down and questions were in violation of [defendant’s] rights. There would seem to be no serious question but that [the officer] could have properly made the initial inquiry, “What are you doing here?’, had the [defendant’s] stop and participation been voluntary, but it was not.” 848 F.2d at 1107.
We find the Santillanes holding persuasive. Following the unsuccessful search of Anderson’s truck, the only remaining suspicion that the officers had was that Anderson was a parole violator. In focusing on this factor, the trial court stated: “[Tjhere’s probable cause to believe that he’s in violation of his parole. But it’s really a reasonable suspicion after the traffic stop.” Explaining that it was proper for the officers to continue their detention of Anderson, the trial judge declared:
“And I find as a matter of law, the fact that there was no order, detain and arrest— arrest and detain order — excuse me — arrest and detain order in existence at the time of the stop does not malee it unreasonable for Officer Padrón to have held Mr. Anderson until such an order existed.
“And I’ll overrule the motion to suppress based on that.”
If Anderson’s supposed status as a parole violator does not justify reasonable suspicion, the officers’ alleged reasonable suspicion topples like a house of cards. Similar to Santillanes, a violation of the conditions of parole does not constitute a crime in Kansas. Therefore, the officers’ continued detention of Anderson after his truck had been searched cannot be justified on the ground that the officers suspected Anderson’s contact with gang members was a vi olation of his parole. Moreover, associating with gang members is not a crime and cannot in and of itself provide reasonable suspicion or probable cause of criminal activity. The officers could have reported this information to Anderson s parole officer. Nevertheless, the arresting officers had no reasonable suspicion of any criminal activity, independent of the alleged parole violation, which was not a crime. Therefore, the officers had no reasonable basis to continue their detention of Anderson after the unsuccessful search of the truck.
Moreover, as Anderson points out in his brief, there was no evidence presented at the hearing to establish that Anderson had violated a special condition of his parole by associating with gang members. Padrón indicated that he had never been informed by a parole officer that Anderson was prohibited from associating or being in contact with gang members as a condition of his parole. Padrón further indicated that based upon his experience and training, parolees who were gang members should not be around other gang members. Nevertheless, the State never introduced any evidence establishing that as a special condition of his parole, Anderson was prohibited from associating with gang members. As stated earlier, the State has the burden of showing the lawfulness of the search and seizure. Without such information, we are unable to conclude that Anderson did in fact violate a special condition of his parole and that the later arrest and detain order was properly issued.
Finally, as discussed above, under K.S.A. 2004 Supp. 75-5217(a), officers have the authority to arrest a parole violator when they are given a written arrest and detain order. Nevertheless, the officers did not have the written arrest and detain order in their possession when they detained Anderson after the traffic stop. Moreover, the written arrest and detain order was not even in existence at the time the officers decided to arrest Anderson. From the above analysis, we may conclude that the officers had no authority to arrest Anderson for the parole violation.
Because the continued detention and arrest of Anderson was unlawful, we determine that the seized drug evidence should be suppressed 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); State v. Epperson, 237 Kan. 707, 718-19, 703 P.2d 761 (1985).
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