WELCOME TO THE TBA 

The key resource for attorneys practicing in Topeka and Shawnee County. 

JOIN 


Upcoming events

<< First  < Prev   1   2   3   4   5   Next >  Last >> 
  • 11 May 2018 10:56 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decision today: 

    Appeal No. 115,309: In re the Adoption of T.M.M.H. 

    The Supreme Court rejected the appeal of a grandmother with shared legal custody of her grandson in this case from Johnson County District Court. The grandmother argued she should be allowed to fully participate in court proceedings related to a stepparent adoption of her grandson. In a divided decision, three members of the court concluded the grandmother failed to prove she had standing to participate and a fourth member concluded the grandmother did not have a legal right to participate. A minority of the court would have granted her the right.
     

    Kansas Court of Appeals decisions released today


  • 27 Apr 2018 9:49 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decision today: 

    Appeal No. 115,604State of Kansas v. Marcus G. Butler

    In a decision written by Justice Caleb Stegall, the Supreme Court unanimously affirmed Butler's convictions of first-degree felony murder, conspiracy to commit aggravated robbery, and attempted aggravated robbery in Wyandotte County District Court.

    The Supreme Court held the Kansas conspiracy statute does not lay out alternative means for committing an overt act in furtherance of a conspiracy. It also held the district court properly instructed the jury that it had to find Butler committed the conspiracy knowingly rather than intentionally.
     
    The Supreme Court also held: Butler was not entitled to a new trial based on ineffective assistance of trial counsel; the district court committed harmless error by not providing the jury with a limiting instruction regarding Butler's prior drug purchases from a party involved in the case; the prosecutor under these circumstances did not err by referring to Butler's theory of the case as "ridiculous"; and cumulative error did not deprive Butler of a fair trial.
     
    Lastly, the Supreme Court concluded—and the State conceded—the district court erred when it imposed lifetime post-release supervision rather than parole. The Supreme Court affirmed Butler's convictions but vacated and remanded Butler's sentence so the district court can impose lifetime parole.

    Kansas Court of Appeals decisions released today 


  • 24 Apr 2018 12:44 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decision: 

    Appeal No. 114,143: State of Kansas v. David S. Hanke
    The Supreme Court affirmed the Harvey County District Court's decision to deny Hanke's motion to suppress. Hanke was found asleep in a running van in a gas station parking lot around 2 a.m. The officer who checked on Hanke's wellbeing observed that Hanke was disoriented, had trouble focusing, and was slow to answer questions. This behavior, combined with the circumstances under which Hanke was found, led the officer to ask Hanke if he could search the van. Hanke consented, and the officer's search revealed methamphetamine, marijuana, and drug paraphernalia. The Supreme Court finds that the search of Hanke's van was supported by reasonable suspicion and affirms the convictions for possession of methamphetamine, marijuana, and drug paraphernalia.  

    Kansas Court of Appeals decisions released today 
  • 06 Apr 2018 10:44 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today: 

    Appeal No. 108,625: State of Kansas v. Dana L. Chandler
    The Kansas Supreme Court reversed the premeditated first-degree murder convictions of Dana L. Chandler for the 2002 killings of her ex-husband and his fiancée. The court held the prosecutor in the case falsely told the jury Chandler had violated a nonexistent protection from abuse order in her divorce case. The unanimous court said Chandler's prosecutor used this false claim as a judicial endorsement for its theory that Chandler was dangerous.
     
    "Taken as a whole," wrote Justice Dan Biles on the court's behalf, "this prosecution unfortunately illustrates how a desire to win can eclipse the State's responsibility to safeguard the fundamental constitutional right to a fair trial owed to any defendant facing criminal prosecution in a Kansas courtroom."
     
    A Shawnee County District Court jury convicted Chandler in 2012 of killing Mike Sisco and Karen Harkness on July 7, 2002. They were found dead in Karen's Topeka home. Both were shot at least five times. They were in bed as the shooting began. Their murders launched a nine-year criminal investigation that culminated in Chandler's arrest in 2011. The case now returns to the district court.
     
    In its opinion, the court noted the State's case relied on limited circumstantial evidence consisting of Chandler's inconsistent statements concerning her whereabouts when the murders occurred, her gas purchases at that time, her obsessive behavior toward Sisco and Harkness, and two post-arrest jailhouse phone calls the State argued were incriminating. There was no physical evidence linking Chandler, who lived in Denver at the time of the killings, to the crime.
     
    During the trial, the prosecutor claimed there was a protection from abuse order issued by the Douglas County District Court in Chandler's divorce proceedings requiring Chandler to stay away from Sisco and that Chandler violated that order. The court observed, "All agree there is no protection from abuse order in the trial record." The opinion then laid out multiple efforts by the State to claim on appeal the order existed until it more recently acknowledged the prosecutor was wrong.
     
    "But that concession," Biles wrote, "while laudable, was a long time coming—even though we would expect the State never to shield something so obviously indefensible."
     
    Chandler's appeal was first argued to the court on January 27, 2016. After that, the court granted Chandler's unopposed motion for new counsel and additional briefing. New counsel was appointed and additional briefing permitted. "We took these unusual steps because the circumstances indicated they were necessary to serve the ends of justice," the court said.

    Appeal No. 114,890: Pamela Heimerman v. Zachary Rose and Payless Concrete Products
    The Supreme Court affirmed a Court of Appeals decision upholding the Allen County District Court's dismissal of Pamela Heimerman's wrongful death suit stemming from the death of her husband Daniel Heimerman in a car accident. Pamela had filed suit against Zachary Rose, who was driving the other vehicle in the accident, and Payless Concrete Products, Rose's employer.
     
    Because Daniel was killed while acting within the course and scope of his employment, Pamela received workers compensation death benefits. By operation of law, Daniel's employer received subrogation rights and a statutory lien on any recovery by Pamela that was duplicative of the death benefits. Pamela filed a wrongful death suit in Allen County and joined a wrongful death suit filed in federal court by Daniel's son, Lucas. Both suits were based on Kansas' wrongful death statute. Pamela and Lucas eventually settled their wrongful death claims, and the federal court approved the settlement and its apportionment between Pamela and Lucas.
     
    After the federal case concluded, Pamela moved the Allen County court to rule that her share of the federal settlement was attributable to her damages for loss of consortium and loss of spousal services. Such losses are statutorily exempt from an employer's subrogation rights and statutory lien.
     
    The Supreme Court held that Pamela could not seek categorization in state court of the damages recovered in the federal lawsuit because doing so would violate the one-action rule. Kansas law makes it clear that only one cause of action may be maintained based on the wrongful death of one person. For the claims stemming from the death of Daniel, that singular cause of action became the federal case once the federal court entered a judgment approving the parties' settlement agreement.

    Appeal No. 118,527: In the Matter of Linda S. Trigg, Respondent 
    Trigg, former district magistrate judge in the 10th Judicial District, was found in violation of Canons 1 and 2 of the Kansas Code of Judicial Conduct governing compliance with the law; promoting confidence in the judiciary; impartiality and fairness; competence, diligence, and fairness; decorum, demeanor, and communication with jurors; and cooperation with disciplinary authorities.

    Appeal No. 112,638: State of Kansas v. Henry Sullivan
    The Supreme Court affirmed the Court of Appeals decision affirming Sullivan's Wyandotte County convictions for multiple counts of rape and aggravated criminal sodomy and one count of aggravated robbery. The court held no reversible error when, during its deliberations, the jury had access to an admitted exhibit that was not published in open court. The court also held that the use of Sullivan's prior convictions to enhance his sentence did not violate Sullivan's right to a jury trial. 

    Kansas Court of Appeals decisions released today 


  • 26 Mar 2018 12:15 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions March 23: 

    Appeal No. 111,690: State of Kansas v. Jerone Brown
     
    The Supreme Court affirmed Brown's convictions for aggravated robbery and murder in Sedgwick District Court. Brown argued that several autopsy photographs were published to the jury without being properly admitted as evidence. The court held that because the photographs were identified and treated by the district court and both counsel as if they were admitted into evidence, they are regarded as admitted now. Accordingly, the rule requiring a timely and specific objection to the admission of evidence applies and, because Brown did not object, his issue is not preserved for appellate review.

    Appeal No. 112,572: State of Kansas v. Taylor Arnett
     
    In a unanimous decision written by Justice Eric Rosen, the Supreme Court reversed the Court of Appeals, affirmed the Wyandotte County District Court's order of restitution, and remanded the case to the Court of Appeals for consideration of the remaining issues. Arnett pled guilty to conspiracy to commit burglary, and the district court ordered her to pay restitution for damages that were allegedly caused by her co-defendants during related burglaries and thefts. The Supreme Court affirmed the order after holding that a criminal defendant can be ordered to pay restitution for any damages that are proximately caused by the defendant's crime. 

    Kansas Court of Appeals decisions released

  • 19 Mar 2018 10:47 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decision on March 16, 2018: 

    The following decision is from a case the Supreme Court heard during its October 3, 2017, special session at Emporia State University

    Appeal No. 114,705:  Rochelle Patterson v. Cowley County

    The Supreme Court rejected claims against Bolton Township and Cowley County. The claims alleged they should have installed traffic control devices on a rural road that abruptly ends at a riverbank, where two people drowned when their vehicle drove off the road and flipped end-over-end into the river. The court said the township did not owe any legal duty under state law to provide the devices and determined the county was immune from the lawsuit.

    Jason Patterson and Cortney Brewer drowned on November 19, 2010, when their vehicle drove off a rural roadway into the Arkansas River in the Kaw Wildlife Area in Cowley County. Their families sued the township, county, and the Kansas Department of Wildlife, Parks and Tourism, claiming a failure to provide adequate warnings, signs, and barriers on the road. The district court granted the defendants partial summary judgment before trial. The families appealed the rulings involving the township and county, and the county appealed the rulings involving itself.

    In a unanimous opinion written by Justice Dan Biles, the court held the township had no legal duty to place traffic control devices along the road where the accident occurred.

    "State law specifies the entities authorized to install traffic control devices, and the Township is not among them," Biles wrote.

    The court also ruled the county had no legal duty to conduct an engineering study as claimed by the families, and then held that the county's decisions regarding signage were discretionary according to the Manual on Uniform Traffic Control Devices, which is adopted by the Secretary of the Kansas Department of Transportation under state law to regulate road signs and warnings. The court then noted the Kansas Tort Claims Act shields governmental entities like the county from lawsuits over their discretionary decisions.

    Under the manual, the court said, the county was free not to consider whether signs should be erected along the roadway.

    "This is the hallmark of a discretionary function when the negligence alleged is not erecting a particular traffic control device," the court said.

    The roadway was opened by the county in 1873. In 1917, it was reclassified as a township road. In 1955, the county designated a portion, now known as 322nd Road, as a county road. It intersects with 111th Road about one mile west of the river and continues east for about three quarters of a mile. The remaining quarter mile to the river is a township road. The portion known as 322nd Road is paved, while the quarter-mile township road is not. The unpaved township road runs through the Kaw Wildlife Area, which is owned by the federal government and operated as a wildlife area by Kansas Department of Wildlife, Parks and Tourism. There was evidence the township road actually ends about 300 feet before the river.

    Kansas Court of Appeals decisions released
  • 09 Mar 2018 10:22 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today: 

    Appeal No. 112,361: State of Kansas v. Roy D. Wetrich
     
    The Supreme Court affirmed a Court of Appeals' decision that Johnson County District Court incorrectly sentenced Wetrich because it incorrectly classified a 1988 Missouri burglary conviction as a person felony and thereby miscalculated his criminal history score. For an out-of-state conviction to be comparable to a person offense under the Kansas criminal code, the elements of the out-of-state crime must be identical to or narrower than the elements of the Kansas crime to which it is being compared. Under this test, Wetrich's Missouri burglary conviction should have been classified as a nonperson felony.

    Appeal No. 112,544: State of Kansas v. Randy D. Sturgis
     
    The Supreme Court affirmed Sturgis' convictions in Sedgwick County for criminal possession of firearm and theft but reversed the sentence and remanded to district court for resentencing. The court ruled the district court incorrectly classified a previous Michigan home invasion conviction as a person felony and thereby miscalculated Sturgis' criminal history score. For an out-of-state conviction to be comparable to a person offense under the Kansas criminal code, the elements of the out-of-state crime must be identical to or narrower than the elements of the Kansas crime to which it is being compared. Under this test, Sturgis' Michigan home invasion conviction should have been classified as a nonperson felony.

    Appeal No. 113,545: State of Kansas v. Charles H. Moore
     
    The Supreme Court reversed Court of Appeals and Sedgwick County District Court decisions regarding Moore's sentence and remanded for resentencing. The court ruled the district court incorrectly sentenced Moore because it incorrectly classified a previous Oregon first-degree burglary conviction as a person felony and thereby miscalculated his criminal history score. For an out-of-state conviction to be comparable to a person offense under the Kansas criminal code, the elements of the out-of-state crime must be identical to or narrower than the elements of the Kansas crime to which it is being compared. Under this test, Moore's Oregon first-degree burglary conviction should have been classified as a nonperson felony

    Appeal No. 113,881: State of Kansas v. Derrick Buell
     
    The Supreme Court reversed Court of Appeals and Shawnee County District Court decisions regarding Buell's sentence and remanded for resentencing. The court ruled the district court incorrectly sentenced Buell because it incorrectly classified two previous Florida burglary juvenile adjudications as person felonies and thereby miscalculated his criminal history score. For an out-of-state adjudication to be comparable to a person offense under the Kansas criminal code, the elements of the out-of-state crime must be identical to or narrower than the elements of the Kansas crime to which it is being compared. Under this test, Buell's Florida burglary adjudications should have been classified as nonperson felonies.

    Appeal No. 112,841: State of Kansas v. Pablo Alberto Gonzalez
     
    The Supreme Court affirmed Gonzalez' conviction in Pottawatomie County for unintentional second-degree murder in the death of Levi Bishop after a gun discharged while they were celebrating New Year's Eve. Gonzalez, whose blood alcohol level was .25 when interviewed by law enforcement, claimed he shot Bishop when a gun was fired accidentally while the two were engaged in horseplay. On appeal, Gonzalez argued the unintentional second-degree murder statute was unconstitutionally vague, the evidence against him was insufficient, and the trial court made mistakes in responding to a jury question and in failing to give a limiting instruction about certain evidence. In its unanimous decision, the court rejected each argument. As to the statute's constitutionality, the court noted a previous version of the law had been upheld and that more recent revisions did not change that analysis.

    Appeal No. 115,972: State of Kansas v. Cedric M. Warren
     
    The Supreme Court remanded the case for resentencing after it found Wyandotte County District Court made an improper de facto modification to the sentence. Warren's original hard-50 sentence for premeditated first-degree murder was held unconstitutional and vacated following a U.S. Supreme Court ruling. Upon resentencing, the district court corrected the length of time for Warren's premeditated first-degree murder sentence but also modified it to run consecutive — rather than concurrent — to his other convictions. The court ruled this was inconsistent with the intent of the Legislature in enacting the Kansas Sentencing Guidelines Act.

    Kansas Court of Appeals decisions released today 

  • 08 Mar 2018 9:54 AM | Tiffany Fisher (Administrator)

    The Topeka Bar Association will host an Expungement Day project in April 2018.  The Expungement Day project is a pro bono service project designed to offer individuals the opportunity to have certain qualifying criminal arrests, convictions and diversions expunged through a simplified process.  This may assist in removing barriers which prevented employment and housing opportunities.  Only adult arrests, convictions and diversions occurring in Shawnee County qualify for this project.  Federal and municipal court cases cannot be addressed at this project.

    The Expungement Day project is possible through the combined efforts of members of the Topeka Bar Association, Third Judicial District Court, office of Shawnee County District Attorney Mike Kagay, Third Judicial District Public Defender Office, Kansas Legal Services, Washburn Law School and Butler and Associates.

    The event to submit expungement petitions to the Court will be held on Friday, April 20, 2018 from 9:00 a.m. through 3:00 p.m. at the Agriculture Hall building located at the Expo Center.  Entry is at 17th and S.W. Exoduster Dr.  Individuals are encouraged to obtain and fill out the necessary forms prior to arriving.  The forms can be downloaded from the Shawnee County District Attorney’s web site at http://www.snco.us/da/expungements.asp.  Volunteers will be available to provide limited assistance in completing the expungement application forms.

    The cost for filing an expungement is $195 per case.  Poverty and hardship affidavits will be available for those individuals who qualify and cannot pay the required filing fee and surcharge. Please bring legal photo identification for the affidavit of undue hardship. Cash payment will not be accepted.  Payment may be made by personal check, money order or cashier’s check.

    After filing the necessary petition for expungement, every individual will be scheduled for an expungement hearing between 8:30 a.m. and 4:30 p.m. on June 25 or 26, 2018, for final determination on whether the petition should be granted.  Prior to the hearing date, a review will be conducted to determine if there are any outstanding costs owed in the case and if the individual qualifies for an expungement.         

    Individuals who filed an expungement petition that is not objected to by the Shawnee County District Attorney, will still need to attend the hearing and sign the necessary expungement order.  Any expungement petition that is objected to will then proceed to hearing at the scheduled time and date.

    The Topeka Bar Association will be holding informational meetings to explain the Expungement Day project on Thursday, March 29, 2018 from 7 p.m. through 8:45 p.m. and on Friday, April 13, 2018 from 3 p.m. through 5 p.m. in Room 101B at the Topeka Shawnee County Public Library located at 1515 SW 10th Ave.

  • 09 Nov 2017 12:34 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today: 

    Appeal No. 107,786: State of Kansas v. Djuan R. Richardson 

    In an opinion written by Justice Caleb Stegall, the Supreme Court affirmed the Sedgwick County District Court's denial of Richardson's motion to withdraw guilty plea to two violations of the Kansas Offender Registration Act. Relying on its recent decision in State v. Meredith, 306 Kan. 906, 399 P.3d 859 (2017), a majority of the court held the Legislature intended the Kansas Offender Registration Act to be nonpunitive and Richardson failed to demonstrate by the clearest proof that Kansas Offender Registration Act registration has a punitive effect on drug offenders. Justices Beier, Rosen, and Johnson dissented.

    Appeal No. 108,233: Edmond L. Hayes v. State of Kansas

    In an opinion written by Justice Caleb Stegall, the Supreme Court affirmed the Sedgwick County District Court's summary denial of Hayes' untimely K.S.A. 60-1507 motion. The court held Hayes did not assert a proper ex post facto challenge to the 2006 amendments to the Kansas Offender Registration Act because those amendments were in effect at the time Hayes violated the Kansas Offender Registration Act. Justice Johnson concurred in the result.

    Appeal No. 117,361: In the Matter of Lawrence E. Schneider

    Schneider, of Topeka, was publicly censured for violations of the Kansas Rules of Professional Conduct governing communication and diligence.

    Kansas Court of Appeals decisions released today 


  • 09 Nov 2017 12:33 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today: 

    The first case was argued in a March 30, 2017, special session at Southwestern College in Winfield.

    Appeal No. 112,035: State of Kansas v. Marcus Gray
    In a unanimous decision written by Justice Marla Luckert, the Supreme Court ruled that a defendant may move to suppress evidence found during a traffic stop on a theory that law enforcement officers violated Kansas's law against bias-based policing.

    The court explained that Kansas law permits a defendant aggrieved by an "unlawful" search and seizure to move for suppression of any evidence found — and "unlawful" can refer to both a violation of the Constitution or a violation of state law. Thus, if police officers violated a Kansas state law regarding bias-based policing, such as by using race or other bias to determine whether there was probable cause for a stop or search, a defendant could pursue a suppression remedy to address that violation.

    In Gray's case, the Harvey County District Court credited the arresting officer's testimony that Gray was not stopped "because of his race," since there had been a traffic infraction justifying the stop. The Supreme Court stated it had no reason to doubt this credibility determination, but that it was not the right inquiry. The question was not whether Gray was stopped "because of" his race (i.e., whether race was the cause for the stop), but whether the police officer unreasonably used race in deciding to initiate an enforcement action. The Supreme Court vacated Gray's convictions and remanded to the district court for another hearing on the motion to suppress.

    Appeal No. 110,048: State of Kansas v. Aaron M. Sayler 
     
    The Supreme Court affirmed Sayler's conviction in Kingman County District Court for failing to register as an offender under the Kansas Offender Registration Act. Sayler claimed the district court did not have jurisdiction to decide his case because the criminal complaint failed to allege that he resided in Kingman County. He also argued the jury was required to find he resided in Kingman County.
     
    In a unanimous decision written by Justice Dan Biles, the court rejected both arguments. The court held the district court had jurisdiction over Sayler's case because that authority comes from the state Constitution but not from a charging document. As to the second claim, the court held Sayler could not show clear error. Sayler failed to show the jury verdict would have been different if the instruction were written as Sayler claimed it needed to be.

    Appeal Nos. 107,114 and 107,115: State of Kansas v. Willie J. Scuderi

    The Supreme Court affirmed Scuderi's convictions of two counts of failing to register in Reno County as a drug offender, as required by the Kansas Offender Registration Act. Scuderi claimed his convictions were ex post facto punishment for his 2002 conviction of possession of methamphetamine with intent to sell since the registration requirement did not exist at the time of original conviction on the underlying drug offense. He also claimed his sentence was improperly calculated using his criminal history score and that one of his offender registration convictions was based on a complaint that failed to allege he resided in Reno County.

    The court rejected each of these claims based on existing caselaw. Justices Carol Beier, Eric Rosen, and Lee Johnson dissented on the ex post facto issue. They agreed with Scuderi on that point.

    Appeal No. 113,104: Sharron Jenkins v. Chicago Pacific Corporation, et al
     
    The Supreme Court affirmed a decision by the Jackson County District Court quieting title to the land underlying a now-abandoned railway that once ran through the town of Holton. The dispute centered on whether an 1886 deed to the railroad company conveyed the property for use as a right of way. The court held that it did.

    In a unanimous decision written by Justice Dan Biles, the court held the language in the 1886 deed and longstanding Kansas caselaw demonstrated the railroad acquired only an easement in the property originally and the land reverted to the landowners when the railroad quit operating the railroad.

    Jenkins claimed ownership to the strip of land through a series of quitclaim deeds that originated with the railroad. But the court agreed with the district court, which found that when the railroad quitclaimed its interest to the company from which Jenkins acquired her interest, "the railroad deeded land it was not legally capable of deeding." 

    Kansas Court of Appeals decisions released today 


<< First  < Prev   1   2   3   4   5   Next >  Last >> 


Powered by Wild Apricot Membership Software