The Kansas Supreme Court released published decisions today in the following cases:
Appeal No. 114,351: State of Kansas v. Louis Cotton
Twenty-six years after he was convicted in Wyandotte County District Court of multiple crimes including first-degree murder, Cotton filed a motion on his own behalf alleging several trial errors. The Supreme Court held that the district court judge correctly denied the motion. Cotton argued that the motion was permitted despite the delay because he was challenging an illegal sentence. The Supreme Court disagreed, holding Cotton's arguments challenged his conviction, not the sentence, so a motion to correct an illegal sentence is the wrong vehicle for his claims. This was not Cotton's first appeal. The Supreme Court previously affirmed his convictions on direct appeal in 1990.
Appeal No. 114,397: State of Kansas v. Steven A. Clark
Almost 20 years after Clark was convicted of first-degree murder and attempted first-degree murder in Sedgwick County District Court, he filed a motion to correct illegal sentence arguing he was wrongly sentenced to a hard-25 life sentence, which requires that he serve 25 years in prison before becoming eligible for parole. The Supreme Court held that he was correctly sentenced and affirmed the district court judge's decision denying Clark's motion.
Appeal No. 116,544: In the Matter of Terri L. Fahrenholtz
Fahrenholtz, of Fargo, North Dakota, was disbarred from the practice of law in Kansas for multiple violations of the Kansas Rules of Professional Conduct governing competence, diligence, communication, safekeeping property, termination of representation, expediting litigation, and failure to file an answer in a disciplinary proceedings.
Appeal Nos. 112,509 and 112,510: State of Kansas v. Tracey Jerome Toliver
Toliver was detained in a police car during a warrant-based search of a residence. During the detention, he shouted profanities and derogatory statements at the police officer in the car and then spat on the officer's hand. After placing him under arrest, the officer drove Toliver to the county jail. While trying to help jail staff persuade him to get out of the car in a holding area, Toliver again spat on the officer. He later made threatening remarks about the officer. Toliver was convicted in Riley County District Court of two counts of criminal threat, one count of battery against a police officer, and one count of felony battery. He focused his appeal on the last count. The Court of Appeals reversed that conviction based on the statutory language defining various categories of battery, and the state sought review from the Supreme Court. Writing for a unanimous court, Judge Michael J. Malone, senior judge, assigned, affirmed the decision of the Court of Appeals. The Supreme Court held that the syntax of the statute in question, K.S.A. 2013 Supp. 21-5413(c)(3)(D), required the state to prove that the police officer was a correctional officer or a correctional employee when Toliver spat on him in the holding cell. The state did not attempt to present such proof, and the conviction of felony battery could not be sustained.
Appeal No. 111,987: Juan A. Apodaca v. Mark Willmore and Matthew Willmore, and Oak River Insurance Company
Plaintiff Juan Apodaca, a police officer for the Riley County Police Department, sued Matthew Willmore and Mark Willmore to recover for injuries Apodaca sustained in a car accident.
In the middle of an October night in 2009, Matthew Willmore rolled the pickup he was driving across the median of K-177 in Riley County. The pickup came to a stop on its wheels, blocking the southbound lanes of the highway. Officer Apodaca was on patrol and responded to the accident at a high rate of speed with his emergency lights and sirens activated. Apodaca did not realize he was at the accident scene and did not see the disabled pickup in the middle of the road when his police car struck the pickup while traveling at 104 mph. As a result of the collision, Apodaca and Officer Jonathan Dulaney, who was riding with Apodaca, suffered serious injuries.
Apodaca asserted a claim of negligence against Matthew Willmore and a claim of negligent entrustment against Mark Willmore, Matthew's father
In Shawnee County District Court, the Willmores were granted summary judgment. The district court judge concluded that the firefighter's rule — a rule that prohibits an injured firefighter from recovering when his or her injury was caused by the wrong that initially required his or her presence at the scene — should be extended to police officers. On appeal a Court of Appeals panel agreed and affirmed the district court.
The Supreme Court granted Apodaca's petition for review and affirmed the decision of the Court of Appeals and the judgment of the district court. The court held that the firefighter's rule should be extended to include law enforcements officers. On the facts of the case before it, none of three recognized exceptions to the application of the firefighter's rule applied, and the plaintiff was procedurally barred from pursing adoption of a fourth, a willful and wanton conduct exception.
Kansas Court of Appeals decisions released today
State of Kansas
Office of Judicial Administration
Kansas Judicial Center
301 SW 10th
Topeka, Kansas 66612-1507