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Supreme Court releases for August 10, 2018

10 Aug 2018 11:45 AM | Tiffany Fisher (Administrator)

The Kansas Supreme Court released the following published decisions today:

Appeal No. 112,492: State of Kansas v. Loarn Earl Fitzgerald II

Archived oral argument video

The Supreme Court affirmed a Court of Appeals decision reversing Fitzgerald's Cowley County District Court conviction for aggravated criminal sodomy. Fitzgerald had been charged based on a statute prohibiting a person from causing someone to engage in sodomy with a third party. At trial, the State presented evidence that Fitzgerald had caused a friend's daughter to engage in oral sodomy with him rather than a third party. Fitzgerald argued on appeal the State failed to present any evidence to establish the charged crime. The Supreme Court agreed. If the State charges a crime under one criminal statute but proves a crime under a different criminal statute, a defendant's conviction is reversible for insufficient evidence.

Appeal No. 112,523: State of Kansas v. Stacy A. Gensler

Archived oral argument video

The Supreme Court vacated Gensler's sentence for driving under the influence and remanded for resentencing. Gensler was convicted and sentenced in Sedgwick County District Court for DUI based in part on two previous DUIs under a Wichita municipal ordinance. The court held that those convictions could not be used to enhance the sentence for his current DUI. The statute defining "conviction" for purposes of counting previous DUI convictions requires that convictions from municipalities or other states prohibit the same or a narrower range of conduct as the Kansas DUI statute. The Wichita ordinance prohibited a broader range of conduct than the state statute and therefore could not be used for sentence enhancement.

Appeal No. 115,278: State of Kansas v. David Sheldon Mears

Archived oral argument video

The Supreme Court vacated Mears' sentence for driving under the influence and remanded for resentencing. Mears was convicted and sentenced in Sedgwick County District Court for DUI based in part on two previous DUIs, one of which was based on a Wichita municipal ordinance. The court held that the Wichita DUI could not be used to enhance the sentence for his current DUI The statute defining "conviction" for purposes of counting previous DUI convictions requires that convictions from municipalities or other states prohibit the same or a narrower range of conduct as the Kansas DUI statute. The Wichita ordinance prohibited a broader range of conduct than the state statute and therefore could not be used for sentence enhancement.

Appeal No. 115,196: State of Kansas v. Christopher J. Schrader

Archived oral argument video

The Kansas Supreme Court vacated Schrader's sentence for involuntary manslaughter while driving under the influence and remanded to Sedgwick District Court for resentencing. Schrader's criminal history score was based in part on categorizing a July 2012 conviction in Wichita Municipal Court as a person felony. The court held that a conviction under the Wichita DUI ordinance does not count as a prior DUI, scored in this case as a person felony, because it prohibits a broader range of conduct than state law.

Appeal No. 115,277: State of Kansas v. Nicholas W. Fisher

Summary calendar; no oral argument

The Supreme Court vacated Fisher's sentence for driving under the influence and remanded for resentencing. Fisher was convicted and sentenced in Sedgwick County District Court for DUI based in part on two previous DUIs, one of which was based on a Wichita municipal ordinance. The court held that the Wichita DUI could not be used to enhance the sentence for his current DUI. The statute defining "conviction" for purposes of counting previous DUI convictions requires that convictions from municipalities or other states prohibit the same or a narrower range of conduct as the Kansas DUI statute. The Wichita ordinance prohibited a broader range of conduct than the state statute and therefore could not be used for sentence enhancement.

Appeal No. 115,834: State of Kansas v. Jonell K. Lloyd

Archived oral argument video

A Sedgwick County jury convicted Lloyd of first-degree premeditated murder, felony murder, and abuse of an infant victim. In 2014, the Supreme Court affirmed the conviction but remanded the case for resentencing so that a jury, not the judge, would make specific factual findings relating to enhancing his sentence. The sentencing jury found two aggravating factors, and Lloyd was again sentenced to a minimum term of 50 years. He appealed from that sentence. Writing for a unanimous court, Justice Eric Rosen affirmed the new sentence. Responding to Lloyd's contention that one of the lead witnesses for the prosecution had been coerced into making statements against him and her testimony from the first trial should not have been read to the jury in the sentencing trial, the court determined that any error was harmless because that witness's testimony had already become known to the jury through the testimony of police investigators, and no objection was made to their testimony. The court also rejected Lloyd's claim that the State was required to prove that bodily harm was an element of any previous felony serving as an aggravating factor. Instead, it sufficed for the State to prove that great bodily harm resulted from the previous felony, whatever the elements of the crime might be.

Appeal No. 111,554: State of Kansas v. Archie Joseph Patrick Dooley

Archived oral argument video

The Supreme Court affirmed the McPherson County District Court ruling that Dooley violated the terms of his probation, but reversed the Court of Appeals decision affirming the district court's revocation of Dooley's probation and imposition of his original underlying prison sentence. The court ordered further proceedings concerning compliance with the legislature's 2013 amendments to the probation revocation statute, which established a graduated sanctioning scheme for probationers who violate the terms of their probation release. The Supreme Court directed the district court to either impose a statutorily prescribed intermediate probation violation sanction or to make the finding that it was bypassing the intermediate sanction provisions as authorized by statute.

Appeal No. 112,549: State of Kansas v. Willie Fleming

Archived oral argument video

Fleming challenged an aggravated robbery jury instruction because the instruction, which alleged he took property, was broader than the complaint, which specified a cellphone and wallet were the property taken. Fleming proposed language substantially similar to the language the Johnson County District Court used that he complained of on appeal. The State asserted invited error should preclude review of Fleming's alleged error. The Supreme Court rejected Fleming's arguments that K.S.A. 22-3414(3) allows review of all claims of error related to a jury instruction and that raising a constitutional issue precludes application of the invited error doctrine. Instead, courts should carefully review an appellant's actions in causing an alleged error and the context in which those actions occurred in deciding whether to apply the invited error doctrine. Here, the information about what items were alleged to support aggravated robbery was included in the charging document. The charging document also referenced other items in connection with other charges against Fleming. Fleming's counsel still proposed an instruction that referenced "property" rather than the specific property alleged in each count of the complaint. Under these circumstances, the court concluded the invited error doctrine precluded review of Fleming's asserted jury instruction error.

Kansas Court of Appeals decisions released today.

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