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  • 19 Jun 2018 2:21 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions: 

    Appeal No. 102,605: State of Kansas v. Justin Eugene Thurber 
     
    The Supreme Court upheld Thurber's capital murder and aggravated kidnapping convictions for the 2007 abduction and murder of a 19-year-old Cowley County Community College student. A jury convicted Thurber in 2009 and sentenced him to death.
     
    In affirming the convictions, the court postponed ruling on the jury's death sentence. The court explained that the district court must reconsider Thurber's claim that he is intellectually disabled using current legal standards. The court noted federal caselaw and state statute prohibit executing a person with an intellectual disability, and explained that the criteria for deciding intellectual disability claims in death penalty cases expanded since Thurber's trial. Adding to this "conundrum" about what law should apply, the court referred to a 2016 state statute revising the criteria and requiring that it apply retroactively.
     
    "We feel compelled to point out the problems we identify on the intellectual disability determination were not of the district court's making," wrote Justice Dan Biles for the court. "That court was operating under now outdated state statutes and federal caselaw."
     
    Biles said the court had no choice but to have the district court reconsider its intellectual disability ruling because new rules for conducting criminal prosecutions typically apply to cases pending on direct review, such as Thurber's. The court said it would retain jurisdiction over Thurber's death sentence appeal pending the outcome on remand.
     
    Today's 126-page opinion resolved Thurber's challenges to his convictions.
     
    Justice Eric Rosen dissented, arguing the changes in law applicable to Thurber's intellectual disability claim do not require a new district court ruling on the issue.
     
    Justice Lee A. Johnson also dissented. He argued there were several guilt-phase errors in addition to those found by the court's majority. He argued a new district court ruling on intellectual disability is unnecessary because the death penalty cannot be applied to Thurber under the Kansas Constitution Bill of Rights and due to the problems with the intellectual disability statutes. And he argued that, in making the new ruling, the district court should not be limited to determining whether Thurber was intellectually disabled at the time he first made the claim.

    Appeal No. 111,608: State of Kansas v. Vincent R. Jarmon
     
    A Sedgwick County jury convicted Jarmon of one count of burglary after he was found in a Wichita warehouse without permission to be there. Warehouse property was missing, and other warehouse property was found on his person. On appeal, the Court of Appeals affirmed the conviction but reversed on a peripheral question of the effectiveness of trial counsel. The Court of Appeals remanded the case to the Sedgwick County District Court for a hearing on possible conflicts of interest between Jarmon and his trial counsel The Supreme Court granted both Jarmon's and the State's petitions for review. Justice Eric Rosen, writing for a unanimous court, affirmed the Court of Appeals decision affirming the conviction but reversed the Court of Appeals order to remand. Jarmon argued that the trial court committed reversible error when it failed to include a definition of theft in the jury instructions for burglary. The court agreed that the omission was error, but it deemed the error harmless because the evidence was overwhelming and uncontested that Jarmon intended to permanently deprive the warehouse owners of their property. The court next relied on recent decisions to determine that the trial court conducted an adequate examination of the asserted conflict between Jarmon and his appointed counsel. Because Jarmon's motion for new trial based on ineffective assistance of counsel was filed out of time, it was properly considered a motion under K.S.A. 60-1507, but the Court of Appeals erroneously extended greater procedural protections than are ordinarily required for such motions. The remand was therefore reversed.

    Appeal No. 116,818: Sallie A. Scribner and Mark E. McNemee v. Board of Education of U.S.D. No. 492
     
    Before 2014 legislative amendments, Kansas elementary and secondary school teachers who had served a statutorily defined period of years were entitled to notice setting out the reasons for their termination or nonrenewal. These teachers also had a right to request a due process hearing. Legislative amendments in 2014 removed these protections for elementary and secondary school teachers. Scriber and McNemee's contracts were nonrenewed in May 2015 without the statutory protections both were entitled to before the 2014 amendments. The teachers challenged the 2014 amendments, arguing the amendments violated the teachers' constitutional right to due process and caused a breach of their contracts. The Supreme Court rejected the teachers' arguments, concluding the legislative process generally provides all the process that is due when the legislation results in the complete or partial deprivation of a protected property interests of more than a few individuals. The court also rejected the teachers' contract argument because it concluded the teachers could not assert rights under the pre-2014 statute.

    Appeal No. 118,758: In the Matter of Russell W. Davisson
     
    The Supreme Court ordered the disbarment of Wichita attorney Russell W. Davisson for three disciplinary complaints for lack of diligence in handling bankruptcy and probate proceedings. Davisson also failed to cooperate during the disciplinary investigation, did not appear at his hearing on the complaints, and did not appear before the court when it considered a disciplinary panel's recommendation for his disbarment. Davisson was admitted to practice law in Kansas in 1975. The court's disbarment order noted he was previously disciplined in 1987 and 1988 for neglecting legal matters entrusted to him, and was placed on two years' probation in 1998 for similar offenses.    

    Kansas Court of Appeals decisions released 


  • 08 Jun 2018 1:45 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today: 

    The first decision is from a case the Supreme Court heard during its April 9, 2018, special session at Colby High School.

    Appeal No. 112,573: State of Kansas v. Daniel Barlett
     
    The Supreme Court affirmed Barlett's conviction in Wyandotte County District Court of one count of criminal discharge of a firearm into a vehicle under a theory of aiding and abetting. Barlett earlier had pleaded guilty to voluntary manslaughter He sought a jury instruction of self-defense, which was denied under State v. Bell, 276 Kan. 785 (2003), and State v. Kirkpatrick, 286 Kan. 329 (2008), which held that a defendant charged with a forcible felony is barred from asserting self-defense. The Court of Appeals affirmed the conviction. Justice Eric Rosen, writing for a unanimous Supreme Court, held the Bell and Kirkpatrick rules were overly broad. The new rule is that a defendant may not assert self-defense if the defendant is already otherwise committing a forcible felony when he or she commits a separate act of violence, i.e., in purported self-defense. The court nevertheless found that, under the complex facts of the case, the instruction would have been factually inappropriate. Barlett also challenged the omission of a mere association instruction and an instruction defining intention. The court found no reversible error in these issues. Barlett finally asked the court to reverse his conviction because an equipment malfunction prevented the deliberating jurors from hearing part of a recording played during trial. The court held the district court adequately addressed the recording problem and Barlett suffered no prejudice from the equipment failure.

    Appeal No. 112,224: State of Kansas v. Gregory Mark George Jr.
     
    The Supreme Court reversed the decision of the lower courts to deny George's petition for DNA testing. George was convicted in Leavenworth County District Court of kidnapping, rape, aggravated robbery, and aggravated intimidation of a witness or victim. George petitioned to have several hairs that were found at the crime scene tested for DNA evidence. The Supreme Court holds that the hair may indeed produce exculpatory, noncumulative evidence and remands this case back to the district court to make that determination.

    Appeal No. 113,117: Jesse J. Atkins v. Webcon
     
    In a decision written by Justice Caleb Stegall, the Supreme Court affirmed the Workers Compensation Board's denial of benefits. A drunk driver's vehicle struck Atkins, who was working an out-of-town roofing job, while he was walking from a bar to his hotel room early one morning. The court unanimously held Atkins' injuries did not arise out of and in the course of his employment and the statutory going-and-coming exclusion did not apply because Atkins was neither on his way to assuming work duties nor leaving his work duties when he was injured.

    Appeal No. 113,746: State of Kansas v. Johnathan L. Riffe
     
    In a decision written by Justice Eric Rosen, the Supreme Court reversed the Court of Appeals and remanded the case to Reno County District Court for further proceedings. Riffe argued in district court that lifetime post-release supervision was unconstitutional as applied to him. The district court considered the three-factor test from State v. Freeman, 223 Kan. 362 (1978), before concluding lifetime post-release supervision was unconstitutional as applied to Riffe under section 9 of the Kansas Constitution Bill of Rights. The Court of Appeals disagreed and instructed the district court to impose lifetime post-release supervision. The Supreme Court held the district court erred by making insufficient factual findings on the first Freeman factor and refusing to consider the second and third Freeman factors. It remanded the case for consideration under the correct legal standard. Justice Lee Johnson concurred in part and dissented in part. He agreed with the majority's decision to remand for consideration of the second and third Freeman factors but disagreed with its determination the district court made insufficient findings on the first Freeman factor Justice Caleb Stegall concurred with the decision but wrote separately to observe the possibility the Freeman analysis has no basis in section 9 of the Kansas Constitution Bill of Rights.

    Appeal No. 115,160: State of Kansas v. Christopher Scott Futrell
     
    In a decision written by Justice Eric Rosen, the Supreme Court affirmed in part and reversed in part the decision of the Court of Appeals and remanded the case to Riley County District Court with directions. Futrell pleaded no contest to a residential burglary that took place February 20. The district court ordered him to pay restitution for damages caused by the burglary and for money stolen during that burglary. The court also ordered him to pay for damages he allegedly caused in a separate burglary and theft on January 31 and for damage to a cell phone in a separate case. The Court of Appeals affirmed the order except for the portion requiring Futrell to pay for damages in the January 31 crimes. The Supreme Court affirmed the decision in part but vacated the order that Futrell pay for the February 20 theft damages and remanded the case for a new restitution hearing. It instructed the district court to reconsider its calculation of restitution under the standard adopted in State v Arnett, __Kan.__, 413 P.3d 787 (Appeal No. 112, 572, filed March 23, 2018), that provides a defendant may only be ordered to pay restitution for damages that were proximately caused by the crime of conviction.

    Appeal No. 118,742: In the matter of Zane Todd Jr., respondent
     
    This disciplinary case arose out of a diversion terminated when Todd failed to complete one of 16 required hours of continuing legal education. Because Todd's serious illness and communications irregularities—for which the Disciplinary Administrator's office bore at least partial responsibility—mitigated his culpability for his lapses, the Supreme Court declined to impose a recommended public censure. It instead remanded the case to the disciplinary administrator for imposition of a less serious sanction: an informal admonition. 

    Kansas Court of Appeals decisions released today 

  • 04 Jun 2018 9:06 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today: 

    Appeal No. 116,172: State of Kansas v. Phillip Parks

    The Supreme Court affirmed the Reno County District Court's decision to deny Parks' pro se motion to set aside a "void judgment." Parks argued before the district court that the pro se motion should be construed as a motion to withdraw his plea. Accordingly, the district court properly denied the motion for failure to show excusable neglect as required by statute when the motion is filed past the deadline. On appeal, Parks now argues that his pro se motion should have been construed as one under K.S.A. 60-1507 attacking his conviction. The Supreme Court holds that under the facts of this case, the invited error doctrine applies where Parks repeatedly invited the district court to construe his pro se motion as a motion to withdraw plea.

    Appeal No. 116,550: State of Kansas v. Kasey L. Nesbitt

    The Supreme Court affirmed Nesbitt's convictions in Sedgwick County District Court for felony murder, rape, and aggravated burglary. Nesbitt broke into the 100-year-old victim's home and sexually assaulted her. The victim survived for 21 days after the attack. At Nesbitt's trial, expert witnesses described the injuries the victim had sustained and the consequences to her health and mobility, ultimately leading to the blood clots that killed her. On appeal Nesbitt argued that the length of time and the chain of negative health consequences between the rape and the victim's death meant that the rape could not supply the legal basis for his conviction for felony murder. A unanimous court rejected Nesbitt's arguments and affirmed the judgment of the district court. There was sufficient evidence for a reasonable jury to conclude that Nesbitt's attack on the victim caused her death, making him guilty of felony murder

    Appeal No. 116,146:  State of Kansas v. Dyron M. King

    In a decision written by Justice Caleb Stegall, the Supreme Court unanimously upheld King's various convictions for attempted capital murder, aggravated robbery, aggravated battery, conspiracy to commit aggravated robbery, and criminal possession of a firearm in Wyandotte County. A jury found King took part in a string of violent robberies in Kansas City, Kansas, and Kansas City, Missouri, which concluded with the attempted execution of a police officer. King was jointly tried with Cecil Meggerson. The Supreme Court held there was sufficient evidence for jurors to find King was one of the robbers and to convict him of conspiracy to commit aggravated robbery The court also held the prosecutor committed nonprejudicial error by prefacing certain comments in closing arguments with the phrase "we know" to describe facts that were controverted. Lastly, the court determined that King waived his ability to seek severance of his trial from Meggerson's.

    Kansas Court of Appeals decisions released today


  • 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 

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