Lawton R. Nuss

In this Kansas criminal case, Rolland Berreth was convicted in 1994 of aggravated kidnapping and three counts of aggravated criminal sodomy; a decade later he filed pro se and counseled motions under K.S.A. 22-3504 and K.S.A. 60-1507 arguing that the kidnapping conviction was multiplicitous with the sodomy convictions. The district court agreed, reduced the kidnapping conviction to simple kidnapping, and lowered the sentence. The State appealed, expressly characterizing the appeal as one on a question reserved under K.S.A. 22-3602(b)(3); the Court of Appeals reversed and reinstated the original sentence, a ruling later affirmed by a second panel. On review, the Kansas Supreme Court held that the appeal must be treated strictly as a question reserved, which does not permit reinstatement of the original convictions or sentence, and therefore reversed the Court of Appeals and ordered the reduced sentence reinstated.

criminal lawprocedure

The case involved Downtown Bar and Grill, a Kansas Class B club licensed in 2009, which sought declaratory and injunctive relief against enforcement of the Kansas Indoor Clean Air Act's exemption from the statewide indoor smoking ban. The exemption applied only to Class B clubs licensed as of January 1, 2009, that notified the state health department, leaving later-licensed clubs like Downtown Bar subject to the ban. The trial court issued a temporary injunction on equal protection grounds, finding the cutoff date arbitrary. The Kansas Supreme Court reversed, ruling that Downtown Bar could not show a substantial likelihood of success on the merits because the legislature could rationally have retained the 2009 cutoff date to avoid incentivizing clubs to seek exempt status during consideration of the bill.

business & regulatorycivil rights

The case concerned a Kansas trial court's termination of a father's parental rights to his two minor children after he was unable to attend the hearing in person from Georgia, where he was on lifetime parole following imprisonment. The father requested to testify by telephone or for a continuance, but the trial court denied these requests, finding he had received proper notice, failed to appear despite knowing of the proceeding, and did not establish good cause or compelling circumstances under K.S.A. 2010 Supp. 60-243(a) for remote testimony due to issues with administering an oath, viewing exhibits, cross-examination, and assessing credibility. The Court of Appeals majority reversed, holding that the denial violated procedural due process, but the Kansas Supreme Court reversed that decision and affirmed the trial court, concluding the father received adequate notice and opportunity to be heard and did not meet the statutory standards for telephone testimony. The court determined that the trial judge's findings regarding the lack of good cause and the father's choice not to appear supported the denial, rendering any procedural shortcomings harmless.

family lawprocedurecivil rights

This case concerns a county board's amendment to its zoning regulations that allowed small wind energy systems but banned commercial wind farms in Wabaunsee County, Kansas. Landowners who had contracted for wind farm development and holders of wind rights sued the board, alleging violations of the Takings Clause and the Commerce Clause of the U.S. Constitution, along with related claims under 42 U.S.C. § 1983 and for inverse condemnation. The court affirmed the district court's rulings that there was no taking of property and no discrimination against interstate commerce. It reversed and remanded the claim that the zoning amendments imposed incidental burdens on interstate commerce that outweighed their benefits, directing the lower court to apply the Pike balancing test and permit further discovery. Related burden-based claims under § 1983 were also remanded.

business & regulatoryenvironmentproperty

In State v. Tahah, the defendant, a former police officer, was convicted by a jury of felony murder and the underlying felony of discharging a firearm at an occupied dwelling resulting in great bodily harm after the shooting death of his ex-girlfriend. The Kansas Supreme Court reviewed the direct appeal and addressed multiple issues, including whether the trial court erred by refusing to instruct the jury on lesser-included offenses of second-degree unintentional murder and involuntary manslaughter. The court held that such instructions should have been given because the evidence, viewed in the light most favorable to the defense, could support a finding of reckless rather than intentional conduct. It reversed the convictions and remanded for a new trial on that basis while rejecting or declining to reach the defendant's other claims regarding evidence exclusion, prosecutorial misconduct, and evidentiary admissions.

criminal law

This case concerns Eric Neal's motion under K.S.A. 22-3504 to correct an allegedly illegal sentence, claiming that his criminal history score was improperly calculated by aggregating three prior uncounseled municipal misdemeanors into a single person felony. The district court summarily denied the motion without an evidentiary hearing, and the Court of Appeals affirmed on both procedural and merits grounds. The Kansas Supreme Court reversed, holding that the district court erred by denying the motion without a hearing because the existing record does not conclusively establish whether Neal was advised of and knowingly waived his right to counsel in the 1987 and 1988 convictions. The court reasoned that the journal entries and disposition sheets are ambiguous on the waiver issue and that an evidentiary hearing is required to resolve the factual disputes before determining if the convictions could validly enhance Neal's sentence.

criminal lawprocedure

In State v. Simmons, a jury convicted the defendant of two counts of rape and one count of misdemeanor theft based on allegations that he abducted and sexually assaulted a woman at gunpoint after a house party, though Simmons claimed the acts were consensual. The defendant appealed on multiple claims of prosecutorial misconduct during trial, which the Court of Appeals had rejected. The Kansas Supreme Court granted review solely on those claims and applied a two-step analysis to evaluate whether the prosecutor's actions exceeded the wide latitude permitted in discussing evidence and whether they prejudiced the jury against the defendant. Finding that the misconduct denied Simmons a fair trial, the court reversed the convictions and remanded the case for a new trial.

criminal lawprocedure

This case involves Melvin Holmes' motion for postconviction relief under K.S.A. 60-1507, claiming ineffective assistance of appellate counsel in his direct appeal after convictions for first-degree murder and criminal possession of a firearm. The district court denied the motion without an evidentiary hearing, and the Court of Appeals affirmed. The Kansas Supreme Court reversed, holding that an evidentiary hearing was required on the claim that appellate counsel failed to include a videotape and transcript in the appellate record, because the existing record did not establish whether this omission was strategic and prior rulings had relied on an incomplete record. The court remanded for further proceedings limited to that issue, while finding other claims either unpreserved or without merit.

criminal lawprocedure

In State v. Bricker, the defendant pled no contest to aggravated battery, DUI, and failure to present proof of insurance after a car accident, pursuant to a plea agreement recommending Labette Bootcamp Probation. The district court imposed a prison sentence instead, and Bricker later moved to withdraw his plea, arguing ineffective assistance of counsel for failing to verify his eligibility for the boot camp program due to his antidepressant medications. The district court denied the motion, the Court of Appeals affirmed, and the Kansas Supreme Court also affirmed. The court reasoned that even assuming deficient performance by counsel, Bricker failed to show prejudice under the Strickland standard because there was no reasonable probability he would have insisted on going to trial rather than pursuing alternative probation or treatment options consistent with the plea agreement's spirit. The court further noted that the plea agreement's recommendations were not binding and that Bricker's post-sentencing motion required proof of manifest injustice, which was not established.

criminal lawprocedure

In State v. Freeman, Derrick Freeman moved to withdraw his nolo contendere pleas to charges including attempted aggravated robbery and burglary after learning that his criminal history score was higher than the parties had believed during negotiations, which increased his presumptive sentence from 71 to 136 months. The district court denied the motion without analysis, the Court of Appeals affirmed, and Freeman sought review. The Kansas Supreme Court reversed the denial, vacated the sentence, and remanded the case. It held that the district court failed to apply the correct legal standards from State v. Schow for determining good cause to withdraw a plea when there has been a mutual mistake about criminal history. The court explained that the mistake could implicate factors such as whether the defendant was misled or the plea was fairly and understandingly made, requiring the lower court to consider those circumstances before ruling.

criminal lawprocedure

In State v. Walker, police detained pedestrian Maurice Walker shortly after a reported truck burglary because he matched the victim's description of the suspect; an officer ran a records check on Walker's ID, discovered an outstanding warrant, arrested him, and found cocaine and marijuana in a search incident to arrest. Walker moved to suppress the drug evidence, arguing the initial detention lacked reasonable suspicion due to an inadequate description and that the records check exceeded the stop's scope. The district court denied the motion, a jury convicted Walker of the possession charges, and the Court of Appeals affirmed. The Kansas Supreme Court held that the officer had reasonable suspicion under the totality of circumstances from the recent crime and matching description, and that the records check was permissible within the detention's boundaries per Fourth Amendment case law such as Morlock, and therefore affirmed the denial of suppression and the convictions.

criminal lawprocedure

The case involved James Malmstrom, who pleaded guilty to two counts of attempted aggravated indecent liberties with a child involving victims under age 14. The district court departed from the off-grid life sentence with a 25-year minimum under Jessica's Law to a severity level 1 guidelines sentence but refused to further depart on one count to adjust Malmstrom's criminal history score from D to I, resulting in concurrent terms of 240 and 155 months. Malmstrom appealed, arguing the court should have started from the guidelines grid rather than treating the offense as off-grid. The Kansas Supreme Court held that the attempt statute ranks the offense as a nondrug severity level 1 felony, so no initial departure from Jessica's Law was needed, and it vacated the sentence and remanded for resentencing under the guidelines with authority to depart from the gridbox if substantial and compelling reasons exist.

criminal law

In State v. Jolly, the defendant pleaded guilty to one count of rape of a child under 14, an off-grid felony under Kansas law that carries a life sentence with a 25-year mandatory minimum under Jessica's Law. The district court granted a departure from that sentence and imposed 300 months' imprisonment plus lifetime postrelease supervision and electronic monitoring. The Kansas Supreme Court held that the district court did not follow the required statutory two-step departure procedure from Jessica's Law into the sentencing guidelines and then potentially upward from the presumptive guidelines range, making the sentence illegal. The court further held that the sentencing judge lacked authority to impose lifetime electronic monitoring, as that condition is reserved for the parole board under the relevant statute. The Supreme Court therefore vacated the sentence and remanded for resentencing.

criminal lawprocedure

The case involved a first-time homebuyer who purchased a house later found to have structural flaws, foundation issues, and water problems; he sued the seller, her real estate agent, and the agent's company alleging violations of the Kansas Consumer Protection Act, fraud, fraud by silence, negligent misrepresentation, and breach of contract. The district court granted summary judgment to all defendants, but the Court of Appeals reversed, and the Kansas Supreme Court affirmed that reversal while remanding for further proceedings. The Court held that summary judgment was improper under precedents like McLellan v. Raines because the buyer's acknowledgment form did not bar the claims, and it directed factual findings on issues including whether "as is" clauses applied, whether the two-year statute of limitations barred fraud and misrepresentation claims, whether the seller qualified as a "supplier" under the KCPA, and related contract and amendment questions. Several other points, such as challenges to the real estate company's existence and party status, were deemed abandoned. The decision returned the matter to the district court without resolving the underlying merits.

propertybusiness & regulatorytorts & liabilityprocedure

Ruby Thomas was convicted of cocaine possession after a police officer stopped her on the street, first conducted a voluntary encounter, and then continued questioning her without informing her she could leave, leading her to admit possessing crack pipes. The Kansas Supreme Court reversed her conviction and remanded for a new trial, holding that the district court should have granted her motion to suppress the evidence obtained during the second stage of the interaction. The court reasoned that this second stage amounted to an investigatory detention unsupported by reasonable suspicion and thus violated the Fourth Amendment, while rejecting her statutory speedy trial claim because the State was properly charged with only 179 days of delay and finding her Sixth Amendment confrontation claim unpreserved due to lack of a specific objection at trial.

criminal lawprocedurecivil rights

The case involved Billy J. McCaslin's direct appeal from his jury convictions for first-degree premeditated murder, rape, and aggravated arson, as well as his consecutive sentences including a hard 50 term for the murder. The Kansas Supreme Court affirmed the convictions and sentences after reviewing multiple issues raised on appeal. The court held that hearsay and confrontation claims were not preserved, that sufficient evidence supported the convictions and the hard 50 sentence, that the prosecutor did not commit reversible misconduct, that certain photographs and video evidence were properly admitted, and that the hard 50 sentencing scheme and enhanced sentences based on prior convictions were constitutional.

criminal lawprocedure

In State v. Williams, the defendant appealed her Kansas sentences for identity theft, arguing that her five prior Washington identity theft convictions from 2001-2002 should have been scored as nonperson felonies rather than person felonies when calculating her criminal history score. The district court and Court of Appeals had scored them as person felonies, resulting in a higher criminal history category and longer sentences. The Kansas Supreme Court affirmed, holding that under K.S.A. 21-4711(e), out-of-state convictions are classified as person or nonperson by reference to the comparable Kansas offense in effect at the time the out-of-state crimes were committed. At that time, Kansas law classified identity theft as a level 7 person felony, and the court rejected arguments to use either the date of the current offenses or the sentencing date for comparison. The court also noted that statutory changes affecting the severity of identity theft occurred after 2002 and operated only prospectively.

criminal lawprocedure

The case involved Davenport Pastures' claim for damages after the Morris County Board of County Commissioners vacated two roads providing access to ranch property that Davenport leased. The Board initially rejected the claim without a hearing, and after court-ordered remand, conducted a damages hearing in which the county counselor advised the commissioners while also advocating against the claim by examining witnesses and presenting arguments. The Kansas Supreme Court held that this dual role violated Davenport's due process rights by creating an appearance of bias and unfairness in the adjudicative process. The court reversed the decisions below and remanded the matter to the Board for new damages proceedings conducted with appropriate procedural safeguards.

propertyprocedurecivil rights

Jose Soto was arrested by Bonner Springs police and detained for over two days at a Wyandotte County facility based on a Johnson County warrant for a similarly named individual, despite his protests of mistaken identity. He sued the county defendants for false arrest and imprisonment under the Kansas Tort Claims Act. The district court granted summary judgment to the defendants, which the Court of Appeals and Kansas Supreme Court affirmed. The Supreme Court held that the county was immune because the detention officers' decisions on how to investigate Soto's claims of mistaken identity constituted a discretionary function under the KTCA, as they involved the nature and quality of judgment the legislature intended to shield from judicial review.

torts & liabilitycriminal law

In State v. Leaper, Tyrone Leaper was convicted of second-degree murder after fatally shooting Christopher Lovitch during a fight outside an apartment complex, and he appealed on multiple grounds including the denial of a mistrial motion. The mistrial issue arose when a key defense witness was accused of taking an audio tape from the courtroom, a juror observed this, and the tape went missing, leading the trial court to question the witness without further jury investigation. The Kansas Supreme Court affirmed the conviction and 620-month sentence, holding that any error in handling the mistrial motion was harmless, that the jury transcript procedure issue was not preserved, that there was no cumulative error, and that the sentencing did not violate Apprendi because criminal history need not be proven to a jury. The court relied on the strength of the prosecution's evidence from multiple eyewitnesses and prior precedent rejecting the Apprendi claim in this context.

criminal lawprocedure