Public Defense

No weighing of aggravating factors in Jessica's Law sentencing

Posted on October 01, 2016
Christina M. Kerls won in State v. McCormick, No. 109,985 (Kan. Sept. 9, 2016), obtaining a new sentencing hearing in a Sumner County rape prosecution. The KSC affirmed Mr. McCormick's convictions, but remanded for resentencing because the district court improperly considered aggravating factors when determining whether to grant a departure in the case...

October 2016 KSC docket

Posted on August 27, 2016
Here are the criminal cases on the KSC docket for October 24-27, 2016. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...

September 2016 KSC docket

Posted on July 09, 2016
Here are the criminal cases on the KSC docket for September 12-16, 2016. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...

Invited error doctrine does not apply to illegal sentence

Posted on May 14, 2016
Catherine A. Zigtema and Sarah Morrison Rapelye won in State v. Hankins, No. 109,123 (Kan. April 22, 2016), obtaining a new sentencing hearing in a Johnson County felony prosecution. On appeal, Mr. Hankins claimed that an Oklahoma deferred judgment should not be counted as a prior conviction...

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May 2016 KSC docket

Posted on March 19, 2016
Here are the criminal cases on the KSC docket for May 2-5, 2016. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...

February-March 2016 KSC docket

Posted on January 17, 2016
Here are the criminal cases on the KSC docket for February 29-March 3, 2016. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...

Search incident to arrest nor inevitable discovery justified search of wallet left on car

Posted on January 09, 2016
Shannon Crane won in State v. Reed, No. 113,576 (Kan. App. Dec. 18, 2015), affirming Judge Rose's suppression order in a Reno County drug prosecution. Judge Rose found the following facts:Defendant was handcuffed and at the rear of his vehicle when his wallet was first searched...

Aiding and abetting instruction given during jury deliberations is clear error

Posted on January 09, 2016
Rick Kittel won in State v. Hover, No. 113,214 (Kan. App. Dec. 18, 2015)(unpublished), obtaining a new trial in a Reno County aggravated battery prosecution.  Ms. Hover argued that the district court's improperly giving an aiding-and-abetting instruction in response to a jury question...

Cannot detain while getting a search warrant without more

Posted on January 09, 2016
Kimberly Streit Vogelsberg won in State v. Daugherty, No. 110,131 (Kan. App. Dec. 18, 2015)(unpublished), obtaining a suppression order in a Butler County drug prosecution. Ms Daugherty argued that officers obtained statements from her during an illegal detention and that the tainted evidence invalidated a search warrant predicated on those statements, which in turn led to incriminating evidence...

Insufficient search warrant affidavit leads to suppression of residential search

Posted on January 02, 2016
Washburn student intern Michelle David and I won in State v. Savage, No. 112,882 (Kan. App. Dec. 11, 2015)(unpublished), obtaining a suppression order in a Douglas County drug prosecution. Police had obtained a search warrant to search Mr. Savage's home based on a report from a neighbor, a trash pull, and an old conviction for drug possession...

January 2016 KSC docket

Posted on December 12, 2015
Here are the criminal cases on the KSC docket for January 25-29, 2016.  These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...

No concern for welfare supporting welfare check

Posted on December 05, 2015
Rick Kittel won in State v. Canfield, No. 112,610 (Kan. App. Nov. 13, 2015)(unpublished), obtaining reversal of a Shawnee County drug conviction. Police had received a call from a caller who claimed he was the father of Ms. Canfield's children expressing concerns about the children...

Dispositional departure was a "no brainer"

Posted on November 28, 2015
Janine Cox won in State v. Snyder, No. 112,044 (Kan. App. Nov. 6, 2015)(unpublished), affirming Judge Fleming's downward dispositional departure sentence in a Labette County drug prosecution. Judge Fleming adopted several mitigating factors asserted in Mr...

Social guest generally not subject to search warrant of premises

Posted on November 21, 2015
Tracey T. Beverlin won in State v. Hunter, No. 112,963 (Kan. App. Oct. 30, 2015)(unpublished), summarily affirming Judge Meisenheimer's suppression order in a Pratt County drug prosecution. Officers had a search warrant for a residence and when they executed that warrant, officers met Ms...

Trooper's repeated failure to appear justified dismissal with prejudice

Posted on November 21, 2015
In State v. Stufflebean, No. 112,873 (Kan. App. Oct. 30, 2015)(unpublished), the COA affirmed a magistrate judge's dismissal of a traffic citation with prejudice after a Highway Patrol Trooper failed to appear for the bench trial. Recognizing that dismissal with prejudice is an extreme remedy, the COA still upheld the magistrate judge's action:Here, the record on appeal reflects that the magistrate judge dismissed the charge against Stufflebean with prejudice because the trooper who issued the traffic citation failed to attend the bench trial...

Drinking and walking is not necessarily a crime

Posted on November 14, 2015
Donald R. Snapp won in State v. Crane, No. 112,494 (Kan. App. Oct. 23, 2015)(unpublished), obtaining a suppression order in a McPherson County drug prosecution. Mr. Crane was arrested for crossing the street as a pedestrian under the influence. The COA held that Mr...

No good-faith exception for illegal cell phone searches

Posted on November 14, 2015
Timothy J. Grillot won in State v. Jones, No. 113,397 (Kan. App. Oct. 23, 2015)(unpublished), affirming Judge Fleming's suppression order in a Labette County prosecution. The state conceded that a cell-phone search was illegal pursuant to Riley v...

Insufficient evidence of theft by deception

Posted on November 08, 2015
Randall Hodgkinson won in Statev. Laborde, No. 107,872 (Kan. Nov. 6, 2015), reversing a Clay County conviction for theft by deception for insufficient evidence. The KSC held that ?[t]he State did not produce evidence proving one of the necessary elements of theft by deception?that Laborde obtained control over Price's property by means of a false statement or representation that deceived Price and on which he relied...

Accidentally showing prejudicial unredacted video requires a new trial

Posted on October 31, 2015
Derek W. Miller won in State v. Barnhart, No. 112,067 (Kan. App. Oct. 9, 2015)(unpublished), obtaining a new trial in a Ford County aggravated battery prosecution. On appeal, Mr. Barnhart argued that the publication of an unredacted video of a key witness required a new trial...

December 2015 KSC docket

Posted on October 31, 2015
Here are the criminal cases on the KSC docket for December 14-17, 2015.  These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...

Agreement supported dismissal of drug charges

Posted on October 24, 2015
Michael X. Llamas won in State v. Tyner, No. 112,045 (Kan. App. Oct. 2, 2015)(unpublished), affirming Judge Dickinson's dismissal of two Harvey County drug related cases. Ms. Tyner and her attorney testified that she had entered into an agreement with a prosecutor whereby she would not contest a probation violation proceeding in exchange to the state's agreement to not file some pending charges (the charges at issue in the instant case)...

Sufficient factors supported downward dispositional departure

Posted on October 17, 2015
Andy Vinduska won in State v. Lebeuf, No. 112,857 (Kan. App. Sept. 25, 2015)(unpublished), affirming Judge Bosch's downward dispositional departure sentence in a Clay County trafficking in contraband prosecution.  Judge Bosch found several mitigating factors:(1) Lebeuf's age; (2) that Lebeuf had no recent history of violence; (3) that drug treatment would better protect society than a prison disposition; and (4) reasons "pretty much as stated by [Lebeuf's] attorney to the court...

"Ease of access" not relevant when considering prescription drugs

Posted on October 03, 2015
I won in State v. Arb, No. 111,009 (Kan. App. Sept. 11, 2015)(unpublished), obtaining a new trial in a Lyon County distribution of oxycodone prosecution. The main issue on appeal involved problems with jury instructions and Ms. Arb's defense of entrapment...

Restitution is limited to crimes of conviction

Posted on September 19, 2015
Kimberly Streit Vogelsberg won in State v. Miller, No. 111,573 (Kan. App. August 28, 2015), vacating a restitution order in a Sedgwick County burglary and theft prosecution. Mr. Miller argued that the $4,700 restitution order for plumbing and electrical repairs to a home did not relate to the charges for which he was convicted...

Unpublished opinions available online!

Posted on September 13, 2015
Here is a news release from the Clerk of the Appellate Court announcing that, at least for future cases, the full text of unpublished appellate decisions will be available online.  This is a welcome change and will allow attorneys and other persons who may not have access to online opinions through a service like Westlaw to get access to unpublished opinions...

Must prove all elements [NOT FINAL]

Posted on March 21, 2011
Joanna Labastida won in State v. Witten, No. 103,476 (Kan. App. March 18, 2011), obtaining a reversal of a Pratt County conviction of sale within 1000 feet of a school. In order to sustain a conviction for sale within 1000 feet of a school, the state has to prove that the school was "a structure used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades one through 12...

Failure to inquire into jury verdict [NOT FINAL]

Posted on March 21, 2011
Carl Folsom won in State v. Gray, No. 101,481 (Kan. App. March 18, 2011), obtaining a new trial in a Reno County agg assault on a LEO prosecution. The district court failed to comply with Kansas statute, which requires that it confirm the jury's verdict in court (this is different than polling the jury, which was waived in this case)...

Improper impeachment with prior bad acts [NOT FINAL]

Posted on March 10, 2011
Heather Cessna won in State v. Cook, No. 102,375 (Kan. App. March 4, 2011), obtaining a new trial in a Montgomery County possession prosecution. At trial, Mr. Cook took the stand in his own defense and claimed that police officers planted drugs on him and then threatened to prosecute him unless he testified regarding a shooting that he knew nothing about...

Reversal for failure to give lesser [NOT FINAL]

Posted on March 10, 2011
Shawn Minihan won in State v. Simmons, No. 102,715 (Kan. App. March 4, 2011), obtaining a new trial in a Sedgwick County aggravated battery prosecution. The state charged Mr. Simmons with severity level 4 aggravated battery. At trial, the parties agreed that the district court should give a lesser-included offense instruction for simple battery, but the district court refused because the instructions had already been prepared...

Distinguishing Daniel [NOT FINAL]

Posted on March 05, 2011
Michelle Davis won in State v. Dennis, No. 101,052 (Kan. App. Feb. 4, 2011)(unpublished), obtaining reversal of several Butler County drug convictions. The main issue was whether evidence illegally obtained as the result of a vehicular search incident to arrest should be suppressed...

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