Public Defense

Cruel and Unusual Punishment

Posted on October 05, 2009
Here is a blog post from Doug Berman at Sentencing Law and Policy reporting that the Iowa Supreme Court had questions under its state constitution about the legality of a 25 year sentence for statutory rape and remanded for findings as applied to that defendant...

Rape acquittal in Reno County

Posted on October 01, 2009
Here is a Hutchinson News article reporting that Sarah Sweet-McKinnon won an acquittal in State v. Bodine, ending a Reno County rape/agg sex battery prosecution.

Not guilty of felony theft

Posted on September 30, 2009
My old public defender colleague Tim Frieden (we started within a couple weeks of each other at the PD office), won an acquittal in State v. Corona, ending a felony theft prosecution.

Another Gant win [NOT FINAL]

Posted on September 29, 2009
Rick Kittel won in State v. Witmer, 100,646 (Kan. App. Sept. 25, 2009)(unpublished), reversing a Riley County drug conviction. The evidence stemmed from a search incident to arrest. The COA noted that, during the appeal, both Arizona v. Gant and State v...

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No waiver of jury trial [NOT FINAL]

Posted on September 29, 2009
Lydia Krebs won in State v. Bowers, No. 100,805 (Kan. App. Sept. 25, 2009), reversing a Miami County DUI conviction. The issue, apparently not contested by the state, was that the record did not include a personal waiver of the right to jury trial:The district court failed to advise Bowers of his right to a jury trial or to even raise the option...

"As nearly as practicable"

Posted on September 18, 2009
Stephen Atherton and Don Krueger won in consolidated cases in State v. Marx, No. 98,059 and 98,060 (Kan. Sept. 18, 2009) affirming Judge Larsons suppression order in this case. There were two issues: whether a stop was valid as a safety stop or, alternatively, whether the officer had reasonable suspicision of a traffic violation justifying the stop...

Downward duration departure upheld [NOT FINAL]

Posted on September 18, 2009
Janine Cox won in State v. Henderson, No. 100,885 (Kan. App. Sept. 18, 2009)(unpublished), affirming Judge Dowd's downward durational departure sentence in a Shawnee County rape prosecution. The state claimed that Judge Dowd failed to state on the record the substantial and compelling reasons for its departure...

October 2009 KSC docket

Posted on September 10, 2009
Here are the criminal cases on the KSC docket for October 26-30, 2009. 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...

Couple of Gant GVRs (sort of)

Posted on September 09, 2009
Similar to the practice in the SCOTUS, the KSC granted a couple of petitions for review last week on Gant issues and summarily remanded to the district court for proceedings consistent with Arizona v. Gant. In both cases, the COA had held that the amended K...

A Gant reversal [NOT FINAL]

Posted on September 08, 2009
Meryl Carver-Allmond won in State v. Wear, No. 100,442 (Kan. App. September 4, 2009), reversing a Harvey County drug conviction. The state had primarily argued that the search incident to arrest for driving with a suspended license was lawful under Belton, but as the COA explained that rationale doesn't survive Gant, blogged about here...

The answer is "Yes!"

Posted on September 04, 2009
The question in the title of my blog post on September 19, 2006 was "Will Layton finally get relief?" The answer according to State v. Layton, No. 98,275 (Kan. June 26, 2009)(unpublished) is yes. Michael Whalen was Mr. Layton's attorney in this latest proceeding...

Recent cert petition filed

Posted on September 04, 2009
We recently filed a cert petition in Snow v. Kansas on the issue of whether non-statutory "catch all" aggravating factors (used for an upward durational departure) satisfy the Due Process Clause.We filed a similar petition last year in Green v. Kansas, blogged about here...

Couple of acquittals

Posted on September 03, 2009
Here is a Hutch News article reporting that Kelly Driscoll and Lee Timan got an acquittal in State v. Davis, ending a Reno County rape prosecution.Here is an Emporia Gazette article reporting that Trevor Riddle got an acquittal in State v. Petitt, ending a Lyon County vehicular homicide prosecution...

September 2009 KSC docket

Posted on September 01, 2009
Here are the criminal cases on the KSC docket for September 14-18, 2009. 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 basis for stop or frisk [NOT FINAL]

Posted on August 31, 2009
Rick Kittel and KU Defender Project student Thomas Knutzen won in State v. Dean, No. 100,120 (Aug. 28, 2009), reversing a Sedgwick County drug conviction. The COA agreed with Mr. Dean that the officer did not have an objectively reasonable basis to detain:Applying an objective standard, the facts available to Officer Goodman at the moment of the seizure established: (1) Goodman had received a report of an unidentified individual selling crack from an unidentified vehicle in front of a residence where Dean and others lived; (2) no vehicles were parked in front of the residence when Goodman arrived to investigate; (3) Goodman was only generally familiar with the residence and its occupants, including the defendant; (4) during a consensual search of the home, Goodman observed no illegal activity; and (5) when Goodman saw Dean in the kitchen, he thought Dean appeared nervous...

Can't convict of a crime not charged [NOT FINAL]

Posted on August 31, 2009
Meryl Carver-Allmond won in State v. Betts, No. 100,887 (Aug. 28, 2009)(unpublished), reversing two counts of sale and two counts of unlawful use of a communication facility in a Seward County drug case. The state unambiguously charged two counts of possession with intent to sell...

Restorative justice

Posted on August 25, 2009
Here is a Salina Journal article reporting that criminal threat charges were dismissed after the defendant and victim met and resolved the matter, apparently to the satisfaction of the victims. I just thought this might be noteworthy because you don't see much press about these kinds of dispositions...

Improper impeachment with prior conviction not harmless

Posted on August 21, 2009
Rachel Pickering won in State v. Hoskins, No. 99,802 (Kan. App. Aug. 14, 2009), obtaining a new trial in a Montgomery County aggravated intimidation of a witness or victim prosecution. The main issue in the case was the admission of a prior forgery conviction for impeachment purposes...

Acquittal in Douglas County rape prosecution

Posted on August 20, 2009
Sarah Swain won an acquittal today in a Douglas County rape prosecution. The jury deliberated for over four hours and returned a not guilty verdict on a charge of rape and the lesser offense of attempted rape. Here is an article on the case from the LJWorld.

Alford plea stipulation to factual basis does not satisfy Apprendi requirements

Posted on August 14, 2009
Christina Waugh won in State v. Case, No. 98,077 (Kan. August 7, 2009), reversing a 60-month term of postrelease supervision that was based on the district court?s finding that the defendant?s conviction for aggravated endangering of a child was sexually motivated...

Juvenile jury trial pays off

Posted on August 13, 2009
Carl Maughan won an acquittal in the first Sedgwick County jury trial in a juvenile case since the KSC's decision in In re L.M. (holding that juveniles have state constitutional right to a jury trial). According to this Wichita Eagle article, it took the jury only 40 minutes to acquit the defendant of burglary and theft.

Fake victim can support downward departure sentence

Posted on July 31, 2009
Janine Cox won in State v. Valenzuela, No. 99,675 (June 26, 2009) (unpublished), affirming a downward durational departure sentence in a Shawnee County State's appeal. Mr. Valenzuela, who had learning disabilities and severe memory loss (due to a series of head traumas), was caught in an internet sting when he went to meet a woman who had been pretending to be a young girl in a chat room...

Juvenile adjudication cannot support lifetime offender registration [NOT FINAL]

Posted on July 31, 2009
I won recently in State v. Reese, No. 100,531 (Kan. App. July 31, 2009), reversing an order of lifetime offender registration and an enhanced sentence based on an alleged "persistent sex offender" status. The enhanced penalties had been based on a prior juvenile adjudication...

Age of defendant is still an element of Jessica?s Law offense

Posted on July 27, 2009
Rachel Pickering won in State v. Gonzales, No. 99,657 (Kan. July 24, 2009), reversing a life sentence in a Sedgwick County Jessica?s Law prosecution for aggravated indecent liberties with a child. The court affirmed the trial court?s denial of Mr. Gonzales? motion for new trial regarding Mr...

"Hasty generalization" warrants new trial [NOT FINAL]

Posted on July 24, 2009
Meryl Carver-Allmond earned her first published win in State v. Smith, No. 99,655 (Kan. App. July 24, 2009), reversing a Douglas County conviction for robbery. The COA held that the district court abused its discretion in denying trial counsel?s motion to withdraw because an irreconcilable conflict existed between trial counsel and Smith...

Cause for stop evaporated

Posted on July 23, 2009
Steven C. Staker and Linda M. Barnes-Pointer won in co-defendants' consolidated cases in State v. Diaz-Ruiz, and State v. Diaz-Gomez, Nos. 100,926 and 100,927 (Kan. App. July 17, 2009), affirming Judge Hornbaker's suppression order. A trooper had stopped a vehicle on suspicion that a ladder was not secured:Trooper Nicholas cited only one basis for the stop, i...

PD Blog Star

Posted on July 22, 2009
Ron Sylvester, at the excellent What the Judge Ate for Breakfast blog, has started a video series titled "Common Law", which will follow court cases that don't necessarily grab the headlines. Sylvester hopes the series will show the human drama in the daily court cases that have an impact on people?s lives...

PD appointed to Sentencing Commission

Posted on July 21, 2009
Gov. Parkinson has appointed Jennifer Roth, a public defender from the Shawnee County PD office, to the Kansas Sentencing Commission. Here is an article from the LJWorld discussing the appointment. Jennifer has done great work the last few years at the legislature on criminal justice issues, and she will undoubtedly be a valuable asset as a member of the Sentencing Commission.

Mandatory drug treatment trumps special sentencing rule [NOT FINAL]

Posted on July 21, 2009
In State v. Casey, No. 100,176 (Kan. App. July 17, 2009), the Court of Appeals agreed with my position that SB 123 mandatory drug treatment trumps the special rule allowing imprisonment for an offense that was committed while on felony bond. The court reversed Casey?s sentence and remanded for resentencing...

Age of defendant is an element of Jessica's Law offense

Posted on July 02, 2009
Randall Hodgkinson won in State v. Bello , No. 99,225 (Kan. July 2, 2009), reversing a Hard-25 life sentence imposed pursuant to K.S.A. 21-4643 (Jessica's Law). The KSC affirmed Mr. Bello's convictions for aggravated criminal sodomy and aggravated indecent liberties with a child, but reversed the life sentence because the State failed to charge and the trial court failed to instruct the jury that Mr...

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