Appellate Decisions
| Jurisdiction | Kansas,United States |
| Citation | Vol. 80 No. 7 Pg. 44 |
| Pages | 44 |
| Publication year | 2011 |
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Supreme Court
Attorney Discipline
ORDER OF REINSTATEMENT IN RE KEVIN PETER SHEPHERD ORIGINAL PROCEEDING IN DISCIPLINE NO. 102,925 – MAY 2,, 2011
FACTS: On November 25, 2009, Court suspended the respondent, Kevin Peter Shepherd, from the practice of law in Kansas for a period of three years. On November 30, 2010, Shepherd filed a motion to suspend the imposition of the remaining two years of suspension. In the response, the disciplinary administrator acknowledged that the respondent fully complied with the orders in the Court's November 25, 2009, opinion. The disciplinary administrator approved the respondent's plan of probation and did not object to the respondent's request to be placed on probation.
HELD: Court granted Shepherd's motion to suspend the remaining two years of suspension from the practice of law in Kansas and placed him on probation with the following terms and conditions: continued therapy and medication; limitation of practice to domestic relations, criminal defense including driver's license suspension and drug tax; supervision by Terry Beck; audits by practice supervisor every six months; appropriate office management; continued cooperation with disciplinary administrator; maintain professional liability insurance; and no violations of the Kansas Rules of Professional Conduct.
ORDER OF DISBARMENT IN RE MARK P. TILFORD ORIGINAL PROCEEDING IN DISCIPLINE NO. 15713 – JUNE 3, 2011
FACTS: In a letter dated May 16, 2011, addressed to the Clerk of the Appellate Courts, respondent Mark P. Tilford, of Corpus Christi, Texas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2010 Kan. Ct. R. Annot. 362). At the time the respondent surrendered his license, an investigation was pending on a complaint in accordance with Supreme Court Rule 211 (2010 Kan. Ct. R. Annot. 327). The complaint concerns allegations of misconduct that respondent violated Kansas Rule of Professional Conduct 8.4(b) (2010 Kan. Ct. R. An-not. 603).
HELD: Court, having examined the files of the office of the disciplinary administrator, found that the surrender of the respondent's license should be accepted and that the respondent should be disbarred. Tilford is disbarred from the practice of law in Kansas, and his license and privilege to practice law are revoked.
INDEFINITE SUSPENSION IN REJIMMIE A. VANDERBILT ORIGINAL PROCEEDING IN DISCIPLINE NO. 105,492 – JUNE 3, 2011
FACTS: This is an original attorney discipline proceeding filed by the office of the disciplinary administrator against the respondent, Jimmie A. Vanderbilt, of Baldwin City, an attorney admitted to the practice of law in Kansas in 1995. Respondent eventually signed a stipulation of facts with the disciplinary administrator's office. The proceedings against Vanderbilt resulted from his failure to pay child support and his representation of two criminal matters where he failed to appear at hearings because he was incarcerated because of child support issues. Vanderbilt was in arrears for child support in an amount more than $75,000.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that Vanderbilt be indefinitely suspended. If definitely suspended, the disciplinary administrator recommended that Vanderbilt purge himself of the contempt of court prior to reinstatement.
HEARING PANEL: A panel of the Kansas Board for Discipline of Attorneys held a hearing on the complaint and determined that respondent violated KRPC 8.4(a) (2010 Kan. Ct. R. Annot. 603) (misconduct); 8.4(d) (engaging in conduct prejudicial to the administration of justice); 8.4(g) (engaging in any other conduct that adversely reflects on the lawyer's fitness to practice law); and Kansas Supreme Court Rule 211(b) (2010 Kan. Ct. R. Annot. 327) (failure to file timely answer in disciplinary proceeding).
HELD: Court held the evidence established the charged misconduct of Vanderbilt by clear and convincing evidence and supported the panel's conclusions. A majority of the Court agreed that indefinite suspension is appropriate, with reinstatement conditioned upon respondent purging himself of the contempt that is the subject of the proceedings. A minority of the Court would disbar Vanderbilt.
CIVIL
HABEAS CORPUS ALBRIGHT V. STATE KINGMAN DISTRICT COURT COURT OF APPEALS – REVERSED AND REMANDED NO. 102,454 – MAY 20, 2011
FACTS: Albright's first-degree murder conviction and hard 40 life sentence were affirmed in direct appeal, 283 Kan. 418 (2007). He filed K.S.A. 60-1507 motion alleging ineffective assistance of trial counsel. District court appointed counsel and denied the 1507 motion. Albright sought out of time appeal, arguing his untimely filing was excused by ineffective assistance of appointed 1507 counsel in failing to file a notice of appeal. District court appointed counsel to represent Albright at State v. Ortiz, 230 Kan. 733 (1982), hearing, and approved an agreed order to allow the appeal out of time. Court of Appeals dismissed the appeal for lack of jurisdiction as untimely filed. Supreme Court granted Albright's petition for review.
ISSUE: Out of time 60-1507 appeal and ineffective assistance of appointed 60-1507 counsel
HELD: Court of Appeals erred in dismissing the appeal. Extensive discussion of impact on Ortiz exceptions by State v. Patton, 287 Kan. 200 (2008), Guillory v. State, 285 Kan. 223 (2007), Kargus v. State, 284 Kan. 908 (2007), and Brown v. State, 278 Kan. 481 (2004). If district court appoints counsel to represent a 60-1507 indigent movant after finding the 1507 motion presents substantial questions of law or triable issue of fact, movant has right to effective assistance of counsel. Based on state's stipulation, no need to remand for hearing to determine whether appointed 1507 counsel's performance was deficient pursuant to the Strickland test as applied in Roe v. Flores-Ortega, 528 U.S. 470 (2000). Remedy for appointed counsel's deficient performance is to accept subject matter jurisdiction of Albright's appeal. Court of Appeals' order denying jurisdiction is reversed, Remand to Court of Appeals for consideration of Albright's appeal of district court's denial of the 1507 motion.
STATUTES: K.S.A. 20-3018(c); K.S.A. 22-3210(a)(2), -3424(f), -4505, -4506(b), -4522(e)(4); and K.S.A. 60-1507, -2103(a)
HABEAS CORPUS HOLMES V. STATE SEDGWICK DISTRICT COURT – REVERSED AND REMANDED COURT OF APPEALS – REVERSED NO. 100,666 – JUNE 10, 2011
FACTS: Holmes received hard 40 sentence on first-degree murder conviction that was reversed and remanded for a new trial because of prosecutorial misconduct. State v. Holmes, 272 Kan. 491 (2001) (Holmes I). Second jury convicted him of same offense. Supreme Court affirmed the conviction but vacated hard 40 sentence and remanded for resentencing because insufficient evidence of aggravating circumstances to support that sentence. State v. Holmes, 278 Kan. 603 (2004) (Holmes II). Hard 25 sentence imposed on remand affirmed in unpublished opinion. Holmes then filed postconviction motion under K.S.A. 60-1507 on allegations including ineffective assistance of appellate counsel in Holmes II. District court denied the motion without an evidentiary hearing. Holmes appealed on three allegations of ineffective assistance of appellate counsel in Holmes II. Court of Appeals affirmed in unpublished opinion (Holmes III). Review granted on two points presented to Court of Appeals.
ISSUES: (1) Appellate counsel's failure to challenge effectiveness of trial counsel and (2) appellate counsel's failure to include videotape and transcript in record on appeal
HELD: Under facts in case, performance prong of Strickland not satisfied by trial counsel's use of alternative guilt and nonguilt theories of defense. Because trial counsel employed a justifiable strategy, Holmes' appellate counsel was not ineffective for failing to challenge that sound strategy on direct appeal.
Language in Holmes II is examined and clarified. Under facts, district court erred in dismissing, without an...
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