Appellate Decisions
| Publication year | 2012 |
| Pages | 44 |
SUPREME COURT
ATTORNEY DISCIPLINE
ORDER OF DISBARMENT IN RE RICHARD B. PAYNE ORIGINAL PROCEEDING IN DISCIPLINE NO. 18,308 - AUGUST 17, 2012
FACTS: In a letter received by the clerk of the appellate courts dated August 15, 2012, respondent Richard B. Payne, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas. At the time the respondent surrendered his license, a complaint docketed for investigation was pending. The complaint contains allegations of misconduct by the respondent in committing multiple violations of traffic laws, eluding police, and unlawfully disposing of a loaded firearm. Respondent's trial is pending in the Wyandotte County District Court for the alleged misconduct.
HELD: Court examined the files of the office of the disciplinary administrator and found that the surrender of the respondent's license should be accepted and that the respondent should be disbarred.
ORDER OF DISBARMENT IN RE CLIFFORD R. ROTH ORIGINAL PROCEEDING IN DISCIPLINE NO. 08,087 - AUGUST 15, 2012
FACTS: In a letter received by the clerk of the appellate courts on August 10, 2012, respondent Clifford R. Roth, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas. At the time the respondent surrendered his license, there was a panel hearing pending. The complaint alleged that respondent violated Kansas Rules of Professional Conduct 4.1 (2011 Kan. Ct. R. Annot. 581) and 8.4(b) (2011 Kan. Ct. R. Annot. 618).
HELD: Court examined the files of the office of the disciplinary administrator and found that the surrender of the respondent's license should be accepted and that the respondent should be disbarred.
CIVIL
MEASURE OF DAMAGES AND REPLACEMENT COST OR DIMINUTION OF VALUE EVENSON V. LILLEY GREENWOOD DISTRICT COURT - AFFIRMED COURT OF APPEALS - AFFIRMED NO. 102,100 - AUGUST 17, 2012
FACTS: The Evensons own a 160-acre tract of land in rural Greenwood County, which they use primarily for recreation. The Evensons have maintained a number of pine trees, fruit trees, and grape and berry plants that existed on the property at the time they purchased the land in 2002. The property also had a utility building, a three-sided pole barn, and a three-sided shed or lean-to at the time of purchase. All of the structures were made of wood with tin roofs. The Evensons leased a portion of the property for the production of crops. Lilley leased pastureland on property adjacent to the Evensons' tract for grazing cattle. On April 12, 2006, Lilley started a controlled burn of his leased pastureland, but the fire grew out of control and passed over to the Evensons' property, essentially burning the entire tract. The Evensons filed suit against Lilley for negligence, claiming damages in excess of $75,000. The district court ruled the damage to the property was permanent in nature and the proper measure of damages was the diminution in the value of the property, consistent with PIK Civ. 4th 171.20. The court adopted the appraisal values submitted by Lilley and the debris clean-up cost submitted by the Evensons, awarding the Evensons a total of $7,687 plus applicable interest. Court of Appeals affirmed and stated that in light of the lack of evidence demonstrating the value of the trees destroyed by the fire, the proper measure of damages is the difference between the market value of the property before and after the fire.
ISSUES: (1) Measure of damages and (2) replacement cost or diminution of value
HELD: Court held the Evensons made little showing that the trees had any value independent of their value to the land. It is true that Mark Evenson testified that his family used the land recreationally for picnicking and hunting, but he proffered no showing that the trees were important to those activities or that the enjoyment of those activities was reduced in any substantial way by the loss of trees in general or the loss of particular trees. He provided some speculative testimony that he might someday build a residence on the land, despite the lack of electricity, water, or sewage facilities, but he did not attempt to show that the damaged trees would have improved the value of such a residence. Court held that the district court and the Court of Appeals incorrectly attempted to superimpose principles of temporary and permanent damages on the facts of this case. Their conclusions were correct, however, and the district court did not err in relying on a diminished-value calculation of property loss.
STATUTES: No statutes cited.
MENTAL HEALTH - SEX OFFENDERS IN RE ONTIBEROS SEDGWICK DISTRICT COURT – REVERSED AND REMANDED COURT OF APPEALS - AFFIRMED NO. 100,362 - AUGUST 17, 2012
FACTS: In proceeding under Kansas Sexually Violent Predator Act (KSVPA), voluminous exhibit admitted for limited purpose of providing two expert witnesses access to documents to use in evaluating Ontiberos, and for appellate record. Jury found Ontiberos was a sexually violent predator. He appealed claiming KSVPA is unconstitutional because it contains no way to contest competence of court-appointed attorney. Supreme Court granted motion to remand to district court for Van Cleave hearing on newly asserted claim of ineffective assistance of counsel. On remand, district court conducted hearing and denied ineffective assistance of counsel claim, finding defense counsel stipulated to the exhibit, and foundation for admitting the documents could have been proven. Ontiberos appealed. Court of Appeals vacated the commitment and remanded for new trial, 45 Kan. App. 2d 235 (2011). It rejected Ontiberos' claim that KSVPA was unconstitutional, but found Ontiberos received ineffective assistance of counsel and state's attorney committed misconduct during the trial. Both sides petitioned for review.
ISSUES: (1) Constitutionality of KSVPA, (2) ineffective assistance of counsel in KSVPA proceeding, and (3) opposing counsel's misconduct
HELD: Court of Appeals failed to distinguish KSVPA proceedings from those under K.S.A. 60-1507. Under case law and factors in Mathews v. Eldridge, 424 U.S. 319 (1976), a person has due process right to assistance of counsel at a KSVPA trial, thus a correlative right to competent, effective counsel. KSVPA is constitutional even though it contains no specific statute allowing a respondent to challenge the effectiveness of court appointed counsel. A person detained under KSVPA may raise an ineffective assistance of trial counsel claim on direct appeal using Van Cleave remand procedure or through a collateral attack using K.S.A. 60-1501.
Trial counsel was ineffective. Two prong Strickland test applies. The more limited test applied by Montana courts is not adopted. Defense counsel's performance fell below objective standard of reasonableness because he failed to introduce evidence of favorable 2006 test, failed to familiarize himself with statutory evidentiary requirements and court decisions before stipulating to allowing expert review evidence that was arguable inadmissible, failed to object when state impeached Ontiberos and his expert witness without introducing extrinsic evidence to complete the impeachment, and failed to object to state's mischaracterization of corrections department discipline report. Given pervasive nature of counsel's errors, there was reasonable probability that outcome would have been different.
Addressing issue that may arise on remand, court notes state's misconduct in attempting to impeach Ontiberos and doctor without admitting evidence to complete the impeachment.
STATUTES: K.S.A. 2011 Supp. 59-29a06(c); K.S.A. 20-3018(b); K.S.A. 59-29a01 et seq., -29a03(a), -29a03(e), -29a04(a), -29a05, -29a05(a), -29a05(b), -29a05(c)(1), -29a06(a), -29a06(b), -29a06(e), -29a07, -29a07(a); and K.S.A. 60-456(b), -460m, -1501, -1501(a), -1507, -1507(a)
CRIMINAL
STATE V. BROWN COWLEY DISTRICT COURT - CONVICTIONS AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS NO. 103,842 – AUGUST 24, 2012
FACTS: A jury found Brown guilty of one count of aggravated indecent liberties with a child under the age of 14 and one count of lewd and lascivious behavior in the presence of a person under the age of 16. These convictions were related to conduct that occurred during the weekend of April 17, 2009, to April 19, 2009, when an 8-year-old girl, G.V., stayed with Brown. The trial court sentenced Brown to life imprisonment with a mandatory minimum term of not less than 25 years for the aggravated indecent liberties conviction and to a concurrent sentence of 12 months' probation with an underlying term of 12 months' imprisonment for the lewd and lascivious behavior conviction. Although not announced at the sentencing hearing, the journal entry indicated the court also imposed a term of lifetime post-release supervision for the aggravated indecent liberties conviction.
ISSUES: (1) Alternative means, (2) admission of evidence, (3) prosecutorial misconduct, and (4) sentencing
HELD: Court rejected Brown's alternative means arguments concerning both of his convictions. Court held that a statute - and any instruction that incorporates it - must list distinct alternatives for a material element of the crime, not merely describe a material element or a factual circumstance that would prove the crime, in order to qualify for an alternative means analysis and application of the super-sufficiency requirement. Court held that the legislature did not define the requisite mens rea element for aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(A) in two or more distinct ways. The phrase "either the child or the offender, or both" merely describes a secondary matter, the potential yet...
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