Appellate Decisions
| Publication year | 2012 |
| Pages | 34 |
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Supreme Court
Attorney Discipline
ORDER OF DISBARMENT
IN RE JERROD BLECHA ORIGINAL PROCEEDING IN DISCIPLINE
NO. 20,097 — OCTOBER 24, 2011
FACTS: On October 20, 2011, Jerrod Blecha, 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 panel hearing was pending on a complaint filed in accordance with Supreme Court Rule 211 (2010 Kan. Ct. R. Annot. 327). The complaint, as amended, alleged that respondent violated Kansas Rules of Professional Conduct 8.3(a) (2010 Kan. Ct. R. Annot. 601), Kansas Rules of Professional Conduct 8.4(b) (2010 Kan. Ct. R. Annot. 603), Supreme Court Rule 203(c)(1) (2010 Kan. Ct. R. Annot. 276), and Supreme Court Rule 208(c) (2010 Kan. Ct. R. Annot. 320).
HELD: Court, having examined the files of the office of the disciplinary administrator, found the surrender of the respondent's license should be accepted and that the respondent should be disbarred. Blecha was disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
Civil
HABEAS CORPUS WIMBLEY V. STATE
SEDGWICK DISTRICT COURT — AFFIRMED IN PART COURT OF APPEALS — REVERSED AND REMANDED
NO. 101,595 — AUGUST 12, 2011 MODIFIED NOVEMBER 23, 2011
District court summarily denied Wimbley's second K.S.A. 601507 petition alleging ineffective assistance of counsel and denied Wimbley's request for DNA retesting. Court of Appeals reversed Wimbley's underlying convictions for first-degree murder and criminal possession of firearm, and remanded case for a new trial with directions for a pretrial hearing on questions surrounding DNA evidence on murder weapon. On August 12, 2011, Supreme Court reversed Court of Appeals' decision, affirmed district court's summary denial of the 60-1507 motion as a second or successive petition, and affirmed the district court's denial of Wimbley's request for DNA retesting. State v. Wimbley, 292 Kan. 796 (2011).
The August 12, 2011, opinion is modified to affirm the district court's judgment in part, and to direct the Court of Appeals on remand to consider claims the Court of Appeals had determined were moot, specifically the impact of State v. Gunby, 282 Kan. 39 (2006), and newly discovered evidence in the form of an affidavit from a recanting witness.
Criminal
STATE V. BENNINGTON
SEDGWICK DISTRICT COURT — AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
COURT OF APPEALS — AFFIRMED IN PART AND REVERSED IN PART
NO. 98,656 — OCTOBER 28, 2010
FACTS: William Bennington appeals his convictions and sentences for aggravated burglary, aggravated robbery, aggravated kidnapping, rape, two counts of aggravated criminal sodomy, and two counts of criminal use of a financial card. Bennington sexually attacked and robbed a 77-year-old female. The victim died before Bennington's trial. First, he argues his right to confront his accuser was violated when the trial court admitted into evidence testimony of a bank employee and a sexual assault nurse examiner (SANE) regarding statements made to them by the victim, now deceased. Bennington also argues his convictions must be reversed because the prosecutor committed misconduct by violating an order in limine and by making improper comments during closing argument. Finally, he argues his sentences must be reversed because the court erred by imposing increased sentences based on a criminal history that was not proven to a jury beyond a reasonable doubt.
ISSUES: (1) Right of confrontation, (2) prosecutorial misconduct, and (3) criminal history
HELD: Court rejected most of Bennington's arguments, including those alleging prosecutorial misconduct and proof of criminal history. However, Court found merit in his argument that the victim's statements to the SANE, which were made in the presence of a law enforcement officer who asked questions and reported past events rather than information regarding an ongoing public safety or medical emergency, were testimonial and should not have been admitted. Applying the federal constitutional harmless error standard to determine if this error requires reversal of Bennington's convictions, Court affirmed Bennington's convictions for aggravated burglary, aggravated robbery, aggravated kidnapping, rape, and two counts of criminal use of a financial card. However, Court reversed his convictions on two aggravated criminal sodomy counts because there was a reasonable possibility the error impacted the verdicts on those charges.
STATUTES: K.S.A. 20-3018; K.S.A. 21-3420, -3421, -3427, -3501, -3502, -3506, -3716, -3729; K.S.A. 22-3602; K.S.A. 60404; and K.S.A. 65-448
STATE V HARSH
JOHNSON DISTRICT COURT — AFFIRMED IN PART AND VACATED IN PART
NO. 103,491 — NOVEMBER 18, 2011
FACTS: John Harsh pled nolo contendere to one count of rape for engaging in sexual intercourse with a girl under the age of 14, an off-grid person felony. Prior to sentencing, Harsh moved for a downward departure from the mandatory minimum sentence under Jessica's Law seeking instead a sentence of 258 months. The district court denied Harsh's motion and imposed a sentence of life imprisonment with a mandatory minimum term of imprisonment of 586 months and lifetime post-release supervision.
ISSUES: (1) Jessica's Law and (2) lifetime post-release supervision
HELD: Court held that under the facts of this case, the sentencing court did not abuse its discretion in finding no substantial and compelling reason to depart from the mandatory minimum sentence under Jessica's Law and in denying the defendant's motion for downward departure. The state had urged the court to deny the departure, pointing out that Harsh had raped three separate underage girls after befriending their parents and obtaining access to the victims. However, court vacated the portion of Harsh's sentence ordering lifetime post-release supervision because Harsh's crimes occurred after July 1, 2006.
STATUTES: K.S.A. 21-3502, -3504, -4643; and K.S.A. 22-3717
STATE V. MILLER
SALINE DISTRICT COURT — AFFIRMED COURT OF APPEALS — AFFIRMED
NO. 99,232 — OCTOBER 28, 2011
FACTS: After mistrial in first trial, Miller was convicted of rape, aggravated criminal sodomy, and aggravated indecent liberties with a child. District court denied Miller's pretrial motion to suppress statements made to officer. District court also determined a child witness was a victim but unavailable and disqualified because she was unable or unwilling to take oath, and entered pretrial order limiting testimony about what the child victim said. On appeal, Miller claimed: (1) second trial violated double jeopardy clause, (2) prosecutor improperly appealed to jury's sense of compassion for the victim, (3) district court did not sufficiently investigate whether the child victim was disqualified as a witness, or alternatively, should have required the child victim to testify via closed-circuit television, (4) right to confrontation violated by admission of statements to nurse examiner without opportunity to cross-examine the child victim, (5) district court erred in sentencing him to aggravated sentence without proving aggravating factors or criminal history to a jury, and (6) cumulative error denied him a fair trial. The Court of Appeals affirmed Miller's convictions.
ISSUES: (1) Double jeopardy, (2) appeal to jury's compassion, (3) disqualification of child victim as a witness, (4) confrontation clause, (5) sentencing and criminal history, and (6) cumulative error
HELD: Court affirmed the Court of Appeals decisions that although prosecutor violated pretrial order and caused mistrial to be declared, no evidence the state's conduct was deliberate, a product of ill will, or calculated to force Miller to move for mistrial. No double jeopardy violation in ordering a new trial. Claims regarding prosecutor's questions during trial were not addressed because no contemporaneous objections. No prosecutorial misconduct in closing argument, where prosecutor was responding to Miller's closing argument. Court agreed with the Court of Appeals that the record does not support Miller's claim that district court failed to make required findings of disqualification. Court found no violation of the confrontation clause. Court stated that an objective evaluation of the...
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