Appellate Decisions
| Publication year | 2012 |
| Pages | 30 |
| Citation | Vol. 81 No. 3 Pg. 30 |
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SUPREME COURT
CIVIL
TAXATION
IN RE TAX APPEAL OF FLEET
SHAWNEE DISTRICT COURT─AFFIRMED
NO. 102,645 ─ JANUARY 27, 2012
FACTS: Fleet National Bank and Connell Finance Co. owned business aircraft leased to Westar Energy Inc. Owners applied to Board of Tax Appeals (BOTA) which granted ad valorem tax exemption based on owner's exclusive business use of the aircraft, with no regard to Westar's usage. Following publicity that Westar had misused the aircraft for personal travel, County issued correction orders to add aircraft to tax roll and announce assessments for back taxes, interest and penalties. In re Tax Application of Central Kansas E.N.T. Associates P.A., 275 Kan. 893 (2003), decided the next day, held aircraft would not qualify for exemption if either the owner or lessee did not operate aircraft exclusively for business purpose. Here, owners initiated grievance, and prevailed before BOTA and district court. County appealed.
ISSUE: Issue and claim preclusion
HELD: All elements of both issue and claim preclusion are satisfied in this case, and prevent the County from relitigating the aircrafts' exemption status for the tax years in controversy. Full discussion of why County's objections to application of issue and claim preclusion have no merit in this case, and no statutory mechanism exists for reopening the tax assessments. County's equal protection claim not considered because no cross-appeal filed.
STATUTES: K.S.A. 2010 Supp. 60-2103(h); K.S.A. 20-3018(c); K.S.A. 60-2103(h); K.S.A. 74-2426(c); K.S.A. 77-607, -614, -618, -619(a), -621, -621(c), -621(c)(4); K.S.A. 79-201k First, -201k(b) First, -214, -1422, -1422(a), -1422(c), -1427a, -1427a(a), -1475; and K.S.A. 79-201k(b) First (Ensley 1989)
CRIMINAL
STATE V. BOGGUESS
SEDGWICK DISTRICT COURT─AFFIRMED IN PART AND DISMISSED IN PART
NO. 103,245 ─ JANUARY 20, 2012
FACTS: Bogguess convicted of first-degree murder, aggravated robbery, aggravated kidnapping, aggravated assault, and criminal possession of a firearm. He elected to proceed in bench trial on stipulated facts after district court denied motion to suppress Bogguess' confession. Bogguess appealed. State argued Bogguess failed to lodge a contemporaneous objection during the bench trial and no specific reservation of right to appeal trial court's ruling in the Jackson v. Denno hearing or decision on motion to suppress.
Bogguess also claimed he had a valid Fifth Amendment privilege in the Jackson v. Denno hearing, and that trial court erred in finding Bogguess waived that privilege during the hearing. Bogguess also claimed trial court erred in denying motion to suppress statements regarding prior criminal conduct, and erred in allowing a detective to sit at prosecutor's table contrary to sequestration order. Bogguess also claimed district court erred in not appointing new counsel on pro se claim that counsel had conflict of interest and was ineffective for failing to make closing arguments at bench trial. And Bogguess also alleged error in sentencing, including the trial court's refusal to consider modification of sentence in unrelated case for which Bogguess was on probation when he committed the stipulated offenses.
ISSUES: (1) Reservation of appellate rights, (2) Jackson v. Denno hearing, (3) suppression of confession, (4) trial issues, (5) motion to disqualify trial counsel, and (6) sentencing issues
HELD: Kansas Supreme Court has not weighed in directly on issue of contemporaneous objection rule in a bench trial. Cases in Kansas and other jurisdictions reviewed. When a bench trial consists solely of stipulated facts, there is no opportunity for the defendant to make a contemporaneous objection to the admission of specific evidence. If the bench trial is conducted by same judge who presided over hearing on motion to suppress that evidence, lack of a contemporaneous objection does not bar appellate review of ruling on motion to suppress.
At Jackson v. Denno hearing, issue before trial court is whether a defendant's statement is voluntary. Truthfulness of the statement is not at issue. A defendant may take the stand for limited purpose of testifying about events related to whether the statement was voluntarily made. Questions going to the substance of the statements are outside the scope of a Jackson v. Denno hearing. Here, Bogguess had valid Fifth Amendment privilege. District court erred in ruling that Bogguess must answer questions about events that were the bases for crimes charged and erred in striking all of Bogguess' testimony.
Under facts of case, including testimony erroneously excluded by the district court, Bogguess' confession was voluntary. No error in denying motion to suppress.
Trial error issues are moot because case was tried on stipulated facts.
No abuse of discretion in refusing to appoint new counsel. Trial court had reasonable basis for believing the attorney-client relationship had not deteriorated to where appointed counsel could no longer give effective aid in fair presentation of Bogguess' defense.
No appellate jurisdiction to review presumptive sentence, and Kansas has previously found no merit to Apprendi claim that jury must decide criminal history. No appellate jurisdiction to review sentence imposed in different case for which Court of Appeals had issued mandate when Bogguess failed to seek review.
STATUTES: K.S.A. 60-404
STATE V. JONES
DOUGLAS DISTRICT COURT ─ SENTENCED VACATED AND REMANDED WITH DIRECTIONS
NO. 104,018 ─ JANUARY 20, 2012
FACTS: Jones pleaded no contest to aggravated indecent liberties with a 6-year-old, an off-grid person felony. Under K.S.A. 21-4643(a) (1), (d), the prescribed sentence was life imprisonment with a mandatory minimum of 25 years. The statute allows for a departure if the defendant is a first-time offender and the sentencing court finds substantial and compelling mitigating factors. The sentencing court found there were substantial and compelling reasons to depart from the life sentence and mandatory minimum of Jessica's Law. The court did not make any additional findings before imposing the 120-month sentence agreed upon by the parties. The court denied Jones' argument that lifetime post-release supervision is disproportionate and unconstitutional under § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the U.S. Constitution. As Jones had requested, the court stated its findings on the record; Jones did not object to the findings as being inadequate.
ISSUE: Jessica's Law
HELD: Court held that under the facts of this case, the sentencing court imposed an illegal sentence when it departed from the sentence of life imprisonment that was prescribed in K.S.A. 21-4643(a) (Jessica's Law) without proceeding to the Kansas Sentencing Guidelines Act grid box corresponding to the crime of conviction and the defendant's criminal history.
STATUTES: K.S.A. 21-3504, -4643(a), -4701, -4704, -4721; and K.S.A. 22-3504, -3601(b)(1)
STATE V. GUDER
BOURBON DISTRICT COURT ─ MODIFIED SENTENCE IS VACATED IN PARTAND CASE IS REMANDED COURT OF APPEALS ─ REVERSED
NO. 101,632 ─ JANUARY 27, 2012
FACTS: Guder pleaded guilty and was sentenced on drug charges. In appeal not docketed for seven years, Court of Appeals vacated Guder's sentence on the manufacturing charge and remanded for resentencing. District court resentenced as...
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