Appellate Decisions
| Jurisdiction | Kansas,United States |
| Citation | Vol. 83 No. 9 Pg. 35 |
| Pages | 35 |
| Publication year | 2014 |
SUPREME COURT
CRIMINAL
IN RE A.M.M.-H. JOHNSON DISTRICT COURT – REVERSED AND REMANDED COURT OF APPEALS – REVERSED NO. 109,355 – AUGUST 8, 2014
FACTS: In early 2011, A.M.M.-H. pleaded guilty to one count of aggravated indecent liberties with a minor in violation of K.S.A. 21-3504(a)(3), a severity level 3 person felony, and one count of aggravated intimidation of a witness, K.S.A. 21-3833, a severity level 6 person felony.
A.M.M.-H. was sentenced in an extended juvenile jurisdiction proceeding. As a violent II juvenile offender under K.S.A. 2010 Supp. 38-2369(a)(1)(B), A.M.M.-H. received 24 months' incarceration and an aftercare term of 24 months. His adult sentence, stayed pending successful completion of his juvenile sentence, was 59 months for the aggravated indecent liberties count and 18 months for the aggravated intimidation of a witness count. The adult sentences were ordered to run concurrently, and the district judge ordered lifetime post-release. A.M.M.-H. was placed in the Kansas Juvenile Correctional Complex on April 20, 2011. Because of time already served, he was scheduled to be released in September 2012. A.M.M.-H. entered into a "Conditional Release Contract," a "Juvenile Intensive Supervision Contract," and a "Formal Acknowledgment of the Conditional Release Contract." After A.M.M.-H. failed to return home, the State filed a motion to revoke A.M.M.-H's juvenile sentence and execute the adult prison sentence. District Judge Foster found that A.M.M.-H. "violated the terms of his Conditional Release Contract" and revoked conditional release. The judge then ordered A.M.M.-H. to serve his adult prison sentence. On appeal, the Court of Appeals panel agreed with the state, holding that a juvenile who completes the incarceration portion of a juvenile sentence under extended juvenile jurisdiction proceedings and who is granted conditional release may be ordered to serve the adult sentence previously entered by the court if the juvenile violates the provisions of the conditional release.
ISSUE: Extended juvenile jurisdiction proceedings
HELD: Court stated that if a juvenile offender subject to extended juvenile jurisdiction is placed on conditional release from his or her juvenile sentence and violates a condition, the violation qualifies as a violation of the juvenile sentence. Court held that under K.S.A. 2013 Supp. 38-2364(b), when an extended jurisdiction juvenile has violated a condition of his or her sentence, a district judge is permitted to revoke the stay of the adult sentence and execute it. If the juvenile challenges the allegations of a violation and the district judge holds a hearing and finds by the preponderance of the evidence that a violation occurred, revocation of the stay is automatic and the adult sentence is executed unless the state and the defense agree to a modification. If the state prompts a hearing on a motion to revoke based on the allegations of a violation and the district judge finds a violation occurred, the statute is silent. The district judge retains discretion on whether to revoke and order execution of the adult sentence. Court held it is an abuse of discretion for a district judge to fail to appreciate that he or she has discretion and then to exercise it. Court held because it is unclear from the record on appeal whether the district judge knew he had discretion not to execute the adult sentence upon a finding of violation of the terms of A.M.M.-H.'s conditional release, Court remanded to the district court for reconsideration of the state's motion to revoke.
STATUTES: K.S.A. 21-3504, -3833; and K.S.A. 38-2302, -2304, -2327, -2347, -2356, -2361, -2364, -2365, -2369, -2374, -2375
STATE V. BROWN WYANDOTTE DISTRICT COURT – AFFIRMED NO. 106,111 – AUGUST 15, 2014
FACTS: Brown tried as adult and convicted of felony murder and attempted aggravated robbery for crimes committed when she was 13 years old. Controlling hard 20 life sentence imposed. On appeal she claimed district court erred in analyzing statutory factors in waiving juvenile jurisdiction, and in instructing jury that killing in flight from an attempt to commit an inherently dangerous felony constitutes felony murder. She also claimed that insufficient evidence supported her conviction on each alternative means specified in felony murder statute, and her conviction for attempted aggravated robbery. She further claimed prosecutorial misconduct during closing argument, and claimed mandatory life sentences are unconstitutional as applied to offenders under 18 years old at time of crimes.
ISSUES: (1) Juvenile jurisdiction waiver, (2) felony-murder instruction, (3) felony-murder alternative means, (4) sufficiency of the evidence, (5) prosecutorial misconduct, and (6) constitutionality of hard 20 sentence
HELD: No abuse of district court's discretion in its analysis of K.S.A. 2013 Supp. 38-2347(f)(1) factors in authorizing adult prosecution. Evidence supported district court's determination that available facilities or programs were not likely to rehabilitate Brown before juvenile jurisdiction expired. No merit to argument that second and third statutory factors are duplicitous for off-grid offenses. District court considered circumstances of the crime when assessing Brown's maturity level, and even if error in finding Brown's maturity level weighed in favor of waiver based on her grooming habits, that error alone is not reversible.
District court's felony-murder instruction in this case was accurate statement of law and was factually appropriate given the evidence presented at trial.
State v. Cheffen, 297 Kan. 689, cert. denied 134 S. Ct. (2013), defeats claim that felony murder statute sets out alternative means of committing felony murder. Sufficient evidence supports the attempted aggravated robbery conviction.
Prosecutor's statement that Brown had the weekend to "decide" how to testify in response to evidence against her was gross and flagrant misconduct, but not motivated by ill will. Given the direct and overwhelming evidence against Brown, there was no reversible error.
Statutory sentencing scheme requiring that mandatory hard 20 life sentences be imposed on defendants convicted of felony murder does not violate Eighth Amendment of U.S. Constitution as applied to defendants who were under 18 years of age at the time of their crimes.
STATUTES: K.S.A. 2013 Supp. 38-2301 et seq., -2302(i), -2302(n), -2304, -2347(a)(1), -2347(a)(2), -2347e)(1)-(3), -2347(f) (1); K.S.A. 21-3301(a), -3401, -3401(b), -3426, -3427, -3436(4), -4706(c); K.S.A. 22-3414(3), -3601(b)(1), -3717(b)(2); and K.S.A. 60-261
STATE V. BROWN SEDGWICK DISTRICT COURT – REVERSED AND REMANDED NO. 106,894 – AUGUST 15, 2014
FACTS: Brown convicted of felony murder, alternative charge of second-degree murder, aggravated burglary, and aggravated assault. On appeal he claimed in part: (1) district court abused its discretion in not inquiring into reasons behind Brown's pre-trial pro se motion for new counsel before allowing the motion's withdrawal outside Brown's presence and without a hearing; (2) insufficient evidence supported the convictions; and (3) district court erred in denying Brown's requested lesser included offense instructions of voluntary manslaughter, reckless second-degree murder, and involuntary manslaughter.
ISSUES: (1) Withdrawal of pro se motion for new counsel without inquiry, (2) sufficiency of the evidence, (3) lesser included offense instructions, and (4) error in journal entry of judgment
HELD: Brown's motion for new counsel contained sufficient information to trigger district court's duty to make further inquiry. District court's failure to do so before allowing the apparently non-consensual withdrawal of Brown's pro se motion for new counsel was abuse of district court's discretion. Case is remanded with instructions for district court to conduct hearing on Brown's claim of attorney dissatisfaction, at which Brown is to be represented by conflict-free counsel.
Sufficient evidence supports Brown's aggravated burglary conviction. He did not have either express or implied authority to enter victim's apartment notwithstanding argument that victim did not lock door or even have a key, and that people regularly "crashed" there. In support of felony murder conviction, state presented sufficient evidence of underlying felony. Victim's statement that she felt threatened when Brown pointed a gun at her and demanded that she get down on the floor was sufficient evidence to support apprehension of immediate bodily harm element of aggravated assault.
Under facts in this case, district court did not err in declining to instruct jury on voluntary manslaughter, and no possibility that jury would have reached a different verdict if given options of reckless second-degree murder or involuntary manslaughter.
State concedes error in journal entry of judgment that incorrectly described Brown's second-degree murder conviction as an "off-grid" severity level crime. Remanded for nunc pro tunc correction.
STATUTES: K.S.A. 2013 Supp. 22-3501, -3501(1); K.S.A. 21-3201(c), -3402, -3402(b), -3403, -3403(a), -3404(a), -3408, -3410(a), -3716; and K.S.A. 22-3414(3), -3504(2)
STATE V. DE LA TORRE FORD DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, AND REMANDED NO. 107,905 – AUGUST 15, 2014
FACTS: De La Torre appealed from his convictions of one count of abuse of a child and one count of felony murder, arising from the death of an 11-month-old child who was in De La Torre's care. There were two trials because the first jury, which convicted De La Torre on the child abuse charge, could not reach a unanimous verdict on the felony-murder charge. The second jury trial resulted in his conviction of felony murder. De La Torre raises several issues relating to each trial and one...
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