Appellate Decisions
| Publication year | 2014 |
| Pages | 31 |
| Citation | Vol. 83 No. 6 Pg. 31 |
SUPREME COURT
ATTORNEY DISCIPLINE
SIX-MONTH SUSPENSION IN RE BRENDON P. BARKER ORIGINAL PROCEEDING IN DISCIPLINE NO. 110,117 − APRIL 11, 2014
FACTS: This is a contested original proceeding in discipline filed by the office of the disciplinary administrator against the respondent, Brendon P. Barker, of Pratt, an attorney admitted to the practice of law in Kansas in 2001. Barker's ethics violations involved his representation in a conservatorship and guardianship case. The time spent dealing with problems in his family life and outside business ventures contributed to Barker's misconduct in this case.
DISCIPLINARY ADMINISTRATOR: On March 20, 2013, the office of the disciplinary administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on April 29, 2013, admitting that he violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); KRPC 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); KRPC 1.4 (2013 Kan. Ct. R. Annot. 484) (communication); KRPC 1.16(a)(2) (2013 Kan. Ct. R. Annot. 569) (declining or terminating representation); and KRPC 8.4(g) (2013 Kan. Ct. R. Annot. 655) (engaging in any other conduct that adversely reflects on the lawyer's fitness to practice law). Walczak recommended that the respondent be suspended from the practice of law for a period of six to nine months.
HEARING PANEL: The Hearing Panel agreed with the violations admitted by Barker. The Hearing Panel unanimously recommended that the respondent be suspended for a period of six months.
HELD: Court suspended Barker from the practice of law for six months. Court found Barker acted with knowledge and a conscious awareness of his misconduct, that he engaged in the misconduct for five years, his client was vulnerable and inexperienced with legal matters, he was indifferent to making restitution prior to the hearing, and that his answer to the complaint was untimely. Before he is reinstated, Barker must show he has fully paid or entered into a written plan to fully pay restitution for in misconduct in the amount of $21, 351.55.
TWO-YEAR SUSPENSION SUSPENDED AND RESPONDENT PLACED ON TWO YEARS' SUPERVISED PROBATION IN RE KEVIN DELLETT ORIGINAL PROCEEDING IN DISCIPLINE NO. 110,452 − MARCH 28, 2014
FACTS: This is an original proceeding in discipline filed by the office of the disciplinary administrator against the respondent, Kevin E. Dellett, of Overland Park, an attorney admitted to the practice of law in Kansas in 1995. Dellet's conduct involved failure to communicate with clients, failure to keep time records in a criminal case, allowing a divorce case to go into default, failure to timely file a lawsuit, and improper billing.
DISCIPLINARY ADMINISTRATOR: On September 20, 2012, the office of the disciplinary administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer and also eventually filed a plan of probation. On February 11, 2013, the deputy disciplinary administrator and respondent agreed to a lengthy, written stipulation which the hearing panel accepted at the April 10, 2013, hearing on the formal complaint.
HEARING PANEL: Based upon this stipulation, the hearing panel determined respondent violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 1.5(a) (2013 Kan. Ct. R. Annot. 503) (fees); 1.16(d) (2013 Kan. Ct. R. Annot. 569) (termination of representation); and 8.4(d) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct prejudicial to administration of justice).
HELD: Court deemed the panel's findings of fact admitted and the evidence before the hearing panel was established by clear and convincing evidence the charged misconduct in violation of the KRPC. Court considered respondent's violations, the aggravating and mitigating circumstances, the relevant ABA Standards, and respondent's detailed probation plan, as well as his demeanor and presentation before this tribunal. Court concluded it is in the interest of the citizens of Kansas and the legal profession to suspend respondent for two years but to suspend that suspension as long as respondent adheres to the probation plan detailed in the final hearing report with one change. Court modified the probation plan to the extent it placed respondent on probation until released by this court and instead directed that respondent be placed on probation for a two-year term.
CRIMINAL
STATE V. ALDERSON SEDGWICK DISTRICT COURT − AFFIRMED NO. 106,471 − APRIL 11, 2014
FACTS: In 1995, Alderson was convicted of one count of felony murder and one count of aggravated battery. The Court previously affirmed the convictions, vacated the upward durational departure sentence, and remanded. The new sentence, which was imposed on October 30, 1996, and which was the same upward departure sentence of life imprisonment with a consecutive sentence of 86 months for aggravated battery, was affirmed by this Court. The issue of restitution was not addressed in the previous two appeals. The sentencing court ordered Alderson to pay restitution to various individuals and entities, including a hospital, insurance companies, and the Kansas Crime Victims Compensation Board, totaling $119, 899.86. That amount was based on the calculations made at the original sentencing hearing. It appears that no restitution has ever been collected from Alderson. In 2009, Alderson filed a pro se motion requesting to be released from the restitution order based on dormancy. The district court summarily denied the motion.
ISSUES: (1) Restitution and (2) dormancy
HELD: Court concluded that the district court did not enter an enforceable restitution judgment when it sentenced Alderson. It instead provided an advisory calculation of damages for the benefit of the Kansas Prisoner Review Board. There being no judgment of restitution, the judgment could not become dormant. The notice that Municipal Services Bureau sent Alderson erroneously asserted that he was in default on a judgment, even if the notice was commissioned on behalf of the district court. Equitable principles, such as quasi-estoppel, cannot be used to convert a legal criminal sentence into an illegal sentence. When it denied Alderson's dormancy claim, the district court relied on Robards, 31 Kan. App. 2d 1138, and ruled that the statutory period to enforce the judgment would begin when he is released from prison. Because of statutory changes, Robards no longer accurately describes the law in this state. The district court was correct, however, in rejecting Alderson's petition seeking a declaration of dormancy. Because there is no pending judgment ordering Alderson to pay restitution, the district court had no jurisdiction to release an obligation on his part.
STATUTES: K.S.A. 21-4301, -4603, -4603d, -6604; K.S.A. 22-3424; and K.S.A. 60-2403
STATE V. BETANCOURT SEDGWICK DISTRICT COURT − AFFIRMED NO. 106,318 − APRIL 11, 2014
FACTS: Betancourt was convicted of first-degree murder and criminal discharge of a firearm at an occupied building after he and three other people orchestrated a revenge shooting directed at the individual who allegedly was involved in an altercation that ended with Betancourt's brother going to the hospital. Betancourt challenged the jury instructions with regard to intent, aiding and abetting, and voluntary intoxication. He also challenged gang evidence elicited during voir dire and also cumulative error.
ISSUES: (1) Jury instructions, (2) gang evidence during voir dire, and (3) cumulative error
HELD: Court held the jury instruction explicitly required the jury to find that Betancourt intended to aid and abet in a killing done with premeditation and the instructions accurately stated Kansas law. Court held that murder by shooting a gun and murder by facilitating the shooter are not separate means of committing a shooting crime that required alternative instructions. Court found aiding and abetting is not alternative means, the jury was properly instructed on the elements of first-degree murder and sufficient evidence supported that conviction. Court held that although Betancourt's consumption of intoxicants was introduced, it was never emphasized or shown to have impaired his ability to form the intent to aid and abet a murder. Therefore, not error to omit an instruction on voluntary intoxication. The Court found the juror who mentioned gang involvement did so only in passing and the topic was not brought up again. The defense did not ask for permission to conduct an examination of the jury for prejudice, did not request an instruction directing the jury to disregard unsworn statements by jury members, and the defense did not seek to strike the juror in question for cause. Last, the Court found no cumulative error.
STATUTES: K.S.A. 21-3205, -3401, -3423, -4226; K.S.A. 22-3414; and K.S.A. 60-261, -2105
STATE V. BRADFORD DICKINSON DISTRICT COURT − AFFIRMED NO. 108,748 − APRIL 25, 2014
FACTS: Bradford filed 2012 motion to correct illegal sentence, claiming his underlying convictions arising from a 1997 fatal home invasion were multiplicitous. District court considered motion on its merits and determined the convictions were not multiplicitous. Bradford appealed.
ISSUE: Motion to correct illegal sentence
HELD: Consistent with well-established case law, issue raised in Bradford's motion is a collateral attack on his convictions rather than a sentencing issue. District court's denial of motion is affirmed because remedy was inappropriate, and not on district court's assessment of merits.
STATUTES: K.S.A. 2013 Supp. 22-3601(b)(3); and K.S.A. 22-3504
STATE V. FRITZ SEDGWICK...
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