Supreme Court Review
| Citation | Vol. 91 No. 5 Pg. 35 |
| Pages | 35 |
| Publication year | 2022 |
September 2022.
Cases "Pulled for Review" for the Upcoming Kansas Supreme Court Term
Collected and summarized by James Hampton and Peyton N. Weatherbie
State v. Berkstresser
No. 122,557
Oral arguments were docketed for Sept. 13, 2022
FACTS: In February 2018, Ryan Berkstresser was driving a car when he was signaled by Haysville Police Sergeant Randy Nowak to pull over for following a car too closely and having incorrect tags on the car that he was operating. Berkstresser did not pull over and instead accelerated.
Berkstresser reached a speed of 72 mph in a 50 mph zone, then turned onto a county road. The officer who was pursuing Berkstresser testified that he assumed the county road speed to be 45 mph, but Berkstresser reached a speed of 65 mph. During the pursuit, Berkstresser drove through two residential yards but did not lose control of the vehicle or have any close encounters with any person or property.
Berkstresser eventually stopped and abandoned his car. A police K-9 unit continued the pursuit on foot and eventually apprehended Berkstresser.
The State charged Berkstresser with:
(1) Fleeing or attempting to elude a police officer by committing five or more moving violations in violation of K.S.A. 2017 Supp. 8-1568(b)(1)(E), a severity level 9, person felony;
(2) in the alternative, fleeing or attempting to elude a police officer by engaging in reckless driving in violation of K.S.A. 2017 Supp. 8-1568(b)(1)(C), a severity level 9, person felony;
(3) possession of marijuana in violation of K.S.A. 2017 Supp. 21-5706(b)(3), a class B, nonperson misdemeanor;
(4) driving with a suspended or canceled license in violation of K.S.A. 2017 Supp. 8-262(a)(1), a class B, nonperson misdemeanor; and
(5) no proof of insurance in violation of K.S.A. 2017 Supp. 40-3104(c), a class B misdemeanor.
Berkstresser pleaded not guilty to all counts. Prior to trial, the State dismissed count 3. A jury convicted Berkstresser of counts 1, 2, and 4, but acquitted him of count 5.
APPEAL: Berkstresser appealed the conviction and asserted that misdemeanor fleeing or eluding a police officer is a lesser included crime to felony fleeing or eluding based on reckless driving, and the district court committed a clear error by not instructing the jury on the lesser included crime. The Kansas Court of Appeals agreed and found that the district court's failure to instruct on the lesser included offense of misdemeanor fleeing or attempting to elude the police was clearly erroneous. The Court reversed the judgment and remanded the case for a new trial with instructions. The Court declined to address the other claims of error. See State v. Berkstresser, 500 P.3d 574 (Kan. Ct. App. 2021). The State appealed to the Kansas Supreme Court.
ISSUE: Whether it is factually appropriate to instruct on misdemeanor fleeing or attempting to elude as a lesser offense of the felony fleeing or attempting to elude charge predicated on reckless driving.
State v. Galloway
No. 122,990
Oral arguments were docketed for Sept. 14, 2022 FACTS: On Dec. 11, 2019, Kerrie Galloway pleaded no contest to her fourth offense: driving under the influence, an off-grid level felony. On Jan. 17, 2020, the district court announced it would follow the plea agreement between Galloway and the State and sentenced her to 12 months in jail, fined her $2,500, and granted her probation with court services for 12 months. The district court ordered Galloway to serve 90 days in jail but authorized house arrest for 2,160 hours after she served 72 hours in jail.
One of the terms of her house arrest was that she remain sober. On April 15, 2020, the State filed a motion to revoke Galloway's house arrest alleging that she had violated the terms of her probation by consuming alcohol. On June 11, 2020, an evidentiary hearing was held on the motion and the district court found that it was more likely than not that Galloway had consumed alcohol. The district court ordered Galloway to surrender to jail custody on June 22, 2020, to serve 90 days in jail followed by probation for 12 months. The district court allowed Galloway jail credit for the three days she served in Reno County Jail but did not award her credit for any of the time she was under house arrest.
APPEAL: Galloway appealed, arguing in part that the district court erred when it failed to give her jail credit for the time she served on house arrest before the order was revoked. She timely appealed and successfully moved the district court for an appeal bond and stay of the 90-day confinement.
The Kansas Court of Appeals found that the district court erred when it failed to give her jail credit for the time she served in house arrest before the order was revoked. The Court remanded the case back to the district court to calculate the time Galloway served under house arrest as part of her DUI sentence and to award her jail credit for that amount of time against the 90 days in jail she was ordered to serve after the hearing on June 11, 2020. See State v. Galloway, 502 P.3d 115 (Kan. Ct. App. 2022). The State appealed the order to the Kansas Supreme Court.
ISSUE: Whether under the 2018 version of K.S.A. 2018 Supp. 8-1567(b)(1)(E) a sentence of house arrest is the equivalent of time spent in jail when calculating time served.
State v. Duncan
No. 123,379
Oral arguments were docketed for Sept. 14, 2022
FACTS: In August 2020, Summer Duncan pled no contest to possession of methamphetamine with intent to distribute. The presentence investigation report listed her criminal history score as a C. The Kansas Sentencing Guidelines use a combination of a defendant's criminal history and the severity level of the crime of conviction to determine a defendant's score. The combination then determines the "presumptive sentencing range for those crimes."
This was based in part on three-person misdemeanor convictions that were aggregated as equivalent to one-person felony under the KSG. Duncan also had three nonperson felony convictions from Arkansas. The presentence investigation report did not include journal entries for any of these convictions. During sentencing, Duncan admitted that she had reviewed the presentence investigation report and had no objections.
Based on Duncan's criminal history score, her presumptive sentence for possession of...
To continue reading
Request your trial