July/August 2017 Journal

Your Partner in the Profession | July/August 2017 • Vol. 86 • No. 7

Kansas Sentencing Guidelines

by Terri Savely P 22

Why You Should Consider Serving in the Kansas Legislature

by State Rep. John Carmichael P9

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22 | Kansas Sentencing Guidelines

By Terri Savely

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6 | KBA President To Know Where We are Going, We Must Know

16 | Outstanding IOLTA Banks Recognized

9 | Why You Should Consider Serving in the Kansas Legislature

42 | 2017 Annual Meeting Highlights & Thank Yous

Where We Have Been .................Gregory P. Goheen

By State Representative John Carmichael

18 | 2017 President's Cup Golf Tournament Results 66 | Portraits in Justice Revisited Leavenworth Co. Celebrates Its Judiciary

Regular Features 11 | A Nostalgic Touch: Reflections on Vietnam and 53 | KBF the West Point Class of 1966 From the 2017-2018 KBF President

By Matt Keenan

By Evelyn Z. Wilson, KBF President 17 | Law Practice Management Tips & Tricks

Quick Tips and Tricks............... Larry N. Zimmerman

19 | YLS President

Ready. Set. Go..................................... Clayton Kerbs

38 | Upcoming CLE Schedule 40 | The Diversity Corner

Hobbies (or Staying Happy and Healthy in Highly Stressful Professions)........................Amanda Stanley

52 | Substance and Style Thank You Notes.................................... Emily Grant

56 | Members in the News 57 | Obituaries 64 | Do You Know What's New With Casemaker?

The Legal Researching Bundle Available May Surprise You

By Sara Rust-Martin

67 | Appellate Decisions 80 | Appellate Practice Reminders Annual Attorney Registration for 2017-2018

By Douglas T. Shima

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THE

JOURNAL

OF THE KANSAS BAR ASSOCIATION 2017-18

Journal Board of Editors Emily Grant, chair, emily.grant@washburn.edu Sarah G. Briley, sbriley@morrislaing.com Hon. David E. Bruns, brunsd@kscourts.org Richard L. Budden, rbudden@sjblaw.com Boyd A. Byers, bbyers@foulston.com Jennifer Cocking, JCocking@capfed.com Connie S. Hamilton, jimandconniehamilton@gmail.com Michael T. Jilka, mjilka@jilkalaw.com Lisa R. Jones, ljones@fgcu.edu Hon. Janice Miller Karlin, judge_karlin@ksb.uscourts.gov Casey R. Law, claw@bwisecounsel.com Hon. Robert E. Nugent, judge_nugent@ksb.uscourts.gov Professor John C. Peck, jpeck@ku.edu Rachael K. Pirner, rkpirner@twgfirm.com Richard D. Ralls, rallslaw@turnkeymail.com Karen Renwick, krenwick@wbsvlaw.com Teresa M. Schreffler, tschreffler@gmail.com Richard H. Seaton Sr., seatonlaw@sbcglobal.com Sarah B. Shattuck, bootes@ucom.net Richard D. Smith, rich.smith@ag.ks.gov Marty M. Snyder, marty.snyder@ag.ks.gov Patti Van Slyke, journal editor and staff liaison, pvanslyke@ksbar.org Catherine A. Walter, cwalter@topeka.org Meg Wickham, dir. of communications and member svcs., mwickham@ksbar.org Issaku Yamaashi, iyamaashi@foulston.com Natalie Yoza, yozan@kscourts.org The Journal Board of Editors is responsible for the selection and editing of all substantive legal articles that appear in The Journal of the Kansas Bar Association.

The board reviews all article submissions during its quarterly meetings (January, April, July, and October). If an attorney would like to submit an article for consideration, please send a draft or outline to Patti Van Slyke, Journal Editor at editor@ksbar.org.

Ryan Purcell, graphic designer, rpurcell@ksbar.org The Journal of the Kansas Bar Association (ISSN 0022-8486) is published monthly with combined issues for July/August and November/December for a total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., and at additional mailing offices. The Journal of the Kansas Bar Association is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806; Phone: (785) 234-5696; Fax: (785) 234-3813. Member subscription is $25 a year, which is included in annual dues. Nonmember subscription rate is $45 a year.

The Kansas Bar Association and the members of the Board of Editors assume no responsibility for any opinion or statement of fact in the substantive legal articles published in The Journal of the Kansas Bar Association.

Copyright Š 2017 Kansas Bar Association, Topeka, Kan. For display advertising information contact Patti Van Slyke at (785) 234-5696 or email editor@ksbar.org.

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Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise indicated.

POSTMASTER: Send address changes to The Journal of the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806.

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Let your VOICE be 2017-18 Heard!

KBA Officers & Board of Governors President Gregory P. Goheen, ggoheen@mvplaw.com President-elect Bruce W. Kent, bruce.w.kent@gmail.com Vice President Mira Mdivani, mmdivani@uslegalimmigration.com Secretary-Treasurer Charles E. Branson, cbranson@douglas-county.com Immediate Past President Steve N. Six, six@stuevesiegel.com Young Lawyers Section President Clayton Kerbs, ckerbs@kerbslaw.com District 1 Toby J. Crouse, tcrouse@foulston.com Christi L. Bright, christi@thebrightfamilylawcenter.com Diana Toman, tomand@compassminerals.com District 2 Sarah E. Warner, sarah.warner@trqlaw.com Hon. Sally D. Pokorny, spokorny@douglas-county.com District 3 Angela M. Meyer, Angela-meyer@att.net District 4 Brian L. Williams, bwilliams.lawoffice@gmail.com District 5 Cheryl L. Whelan, cheryl.whelan@ag.ks.gov Vincent Cox, vcox@cavlem.com District 6 Tish S. Morrical, tish.morrical@hamptonlaw.com District 7 Gary L. Ayers, gayers@foulston.com Sylvia B. Penner, spenner@fleeson.com Hon. Jeffrey E. Goering, jgoering@dc18.org District 8 Gaye B. Tibbets, tibbets@hitefanning.com District 9 Aaron L. Kite, aaron@rbr3.com District 10 Gregory A. Schwartz, greg@splaw.legal District 11 Mark Dupree, Mark.lawdupree@gmail.com District 12 Bruce A. Ney, bruce.ney@att.com Nancy Gonzalez, nancy.gonzalez@ssa.gov Alexander P. Aguilera, alex@sbhlaw.com At-Large Governor vacant KDJA Representative Hon. Michael F. Powers, mpowers@8thjd.com KBA Delegate to ABA Rachael K. Pirner, rkpirner@twgfirm.com Hon. Christel E. Marquardt, christel.marquardt@yahoo.com ABA State Delegate Linda S. Parks, parks@hitefanning.com ABA YLD Delegate Joslyn Kusiak, jkusiak@kellykusiaklaw.com Executive Director Jordan Yochim, jeyochim@ksbar.org

Our Mission The Kansas Bar Association is dedicated to advancing the professionalism and legal skills of lawyers, providing services to its members, serving the community through advocacy of public policy issues, encouraging public understanding of the law, and promoting the effective administration of our system of justice.

www.ksbar.org | July/August 2017 5

kba president

To know where we are going, we must know where we have been.

H

umbled, excited, grateful—words that come to mind as I reflect on the beginning of my term as president of the Kansas Bar Association. It seems appropriate somehow that this year's annual meeting was held in the city of my birth and a place that remains dear to my heart, Manhattan, Kan. My time in office will end, with equal appropriateness, at the annual meeting next summer in Kansas City where I now live and have practiced law for the past 24 years.

I will reach two personal milestones of a sort during the coming year—my 50th year of life and my 25th year as a member of the Kansas Bar. Both seem significant, yet pale in comparison to the years of dedicated service given to our profession by lawyers like John J. Jurcyk, Jr., who was recently honored for 60 years as a member of the Bar. To put that in perspective, his 60-year career spans nearly half of the Kansas Bar Association's 135 years of existence. I owe "Big John," as he is affectionately known by the attorneys in our office, and his son, John David Jurcyk, both of whom served as presidents of the Kansas Bar Foundation, a debt of gratitude for encouraging me to become an active participant in the Bar Association.

I perhaps owe Big John a greater debt for years ago hiring my father, James Goheen, as his law partner in a firm that has always valued the practice of law as a profession. For those of you who knew my father, he was incredibly proud to be a lawyer and absolutely loved the practice of law. Big John is quick to remind me that I am apparently the third attorney from our law firm, McAnany, Van Cleave & Phillips, P.A., to serve as president of the Kansas Bar Association following E.S. McAnany and Tom Van Cleave, Sr. These individuals and others instilled a culture in our firm where being a lawyer carried a responsibility and obligation beyond the workplace.

I know from my relationships and interactions with many of you that this culture exists beyond the confines of my firm and is what makes the practice of law in the state of Kansas such a noble and rewarding experience.

The Kansas Bar Association is, in many ways, the thread that binds us together as colleagues, socially, intellectually and professionally. There are and always have been challenges to the practice of law. As most of you know, the Association was founded as a voluntary bar in 1882 and is dedicated to: • advancing the professionalism and legal skills of lawyers, • promoting the interests of the legal profession,

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• p r o v i d i n g services to its members, • a d v o c a t i n g positions on law-related issues, • e n c o u r a g i n g p u b l i c understanding of the law, and • p r o m o t i n g the effective administration of our system of justice The history of the KBA demonstrates that many of the problems facing our Gregory P. Goheen legal system are not 2017-2018 KBA President new and are issues the Kansas Bar Association has worked on since its inception. According to records from the Kansas State Historical Society, the first issue which the newly formed Association addressed concerned the Kansas Supreme Court’s overburdened docket.

The Kansas Bar Association lobbied for nearly two decades for an amendment to the state constitution to alleviate this concern by increasing the membership of the Court from three to seven. Members of the Kansas Bar Association have worked tirelessly over the years to make the practice of law better for attorneys and the clients they serve. Conscious of its reputation with the public, the Kansas Bar Association established a committee in 1907 to create its first code of ethics and established a Public Relations Committee in 1949. Over time, the association has addressed numerous external matters related to the legislative and judicial environment, public relations, social issues and the process and standards by which lawyers are admitted to the bar. However, at its core, the Kansas Bar Association remains an organization dedicated to its members and providing them assistance to build and maintain healthy, successful law practices.

Records from the Historical Society note that “[b]ecause many lawyers are self-employed with their own private

kba president

practices, many lawyers are concerned with such things as providing [for] themselves and their employees.” These types of concerns have not changed and remain the type of issues that the association continues to work on for its members.

During the past year, a new Strategic Plan was developed and adopted which focuses on providing better service to our members and assisting them with their careers.

As we deal with changes to the profession, I hope that benefits such as...

• the Economics of Law Practice Survey • the Law Office Management Assistance Program • Casemaker • Find an Attorney • the Career Center • Legislative Advocacy • LawWise • the Lawyer Assistance Program • Continuing Legal Education • the Annual Survey of Law and • other print and online publications and services... provide value and welcome suggestions for other ways in which the Association can help make the practice of law better for each of you.

It takes a great deal of time, talent and dedication to run a primarily volunteer organization, and I cannot in this small space thank everyone who has worked on a committee or helped run a section or otherwise volunteered time to the

Kansas Bar Association this past year. However, I would be remiss if I did not take time to recognize and thank outgoing President Steve Six who has devoted countless hours to the Kansas Bar Association over the course of his illustrious legal career. Steve has guided the bar this past year with a steady hand and is the consummate professional. I look forward to his continued, thoughtful guidance in the coming year.

Finally, I want to thank each of you for entrusting me with the honor of serving as president this coming year. It is a daunting task to inspire, lead, represent and motivate members of the legal community most of whom are far more talented and accomplished than I could ever hope to be. But I have a passion for this Association, and I am proud to be a lawyer and your colleague. I look forward to serving as your president this coming year and hope that you will join me in continuing to make the practice of law in the state of Kansas great. n About the Author Gregory P. Goheen is a shareholder at McAnany, Van Cleave & Phillips, P.A., where he has practiced since graduating from Southern Methodist University’s Dedman School of Law in 1993. He received his bachelor’s degree in 1990 from the University of Kansas. Greg is past President of the Kansas Association of School Attorneys and Fellow and past Trustee of the Kansas Bar Foundation.

www.ksbar.org | July/August 2017 7

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erving in the Kansas Legislature is undoubtedly the best use I have ever made of my legal education. Representing clients is a worthwhile avocation, filled with challenges, times of great success and fulfillment, and moments of stress, frustration and despair. For me at least, none compare with going to work every day between January and May in the State Capitol. As lawyers, we often hear “bad facts make bad law.” As a lawyer-legislator, bad facts help create good law. Whether it’s a tax plan that favors some over others, a safety inspection law that looks like Swiss cheese, or a criminal statute that fails to completely expunge arrests of innocent citizens, the lawyer in the legislature can accomplish perhaps more in six months than the lawyer could accomplish in a lifetime of arguing cases in the appellate courts.

There are downsides to legislative service. Aside from the pay, living out of a suitcase for four to six months a year is not fun. Trying to “make rain” while not in the office to take phone calls is difficult. Calling friends, neighbors, family and other lawyers asking for money is distasteful. Saying stupid things in moments of frustration that are then quoted in the newspaper is not pleasant. Making occasional bad decisions with serious consequences is depressing.

Notwithstanding the downsides, it’s a great legal job. The House Judiciary Committee is the best law firm of which I’ve ever been a member. The boss, Chairman Blaine Finch, encourages discussion, dissent, and guides the committee in its work much like a managing partner. We have experienced lawyers, as well as retired judges and lay magistrate judges, with a wealth and diversity of experience. Our staff, from the Revisor of Statutes and Legislative Research, are motivated, dedicated lawyers of great skill. We hold hearings virtually every day.

The witnesses are experts in their fields, often with differing opinions. The members cross-examine witnesses much like a trial and then, much like the transactional lawyer, we try to

find consensus and produce the best legal product we possibly can, given the time available. When bills reach the floor, a lawyer-legislator can give an opening statement, or closing argument, almost every day.

Perhaps the best part of the experience is that everyone working in the Capitol—legislators, staff, lobbyists, the press, and yes even the governor—is there because they want to make Kansas a better place. No matter the party or political philosophy, it is a collegial atmosphere of dedicated people working towards a common objective.

While every legislator should not be a lawyer, and legislators from diverse backgrounds make for better legislation, the fact is there are no lawyers in the Kansas Senate. The Kansas House does not have enough lawyer members to serve on every committee; and frankly, the more lawyers who join us, the easier the work becomes for those of us already there.

Please ask yourself, “If not me, who?” Our profession needs you in the legislature. But more importantly, Kansas needs you in the Capitol. n About the Author Kansas State Representative John Carmichael received undergraduate degrees from the University of Kansas and Wichita State University and graduated from the University of Kansas School of Law in 1982. He has been a member of the Kansas House of Representatives since 2013 and serves as the Ranking Member of the House Judiciary Committee and the Joint Committee on Rules and Regulations. He is of Counsel to the Wichita firm of Conlee, Schmidt and Emerson, LLC. john.carmichael@house.ks.gov www.ksbar.org | July/August 2017 9

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a nostalgic touch

Reflections on Vietnam and the West Point Class of 1966

A

rriving this fall to PBS is Ken Burns’ long-awaited mini-series “Vietnam.” Ten years in the making, it will feature ten episodes and 18 hours of storytelling.

The PBS website notes that Burns promises the film “will be accompanied by an unprecedented outreach and public engagement program, providing opportunities for communities to participate in a national conversation about what happened during the Vietnam War, what went wrong and what lessons are to be learned.”

Burns' documentary follows another terrific biopic released two years ago – “The Last Days of Vietnam” directed by acclaimed documentarian Rory Kennedy. Nominated for an Academy Award in 2014, Kennedy’s story depicts the final days of Vietnam through the eyes of the last Marines to depart the United States Embassy. If you’ve not seen it, I highly recommend you do.

In the larger literary library on the subject of Vietnam, there are many epic works. Tim O’Brien’s collection of short stories “The Things They Carried” is now found on many high school reading lists. My first book about that war remains with me – “We Were Soldiers Once… And Young” – a 1992 book by Lt. Gen. Harold G. Moore (Ret.) and war journalist Joseph L. Galloway about an early battle for the Da Nang valley.

But it was Rick Atkinson’s book “The Long Gray Line” which won the Pulitzer Prize and brought a granular look to the men whose lives were forever changed by Vietnam.

Atkinson follows the trajectory of the West Point Class of 1966 from their indoctrination as plebes to their training, graduation and service in the Army. There were 579 in the class; most ended up in Vietnam.

And if you, like me, were unaware of Atkinson’s work, the historical significance of the class of 1966, and the sacrifices they made, all that is about to change.

So put the billing clock on hold for 15 minutes because what follows will, if nothing else, serve as a teaser for the upcoming Burns documentary.

Atkinson’s work

Atkinson’s book can be considered to be in four parts. Part one describes what life was like for a plebe at the Academy.

This represents about one hundred and fifty pages of his book.

It would be only a modest overstatement to conclude that to be a plebe at the academy in the fall of 1961 was accepting a year of constant harassment. It would be absolutely no exaggeration to say the first year West Point experience was rigorous in the extreme. Parts two and three describe the preparation and then immersion of those young men into Southeast Asia, their struggles, their bravery, their successes and failures.

The final part describes their return and dealings with a country decidedly antagonistic to those who served our country.

In this month’s article, I’m profiling three members of that iconic class of 1966 – Norm Fretwell, Bill Poole, and Buck Thompson.

Fretwell, is a Joplin, Mo., native; after his years of service, he attended Michigan Law school and has enjoyed a successful practice in Kansas City, Mo. Poole, originally from Montana, moved to Atlanta in grade school, was an all-star athlete and declined a scholarship offer from Notre Dame in order to attend West Point. Like Fretwell, after his service, he attended law school at University of Georgia and remains a prominent international attorney in the Southeast.

Thompson, born and raised in Atchison, is extensively profiled in Atkinson’s book; he proudly introduced his classmates to a fictional bird we know as the Jayhawk. He was one of a thousand U.S. troops from the 4th Division and 173rd Airborne Brigade who were part of the Dak To battles.

This battle climaxed in November 1967, and for our country, Thompson gave the ultimate sacrifice.

These are their stories.

Norm Fretwell

Norm Fretwell plays a significant part in Atkinson’s story telling. He and the author met many times and remain friends.

Fretwell is a Kansas City attorney specializing in commercial transactions. He has practiced at Spencer Fane LLP for more www.ksbar.org | July/August 2017 11

a nostalgic touch

than twenty years. Following his career in the military, he attended Michigan law school, and graduated in 1973. He has been listed in Best Lawyers in America for many years, and in 2017, was named Lawyer of the Year in Kansas City for Banking and Finance by Best Lawyers.

Atkinson introduces his readers to Fretwell on page 118 in describing how the class selected its leader for their final year at the Academy, 1966: "The selection of the brigade commander, the so-called "first captain", is made every summer by the commandant of the Academy and his regimental tactical officers. They select one cadet in the rising senior class who most embodies the ideals of the long gray line. That choice was Fretwell, by a margin of one vote over a rival classmate, Norm Fretwell Sam Champi, Jr." Atkinson describes Fretwell as “the son of a laundry truck driver from Joplin, Mo. …[he] had the square-jawed looks and fullback’s carriage considered vital in a first captain. A good student, with exceptional ratings in military aptitude, he was popular with the cadets, who admired his fundamental decency.”

With his selection as brigade commander, Fretwell joined a few other names perhaps you’ve heard before: Douglas MacArthur, William Westmoreland, former Army Chief of Staff and NATO Commander Bernard Rogers and Pete Dawkins, who also won the 1958 Heisman trophy as a halfback.

But one story Atkinson’s tome doesn’t share is how Fretwell came to aspire to an institution as lofty as West Point. All that came when, as a Boy Scout, he and several other scouts from across the country were selected to present the annual report for the Boy Scouts of America to President Kennedy in the Oval Office. “In connection with this trip there was a side trip to West Point during which I met the then-Superintendent, General Westmoreland” Fretwell recently shared.

“I subsequently had lunch at the Capitol with my Congressman, Durward Hall. He asked if I was interested in attending the Academy, and I responded that I was interested but not sure. The following year I received the Elk’s National Youth Leadership Award which was presented by Vice President Johnson, after which my Congressman again took me to lunch at the Capitol and again asked if I wanted to go to the Academy. By this time, I had made up my mind to try to attend the Academy and so informed my Congressman who said he would give me an appointment.”

Fretwell remains a central part in Atkinson’s book, and fol12

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lowed him to Army Ranger school, where, as the author notes “Ranger training was the first hurdle in the Army, and it would fell nearly a third of them in under six months.” Fretwell, needless to say, was not among those who failed there.

“Upon graduation from the Academy, I elected to become an Infantry Officer following in the tradition of former First Captains. After graduation I attended Airborne School to become a Paratrooper and following Airborne School spent nine weeks in Ranger School to become a Ranger. I was then assigned to the 101st Airborne Division as an Infantry Platoon Leader and stationed at Ft. Campbell Kentucky for a few months before being sent to command an Infantry Platoon in the 101st Airborne Division in Vietnam, which I did for almost a year, conducting search and destroy missions in the jungle.”

Fretwell was awarded, among other distinctions, the Bronze Star for heroism in ground combat in Vietnam, and completed his military service with the Army as the senior aide de camp for the Commanding General of the American Section in Berlin, Germany.

“The characteristics developed at the Academy have empowered not only me and my classmates, but all graduates from West Point, to always do the best they can in any endeavor in which they are involved, to look forward, not backward, and to always have a never-quit attitude.”

Fretwell is married to Beverly Haskins, a former public relations executive. Fretwell’s daughter is a mortgage banker with Commerce Bank in Kansas City, and his stepson is an environmental scientist in Missoula, Mont.

William Poole

Also in that class was one Bill Poole, who like Norm, spent one tour in Vietnam, and also like Fretwell, returned to law school and is now a successful attorney in Atlanta. He was the genesis for this article, as he is married to my wife’s first cousin, Barbara McCusker Poole. Bill’s path crossed with mine at a family reunion in Tybee Island, Ga., July 2016, and over a couple of beers this column sprang to life.

Poole was born in Cheyenne, Wyo., and later, at age seven, relocated to Atlanta, his father's home town. He was Captain of the "Hos" (L) and Bill Poole (R) football team, President of the Senior Class and a National Merit Scholar in high school. He declined football and academic scholarships to Notre Dame to instead attend West Point. “I was from a poor family and needed a scholarship. I had done well in academics and athletics, and I thought West Point would be a greater challenge.”

Along the way he came to know Barbara McCusker who was the Homecoming Queen in high school.

“Barb and I were high school sweet-

a nostalgic touch

hearts, started dating at the beginning of our junior year. We dated for about six years. We saw each other about 30 days total during college and were married on July 9, 1966, one month after graduation. My best man was my roommate at West Point, a guy named John Hoskins.”

Poole, like Fretwell, also chose the Infantry branch, attended Airborne and Ranger schools at Fort Benning, Ga., and then was a platoon leader, company commander and aide de camp to the commanding general of Berlin, Germany, for his first assignment. In January 1968, Poole received orders for Vietnam where he was assigned to the Military Assistance Command Vietnam (MACV), to serve as part of General Westmoreland's campaign to "win the hearts and minds" of the South Vietnamese people. This required, among other things, a deep dive into learning Vietnamese.

From June 1968 until July 1969, he served in the Mekong Delta, where he advised the local leaders in establishing democratic local elections. His duties also included advising the local militia and ARVN troops, often in combat.

The Mekong Delta, at the southernmost tip of Vietnam, is known for its flat flood plains and the role of swift boats patrolling its many tributaries.

Poole was 24 years old when he left his wife and young daughter behind. In Vietnam, he “spent a lot of time writing letters and sending tapes home to my wife and getting letters and tapes from her and seeing videos. I watched my daughter, who was eight months old when I left, grow up. We tried to do our job while we were there, just hoping to survive long enough to get home to our families.”

The Academy experience forged lasting friendships among the classmates. For Poole, the friend he made for life was a Cajun named John Hoskins – aka “Hos.” “Hos was very typical of the kind of person who was in our class.” Hoskins was from Sulphur, La., which, for the geographically challenged, is between Lafayette and Beaumont along Interstate 10. “Hos was an English scholar (#1 in our class in English)/poet/athlete (corps boxing champion).” When Bill Poole and Barbara married, Hoskins was Bill’s best man.

Hoskins was one of the first graduates allowed to go to Vietnam for their first tour. He was an infantry company commander in the delta. After serving in Vietnam for a year, he decided to extend his assignment for another tour. Poole explains: “Hos wrote to me and said by extending his tour, he could keep some guy like me with a wife and a kid from coming over.”

On May 6, 1968, during the second month of his second tour, he was assigned to an "Air Boat Platoon" as Company Commander of E/3-60 Infantry. Their unit was on a routine search and destroy mission down in the Mekong Delta when his unit was ambushed, and Hoskins was killed.

Poole ended his active duty service in 1970 and enrolled in Law School at the University of Georgia. “I met Secretary Dean Rusk on my first day of law school and asked him to mentor me. He did, and when I graduated, he offered me an LLM in International law and an appointment to the Law of

the Sea UN Committee. He also arranged a meeting for me with the only lawyer in Atlanta at that time with an international business practice.”

This lead to a successful career in international business transactions and international tax law.

For the last nine years, he has co-chaired the international practice of the AMLAW 100 firm, Nelson Mullins Riley & Scarborough, in its Atlanta office. Poole was recently the recipient of the Global Leadership Award from the World Trade Center Atlanta.

Buck Thompson

Atkinson introduces his readers to Buck Thompson when Buck was sipping from a bottle of scotch in the West Point barracks, not exactly the conduct embraced by the Army brass. Thompson is described this way: “Fair skinned, with thinning, ashblond hair, he had a chest that seemed built from barrel staves.

He was All Kansas in football, second in the state in discus and shot put, and third in his class academically. He rejected appointments at West Point and Annapolis to play football at KU. At KU, he pledged Sigma Chi and became an instant legend. “Once—as he later told his academy classmates—Buck picked up his date at a sorority house and took her to the state penitentiary at Lansing, where he had passes to a hanging.”

Buck transferred to Benedictine College; there he joined the Army reserve and earned a second appointment to West Point. Along the way he met Fran Urstadt who was a student at nearby Ladycliff College. They were married on June 11, 1966, just after his graduation. They had a son, Richard William II, born eleven months later, May 12, 1967. The next month, in June, he arrived in Vietnam. And in the fall, Buck was a part of a major battle that historians are still studying today.

It was November, 1967, when he found himself at Dak To. This was a strategic area of central Vietnam along the border of Cambodia. It has been the subject of several books, including "Dak To: America’s Sky Soldiers in South Vietnam’s Central Highlands" by Edward Murphy. This was part of a strategy that General Westmoreland crafted, something called the “hill fights.”

The New York Times, in a recent story entitled “David and Goliath in Vietnam” paints the picture of what the war represented in 1967 this way: “The most gruesome occurred in late November 1967 near the outpost of Dak To in northern Kontum Province in the Central Highlands. It became known as “Hill 875,” after the military practice of naming a battleground for its height in meters.”

“The 173rd Airborne Brigade was dispatched to Dak To, along with battalions of the Fourth Infantry Division under Maj. Gen. William R. Peers, a respected officer.”

Buck was part of the 173rd. www.ksbar.org | July/August 2017 13

Weary Davis, LC 20 17

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AT T ORNE Y S AT LAW E S TA B L I S H E D

1917

Observing 100 years of service.

To l e a r n m o re a b o u t t h e F ir m a n d it s a t t o r n e ys v i s i t o u r w e b sit e a t w w w. w e a r yd a vis. co m .

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Congratulations to our colleague Steve Six for his leadership as KBA President.

Kansas City. San Diego. New York www.stuevesiegel.com 816.714.7100

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a nostalgic touch

The operations began ramping up in November, culminating on Thanksgiving Day, Nov. 24. The goal for the U.S. military was to prevent the Vietcong from escaping. If they did, they could enter Cambodia where the US military was not to pursue. As the Times notes: “Turns out that at strategic locations of Hill 875, the Vietcong had an intricate series of tunnels and fortifications, hidden below a thick layer of trees and vegetation.”

Historical reports note the unforgiving landscape of the central highlands. "Vietnam Magazine" notes “the sharp ridges are covered with double and sometimes triple-canopy jungle.

The draws between the ridges are dreary, tangled and places of perpetual twilight. The jungle is laced with vines and thorns, and in it live diverse snakes, a million leeches and about half the mosquitoes in the world.”

The fighting was fierce, and Buck had suffered three different wounds. From the “Long Grey Line”: “Wounded by small arms fire during the morning assault, he was shot a second time while sprinting between the squads of his platoon, shouting encouragement to the paratroopers. Both times he waved away the medic who tried to help him.”

VFW Magazine in March 2006 did an extensive report on this battle. “There is something gut-wrenching about severely wounded men that I will never forget,” recalled Earle Jackson, a 173rd medic who served on Hill 875. “It is that most become delirious and almost always cry out for their mothers.”

Buck likely would have survived his injuries. But any prospect for a recovery vanished when a Marine Corps fighter bomber dropped two 500 pound bombs on the hill. But both

V I E T N A M

were misdirected and hit the U.S. troops. Forty-two Americans were killed and 45 wounded. This was the worst “friendly fire” incident from the Vietnam war. Buck died on Nov. 19, 1967.

Thompson was posthumously awarded a Purple Heart, Silver Star, and service medals.

On Nov. 28, 1967, there was a service for Buck at St. Benedict’s Abbey in Atchison, Kan. Richard W. "Buck" More than 500 locals were in atThompson tendance. A "Buck Thompson Scholarship Fund Memorializing Vietnam Veterans" has been established at St. Benedict's College.”

Conclusion

These days it seems hard to imagine a time like 1966, where the best and brightest were commissioned and sent halfway across the world to fight a war, the purpose and strategic underpinnings of which were tragically flawed. Those young men who answered the call returned to a deeply divided country that treated those veterans terribly.

And perhaps Burns' special, and books like Atkinson’s, can serve to remind us of the unselfish devotion of a segment of our fellow Americans. And now, we can tell them what they rarely heard back then – thank you. n

About the Author Matthew Keenan has practiced with Shook, Hardy & Bacon LLP, Kansas City, Mo., since 1985. mkeenan@shb.com

www.ksbar.org | July/August 2017 15

2017 Outstanding IOLTA Banks Central National Bank is recognized as an Outstanding IOLTA Partner for 2017. With branches from Hays to Kansas City, Central National Bank helps meet the needs of Kansas attorneys by providing IOLTA trust accounts. https://centralnational.com/

Central Bank of the Midwest is recognized as an Outstanding IOLTA Partner for 2017. With branches in central and eastern Kansas, Central Bank of the Midwest helps meet the needs of Kansas attorneys by providing IOLTA trust accounts. https:// www.centralbank.net/Central-Bank-of-the-Midwest/

Each year, the Kansas Bar Foundation selects two banks to recognize for their participation in IOLTA. This year, in appreciation for their commitment to IOLTA, Central National Bank and Central Bank of the Midwest received gift cards to have a pizza party for staff. The KBF sincerely appreciates the time staff devote to make the IOLTA program successful. Thank you and congratulations!

Since 1984, Kansas attorneys and bankers have been collaborating to provide access to justice and law related education to Kansans through the IOLTA program. Learn more about IOLTA at http://www.ksbar.org/mpage/iolta.

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LAWYERS’ PROFESSIONAL LIABILITY INSURANCE COURT BONDS BUSINESS OWNER’S POLICY WORKERS’ COMPENSATION RISK MANAGEMENT SERVICES

law practice management tips and tricks

Quick Tips and Tricks

I

t is summertime in Kansas, and the temperatures hang out at near the triple-digits. We often take our meals light and simple this time of year, and I am inclined to do the same with the Law Practice Management Tips and Tricks. Here are a few quick bites with links out to some items or issues of note: Airtable (airtable.com) – Setting up a database from scratch is a daunting task most amateurs are not trained to tackle. Airtable eases the learning curve with simplified tools and valuable templates. Lawyers will want to look at the Legal Case Analysis template in particular. This preconfigured database provides a clean, tabbed interface to all the relevant data in a case. Search, sort, and report on facts, parties, witnesses, evidence, authorities, and tasks. Similar tools have been available from those high-end legal vendors, but Airtable can duplicate many of the features of case analysis software for as little as $0.00 per month.

LegalBoard (legalkeyboards.com) – It might be hard to imagine why a lawyer would need a legal-specific keyboard – until you go searching for the § symbol. The LegalBoard includes a handy § key as well as one-key access to bold, underline, small caps, footnotes, and more. Word gurus can certainly create their own macros to enable a mere mortal’s keyboard to duplicate LegalBoard’s features but those macros can often be lost or changed when working in a networked environment or after updates. At just $75.00, the LegalBoard is a bit pricier than a generic model from the office store, but the convenience pays for itself within a few briefs. The LegalBoard is safe for non-attorneys as well with a toggle feature to switch it to an ordinary keyboard.

Signal (whispersystems.com) – Leaks are becoming the foremost feature of the current President’s administration, and many of those leakers communicate securely with the press using the Signal app from Open Whisper Systems. The free app is available for both Android and iOS and allows users a secure, encrypted means of communicating by text message.

Interception and decryption—even by a state actor—appears to be virtually impossible. Most importantly, the app’s purveyor has no access to messages, so subpoenas produce nothing.

You may not be leaking the TV viewing habits of the 45th, but lawyers and clients often need to communicate quickly and securely. Signal is the right tool for the job.

Mandatory Technology CLE – Kansas adopted a version of the ABA’s Ethics 20/20 rules way back in 2013. Among other requirements, the changes to the Kansas Rules of Professional Conduct suggest lawyers should “…keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology….” (KRPC 1.1,

Comment 8). Part of Kansas’ response has been to allow optional Law Practice Management programming for up to two hours of CLE per reporting period. Florida decided to act more decisively recently by mandating three additional hours of technology training per three year reporting period. This is in addition to the baseline CLE requirements. These requirements cause much wailing from the bar but might actually prepare us better for the technology audits rolling out from clients. The Florida rule is available by searching for SC16574, and learn more about technology knowledge audits at techassessment.legal.

Data Breaches (haveibeenpwned.com) – Online data breaches happen with unalarming regularity. As I write this, details are emerging about a contractor to the Republican National Committee leaving almost 200 million voter records on an unsecured server. Other breaches can expose our bank accounts, credit cards, and confidential records. One small tool for evaluating whether any account linked to your email has been exposed in a reported breach is available at haveibeenpwned.com. Simply type in all your email accounts, and it will generate a list of breaches impacting your accounts. It would be wise to change passwords at any impacted site, enable two-factor authentication, and review what accounts and information might have been exposed.

Data Disposal (Wayne Owen Act, K.S.A. 50-6,139 et seq.) – Becoming the victim of a data breach is no fun but causing a breach should be no picnic. The Kansas Attorney General worked with state and national businesses in 2016 to significantly strengthen data disposal laws. The ink was barely dry on the bill when it was brought to bear against a national service company’s Topeka office. The suit against the company alleged it was disposing of sensitive documents in a publicly accessible recycling bin at the post office. The suit seeks civil penalties of $10,000 per violation and names both the company and the individual employees responsible for the dumping. The case is ongoing but is a clear reminder to shred, shred, shred. I am partial to local people like Stacks (www.stacks.solutions) but any company you choose should be AAA certified by the National Association for Information Destruction (NAID). NAID will even send you email notices advising when your vendor passes audits. n About the Author Larry N. Zimmerman is a partner at Zimmerman & Zimmerman P.A. in Topeka and former adjunct professor, teaching law and technology at Washburn University School of Law. He is one of the founding members of the KBA Law Practice Management Committee. kslpm@larryzimmerman.com www.ksbar.org | July/August 2017 17

2017 president's cup golf tournament results

2017 KBA President’s Cup Golf Tournament • Results Manhattan Country Club Championship Flight 1st Place Mark Andersen William J. Bahr Terrence J. Campbell Anthony F. Rupp 2nd place Jason V. Darland Scott Johnson Joshua W. Skiles John Paul D. Washburn

Second Flight 1st Place Clayton I. Kerbs Mark W. Knackendoffel 2nd Place Craig Fox Joseph Molina Cheryl Whelan

Proximity Prizes Closest to the Pin Terrence J. Campbell Richard L. Honeyman Rod Iverson Clayton I. Kerbs Sponsored by Gilliland & Hayes, LLC Longest Drive James P. Rankin Anne Timi Longest Putt Angela M. Meyer Sponsored by Triplett Woolf Garretson, LLC & Hite Fanning, Honeyman LLP Straightest Drive Kelly J. Rundell 18

The Journal of the Kansas Bar Association

Hole and/or Prize Sponsors Central National Bank-Manhattan Matt Kennan-Golf Legacy Hole Dru and Bill Sampson Sara Beezley-Beezley Law, LLC Firekeeper Golf Course Hilton Garden Inn ALPS The Bar Plan Shamberg, Johnson & Bergman KBA Bookstore Liquid Art Winery & Estate Cheryl Whelan & Craig Fox

Hole in One

Sponsored by Appino & Biggs Reporting Service, Inc.

Lunch

Sponsored by Shamberg, Johnson & Bergman

2017 KBA President’s Cup Golf Committee Members

Bill Sampson, Chair Sara Beezley Cheryl Whelan with KBA Staff Joe Molina • Ken Waugh • Anne Woods • Jessica Evans

Golf Tournament Volunteer

Tim Faulhaber, Appino & Biggs Reporting Service, Inc.

Special thanks to Scott Wempe, Head Golf Professional and his staff at the Manhattan Country Club!

yls president

Ready. Set. Go.

T

he 2017-2018 KBA Young Lawyers Section is off to a fast start. Beginning last year, the decision was made to hold the board’s first meeting at the KBA Annual Meeting, even though the Annual Meeting is held prior the July 1 starting date for board terms. Meeting at the Annual Meeting provides multiple benefits. First, we as a board are getting a head start on the year, which inevitably will go quickly. Second, we are supporting the KBA Annual Meeting.

If you made the wise decision to attend the Annual Meeting, you will undoubtedly agree with me that the 2017 edition of the Annual Meeting was terrific. Finally, assembling at the Annual Meeting provides young lawyers exposure to the KBA, experienced lawyers and judges.

In future columns, I will discuss the activities and purpose of the KBA YLS. But, without further delay, here is your 2017-2018 YLS Board:

President: Clayton Kerbs

Clayton was born and raised in Dodge City, and currently practices in Dodge City with his father, Glenn. Clayton’s practice consists of domestic and municipal law cases. He attended Creighton University for undergraduate and Washburn University School of Law. Prior to practicing law, Clayton worked for U.S. Senator Jerry Moran. Clayton is married to Leah; they have one son, Porter, five, and a second son, Chandler, due the day this Journal is set to be distributed.

President-Elect: Sarah Morse

Sarah is an associate attorney with Goodell, Stratton, Edmonds Palmer, LLP, in Topeka, Kan. Sarah's practice focuses on civil litigation, medical malpractice defense, employment law and litigation, administrative law, and professional licensing and disciplinary actions, A graduate of Emory University School of Law in Atlanta, Ga., Sarah was admitted to the Georgia Bar in 2011 and Kansas Bar in 2012. Sarah is active in the Kansas Bar Association, Topeka Bar Association, Kansas Women Attorneys Association, Topeka Women Attorneys Association, Sam A. Crow American Inn of Court, and Kansas Association of Defense Counsel. Sarah also volunteers with the Friends of

the Kaw and YWCA of Northeast Kansas. In her free time, (which is admittedly limited with a six-month old in the house) Sarah enjoys being active outside, cooking and baking, gardening, and designing projects to print on her early-20th century printing press.

Secretary-Treasurer: Mitch Biebighauser

Mitch graduated from the University of Missouri Kansas City Law School in June, 2014. Mitch has worked at Bath & Edmonds since being admitted to practice law in both Kansas and Missouri.

Mitch practices primarily criminal law, but also practices in collateral areas including forfeiture and administrative law. Mitch serves as vice chair of the Johnson County Bar Association Criminal Law Section. During law school, he worked with the Jackson County Missouri Public Defender’s Office and the United States Attorney’s Office for the Western District of Missouri. Before graduating he also worked at Bath and Edmonds as a law clerk. In law school, Mitch competed in ten national mock trial competitions and earned the Thomas Deacy Trial Lawyer’s Award. He co-founded the school’s first ever Board of Barristers and was the Research Editor for the Urban Lawyer Law Review. Mitch was on the 2015 Kansas Bar Association Annual Convention Planning Committee.

Pro Bono Liaison: John Paul Washburn

John Paul operates Washburn Law Office, LLC, and The Washburn Mediation Company, LLC. John Paul focuses his time representing both indigent parents and private clients in Child in Need of Care cases, representing litigants in family law disputes, and providing dispute resolution services in family law cases. Along with the work he does through the TBA, John Paul is an active member of the KBA, serving on the Family Law Section Executive Committee and the Young Lawyers Section Board. He is also proud to serve as President of the Board of Directors at University Child Development, Inc. and sits on the TFI VEC Advisory Committee. Recently, he was selected by the Jayhawk Area Council as one of Greater Topeka's Top 20 Under 40 professionals.

www.ksbar.org | July/August 2017 19

yls president (cont'd)

ABA Liaison: Rick Davis

Rick has a solo practice located in Overland Park that focuses on real estaterelated issues. Prior to opening his own firm, Rick helped form and was a partner in a thirty-attorney firm in South Florida.

In his free time, Rick enjoys volunteering with the youth ministry at his church and spending time with his wife and three children.

Newsletter Co-Editor: Megan Townsley

Megan was born and raised in Wichita, Kan. She attended the University of Kansas where she earned a Bachelor of Science in Journalism, with an emphasis in strategic communications. Megan then attended Washburn University School of Law where she was active with the Washburn Law Journal, Washburn Intellectual Property Law Society, and the International Law Society. In addition to serving as a Research Editor, Megan wrote a Note, "Is There Any Body Out There? A Call For A new Body of Law To Protect Individual Ownership Interests in Tissue Samples Used in Medical Research," which was published and received the John F. Kuether Memorial Faculty Award for "Best Note." Megan is now a practicing attorney in the Kansas City area.

Newsletter Co-Editor: Laura Boatright

Lauraleen “Laura� Boatright was a paralegal in Kansas and Missouri for 21 years prior to becoming an attorney. Laura graduated cum laude from Rockhurst University with a Bachelor of Arts degree in English and a paralegal certificate. While attending law school at Washburn, she served as a Student Editor to the American Bar Association Family Law Quarterly and Vice President/Interim President to the Business Law Society, and was a law clerk for the Washburn Law Clinic and Johnson County, Kansas, Help Center. Since being admitted to practice in Kansas, she has worked for a DCF Child Support Enforcement private contractor and also for Cordell & Cordell PC, where she is an Associate Attorney.

Social Chair: Shawn Yancy

Shawn is a 2011 graduate of Washburn University School of Law. At that time, Shawn clerked for the judges of the Third Judicial District Court. After passing the bar exam, Shawn began working as an Unemployment Insurance Appeals Referee for the Kansas Department of Labor, and after three years in that role, transitioned to his current position as Unemployment Insurance Performance and Reporting Manager. Shawn

20

The Journal of the Kansas Bar Association

actively participates in law related education programs including high school mock trial for which he is a member of the National High School Mock Trial Championship Board of Directors as well as judging for college and law school mock trial and volunteering with the Topeka & Shawnee County Youth Court.

Social Chair: Lauren Hughes

Lauren grew up in League City, Texas.

She received her Bachelor of Arts in both English and American Studies from the University of Kansas in 2013, graduating with highest distinction. She graduated from the University of Kansas School of Law in 2016. While at KU Law, Lauren served as a Staff Editor, Staff Articles Editor and on the Editorial Board of the Kansas Journal of Law & Public Policy.

Lauren joined the McPherson, Kan. law firm of Wise & Reber, L.C., in 2016. Lauren is admitted to the state and federal courts in the state of Kansas. Her primary area of practice is estate planning and administration. Lauren is an active member of the Kansas Bar Association and the McPherson County Bar Association. She also serves on the Board of Young Professionals of McPherson.

Mock Trial Liaison: Bill Walberg

Bill is a second year attorney at Evans & Mullinix, PA in Shawnee, Kan., practicing general litigation as well as corporate law and estate planning. Bill attended the University of Kansas for both undergraduate and law school. In between, Bill was a teacher with the Teach for America program in Kansas City, Mo. Bill continues to serve students as he enters into his second year as Mock Trial Co-Chair.

Mock Trial Liaison: Casey Walker

Casey has a litigation-focused practice based in Overland Park which takes her all over Kansas, Missouri, and often into many other states. Although engaging in a wide variety of litigation work, Casey's practice focuses on the defense of health care providers in malpractice actions as well as corporate health care law. Casey obtained her law degree from the University of Kansas School of Law, and remains an active alumna. Casey is originally from Hutchinson, Kan. Her spare time is spent enjoying community activities and being at home in Lenexa, Kan., with her husband and three dogs, Khan, Sam, and Q.

yls president (cont'd)

CLE Committee Liaison: Kurtis Wiard

Kurtis graduated from Washburn University School of Law, cum laude, in 2014. During law school, he served as the notes editor for Volume 53 of the Washburn Law Journal. Following graduation, Kurtis worked two years as a research attorney for Judge David Bruns of the Kansas Court of Appeals. He currently works as a research attorney for Justice Caleb Stegall of the Kansas Supreme Court.

Judicial Externship Coordinator: Kate Sampson

Kate lives in Lawrence and clerks for the Honorable Carlos Murguia of the United States District Court for the District of Kansas in Kansas City, Kan. She previously clerked for the Honorable K. Gary Sebelius also of the U.S. District Court in Topeka, Kan. Kate graduated from KU in 2011 with a BA in Germanic Languages and Literatures and from the University of Kansas Law School in 2014, where she served as the Symposium Editor of the Kansas Law Review.

Judicial Externship Coordinator: Joshua Decker

active member of the Topeka Young Lawyers Association, the Kansas Bar Association Tax Law Section, and the Kansas Bar Association Real Estate, Probate, and Trust Law Section.

In his free time, Josh loves spending time with his wife Emily, and two dogs, Jasper and Billy (after Mr. Self of course), avidly cheering for his favorite sports teams, and playing basketball and other sports at the gym. He also enjoys finding time to be actively involved in the community and mentoring youths as a Big Brother in the “Kansas Big Brothers Big Sisters” organization.

Legislative Liaison: Mike Dunbar

Mike was born in Winona, Minn., but grew up in Lawrence, where he attended Lawrence High School. He took some time off from school and worked for the Buffalo Wild Wings Corporation all through college until starting law school. Mike graduated from the University of Kansas with a B.G.S. in History, focusing his studies on the history of western conflict. After KU, Mike enrolled at Washburn University School of Law, and he graduated with Dean’s Honors. Mike worked at Ronald W. Nelson Law for one year before moving on to Veritas HHS in Kansas City, Kan., practicing in the arena of enforcing child support for the state of Kansas. He is currently engaged to his lovely fiancée, Kathryn, and they are getting married later this summer. n

Josh has been practicing law since 2012, and has spent his entire career at Coffman, DeFries, & Nothern P.A. in Topeka, Kan. He grew up in a small Kansas town in the southeastern part of the state. He attended the University of Kansas before graduating with his law degree from Washburn University School of Law. In addition to serving on the board of the Kansas Bar Association Young Lawyers division, Josh is currently an

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n a wide-reaching shift in criminal law, the 1992 Kansas Legislature folG LV XQ GHU \ HDUV RI lowed the lead of the federal DJH &ULPLQ DO 6RGR government and various states1 P\ . %X\LQJ 6 $ 6 D &RQYLF H[XDO 5HODWLR by enacting a determinate sen

QV WLRQ IRU HFWLRQ DQ\ FRP Âą . 6 $ tencing scheme: the Kansas Sen SDUDEOH RIIHQVH D MXYHQ

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tencing Guidelines Act (KSGA QGH RUG WKD W WKH DF U IRU DQ DFW Z or Act), K.S.A. 21-4701 et seq.2 KLFK LI W LQYROY P FRPPLW HG QRQ W HG E\ D IRUFLE The KSGA significantly limited OH Q VH[XD DGXOW &ULPLQD O FRQGX O 6 FW WKH the amount of discretion trial QGHFHQ RGRP\ Âą . 6 $ W 6

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court judges had previously pos & [S D RPPHUF ORLWDWLRQ RI D & KLOG Âą . 6 $

sessed when it came to sentencing

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6 DO J ,QFHV W Âą . 6 $ ([SORLWDWLRQ R $ convicted felons.3 Over the last 25 I D DZIXO 6

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years, statutory amendments to the HODWLRQV

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Q RI WKH KSGA and the criminal code, as well

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and state courts, have resulted in a conFW GLG Q R W LQYROYH Q 6 $ RQ IRUF

voluted bramble from what started as a LEOH VH[ F

XDO FRQ G comparatively straight-forward sentencX F W RI DQ\ R I WKH IROO RZLQJ F ing process.

After a quarter-century of 0XUGHU ULPHV

LQ 9ROXQWD WKH )LUVW 'HJ operation, with these innumerable and UH U\ .LGQDSS 0DQVODXJKWH H Âą . 6 $ U . 6 $ nearly annual changes, one might quesLQJ . 6

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tion whether the KSGA has managed to W . 6 $ [FHSW E \ S

carry out its original goals.

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YLFWLP L In evaluating the answer to that question, V OHVV W KDQ OLVWHG LQ WKLV VH this article will examine the events which FWLRQ led to the development and modification of '/< : ($321 the KSGA over the last 25 years. First, it will 2Q RU DIWHU -X O\ < :($ provide a brief overview of the framework of

321 the original KSGA. Second, it will discuss the H IROORZ LQJ FULP general nature of statutory adjustments made HV

since its enactment in the legislature's efforts D

to address public safety issues, constituent DQ\ VWLP XODQW LQ . 6 $ concerns, and budgetary constraints. Next,

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the article will review the impact of federal G

and state judicial opinions that have sent significant ripples throughout the sentencing

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process under KSGA. Finally, I will discuss whether the consistently amended KSGA has achieved the goals set forth when the KSGA was enacted.

The Historical Background In the late 1980's, the State of Kansas was faced with a crisis of high prison populations resulting in a federal lawsuit challenging prison overcrowding.4 As a result of these issues, the Kansas Legislature created the Kansas Sentencing Commission (Commission) in 1989.5 The legislature directed the Commission to propose criminal sentencing dispositions by suggesting appropriate sentencing ranges for felony convictions as well as recommending standards for delineating prison and non-prison placements. The Commission was directed to focus prison resources on violent offenders, to minimize sentencing disparityâ&#x20AC;&#x201D;especially those disparities based on race and geographyâ&#x20AC;&#x201D;and to make recommendations as to the future role of the Kansas Parole Board.6 Two years later, the Commission recommended that the Legislature adopt grid-based sentencing guidelines, noting the federal government as well as several other statesâ&#x20AC;&#x201D;specifically Minnesota, Washington and Californiaâ&#x20AC;&#x201D;had already established such sentencing designs. In addition, nearly 50 percent of the remaining states were in the process of evaluating this type of sentencing structure.7 The proposed guidelines constituted a significant paradigm-shift away from an indeterminate sentencing scheme with its purported rehabilitative focus; that scheme was based on the premise that indeterminate sentences would permit the parole board to make release dewww.ksbar.org | July/August 2017 23

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cisions on the inmate's conduct during incarceration, thereby encourage inmates to participate in rehabilitation and training programs and also to engage in positive conduct while in prison.8 The Commission's proposed guidelines intended to emphasize public safety while decreasing racial and geographic disparity in sentencing. The Commission's report contained a number of comparisons consistently showing statistically significant differences at all stages of the existing criminal process based upon race and geographical factors.9 The proposal was also designed to make sentencing practices understandable for the public and defendants.10 Finally, the determinative nature of the proposed sentences would allow more predictability, permitting the Commission and the Department of Corrections (DOC) to more accurately estimate future inmate population to guide DOC facility planning and to enable sensible sentencing adjustments.

After the Commission's recommendations were presented, the Kansas Legislature adopted the KSGA in 1992.11 The Act was designed to achieve a nearly wholesale revision of criminal sentencing in Kansas. First, the KSGA adopted two-dimensional grids creating presumptive sentences for most felony crimes in Kansas.12 Second, it rewrote the substantive criminal statutes, designating each crime as a person or nonperson crime and setting the severity level of most felony offenses.13 The legislature also rewrote probation and post-incarceration statutes to comport with the guidelines' new focus: requiring a felon to serve all or most of the determinate sentence imposed.14 Along with a few other modifications, the legislature limited the prior indeterminate sentencing statutes to crimes committed before July 1, 1993. The new sentencing standards did not take effect until a year after the enactment,15 giving the court system and correctional officers time to adopt procedures implementing the Act.

The Original Structure of the KSGA As broad as the KSGA coverage extends, not every crime falls within its scope. The most serious crimes which trigger life imprisonment sentencesâ&#x20AC;&#x201D;i.e., capital murder, firstdegree murder,16 terrorism,17 illegal use of weapons of mass destruction,18 and Jessica's Law sex crimes19â&#x20AC;&#x201D;are categorized as "off-grid" crimes. These offenses generally fall outside the terms of the KSGA statutes and will not be discussed in detail here. Similarly, lower level crimes such as misdemeanors and statutorily-independent crimes, such as driving under the influence of alcohol and/or drugs (DUI), have their own separate statutory sentencing schemes.20 Consequently, these crimes are classified as "non-grid" crimes.21 Again, convictions of these offenses do not fall within the scope of the KSGA and its various sentencing rules.

As to all "grid" felonies covered by the KSGA, the original structure of the guidelines strove to meet the Commission's and legislature's goals of predictability and fairness22 by establishing two key factors for a judge to use when determining a convicted defendant's sentence. The first factor is the severity level of the crime(s) of which the defendant was convicted.

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The Journal of the Kansas Bar Association

The second factor is the individual defendant's criminal history score. Using two-dimensional grids, one for drug crimes23 and one for non-drug crimes,24 the intersection of the crime severity level and the defendant's criminal history score on the grids gave the sentencing judge three presumed sentences which she could impose. These presumptive sentences allowed the judge some room to consider whether an aggravated, mitigated, or standard sentence was appropriate based on the facts of the individual case.25 In addition, both the drug and non-drug grids were divided to reflect which grid boxes carried presumptive prison versus non-prison sentences.26 The presumption for non-prison sentences in certain cases was an attempt to limit prison space for those convicted of the most serious and violent crimes and/or for serious repeat offenders. The original KSGA divided nondrug crimes into ranges from a severity level 1 (the most serious offenses) to severity level 10 (the least serious felonies). The non-drug grid also originally contained three "border boxes" for convictions for some severity level 5 and 6 crimes; for convictions falling within these boxes, the sentencing judge had the option to impose a non-prison sentence if she believed such a sentence would promote public safety and/or there was an appropriate treatment program to aid the defendant.27 The original version of the drug grid carried only 4 severity levels (levels 1 through 4). A level four drug offense included a first-time offense of most narcotics.28 Possession of opiates and narcotics after two prior convictions under the same or similar statute became a severity level one drug felony.29 There were no border boxes on the original non-drug grid.30 Based upon the Act, the determination of the presumptive range for sentencing was nearly a ministerial act. For example, a defendant convicted of the crime of aggravated assault occurring on July 3, 1993, would be guilty of a severity level 7 person felony.31 Assuming this defendant had two prior convictions for the same offense (i.e., two person felony convictions), his criminal history score would be "B."32 Based upon the non-drug sentencing grid in effect at the time of the crime, the sentencing judge could impose a presumptive sentence of 27 months (mitigated), 29 months (standard), or 31 months (aggravated) incarceration.33 The KSGA gave judges the ability to grant departure sentences altering either the length of the sentence (durational departures) or altering the prison/non-prison assignment for the sentence imposed (dispositional departures).34 To impose a departure sentence, the judge was required to articulate the aggravated or mitigating factors35 that provided "substantial and compelling reasons"36 to support a departure from the presumed sentencing range. If the judge relied on factors not in the statute, those factors had to be consistent with the principles of the sentencing guidelines: sanctions should not be related to socioeconomic factors, race, or geographic location.37 The guidelines also established rules for sentencing in multiple conviction cases. Under the KSGA, when a defendant was convicted of multiple counts in a single charging document or multiple charges in officially consolidated charging documents,38 the trial judge had discretion to impose the sen-

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tences for each of those counts to operate either consecutively or concurrently.39 At sentencing, the judge would determine which of the convicted charges was the most severe and find the appropriate grid box using the defendant's full criminal history score. Other charges in the case would be calculated based upon the lowest criminal history score of "I."40 If the trial court ordered consecutive sentences, however, the total of the sentences could not exceed double the presumptive sentence for the most serious crime.41 If charges were filed in separate cases, and any of the current crimes were committed while the defendant was on felony probation or parole, the Act required the trial judge to order consecutive sentences for the new crimes.42 Once a sentence was imposed under the guidelines, the defendant served the entire sentence imposed, less any earned good time credits.43 Unlike the prior statutes, which permitted a 120-day call back when the court could reduce the defendant's sentence after intake evaluations,44 the KSGA prohibits the modification of sentences once they are imposed.45 The only exceptions for modification are for clerical errors, illegal sentences, or the potential reduction of an underlying prison term when a defendant's probation is revoked.46 The Commission and Legislature, however, also recognized the need for some transition for those moving from a prison setting to reintegrating with the general public. Accordingly, the guidelines required the KSGA sentence to include a mandatory term of post-release supervision, ranging from 12 to 24 months depending upon the severity of their most serious crime of conviction.47 A person who completed their sentence would then serve a post-release term as set by statute, plus any good time credit that permitted an early release from prison.48 Under the original version of the KSGA, persons convicted of sexually violent or sexually motivated crimes, however, could be ordered to serve a post-release term of up to 60 months upon a judicial finding of necessity.49 A person serving a term of post-release supervision was initially supervised by the Kansas Parole Board and subject to the conditions imposed by that board.50 A person found in violation of the terms of his or her post-release supervision terms could be returned to prison for up to 90 days, unless the person committed a new felony or misdemeanor while on post-release supervision; with a new crime, the defendant was required to serve the balance of the post-release term, plus the sentence for the new crime.51 When an individual completed both the prison sentence and post-release supervision terms, she would receive a discharge from the parole board and her civil rights would be restored.52

A Shaky Start for the KSGA As with any major change in legislation, the implementation of the KSGA had a rocky start. Unintended consequences arose and judicial interpretation of the provisions required legislative amendments to more clearly state the intent of the Act. Despite the Legislature's attempt to limit judicial discretion in sentencing, there was some push-back from the trial

courts.53 The Sentencing Commission reported that in 1995, more than one-half of all sentences imposed under the KSGA involved either a dispositional or durational departure.54 For non-drug offenses, the durational departures were split fairly evenly between upward and downward departures. In contrast, 75% of durational departures in drug crimes were reductions from the presumptive sentences.55 By 1997, however, the number of departure sentences had decreased and the Commission determined that presumptive sentences were imposed in 86.6 percent of pure guidelines cases.56 Since that time, the number of presumptive sentences imposed have stayed generally in the 80 to 85 percent range.57 Another ripple the KSGA created was its impact on the case load of both district and appellate courts. As part of the KSGA package, the legislature limited appeals of sentences under the KSGA. Under the original Act, either party could appeal from a presumptive sentence if they were challenging the severity level and/or criminal history used to calculate the sentence; either party also could challenge departure sentences.58 Otherwise, the appellate courts were denied jurisdiction to review a presumptive sentenceâ&#x20AC;&#x201D;any of the three options within the appropriate grid boxâ&#x20AC;&#x201D;absent allegations of partiality, prejudice, oppression, or corrupt motive by the sentencing court.59 The 1995 legislature amended the partiality and prejudice exception and limited its application only to departure sentences.60 Additionally, the Act precluded appeals from sentences the defendant agreed to accept as part of a plea agreement when that agreement is approved by the court.61 Legislative provisions limiting appealable sentencing issues, however, did not stop convicted defendants from filing appeals to challenge their sentences. First, the new sentencing provisions needed interpretation by the appellate courts in differing factual contexts. As a result, the number of appeals significantly increased. Statistics maintained by the Kansas Judicial Branch reflect that the Supreme Court's caseload averaged about 200 cases per year in the late 1980s,62 while the Court of Appeals' annual caseload averaged about 1200 cases.63 In 1993, the Court of Appeals' caseload increased to over 1500 cases and then to nearly 2300 cases in 1996. The Supreme Court's caseload increased to 300 new cases in 1993 and remained over 250 cases per year through 1997.64 An internal study established that nearly 50 percent of the total criminal appeals filed in the Court of Appeals between 1994 and 1997 were guidelines appeals.65 The Board of Indigent Defense Services (BIDS) similarly reported increased workloads for attorneys representing indigent defendants after 1993, with an average increase in caseloads of 20.4 percent, which included an 18.3 percent increase in appellate services.66 Probably the biggest initial impact on caseloads of the district and appellate courts was the KSGA's limited retroactivity provision.67 This provision required the DOC to review all records of inmates serving indeterminate sentences to ascertain which inmates qualified for conversion of their indeterminate sentences to a determinate sentence under the KSGA.68 Inmates whose sentences were not converted were permitted to

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file an objection to the DOC's decision within 30 days.69 If the 30 days had expired, inmates could initiate an action under K.S.A. 60-1507 seeking conversion from the courts. These cases added to both the district and appellate courts' caseload as a large percentage of disqualified inmates challenged the DOC's findings.70

Legislative Tinkering Over the Years The rather straight-forward original version of the Act has transformed over the years to a complicated combination of guidelines and a number of special rules. The legislature has altered and modified nearly every section of the KSGA on more than one occasion, and then changed the statutes again in an attempt to clarify prior amendments in response to legal challenges arising from the alterations. The impact of these nearly continuous changes has caused considerable consternation and litigation as attorneys and the courts have attempted to adapt to the additions and revisions imposed by the legislature.

An attorney practicing criminal law must know one important key principle: with very limited exceptions,71 the sentencing statutes in effect at the time of the defendant's crime controls the sentencing parameters available to the trial court to impose.72 Consequently, attorneys, court service officers, and judges must take care to determine which version of the sentencing grid boxes and special rules apply to a defendant's potential sentence. Accurate information is vital to ensure the defendant is fully informed of possible consequences when considering plea offers and making trial decisions.73 The legislature's changes to the KSGA are too numerous to list individually. On occasion, the legislature has increased the length of sentences in the grid boxes, especially for more serious crimes.74 Conversely, the legislature also has reduced the length of sentences in presumptive grid boxes, especially when prison populations neared or exceeded their capacity point.75 The legislature also has, over the years, reduced the severity level of various offenses and increased it for others.76 In the early years of the KSGA, the statutes contained five "special rules" that applied to sentences imposed based on specific facts.77 By the end of the 2015 session, the KSGA included 46 special rules which impact the severity level of the offense, the prison/non-prison presumption for the sentence, as well as offender registration requirements.78 Probably the most significant impact on prison populations arose due to widely publicized sex crimes involving underage victims, leading to major changes to the KSGA. In 2005, the severity levels of crimes such as indecent solicitation of a child, aggravated indecent solicitation of a child, and sexual exploitation of a child79 were increased. In 2006, House Bill 2576, commonly known as "Jessica's Law" was adopted.80 Under Jessica's Law, sex offenses involving victims under the age of 14 and perpetrators 18 years or older became off-grid felonies; these crimes carried a presumptive lifetime sentence with a mandatory minimum sentence of 25 years for a first time offense, subject to specific departure provisions.81 In 2007, the requirement that sex offenders register under the Kansas 26

The Journal of the Kansas Bar Association

Offender Registration Act (KORA)82 was changed to require lifetime registration of adult offenders whose crimes involved sexually violent offenses.83 Over the years, sentences for repeat offenders also became a major focus of legislative action. After July 1, 1998, a new sentencing rule was created making a conviction for residential burglary be treated as a presumptive prison sentence if the defendant had a prior conviction for residential burglary, nonresidential burglary of other buildings, or a pre-guidelines aggravated burglary.84 Likewise, violating a protection of stalking order or a temporary restraining order became a severity level 9 person felony and a second or subsequent conviction for that crime involving the same victim was upgraded; it is currently a severity level 5 person felony.85 The legislature also has created worthless check provisions classifying the giving of multiple worthless checks totaling over $1000 within a sevenday period as a felony, and raising the severity level of the offense if the person has two or more convictions for giving worthless checks within the preceding five years.86 The legislature also expanded the KORA registration obligation to include specific violent offenders and defendants convicted of serious drug crimes,87 thereby increasing the number of persons who could potentially be convicted of failing to comply with registration laws.88 The combination of an increase of convictions for KORA violations together with the increasing severity levels for such offenses has caused incarceration rates for registration offenses to rise significantly in recent years.89 On the other end of the spectrum, the legislature has taken a number of steps trying to prevent lower-level felons from being sent to prison. In 1996, border boxes were added to the drug grids for some severity level 3 and 4 drug crimes, thereby permitting trial judges to impose non-prison sentences without departure findings.90 In 1998, the legislature required sentencing judges to consider, on the record, placing a convicted defendant in the Labette Correction Conservation Camp or a community intermediate sanction center before imposing a dispositional departure in presumptive non-prison cases91 unless the judge made express findings why the non-prison placement would not be suitable.92 Regrettably, the Labette facility was closed in 2009 due to DOC budgetary constraints so this provision became inoperable.93 In other amendments, the legislature changed a crime's designation as a person or nonperson felony, reflecting a change of view regarding a crime's impact on society.94 In 2000, the legislature adopted House Substitute for Senate Bill 323.95 One of its provisions required that all probation violators be placed in a Community Corrections program at least once prior to revoking the offender's probation and sending him to a DOC facility.96 The same bill defined the target offender population for the Community Corrections programs, which provided more intensive supervision than standard adult probation supervision.97 If the sentencing court found and articulated specific grounds for concluding that the violator posed a public safety risk or that the defendant's welfare would not be served by community corrections,

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however, the person could be sent directly to prison.98 Additionally, with some exceptions, probation violators who were sent to prison for technical violations would be relieved of their obligation to serve post-release supervision. In addition, the DOC was directed to apply this particular provision to qualifying prisoners upon their release from prison.99 In the same bill, the legislature also retroactively reduced the presumptive length of probation terms for low-level drug and non-drug felonies, although the sentencing judge had the option—after making particularized findings of public safety or prisoner welfare—to impose a longer probation term.100 Similar retroactive changes were adopted for shorter terms of post-release for low-level felons.101 While SB 323 had some immediate impact, the legislature continued its adjustments. In later sessions, sentencing provisions for drug crimes changed several times in a continuing effort to keep low-level drug offenders out of prison. Senate Bill 123,102 adopted in 2003, was designed to provide non-prison sentencing options for qualifying nonviolent adult offenders with drug abuse problems.103 Those defendants could be ordered by the court, as part of their probation, to participate in a certified drug abuse treatment program for a period of up to 18 months.104 An offender who refused to participate in or comply with treatment requirements would have his probation revoked.105 Recently, the legislature rewrote the drug crime statutes altogether, altering the severity level of a number of drug crimes and adding a fifth severity level on the drug grid.106 Notwithstanding all these changes, the commission continued to project that future prison populations would outgrow available prison space.107 In its continuing effort to limit the number of probation violators being sent to prison, the 2013 Legislature passed House Bill 2170 creating graduated sanctions for probation violators.108 Under this bill, the trial court is required to impose graduated sanctions for probation violations unless the court determines the violator has committed a new crime, has absconded from supervision, or the court makes specific findings that public safety or the welfare of the offender requires imprisonment without graduated sanctions.109 Amendments adopted in 2014 clarified these statutes.110 Again, there has been some push-back from trial courts who have attempted to avoid graduated sanctions by broadly interpreting the term "absconder" or by readily making findings relating to public safety or offender welfare in order to impose underlying prison sentences.111 The graduated sanctions apply to all probation revocation hearings occurring after July 1, 2013, regardless of the date of the original offense.112 The legislation also (again) shortened post-release supervision terms for most defendants113 by removing the requirement that postrelease terms be extended by the good time credit a defendant received toward his or her prison sentence.114 Based on its prior actions, it is reasonable to assume the legislature will continue to make adjustments to the KSGA. As the legislature continues to add new crimes to the criminal code115 and increase sentences for serious offenses,116 however, the reduction of sentences for low-level crimes will have little impact on prison populations due to the stacking effect of

sentences for persons serving off-grid sentences with mandatory minimum terms.117

Apprendi and McAdam: Judicially Created Tsunamis The implementation and effectiveness of the KSGA has been impacted not only by legislative changes, but also by federal and state judicial opinions. The first round of turmoil was caused by a 2000 U.S. Supreme Court decision based on the Due Process Clause, and was shortly thereafter followed by an unexpected decision made by the Kansas Supreme Court relating to drug offenses.

The first tidal wave to hit the judicial system came with the United States Supreme Court's decision in Apprendi v. New Jersey.118 In Apprendi, the U.S. Supreme Court invalidated a New Jersey hate crime sentencing enhancement statute, finding it violated a criminal defendant's constitutional right to due process and to a jury trial. Specifically, the Court reasoned that the Sixth Amendment required that any fact which exposed a defendant to a penalty exceeding the statutory maximum for the crime must be proven to the jury. Thus, in Apprendi, the trial judge's post-conviction determination that the defendant's crime was a "hate crime"—thereby allowing the judge to increase the sentence—was invalid because the hate crime determination was not proven to a jury beyond a reasonable doubt.119 The only enhancing factor excepted from the Apprendi rule was the use of prior convictions to enhance sentences.120 Apprendi became an immediate hot-button topic in the Kansas courts. The criminal defense bar immediately began to use Apprendi as an attack on many aspects of the KSGA. The Kansas Supreme Court transferred on their own motion a number of appeals raising Apprendi challenges to many KSGA provisions. As a result of these appeals, the Court issued a number of decisions in 2001 and 2002 upholding many aspects of the KSGA, but striking others.121 The two most impactful Apprendi-based decisions from the Kansas high court were State v. Gould122 and State v. Ivory.123 In Gould, the Kansas Supreme Court found the KSGA's upward durational departure provisions124 were unconstitutional on their face. The state argued that because it was a multiple conviction case, the maximum statutory sentence for Ms. Gould for Apprendi purposes would be limited only by the "double-double rule." This rule arose from KSGA's provisions permitting trial courts to impose double the base sentence as a departure and also allowing the doubling of that sentence when imposing consecutive sentences convictions arising from the same complaint.125 Rejecting the state's argument, the Court held that any upward durational departure from that presumptive gridbox sentence for the individual defendant violated Apprendi by permitting sentencing judges to increase sentences based upon aggravating factors not presented to a jury nor proven beyond a reasonable doubt.126 Even though the Gould decision was initially criticized on many fronts as too-broad a reading of Apprendi,127 the legislature immediately stepped in and enacted a bifurcated jury procedure for those cases where the prosecutor or the court believed an upward durational departure was warranted.128 www.ksbar.org | July/August 2017 27

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Despite much criticism, however, the Gould reasoning ultimately was validated by the U.S. Supreme Court in Blakely v.

Washington.129 In Gould and another case issued shortly thereafter, the Kansas Supreme Court confirmed that the ruling invalidating upward durational departures would apply only to sentences yet not final on July 26, 2000, the date Apprendi was decided.130 In contrast, in State v. Ivory, the Kansas Supreme Court rejected a defendant's claim that the guidelines' criminal history provisions violated the Apprendi standard. Ivory argued that use of prior criminal convictions to increase his sentence was unconstitutional when the existence of those convictions was not presented to a jury and proven beyond a reasonable doubt. The Kansas Supreme Court cited language from Apprendi prohibiting sentencing enhancements "[o]ther than the fact of a prior conviction."131 The court relied on this same reasoning to find the use of prior juvenile adjudications to enhance a defendant's criminal history score did not violate Apprendi.132 Although Ivory's reasoning continues to be challenged, the Kansas Supreme Court has shown no indication it would depart from its holding in Ivory.133 After the waters largely calmed in the wake of the Apprendi decision, another major wave of criminal litigation arose based on the Kansas Supreme Court's decision in State v. McAdam.134 The McAdam case involved, among other issues, a challenge to the sentence imposed by the trial court for the defendant's conviction of conspiracy to unlawfully manufacture methamphetamine.135 McAdam was sentenced under the manufacturing statute which was designated as a severity level one drug offense.136 Another provision of the drug code, however, prohibited the compounding of any stimulant or other specified drugs. This offense was designated as a severity level three drug crime.137 Adopting the reasoning of earlier decisions,138 the Supreme Court found that because the two crimes had identical elements, only the lesser sentence—that for the severity level 3 drug felony of compounding—could be imposed.139 The impact of McAdam was immediate. Kansas trial and appellate courts were suddenly faced with a number of cases where sentences for manufacturing methamphetamine were being challenged.140 In addition, defendants convicted of the more severe offense were collaterally challenging their sentences as illegal141 or the result of ineffective assistance of counsel for failing to raise the identical offense doctrine at trial or on direct appeal.142 Others, who entered plea agreements and never filed an appeal from their severity one sentences, attempted to file direct appeals out-of-time seeking to have their sentences reduced based upon McAdam.143 In response to the McAdam decision, the 2005 legislature amended the relevant statutes, attempting to ensure they no longer met the standard of "identical offenses."144 Even thereafter, the identical offense doctrine had been raised in other contexts, both for drug offenses145 and non-drug offenses,146 consuming the time of both trial and appellate courts. Despite the revision of the manufacturing statute, the impact of the McAdam standard will require on-going vigilance by the 28

The Journal of the Kansas Bar Association

legislature when writing new criminal statutes or amending current statutes in order to avoid overlapping or identical offenses carrying different sentences.

The Newest Pandora's Box Calculating Criminal History Well after many believed the Apprendi wave had vanished with respect to the KSGA, and the disruption of McAdam had largely been resolved by statute, new cases have shaken one of the primary pillars of the KSGA: the determination of criminal history scores. The first rumbling—State v. Murdock147— was an unexpected statutory interpretation of the provisions defining the process for calculating criminal history scores.

The second, an offspring of Apprendi—Descamps v. United States148—created an even bigger wave which is still pounding on sentencing laws in Kansas and nation-wide.

When adopted, the KSGA required the court to prepare a Presentence Investigation Report (PSI) in each case reflecting relevant information about the defendant's current charges, a listing of the defendant's known prior convictions and juvenile adjudications,149 and a calculation of the defendant's criminal history score.150 Criminal history scores ranged from a high of "A" for someone with three prior person felony convictions or equivalent juvenile adjudications, to a low score of "I" for a person with no prior convictions/adjudications or only one misdemeanor conviction.151 The PSI was given to both the defendant and the state prior to sentencing, allowing either party to object to the exclusion, inclusion, or classification of any conviction.152 The state carried the burden of proving any challenged convictions by proving the existence of those convictions by a preponderance of the evidence with sufficiently authenticated documents.153 The early appellate cases addressing criminal history challenges were limited in scope. Many challenges involved the sufficiency of documentation to prove prior convictions.154 Another common theme involved claims that convictions could not be included because they involved the waiver of jury trials and/or entry of guilty plea without the benefit of counsel.155 Early on, the courts also faced—without much controversy—questions about finding the most comparable Kansas statute to determine how an out-of-state conviction would be classified for criminal history purposes.156 Despite the rather consistent judicial precedent in determining criminal history for pre-KSGA convictions, the Kansas Supreme Court took a fresh look at the statutes in 2014 in Murdock. In that case, the defendant was convicted of various robbery charges. During his sentencing hearing, the trial court found Murdock had a criminal history score of A based upon 1984 and 1990 Illinois robbery convictions and a 1996 Kansas robbery conviction.157 On appeal, Murdock argued the trial court erred in treating his two Illinois convictions as person felonies because the comparable Kansas statute in 1984 and 1990 did not classify robbery as a person crime.158 Relying on an earlier decision,159 the Supreme Court rejected the lower courts' reasoning that pre-1993 out-of-state con-

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victions should be classified as person or nonperson crimes by comparing those convictions to the most comparable current guidelines statute.160 Finding no statutory directive in the KSGA, other than a provision in the sentencing conversion provision,161 the Supreme Court held that out-of-state convictions should be compared to Kansas statutes in effect at the time the prior offense was committed. Accepting the defendant's argument that robbery was not classified as person felony in 1984 and 1990, the Supreme Court found that the lower court erred in classifying those convictions as person felonies when determining Murdock's criminal history score.162 As predicted by Justice Rosen's dissent, the Murdock decision opened floodgates with countless defendants challenging their criminal history scores.163 Trial courts, inundated with motions from defendants seeking resentencing under Murdock, resisted applying the holding, frequently finding that Murdock did not apply retroactively, that it applied only to prior out-of-state convictions, and/or that 2014 statutory amendments164 retroactively applied to prevent application of Murdock.165 Just a little over a year later, a fractured Supreme Court reversed course and overruled Murdock and a related case in State v. Keel.166 Keel, authored by Justice Rosen, acknowledged that no explicit language in the KSGA instructed how to classify pre-KSGA convictions and juvenile adjudications as person or nonperson offenses when calculating criminal history.167 Reading the KSGA provisions in para materia, however, the new majority of the Court concluded that the legislature intended that all prior convictions or adjudications, even preKSGA convictions, should be classified as a person or nonperson offense by comparing the criminal statute involved in the prior offense with the most comparable post-KSGA statute that was in effect at the time the current crime of conviction was committed.168 To the consternation of trial judges and prosecutors, however, the overruling of Murdock only solved the statutory issue relating to determining criminal history. As the appellate courts were addressing Murdock challenges, another issue rose to the surface; this issue was based upon the constitutional standards adopted in Apprendi.

In State v. Dickey, the defendant challenged his sentence on a felony theft conviction arguing that the trial court unconstitutionally treated his prior juvenile adjudication for burglary as a person crime, thereby increasing his presumptive sentence.169 Dickey asserted that the trial court's action violated Descamps v. United States.170 Descamps, in turn, involved the interpretation of the federal Armed Career Criminal Act (ACCA),171 by determining whether a defendant's prior conviction constituted a "violent felony" as defined in the ACCA.172 In Descamps, the defendant's prior convictions included a California burglary. The California burglary statute was broader than most burglary statutes and did not require an unlawful entry as the generic version of burglary usually required. Descamps asserted that the trial court erred in reviewing various court records to determine whether his conviction actually involved an unlawful entry.173

On review, the U.S. Supreme Court held that in making the comparison under the ACCA, the focus must be on the elements of the crimes by comparing the statutes and, in some cases, relying on limited court records to determine which elements the prior crime actually involved.174 In Descamps, however, the statute underlying the prior state conviction was broader than the generic burglary definition. Therefore, determining whether Descamps's prior conviction met the generic definition of burglary would require a fact-based inquiry—whether there was an unlawful entry— rather than an elements-based inquiry.175 The latter, according to the Supreme Court, raised serious Sixth Amendment concerns under Apprendi because it permitted the trial court to find facts that would increase the penalty for the conviction.176 Consequently, the Court held that any prior conviction based upon a statute broader than the generic elements of an ACCA precursor crime could never qualify as a violent felony and that trial courts could not make a facts-based inquiry when confirming the prior conviction qualified as a violent crime under the ACCA.177 Reviewing the Descamps reasoning in Dickey's case, both the Court of Appeals and the Supreme Court reviewed the defendant's criminal history score which included a juvenile adjudication for burglary committed in 1992, prior to the KSGA.178 Both courts noted that the burglary statute in 1992 required unlawful entry or remaining within any "building, manufactured home, mobile home, tent or other structure" or a "motor vehicle, aircraft, watercraft, railroad car or other means of conveyance" with the intent to commit a felony or theft.179 Because the pre-KSGA burglary statute did not require proof that Dickey entered a dwelling, an element required to establish a person felony under post-KSGA burglary statutes, the courts held that the elements of the statutes did not align and that the trial court could not review additional factual information—whether the burglary involved a dwelling—to determine if Dickey's adjudication was a person felony.180 Consequently, the courts vacated Dickey's sentence and remanded for resentencing with a lower criminal history score.

As a result of Dickey I, the classification of pre-KSGA convictions for criminal history purposes must remain elementsbased. By adopting the Descamps standards, trial courts must now compare the elements of the pre-KSGA crime with the elements of the most comparable post-KSGA crime. If the elements of the crime underlying the prior conviction compare to the elements of the post-KSGA statute, the person/ nonperson classification of the KSGA applies. If, however, the elements of the two statutes do not include the same elements, the court must determine if the pre-KSGA statute is divisible or indivisible to ascertain whether Descamps' modified categorical approach permits review of underlying court records to ascertain the elements of which the defendant was convicted in the earlier crime.

In addition, in a collateral challenge to sentences raising Descamps—coincidentally involving the same defendant—in State v. Dickey (Dickey II),181 the Kansas Supreme Court held that a defendant could collaterally challenge his criminal hiswww.ksbar.org | July/August 2017 29

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tory score from a final criminal judgment based upon Descamps by the use of the motion to correct the illegal sentence statute.182 Although the Supreme Court acknowledged its prior holdings that K.S.A. 22-3504 did not provide a mechanism to present constitutional challenges to sentences,183 the Court in Dickey II held that the criminal history challenge raised was a matter of state statutory law, "albeit with a thick overlay of constitutional law."184 As a result, the Court rejected the state's challenge to the procedural vehicle used to challenge the prior sentences and found that the sentences were illegal due to an improper calculation of Dickey's criminal history score.185 The questions remaining after Dickey I and Dickey II appear two-fold: first, the courts must identify which pre-1993 Kansas and out-of-state convictions may be treated as person felonies based on the Descamps standards applied in Dickey I; second, because Dickey II permits collateral challenges to criminal history determinations in final criminal judgments, courts will need to address whether there are limits to the retroactivity of the Descamps/Dickey I holdings.

As to the impact of Descamps/Dickey I, the courts have been addressing the issue in many current sentencing hearings and recent appeals. Dickey I controls as to the treatment of preKSGA Kansas burglary convictions as nonperson felonies for criminal history purposes.186 Other cases, many not yet final, have held that pre-KSGA convictions for aggravated robbery187 and aggravated arson,188 were properly treated as person felonies under the Descamps standards. Many more decisions of this nature must be made depending on the elements of the Kansas or out-of-state statutes used to obtain prior convictions.

As to the retroactivity of the Descamps/Dickey I holding, there is no definitive answer from the Kansas Supreme Court.

One very recent Court of Appeals decision, still non-final since a petition for review is pending, reads Dickey II as indicating there is no retroactivity limitation for Dickey I.189 There are strong arguments based on reasoning in other cases, however, that Dickey I should not apply retroactively to all sentences imposed since the KSGA went into effect. For example, when the Court adopted Apprendi constitutional principles in evaluating the KSGA, it held that the new principles only applied to cases not final on the date Apprendi was handed down.190 Likewise, when the Court issued the McAdam decision, which was based upon statutory interpretation principles, it again held that its ruling only applied to sentences not yet final.191 If retroactivity is limited, what is the key date for finality? The date Dickey I was decided (May 22, 2015)? Or would the key date be the date Descamps was issued (June 20, 2013)? Or would it go back to the date of the Apprendi decision (June 26, 2000)?192 Or, to add a new twist, would most collateral challenges disappear as of May 18, 2017, the effective date of 2017 Senate Bill 112? This new legislation specifically altered the statutory definition of "illegal sentence" by excluding situations where a defendant claims a sentence was illegal "because of a change in the law that occurs after the sentence is pronounced."193 Only time will tell.

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Are the Goals of the Original Act Being Achieved?

As discussed above, the implementation of the KSGA has been impacted significantly by numerous, on-going legislative changes and judicial opinions. The once essentially straightforward grid process has become fractured by constant legislative changes and the adoption of numerous special rules.

The penalty for any given grid offense may well vary from year to year. This could create situations in which defendants who commit the same offense at different times receive significantly different sentences, even if they have the same criminal history score. Judicial opinions have sometimes clarified and sometimes muddied the application of the guidelines; while judicial interpretations may be addressed and clarified by legislative enactments, the cases addressing constitutional implications give less control to the legislature. These opinions certainly require special care by the legislature in crafting additional substantive criminal statutes as well as modifying the sentencing statutes in the future.

Have the last 25 years seen any advancement toward the original goals of the KSGA? One of the original goals has largely been achieved: the more structured nature of KSGA sentences has allowed the Commission and DOC to more accurately estimate future inmate populations. However, the KSGA has not, as a secondary matter, been effective in reducing prison overcrowding issues. Every annual report issued by the Commission has contained projections reflecting that Kansas prison populations will continue to grow. Moreover, as one early commentator noted, the guidelines create significant prison terms for more severe offenses and offenders without evidence that these lengthy terms are necessary to control or reduce crime.194 Granted, the determinate sentencing process has allowed the legislature to make more adjustments over the years to try to keep non-violent, low-level offenders out of DOC facilities. Regrettably, the actual long-term impact of those measures are uncertain. The largest drop in Kansas prison population occurred between 2000 and 2002. This temporary drop was primarily due to Senate Bill 323, which reduced the number of probation and post-release violators admitted to DOC prisons. Even back then, however, the Commission estimated that prison populations would increase by over 20 percent by fiscal year 2012 without additional changes.195 Likewise, Senate Bill 123, adopted in 2003, impacted drug sentencing, but its impact was not all as anticipated.196 While the mandatory drug-treatment sentences prevented low-level drug possession offenders from being sent to prison, it actually had little impact on prison populations. This lack of impact occurred because most SB 123-equivalent convictions resulted in non-prison sentences even prior to the adoption of the bill.197 The most significant impact of SB 123 was a major shift transferring convicted defendants from the lower-level court services supervision into the more intense (and costly) community corrections supervision. Community corrections suddenly began supervising nearly 87 percent of SB 123-eli-

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gible defendants.198 In addition, SB 123 was inconsistently applied, especially when it was initially implemented, and some inconsistency remains in its utilization among different judicial districts.199 While the KSGA has been repeatedly modified to focus prison resources on violent offenders, constituent and political pressures have led the legislature to increase the number of jail sentences for repeat, non-violent offenders. While persons convicted of repeatedly passing bad checks or committing forgery200 have a significant financial impact on the community, one might reasonably question whether there might be other options for these offenders rather than mandatory jail sentences created by various special rules.

Finally, the Commission's proposal also intended to decrease racial and geographic disparity in sentencing. The original Commission report contained a number of comparisons consistently showing statistically significant differences at all stages of the existing criminal process between racial groups and geographical factors.201 After the first several years of its operations, one of the members of the Commission criticized the Act's failure to reduce the disparate incarceration of African Americans, as compared to their proportion of state population.202 Granted, trial judges have largely sentenced within the presumptive grid boxes in over 80 percent of KSGA cases, except for the first few years of its implementation. Current statistics, however, reflect that there still is some disparity based on racial factors as African-American defendants tend to receive more aggravated non-departure sentences than whites even as they also receive more down dispositional departure sentences.203 The Commission's analysis has not accounted for the impact of policing practices either before or after the adoption of the KSGA, which would affect current arrest rates and past criminal history. Such a study would be a worthy pursuit to ensure racial profiling, past or present, does not undermine the goal of racial fairness in the criminal justice system.

In the end, the KSGA, as it has evolved over the last 25 years, has managed to achieve its goals of predictability and consistency in sentencing practices in Kansas. The Act takes measures to keep many low-level felons out of state prisons.

But there are serious problems with the lack of access to treatment programs and other social services help people break free of the revolving door of the criminal justice system. This shortfall of services is especially acute in rural areas. Finally, the KSGA and other sentencing laws have made it inevitable that prison overcrowding will be a continuing problem in light of the stacking effect of the large number of current and incoming defendants serving life sentences, many with terms requiring the defendant to serve a minimum sentence of 25, 40 or 50 years.

The problem of overcrowded prisons is a real one facing both states and the federal government. Determinate sentencing can do little to curb prison population growth if the justice systems continue imposing maximum minimum

sentences. Thus, the KSGA is technically a small cog in the wheels of justice that, when applied thoughtfully by judges, can redirect nonviolent and low level defendants from state prisons. The Kansas Legislature will essentially be required to decide whether the KSGA, standing alone, can affect any change in growing prison populations absent increased investment by the State in court service officers, community corrections programs, and drug treatment/mental health options for offenders. n About the Author Terri Savely is the Associate Counsel for the Kansas Court of Appeals and has been with that court in various capacities for over 20 years. She graduated from Washburn University School of Law in 1986. She is a former shareholder in the firm of McAnany, Van Cleave & Phillips in Kansas City, where she worked as a civil litigator in state and federal courts. Terri also served as an adjunct professor of Law at Washburn University School of Law where she taught Conflict of Laws between 1997 and 2001. Terri is tentatively scheduled to return to adjunct duties at Washburn for the Spring 2018 semester teaching Writing for Law Practice.

The author thanks the Hon. Stephen D. Hill of the Kansas Court of Appeals and Connie Hamilton of the KBA Board of Editors for their suggestions and feedback with respect to this article.

1. See Gottlieb, David J., A Review and Analysis of the Kansas Sentencing Guidelines, 39 Kan. L. Rev., Crim. Proc. Ed. at 65-66, n. 13-14 (1991), [hereinafter "Gottlieb, 39 Kan. L. Rev. at __."]; Berman, D., Reconceptualizing Sentencing, 2005 U. Chicago Legal Forum 1 (2005).

2. The Act was repealed and recodified in 2010 as the Revised Sentencing Guidelines Act, K.S.A. 2016 Supp. 21-6803 et seq. L. 2010, ch.

136, §§ 282-305. With the revised Act, the Legislature rewrote the criminal code (chapter 21 of the Kansas statutes), including restructuring substantive statutes and some sentencing provisions. A conversion table identifying pre-2010 criminal statutes with their post-2010 counterparts can be found in the Supplement to chapter 21 of the Kansas Statutes Annotated immediately prior to K.S.A. 2016 Supp. 21-5101. References to earlier versions of statutes in this article will include a reference to the current version of the same or similar statute under the Revised Act. 3. Gottlieb, 39 Kan. L. Rev. at 66.

4. Id. at 68, n 18.

5. L. 1989, ch. 225, § 1, et seq. codified at K.S.A. 74-9101 et seq.

6. Stephan, R., Recommendations of the Kansas Sentencing Commission, submitted to the Kansas Legislature, January 15, 1991, at 1. ["KSC Recommendations, at ___"].

7. Id. at 3.

8. See Lewis, R., The Kansas Sentencing Guidelines Act, 38 Washburn L.J. 327, 328 (1999) (noting that the word "rehabilitation" was not identified as a purpose of sentencing by the Commission) ["Lewis, 38 Washburn L.J, at ___"]. Pre-guidelines statutes required judges to impose a both a minimum and maximum sentences that fell within prescribed statutory ranges, i.e., for a class C felony, the court could impose a minimum sentence of 3 to 5 years and a maximum sentence of 10 to 20 years' incarceration. K.S.A. 21-4501 (1988). Defendants, except for those serving life sentences or convicted of Class A felonies, became eligible for parole after serving their minimum www.ksbar.org | July/August 2017 31

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sentence (or the aggregated minimum of multiple sentences), less good time credit. K.S.A. 22-3717(a)-(b) (Ensley 1988).

9. KSC Recommendations, at 11-26; Gottlieb, 39 Kan. L. Rev. at 68-69.

10. KSC Recommendations, at 2.

11. L. 1992, ch. 239.

12. Id. §§ 1-26 (codified as K.S.A. 1993 Supp. K.S.A. 21-4701 et seq.).

13. See, e.g., L. 1992, ch. 239, §§ 34-230 (non-drug offenses), §§ 281284 (drug offenses). Generally, the legislature designated a crime as a person offense if the crime inflicted or could inflict physical or emotional harm to another. State v. Keel, 302 Kan. 560, 574, 357 P.3d 251 (2015), cert. denied, 136 S. Ct. 865 (2016).

14. See, e.g., L. 1992, ch. 239, §§ 265-274, 285-291.

15. Id. ch. 239, § 304.

16. K.S.A. 21-3439 (2007) (capital murder); K.S.A. 1993 Supp. 213401 (first-degree murder/felony murder) (amended and recodified at K.S.A. 2016 Supp. 21-5401 and 21-5402, respectively).

17. Terrorism and attempted terrorism were criminalized in 2006 with the adoption of K.S.A. 2006 Supp. 21-3449 (amended and recodified at K.S.A. 2016 Supp. 21-5421).

18. This crime was added to the criminal code in 2006. See K.S.A. 2006 Supp. 21-3450 (amended and recodified at K.S.A. 2016 Supp. 21-5422).

19. K.S.A. 2006 Supp. 21-4643 (amended and recodified at K.S.A. 2016 Supp. 21-6627). Jessica's Law refers to a number of sex crimes involving victims under the age of 14 and perpetrators age 18 or older. It applies to crimes committed after July 1, 2006, and makes these crimes off-grid offenses with a sentence of life imprisonment with a mandatory minimum term of not less the 25 years or, if previously convicted of a similar crime, a minimum of 40 years. K.S.A. 2006 Supp. 21-4643(a), (b). Jessica's law has a special section permitting sentencing courts, upon a finding of substantial and compelling reasons, to depart to the sentencing guidelines grid for firsttime offenders. K.S.A. 2006 Supp. 21-4643(d).

20. Sentencing for misdemeanor convictions was governed by K.S.A. 1993 Supp. 21-4502 (amended and recodified at K.S.A. 2016 Supp. 216602). Although the original KSGA included felony driving under the influence of alcohol or drugs (DUI), the 1994 Legislature removed DUI offenses from the guidelines. After July 1, 1994, sentencing for all DUI offenses, excluding involuntary manslaughter or aggravated battery charges arising from a DUI incident, are controlled by K.S.A. 2016 Supp. 8-1567; K.S.A. 21-4704(i) (2005) (amended and recodified at K.S.A. 2016 Supp.

21-6804[i][1]).

21. See also K.S.A. 2006 Supp. 21-4310 (cruelty to animals); K.S.A. 2006 Supp. 21-4318(c) (harming or killing certain dogs) (amended and recodified at K.S.A. 2016 Supp. 21-6412 and 21-6416). Pursuant to K.S.A. 2016 Supp. 21-6416(i)(1), these felonies are subject to the penalties provided in the individual statute, not the KSGA. 22. See K.S.A. 21-4702 (1995) ("The sentencing guidelines . . . shall apply equally to all offenders in all parts of the state, without discrimination as to any element that does not relate to the crime or the previous criminal record of the defendant") (amended and recodified at K.S.A. 2016 Supp.

21-6802[a]).

23. K.S.A. 21-4705 (1995) (amended and recodified at K.S.A. 2016 Supp. 21-6805).

24. K.S.A. 21-4704 (1995) (amended and recodified at K.S.A. 2016 Supp. 21-6804).

25. K.S.A. 21-4704(d), (e) (1995); K.S.A. 21-4705(d)(1).

26. K.S.A. 21-4704(f ) (1995); K.S.A. 21-4705(d)(3) (Furse 1995).

27. K.S.A. 21-4704(f ) (1995).

28. K.S.A. 1993 Supp. 65-4127a(a).

29. K.S.A. 1993 Supp. 65-4127a(c).

30. K.S.A. 21-4705 (1995).

31. K.S.A. 21-3410 (1995) (amended and recodified at K.S.A. 2016 Supp. 21-5412).

32. K.S.A. 2003 Supp. 21-4709 (amended and recodified at K.S.A. 2016 Supp. 21-6809).

33. K.S.A. 1993 Supp. 21-4704.

34. K.S.A. 21-4716 (1995) (nondrug crimes); K.S.A. 21-4717 (drug crimes) (amended and recodified at K.S.A. 2016 Supp. 21-6815 and 2132

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6816).

35. K.S.A. 1993 Supp. 21-4716(b)(1), (b)(2). The KSGA provides nonexclusive lists of aggravating and mitigating factors that can be considered in justifying a departure sentence. See K.S.A. 21-4716(c)(1)-(2) (non-drug crimes) and K.S.A. 21-4717 (drug crimes). See also State v. Reed, 302 Kan. 227, 251, 352 P.3d 503 (2015) (judge must state basis for departure on the record; merely stating that the court had taken into account all the facts of the case was insufficient).

36. "A departure sentence will be upheld when even one factor relied upon by the sentencing court is substantial and compelling. A reason for departure is substantial if it is real, not imagined, and of substance, not ephemeral. It is compelling if it forces the court, by the facts of the case, to abandon the status quo and venture beyond the sentence that it would ordinarily impose." State v. Brown, 305 Kan. 674, 697, 387 P.3d 835 (2017) [Citations and internal quotation marks omitted]. Moreover, the individual factors need not be sufficient on their own to justify departure, so long as the factors collectively constitute a substantial and compelling basis for departure. Id. at 694.

37. See State v. Bird, 298 Kan. 393, 399, 312 P.3d 1265 (2013). See also State v. Theurer, 50 Kan. App. 2d 1203, 1219-20, 337 P.3d 725 (2014) (KSGA focused on "[m]aking the punishment proportional to the crime," and that when factors external to the crime come into play, "punishment may become a function of employment status, marital status, amount of education, or a subjective assessment of one's chances for rehabilitation" creating socioeconomic unfairness).

38. The KSGA does not define "multiple conviction cases" under K.S.A. 21-4720 (amended and recodified at K.S.A. 2016 Supp. 21-6819). The Supreme Court has interpreted the statute to mean multiple charges in the same charging document or consolidated charging documents. See State v.

Quested, 302 Kan. 262, 265, 352 P.3d 553 (2015); State v. Koehn, 266 Kan. 10, 17, 966 P.2d 63 (1998).

39. K.S.A. 21-4608(a) (concurrent/consecutive sentencing standards); K.S.A. 21-4720(a) (incorporating K.S.A. 21-4608[a] into the guidelines); K.S.A. 21-4720(b) (granting trial court discretion when sentencing in a multiple conviction case) (amended and recodified at K.S.A. 2016 Supp.

21-6606, 21-6819, and 21-6819, respectively).

40. K.S.A. 21-4720(b)(2), (3), (5) (1995).

41. K.S.A. 21-4721(b)(3) (amended and recodified at K.S.A. 2016 Supp.

21-6819[b][4]) (also known as the "double rule.") See State v. McClelland, 301 Kan. 815, 830-31, 347 P.3d 211 (2015) (consecutive sentences violating the double rule were illegal).

42. See K.S.A. 21-4608(a) (1995) (pre-KSGA concurrent/consecutive sentencing standards); K.S.A. 21-4720(a) (incorporating K.S.A. 214608[a] into the guidelines); and K.S.A. 21-4603(d) (mandating consecutive sentences in post-KSGA circumstances).The mandate for consecutive sentences applies even if the defendant's earlier probation status is revoked at the same time the court imposed the sentence for the current crime. State v. Koehn, 266 Kan. 10, 12, 966 P.2d 63 (1998).

43. K.S.A. 1993 Supp. 21-4722 (amended and recodified at K.S.A. 2016 Supp. 21-6821).

44. See K.S.A. 21-4603(3) (1988) (amended and recodified at K.S.A. 2016 Supp. 21-6702[d]).

45. See State v. Anthony, 274 Kan. 996, 999, 58 P.3d 742 (2002) (authority to modify legal sentence is limited to the statutory authority specifically provided).

46. K.S.A. 21-4721(f ) (1995) (arithmetic or clerical errors) (amended and recodified at K.S.A. 2016 Supp. 21-6820[i]); K.S.A. 22-3504 (1995) (illegal sentences); K.S.A. 22-3716(b) (1995) (when revoking probation, the court may impose various sanctions, including ordering the defendant to serve the sentence originally imposed "or any lesser sentence.")

47. K.S.A. 1993 Supp. 22-3717(d)(1).

48. K.S.A. 22-3717(d)(1)(A), (B) (1995).

49. K.S.A. 1993 Supp. 22-3717(d)(1)(C).

50. K.S.A. 1993 Supp. 22-3717(i), (l) (parole board could not advance or delay an inmate's release date for KSGA sentences); K.S.A. 1993 Supp.

22-3717(l) (board sets conditions and determines level of supervision required upon release).

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51. K.S.A. 1993 Supp. 75-5217(b). This provision was amended in 1995, allowing technical offenders on postrelease supervision to be returned to prison for 180-day period, although that time could be reduced by up to 90 days based upon the inmate's conduct during his or her return. K.S.A. 1995 Supp. 75-5217(b).

52. K.S.A. 1993 Supp. 22-3722.

53. Lewis, 38 Washburn L.J. at 329 (asserting the KSGA was unpopular among trial judges).

54. According to the report, only 48.1 percent of pure KSGA sentences imposed were within the presumptive range under the Act. Over 27 percent involved durational departures and 28 percent involved upward dispositional departures. Kansas Sentencing Commission Annual Report, FY 1995, at 20-21.

55. Id. at 22-23.

56. Kansas Sentencing Commission, Annual Report FY 1997, at 48 (March 1998).

57. See, e.g., Kansas Sentencing Commission, Annual Report FY 2002, at xiii (August 2003) (83 percent of new pure guidelines sentences imposed fell within presumptive sentencing grid); Kansas Sentencing Commission, Annual Report FY 2012, at xiii (over 80 percent conformity).

58. K.S.A. 22-3602(e) (1995) (limiting sentencing appeals under the KSGA to those listed in K.S.A. 21-4721); K.S.A. 1993 Supp. 21-4721(e) (amended and recodified at K.S.A. 2016 Supp. 21-6820[c]) (permitting appeals from presumptive sentences in only three contexts).

59. K.S.A. 1993 Supp. 21-4721(e) (amended and recodified at K.S.A. 2016 Supp. 21-6820[e][1]). See State v. McCallum, 21 Kan. App. 2d 40, 46, 895 P.2d 1258 (1995).

60. See L. 1995, ch. 251, § 17.

61. K.S.A. 21-4721(c)(2) (1995) (amended and recodified at K.S.A. 2016 Supp. 21-6820[c][2]).

62. This number does not account for the hundreds of petitions for review the Supreme Court received seeking review of Court of Appeals' decisions.

63. See Kansas Judicial Branch, 1990 Year End Summary, Caseload Statistics (1983-1990) collated by the Clerk of the Appellate Courts.

64. See Kansas Judicial Branch, 1997 Year End Summary, Caseload Statistics (1990-1997) collated by the Clerk of the Appellate Courts.

65. Lewis, 38 Washburn L.J. at 335. See also Brazil, J., Court of Appeals Docket Overloaded, Judge Says, 66 Journal of the Kansas Bar Ass'n 13 (Feb/ March 1997) (describing the backlog of cases pending in the Court of Appeals due to increased filings).

66. State Board of Indigent Defense Service, FY 1995 Annual Report to the Governor and Legislature, at 7 (2016).

67. K.S.A. 1993 Supp. 21-4724(b)(1) (repealed 2010) permitted conversion of pre-1993 sentences for inmates whose crimes, if committed after July 1, 1993, would be placed in a presumptive non-prison grid block for specified low-level presumptive prison offenses. Making this determination proved difficult based on the lack of severity levels in pre-guidelines sentencing statutes and changes in the elements of some crimes post-guidelines.

See, e.g., State v. Lunsford, 257 Kan. 508, Syl. ¶ 3, 894 P.2d 200 (1995); State v. Houdyshell, 20 Kan. App. 2d 90, 884 P.2d 437 (1994). The district and appellate courts continue to see some conversion issues raised whenever there is a change in the law. See, e.g., State v. Lee, ___ Kan. ___, 395 P.2d 418 (2017) (rejecting an effort to obtain conversion after new Supreme Court decision, if applied retroactively, would have "changed" the inmate's criminal history score on his pre-KSGA offenses).

68. K.S.A. 1993 Supp. 21-4724(c)(1). See State v. Gonzales, 255 Kan. 243, 250, 874 P.2d 612 (1994) (the conversion of sentences under the retroactivity provision is mandatory). Once a sentence is converted as required, the court has authority to impose a departure, consistent with the purposes of the guidelines, if the court finds substantial and compelling reasons based on information known at the time sentence was imposed in the prior crime. Id. at 250.

69. K.S.A. 1993 Supp. 21-4724(c)(4).

70. See, e.g., State v. Roseborough, 263 Kan. 378, 951 P.2d 532 (1997) (inmate not entitled to conversion of pre-1993 drug sentences due to 1996 amendments in drug crime statutes); Chiles v. State, 254 Kan. 888, 901,

869 P.2d 707, cert. denied 513 U.S. 850 (1994) (holding that limited retroactivity provision did not violate Equal Protection Clause); State v. McGee, 2014 WL 1096940 (unpublished, Kan. App. 2014) (rejecting repeated request for conversion).

71. Some of the legislature's efforts to reduce sentences or post-release terms for non-violent offenders have specifically applied retroactively.

See, e.g., K.S.A. 2013 Supp. 22-3717(s) (provisions amending length of postrelease supervision adopted in 2013 apply retroactively).

72. See State v. Martin, 270 Kan. 603, 605, 17 P.3d 344 (2001) (the penalty for a criminal offense—including placement options—is established by the statute in effect at the time the crime occurred); State v. Sisk, 266 Kan. 41, 44, 966 P.2d 671 (1998) (statute in effect at time of new crime did not permit conversion of sentence for which defendant was on parole). The general rule is that a substantive criminal law, including the terms of punishment, will operate prospectively only. Martin, 270 Kan. at 607.

73. See State v. Freeman, 292 Kan. 21, 253 P.3d 1 (2011) (whether a mutual mistake as to the defendant's criminal history score permits a defendant to withdraw guilty or no contest plea prior to sentencing depends on the facts of the case and circumstances giving rise to the mistake). See also Frock, E., The Need to Know: Acquiring Your Client's Criminal History, 85 Journal of the Kansas Bar Ass'n 38 (Oct. 2016).

74. For example, in 1996, the legislature doubled the length of presumptive sentences for severity level 1 and 2 non-drug felonies; accordingly, whether a defendant's non-drug crime occurred before or after July 1, 1996, carried significant consequences.

75. K.S.A. 1999 Supp. 21-4704 (reducing the presumptive sentence for the most serious non-drug crimes). In 1999, Commission data reflected that the overall impact of various earlier legislative changes—including the lengthening of various sentences, changing offenses from misdemeanors to felonies, and increasing crime severity levels—required action to reduce the prison population projections, especially for probation/parole violators convicted of non-violent, nonperson crimes. Kansas Sentencing Commission, Annual Report FY 1999, at 71 (April 2000).

76. See, e.g., K.S.A. 1999 Supp. 21-3402(a) (amended and recodified at K.S.A. 2016 Supp. 21-5403) (reducing intentional second-degree murder from an off-grid felony to a severity level 1 person felony); K.S.A. 2011 Supp. 22-4903(c)(1)(A) (reducing severity level for first time violation of the Kansas Offender Registration Act). In contrast, due to the methamphetamine epidemic in the mid-to-late 1990s, the legislature increased the severity level of manufacturing controlled substances from a severity level 2 drug felony to severity level 1. In addition, a second conviction of manufacturing a controlled substance mandated the imposition of a sentence double the length of the presumptive sentence. K.S.A. 1999 Supp. 65-4159(b) (amended and recodified at K.S.A. 2016 Supp. 21-5703).

77. Some of the special rules included rules that aggravated assault or aggravated battery, when committed against a law enforcement officer, became a presumptive prison sentence regardless of the defendant's criminal history score. Similarly, the sentence for a person felony, when a firearm is used in the commission of the crime, was a presumptive prison term. See Kansas Sentencing Commission, Kansas Sentencing Guidelines 1994 Desk Reference Manual, at 25-26 (1994).

78. See Kansas Sentencing Commission, Annual Report FY 2015, at xv (April 2016). New additions to the special rules included special treatment for domestic violence offenses, possession of a firearm during a drug felony (additional 6 months and presumptive imprisonment), aggravated child endangerment (sentence must run consecutively), offenders wearing ballistic resistant material (additional 30 months presumptive prison served consecutively), felony theft with three or more prior convictions for felony theft or burglary (presumed imprisonment), multiple forgery convictions (special rules including shock time in jail), and multiple convictions for identity theft/identity fraud (presumptive prison sentence).

79. See K.S.A. 2005 Supp. 21-3510(b), 21-3511, and 21-3516(a)(2) (amended and recodified at K.S.A. 2016 Supp. 21-5508(a) & (b) and 215510, respectively).

80. L. 2006, ch. 212, §§ 1-26.

81. Id. § 2. Jessica's law originally permitted sentencing judges to depart to a guidelines sentence that would be the equivalent for the crime involvwww.ksbar.org | July/August 2017 33

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ing a victim over the age of 14, if the court found substantial and compelling reasons to support such a departure. In addition, once a guidelines sentence is imposed, the court could grant an additional departure based on additional substantial and compelling reasons. K.S.A. 2006 Supp. 214643(d); K.S.A. 2006 Supp. 21-4721(d) (amended and recodified at K.S.A. 2016 Supp. 21-6627 and 21-6820, respectively). In 2008, the legislature limited the trial court's ability to depart in these cases. In crimes of extreme sexual violence, a downward durational departures could not exceed 50 percent of the standard sentence in the gridbox. The amendment also prohibited dispositional departures in these crimes. K.S.A. 2008 Supp. 21-4719(a) (amended and recodified at K.S.A. 2016 Supp. 21-6818).

Significantly, the Kansas Supreme Court has held that other off-grid offenses, such as felony murder, do not permit departure sentences because those statutes lack—as compared to Jessica's Law—any specific provision allowing for departure sentences State v. Nguyen, 304 Kan. 420, 427, 372 P.3d 1142 (2016).

82. The Kansas Legislature created the Habitual Sex Offender Registration Act in 1993. L. 1993, ch. 253, §§ 17-20, codified as K.S.A. 1993 Supp. 22-4901 et seq. The Act originally provided for compulsory registration of specific sex offenders, and failure to register was a class A nonperson misdemeanor. In 1997, the legislature changed the name to the Kansas Offender Registration Act (KORA) and expanded the registration requirement to violent offenders. L. 1997, ch. 181, § 7. In 1999, the legislature increased the penalty for violating the Act to a severity level 10 nonperson felony. L. 1999, ch. 164, § 30. High-level drug crimes were added to the registration requirements in 2011. L. 2011, ch. 95, § 2. These provisions of KORA are currently codified at K.S.A. 2016 Supp. 22-4902(e), (f ). As of June 30, 2017, a first offense of failure to register for a 30-day period is a severity level 6 felony; failure to register for more than 180 days is an aggravated offense and is classified a severity level 3 felony. K.S.A. 2016 Supp.

22-4903(c).

83. K.S.A. 2006 Supp. 22-4906(d).

84. K.S.A. 1998 Supp. 21-4704(l).

85. K.S.A. 2002 Supp. 21-3438(b), (c) (amended and recodified at K.S.A. 2016 Supp. 21-5427[a][3], [b][3]).

86. K.S.A. 2005 Supp. 21-3707 (amended and recodified at K.S.A. 2016 Supp. 21-5821).

87. K.S.A. 22-4902 (a) (10)-(11) (2007).

88. The number of failure to register convictions increased from 251 in 2011 to over 400 in 2015. Kansas Sentencing Commission, Annual Report FY 2015, at 17 (April 2016).

89. Id. 90. K.S.A. 1996 Supp. 21-4705(d); L. 1996, ch. 258, § 11.

91. The Labette camp was created before the adoption of the KSGA, but was defunded by the DOC in 2009. See State v. Johnson, 42 Kan. App. 2d 356, 211 P.3d 861 (2009) (recognizing closure of Labette camp); State v.

Jacobson, 18 Kan. App. 2d 788, 790, 860 P.2d 47 (1993) (discussing recommendation for Labette placement for pre-KSGA sentences). Moreover, the DOC never created any community intermediate sanctions centers (CISC) as set forth in the statute. See State v. Wiegand, 275 Kan. 841, 846-47, 69 P.3d 627 (2003) (acknowledging the DOC's public notice "explaining that funding was provided for the [CISC] program, but no proposals were approved and funding has since lapsed").

92. K.S.A. 1997 Supp. 21-4603d(g) (amended and recodified at K.S.A. 2016 Supp. 21-6604[g]). Even though Labette has been closed for some time, it is still referenced in the most recent version of the statute.

93. Supra note 91.

94. State v. Keel, 302 Kan. 560, 575, 357 P.3d 251 (2015), cert. denied, 136 S. Ct. 865 (2016). See also State v. Williams, 291 Kan. 554, 557, 244 P.3d 667 (2010) (recognizing legislature's reclassification of identity theft from person to nonperson offense); State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003) (recognizing legislature's reclassification of lewd and lascivious behavior from nonperson to person offense), overruled in part by State v. Dickey, 301 Kan. 1018, Syl. ¶ 4, 350 P.3d 1054 (2015).

95. L. 2000, ch. 182, §§ 1-15 (May 25, 2000).

96. K.S.A. 2000 Supp. 22-3716(b).

97. K.S.A. 2000 Supp. 75-5291.

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98. K.S.A. 2000 Supp. 22-3716(b).

99. K.S.A. 2000 Supp. 22-3716(e). Those excluded from this provision include (1) defendants who were granted dispositional departures from presumptive prison sentences; (2) who fell in border boxes and were sentenced to non-prison sentences; (3) who were convicted of sexually violent crimes; or (4) whose probation was violated due to a new felony or misdemeanor conviction.

100. K.S.A. 2000 Supp. 21-4611(c)(5) (amended and recodified at K.S.A. 2016 Supp. 21-6608[c][5]).

101. K.S.A. 2000 Supp. 22-3717.

102. L. 2003, ch. 135, §§ 1-11 (July 1, 2003).

103. See K.S.A. 2003 Supp. 21-4729(a), limiting Senate Bill 123 treatment to adult offenders convicted of specific drug crimes who had no prior convictions for drug trafficking, manufacturing or possession with intent to sell.

104. K.S.A. 2003 Supp. 21-4729 (amended and recodified K.S.A. 2016 Supp. 21-6824).

105. K.S.A. 2003 Supp. 21-4729(f ).

106. L. 2012, ch. 150, § 33, codified at K.S.A. 2016 Supp. 21-6805.

107. See Kansas Sentencing Commission, Annual Report FY 2011, at 85. (2012) (projecting the need for a 20 percent increase in bed space by 2021).

108. See L. 2013, ch. 76, § 5.

109. K.S.A. 2016 Supp. 22-3716(c)(8)-(9).

110. L. 2014, ch. 102, § 8. The 2014 amendments clarified the "quick dip" provisions limiting the total number of days which could be imposed, extending the quick dip procedures to offenders serving misdemeanor and non-grid felony sentences, and requiring discharge of certain offenders under K.S.A. 2014 Supp. 21-6608 unless "clear and convincing evidence" established community interests called for denial of an early discharge.

111. See, e.g. State v. Huckey, 51 Kan. App. 2d 451, 348 P.3d 997 (2015), rev. denied 302 Kan. ___ (August 2, 2015) (finding the "absconder" exception requires more than mere failing to report for supervision); State v.

Sanchez, 2015 WL 7162303, *4 (unpublished, Kan. App. Nov. 13, 2015) (reversing prison sentence because of inadequate findings of public safety or offender welfare; reasons must be set forth with particularity, with distinct findings and specific detail). However, defense counsel must be sure to seek graduated sanctions in order to preserve the issue for appellate review. See State v. Battle, 52 Kan. App. 2d 149, 152, 363 P.3d 424 (2015) (finding that a challenge to a district court's failure to impose graduated sanctions could not be raised on appeal because it had not been raised in the district court).

112. State v. Kurtz, 51 Kan. App. 2d 50, 56, 340 P.3d 509 (2014), rev. denied 302 Kan. ___ (Sept 23, 2013).

113. L. 2006, ch. 212, § 19, codified at K.S.A. 2016 Supp. 22-3717(d).

This provision does not apply to offenders convicted of sexually violent crimes on or after July 1, 2006, who are still required to serve a lifetime postrelease term. K.S.A. 2016 Supp. 22-3717(d)(1)(G). Moreover, sex offenders whose crime occurred between July 1, 1993 and June 30, 2006, are required to serve 36 months post-release, plus the amount of good time credit earned in prison. State v. Herrmann, 53 Kan. App. 2d 147, 153-54, 384 P.3d 1019 (2016), petition for rev. pending. The 2017 Legislature apparently agreed with the Herrmann's interpretation as it amended K.S.A. 2016 Supp. 223717(d)(1)(D) to specifically limit the provision of 36 months post-release to offenders convicted of sexually violent crimes between 1993 to 2006.

Senate Bill 112, L. 2017, ch. 62, § 10 (effective May 18, 2017).

114. K.S.A. 2016 Supp. 22-3717(d) 115. See S.B. 112, L. 2017, ch. 62, § 2 (amending K.S.A. 21-5414 to include the new offense of aggravated domestic battery).

116. See S.B. 112, L. 2017, ch. 62, § 7 (increasing severity level of felonies or attempted felonies committed against a law enforcement officer engaged in his duties or because of his status).

117. Kansas Sentencing Commission, Annual Report FY 2015, at xvi (April 2016) (projecting a 15 percent increase in the prison population between 2015 and FY 2025, even though the total of new admissions to prisons was relatively stable).

118. 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

119. Id. at 482-83.

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120. Id. at 490.

121. See Sittenauer, T., Surviving Apprendi: A Procedural Ideal Meets the Real World of Determinate Sentencing, 72 Journal of the Kansas Bar Association 44-57 (January 2003).

122. 271 Kan. 394, 23 P.3d 801 (2001).

123. 273 Kan. 44, 41 P.3d 781 (2002).

124. The Apprendi prohibitions do not apply to facts weighed in granting dispositional departures. State v. Carr, 274 Kan. 442, 452, 53 P.3d 843 (2002).

125. Gould, 271 Kan. at 410. The "double-double" rule was based on the combined application of K.S.A. 1993 Supp. 21-4719(b)(2) and K.S.A. 1993 Supp. 21-4720(c)(2).

126. Id. at 413.

127. Bibas, Stephanos, Apprendi in the States: The Virtues of Federalism as a Structural Limit on Errors, 94 J. Crim. L. & Criminology 1 (Fall 2003) (noting most state courts, other than Kansas, have interpreted Apprendi very cautiously and narrowly). But see, Note, Apprendi v. New Jersey: Protecting the Constitutional Rights of Criminals at Sentencing, 49 U. Kan. L. Rev. 1193, 1208-10 (June 2001).

128. See K.S.A. 2002 Supp. 21-4718 (amended and recodified at K.S.A. 2016 Supp. 21-6817).

129. 542 U.S. 296, 303-04, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely based on the facts reflected in the jury verdict or admitted by the defendant, reversing increased sentence based upon judicial finding of "deliberate cruelty.") The Blakely majority opinion cited the Kansas legislative reaction after Gould as an option to correct infirmities in determinate sentencing statutes. 542 U.S. at 309. See also Hodgkinson, R., A Blakely Primer: The Kansas Sentencing Guidelines, 28 Champion 20 (August 2004) (noting Kansas had presaged the Blakely decision).

130. Gould, 271 Kan. at 414; Whisler v. State, 272 Kan. 864, 879, 36 P.3d 290 (2001).

131. Apprendi, 530 U.S. at 490. The Court in Apprendi relied on its prior decision Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S. Ct. 1219, 140 L. Ed.2d 350 (1998), to permit enhancements based upon prior criminal convictions. Although Almendarez-Torres has not been overruled by the U.S. Supreme Court, many parties have asserted that its viability is in question due to later opinions of Justice Clarence Thomas expressing that he erred in his vote in the 5-4 decision. See, e.g., United States v. Beckstrom, 647 F.3d 1012, 1020 (10th Cir. 2011).

132. State v. Hitt, 273 Kan. 224, 235-36, 42 P.3d 732 (2002).

133. See State v. Ritz, 305 Kan. 956, 966, 389 P.3d 969 (2017).

134. 277 Kan. 136, 83 P.3d 161 (2005).

135. See Peterson, D. and Jennings, R., Methamphetamine A Recipe for Disaster, 73 Journal of the Kansas Bar Ass'n 7 (Oct. 2004).

136. 227 Kan. at 142. See also K.S.A. 65-4159(b) (Furse 2002).

137. K.S.A. 65-4161(a) (2002).

138. State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002), relying on State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 (1989). In Nunn, the state conceded the sentencing error, but relied, in turn, on State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987). The Clements case fails to cite any legal authority for this position, but simply states that with identical offenses, "the decision as to which penalty to seek cannot be a matter of prosecutorial whimsy in charging." 241 Kan. at 83.

139. 277 Kan. at 145-47.

140. See, e.g., State v. Barnes, 278 Kan. 121, 92 P.3d 578 (2004) (amended manufacturing statute did not apply retroactively; McAdam required resentencing). But see Bryant v. State, 280 Kan. 2, 118 P.3d 685 (2005) (holding that McAdam did not apply retroactively to cases where the judgment was final before the McAdam decision).

141. See State v. Harp, 283 Kan. 740, 156 P.3d 1268 (2007) (identical defense doctrine did not render defendant's severity level one drug sentence illegal under K.S.A. 22-3504); State v. McCoin, 276 Kan. 465, 101 P.3d 1204 (2004) (severity level one sentence is not "illegal" under K.S.A. 223504 because it conformed to the statute).

142. Generally, the courts have refused to find defense counsel ineffective for failing to anticipate the McAdam decision before it was final. See

Barr v. State, 287 Kan. 190, 196-97, 196 P.3d 357 (2008). But see Laymon v. State, 280 Kan. 430, Syl. ¶ 3, 122 P.3d 326 (2005) (based upon unique circumstances of the case, fundamental fairness required that the defendant's sentence should be vacated and remanded for resentencing consistent with McAdam).

143. State v. Phinney, 280 Kan. 394, 401-02, 122 P.3d 356 (2005) (defendant could take an untimely direct appeal of a severity level one drug sentence if he could satisfy the standards of State v. Ortiz, 203 Kan. 733, 735, 640 P.2d 1255 [1982]). See also State v. Shelly, 303 Kan. 1027, 371 P.3d 820 (2016) (setting forth standards for determining whether defendant met Ortiz standard of ineffective assistance of counsel); State v. Unruh, 39 Kan. App. 2d 125, 177 P.3d 411 (2008) (applying Ortiz).

144. L. 2005, ch. 153, §5-6. In 2009, the controlled substances act was removed from Chapter 65 of the statutes and made part of the criminal code, Chapter 21. L. 2009, ch. 32, §3. K.S.A. 2009 Supp. 21-5703(a) prohibited the manufacturing of any controlled substance. K.S.A. 2009 Supp.

21-5709 set forth the crime of possession of drug precursors and paraphernalia.

145. State v. Snellings, 294 Kan. 149, 273 P.3d 739 (2012) (elements of possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance, a severity level 2 drug felony, are identical to the elements of possession of drug paraphernalia with intent to manufacture a controlled substance, a severity level 4 drug felony).

146. See, e.g., State v. Williams, 299 Kan. 911, 329 P.3d 400 (2014) (rejecting argument that the identical offense doctrine applied to aggravated trafficking and promoting prostitution); State v. Bridges, 297 Kan. 989, 1020-21, 306 P.3d 244 (2013) (doctrine does not apply to reckless second-degree murder and involuntary manslaughter).

147. 299 Kan. 312, 323 P.3d 846 (2014), modified by order September 19, 2014, overruled by State v. Keel, 302 Kan. 560, 589, 357 P.3d 251 (2015).

148. 570 U.S. 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013).

149. The original KSGA required the inclusion of prior juvenile adjudications into the criminal history calculation based upon what the severity of the offense would have been had the crime been committed by an adult. Certain less serious nonperson felony adjudications and all nonperson misdemeanors would decay and thereby be excluded from the criminal history score if the current crime occurred after the defendant reached 25 years of age. K.S.A. 1993 Supp. 21-4710(b)(4)-(6). Under current law, a broader range of juvenile adjudications decay for purposes of criminal history. K.S.A. 2016 Supp. 21-6810(b)(3)-(4). K.S.A. 2016 Supp. 21-6810(e) states that these changes were procedural in nature and were to be applied retroactively. But see Parker v. State, 2017 WL 947821 (unpublished, Kan. Ct. App. March 10, 2017), petition for review pending (finding that the retroactivity language applies only to the statutory provisions that are procedural in nature; noting that a contrary interpretation would mean any person with juvenile adjudications in their criminal history score might be entitled to resentencing).

150. K.S.A. 1993 Supp. 21-4713.

151. K.S.A. 21-4709 (2007).

152. K.S.A. 21-4714 (2007).

153. K.S.A. 21-4715 (2007).

154. See State v. Loggins, 40 Kan. App. 2d 585, 589, 194 P.3d 31 (2008) (Minnesota state records were sufficiently authenticated to establish prior Minnesota convictions); State v. Presha, 27 Kan. App. 2d 645, 8 P.3d 14 (2000) (State's evidence establishing prior Florida conviction was sufficient to carry its burden); State v. Strickland, 21 Kan. App. 2d 12, 13, 900 P.2d 854 (1995) (authentication requirements for documents establishing prior convictions); but see L. 2009, ch. 132, § 13 (amending K.S.A. 21-4715[c] to shift burden of proof to defendant when challenging a criminal history score that had been previously established), now codified, as amended, at K.S.A. 2016 Supp. 21-6814.

155. State v. Neal, 292 Kan. 625, Syl. ¶ 4, 258 P.3d 365 (2011) (granting collateral motion challenging inclusion of uncounseled misdemeanor in criminal history when there was no evidence defendant knowingly waived his right to counsel when facing possible incarceration); State v. Long, 43 Kan. App. 2d 326, 225 P.3d 754 (2010) (direct appeal upholding challenge www.ksbar.org | July/August 2017 35

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to inclusion of uncounseled misdemeanor conviction in criminal history score); State v. Russell, 36 Kan. App. 2d 396, 399, 138 P.3d 1289 (2006) (court may correct criminal history score, including an additional conviction, if parties had not stipulated to the original score).

156. See, e.g., State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003) (Virginia conviction for exposure is comparable, although not identical, to Kansas crime of lewd and lascivious behavior); State v. Barajas, 43 Kan. App. 2d 639, 647-48, 230 P.3d 784 (2010) (California conviction for DUI causing bodily injury is not comparable to Kansas aggravated battery statute for purposes of classifying prior conviction as person crime).

157. State v. Murdock, 299 Kan. 312, 313, 323 P.3d 846, 848 (2014).

158. Id. at 314-15, citing K.S.A. 21-4711(e) (amended and recodified at K.S.A. 2016 Supp. 21-6811).

159. State v. Williams, 291 Kan. 554, 224 P.3d 667 (2010).

160. 299 Kan. at 316.

161. See K.S.A. 21-4724(c)(1) (2007) (instructing DOC, when calculating criminal history for conversion purposes, to determine the sentence as if the crime were committed on or after July 1, 1993).

162. Id. at 318-19. Although the Court recognized the state's claim of unfair results, it suggested the unfairness could only be remedied by the legislature. 299 Kan. at 319.

163. Id. at 323 (Rosen, J., dissenting).

164. H.B. 2053, L. 2015, ch. 5, § 1, amending K.S.A. 2014 Supp. 216810.

165. See, e.g., State v. Bailey, ___ Kan. ___, 394 P.3d 831, 833 (May 19, 2017); State v Crawford, 2017 WL 1197996 (unpublished, Kan. App. 2017); State v. Piercy, 2014 WL 7152316, *11-13 (unpublished, Kan. App. 2014) (discussing lack of clarity as to Murdock's application to in-state convictions); Baker v. State, 2014 WL 5616606, *11 (unpublished, Kan. App. 2014) (not applicable to in-state prior convictions).

166. 302 Kan. 560, 357 P.3d 251 (2015), cert. denied, 136 S. Ct. 865 (2016).

167. Id. at 572.

168. Id. at 580-81.

169. 50 Kan. App. 2d 468, 473, 329 P.3d 1230 (2014), aff'd 301 Kan. 1018, 350 P.3d 1054 (2015) [Dickey I].

170. 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013).

171. 18 U.S.C. § 924(e). The ACCA increases the sentence of a defendant convicted of unlawful firearms charges if the defendant has three prior convictions for a "violent felony," which includes burglary. Descamps, 133 S. Ct. at 2287.

172. Descamps recognized the use of two approaches when making this classification for ACCA purposes. The first, the categorical approach, compares the elements of the prior crime with the elements of the crimes as they are commonly understood. The second approach, the modified categorical approach, addresses prior crimes committed under statutes that are divisible, i.e., where one or more of the elements of the crime are alternative.

When a divisible statute is involved, the modified categorical approach allows sentencing courts to review a limited group of documents to determine which statutory alternative was the basis for the defendant's prior conviction. 133 S. Ct. at 2281.

173. Id. at 2282-83.

174. Id. at 2284-85.

175. Id. at 2287.

176. Id. at 2288. See also Shepard v. United States, 544 U.S. 13, 20-21, 135 S. Ct. 1254, 161 L. Ed. 2d (2005) (a defendant pleading guilty admits the elements of the offense; court may not use police reports or records other than the charging documents, jury instructions, or the factual basis for a guilty plea placed on the record at the plea hearing).

177. 133 S. Ct. at 2293.

178. Dickey I, 50 Kan. App. 2d at 473; 301 Kan. at 1033.

179. K.S.A. 1991 Supp. 21-3715. Dickey I, 50 Kan. App. 2d at 488; 301 Kan. at 1022.

180. 50 Kan. App. 2d at 488-89; 301 Kan. at 1039-40.

181. 305 Kan. 217, 380 P.3d 230 (2016).

182. Id. at 221-22. See K.S.A. 22-3504 (motion to correct illegal sentence may be brought at any time).

183. See, e.g., State v. Moncla, 301 Kan. 549, 553-54, 343 P.3d 1161 36

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(2015) (barring constitutional challenge to hard-40 sentence under K.S.A. 22-3504); State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18 (2007) (attempt to bring equal protection, double jeopardy, and Eighth Amendment claims under K.S.A. 22-3504 rejected).

184. 305 Kan. at 221.

185. Id. at 222.

186. See State v. Donaldson, ___ Kan. ___, 394 P.3d 1180 (Kan. 2017) (pre-KSGA juvenile adjudication for burglary is a nonperson felony); State v. Johnson, 215 WL 4366448 (unpublished, Kan. Ct. App. June 26, 2015) (same). But see State v. Collier, ___ Kan. ____, 394 P.3d 1164 (Kan. 2017) (rather incongruously dealing with aggravated burglary conviction under K.S.A. 21-3716.)

187. See State v. Comstock, 2017 WL 2709436 (unpublished, Kan. Ct. App. June 23, 2017) (pre-KSGA burglary convictions improperly scored; remand unnecessary since change did not impact defendant's criminal history score); State v. Davis, 2015 WL 4366527 (unpublished, Kan. Ct. App.), rev. denied 305 Kan. ___ (2015).

188. See State v. Latham, 2017 WL 2494966 (unpublished, Kan. Ct. App. June 9, 2017).

189. State v. McAlister, ___ Kan. App. 2d ___, ___ P.3d ___, 2017 WL 1534285, at *7 (Kan. Ct. App. Apr. 28, 2017), petition for rev. filed May 25, 2017.

190. See Whisler v. State, 272 Kan. 864, 879, 36 P.3d 290 (2001).

191. See Bryant v. State, 280 Kan. 2, 118 P.3d 685 (2005) (holding that McAdam did not apply retroactively to cases where the judgment was final).

192. Various unpublished Court of Appeals decisions have held that the date of the Apprendi opinion is controlling. See, e.g., State v. Thomas, 53 Kan. Ct. App. 2d 15, 24, 383 P.3d 152 (2016), rev. denied April 19, 2017 (the date Apprendi was decided is the relevant date for purposes of the retroactivity analysis); State v. Sartin, 2017 WL 462696, at *2 (unpublished, Kan. Ct. App. Feb. 3, 2017), petition for rev. filed February 27, 2017 (same); State v. Tauer, 2016 WL 7032167, at *2 (unpublished, Kan. Ct. App. Dec. 2, 2016), petition for rev. filed January 2, 2017 (same); State v. Nelson, 2016 WL 6821852, at *2 (unpublished, Kan. Ct. App. Nov. 18, 2016) (same).

193. S.B. 112, L. 2017, ch. 62, §§ 10, 13.

194. Gottlieb, 39 Kan. L. Rev. at 76.

195. Kansas Sentencing Commission, Annual Report FY 2002, at xiv (August 2003).

196. Stemen, D. and Rengifo, A., Alternative Sentencing Policies for Drug Offenders: Evaluating the Effectiveness of Kansas Senate Bill 123, p.

48 (Natl Institute of Justice, March 2012) [hereinafter "2012 NIJ Report, p. __"].

197. 2012 NIJ Report, p. 50, 207.

198. Id. p. 49-50. Significantly, the report indicated that SB 123 defendants in community corrections were more likely to fail within 12 months than offenders sentenced to court services. Id. at 112. Participation in SB 123 programs failed to show a reduced rate for re-arrest or violations as compared to defendants under standard community corrections supervision. Id. at 113. However, revocations were reduced under SB 123, likely in large part due to the fact that continued drug use was not a revocable violation. Id. at 114. Finally, the study found that SB 123 had no impact during its first 5 years on re-arrest or reconviction rates as compared to those on community corrections or in prison. Id. at 117, 128.

199. Id. p. 54-59.

200. K.S.A. 2016 Supp. 21-5821(b)(2)(C); K.S.A. 2016 Supp. 215823(b)(2)-(5).

201. KSC Recommendations 11-26; Gottlieb, 39 Kan. L. Rev. at 68-69.

202. Lewis, 38 Washburn L.J. at 332.

203. See, e.g., Kansas Sentencing Commission, Annual Report FY 2015, at xiv (April 2016). It is unclear from the Commission's statistics whether these two disparities are related, i.e., whether trial judges give African-American defendants slightly more dispositional departures to non-prison sentences, but impose the aggravated presumptive sentence as the underlying prison term along with those non-prison sentence.

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Upcoming CLE Schedule

Live: Eastern Kansas Oil and Gas Conference August 4, 2017 Memorial Building 101 S. Lincoln Chanute, KS Legislative and Case Law Institute August 9, 2017 Kansas Law Center 1200 SW Harrison Street Topeka, KS Lunch and Learn: Straddling the Line Between Attorney Misconduct & Free Speech Rights August 11, 2017 Kansas Law Center 1200 SW Harrison Street Topeka, KS Brown Bag Ethics Replay August 16, 2017- Morning & Afternoon Sessions Kansas Law Center 1200 SW Harrison Street Topeka, KS The Relevance of Civil Rights Encompassing the Daily Practice of Law August 18, 2017- Morning Session Kansas Law Center 1200 SW Harrison Street Topeka, KS

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The Relevance of Civil Rights Encompassing the Daily Practice of Law August 22, 2017- Afternoon Session Kansas Law Center 1200 SW Harrison Street Topeka, KS Brown Bag Ethics Replay August 25, 2017- Morning & Afternoon Sessions Kansas Law Center 1200 SW Harrison Street Topeka, KS The Relevance of Civil Rights Encompassing the Daily Practice of Law August 31, 2017- Morning Session Kansas Law Center 1200 SW Harrison Street Topeka, KS Brown Bag Ethics Replay August 31, 2017- Afternoon Session Kansas Law Center 1200 SW Harrison Street Topeka, KS

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EXCELLENCE Providing superior legal services throughout Kansas...

FOR OVER 70 YEARS A Full-Service Law Firm WICHITA â&#x20AC;¢ TOPEKA

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www.ksbar.org | July/August 2017 39

the diversity corner

Hobbies (or Staying Happy and Healthy in Highly Stressful Profession)

A

fter two years serving as the KBA Diversity Committee’s Article Chair, I find myself struggling to find innovative ways to get lawyers to think about diversity.

I am a female, amputee lawyer so that definitely checks some of the traditional diversity boxes—but that is not all I am. I played high school and college golf; I have a biology degree; I did two years of medical school; I’m one of five kids; and the list goes on and on. The Merriam-Webster Dictionary defines diversity as “the condition of having or being composed of differing elements.” Our profession is made up of an amazing array of individuals with unique talents. This month I want to highlight the diverse hobbies enjoyed by our colleagues.

In our profession, we have numerous artists working in all mediums. One of my favorite former KU law school professors, Sandra McKenzie, has been painting watercolor, acrylic and mixed media since about 1998.

I can personally testify that her work is amazing. She credits her painting in helping her make it through some very difficult times. JoAn Hamilton Lindfors started sewing at five years old, Listening Woman and to this day still sews whenby Sandra McKenzie ever she can find the time to destress. She writes “I grew up in Lindsborg, Kan., and left for Washburn University in 1968 with the hope to be a sewing/ home economics teacher or tailor. My professor was not encouraging at W.U., so I switched majors to elementary education, and here I am a lawyer, graduating from Washburn Law School in 1975.” She is currently assisting with the costumes for the Lindsborg’s outdoor theater’s production of “Beauty and the Beast.”

Knitting is apparently a very popular hobby across the state.

In Wichita, the Yarn Harlots meet once a month at the Anchor. If you are interested, I am sure they would love to have you. If you are in the Topeka area and want to learn how to knit hats, hit up Stacy Edwards.

Music was a very popular response. We have a wide array of hobbies from singers in bluegrass bands to classical musicians.

In Wichita, the Lawyers Pulling Strings have been playing together for 30 years. They were at a Wichita Bar Lunch and re-

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alized they had a quartet and the rest is history. They have been booking gigs for years.

In her abundance of spare time, Ann Zimmerman is a singer-songwriter who performs about 100 times a year. Check out her music at www.annzimmerman. com Glenda Cafer plays in a rock n roll band. In her words, “Totally changes my mood from stressed out to cool.”

Lots of attorneys use physical exercise to de-stress.

While there are many fellow Ann Zimmerman golfers, we also have mixed performs at a festival martial artists, dancers, and hikers. Sherri Wattenbarger has competed in more than 130 triathlons and for almost 20 years has served as the executive director of an annual triathlon workshop for women in KC. Multiple attorneys responded that they really enjoy Dungeons and Dragons or other role playing games. Kate Butler responded that “Recently . . . I've started pouring my creative energy into tabletop roleplaying games, which is a less geeky way of saying I am right now ALL ABOUT Dungeons and Dragons. I am writing a campaign from scratch as the DM for a group of friends (and if that sounds super labor intensive, well, you're not wrong), and I'm a player in a second group that's run by a friend of mine. I'd not played D&D in several years, but I've really fallen back in love with it. It's consuming pretty much all of my creative energy at this point, but in a very good way. And there is nothing like killing some wraiths in a tomb to unwind after a long week!”

If you are interested in board games, Jason Zavadil is the perfect resource if you want to move out the standards. For example, if you want to laugh for hours check out Telestrations. You won’t be disappointed.

Angel Zimmerman thinks she is horribly boring with her hobby being belonging to more than 20 organizations…oh, and being a professional business and life coach. Pretty sure anyone who knows Angel would disagree with her assessment.

the diversity corner

When it comes to food as a hobby, you have lots of choices for inspiration. If you are looking for good barbeque, look no further than Larry Baer who has been competing professionally for years. Deena Bailey bakes cakes for family and friends. Her facebook page is KyDee Cakes and Cookies. I won a birthday cake created by her at the annual KWAA conference in Lindsborg and it was AMAZING! If you like honey, Mary Stephenson in Paola raises honey bees in her spare time. She wrote “The first spring I got them, I would come home from work and sit close to the hive just to watch them coming and going from the Beautiful Jurassic hive and bringing pockets dinosaur cake from full of pollen back. I enjoy KyDee Cakes and Cookies checking on the hive's progress throughout the season. It is truly meditative in nature when I'm out there with them. All my thoughts and emotions are centered on watching them and I'm constantly amazed by the intricacy of their social network. It's a wonderful world of bees!”

From stamp collectors to collectors of classic cars, our profession has it all when it comes to collection as a hobby. One of my favorite responses came from Ted Collins who has collected antique pocket watches for 25 years. He wrote “I was

always intrigued by the intrinsic quality and artistic beauty of pocket watches. I purchased one for myself on my 21st birthday that I carried all through law school. I still have it, though it is not particularly valuable… about $50, which is about what I paid for it in 1973.”

In a profession that can be exceedingly stressful, where some of our colleagues fall prey to depression, alcohol or drug addictions, or other social ills, finding An unusual 11 jewel Illinois a fun, creative outlet for your pocket watch with an openpassion and your soul can make face box-hinged case and a all the difference. If you haven’t hand-painted colorful dial, in 1880, from Ted Colalready, find yours. Serving the made lins' collection. law can consume you 24/7/365, if you allow it to do so. But it doesn’t have to. Find your joy. Nurture it. Make time for it.

Live life to the fullest! n About the Author Amanda Stanley is a member of the KBA Diversity Committee. She received her Juris Doctor from the University of Kansas School of Law in 2014 and her Bachelor of Science in Biology from Newman University in 2008. Stanley currently serves as a Research Attorney for the Kansas Court of Appeals. amanda.stanleyjd@gmail.com

www.ksbar.org | July/August 2017 41

Attendees, Attendees, Speakers, Speakers, Exhibitors, Exhibitors, and and Sponsors

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www.ksbar.org | July/August 2017 43

KBA Awards Re Phil Lewis Medal of Distinction F. James “Jim” Robinson is a business litigation part-

ner in the law firm of Hite, Fanning & Honeyman, L.L.P. He received degrees from Southwestern College (1980) and the University of Kansas School of Law (1983).

He has held a number of leadership positions in the Wichita Bar Association, the Kansas Bar Association, the Kansas Association of Defense Counsel, and the Defense Research Institute (DRI) .

He served as Chair of the Steering Committee of Kansans for Fair Courts. He serves as a member of the Executive Committee of the Lawyers Committee of the National Center for State Courts in Washington D.C. and of the National Advisory Committee of the National Association of Women Judges “Informed Voters—Fair Judges” Project.

He has received the Howard C. Kline Distinguished Service Award from Wichita Bar Association (2016), two President’s Awards from Wichita Bar Association (2009, 2014), Kevin Driscoll Outstanding State Representative Award from DRI (2015), State Leadership Award from DRI (2015), Dis-

tinguished Service Award from Kansas Bar Association (2014), Distinguished Service Award from Kansas Association for Justice (2013), Distinguished Service Award from Kansas Association of Defense Counsel (2007), and three F. James Robinson, Jr. Awards for Legislative Advocacy from Kansas Association of Defense Counsel (2006, 2009, 2013).

He served on the Board of Directors of United Methodist Youthville, Inc. (1985-2006) and as Board Chair (19901991; 2002-2003). In 2002, he received from Child Welfare League of America the National Award for Board Leadership.

He is a member of the Social Sciences Hall of Fame at Southwestern College.

Jim is married to Jennifer Robinson, and they have three children.

The KBA’s Phil Lewis Medal of Distinction is reserved for individuals or organizations in Kansas who have performed outstanding and conspicuous service at the state, national, or international level in administration of justice, science, the arts, government, philosophy, law, or any other field offering relief or enrichment to others. The recipient need not be a member of the legal profession nor related to it, but the recipient’s service may include responsibility and honor within the legal profession. The award is only given in those years when it is determined that there is a worthy recipient.

Professionalism Award Honorable Gwynne E. Birzer,

the sixth United States Magistrate Judge sitting in Wichita, Kan., was appointed to the bench on July 1, 2015. Judge Birzer holds two degrees from Washburn University; a Bachelor of Arts degree in Criminal Justice received in 1989, and a law degree received in 1992.

Following law school, Judge Birzer practiced law in Topeka, Kansas in the public sector as an assistant public defender, an assistant district attorney, and as an assistant attorney general, and in the private sector in her own firm.

In 2004, Judge Birzer relocated to Wichita, Kan. where she worked at the Sedgwick County Public Defender’s Office. In 2006, she joined Hite, Fanning & Honeyman, LLP where she specialized in medical malpractice defense litigation.

In 2011, Judge Birzer became a partner in the firm, and she served in that capacity until her judicial appointment.

In addition to her judicial responsibilities, Judge Birzer serves her community on various boards and civic organizations. Judge Birzer has taken on leadership positions in both the Kansas and Wichita Bar organizations. She has served on various KBA and WBA committees. She is also a member of the American Bar Association, and a Fellow of the American Bar Foundation.

This award recognizes an individual who has practiced law for 10 or more years who, by his or her conduct, honesty, integrity, and courtesy, best exemplifies, represents, and encourages other lawyers to follow the highest standards of the legal profession as identified by the KBA Hallmarks of the Profession.

cognition 2017

Distinguished Service Award

James M. Concannon

is the Senator Robert J. Dole Distinguished Professor of Law at Washburn University School of Law. He is a 1971 graduate of the University of Kansas School of Law. Following graduation, he was Research Attorney for Justice Alex Fromme of the Kansas Supreme Court for two years.

He joined the faculty at Washburn in 1973, where he has taught Evidence, Civil Procedure, Appellate Practice, Conflict of Laws, Legislation, and Transnational Products Liability Litigation. He was selected by students in 1977 as the second recipient of the William O. Douglas Professor of the Year Award. He served as dean at Washburn from 1988-2001. He is the author of many book chapters and articles and has been a frequent speaker at CLE programs.

Concannon is a Kansas Commissioner to the National Conference of Commissioners on Uniform State Laws, serving on its Style Committee and as Legislative Liaison for Kansas. He is a member of the Kansas Judicial Council’s Pattern Instructions and Civil Code Advisory Committees. In 2012, he received the Kansas Supreme Court’s Justice Award. In 2011, he received the Distinguished Alumni Award from the University of Kansas School of Law. Since 1992, he has been Administrator of the Sam A. Crow American Inn of Court and is a past President of the Inn. He served on the Editorial Board for The Bencher, the national publication of the American Inns of Court. He also was President of the Kansas Fellows of the American Bar Association.

He currently serves on the Board of Directors for Kansas Legal Services for Prisoners, Inc., and Kansas Appleseed Foundation, Inc.

This award recognizes an individual for continuous long-standing service on behalf of the legal profession or the public, rather than the successful accomplishment of a single task or service. Only one Distinguished Service Award may be given in any one year. However, the award is given only in those years when it is determined that there is a worthy recipient.

Pillars of the Community Award Sara Beezley

graduated from Southern Methodist University and Duke University Law School, and returned to her hometown of Girard, Kan., to practice law. She is in general practice and was a sole practitioner until five years ago. Sara was elected to the KBA Board of Governors in 1993, served as President in 2002-2003 and was the KBA Delegate to the ABA House of Delegates. She's been a member of the legislative, nominating, fee dispute resolution and awards committees and currently serves as chairman of the Awards Committee. She has also been on the Board of Trustees for the KBF. Sara served on the KLS Board of Directors, was a member of the Governor's Commission to study rural hospitals, a member of the KTLA and Kansas Association of Criminal Defense Lawyers. She was Chair of the Rule of Law Conference sponsored by the KBA. She served on the Kansas Board of Discipline for Attorneys and was chairman and member of the Review Committee. She is a member of the Family Law Advisory Committee for the Kansas Judicial Council and

a member of the 11th Judicial District Bench Bar Committee and Nominating Commission.

Sara was also a member of the State of Kansas Judicial Evaluation Commission.

Among Sara's community involvement—serving on the YMCA board for years, past President, inducted into the Y Hall of Fame; the Governing Board of Community Mental Health Center of Crawford Co., and a past president; the Community Foundation of Southeast Kansas, the Girard Area Chamber, the Board of Trustees for Pittsburg State University Foundation, the Board for Southeast Kansas Legal Services and for Southeast Kansas Community Corrections. For years, Sara has volunteered for the American Cancer Society, United Way, Southeast Kansas Catbackers, given numerous CLEs and presentations for local schools and groups.

Pillars of the Community Award recognizes a Kansas lawyer with a minimum of 10 years active non-specialized, general legal practice in a predominately low-density population area of Kansas and substantial practice in small or solo law firms or local government service.

kba awards

Distinguished Government Service Award Sharon Dickgrafe

is Chief Deputy City Attorney for the City of Wichita. She received her Juris Doctorate Degree from the University of Kansas School of Law graduating as a member of the Order of the Coif. She graduated Magna Cum Laude from Kansas State University with a degree in Family and Consumer Sciences.

Sharon is a leader in numerous associations, including the City Attorneys Association of Kansas, CAAK, the Tenth Circuit of the International Municipal Lawyers Association.

In 2016, she was designated a Local Government Fellow by IMLA. Sharon is a KBA member and has served on the Diversity and Awards Committees.

An active member of the Wichita Bar, Sharon served as chair of the Summer Intern Program for a number of years mentoring high school students. Additionally, she has served on the Diversity, Criminal Practice and Municipal Court

Practice Committees. She was a member and served as Secretary for the Wesley E. Brown Inn of Court in 2010. She is also a member of the Kansas Women Attorney’s Association and Wichita Women Attorney Association.

In 2016, Sharon provided numerous hours of support to the Wichita Bar Association’s “Clean Slate” program which resulted in several hundred municipal court convictions being expunged.

Sharon is a frequent CLE presenter on municipal law, ethics, criminal law and procedure. In 2016, she was a presenter at the International Municipal Lawyers Association Conference and also presented legal education to the Arkansas City Attorney’s Association in Little Rock, Arkansas.

Distinguished Government Service Award gives recognition to a Kansas attorney who has demonstrated an extraordinary commitment to government service.

Courageous Attorney Award Sarah Brown has been a civil litigation attorney for 33 years and is currently a partner with the law firm Brown & Curry, LLC. Since approximately 1994, she has focused her practice on employment cases involving wrongful termination, harassment, retaliation, and discriminatory practices based on sex, race, age, disability and other protected classes.

She also has handled cases involving school or educator abuse and harassment of students and teachers.

In 2005, Sarah began representing victims of sexual abuse perpetrated by priests, clergy and religious institutions, and has worked on more than 100 civil sexual abuse cases. Sarah is compassionate about giving a voice to individuals victimized

by trusted others and by persons in positions of power. She has been fortunate to have had the opportunity to work with other smart, strong and passionate attorneys throughout her years of practice, who have given her the support and drive to assist people who have suffered abuse and harassment.

Sarah received her B.A. from Trinity College in Hartford Connecticut in 1979 and her J.D. from the University of Kansas in 1984. She is active in the National Employment Lawyers Association and its Kansas City Affiliate, and currently serves on the Board for the Association for Women Lawyers of Greater Kansas City. She has served as a mentor for younger attorneys, and as a speaker and panelist at litigation and employment seminars. She likes to mediate cases and is a volunteer mediator for the Missouri Human Rights Commission.

Courageous Attorney Award is given to a lawyer who has displayed exceptional courage in the face of adversity.

kba awards

Outstanding Young Lawyer Award Jean Ménager

graduated from the University of Kansas School of Law in 2014. As a student, he was a research assistant to Professor Christopher Drahozal and served on the editorial board of the Kansas Journal of Law and Public Policy as articles editor. He also clerked at the Shawnee County District Court before joining Colantuono Bjerg Guinn, LLC in 2015 where he practices business and employment law.

A member of the KBA, Jean serves on the Diversity Committee. He is active in the Johnson County Bar Association and the Lawyers Association of Kansas City. He is on the board for the Earl E. O’Connor Inn of Court. Jean also enjoys volunteering and doing pro bono work for the Kansas City Volunteer Lawyers and Accountants for the Arts.

A native of Haiti, Jean is fluent in French and Haitian Creole. In his free time, he enjoys spending time with his wife, Christina, family and friends. His hobbies include photography and model aircraft.

Outstanding Young Lawyer Award is given annually to recognize the efforts of a KBA Young Lawyers Section member who has rendered meritorious service to the legal profession, the community, or the KBA.

Diversity Award Honorable Melissa Taylor Standridge was born

in Kansas City, Mo. She graduated from the University of Kansas and earned her Juris Doctor with honors from the University of Missouri–Kansas City School of Law. There, she was Editor-in-Chief of the UMKC Law Review and Chief Justice of the Appellate Advocacy Program.

Melissa started out in a two-year position with the U.S. District Court for the Western District of Missouri, working as chambers counsel to the Hon. Elmo B. Hunter, after which she joined Shook, Hardy & Bacon as an associate. While at Shook, she became a driving force in creating the firm's Diversity Sub-Committee. She left to serve as chambers counsel to Magistrate Judge David J. Waxse. She was named to the Appellate Court in 2008.

Melissa is involved in many professional associations; she was an original member of the KBA’s Diversity Committee and coordinator of the KBA’s Student Legal Internship Program designed to provide high school students of color with paid summer internships in law firms. Two of those interns are now practicing attorneys. Melissa has long been a fierce advocate for minority students interested in the law and has been a devoted mentor to many students, law students and young

attorneys. President of the Earl E. O'Connor American Inns of Court, she received the Sandra Day O'Connor Award for Professional Service from the National American Inns of Court, was selected as a 2006 Kansas City Legal Leader of the Year from The Daily Record, and earned the KBA’s Outstanding Service Award in 2001.

Melissa also has been deeply involved in the community. A foster mother since 2000, she is an adoptive mother to three children, who were initially her foster children. She also has been very active in—among other efforts—the Midwest Foster Care and Adoption Association, Habitat for Humanity, and the Myasthenia Gravis Association. Selected as an Angel in Adoption by the Congressional Coalition on Adoption Institute, Melissa was the sole recipient in the Third Congressional District to receive this national award.

Judge Standridge and her husband, Judge Richard Standridge, have a blended family of six children.

The Diversity Award recognizes an individual who has shown a continued commitment to diversity; a law firm; corporation; governmental agency, department, or body; law-related organization; or other organization that has significantly advanced diversity by its conduct, as well as by the development and implementation of diversity policies and strategic plans.

kba awards

Outstanding Service Awards Outstanding Service Awards recognize service that significantly advances the administration of justice or the goals of the legal profession and/or the KBA.

Steven B. Angermayer practices law with Pittsburg, Kan., firm Fern & Angermayer. He's been a part-time Crawford Co. deputy sheriff for more than 10 years and has served as an adjunct professor at Pittsburg State University. Steven is actively involved in the KBA and the Kansas Bar Foundation, as well as in his local Crawford Co., Bar Association and the Southeast Kansas Bar Association His practice focuses on Juvenile Law, Criminal Law, Business, Litigation, Contracts, Bankruptcy, Commercial Law, Wills and Probate and Real Estate Law. His community involvement has included Big Brothers and Big Sisters and the JL Hutchinson Baseball Board. Angermayer has presented CLEs and workshops on several topics for the KBA, MAPP and Pittsburg State.

John T. Bird, a native of Hays, Kan., is senior partner in the law firm of Glassman, Bird, Brown and Powell, LLP in Hays. A graduate of Washburn University and the Washburn University School of Law, John has served as City Attorney for Hays since 1987.

His work on natural resources—particularly water— has helped Hays, Ellis Co, and Northwest Kansas establish secure and plentiful municipal water supplies. As a member of the Kansas Supreme Court Child Support Guideline Committee for many years, he helped develop the Child Support Guidelines to ensure Kansas children receive regular and meaningful support. John regularly speaks in the areas of water law, family law and legal ethics. His community involvement includes the Hays Arts Council, KOOD Public Television and the Nature Conservancy.

Citizens of Trego County,

Emily A. Donaldson practices in the areas of elder law and estate planning, is a Certified Elder Law Attorney (CELA) by the National Elder Law Foundation and holds an advanced degree in Estate Planning (LL.M.).

She advises clients on the complex issues of long-term care planning, particularly access to long-term care Medicaid and Veterans’ benefits. Emily helps clients design estate plans to meet their needs and goals.

She has counseled individuals and families with special needs children through their complex legal and financial issues. A member of the Special Needs Alliance—an invitation-only, national non-profit collective —she is also an adjunct professor at Washburn University School of Law, teaching the Elder Law course; and is a frequent author and speaker on issues affecting the aged and individuals with disabilities.

Kurt P. Kerns, is a Wichita criminal defense lawyer who handles complex cases including federal charges, international crimes, major drug offenses and murder. Kurt is the founding partner of the law firm of Ariagno, Kerns, Mank & White, LLC, in Wichita, Kan. He is listed in Best Lawyers in America, has been included in Super Lawyers for nine consecutive years.

Kurt has served on the board of governors for the Kansas Association of Criminal Defense Lawyers and is a life member of the National Association of Criminal Defense Lawyers. He practices before the International War Crime Tribunal at The Hague, Netherlands—one of only 26 American attorneys authorized to appear there.

William E. Quick serves on the Kansas Bar Association Board of Governors and is a past President of the Business, Banking and Corporations Section. Bill has served on and chaired several task forces and special study committees of the bar association. Through his business-oriented legal practice, he represents public and private business entities and nonprofit entities and associations, with special emphasis on management of portfolio companies, strategic alliances, joint ventures, and corporate governance.

Bill is a shareholder in Polsinelli’s Kansas City location.

nominated by Chief District Judge Glenn Braun, were selected for recognition for their willingness and dedication to serving as jurors. This is the first time the award has been extended to an entire county. Braun said, "The folks of Trego County took to heart their civic responsibility in spite of the minimal pay and personal sacrifice. ... They reaffirmed the fact that our legal system could not function and the rights of litigants preserved without their participation." The Trego County Courthouse is an historic icon of Trego County. It has served the legal needs of its citizens since being built in and put into use in 1889. It has undergone many changes and improvements over the years. The courthouse was even featured in the 1974 film, "Paper Moon."

kba awards

Pro Bono Awards Pro Bono Awards recognize lawyers or law firms that deliver direct legal services, free of charge, to the poor or, in appropriate instances, to charitable organizations who primarily provide other services to the poor; Pro Bono Certificates are awarded to lawyers who: are not employed full time by an organization that primarily provides free legal services to the poor; with no expectation of receiving a fee, have provided direct delivery of legal services in civil or criminal matters to a client or client group that has no resources to employ paid counsel; have voluntarily contributed a significant portion of time to provide legal services to the poor without charge; and/or lawyers whose voluntary contributions have resulted in increased access to legal services for low– and moderate–income persons.

Vincent J. Garcia

is a life-long resident of Wichita and a 1974 graduate of Bishop Carroll High School. He earned his B.S. from Wichita State University and his J.D. from Oklahoma City University School of Law. Vincent retired from the Wichita Police Department after 22 years of service prior to starting his law practice in 1999. Garcia Law Office is located in Wichita, and is a true family concern.

Vincent's youngest son, Joseph, is also an attorney at the firm, and his wife, Laura, is one of three paralegals who also serve as interpreters at the firm.

The firm practices in many areas of the law but its primary focus is family and criminal law.

Madison M. Hatten defends

multinational companies in complex product liability litigation, focusing on claims involving pharmaceuticals and medical devices. Madison has been a member of several teams defending clients in multidistrict litigation, including a bellwether trial (Cardenas v. Boston Scientific Corp.) in the pelvic mesh litigation, one of the largest complex cases currently pending in the United States. Pro bono work is also important to Madison. She has assisted families with adoption proceedings by representing them at hearings, and has successfully defended juveniles in family court.

Heather J. Schlozman

is a co-founder of Dugan Schlozman LLC where she represents both private sector and federal employees in all types of claims in all stages of litigation. She is a board member for the Kansas City Workers Justice Center and regularly staffs volunteer law clinics to assist indigent clients with wage theft claims.

Heather is a passionate advocate for women’s rights, and is active with the Women’s Employment Network. A board member of the Association of Women Lawyers, Heather also serves as a volunteer legal advocate for the American Diabetes Association. The proud mother of two teenagers is also an avid distance runner.

Pro Bono Certificates Danielle M. Atchison

represents immigrant women and children who are survivors of domestic violence and other violent crimes in petitions before USCIS. She helps train local shelters on how to gather evidence and triage these cases. Danielle also practices corporate immigration law, assisting employers with a wide variety of immigration issues and immigration related defense from ICE worksite enforcement investigations. She assists clients with visas for international personnel, investors, and executives, as well as employment-based green cards. She is a member of AWL, KCMBA, AILA, KBA, JCBA, and is a board member on the Earl E. O’Connor Inn of Court. She is also a Jackson County CASA Volunteer.

Gabrielle M. Thompson is

in private practice in Manhattan as an Elder Law attorney.

Her early legal experiences highlighted for her the significant need for unpaid legal services. There are many simple legal procedures which lowincome people desperately need but cannot afford. Kansas Legal Services and other public or private services cannot meet the entire need. She participates in the KLS Elder Law Hotline for brief telephone services and accepts pro bono referrals from KLS, the U.S. Army Pro Bono Program, legal services at Ft. Riley and local social service agencies. Gabrielle finds it “liberating” to take on cases now which KLS restrictions prevented her from accepting. She is grateful for all the pro bono services provided by the unsung heroes of local bars.

2017 kba annual meeting thanks

Thank You to Our Annual Meeting Sponsors!

Honorable Patricia Macke Dick Patrik Neustrom, Neustrom & Associates

Dana Brewer, Brewer Law Firm, LLC

THE

BAR PLAN

WISE & REBER, L.C. est. 1886

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2017 kba annual meeting thanks

Thank You to Our Golf Tournament Sponsors

THE

BAR PLAN

INDIVIDUAL

EXCELLENCE

Thank You to Our Exhibitors

.

TEAM

STRENGTH

.

Gilliland&Hayes LLC

ABA Retirement Funds Program ALPS KBA Bookstore KBA LOMAP Bradley Software Casemaker GilsbarPRO Grus Medical-Legal Consulting LLC Handy Mailing Service ISI KALAP KBA & KBF Member Tables Kansas Paralegal Association/ National Federation of Paralegal Associations Legal Directories Lexis Nexis Network Management Group Inc. Radiel & Associates Stacks Secure Records The Bar Plan

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substance and style

Thank You Notes

I

’m a big proponent of writing thank you notes. Much to my son’s chagrin, I make him write thank you notes after every gift-receiving occasion (which has an added positive side-effect of causing him to rethink how many kids he wants to invite to his birthday parties). Channeling my mother, I’m going to take the opportunity for this month’s Substance and Style column to step on my soapbox and encourage you to write notes of appreciation as well.

I admit, it’s not exactly “legal writing,” but beyond birthdays and holidays, thank you notes can serve an important role in professional writing. They are appropriate, for example, following a job interview or an externship experience. They can be sent after someone offers much needed assistance on a legal project or in appreciation for a client referral. Thank you notes are appropriate whenever someone takes time out of their schedule to help or inform or encourage you. I actually just sent a dozen thank you notes myself after attending a conference at which I heard some really outstanding presentations.

Closely related, and equally beneficial, are notes praising another lawyer’s team member. Everyone likes compliments, and the feeling is even stronger when a boss or colleague gets to hear the kind words. Occasionally, I write notes of appreciation for a thoughtful presentation or helpful act, and I will send the note to the presenter’s dean as a way to more publicly express my gratitude.

Additionally, although not technically a thank you note, I would include in this same category of professional writing notes to tell someone you enjoyed meeting them. In this way, notes can be effective networking tools following any kind of professional interaction.

By way of refresher, let me offer some general guidelines for thank you (and other) note writing. Send the note as soon as possible after the event. I prefer hand-written notes, but I acknowledge that in today’s professional world, email notes are easier and in fact perhaps better for facilitating an on-going conversation or relationship.

In terms of the content of the note, try to include the following parts: First, express your gratitude. Although it may go without saying, it’s often easy to forget to mention the purpose of the note.

• Thank you for the….

• I appreciated your….

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• In case you hadn’t heard, Jane did a great job on….

• It was wonderful meeting you…

Second, identify the particular gift or action specifically instead of just a general “Thanks for the gift.” Instead try: • Thank you for the wonderful lunch you hosted…

• I really appreciated the presentation you gave about…

• I’m grateful for your help with my project on…

• Jane’s presentation about managing client funds was…

• I enjoyed having lunch together during the chamber meeting last week…

Third, explain why you are thankful by noting what you plan to do with the gift or how the person’s actions helped you.

• I look forward to using the gift certificate for…

• It was wonderful to have the opportunity to meet…

• I plan to incorporate your comments when I… • I was especially interested to hear…

Fourth, add a closing statement targeted to the individual you are writing, even just some general conversational chitchat.

• I look forward to seeing you next at…

• If you’re in the Topeka area soon, please let me know…

• If you need any help with…

And finally, close and sign the note in whatever way is most appropriate for your relationship with the recipient.

• Warmly, • Sincerely, • Best, Interpersonal communication, even via email, can serve as the building block for a solid professional relationship. Everyone likes personal contact, praise, and appreciation. Let me (and my mother) encourage you to be aware of note-writing opportunities every week as part of your lawyering practice. n About the Author Emily Grant teaches Legal Analysis, Research, and Writing at Washburn University School of Law. She still sends hand-written thank you notes and even thank-you-for-thethank-you-note notes.

kansas bar foundation

From the 2017-2018 President of the Kansas Bar Foundation

Honorable Evelyn Wilson ... serving the citizens of Kansas and the legal profession through funding charitable and educational projects that foster the welfare, honor, and integrity of the legal system by improving its accessibility, equality, and uniformity, and by enhancing public opinion of the role of lawyers in our society.

OFFICERS Hon. Evelyn Z. Wilson President-elect ewilson@shawneecourt.org

We Each Have a Responsibility to Make These Encounters Safer

D

uring a reception after the final concert of Topeka’s Sunflower Music Festival – which was absolutely magnificent, by the way – I had an interesting conversation with a musician I’ll call “Michael." Michael plays the viola professionally.

His musical creds could go all the way to the bottom of this page and back.

Michael asked me whether I felt safe around the police. He said he doesn’t, and told me a story. He was traveling with his teenage son one day, and was stopped for a minor traffic infraction. Michael asked what the problem was, and the officer was stern and unfriendly.

Michael’s license and registration were demanded. Unfortunately, Michael’s license and registration were in his backpack, which was in his trunk. Michael started to get out of the car and the officer pulled his gun and pointed it at Michael. Michael sat back down.

He was told to stay where he was. Michael said, “Then you will have to get my license.”

The officer said he would not, because he didn’t know what was in the trunk. Michael’s son asked, “What do you think is in the trunk?!” whereupon Michael told his son to be quiet. Michael got a ticket for speeding and failure to have a license and registration and was sent on his way. And now he does not feel safe around police.

The last law enforcement officer killed in Shawnee County was making a routine traffic stop. He asked for a driver’s license and got a bullet.

Stories like this are now a regular part of our news. Routine traffic stops are anything but routine. There is enormous distrust on both sides of the car window. With some, it has been that way for decades. With some, this is new. But that distrust makes any interaction dangerously volatile. One false move for either the driver or the cop could have deadly consequences.

I wish I had some great wisdom I could impart to solve this terrible societal problem.

I don’t. I can’t. We need to.

Topeka

Amy Fellows Cline President-Elect amycline@twgfirm.com

Wichita

Susan G. Saidian Secretary-Treasurer sgsaidian@gmail.com

Todd N Thompson Immediate Past President todd.thompson@trqlaw.com

Wichita

BOARD OF TRUSTEES Susan A. Berson Terrence J. Campbell Daniel H. Diepenbrock Richard F. Hayse Scott M. Hill Donald Hoffman Randee Koger Joslyn Kusiak Hon. Rhonda K. Mason Amy E. Morgan Terri J. Pemberton Eric L. Rosenblad Lindsay A. Shepard

Lawrence

Overland Park Lawrence Liberal Topeka Wichita Hays McPherson Independence Olathe Overland Park Topeka Pittsburg Ulysses

Nathan Eberline Young Lawyers Representative

Topeka

Jeffery L. Carmichael Wichita Kansas Trial Lawyers Association Representative Hon. Patricia A. Macke Dick Kansas Women Attorneys Association Representative

Hutchinson

Mary E. Christopher Kansas Association of Defense Counsel Representative

Topeka

Dennis D. Depew Topeka Kansas Bar Association Representative Christi Bright Overland Park Kansas Bar Association Representative Charles E. Branson Lawrence Kansas Bar Association Representative EXECUTIVE DIRECTOR Jordan E. Yochim jeyochim@ksbar.org

Topeka

DIRECTOR, PUBLIC SERVICES Anne Woods Topeka awoods@ksbar.org

www.ksbar.org | July/August 2017 53

So what does this have to do with being the new President of the Kansas Bar Foundation? Well, I think it has something to do with me, a State District Judge, being in the position of holding such an office. The KBA and KBF are, and should be, lawyers’ organizations. While I used to practice law, I am precluded by the Judicial Code from practicing law now. I don’t have the same perspective on legal issues that I did when I practiced. I’m removed from the day-to-day pressures and concerns of practicing law. I can’t raise money. Strictly verboten. Others will sign the fundraising letters. I must find a different place from which to contribute.

I think my contribution must be something that might be helpful to the bar exactly because of a perspective the attorneys don’t always have. You all represent one side of a dispute.

I don’t represent any side, but I hear from a lot of sides in a lot of cases.

Many of you have never seen a criminal trial and don’t want to. But, with few exceptions, we’ve all been stopped for speeding. We all have had someone tell us they don’t trust cops.

And this brings me to my point—maybe a judge, this judge, can help you respond in a way that is helpful to us all.

I’ve presided over about 80 felony jury trials. I have listened to the testimony of many drivers and many law enforcement officers. I have watched attorneys wrestle with driver/police distrust during voir dire. I have seen legal adversaries explore, explain, and exploit the problem. I have listened to potential jurors defend and vilify law enforcement because of their own experience with this issue.

To the next “Michael," I will say, “This is what I plan to do if someone is trying to stop me, and that someone seems to be a law enforcement officer.” And then I will tell him the following:

About the Author Hon. Evelyn Wilson is Chief Judge of Kansas’ Third Judicial District (Shawnee County).

Before taking the bench in 2004, she practiced law for 19 years—seven years in northwest Kansas at Lund Law Firm, and twelve years in Topeka at Wright, Henson, Somers, Sebelius, Clark & Baker. A native of Smith County, Kan., Judge Wilson graduated from Bethany College and Washburn Law School. She is chair of the Kansas Sentencing Commission, a member of the American Judges Association, American, Kansas, and Topeka Bar Associations, Kansas Women Attorneys Association, and Women Attorneys Association of Topeka.

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First, I’ll assess the situation to make sure my stop makes sense. Does this look like a real law enforcement officer in a real law enforcement vehicle making a real traffic stop? If it does, then I’ll stop my car. If it looks like a robber with a strobe light and there’s no one around, I will drive to a safe place and worry about explaining myself later (because I may have to).

Second, after I have stopped my car, I will put my hands on my steering wheel at 10 and 2. (Cops want to see your hands.

From the time they stop, they are watching you. They care a LOT about your actions and only SOME about what you say, because people don’t always tell the truth. The temperature of the situation will stay a lot lower if the cop can see everyone’s hands.)

Third, I will wait for the officer to tell me what to do. I will comply. Slowly.

I will be respectful. I will speak in a normal tone of voice. I will not challenge the officer.

If the officer does not act professionally, I will have the opportunity to complain later. This is NOT the time. The officer is—and must be—in control of the situation at that moment.

This is what I say to you: I promise not to ask for your money. But I can, and do, ask for your time. I ask you to think about common, human interaction. Make it better. Make it safer.

It is my honor to serve as President of the Kansas Bar Foundation for the next year. I hope I can be a positive service to the lawyers in this state. I owe you a great debt. We all do. n

The 2017 Kansas

Annual Survey of Law

This publication covers case law, statute and regulation updates for 30 different areas of law. The publication is updated annually.

For more information or to order visit: www.ksbar.org/bookstore or 785-234-5696 or akohlman@ksbar.org

Topics: • Administrative Law • Banking, Commercial & Contract Law • Bankruptcy • Business Organizations • Civil Procedure • Civil Rights • Constitutional Law • Construction Law • Criminal Law • Elder Law • Environmental Law • Ethics & Discipline • Evidence • Family Law • Health Law • Indian Law • Insurance Law • Intellectual Property Law • Juvenile Law • Labor & Employment Law • Land Use & Zoning • Local Government Law • Not-for-Profit Corporations • Oil, Gas & Mineral Law • Probate & Trust Law • Real Property Law • School Law • Tax Law • Torts • Water Law • Workers Compensation

www.ksbar.org | July/August 2017 55

Members in the News New Positions Lauren Amrein has been appointed as an Assistant District Attorney for the Shawnee County District Attorney’s Office.

Kristen Armstrong has established Central Kansas Family & Elder Law, LLC, in Hutchinson. Her office will serve families and individuals of all ages in a wide variety of family law, life and estate planning and elder law in Reno County, Wichita, McPherson, Lyons and the surrounding area.

Jenifer Ashford was selected to fill a magistrate judge vacancy created by the retirement of Judge Michael H. Farley.

The 10th Judicial District encompasses Johnson County. Ashford, of Prairie Village, was the senior prosecutor for the City of Shawnee and city prosecutor for the City of Lake Quivira.

Aaron Boswell has joined the Klenda Austerman Law Firm as an associate. His practice centers on litigation.

Jennifer Brunetti resigned in mid-May from her position as Frontenac City Attorney—a position she had held for 22 years—but will remain on staff as the city prosecutor.

Joshua Donaldson joined the firm of Lewis Brisbois as an associate in employment and labor practice.

Edward L. Keeley, attorney with the Wichita law firm McDonald Tinker, has been hired by the city of Great Bend to assist the City with employment issues.

Mason Lent has joined Hite, Fanning & Honeyman as a member of its litigation team. The firm is located in Wichita.

Kevin L. Phillips was selected by the 12th Judicial District nomination committee to fill the magistrate judge vacancy in Jewell. Phillips, who has been in private practice in Mankato, was to assume his new role upon swearing in.

Chase Simmons has been named vice chairman and chairman-elect of Kansas City-based Polsinelli. The law firm ranks among the 100 largest in the U.S., with offices in Atlanta, Chicago, Dallas, Denver, Houston, Los Angeles, Nashville, New York, Phoenix, San Francisco, St. Louis and Washington, D.C. Scott Ufford has joined the Patterson Legal Group in Wichita.

Rachelle Joy Veikune of Hays was sworn in as a Kansas Attorney earlier this year. Ms. Veikune is employed by Kansas Legal Services.

Miscellaneous Warner Eisenbise received a Lifetime Achievement Award from the Wichita Bar Association.

Judge Robert J. Fleming was presented the Community Outreach and Education Award by the Kansas District Judges

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Association at its statewide conference in June. Judge Fleming, a past president of the organization, retired from the Labette Co. District Court on July 14 after 21 years on the bench.

Gloria Farha Flentje was awarded the Chester I. Lewis Diversity Achievement Award by the Wichita Bar Association.

Judge Robert J. Frederick of Lakin was elected president of the Kansas District Judges Association. New officers were elected at the organization's statewide conference in June.

Alan Goering received recognition in a Days of Yore column in the Gyp Hill Premiere commemorating the fact that 30 years ago (on June 4, 1987) an item appeared in The Barber County Index announcing that Goering had been elected Secretary-Treasurer of the Kansas Bar Association.

Greg Graffman, city attorney for Kingman, Kan., was named to the board of directors for the City Attorneys Association of Kansas. He will serve a three-year term. Graffman is one of only two board members to represent smaller communities. Graffman also serves as city attorney for the towns of Cunningham, Spivey and Turon.

Jeff Griffith, Derby Public Schools legal counsel for the past 35 years with Griffith & Griffith Law Firm, has resigned that position and will be closing his practice due to health issues. After Griffith graduated from the Washburn University School of Law, he joined his father in practice. At the time, his father was the school board attorney, and in 2001, Jeff took over that responsibility from his father.

Kellie Hogan of Kansas Legal Services, Karin Kirk of the Wichita Bar Association, Richard Samaniego of Gilliland and Hayes, and William Woolley with the 18th Judicial District were each presented with the Wichita Bar Association’s President’s Award.

Jeffrey Low, a lawyer with Stinson, Lasswell & Wilson LC, has become a member of the International Academy of Family Lawyers.

Anne McDonald, executive director of the Kansas Lawyers Assistance Program—KALAP—received the Justice Kay McFarland Award from the Women Attorneys Association of Topeka. McDonald has been with KALAP since 2009; she began as the interim director. She is a graduate of the University of Kansas School of Law and practiced for three years before becoming a court trustee for the 29th Judicial District in Kansas City, Kan. She retired from that position in 2006.

Kerry E. McQueen was the Commencement Speaker for the Washburn University School of Law. He was awarded The Honorary Doctor of Law in recognition of his many accomplishements over his more than 50 years of practice.

Dan Monnat, of Monnat & Spurrier, Chartered, was ranked in the top tier of Kansas attorneys in the Litigation: White-Collar Crime and Government Investigations sector by “Chambers USA 2017”.

Obituaries The Honorable Nancy Moritz, with the 10th U.S. Circuit Court of Appeals in Denver, Colo., was profiled in the Topeka Capital Journal late in the spring. The judge credits Washburn University and the Washburn School of Law with her success, and she happily devotes time to the university when asked.

The 10th Circuit handles cases from Kansas, Colorado, Oklahoma, Wyoming, New Mexico and Utah.

Tamara Niles, city attorney of Arkansas City, was elected president of the City Attorneys Association of Kansas at its June 9, 2017 meeting.

Jeffery D. Peier, managing partner of the Klenda Austerman LLC law firm has been named chairman of the search committee that will assist and advise the Kansas Board of Regents in its search for the next President of Fort Hays State University. Peier is also chair of the FHSU Foundation Board of Trustees.

Ed Trusty received the Wichita Bar Association’s Liberty Bell Award, presented by the Young Lawyers’ Section.

Derek Schmidt, Kansas Attorney General, was elected by his peers to serve as president of the National Association of Attorneys General, a nonpartisan group representing 56 state and territorial AGs. Kari Schmidt of Conlee, Schmidt and Emerson, received the Howard C. Kline Distinguished Service Award from the Wichita Bar Association.

Maritza Segarra has been reappointed to a four-year term on the Kansas Judicial Council. Segarra, Junction City, is a judge in the 8th Judicial District. Kansas Supreme Court Chief Justice Lawton Nuss made Segarra's reappointment.

John Stites, a Lifetime Member of the KBA, celebrated his 90th birthday on May 13th. Stites, a graduate of The Kansas University School of Law, retired after more than 60 years of practice. In addition to practicing law, he served two and a half terms in the Kansas Legislature and was very active in a number of community organizations.

Michelle Wade of Jetstream Aviation Law had the article “A Trust for the Family Jet” published in the May, 2017 American Bar Association eReport for the Section of Real Property, Trust and Estate Law.

New Locations Hinkle Law Firm is now fully ensconced in its new location at 1617 N. Waterfront Parkway in Wichita. The firm now occupies the third, fourth and fifth floors of the nownamed Hinkle Law building. n

WADE HAMPTON BOWIE, JR. – passed away on March 31, 2017 in Hoover, Alabama, after a life of service to others and country. Born April 20, 1943, to the late Wade Hampton Bowie and Nora Esther Clemens Bowie, Wade grew up in Columbia, Tennessee, with his sisters, Barbara and the late Vivian, and his brother Thomas. He became an Eagle Scout and attended Columbia Military Academy.

He later enlisted in the U.S. Army, serving as a platoon leader in Vietnam and later as the head of security for the Supreme Allied Commander at the Supreme Headquarters, Allied Powers Europe (SHAPE), and at numerous US posts.

He earned a number of accolades, including his Ranger Tab, Airborne Wings, the Legion of Merit, and a Bronze Star. After 28 years of service, Wade ultimately retired as a Lieutenant Colonel at Fort Leavenworth, Kansas, where he had served as an instructor for low intensity conflict at the U.S. Army Command and General Staff College and as Deputy Director of the U.S. Army Low Intensity Conflict Proponency Directorate.

For a short time, Wade served as a consultant to help governments and other agencies combat international drug trafficking from South America.

Wade then attended law school and subsequently enjoyed a second career as a prosecuting attorney in Kansas, where he tirelessly worked to protect at-risk children and their families.

In addition, he participated in a number of state-based initiatives and served on a committee that successfully revised the juvenile codes of Kansas.

Throughout his life, Wade loved and supported his children, Wade Hampton Bowie, II, and James Bowie. He also met and courted his fiancée, Karen Hopkins, who joined him on a series of domestic and international travels, including a trip to China and a return relief and mission trip to Vietnam. He continued to participate in reunions for Vietnam veterans and for the extended Bowie family.

Survivors include his sons, Wade Hampton (Shelly) Bowie, II; James Clemens Bowie; fiancée, Karen Hopkins; and siblings, Barbara Duane Hopkins; and Thomas Clemens (Jan) Bowie.

In addition to his parents, he was preceded in death by his sister, Vivian Ann Bowie Beard Pilant. Funeral services were held on Saturday, April 8, 2017 at 1:00 P.M. at St. Peter's Episcopal Church with Father Thomas Wilson and Father Chris Bowhay officiating. Burial followed in St. John's Churchyard. The family visited with friends Friday from 5:00 – 8:00 P.M. at Oakes & Nichols Funeral Home and Saturday from 11:00 A.M. – 1:00 P.M. at the church. Wade's many achievements are not easily summarized, and his greatest accomplishments are not ones that can be listed on paper.

The family requests memorials be made to Douglas County

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obituaries

Court Appointed Special Advocate (CASA) Program https:// dccasa.iescentral.com\index.html or Vets with a Mission www.vetswithamission.org\donate.

LEWIS C. CARTER – Recently, we lost a son of the greatest generation. Lewis C. Carter, 93, of Holton, Kan., passed away peacefully Wednesday, April 26, 2017 at Holton Community Hospital. He was born May 10, 1923 in Millen, Ga., the son of John Lewis and Mary Alicia (Butler) Carter.

After graduating from Roosevelt High School, Kansas City, Mo. in 1941, he proudly served in the United States Navy during WWII -- Pacific Area -- fighting in three major battles, Iwo Jima, Okinawa and South China Sea. Lewis earned the Victory Medal, 3 stars Asiatic Pacific and Good Conduct Medal. After the war, Lewis traveled the country working on farms and ranches, which led him to study at Kansas State University. Lewis graduated with a BS in Agriculture and MS in Animal Husbandry and Genetics. During his college years, Lewis worked for Kansas State University on their farm and ranch and later taught the university's adult education program, teaching farm management. Throughout his career Lewis proudly displayed his livestock brand - Clothespin E. While teaching, Lewis attended Washburn University School of Law, graduating with a Juris Doctor. Lewis began private law practice in nominal partnership with E.V. Bruce in Holton for 13 years; he served as Municipal Judge for the City of Holton from July 1959 - 1960. In August of 1961 he was appointed Chief Attorney for the State Property Valuation Dept.; in 1969 he was appointed Special Assistant Attorney General and later Assistant Attorney General. On January 1, 1971 Lewis was appointed by Chief Justice Price to serve as Clerk of the Kansas Supreme Court where he worked until his retirement on August 30, 1991.

In retirement, among Lewis' many activities he enjoyed, playing harmonica with local country musicians and analyzing the stock market. He was member of several Bar-related organizations, including the Kansas Bar Association, Jackson County Bar Association, National Conference of Appellate Court Clerks, where he served as President (1981 - 1982), Appellate Rules Committee, Administrative Procedures Committee and Records Committee. Local memberships included the Holton V.F.W. Post #1367, American Legion Post #44, Holton Masonic Lodge #42 AF & AM, Scottish Rite Bodies and Arab Shrine, where he belonged to the Royal Order of Jester Court #125.

Lewis married Jeane Katherine Coggins on November 26, 1947 in Kansas City, Mo., celebrating 69 years of marriage last year. She survives of the home. Other survivors include two sons, John Carter (Stacey) of Tucson, Ariz.; Blaine Carter (Lynda) of Lake Wabaunsee, Kan.; daughter-in-law Catherine L. Carter of Albuquerque N.M.; three grandchildren, Ashley, Elyse and Eryn and one great-granddaughter, Renee. He 58

The Journal of the Kansas Bar Association

was preceded in death by a son, Steven D. Carter; a sister, Kathleen Rickert and a toddler brother, John Lewis Carter, Jr. You've lived a full and remarkable life, Dad -- We love you and will miss you.

A private family graveside service with Military Honors was held at the Floral Hill Cemetery in Kansas City, Mo. Mercer Funeral Home in Holton was in charge of arrangements. Memorials may be given to the Shriner's Hospital for Children or Holton V.F.W. Post 1367 c/o Mercer Funeral Home, P.O. Box 270, Holton, KS 66436.

To leave a special message for the family, please visit: www.mercerfuneralhomes.com. Lewis C. Carter: http://www.legacy.com/obituaries/cjonline/obituary. aspx?pid=185250381#sthash.M8fPufhF.dpuf WILLIAM E. GOSS – 89, passed away Feb. 14, 2017, in El Paso, Texas. He was born Nov. 9, 1927, in Pratt, Kan. William graduated from St. John High School, the University of Kansas and the University of Kansas School of Law. He was elected county attorney of Stafford County from 1954 to 1960, and then practiced law in Stafford until his retirement in 2001. He was a veteran of the U.S. Navy and the U.S. Air Force Reserves.

On Dec. 28, 1948, he married Patricia Colglazier in St. John. She died Dec. 1, 1998. On July 7, 2001, he married Maria Esther Rodriguez in Rome, Italy. She survives. After retiring from law, William relocated to El Paso, Texas and served the community by volunteering at University Medical Center and the Sheriff’s Advisory Board. He enjoyed photography, world travel, and had a lifelong love of animals.

He was preceded in death by his parents, Horton and Mary Mountain Goss; brother, Ed Goss; and beloved dog, Danny.

Survivors include: his children, Dr. Michael Goss, Dr. Patrick Goss (Barbara), Mary Margaret Collins (Clay); granddaughters, Kelsey Goss, Meg Collins, Kate Collins; and brother, Dr. Jerome Goss (Lorraine).

Memorial Service was held at 10 a.m. Saturday, Feb. 25, at the St. Luke Catholic Church, El Paso, Texas. Burial was at a later date in Stafford. In lieu of flowers, donations may be sent to your local Humane Society.

RAY D. JONES JR. – of Mission Hills, Kan., passed away May 21, 2017. Ray was born in Kansas City, Mo., on Jan. 5, 1924. He was a graduate of Southwest High School and attended the University of Missouri, where he was a member of Sigma Nu fraternity and the MU football team.

Ray married Roberta "Bobbie" Houston on June 9, 1951.

They had eight children. He was preceded in death by his parents, Ray D. and Lillian Jones; his wife, Bobbie Jones; his sons Houston Jones, Casey Jones, and John Clay Jones. He leaves behind his children Kevin (Nancy) Jones, Sarah (Mike) Lytle,

obituaries

Brian Jones, Elizabeth Knops, and Brigit Jones; daughter-inlaw Linda Jones; sister Helen Lea; as well as grandchildren Nick (Kate) Jones, Chris Jones (and fiancée Kathryn Orlowski), Caroline Jones, Casey (Maddie) Lytle, Charlie Lytle, Lea Lytle, Ryan Knops; and five great-grandchildren.

Ray served in the Navy during WWII where he was also able to continue his studies with night school at the University of Hawaii. He returned after the war to finish his education at MU and attend MU Law School. . . he was always the first to tell you he graduated "last in his law school class." Ray started his own law practice and was a tenacious attorney even arguing a case in front of the U.S. Supreme Court at the young age of 30. He drifted away from the practice of law, starting 14 different businesses, including ADA Sports Badminton & Tennis, where he was still active until the time of his death.

Ray developed lifelong loves during his summers in the small river town of Lupus, Mo. Baseball on radio, playing sports, free time to roam the family farm, and always time to read. He was an outstanding athlete who carried with him a love of competition and sports until the end. He was proud to have helped form the Cub Scout baseball program and Johnson County YMCA football league in the early 1960s.

The Jones house on Belinder served as the gathering place for seven active children and all their friends. The door was always open, everyone was welcome and the house was never empty.

The backyard was the scene of high school graduation parties, weddings, and many family gatherings. As the children grew up and moved away, the gatherings shifted from tennis in the backyard and baseball in the front yard to dinners, wine tastings, cigars and music on the patio with his longtime friends.

Later in life the house was lovingly referred to as "Chateau Belinder."

Travel was a constant presence in Ray's life, and he never missed a chance to see the world. Ray was a member of the former Surf Club in Bal Harbour, Fla., the Metropolitan Club in New York City, the Saddle & Sirloin Club in Kansas City, Mo., and a lifetime member of Homestead CC in Prairie Village, Kan. Ray will be remembered with a cigar in his hand, a history book in his back pocket, talking to whomever was nearby.

Ray requested cremation with no funeral services. Friends and family attended a celebration of a life well lived at his sister Helen's house on Tuesday, June 6. In lieu of donations, guests were invited to enjoy a nice meal, smoke a cigar, or raise a glass of wine with friends in his honor.

BRADLEY POST – formally named Willard Bradley Post, of Wichita, Kan., passed away on Saturday, April 22, 2017.

Bradley was born on April 4, 1929 in Fowler, Kan., the son of Willard Post and Doris (Barclay) Post. Bradley and Carolyn Post married on August 9, 1952 in Topeka, Kan. Bradley went

to high school in his hometown of Fowler until his senior year at which time he attended New Mexico Military Institute in Roswell, N.M. He obtained political science and law degrees at Washburn University in Topeka, Kan., graduating in 1954. With his endless curiosity for news, world events and the stock market, he was often found with a book or newspaper on his lap. Bradley was also an avid sports fan, fisherman and hunter; he was known early on for his aptitude at shooting pool and snooker, and he loved to play poker and bridge, for which he won the Intercollegiate National Championship while at Washburn.

Bradley and Carolyn lived in various western Kansas communities during their early years together and began rearing a family of 4 children. Bradley was the city and county attorney in Meade, Kan., for a decade; then the family moved to Wichita in 1966, where he became partner in the first of several law firms. He was a tireless researcher and a tactical trial lawyer, representing victims injured by defective products, malpractice, auto collisions and various other causes, in all levels of state and federal court. He was also lead counsel in the Dalkon Shield nation-wide litigation and multi-district litigation, having filed the first case in 1975. He tried the biggest case in 1985, in a 9 ½-week trial, later successfully defending the verdict in the Kansas Supreme Court. He is a past president of Kansas Trial Lawyers Association (now Kansas Association for Justice).

In addition to being a busy professional and a loving family man, he was an adventurer and had many interests. Over the years he often took his family water skiing and snow skiing (he even received a free season pass in Colorado when he turned 70.) He continued to fish and hunt with his brother, friends and kids, and enjoyed his granddaughters and attended many of their programs. He played in and won or placed in pool tournaments into his 70’s, enjoyed cruises and other travels, and he rarely missed the annual Post family reunion.

He also loved the trumpet and had a special cat named Mister.

Bradley was preceded in death by his brother, Donald Post.

He is survived by his loving wife, Carolyn Post of Wichita, Kan., children, Keith Post of Portland, Ore., Kraig Post of Dallas, Texas, Blake Post of Wichita, Kan., Alicia Post of Austin, Texas, brother, Danny (Susan) Post of Dodge City, Kan., and granddaughters, Belinda Post and Lindsey Post. Funeral services were held at Lakeview Funeral Home, Wichita, Kan. Entombment followed at Lakeview Mausoleum.

TODD A. ROHR – died unexpectedly May 31, 2017. He was born in Hutchinson, KS, to Marie and Ernie Rohr on March 13, 1964.

He graduated from Shawnee Mission South and received his Bachelors of Science Degree in Business Administration from the University of Kansas where he was a proud member www.ksbar.org | July/August 2017 59

obituaries

In God we trust....All others, we cross-examine.

William K. (Billy) Rork, 1954-2017 of Sigma Alpha Epsilon. He received his Juris Doctor from the University of Missouri Kansas City and was a practicing attorney in Kansas City for 29 years. He currently served as senior council for TEVA Neuroscience in Overland Park, Kan., and was previously with the law firms of Corporate Counsel Group, Smith Law Firm, and Copilevitz and Canter.

An explorer and lover of nature, his bohemian wanderlust once took him hiking across the island of Turks and Caicos, GPS in hand, discovering new adventures and confirming he had the knack for meeting new people and making friends anywhere on the planet. He was truly a friend to all with a generous spirit and a head of hair making him the envy of all his male (and female) friends. One of his most recent, joyous adventures was a bit closer to home, forging new trails and bushwhacking his property in rural Wyandotte County, proving mushroom hunting could become a competitive sport.

As far as Todd traveled from home, there was always one place he would rather be, beside his wife Diane and two girls, Libby and Anna. Fierce protector, devoted and loving husband and father, strong and gentle human being, he found the greatest joy spending time with them in the simple nature of their beautiful, serene backyard, grilling on his Green Egg and taking a dip in the "spool," their beloved dogs, Eleanor and Roosevelt, close by. The loving, generous spirit of Todd could only be matched by his wit and humorous outlook on life. He could often be found driving the country roads in his dad's restored '58 Ford Fairlane Convertible and listening to his eclectic music collection from Elvis Presley, to Beck, to the Eternal Om. Always willing to lend a helping hand, Todd had one amazing tool collection and if anyone, family, neighbor or friend needed something fixed, he would be at your door in record time with a cadre of sophisticated tools to change a washer.

Todd was predeceased by his father Ernie. In addition to Diane, Libby and Anna, he leaves his mother Marie, brother Brad and wife Tina of Hilton Head, S.C., mother-in-law Mary Breneman of Girard, Kan., brother-in-law Mark Breneman of Laguna Hills, Calif., his tight knit Leawood "friend family," and other close friends and family near and far. Todd is at peace and will be deeply missed. Services were Monday, June 5, at the Church of the Resurrection's Main Sanctuary in Leawood, Kan., with a reception immediately following. In lieu of flowers, the family suggested gifts be made to a trust fund for his beloved daughters, Libby and Anna Rohr at United Missouri Bank, The Sierra Club, or Harvesters of Kansas City. To view this information online and to send the family condolences, visit JohnsonCountyChapel.Com

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WILLIAM K. (BILLY) RORK â&#x20AC;&#x201C; 62, Topeka, passed away Wednesday, May 31, 2017. Billy was born June 22, 1954, the son of O. Thomas and Teresa Towle Rork. He earned his Juris Doctor degree from Washburn University School of Law in 1979. Billy was a renowned attorney, practicing since 1980.

His specialties were criminal defense and appellate advocacy.

Affectionately known as F. Lee Billy, he was a member of the Kansas Lawyer s Assistance Program, the Kansas Bar Association, the American Bar Association, Shawnee County Bar, National Association of Criminal Defense Lawyers, Kansas Association of Criminal Defense Lawyers and the National Organization for the Reform of Marijuana Laws (NORML).

Billy was an active member of Mater Dei Parish, where he served on the Church Council. He was a member of the Knights of Columbus, Council No. 8059 and the James W. Gibbons Fourth Degree Assembly and served on the Atchison Valley Hope Board.

A lover of the great outdoors, Billy especially looked forward to his yearly hunting trip to Leoti, Kan. Other hobbies included fishing, boxing, rugby, slow-pitch softball, winning arguments in and out of court, laughing with friends and breaking the rules. Billy believed in living it up and sharing the wealth, and practiced this in his daily life.

In 1976, Billy and Diane Van Hoozer were united in marriage; she survives. Other survivors include his daughter, Traci Rork; son, Colin Rork; siblings, Kathy Reding (Larry), Teresa Wignal, Tom Rork (Jackie), Anne Allison (Gary), Sean Rork, Sheila Dunbar (Bob), and Cris Rork. Family greeted friends from Friday morning, June 9, at Mater Dei Holy Name Church. A Knights of Columbus Fourth Degree Chalice Ceremony was conducted and followed by a rosary. Mass of Resurrection was celebrated at 11 a.m. at the Church. Interment followed in Mount Calvary Cemetery. Memorial contributions may be made to Mater Dei Parish or the charity of your choice , sent in care of Kevin Brennan Family Funeral Home, 2801 SW Urish Road, Topeka, KS 66614. Condolences may be sent online to www.kevinbrennanfamily.com. As Billy used to always say, In God we trust...all others we cross examine.

William K. Rork - See more at: http://www.legacy.com/obituaries/cjonline/obituary.

PAUL TRANEL SELZER passed away on April 30, 2017, in Palm Springs, Calif. Paul was born on August 7, 1940, in St. Louis, Mo. He was the eldest of four children born to Paul and Clarine Selzer. He is survived by his two brothers, Jim and Jack, and their sister, Nina. On Sept. 12, 1964, Paul and Kay Zambiski, were married until her death in 2015. He spent his life as a devoted husband, father and a well respected attorney and felt blessed and enormously grateful for his life. He is survived by his son Mark and wife Sayomi, his daughter Lori and husband Chad, and four beautiful grandchildren, Connor Bernard, Rhonin Bernard, Colin Bernard and Tim Selzer.

obituaries

Paul graduated from Rockhurst High School (1958), Marquette University (1962) and Stanford Law School (1965).

He began his legal practice in Riverside, Calif. The primary focus of his work was estate planning and real estate development. However, when Paul and Kay moved to Palm Springs to expand the firm, his focus shifted to natural resource conservation. He became an expert in the field, primarily, in the protection and conservation of endangered species. His expertise became nationally recognized. He negotiated conservation agreements and habitat conservation plans among local governments, developers, and environmental groups in California, Arizona, Texas, Florida and Nevada. His work resulted in the permanent conservation and management of over 500,000 acres for the benefit of both indigenous plant and animal species as well as human populations. Paul served on the board of directors of The Friends of the Desert Mountains for over 30 years. During that time, the organization developed permanent conservation and protection of over 50,000 acres in the Coachella Valley and the surrounding mountains.

For his efforts, the Secretary of the Interior of the United States granted him the prestigious Silver Eagle Award. Paul's life was celebrated by his family and friends Saturday, May 27, in Palm Springs, Calif. Donations in Paul's name may be made to his alma mater, Rockhurst High School, 9301 State Line Road, Kansas City, MO 64114 (816) 363-2036.

JERRY L. SMITH â&#x20AC;&#x201C; age 87, passed away on Monday, April 10, 2017, at Greeley County Long Term Care Center. He was born on August 12, 1929 in Moran, Kan., the son of Andrew Raymond Smith and Sarah Elizabeth Geneva. Jerry attended and graduated from the Kansas University School of Law. He also played on the KU Jayhawk Men's basketball team. He has been a resident of Tribune, Kan., since 2002, having moved from Flagstaff, Ariz. He was a member of the Elks, VFW, Rotary, Trial Lawyers Association, Arizona Bar, Kansas Bar, Coconino County Sheriff Posse, Coconino County Attorney Association, and the First United Methodist Church of Tribune.

On June 16,1951 he married Elinor Rice in Wichita, Kan. She survives. Other survivors include: Two daughters Julianna Herring of Tribune, Kan.; Susan Lee and Richard Compau of Flagstaff, Ariz., two granddaughters Laura Jeanne Burrows of Tucson, Ariz., Allison Paige McNelly of Flagstaff, Ariz.; one great great granddaughter, Lolah Grace Hoffman of Moab, Ariz.; and one great great grandson Mason Anthony Burrows of Tucson, Ariz. He was preceded in death by a granddaughter Katherine Elizabeth Herring.

Jerry was a loving husband, father, and grandfather. We will miss him terribly. He left a lasting imprint upon our hearts.

Memorial services were to be held at a later date. Private family interment was to be held at a later date. Memorials may be made to the United Methodist Church in care of Price and Sons funeral home.

JOHN T. SUTER â&#x20AC;&#x201C; 70, of Hutchinson, died June 2, 2017.

He was born in Harper, Kansas, in 1946, the second oldest of seven children to the late Merrill and Mary (McCloskey) Suter.

John graduated from Sacred Heart College in Wichita, Kansas, in 1969, with a degree in business administration. In 1973, he graduated from Washburn University School of Law, and joined the law firm of Hodge, Reynolds, Smith, Peirce & Forker, in Hutchinson, Kan. In 1977, he became partner in the firm, which is now Forker Suter LLC. On August 8, 1970, he married Mary Jean (Stone) who survives of the home. John was an active member of Our Lady of Guadalupe Catholic Church. John is survived by: his six siblings, Merle (Martha Anne) of Wichita, Robert (Debra) of Wichita, Vicki (Luther) Talley of Cheney, William (Rebecca) of Florida, Gregory of Wichita, and Thomas (Georgia) of Hutchinson; his nine children, John Christian (Deanna) of Wichita, Jackie Suter (Jeremy Tan) of Hutchinson, Ben (Adriana) of Jacksonville, NC, Liz (Tom) Van Leer of Sedalia, Mo., Dorothy Suter (Josh Doeden) of Wichita, Birdie (David) Robertson of Wichita, Damien of Memphis, Tenn., Dominic of Wichita, Grace of Larned, and her fiancee, Carlos Castaneda; and 20 grandchildren, Noah, Brianna, Samuel, Isaiah, Aidan, Alex, Isaac, Isabelle, Jacqueline, Ezekiel, Faith, Noelle, Mariah, Max, Maggie, Emma Jean, Isidore, Ambrose, Felicity, and Sebastian.

In celebration of John's life, a Parish Rosary was said on June 6, 2017, at Our Lady of Guadalupe Catholic Church in South Hutchinson. Mass of Christian Burial was celebrated on June 7, 2017, at Our Lady of Guadalupe Catholic Church, 612 S. Poplar, South Hutchinson, with Father Ned J. Blick officiating. Memorial donations may be made to Our Lady of Guadalupe or Hereditary Neurological Disease Center, c/o Elliott Mortuary, 1219 N Main, Hutchinson, KS, 67501.

And more than anything, to honor John please "grow in your faith"!

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Conference of Commissioners on Uniform State Laws and on the Kansas Sentencing Commission. Jan attended First Church of the Nazarene.

While in college, Jan and her brother, Duncan, organized a Christian rock band called the â&#x20AC;&#x2DC;Concrete Rubber Bandâ&#x20AC;&#x2122; and performed at various Christian functions and churches. They composed and performed original music for several tapes and a record.

JAN PAULS, 64, of Hutchinson, former Kansas State Representative, died Wednesday, July 5, 2017, at Select Specialty Hospital on St. Francis Campus, Wichita. She was born September 26, 1952, in Hugoton, to Paul F. and Lois (Duncan) Long.

Jan graduated from Sterling College and the University of Kansas School of Law where she received her Juris Doctorate.

She worked as a private practice attorney, was a Reno County Prosecutor, District Court Judge, and served as a Kansas State Representative for the 102nd District from September 1991 to 2017. She represented the district as a Democrat until switching to the Republican party in 2014 to advocate for conservative social issues. Pauls lost her bid for re-election last November to Democrat Patsy Terrell. (Terrell passed away last month near the end of her first legislative session.) Jan was proud to hold the distinction of being the longest-serving woman in the history of the Kansas legislature. While in the legislature, she also served as a commissioner for the National

On September 30, 1990, she married Ronald Pauls in Hutchinson. They shared almost 27 years of marriage. He survives.

Other survivors include: parents, Paul F. and Lois Duncan Long of Alden; sisters-in-law, Maggie Long of Manhattan, Deanna Speer (Steve) of Wichita, Debbie Barry (Tim) of Pittsburgh, Penn.; brothers-in-law, John Pauls (Eleanor) of Andover, Roger Pauls (Denice) of Owasso, Okla.; and numerous nieces and nephews.

Jan was preceded in death by her brother, Duncan Long, who died in December 2016.

A memorial service was held on Tuesday, July 11, 2017, at First Church of the Nazarene, 4290 N. Monroe, Hutchinson.

A private burial was later at Fairlawn Burial Park, Hutchinson.

Memorials may be made to the Ruth Dougherty Mission Fund, in care of Elliott Mortuary, 1219 N. Main, Hutchinson, KS 67501.

Ed. Note: Former State Representative and District Court Judge Jan Pauls passed away, and her obituary became available well past our usual deadline for copy for The Journal. However, because she was a lawyer, a former judge and former state rep., I felt it was important to include Jan's obituary in this issue. Because the magazine was already laid out for print, it was not possible to put her obituary in alphabetical order with the others. I hope this irregularity will not cause any inconvenience or confusion.

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The Journal of the Kansas Bar Association

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www.ksbar.org | July/August 2017 63

Do You Know What’s New with Casemaker?

The Legal Researching Bundle Available May Surprise You

C

asemaker, and all of the researching tools included with it, make an excellent research bundle. In May, I presented at KBA’s Solo & Small Firm Conference in Lawrence on, what else, Casemaker! And, I learned through this presentation that some of our members are not all that familiar with some of the “extras” that come along with Casemaker as a part of their membership to the KBA. So, I want to take this opportunity to fully inform you of all that is included with this excellent benefit to your bar membership.

*Casemaker: Research Tool

Casemaker is one of the leading low-cost legal research services available. With intuitive search capabilities, you are able to conduct your legal research quickly and, with your bar membership, at a cost you can afford (free). The Googlelike search bar is conveniently located at the top of every page, inviting you to conduct your search using either simple or complex search language. Once the results are delivered, Casemaker offers an intuitive ‘search-within-a-search-capability’ to further narrow the results.

Casemaker is filled with organizational features that make it more than just a research library with a fast search engine. With Casemaker you can create individual folders to store your research, and they can be renamed, reorganized, or deleted with just a few clicks. And, with its notes feature, Casemaker makes it possible to write, post, and save notes directly to the documents being viewed.

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The Journal of the Kansas Bar Association

Casemaker carries annual archived versions of state statutes for all states and the U.S. Code. Attorneys with an issue arising in the past are able to quickly and easily check the text of the law in effect at the time the issue arose.

Casemaker Libra

®

THE LEADER IN LEGAL REARCH™

*Casemaker Libra: Online Searchable Library

Casemaker Libra is an online searchable library of treatises, practice guides, coursebooks, deskbooks, and continuing legal education materials linked to the Casemaker database. Books can be purchased individually or the entire library can be downloaded. Typical links into the Casemaker system include case law, statutes, acts and administrative codes. Books can be browsed individually or searched similarly or by practice area or library. The entire Kansas Bar Association Handbook Library is available online through Casemaker Libra as a Digital Library and linked directly to the Casemaker research tool.

*CaseCheck+: Shepardizing Feature

In addition to the standard Casemaker subscription, the Kansas Bar has also added CaseCheck+ which is a sheppardizing like feature. Previously available only by subscription, CaseCheck+ allows members to quickly determine if a case is still good law through a negative citator system that rivals Shepards® and KeyCite®.

what's new with Casemaker

CasemakerDigest

*Casemaker Digest: Summaries of Appellate Decisions

The newest addition to the standard Casemaker subscription with your KBA membership is Casemaker Digest. The Digest is a summary of appellate decisions you can receive based on criteria you set. Once you log on, you set the criteria based on date decided, date added, jurisdiction, court, and judge. The Digest case summaries will be sent to you either daily or weekly, depending on which you select and only within the criteria you select.

*CiteCheck: Citation Report—Still Good Law?

Another great feature of the Casemaker bar membership bundle is CiteCheck allowing members to enhance their research. With CiteCheck, you can upload a document or brief to see whether your case citations continue to be good law. In most situations, reports are generated between 30-90 seconds after the initial document is uploaded.

Legal Research Center: Expert, On-Demand Assistance

Another feature of Casemaker available to members for an additional price (not included in the KBA membership bundle) is the Legal Research Center (LRC). Casemaker has partnered with LRC to offer members expert on-demand memoranda, brief writing, and discovery support and analysis services at a reasonable price. All contact information is located on the Casemaker platform and KBA members are offered a 10% discount on LRC services.

Legal Forms: Online Database of StateSpecific Legal Documents

Casemaker also offers KBA members a discounted rate for Legal Forms. Legal Forms are not part of your KBA membership Casemaker bundle, but they can be accessed through the Casemaker platform and are available to KBA members at a 10% discounted rate. Legal Forms is an online database of state-specific legal documents and forms.

vLex: International Primary & Secondary Legal Materials

vLex is a new product partner of Casemaker recently made available to Casemaker users. vLex provides international primary and secondary legal materials. Casemaker users may search the vLex Global Platform and receive a translated preview of their search results for free. To gain unlimited access to full text versions and downloads, a 24-hour Daily Passport may be purchased for $129, or members can select the “contact vLex button” and a representative will contact them to customize an annual subscription to their needs at a 10% discount.

CosmoLex: Practice Management Software

CosmoLex is another partner of Casemaker providing a solution for the attorney’s time management, billing, accounting, and other practice management needs/systems. Because CosmoLex is a partner of Casemaker, any Casemaker user, or KBA member, receives a discount for this product. CosmoLex is also a member benefit provider through the KBA. If you are interested in CosomoLex, contact them through the member benefit page on the KBA website and be sure to tell them you are both a Casemaker user and a KBA member to guarantee you receive all available discounts. *= Products included in the Casemaker bundle provided through your KBA Membership. All other products are available to you for an additional fee.

Have questions about any of the Casemaker products?

Contact the Casemaker Helpdesk: helpdesk@lawriter.net (877)659-0801 Contact: Sara Rust-Martin Law Practice Management Attorney at the KBA srustmartin@ksbar.org (785)234-5696

www.ksbar.org | July/August 2017 65

Portraits in Justice A Pictoral History of the Leavenworth Judiciary As profiled in the March 2017 issue of The Journal of the KBA, the Leavenworth County District Court held its public event on June 23rd to display the newly acquired judicial portraits. The new portraits were added to the district court's already impressive collection with the assistance of the Leavenworth Co. Law Library, the Leavenworth Co. Historical Society and the Dwight D. Eisenhower Library.

KBA staff took a short road trip to enjoy the program and reception which was well attended by local attorneys, judges and court staff. The presentation made by Leavenworth Co. Attorney Todd Thompson was informative and the program was well supported by displays of historical photos of Leavenworth provided by the Leavenworth Co. Historical Society.

Those in attendance were given the opportunity to see the new portraits in the collection as well as to view those hanging in other courtrooms in the Leavenworth Justice Center. It was the zenith of a painstaking project spearheaded by Thompson and Steven Crossland, with valuable guidance and support

Meg Wickham, KBA Dir. of Member and Communication Services, visits with Judge Henry W. Green, Jr., and his wife, Shirley.

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The Journal of the Kansas Bar Association

Todd Thompson Leavenworth Co. Attorney

from Chief Judge David King. Roger Marrs, deputy director of information systems for the county assisted with the PowerPoint piece of the project.

Appellate Decisions All opinion digests are available on the KBA members-only website at www.ksbar.org. We also send out a weekly newsletter informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member and market services at info@ksbar.org or at (785) 234-5696. For the full text of opinions, access the courts’ website at www.kscourts.org

Supreme Court Attorney Discipline ORDER OF DISBARMENT IN RE ALVIN R. LUNDGREN NO. 117,201—MAY 26, 2017 FACTS: Lundgren is licensed in Kansas but he resides in Utah.

Lundgren was found to have violated KRPC 1.15(a) and (d) (safekeeping property), 8.3(a) (reporting professional misconduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), Rule 207(c) (failure to report action), and Rule 208(c) (failure to notify Clerk of the Appellate Courts of a change of address). The violations stemmed from an allegation that Lundgren practiced law in California without a license. It was also alleged that Lundgren was not truthful during disciplinary proceedings in several states, and that he misappropriated client funds while practicing in Utah. Lundgren failed to notify the disciplinary administrator of discipline imposed in other states.

HEARING PANEL: The hearing panel determined that Lundgren's conduct in other states constituted a disciplinary violation in Kansas. The disciplinary administrator rejected Lundgren's request for probation and recommended that he be disbarred. The hearing panel adopted the disciplinary administrator's recommendation.

HELD: The court adopted the hearing panel's findings of fact.

Lundgren failed to appear at the hearing before the court or to provide written testimony. The court adopted the hearing panel's recommendation and ordered that Lundgren be disbarred.

ORDER OF DISBARMENT IN RE NWAKANMA NO. 116,773—JULY 7, 2017 FACTS: Nwakanma was accused of violating KRPC 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (fees), 1.15 (safekeeping of property), 1.16 (termination of representation), 3.4 (fairness to opposing party and counsel), 8.1 (bar admission and disciplinary matters), 8.4 (misconduct), and Kansas Supreme Court Rule 207 (cooperation). Nwakanma lives and practices in Texas and was accused of violating several Texas Disciplinary Rules of Professional Conduct. Nwakanma's Kansas license has been suspended on multiple occasions for failing to comply with annual requirements, and it was suspended at the time of the disciplinary hearing.

Nwakanma was never licensed independently in Texas. At the time of the hearing, Nwakanma had no active license to practice law in any jurisdiction.

HEARING PANEL: The hearing panel determined that Nwakanma's actions violated the Kansas Rules of Professional Conduct. After considering the aggravating and mitigating factors, the hearing panel recommended that Nwakanma be disbarred.

HELD: Nwakanma filed no exceptions to the hearing panel's final report, and the panel's findings of fact were deemed admitted.

Nwakanma failed to appear at the hearing before the court, despite being allowed a continuance. The court upheld the discipline of disbarment.

ORDER OF DISBARMENT IN THE MATTER OF MARK J. SCHULTZ NO. 13,619—MAY 31, 2017 FACTS: In a letter signed May 17, 2017, Schultz voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217. At the time he surrendered his license, a complaint had been docketed with the office of the Disciplinary Administrator for investigation. The complaint alleged violations of KRPC 1.15 (safekeeping property) and 8.4(b) and (c) (misconduct).

HELD: The court examined the files of the office of the Disciplinary Administrator and found that the surrender of Schultz' license should be accepted, and that he should be disbarred.

PUBLISHED CENSURE IN RE JEFFERY A. SUTTON NO. 117,357—MAY 26, 2017 FACTS: Sutton was accused of violating KRPC 1.4(b) (communication), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The complaint related to Sutton's conduct with his client in a post-divorce matter.

HEARING PANEL: The panel acknowledged that Sutton's client was difficult. And Sutton fully complied with the investigation and produced good character letters from colleagues. The disciplinary administrator asked for a short suspension. Sutton's counsel asked for an informal admonition. The hearing panel recommended public censure.

HELD: The court adopted the hearing panel's findings and conclusions. After finding that Sutton's conduct was negligent the court imposed discipline of public censure.

ORDER OF DISBARMENT IN THE MATTER OF DANIEL A. WILLIAMS NO. 18,779—MAY 31, 2017 FACTS: In a letter signed May 22, 2017, Williams voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217. At the time he surrendered his license, the office of the Disciplinary Administrator had filed a formal complaint alleging violations of KRPC 1.1 (competence), 1.3 (diligence), 1.5 (fees), 1.15 (safekeeping property), 1.16 (terminating representation), 8.1 (disciplinary matters), 8.4 (misconduct), and Supreme Court Rule 207 (cooperation).

HELD: The court examined the files of the office of the Disciplinary Administrator and found that the surrender of Williams' license should be accepted, and that he should be disbarred.

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appellate decisions

Civil CONSTITUTIONAL LAW—CRIMINAL LAW—JUVENILE JUSTICE CODE—SENTENCING IN THE MATTER OF A.D.T. WYANDOTTE DISTRICT COURT—AFFIRMED NO. 114,834—JUNE 2, 2017 FACTS: In an Extended Juvenile Jurisdiction Prosecution (EJJP) of charges against a13-yr old, A.D.T. pled guilty to first-degree premeditated murder. District judge imposed juvenile sentence with substance abuse evaluation, and a hard-25 adult sentence which was statutorily stayed conditioned upon A.D.T’s successful completion of the juvenile sentence. A.D.T. completed the incarceration portion of the juvenile sentence without receiving the court-recommended substance abuse treatment, and was placed on conditional release which he violated twice by testing positive for drugs. District court revoked A.D.T.’s juvenile sentence and imposed the adult life sentence. A.D.T. appealed, arguing manifest injustice to impose life sentence for dirty UA’s, and claiming he did not receive proper notice of what conduct would cause the district court to invoke the adult sentence.

ISSUE: Violating conditional release in an extended jurisdiction juvenile prosecution HELD: EJJP statutes were reviewed. District judge correctly held she had no discretion to modify the revocation of A.D.T.’s juvenile sentence, and that she was required to execute A.D.T.’s adult sentence and transfer jurisdiction to the adult criminal court. There was no application of the manifest injustice concept to a nondiscretionary, statutorily required judicial order where constitutionality of underlying statute was not challenged. And facts in case did not support a due process claim of being denied fair notice. On issues raised in the appeal, district court was affirmed.

CONCURRENCE (Rosen, J.): Concurred in the result, but identified and discussed areas of concern not raised in this case, including the possibility that the EJJP sentence or the failure to provide substance abuse treatment resulted in Eighth Amendment violations, and the possibility that the failure to provide substance abuse treatment resulted in a Fourteenth Amendment violation or necessitated reconsideration of A.D.T.’s original sentence. Recent changes to EJJP statutes were noted which would have exempted A.D.T. from the adult sentence, made it unlikely the juvenile sentence would have ben revoked for dirty UA’s, or even if still subject to EJJP, the judge would have had authority to reconsider terms of that adult sentence before its imposition.

STATUTES: K.S.A. 2016 Supp. 38-2347(a)(1), -2364(a)(2), -2364(b); K.S.A. 2015 Supp. 22-3601(b), 38-2301, -2361(a), -2364(a)(1), -2364(a)(2), -2364(b); K.S.A. 2013 Supp. 38-2364; K.S.A. 2007 38-2301 et seq., -2347(f )(2), -2369(a)(1)(A) CIVIL PROCEDURE—STATUTE OF LIMITATIONS LOZANO V. ALVAREZ FORD DISTRICT COURT—COURT OF APPEALS IS AFFIRMED—DISTRICT COURT IS AFFIRMED NO. 113,060—MAY 26, 2017 FACTS: Lozano filed a tort action against the Alvarezes. That ac68

The Journal of the Kansas Bar Association

tion was dismissed for lack of prosecution. Using the saving statute, the action was re-filed and then dismissed again for lack of prosecution. Lozano filed a third action, again relying on K.S.A. 60-518 to save the filing. The district court granted the Alvarezes' motion to dismiss, finding that K.S.A. 60-518 may only be used once. The Court of Appeals affirmed the dismissal and the Supreme Court accepted review.

ISSUE: May K.S.A. 60-518 be applied more than once HELD: K.S.A. 60-518 may not be invoked after the expiration of 6 months following the dismissal of the original action that was filed within the statute of limitations. The savings statute does not modify the statute of limitations or create a new one, it merely tolls the statute of limitations under certain circumstances in order to allow for a decision on the merits.

STATUTE: K.S.A. 60-518 ATTORNEYS—DAMAGES CONSOLVER V. HOTZE SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED, DISTRICT COURT IS AFFIRMED NO. 110,483—JUNE 9, 2017 FACTS: This case was a fee dispute between attorneys Bradley Pistotnik and Stephen Brave. Each represented Consolver at different stages of her legal action. Pistotnik handled the case through discovery and mediation under a contingency fee agreement. The parties reached an agreement for a $300,000 settlement if Consolver could show that further medical treatment was necessary. But before that settlement was finalized, Pistotnik was dismissed as counsel.

Pistotnik filed an attorney lien to recover fees plus his portion of the $300,000 settlement. Brave eventually settled the case for $360,000 but there was no agreement about how to satisfy Pistotnik's lien. The district court awarded $86,944.27 in attorney fees and $10,156.81 in expenses. The Court of Appeals reversed, finding that the district court's quantum meruit payment was fundamentally incompatible with a contingency fee. The Supreme Court granted review.

ISSUE: Consideration of the value of Pistotnik's services in light of the contingency fee agreement HELD: An attorney employed under a contingency fee contract who is discharged without cause is limited to a quantum meruit recovery for the reasonable value of services rendered. The district court's decision was not an abuse of discretion.

STATUTE: K.S.A. 2016 Supp. 7-121b

HABEAS CORPUS—INEFFECTIVE ASSISTANCE OF COUNSEL BOGGUESS V. STATE SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED NO. 111,299—JUNE 9, 2017 FACTS: Bogguess was convicted of multiple high-level felonies after he requested a bench trial on stipulated facts. The district court engaged in a thorough colloquy with Bogguess to verify that the decision to waive a jury trial was made freely and voluntarily. On the morning of sentencing, Bogguess filed a motion to dismiss counsel, claiming ineffective assistance. It was denied, and Bogguess' convic-

appellate decisions

tions were affirmed on direct appeal. Bogguess subsequently filed a K.S.A. 60-1507 motion in which he again alleged ineffective assistance of counsel. The motion was summarily denied and the Court of Appeals affirmed. The Supreme Court granted review.

ISSUES: (1) Res judicata as a bar to raising claims; (2) analysis of the claim on the merits HELD: Bogguess' collateral action raising claims of ineffective assistance is not barred by res judicata because the issues raised were not litigated on direct appeal. But the Court of Appeals correctly concluded that Bogguess' claim fails on the merits because he cannot demonstrate prejudice.

STATUTE: K.S.A. 60-1507

Criminal JURY INSTRUCTIONS—NEW TRIAL STATE V. ASHLEY JOHNSON DISTRICT COURT—AFFIRMED NO. 114,052—JUNE 23, 2017 FACTS: Investigation by law enforcement implicated Ashley in the murder of a business owner. After a jury trial, Ashley was convicted of first-degree murder and attempted aggravated robbery.

Ashley appealed.

ISSUES: (1) Necessity of a cautionary jury instruction for testimony from a prison informant; (2) motion for new trial; (3) use of a limiting instruction HELD: The prison witness was not acting as an agent of the state at the time Ashley's comments were made, meaning a limiting instruction was not required. Newly discovered evidence that tends merely to discredit a witness' testimony is not grounds for a new trial. And the evidence Ashley relied on was not credible and would not have resulted in a different verdict. The limiting instruction given by the district court was appropriate given the evidence that was introduced at trial.

STATUTE: K.S.A. 60-455

CRIMINAL PROCEDURE—SENTENCING STATE V. BAILEY JOHNSON DISTRICT COURT—AFFIRMED AND REMANDED WITH DIRECTIONS NO. 112,888—MAY 19, 2017 FACTS: Bailey was convicted of first-degree felony murder and sentenced to a term of life imprisonment. The district court also set a restitution amount of $37,521.07. Bailey's conviction was affirmed on direct appeal and he has had numerous other appeals relating to his sentence. This appeal comes after Bailey filed a motion to find that his restitution judgment was dormant and that any funds already paid should be reimbursed to him. He also appeals the denial of his motion to correct illegal sentence.

ISSUES: (1) Was restitution wrongly collected; (2) Is Bailey's sentence illegal HELD: The sentencing court merely provided an advisory calculation of restitution for the parole board to consider, rather than

an enforceable judgment of restitution. Because there was no order, the dormancy statutes do not apply. But a clerical error triggered the wrongful collection of Bailey's money, and the case must be remanded to correct that error which is affecting the current collection of restitution from Bailey. Bailey's offenses were properly classified and his sentence is not illegal.

STATUTES: K.S.A. 2013 Supp. 60-2403; K.S.A. 1993 Supp. 213401(b), -3427; K.S.A. 1991 Supp. 21-4603; K.S.A. 1986 Supp.

21-4603; K.S.A. 22-3504, 60-2403, -2404 CONSTITUTIONAL LAW—CRIMINAL LAW—SEARCH AND SEIZURE STATE V. BAKER DOUGLAS DISTRICT COURT—REVERSED AND REMANDED—COURT OF APPEALS—REVERSED NO. 111,915—JUNE 9, 2017 FACTS: As police approached to arrest Baker on outstanding warrants, he dropped his backpack. Backpack was seized and searched at the scene and again in evidence room, needles and methamphetamine were found. Baker filed motion to suppress, claiming no probable cause to search the backpack. He also claimed the contraband would not have been inevitably found in an inventory search, and officers did not have lawful custody of backpack at time of inventory search. District court conducted a suppression hearing and found officers did not have probable cause to conduct a warrantless search of the backpack, but evidence was admissible because it would have been inevitably discovered through a valid inventory search. Baker was convicted of possession of methamphetamine and possession of drug paraphernalia. He appealed the denial of his motion to suppress. Court of Appeals affirmed in unpublished opinion.

Baker’s petition for review granted.

ISSUE: Fourth amendment - inventory search HELD: District court erred in denying motion to suppress. Seizure of the backpack was reasonable under totality of circumstances, but state failed to present any evidence of standardized criteria or an established routine governing the opening of closed containers during inventory search. State thus failed to prove by a preponderance of evidence that the contraband would have been inevitably discovered. Reversed and remanded.

STATUTES: None CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— STATUTES STATE V. COLLIER SEDGWICK DISTRICT COURT—AFFIRMED NO. 114,304—JUNE 2, 2017 FACTS: Collier was convicted of 1993 aggravated robbery. In calculating criminal history under the Kansas Sentencing Guidelines Act (KSGA), sentencing court classified three prior “residential burglary” offenses as person felonies. Collier filed motion to correct an illegal sentence, claiming the offenses were misclassified. District court summarily denied relief. Collier appealed, arguing his pre-KSGA residential burglary offenses should be reclassified as nonperson offenses under State v. Murdock, 299 Kan. 312 (2014), and State v.

Dickey, 301 Kan. 1018 (2015)(Dickey I). He also claimed application of the person/nonperson classification to pre-KSGA offenses violated Apprendi, and the district court’s summary denial of his mowww.ksbar.org | July/August 2017 69

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tion violated his statutory right to a hearing.

ISSUES: (1) Reclassification of residential burglary offenses, (2) person/nonperson classification, (3) summary denial of motion HELD: State v. Keel, 302 Kan. 560 (2015), overruled Murdock.

Based on Keel, Collier’s argument that Murdock should be extended to control the classification of his in-state pre-KSGA offenses fails.

Applying Keel, the sentencing court properly classified Collier’s residential burglary offenses as person felonies because at the time of his current offenses, the Kansas offense comparable to the prior offenses was classified as a person crime. And Collier’s pre-KSGA conviction and adjudications were for violations of K.S.A. 21-3716 - not K.S.A. 21-3715 as in Dickey I. The impermissible judicial fact-finding present in Dickey I did not occur in Collier’s case.

Collier’s Apprendi claim had no merit. The person-crime classification generally does not require the type of historical fact-finding ordinarily at issue in Apprendi cases.

Motions, records, and files in the present case conclusively show that Collier was entitled to no relief on his claim that K.S.A. 223504(1) granted him the right to a hearing at which he was entitled to be personally present and to have assistance of counsel.

STATUTES: K.S.A. 2016 Supp. 22-3601(b)(3), -6810(d), -6810(e); K.S.A. 2014 Supp. 21-6811(d); K.S.A. 21-3715, -4710(d)(2), 22-3504(1); K.S.A. 1993 Supp. 21-3716, -4701et seq., -4711(d); K.S.A. 21-3716 (Ensley 1988) EVIDENCE—JURY INSTRUCTIONS—PROSECUTORIAL MISCONDUCT STATE V. DAVIS SHAWNEE DISTRICT COURT—AFFIRMED IN PART AND REVERSED IN PART NO. 113,537—MAY 19, 2017 FACTS: Davis was arrested for the murder of 8-year-old, A.I. He was apprehended and taken to the police station. After an interrogation which detectives alleged was consensual, Davis admitted to multiple burglaries and also confessed that he beat, choked, and raped A.I. before putting her in the clothes dryer where she was found. Davis denied that he intended to kill her and expressed surprise that she was dead. Davis was convicted of multiple counts, including capital murder and rape. The jury declined to impose the death penalty.

ISSUES: (1) Was there sufficient evidence of premeditation; (2) was Davis prejudiced by prosecutorial misconduct; (3) was Davis' confession properly viewed as voluntary; (4) were the jury instructions erroneous; (5) were convictions for capital murder and rape multiplicitious HELD: In order to prove lack of premeditation, Davis must establish that evidence supporting the State's theory was legally insufficient. Death by strangulation presents strong evidence of premeditation. The prosecutor misstated the law during closing argument and injected error into the trial. Because of the ample evidence at trial, the error did not affect the trial's outcome. And if Davis meant to rely on a voluntary intoxication theory, he had the burden to prove impairment. The record supports the district court's decision not to suppress Davis' confession. The jury was instructed on unanimity in a separate instruction, rendering Davis' requested instruction unnecessary. Because the jury was properly instructed, there was no error in refusing a jury instruction that would merely have added emphasis. Because Davis was convicted of capital murder for 70

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a killing caused during commission of or subsequent to rape, his conviction for rape is multiplicitious and must be reversed.

STATUTES: K.S.A. 2016 Supp. 60-261; K.S.A. 2011 Supp. 215401(a)(4), -5401(a)(7), -5402(a)(1) HABEAS CORPUS—PRO SE LITIGANTS STATE V. DITGES SEDGWICK DISTRICT COURT—AFFIRMED NO. 113,775—MAY 26, 2017 FACTS: Ditges filed a motion to correct illegal sentence in district court, claiming that his sentence was illegal because the district court failed to include a required jury instruction. After that motion was summarily denied, Ditges appealed.

ISSUE: Was the district court required to construe Ditges' motion as a request for relief under K.S.A. 60-1507?

HELD: Ditges' clear citation to K.S.A. 22-3504(1) and his knowledge about time limitations shows that he was attempting to correct an illegal sentence. And Ditges' motion to reconsider reiterated that he sought only to change his sentence, not his conviction.

These actions are not consistent with a K.S.A. 60-1507 motion.

Had the motion been construed as one filed under K.S.A. 60-1507, Ditges was not entitled to relief. The motion was filed well outside of the statutory time limit and there was no allegation of manifest injustice. And there is little chance that Ditges would have been able to succeed on the merits of his argument.

STATUTES: K.S.A. 2016 Supp. 60-1507(d); K.S.A. 22-3414(3), -3504, -3504(1), 60-1507, -1507(f ) CRIMINAL PROCEDURE STATE V. DONALDSON SEDGWICK DISTRICT COURT - REVERSED AND REMANDED NO. 114,032 - JUNE 2, 2017 FACTS: Donaldson was convicted of first-degree felony murder and sale of cocaine. Sentence was imposed under the Kansas Sentencing Guidelines Act (KSGA) based on a criminal history that included a 1990 felony burglary adjudication which district court classified as a person crime. Donaldson filed motion to correct an illegal sentence, claiming error in that classification under State v.

Dickey, 301 Kan. 1018 (2015)(Dickey I). District court summarily denied relief. Donaldson appealed.

ISSUE: Person/nonperson classification of pre-KSGA offenses HELD: Burglary statute at time of Donaldson’s 1990 juvenile adjudication did not require proof the crime involved a “dwelling.”

Sentencing court’s conclusion that it did so resulted in a higher criminal history score than otherwise would have applied. Sentence imposed based on this erroneous criminal history score was illegal.

District court’s summary denial of relief was reversed. Based on Dickey I, Donaldson’s sentence for the sale of cocaine was reversed and remanded with directions to reclassify the 1990 burglary adjudication as a nonperson felony. State’s arguments for why Dickey I should not dictate outcome of this case were reviewed and rejected.

STATUTES: K.S.A. 2016 Supp. 22-3601(b)(3); K.S.A. 21-3715, -3715(a), -4701 et seq., -4705, -4705(a), -4705(d), -4709, 223504(1), 65-4161(a); K.S.A. 2002 Supp. 21-4711(d); K.S.A. 1990 Supp. 21-3715

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CONSTITUTIONAL LAW—CRIMINAL PROCEDURE SEARCH AND SEIZURE—SENTENCES STATE V. HACHMEISTER SHAWNEE DISTRICT COURT—AFFIRMED COURT OF APPEALS—AFFIRMED NO. 112,260—JUNE 17, 2017 FACTS: Police obtained search warrants during investigation of the murder of Hachmeister’s mother. Discovery of pornographic images of apparently prepubescent children during search of Hachmeister’s computer resulted in his conviction on 105 counts of sexual exploitation of a child. Sentence imposed included lifetime registration as a sex offender, based on district court finding the victims in the images were under 14 years old. Hachmeister appealed, claiming in part the district court erred in denying Hachmeister’s motions to suppress the recovered images, and claiming the sex offender registration requirement violated Apprendi. Court of Appeals affirmed in unpublished opinion. Hachmeister’s petition for review granted on two issues: (1) whether evidence from his computer should have been suppressed because it was not properly within the scope of search warrants issued during the homicide investigation; and (2) whether the district court violated Apprendi when it made the factual finding the victims were under 14 years old.

ISSUES: (1) Search warrants , (2) lifetime registration as sex offender HELD: All search warrants issued were reviewed. Hachmeister failed to preserve his challenge to three of them. The affidavit supporting a fourth warrant provided a sufficient basis for the district court to conclude there was a fair probability that evidence related to the murder might be found on Hachmeister’s computer. Because probable cause supported that warrant, it did not taint the remaining warrant being challenged.

As decided in State v. Petersen-Beard, 304 Kan. 192 (2016), lifetime sex offender registration is not punishment for constitutional purposes, thus the finding that the victims were under 14 years old did not expose Hachmeister to an increased penalty within the meaning of Apprendi.

DISSENT: (Beier, J., joined by Rosen and Johnson, JJ.): Dissents from majority’s holding that lifetime sex offender registration is not punishment.

STATUTE: K.S.A. 22-4901 et seq., 60-2101(b) CRIMINAL PROCEDURE—STATUTES STATE V. KINGSLEY SEDGWICK DISTRICT COURT—AFFIRMED NO. 114,468—JUNE 2, 2017 FACTS: Kingsley was convicted of first-degree premeditated murder for a 1991 killing. District court imposed hard-40 sentence recommended by jury. Conviction and sentence were affirmed on direct appeal. Kingsley filed 2014 motion to correct an illegal sentence, seeking conversion of indeterminate sentences to grid sentences under Kansas Sentencing Guidelines Act (KSGA). He also claimed error in his presentence investigation (PSI) report as listing Florida convictions that never occurred. District court ordered correction to the PSI, but decided resentencing was unnecessary because an illegal sentence was not created by the error. Kingsley appealed, arguing the sentencing court’s mistaken view of Kingsley’s criminal history rendered his sentence illegal, and he was denied due process because of the erroneous PSI.

ISSUES: (1) Legality of sentence, (2) constitutional claim HELD: Kingsley’s hard-40 sentence conforms to the then-controlling statutory provision, and was not an illegal sentence. The hard-40 sentencing determination in Kingsley’s case did not turn on his criminal history classification, and Kingsley’s reliance on cases involving direct appeals from sentences imposed under the KSGA was misplaced.

Kingsley’s due process claim is not cognizable in a motion to correct an illegal sentence.

STATUTES: K.S.A. 2016 Supp. 22-3601(b)(2), -3601(b)(3); K.S.A. 21-4606, -4701 et seq., 22-3504, -3504(1); K.S.A. 1991 Supp. 21-4624(6), -4628 CRIMINAL LAW—SENTENCING—STATUTES STATE V. LEE SEDGWICK DISTRICT COURT—AFFIRMED NO. 114,336—JUNE 9,2017 FACTS: Prior to the July 1993 effective date of Kansas Sentencing Guidelines Act (KSGA), Lee committed January 1993 crimes of first-degree murder, aggravated kidnapping, kidnapping, and aggravated assault. He was convicted of all four crimes. Sentencing court in 1995 applied the pre-KSGA sentencing statute applicable at the time Lee committed the crimes. Lee filed 2014 motion to correct an illegal sentence, seeking conversion of his sentences to grid sentences under the KSGA. District court summarily denied the motion. On appeal Lee argued his pre-KSGA crimes must be considered conversion eligible under rationale underlying State v. Murdock, 299 Kan. 312 (2014), and district court’s summary denial of Lee’s motion denied him his statutory right to a hearing under K.S.A. 22-3504.

ISSUES: (1) Pre-KSGA sentence conversion, (2) summary disposition HELD: District court did not err in denying Lee’s motion. Murdock was overruled by State v. Keel, 302 Kan. 560 (2015), and State v. Jeffries, 304 Kan. 748 (2016), defeats Lee’s argument that the post-KSGA severity level of Lee’s crimes could not be used to deny conversion because there were no severity level designations at the time he committed his offense.

District court’s summary denial of Lee’s motion was not error because record conclusively shows he was not entitled to relief.

STATUTES: K.S.A. 2016 22-3601(b)(2); K.S.A. 21-3401, -3410, -3420, -3421, -4711(e), -4724, -4724(b)(1), -4724(c)(1), -4724(f ), 22-3504, -3504(1); K.S.A. 1993 Supp. 21-4701 et seq., -4706(c) CONTEMPT—JURIES—JURISDICTION IN RE MCDANIEL SEDGWICK DISTRICT COURT—REVERSED AND REMANDED NO. 115,614—JUNE 9, 2017 FACTS: McDaniel was summoned for jury duty, and she timely appeared on the appointed day. She was not seated on the first day, and was told to appear at 8:45 the next morning. Prior to that time, McDaniel called to advise the jury clerk that she had child care difficulties. She offered to either come later in the day or bring her son with her. The jury clerk told McDaniel that she had no option other than to timely appear without her son. McDaniel appeared in the afternoon as promised. At that time, the jury clerk informed www.ksbar.org | July/August 2017 71

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McDaniel that she was to appear at a hearing scheduled three days later to explain why she was late. At that hearing, where McDaniel appeared without counsel, the district court found her in direct contempt of court and imposed a six-month jail sentence with work release after 30 days. McDaniel's mother obtained counsel for her, but counsel had a difficult time entering an appearance because the file was sealed. Four days after she was jailed, the district court summoned McDaniel back to chambers. Her sentence was commuted to time served and she was released. She appealed.

ISSUES: (1) Jurisdiction; (2) sufficiency to prove direct contempt HELD: McDaniel's appeal was dismissed by the district court for failure to docket. Instead of filing a motion to reinstate, counsel filed a motion to docket out of time. That error was not jurisdictional, since appellate court rules governing procedure are not jurisdictional. Because McDaniel's notice of appeal was timely, the court may hear McDaniel's substantive arguments. McDaniel's failure to timely appear for jury duty did not constitute direct criminal contempt but, perhaps, indirect criminal contempt. And the proceedings in district court violated some of McDaniel's constitutional rights.

And the district court did not properly complete the required journal entry. McDaniel's conviction had to be vacated.

STATUTE: K.S.A. 2016 Supp. 20-1204a(a), -1204a(d), 223608(c); K.S.A. 20-1201, -1202, -1203, 43-165 APPEALS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—SEARCH AND SEIZURE— STATUTES STATE V. NECE SALINE DISTRICT COURT—AFFIRMED; COURT OF APPEALS—REVERSED AFFIRMED ON REHEARING NO. 11,140—JUNE 30, 2017 FACTS: Nece filed motion to suppress breath blood-alcohol test results, arguing the officer coerced Nece’s consent to the testing by advising him, pursuant to K.S.A. 2016 Supp. 8-1025, he could be charged with a crime for refusing testing. District court agreed and suppressed the evidence as resulting from an involuntary consent.

Court of Appeals reversed in unpublished opinion. Kansas Supreme Court affirmed the district court’s decision, applying the holding in State v. Ryce, 303 Kan. 899 (2016 (Ryce I), that K.S.A. 2016 Supp.

8-1025 was unconstitutional. State v. Nece, 303 Kan. 888 (2016) (Nece I). Mandates in Ryce I and Nece I were stayed pending U.S. Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). Rehearings in the Ryce and Nece appeals were then held with additional briefs and arguments. Opinion in Ryce II, decided this same date, modified the analysis in Ryce I but reaffirmed its holding that K.S.A. 2016 Supp. 8-1025 was unconstitutional.

ISSUE: Effect of Birchfield on Nece I HELD ON REHEARING: Nothing in Birchfield or Ryce II requires modification of Nece I. Under totality of circumstances in this case, Nece’s consent was involuntary because it was obtained by means of an inaccurate and coercive advisement.

DISSENT (Stegall, J.): Dissented for reasons stated in his dissent in Ryce I. STATUTE: K.S.A. 2016 Supp. 8-1001, -1001(k), -1025

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EVIDENCE—JURY INSTRUCTIONS STATE V. PEREZ SEDGWICK DISTRICT COURT—AFFIRMED 114,554—JUNE 23, 2017 FACTS: Perez lived in a compound in Wichita with followers who were forced to follow his will. The group was financed primarily by life insurance proceeds following the death of group members. After a group member's boyfriend alerted authorities, Perez was charged with one count of first-degree murder and multiple counts of rape, aggravated criminal sodomy, and offering a false statement.

ISSUES: (1) Admission of out-of-court statements; (2) assisted suicide instruction; (3) admission of prior crime evidence; (4) appropriateness of requested limiting instructions HELD: Testimony from an investigating detective was not offered for the truth of the matter asserted. And even if admission of any of the evidence was erroneous, that error was harmless. Most of the testimony was duplicative of other testimony that was not challenged. The facts of this case do not support a jury instruction for assisting suicide as there was no evidence that the victim attempted to take her own life. The prior crime evidence was more probative than prejudicial, and the district court gave an appropriate limiting instruction. The limiting instructions were clearly tailored to appropriately instruct the jury.

STATUTES: K.S.A. 2016 Supp. 21-5407; K.S.A. 2015 Supp.

60-261, -455, -455(a),-455(b), -455(c),-455(d), -460

APPELLATE PROCEDURE—GUILTY PLEA STATE V. REU-EL SHAWNEE DISTRICT COURT—AFFIRMED NO. 113,799—MAY 26, 2017 FACTS: After entering a no contest plea but prior to sentencing, Reu-El filed a motion to withdraw his plea, claiming that the district court lacked jurisdiction because of a double jeopardy defense. After that motion was denied, he appealed.

ISSUE: Whether it was error to deny the motion to withdraw guilty plea?

HELD: The root of Reu-El's complaint is whether he was misinformed about whether he could continue to raise a double jeopardy claim on appeal after entering a no contest plea. A court considering a motion to withdraw plea should look at the entire plea process, including the written agreement, counsel's advice, and the plea colloquy before the court, to see whether the plea was entered voluntarily.

The written plea agreement did not contain any misinformation and the colloquy also gave Reu-El accurate information. Nothing in the record suggests that counsel misled Reu-El regarding his appellate rights.

STATUTE: K.S.A. 2016 Supp. 22-3208(4), -3210(a), -3210(d) (1), -3210(d)(2), -3602(a) EVIDENCE—JURY SELECTION— STATUTORY INTERPRETATION STATE V. ROBINSON SHAWNEE DISTRICT COURT—AFFIRMED NO. 113,684—MAY 26, 2017 FACTS: Robinson was charged with premeditated first-degree murder, aggravated burglary, and misdemeanor theft, and a jury

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found him guilty of all charges. He received a hard 50 life sentence and appealed a variety of trial and sentencing errors.

ISSUES: (1) Exclusion of evidence regarding other online postings by the victim; (2) prosecutorial misconduct; (3) sufficiency of the aggravated burglary evidence; (4) Imposition of the hard 50 life sentence; (5) limitation on voir dire; (6) adequacy of sentencing notice HELD: Evidence of the victim's willingness to have sex on first dates was not material to Robinson's defense. The state never attempted to prove that Robinson committed rape. The use of the word "strangulation" does not require that the victim died of strangulation but merely implies a hand placement that restricts breathing. This made the prosecutor's statements consistent with the evidence. The prosecutor's comments on premeditation were consistent with the law. The prosecutor's passing reference to Santa Claus bore little weight and was unlikely to have distracted the jury or jeopardized the verdict. In order to support a verdict for aggravated burglary the "human being" referenced in the statute must be alive.

Here, the jury found that the victim was still alive when Robinson formed the intent to steal her possessions. Retroactive application of K.S.A. 21-6620 does not violate the ex post facto clause. There is no constitutional right to case-specific mitigation questioning during voir dire. The statute requires the prosecutor to give "reasonable" notice that a hard 50 sentence will be sought. The notice provided by the prosecution in this case was reasonable.

CONCURRENCE AND DISSENT: (Johnson, J.) would reverse Robinson's conviction for aggravated burglary because of the lack of proof that Robinson remained in the house without authority.

STATUTES: K.S.A. 2013 Supp. 21-5807, -6620(c)(1), -6620(d); K.S.A. 21-6620, 22-3408(3), 60-401(b)

APPEALS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—SEARCH AND SEIZURE - STATUTES STATE V. RYCE SEDGWICK DISTRICT COURT—AFFIRMED AFFIRMED ON REHEARING NO. 111,698—JUNE 30, 2017 FACTS: Ryce was charged with violating K.S.A. 2016 Supp.

8-1025(a) for refusing to submit to testing for blood alcohol content. On appeal, he challenged the constitutionality of 8-1025. State v. Ryce, 303 Kan. 899 (2016) (Ryce I), held the statute was facially unconstitutional because it punished an individual’s withdrawal of consent to search. Mandate was stayed on state’s motion, pending United State’s Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). Motions for rehearing granted, and parties allowed to submit additional briefs and oral arguments.

ISSUE: Effect of Birchfield on Ryce I HELD: Ryce I is modified, pursuant to Birchfield, to reflect the validity of conducting a breath test in a DUI case where the arrest is made under the warrant exception of a search incident to a lawful arrest. But the holding in Ryce I is reaffirmed. K.S.A. 2016 Supp. 8-1025, which is premised on the consent exception alone, is facially unconstitutional.

DISSENT (Stegall, J.): Dissented for reasons stated in his dissent in Ryce I. STATUTE: K.S.A. 2016 Supp. 8-1001, -1001(a), -1001(b), -1001(b)(1)(B), -1001(b)(2), -1001(c), -1001(d), -1001(k), -1013, -1013(b)(1), -1013(i), -1001(j), -1025, -1025(a)

CONSTITUTIONAL LAW—CRIMINAL LAW— SENTENCING—STATUTES STATE V. SIMS SEDGWICK DISTRICT COURT—AFFIRMED NO. 114,008—JUNE 9, 2017 FACTS: Sims was convicted on 1995 aggravated battery. District court imposed sentence under Kansas Sentencing Guidelines Act (KSGA), classifying a 1992 juvenile adjudication for aggravated assault as a person felony. Sims filed a 2015 motion to correct an illegal sentence, arguing the sentencing court used an incorrect criminal history score because the 1992 juvenile adjudication should have been classified as a nonperson offense under State v. Murdock, 299 Kan. 312 (2014). District court summarily denied relief. Sims appealed claiming: (1) error in the classification of the 1992 juvenile adjudication; (2) the person/nonperson classification of pre-KSGA offenses violated Apprendi case law; and (3) district court’s summary dismissal denied Sims his statutory right to a hearing under K.S.A. 22-3504.

ISSUES: (1) Classification of the pre-KSGA offense, (2) apprendi—person/nonperson classification, (3) summary disposition HELD: Murdock was overruled by State v. Keel, 302 Kan. 560 (2015). Applying Keel, the sentencing court properly classified Sims’ pre-KSGA aggravated assault adjudication as a person felony.

Sims’ Apprendi argument was defeated by State v. Collier, 306 Kan. __ (June 2, 2017).

District court’s summary denial of the motion was not error because record in case conclusively showed Sims was not entitled to relief.

STATUTES: K.S.A. 2016 Upp. 21-6810(d), -6810(e), 223601(b)(3); K.S.A. 21-3410, -4710(d)(2), -4710(d)(6), 22-3504, -3504(1); K.S.A. 1994 Supp. 21-4701 et seq.; K.S.A. 21-3410 (Ensley 1988) APPEALS—CIVIL PROCEDURE—CRIMINAL PROCEDURE STATE V. SWAFFORD SALINE DISTRICT COURT—AFFIRMED NO. 114534—JUNE 2, 2017 FACTS: Swafford was sentenced in 1993 to life sentence for felony murder and 15 years to life for aggravated robbery, with sentences to be served consecutively to each other and to sentences imposed in separate cases in Saline and Geary counties. Convictions and sentences were affirmed on direct appeal. Swafford filed fourth motion to correct an illegal sentence, arguing that the district judge’s pronouncement of consecutive sentences was ambiguous, and district judge was prohibited from ordering consecutive service of sentence to underlying Geary County that had pending probation revocation proceeding. District court summarily denied the motion. Swafford then filed motion for additional findings. District court denied the motion and cancelled the hearing date that had been set. Swafford appealed the next day, arguing the district court erred in denying the motion to correct an illegal sentence, and denied Swafford due process when it cancelled the scheduled hearing on the motion for additional findings. State challenged appeal as untimely filed.

ISSUES: (1) Appellate jurisdiction, (2) legality of sentence HELD: Swafford timely filed his appeal. No support for 14-day limit cited by the state. As in K.S.A. 60-1507 proceedings, Swafford had 30 days to appeal from entry of judgment. Under facts in this www.ksbar.org | July/August 2017 73

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case, Swafford timely filed a motion for additional findings of fact within 28 days, which tolled the time for filing an appeal. When district court denied the motion for additional findings, Swafford had 13 days to appeal the denial of his motion to correct an illegal sentence.

District court’s summary denial of motion to correct an illegal sentence was affirmed. Under facts in case, there was no ambiguity in Swafford’s sentence, and district court had discretion to impose sentence while Swafford’s probation revocation proceeding was pending in Geary county.

STATUTES: K.S.A. 2016 Supp. 22-3608(c), 60-252, -259, -2103(a); K.S.A. 21-4608(f )(3), 22-3504, -3606, 60-1507; K.S.A. 21-4501(a), -4501(b) (Ensley 1988); K.S.A. 1980 Supp. 21-4608(2) APPEALS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—SEARCH AND SEIZURE - STATUTES STATE V. WILSON SHAWNEE DISTRICT COURT—AFFIRMED AFFIRMED ON REHEARING NO. 112,009—JUNE 30, 2016 FACTS: Wilson was charged with violating K.S.A. 2016 Supp.

8-1025. District court considered Wilson’s challenge to the constitutionality of that statute, and dismissed the charge. The Kansas Supreme Court affirmed, applying holding in State v. Ryce, 303 Kan. 888 (2016 (Ryce I), that K.S.A. 2016 Supp. 8-1025 was facially unconstitutional. State v. Wilson, 306 Kan. __ (2016)(Wilson I).

Mandates in Ryce I and Wilson I were stayed pending U.S. Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). Rehearings in the Ryce and Wilson appeals were then held with additional briefs and arguments. Opinion in Ryce II, decided this same date, modified the analysis in Ryce I but reaffirmed its holding that K.S.A. 2016 Supp. 8-1025 was unconstitutional.

ISSUE: Effect of Birchfield on Wilson I HELD: For the reasons set forth in Ryce I and Ryce II, district court’s dismissal of the charge against Wilson was affirmed.

DISSENT (Stegall, J.): Dissented for reasons stated in his dissent in Ryce I. STATUTE: K.S.A. 2016 Supp. 8-1001, -1025 APPEALS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—SEARCH AND SEIZURE— STATUTES STATE V. WYCOFF SALINE DISTRICT COURT—AFFIRMED AFFIRMED ON REHEARING NO. 110,393—JUNE 30, 2017 FACTS: Wycoff was charged with violating K.S.A. 2016 Supp.

8-1025. District court considered Wycoff’s challenge to the constitutionality of that statute, and dismissed the charge. The Kansas Supreme Court affirmed, applying holding in State v. Ryce, 303 Kan. 888 (2016 (Ryce I), that K.S.A. 2016 Supp. 8-1025 was facially unconstitutional. State v. Wycoff, 303 Kan. 885 (2016)(Wycoff I).

Mandates in Ryce I and Wycoff I were stayed pending U.S. Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). Rehearings in the Ryce and Wycoff appeals were then held with additional briefs and arguments. Opinion in Ryce II, decided this same date, modified the analysis in Ryce I but reaffirmed its holding that K.S.A. 2016 Supp. 8-1025 was unconstitutional.

ISSUE: Effect of Birchfield on Wycoff I HELD: For the reasons set forth in Ryce I and Ryce II, district court’s dismissal of the charge against Wycoff was affirmed.

DISSENT (Stegall, J.): Dissented for reasons stated in his dissent in Ryce I. STATUTES: K.S.A. 2016 Supp. 8-1001, -1025

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Court of Appeals Civil EVIDENCE—PARENTAL RIGHTS IN RE L.M.B., A.B., AND L.B. KIOWA DISTRICT COURT—AFFIRMED NO. 116,155—JUNE 16, 2017 FACTS: The children in this case were removed after a relative alleged that the parents were using drugs in the home. All three children in this case are members of the Citizen Potawatomi Nation.

The tribe was notified about the child in need of care (CINC) action almost as soon as it was initiated and a member of the Citizen Potawatomi Nation testified as an expert witness at the hearing on the motion to terminate parental rights. After their parental rights were terminated, both parents appealed.

ISSUES: (1) Sufficiency of the evidence; (2) qualification of the State's expert witness; (3) active efforts to prevent the breakup of the Indian family HELD: There was sufficient evidence that the parents were unfit such that the termination of parental rights was warranted. The state's expert witness was a member of the children's tribe and—as a professor at an Indian Nations university—was recognized by the trial community as knowledgeable in tribal customs. It is undisputed that the state made every effort to involve the children's tribe and extended family members in order to protect the children's Indian culture. And any failure to complete reintegration tasks was caused by the parents' failures and not by a lack of support.

STATUTES: 25 U.S.C. § 1912(e), §1912(f ), §1914; 25 U.S.C.A. § 1912(d), § 1912(f ); K.S.A. 2016 Supp. 38-2269(a), 60-261 ADMINISTRATIVE LAW—TAX APPEALS IN RE TAX APPEAL OF BARKER BOARD OF TAX APPEALS—AFFIRMED NO. 116,034—JUNE 30, 2017 FACTS: The Barkers leased an oil and gas interest on land that he eventually obtained ownership of by a transfer on death deed. The Barkers received a tax exemption for low-production leases. But the county assessed a tax on the equipment that the Barkers used to produce oil from those exempted wells. The Barkers appealed that tax to BOTA, which held that equipment is not included in the term "oil lease" as that term is used in the exemption for low-production leases. The Barkers appealed.

ISSUES: (1) Consultation of an oil and gas appraisal guide; (2) improper advocacy; (3) exemption of oil lease equipment; (4) attorney fees HELD: The Division of Property Valuation is allowed to adopt rules and regulations or appraiser directives, and there is a statutory mandate requiring county appraisers to follow the policies, procedures, and guidelines of DPV. In addition, the court may take judicial notice of any official state document prepared by a state official.

The facts in this case were undisputed but there was a dispute over a question of law – whether the Barkers' equipment was exempt. Because of that dispute, summary judgment was inappropriate regardless of whether BOTA responded to the Barkers' motion. On this issue of first impression, the court looks to the tax code for answers.

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When reading applicable statutes together, they suggest that equipment is not part of an oil lease for purposes of the tax exemption at issue here. The Barkers are not entitled to attorney fees because the tax assessed on the Barkers' equipment was allowed under the law.

STATUTES: K.S.A. 2016 Supp. 60-256(e)(2), 79-201t, -201t(a), -331(b), -332a(a), -505(a), -1439(b)(2)(B), -1439(b)(2)(E), -1456(a); K.S.A. 79-301, -329, -3268(f ) DAMAGES—LANDLORD AND TENANT MILLER V. BURNETT WABAUNSEE DISTRICT COURT—REVERSED AND REMANDED NO. 116,373—JUNE 9, 2017 FACTS: Miller rented 35 acres of pasture land from Burnett. She filed suit against Burnett, claiming that he violated the terms of their oral lease by allowing horses to graze on her rented pasture land and by denying her access for 3 months. Burnett counterclaimed, alleging that she hadn't paid rent for the current lease term. The small claims court found for Burnett and ordered Miller to pay rent.

Miller appealed and the decision was affirmed by the district court.

Miller appealed.

ISSUES: (1) Damages for violation of oral lease; (2) duty to mitigate damages HELD: In the absence of the trial transcript, it was impossible to determine whether the district court's factual findings were correct.

Miller had the burden to prove an adequate record and without the transcript, her claim of error must fail. Evidence showed that Miller breached the lease. But because Miller did not abandon the property, the district court erred by holding that Burnett was required to graze horses on the rented land in order to mitigate damages caused by the breach. Case had to be remanded to allow for proper application of the law to the facts.

STATUTE: K.S.A. 58-2507, -2524 CONTRACTS—DIRECTED VERDICT—FIDUCIARY RELATIONSHIP—FRAUD RAIL LOGISTICS L.C. V. COLD TRAIN, L.L.C. JOHNSON DISTRICT COURT—AFFIRMED IN PART AND REVERSED IN PART NO. 115,416—MAY 26, 2017 FACTS: Lerner and Mnichowski were co-managers of Rail Logistics, L.C. and Cold Train, L.L.C., but after a falling out, they ended their business relationship. The dissolution of the relationship resulted in three interconnected written agreements—an exchange agreement, a promissory note, and a pledge agreement—designed to end the joint ownership. Lerner kept Rail Logistics and Mnichowski took Cold Train. Cold Train borrowed money from Rail Logistics, and Cold Train pledged not to encumber any of its assets until Rail Logistics was repaid. Mnichowski violated the terms of that pledge agreement, and Rail Logistics took over Cold Train. A jury found in favor of Rail Train on four theories, including fraud by silence and constructive fraud. Mnichowski appealed.

ISSUES: (1) Judgment as a matter of law; (2) erroneous jury instruction; (3) sufficiency of the evidence; (4) constructive fraud claim www.ksbar.org | July/August 2017 75

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HELD: The three written instruments must be considered jointly, and when construed that way, they justify the jury's verdict. Because this is true, the jury was properly instructed. There was sufficient evidence to support the verdict. In order to succeed with a claim of constructive fraud, the plaintiff must show a confidential relationship. There was no evidence of such a relationship here.

STATUTE: K.S.A. 2016 Supp. 60-250(a)(1) ADMINISTRATIVE LAW—SECURITIES—STATUTORY INTERPRETATION SCHNEIDER V. THE KANSAS SECURITIES COMMISSIONER SHAWNEE DISTRICT COURT—AFFIRMED NO. 115,383—JUNE 2, 2017 FACTS: Schneider is an investment adviser representative and broker-dealer. In that capacity, he advised the Silvermans on their investments. After Jeffrey's death, Mary Lou called Schneider to discuss the investments in hopes that he could find a way to generate more income for her. Schneider invested her funds in inverse investment products called exchange traded funds (ETFs). Schneider made this decision despite learning that these products were not suitable for retail investors. Ultimately, the account suffered losses in excess of $90,000. Because of this, the Securities Commissioner sought sanctions against Schneider under the Kansas Uniform Securities Act (KUSA). A district court affirmed sanctions of $25,000 in addition to restitution covering all of the losses. Schneider appealed.

ISSUES: (1) Use of FINRA notice as governing legal standard; (2) sufficiency of the evidence HELD: There was no evidence that the court improperly relied on a FINRA notice; the initial notice contained several Kansas regulation references. Testimony at the hearing relied on a variety of sources, not just the FINRA notice. An expert witness cannot testify to a legal conclusion, as that role is left to the tribunal. And there was no evidence that the ETF product was a suitable investment for Schneider's client. There was no evidence that the commissioner attempted to enforce an unpublished internal policy of the agency. The commissioner did not violate the non-delegation doctrine. There was substantial competent evidence to support the commissioner's findings.

STATUTES: K.S.A. 2016 Supp. 77-415(b)(1), -415(c)(4), -621(a)(1), -621(c), -621(d); K.S.A. 17-12a412, -12a412(d)(13), 77-425, -527, -623 ATTORNEY FEES—INSURANCE—STATUTORY INTERPRETATION ALLIANCE INDEMNITY CO. V. KERNS JOHNSON DISTRICT COURT—AFFIRMED NO. 115,882—JUNE 2, 2017 FACTS: Kerns was involved in an automobile accident while driving a rental car that was secured for her by her employer. She was insured under an auto policy issued by Alliance. Her employer carried a policy issued by Federal Insurance Company, and Kerns suggested that she was covered under that policy in addition to any coverage coming from her own policy with Alliance. Kerns obtained a default judgment against the other driver, who was uninsured. Alliance paid uninsured motorist benefits under Kerns' policy. Kerns 76

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filed suit in Missouri. While that suit was pending, Alliance filed a declaratory judgment action in Kansas, seeking a determination of its applicable coverage under both Kerns' policy and the Kansas anti-stacking statutes. After the Missouri court found in Alliance's favor, a panel of this court remanded this case to the district court so that the declaratory judgment action could be dismissed without prejudice. On remand, Kerns moved for an order awarding attorney fees and expenses. The district court refused to award fees and Kerns appealed.

ISSUE: Basis for an award of attorney fees HELD: Kansas courts will not award attorney fees in the absence of a statute authorizing the fees or an agreement between the parties.

Kerns did not gain coverage by legal action; the suit was dismissed after Kerns received an adverse decision in Missouri. And it does not appear that the legislature intends to allow for the recovery of attorney fees to parties who successfully defend a declaratory judgment action. In a lawsuit, "costs" do not include attorney fees.

STATUTE: K.S.A. 23-9,313, 26-509, 40-908, 50-505, 60-1305, -1703, -1711 MOOTNESS—STALKING C.M. V. MCKEE SEDGWICK DISTRICT COURT—AFFIRMED NO. 115,001—JUNE 23, 2017 FACTS: McKee lived next door to A.M.'s family. At the time of this case, C.M. was 11 years old. A.M. alleged that, on three occasions, McKee acted in ways that made her fear for her safety. A.M.'s parents filed a protection from stalking action against McKee, and it was granted by the district court. McKee appealed.

ISSUES: (1) Mootness; (2) sufficiency of the evidence HELD: The protection from stalking order expired before this appeal could be decided. But because there is an issue that persists— specifically, whether a child can provide testimony sufficient to sustain a protective order—this appeal is not moot. There was sufficient evidence to prove that a reasonable 11-year old girl would be scared

by McKee's conduct. Because of that, the district court's decision was affirmed.

STATUTE: K.S.A. 2016 Supp. 60-31a01(b), -31a02(a), -31a02(b), -31a02(c), -31a05(a) STATUTORY INTERPRETATION—WORKERS COMPENSATION KNOLL V. OLATHE SCHOOL DISTRICT NO. 233 WORKERS COMPENSATION APPEALS BOARD—REVERSED AND REMANDED NO. 116,167—JUNE 23, 2017 FACTS: Knoll was an employee of the school district. She was injured after falling in a parking lot, and she received medical treatment for those injuries. Knoll's injury occurred contemporaneously with amendments to the workers compensation statutes, specifically, a change which reduced from five years to three the time in which a claim must be filed. Knoll filed an application for hearing in 2011, after the statutory amendments became effective. In 2015, the district moved to dismiss Knoll's claim for lack of prosecution, since more than three years had passed since the filing of her application for hearing. Both the ALJ and the board agreed with Knoll's

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defense that the version of the statute in effect at the time of her injury controlled, meaning there was a five-year time limit. The district appealed.

ISSUE: Whether the amendment to K.S.A. 44-523(f ) applies retroactively HELD: The date that the application for hearing was filed had no bearing on which version of the statute applies. But the amendment to the statute changing the time limit from five years to three was procedural, not substantive. This required retrospective application of the amendment. Applying the three-year time limitation, Knoll's claim was subject to dismissal for lack of prosecution. Knoll's claim must be dismissed.

STATUTES: K.S.A. 2016 Supp. 44-523(f )(1); K.S.A. 2011 Supp. 44-523(f )(1); K.S.A. 2009 Supp. 44-523(f ), -523(f )(1); K.S.A. 2006 Supp. 44-523(f ) GARNISHMENT LEAF FUNDING V. SIMMONS MEDICAL CLINIC CRAWFORD DISTRICT COURT—AFFIRMED NO. 116,666—JUNE 30, 2017 FACTS: Leaf obtained a default judgment against Simmons in federal court in Delaware. After obtaining that judgment, Leaf filed a notice of the foreign judgment in Crawford County District Court. Some years later, Leaf filed a motion to revive that judgment, which was granted by the district court. After the revival, Leaf filed requests for garnishment on two banks, and the district court issued orders of garnishment. Simmons objected, claiming that he had no notice of the Delaware lawsuit and that the funds being garnished were exempt Social Security disability benefits. Simmons later clarified that the disability benefits were from private disability insurance and not Social Security benefits. The parties agreed on some issues, but a question remained about whether funds attributable to a disability insurance police were exempt from garnishment. The district court ultimately ruled that private disability insurance benefits were subject to garnishment, and Simmons appealed.

ISSUE: Ability to garnish funds from a private disability insurance policy HELD: K.S.A. 60-2313(a)(1) exempts from garnishment only the funds specifically enumerated in the statutes. Since Simmons' funds – derived from private disability insurance – were not mentioned, they are subject to garnishment.

STATUTES: K.S.A. 2016 Supp. 60-735(c), 60-2308, 74-4927, -4960; K.S.A. 20-2609, 60-724(3), -2308, -2308(b), -2313, -2313(a)(1) ATTORNEY AND CLIENT—CONSTITUTIONAL LAW CRIMINAL LAW POST-CONVICTION RELIEF KHALIL-ALSALAAMI V. STATE RILEY DISTRICT COURT—REVERSED AND REMANDED NO. 115,184—JUNE 17, 2017 FACTS: Jury’s conviction of Ziad Khalil-Alsalaami (Ziad) on two counts of aggravated criminal sodomy was affirmed on direct appeal. He then filed K.S.A. 60-1507 motion alleging ineffective assistance of counsel who represented him both at trial and on di

rect appeal. Allegations included counsel’s failure to request an interpreter at trial. District court conducted a full hearing and denied the motion. Ziad appealed.

ISSUE: Ineffective assistance of counsel HELD: Ziad’s allegations were reviewed in light of counsel’s overall trial strategy that DNA evidence was transferred to the victim, and that police tricked Ziad into a false confession. Under facts in this case, Ziad’s attorney was ineffective for not requesting an interpreter at trial. Prejudice would be presumed because this implicated the basic consideration of fairness to Ziad. Other instances of ineffective assistance are further noted, including counsel’s failure to not raise the interpreter issue on direct appeal, failure to file a motion to suppress or to mount a defense at the Jackson v. Denno hearing, stipulating to the voluntariness of the confession, failing to object to prosecutor’s questions about Ziad’s conversation with his wife, failing to object to prosecutor’s misstatement of the evidence during closing argument, and failure to raise issue of prosecutorial misconduct during closing argument on direct appeal. These errors went to the heart of counsel’s defense strategy, and their cumulative effect impacted Ziad’s ability to receive a fair trial. Reversed and remanded for further proceedings.

STATUTES: K.S.A. 2016 Supp. 21-6627(a)(1)(D), 75-452; K.S.A. 22-3215, 60-404, -1507, 75-4351, -4351(b), -4351(e) HABEAS CORPUS—MEDICAL TREATMENT STOCKWELL V. STATE PAWNEE DISTRICT COURT—REVERSED AND REMANDED NO. 115,897—JUNE 23, 2017 FACTS: Stockwell is involuntarily committed to the state Sexual Predator Treatment Program. Stockwell sought to execute an advanced directive for health care decisions, but program staff told him that he did not have the right to enter a do-not-resuscitate (DNR) order. Stockwell filed suit, and the facility allowed him to file both a DNR and a living will. But he was told those forms would be honored only if two medical professionals determined that Stockwell was terminally ill. Believing that the decision on the DNR violated his civil rights, Stockwell filed suit.

ISSUE: Does the hospital's policy on the DNR violate Stockwell's civil rights HELD: Stockwell's right to refuse medical treatment is constitutional in nature. Because Stockwell is in state custody, the state must use reasonable efforts to accommodate his right to refuse treatment.

DISSENT: (Powell, J.) The state hospital reasonably accommodated Stockwell's wishes by requiring that his advance directive be honored under circumstances where it would be medically appropriate.

STATUTES: K.S.A. 2016 Supp. 60-1501; K.S.A. 65-4944 CIVIL PROCEDURE—OPEN RECORDS GREEN V. UNIFIED GOVERNMENT OF WYANDOTTE COUNTY WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED NO. 116,038—MAY 26, 2017 www.ksbar.org | July/August 2017 77

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FACTS: Trina Green asked to see records about the shooting of her son by law enforcement officers. The Wyandotte County Sheriff's Department and the Kansas City (Kansas) Police Department refused her request, citing an exception to disclosure for criminalinvestigation records. Green sued to get an order to produce the records. The Unified Government filed a motion to dismiss with prejudice that was granted by the district court, and Green appealed.

ISSUE: Whether the request for records was properly denied HELD: A district court must not make factual findings when deciding a motion to dismiss for failure to state a claim. Instead, it must accept the facts that have been included in the petition. The district court's order did not provide any findings of fact on how release of the requested records would be problematic. The district court abused its discretion by ruling without an evidentiary record and without weighing the statutory factors.

STATUTES: K.S.A. 2016 Supp. 45-221(a)(10), -222(c), 60212(b)(6); K.S.A. 45-216(a) PRODUCT LIABILITY CORVIAS MILITARY LIVING V. VENTAMATIC, LTD. GEARY DISTRICT COURT— REVERSED AND REMANDED NO. 116,307—JUNE 2, 2017 FACTS: Corvias builds, owns, and manages private family housing at Fort Riley. Through subcontractors, Corvias purchased a number of bathroom exhaust fans manufactured by Ventamatic.

Over time, it was alleged that a defective electrical motor in these fans caused several fires in Corvias-built residences. After replacing all of the fans, Corvias filed suit against Ventamatic and other defendants, asserting a product liability claim. The district court found in Ventamatic's favor and Corvias appealed.

ISSUE: Whether recovery is barred by the integrated system approach HELD: The exhaust fans were easily distinguishable from the other property that was damaged by fires. In order to be "integral", the damaged property must be unable to function properly without the allegedly defective product. That was not the case here, as the exhaust fans are not integral to the function of the damaged housing units. For that reason, the district court erred by dismissing on summary judgment Corvias' product liability claim.

STATUTES: K.S.A. 2016 Supp. 60-256(c)(2); K.S.A. 603302(c), -3302(d)

CRIMINAL CRIMINAL LAW—JURISDICTION—STATUTES STATE V. CASTILLO SEDGWICK DISTRICT COURT—AFFIRMED NO. 115,504—JUNE 9, 2017 FACTS: Castillo entered guilty pleas to two DUI offenses. District court imposed consecutive 1-year prison terms and 1-year post-release supervision periods. After serving both jail sentences she violated terms of her post-imprisonment supervision. District 78

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court revoked supervision and ordered service of the balance of the supervision period in county jail. Castillo appealed, claiming district court lacked jurisdiction to impose additional jail time. She argued the post-release period for felony DUI should be treated the same as a post-release period from other felony convictions governed by the Kansas Sentencing Guidelines Act (KSGA), and only the agency supervising her release (Department of Corrections) had authority to revoke her release and not the district court which lost jurisdiction upon sentencing. State argues this jurisdictional claim was not raised below, and Castillo failed to brief why the issue is properly before the appellate court.

ISSUE: (1) Appellate jurisdiction, (2) jurisdiction to revoke postrelease supervision or post-imprisonment supervision HELD: Castillo’s challenge to the district court’s subject matter jurisdiction was addressed.

DUI sentences are not calculated pursuant to the KSGA because the Kansas DUI law, K.S.A. 8-1567, is a self-contained criminal statute that includes elements of the crime, severity levels, and applicable sentences. Inmates on post-release supervision remain in the legal custody of the Department of Corrections and are subject to orders of the secretary, while DUI offenders are on post-imprisonment supervision and remain subject to jurisdiction of the district court. District court in this case had jurisdiction to revoke Castillo’s post-imprisonment supervision for her DUI offenses and to impose additional jail time.

STATUTES: K.S.A. 2016 Supp. 8-1567, -1567(b)(3), 20346a(b), 21-5413(h)(10), -6603(b), -6804(i)(1), 22-3716, -3716(b) (3)(B), -3717(a), 75-5291(a)(2)(G); K.S.A. 2010 Supp. 8-1567(g) (2); K.S.A. 8-1567, 75-5217 CONSTITUTIONAL LAW—CRIMINAL— FOURTH AMENDMENT STATE V. GLOVER DOUGLAS DISTRICT COURT—REVERSED AND REMANDED NO. 116,466—JUNE 30, 2016 FACTS: Law enforcement officer ran the plate on a car which he then stopped to investigate because the driver’s license of the registered owner (Glover) had been revoked. Glover was charged with driving without a license as a habitual violator. He filed motion to suppress, arguing there was no reasonable suspicion of criminal activity to justify the stop. District court agreed and found the initial stop was unlawful. State filed interlocutory appeal.

ISSUE: Reasonable suspicion for traffic stop HELD: Kansas courts have not previously confronted the narrow issue of whether an officer’s knowledge that vehicle owner’s license is revoked, by itself, provides reasonable suspicion to initiate a stop.

Decisions in other states were reviewed, finding agreement with the consensus of their state supreme courts. A law enforcement officer has reasonable suspicion to initiate a stop of a vehicle to investigate whether the driver has a valid driver’s license if, when viewed in conjunction with all other information available to the officer at the time of the stop, the officer knows the registered owner of the vehicle has a suspended license, and the officer is unaware of any other evidence or circumstances from which an inference could be drawn that the registered owner is not the driver of the vehicle. In this case

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it was reasonable for the officer to infer the driver was the owner of the vehicle, thus the officer properly initiated a traffic stop to investigate whether Glover was illegally driving his vehicle. District court’s decision to grant Glover’s motion to suppress was reversed, and matter was remanded.

STATUTES: K.S.A. 2016 Supp. 8-287; K.S.A. 22-2402(1), -3216(2) CRIMES AND PUNISHMENT—CRIMINAL PROCEDURE—SENTENCING—STATUTES STATE V. HORSELOOKING JACKSON DISTRICT COURT— VACATED AND REMANDED NO. 115,656—JUNE 30, 2017 FACTS: Horselooking was convicted of aggravated battery and DUI. Sentencing court scored Horselooking’s prior Kickapoo Nation tribal conviction of residential burglary as a person felony for criminal history purposes. Horselooking appealed, claiming his tribal conviction should be scored as a misdemeanor because the Kickapoo Nation Tribal Code does not designate crimes as felonies or misdemeanors.

ISSUE: Criminal history scoring of out-of-state convictions HELD: Horselooking’s Kickapoo conviction for residential burglary would be classified as a felony under State v. Hernandez, 24 Kan. App. 2d 285, rev. denied 263 Kan. 888 (1997), and State v.

Lackey, 45 Kan. App. 2d 257, rev. denied 292 Kan. 968 (2011), but panel discussed why the Kansas Supreme Court would not embrace Hernandez and Lackey in this case. Where the convicting jurisdiction does not designate a prior conviction as a felony or misdemeanor, the rule of lenity should apply, thus Horselooking’s tribal conviction of residential burglary should have been classified as a misdemeanor for criminal history purposes. Horselooking’s sentence was vacated and remanded to district court for resentencing using the correct criminal history score.

DISSENT (Atcheson, P.J.): Agreed that Hernandez, and the reiteration of its holding in Lackey, impose a default rule that cannot be reconciled with K.S.A. 2-15 Supp. 21-6811. Disagreed with majority’s focus on Kickapoo Nation’s criminal code as not explicitly labeling crimes as “felonies” or “misdemeanors.” Instead, legislature intended for what another jurisdiction treats as a serious crime be scored as a felony for criminal history purposes, while a minor crime from that jurisdiction should be scored as a misdemeanor. Examining the types of punishment for various wrongs under the Kickapoo Nation’s tribal criminal code, residential burglary is a serious crime.

Horselooking’s conviction should have been treated as a felony in determining his criminal history.

STATUTE: K.S.A. 2015 Supp. 21-5102, -5102(a), -5102(d), -5807(a)(1), -5807(c)(1)(A), -6803(c), -6810(c), -6811, -6811(e), -6811(e)(1), -6811(e)(2), -6811(e)(2)(A), -6811(e)(2)(B), -6811(e) (4) CREDITORS AND DEBTORS—CRIMINAL PROCEDURE—JURISDICTION—RESTITUTION SENTENCES—STATUTES STATE V. JAMERSON

SHAWNEE DISTRICT COURT—REVERSED NO.116,413—JUNE 17, 2017 FACTS: Jamerson was convicted and sentenced in 2001 to a prison term and over $5,000 in restitution. Restitution again ordered in 2013 resentencing. Thereafter, the district court entertained a request for and entered an order of garnishment of Jamerson’s prisoner account. Jamerson appealed, claiming the district court lacked jurisdiction to enter garnishment order prior to the conclusion of Jamerson’s resentencing appeal.

ISSUES: (1) Jurisdiction, (2) restitution HELD: Kansas criminal code does not contain statutes outlining a procedure by which a person owed restitution may seek recovery of the judgment. When restitution is ordered, it is a judgment against the defendant which can be collected by garnishment proceedings as in any civil case. Although the district court lost jurisdiction to alter or amend Jamerson’s sentence while the case was on appeal—including the amount of restitution—it had jurisdiction to enter an order of garnishment.

District court erred when it entered order allowing garnishment of Jamerson’s inmate account. A district court has discretion to order payment of restitution while a defendant is incarcerated, but it must declare that intention unambiguously. In this case, district court failed to make clear that restitution was payable immediately, thus restitution did not become due until Jamerson's release.

STATUTES: K.S.A. 2016 Supp. 21-6604(b)(1), -6604(b)(2), 60729(a), -731(a), -2103(d)(1); K.S.A. 2002 Supp. 21-4603d(a)(11), -4603d(b); K.S.A. 60-4301 CRIMINAL LAW—SENTENCING—STATUTES STATE V. LAMONE SEDGWICK DISTRICT COURT—SENTENCE VACATED AND CASE REMANDED NO. 115451—JUNE 9, 2017 FACTS: Lamone was convicted of felony DUI based on two previous municipal court DUI convictions under a Wichita city ordinance. On appeal she argued her prior municipal convictions could not be used to enhance her DUI sentence because at the time of her previous convictions the city ordinance was broader than the state statute in defining the term “vehicle.” She also contended the trial court’s finding of fact regarding what type of vehicle she was driving when charged with DUI under they city ordinance violated Apprendi case law.

ISSUE: Sentencing for felony DUI - use of prior DUI municipal court convictions HELD: Trial court erred in using Lamone’s two prior municipal court convictions as a basis for convicting her of felony DUI. Wichita city ordinance was broader than the state statute, but definition of “vehicle” under the Wichita City Ordinance did not create an alternative element but only enumerated one or more factual ways of committing the single offense of DUI. Because the Wichita ordinance is not divisible, the trial court improperly invoked the modified categorical approach to consult the charging documents of Lamone’s two previous municipal court convictions to determine what type of vehicle she was operating or attempting to operate when charged with the DUI offenses. Lamone’s sentence was vacated and case was remanded for resentencing under K.S.A. 2016

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Supp. 8-1567 without use or consideration of Lamone’s two previous municipal court DUI convictions.

DISSENT (Gardner, J.): Would affirm Lamone’s sentence. Because the Wichita ordinance prohibits the acts prohibited by the state statute, under the categorical approach Lamone’s prior municipal convictions can be used to enhance her sentence. Alternatively, if alternative elements are assumed in the definition of “vehicle” in the Wichita ordinance, then the ordinance is divisible and Lamone’s sentencing judge was permitted to examine the municipal court citations upon which her prior convictions were based.

STATUTES: K.S.A. 2016 Supp. 8-1485, -1567, -1567(a), -1567(i); K.S.A. 2013 Supp. 8-1567(a)(2), -1567(a)(3), -1567(b) (1)(D), -1567(i); K.S.A. 8-1567 CRIMINAL PROCEDURE—SEARCH AND SEIZURE STATE V. LEWIS SEDGWICK DISTRICT COURT—REVERSED, SENTENCE VACATED AND REMANDED NO. 115,285—JUNE 17, 2017 FACTS: At the completion of a traffic stop, police had Lewis exit his car so dog sniff of car could be conducted. When the dog indicated drugs, the ensuing search resulted in the discovery of cocaine inside the center console. Lewis filed motion to suppress the

evidence, contending in part the police unreasonably prolonged his traffic stop to obtain a dog sniff. District court denied the motion, finding the 21-minute stop was not excessive, and the dog’s aggressive indicator was sufficient probable cause for the search. District court also found the officer’s information from a confidential informant was sufficient to establish a reasonable suspicion that Lewis might be involved in criminal activity. Lewis was convicted on stipulated facts. On appeal, he claimed the district court erred in denying the motion to suppress, arguing in part the police unreasonably prolonged the traffic top to obtain a dog sniff.

ISSUES: (1) Reasonable suspicion, (2) traffic stop HELD: No support was in the record for state’s argument that reasonable suspicion to extend the traffic stop was based on Lewis’ jumpiness. And under facts in this case, the confidential informant’s anonymous tip would not have allowed officers to infer a reasonable suspicion of illegal conduct.

Under the circumstances, where the traffic investigation had just been completed as the drug sniffing dog arrived, the officers unreasonably prolonged the traffic stop to conduct the dog sniff. Lewis’ conviction was reversed, his sentence was vacated, and case was remanded with directions to grant his motion to suppress.

STATUTES: K.S.A. 21-36a06(a), -36a06(c)(1)

Appellate Practice Reminders From the Appellate Court Clerk's Office Starting off on the right foot.

Filing a notice of appeal does not end an attorney's duty to perfect an appeal in the appellate courts. Filing a docketing statement is the next step in making sure the appellate courts have jurisdiction to consider your appeal.

Recently, with mandatory efiling, the Supreme Court amended Rules 2.04 and 2.041 to address several issues with docketing statements. Rule 2.04 provides the only instance when multiple documents can be submitted in the same filing. Not only must an attorney comply with the list of required documents, but the documents must be in a specific order. Rule 2.04(a)(3) states, "Required Sequence. To electronically docket an appeal, an attorney must upload the required documents in the order listed under subsection (a)(1) or (a)(2) and file the required documents in a single submission in the appellate courts' electronic filing system." The required sequence is essential to ensure an orderly and efficient determination by the docketing clerks that an appeal has all the necessary documents for the court's consideration.

Rule 2.041 directs an attorney to file the notice of appeal in the district court and the docketing statement with the clerk of the appellate courts. The docketing statement must be served on all other parties and filed within 21 days of the filing of the notice of appeal in the district court. The docketing statement must be on the form provided by the judicial council. The Supreme Court's amendment of Rules 2.04 and 2.041 also cleaned up the number of unnecessary copies needed for several documents with the onset of efiling.

Get your appeal off to a great start and make sure you comply with Rules 2.04 and 2.041.

For questions about these or other appellate procedures and practices, call the Office of the Clerk of the Appellate Courts.

(785) 296-3229, Douglas T. Shima, Clerk.

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Eastern Kansas Oil & Gas Conference

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Memorial Building, 3rd Fl. • 101 S. Lincoln • Chanute, Kansas http://www.ksbar.org/event/EasternOilGas Approved for 7.0 hours CLE credit, including 1.0 hour of ethics & professionalism in KS and MO

Lunch & Learn Straddling the Line Between Attorney Misconduct & Free Speech Rights: KSRPC 8.4(d) and (g) & ABA Model Rule 8.4(g) Friday, Aug. 11 • Lunch & Registration at 11:30 a.m.

Kansas Law Center • 1200 SW Harrison • Topeka, KS http://www.ksbar.org/event/StraddlingtheLine Approved for 2.0 hours CLE credit, including 2.0 hours of ethics and professionalism in KS & MO

The ABA and the KBA have partnered up to save you money!

KBA members will receive a 15% discount on most all ABA books!

To get your savings code or for more information visit: http://www.ksbar.org/booksforbars

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classified advertisements

Classified Advertisements are FREE to KBA Members Positions Available Attorney position available. Young, Bogle, McCausland, Wells & Blanchard, a downtown Wichita law firm seeks associate or lateral hire. At least three years’ experience in civil litigation/general practice and must be admitted to the Kansas Bar. Equal opportunity employer. Competitive benefits, including health insurance. Email resume, introductory letter, writing sample, and salary requirements to Paul McCausland, p.mccausland@youngboglelaw.com.

McPherson firm seeks an associate attorney. Our firm is engaged in general practice in a community of approximately 13,000. Salary is negotiable. Must reside in McPherson. Please send introductory letter and resume to: tkarstetter@kklawoffices.com Kennedy Berkley Yarnevich & Williamson, Chtd. is seeking an attorney with at least five years’ experience in domestic and civil litigation practice. Please send introductory letter and resume for consideration to lherbic@kenberk.com.

Small Overland Park defense firm seeking FT attorney for Workers’ Comp and general liability litigation defense. Ideal candidate will have 3-5yrs Workers’ Comp defense experience, lic. in KS and MO. Prefer general litigation experience. Salary based on experience and book of business. Base salary plus great bonus plan. Health/Dental Insurance, 401K available. Laid back, casual office. Email resume and cover letter: Joseph McMillan jmcmillan@mulmc.com Attorney Randy Clinkscales wants to donate his Kansas Reports book collection ASAP. Volumes 178-295 (1955-2012).

Collection is free; ask only that buyer pay for shipping. Please contact: Clinkscales Elder Law Practice, P.A. 785.625.8040 • ashley@clinkscaleslaw.com Attorney Services Appeals. Experienced trial and appellate attorney available for state and federal appellate case referrals. Licensed before state courts of Kansas and Colorado, U.S. Supreme Court, and various circuit courts of appeals including the Tenth Circuit Court of Appeals. Listed, Who’s Who in American Law. Work featured in The New York Times and The Washington Post. Author of numerous legal articles and Am. Jur. Trials treatise on constitutional tort law. Trial perspective at the appellate court level. Reasonable rates, fee arrangements. Contact John B. Roesler, Attorney at Law, PO Box 604, Lawrence, Kansas 66044, (303) 929-2244, jroesler@lawyer.com.

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Contract brief writing. Experienced brief writer is willing to take in appellate proceedings for any civil matter. Attorney has briefed approximately 40 cases before the Kansas Court of Appeals and 15 briefs before the Tenth Circuit, both with excellent results. If you simply don’t have the time to help your clients after the final judgment comes down, call or email to learn more.

Jennifer Hill, (316) 263-5851 or email jhill@mcdonaldtinker.com.

Contract brief writing. Former federal law clerk and Court of Appeals staff attorney available to handle appeals and motions.

Attorney has briefed numerous appeals in both the Kansas and federal appellate courts.

Contact me if you need a quality brief.

Michael Jilka, (785) 218-2999 or email mjilka@jilkalaw.com.

Contract brief writing. Former research attorney for Kansas Court of Appeals judge, former appellate division assistant district attorney in Sedgwick County. Writing background includes journalism degree, Kansas City Times intern, U.D.K. beat reporter and grant writer. I have written more than 50 appeals and had approximately 30 oral arguments in the Kansas Court of Appeals and Kansas Supreme Court. I have criminal and civil litigation experience, in addition to civil and criminal appellate experience. I welcome both civil and criminal appeals. Rachelle Worrall, (913) 397-6333, rwlaw310@outlook.com.

Estate & trust litigation. Available to assist you in probate and trust litigation in Kansas, Missouri and other states. www. nicholsjilka.com.

QDRO Drafting. I am a Kansas attorney and former pension plan administrator with years of experience in employee benefit law. My services are available to draft your QDROs, communicate with the retirement plans, and assist with qualification of your DROs or other retirement plan matters. Let me help you and your client through this technically difficult process. For more information call Curtis G. Barnhill at (785) 856-1628 or email cgb@barnhillatlaw.com.

Veterans services. Do you want to better serve your veteran clients without going to the trouble of dealing with the VA? I am a VA-accredited attorney with extensive experience applying for various VA benefits, including Improved Pension. I regularly consult with attorneys (and their clients) about the various services attorneys can offer their clients to help qualify veterans and their families for various VA programs. As soon as a client is in position to qualify, I can further assist by handling the entire application to the VA for you. For more information about

my various consultation and application services, please contact the Law Office of Scott W. Sexton P.A. at (785) 409-5228.

Office Space Available 2 Updated Office Spaces for Lease--601 N. Mur-Len Rd. Ste. 20, Olathe, KS 66062.

Office 1) Large window with large ledge; Office 2) Storage closet and large picture window. *Coffee bar, waiting area and receptionist/ paralegal area. *Fax, Wifi and ground floor parking.

Call Chris Fletcher: (913) 390-8555 Large office space now available at One Hallbrook Place in Leawood, KS. Two conference rooms, kitchen, high-speed internet, postage services, copier/fax all included. For more information or to schedule a viewing, contact Bryson Cloon at (913) 323-4500 Office space for lease. Located at 3615 SW 29th St. in the Topeka Office Suites (TOS), ADA accessible. Available spaces 310 sqft and 450 sqft with options for customized space available. Features: • Efficient office suites • Cisco phones with free long distance • High-speed internet • Copier/ printer/fax • Quick and affordable access to your own office space • Conference rooms for small, medium and large meetings • Attractive reception areas. TOS offers beautiful, full-service office space in a contemporary, elegant office building located along the busy 29th Street corridor. Call (785) 228-6662 for more information and tours. http://www.topekaofficesuites.com.

Leawood Law Office. Looking for office sharing and/or work sharing arrangement, ideally with an estate planning/probate attorney. One large and one smaller office available, plus conference room. Phone system, internet, high-speed copier/printer, and lunchroom. Plenty of surface parking.

In a great area in south Leawood—bright and modern space on second floor of bank building. Contact Paul Snyder (913) 6853900 or psnyder@snyderlawfirmllc.com.

Selling: Law Office Furniture Large oak S-curve rolltop desk w/(rare) matching high-back executive chair, small conference table, two client chairs from old Harvey Co. jury box, 3 oak filing cabinets, 5-piece glassfront bookcase, 8'x6' walnut book case, several other pieces. Best offer for all. Please call Bill Kluge @ (316) 650-4571.

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