2014 Judicial Conference Kansas Appellate Cases Update

1. 2014 Judicial ConferenceKansas Appellate Cases Update Honorable Anthony J. Powell Kansas Court of Appeals

2. CLASSIFICATION OF CRIMES PRIOR TO SENTENCING GUIDELINES

3. CLASSIFICATION OF CRIMES COMMITTEDPRIOR TO SENTENCING GUIDELINES State v. Murdock, __ Kan. __, 323 P.3d 846 (2014) • K.S.A. 21-4711(e) governs the classification of out-of-state crimes/convictions as person or nonperson offenses. It provides in part that if the State of Kansas does not have a comparable offense, the out-of-state conviction must be classified as a nonperson offense. • A fundamental rule for sentencing is the person convicted of a crime is sentenced in accordance with the sentencing provisions in effect at the time the crime was committed. • The appellate rule that penalty parameters for an offense are fixed as of the date of the commission of the offense is fair, logical, and easy to apply.

4. CLASSIFICATION OF CRIMES COMMITTEDPRIOR TO SENTENCING GUIDELINES State v. Murdock, __ Kan. __, 323 P.3d 846 (2014) • Kansas did not classify crimes as person or nonperson offenses until 1993 when the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., was enacted. • When calculating a criminal history that includes convictions committed prior to the KSGA, such convictions must be classified as nonperson offenses. Prior caselaw contrary to this holding is overruled. • The dissent agreed such a result is unreasonable and ignores the purpose and design of the KSGA. The dissent would limit the holding of State v. Williams, 291 Kan. 554 (2010), which held that determining a comparable crime for criminal history purposes must be compared to the crime in effect at the time it was committed, to its facts, and compare pre-guideline offenses with current guideline offenses to determine whether such offenses were person or nonperson crimes.

5. RIGHT TO CONSULT WITH ATTORNEYPRIOR TO BLOOD-ALCOHOL TEST State v. Richmeier, 49 Kan. App. 2d 691 (2013) A 15- to 20-minute delay between request and completion of booking/bail process did not deny driver right to consult attorney. State v. Messer, 49 Kan. App. 2d 313 (2013) Driver released within 42 minutes of asking for independent test and less than 2 hours after stop had reasonable opportunity to obtain test. • K.S.A. 8-1001(k)(9) provides a driver the right to consult with attorney after testing and to “secure additional testing, which, if desired, should be done as soon as possible.” • Right not limited to driver obtaining additional test.

6. WHEN TO CHALLENGE PRIORDUI CONVICTION CLASSIFICATIONS State v. Key 298 Kan. 315 (2013) State v. Tims 49 Kan. App. 2d 845 (2014) Defendant probably waived right to challenge felony classification of DUI when he waived his preliminary hearing. • Defendant who wishes to challenge the felony classification of DUI should do so at the preliminary hearing or upon a motion to dismiss; if unsuccessful, the defendant must go to trial. • If defendant enters a plea, defendant cannot challenge conviction on appeal, can only challenge the sentence.

7. VALIDITY OF UNCOUNSELEDDIVERSION ON PRIOR DUI • No constitutional right to counsel during diversion proceedings. • If guilt never adjudicated and sentence never imposed, court can count prior uncounseled DUI diversion as a conviction for determining whether current charge is a first, second, third, etc. DUI. • Kansas provides for statutory right to counsel during diversion proceedings, but such right does not entitle defendant to be provided counsel. Diversion agreement is not void if defendant did not have counsel. • The right to counsel can be waived; such waiver does not need judicial supervision as diversion agreements are interpreted in accordance with contract principles. State v. Tims, 49 Kan. App. 2d 845 (2014)

8. CONFIDENTIALITY OF COMMUNICATIONS WITH MEDIATOR • Communications during mediation are confidential. K.S.A. 5-512. • Mediator may not testify that case settled if no written agreement and either party objects. • When approved by court, written/signed agreement settling case is enforceable as an order of the court. K.S.A. 5-514. Baraban v. Hammonds, 49 Kan. App. 2d 530 (2013)

9. Written v. Oral Separation Agreements • A divorce decree has no effect until it is put into writing and approved by the court. • By operation of statute, the oral agreement merges into the written divorce decree. • The written separation agreement agreed to by the parties and made part of the decree is binding on the parties. In re Estate of McLeish, 49 Kan. App. 2d 246 (2013)

10. Social Security Disability and Child Support • Long-standing rule in Kansas: when child receives benefits as part of parent's Social Security disability award, any amount in excess of child support owed is considered gratuity that inures solely to the benefit of the child. • Rejected Papineau's claim that continuing to make child support payments during period of disability should alter the rule. • Dissent disagreed: holding created a disincentive for disabled child support obligors to continue to pay child support obligations. Stephenson v. Papineau, 49 Kan. App. 2d 457 (2013)