More on Jessica's Law: Lifetime Parole

The Kansas Supreme Court held that a defendant sentenced under Jessica's law is subject to lifetime parole rather than lifetime post-release supervision in State v. Baptist.  Case No. 105,146 (Kan. July 13, 2012).  After pleading no contest to an off-grid crime of rape, a Kansas district court "imposed a hard 25 life sentence under Jessica's Law, K.S.A. 21-4643(a)(1)(B), meaning Baptist would only be eligible for parole after serving 25 years in prison, and also imposed postrelease supervision." 

On appeal, Baptist argued that the district court should have imposed lifetime parole rather than lifetime postrelease supervision.  The supreme court found in Baptist's favor and held that the district court erred in imposing lifetime postrelease supervision.  Applying a recently decided decision, State v. Summers, 293 Kan. 819, 832 (2012), the court reasoned that "a sentencing court has no authority to order a term of [lifetime] postrelease supervision in conjunction with an off-grid intermediate life sentence" because such an inmate can only leave prison if the Kansas Prisoner Review Board grants parole. 

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Kansas Supreme Court Hard Ruling On Jessica’s Law

In Kansas v. Salinas, 105,988, 2012 WL 2866102 (Kan. July 13, 2012), the Kansas Supreme Court upheld the district court’s determination to not allow a requested departure from a life imprisonment with a minimum imprisonment of not less that 25 years, after the defendant plead guilty to aggravated criminal sodomy.  at *6.  The defense presented evidence that the defendant had been sexually abused himself, diagnosed with attention deficit hyperactivity disorder and depression, and was a drug addict, in support of mitigation.  Id. at *2.  However, the district court found that there was no “evidence rising to a substantial and compelling reason to depart.” Id. at 3.  The high court determined that the district court did not abuse its discretion in refusing to depart from the harsh sentence because it was a sever offense, the defendant had a high risk of recidivism, and he presented a risk to the public.  Id. at 5. 

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Fair Sentencing Debate

   Fair Sentencing Debate

Last month the Supreme Court of the United States in a 5-4 majority opinion by Justice Stephen G. Breyer, held that the Fair Sentencing Act of 2012 (FSA) is applicable when the criminal was sentenced after the FSA passed but the crime occurred before the passage.  Dorsey v. U.S., 132 S.Ct. 2321, 2335–36. (2012).  Specifically in regards to crack cocaine, the FSA increased the statutory minimum amount of crack cocaine required for sentencing.  For a 5-year sentence the minimum was raised from 5 to 28 grams, and for a 10-year sentence the minimum was raised from 50 to 280 grams.  The consolidated case involved Mr. Dorsey, who was caught with 5.5 grams of crack cocaine, and Cory Hill, who was caught with over 50 grams.  Id. 2329.  Both criminals had committed the crime prior to the FSA passage, thus the trial court did not apply the FSA to their sentencing.  Id.  The Seventh Circuit affirmed both sentences. 

The Supreme Court found that the petitioners were incorrectly sentenced and held that the FSA guidelines apply to those who committed crimes before the Act was passed.  The Court reasoned that it was Congress's clear intent to apply the Act to all offenders sentenced after the passage.  Id. 2332.

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No Jail Time Credit Given

The Kansas Court of Appeals held in June that a defendant at a residential center cannot earn jail time credit while on bond.  State v. Graves, at *8.  Defendant Graves was incarcerated at Johnson County Adult Detention Center after being arrested and charged with criminal threat, stalking, and harassment.  Id. at *1.  Because Graves was unable to post the bond amount assigned to him the district court allowed him to post a minimal bond amount “with the condition that Graves reside at the Residential Center,” operated by the Johnson County Department of Corrections.  Id.

At trial, Graves pled guilty to criminal threat and was sentenced to 12 months’ probation with an underlying prison term of 7 months.  Id.  On appeal Graves argued that he was entitled to jail time credit for the 93 days he spent on bond at the Residential Center pursuant to K.S.A. 21-4614.  Id. at 3.  Under K.S.A. 21-4614, “a defendant is entitled to jail time credit … if the defendant was “incarcerated” pending the disposition of the case.”  Id. at *4.  In affirming the district court’s holding that Graves did not earn “jail time credit,” the court of appeals found that “a defendant residing in a community corrections facility while on bond prior to the disposition of the case is not in “custody” . . . or “incarcerated” for jail credit purposes.”  Id. at *8.

If you have any questions or concerns regarding jail time credit, contact Lindsey Ericskon or Dionne Scherff with Erickson Scherff, LLC at www.ericksonscherff.com for counsel.

Redistricting Kansas For Elections

Redistricting Kansas

After the Kansas Legislature failed to redraw the district boundaries for the United States Congress, the Kansas Senate, the Kansas House of Representatives and the Kansas Board of Education, the Kansas District Court redrew the districts itself stating, “we acted solely to remedy a legislative default.”  Essex v. Kobach, CIV. A, 12-4046-KHV, 2012 WL 2126876 (D. Kan. June 7, 2012).  The lengthy district court opinion alters the four redistricting maps and made for a rush to the filing deadline on Monday, June 11 for new challengers and old challengers wondering where they plan to run in the upcoming elections.    

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Admission of “Other Crimes or Civil Wrongs” Evidence At Trial

Admission of “Other Crimes or Civil Wrongs” Evidence At Trial 

After a late night fight in 2008, Steven Weis was found guilty by jury of two counts of reckless aggravated battery and one count of criminal use of a weapon.  State v. Weis, No. 104,295 2012 WL 2184578 * 2 (June 2012).  On appeal, Weis claimed that the evidence that he slapped his girlfriend before the fight should not have been admitted.  Id. at 5–6.  The admissibility of any and all other crimes and civil wrongs evidence is governed by K.S.A. 60-455.  Generally, passing assertions are not admissible but the Kansas Court of Appeals held to the contrary.  Id. at 5.    

To determine whether the evidence was properly admitted against Weis, pursuant to K.S.A. 60-455, a three part test is applied.  First, the court must determine whether the fact sought to be proven is material or has a legitimate and effective bearing on the case

Second, whether the fact is disputed or at issue in the trial.  Third, whether the evidence presented is relevant to prove the disputed material fact.  Id.

In Weis, the court of appeals first found that the evidence that Weis slapped his girlfriend was “highly disputed.”  Id. at 6.  Second, the court found that the evidence was material, not to the crime charged specifically, but rather to Weis’s claim of self-defense, which is sufficient for a materiality evidence test.  Id.  Finally, the court found that the evidence that Weis slapped his girlfriend was not unfairly prejudicial and was probative: “From the perspective of the State’s eyewitness, it was an integral part of the conflict.”  Id. at 7. 

If you have any questions or concerns regarding evidence admitted at your trial, contact Lindsey Ericskon or Dionne Scherff with Erickson Scherff, LLC at www.ericksonscherff.com for counsel.