Know What your Getting Into When You Plea

Last week the Supreme Court of Kansas remanded a trial court’s decision to not allow a criminal defendant to withdraw his nolo contendere plea.  State v. Garcia, 102,140, 2012 WL 3537848, at *2 (Kan. Aug. 17 2012).

In 2008, defendant Garcia was charged with attempted second-degree murder and intentional aggravated battery.  Id.  After making a plea agreement with the state Garcia was able to plead nolo contendere to reckless aggravated battery and the state dismissed the other charges (as well as reducing from intentional to reckless).  Id.  Because Garcia was unaware that a prior juvenile adjudication would be treated as a personal felony, he received a criminal history score of B rather than the C he expected.  Id.  Thus, his presumptive sentence range more than doubled “from 53 to 60 months to 114 to 128 months.”  Id. 

On appeal, and his motion to withdraw, Garcia argued “he was misled into accepting a plea deal because he believed his criminal history score was C.”  Id. at *3.  Garcia primarily contended that the district judge abused his discretion by requiring Garcia to allege his innocence as a prerequisite to withdraw his guilty plea.  Id. at *7.  However, as the supreme court held, such is the incorrect legal standard to be applied.  Id. at *8.  Under Kansas law, a district judge may consider but not require innocence to be claimed in order to establish good cause for the withdrawal of a plea.  Id. at *8. 

For more information regarding sentencing and plea withdrawals contact Dionne or Lindsey at 913.948.9490.

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Kansas Offender Registration Act (KORA)

 

Kansas Offender Registration Act (KORA)

Early this month, the Kansas Supreme Court held that KORA does not require a defendant to personally use a weapon during the offence for the offender registration requirements to apply.  State v. Nambo  281 P.3d 525 (Kan. 2012).  Defendant Gabriel Nambo argued that the district court and Court of Appeals should not have required him to register under KORA “because the definition of an ‘offender’ under K.S.A. 22-4902(a)(7) does not include unarmed accomplices,” after he pled guilty to aggravated robbery.  Nambo was an accomplice to a three-man robbery.  He and two other men stopped a vehicle, and while one map pointed a gun at the driver and ordered him out of the vehicle, Nambo and the other man jumped in and drove away. 

Under KORA, a person convicted of a felony in which a deadly weapon was used, must register.  By reading the plain language of the statute, the court determined that because K.S.A. 2204902(a)(7), which requires “any person who, on or after July 1, 2006, is convicted of any person felony and the court makes a finding on the record that a deadly weapon was used in the commission of such person felony” to register, is in the passive voice the statute only “requires that a ‘deadly weapon [be] used’ in the commission of the offense.”  Moreover, because there is not an “express requirement that the weapon be used personally by the defendant,” the statute covers accomplices. 

For more information regarding KORA registration contact Dionne or Lindsey at 913.948.9490.

 Don't Forget To Visit Our Website:  www.ericksonscherff.com

Prosecutor Misconduct

Prosecutor Misconduct

The Kansas Supreme Court found last month that a prosecutor committed misconduct in the conviction of defendant John Marshall.  State v. Marshall, No.101,641 (July 2012).  At trial, Marshal was convicted of "burglary of a nonresidence, criminal damage to property, and obstruction of a legal duty."  On appeal, Marshall challenged his conviction based on an eyewitness identification of him. 

Specifically, Marshall argued that "the prosecutor committed misconduct during closing argument by vouching for the eyewitness' credibility."  The court found that the prosecutor's statement that "I would submit to you that he is an honest person," when speaking about the witness, was improper because '"prosecutors may not offer juries their personal opinions as to the credibility of witnesses."'  quoting State v. Stone, 291 Kan. 13, 19 (2010).      

However, the court held that the prosecutor's statements did not give way to Marshall's right to a fair trial.  The court looked at three factors before determining that the prosecutor's statements were not prejudicial:
    First, was the misconduct gross and flagrant?  Second, was the misconduct motivated by ill will?  Third, was the evidence of such a direct and overwhelming nature that the misconduct would likely have had little weight in the mind of a juror." 

The court found that the prosecutor's statement was not gloss and flagrant, not motivated by ill will, and that "there is no reasonable possibility the prosecutor's statements affected the verdict in this case." 






For More Information Please Contact:

Erickson Scherff, LLC
Attorneys at law
10990 Quivira  Suite 200
Overland Park, KS 66210
Tel (913) 948-9490
Fax (913) 491-6398


Don't Forget To Visit Our Website:

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