Erickson Scherff, LLC News

Friday, December 20, 2013

From Erickson Scherff Happy Holidays and a Safe New Year

We at Erickson Scherff, LLC, wish you a Fun Holiday Season and a Happy and Safe New Year.

Erickson Scherff
10990 Quivira, Suite 200; Overland Park, KS 66210
Phone: (913) 948-9490
Office Hours: 8 a.m. to 5 p.m. Monday-Friday

Monday, August 26, 2013

Holder Lowers Manditory Minimum - A Strong First Step

For More Information Please Contact:

Erickson Scherff, LLC
Attorneys at law
10990 Quivira Suite 200
Overland Park, KS 66210
Tel (913) 948-9490
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Tuesday, March 26, 2013

Evidence: Improper Admission of Prior Conviction Evidence

Evidence: Improper Admission of Prior Conviction Evidence

On March 8 the Supreme Court of Kansas held that the Shawnee District Court’s decision to allow evidence of a prior conviction to be admitted based on a “substantially similar” determination was incorrect. State v. Longstaff, 100,112, 2013 WL 856365 at *9 (Kan. Mar. 8, 2013). Defendant Robert Longstaff was convicted of rape of a child under 14 and aggravated indecent liberties with a child. Id. at 1. During trial the district court granted the state’s request to admit Longstaff’s 1989 conviction for attempted aggravated incest, “claiming that the evidence showed intent, plan, knowledge, identity, and absence of mistake or accident.” Id. at 4. On appeal, Longstaff argued that the district court erred in admitting the evidence regarding his previous conviction because such evidence was not “strikingly similar” to the crimes he was currently charged with so to constitute a signature act. id. at 5–6.
During Longstaff’s trial, K.S.A. 6—455 limited the admission of prior conviction evidence by providing that such evidence is inadmissible unless being used to prove “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Id. at 6; K.S.A. 60-455. The district court in Longstaff’s case found that the evidence was relevant for showing intent, plan, knowledge, and absence of mistake or accident – characterizing the evidence as “sufficiently similar.” Id. at 4.

However, as noted by the supreme court, under Kansas case law the standard for determining the level of similarity required in order for evidence of a prior conviction to be admissible is “strikingly similar”. Id. at 7.
The court acknowledged that there were similarities between Longstaff’s prior conviction and the current charges, but that such similarities were not “striking”:
While we are similarities between the crimes, these similarities do not rise to the level of being so strikingly similar in pattern, or so distinct in method of operation, as to be signature as required [by case law].
Id. at 9.

If you any questions regarding the improper admission of a prior conviction contact Lindsey Erickson or Dionne Scherff, LLC at www.ericksonscherff.com

Motion to Correct Illegal Sentence

Motion to Correct Illegal Sentence

In State v. Trotter, 295 P.3d 1039 (Kan. 2013), the Kansas Supreme Court explained the manner by which a defendant may properly raise claims in a motion to correct a legal sentence under K.S.A. 22-3504. In Trotter, the defendant argued that the district court erred in denying his motion to correct an illegal sentence – challenging “whether the information was fatally defective and deprived the district court of jurisdiction to convict him of capital murder.”
Id. at *3.
K.S.A. 22-3504 applies when a sentence is illegal. Id. The term “illegal sentence” has been defined by case law to mean: “(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in the character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.” Id.

The court emphasized that the relief available to convicted individuals under K.S.A. 22-3504 is correction of sentence, and not reversal of a conviction, which is what Mr. Trotter sought. Id. Specifically, such a motion must attach the sentence and not argue that the complaint was defective, because such challenges the conviction. Id.
Finally the court noted that in order to overturn his sentence pursuant to K.S.A. 22-3504, Trotter must first seek to obtain a reversal of his conviction. Id. at 4.

If you any questions regarding a motion to correct illegal sentence contact Lindsey Erickson or Dionne Scherff, LLC at www.ericksonscherff.com

Monday, February 4, 2013

Assistance of Counsel for Probation Proceedings

Assistance of Counsel for Probation Proceedings

Most people understand that a criminal defendant has a constitutional Due Process Clause right under the Sixth and Fourteenth Amendments to the right of counsel. However, some fail to recognize that the right of counsel extends to probation proceedings. See State v. Galaviz, 101,084, 2012 WL 6720627, at *5-7 (Kan. Dec. 28, 2012). The right to counsel includes the right to conflict-free counsel. Id. at *7.

Jose Galaviz was placed on probation after pleading guilty to two charges, but 15 months after sentencing violated the conditions of his probation. Id. at 2. In his probation revocation proceeding, Galaviz was appointed an attorney to represent him. Id. at 2. Galaviz’s appointed attorney had also previously served as the guardian ad litem for the victim of one of Galaviz’ crimes. Id. at 1.

On appeal from his probation revocation, Galaviz argued that he was denied his right to effective assistance of counsel because his attorney’s position as the guardian ad litem of the victim created a conflict of interest. Id. The Supreme Court of Kansas found that Galaviz’s probation revocation could not be automatically reversed because a timely object to the concurrent representation was not made. However, Galaviz could seek reversal by demonstrating in a post conviction proceeding that the conflict of interest affected the adequacy of the attorney’s representation.

Ultimately the court found that the record on appeal was insufficient for determining whether the conflict of interest affected the attorney’s adequate representation. Id. at *18. Thus, the court reversed the Court of Appeals affirmation of the district court’s determinations to revoke probation and remanded the case to determine the nature of the conflict of interest, and whether the conflict requires reversal of the probation revocation. Id. at 19.

If you any questions concerning attorney conflicts of interest, contact Lindsey Erickson or Dionne Scherff, LLC at www.ericksonscherff.com for counsel.

Unconstitutional Search

Unconstitutional Search

The Fourth Amendment of the Constitution protects persons against “unreasonable searches and seizures.” If a police officer has lawfully stopped (i.e. seized) a person and then conducts a search, the issue become whether the search was reasonable in relation to the stop. Specifically, courts must consider whether the search as conducted was reasonable in scope or consent was freely and voluntarily given for the search. State v. Spagnola, 289 P.3d 68, 73 (Kan. 2012).

In June of 2007, Officer Jones lawfully stopped Shuan Spagnola when he failed to stop for a stop sign. Id. at 70. When pulling his vehicle over, Spagnola drove the car “onto the curb and into a grassy area next to the curb and then back off of the curb before coming to a complete stop.” Id. Additionally, before approaching Spagnola Jones witnessed him reach down towards the car console – “suggesting the presence of a weapon and danger to law enforcement.” Id. at 70, 73. Jones then asked Spagnola to exit the vehicle and for his consent to search his pockets, which Spagnola gave. Id. at 71. Jones found baggies in zipped pocket that contained methamphetamine. Id.

The Kansas Supreme Court found that Jones had legitimately stopped Spagnola when he violated the law by not stopping at the stop sign. Id. at 73. Moreover, the court found that Jones reasonably prolonged the stop because he had reason to believe Spagnola was impaired and had a weapon. Id.

However, the court found that Jones’s thorough search of Spagnola’s pockets was unreasonable and a thus a violation of Fourth Amendment protections because a warrantless search for weapons on a person must be limited to a pat-down of the outer clothing. Id. at 74.

Furthermore, in regards to consent, the court held that Spagnola could not have possibly given free and voluntary consent for the search of his pockets – as is required – because “standing with his back to the offices, with his hands behind his back and his fingers interlaced… was not a posture or an environment in which it can be said that consent was voluntarily given free from coercion.” Id. at 76.

If you any questions regarding a search resulting from a traffic stop, contact Lindsey Erickson or Dionne Scherff, LLC at www.ericksonscherff.com for counsel.

Wednesday, December 5, 2012

Cruel and Unusual Punishment Challenge...

Cruel and Unusual Punishment

Earlier this month, the Kansas Court of Appeals considered whether a mandatory minimum sentence of 25 years constituted cruel and unusual punishment and a violation of the Constitution’s Eighth Amendment. State v. Frost, 106,375, 2012 WL 5489396, at *2 (Kan. Ct. App. Nov. 9, 2012). Ultimately, the court affirmed the Sedgwick District Court, refusing to overturn the defendant’s conviction of aggravated indecent liberties with a child and sentence to life imprisonment with a mandatory minimum term of 25 years. Id.

After pleading guilty to aggravated indecent liberties with a child, the trail court sentenced defendant Kevin Frost to a “hard 25,” life imprisonment with a mandatory minimum term of 25 years. Id. On appeal, Frost argued that “his sentence constitut[ed] cruel and unusual punishment under the United States Constitution.” Id. Specifically, Frost’s challenged the statutory requirement, leading to his sentence, “where the court implements the proportionality standard by certain categorical restrictions.” Id. The court reasoned that the sentence is not unconstitutional and is justified “because the accepted penological goals of retribution, deterrence, incapacitation, and rehabilitation are met.” Id. at 8.