Erickson Scherff, LLC News

Tuesday, July 10, 2012

Kansas Criminal Law Bills That Took Effect June 1

Kansas Criminal Law Bills That Took Effect June 1

1. Senate Bill 307: Criminal Procedure

Amends the felony murder statute to exclude lesser degrees of first-degree murder. Therefore, a defendant may be convicted twice of murder in the first degree because there is no lesser degrees of murder in the first degree.
Adjusts speedy trial computations
KSA 21-5909, which makes it illegal to intimidate a witness, is amended to include persuading a witness from making a victimization report to SRS.
http://www.kslegislature.org/li/b2011_12/measures/documents/sb307_enrolled.pdf

2. House Bill 2318: Drug Code Crimes

Creates the crime of endangerment, which is defined as “recklessly exposing another person to a danger of great bodily harm or death.” Such a crime is a class A person misdemeanor.
Allows for the unilateral theory of conspiracy, making it statutorily immaterial whether the co-conspirator lacked the actual intent to commit the underlying crime if the defendant believed the co-conspirator had intent.
Adds abandonment of a child to the list of inherently dangerous felonies
Adds a number of new drugs to the drug code sentencing grid
http://www.kslegislature.org/li/b2011_12/measures/documents/hb2318_enrolled.pdf

3. House Bill 2568: Kansas Offender Registration Act

Revision of the offender registration responsibilities of the courts
Revision of offender registration requirements in relation to length of registration

4. Electronic Cigarettes

Just like the real thing is off limits for those under the age of 18, electronic cigarettes are also banned for sale to minors or possession by minors.

For More Information Please contact:

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Friday, July 6, 2012

A Good Lawyer Takes Care of their Client Regardless Of Their Charges

On March 30th the Kansas Supreme Court reversed the findings of the court of appeals and district court, holding that a person convicted of misdemeanor criminal sodomy are not required to register as a sex offender. State v. Coman, 100,494, 2012 WL 1066115 *1 (Kan. Mar. 30, 2012).

The defendant, Joshua Coman, pled guilty to a misdemeanor criminal sodomy charge of sodomy between a person and an animal under K.S.A. 21-3505. The district court, in its sentencing proceedings, found that Coman was required to register as a sex offender according to the Kansas Offender Registration Act (KORA), K.S.A. 22-4901. KORA contains a list of crimes that require the registration for persons who committed sexually violent crimes. The crime committed by defendant Coman is not among the crimes on the KORA list. However, KORA also includes a “catch-all” provision, under which registration is required for crimes involving sexually motivated acts.

When reversing the court of appeals and district court, the Kansas Supreme Court found that it was not of the legislature’s intent to make registration dependent on the sexual motivation of the defendant. The court held that “that the legislature did not intend to include the acts constituting the sex crime defined in K.S.A. 21–3505(a)(1) to be included within the catch-all provisions of K.S.A. 22–4902(c)(14).”

Kansas Legislature Adjourns

The Kansas Legislature adjourned on March 31st, signifying an end to the 2012 legislative session. A summary of the bills that have become law and are on their way to a decision by the governor can be found by the Kansas Legislative Research Department at http://skyways.lib.ks.us/ksleg/KLRD/Publications/2012_preliminary_bill_summary.pdf.

A few criminal highlights include:

HB 2737: Consecutive Terms for Juvenile Offenders. This bill provides that juveniles who commit offenses while in a juvenile correctional facility may be adjudicated to serve a consecutive term of confinement in a juvenile correctional facility.

HB 2469: Application Fees for Indigent Defense Services: House Bill 2469 requires defendants to pay application fees of $100 when requesting indigent defense services for assistance in a proceeding concerning a violation of a condition of release.

HB 2465: Lifetime Electronic Monitoring for Certain Offenders: Bill requires courts to impose lifetime electronic monitoring for defendants sentenced to prison for sexual crimes involving minors.

Admissibility of Prior Convictions

Defendant Bernard Preston was convicted in Johnson County for possession of cocaine with intent to sell, possession of marijuana, and possession of cocaine without a tax stamp. State v. Preston, 2012 WL 975428, No. 98,629, at *3 (Kan. March 23, 2012). Before trail, Preston objected to the state’s motion to admit evidence that Preston had a prior conviction for conspiracy to possess cocaine with intent to distribute. Id. The district court allowed the evidence, rejecting Preston’s argument for inadmissibility based on the fact that he had disputed the drugs were his. Id.

After the court of appeals affirmed the district court, the case was brought to the Kansas Supreme Court, where the issue heard was whether “the prior conviction was inadmissible under K.S.A. § 60-455 because Preston’s intent was not in dispute.” Id. at *4.

The Kansas Supreme Court first held that Preston’s prior conviction was not admissible because he disputed that the drugs were his. Id. at *6. Second, the court found that the improper admission of evidence was not harmless. Id. at *8. Thus, the court reversed the court of appeals and remanded Preston’s case for a new trial. Id.

Fourth Amendment Searches Of A Mobile Vehicle: Does not Require A Warrant!

Fourth Amendment Searches of a Mobile Vehicle: Does not require a warrant!

Late last month, the Kansas Supreme Court affirmed a judgment of the Court of Appeals, which reversed the district court in State v. Sanchez-Loredo, 272 P.3d 34, 40 (Kan. 2012). The defendant was charged for drug crimes after officers first conducted a drug dog sniff of her vehicle and then a search after detaining the vehicle for 75 minutes in order to obtain a search warrant, which resulted in a large quantity of methamphetamine and drug paraphernalia being found. Id. at 36. The district court granted the defendant’s motion to suppress the evidence obtained from the vehicle search, reasoning that “‘it was practicable to obtain the search warrant prior to the stop and detention of the Defendants.”’ Id. at 37. The court of appeals reversed the district court’s decision, holding that a ‘“search without a warrant is allowed when probable cause is combined with exigent circumstances; in the case of potential evidence in a car, the mobility of the car provides the exigent circumstances.”’ Id.

On appeal to the Kansas Supreme Court, the issue was whether “the mobility of a vehicle provides exigent circumstances ot search the vehicle regardless of the circumstances.” Id. at 36.

The United State Constitution’s Fourth Amendment protects citizens against warrantless searches. However, an exception to the general rule can be found where an officer has probably cause plus exigent circumstances to conduct a search. The Kansas Supreme Court set Fourth Amendment precedent in State v. Sanchez-Loredo that “the mobility of a vehicle fulfills the requirement of exigent circumstances, so that a warrantless vehicle search is permitted based solely on probable cause.” Id.