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Retroactively Applying Limited Fact Finding for Out of State Prior Convictions to Illegal Sentence Challenges
State v. Gales, No. 119,302 (Kan. Oct. 4, 2019).Issue: Should limited fact finding for out of state prior convictions to illegal sentence challenges apply retroactively?Answer: Yes. Limited fact finding for out of state prior convictions to illegal sentence challenges was not a change in the…
“Reckless Disregard for Causing Fear” is Unconstitutionally Over Broad
State v. Boettger, No. 115,387 (Kan. Oct. 25, 2019).Issue: Is the Kansas criminal threat statute, which allows conviction if a person makes a threat in reckless disregard of causing fear, constitutionally over broad?Answer: Yes. Recklessness is an unconstitutionally over broad mens rea…
Updated Transitional Release Requirements
In re Care & Treatment of Quillen, No. 120, 184 (Kan. Ct. App. Oct. 18, 2019).Issue: Is the State required to prove “serious difficulty in controlling behavior,” when arguing a person does not meet the qualifications for transitional release?Answer: Yes. The State must prove “serious difficulty…
U.S. Supreme Court to Review Whether an Officer Can Initiate a Traffic Stop Based Solely upon the Status of the Registered Owner
Nick ApelNick is a 3L at the University of Kansas School of Law. Nick received his Bachelor’s degree in Mechanical Engineering from the University of Kansas. Professionally, Nick is interested in patent law. In his free time, Nick enjoys spending time with family and friends. Nick is also a…
Lifetime Registration of Juvenile Sex Offenders Found Constitutional
State v. N.R., No. 119,796 (Kan. App. Sept. 27, 2019) [pdf]Issue: The Kansas Offender Registration Act (KORA) requires lifetime registration as a sex offender for juveniles convicted of severity level 1 felonies. N.R. was convicted of rape when he was fourteen, and was later…
Protection from Stalking Orders Cannot Restrict Speech
State v. Smith, No. 119,919 (Kan. Ct. App. Sept. 27, 2019).Issue: Smith was convicted for violating her protection from stalking (“PFS”) order that prohibited her from making disparaging statements in public about Perez. Does this provision in the PFS order violate Smith’s First Amendment rights?…
Party Benefitting from Erroneous Judicial Comment Bears Burden
State v. Boothby, No. 116,505 (Kan. Sept. 6, 2019).Issue: A district judge made an erroneous comment regarding Boothby’s case in front of the jury. Is an erroneous judicial comment made in front of a jury that is not part of the jury instruction or legal ruling analyzed under the…
An Untimely Appeal Under 28 U.S.C. § 2255
United States v. Salazar, No. 19-1119 (10th Cir. Aug. 16, 2019).Issue: Defendants may appeal a sentence under 28 U.S.C. § 2255 but, with limited exceptions, must do so within one year. The defendant was sentenced on March 20, 2017 and appealed his sentence in January 2019. The…
Time in Jail Awaiting Sanction Should be Credited Toward That Sanction
State v. Chardon, No. 119464 (Kan. Ct. App. Aug. 23, 2019).Issue: Defendant Christian Chardon was arrested for violating probation. Unable to make bond, he was in jail for 65 days awaiting his disposition hearing. At the hearing, the court sanctioned Chardon to serve 60 days…
Acceptance of Responsibility Sufficient for Dispositional Departure
State v. Morley, No. 120, 017 (Kan. Ct. App. Aug. 16, 2019). Issue: A district court may consider a defendant’s acceptance of responsibility as a mitigating factor to warrant dispositional departure if the court articulates that reason. Does the defendant’s accepting responsibility for his…