TOPEKA — A three-judge panel of the Kansas Court of Appeals will hear oral arguments Nov. 15 and 16 at the Barton County Courthouse in Great Bend.
Judges Anthony J. Powell, G. Joseph Pierron and Stephen D. Hill will hear oral arguments in six cases at dockets that convene at 9 a.m. and 1:30 p.m. on Tuesday, Nov. 15, and three cases at the docket that convenes at 9 a.m. on Wednesday, Nov. 16. The three-judge panel will also decide 12 cases without argument on Nov. 16 based on the parties’ written submissions.
After each docket session, the judges will be available to answer questions from the public about the court and court procedures.
Powell, the presiding judge for the panel, said that the Court of Appeals regularly hears cases throughout the state.
“Nearly every month, panels of Court of Appeals judges hear cases in Wichita, Topeka and Kansas City,” he said. “On occasion, we visit other parts of the state, like Great Bend, so our court is accessible to the people of Kansas.”
Powell added that in addition to making the court accessible to more Kansans, hearing cases around the state saves money for the parties.
Attorneys for each side will have an opportunity to present arguments to the judges, and the judges will have a chance to ask questions. The court will then take each case under consideration and will issue a written decision at a later date, usually within 60 days.
The appeals to be heard in Great Bend arose in Barton, Kiowa, Lyon, McPherson, Mitchell, Reno and Thomas counties. In addition to the Court of Appeals panel hearing cases in Great Bend, other three-judge panels of the Court of Appeals will be hearing cases in Ottawa, Topeka, and Wichita. All hearings are open to the public.
There are 14 judges on the Court of Appeals, and the judges sit in three-judge panels to decide cases. In fiscal year 2015, the Court of Appeals resolved appeals in 1,978 cases, including 1,340 in which the court issued a formal written opinion.
Barton County Cases
The nine cases to be heard in Great Bend include two from Barton County. Both are scheduled for 1:30 p.m. Tuesday, Nov. 15. One case involves the sentence of a man convicted on drug charges; the other involves a woman convicted of identity theft, whose conviction was set aside by the Barton County District Court.
Appeal No. 114,505: State of Kansas v. Christopher D. Wilson: Wilson was convicted of aiding and abetting the manufacture of methamphetamine. Wilson filed a motion for a departure from the presumptive prison sentence based on his claim that he played a minor role in the crime and the degree of harm was less than typical for such an offense.
The Barton County District Court granted Wilson’s request and placed him on probation. The state filed a motion to correct an illegal sentence, asserting that K.S.A. 2011 Supp. 21-5703(d) prohibited the district court from lawfully sentencing Wilson to probation. The district court denied the state’s motion, finding that K.S.A. 2011 Supp. 21-5703(d) did not apply to Wilson and further ruling that the statute was unconstitutional.
The state appealed, and a panel of this court agreed with the state that the statute prohibited the district court from placing Wilson on probation. The case was remanded for resentencing and for additional findings of fact and conclusions of law regarding the district court’s ruling that the statute is unconstitutional. Ultimately, the district court ruled that the statute was not unconstitutional and sentenced Wilson to 169 months in prison. Wilson now appeals, asserting that K.S.A. 2011 Supp. 21-5703(d) violates the Equal Protection Clauses of the state and federal Constitutions.
Appeal No. 114,660: State of Kansas v. Melissa Valle: After a Barton County jury convicted Melissa Valles of identity theft for using a stolen Social Security number to gain employment, Valles filed a motion to arrest judgment alleging the complaint was defective. The Barton County District Court granted the motion, and Valles’ conviction was set aside. The state appeals the granting of the motion arguing the complaint was not defective and the district court improperly relied on immigration status as a factor for granting the motion.
Tuesday Nov. 15 9 a.m.: Appeal No. 115,031: Cornelio Salazar-Moreno v. State of Kansas
A Reno County jury convicted Salazar-Moreno of rape, two counts of aggravated indecent liberties, and adultery; a panel of the Court of Appeals affirmed his convictions and sentence. Salazar-Moreno then filed a K.S.A. 60-1507 motion alleging ineffective assistance of trial and appellate counsel. After an evidentiary hearing, the district court found that trial counsel’s performance was deficient. However, because Salazar-Moreno was not prejudiced by the deficiency, the district court found that trial counsel’s assistance was not ineffective. The district court also found that appellate counsel had provided ineffective assistance of counsel and granted Salazar-Moreno a new direct appeal. Salazar-Moreno appeals the district court’s finding that trial counsel provided effective assistance of counsel.
Appeal No. 115,303: In the Matter of the Marriage of Karen Thummel and William J. Thummel: Karen and Bill Thummel had been married for 20 years when they separated in 2013. The parties agreed on all matters concerning custody, visitation and support of their minor children but were unable to agree on a division of the parties’ property and debts, on payment of spousal maintenance to Bill, and on the value of Karen’s dental practice. After a two-day trial, the Thomas County District Court made a division of property and debts, denied payment to Bill of spousal maintenance, and valued Karen’s dental practice at $248,340. Bill appeals the district court’s decisions, arguing the district court abused its discretion in denying him spousal maintenance, in making its division of assets and debts, and in determining the goodwill value of Karen’s dental practice.
Appeal No. 115,819: Kevin M. Trear v. Susan J. Chamberlain, Nathan Goodell, and Jamie Jasnoski: In 1986, Kevin Trear bought a tract of land from Susan Chamberlain and her husband. The contract for the sale of the tract granted Trear a right of first refusal in the Chamberlains’ adjoining land. After her husband’s death, Susan decided to sell her land and offered it to Trear under the terms of the contract. Trear did not purchase the land, and Chamberlain put the land on the market. The land did not sell on the market, and a year later Susan sold a portion of the land to Nathan Goodell and Jamie Jasnoski without first offering that portion to Trear. Trear sued to enforce his contractual right of first refusal; Susan filed a motion for summary judgment. The Lyon County District Court granted summary judgment, holding that the right of first refusal violated the rule against perpetuities; however, the district court also found the right of first refusal did not violate the statute of frauds and Susan did not perform her duties under the right of first refusal even though the provision was invalid. Trear appeals the grant of summary judgment and Susan cross-appeals the decision regarding the statute of frauds and her performance of the contract.
Tuesday, Nov. 15, 1:30 p.m.: Appeal No. 115,932: State of Kansas v. Great Plains of Kiowa County Inc.
Great Plains of Kiowa County Inc. is a private, not-for-profit entity that leases a hospital facility from a county hospital board under K.S.A. 19-4611(a) and operates the facility as Kiowa County Memorial Hospital. In 2014, the Kiowa County Attorney sent a written request for documents to the hospital under the Kansas Open Records Act. Great Plains replied that it was not an entity subject to KORA. The county, on behalf of the State of Kansas, filed suit alleging Great Plains violated KORA. Both parties filed motions for summary judgment. After limited discovery, the Kiowa County District Court granted the state’s motion, finding that Great Plains was a public agency under K.S.A. 45-217(f) and subject to KORA, and denied Great Plains’ motion. Great Plains appeals.
Wednesday, Nov, 16, 9 a.m.: Appeal No. 115,605: State of Kansas v. Darla Conners: A Buhler police officer entered Conners’ rental house without a search warrant or her consent. Using information obtained during that initial entry, the police officer obtained a warrant and conducted a search of the rental house. After seizing evidence of marijuana cultivation, the state charged Conners with multiple drug crimes. Conners asked the trial court to suppress the evidence, arguing it was fruit of the police officer’s initial unlawful entry into her rental house. The Reno County District Court granted Conners’ request. The state now appeals, contending the trial court erred in its ruling.
Appeal No. 114,123: Matthais Schroeder v. Dana Brewer: Dana Brewer was appointed as the administrator and attorney for the estate of Carrie Schroeder. Carrie was Matthias Schroeder’s mother. After a settlement agreement was reached in the probate matter, Matthias sued Brewer for breach of contract, negligence, fraud, and misrepresentation. Matthias claimed that Brewer agreed to charge a total of 3 percent of the estate for his services but that he failed to abide by this agreement and, as a result, the settlement agreement was not finalized until weeks later. Because of the delay, Matthias claimed he was unable to complete the sale of real estate from the estate at a higher price than what it ultimately sold for at auction. The Mitchell County District Court granted summary judgment in favor of Brewer. Matthias appeals.
Appeal No. 114,435: Jeffrey Nelson v. State of Kansas: After the Kansas Supreme Court upheld Nelson’s convictions for first degree murder, burglary and three counts of forgery and his hard-50 sentence for the murder conviction, Nelson filed a K.S.A. 60-1507 motion, alleging ineffective assistance of both trial and appellate counsel. After an evidentiary hearing, the McPherson County District Court found neither trial counsel nor appellate counsel was ineffective and denied the motion. Nelson appeals the district court’s denial, arguing (1) his trial counsel was ineffective for failing to communicate with him and (2) his appellate counsel was ineffective for failing to file a writ of certiorari with the United States Supreme Court, which may have resulted in a ruling that his hard-50 sentence was unconstitutional.