TOPEKA—A three-judge panel of the Kansas Court of Appeals will hear oral arguments Tuesday, June 17, at the Ellis County Courthouse, 1204 Fort Street, Hays.
Judge Kim R. Schroeder will be the presiding judge for the panel that also includes Judge Patrick D. McAnany and Senior Judge Edward Larson.
Larson, of Hays, was a justice on the Kansas Supreme Court from 1995 to 2002. He has served as a senior judge since his retirement and this is the last time he will sit with the court as a senior judge.
Attorneys for each side of a case are allotted time to present their arguments and judges can ask questions. The court will then take each case under consideration. Written decisions are issued later, usually within about 60 days.
Following are summaries of the cases to be heard:
9 a.m. – Tuesday, June 17, 2014
No. 110,058: Brandy Kara L. Stewart v. Timothy A. Stewart
Brandy and Tim Stewart married in Missouri in 2004. While married, they lived in Missouri, Arizona, Tennessee, and, most recently, Texas. They lived in Texas from 2009 to October 2012, when Brandy left with their two children to come to Ellsworth, Kansas, while Tim was away on business. Brandy then initiated proceedings under Kansas' Protection From Abuse Act, K.S.A. 60-3101 et seq. (PFA Act). The Ellsworth County District Court entered temporary support and custody orders before ultimately issuing a one-year protection from abuse order against Tim. Tim argues the district court lacked jurisdiction to enter any orders against him under the PFA Act, so they should be declared void.
No. 109,095: State of Kansas v. Scott Thomas Hulsey
Hulsey was convicted of two counts of aggravated indecent liberties of a child, one count of aggravated criminal sodomy, and 89 counts of sexual exploitation of a child stemming from his abuse of a minor, and possession of child pornography. He appeals, claiming his convictions were multiplicitous, that the state failed to present sufficient evidence regarding the ages of individuals in the pornographic images, that the prosecution inappropriately commented on his post arrest silence, that his lifetime postrelease supervision is unconstitutional, and that the Saline County District Court inappropriately considered his criminal history in sentencing without proving his criminal history to a jury.
No. 109,999: State of Kansas v. Kevin James Hazlett
The Graham County District Court dismissed aggravated battery charges stemming from a head-on collision on U.S. Highway 24. The state appeals, arguing the evidence established probable cause to believe Hazlett was driving recklessly. The evidence at the preliminary hearing included testimony that Hazlett was driving in the oncoming lane of traffic with his head down, and that an open cell phone was found on the driver’s side floorboard of his vehicle after the collision.
No. 109,800: State of Kansas v. Traci E. Goldsberry
Goldsberry pled no contest to rape of a 13-year-old boy. The Saline County District Court departed to a 96-month prison sentence with lifetime postrelease supervision. The district court denied Goldsberry’s motion to declare a lifetime postrelease sentence cruel or unusual, and she appeals the district court’s ruling on that motion.
1:30 p.m. Tuesday, June 17, 2014
No. 108,502: State of Kansas v. William Lance McGowan
William Lance McGowan appeals his convictions for one count of aggravated indecent liberties with a child and one count of aggravated solicitation of a child. The Lane County District Court imposed a controlling life sentence without the possibility of parole for 25 years. McGowan appeals, arguing: (1) the district court erred by not suppressing evidence of a pornographic text file stored on McGowan's computer; (2) the district court erred by not giving a jury instruction defining "lewd touching"; (3) the district court erred by failing to give a unanimity instruction on the aggravated indecent liberties charge; (4) the prosecutor committed reversible misconduct by misrepresenting its burden of proof during closing argument; (5) cumulative errors deprived McGowan of a fair trial; (6) McGowan's life sentence is disproportionate and violates Section 9 of the Kansas Constitution Bill of Rights; and (7) the district court imposed an unauthorized sentence of lifetime postrelease supervision with electronic monitoring.
No. 109,602: State of Kansas v. Wesley Gene Hall
A jury found Wesley Gene Hall guilty of one count of unlawful distribution of a controlled substance and not guilty on one count of battery. He appeals his conviction, asserting two jury instruction errors. First, he claims the Greeley County District Court erred by refusing to instruct the jury on the defense of compulsion. The district court refused to give the instruction because it felt there was no factual basis in the evidence to form Hall's "reasonable belief" that he was at risk for death or great bodily harm. Second, Hall claims the district court improperly instructed the jury on the mental culpability it was required to find for the unlawful distribution charge. Specifically, the district court instructed the jury that it could find him guilty if it found he committed the act "intentionally, knowingly, or recklessly," but the complaint against him alleged that he had "intentionally" committed the act.
No. 110,209: State of Kansas v. Timothy Michael Lobmeyer
Timothy Lobmeyer appeals the Finney County District Court's ruling on the state's motion to correct illegal sentence. Lobmeyer had received probation with 64 months' imprisonment underlying and 24 months' postrelease supervision for his convictions of two counts of indecent liberties with a child. His probation was later revoked and he was ordered to serve his underlying sentence. The state then filed a motion to correct illegal sentence because Lobmeyer is statutorily required to be sentenced to lifetime postrelease supervision for his offenses of conviction. The district court agreed and modified Lobmeyer's sentence accordingly.
Lobmeyer appeals the district court's decision because he claims the district court imposed a legal, lesser sentence when it revoked his probation and, therefore, did not have jurisdiction to modify his sentence. He also asserts that lifetime postrelease supervision violates the United States' and Kansas' constitutional prohibitions against cruel and unusual punishment.