appellate decisions
of a traffic stop to get a drug dog on site, but federal cases are cited and discussed. No authority suggests due diligence requires officer to call a drug dog as soon as the officer reasonably suspects criminal activity is occurring, particularly where other factors, such as consent, show no need for a drug dog at the time. Under facts in this case, trooper was diligent in trying to get drug dog as soon as possible under the circumstances. STATUTES: K.S.A. 2018 Supp. 22-3608; K.S.A. 222402(1) CRIMINAL LAW—CRIMINAL PROCEDURE—SECURITIES—SENTENCES—STATUTES STATE V. MORLEY SHAWNEE DISTRICT COURT—REVERSED, SENTENCES VACATED, REMANDED NO. 120,017—AUGUST 16, 2019
FACTS: Four Kansas investors lost $845,900 as a consequence of Morley’s actions in selling preferred stock shares in Summit Trust Company. Morley was indicted on multiple counts of securities fraud, sale of unregistered security and acting as an unregistered issuer agent. Pursuant to plea agreement, Morley entered no contest plea to one count of securities fraud and one count of acting as unregistered issuer agent, and State dismissed remaining ten counts. Both convictions have presumptive prison terms, and are subject to special rule of presumed imprisonment for violations of Kansas Uniformed Securities Act. Morley’s criminal history included similar wrongdoing that culminated in a 2006 consent order issued by Maryland Securities Commissioner permanently barring Morley from the securities and investment advisory business in that state. District court imposed concurrent prison terms, but granted Morley’s motion for dispositional departure, placed Morley on probation for 36 months, and ordered payment of $845,900 in restitution. Sole basis stated for the dispositional departure was Morley taking responsibility for his actions. State appealed. ISSUES: (1) Substantial competent evidence for acceptance of responsibility, (2) substantial and compelling reason to support a dispositional departure HELD: Kansas law applicable to departure decisions is summarized. Under facts of this case, Morley’s acceptance of responsibility for his crimes may be a valid nonstatutory mitigating factor in support of a downward durational departure sentence, but there was no substantial competent evidence to support that factor. As in State v. Theurer, 50 Kan. App. 2d 1203 (2014), motivation for Morley’s no contest pleas was not to accept responsibility but to mitigate his accountability by obtaining a very favorable outcome. And while Morley agreed to pay restitution, he offered no plan and had no real financial ability to pay all or a substantial part of victims’ losses given his age, limited income and pending bankruptcy proceedings.
Even if substantial competent evidence supported this mitigating factor is assumed, in this case the district court erred in its legal conclusion that this factor was real, substantial, and compelling such that the district court was forced by the case facts to abandon the status quo, venture beyond presumptive prison sentences, and grant probation. Reversed and remanded to district court for resentencing. STATUTES: K.S.A. 2018 Supp. 17-12a508(a)(5), 216604(b)(1), -6604(b)(2) ,-6815(a), -6815(c)(1)(A)-(E), -6817(a) (1), -6817(a)(4), -6820(f); K.S.A. 17-12a301, 12a402, -12a501, 22-3209(2) CRIMINAL PROCEDURE—MOTIONS—SENTENCES STATE V. SCHULZE SALINE DISTRICT COURT—SENTENCE VACATED AND CASE REMANDED NO. 119,184—JULY 26, 2019
FACTS: Schulze entered no contest plea to felony theft. District court imposed sentence using a PSI report that showed a criminal history score of C and listed 18 prior convictions. Shortly after sentencing, court services provided an amended PSI that increased criminal score to B and listed 23 prior convictions, including two person misdemeanors not included in the original report. State moved to correct an illegal sentence. District court granted the motion and imposed an increased sentence, holding the original sentence violated applicable statutory provisions requiring all of a defendant’s prior convictions to be counted. Schulze appealed. ISSUE: (1) Sentencing - error in presentence report HELD: Schulze’s original sentence controls. State has burden of proving the defendant’s criminal history score, and if it fails to find one or more convictions, it is prohibited from later amending, and ultimately increasing, the severity level of the defendant’s criminal history for the crime(s) at issue. Based on State v. Dickey, 301 Kan. 1018 (2015), and State v. Weber, 297 Kan. 805 (2013), State cannot later challenge the factual basis for Schulze’s criminal history score when it failed to object to it before the district court. Invited error rule, and distinction between factual and legal stipulations, are discussed. STATUTES: K.S.A. 2018 Supp. 22-3504; K.S.A. 2017 Supp. 21-6810(c), -6810(d)(6), -6811(a), -6814(a), -6814(b), 22-3504; K.S.A. 2016 Supp. 21-6804(a)
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