KANSAS COURT OF APPEALS

STATE V. BAKER, NO. 118695, AFFIRMED.

1. The State waives the ability to raise a statute of limitations defense to a K.S.A. 60- 1507 motion in the appellate court if it did not raise that defense in the trial court.

2. The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel. To show a violation, the defendant must meet the two-part test set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984): that the attorney's conduct fell below an objective standard of reasonableness and that the attorney's inadequate conduct prejudiced the defendant.

3. Prejudice is shown if there is a reasonable probability that the proceeding's outcome would have been different had the representation been adequate. A reasonable probability is one sufficient to undermine confidence in the outcome.

4. To determine Strickland prejudice in cases alleging a failure to present mitigation for purposes of sentencing, the court must reweigh the evidence in aggravation against the totality of available mitigating evidence.

5. In this case, where the aggravating circumstances greatly outweigh the mitigating circumstances, defendant fails to show the attorney's representation prejudiced him, even though the defendant's attorney offered no mitigating evidence at sentencing.

STATE V. TEARNEY, NO. 120340, AFFIRMED.

1. K.S.A. 2017 Supp. 22-3716(c)(9)(B) permits a district court to revoke a defendant's probation without having imposed a graduated sanction if probation was originally granted as the result of a dispositional departure. This dispositional departure exception, enacted on July 1, 2017, applies to probation violations which occur after July 1, 2013, even when those violations occurred before the dispositional departure exception took effect.

STATE V. GIBSON, NO. 120657, SENTENCE VACATED AND REMANDED WITH DIRECTIONS.

Analysis: Relying on State v. Martin, 279 Kan. 623 (2005) and State v. Favela, 259 Kan. 215 (1996), the Court of Appeals clarified the counterpart rule for finding aggravating and mitigating factors to depart.  In short, the rule states of something is directly listed in one category, the opposite thing - when omitted from the opposite list - is not a valid departure factor.

1. Kansas uses sentencing guidelines to help make the sentences given throughout the state consistent. The sentencing court must impose the presumptive sentence unless the judge finds substantial and compelling reasons to impose a departure sentence.

2. A statute, K.S.A. 2018 Supp. 21-6815, provides lists of mitigating and aggravating circumstances the sentencing court may consider in deciding whether to depart. Mitigating factors support downward departures; aggravating factors support upward departures. Although each list is nonexclusive, if something is listed as a factor on one of the two lists, the absence of that factor on the counterpart list means that it may not be the basis for a departure in that departure direction.

3. Because less-than-typical harm is in the list of mitigating factors but greater-than typical harm is not included in the list of aggravating factors, greater-than-typical harm may not be the basis for an upward-departure sentence.

KANSAS SUPREME COURT

STATE V. CHAVEZ-MAJORS, NO. 115286, AFFIRMED IN PART, REMANDED IN PART.

Analysis: This case was remanded to the district court for a suppression hearing to consider whether exigent circumstances supported the warrantless blood draw under the new case, Mitchell v. Wisconsin, 588 U.S. ___, 139 S.Ct. 2525, 204 L.Ed.2d 1040 (2019).  The Mitchell Court held "When police have probable cause to believe a person has committed a drunk-driving offense and the driver's unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver's BAC without offending the Fourth Amendment."

1. Unsafe driving and the odor of alcohol can each suggest a person was driving while legally impaired and contribute to a finding of probable cause.

2. Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) established a three-prong test for fitting a warrantless blood draw into the probable cause plus exigent circumstances exception to the warrant requirement: (1) there must be exigent circumstances that justify the taking of the blood sample; (2) there must be probable cause to believe the defendant has been driving while legally impaired; and (3) the procedure used to extract blood must be reasonable.

3. The natural dissipation of alcohol in the blood does not establish exigency per se.