source: Caselaw Access Project

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Steven Wade EDWARDS, Appellant.
    No. 117,305
    Supreme Court of Kansas.
    Opinion filed May 10, 2019.
    Jennifer C. Roth, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
    Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
   The opinion of the court was delivered by Stegall, J.:

Steven Wade Edwards pled guilty to two counts of felony murder, one count of aggravated burglary, and one count of aggravated robbery. Edwards subsequently moved to withdraw his plea. The district court denied Edwards' motion and sentenced him to two concurrent life sentences for the killings and a total of 141 additional months' incarceration for the lesser crimes. The court also ordered a lifetime period of postrelease supervision and waived both the Board of Indigents' Defense Services (BIDS) attorney fees and BIDS administrative fee. We affirm the district court's denial of Edwards' motion to withdraw plea, but we vacate the lifetime postrelease supervision portion of his sentence and remand with instructions to impose lifetime parole and to correct the clerical error in the journal entry regarding the BIDS administrative fee.

FACTUAL AND PROCEDURAL BACKGROUND

Steven Edwards was charged with two counts of capital murder, aggravated burglary, aggravated robbery, burglary, felony theft, and criminal possession of a firearm for his role in the October 16, 2014, killing of Martha Lopez Moreno and Godofredo Moreno-Lopez. The district court found Edwards indigent at his first appearance and appointed two experienced public defenders as counsel.

Several months after being charged, Edwards filed a pro se motion asking the court to appoint new counsel. Edwards gave four reasons in support of his motion: (1) Edwards' attorneys neglected to share discovery with him; (2) Edwards and his counsel had "yet to agree upon anything"; (3) counsel told him numerous times he would be unsuccessful at trial; and (4) counsel brought Edwards' mother to jail to persuade him to take a plea deal.

The district court subsequently held a hearing on Edwards' motion for new counsel. Edwards informed the court he was not comfortable with his counsel based on their discussions with him about taking a plea, their predictions of a trial outcome, and the lack of discovery provided to him while in jail. Edwards believed counsel was only interested in taking a plea deal rather taking the case to trial-despite Edwards telling counsel he did not want to plead.

Defense counsel provided a compelling explanation for their management of Edwards' case. First, counsel explained they did review discovery with Edwards but did not comply with Edwards' requests to keep copies of discovery in his cell. A large portion of discovery contained witness testimony of "extremely incriminating statements" made by Edwards. Counsel believed it was in Edwards' best interest not to have a copy of those statements while in jail.

Next, counsel denied allegations of pressuring Edwards to plead. Counsel informed the court that, while they did have discussions with Edwards about the possibility of entering into plea negotiations, Edwards' mother had no part in this. The mother's visit was an effort to help Edwards see the larger picture of his case. Counsel also informed Edwards "over and over" that Edwards had the power to decide "whether or not to have a preliminary hearing, whether or not to go to trial," and "whether or not to testify at that trial."

The court ultimately denied Edwards' motion. The court found no reason to dismiss Edwards' counsel and expressed concern that, if other counsel was appointed, such counsel would not be certified to try a capital murder case as were Edwards' current attorneys. The court also found that any attorney would have handled the issues raised by Edwards in a similar manner and, above all, would have the same ethical obligation to communicate their assessment of the strength of the case and offers by the State.

Edwards returned to court about seven months later to enter a guilty plea. As a result of plea negotiations, the State amended its charges in return for Edwards' plea of guilty to two counts of felony murder, one count of aggravated burglary, and one count of aggravated robbery.

The court reviewed the plea agreement with Edwards. Edwards confirmed he fully understood the proceedings and that there was no reason for the court to reject his guilty pleas. The court also asked Edwards whether he was "[o]n the whole" satisfied with the services provided by his attorneys. Edwards answered by stating "[n]ot really, but all right." This response led the court to inquire whether Edwards' dissatisfaction with his attorneys adversely affected his ability or desire to enter his plea. At this time, a short recess commenced to allow Edwards to speak with his attorneys. After Edwards spoke with his attorneys, the court again asked Edwards whether the pleas being offered were voluntary despite any issues he may have had with his attorneys. Edwards continued to assure the court he was entering the pleas voluntarily and that he believed pleading guilty was in his best interest.

About two weeks later, Edwards sent a letter to the district court followed by a pro se motion to withdraw his pleas. Edwards argued he signed the pleas under duress, suggesting his pleas were "the result of manipulation and lies orchestrated by his attorney." Edwards also stated his counsel could not effectively represent him because Edwards engaged in unlawful sexual encounters with one of his defense attorneys.

The court appointed new counsel for Edwards. Edwards' new lawyer moved to set aside Edwards' pleas, arguing the existence of good cause. Edwards contended his previous counsel was compromised by Edwards' sexual relationship with one of the attorneys; that the pleas were a product of undue influence; that there was no real bargain to his pleas; and that there was no preliminary hearing or factual basis given at the plea hearing.

The court conducted a hearing on the motion to withdraw Edwards' pleas, where Edwards and his former attorneys testified. Edwards testified that even though the State may seek the death penalty, he still wanted to withdraw his pleas and go to trial. Edwards' testimony mirrored the arguments set forth in his motion to withdraw his pleas, focusing mainly on the pressure brought by his attorneys to take the pleas. Edwards felt his attorneys failed to put forth any effort in defending him and were only interested in talking about Edwards pleading guilty. Edwards again mentioned counsel bringing his mother into jail to persuade him to take a plea bargain, the lack of pretrial motions filed on his behalf, and the existence of a sexual relationship between him and one of his lawyers. Finally, Edwards testified the following conversation took place during his plea hearing when the court provided a brief recess:

"I told [him] that I didn't want to take the plea bargain, and I was like, Can you get a continuance? And he was like, You need to take this plea bargain. He was like, The victims have family here. I don't think they'll let you take it afterwards. And then he asked Judge Goering if we could go back there and talk."

Both of Edwards' original attorneys testified that Edwards' allegations about sexual misconduct were completely unfounded, and, at times, Edwards seemed uninterested in visiting with his attorneys about his case. The attorneys stated their primary goal was to save Edwards from the death penalty. In an effort to do so, they collected a large amount of information for mitigation during the penalty phase of trial. But discovery produced significant incriminating evidence against Edwards and no exculpatory evidence. For this reason, the attorneys felt it was appropriate to discuss the possibility of entering into plea negotiations with the State.

The lack of exculpatory evidence caused counsel to focus on mitigation in order to persuade the State to take the death penalty off the table. Edwards' mother played a crucial role in providing information counsel could use in mitigation. Edwards' mother, however, did not take part in discussing plea deals with Edwards. Edwards' mother did not visit Edwards to coerce him into taking a plea deal as alleged because, at the time, there was no plea offered. Edwards' mother visited early on in the litigation process before any plea negotiations had taken place.

After hearing arguments and reviewing the evidence, the court conducted a "good cause" analysis under the three factors set forth in State v. Edgar , 281 Kan. 30, Syl. ¶ 2, 127 P.3d 986 (2006) (holding that the trial court "should evaluate whether: [1] the defendant was represented by competent counsel, [2] the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and [3] the plea was fairly and understandingly made").

First, the court held Edwards failed to present any evidence of attorney incompetence and found overwhelming evidence supporting the competency of Edwards' attorneys. Under the second Edgar factor, the court held Edwards was not misled, coerced, mistreated, or unfairly taken advantage of. The court found that Edwards had plenty of opportunity to tell the court he felt pressured to take the plea. There was no evidence in the record that Edwards did not understand what his sentencing range was, what his rights were, or that he had the right to trial. Nothing suggested Edwards was mistreated in any way or that anyone took unfair advantage of him when negotiating his plea. Moreover, when Edwards expressed dissatisfaction with his attorneys, the court specifically ensured his dissatisfaction did not affect his decision to plead. Thus, the court held Edwards failed to present evidence fulfilling the second Edgar factor. Finally, the court evaluated Edwards' claim of sexual misconduct. The court did not find the allegations of sexual misconduct credible and, as a result, Edwards was not entitled to relief.

After denying Edwards' motion to withdraw his guilty plea, the court proceeded to sentence Edwards. Edwards appeals directly to this court pursuant to K.S.A. 2018 Supp. 22-3601(b)(3).

ANALYSIS

Edwards makes three claims on appeal: (1) the district court erred in denying his motion to withdraw his plea; (2) the district court had no authority to order lifetime postrelease supervision; and (3) the journal entry must be corrected to show that the district court waived the BIDS administrative fee. The State concedes the final two claims and we address them briefly first.

From the bench, the district court ordered lifetime postrelease supervision for Edwards' primary offense of first-degree felony murder. But this was error. State v. Summers , 293 Kan. 819, Syl. ¶ 6, 272 P.3d 1 (2012) (stating that "[a] sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid, indeterminate life sentence"). Instead of lifetime postrelease supervision, Edwards was subject to lifetime parole. State v. Ross , 295 Kan. 1126, 1134, 289 P.3d 76 (2012) (stating that because the defendant "received an off-grid life sentence for felony murder, his prison term should be followed by lifetime parole" instead of lifetime postrelease supervision); see State v. Potts , 304 Kan. 687, 709, 374 P.3d 639 (2016) ("the appropriate remedy is to vacate the lifetime postrelease supervision period that the district court imposed and remand the case for resentencing with instructions that the district court impose lifetime parole for the felony-murder"). As such, the lifetime postrelease supervision ordered from the bench is vacated and this case is remanded for the imposition of lifetime parole.

At Edwards' sentencing, the district court also stated that "[g]iven the sentence imposed in this case, it's pointless to assess BIDS fees, so I'll waive the BIDS fees, as well as the administrative fee." The journal entry, however, reflects that a $ 100 BIDS administration fee was assessed. During sentencing, the judge's oral pronouncement is controlling, not the journal entry. Potts , 304 Kan. at 707-08, 374 P.3d 639. Thus, any journal entry variance from a judge's oral pronouncement during sentencing is a clerical error that may be corrected at any time. State v. Mason , 294 Kan. 675, 677, 279 P.3d 707 (2012) ("The journal entry of sentencing can be corrected by a nunc pro tunc order so that it reflects the actual sentence pronounced from the bench, which was a legal sentence."); K.S.A. 2018 Supp. 22-3504(2) ("Clerical mistakes in judgments, orders, or other parts of the record ... may be corrected by the court at any time...."). The district court is therefore ordered to correct the journal entry to properly reflect the waiver of BIDS fees.

Turning now to the contested portion of this appeal, we are asked to review the district court's denial of Edwards' motion to withdraw his guilty plea. A district court may allow a defendant to withdraw a guilty or nolo contendere plea for good cause any time before sentencing. K.S.A. 2018 Supp. 22-3210(d)(1). We review such decisions for abuse of discretion.

State v. DeAnda , 307 Kan. 500, 503, 411 P.3d 330 (2018) ; State v. Schaal , 305 Kan. 445, 449, 383 P.3d 1284 (2016). In determining whether the defendant has shown good cause, the court should consider three factors: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. Edgar , 281 Kan. at 36, 127 P.3d 986. These factors establish " 'viable benchmarks' " for the district court when exercising its discretion, but the court should not ignore other facts that might exist in a particular case. State v. Schaefer , 305 Kan. 581, 588, 385 P.3d 918 (2016). To the extent the lower court's exercise of discretion is informed by findings of fact, a reviewing appellate court will not reweigh evidence or reassess witness credibility. DeAnda , 307 Kan. at 503, 411 P.3d 330.

On appeal, Edwards relies exclusively on the second Edgar factor by claiming he was coerced into taking his plea. Specifically, Edwards argues that (1) his attorneys themselves, as well as through his mother, pressured him into taking the plea deal; and (2) his attorneys did not try to defend Edwards in any way other than through plea negotiations.

Edwards fails to present any additional evidence not considered by the district court in denying his motion. Instead, Edwards asks us to reweigh the same evidence presented to the district court and come to a different conclusion. But the district court already weighed the evidence and credibility of testimony given by Edwards and his former attorneys. The court found that the evidence weighed in favor of Edwards' plea being voluntary. The court found Edwards had not been misled, coerced, mistreated, or unfairly taken advantage of. And Edwards fails to present any evidence that the district court's view could not be adopted by a reasonable person; that its decision was based on an error of law; or that its decision was based on an error of fact.

The only new argument presented by Edwards is his objection to the following comments made by the court during its ruling:

"So it's not that I don't have significant discretion to set aside a guilty plea. I understand that I do. It's that I can't just set aside a guilty plea because Mr. Edwards has changed his mind. There has to be something that fits in these Edgar factors for me to say, Okay, well, we're withdrawing this plea. Especially in light of the fact that this was a case that was-there was a codefendant, the State made decisions based on whether to offer the codefendant pleas, made decisions on how the disposition of that case should be resolved. I don't know that any of that would prevent me from allowing Mr. Edwards to withdraw his guilty plea if the Edgar factors were present, but it does suggest that if the Edgar factors are not present, I shouldn't be free in the exercise of discretion simply because it's a no-harm/no-foul kind of thing. What difference does it make? He gets his trial. If he loses and he gets life without the possibility of parole, well, that's what he's asked for. Well, the harm is that these cases were disposed of in tandem.
"And so I do think in the absence of some evidence to hang on the Edgar factors, there is an element of abuse of judicial discretion for me to just simply say, Okay, it's presentencing, the standard is low. He gets what he wants, and we move on down the road. So for those reasons the motion will be denied."

In response, Edwards argues:

"[T]he law on plea withdrawals does not have a 'the State disposed of cases in tandem' factor. The State admitted this was not the standard, but argued it nonetheless. All three Edgar factors deal specifically with the defendant in that defendant's case. They do not deal with how the State handles plea negotiations. Furthermore, if Mr. Edwards' plea was set aside, he would be facing much worse consequences than his co-defendant ever was (as a juvenile, he was not eligible for the death penalty)."

Edwards is correct that the State's motivation for offering any particular plea bargain is not a relevant consideration in the context of the Edgar factors. But the district court expressly confined itself to the Edgar factors when deciding Edwards' motion. The court's discussion of possible prejudice to the State was discussed only after the court found the Edgar factors were not present, and only to say that in the absence of the Edgar factors, the court was not "free in the exercise of discretion simply because it's a no-harm/no-foul kind of thing." We find no error in this statement.

Edwards has failed to demonstrate any abuse of discretion. The district court's decision to deny Edwards' motion to withdraw his guilty plea is affirmed.

Affirmed in part, vacated in part, and remanded with instructions.


author: Per Curiam:

text:
    In the MATTER OF Kevin T. CURE, Respondent.
    No. 120,518
    Supreme Court of Kansas.
    Opinion filed May 10, 2019
    Matthew J. Vogelsberg, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was with him on the formal complaint for the petitioner.
    Stephen B. Angermayer, of Fern & Angermayer, L.L.C., of Pittsburg, argued the cause, and Kevin T. Cure, respondent, argued the cause pro se.
    ORIGINAL PROCEEDING IN DISCIPLINE
   Per Curiam:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Kevin T. Cure, of Joplin, Missouri, an attorney admitted to the practice of law in Kansas in 1991.

On July 31, 2018, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent did not file an answer; he filed a proposed probation plan on September 7, 2018. A joint stipulation signed by respondent and the office of the Disciplinary Administrator was filed September 18, 2018. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on September 21, 2018, where the respondent was personally present and represented by counsel. The hearing panel determined that respondent violated KRPC 8.4(b) (2019 Kan. S. Ct. R. 387) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer); 8.4(d) (misconduct prejudicial to the administration of justice); 8.4(g) (misconduct that adversely reflects on the lawyer's fitness to practice law); and Supreme Court Rule 203(c)(1) (2019 Kan. S. Ct. R. 240) (failure to report felony charge).

Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:

"Findings of Fact
....
"9. The Missouri Supreme Court admitted the respondent to the practice of law in the State of Missouri in October, 1990. The Kansas Supreme Court admitted the respondent to the practice of law in the State of Kansas in April, 1991.
"10. In 2014, the respondent was arrested for driving while intoxicated. On September 18, 2014, the respondent entered a plea of guilty, the court suspended the imposition of the sentence, and the court placed the respondent on probation.
"11. In 2016, the respondent served as the city attorney for Galena, Kansas.
"12. On March 11, 2016, the respondent was scheduled to appear in municipal court as the municipal prosecutor. The respondent drove to the courthouse while intoxicated. The municipal court judge, a defense attorney, the mayor, and the police chief all witnessed the respondent's demeanor and concluded he was intoxicated.
"13. After the mayor and the police chief spoke with the respondent, they confirmed that he was impaired. The respondent did not enter the courtroom. Because of the respondent's impairment, he did not appear in court on behalf of the city that day. The mayor drove the respondent back to his home.
"14. The judge and a defense attorney filed disciplinary complaints against respondent for coming to the courthouse intoxicated and for being unable to represent the city in court as scheduled that day.
"15. On March 29, 2016, the respondent was arrested in Joplin, Missouri, for driving while intoxicated. At the time of his arrest, the respondent remained on probation for the 2014 driving while intoxicated conviction.
"16. Following the respondent's March 29, 2016, arrest, the respondent resigned as the Galena city attorney.
"17. On March 30, 2016, with the assistance of KALAP, the respondent entered treatment at Valley Hope.
"18. In the respondent's written response to the complaints filed by the judge and a defense attorney, the respondent admitted to being intoxicated when he arrived at Municipal Court on March 11, 2016. The respondent also acknowledged his March 29, 2016, arrest for driving while intoxicated.
"19. On July 27, 2016, the respondent was arrested in Joplin, Missouri, for driving while intoxicated and driving with a revoked or suspended driver's license. Again, the respondent remained under court supervision for the 2014 driving while intoxicated case at the time of this arrest. Additionally, the respondent was on bond for the March, 2016, arrest.
"20. The respondent was scheduled to appear before Cherokee County District Magistrate Judge Samuel J. Marsh, on behalf of 10 clients on July 28, 2016, for a docket involving juvenile offender and child-in-need-of-care cases. Because the respondent remained incarcerated from his arrest the previous night, the respondent did not appear before Judge Marsh on behalf of his clients.
"21. On August 1, 2016, Judge Marsh forwarded a complaint against the respondent for his failure to appear on behalf of his 10 clients on July 28, 2016. In his letter, Judge Marsh noted that the respondent failed to contact the court to explain the reason for his absence. Judge Marsh, however, was aware of the respondent's July 27, 2016, arrest for driving while intoxicated and assumed that respondent's incarceration was the reason for his failure to appear in court.
"22. On August 11, 2016, the respondent was convicted of driving while intoxicated based on the March 29, 2016, arrest in Joplin, Missouri. The court sentenced the respondent to 30 days in jail, suspended the execution of the sentence, and placed the respondent on probation. As part of the probation order, the court required the respondent to refrain from violating the law.
"23. On September 7, 2016, the respondent entered treatment with Bradford Health Services.
"24. On September 21, 2017, the respondent was arrested for driving while intoxicated in Jasper County, Missouri. Based on respondent's prior history, he was charged as a persistent offender, a class E felony. A persistent offender is defined under Missouri law as a person who has been found guilty of 'two or more intoxication-related offenses committed on separate occasions.' Mo. Rev. State. § 577.001(18)(a). At the time of the respondent's September, 2017, arrest, he was on probation for the conviction stemming from the March, 2016, arrest. Also, the respondent was on bond for the July, 2016, arrest.
"25. Rule 203(a)(1) requires Kansas attorneys to report felony charges to the disciplinary administrator within 14 days. The respondent failed to report the felony charge within 14 days as required.
"26. On October 11, 2017, the disciplinary administrator became aware of the respondent's felony charge. On November 7, 2017, the respondent admitted to driving while intoxicated on September 21, 2017.
"27. On February 21, 2018, the respondent was convicted of driving while intoxicated based on the July 27, 2016, arrest. The court sentenced the respondent to 12 months in jail, suspended the execution of the sentence, and placed the respondent on probation. As part of the probation, the court ordered the respondent to successfully complete the court's DWI program.
"28. On June 26, 2018, respondent was convicted of driving while intoxicated, persistent offender, a class E felony, based on the September 21, 2017, arrest in Jasper County, Missouri. The court sentenced to [sic ] the respondent to two years in prison, placed respondent on probation for five years, and ordered the respondent to participate in the court's DWI program. The respondent remains on probation for the felony conviction. As of September 13, 2018, the respondent was in compliance with the terms of probation.
"29. On July 3, 2018, the Missouri Supreme Court issued an order indefinitely suspending the respondent's license to practice law in Missouri. The respondent is not eligible to apply for reinstatement in Missouri for at least six months.
"30. On July 9, 2018, counsel for the respondent notified the disciplinary administrator of the respondent's felony conviction for driving while intoxicated, persistent offender, a class E felony, in Jasper County[,] Missouri. Based on the respondent's felony conviction, on July 13, 2018, the Kansas Supreme Court issued an order temporarily suspending the respondent's license to practice law in Kansas.
"31. On July 23, 2018, the respondent obtained a substance abuse evaluation. Subsequently, the respondent entered intensive outpatient treatment at the Ozark Center. As of September 12, 2018, the respondent had completed 29 of the 75 required hours. The respondent has been attending AA meetings.
"32. On August 29, 2018, the respondent entered into a voluntary monitoring agreement through KALAP. While evidence was presented that the respondent had been working with KALAP earlier, the only monitoring agreement offered into evidence was dated August 29, 2018.
"33. In preparation of the hearing on the formal complaint, the respondent requested that colleagues write letters to the hearing panel regarding their impressions of the respondent. At the request of the respondent, the letter writers sent their letters directly to the hearing panel.
"Conclusions of Law
"34. Based upon the respondent's stipulation to violating KRPC 8.4 as well as the above findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 8.4(b) (misconduct involving the commission of a criminal act), 8.4(d) (misconduct prejudicial to the administration of justice), 8.4(g) (misconduct that adversely reflects on the lawyer's fitness to practice law) and 203(c)(1) (failure to report felony charge), as detailed below.
" KRPC 8.4(b)
"35. 'It is professional misconduct for a lawyer to ... commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.' KRPC 8.4(b). The respondent has been convicted of driving while intoxicated in Missouri on four occasions. The respondent's last conviction was classified as a class E felony. The respondent's convictions adversely reflect on the respondent's fitness as a lawyer. Accordingly, the hearing panel concludes that the respondent violated KRPC 8.4(b).
" KRPC 8.4(d)
"36. 'It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice.' KRPC 8.4(d). The respondent engaged in conduct that was prejudicial to the administration of justice when he went to the municipal courthouse on March 11, 2016, while intoxicated and was unable to represent the city at the scheduled hearings. Additionally, the respondent engaged in conduct that was prejudicial to the administration of justice when he failed to appear in court as scheduled on July 28, 2016, in 10 juvenile offender and child-in-need-of-care cases. As such, the hearing panel concludes that the respondent violated KRPC 8.4(d).
" KRPC 8.4(g)
"37. 'It is professional misconduct for a lawyer to ... engage in any other conduct that adversely reflects on the lawyer's fitness to practice law.' KRPC 8.4(g). The respondent engaged in other conduct that adversely reflects on his fitness to practice when he drove after his license was revoked and when he violated the terms of probation and bond. Thus, the hearing panel concludes that the respondent violated KRPC 8.4(g).
" Rule 203(c)(1)
"38. Rule 203(c)(1) requires an attorney charged with a felony to notify the disciplinary administrator of the charge within 14 days. On September 21, 2017, the respondent was arrested and charged with a class E felony for driving while intoxicated, persistent offender. The respondent, however, failed to notify the disciplinary administrator of the charge as required by Rule 203(c)(1). Accordingly, the hearing panel concludes that the respondent violated Rule 203(c)(1).
"American Bar Association Standards for Imposing Lawyer Sanctions
"39. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors.
"40. Duty Violated . The respondent violated his duty to the legal profession to refrain from engaging in conduct that is prejudicial to the administration of justice and his duty to the public to maintain his personal integrity.
"41. Mental State . The respondent knowingly violated his duties.
"42. Injury . As a result of the respondent's misconduct, the respondent caused actual injury to the administration of justice.
"43. Aggravating and Mitigating Factors . Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:
a. A Pattern of Misconduct. The respondent engaged in a pattern of misconduct by repeatedly driving while intoxicated, violating the terms of probation, and violating the terms of bond.
b. Substantial Experience in the Practice of Law. The Missouri Supreme Court admitted the respondent to the practice of law in the State of Missouri in 1990. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1991. At the time the misconduct began, the respondent had been practicing law for approximately 24 years.
c. Illegal Conduct, Including that Involving the Use of Controlled Substances. The respondent engaged in illegal conduct by repeatedly driving while intoxicated. As a result, the respondent has been convicted of driving while intoxicated on four occasions. The respondent's fourth conviction was a felony conviction.
"44. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present:
a. Absence of a Prior Disciplinary Record. The respondent has not previously been disciplined.
b. Absence of a Dishonest or Selfish Motive. The respondent's misconduct does not appear to have been motivated by dishonesty or selfishness.
c. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The respondent suffers from alcoholism. It is clear that the respondent's alcoholism contributed to the misconduct.
d. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The respondent fully cooperated with the disciplinary process. Additionally, the respondent admitted the facts that gave rise to the violations.
e. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The respondent is an active and productive member of the bar of Southeast Kansas. The respondent also enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by several letters received by the hearing panel.
f. Imposition of Other Penalties or Sanctions. The respondent has experienced other sanctions for his conduct. The respondent was convicted of the crimes, served time in jail, paid fines, and remains on probation.
g. Remorse. At the hearing on this matter, the respondent expressed genuine remorse for having engaged in the misconduct.
"45. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
'5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice.
'7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.'
"Recommendation
"46. The disciplinary administrator recommended that the respondent's license be indefinitely suspended and that the date of the suspension be made retroactive to the date of the temporary suspension, July 13, 2018. The disciplinary administrator argued that if the hearing panel concluded that a definite suspension was appropriate, then the hearing panel should also recommend that the respondent undergo a reinstatement hearing under Rule 219 prior to reinstatement.
"47. The respondent recommended that the temporary suspension be lifted and that he be allowed to resume the practice of law, subject to the terms of the proposed plan of probation.
"48. Based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the respondent's license to practice law be suspended for a period of 18 months. The hearing panel further recommends that the date of suspension be made retroactive to the date of the temporary suspension, July 13, 2018. Finally, the hearing panel recommends that the respondent be required to undergo a reinstatement hearing under Rule 219 prior to the consideration of a petition for reinstatement. At the reinstatement hearing, the respondent should be required to present evidence that he successfully completed the court's DWI program and that he has fully complied with all the terms of the KALAP monitoring agreement.
"49. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator."

DISCUSSION

In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster , 292 Kan. 940, 945, 258 P.3d 375 (2011) ; see Supreme Court Rule 211(f) (2019 Kan. S. Ct. R. 257). Clear and convincing evidence is " 'evidence that causes the factfinder to believe that "the truth of the facts asserted is highly probable." ' " In re Lober , 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis , 286 Kan. 708, 725, 188 P.3d 1 [ (2008) ] ).

Respondent was given adequate notice of the formal complaint to which he did not file an answer; he entered into a joint stipulation with the office of the Disciplinary Administrator. Respondent was also given adequate notice of the hearing before the panel and the hearing before this court. He filed no exceptions to the hearing panel's final hearing report. With no exceptions before us, the panel's findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2019 Kan. S. Ct. R. 261). Furthermore, the facts before the hearing panel establish by clear and convincing evidence the charged misconduct in violation of KRPC 8.4(b) (2019 Kan. S. Ct. R. 387) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer); 8.4(d) (misconduct prejudicial to the administration of justice); 8.4(g) (misconduct that adversely reflects on the lawyer's fitness to practice law); and Supreme Court Rule 203(c)(1) (2019 Kan. S. Ct. R. 240) (failure to report felony charge). The evidence also supports the panel's conclusions of law. We therefore adopt the panel's findings and conclusions.

The only remaining issue before us is the appropriate discipline for respondent's violations. The hearing panel recommended that respondent be suspended from the practice of law for a period of 18 months, retroactive to July 13, 2018, the date respondent was temporarily suspended. The hearing panel also recommended that respondent be required to undergo a reinstatement hearing under Rule 219 (2019 Kan. S. Ct. R. 270). At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator recommended that the respondent be indefinitely suspended. The respondent requested a temporary suspension, that the suspension be suspended, and that he be allowed to practice under the terms of his proposed plan of probation.

It is clear to all on the court that respondent has made significant strides to address the ethical lapses in his life that led to the violations. Those violations, however, were serious in nature. Though every disciplinary case is unique and will turn on its specific facts, we are informed by our prior decisions addressing similar circumstances.

Although a felony DUI conviction is not a breach of professional duty to a client, it violates KRPC 8.4(b) because it is a violation of the attorney's "primary duty to the court and the bar, and it erodes the public confidence in the judicial system." In re Laskowski , 282 Kan. 710, 713-14, 147 P.3d 135 (2006). It is expected that the "trust and confidence placed on those that practice law also requires compliance with the law." In re Frahm , 291 Kan. 520, 527, 241 P.3d 1010 (2010). And when noncompliance with the law results in a felony DUI conviction, this court has imposed sanctions varying from indefinite suspension to a two-year suspension from practicing law. See, e.g., Laskowski , 282 Kan. at 713-14, 147 P.3d 135 (suspending attorney from the practice of law indefinitely after receiving a felony DUI); In re Johns , 291 Kan. 638, 644, 243 P.3d 1101 (2010) (suspending attorney for two years after receiving a felony DUI conviction).

The varying sanctions imposed by this court result from a careful consideration of mitigating and aggravating facts in each case. This court has imposed less serious sanctions where the respondent has shown accountability by self-reporting their criminal conviction to the office of the Disciplinary Administrator, entering into a monitoring agreement with the Kansas Lawyers Assistance Program, and attending AA meetings. Johns , 291 Kan. at 639, 243 P.3d 1101. And when respondents fail to show this accountability, this court has imposed more severe sanctions. See, e.g., Frahm , 291 Kan. at 521, 531, 241 P.3d 1010 (suspending attorney for three years after conviction of felony DUI and two counts of aggravated battery where respondent left the scene of an accident to avoid prosecution); In re O'Neill , 285 Kan. 474, 483-84, 172 P.3d 1179 (2007) (suspending attorney indefinitely for felony DUI conviction and attorney's failure to disclose five arrests in attorney's application for admission to the Kansas bar); Laskowski , 282 Kan. at 711, 714, 147 P.3d 135 (suspending attorney from the practice of law indefinitely after receiving a felony DUI when the evidence showed respondent continued to consume alcohol following his arrest).

In consideration of all the facts and circumstances, we adopt the recommendation of the panel. See In re Holmes , 307 Kan. 871, 901, 416 P.3d 143 (2018) (giving deference to the panel that heard the evidence before it when the severity of the sanction depended on the facts and circumstances of the case). A minority of the court would impose a lesser discipline.

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that Kevin T. Cure be and he is hereby disciplined by a term of 18 months suspension beginning on the date of his temporary suspension, July 13, 2018. Before reinstatement following his suspension, respondent must undergo a Rule 219 hearing. See Supreme Court Rule 219(a)(3) (2019 Kan. S. Ct. R. 270).

IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.

Luckert, J., and Beier, J., not participating.

Michael J. Malone, Senior Judge, assigned.

Kathleen Sloan, District Judge, assigned.

      REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 120,518 vice Justice Luckert under the authority vested in the Supreme Court by K.S.A. 20-2616.

      REPORTER'S NOTE: District Judge Sloan was appointed to hear case No. 120,518 vice Justice Beier under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution


text:
    STATE of Kansas, Appellee, v. Skyler Lee BROOK, Appellant.
    No. 115,657
    Supreme Court of Kansas.
    Opinion filed May 10, 2019.
    Peter Maharry, of Kansas Appellate Defender Office, was on the briefs for appellant.
    Brad M. Lippert, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
   The opinion of the court was delivered by Beier, J.:

Defendant Skyler Lee Brook appeals the district court's correction of his postrelease supervision term after his probation was revoked and he was ordered to serve his original sentence. He challenges the district court judge's statutory authority to change the term from two years to lifetime, and he argues the lifetime postrelease term constitutes cruel and unusual punishment.

We affirm the district judge's decision and our Court of Appeals' endorsement of it.

FACTUAL AND PROCEDURAL BACKGROUND

Brook pleaded no contest to sexual exploitation of a child as a result of interactions with C.B. between May 6 and May 20, 2013. Brook was 22 years old at the time. He was sentenced to 36 months in prison and 2 years of postrelease supervision. The district court judge suspended imposition of Brook's sentence and ordered Brook to serve 36 months' probation.

Brook committed another crime, which resulted in revocation of his probation and imposition of his original sentence in this case.

The Department of Corrections notified the court that Brook should have received a lifetime postrelease term because of his plea to a sexually violent crime. The district judge agreed that this portion of Brook's sentence was illegal and corrected the two-year postrelease term to lifetime.

Brook challenged the lifetime term before the Court of Appeals. The panel rejected his arguments, State v. Brook , No. 115,657, 2017 WL 1535138, at *6 (Kan. App. 2017) (unpublished opinion), and this court granted review.

DISCUSSION

Whether a sentence is illegal and may be corrected at any time is a question of law subject to unlimited review. See K.S.A. 2018 Supp. 22-3504(1) ; State v. Horton , 308 Kan. 757, 759, 423 P.3d 548 (2018). To the extent resolution of Brook's claims requires statutory interpretation, this court also is presented with a question of law subject to unlimited review. 308 Kan. at 759, 423 P.3d 548.

Statutory Arguments

Brook argues that his original two-year term of postrelease could not be corrected as an illegal sentence based on two different statutes.

The first statute is K.S.A. 2018 Supp. 22-3717(d)(3). That section states, "Persons serving a period of incarceration for a supervision violation shall not have the period of postrelease supervision modified until such person is released and returned to postrelease supervision." K.S.A. 2018 Supp. 22-3717(d)(3). Brook asserts that because he "violated his supervision resulting in the revocation of his probation," K.S.A. 2018 Supp. 22-3717(d)(3) should prohibit modification of his postrelease supervision term.

The Court of Appeals panel correctly analyzed and disposed of this argument. There is no support for the proposition that the imposition of an underlying prison term after a probation violation is equivalent to "incarceration for a supervision violation." The panel said:

" K.S.A. 2016 Supp. 22-3717 as a whole involves postrelease supervision. In K.S.A. 2016 Supp. 22-3717(d)(3) the words 'supervision violation' clearly refers to a violation of postrelease supervision and not a probation violation. The subject of K.S.A. 2016 Supp. 22-3717 is postrelease supervision and not probation. The statutory scheme for probation is set out in an entirely different statute. See K.S.A. 2016 Supp. 21-6604, K.S.A. 2016 Supp. 21-6607, and K.S.A. 2016 Supp. 21-6608 (establishing the sentencing scheme for probation); K.S.A. 2016 Supp. 22-3716 (establishing procedures for probation violations). The plain reading of K.S.A. 2016 Supp. 22-3717 shows that the legislature did not intend a probation violation to prevent modification of postrelease supervision." Brook , 2017 WL 1535138, at *2.

Moreover, the language of subsection (d)(3) itself indicates that the "supervision" referred to is postrelease supervision. The limitation to modifying a period of postrelease continues "until such person is released and returned to postrelease supervision." (Emphasis added.) K.S.A. 2018 Supp. 22-3717(d)(3).

Brook's second statutory argument is based on what he perceives to be conflicting subsections within K.S.A. 2013 Supp. 22-3717(d)(1). That statute provides in pertinent part:

"(d)(1) Persons sentenced for crimes, other than off-grid crimes, committed on or after July 1, 1993, or persons subject to subparagraph (G), will not be eligible for parole, but will be released to a mandatory period of postrelease supervision upon completion of the prison portion of their sentence as follows:
....
(B) Except as provided in subparagraphs (D) and (E), persons sentenced for nondrug severity levels 5 and 6 crimes, drug severity level 3 crimes committed on or after July 1, 1993, but prior to July 1, 2012, and drug severity level 4 crimes committed on or after July 1, 2012, must serve 24 months on postrelease supervision.
....
(D) Persons sentenced to a term of imprisonment that includes a sentence for a sexually violent crime as defined in K.S.A. 22-3717, and amendments thereto, a sexually motivated crime in which the offender has been ordered to register pursuant to subsection (d)(1)(D)(vii) of K.S.A. 22-3717, and amendments thereto, electronic solicitation, K.S.A. 21-3523, prior to its repeal, or K.S.A. 2013 Supp. 21-5509, and amendments thereto, or unlawful sexual relations, K.S.A. 21-3520, prior to its repeal, or K.S.A. 2013 Supp. 21-5512, and amendments thereto, shall serve the period of postrelease supervision as provided in subsections (d)(1)(A), (d)(1)(B) or (d)(1)(C) plus the amount of good time and program credit earned and retained pursuant to K.S.A. 21-4722, prior to its repeal, or K.S.A. 2013 Supp. 21-6821, and amendments thereto, on postrelease supervision.
....
(G) Except as provided in subsection (u), persons convicted of a sexually violent crime committed on or after July 1, 2006, and who are released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life."

Brook argues that his original postrelease term was legal under subparagraphs (d)(1)(B) and (D). The Court of Appeals panel disagreed with this argument, relying on State v. Herrmann , 53 Kan. App. 2d 147, 384 P.3d 1019 (2016), rev. denied 306 Kan. 1324 (2017). In Herrmann , another Court of Appeals panel had thoroughly analyzed the issue Brook raised:

"[Defendant Jon T.] Herrmann claims the district court erred in granting the State's motion to correct an illegal sentence because his original sentence of 24 months' postrelease supervision was legal and not subject to modification when the court granted the State's motion. The trial court does not have jurisdiction to modify a legal sentence once it is pronounced from the bench. State v. Hall , 298 Kan. 978, 983, 319 P.3d 506 (2014). The court does, however, have jurisdiction to modify an illegal sentence and can do so at any time. K.S.A. 22-3504(1)....
....
"Herrmann argues the sentence of lifetime postrelease supervision is illegal ... because it does not conform to subparagraph (D) of K.S.A. 2015 Supp. 22-3717(d)(1), which he asserts is the applicable statutory provision. Herrmann contends the post-2013 version of subparagraph (D) retroactively eliminates the statutory requirement that courts impose lifetime postrelease supervision for those convicted of sexually violent crimes. In response to Herrmann's argument, the State argues lifetime postrelease supervision readily conforms to the applicable statutory provision, which it asserts is subparagraph (G) of K.S.A. 2015 Supp. 22-3717(d)(1).... Given the dispute between the parties, we first must decide which statutory provision within K.S.A. 2015 Supp. 22-3717(d)(1) is applicable to Herrmann's case for purposes of imposing postrelease supervision before we can decide whether the lifetime postrelease supervision ordered conformed to that applicable statutory provision.
....
"Generally, the crime and penalty in existence at the time of the offense are controlling, except where the legislature has given retroactive effect to statutory changes made after the commission of the crime. State v. Van Cleave , 239 Kan. 117, 122, 716 P.2d 580 (1986). At the time of Herrmann's offense, K.S.A. 2011 Supp. 22-3717(d)(1)(G) required that persons who committed a sexually violent crime after July 1, 2006, be sentenced to lifetime postrelease supervision. Attempted aggravated indecent liberties with a child was defined as a sexually violent crime under K.S.A. 2011 Supp. 22-3717(d)(2)(C) and (d)(2)(K). Herrmann does not contest that under K.S.A. 2011 Supp. 22-3717(d)(1)(G), as it existed at the time of his crime, he was subject to lifetime postrelease supervision.
"Rather, Herrmann argues that the 2013 amendments to K.S.A. 22-3717(d)(1) changed the law regarding postrelease supervision as it applies to persons sentenced for sexually violent crimes and that those changes apply retroactively to his case. He contends that new language in subparagraph (D) expressly applies to persons convicted of sexually violent crimes and directs the court to impose a term of postrelease supervision based on the severity level of the offense. Herrmann notes that the new language in subparagraph (D) requires 24 months' postrelease supervision for severity level 6 offenders like him, plus any good-time or program credit earned and retained.
"Herrmann acknowledges that the 2013 amendments to subparagraph (D) directing a term postrelease supervision based on severity level of the sexually violent crime committed did not modify subparagraph (G), which requires lifetime postrelease supervision for persons convicted of sexually violent crimes after July 1, 2006. Nevertheless, Herrmann asserts this fact is not fatal to his claim that the current subparagraph (D) controls his term of postrelease supervision. In support of this assertion, Herrmann claims the 2013 amendments to subparagraph (D) effectively created an option for courts to choose between when imposing postrelease supervision for persons convicted of sexually violent crimes: subparagraph (D) provides a term of months depending on the severity level of the crime, plus any good-time or program credits accrued while in prison, while subparagraph (G) requires lifetime postrelease supervision. In light of these two options, Herrmann asserts the original 24-month term of postrelease supervision imposed was legal after the 2013 amendments became effective because it conformed to one of the two applicable statutory provision options.
....
"We find the plain language of the [2013 amended] statute clearly decides the issue presented. Subsection (d)(1) explains that persons sentenced for crimes committed after July 1, 1993, will not be eligible for parole; instead, they will be subject to mandatory postrelease supervision as provided in the subparagraphs that follow. Notably, however, this subsection (d)(1) expressly states that the mandatory postrelease supervision provided in the subparagraphs that follow do not apply to 'persons subject to subparagraph (G).' Subparagraph (G) provides that 'persons convicted of a sexually violent crime committed on or after July 1, 2006, and who are released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life.' Herrmann was convicted of attempted aggravated indecent liberties with a child, which is a sexually violent crime under subsection (d)(5)(C) and (d)(5)(M). His conviction occurred after July 1, 2006. Because Herrmann is subject to subparagraph (G), no other subparagraph following subsection (d)(1) applies to him-including subparagraph (D).
"As an alternative to the 'two option' argument above, Herrmann asserts K.S.A. 2015 Supp. 22-3717(d)(1) is ambiguous because the provisions of subparagraphs (D) and (G) directly conflict with each other on the proper term of postrelease supervision to impose: one provides for a term of months based on severity level of the sexually violent crime and the other requires a lifetime term. Herrmann argues that the rule of lenity should resolve the ambiguity in his favor by imposing the lesser of the two postrelease supervision terms. We disagree. The provisions in each subparagraph apply to a distinct class of persons. K.S.A. 22-3717 as a whole applies to all persons convicted of a crime after July 1, 1993. See L. 1992, ch. 239, sec. 270 ('Persons sentenced for crimes committed on or after July 1, 1993, will not be eligible for parole, but will be released to a mandatory period of postrelease supervision upon completion of the prison portion of their sentence.'). Subparagraph (G) was added to the statute in 2006 to create an explicit exception applicable only for 'persons convicted of a sexually violent crime committed on or after July 1, 2006.' See L. 2006, ch. 212, sec. 19 (also adding language to [d][1] excepting 'persons subject to subparagraph [G]'). Reading subparagraph (D) in pari materia, it falls under subsection (d)(1) and so applies to all persons but those expressly excluded: persons sentenced for off-grid crimes committed on or after July 1, 1993, and persons committing a sexually violent crime on or after July 1, 2006, as stated in subparagraph (G). Therefore, subparagraph (D) only applies to persons convicted of a sexually violent crime after July 1, 1993, but before July 1, 2006. Thus, there are no persons convicted of a sexually violent crime to whom both subparagraph (D) and subparagraph (G) apply. Construing the statute as a whole and giving effect to all of the statutes, as this court must, there is no conflict or ambiguity in amended subsection (d)(1).
"The legislative history of the 2013 amendments confirms that the new language in subparagraph (D) was not intended to create a conflict with subparagraph (G). Instead, the changes were actually meant to maintain the same term of postrelease supervision for certain offenders, including persons who committed a sexually violent offense between July 1, 1993, and June 30, 2006, despite changes to reduce postrelease supervision generally. Prior to 2013, subparagraphs (A)-(C) assigned either 36, 24, or 12 months' postrelease supervision, respectively, 'plus the amount of good time and program credit earned and retained.' See, e.g. , K.S.A. 2012 Supp. 22-3717(d)(1)(A)-(C). The 2013 amendments deleted the language pertaining to good-time and program credits from subparagraphs (A)-(C)-in effect, reducing the length of postrelease supervision sentences by not requiring those credits to be added to a person's postrelease term. But the legislature did not want to provide that same benefit for persons convicted of certain crimes, including sexually violent crimes. So, the legislature also amended subparagraph (D) to provide an exception for persons convicted of sexually violent crimes so that earned good-time and program credits continued to be added to their postrelease supervision period. L. 2013, ch. 133, sec. 13. In a nutshell, the postrelease supervision calculation for persons convicted of a sexually violent crime between July 1, 1993, and June 30, 2006, remained the same as it was prior to the 2013 amendments.
"The analysis above is a straightforward reading of K.S.A. 2015 Supp. 22-3717(d)(1) as a whole in which subparagraphs (D) and (G) are read in a workable harmony, without assuming the legislature intended to enact contradictory or meaningless provisions. See Keel , 302 Kan. at 574 [357 P.3d 251]. The plain language of subsection (d)(1) provides an exception for persons convicted of a sexually violent crime for an offense after July 1, 2006, in subparagraph (G). Herrmann committed his sexually violent offense after July 1, 2006; therefore, he is subject only to subparagraph (G). Because subparagraph (D) does not apply to him, there is no need to determine whether the amended provision would apply retroactively to his case." Herrmann , 53 Kan. App. 2d at 149-54, 384 P.3d 1019.

The Legislature confirmed the Herrmann panel's interpretation of the statute two years ago by amending subparagraph (d)(1)(D) to apply to "[p]ersons sentenced to a term of imprisonment that includes a sentence for a sexually violent crime as defined in K.S.A. 22-3717, and amendments thereto, committed on or after July 1, 1993, but prior to July 1, 2006. " (Emphasis added.) See K.S.A. 2018 Supp. 2018 22-3717(d)(1)(D).

Brook's original two-year term of postrelease was imposed after his probation was revoked. See State v. Sandoval , 308 Kan. 960, Syl., 425 P.3d 365 (2018) (upon probation revocation, judge may impose original sentence or sentence anew; when original sentence illegal, imposed upon revocation, illegality persists). It was illegal because it did not conform to applicable statutory requirements; it was therefore subject to later correction under K.S.A. 22-3504(1). 308 Kan. at 965, 425 P.3d 365 ; State v. Roth , 308 Kan. 970, 971-72, 424 P.3d 529 (2018).

Constitutional Argument

On petition for review, Brook also mounts a federal constitutional challenge to his lifetime postrelease term, arguing that it qualifies categorically as cruel and unusual punishment. He acknowledges that this court rejected this argument in State v. Williams , 298 Kan. 1075, 319 P.3d 528 (2014).

In Williams , this court held that "[l]ifetime postrelease supervision for a first-time offender over age 18 convicted of sexual exploitation of a child for crimes involving possession of pornographic images of children under age 18 is not categorically disproportionate under the Eighth Amendment to the United States Constitution." 298 Kan. 1075, Syl. ¶ 8, 319 P.3d 528.

Brook urges us to jettison Williams because of this court's more recent decision in State v. Dull , 302 Kan. 32, 351 P.3d 641 (2015).

In Dull , we held that "[m]andatory lifetime postrelease supervision is categorically unconstitutional under Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L.Ed.2d 825 (2010), when imposed on a juvenile who committed and was later convicted of aggravated indecent liberties with a child." Dull , 302 Kan. 32, Syl. ¶ 8, 351 P.3d 641.

As the Court of Appeals panel in this case noted, the Dull opinion explicitly distinguished juvenile offenders, such as the defendant in Dull , from adult offenders, such as Brook:

"While we have found mandatory lifetime postrelease supervision constitutional for adults, the same factors that result in a diminished culpability for juveniles, i.e. , recklessness, immaturity, irresponsibility, impetuousness, and ill-considered decision making, along with their lower risks of recidivism, all diminish the penological goals of lifetime supervision for juvenile sex offenders." 302 Kan. 32, Syl. ¶ 7, 351 P.3d 641.

We still hold this distinction to be valid and dispositive. Brook's categorical challenge to his lifetime postrelease term fails.

CONCLUSION

The district court judge did not err in correcting Brook's two-year postrelease term to lifetime. We affirm his judgment and the decision of the Court of Appeals upholding it.


text:
    Jeffrey D. KUDLACIK, Appellant, v. JOHNNY'S SHAWNEE, INC., and Barley's Ltd., Appellees.
    No. 115,869
    Supreme Court of Kansas.
    Opinion filed May 10, 2019
    David R. Morantz, of Shamberg, Johnson & Bergman, Chartered, of Kansas City, Missouri, argued the cause, and Lynn R. Johnson and Paige L. McCreary, of the same firm, and Vito C. Barbieri, of Barbieri & Associates, L.C., of Shawnee, were with him on the briefs for appellant.
    John J. Bursch, of Bursch Law P.L.L.C., of Caledonia, Michigan, argued the cause, and John J. Fogarty and Theresa Shean Hall, of Manz Swanson Hall Fogarty & Gellis, PC, of Kansas City, Missouri, were on the briefs for appellee Johnny's Shawnee, Inc.
    Todd N. Thompson, of Thompson Warner, P.A., of Lawrence, argued the cause, and Sarah E. Warner of the same firm, and Erik Henry Nelson and Bradley R. Hansmann, of Brown & James, P.C., of Kansas City, Missouri, were with him on the briefs for appellee Barley's Ltd.
    Richard W. James, of DeVaughn James Injury Lawyers, of Wichita, and Blake A. Shuart, of Hutton & Hutton Law Firm, L.L.C., of Wichita, were on the brief for amicus curiae Mothers Against Drunk Driving.
    Will B. Wohlford, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita, was on the brief for amicus curiae Kansas Trial Lawyers Association.
    J. Philip Davidson and Paul J. Skolaut, of Hinkle Law Firm L.L.C., of Wichita, were on the brief for amicus curiae Kansas Restaurant and Hospitality Association.
    Lyndon W. Vix and Brian E. Vanorsby, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, were on the brief for amicus curiae Kansas Association of Defense Counsel.
    Jason R. Lane and Joseph Uhlman, legal intern, of Newton, were on the brief for amicus curiae Kansas Emergency Medical Services Association.
   The opinion of the court was delivered by Biles, J.:

Jeffrey D. Kudlacik suffered serious injuries in a two-vehicle collision with a drunk driver. He asks us to reconsider longstanding Kansas caselaw insulating commercial drinking establishments from liability for torts committed by their intoxicated patrons. We have done so and today reaffirm the common law under the principles of stare decisis. We hold the district court properly dismissed his lawsuit.

FACTUAL AND PROCEDURAL BACKGROUND

Michael Smith ran a red light at high speed through a Johnson County intersection and collided with Kudlacik's vehicle. Smith's blood alcohol content was 0.179. Kudlacik suffered extensive injuries.

Before the collision, Smith consumed alcoholic beverages at Johnny's Shawnee and Barley's Bar. Kudlacik sued Johnny's and Barley's for his injuries, alleging the bartenders continued to serve Smith even after they knew or should have known he was incapacitated by alcohol and a threat to himself and others. Kudlacik claimed the bartenders were either negligent or aided and abetted Smith's tortious conduct.

Johnny's and Barley's moved to dismiss the suit for failure to state a claim upon which relief can be granted under K.S.A. 2018 Supp. 60-212(b)(6). The district court agreed by quoting " 'Kansas does not have a third-party action against vendors or dispensers of alcoholic beverages for harm done to the third party person by the person intoxicated from imbibing such beverages' " from Bland v. Scott , 279 Kan. 962, 973-94, 112 P.3d 941 (2005). Kudlacik appealed and the Court of Appeals summarily affirmed.

We granted Kudlacik's timely petition for review. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

STANDARD OF REVIEW

An appellate court reviews de novo whether a petition states a valid claim for relief. Steckline Communications, Inc. v. Journal Broadcast Group of KS, Inc. , 305 Kan. 761, 767, 388 P.3d 84 (2017).

"When a defendant uses K.S.A. 2015 Supp. 60-212(b)(6) to challenge the legal sufficiency of a claim, the court must decide the issue based only on the well-pled facts and allegations, which are generally drawn from the petition. Courts must resolve every factual dispute in the plaintiff's favor when determining whether the petition states any valid claim for relief. Dismissal is proper only when the allegations in the petition clearly demonstrate that the plaintiff does not have a claim. [Citation omitted.] Likewise, appellate courts reviewing a district court's decision to grant a motion to dismiss will assume as true the well-pled facts and any inferences reasonably drawn from them. If those facts and inferences state any claim upon which relief can be granted, dismissal is improper. [Citation omitted.]" 305 Kan. at 767-68, 388 P.3d 84.

NO CLAIM FOR NEGLIGENCE

In Kansas,

"At common law, and apart from statute, no redress exists against persons selling, giving or furnishing intoxicating liquor for resulting injuries or damages due to the acts of intoxicated persons, either on the theory that the dispensing of the liquor constituted a direct wrong or that it constituted actionable negligence. Since Kansas does not have a dram shop act, the common-law rule prevails in Kansas." Ling v. Jan's Liquors , 237 Kan. 629, Syl. ¶ 3, 703 P.2d 731 (1985).

Our court repeatedly followed this rule. See, e.g., Bland , 279 Kan. at 973-74, 112 P.3d 941 (holding no wrongful death action against university and fraternity for supplying alcohol to minor who killed plaintiff while driving drunk); Prime v. Beta Gamma Chapter of Pi Kappa Alpha , 273 Kan. 828, 837, 840, 47 P.3d 402 (2002) (holding no cause of action against college fraternity or its members for injuries to minor to whom members supplied alcohol); Mills v. City of Overland Park , 251 Kan. 434, 443, 837 P.2d 370 (1992) (holding no cause of action against vendor for minor patron's alcohol-related death); Fudge v. City of Kansas City , 239 Kan. 369, 375-76, 720 P.2d 1093 (1986) (holding no wrongful death action against commercial vendor that supplied liquor to drunken driver, and vendor's fault not to be compared with other tortfeasors'); Ling , 237 Kan. at 630, 703 P.2d 731 (no liability in personal injury action against out-of-state liquor store). Kudlacik asks us to revisit this precedent and consider the question anew.

"The doctrine of stare decisis maintains that once a point of law has been established by a court, it will generally be followed by the same court and all courts of lower rank in subsequent cases when the same legal issue is raised. A court of last resort will follow that rule of law unless clearly convinced it was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent. [Citation omitted.]" Miller v. Johnson , 295 Kan. 636, 653-54, 289 P.3d 1098 (2012).

Stare decisis " 'promote[s] system-wide stability and continuity by ensuring the survival of decisions that have been previously approved by a court.' " Crist v. Hunan Palace, Inc. , 277 Kan. 706, 715, 89 P.3d 573 (2004). Adhering to precedent is usually the wiser policy. Bergstrom v. Spears Manufacturing Co. , 289 Kan. 605, 613, 214 P.3d 676 (2009).

Kudlacik argues our common-law rule is outdated, creates an "inexplicable immunity" for alcohol vendors, and is bad public policy. These arguments have some merit but not enough to cause this court to upend the status quo. And even though we perceive some weakness with Ling 's initial rationale, we are not clearly convinced the decision itself was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come if we depart from it.

In Ling , the court applied the common-law rule to hold a pedestrian failed to state a claim against a commercial liquor vendor for damages she alleged resulted from the vendor negligently supplying alcohol to a minor. 237 Kan. at 641, 703 P.2d 731. The court declined to depart from the common-law rule because the "declaration of public policy is normally the function of the legislative branch of government." 237 Kan. at 640, 703 P.2d 731.

The Ling court reviewed dram shop liability's history in this state. It observed Kansas had statutes permitting civil damages for dram shop claims from territorial days until the late 1940s. But when the Legislature enacted comprehensive liquor regulation in 1949, it repealed the dram shop law. Since then, the Legislature criminalized liquor sales to minors and incapacitated persons-including those incapacitated by liquor consumption-and declined to adopt dram shop legislation proposed in 1984 and 1985. 237 Kan. at 637-39, 703 P.2d 731.

The court reasoned the Legislature would have "re-created a civil cause of action in favor of those injured as a result of a violation of the liquor laws" if it had "intended for there to be a civil cause of action." 237 Kan. at 640, 703 P.2d 731. Accordingly, the court held permitting violations of the criminal statutes to establish negligence per se "would subvert the apparent legislative intention." 237 Kan. at 639, 703 P.2d 731. It also reasoned,

"Whether Kansas should abandon the old common-law rule and align itself with the new trend of cases which impose civil liability upon vendors of alcoholic beverages for the torts of their inebriated patrons depends ultimately upon what best serves the societal interest and need. Clearly, this is a matter of public policy which the legislature is best equipped to handle." 237 Kan. at 640, 703 P.2d 731.

To further justify its deference to the Legislature, the court noted " '[t]he imposition of a common law duty of care would create a situation rife with uncertainty,' " including social hosts' potential liability-difficulties in recognizing intoxication and predicting patrons' conduct, apportioning liability among several vendors, and determining " '[t]he correct standard of care' " and whether the tavern owner's liability should include the patron's intentional torts. 237 Kan. at 641, 703 P.2d 731 (quoting Holmes v. Circo , 196 Neb. 496, 504-05, 244 N.W.2d 65 [1976] ). Later cases declined to overrule Ling and "continue[d] to hold that civil liability in this area is a public policy decision left to the Kansas Legislature." Bland , 279 Kan. at 971, 112 P.3d 941.

As mentioned, we perceive some flaws in Ling 's rationale. For one, we do not believe the predicted difficulties delineating common-law dram-shop liability's scope or standards of care remains a persuasive justification for deferring to the Legislature.

"It is said that the common law is susceptible of growth and adaptation to new circumstances and situations, and that the courts have power to declare and effectuate what is the present rule in respect of a given subject without regard to the old rule .... The common law is not immutable, but flexible, and upon its own principles adapts itself to varying conditions." Dimick v. Schiedt , 293 U.S. 474, 487, 55 S.Ct. 296, 79 L.Ed. 603 (1935).

See also Ling , 237 Kan. at 643, 703 P.2d 731 (Lockett, J., dissenting) ("The common law is judge-made and judge-applied. It is not to be followed blindly and can be changed when conditions and circumstances require if the prior law is unjust or has become bad public policy.").

And contrary to the Ling court's decision to commit the traditional common-law rule's continuing viability to the Legislature, we have said:

" 'The nature of the common law requires that each time a rule of law is applied, it be carefully scrutinized to make sure that the conditions and needs of the times has not so changed as to make further application of it the instrument of injustice. Whenever an old rule is found unsuited to present conditions or unsound, it should be set aside and a rule declared which is in harmony with those conditions and meets the demands of justice.' " Steele v. Latimer , 214 Kan. 329, 332-33, 521 P.2d 304 (1974) (quoting 15 Am. Jur. 2d, Common Law § 2, p. 797).

Another weakness in Ling comes in the proximate-cause-based rationale for the common-law rule, which has not kept pace with modern tort principles. Proximate cause is

"the cause that in a natural and continuous sequence, unbroken by any superseding cause, both produced the injury and was necessary for the injury. The injury must be the natural and probable consequence of the wrongful act. Individuals are not responsible for all possible consequences of their negligence, but only those consequences that are probable according to ordinary and usual experience. [Citations omitted.]" Hale v. Brown , 287 Kan. 320, 322, 197 P.3d 438 (2008).

Proximate cause is ordinarily a factual question to be resolved by the trier of fact. Cullip v. Domann , 266 Kan. 550, 556, 972 P.2d 776 (1999). But see Hale , 287 Kan. at 324, 197 P.3d 438 (noting when "all the evidence on which a party relies is undisputed and susceptible of only one inference, the question of proximate cause becomes a question of law").

" 'There are two components of proximate cause: causation in fact and legal causation. To establish causation in fact, a plaintiff must prove a cause-and-effect relationship between a defendant's conduct and the plaintiff's loss by presenting sufficient evidence from which a jury can conclude that more likely than not, but for defendant's conduct, the plaintiff's injuries would not have occurred. To prove legal causation, the plaintiff must show it was foreseeable that the defendant's conduct might create a risk of harm to the victim and that the result of that conduct and contributing causes was foreseeable.' [Citation omitted.]" Castleberry v. DeBrot , 308 Kan. 791, 802-03, 424 P.3d 495 (2018).

Under this modern view, intervening and superseding causes that cut off liability for earlier negligence claims are still recognized in extraordinary cases. Hale , 287 Kan. at 323, 197 P.3d 438. But in the ordinary case, by adopting comparative fault, "Kansas has moved beyond the concept of proximate cause in negligence" in favor of a system in which " ' "all or nothing" concepts are swept aside' " and "courts compare the percentages of fault of all alleged wrongdoers." Reynolds v. Kansas Dept. of Transportation , 273 Kan. 261, 268-69, 43 P.3d 799 (2002).

Indeed,

" 'Most state and federal courts that have considered these issues since 1960 have reevaluated and rejected as patently unsound the rule that a seller cannot be held liable for furnishing alcoholic beverages to an intoxicated or minor patron who injures a third person on the grounds that sale or service is causally remote from the subsequent injurious conduct of the patron. A substantial majority have decided that the furnishing of alcoholic beverages may be a proximate cause of such injuries ....' " Jackson v. Cadillac Cowboy, Inc. , 337 Ark. 24, 31, 986 S.W.2d 410 (1999).

See also Largo Corp. v. Crespin , 727 P.2d 1098, 1103 (Colo. 1986) (rejecting common-law rule's proximate cause justification because proximate cause is a factual question for the jury except in the clearest cases susceptible to only a single inference); Adamian v. Three Sons, Inc. , 353 Mass. 498, 501, 233 N.E.2d 18 (1968) ("Henceforth in this Commonwealth waste of human life due to drunken driving on the highways will not be left outside the scope of the foreseeable risk created by the sale of liquor to an already intoxicated individual.").

But despite these faults, we are not clearly convinced Ling was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from it. We remain unpersuaded that a duty of care runs from tavern owners to third-parties injured by their patrons after leaving the tavern owner's premises.

To be sure, courts in sister jurisdictions have dealt with this question in different ways. One view holds a commercial vendor of alcohol owes a duty of care because the intoxicated patron's negligent driving is a foreseeable consequence of the vendor's conduct. Crespin , 727 P.2d at 1102. Another considers statutes criminalizing vending liquor to minors and intoxicated persons sufficient to impose a duty of care. Ono v. Applegate , 62 Haw. 131, 137-38, 612 P.2d 533 (1980). The difficulty with these approaches stems from the general rule that "[t]here is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another." Restatement (Second) Torts § 315 (1965) ; see also Warr v. JMGM Group, LLC , 433 Md. 170, 189-90, 70 A.3d 347 (2013) (declining to recognize common-law liability for negligently supplying liquor to intoxicated tavern patron because, absent a special relationship between the tavern and injured party, tavern owed no duty of care to the injured party).

Typically in Kansas, there is no duty to control a third person's conduct to prevent that person from causing physical harm to another unless a special relationship exists between the actor and the third person or between the actor and the other. Nero v. Kansas State University , 253 Kan. 567, Syl. ¶ 2, 861 P.2d 768 (1993). Therefore, to trigger the tavern owner's duty to control the patron's conduct, the tavern owner must have a special relationship with either the patron or the injured third party. See Hesler v. Osawatomie State Hospital , 266 Kan. 616, 623-30, 971 P.2d 1169 (1999) (nursing staff at state hospital and hospital itself were not liable for damages sustained in car accident when involuntarily committed patient released on day pass steered vehicle into oncoming traffic, because no special relationship triggered duty to motorists); Nero v. Kansas State University , 253 Kan. 567, 580, 861 P.2d 768 (1993) (holding university-student relationship was not "special relationship" that imposed duty on university to protect assault victim from injury inflicted by fellow student); Restatement (Second) of Torts § 315.

Our caselaw hews closely to the special relationships enumerated in the Restatement, which do not include those at issue here. See D.W. v. Bliss , 279 Kan. at 738, 112 P.3d 232 ("We have, in all our special relationships/duty cases, followed the outlines of the Restatement, and to judicially create responsibility based on the marriage relationship would create a 'slippery slope' of unlimited possibilities for family liability that would have no practical stopping point."); Restatement (Second) of Torts §§ 316 - 20 ; accord Cannizzaro v. Marinyak , 312 Conn. 361, 367, 93 A.3d 584 (2014) (describing § 315 as supplying the parameters of a limited, public-policy exception to the general rule there is no duty to aid or protect another party).

Another problem emerges when trying to establish a duty of care through the statutes criminalizing certain liquor sales. In Shirley v. Glass , 297 Kan. 888, 897, 308 P.3d 1 (2013), the court held a violation of statutes criminalizing firearm sales to convicted felons may be used to establish a duty and a breach of that duty. It reasoned those statutes "fill in some of the elements of a negligent entrustment claim." 297 Kan. at 895, 308 P.3d 1. In particular, they could "establish that certain convicted felons are incompetent to possess firearms, and the violation of controls on how sales are to be carried out may establish the defendant's constructive knowledge of the purchaser's incompetence." 297 Kan. at 895, 308 P.3d 1 ; cf. Restatement (Second) of Torts § 286 (describing when court may adopt legislative enactment or administrative regulation as "the standard of conduct of a reasonable man").

Kudlacik similarly points to the criminal statutes to contend the liquor sales posed an unreasonable risk of harm and the criminal statutes favor dram shop liability. But he goes beyond using the statutes to fill in the elements of negligence. He asks us to recognize a duty of care based on the statutes alone running from defendants to himself to control their patron's conduct for his protection. See Pullen v. West , 278 Kan. 183, 194, 92 P.3d 584 (2004) (negligence per se requires proof defendant violated statute, that violation caused plaintiff's damages, and that Legislature intended individual right of action for injury arising out of violation); Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc. , 249 Kan. 348, 370, 819 P.2d 587 (1991) (violation of statute criminalizing failure to report suspected child abuse was not negligence per se because Legislature could have, but did not, specify statute intended to grant private right of action).

Since Ling our caselaw has reasoned the Legislature did not intend the statutes to support private causes of action, and the Legislature has acquiesced by its silence. Bland , 279 Kan. at 972, 112 P.3d 941 (reaffirming Ling 's holding that civil cause of action incorporating statutes criminalizing certain liquor sales would subvert legislative intent); see also State v. Quested , 302 Kan. 262, 279, 352 P.3d 553 (2015) (noting Legislature's long-term acquiescence in judicial interpretation of sentencing statute was strong indication that caselaw effected legislative intent). We are not clearly convinced Ling 's negligence per se determination was erroneous.

Likewise, we are not clearly convinced the common-law rule is rendered unsound by changing conditions and that more good than harm would come from departing from Ling . Kudlacik, defendants, and amici portray differing consequences from abrogating the common-law rule in conflicting lights. These range from decreasing drunk driving injuries on the positive end to commercial economic strains on the other-such as exposing vendors to uninsured liabilities.

Yet in the final analysis, the Legislature remains free to chart the public policy course that abrogates the common-law rule. And for many years, it has elected not to do so. See, e.g., Bland , 279 Kan. at 971, 112 P.3d 941 (noting "extremely narrow dram shop law" was considered by the 2004 Legislature but failed to pass); cf. Manley v. Hallbauer , 308 Kan. 723, 734, 423 P.3d 480 (2018) (refusing to recognize tort liability for rural landowners for natural conditions obscuring intersections based on statutes conferring road maintenance duties to government entities and Legislature's failure for more than 90 years to articulate policy other than that embodied in traditional common-law rule).

Kudlacik points out that since Ling , the Legislature has permitted licensed establishments to sell liquor by the drink, arguing this development alters its analysis. See L. 1987, ch. 182. But alcohol was available at private clubs and taverns as well as package liquor stores when Ling was decided. Drunk driving was then, as now, a serious problem. Ling , 237 Kan. at 638, 703 P.2d 731. So we decline to speculate on any correlation Kudlacik implies between liquor-by-the-drink's proliferation and the current extent of the drunk driving problem; or on what effect, if any, imposing vendor liability might have on combatting it. Moreover, our court has decided not to depart from Ling several times since liquor by the drink was enacted. See Bland , 279 Kan. at 969, 112 P.3d 941 ; Prime , 273 Kan. at 837, 47 P.3d 402.

Kudlacik argues our most recent decision, Bland , dealt only with social host liability and should not be viewed as a reaffirmation of Ling 's reasoning. But Bland unequivocally adhered to Ling with respect to all liquor vendor liability. See Bland , 279 Kan. at 972, 112 P.3d 941 ("[W]e ... continue to hold that the decision to impose liability, and under what circumstances, upon the suppliers of alcohol for the torts of their intoxicated patrons or guests is a matter of public policy which the legislature is best equipped to handle." [Emphasis added.] ).

Having carefully reevaluated our caselaw and its rationale, we decline to overrule Ling . Kudlacik fails to state a claim for negligence.

NO CLAIM FOR AIDING AND ABETTING

Kudlacik also argues he states a valid claim against Johnny's and Barley's on his aiding and abetting theory under Restatement (Second) of Torts § 876 (1979), notwithstanding whether Ling remains good law. We disagree because this rule applies only in narrow circumstances that are inapplicable here.

Under § 876,

"For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
"(a) does a tortious act in concert with the other or pursuant to a common design with him, or
"(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
"(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person."

As to the "substantial assistance" requirement,

"The assistance of or participation by the defendant may be so slight that he is not liable for the act of the other. In determining this, the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other and his state of mind are all considered." Restatement (Second) of Torts § 876, Comment on Clause (b).

And this court has stated,

" § 876... is applied in Kansas when tortfeasors who act in concert engage in some affirmative conduct relating to the plaintiff's injury, but the legal relationship which exists among them eliminates the possibility of comparing their conduct for purposes of apportioning liability. Section 876 is not applied when the Kansas comparative negligence statute, K.S.A. 60-258a, requires imposition of individual liability for negligent torts based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages." Yount v. Deibert , 282 Kan. 619, Syl. ¶ 2, 147 P.3d 1065 (2006).

This rule establishes the contours of two or more parties' joint and several liability for a single tort. Yount , 282 Kan. at 633, 147 P.3d 1065. Under § 876, if Johnny's and Barley's conduct amounts to participating in Smith's tort-negligently operating a vehicle-they might be jointly and severally liable with Smith. See Woods v. Cole , 181 Ill.2d 512, 519, 230 Ill.Dec. 204, 693 N.E.2d 333 (1998) ("[A] tortfeasor who acts in concert with other individuals in causing a plaintiff's injury is held jointly and severally liable for that injury because the tortfeasor is legally responsible for the actions of the other individuals.").

Kudlacik analogizes his facts to Simmons v. Homatas , 386 Ill.App.3d 998, 325 Ill.Dec. 898, 898 N.E.2d 1177 (2008). There, the defendant substantially assisted the tortfeasor in negligently operating a vehicle when it encouraged the tortfeasor to drink hard liquor steadily for two hours, evicted him from its premises, placed him in his vehicle's driver's seat, and demanded he leave. 386 Ill.App.3d at 1008-09, 325 Ill.Dec. 898, 898 N.E.2d 1177. The court distinguished this from a fact pattern in which there was no liability-a repair shop returning a repaired vehicle to an intoxicated patron. The key distinction for liability purposes under § 876 was that there was no evidence the repair shop encouraged the patron to drive the car. 386 Ill.App.3d at 1007-08, 325 Ill.Dec. 898, 898 N.E.2d 1177.

Kudlacik does not allege facts showing either defendant knew Smith's conduct constituted a breach of duty or that they substantially assisted Smith in his negligent driving. He alleges no facts approaching those in Simmons . Kudlacik fails to state a claim under Restatement § 876.

Affirmed.