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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 98,433

STATE OF KANSAS,

Appellee,

v.

KENNETH E. FROST,

Appellant.

SYLLABUS BY THE COURT

When one of the justices of the Supreme Court is disqualified to participate in a 

decision of the issues raised in an appeal or petition for review, and the remaining six 

justices are equally divided as to the proper disposition of the appeal, the judgment of the 

court from which the appeal or petition for review is made must stand.

Review of the judgment of the Court of Appeals in an unpublished opinion filed July 31, 2009. 

Appeal from Johnson District Court; STEPHEN R. TATUM, judge. Oral argument held May 17, 2023. 

Opinion filed October 4, 2024. Judgment of the Court of Appeals affirming the district court stands. 

Judgment of the district court is affirmed.

David Scott Patrzykont, of David S. Patrzykont, Attorney at Law, P.A., of Kansas City, argued 

the cause, and Gerald E. Wells, of Jerry Wells Attorney-at-law, of Lawrence, and Lydia Krebs, of Kansas 

Appellate Defender Office, were with him on the briefs for appellant, and Kenneth Frost, appellant, was 

on a supplemental petition for review pro se.

Kendall S. Kaut, assistant district attorney, argued the cause, and Steven J. Obermeier, assistant 

district attorney, Shawn E. Minihan, assistant district attorney, Phill Kline, former district attorney, 

Stephen M. Howe, district attorney, Steve Six, former attorney general, and Derek Schmidt, attorney 

general, were with him on the briefs for appellee.
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PER CURIAM: Kenneth E. Frost challenges a 2009 Court of Appeals' decision 

affirming his conviction of aggravated indecent liberties with a child for acts that took 

place more than 20 years ago. Frost has pursued a series of post-conviction proceedings 

in state and federal court following that 2009 decision. Through these filings, Frost has 

argued his trial attorney, the attorney who represented him in posttrial proceedings in the 

district court, and his appellate attorney were ineffective. He also contends the prosecutor 

erred during arguments to the jury.

He first raised his claims of ineffective assistance of counsel in the district court 

by filing a motion for new trial. After a hearing, the court denied his motion. Frost then 

appealed to the Court of Appeals, raising his ineffective assistance of counsel claim, 

prosecutorial misconduct, and other issues. The Court of Appeals affirmed the district 

court. State v. Frost, No. 98,433, 2009 WL 2371007, at *3-12 (Kan. App. 2009) 

(unpublished opinion). This court denied review of the decision on September 7, 2010. 

Frost then sought relief in federal court. He was again unsuccessful in both the 

district court, Frost v. McKune, No. 11-3170-SAC, 2013 WL 812153, at *2 (D. Kan. 

2013) (unpublished opinion), and in appealing that decision, Frost v. Pryor, 749 F.3d 

1212, 1227 (10th Cir. 2014). Within one year of the Tenth Circuit's decision, Frost filed a 

pro se motion under K.S.A. 60-1507 in Johnson County District Court.

In that proceeding, the district court judge held (among other things) that Frost's 

appellate counsel was ineffective for not including certain issues in Frost's petition that 

asked this court to review the Court of Appeals 2009 decision affirming his conviction. 

As a remedy, the court allowed Frost to file a new petition for review. Frost filed a 

motion with this court, and Justice Melissa Standridge, who was a Court of Appeals 

judge on the panel that decided the 2009 Court of Appeals decision, recused from 

consideration of any action by this court. The remaining six members of the court voted 

to withdraw its 2019 mandate in Frost's direct appeal from his convictions, allowed Frost
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to file a new petition for review, and allowed Frost to file a pro se supplemental petition 

for review. 

We granted review of both petitions and considered the merits of the arguments 

raised. The remaining six members of the court are equally divided as to the proper 

disposition of this appeal. Chief Justice Luckert and Justices Stegall and Wilson would 

affirm the Court of Appeals decision. Justices Rosen, Biles, and Wall would reverse and 

grant a new trial.

Since the Supreme Court is equally divided in this case, the judgment of the Court 

of Appeals affirming the district court stands. Williams-Davidson v. Lui, 318 Kan. 491,

492, 544 P.3d 854 (2024). As we explained in State v. Buchhorn, 316 Kan. 324, 325, 515 

P.3d 282 (2022) (quoting Paulsen v. U.S.D. No. 368, 239 Kan. 180, 182, 717 P.2d 1051 

[1986]):

"'The general rule in this jurisdiction, and elsewhere, is that when one of the 

justices is disqualified to participate in a decision of issues raised in an appeal and the 

remaining six justices are equally divided in their conclusions, the judgment of the trial 

court must stand. [Citations omitted.] See also Kansas Constitution, Art. 3, § 2, which 

provides that the concurrence of four justices shall be necessary to a decision.'"

The court being equally divided, the judgment of the Court of Appeals affirming

the district court stands. The district court is affirmed. 

STANDRIDGE, J., not participating.