1 

### IN THE SUPREME COURT OF THE STATE OF KANSAS

N o

. 12 2 , 252

S TATE OF 

### K ANSAS 

### , Appel l ee ,

v

. C ARRODY 

### M. B UCHHORN 

### , Appell ant

.

SYLLABUS BY THE COURT

W hen one of the justices 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 issues on appeal or review , 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Review of the judgment of the Court of Appeals in an unpublished opinion filed August 1 3 , 202 1

. Appeal from Douglas D istrict C ourt; S ALLY D. P OKORNY , judge

. Opinion filed August 19 , 20 2 2

. Judgment of the Court of Appeals reversing the district court stands . Judgment of the district court is reversed, and the case is remanded with directions

.

William J. Skepnek , of The Skepnek Law Firm, P.A. , of Lawrence , argued the cause , and Keynen J. (K.J.) Wall , R ussell J. Keller , and Quentin M. Templeton , of Forbes Law Group, LLC, of Overland Park, and Stephan L. Skepnek , of The Sader Law Firm, of Kansas City, Missouri , and Kevin Babbit , of Fagan & Emert, LLC, of Lawrence, w ere with him on the brief s for appellant.

Kris Ailslieger , deputy solicitor gener al , argued the cause , and Emma C. Halling , assistant district attorney, Kate Duncan Butler , assistant district attorney, Joshua David Se iden , deputy district attorney, Charles E. Branson , former district attorney, Suzanne Valdez , district attorney, and Derek Schmidt , attorney general, w ere on the brief s for appellee.2



### P ER 

### C URIAM 

### : This matter involves a child who died unexpectedly at the home daycare where Carrody M. Buchhorn worked. After the Douglas County coroner ruled the child's death was instantaneous and caused by a blow to the head, a jury convicted Buchhorn of second

- degree murder. A C ourt of A ppeals panel reversed Buchhorn's conviction and remand ed for a new trial because her trial counsel's constitutionally deficient performance prejudiced her right to a fair trial. This court granted review

.

Justice Wall took no part in this review because of his prior connection with the case while in private p ractice before joining the Supreme Court. The remaining six members of the c ourt are equally divided on how the issues on review should be decided. We stated the applicable rule in P aulsen v. U.S.D. No. 368, 239 Kan. 180, 182, 717 P.2d 1051 (1986):

"The g eneral 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 , the court from which review is sought, reversing the district court and remanding with directions stands. B uchhorn's cross

- petition for review is dismissed as moot.

W ALL 

### , J., not participating.