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April 1, 1994.


In 1979, Randolph C. Cabral was convicted of aggravated kidnapping and rape. He was sentenced to life in prison for the aggravated kidnapping and 30 years to life for the rape. The conviction for aggravated kidnapping was reversed by the Kansas Supreme Court, and the rape conviction was affirmed. State v. Cabral, 228 Kan. 741, 619 P.2d 1163 (1980). In 1990, Cabral filed a K.S.A. 60-1507 motion, which was initially denied without an evidentiary hearing. We reversed the decision of the trial court and remanded. Cabral v. State, No. 65,783, unpublished opinion filed October 4, 1991.) This appeal is from the trial court's denial of relief on remand.

The issue raised in the 60-1507 motion was whether an immunity agreement between Cabral and the State was breached at the time of his sentencing for aggravated kidnapping and rape. On the first appeal to this court, we held that the trial court had not properly considered the issue. On remand, the trial court was instructed to determine whether the immunity agreement was violated and, if so, whether Cabral had waived his right to raise that issue. After our remand, the trial court conducted an evidentiary hearing and determined that the immunity agreement was not violated but concluded that, even if it was, Cabral had waived his right to raise the issue. This appeal followed.

The agreement in question was entered into in 1979. At that time, Cabral stood charged with illegal possession of marijuana. He was also well known to law enforcement officials in Reno

[19 Kan. App. 2d 458]

      County. As a juvenile, he had exhibited a penchant for burglary and was known to defecate in the middle of the houses he burglarized. At the time of the agreement in question, he was represented by Kenneth F. Ehling, who is now deceased. The facts indicate that Cabral agreed to provide information clearing a number of unsolved burglaries and thefts in exchange for having the marijuana charge dismissed and being granted immunity from prosecution. Ultimately, an understanding was reached; Cabral provided information to the State to clear some 27 prior burglaries and thefts in exchange for a grant of immunity and the dismissal of the current charges.

  The immunity agreement was oral and is somewhat lacking in specificity. After the information was disclosed, Joseph O'Sullivan, the then Reno County Attorney, wrote a letter to Ehling summarizing the agreement as follows:
"This letter is a follow-up to numerous meetings involving Randy Cabral, Det. Jake Koontz and you and me regarding the above captioned case and other matters. Principally, we discussed the matters listed subsequently in this letter on February 9 and February 16, 1979. At those meetings, we reached an agreement on the disposition of the above captioned case which is as follows.
"In exchange for information relating to the below listed criminal offenses, the Reno County Attorneys office will dismiss the matter entitled State v. Randall Cabral, 78CR 352 with prejudice. The County Attorney further agrees not to refile the matter concerning the Burglary of Stanley Liquor Store and the assault of one Kathy Frazier. As a further part of the agreement Randy Cabral is given immunity from prosecution on any matter listed below and will not be called as a prosecution witness at any time in any proceeding relating to those offenses. It is understood that Randy Cabral's name may be used in affidavits associated with search warrants executed for the return of stolen merchandise from the below listed offenses. The matters which were discussed are as follows: [listing of 22 burglaries and thefts]."
  This letter, along with a handwritten note taken at the time the immunity agreement was finalized, are the only documents from which that agreement can be verified.

  As we understand the record, Cabral has never been prosecuted for any of the crimes disclosed and mentioned in the agreement, nor has he been called upon to testify concerning any of the matters stated. However, at the time of his sentencing for aggravated kidnapping and rape in 1979, O'Sullivan told the court:

[19 Kan. App. 2d 459]


"Randy Cabral is no stranger to the courts> of Reno County, Kansas, although he has only one prior felony conviction. He was granted a parole; he did serve time from the court, originally was paroled; went back again; was paroled again and went back again and finally flattened his time.
"As a juvenile he [had] an extensive record which one of his trademarks when he burglarized a house was to defecate in the middle of the house before he left according to Lieutenant Johnson of the Police Department.
"I can tell this court that as early as the spring of 1979 Mr. Cabral had a felony possession of marijuana complaint dismissed against him in exchange for his cooperation in clearing 27 burglaries and thefts. At that time it was discussed with him Mr. Cabral, your slate is clean. You have immunity from prosecution for any crime that you've committed. You can start anew in this community. You can clear everything because we're not going to prove it anyway and he did his best; and the discussions were had at that time that now it can be a new life if you want it.
"He then commits this crime which I think makes it that much more reprehensible and considering the background that he had and the time that he spent in the penitentiary and the penalty he knows one faces for committing crimes this still happened."
  At the time O'Sullivan made this statement, Cabral was present in court with counsel. However, there was no objection by Cabral or his attorney to these remarks. It was not until 1990 when the present 60-1507 motion was filed that Cabral raised the issue of the remarks violating his immunity agreement. Cabral testified that while O'Sullivan was making the remarks, he turned to his attorney and said: "I don't think he's supposed to be saying those things or mentioning any of that stuff." According to Cabral, his attorney replied, "[I]t doesn't make any difference; you're going to do a life sentence anyway." This statement was indeed prophetic and remained accurate up until the time the Kansas Supreme Court vacated the aggravated kidnapping conviction. In any event, no contemporaneous objection was made as to the prosecutor's comments.

  At the hearing on remand, a letter from Kenneth Ehling to Cabral was introduced as evidence. According to Ehling, O'Sullivan told him the day before sentencing that he would not refer to the immunity agreement at sentencing. O'Sullivan was called as a witness and denied telling Ehling any such thing and emphatically denied that he had breached or violated the immunity agreement in any fashion.

[19 Kan. App. 2d 460]


  The argument which Cabral puts forth is that O'Sullivan breached the immunity agreement by his remarks disclosing that agreement and the crimes "cleared" as a result of the agreement at the time of Cabral's sentencing. Cabral argues that we should vacate his sentence because of this breach of the immunity agreement and remand for resentencing.

  The judge who imposed the sentence for aggravated kidnapping and rape on Cabral was J. Stanley Hill. Judge Hill is no longer active in the judiciary. However, Judge Hill did testify at the hearing on remand that, in sentencing Cabral, he did not consider O'Sullivan's remarks concerning unprosecuted burglaries. The life sentence for aggravated kidnapping was required by statute. The sentence for rape was doubled under the Habitual Criminal Act.

  The question we must determine is whether the remarks of O'Sullivan violated the immunity agreement. If they did, we must then decide whether that violation requires us to vacate Cabral's sentence. We conclude that the remarks were improper and breached the spirit, if not the literal terms, of the immunity agreement. However, we are unable to conclude that the breach requires us to vacate the ...

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