Appeal from Douglas District Court; PAULA B. MARTIN, judge.
SYLLABUS BY THE COURT 1. An allegation that the State breached a plea agreement presents a question of law over which this court exercises unlimited review. 2. A prosecutor's comment about a defendant's dishonesty and inability or unwillingness to address "his looking at child pornography or desire to look at child pornography" violated the State's promise to stand silent at the sentencing hearing in which the defendant sought a dispositional departure to probation. The defendant's sentence must be vacated and the case remanded to a different judge of the district court for a new sentencing or plea withdrawal. 3. When a defendant requests specific performance of a plea agreement, the appropriate remedy for the State's breach, unless harmless, is to vacate the sentence and remand for a new sentencing hearing before a different judge, where the State will have the opportunity to fulfill its obligations under the plea agreement.
The opinion of the court was delivered by: Beier, J
Review of the judgment of the Court of Appeals in an unpublished opinion filed July 30, 2010.
Judgment of the Court of Appeals affirming in part and dismissing in part is reversed. Judgment of the district court is reversed, sentence is vacated, and case is remanded with directions.
The opinion of the court was delivered by
Defendant Robert Peterson pleaded no contest to attempted sexual exploitation of a child after digital photographs of children engaged in sexual acts were found on his work computer. The district court judge sentenced Peterson to 52 months in prison, with lifetime postrelease supervision. In Peterson's petition for review, he claims that (1) the State violated his plea agreement by failing to remain silent at sentencing; (2) lifetime postrelease supervision constitutes cruel and/or unusual punishment; and (3) his sentence violates his rights under the Sixth and Fourteenth Amendments to the United States Constitution because aggravating factors were not proved to a jury beyond a reasonable doubt.
We vacate Peterson's sentence and remand to the district court for further proceedings based on the State's violation of the plea agreement. This result eliminates any need to reach Peterson's second and third issues.
FACTUAL AND PROCEDURAL BACKGROUND
Peterson was charged with two counts of sexual exploitation of a child under K.S.A. 2006 Supp. 21-3516(a)(2). In exchange for Peterson's plea of no contest, the State amended the information to a single count of attempted sexual exploitation of a child in violation of K.S.A. 21-3301 and K.S.A. 2006 Supp. 21-3516(a)(2).
As part of the plea agreement, the State agreed not to object to Peterson's motion for dispositional departure to probation. The State also agreed to remain silent at sentencing unless there were misstatements of fact.
At the first of two hearings on sentencing, the district judge found Peterson to be a persistent sex offender because of a 1994 sexual battery conviction. Under the Kansas Sentencing Guidelines Act, this finding doubled the duration of Peterson's presumptive sentence.
At the same hearing, Peterson called clinical psychologist Robert Barnett as a witness. Barnett had not been present at Peterson's preliminary hearing. Barnett testified that he conducted a clinical interview of and testing on Peterson and, based on the facts of the case as provided to him by Peterson, concluded that Peterson was "a good candidate for probation." Peterson had told Barnett that the images of child pornography were from "pop-up" Internet windows that displayed the images after Peterson did a search for information on a child's murder that had been the subject of widespread national media coverage.
The prosecutor at the hearing, Amy McGowan, was not the same prosecutor who had handled the plea agreement with Peterson, but she did handle his preliminary hearing. Peterson's counsel had agreed to allow McGowan to cross-examine Barnett.
McGowan focused her questions on the information Peterson had provided to Barnett, and Barnett testified that he was aware two girls had accused Peterson of fondling them in 1994. Barnett admitted he was unaware that there were, in fact, five different girls who had made accusations; he also was unaware of the children's ages. Barnett also did not know that, on the two occasions originally charged in this case, Peterson was searching for variations of the term "lolita" and visiting "lolita" websites while at work.
Peterson objected to McGowan's line of questioning on the grounds that it presented the same evidence offered at Peterson's preliminary hearing and went "beyond the scope of the plea agreement in this case which was that the State was going to stand silent at sentencing." The district court judge overruled the objection because Peterson had provided an incomplete history to Barnett. The judge said Barnett had "a right to know" all of the information imparted by McGowan's questions in order to form his professional opinion.
McGowan then continued her cross-examination. Barnett said he was unaware that 1,297 images of female children in swimsuits and underwear and 617 images of nude children and children engaged in sexual acts were found on Peterson's work computer. Barnett nevertheless maintained that he did not believe Peterson was a pedophile or a risk to the community. McGowan then asked: "But it's been established ...