Review of the judgment of the Court of Appeals in an unpublished opinion filed July 27, 2012.
Appeal from Lyon District Court; W. LEE FOWLER, judge.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, sentence vacated, and remanded with directions.
BY THE COURT
1. Pursuant to K.S.A. 2013 Supp. 22-3424(e)(4), a convicted criminal defendant has the right to present to the sentencing court any evidence in mitigation of punishment.
2. An erroneous denial of a defendant's motion for continuance to obtain and present mitigating evidence in support of a motion for a durational departure sentence is not harmless where the sentencing court denies the departure motion based upon the defendant's failure to present evidence in support of the departure.
Gerald E. Wells, of Lawrence, was on the brief for appellant.
Amy L. Aranda, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
After being charged with numerous sex offenses involving his teenage stepdaughter, Charles Haney agreed to plead nolo contendere to one count each of aggravated sodomy and attempted aggravated sodomy. In exchange for the plea, the State dismissed the other charges and agreed to a sentencing recommendation that permitted Haney to seek a shorter prison term through a durational departure, but he could not seek probation. Although the district court knew that the Board of Indigents' Defense Services (BIDS) had approved Haney's request to fund a sex offender evaluation to use in support of his motion for a durational departure sentence, the court denied Haney's request to continue the sentencing hearing to allow for the completion of that evaluation. The Court of Appeals found the district court's continuance [299 Kan. 257] denial was erroneous but harmless. State v. Haney, 281 P.3d 597, 2012 WL 3135719, at *4 (Kan. App. 2012) (unpublished opinion). We granted review.
Finding that the district court committed reversible error by denying Haney's motion to continue the sentencing hearing, we vacate his sentence and remand for further proceedings consistent with this opinion. Given our disposition, Haney's request for a remand pursuant to State v. Van Cleave, 239 Kan. 117, Syl. ¶ 2, 716 ...