Appeal from Montgomery District Court; ROGER L. GOSSARD, judge.
BY THE COURT
1. A defendant has a constitutional right to have a jury determine beyond a reasonable doubt any aggravating factor used by the court to impose an upward durational departure sentence. A court-conducted departure proceeding is unconstitutional unless the defendant has validly waived her or his right to have a jury determine the existence of such aggravating factors.
2. To be constitutionally valid, a defendant's waiver of the right to a jury in an upward durational departure sentencing proceeding must be a voluntary, knowing, and intelligent act performed with sufficient knowledge of the relevant circumstances and likely consequences of that waiver. A guilty or no contest plea to a criminal offense, standing alone, does not constitute a voluntary, knowing, and intelligent waiver of the right to a jury for an upward durational departure sentence proceeding.
3. A voluntary, knowing, and intelligent waiver by a criminal defendant of her or his statutory right to appeal as part of a plea agreement is generally enforceable. However, a plea agreement reasonably susceptible to different interpretations is ambiguous, and an ambiguous plea agreement must be strictly construed in favor of the defendant.
4. A waiver of the right to appeal an upward durational departure sentence unconstitutionally imposed by the district court on a defendant who did not waive the right to a jury's determination of aggravating factors is unenforceable. An appellate court has jurisdiction to review the constitutionality of an upward durational departure proceeding and, if it was unconstitutional, any illegal sentence that resulted.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, of Office of Kansas Attorney General, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.
Jennifer Bennett was originally charged with off-grid first-degree murder. Under a plea agreement, she pled no contest to a reduced charge of second-degree murder, agreed to and received an upward durational departure sentence of 300 months in prison, and waived her right to appeal that sentence. On appeal, she asserts that her agreed-upon sentence was unconstitutionally imposed because she was never advised of and never waived her constitutional right to have aggravating factors that might justify an enhanced sentence submitted to a jury to be proved beyond a reasonable doubt. The State argues that Bennett waived her right to appeal her sentence and that we have no jurisdiction to consider the merits of the appeal. We find that Bennett's waiver of her
right to appeal her sentence is not technically implicated in this appeal, which is actually a challenge to the constitutionality of the procedure employed by the trial court to impose the resulting sentence. Even if we treat this as an appeal from the sentence, Bennett's sentence appeal waiver was ineffective and we would still entertain her appeal. Bennett's upward durational departure sentence was unconstitutionally imposed, so we vacate Bennett's illegal sentence and remand the case to the district court for resentencing.
Factual and Procedural Background
On September 18, 2012, Bennett drove a vehicle off the road, over a sidewalk, and into a yard where she caused it to strike and injure Martin Dunn. Dunn and Bennett had been in a relationship and had one child together. Dunn died of his injuries. The State charged Bennett with off-grid first-degree murder. After plea negotiations the parties reached an agreement: The State would reduce the charge to second-degree murder in exchange for Bennett's no contest plea, her agreement to an upward durational departure sentence of 300 months in prison, and her waiver of her right to appeal the 300-month sentence.
The parties reduced their agreement to writing in two separate documents, one titled Defendant's Acknowledgement of Rights and Entry of Plea, the other titled Defendant's Acknowledgment of Rights and Petition to Enter Plea Pursuant to Plea Agreement. Bennett, her attorney, and the prosecutor signed each document.
The district court conducted the plea hearing on October 9, 2013. The court indicated at the outset that the sentencing range for the amended charge of second-degree murder was from 147 months to 653 months in prison, depending on Bennett's criminal history. The court acknowledged that it had received a plea petition. Bennett's attorney stated the terms of the agreement for the court:
" Your Honor, in exchange for the state filing this amended charge, Ms. Bennett will plead 'no contest' to the charge of Murder in the Second Degree. It's a level 1 person felony. Parties agree to recommend an upward durational departure sentence to 300 months with 36 months of post-release supervision.
" Ms. Bennett is waiving her right to appeal and filing a 60-1507 motion, and that's set forth in the Petition to Enter a Plea Agreement and Acknowledgment of Rights. However, in the event that a sentence in excess of 300 months is entered by the Court, Ms. Bennett is retaining the right to appeal any sentence in excess of 300 months."
Defense counsel then asked that the district court accept Bennett's no contest plea to the amended charge.
The district court confirmed with Bennett that she had signed the written plea documents, that she was 23 years old, that she had completed 9 years of school, that she was taking Haldol, that her mind was clear, that she had been provided adequate time to discuss the plea with her attorney, and that she was satisfied with his advice and counsel. Regarding Bennett's jury trial rights, the judge stated:
" You do need to understand that when you enter into a plea, you are giving up basic rights that you have. You're giving up your right to a jury trial; you're giving up your right to make the State prove you guilty beyond a reasonable doubt of this amended charge; you're giving up the right to have your attorney cross-examine the State's witnesses; you're giving up the right to call your own witnesses in your defense; you're giving up the right to remain silent.
" Knowing that you're giving up all of these rights when you enter this 'no contest' plea, is it still your intention to go ahead with ...