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State v. Wilson

Supreme Court of Kansas

December 14, 2018

State of Kansas, Appellee,
v.
Grant Wilson, Appellant.

         SYLLABUS

         1. Under Supreme Court Rule 8.03(h)(1) (2018 Kan. S.Ct. R. 53), now Rule 8.03(i)(1) as amended July 1, 2018, a party must allege an issue was decided erroneously by the Court of Appeals for that issue to be properly before the Supreme Court on petition for review.

         2. Prosecutorial error jurisprudence recognizes a prosecutor's conduct can implicate a criminal defendant's due process rights to a fair trial under the Fourteenth Amendment to the United States Constitution.

         3. The two-step analytical framework set out in State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016), for reviewing claims alleging a prosecutor's trial behavior requires reversal applies to a prosecutor's conduct during a sentencing proceeding before a judge.

         4. Appellate courts evaluate claims of prosecutorial error by first deciding whether the act complained of falls outside the wide latitude afforded to prosecutors to conduct the State's case in a way that does not offend the defendant's constitutional right to a fair trial. If it finds error, the appellate court determines if that error prejudiced the defendant's right to a fair trial.

         5. When evaluating the prejudice step for prosecutorial error, an appellate court applies the traditional constitutional harmlessness inquiry from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Prosecutorial error is harmless if the State shows beyond a reasonable doubt the error did not affect the trial's outcome in light of the entire record, i.e., there is no reasonable possibility the error contributed to the outcome at issue.

         6. When a prosecutor argues facts outside the evidence, the first prong of the prosecutorial error test is met.

         7. In deciding whether lifetime postrelease supervision violates Section 9 of the Kansas Constitution Bill of Rights because it is grossly disproportionate to the convicted offense, a sentencing judge errs when the judge's decision is based on a factual determination unsupported by the evidence, i.e., lacks substantial competent evidence.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed December 16, 2016. Appeal from Reno District Court; Joseph L. McCarville III, judge.

         Judgment of the Court of Appeals reversing the district court is affirmed as to the issue subject to review. Judgment of the district court is reversed as to the issue subject to review, and the case is remanded with directions.

          Caroline M. Zuschek, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

          Keith E. Schroeder, district attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

          OPINION

          Biles, J.

         Grant Wilson appeals a modification made to his criminal sentence. He contends the prosecutor misstated to the sentencing court the facts underlying his conviction and the facts of a court case cited by Wilson as legal authority against the modification. A divided Court of Appeals panel could not agree on the errors or the appropriate standard of review to assess any resulting prejudice. State v. Wilson, No. 114, 567, 2016 WL 7324427 (Kan. App. 2016) (unpublished opinion). We granted review to consider those questions and now remand the case to the district court for a new hearing on the State's motion to correct an illegal sentence.

         We hold prosecutorial error may occur during a sentencing proceeding before a judge. We also hold the analytical framework from State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016), applies in both the guilt and penalty phases of any trial-whether before a jury or judge. And based on the Sherman test, we hold there was reversible error at Wilson's sentencing hearing.

         Factual and Procedural Background

         In 2007, Grant Wilson pled guilty to aggravated indecent solicitation of a child. He later failed to meet his probation terms and was eventually ordered to serve his underlying prison sentence of 32 months. In 2015, the State moved to correct an illegal sentence, arguing the district court erred by not imposing lifetime postrelease supervision as part of Wilson's original sentence. At the hearing on that motion, Wilson claimed lifetime supervision was grossly disproportionate to his offense, amounting to cruel or unusual punishment prohibited by Section 9 of the Kansas Constitution Bill of Rights. The court rejected Wilson's argument based on State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), and granted the State's motion.

         On appeal, Wilson raised two issues: (1) whether the prosecutor deprived him of a fair sentencing hearing by misstating facts in his case and those in an unpublished Court of Appeals decision cited as authority for Wilson's Freeman claim; and (2) whether the district court erred by rejecting his disproportionality argument under Freeman. The first claim intersects with the second to the extent Wilson argues the prosecutor's comments denied him a fair hearing on the following Freeman factor:

"The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the ...

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