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.
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.
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.
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.
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.
a prosecutor argues facts outside the evidence, the first
prong of the prosecutorial error test is met.
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.
of the judgment of the Court of Appeals in an unpublished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.
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.
E. Schroeder, district attorney, argued the cause, and Derek
Schmidt, attorney general, was with him on the brief for
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.
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.
and Procedural Background
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.
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 ...