BY THE COURT
criminal defendant's due process rights are violated if
he or she receives a more severe sentence only because of a
prior successful appeal.
of the judgment of the Court of Appeals in an unpublished
opinion filed June 17, 2016.
from Brown District Court; John L. Weingart, judge.
Tate Mann, of Kansas Appellate Defender Office, argued the
cause, and Carol Longenecker Schmidt, was with him on the
briefs for appellant.
M. Hill, county attorney, argued the cause, and Derek
Schmidt, attorney general, was with him on the briefs for
case involves allegedly vindictive resentencing on remand
after a successful criminal appeal. Because we determine that
defendant Wyatt G. Brown's due process rights were
violated when he received more prison time, we vacate his
sentence and remand to the district court for another
and Procedural Background
Wyatt G. Brown originally was sentenced to 360 months'
imprisonment after he pleaded no contest to one count of
aggravated sodomy in violation of K.S.A. 2017 Supp.
21-5504(b)(1). In order to arrive at this sentence, the
district judge was required to grant two departures-first
from life with a mandatory minimum under Jessica's Law to
the Kansas Sentencing Guidelines grid for nondrug offenses,
and second from the range of 554 months to 618 months in the
applicable grid box to the 360-month term. To justify the
first departure, the judge cited Brown's entry into a
plea agreement under which the State would not appeal any
sentence of at least 360 months' imprisonment and
Brown's waiver of a trial in which the victim would have
been compelled to testify.
of our Court of Appeals vacated Brown's sentence on
appeal because the district judge had stated his reasons for
the first departure on the record but had not done so for the
second departure, as required by K.S.A. 2017 Supp.
21-6815(a). State v. Brown, No. 110, 709, 2014 WL
7152331, at *1-2 (Kan. App. 2014) (unpublished opinion)
(Brown I). The panel stated:
"If a Jessica's Law sentence is vacated and a remand
ordered for resentencing, the district court may reevaluate
the factors bearing on sentencing, including adding to them,
and regrant or deny a departure from Jessica's Law and a
dispositional departure from the default guidelines sentence
to probation, as well as a durational departure." 2014
WL 7152331, at *3 (citing State v. Spencer, 291 Kan.
796, 819, 248 P.3d 256');">248 P.3d 256 ).
remand, the same judge sentenced Brown to 372 months of
imprisonment. The following excerpts from the transcript of
the resentencing hearing are pertinent to the issue before us
"THE COURT: . . . [P]art of the plea agreement was that
the State would not appeal a sentencing of 360 months, if I
made my notes correct; is that right?
"[PROSECUTION]: Yes, I believe so.
"THE COURT: But today the State would still like to ask
for the 618 months; is that right?
"THE COURT: And the victims would-are in agreement with
"[PROSECUTION]: Well, yes. And I think what we are going
to discuss today, though, is that at the Court's
sentencing, cooperation was a big part of that, and the fact
that [Brown] hadn't put the victim through extra trauma.
And I think they're going to address the fact that this
has caused extra heartache and trauma to the family, the fact
that now we're back again for sentencing, and-
"THE COURT: Did-
"[PROSECUTION]: -his actions as a result of that.
"THE COURT: -the appeal?
"THE COURT: Of course, we don't know exactly how
much of that was the defendant's fault and how much it
was from an overzealous public, appellate public defender in
terms of what they did in this case. I mean, essentially, my
understanding of what the trial court was trying to do was
the trial court had two seasoned attorneys, a seasoned
prosecutor, a seasoned defense counsel who worked out a very
difficult case to avoid the necessity of a youth having to
testify, and the plea agreement gave parameters ...