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State v. Brown

Supreme Court of Kansas

March 1, 2019

State of Kansas, Appellee,
v.
Wyatt G. Brown, Appellant.

         SYLLABUS BY THE COURT

         A criminal defendant's due process rights are violated if he or she receives a more severe sentence only because of a prior successful appeal.

          Review of the judgment of the Court of Appeals in an unpublished opinion filed June 17, 2016.

          Appeal from Brown District Court; John L. Weingart, judge.

          Kai Tate Mann, of Kansas Appellate Defender Office, argued the cause, and Carol Longenecker Schmidt, was with him on the briefs for appellant.

          Kevin M. Hill, county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the briefs for appellee.

          BEIER, J.

         This 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 resentencing.

         Factual and Procedural Background

         Defendant 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.

         A panel 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 App. 2014) (unpublished opinion) (Brown I).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 [2011]).

         On 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 today:

"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?
"[PROSECUTION]: Yes.
"THE COURT: And the victims would-are in agreement with your recommendations?
"[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?
"[PROSECUTION]: Yes.
"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 ...

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