State v. Bennett, 111,362.

• Decision Date: 03 April 2015
• Docket Number: 111,362.
• Citation: 51 Kan.App.2d 356,347 P.3d 229
• Parties: STATE of Kansas, Appellee, v. Jennifer Larae BENNETT, Appellant.
• Court: Kansas Court of Appeals

51 Kan.App.2d 356

347 P.3d 229

STATE of Kansas, Appellee

v.Jennifer Larae BENNETT, Appellant.

111,362.

Court of Appeals of Kansas.

April 3, 2015.

Review Denied Nov. 20, 2015.

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.

Opinion

JOHNSON, 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 this plea this morning?”

Bennett answered: “Yes.”

After confirming with Bennett that she had not been coerced into entering her plea, the district court stated to Bennett:

“I want you to understand that your sentence—you have a plea agreement where there will be an upward departure to 300 months. The sentence will be up to the judge, and I'm sure Mr. Rickman [Bennett's attorney] has explained that to you. You're waiving your right to appeal the case, except that you may appeal it if the sentence is over 300 months.

“Do you understand that?”

Bennett answered: “Yes.”

The district court then advised Bennett that a presentence investigation would be done to determine her criminal history. The judge pointed out, though, that “[a]gain, you're looking at an upward departure to 300 months, so that's pretty well set in stone if the judge goes along with it, and most likely he will.” The judge acknowledged that, under the plea agreement, “with your upward departure to 300 months, that may not be a factor, but I just wanted to explain that to you.”

The State provided the factual basis for the plea. The court then found that Bennett had voluntarily entered her no contest plea. The judge again directly addressed Bennett:

“Ms. Bennett, I want to ask you one more time, you understand that if this plea agreement is accepted by Judge Gossard, who will be the sentencing judge, you'll be sentenced to 300 months with the Kansas Department of Corrections and your plea agreement is that you're waiving your right to appeal the case? You're also not going to file any 60–1507 motion alleging ineffective counsel. Only if you're sentenced to more than 300 months do you have the right to appeal.”

Bennett indicated that she understood.

The district court then found Bennett guilty of murder in the second degree, a level 1 person felony, and set the case for sentencing. At no time during the hearing did the district court refer to, let alone explain to Bennett, her separate right to have a jury determine the existence of aggravating factors that might justify an upward durational departure sentence. The record is also clear that Bennett did not waive her right to have a unanimous jury determine whether, beyond a reasonable doubt, such aggravating factors existed. The plea documents make no mention of the right to a jury determination on aggravating factors, and they do not contain a written waiver of that right.

On December 3, 2013, a different judge conducted the sentencing hearing. The court first stated that Bennett's criminal history score was H so her guidelines sentencing range was from 166 to 186 months in prison. It noted that the parties had joined in a motion for an upward durational departure to a 300–month prison sentence. It acknowledged that the motion proffered reasons to justify the sentence. The sentencing court then announced its departure decision: It found that Bennett intentionally struck the victim with her car and caused serious injuries that resulted in the victim's death and that those were “substantial and compelling circumstances to permit this Court to enter into an upward durational departure” to the agreed-upon 300–month sentence.

The sentencing judge did not ask the parties whether Bennett had waived or was waiving her right to submit the aggravating factors to a jury. Nor did the judge refer to Bennett's waiver of her right to appeal her sentence. Rather, at the conclusion of the hearing, the judge stated, “And, Ms. Bennett, you have a right to appeal the sentence if you think it is inconsistent with Kansas Sentencing Guidelines, case or statutory law, within 14 days of today's date. I think it is 14 days, isn't it, Mr. Rickman?” Bennett's attorney answered affirmatively. Neither attorney pointed out to the court, or to Bennett for that matter, that Bennett had indicated at her plea hearing that she was waiving her right to appeal a 300–month sentence.

Within 14 days of her sentencing, Bennett timely appealed.

Analysis

Bennett argues that her upward durational departure sentence was unconstitutionally imposed and is therefore an illegal sentence. She points out that she was never informed on the record of her separate right to a jury for the departure phase of her sentencing and that she never waived her right to that separate jury proceeding. She claims that, because a district judge imposed the departure sentence without submitting the aggravating factors to a jury to be proved beyond a reasonable doubt, the sentencing was conducted in violation of the holding in Apprendi v. New Jersey,

530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), K.S.A. 2014 Supp. 21–6815(b), and K.S.A.2014 Supp. 21–6817(b) (codifying Apprendi as to upward durational departure sentences).

The State does not actually challenge Bennett's claim that the sentencing procedure employed by the trial court was unconstitutional. Rather, the State contends that we are without jurisdiction to consider Bennett's claim because Bennett waived her right to appeal her sentence. We first explain why Bennett's sentence is unconstitutional to place in context our rejection of the State's challenge to our jurisdiction.

The facts here are undisputed. They...