State v. Brown

• Citation: 435 P.3d 546,309 Kan. 369
• Decision Date: 01 March 2019
• Docket Number: No. 113,751,113,751
• Parties: STATE of Kansas, Appellee, v. Wyatt G. BROWN, Appellant.
• Court: United States State Supreme Court of Kansas

309 Kan. 369

435 P.3d 546

STATE of Kansas, Appellee,

v.Wyatt G. BROWN, Appellant.

No. 113,751

Supreme Court of Kansas.

Opinion filed March 1, 2019

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.

The opinion of the court was delivered by 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. 110709, 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 App. 2014) (unpublished opinion) ( Brown I ).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 [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 to the Court, and the Court found that the plea agreement was ... appropriate. And the Court sentenced accordingly."

At this point, the victim's mother was permitted to make a statement.

"[J.M.]: This resentencing and Mr. Brown's appeal has revictimized our child and the entire family. We thought the past sentencing date was this family's closure, that we could all start to heal. (Crying.)

....

"[J.M.]: ... This all being brought ... has brought back all the original fear, anxiety, fear of [being] threatened, unsafe, emotional duress, and mental anguish. It has further inconvenienced us to come to court, causes more financial burden to ourselves, as well as the State of Kansas. It's like he violated our baby all over again.

"Our family thought that Mr. Brown's original sentence was more than generous. Thirty years was doable since our child didn't have to testify and face him. He agreed with the plea, not to appeal the sentencing, yet here we are going today.

"Facing him again is very difficult, difficult in that for some reason he feels the injustice in this case is to him which in fact it is to our daughter.

"She, as we—as were we, slowly beginning the healing process. Resurfacing—sorry. Resurfacing this just put the healing back to square one.

"This family, our child especially, will carry this with us and her the rest of our lives. There will always be some thing that triggers it all back up to the front again, be it a sound, a smell, someone that resembles him. No amount of time or therapy is going to make this all disappear. It may go into a[n] off limits place in our minds, but it will never go away.

"Mr. Brown wants fair. Well, where is fair for our child, for our family?

"At this time we as a family for our child would like to ask the Court to consider the further damage this has done to our child and our family. We would like to see further time added."

The judge and the prosecutor then continued:

"THE COURT: ... All right. [Does the State] have any additional statements or arguments that you would like to make?

"[PROSECUTION]: Yes, your Honor, and I—You know, I understand the appellate defender chose their tactic, but the defendant's the one who decided that he needed to file the appeal, knowing—I mean, he's savvy enough with his prior criminal history to know that this would result in possibly a resentencing of this case. And that's what's happened.

"I think that's—You know, we still think 618 months is fair given the fact that he had committed a serious sexual offense prior to this one. And he—It's not like he's an old person. I think at the time of [the first] sentencing in this case the defendant was 24 years old, and yet he had already committed a very serious offense.

"So at the very least, we're asking the Court to impose more time than what was imposed at the [first] sentencing. Even though we're asking for 618 months I do think some additional time is warranted. I think the Court of Appeals acknowledged that when they indicated that the Court may reevaluate the factors bearing on sentencing, including adding to them, or regrant or deny a departure from Jessica's law and a dispositional departure from the default guidelines to probation, as well as a durational departure. So I think the Court of Appeals recognizes that.

"I think the major finding that this Court made was cooperation and not putting the victim through trauma. He has now done that.

....

"And—despite the fact the defendant has I think violated the spirit of this [plea agreement], we're not going to, because I think it's important for, you know, the victim not to have to be put through the trauma on this case, and that's the only reason that we're—

"THE COURT: So, so the State is not objecting to a granting of the departure from off-grid to grid; is that correct?

"[PROSECUTION]: That's correct."

The judge then discussed sentencing with defense counsel.

"[DEFENSE]: Judge, I—While I can appreciate some of the statements made by the victim in the matter, I think it really kind of doesn't comport with how this particular matter was handled by both my office and the appellate defender's office.

"Appeal is a matter of right. And I think the Court will recall, Mr. Brown's psychological condition had deteriorated over the time he'd spent in the Brown County Jail.

Frankly, I had the opportunity to speak with him on an ongoing basis, as far as the plea and the sentencing in this matter.

"What it takes at the end of a case, because I'm appointed by this Court to represent Mr. Brown, is that I have to file an appeal, unless he knowingly can consent and waive the right to file an appeal. I frankly was uncomfortable accepting any waiver from Mr. Brown at the time he was sentenced in this matter, thus the appeal had to be filed, acquired by my duty as court-appointed counsel.

"Mr. Brown has, and I have discussed his contact with the appellate defender during the pendency of the appellate case in this matter. He was kept up-to-date with the status of the appellate case by letter from the appellate defender. At no time did he actually ...

....

"... At that time, no time during the pendency of the appellate case did he actually speak with a member of the appellate defender's office.

"THE COURT: He did not?

"[DEFENSE]: He was kept up-to-date with the progress of his case by letter. He was not a, as far as I'm aware, a factor in the decision, the arguments that were made in front of the appellate court.

"I believe the way the appellate court opinion was written, the Court used the same mitigating circumstances that it used to make the departure in granting the departure from Jessica's Law to the grids. The same factors can be made to grant further down to 360 months, as the Court did. I think it would be a severe injustice to this young man to penalize him further because of the actions of his court-appointed counsel or because the appellate defender chose to make such an argument in front of the appellate court.

....

"THE COURT: I'm just kind of curious as to why the appellate public defender would argue that

...