Whisler v. State

• Decision Date: 14 December 2001
• Docket Number: No. 86,365.,86,365.
• Citation: Whisler v. State, 36 P.3d 290, 272 Kan. 864 (Kan. 2001)
• Parties: RALPH KELLY WHISLER, Appellant, v. STATE OF KANSAS, Appellee.
• Court: Kansas Supreme Court

272 Kan. 864

36 P.3d 290

RALPH KELLY WHISLER, Appellant, v.STATE OF KANSAS, Appellee.

No. 86,365.

Supreme Court of Kansas.

Opinion filed December 14, 2001.

Nathan B. Webb, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the briefs for appellant.

Jared S. Maag, assistant attorney general, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

Ralph Kelly Whisler was convicted of rape at the conclusion of a jury trial in 1995.Whisler's conviction and sentence were affirmed by the Court of Appeals in an unpublished opinion filed March 7, 1997.In October 2000, Whisler filed a K.S.A. 60-1507 motion in the district court where he was sentenced seeking relief based on Apprendi v. New Jersey,530 U.S. 466, 147 L. Ed.2d 435, 120 S. Ct. 2348(2000).He appeals the district court's denial of his request for relief.The case was transferred from the Court of Appeals on Whisler's motion.

The sole issue raised by this appeal is whether Apprendi is to be applied retroactively to Whisler's sentence.Whisler was convicted of raping D.T., a 43-year-old mentally retarded woman.At sentencing, the trial court stated that Whisler had been employed by Southwest Development Services Incorporated"with the job of helping to care for and supervise mentally disabled adults who ... are not capable of living and working on their own."D.T. was an adult with a mental capacity of a 5-yearold child.The trial court viewed Whisler's relationship with D.T. as a fiduciary relationship in that he was charged with her care and supervision.

The presumptive guidelines sentence for Whisler's conviction of rape was a prison term of 86 to 77 months and a post-release supervision duration of 24 months.Upon the State's motion for imposition of a departure sentence, the trial court sentenced Whisler to a prison term of 120 months and a post-release supervision term of 60 months.The upward departure was based on the trial court's findings that there was a fiduciary relationship between Whisler and D.T. and that D.T. was particularly vulnerable due to mental retardation, which was well known to Whisler.The reasons for departure were listed as aggravating factors in K.S.A. 1994 Supp. 21-4716(b)(2)(A) and (D).

In October 2000, Whisler filed a K.S.A. 60-1507 motion in the district court where he was sentenced seeking relief based on Apprendi.He asked that his sentence be vacated and that he be resentenced in accord with Apprendi.Whisler contended that his sentence is illegal under Apprendi because the factors on which the trial court based its departure upward from the presumptive guidelines sentence were not found by a jury beyond a reasonable doubt.In Apprendi,the Supreme Court stated: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."530 U.S. at 490.The district court's findings relative to Whisler's request for 60-1507 relief are stated as follows in the Memorandum Decision & Order Denying Request of Defendant:

"1.The plaintiff contends that the factors relied upon by the court to justify an upward departure were not presented to a jury or finder of fact and thus determined to be present beyond a reasonable doubt.The plaintiff cites Apprendi v. New Jersey,530 U. S. 466(2000).

"2.In the criminal case involving the plaintiff, Finney CountyCase No. 94 CR 590, [t]he factors used by the court, the vulnerability of the victim and a fiduciary relationship, were presented to the jury and so found by the jury to be present.See the decision of the Court of [A]ppeals filed March 7, 1997, Case No. 74, 336.

"3.Even if Apprendi, supra, is to be given retroactive application it does not apply in this particular case.

"4.On the face of the plaintiff's petition and the files and records of the court, the plaintiff is not entitled to relief.

"5.The plaintiff's request for relief pursuant to K.S.A. 60-1507 is denied."

The briefs of the parties to this appeal assume that the issue is whether Apprendi is to be applied retroactively to K.S.A. 60-1507petitions for collateral review.The district court concluded that the sentencing rule announced in Apprendi was not violated in this case because the factors on which the departure sentence were based were found by the jury beyond a reasonable doubt.Examination of the record shows that the jury did not find that the State proved beyond a reasonable doubt that the victim was particularly vulnerable due to mental retardation, nor does the record show that the jury made any finding of a fiduciary relationship between defendant and victim.

The jury was instructed that the State could prove rape by proving beyond a reasonable doubt either that D.T. was incapable of giving consent due to her mental deficiency or that defendant raped D.T. without her consent when she was overcome by force or fear.The verdict form shows that the jury found the defendant"guilty of rape on both theories."Thus, there is no doubt that the jury found that D.T. was unable to consent, but that does not equate to the jury finding she was vulnerable for the purpose of upward departure.Although "unable to consent" and "vulnerability" are somewhat alike, they are not the same.The jury did not find the victim to be vulnerable.On direct appeal, the Court of Appeals rejected Whisler's complaints about the same factors supporting the conviction and the upward sentencing departure.The Court of Appeals agreed with Whisler that the reduced mental capacity factor was inherent in the offense, but concluded that Whisler's argument did not affect the sentence: "The jury convicted Whisler under both theories.D.T.'s mental deficiency was not an element of rape under the alternative theory that she was overcome by force or fear.Therefore, the trial court was justified in using that factor as a reason for departure."This court denied review of the decision of the Court of Appeals.262 Kan. 968.

We conclude that if Apprendi is retroactively applied, Whisler would be entitled to relief as to his sentence.We will turn first to State v. Gould,271 Kan. 394, 23 P.3d 801(2001).In Gould,the court considered whether Apprendi affected K.S.A. 2000 Supp. 21-4716, which requires the sentencing judge to impose the presumptive guidelines sentence unless the judge finds substantial and compelling reasons to impose a departure.The court stated that Apprendi dictated the conclusion that the Kansas statutory scheme for imposing upward departure sentences "violates the due process and jury trial rights contained in the Sixth and Fourteenth Amendments to the United States Constitution."271 Kan. at 414.

The court expressly addressed the question of retroactivity that inevitably would be raised by its invalidating the upward departure provisions of K.S.A. 2000 Supp. 21-4716:

"Our holding on the constitutionality of upward departures under the KSGA has no retroactive application to cases final as of June 26, 2000, the date Apprendi was decided.However, the new constitutional sentencing rule established by Apprendi must be applied here and in all cases pending on direct appeal or which are not yet final or which arose after June 26, 2000.SeeState v. Hood,242 Kan. 115, 117, 744 P.2d 816(1987)."271 Kan. at 414.

The Court of Appeals' opinion in this case was filed on March 7, 1997.Review was denied and the mandate was issued on April 30, 1997.262 Kan. 968.

According to the court's pronouncement in Gould, the new constitutional sentencing rule established by Apprendi has no application in this case.Despite the clear statement in Gould, Whisler contends that Apprendi applies to his sentence because he raised the issue in his direct appeal and because federal case law requires the new sentencing rule to be applied retroactively.

Whisler states that in his direct appeal he raised the issue of whether the departure factors identified by the sentencing judge were an improper basis for departure because they were elements of the crime.He contends that the issue on direct appeal is sufficiently related to the Apprendi rule so that he preserved the issue for further review.There is no merit to his contention.On direct appeal, he argued that the departure factors already had been considered by the jury in reaching a verdict of guilty and therefore should not be reconsidered by the trial court in determining sentence.As the Court of Appeals stated, there were "elements of double jeopardy flowing through" Whisler's argument.His argument was that the factors could not be considered for both conviction and sentence.His argument was not that the jury had to find that the factors had been proved beyond reasonable doubt in order for them to be considered for sentencing.

Whisler spurns the efficacy of the court's statement regarding retroactivity in Gould on the ground that the pronouncement is dicta.He views Kansas case law as irrelevant in that it centers on the prohibition of ex post facto laws.To illustrate his point he cites State v. Billington,24 Kan. App.2d 759, 761, 953 P.2d 1059(1998), which involved the question of whether an amended statute operated retrospectively or prospectively.Whisler ignored Kansas cases involving overruling decisions rather than new legislation.The court's general rule with regard to application of an overruling decision has been stated as applying the decision "retroactively to all similar cases pending as of the date of the overruling decision, regardless of when the cause of action accrued."State v. Waterberry,248 Kan. 169, 172, 804 P.2d 1000(1991)(expanding its own restriction of the rule of State v. Hall,246 Kan. 728, 793 P.2d 737(1990), to include cases pending in Kansas courts as of May 31, 1990, the date of the Hall opinion)....