Cunningham in Kansas

If you don't know about Cunningham v. California, you obviously haven't read Professor Berman's Sentencing Law and Policy blog or any other blog about criminal law or the SCOTUS lately. If so, please read both the opinion and commentary and then come back to this blog.

. . . . Okay, everybody read them?

The question for us is, does this case matter in Kansas? We already won the battle applying Apprendi to our sentencing guidelines in State v. Gould way back in 2001, years before Blakely v. Washington. (Thanks to Kirk Redmond really being on top of Apprendi-type issue before Apprendi was even decided and thanks to Debra Wilson's great KSC argument). That's why the legislature amended our upward durational departure scheme in 2002.

But there may be some remaining issues. [Thanks to Patrick Lewis, Michael McCullough, Carol Cline and the gang at the Olathe PD office for calling me about this.] Even within the existing "presumptive" grid-boxes, there are aggravated, mitigated, and "usual" sentences. And on the high-end, the difference can be several years in prison. The identical provisions in K.S.A. 21-4704(e)(1) and K.S.A. 21-4705(d)(1) cut both ways:

The sentencing court has discretion to sentence at any place within the sentencing guideline range. The sentencing judge shall select the center of the range in the usual case and reserve the upper and lower limits for aggravating and mitigating circumstances insufficient to warrant a departure.

By mandating that the judge "shall select the center of the range in the usual case" would seem to imply that a judge can only exceed the center sentence if he or she finds facts that take the case outside of the "usual case." In that regard, it seems quite similar to Cunningham.

So think about citing Cunningham in any case where judge/prosecutor is thinking about an aggravated sentence within a box. Particularly when you are dealing with high severity levels/criminal history, you have little to lose and maybe a few years to gain.

Chuck Cavanee also had this idea (which I know has been litigated in other states):

Another angle is the concurrent/consecutive issue. The statute requires concurrent, but if judge makes certain findings at a preponderance level he/she can impose consecutive sentences. This seems to me to violate Cunningham as well. Make those objections so the issue can be raised in the appeal courts.

And the other major importance of Cunningham is just the fact that Apprendi lives and maybe is even stronger. We have been continuing to litigate remaining Apprendi issues surrounding hard-fifty cases and criminal history issues (see here and here). Maybe someday, the SCOTUS will finally resolve these important issues.

Bottom line--I expect that there will be more Apprendi litigation in Kansas, so keep making those objections. Any other creative Apprendi type issues being litigated out there in the real world?