The KSC held that the district court erred by holding the depature trial after Mr. Horn had waived his trial jury. In reaching this conclusion, the KSC had to "dissect" several sentencing statutes:
As Horn points out, K.S.A. 21-4718(b)(4) appears to contemplate the use of an existing trial jury in the separate departure sentence proceeding. The provision begins by declaring that a separate departure sentence proceeding "shall be conducted by the court before the trial jury as soon as practicable."
. . . .
The next sentence clarifies that the jury for the upward durational departure sentence proceeding may be waived in the same manner as provided for the waiver of the trial jury. Then, the last sentence of K.S.A. 21-4718(b)(4) provides explicit directions: "If the jury at the upward durational departure sentence proceeding has been waived or the trial jury has been waived, the upward durational departure sentence proceeding shall be conducted by the court."
It is difficult to conceive of any language which would have made the provision any more clear and unambiguous that a defendant's waiver of his or her right to a jury trial on the issue of guilt mandates that the court, not a jury, will hear the evidence and make the factual findings on the existence of the asserted sentence-enhancing factor. The last two sentences of K.S.A. 21-4718(b)(4) separately refer to "the jury at the upward durational departure sentence proceeding" and "the trial jury." That express distinction only makes sense if "trial jury" was intended to mean a jury that is functioning to determine the defendant's guilt, as opposed to a jury that
is performing a post-conviction function with respect to a departure.
. . . .
On appeal, the State has apparently now come to the same conclusion on the meaning of the statute. After emphasizing essentially the same statutory language in K.S.A. 21-4718(b)(4) as we have highlighted above, the State declares in its brief that "[t]he upward durational departure sentence proceeding should have been conducted before the court." However, the State argues that the use of a jury in this case does not require reversal because Horn invited the error and because Horn received more process than that to which he was due. While such arguments are seductive, the fact remains that the district court did not employ the explicit procedure for upward durational departure sentence proceedings mandated by the legislature. Although the specific holding in Kessler was that after the statutory procedure for imposing upward durational departure sentences was declared unconstitutional, the district court was left with no authority to impose such a sentence, the opinion also clarified that "[a] district court's authority to impose sentence is controlled by statute." Accordingly, the employment of a sentencing procedure which does not comply with the applicable statute must be deemed unauthorized and erroneous.
Furthermore, because Mr. Horn did not validly waive his right to a jury trial on the departure factors, the KSC holds that the remedy in this case is resentencing without a depature:
To summarize, if a defendant waives a trial jury by pleading guilty to the criminal offense and the district court has accepted the plea and the trial jury waiver, K.S.A. 21-4718(b)(4) directs that an upward durational departure sentence proceeding is to be conducted by the court, not a jury. However, if the defendant has not waived his or her right to a jury for the upward durational departure sentence proceeding, a court conducted departure proceeding violates the constitutional mandates of Apprendi and Gould. A waiver of the trial jury, standing alone, does not effectively waive the defendant's right to have a jury for the upward durational departure
Does this mean that if a defendant gets a reversal on an upward durational depature trial on evidentiary or instructional grounds, remedy is vacation of upward departure, not new trial?
There were a lot of other issues raised related to the upward durational depature trial, but because the KSC had vacated the upward depature, it did not need to reach them.