Another upward durational departure set aside

Heather Cessna and Sarah Morrison won in State v. Duncan, No. 99,463 (Kan. Nov. 19, 2010), reversing imposition of an upward durational departure sentence in a Sedgwick County aggravated battery prosecution. Mr. Duncan had pleaded guilty to severity level seven agg battery, including a joint recommendation for an upward durational departure sentence, which the district court imposed. After probation revocation, Mr. Duncan challenged the departure sentence based on failure to validly waive his right to have a jury find aggravating factors beyond a reasonable doubt. The KSC agreed:

In other contexts, we have held that to be constitutionally valid, a waiver of rights in guilty or no contest pleas must be voluntary, knowing, and intelligent acts performed with sufficient knowledge of the relevant circumstances and likely consequences. Recently, this court held that to satisfy the Due Process Clause a waiver must be an intentional abandonment or relinquishment of a known right or privilege. State v. Copes, 290 Kan. 209, 218, 224 P.3d 571 (2010). As such, to waive the right to a jury in an upward durational departure proceeding, the defendant must do more than consent to the sentence. Duncan needed to understand—and the record needs to demonstrate—what specific right or rights he was waiving. An examination of the plea hearing proceedings relied upon by the Court of Appeals, as well as the written plea agreement, are required to determine whether the waiver satisfied these criteria.

At the plea hearing, the district court informed Duncan he was relinquishing his right to a trial on his guilt, his right to raise any defenses to the charge, his right to have the State prove each offense, his right to compel and cross-examine witness testimony, and his right to testify in his own defense. Regarding sentencing, the district court informed him of the potential range of sentences that could be imposed and that the court was not bound by the plea agreement and could impose any legal sentence deemed appropriate. But the district court did not advise Duncan that he had a right to a jury determination of the aggravating sentencing factors.

Similarly, the written plea agreement only informed Duncan of his right to have his guilt or innocence determined by a jury and the requirement that the State prove his guilt beyond a reasonable doubt on each element of the charge. Neither of these provisions informed Duncan he had a right to a jury determination of the aggravating sentencing factors. Indeed, under even the most generous reading of the plea agreement, at best, suggests it is ambiguous as to whether the defendant was waiving both the jury determination of guilt and the jury determination of aggravating factors. But if we were to find such ambiguity, it would not matter. This court interprets plea agreements under the same standard applied to ambiguous statutes, so that any uncertain language is strictly construed in the defendant's favor. Under this standard, the plea agreement's language would not be enough to constitute a waiver as written.

I hope the KSC will apply this same kind of scrutiny to other waiver situations as well.