Appeal on question reserved does not effect sentence

Michael P. Whalen won in State v. Berreth, No. 99,937 (Kan. April 6, 2012), reversing the previous imposition of a higher sentence after the state filed an appeal. The timeline is this case is convoluted to say the least (it takes up 11 pages of a 42 page opinion). Short story: Mr. Berreth was convicted and sentenced to 254 months in prison, which was affirmed in 1997. In 2004, Mr. Berreth started some post-conviction proceedings attacking one of his convictions as multiplitous--the district court agreed and reduced the sentence to 192 months. The state appealed. On appeal, the COA held that the sentence was improperly reduced and remanded for reimposition of the original sentence. The KSC denied review of that decision. As a result, Mr. Berreth was returned from postrelease supervision to prison. One big question in the current case was: what type of appeal was that? If it was an appeal from a habeas ruling (under K.S.A. 60-1507), the appellate court would have jurisdiction and could remand the habeas order. If it was an appeal from a question reserved, any appellate decision should not effect the sentence. The KSC ultimately held that the state had pretty specifically said that the appeal was from a question reserved in its notice of appeal and docketing statement and, therefore, held that the COA in the first appeal had improperly recharacterized the appeal as a habeas appeal. The KSC also clarified that, despite some previous published cases in which it had remanded for resentencing on appeals from questions reserved, an appeal on a question reserved cannot effect the defendant:

We reemphasize our rule to keep future courts from straying from it. An appellate court's answer to a question reserved by the State has no effect on the criminal defendant in the underlying case.

So two big points: (1) state is bound by its election of avenue for appeal and (2) an appellate court cannot vacate a sentence in an appeal on a question reserved. It's nice to have both of of those points clarified.