Justice Rosen wants justice in plea agreements

In State v. Jackson, No. 106,184 (Kan. April 12, 2013), the KSC reversed a 310-month sentence in a Jessica's Law case based on the failure of the district court to follow the proper procedures when it departed to a guidelines sentence (Carol Longenecker Schmidt with the win).  The holding is consistent with the court's prior holdings on the subject, but Justice Rosen's concurring opinion in the case is worth a read.  And it is worth consideration by Kansas courts.

As he did in a previous case, Justice Rosen took issue with the current process of criminal defendants entering plea agreements without knowing what their criminal history is going to be at sentencing.  He stated in part in his concurring opinion:

I will simply refer to my concurring opinion in State v. Garcia, 295 Kan. 53, 64, 283 P.3d 165 (2012), and reiterate that, consistent with Kansas law and the heightened constitutional protections demanded in criminal proceedings, we should require a predetermined, accurate criminal history which is to be used at any subsequent sentencing hearing to be part of plea agreements. Not only does this give Jackson and similarly situated defendants the knowledge necessary to effectuate a knowing, voluntary, and intelligent waiver of the right to trial, it recognizes the significance that criminal history plays in the sentencing scheme and completely avoids the problems associated with the criminal history crapshoot currently employed in most plea proceedings. We simply should not continue to legitimize a plea negotiation process that undermines the presumption of fairness and dignity that serves to protect our liberty interests.

These words undoubtedly ring true for any defense attorney (or prosecutor) that has entered a plea agreement, only to see the defendant's criminal history at sentencing be higher than thought at the time of the plea.  This has happened to me.  And it's probably happened to most other attorneys who have handled more than a few felonies (it's also a big problem when PSIs are not completed until a few days before, or even the day of, sentencing - defendants are understandably frustrated not knowing what their sentencing range is going to be until the last minute, and it can cause attorneys to overlook legal objections that they would have caught with more prep time or to seek otherwise unnecessary continuances). 

But Kansas defenders might already possess the tools to make this happen.  The discovery statute, K.S.A. 22-3212, states as follows:

(h) For crimes committed on or after July 1, 1993, the prosecuting attorney shall provide all prior convictions of the defendant known to the prosecuting attorney that would affect the determination of the defendant's criminal history for purposes of sentencing under a presumptive sentencing guidelines system as provided in K.S.A. 21-4701 et seq., prior to their repeal, or the revised Kansas sentencing guidelines act, article 68 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto.

And as we know, K.S.A. 22-3212(f) states that "[d]iscovery under this section must be completed no later than 21 days after arraignment or at such reasonable later time as the court may permit."

In the Garcia concurrence, Justice Rosen pointed out that nothing prohibits courts from ordering the computation of criminal history before the plea agreement:

Following our statutorily derived procedure, a defendant's criminal history score is not calculated until after the defendant has been convicted. K.S.A. 21-4714 [now K.S.A. 21-6814]. This procedure makes some sense for completing a final presentence investigation report (PSI), because the PSI includes the current crime or crimes of conviction. But the delay in calculating the defendant's criminal history score for the purpose of completing a PSI compromises the underlying integrity and principles of fair and equitable justice by requiring defendants to waive their constitutional rights without a basic understanding of the consequences of their actions. This statute does not preclude the calculation of criminal history prior to the plea, nor should it be applied in a manner that supersedes the defendant's constitutional rights.

Consistent with Justice Rosen's concurrence, Kansas defenders should pressure the courts and prosecutors into providing accurate criminal history information prior to plea agreements (after all, K.S.A. 21-6703[b] requires prosecutor offices to assist with the PSI preparation).  Use the discovery statute to get the information from the prosecutor or file a motion asking the court court to order a preliminary PSI prior to any plea agreement.

Additionally, this is a systemic issue that can be addressed with the local courts.  Encourage district courts to adopt rules requiring preliminary PSIs to be conducted prior to a final plea hearing.  As in most things, a little extra preparation and knowledge leading up to an important decision usually makes things go a lot more smoothly.