Plea agreement precluded later charges

Patrick H. Dunn won in State v. Hutchens, No. 107,457 (Kan. App. April 12, 2013)(unpublished) affirming Judge Noland's dismissal order regarding a Crawford County criminal sodomy prosecution.  Judge Noland dismissed the charges pursuant to a previous plea agreement in which Mr. Hutchens had pleaded guilty to amended charges of sexual exploitation of a child and aggravated endangering of a child and in exchange the state also agreed to dismiss with prejudice "any other charge related to these facts that is not the subject of a plea under this Agreement."  After the state filed additional criminal sodomy charges, Judge Noland dismissed under this provision of the plea agreement.

The COA noted that, while it is not bound by a district court's interpretation of a written plea agreement, it agreed with Judge Noland in this case:

The State argues the district court has misinterpreted the language of the plea agreement in case No.2010–CR–113G. First, the State contends the plea agreement applied to charges “related to these facts” and the court improperly expanded the words of the plea agreement to mean “related to this investigation.” Second, the facts of the plea agreement involved K.G. and M.G. and not W.G.—W.G. was not a victim in case No.2010–CR–113G. Third, the State insists that although W.G. was part of the investigation in case No.2010–CR–l 13G, he was not a victim and did not disclose to authorities that Hutchens sexually abused him until after the plea agreement was entered. The State asks us to find that the plea agreement did not give Hutchens immunity for any other crime he committed other than against K.G. and M.G.

The criminal sodomy charges in the present case arose out of the same investigation and the same facts as those in case No.2010–CR–113G. We find the State's argument on the words “facts” and “investigation” to be one of semantics and, in this case, words without a difference. W.G. was interviewed multiple times during the investigation of the sexual abuse allegations involving his brothers K.G. and M.G. Knowledge of possible sexual abuse against W.G. was known by the State at the time of the plea agreement. The State had a witness who saw Hutchens on top of W.G. in Hutchens' bed. The fact that W.G. denied that Hutchens had sexually abused him at that time does not the negate the fact that allegations of sexual abuse against Hutchens involving W.G. were a possibility. The facts surrounding the sexual abuse against W.G. were discovered during the same time the facts surrounding sexual abuse of K.G. and M.G. arose. The State chose not to pursue charges involving W.G. most likely because W.G. had denied the allegations. The State was aware of the facts surrounding the abuse of W.G. at the time it entered the plea in case No.2010–CR–113G.

[Update: the state did not file a PR and the mandate issued on May 16, 2013.]