District court must follow appellate mandate

Korey A. Kaul won in State v. Pritchard, No. 110,720 (Kan. App. July 18, 2014)(unpublished), returning a Reno County aggravated endangerment case to the district court for the third time for resentencing.  Mr. Pritchard's case had been before the COA in 2010 and 2011.  In 2010, the COA reversed an upward durational depature because of failure to disclose evidence of the aggravating factor.  The district court resentenced Mr. Pritchard and, relying on another aggravating factor, gave him the same sentence.  In 2011, the COA held that, because the district court had not actually doubled the base sentence, the sentence imposed violated the double-rule.  As a result, the COA reversed and remanded  "with instructions to adhere to K.S.A. 21–4720(b)(4) and limit Pritchard's total sentence to twice his base sentence, additionally warning that the holding from Guder prevented modification of sentences that were only vacated on appeal without reversal of the underlying conviction."

On remand, the district court doubled the base sentence and imposed a sentence slightly shorter than the original sentence, but still reflecting an upward durational departure.  The COA held that the district court had failed to follow its mandate from the second appeal:

Although, the district court attempted to impose additional prison time, by departing, its error in the original sentence, as found by the prior panel, precluded the subsequent attempt to impose a departure sentence. Pritchard II explicitly states Guder applies to this case, as Pritchard's underlying convictions were never reversed. While another panel's decision is not binding on this panel, the doctrine of the law of the case indicates the current panel should not reopen an area of litigation that has been thoroughly considered within the same case. The decision of the panel in Pritchard II that at Pritchard's original sentencing hearing the district court failed to impose a proper departure sentence is the law of this case regardless of whether we agree with the panel's analysis.

Based on the mandate of Pritchard II and the supporting caselaw of Guder, the district court's departure sentence was in error because the original sentencing court failed to properly impose an upward departure. While the total sentence length did not violate K.S.A. 21–4720(b)(4), the departure itself was an illegal modification on remand.  The case is remanded to the district court with instructions to impose grid sentences, as it has previously done, to be run concurrently or consecutively.

[Update: the state did not file a PR and the mandate issued on August 24, 2014.]