Failure to waive right to jury trial on aggravating factors

Corrine Gunning won in State v. Bennett, No. 111,362 (Kan. App. April 3, 2015), obtaining reversal of an upward durational departure sentence in a Sedgwick County second-degree murder prosecution.  Ms. Bennett had entered into a plea agreement and agreed upon a 300-month upward durational departure. On appeal, Ms. Bennett argued that because the district court never obtained a waiver of her right to a jury trial on aggravating factors that would allow an upward durational departure.  The state argued that Ms. Bennett had waived her right to appeal her sentence pursuant to the plea agreement.  The COA disagreed, holding (1) that Ms. Bennett was not appealing her sentence but was appealing the sentencing procedure, which is a distinction with a jurisdictional difference and (2) that in any case the plea agreement was ambiguous with regard to an appeal waiver.  Specifically on the last point, the plea agreement contained some language regarding waiver, but also included a lot of standard language stating that Ms. Bennett still had limited rights to appeal. For both reasons, the COA held that Ms. Bennett had not waiver her right to appeal.

On the merits, the COA had little trouble finding that the sentence imposed violated Apprendi.  Without either a jury finding or waiver of a jury finding, the maximum sentence that could be imposed is the presumptive sentence. As a result, the COA remanded for resentencing.

[Update: the state filed a PR on April 17, 2015.]

[Further update: the KSC denied the state's PR and the mandate issued on December 31, 2015.]