Sunday, April 26, 2015

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.]

Saturday, April 04, 2015

Memo filed in compliance with court order granting leave is timely

Janine Cox won in Wahl v. State, No. 107,934 (Kan. March 13, 2015), obtaining reversal and remand for further proceedings in a Crawford County state habeas proceeding.  The district court had held that Mr. Wahl had waived his right to seek habeas relief as part of his plea bargain.  The COA had held that the district court's finding was incorrect, but that Mr. Wahl's motion was untimely.  The KSC agreed that Mr. Wahl did not waive his right to make a claim of ineffective assistance of counsel, noting that while the plea agreement did purport to preclude collateral attacks, it made a specific exception for ineffective assistance of counsel claims.  The KSC applied the mailbox rule and held that Mr. Wahl's motion was timely.  The KSC went on to hold that Mr. Wahl's memorandum in support filed about a month after the original filing was in compliance with the district court's granting of leave to file such a memorandum and, therefore, did not constitute an untimely amendment:
But Wahl's supporting memorandum was not an attempted amendment to his initial motion. So Pabst's relation-back test for timeliness is off target. Rather, the supporting memorandum essentially is supplying the entire legal argument section missing from Wahl's initial 60-1507 motion. And because the district court explicitly granted Wahl leave to file that supporting memorandum within 30 days, the panel erred by concluding that the district court could not have considered that document when analyzing Wahl's claim. On the contrary, the district court should have considered the supporting memorandum—whose filing the court allowed—before it disposed of Wahl's motion. Accordingly, the panel erred by affirming the district court's summary denial based on the panel's conclusion that Wahl's supporting memorandum was untimely.
As a result, the case was sent back to the district court for proper consideration of Mr. Wahl's claims.