Prosecutorial error claims at nonjury proceedings

Caroline M. Zuschek won in State v. Wilson, No. 114,567 (Kan. December 14, 2018), obtaining a new hearing related to a motion to correct illegal sentence in a Reno County aggravated indecent liberties with a child prosecution. After Mr. Wilson's probation had been revoked, the state moved to correct an illegal sentence seeking imposition of lifetime postrelease supervision. Mr. Wilson responded in part that lifetime postrelease supervision amounted to cruel or unusual punishment prohibited by the Kansas Constitution.

At the hearing on the motion to correct illegal sentence, the prosecutor made several comments that the COA and KSC later held to be improper particularly related to the nature of the underlying offense. The question in the appeal was (1) whether such comments could constitute a legal claim of prosecutorial error at a nonjury proceeding like a motion to correct illegal sentence and (2) whether the comments in the instant case resulted in an unfair proceeding.

On the first question, the KSC held that the Due Process Clause right to a fair proceeding extends beyond just a fair jury trial:

Admittedly, [previous prosecutorial error caselaw] is cast in terms of the prosecutor's efforts to obtain a "conviction," but this does not confine prosecutorial error to a trial's guilt phase. One's fair trial right is equally protected in a penalty phase. So to the extent our caselaw typically describes prosecutorial error in the guilt-phase context when obtaining a "conviction" or a "verdict," we must remember our concern is comporting with the due process right to a fair trial. Those concerns remain for sentencings. 

With regard to what test should apply, the KSC held that its general analysis in State v. Sherman should apply in nonjury proceedings as well as jury trials. Using this test, the KSC held that the prosecutor made comments that were not supported by evidence, which met the first prong of the Sherman test. The KSC agreed with the COA that the misstatements related to the nature of the underlying crime appeared to have persuaded the district court and therefore could not be harmless. But the KSC noted that the effect of such claims may be difficult to discern in later cases, but reversed and remanded for further hearing on Mr. Wilson's claim that lifetime postrelease was grossly disproportionate in his case.