Can't increase sentence because of successful appeal

 Carol Longenecker Schmidt and Kai Tate Mann won in State v. Brown, No. 113,751 (Kan. March 1, 2019), obtaining a new sentencing hearing in a Brown County aggravated criminal sodomy prosecution. Mr. Brown had originally received a 360-month prison sentence after pleading no contest. This sentence required two departures: one from the grid and one from the presumptive sentencing range on the grid. The original sentence was sent aside by the COA because the district court had failed to state reasons for the second departure. The district court heard statements from the victim's family that the appeal and resentencing resulting in additional trauma for the victim. The district court again departed to the grid and from the presumptive sentencing range, but imposed a 372-month prison sentence. The district court was explicitly critical of the decision to appeal the first sentence.

On appeal, Mr. Brown argued that the increased sentence violated the Due Process Clause's prohibition on vindictive sentencing. The KSC agreed:

Even if we were reluctant to apply a presumption of vindictiveness in this case, we would still be compelled to grant Brown the relief he requests on the necessarily undisputed record before us. Actual vindictiveness, in the legal sense of the phrase, infected Brown's resentencing. Although we are confident the district judge bore no personal ill will toward Brown, subjective malevolence is not required. Under the United States Supreme Court decisions and our [State v. Rinck, 260 Kan. 634, 923 P.2d 67 (1996)] case, it is enough that Brown was deliberately penalized for the exercise of a legal right to appeal and his success in that effort.

The district judge, while stating substantial and compelling reasons for both departures, failed to state a reason for giving Brown a 12-month increase. This silence is punctuated with his expression of sympathy for the mother of the victim and his explicit acknowledgement that he understood what she was telling him. The discussion of Brown's successful appeal and the impact it had on the victim and her family is extensive, and the victim's mother explicitly asked for more prison time to be added to Brown's sentence because of his appeal and the additional pain and suffering that it caused. The prosecutor, apparently unaware that he was leading the court into error under [North Carolina v. Pearce, 395 U.S. 711 (1969)] and its progeny, echoed this request, saying "some additional time is warranted" after blaming Brown for bringing the parties back to court. As Judge Buser accurately pointed out, Brown's successful appeal is the only reason articulated for the increase in prison time.

The KSC concluded that "[b]ecause it is clear that 12 months of Brown's prison term is an artifact of his success on his first appeal, we vacate his sentence."