Other Apprendi/Alleyne issues

Carl blogged (here) about Alleyne and our case which was recently GVR'd from the SCOTUS. As he noted, this case will likely have an impact on hard-50 sentencing in Kansas. But I thought I would mention a couple more places where Alleyne may breath some life into old issues. (I'm guessing there are many more, please feel free to comment).

First, you could argue that upward dispositional departures should be covered by Apprendi. The KSC rejected that claim shortly after Apprendi in a divided opinion in State v.Carr. In Carr, the majority suggested that, because probation was an act of grace, imposition of prison sentence did not increase a sentence. But Alleyne at least calls that result into question (if it was sound in the first place). Under the Kansas Sentencing Guidelines, a defendant must receive probation unless the district court makes additional findings. So it is difficult to reason that an imposed prison term is authorized by the jury's verdict. So if you have a case where the state is seeking an upward dispositional departure, you should object on Alleyne grounds. If the district court imposes the dispositional departure over your objection, you should appeal as soon as possible. We would need to take steps to try to stay the district court’s judgment as soon as possible (to avoid mootness). If the district court won’t stay the judgment, contact us and we can follow up with the appellate court.

Another possible application is certification for prosecution as an adult. The KSC rejected that claim in State v. Jones by reasoning that the certification decision did not result in a sentence enhancement, but merely determined which court would decide the case, juvenile or adult. The KSC later recognized that the practical differences (other than punishment) between the juvenile and adult systems have narrowed. In re L.M. ("proceedings under the KJJC fit within the meaning of the phrase "all prosecutions" as set forth in §10 of the Kansas Constitution Bill of Rights, and juveniles have a right to a jury trial under the Kansas Constitution"). In any case, Alleyne reiterates that the question should be: does the jury's verdict, by itself justify imposition of an adult sentence on a juvenile?  Because the answer is no, Alleyne arguably applies. So, if you are dealing with an adult certification case, you should object on Apprendi grounds at the time of certification and again at the time of adult sentencing.