State v. Wilson

431 P.3d 841

STATE of Kansas, Appellee,

v.Grant WILSON, Appellant.

No. 114,567

Supreme Court of Kansas.

Opinion filed December 14, 2018

Caroline M. Zuschek, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Keith E. Schroeder, district attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by Biles, J.:

Grant Wilson appeals a modification made to his criminal sentence. He contends the prosecutor misstated to the sentencing court the facts underlying his conviction and the facts of a court case cited by Wilson as legal authority against the modification. A divided Court of Appeals panel could not agree on the errors or the appropriate standard of review to assess any resulting prejudice.

State v. Wilson , No. 114567, 2016 WL 7324427 (Kan. App. 2016) (unpublished opinion). We granted review to consider those questions and now remand the case to the district court for a new hearing on the State's motion to correct an illegal sentence.

We hold prosecutorial error may occur during a sentencing proceeding before a judge. We also hold the analytical framework from State v. Sherman , 305 Kan. 88, 378 P.3d 1060 (2016), applies in both the guilt and penalty phases of any trial—whether before a jury or judge. And based on the Sherman test, we hold there was reversible error at Wilson's sentencing hearing.

FACTUAL AND PROCEDURAL BACKGROUND

In 2007, Grant Wilson pled guilty to aggravated indecent solicitation of a child. He later failed to meet his probation terms and was eventually ordered to serve his underlying prison sentence of 32 months. In 2015, the State moved to correct an illegal sentence, arguing the district court erred by not imposing lifetime postrelease supervision as part of Wilson's original sentence. At the hearing on that motion, Wilson claimed lifetime supervision was grossly disproportionate to his offense, amounting to cruel or unusual punishment prohibited by Section 9 of the Kansas Constitution Bill of Rights. The court rejected Wilson's argument based on State v. Freeman , 223 Kan. 362, 367, 574 P.2d 950 (1978), and granted the State's motion.

On appeal, Wilson raised two issues: (1) whether the prosecutor deprived him of a fair sentencing hearing by misstating facts in his case and those in an unpublished Court of Appeals decision cited as authority for Wilson's Freeman claim; and (2) whether the district court erred by rejecting his disproportionality argument under Freeman . The first claim intersects with the second to the extent Wilson argues the prosecutor's comments denied him a fair hearing on the following Freeman factor:

"The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment." Freeman , 223 Kan. at 367, 574 P.2d 950.

Wilson contends this factor supported his disproportionality argument because (1) the 13-year-old victim snuck out of her house and joined some high school students for a party where the crime occurred; (2) Wilson had just turned 18 years old and lacked the ability to make a "good decision" because of his age; (3) Wilson acknowledged he made "a terrible mistake" in having sex with the underage victim; (4) Wilson worked at his father's sprinkler installation business after getting out of prison and had a child he was trying to parent; and (5) there was little danger of Wilson reoffending.

The State set the stage for this prosecutorial error claim by replying to Wilson's arguments during the following colloquy:

"THE COURT: ... so we now get to Mr. Wilson's particular crime and I know I've had other cases in which there was violence involved.

"There does not appear that [violence] happened in this case but Mr. Wilson was certainly of the appropriate age to be held responsible and the fact that he didn't, you know, he put himself in a situation. I think there was drinking involved, is that right, [Prosecutor]?

"[PROSECUTOR]: Judge, actually that's one reason, if I can address the Court just briefly about those facts, with Mr. Wilson, he raped and sodomized a 13 year old girl. He digitally raped her and he sodomized her . Those are extreme crimes of violence. Your Honor, the facts of this case, the State charged only the aggravated indecent solicitation and agreed to a border box finding to place him on Community Corrections. He was placed on Community Corrections, violated the terms of his Community Corrections and was sentenced by the Court to go to Labette. He went to Labette, failed to complete Labette and his prison sentence was executed so ... he's clearly shown he's not necessarily amenable to do, it's a crime of violence and that distinguishes itself completely from [ State v. ] Proctor [No. 104,697, 2013 WL 6726286 (Kan. App. 2013) (unpublished opinion),] which involved a police officer impersonating himself to be a child and the defendant showing up at the house to meet the child .

"THE COURT: All right. I saw back here when I was doing a bond condition that he had a rape and aggravated sodomy [at] that point in time back in 26 February, 2007. I'm not satisfied that, I am satisfied rather that the facts and circumstances of this crime do not cry out that this would be an unconstitutional sanction so I'm going to grant the State's motion. I find that the sentence was illegal; that the Court is required to sentence Mr. Wilson to lifetime post release so I pronounce lifetime post release." (Emphases added.)

On appeal, the State suggested the digital rape and sodomy comments were based on police reports, but those reports were not in the appellate record. The State acknowledged reciting the wrong facts about the Proctor decision.

The panel majority's holdings and the dissent's arguments

The panel majority first considered whether prosecutorial misconduct can occur in the context of a hearing on a motion to correct an illegal sentence. The majority concluded it could, so appellate review was proper. It cited other Court of Appeals decisions that had considered similar claims arising during hearings before a judge. Wilson , 2016 WL 7324427, at *4 (discussing State v. Serrano-Garcia , No. 103651, 2011 WL 4357804, at *3-4 [Kan. App. 2011] [unpublished opinion], State v. Roland , No. 101879, 2010 WL 1078454, at *1-3 [Kan. App. 2010] [unpublished opinion], State v. Clelland , No. 93001, 2005 WL 1805250, at *3-5 [Kan. App. 2005] [unpublished opinion] ).

The majority then considered whether to use the modified two-step analysis adopted in Sherman but ultimately decided to apply the "old" pre- Sherman test. It did so because Sherman was decided after the panel's oral arguments, which meant the parties had not had an opportunity to brief or argue its possible impact. Even so, the majority observed "application of the new framework would not make a difference in the outcome." 2016 WL 7324427, at *4.

Moving to the merits, the majority held the prosecutor's comments that Wilson digitally raped and sodomized a child were unsupported by the record. It observed: "The factual basis for the plea, accepted by the court, consisted solely of Wilson's admission that he ‘had sex with a minor under the age of 14 years old.’ " 2016 WL 7324427, at *5. No other evidence was presented.

As to the prosecutor's misstatement about the facts in Proctor , which the State conceded, the majority noted: " Proctor involved no impersonation and no police officer. Instead, Proctor was a 19-year-old male who took advantage of a 12-year-old boy." Wilson , 2016 WL 7324427, at *6 ; see also Proctor , 2013 WL 6726286, at *2 (Proctor knew the victim and lived with him for several months while committing the crimes). The majority held: "The prosecutor thus invited the district court to rely on inaccurate facts in Wilson's case and to compare them to inaccurate facts in Proctor's case." 2016 WL 7324427, at *6.

It then concluded these misstatements were: (1) gross and flagrant misconduct because they were planned and violated well-established rules; (2) motived by ill will since they were "volunteered in response to the court's narrow question to the prosecutor whether drinking was involved—a question that went unanswered"; and (3) may have affected the district court's decision to impose lifetime postrelease supervision. 2016 WL 7324427, at *7-8 ("In the context of this case, we determine the likely effect not on the verdict reached by the jurors but on the decision made by the district court."). The majority held those improper comments were prejudicial and denied Wilson a fair hearing. 2016 WL 7324427, at *9.

The dissent viewed the circumstances differently. Judge Michael Buser argued the prosecutor's assertions about digital rape and sodomy were supported by: (1) the standard arrest report indicating Wilson was arrested for rape and aggravated sodomy of a child under 14 years old; (2) an entry from the district court's docket sheet memorializing a hearing held on the same day the arrest report was filed, which states " ‘Probable cause found’ "; and (3) the appearance bond signed by the judge, which noted Wilson was charged with "RAPE < 14, AGG. SODOMY." 2016 WL 7324427, at *13.

Judge Buser insisted the first comment was not prosecutorial error because "[i]n sentencing matters ..., district court judges rely on the presentence investigation (PSI) report. In this case, the PSI contained facts and information which also supported [the challenged factual assertion]." 2016 WL 7324427, at *15. And, the dissent continued, while none of the listed pieces of the record explicitly stated Wilson "digitally" raped and sodomized the victim, this information was encompassed by the statute because "Kansas law defines sexual...