State v. Duncan, 243 P.3d 338

Duncan severely beat another bar patron in 2004 and was charged with aggravated battery, a severity level 4 offense.
Plea agreement reduced the charge to a severity level 7 offense, to which Duncan pled guilty, affecting his sentencing range under the guideline grid.
The plea agreement contemplated an upward durational departure to 48 months paired with a downward dispositional departure to probation.
The agreement did not explicitly waive Duncan’s right to a jury determination of aggravating factors for the upward departure, and the district court did not advise him of this right at the plea hearing.
Duncan’s sentence included the upward 48-month departure; the district court relied on the plea-bargained amendment to justify the departure.
Upon probation revocation, Duncan appealed, challenging the legality of the upward departure due to lack of a constitutionally valid jury waiver; the Court of Appeals affirmed Duncan’s waiver.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Duncan validly waived the jury determination right	Duncan did not knowingly waive the right.	Duncan expressly or implicitly waived the right as part of the plea.	No valid waiver; remand for resentencing without upward departure.

Apprendi v. New Jersey, 530 U.S. 466 (2000) (any factor increasing punishment beyond maximum must be jury-determined)
Blakely v. Washington, 542 U.S. 296 (2004) (jury determination required for upward departures in sentencing)
State v. Horn, 291 Kan. _, 238 P.3d 238 (2010) (waiver of the jury for upward departure requires knowing, intelligent relinquishment)
State v. Cullen, 275 Kan. 56, 60 P.3d 933 (2003) (departure statute analyzed for Apprendi compliance)
State v. Ware, 262 Kan. 180, 938 P.2d 197 (1997) (appellate review of sentences arising from pleas)
State v. Santos-Garza, 276 Kan. 27, 72 P.3d 560 (2003) (guideline on appealability of illegal sentences from plea agreements)
State v. Kirtdoll, 281 Kan. 1138, 136 P.3d 417 (2006) (unknown applicability cited; standard for voluntariness of waivers)
State v. Carter, 278 Kan. 74, 91 P.3d 1162 (2004) (de novo review when facts undisputed in waiver challenges)
State v. Sykes, 35 Kan. App. 2d 517, 132 P.3d 485 (2006) (waiver of jury trial for certain rights reviewed de novo when undisputed)
State v. Patton, 287 Kan. 200, 195 P.3d 753 (2008) (interpretation of ambiguous plea language for waivers)
State v. Shopteese, 283 Kan. 331, 153 P.3d 1208 (2007) (waiver standards for guilty pleas and related rights)
State v. Copes, 290 Kan. 209, 224 P.3d 571 (2010) (Due Process requires intentional relinquishment of known rights)