State v. Fitzgerald, 123121

Between 2019–2020 Fitzgerald was charged in four separate cases for stalking, breach of privacy, violation of a protective order, and harassment; he pleaded guilty under a plea agreement that included recommended sentences and consolidation of the cases "for trial."
The plea agreement preserved the State's right to revoke the agreement if Fitzgerald violated bond/plea conditions; he continued contacting the victim and was arrested on new, more serious offenses before sentencing.
At sentencing the State moved for an upward dispositional departure, presenting witness testimony, audio, and victim statements; the district court found Fitzgerald not amenable to probation and imposed aggravated grid-box jail terms.
The district court applied the statutory "double rule" to one felony case (20 CR 375) but not to the total sentence for the consolidated felony convictions, resulting in a controlling 84-month prison term.
On appeal Fitzgerald challenged the upward departure and argued the differential application of K.S.A. 2019 Supp. 21-6819(b)(4) (the double rule) to consolidated cases violated equal protection; after briefing the court considered State v. Dixon and supplemental briefing.
The appellate court affirmed the upward dispositional departure but held the double rule must be applied to consolidated cases that could have been charged in a single document, vacated certain felony sentences, and remanded for resentencing consistent with that rule.

Issue	Fitzgerald's Argument	State's Argument	Held
Validity of upward dispositional departure (constitutional and sufficiency of reasons)	Apprendi requires facts supporting increased punishment be proved beyond a reasonable doubt; imprisonment over probation lacked substantial, compelling reasons	Apprendi does not apply to dispositional departures; record contained substantial, competent evidence (bond violations, new crimes, disregard for orders) showing nonamenability	Apprendi inapplicable to dispositional departure; district court provided substantial, compelling evidence of nonamenability; upward departure affirmed
Equal Protection: application of the "double rule" to consolidated cases	Double rule treats similarly situated defendants differently when multiple case numbers are used; consolidation under K.S.A. 22-3203/22-3202(1) that could have been a single charging document should yield the double-rule benefit	Dixon was wrongly decided; consolidation here arose from plea/sentencing purposes and differs from trial consolidation; thus Fitzgerald is not similarly situated	Agrees with Dixon: statute, as applied, fails rational-basis scrutiny; when cases are consolidated for trial (or could have been charged in one document) the double rule must apply; felony sentences vacated and remanded for resentencing to give double-rule effect

Apprendi v. New Jersey, 530 U.S. 466 (2000) (judicial factfinding that increases criminal punishment beyond statutory range raises Sixth Amendment concerns)
State v. Carr, 274 Kan. 442 (2002) (Apprendi does not prohibit dispositional departures substituting imprisonment for probation)
State v. Dixon, 60 Kan. App. 2d 100 (2021) (held double rule must apply to consolidated cases that could have been charged in a single document)
State v. Denney, 278 Kan. 643 (2004) (remedy for under-inclusive statute may be to extend statute's coverage to aggrieved class rather than strike it down)
State v. Snow, 282 Kan. 323 (2006) (nonamenability to probation can be a substantial and compelling reason for imprisonment)
State v. Rodriguez, 269 Kan. 633 (2000) (court may find nonamenability based on demonstrated attitude and prior failures on supervised release)