State v. Hernandez, 273 P.3d 774

Hernandez pled guilty to aggravated sexual battery in case 07CR2807 for an incident with a 17-year-old (L.M.C.) on Sept 8, 2007 while on bond awaiting sentencing.
In December 2007, while on bond, Hernandez visited R.F.'s home and slept in a bed with V.F., age 11, leading to a charged offense of aggravated indecent liberties with a child (off-grid).
A jury convicted Hernandez of aggravated indecent liberties with a child and the lesser included offense, attempted aggravated indecent liberties with a child, on two separate verdict forms.
The trial court sentenced the aggravated indecent liberties conviction to life with 25 years to serve, and imposed 32 months for aggravated sexual battery to run consecutive; cases were consolidated on appeal.
On appeal, the court addressed (1) inconsistent verdicts and failure to prove Hernandez's age, reversing the aggravated indecent liberties conviction and remanding for a new trial; (2) affirming the use of criminal history for sentencing in the aggravated sexual battery case.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Inconsistent verdicts require mistrial or correction	Hernandez (State) argues verdicts on greater and lesser offenses were inconsistent.	Hernandez contends the two verdicts cannot stand together and require mistrial.	Yes; verdicts were legally inconsistent and a mistrial was warranted.
Was Hernandez’s age properly proven for off-grid offense	State argues age proof supported off-grid offense.	Hernandez argues age not proven, constituting fatal defect for off-grid conviction.	Insufficient proof of age; remand for on-grid sentencing or retrial on proper theory.
May the off-grid offense be retried after reversal of the on-grid offense	State seeks retrial on off-grid offense upon remand.	Defendant argues retrial on off-grid is improper if off-grid conviction was not established.	Remand for retrial on off-grid not appropriate; otherwise risks double jeopardy and misapplication of law.
Double jeopardy and Apprendi implications in sentencing after remand	State urges Apprendi considerations may affect retrial and sentencing.	Dissent cautions against misapplying Apprendi to double jeopardy in noncapital sentencing.	Courts may not treat Apprendi as altering double jeopardy; Monge governs noncapital sentencing, but issues may be revisited on remand.

State v. Culbertson, 214 Kan. 884 (1974) (when greater and lesser offenses are found, verdicts may be defective; trial court should reinstruct or correct)
State v. Winters, 276 Kan. 34 (2003) (multiplicitous charges; vacate lesser or combine appropriately; remand for sentencing on greater)
State v. Reyna, 290 Kan. 666 (2010) (age as an element for off-grid aggravated indecent liberties; later decisions treat age as element for off-grid charge)
State v. Sellers, 292 Kan. 117 (2011) (age evidence and on/off-grid sentencing; remand for on-grid sentencing when age not proven)
Bello v. State, 289 Kan. 191 (2009) (age as an element; on-grid/off-grid sentencing considerations)
Gonzales v. State, 289 Kan. 351 (2009) (age element in Jessica's Law contexts; off-grid/off-grid distinctions)
Monge v. California, 524 U.S. 721 (1998) (double jeopardy generally does not apply to noncapital sentencing; limited capital exception)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (requires proof of certain sentencing facts as elements for jury trial)
Blakely v. Washington, 542 U.S. 296 (2004) (Apprendi principle extended to sentencing; jury trial rights)
State v. Ward, 292 Kan. 541 (2011) (abuse of discretion standard for mistrial rulings)
State v. McCaslin, 291 Kan. 697 (2011) (preservation of suppression issues requires timely objection)