STATE OF KANSAS, Aрpellee, v. DARRYLN MICHAEL JOHNSON, Appellant.
No. 124,064
IN THE SUPREME COURT OF THE STATE OF KANSAS
Opinion filed June 30, 2023.
SYLLABUS BY THE COURT
- A claim challenging the constitutional validity of a waiver relinquishing the right to have a jury determine the existence of upward departure aggravating factors falls outside the definition of an illegal sentence, overruling State v. Duncan, 291 Kan. 467, 472-73, 243 P.3d 338 (2010).
- Absent a valid illegal sentence claim under
K.S.A. 2022 Supp. 22-3504 , an appellate court lacks jurisdiction to review a sentence resulting from an agreement between the State and the defendant that the sentencing court approves on the record.
Review of the
Grace Tran, of Kansas Appellate Defender Office, argued the cause, and Jennifer C. Bates, of the same office, was on the briefs for aрpellant.
Natalie Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the briefs for appellee.
STANDRIDGE, J.: Darryln Johnson pleaded guilty to two counts of sexual exploitation of a child. The district court advised Johnson of—and he exercised—his constitutional right to waive a jury trial on criminal liability for the crimes charged. As part of his plea, Johnson agreed to an upward departure from the guidelines sentence based on his stipulation to the existence of two aggravating factors. The court approved this agreement on the record but did not advise Johnson of his separate statutory right under
Johnson appealed, arguing for the first time on appeal that his sentence was illegal under
While
PROCEDURAL HISTORY
In April 2015, Johnson‘s parolе officer reported to law enforcement a belief that Johnson possessed child pornography on his phone. The court issued a search warrant and, when executed, law enforcement discovered two videos depicting sexually explicit conduct of a child under 14 recorded by Johnson. In the videos, Johnson recorded a 6-year-old girl who was partially undressed in a changing room at a retаil store. Johnson gave the child directions and told her how to pose. Law enforcement learned the child was the granddaughter of Johnson‘s long-time friend, and Johnson was helping the child shop for an Easter dress. The State charged Johnson with three counts of sexual exploitation of a child, two of which were off-grid crimes because Johnson recorded the two videos himself.
The parties reached a plеa agreement. Johnson agreed to plead to an amended complaint charging two severity level 5 counts of sexual exploitation of a child. The parties agreed to jointly recommend Johnson serve an upward departure sentence of 180 months
“[the] agreement is expressly conditioned on the defendant stipulating to, and agreeing to, an upward durational departure in order to receive a sentence of 180 months in prison. The Defendant agrees to stipulate to the following aggravating factors pursuant to
K.S.A. 21-6815 :− The victim was particularly vulnerable due to age which was known or should have been known to the offender.
K.S.A. 21-6815(c)(2)(A) ; and/or− The offense involved a fiduciary relationship which existed between the defendant and the victim.
K.S.A. 21-6815(c)(2)(D) .”
At sentencing, the State summarized the factual basis for its original charges. The deteсtive who investigated Johnson‘s phone testified at the sentencing hearing as to the phone‘s contents. The State also presented the two videos. The videos zoom in on the child‘s nude top and crotch area.
Johnson also testified at the hearing. He admitted to both aggravating factors by acknowledging the child victim was of a vulnerable age and that he violated a fiduciary trust relationship with the child victim. Consistеnt with the plea agreement and the amended complaint, the district court sentenced Johnson to 180 months in prison with lifetime post-release supervision. Also consistent with the agreement, the court found the offense involved a fiduciary relationship, and the victim was particularly vulnerable due to age.
Johnson appealed, arguing his sentence is illegal because he was not advised of and did not knowingly and vоluntarily waive his right to a jury trial on the upward departure aggravating factors. The Court of Appeals held the sentence was not illegal and affirmed the district court. Johnson, 2022 WL 3017620, at *1, 4-5. Johnson petitioned this court for review, again arguing his sentence was illegal because he was never advised
of, nor did he waive, his right to have a jury determine the facts to support the upward departure. The State cross-petitioned, asking us to clarify or overrule Duncan because it conflicts with our well-established caselaw over the past decade holding that a motion to correct an illegal sentence is not the proper vehicle to raise a constitutional challenge to the sentence imposed.
ANALYSIS
Johnson argues his sentence is illegal because the district court relied on aggravating factors to impose a sentencе above the statutory maximum authorized by statute without advising him and obtaining a knowing and voluntary waiver of the right to have a jury determine those aggravating factors beyond a reasonable doubt. Whether a sentence is illegal is a question of law subject to de novo review. State v. Juiliano, 315 Kan. 76, 78, 504 P.3d 399 (2022). Statutory interpretation is also a legal question subject to unlimited review. State v. Clark, 313 Kan. 556, 572, 486 P.3d 591 (2021).
An illegal sentence is defined as: (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.
We have held the “applicable statutory provision” in
category of punishment, or involve the criminal history classification axis. See State v. Alford, 308 Kan. 1336, 1340, 429 P.3d 197 (2018). This includes whether a person‘s previous conviction was properly classified under the Kansas Sentencing Guidelines Act (KSGA) when determining criminal history. See State v. Dickey, 305 Kan. 217, 221-22, 380 P.3d 230 (2016).
Johnson claims his sentence is illegal because it does not conform to
Given this dispute between the parties, we must decide the nature of Johnson‘s claim before addressing the merits. The question presented is (1) whether Johnson‘s
claim alleges his sentence does not conform to the applicable statutory provision, either in character or punishment, or (2) whether Johnson‘s claim alleges his sentence violates a constitutional provision. To resolve this question, wе begin with the statutes cited by Johnson to argue his sentence does not conform to the applicable statutory provision.
K.S.A. 2022 Supp. 21-6815(b) , which provides that, subject toK.S.A. 2022 Supp. 21-6817(b) , aggravating factors that increase the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.K.S.A. 2022 Supp. 21-6817(b)(2) , which requires the court to decide whether the aggravating factors should be submitted to a jury during trial or to a jury in a separate departure sentencing hearing after determination of the defendant‘s innocence or guilt.K.S.A. 2022 Supp. 21-6817(b)(4) , which applies if the court decides the aggravating factors should be presented at a separate departure sentencing hearing and provides that the defendant can waive the right to have a jury decide aggravating factors in the manner provided byK.S.A. 22-3403 . If a jury determination on aggravating factors is waived, the court will conduct the upward durational departure sentence proceeding.K.S.A. 22-3403(1) , which permits the parties—with the court‘s consent—to submit the trial of any felony to the court.
In short, these statutes give a defendant (1) the right to have a jury determine whether aggravating factors exist and (2) the ability to waive that right upon agreement by defendant with the consent of the court. Johnson argues his sentence is illegal because it does not conform to the “applicable statutory provision” in
6817(b), which gives a defendant the right to have a jury determine aggravating factors unless waived by the defendant. But Johnson‘s illegal sentence argument is based on a faulty premise—that
And the arguments presented by Johnson in both his brief to the Court of Appeals and in his petition for review lead us to conclude that his claim depends solely on constitutional principles:
“Mr. Johnson did not waive his right to have a jury determine the facts supporting any upward departure. To effect a knowing and voluntary waiver of the right to jury trial, a criminal defendant must be informed by the district court of that right and must then clearly and unequivocally give up that right. See State v. Rizo, 304 Kan. 974, Syl. ¶ 2, 377 P.3d 419 (2016); State v. Beaman, 295 Kan. 853, 858-59, 286 P.3d 876
(2012). A generic waiver of the jury trial right regarding guilt or innocence does not encompass the right to have a jury determine the facts supporting an upward durational depаrture—a defendant must be explicitly informed of that right to effectively waive it. State v. Duncan, 291 Kan. 467, 472-73, 243 P.3d 338 (2010).”
Johnson challenges the constitutional validity of the jury waiver and not a statutorily unauthorized sentence. Consistent with longstanding precedent, Johnson is precluded from using
With no valid illegal sentence claim under
We acknowledge that our holding today appears to conflict with the holding we announced under a similar challenge in Duncan, 291 Kan. at 470-71. As here, Duncan pleaded guilty to a reduced charge but agreed to a specific upward durational departure
sentence. After a colloquy with the district court, he waived all rights associated with the guilt phase of a jury trial and pleadеd guilty. The district court, however, did not ask him to and he did not waive his right to have a jury determine the existence of aggravating factors. The district court imposed the agreed-upon upward departure sentence and granted him probation.
The court ultimately revoked probation and Duncan appealed, claiming his sentence was illegal. To support his illegal sentence claim, Duncan argued the district court violated his constitutional rights by imposing an upward departure sentence without a valid waiver of the right to have a jury determine the aggravating factors. The State argued the court did not have jurisdiction to consider Duncan‘s claim because
We rejected the State‘s jurisdictional argument, holding that “an appellate court‘s jurisdiction to consider a challenge to a sentence is limited to those grounds authorized by [
After finding Duncan cleared the jurisdictional hurdle by claiming his sentence was illegal, we moved to the merits of his waiver challenge. 291 Kan. at 471. After reviewing the plea agreement and the transcript of the plea hearing, we held Duncan did not make a constitutionally valid waiver of his right to a jury determination of the
aggravating sentencing factors. 291 Kan. at 473. In discussing the appropriate remedy for this constitutional deficiency, we noted
In retrospect, we find our jurisdictional decision in Duncan is analytically flawed. We properly held an appellate court has jurisdiction to review an illegal sentence claim. We then concluded an upwаrd departure sentence imposed in an unconstitutional proceeding results in an illegal sentence, which in turn gave us jurisdiction to consider Duncan‘s constitutional claim. Missing from this analysis is the essential inquiry into whether his constitutional claim of error met the definition of an illegal sentence by considering if (1) the sentence was imposed by a court without jurisdiction; (2) the sentence failed to conform to the applicable stаtutory provision, either in the character or punishment; or (3) the sentence was ambiguous with respect to the time and manner in which it is to be served.
Although Duncan was decided in 2010 and
- A claim challenging the constitutional validity of a waiver relinquishing the right to have a jury determine the existence of upward departure aggravating factors under
K.S.A. 2022 Supp. 21-6817(b) falls outside the definition of an illegal sentence. - Absent a valid illegal sentence claim under
K.S.A. 2022 Supp. 22-3504 , an appellate court lacks jurisdiction to review a sentence resulting from an agreement between the State and the defendant which the sentencing court approves on the record.
To the extent Duncan conflicts with our holdings today, we оverrule it. “We do not overrule precedent lightly and must give full consideration to the doctrine of stare decisis.” State v. Sherman, 305 Kan. 88, 107, 378 P.3d 1060 (2016). “We recognize that ‘[t]he application of stare decisis ensures stability and continuity—demonstrating a continuing legitimacy of judicial review. Judicial adherence to constitutional precedent ensures that all branches of government, including the judicial branch, are bound by law.‘” Herington v. City of Wichita, 314 Kan. 447, 456, 500 P.3d 1168 (2021) (quoting Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89 P.3d 573 [2004]).
But stare decisis “‘is not a rigid inevitability but a prudent governor on the pace of legal change.‘” Herington, 314 Kan. at 456 (quoting State v. Jordan, 303 Kan. 1017, 1021, 370 P.3d 417 [2016]). “While this court is not inexorably bound by its own precedent, we generally will follow the law of earlier cases unless clearly convinced that the rule ‘was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.‘” 314 Kan. at 457 (quoting Sherman, 305 Kan. at 108). In this case, we are clearly convinced that we erred in Duncan. Our holdings today correct this previous error.
CONCLUSION
We hold a claim challenging the constitutional validity of a waiver relinquishing the statutory right under
Judgment of the Court of Appeals affirming the district court is reversed, and the appeal is dismissed.