Description: Lawrence, Kansas criminal defense lawyer represented the Defendant charged with aggravated sexual battery.

Duckworth entered a no-contest plea to two counts of aggravated sexual battery in violation of K.S.A. 21-5505(b)(1), a severity level 5 person felony, for his conduct with a 16-year-old victim. At the plea hearing, the district court reviewed the plea advisory and plea agreement that Duckworth had executed before the plea hearing. The factual basis for Duckworth's pleas included the victim's testimony that she felt powerless to stop Duckworth because "he is a grown man." The plea advisory included Duckworth's attestation that he was 35 years old at the time he signed it. It set out the consequences of Duckworth's decision to enter a no-contest plea and instructed Duckworth to initial next to many constitutional rights to show his understanding and waiver of such rights. Duckworth acknowledged by his initials that he understood the minimum and maximum penalties for both of his crimes, including that his term of postrelease supervision would be for "Life."

After Duckworth swore that he had read the plea advisory and fully understood his rights and the rights he was waiving by entering his plea, the district court accepted his no-contest pleas. The district court found that the evidence presented at the preliminary hearing provided a factual basis for Duckworth's freely, voluntarily, and intelligently made pleas. Before the conclusion of the plea hearing, Duckworth executed a notice of his duty to register as a sex offender form which stated his date of birth as July 12, 1987.

Before sentencing, Duckworth moved for a downward durational departure. He argued that although he was facing a standard presumptive prison sentence of 44 months based on his criminal history score of F-as classified in the presentence investigation (PSI) report-substantial and compelling reasons warranted a departure to 32 months. That PSI report identified Duckworth's age as 35 at the time he committed the crimes, showed Duckworth had 12 prior adult convictions, and reflected that Duckworth's convictions in this case required lifetime postrelease supervision.

At the sentencing hearing, Duckworth's counsel informed the district court that he had received a copy of the PSI report, had reviewed it with Duckworth, and they had no objections to the PSI report. After hearing arguments from both parties and statements from the victim, the victim's mother, the victim's father, and Duckworth, the district court denied Duckworth's downward departure motion. The district court imposed the aggravated sentence of 47 months in prison for the first count of aggravated sexual battery, and the standard sentence of 32 months in prison for the second count to run consecutive. The district court also imposed lifetime postrelease supervision on both counts.

Duckworth timely appealed, challenging his sentence to lifetime postrelease supervision. After the parties submitted briefs, the Kansas Supreme Court decided State v. Nunez, 319 Kan. 351, 554 P.3d 656 (2024), and both parties submitted supplemental briefs addressing the impact of that case on this one.

Did the District Court Engage in Judicial Fact-finding in Violation of Apprendi?

Duckworth argues for the first time on appeal that the district court engaged in judicial fact-finding in violation of Apprendi, 530 U.S. at 490, by finding that he was over the age of 18 when he committed the crimes, as is necessary to impose lifetime postrelease supervision. Duckworth did not raise this Apprendi challenge in the district court, but he argues that this court can consider this claim for the first time on appeal because it raises a purely legal question based on undisputed facts. We agree. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). Although we are under no obligation to review this newly asserted claim, State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020), we choose to reach the merits of this argument.

Duckworth contends that although he admitted his age in documents he submitted to the district court, the district court never told him that he had a right to have a jury
determine that he was over the age of 18, and he never waived that right. Whether a sentencing court violated a defendant's constitutional rights under Apprendi raises a question of law subject to our unlimited review. State v. Huey, 306 Kan. 1005 1009, 399 P.3d 211 (2017).

Duckworth contends that his crime, aggravated sexual battery-a severity level 5 offense-generally carries a mandatory postrelease supervision term of 60 months. K.S.A. 22-3717(d)(1)(G)(ii). But under K.S.A. 22-3717(d)(1)(G)(i), lifetime postrelease supervision is mandatory when the offender is 18 or older and is convicted of a sexually violent crime. Duckworth agrees that his convictions for aggravated sexual battery are sexually violent crimes. See K.S.A. 22-3717(d)(5)(I). Duckworth further agrees that he admitted that he was over the age of 18 when he committed the sexually violent crimes. But still Duckworth contends that sentencing him to lifetime postrelease supervision violated Apprendi.

In Apprendi, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. The "'statutory maximum'" is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The Court has reaffirmed Apprendi's holding that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Under Apprendi,

"a defendant's constitutional jury trial rights guaranteed by the Sixth Amendment to the United States Constitution are violated by judicial fact-finding (that is, facts found by a judge rather than a jury) which increases the penalty for a crime beyond what is authorized by the facts reflected in the jury's verdict." Nunez, 319 Kan. at 353.

Admissions need a knowing and voluntary waiver.

Duckworth contends that when a defendant enters a plea, the facts admitted in a guilty plea are the only facts that a court can consider without violating Apprendi, citing State v. Bello, 289 Kan. 191, 199-200, 211 P.3d 139 (2009) (holding Apprendi requires vacation of life sentences imposed under Jessica's Law when neither complaint nor jury instructions included determination of defendant's age). He also contends that a sentencing court cannot consider a defendant's admission without violating Apprendi unless the court informs and receives a proper waiver of the jury trial right.
State v. Duckworth, 126,677 (Kan. App. Oct 25, 2024)

Outcome: Affirmed

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