State v. Williams ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,697
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
KEVIN LEE WILLIAMS,
Appellant.
MEMORANDUM OPINION
Appeal from Franklin District Court; DOUGLAS P. WITTEMAN, judge. Opinion filed October 30,
2020. Sentence vacated and case remanded with directions.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Tara N. Athmer, assistant county attorney, Brandon L. Jones, county attorney, and Derek
Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., MALONE, J., and WALKER, S.J.
PER CURIAM: The United States Supreme Court has long recognized that
"whenever a judge imposes a more severe sentence upon a defendant after a new trial, the
reasons for his doing so must affirmatively appear." North Carolina v. Pearce, 395 U.S.
711, 726, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other grounds by
Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989). When Kevin
Lee Williams' conviction was overturned, on remand the judge changed his sentences
from concurrent to consecutive. In this appeal, Williams argues that the district court
violated his due process rights by imposing a vindictive sentence. He also argues the
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court violated the Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution by imposing another sentence on an offense for which he already served a
sentence. Because the State concedes there was nothing in the record to support an
enhanced sentence, we vacate Williams' driving under the influence (DUI) sentence and
remand with directions to reinstate the original sentence.
FACTUAL AND PROCEDURAL HISTORY
In 2014, a jury found Williams guilty on one count of felony possession of
marijuana in violation of K.S.A. 2013 Supp. 21-5706(b)(3), and two counts of DUI in
violation of K.S.A. 2013 Supp. 8-1567(a)(2) and (3). Because the DUI charges were
alternative counts, he was only convicted for a DUI under subsection (a)(2). See State v.
Blanchette, 35 Kan. App. 2d 686, 704, 134 P.3d 19 (2006). District Judge William Lyle
ordered Williams to serve 42 months in prison on the felony drug charge and 12 months
in jail on the DUI. The terms were to run concurrent and he was granted 24 months'
probation after serving 45 days in jail.
Williams appealed his convictions, arguing there was insufficient evidence to
support either conviction. Although this court affirmed the conviction for possession of
marijuana, the panel determined that there was insufficient evidence to support his DUI
conviction under K.S.A. 2013 Supp. 8-1567(a)(2). As a result, the panel reversed that
conviction and vacated his sentence. But because the jury had also returned a guilty
verdict for DUI under K.S.A. 2013 Supp. 8-1567(a)(3), the panel concluded the
"appropriate remedy" was to remand to the district court with directions to "consider
whether the evidence is sufficient to adjudge Williams guilty of the alternative count of
DUI" and, if so, to sentence him for that count. State v. Williams, No. 114,371, 2016 WL
7428309, at *5-6 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. 1331
(2017).
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While his petition for review was pending, the district court terminated Williams'
probation as successful and discharged him. That order was signed by District Judge
Douglas P. Witteman. The mandate issued in September 2017.
On remand, Judge Witteman found sufficient evidence to support a conviction for
DUI under K.S.A. 2013 Supp.8-1567(a)(3). During resentencing, Williams informed the
court that he had already served a sentence on the DUI charge. Judge Witteman
ultimately decided to sentence him to a 12-month sentence, noting that "was what was
originally imposed," but ran it consecutive to his sentence for possession of marijuana
and set it aside for another 12-month probation term. Judge Witteman also gave Williams
credit for the 45 days of jail time served on the vacated sentence, as well as more time for
days served as part of sanctions for violating probation.
In explaining his rationale, Judge Witteman noted he was not offended that the
sentence was overturned because he "wasn't the judge who imposed the first sentence."
He also called the original sentence an "extraordinary break" by Judge Lyle, and he stated
that "under the circumstance where the big break was given as it relates to the
dispositional departure, I think the appropriate thing to do under the circumstances here is
to impose the sentence consecutively."
Williams timely appealed.
ANALYSIS
Williams argues that the district court violated his due process rights by imposing
a vindictive sentence on remand. He asserts that the court failed to articulate reasons that
stemmed from objective conduct by the defendant and that a presumption of
vindictiveness under State v. Rinck, 260 Kan. 634, 645, 932 P.2d 67 (1996), should apply.
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In response, the State notes that although there was no evidence of intent or desire
on the district court's part, a review of the relevant caselaw supports a presumption of
vindictiveness. See State v. Brown, 309 Kan. 369, 375, 435 P.3d 546 (2019) (finding due
process violation on similar facts). As a result, the State concedes that there was not
sufficient evidence to support an enhanced sentence and asks this court to vacate
Williams' sentence and remand with directions to reinstate his original concurrent
sentence. We agree.
The United States Supreme Court has long recognized that "whenever a judge
imposes a more severe sentence upon a defendant after a new trial, the reasons for his
doing so must affirmatively appear." Pearce, 395 U.S. at 726 (holding that the
presumption does not apply when first sentence obtained by guilty plea and second
sentence follows a trial). The court must articulate reasons for an increased punishment
that are "based upon objective information [available in the record] concerning
identifiable conduct on the part of the defendant," otherwise there is a presumption of
vindictiveness. 395 U.S. at 726.
The Kansas Supreme Court first applied a presumption of judicial vindictiveness
in Rinck, 260 Kan. 634. In that case, the defendant had successfully challenged his
convictions on appeal, and on remand, the district court effectively sentenced him to
double the original sentence. Our court found there was "no objective information
concerning identifiable conduct" in the record to justify the higher sentence, and so the
presumption of vindictiveness applied "by operation of law." 260 Kan. at 645. More
recently in Brown, the Kansas Supreme Court found that it was vindictive for the
sentencing court to increase the defendant's sentence on remand at the request of the
prosecutor and victim's mother solely because of his successful appeal. 309 Kan. at 378.
Here, the State concedes that the district court's reasons for imposing a more
severe sentence on remand did not meet the standard announced in Brown. Indeed, as
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both parties note, the only justification given by the court at resentencing for imposing a
consecutive prison term and a new probation term amounted to the judge's perception of
the original sentence as too lenient. And as the State acknowledges, the only reason
Williams was in the position to be resentenced was because of his successful appeal.
Lastly, both of the DUI counts carried the same range of penalties under K.S.A. 2013
Supp. 8-1567(b)(1) and (2).
For these reasons, we find that the district court violated Williams' right to due
process because there was nothing in the record to support imposing a consecutive rather
than concurrent sentence on the DUI conviction. The sentence imposed on remand is
vacated, and the case remanded with directions to impose the original concurrent
sentence on the DUI conviction. Given our holding, we need not address Williams'
double jeopardy claim.
Sentence vacated and case remanded with directions.
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