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State v. Cody

Supreme Court of Kansas
Dec 7, 2001
272 Kan. 564 (Kan. 2001)

Summary

holding guilty plea does not remove obligation to prove aggravating factors beyond a reasonable doubt

Summary of this case from U.S. v. Hill

Opinion

Nos. 83,126 83,686

Opinion filed: December 7, 2001.

SYLLABUS BY THE COURT

1. CRIMINAL LAW — Guilty Plea — Plea Does Not Constitute Either an Admission or Waiver of Due Process Rights. Under Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S.Ct. 2348 (2000), a plea of guilty to the elements of a criminal offense does not constitute either an admission or a waiver of his or her due process rights.

2. SAME — Sentencing — Departure Sentence — Aggravating Factors. K.S.A. 21-4717 lists aggravating factors which may be considered by a court for drug crimes in determining whether to depart. However, it is K.S.A. 2000 Supp. 21-4716(a) that contains the legislature's grant of authority to allow a sentencing judge to depart from the presumptive sentence.

3. SAME — Sentencing — Departure Sentence — Statutory Method for Allowing Upward Departure Sentence Declared Unconstitutional on Its Face. In State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), this court held that K.S.A. 2000 Supp. 21-4716 relating to imposing upward departure sentences was unconstitutional on its face. Where an act of the legislature or a portion thereof is clearly unconstitutional, it is the duty of the courts to so declare and to hold the unconstitutional provision or provisions null and void.

Review of the judgment of the Court of Appeals in 27 Kan. App. 2d 1037, 10 P.3d 789 (2000). Appeal from Sedgwick district court; DAVID W. DEWEY, judge. Judgment of the Court of Appeals affirming the district is reversed. Judgment of the district court is reversed and remanded with directions. Opinion filed December 7, 2001.

Kathryn B. Wall, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the briefs for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.


The opinion of the court was delivered by


This is a direct appeal by the defendant, Barry A. Cody, from his sentence after pleading guilty to drug possession charges. In 1999, Cody pled guilty and was sentenced to a controlling term of 72 months' imprisonment. The sentence twice exceeded Cody's base sentence and was therefore illegal. The mistake was caught by the Department of Corrections, which notified the trial court. The trial court notified the parties that in correcting the illegal sentence it intended to impose an upward durational departure. At the resentencing hearing, the trial court made a durational departure and ordered that Cody serve a controlling sentence of 64 months, doubling the presumptive sentence for the primary offense.

The controlling issue before this court involves Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S.Ct. 2348 (2000).

The Court of Appeals upheld the sentencing court's decision, holding that Apprendi did not apply because the primary facts upon which Cody's upward departure sentence was based were proven beyond a reasonable doubt by Cody's admissions and pleas of guilty. State v. Cody, 27 Kan. App. 2d 1037, 1038-39, 10 P.3d 789 (2000).

This court granted review and issued an order to show cause why State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), is not controlling.

This case presents the issue of whether the district court's imposition of an upward departure sentence was unconstitutional when Cody pled guilty to criminal charges and the court based its sentence upon Cody's admissions, not upon facts found beyond a reasonable doubt by a jury. The State argues that "the primary facts upon which the departure was based were proven beyond a reasonable doubt by the defendant's admissions and pleas of guilty to various charges." Cody contends, however, that under Apprendi, a plea of guilty to the elements of a criminal offense does not constitute either an admission or a waiver of his due process rights. Cody asserts that "the fact that he admitted each of the elements of the offenses is in no way an admission that the sentencing factors used to increase his sentence were proved beyond a reasonable doubt." We agree. See Apprendi, 530 U.S. at 476-77, 490; State v. Kneil, No. 83,938, this day decided.

The record of the sentencing hearing fails to reveal the precise statute the court relied upon for authority in its upward departure. Both the State and Cody note that K.S.A. 21-4717 lists aggravating factors which may be considered by a court in drug crimes in determining whether to depart. However, it is K.S.A. 2000 Supp. 21-4716(a) that contains the legislature's grant of authority to allow a sentencing judge to depart from the presumptive sentence. Thus, K.S.A. 2000 Supp. 21-4716 is implicated here. "Interpretation of a statute is a question of law, and our review is unlimited." Kansas Dept. of SRS v. Paillet, 270 Kan. 646, 654, 16 P.3d 962 (2001).

In Gould, this court held that K.S.A. 2000 Supp. 21-4716 relating to imposing upward departure sentences, was unconstitutional on its face. 271 Kan. 394, Syl. ¶ 3. Where an act of the legislature or a portion thereof is clearly unconstitutional, it is the duty of the courts to so declare and to hold the unconstitutional provision or provisions null and void. State v. Barrett, 27 Kan. 213, Syl. ¶ 2, (1882). Therefore, we reverse the sentence imposed by the court under K.S.A. 2000 Supp. 21-4716 and remand for resentencing per Gould.

Reversed and remanded for resentencing.


I have not changed my mind from my dissent in Gould. I am simply recognizing the fact I have been outvoted by a large majority of the court.


Summaries of

State v. Cody

Supreme Court of Kansas
Dec 7, 2001
272 Kan. 564 (Kan. 2001)

holding guilty plea does not remove obligation to prove aggravating factors beyond a reasonable doubt

Summary of this case from U.S. v. Hill

In State v. Cody, 272 Kan. 564, 565, 35 P.3d 800 (2001), this court further clarified that a defendant's admission to each of the elements of the criminal offense in conjunction with a guilty plea "`is in no way an admission that the sentencing factors used to increase [his or her] sentence were proved beyond a reasonable doubt.'"

Summary of this case from State v. Horn

In State v. Cody, 272 Kan. 564, 35 P.3d 800 (2001), the effects of the decision in Gould were further addressed when this court was faced with determining whether a defendant's guilty plea constituted an admission that the sentencing factors used to increase his sentence were proven beyond a reasonable doubt.

Summary of this case from State v. Kessler

In State v. Cody, 272 Kan. 564, 35 P.3d 800 (2001), and State v. Kneil, 272 Kan. 567, 35 P.3d 797 (2001), the court held that upward durational departure sentences imposed under K.S.A. 2001 Supp. 21-4716 were constitutionally impermissible despite the fact that both defendants pled guilty to the underlying crimes.

Summary of this case from State v. Santos-Garza

In State v. Cody, 272 Kan. 564, 35 P.3d 800 (2001), and State v. Kneil, 272 Kan. 567, 35 P.3d 797 (2001), we held that upward durational departure sentences imposed under K.S.A. 2001 Supp. 21-4716 were unconstitutional despite the fact that defendants pled guilty to the underlying crimes.

Summary of this case from State v. Pruitt

In Cody, the trial court's upward durational departure sentence was based on a finding that Cody was involved in major drug activity.

Summary of this case from State v. Purcell
Case details for

State v. Cody

Case Details

Full title:STATE OF KANSAS, Appellee , v. BARRY A. CODY, Appellant

Court:Supreme Court of Kansas

Date published: Dec 7, 2001

Citations

272 Kan. 564 (Kan. 2001)
35 P.3d 800

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State v. Purcell

We hold it does not.         In State v. Cody, 272 Kan. 564, ----, 35 P.3d 800 (2001), our Supreme…

State v. Horn

When we read all of the provisions added by the 2002 Kansas Legislature which are now found in K.S.A. 21-4716…