              IN THE SUPREME COURT OF THE STATE OF KANSAS

                                       No. 114,567

                                   STATE OF KANSAS,
                                       Appellee,

                                            v.

                                     GRANT WILSON,
                                       Appellant.


                             SYLLABUS BY THE COURT

1.
       Under Supreme Court Rule 8.03(h)(1) (2018 Kan. S. Ct. R. 53), now Rule
8.03(i)(1) as amended July 1, 2018, a party must allege an issue was decided erroneously
by the Court of Appeals for that issue to be properly before the Supreme Court on
petition for review.


2.
       Prosecutorial error jurisprudence recognizes a prosecutor's conduct can implicate a
criminal defendant's due process rights to a fair trial under the Fourteenth Amendment to
the United States Constitution.


3.
       The two-step analytical framework set out in State v. Sherman, 305 Kan. 88, 378
P.3d 1060 (2016), for reviewing claims alleging a prosecutor's trial behavior requires
reversal applies to a prosecutor's conduct during a sentencing proceeding before a judge.




                                            1
4.
        Appellate courts evaluate claims of prosecutorial error by first deciding whether
the act complained of falls outside the wide latitude afforded to prosecutors to conduct
the State's case in a way that does not offend the defendant's constitutional right to a fair
trial. If it finds error, the appellate court determines if that error prejudiced the
defendant's right to a fair trial.


5.
        When evaluating the prejudice step for prosecutorial error, an appellate court
applies the traditional constitutional harmlessness inquiry from Chapman v. California,
386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Prosecutorial error is harmless if the
State shows beyond a reasonable doubt the error did not affect the trial's outcome in light
of the entire record, i.e., there is no reasonable possibility the error contributed to the
outcome at issue.


6.
        When a prosecutor argues facts outside the evidence, the first prong of the
prosecutorial error test is met.


7.
        In deciding whether lifetime postrelease supervision violates Section 9 of the
Kansas Constitution Bill of Rights because it is grossly disproportionate to the convicted
offense, a sentencing judge errs when the judge's decision is based on a factual
determination unsupported by the evidence, i.e., lacks substantial competent evidence.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed December 16,
2016. Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed December 14,
2018. Judgment of the Court of Appeals reversing the district court is affirmed as to the issue subject to
review. Judgment of the district court is reversed as to the issue subject to review, and the case is
remanded with directions.
                                                      2
        Caroline M. Zuschek, of Kansas Appellate Defender Office, argued the cause and was on the
brief for appellant.


        Keith E. Schroeder, district attorney, argued the cause, and Derek Schmidt, attorney general, was
with him on the brief for appellee.


The opinion of the court was delivered by


        BILES, J.: Grant Wilson appeals a modification made to his criminal sentence. He
contends the prosecutor misstated to the sentencing court the facts underlying his
conviction and the facts of a court case cited by Wilson as legal authority against the
modification. A divided Court of Appeals panel could not agree on the errors or the
appropriate standard of review to assess any resulting prejudice. State v. Wilson, No.
114,567, 2016 WL 7324427 (Kan. App. 2016) (unpublished opinion). We granted review
to consider those questions and now remand the case to the district court for a new
hearing on the State's motion to correct an illegal sentence.


        We hold prosecutorial error may occur during a sentencing proceeding before a
judge. We also hold the analytical framework from State v. Sherman, 305 Kan. 88, 378
P.3d 1060 (2016), applies in both the guilt and penalty phases of any trial—whether
before a jury or judge. And based on the Sherman test, we hold there was reversible error
at Wilson's sentencing hearing.


                           FACTUAL AND PROCEDURAL BACKGROUND

        In 2007, Grant Wilson pled guilty to aggravated indecent solicitation of a child.
He later failed to meet his probation terms and was eventually ordered to serve his
underlying prison sentence of 32 months. In 2015, the State moved to correct an illegal
                                                    3
sentence, arguing the district court erred by not imposing lifetime postrelease supervision
as part of Wilson's original sentence. At the hearing on that motion, Wilson claimed
lifetime supervision was grossly disproportionate to his offense, amounting to cruel or
unusual punishment prohibited by Section 9 of the Kansas Constitution Bill of Rights.
The court rejected Wilson's argument based on State v. Freeman, 223 Kan. 362, 367, 574
P.2d 950 (1978), and granted the State's motion.


       On appeal, Wilson raised two issues: (1) whether the prosecutor deprived him of a
fair sentencing hearing by misstating facts in his case and those in an unpublished Court
of Appeals decision cited as authority for Wilson's Freeman claim; and (2) whether the
district court erred by rejecting his disproportionality argument under Freeman. The first
claim intersects with the second to the extent Wilson argues the prosecutor's comments
denied him a fair hearing on the following Freeman factor:


       "The nature of the offense and the character of the offender should be examined with
       particular regard to the degree of danger present to society; relevant to this inquiry are the
       facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability
       for the injury resulting, and the penological purposes of the prescribed punishment."
       Freeman, 223 Kan. at 367.


       Wilson contends this factor supported his disproportionality argument because (1)
the 13-year-old victim snuck out of her house and joined some high school students for a
party where the crime occurred; (2) Wilson had just turned 18 years old and lacked the
ability to make a "good decision" because of his age; (3) Wilson acknowledged he made
"a terrible mistake" in having sex with the underage victim; (4) Wilson worked at his
father's sprinkler installation business after getting out of prison and had a child he was
trying to parent; and (5) there was little danger of Wilson reoffending.



                                                     4
      The State set the stage for this prosecutorial error claim by replying to Wilson's
arguments during the following colloquy:


              "THE COURT: . . . so we now get to Mr. Wilson's particular crime and I know
      I've had other cases in which there was violence involved.


              "There does not appear that [violence] happened in this case but Mr. Wilson was
      certainly of the appropriate age to be held responsible and the fact that he didn't, you
      know, he put himself in a situation. I think there was drinking involved, is that right,
      [Prosecutor]?


              "[PROSECUTOR]: Judge, actually that's one reason, if I can address the Court
      just briefly about those facts, with Mr. Wilson, he raped and sodomized a 13 year old girl.
      He digitally raped her and he sodomized her. Those are extreme crimes of violence. Your
      Honor, the facts of this case, the State charged only the aggravated indecent solicitation
      and agreed to a border box finding to place him on Community Corrections. He was
      placed on Community Corrections, violated the terms of his Community Corrections and
      was sentenced by the Court to go to Labette. He went to Labette, failed to complete
      Labette and his prison sentence was executed so . . . he's clearly shown he's not
      necessarily amenable to do, it's a crime of violence and that distinguishes itself
      completely from [State v.] Proctor [No. 104,697, 2013 WL 6726286 (Kan. App. 2013)
      (unpublished opinion),] which involved a police officer impersonating himself to be a
      child and the defendant showing up at the house to meet the child.


              "THE COURT: All right. I saw back here when I was doing a bond condition
      that he had a rape and aggravated sodomy [at] that point in time back in 26 February,
      2007. I'm not satisfied that, I am satisfied rather that the facts and circumstances of this
      crime do not cry out that this would be an unconstitutional sanction so I'm going to grant
      the State's motion. I find that the sentence was illegal; that the Court is required to
      sentence Mr. Wilson to lifetime post release so I pronounce lifetime post release."
      (Emphases added.)



                                                    5
       On appeal, the State suggested the digital rape and sodomy comments were based
on police reports, but those reports were not in the appellate record. The State
acknowledged reciting the wrong facts about the Proctor decision.


The panel majority's holdings and the dissent's arguments

       The panel majority first considered whether prosecutorial misconduct can occur in
the context of a hearing on a motion to correct an illegal sentence. The majority
concluded it could, so appellate review was proper. It cited other Court of Appeals
decisions that had considered similar claims arising during hearings before a judge.
Wilson, 2016 WL 7324427, at *4 (discussing State v. Serrano-Garcia, No. 103,651, 2011
WL 4357804, at *3-4 [Kan. App. 2011] [unpublished opinion], State v. Roland, No.
101,879, 2010 WL 1078454, at *1-3 [Kan. App. 2010] [unpublished opinion], State v.
Clelland, No. 93,001, 2005 WL 1805250, at *3-5 [Kan. App. 2005] [unpublished
opinion]).


       The majority then considered whether to use the modified two-step analysis
adopted in Sherman but ultimately decided to apply the "old" pre-Sherman test. It did so
because Sherman was decided after the panel's oral arguments, which meant the parties
had not had an opportunity to brief or argue its possible impact. Even so, the majority
observed "application of the new framework would not make a difference in the
outcome." 2016 WL 7324427, at *4.


       Moving to the merits, the majority held the prosecutor's comments that Wilson
digitally raped and sodomized a child were unsupported by the record. It observed: "The
factual basis for the plea, accepted by the court, consisted solely of Wilson's admission
that he 'had sex with a minor under the age of 14 years old.'" 2016 WL 7324427, at *5.
No other evidence was presented.

                                             6
       As to the prosecutor's misstatement about the facts in Proctor, which the State
conceded, the majority noted: "Proctor involved no impersonation and no police officer.
Instead, Proctor was a 19-year-old male who took advantage of a 12-year-old boy."
Wilson, 2016 WL 7324427, at *6; see also Proctor, 2013 WL 6726286, at *2 (Proctor
knew the victim and lived with him for several months while committing the crimes).
The majority held: "The prosecutor thus invited the district court to rely on inaccurate
facts in Wilson's case and to compare them to inaccurate facts in Proctor's case." 2016
WL 7324427, at *6.


       It then concluded these misstatements were: (1) gross and flagrant misconduct
because they were planned and violated well-established rules; (2) motived by ill will
since they were "volunteered in response to the court's narrow question to the prosecutor
whether drinking was involved—a question that went unanswered"; and (3) may have
affected the district court's decision to impose lifetime postrelease supervision. 2016 WL
7324427, at *7-8 ("In the context of this case, we determine the likely effect not on the
verdict reached by the jurors but on the decision made by the district court."). The
majority held those improper comments were prejudicial and denied Wilson a fair
hearing. 2016 WL 7324427, at *9.


       The dissent viewed the circumstances differently. Judge Michael Buser argued the
prosecutor's assertions about digital rape and sodomy were supported by: (1) the
standard arrest report indicating Wilson was arrested for rape and aggravated sodomy of
a child under 14 years old; (2) an entry from the district court's docket sheet
memorializing a hearing held on the same day the arrest report was filed, which states
"'Probable cause found'"; and (3) the appearance bond signed by the judge, which noted
Wilson was charged with "RAPE < 14, AGG. SODOMY." 2016 WL 7324427, at *13.


                                              7
       Judge Buser insisted the first comment was not prosecutorial error because "[i]n
sentencing matters . . . , district court judges rely on the presentence investigation (PSI)
report. In this case, the PSI contained facts and information which also supported [the
challenged factual assertion]." 2016 WL 7324427, at *15. And, the dissent continued,
while none of the listed pieces of the record explicitly stated Wilson "digitally" raped and
sodomized the victim, this information was encompassed by the statute because "Kansas
law defines sexual intercourse as 'any penetration of the female sex organ by a finger, the
male sex organ or any object,'" referring to K.S.A. 21-3501(1). 2016 WL 7324427, at
*15. As to the second comment about Proctor, Judge Buser agreed the prosecutor
incorrectly stated the case's facts but disagreed this constituted misconduct because the
district court judge was presumed to know the law. 2016 WL 7324427, at *15. Finally,
the dissent insisted the pre-Sherman test was inapplicable to a prosecutorial error during a
motion hearing before a district judge because it equated an alleged error tainting a jury
with impact on a trial judge. 2016 WL 7324427, at *11.


       The State petitioned this court for review. Wilson did not ask us to review his
Freeman challenge, which the panel avoided. Accordingly, we address only the
prosecutorial error claim. See Supreme Court Rule 8.03(a)(4)(C) (2018 Kan. S. Ct. R. 54)
("The court will not consider issues not presented or fairly included in the petition.");
Castleberry v. DeBrot, 308 Kan. 791, 794-95, 424 P.3d 495 (2018). The State does not
challenge the majority's holding relating to the Proctor misrepresentations, so that
resolves in Wilson's favor on review. See State v. McBride, 307 Kan. 60, 62, 405 P.3d
1196 (2017).


       Jurisdiction is proper. K.S.A. 20-3018(b) (petitions for review of Court of Appeals
decision); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals
decisions upon petition for review).


                                              8
                                       PRESERVATION

       At the outset we must consider whether Wilson's prosecutorial error challenge is
preserved for our review. On appeal, the State pointed out Wilson did not object to the
alleged misstatements during the hearing, so it argued the issue was not properly
preserved. The panel rejected this contention because a contemporary objection is not
required to claim prosecutorial error during closing argument before a jury, so it reasoned
that principle should extend to Wilson's sentencing proceeding before the judge. Wilson,
2016 WL 7324427, at *4; see also State v. Miller, 293 Kan. 535, 550, 264 P.3d 461
(2011) (while a contemporary objection is required for review of an evidentiary
prosecutorial error claim, it is unnecessary to consider prosecutorial error during closing
argument).


       In its petition for review, the State identified one issue for this court to take up:
Whether the prosecutor committed reversible error at the hearing on the State's motion to
correct illegal sentence? This advances only a merits based challenge to the prosecutorial
error question. As a result, we hold the State waived review of the panel majority's
conclusion on preservation. See Supreme Court Rule 8.03(a)(4)(C) (Supreme Court will
not consider issues not presented or fairly stated in the petition for review). We express
no opinion whether a contemporaneous objection or other posthearing remedial motion is
required to appeal a prosecutorial error claim arising from a nonjury setting.


                                          ANALYSIS

       To determine what test applies when an appellate court reviews an alleged
prosecutorial error during a sentencing hearing, it is important to understand the protected
right at stake.



                                               9
       Prosecutorial error jurisprudence recognizes a prosecutor's conduct can implicate a
criminal defendant's due process rights to a fair trial under the Fourteenth Amendment to
the United States Constitution. Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L.
Ed. 2d 78 (1982) ("[T]he touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial."); Sherman, 305 Kan. at 97 ("The
jurisprudence surrounding policing prosecutors during trial has historically taken as its
lodestar—in almost all cases—the due process requirements of the Fourteenth
Amendment."). And our prosecutorial error test makes clear that criminal defendants
have a constitutional right to a fair trial. As we explained in Sherman:


       "To determine whether prosecutorial error has occurred, the appellate court must decide
       whether the prosecutorial acts complained of fall outside the wide latitude afforded
       prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that
       does not offend the defendant's constitutional right to a fair trial. If error is found, the
       appellate court must next determine whether the error prejudiced the defendant's due
       process rights to a fair trial." (Emphases added.) Sherman, 305 Kan. at 109.


       Admittedly, the above is cast in terms of the prosecutor's efforts to obtain a
"conviction," but this does not confine prosecutorial error to a trial's guilt phase. One's
fair trial right is equally protected in a penalty phase. See State v. Kleypas, 272 Kan. 894,
1083-84, 40 P.3d 139 (2001) (discussing in a death penalty case review for claimed
prosecutorial misconduct during the penalty phase and holding it "is similar to the
standard applied in the guilt phase."), overruled on other grounds by Kansas v. Marsh,
548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006). So to the extent our caselaw
typically describes prosecutorial error in the guilt-phase context when obtaining a
"conviction" or a "verdict," we must remember our concern is comporting with the due
process right to a fair trial. Those concerns remain for sentencings.



                                                     10
       A review of out-of-state caselaw also shows many states have held prosecutors can
commit error in nonjury settings. See, e.g., Liggett v. People, 135 P.3d 725, 733-35
(Colo. 2006) (defendant had a bench trial and the court analyzed whether prosecutorial
misconduct occurred during closing argument); State v. Mosley, 853 N.W.2d 789, 801-03
(Minn. 2014) (defendant was convicted after a bench trial and the court addressed an
issue of whether prosecutor committed misconduct by eliciting inadmissible character
evidence); Com. v. Francis, 445 Pa. Super. 353, 360-61, 665 A.2d 821 (1995)
(recognizing "trial judges are presumed to ignore prejudicial material when acting as
factfinder"; holding prosecutorial error affected the factfinder at the bench trial); State v.
Kehdy, 120 Hawaii 418, 2009 WL 1805908, at *5-6 (Hawaii App. 2009) (unpublished
opinion) (rejecting State's assertion the prosecutorial misconduct was harmless beyond a
reasonable doubt simply because it was a bench trial); State v. Myers, 2004-Ohio-478,
2004 WL 226105, at *5 (Ohio App. 2004) (unpublished opinion) (considering alleged
prosecutorial error occurring in a bench trial). We are aware of no case with a contrary
holding, nor are we cited to any.


       The Wilson dissent points out some state courts have a distinctive test addressing
circumstances like those we have here. Wilson, 2016 WL 7324427, at *18, citing: Deeds
v. State, 2014 Wyo. 124, 335 P.3d 473, 480 (2014) (defendant's burden to show a due
process violation in the context of a sentencing hearing before the bench by showing "'the
trial court relied upon the [prosecutorial] statements in sentencing'" him); State v.
Tierinni, 144 Conn. App. 232, 240, 71 A.3d 675 (2013) (rejecting traditional test for
prosecutorial impropriety in favor of two-pronged inquiry: "'first, did the information at
issue contain some minimal indicium of reliability; second, if it did not, did the trial court
substantially rely on this improper information in fashioning its ultimate sentence?'");
State v. Rivera, No. 30,836, 2013 WL 4512056, at *4 (N.M. App. 2013) (unpublished
opinion) ("When matters are tried before a judge, we presume the judge has disregarded
improper comments or evidence unless the record clearly indicates otherwise," and "we
                                         11
do not treat [those] issue[s] as a standard prosecutorial misconduct claim."). But despite
their distinct tests, they begin by recognizing prosecutorial error can occur in these
settings.


       We hold prosecutorial missteps may implicate due process rights to a fair trial in
this nonjury context.


       So what test should apply? When the parties argued this appeal to the panel,
Kansas courts referred to claims that a prosecutor's comments denied a defendant's due
process rights to a fair trial as "prosecutorial misconduct." See State v. Barber, 302 Kan.
367, Syl. ¶ 4, 353 P.3d 1108 (2015). The then-effective test was set out in State v. Tosh,
278 Kan. 83, Syl. ¶¶ 1-2, 91 P.3d 1204 (2004). Under Tosh, an appellate court first
decided whether the prosecutor's remark being complained about was outside the wide
latitude allowed in discussing evidence. 278 Kan. at 85. If so, the court made what was
described as a "particularized harmlessness inquiry," assessing three factors: (1) whether
the misconduct was gross and flagrant; (2) whether it showed ill will on the prosecutor's
part; and (3) whether the evidence against the defendant was of such a direct and
overwhelming nature that the misconduct likely had little weight in the jurors' minds. 278
Kan. at 93-96. No factor was individually controlling; but before the third could override
the first two, an appellate court had to be able to say the harmlessness tests of both
K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705
(1967), were met. Tosh, 278 Kan. 83, Syl. ¶ 2.


       As mentioned, while Wilson's appeal was pending with the panel, we modified the
two-step analytical framework for claims that a prosecutor's trial behavior requires
reversal. See Sherman, 305 Kan. at 109. Sherman renamed such claims "'prosecutorial
error,'" saving the pejorative "'prosecutorial misconduct'" label for more egregious


                                             12
transgressions. 305 Kan. at 107, 114; see State v. Chandler, 307 Kan. 657, 695, 414 P.3d
713 (2018).


       Sherman did not disturb the preexisting standard for whether the prosecutorial
action complained about was improper, i.e., the action was outside the wide latitude
afforded prosecutors. 305 Kan. at 104 ("The well-developed body of caselaw defining the
scope of a prosecutor's 'wide latitude' . . . will continue to inform our review of future
allegations of prosecutorial error."). Sherman modified Tosh's second step only:


       "If error is found, the appellate court must next determine whether the error prejudiced
       the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt
       the traditional constitutional harmlessness inquiry demanded by Chapman. In other
       words, prosecutorial error is harmless if the State can demonstrate 'beyond a reasonable
       doubt that the error complained of will not or did not affect the outcome of the trial in
       light of the entire record, i.e., where there is no reasonable possibility that the error
       contributed to the verdict.' We continue to acknowledge that the statutory harmlessness
       test also applies to prosecutorial error, but when 'analyzing both constitutional and
       nonconstitutional error, an appellate court need only address the higher standard of
       constitutional error.' [Citations omitted.]" 305 Kan. at 109.


       In doing so, Sherman further noted:


               "Multiple and varied individualized factors can and likely will affect the
       Chapman analysis in future cases. Every instance of prosecutorial error will be fact
       specific, and any appellate test for prejudice must likewise allow the parties the greatest
       possible leeway to argue the particulars of each individual case. Thus, appellate courts
       should resist the temptation to articulate categorical pigeonholed factors that purportedly
       impact whether the State has met its Chapman burden. Appellate courts must simply
       consider any and all alleged indicators of prejudice, as argued by the parties, and then
       determine whether the State has met its burden—i.e., shown that there is no reasonable
       possibility that the error contributed to the verdict. The focus of the inquiry is on the
                                                     13
       impact of the error on the verdict. While the strength of the evidence against the
       defendant may secondarily impact this analysis one way or the other, it must not become
       the primary focus of the inquiry. As has often been repeated, prejudice can exist even 'in
       a strong case.' [Citation omitted.]" 305 Kan. at 110-11.


       Sherman provides the best measure to evaluate the prosecutorial error in the
context of Wilson's sentencing hearing before a district court judge. To begin with,
Sherman was decided more than two years ago and the parties have had the opportunity
to address its application. See Gaudina v. State, 278 Kan. 103, 106, 92 P.3d 574 (2004)
(changes in the law generally apply to cases not yet final). And we discern no prejudice
to either side by using Sherman. More importantly, the Tosh language for the second
prong unnecessarily diverts attention from the pivotal fair trial inquiry. As Sherman
points out, there is little need to consider whether an error was gross and flagrant or
motivated by ill will because what is paramount for fair trial concerns is defining any
impact from an error on the proceeding's outcome. Sherman, 305 Kan. at 93. That is just
as true in this nonjury setting.


       Wilson's appeal highlights why our move away from the harsher "prosecutorial
misconduct" tag should be helpful. Many times in both the briefing and oral argument,
the State's counsel, who was also the prosecutor at the sentencing hearing, defensively
explained he was not motivated by ill will—even when the questioning was just about the
reasonable possibility the error affected the judge's ruling. And while we appreciate
prosecutors, as public servants, are appropriately sensitive to the "misconduct" label,
these cases are more about the error's potential effect on the outcome than the
prosecutor's professionalism or ethics. That focus should not get lost. Saving the
"misconduct" brand for the most egregious circumstances is intended to avoid such
distractions.



                                                   14
       Applying the Sherman test, we hold the prosecutor was outside the wide latitude
afforded when arguing the State's motion to correct an illegal sentence. We hold further
the State fails to meet its burden to show there is no reasonable possibility this
prosecutorial error contributed to the district court's decision, i.e., the proceeding's
outcome.


       To begin with, the prosecutor's statement that Wilson digitally raped and
sodomized his victim was unsupported by evidence. The police reports referenced by the
dissent are not in the appellate record. But even if they were, their contents were only
allegations—not evidence. And contrary to the dissent's implication, there is no mention
of digital rape or sodomy in the presentence investigation report in the appellate record.


       Apparently, the prosecutor believed it was appropriate for the district court to
consider claims unsupported by evidence in ruling on Wilson's Freeman challenge. If that
were so, that belief was wrong. See State v. Atkisson, 308 Kan. 919, Syl. ¶ 7, 425 P.3d
334 (2018) ("When a discretionary decision requires fact-based determinations, a district
court abuses its discretion when the decision is based on factual determinations
unsupported by the evidence."); State v. Gonzalez, 290 Kan. 747, 757, 234 P.3d 1 (2010)
(same). Similarly, an appellate court employs a bifurcated standard when reviewing a
district court's decision whether a sentence is cruel or unusual under Section 9 of the
Kansas Constitution Bill of Rights. And the first inquiry is whether there is sufficient
support for the district court's factual findings, i.e., substantial competent evidence. State
v. Mossman, 294 Kan. 901, 906, 281 P.3d 153 (2012).


       What the prosecutor did was ask the district court to base its decision on
allegations unsupported by evidence. When a prosecutor argues facts outside the
evidence, the first prong of the prosecutorial error test is met. Chandler, 307 Kan. at 678-
79.
                                              15
       As for the impact of that error, it appears reasonably possible the prosecutor's
prompt pushed the court into considering unsupported allegations rather than evidence.
As the panel majority concluded:


       "[T]he colloquy between the court and the prosecutor shows that before the prosecutor's
       misstatements, the court considered Wilson's specific conduct to be nonviolent. But
       immediately after the prosecutor's misstatements, the court appears to have changed its
       mind. The effect of the prosecutor's words on the district court was thus weighty and
       persuasive." Wilson, 2016 WL 7324427, at *9.


       The majority also correctly points out "the district court would be justified in
relying on the prosecutor's statements of facts and law, particularly where, as here, the
argument at the hearing was prepared by the State in support of its own motion." 2016
WL 7324427, at *8.


       The factual misstatement about the underlying crime is sufficient standing alone to
reverse the district court's decision. For that reason, we need not delve further into the
misstatements about Proctor. Plus, as the dissent appropriately observes, there was no
reference by the district court to Proctor "in any way in evaluating the first Freeman
factor or making [its] ultimate ruling." Wilson, 2016 WL 7324427, at *18.


       That said, we recognize lawyers routinely have different interpretations about a
judicial decision's legal effect, as well as whether meaningful differences in facts
distinguish one case from another. Because of that, circumstances resulting in a claim
that a prosecutor stepped outside appropriate bounds as an advocate when discussing
caselaw to a judge may be harder to sort out on appeal. We need not untangle that bird's
nest in this decision.

                                                  16
       We affirm the Court of Appeals judgment reversing the district court on the issue
subject to review and remand the case to the district court to consider again the
constitutional question, i.e., whether imposing lifetime postrelease supervision on Wilson
would be grossly disproportionate to his offense under Freeman. If Wilson's argument is
unsuccessful, the district court then can decide whether the State may prevail on its
motion to correct an illegal sentence.




                                            17
