                           NOT DESIGNATED FOR PUBLICATION

                                             No. 121,221

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                   v.

                                       JOSHUA JOHN SCHMEAL,
                                             Appellant.


                                    MEMORANDUM OPINION

        Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed July 10, 2020.
Affirmed.


        Kasper Schirer, of Kansas Appellate Defender Office, for appellant.


        Ashley R. Iverson, assistant county attorney, Barry R. Wilkerson, county attorney, and Derek
Schmidt, attorney general, for appellee.


Before STANDRIDGE, P.J., ATCHESON, J., and BURGESS, S.J.


        PER CURIAM: Joshua John Schmeal appeals from his sentence after pleading no
contest to one count of aggravated indecent liberties with a child. In exchange for the
plea, the State agreed to recommend a durational departure to 80% of the low number in
the grid box. Before sentencing, Schmeal moved to withdraw his plea, asserting his
counsel at the time failed to provide copies of the discovery, preventing Schmeal from
making a fully informed decision or understanding the consequences of entering the plea.
After the district court denied the motion, Schmeal moved for a dispositional departure,
but the court ultimately sentenced him in accordance with the plea agreement by granting

                                                   1
a durational departure to 71 months and imposing lifetime postrelease supervision. For
the reasons stated below, we affirm.


                        FACTUAL AND PROCEDURAL BACKGROUND

       After an incident in July 2017 in which Schmeal allegedly had sexual intercourse
with a G.M., a 15-year-old girl, the State charged him with one count of aggravated
indecent liberties with a child, a severity level 3 person felony, and one count of indecent
liberties with a child, a severity level 5 person felony. See K.S.A. 2017 Supp. 21-
5506(a)(1), (b)(1), (c)(1)-(2).


       Schmeal agreed to enter a no contest plea on October 1, 2018, to the aggravated
indecent liberties with a child charge and the State would dismiss the remaining charge.
The State also agreed to recommend a durational departure that would reduce the total
sentence to "80% of the low number in the presumed sentencing grid box" because
Schmeal had accepted responsibility for the offense. Under the plea agreement, Schmeal
was free to request a further durational departure or a dispositional departure to
probation. Along with the plea agreement, Schmeal filed a signed acknowledgement of
rights and entry of plea form that stated he was 21 years old.


       At a plea hearing that day, Schmeal advised the district court he had read and
signed the documents comprising the written plea agreement after discussing it with his
appointed counsel, Seth Brackman. When asked if anyone had made threats or promises
to get him to sign the agreement, Schmeal said, "Nope." When asked if he signed the
agreement freely and voluntarily, Schmeal said, "Yup." After the court recited the charge
Schmeal would be pleading to, Schmeal first said, "Not guilty," but quickly corrected
himself and said, "No, no contest." The State then recited the following factual basis,
"Your Honor, on July 25th, 2017, the victim, [G.M.], was 15 years old. On that July 25th
date the defendant was 20 years old. They met at Fancy Creek State Park here in Riley

                                             2
County, Kansas, and engaged in sexual intercourse." The district court found Schmeal
knowingly, voluntarily, and intelligently entered the plea and accepted the no contest
plea.


Motion to withdraw plea proceedings

        A month later, Brackman moved to withdraw as counsel based on an apparent
conflict with Schmeal. At the hearing on the motion, Brackman explained that Schmeal
wished to withdraw his plea based on Brackman's representation. The district court
granted the motion and later appointed Lora Ingels as defense counsel.


        After sentencing was continued twice, Schmeal moved to withdraw his plea on
January 30, 2019. In the motion he asserted good cause existed to withdraw the plea
because he believed new evidence established an alibi for the offense. He also asserted
Brackman misled him by not allowing adequate time to review the discovery which
hindered his decision whether to accept the plea. The district court held a hearing on the
motion on March 11, 2019.


Schmeal's testimony

        Schmeal testified that Brackman met with him "as many times as [he had] court
dates," and then at the jail "maybe only once to view my discovery for like 45 minutes."
Schmeal requested copies of the discovery "[m]any times" but Brackman advised he
could not give it to him. Schmeal testified that on one occasion, Blackman "literally just
gave [Schmeal] a packet and said here you go. 45 minutes later [Brackman] said he had
to meet another client, and [Schmeal] went back to [his] cell."


        Schmeal testified that Brackman came to him with the plea agreement about four
or five days before the trial and told Schmeal "'here's the plea agreement, this is the best


                                              3
thing you're gonna get, and that you might as well take it or you're looking at a really
long time in prison.'" Schmeal had never asked Brackman to negotiate a plea agreement
because he wanted to go to trial, but he and Brackman disagreed about which path to
take. They spent "10, maybe 15 minutes" discussing the plea agreement before Schmeal
signed it, but Schmeal felt like he did not really have a choice in entering the plea.
Schmeal was not fully able to see all of the discovery until the court appointed Ingels, at
which time he realized he possibly had an alibi defense. Schmeal had these concerns at
the plea hearing but did not voice them to the court because "[he] just thought that if [he]
just listened to [his] lawyer that all would be good."


       On cross-examination, Schmeal testified the main dispute was that he wanted to
argue G.M. consented even though Brackman advised him that did not matter because of
her age. Schmeal said he thought he had a potential alibi because he was at work the day
of the alleged offense. The State reminded him that the alleged crime occurred at night.


       Schmeal told the district court he remembered being asked several questions at the
plea hearing but did not recall his answers. After the court read back the transcript from
that hearing, Schmeal agreed he said "'yes'" to every question. The court asked if he was
lying at the time, to which Schmeal responded "Yes, I did." Schmeal remembered
Brackman going through the plea agreement with him but never actually read it before
signing the agreement.


Brackman's testimony

       Brackman's first meeting with Schmeal at the jail lasted "well over an hour,"
during which time Brackman went through his standard practice of explaining "the entire
process" by "go[ing] through the procedure, . . . through the charges, what those mean,
and what the State has to prove, and then we go to the potential sentences." Brackman
testified plea negotiations began before the preliminary hearing based on email

                                              4
communications from May 2018. The State's original plea offer was for Schmeal to plead
to Count 1, dismiss Count 2, and receive a durational departure of 15 percent. Brackman
could not recall ever having a short conversation with Schmeal. After ongoing
negotiations, Schmeal agreed to waive his right to a preliminary hearing and ultimately
Schmeal and the State reached the final plea agreement.


       Brackman also said he disagreed with Schmeal's testimony about how many times
they had met because he had met with him "at least the week before [the plea hearing]
because we didn't even set the plea date until after I had the signed plea agreement."
Brackman went over the written plea agreement with Schmeal per his standard practice
by presenting the type-written agreement with nearly everything already filled out and
"walk[ing] through page one through four and [going] through every single paragraph
starting with the very top."


       As to Schmeal's testimony about lack of access to discovery, Brackman testified
he informed Schmeal there was not an obligation to "give him a physical copy, but every
single time I told him I have an open file policy." Brackman stated that "as a general
practice" he did not hand over discovery in sex cases "due to the sensitive nature of those
crimes" but he "would always give [defendants] as much time as they wanted." Brackman
said he talked with Schmeal about his video confession often but Schmeal did not want to
view the video. They were able to talk "significantly" about the video because Schmeal
"had a great memory as to what occurred, as to his conversations with the detectives, and
he walked through and was able to go through the incidents as alleged by the officers and
the victim."


       Brackman testified that he remembered discussing whether the incident with G.M.
was consensual, but he explained to Schmeal that the victim's age removed that as a
potential defense. Brackman counseled Schmeal that bringing up consent at the plea
hearing may lead to the district court not accepting his plea, and that Schmeal

                                             5
"[b]egrudgingly" chose to enter the plea. Brackman stated Schmeal was not misled.
Brackman did not recall ever discussing an alibi with Schmeal.


       On cross-examination, Brackman testified that on one occasion he sat with
Schmeal in the library at the jail for about an hour and fifteen minutes. Schmeal had more
than one opportunity to review the discovery and Brackman would allow him to review
the evidence for as long as he wanted. Brackman never had to cut the time short.


       After hearing the testimony and the parties' closing arguments, the district court
denied Schmeal's request to withdraw his plea agreement. The court found that Brackman
was "clearly competent counsel," based partly on the lack of any allegations to the
contrary. The court also did not believe any evidence showed Schmeal was misled or
coerced into entering the plea agreement. Finally, the court noted Schmeal's answers and
demeanor at the plea hearing showed the plea was made fairly and understandingly.
Ingels then asked to set a hearing for sentencing, saying she would be filing a motion for
departure on Schmeal's behalf.


Motion for departure and sentencing

       On March 28, 2019, Schmeal moved for a departure, requesting a downward
dispositional departure sentence or, alternatively, a downward durational and
dispositional departure sentence. The motion asserted several substantial and compelling
reasons existed to warrant departure, including: a psychological evaluation showed
Schmeal did not meet the criteria for a pedophile or sexual predator and was not a danger
to the community, Schmeal's willingness and ability to complete sex offender treatment
therapy, the victim was a willing participant, Schmeal had a supportive family, and the
State agreed to recommend a reduced sentence.




                                             6
       The State responded in a written motion a week later, agreeing that Schmeal's
acceptance of responsibility evidenced by his entering a plea warranted the durational
departure in the plea agreement because the victim would no longer need to testify. The
State opposed any further departures, asserting Schmeal showed no remorse for his
actions, had a previous conviction for a sexually violent crime, that Schmeal's actions
contradicted the psychological evaluation's conclusions that he was not a danger to the
community or acted impulsively, and that the underage victim's participation "is not a
departure factor" because "[s]he lacked the ability to consent."


       The district court held a sentencing hearing on April 8, 2019, first finding
Schmeal's criminal history score to be a D with no objections. Schmeal's counsel
reiterated the arguments in the departure motion, asking the court to follow the plea
agreement "at a minimum" but also requested a dispositional departure or to reduce his
sentence to a period of 40 months. The State asked the court to follow the plea agreement
and reasserted the arguments in its motion, stressing that this was Schmeal's second
conviction for a sexually violent offense and that the underage victim's consent was not a
departure factor.


       Ultimately, the court denied most of the departure request, finding it did not
believe substantial and compelling reasons existed to warrant a dispositional departure.
The court specifically stated, "As it relates to your request for a dispositional departure,
the Court does not believe that there [have] been compelling reasons either in the facts of
the case, or in your motion, or in Dr. Barnett's report to justify a dispositional departure;
therefore, it will be denied." In turn, the court followed the plea agreement by imposing a
71-month prison sentence and a lifetime postrelease supervision term.


       Schmeal timely appealed.




                                              7
                    DID THE DISTRICT COURT ABUSE ITS DISCRETION
              WHEN IT DENIED SCHMEAL'S MOTION TO WITHDRAW HIS PLEA?

       Schmeal argues the district court erred by refusing to let him withdraw his plea
before sentencing. He contends his counsel provided lackluster performance by failing to
allow him to review discovery, thus preventing Schmeal from making informed decisions
about his case or fully understanding the consequences of entering the plea.


       Before sentencing, a district court may permit a defendant to withdraw his or her
guilty or no contest plea "for good cause shown and within the discretion of the court."
K.S.A. 2019 Supp. 22-3210(d)(1). Schmeal bears the burden of establishing good cause
and to show that the court abused its discretion in denying the motion. See State v.
DeAnda, 307 Kan. 500, 503, 411 P.3d 330 (2018). In reviewing for an abuse of
discretion, this court will not reweigh evidence or reassess witness credibility. State v.
Edwards, 309 Kan. 830, 836, 440 P.3d 557 (2019). A judicial action constitutes an abuse
of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of
law; or (3) it is based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d
931 (2018).


       As both parties note, Kansas appellate courts will consider three factors—often
called the Edgar factors—when considering whether a defendant has shown the requisite
good cause to withdraw a plea prior to sentencing: (1) whether the defendant was
represented by competent counsel; (2) whether the defendant was misled, coerced,
mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and
understandingly made. State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). These
factors establish "'viable benchmarks'" for the district court when exercising its discretion
and should not be applied mechanically or to the exclusion of other facts that might exist
in a particular case. State v. Schaefer, 305 Kan. 581, 588, 385 P.3d 918 (2016).




                                                8
First Edgar factor

       Under the first Edgar factor the level of competence a defendant must show
differs based on the timing of the motion to withdraw plea. See State v. Watie, No.
119,067, 2019 WL 6794881, at *5 (Kan. App. 2019) (unpublished opinion) (noting
courts use the same Edgar factors to evaluate both pre- and postsentencing motions to
withdraw plea but apply a heightened standard on the competence factor), petition for
rev. filed January 13, 2020. When a defendant moves to withdraw their plea before being
sentenced, the defendant must show the representation amounts to "lackluster advocacy,"
a less demanding standard than the level of incompetence required to violate the Sixth
Amendment right to counsel. See Schaefer, 305 Kan. at 589. The Kansas Supreme Court
has not expressly defined what conduct qualifies as lackluster advocacy, but it would
presumably be easier to prove than the manifest injustice standard required to support a
postsentencing motion to withdraw a plea.


       Schmeal asserts Brackman's representation was lackluster because he violated
Schmeal's statutory right to receive copies of discovery, as discussed in State v. Marks,
297 Kan. 131, 148, 298 P.3d 1102 (2013). Schmeal's argument that the district court
committed legal error in this respect is unpersuasive.


       In Marks, the Kansas Supreme Court held "K.S.A. 22-3212 and K.S.A. 22-3213
unambiguously require disclosure [of copies of discovery and witness statements] to the
defendant." (Emphasis added.) 297 Kan. at 148. The Marks court paid particular attention
to the language in those statutes identifying "the defendant" as the party entitled to review
discovery, noting "[n]either K.S.A. 22-3212 nor K.S.A. 22-3213 leave room for
interpretation as to who 'the defendant' is because the meaning can be readily ascertained
by the plain language—the defendant is the person who is charged with the crime." 297
Kan. at 147. Yet despite the statutory error, the Marks court ultimately held that "[a]
defendant's right to assistance in his or her defense does not translate to a constitutional

                                              9
right to personal copies of discovery, particularly when that discovery was already
provided to his or her attorney. [Citations omitted.]" (Emphasis added.) 297 Kan. at 149.


       The current version of the statute last amended in 2014 substitutes "defendant" in
nearly all instances with "defense." L. 2014, ch. 34, § 1, eff. July 1, 2014. Under
language of the current version of the statutes, the State was only required to provide the
defense with copies of discovery and Schmeal readily admits that his counsel had access
to discovery. As a result, Schmeal has not shown any legal error resulted from any
violation of either K.S.A. 2017 Supp. 22-3212 or K.S.A. 2017 Supp. 22-3213.


       The discovery statutes cited by Schmeal—K.S.A. 2017 Supp. 22-3212 and K.S.A.
2017 Supp. 22-3213—only govern mandatory disclosure of discovery by the State after a
defense request. At no point in his brief does Schmeal identify any discovery requests
that the State ignored. Schmeal's only claim of error seems to be that Brackman failed to
provide copies of the discovery to him. Schmeal provides no authority that required
Brackman to do so.


       In all events, Schmeal fails to overcome the constitutional harmlessness test used
in Marks. Just as in those cases, Schmeal had no constitutional right to personal copies of
discovery, "particularly when that discovery was already provided to his or her attorney."
Marks, 297 Kan. at 149.


       Schmeal also contends his testimony that Brackman never provided him with
copies of the discovery was "uncontroverted," thus establishing lackluster advocacy and
good cause to withdraw the plea. Brackman's testimony admittedly does show that
Schmeal never received his own physical copies of the discovery documents, but as
Brackman also testified, he had an "open file policy" that allowed Schmeal to review the
discovery for "as much time as [he] wanted." Despite Schmeal's testimony that he only
got to review discovery at one meeting for 45 minutes, Brackman testified that particular

                                             10
meeting lasted "closer to an hour and 15 [minutes]" and that Schmeal had multiple other
opportunities to review the discovery.


       When rendering its decision, the district court specifically found on the first Edgar
factor that Brackman "was clearly competent counsel." This finding suggests the court
found Brackman's testimony about Schmeal's access to discovery to be more credible.
This court does not reweigh evidence or make witness credibility determinations. See
Edwards, 309 Kan. at 836. Simply put, beyond disagreeing with the district court's
conclusion, Schmeal offers no persuasive argument suggesting the district court abused
its discretion by concluding Brackman provided competent representation.


Second and third Edgar factors


       As for the remaining Edgar factors, Schmeal argues that lack of access to
discovery coerced him into making a plea that was not fairly and understandingly made.
There is no evidence Brackman failed to comply with any statute or other law requiring
disclosure of discovery to Schmeal and the record shows Brackman confirmed Schmeal
had ample access to discovery. Beyond conclusory assertions and referencing his own
self-serving testimony, Schmeal provides nothing that would establish error in the district
court's conclusions relating to his decision to enter the plea.


       Schmeal also briefly asserts that his testimony shows he did not have enough time
to review the plea agreement to fully understand it and that he did not realize he was
giving up potentially valid defenses by entering the plea. As with his other assertions, the
record refutes both claims. Brackman testified at the hearing on Schmeal's motion to
withdraw plea that plea negotiations began early in the case and Schmeal actively
participated in the negotiation process. There is no evidence of any valid defense that
Schmeal gave up. Brackman testified he reviewed every aspect of the written agreement
with Schmeal before he signed it.

                                              11
       Brackman and Schmeal both testified the only defense they disagreed on involved
G.M.'s supposed consent, which Brackman continually advised Schmeal was irrelevant
since she was a minor. As for a potential alibi defense, after Brackman was replaced as
counsel and Schmeal claims he was finally able to review the discovery, Schmeal said he
realized he was at work on the day of the alleged incident. As the State pointed out—and
Schmeal acknowledged immediately thereafter—the alleged incident occurred at night.


       Schmeal simply fails to provide a persuasive argument on appeal that the district
court abused its discretion in concluding there was not good cause to withdraw his plea.


                   DID THE DISTRICT COURT ABUSE ITS DISCRETION
               IN DENYING A MOTION FOR A DISPOSITIONAL DEPARTURE?


       Schmeal next argues the district court abused its discretion in declining to grant
his request for a dispositional departure. He asserts it was unreasonable for the court to
deny his request for probation since he presented several substantial and compelling
reasons warranted a departure.


Jurisdiction


       The State contends this court lacks jurisdiction to consider Schmeal's claim
because his sentence was within the presumptive guidelines sentence. See K.S.A. 2017
Supp. 21-6820(c)(1). Whether jurisdiction exists is a question of law over which
appellate courts exercise unlimited review. State v. Smith, 304 Kan. 916, 919, 377 P.3d
414 (2016).


       The revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2017 Supp. 21-
6801 et seq., defines a defendant's right to appeal from his or her sentence. Any departure
sentence is appealable by the defendant or the State. K.S.A. 2017 Supp. 21-6820(a).


                                             12
However, "the appellate court shall not review: (1) [a]ny sentence that is within the
presumptive sentence for the crime." K.S.A. 2017 Supp. 21-6820(c)(1). The KSGA
defines "'presumptive sentence'" as "the sentence provided in a grid block for an offender
classified in that grid block by the combined effect of the crime severity ranking of the
offender's current crime of conviction and the offender's criminal history." K.S.A. 2017
Supp. 21-6803(q). K.S.A. 2017 Supp. 21-6820(c)(2) provides that appellate courts will
not review "any sentence resulting from an agreement between the state and the
defendant which the sentencing court approves on the record."


       The State incorrectly asserts that Schmeal received a presumptive sentence. Based
on his D criminal history score and the severity level 3 offense, he faced a presumptive
prison sentence between 89 and 100 months. See K.S.A. 2017 Supp. 21-6804. The
district court sentenced him to only 71 months in prison which is a 20% reduction of the
lower grid box number as agreed to by the parties. Although Schmeal received a prison
sentence, the total length is clearly a durational departure.


       Schmeal correctly points out, the Kansas Supreme Court has considered the issue
of whether a denied dispositional departure is appealable when the district court
durationally departed under the terms of a plea agreement. See State v. Looney, 299 Kan.
903, 327 P.3d 425 (2014). In that case, the district court granted a downward durational
departure under the plea agreement but denied a dispositional departure request by the
defendant. After a panel of this court determined that appellate jurisdiction was lacking,
our Supreme Court reversed, holding that "all departure sentences are subject to appeal
under K.S.A. 21-4721(a) unless appellate jurisdiction is divested by a more specific
provision." 299 Kan. at 909. The Kansas Supreme Court noted that although the parties
agreed to a downward durational departure, the defendant's requested dispositional
departure was not part of the plea agreement. 299 Kan. at 909. As a result, the court
determined it had jurisdiction to consider the defendant's appeal. 299 Kan. at 909-10. But
see State v. Cooper, 54 Kan. App. 2d 25, 28, 394 P.3d 1194 (2017) (noting that defendant

                                              13
received "the precise sentence he requested" and thus holding that "K.S.A. 2016 Supp.
21-6820[c][2] divests this court of jurisdiction").


       The facts here are essentially identical to Looney. The parties made no agreement
on a dispositional departure other than Schmeal was free to make the request and the
State would oppose it. Since the district court denied Schmeal's request for probation but
granted the parties' joint request for a durational departure to 71 months' imprisonment,
Schmeal received a departure sentence. Although Schmeal's sentence reflected the plea
agreement, this court has jurisdiction to review his claim. See Looney, 299 Kan. at 908-
09.


Standard of review


       This court reviews a district court's decision to deny a departure motion for an
abuse of discretion, "measuring whether the departure is consistent with the purposes of
the guidelines and proportionate to the crime severity and the defendant's criminal
history." State v. Spencer, 291 Kan. 796, 807-08, 248 P.3d 256 (2011). A judicial action
constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is
based on an error of law; or (3) it is based on an error of fact. Ingham, 308 Kan. at 1469.
The party asserting the district court abused its discretion bears the burden of showing the
abuse of discretion. State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).


Analysis


       Under K.S.A. 2017 Supp. 21-6815(a), a district court "shall impose the
presumptive sentence . . . unless the judge finds substantial and compelling reasons to
impose a departure sentence." "Substantial" means something real, not imagined;
something with substance, not ephemeral. "Compelling" means that the court is forced,


                                               14
by the facts of the case, to leave the status quo or go what is beyond ordinary. State v.
Reed, 302 Kan. 227, 250, 352 P.3d 530 (2015).


       The Legislature also provided a nonexclusive list of mitigating factors that a court
may consider when determining whether substantial and compelling reasons for a
departure exist. See K.S.A. 2017 Supp. 21-6815(c)(1). The statutory mitigating factors
include whether "the victim was an aggressor or participant in the criminal conduct
associated with the crime of conviction." K.S.A. 2017 Supp. 21-6815(c)(1)(A).


       In this appeal, Schmeal does not suggest the district court rejected any of his
proffered mitigating factors as either factually unsupported or legally meritless. The
district court specifically stated it considered all the claims made in Schmeal's motion and
the facts of the case. Rather, he contends simply that the district court's decision not to
grant a dispositional departure was unreasonable. The record is clear that the court
considered Schmeal's claims and chose to depart only durationally.


       The State argued at the hearing that Schmeal's prior juvenile conviction for a
sexually violent crime contradicted his claims that he was not a sexual predator or a
threat to the community, or that the victim's alleged participation was not a factor that
could support departure. In its written response, the State had also argued that Schmeal
showed no remorse and that his actions or previous conviction did not support the
psychological report's conclusion that he acted impulsively.


       Schmeal focuses only the mitigating factors he presented. He essentially is asking
this court to substitute its own assessment of the record rather than reviewing the district
court's decision for an abuse of judicial discretion. A court exercising its discretion to
grant a durational departure does not mean a dispositional departure was also warranted.
See State v. Allen, No. 118,774, 2019 WL 986038, at *2 (Kan. App.) (unpublished
opinion), rev. denied 310 Kan. 1063 (September 27, 2019). Simply put, Schmeal fails to

                                              15
show that no reasonable person could have reached the same conclusion as the district
court based on the factors identified by the court.


                   DID THE DISTRICT COURT ENGAGE IN JUDICIAL
       FACT-FINDING TO EXTEND SCHMEAL'S POSTRELEASE SUPERVISION PERIOD?

       Schmeal argues for the first time on appeal that the lifetime postrelease
supervision portion of his sentence is unconstitutional under Apprendi v. New Jersey, 530
U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) ("Other 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.").
Whether a district court violates a defendant's constitutional rights at sentencing as
described under Apprendi raises a question of law subject to unlimited review. State v.
Dickey, 301 Kan. 1018, 1036, 350 P.3d 1054 (2015). Schmeal correctly asserts this court
can consider these claims for the first time on appeal because they are purely legal
questions based on undisputed facts. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095
(2014).


       Schmeal argues for the first time on appeal that the district court engaged in
improper judicial fact-finding under Apprendi, 530 U.S. at 490. A person must be
sentenced in accordance with the sentencing provisions in effect when the crime was
committed. State v. McLinn, 307 Kan. 307, 337, 409 P.3d 1 (2018). In the complaint,
Schmeal was alleged to have committed his crime in July 2017, so it was the newly
amended version of K.S.A. 2017 Supp. 22-3717(d)(1)(G) that applied to his convictions.
See L. 2017, ch. 62, § 10. This subsection of the statute provides:


               "(d)(1) Persons sentenced for crimes, other than off-grid crimes, committed on or
       after July 1, 1993, or persons subject to subparagraph (G), will not be eligible for parole,
       but will be released to a mandatory period of postrelease supervision upon completion of
       the prison portion of their sentence as follows:

                                                    16
               ....
               "(G)(i) Except as provided in subsection (u), persons sentenced to imprisonment
       for a sexually violent crime committed on or after July 1, 2006, when the offender was 18
       years of age or older, and who are released from prison, shall be released to a mandatory
       period of postrelease supervision for the duration of the person's natural life.
               "(ii) Persons sentenced to imprisonment for a sexually violent crime committed
       on or after the effective date of this act, when the offender was under 18 years of age, and
       who are released from prison, shall be released to a mandatory period of postrelease
       supervision for 60 months, plus the amount of good time and program credit earned and
       retained pursuant to K.S.A. 21-4722, prior to its repeal, or K.S.A. 2017 Supp. 21-6821,
       and amendments thereto." (Emphases added). K.S.A. 2017 Supp. 22-3717(d)(1)(G).


       In 2017, Schmeal's crime of conviction—aggravated indecent liberties with a child
—was statutorily defined as a "sexually violent crime" for purposes of imposing
postrelease supervision. See K.S.A. 2017 Supp. 22-3717(d)(5)(C). The Kansas Supreme
Court has held that a plea of guilty to a statutorily defined sexually violent crime provides
a lawful basis to impose an extended postrelease supervision period without resort to the
type of court-made factual findings disapproved by Apprendi and State v. Gould, 271
Kan. 394, 23 P.3d 801 (2001). State v. Walker, 275 Kan. 46, 51, 60 P.3d 937 (2003). But
Schmeal does not challenge the district court's findings that his crimes were sexually
violent or that his extended term of postrelease supervision is inappropriate or illegal
based on the fact that his crime of conviction was for a sexually violent crime. Instead, he
argues the district court improperly determined he was 18 years or older in order to
enhance his sentence of postrelease supervision from a term of months to lifetime without
either (1) proving his age to a jury beyond a reasonable doubt or (2) obtaining a waiver
from him relinquishing his right to have the State prove his age to a jury beyond a
reasonable doubt. We are not persuaded by Schmeal's argument.


       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


                                                    17
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."
530 U.S. at 490. The "'statutory maximum' for Apprendi purposes 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 record in this case reflects that Schmeal formally acknowledged his age to the
district court on numerous occasions throughout the proceedings, which necessarily
renders the fact that he was at least 18 years old when he committed the crime at issue
here a factual admission that does not come within the protection of the Apprendi rule. In
the written plea-agreement he submitted to the court, Schmeal admitted he was 21 years
old when he signed the agreement, which would have made him 19 years old at the time
he committed the crime of conviction. When the State made its proffer of facts in
response to Schmeal's no contest plea, his age was included in that proffer. When the
district court accepted the proffer—without any objection from Schmeal—and found
Schmeal guilty of committing the charged offense, those proffered facts became part of
the record. A review of the record also reflects that Schmeal provided his age in the
written financial affidavit he signed seeking court appointed counsel. Given Schmeal's
repeated admissions throughout the proceedings about his age, the district court's finding
that he was at least 18 years old when he committed the crime of conviction falls under
the Blakely exception to the Apprendi rule when the defendant admits a fact. 542 U.S. at
303 (fact established by guilty plea).


       Both parties recognize that another panel of this court considered the issue
presented here in State v. Cook, No. 119,715, 2019 WL 3756188, at *2 (Kan. App. 2019)
(unpublished opinion), petition for rev. filed September 9, 2019.


              "[Cook's] argument ignores some fundamental points of law. The '"statutory
       maximum" for Apprendi purposes is the maximum sentence a judge may impose solely

                                                18
       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). Then, in
       United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), the
       United States Supreme Court recognized an exception to the Apprendi rule when the
       defendant admits a fact. 543 U.S. at 244. We have admissions by Cook that lead us to
       conclude that there is no Apprendi violation here." 2019 WL 3756188, at *2.


       Although Cook was an unpublished decision, two recent panels have found this
rationale persuasive. See State v. Zapata, 120,529, 2020 WL 741486, at *8-9 (Kan. App.
2020) (unpublished opinion), petition for rev. filed March 5, 2020; State v. Haynes,
120,533, 2020 WL 741458, at *2-3 (Kan. App. 2020) (unpublished opinion), petition for
rev. filed March 5, 2020. While these unpublished decisions are not binding on this
court's decision, we find the analysis set forth in all three decisions to be persuasive.


       Because Schmeal repeatedly admitted his age before the district court imposed
lifetime postrelease supervision under the applicable statute, we necessarily conclude
Schmeal was not deprived of his constitutional right under Apprendi to have the State
prove his age to a jury beyond a reasonable doubt or to have the State obtain a waiver
from him voluntarily relinquishing his right to jury trial on the issue of age for purposes
of imposing lifetime postrelease supervision.


       To the extent that Schmeal argues that lifetime postrelease supervision is a
departure sentence based on his age, we also are unpersuaded. A sentencing court may
depart from a statutory presumptive sentence only after a finding of substantial and
compelling reasons to modify an offender's sentence. In this case, the statutory
presumptive sentence is lifetime postrelease supervision based on Schmeal's admission
that he was 18 years or older when he committed the crime of conviction. There was no
requirement that the sentencing court find substantial and compelling reason to impose it.
See Haynes, 2020 WL 741458, at *3.


                                                    19
       Alternatively, even if we had found an Apprendi error based on the State's failure
to prove Schmeal's age to a jury beyond a reasonable doubt (or to have the State obtain a
waiver from him voluntarily relinquishing his right to jury trial on the issue of age), such
an error is not structural but instead subject to a harmless error analysis.


       In Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466
(2006), the United States reviewed a case based on the premise that Apprendi-type error
could never be harmless. Like the one here, the facts presented in Recuenco involved
application of Apprendi to a sentencing enhancement, as opposed to the statutory element
of the underlying criminal act. Recuenco was charged with assault with a deadly weapon,
specifically a handgun. The special verdict form returned by the jury found a deadly
weapon involved, but it failed to make the specific finding of a handgun. The trial court
imposed a 3-year sentence enhancement for use of a gun instead of the 1-year sentence
enhancement that applied to use of a deadly weapon.


       In analyzing the issue, the United States Supreme Court looked to Neder v. United
States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), a pre-Apprendi case in
which the trial court had taken the issue of materiality from the jury in a trial involving
tax fraud. The Neder Court concluded that refusing to instruct on the element of
materiality on the fraud charges was erroneous. 527 U.S. at 8. Nonetheless, the Neder
Court held the error was not of the type that it had previously found to be "structural
error," the type of fundamental constitutional error which is so intrinsically harmful as to
require automatic reversal. 527 U.S. at 8, 9-16. In discussing the applicability of the
holdings in Neder and Apprendi, the Recuenco Court said:


       "The State and the United States urge that this case is indistinguishable from Neder. We
       agree. Our decision in Apprendi makes clear that '[a]ny possible distinction between an
       “element” of a felony offense and a “sentencing factor” was unknown to the practice of
       criminal indictment, trial by jury, and judgment by court as it existed during the years


                                                   20
       surrounding our Nation's founding.' 530 U.S., at 478 (footnote omitted). Accordingly,
       we have treated sentencing factors, like elements, as facts that have to be tried to the
       jury and proved beyond a reasonable doubt. Id., at 483-484. The only difference
       between this case and Neder is that in Neder, the prosecution failed to prove the element
       of materiality to the jury beyond a reasonable doubt, while here the prosecution failed to
       prove the sentencing factor of 'armed with a firearm' to the jury beyond a reasonable
       doubt. Assigning this distinction constitutional significance cannot be reconciled with
       our recognition in Apprendi that elements and sentencing factors must be treated the
       same for Sixth Amendment purposes." Recuenco, 548 U.S. at 220.


       Critical to our analysis here, the Recuenco Court went on to conclude that
"[f]ailure to submit a sentencing factor to the jury, like failure to submit an element to the
jury, is not structural error." 548 U.S. at 222.


       Both before and after the United States Supreme Court decision in Recuenco, our
Kansas Supreme Court recognized that an Apprendi error may be subject to harmless
error review. See State v. Reyna, 290 Kan. 666, 681-82, 234 P.3d 761 (2010) (applying
Neder framework to find Apprendi-type error harmless), cert. denied 562 U.S. 1014
(2010); State v. Daniels, 278 Kan. 53, 64-65, 91 P.3d 1147 (noting decisions of United
States Supreme Court have clarified that Apprendi errors are subject to harmless error
review), cert. denied 543 U.S. 982 (2004).


       Having concluded that the failure to have a jury determine a sentencing
enhancement fact may be a constitutional error but that the error does not automatically
entitle a defendant to a reversal, we turn now to a harmless error analysis. We begin with
a review of the record to determine whether there was clear evidence which would serve
as a basis for a finding of Schmeal's age at the time of the offense. A reviewing court
must determine whether the record contains evidence that would lead to a contrary
finding regarding the defendant's age. Reyna, 290 Kan. at 680. If the answer to that
question is "no," any error in not submitting the issue of defendant's age to a jury may be

                                                    21
held harmless. 290 Kan. at 680. Here, Schmeal has failed at every stage of these
proceedings, including this appeal, to challenge the accuracy of the facts in the record
reflecting he was at least 18 years of age at the time of his offense. The record is void of
any conflicting evidence regarding his age and, as has been established, the record is
clear he was at least 18 years old at the time of his offense. Even assuming that an
Apprendi-type error existed based on his age not being submitted to a jury for
determination, we conclude any such error is harmless. See Recuenco, 548 U.S. 212
(failure to prove an enhanced sentencing factor to the jury beyond a reasonable doubt is
an Apprendi-type error subject to harmless error review); Reyna, 290 Kan. at 681-82)
(applying Recuenco, Neder, and Daniels framework to find Apprendi-type error
harmless).


       Affirmed.


                                            ***
       ATCHESON, J., concurring in part and dissenting in part: Defendant Joshua John
Schmeal has challenged various aspects of his no contest plea and sentencing in the Riley
County District Court on a single count of aggravated indecent liberties with a child
stemming from his sexual encounter with a 15-year-old girl. I respectfully dissent from
that part of the majority opinion upholding the district court's decision to place Schmeal
on lifetime postrelease supervision—punishment that cannot be imposed in this case
because he did not waive his constitutional right to have a jury determine his age as a
necessary fact triggering that sentencing enhancement.


       Schmeal has marshalled cases the United States Supreme Court and the Kansas
Supreme Court have decided during the last 20 years limiting judicial fact-finding in
sentencing in deference to criminal defendants' jury trial rights protected in the Sixth
Amendment to the United States Constitution. He has augmented that authority with
Kansas Supreme Court cases governing how a criminal defendant must waive those jury

                                             22
trial rights and the legal impact of an ineffective or missing waiver. Those cases
collectively require that Schmeal's lifetime postrelease supervision be vacated and likely
replaced with 60 months of postrelease supervision. The result is almost certainly an
unintended consequence. And it may be fairly characterized as stupefying; I consider it to
be so, as I explain. But I am obligated (and constrained) to apply controlling authority
and to render a decision consistent with that authority for better or worse.


       The majority affirms lifetime postrelease supervision for Schmeal through the
simple expedient of avoiding his jury waiver issue and argument. Instead, the majority
addresses and rejects only Schmeal's alternative argument that he did not make a binding
admission as to his age—a different, though related, issue that lends itself to a different
result. Although the majority's outcome may be more palatable in this case, the approach
disserves the process of judicial decision-making generally.


       I do, however, agree we should affirm the district court in denying both Schmeal's
motion to withdraw his no contest plea and his request for a dispositional departure.
Those are decisions entrusted to the district court's sound discretion, and there was no
abuse of that broad authority here.


       I now turn to Schmeal's challenge to the postrelease supervision component of his
sentence. In the first of three analytical segments, I set out Schmeal's argument as to why
his failure to waive his right to have a jury make the factual finding triggering lifetime
postrelease supervision requires that the punishment be vacated. And I explain why
controlling case authority mandates that outcome, as he suggests. In the second segment,
I briefly amplify on how the majority misfires in dealing with Schmeal's point. Finally, I
outline my consternation with the legal authority governing the remedy for an ineffective
waiver and suggest that a more appropriate remedy would allow Schmeal to either
exercise or waive that right.


                                             23
       In a nutshell, this is Schmeal's theory:


       (1) In a criminal case, the Sixth Amendment requires the prosecution to prove to a
jury any fact that increases punishment above a statutory minimum or maximum, unless
the defendant waives that right or stipulates to the particular fact in conjunction with a
plea. Lifetime postrelease supervision is a form of punishment subject to that rule. (2) In
2017, the Kansas Legislature amended K.S.A. 22-3717, so that defendants convicted of
certain forms of aggravated indecent liberties or other sex crimes would be placed on
lifetime postrelease supervision if they were at least 18 years old at the time of the crime
and 60 months of postrelease supervision if they were less than 18 years old. That change
applies to Schmeal and makes his age a fact that increases punishment. (3) Defendants
entering pleas have to be informed of and waive their right to jury trial. A defendant must
be specifically advised of the right to have a jury determine a fact that increases the
potential punishment for the crime to which he or she is pleading and must expressly
waive that jury trial right. Schmeal was neither informed of that right nor waived it. (4)
The remedy for an ineffective waiver is to vacate the resulting sentence and to remand to
the district court for resentencing without considering the fact that would increase the
statutory punishment. For Schmeal, the remedy would require that he be placed on
postrelease supervision for 60 months rather than for the rest of his life.


       In the bullet points that follow, I lay out the facts drawn from the record in this
case and the legal authorities that support Schmeal's theory. They ineluctably require us
to vacate the lifetime postrelease supervision because Schmeal's waiver of jury trial was
deficient. But as I later explain, the linchpin case defining the remedy for an inadequate
jury waiver is ill-conceived, since it affords gratuitous relief untailored to the actual
injury and inevitably leads the sort of unsatisfactory outcome I believe is mandated here.


       ⦁ In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d
435 (2000), the United States Supreme Court held that any fact other than an earlier

                                              24
conviction that would elevate a criminal defendant's sentence above a statutory maximum
punishment must be submitted to a jury and proved beyond a reasonable doubt. The rule
entails a specific application of the Sixth Amendment right to jury trial. Four years later,
the Court highlighted a corollary (and two exceptions) to the Apprendi rule: "When a
defendant pleads guilty, the State is free to seek judicial sentence enhancements so long
as the defendant either stipulates to the relevant facts or consents to judicial factfinding."
Blakely v. Washington, 542 U.S. 296, 310, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
The defendant's admission obviates the need for judicial fact-finding, since the district
court may rely on the admission itself. Similarly, a defendant's consent to judicial fact-
finding simply recognizes a waiver of the jury trial right from Apprendi by identifying the
resulting process rather than right relinquished. A decade later, the Court expressly
extended Apprendi to require that a jury find facts triggering an increase in a mandatory
minimum sentence. Alleyne v. United States, 570 U.S. 99, 103, 133 S. Ct. 2151, 186 L.
Ed. 2d 314 (2013). Those cases provide the core principles upon which Schmeal builds
his argument.


       ⦁ Postrelease supervision is a form of punishment. The Kansas Supreme Court has
recognized its imposition implicates the rule of Apprendi and the iteration of that rule in
later cases to the extent the statutory regimen relies on factual findings. See State v.
Walker, 275 Kan. 46, 48, 60 P.3d 937 (2003); State v. Anthony, 273 Kan. 726, 727-28, 45
P.3d 852 (2002). In Walker, the defendant was convicted of what was at the time a
severity level 3 violation of K.S.A. 21-3504 for aggravated indecent liberties with a child.
For purposes of postrelease supervision, the offense was statutorily defined as a "sexually
violent crime." Based on that classification, a district court could extend the standard
period of postrelease supervision from 36 months to 60 months. The court found no
Apprendi violation because any increase rested on the conviction itself and required no
additional or independent factual finding. 275 Kan. at 51.




                                              25
        ⦁ The Kansas Legislature has repeatedly amended the sentencing statutes
governing sex crimes and postrelease supervision in the years since Walker and Anthony
were decided. Schmeal pleaded no contest to what is commonly known as statutory rape,
a form of aggravated indecent liberties with a child, a severity level 3 violation of K.S.A.
2017 Supp. 21-5506(b)(1). The crime is statutorily defined as: "Sexual intercourse with a
child who is more than 14 years of age but less than 16 years of age." K.S.A. 2017 Supp.
21-5506(b)(1). The age of the perpetrator is not an element of the crime. See PIK Crim.
4th 55.120.


        In 2017, the Legislature amended K.S.A. 22-3717(d)(1)(G) to create two tiers of
postrelease supervision for defendants convicted of sexually violent crimes. One tier
requires lifetime postrelease supervision if the perpetrator was at least 18 years of age at
the time of the crime. K.S.A. 2017 Supp. 22-3717(d)(1)(G)(i). The other mandates
postrelease supervision for 60 months if the perpetrator was less than 18 years old.
K.S.A. 2017 Supp. 22-3717(d)(1)(G)(ii). The standard period of postrelease supervision
for a severity level 3 felony is 36 months regardless of the perpetrator's age. K.S.A. 2017
Supp. 22-3717(d)(1)(A). The 2017 amendment applies to Schmeal and plainly invokes a
defendant's Sixth Amendment jury trial rights as recognized in Apprendi and Alleyne.
Age is a fact that enhances the term of postrelease supervision for a defendant convicted
of a sexually violent crime, such as statutory rape, from 60 months to life. Defendants,
including Schmeal, have a right to have that fact proved beyond a reasonable doubt to a
jury.


        ⦁ In State v. Duncan, 291 Kan. 467, 467-68, 243 P.3d 338 (2010), the Kansas
Supreme Court held that district courts must specifically advise criminal defendants of
their Sixth Amendment right to have a jury determine a fact that may increase the
statutory punishment for their crimes of conviction. In turn, a defendant also must
expressly waive that particular right. A general waiver of the right to a jury trial is legally
insufficient for that purpose. 291 Kan. at 472-73. The court recognized a proper waiver

                                              26
effectively encompassed an informed agreement to judicial fact-finding in place of a jury
determination, as outlined in Blakely. Duncan, 291 Kan. at 471-72; see Blakely, 542 U.S.
at 310.


          In Duncan, the district court imposed an upward durational departure—extending
the defendant's term of imprisonment beyond the sentencing guidelines—based on
aggravating facts it found, thereby violating Apprendi. The Kansas Supreme Court
vacated the enhanced sentence because Duncan had not made an informed and, thus,
valid waiver of his constitutional jury trial right.


          The rule from Duncan applies here in that Schmeal had a Sixth Amendment right
to have a jury determine his age as a fact that increased the punishment he faced,
extending his postrelease supervision from 60 months to the remainder of his life. The
record shows Schmeal was neither informed of that right and nor waived it.


          Along with a plea agreement, Schmeal signed an acknowledgment of rights that
stated, in part, that by entering a plea, he would be "giving up. . . [t]he right to a speedy
trial before a judge or jury. . . [and] to require the state of Kansas to prove, beyond a
reasonable doubt, all of the charges against me before I could be found guilty." The
Duncan court held that sort of general language was legally insufficient to explain
Apprendi rights or to secure their waiver. 291 Kan. at 472-73. In a separate paragraph, the
acknowledgment form stated the district court had the authority to "make certain
findings" that could result in "a longer or shorter sentence than the presumptive
sentence." That statement actually conflicted with and misrepresented Schmeal's rights
under Apprendi. At the plea hearing, the district court simply established that Schmeal
had read, signed, and understood the plea agreement and the acknowledgment of rights.
The district court did not endeavor to independently explain to Schmeal his jury trial
rights or to obtain a waiver of them.


                                               27
       The record, therefore, demonstrates Schmeal was not informed of his right to have
a jury find the fact (his age or more accurately that he was at least 18 years old when he
committed the crime) that would increase the term of postrelease supervision from 60
months to life. And the record shows he did not in any way waive that right. Consistent
with Duncan, the absence of an informed waiver from Schmeal violated his Sixth
Amendment right to a jury trial. And it impaired his constitutionally protected due
process rights. See State v. Horn, 291 Kan. 1, 11, 238 P.3d 238 (2010) (unknowing or
involuntary relinquishment of constitutional right to jury trial amounts to due process
violation).


       ⦁ All of that brings me to what I have referred to as the linchpin: The remedy
required to mend the constitutional injury occasioned by Schmeal's inadequate waiver of
his right under Apprendi and Alleyne to have a jury find the fact determining the
appropriate length of postrelease supervision. In State v. Obregon, 309 Kan. 1267, 1277-
78, 444 P.3d 331 (2019), the Kansas Supreme Court held that in circumstances like
this—where a defendant has not been informed of and has not waived the specific right to
have a jury determine a fact that increases punishment—the appropriate remedy is a
remand for resentencing without the enhancement triggered by the fact.


       In that case, Obregon pleaded no contest to one count of distributing marijuana
and one count of distributing cocaine. The State sought a statutory increase of six months
on the prison term for each conviction because Obregon possessed a firearm during the
commission of those crimes. K.S.A. 2017 Supp. 21-6805(g)(1)(A) (if defendant "carried
a firearm to commit a drug felony," he or she "shall be sentenced to . . . an additional 6
months' imprisonment"). Obregon was informed that the State would seek the enhanced
penalty. But the district court never advised Obregon he had a right under Apprendi to
have a jury determine whether he had carried a firearm, and he did not waive that right.




                                             28
       In an unpublished opinion, a panel of this court relied principally on Apprendi and
Duncan to hold that the district court committed reversible error by failing to inform
Obregon of that jury trial right and then failing to secure a proper waiver. State v.
Obregon, No. 117,422, 2018 WL 911215, at *2-3 (Kan. App. 2018) (unpublished
opinion) rev'd 309 Kan. 1267 (2019). The court found that the appropriate remedy
required a remand to the district court so Obregon could be appropriately informed of his
right and either waive it or exercise it. 2018 WL 911215, at *3. If he were to elect the
latter option, the district court would then empanel a jury to determine if Obregon had a
firearm when he committed the crimes. His guilt or innocence of the crimes would not be
before the jury, since he had been convicted of them based on his no contest pleas.[1]


       [1]As a matter of full disclosure, I wrote the panel opinion.


       Obregon filed a petition for review questioning the panel's remedy. In its opinion,
the Kansas Supreme Court accepted the panel's conclusion that the district court violated
Apprendi, citing the State's failure to seek review of that determination, although a
different conclusion would seem to conflict with Duncan. Obregon, 309 Kan. at 1276;
see Duncan, 291 Kan. at 472-73. Turning to the issue of remedy, the court concluded a
jury trial to determine if Obregon used a firearm would be inappropriate. So the court
vacated the firearm enhancement and remanded to the district court to resentence
Obregon without it. 309 Kan. at 1278-79.


       I see no principled legal difference between Obregon and this case on the matter
of remedy. Adhering to Obregon (as we must), we should vacate Schmeal's lifetime
postrelease supervision and remand for the district court to impose a term of postrelease
supervision without considering Schmeal's age. I believe that would result in a 60-month
period of postrelease supervision. Schmeal's conviction for a statutorily designated
"sexually violent crime" extends postrelease supervision from the standard 36 months to
either 60 months or life—so that increase would require no judicial fact-finding,

                                             29
consistent with Walker and Anthony. But the imposition of 60 months or lifetime
postrelease supervision depends upon a factual finding: Schmeal's age when he
committed the crime. If the district court cannot make that finding or empanel a jury to
do so—and it can't according to Obregon—then Schmeal should be sentenced to the
lesser term of postrelease supervision for a sexually violent crime.


       The majority avoids that result by avoiding Schmeal's argument premised on the
inadequate jury waiver. Schmeal has advanced alternative grounds challenging the
district court's imposition of lifetime postrelease supervision. First, he contends he never
admitted to the operative fact (his age) in a manner that would support the enhanced term
of postrelease supervision. Second, he contends even if he had, he never made an
informed and voluntary waiver of his right to have a jury determine that fact. Those are
independent bases for vacating lifetime postrelease supervision, and either one is legally
sufficient to support that outcome. See Blakely, 542 U.S. at 310 (recognizing defendant's
stipulation to required facts and defendant's consent to judicial fact-finding as distinct
exceptions to Apprendi rule).


       As I have said, the majority addresses only the first argument and barely mentions
the second. That abbreviated treatment of Schmeal's dual arguments cannot justify
affirming the district court. I don't further explore Schmeal's contention about his
ostensible admissions of his age except to say that he has a colorable claim that random
statements a defendant makes during the course of a criminal case, even directly to the
district court, may not be the focused factual stipulations or concessions of the sort
contemplated in Blakely. And a defendant's general acknowledgement of the State's
factual proffer in support of a no contest plea typically would not be considered a binding
admission. See State v. Case, 289 Kan. 457, 461, 213 P.3d 429 (2009).


       Returning to Obregon, I fail to understand why the Kansas Supreme Court chose a
remedy in that case that did not closely fit the error and, thus, created an ill-fitting

                                               30
template for cases like this one. Ordinarily, relief granted on appeal ought to be carefully
tailored to the error, avoiding a remedy either too crabbed or too expansive. The former
doesn't fully undo the harm, and the latter extends an undue benefit. In many situations,
an appropriate remedy should, if possible, restore the parties to their respective positions
before the error and allow them to proceed anew from the point of restoration. That
seems eminently sensible for this sort of mistake.


        For example, Obregon complained that nobody informed him of his right to have a
jury decide if he carried a firearm during the drug crimes, so he was deprived of that
opportunity. The logical remedy would have restored that opportunity. Obregon, so
informed of his right, might have decided against contesting the firearm enhancement. He
could have waived his right to a jury and consented to judicial fact-finding. Or he could
have asked for a jury trial. Permitting an informed Obregon to choose among those
options would have fully and fairly remedied the specific harm. Instead, however, the
court afforded him relief markedly exceeding the harm. Functionally, the court's remedy
went way beyond restoring Obregon's opportunity to have a jury trial; it dispensed with
the trial altogether and handed him the best possible outcome he could have achieved in
that trial.


        In fashioning that relief, the court offered no insuperable legal barrier to a more
tailored remedy. Basically, the court found that a trial on the firearms enhancement
would be contrary to the "general rule against special verdicts in criminal cases."
Obregon, 309 Kan. at 1268. But the court acknowledged that common-law rule pertains
to jury findings on liability in criminal cases—whether the defendant is guilty or not
guilty. 309 Kan. at 1277-78. The court relied on State v. Brown, 298 Kan. 1040, 1049,
318 P.3d 1005 (2014), holding that it was error, albeit a harmless one, to submit a special
question to the jury as to the defendant's age, when age was a statutory element of the
charged crime. Allowing a jury to determine whether Obregon carried a firearm would
not have upset that rule, since his guilt already would have been determined by his plea

                                              31
and the resulting judgment of conviction. The same would be true here. So Brown and
other cases requiring general verdicts on guilt in criminal cases are inapposite.


       The court also embraced Obregon's argument that the Legislature had not created a
procedural mechanism for a jury to consider the firearm sentencing enhancement as an
exception to the "special rule" requiring general verdicts. But that is doubly off the mark,
since the rule itself applies to the liability finding of guilty or not guilty rather than to a
factual finding enhancing punishment. And it's a judge-made rule that doesn't require
some legislative exception. The notion would seem to preclude any jury from making a
firearm finding. The use of a firearm should not be submitted to the jury as if it were an
element of the underlying drug offense and, thus, incorporated into the liability verdict.
First, of course, it isn't an element. Second, if a jury were instructed that way and
entertained a reasonable doubt about the firearm, it would then return a not guilty verdict
on the underlying drug offense. But the absence of some sort of legislatively authorized
mechanism apparently would preclude having a jury consider it after reaching a guilty
verdict on the drug crime. So defendants asserting their Apprendi right to a jury trial on
the firearms enhancement would necessarily escape liability for it. The same would seem
to hold true for Schmeal or similarly situated defendants: If they assert their right to have
a jury determine whether they were over 18 years of age for purposes of determining the
length of their postrelease supervision, then there would be no way to submit that to a
jury. So they could not be sentenced to lifetime postrelease supervision.


       But the conundrum is a legal figment. A district court does not need specific
legislative authority to submit a sentencing issue to a jury or to empanel a jury for that
purpose, especially when the defendant has a Sixth Amendment right to a jury
determination. The Kansas Supreme Court has suggested the Legislature may enact a
detailed statutory scheme expressly limiting how district courts handle fact-finding for
sentencing purposes and constraining their use of juries for the purpose. See Horn, 291
Kan. at 11-12. But, as the court recognized in Obregon, there are no such legislative

                                               32
constraints on the fact-finding necessary for the firearm enhancement in K.S.A. 2019
Supp. 21-6805(g)(1)(A). Nor are there constraints on how a district court would treat the
matter of Schmeal's age for Apprendi purposes.


       The better remedy here would call for vacating Schmeal's postrelease supervision
and remanding so the district court could inform him of his jury trial right. I readily
concede that were Schmeal to exercise his right to a jury trial, the proceeding would be
unusual and likely quite short. I assume the State would have little difficulty introducing
convincing evidence Schmeal was more than 18 years old at the time of the crime. And I
doubt Schmeal could offer much in the way of a counter. I also imagine the jurors might
be perplexed as to why they had been assembled to perform their assigned task unless or
until they received some after-the-fact explanation. For what it's worth, the verdict in that
trial presumably would consist of a "yes" or "no" finding as to whether Schmeal was at
least 18 years old on July 25, 2017, and, thus, would mirror the binary choice a jury
makes in rendering a guilty or not guilty verdict. There would be no "special verdict"
entailing answers to multiple questions from which the district court would fashion a
determination. All of that seems both logical and sensible, if rather inefficient. But fixing
things typically takes longer than doing them right the first time.


       This whole exercise over lifetime postrelease supervision—whatever the correct
result—presumably could have been avoided if the district court had informed Schmeal
of his right to have a jury determine his age as a fact requiring he be placed on lifetime
postrelease supervision and securing a waiver of that right. The county attorney could
have channeled the process to that result by requiring Schmeal to waive a jury
determination as a condition of any plea agreement or by requiring him to clearly
stipulate during the plea hearing to his age at the time of the crime. The admission would
not be inconsistent with a no contest plea. Schmeal's age was not an element of the crime,
and his stipulation of that fact would not implicate him in wrongdoing.[2]


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        [2]If a defendant like Schmeal wanted a jury trial on liability and on age as a
sentencing factor, I presume the district court would have both sides present all of their
evidence to the jury. There would be no reason to bifurcate the evidence on age, since it
wouldn't be inherently prejudicial to the defendant. The district court would instruct the
jury on the elements of the crime and the other usual matters governing the determination
of guilt or innocence. If the jury brought back a not guilty verdict, that would be the end
of the matter. If the jury found the defendant guilty, the district court should, if requested,
poll the jurors and otherwise accept the verdict. The district court would then inform the
jurors they had another matter to consider and instruct them on determining the
defendant's age at the time of the crime. The lawyers would be permitted to argue the
issue to the jury. The jury would then decide that point, using a verdict form asking
whether the State had proved the defendant was at least 18 years old at the time of the
crime or words to that effect. As I have indicated, the verdict options would be a binary
"yes" or "no."

        I suppose a defendant could plead guilty or no contest to the charge and request a
jury trial on only his or her age as a sentencing factor. That would, I think, be
exceedingly rare in the run of cases as a tactical matter and going forward, perhaps,
because astute prosecutors will insist on explicit jury trial waivers covering both liability
and sentencing as a concession for favorable plea deals.

       In closing, I mention why the harmless error rule the majority discusses does not
obviate Schmeal's inadequate (really nonexistent) jury trial waiver on age as a sentencing
factor. As I have said, the logical remedy would restore the State and Schmeal to the
positions they were in before the error. That would give Schmeal the opportunity to make
an informed decision on waiving or exercising his right to have a jury determine his age.
The courts commonly afford that remedy for an inadequate waiver of the right to have a
jury decide guilt. See State v. Johnson, 46 Kan. App. 2d 387, 400, 264 P.3d 1018 (2011);
State v. Larraco, 32 Kan. App. 2d 996, 1001, 93 P.3d 725 (2004); State v. Bell, No.
110,550, 2014 WL 5801050, at *4 (Kan. App. 2014) (unpublished opinion). The same
should hold here. The error, however, cannot be treated as contaminating any other
components of the case disposition. Schmeal, therefore, would have no valid claim for
withdrawing his plea and the resulting finding of guilt on the charged crime because of
the botched jury waiver on age as a sentencing factor.




                                              34
       The analytical model for harmless error used in Washington v. Recuenco, 548 U.S.
212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), and Neder v. United States, 527 U.S. 1,
119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), is, by contrast, inapposite. In those cases, the
Court found no reversible error when an issue that should have been submitted to a sitting
jury wasn't. The Court reviewed the actual evidence presented to the juries and the
lawyers' arguments to the juries. Because the real-life evidence supporting the omitted
issue in each case was overwhelming and undisputed and because the real-life defense
lawyer never contested the issue in front of the jury, the Court held it could reasonably
conclude the outcome would have the same if the issue had been submitted to the jury—
the very definition of a harmless error. See Washington, 548 U.S. at 220-21 (expressly
invoking rationale of Neder to find harmless error in failing to submit sentencing factor
for jury's consideration at trial); Neder, 527 U.S. at 17 (The omission of an element of
the charged crime in a jury instruction may be deemed harmless when the "element was
uncontested and supported by overwhelming evidence, such that the jury verdict would
have been the same absent the error.").


       Here, however, there was no real-life jury trial, no real-life evidence, and no real-
life defenses presented to the jury. We would have to invent a hypothetical trial to a
hypothetical jury with hypothetical evidence and hypothetical arguments. That would go
at least one giant step over the line between reasoned judicial analysis and ungirded
speculation akin to impermissibly directing a verdict in a criminal case. See Sullivan v.
Louisiana, 508 U.S. 275, 277, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993) (citing United
States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S. Ct. 1349, 51 L. Ed. 2d
642 [1977]) (directing verdict in criminal case violates defendant's Fourteenth
Amendment due process rights and Sixth Amendment jury trial rights); State v. Brice,
276 Kan. 758, Syl. ¶ 2, 80 P.3d 1113 (2003).


       In sum, Schmeal has been deprived of a fundamental right, and the proscribed
remedy, as much as I might consider it ill-conceived, calls for vacating the district court's

                                             35
imposition of lifetime postrelease supervision. The case should be remanded with
directions for the district court to resentence Schmeal to a postrelease supervision term of
60 months. I, therefore, respectfully dissent from my colleagues' decision to affirm on
this point.




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