State v. Dwerlkotte

1

NOT DESIGNATED FOR PUBLICATION

No. 118,296

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT F. DWERLKOTTE, JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed August 31, 2018.
Reversed and remanded with directions.

Shannon S. Crane, of Hutchinson, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., LEBEN, J., and BURGESS, S.J.

PER CURIAM: Another panel of this court granted Robert F. Dwerlkotte, Jr., relief
under State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015) (Dickey I), and State v.
Dickey, 305 Kan. 217, 380 P.3d 230 (2018) (Dickey II), and remanded the case for
resentencing using the proper criminal history score. At resentencing, the district court
modified the sequencing of Dwerlkotte's sentences, not only for his challenged sentence
that was vacated by this court but also for a sentence that he did not challenge on his prior
appeal. The district court also modified the sentencing range on his nonbase sentence
from a standard sentence to an aggravated sentence. Dwerlkotte appealed his
2

resentencing and the district court's denial of his motion to reconsider. We reverse and
remand for sentencing.

FACTUAL AND PROCEDURAL BACKGROUND

This is Dwerlkotte's sixth appeal arising from his convictions stemming from
events in May 2007. Dwerlkotte's sentence that he is currently appealing is a result from
the following events:

"In May 2007, Dwerlkotte broke into his ex-wife's residence and asked her to have sex
with him; eventually he exposed his penis to her and sucked on her breasts while he held
her down on the bed. She called police when she was able to, but Dwerlkotte eluded
them. The State charged him with aggravated burglary, aggravated sexual battery, lewd
and lascivious behavior, and fleeing and eluding police." Dwerlkotte v. State, No.
105,669, 2011 WL 4906854, at *1 (Kan. App. 2011) (unpublished opinion) (Dwerlkotte
II).

See State v. Dwerlkotte, No. 99,581, 2009 WL 500992, at *1 (Kan. App.), rev. denied
289 Kan. 1281 (2009) (Dwerlkotte I).

Dwerlkotte's First Appeal

"In August 2007, Dwerlkotte made a plea agreement with the State where he
agreed to plead no contest to one count of aggravated burglary and one count of
aggravated sexual battery. In exchange, the State agreed to dismiss two other counts;
jointly recommend a sentence of 120 months; and not file any motions to have
Dwerlkotte declared a persistent sex offender." Dwerlkotte I, 2009 WL 500992, at *1.

The State also agreed to dismiss an unrelated criminal case, to recommend concurrent
sentences, and to join in a durational departure sentence to a controlling term of 120
months in prison.
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On September 14, 2007, the district court sentenced Dwerlkotte. He did not object
to his criminal history score of A. Dwerlkotte filed a motion for a downward
dispositional and/or durational departure. The district court declined to follow the plea
agreement and found Dwerlkotte to be a persistent sex offender under K.S.A. 21-4704(j).
The district court denied Dwerlkotte's motion for a downward departure and sentenced
him to a controlling term of 272 months' imprisonment with 24 months of postrelease
supervision.

Dwerlkotte appealed. On February 27, 2009, the Kansas Court of Appeals
affirmed his sentence. Dwerlkotte I, 2009 WL 500992, at *1, 6. That panel held: (1) it
would not review Dwerlkotte's sentence because it was a presumptive guideline sentence;
(2) there was no evidence in the record that the State breached the plea agreement; and
(3) harmless error occurred when the district court judge failed to tell Dwerlkotte at the
plea hearing that his sentence of 136 months would be doubled to 272 months since
Dwerlkotte knew of the possible application of the special persistent sex offender rule
when he bargained with the State to refrain from seeking its application. 2009 WL
500992, at *5-6.

Dwerlkotte's Second Appeal

After Dwerlkotte's sentence was affirmed on appeal, he filed a K.S.A. 60-1507
motion raising essentially the same issues he had raised in his direct appeal. The 60-1507
petition was denied by the district court and Dwerlkotte appealed. On October 14, 2011,
another panel of this court affirmed the district court's dismissal of Dwerlkotte's K.S.A.
60-1507 motion. Dwerlkotte II, 2011 WL 4906854, at *1, 3.




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Dwerlkotte's Third Appeal

On October 30, 2012, Dwerlkotte filed a motion to correct illegal sentence in the
district court. In this motion, he argued that his sentencing journal entry incorrectly
imposed 60 months' postrelease supervision instead of the orally imposed 24 months'
postrelease supervision. Dwerlkotte also alleged other sentencing errors had occurred,
which required his sentence to be set aside.

The district court held a hearing on this motion on December 7, 2012, and ordered
that a nunc pro tunc journal entry be prepared correctly listing Dwerlkotte's postrelease
term as 24 months rather than 60 months. The district court denied Dwerlkotte's motion
on his other claims. Dwerlkotte appealed.

On April 25, 2014, the Kansas Court of Appeals issued an opinion again
upholding Dwerlkotte's sentence. State v. Dwerlkotte, No. 109,930, 2014 WL 1707965
(Kan. App. 2014) (unpublished opinion), rev. denied 301 Kan. 1048 (2015) (Dwerlkotte
III). That panel held that because the district court was statutorily mandated to sentence
Dwerlkotte as a persistent sex offender, his sentence was not illegal. 2014 WL 1707965,
at *1-3.

Dwerlkotte's Fourth Appeal

On April 24, 2015, the State filed a motion to correct illegal sentence, arguing that
on the date of Dwerlkotte's offense and on the date of his sentencing K.S.A. 22-
3717(d)(1)(G) and (d)(2)(I) required the imposition of lifetime postrelease supervision for
the offense of which he was convicted.

Dwerlkotte responded by filing a motion for postrelease supervision departure
findings. He argued that K.S.A. 22-3717(d)(1)(D)(i)-(iii) set out departure language
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regarding postrelease supervision that authorized a district court judge to find substantial
and compelling reasons to impose a 60-month postrelease supervision period, rather than
lifetime postrelease. In addition, he argued that lifetime postrelease supervision is
unconstitutional cruel and unusual punishment under State v. Freeman, 223 Kan. 362,
367, 574 P.2d 950 (1978).

On July 29, 2015, Dwerlkotte filed a second motion to correct illegal sentence pro
se. Relying on State v. Dickey, 50 Kan. App. 2d 468, 329 P.3d 1230 (2014), in this
motion he challenged the classification of three pre-1993 Kansas burglary convictions as
person felonies in the calculation of his criminal history score.

On November 6, 2015, the district court held a hearing on the State's motion to
correct illegal sentence. At this hearing, Dwerlkotte argued the imposition of lifetime
postrelease supervision amounted to unconstitutional cruel and unusual punishment under
the Freeman factors. The district court found his argument meritless and ordered
Dwerlkotte to be subject to lifetime postrelease supervision for his conviction of
aggravated sexual battery. The district court did not make a ruling on Dwerlkotte's
motion to correct illegal sentence at this hearing. Dwerlkotte appealed the district court's
imposition of lifetime postrelease supervision.

On April 28, 2017, the Kansas Court of Appeals concluded that Dwerlkotte's
lifetime postrelease supervision was not cruel and unusual punishment and affirmed the
district court. State v. Dwerlkotte, No. 115,625, 2017 WL 1535212, at *1-4 (Kan. App.)
(unpublished opinion), rev. denied 306 Kan. 1323 (2017) (Dwerlkotte IV).

Dwerlkotte's Fifth Appeal

Before the filing of Dwerlkotte IV, on January 29, 2016, Dwerlkotte filed a pro se
motion for declaration judgment based on Dickey I, claiming that the Kansas Supreme
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Court's opinion in Dickey I was dispositive of his second motion to correct illegal
sentence filed on July 29, 2015. Dwerlkotte filed a third motion to correct illegal sentence
essentially to this same effect on April 12, 2016.

On April 18, 2016, the district court held a hearing on Dwerlkotte's second motion
to correct illegal sentence. The district court ultimately denied Dwerlkotte's motion and
Dwerlkotte appealed.

On April 28, 2017—the same date of filing as Dwerlkotte IV—the Kansas Court of
Appeals vacated Dwerlkotte's sentence. State v. Dwerlkotte, No. 116,231, 2017 WL
1535230, at *1 (Kan. App. 2017) (unpublished opinion) (Dwerlkotte V). That panel held
that Dwerlkotte's pre-Kansas Sentencing Guidelines Act (KSGA) Kansas burglary
convictions were improperly classified as person felonies, vacated Dwerlkotte's sentence,
and remanded the case for the correct calculation of his criminal history score and for
resentencing accordingly. 2017 WL 1535230, at *8.

Dwerlkotte's Current Appeal

The district court held a resentencing hearing on July 19, 2017. A new presentence
investigation (PSI) report was prepared properly classifying Dwerlkotte's pre-KSGA
burglary convictions, reducing his criminal history score from A to E. At this
resentencing, the following exchange occurred:

"THE COURT: If you're not aware of a reason legal or otherwise why sentence
should not be pronounced, recommendation.
"[THE STATE]: Well, judge, this always brings issues. Because at the time of
his sentencing on August the 17th of 2007 there had been a plea agreement reached with
the defendant whereby the [S]tate would recommend concurrent sentencing. The charges
of lewd and lascivious behavior and the felony flee and elude were dismissed. An
unrelated criminal case was also dismissed. The [S]tate indicated it would not file a
7

motion to declare the defendant to be a persistent sex offender and the [S]tate would
agree to a controlling sentence with the defendant of 120 months in prison. That was the
terms of the plea agreement.
"I think that has been violated in so many different ways at this point. I think the
defendant has done that. I'm not sure I'm still bound by it. I'd ask the court to give the
maximum time the court thinks is appropriate.
"THE COURT: [Defense], if you're not aware of a reason legal or otherwise why
sentence should not be pronounced, recommendation.
"[THE DEFENSE]: Judge, I'm just asking the courts to impose I believe the, I
would ask for concurrent sentences, obviously, and not to impose any special rules other
than the ones that apply to it and find that he has served his sentence and release him,
Your Honor.
"THE COURT: Mr. Dwerlkotte, at this time you may make any statements to
me that you wish. You may offer any evidence and testimony in mitigation of sentence.
You are not required to do so, but you certainly may.
"THE DEFENDANT: The only thing I ask for, Your Honor, is for my, for the
sentence, the charges to be concurrent, concurrently ran according to the first agreement
and that the [S]tate's recommendation be denied.
"THE COURT: Defendant, having been convicted of aggravated sexual battery,
it is the sentence and order of the court the defendant be taken into custody by the Sheriff
of Reno County and delivered to the custody of the Secretary of Corrections to serve a
term of 51 months, the aggravated sentence.
"On Count Two the defendant is sentenced to the custody of the Secretary of
Corrections to serve a term of 34 months, the aggravated sentence. Those two sentences
will run consecutive to each other for a controlling term of 85 months in the custody of
the Secretary of Corrections, and pursuant to the persistent sex offender statute those
numbers will be doubled with the defendant's final sentence being 170 months in the
custody of the Secretary of Corrections.
"The defendant will get credit for time served. There is a lifetime postrelease.
. . . .
"[THE DEFENSE]: Your Honor, then in addition to that, just twice [the] number
should be―
"THE COURT: I understand what I sentenced him to, Mr. Mueller. [Defense
counsel.] You're going to file a notice of appeal and you may file an appeal on my
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sentence. I have sentenced him to 170 months in the custody of the Secretary of
Corrections which I believe is allowed under the statute. I'm not doing it based upon the
recommendation of the [S]tate, although I find the [S]tate cannot abide by their plea
agreement. But even if they were to abide by the plea agreement the court's sentence has
nothing to do with that. It has to do with the defendant's criminal history, the facts
committed in this crime, and the view that I consider Mr. Dwerlkotte to be a very
dangerous individual still at this time as apparently Larned State Security―or the
psychiatrists in the Sexual Predator Unit. But I'm not basing it on that; I'm basing it on his
criminal history, what I view the dangerousness of Mr. Dwerlkotte to the community at
this point.
"We will proceed with the [sixth] appeal on Mr. Dwerlkotte's sentencing, it
would appear. You'll file a notice of appeal, Mr. Mueller. We'll appoint the appellate
defender. We will proceed."

This resentencing reduced his controlling sentence from 272 months to 170
months' imprisonment. However, in Dwerlkotte's original sentencing his sentences for his
two convictions were ordered to run concurrent to each other―at resentencing his
sentences for his convictions were ordered to run consecutive to each other.

Dwerlkotte now timely appeals his sentence.

On appeal, Dwerlkotte raises three arguments: (1) the district court improperly
modified his sentence at resentencing; (2) the State breached the plea agreement at
resentencing; and (3) the district court engaged in vindictive sentencing.

DID THE DISTRICT COURT EXCEED THE SCOPE
OF THE COURT OF APPEALS' REMAND AT RESENTENCING?

First, Dwerlkotte argues that the district court erred in resentencing him.
Specifically, he argues that the district court erred in imposing the aggravated sentence
for both counts, running those sentences consecutive to each other, and then doubling that
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sentence under K.S.A. 21-4704(j)(1), which allows a district court to double an offender's
sentence if he or she is classified as a persistent sex offender. Dwerlkotte claims that the
district court violated the mandate rule because it did not have the authority to modify his
nonbase sentence. To resolve Dwerlkotte's argument, it must be determined if the district
court exceeded the scope of this court's mandate and, if so, if the district court was
without the legal authority to modify Dwerlkotte's nonbase sentence.

"Whether a district court has complied with the mandate of an appellate court is a
question of law over which we exercise plenary review." State v. Tafoya, 304 Kan. 663,
666, 372 P.3d 1247 (2016). Known as the "mandate rule," K.S.A. 60-2106(c) provides:

"When . . . a decision of an appellate court becomes final, such court shall promptly
cause to be transmitted to the clerk of the district court its mandate containing such
directions as are appropriate under the decision. A copy of the opinion of the court shall
accompany and be a part of the mandate. . . . Such mandate and opinion, without further
order of the judge, shall thereupon be a part of the judgment of the court if it is
determinative of the action, or shall be controlling in the conduct of any further
proceedings necessary in the district court."

As stated by the Kansas Supreme Court:

"A sentence is effective when pronounced from the bench. A sentence is the
judgment of the court that formally declares to the accused the legal consequences of his
or her conviction. The final judgment in a criminal case is the sentence. Once sentence is
pronounced and judgment entered, the district court loses jurisdiction over a criminal
case except to correct arithmetic or clerical errors. [Citations omitted.]" Tafoya, 304 Kan.
at 666-67.

Finally, "the substance of the Court of Appeals ruling controls over the form its ruling
takes. 'The law of this state is realistic. Substance prevails over form.' [Citations
omitted.]" 304 Kan. at 670.
10

In Dwerlkotte V, 2017 WL 1535230, at *8, that panel remanded the case, holding:

"The error here raised Dwerlkotte's criminal history score to an A. Dwerlkotte's
presentence investigation report reflected four person felonies and four nonperson
misdemeanors. Three of the person felonies were the disputed burglary convictions.
Dwerlkotte's criminal history would drop significantly if the burglary convictions were
scored as nonperson felonies rather than person felonies. K.S.A. 2006 Supp. 21-4704.
"We vacate Dwerlkotte's sentence and remand for resentencing with directions to
score the preguidline burglary convictions as nonperson felonies."

In that case Dwerlkotte only challenged his sentence to which the incorrect
criminal history score of A was applied. No challenge was made to the conviction to
which the district court applied the criminal history score of I. See Dwerlkotte V, 2017
WL 1535230, at *8. Simply stated, there was never a challenge to Dwerlkotte's nonbase
conviction during his prior appeal. He only challenged the sentence to which the incorrect
criminal history score was applied. Therefore, the substance of the remand was to vacate
Dwerlkotte's base sentence. The district court went outside the scope of the remand in
modifying the nonbase sentence. See Tafoya, 304 Kan. at 667; see also State v.
Crutchfield, No. 118,021, 2018 WL 2460267, at *4-7 (Kan. App. 2018) (unpublished
opinion) (holding that when this court remands for recalculation of criminal history score
and resentencing accordingly, only base sentences to which the incorrect criminal history
was applied are vacated and nonbase sentences remain intact).

Because the district court exceeded the scope of the remand, it must be determined
if the district court was without the legal authority to modify Dwerlkotte's nonbase
sentence. The State argues that the KSGA permits the resentencing on all convictions
upon remand. This argument fails.

"[A] district court has no authority to modify unchallenged sentences following a remand
by an appellate court except when modification is needed to correct arithmetic or clerical
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errors. The only other exception occurs when a sentence is determined to be illegal within
the meaning of K.S.A. 22-3504, which may happen at any time. Thus, on remand from a
higher court, absent narrow exceptions, a district court's jurisdiction to resentence or
otherwise deviate from an already pronounced sentence is limited to the express
instructions contained in the higher court's mandate. [Citations omitted.]" Tafoya, 304
Kan. at 667.

The Kansas Supreme Court has "repeatedly held that the [KSGA] governs the
jurisdiction of courts to impose sentences. . . . [I]n enacting the KSGA, the legislature
intended to restrict the authority of district courts to modify sentences once the sentences
have been pronounced from the bench." State v. Guder, 293 Kan. 763, 763, 267 P.3d 751
(2012).

Once the district court has pronounced the sentence from the bench it may not
modify a sentence unless it has explicit statutory authority to do so. 293 Kan. 763, Syl. ¶
2. The KSGA "does not grant district courts the authority to modify sentences following
remand unless the primary conviction was reversed on appeal." (Emphasis added.) 293
Kan. 763, Syl. ¶ 3.

In Guder, the district court modified Guder's sentence for manufacturing a
controlled substance as it was directed to do by this court. However, it also "modified the
[possessing drug] paraphernalia sentence from concurrent to consecutive." 293 Kan. at
765. In reviewing the district court's actions, our Supreme Court held:

"When it enacted the KSGA, our legislature explicitly addressed remands
following reversal. K.S.A. 21-4720(b)(5) [now codified as K.S.A. 2017 Supp. 21-
6819(b)(5)] provides that, in the event that a conviction of the primary crime is reversed
on appeal, the sentencing court is to follow all of the KSGA provisions concerning
sentencing in multiple conviction cases.
"Nothing in the statutory scheme, however, allows resentencing on other
convictions following the vacating of a sentence on appeal. It is telling that the legislature
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expressly set out the authority of district courts to resentence on remand, without giving
them authority to resentence on other convictions when only the sentence for the primary
conviction is vacated. It is also telling that, in repealing the old statute and replacing it
with a new version in 2010, the legislature retained the limitation to remands when the
primary conviction is reversed. See L. 2010, ch. 136, sec. 300(b)(5). We will not add
words to the statute that would provide jurisdiction to resentence on other counts when
only the sentence on the primary conviction is vacated. This court ascertains the
legislature's intent through the statutory language it uses, and it will not read a statute to
add something not readily found in it.
"Although Guder's sentence was vacated, his conviction was not reversed. We
find no language from the legislature allowing a district court to modify any of the
sentences that were not vacated on appeal.
"We therefore vacate the modification of Guder's sentence that rendered his
sentence for the paraphernalia conviction consecutive to the manufacturing sentence, and
we reverse the decision of the Court of Appeals affirming the district court. [Citations
omitted.]" 293 Kan. at 766-67.

Recently, the Kansas Supreme Court held: "When multiconviction cases are
remanded for resentencing, the [KSGA] prohibits district courts from modifying
sentences that have not been vacated by the appellate court. An exception exists when the
district court must alter such a sentence as a matter of law to avoid an illegal sentence."
State v. Warren, 307 Kan. 609, Syl. ¶ 1, 412 P.3d 993 (2018).

Here, Dwerlkotte's primary conviction was not reversed on appeal. Accordingly,
the KSGA did not permit the district court to modify his sentence that was not vacated by
this court. No modification was needed to avoid an illegal sentence or to correct
arithmetic or clerical errors. Our court only vacated Dwerlkotte's base count to which the
incorrect criminal history score was applied, and Dwerlkotte made no challenge to any
other sentences on appeal. The district court exceeded the scope of this court's mandate
and was without the legal authority to modify Dwerlkotte's nonvacated sentence.
13

In practical application, the district court incorrectly ordered Dwerlkotte's
sentences to run consecutive to each other because they were originally ordered to run
concurrent. Further, the district court was not permitted to order the aggravated grid
range sentence because this sentence was not vacated on appeal. Finally, K.S.A. 21-
4704(j)(1) permits the doubling of an offender's sentence if the offender is a persistent
sex offender. Dwerlkotte's original base sentence was the aggravated grid sentence. The
district court was correct in again imposing the aggravated grid sentence for Dwerlkotte's
base sentence using his correct criminal history score of E. This equated to a 51-month
term of imprisonment. Under K.S.A. 21-4704(j)(1), the district court may double this
sentence when the offender is a persistent sex offender. The result is that Dwerlkotte's
maximum sentence was 102 months' imprisonment. The district court was not permitted
under the KSGA to alter the originally imposed sequencing of the sentences or the grid
range severity level of the nonvacated sentence. The sentence of 170 months'
imprisonment was statutorily impermissible.

Additionally, at Dwerlkotte's original sentencing, the district court determined
Dwerlkotte's base conviction to be aggravated burglary, a severity level 5 person felony,
and the district court designated his aggravated sexual battery conviction, also a severity
level 5 person felony, as his nonbase conviction. However, at resentencing his base and
nonbase convictions were transposed. Although this is of no consequence in the above
analysis because these crimes carry the same severity level of a level 5 person felony, the
district court must correct this error on remand for consistency. K.S.A. 21-3518(b);
K.S.A. 21-3716.

This first issue is determinative of the outcome of Dwerlkotte's appeal. The case
must be remanded for resentencing. However, the issue as to whether the State violated
the plea agreement must be addressed to insure that it does not muddy the waters at a
resentencing. If further appeals can be avoided by resolving this issue now, it is wise to
do so.
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DID THE STATE BREACH THE PLEA AGREEMENT AT RESENTENCING?

Dwerlkotte argues that the State breached the plea agreement when it requested
that he be given the maximum sentence at resentencing. The State responds that, first,
Dwerlkotte breached the plea agreement first by not agreeing with the sentence set out in
the plea agreement, and, second, that he failed to preserve the issue for appellate review
by failing to object at resentencing.

Whether the State breached its plea agreement with a defendant is a question of
law over which an appellate court exercises unlimited review. State v. Urista, 296 Kan.
576, 582-83, 293 P.3d 738 (2013). In Urista, the Kansas Supreme Court discussed the
law surrounding the State's obligation to follow the plea agreement:

"'[W]hen a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration, such
promise must be fulfilled.' Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30
L. Ed. 2d 427 (1971). If the State fails to fulfill a promise it made in a plea agreement, the
defendant is denied due process. See State v. Wills, 244 Kan. 62, 67-68, 765 P.2d 1114
(1988); State v. Foster, 39 Kan. App. 2d 380, 390, 180 P.3d 1074, rev. denied 286 Kan.
1182 (2008); State v. McDonald, 29 Kan. App. 2d 6, Syl. ¶ 1, 26 P.3d 69 (2001). This is
true even if the record indicates that the district court's sentencing decision was not
influenced by the State's actions at sentencing. Foster, 39 Kan. App. 2d at 390.
"'[A] plea agreement is generally subject to contract principles' and, accordingly,
the 'application of fundamental contract principles is generally the best means to fair
enforcement of a plea agreement, as long as courts remain mindful that the constitutional
implications of the plea bargaining process may require a different analysis in some
circumstances.' State v. Copes, 290 Kan. 209, 217, 224 P.3d 571 (2010); see also State v.
Boley, 279 Kan. 989, 992-93, 113 P.3d 248 (2005) (noting the same). Kansas courts have
recognized that contracts, with the exception of at-will employment agreements, contain
implied covenants of good faith and fair dealing. Estate of Draper v. Bank of America,
288 Kan. 510, Syl. ¶ 13, 205 P.3d 698 (2009); see also Foster, 39 Kan. App. 2d at 388-
89, (applying the implied covenants of good faith and fair dealing to a plea agreement).
15

Furthermore, '[t]he law implies that contractual provisions requiring the exercise of
judgment or discretion will be honestly exercised and faithfully performed.' Lessley v.
Hardage, 240 Kan. 72, Syl. ¶ 7, 727 P.2d 440 (1986). Thus, parties to a plea agreement
must act fairly and in good faith in carrying out the promises they have made.
"Obviously, the State can breach a plea agreement by explicitly failing to fulfill
an agreed-upon promise, such as failing to make a sentencing recommendation to the
district court that it promised it would make. See Santobello, 404 U.S. at 257-59 (State
violated plea agreement by recommending a 1-year sentence at sentencing; in the plea
agreement, State agreed not to make any sentencing recommendation); McDonald, 29
Kan. App. 2d at 10 (State violated plea agreement by telling district court at sentencing
that State did not oppose granting defendant's downward dispositional departure motion
but reminded court of the factual findings it would have to make in order to grant motion;
in plea agreement, State promised to recommend 24 months' probation consecutive to the
defendant sentence for a parole violation). Cf. United States v. Benchimol, 471 U.S. 453,
455-56, 105 S. Ct. 2103, 85 L. Ed. 2d 462 (1985) (government complied with plea
agreement by making sentencing recommendation it promised it would make at
sentencing and nothing more; plea agreement did not require the prosecutor to express
enthusiasm for the recommendation or to explain the reasons behind the recommendation
at sentencing); State v. Hill, 247 Kan. 377, 385-86, 799 P.2d 997 (1990) (plea agreement
required State to recommend controlling term of two consecutive life sentences; at
sentencing, prosecutor merely informed district court that PSI report contained parties'
recommended sentence; this court concluded that prosecutor's actions satisfied
requirement to make sentencing recommendation because same judge presided over plea
hearing and sentencing and was explicitly informed of recommended sentence at plea
hearing; furthermore, judge had copy of PSI report which contained recommended
sentence and judge made statements at sentencing which indicated he was aware of
recommended sentence)." Urista, 296 Kan. at 583-84

Here, at resentencing, the following exchange occurred:

"[THE COURT:] The defendant was originally convicted and sentenced on
counts of aggravated sexual battery and aggravated burglary back in 2007. The
defendant, over the course of the proceedings, appealed this sentence [on] three separate
16

occasions which were affirmed. On his fourth appeal he was successful. The case was
remanded to sentence, resentence the defendant which we are going to do today.
"Do both parties acknowledge receipt of the updated PSI and are there any
objections to the criminal history score of E?
"[THE STATE]: Well, I made my objections. I still believe that when you put in
the language of the complaint that it was a dwelling that was entered in the burglary it's a
person felony, but the appellate courts disagree with me. So I still object to it, though.
"[THE DEFENSE]: Judge, we've reviewed and we have no objection.
"THE COURT: The court will find the primary offense to be aggravated sexual
battery with a criminal history score of E.
"Are there any motions for a departure?
"[THE DEFENSE]: No, Your Honor. Judge, just doing the math, he has done
123 months at this point. Twice the top number would be 102 so I didn't feel it was
necessary to file any motion because he's served his sentence, Your Honor.
"THE COURT: Mr. Schroeder, are there any victims present who wish to make
a statement?
"[THE STATE]: Not that I'm aware of, judge.
"THE COURT: If you're not aware of a reason legal or otherwise why sentence
should not be pronounced, recommendation.
"[THE STATE]: Well, judge, this always brings issues. Because at the time of
his sentencing on August the 17th of 2007 there had been a plea agreement reached with
the defendant whereby the [S]tate would recommend concurrent sentencing. The charges
of lewd and lascivious behavior and the felony flee and elude were dismissed. An
unrelated criminal case was also dismissed. The [S]tate indicated it would not file a
motion to declare the defendant to be a persistent sex offender and the [S]tate would
agree to a controlling sentence with the defendant of 120 months in prison. That was the
terms of the plea agreement.
"I think that has been violated in so many different ways at this point. I think the
defendant has done that. I'm not sure I'm still bound by it. I'd ask the court to give the
maximum time the court thinks is appropriate.
"THE COURT: [Defense counsel], if you're not aware of a reason legal or
otherwise why sentence should not be pronounced, recommendation.
"[THE DEFENSE]: Judge, I'm just asking the courts to impose I believe the, I
would ask for concurrent sentences, obviously, and not to impose any special rules other
17

than the ones that apply to it and find that he has served his sentence and release him,
Your Honor."

The State argues that Dwerlkotte failed to preserve this issue for appeal because he
failed to object before the district court. The Kansas Supreme Court addressed the
necessity of an objection to the State's breach of a plea agreement in State v. Jones, 302
Kan. 111, 117-18, 351 P.3d 1228 (2015), stating:

"Kansas follows a common-law rule that 'constitutional grounds for reversal asserted for
the first time on appeal are not properly preserved for appellate review' subject to three
exceptions. State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007).
"A new legal theory may be asserted for the first time on appeal if: (1) The
newly asserted theory involves only a question of law arising on proved or admitted facts
and is finally determinative of the case; (2) consideration of the theory is necessary to
serve the ends of justice or to prevent a denial of fundamental rights; and (3) the
judgment of the trial court may be upheld on appeal despite relying on the wrong ground
or assigning a wrong reason for its decision. State v. Gomez, 290 Kan. 858, 862, 235 P.3d
1203 (2010); Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d
858 (1967) (citing 5 Am. Jur. 2d, Appeal and Error §§ 549, 727, pp. 34, 170-71).
"This court just held in a case involving an alleged breach of a plea agreement
that Kansas Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) requires an
appellant raising a constitutional issue for the first time on appeal to affirmatively invoke
and argue an exception to the general rule that such claims may not be raised for the first
time on appeal. State v. Godfrey, 301 Kan. 1041, Syl., 350 P.3d 1068 (2015). In that case,
Godfrey's appellate brief made no reference to issue preservation and gave no explanation
why his claim was properly before the court for the first time on appeal as required by
Rule 6.02(a)(5). The State raised lack of preservation as an objection in its response brief,
and Godfrey again failed to proffer a reason why the appellate court should consider the
issue in a reply. Based on our admonition in State v. Williams, 298 Kan. 1075, 1085, 319
P.3d 528 (2014), warning future litigants about compliance with Rule 6.02(a)(5), we
declined to address the issue. Godfrey, 301 Kan. at 1043-44."

18

Although there is no obvious objection on the record, a review of the resentencing
transcript indicates that Dwerlkotte's counsel attempted to lodge an objection, but the
district court stopped Dwerlkotte's counsel's attempt and any such discussion. The
following exchange occurred:

"[THE DEFENSE]: Your Honor, then in addition to that, just twice number
should be―
"THE COURT: I understand what I sentenced him to, Mr. Mueller [Defense
counsel]. You're going to file a notice of appeal and you may file an appeal on my
sentence. I have sentenced him to 170 months in the custody of the Secretary of
Corrections which I believe is allowed under the statute. I'm not doing it based upon the
recommendation of the [S]tate, although I find the [S]tate cannot abide by their plea
agreement. But even if they were to abide by the plea agreement the court's sentence has
nothing to do with that. It has to do with the defendant's criminal history, the facts
committed in this crime, and the view that I consider Mr. Dwerlkotte to be a very
dangerous individual still at this time as apparently Larned State Security―or the
psychiatrists in the Sexual Predator Unit. But I'm not basing it on that; I'm basing it on his
criminal history, what I view the dangerousness of Mr. Dwerlkotte to the community at
this point.
"We will proceed with the [sixth] appeal on Mr. Dwerlkotte's sentencing, it
would appear. You'll file a notice of appeal, Mr. Mueller. We'll appoint the appellate
defender. We will proceed."

Moreover, even if this attempt to object is not enough to satisfy the requirement
that Dwerlkotte objected to the State's breach of its plea agreement, when an appellant
specifically evokes an exception to this rule, our court may consider the issue on appeal.
See Jones, 302 Kan. at 117-18. Here, Dwerlkotte specifically argues in his brief that
consideration of this issue is necessary to prevent the denial of his fundamental right to
due process. Therefore, this issue is properly before this court.

19

In Dwerlkotte's case, the State explicitly failed to fulfill an agreed-upon promise in
the plea agreement by failing to recommend to the district court that Dwerlkotte's
sentences run concurrent to each other. In fact, the State explicitly requested the opposite
and recommended that the district court impose the maximum sentence. This is obviously
a breach of the plea agreement and, thus, an infringement on Dwerlkotte's due process
rights. See State v. Wills, 244 Kan. 62, 67-68, 765 P.2d 1114 (1988); see also Santobello
v. New York, 404 U.S. 257, 257-59, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971) (State violated
plea agreement by recommending a 1-year sentence at sentencing; in the plea agreement,
State agreed not to make any sentencing recommendation).

The State also argues that it was permitted to breach the plea agreement because
Dwerlkotte breached the plea agreement first. The State claims that Dwerlkotte "violated
[the agreement] in so many ways," but does not offer any persuasive evidence of this
claim. There was nothing in the plea agreement that prevented Dwerlkotte from
appealing his sentence or his criminal history score.

Because the State's breach of the plea agreement was a violation of Dwerlkotte's
due process rights, this case is remanded to the district court for resentencing consistent
with this finding.

DID THE DISTRICT COURT VINDICTIVELY RESENTENCE DWERLKOTTE?

Finally, Dwerlkotte argues that the district court vindictively resentenced him. The
State argues in response that Dwerlkotte has failed to meet his burden in showing the
district court engaged in vindictive sentencing.

"A criminal sentence that is within statutory limits will not be disturbed on
appeal absent a showing of abuse of discretion or vindictiveness on the part of the
sentencing court."
20

"Where resentencing results in seemingly unjustified enhancement of sentence,
there is a presumption that the increased sentence resulted from vindictiveness, which the
sentencing judge or prosecutor must rebut. Where such presumption of vindictiveness
does not apply, the defendant must affirmatively prove actual vindictiveness in order to
prevail." State v. Cooper, 275 Kan. 823, Syl. ¶¶ 5-6, 69 P.3d 559 (2003).

Here, Dwerlkotte's sentence was not increased upon resentencing. His sentence
was decreased from 270 months' imprisonment to 170 months' imprisonment. Thus, there
is no presumption that his new sentence was vindictive; Dwerlkotte must therefore
affirmatively prove actual vindictiveness. See Cooper, 275 Kan. at 828-29 (holding
where defendant's sentence was not increased upon resentencing there is no presumption
of vindictiveness).

Dwerlkotte fails to prove actual vindictiveness. He argues that because the district
court commented "that a detainer had been filed by the Department of Corrections under
the Sexually Violent Predator Civil Commitment Act" that the sentence was vindictive.
However, the district judge explicitly said it was not basing Dwerlkotte's new sentence on
the detainer; rather, it was basing the new sentence on "his criminal history, what I view
the dangerousness of Mr. Dwerlkotte to the community at this point." There is no actual
vindictiveness shown, and the district court, therefore, did not vindictively resentence
Dwerlkotte.

Reversed and remanded with directions.