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Recent cert petition filed

We recently filed a cert petition in Snow v. Kansas on the issue of whether non-statutory "catch all" aggravating factors (used for an upward durational departure) satisfy the Due Process Clause.

We filed a similar petition last year in Green v. Kansas, blogged about here. The state's main response at that time was that there was no split of authority on the issue (because no other jurisdictions had reached the merits of such an issue). Our petition was denied last year after the SCOTUS ordered the state's response.

This last summer, the Arizona Supreme Court reached the issue and held that aggravating a sentence based on a non-statutory "catch all" aggravator was "patently" vague. See State v. Schmidt, 208 P.3d 214 (Ariz. June 3, 2009). So, now there's a clear split of authority.

If you have any cases where the prosecution is relying on non-statutory aggravating factors in an upward durational departure case, be sure to object!

Full post as published by Kansas Defenders on September 04, 2009 (boomark / email).