Equal Protection of the Laws is Not Discretionary

Evan Bolton, Staff Editor

State v. Myers, No. 123,439 (Kan. Ct. App. April 8, 2022)

Issue: Does § 21-6819 of the Kansas Sentencing Guidelines Act, which allows two or more criminal cases to be consolidated for trial if all charges could have been brought in one charging document, violate the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment when the base sentencing guidelines are applied separately in each case.

Answer: Yes. Applying the base sentencing guidelines separately in each case, which leads to a longer sentence than if the charges had been brought in a single charging document, treats indistinguishable classes of defendants differently under the Equal Protection Clause.

Facts: Anthony Myers was charged in connection with two residential shootings occurring over a year apart. The State charged the shootings in two separate cases, and the district court consolidated them finding the cases were of the same general character. In the first case, the jury found Myers guilty of attempted first-degree murder, aggravated battery, criminal discharge of a firearm, and criminal possession of a weapon by a convicted felon. In the second case, the jury found Myers guilty of criminal discharge of a firearm, aggravated battery, and criminal possession of a weapon by a convicted felon. The district court sentenced Myers by applying the base sentencing guidelines separately in each case. In the first case, Myers was given a base sentence of 618 months for attempted first-degree murder, with the remaining three offenses running concurrently. In the second case, Myers was given a base sentence of 237 months for criminal discharge of a firearm, with the remaining two offenses running concurrently. These sentences were ordered to run consecutively, for a total of 855 months.

Discussion: In Myers, the Court analyzed the Equal Protection claim by first discussing its recent decision in State v. Dixon, 492 P.3d 455 (Kan. Ct. App. 2021). In Dixon, the defendant brought an Equal Protection claim against § 21-6819(b)(4), which prohibits a sentence that “exceed[s] twice the base sentence” in cases involving multiple charges in the same charging document. Dixon, whose cases were consolidated and was charged separately, argued § 21-6819(b)(4) was unconstitutional as applied to consolidated cases because it treats classes of defendants differently based, not on the charged offenses, but on the prosecutor’s discretion to either bring charges in separate cases or the same charging document. The Dixon court found that § 21-6819(b)(4)’s “double-rule” violated the Equal Protection Clause when consolidated cases were sentenced separately. Thus, the question in Myers was whether consolidated cases sentenced separately violate the Equal Protection Clause even when the resulting sentence does not violate the “double-rule.” In Myers, the Court applied the reasoning from Dixon and held § 21-6819 violated the Equal Protection Clause. The Court noted that the prosecutor’s discretion to charge the offenses separately resulted in Myers’ sentence being 167 months longer than if the offenses were charged in the same charging document. Thus, prosecutorial discretion treated indistinguishable classes of defendants differently. According to the Court, the proper sentencing calculation for consolidated cases involves designating one charge as the base offense, then assigning a criminal history score for evaluating criminal charges in the related case. See Myers, No. 123,439 at 46–47 (calculating Myer’s different sentences under the two procedures). The Court vacated Myer’s sentence and remanded the case with instructions to resentence according to that procedure.

Key Authorities:

Kan. Stat. Ann. § 21-6819

State v. Dixon, 492 P.3d 455 (Kan. Ct. App. 2021)