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March 27, 2026 Get Citation Alerts Download PDF Add Note

State v. Hane

Court of Appeals of Kansas

• Citations: None known
• Docket Number: 127644

• Precedential Status: Non-Precedential

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (4.5K)

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Combined Opinion

NOT DESIGNATED FOR PUBLICATION

No. 127,644

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WILLIAM DALE HANE,
Appellant.

MEMORANDUM OPINION

Appeal from Dickinson District Court; BENJAMIN J. SEXTON, judge. Submitted without oral
argument. Opinion filed March 27, 2026. Affirmed.

James M. Latta, of Kansas Appellate Defender Office, for appellant.

Andrew J. Lohmann, assistant solicitor general, and Kris W. Kobach, attorney general, for
appellee.

Before COBLE, P.J., ISHERWOOD and HURST, JJ.

PER CURIAM: William Dale Hane pled guilty to two counts of aggravated sexual
battery, and the district court sentenced him to a term of imprisonment followed by
lifetime postrelease supervision. In imposing that sentence, the district court concluded
that Hane was at least 18 years old at the time he committed the underlying crimes. In
support of that conclusion, the plea agreement stated Hane's age as 52, and Hane affirmed
his age during a colloquy with the district court at both the plea and sentencing hearings.

1
Lifetime postrelease supervision is statutorily required for offenders aged 18 or
older convicted of a sexually violent crime—which includes Hane. However, Hane
claims the district court erred by engaging in factfinding to conclude he was at least 18
years old at the time of the crime, violating his right to a jury trial.

Assuming the district court erred by finding Hane 18 or older at the time of the
crimes without a sufficient jury trial waiver as to the age element, any error is harmless.
Therefore, Hane's sentence is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to a plea agreement (the Agreement), on November 1, 2023, Hane pled
guilty to two counts of aggravated sexual battery in violation of K.S.A. 21-5505(b)(1).
The acts underlying his charges occurred on or about May 8, 2022, and August 9, 2022.
Hane's age was not an element of the charges to which he pled guilty, and it was not
included in the amended charging document. However, as part of the Agreement, Hane
signed an acknowledgment of rights and entry of plea in which he wrote that he was 52
years old at the time he entered the Agreement. The Agreement also listed Hane's year of
birth as 1970 as part of the signature line.

The Agreement identifies the "range of sentences and fines which may be imposed
against [Hane] by the court" for each count. These include a range of confinement in
prison, a maximum fine, and "post-release supervision of twenty-four (24) months." The
Agreement does not mention the likelihood or even possibility of lifetime postrelease
supervision. At the plea hearing, the district court confirmed Hane's understanding that he
would "be looking at a post-release supervision period, commonly known as parole, of 24
months." Hane's age also came up at the plea hearing. The district court asked, "[Y]ou are
52 years of age; is that correct?" Hane replied, "Yes, sir." Hane also confirmed he read
and understood the Agreement. The court asked whether the year of birth written under

2
Hane's signature on the Agreement, which was 1970, was true and correct, and Hane
confirmed it was.

The Agreement contains the following relevant language regarding Hane's
understanding of his right to have a jury trial and what that right encompassed:

"At a trial, it would be the burden of the State of Kansas to prove, beyond a
reasonable doubt, each element of the charge(s) against me before I could be found
guilty.
....
"If I were to be convicted of any offenses in this court, and if my motion for a
new trial were denied, I would have the right to appeal my conviction(s) and sentence(s)
to a Kansas appellate court where I would be entitled to have such court review the
transcripts and record of my trial for any prejudicial error.
....
" If I go to trial, I retain the right to appeal from any adverse ruling or order made
against me by the court or jury, including the legal sufficiency of the evidence presented
against me to prove my guilt, any legal defects in the criminal proceedings, the sentences
or other penalties imposed, and the denial of probation."

The Agreement also contains the following language related to Hane's waiver of
his right to appeal:

"I understand that any appeal must be filed within 14 days of the date my
sentence is imposed in court and that if I cannot afford an attorney or the costs of any
appeal, the court will appoint counsel to represent me and will order that a transcript of
the necessary portions of the proceedings [be] provided to my counsel. I understand that
because of my agreement with the State, I am waiving any right to appeal any issue[]
raised or that could have been raised in this case. I understand that my waiver of any right
to appeal includes, and is not limited to: (1) the sentence imposed if the sentence is the
presumptive sentence; (2) the accuracy of my criminal history score; (3) the accuracy of
the crime severity level determination; (4) if the sentence imposed is not the presumptive

3
sentence, claims of partiality, prejudice, oppression or corrupt motive; (5) denial of a
motion for dispositional and/or durational departure; (6) statute of limitations; and/ or (7)
a sentence imposed that is greater than that agreed to in the plea agreement."

At the plea hearing, the State announced that Hane waived his right to appeal:
"And Mr. Hane, after being made aware of and fully advised by counsel of his appellate
rights, is voluntarily and knowingly waiving any or all of his rights of appeal." After
explaining Hane's rights to appeal, the district court asked Hane, "Do you understand that
by entering this plea of guilty, you waive each of the constitutional rights that you and I
have previously discussed?" Hane answered that he did.

At the outset of the sentencing hearing, the court announced Hane's criminal
history score of "I" with no objection by either party. The court stated that each count to
which Hane pled guilty carried a presumptive prison sentence between 31 and 34 months
and lifetime postrelease supervision. Neither party questioned nor objected to the court's
statements. The district court then recognized Hane's motion for dispositional departure.
Hane's counsel opened argument on the motion by explaining that at "51 years old," Hane
had no previous criminal history. Hane interrupted and corrected his counsel that he was
53 years old at that time. Additionally, the victim testified at sentencing about her
experience and explained the difficulty she faced "after being married to [Hane] for over
21 years."

The district court denied Hane's motion for dispositional departure and sentenced
Hane to 32 months in prison on each count and ordered Hane to serve the sentences
concurrently, creating a controlling sentence of 32 months in prison. The court also
imposed lifetime postrelease supervision as set forth in K.S.A. 22-3717(d)(1)(G)(i).

4
The district court then addressed Hane's right to appeal:

"You have a right to appeal my findings here today, under K.S.A. 22-3608. You have 14
days from today's date in which to file and perfect that appeal. If you fail to file that
appeal within that period of time, you would lose your right to appeal. If you could not
afford an attorney for your appeal, one would be made available to you at no charge. Do
you understand those rights, sir?"

After Hane answered, "Not entirely, but—" the district court repeated the same
information regarding Hane's right to appeal. Hane then affirmed his understanding.

Hane now appeals.

DISCUSSION

Hane claims the district court violated his rights by imposing lifetime postrelease
supervision based on improper judicial factfinding regarding his age at the time of the
criminal offense. The State disagrees but also contends that Hane waived his right to
appeal by entering the Agreement. Before addressing the merits of Hane's claim, this
court must determine whether Hane waived his right to appeal.

I. HANE DID NOT WAIVE HIS RIGHT TO APPEAL POSTRELEASE SUPERVISION

The State claims that the Agreement contains a clear waiver of Hane's appellate
right that prohibits this appeal. The relevant facts are undisputed. Thus, review of
whether Hane waived his right to appeal is a question of law subject to unlimited review.
State v. Frye, 294 Kan. 364, 371, 277 P.3d 1091 (2012).

The right to appeal in Kansas is statutory, and generally—except in certain
circumstances not relevant here—criminal defendants have a right to appeal their
5
convictions and sentence. State v. Moeller, 318 Kan. 860, 870, 549 P.3d 1106 (2024). A
defendant who pleads guilty may sometimes still appeal their sentence. State v. Smith,
311 Kan. 109, 119, 456 P.3d 1004 (2020). However, a defendant may knowingly and
voluntarily waive their right to appeal. State v. Patton, 287 Kan. 200, 226, 195 P.3d 753
(2008); see K.S.A. 22-3608. For a plea agreement to effectively waive a defendant's right
to appeal, the language must be explicit and unambiguous. Patton, 287 Kan. at 228-29
(holding that ambiguous language in a plea agreement must "'be strictly construed in
favor of the accused'").

The Agreement states that Hane waived his right to appeal "the sentence imposed
if the sentence is the presumptive sentence" or "a sentence imposed that is greater than
that agreed to in the plea agreement." The Agreement also informs Hane that "any appeal
must be filed within 14 days of the date [Hane's] sentence is imposed in court" and that
he had a right to appellate counsel. The district court twice advised Hane at the hearing of
his right to appeal the court's findings within 14 days under K.S.A. 22-3608. As in
another case decided by this court, this case involves "a collision of otherwise
unambiguous statements and actions." Bennett, 51 Kan. App. 2d 356, 366, 347 P.3d 229
(2015).

In Bennett, the defendant's plea agreement included a waiver of her right to appeal
unless the sentence imposed exceeded 300 months. 51 Kan. App. 2d at 358. At
sentencing, the court noted the presumptive sentence range was 166 to 186 months but
that the parties had joined an upward departure motion seeking a 300-month sentence.
The sentencing judge never asked if the defendant waived her right to submit aggravating
circumstances to a jury. After imposing the sentence, the court informed the defendant of
her right to appeal within 14 days. 51 Kan. App. 2d at 360. The defendant appealed,
arguing her sentence was illegal.

6
The Bennett panel noted that the district court's appellate directions created some
confusion relative to the plea agreement waiver and noted that the defendant was never
advised of her right to have the factors justifying an upward departure presented to a jury.
51 Kan. App. 2d at 366-67. Once again, like in Bennett, the Agreement is silent regarding
Hane's right to have a jury determine his age for postrelease supervision and does not
unambiguously address his right to appeal the imposition of lifetime postrelease
supervision. In fact, the Agreement inaccurately states that Hane faced a maximum "post-
release supervision of twenty-four (24) months," and does not refer to lifetime postrelease
supervision. While the Agreement states that Hane may not appeal a sentence greater
than what was agreed to, which is arguably what occurred here, the court's colloquies
with Hane at sentencing did nothing to cure the inaccuracy in the Agreement or any
ambiguity regarding the appeal waiver. Thus, Hane could not make a knowing, voluntary
waiver of his right to appeal postrelease supervision when he was not fully informed of
his right to present that issue to the jury and was given inaccurate information regarding
its length.

There could be no meeting of the minds regarding Hane's waiver of his right to
appeal the court's imposition of lifetime postrelease supervision when Hane was not
made aware of the right to present the issue to a jury. This court's review of Hane's appeal
is, therefore, proper.

II. ANY ERRONEOUS JUDICIAL FACTFINDING IS HARMLESS

Hane contends the district court erred when it used his age (over the age of 18) at
the time of the crime to impose lifetime postrelease supervision. Hane contends this
constituted improper judicial factfinding because he never waived his right to have the
State prove that fact to a jury beyond a reasonable doubt. See Apprendi v. New Jersey,
530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Appellate courts exercise
unlimited review of a defendant's challenge alleging judicial factfinding in violation of

7
Apprendi. Additionally, if statutory interpretation is required, this court's review is also
unlimited. State v. Nunez, 319 Kan. 351, 353, 554 P.3d 656 (2024).

Preservation

Before reviewing the merits of Hane's claim, this court must determine whether
the claim is properly preserved for appeal. Generally, issues raised for the first time on
appeal—even constitutional issues—are not properly before the appellate court for
review. State v. Holley, 315 Kan. 512, 524, 509 P.3d 542 (2022). Hane concedes this
issue is raised for the first time on appeal.

There are several exceptions to the general rule prohibiting appellate review of a
new legal theory for the first time on appeal. 315 Kan. at 524. Hane asserts that the
following two exceptions permit this court's review: (1) His claim involves only a
question of law on proved or admitted facts that is finally determinative of the case and
(2) this court's review is necessary to serve the ends of justice or prevent the denial of
Hane's fundamental rights. See 315 Kan. at 524. In these circumstances, this court's
review is prudential, and it may still decline to review a newly asserted claim even when
an exception applies. See State v. Mendez, 319 Kan. 718, 730, 559 P.3d 792 (2024).
Nonetheless, given the applicable exceptions this court elects to consider the merits of
Hane's appeal.

Error in the Jury Trial Waiver

A defendant's right to a jury trial necessarily includes the right to have a jury
determine the defendant's guilt beyond a reasonable doubt for "every element of the
crime with which [the defendant] is charged." State v. Johnson, 310 Kan. 909, 918, 453
P.3d 281 (2019) (citing Apprendi, 530 U.S. at 476-77). A defendant may waive the right
to a jury trial, but the "court must first obtain a constitutionally sufficient waiver." State v.

8
Bentley, 317 Kan. 222, 230, 526 P.3d 1060 (2023). A jury trial waiver is only
constitutionally sufficient when "the court advises the defendant of their right to a jury
trial, and the defendant then personally waives that right in writing or in open court on
the record." 317 Kan. at 230.

In Apprendi, the Court clarified that "[o]ther 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." 530 U.S. at 490.
While Hane's lifetime postrelease supervision is dictated by statute, the facts relevant to
its imposition—his age at the time he committed the crime of conviction—was not
reflected in the charges or admitted to by Hane. "The relevant statutory maximum for
Apprendi purposes is the maximum a judge may impose based solely on the facts
reflected in the jury verdict or admitted by the defendant." Blakely v. Washington, 542
U.S. 296, 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

Eliminating any doubt about Apprendi's application here, the Kansas Supreme
Court has held that "[p]ostrelease supervision is undeniably a part of the defendant's
sentence and is considered punitive." Nunez, 319 Kan. at 355. Thus, "judicial fact-finding
which increases a term of postrelease supervision beyond the 'statutory maximum'
implicates Apprendi." 319 Kan. at 355. A defendant convicted of a sexually violent crime
in Kansas is subject to a minimum 60-month term of postrelease supervision. K.S.A. 22-
3717(d)(1)(G)(i)-(ii). However, when the defendant is 18 years or older at the time of the
crime, postrelease supervision is increased to a mandatory lifetime term. K.S.A. 22-
3717(d)(1)(G)(i). Therefore, the conclusion that the defendant was 18 at the time of the
crime increases the postrelease supervision period and implicates Apprendi.

The Kansas Supreme Court considered a similar issue in Bentley where the
defendant was charged with, among other things, criminal possession of a weapon by a
convicted felon, and stipulated to a fact element of that charge, but the district court

9
"failed to obtain a jury trial waiver of the stipulated-to element before accepting the
stipulation." 317 Kan. at 229-30. A "district court must obtain a constitutionally sufficient
jury trial waiver before a defendant stipulates to an element of a charged crime." 317
Kan. at 232. Although the Bentley court found the district court erred by not obtaining a
jury trial waiver on each element of the charged crime, it declined to find that error
structural. Rather, the court said the error was "akin to a court's failure to submit an
element of the charged crime to the jury," which is "subject to harmlessness review." 317
Kan. at 233. Ultimately, because the facts showed Bentley would have stipulated to the
element of the crime even if he had been informed of his right to submit the element to a
jury, the Bentley court found the error harmless. 317 Kan. at 236. The court explained
that the disputed element was "easily provable," and that there was no suggestion that
Bentley meant to defend his case based on it. 317 Kan. at 235.

More recently, however, the Kansas Supreme Court considered a defendant's
challenge, like Hane's here, where the State failed to submit the question of his age to the
jury. Nunez, 319 Kan. at 352. After a jury found Nunez guilty of rape, a sexually violent
offense, the district court sentenced Nunez to include lifetime postrelease supervision
under K.S.A. 22-3717(d)(1)(G)(i). 319 Kan. at 355. On appeal, Nunez argued that the
district court violated Apprendi by using his age, a fact not submitted to the jury, to
enhance his postrelease supervision from 60-months to lifetime. 319 Kan. at 352, 357.
The Supreme Court considered three questions raised by Nunez' appeal: "(1) did Nunez
admit his age after a knowing and voluntary jury trial waiver; (2) if not, was the Apprendi
error harmless; and (3) if the error was not harmless, what is the appropriate remedy."
319 Kan. at 355.

The court found that Nunez did not waive "his jury trial rights with respect to the
question of his age. Nunez did not enter any plea agreement, he did not waive his jury
trial rights, and he did not stipulate or state his age in open court." 319 Kan. at 355. The
court also found that the parties did not state or dispute Nunez' age at trial. The court

10
noted that although jurors are permitted to make reasonable inferences regarding facts—
Nunez' age was just never mentioned. 319 Kan. at 355. The Nunez court determined that
the error was not harmless because there was simply no evidence of Nunez' age at trial.
319 Kan. at 356.

In Nunez, the court explained that the Apprendi rule is "about preserving and
protecting a defendant's jury trial right under the Sixth Amendment [to the United States
Constitution]," and "before a sentencing court may rely on a defense admission to
increase the defendant's sentence, that admission must have been preceded by a knowing
and voluntary waiver of the defendant's jury trial right." 319 Kan. at 354. Therefore, if the
jury trial waiver was insufficient "with respect to any defense admission, that admission
may not be considered by a sentencing court without running afoul of Apprendi." 319
Kan. at 354. This reasoning confirms that the district court's use of Hane's age, without a
sufficient jury trial waiver regarding the issue, to impose lifetime postrelease supervision
was an error—but that error is still subject to a harmlessness review.

Harmlessness Analysis

After finding an Apprendi error, this court must determine whether that error was
harmless. An "Apprendi error is harmless if the reviewing court is convinced beyond a
reasonable doubt the jury verdict would have been the same absent the error with regard
to the omitted element, and that the omitted element was also uncontested and supported
by overwhelming evidence." 319 Kan. at 356. The Nunez court cited to earlier cases
where the court had said "errors are harmless if the record contains no evidence which
'"could rationally lead to a contrary finding with respect to the element that the defendant
was over the age of 18 at the time of the crime"'" 319 Kan. at 356 (quoting State v.
Reyna, 290 Kan. 666, 682, 234 P.3d 761 [2010])." The State bears the burden of
establishing the error is harmless. State v. Wash, 320 Kan. 646, 672, 571 P.3d 568 (2025).

11
Here, the facts fall somewhere between those in Nunez and Bentley. Hane did not
have a jury trial like the defendant in Nunez, but Hane did enter a plea agreement which
is similar to what occurred in Bentley when the defendant stipulated to a fact element of
the charges . Like in Bentley, Hane's jury trial waiver erroneously omitted an element, but
unlike Bentley, the omission related to an element used to enhance the postrelease
supervision rather than a fact element of the charged offense. A panel of this court
addressed a similar issue when the defendant pled no contest to two counts of aggravated
sexual battery, and the State failed to obtain a jury trial waiver of the defendant's age.
State v. Duckworth, No. 126,677, 2024 WL 4579265, at *1 (Kan. App. 2024)
(unpublished opinion), rev. denied 320 Kan. 864 (2025).

In Duckworth, the plea advisory included Duckworth's attestation that he was 35
years old at the time he signed it. Duckworth acknowledged by his initials that he
understood the minimum and maximum penalties for both of his crimes, including that
his term of postrelease supervision would be for "Life." 2024 WL 4579265, at *1. At the
sentencing hearing, Duckworth's counsel informed the district court that he received a
copy of the presentence investigation report, which listed Duckworth's age as 35, and had
no objections to the report. The district court sentenced Duckworth to a term in prison
with lifetime postrelease supervision on each count. 2024 WL 4579265, at *1.

Duckworth challenged his lifetime postrelease supervision sentence on appeal.
The plea agreement was silent on whether Duckworth's jury trial waiver included a
finding of his age. Duckworth's plea agreement also included broad language that stated
the district court could impose the same punishment as if he had pleaded not guilty, stood
trial, and been convicted by a jury. 2024 WL 4579265, at *3. The Duckworth panel noted
the distinction between a jury trial like in Nunez, "which focuses on uncontested elements
and overwhelming evidence of an omitted element," and a plea agreement. 2024 WL
4579265, at *4. The panel aptly reasoned that when a defendant enters a plea, "no

12
evidence of anything . . . [i]s presented to a jury so it could never be uncontested or
supported by overwhelming evidence." 2024 WL 4579265, at *4.

The Duckworth panel then considered the harmlessness test enunciated in Bentley:
"An admission that lacks a valid jury trial waiver appears analogous to the omission of an
element of the offense, as described in Bentley, when there was an ineffective stipulation
to an element." 2024 WL 4579265, at *5. The panel was "firmly convince[d]" by the
record that Duckworth would have elected to waive a jury trial on the age issue had he
been fully informed of his right to submit that issue to a jury on the State's evidence.
2024 WL 4579265, at *6. The Duckworth panel also considered the harmlessness test
under Nunez: "[E]ven if the traditional harmless error test applies, the State has shown
beyond a reasonable doubt the error did not affect the outcome in light of the entire
record." 2024 WL 4579265, at *6.

As in Duckworth, the error here is harmless under either test. While neither the
Bentley nor Nunez test perfectly fits the facts here, they both provide useful guideposts. In
Bentley, the defendant stipulated to an element of a crime and the court failed to ensure
the defendant waived his right to a jury trial on that element—which is similar to what
occurred here, where the court failed to obtain a jury trial waiver for the age element
necessary to impose lifetime postrelease supervision. In both circumstances, the missing
element was essential to either the conviction or the sentence.

Like the defendants in Nunez and Duckworth, Hane does not contend he was under
the age of 18 when he committed the crime of conviction. Additionally, Hane
acknowledges that he confirmed he was 52 years old when he signed the Agreement. He
filled in the blanks of the Agreement by handwriting his age and years of school: "I am
52 years old and have completed 14 years of school." Hane also confirmed his age on the
record at the plea hearing. There is no indication that Hane's age could have or would
have been a contested issue at trial. However, unlike in Duckworth, Hane's plea advisory

13
document erroneously stated he would be subject to 24 months' postrelease supervision
rather than the statutorily mandated lifetime postrelease supervision. Additionally, at the
plea hearing, the district court confirmed Hane's understanding that he would "be looking
at a post-release supervision period, commonly known as parole, of 24 months."

Despite these misstatements about the term of postrelease supervision, this court
finds nothing in the record suggesting a reasonable possibility that the failure to inform
Hane about his right to a jury regarding the fact of his age impacted his decision to plead
guilty pursuant to the Agreement. Hane was originally charged with two counts of rape, a
severity 1 person felony, and two counts of domestic battery. For the rape charges, Hane
faced a minimum presumptive prison sentence of 147 months and lifetime postrelease
supervision. K.S.A. 21-6804(a); K.S.A. 22-3717(d)(1)(G), (d)(5)(A). In exchange for his
agreement to plead guilty, the State amended the charges to two counts of aggravated
sexual battery, a severity level 5 person felony, which carried a much shorter possible
prison term of 31 to 34 months. See K.S.A. 21-6804(a). In both instances, Hane faced
lifetime postrelease supervision. Moreover, the Agreement did not guarantee Hane only
24 months of postrelease supervision. In fact, the Agreement clearly stated that the court
was not bound to follow the sentencing terms in the Agreement and that Hane was
subject to the maximum penalty prescribed by law for those crimes:

"I understand from discussion with my attorney, and I have been advised by the
court, that regardless of the plea agreement between myself, through my attorney, and the
County Attorney, this court is not bound to agree to, nor to accept, the terms of the plea
agreement. I further understand that if I enter a plea of guilty or nolo contendere (no
contest), this court may impose against me any or all of the maximum penalties and the
maximum fines in combination, . . . and may take whatever other action the court deems
appropriate and which is permitted by law, to ensure the public safety." (Emphasis
added.)

14
While the Agreement incorrectly stated the postrelease supervision length, that
was not guaranteed, and there is no indication that Hane's willingness to plead guilty to
the lesser offenses related in any way to the amount of postrelease supervision that would
be imposed. Hane's age met the statutory requirement, was easily proven, was affirmed in
open court, and there is no indication Hane could have defended against it had he gone to
trial. Moreover, at sentencing the district court correctly explained that Hane was subject
to lifetime postrelease supervision. This court finds no reasonable possibility that the
failure to inform Hane of his right to have a jury determine whether he was at least 18
years old at the time of the crime impacted his decision to enter the Agreement. Other
panels of this court have reached this same conclusion when faced with similar facts. See
Duckworth, 2024 WL 4579265, at *6; State v. Cook, No. 119,715, 2019 WL 3756188, at
*2 (Kan. App. 2019) (unpublished opinion) (no violation when guilty plea included
defendant's age and he openly admitted his age in open court); see also State v. Sanders,
65 Kan. App. 2d 236, 253, 563 P.3d 234 (Apprendi violation harmless when jury not
asked to find defendant was over 18 but officer testified defendant was 43 years old and
defendant did not contest it), rev. denied 320 Kan. 867 (2025).

However, a panel of this court, under strikingly similar facts, recently found that
the harmlessness standard in Bentley did not apply to the State's failure to obtain a jury
trial waiver as to a finding of the defendant's age for the purpose of imposing lifetime
postrelease supervision. State v. Contreras, 66 Kan. App. 2d 182, 190-91, 579 P.3d 1278
(Kan. App. 2025). In Contreras, the panel determined that the issue was more akin to
Nunez, and found the error was not harmless. While the issue in Bentley—the failure to
obtain a sufficient jury trial waiver for every element of the charged offense—is different
than the failure here to obtain a sufficient jury trial waiver related to a finding of the
defendant's age, this court finds them analogous.

This case is not about whether the failure to submit an element to a jury was
harmless as in Nunez, but about whether the failure to notify the defendant of a right to

15
submit the element of their age to a jury (when the defendant has not elected to submit
any other elements of a case to a jury) was harmless. In Nunez, the defendant opted to
have a jury find each element of the charged offenses beyond a reasonable doubt—but
the jury was presented with no evidence of defendant's age. That poses a different
analysis than here where the defendant chose not to have a jury trial but instead entered a
plea agreement. When a defendant has knowingly and voluntarily waived their right to a
jury trial as to the essential elements of the charged crimes, the harmlessness of a failure
to obtain a sufficient waiver of their age related to postrelease supervision must be
viewed within that framework.

However, even if this court applies the traditional harmlessness standard
articulated in Nunez, the error here is harmless. As in Brown, there is nothing in the
record that "'could rationally lead to a contrary finding with respect to the element that
the defendant was over the age of 18 at the time of the crime.'" State v. Brown, 298 Kan.
1040, 1049, 318 P.3d 1005 (2014) (quoting Reyna, 290 Kan. at 682). Hane chose to
waive his right to a jury trial on the essential elements of his charges and does not
contend he was under 18 at the time of the crime. Hane admitted his age of 52 and birth
year of 1970 in the Agreement and affirmed his age in open court. Therefore, this court is
convinced beyond a reasonable doubt that Hane's age at the time of the criminal offense
was uncontested and supported by overwhelming evidence and the outcome—Hane's
guilty plea—would have been the same had the district court obtained a sufficient jury
trial waiver regarding the issue of his age.

In an alternative argument, the State contends that a district court does not engage
in judicial factfinding in violation of Apprendi by concluding that a defendant in an adult
criminal proceeding is at least 18 years old if there is no record or argument to the
contrary. The State also argues that lifetime postrelease supervision is the general rule
and that the burden was on Hane to show he fit in the 60-month exception by presenting
evidence he was under 18 years old. For example, the State points out that before K.S.A.

16
22-3717 was amended in 2017, the statute mandated lifetime postrelease supervision for
everyone convicted of a sexually violent crime, regardless of age. The State concedes it is
raising these arguments to preserve them for review by the Kansas Supreme Court in
recognition that this court is duty bound to apply the legal precedent as elucidated by that
court. State v. Vrabel, 301 Kan. 797, 809, 347 P.3d 201 (2015). Therefore, this court will
not engage in hypothetical analysis but will stand on application of the current legal
standards.

CONCLUSION

Pursuant to the Agreement, Hane pled guilty to two sexually violent crimes which
carried a statutory term of lifetime postrelease supervision for defendants at least 18 years
old at the time of the crime. Consistent with the statutory requirement, and the district
court's conclusion that Hane was well over 18 years old at the time of the crime, the court
sentenced Hane to a term of imprisonment and lifetime postrelease supervision.
However, the Agreement did not sufficiently waive Hane's right to a jury trial on the
issue of his age—nor did the Agreement unambiguously waive Hane's right to appeal
regarding this issue.

While the district court's use of Hane's age to enhance the imposed postrelease
supervision violated Apprendi because it failed to obtain a sufficient jury trial waiver on
the issue, the error was harmless. Hane entered a beneficial plea agreement that stated his
age and birth year, he admitted his age at the plea hearing, and there is nothing suggesting
Hane could have raised a defense to his age at trial. The Agreement also stated that the
court could impose the maximum sentence despite the parties agreeing to more favorable
terms. This court is convinced beyond a reasonable doubt that the fact of Hane's age
would not have been otherwise decided at trial and that Hane would have still entered the
beneficial plea agreement had he been presented with constitutionally sufficient notice
and opportunity to waive his jury trial right regarding his age.

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Affirmed.

18