April 17th. The Kansas Supreme Court has issued its opinion in State v. Pennington (No. 100,261) a motion to correct an illegal sentence. In a unanimous decision, written by Justice Nuss, the Court rejected Reginald Pennington’s claim that his life sentence for second-degree murder was an illegal sentence. Note: Former Chief Justice Kay McFarland was still a member of the Court at the time this case was argued but took no part in the decision. Her place was taken by Court of Appeals Judge Christel Marquardt.
In 1997 Pennington was charged with second-degree murder over the strangulation death of Caresa Akins in Wyandotte County. He was arraigned for the lesser included offense of voluntary manslaughter. Prior to trial, the State filed an amended information, again charging Pennington with second-degree murder and the District Court filed a memorandum opinion concluding that there was sufficient probable cause to support charging him. Pennington was convicted by a jury and sentenced to life imprisonment with parole eligibility after 10 years. Pennington’s direct appeal was rejected by the Kansas Supreme Court in 2000.
Pennington filed this case to correct an illegal sentence, arguing that there were defects in his trial including prosecutorial misconduct in his being charged with second-degree murder twice, without the first charge being dismissed. He argued that he was not properly charged with second-degree murder and therefore could not have been convicted of it. The District Court summarily rejected Pennington’s claim without holding a hearing, leading to this appeal.
Pennington argued two things. Firstly that he should have been granted a hearing on his claim, secondly that he should prevail on it. The Kansas Supreme Court rejected both positions in a brief opinion. It first notes that the right to a hearing in illegal sentence correction motions is not automatic. The person claiming that their sentence is illegal must show that there is some chance of success. Here the District Court correctly determined that there was none. Kansas Law allows prosecutors some flexibility in amending information pretrial and does not require a new arraignment for each amended filing. The procedures surrounding preliminary proceedings are statutory. For Pennington to have been able to get anywhere with his case he would have had to object at trial to the lack of a new preliminary hearing and failure to dismiss the original charge. Since he did not, his right to appeal against them was deemed as waived.