The Kansas Supreme Court issued an order Friday instructing Brown County District Court to sentence a defendant for the third time because the perpetrator was punished by a judge for successfully exercising a legal right to appeal.

Justices of the Supreme Court had concluded "judicial vindictiveness" infected a judge's sentencing only once previously in an appeal decided more than two decades ago. 

In the Brown County case, Judge John Weingart sentenced a man to 30 years in prison for aggravated sodomy. Defendant Wyatt Brown argued on appeal the sentence was incorrectly articulated by the judge. He prevailed with that technical argument and resentencing was ordered.

Weingart responded by adding one year to Brown's sentence after the victim's family complained they were traumatized by an appellate process forcing them to interrupt their healing and to relive a horrible episode. Brown's lawyers appealed on grounds the increased prison time was vindictive. The Supreme Court agreed and instructed Brown to be sentenced a third time.

Justice Carol Beier said in the Supreme Court opinion the district court judge "simply was not free to lengthen Brown's prison term because of his successful appeal."

"We determine that defendant Wyatt G. Brown's due process rights were violated when he received more prison time," her opinion said.

Originally, a plea deal stipulated the Brown County prosecutor would accept a penalty less than the life sentence under standards of Jessica's Law and a term in prison below Kansas' standard sentencing grid range of 554 months to 618 months. In exchange, Brown agreed to plea no contest and waive his right to a trial that would have compelled the victim to testify.

The Kansas Court of Appeals, based on the technicality, ordered Brown to be resentenced because the judge failed to properly declare on the record justification for both departing from the life sentence under Jessica's Law and reduction of the sentence to 360 months.

A member of the victim's family appearing in court for resentencing of Brown said the turn of events "revictimized our child and the entire family. We thought the past sentencing date was this family's closure, that we could all start to heal."

The family member continued: "Mr. Brown wants fair. Well, where is fair for our child, for our family? At this time, we as a family, for our child, would like to ask the court to consider the further damage this has done. We would like to see further time added."

Weingart, before expanding Brown's sentence to 372 months, said, "I really understand what the victim's mom is telling me. I really, really do."

A divided Court of Appeals rejected the defendant's claim escalation of the sentence was unconstitutional. However, the Supreme Court found "actual vindictiveness, in the legal sense of the phrase, infected Brown's resentencing. Although we are confident the district judge bore no personal ill will toward Brown, subjective malevolence is not required."

Beier's decision said U.S. Supreme Court and state Supreme Court precedent were sufficient to find "Brown was deliberately penalized for the exercise of a legal right to appeal and his success in that effort."

Brown, 30, was convicted of aggravated sodomy for assaulting a child under the age of 14 in 2013. He's incarcerated at El Dorado Correctional Facility, where he was convicted in 2017 of battery of a corrections officer. His earliest possible release date would be in 2050.