By Amy Renee Leiker, The Wichita Eagle
Bo Dana Rupert wants to come home.
Nearly two years ago, he pleaded guilty to several crimes in a Montgomery County courtroom. But the plea agreement had an unusual condition:
Leave the state and don’t ever come back — or risk facing more charges.
Rupert heeded the warning and served his sentence of probation in another state because, an ACLU attorney says, he didn’t think he had other options.
But the ACLU says the demand that Rupert keep off of Kansas soil is tantamount to exile, an antiquated form of punishment that hearkens back “to vigilante justice of the Old American West.”
The organization filed a motion last week denouncing the “bizarre and illegal sentence” and calling for a state court judge to correct it.
“Every court that’s considered this question (of statewide banishment) has found that it’s unconstitutional,” said ACLU of Kansas Legal Director Lauren Bonds, who is representing Rupert in the matter with fellow ACLU attorney Zal Shroff.
“This is clearly a significant departure from what an appropriate or statutorily recognized punishment would be.”
Larry Markle, the Montgomery County attorney, did not respond to a request for comment.
The plea agreement was negotiated by Markle and Rupert’s public defender Heath Lampson in a 2017 criminal threat and false reporting case. It calls for Rupert to “transfer his corrections to another State and not return to Kansas.”
The agreement goes on to say that if Rupert “does return to Kansas then the terms of this agreement have been violated and the County Attorney may consider filing all other charges for additional offenses not filed now.”
PROBATION, OUT OF STATE
Rupert, now 25, was convicted of three counts of felony criminal threat and three misdemeanor counts of filing a false report in 2017, according to court records. Coffeyville police arrested him that July after he allegedly cursed at a city commissioner following a public meeting where he criticized officials for ending his appointment to a city board, according to a Montgomery County Chronicle report.
Markle originally charged Rupert with one count of disorderly conduct and one count of criminal threat connected to a confrontation Rupert had with a reserve deputy, Christopher Myers, during a city Independence Day Celebration on July 8, 2017. Markle later amended the charges to include one count of criminal threat over a March 30, 2017, online threat, and three counts of interference with law enforcement connected to complaints of alleged misconduct Rupert lodged against Coffeyville police Chief Kwin Bromley and police officer Mike Bradley on July 10 and July 25, 2017.
Rupert pleaded guilty to two criminal threat charges and three filing false report charges on Aug. 17, 2017, court records show.
The plea agreement also included a provision that prosecutors used to force Rupert into later pleading no contest to a third count of criminal threat. The provision was meant to inflate his criminal history score to the maximum.
Rupert’s plea agreement says that if his score doesn’t increase to a high of A then “additional criminal threats will be filed and he will plead to as many as necessary to elevate his score to an A.” Defendants with higher scores typically receive longer sentences than people with lower scores for the same offense.
Ultimately, Montgomery County Chief Judge Jeffrey Gettler ordered Rupert to serve several months of incarceration, but suspended that sentence and granted probation.
‘DON’T STILL BE HERE’
Bonds, the ACLU legal director, said Rupert agreed to the banishment because he believed he had no other choice. She said Rupert’s probation officer told him it wasn’t enforceable, but Rupert’s defense attorney told him, “Don’t still be here tomorrow when the sun comes up.”
“We do know what Bo understood from the plea negotiations and conversations that were had between his defense counsel and Mr. Markle. And frankly, they just wanted … Mr. Rupert out of the state,” Bonds said, adding that Rupert had “a pretty significant reputation in Montgomery County for opposing government authority and checking government misuse.”
He has a similar reputation in Lewis County, Washington, where he was reportedly known for filming law enforcement, according to news reports. In 2015, a Centralia, Washington, police officer sought an anti-harassment order against Rupert over comments and photos Rupert posted online about the police, the officer and the officer’s family, a Daily Chronicle article says.
“I think he got himself in the cross hairs ... and I think that’s why (they) wanted him out of the community and out of the state,” Bonds said of Rupert and his Montgomery County case.
“Mr. Rupert misses his home, has family members in Kansas whom he wants to see and wishes to return to the State without the fear of violating his criminal sentence or otherwise risking exposure to additional charges.”
Bonds contends exiling someone from an entire state is unconstitutional.
“Frankly it’s just so patently illegal and has been for so long that it’s not written into any specific statute,” she said.
Wichita defense attorney Charles O’Hara, who isn’t involved in the case, agrees.
“It (banishment) used to be done regularly. My understanding is that it is not legally allowed now,” he said, adding: “If there’s any illegal sentence then the court has a duty to correct it.”
Even though Rupert’s plea agreement tells him to leave the state, he is currently listed as an absconder with the Kansas Department of Corrections. His whereabouts are listed as unknown on KDOC’s website, although an ACLU press release says he’s in Texas.
It’s not the first time the ACLU has taken on Markle. Last summer, the national ACLU and ACLU of Kansas filed a lawsuit that seeks to force Markle to notify criminal defendants about diversion programs.
In Rupert’s case, “the only just outcome for this situation would be for this banishment … to be eliminated and removed and for the rest of his sentence to be deemed satisfied,” Bonds said.