defendant to successfully assert error in Kansas

2001In State v. Hunt, 257 Kan. 388 , Syl. ¶¶ 9, 10, 894 P.2d 178 (1995), the court stated: “K.S.A. 1994 Supp. 22-3424(4) states in pertinent part: “Before imposing sentence the court shall: . . . (d) address the defendant personally and ask the defendant if die defendant wishes to make a statement on die defendant’s own behalf and to present any evidence in mitigation of punishment.” This provision in K.S.A. 22-3424(4) establishes the right of a defendant to allocution, and this right is not waived by the defendant’s silence or by argument of counsel.” “For a defendant to successfully assert error

2001In State v. Hunt, 257 Kan. 388 , Syl. ¶¶ 9, 10, 894 P.2d 178 (1995), the court stated: “K.S.A. 1994 Supp. 22-3424(4) states in pertinent part: “Before imposing sentence the court shall: . . . (d) address the defendant personally and ask the defendant if die defendant wishes to make a statement on die defendant’s own behalf and to present any evidence in mitigation of punishment.” This provision in K.S.A. 22-3424(4) establishes the right of a defendant to allocution, and this right is not waived by the defendant’s silence or by argument of counsel.” “For a defendant to successfully assert error

1995In the context of the denial of allocution, we have said the following: “For a defendant to successfully assert error based upon a denial of the opportunity to present evidence in mitigation of punishment pursuant to die right to allocution in K.S.A. 1992 Supp. 22-3424(4), the defendant must make a proffer of the contemplated evidence comparable to that required by K.S.A. 60-405.” State v. Borders, 255 Kan. 871 , Syl. ¶ 4, 879 P.2d 620 (1994). *621 The same rationale applies where the trial court fails to give prior notice of a departure factor upon which it will rely.

1995In the syllabus this court stated: “For a defendant to successfully assert error based upon a denial of the opportunity to present evidence in mitigation of punishment pursuant to die right to allocution in K.S.A. 1992 Supp. 22-3424(4), the defendant must make a proffer of die contemplated evidence comparable to tiiat required by K.S.A. 60-405.” 255 Kan. 871 , Syl. ¶ 4.

2001Although we recognize that statements of counsel are no substitution for the right of allocution, State v. *828 Webb, 242 Kan. 519 , Syl. ¶ 1, 748 P.2d 875 (1988), we realize Fulton has raised no argument, or proffered any contemplated evidence, that was not argued to the trial court by defense counsel.

2001Although we recognize that statements of counsel are no substitution for the right of allocution, State v. *828 Webb, 242 Kan. 519 , Syl. ¶ 1, 748 P.2d 875 (1988), we realize Fulton has raised no argument, or proffered any contemplated evidence, that was not argued to the trial court by defense counsel.

1998In State v. Gideon, 257 Kan. 591, 621 , 894 P.2d 850 (1995), the Supreme Court held that in order for a defendant to successfully assert error based on the trial court’s failure to give notice of *763 the factors it intended to rely on for departure, “[t]he defendant must make some proffer of the evidence he would present (or the argument he would make) to refute the factor before this court will find reversible error.” Defendant made no such proffer.

1998In State v. Gideon, 257 Kan. 591, 621 , 894 P.2d 850 (1995), the Supreme Court held that in order for a defendant to successfully assert error based on the trial court’s failure to give notice of *763 the factors it intended to rely on for departure, “[t]he defendant must make some proffer of the evidence he would present (or the argument he would make) to refute the factor before this court will find reversible error.” Defendant made no such proffer.