Convicted Killer Could Face Retrial

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Convicted killer, Kevan Kuhlman, will learn at a July 11 hearing whether the case against him will be remanded to a grand jury or go directly to trial.

Kuhlman's case is back in court to settle a legal technicality arising from a plea agreement he accepted a year after a grand jury indicted him of first-degree murder.

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Kevan Kuhlman

At that time, Kuhlman pleaded to the lesser charge of second-degree murder, which led to a 20-year sentence for the 2001 murder of his roommate, Susan Birchak.

A year after the plea agreement was settled, Kuhlman filed a post-conviction relief appeal (PCR), which Gila County Attorney Daisy Flores said indicated he misunderstood the terms of his plea agreement.

"He mistakenly believed he would be entitled to earn good-time credits while incarcerated," Flores said. "Kuhlman filed (for the PCR) alleging he received a longer sentence than he bargained for. He requested to be allowed to withdraw from the plea."

Kuhlman appealed that plea agreement last year, and Judge Robert Duber granted his request in December 2004.

By filing the PCR and sending the case back to trial, Kuhlman runs the risk of being convicted of the more serious charge.

"He is facing a first-degree murder charge, rather than what he pleaded to, which was second-degree murder," Flores said. "The state takes a risk too by going back to trial."

According to Flores, the plea agreement required Kuhlman to serve his 20 years without time off for good behavior.

The hearing was originally set to take place in Duber's courtroom, where in February 2003, the judge sentenced Kuhlman to 20 years in prison.

Due to the recent death of the Duber's wife, however, the case will be heard in Payson by Superior Court Judge Peter Cahill, beginning at 4 p.m., July 11.

At the hearing, Flores said she will argue that Kuhlman's case should go directly to trial and that he should be charged with first-degree murder. The trial, if it continues as scheduled, will begin Aug. 23.

Flores said she anticipated Kuhlman's attorneys will argue for a grand jury hearing, hoping for lesser charges than first-degree murder.

Kuhlman was arrested by Payson Police Oct. 9, 2001 after they responded to a call from Kuhlman who reported that Birchak, 52, was not breathing.

An autopsy revealed that Birchak, a program manager at a local television station, had been strangled.

A week after Birchak's death, a grand jury indicted Kuhlman on first-degree murder.

Kuhlman originally faced a possible death sentence until the U.S. Supreme Court, ruling that a jury, not a judge should decide whether a murder case warrants the death sentence, invalidated capital punishment in five states, including Arizona.

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