A 23-year-old man sentenced in August to 32 months in prison for involuntary manslaughter in the 2012 death of Nicholas Sardina is free pending his appeal — a development that came as a surprise to the prosecutor in the case.

Justin Gonzalez, who was convicted in June, filed a notice to appeal both his conviction and his sentence the day after his sentencing hearing. The state appellate court added Gonzalez’s appeal to its docket in November and he was granted a $50,000 appeal bond in December, according to Kansas Court of Appeals records.

Justin Gonzalez is pictured Dec. 23, 2014, the day of his release from the Hutchinson Correctional Facility on a 0,000 appeal bond.

Submitted photo of Nicholas Sardina

Gonzalez, of Mission, hit Sardina, 27, of Lawrence, over the head with a beer bottle during a brawl at a party in the 300 block of West 14th Street in the early-morning hours of Feb. 25, 2012.

Gonzalez had argued that he was trying to protect a friend under attack by Sardina, an Iraq war veteran and former student at both Kansas and Kansas State universities. Prosecutors said Gonzalez used excessive force in striking Sardina, who later died from his injuries.

Gonzalez spent about three months in prison at the Hutchinson Correctional Facility before being freed on the appeal bond in December.

Douglas County District Attorney Charles Branson said he could only think of “a couple” Douglas County appellants who have asked for appeal bonds over the past decade that he has been with the office.

“Most people would just as soon have their time started (in prison while waiting for their appeal),” Branson said. “Appeals can take a couple years, and if at the end of it the court says, ‘yes, you go to jail,’ they have to go back and finish their sentence.”

According to court documents, the court of appeals granted Gonzalez’s request for an appeal bond after the district attorney’s office did not respond to Gonzalez’s motion asking for an appeal bond.

Branson said the response was not filed because his office was unaware that Gonzalez’s attorney, J. Ryan Erker, had notified it of the motion asking for a bond. The motion was attached to the back of a different document Erker had faxed to the office that was not examined thoroughly, so the motion went unnoticed.

“The docketing statement puts the court on notice for what the potential issues are, but it’s not the same as the official statement,” Branson said. “Typically the docketing statement is put in a file because we wait for the brief (or official statement) to be filed.”

After the court issued Gonzalez a bond and Branson’s office found out, Assistant Douglas County District Attorney Patrick Hurley “immediately prepared and filed” motions asking the court to postpone the execution of the bond and to reconsider its decision to set a bond, District Attorney’s Office spokeswoman Cheryl Wright Kunard said.

Erker told the court that it should not reconsider setting a bond for his client just because the Douglas County District Attorney’s Office did not notice the original motion.

“The primary objection … is that they did not read the legal documents and information sent to their office,” Erker said. “(Hurley’s) failure to be familiar with or respond to legal pleadings sent to their office in compliance with Kansas Supreme Court Rules is no fault of (Gonzalez.)”

The appellate court ultimately denied Hurley’s requests earlier this month, allowing Gonzalez to remain free on bond.

Branson said motions are typically sent to his office separately from docketing statements, but that his office would be more diligent after this.

“Since this issue has come up, we’re going to make sure there are not additional items attached in those statements,” Branson said.

Still, Branson said even if his office had noticed the motion, he is unsure it would have responded to the document. Though rarely requested, the Kansas Court of Appeals generally sets appeal bonds for appellants who ask for them, Branson said.

“Generally courts default to the notion that everyone is entitled to a bond,” Branson said. “Honestly, I do not know if we would have filed a response. It’s always within the court’s discretion (whether or not to set a bond.)”

If the state court of appeals does not overturn Gonzalez’s conviction or demand a retrial, it can order that a different sentence be given to Gonzalez, Wright Kunard said.

The Kansas Sentencing Guidelines suggest a minimum 31 months and a maximum of 34 months for a crime of Gonzalez’s severity. When Douglas County District Judge Peggy Kittel handed down the 32-month sentence, she gave Gonzalez the standard sentence.

However, with Gonzalez’s lack of criminal history, the involuntary manslaughter conviction placed him in what is known as a “border box,” meaning that Kittel could have chosen to let Gonzalez serve his 32-month sentence either in prison or on probation.

At the sentencing hearing, Gonzalez’s trial attorney, Sarah Swain, argued for probation, telling the court that Gonzalez completed an internship with an accounting firm in August and had gained full-time employment, which he received “even in the midst of the charges.”

“This is about what is best for the community,” Swain told Kittel.

Kittel chose prison for Gonzalez, but the court of appeals could come to a different conclusion when it hears Gonzalez’s appeal. Appellate briefs have yet to be filed in the case.

The appeal is Gonzalez’s third shot at freedom. His June conviction was at his retrial. His first trial in December 2013 ended in a hung jury.

Gonzalez used a bondsman, according to his bond statement, meaning he paid 10 percent — or $5,000 total — to be released from prison Dec. 23 pending his appeal.

Gonzalez’s pretrial bond after his initial arrest in 2012 was also $50,000. He paid that bond within 24 hours of his arrest and had not spent a full day in jail before he was ordered into custody after his August sentencing hearing.

The Gonzalez family declined to comment, and attempts to reach Gonzalez’s attorney were unsuccessful.