photo by: Kim Callahan/Journal-World

Reston Phillips, who was convicted of rape in May, appears Tuesday, Nov. 25, 2025, in Douglas County District Court.

Knowing that he could be going to prison for years, a convicted rapist fervently hugged his new wife Tuesday before the judge entered the courtroom to hear several motions in his case and to potentially sentence him.

About an hour into the hearing, however, it was clear that Reston Phillips, who got married shortly after his May conviction, would not be going to prison but would be returning to his mother’s Topeka home for the holidays and for at least two more months, possibly more, of relative freedom.

Tuesday was the third time that Phillips’ sentencing had been delayed, albeit for legally necessary reasons. Before his conviction six months ago, his trial had also been delayed numerous times, first because he had moved to Europe as a rape allegation loomed over his head and then because his attorney needed time to hire the expert who would eventually testify that Phillips had committed the sex act during his sleep and hence was not responsible for it.

That attorney, Joe Huerter, found himself on the witness stand Tuesday as Phillips’ new attorney, Cooper Overstreet, claimed he had provided ineffective of counsel, entitling his client to a new trial. The Douglas County District Attorney’s Office is opposing that claim, which apparently hinges on whether Huerter erred when he failed to request a jury instruction regarding a “voluntary act.” The jury had been instructed that Phillips could not be convicted if he had not acted “knowingly.” The word “voluntary” wasn’t mentioned.

photo by: Kim Callahan/Journal-World

Attorney Joe Huerter, who is now accused of ineffective assistance of counsel, testifies Tuesday, Nov. 25, 2025, in Douglas County District Court.

Huerter’s testimony came as a surprise to both the court and to Senior Assistant District Attorney Eve Kemple, who told Judge Amy Hanley — who previously had expressed frustration over delays in the case —  that she had not been informed that Huerter would testify until just before Tuesday’s hearing.

On the stand, Huerter said that his defense theory had been that Phillips, in the throes of “sexsomnia,” had no awareness of what was happening as he was sleeping and hence could not develop the “mens rea” — a legal term for intent or state of mind — to commit rape. Huerter told Overstreet that he had not researched “voluntary act” as legally distinct from “knowingly” and did not request that instruction for the jury.

Kemple, though, argued in her response to the motion for a new trial that a “voluntary” instruction was not supported by the evidence or by the law. The mental culpability that is required for a rape finding was satisfied when the jury found Phillips knowingly committed the crime, she wrote.

Kemple and Overstreet did not get an opportunity Tuesday to make oral arguments in the case as Judge Hanley halted the proceedings immediately after Huerter’s testimony, saying she needed time to review what the “soft-spoken” Huerter had just said on the stand.

“His testimony goes directly to the heart of the ineffective assistance of counsel case,” she said, then ordered a new hearing for Jan. 22.

On that date, she will hear the motion for a new trial, as well as, if necessary, Phillips’ requests for a downward departure in sentencing and an appeal bond, which would enable him to remain out of prison as his case goes through the appellate process.

Kemple, calling Phillips a flight risk, has opposed all three motions. If his motion for a new trial is denied, he should begin immediately serving his presumed sentence of about 12 years, or the standard sentence for a rapist with no criminal history, she argued — not the 6.5 years Phillips has requested.

As the Journal-World reported, a jury last spring rejected Phillips’ claim that the sex act had innocently occurred while he was asleep.

Phillips argued at his trial that “sexsomnia” made him do it. Sexsomnia refers to sexual activity that occurs during sleep without the person’s knowledge. But the victim testified — and the jury believed — that Phillips had acted with full knowledge.

The two, then in their early 20s, had been spending the night at a friend’s house on separate couches during KU’s graduation weekend eight years ago. Phillips said they had been chatting after a night on the town and ended up cuddling on one couch; the next thing he knew, he said, he woke up, his pants were down and he was being accused of rape. The woman, though, said she had zero interest in Phillips, had gone to sleep alone on the couch and had awakened to Phillips raping her from behind. She reported the incident immediately to police.

Phillips was not apprehended until six years after the incident, in 2023, when he flew to meet his family for a vacation in Mexico, where he was arrested and sent back to the United States.

photo by: Kim Callahan/Journal-World

Reston Phillips, left, appears with his attorney, Cooper Overstreet, Tuesday, Nov. 25, 2025, in Douglas County District Court.