photo by: Kim Callahan/Journal-World

Reston Phillips holds hands with a young woman behind him during closing arguments in his rape trial on Thursday, May 15, 2025.

A convicted rapist who was supposed to be sentenced later this week is asking for a new trial, claiming that the judge and the man’s trial attorney erred in instructing the jury.

The defendant, Reston Phillips, was convicted of rape in May after unsuccessfully putting on a “sexsomnia” defense, claiming that he was asleep during the sex act and hence not responsible.

Phillips was scheduled to be sentenced for the 2017 rape on July 31, but that date was pushed back until Sept. 12 after his trial attorney withdrew and a new attorney was hired. The sentencing has again been delayed by months to accommodate a new prosecutor being assigned to the case and multiple recent defense motions.

The previous prosecutor, then-Deputy District Attorney David Greenwald, had asked Judge Amy Hanley to jail Phillips immediately after the jury found him guilty, but Hanley has let him remain on bond at his mother’s home in Topeka, with GPS monitoring and no passport, until sentencing, now scheduled for Nov. 25.

Phillips’ new defense attorney, Cooper Overstreet, in his motion for a new trial argues that Phillips’ trial counsel, Joe Huerter, was ineffective because he did not request that an instruction be given to the jury that Phillips must have committed a “voluntary” act to be found guilty. The sexsomnia defense is that Phillips couldn’t have voluntarily had sex because he was asleep at the time.

Even though Huerter didn’t request that specific instruction — and hence didn’t preserve the issue for appeal — Overstreet argues in his motion that Hanley should have given the instruction of her own accord and erred in not doing so.

As the Journal-World reported, Hanley instructed the jury that it could find Phillips guilty of rape only if he had “knowingly” engaged in sexual intercourse with the woman. After about five hours of deliberation, jurors found that Phillips had knowingly engaged in sex, rejecting his sexsomnia defense.

In addition to the motion for a new trial, Overstreet has also asked the court for an appeal bond, which would let Phillips stay out of prison until an appeal has been decided.

He has also requested a durational departure in sentencing from the presumptive 147-165 months to 78 months. In support of that, Overstreet argues that Phillips, in his early 30s, is a relatively young man with no violent criminal history, has supportive family, has dutifully attended court appearances, is at low risk of reoffending and has a sleep disorder that played a role in the offense.

“This case and the ongoing litigation have taken a substantial toll on his emotional and mental health,” Overstreet says in the departure motion.

As the Journal-World reported, the jury found Phillips, then 22, guilty of raping a woman eight years ago when the two were guests at a Lawrence home during KU’s graduation weekend.

Phillips was charged almost a year after the May 2017 offense, but had moved to Europe and avoided prosecution. He was apprehended in 2023 in Mexico, where he was going to meet his family for a vacation, and was brought back to the United States.