State v. Spencer, 291 Kan. 796

Background

Spencer pled guilty to two counts of aggravated indecent liberties with a child under Jessica's Law, involving a 6-year-old great-granddaughter and a similarly aged granddaughter.
Judge Dowd departed from the mandatory 25-year term to a guidelines-based sentence and also departed dispositionally to probation, imposing 155 months and post-release supervision and probation terms, all concurrent for both counts.
State appealed the departure and Spencer objected to the journal entry; a dispute arose over whether additional non-statutory factors were relied upon in granting the departures.
A post-sentencing hearing attempted to supplement the record with extra factors; the court ultimately signed a journal entry adding those factors, but the written order purported to limit the scope of factors.
The Court vacated the departures on review, holding the district judge abused discretion both in departing from Jessica's Law and in the dispositional departure, and remanded for resentencing with a new judge.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the same mitigating factors supported both departures	State argued courts should separate factors for Jessica's Law departure and guideline dispositional departure.	Spencer contends the judge used appropriate, possibly overlapping, factors for both departures.	Undifferentiated approach permitted; no required separation of factors for the two departures.
Whether reasons for departure from Jessica's Law were substantial and compelling	State contends the reasons were substantial and compelling.	Spencer contests the sufficiency of the cited factors (notably age, lack of prior record, and family support).	Several factors, especially age and lack of prior record, were not substantial and compelling; overall departure abused.
Whether reasons for the dispositional departure were substantial and compelling	State maintains dispositional factors were valid under the guidelines.	Spencer argues the dispositional reasons were not substantiated or outweighed by harm evidence.	Dispositional reasons not substantial and compelling; abuse of discretion found.
Whether the extent of the departure was abused	State seeks affirmation of the extent.	Spencer contends the extent was improper given lack of solid support.	Not reached on remand since departures were vacated; scope will be addressed by new judge.
Whether the offense severity level used on remand is proper	State argues severity level 1 should apply.	Spencer argues severity level should reflect a different calculus under Gracey/related cases.	Court allows reevaluation on remand; rule of lenity requires appropriate grid determination; severity level to be reassessed by the new judge.

Key Cases Cited

State v. Gracey, 200 P.3d 1275 (2009) (definitive framework for evaluating departures from Jessica's Law and associated standards)
State v. Blackmon, 176 P.3d 160 (2008) (remand to clarify departure reasons when Jessica's Law sentence vacated)
State v. Ortega-Cadelan, 194 P.3d 1195 (2008) (two-part analysis of whether mitigators are substantial and compelling under Jessica's Law and guidelines)
State v. Martin, 175 P.3d 832 (2008) (standard for reviewing non-Jessica's Law departures; de novo review for some issues)
State v. Murphy, 19 P.3d 80 (2001) (record governs the reasons for departure; sentencing on-record findings required)
State v. Minor, 997 P.2d 648 (2000) (analysis of harm/less-than-typical-offense factor in departures)
State v. Ballard, 218 P.3d 432 (2009) (examples of departures from Jessica's Law and grid sentence discussions)