State v. Spencer, 248 P.3d 256

Background

Spencer pleaded guilty to two counts of aggravated indecent liberties involving a great-granddaughter and a granddaughter, offenses qualifying as off-grid Jessica's Law crimes.
Judge Dowd departed from Jessica's Law's mandatory 25-year minimum, sentencing to 155 months under the guidelines with 36 months post-release supervision and 36 months probation, and ordered concurrent terms for both counts.
State sought to appeal, arguing the judge relied on overlapping mitigating factors for both departures and that the record failed to show substantial and compelling reasons.
Spencer objected only to the journal entry; the court later supplemented the record to include additional factors, which the State opposed, and the journal entry ultimately reflected the State's proposed factors.
Appellate review concluded the trial court abused its discretion in departing from Jessica's Law and in the dispositional departure, vacating the sentences and remanding for resentencing before a new judge.
On remand, the new judge may re-evaluate the factors and potentially grant or deny both departures, including any durational or dispositional adjustments, with the applicable grid sentence determined by the crime's severity level absent age-disparity considerations.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Should the same mitigators justify both departures?	State argues separate, distinct bases were required for each departure.	Spencer argues the court may rely on the same factors for both departures.	Undifferentiated approach warranted; same factors may justify both departures.
Were the reasons for departure from Jessica's Law substantial and compelling?	State contends evidence supported substantial and compelling reasons.	Spencer contends the reasons were insufficient or not properly supported.	No; court abused discretion; reasons not substantial and compelling.
Were the reasons for the dispositional departure from the guidelines substantial and compelling?	State argued the same four factors supported a dispositional departure.	Spencer argued the factors did support but were outweighed by others.	No; court abused discretion; dispositional departure not supported.
Did the trial court abuse its discretion in the extent of the departures?	State argued for proportionate departures within grid and guideline framework.	Spencer argued the extent exceeded permissible discretion.	Yes; judge abused discretion in extent of departure.
On remand, may a new judge re-evaluate and grant/deny departures and consider a durational departure?	State sought limited remand guidance consistent with prior rulings.	Spencer sought opportunity for reevaluation and potential adjustments on remand.	Yes; remand permissible to re-evaluate departures and apply correct grid guidance.

Key Cases Cited

State v. Gracey, 288 Kan. 252 (2009) (clarified standards for departures from Jessica's Law and review de novo on certain issues)
State v. Murphy, 270 Kan. 804 (2001) (record governs the reasons for departure from sentencing; on-record articulation required)
State v. Blackmon, 285 Kan. 719 (2008) (remand for clarification of downward departure reasons; limits applicability in this context)
State v. Ortega-Cadelan, 287 Kan. 157 (2008) (rejects per se substantiality of listed mitigators; requires case-specific substantiality analysis)
State v. Martin, 285 Kan. 735 (2008) (clarifies standards for non-Jessica's Law sentencing departures and abuse of discretion review)