*1 (898 1165) P.2d 71,646 No. Kansas, S. Favela
State of v. a/k/a Appellant, Jose Rivas, S. Appellee. Jose filed Opinion 23, 1995. June Schroeder, Keith E. assistant and Robert T. county attorney, Stephan, attorney general, appellant. Durr, M. oí Philip Sterling, appellee. Larson, Malone, and Tom District Rulon,
Before P.J., J., Judge, assigned. *2 to The State court’s decision Rulon, appeals J.: sentence both durational dispositional
grant in the defendant’s conviction of one count of murder attempted 21-3301 and K.S.A. 1994 the second K.S.A. degree, Supp. with 21-3402. We vacate the sentence and remand the cause Supp. directions. SUMMARY
FACTUAL 27, 1993, to On Hutchinson were dispatched September police the site of a this Willard gang fight. During gang fight, reported defendant stabbed defendant’s brother. The LaGrange allegedly and several others left the scene in a Chevrolet Monte Carlo. Even- car driver to officers tually, signaled stop police spotted the driver refused to the vehicle. Initially, stop. Ultimately, lived. driver the car in front of the house where stopped LaGrange left the car and said he was Defendant carrying handgun going kill to inside the house and Defendant refused LaGrange. police go Instead, to orders to defendant said he was going drop gun. kill because had stabbed his brother. During LaGrange LaGrange confrontation, this defendant back the action of the gun pulled show was loaded. After with gun prolonged negotiations police defendant surrendered the police, weapon. murder in the first
Defendant was later with charged attempted Ulti- assault of a law enforcement officer. degree aggravated defendant entered a of no contest to one count of mately, plea level murder the second degree, severity person attemрted crimi- murder with defendant’s felony. second-degree Attempted of 51 carries a nal score of H presumptive prison history 21-4704(a). to 59 months. See K.S.A. 1994 Supp. defendant filed a motion
Prior to asking timely sentencing, sentence. The court to depart presumptive and sentenced defendant to the defendant’s motion granted months. of 24 14 months in post-release supervision corrections for court then the defendant community placed 36 months. this
The State appeal. perfected
STANDARD OF REVIEW case involves the the Kansas This interpretation (KSGA), 21-4701 et and is Guidelines Act K.S.A. Supp. seq., said, an of law. As is often consequently question unlimited, of review on of law is and the scope questions is not bound the decision of the district court. See State v. Heffelman, in relevant
K.S.A. 1994 21-4721 reads part: “(a) A sentence is the defendant or the subject appeal by . state. . . “(d) In from a conviction a sentence that any appeal judgment imposing from the for a departs prescribed by sentencing grid crime, sentence review shall be limited to whether the *3 of fact reasons justifying departure: record; Are evidence (2) constitute substantial and compelling departure. “(e) In court review a claim that: any appeal, appellate may (1) The sentence resulted from or partiality, prejudice, oppression corrupt motive; “(f) The reverse affirm the sentence. If the may court concludes the trial court’s factual are not by supported in record or do not establish substantial and reasons for a compelling depar- ture, it shall remand the case the trial to court for resentencing.” Kansas, of the KSGAindicates that in legislativehistory part, looked to the determinant statutes of sentencing Washington, in Minnesota our Oregon, formulating sentеncing guideline Coates, scheme. of the Recommendations of the Sen- Summary Commission, to Senate Committee on tencing p. (Report Judi- 14, 1992). the case law from the ciary, January Consequently, above-noted sister states to our resolution of this helpful appeal.
Here, the State contends this court should review the issues before us as a matter lawof that such a standard would argues insure that sentences are most un- granted only usual factual situations. the State contends de novo Additionally, review this court would both the State and defendants by protect sentences different courts disparate imposed sentencing which have of what constitutes an differing interpretations atypical criminal offense. defendant, hand, on the other that the abuse of dis- argues
cretion standard of review should be Defendant adopted. argues court is the best to decide sen- always sentencing position and, issues this court should defer to the tencing consequently, court’s decision if the facts are the record. defendant contends a sentence should Accordingly, only be reviewed for an abuse of discretion court.
WASHINGTON statutеs, Under Washington may impose sentence outside the if it finds . . . that there presumptive range” are substantial and justifying exceptional 9.94A.120(2) (1994 sentence.” Code Wash. Rev. § Supp.). stated act is make the criminal “to purpose Washington accountable justice system system public by developing structures, offenders which but does not felony eliminate, . decisions sentences . . .” discretionary affecting (1994 Wash. Rev. Code 9.94A.010 § Supp.). Additionally, to: Washington guidelines designed “(1) Ensure that the for a criminal offense is punishment proportionate seriousness of the offense and the offender’s сriminal history; “(2) Promote for the law which is respect just; providing punishment “(3) Be commensurate with the on others punishment committing offenses; similar “(4) Protect the public; “(5) herself; Offer the offender an him or opportunity improve *4 “(6) Male use of the state’s resources.” Wash. Rev. Code 9.94A.010 frugal § (1994 Supp.). sentence,
When a reviewing exceptional Washington appel- late court if it reverse finds: may
“(a) Either that the reasons the are not supplied by sentencing judge supported the record which was the not a before or that those reasons do by judge justify (b) offense; sentence outside the standard for that that the sentence range excessive or Wash. Rev. Code too lenient.” clearly clearly § 9.94A.210(4) (1994 Supp.). scheme, de- the the
Under appellate statutory Washington the (1) the reasons whether termines: by supplied record; (2) whether the reasons in the by supported from the sentence justify exceptional given is sentence whether the clearly standard exceptional range; on the first of review The standard or too excessive. too lenient is examined The second is erroneous.” question “clearly question of dis- to the “abuse and the third is a matter of law” “as subject 57, 65-66, 2d 124 Wash. See State v. cretion” standard. Johnson, OREGON which of de- with review sentences statute The dealing Oregon reads in relevant from part: presumptive part a sentence that of conviction departs “In imposing any judgment appeal the rules of the State Sentencing from the prescribed presumptive Board, whether shall be limited to sentence review Guidelines from the sentence pre- of fact justifying Guidelines Board: rules of the State scribed record; “(a) Are the evidence “(b) Stat. Or. Rev. Constitute substantial departure.” 138.222(3) (1994 Supp.). § as K.S.A. 1994 the same statute substantially Oregon 21-4721(d). (1992), Wilson, Or. 826 P.2d In State v. 111 App. court should of said that the Court Appeals Oregon and reasons for court’s factual basis review depart Wilson court the decision whether to not recog depart. ing, terms “sub nor the rules defined the nized that neither the statute to withstand stantial and but compelling,” departure, must further the of the guidelines. primary scrutiny, purpose offenders is to appro guidelines Oregon punish purpose at 150. 111 Or. and ensure public safety. priately 138.222(3)(b), trial we review whether the reasons “Under ORS given the reasons аre substantial That review is limited to whether court are appropriate. is, the circumstances That we review the why explanation compelling. not sentence would accomplish so imposition exceptional that, demonstrate we If the does not of the guidelines. explanation purposes
207 138.222(5). does, must remand for ORS If it we will not disturb the resentencing. trial court’s exercise of discretion.” Ill Or. at 151. App. The defendant in Wilson did not challenge sentencing fact, but appealed depar ture sentence of 60 months presumptive range months, 24 to 39 the rеasons for the were not claiming substantial and 111 Or. at 149. compelling. App. in Wilson that courts language provides Oregon appellate
should examine the reasons court for a given by as a matter of law. If the reasons are substantial and Act, and consistent with the of the compelling purpose appel- late court will affirm the departure.
MINNESOTA The Minnesota that sentences contained in guidelines provide to be case. guidelines grid presumed appropriate every “The shall utilize the judge provided unless the individual case involves substantial sentencing guidelines circumstances.” Minnesota Guidelines Sentencing II.D, (1992). Minn. Stat. 244 When § App. making departure offense, is to consider the of the sentencing judge severity prior criminal and the stated history, purposes principles II.D, Minnesota Guidelines Minn. Stat. guidelines. Sentencing § 244 The stated of the Minnesota is to App. purpose guidelines establish rational and consistent standards which re- duce ensure the sanctions sentencing disparity of the crime and the of- proportional severity charged fender’s criminal I, Minnesota Guidelines history. Sentencing Minn. Stat. 244§ App. Court, to the Minnesotа trial court
According “[t]he Supreme has broad discretion in whether to from the sen- deciding depart Garcia, 643, (Minn. State v. 302 N.W.2d tencing guidelines, 1981), but such a decision must be ‘substantial and supported Id.; circumstances. Minnesota Guidelines compelling’ Gaines, (Minn. II.D.” State v. 1987). 408 N.W.2d The Minnesota court also stated the court’s decision to will not be overruled unless the sentence is not related to depart *6 are im- If the of the offense. the departure severity a de- is sufficient to but the record or support inadequate, proper 441 State v. will be Ferguson, upheld. departure pаrture, 1989). 508, (Minn. 509 N.W.2d App. 1992) rev. Dokken, (Minn. N.W.2d 914 v. 487
In State App. 1992, reviewed 30, Court of the Minnesota denied Appeals Sept. a a court had made a case where departure a sentence 98-month one-year prison presumptive in a sex offender with treatment program along jail on the In of duty commenting appellate years probation. the Dokken a and durational to review such departure, dispositional court said: with the does not interfere a sentencing proc- “Affirming presumptive ess, trial acted within its discretion. but states the Reversing merely somewhat, аs the but in mild interferes way, appellate
upward departure that, does not a sentence is the record finds support although appropriate, simply off when a court takes defendant places harshness. But reviewing probation with the sen- and substantial interference him in a state there is direct prison, is a exercised That needs to be carefully, power power tencing process. the trial court’s sentence.” 487 because we do not like cannot be used merely N.W.2d at 918-19. courts are more that Minnesota
We believe likely appellate durational reverse an dispositional depar- upward sentence is time when the ture that imposes the de- if is more lenient towards than the departure non-prison, fendant than by guidelines. prescribed
KANSAS
this court
After this
was filed and briefed by
parties,
appeal
Richardson,
932,
prong if court must decide findings appellate Second, the re- evidence in the record. of fact are court must determine if the court’s reasons for viewing are substantial and compelling. The first court to prong analysis requires determine if the of fact are the record. The findings supported by standard of review for of fact made long-standing findings district court is whether the evidence. Said another are such way, findings supported and relevant evidence as a reasonable find
by legal
person might
as
sufficient to
a conclusion? See Statе v.
being
support
Ratley,
2,
Kan.
By way comparison, district court’s conclusions as a matter of law. See v. Gillespie Sey- mour, (1991). However, an ap- *7 court will not the evidence or on the pellate reweigh pass credibility State, of the evidence. See v. 843 P.2d Taylor (1992). 682
The second
of our
court to
prong
analysis requires
examine the
court’s reasons for
from the
departing
and determine if those reasons are substantial and com-
guidelines
This court has defined the term “substantial” as
pelling.
referring
real,
“to
that is
not
with substance
something
imagined, something
and not
The term
ephemeral.
'compelling’ implies
forced,
the facts of a case to leave the status
go beyond
quo,
Rhodes,
790,
3,
what is
State v.
20
2d
Kan.
ordinary.”
App.
Syl. ¶
(1995).
We are further convinced the Kansas courts should examine the court’s reasons for departures light of the and die and purposes sentencing guidelines aggravating factors listed in K.S.A. 1994 21-4716 and K.S.A. mitigating Supp. (When 21-4717. See also K.S.A. 1994 21-4719 Supp. makes either or durational de- sentencing judge dispositional he or she shall consider and the enacted parture, apply purposes from a principles guidelines.). Any departure presump- tive sentence should inbe accord with the sentencing purposes that underlie these rules. Whether the reasons principles given court rise to the level of substantial and com- is a of law to review. See State v. pelling question subject plenary Wil- (1994), and State v. 57, 2d 873 P.2d 124 Wash. Johnson, son, 111 Or. Minnesota, did not our
Unlike pro- legislature Washington for our vide sentencing guide- objectives statutory purposes the Kansas lines. history, legislative according are based on the following principles: guidelines (cid:127) offenders. for serious/violent be reserved Prison should sрace (cid:127) on the harm should be based sanctions degree inflicted.
(cid:127) to socioeconomic and not related should be uniform Sanctions factors, race, location. or geographic (cid:127) can understand clear so should be Penalties exactly everyone after such are what has occurred imposed.
(cid:127) violent offenders for serious should be reserved Incarceration a threat to who safety. public present incarcerated; (cid:127) those to rehabilitate State has obligation education should not be sent but solely gain persons skills, in the local should be available as these or job programs community.
(cid:127) to allocate must rational to allow be system policymakers Coates, of the Recommendations of See resources. Summary Commission, Committee on 6-7 to Senate p. (Report 14, 1992). Guide- See also Kansas Sentencing Judiciary, Januaiy (1992), i-1-2 Manual lines goal p. (restating Implementation which the grounded). assumptions upon guidelines *8 the sen- has Our Court enacting recognized Supreme over- intended to reduce tencing guidelines, legislature addition, the while In guidelines рrotecting public safety. crowding sentences so that situated intended to standardize were similarly same, the effects would be treated offenders limiting hopefully Gonzales, v. racial or bias. State of geographic the Minnesota we are convinced For phi- comparison purposes, Dokken, v. is stated in State for as reviewing departures, losophy intent of the Kansas to the purposes irreconcilably contrary are convinced the Kansas Guidelines. We Legislature to review the courts’ intended courts sentencing appellate the “substantial standard. departure, using compelling” FOR REASONS DEPARTURE Here, the first of what State raises question portion record should be examined to determine if the the record. The State contends departure findings that an court should look for evidence which relates appellate only made the court and not look to the entire findings actually record to determine if there is evidence which might support departure.
We are convinced that court should examine appellate only if record to determine the stated of fact used to findings justify the reсord. we understand that Minnesota courts review the entire record and de- appellate termine if the is even if the proper and reasons are See State v. inadequate. Ferguson, (Minn. 1989). N.W.2d We believe Minnesota’s pro- cedure is inconsistent with the standard of review of “substantial because, evidence” such search competent arguably, review of the entire record would necessitate the the evidence and on the of witnesses. reweighing passing credibility we conclude review of the record should Consequently, be limited to whether there сourt’s stated
support findings. 21-4716(b)(l) K.S.A. 1994 contains a nonexclusive list of factors to be considered court in de- mitigating whether to from the sentence. stat- ciding depart ute reads in relevant part: “(A) The victim was an or the criminal conduct asso- participant aggressor
ciated with the crime of conviction. “(B) or The offender a minor role or role crime played passive partici- under circumstances of duress or . . . pated compulsion. “(C) offender, lacked substantial because of mental physical impairment, . . . when the offense committed. capacity judgment “(D) defendant, children, or the suffered a defendant’s continuing pattern or sexual the victim of the offense and the offense is a re- abuse physical to that abuse. sponse *9 212 “(E) of conviction or loss attributed to the current crime of harm degree an offense.”
was less than such significantly typical here defendant’s viewed
We understand case, which is a as an assault crime of conviction severity aggravated H, of criminal score 7 With the defendant’s level crime. history 14 months assault would be aggravated at- of actual crime conviction оf imprisonment. murder, which, with a criminal history second-degree tempted H, of 51 to of carries a score presumptive prison months. Kansas, above, of factors in list
As stated statutory mitigating 21-4716(b)(l). is nonexclusive. K.S.A. Consequently, law, could there is reason the as a matter of no But, shows the consider factors. the record before us not other because court felt to compelled depart primarily the defendant was court determined charged improperly with assault. should have been charged Impor- only aggravated the court said: tantly, the, the, in of facts are rise to actions “I’m aware what the that your gave I this Willard and I know case. brother stabbed
this know got LaGrange your times. He in me like have a Willard stood front of you LaGrange. just couple that, he with And it is that he here that thinks puts you got charged interesting crime, all did me —which have been was threaten would you wrong what a with a recommends assault which is threat he gun aggravated —and know, in court minimum incarceration. And Willard has been you LaGrange he what a to be more so than the knows enough probably charge ought maybe ... county attorney. case, case is a “But I see this as an assault assault aggravated aggravated level 7. And a criminal H a level 7 to 14 months history computes
penitentiary.” (Emphasis supplied.) that the defen- We conclude the reasoning is not reason dant was a substantial over-charged of the fact that the defendant entered to depart, light especially is the a no contest attorney plea. Unquestionably, prosecuting State in and he or she criminal representative prosecutions, As his or her controls the attorney, prosecution. prosecuting be discretion extends to the tо determine who shall prose- power *10 Williamson, cuted and what crimes shall be State v. charged. Kan. state, Minnesota, in at least one other
Equally important, comments state that a sentencing guidelines making dispos- itional and durational are two both separate departures, which substantial reasons. Min- require separate Guidelines, II.D.02, nesota Comment Minn. Stat. § (1992). Here, recited one merely list of factors for both We are the Kansas departures. persuaded intended for courts to rea- Legislature provide separate sons for both durational and dispositional departures.
The State also of fact are not argues evidence and that the sentence was imposed too lenient.” In of our decision that the reasons for “clearly light were not substantial and we reach need not compelling, these issues. vacated,
The sentence and the cause is remanded for resentencing. I concur
Malone, J., concurring part dissenting part: with the standard of review in this case. adopted by majority However, I dissent from the conclusion that respectfully majority’s the defendant’s sentence should be vacated. case,
In this the defendant set out to kill Willard allegedly had who stabbed the defendant’s brother in a LaGrange, recently the defendant’s car and followed gang fight. police spotted him to residence. The defendant left the car LaGrange’s carrying and told the he was inside the to kill house handgun police going surrender, ordered the defendant to but he LaGrange. police standoff, refused. the defendant calm and he During appeared officers him which he requested police give cigarette, smoked. After the defendant prolonged negotiations police, surrendered his weapon.
Prior to the defendant filed a motion for sentencing, departure. (1) The motion cited the defen- factors: following mitigating (2) dant was 17 the defendant had not years age; previously committed offenses which would be had deemed if he any felony or at least adult; an (3) victim was partic-
been aggressor, crime; (4) defendant’s which in the incident preceded ipant, stabbed was brother seriously injured by the defendant’s the defendant’s which of the incident as a result preceded victim how to as to crime; (5) the defendant’s rеspond judgment of the defendant’s because was of his brother impaired stabbing from the defendant’s harm resulted no and immaturity; age less than that, such, the harm as crime typical significantly such an offense. a letter to the case, wrote Willard The victim LaGrange, the defendant’s minimized The letter to sentencing. judge prior *11 receive that the defendant recommended crime and leniency. the defendant should a belief that stated At sentencing, judge at- rather than with assault have been aggravated charged this never cited murder. judge expressly tempted for as a reason belief judge imposed although departure, assault. for with a conviction consistent aggravated remarks, the stated: of his the conclusion At judge Durr were set out Mr. [defense factors that by I’ll those “And mitigating adopt in this case as one of I’ll also find that in this case. so attorney] departing out, factors, Durr, that that the in case didn’t set degree Mr. you mitigating than less to the current crime typical or loss attributed significantly harm was in fact an fact that the victim in this case . . . And also the an offense. such criminal conduct of the defendant that led to the or at least a participant aggressor, to his conviction.” case that led this the two in this case sets forth filed only mitigating journal entry court. cited factors specifically Our task on review is to determine whether the sentencing (1) of fact and reasons findings justifying departure sup- substantial constitute sub- ported by competent stantial and reasons for as a matter of law. compelling departure An court’s review is limited of fact and findings the sen- reasons enunciated justifying departure specifically Richardson, 3, court. State v. 2d Syl. tencing ¶ factors two will address the dissent This specif- mitigating only the оther factors court .and not cited ically motion. The two factors cited the sen- mitigating court are evidence. tencing supported by First, die court found that “the victim anwas aggressor partic- in the criminal conduct associated with the crime of convic- ipant added.) tion.” The evidence the fact that the (Emphasis supports victim in this case in a the defen- participated gang fight involving dant’s brother which caused the defendant to take action against Second, victim in the first the court found that “the place. of harm or loss attributed to the crime оf conviction was degree less than case, such an offense.” In this significantiy typical victim wrote letter to the that he be- sentencing judge stating lieved the defendant was treated too being harshly asking the defendant receive It is reasonable fhat leniency.
court could infer from this evidence that the of harm or degree loss attributed to the current crime of conviction was significantly less than for such an offense. typical
Once we determine that the of fact and reasons substantial com- justifying departure evidence, we must determine whether constitutе petent sub- they stantial and as a matter of law. compelling The Kansas chose not to define “substantial and com- Legislature Instead, to assist courts in pelling.” determining whether exist, substantial and K.S.A. 1994 21-4716 a nonexclusive list of *12 and mit- Supp. provides aggravating factors fhat the case, consider. In this igating sentencing may the two factors cited the court are factors by statutory mitigating to K.S.A. 1994 21-4716. Whether a pursuant Supp. sentencing court’s reasons constitute substantial and com- justifying departure reasons as a matter of law must be reviewed on a pelling case-by- case bаsis. Cases in which the court does not sentencing rely upon or factors to should be any statutoiy aggravating mitigating depart However, viewed with a stricter when the scrutiny. sentencing court relies factors to de- upon statutoiy aggravating mitigating these reasons should be deference a part, given great by reviewing court. case,
In this chose unfortunate and im- sentencing judge when he stated that he viewed the crime as an proper language however, found the court In the final assault. analysis, aggravated substantial which are reasons two supported depаrture justifying rea- and constitute substantial evidence compelling competent law. as a matter of sons departure of a extent an additional issue case This concerning presents words, when In other court’s sentencing sentencing departure. substantial court’s supported findings justifying departure rea- and constitute substantial evidence compelling competent law, which what is the extent a matter of may sons as departure court? be sentencing imposed limitations 21-4719 K.S.A. 1994 departure Supp. provides than double not total more shall A durational deрarture sentencing. term. maximum duration of imprisonment Also, im- 21-4719(b)(2). if a K.S.A. 1994 sentencing judge Supp. which is combined term as dispositional departure prison poses to set is durational required judge upward departure, each reasons for forth substantial depar- compelling separate 21-4719(c)(2). con- ture. K.S.A. 1994 majority opinion Supp. courts intended for that the cluded Kansas Legislature durational and reasons for both dispos- separate always provide this makes it clear that the statute itional departures. as a if a term is departure dispositional only applies with an durational which is also combined departure. upward de- a downward durational limitation for There is no statutory limitation for nonprison dispositional only statutory parture. die concerns the judge. granted by length probation departure 21-4611(c). 21-4719(d); K.S.A. 1994 K.S.A. 1994 Supp. case, this court’s combined In dispositional Also, the sen- did not violate limits. durational statutory departure for the court was not separate tencing required provide in this instance. and durational departures dispositional conclusion, In I believe findings justifying (1) departure as substantial and constitute departure law. extent of the
a matter of sentence should limits. within statutory Accordingly, be upheld.