Appeal from Brown District Court; John L. Weingart, Judge.Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.Kevin M. Hill, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Brown District Court; John L. Weingart, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Kevin M. Hill, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and STANDRIDGE, JJ.
Wyatt G. Brown entered a plea of no contest to one count of aggravated criminal sodomy, an off-grid sentence. The charges arose out of Brown's contact with a 10–year–old child. The district court granted a departure and imposed a 360–month prison sentence. Brown appealed.
Prior to sentencing, Brown filed a motion for a downward durational departure, arguing the district court should depart from the off-grid sentence to the grid sentence and then further downward from the presumptive grid sentence. The granting of the departure from the off-grid sentence to the grid sentence would result in Brown being sentenced as a severity level 1 offense with a criminal history score of B. The sentence range for this grid box is 554–618 months.
At the sentencing hearing, Brown again argued for a 293–month sentence, which is 50% of the grid sentence and the lowest allowable sentence. The State argued for a 618–month sentence. The district court granted Brown's motion for departure and articulated the following as its finding of substantial and compelling reasons to depart: “[I]t's part of the plea agreement, and 2, that the victim is not called upon to have to testify in this matter.” The court sentenced Brown to 360 months' imprisonment after “considering the factors as set forth in the departure.”
Brown now appeals his sentence. Additional facts are included as necessary below.
Brown first argues the district court did not comply with the statutory departure procedure when it imposed his sentence.
Whether a sentence is illegal is a question of law over which appellate courts exercise unlimited review. State v. McKnight, 292 Kan. 776, 779, 257 P.3d 339 (2011). K.S.A. 22–3504(1) allows appellate courts to correct an illegal sentence at any time.
Convictions for aggravated criminal sodomy trigger a life sentence statutorily mandated by Jessica's Law, codified under K.S.A.2013 Supp. 21–6627(a)(l)(D). Further, the sentencing court “shall” sentence such a defendant who is 18 years of age or older to a mandatory minimum term of imprisonment of not less than 25 years. K.S.A.2013 Supp. 21–6627(a)(1)(D). However, K.S.A.2013 Supp. 21–6627(d)(1) allows for the sentencing judge to depart from the mandatory minimum sentence to the guidelines grid box if the judge finds substantial and compelling reasons based on a review of mitigating circumstances to do so. If the sentencing judge departs, “the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.” K.S.A.2013 Supp. 21–6627(d)(l).
Once the sentence becomes a guidelines sentence, the district court is free to depart further from the sentencing grid. K.S.A.2013 Supp. 21–6815. However, K.S.A.2013 Supp. 21–6815(a) again requires that “the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.”
Therefore, when a sentencing judge makes a double departure, first from the mandatory off-grid sentence to the presumptive guidelines sentence, and then a further departure from the grid sentence, the sentencing judge must justify both steps. State v. Gilliland, 294 Kan. 519, 551, 276 P.3d 165 (2012), cert. denied 133 S.Ct. 1274 (2013). Requirements of neither departure to the sentencing grid from the mandatory minimum nor departure from the presumptive guidelines sentence can be ignored, and all departure procedures must be followed. State v. Jackson, 297 Kan. 110, 113, 298 P.3d 344 (2013) (citing State v. Jolly, 291 Kan. 842, 847, 249 P.3d 421  ). The departing court's analytical path to departure must be clear. See State v. Jones, 293 Kan. 757, 760, 268 P.3d 491 (2012). If the court ignores the requirements of the first step into the guidelines or the second step away from the presumptive guidelines, the result is an illegal sentence. 293 Kan. at 760.
At Brown's sentencing, the district court did not follow the proper departure procedure on the record. At the hearing, defense counsel and the court discussed Brown's motion for a departure from the Jessica's Law off-grid life sentence to the presumptive grid sentence, and then for a further durational departure from the grid sentence. The State informed the court that Brown had a criminal history score of B, and if the court departed to the grid, the crime would be a category 1 with a mid-range prison sentence of 586 months. However, the court did not, on the record, first depart from the off-grid to the presumptive grid and then make a second downward departure from the grid. Instead, it simply sentenced Brown to a 360–month sentence. The court also did not articulate whether the factors it listed as the substantial and compelling reasons for the departure from the off-grid sentence to the presumptive grid sentence were also substantial and compelling reasons for the downward departure from the grid sentence.
Instead, the district court proceeded to sentence Brown to 360 months. The court stated: “The Court, considering the factors as set forth in the departure, finds that the motion for departure should be granted, and finds substantial and compelling reason exists to do so. Specifically, ... it's part of the plea agreement, and 2, that the victim is not called upon to have to testify in this matter. Because of that, the Court will grant the durational departure.” On the record, the court simply departed from the off grid sentence to 360 months without explaining how it got there.
However, our Supreme Court has expressly required that the sentencing court show its work. See State v. Spencer, 291 Kan. 796, 826–27, 248 P.3d (2011) (A sentencing court departing from an off grid sentence should first go to the applicable grid box). Though it is possible to infer the district court did follow the appropriate process when deciding to grant Howard's departure, on the record at sentencing the court appears to skip straight from life imprisonment to 360 months. To get from the mandatory life sentence to 360 months, the court should have first departed from the Jessica's Law off-grid lifetime sentence to the presumptive guidelines, stating on the record the substantial and compelling reasons for the departure and only then further departed from the presumptive grid to 360 months, again stating on the record the substantial and compelling reasons for doing so. Therefore, the court did not follow the departure process as required by K.S.A.2013 Supp. 21–6627(d)(1) and K.S.A.2013 Supp. 21–6815(a) and its analytical path to departure is unclear. See Jones, 293 Kan. at 760. When the court skips either the requirements of the first step into the guidelines or the second step away from the presumptive guidelines on the record, the result is an illegal sentence. 293 Kan. at 760. Therefore, Brown's sentence must be vacated and the case remanded for resentencing in accordance with the proper departure procedures.
If a Jessica's Law sentence is vacated and a remand ordered for resentencing, the district court may reevaluate the factors bearing on sentencing, including adding to them, and regrant or deny a departure from Jessica's Law and a dispositional departure from the default guidelines sentence to probation, as well as a durational departure. See Spencer, 291 Kan. at 819.
Brown also argues the district court abused its discretion in only departing from life to 360 months instead of to the 293–month sentence he requested. We do not reach this issue because Brown's sentence has been vacated and, because this is part of sentencing, the issue before us is moot. On remand, Brown will have the opportunity to renew his motion. See Jones, 293 Kan. at 762.
Brown finally argues that the district court violated his rights under the Sixth and Fourteenth Amendments of the United States Constitution when it sentenced him. We do not reach this issue because Brown's sentence has been vacated and, because this is part of sentencing, the issue before us is moot.
Reversed and remanded with directions for resentencing in compliance with K.S.A.2013 Supp. 21–6627(d)(1) and K.S.A.2013 Supp. 21–6815(a).