State v. Favela
| Decision Date | 16 February 1996 |
| Docket Number | No. 71646,71646 |
| Citation | 911 P.2d 792,259 Kan. 215 |
| Parties | STATE of Kansas, Appellant, v. Jose S. FAVELA a/k/a Jose S. Rivas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
Questions of statutory interpretation are questions of law; thus, this court exercises a de novo standard of review.
K.S.A.1994 Supp. 21-4719 requires a sentencing judge to specifically define separate substantial and compelling reasons for both a durational departure and a dispositional departure granted in one sentence. However, K.S.A.1994 Supp. 21-4719(c)(2) only applies if a prison term is imposed as a dispositional departure which is also combined with an upward durational departure.
The purpose of K.S.A.1994 Supp. 21-4721(d)(1) and its requirement that the sentencing court's findings be supported by evidence in the record is to ensure that the court's findings are not clearly erroneous.
A reviewing court may be assured that a sentencing court's findings are not clearly erroneous or made up by the sentencing court if the findings are based upon oral statements of defense counsel which the sentencing court apparently regarded as reliable and trustworthy. Once the trial judge determines the credibility of the defense counsel's statements and decides to rely upon the statements, a reviewing court should not reweigh the credibility of the counsel's statements.
The sentencing court is allowed under K.S.A.1994 Supp. 21-4716(c) to rely on defense counsel's oral argument in finding that the defendant's judgment was impaired even though K.S.A.1994 Supp. 21-4721(d)(1) states that the sentencing court's finding must be supported by evidence, because 21-4716(c) is the more specific statute.
A claim that the departure factors relied upon by the sentencing court do not constitute The facts of this case are reviewed and applied to "substantial and compelling standard" for sentence departure.
substantial and compelling reasons for departure is a question of law.
Although the Kansas Sentencing Guidelines Act, K.S.A.1994 Supp. 21-4701 et seq., does not explicitly give appellate courts authority to review the extent of downward durational departures, K.S.A.1994 Supp. 21-4719(b)(1) is interpreted to give such authority by reference.
An appellate court's power to review the extent of a downward durational departure is premised on an inference from a statute. Since the legislature did not find it necessary to specifically state that an appellate court has the power to review the extent of departure, we do not believe that the legislature intended to allow the court the power to review the extent of sentences de novo. Rather, since the power to review the extent of departures is based on a mere inference, an appellate court should not give itself more power than the legislature intended, and the review should be limited to the weakest type of review--abuse of discretion.
Review of the judgment of the Court of Appeals in 21 Kan.App.2d 202, 898 P.2d 1165 (1995). Appeal from Reno District Court; William F. Lyle, Jr., Judge.
The judgment of the Court of Appeals vacating sentence and remanding for resentencing is reversed. The judgment of the district court is affirmed.
Timothy J. Chambers, County Attorney, argued the cause, and Keith E. Schroeder, Assistant County Attorney, and Carla J. Stovall, Attorney General, were on the brief, for appellant.
Philip M. Durr, Sterling, argued the cause and was on the brief, for appellee.
This appeal involves both a downward durational departure and a dispositional departure following a plea of nolo contendere to a charge of attempted second-degree murder. The State appealed the departure sentence. The Court of Appeals held that the reasons for departure were not substantial and compelling. It vacated the sentence and remanded for resentencing. We granted the defendant's petition for review.
The facts are not in dispute. The defendant was present at a fight which occurred in Hutchinson, Kansas. At this fight, the defendant's brother was stabbed by Willard LaGrange. The police were called, but before the policearrived at the stabbing site, the defendant left the scene to take his brother to the hospital. The defendant left his brother at the hospital and started driving back to the stabbing site. At this point, the defendant was spotted by law enforcement officers who attempted to stop the defendant using their lights and siren. The defendant ignored the police and drove to the stabbing scene, running red lights and stop signs along the way, but not engaging in a high speed chase.
At the stabbing scene, the defendant got out of the car holding a gun. The defendant announced that he intended to kill Willard LaGrange for stabbing his brother. A number of law enforcement officers were at the scene and trained their weapons on the defendant in an attempt to persuade the defendant to surrender.
During this standoff, the defendant never pointed the gun in the general direction of any person, but the defendant stated that he was going to shoot LaGrange. Further, the defendant indicated to the law enforcement officers that if they thought it necessary they could go ahead and shoot him. At one point, the defendant opened the slide on his weapon to show the officers that the weapon was loaded. After approximately 45 minutes, the standoff ended and the defendant surrendered his weapon.
The Reno County District Court adjudicated the defendant as an adult pursuant to K.S.A. 38-1636. The defendant pleaded no contest to an amended information charging him with attempted second-degree murder. The district court of Reno County, Judge Lyle, accepted the plea, found the defendant guilty, ordered a presentence investigation (PSI) report, and set the case for sentencing. Attempted second-degree murder with the defendant's criminal history of H carries a The defendant filed a timely motion for departure from the presumptive sentence, listing six mitigating circumstances which he contended justified departure. In the PSI report, the intended victim, Willard LaGrange, made the following statement, "I feel that the crime he has been charged with is wrong--he only threatened me."
presumptive prison sentence of 51 to 59 months with post-release supervision of 24 months. See K.S.A.1994 Supp. 21-4704(a).
The defendant had been in detention on this case for 6 months when sentencing occurred. The trial court found the six mitigating factors listed in the defendant's motion to depart to be substantial and compelling reasons for departure from the presumptive sentence. The trial court granted the defendant's motion to depart and sentenced him to 14 months in prison with post-release supervision of 24 months. The trial court then placed the defendant in community corrections for 36 months.
The legislative history of the Kansas Sentencing Guidelines Act indicates that Kansas, to an extent, looked to the determinant sentencing statutes of Washington, Oregon, and Minnesota, in formulating our sentencing scheme. Coates, Summary of the Recommendations of the Sentencing Commission, p. 6 (Report to Senate Committee on Judiciary, January 14, 1992). The case law from those states provides some insight into the issues in this appeal. However, most of the cases deal with upward departures and different statutory language and definitions, and in most instances they are distinguishable from our Kansas statutes and case law.
As a preliminary matter, the court must first determine an issue which the Court of Appeals raised sua sponte. This is a question of statutory interpretation; thus, this court exercises a de novo standard of review. Foulk v. Colonial Terrace, 20 Kan.App.2d 277, Syl. p 1, 887 P.2d 140 (1994).
In this case, the sentencing court departed both durationally and dispositionally. However, the sentencing court only recited one list of mitigating factors to justify both departures.
The Court of Appeals noted that the comments to the Minnesota sentencing guidelines consider a dispositional and durational departure to be two separate departures. Thus, the sentencing court is required to cite separate substantial and compelling reasons for each departure. Minnesota Sentencing Guidelines, Comment II.D.02, Minn.Stat. § 244 App. (1992). Relying on this authority, the Court of Appeals stated: "We are persuaded the Kansas Legislature intended for sentencing courts to provide separate reasons for both durational and dispositional departures." 21 Kan.App.2d at 213, 898 P.2d 1165.
The 1995 Desk Reference Manual for the Kansas Sentencing Guidelines, p. 31, also states that "[s]eparate reasons for each type of departure are required when a sentence is imposed which amounts to both a durational and dispositional departure." In making this assertion, the Desk Reference Manual relies on K.S.A.1994 Supp. 21-4719, which states:
(2) the presumptive term of imprisonment set in such departure shall not total more than double the maximum duration of the presumptive imprisonment term.
"(c) When a sentencing judge imposes a prison term as a dispositional departure: (1) The judge shall consider and apply the enacted purposes and principles of sentencing guidelines to impose a sentence which is proportionate to the severity of the crime of conviction; and
(2) the term of imprisonment shall not exceed the maximum duration of the presumptive imprisonment term listed within "(d) If the sentencing judge imposes a nonprison...
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