State v. Favela
| Decision Date | 23 June 1995 |
| Docket Number | No. 71646,71646 |
| Parties | STATE of Kansas, Appellant, v. Jose S. FAVELA a/k/a Jose S. Rivas, Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The interpretation of the Kansas Sentencing Guidelines Act is a question of law. An appellate court's scope of review on questions of law is unlimited, and the appellate court is not bound by the decision of the district court.
2. The language of K.S.A.1994 Supp. 21-4721(d) provides a two-prong analysis for appellate review of departure sentences. First, the appellate court must decide if the sentencing court's findings of fact are supported by evidence in the record. Second, the reviewing court must determine if the sentencing court's reasons for the departure are substantial and compelling.
3. The Kansas appellate courts should examine the sentencing court's reasons for departures in light of the purposes of the sentencing guidelines and the aggravating and mitigating factors listed in K.S.A.1994 Supp. 21-4716 and K.S.A.1994 Supp. 21-4717. Any departure from a presumptive sentence should be in accord with the sentencing purposes and principles that underlie these rules.
4. In reviewing a departure sentence, an appellate court should only examine the record to determine if the stated findings of fact used to justify departure are supported by the record.
5. The prosecuting attorney is the representative of the State in criminal prosecutions, and he or she controls the prosecution. The prosecuting attorney's discretion extends to the power to determine who shall be prosecuted and what crimes shall be charged.
6. The Kansas Legislature intended for sentencing courts to provide separate reasons for both durational and dispositional departures.
Keith E. Schroeder, Asst. County Atty., and Robert T. Stephan, Atty. Gen., for appellant.
Philip M. Durr, Sterling, for appellee.
Before RULON, P.J., LARSON, J., and TOM MALONE, District Judge, assigned.
The State appeals the sentencing court's decision to grant both a durational and dispositional sentence departure for the defendant's conviction of one count of attempted murder in the second degree, K.S.A.1994 Supp. 21-3301 and K.S.A.1994 Supp. 21-3402. We vacate the sentence and remand the cause with directions.
On September 27, 1993, Hutchinson police were dispatched to the site of a reported gang fight. During this gang fight, Willard LaGrange allegedly stabbed defendant's brother. The defendant and several others left the scene in a Chevrolet Monte Carlo. Eventually, police officers spotted the car and signaled the driver to stop the vehicle. Initially, the driver refused to stop. Ultimately, the driver stopped the car in front of the house where LaGrange lived.
Defendant left the car carrying a handgun and said he was going to go inside the house and kill LaGrange. Defendant refused police orders to drop the gun. Instead, defendant said he was going to kill LaGrange because LaGrange had stabbed his brother. During this confrontation, defendant pulled back the action of the gun to show police the gun was loaded. After prolonged negotiations with police, defendant surrendered the weapon.
Defendant was later charged with attempted murder in the first degree and aggravated assault of a law enforcement officer. Ultimately, defendant entered a plea of no contest to one count of attempted murder in the second degree, a severity level 3, person felony. Attempted second-degree murder with defendant's criminal history score of H carries a presumptive prison sentence of 51 to 59 months. See K.S.A.1994 Supp. 21-4704(a).
Prior to sentencing, defendant filed a timely motion asking the sentencing court to depart from the presumptive sentence. The court granted the defendant's motion and sentenced defendant to 14 months in prison with post-release supervision of 24 months. The court then placed the defendant in community corrections for 36 months.
The State perfected this appeal.
This case involves the interpretation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A.1994 Supp. 21-4701 et seq., and is consequently a question of law. As is often said, an appellate court's scope of review on questions of law is unlimited, and the appellate court is not bound by the decision of the district court. See State v. Heffelman, 256 Kan. 384, 386, 886 P.2d 823 (1994).
K.S.A.1994 Supp. 21-4721 reads in relevant part:
"(a) A departure sentence is subject to appeal by the defendant or the state....
....
"(d) In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the sentencing grid for a crime, sentence review shall be limited to whether the sentencing court's findings of fact and reasons justifying a departure:
(1) Are supported by the evidence in the record; and
(2) constitute substantial and compelling reasons for departure.
"(e) In any appeal, the appellate court may review a claim that:
(1) The sentence resulted from partiality, prejudice, oppression or corrupt motive;
....
The legislative history of the KSGA indicates that Kansas, in part, looked to the determinant sentencing statutes of Washington, Oregon, and Minnesota in formulating our sentencing guideline scheme. Coates, Summary of the Recommendations of the Sentencing Commission, p. 6 (Report to Senate Committee on Judiciary, January 14, 1992). Consequently, the case law from the above-noted sister states is helpful to our resolution of this appeal.
Here, the State contends this court should review the issues before us as a matter of law and argues that such a standard would insure that departure sentences are granted in only the most unusual factual situations. Additionally, the State contends de novo review by this court would protect both the State and defendants from disparate sentences imposed by different sentencing courts which have differing interpretations of what constitutes an atypical criminal offense.
The defendant, on the other hand, argues that the abuse of discretion standard of review should be adopted. Defendant argues the sentencing court is always in the best position to decide sentencing issues and, consequently, this court should defer to the sentencing court's decision if the facts are supported by the record. Accordingly, defendant contends a departure sentence should only be reviewed for an abuse of discretion by the sentencing court.
Under Washington statutes, a sentencing court may impose a sentence outside the presumptive range "if it finds ... that there are substantial and compelling reasons justifying an exceptional sentence." Wash.Rev.Code § 9.94A.120(2) (1994 Supp.). The stated purpose of the Washington act is "to make the criminal justice system accountable to the public by developing a system for the sentencing of felony offenders which structures, but does not eliminate, discretionary decisions affecting sentences...." Wash.Rev.Code § 9.94A.010 (1994 Supp.). Additionally, the Washington guidelines are designed to:
"(6) Make frugal use of the state's resources." Wash.Rev.Code § 9.94A.010 (1994 Supp.).
When reviewing an exceptional sentence, a Washington appellate court may reverse if it finds:
"(a) Either that the reasons supplied by the sentencing judge are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient." Wash.Rev.Code § 9.94A.210(4) (1994 Supp.).
Under the Washington statutory scheme, the appellate court determines: (1) whether the reasons supplied by the sentencing court are supported by evidence in the record; (2) whether the reasons given for the exceptional sentence justify a departure from the standard range; and (3) whether the exceptional sentence is clearly too lenient or too excessive. The standard of review on the first question is "clearly erroneous." The second question is examined "as a matter of law" and the third is subject to the "abuse of discretion" standard. See State v. Johnson, 124 Wash.2d 57, 65-66, 873 P.2d 514 (1994).
The Oregon statute dealing with review of sentences which depart from the presumptive sentence reads in relevant part:
"(b) Constitute substantial and compelling reasons for departure." Or.Rev.Stat. § 138.222(3) (1994 Supp.).
The Oregon statute is substantially the same as K.S.A.1994 Supp. 21-4721(d).
In State v. Wilson, 111 Or.App. 147, 149, 826 P.2d 1010 (1992), the Oregon Court of Appeals said that the appellate court should review the sentencing court's factual basis and reasons for departing, not the decision whether to depart. The Wi...
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State v. Favela
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State v. Sampsel, No. 79,143.
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State v. Martin, 95,819.
...or mitigating factors to depart, these reasons should be given great deference by a reviewing court.' [State v. Favela] 21 Kan.App.2d [202] at 215, 898 P.2d 1165 [(1995)]." (Emphasis Our opinions do not clearly demonstrate a considered review and ultimate express acceptance of this uncited ......