State v. Spencer, No. 101,077.

• Court: United States State Supreme Court of Kansas
• Writing for the Court: The opinion of the court was delivered by BEIER, J.:
• Citation: 291 Kan. 796,248 P.3d 256
• Parties: STATE of Kansas, Appellant,v.Harold Dean SPENCER, Appellee.
• Decision Date: 18 March 2011
• Docket Number: No. 101,077.

291 Kan. 796
248 P.3d 256

STATE of Kansas, Appellant,
v.
Harold Dean SPENCER, Appellee.

No. 101,077.

Supreme Court of Kansas.

March 18, 2011.

[248 P.3d 258 , 291 Kan. 796]

Syllabus by the Court

1. In Jessica's Law and non-Jessica's Law sentencing departure cases: (1) When the question is whether the record supported a sentencing judge's particular articulated reasons for departure, an appellate court's standard of review is substantial competent evidence; (2) when the question is whether a sentencing judge correctly concluded that particular mitigating factors constituted substantial and compelling reasons to depart in a particular case, including whether those mitigating factors outweighed any aggravating factors if such a balance is necessary, the appellate standard of review is abuse of discretion; (3) when the question is whether a particular mitigating or aggravating factor can ever, as a matter of law, be substantial and compelling in any case, the appellate standard of review is de novo; and (4) when the challenge focuses on the extent of a durational departure, the appellate standard of review is abuse of discretion, measuring whether the departure is consistent with the purposes of the guidelines and proportionate to the crime severity and the defendant's criminal history.

2. In a Jessica's Law case, the sentencing judge need not differentiate between the reasons that support a departure from the mandatory minimum term of imprisonment under K.S.A. 21–4643(d) and the reasons that support a dispositional departure from the sentencing guidelines to probation.

3. In a Jessica's Law case, the reasons for a departure from the mandatory minimum term of imprisonment must be stated on the record at sentencing. A sentencing judge, prior to or in lieu of any appeal, may not later add other reasons to support a granted departure to the record of the case.

4. On the facts of this case, the sentencing judge abused his discretion in departing

[248 P.3d 259]

from the mandatory minimum of Jessica's Law.

5. On the facts of this case, the sentencing[291 Kan. 797] judge abused his discretion by granting a dispositional departure to probation.

6. On remand for resentencing, the sentencing judge in a Jessica's Law case may re-evaluate and/or add to the reasons for departure from the mandatory minimum term of imprisonment under K.S.A. 21–4643(d) and for dispositional departure to probation and decide in his or her discretion to re-grant the departure or departures. He or she also may decide whether to grant a durational departure.

7. Aggravated indecent liberties in violation of K.S.A. 21–3504(a)(3)(A) perpetrated by a defendant 18 years or older upon a victim younger than 14 is an off-grid crime. If the sentencing judge departs from the mandatory minimum of Jessica's Law to a sentence pursuant to the sentencing guidelines act, the judge shall go to the grid box associated with the severity level assigned to the crime when it lacks the element of disparity between the defendant's and the victim's ages.

Natalie A. Chalmers, assistant district attorney, argued the cause, and Jamie L. Karasek, assistant district attorney, Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were on the brief for appellant.Carl Folsom, III, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

This is an appeal taken by the State from the departure sentence given defendant Harold Dean Spencer by District Court Judge Matthew J. Dowd. Spencer pleaded guilty to two counts of aggravated indecent liberties with a child, both off-grid felonies punishable under Jessica's Law. One of the victims was his 6–year–old great-granddaughter; the other was a granddaughter of similar age who was living with Spencer and his wife at the time the crimes came to light.

The potential issues before us are:

1. Whether the sentencing judge properly relied on the same findings to support both a departure from the mandatory hard 25 sentence under Jessica's Law, K.S.A. 21–4643(d), to a sentence [291 Kan. 798] under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq. , and a dispositional departure from a KSGA prison term under K.S.A. 21–4716(a) to probation.

2. Whether the reasons articulated by the sentencing judge for departure from the mandatory minimum of Jessica's Law were substantial and compelling.

3. Whether the reasons articulated by the sentencing judge for the dispositional departure were substantial and compelling.

4. Whether the sentencing judge abused his discretion in the extent of departure granted.

5. In the event the defendant's sentences must be vacated because either or both departures were inappropriate, whether a new sentencing judge is permitted on remand to re-evaluate his or her reasons and re-grant or deny either or both departures and to consider a durational departure.

6. Whether, on a State appeal of a departure sentence for aggravated indecent liberties, this court has authority to entertain a defense challenge to the offense severity level used by the sentencing judge, and, if so, the correct method and result for a departure from Jessica's Law to a sentence “pursuant to the sentencing guidelines act.”

Factual and Procedural Background

Spencer was charged with one count of aggravated indecent liberties in violation of K.S.A. 21–3504(a)(3)(A), perpetrated on a great-granddaughter, and one count of rape in violation of K.S.A. 21–3502(a)(2), perpetrated on a granddaughter. On arrest, Spencer confessed to fondling the girls but not to rape. In exchange for his guilty pleas to two counts of aggravated indecent liberties, the State agreed to stand silent at sentencing.

[248 P.3d 260]

Spencer moved for departure, arguing in his written motion that his waiver of preliminary hearing and jury trial had spared the victims emotional harm and that he had accepted responsibility and expressed remorse. He also argued that his lack of prior criminal activity and age of 76 justified departure. His counsel also wrote that Spencer had “been law-abiding and gainfully employed his entire life,” that he had “raised several children and grandchildren,[291 Kan. 799] ” that he was “the primary care-giver for his sick and ailing wife,” that he had “strong support from his family and others in the community,” and that the “victim's mother favors probation.”

At the sentencing hearing, several members of Spencer's family spoke of his vital role among their kin and his caretaking of his wife, as well as previous acts of kindness and generosity. It appears from the record that certain other members of the family may have disagreed, as there were references to the crimes tearing the family apart. A minister also spoke on Spencer's behalf. Judge Dowd also had access to victim impact statements, one written by the mother of the great-granddaughter, who opposed Spencer's imprisonment, and one composed by the granddaughter, who indicated that Spencer should go to jail. Judge Dowd also noted numerous letters written by “friends and family of the defendant indicating that he is a good citizen, a good person, and a suitable candidate for some sort of leniency.” When Judge Dowd asked Spencer if he had anything to say, Spencer said only, “I just wish I could undo it.”

After airing of a disagreement between the parties about the point on the sentencing guidelines to which a district judge departing from a hard 25 under Jessica's Law should go—with the State arguing for an offense severity level 1 and the defense arguing for an offense severity level 3—Judge Dowd ruled:

“Certainly, this is always a serious situation, a serious crime. I am very aware of the impact it's had on the defendant's family, on his friends, and on the community. There's a kind of a mixed input in regard to the harm that was done to these young ladies. It does not appear that the harm was terribly significant. The mom of the children herself says that they have dealt with this fairly well. And so I think the victim, the victim impact is not as serious as it would be in an ordinary case of this nature.”

At this point, counsel for the State corrected the judge, saying that there were different mothers of the two victims involved in the case. Judge Dowd acknowledged this fact. He then continued:

“In any event, I think what I've heard here today would seem to indicate that a departure is necessary, appropriate, and there are substantial and compelling reasons to depart. I think the age of the defendant, his prior record, and his support from his family and friends would lead the Court to believe that this might have been an aberration or a momentary lapse in an otherwise good life, so I am going to depart.

[291 Kan. 800] “I am going to adopt—since I'm going to also depart durationally, I think it's really not terribly significant how many years or months we give, because I am going to depart dispositionally. But I will adopt the State's theory and go from life imprisonment to a number of years—or pardon me, a number of months as indicated on the guideline grid for the severity level 1. So I'm going to impose a 155–month sentence to the Secretary of Corrections. The defendant's criminal history is “I” and that's the low range on the severity level number 1, 155 months.

“I'm also going to depart dispositionally. I think that it would not, it would not serve the end of justice to incarcerate the defendant. I think that a significant amount of time in prison would be tantamount to a life sentence for this man in light of his age, and age is listed as one of the reasons to depart. Usually we think of that as a young person not really aware of his responsibilities, but I think it also can be interpreted as age in the sense of an elder person.

“In any event, I'm going to impose the 155 months, 36 months of post-release supervision and 36 months supervised probation....

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[248 P.3d 261]

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