State v. Vanderveen, 74225

• Decision Date: 19 April 1996
• Docket Number: No. 74225,74225
• Citation: 259 Kan. 836,915 P.2d 57
• Parties: STATE of Kansas, Appellee, v. Kent D. VANDERVEEN, Appellant.
• Court: Kansas Supreme Court

Page 57

915 P.2d 57

259 Kan. 836

STATE of Kansas, Appellee, v. Kent D. VANDERVEEN, Appellant.

No. 74225.

Supreme Court of Kansas.

April 19, 1996.

Syllabus by the Court

1. K.S.A. 22-3422 and K.S.A. 22-3424(e) provide the defendant with statutory rights known as allocution.

2. K.S.A. 22-3422 requires that before imposing judgment the court shall ask the defendant whether he or she has "any legal cause to show why judgment should not be rendered."

3. K.S.A. 22-3424(e)(4) requires that before imposing sentence the court shall "address the defendant personally and ask the defendant if the defendant wishes to make a statement on the defendant's own behalf and to present any evidence in mitigation of punishment."

4. Each judge is allowed to develop his or her personal technique for imposing sentence. The judge should not add his or her personal condemnation of the offender or underemphasize the seriousness of the offense. The sentence must be pronounced in a careful, understandable manner.

5. Prior to imposing sentence the judge may explain to the defendant the seriousness of the offense and the burden the defendant must overcome to mitigate punishment.

Appeal from Shawnee District Court; Fred S. Jackson, Judge. Opinion filed April 19, 1996.

John J. Ambrosio, of John J. Ambrosio, Chartered, Topeka, argued the cause, and Kathleen A. Downey, of the same firm, was with him on the brief, for appellant.

Joel W. Meinecke, First Assistant District Attorney, argued the cause, and Joan M. Hamilton, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellee.

LOCKETT, Justice:

Defendant was convicted of two counts of first-degree murder in the shooting deaths of his parents. On appeal he claims that he was denied his statutory right of allocution and that the trial court abused its discretion in imposing consecutive life sentences.

Kent Vanderveen lived with his parents. In April 1993, the 18-year-old Vanderveen shot each of his parents three times while they were asleep in adjoining rooms in their home. Vanderveen had purchased the ammunition that morning. After the shootings, Vanderveen hid the gun under a tree in a nearby field and went to Lawrence. He later directed police to the gun's location.

Vanderveen told psychologists that he remembered having two fights with his father that evening. During the first fight his father punched him in the face. Vanderveen left the house and consumed approximately Vanderveen pleaded no contest to two counts of first-degree premeditated murder. The sentence for first-degree premeditated murder, a class A felony, is life imprisonment. The sole question at the sentencing proceeding was whether the sentences should run concurrently or consecutively. See K.S.A. 21-4501(a); K.S.A. 21-4608. If the sentences were concurrent, Vanderveen would be eligible for parole in 15 years; if consecutive, Vanderveen would be eligible for parole in 30 years. K.S.A. 22-3717(b)(3), (c).

four drinks at restaurants. When Vanderveen returned home, his father was waiting for him, and a second fight ensued. Vanderveen claimed he could not remember the killings.

K.S.A. 22-3422 and K.S.A. 22-3424(e) provide the defendant with statutory rights known as allocution. K.S.A. 22-3422 requires that before imposing judgment the court shall ask the defendant whether he or she has "any legal cause to show why judgment should not be rendered." K.S.A. 22-3424(e)(4) requires that before imposing sentence the court shall "address the defendant personally and ask the defendant if the defendant wishes to make a statement on the defendant's own behalf and to present any evidence in mitigation of punishment." The sequence of events at the sentencing hearing is crucial to the defendant's claim that he was denied allocution.

To explain the reason for commission of the offense the defense presented the testimony of two psychologists. They testified that several stressors led to the shootings, including (1) 2 years earlier Vanderveen's child was born and adopted, and Vanderveen was also adopted; (2) a friend committed suicide a month earlier, and Vanderveen's father controlled whether Vanderveen would drive his parents' car to the funeral or stay overnight; and (3) Vanderveen fought with his father the night of the shootings. The psychologists stated that Vanderveen appeared to have been in a disassociative state at the time of the shootings. They also testified that it would not have been predicted Vanderveen would kill his parents and that he was unlikely to kill again. A report prepared by the Topeka Correctional Facility (TCF) indicated that Vanderveen was suicidal. Although the TCF report could be interpreted differently, defense counsel and the psychologists suggested that TCF was recommending that the sentences be served concurrently due to the suicide risk. The psychologists agreed that the sentences should run concurrently. The State urged that the sentences be consecutive.

After presenting evidence in mitigation, defense counsel John Ambrosio addressed the judge on behalf of the defendant:

"It is my view based on the evidence, it is my argument based on the evidence, based on what the psychologists say, based on the uncontroverted SRDC report, based on the Larned report, that these be run together. He's not gonna be a young man when he gets out, he's gonna be a changed man and he's gonna live with what he did for the rest of his life. That is also punishment, maybe not enough, but it is punishment."

The court then stated:

"The defendant stands before the Court having pled guilty to--or rather nolo contendere to two counts of murder in the first degree. It seems to me having reviewed all of the reports from Larned Reception and Diagnostic Center, Court Services, that the mental health professionals are somewhat puzzled about why this horrible tragedy occurred."

At that point, Ambrosio asked to approach the bench. At oral argument, Ambrosio stated that at this bench conference he had informed the judge that his client would exercise his statutory rights of allocution. The judge acknowledged defense counsel's comment and continued:

"It seems to me to impose concurrent sentences for two counts of first degree murder is to diminish the value of the lives of one or both of the victims. But perhaps more importantly, I am not persuaded that these types--this type of behavior might not occur again. All of us in our lives are subjected from time to time to stresses and conflicts, but we don't react in this fashion. It seems to me that past behavior is a fairly good predictor of future behavior "Having reviewed the criteria set forth in K.S.A. 21-4606 it does appear to me that these crimes were premeditated and he did go out and purchase fresh ammunition when old ammunition was available. It's true that there was an altercation with his father the night before these crimes occurred, but the murders were not a spontaneous reaction to that. The victims were in effect executed, apparently that [sic ] their sleep, and I don't think it can be fairly said that the victims in any way provoked what happened. For those reasons I feel it's my duty to impose consecutive sentences in this case. Albeit a melancholy duty, but I feel it is my duty.

it certainly is important to consider. I'm not persuaded that Mr. Vanderveen does not impose a threat to society. I think the fairer statement, as far as Dr. Albott's testimony is concerned, that in his present state he may very well constitute a threat to society, but given the individual he would not. Perhaps that's true. Unfortunately, I doubt that individual psychotherapy is going to be available in our present correctional system.

"Mr. Vanderveen, will you come forward, please."

The defense counsel then asked to make a record, and the following exchange occurred.

"[Mr. Ambrosio:] For the benefit of the record I believe that the Court has already determined the sentence before giving the defendant allocution. I think--I don't think, the law says you make findings and then give allocution. I think he has a right to allocution and then you make findings, therefore at this point and time I'm gonna move for the Court not to sentence and I'm gonna move that this be transferred to another division for sentencing because I think you've made your mind up. And I apologize for having to say this, Judge, but I think you've made your mind up before my client has had a right to address the Court and it is my understanding, was it not, that you were gonna say something to the Court; is that correct?

"THE DEFENDANT: That is correct.

"THE COURT: I intend to give him a right of allocution and I did not mean to indicate that I had made my mind up before hearing what Mr. Vanderveen had to say. But--

"MR. AMBROSIO: I thought the need to make my record, Your Honor.

"THE COURT: I understand.

"Mr. Vanderveen, is there anything that you want to say to the Court or any further evidence that you want the Court to consider by way of mitigation?

"THE DEFENDANT: I stayed up last night trying to figure out what to say. I knew I was gonna say something, but I don't really know what to say. I'd like to say that I am truly sorry for what has happened. I wish I could explain in some how, give some sort of explanation why this happened. But I mean I don't even understand myself really because doctors--I have told the doctors stuff, I don't remember everything that's happened. I don't really understand myself why this happened, so I can't really expect anybody else to understand either. I don't think this reflects the type of person I am. Like I say, I can't explain why this happened, I am truly sorry and whatever happens today, whether I'm in prison or whether I'm not, I still have to live with what I did. And to me as a person that's greater than anything else, is me having to live with this.

"MR. AMBROSIO: I renew my objection for the record, if you...