Law Review and Bar Journal References:

"The Debate Over Regulation of Racist Speech: R.A.V. v. City of St. Paul," Shannon L. Taylor, 41 K.L.R. Criminal Procedure Edition 137, 138, 147 (1993).

"Criminal Procedure Review: Survey of Recent Cases," 44 K.L.R. 895 (1996).

"Delacruz: Following the Nichols Court Through the Looking Glass," Eric Lawrence, 44 K.L.R. 1045 (1996).

"The Constitutionality of Kansas Laws Targeting Sex Offenders," Stephen R. McAllister, 36 W.L.J. 419 (1997).

Survey of Recent Cases, 46 K.L.R. 919 (1998).

"The State's Response to Sexual Offenders," Carla Stovall, 7 Kan. J.L. & Pub. Pol'y, No. 2, 29, 39 (1998).

"The Kansas Sentencing Guidelines Act," Robert J. Lewis, Jr., 38 W.L.J. 327 (1999).

Criminal Procedure Edition, 47 K.L.R. 937 (1999).

"Apprendi v. New Jersey: Protecting the Constitutional Rights of Criminals in Sentencing," Stephanie B. Stewart, 49 K.L.R. 1193 (2001).

"Criminal Procedure Survey of Recent Cases," 50 K.L.R. 901 (2002).

"2002 Legislative Wrap Up," Paul T. Davis, 71 J.K.B.A. No. 7, 15 (2002).

"Surviving Apprendi: A Procedural Ideal Meets the Real World of Determinate Sentencing," Teresa L. Sittenauer, 72 J.K.B.A. No. 1, 44 (2003).

"Durational and Dispositional Departures Under the Kansas Sentencing Guidelines Act: The Kansas Supreme Court's Uneasy Passage Through Apprendi-land [State v. Carr, 53 P.3d 843 (Kan. 2002)]," Steven J. Crossland, 42 W.L.J. 687 (2003).

"Criminal Procedure Survey of Recent Cases," Matt Corbin, Editor, 51 K.L.R. 659, 745, 746, 747, 751 (2003).

"Bargaining for Freedom: Kansas Allows Criminal Defendants to Avoid Plea Agreement Sentences but Binds the State to Its Deals [State v. Boley, 113 P.3d 248 (Kan. 2005)]," Ali N. Ketchum, 45 W.L.J. 467 (2006).

"Criminal Procedure Survey of Recent Cases," 54 K.L.R. 895 (2006).

CASE ANNOTATIONS

1. Cited; whether court's refusal to convert defendants' sentences to guidelines sentences constitutes imposition of illegal sentence examined. State v. Gonzales, 255 Kan. 243, 250, 874 P.2d 612 (1994).

2. Whether consecutive sentences required when defendant assigned to community corrections commits new felony; whether action departure discussed. State v. Howard, 20 Kan. App. 2d 252, 253, 885 P.2d 1273 (1994).

3. Whether court was required to give notice of intent to depart on specific factor examined. State v. Gideon, 257 Kan. 591, 619, 894 P.2d 850 (1995).

4. Whether appellate court has jurisdiction to review denial of defendant's motion requesting departure examined. State v. Myers, 20 Kan. App. 2d 401, 888 P.2d 866 (1995).

5. Whether judge erred by failing to set forth substantial and compelling reasons for dispositional departure examined. State v. Rhoads, 20 Kan. App. 2d 790, 798, 892 P.2d 918 (1995).

6. Whether substantial and compelling reasons existed for departure from presumptive sentence examined. State v. Richardson, 20 Kan. App. 2d 932, 933, 901 P.2d 1 (1995).

7. Trial court's factual findings neither supported by evidence in record nor established by compelling reasons for upward sentence departure. State v. Cox, 258 Kan. 557, 574, 908 P.2d 603 (1995).

8. Trial court's factual findings not supported by evidence or established by compelling reasons justifying upward sentence departure. State v. Vincent, 258 Kan. 694, 695, 700, 908 P.2d 619 (1995).

9. Conversion of defendant's sentence to prison from nonimprisonment for offense committed on parole supported by substantial and compelling reasons. State v. Trimble, 21 Kan. App. 2d 32, 38, 894 P.2d 920 (1995).

10. Mitigating factors sufficient to justify downward departure for involuntary manslaughter conviction. State v. Heath, 21 Kan. App. 2d 410, 414, 901 P.2d 29 (1995).

11. Aggravated indecent liberties with a child is a severity level 3 person felony under 1993 KSGA (K.S.A. 21-4701 et seq.). State v. Shaw, 21 Kan. App. 2d 460, 462, 901 P.2d 49 (1995).

12. Trial court abused discretion by imposing a sentence including an upward durational departure without sufficient statutory justification. State v. Caldwell, 21 Kan. App. 2d 466, 475, 901 P.2d 35 (1995).

13. Defendant has no right to request court to modify sentence after KSGA (K.S.A. 21-4701 et seq.) effective date. State v. Bost, 21 Kan. App. 2d 560, 903 P.2d 160 (1995).

14. Attempted rape of preteen alone not significantly different from usual conduct associated with statutory rape to justify departure. State v. Zuck, 21 Kan. App. 2d 597, 600, 904 P.2d 1005 (1995).

15. Appellate review of reasons for departure are limited to court's findings stated at sentencing. State v. Keniston, 21 Kan. App. 2d 818, 820, 908 P.2d 656 (1995).

16. Sentencing court may rely on oral argument in finding defendant's judgment impaired; subsection (c) controls over K.S.A. 21-4721(d)(1). State v. Favela, 259 Kan. 215, 222, 911 P.2d 792 (1996).

17. Imprisonment allowed for new offense committed while inmate on conditional release; conditional release defined. State v. Arculeo, 22 Kan. App. 2d 91, 93, 911 P.2d 818 (1996).

18. Excessive brutality of defendant provided separate and independent reason for durational departure. State v. Hunter, 22 Kan. App. 2d 103, 105, 911 P.2d 1121 (1996).

19. Balancing test an appellate court must weigh in an appeal from a departure sentence discussed. State v. Valentine, 260 Kan. 431, 435, 921 P.2d 770 (1996).

20. Trial court did not err by imposing upward departure based in part on randomness of defendant's crime. State v. Alderson, 260 Kan. 445, 465, 922 P.2d 435 (1996).

21. Trial court erred by failing to state reasons for imposing departure sentence; double-double rule construed. State v. Peterson, 22 Kan. App. 2d 572, 576, 920 P.2d 463 (1996).

22. District court procedure when defendant challenges criminal history score discussed. State v. Lakey, 22 Kan. App. 2d 585, 587, 920 P.2d 470 (1996).

23. Court not required to state reasons for refusing to depart from imposing a presumptive sentence. State v. Windom, 23 Kan. App. 2d 429, 430, 431, 932 P.2d 1019 (1997).

24. Prior state conviction qualified as punishable by imprisonment for a term exceeding one year for federal statute purposes. U.S. v. Arnold, 113 F.3d 1146, 1147 (1997).

25. Firing gun during aggravated assault not per se excessive brutality; sentencing departure not supported by substantial and compelling reason. State v. Eisele, 262 Kan. 80, 83, 84, 90, 936 P.2d 742 (1997).

26. Offense manifested excessive brutality to victim constituting substantial and compelling reasons for departure. State v. Jackson, 262 Kan. 119, 134, 135, 936 P.2d 761 (1997).

27. Upward departure improper since aggravating factors relied on not substantial or compelling reasons or supported by record. State v. Salcido-Corral, 262 Kan. 392, 413, 414, 940 P.2d 11 (1997).

28. Departure sentence justified where defendant committed crimes while on supervised parole and lied on court affidavits. State v. Mitchell, 262 Kan. 434, 445, 939 P.2d 879 (1997).

29. Appellate standard of review when defendant claims nonstatutory mitigating circumstance is abuse of discretion. State v. Spain, 263 Kan. 708, 720, 953 P.2d 1004 (1998).

30. Imposition of imprisonment sentence where defendant's offense committed while in custody pending felony trial requires departure. State v. Marsh, 263 Kan. 773, 776, 952 P.2d 933 (1998).

31. Departure based on evidence which would if proven establish greater offense than in plea agreement reversed. State v. Soler, 25 Kan. App. 2d 1, 3, 5, 957 P.2d 516 (1998).

32. When departure sentence requirements are not met, court on remand may cite appropriate reasons for departure. State v. Peterson, 25 Kan. App. 2d 354, 357, 964 P.2d 695 (1998).

33. Atypical harm in crime against property is not an aggravating factor supporting departure sentence. State v. Sewell, 25 Kan. App. 2d 731, 733, 971 P.2d 1201 (1998).

34. Randomness of felony murder and aggravating battery substantial and compelling, aggravating fact justifying upward durational sentencing departure. State v. Alderson, 266 Kan. 603, 606, 608, 972 P.2d 1112 (1999).

35. Aggravated indecent liberties with a child is a "crime of extreme sexual violence." State v. Tiffany, 267 Kan. 495, 503, 986 P.2d 1064 (1999).

36. Pattern of conduct based exclusively upon inherent facts of multiple convictions is not a substantial and compelling reason for sentence departure. State v. French, 26 Kan. App. 2d 24, 27, 977 P.2d 281 (1999).

37. Trial court imposition of upward departure based on fiduciary relationship of defendant and victim upheld. State v. Ippert, 268 Kan. 254, 255, 260, 995 P.2d 858 (2000).

38. Trial court imposition of downward departure remanded for resentencing based on judge's partiality towards defendant. State v. Sampsel, 268 Kan. 264, 273, 997 P.2d 664 (2000).

39. Trial court did not abuse discretion in imposing downward departure in aggravated criminal sodomy case. State v. Minor, 268 Kan. 292, 299, 997 P.2d 648 (2000).

40. Upward dispositional departure justified. State v. Rodriguez, 269 Kan. 633, 8 P.3d 712 (2000).

41. For person committed for evaluation pursuant to K.S.A. 22-3430, sentencing provisions of K.S.A. 22-3431 apply and upward and downward departure provisions of K.S.A. 21-4716 do not apply. State v. Hildebrandt, 270 Kan. 1, 12 P.3d 1171 (2000).

42. Trial court is required to state on record reasons for departure sentence. State v. Whitesell, 270 Kan. 259, 13 P.3d 887 (2000).

43. Fact that defendant had absconded for two months is not sufficient to depart from presumptive sentence. State v. McKay, 28 Kan. App. 2d 185, 12 P.3d 924 (2000).

44. Unconstitutionality of state scheme of imposing upward departures did not support reconsideration of defendant's departure. U.S. v. Prince, 167 F. Supp. 2d 1296, 1300 (2001).

45. Hard 40 sentence for capital murder affirmed but upward durational sentences for other offenses vacated on basis of Apprendi v. New Jersey, 530 U.S. 466, and State v. Gould, 271 Kan. 395. State v. Verge, 272 Kan. 501, 34 P.3d 449 (2001).

46. Hard 40 sentence for capital murder affirmed but upward durational sentences for other offenses vacated on basis of Apprendi v. New Jersey, 530 U.S. 466, and State v. Gould, 271 Kan. 395. State v. Bradford, 272 Kan. 523, 34 P.3d 434 (2001).

47. Plea of guilty is not a waiver of due process rights; upward departional sentence is unconstitutional based on Apprendi, 530 U.S, 466, and Gould, 271 Kan. 394. State v. Cody, 272 Kan. 564, 35 P.3d 800 (2001).

48. Upward departional sentence is vacated based on Apprendi and Gould. State v. Kneil, 272 Kan. 567, 35 P.3d 797 (2001).

49. Claim of ineffective assistance of counsel denied. State v. Gardner, 272 Kan. 706, 36 P.3d 229 (2001).

50. Upward durational departure by court is unconstitutional and must be reversed, pursuant to State v. Gould. State v. Seibel, 29 Kan. App. 2d 489, 28 P.3d 445 (2001).

51. Remanded for court's failure to give reasonable notice to parties of intent to impose upward dispositional sentence; however, holding in State v. Gould, 271 Kan. 391, pertaining to upward durational departures does not apply to upward dispositional departures. State v. Carr, 29 Kan. App. 2d 501, 28 P.3d 436 (2001).

52. Upward departure sentence is unconstitutional even though defendant pleaded guilty to charge. State v. Boswell, 30 Kan. App. 2d 9, 37 P.3d 40 (2001).

53. No fiduciary relationship implied between (former) law enforcement officer and public to justify upward departure sentence upon convictions of nonresidential burglary. State v. Sprinkle, 31 Kan. App. 2d 45, 59 P.3d 1039 (2002).

54. Upward departure sentence based on evidence presented at preliminary hearing violates Apprendi and Gould. State v. Pruitt, 275 Kan. 52, 60 P.3d 931 (2003).

55. Plea agreement recommending upward durational departure sentence violates Apprendi and Gould. State v. Cullen, 275 Kan. 56, 60 P.3d 933 (2003).

56. Evidence of prior crimes admitted; upward durational departure sentence vacated because of holding in Gould. State v. Boorigie, 273 Kan. 18, 41 P.3d 764 (2002).

57. Rape conviction is vacated and remanded for resentencing within presumptive range (upward durational departure invalid because of Gould). State v. McClennon, 273 Kan. 652, 45 P.3d 848 (2002).

58. Apprendi applies to upward durational departures but not to upward dispositional departures, i.e. prison rather than probation. State v. Carr, 274 Kan. 442, 53 P.3d 843 (2002).

59. Upward durational departure sentence illegal under Apprendi although plea agreement stipulated had case gone to jury, jury would have found necessary specific aggravating factor. State v. Santos-Garza, 276 Kan. 27, 72 P.3d 560 (2003).

60. Upward departure sentence approved based on facts unrelated to crime, i.e. defendant was sentenced to imprisonment in another case. State v. Benoit, 31 Kan. App. 2d 591, 48 P.3d 695 (2003).

61. Trial court required to consider on record placement at Labette Correctional Conservation Camp. State v. Martin, 32 Kan. App. 2d 642, 87 P.3d 337 (2004).

62. Upward dispositional departure not warranted; where victim is an organization (youth baseball league) rather than a person (children) vulnerability is less applicable. State v. Neri, 32 Kan. App. 2d 1131, 95 P.3d 121 (2004).

63. Substantial downward durational and dispositional departure sentence vacated and remanded in multiple rape of 13 year old victim. State v. Haney, 34 Kan. App. 2d 232, 116 P.3d 747 (2005).

64. Substantial and downward durational and dispositional departure sentence vacated and remanded in multiple rape of 13 year old victim. State v. Ussery, 34 Kan. App. 2d 250, 116 P.3d 735 (2005).

65. Dispositional departure affirmed where factors considered in their totality were substantial and compelling. State v. Bolden, 35 Kan. App. 2d 576, 580, 132 P.3d 981 (2006).

66. Allows for sentence departure for defendant qualifying as a persistent sex offender. State v. Chesbro, 35 Kan. App. 2d 662, 681, 134 P.3d 1 (2006).

67. Mentioned in discussing sentencing options available to sentencing judge. Abasolo v. State, 284 Kan. 299, 306, 160 P.3d 471 (2007).

68. Statute unconstitutional; discussed in resentencing; defendant not entitled to credit against postrelease supervision period. State v. Gaudina, 284 Kan. 354, 355, 160 P.3d 854 (2007).

69. Illegal alien status does not automatically render a defendant unamenable to probation. State v. Martinez, 38 Kan. App. 2d 324, 330, 332, 335, 165 P.3d 1050 (2007).

70. Sentencing court must state the substantial and compelling reasons for departure sentence. State v. Martinez, 38 Kan. App. 2d 324, 329, 330, 165 P.3d 1050 (2007).

71. Nonstatutory aggravating factors may be used to impose increased sentence. State v. Green, 38 Kan. App. 2d 781, 790, 172 P.3d 1213 (2007).

72. Mentioned in opinion involving downward departure from sentencing guidelines in second-degree murder conviction. State v. Blackmon, 285 Kan. 719, 724, 732, 176 P.3d 160 (2008).

73. Mentioned in case involving upward departure sentence from presumptive probation sentence; reasons found "substantial and compelling." State v. Martin, 285 Kan. 735, 736, 739, 175 P.3d 832 (2008).

74. Cited in opinion holding that juveniles have a constitutional right to jury trials. In re L.M., 286 Kan. 460, 468, 186 P.3d 164 (2008).

75. Cited; court upholds consecutive sentences for longest prison term in sentencing presumptive grid block; sentence cannot be appealed. State v. Johnson, 286 Kan. 824, 849, 190 P.3d 207 (2008).

76. Cited; mandatory imprisonment for sex crime, mitigating circumstances insufficient for downward departure sentence. State v. Ortega-Cadelan, 287 Kan. 157, 165, 194 P.3d 1195 (2008).

77. Cited; fiduciary relationship abuse generally not grounds for upward departure sentence for security fraud conviction. State v. Bryant, 40 Kan. App. 2d 308, 314, 316, 317, 191 P.3d 350 (2008).

78. Cited; reference to "trial jury" in K.S.A. 21-4718 not intended to limit upward departures to only when not guilty plea entered. State v. Horn, 40 Kan. App. 2d 687, 693, 695, 696 to 698, 196 P.3d 379 (2008).

79. Cited; use of nonstatutory aggravating factors to impose an upward durational departure does not violate due process. State v. Snow, 40 Kan. App. 2d 747, 753, 755, 195 P.3d 282 (2008).

80. Cited; unconstitutionality prohibits upward departure sentences between June 26, 2000, and June 6, 2002. U.S. v. Wattree, 544 F. Supp. 2d 1262, 1270, 1272 (2008).

81. Mentioned; conviction under K.S.A. 21-4704 not a crime punishable by imprisonment for a term exceeding one year. U.S. v. Hill, 512 F.3d 1277, 1279, 1282 (2008).

82. Cited; defendant's prior Kansas conviction for criminal possession of a firearm constituted qualifying felony for federal felon in possession crime. U.S. v. Hill, 539 F.3d 1213, 1215, 1216, 1218 (2008).

83. Cited; aggravated indecent liberties with child, downward departure sentence not justified under facts. State v. Thomas, 40 Kan. App. 2d 1082, 1086, 1090, 1093, 1094, 198 P.3d 203 (2009).

84. Conviction under K.S.A. 21-3504; mitigating circumstances permit downward departure from mandatory minimum imprisonment term set out in K.S.A. 21-4643. State v. Gracey, 288 Kan. 252, 200 P.3d 1275 (2009).

85. Due process not violated for sentence based, in part, on information in arrest report affidavit. State v. Easterling, 289 Kan. 470, 213 P.3d 418 (2009).

86. Legislative intent to not include deprivation of essential activities or privileges as house arrest sanction under K.S.A. 21-4603b(d). State v. Schad, 41 Kan. App. 2d 805, 206 P.3d 22 (2009).

87. Downward durational departure sentence upheld. State v. Hines, 44 Kan. App. 2d 373, 236 P.3d 568 (2010).

88. Judge may rely on the same findings to support a departure from the mandatory minimum of Jessica's Law and departure from the default prison sentence under sentencing guidelines; judge abused discretion in departure; case remanded for resentencing. State v. Spencer, 291 Kan. 796, 248 P.3d 256 (2011).

89. Sentencing court did not err in imposing upward dispositional departure sentences because offenses were motivated in part by the race or skin color of the victims. State v. Stawski, 47 Kan. App. 2d 172, 271 P.3d 1282 (2012).

90. The district court may grant a departure sentence based on a small quantity of contraband when sentencing a defendant for illegally possessing contraband in prison. State v. Warren, 47 Kan. App. 2d 57, 270 P.3d 13 (2012).

91. District court must clearly state on the record all the reasons why it is imposing a departure sentence. State v. Hines, 296 Kan. 608, 294 P.3d 270 (2013).

92. Departure sentences held illegal due to the sentencing court's failure to comply with statutory requirements. State v. Jackson, 297 Kan. 110, 298 P.3d 344 (2013).

93. The sentencing judge relied on the wrong factors in ruling on the departure motion; sentence vacated. State v. Randolph, 297 Kan. 320, 301 P.3d 300 (2013).

94. The sentencing court may rely on nonstatutory factors to depart as long as the factors are consistent with the underlying principles. State v. Bird, 298 Kan. 393, 312 P.3d 1265 (2013).

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