Appeal from Barton District Court; HANNELORE KITTS, judge.
1. An appellate court reviews a departure sentence to determine whether the sentencing court's findings of fact and reasons justifying a departure (1) are supported by substantial evidence in the record and (2) constitute substantial and compelling reasons for departure. Whether a factor constitutes a substantial and compelling reason for departure is a question of law over which an appellate court's review is unlimited.
2. To be substantial the reason for departure must be real, not imagined, and of substance, not ephemeral. To be compelling the reason must be one which forces the court, by the facts of the case, to abandon the status quo and to venture beyond the sentence that it would ordinarily impose.
3. K.S.A. 2006 Supp. 21-4716(c) contains a nonexclusive list of substantial and compelling departure factors. Extra-statutory departure factors are subject to stricter scrutiny than those enumerated in the statute.
4. The sentencing court must state on the record the substantial and compelling reasons for the departure, and the court's comments govern as to the reasons for departure.
5. Although nonamenability to probation is not explicitly listed in K.S.A. 2006 Supp. 21-4716(c) as a substantial and compelling reason to depart, our courts have repeatedly recognized that it is.
6. 8 U.S.C. § 1325 (2000) declares an alien's unsanctioned entry into the United States to be a crime. While Congress has criminalized illegal entry into this country, it has not made the continued presence of an illegal alien in the United States a crime unless the illegal alien has previously been deported and has again entered this country illegally. 8 U.S.C. § 1326 (2000) makes it a felony for an alien who has been deported to thereafter re-enter the United States or at anytime thereafter be found in the United States.
7. Those persons who enter this country illegally are subject to deportation. 8 U.S.C. § 1227 (2000). Deportation may be based upon any number of factors, including the alien's initial entry into this country contrary to law or acts while in this country, such as the commission of certain crimes. However, while an illegal alien is subject to deportation, that person's ongoing presence in the United States in and of itself is not a crime unless that person had been previously deported and regained illegal entry into this country.
8. If a criminal defendant has not previously been deported, then the mere fact of the defendant's illegal alien status does not in itself render the defendant unamenable to probation.
9. Fulfillment of statutorily mandated probation terms is inconsistent with a defendant continuing to reside in this country as an illegal alien throughout the term of probation if the defendant had previously been deported and has since reentered this country illegally.
10. There can be no more substantial and compelling reason for a court's actions than the preservation of the rule of law. Thus, if a defendant's continued presence in the United States is in violation of 8 U.S.C. § 1326 (previously deported), that fact alone may constitute a substantial and compelling reason to deny presumptive probation.
11. The district court does not engage in enforcing our national immigration laws by simply recognizing a defendant's immigration status for the purpose of deciding whether the defendant is amenable to probation.
12. In applying the Equal Protection Clause to most forms of state action, courts seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.
13. If a defendant is present in the United States in violation of 8 U.S.C. § 1326 (previously deported), the district court may consider this fact in determining whether the defendant could successfully complete a plan of probation.
14. K.S.A. 2006 Supp. 21-4718(a)(3) requires that the sentencing court's notice of its intent to depart must be reasonable; i.e., notice must be provided at such a time and with such specificity that the defendant and the State have a fair opportunity to marshal and present their arguments for or against the proposed departure before sentence is pronounced.
The opinion of the court was delivered by: McANANY, J.
Affirmed in part, sentence vacated, and remanded with directions.
Before HILL, P.J., McANANY, J., and BRAZIL, S.J.
Nicholas L. Martinez appeals the district court's imposition of an upward dispositional departure sentence following his guilty plea to possession of cocaine and endangering a child. He raises two main issues: (1) whether the fact that he is an illegal alien justifies the denial of presumptive probation and (2) whether the district judge gave him fair notice of her intention to impose a departure sentence. We conclude that under the present statutory scheme for probationers, the fact that Martinez is an illegal alien may, under certain limited circumstances, constitute a substantial and compelling reason for the district court to depart. Nevertheless, the district judge failed to determine whether those limited circumstances existed and also failed to provide adequate warning of her intent to depart. Therefore, we must vacate Martinez' sentence and remand the case for resentencing.
Martinez also raises an issue with regard to the assessment of the Board of Indigents' Defense Services (BIDS) attorney fees. We conclude that we must set aside the order for attorney fees and remand for reconsideration of the assessment consistent with State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), and K.S.A. 2006 Supp. 22-4513.
The facts are not in dispute. Detective Terry L. Millard arranged for a controlled buy of illegal drugs from Martinez. The first transaction was concluded with the transfer of powered cocaine from Martinez' young son. The second transaction was consummated by Martinez delivering the drugs. Martinez was arrested and, pursuant to a search warrant, his house was searched. Police found additional cocaine, along with two stolen social security cards. They also found a United States Immigration and Naturalization Service Resident ...