Review of the judgment of the Court of Appeals in an unpublished opinion filed February 9, 2007. Appeal from Wyandotte district court; J. DEXTER BURDETTE, judge. Judgment of the Court of Appeals reversing the district court is affirmed in part and reversed in part. Judgment of the district court is vacated and remanded with directions.
1. Upon a challenge to a departure sentence, an appellate court applies a mixed standard of review. Generally, a reviewing court first examines the record to see whether there is substantial competent evidence in support of the sentencing court's articulated reasons for granting a departure. The appellate court then determines, as a matter of law, whether the sentencing court's reasons for departure are substantial and compelling reasons justifying a deviation from the presumptive sentence defined by the legislature.
2. K.S.A. 2006 Supp. 21-4716(c) contains a nonexclusive list of substantial and compelling departure factors, such as the victim was an aggressor or a participant in the crime, the offender played a passive or minor role or participated under duress, the defendant suffered a pattern of physical abuse by the victim and the offense was a response, and the degree of harm attributed to the crime of conviction was significantly less than typical for that offense. Sentencing courts may consider other, non-statutory factors when imposing a departure sentence as long as there is evidence in the record to support such factors and the use of the factors would be consistent with the intent and purposes of the sentencing guidelines.
3. As long as one factor relied upon by the sentencing court is substantial and compelling, the departure sentence should be upheld. Each factor standing alone, however, need not be sufficient to justify the departure if the reasons taken collectively constitute a substantial and compelling basis for departure.
4. The mere fact that a sentencing judge weighs the evidence regarding an element of the crime of conviction differently than did the jury is not a substantial and compelling reason for departure.
5. An appellate court reviewing a sentencing court's reasons for departure will not conduct a broader search of the record to examine all facts available to the sentencing court to determine whether there were substantial and compelling reasons for departure other than those relied upon by the sentencing court.
6. When a sentencing court fails to state substantial and compelling reasons for a downward departure from a presumptive sentence on the record at the initial sentencing hearing and as a result the sentence is vacated on appeal, upon remand the sentencing court may cite appropriate reasons justifying the imposition of a downward departure sentence and may impose such a sentence subject to the usual review process.
The opinion of the court was delivered by: Luckert, J.
When sentencing Alexis E. Blackmon for unintentional second-degree murder, the sentencing court imposed a downward durational departure sentence equivalent to the presumptive sentence for involuntary manslaughter. The sentencing court justified the departure on a finding that the facts of the case do not "rise to the level of the manifest indifference to the value of human life required by the second-degree murder statute," K.S.A. 21-3402(b). The State appealed, presenting the issue of whether a sentencing judge's disagreement with the jury verdict is a substantial and compelling reason for departure. The Court of Appeals determined it was not and reversed and remanded for resentencing. State v. Blackmon, No. 95,696, unpublished decision filed February 9, 2007.
Blackmon seeks a reversal of the Court of Appeals' holding and alternatively suggests that if the articulated reason is not sufficient to support departure we should affirm the departure sentence because at least three statutory departure factors "can be gleaned from the departure motion and arguments at sentencing" and these reasons can be inferred from the sentencing court's reference to "one stab wound to the body of the victim in this case under circumstances described" by Blackmon.
We affirm the Court of Appeals' holding that the sentencing court's disagreement with the jury's verdict is not a substantial and compelling reason for departure; the purpose of the departure procedure is not to substitute the court's judgment for the jury's verdict. Additionally, because the sentencing court is required to state the reasons for departure on the record and the sentencing court referenced no other basis for departure, we decline Blackmon's invitation to glean other departure factors from the evidence or the sentencing court's vague reference to the circumstances described by Blackmon.
These conclusions lead to the question of whether Blackmon's departure motion is doomed or upon remand can the sentencing court elucidate its vague statement regarding the circumstances of the case and, if it deems appropriate, adopt one or more of the departure factors argued? We conclude the departure motion can still be considered upon remand. With regard to two other issues raised, we reject Blackmon's arguments that the State failed to meet its burden of establishing a sufficient record for appeal and determine that the issue of whether the length of departure was excessive is not before us.
The record before us presents limited facts about the underlying crime. The record on appeal consists of a transcript of the hearing on Blackmon's motion for new trial; a transcript of the sentencing proceeding; and the court file, which includes the written jury instructions, the motion for new trial, and the motion for departure sentence. Neither the State nor Blackmon provided a trial transcript in the record on appeal.
From this limited record, we can discern that Blackmon was charged with committing the intentional second-degree murder of Corey Smith on May 14, 2005. According to Blackmon's motion for a new trial, Blackmon did not deny involvement in the stabbing death of Smith. Apparently, she testified at her trial that she was being beaten by Smith immediately before she stabbed him. Blackmon went into the kitchen to get a knife to scare Smith, and Smith followed her, trapping Blackmon against a wall by the refrigerator. During the encounter, according to Blackmon's account, Smith ran into the knife held by Blackmon and later died from his wound. The motion for new trial also suggests that Blackmon did not know Smith had been stabbed until Blackmon saw blood on the blade of the knife, which she had dropped.
In addition to offering these facts in her motion for a new trial, Blackmon argued that even though the jury found her guilty of the lesser included offense of unintentional second-degree murder that verdict was not supported by the evidence because her actions did not show extreme indifference to human life as required by the elements of unintentional second-degree murder. She asserted that the jury must have been confused by the differing degrees of recklessness required for unintentional second-degree murder versus some of the other lesser included offenses on which the jury had been instructed, including voluntary manslaughter and reckless involuntary manslaughter. To further support her argument, she pointed to questions asked by the jury during deliberations. According to comments made by the prosecutor at the sentencing hearing, the jury had requested clarification regarding the difference between unintentional second-degree murder and involuntary manslaughter. Although we do not have a record of the instruction given in response to the question, the trial court apparently advised that unintentional second-degree murder required a higher degree of recklessness--that which rose to the level of showing extreme indifference to the value of human life.
The trial court denied Blackmon's motion for a new trial. The judge stated that while a verdict of unintentional second-degree murder was not the verdict "this Court would have reached if I had been the trier of fact," there was sufficient evidence to support the jury's verdict. Noting that it was required to view the verdict in the light most favorable to the State, the trial court found a reasonable jury could have reached a verdict of unintentional second-degree murder based on the evidence presented. The court suggested, however, that Blackmon repeat the same arguments at sentencing because such arguments would likely be more helpful there.
Blackmon subsequently filed a motion for a downward durational departure sentence. In her motion, she argued that the State failed to show evidence of anything but self-defense and pointed out that she has no prior felony record. Also, Blackmon asserted that she was soon expecting a baby fathered by Smith. She further reiterated her arguments about jury confusion relating to the degree of recklessness shown and again argued that involuntary manslaughter or even voluntary manslaughter more closely fit this case in that the crime involved a sudden quarrel or arose in the heat of passion.
Over the State's objection, the sentencing court granted Blackmon's motion, departing from a presumptive sentence of 131 months' imprisonment to a sentence of 38 months--the presumptive sentence for involuntary manslaughter. In so ruling, the court made limited findings, stating:
"[I]t's this Court's opinion that the level of recklessness required for a sentence under the second degree unintentional statute was not met in this particular case. We have . . . one stab wound to the body of the victim in this case under circumstances described by the only other witness to the assault that, in this Court's opinion, factually does not rise to the level of the manifest indifference to the value of human life required by the second-degree murder statute."
The sentencing court found "that's a substantial and compelling mitigating factor in this case" and sentenced Blackmon to the maximum she would have received ...