Review of the judgment of the Court of Appeals in an unpublished opinion filed January 26, 2007. Appeal from Sedgwick district court, BENJAMIN L. BURGESS, judge. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed.
1. An appellate court's review of dispositional departure sentences is limited to whether the sentencing court's findings of fact and reasons justifying a departure (1) are supported by the evidence in the record and (2) constitute substantial and compelling reasons for departure. K.S.A. 21-4716(d).
2. Appellate court analysis of whether a sentencing court's reasons for departure are substantial and compelling consists of two parts: First, are the reasons given valid departure factors; second, are the reasons, as a whole, substantial and compelling reasons for departure in a given case?
3. Whether the factors relied upon by the sentencing court constitute substantial and compelling reasons for departure is a question of law.
4. It is an improper application of the statutory counterpart rule articulated in State v. Favela, 259 Kan. 215, 911 P.2d 792 (1996), and State v. Martin, 279 Kan. 623, 112 P.3d 192 (2005), to use a statutorily listed aggravator to bar use of a related but statutorily unlisted aggravator.
5. Under the facts of this case, a defendant mother violated the special fiduciary relationship and unique position of trust between herself and her co-defendant 16-year-old son when she handed him a loaded gun, she urged him to shoot at an occupied house as she drove by, and he complied.
6. Under the facts of this case, the violation of a mother's special fiduciary relationship and unique position of trust with her son is a valid departure factor.
7. Under the facts of this case, the violation of a defendant mother's special fiduciary relationship and unique position of trust with her co-defendant son is a substantial and compelling reason to depart from the presumptive sentence.
8. A sentencing court's use of statutory factors for departure, i.e., those listed in K.S.A. 2005 Supp. 21-4716, should not be reviewed with great deference, and a sentencing court's use of non-statutory factors for departure should not be reviewed with stricter scrutiny. Whether departure factors are substantial and compelling is a question of law and should be reviewed de novo.
The opinion of the court was delivered by: Nuss, J.
In this case we must decide whether a district court's reasons for its upward dispositional departure from a presumptive sentence of probation were "substantial and compelling" as required by K.S.A. 2005 Supp. 21-4716(a). The Court of Appeals held that the reasons, which were not listed as aggravating factors in that statute, were not valid departure factors. It vacated the prison sentences and remanded to the district court for resentencing Martin. State v. Martin, No. 95,819, an unpublished opinion filed January 26, 2007. We granted the State's petition for review; our jurisdiction is under K.S.A. 20-3018(b).
The sole issue on appeal is whether the district court's reasons, despite not being listed in K.S.A. 2005 Supp. 21-4716, are nevertheless substantial and compelling as required by that statute. We hold that they are. Consequently, we affirm the district court and reverse the Court of Appeals.
The essential facts are not in dispute. On July 10, 2005, Tina M. Martin had an argument with an acquaintance. Later that night, she drove her 16-year-old son to the acquaintance's house. While driving by, she turned off her car headlights, gave her son a handgun, and ordered him to "do it, do it!" Martin's son then fired four shots at the house. Four people were in the house at the time: two adults, a teenager, and an infant. No one was injured.
Martin was arrested and charged with 2 counts. Count 1 alleged that she committed the offense of criminal discharge of a firearm at an occupied dwelling, i.e., she "did . . . unlawfully, maliciously, intentionally and without authority discharge a firearm . . . at a dwelling . . . occupied at the time by a human being" in violation of K.S.A. 2005 Supp. 21-4219(b).
Count 2 alleged that Martin committed the offense of contributing to a child's misconduct, i.e., she "did . . . unlawfully, intentionally cause or encourage a child . . . to commit an act which if committed by an adult would be a felony, to wit: Criminal Discharge at Occupied Dwelling," in violation of K.S.A. 2005 Supp. 21-3612(a)(5). Both charged offenses are severity level 7 person felonies.
After Martin pled guilty, the district court found a factual basis for her pleas and accepted them.
Based upon the presentence investigation report showing that Martin had a history of several offenses and a criminal history score of E, presumptive probation was indicated for both charges. However, because of the application of the "special rule" due to the use of a firearm by Martin's son, the co-defendant, a presumption of imprisonment arose for Count 1.
Martin moved for a downward dispositional departure from the prison sanction. The court sustained that motion, stating: "The fact that a co-defendant used a firearm to commit the crime this defendant aided and abetted was not considered in imposing the dispositional departure sentence."
The State then moved for an upward dispositional departure from presumptive probation. The court sustained the State's motion, stating two reasons for its departure:
1. "Defendant occupies a special fiduciary relationship with her 16-year-old son, the shooter in a drive-by shooting whom she encouraged to 'do it, do it!'; and, thus, violated the special fiduciary relationship and the unique position of trust she occupies as a mother."
2. "Further, encouraging a drive-by shooting demonstrates a callous, but yet a cowardly ...