Appeal from Sedgwick District Court; ERIC R. YOST, judge.
SYLLABUS BY THE COURT 1. If a sentencing court imposes a departure sentence, the findings it makes at the time of sentencing govern as to the reasons why it imposed the sentence. 2. Whether a victim's request for leniency can ever be a substantial and compelling reason imposing a departure sentence in any case raises a question of law subject to unlimited review. 3. K.S.A. 21-4716(c) contains a nonexclusive list of substantial and compelling mitigating factors. 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. 4. K.S.A. 21-4703(n) defines mitigating factors as substantial and compelling reasons justifying an exceptional sentence whereby the sentencing court may impose a departure sentence outside of the standard sentencing range for an offense. Mitigating factors may result in dispositional or durational departures and shall be stated on the record by the court. 5. In order for a mitigating factor to be substantial, the reason must be real, not imagined, and of substance, not ephemeral. In order to be compelling, the mitigating factor 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. 6. If a victim's request for leniency is substantial (i.e., the reason for the request is real, not imagined, and of substance, not ephemeral) and compelling (i.e., the reason for the request is one which forces the sentencing court, based on the facts of the case, to abandon the status quo and to venture beyond the sentence that it would ordinarily impose), then the request for leniency can, by itself, justify a sentencing court's decision to impose a departure sentence. 7. An appellate court applies an abuse of discretion standard of review to determining whether a sentencing court erred in concluding that a mitigating factor constituted a substantial and compelling reason to depart in a particular case. 8. Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. 9. Mitigating factors which may in one case justify departure may not in all cases justify a departure. 10. When a sentencing court fails to state substantial and compelling reasons for a downward departure from a presumptive sentence on the record at an 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: Rosen, J.
Review of the judgment of the Court of Appeals in 44 Kan. App. 2d 373, 236 P.3d 568 (2010).
Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed, sentences vacated, and case remanded with directions.
The opinion of the court was delivered by ROSEN, J.:
Matthew M. Hines appeals the Court of Appeals' decision to reverse the sentencing court's imposition of a controlling, downward durational departure sentence of 24 months' imprisonment for his convictions of attempted second-degree intentional murder and aggravated battery in State v. Hines, 44 Kan. App. 2d 373, 236 P.3d 568 (2010). We conclude that based on the facts of this case, the reason cited by the sentencing court for imposing the departure sentence (the victim's request for leniency) does not constitute a substantial and compelling reason to depart from the presumptive sentences for each of Hines' convictions. Thus, we hold that the sentencing court abused its discretion in imposing the 24-month sentence. Accordingly, we affirm the Court of Appeals' decision, vacate the sentence imposed, and remand for resentencing.
According to the probable cause affidavit filed in this case, on May 29, 2008, Wichita police were dispatched to the residence Hines shared with his wife, Charmaine, and their four children. When police arrived, they discovered that Charmaine had suffered significant lacerations to the front of her neck and chest. As a result, Charmaine was transported to the hospital by ambulance.
At the hospital, Charmaine told law enforcement that she arrived home that afternoon and told Hines that she wanted a divorce. While their four children played outside, Charmaine and Hines argued in their bedroom. Hines eventually told Charmaine, "If I can't have you nobody will." He then placed his hands around Charmaine's neck and began choking her. When one of their children walked into the bedroom, Hines let go of Charmaine and told the child to go back outside. Once the child left, Hines resumed strangling Charmaine but stopped again when the child returned to the room. At that point, Charmaine escaped from the bedroom and ran out of the house to a neighbor's house across the street. While standing on the neighbor's front porch, Charmaine began yelling for the neighbor's help.
The neighbor eventually came out onto her porch and began speaking to Charmaine, but Hines, who followed Charmaine to the neighbor's home, started arguing with Charmaine. Hines eventually pulled a utility knife out of his pocket and held it up to Charmaine's neck. He then grabbed her hair and pulled her off the porch and onto the neighbor's yard, where Charmaine fell to the ground. According to the neighbor, Hines got behind Charmaine and elevated her head with one hand while holding the utility knife with the other. Hines then proceeded to cut Charmaine's neck with the knife from side to side. Hines looked up at the neighbor after she told him to stop, but he proceeded to slash Charmaine again across her neck and on her chest. At least two of Hines' children witnessed him cutting Charmaine. After the brutal attack, Hines ran to his vehicle and drove away. Police arrested Hines later that day.
The State initially charged Hines with attempted first-degree murder but later amended the information to add one count of aggravated kidnapping and two counts of domestic battery. Eventually, Hines and the State entered into a plea agreement where Hines agreed to plead guilty to the amended counts of attempted second-degree intentional murder and aggravated battery in exchange for the State's promise to dismiss the remaining counts. As to sentencing, the State would be allowed to argue for imposition of the aggravated prison sentence in the applicable grid box for each conviction as well as argue for consecutive sentences. Finally, the parties' agreement allowed Hines to argue at sentencing for a downward dispositional departure (which the State could oppose), but the agreement prohibited Hines from arguing for a downward durational departure or for concurrent sentences.
At the plea hearing, Hines pleaded guilty to each count. With regard to the factual basis for each count, Hines agreed that he had cut Charmaine twice across the neck with a utility knife with the intent of committing second-degree murder and that he had also intentionally caused Charmaine great bodily harm or disfigurement-supporting the count of aggravated battery. Accordingly, the sentencing court found that there was a factual basis supporting each of Hines' guilty pleas and, thus, found him guilty of attempted second-degree intentional murder and aggravated battery.
Prior to sentencing, a presentence investigation was conducted which determined that Hines' criminal history score was an H, resulting in an applicable sentencing range of 61-66-71 months' imprisonment for the primary offense of attempted second-degree murder, a severity level 3 felony. For aggravated battery, a severity level 4 felony, the applicable sentencing range was 38-41-43 months' imprisonment. See K.S.A. 21-4704(a).
Hines filed a motion requesting a dispositional departure sentence. In support of his motion, Hines listed the following mitigating factors: (1) his admission of guilt; (2) probation would promote his reformation given his age of 31; (3) probation would allow him to continue with the anger management and counseling that he was already undergoing; (4) he had no prior felony convictions; (5) his crimes involved a single individual, indicating that he does not pose a threat to society as a whole; (6) Charmaine did not want Hines to be sent to prison and wished for the district court to show leniency; (7) Hines was under duress when he committed the crimes because prior to attacking Charmaine, she had admitted to him that she was having an affair and wanted a divorce; and (8) community based programs would promote Hines' reformation as well as protect the safety interests of society.
At sentencing, Charmaine made a statement in support of Hines' request for a dispositional departure sentence:
"I'm asking the Court to please, you know, as far as my husband, if he could get probation. I'm not saying that what he did wasn't wrong, but I feel like he really wasn't trying to harm me. And I just ask the Court to think about his children, as far as his sentencing. He's really not a-as far as what people are trying to make him out to be. He's a loving father, a loving husband. And I'm just asking the Court, please, to give him probation, to think of his kids."
After Charmaine made her statement, defense counsel argued in favor of granting a dispositional departure sentence, noting that Charmaine and Hines were currently separated and, thus, this was "not a situation where . . . the victim wants to get back together with the defendant and pretend this didn't happen, these individuals are not going to be back together." Defense counsel also pointed out that Hines did not have any prior convictions for any violent offenses and that he pleaded guilty to the two crimes in order to take responsibility for his actions and to have the opportunity to request probation. Furthermore, defense counsel noted that Hines was currently attending counseling for anger management, that he had the support of his family, and that his actions in this case were an isolated event that was explained by the fact that Charmaine had told him she was having an affair and wanted a divorce.
In addition to defense counsel's statements, Hines addressed the court and expressed sorrow for what he had done to Charmaine and asked the court to grant him probation.
The State responded by contending that a departure sentence was not appropriate based on the facts of the case. The State argued that the aggravated number in the applicable grid box should be imposed for both ...