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State of Kansas v. Richard G. Jackson

April 12, 2013

STATE OF KANSAS, APPELLEE,
v.
RICHARD G. JACKSON, APPELLANT.



Appeal from Wyandotte District Court; ROBERT P. BURNS, judge.

SYLLABUS BY THE COURT

SYLLABUS BY THE COURT 1. In a Jessica's Law case, the substantial and compelling reasons for a departure from the mandatory minimum term of imprisonment must be stated on the record by the judge at sentencing. 2. When the sentencing judge departs from the mandatory minimum term of imprisonment prescribed by Jessica's Law to a sentence pursuant to the Kansas Sentencing Guidelines Act grid, the judge must first move to the grid block appropriate to both the defendant's criminal history and the severity level assigned to the crime when it lacks the element of disparity between the defendant's and the victim's ages. 3. Once the sentencing court under Jessica's Law has departed to the sentencing guidelines, nothing precludes the court from granting a further departure. The additional departure also requires the sentencing court to both state on the record the substantial and compelling reasons for the departure and to make findings of fact regarding them.

The opinion of the court was delivered by: Nuss, C.J.

Sentences vacated and case remanded with directions.

The opinion of the court was delivered by NUSS, C.J.

Richard Jackson appeals the district court's imposition of sentences totaling 310 months for his Jessica's Law convictions for rape and aggravated criminal sodomy. We hold Jackson's sentences are illegal because they were not determined in accordance with required statutory procedures. So we vacate his sentences and remand for resentencing.

FACTS

Twenty-six-year-old Richard Jackson was charged under K.S.A. 21-3502(a)(2) and (c) with two counts of the off-grid person felony of rape (sexual intercourse with a child under 14 years old). He was additionally charged under K.S.A. 21-3506(a)(1) and (c) with two counts of the off-grid person felony of aggravated criminal sodomy (sodomy with a child under 14 years of age). Per Jessica's Law, the prescribed sentence for both off-grid offenses is imprisonment "for life with a mandatory minimum term of imprisonment of not less than 25 years." K.S.A. 21-4643(a)(1)(B) and (D).

The State dropped one count of each offense in return for Jackson's guilty pleas on the remaining two counts. The State also recommended that the district court depart to the Kansas Sentencing Guidelines Act's grid (K.S.A. 21-4704) from the hard 25 mandatory minimum sentence. The plea agreement provided:

"Defendant will plead guilty to Counts I and III as charged, to run consecutively. The State will dismiss all remaining counts and recommend a departure to the Grid. No other departures may be requested."

With an agreed-upon departure to the grid, for sentencing purposes only the parties appeared to agree to reduce the off-grid offenses to on-grid offenses. The on-grid offenses of rape and aggravated criminal sodomy are both severity level 1 person felonies. At the time Jackson pled, the parties apparently believed that his criminal history score was I. Per K.S.A. 21-4704, the grid block presumptive sentencing range for a severity level 1 person felony with that criminal history score is 147-165 months. But Jackson's later presentence investigation report showed he also had seven scored nonperson misdemeanor convictions for traffic violations. So his criminal history score actually worsened from I to H, which in turn increased his grid block presumptive sentencing range to 166-186 months per K.S.A. 21-4704.

The discussion at the later sentencing hearing suggests the parties intended for Jackson to receive departure sentences totaling 310 months-two consecutive sentences of 155-months each (for on-grid rape and aggravated criminal sodomy).

THE COURT: ". . . [I]t would appear from his criminal history that we would establish his criminal history score as I; is that correct, or-

[Prosecutor]: "Judge, I think his criminal history score would technically be H, because he does have a couple of scoreable misdemeanors, so I would ask his criminal history be found as H, but Judge, nonetheless, the State will be recommending to the Court that you follow the plea agreement and make a small downward durational departure to ...


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