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State v. Bird

Supreme Court of Kansas

November 22, 2013

STATE OF KANSAS, Appellant,
v.
SEAN BIRD, Appellee

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 17, 2010.

Page 1266

Appeal from Saline District Court; JEROME P. HELLMER, judge.

SYLLABUS

BY THE COURT

1. A sentencing court is required to impose the presumptive sentence provided by the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., unless the judge finds substantial and compelling reasons to impose a departure sentence.

2. Although K.S.A. 21-4716(c) contains a list of potential departure factors, the list is nonexclusive, and a sentencing court can rely on nonstatutory factors to depart as long as the factors are consistent with the principles underlying the Kansas Sentencing Guidelines Act.

3. Recognizing a defendant's acceptance of responsibility as a nonstatutory departure factor is consistent with the underlying principles of and legislative purposes behind enacting the Kansas Sentencing Guidelines Act.

4. The sentencing court's articulated reasons for granting a departure must be supported by substantial competent evidence.

5. In order to determine whether a sentencing court's articulated reasons for granting a departure are supported by substantial competent evidence, an appellate court must have factual findings from the district court.

Ellen H. Mitchell, county attorney, argued the cause, and Steve Six, attorney general, was with her on the brief for appellant.

Janine A. Cox, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellee.

OPINION

Page 1267

[298 Kan. 394] MORITZ, J.

We granted Sean Bird's petition for review seeking reversal of the Court of Appeals' decision vacating the district court's imposition of a downward durational departure sentence. Because we conclude substantial competent evidence supports at least two of the mitigating factors found by the district court and those factors, when considered together, constituted substantial and compelling reasons to depart, we reverse the panel's decision and affirm the district court's departure sentence.

Factual and Procedural Background

After Bird was arrested for robbing a Taco John's restaurant, law enforcement officers executed a search warrant on his home and discovered controlled substances and drug paraphernalia. Based on this evidence, the State charged Bird with robbery, criminal threat, possession of cocaine, possession of marijuana, and possession of drug paraphernalia. Bird eventually pled guilty to possession of cocaine, and in return the State dismissed the remaining ...


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