Appeal from Neosho District Court; DARYL D. AHLQUIST, judge.
BY THE COURT
1. The double rule of K.S.A. 21-4720(b) does not apply to off-grid sentences. Subsection (b)(2) provides tat when grid and off-grid sentences run consecutively, the offender serves the off-grid sentences first and does not begin to serve the grid sentence until paroled from the off-grid sentence. Because the primary crime cannot be an off-grid crime, the double rule applies to the grid crimes after the defendant serves his or her off-grid sentence and does not limit the off-grid sentences. Where off-grid and on-grid sentences all run concurrent with each other, the grid sentence is subsumed into the off-grid sentence, and the double rule does not come into play.
2. A district court abuses its discretion in sentencing if it makes a legal error about the factors it may consider. Remand for resentencing in such a case is appropriate if there is a reasonable probability that the district court would have made a different sentencing decision but for the legal error.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
Kristafer R. Ailslieger, deputy solicitor general, for appellee.
Before LEBEN, P.J., PIERRON and STEGALL, JJ.
Amanda L. Grotton pled guilty to the rape and sexual exploitation of her 4-year-old daughter based on a video--that she alleged her boyfriend forced her to make--depicting Grotton inserting her fingers and dildos into her daughter's vagina. Grotton was sentenced to two concurrent life sentences without the possibility of parole for 25 years and to a concurrent 6-month sentence for obstructing a police officer's official duty during her arrest. In Kansas, many criminal sentences--including obstructing official duty--are determined by putting a defendant's crime and criminal history into a sentencing grid. Sentences for certain more serious crimes--including the rape of a child and the sexual exploitation of a child--are indeterminate sentences (with a required minimum number of years of incarceration) not found in the grid.
On appeal, Grotton argues that her off-grid life sentences are illegal under the double rule, which provides that a defendant sentenced for multiple convictions can generally only be required to serve a maximum sentence double the length of the sentence of the defendant's primary crime. K.S.A. 21-4720(b)(4). She claims that because she has multiple convictions, she should have received a 12-month sentence (or twice her 6-month sentence for her primary crime--obstructing official duty). But when we look at the Kansas Sentencing Guidelines Act as a whole, we find that the legislature did not intend for the double rule to apply to off-grid crimes. If it did, it would lead to an absurd
result--the double rule would limit Grotton's sentence to 12 months, while someone convicted of the same off-grid crimes but not an additional grid crime would serve life sentences.
Grotton also argues that the district court made a legal error by concluding it couldn't consider her criminal history in deciding whether to grant a departure from her life sentences. The court stated that it believed that the impact of prior criminal history was " up to the legislature" and that it wasn't the court's " place to substitute [its] judgment with respect to the value of prior criminal history." Because K.S.A. 21-4643(d)(1) lists " no significant history of prior criminal activity" as a factor that can be a substantial and compelling reason for a court to depart, we remand the case so that the district court can reconsider a departure using the correct legal standard.
Factual and Procedural Background
In 2012, Grotton pled guilty to the rape and sexual exploitation of her 4-year-old daughter, both off-grid person felonies, for placing her fingers and two dildos in her daughter's vagina in November 2008. The State had a video depicting the events, and Grotton alleged that her boyfriend forced her to make the video when he was not present. Grotton also pled guilty to obstructing official duty, a severity-level-9 nonperson felony, for intentionally resisting a police officer when he tried to arrest her on the charges for rape and sexual exploitation of a child in March 2011.
Before sentencing, Grotton filed a motion requesting a downward-durational departure to obtain a shorter sentence. In a sentencing memorandum, Grotton acknowledged that her presumptive sentence would have been 25 years of incarceration if she had pled guilty to only the off-grid crimes. But she argued that since she pled guilty to obstructing an official duty, that crime is her primary offense, and under the double rule--which provides that the total prison sentence the sentencing court imposes cannot exceed twice the base sentence--her total controlling sentence could be no more than twice her maximum sentence for obstructing official duty, or 12 months. K.S.A. 21-4720(b)(4). The district court ruled that the double rule did not apply in Grotton's case because it only covers grid crimes and would cause an absurd result if applied to off-grid crimes.
The court sentenced Grotton to two concurrent life sentences without the possibility of parole for 25 years for rape and sexual exploitation of a child and to a concurrent 6-month sentence for obstruction ...