BY THE COURT
Kansas uses sentencing guidelines to help make the sentences
given throughout the state consistent. The sentencing court
must impose the presumptive sentence unless the judge finds
substantial and compelling reasons to impose a departure
statute, K.S.A. 2018 Supp. 21-6815, provides lists of
mitigating and aggravating circumstances the sentencing court
may consider in deciding whether to depart. Mitigating
factors support downward departures; aggravating factors
support upward departures. Although each list is
nonexclusive, if something is listed as a factor on one of
the two lists, the absence of that factor on the counterpart
list means that it may not be the basis for a departure in
that departure direction.
Because less-than-typical harm is in the list of mitigating
factors but greater-than-typical harm is not included in the
list of aggravating factors, greater-than-typical harm may
not be the basis for an upward-departure sentence.
from Geary District Court; Maritza Segarra, judge.
M. Latta, of Kansas Appellate Defender Office, for appellant.
Cruz, assistant county attorney, and Derek Schmidt, attorney
general, for appellee.
Arnold Burger, C.J., Leben and Schroeder, JJ.
Gibson's presumptive sentence under Kansas guidelines was
probation, but the district court sentenced him to prison
based on the court's finding that the harm from his
crimes was greater than usual. That's because
Gibson's criminal use of his brother's identity led
to the brother's arrest.
Legislature has set out lists of aggravating and mitigating
factors for sentencing courts to consider. And under what it
calls the statutory-counterpart rule, the Kansas Supreme
Court has held that when a specific factor is set out in one
of the statutory lists but not the other, the opposite factor
isn't available as a reason for a departure sentence.
Legislature included as a mitigating factor that the harm
from a crime was atypical on the low side but did not include
as an aggravating factor that the harm was atypical on the
high side. That makes the district court's reliance on
greater-than-usual harm an improper basis for a departure
sentence, so we vacate Gibson's sentences and remand the
case for resentencing.
and Procedural Background
people wouldn't know their brother's Social Security
number, but Ardlanders Gibson did. So when he was arrested on
drug charges, he gave his brother's name, date of birth,
and Social Security number. When the man who had been
arrested didn't show up for a ...