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State v. Gibson

Court of Appeals of Kansas

December 20, 2019

State of Kansas, Appellee,
v.
Ardlanders Gibson, Appellant.

         SYLLABUS BY THE COURT

         1. 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 sentence.

         2. A 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.

         3. 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.

          Appeal from Geary District Court; Maritza Segarra, judge.

          James M. Latta, of Kansas Appellate Defender Office, for appellant.

          Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

          Before Arnold Burger, C.J., Leben and Schroeder, JJ.

          LEBEN, J.

         Ardlanders 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.

         But the 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.

         The 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.

         Factual and Procedural Background

         Most 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 ...


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