Archive for the ‘Sentencing guidelines’ Category

Decision: State v. Boyer

June 25, 2009

June 19th. The Kansas Supreme Court has issued its decision in State v. Boyer (No. 98,763), a sentencing appeal. In a unanimous opinion, written by Justice Eric Rosen, the Court held that juvenile adjudications do not count for the purposes of determining whether a criminal is classified as a persistent sex offender. As a result it vacated the sentence imposed on James Boyer and remanded for a new sentencing hearing.

Boyer committed sexually violent crimes, both as a juvenile and as an adult. Neither the Kansas Supreme Court nor the Kansas Court of Appeals’ deigns to tell us what the old offense was or what his newer, adult offense was. The District Court certified Boyer as a persistent sex offender since he had now committed two separate crimes, and thus his sentence was doubled from the presumed 55-month sentence to 110-months.

Boyer appealed, and the Court of Appeals agreed that juvenile adjudications did not count for the purposes of the persistent sex offender statute. Supporting this conclusion the Court of Appeals noted that the Kansas Sentencing Guidelines do include some juvenile adjudications in calculating criminal history scores and not others, while the persistent sex offender statute makes no mention of them. The Kansas Supreme Court affirmed the Court of Appeals decision, agreeing with this and noting that the Legislature has made a distinction between the way juvenile adjudications and criminal convictions are handled, and that if it wanted juvenile adjudications to count for this statute it could say so.

Therefore Boyer’s sentence was vacated and he will be resentenced without the persistent sex offender classification.


Decision: State v. Fischer

April 10, 2009

March 27th. The Kansas Supreme Court has issued its opinion in State v. Fischer (No. 100,334), a criminal law sentencing appeal regarding the use of juvenile convictions in criminal history score calculations for the Kansas Sentencing Guidelines. In a unanimous opinion, written by Justice Johnson, the court held that while its decision in In re L.M. required the abandonment of the previous jury-trial free juvenile court system, any convictions which were final at the time it was decided remain valid for calculating criminal history scores. Note: This case was argued in the January sitting of the Court, after former Chief Justice Kay McFarland’s retirement. District Judge David King served as the seventh member of the court hearing the case.

Sarah Fischer pled guilty to two felony charges (the Court’s opinion does not detail what they were) in Sedgwick County District Court. Her criminal history score was calculated and she was sentenced to 40 months imprisonment. Subsequently she appealed her sentence on the grounds that her criminal history score was driven by juvenile convictions under the old system, and therefore since those convictions did not stem from a jury trial, the exception under Apprendi for prior convictions should not apply. [Under Apprendi v. New Jersey the United States Supreme Court held that factors increasing a defendants sentence must be proven to a jury beyond a reasonable doubt, but it excepted past criminal convictions from this rule].

The State argued that the Court lacked jurisdiction to hear the appeal since a presumptive sentence under the Sentencing Guidelines (such as the one Fischer received) cannot be appealed. The Court rejected this argument on the grounds that since the appeal was based on a constitutional claim that the criminal history was inadmissable, if it found for Fischer the criminal history score would have been wrongly calculated and therefore the sentence she received would not have been a presumptive sentence.

Moving to the merits, the Court rejected Fischer’s argument. It briefly recapped its In Re L.M. decision which held that since the juvenile justice system now mirrored the adult one, the right to a jury trial also attached and old precedents holding otherwise (dating from before the changes to the system) were no longer valid. It then went on to note that In Re L.M. created a new rule of procedure, but did so only for future and pending cases. It explicitly stated that its effect was not retroactive. Therefore Fischer has had the due process she was entitled to, even if today it would happen under a different set of rules, and her past convictions still count.

Decision: State v. Riojas

March 30, 2009

March 27th. The Kansas Supreme Court has issued its opinion in State v. Riojas (No. 98,196), an appeal against a felony murder conviction by Mark Riojas of Wichita. In a unanimous opinion, written by Justice Rosen, the court rejected all of Riojas’ complaints and affirmed his conviction and sentence.

In March 2006 Riojas stabbed and robbed Kenny Brown, who later died of his injuries, during a drug deal gone bad. Riojas had claimed to have taken Brown to a different person for the drugs who had been the one who stabbed him, but several people at the scene identified him as Brown’s assailant. Riojas had also attempted to use Brown’s ATM card. He claimed he had done this at Brown’s suggestion, after Brown had been stabbed in order to pay off the drug bill. A jury convicted him of felony murder and aggravated robbery.

On appeal Riojas made two arguments against his conviction. His first claim was that the trial court had wrongly admitted testimony of a witness who stated that Riojas had described slitting someone open with a knife (while playing with a knife which subsequently disappeared – the witness blaming Riojas for the theft). Riojas argued that this was evidence of prior bad acts which is barred from being admitted by statute, except in narrow circumstances lest it prejudice the jury. Before trial, Riojas’ counsel had sought to suppress this evidence but lost his motion to do so. At trial, his counsel did not object to the evidence once it was admitted. The Supreme Court therefore dismissed this complaint as procedurally barred – a matter can only be raised on appeal, if it was objected to in the actual trial. Motions before trial do not count to make an issue available for appeal.

Riojas’ second complaint was that the jury was prejudiced by the admission of post-mortem pictures of Brown. The court also rejected this argument – noting that in murder cases pictures proving cause of death are generally admissible and that these were not even particularly gruesome.

Riojas also challenged his sentence, on the grounds that it was in part based on his prior criminal history, which had not been submitted to the jury for consideration. These Apprendi complaints conclude most of the Court’s current crop of criminal cases, always with the same result: the Kansas Sentencing Guidelines are valid and constitutional, even after Apprendi.

Finally, Riojas challenged the imposition of a $100 fee to the Indigent Defence Services board. In State v. Robinson (2006) the Kansas Supreme Court had made a ruling requiring District courts to make certain findings when ordering payments to the IDS board at sentencing. In this case however, the $100 was for a fee which Riojas should have paid before trial but had not done so. As such, it was not covered by the ruling in Robinson.

Decision: State v. Gracey

February 10, 2009

February 6th. The Kansas Supreme Court has issued its opinion in State v. Gracey (No. 99,310) a “Jessica’s Law” sentencing appeal. In a unanimous opinion, written by Justice Rosen, the Court affirmed that Kendrick Gracey could be sentenced under “Jessica’s Law”, but vacated the sentence pronounced and remanded the case for resentencing. Note: this case was argued while Chief Justice McFarland was still a member of the court. She was recused from the case and her place taken by Judge Melissa Standridge of the Court of Appeals.

Kendrick Gracey, 21, fondled a 12-year old girl while she was sleeping on a living room couch. Gracey claimed afterwards that he believed the girl was 16. Sex crimes committed by over 18 year olds against under 14 year olds trigger “Jessica’s Law” which results in a mandatory minimum sentence of life imprisonment without the possibility of parole for 25 years. Gracey pled guilty. Mandatory minimums are not as minimum as people think, however. Even “Jessica’s Law” allows Judges to grant a downward departure in sentencing, and in this case the Judge did that, sentencing Gracey to 55 months. The Judge ruled that he could not grant probation as the law stated that the downward departure sentence must follow the sentencing guidelines which would result in a prison sentence in this case.

Gracey’s appeal initially challenges his sentence being pronounced under “Jessica’s Law”. He notes the importance of the age factor in the law and alleges that his charging instrument did not specify that he was over 18, although he did not object at the time of the trial. Such appeals have a fairly high bar to overcome, since they must show that as a result of any defect in the charge prejudiced the defendants defense. In this case the Court rejects this argument out of hand as the charging instrument included Gracey’s date of birth and stated the age requirement in the law.

Gracey succeeded on his second argument. At sentencing he had sought probation but the Trial Court had ruled that under the sentencing guidelines it had no choice (having found sufficient mitigating circumstances to depart from the mandatory minimum sentence) but to follow the sentencing guidelines which were the alternative approach prescribed in the statute. The Trial Court held that it could issue a downward departure in duration but not in disposition (i.e. Gracey had to go to gaol). Gracey argues that the statute defines a departure as a sentence “inconsistent with the presumptive sentence”, which therefore would include the option of probation. The Kansas Supreme Court agreed with Gracey on this point. It held that once the Judge had found sufficient mitigating circumstances to depart from the “Jessica’s Law” sentence, he could have then found those same circumstances sufficient for a further departure from the sentencing guidelines (as laid out therein) to probation. It did not hold that the 55 month sentence was an illegal sentence. While Gracey’s sentence is vacated and the case remanded for another go, the District Court is only instructed to determine whether probation is appropriate. Should it determine otherwise it could still choose prison.

The Court noted that the law at issue was amended in 2008. Future convictions under this law cannot, even with mitigating circumstances, receive probation. Gracey was convicted before this amendment was made. This fact further supported the Court’s reasoning that prior to the amendment the District Court could have considered probation.

Commentary: Justice Rosen is clearly concerned in this opinion that the State applied “Jessica’s Law” to Gracey, who has an IQ of 50. However, it occurs to us that the reason for the mandatory minimum under that law is that these kind of offenders are especially likely to re-offend. A low IQ does not alter that fact: indeed perhaps someone with such an exceptionally low IQ is even more likely to reoffend, since they may be less likely to appreciate the criminal aspect of what they are doing. Whether civil commitment is a better option in such situations is another matter.

Decision: State v. Davis

February 7, 2009

January 30th. The Kansas Supreme Court has issued its decision in State v. Davis (No. 99,665), a motion to correct an illegal sentence. In a brief, unanimous, opinion, written by Justice Davis the Court rejected Mitchell Davis’s argument that the enactment of the Kansas Sentencing Guidelines in 1993 changed his parole date eligibility for crimes he committed in 1992. Note: Robert Davis is now the Chief Justice of the Kansas Supreme Court. This case was argued when former Chief Justice, Kay McFarland was still a member of the Court. McFarland herself was recused from the case. Her place was taken by Judge Christel Marquardt of the Court of Appeals.

Mitchell Davis was convicted in 1992 of a variety of crimes, up to and including attempted first-degree murder. He was sentenced to forty years to life imprisonment, with eligibility for parole after 20 years. In 1993, Kansas enacted the Kansas Sentencing Guidelines Act. Under this regime, Davis would have received a lighter sentence. Davis contended that his parole eligibility must be recalculated based on this amendment to the law. The Court dismissed this argument entirely, noting that the relevant part of the Kansas Sentencing Guidelines Act by its own language only applies to felony cases for crimes committed on or after July 1, 1993. Davis’ crimes were committed before that, and therefore his parole eligibility is governed by the law in place at the time of his conviction.