State v. Jackson

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 106,184

STATE OF KANSAS,
Appellee,

v.

RICHARD G. JACKSON,
Appellant.


SYLLABUS BY THE COURT

1.
In a Jessica's Law case, the substantial and compelling reasons for a departure
from the mandatory minimum term of imprisonment must be stated on the record by the
judge at sentencing.

2.
When the sentencing judge departs from the mandatory minimum term of
imprisonment prescribed by Jessica's Law to a sentence pursuant to the Kansas
Sentencing Guidelines Act grid, the judge must first move to the grid block appropriate to
both the defendant's criminal history and the severity level assigned to the crime when it
lacks the element of disparity between the defendant's and the victim's ages.

3.
Once the sentencing court under Jessica's Law has departed to the sentencing
guidelines, nothing precludes the court from granting a further departure. The additional
departure also requires the sentencing court to both state on the record the substantial and
compelling reasons for the departure and to make findings of fact regarding them.

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Appeal from Wyandotte District Court; ROBERT P. BURNS, judge. Opinion filed April 12, 2013.
Sentences vacated and case remanded with directions.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, was on the brief for appellant.

Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

NUSS, C.J.: Richard Jackson appeals the district court's imposition of sentences
totaling 310 months for his Jessica's Law convictions for rape and aggravated criminal
sodomy. We hold Jackson's sentences are illegal because they were not determined in
accordance with required statutory procedures. So we vacate his sentences and remand
for resentencing.

FACTS

Twenty-six-year-old Richard Jackson was charged under K.S.A. 21-3502(a)(2)
and (c) with two counts of the off-grid person felony of rape (sexual intercourse with a
child under 14 years old). He was additionally charged under K.S.A. 21-3506(a)(1) and
(c) with two counts of the off-grid person felony of aggravated criminal sodomy (sodomy
with a child under 14 years of age). Per Jessica's Law, the prescribed sentence for both
off-grid offenses is imprisonment "for life with a mandatory minimum term of
imprisonment of not less than 25 years." K.S.A. 21-4643(a)(1)(B) and (D).

The State dropped one count of each offense in return for Jackson's guilty pleas on
the remaining two counts. The State also recommended that the district court depart to
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the Kansas Sentencing Guidelines Act's grid (K.S.A. 21-4704) from the hard 25
mandatory minimum sentence. The plea agreement provided:

"Defendant will plead guilty to Counts I and III as charged, to run consecutively. The
State will dismiss all remaining counts and recommend a departure to the Grid. No other
departures may be requested."

With an agreed-upon departure to the grid, for sentencing purposes only the
parties appeared to agree to reduce the off-grid offenses to on-grid offenses. The on-grid
offenses of rape and aggravated criminal sodomy are both severity level 1 person
felonies. At the time Jackson pled, the parties apparently believed that his criminal
history score was I. Per K.S.A. 21-4704, the grid block presumptive sentencing range for
a severity level 1 person felony with that criminal history score is 147-165 months. But
Jackson's later presentence investigation report showed he also had seven scored
nonperson misdemeanor convictions for traffic violations. So his criminal history score
actually worsened from I to H, which in turn increased his grid block presumptive
sentencing range to 166-186 months per K.S.A. 21-4704.

The discussion at the later sentencing hearing suggests the parties intended for
Jackson to receive departure sentences totaling 310 months—two consecutive sentences
of 155-months each (for on-grid rape and aggravated criminal sodomy).

THE COURT: ". . . [I]t would appear from his criminal history that we would
establish his criminal history score as I; is that correct, or—
[Prosecutor]: "Judge, I think his criminal history score would technically be H,
because he does have a couple of scoreable misdemeanors, so I would ask his criminal
history be found as H, but Judge, nonetheless, the State will be recommending to the
Court that you follow the plea agreement and make a small downward durational
departure to comport with the 310 months we contemplated in the plea negotiation."
(Emphasis added.)

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For the rape count, the district court sentenced Jackson to 166 months, the low
number in the grid block presumptive sentencing range for a severity level 1 offense and
criminal history H. For the aggravated criminal sodomy count, the court sentenced him to
144 months—a number that does not appear in the grid block presumptive sentencing
range for a severity level 1 offense with either a criminal history score of H or I. The
court did impose the sentences consecutively resulting in 310 months of incarceration.

Jackson now directly appeals his sentences invoking our jurisdiction under K.S.A.
22-3601(b).

ANALYSIS

Issue 1: The district court did not follow statutory authority to impose the departure
sentences.

Jackson argues that for his rape conviction, the district court should have granted
him a departure from the grid block sentencing range and imposed a 144-month sentence
instead of one for 166 months (the low number in the grid block for a severity level I
offense and criminal history H).

Standard of Review

The decision whether to depart from a sentence lies within the discretion of the
sentencing court. See State v. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 5, 194 P.3d 1195
(2008). To the extent this issue requires interpretation of sentencing statutes, this court
exercises unlimited review. State v. Ballard, 289 Kan. 1000, 1010, 218 P.3d 432 (2009).

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Discussion

We discussed the sentencing departure process for Jessica's Law cases in State v.
Jolly, 291 Kan. 842, 249 P.3d 421 (2011), and State v. Spencer, 291 Kan. 796, 248 P.3d
256 (2011). We noted that under K.S.A. 21-4643(d), a district court may depart to the
sentencing grid from the mandatory minimum of a hard 25 sentence provided in K.S.A.
21-4643(a). See, e.g., Jolly, 291 Kan. at 846 (citing State v. Gracey, 288 Kan. 252, 259,
200 P.3d 1275 [2009]). We held a sentencing court that departs under K.S.A. 21-4643(d)
to the sentencing grid should first move to the grid block appropriate to both the
defendant's criminal history and "the severity level assigned to the crime when it lacks
the element of disparity between the defendant's and the victim's ages." Spencer, 291
Kan. at 827. See K.S.A. 21-4703(l) ("'grid block' means a box on the grid formed by the
intersection of the crime severity ranking of a current crime of conviction and an
offender's criminal history classification").

Once the sentencing court departs from the hard 25 to the applicable grid block,
the court may then depart further under the applicable provisions of K.S.A. 21-4701 et
seq., the Kansas Sentencing Guidelines Act (KSGA). Spencer, 291 Kan. at 847; Ballard,
289 Kan. at 1008-09 ("'once sentencing has shifted to the sentencing guidelines, nothing
precludes the district court from granting a departure, either dispositional or durational'").
But as we have cautioned: "[T]he requirements of neither the first step into the guidelines
nor the second step away from the presumptive guidelines sentence can be ignored, and
all departure procedures must be followed." Jolly, 291 Kan. at 847; see Ballard, 289 Kan.
at 1005 ("'presumptive sentence'" is the "'sentence provided in a grid block for an
offender classified in that grid block by the combined effect of the crime severity ranking
of the current crime of conviction and the offender's criminal history,'" quoting K.S.A.
21-4703[q]).

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Here the district court simply did not follow the required statutory departure
procedures. K.S.A. 21-4643(d) requires that "the judge shall state on the record at the
time of sentencing the substantial and compelling reasons for the departure" from the
hard 25 sentence prescribed by Jessica's Law. But the judge did not provide any such
reasons for the sentencing departures from the hard 25 for either offense: 166 months for
the rape or 144 months for the aggravated sodomy. After hearing Jackson speak, the
judge merely stated:

"THE COURT: All right. Thank you. For Count 1, an off-grid felony, Defendant
is hereby sentenced to 166 months of incarceration.
[Mr. Sexton:] Your Honor? 56? 66.
THE COURT: 166. That's the low level for an H—166 months of incarceration
with the Secretary of Corrections. For Count 2, an off-grid felony, Defendant [is] hereby
sentenced to 144 months of incarceration with the Secretary of Corrections. Those
sentences are to run consecutive to each other. Defendant is to have a life post-release
supervision. Defendant's application for probation is denied."

Additionally, after departing from the hard 25 to the KSGA grid, the district court
did not follow the required statutory departure procedures when it then imposed the 144-
month sentence for the aggravated sodomy count. For the grid block composed of this
severity level 1 felony and an H criminal history, the presumptive sentencing range is
166-186 months. Accordingly, the 144-month sentence was a downward departure. See
Ballard, 289 Kan. at 1005 ("'departure'" is "'a sentence which is inconsistent with the
presumptive sentence for an offender,'" quoting K.S.A. 21-4703[f]). And contrary to
K.S.A. 21-4716(a) and 21-4718(a)(4), the district court did not state on the record the
substantial and compelling reasons for the departure or make findings of fact regarding
them. See K.S.A. 21-4716(a) (district court must state on the record the substantial and
compelling reasons for a departure); K.S.A. 21-4718(a)(4) (district court must make
findings of facts for departure sentence). So just as we stated in Jolly: "Accordingly, we
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must conclude the court's departure was not performed according to either Jessica's Law
or the KSGA." 291 Kan. at 847.

All told, while the district court appeared to be adopting the parties'
recommendations for Jackson's incarceration to total 310 months, the departure sentences
of 144 months and 166 months do not comply with the required statutory procedures.
And a sentence that does not comply with required statutory procedures is an illegal
sentence. See Jolly, 291 Kan. at 847 (quoting Ballard, 289 Kan. at 1010 [An illegal
sentence is "'"'a sentence which does not conform to the statutory provision, either in the
character or the term of the punishment authorized.'"'"]).

But neither party argues that Jackson's 310-month sentences are illegal. Instead,
Jackson simply requests an additional departure from 166 months to 144 months for his
rape count—to match his sentence for the aggravated criminal sodomy count. The State
merely responds that the sentence of 166 months was not an abuse of the sentencing
judge's discretion.

We recently dealt with a similar situation in State v. Gilliland, 294 Kan. 519, 276
P.3d 165 (2012). In that Jessica's Law case, the district court denied Gilliland's departure
motion and imposed a 586-month sentence. Gilliland challenged the court's denial, but a
review of the record did not explain the nature of his sentence. We were unable to
determine if the sentence was a 586-month sentence or a life sentence with a mandatory
minimum of 586 months. So we concluded the sentence was illegal because it did not
comply with statutory provision and then sua sponte vacated the sentence. We stated:

"This leaves us in an unusual situation. The State did not object to the sentencing
court's procedure and did not cross-appeal and argue there was a departure without
accompanied findings. Yet, we cannot sensibly talk about Gilliland's contention that the
sentencing court erred when it failed to grant a departure motion when, in effect, it
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appears the court departed. We conclude under these unusual circumstances—where the
sentence is ambiguous because it is contrary to the law and to the explicit finding of the
sentencing court—we must vacate the illegal sentence and remand for resentencing. See
State v. Anthony, 273 Kan. 726, 730, 45 P.3d 852 (2002) (finding appellate court has
authority pursuant to K.S.A. 22-3504 to sua sponte correct an illegal sentence and
remand for imposition of corrected sentence)." Gilliland, 294 Kan. at 552.

See also Jolly, 291 Kan. at 847 (vacating sentence because sentencing court failed to
comply with K.S.A. 21-4643[d] departure requirements); State v. Garcia, 274 Kan. 708,
716-17, 56 P.3d 797 (2002) (vacating for failure to comply with K.S.A. 2001 Supp. 21-
4704a[k] departure requirements); State v. Whitesell, 270 Kan. 259, 294, 13 P.3d 887
(2000) (vacating for failure to comply with K.S.A. 1999 Supp. 21-4716[a] departure
requirements).

Accordingly, we vacate Jackson's departure sentence as illegal and remand for
resentencing.

Issue 2: The State is not required to prove Jackson's criminal history score to a jury
beyond a reasonable doubt.

Finally, Jackson contends that the district court violated his rights under the Sixth
and Fourteenth Amendments to the United States Constitution when it sentenced him to
an increased sentence, based upon his criminal history, without requiring that the State
prove his criminal history to a jury beyond a reasonable doubt. He cites Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Jackson acknowledges
this contention has been previously rejected but presents it to preserve appellate review.
See, e.g., State v. Chavez, 292 Kan. 464, 471, 254 P.3d 539 (2011); State v. Baker, 287
Kan. 345, 371, 197 P.3d 421 (2008); State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781
(2002). We continue to reject this contention.

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Sentences are vacated and the case is remanded for resentencing.

* * *

ROSEN, J., concurring: I agree with the majority's well-reasoned conclusion
finding that Jackson's sentence is illegal because it was not determined in accordance
with required statutory procedures. I write separately to emphasize that the cause of the
confusion that resulted in this appeal—the lack of an accurate criminal history
determination prior to the entry of the plea—and the necessity to vacate the sentence and
remand for resentencing were completely avoidable. I will not dwell on the point; I will
simply refer to my concurring opinion in State v. Garcia, 295 Kan. 53, 64, 283 P.3d 165
(2012), and reiterate that, consistent with Kansas law and the heightened constitutional
protections demanded in criminal proceedings, we should require a predetermined,
accurate criminal history which is to be used at any subsequent sentencing hearing to be
part of plea agreements. Not only does this give Jackson and similarly situated defendants
the knowledge necessary to effectuate a knowing, voluntary, and intelligent waiver of the
right to trial, it recognizes the significance that criminal history plays in the sentencing
scheme and completely avoids the problems associated with the criminal history
crapshoot currently employed in most plea proceedings. We simply should not continue
to legitimize a plea negotiation process that undermines the presumption of fairness and
dignity that serves to protect our liberty interests.

JOHNSON, J., joins in the foregoing concurring opinion.