IS THE CRIME WAS COMMITTED UNDER DURESS IS THAT A FACTOR THE JUDGE WILL CONSIDER FOR A LESSER SENTENCE?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
State v. Wolf, No. 114,770, 2016 WL 6569063 (Kan. Ct. App. Nov. 4, 2016).
This case answers the following questions:
If a mitigating factor is present, is a court required to impose a departure sentence?
Does duress count as a mitigating factor when deciding whether to impose a departure sentence?
The issue in this case includes whether or not duress may constitute a reason for a dispositional departure sentence. Id. at 5. K.S.A. 2015 Supp. 21-6815(a) provides that the sentencing judge is to impose the sentence provided for in the sentencing guidelines, unless the judge finds “substantial and compelling reasons to impose a departure sentence.” Id. at 5-*6. The determination as to what constitutes “substantial” has been defined as “something that is real, not imagined, something with substance and not ephemeral.” Id. at *6. Further, what constitutes a “compelling reason” includes those reasons that ultimately lead the court “to abandon the status quo and to venture beyond the sentence it would ordinarily impose.” Under K.S.A. 2015 Supp. 21-6815(c)(1) and (2) the court is allowed to consider both mitigating and aggravating factors when making the determination as it if substantial and compelling reasons exist to grant a departure sentence. Id. However, it is important to note that the district court is not required to impose a departure sentence per K.S.A. 2015 Supp. 21-6818(a). Id.
In this specific case, the appellant entered guilty pleas to one count of robbery and one count of aggravated burglary following an incident where she was accused of entering the victim’s vehicle and ensuing a struggle where the appellant ultimately took the victim’s coin purse. Id. at 2. The appellant maintained a criminal history score of A due to 16 entries on the presentence investigation report, which resulted in a presumptive sentence range of 122, 130, or 136 months for the robbery, and 31 months for the aggravated burglary. Id. at 3 -*5. The appellant moved for a dispositional departure, but the district court denied it through the reasoning that a dispositional departure would not safeguard the community, and in addition, noted that the appellant had previously been granted a dispositional departure and, did not appear to have learned her lesson. Id. at 3-4. Instead, the district court imposed a downward durational departure sentence, due to the need for mental health and substance abuse treatment, and issued a 98 months sentence for the robbery and a 31 months sentence for the aggravated burglary to run concurrently. Id. at 4-5.
On appeal, the main argument contended included that the court should have granted a dispositional departure because the appellant was fleeing a violent situation, and therefore, constituted duress. Id. at 6. The appellate court noted that under K.S.A. 2015 Supp. 21-6815(c)(1)(B) that a mitigating factor to be considered for departure includes whether “the offender played a minor or passive role in the crime or participated under circumstance of duress or compulsion.” Id. at 7. The appellate court upheld the ruling of the trial court in denying the motion for the dispositional departure reasoning that simply because there is a presence of a mitigating factor, the district court is not required to depart from the presumptive sentence. Id. at 7*-8*.