WHAT IS A MOTION FOR UPWARD DISPOSITIONAL DEPARTURE?

Kansas utilizes a “sentencing grid” when determining the length of a defendant’s sentence. The grid looks to the crime’s “severity level” and the defendant’s criminal history score, a measure of the defendant’s criminal history. Using these two factors, the grid will give the sentencing court a range of months the defendant should be sentenced, along with whether such a sentence should be served in prison or on probation. This result is known as a “presumptive sentence,” and normally it will be the sentence the court orders. However, the Kansas legislature realized that not all defendants will fit neatly into these boxes. Thus, the court is permitted to grant “departures” from the recommended sentences. These departures can be either in terms of an alternative sentence length, or placing the defendant in prison or on probation against the recommendation of the sentencing grid. Below is a brief overview of an Upward Dispositional Departure. If you have an Upward dispositional departure motion filed in your case the State is trying to put you into prison when you are looking at a presumptive probation crime. 

Statutory Compelling Reasons for Upward (Imprisonment) Departure 

Vulnerable Victim
When the victim of a crime is particularly vulnerable, usually due to age (whether a senior citizen or minor), impairment, or illness, a court may seek to enhance the defendant’s sentence. In State v. Peterson, the sentencing court enhanced the defendant’s sentence from probation to imprisonment based upon the age of his victims: a couple each 75 years old at the time of the crime. Peterson claimed to have performed work on their home, using this as an opportunity to take money from the home. The court found that Peterson deliberately chose the couple based upon their age, hoping they would be reluctant to inform the police and incapable of overpowering him in the event of a confrontation. This predatory selection of a victim justified imprisonment for Peterson, rather than the presumptive probation recommended by the grid.

Excessive Harm was Caused
Just as a smaller-than-expected amount of harm may justify a downward departure, excessive harm caused by a defendant’s crime may warrant imposing prison time over probation. Most frequently this occurs in crimes of physical harm, where the defendant is excessively brutal towards the victim. However, crimes that harm society can also be subject to this enhancement. In State v. Davis, the defendant’s sentence for possession of cocaine was enhanced from probation to imprisonment based upon the large quantity of drugs he was found to possess. Davis argued that possession was a “victimless” crime, and thus the quantity should be irrelevant in determining the harm. After all, the law disallows any amount of cocaine. The Supreme Court of Kansas disagreed, instead standing by the sentencing court’s determination that the large quantity of drugs meant greater harm to society. This logic justified the enhancement, even absent the typical type of brutal harm found in this departure.

Hate Crimes
If the defendant’s actions were motivated by race, religion, ethnicity, or sexual orientation of the victim, the sentence may be enhanced. The factor does not need to be the substantial reason for defendant’s crime, instead it simply must be a factor in defendant’s conduct. Even if defendant is mistaken as to the victim’s characteristic the departure may be granted, as it focuses on the defendant’s motivation and beliefs. In State v. Stawski, the defendant’s sentence was enhanced from probation to imprisonment using this reason. Stawski argued that he had never mentioned the victim’s race, and thus could not be said to have been motivated by race in threatening the victim to keep him from testifying. The court, however, found that the unspoken message behind his actions—which included sending a photograph of two black men hanged, with “KKK” written on the back of the photo—clearly indicated that the victim’s race factored into the motivation for threatening the victim. And that was enough to justify the dispositional departure resulting in imprisonment.

Violation of Fiduciary Relationship
When the defendant violated a fiduciary relationship owed to the victim, a sentence may be enhanced to imprisonment. There is not an enumerated list of which relationships qualify, but the courts have found parent/child, family friend/member of the family, and employee/employer to be suitable relationships. In State v. Smith, an employee used his position with his employer to forge checks to pay his own personal debts. But for his position with the victim, the defendant would not have had the means to commit the crime. The court found this violation of the fiduciary duty owed to the employer justified a dispositional departure from probation to imprisonment.

Defendant Enticed Minor to Commit Crime
If a defendant entices or instructs a minor to commit an offense, the sentence may be enhanced. State v. Martin is likely the inspiration for this inclusion in the updated statutory reasons for upward departure. In Martin, the defendant drove her stepson by the house of Martin’s enemy and instructed her stepson to fire a pistol at the home. The sentencing court found this instruction to commit a felony to be a substantial and compelling reason to enhance Martin’s sentence from probation to imprisonment. The Kansas legislature agreed with this reasoning, codifying enticing a minor to commit a crime as a statutory compelling reasons for enhancement in 2011.

Sexually Violent Crime Committed by Predatory Sex Offender
When a defendant has a conviction for a sexually violent crime, the sentencing statutes consider that person a “predatory sex offender.” If that defendant is convicted of an additional sexually violent crime, their history will be considered a reason to depart from their sentence to an enhanced sentence. The sentencing statutes consider a “sexually violent crime” to be a nonconsensual sexual act or sexual act with any under 14. Most offenses that are considered sexually violent crimes will always carry a presumptive sentence of imprisonment, so it is unsurprising that no decision where dispositional departure was based on this statutory compelling reason have reach appellate review. It is likely that should such an offense occur, the courts would look to durational departures that have been based upon the same statutory language. Those compelling reasons are discussed below.

Defendant Committed Crime While Incarcerated
If the defendant was convicted of a crime committed while incarcerated, the court may use this as a substantial and compelling reasons to increase the defendant’s sentence from probation to imprisonment. This factor is a somewhat recent addition, and seems to be largely unused: it is unlikely an offense committed while incarcerated wouldn’t already require imprisonment. This is because the sentencing grid uses severity and criminal history to determine presumptive sentences, and crimes fitting this category are likely severe. More so, it is very likely the defendant will have a criminal history, as they were incarcerated at the time of the crime. However, likely in response to the decision of State v. Warren, where a defendant’s sentence was shortened based upon the small amount of contraband he smuggled into prison, the Kansas legislature included this as a factor to be considered to enhance sentences.

Organizer of Crime
A defendant that is convicted of a crime involving multiple participants may receive an enhanced sentence if she was the “leader” of the criminal activity. A leader may be the party that organizers, recruits, manages, or otherwise supervisors the other participants. This relatively new provision has not yet been explored upon appellate review. However, it seems that its implementation would be quite similar to inducing a minor to commit a crime, a compelling reason that is discussed above.

Court-Decided Compelling Reasons for Upward Departure 

Prior Crimes While on Probation
If the defendant has an unfortunate history of violating her probation, the court may consider this as a compelling reason to depart from a recommended sentence of probation. In State v. Trimble, the defendant’s criminal history of violating his probation led the sentencing court to sentence Trimble to imprisonment, rather than the probation the sentencing grid suggested. The court noted that limited resources of community corrections should be used on those likely to take advantage of the privileges they offer, rather than repeatedly offered to defendants that have failed to use the resources in the past. The Kansas Court of Appeals agreed with this determination, and found that this fit within the principles of the sentencing laws of Kansas.Remember, this is not an exhaustive list. These are just common reasons that a judge may decide to grant a motion for an upward durational departure. It is your attorney’s job to respond to these types of allegations and/or file a motion for a downward dispositional departure.