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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. Ussery, 34 Kan.App.2d 250 (2005).

This case addresses the following issue:

May a court consider a defendant’s age or diminished capacity as a reason for a departure sentence?

The sentencing judge is to impose the presumptive sentence as noted by the sentencing guidelines, unless the judge finds substantial and compelling reasons to depart as provided by K.S.A. 2004 Supp. 21-4716(a). Id. The sentencing court is to address two questions when reviewing a sentencing departure: (1) was the sentencing court’s reasons for the departure supported by substantial and competent evidence and, (2) is each stated reason for the departure substantial and compelling as a matter of law? Id. at 252. In addition, nonstatutory departure factors are subject to greater scrutiny than those factors enumerated within K.S.A. 2004 Supp. 21-4716(c)(1). Id. at 741.

In this case, the defendant received a downward durational and dispositional departure sentence after the he was convicted of the statutory rape of a 13-year-old girl. Id. at 251. Prior to the rape, the victim had become so intoxicated that that the young men with her believed that she may have had alcohol poisoning, however, the group made the decision not to admit the girl to the hospital and drove her back to the apartment instead. Id. Each of the four men in the group subsequently engaged in sexual intercourse with the 13-year-old victim. Id. Prior to sentencing, the defendant filed a motion for a dispositional departure sentence claiming that (1) the victim was a willing participant in the conduct; and (2) the degree of harm or loss attributed to the offense was less significant than the typical offense of this nature. Id. at 252. The court granted the motion for the departure and ordered him to serve a 60 month probation with an underlying sentence of 30 months, when the presumptive guidelines sentence was 147 to 165 months. Id. The trial court gave the following reasons for granting the departure: (1) the relative sentences of the codefendants in relation to each defendant’s relative culpability, (2) the degree of harm associated with this particular crime, (3) the willing participation of the victim in the criminal conduct, and (4) the defendant’s receptiveness to rehabilitation. Id. Of particular interest is that of the comparison of codefendants. Specifically, the trial court compared that of the defendant, tried as an adult, with one of his co-defendants, tried as a juvenile. Id. at 740. The trial court noted that the codefendant whom was seen as the primary instigator of the events that lead to the sexual intercourse with the 13-year-old victim by each of the young men in the group, also was the one who provided alcohol to the victim and engaged in two separate acts of sexual intercourse with the victim. Id. However, the juvenile codefendant was offered a plea agreement that dismissed one of the rape charges and one of the furnishing alcohol to a minor charges which resulted in a 30 months sentence in a juvenile detention facility. Id. The trial court thus reasoned that the defendant should not receive a greater sentence than that imposed on the more culpable codefendant. Id.

The appellate court reversed the decision of the sentencing court to impose the downward departure sentence on this reasoning. Id. at 742. The court noted that the Kansas Supreme Court has previously held that a criminal defendant’s immaturity and impaired judgment due to age may be considered as a mitigating factor. Id. Therefore, the sentencing court had the opportunity to rely upon this defendant’s “relative age, immaturity, or impaired judgment to justify the departure … [and] could have provided a substantial and compelling reason to depart from the presumptive guidelines sentence.” Id. Instead of focusing on this defendant’s diminished capacities as compared to the average adult offender, the sentencing court focused on the defendant’s diminished capacities in regards to his juvenile codefendant and, thus, the court erred by basing a downward departure on this reasoning. Id.

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