CAN THE JUDGE GIVE ME MORE TIME IF MY CRIME CAUSES “EXCESSIVE” HARM?
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. Davis, 262 Kan. 711 (1997).
This case answers the following issues:
What is the standard of review for a departure sentence?
May “excessive harm” justify a departure sentence in the case of a non-person felony charge?
The issue in this case includes whether the sentencing court erred by imposing an upward departure sentence for possession of cocaine and intent to sell reasoning that the crime caused excessive harm. Id. at 711-12. Under K.S.A. 21-4721(d), an appellate court must determine whether the sentencing court’s findings of fact and reasons justifying departure (1) are supported by substantial competent evidence and (2) constitute substantial and compelling reasons for departure as a matter of law. Id. at 713-14. K.S.A. 21-4721(d)(1) requires that facts are stated by the sentencing court that justify the departure was supported by the record. Id. at 714. Further, K.S.A. 21-4721(d)(2) requires that the reasons stated on the record for departure adequately justify a sentence outside of the presumptive sentence. Id. K.S.A. 21-4717(a)(1) provides that the crime was “committed as part of a major organized drug manufacture, product, cultivation or delivery activity” as an aggravating factor. Id.
In this case, the defendant was found with 135 grams of rock cocaine, $3,000 in case, a box of plastic sandwich baggies, and 49 plastic sandwich baggies in a trash can with the bottom corners of the baggies cut off. Id. at 712. the defendant pled guilty to: (1) possession of cocaine with the intent to sell – a severity level 3 felony; and (2) possession of proceeds derived from a violation of the Uniform Controlled Substances Act – a severity level 7 nonpersonal felony. Id. at 711. The defendant’s criminal history was determined to be category I, which put him at a 29 months possible maximum sentence if the two counts were imposed consecutively. Id. at 712. The State filed a motion for a durational departure or consecutive sentence (durational departure sentence of 29 months on count 1, or in the alternative, consecutive sentences on counts 1 and 2 totaling 29 months). Id. The state provided that the grounds for departure included the large amount of cocaine, the substantial amount of money, the packing material, the telecommunication equipment involved in the distribution, and the repeated criminal acts associated with the delivery of the cocaine. Id. In addition, an experienced narcotics investigator testified at the sentencing that this was “one of our pretty large cases here in Salina.” Id. at 713. Due to this information, the sentencing court denied probation and approved the durational departure sentence of 24 months imprisonment for the possession of cocaine with intent to sell charge, and imposed a concurrent sentence of 12 months for the possession of proceeds derived from the violation of the UCSA offense. Id.
The court found that the sentencing court relied on the fact that the defendant was in possession of packaging materials and telecommunication equipment used in the large-scale distribution of drugs and controlled substances; as well as the fact that the defendant was in possession of a large amount of cocaine at the time of his arrest, maintaining a street value between $25,000 to $50,000. Id. at 714. The court thus held that the district court’s factual findings and reasons justifying the departure sentence was supported by substantial and competent evidence and constitute substantial and compelling reasons for departure under K.S.A. 21-4717(a)(1). Id. at 715.