CAN YOU GET A MORE SEVERE PUNISHMENT IF THE VICTIM IS AN ELDERLY PERSON?
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. Peterson, 25 Kan. App. 2d 354 (1998).
This case addresses the following issues:
Can the court impose a higher sentence for a crime committed against a(n) elderly victim(s)?
What is required to justify an upward departure sentence on appeal?
The issue that arises in this case includes whether the sentencing court erred by failing to state on the record the substantial and compelling reasons for the upward departure in sentencing. Id. at 354. K.S.A. 21-4721(d)(1) provides that appellate review of a departure sentence is limited to whether the sentencing court’s findings of fact and reasons justifying a departure (1) are supported by evidence in the record, and (2) constitute substantial and compelling reasons for departure. Id. at 356. The determination as to whether the factors relied upon by the court constitute substantial and compelling reasons for departure is a question of law and the court must state on the record at the time of sentencing the substantial and compelling reasons for the departure. State v. Jackson, 262 Kan. 119, 134 (1997).
In this case, the defendant contracted and unsatisfactorily completed odd jobs for the victims. 25 Kan. App. 2d at 354. The victims at the time of the crime were both 75 years old. Id. Even though the jobs were not completed to the standard the victims expected, they still paid the defendant the full contracted price. Id. The defendant subsequently forced entry into the victims house at two separate times and stole a purse that contained over $900. Id. at 354-55. The defendant was then arrested with over $925 in his possession and convicted of robbery and aggravated burglary. Id. at 355. The defendant maintained a criminal history category of “E” and both of his convictions were classified as severity level 5 crimes. Id. The 5-E grid block has a presumptive sentence of 46 to 51 months’ imprisonment. Id. However, the court approved an upward departure sentence and imposed a sentence of 102 months’ imprisonment solely for the aggravated burglary conviction. Id. For the robbery conviction, the court imposed a 68 months departure sentence and ordered the sentences to run consecutively, ultimately issuing a controlling term of 170 months. Id. The court granted to motion for departure stating that the “statutory aggravating factor existed, that being that the victims are particularly vulnerable due to age … which was known or should have been known to the offender at the time of the commission of the offense.” Id. at 356.
On appeal, the court first looked to determine whether the reasons enumerated by the sentencing court that justified the sentencing departure were supported by evidence in the record. Id. The court held that that the sentencing court appropriately relied on evidence that displayed the vulnerability of the victims due to their age which was known or should have been known by the defendant. Id. at 356-57. The court next dealt with the issue of if the vulnerability of the victims constituted a substantial and compelling reason for the departure. Id. at 357. The court noted that K.S.A. 1997 Supp. 21-4716(b)(2)(A) specifically provides that the vulnerability of the victim is an aggravating factor that may be considered when determining if substantial and compelling reasons exist for the departure. Id. The court thus held that the departure was justified and was fully within the discretion of the sentencing court to impose. Id.