Sentencing is the final step in a defendant’s criminal prosecution. The judge will solely decide what the sentence will be. The judge will be able to use both the presentence investigation report and the Kansas sentencing grid in determining at the sentence they will impose.
The prosecuting attorney, defense counsel, and defendant will all attend the sentencing hearing which is conducted in open court. Similar to trial, the district attorney will go first in addressing the judge by drawing their attention to certain evidence from the trial and the presentence report in order to argue for what they deem an appropriate sentence. Defense counsel will then do the same. In some cases, a victim or the victim’s family will be able to make statements to the court. The defendant will address the court last. This could be the first and only time they address the court during the prosecution process. Unlike not testifying at trial, it is not advantageous to refuse this opportunity to speak. After the defendant has finished speaking, the judge will issue the sentence. This is usually done immediately following the parties speaking but the judge can, in some complex circumstances, take a day or so to issue the sentence.
Kansas’ sentencing grid dictates that a sentence has to fall within a certain range of months. The grid also provides a sentence of either probation or incarceration. Together, these are called the presumptive sentence. To determine this presumptive sentence, the judge will input two figures into the grid. The first is the severity level of the convicted crime. Severity levels range from one to ten, with one as the most severe. The defendant is then placed into a category situated upon their previous convictions. These categories ranged from A through I, with A being the most severe. The category increases upon the number of misdemeanors, nonperson felony, and person felony convictions a defendant has accumulated. Guided by these two numbers, the judge will arrive at a presumptive sentence which includes a duration range and disposition.
Some facts will be seen as “aggravating factors” and will require the court to hand down a more severe sentence. These are not necessarily illegal acts but rather acts the Kansas legislature wants reviewed during sentencing. An example would be when a felony is committed, and a gun was used, the presumptive sentence would be automatically incarceration despite where the offense lands on the sentencing grid. In State v. George, the defendant hit his victim with an unloaded gun and was convicted of battery. Thus, the use of the gun mandated that the defendant’s presumptive probation be enhanced to presumptive incarceration.
Conversely, some facts are seen as “mitigating factors” which reduce the duration or disposition of a defendant’s presumptive sentence. Generally, these are in the form of alternatives to incarceration, such as substance abuse treatment programs. These programs are based upon certain facts, but the judge ultimately has the discretion whether to consider the programs or not. The Kansas legislature trusts the sentencing judge is able to determine from the evidence, presentencing report, and statements made at the sentencing hearing to decide if a defendant is qualified to be admitted into a substance abuse facility as these programs have limited bed space.
The judge is not mandated to order the presumptive sentence. There are dispositional departures, which puts a defendant on probation rather than incarcerating them. There are also durational departures, where a sentence length outside the recommended range is granted. In order to depart from the presumptive sentence, the judge must find “substantial and compelling” reasons to do so, as well as note these reasons when the departure is announced. These reasons can include the defendant accepting responsibility for the crime (as in State v. Bird), the defendant caused only minor harm compared to the usual type of crime (as in State v. Warren), or the defendant’s amenability to rehabilitation (as in State v. Bolden).
In contrast, an upward departure can be requested by the state. Upward departures can either change duration, disposition, or both, just like downward departures. The stand of “substantial and compelling” reasons is still the same. The court in State v. Stawski held that reasons to grant an upward departure includes crimes motivated by hate towards a gender, religion, or race.
The judge will announce the sentence after hearing the relevant evidence and departure requests. If a departure is granted, the substantial and compelling reasons will be noted. This announcement is made in open court and is on the record. The defendant will also be informed of their right to appeal by the judge before the hearing and case is concluded. If the sentence is incarceration, the defendant will be taken into custody until transported to prison. If the sentence is probation or treatment, the defendant will be mandated to make the proper arrangements with the corresponding supervision or program.