CAN YOU GET MORE PUNISHMENT FOR COMMITTING A CRIME WHILE ON PROBATION?
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. Trimble, 21 Kan.App. 2d 32 (1995).
This case addresses the following issue:
Is the imposition to serve a prison sentence rather than a probation term for a crime committed while on parole considered a departure?
The issue in this case includes whether the trial court erred by imposing a prison term rather than probation under the sentencing guidelines, and if by imposing a prison sentence rather than probation, constituted a dispositional departure. Id. at 33. K.S.A. 1993 Supp. 21-4703(h) provides that a “dispositional departure” is defined as “as sentence which is inconsistent with the presumptive sentence by imposing a nonprison sanction when the presumptive sentence is prison or prison when the presumptive sentence is nonimprisonment.” Id. at 34. Further, K.S.A. 1993 Supp. 21-4716(a) states that the sentencing judge is to impose the presumptive sentence absent substantial and compelling reasons to impose a departure. Id. at 35. The court reviewed K.S.A. 1993 Supp. 22-3716(b) and noted that “when probation is revoked due to a conviction for a new felony, a consecutive sentence is mandated … In this case, the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction presumes a nonprison sentence. Such action does not constitute a departure.” Id. at 35-36. The court stated that due to the fact that this statue applies to a crime committed while on release to community corrections, the court has extended that in such cases, the court may sentence the offender to imprisonment for the new conviction without a departure even when the new crime of conviction presumes a nonprison sentence. Id. at 36. In addition, the review of a departure sentence on appeal 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” as noted under K.S.A. 1993 Supp. 21-4721(d). Id. at 38.
In this case, the defendant plead guilty to two counts of burglary that were committed while on parole. Id. at 33. The sentencing guidelines report stated that due to the previous 32 burglary convictions, 4 theft convictions, and 2 aggravated juvenile delinquency convictions amounted to an indeterminate sentence of 18 to 58 years, however, the trial court ultimately did not take into account the 26 prior nonperson felonies and subsequently converted the guidelines sentence to 23 months with potential good time credit of 4.6 months and 12 months of postrelease supervision. Id. However, the trial court made a dispositional departure and ordered that the appellant spend his sentence in prison rather than probation. Id. The court reasoned that it did so because the defendant was on parole at the time these burglaries were committed, as well as the fact that the defendant committed 23 other burglaries while also on parole and ultimately made the conclusion that the defendant was not amenable to probation. Id. at 34. In addition, the trial court stated that by imposing a prison sentence rather than parole or probation was not considered a departure. Id.
The court looked to the new amendments provided for K.S.A. 1993 Supp. 21-4603d, which stated “[w]hen a new felony is committed while the offender … is on parole … the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure.” Id. at 37. The court then noted that this amendment was not in effect at the time of the defendant’s sentence conversion, and therefore, at the time, the only circumstance that would have allowed for the conversion to a prison sentence that would not have constituted a departure would have been if the defendant had been on probation or community corrections. Id. The court thus concluded that this was a departure because the defendant was on parole at the time. Id. Due to the classification as a departure, the court then turned to if there was “substantial and compelling” reasons for the departure at the time of sentencing. Id. at 38. With little discussion, the court held that, even though K.S.A. 1993 Supp. 21-4716(b)(2) does not include the fact the defendant committed dozens of burglaries while on parole as a nonexclusive aggravating factor, it may still be considered, and ultimately determined, that based on those findings, the reasons stated was substantial and compelling enough to uphold the departure. Id.