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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 101,077 STATE OF KANSAS, Appellant, v. HAROLD DEAN SPENCER, Appellee.

SYLLABUS BY THE COURT
1.

In Jessica's Law and non-Jessica's Law sentencing departure cases: (1) When the question is whether the record supported a sentencing judge's particular articulated reasons for departure, an appellate court's standard of review is substantial competent evidence; (2) when the question is whether a sentencing judge correctly concluded that particular mitigating factors constituted substantial and compelling reasons to depart in a particular case, including whether those mitigating factors outweighed any aggravating factors if such a balance is necessary, the appellate standard of review is abuse of discretion; (3) when the question is whether a particular mitigating or aggravating factor can ever, as a matter of law, be substantial and compelling in any case, the appellate standard of review is de novo; and (4) when the challenge focuses on the extent of a durational departure, the appellate standard of review is abuse of discretion, measuring whether the departure is consistent with the purposes of the guidelines and proportionate to the crime severity and the defendant's criminal history.

2. In a Jessica's Law case, the sentencing judge need not differentiate between the reasons that support a departure from the mandatory minimum term of imprisonment

under K.S.A. 21-4643(d) and the reasons that support a dispositional departure from the sentencing guidelines to probation.

3. In a Jessica's Law case, the reasons for a departure from the mandatory minimum term of imprisonment must be stated on the record at sentencing. A sentencing judge, prior to or in lieu of any appeal, may not later add other reasons to support a granted departure to the record of the case.

4. On the facts of this case, the sentencing judge abused his discretion in departing from the mandatory minimum of Jessica's Law.

5. On the facts of this case, the sentencing judge abused his discretion by granting a dispositional departure to probation.

6. On remand for resentencing, the sentencing judge in a Jessica's Law case may reevaluate and/or add to the reasons for departure from the mandatory minimum term of imprisonment under K.S.A. 21-4643(d) and for dispositional departure to probation and decide in his or her discretion to re-grant the departure or departures. He or she also may decide whether to grant a durational departure.

7. Aggravated indecent liberties in violation of K.S.A. 21-3504(a)(3)(A) perpetrated by a defendant 18 years or older upon a victim younger than 14 is an off-grid crime. If the sentencing judge departs from the mandatory minimum of Jessica's Law to a sentence pursuant to the sentencing guidelines act, the judge shall go to the grid box associated

with the severity level assigned to the crime when it lacks the element of disparity between the defendant's and the victim's ages.

Appeal from Shawnee District Court; MATTHEW J. DOWD, judge. Opinion filed March 18, 2011. Sentences vacated; remanded with directions for resentencing.

Natalie A. Chalmers, assistant district attorney, argued the cause, and Jamie L. Karasek, assistant district attorney, Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were on the brief for appellant.

Carl Folsom, III, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: This is an appeal taken by the State from the departure sentence given defendant Harold Dean Spencer by District Court Judge Matthew J. Dowd. Spencer pleaded guilty to two counts of aggravated indecent liberties with a child, both off-grid felonies punishable under Jessica's Law. One of the victims was his 6-year-old greatgranddaughter; the other was a granddaughter of similar age who was living with Spencer and his wife at the time the crimes came to light.

The potential issues before us are:

1. Whether the sentencing judge properly relied on the same findings to support both a departure from the mandatory hard 25 sentence under Jessica's Law, K.S.A. 214643(d), to a sentence under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 214701 et seq., and a dispositional departure from a KSGA prison term under K.S.A. 214716(a) to probation.

2. Whether the reasons articulated by the sentencing judge for departure from the mandatory minimum of Jessica's Law were substantial and compelling.

3. Whether the reasons articulated by the sentencing judge for the dispositional departure were substantial and compelling.

4. Whether the sentencing judge abused his discretion in the extent of departure granted.

5. In the event the defendant's sentences must be vacated because either or both departures were inappropriate, whether a new sentencing judge is permitted on remand to re-evaluate his or her reasons and re-grant or deny either or both departures and to consider a durational departure.

6. Whether, on a State appeal of a departure sentence for aggravated indecent liberties, this court has authority to entertain a defense challenge to the offense severity level used by the sentencing judge, and, if so, the correct method and result for a departure from Jessica's Law to a sentence "pursuant to the sentencing guidelines act."

FACTUAL AND PROCEDURAL BACKGROUND

Spencer was charged with one count of aggravated indecent liberties in violation of K.S.A. 21-3504(a)(3)(A), perpetrated on a great-granddaughter, and one count of rape in violation of K.S.A. 21-3502(a(2), perpetrated on a granddaughter. On arrest, Spencer confessed to fondling the girls but not to rape. In exchange for his guilty pleas to two counts of aggravated indecent liberties, the State agreed to stand silent at sentencing.

Spencer moved for departure, arguing in his written motion that his waiver of preliminary hearing and jury trial had spared the victims emotional harm and that he had

accepted responsibility and expressed remorse. He also argued that his lack of prior criminal activity and age of 76 justified departure. His counsel also wrote that Spencer had "been law-abiding and gainfully employed his entire life," that he had "raised several children and grandchildren," that he was "the primary care-giver for his sick and ailing wife," that he had "strong support from his family and others in the community," and that the "victim's mother favors probation."

At the sentencing hearing, several members of Spencer's family spoke of his vital role among their kin and his caretaking of his wife, as well as previous acts of kindness and generosity. It appears from the record that certain other members of the family may have disagreed, as there were references to the crimes tearing the family apart. A minister also spoke on Spencer's behalf. Judge Dowd also had access to victim impact statements, one written by the mother of the great-granddaughter, who opposed Spencer's imprisonment, and one composed by the granddaughter, who indicated that Spencer should go to jail. Judge Dowd also noted numerous letters written by "friends and family of the defendant indicating that he is a good citizen, a good person, and a suitable candidate for some sort of leniency." When Judge Dowd asked Spencer if he had anything to say, Spencer said only, "I just wish I could undo it."

After airing of a disagreement between the parties about the point on the sentencing guidelines to which a district judge departing from a hard 25 under Jessica's Law should go--with the State arguing for an offense severity level 1 and the defense arguing for an offense severity level 3--Judge Dowd ruled:
"Certainly, this is always a serious situation, a serious crime. I am very aware of the impact it's had on the defendant's family, on his friends, and on the community. There's a kind of a mixed input in regard to the harm that was done to these young ladies. It does not appear that the harm was terribly significant. The mom of the children herself says that they have dealt with this fairly well. And so I think the victim, the victim impact is not as serious as it would be in an ordinary case of this nature."

At this point, counsel for the State corrected the judge, saying that there were different mothers of the two victims involved in the case. Judge Dowd acknowledged this fact. He then continued:

"In any event, I think what I've heard here today would seem to indicate that a departure is necessary, appropriate, and there are substantial and compelling reasons to depart. I think the age of the defendant, his prior record, and his support from his family and friends would lead the Court to believe that this might have been an aberration or a momentary lapse in an otherwise good life, so I am going to depart. "I am going to adopt--since I'm going to also depart durationally, I think it's really not terribly significant how many years or months we give, because I am going to depart dispositionally. But I will adopt the State's theory and go from life imprisonment to a number of years--or pardon me, a number of months as indicated on the guideline grid for the severity level 1. So I'm going to impose a 155-month sentence to the Secretary of Corrections. The defendant's criminal history is "I" and that's the low range on the severity level number 1, 155 months.

"I'm also going to depart dispositionally. I think that it would not, it would not serve the end of justice to incarcerate the defendant. I think that a significant amount of time in prison would be tantamount to a life sentence for this man in light of his age, and age is listed as one of the reasons to depart. Usually we think of that as a young person not really aware of his responsibilities, but I think it also can be interpreted as age in the sense of an elder person.

"In any event, I'm going to impose the 155 months, 36 months of post-release supervision and 36 months supervised probation . . . .

....

". . . And also, we should impose the same sentence on Count 2. And they will run concurrent. That will be the order of the Court."

A month after the sentencing hearing and the State's filing of its notice of appeal, when the parties could not agree on the appropriate content of the journal entry, the defendant filed a written objection. The objection sought to have the listed reasons for departure expanded from the three enumerated in the State's proposed journal entry--the age of the defendant, the lack of a criminal record, and family support--to ten--(1) the age of the defendant; (2) the defendant's health; (3) "Defendant is the primary caretaker for his extremely ill wife"; (4) lack of prior record; (5) support of family and friends; (6) expression of remorse and claim of responsibility; (7) "Victim, through mother, asked the Court to grant probation"; (8) "Degree of harm associated with this particular crime was significantly less than is typical for such offense"; (9) "Defendant did not exercise any confrontational rights by way of preliminary hearing or trial and plead [sic] guilty"; and (10) "State stood silent thereby offering no opinion as to sentencing."

The State responded in writing to the defense objection, arguing that the court's minutes for the sentencing hearing specifically referenced only three departure factors. The minutes are not in the record on appeal. The State also quoted a portion of the judge's remarks at sentencing, specifically: "'[T]here are substantial and compelling reasons to depart. I think the age of the defendant, his prior record, and his support from his family and friends would lead the Court to believe that this might have been an aberration or a momentary lapse in an otherwise good life, so I am going to depart.'" The State continued: "While Defendant may desire to have the addition of seven more departure factors, such were clearly not relied upon by the Court as evinced by the record and the minutes.'"

Approximately a month after the State filed its response, Judge Dowd held a hearing to settle the journal entry. He opened the hearing by stating:
"The issue before the Court is the journal entry and . . . the defense perceived as the Court did that the journal entry submitted by the State was rather summary.

"I would concede at the outset that the quotation of the State in regard to the factors listed for departure is accurate. The statutory factors were what the State listed and the only issue is whether or not those factors should be expanded, listing several other facts that c[a]me to the attention of the defense as well as the Court.

"So I'm seriously considering granting that motion."

Judge Dowd then asked for the State's comments. The prosecutor argued that the sentence was final at the time of pronouncement and that the portion of the transcript quoted in the State's response to the defense objection was accurate. He also corrected the judge, pointing out that the age of the defendant and his prior record were statutory departure factors under Jessica's Law, while the appropriateness of family support as a mitigator could only be based on case law. The prosecutor concluded:
"So I think it would be fair to say that the Court was not just listing the statutory factors but was listing the combination of statutory as well as case law basis.

"What we're left with in the record is what it is and the journal entry reflects the record as well as the minutes. I think it would be inappropriate or imprudent at this point in time for the Court to add bas[e]s for departure, essentially to enlarge the record. "It would be the State's position that doing so would ultimately be a--may, in fact, result in an illegal sentence and I don't think is--there's a basis--the ability--the authority for the Court to do so under law."

Defense counsel agreed that no expansion of the record was appropriate after the sentencing hearing but argued that the judge had already considered the additional factors sought to be listed in the journal entry. Judge Dowd ruled in favor of the defense, saying:

"Well, I think it's within the Court's discretion to supplement the record. In my judgment and my recollection, these factors . . . brought to our attention currently here

were part of the motion to depart. They were a significant part of the evidence and I think more importantly they were a very significant factor and had a very significant impact on me as far as making the decision that I made.

"So I think in the interest of a clearer and comprehensive record, that those factors should be added to the record and I will do so over the objection of the State.

"I will sign the journal entry submitted by [the State] and I will also sign the order submitted by the defense adding those factors and make a specific finding that those were a part of the motion, a part of the evidence and a part of the Court's ruling and a part of the Court's decision to depart."

Despite Judge Dowd's last statement, the written court order regarding the journal entry, filed the same day as the hearing on the objection, read in pertinent part:
"[T]he Court is not willing to sign the journal entry as proposed by the State. The Court would find that the following additional factors were considered by the Court in determining a departure was warranted: the degree of harm was significantly less than is typical as was evidenced by the mother of [A.S.], who requested leniency; the age, health and lack of prior record of the defendant; the support of family and friends; the fact that the defendant was and is the primary caretaker of his critically ill wife; and the fact that the defendant expressed remorse and claimed responsibility by not exercising his confrontational rights.

"In light of the Court's clarification of reasons for departure, the State is hereby ordered to prepare a journal entry reflecting the above findings."

No journal entry other than that originally proposed by the State appears in the record on appeal. It is signed by Judge Dowd, apparently on the same day as the hearing.

Since the State took its appeal, it has added to the record on appeal the victim impact statements and letters Judge Dowd evidently considered at sentencing. There are actually three victim impact statements: one written by the mother of the great-

granddaughter, which denied any lingering effects on the great-granddaughter; one by the granddaughter, composed on a form designed for children, in which she described experiencing continuing ill effects and favored sending Spencer to prison; and one written by the granddaughter's father, who asked that Spencer be given probation. The letters to which Judge Dowd made reference during the sentencing hearing are from family members and one ex-family member; most question Spencer's guilt rather than address appropriate sentence; many emphasize that he is the only family member available to care for his seriously ill wife.
ANALYSIS

Sameness of Findings Supporting Departures

Under the version of Jessica's Law in effect at the time of the 2007 crimes at issue here, a defendant who is 18 years old or older at the time he or she commits aggravated indecent liberties on a child younger than 14 ordinarily is subject to a Jessica's Law hard 25 sentence for a first offense. K.S.A. 21-4643(a)(1)(C). A sentencing judge may depart from that "mandatory minimum term of imprisonment" if the judge "finds substantial and compelling reasons, following a review of mitigating circumstances." K.S.A. 21-4643(d). The judge
"shall state on the record at the time of sentencing the substantial and compelling reasons for the departure. The departure sentence shall be the sentence pursuant to the sentencing guidelines act, K.S.A. 21-4701 et seq. . . . , and no sentence of a mandatory minimum term of imprisonment shall be imposed hereunder. [A]s used in [K.S.A. 21-4643(d)], mitigating circumstances shall include, but are not limited to, the following: (1) (2) The defendant has no significant history of prior criminal activity. The crime was committed while the defendant was under the influence of

extreme mental or emotional disturbances. (3) The victim was an accomplice in the crime committed by another person,

and the defendant's participation was relatively minor.

(4)

The defendant acted under extreme distress or under the substantial

domination of another person. (5) The capacity of the defendant to appreciate the criminality of the

defendant's conduct or to conform the defendant's conduct to the requirements of law was substantially impaired. (6) The age of the defendant at the time of the crime." K.S.A. 21-4643(d).

Once a "sentence becomes a guidelines sentence, the district court is free to depart from the sentencing grid if it states on the record findings of fact and reasons justifying a departure that are supported by evidence in the record and are substantial and compelling." State v. Gracey, 288 Kan. 252, 259, 200 P.3d 1275 (2009). K.S.A. 214716(a) provides that a sentencing judge shall impose the presumptive sentence under the sentencing guidelines "unless the judge finds substantial and compelling reasons to impose a departure"; if the judge chooses to depart, he or she "shall state on the record at the time of sentencing the substantial and compelling reasons for the departure." The nonexclusive list of statutory mitigating factors includes "[t]he degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense." K.S.A. 21-4716(c)(1)(E). The factors explicitly listed do not include the age of the defendant, his or her lack of a significant criminal history, or family support. K.S.A. 21-4716(c)(1)(A)-(E).

The State argues that Judge Dowd erred by using the same mitigating circumstances to justify both the departure from the Jessica's Law hard 25 to the sentencing guidelines and the dispositional departure from what the judge believed to be the guidelines' presumptive prison sentence of 155 months to 36 months' probation. This issue was specifically left open in the Gracey opinion, decided under the same version of Jessica's Law applicable in this case. See Gracey, 288 Kan. at 261. This argument was not made to Judge Dowd here, and the State's choice to raise the argument on this appeal might be viewed as a violation of its agreement to stand silent at sentencing. However,

Spencer does not raise these objections. We therefore will address the merits of the State's argument.

The State initially acknowledges that the applicable standard of review is that for statutory interpretation, which is de novo. See State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008). But it then proceeds to argue that one reason a sentencing judge should be required to differentiate between the mitigators justifying a departure from Jessica's Law and those justifying a dispositional departure from the default guidelines sentence is that the standard of review applied to one is different from that applied to the other. Citing State v. Ortega-Cadelan, 287 Kan. 157, Syl.

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