What Is a Motion for Upward Dispositional Departure?
n Kansas, sentencing is typically governed by a sentencing grid, which considers the severity level of the offense and the defendant's criminal history to determine the presumptive sentence—a guideline suggesting the appropriate length of the sentence and whether it should be served in prison or on probation. However, the Kansas legislature recognizes that the grid may not account for every unique circumstance. To address exceptional cases, the court can impose departures from the presumptive sentence, which can either be downward (more lenient) or upward (more severe).
A motion for upward dispositional departure is filed when the State argues that, despite the sentencing grid recommending probation, the defendant should be sentenced to prison. These motions are based on the presence of substantial and compelling reasons that justify a harsher penalty.
The Sentencing Grid and Presumptive Sentences
Before diving into the specifics of upward dispositional departures, it's important to understand how the Kansas sentencing grid operates. The grid is a tool used to ensure consistency and fairness in sentencing across the state. It considers two primary factors:
The Severity Level of the Crime: Crimes in Kansas are classified by severity, ranging from level 1 (the most serious crimes, such as murder) to level 10 (less severe crimes, such as minor theft).
The Defendant’s Criminal History Score: This score is calculated based on the defendant's past criminal convictions. Defendants with no prior convictions will have a lower score, while those with a lengthy criminal history will have a higher score.
The intersection of these two factors on the grid gives a presumptive sentence, which is typically either probation or imprisonment. In some cases, probation is the recommended sentence, but the State can argue for a harsher penalty by filing a motion for an upward dispositional departure, asking the court to send the defendant to prison instead of probation.
When Does the State File a Motion for Upward Dispositional Departure?
The State will file a motion for upward dispositional departure when it believes that the circumstances of the case or the defendant’s actions warrant imprisonment, even though probation is the presumptive sentence. This usually occurs in cases where there are aggravating factors that go beyond the normal scope of the crime. These aggravating factors must be substantial and compelling, meaning they are not ordinary but significantly elevate the seriousness of the offense or the defendant's culpability.
Statutory Compelling Reasons for Upward Dispositional Departure
Kansas law provides several statutory reasons that can justify an upward dispositional departure. These reasons reflect situations where the crime’s impact, the defendant's conduct, or the characteristics of the victim are particularly severe or harmful. Below are some of the most common statutory reasons:
Vulnerable Victim: When a crime targets a particularly vulnerable victim, such as a child, elderly person, or someone with a disability, this can justify an upward departure. Vulnerability could stem from age, mental or physical impairments, or illness. For instance, in State v. Peterson, the court found that the defendant specifically targeted elderly victims because of their age, leading to a sentence of imprisonment rather than probation.
Excessive Harm Caused: If the crime results in more harm than is typical for the offense, the court may opt for a harsher sentence. This often applies in violent crimes where the defendant is excessively brutal, but it can also apply in non-violent crimes that cause significant damage to society. For example, in State v. Davis, the defendant’s possession of a large quantity of drugs was seen as causing substantial harm to society, justifying imprisonment despite the non-violent nature of the offense.
Hate Crimes: Crimes motivated by bias, such as those based on race, religion, ethnicity, or sexual orientation, are grounds for upward departure. In State v. Stawski, the defendant’s racially motivated threats to prevent a witness from testifying resulted in an enhanced sentence, even though the defendant did not explicitly mention race during the crime.
Violation of Fiduciary Relationship: If a defendant abuses a position of trust, such as that of a caregiver, family member, or employee, to commit a crime, the court may impose a harsher sentence. In State v. Smith, the defendant used his position as an employee to steal from his employer, violating the trust placed in him. The court found this breach of trust compelling enough to justify imprisonment.
Enticing a Minor to Commit a Crime: In cases where the defendant involves or encourages a minor to participate in criminal activity, the sentence may be enhanced. In State v. Martin, a defendant instructed her stepson to fire a gun at a house, leading the court to increase her sentence from probation to imprisonment.
Sexually Violent Crimes Committed by a Predatory Sex Offender: If a defendant is convicted of a sexually violent crime and has a prior conviction for a similar offense, they may be considered a predatory sex offender. In such cases, their sentence can be enhanced due to their history of sexually violent behavior.
Crimes Committed While Incarcerated: If a defendant commits a crime while already in custody, the court may see this as a compelling reason to impose a harsher sentence. This factor was introduced to address situations where crimes committed in prison might otherwise not result in additional punishment.
Organizing or Leading a Crime: If the defendant played a leadership role in organizing or orchestrating a crime that involved multiple participants, this could be grounds for an upward departure. The court may determine that the defendant’s role as a leader demonstrates a higher level of culpability.
Court-Decided Compelling Reasons for Upward Dispositional Departure
In addition to the statutory reasons, courts can also recognize compelling reasons based on the specific facts of the case. Some of these court-decided factors include:
Prior Crimes Committed While on Probation: A defendant with a history of violating probation can face a harsher sentence. In State v. Trimble, the defendant repeatedly violated probation, leading the court to determine that probation was not appropriate for the current offense, and imprisonment was necessary.
Repeated Offenses: If a defendant has a pattern of committing similar offenses, this can serve as a compelling reason for an upward departure. The court may determine that the defendant is unlikely to be rehabilitated through probation and that imprisonment is necessary to protect the public.
Defendant’s Lack of Remorse: In some cases, a court may consider the defendant’s attitude and lack of remorse as a factor in deciding to depart from the presumptive sentence. If the court finds that the defendant has not accepted responsibility for their actions, this can justify imprisonment over probation.
Legal Standard for Granting a Motion for Upward Dispositional Departure
For a motion for upward dispositional departure to be granted, the State must provide evidence that the circumstances of the case go beyond the typical nature of the crime. The court must find that the reasons presented are substantial and compelling enough to justify deviating from the sentencing grid's recommendation.
Substantial Reasons: These are reasons that are significant and not trivial. They must have a real impact on the nature of the crime or the harm caused.
Compelling Reasons: These are reasons that convince the court that the presumptive sentence is inadequate to address the seriousness of the offense.
Defending Against an Upward Dispositional Departure
Defendants facing an upward dispositional departure have options to counter the State’s motion. Some possible defenses include:
Challenging the Evidence: The defense can argue that the State has not met its burden of proving the aggravating factors. For example, if the State claims excessive harm, the defense can argue that the harm was not beyond what is typical for the crime.
Presenting Mitigating Factors: The defense can introduce evidence of mitigating factors, such as the defendant’s lack of prior criminal history, efforts at rehabilitation, or mental health issues. These factors can persuade the court that probation is a more appropriate sentence.
Filing for a Downward Departure: In some cases, the defense may file a motion for a downward dispositional departure, arguing that the circumstances of the case warrant leniency rather than a harsher sentence.
Conclusion
A motion for upward dispositional departure is a serious request by the State to impose a harsher sentence than the Kansas sentencing grid recommends. The State must present substantial and compelling reasons why the defendant should serve time in prison instead of receiving probation. Common reasons include the vulnerability of the victim, the defendant’s role in organizing the crime, or excessive harm caused. Defendants facing such motions should work closely with their attorneys to challenge the motion or present mitigating evidence that supports a more lenient sentence.