Acceptance of Responsibility Sufficient for Dispositional Departure

State v. Morley, No. 120, 017 (Kan. Ct. App. Aug. 16, 2019).

Issue: A district court may consider a defendant’s acceptance of responsibility as a mitigating factor to warrant dispositional departure if the court articulates that reason. Does the defendant’s accepting responsibility for his actions warrant a dispositional departure if the court fails to articulate that reason? 

Answer: No. At the time of sentencing, a court must state on the record the substantial and compelling reasons for the departure with competent supporting evidence.

Facts: Morley was indicted on twelve felony counts for securities fraud. Kansas investors lost $845,900. Before sentencing, Morley filed a motion for a dispositional sentence. At sentencing, the district court granted this motion, finding Morley’s acceptance of responsibility served as a non-statutory, mitigating factor that warranted the dispositional departure. Instead of serving 41 months in prison, Morley was placed on probation for 36 months, and ordered to pay $845,900 relying on Morley’s accepting responsibility for departing downward.  

Discussion: The court recognized that acceptance of responsibility can be a valid mitigating factor if the court expressly states on the record at the time of sentencing the substantial and compelling reasons for the departure.  The court must make factual findings as to the mitigating factors. The record must support the court’s findings. Mitigating factors include “the offenses of conviction, the defendant’s criminal history, the departure reason stated, and the purpose and principle of the [Kansas Sentencing Guidelines Act].” The Kansas Court of Appeals found the district court abused its discretion because there was “no substantial competent evidence to support” the defendant’s acceptance of responsibility as a mitigating factor.

Key Authorities: 

State v. Martin, 175 P.3d 832, 838 (Kan. 2008) (delineating factors courts should consider when making their departure determination).

Kan. Stat. Ann. 17-12a508(a)(5) (Supp. 2018) (presuming imprisonment for crimes that result in loss over $25,000).