Courts Don’t Have to Explain Denials of Downward Departures

State v. Powell, No. 115,457 (Kan. Aug. 24, 2018).

Issue: Jessica’s law imposes specific sentences for sex crimes against minors. The court may lessen the sentence if it finds substantial and compelling reasons to do so. However, it cannot weigh aggravating factors against the reasons for a downward departure from the presumptive or mandatory sentence. If the court hears aggravating factors during the sentencing hearing, must it explain its decision-making to show that it didn’t weigh aggravating factors?

Answer: No. So long as the court does not explicitly say that it will weigh aggravating factors against the reasons for departure, or suggest that some aggravating fact makes a departure less likely, the court does not abuse its discretion.

Facts: Powell pled guilty to aggravated indecent liberties with his minor daughter. He moved for a downward departure from the presumptive sentence. During the sentencing hearing, Powell’s expert concluded that he should get a departure. The state then presented evidence that Powell had abused other children in the past.

The judge denied the departure, saying that “after considering all of the information presented today, the Court cannot find substantial and compelling reasons to depart from the presumed sentence.”

Because the judge said he considered all the information—not just the reasons for departure—and because he did not explain what factors he weighed in his decision, Powell appealed. Powell argued the court abused its discretion by considering factors not permitted under the law.

Discussion: When departing from a Jessica’s Law sentence, the court must explicitly state on the record the reasons for the departure. If the court denies the defendant’s motion to depart, no explanation is needed.

While the court cannot weigh aggravating factors against reasons for departure, it can still consider aggravating factors to a certain extent. For example, the court can consider the “facts of the case”—that is, how the defendant carried out the offense—even if those facts reflect poorly on the defendant. The court has broad discretion here—other unproved violations might be “facts of the case,” insofar as they show that the charged crime was not an isolated incident. The court can also consider evidence that tends to rebut the defendant’s evidence supporting departure.

Key Authorities: 

Jessica’s Law,  K.S.A. 2017 Supp. 21-6627(d)(1) (providing mandatory and presumptive penalties for sex crimes against minors).

State v. Jolly, 301 Kan. 313 (2015) (holding that Jessica’s Law does not permit a court to weigh aggravating factors against reasons for downward departure).