In Ninh, the state charged that the aggravated battery was committed in a "cruel and heinous" manner, justifying an upward durational departure. The COA reviewed a number of hard 40 cases dealing with "cruel and heinous" findings and held that the facts of the Ninh case might have supported a finding of "excessive brutality" but not "cruel and heinous." But because excessive brutality was not charged, it could not justify an upward durational departure:
[I]t is apparent that the evidence in this case does not support a finding that the crime was committed in a heinous, atrocious, or cruel manner. There was no evidence that Tran was chased by Ninh before being shot or that Tran's gunshot wounds took place over a lengthy period of time. There was no evidence that Ninh tortured Tran before shooting her. The evidence shows that Ninh shot Tran multiple times in her legs during an argument. After shooting Tran, Ninh told her that he had done a bad thing and threatened to kill himself. Tran talked Ninh out of killing himself. Ninh then brought Tran a phone to call for help. As a result of the shooting, Tran suffered extensive injuries which required multiple surgeries and a lengthy rehabilitation. When the hearing occurred, Tran was unable to walk unaided and was taking pain medication and sleeping pills. Although it is clear that Tran suffered great harm as a result of the shooting, the evidence is not sufficient to find that the crime was committed in a heinous, atrocious, or cruel manner.We have seen a trickle of these upward durational departure cases, post-Gould, mostly out of Johnson County. I have one currently before the KSC. There are a lot of procedural issues in cases dealing with the Gould fix. I've seen a couple of cases were "nonamenability to probation" has been used to impose an upward durational departure. I think this issue and others are fraught with constitutional problems. None of those were apparently raised in Ninh, but they are out there.
[Update: the state filed a petition for review on November 13, 2006]
[Further update: the KSC denied the petition for review and the mandate issued on February 15, 2007]