The manner in which a crime is committed and the circumstances inherent in the crime are not inevitably limited to the strict legal elements of the offense. But where, as here, the district judge explicitly referred to the piece of evidence that persuaded him as an "aggravating factor," we cannot be wholly confident that the statutory command not to conduct weighing of aggravators and mitigators was followed. As we said in Jolly, the sentencing judge may consider the manner in which a crime is committed and the circumstances inherent in the crime, as well as whether mitigators that are substantial and compelling justify a departure from Jessica's Law. But the judge may not weigh aggravators and mitigators. That is exactly what the judge himself said he was doing in this case.As a result, the case was remanded for resentencing using the correct standard.
Saturday, October 01, 2016
Christina M. Kerls won in State v. McCormick, No. 109,985 (Kan. Sept. 9, 2016), obtaining a new sentencing hearing in a Sumner County rape prosecution. The KSC affirmed Mr. McCormick's convictions, but remanded for resentencing because the district court improperly considered aggravating factors when determining whether to grant a departure in the case. The KSC applied a recent case (blogged about here) and held that the district court applied the wrong standard: