Clayton J. Perkins won in State v. Atkisson, No. 115,468 (Kan. August 24, 2018), obtaining a remand for resentencing in a Anderson Count rape prosecution. Mr. Atkisson had pleaded guilty in exchange for a recommendation for a departure from the grid. The district court rejected the joint recommendation and imposed a hard-25 sentence, which was reversed on a first appeal pursuant to State v. Jolly (blogged about here). At resentencing, the district court again rejected the downward departure from the grid, citing other incidents it gleaned from the probable cause affidavit and finding that mitigating circumstances did not justify a departure. The KSC acknowledged that a district court judge must consider all of the facts of the case, even if it cannot weigh aggravating factors against mitigating factors. As such the KSC held that the district court's consideration of the age difference, multiple instances of abuse in multiple counties, and abuse of a position of trust were all properly considered in determining sentence. But the KSC went on to hold that the district court abused its discretion by making those determinations based on a probable cause affidavit and other unsworn statements that had not been stipulated as the factual basis in the case:
The State did not try to have the probable cause affidavit admitted into evidence for sentencing purposes. The district court also referenced Atkisson's position of trust in the victim's life, but that notion appears to be supported only by the father's unsworn statement at the sentencing hearing. And the State did not call the victim's father as a witness under oath at the sentencing hearing, subject to cross-examination, to establish how Atkisson committed the offense.
Because the district court relied on facts that were not properly part of the record, the KSC held that it abused its discretion and remanded for resentencing, including reconsideration of the departure motion.
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