James M. Latta won in State v. Gibson, No. 120,657 (Kan. App. December 20, 2019), vacating an upward dispositional departure in a Geary County identity theft and perjury prosecution. Mr. Gibson fell into a presumptive probation category, but the district court imposed prison based on its finding that the Mr. Gibson's use of his brother's identification information resulted in his brother's arrest in another state, which it found to be greater than typical harm. The COA agreed that this factor was not an appropriate aggravating factor:
Our case fits the rule laid out in [State v. Favela, 259 Kan. 215, 911 P.2d 792 (1996)],and [State v. Martin, 279 Kan. 623, 112 P.3d 192 (2005)]. There's a statutory mitigating factor when "[t]he degree of harm or loss . . . was significantly less than typical." K.S.A. 2018 Supp. 21-6815(c)(1)(E). But there's no counterpart in the statutory aggravating factors for greater harm than normal. As our Supreme Court said in Martin, "Valid unlisted factors . . . do not have counterparts included in a statutory list." The district court's chosen factor—that the harm was greater than normal—has a counterpart in the statutory list. So the converse of the statutorily listed item, relied on here by the district court, is not a valid departure factor since it is not found in the statute.
Because the departure factor used was not appropriate, the COA reversed and remanded for resentencing.
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