Saturday, October 17, 2015

Sufficient factors supported downward dispositional departure

Andy Vinduska won in State v. Lebeuf, No. 112,857 (Kan. App. Sept. 25, 2015)(unpublished), affirming Judge Bosch's downward dispositional departure sentence in a Clay County trafficking in contraband prosecution.  Judge Bosch found several mitigating factors:
(1) Lebeuf's age; (2) that Lebeuf had no recent history of violence; (3) that drug treatment would better protect society than a prison disposition; and (4) reasons "pretty much as stated by [Lebeuf's] attorney to the court." The factors argued by defense counsel were that the degree of harm was significantly less than typical, that Lebeuf had accepted responsibility for his conduct, and that Lebeuf was addicted to methamphetamine.
The COA agreed that the factors regarding age and degree of harm were not substantial and compelling reasons for departure in this case. But the COA affirmed the remaining findings:
As to the remaining factors relied upon by the district court to support a departure sentence, we find that those factors were supported by substantial competent evidence. The presentence investigation report supports the district court’s finding that Lebeuf had no recent history of violent crime. By pleading no contest, Lebeuf elected not to contest the charge and to accept a conviction. The drug and alcohol evaluation confirmed Lebeuf's addiction to methamphetamine and that there was a treatment program available to treat this addiction.
Since the district court found some proper factors supporting the departure, the COA held that the district court did not abuse its discretion by granting a dispositional departure.

[Update: the state did not file a PR and the mandate issued on October 30, 2015.]

No comments: