Victim request for leniency can be part of departure analysis

Peter Maharry and Patrick H. Dunn won in State v. Bliss, No. 120,134 (Kan. App. September 24, 2021), obtaining reversal of one count in a multi-count Sedgwick County domestic violence prosecution. The state charged Mr. Bliss with two alternative counts of aggravated kidnapping. The jury returned a guilty verdict for both counts. Then the district court entered judgments of conviction on both counts as independent charges and imposed concurrent sentences of 84 months’ imprisonment with the sentence on one count held in abeyance.

On appeal, Mr. Bliss argued the state presented insufficient evidence to convict him on the first count of aggravated kidnapping. The state conceded the evidence was insufficient to support that conviction. However, the COA considered an "additional and fundamental error" with that conviction: “Because Bliss was charged with the two counts of aggravated kidnapping in the alternative, he could not be convicted and sentenced on both charges.”

The COA cited State v. Vargas, 313 Kan. 866, 867, 492 P.3d 412 (2021) noting that when jury verdicts are returned and entered for both alternative charges, the verdicts are merged as a matter of law resulting in only one conviction and sentence. The COA resolved both Mr. Bliss’s challenge to the sufficiency of the evidence in the first count and the conviction’s fundamental error:

We thus remand this case to the district court with directions to enter an amended journal entry correctly reflecting that Bliss’ conviction on Count 4 has merged into his conviction for aggravated kidnapping and a single 84-month sentence, effectively reversing one of his convictions for that offense and vacating one of his sentences.

The state had also appealed a durational departure granted in this case. The presumptive sentencing range was 203 to 226 months. The district court granted a durational departure to 84-months, relying on the victim's request for leniency and finding that Mr. Bliss did not have a history of committing violent crimes. The COA affirmed:

The State attempts to sidestep these weighty considerations, arguing that—under the first step in our analysis—the district court erred as a matter of law when it 42 considered M.B.'s request for leniency as a potential reason to depart. The State argues, based on the Kansas Supreme Court's decision in Hines, that a victim's request for leniency should never serve as a substantial or compelling reason to depart from a presumptive sentence in a case involving domestic violence. We do not read Hines so broadly.

. . . .

The State also asserts that the absence of violent criminal convictions can never justify a departure because a defendant's criminal history score already accounts for prior convictions. It is true that a district court may not justify a departure solely based on a criminal history score or factors the Sentencing Guidelines already have taken into account, such as "the difference in character between a defendant's past offenses and the present offense." But a court may consider a defendant's lack of violent history, in conjunction with other potentially mitigating factors, to determine whether the reasons given "'when considered as a whole, constitute substantial and compelling circumstances justifying departure.'"

Because the COA held that the district court's bases for departure were proper, it affirmed the durational departure.

[Update: the KSC denied both the state's and Mr. Bliss' petitions for review on February 1, 2022 and the mandate issued on May 5, 2022].