In the News

Sentencing guidelines no guarantee of prison

By Steve Fry
The Capital-Journal
July 01, 2007

Shawnee County District Court judges gave dozens of convicted felons -- including drug and sex offenders -- probation instead of prison in the past year, according to data from the Kansas Sentencing Commission.

Other offenders served sentences, but the lengths of their terms were reduced.

Nicholas Lee Crites received leniency in Shawnee County but not in Coffey County.

All were linked to a process called "departures" in the sentencing guidelines, the Kansas law dealing with how judges impose penalties.

But the sentencing departures have reasoning behind them, several judges said this past week, adding that the judges make difficult decisions, they follow Kansas law, and they are responsible and accountable for their rulings.

According to data from the Kansas Sentencing Commission, 66 cases tied to 59 defendants received departures, the bulk to penalties less than recommended by the guidelines. A few got tougher sentences than the guidelines recommend.

Information about the sentencing departures was obtained through a Kansas Open Records Act request filed by The Topeka Capital-Journal.

The 66 departures -- which account for 9 percent of the 735 sentencings in Shawnee County courts -- were made starting July 1, 2006, and ending in early May of this year, the latest date sentencing data in Shawnee County was available, said Helen Pedigo, executive director of the Kansas Sentencing Commission. Sentencing commission statistics are measured on a fiscal year starting July 1.

The 66 departures were made by seven of the county's 15 district judges, starting with the highest number of departures: Matthew Dowd, Jan Leuenberger, Thomas Conklin, Franklin Theis, Nancy Parrish, Evelyn Wilson and Richard Anderson.

Shawnee County District Court has eight other judges, but they handle civil cases and family law assignments.

Statewide, 17.9 percent of the sentences imposed by Kansas judges departed from Kansas sentencing guidelines during the fiscal year ending June 30, 2006, Pedigo said. Statistics for fiscal 2007, which ended Saturday, haven't been compiled.

The length of the sentences departed in 6.2 percent of the cases, and dispositional departures -- a change from incarceration to probation or vice versa -- were made in 11.7 percent of the cases, Pedigo said. Kansas judges used sentences within the guidelines in 82.1 percent of the cases.

District Judge Frank Yeoman, who handles family law cases, noted that Shawnee County judges imposed sentences recommended by the Kansas sentencing guidelines in 91 percent of the cases.

When sentenced, offenders who either had no criminal history, one misdemeanor conviction, two misdemeanor convictions or one nonperson felony conviction totaled nine.

But nine were "A" felons, meaning they had three or more person felony convictions each, the worst criminal history classification on the sentencing guidelines grid. Eighteen had "B" criminal histories (two person felony convictions), and 13 had "C" criminal histories (one person felony conviction).

Felons with "A," "B" and "C" criminal histories totaled 40, which was two-thirds of those defendants whose cases were departed. All but two among the 40 were downward departures to lower sentences. Nineteen of the defendants were sentenced to incarceration.

Person felonies include homicide, kidnapping, assault with a weapon, sexual assault and aggravated burglary.

Nonperson felonies include property crimes, perjury, obstructing the legal process, computer crime and criminal use of weapons.

After being placed on probation, two of the 66 departures later were tied to killings in Topeka.

Mark Cliver, 50, was fleeing from police when the stolen truck he was driving on June 11 struck a bridge support, killing him. Police were seeking him in the stabbing death of his neighbor, Frank Craig, 81, and the robbery of a drug store.

District Judge Leuenberger had departed down to probation rather than imprison Cliver for 40 months in a cocaine possession case. Leuenberger said he departed down on Cliver's case due to his age, the age of his prior four person felonies, the community wasn't at risk, and Cliver's rehabilitation would better serve the community than imprisoning him.

Timothy Abdul Kareem Shahid, 21, of Topeka, was arrested April 25 in connection with the shooting death of Joshua Lee Kalina, 20, in the parking lot outside Terry's Billiards Club, 3919 S.W. 21st. The district attorney's office hasn't decided whether to charge Shahid in the Kalina slaying, District Attorney Robert Hecht said.

Shahid, who had three felony convictions in state court, has been indicted in U.S. District Court on a firearms possession charge, according to court records. District Judge Wilson reduced Shahid's sentence on convictions for felony possession of a firearm and felony fleeing and eluding to probation because of his success in rehabilitation, court records said.

Another defendant, David Hixson Jr., 34, of Topeka, was placed on probation after he pleaded no contest to aggravated indecent liberties with a child. The victim was just days shy of her third birthday.

Hixson, who didn't have a prior criminal history, who admitted the incident and who was in treatment, was placed on probation by District Judge Conklin rather than being sentenced to 59 months in prison.

Child sex offenders

In June, news stories about Cliver and three sex offenders surfaced that focused public attention on sentencing departures in Shawnee County.

One of the three appears on the sentencing commission departures, Nicholas Lee Crites, a 28- year-old man from Topeka who pleaded no contest to aggravated indecent liberties with a child age 14 to 16. Dowd sentenced Crites to 59 months, then departed down to intensive supervised probation. Dowd noted that Crites didn't have a criminal record, was the sole support of two children and could receive treatment.

A Coffey County District Court judge decided otherwise when Crites appeared in his court for a charge of aggravated indecencies with a child for having sex with a different girl. Coffey County District Judge Phillip R. Fromme sentenced Crites to 55 months in prison, then Crites was transferred to the Kansas Department of Corrections to begin his sentence.

The names of Orlando Paul Cisneros, 38, of Topeka, and Federico Mendoza, 34, of Hutchinson, don't appear on the departure list and aren't included in the tally of downward departures imposed by Dowd. Mendoza was sentenced May 9, and Cisneros was sentenced May 25, both of this year. If they were, Dowd would have had 15 downward departures.

Jurors found Cisneros guilty of 17 counts of aggravated indecent liberties, criminal sodomy and rape, all tied to having sex with a 14-year-old girl in September and October 2006.

Dowd said he departed down on Cisneros' sentence because Cisneros had had "massive depression" at the time of his alleged crime but was being treated with medication and psychiatric therapy, he had a history of steady employment, he had a good chance of rehabilitation, and there was no permanent, severe damage to the victim.

Mendoza was convicted of electronic solicitation of what he thought was a 13- or 14-year-old girl for sex via the Internet. A downward departure resulted in probation rather than a sentence of 12 years and three months.

In departing, Dowd said the prison term would have been "excessive," given the circumstances of the case. Mendoza suffered bipolar disorder, and the judge said there wasn't harm to anyone in the case, and testimony from a psychiatrist was "very strong" that Mendoza wasn't a pedophile, wasn't susceptible to repeating that offense and that he wasn't attracted to children. Dowd said the harm to the community wasn't significant.

Why depart?

A judge must have discretion to impose just sentences in all cases, said Chris Joseph, a Topeka defense attorney who represented Mendoza.

Sentencing judgment goes both ways, Joseph said, because a judge must be able to depart upward when circumstances are "egregious."

Sentences in the guidelines cover typical cases, but judges will see cases that aren't typical, and they need to have leeway, he said.

A judge must have "some ability to impose the appropriate sentence if the sentence is not what the guidelines for the generic remedy proposed by the sentencing commission is," Joseph said.

Several times a year, a judge will see a case in which the circumstances are so out of the ordinary that punishing that person like the majority of defendants would be "fundamentally unfair and would be unjust," he said.

"The judge has to be able to have the discretion to impose the appropriate lesser punishment in those extraordinary cases," Joseph said.

For instance, defendant Stephen Grimmett, who pleaded no contest to aggravated criminal sodomy of a child younger than 14 in an attack on a 6-year-old neighbor, wouldn't re-offend if he received treatment in the community, but if imprisoned and not treated, he would re-offend, a Shawnee County District Court judge was told.

"What's the judge supposed to do? The best thing for the community," said Joseph, who defended Grimmett.

The judge sentenced Grimmett to nine years and nine months, then placed him on probation for that amount of time, Joseph said. Grimmett ultimately was charged in federal court, where he pleaded guilty in 2004 to making a pornographic movie using a 6-year-old boy and was sentenced to 10 years in prison.

"You can't always just look for retribution and punishment," Joseph said. "You have to do what's best for the community and the defendant."

Another example would be an otherwise law-abiding citizen who does an out-of-character act because of mental illness, Joseph said.

Michael Kaye, a Washburn University law school professor and director of the Washburn Law Center for Excellence in Advocacy, said departing in sentencing "is a highly structured exercise of judicial discretion. The departures are supposed to be rare."

Judge Anderson, one of the seven judges handling criminal cases, said every departure has a story behind it.

For instance, one man on the departure list was convicted of robbing a motorist of his pink Cadillac when the owner stopped at a store, parked the car with the engine running and went inside the business.

The robber jumped in the car, drove a block and parked the vehicle. Anderson received evidence the robber was mentally ill, departed downward on his sentence and ordered him admitted to a state mental hospital for treatment rather than imprisoning him where he wouldn't get the treatment he needed, the judge said.

Hecht agrees departures are justified — at times.

Departure should be an option for a first-time offender convicted of a nonviolent crime or when the defendant is convicted of a nonviolent crime at a young age and commits a second crime about 20 years later, Hecht said.

"Reasonable" considerations for the judge are the defendant's mental state, whether he or she has lost his job and whether there is an addiction problem, the district attorney said.

Departures shouldn't be available for offenders with two prior person felony convictions or a sex assault conviction, Hecht said.

Hecht testified last week at a Statehouse forum examining sentencing guidelines reform sponsored by Rep. Joe Patton, R-Topeka. The Kansas House committee is examining possible reform of the sentencing guidelines.

Judges aren't bound to follow the sentencing departure laid out in a plea agreement, Joseph said, but if they don't, why would the two sides enter into the pleas if judges repeatedly disregarded them?

If all cases went to the trial, "it would grind the system to a halt," Joseph said. "We would not have enough judges. We would not have enough prosecutors. We would not have enough jurors. The system couldn't function."

District Judge Yeoman agreed, adding that costs to the judicial system would go up.

"Plea bargaining is a bad word to some, but it's reality," Yeoman said. "It's essential in the criminal justice system."

Yeoman also noted most cases in which departures are sought are the result of plea agreements in which part of the pleas are that the prosecutors won't oppose the requests for downward departures.

Judicial flak

What impact has the departure controversy had on the judges?

Yeoman, a judge for 17 years, said there has been some name-calling, which isn't constructive, and, "Obviously, there's a lot of disagreement."

A judge gets an assignment, makes a decision and has to live with it, Yeoman said.

"We know we're going to be subject to criticism," he said, and judges are "always concerned" about the long-range impact of their decisions.

Judges handle thousands of cases in a career, but the public might disagree with one or two cases and want to throw out the judge "when the composite of his or her work is vastly favorable to the public and a lot of good has been done," Yeoman said.

District Judge David Bruns, who handles civil cases, acknowledged there were legitimate issues involving the sentencing guidelines and there may occasionally be specific cases that need to be addressed for the safety of the community.

"However, it is disappointing that there are a few who would use this as an opportunity to be critical of the entire judicial branch," Bruns said,