State v. Crawford

Abbott, J.,

concurring and dissenting: I concur in the result reached, but dissent from the syllabus and corresponding part of the opinion.

The legislature intended individualized treatment of an offender. Even a cursory reading of K.S.A. 21-4601 and K.S.A. 21-4606 reveals that sentencing involves more than considering the needs of the defendant. Of great concern to the legislature was the welfare and the protection of the general public. K.S.A. 21-4601 admonishes the trial court “that dangerous offenders shall be correctively treated in custody for long terms as needed.” K.S.A. 21-4606 lists seven factors the court is to consider in fixing the minimum term of imprisonment, none of which appears to be helpful to the defendant.

Here, the trial judge, in sentencing the defendant, knew that three days earlier the defendant had pled guilty to aggravated burglary, aggravated battery, and two counts of aggravated robbery. The trial judge also knew that in the earlier case, a presentence report had been prepared and the trial judge had given a minimum controlling sentence of 30 years.

The defendant pled guilty in this case; to seven additional felonies, committed on two dates different from the date the defendant committed the prior felonies for which he received the minimum controlling sentence of 30 years. All seven felonies involved great personal risk to the victim (rape, aggravated burglary, aggravated robbery [two counts on different dates], and aggravated battery).

In my opinion, the trial judge in this case did not fail to carry out his sentencing duties. The trial judge’s information was sufficient to support the minimum controlling sentence imposed. I would affirm on the premise that if a record indicates a defendant committed a total of 11 felonies of the nature committed in this case on 3 different days, the record itself provides the basis for finding the trial judge did not abuse his discretion in setting a controlling minimum sentence of 30 years.

The critical issue in this case is whether the trial court abused its discretion by not including a discussion of the statutory factors in the record.

The public’s interest in sentencing is such that I would not allow a trial judge to nullify the mandates of K.S.A. 21-4601 and 21-4606 as a result of any wishes and actions taken by the defendant or by counsel. The trial judge is not bound by any plea agreement between the prosecutor and the State. The trial judge has a duty, independent of any agreement the accused makes, to impose an appropriate sentence. I cannot agree to the principles expressed in the syllabus to this opinion because the trial court would not be protecting the public interest and welfare if the court does not make an independent determination of the minimum controlling sentence after considering the offender’s and public’s interest as expressed in K.S.A. 21-4601 and 21-4606. A defendant should not be allowed to waive the trial judge’s duties in setting a minimum sentence.