State v. Seibel

Beier, J.:

Paul A. Seibel appeals the district court’s imposition of an upward durational departure on his sentence for voluntary manslaughter. Following State v. Gould, 271 Kan. 394,23 P.3d 801 (2001), we reverse and remand for resentencing.

On July 31, 1998, Seibel and several others engaged in a party at a residence in Shawnee County, Kansas. All the participants were drinking heavily, including beer and hard liquor.

At some point an argument ensued between Seibel and the victim, Edgar Becker, regarding Becker drinking more than his share of the alcohol. After the initial altercation, Becker began vomiting. Seibel helped Becker to the bathroom to clean himself up. Becker then returned to the living room and lay down on the couch to sleep it off.

Exactly what happened next is unclear. Witnesses reported that Seibel began beating and kicking Becker and jumping on his chest. Witnesses reported that another member of the party, John Dority, assisted in the beating. After the beating, Seibel dragged the unconscious Becker out to the back porch where he lay for several hours. A neighbor noticed flies gathering around Becker and called 911. Becker was pronounced dead at the scene.

Seibel was charged with second-degree murder. He pleaded guilty to voluntaiy manslaughter and stipulated to the State’s evidence against him. The State requested the imposition of an upward departure, because Seibel knew the victim was in a vulnerable state at the time of the attack and the crime was committed with excessive brutality. The district court granted the State’s request, imposing the top range of the sentence, 64 months, plus an additional 12 months, for a total of 76 months in prison. Seibel timely appeals.

We conclude that the sentencing court’s findings of fact and reasons justifying a departure are supported by evidence in the record and constitute substantial and compelling reasons for departure as a matter of law. See K.S.A. 21-4721(d). However,

“[t]he notice and jury trial guarantees of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment require that a factual determination resulting in an increase in the maximum prison sentence for an offense beyond the sentence established in the appropriate grid box under K.S.A. 2000 Supp. 21-4704 be made by a jury beyond a reasonable doubt.” Gould, 271 Kan. 394, Syl. ¶ 2.

“An upward departure sentence imposed on a defendant by a judge under K.S.A. 2000 Supp. 21-4716 is a violation of the defendant’s Sixth Amendment rights and Fourteenth Amendment Due Process rights and, thus, is unconstitutional. The Kansas scheme for imposing upward departure sentences, embodied in K.S.A. 2000 Supp. 21-4716, is unconstitutional on its face.” Gould, 271 Kan. 394, Syl. ¶ 3.

The holding in Gould applies to this pending case. Accordingly Seibel must be resentenced in district court consistent with Gould.

Reversed and remanded for resentencing.