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Amount of Drugs a Factor for Departure Sentence in Kansas Prison Contraband Conviction

Amount of Drugs a Factor for Departure Sentence in Kansas Prison Contraband Conviction

by David M. Reutter

The Kansas Supreme Court reversed a prisoner’s sentence for possession of contraband – a small amount of marijuana – after it held the sentencing court misinterpreted its statutory authority by concluding it could not consider a downward departure to the presumptive criminal sentence.

Prisoner Waddell Warren was convicted of introducing a controlled substance into a correctional facility and sentenced to an additional 122 months in prison. At sentencing, he requested a departure sentence because the amount of marijuana found in his socks was very small. The district court ruled it could not consider a lesser sentence on that basis.

Warren appealed, and the Court of Appeals reversed in February 2012. See: Kansas v. Warren, 47 Kan. App. 2d 57, 270 P.3d 13 (Kan. Ct. App. 2012). The Kansas Supreme Court adopted the “well-written opinion” in that case as its own.

First, it helped that the appellate court had jurisdiction to hear the appeal. At the time Warren filed his appeal, Kansas law prohibited appellate courts from reviewing “any sentence that is within the presumptive sentence for the crime.” The effect of that statutory provision was to remove claims of prejudice, corrupt motive or an error involving a constitutional right from appellate review of a presumptive sentence. Since Warren’s appeal did not involve any of those issues but did involve the district court’s misinterpretation of its sentencing options, the appellate court had jurisdiction to hear his appeal.

As to the merits of the case, there was “no reason that the quantity of drugs may not be taken into account as a sentencing-departure factor, just as it may be in nonprison cases involving drug possession.” Thus, “possession of only a small quantity of drugs constitutes a valid factor upon which a departure sentence may be entered on a prison-contraband sentence.”Warren’s sentence was vacated and the case remanded for resentencing “so that the district court may properly exercise the discretion given to it by statute.” See: Kansas v. Warren, 297 Kan. 881, 304 P.3d 1288 (Kan. 2013).



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Kansas v. Warren


Kansas v. Warren