## Facts

- Danny L. Heath and Kord Cole, friends and co-workers, drank at a tavern after work and drove home together.
- Heath swerved to avoid roadway debris, slid into a utility pole, and Cole (a passenger) was killed.
- Heath’s blood alcohol concentration measured 0.151%.
- Heath pleaded no contest to involuntary manslaughter under K.S.A. 1993 Supp. 21-3404 (severity level 5 person felony).
- Under the Kansas Sentencing Guidelines, with criminal history category D, the presumptive sentence was imprisonment for 50–55 months (presumptive prison).
- Heath sought a downward dispositional departure to probation; his criminal history included juvenile felony adjudications, multiple misdemeanor marijuana convictions, and a misdemeanor for driving while suspended.
- The victim’s family supported Heath at sentencing, stating incarceration was unnecessary, emphasizing lack of intent, Heath’s remorse, and his claimed cessation of drinking.
- The district court imposed a 50-month sentence but granted a dispositional departure to 60 months of probation with community-corrections supervision, citing the victim’s parents’ statements, lack of intent-to-injure, and limited relevance of juvenile history.

## Issues

1. Whether the stated mitigating reasons, including the victim’s parents’ sentencing testimony and the non-intentional nature of involuntary manslaughter, constituted “substantial and compelling reasons” for a downward dispositional departure from presumptive imprisonment under the Kansas Sentencing Guidelines.
2. What constitutes “substantial and compelling reasons” for departure and the proper scope of appellate review of a dispositional departure under K.S.A. 21-4716.

## Decision

- The Kansas Court of Appeals affirmed the downward dispositional departure.
- The court held the district court identified legally sufficient, record-supported reasons that could be found “substantial and compelling.”
- The court concluded the district court did not abuse its discretion by ordering probation rather than presumptive imprisonment.

## Legal Principles

- Under K.S.A. 21-4716, a departure from a presumptive guidelines sentence requires “substantial and compelling reasons.”
- Appellate review considers (1) whether the departure reasons are legally sufficient and (2) whether the sentencing court abused its discretion; an appellate court does not reweigh the case simply because it would have imposed a different sentence.
- A sentencing court’s general disagreement with the Kansas Sentencing Guidelines or belief that the legislature misclassified an offense is not a substantial and compelling reason for departure.
- Mitigating circumstances may include factors not expressly listed, if consistent with legislative intent and supported by the record.
- A victim’s family’s wishes are not controlling but may be considered as part of the overall circumstances when tied to other case-specific mitigating facts.

## Conclusion

The court upheld probation as a downward dispositional departure because the sentencing record supported a combination of mitigating considerations—lack of intent to injure inherent in the offense, a close relationship between defendant and victim, credible remorse and behavior change, limited relevance of prior juvenile history, and the victim’s family’s supportive testimony—that the district court could reasonably view as substantial and compelling.


State v. Heath, 21 Kan. App. 2d 410, 901 P.2d 29 (Kan. Ct. App. 1995)