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Embed code for: Memo in Support of Non Prison Sanction
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IN THE DISTRICT COURT OF DOUGLAS COUNTY, KANSAS
STATE OF KANSAS, )
) Case No. 2016 CR 359
vs. ) Division No. 5
RYAN P. M. CLARK, )
MEMORANDUM IN SUPPORT OF NON PRISON SANCTION
THE DEFENDANT, by and through his counsel, J.C. Gilroy, respectfully requests the Court to grant the Defendant a non-prison sanction as his sentence in this case. In support of this request the Defendant informs the Court as follows.
BACKGROUND OF THE CASE
The Defendant is before the Court for sentencing for his convictions of Aggravated Burglary, a Severity Level 5 person felony and two counts of Criminal Use of a Financial Card, both Class A misdemeanors. As evidenced by the Presentence Investigation report submitted in this case, the Defendant has a criminal history score of “H”, which is not in dispute by the Defendant. Thus, the Defendant falls into a border box category on the sentencing guidelines grid and is eligible for a non-prison sanction provided the Court makes appropriate findings as set forth by K.S.A. 21-6804 (f) and 21-6804(q). In addition, the Defendant believes that in addition to those findings, there are additional approved substantial and compelling reasons to sentence the Defendant to a non-prison sanction, as set forth below.
BORDER BOX FINDINGS
The Defendant meets the criteria under K.S. A. 21-6804(f) which provides the Court may impose an optional non prison sentence under K.S.A. 21-6804 (q) since his crime of conviction places him in the “5H’ grid block on the sentencing guidelines, Under subsection (q) of the statute the Court must make certain findings in order to impose such a sentence.
At the outset, the Defendant advises the Court that although his crimes of convictions were not drug offenses, nevertheless, the Defendant’s substance abuse issues were very much a contributing factor in the commission of these crimes. The Defendant has been very frank with defense counsel concerning the circumstances that were ongoing at the time these offenses were committed, including a serious drug usage problem, namely, methamphetamine. This was also noted in the substance abuse evaluation report prepared by Heartland Regional Alcohol and Drug Assessment Center (RADAC), in which the Defendant reported he had been using methamphetamine on a daily basis, sometimes in large quantities, with his last reported use on April 15, 2016, the day after these crimes were committed and the day of his arrest. The Defendant likewise has reported, and will likely advise the Court, that his drug use, and the need to continue his drug usage, was the primary reason(s) behind these crimes.
As noted above, the Defendant has undergone a drug assessment and believes he meets the statutory criteria for an optional non prison sanction. Specifically, the Defendant points out the assessment concludes, among other things, that he has a severe amphetamine-type substance use disorder. In addition, based on the assessment, the Defendant meets the clinical criteria for substance abuse treatment and it is recommended that he enter into substance abuse treatment. In addition, the assessment also includes a letter from the evaluator which indicates the Defendant is scheduled to be admitted into an inpatient treatment facility at Valeo, in Topeka, Kansas on November 8, 2016.
The Defendant believes that based on his assessment, the recommendations for inpatient treatment, including aftercare, and that a treatment program is available which he can enter into within a reasonable amount of time, the he meets the criteria for the Court to find the recommended treatment program in likely to be more effective than the presumptive prios term in reducing the risk of recidivism and will better serve community safety inter4est by promoting reformation.
ADDITIONAL FACTORS FOR A NON PRISON SANCTION
There are other factors the Court should consider in granting the Defendant a non-prison sanction. The Court should consider the Defendant’s limited criminal history. As evidence by the presentence investigation report, the Defendant has no prior felony convictions and all but one of his convictions are related to drug or alcohol issues, which only feed into his argument that it has been his drug and alcohol use that has brought him into the criminal justice system. Lack of prior convictions has been approved as a reason to grant a dispositional departure by the Kansas Supreme Court. See State v. Favela 259 Kan. 216 (1996), and State v. Murphy 270 Kan. 804 (2001). The Defendant again recognizes that this factor standing alone is not necessarily a substantial and compelling reason to grant a departure, however when combined with other factors in this case as set forth herein, the Defendant believes a non-prison sanction is more appropriate.
WHEREFORE, for the above stated reasons, the Defendant requests the Court to impose a non-prison sanction, to Order the Defendant to be placed on probation with an assignment to Community Corrections, and for such further relief as the Court deems appropriate.
/s/ J.C. Gilroy__________
J.C. Gilroy, #17870
1040 New Hampshire
Lawrence, Kansas 66044
Attorney for Defendant
4e additional approved substantial and compelling reasons to sentence the Defendant to a non-prison sanction, as set forth below.
There are other factors the Court should consider in granting the Defendant a non-prison sanction. The Court should consider the Defendant’s limited criminal history. As evidence by the presente