# State v. Gould > Supreme Court of Kansas · May 25, 2001 · 271 Kan. 394 URL: https://www.frixlaw.com/law-library/cases/9786284 ## Case - **Full name:** State of Kansas, Appellee, v. Crystal D. Gould, Appellant - **Court:** Supreme Court of Kansas - **Decided:** May 25, 2001 - **Citations:** 271 Kan. 394; 23 P.3d 801; 2001 Kan. LEXIS 381; 2001 WL 557972 - **Precedential status:** Published - **Opinion:** Dissent by Abbott - **Judges:** Six, Abbott, Davis - **Cited by:** 195 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9786284 ## How later opinions describe it (automated extraction) - holding Kansas’s statutory “scheme for imposing upward departure sentences ... unconstitutional on its face,” when defendant “received a sentence beyond the statutory maximum based upon a court finding of certain aggravating factors found by a preponderance of the evidence” - concluding Apprendi requires "any fact that increases the penalty of a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt” - holding Kansas' sentencing statutes permitting upward departure sentences based on judge's finding of one or more aggravating factors by a preponderance of the evidence is unconstitutional on its face under Apprendi - holding that the new constitutional sentencing rule established by Apprendi 4 must be applied to all cases "which arose after June 26, 2000" - holding the upward durational departure procedure under K.S.A. 21-4716 [repealed and replaced by K.S.A. 2019 Supp. 21-6815] was unconstitutional because it violated due process ## Opinion text Abbott, J., dissenting: I find the Apprendi decision disturbing. It appears it is going to have a considerable impact on the judicial system in many areas and particularly on sentencing guidelines. I recognize that the legislature can play games with sentencing guidelines and amend them so that Apprendi would not apply to most sentences. I am troubled by other matters, although I recognize that they probably do not fall under Apprendi. For instance, cases frequently come before us where, if the defendant is tried as a juvenile, the most he or she will have to serve is a few years. If, on the other hand, the defendant is tried as an adult for the same offenses, he or she may face up to 100 years. We have other areas of the law in which similar results are reached, and although they do not fall under Apprendi, they seem fundamentally unfair in light of Ap- I would affirm this decision under the harmless error rule. I would even consider affirming it on the basis that the sentencing guidelines maximum sentence was not exceeded in this case. An “upward departure” simply allows the trial court to use a statutory *415 maximum that the defendant can receive. Recently, in State v. Conley, 270 Kan. 18, 34-35 , 11 P.3d 1147 (2000), cert. denied 532 U.S. 933 (2001), we held anything given in the “upward departure,” where the sentence is life, does not violate Apprendi. Here, the defendant did not receive more than the guidelines authorized. She merely received more than the standard sentence because certain sentencing factors were present. Plere, a fiduciary relationship existed. K.S.A. 2000 Supp. 21-4716(b)(2)(D); State v. Ippert, 268 Kan. 254 , 995 P.2d 858 (2000). Gould recognizes that facts that do not increase a defendant’s punishment beyond that authorized by the underlying statute need not be proven to a jury beyond a reasonable doubt, citing McMillan v. Pennsylvania, 477 U.S. 79, 88 , 91 L. Ed. 2d 67 , 106 S. Ct. 2411 (1986). See also Conley, 270 Kan. at 35-36 (finding that the K.S.A. 21-4638 hard 40 sentencing scheme is constitutional). One of the factors relied upon by the sentencing court in granting the upward departure was the fact that the defendant had a fiduciary relationship with the victims. The jury was presented with overwhelming evidence that Gould, the mother of the victims, had a fiduciary relationship with S.G., D.G., and L.G. We have defined “fiduciary relationship” as follows: “The term ‘fiduciary relationship’ refers to any relationship of blood, business, friendship, or association in which one of the parties places special trust and confidence in the other. It exists in cases where there has been a special confidence placed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interest of die one placing the confidence. A fiduciary has the duty to act in good faith and with due regard to the interests of die party placing confidence in the fiduciary.” Hawkinson v. Bennett, 265 Kan. 564 , Syl. ¶ 4, 962 P.2d 445 (1998). Not only was Gould the victims’ mother, but she was also a primary caregiver to the victims. Thus, any error was harmless because it is clear beyond a reasonable doubt that a rational jury would have found that a fiduciary relationship existed. I would affirm the decision in this case on the basis that even if the majority is correct, the mistake is harmless beyond a reasonable doubt. Davis, J., joins in the foregoing dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9786284. Public record. Not legal advice.