Opinion
Nos. 105,634 105,635 105,636.
2012-09-7
STATE of Kansas, Appellee, v. Duncan Lee ELLIS, Appellant.
Appeal from Montgomery District Court; Gary R. House, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Ruth A. Ritthaler, assistant county attorney, Larry Markle, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Montgomery District Court; Gary R. House, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Ruth A. Ritthaler, assistant county attorney, Larry Markle, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Duncan Lee Ellis appeals the sentences imposed in three district court cases: 2010 CR 157, 2010 CR 159, and 2010 CR 160. These cases were consolidated on appeal, but Ellis briefs only the sentence imposed in 2010 CR 157. He contends the district court erred in this case by departing upward from the presumptive sentence of probation to imprisonment. We affirm the sentence, however, we remand with directions to correct an error in the journal entry of judgment.
Factual and Procedural Background
Ellis' conviction in 2010 CR 157 was for attempted aggravated burglary. His convictions in 2010 CR 159 and 2010 CR 160 were for nonresidential burglary. Ellis committed all three crimes in April 2010.
Prior to sentencing on the same date in all three cases, a presentence investigation report (PSI) was prepared. According to the PSI, the sentences in 2010 CR 159 and 2010 CR 160 were presumptive imprisonment due to the special rule at K.S.A.2009 Supp. 21–4704(p). This rule applied to burglary convictions when a defendant had two or more prior convictions for theft, burglary, or aggravated burglary. See K.S.A. 21–3701; K.S.A. 21–3715; K.S.A. 21–3716. The PSI also applied this special rule to 2010 CR 157, which meant that Ellis faced a presumptive prison sentence in that case as well. This special rule should not have applied, however, to the attempted aggravated burglary conviction in 2010 CR 157. See K.S.A.2009 Supp. 21–4704(p). Because the attempted aggravated burglary conviction was a severity level 7 crime and Ellis had a criminal history score of E, his guidelines sentence in 2010 CR 157 was, in fact, presumptive probation. See K.S.A. 21–3301(c); K.S.A. 21–3716; K.S.A.2009 Supp. 21–4704.
After Ellis' counsel objected to the PSI error in 2010 CR 157, the district court filed a notice of its intent to impose an upward dispositional departure in that case. The district court stated that the attempted aggravated burglary in 2010 CR 157—where Ellis was shot by a homeowner defending his home—was “the more serious offense” compared to the nonresidential burglaries in 2010 CR 159 and 2010 CR 160. The district court suggested that “[t]o grant presumptive probation in this more serious case and presumptive imprisonment in the other cases is impractical.” As an additional reason for the upward departure, the district court stated that Ellis' extensive criminal history showed he was “not amenable to probation.”
Of note, Ellis was on bond awaiting sentencing in the three cases when he was arrested for tampering with his electronic monitoring equipment. He was ultimately convicted of an attempt to unlawfully tamper with the equipment. The district court eventually imposed a prison sentence in that case consecutive to the sentences at issue here.
Ellis moved for a downward dispositional departure to probation in 2010 CR 159 and 2010 CR 160. He also opposed the district court's notice of intent to impose an upward dispositional departure to imprisonment in 2010 CR 157. At sentencing, Ellis presented testimony from his pastor, employer, sister, and girlfriend. The district court acknowledged this testimony but emphasized Ellis' criminal history:
“[O]ver a period of 29 years ... which includes three drug offenses, two of which were felonies, 16 traffic offenses including 10 driving while suspended or without a license, one driving while a habitual violator and two DUIs, three worthless check or forgery cases, seven cases of obstruction of legal process or disorderly conduct and 10 cases involving property, four burglary cases, three of which happened this year, three theft cases and two criminal trespass cases. Those are also compelling and substantial reasons not to depart as [Ellis] has asked.”
The district court also noted that the victim in 2010 CR 157 stated “that he was afraid of [Ellis] still and was afraid of him the night of the attempted aggravated burglary and had to use a firearm ... to defend himself and his property.” The district court identified this as another reason not to depart downward to probation in 2010 CR 159 and 2010 CR 160.
With regard to the district court's notice of intent to depart in 2010 CR 157, the judge reiterated, [I]t's really impractical to have probation in one case and then sentence to prison in the other two cases. Additionally, the district court discussed Ellis' criminal history in light of his characteristics, specifically, whether Ellis could “respond best to supervised control within the community” without putting the public in danger. The district court observed:
“Mr. Ellis has ... committed 39 offenses for which he's been convicted since 1981 and 24 of those cases have come since the year 2000, and we're getting down to the serious ones now, the three that were committed earlier this year and the danger in burglaries is always that there may be some—the property owner or his family may be there and in this case—in one case—property owner was there, and he used a firearm and that's what made it a person felony .”
The district judge concluded that “in the past Mr. Ellis has proven himself not to be amenable to probation and that is a substantial and compelling reason for me to grant an upward departure to presumptive prison in Case No. [2010 CR] 157.” These findings were not repeated in the journal entry of judgment, however, which erroneously shows Ellis' sentence in 2010 CR 157 as presumptive imprisonment due to the special rule at K.S.A.2009 Supp. 21–4704(p). In short, the journal entry of judgment repeats the mistake of the PSI.
Ultimately, the district court imposed concurrent prison sentences of 27 months in both 2010 CR 159 and 2010 CR 160. The district court imposed a prison sentence of 21 months in 2010 CR 157. This sentence, however, was to run consecutively to the other two concurrent sentences. Ellis appeals.
Upward Dispositional Departure
On appeal, Ellis challenges the two reasons given by the district court for imposing an upward dispositional departure sentence in 2010 CR 157. We will separately address each of the two reasons. Impractical
Ellis contends the district court erred in finding that it was impractical for him to serve probation after serving his prison sentences in the two other cases as a basis for the upward dispositional departure in 2010 CR 157.
On appeal, our review is limited to whether the sentencing court's findings of fact and reasons justifying a departure: (1) Are supported by the evidence in the record; and (2) constitute substantial and compelling reasons for departure. K.S.A.2011 Supp. 21–6820(d). The first question is reviewed for substantial competent evidence. State v. Spencer, 291 Kan. 796, 807, 248 P.3d 256 (2011). The second question is reviewed for abuse of discretion, but when the question is “whether a particular mitigating or aggravating factor can ever, as a matter of law, be substantial and compelling in any case, the appellate standard of review is de novo.” 291 Kan, at 807.
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594(2012).
The district court's statement that presumptive probation in 2010 CR 157 was “impractical” due to the presumptive prison sentences in 2010 CR 159 and 2010 CR 160 appears to have been based on State v. Benoit, 31 Kan.App.2d 591, 593, 97 P.3d 497 (2003), which the State cites on appeal.
In Benoit, the defendant was sentenced in two cases—one presumptive probation, the other presumptive prison—on the same day. The district court departed in the presumptive probation case to imprisonment, imposed the presumptive prison sentence in the other case, and ran the sentences concurrently. The district court reasoned that “it was impractical and unworkable to place [the defendant] on probation ... at the same time he is being imprisoned in the other case, thus making [the defendant] not amenable to probation.” (Emphasis added.) 31 Kan.App.2d at 593.
This court affirmed the district court's sentencing, which made sense because the sentences were run concurrently. 31 Kan.App.2d at 596. But the Benoit panel also made the statement which was the apparent model for the district court's observation in the present case: “[I]t would be most impractical for [the defendant] to serve prison time and probation either concurrently or consecutively.” (Emphasis added.) 31 Kan.App.2d at 593.
It is unclear why a defendant could not serve a prison sentence and then serve a term of probation consecutively, i.e., after release from prison. In State v. McDaniel, 20 Kan.App.2d 883, 885, 893 P.2d 290 (1995), this court stated: “Probation is not inherently inconsistent with consecutive sentences.” For example, in State v. Torkelson, 29 Kan.App.2d 672, 673–75, 30 P.3d 320 (2001), this court quoted McDaniel while remanding with directions to enter a sentence of probation in one case to be served consecutively to a prison sentence in another.
Subsequent cases have distinguished Benoit. In State v. Patton, No. 93,474, 2006 WL 1976512, (Kan.App.2006) (unpublished opinion), which Ellis cites on the present appeal, a district court departed from presumptive probation to imprisonment because the defendant was sentenced to prison in another case. This court distinguished Benoit in part because Benoit had “involved concurrent sentences; here [in Patton ] we are dealing with consecutive sentences.” 2006 WL 1976512, at *5.
In State v. Smith, No. 94,454, 2006 WL 3257447 at *1 (Kan.App .2006) (unpublished opinion), the district court granted a downward dispositional departure to probation but ordered jail time for misdemeanor convictions, “all to run consecutively.” The defendant argued on appeal that the sentences were “inappropriate” within a single case. 2006 WL 3257447, at *2. This court first distinguished Benoit on the same point noted in Patton, that the sentences in Benoit were concurrent. 2006 WL 3257447, at *4. It added that Benoit was not concerned with whether the sentences were appropriate but whether the sentence in one case provided a substantial and compelling reason to depart in another. 2006 WL 3257447, at *4.
In State v. Peters, No. 94,913, 2007 WL 1747869 (Kan.App.2007) (unpublished opinion), a defendant was sentenced in one case for three crimes. The district court departed upward from probation to prison on the primary offense because the defendant was receiving jail time on the two remaining offenses. The district court reasoned that “probation would be unworkable” even though the sentences were run consecutively. 2007 WL 1747869, at *4.
The defendant in Peters argued on appeal that the district court's reason “was neither substantial nor compelling because he could have served probation consecutive to his jail sentences just as easily as serving the three consecutive prison and jail terms.” 2007 WL 1747869, at *4. This court vacated the sentence and remanded for resentencing;
“[T]he sentences were ordered to run consecutively, not concurrently like the sentences in Benoit. The facts in Benoit and its distinguishing cases indicate that a defendant is not amenable to probation if the sentences were imposed on the same day for separate cases, and the sentences were ordered to run concurrently, not consecutively. The unworkable arrangement of facts in Benoit are not present here because probation could have worked here subsequent to his county jail sentences.” 2007 WL 1747869, at *4.
Finally, in State v. Cunningham, No. 101,282, 2010 WL 3211551 (Kan.App.2010) (unpublished opinion), a district court relied on Benoit when departing from probation to prison in one case and running the sentence consecutively to a prison sentence in another case. This court stated:
“Cases before and since Benoit recognize that the mere fact that a defendant has been ordered to serve consecutive sentences does not constitute a substantial and compelling reason to depart from presumptive probation. In other words, it is entirely possible for a defendant to serve a prison term in one case, followed by a term of presumptive probation in the other case to be served upon completion of the prison term.” 2010 WL 3211551, at *2.
This court vacated the sentence and remanded because the district court's “articulated reasons do not justify [the] departure sentence.” 2010 WL 3211551, at *4.
The reference to “articulated reasons” is noteworthy. Under K.S.A. 21–4716(a), “the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.” And under K.S.A. 21–4718(a)(4), “the court shall make findings of fact as to the reasons for departure.” Hence an “appellate court reviewing a sentencing court's reasons for departure will not conduct a broader search of the record to examine all facts available to the sentencing court to determine whether there were substantial and compelling reasons for departure other than those relied upon by the sentencing court.” State v. Blackmon, 285 Kan. 719, Syl. ¶ 5, 176 P.3d 160 (2008).
Under the circumstances of the present case, where the sentence at issue was run consecutively to the other two sentences of imprisonment, the district court's rationale that it would be “impractical” to not order an upward dispositional departure in this case was an incorrect understanding of the law. By applying an incorrect legal standard in this regard, the district court abused its discretion. See Ward, 292 Kan. at 550.
Amenability to Probation
Next, Ellis argues that the second reason the district court ordered an upward dispositional departure—that he was not amenable to probation—was an improper use of his criminal history.
In support of his argument, Ellis cites State v. Richardson, 20 Kan.App.2d 932, 941, 901 P.2d 1 (1995), which held “a defendant's criminal history cannot be used as justification for a departure sentence when the sentencing guidelines have already taken the defendant's criminal history into account in determining the presumptive sentence within the grid.” But Richardson went on state that the sentencing court remains free to consider factors that a defendant's criminal history does not take into account. 20 Kan.App.2d at 941. So in Richardson the district court properly departed downward based on “the time that had elapsed since Richardson's last felony and last person felony convictions.” 20 Kan.App.2d at 942.
In the present case, the district court found the opposite: In recent years Ellis had committed more, and more serious, crimes. Observing that “probation is ... granted as an evaluation of the characteristics of the offender and the determination that the offender may respond best to supervised control within the community and that public safety will not be in danger,” the district court found that Ellis' criminality was proving to be a threat beyond the three or more nonperson felonies already weighed in his criminal history score of E. See K.S.A.2009 Supp. 21–4704(a). Given the increased number and seriousness of Ellis' crimes, the district court's findings were clearly supported by substantial evidence.
This court has recognized nonamenability to probation as a valid nonstatutory factor supporting departure. See State v. Snow, 40 Kan.App.2d 747, 755–56, 195 P.3d 282 (2008), rev. denied 289 Kan. 1285 (2009). Moreover, “[a]s long as one factor relied upon by the sentencing court is substantial and compelling, the departure sentence should be upheld.” Blackmon, 285 Kan. 719, Syl. ¶ 3.
Because a reasonable person could have taken the view that Ellis' criminal conduct was increasing and becoming more serious, thus making him not amenable to probation, the district court did not abuse its discretion in ordering an upward dispositional departure sentence of imprisonment in 2010 CR 157.
As a related matter, the State suggests the district court departed based on other factors. But the record does not reflect that the district court specifically articulated these other factors.
Factors other than those stated by the district court while ruling are irrelevant:
“[T]he possibility that a sentencing court could have relied on departure factors other than those stated on the record at the time of sentencing does not provide an appellate court the basis to uphold the sentence even if the record establishes there were substantial and compelling reasons for departure that were not noted by the sentencing court.” Blackmon, 285 Kan. at 729.
Finally, this case is remanded with directions to the district court to file a nunc pro tunc journal entry of judgment to correct the erroneous statement that Ellis' sentence in 2010 CR 157 was presumptive imprisonment due to the special rule at K.S.A.2009 Supp. 21–4704(p).
Affirmed and remanded with directions.