Opinion
No. 107,849.
2013-06-7
STATE of Kansas, Appellee, v. Garrett RANDALL, Appellant.
Appeal from Sedgwick District Court; David J. Kaufman, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; David J. Kaufman, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., McANANY and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Garrett Randall appeals from his sentencing. In particular, Randall argues that although the district court granted him a downward durational departure from an off-grid mandatory minimum sentence of 25–years imprisonment, the district court abused its discretion in not departing further downward from the presumptive guidelines sentence. We find no error by the district court and affirm the sentencing.
Factual and Procedural Background
Randall was 23 years old when he sexually assaulted his wife's 3–year–old, half-sister, M.D. A few days later, M.D. told her mother about the incident which involved Randall placing his penis in M.D.'s rectum and touching her vagina. A sexual assault examination of M.D. revealed a cut between the vaginal and rectal openings in addition to the surrounding area being red and irritated. In an interview, M.D. reported that she cried during the incident because it hurt and that Randall stopped but continued the sexual assault.
Pursuant to a plea agreement with the State, Randall pled guilty to one count of aggravated criminal sodomy (K.S.A.2010 Supp. 21–3506[a][1] ) and two counts of aggravated indecent liberties with a child (K.S.A.2010 Supp. 21–3504[a][3][A] ). The plea agreement provided that the State would recommend a departure from the off-grid Jessica's Law sentences (K.S.A.2010 Supp. 21–4643) to the aggravated sentences for each crime as provided by the Kansas Sentencing Guidelines (KSGA), K.S.A. 21–4701 et seq.) Moreover, the State was permitted to request consecutive sentences, while Randall was free to ask for an additional downward durational departure.
The district court followed the plea agreement, departed from the 25–year mandatory minimum sentences provided by Jessica's Law and imposed consecutive guidelines sentences totaling 298 months' imprisonment. The district court denied any additional downward durational departure. Randall filed a timely appeal.
District Court's Denial of an Additional Downward Durational Departure
On appeal, Randall argues: “Because substantial and compelling reasons exist that render Mr. Randall's sentence not proportionate to the severity of the crime and to Mr. Randall's criminal history, the district court abused its discretion in not granting a greater downward durational departure.” Randall asks us to vacate his sentences and remand for resentencing.
Our Supreme Court has provided the following appellate standards of review:
“(1) When the question is whether the record supported a sentencing judge's particular articulated reasons for departure, an appellate court's standard of review is substantial competent evidence; (2) when the question is whether a sentencing judge correctly concluded that particular mitigating factors constituted substantial and compelling reasons to depart in a particular case, including whether those mitigating factors outweighed any aggravating factors if such a balance was necessary, the appellate standard of review is abuse of discretion; (3) 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; and (4) when the challenge focuses on the extent of a durational departure, the appellate standard of review is abuse of discretion, measuring whether the departure is consistent with the purposes of the guidelines and proportionate to the crime severity and the defendant's criminal history.” (Emphasis added.) State v. Spencer, 291 Kan. 796, 807–08, 248 P.3d 256 (2011).
The parties agree that we review this issue for abuse of discretion.
“Judicial discretion is abused if judicial action is (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) 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. [Citation omitted.]” State v. Ebaben, 294 Kan. 807, 811–12, 281 P.3d 129 (2012).
With regard to Randall's contention that the district court's “departure is not proportionate to the crime severity and [his] criminal history,” he does not explain his understanding of “the crime severity.” The phrase is not listed among the nonexclusive list of mitigating circumstances in K.S.A.2010 Supp. 21–4643(d).
If crime severity means the severity of criminal acts, Randall does not brief them on appeal. A point raised incidentally in a brief and not argued is deemed abandoned. Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008). As described earlier, the factual basis for Randall's pleas showed that he lewdly touched the genitalia and rectum of a 3–year–old girl. At sentencing the district court made similar findings and added that the child was injured, suffered pain, and cried during the sexual abuse.
These criminal acts perpetrated upon a child of tender years were considered sufficiently severe that the legislature provided 25–year mandatory minimum sentences as punishment for their commission. See K.S.A.2010 Supp. 21–3506(a)(1); K.S.A.2010 Supp. 21–3504(a)(3)(A). Given the absence of facts mitigating the severity of the acts themselves, we do not believe the district court—having already departed from the 25–year mandatory minimum sentences—abused its discretion by refusing to depart downward again. See State v. Ballard, 289 Kan. 1000, 1009–10, 218 P.3d 432 (2009) (no abuse of discretion when, after departing from the 25–year mandatory minimum sentence, the district court imposed the guidelines sentence rather than departing dispositionally to probation).
On the other hand, if by crime severity Randall means his personal culpability, he alleges several facts. Randall claims “at the time of the incidents, [he] was suffering from emotional problems, alcoholism, and potentially adverse side effects from a prescription medication.” Randall specifies the prescription medication as Cymbalta and asserts it “possibly” rendered him unable to understand right from wrong.
The district court specifically made findings regarding these alleged facts. In particular, the district court found that “[d]uring the crime's commission” Randall “was not drunk, that is, intoxicated.” The district court also found that while it was “possible” Randall “could not have appreciated the right or wrong of his actions during the crime's commission because of the medication he was taking, it is not probable.” The basis for this last finding undoubtedly was because of two other facts. First, the district court determined that Randall waited until he was alone with M.D. and was “reasonably certain” no one would return to the residence before committing the crimes. Second, Randall “put a black cap completely over the victim's head during the crime's commission.” It is understatement to observe that these last two facts indicate Randall's awareness of wrongdoing at the time of the offense.
Examined closely, Randall does not directly challenge the district court's findings. Rather, he asserts there were circumstances which were substantial and compelling reasons to additionally depart downward. See K.S.A.2010 Supp. 21–4643(d).
“To be substantial the reason must be real, not imagined, and of substance, not ephemeral. To be compelling the reason must be one which forces the court, by the facts of the case, to abandon the status quo and to venture beyond the sentence that it would ordinarily impose. [Citation omitted.]” State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008).
We see no error in refusing to depart from the guidelines sentences here. Randall was not actually intoxicated at the time of the crimes, he has not shown the medication actually affected him, and he demonstrated a consciousness of guilt by committing the crimes when he was unlikely to be caught in the act. See Ballard, 289 Kan. at 1009–10 (affirming departure to guidelines but not dispositionally to probation where defendant claimed intoxication); State v. Spotts, 288 Kan. 650, 655–56, 206 P.3d 510 (2009) (affirming no departure where defendant was taking medications and “ ‘wasn't thinking right.’ ”).
Randall further alleges that he had “no significant history of criminal activity” and “had accepted responsibility for his actions.” But downward departures have been denied under similar circumstances by our Supreme Court. See State v. Plotner, 290 Kan. 774, 780–81, 235 P.3d 417 (2010) (taking responsibility); State v. Trevino, 290 Kan. 317, 322–23, 227 P.3d 951 (2010) (little criminal history); State v. Robison, 290 Kan. 51, 55–57, 222 P.3d 500 (2010) (both). We do not believe the district court abused its discretion here, especially since it had already departed from the 25–year mandatory minimum sentences based on these particular circumstances. And even if the circumstances could have justified a further durational departure from the sentencing guidelines, the district court did not abuse its discretion in refusing to do so under the present facts. See Spencer, 291 Kan. at 818 (leaving unanswered “whether the absence of criminal history is ever a proper mitigator to reduce a guidelines sentence”).
We have considered the remainder of Randall's arguments in light of the record and discern no abuse of discretion. While Randall's total sentence was substantial, his crimes were also substantial. The district court was not obliged to order a further downward durational departure.
Use of Criminal History at Sentencing
Randall argues separately that the district court's consideration of his criminal history at sentencing violated his rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). It is unclear whether the district court made a finding on criminal history which increased Randall's sentence. The district court made a finding on criminal history justifying departure and then announced it would “depart to the grid as both attorneys have requested.” Regardless, Randall candidly acknowledges our Supreme Court has decided this issue adversely to him. See State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). This claim of error is without merit.
Affirmed.