Opinion
111,045.
12-12-2014
STATE of Kansas, Appellee, v. Austin SAGE, Appellant.
Kimberly Streit Vogelsberg, Appellate Defender Office, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Kimberly Streit Vogelsberg, Appellate Defender Office, for appellant.
Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., BRUNS, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Austin Sage pled no contest to several drug related felonies. He fell into category H under the Kansas Sentencing Guidelines Act (KSGA) which provided for a presumptive prison sentence in his case. The district court granted a substantial downward durational departure but denied Sage's request for a dispositional departure to a nonprison sanction. In this appeal, he argues two issues: the district court abused its discretion in denying the dispositional departure; and the court erred in using his prior criminal history to enhance his sentence without submitting it to a jury for proof beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We find there was no abuse of discretion in the denial of the dispositional departure and Apprendi does not require a defendant's criminal history be submitted to a jury before it is used to enhance a sentence. We affirm.
Evidence at the plea hearing demonstrated Sage's involvement in a marijuana trafficking operation with his father. Sage pled no contest to two counts of possession of marijuana with intent to sell, sale of marijuana, possession of drug paraphernalia with intent to distribute a controlled substance, and possession of marijuana without drug tax stamp. The highest level crime among these and the primary crime for sentencing purposes was the first possession with intent to sell crime. Since Sage's criminal history placed him in category H, the KSGA provided a sentencing range of 96–100–108 months for that conviction with a presumption of imprisonment. The district court sentenced him on the additional convictions as a category I offender.
Sage filed a motion for a downward dispositional departure sentence or alternatively a downward durational departure sentence. He argued: (1) a nonprison sentence would promote community safety interests of offender reformation; (2) he had accepted full responsibility and entered a plea; (3) he had no violent criminal history or drug related convictions; (4) he was only 24 years old; (5) he was a minor participant in his father's drug operation and was simply accompanying his father that day; (6) he had agreed to a search of his residence; and (7) sufficient community corrections resources existed to ensure community safety. The district court granted a downward durational departure sentence to 36 months' imprisonment for possession with intent to sell and ordered the other sentences to run concurrently. The court's journal entry cited the basis for the departure as “prior successful court services probation, efforts of the defendant at rehabilitation, age of defendant and cooperation with law enforcement.” In denying the request for the dispositional departure the court stated, “I am limited because you fall in a presumptive prison category, and it would be a stretch for me to impose simply probation in this case.”
Sage raises two arguments on appeal. First, he urges there are substantial and compelling reasons for a dispositional departure as well as a downward durational departure. He specifically argues he was not the target of the drug investigation. He also accepted responsibility, cooperated fully, and was amenable to probation. Second, he asserts the district court abused its discretion by finding that it was limited in its ability to place him on probation. He contends this is a misstatement of law because the district court has “full discretion to grant a dispositional departure so long as it finds substantial and compelling reasons exist to grant the departure.” Sage argues the court's statement is akin to statements by the district court in State v. Davis, 48 Kan.App.2d 573, 585, 294 P.3d 353 (2013), that the district court had limited discretion in ordering restitution.
We will first address the State's argument that we have no jurisdiction to hear this appeal because the prison sanction he received was presumptive under the guidelines. However, our Supreme Court—in a case with essentially similar facts as here—determined the appellate courts had jurisdiction to consider a defendant's claim the district court abused its discretion when it “did not depart enough.” See State v. Looney, 299 Kan. 903, 906, 327 P.3d 425, 428 (2014) (2014). Given this precedent, we find we have jurisdiction to address Sage's claim that the district court should have also granted a dispositional departure in addition to the durational departure.
Turning to the merits of the appeal, we first note the standard of review of an appeal from the district court's decision on a departure motion is abuse of discretion. State v. Spencer, 291 Kan. 796, 807, 248 P.3d 256 (2011). Under this standard, an appellate court can find an abuse of discretion 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, 550, 256 P.3d 801 (2011) (citing State v. Gonzalez, 290 Kan. 747, 755–56, 234 P.3d 1 [2010] ), cert. denied 132 S.Ct. 1594 (2012).
In first addressing Sage's complaint about the district court's statement at the time of sentencing that it was limited in departing dispositionally, we find the court never indicated it could not consider a dispositional departure to probation or that it lacked any authority to do so. Rather, in saying “I am limited because you fall in a presumptive prison category, and it would be a stretch for me to impose simply probation in this case” it correctly stated the effect of Sage being in a presumptive prison category under the guidelines. K.S.A.2013 Supp. 21–6815(a) (The sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines unless the judge finds substantial and compelling reasons to impose a departure sentence.). The district court's ability to veer from that presumptive sentence is limited by the requirement that the court must first find substantial and compelling reasons under the facts of the case. We conclude the district court did not err in making the statement Sage complains of.
As for Sage's argument that the district court abused its discretion in denying the dispositional departure, we find no such abuse. See Spencer, 291 Kan. at 807. Sage states he was not the target of the drug investigation, accepted responsibility, cooperated fully, and was amenable to probation. On the other hand, the State argues Sage was not a minor participant, he committed his crimes for greed, his criminal history demonstrated crimes for greed, the amount of marijuana involved revealed an operation in existence for quite some time, and the damage to the community was severe.
K.S.A.2013 Supp. 21–6815(c)(1) sets out a nonexclusive list of mitigating factors a district court may consider when determining whether to grant a departure sentence. In exercising such discretion, the sentencing court must state on the record at the time of sentencing the substantial and compelling reasons justifying a departure from the presumptive guidelines sentence. K.S.A.2013 Supp. 21–6815(a). “Substantial” means something real, not imagined; something with substance, not ephemeral. “Compelling” means that the circumstances of the case force the sentencing court “to ‘abandon the status quo’ and to venture beyond or depart from the ordinary sentence.” State v. Rochelle, 297 Kan. 32, 46, 298 P.3d 293, cert. denied 134 S.Ct. 270 (2013). In reviewing the granting of a departure sentence, we are limited to considering only the articulated reasons for departure stated on the record at sentencing. State v. Blackmon, 285 Kan. 719, 725, 176 P.3d 160 (2008). If any of the factors articulated by the sentencing court would justify the departure, the decision will be upheld on appeal. A departure may be justified by the collective factors even if no one factor, standing alone, would justify a departure. State v. Baptist, 294 Kan. 728, 734–35, 280 P.3d 210 (2012).
Here, the sentence imposed by the district court clearly favored Sage. The district court granted him a downward durational departure and sentenced him to 36 months' imprisonment, nearly 6 years shorter than the midrange presumptive sentence of 100 months' imprisonment under the guidelines. We find no abuse of discretion in the court's finding that, while the facts in Sage's case warranted a substantial downward durational departure, there were not substantial and compelling reasons to also grant a downward dispositional departure. The district court did not err in finding that it would have been a stretch to grant such.
Sage also argues the State's failure to prove his criminal history to a jury violates Apprendi. He recognizes the Kansas Supreme Court has previously decided this issue against him in State v. Ivory, 273 Kan. 44, 45, 41 P.3d 781 (2002), and he merely includes the argument to preserve the issue for federal review.
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Because the Kansas Supreme Court clearly decided this issue in Ivory, and there is no indication the court is departing from its previous position, we reject Sage's Apprendi claim.
Affirmed.