Opinion
No. 107,866.
2015-02-19
STATE of Kansas, Appellee, v. Dandre W. WILLIAMS, Appellant.
Appeal from Douglas District Court; Paula B. Martin, Judge.Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.Crystalyn Oswald, legal intern, Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Paula B. Martin, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Crystalyn Oswald, legal intern, Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Dandre W. Williams pled guilty to three counts of aggravated robbery. In exchange for his plea, the State dismissed one count of aggravated burglary and recommended a downward durational departure to 130 months' imprisonment. On appeal, Williams contends that the district court erred in not granting him a greater downward durational departure because his criminal history stemmed from a single juvenile case and because of his age. In addition, Williams contends that the district court erred by considering his underlying juvenile adjudication as part of his criminal history without first requiring that the facts be proven to a jury beyond a reasonable doubt. Because we find no error, we affirm the sentence imposed by the district court.
Facts
On the evening of December 2, 2010, Michael Hammond arranged for Williams and his codefendants to commit an armed robbery. Hammond knew the targeted individuals whom he identified as drug dealers and advised the men where to find the dealers' apartment. Hammond assured them that no one at the apartment would be armed and there would be no need for violence. Although Williams and his codefendants followed Hammond's directions to the apartment building, they mistakenly entered the wrong unit and robbed three young women. While his codefendants were taking a laptop computer and a television, Williams held a gun to the head of one of the victims as he ordered all three women to get down on the ground.
On September 6, 2011, Williams pled guilty to three counts of aggravated robbery, a severity level 3 person felony. Williams' presentence investigation (PSI) report indicated a criminal history score of “A” and a corresponding sentence of 247 months' imprisonment. In exchange for Williams' plea, the State dismissed a fourth charged count of aggravated burglary. The State also recommended that the district court impose a downward durational departure to a sentence of 130 months' imprisonment and that sentences run concurrently.
Prior to sentencing, Williams moved for a downward durational departure greater than that recommended by the State. At the sentencing hearing, the prosecutor opposed any further departure, reiterating that Williams held a gun to one victim's head, forced all three victims down to the ground at gunpoint, and stole items from their apartment. Moreover, the prosecutor read into the record a written statement from one of the victims, who characterized the night of the robbery as the worst night of her life.
In her statement, the victim recalled hearing a loud noise that evening, opening the front door to her apartment, and being immediately accosted by a large man. He twisted her arm behind her back and held a gun to her head. The man walked her to a bedroom and told the victims to get on the ground. She stated that she was “terrified” and the only thing she saw when she opened her eyes was a gun in her face. Moreover, the victim called the process of recovering from the night of the robbery “life-changing” and indicated that it affected every subsequent day of her life. As a result of the robbery, she developed post-traumatic stress disorder, which required frequent therapy sessions.
In support of his request for a greater departure, Williams, his parents, and his pastor addressed the district court to request leniency. Defense counsel argued that Williams' criminal history score of “A” was the result of a single juvenile case in which Williams and some friends stole items from open garages. He further argued that despite his role in planning the robbery, Hammond was allowed to enter a plea of no contest to a single severity level 9 felony. In return, the State recommended that Hammond be sentenced to probation.
Specifically, defense counsel argued:
“There's more going on here than simply reducing the amount in one case. There are—our system—and our grid system is very complex. The special rules with guns when you can increase a person's criminal history, how that affects that criminal history are all very complex. Mr. Hammond received benefits at every level of that figuring out of how they wanted to charge this case. Because his criminal history didn't get bumped by the other. His criminal history didn't become an A or a D or a B depending on how many charges they would have dismissed from this case.
“So when the State comes in and they talk about how horrible and how dangerous this event was, our criminal justice system believes in aiding and abetting. Our criminal justice system takes that into account. Our criminal justice system has created a way that the person who simply creates it, buys it and plans it can't sit up in their ivory tower and say, ‘Well, I'm not the guy with my hand on the trigger. Let me tell you what I can give you and give me a good deal.’ That's what our rights are supposed to protect against .”
In light of Hammond's plea deal, defense counsel asked the district court to impose gridbox sentences on Williams for three severity level 7 felonies. Defense counsel concluded by arguing, “[W]e think that the State set the bar in this case. We think the State sent the message for what it's worth and we'd like something similar to what the State gave the person who set all of this in motion.”
Although the district court judge agreed that the State's treatment of Hammond may have been unfair, it explained that the State has the authority to charge and enter into plea negotiations. Also on the subject of Hammond, the district court stated:
“It is relevant as a departure factor the sentence given to co-defendants, and I do consider Mr. Hammond a co-defendant as the person who arranged this. But as the State said, he's not the person who went inside. He's not the person who drove to the apartment. He's not the person who held a gun to the victims' heads. And those are facts that I have to consider in your cases.”
For the reasons agreed to by the parties, the district court found there were substantial and compelling reasons to depart in Williams' case. But the district court also found that the fear Williams inflicted on his victims was “horrible,” referencing the victim statement and noting that she was still recovering. After considering and balancing all of the information presented at the hearing, the district court imposed a downward durational departure sentence of 130 months' imprisonment for the first count of aggravated robbery and concurrent sentences of 59 months' imprisonment for each subsequent count.
Williams timely appealed his sentence. This court initially dismissed the appeal for lack of jurisdiction, citing State v. Crawford, 21 Kan.App.2d 169, 897 P.2d 1041 (1995). However, the Kansas Supreme Court later vacated that order of dismissal in light of its opinion in State v. Looney, 299 Kan. 903, 327 P.3d 425 (2014). The case was remanded to this court for consideration of Williams' challenge to his sentence.
Analysis
Downward Durational Departure
In his first issue on appeal, Williams contends that the district court abused its discretion in not granting a greater durational departure. The State disagrees, arguing that the district court weighed the evidence presented at the sentencing hearing and made a reasonable determination based upon that evidence. We agree with the State.
Williams argues that the district court abused its discretion in not granting a greater durational departure. He points out that his criminal history arises out of a single juvenile case that resulted in convictions for three person felonies. Furthermore, Williams states that he has a high school degree and has been contributing to society by working and pursuing higher education. Hence, Williams contends that a shorter prison sentence would better promote the goals of rehabilitation and preventing recidivism.
When the extent of a downward durational departure is challenged, our “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.” State v. Spencer, 291 Kan. 796, 807–08, 248 P.3d 256 (2011). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). “ ‘Judicial discretion is abused when no reasonable person would take the view adopted by the district judge.’ [Citation omitted.]” State v. Plotner, 290 Kan. 774, 777, 235 P.3d 417 (2010). The party asserting the trial court abused its discretion bears the burden of showing such abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
In considering a defendant's departure motion:
“A district court judge is required to undertake a two-step analysis when determining whether a departure motion should be granted. A district court judge first reviews the mitigating circumstances, and then determines whether substantial and compelling reasons warrant a departure. [Citation omitted.] Specificity by the district court judge when making his or her determination is not statutorily required, though specificity is required if the district court judge decides departure is warranted, i.e., in those circumstances ‘the judge shall state on the record ... the substantial and compelling reasons for the departure.’ [Citation omitted.]” Plotner, 290 Kan. at 780–81.
Here, a review of the record reflects that the district court considered all of the circumstances Williams advanced, which included: listening to arguments made by his attorney, listening to a statement by Williams, listening to statements by Williams' parents and pastor, and reviewing the motion for downward durational departure. Additionally, the district court considered the State's arguments as well as a statement written by one of the victims. Ultimately, the district court concluded that Williams presented substantial and compelling mitigating circumstances to justify a departure to 130 months-but no further.
In reaching this conclusion, the district court acknowledged that Williams had only accrued one misdemeanor as an adult and that his prior felony convictions all stemmed from a single juvenile case. Nevertheless, the district court found it significant that Williams entered the victims' apartment, possessed a gun, and held it to one of the victim's heads. It also recognized the fear Williams inflicted on that victim, stating that she “is still recovering and will remember this for the rest of her life.”
Accordingly, we find that a reasonable person could agree with the district court's evaluation and conclusion. In fact, some may question whether any departure was warranted under the circumstances presented. Moreover, we do not find the district court's conclusion to be arbitrary, to be based on an error of law, or to be based on an error of fact. We, therefore, conclude that the district court did not abuse its discretion when it denied Williams' motion for an additional downward durational departure. Apprendi Issue
Williams' second argument on appeal is that the district court violated his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Specifically, Williams argues that the district court erred when it considered his juvenile adjudication as part of his criminal history in imposing his sentence without requiring the State to prove the underlying facts to a jury beyond a reasonable doubt. This argument involves a question of law over which our review is unlimited. See State v. Pennington, 276 Kan. 841, 851, 80 P.3d 44 (2003).
As Williams acknowledges, this issue was previously decided and rejected by the Kansas Supreme Court in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). In Ivory, our Supreme Court held that the use of a defendant's criminal history to calculate the presumptive KSGA sentence does not violate due process as interpreted by Apprendi. 273 Kan. at 46–48; see also State v. Johnson, 286 Kan. 824, 840–52, 190 P.3d 207 (2008).
This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P .3d 1027 (2011), rev. denied 294 Kan. 946 (2012). At this point, we know of nothing to suggest that our Supreme Court is considering a departure from its holding in Ivory. State v. McCaslin, 291 Kan. 697, 731–32, 245 P.3d 1030 (2011) (affirming Ivory ). Thus, we find no error.
Affirmed.