Opinion
111,492.
06-05-2015
STATE of Kansas, Appellee, v. Gary BENTLEY, Appellant.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and Standridge, JJ.
MEMORANDUM OPINION
PER CURIAM:
Gary D. Bentley, Jr., appeals his sentences after pleading guilty in a series of felony cases. According to a plea agreement, four of five cases were consolidated for sentencing. The district court denied a departure sentence in the consolidated cases but granted a departure in the lone unconsolidated case. In this appeal, Bentley argues two issues: the district court abused its discretion in denying further 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 denying Bentley's request for further 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.
In his plea agreement, Bentley pled guilty to the following charges:
1. 12CR2978–Possession of marijuana with intent to distribute; Possession of methamphetamine
2. 12CR2841–Theft; Criminal possession of a firearm; Criminal possession of a firearm
3. 12CR2840–Fleeing or attempting to elude an officer
4. 12CR2858–Possession of marijuana with intent to distribute; Possession of methamphetamine; Battery against a law enforcement officer; Criminal possession of a firearm; Aggravated weapons violation by a convicted felon; Aggravated weapons violation by a convicted felon
5. 12CR3145–Aggravated battery; Aggravated assault.
The State agreed to recommend a departure sentence of 22 months' incarceration in 12CR3145, consolidation of the remaining cases for sentencing, concurrent sentences in the consolidated cases, and a controlling sentence of 90 months' incarceration (68 months in consolidated cases and 22 months in 12CR3145). The plea agreement stated that Bentley was free to argue for further durational departures, but the State would oppose it.
Bentley filed a motion for a durational departure sentence in which he argued: (1) he had admitted his guilt and had taken responsibility for his actions; (2) his plea saved judicial time and resources; (3) his history of community based supervision showed he was amenable to probation and not a hardened criminal that needed to be locked away for a lengthy period of time; (4) he previously had completed probation; (5) he had a number of crippling events causing him to return to increased drug use and poor judgment; (6) a lengthy prison sentence was unnecessary to promote the ends of justice and public safety; (7) the Department of Corrections had limited resources and programs to promote rehabilitation; (8) shorter prison stays generally produce better outcomes based on reunions with families and positive contacts; and (9) he had the support of his family and other members of the community.
The district court sentenced Bentley to a total sentence of 90 months' incarceration as recommended by the State in the plea agreement. In Case No. 12CR3145, Bentley's presumptive prison sentencing range for aggravated battery was 27–29–31 months. The district court followed the plea agreement and granted a departure sentence to Bentley of 22 months' incarceration. On the aggravated assault conviction, the district court ordered a concurrent presumptive sentence of 5 months. In the consolidated cases of 12CR2840, 12CR2841, 12CR2858, and 12CR2978, the district court denied a durational departure. The court used Bentley's possession of marijuana with intent to distribute as the primary crime and sentenced him to a presumptive sentence of 68 months' incarceration to run consecutive to the 22–month sentence in 12CR3145. The district court ran all the rest of the sentences in the consolidated cases concurrent with the 68–month sentence. Bentley filed a notice of appeal in each individual case.
Bentley raises two arguments on appeal. First, he argues the district court abused its discretion when it partially denied his motion for departure. Second, he contends the district 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.
We first recognize that we lack jurisdiction to consider Bentley's appeal in the consolidated cases because the district court entered the presumptive sentence. K.S.A.2014 Supp. 21–6820(c)(1) states that an appellate court shall not review any sentence that is within the presumptive sentence for the crime. Bentley's primary crime in the consolidated cases (possession of marijuana with intent to distribute) had a presumptive sentencing range of 68–73–77. The district court sentenced Bentley to 68 months' incarceration and then ran all the sentences in the consolidated cases concurrently. All of the sentences in the consolidated cases were presumptive sentences as well. Thus, because Bentley received a presumptive sentence, we lack subject matter jurisdiction to consider the consolidated cases on appeal. See State v. Huerta, 291 Kan. 831, 837, 247 P.3d 1043 (2011) (reaffirming that K.S.A. 21–4721 [c][1]—now K.S.A.2014 Supp. 21–6820 [c][1]—eliminates appeals of presumptive sentences); State v. Jacobs, 293 Kan. 465, Syl. ¶ 3, 263 P.3d 790 (2011) (stating that the imposition of consecutive sentences does not constitute a departure sentence and provides no statutory basis for an appeal).
Turning to the departure motion in 12CR3145, we have jurisdiction to consider whether a district court that has granted a departure motion in a defendant's favor should have made an even greater departure. State v. Looney, 299 Kan. 903, 907–09, 327 P.3d 425 (2014). 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).
As for Bentley's argument that the district court abused its discretion in denying further departure, we find no such abuse. See Spencer, 291 Kan. at 807, 248 P.3d 256. Bentley does not raise any new arguments on appeal, just rehashes the above factors he described to the district court at the sentencing hearing.
K.S.A.2014 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.2014 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 ––– U.S. ––––, 134 S.Ct. 270, 187 L.Ed.2d 196 (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. See State v. Blackmon, 285 Kan. 719, 725, 176 P.3d 160 (2008).
Here, the sentences ultimately imposed by the district court favored Bentley greatly. The district court granted him a downward durational departure and sentenced him to 22 months' imprisonment in the unconsolidated case. Additionally, after determining the primary crime and ordering the low-end number in the sentencing range, the court ordered all of the counts in the large number of consolidated cases to run concurrent with the 68–month primary crime sentence. We find no error in the court's departure sentence and no abuse of discretion in not departing further in Case No. 12CR3145.
Bentley 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, 41 P.3d 781 (2002), and he includes the argument to preserve the issue for federal review.
The Court of Appeals is 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 Bentley's Apprendi claim.
Affirmed.