Opinion
No. 105,536.
2012-07-27
STATE of Kansas, Appellant, v. Ramiro BERNAL, Appellee.
Appeal from Finney District Court, Michael L. Quint, Judge. Lois K. Malin, assistant district attorney, John P. Wheeler, Jr., district attorney, and Derek Schmidt, attorney general, for appellant. Julie McKenna, of McKenna Law Office, P.A., of Salina, for appellee.
Appeal from Finney District Court, Michael L. Quint, Judge.
Lois K. Malin, assistant district attorney, John P. Wheeler, Jr., district attorney, and Derek Schmidt, attorney general, for appellant. Julie McKenna, of McKenna Law Office, P.A., of Salina, for appellee.
Before GREENE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
The State appeals the district court's grant of a downward durational departure to Ramiro Bernal. Bernal's conviction for rape in violation of K.S.A. 21–3502(a)(1)(C) was affirmed on direct appeal, State v. Bernal, No. 92,000, unpublished opinion filed November 4, 2005, rev. denied 281 Kan. 1379 (2006); but he successfully argued in a K.S.A. 60–1507 action that his counsel was ineffective for failing to seek a downward durational departure at sentencing. See Bernal v. State, No. 101,296, unpublished opinion filed July 16, 2010. Bernal was allowed to file a motion for departure, and the district court granted it after an evidentiary hearing. We affirm.
Factual and Procedural Background
Bernal raped A.P. on or about July 6, 2002, when she was 17 years old. A.P. testified that she smoked marijuana at a party “numerous times,” took controlled substances (believed to be alprazolam) provided to her by a woman at the party, and then was sexually assaulted by Bernal, MB., and other men. Bernal was 19 years old at the time, but M.B. was a minor.
A.P. testified that she was unable either to object or to consent: “I did not want to be in there doing this, but I wasn't able to communicate what I was thinking. I could think it, but I couldn't communicate.” A.P. said that when Bernal asked “if I wanted him to use a condom,” she “responded [with] the only thing I could think to say, [which] was no.” A.P. testified that she actually “meant, no, I don't want to be here. I don't want to be doing this.... I had a lot I wanted to say, but all I could get out was no.”
The district court certified M.B. as an adult, and the State charged both Bernal and M.B. with rape in the district court. At trial, Bernal maintained that A.P. had consented to sexual relations. The State argued that A.P. was unable to consent because of the effect of a narcotic or drug and that her condition was known by Bernal or reasonably apparent to him. The jury returned a guilty verdict, and the district court imposed the standard sentence of 586 months' imprisonment based on Bernal's criminal history score of B.
M.B. also went to trial for rape as an adult in district court. During trial, however, the State and M.B. entered into a plea agreement which provided that M.B. would plead guilty to misdemeanor sexual battery as a juvenile in juvenile court. M.B. was sentenced as a juvenile and received no jail time for his sexual assault of A.P.
After his successful K.S.A. 60–1507 action, Bernal moved for a durational departure based on his “youth, disparate treatment of a co-defendant, participation of others in the offense, an over-stated criminal history, and continued family support.” The district court held an evidentiary hearing, but A.P.'s whereabouts were unknown and she did not appear. The witnesses for Bernal were his sister, Annette Bernal, and his mother, Angela Chairez. The State's witnesses were the investigating officer, Detective Freddie Strawder, and the Finney County Victim Witness Coordinator, Elizabeth York.
After hearing testimony and arguments, the district court granted Bernal's motion for a downward dispositional departure. The district court reduced Bernal's sentence from 586 months to 155 months' imprisonment, the standard sentence for rape given a defendant with a criminal history score of I. The State timely appeals.
Propriety of the Downward Durational Departure
The State contends the district court's reasons for the downward departure were not supported by the record and were not substantial and compelling.
Our consideration of the State's appeal is guided by the following standards of review. An appellate court reviews whether the record supports the district court's reasons for departure using a substantial competent evidence standard. State v. Spencer, 291 Kan. 796, 807, 248 P.3d 256 (2011). On the other hand, an appellate court reviews whether the “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,” using an abuse of discretion standard. 291 Kan. at 807. Discretion is abused if no reasonable person could take the view of the district court, if the district court ruled based on an error of law, or if it ruled based on an error of fact. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). With regard to whether a mitigating or aggravating factor found by the sentencing court “can ever, as a matter of law, be substantial and compelling in any case,” our review is de novo. Spencer, 291 Kan. at 807.
A district court's decision to depart from a guidelines sentence must be supported by substantial and compelling reasons justifying a deviation from the presumptive sentence defined by the legislature. See K.S.A. 21–4716(a); State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008). “Substantial” means something real, not imagined; something with substance, not ephemeral. 285 Kan. at 724. “Compelling” means that the circumstances of the case force the sentencing court “to abandon the status quo and to venture beyond the sentence that it would ordinarily impose.” 285 Kan. at 724. “ ‘ “Reasons which may in one case justify departure may not in all cases justify a departure.” ‘ [Citation omitted.]” State v. Martin, 285 Kan. 735, 744, 175 P.3d 832 (2008). An appellate court evaluates each case individually to consider “ ‘ “the offense of conviction, the defendant's criminal history, and the departure reason stated, as well as the purposes and principles of the Kansas Sentencing Guidelines.” ‘ [Citations omitted.]” 285 Kan. at 744.
K.S.A. 21–4716(c)(1) provides a nonexclusive list of mitigating factors for determining whether substantial and compelling reasons exist. Sentencing courts may also consider nonstatutory factors, “as long as there is evidence in the record to support such factors and the use of the factors would be consistent with the intent and purposes of the sentencing guidelines. [Citations omitted.]” Blackmon, 285 Kan. at 725. If any of the factors articulated by the sentencing court would justify the departure, the decision will be upheld on appeal. 285 Kan. at 725.
The district court's ruling from the bench suggests it relied upon the following factors: (1) the nature and circumstances of the case, including A.P.'s risky behavior and her answer when Bernal asked about a condom; (2) Eternal's age; (3) Bernal's family support; (4) Bernal's criminal history; and (5) the disparity between Bernal's and M.B.'s sentences. We believe the last three factors are the most significant and determinative of the appellate issue. As a result, we consider them in reverse order.
Disparity of Sentences
The State contends the district court “abused [its] discretion” by considering the “disparate treatment of co-defendants.” The State elsewhere denies that Bernal and M.B. were codefendants, a point we cannot resolve on this record. It is obvious, however, that A.P. was sexually assaulted in an identical manner by both Bernal and M.B. at the same party under similar circumstances when A .P., because of ingesting controlled substances, was incapable of giving consent. The State still concludes, in any event, that the “individual sentences have no relationship to each other.”
Before we address the State's arguments, we note a problem with the record on appeal. Although the State offered the presentence investigation (PSI) report from M.B.'s case into evidence during the hearing, it has not included the PSI in the record on appeal. This omission is important given the use of criminal history in guidelines sentences and when deciding on sentencing departures. See Martin, 285 Kan. at 744. Because we are unable to compare the criminal histories of Bernal and M.B., we cannot fully compare their sentences. The State has failed to designate an adequate record on this point of appeal. See State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008).
The State does cite State v. Ussery, 34 Kan.App.2d 250, 254, 116 P.3d 735,rev. denied 280 Kan. 991 (2005), where this court considered a similar argument on a “woefully inadequate record.” The Ussery panel presumed the record supported the district court's findings, and we will do the same here. In the present case, the district court found a “substantial disparity” between the sentences, which we take to mean a difference not explained by the respective criminal histories or some other relevant consideration. See State v. Sweat, 30 Kan.App.2d 756, 772, 48 P.3d 8,rev. denied 274 Kan. 1118 (2002). Because the State did not include M.B.'s PSI in the record on appeal, we will presume the difference in the sentences was not explained by the respective criminal histories of Bernal and M.B.
The State offers two other reasons for the difference in the sentences. The State contends the evidence “justifies Bernal being treated more harshly” because “Bernal obviously was the leader and [M.B.] a follower in the gang rape.” The State argues from the evidence at trial, but at the departure hearing Detective Strawder testified to the contrary: “Q.... [B]ased on your experience, your background and your investigation, is there any doubt in your mind that [M.B] is just as culpable for doing exactly what Ramiro Bernal did? A. He had sex with [A.P.] and she was under the influence, I agree.”
Detective Strawder explained that the case against M.B. was weaker because M.B. had maintained that A.P. “was fine” and did not appear to be under the influence of intoxicants. Bernal, in contrast, had admitted to knowledge that A.P. used marijuana, took “some pills or something,” and “was pretty [expletive deleted] up .” This led to the following exchange between Bernal's counsel and the detective at the hearing: “Q. So, really, the guy who's smart enough to deny it gets a misdemeanor, because his case is weaker, right? Even though he's equally culpable? A. That's the way it ended up.”
Of course, the district court was not obliged to accept Detective Strawder's opinion that both men were equally culpable. But this was the testimony of the State's lead investigator at the departure hearing. Moreover, there was overwhelming evidence by the State that A.B. was significantly impaired—both mentally and physically—at the time she was sexually assaulted by both Bernal and M.B. Given this abundance of evidence, we are not persuaded that M.B.'s self-serving statement that A.B. was not impaired made the State's case more difficult to prosecute. Without reweighing the evidence, which is outside our standard of review, we believe the evidence of equal culpability and the similar strength of the State's evidence of guilt relating to both men supported the district court's finding of a substantial disparity in the sentences. See State v. Walker, 283 Kan. 587, 594–95, 153 P.3d 1257 (2007).
The State, citing Ussery, also emphasizes that M.B. was sentenced as a juvenile. In this regard, the State alludes to the district court's “improper comparison of a juvenile and an adult.” To the extent the State contends that the sentences of a juvenile and an adult may never be compared in a district court's determination of whether sentence disparity exists, we disagree.
We begin by citing with approval the statement in Ussery: The “delineation between juveniles and adults for purposes of prosecution and punishment is a public policy determination reserved to the legislative branch of government, except where constitutional principles apply.” 34 Kan.App.2d at 257. In many cases this delineation might fully explain the difference in sentences. But where sentences are as starkly different as the two imposed here—586 months' imprisonment compared to no imprisonment—and this difference of 48 years' imprisonment is not explained by criminal history, culpability, or some other consideration, we do not believe the legislature intended to exclude, as a matter of law, further examination of the difference simply because one defendant was sentenced as a juvenile.
First, the Ussery panel subjected the factor for sentence disparity to greater scrutiny because it was not a statutory factor. 34 Kan.App.2d at 254. This is no longer the law, however. See Martin, 285 Kan. at 747 (“[W]e expressly reject any notion that ... [the] use of nonstatutory factors for departure should be reviewed with ... stricter scrutiny.”). Second, the legislature provides that in some cases juveniles may be prosecuted as adults. See K.S.A.2011 Supp. 38–2347. As a result, M.B., although a juvenile, went to jury trial as an adult but entered into a plea agreement during trial. We do not believe the legislature's distinction between juveniles and adults shows an intent to exclude all further inquiry in unique cases, like the present one, where the juvenile was certified as an adult under the statutes of the same legislature. See State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010) (legislative intent is discerned from the statutory language).
The fact that M.B. was eventually sentenced as a juvenile because of the plea agreement does not change our reading of the legislative intent. The plea was an agreement between M.B. and the State, not an act of the legislature. We conclude under these special circumstances that the district court did not err in comparing Bernal's adult sentence to M.B.'s juvenile sentence.
We are, therefore, left with a 586–month difference in sentences, which is a very substantial disparity even giving special consideration to M.B.'s status as a juvenile and giving due regard for his plea which obviated the State's need to prove his guilt beyond a reasonable doubt. Because a reasonable person could conclude the disparity of 48 years' imprisonment for Bernal compared to freedom for M.B. was a substantial and compelling reason to depart, we conclude the district court did not abuse its discretion.
Because proof of any one factor articulated by the sentencing court may justify the departure, we affirm the district court's decision on this basis alone. Additionally, we hold that even if the disparity in sentences was not solely a substantial and compelling reason, this factor, in conjunction with the other factors considered below, justified the downward durational departure. See Blackmon, 285 Kan. at 725.
Criminal History
The State contends the district court improperly minimized Bernal's criminal history. The district court found “from the argument” that Bernal's prior person felonies, burglary and fleeing or attempting to elude a police officer, were “not violent crimes.” It concluded that although Bernal's criminal history was B based on his prior crimes, the sentence “should be adjusted at this point to allow a more reasonable punishment for the crime that you actually committed.”
The State protests this approach, arguing that “[w]hether a prior conviction is violent is not relevant to the creation of a criminal history.” We acknowledge this may be true with respect to a guidelines sentence, but it is not correct with respect to a departure sentence. See State v. Favela, 259 Kan. 215, 236, 911 P.2d 792 (1996) (prior crimes considered for departure “in a way which the defendant's criminal history did not take into account”). While the sentencing grid does not distinguish person felonies by the violence involved in the person felonies, a district court is not limited to the sentencing grid when considering a motion to depart. If it were so restricted, departure would be impossible, which is clearly not the legislature's intent: “Except as provided in subsection (b), the sentencing judge shall impose the presumptive sentence provided by the sentencing guideline ... unless the judge finds substantial and compelling reasons to impose a departure .” (Emphasis added.) K.S.A. 21–4716(a).
The State also complains Bernal “presented no evidence of the facts surrounding his prior person felony convictions to support his argument they were not violent crimes.” That is true, but Bernal's counsel argued at the departure hearing that his client did not “have a single violent offense.” Counsel informed the district court that Bernal's burglary conviction was for “stealing stuff out of an empty house” when he was a juvenile. Counsel said the fleeing or attempting to elude conviction was for “[r]unning away from the cops.”
The district court's reliance on these arguments was permitted by K.S.A. 21–4716(d)(3). See Favela, 259 Kan. at 228–29 (“[T]he sentencing court was perfectly justified in relying on the oral arguments of the defense counsel, especially if the court considered such argument to be trustworthy and reliable, in determining whether a mitigating circumstance existed.”). Moreover, our Supreme Court has instructed appellate courts to “not reweigh the credibility of counsel's statements” which “the sentencing court apparently regarded as reliable and trustworthy.” 259 Kan. at 229. And even if we were to reweigh the evidence, we could not do so here. The State had the opportunity to rebut defense counsel's assertions but did not. As the district court noted, the arguments of Bernal's counsel regarding the prior crimes were not contradicted by testimony at the departure hearing.
Thus, we assume that Bernal's prior person felonies were not violent crimes in fact, even if they might be categorized as violent crimes in other legal situations identified by the State, such as federal sentencing. This was the essence of the district court's finding, that Bernal did not “directly endanger the lives of anyone” when accumulating his B criminal history. A reasonable person could distinguish such a criminal history from a history of violent person felonies such as homicide or aggravated battery or from a history of prior sexually violent person felonies, which were not found in Bernal's criminal history.
We conclude the district court's finding of no prior violent crimes was supported by substantial evidence. See Favela, 259 Kan. at 228–29 (treating arguments of counsel as evidence on appellate review). While this finding, standing alone, may not have constituted a substantial and compelling reason to depart, when considered ‘ “in the overall picture,” ‘ Bernal's lack of prior violent crimes supports our ultimate conclusion that the district court did not abuse its discretion when deciding to depart. See Spencer, 291 Kan. at 817.
Family Support
The State essentially concedes that substantial evidence supported the district court's finding of family support. The State also acknowledges that our Supreme Court has treated family support as a possible substantial and compelling reason to depart. See Spencer, 291 Kan. at 818. In the present case, however, the State argues that Bernal's family support was not a compelling reason to depart.
About 31 of Bernal's family and friends appeared at the departure hearing. Annette Bernal (Annette) testified that Bernal's family is ready, willing, and able to help him transition back into society. Annette said she witnessed a change in Bernal's maturity over the past 8 years and she believed he could be “a very productive member” of society. Annette indicated that several family members, including herself, had offered Bernal a place to stay, upon his release from custody. Annette believed she had a job opportunity for Bernal because her best friend's husband is responsible for the hiring decisions at Cargill and he told Annette he would be willing to employ Bernal. Annette also testified that Bernal is a good father to his two minor children and he has remained very involved with them even though he physically cannot be present in their lives.
Angela Chairez similarly testified that Bernal has matured while in prison: “[H]e has grown ... into a very mature person. When before he was incarcerated till now, his grammar and everything else has grown so much. He's learned so much being in prison, and he's done a lot on his own in there to educate himself further.”
After hearing this testimony and that of the State's witnesses, the district court found Bernal's “chances of success ... with these people standing behind you, supporting you financially by hiring an attorney, [and] providing you with opportunities for a job, your situation is much more beneficial to you than the normal person would normally find.”
Once again, we agree with the State that this finding was not, by itself, a compelling reason to depart but it provides added support for our conclusion that the district court did not abuse its discretion.
Taken collectively, the factors relied upon by the district court—the disparity of sentences between Bernal and M.B., Bernal's criminal history, and Bernal's family support—constituted a substantial and compelling basis for departure. See Blackmon, 285 Kan. at 725.
Extent of Departure
The State separately contests the extent of the durational departure.
“[W]hen 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.” Spencer, 291 Kan. at 807–08. Our abuse of discretion standard therefore integrates the requirements of K.S.A. 21–4719, which has since been amended and recodified in modified form. See K.S.A.2011 Supp. 21–6818; Spencer, 291 Kan. at 807;Favela, 259 Kan. at 219.
Under K.S.A. 21–4719(b)(1), a district court has to “consider and apply the enacted purposes and principles of sentencing guidelines to impose a sentence which is proportionate to the severity of the crime of conviction and the offender's criminal history.” There are thus two components, the severity of the crime and the criminal history. With respect to the first, the State argues: “There is absolutely nothing real and meaningful about the facts of this case that make it 75% less egregious than any other rape conviction charged under this same subsection.” With respect to the second component, the State argues the departure to the standard sentence for criminal history I “negated Bernal's entire criminal history.” These arguments require us to interpret K.S.A. 21–4719(b)(1), which is a question of law subject to unlimited review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
At the outset, while departure sentences are not guidelines sentences, they are not necessarily contrary to the purpose and principles of the guidelines. K.S.A. 21–4719(b)(l) identifies the “purposes and principles of the guidelines” to include sentences “proportionate to the severity of the crime of conviction and the offender's criminal history.” See Favela, 259 Kan. at 234 (mentioning legislative purpose of “standardiz[ing] sentences so similarly situated offenders are treated the same in order to reduce the effects of racial or geographic bias.”). In this sense, we observe that a proportionate departure sentence may actually fulfill the purpose and principles of the guidelines better than the guidelines sentence. See 259 Kan. at 233–34.
Turning now to the severity of the crime, the State describes what it calls a “typical” crime under K.S.A. 21–3502(a)(1)(C):
“The facts of these types of rapes are simple. Victims who are drunk or under the influence of drugs to the point they cannot consent, are subjected to sexual intercourse; this often happens at a party. A jury finds that at the time of the sex act, the rapist knew or should have know they [ sic ] could not consent due to their condition. Those would be the typical facts—these would be the facts of this case.”
The State infers from this that Bernal should have received the typical sentence, i.e., the guidelines sentence for a defendant with his criminal history. But the appropriate test is the severity of a particular crime, not an abstract question concerning a “typical” crime. Our research located the following examples in recent published cases.
In State v. Chaney, 269 Kan. 10, 5 P.3d 492 (2000), a 14–year–old juvenile in the care of a babysitter in the victim's own home was encouraged to become intoxicated by the 18–year–old defendant. The defendant told her that “if she drank the beer through a straw, she would get drunk quicker.” 269 Kan. at 11. Ultimately, as a result of the defendant's efforts, the juvenile “was both psychologically and physiologically impaired due to the effects of alcohol.” 269 Kan. 10, Syl. The victim refused the defendant's requests for sex several times before the rape occurred.
In State v. Smith, 39 Kan.App.2d 204, 178 P.3d 672,rev. denied 286 Kan. 1185 (2008), the victim passed out after spending the evening drinking six to eight beers with a male friend. After going to bed at his home, she remembered only the feeling of “something on her hips” 39 Kan.App.2d at 206. She went back to sleep and awoke to signs indicating that she had been raped. According to our court, “[s]he unequivocally testified that she never gave consent to Smith to have sexual intercourse and would not have done so.” 39 Kan.App.2d at 208.
In State v. Requena, 30 Kan.App.2d 200, 41 P.3d 862 (2001), rev. denied 273 Kan. 1039 (2002), the 31–year–old defendant served as an occasional helper to the 49–year–old victim, an older woman suffering from multiple sclerosis, “paralyzing depression,” alcoholism, extreme fatigue, and memory loss. 30 Kan.App.2d at 201. As a consequence of her deteriorating health, the victim needed assistance with driving, bathing, and other household chores. Prior to the rape, the victim took Remeron, a sleeping medication. The victim fell asleep, and in the morning discovered signs she had been raped.
In the present case, A.P. was 17 and went to a party where she willingly ingested the controlled substances of marijuana and alprazolam—drugs apparently not provided to her by Bernal, unlike the victim in Chaney. Moreover, the evidence did not show that A .P. explicitly refused Bernal's sexual advances, unlike the victim in Chaney. In the present case, both Bernal and A.P. testified that A.P. said “no” when A.P. was asked by Bernal if she wanted him to wear a condom. While A.P. testified she meant to convey she did not want to have sexual relations, there was no possible ambiguity in Smith and Requena because both victims were asleep or unconscious. Finally, unlike the present case, the victim in Requena was physically and emotionally compromised due to her severe health conditions and the defendant was not a teenager. We are persuaded that a reasonable person could evaluate the circumstances in all four cases and conclude the present crime was not as aggravated as Chaney, Smith, and Requena.
With respect to the criminal history, we cannot discern in K.S.A. 21–4719(b)(l) a minimum ratio between a durational departure sentence and the guidelines sentence. The 2008 amendments to K.S.A. 21–4719(b)(1) imposed a 50% minimum ratio for sexually violent crimes, but our Supreme Court has read these amendments generally as a change in the statute, not an expression of prior legislative intent. See State v. Gracey, 288 Kan. 252, 260, 200 P.3d 1275 (2009). “When the legislature revises an existing law, the court presumes that the legislature intended to change the law as it existed prior to the amendment. [Citation omitted.]” 288 Kan. at 260. We therefore do not find error based on the ratio of approximately 27% between Bernal's departure sentence and his guidelines sentence.
We have already discussed the details of Bernal's criminal history. The district court considered the lack of violent crimes in Bernal's past as significant and did not simply ignore his criminal history as the State argues. Based on our review of the record, we are unable to say that no reasonable person would agree with the district court's decision to impose a 155–month sentence for Bernal's crime.
Affirmed.