Opinion
No. 108,507.
2014-12-12
STATE of Kansas, Appellee, v. Richard A. BLUNCK, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge.Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Richard A. Blunck appeals claiming the district court abused its discretion by not departing enough on his motion for downward durational departure and by running his conviction consecutive to his 2008 conviction. After reviewing this matter pursuant to State v. Looney, 299 Kan. 903, 327 P.3d 425 (2014), we find no abuse of discretion by the district court and affirm.
Facts
Blunck pleaded guilty to the manufacture of a controlled substance, aggravated endangering of a child, and criminal possession of a firearm while Blunck was on probation in case number 08–CR–3288. The State and Blunck both agreed to recommend a 120–month prison sentence for the manufacture of a controlled substance conviction and to recommend the low numbers for the remaining counts. Blunck also reserved the right to argue for an alternative sentence.
Blunck motioned for a downward durational departure asserting many mitigating factors including: (1) He took responsibility for his conduct and (2) the crime was a result of his drug addictions.
At his sentencing hearing, Blunck argued his 2008 sentence of 214 months should be reduced because the underlying sentence in that case is substantial. Additionally, he requested the sentence in this case to be imposed concurrent to the 2008 case. Blunck claimed he had been successful on probation by attending and completing anger management and sex offender treatment while remaining sober for 6 years before he relapsed. He also testified he wanted to go back into treatment.
The district court granted a durational departure in accordance with the plea agreement. The district court denied Blunck's motion to modify his 2008 sentence. The district court ordered the sentences in this case to run consecutive to the 2008 sentence. Blunck's total sentence in this case was 120 months' imprisonment with the sentence for Count 2 and Count 3 ordered to be served concurrently with Count 1.
Blunck timely appealed. Blunck argued that the district court erred because its departure did not reduce the length of his sentence enough, but another panel of this court dismissed the issue under State v. Crawford, 21 Kan.App.2d 169, 897 P.2d 1041 (1995). However, our Supreme Court expressly overruled Crawford in Looney, 299 Kan. at 906, holding that appellate courts have jurisdiction to hear such an issue under K.S.A. 21–4721(a). Our Supreme Court granted Blunck's petition for review and remanded his case back to this court citing Looney.
Blunck's downward durational departure of 120 months' imprisonment was below the presumptive sentence range for the crime of manufacturing a controlled substance with his criminal history score of A. See K.S.A.2013 Supp. 21–6805.
Analysis
Did the District Court Abuse its Discretion by Failing to Grant a Further Durational Departure?
Blunck argues that the district court abused its discretion when it failed to grant him a further durational departure.
The standard of review on 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).
Additionally, a departure from the presumptive guidelines sentence is permissible if the judge “finds substantial and compelling reasons” to depart after reviewing the mitigating circumstances. K.S.A.2013 Supp. 21–6815(a). 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 its oral decision, the district court stated that Blunck's sentences should be run consecutive to each other because a person who is on felony probation is expected to be on their best behavior and not committing new felonies. The district court stated,
“But making that decision, knowing that you've got 214 months hanging over your head and just what a terrible decision that is, you need to have been a model citizen to have earned the break you got, and you were not a model citizen. Getting involved in not only using it, but making it, having that child being endangered in the process.”
The district court further stated,
“It's still an awful lot of time, but he really dug himself this hole, and he had the opportunity to not do that. And just having the meth lab with a child around's bad enough, but doing it while you're on probation from an incredible break at probation from a presumptive imprisonment on a class—or severity level 1 felony, I think that deserves a long sentence.”
At sentencing, the district court considered the circumstances argued by Blunck and his attorney and those argued by the State. The district court reasonably concluded Blunck had provided substantial and compelling reasons to justify a departure to 120 months' imprisonment—but no further. The district court's decision was not arbitrary, fanciful, or unreasonable and was not based on an error of fact or law; thus, it did not constitute an abuse of discretion. We cannot say that no reasonable person would agree with the decision to deny Blunck's departure motion below 120 months when this crime was committed while he was on probation in his 2008 cases. See State v. Florentin, 297 Kan. 594, 603, 303 P.3d 263 (2013). Did Sentencing Blunck Based on His Prior Criminal History Violate His Sixth and Fourteenth Amendment Rights Under Apprendi?
Blunck contends that the district court erred when it relied on his criminal history to elevate his sentence without requiring the State to prove his criminal history to a jury beyond a reasonable doubt. Blunck concedes that this issue has been adversely decided against him in State v. Ivory, 273 Kan. 44, 45–48, 41 P.3d 781 (2002), but wishes to preserve the issue for federal review. Because there is no indication the Kansas Supreme Court is departing from this position, this court is duty bound to follow established precedent. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). The district court properly used Blunck's criminal history to establish his sentence.
Affirmed.