Opinion
No. 110,491.
2014-11-14
STATE of Kansas, Appellee, v. Terrence E. BOX, Appellant.
Appeal from Sedgwick District Court; John J. Kisner, Jr., Judge.Adam Stolte, of Kansas Appellate Defender Office, for appellant.Julia A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; John J. Kisner, Jr., Judge.
Adam Stolte, of Kansas Appellate Defender Office, for appellant. Julia A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Terrence Box appeals the trial court's judgment denying his request for a dispositional sentencing departure. He contends that the court abused its discretion by failing to understand the discretion it possessed. Finding no merit in this contention, we affirm.
On June 1, 2012, the State charged Box with possession of marijuana, a second offense, and driving a vehicle with an expired license tag. Box later entered plea negotiations and, on May 8, 2013, entered a plea of guilty to possession of marijuana. In exchange, the State agreed to dismiss the expired tag charge and to recommend the mitigated sentence within the applicable sentencing gridbox. The State reserved the right to request a prison disposition and oppose Box's requests for a departure sentence. After reviewing Box's understanding of his rights, the trial court accepted the plea.
On June 27, 2013, Box moved for a downward dispositional sentencing departure, citing his respectful demeanor during court proceedings, his lack of similar offenses in his criminal history, and the availability of community resources to assist the treatment of his marijuana addiction as mitigating factors. Box argued in support of his motion at the sentencing hearing held the same day. The trial court concluded that Box had presented substantial and compelling reasons to support a downward durational departure but held that Box's previous unsuccessful probation weighed against granting the request for a dispositional sentencing departure. The court imposed a prison term of 16 months, a substantial durational departure from the presumptive 37–42 month term. Did the Trial Court Abuse Its Discretion in Denying Box's Request for a Dispositional Sentencing Departure?
On appeal, Box does not challenge the trial court's durational departure from the presumptive guidelines sentence. Nevertheless, he contends that the trial court's refusal to grant his request for a dispositional departure was based on the court's misunderstanding of the extent of its discretion. Formerly, this court held that it lacked subject matter jurisdiction to consider a criminal defendant's appeal from a favorable sentencing departure, reasoning that the court would lack subject matter jurisdiction if the court had imposed a less favorable presumptive sentence. See State v. Crawford, 21 Kan.App.2d 169, 170–71, 897 P.2d 1041 (1995). Recently, our Supreme Court rejected this reasoning. It held that the pertinent statutory authority permits an appeal from any departure, regardless of how favorable it is to the appellant. See State v. Looney, 299 Kan. 903, 906–10, 327 P.3d 425 (2014). Accordingly, this court possesses subject matter jurisdiction to consider Box's appeal.
A sentencing court is obligated to impose one of the three presumptive sentences established by the applicable gridbox of the Revised Kansas Sentencing Guidelines Act unless the court finds substantial and compelling reasons to depart from the presumptive sentences. See K.S.A.2013 Supp. 21–6815(a), (c), and (d); State v.. Spencer, 291 Kan. 796, 804–05, 248 P.3d 256 (2011). Substantial refers to a basis for departure grounded in fact, not merely imagined. Compelling refers to the compelling nature of the basis for departure, establishing circumstances sufficiently distinguishable from the ordinary circumstances attending the crime to justify a greater or lesser penalty. See State v. Baptist, 294 Kan. 728, 734, 280 P.3d 210 (2012); State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008).
When reviewing a challenge to a sentencing departure, an appellate court applies different standards of review depending on the issue raised. Whether a basis for departure is substantial and compelling is a question of law subject to unlimited review. Whether the facts support a finding for departure is reviewed for substantial competent evidence to support the decision. Whether the court departed to an appropriate extent is subject to an abuse of discretion standard. Spencer, 291 Kan. at 807–08. Box challenges only the extent of the departure. Judicial discretion is abused when the decision is based on a misinterpretation of the law, is unsupported by substantial competent evidence, or is otherwise arbitrary, capricious, or unreasonable. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
In this case, the trial court recognized that the circumstances of Box's case warranted a departure for three reasons: (1) the need to support his family; (2) the age of his prior convictions; and (3) the unrelated nature of his prior convictions to the crime of conviction in this case. Neither Box nor the State challenges any of those departure factors. But the trial court also recognized that the crime of conviction held a presumptive prison disposition and that Box did not perform well when given probation in the past.
Box contends that the trial court failed to understand the extent of its discretion by stating:
“While the law doesn't make it real clear that there has to be, you know, which [departure factors] allow dispositional and which ones allow durational, you know, there is some—in reading the various cases and so forth, I think that there might be at least a little bit different view on what substantial and compelling means for dispositional departures as opposed to durational. I'm going to do what I think is the right thing here to do, although I don't think there is a right thing to do here today.”
Box argues that this statement demonstrates the trial court's confusion whether the same departure factors may be used to justify a dispositional and/or a durational sentencing departure. When read in context, however, the trial court's comments do not support Box's interpretation of them. Immediately after making the quoted statement, the trial court discussed Box's performance on a recent probation. The court noted that his performance was dismal. The court then concluded that Box's other reasons for departure did not warrant a dispositional departure to probation based on this recent poor performance.
Kansas appellate courts have previously upheld upward dispositional departures based upon evidence that a criminal defendant is not amenable to probation. See State v. Rodriguez, 269 Kan. 633, 647, 8 P.3d 712 (2000); State v. Snow, 40 Kan.App.2d 747, 756–57, 195 P.3d 282 (2008), rev. denied 289 Kan. 1285 (2009). Logically then, it is reasonable to conclude that evidence of a lack of amenability to probation precludes a dispositional departure from a presumptive prison sentence to probation, even if other factors otherwise warrant a durational departure. Under the circumstances of this case, the trial court did not abuse its discretion in concluding that the circumstances presented by Box warranted a durational departure but that his recent lack of success on probation did not warrant a dispositional departure.
Affirmed.