Opinion
112,301.
08-14-2015
STATE of Kansas, Appellee, v. Jeffers S. CARPENTER, Appellant.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant. Jonathon L. Noble, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Jonathon L. Noble, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., LEBEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jeffrey S. Carpenter appeals from the sentence imposed by the district court after his conviction of violating the Kansas Offender Registration Act (KORA). He argues that the district court abused its discretion by denying his motion for a dispositional departure to probation. He also alleges that the district court violated his constitutional rights by calculating his sentence based in part on his criminal history.
We find no abuse of discretion and no constitutional violation and, accordingly, affirm the sentence.
Factual and Procedural Background
In May 2014, pursuant to a plea agreement in which the State agreed to dismiss five other charges and not to oppose a durational departure sentence of 20 months' imprisonment, Carpenter pled nolo contendere to one count of violating KORA. The district court accepted the plea and found Carpenter guilty. The presentence investigation report calculated Carpenter's criminal history score as A, meaning the presumptive sentence for his conviction was 40–43–46 months' imprisonment.
Carpenter subsequently filed a motion for departure. He acknowledged that due to his previous conviction of indecent solicitation of a child, he was required under KORA to register for 10 years. He argued that the following substantial and compelling reasons existed for the district court to impose a departure sentence to probation instead of the presumptive imprisonment: (1) Carpenter had not had a felony conviction in 12 years; (2) he had not had a similar or related charge and had complied with all registration requirements for over 10 years; (3) he has four children and two “in the community” that rely on him for support; (4) the degree of harm was less than typical; (5) his lack of coping mechanisms and his diagnosed mental disorders hindered his capacity for judgment; (6) his need for substance addiction treatment supports a departure sentence; and (7) his impressive employment record. In the alternative, Carpenter requested that the district court lessen the duration of any term of imprisonment.
The district court sentenced Carpenter on July 10, 2014. At the hearing, Carpenter submitted into evidence a drug and alcohol evaluation. He also reasserted the factors in his departure motion, emphasizing (1) that he had not instigated the indecent solicitation of a child from which his registration obligation stemmed, (2) that crime did not involve an unwilling participant, and (3) Carpenter did not know he was committing the crime. He explained that he failed to register in 2013, after 10 years of compliance, because he began a new career as a mixed martial arts fighter and was struggling with substance abuse. As promised in the plea agreement, the State did not oppose a downward durational departure to 20 months' imprisonment.
Carpenter also personally addressed the court, acknowledging and taking responsibility for his failure to register. He asked the district court for a second chance. Although the court denied Carpenter's request for a dispositional departure, it granted the alternative request for a durational departure, sentencing him to only 20 months' imprisonment. In denying his motion for a dispositional departure, the district court noted Carpenter's criminal history and stated that Carpenter's substance abuse problems should not have kept him from registering. The district judge concluded: “The Court is of the opinion that based upon the criminal history and the continued arrests of the defendant that the defendant should serve the 20–month sentence, so I'm not going to grant probation.” Carpenter timely appealed.
The District Court Did Not Abuse Its Discretion by Denying Dispositional Departure.
In his first issue on appeal, Carpenter argues that the district court erred in denying his motion for dispositional departure because there were substantial and compelling reasons to grant it. Carpenter properly preserved this issue for appeal by raising it in the district court, and this court has jurisdiction over the issue pursuant to State v. Looney, 299 Kan. 903, 906–10, 327 P.3d 425 (2014).
This court reviews the extent of a district court's departure from a presumptive sentence for 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, 808, 248 P.3d 256 (2011). A district court abuses its discretion only when it bases its decision on an error of fact or law or the decision is arbitrary, fanciful, or unreasonable. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). As the party asserting error, Carpenter bears the burden of establishing an abuse of discretion. See State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
Under K.S.A.2014 Supp. 21–6815(a), a district court must impose a presumptive sentence unless it finds substantial and compelling reasons to depart.
“[I]n order for a mitigating factor to be substantial, ‘the reason must be real, not imagined, and of substance, not ephemeral.’ [Citation omitted.] In order to be compelling, the mitigating factor ‘must be one which forces the court, by the facts of the case, to abandon the status quo and to venture beyond the sentence that it would ordinarily impose. [Citation omitted.]” State v. Hines, 296 Kan. 608, 616, 294 P.3d 270 (2013).
K.S.A.2014 Supp. 21–6815(c)(l) sets forth a nonexclusive list of mitigating factors a district court may consider when determining whether such reasons exist. The district court may also consider pertinent nonstatutory factors when considering a departure sentence, as long as those factors are consistent with the underlying principles of the Revised Kansas Sentencing Guidelines Act (RKSGA). See State v. Bird, 298 Kan. 393, 397, 312 P.3d 1265 (2013). Carpenter argues that his motion set forth substantial and compelling reasons for a dispositional departure.
In his brief, Carpenter reiterates the considerations set forth in his written motion and in his testimony at the sentencing hearing, noting also that he had been granted a furlough while in jail and had complied with all conditions of that furlough. It is true that Carpenter presented some legitimate mitigating factors that could have supported a dispositional departure. “But even though there may be mitigating factors, a district court is not required to depart simply because a mitigating factor exists.” State v. Rochelle, 297 Kan. 32, 45, 298 P.3d 293, cert. denied 134 S.Ct. 270 (2013).
Before denying Carpenter's motion, the district court noted that the original presumptive sentence for each conviction was up to 46 months in prison, and the State had already agreed to a reduction to 20 months' imprisonment. Moreover, Carpenter had been arrested in 2012, 2010, 2008, 2007, and 2006. Although those were all misdemeanor arrests, the court felt the continuing chain of arrests justified his not granting Carpenter probation. In addition, as stated above, a though the district court acknowledged Carpenter's drug abuse issues, it did not believe that those issues stopped Carpenter from registering.
Considering Carpenter's asserted mitigating factors in light of his criminal history and history of arrests, this court cannot say that the district court's denial of Carpenter's request for a dispositional departure was an abuse of discretion. It was not based on an error of law or fact, nor was it a decision with which no reasonable person could agree. Moreover, there were no mitigating factors here that rose to the level of being compelling in that they should have “force[d] the court, by the facts of the case, to abandon the status quo and to venture beyond the sentence that it would ordinarily impose.” See Hines, 296 Kan. at 616.
The District Court Did Not Err By Determining the Sentence Based on Carpenter's Criminal History.
In his second issue, Carpenter argues that the district court violated his constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution as recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it sentenced him based in part on his criminal history without first requiring the State to prove the criminal history beyond a reasonable doubt to a jury.
Carpenter concedes that the Kansas Supreme Court has previously rejected his argument; he merely raises it to preserve it for federal review. See State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its earlier position. See State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). There is no such indication here. Therefore, the district court did not err when it considered Carpenter's criminal history when determining the sentence to be imposed.
Affirmed.