Opinion
110,881.
11-07-2014
STATE of Kansas, Appellee, v. Anita Shanail CLARK, Appellant.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. David Maslen, county attorney, and Derek Schmidt, attorney general, for appellee.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.
David Maslen, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Anita Shanail Clark appeals her sentence for one count of conspiracy to cultivate, distribute, or possess hydrocodone, a controlled substance. Clark argues that the district court erred when it denied her motion for a dispositional departure and only partially granted her motion for a durational departure. She also argues that the district court violated her constitutional rights when it sentenced her based on a criminal history that was not submitted to a jury and proved beyond a reasonable doubt. For the reasons explained herein, we affirm the district court's judgment.
On December 4, 2012, the State charged Clark with one count of driving while her license was canceled, suspended, or revoked; one count of cultivation, distribution, or possession with intent to distribute hydrocodone, a controlled substance; and one count of cultivation, distribution, or possession with intent to distribute alprazolam, a controlled substance. Later, the complaint against Clark was amended to include two additional counts of possession of a controlled substance without affixing a drug tax stamp.
Following plea negotiations, Clark agreed to plead no contest to a single count of conspiracy to distribute hydrocodone, a drug severity level 3 felony. In return, the State agreed to dismiss all other charges. The parties also agreed that Clark would be allowed to file departure motions and that the State would be permitted to oppose such motions. At a plea hearing on July 2, 2013, the district court accepted Clark's no-contest plea to one count of conspiracy to distribute hydrocodone.
Pursuant to the presentence investigation report, Clark's criminal history score was E, and she faced a presumptive sentence of 49–53–56 months' imprisonment. She filed a departure motion requesting that the district court grant a durational departure to the sentencing range of a drug severity level 5 felony, i.e., 18–20–22 months. In addition, she asked that the district court grant a dispositional departure and sentence her to probation rather than prison. In the motion, Clark cited several mitigating factors, including her supportive family members, her employment, her lack of prior person felony convictions, her desire to treat her alcohol and drug abuse, the low degree of harm resulting from her offense, and the fact that she does not pose a threat to the community.
At the sentencing hearing on August 15, 2013, the district court denied Clark's motion for a dispositional departure, noting that she had 49 entries in her criminal history report. However, the district court partially granted her request for a durational departure and sentenced her to 41 months in prison. Clark timely appealed her sentence.
On appeal, Clark first argues that the district court erred when it denied her motion for a dispositional departure and only partially granted her motion for a durational departure. Because Clark received a partial departure sentence, we have jurisdiction to consider her claim on appeal. See K.S.A.2013 Supp. 21–6820(a) ; State v. Looney, 299 Kan. 903, 908–09, 327 P.3d 425 (2014).
This court reviews a district court's decision regarding the extent of a departure sentence under an abuse of discretion standard. State v. Spencer, 291 Kan. 796, 807, 248 P.3d 256 (2011). An abuse of discretion only occurs when a judicial action is arbitrary, fanciful, or unreasonable; based on an error of law; or based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). As the party asserting error, the burden is on Clark to prove an abuse of discretion has occurred. See State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
Generally, a sentencing judge is required to impose the presumptive sentence provided by the sentencing guidelines unless the judge finds substantial and compelling reasons to impose a departure sentence. K.S.A.2013 Supp. 21–6815(a). On appeal, Clark argues the same mitigating factors as she argued in district court. She argues that she accepted responsibility for her crime, she was suffering from a drug addiction for which she also was seeking treatment, she was struggling with the death of her son, she was employed for the first time in her life, and she had minor children for which she was the sole provider. Clark also argues that she saved the State time and money by pleading no contest rather than by taking her case to trial.
The district court granted a downward durational departure sentence of 41 months in prison instead of the presumptive prison sentence of 49 to 56 months. In denying the request for a dispositional departure, the district court noted that Clark had 49 entries in her criminal history report, indicating that she was not amenable to probation. The district court showed leniency by reducing the length of Clark's prison sentence to 41 months, but Clark fails to establish how the district court abused its discretion by not departing further. Given Clark's lengthy criminal history and the seriousness of her convictions, a reasonable person could agree with the district court's sentence. As a result, the district court did not abuse its discretion when it only departed to a 41–month prison sentence.
Clark also argues that the district court violated her constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it sentenced her based on a criminal history that was not proven to a jury beyond a reasonable doubt. She concedes that the Kansas Supreme Court previously rejected this claim in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2001). The Court of Appeals is duty 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). There is no indication that our Supreme Court is departing from its holding in Ivory. Thus, Clark's claim fails.
Affirmed.