Opinion
No. 108,251.
2014-12-19
STATE of Kansas, Appellee, v. Chad Everett CLINE, Appellant.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge.Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., McANANY, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Chad Everett Cline appeals from his sentencing, claiming that the district court erred in not granting a dispositional departure or granting him a greater durational departure.
Factual and Procedural Background
Cline pled guilty to one count of possession of methamphetamine, a severity level 4 drug felony. Prior to his sentencing, he filed a motion for a dispositional and a durational departure. In his motion Cline cited several mitigating factors, including: He was currently scheduled to access drug treatment in the community, his only nonaggregated person felony occurred when he was 15 years old, he took responsibility for his actions by pleading guilty and not wasting the State's resources, the amount of drugs on his person at the time of his arrest was negligible, he had taken steps toward rehabilitation and sobriety, and he was starting a new family. Cline's criminal history score was B.
At sentencing, Cline reiterated the arguments made in his motion, also adding that his partner was due to have his child at the end of the month and he had developed a talent for art which he used to cope with his emotional issues. Cline also noted that he already had inpatient treatment set up that he would attend if given probation and his overall criminal history comprised primarily of misdemeanors.
The State objected to the motion, noting that Cline had 31 previous convictions on his presentencing investigation (PSI) report and, since 1987, the longest he had gone without a conviction was less than 4 years. The State also noted that since the date of the instant offense, Cline had added seven additional convictions and had failed to comply with his bond conditions twice in the instant case.
The district court denied the motion for dispositional departure, finding that given Cline's criminal history the district court did not believe he would be amendable to probation, that Cline had been through drug treatment before, and that further treatment could not be guaranteed to work. The district court did find substantial and compelling reasons to grant a durational departure, notably that Cline's only other person felony was more than 15 years old. Therefore, the district court granted Cline a durational departure of 29 months, the standard sentence being 34 months' imprisonment.
Cline timely appealed his sentence.
In December 2012, this court summarily affirmed in part and dismissed in part Cline's appeal. He filed a petition for review, which our Supreme Court granted August 29, 2014; the court vacated the dismissal in part in light of State v. Looney, 299 Kan. 903, 327 P.3d 425 (2014), and remanded the case to this court for consideration of Cline's challenge to his sentence.
Analysis
Did the district court err in denying Cline's motion for dispositional departure and not granting him a greater durational departure?
Cline's first claim of error is that the district court erred in not granting him a dispositional departure and in not granting him a greater durational departure.
We review the extent of a departure sentence for an abuse of discretion. State v. Favela, 259 Kan. 215, 244, 911 P.2d 792 (1996). A district court abuses its discretion if the action is “arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court,” or is based either on an error of fact or law. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). In the context of a departure motion, our Supreme Court has stated:
“Under an abuse of discretion standard of review, the question is whether the extent of the sentencing court's durational departure is consistent with the ‘enacted purposes and principles of [the] sentencing guidelines' and ‘proportionate to the severity of the crime of conviction and the offender's criminal history.’ [Citation omitted.] ... If any reasonable person could agree [with the district court's action], the appellate court will not disturb the [district] court's decision.” Favela, 259 Kan. at 244.
Here, it cannot be said that any reasonable person would disagree with the district court. While it is true that Cline's last person felony was in 1997, he had 30 other convictions on his PSI. Also, while a great number of Cline's convictions were misdemeanors, they also included two domestic batteries, one simple battery, theft of property, driving while suspended, and interference with lawful occupation by acts of violence all since his arrest in 2007. Further, the fact that Cline had previously gone through drug treatment unsuccessfully, coupled with his bond violations and long criminal history, it is clear that the district court did not abuse its discretion in denying Cline's motion for dispositional departure. Given Cline's long criminal history, it cannot be said that the district court abused its discretion in not granting a further durational departure. Did the district court err in using Cline's prior convictions to increase his sentencing without proving the same to a jury beyond a reasonable doubt?
In his second point on appeal, Cline argues that the district court violated his constitutional rights as recognized in Apprendi v. New Jersey, 530 U.S. 446, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),. by using his criminal history for sentencing without the State being required to prove his history before a jury beyond a reasonable doubt creating an illegal sentence.
The question of whether a “sentence is illegal is a question of law over which [an appellate] court has unlimited review.” State v. Sims, 294 Kan. 821, 824, 280 P.3d 780 (2012).
In State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002), our Supreme Court rejected this argument. Our Supreme Court has held and, since Ivory has continued to adhere to this view. See State v. Benson, 295 Kan. 1061, 1068, 287 P.3d 927 (2012). Cline has recognized this, but he is merely wishing to exhaust his state remedies and preserve the issue for federal review.
Therefore, absent any argument or indication that our Supreme Court is abandoning this position, this court is duty bound to follow binding Supreme Court precedent under State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012).
Affirmed.