Opinion
111,557.
04-24-2015
STATE of Kansas, Appellee, v. Thomas L. COOLEY, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Thomas L. Cooley appeals his sentence following his convictions ofpossession of methamphetamine, possession of paraphernalia, and misdemeanor theft. Over the State's objection, we granted Cooley's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66).
On December 17, 2013, Cooley pled guilty to one count each of possession of methamphetamine, possession of paraphernalia, and misdemeanor theft. On January 13, 2014, the district court granted a durational departure and imposed a controlling sentence of 13 months' imprisonment from the presumptive sentence of 37–40–42 months' imprisonment for the primary offense of conviction. The district court denied Cooley's request for a dispositional departure to probation. Cooley time appealed.
In his motion for summary disposition, Cooley argues that the district court abused its discretion by not departing to probation. He cites State v. Flores, 268 Kan. 657, 658, 999 P.2d 919 (2000), in accordance with his apparent concession that this court lacks jurisdiction to review a presumptive sentence. But as the State points out in its response to the motion for summary disposition, this court has jurisdiction to review Cooley's sentence because a durational departure was granted. See K.S.A.2014 Supp. 21–6820(d) ; 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 for abuse of discretion. State v. Spencer, 291 Kan. 796, 807, 248 P.3d 256 (2011). A district court abuses its discretion when it “makes an error of law, bases the decision on facts not supported by the evidence, or makes a decision that is arbitrary, fanciful, or unreasonable. [Citation omitted.]” State v. Armstrong, 299 Kan. 405, 442, 324 P.3d 1052 (2014). Because he asserts the error, Cooley bears the burden to prove an abuse of discretion. See State v. Eddy, 299 Kan. 29, 33, 321 P.3d 12 (2014).
K.S.A.2014 Supp. 21–6815(a) requires a sentencing judge to “impose the presumptive sentence provided by the sentencing guidelines unless the judge finds substantial and compelling reasons to impose a departure sentence.” Here, the district court showed leniency by granting Cooley a durational departure. Cooley declined to submit a brief to this court and has offered no argument explaining how the district court abused its discretion by not also granting a dispositional departure to probation. Therefore, Cooley has failed to meet his burden to show an abuse of discretion and this challenge to his sentence fails. See State v. Bowen, 299 Kan. 339, 355–56, 323 P.3d 853 (2014) (when a litigant fails to adequately brief an issue it is deemed abandoned).
Affirmed.