Opinion
108,925.
10-17-2014
STATE of Kansas, Appellee, v. J'Mario L. GASPER, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Following this court's memorandum opinion in State v. Gasper, No. 108,925, 2013 WL 5737356 (Kan.App.2011) (unpublished opinion), filed on October 18, 2013, J'Mario L. Gasper filed a petition for review, which was granted as to one issue on August 29, 2014. In light of its decision in State v. Looney, 299 Kan. 903, 327 P.3d 425 (2014), our Supreme Court vacated the portion of this court's memorandum opinion that dismissed a sentencing issue for lack of jurisdiction and remanded the matter for consideration of the only remaining issue on appeal: whether the district court abused its discretion by refusing to order Gasper's sentences to run consecutively. For the reasons explained herein, we affirm Gasper's sentence.
In 11 CR 1604, the State charged Gasper with violating the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. , to which he was subject due to his conviction for aggravated robbery in another case, 09 CR 2984. The district court revoked Gasper's probation in 09 CR 2984 due to multiple probation violations and ordered him to serve his original prison sentence. The two cases were consolidated on appeal.
In 11 CR 1604, Gasper entered into a plea agreement with the State in which he agreed to plead guilty to the registration violation in return for the State's recommendation that the sentencing court impose the mitigated sentence in the applicable sentencing guidelines gridbox and its recommendation that the court impose a prison sentence. The State also agreed to recommend that the sentence in this case run concurrent with Gasper's sentence in 09 CR 2984. Gasper was free to make other sentencing arguments to the court.
Gasper moved the sentencing court to make findings of substantial and compelling reasons to support a durational departure in his case and specifically requested the court make a finding that manifest injustice would result if the court applied the special rule applicable to those who commit a new felony while on felony probation, requiring consecutive rather than concurrent sentences be imposed. See K.S.A.2010 Supp. 21–4608(c). He also requested a reduced sentence in this case and requested that it run concurrent to his sentence in the case for which he had been on probation. Gasper argued that the substantial and compelling reasons supporting a departure sentence in this case were (1) he had demonstrated veracity by taking responsibility for his crime by admitting guilt in court; (2) an offender registration violation is a person felony in name only, and there is no victim in this case who suffered injury; (3) he would have the support of his fiancee, mother, friends, and other family upon an earlier-than-maximum release date; (4) he has a fiancee and four young children; (5) he is a native of Wichita with strong ties to the community that will help him when he is released from prison; and (6) he plans to attend college after he is released from prison. He also asserted that these six factors individually and collectively constitute reasons for the court to find manifest injustice would result from imposition of the special rule in this case.
At Gasper's sentencing hearing, the sentencing judge acknowledged, based on letters and statements of Gasper's family and friends, that there were many good things that could be said about Gasper as a person. But he went on to state that he was required by the law to impose a consecutive sentence in this case unless manifest injustice was shown based on the facts. The facts here had shown that Gasper received probation in 09 CR 2984 and was told there would be zero tolerance for violations thereof. Gasper had then absconded for a year and failed to comply with KORA, which led to the new felony conviction in this case. The sentencing judge said that he had listened closely to all of the reasons given to find manifest injustice here and the reasons given simply were not enough to meet the high standard. The judge did, however, determine that he could depart durationally from the sentencing guidelines, and he then imposed a downward durational departure sentence of 24 months' imprisonment in lieu of the minimum statutory 31 months' imprisonment. He ordered that this sentence be run consecutively to the sentence in 09 CR 2984 as required by statute.
Gasper sought review of the sentencing court's decision to impose consecutive sentences in 11 CR 1604, and we dismissed that portion of his appeal, stating that we did not have jurisdiction to consider an appeal from a felony committed on or after July 1, 1993, when the imposed sentence was within the presumptive sentence for the crime. See Gasper, 2013 WL 5737356, at *1.
After our decision on Gasper's appeal, the Kansas Supreme Court decided Looney, which held that all departure sentences are subject to appeal under K.S.A. 21–4721(a) —now K.S.A.2013 Supp. 21–6820(a) —unless appellate jurisdiction is divested by a more specific provision. 299 Kan. at 909, 327 P.3d 407. In light of this decision, we may now consider whether the district court erred by ordering Gasper's sentence in this case to run consecutively to his sentence in 09 CR 2984.
K.S.A.2010 Supp. 21–4608(c) states:
“Any person who is convicted and sentenced for a crime committed while on probation, assigned to a community correctional services program, on parole, on conditional release or on postrelease supervision for a felony shall serve the sentence consecutively to the term or terms under which the person was on probation, assigned to a community correctional services program or on parole or conditional release.”
This mandatory consecutive sentencing rule is tempered by K.S.A. 21–4720(a), which states in part: “The mandatory consecutive sentence requirements contained in subsections (c), (d) and (e) shall not apply if such application would result in a manifest injustice.” Whether a sentence is manifestly unjust must be determined on a case-by-case basis, under a “shocking to the conscience” standard. State v. Cramer, 17 Kan.App.2d 623, 636, 841 P.2d 1111 (1992), rev. denied 252 Kan. 1093 (1993). Stated otherwise, a sentence results in manifest injustice only when it “ ‘is obviously unfair and shocks the conscience of the court.’ “ Wilkinson v. State, 40 Kan.App.2d 741, 742, 195 P.3d 278 (2008) (quoting State v. Medina, 256 Kan. 695, Syl. ¶ 1, 887 P.2d 105 [1994] ), rev. denied 289 Kan. 1286 (2009).
Here, the sentencing judge could have imposed a concurrent sentence in this case only if he had found that the imposition of a consecutive sentence resulted in a sentence that was obviously unfair and shocked his conscience. But try as he might, the sentencing judge could not make that finding. The sentencing judge was in the best position to evaluate the sentencing factors involved; thus, we will not reverse his determination on the issue of manifest injustice unless we conclude the sentence is “obviously unfair” or “shocks the conscience of the court.” Cramer, 17 Kan.App.2d 623, Syl. ¶ 5, 841 P.2d 1111. Imposition of such a sentence would be an abuse of discretion.
Gasper was convicted of aggravated robbery and was found to have committed the offense with a deadly weapon in 09 CR 2984. He was granted probation despite the fact that the sentencing guidelines called for a presumptive term of imprisonment. He then violated numerous terms of his probation and absconded for approximately a year, and his disappearing act resulted in his felony conviction in this case for failing to comply with KORA. Gasper must now serve the original 61 months' imprisonment imposed in 09 CR 2984. Then in this case, the sentencing judge eliminated 7 months of the minimum required sentence for Gasper's conviction based on Gasper's family and community-related factors that the judge felt provided substantial and compelling reasons to depart.
But Gasper's sentence is not obviously unfair, nor does it shock our conscience. Gasper is going to serve a total of 85 months in prison for two serious person felony convictions, one of which involved a deadly weapon and constitutes the bulk of his prison term. While it is unfortunate that Gasper did not seize the opportunity he was granted in his first case, the fact remains that he did not. His consecutive sentences here are statutorily mandated, and the sentencing judge did not abuse his discretion by determining that Gasper did not demonstrate manifest injustice.
Affirmed.