Opinion
No. 107011.
2015-04-28
STATE of Kansas, Appellee, v. Tyrone Lee LOONEY, Appellant.
Appeal from Ford District Court; Daniel L. Love, Judge.Lydia Krebs, of Kansas Appellate Defender Office, for appellant.Jaskamal P. Dhillon, assistant county attorney, Natalie Randall county attorney, Derek Schmidt, attorney general, for appellee.
Appeal from Ford District Court; Daniel L. Love, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Jaskamal P. Dhillon, assistant county attorney, Natalie Randall county attorney, Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ATCHESON, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Tyrone Lee Looney pled guilty to manufacturing methamphetamine, a severity level 1 drug felony. Before sentencing, Looney moved for a dispositional departure to probation, citing his terminal illness and the State's agreement that he should he released on bond.
At sentencing. Looney testified that he had been diagnosed with Hepatitis C and had “one year to live.” Looney testified that he had applied for an experimental treatment that could significantly increase his odds of survival and that a drug company had approved him for such treatment. Looney provided some of his medical records to the district court. The medical records confirmed the diagnosis of Hepatitis C, but there was no information regarding the terminal nature of his illness or about the experimental treatment program. Looney did not provide any records from the liver specialists he said he was seeing. Finally, he made no claim that the Kansas Department of Corrections (KDOC) would be unable to accommodate his medical needs, and the State indicated that the KDOC would be able to attend to Looney's medical needs.
The district court denied probation but granted a durational departure to 72 months' imprisonment rather than imposing the presumptive sentence of 169 to 187 months.
On appeal Looney argues that the district court abused its discretion by refusing to consider his terminal illness and in finding that the KDOC could accommodate his medical needs in ruling on his departure motion. We review for any abuse of discretion. See State v. Jackson, 297 Kan. 110, 112–14, 298 P.3d 344 (2013). Discretion is abused when the sentencing statutes are not followed. See State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009).
Under K.S.A.2013 Supp. 21–6815(a). a departure sentence must be predicated on “substantial and compelling reasons.” “Substantial” means “ ‘something that is real, not imagined; something with substance and not ephemeral.’ “ State v. Seward, 289 Kan. 715, 722, 217 P.3d 443 (2009). “Compelling” means the court “ ‘is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary.’ [Citation omitted.]” 289 Kan. at 722.
K.S.A.2013 Supp. 21–6815(c)(1) sets forth a nonexclusive list of substantial and compelling mitigating factors as reasons for a departure. But the sentencing court “ ‘may consider other, nonstatutory factors when imposing a departure sentence as long as there is evidence in the record to support such factors and the use of the factors would be consistent with the intent and purposes of the sentencing guidelines.’ [Citations omitted.]” State v. Mines, 296 Kan. 608, 616, 294 P.3d 270 (2013).
K.S.A.2013 Supp. 21–6815(d) instructs that when a sentencing court determines aggravating or mitigating circumstances, the district court shall consider:
“(1) Any evidence received during the proceeding;
“(2) the presentence report;
“(3) written briefs and oral arguments or either the state or counsel for the defendant; and
“(4) any other evidence relevant to such aggravating or mitigating circumstances that the court finds trustworthy and reliable.”
Looney relies on Mines to support his argument that a nonstatutory factor may be considered by the district court to justify a departure. 296 Kan. 608, Syl. ¶ 3. See State v. Blackmon, 285 Kan. 719, 725, 176 P.3d 160 (2008). However, there is no evidence in the record to support Looney's assertion that the district court believed it did not have the authority to consider a nonstatutory factor.
Looney's claim is based on the sentencing judge's comment that he would receive adequate, or even superior, medical treatment in prison:
“In the Department of Corrections, they are required to provide treatment to inmates and I look at that as being a possibility that you don't have-if you're out, you're out. You're kind of at the whims and the will of medical labs and providers giving you free gratis-type of treatment. So in part because of that. I'm gonna order that you serve this sentence. I think you'll be eligible for treatment while in the Department of Corrections.”
Looney argues from this comment that the sentencing court erroneously relied on the nature or quality of care Looney would receive in prison in the absence of any evidence supporting such a finding.
Here, the district court did not rely solely on one factor. At the beginning of its ruling the court noted that it had weighed “all the possibilities” and referenced Looney's long history of drug abuse. In addition, it noted that a special rule applied because Looney was “involved with another felony at the time that this occurred.” The district court concluded that the KDOC would provide treatment for Looney's medical condition. In doing so the sentencing court considered Looney's testimony regarding his physical condition in determining whether there were substantial and compelling reasons to depart under K.S.A.2013 Supp. 21–6815(c)(1). Ultimately, the district court rejected Looney's physical condition as a substantial and compelling reason to depart. We find no error in the court's ruling.
Affirmed.