Opinion
110,473.
07-10-2015
STATE of Kansas, Appellee, v. Garry L. SAMMONS, Appellant.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Jacob G. Fishman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
Jacob G. Fishman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Garry L. Sammons appeals the district court's denial of his motion for a dispositional sentencing departure in two separate cases which have been consolidated for appeal. Initially, this court dismissed the appeal for lack of jurisdiction, finding that Sammons could not appeal the denial of his departure motion. The Kansas Supreme Court granted review and remanded to this court for reconsideration in light of State v. Looney, 299 Kan. 903, 299 Kan. 903, 327 P.3d 425 (2014). Upon considering the merits of Sammons' appeal, we conclude the district court did not abuse its discretion in denying his motion for dispositional departure.
Procedural background
On April 2, 2013, Sammons pled guilty to one count of possession of methamphetamine in 12CR1187. That same day, he pled guilty to burglary and theft in 13CR161. Sammons was on conditional release in 12CR1187 when he committed the crimes in 13CR161. Because Sammons was in criminal history category A, his standard presumptive sentence was 40 months' imprisonment for the methamphetamine conviction and 32 months' imprisonment for the burglary conviction. As part of Sammons' plea agreement, the State recommended that the district court grant a downward durational departure and impose a sentence of 24 months' imprisonment in each case to be served consecutively. Pursuant to the plea agreement, neither party would request probation.
On May 15, 2013, the district court conducted Sammons' sentencing hearing for both cases. During the hearing, Sammons asked to address the court and was allowed to do so. He used this opportunity to move for a dispositional departure to probation. Sammons argued that most of his prior crimes were more than 20 years old and that he was taking full responsibility for his actions that led to his current convictions. Defense counsel informed the district court that Sammons' oral departure motion was not part of the plea agreement and expressed his own unwillingness to violate the agreement with the State. The district court continued the sentencing hearing in order to allow Sammons to file a formal motion for dispositional departure.
After the initial sentencing hearing, Sammons filed a pro se motion requesting a dispositional departure to probation. The State filed a motion to deny departure or, in the alternative, to set aside the plea based on Sammons' violation of the plea agreement.
On July 1, 2013, the district court reconvened Sammons' sentencing hearing. After hearing Sammons' arguments for dispositional departure, the district court denied the motion and imposed sentence pursuant to the terms of the original plea agreement. The district court sentenced Sammons to 24 months' imprisonment for possession of methamphetamine in 12CR1187. The district court sentenced him to 24 months' imprisonment for burglary and a concurrent 12 months for theft in 13CR161. The district court ordered the sentences in each case to run consecutively. Sammons timely appealed.
This court initially dismissed Sammons' appeal for lack of jurisdiction, finding that the denial of a motion for dispositional departure sentence was not appealable pursuant to K.S.A.2014 Supp. 21–6820(c). Our Supreme Court granted review and remanded to this court for reconsideration in light of Looney, 299 Kan. at 909–10, 327 P.3d 425.
Analysis
Sammons argues that the district court abused its discretion by refusing his request for a dispositional departure to probation in light of his age, his mental and physical health issues, his desire to obtain treatment for his substance abuse issues, and the age of his prior convictions. The State argues that the district court adequately considered Sammons' motion and did not abuse its discretion in denying probation.
An appellate court reviews the extent of a district court's departure sentence for abuse of discretion. State v. Floyd, 296 Kan. 685, 687, 294 P.3d 318 (2013). The party asserting an abuse of discretion bears the burden of showing it. State v. Wells, 289 Kan. 1219, 1226, 221 P.3d 561 (2009). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
As a threshold matter, the State again contends that this court lacks jurisdiction to hear Sammons' appeal. It cites K.S.A.2014 Supp. 21–6820(c)(2), which states that an appellate court shall not review “any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.” However, the State's argument ignores the fact that the district court allowed Sammons to file a dispositional departure motion that ultimately was denied. The original plea agreement was basically taken off the table when Sammons was allowed to argue for probation. Therefore, K.S.A.2014 Supp. 21–6820(c)(2) is inapplicable here.
Turning to the merits of the case, Sammons argues that the district court abused its discretion in denying his motion for a downward dispositional departure to probation based on his age, his mental and physical health, his desire to obtain treatment for his substance abuse issues, and the age of his prior convictions. He acknowledges that a “majority” of these grounds constitute nonstatutory mitigating factors, but he contends they are nevertheless substantial and compelling reasons that justify a departure.
Unless a sentencing judge finds “substantial and compelling reasons to impose a departure sentence,” the judge “shall impose the presumptive sentence” under the Kansas Sentencing Guidelines Act. K.S.A.2014 Supp. 21–6815(a).
“Whether a mitigating factor is ‘ “substantial” ‘ depends on whether it is ‘ “something that is real, not imagined; something with substance and not ephemeral,” while ... “ ‘compelling’ implies the court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary.' “ [Citations omitted.] But mitigating circumstances do not per se constitute substantial and compelling reasons for departure. [Citation omitted.]” Floyd, 296 Kan. at 688, 294 P.3d 318.
Here, the district court considered the mitigating circumstances proffered by Sammons and concluded that they were neither substantial nor compelling. As the district court pointed out, Sammons has a criminal history score of A and has been in and out and prison since 1982. Despite numerous opportunities to address and treat his mental health and substance abuse issues, Sammons failed to do so. Sammons was on conditional release in 12CR1187 when he committed the burglary and theft in 13CR161. Based on all these facts, the district court concluded that Sammons was not amenable to nonprison sanctions. We conclude that the district court did not abuse its discretion in denying Sammons' motion for dispositional departure to probation.
Affirmed.