Opinion
No. 106,303.
2012-05-11
STATE of Kansas, Appellee, v. Kordarius SCOTT, Appellant.
Appeal from Wyandotte District Court; Thomas L. Boeding, Judge. Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Michael C. Duma, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Thomas L. Boeding, Judge.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Michael C. Duma, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Kordarius Scott appeals his sentence following his no contest plea to one count of attempted aggravated robbery. Scott claims the district court erred by not granting a greater durational departure at sentencing. Scott also claims the district court erred by basing his sentence on his criminal history that was not proven to a jury beyond a reasonable doubt. We disagree with Scott on both claims, and we affirm the district court's judgment.
On May 13, 2010, the State filed an information charging Scott with one count of aggravated robbery, a severity level 3 person felony, and one count of aggravated burglary, a severity level 5 person felony. The information alleged that Scott and an unidentified companion used a handgun to take jewelry, a wallet, and other property from Jimmy Brock. On January 3, 2011, Scott pled no contest to an amended information charging him with one count of attempted aggravated robbery, a severity level 5 person felony. In exchange for Scott's plea, the State agreed to recommend a downward durational departure from the standard presumptive sentence of 52 months to 47 months' incarceration. The parties reserved all other rights to comment at sentencing.
On February 17, 2011, Scott filed a motion requesting a downward durational departure of 24 months' incarceration. In the motion, Scott articulated the following substantial and compelling reasons for departure: (1) His role in the crime was passive and minor because he did not personally possess a weapon; (2) his decision to plead no contest demonstrated his remorse for the crime and his desire to take responsibility for his actions; (3) the interest of society would be better served by releasing Scott from prison sooner so he could become gainfully employed; and (4) the interest of society would be better served by showing that the court system is “not only interested in [the] punishment of defendants, but in rehabilitation as well.”
On February 18, 2011, the district court denied Scott's departure motion and adopted the State's recommended durational departure. The district judge explained his decision as follows:
“Mr. Scott, ... I'm not going to [depart] farther down. I understand what you said and I've considered your arguments, but I'm also considering the fact the charge was amended from an aggravated robbery down. That was a significant departure from what the defendant could very well have been convicted of and then the plea agreement was to knock a little bit more time off of that sentence and that's what I'm basically going to do in this particular case.”
Accordingly, the district court sentenced Scott to 47 months' incarceration followed by 24 months' postrelease supervision. Scott timely appealed his sentence.
Scott contends that the district court abused its discretion when it granted the durational departure recommended by the State and denied his motion for a greater departure to a specified term of 24 months' incarceration. Scott contends that the extent of the durational departure is not consistent with the enacted purposes of the sentencing guidelines and proportionate to the severity of the crime or his criminal history and, as such, the district court abused its discretion because its decision was “arbitrary, fanciful, [and] unreasonable.” The State counters that the district court acted well within its discretion when it refused to grant Scott's requested departure.
The standard of appellate review of a departure sentence depends on the question raised. When the extent of a durational departure is challenged, “the appellate standard of review is abuse of discretion, measuring whether the departure is consistent with the purposes of the guidelines and proportionate to the crime severity and the defendant's criminal history.” State v. Spencer, 291 Kan. 796, 807–08, 248 P.3d 256 (2011). A judicial action constitutes an abuse of discretion,
“if [the] judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 U.S. 1594 (2012).
Scott specifically contends that no reasonable person would have adopted the district court's view that a greater departure was inappropriate because he did not personally possess a gun during the commission of the offense, he did not intend to rob the victim, and he took responsibility for his actions by initiating contact with detectives. However, contrary to Scott's contention, the departure sentence appears to be consistent with the objectives of the sentencing guidelines and proportionate to the severity level of the crime and Scott's criminal history. The “Kansas Legislature did not specifically provide statutory purposes and objectives for the sentencing guidelines.” State v. Favela, 259 Kan. 215, 233, 911 P.2d 792 (1996). However, the Kansas Supreme Court has articulated the following as the principles and purposes of the guidelines:
“ ‘• Prison space should be reserved for serious/violent offenders.
‘• The degree of sanctions imposed should be based on the harm inflicted,
‘• Sanction should be uniform and not related to socioeconomic factors, race, or geographic location.
‘• Penalties should be clear so everyone can understand exactly what has occurred after such are imposed.
‘• Incarceration should be reserved for serious violent offenders who present a threat to public safety.
‘• The State has an obligation to rehabilitate those incarcerated; but persons should not be sent to prison solely to gain education or job skills, as these programs should be available in the local community.
‘• The system must be rational to allow policymakers to allocate resources. [Citation omitted.]’ [Citation omitted.]
“Further, this court has recognized three legislative purposes of the guidelines—(1) reduce prison overcrowding, (2) protect public safety, and (3) standardize sentences so similarly situated offenders are treated the same in order to reduce the effects of racial or geographic bias. [Citation omitted.]” 259 Kan. at 233–34.
The district court premised its decision to deny Scott's requested departure on the fact that Scott was originally charged with aggravated robbery, a severity level 3 person felony, and aggravated burglary, a severity level 5 person felony, and on the court's unwillingness to allow Scott to receive an additional departure beyond what he received through the plea agreement and the associated amended information. Significantly, after the preliminary hearing, the district court found that there was probable cause to bind Scott over for trial on both the original charges. Additionally, not only does Scott have a criminal history score of D, the new offense was committed while Scott was on parole for a conviction of aggravated battery involving reckless conduct/great bodily harm.
Given the severity of the originally charged crimes, Scott's significant criminal history, and the fact that Scott committed the offense while on parole for another person felony, it is difficult to characterize the district court's decision as arbitrary, fanciful, or unreasonable. Moreover the evidence clearly suggests that Scott is a violent offender who constitutes a threat to public safety. Considering the purposes of the sentencing guidelines and the facts of this case, we conclude the district court did not abuse its discretion when it denied Scott's request for a greater durational departure.
Scott also argues that the district court violated his constitutional rights as set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by basing his sentence on his criminal history that was not proven to a jury beyond a reasonable doubt. As Scott acknowledges, this issue was previously decided and rejected by the Kansas Supreme Court in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Merrills, 37 Kan.App.2d 81, 83, 149 P.3d 869,rev. denied 284 Kan. 949 (2007). There is no indication that the Kansas Supreme Court is departing from its holding in Ivory. See State v. McCaslin, 291 Kan. 697, 731–32, 245 P.3d 1030 (2011) (affirming Ivory ). Thus, Scott's argument fails.
Affirmed.