Opinion
110,819.
12-12-2014
STATE of Kansas, Appellee, v. Michael TRAUTLOFF, Appellant.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., LEBEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
LEBEN, J.
After Michael Trautloff pled guilty to robbery and aggravated endangering of a child, he moved for a dispositional-departure sentence to probation; Trautloff's presumptive sentence under Kansas sentencing guidelines was prison. At sentencing, the district court granted a durational departure, giving him a shorter sentence than the guidelines called for, but rejected departure to probation.
Trautloff appeals, arguing that he should have received probation because he had accepted responsibility for his actions and needed inpatient drug treatment. But the sentencing decision is a discretionary call for the district court, and its decision may not be reversed in this case unless no reasonable person could agree with it. Trautloff was convicted here of robbery and aggravated child endangerment, and he had a significant number of past offenses extending over a 17–year period. A reasonable person could agree with the district judge that a prison sentence—the presumptive sentence under our sentencing guidelines—was appropriate. We therefore affirm the district court's judgment.
Factual and Procedural Background
In early March 2013, Crystal Malone allowed Trautloff, her husband's friend, to accompany her and her 4–year–old son, Conner Solis, to the liquor store. Malone left Trautloff and Solis in the car while she went inside; when she came back to the car, she discovered Trautloff “freaking out about the man that had walked out of the store at the same time she did.” At that time, according to her statements to police, Trautloff brandished a hatchet or hammer and threatened to kill Malone if she did not exit the car. Malone grabbed Solis and got out of the car; Trautloff drove off in it.
Based on this incident, the State charged Trautloff with aggravated robbery and aggravated endangering of a child. In a plea bargain, the State reduced the first charge to simple robbery, and Trautloff pled guilty to that offense and aggravated child endangerment. The plea agreement provided that the State could recommend that the district court send Trautloff to prison but that Trautloff was “free to argue for any lawful alternative disposition .”
The district court accepted Trautloff's pleas and convicted him of robbery and aggravated endangering of a child. Before sentencing, Trautloff filed a motion asking that the court suspend any prison sentence and instead impose probation, with requirements for inpatient drug treatment, community service, and electronic monitoring. In his motion, Trautloff discussed his newfound motivation to become and remain sober from drugs and alcohol and said he recognized the severity of his offense.
At sentencing, the State asked that the district court sentence Trautloff to prison for 122 months, the lowest sentence in the applicable range provided by our sentencing guidelines. Trautloff requested a dispositional departure to probation.
Trautloff's attorney argued that Trautloff “took responsibility in these cases” by entering a plea and that he would be able to get “the help he needs” through community-based resources rather than through incarceration. He highlighted a drug-abuse evaluation Trautloff had completed (which is not in our record) and emphasized Trautloff's long history of drug abuse and his need for treatment to address that addiction. The attorney said that Trautloff had recognized this need himself and had in fact requested inpatient treatment, demonstrating a motivation to become sober. He argued that since “there is no treatment in prison,” Trautloff's ability to recover from his addiction would be limited there.
When Trautloff spoke directly to the court, he echoed his attorney's remarks: “I've got a drug problem, pointblank. I've never been in treatment, never been productive out there to say. I mean, everything I did was for dope. Every crime I've ever committed was for dope.” He also acknowledged that treatment was “actually gonna be hard,” but he requested the district court grant him an opportunity to attempt treatment in lieu of imprisonment.
The prosecutor argued that Trautloff's history suggested that “this [case] is not the defendant's first opportunity to try to get sober” and that both his past and potential future cases “could be under dangerous circumstances, especially if the defendant's under the influence.” The State requested that the court impose the presumptive prison sentence rather than the requested departure to probation. Trautloff's attorney responded by saying that he did not believe Trautloff had ever entered treatment before and that Trautloff was “somebody whose addiction has just been pretty much out of control” and who needed help “to kick this habit and become a productive member of society.”
The district court denied the dispositional departure and sentenced Trautloff to prison. The court did grant some relief: it granted a durational departure down to 98 months, rather than imposing the guideline sentence, which would have been somewhere from 122 to 136 months. The court gave Trautloff a 6–month sentence on the aggravated child-endangerment conviction but ordered that it run concurrently with the 98–month robbery sentence. In explaining why it denied the dispositional departure to probation, the district court said that “the notion that [Trautloff's] criminal history, coupled with the actions in the robbery case, coupled with a 20–year addiction [does] not justify imprisonment” was “simply not an honest, fair, and objective look at the facts.” Trautloff has appealed his sentence to this court.
Analysis
The sole issue on appeal is whether the district court erred in rejecting Trautloff's motion for a dispositional departure to probation. Trautloff contends that he provided substantial and compelling reasons sufficient to justify the departure; the State responds that the district court's action in granting only a durational departure was not unreasonable.
Per K.S.A.2013 Supp. 21–6820(a), departure sentences are subject to appeal either by the defendant or the State. This statute applies to all departure sentences regardless of whether they are favorable to the defendant. See State v. Looney, 299 Kan. 903, 908, 327 P.3d 425 (2014). A challenge to the extent of a departure is reviewed for abuse of discretion. See State v. Spencer, 291 Kan. 796, 807–08, 248 P.3d 256 (2011) ; State v. Cochran, No. 110,019, 2014 WL 4080162, at *2–3 (Kan.App.2014) (unpublished opinion) (reviewing district court's decision on a departure motion under the abuse-of-discretion standard). A district court abuses its discretion only when it bases its decision on an error of fact or law or when its decision is so unreasonable that no reasonable person would agree with it. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
The district court is only permitted to depart from a presumptive sentence if it first finds substantial and compelling reasons to depart. K.S.A.2013 Supp. 21–6815(a). Our sentencing statutes provide a list of nonexclusive mitigating factors that the district court may consider. K.S.A.2013 Supp. 21–6815(c)(1). A sentencing court may also consider nonstatutory factors, provided that those factors are supported by evidence “and the use of the factors would be consistent with the intent and purposes of the sentencing guidelines.” State v. Blackmon, 285 Kan. 719, 725, 176 P.3d 160 (2008). As for what constitutes substantial and compelling reasons, our Supreme Court has explained: “To be substantial the reason must be real, not imagined, and of substance, not ephemeral. To be compelling the reason must be one which forces the court, by the facts of the case, to abandon the status quo and to venture beyond the sentence that it would ordinarily impose.” 285 Kan. at 724.
On appeal, Trautloff highlights three nonstatutory factors he believes constitute substantial and compelling reasons to depart here: (1) his willingness to accept responsibility for his actions; (2) his need for inpatient drug treatment; and (3) the availability of community-based resources to help him become sober. But these were not the only background facts in Trautloff's case.
Trautloff's convictions here were for robbery and aggravated child endangerment. He admitted at his plea hearing that he had taken Malone's car by force or threat of bodily harm and that he had placed her 4–year–old son, Conner, in a situation in which his life, body, or health was in danger. According to a police detective's affidavit in the criminal-case file, Malone told police that Trautloff had threatened her with a hatchet, forcing her to grab her son and leave the car. In addition, Trautloff had a criminal-history score of “A,” the most serious. He had 27 other convictions from 1997 through 2013, including one for attempted robbery.
A sentencing court is free to consider a broad range of information about the defendant at sentencing. See Williams v. New York, 337 U.S. 241, 246–51, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) ; LaFave, Israel, King & Kerr, Criminal Procedure § 26.5(a), p. 1275 (Hornbook Series, 5th ed.2009) ; State v. Williams, No. 109,212, 2014 WL 1096760, at *1, 4 (Kan.App.2014) (unpublished opinion), petition for rev. filed April 4, 2014. Based on the facts we have set out in this opinion, a reasonable person could conclude that Trautloff should have been given the presumptive sentence and sent to prison, not given probation.
The district court's judgment is affirmed.