State v. Wilson

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 111,328

STATE OF KANSAS,
Appellee,

v.

MATTHEW DENNIS WILSON,
Appellant.


SYLLABUS BY THE COURT

1.
Generally, it is within the trial court's sound discretion to determine whether a
sentence should run consecutive to, or concurrent with, another sentence.

2.
Judicial discretion is abused if 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.

Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed February 27, 2015.
Judgment of the district court is affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, was on the brief for appellant.

Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, were on the brief for
appellee.
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The opinion of the court was delivered by

NUSS, C.J.: Matthew Wilson pled no contest to one count of first-degree
premeditated murder, two counts of attempted first-degree premeditated murder, and two
counts of aggravated battery in connection with a Manhattan shooting. The judge ordered
Wilson to serve a hard 25 life sentence for the murder and an additional 310 months for
the remaining crimes to run consecutive to his life sentence. He also imposed a period of
lifetime parole.

Wilson contends the judge abused his discretion in ordering his sentences to run
consecutively instead of concurrently. Because there was no abuse of discretion, we
affirm.

FACTS

Dustin Ferguson and Joel Solano lived in an apartment directly across the hall
from Wilson. Sometime around 2 a.m. on April 7, 2013, Ferguson returned to the
apartment with Michael Lowery, Alexya Mailea, and Christine Kim after a night out in
Aggieville. Around 4 a.m., Ferguson and his three guests opened the door to leave. They
were met in the hallway by Wilson who immediately started shooting at them with a
handgun.

Ferguson, Mailea, and Kim were struck by bullets, and Ferguson pulled Mailea
and Lowery back into the apartment while Kim fled down a flight of stairs. Wilson
followed Kim and told her he was not going to kill her and that he was only "there for the
guys." Wilson then returned to the apartment, shot his way through the locked front door,
and entered.

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In the meantime, Lowery had run into Solano's bedroom where Solano had been
sleeping with his fiancée and young daughter. Solano was awakened by the gunshots and
retrieved his own handgun. Solano then shot Lowery when he came into the bedroom,
mistaking him for an intruder.

Ferguson escaped by jumping out of his bedroom window. He directed Mailea to
follow him, but she was still in Ferguson's room when Wilson returned. As with Kim,
Wilson assured Mailea that he was not going to kill her and that he was only "there for
the boys." He also told her he was "doing what he was doing" because Ferguson and
Solano had too many loud parties in their apartment and that "people deserved to get a
good night's sleep." Wilson then went to Solano's bedroom to look for the others.

Wilson failed to enter Solano's bedroom because the door was blocked by
Lowery's prone body. He ordered Solano to open the door and threatened to shoot his
way into the room if Solano did not comply. Solano had heard Wilson tell Mailea he was
"there for the boys," so he remained quiet, hoping Wilson would think no one was there.
Wilson eventually gave up and left the apartment. Police took him into custody outside
the building a few minutes later.

Lowery died as a result of his gunshot wounds, while Ferguson, Mailea, and Kim
were all hospitalized with serious injuries. Wilson pled no contest to one count of first-
degree premeditated murder for Lowery's death, two counts of attempted first-degree
premeditated murder regarding Ferguson and Solano, and two counts of aggravated
battery on Mailea and Kim.

The district judge denied Wilson's request to order his sentences to run
concurrently instead of consecutively. Instead, he ordered Wilson to serve life in prison
with parole eligibility after 25 years for the murder of Lowery and an additional 310
months to run consecutively to the hard 25 life sentence for his remaining convictions.
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Our jurisdiction is under K.S.A. 2014 Supp. 22-3601(b)(3), (4) (life sentence
imposed for off-grid crime).

ANALYSIS

Issue: The district judge did not abuse his discretion in ordering Wilson to serve
consecutive sentences.

Standard of review

A sentencing judge has discretion to impose concurrent or consecutive sentences
in multiple conviction cases under K.S.A. 2014 Supp. 21-6819(b) (absent certain
circumstances, the sentencing judge shall "have discretion to impose concurrent or
consecutive sentences in multiple conviction cases"). That statute does not set out a list of
specific factors the sentencing judge must consider in exercising his or her discretion.
Rather, it provides that the judge "may consider the need to impose an overall sentence
that is proportionate to the harm and culpability" associated with the crimes. K.S.A. 2014
Supp. 21-6819(b).

This court's abuse of discretion standard is well-established:

"Judicial discretion is abused if 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. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 (2010)." State v. Ward, 292
Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

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Here, Wilson does not allege any errors of fact or law but argues the judge
arbitrarily ordered that he serve consecutive sentences. The State responds the decision
was not arbitrary, i.e., that, based on the facts of this case, a reasonable person could
conclude that consecutive sentences were appropriate.

Discussion

Wilson's counsel filed a memorandum before sentencing. In support of his request
that the judge exercise his discretion to impose concurrent instead of consecutive
sentences, the memorandum expressed Wilson's remorse. It also stated he had
acknowledged that the crimes were extensive in scope, substantial in violence, and
unjustified. More specifically, counsel emphasized Wilson's physically and emotionally
abusive childhood; his alcohol dependence and related medical problems; and his mental
health issues, including depression, anxiety, social isolation, insomnia, and intermittent
suicidal ideation. Counsel's memorandum also noted Wilson's work history in both the
United States Air Force and private sector; his insignificant criminal history—one
misdemeanor DUI; and the fact that he was intoxicated when he committed the crimes.

At the sentencing hearing, Wilson accepted responsibility for the crimes and
apologized to the victims and their families. He struggled to provide an explanation for
his actions, indicating that he just snapped: "I don't know why it happened. I don't even
remember doing it. . . . All I know is something happened, and something in me must
have finally broke."

The district judge agreed that Wilson's life had been difficult. But he nevertheless
concluded that Wilson's misfortunes could not overcome the degree of harm he caused.
In ordering Wilson's sentences to run consecutively, the judge noted the impact on the
victims and their families, stating there were many who had been victimized and hurt by
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Wilson's crimes. He further found that long-term incarceration would protect society and
deter Wilson and others from committing similar crimes in the future.

Given how Wilson has framed his issue on appeal, for this court to conclude the
judge abused his discretion by arbitrarily ordering Wilson's sentences to run
consecutively instead of concurrently, we would have to conclude that no reasonable
person would have taken the judge's view. See Ward, 292 Kan. at 550. But given the
facts of this case, we cannot reach that conclusion.

Wilson initiated an unprovoked attack on his neighbors, allegedly because he had
had enough of loud party noise they sometimes made at night. He shot Ferguson, Mailea,
and Kim, attempted to shoot Solano and Lowery, and informed Mailea and Kim that his
intent was to kill "the guys." The judge weighed the severity of Wilson's crimes against
his remorse and personal history and determined that ordering his sentences to run
consecutively would be proportionate to the harm and culpability associated with the
crimes. See K.S.A. 2014 Supp. 21-6819(b). Accordingly, we hold the judge did not abuse
his discretion in ordering Wilson's sentences to run consecutively.

Wilson also argues that, while the judge imposed a period of lifetime parole at the
sentencing hearing, the journal entry incorrectly provides for lifetime postrelease
supervision. The State not only concedes this issue, but it also has filed an amended
journal entry reflecting the order of lifetime parole. So this issue is moot.

Judgment of the district court is affirmed.