State v. Bell

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NOT DESIGNATED FOR PUBLICATION

No. 118,260

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JORDAN M. BELL,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed September
28, 2018. Affirmed.

Kristen B. Patty, of Wichita, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BRUNS, P.J., MCANANY, J., and BURGESS, S.J.

PER CURIAM: Jordan M. Bell pled guilty to 10 crimes. He requested a departure
from our sentencing guidelines to a shorter prison sentence. The court imposed a shorter
prison sentence than called for by the guidelines but not as much as Bell wanted. On
appeal, Bell claims the district court abused its discretion in not giving him an even
shorter sentence than the court imposed. We find no merit in Bell's claim and affirm the
district court.

The parties are well acquainted with the facts leading to Bell's convictions, and we
need not recount them for purposes of this appeal. It suffices to say that Bell and the State
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entered into a plea agreement under which one charge was reduced and a separate case
pending against Bell was dismissed. Bell pleaded guilty to three counts of aggravated
kidnapping, three counts of aggravated robbery, plus single counts of aggravated
burglary, severity level 7 aggravated battery, severity level 4 aggravated battery, and
aggravated sexual battery.

Bell moved for a downward durational departure of 166 months, arguing that he
had taken responsibility for his actions, that he had no prior felony conviction, and that
substance abuse contributed to his commission of the crimes. He also argued at
sentencing that the degree of harm caused by his crimes was less than typical. Bell's
victim addressed the court and explained how Bell's crimes changed her life and how she
thought she was going to die the night Bell perpetrated these crimes.

The State opposed Bell's departure and recommended that the court impose
consecutive prison sentences based on the high guideline number of 241 months for the
aggravated kidnapping and the low number for the aggravated robbery. The State further
recommended that these sentences run concurrent with the sentences for Bell's other
convictions.

The district court granted Bell's request for a downward durational departure based
on Bell's acceptance of responsibility. The court used a criminal history score of I for
Bell instead of a criminal history score of H, resulting in a controlling sentence of 202
months.

In reviewing the extent of the sentencing court's imposition of a departure
sentence, we consider whether the sentencing court abused its discretion in doing so. In
our review, we measure whether the departure was consistent with the purposes of the
Kansas Sentencing Guidelines and proportionate to the severity of Bell's crimes and his
criminal history. See State v. Spencer, 291 Kan. 796, 807-08, 248 P.3d 256 (2011); State
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v. Cato-Perry, 50 Kan. App. 2d 623, 629, 332 P.3d 191 (2014). An abuse of discretion
occurs when a judicial action is arbitrary, fanciful, or unreasonable, or is based on an
error of law or fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). Bell has the
burden to show that the sentencing court abused its discretion. See State v. Stafford, 296
Kan. 25, 38, 290 P.3d 562 (2012).

District courts impose the presumptive sentence provided by the sentencing
guidelines absent substantial and compelling reasons that warrant a departure. K.S.A.
2017 Supp. 21-6815(a). K.S.A. 2017 Supp. 21-6815(c)(1) contains a nonexclusive list of
mitigating factors that the district court can consider, but the court may consider other
nonstatutory factors as long as they are consistent with the principles underlying the
Kansas Sentencing Guidelines. State v. Bird, 298 Kan. 393, 398-99, 312 P.3d 1265
(2013). Our Supreme Court recognizes several principles underlying the Kansas
Sentencing Guidelines:

"[I]ncarceration should be reserved for serious/violent offenders who present a threat to
public safety; sanctions should be imposed based on harm inflicted; sanctions should be
uniform and not related to socioeconomic factors, race, or geographic location; penalties
should be clear so as to be understood; individuals should not be sent to prison solely to
gain education or job skills; and the system must be rational to allow policymakers to
allocate resources. [Citation omitted.] In addition, this court has recognized three
legislative purposes of the KSGA: (1) to reduce prison overcrowding; (2) to protect
public safety, and (3) to standardize sentences so similarly situated offenders are treated
the same. [Citation omitted.]" Bird, 298 Kan. at 399.

The district court cited Bell's acceptance of responsibility for his actions and his
admission of guilt as support for a downward departure. But Bell argues that additional
factors support more of a downward departure than what the district court granted. He
argues that he went along with and was influenced by a more experienced codefendant;
that he only committed the crimes after drinking alcohol, smoking marijuana, and
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ingesting mushrooms; that his substance abuse evaluation and psychological evaluation
suggest a need for inpatient and residential treatment; that he has support from family
members; and that he has experienced multiple traumatic events in his life.

Bell minimized his responsibility for his crimes. There is no evidence to support a
number of his claims. He has a history of misdemeanor offenses and violence against
women. He has two prior convictions for domestic battery against a former girlfriend.
Bell was the only one of the three assailants who was physically violent toward the
victim R.C. He punched her in the face and sexually assaulted her.

Reasonable people could agree with the district court's decision that Bell's
acceptance of responsibility warranted a departure, but not to the extent that Bell
requested. The district court's departure is consistent with the purposes of the Kansas
Sentencing Guidelines and not disproportionate to the severity of Bell's crimes and his
criminal history. The district court's decision was not arbitrary, fanciful, or unreasonable,
nor was the decision based on a mistake of fact or law. The district court did not abuse its
discretion in sentencing Bell.

Affirmed.