State v. Briscoe

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NOT DESIGNATED FOR PUBLICATION

Nos. 114,278
114,279

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

PRESTON JAMES BRISCOE,
Appellee.


MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed May 13, 2016.
Affirmed.

Amy E. Norton, assistant county attorney, and Derek Schmidt, attorney general, for appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.


Before POWELL, P.J., ARNOLD-BURGER, J., and BURGESS, S.J.

Per Curiam: Preston James Briscoe pled no contest to two drug charges. Before
sentencing, and citing his long history of drug addiction, the lack of harm caused by his
crime, and his lack of personal gain, he moved for both a dispositional and durational
departure. The district court denied the dispositional departure but sentenced him to a
downward durational departure of 50 months' imprisonment for each offense. The State
appeals. Because we find that the court did not abuse its discretion in granting a
downward durational departure, we affirm.
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FACTUAL AND PROCEDURAL HISTORY

In August 2014, the State charged Briscoe with 13 separate drug offenses. These
charges all stemmed from a series of controlled methamphetamine buys between a
confidential informant (CI), Briscoe's former roommate, and Briscoe. Briscoe both
helped the CI contact his roommate and provided methamphetamine to the CI. A few
days later, in a separate criminal case, the State charged him with four additional drug
offenses. These new charges stemmed from a search of Briscoe's residence.

Briscoe agreed to plead no contest to one count of possession of
methamphetamine with intent to distribute from each case. In return, the State dismissed
all the other charges. The district court accepted both pleas.

Before sentencing, Briscoe moved for a downward dispositional and durational
departure for both convictions. He argued that his long history of drug addiction,
incarceration, and mental health needs (which he self-medicated with illegal substances)
justified a departure sentence. He also pointed out his relatively passive role in the
crimes, the lack of harm caused by the offenses, and his lack of pecuniary gain. He
ultimately asked that the district court either grant a dispositional departure by placing
him on probation with an assignment to drug court or sentence him to a durational
departure of 24 months' imprisonment.

At sentencing, Briscoe's attorney reiterated a number of points in the motion,
explaining that Briscoe first started using illegal drugs at the age of 14 and continued his
use even while in prison. He emphasized that Briscoe acted only as a middleman, passing
methamphetamine from the true supplier to the individual buyer. In fact, the attorney
referred to Briscoe's role as "minor and passive" and not for individual gain. He therefore
requested that the district court allow Briscoe the opportunity to obtain treatment and
"become a productive citizen."
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Briscoe echoed many of his attorney's sentiments, indicating that he used drugs
while in prison as a young man to cope with the violence around him. Briscoe explained
that he struggled to adjust after release, falling back into old habits and ultimately
returning to prison. He struggled to find a job and place to live, leading him to reunite
with other addicts and continue using drugs. In fact, Briscoe explained that his current
crimes of conviction arose because he wanted "a free high." But he emphasized his desire
to stay out of prison and change his life, saying:

"But, I just, I want to do the right thing. I want to be sober. I want to have a job. I
want to have kids. I want to learn how to drive a car and get a car. And I'm just too old
for this, you know. But, I just . . . want to say, you know, just please, if you would show
me some mercy."

The State opposed the motion, arguing that Briscoe served as "essentially the
primary point of contact" in multiple drug transactions with an end goal of monetary
gain. The State also contended that Briscoe's crime caused significant harm given the
methamphetamine problems in the community and his position as "a fairly high ranking
middleman, moving large quantities from one wholesale supplier, as it were, to street
level dealers." Ultimately, the State argued that no substantial and compelling reasons for
departure existed and recommended 73 months' imprisonment for each conviction with
the sentences to run consecutively.

Based on the statements by counsel and Briscoe, the district court sentenced
Briscoe to two 50-month sentences running consecutively. The district court rejected
Briscoe's claims that the harm was less than in similar situations and that Briscoe
received no personal gain from the transactions. In fact, the district court noted that
Briscoe "appear[ed] to be minimizing his role to some extent" and determined that his
involvement in drug distribution made him a poor candidate for drug court. But the
district court also determined that Briscoe's history—including his "addictions, his
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attempt at treatment"—and his current self-awareness of his need to address his addiction
constituted substantial and compelling reasons to grant a durational departure. The
district court also found Briscoe's "age and the opportunity for treatment, education, other
skills, life skills, work, that are available in this community" important in deciding to
grant a departure.

After the hearing, the State filed a motion for contempt and a motion for the
district court to reconsider the departure sentence, based in part statements Briscoe made
while on the telephone to his mother. The State also timely appealed.

ANALYSIS

On appeal, the State argues that the district court erred in granting Briscoe's
motion for a durational departure. Specifically, the State challenges whether the
substantial and compelling reasons to depart are supported by adequate evidence.

As a preliminary matter, Briscoe argues that the State failed to adequately brief
this issue. Relying solely on State v. Godfrey, 301 Kan. 1041, 350 P.3d 1068 (2015), he
argues that the State violated Kansas Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R.
Annot. 41) by not providing a pinpoint citation to where it objected to his motion before
the district court.

Although Supreme Court Rule 6.02(a)(5) clearly requires that litigants include "a
pinpoint reference to the location in the record on appeal where the issue was raised and
ruled on," Godfrey concerned a wholly different part of the rule: namely, the portion
requiring that a litigant justify why an issue not raised below may still be heard by the
appellate court. 301 Kan. at 1043-44. And Godfrey followed several other cases
reiterating that failure to comport with that particular part of the rule would result in the
unpreserved issue being deemed abandoned. 301 Kan. at 1044. But nothing in that case
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purports to address the remedy for a party's failure to provide a pinpoint citation. Given
that the State clearly opposed Briscoe's motion at the district court level, Briscoe's
argument about abandonment is unpersuasive.

Turning now to the merits of the case, when considering the propriety of a
departure sentence, this court applies a mixed standard of review. Generally, we "first
examine[] the record to see whether there is substantial competent evidence in support of
the sentencing court's articulated reasons for granting a departure." State v. Blackmon,
285 Kan. 719, 724, 176 P.3d 160 (2008). If such evidence exists, we then determine
whether the reasons for departure constitute "substantial and compelling reasons
justifying a deviation from the presumptive sentence." 285 Kan. at 724; see K.S.A. 2014
Supp. 21-6815(a). The ultimate question of "whether the sentencing court based its
conclusion that substantial and compelling reasons warranted a departure upon a proper
weighing of the mitigating factors" is reviewed for an abuse of discretion. State v.
Theurer, 50 Kan. App. 2d 1203, 1216, 337 P.3d 725 (2014), rev. denied 301 Kan. ___
(May 26, 2015).

K.S.A. 2014 Supp. 21-6815(c) provides a "nonexclusive list of mitigating factors
[that] may be considered in determining whether substantial and compelling reasons for a
departure exist." That said, district courts may also consider other, nonstatutory factors
provided that those factors are supported by the evidence and consistent with the
sentencing guidelines' intent and purpose. 50 Kan. App. 2d at 1215. Here, the district
court relied on four nonstatutory factors: Briscoe's age, his history of drug abuse, his
recognition of his issues (including his addiction), and the opportunity for him to obtain
treatment, work, and life skills within the community. According to the State, however,
these findings are without adequate evidentiary support.

But Briscoe's drug and alcohol assessment, filed with his presentence investigation
report, clearly indicated that his drug use began at age 14 and, until recently, continued
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unabated. He primarily used marijuana, but at the time of his arrest, he also used
methamphetamines daily. The report also noted that Briscoe started treatment while on
probation but that his arrest stopped him from completing the program. The report
recommended intensive outpatient treatment with a possible need for a higher level of
care. Obviously, Briscoe's long history of drug use and his need for treatment is well-
documented in the record, and Briscoe acknowledged both things at sentencing. And as
previously stated, both Briscoe and his counsel spoke at sentencing about his desire to
become sober, gain life skills, and improve his situation. The district court obviously
determined these statements to be credible, and this court cannot now reconsider that
credibility assessment. See State v. Favela, 259 Kan. 215, 229, 911 P.2d 792 (1996).

In its brief, the State points to a wide variety of facts suggesting that Briscoe is a
career criminal with no intention to obtain treatment or otherwise change his life. But
substantial evidence is simply legal and relevant evidence that a reasonable person could
accept as being adequate to support a conclusion, and certainly, that evidence exists here.
See State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). The district court placed
more weight in Briscoe's statements than in the history the State outlines, and this court
cannot reweigh that decision.

The State also suggests that the factors the district court relied on—Briscoe's age,
his recognition of his issues, and his need and desire for treatment—are not substantial
and compelling ones. In order for a departure factor to be substantial, "the reason must be
real, not imagined, and of substance, not ephemeral." Blackmon, 285 Kan. at 724. And a
compelling reason is one that, based on the facts of the case, forces the court "to abandon
the status quo and to venture beyond the sentence that it would ordinarily impose." 285
Kan. at 724. If any of the factors articulated by the sentencing court would justify the
departure sentence, the decision will be upheld on appeal, and a departure may still be
justified by the collective factors even if no one factor standing alone would provide that
justification. State v. Bird, 298 Kan. 393, 398, 312 P.3d 1265 (2013).
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To start with the issue of Briscoe's age, consideration of a defendant's age is
analogous to the statutory factor concerning whether the defendant, "because of physical
or mental impairment, lacked substantial capacity for judgment when the offense was
committed." K.S.A. 21-6815(c)(1)(C); see State v. Cato-Perry, 50 Kan. App. 2d 623,
630, 332 P.3d 191 (2014), rev. denied 302 Kan. ___ (August 20, 2015). But in order for
age to stand alone as a substantial and compelling reason for departure, the district court
must "articulat[e] that it considered the defendant's age in the context of [his] relative
immaturity." 50 Kan. App. 2d at 630-31. Otherwise, age may only be "'considered as part
of the entire package.'" 50 Kan. App. 2d at 631. A review of the record in this case
indicates that the district court never linked Briscoe's age to his maturity, meaning that
his age alone cannot constitute a reason to depart. See 50 Kan. App. 2d at 631. But
because age can combine with other factors to support the district court's decision, the
other nonstatutory factors cited by the district court must still be considered.

All three of these remaining factors—Briscoe's addiction, awareness of his issues,
and ability and desire to obtain services in the community—all appear to consider
Briscoe's potential to be rehabilitated. Like with age, a defendant's amenability to
rehabilitation, standing alone, will not constitute a substantial and compelling reason to
depart. Theurer, 50 Kan. App. 2d at 1235. That said, the district court can include this
evidence in "the overall picture . . . if other factors warrant a departure." 50 Kan. App. 2d
at 1235. Importantly, if preexisting rehabilitation efforts are to serve as a departure factor,
"these efforts should be geared towards addressing the defendant's behavior that caused
the crime for which the defendant was convicted." 50 Kan. App. 2d at 1235. Here, the
district court specifically highlighted both Briscoe's desire to become sober and the
treatment efforts he undertook prior to his arrest in this case. His addiction was directly
related to his crime of conviction.

The State cites no cases indicating that these factors cannot, in the aggregate,
constitute substantial and compelling reasons. Moreover, as judicial discretion is only
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abused when the "action is arbitrary, fanciful, or unreasonable, i.e., if no reasonable
person would have taken the view adopted by the district court," the district court did not
abuse its discretion here. See Cato-Perry, 50 Kan. App. 2d at 629. Briscoe expressed a
desire to change his life by becoming sober, obtaining lawful employment, and learning
to drive. The district court's decision to find these statements credible and grant him a
downward durational departure is not unreasonable. Therefore, we affirm Briscoe's
sentence.

Affirmed.