State v. Lebeuf

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NOT DESIGNATED FOR PUBLICATION

No. 112,857

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

JAMES A. LEBEUF,
Appellee.


MEMORANDUM OPINION

Appeal from Clay District Court; JOHN F. BOSCH, judge. Opinion filed September 25, 2015.
Affirmed.

Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellant.

Andy Vinduska, of Manhattan, for appellee.

Before LEBEN, P.J., GREEN, J., and JEFFREY E. GOERING, District Judge, assigned.

Per Curiam: The State appeals the district court's decision to grant James Lebeuf's
departure motion. The State contends that the district court's decision was in error
because there were no substantial and compelling reasons to grant the departure.
Although we find that some of the departure factors relied upon by the district court to be
unsupported by substantial competent evidence, we find that the district court was not in
error to grant the departure motion based on the factors that had proper evidentiary
support.

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The relevant facts are as follows. Lebeuf was an inmate at the Clay County Jail.
While on work release, he began smuggling items into the jail. Lebeuf then began to steal
items from the jail, including such things as computers, cameras, cash, and firearms.
Lebeuf would deposit these items in designated pick up areas where his contact on the
outside would retrieve them and would leave behind drugs (usually methamphetamine).

Eventually, Lebeuf was caught and confessed to the investigator assigned to the
case. Lebeuf was then charged with trafficking contraband in a correctional facility,
aiding and abetting trafficking contraband in a correctional facility, felony theft,
possession of methamphetamine, and misdemeanor criminal damage to property. Lebeuf
entered into a plea agreement with the State wherein he pled no contest to the charge of
trafficking contraband in a correctional facility, a severity level 5 felony. As part of the
plea agreement, the remaining charges were dismissed by the State. The plea agreement
also permitted Lebeuf to seek a departure sentence.

According to the presentence investigation report, Lebeuf had a "C" criminal
history score, and his presumptive sentence was prison. At sentencing, the district court
granted Lebeuf's motion for a departure and ordered a dispositional departure to
probation. The factors relied upon by the district court to support the dispositional
departure were: (1) Lebeuf's age; (2) that Lebeuf had no recent history of violence; (3)
that drug treatment would better protect society than a prison disposition; and (4) reasons
"pretty much as stated by [Lebeuf's] attorney to the court." The factors argued by defense
counsel were that the degree of harm was significantly less than typical, that Lebeuf had
accepted responsibility for his conduct, and that Lebeuf was addicted to
methamphetamine.

On appeal, we first look to determine whether substantial competent evidence
exists in the record to support the departure factors relied upon by the district court. State
v. Bird, 298 Kan. 393, 397, 312 P.3d 1265 (2013). "Substantial evidence is evidence that
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possesses both relevance and substance and that furnishes a substantial basis of fact from
which the issues can reasonably be resolved." Wilkins v. State, 286 Kan. 971, 980, 190
P.3d 957 (2008).

With respect to those departure factors that are supported by substantial competent
evidence, the district court must view the mitigating circumstances and weigh those
circumstances against any aggravating circumstances to ultimately determine whether
substantial and compelling reasons warrant a departure. State v. Rochelle, 297 Kan. 32,
45, 298 P.3d 293 (2013). "Substantial" means something real, not imagined; something
with substance, not ephemeral. Bird, 298 Kan. at 397. "Compelling" means that the court
is forced, by the facts of the case, to leave the status quo or go beyond what is ordinary.
298 Kan. at 397. Appellate review of the district court's weighing of these factors is for
an abuse of discretion. Rochelle, 297 Kan. at 45.

In this case, the State argues that departure factors relied upon by the district court
were either not supported by substantial competent evidence, or were applied by the
district court in a fashion that constitutes abuse of discretion. The State's concerns are
justified with respect to two of the factors relied upon by the district court—Lebeuf's age,
and the degree of harm being less than typical.

As to age, in State v. Favela, 259 Kan. 215, 235, 911 P.2d 792 (1996), the court
held that the defendant's age (17 years old) was not a substantial and compelling reason
to justify a departure as a matter of law, but it could be considered "as part of the entire
package." In this case, the district court did not articulate why Lebeuf's age (24 years old
at the time of the crime, and 25 years old at the time of sentencing) was in any way
significant. The State correctly notes that by the time Lebeuf reached his 25th birthday,
he had accumulated a "C" criminal history score and had served time in prison. There is
not substantial competent evidence that Lebeuf's age should have been considered "as
part of the entire package" in this case.
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Likewise, there is not substantial competent evidence to support the district court's
determination that the degree of harm in this case was less than typical of any other case
involving trafficking of contraband in a corrections facility. The State argues that the
degree of harm in this case was actually an aggravating factor because the items that were
involved included drugs and firearms. The district court did not articulate why, given
these facts, the degree of harm in this case was less than typical.

As to the remaining factors relied upon by the district court to support a departure
sentence, we find that those factors were supported by substantial competent evidence.
The presentence investigation report supports the district court’s finding that Lebeuf had
no recent history of violent crime. By pleading no contest, Lebeuf elected not to contest
the charge and to accept a conviction. The drug and alcohol evaluation confirmed
Lebeuf's addiction to methamphetamine and that there was a treatment program available
to treat this addiction.

The question then becomes whether the district court abused its discretion by
imposing a departure sentence based on the factors that are supported by the evidence.
The district court abuses its discretion when no reasonable person would take the view
adopted by the district court. Fischer v. State, 296 Kan. 808, 825, 295 P.3d 560 (2013).

In State v. Bird, 298 Kan. 393, 399, 312 P.3d 1265 (2013), our Supreme Court
noted that among the principles underlying the Kansas Sentencing Guidelines Act is that
"incarceration should be reserved for serious/violent offenders who present a threat to
public safety." In this case, the district court determined: (1) that Lebeuf's nonviolent
offense was motivated by an addiction to methamphetamine; (2) that there was a drug
treatment program available to address Lebeuf's methamphetamine addiction; (3) that
sending Lebeuf to prison without first giving him the opportunity for drug treatment
would not address the underlying problem that motivated the commission of the crime for
which he was convicted; and (4) that society was better served by allowing a nonviolent
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offender who had accepted responsibility for his actions the opportunity for drug
treatment rather than imposing the presumptive prison term.

We cannot say that no reasonable person would take the view adopted by the
district court. Consequently, the district court did not abuse its discretion by granting
Lebeuf a dispositional departure to probation.

Affirmed.