State v. Lopez

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NOT DESIGNATED FOR PUBLICATION

No. 116,389

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ERIC ERNESTO LOPEZ,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed September 15,
2017. Affirmed.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MCANANY, P.J., STANDRIDGE, J., and WALKER, S.J.

PER CURIAM: The district court imposed a downward departure sentence of 12
months' incarceration with 12 months' postrelease supervision for Eric Ernesto Lopez'
convictions for possession of methamphetamine and possession of marijuana after a prior
conviction. In this appeal Lopez contends that the district court abused its discretion in
denying his motion for a more substantial departure.

Lopez pled guilty to these crimes. During his 24 years he had accumulated a
criminal history score of A, with 20 prior entries in his criminal history, including 3
person felonies. With this criminal history and the severity of his crimes, the sentencing
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guidelines' presumptive prison sentence for his methamphetamine conviction was
between 37 and 42 months. The presumptive sentence for his marijuana conviction was
between 10 and 12 months with presumptive probation.

As part of the plea agreement, the State joined with Lopez in requesting a
downward durational departure sentence from 37 months to 12 months. For support, the
State cited Lopez' cooperation with law enforcement, his acceptance of responsibility,
and the amount of controlled substance he possessed.

Before sentencing, Lopez moved for a further departure to probation or, at most,
incarceration for six months. He argued that his youth explained his prior bad behavior
and he could be better rehabilitated by community substance abuse programs.

The district court denied Lopez' motion for a more extensive departure, citing
Lopez' violations of probation orders in other cases, his failure to seek out drug treatment
in the past, and his admission to the court that he was spiraling out of control. Instead, the
court imposed the originally proposed departure sentence of 12 months' incarceration
with 12 months' postrelease supervision.

Lopez appeals. He claims the district court abused its discretion in denying his
motion for a more substantial downward departure based on his youth and willingness to
accept responsibility for his actions.

A defendant may appeal the grant of a downward departure that is less than or
different than requested. State v. Looney, 299 Kan. 903, 909, 327 P.3d 425 (2014). In
considering such an appeal, we apply the abuse of discretion review standard. State v.
Spencer, 291 Kan. 796, 807-08, 248 P.3d 256 (2011). An abuse of the trial court's
discretion occurs when its action is based on an error of law or fact or when no
reasonable person would have taken the view it adopted. State v. Ward, 292 Kan. 541,
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550, 256 P.3d 801 (2011). Here, Lopez bears the burden of showing that the district
court's action was an abuse of discretion. See State v. Hulett, 293 Kan. 312, 319, 263 P.3d
153 (2011). In applying this review standard we consider whether the district court's
departure sentence "is consistent with the purposes of the guidelines and proportionate to
the crime severity and the defendant's criminal history." Spencer, 291 Kan. at 808. The
purposes of the Kansas Sentencing Guidelines are to reduce prison overcrowding while
protecting the public and to standardize sentencing in order to avoid any bias. State v.
Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994).

Lopez asserts that the district court's denial of his departure motion is not
consistent with the purpose of the guidelines. He cites the provisions of the guidelines
that require the sentencing court to deal with each defendant in accordance with the
defendant's individual characteristics, circumstances, needs, and potentialities and impose
a sentence that ensures that dangerous offenders are "correctively treated in custody for
long terms," but "that other offenders shall be dealt with by probation." But the guidelines
further admonish that probation is not appropriate if it would be "detrimental to the needs
of public safety and the welfare of the offender." K.S.A. 2016 Supp. 21-6601.

In support of his departure motion, Lopez argued to the district court his youth, his
willingness to accept responsibility for the offenses, and the inability of the penal system
to rehabilitate his drug habits. He asserts on appeal that these factors indicate that it was
"arguably better for the community for the defendant to seek help and treatment through
available services outside of incarceration, rather than no help and no treatment while in
prison."

But the district court weighed these factors and found them insufficient to
overcome the factors weighing against probation, such as Lopez' extensive criminal
history, his history of drug use, his inability to comply with probation orders, his failure
to get help when given prior opportunities, and his admission to the court that he was
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spiraling out of control. Lopez did not offer any real proof that outside services would be
more beneficial to his rehabilitation than prison. In making the decision to deny Lopez'
motion, the court fully considered Lopez' needs and circumstances and stated:

"[D]on't think for a second that I am just throwing you away, or just punishing you, or
that sort of thing. I think this is the best thing for you. You are young. You still have a
chance to make some changes . . . . You are important. I think [the 12-month prison
sentence is] what you need to try to get your attention at a young age while you still could
make some good choices. . . . [Y]ou need something bigger than probation . . . . You got
to understand you have got to change your course."

We find no abuse of the district court's discretion in denying Lopez' motion for a
further departure to probation.

Affirmed.