State v. Pauley

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NOT DESIGNATED FOR PUBLICATION

No. 115,221

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SAMANTHA MARIE PAULEY,
Appellant.

MEMORANDUM OPINION

Appeal from Dickinson District Court; BENJAMIN J. SEXTON, judge. Opinion filed November
4, 2016. Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2015 Supp. 21-6820(g) and (h).

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

Per Curiam: In this appeal we granted Samantha Pauley's motion for summary
disposition in lieu of briefing pursuant to Supreme Court Rule 7.041A (2015 Kan. Ct. R.
Annot. 67). Pauley contends the district court abused its discretion in failing to grant her
probation. She also claims the court violated her constitutional rights as expressed in
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Pauley pled guilty to distribution or possession with intent to distribute
methamphetamine. Her presumptive sentence was imprisonment, but she asked the court
to grant her probation based on the following claimed substantial and compelling
mitigating factors: (1) her prior convictions occurred 7 years before her current crime;
(2) she accepted responsibility by pleading guilty; (3) she assisted law enforcement
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officers by providing information about criminal activity in Wyoming; and (4) she was a
"'less serious offender'" and not a habitual offender.

At the sentencing hearing, the State also recommended a departure to probation.
Pauley told the court she wanted probation so that she could get drug and alcohol
treatment. When questioned by the district court, Pauley admitted she failed to complete
court-ordered drug and alcohol treatment in the past.

The district court noted Pauley's criminal history included a conviction for a
similar drug crime and her prior failure to complete drug and alcohol treatment, despite
having been given the opportunity. The district court refused to grant probation but
reduced her prison sentence to 44 months, less than the sentencing guidelines would call
for, because of her age and the existence of pending charges in another state which were
to likely result in a prison sentence.

We review a district court's decision denying probation for any abuse of
discretion. See State v. Beaman, 295 Kan. 853, 865, 286 P.3d 876 (2012). A judicial
action constitutes an abuse of discretion if it "(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 . . . ; or (3) is based on an error of fact." State v. Ward, 292 Kan.
541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Pauley bears the
burden of establishing an abuse of discretion. See State v. Stafford, 296 Kan. 25, 45, 290
P.3d 562 (2012).

Even if Pauley asserted substantial and compelling reasons to support a departure
sentence of probation, the district court was not required to depart and grant probation.
K.S.A. 2015 Supp. 21-6818(a) ("When a departure sentence is appropriate, the
sentencing judge may depart from the sentencing guidelines." [Emphasis added.]).

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Pauley fails to show an abuse of discretion. Here, a reasonable person could agree
with the district court's decision to deny probation based on Pauley's criminal history,
which showed an inability to conform her conduct to the law and to refrain from harmful
drug use. Moreover, Pauley had been given an opportunity to receive drug and alcohol
treatment in the past, but she failed to complete the program. The district court's decision
was not arbitrary, fanciful, or unreasonable. Pauley fails to otherwise demonstrate the
district court's decision was guided by an error of law or fact.

Pauley also claims the district court violated her constitutional rights under
Apprendi by using her criminal history to increase her sentence without requiring the
State to prove it to a jury beyond a reasonable doubt.

The Kansas Supreme Court has consistently rejected the Apprendi claim Pauley
raises, beginning with its decision in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). We
are duty bound to follow Kansas Supreme Court precedent, absent some indication the
court is departing from its previous position. State v. Belone, 51 Kan. App. 2d 179, 211,
343 P.3d 128, rev. denied 302 Kan. 1012 (2015). We find no such indication. See State v.
Barber, 302 Kan. 367, 386, 353 P.3d 1108 (2015). This claim provides no basis for relief.

Affirmed.