State v. Perciado

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NOT DESIGNATED FOR PUBLICATION

No. 119,468

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TAYLOR B. PERCIADO,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed December 14,
2018. Affirmed.

Submitted by the parties for summary disposition pursuant to K.S.A. 2017 Supp. 21-6820(g) and
(h).

Before MALONE, P.J., STANDRIDGE and POWELL, JJ.

PER CURIAM: Taylor B. Perciado appeals the district court's departure sentence of
20 months in prison. We granted Perciado's motion for summary disposition pursuant to
Supreme Court Rule 7.041A (2018 Kan. S. Ct. R. 47). The State responded by not
objecting to summary disposition but requesting that we affirm the sentence imposed.
After review, we find no abuse of discretion on the part of the district court and affirm.

Perciado pled guilty to a single count of possession of methamphetamine, a
severity level 5 nonperson drug felony. In exchange for his plea, the State agreed to
recommend a durational departure of 20 months in prison and Perciado was free to argue
for an additional departure. Perciado's presentence investigation report calculated his
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criminal history score as an A, giving him a presumptive prison sentence range for his
crime of 37, 40, or 42 months. Prior to sentencing, Perciado filed a motion for a
durational departure, arguing, among other things, that the age of his juvenile conviction
for criminal sodomy committed in 2003, the lack of any violent crimes or other sex
crimes in his criminal history, his acceptance of responsibility, and community safety
would not be enhanced by a longer prison sentence justified such a departure.

At sentencing on April 27, 2018, Perciado asked for a departure sentence of 10
months in prison while the State argued for 20 months. The district court granted
Perciado a durational departure but only down to 20 months as agreed to in the plea
agreement, stating that Perciado had gotten a "super deal" in the case and that there was
no justification for a further departure. The district court cited Perciado's acceptance of
responsibility and his cooperation with the State as justification.

Perciado's sole argument on appeal is that the district court abused its discretion in
refusing to grant him a further downward durational departure to 10 months in prison.
Perciado claims the circumstances of his criminal history and his acceptance of
responsibility warrant such a further departure sentence. There is no dispute that
Perciado's sentence is reviewable because he asserts the district court did not depart
enough. See State v. Looney, 299 Kan. 903, 908-09, 327 P.3d 425 (2014). When the
extent of a departure is challenged, our standard of review is for an abuse of discretion.
State v. Spencer, 291 Kan. 796, 807-08, 248 P.3d 256 (2011). "Judicial discretion is
abused if the action (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. Jones, 306 Kan. 948, Syl. ¶ 7, 398 P.3d 856
(2017). Perciado bears the burden to show an abuse of discretion by the district court. See
State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).

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Here, the record is clear that the district court took Perciado's arguments into
account when making its decision to depart durationally and imposing a 20-month prison
sentence. The district court specifically stated that Perciado had received a "super deal,"
that the departure sentence contemplated in the plea agreement cut his presumptive
sentence in half, and that a durational departure below a 20-month prison sentence was
not justified. As Perciado fails to persuade us that no reasonable person would have taken
the view of the district court, we cannot say the district court's refusal to grant a further
durational departure constitutes an abuse of discretion.

Affirmed.