State v. Randolph

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NOT DESIGNATED FOR PUBLICATION

No. 118,232


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ASHLEY MARIE RANDOLPH,
Appellant.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed November
9, 2018. Affirmed in part, vacated in part, and remanded with directions.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Joan Lowdon, deputy county attorney, Todd Thompson, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before ARNOLD-BURGER, C.J., GREEN, J., and ROBERT J. FREDERICK, District Judge,
assigned.

PER CURIAM: Leavenworth County Sheriff's officers performed a traffic stop and
arrested Ashley Randolph for an outstanding warrant. After arresting Randolph, the
officers inventoried Randolph's car to impound it. In the car, the officers found
methamphetamine, marijuana, and drug paraphernalia. The State charged Randolph with
(1) possession with the intent to distribute at least 3.5 grams but less than 100 grams of
methamphetamine, (2) felony possession of paraphernalia, (3) possession of marijuana,
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and (4) misdemeanor possession of drug paraphernalia. Randolph pled no contest to the
first three counts, and the State dismissed the fourth. The trial court granted Randolph a
downward durational departure and sentenced her to 72 months in prison for possession
with intent to distribute, with concurrent sentences of 15 months for possession of
paraphernalia charge and 12 months for possession of marijuana charge. On appeal,
Randolph argues that the trial court abused its discretion by denying her motion for a
dispositional sentencing departure. We disagree and affirm. She also argues that her 12-
month sentence for marijuana possession was illegal. We agree. For the reasons stated
below, we affirm in part, vacate in part, and remand with directions to resentence
Randolph to a class B misdemeanor conviction under count 3 of the complaint.

On September 19, 2016, Leavenworth County Sheriff's Officers Mark Metcalf and
Mark Doud pulled over Ashley Randolph near the intersection of Tenth and
Ironmoulders. Officer Metcalf pulled Randolph over because he knew Randolph had an
outstanding warrant from Wyandotte County. When Officer Metcalf pulled over
Randolph, she had one passenger, Jeremy Tayrien. Tayrien also had an outstanding
warrant.

As Officer Metcalf neared the vehicle, he noticed Randolph going through a purse;
Randolph told Officer Metcalf the purse was hers. The officers arrested Randolph and
Tayrien on their respective warrants and two different officers took Randolph and
Tayrien into custody. The purse remained in the car after Randolph and Tayrien were in
custody. Officers Metcalf and Doud started the process of impounding the car in
accordance with the Leavenworth County Sheriff's office policy.

First, the officers conducted an inventory of the car. Because the purse was in the
car, the officers inventoried the purse and its contents. The purse contained Randolph's
driver's license and Social Security card, indicating that she owned the purse. Police
found a digital scale in the purse. Police also found a small brown clutch inside the purse.
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The clutch held a spoon, several straws, many empty small plastic bags, four plastic bags
containing a crystalline substance, and two plastic bags containing a leafy green
substance. Police photographed these items. Officer Metcalf field tested the scale, spoon,
and some of the filled bags. The scale, spoon, and one bag tested positive for
methamphetamine. A different bag tested positive for marijuana. In total, the police
found 7.45 grams of methamphetamine.

The State charged Randolph with four counts: (1) possession with the intent to
distribute at least 3.5 grams but less than 100 grams of methamphetamine, a level 2
felony; (2) felony possession of drug paraphernalia, a level 5 felony; (3) possession of
marijuana, charged as a class A nonperson misdemeanor; and (4) possession of drug
paraphernalia, a class A nonperson misdemeanor. Randolph and the State ultimately
reached a plea agreement. Randolph pled no contest to the first three counts as charged.
In exchange the State dismissed count four, the misdemeanor paraphernalia charge. The
plea did not dictate the terms of sentencing.

Before sentencing, Randolph submitted a motion for a dispositional departure to
probation, or alternatively a durational departure. In her motion, Randolph cited four
reasons for a departure. (1) She was enrolled in a drug addiction outpatient program after
successfully completing inpatient treatment; she also underwent drug usage evaluation
that recommended treatment rather than prison. (2) She was seeking employment to
support her children. (3) She agreed to a plea instead of going to trial. (4) "Drug usage
was an underlying factor of her crime." Randolph got a job by the time the court held the
sentencing hearing.

At the sentencing hearing, Randolph did not dispute that her criminal history score
was G. Accordingly, the presumptive grid sentence for level 2 felony possession with
intent to distribute methamphetamine was 104 months.

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The State asked the court to impose the presumptive 104-month sentence. The
State noted that Randolph mentioned drugs twice in her departure motion, both as an
underlying factor of the crime, and her later drug treatment enrollment. The State argued
that "the State maintains that these would not be substantial and compelling reasons for a
departure in a distribution of methamphetamine case." The State went on to say that
K.S.A. 2017 Supp. 21-6815(c)(1)(C), the only section of the sentencing departure law
that addresses drugs, does not allow the court to consider lack of substantial capacity for
judgment caused by voluntary drug use as a mitigating factor. The State also argued that
Randolph's drug distribution had a negative impact on her neighborhood and called a
neighbor who testified accordingly.

Randolph argued that she was successfully enrolled in drug treatment and had
found a job. Randolph's grandparents spoke about her character and contradicted the
neighbor's claims about Randolph bringing criminal activity to the neighborhood.
Randolph's pastor also spoke on her behalf.

The court stated during sentencing that it was not considering the neighbor's
testimony because police did not find Randolph dealing out of her house. The court
addressed the fact that Randolph possessed enough methamphetamine to merit a
possession with intent to distribute charge. It stated that "the quantity has risen to a level
that the legislature believes it makes you a much more serious person to be involved
within that nature." The court noted that "methamphetamine is a large part of this docket
now. It has impacted our community and our criminal justice system considerably."

The court ruled that

"as to a dispositional departure, the Court finds that [Randolph has] not met any of the
requirements the Court can see with the facts that have been presented to the Court. It's
shown progress, it's shown treatment, but that is not something the Court would consider
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in dealing with this type of offense; or in considering it, it's not enough to justify a
dispositional departure."

The court denied Randolph's motion for a dispositional departure but granted her a
durational departure from 104 months' to 72 months' imprisonment. The court did so
because it found Randolph's distribution efforts were smaller than other large-scale
distribution efforts the court had dealt with. The court sentenced Randolph to the standard
15-month sentence for her felony paraphernalia charge and one year for her marijuana
possession charge. The court ordered the sentences for the lesser charges to run
concurrent with the 72-month methamphetamine possession sentence. Randolph timely
appealed.

Did the Trial Court Misconstrue the Sentencing Departure Factors and Therefore
Abuse Its Discretion?

Appellate courts review the trial court rulings on motions for sentencing departure
under an abuse of discretion standard. State v. Jolly, 301 Kan. 313, 324, 342 P.3d 935
(2015). A judicial action is an abuse of discretion if: (1) no reasonable person would
adopt the view taken by the court; (2) the court bases its decision on an error of law; or
(3) the court bases its decision on an error of fact. State v. Marshall, 303 Kan. 438, 445,
362 P.3d 587 (2015). The party claiming that a court abused its discretion bears the
burden of showing such an abuse. State v. Stallings, 262 Kan. 721, 726, 942 P.2d 11
(1997).

Randolph argues that the trial court abused its discretion because it "misinterpreted
the law" governing sentencing departures, and "therefore, misunderstood the extent of its
discretion." Randolph argues that the trial court committed an abuse of discretion that
falls within the second category listed above: abusing discretion by basing a decision on
error of law.
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First, Randolph claims that the State misled the court by arguing at the sentencing
hearing that "voluntary use of intoxicants, drugs or alcohol does not fall within the
purview of [K.S.A. 2017 Supp. 21-6815(c)(1)(C)]. Or essentially would not be a reason
for substantial and compelling reasons to depart in this particular case." Randolph next
claims that the trial court misinterpreted the law when it stated at sentencing that the
Legislature has "made clear . . . that voluntary use of the drug is not a defense or not a
reason or a justification for a lessening of the sentence." Randolph finally argues that the
court misstated (and thus misinterpreted) the law when the judge said that though
Randolph had shown progress in drug treatment "that is not something the Court would
consider in dealing with this type of offense; or in considering it, it's not enough to justify
a dispositional departure."

Randolph argues that the "court's comments support that it did not understand the
full extent of the discretion it had." She cites to State v. Horton, 292 Kan. 437, 440, 254
P.3d 1264 (2011): "'A tribunal's failure to exercise its discretionary authority is an abuse
of discretion.'" Randolph's claim that the court's statements above demonstrate an abuse
of discretion fails.

First, as the State explains, placing the State's argument about voluntary drug use
in context shows that the State did not misrepresent the law. After Randolph entered her
no contest plea, she filed a motion for a dispositional departure, or in the alternative, a
durational departure. She made four arguments: (1) she had undergone drug treatment
and was still enrolled in a drug treatment program; (2) she had been seeking employment;
(3) she had opted for a plea rather than pursuing a trial; and (4) her "[d]rug usage was an
underlying factor of her crime."

The State further explains that, because Randolph's motion was vague and failed
to cite any statutes, the State was unsure what exactly Randolph meant by "[d]rug usage
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was an underlying factor of her crime." Accordingly, at the sentencing hearing the State
addressed K.S.A. 2017 Supp. 21-6815(c)(1)(C), the only given factor on the nonexclusive
list of mitigating circumstances that mentions drugs. K.S.A. 2017 Supp. 21-6815(c)(1)(C)
states that a court may consider as a mitigating factor whether the "offender, because of
physical or mental impairment, lacked substantial capacity for judgment when the offense
was committed. The voluntary use of intoxicants, drugs or alcohol does not fall within the
purview of this factor."

The State argued at sentencing:

"In regards to primarily her drug usage, in reviewing the factors of 21-6815,
which is a nonexclusive list for the Court to consider in mitigation of the sentence,
subsection (c) (1) (C) states that the Court may take into consideration if the offender,
because of physical or mental impairment, lacked substantial capacity for judgment when
the offense was committed.
"However, that particular subsection continues to say that the voluntary use of
intoxicants, drugs, or alcohol does not fall within the purview of this factor. Or
essentially would not be a reason for substantial and compelling reasons to depart in this
particular case."

In sum, the State attempted to respond to Randolph's argument that "[d]rug usage
was an underlying factor of her crime" by arguing that the only express mitigating factor
under the sentencing statute that mentions drug use would not be applicable here. The
State correctly argued that the "lacked substantial capacity" mitigating factor was not
applicable to Randolph's offense because her judgment was impaired by voluntary drug
use. The State did not, as Randolph claims, misrepresent that the court could not consider
a person's pursuit of drug treatment as a mitigating factor. The State argued that the
mitigating arguments Randolph proffered "would not be substantial and compelling
reasons for a departure in a distribution of methamphetamine case." The State noted that
methamphetamine distribution had a notable negative impact on the broader community,
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and that Randolph's activities were a source of problems and complaints in her
neighborhood.

Essentially, while the State did say that Randolph's four arguments "would not be
substantial and compelling reasons for a departure in a distribution of methamphetamine
case," in context, it seems that the State simply meant that Randolph's arguments did not
merit a sentencing departure in the case at hand. The State did not argue that the court
was precluded from granting Randolph a sentencing departure as a matter of law. And,
the court later clearly indicated that it did not misunderstand the law to preclude a
sentencing departure. It stated "as to a dispositional departure, the Court finds that you've
not met any of the requirements the Court can see with the facts that have been presented
to the Court." This statement indicated that the court understood that Randolph was
legally eligible for a departure sentence, but the court nonetheless concluded that the
factors in this case did not weigh in favor of a departure sentence.

Similar reasoning dispatches with Randolph's claim that the trial court
misinterpreted the law when it stated at sentencing that the Legislature has "made
clear . . . that voluntary use of the drug is not a defense or not a reason or a justification
for a lessening of the sentence." Here, the trial court was correctly restating the law under
K.S.A. 2017 Supp. 21-6815(c)(1)(C). Section (c)(1)(C) explicitly precludes the court
from considering as a mitigating factor the defendant's lack of substantial capacity for
judgment when the offense occurred if it was caused by voluntary use of drugs.

Finally, the State correctly points out that the trial court did not show it was
relying on an error of law when it stated "that is not something the Court would consider
in dealing with this type of offense; or in considering it, it's not enough to justify a
dispositional departure." Again, the sentence taken as a whole, in context, shows that the
court considered the factors introduced by the parties and decided that on the balance, the
factors weighed against a dispositional departure.
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For the previously mentioned reasons, Randolph's arguments fail. She has not
carried her burden to show that the trial court abused its discretion by relying on an error
of law.

Did the Trial Court Abuse Its Discretion by Denying Randolph's Motion for a
Dispositional Departure?

Appellate courts review the trial court rulings on motions for sentencing
departure under an abuse of discretion standard. Jolly, 301 Kan. at 324. A court
does not abuse its discretion when ruling on a motion for sentencing departure if
"'reasonable people could agree with the district court's assessment of whether the
mitigating circumstances were substantial and compelling.'" State v. Ballard, 289
Kan. 1000, 1008, 218 P.3d 432 (2009) (citing State v. Ortega-Cadelan, 298 Kan.
157, 165-66, 194 P.3d 1195 [2008]). A court does abuse its discretion when ruling
on a motion for sentencing departure if the ruling is based on an error of law or
substantial competent evidence does not support a finding of fact that serves as the
basis of the court's exercise of discretion. Jolly, 301 Kan. at 325. The party
alleging that a trial court abused its discretion bears the burden to show that such
an abuse occurred. Stallings, 262 Kan. at 726.

Here, the trial court granted Randolph a downward durational departure
from 104 months' to 72 months' imprisonment. Randolph argues that the trial court
nonetheless abused its discretion by denying her request for dispositional
departure to probation. She bears the burden to show that no reasonable person
would have denied her dispositional departure. See State v. Smith, 299 Kan. 962,
970, 327 P.3d 441 (2014) ("A district court abuses its discretion when . . . no
reasonable person would take the view adopted by the judge."). This is a heavy
burden.
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Under K.S.A. 2017 Supp. 21-6815(a), "the sentencing judge shall impose
the presumptive sentence provided by the sentencing guidelines unless the judge
finds substantial and compelling reasons to impose a departure sentence." K.S.A.
2017 Supp. 21-6815(a). The statute provides a nonexclusive list of mitigating and
aggravating factors the court may consider when deciding whether to impose a
departure sentence.

On appeal, Randolph reiterates the factors she raised during sentencing.
First, she accepted responsibility for her crimes. Second, she admitted to having a
drug problem and was engaged in drug treatment. Third, she found a job, enjoyed
family support from her grandparents, and had obligations to her children.
Randolph correctly states that similar factors are recognized as valid mitigating
factors weighing in favor of a sentencing departure. At the sentencing hearing, the
trial court compared the circumstances of Randolph's case compared to typical
methamphetamine distribution cases, noting that she was not found dealing drugs
from her house.

The trial court noted aggravating factors during sentencing as well. Police
found Randolph with plastic bags of meth, many additional empty bags that more
methamphetamine could be placed in, and a scale with methamphetamine residue
on it. The court stated that this was evidence that Randolph was "involved in the
distribution of methamphetamine." The court noted that together the
methamphetamine, bags, and scale indicated that this case was "serious." The
court also stated that methamphetamine "has impacted our community and our
criminal justice system considerably."

Randolph does not address these aggravating factors in her brief. Randolph
does not provide any argument beyond rehashing these factors. She simply
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reiterates the mitigating factors and states that "[b]ecause the district court's
decision denying a dispositional departure was unreasonable, it abused its
discretion." She does not explain why the trial court's denial of her motion for a
dispositional departure was so unreasonable that "no reasonable person" would
agree with the judge's decision. A reasonable person could agree with the judge's
decision here to sentence a person convicted of possession with intent to distribute
methamphetamine, who was arrested with methamphetamine, baggies, and a scale,
to 72 months of a possible 104-month sentence. Randolph has failed to carry her
burden to show that the trial court abused its discretion.

Did the Trial Court Impose an Illegal Sentence on Randolph for Her Conviction
for Possession of Marijuana?

An appellate court may correct an illegal sentence at any time. State v.
Dickey, 301 Kan. 1018, 1027, 350 P.3d 1054 (2015). A sentence is illegal if it is
imposed by a court without jurisdiction, if it does not conform to the applicable
statutory provision, or if it is ambiguous with regards to the time and manner in
which it will be served. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013).
Here, the trial court sentenced Randolph to 12 months in jail for her conviction for
possession of marijuana. This sentence does not conform to the law in place at the
time Randolph committed the offense. Accordingly, the sentence is illegal and this
court should remand with directions for the trial court to correct Randolph's
sentence for possession of marijuana.

The complaint against Randolph alleged that she possessed marijuana on
September 19, 2016. Randolph had no prior convictions for possession of
marijuana. The State charged Randolph with possession of marijuana as a class A
nonperson misdemeanor. Randolph pled no contest to the charge. The trial court
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sentenced Randolph to 12 months in county jail for the conviction but ordered the
sentence to run concurrent with Randolph's primary 72-month sentence.

The class A charge and resulting sentence were incorrect. Beginning July 1, 2016,
Kansas law changed so that first time possession of marijuana is a class B nonperson
misdemeanor. K.S.A. 2017 Supp. 21-5706(c)(3); 2016 HB 2462. Under K.S.A. 2017
Supp. 21-5706(c)(3) as it existed during September 2016, a first-time conviction for
possession of marijuana should result in a sentence of no more than six months in county
jail. K.S.A. 2017 Supp. 21-6602(a)(2). Thus, under the law in place when Randolph
committed the offense, the State should have charged Randolph with a class B
misdemeanor for the possession of marijuana instead of a class A misdemeanor. As a
result, her sentence should not have exceeded six months. On appeal, Randolph and the
State agreed that Randolph's 12-month sentence for possession of marijuana was
improper and should be adjusted. Thus, we remand this case and direct the trial court to
impose a sentence for possession of marijuana consistent with K.S.A. 2017 Supp. 21-
5706(c)(3).

Affirmed in part, vacated in part, and remanded with directions.