State v. Spencer

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NOT DESIGNATED FOR PUBLICATION

No. 117,686

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOHN A. SPENCER,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed December 29,
2017. Affirmed.

Submitted by the parties for summary disposition pursuant to K.S.A. 2016 Supp. 21-6820(g) and
(h).

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

PER CURIAM: John A. Spencer appeals his felony sentence for aggravated escape
from custody, claiming the district court abused its discretion when it refused to grant
him probation. Spencer filed a motion for summary disposition of his appeal pursuant to
Supreme Court Rule 7.041A (2017 Kan. S. Ct. R. 48). The State did not object, and we
granted Spencer's motion for summary disposition in lieu of briefs. Because we find no
abuse of discretion on the part of the district court, we affirm.

Spencer, without a plea agreement with the State, pled guilty to aggravated escape
from custody, a severity level 5 nonperson felony. According to the presentence
investigation (PSI) report, Spencer's criminal history score was listed as D, making his
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presumptive sentence 55, 52, or 50 months. His sentence also fell in the presumptive
prison category because he committed his crime while incarcerated for another felony.
See K.S.A. 2016 Supp. 21-6604(f)(1). Spencer's counsel, believing Spencer to have a
criminal history score of H and thinking Spencer fell within a border box on the
sentencing grid, sought probation on numerous grounds, principally that Spencer, as an
alcoholic, could be reformed through drug treatment. At sentencing, the district court
agreed to treat Spencer's motion as one seeking a departure, but Spencer's counsel handed
the court a newly minted departure motion. A copy of that motion is not in the record on
appeal. Spencer did not object to his criminal history. While the district court granted
Spencer a downward durational departure to 30 months' incarceration and 24 months'
postrelease supervision, largely due to Spencer's addiction to alcohol, it refused to grant
probation, citing Spencer's lengthy criminal history. Spencer now appeals, contending the
district court abused its discretion in not granting him probation.

Typically, we lack jurisdiction to review a sentence that is within the presumptive
sentence range for the crimes committed. See K.S.A. 2016 Supp. 21-6820(c)(1); State v.
Sprung, 294 Kan. 300, 317, 277 P.3d 1100 (2012) ("Under [the previous version of
K.S.A. 2016 Supp. 21-6820(c)(1)], appellate courts lack jurisdiction to review challenges
to presumptive sentences."). However, our Supreme Court has held that where the district
court grants a downward durational departure yet imposes the statutory presumption of
imprisonment, an appellate court has jurisdiction to consider the defendant's complaint
that the district court "'did not depart enough.'" State v. Looney, 299 Kan. 903, 908, 327
P.3d 425 (2014). Because Spencer's complaint is that the district court did not depart
enough in failing to grant him probation, we may consider the merits of his appeal.

When the extent of a departure is challenged, our "'standard of review is abuse of
discretion, measuring whether the departure is consistent with the purposes of the
guidelines and proportionate to the crime severity and the defendant's criminal history.'
[Citation omitted.]" State v. Cato-Perry, 50 Kan. App. 2d 623, 629, 332 P.3d 191 (2014),
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rev. denied 302 Kan. 1013 (2015). A judicial action constitutes an abuse of discretion if
the action "(1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or
(3) is based on an error of fact." State v. Waller, 299 Kan. 707, 722, 328 P.3d 1111
(2014). Spencer 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).

Here, the district court cited Spencer's long-standing alcohol addiction and the fact
that he turned himself in shortly after he absconded as grounds for the durational
departure. But the district court rejected probation on the grounds that Spencer was a
danger to the community given his lengthy criminal history, history of violent offenses,
and the fact that he committed his present crime while incarcerated for another crime.
Given the record before us and the statutory presumption of imprisonment, we cannot say
the district court's refusal to grant Spencer probation constitutes an abuse of discretion.

Affirmed.