State v. Stephens

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NOT DESIGNATED FOR PUBLICATION

No. 118,263

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

CHRISTOPHER LEE STEPHENS,
Appellee.


MEMORANDUM OPINION

Appeal from Labette District Court; JEFFRY L. JACK, judge. Opinion filed January 11, 2019.
Sentence vacated and case remanded with directions.

Dale T. Callahan, deputy county attorney, and Derek Schmidt, attorney general, for appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.

Before HILL, P.J., BUSER, J., and SIDNEY R. THOMAS, District Judge, assigned.

PER CURIAM: The State of Kansas appeals the Labette County District Court's
downward departure sentence for Christopher Lee Stephens. The State argues that the
sentencing court erred by failing to notify the parties of its intent to depart beyond the
terms of the plea agreement and abused its discretion in the extent of the departure.
Stephens responds that the State was not entitled to notice beyond the defense motion for
downward departure and that the departure was a reasonable exercise of the sentencing
court's discretion. We find there was legal error that requires us to vacate the sentence
and remand for resentencing in accordance with this opinion.
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On May 17, 2016, Labette County Corrections Officer Ty Gatton smelled
marijuana coming from a cell. Officer Gatton searched Stephens because he was one of
the occupants of the cell. A makeshift pipe made from a rolled-up playing card that
contained residue was located from the search. Subsequent testing indicated the residue
was THC.

The State filed a complaint charging Stephens with trafficking in contraband in a
correctional facility in violation of K.S.A. 2015 Supp. 21-5914(a)(1) and (b)(2)(A) and
possession of tetrahydrocannabinol in violation of K.S.A. 2015 Supp. 21-5706(b)(7).

As part of plea negotiations, the parties reviewed Stephens' criminal history report.
The report indicated that Stephens had a criminal history score of A. Trafficking in
contraband is a severity level 5 nonperson felony if the contraband is a controlled
substance such as marijuana. See K.S.A. 2015 Supp. 21-5914(b)(2)(A). The standard
sentence in box 5A on the nondrug sentencing grid is 130 months' presumptive prison.
K.S.A. 2015 Supp. 21-6804(a).

In plea negotiations, the parties agreed that Stephens would plead guilty or no
contest to trafficking in contraband in a correctional facility. In exchange, the State
agreed to dismiss the possession charge and recommend a downward durational
departure to the standard sentence in the 6A box on the nondrug grid, which is 43 months'
imprisonment. The parties prepared and executed a written plea agreement. The State
signed the agreement, which contained the standard disclaimer that the judge was "not
bound by the terms of any plea agreement in regards to sentencing recommendations."

Later that day, Stephens entered a plea of no contest pursuant to the plea
agreement. The State dismissed the possession charge pursuant to the plea agreement.
The district court accepted the plea and found Stephens guilty of trafficking in
contraband in a correctional facility, a severity level 5 nonperson felony. The district
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court ordered a presentence investigation (PSI) report and set the matter for sentencing.
As part of the PSI report, the investigator asked Stephens about his crime of conviction
and his role in it:

"When asked to list his version of the present offense, Mr. Stephens stated
'The[re] was wee[d] smoking going on. The jailer, came back and I grabbed the
homemade pipe that was made in the cell and put it in my waistband and got stripped out
I got caught with it.'
"When asked what extent do you admit responsibility for the present offense Mr.
Stephens stated 'For grabbing the homemade pipe.'
"When asked to describe his reason for committing the present offense Mr.
Stephens stated 'I was already locked up and the guy who came in 4 days before this
happened had brought the wood and matches in so when they smoked I did to[o]. And I
grabbed the cell made pipe and was the only one who got into trouble. I was under a lot.
And made poor judgement [sic]. And now have to pay for it. Which I feel is a lot of
time.'"

Stephens filed a motion for a downward durational departure from a presumptive
sentence of 130 months to a sentence of 43 months. The motion cited five factors for the
departure:
 the amount of marijuana involved;
 the lack of harm to persons or property;
 the length of Stephens' existing prison sentence and his otherwise good
behavior;
 the State had agreed to the durational departure of 43 months;, and
 that a consecutive sentence of 43 months is a very significant punishment
for the crime that was committed.

No other motions or objections were filed.

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Stephens' sentencing hearing was on June 29, 2017. His criminal history score was
A. The State explained the rationale behind the agreed departure, stating that it was
"[b]ased on, I guess equitable factors," and made no argument either against the departure
motion or in favor of an aggravated sentence. Stephens' counsel responded:

"I know he knew better and he regrets this, of course very much, and it was a very very
very small amount of marijuana, but it was a violation. Having it in the jail is obviously
significant so we would ask that you show some leniency on him. We think the 43
months is a lot, you know, also to serve for this. But at the same time, we appreciate the
leniency shown by the County Attorney in agreeing to it also."

Stephens declined to speak on his own behalf.

In sentencing Stephens, the court said it was "troubled even by 43 months for this
offense." The sentencing court then compared the crime of conviction—trafficking in
contraband—to other crimes such as involuntary manslaughter (severity level 5),
aggravated assault with a deadly weapon (severity level 7), aggravated battery with a
deadly weapon (severity level 7), and aggravated assault with a deadly weapon on a law
enforcement officer (severity level 6). The sentencing court concluded: "[T]he guidelines
are saying . . . that being caught with a marijuana smoking device, with a little bit of
residue in it, should be punished the same as shooting at a law enforcement officer. I just
don't think that's . . . right." The court went on to compare the crime of conviction to
other severity level 5 crimes, including sexual relations by a jailer with an inmate,
aggravated sexual battery, and certain indecent liberties with a child.
In conclusion the sentencing court said, "I just don't think this rises to that level" and "I
think I have to use my judgment and temper what I think would be a[n] inequitable and
unjust application of the law to the particular facts in this case." The district court
sentenced Stephens to 16 months in prison. After pronouncing the sentence, the
sentencing court said, "[A]nother factor that entered into my consideration here was that
Mr. Stephens has taken responsibility for his actions."
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Neither party objected at the sentencing hearing. The State later filed a notice of
appeal.

Notice of Intent to Depart

The State argues the sentencing court was required to give notice to the parties that
it was going to depart differently than the downward durational departure the parties
agreed to in their plea agreement. Stephens argues that the State did not preserve this
argument for appeal. Stephens alternatively argues the State had notice of his motion for
departure and no additional notice was required for the court to depart differently than the
plea agreement of the parties.

The general rule is that issues not raised before the trial court cannot be raised on
appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014) (failure to advise
defendant of possible juvenile sentencing may not be raised for the first time on appeal);
State v. Cheffen, 297 Kan. 689, 698, 303 P.3d 1261 (2013) (whether a trial judge failed to
comply with K.S.A. 22-3421 to confirm the jury's verdict may not be raised for the first
time on appeal).

Moreover, Supreme Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 34) requires an
appellant to explain why an issue that was not raised below and should be considered for
the first time on appeal. That rule requires issues to be separate and begin with a citation
to the appropriate standard of appellate review. In State v. Williams, 298 Kan. 1075,
1085, 319 P.3d 528 (2014), the Supreme Court held that litigants who fail to comply with
this rule risk a ruling that the issue is improperly briefed, and the issue will be deemed
waived or abandoned. Thereafter, the Supreme Court held that Rule 6.02(a)(5) would be
strictly enforced. State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015).

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The State did not raise this issue before the sentencing court and in its brief for this
appeal did not explain why it was not raised at sentencing. Moreover, the State did not
cite any specific standard of appellate review for this issue. Finally, the State offered no
response to Stephens' argument that no additional notice is required if a sentencing court
intends to go beyond the recommended length of a properly filed departure request by
one of the parties. For all these reasons, we find the State has not properly briefed this
issue and we deem that the State has waived or abandoned it. Williams, 298 Kan. at 1085.

Abuse of Discretion in Departure Sentence

The State claims the sentencing court abused its discretion in departing beyond the
agreement of the parties. The State primarily asserts there were not adequate departure
factors cited on the record by the sentencing court. More specifically, the State argues the
sentencing court inappropriately relied on a comparison to other crimes, or its
disagreement with where the crime should fit into the sentencing guidelines, as a basis for
departing. The State further argues the only other factor cited by the sentencing court was
not supported by the record. Finally, the State asserts the amount of the departure by the
sentencing court was arbitrary, unreasonable, and an abuse of discretion.

Since the State did not object at sentencing or adequately explain why it did not
object, Stephens argues the State again failed to preserve this issue for appeal. Stephens
further argues the sentencing court did state substantial and compelling reasons for the
departure on the record and the sentence imposed was reasonable given the facts of the
case. Concerning whether this issue is properly before us, we note that K.S.A. 2015 Supp.
21-6820(a) explicitly grants both the State and a defendant the right to appeal a departure
sentence. One exception to this right to appeal is a sentence that complies completely
with a plea agreement between the parties. See K.S.A. 2015 Supp. 21-6820(c)(2); State v.
Cooper, 54 Kan. App. 2d 25, 28, 394 P.3d 1194 (2017), rev. denied 306 Kan. 1322
(2017). In our present case, the sentencing court did not just follow the sentencing
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recommendations agreed to in the plea—it granted a departure beyond the agreement of
the parties.

Moreover, at the sentencing hearing, the State clearly indicated the reasons it
believed the plea agreement should be followed. This is not an instance where an issue is
being raised by a party "that was not contested in district court." See State v. Brinklow,
No. 96,231, 2008 WL 940690, at *11 (Kan. App. 2018) (unpublished opinion), rev'd on
other grounds 288 Kan. 39, 200 P.3d 1125 (2009). As a result, we find this issue is
properly before us. The standard for reviewing departure sentences depends on the issue.
State v. Bird, 298 Kan. 393, 397, 312 P.3d 1265 (2013). That case instructs:

"When we consider whether the record supports an articulated reason for departing, we
review for substantial competent evidence. In contrast, when we determine whether a
particular factor can 'ever, as a matter of law, be substantial and compelling in any case,'
our review is unlimited. Finally, when the record supports the articulated departure
reasons and the articulated reasons are legally valid, we apply an abuse of discretion
standard to determine whether a particular mitigating factor constituted a substantial and
compelling reason to depart. [Citations omitted.]" 298 Kan. at 397-98.

When abuse of discretion is the standard, abuse occurs if the judicial action is:

"(1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken
the view adopted by the trial court; (2) based on an error of law, i.e., if the discretion is
guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., if
substantial competent evidence does not support a factual finding on which a prerequisite
conclusion of law or the exercise of discretion is based." State v. Reed, 302 Kan. 227,
249-50, 352 P.3d 530 (2015).

A sentence is to be within the standard range identified for that offense by the
sentencing grid unless "substantial and compelling" reasons are set forth on the record to
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depart. K.S.A. 2015 Supp. 21-6815(a); Bird, 298 Kan. at 397. Our Supreme Court has
further instructed:

"'To be substantial the reason must be real, not imagined, and of substance, not
ephemeral.' A reason is 'compelling' when it 'forces the court, by the facts of the case, to
abandon the status quo and to venture beyond the sentence that it would ordinarily
impose.'
"'Although K.S.A. 21-4716(c) [see K.S.A. 2015 Supp. 21-6815(c)] contains a list
of potential departure factors, the list is nonexclusive, and a sentencing court can rely on
nonstatutory factors to depart as long as the factors are consistent with the principles
underlying the KSGA. Regardless of whether the district court cites statutory factors,
nonstatutory factors, or a combination of both, '"[r]easons which may in one case justify
departure may not in all cases justify a departure."' [Citations omitted.]" Reed, 302 Kan.
at 250.

In summarizing the purpose of the Kansas Sentencing Guidelines Act (KSGA) our
Supreme Court has said:

"[T]he principal purpose in enacting the KSGA was to '"standardize sentences so that
similarly situated offenders would be treated the same, thus limiting the effects of racial
and geographic bias."' The sentencing guidelines attempt to accomplish this goal by
applying two controlling factors to determine an offender's sentence for a felony
conviction: the severity level of the current crime of conviction and the offender's
criminal history score, which represents the number and severity of the offender's prior
convictions and/or juvenile adjudications. [Citations omitted.]" State v. Keel, 302 Kan.
560, 574, 357 P.3d 251 (2015).

A fair reading of the sentencing transcript reveals that the primary reason the
sentencing court granted the departure was what it viewed as an injustice of the severity
level of this crime compared to what the court viewed as crimes that are more serious.
Our appellate courts have been very clear that it is legal error for the sentencing court to
depart from the standard sentencing range based on its view that the crime was
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improperly classified. See Reed, 302 Kan. at 252 ("To the extent that the district judge
relied on any disparity in the sentencing guidelines between the parole eligibility dictated
for an attempted crime and a completed crime, it was legal error to do so"); State v. Reed,
No. 115,013, 2016 WL 6396313, at *4 (Kan. App. 2016) (unpublished opinion) ("Here,
obviously, the primary factor relied upon by the court is erroneous and cannot be the
basis for a departure sentence. The judge once again used the disparity between an
attempted and completed crime when he ruled that the degree of harm was less
here . . . ."). See, e.g., State v. Reed, 248 Kan. 792, 798, 811 P.2d 1163 (1991) (The
legislature has the exclusive role of providing for the punishment of convicted
criminals.); State v. Keeley, 236 Kan. 555, 560, 694 P.2d 422 (1985) ("The power to
prescribe the penalty to be imposed for the commission of a crime rests exclusively with
the legislature, not the courts."); State v. Heath, 21 Kan. App. 2d 410, Syl. ¶ 5, 901 P.2d
29 (1995) ("A trial court's general disagreement with the Kansas Sentencing Guidelines
Act and/or its belief that the legislature may have incorrectly classified a crime are not
substantial and compelling reasons for entering a departure sentence.").

In short, we find the sentencing court committed legal error in using what it
viewed as a disparity in the severity level of this crime as compared to other crimes as its
primary basis to depart. That was an abuse of its discretion. See Reed, 302 Kan. at 250.
After pronouncing the sentence, the district court said, "Another factor that entered into
my consideration here was that Mr. Stephens has taken responsibility for his actions."
When evaluating a defendant's acceptance of responsibility, a panel of this court has said,
"[I]t does not appear that this factor, taken alone, rises to the level of a substantial and
compelling justification for departure." State v. Valanzuela, No. 99,675, 2009 WL
1858236, at *6 (Kan. App. 2009) (unpublished opinion).

Here, the district court references the factor as an afterthought, immediately after
pronouncing the sentence. The factor was not a substantial reason for the departure as
there is no real articulation on the record of the basis for this factor. See State v.
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Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008) ("To be substantial the reason must
be real, not imagined, and of substance, not ephemeral.").

In sum, the sentencing court committed legal error, which equates to an abuse of
discretion, by departing downward based on what the sentencing court perceived as a
disparity in the sentences set by the Legislature for different crimes. Moreover, since we
find no substantial and compelling reasons are properly set forth in the record, we vacate
Stephens' sentence and remand the case for resentencing consistent with this opinion. As
a result, we do not need to address the State's final contention that the sentencing court
abused its discretion in the amount it chose to depart beyond the plea agreement.

We vacate Stephens' sentence and remand with directions consistent with this
opinion.