State v. Turner

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NOT DESIGNATED FOR PUBLICATION

No. 120,048


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MARK A. TURNER,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed June 28, 2019.
Affirmed.

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

Candice A. Alcaraz, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., GREEN and POWELL, JJ.

PER CURIAM: Mark A. Turner pleaded guilty to aggravated battery. The trial court
granted him a downward durational departure and sentenced him to 96 months'
imprisonment. On appeal, Turner argues that the district court erred in refusing to grant
him a greater departure. Finding no error, we affirm.

In November 2017, Turner shot another man in the leg after an argument. He later
pleaded guilty to one count of aggravated battery, a severity level 5 person felony.
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Because Turner had a criminal history score of B, his presumptive sentence was a prison
term of 114 to 128 months. The State agreed to recommend a durational departure to 96
months' imprisonment. Turner was free to request a greater departure.

Turner moved for a greater departure, arguing these substantial and compelling
reasons existed: (1) he pleaded guilty, saving the State and the court the time and
expense of a jury trial; (2) his most recent felony conviction was 10 years earlier; (3) he
had a wife and four children; (4) he had employment before his arrest; (5) he had been a
trustee in jail and completed 45 courses while incarcerated; (6) he underwent a drug
evaluation and needed no treatment; and (7) he had support from community members.
For these reasons, he asked the district court to depart to a prison term of less than 96
months.

At sentencing, the district court found substantial and compelling reasons to
depart. The court noted that Turner had pleaded guilty, avoiding a jury trial. The court
also acknowledged the work that Turner had done since being incarcerated. And the court
affirmed that Turner's last felony conviction was almost 10 years ago. But the court
added that Turner's current conviction was his fourth battery conviction. As a result, the
court granted a departure but sentenced Turner to the State's recommended 96 months'
imprisonment. Turner appeals.

Did the District Court Err by Declining to Grant a Greater Durational Departure?

On appeal, Turner argues the trial court erred in declining to grant a greater
departure. A defendant may appeal the grant of a downward departure that is less than or
different than requested. State v. Looney, 299 Kan. 903, 909, 327 P.3d 425 (2014). When
the defendant challenges the extent of a durational departure, "the appellate 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
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criminal history." State v. Spencer, 291 Kan. 796, 807-08, 248 P.3d 256 (2011). A
judicial action constitutes an abuse of discretion (1) if no reasonable person would take
the view adopted by the district court; (2) if it is based on an error of law; or (3) if it is
based on an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).
Turner does not argue that the district court made an error of law or fact, so we must
determine whether any reasonable person could agree with the district court's decision.

K.S.A. 2018 Supp. 21-6815 allows a district court to impose a departure sentence
for substantial and compelling reasons. Substantial means something of substance, not
imaginary or fleeting. And compelling implies that the case's facts force the court to go
beyond what is ordinary. State v. Reed, 302 Kan. 227, 250, 352 P.3d 530 (2015).

Turner argues that his substantial and compelling reasons were overwhelming and
justified a greater departure. He reiterates the same reasons he argued to the district court.
And he is right that many of his reasons could support a departure sentence. See, e.g.,
State v. Crawford, 21 Kan. App. 2d 859, 908 P.2d 638 (1995) (affirming departure
sentence based in part on family support, employment record, and rehabilitation efforts).

But Turner's current crime of conviction was a violent crime. He also had a
criminal history score of B, which included three other battery convictions: a 1999
felony battery conviction; a 2008 felony aggravated battery conviction; and a 2016
misdemeanor domestic battery conviction. One of the sentencing guidelines' purposes is
ensuring that prison space is reserved for serious, violent offenders who present a threat
to public safety. State v. Favela, 259 Kan. 215, 233, 911 P.2d 792 (1996). The district
court's refusal to grant a greater departure is consistent with this purpose because Turner
was a violent offender.

The record also shows the district court carefully considered the reasons for and
against granting a greater downward departure. At sentencing, the court explained,
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"These cases are never very easy to come up with a number . . . . The State
argues, and appropriately, that the plea bargain they reached and that they argued for the
96 months does still give you a substantial amount of time off, two years. Defense is
saying long record—long ago record and look what he's done since that time. And I am
not even close to disagreeing with that. What you have done is very good.
"So in reviewing everything, while I do find substantial and compelling reasons
to depart from the 120 months, with the record and the history, I do maintain the 96-
month agreement or recommendation by the State is appropriate . . . ."

Given Turner's current crime of conviction and his criminal history, a reasonable person
could agree with the court's decision.

Turner also argues his incarceration "will not serve society." He highlights the
expense involved in incarcerating an inmate. He claims he needed treatment to change his
behavior, but the KSGA focuses on incarcerating criminals instead of rehabilitating them.
And he adds that the ABA Standards for Criminal Justice recognize a preference for
community-based rehabilitative programs and recommend nonincarcerative punishment
for all but the most serious offenses.

Turner did not present any of these arguments to the district court. Nor did he
request a dispositional departure. The district court does not act unreasonably by failing
to grant a dispositional departure that was not requested or by failing to consider reasons
for a departure that were not argued.

And while Turner's incarceration may cost the State money, it will still serve
society in other ways. While in prison, Turner will be incapacitated, protecting the public
from a violent offender. And not only will prison deter Turner from committing future
crimes, it will also deter the public from doing so by showing the community that
someone who commits aggravated battery will likely be sent to prison.
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In sentencing Turner, the district court carefully considered Tuner's reasons for
departure as well as his crime of conviction and criminal history. The length of sentence
the court chose is a reasonable departure sentence. Accordingly, we conclude that the
district court did not abuse its discretion.

Did the Trial Court Err in Sentencing Turner Based on His Prior Convictions?

Turner also argues that the district court violated Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it increased his sentence
based on his criminal history without first requiring the State to prove his criminal history
to a jury beyond a reasonable doubt. Turner did not object to the use of his criminal
history this way, but our Supreme Court has held that appellate courts can consider the
application of Apprendi for the first time on appeal. State v. Anthony, 273 Kan. 726, 727,
45 P.3d 852 (2002). Turner concedes that our Supreme Court has already rejected this
argument in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). He raises it now to
preserve it for possible federal review.

This court is duty bound to follow our Supreme Court precedent, absent some
indication the Supreme Court is departing from its previous position. State v. Meyer, 51
Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). There is no such indication here. Thus,
the district court did not err in using Turner's criminal history without first requiring the
State to prove it beyond a reasonable doubt to a jury.

Affirmed.