State v. Unruh

1
NOT DESIGNATED FOR PUBLICATION

No. 116,383

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JEDEDIAH S. UNRUH,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed
September 22, 2017. Affirmed.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before POWELL, P.J., MALONE, J., and LORI A. BOLTON FLEMING, District Judge,
assigned.

PER CURIAM: As part of a plea agreement with the State, Jedediah S. Unruh pled
no contest to a single count of felony possession of marijuana. In exchange, the State
agreed to recommend the low number in the appropriate sentencing guidelines grid box
and probation. Unruh's anticipated criminal history score was C, which would place his
sentence in a border box, meaning there was no presumption concerning imprisonment
versus probation and the presumptive low number prison sentence would be 28 months.
However, Unruh's criminal history score calculated to be a B, meaning his sentence was
2
presumptive imprisonment and the low number in the sentencing grid box was 32
months. As a result, while the district court granted a durational departure sentence to 28
months, consistent with the plea agreement, it refused to grant a dispositional departure to
probation. Unruh now appeals, arguing the district court abused its discretion in failing to
durationally depart further. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Unruh entered into a plea agreement with the State in which he would plead no
contest to felony possession of marijuana in exchange for the State's sentencing
recommendation of the low number within the applicable sentencing guidelines grid box
and probation based upon the presumption that Unruh possessed a criminal history score
of C and his sentence would, therefore, fall within a border box.

However, the presentence investigation report (PSI) revealed that Unruh's criminal
history score was B instead of the anticipated C score due to the aggregation of several
person misdemeanors. This likely prompted Unruh to file a motion for a downward
dispositional and durational sentencing departure.

At sentencing, the district court granted the motion for durational departure,
imposed a 28-month prison sentence, but denied the motion for dispositional departure to
probation. When doing so, the court noted that the sentence was equivalent to what
Unruh had bargained for in his plea agreement with the State—the low number within the
applicable sentencing grid box for a criminal history C score.

Unruh now appeals claiming the district court failed to depart enough.

3
DID THE DISTRICT COURT ERR IN REFUSING TO EXTEND
A MORE SUBSTANTIAL SENTENCING DEPARTURE?

The sole issue Unruh raises on appeal concerns the extent to which the district
court departed from the presumptive guidelines sentence. Surprisingly, Unruh limits his
argument to the extent of the durational departure on his prison term. He does not
challenge the court's refusal to grant a dispositional sentencing departure to probation.

Previously, our court has held that a criminal defendant who obtains a favorable
departure sentence may not appeal the extent of that departure. See State v. Crawford, 21
Kan. App. 2d 169, 170, 897 P.2d 1041 (1995) ("We interpret the [Kansas Sentencing
Guidelines Act] to limit appellate jurisdiction by either the State or the defendant to those
instances in which the sentencing court has departed adversely to the appealing party.").
However, in 2014, the Kansas Supreme Court overruled this long-standing precedent to
hold "all departure sentences are subject to appeal under K.S.A. 21-4721(a) unless
appellate jurisdiction is divested by a more specific provision." State v. Looney, 299 Kan.
903, 909, 327 P.3d 425 (2014).

When the extent of a departure is challenged on appeal, we review the matter for
an abuse of judicial discretion. State v. Jolly, 301 Kan. 313, 324, 342 P.3d 935 (2015);
State v. Spencer, 291 Kan. 796, 807-08, 248 P.3d 256 (2011); State v. Cato-Perry, 50
Kan. App. 2d 623, 629, 332 P.3d 191 (2014), rev. denied 302 Kan. 1013 (2015). The
party alleging an abuse of judicial discretion bears the burden of establishing the abuse.
State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).

An abuse of judicial discretion may occur when the court misapplies the
applicable law or pertinent facts. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587
(2015). Unruh has not pointed to any mistake of law or fact. Consequently, we may find
an abuse of discretion only if the decision of the district court was so arbitrary, fanciful,
4
or unreasonable that no other person in the position of the district court would have
reached a similar decision. See State v. Davisson, 303 Kan. 1062, 1065, 370 P.3d 423
(2016).

Unruh cannot demonstrate that the extent of the district court's sentencing
departure was unreasonable primarily because he did not request a more substantial
departure. In his motion to depart, Unruh simply asked for a dispositional and/or
durational departure. He did not specify the extent of the downward durational sentencing
departure he believed he was entitled to receive. According to the record, Unruh and the
State were both surprised by the inclusion of an additional person misdemeanor that
aggregated with other misdemeanor convictions to raise Unruh's criminal history score to
B. The district court took this mutual misunderstanding into account when it imposed a
reduced penalty equivalent to the mitigated penalty for a person with a criminal history
score of C (28 months), just as the State had agreed to recommend based on the
assumption that Unruh's criminal history score would have been C. In essence, Unruh
obtained the sentence he anticipated when entering into the plea agreement with the State.
Accordingly, he cannot now complain that the district court somehow abused its
discretion by failing to depart further.

Moreover, even if Unruh had requested a more substantial durational departure
than that granted by the district court, a reasonable person in the position of the district
court might have easily refused to impose a more substantial departure under the
circumstances presented in the case. Unruh had completed drug treatment on at least one
prior occasion while in prison, but he continued to struggle with substance abuse. The
record demonstrates that he violated the conditions of his bond by testing positive for
marijuana and methamphetamine after his conviction but before sentencing in this case.
Based on these circumstances, Unruh has not demonstrated that no other reasonable
person in the position of the district court would have imposed a 28-month prison
5
sentence rather than a more substantial departure, and Unruh has not established that the
sentencing departure constituted an abuse of judicial discretion.

Affirmed.