State v. Willard

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NOT DESIGNATED FOR PUBLICATION

No. 113,649

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JAMES WILLARD,
Appellant.


MEMORANDUM OPINION

Appeal from Crawford District Court; LORI A. BOLTON FLEMING, judge. Opinion filed May 6,
2016. Affirmed.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., BUSER and BRUNS, JJ.

Per Curiam: James D. Willard contends that the district court abused its
discretion by partially denying his motion for a departure sentence. Although the district
court granted him a downward durational departure from 216 months to 168 months,
Willard does not believe this departure was sufficient. Specifically, he argues that the
district court erred by not granting him a more favorable durational departure than the
one to which the State agreed to recommend in a plea agreement. Willard also asserts that
the State should have been required to prove his criminal history beyond a reasonable
doubt. Because we do not find either of Willard's arguments to be meritorious, we affirm
his sentence.
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FACTS

In the early morning hours of October 12, 2013, the Pittsburg Police Department
found Arlin Evans lying on the sidewalk in front of an apartment building with a stab
wound to his chest. Evans died shortly after being transported to a nearby hospital. Later
that afternoon, police officers questioned Willard, and he eventually admitted to stabbing
Evans.

Under the terms of a plea agreement signed on November 21, 2014, Willard
agreed to plead no contest to voluntary manslaughter, a severity level 3 person felony.
Moreover, Willard agreed that his criminal history category was B. Although his
presumptive sentence would have been 216 months' imprisonment, the State agreed as
part of the plea agreement to support a request for a downward durational departure to
168 months and to allow Willard to argue for an even greater durational departure.
Willard entered his plea on the same day he signed the agreement, and it was accepted by
the district court.

On December 31, 2014, Willard filed a motion for durational departure, arguing
that substantial and compelling reasons existed to grant a departure, including: (1) he had
"no brushes with the law for an extended amount of time"; (2) he was attending college at
the time of the stabbing; (3) Evans was the aggressor in the altercation that led to his
death; (4) Willard was aware of Evans' aggressive nature; (5) Evans "aggressively hunted
[him] down" and threatened him to the degree that he reasonably feared for his life; (6)
Willard took every opportunity to deescalate the situation before stabbing Evans; (7)
Willard played a minor or passive role in the crime; (8) if his actions were not
subjectively reasonable, they amounted to nothing more than a reasonable lapse in
judgment; (9) Willard suffered from AIDS, resulting in a heightened sense of fear for his
safety as well as a lowered ability to heal from wounds; (10) Willard suffered from a
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severe narcotics addiction and was under the influence of drugs and alcohol on the night
of the offense; and (11) Willard had the support of his wife and child.

The district court conducted the sentencing hearing over 2 days on January 30,
2015, and February 6, 2015. On the first day of the sentencing hearing, Willard testified
in support of his motion. In summary, Willard testified that he was homeless and
unemployed at the time of the stabbing. He stated that he had moved to Pittsburg to go to
college but that he stopped attending school when he got sick and lost his job. Willard
explained that he suffered from AIDS, which makes it harder for his body to heal from
wounds.

Willard described his relationship with Evans as a neighbor, coworker, and friend.
The two of them had worked construction jobs together and would occasionally hang out
and get high together. The evening before the stabbing, Willard claimed that he went to
Evans' residence to use the restroom. When Willard arrived, Evans was evidently getting
high with a friend. After using the restroom, Willard left and returned to his niece's
apartment where he was staying. At the apartment, he used methamphetamine, drank a
beer, and took a Xanax pill. Later that night Evans came to the apartment twice to ask
Willard whether he had stolen his cell phone when he was at his residence using the
restroom, which Willard denied.

Around 3:30 a.m. the next day, Evans appeared outside of the apartment
demanding that Willard meet him outside. According to Willard, he knew Evans carried a
knife and he had previously witnessed him cut someone for making an upsetting remark
to his girlfriend. So, Willard took the largest knife he had from his suitcase and took it
with him when he went outside to speak with Evans. Willard claimed that Evans was
angry and continued to accuse him of stealing his phone. Willard testified that Evans
swung at him and hit his hand with "something hard" that did not feel like a fist. Willard
admitted that he responded by stabbing Evans twice before Evans ran away and Willard
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returned to his niece's apartment. Investigators later found a stab wound under Evans' left
arm near his chest as well as a stab wound to his back. Investigators also found multiple
punctures to Evans' jacket that did not correspond to any wounds. Willard testified that he
stabbed Evans because he feared for his life and because he knew it would take him a
long time to heal from an injury.

No other witnesses testified at the sentencing hearing. Following Willard's
testimony, an exhibit listing some certificates of achievement was admitted into evidence.
Furthermore, the State admitted the full transcript and video of Willard's interview with
police officers as well as Evans' autopsy report into evidence. The district court continued
the sentencing hearing to a later date so that it could review the exhibits.

One week later on February 6, 2015, the district court resumed the sentencing
hearing. During argument, Willard's attorney clarified that he was requesting a downward
durational departure to between 5 and 7 years. The State maintained that the district court
should impose the agreed upon term of 168 months' imprisonment. It argued that Willard
did not act in self-defense but that he acted out of anger when he killed Willard. After
considering evidence and arguments of counsel, the district court found that there were
some substantial and compelling reasons to justify a downward durational departure but
only to the extent agreed upon by the parties. Accordingly, the district court sentenced
Willard to serve 168 months in prison and ordered him to pay $6,664.43 in restitution.
Thereafter, Willard filed a timely notice of appeal.

ANALYSIS

Willard contends on appeal that the district court should have granted him a more
favorable downward durational departure. When a defendant challenges the extent of a
downward durational departure, we review the decision of the district court for an abuse
of discretion. In particular, we are to determine whether the departure is consistent with
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the purposes of the sentencing guidelines and whether it is proportionate to the crime's
severity and the defendant's criminal history. State v. Spencer, 291 Kan. 796, 807-08, 248
P.3d 256 (2011). A district court abuses its discretion when its decision is (1) arbitrary,
fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact.
State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).

A district court must impose the presumptive sentence provided by the sentencing
guidelines unless it finds substantial and compelling reasons to impose a departure
sentence. K.S.A. 2015 Supp. 21-6815(a). "Substantial" means something real, not
imagined; something with substance, not ephemeral. "Compelling" means that the case's
circumstances require the district court "to 'abandon the status quo' and to venture beyond
or depart from the ordinary sentence." State v. Rochelle, 297 Kan. 32, 46, 298 P.3d 293,
cert. denied 134 S. Ct. 270 (2013).

If the district court decides to depart, it must state the substantial and compelling
reasons for the departure on the record at the time of sentencing. K.S.A. 2015 Supp. 21-
6815(a). The sentencing statute provides a nonexclusive list of mitigating factors that a
district court may consider in making such a decision. K.S.A. 2015 Supp. 21-6815(c). In
addition, a district court is free to consider nonstatutory mitigating factors as long as the
record supports such factors and "'the use of the factors would be consistent with the
intent and purposes of the sentencing guidelines.'" State v. Hines, 296 Kan. 608, 616, 294
P.3d 270 (2013) (quoting State v. Blackmon, 285 Kan. 719, 725, 176 P.3d 160 [2008]).

Here, the district court granted Willard a downward durational departure from 216
months to 168 months. However, it denied Willard's request for an additional downward
durational departure after considering the evidence presented at the sentencing hearing—
which included Willard's testimony, the transcript and video of his interview with police,
and Evans' autopsy report. In other words, after considering the evidence and the
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arguments of counsel, the district court concluded that there were not substantial and
compelling reasons to grant a greater downward durational departure beyond 168 months.

In explaining its decision on the record, the district quoted several statements
Willard made during the police interview suggesting that he had not acted in self-defense
when he stabbed Evans. For instance, the district court pointed to a comment made by
Willard to an investigator in which he stated:

"If he come up on me, you know, I am going to tell you that, and I ain't bullshitting with
you. And if I am already mad, I am mad, and I will hurt you quick. I mean, I don't care
who it is, if he is angry and he is tempting like that."

The district court went to great lengths to review the facts on the record. In
addition, the district court explained those things that it found to be true and those things
that it found not to be credible. The district court then explained its rationale for finding
some substantial and compelling reasons to depart. In particular, the district court
ultimately found:

"[T]hat the victim was a participant in the criminal conduct associated with the crime of
conviction; that both the defendant and the victim were frequent users of narcotics . . .
that the defendant suffers from a severe narcotics addiction, and that the use of drugs and
alcohol significantly influenced the behavior of [the] parties that night, and also that Mr.
Willard has family support."

The district court, however, also noted on the record that it did not find it to be
credible that Willard was acting in self-defense when he stabbed Evans.

Willard argues that the circumstances surrounding the stabbing, when viewed as a
whole, support his request for a greater downward durational departure. He does not
claim that the district court's decision was based on an error of fact or law. Accordingly,
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we are left to decide only whether the district court's decision was arbitrary, fanciful, or
unreasonable. To the extent Willard asks us to reweigh the evidence, we are not in a
position to do so. See State v. Llamas, 298 Kan. 246, 254, 311 P.3d 399 (2013).
Moreover, a review of the record reveals that the district court did an excellent job of
weighing the evidence and making the appropriate findings. We conclude that the district
court's decision was reasonable and not arbitrary or fanciful.

Lastly, Willard argues that the district court violated his Sixth and Fourteenth
Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000), by using his prior convictions to increase his sentence without
requiring the State to prove them beyond a reasonable doubt. He acknowledges that our
Supreme Court previously resolved this issue in State v. Ivory, 273 Kan. 44, 41 P.3d 781
(2002). Panels of this court are bound to follow precedent established by our Supreme
Court unless there is an indication that it is departing from the precedent. See State v.
Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). Ivory's progeny does not suggest any such
departure. See State v. Tahah, 302 Kan. 783, 795-96, 358 P.3d 819 (2015) cert. denied,
136 S. Ct. 1218 (2016); State v. Barber, 302 Kan. 367, 386, 353 P.3d 1108 (2015); State
v. Overman, 301 Kan. 704, 716-17, 348 P.3d 516 (2015). As such, the imposition of the
enhanced sentence was not unconstitutional.

Affirmed.