Opinion
No. 110,254.
2015-02-27
STATE of Kansas, Appellant, v. Derek Michael FEVURLY, Appellee.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.Adam Y. Zentner, assistant county attorney, and Derek Schmidt, attorney general, for appellant.Janine Cox, of Kansas Appellate Defender Office, for appellee.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.
Adam Y. Zentner, assistant county attorney, and Derek Schmidt, attorney general, for appellant. Janine Cox, of Kansas Appellate Defender Office, for appellee.
Before BUSER, P.J., LEBEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Derek Michael Fevurly pled no contest to attempted trafficking in contraband in a correctional institution and possession of marijuana. Before sentencing, Fevurly filed a motion for a downward durational departure. The district court granted the motion and sentenced Fevurly to a controlling sentence of 24 months' imprisonment, to be served concurrently with any previous terms. The State appeals, arguing that the sentence imposed was illegal under the Kansas Sentencing Guidelines Act (KSGA), which required the new sentence be served consecutive to any previous sentence. The State also argues the district court's reasons for departing were inadequate to justify its decision to depart from the presumptive sentence.
Facts
On March 2, 2012, Fevurly entered into a written plea agreement, wherein he agreed to plead no contest to one count of felony possession of marijuana with one prior conviction, and one count of attempted trafficking in contraband in a correctional institution. Fevurly committed these offenses while on felony probation in case No.2010–CR–881, and while on misdemeanor probation in case Nos.2009–CR–479 and 2010–CR–954. The plea agreement was expressly conditioned on Fevurly appearing for sentencing as ordered, but the parties agreed that they would be permitted to present any argument to the court related to the term of the sentence to be imposed.
On April 6, 2012, Fevurly failed to appear for his scheduled sentencing hearing, thereby breaching the terms of his plea agreement. A bench warrant was issued for his arrest. Fevurly eventually was arrested in Colorado on April 30, 2013, and was extradited to Kansas to appear for sentencing. According to the presentence investigation (PSI) report, Fevurly faced a presumptive prison sentence of 28 to 32 months for the possession of marijuana charge, and 11 to 13 months for the attempted trafficking in contraband charge. The PSI reported that any sentence imposed should run consecutive to prior sentences under the terms of the KSGA because Fevurly was on felony probation at the time he committed his offenses.
Before sentencing, Fevurly filed a motion for a downward durational departure. In support of his motion, Fevurly alleged that (1) his sentence would “by law run consecutive to another case” so he would be facing a significant period of incarceration; (2) he had no violent criminal history, and he had a strong desire to avoid illegal drugs upon his release from prison; (3) he had accepted responsibility for his actions; and (4) in light of current overcrowding in the Kansas Department of Corrections and the nonviolent nature of his criminal behavior, a reduction from the standard sentence was warranted.
On July 12, 2013, the district court conducted Fevurly's sentencing hearing. The State opposed Fevurly's departure motion, arguing there were no grounds that would justify a departure in his case. It asserted that Fevurly had a significant criminal history and that his current offense was committed while on felony probation in another case. The State asked the district court to impose a standard 30–month prison sentence consecutive to Fevurly's other cases as required by the KSGA.
Fevurly's uncle and mother spoke on his behalf and asked the court for leniency in sentencing. Fevurly's uncle said that Fevurly had completed a treatment program and was looking to become a productive member of society. Fevurly's mother also said that her son had completed a rehabilitation program and had sought mental health treatment. Fevurly's mother said he decided to take responsibility and sought her help in turning himself in. Defense counsel asked the district court to impose a sentence that was “appropriate and fair, something that will obviously punish him for his behavior but also something that would take into account his particular situation as addressed by his family members.” Fevurly also acknowledged his mental health and substance abuse issues and expressed a desire to create a life that would make everyone proud.
After argument, the district court discussed Fevurly's history of substance abuse. The district court stated that it had lectured Fevurly in the past about the need to get his life in order, but those lectures had failed. The judge stated, “So at this point, it appears to the Court that forced sobriety is the only thing that maybe will turn your life around.” The court stated its belief that Fevurly would need 2 years to redirect himself and start thinking about a life without drugs. The judge concluded:
“The Court believes that a mitigated sentence is appropriate in this case, and the Court will grant and find that there are substantial and compelling reasons to depart because of your—because of the nature of the types of offenses ... that's historically been going on. And so the Court—and your motivation towards rehabilitation as well as seeking sobriety as a future for yourself.”
With respect to the conviction for possession of marijuana, the district court departed from the presumptive guidelines range of 28 to 32 months and imposed a sentence of 24 months' imprisonment. On the conviction for attempted trafficking in contraband, the court imposed a sentence of 12 months' imprisonment to run concurrent with the 24–month sentence just imposed. The judge acknowledged that it would typically run Fevurly's sentences consecutive to those in any other cases, “[b]ut, again, my belief is that two years of forced sobriety is what really needs to get you to turn around, and additional time hopefully is not necessary to gain insight. So the Court is going to run this concurrent with the other sentences.”
Analysis
Illegal sentence
The State argues the district court erred in failing to impose the sentences in this case consecutive to the underlying sentences imposed resulting from revocation of probation in other cases. Specifically, the State argues the court's decision to impose concurrent sentences fails to conform to K.S.A.2014 Supp. 21–6606(c), which necessarily renders the sentences illegal.
Whether a sentence is illegal is a question of law over which we have unlimited review. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). K.S.A. 22–3504(1) allows the court to correct an illegal sentence at any time. An illegal sentence includes one that does not conform to the applicable statutory provision in either the character or the term of authorized punishment. State v. Lawson, 296 Kan. 1084, 1099, 297 P.3d 1164 (2013).
We begin our analysis of the State's issue with K.S.A.2014 Supp. 21–6606(c), which states in relevant part that “[a]ny person who is convicted and sentenced for a crime committed while on probation ... for a felony shall serve the sentence consecutively to the term or terms under which the person was on probation.” K.S.A.2014 Supp. 21–6819(a), however, provides an exception to this statutory directive: “The mandatory consecutive sentence requirements contained in [K.S.A.2014 Supp. 21–6606(c) ] shall not apply if such application would result in a manifest injustice.” Accordingly, a district court's decision to deviate from the statutorily mandated consecutive sentencing requirement is proper only if the court made a finding that imposing consecutive sentences would result in a manifest injustice.
The State argues the district court failed to make a finding that imposing consecutive sentences would result in a manifest injustice. Fevurly disagrees. Although acknowledging the court did not use the phrase “manifest injustice” in its decision, Fevurly argues the explanation provided by the court for its decision is tantamount to such a finding. Specifically, Fevurly points to the court's statement that it typically would run the sentences consecutive but would not do so here because the court believed Fevurly only needed 2 years of forced sobriety to get him turned around.
A sentence results in manifest injustice only when it “ ‘is obviously unfair and shocks the conscience of the court.’ “ Wilkinson v. State, 40 Kan.App.2d 741, 742, 195 P.3d 278 (2008) (quoting State v. Medina, 256 Kan. 695, Syl. ¶ 1, 887 P .2d 105 [1994] ), rev. denied 289 Kan. 1286 [2009] ). “The manifest-injustice requirement presents quite a high hurdle.” 40 Kan.App.2d at 742. Whether a sentence is manifestly unjust must be determined on a case-by-case basis. State v. Cramer, 17 Kan.App.2d 623, 636, 841 P.2d 1111 (1992), rev. denied 252 Kan. 1093 (1993).
In this case, Fevurly never made a manifest injustice argument to the district court, and the district court failed to make a K.S.A.2014 Supp. 21–6819(a) finding of manifest injustice at the sentencing hearing. We are not persuaded by Fevurly's argument that the court stating it believed Fevurly only needed 2 years of forced sobriety to get turned around is tantamount to a finding by the court that imposing consecutive sentences in this case would be “obviously unfair” and “shocking to the conscience of the court.” In the absence of an explicit finding by the court that imposing the statutorily mandated consecutive sentences would result in a manifest injustice, the court's decision to run the sentences concurrently does not conform to the applicable statutory provision and, therefore, is illegal. Lawson, 296 Kan. at 1099. As such, we must vacate Fevurly's sentence and remand the case for resentencing with directions to resentence Fevurly in accordance with the mandates of K.S.A.2014 Supp. 21–6606(c) and K.S.A.2014 Supp. 21–6819(a). If, on remand, the district court determines that manifest injustice would result were it to impose concurrent sentences in Fevurly's case, then the court should clearly state so on the record and identify the evidence upon which it relies to make such a determination.
Downward durational departure
Although we have already determined that we must vacate Fevurly's sentence and remand for resentencing, we note that the State has raised a second issue on appeal-that the district court erred in granting Fevurly's durational departure motion. Because this issue will arise again on remand, we will address it. See State v. Jefferson, 297 Kan. 1151, 1169, 310 P.3d 331 (2013). Specifically, the State claims that the mitigating factors found by the court to support its decision to grant the downward durational departure were not supported by substantial competent evidence in the record. The State further claims that even if there were support in the record, the mitigating factors simply do not qualify as substantial and compelling reasons justifying departure.
We consider the State's contention using a mixed standard of review. First, an appellate court must determine whether substantial competent evidence in the record supports the mitigating factors found by the district court in support of its decision to depart. State v. Bird, 298 Kan. 393, 399, 312 P.3d 1265 (2013). If so, the reviewing court must then determine whether the district court abused its discretion in concluding that the particular mitigating factors constituted substantial and compelling reasons to depart in a particular case. 298 Kan. at 399. Discretion is abused if no reasonable person could take the view of the district court, if the district court ruled based on an error of law, or if it ruled based on an error of fact. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). With regard to whether a mitigating factor found by the sentencing court “can ever, as a matter of law, be substantial and compelling in any case,” our review is de novo. Bird, 298 Kan. at 397–98. An appellate court evaluates each case individually to consider “ ‘the offense of conviction, the defendant's criminal history, and the departure reason stated, as well as the purposes and principles of the Kansas Sentencing Guidelines.’ [Citations omitted.]” State v. Martin, 285 Kan. 735, 744, 175 P.3d 832 (2008).
Mitigating factors supported by substantial competent evidence in the record
In granting Fevurly's departure motion, the district court relied on two mitigating factors: (1) the nature of the types of offenses in Fevurly's history and (2) Fevurly's motivation toward rehabilitation, as well as seeking sobriety as a future for himself. A review of the record reveals that the district carefully considered the motion for durational departure. Although the evidence in support of the durational departure is far from overwhelming, we conclude it is sufficient to support the district court's findings regarding the nature of Fevurly's past offenses and desire to rehabilitate himself. The record reflects that a number of Fevurly's prior convictions were linked to his struggle with sobriety—to wit: two counts of minor in possession of alcohol; three counts of possession of marijuana; and one count of possession of drug paraphernalia. All of Fevurly's convictions were misdemeanors, apart from felony convictions for fleeing or attempting to elude a police officer in 2011 and burglary of a motor vehicle in 2006.
Whether Fevurly was sincere in his motivation to achieve sobriety involves an issue of credibility. Testimony from Fevurly's mother and uncle suggested that Fevurly was motivated to seek rehabilitation and maintain sobriety. Fevurly admitted to the court that he had substance abuse problems and mental health issues. He expressed his desire to make a life for himself of which he and his loved ones could be proud. Certainly, the district judge was in a better position to determine credibility than this court, and it apparently found Fevurly and his family members' testimony to be credible.
Mitigating factors are substantial and compelling reasons to depart
A district court's decision to depart from a guidelines sentence must be supported by substantial and compelling reasons justifying a deviation from the presumptive sentence defined by the legislature. See K.S.A.2014 Supp. 21–6815(a); State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008). “Substantial” means something real, not imagined; something with substance, not ephemeral. “Compelling” means that the circumstances of the case force the sentencing court “to abandon the status quo and to venture beyond the sentence that it would ordinarily impose.” 285 Kan. at 724. “ “ ‘Reasons which may in one case justify departure may not in all cases justify a departure.’ “ [Citation omitted.]” Martin, 285 Kan. at 744.
K.S.A.2014 Supp. 21–6815(c)(1) provides a nonexclusive list of mitigating factors for determining whether substantial and compelling reasons exist. Notably, each of these statutory mitigating factors focus on behaviors and characteristics related to or impacted by the commission of the particular crime:
“(A) The victim was an aggressor or participant in the criminal conduct associated with the crime of conviction.
“(B) The offender played a minor or passive role in the crime or participated under circumstances of duress or compulsion. This factor may be considered when it is not sufficient as a complete defense.
“(C) The offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed. The voluntary use of intoxicants, drugs or alcohol does not fall within the purview of this factor.
“(D) The defendant, or the defendant's children, suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse.
“(E) The degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense.” K.S.A.2014 Supp. 21–6815(c)(1).
Because this list is nonexclusive, our Supreme Court readily has sanctioned consideration of nonstatutory mitigating factors so long as the factor is consistent with the intent and principles of the KSGA. Bird, 298 Kan. at 399. Our Supreme Court has recently identified some of the underlying principles of the sentencing guidelines:
“[I]ncarceration should be reserved for serious/violent offenders who present a threat to public safety; sanctions should be imposed based on harm inflicted; sanctions should be uniform and not related to socioeconomic factors, race, or geographic location; penalties should be clear so as to be understood; individuals should not be sent to prison solely to gain education or job skills; and the system must be rational to allow policymakers to allocate resources. [Citation omitted.]” 298 Kan. at 399.
In addition, the KSGA directs that “[t]he sentencing court may consider in all cases a range of alternatives with gradations of supervisory, supportive and custodial facilities at its disposal so as to permit a sentence appropriate for each individual case, consistent with these guidelines and the permitted dispositional and durational departures contained in [the KSGA].” K.S.A.2014 Supp. 21–6802(b).
At sentencing in this case, the district court departed from a standard presumptive sentence of 30 months, down to 24 months based on the nature of Fevurly's past offenses and the desire to rehabilitate himself. We note that this court previously has held a district court may not base its decision to depart solely upon a defendant's criminal history or solely upon his or her amenability to rehabilitation. See State v. Honey, 34 Kan.App.2d 232, 246, 116 P.3d 747, rev. denied 280 Kan. 987 (2005) (a particular defendant's amenability to rehabilitation is not, in and of itself, a substantial and compelling reason to depart from the presumptive guidelines sentence); State v. Meyer, 25 Kan.App.2d 195, 198, 960 P.2d 261, rev. denied 265 Kan. 888 (1998) (court may not base its decision for departure solely upon a defendant's criminal history). Nevertheless, a departure may be justified by the collective factors even if no factor, standing alone, would justify a departure. Bird, 298 Kan. at 398.
In considering the fact that Fevurly's past offenses were primarily related to his drug addiction, the district court observed a common theme of addiction. Despite having “a lot of talents and ... a lot of potential,” the district court commented that Fevurly seemingly could not escape the cycle of drug abuse. The judge stated his belief that “it may take as much as two years to get a person redirected, thinking about life without drugs, if they're motivated to do that. And with the history, the long history, I think it's going to take all of two years.” In conjunction with the fact that Fevurly's past offenses were primarily related to his drug addiction, the court also found as a matter of fact that Fevurly demonstrated a clear desire to rehabilitate himself. By reducing Fevurly's possession of marijuana sentence from 30 months to 24 months, the district court sought to ensure that Fevurly would have “two years of forced sobriety” without imposing what it viewed as an unnecessarily long term of imprisonment.
When aggregated, we find the mitigating factors cited by the district court in support of departure constitute substantial and compelling reasons to depart. The court's decision to depart based on the aggregation of those factors is not so arbitrary, fanciful, or unreasonable that no reasonable person in the position of the court would have reached a similar decision. See State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). Accordingly, it was within the district court's discretion to enter a durational departure sentence in this case.
In sum, we vacate Fevurly's sentence because the district court did not correctly apply K.S.A.2014 Supp. 21–6606(c) and K.S.A.2014 Supp. 21–6819(a). We remand for resentencing, in which the district court may consider both the durational departure and the statutes governing consecutive sentences. See State v. Gracey, 288 Kan. 252, 260, 200 P.3d 1275 (2009) (remanding for sentencing court to consider both a durational and dispositional departure where sentence court had lawfully imposed a durational departure but not a dispositional departure because the court wrongly concluded that a dispositional departure was not permitted).
Sentence vacated and remanded with directions.