Opinion
10,9032 10,9033.
06-05-2015
STATE of Kansas, Appellee, v. Terrell Marland DAVIS, Appellant.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek. Schmidt, attorney general, for appellee.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek. Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
The Supreme Court vacated this court's dismissal of Terrell Marland Davis' appeal in case 11–CR–183 for lack of jurisdiction and remanded his case to consider his claim the district court abused its discretion by denying his motion for a dispositional departure sentence in light of State v. Looney, 299 Kan. 903, 327 P.3d 425 (2014). Davis had pled guilty to various charges filed in three separate criminal cases (11–CR–183, 11–CR–579, and 12–CR–56). At sentencing, the district court granted Davis' request for a durational departure in 11–CR–183, reducing the sentence by one-half to 64 months' imprisonment on his presumptive prison sentence. The sentences in 11–CR–579 and 12–CR–56 were imposed concurrent to 11–CR–183. Davis also requested dispositional departures to probation in 11–CR–183 and 12–CR–56 that were denied by the district court. Davis now appeals the denial of his dispositional departure motions in 11–CR–183 and 12–CR–56. Davis did not appeal the sentence in 11–CR–579. Finding no abuse of discretion, we affirm.
Davis was charged with one count of aggravated burglary and two counts of theft in case 11–CR–183 involving incidents at Oak Park Mall in Johnson County. While case 11–CR–183 was pending, the State charged Davis with one count of felony theft after two prior theft convictions in case 12–CR–56. Although not part of this appeal, Davis was charged with identity theft in case 11–CR–579.
Davis and the State reached a global plea agreement in the three cases. Davis agreed to plead guilty in 11–CR–183 to aggravated burglary with the State's agreement to dismiss the two theft charges. At the same hearing, Davis agreed to plead guilty to felony theft in 12–CR–56, and the State agreed to recommend the sentence run concurrent with all other sentences. Davis also pled guilty in 11–CR–579.
Prior to the sentencing hearing, Davis filed motions seeking both a dispositional and durational departure sentences. Davis cited the age of his two prior person felony convictions and asserted the degree of harm in his current cases was less than typical for the offenses. As other grounds supporting his request for a durational and dispositional departure, Davis also asserted that he was seeking mental-health counseling and working full time.
At Davis' sentencing hearing, both Davis and the State presented various witnesses who testified in support of Davis or who described Davis' crimes. The district court found that Davis' aggravated burglary in 11–CR–183 involved less harm than the typical offense—it was based on Davis' violation of an order that he not return to mall property—and granted a downward durational departure sentence from the presumptive 114 to 128–month prison sentence to a 64–month imprisonment term. In 12–CR–56, Davis was sentenced on his felony theft conviction to 16 months in prison to run concurrent with 11–CR–183.
Before considering Davis' dispositional motion, the district court agreed to continue the sentencing hearing in order for Davis to undergo a psychological evaluation to support his request for a dispositional departure. At a subsequent hearing, a mentalhealth evaluation was presented to the court and Davis' counsel reiterated his arguments for a dispositional departure sentence. After hearing the evidence and arguments, the district court denied the motion for a dispositional departure, referencing Davis' long-standing history of theft, fraud, and similar crimes. Davis timely appealed.
This court summarily dismissed Davis' challenge to the denial of his dispositional departure request for lack of jurisdiction based on upon State v. Crawford, 21 Kan.App.2d 169, 897 P.2d 1041 (1995), and rejected Davis' Apprendi v. New Jersey, 530 U.S. 466, 477, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), challenge to the use of his criminal history score in calculating his sentence.
Davis petitioned the Supreme Court for review. The Supreme Court granted part of his petition and remanded it for this court to consider whether the district court abused its discretion in denying his request for a dispositional departure in 11–CR–183 in light of Looney. The State contends Looney does not apply to dispositional departure sentences. The State's argument, however, is unpersuasive. In Looney, our Supreme Court ruled that a defendant could appeal a favorable departure sentence. 299 Kan. at 907–08, 327 P.3d 425. In that case, pursuant to a plea agreement, the district court sentenced Looney to the agreed-upon downward durational departure sentence. The parties had made no agreement on a dispositional departure to probation other than Looney was free to request it and the State would oppose it. The district court denied Looney's request for probation. Looney appealed from that denial. Our Supreme Court held that appellate courts have jurisdiction over appeals like Looney's because of the plain language of the statute providing that “ ‘[a] departure sentence is subject to appeal by the defendant or the state.’ “ 299 Kan. at 908, 327 P.3d 425 (quoting K.S.A. 21–4721[a] ). Since Looney received a departure sentence, he could appeal the denial of his dispositional motion probation. 299 Kan. at 908–09, 327 P.3d 425.
Thus, this court possesses jurisdiction to consider Davis' challenge to the denial of his request for a dispositional departure. When the extent of a departure is challenged, “ ‘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 criminal history.’ [Citation omitted.]” State v. Cato–Perry, 50 Kan.App.2d 623, 629, 332 P.3d 191 (2014), petition for rev. filed September 15, 2014. To show an abuse of discretion has occurred, the challenging party must establish the judicial action was: (1) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would have taken the view adopted by the trial court; (2) based on an error of law, i.e., the court's discretion was guided by an erroneous legal conclusion; or (3) based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
Davis supports his dispositional departure request by showing:
• His efforts to obtain mental-health treatment;
• His diagnosis of attention deficit hyperactivity disorder (ADHD) and depression;
• The community support he received;
• The court recognized that the degree of harm in 11–CR–183 was less than typical; and
• His witnesses testified Davis could be successful on probation.
The district court fully explained its decision to deny Davis' request for a dispositional departure. In reviewing the psychological report, the district court concluded that Davis' criminal actions were not related to his ADHD and other mental health issues and he was not diagnosed with kleptomania. The district court focused on Davis' criminal history since 2001 with repeated acts of burglary, criminal damage, theft, attempted robbery, and credit card fraud. Thus, the district court found Davis was not amenable to probation.
The district court's concerns are supported by the record. As noted by the State during the sentencing hearing, Davis had repeatedly committed criminal acts since 2001 except for the times he was in jail or prison. In addition, Davis had been out of jail only 5 months when he committed the crimes charged in 11–CR–183. While those charges were pending, Davis was charged with two counts of identity theft in 11–CR–579 and then later with the theft charge in 12–CR–56. Here, Davis' long-standing history of criminal behavior outweighed any recent changes in his life, including his recent mental-health treatment and full-time employment. Under the facts of this case, the district court did not abuse its discretion in denying Davis' request for a dispositional departure to probation in 11–CR–183.
In his brief submitted upon remand, Davis again raises the Apprendi challenge to the sentence imposed in 12–CR–56. However, the Supreme Court order remanding this case to the Court of Appeals was limited to this court's prior ruling dismissing the appeal in 11–CR–183 for lack of jurisdiction in light of Looney. This court previously summarily affirmed the Apprendi issue under Rule 7.041 (2014 Kan. Ct. R. Annot. 65). The longstanding mandate rule codified in K.S.A. 60–2106(c) states that the Supreme Court's mandate and opinion “shall be controlling in the conduct of any further proceedings necessary.” See State v. Collier, 263 Kan. 629, Syl. ¶ 4, 952 P.2d 1326 (1998) ; State v. DuMars, 37 Kan.App.2d 600, 603, 154 P.3d 1120 (“[A] district court is obliged to effectuate the mandate and may consider only those matters essential to the implementation of the ruling of the appellate court.”), rev. denied 284 Kan. 948 (2007); State v. Downey, 29 Kan.App.2d 467, 470–71, 27 P.3d 939, rev. denied 272 Kan. 1421 (2001).
Accordingly, this court will not readdress Davis' previously rejected arguments relating to Apprendi, and the district court did not err in denying Davis' request for a dispositional departure in 11–CR–183.
Affirmed.