State v. Young

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NOT DESIGNATED FOR PUBLICATION

No. 116,933

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TIMOTHY P. YOUNG,
Appellant.


MEMORANDUM OPINION

Appeal from Jackson District Court; NORBERT C. MAREK, JR., judge. Opinion filed February 2,
2018. Affirmed.

Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, associate solicitor general, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., STANDRIDGE, J., and STUTZMAN, S.J.

PER CURIAM: Timothy P. Young pled guilty to one count of possession of
marijuana with intent to distribute, a severity level 4 drug nonperson felony, and one
count of driving while a habitual violator, a class A misdemeanor. The district court
granted a downward durational departure and imposed a 24-month prison sentence. On
appeal, Young argues the district court abused its discretion by denying Young's motion
for a dispositional departure to probation and instead only granting him a downward
durational departure. Finding no abuse of discretion, we affirm.


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FACTS

Young was charged with possession of more than 25 grams but less than 450
grams of marijuana with the intent to distribute (a severity level 3 drug nonperson
felony); possession of marijuana; no drug tax stamp; possession of drug paraphernalia;
driving while his license was canceled, suspended, or revoked; and driving while a
habitual violator. Young pled no contest to possession of less than 25 grams of marijuana
with the intent to distribute (a severity level 4 drug nonperson felony) and driving while a
habitual violator. After Young's criminal history score came back higher than he
expected, he moved to withdraw his plea prior to sentencing. The district court granted
the motion and allowed Young to withdraw his plea.

While on bond in this case, Young was arrested for driving under the influence
and possession of marijuana in Shawnee County, Kansas. Following a hearing, Young
was placed back on bond in this case with the additional condition that he follow the
conditions of his bond in Shawnee County.

After plea negotiations, Young pled no contest to possession of less than 25 grams
of marijuana with the intent to distribute and driving while a habitual violator. Given the
severity level of the crime and his criminal history score of C, the presumptive sentence
range for Young's conviction was 37 to 42 months in prison. Before sentencing, Young
filed a motion asking the district court to grant him a dispositional, or alternatively a
durational, departure. Young listed the following mitigating factors to support his request
for a departure sentence: (1) his criminal history was all related to the use of alcohol and
drugs; (2) the marijuana found on him was "not packaged for resale"; (3) his criminal
history established that he had an addictive tendency toward alcohol and drug use, and
the goal of the State of Kansas is to rehabilitate drug users rather than incarcerate them;
(4) he was receiving drug treatment and was in good standing with his probation officer
in a Shawnee County case; (5) he had "put forth a tremendous effort in rehabilitating
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himself during the pendency of this action"; and (6) he acknowledged responsibility for
his actions by entering a plea of no contest to two charges. Following arguments from the
parties at sentencing, the district court denied the motion for dispositional departure to
probation but granted a downward durational departure, imposing a 24-month prison
sentence and 24 months of postrelease supervision.

ANALYSIS

On appeal, Young argues the district court erred in denying his motion for
dispositional departure to probation and instead granting only a durational 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). An appellate court
reviews the extent of a district court's departure sentence for an abuse of discretion. State
v. Spencer, 291 Kan. 796, 807-08, 248 P.3d 256 (2011). An abuse of discretion occurs
when judicial action is arbitrary, fanciful, or unreasonable; is based on an error of law; or
is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). The
party asserting that the district court abused its discretion bears the burden of showing an
abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012). Young does
not argue that the district court made a factual or legal error. Thus, he can only succeed
on appeal if establishes that no reasonable person would have agreed with the district
court's decision.

A district court must impose the presumptive sentence unless it finds that
substantial and compelling reasons warrant a departure. K.S.A. 2016 Supp. 21-6815(a).
In determining if substantial and compelling reasons for departure exist, "'[t]his court has
defined "substantial" as "something that is real, not imagined; something with substance
and not ephemeral," while the term "'compelling'" implies that the court is forced, by the
facts of a case, to leave the status quo or go beyond what is ordinary.'" State v. Jolly, 301
Kan. 313, 323, 342 P.3d 935 (2015).
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Under K.S.A. 2016 Supp. 21-6815(c)(1)-(2), the district court may consider both
mitigating and aggravating factors in determining whether substantial and compelling
reasons exist for a departure sentence. "Although K.S.A. 21-4716(c) [now K.S.A. 2016
Supp. 21-6815(c)] contains a list of potential departure factors, the list is nonexclusive,
and a sentencing court can rely on nonstatutory factors to depart as long as the factors are
consistent with the principles underlying the [Kansas Sentencing Guidelines Act]." State
v. Bird, 298 Kan. 393, 397, 312 P.3d 1265 (2013).

Reiterating the five mitigating factors he originally presented to the sentencing
court, Young claims on appeal any reasonable person would consider these factors
substantial and compelling enough to grant a dispositional departure to probation. Young
further claims that although the marijuana he possessed was in the presumptive range for
distribution, the drug was not individually packaged and therefore should be deemed to
have been intended for personal use, making his actions less harmful than is typical for
the charge.

We agree that the reasons alleged by Young may qualify as compelling factors in
support of a departure sentence. See, e.g., K.S.A. 2016 Supp. 21-6815(c)(1)(E) (degree of
harm or loss attributed to current crime of conviction was significantly less than typical
for such offense); Bird, 298 Kan. at 400-01 (among other factors, district court relied on
nonviolent nature of past crimes in determining defendant was not threat to society as
factor in support of departure); State v. Crawford, 21 Kan. App. 2d 859, 861, 908 P.2d
638 (1995) (among other factors, court found rehabilitative efforts may be compelling
factor in support of departure). But Young's claim that no reasonable person would have
sentenced him to prison is without merit. As pointed out by the State, Young picked up
additional drug and alcohol related charges while this case was pending and while he was
attending outpatient treatment. This shows a continuation of criminal behavior, not
amenability to treatment. See State v. Trimble, 21 Kan. App. 2d 32, 38, 894 P.2d 920
(1995) (offenses committed on supervised release may be considered in criminal history
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as well as aggravating factors justifying sentence departure as defendant's propensity to
continue committing crime).

The district court considered these points raised in determining Young's sentence.
The district court stated the "[m]aximum penalty on your crime was 42 months, and that
was after you did some bargaining with the county attorney." Based on our review of the
record, we conclude Young has failed to establish that the district court's decision was
arbitrary, fanciful, or unreasonable. The district court did not abuse its discretion in
denying Young's motion for a dispositional departure.

Affirmed.