State v. Allen

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NOT DESIGNATED FOR PUBLICATION

No. 118,774

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

PAUL G. ALLEN,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed March 1,
2019. Affirmed.

Carol Longenecker Schmidt, 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 MALONE, P.J., HILL, J., and WALKER, S.J.

PER CURIAM: Paul G. Allen appeals from the district court's denial of his motion
for a dispositional departure to probation on his felony sentences, arguing that the court
abused its discretion. He also contends that his constitutional rights were violated when
he was sentenced with a criminal history score of A without the State having to prove his
prior convictions to a jury. Finding no error, we affirm.



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FACTS

Allen pleaded guilty to possession of methamphetamine, possession of
paraphernalia, and driving while suspended. In exchange for his pleas both parties agreed
to recommend the high number in the grid box for the possession of methamphetamine
charge, 12 months in jail for possession of paraphernalia, and 6 months in jail for driving
while suspended. The parties also agreed to recommend that all sentences run
consecutively. Additionally, the parties agreed to recommend a dispositional departure on
the methamphetamine charge because of Allen's age, health problems, willingness to
enter drug treatment programs, and his acceptance of responsibility.

Before sentencing, Allen moved for a dispositional departure to probation. He
argued that there were substantial and compelling reasons to depart because: (1) the State
joined in the request for a departure, (2) Allen took responsibility for his actions by
pleading guilty, (3) his most recent felony conviction had occurred seven years before the
current case, (4) he suffered from severe health problems, and (5) he cared for his wife
who was also ill.

At sentencing, the district court noted that Allen had a criminal history score of A.
Both parties asked the court to follow the plea agreement. The court denied Allen's
request for probation. The court expressed sympathy for Allen's health issues but
believed that Allen's 32-year criminal history, which included other drug convictions and
violent felonies, showed an inability or unwillingness to change. However, the district
court did grant a durational departure and sentenced Allen to a reduced term of 20
months' imprisonment for possession of methamphetamine, 12 months' imprisonment for
possession of paraphernalia, and 6 months' imprisonment for driving while suspended.

Allen has timely appealed from the district court's denial of his request for a
dispositional departure and from his criminal history score of A.
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ANALYSIS

Allen's request for a downward dispositional departure

Allen first argues the district court abused its discretion because no reasonable
person would have denied his request for a downward dispositional departure.

We review the district court's decision to deny a departure motion for abuse of
discretion. State v. Ibarra, 307 Kan. 431, 433, 411 P.3d 318 (2018). A judicial action
constitutes an abuse of discretion if (1) no reasonable person would take the view adopted
by the trial court, (2) it is based on an error of law, or (3) it is based on an error of fact.
State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

As an initial matter, we have jurisdiction to review the district court's decision to
deny Allen's dispositional departure motion because the court also granted a durational
departure and Allen's sentence is outside the presumptive sentence for his crime. See
State v. Looney, 299 Kan. 903, 909, 327 P.3d 425 (2014) (appellate courts have
jurisdiction to review departure sentence when sentence was shorter than presumptive
sentence).

Under K.S.A. 2017 Supp. 21-6815(a) a district court "shall impose the
presumptive sentence . . . unless the judge finds substantial and compelling reasons to
impose a departure sentence." "Substantial" means something real, not imagined;
something with substance, not ephemeral. "Compelling" means that the court is forced,
by the facts of the case, to leave the status quo or go what is beyond ordinary. State v.
Reed, 302 Kan. 227, 250, 352 P.3d 530 (2015).

Here, it is clear to us that the district court did not abuse its discretion. The court
considered Allen's stated reasons for a departure and found them substantial and
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compelling enough to grant a durational departure. But just because there are substantial
and compelling reasons to grant a durational departure does not mean that a dispositional
departure is also warranted. See State v. Sage, No. 111,045, 2014 WL 7152370, at *3
(Kan. App. 2014) (unpublished opinion).

The district court believed that Allen was not amenable to probation. The court
considered Allen's criminal history which included more than 60 other convictions
ranging from traffic violations to violent felonies. Several of Allen's convictions were for
drug related offenses. The court also considered Allen's own statement that he used
narcotics to self-medicate to deal with his illness. Ample evidence existed to show that
Allen was not amenable to probation.

A reasonable person could have reached the same decision as the district court
based on this information. While Allen presented substantial and compelling reasons to
support a durational departure, those same reasons did not warrant a dispositional
departure. The district court did not abuse its discretion in denying Allen's motion for a
dispositional departure. See Marshall, 303 Kan. at 445.

Proof of criminal history

Allen's second argument on appeal is that the State should have been required to
prove his criminal history to the jury before he could be subjected to an increased
sentence because of his criminal history score. Allen acknowledges that the Kansas
Supreme Court has previously decided this issue against him in State v. Ivory, 273 Kan.
44, 46-47, 41 P.3d 781 (2002).

We are duty bound to follow Kansas Supreme court precedent, absent some
indication that court is departing from its previous position. State v. Meyer, 51 Kan. App.
2d 1066, 1072, 360 P.3d 467 (2015). Because the Kansas Supreme Court clearly decided
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this issue in Ivory, and there is no indication the court is departing from its previous
position, we reject Allen's argument.

Affirmed.