State v. Biggs

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NOT DESIGNATED FOR PUBLICATION

No. 119,286

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

HALLEE L. BIGGS,
Appellant.

MEMORANDUM OPINION

Appeal from Sherman District Court; SCOTT SHOWALTER, judge. Opinion filed December 21,
2018. Affirmed.

Submitted by the parties for summary disposition pursuant to K.S.A. 2017 Supp. 21-6820(g) and
(h).

Before MALONE, P.J., STANDRIDGE and POWELL, JJ.

PER CURIAM: Hallee L. Biggs appeals her presumptive prison sentence after
pleading no contest to a drug felony. We granted Biggs' motion for summary disposition
pursuant to Supreme Court Rule 7.041A (2018 Kan. S. Ct. R. 47). There was no response
from the State. After review, we affirm.

Biggs pled no contest to an amended charge of possession of marijuana with intent
to distribute, a severity level 3 drug felony. In exchange for her plea, the State dismissed
the remaining charges and agreed to recommend the standard number in the appropriate
sentencing guidelines gridbox and a dispositional departure to probation, provided Biggs'
criminal history score was not A or B. The presentence investigation report scored Biggs'
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criminal history as F, which, based on her crime of conviction, gave her a presumptive
prison sentence of 59, 56, or 52 months. At sentencing on January 11, 2018, Biggs had no
objection to her criminal history score, and the district court sentenced Biggs to the
standard number of 56 months in prison. But in light of the parties' agreement to a
dispositional departure, the district court stated "a downward departure is acceptable and
is found to be appropriate." The district court then granted Biggs a dispositional departure
and placed her on probation with community corrections for 36 months. Biggs made no
argument for a lesser prison sentence.

On appeal, it is unclear to us the nature of Biggs' complaint given that summary
dispositions do not involve briefing. Biggs' motion for summary disposition claims that
the district court "erred in imposing a presumptive term of imprisonment when a
durational departure remained an option." But she then cites to authority stating that
presumptive sentences are not subject to appellate review. See K.S.A. 2017 Supp. 21-
6820(c)(1); State v. Huerta, 291 Kan. 831, 835-36, 247 P.3d 1043 (2011) (reaffirming
that K.S.A. 21-4721(c)(1) [now K.S.A. 2017 Supp. 21-6820(c)(1)] eliminates appeals of
presumptive sentences).

However, Biggs was not given a presumptive sentence. According to the transcript
and sentencing journal entry, she was given a dispositional departure to probation, and a
departure sentence is reviewable on the grounds that the district court did not depart
enough. See State v. Looney, 299 Kan. 903, 908-09, 327 P.3d 425 (2014). When the
extent of a departure is challenged, our standard of review is for an abuse of discretion.
State v. Spencer, 291 Kan. 796, 807-08, 248 P.3d 256 (2011). "Judicial discretion is
abused if the action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person
would have taken the view adopted by the trial court; (2) is based on an error of law . . . ;
or (3) is based on an error of fact." State v. Jones, 306 Kan. 948, Syl. ¶ 7, 398 P.3d 856
(2017). Biggs bears the burden to show an abuse of discretion by the district court. See
State v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012). However, Biggs does
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not even assert that the district court's failure to grant her a durational departure on top of
her dispositional departure constitutes an abuse of discretion. Even if she had, our review
of the record fails to persuade us that no reasonable person would have taken the view
adopted by the district court. The district court did not abuse its discretion, and we affirm
Biggs' sentence.

Finally, for the first time on appeal, Biggs argues her sentence is illegal because it
was improperly enhanced due to the district court increasing her criminal history score by
considering her criminal history which had not been proven to a jury beyond a reasonable
doubt. See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000). However, the Kansas Supreme Court has rejected this argument, and we are duty
bound to follow it. See State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002) (use of
criminal history to enhance sentence not unconstitutional); State v. Morton, 38 Kan. App.
2d 967, 978-79, 174 P.3d 904 (Court of Appeals duty bound to follow Supreme Court
precedent), rev. denied 286 Kan. 1184 (2008).

Affirmed.