State v. Brewer

1

NOT DESIGNATED FOR PUBLICATION

No. 115,211

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MATTHEW WILLIAM BREWER,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed November 4, 2016.
Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Amy E. Norton, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., GREEN, J., and WILLIAM S. WOOLLEY, District Judge, assigned.

Per Curiam: Matthew William Brewer appeals the district court's denial of his
motion for a dispositional departure to probation for his conviction of one count of
conspiracy to manufacture methamphetamine. No other challenges to the sentence have
been raised. Brewer fails to demonstrate that the district court abused its discretion when
the district court denied his motion for dispositional departure. Thus, we affirm the
district's court decision.

2

FACTS

On July 10, 2015, Brewer pleaded no contest to conspiracy to commit manufacture
of methamphetamine, a level 1 drug felony, and to endangering a child, a class A person
misdemeanor. At sentencing, the district court found Brewer had a criminal history score
of G, presumptive prison, with a sentencing range of 136 to 155 months. As part of the
plea agreement, the State and Brewer agreed that Brewer could argue for a departure
sentence and that the State would oppose the request.

At the sentencing hearing on October 19, 2015, Brewer argued for a dispositional
departure to probation or, in the alternative, a durational departure. Brewer argued that he
needed drug treatment and rehabilitation and that there was treatment available. He told
the court there was a bed available at New Chance in Dodge City for inpatient treatment.
He argued this need for, and availability of, drug treatment, along with his eagerness to
complete treatment, was a substantial and compelling reason to depart to probation with
community corrections. He also told the court he had completed several courses from the
Set Free Prison Ministries Program. By the date of sentencing, Brewer had completed
eight units of study and received an "A" in each one. Brewer made it a point to let the
court know he did these courses on his own to try and help his rehabilitation

Brewer also argued his criminal history. He had never been convicted of a felony
prior to this case. Brewer's prior convictions were largely traffic incidents and a couple
disorderly conducts but nothing that was substantially related to the current convictions.
He also asked the court to consider the age of the prior convictions.

Brewer also argued his family responsibilities. He told the court that he has three
children, an 11-year-old, a 9-year-old, and a 6-year-old. For the oldest two, Brewer paid
$300 a month in child support. His youngest child was diagnosed with tuberous sclerosis,
which is a rare disease that causes benign tumors that grow in her organs. Because of her
3

disease, she has seizures as well as other symptoms. This child had been living with
Brewer's father. Before Brewer's incarceration, Brewer said he had been taking her to
Children's Mercy Hospital once or twice a month for treatment. Brewer also said he had
been trained on how to use a nervous stimulation device to help with her seizures. He
wanted these issues with his child to be considered a substantial and compelling reason to
depart to community corrections.

Finally, Brewer asked the district court to consider his acceptance of responsibility
as a factor to depart. When considering all the factors, he argued the court should grant
him an opportunity for community corrections. In the alternative, Brewer argued that he
should be granted a sentence that was commensurate with his codefendant, whose
sentence was for a period of 51 months.

The State opposed the departure based on Brewer's actions and criminal history.
Brewer's criminal history reflected 17 prior convictions from 1999 to 2011. The State
argued that Brewer had not accepted responsibility because he pleaded no contest when
he could have pleaded guilty. The State also argued that the youngest child Brewer
referenced was being cared for by the grandfather and Brewer had relinquished custody
of her. Given the conviction for endangering a child, the State argued Brewer should not
even have custody.

The State also argued at sentencing that the departure should not be granted
because of the severity of the drug charge. The State said, "This is the worst type of
offense under our drug laws that you can have, that he was agreeing with and making
methamphetamine and, apparently, based upon his text messages, distributing it to his co-
conspirators, and that does make him the worst kind of offender under Kansas law and
under Kansas drug law." For the reasons argued at sentencing, the State requested that the
court deny the motion for departure and sentence Brewer to the aggravated sentence of
155 months in prison.
4

The district court found that there were several substantial and compelling reasons
to grant a departure for Brewer, including the fact that Brewer had no prior convictions
for drug offenses and no prior felony convictions. The court also considered that Brewer
accepted responsibility for his actions.

The district court granted the request for a durational departure but denied the
motion for a dispositional departure to probation. The district court sentenced Brewer to
84 months in prison on the felony count of conspiracy to commit manufacture of
methamphetamine. On the misdemeanor count of endangering a child, the district court
sentenced Brewer to 12 months in the Saline County Jail to run concurrently with the
sentence on the felony count

ANALYSIS

On appeal, Brewer contends the district court abused its discretion in denying
Brewer's motion for a dispositional departure.

In this case, the district court found substantial and compelling reasons for the
durational departure. The State did not cross-appeal the court's decision to grant the
durational departure. Therefore, we only consider whether the district court abused its
discretion in denying the motion for dispositional departure.

When considering a challenge to the district court's ruling regarding the extent of a
departure sentence, the appellate court reviews the decision for an abuse of discretion.
State v. Jolly, 301 Kan. 313, 324-25, 342 P.3d 935 (2015). When the extent of a departure
is challenged, this court also reviews the matter for an abuse of discretion. State v.
Spencer, 291 Kan. 796, 807-08, 248 P.3d 256 (2011). A judicial action constitutes an
abuse of discretion if the action: (1) is arbitrary, fanciful, or unreasonable; (2) is based on
an error of law; or (3) is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319
5

P.3d 1253 (2014). A district court only abuses its discretion when no reasonable person
would agree with its view or the decision is based on an error of law or fact. State v.
Pfannenstiel, 302 Kan. 747, 760, 357 P.3d 877 (2015). The defendant, Brewer, bears the
burden of establishing an abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d
562 (2012).

Pursuant to K.S.A. 2015 Supp. 21-6815(a), the sentencing judge must impose the
sentence provided for in the sentencing guidelines unless the district judge finds
"substantial and compelling reasons to impose a departure sentence." Substantial is
defined as "something that is real, not imagined, something with substance and not
ephemeral." Jolly, 301 Kan. at 314. Compelling reasons are those that force the court "to
abandon the status quo and to venture beyond the sentence it would ordinarily impose."
State v. Hines, 296 Kan. 608, 620, 294 P.3d 270 (2013). The district court considers both
mitigating and aggravating factors when deciding whether substantial and compelling
reasons exist to grant a departure sentence. K.S.A. 2015 Supp. 21-6815(c)(1) and (2). The
district court is not required to impose a departure sentence. K.S.A. 2015 Supp. 21-
6818(a) ("When a departure sentence is appropriate, the sentencing judge may depart
from the sentencing guidelines." [Emphasis added.]).

On appeal, Brewer argues several mitigating factors that he claims should have
given the court substantial and compelling reasons to grant a dispositional departure.
Specifically, Brewer claims the court should have granted a dispositional departure
because: (1) he had taken steps toward rehabilitation with the ministry courses he took
while in jail; (2) inpatient treatment was available for his drug abuse; (3) he had no prior
felony convictions; (4) his current conviction was unrelated to his prior convictions; (5)
he had family responsibilities; and (6) he had accepted responsibility by entering a plea.
Brewer argues these factors support the conclusion that the district court abused its
discretion when it denied his motion for a dispositional departure.

6

We agree that many of the factors argued by Brewer can be considered by the
court in considering a dispositional departure. See State v. Crawford, 21 Kan. App. 2d
859, 861, 908 P.2d 638 (1995) (Rehabilitative efforts and the defendant's responsibility
for children may also be considered as a factor by the court when determining whether to
grant a downward departure; State v. Bird, 298 Kan. 393, 398, 312 P.3d 1265 (2013)
(The court can also consider that the defendant accepted responsibility for his actions as a
mitigating factor in support of a departure.).

While these reasons may be compelling factors in support of a dispositional
departure sentence, the district court is not required to impose a departure sentence.
K.S.A. 2015 Supp. 21-6818(a). In this case, however, the court did grant a durational
departure. The district court found that Brewer's lack of prior felony convictions, lack of
drug related offenses, and acceptance of responsibility for his actions were substantial
and compelling reasons for a durational departure.

In opposition, the State argues that Brewer pleaded no contest to and was
convicted of the most serious drug offense in the state of Kansas, manufacturing
methamphetamine, a severity level 1 drug offense. Unless a durational departure is
granted, the legislature has provided this crime carries a minimum possible sentence of
138 months, or 11 1/2 years. See K.S.A. 2015 Supp. 31-6805(a).

The State also argues that by pleading no contest, Brewer did not accept
responsibility. Unfortunately for the State, the district court found that acceptance of
responsibility was a factor in granting the durational departure.

Finally, the State argues that the district court heard arguments that Brewer's
criminal actions were increasing in severity and that the pattern of increasing criminality
should weigh against a dispositional departure.

7

When looking at the factors considered by the district court, the district court's
decision was not arbitrary, fanciful, or unreasonable. A reasonable person could
conclude that Brewer should have been given the presumptive dispositional sentence and
sent to prison. Thus, the district court did not abuse its discretion in denying Brewer's
motion for a dispositional departure.

Affirmed.