State v. Butcher

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NOT DESIGNATED FOR PUBLICATION

No. 119,305

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TRAVIS R. BUTCHER,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed August 9, 2019.
Appeal dismissed.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BRUNS, P.J., MALONE, J., and STEVEN E. JOHNSON, District Judge, assigned.

PER CURIAM: Travis R. Butcher appeals his presumptive sentence following his
conviction of reckless second-degree murder. Butcher claims the district court erred by
denying his motion for a downward durational departure. But because this court cannot
review any sentence that is within the presumptive sentence for the crime, we dismiss
Butcher's appeal for lack of jurisdiction.

After a night of drinking with friends, Butcher offered Joey Valentine a ride.
Butcher sped out of the bar parking lot, drove around 80 miles per hour in a residential
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neighborhood, and ran his car into a tree. The impact split Butcher's car into two pieces
and killed Valentine. Butcher's blood-alcohol level was nearly three times the legal limit.
The State charged Butcher with one count of involuntary manslaughter while under the
influence of alcohol. The State later amended the information to add an alternative count
of reckless second-degree murder.

Butcher pled guilty to murder in the second degree, a severity level 2 person
felony. In exchange for Butcher's plea, the State agreed to dismiss the involuntary
manslaughter charge, recommended Butcher's sentence run consecutive to any other
existing cases, and recommended the district court sentence Butcher to the presumptive
mitigated sentence under the Kansas Sentencing Guidelines Act (KSGA). Butcher's
presentence investigation (PSI) report showed that his criminal history score was I. His
presumptive sentence ranged from a mitigated term of 109 months, a standard term of
117 months, to an aggravated term of 123 months in prison.

Before sentencing, Butcher moved for a downward durational departure sentence.
Butcher's motion identified three grounds for a departure sentence: (1) He accepted
responsibility for the crime; (2) suitable rehabilitative programs outside prison were more
likely to be effective than imprisonment; and (3) the degree of harm was less than typical
because the victim, Valentine, was a willing passenger in the vehicle.

At sentencing, the State recommended the district court sentence Butcher to 109
months' imprisonment. Butcher argued for a departure sentence of 70 months because he
accepted responsibility for the crime and did not require Valentine's family to go through
a long trial. Butcher also presented a favorable letter from his employer. Butcher
explained that a 70-month sentence, instead of a 109-month sentence, would allow him to
stay in contact with his employer after sentencing and enroll in treatment sooner. Finally,
Butcher argued the degree of harm was less than typical for a second-degree murder case
because the victim "maybe made some poor decisions" by choosing to ride with Butcher.
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After considering the arguments, the district court found there were no substantial
and compelling reasons to depart from the presumptive sentence. The district court found
that Butcher had accepted responsibility for the crime but that this fact carried little
weight. The district court also found that Butcher could profit from rehabilitation
programs while in prison. The district court found that the degree of harm to the victim
was not any less than typical because the victim died as a result of Butcher's actions. The
district court considered the letter from Butcher's employer but found that it did not
provide a substantial and compelling reason to depart. The district court sentenced
Butcher to the presumptive mitigated term of 109 months' imprisonment. Butcher filed an
untimely notice of appeal, but this court granted his motion to file an appeal out of time.

On appeal, Butcher claims the district court erred by denying his motion for a
downward durational departure. He argues that the district court abused its discretion "by
making a legal error regarding whether Mr. Valentine's volunteering to be a passenger
with an obviously impaired driver could be a substantial and compelling reason for a
departure." He also argues that the district court relied on facts outside the record in
denying the departure motion. Finally, he argues that the district court failed to consider
the additional departure factors argued by counsel at the sentencing hearing.

The State asserts that this court lacks jurisdiction to review Butcher's presumptive
sentence. Alternatively, the State argues that the district court did not make a legal error
in denying Butcher's departure motion. In his reply brief, Butcher argues that the "legal
errors of the district court created jurisdiction for review of [his] sentence by this Court."

We will first address the State's claim that this court lacks jurisdiction to review
Butcher's presumptive sentence. Whether jurisdiction exists is a question of law over
which our scope of review is unlimited. State v. Smith, 304 Kan. 916, 919, 377 P.3d 414
(2016). To the extent that resolution of this issue requires statutory interpretation, we also
have unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).
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The State is correct that under the KSGA, the appellate courts lack jurisdiction to
consider a challenge to the denial of a motion for a departure sentence because the courts
lack jurisdiction to consider appeals from presumptive sentences. K.S.A. 2018 Supp. 21-
6820(c)(1) provides that on appeal from a judgment or conviction entered for a felony
committed on or after July 1, 1993, the appellate court shall not review any sentence that
is within the presumptive sentence for the crime. "Merely moving for a departure
sentence does not grant the right of appeal to a defendant, if the result of the motion is a
presumptive sentence." State v. Huerta, 291 Kan. 831, 835, 247 P.3d 1043 (2011); State
v. Grebe, 46 Kan. App. 2d 741, 745, 264 P.3d 511 (2011) (holding that appellate courts
lack jurisdiction to review the denial of motions for departure sentences because courts
lack jurisdiction to review presumptive sentences).

But in State v. Warren, 297 Kan. 881, 883, 304 P.3d 1288 (2013), our Supreme
Court held that an appellate court has jurisdiction to review a defendant's claim that the
district court misinterpreted its own statutory authority to grant a departure sentence. In
that case, the defendant was convicted of introducing a controlled substance into a
correctional facility and was sentenced to 122 months in prison. The defendant asked the
district court to depart from the duration of his sentence because he brought a small
amount of drugs into the correctional facility. K.S.A. 21-4716(c)(1)(E) (now K.S.A. 2018
Supp. 21-6815[c][1][E]) allowed a departure sentence when "'[t]he degree of harm . . .
attributed to the current crime of conviction was significantly less than typical for such an
offense.'" 297 Kan. at 885-86. Despite this statutory authority, the district court found it
had no authority to depart from the presumptive sentence based on the amount of drugs.
On appeal, the State argued that the court lacked jurisdiction to review the defendant's
presumptive sentence. Our Supreme Court disagreed and ruled that when a district court
misinterprets its own statutory authority and refuses to consider a defendant's request for
a departure sentence that the district court has statutory authority to consider, the
appellate court may take up the limited question of whether the district court properly
interpreted the sentencing statute. 297 Kan. 881, Syl. ¶ 1.
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Butcher argues that his case is like Warren because the district court committed a
legal error at his sentencing hearing and did not understand its own authority to grant a
departure sentence. But the record does not support Butcher's claim. Unlike in Warren,
the district court here considered its authority to impose a departure sentence. The district
court weighed all of Butcher's arguments presented in his motion. The district court even
stated that it had authority to go beyond the facts presented in the motion and included its
review of the employer's letter. After considering all the factors presented, the district
court did not find any substantial and compelling reasons to depart and sentenced Butcher
to a presumptive term of 109 months' imprisonment. We have no jurisdiction to review
this presumptive sentence for Butcher's crime of conviction.

Although we find that we lack jurisdiction to review Butcher's presumptive
sentence, we will address the merits of his claims on appeal especially to the extent that
he argues in his reply brief that we have jurisdiction to address his claims. Butcher first
claims that the district court abused its discretion "by making a legal error regarding
whether Mr. Valentine's volunteering to be a passenger with an obviously impaired driver
could be a substantial and compelling reason for a departure." In district court, Butcher
argued that Valentine voluntarily entered Butcher's car, so he was entitled to a departure
sentence because the degree of harm or loss caused by the crime was significantly less
than typical for second-degree murder, a mitigating factor under K.S.A. 2018 Supp. 21-
6815(c)(1)(E). For the first time on appeal, Butcher claims the district court also should
have considered Valentine's voluntary entry into Butcher's car as a mitigating factor
under K.S.A. 2018 Supp. 21-6815(c)(1)(A) because Valentine participated in the criminal
conduct associated with Butcher's conviction. In his reply brief, Butcher argues that our
court has jurisdiction over the appeal because the district court made a "legal error" and
limited its statutory authority to consider the departure motion by not addressing whether
Valentine's actions fell under K.S.A. 2018 Supp. 21-6815(c)(1)(A).

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Butcher's argument lacks merit. In district court, Butcher only argued that
Valentine's voluntary entry into the car entitled Butcher to a departure sentence because
the degree of harm was less than typical for the crime. Butcher never argued that
Valentine participated in the criminal conduct associated with Butcher's conviction. In
denying the departure motion, the district court limited its ruling to the argument Butcher
made at sentencing, but this fact does not mean that the district court failed to understand
its statutory authority to grant the departure motion.

Next, Butcher argues that the district court relied on facts outside the record in
denying the departure motion. At sentencing, Butcher stated that "other than this incident
and history with some other DUI's [Butcher] was a productive member of society." In
response, the State pointed out that Butcher's criminal history score did not include his
2008 DUI diversion and that incident had put Butcher on notice about the dangers of
drinking and driving. Butcher did not object at the hearing to the State's reference to his
2008 DUI diversion, and he made no claim that the prior diversion did not exist.

Butcher's 2008 DUI diversion was not included in his PSI report or otherwise
admitted into evidence at the hearing. Butcher now argues on appeal that the district court
"relied heavily on an unproven assertion by the State that [Butcher] had a prior diversion
for DUI in denying [his] motion for departure." In his reply brief, he argues that we have
jurisdiction to review this "legal error" committed by the district court at his sentencing.

Butcher cites State v. Atkisson, 308 Kan. 919, 425 P.3d 334 (2018), to support his
claim. In Atkisson, a Jessica's Law case, the defendant pled no contest to one count of
raping a child under 14 years old. The defendant filed a motion for departure to the
sentencing grid as opposed to the mandatory sentence of life imprisonment. In denying
the motion, the district court referred to a probable cause affidavit—not admitted into
evidence—detailing the facts of a dismissed charge in which the defendant allegedly had
oral sex with a child victim at least four times and intercourse at least six times.
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On appeal, our Supreme Court held that these facts were relevant to the departure
motion because they were presented to rebut the defendant's mitigation claim that he had
no significant criminal history. 308 Kan. at 928. Even so, the Atkisson court found that
the district court abused its discretion because those facts, while relevant, were not
admitted as evidence. 308 Kan. at 929-30. Our Supreme Court found that "many
circumstances cited by the district court considering [the defendant's] departure were
drawn from sources outside the evidentiary record" and "those facts carried significance
with the district court." 308 Kan. at 931. Thus, our Supreme Court reversed and
remanded the case for reconsideration of the departure motion. 308 Kan. at 931.

Atkisson is distinguishable from Butcher's case. First of all, appellate jurisdiction
was not an issue in Atkisson as that case was an appeal of a sentence under Jessica's Law.
More importantly, we reject Butcher's claim that the district court "relied heavily" on the
unproven DUI diversion in denying the departure motion. The State only mentioned
Butcher's DUI diversion to make the point that the incident put Butcher on notice about
the dangers of drinking and driving. Significantly, Butcher was not even asserting that his
lack of criminal history was a ground supporting the departure motion. Butcher is correct
that the 2008 DUI diversion was not in his PSI report or otherwise admitted as evidence,
so the State should not have referred to the case in arguing against the departure motion.
But our review of the record leads us to conclude that this fact played no significant part
in the district court's decision to deny the departure motion. Any error committed by the
district court in considering Butcher's 2008 DUI diversion case was harmless.

Butcher also briefly argues that the district court erred by relying on its "belief"
that rehabilitation programs would be available to Butcher in prison. In rejecting
Butcher's ground for departure that suitable rehabilitation programs outside prison were
more likely to be effective than imprisonment, the district court found that Butcher could
profit from programs in prison and stated: "At least that's what I have been told and what
I understand. And I do believe that there are programs [in prison] that could assist Mr.
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Butcher in dealing with his problems." Butcher now argues that this statement shows that
the district court relied on facts outside the record in denying the departure motion.

This argument has no merit. The district court could rely on its knowledge and
experience that some rehabilitation programs would be available to Butcher in prison.
The district court's stated belief that Butcher could profit from rehabilitation programs in
prison did not amount to relying on facts outside the record to deny the departure motion.

The only other argument Butcher makes on appeal is that the district court failed
to consider the additional departure factors argued by counsel at the sentencing hearing.
Butcher asserts that the district court failed to consider the letter from his employer, but
this claim is not supported by the record. He also points out that the district court did not
mention the weekly Alcoholics Anonymous meetings he was attending and the strong
support system he had from his family and his girlfriend. But in denying the departure
motion, the district court made clear that it "considered the information that has been
presented here." In fact, the record shows that the district court addressed every major
argument Butcher made to support his departure motion. The district court did not have
to mention every fact that had been argued by counsel in support of the motion

To sum up, this court lacks jurisdiction to review Butcher's presumptive sentence
for second-degree murder. The district court weighed all of Butcher's arguments in his
departure motion and did not find any substantial and compelling reasons to depart from
the presumptive sentence. The district court did not misinterpret its statutory authority, so
we lack jurisdiction to review Butcher's presumptive sentence. But even if we would
have jurisdiction over Butcher's appeal, our review of his arguments and the record
discloses no reversible error committed by the district court in denying the motion.

Appeal dismissed.