State v. Carriker

1
NOT DESIGNATED FOR PUBLICATION

No. 114,655

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

KYLER WAYNE CARRIKER,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed May 12, 2017.
Affirmed.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, Derek Schmidt,
attorney general, for appellant.

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

Before ATCHESON, P.J., STANDRIDGE and SCHROEDER, JJ.

Per Curiam: This is an appeal taken by the State from the district court's decision
to grant Kyler Wayne Carriker's request for a dispositional departure from a presumptive
prison sentence. The criminal charges against Carriker stemmed from his involvement in
a drug deal that resulted in the death of Ronald Betts. After an 8-day jury trial, Carriker
was convicted of attempted distribution of marijuana and acquitted of felony murder.
Before sentencing, Carriker filed a motion for dispositional and/or durational departure.
The district court granted the motion, and the State appeals. For the reasons stated below,
we affirm.
2
FACTS

On April 18, 2013, Lorenzo Spires picked up his friends Dennis Haynes and John
Carter for the purpose of meeting up with Carriker to buy drugs. Haynes had a gun with
him. Carriker had arranged for the drug sale to take place at the home of Kyle Beltz and
instructed Spires to park at a smoke shop near Beltz' house. When Spires arrived,
Carriker approached the vehicle and told Spires, Haynes, and Carter to come inside the
house. Spires declined, telling Carriker that he did not want to come inside because he
had been robbed before. Carriker went back inside, then returned with his friend Ronald
Betts. Betts asked the men to come inside and assured them that nothing would happen.
Carriker, meanwhile, informed Spires that he and his associates were armed, and said that
Spires and his friends could bring guns inside if they feared that something was going to
happen. After a brief conversation, Spires, Haynes, and Carter agreed to enter the house.

Upon entering Beltz' house, Spires saw marijuana on a table in the family room.
Betts went to the kitchen to get a scale at Haynes' request, and Carriker and Spires began
discussing a possible gun sale. Carriker pulled out his gun, removed the magazine,
handed the weapon to Spires, and asked Spires how much he would be willing to pay for
the gun. While Spires was handling and looking at Carriker's unloaded gun, Haynes
suddenly shot Carriker, setting off an exchange of gunfire inside the home. Betts was
struck by multiple gunshots during the incident and died from his injuries. During an
investigation of the incident, police discovered that three guns had been fired during the
shootout, including a shotgun belonging to Beltz. One of Betts' fatal wounds came from
the shotgun.

Carriker ultimately was charged with first-degree felony murder, as well as
attempted distribution of a controlled substance; the latter offense serving as the
inherently dangerous felony underlying the murder charge. The jury convicted Carriker
of the drug offense but ultimately found him not guilty of murder.
3
The presentence investigation report scored Carriker's criminal history as D based
on three person misdemeanors that were converted into a person felony for purposes of
sentencing. Combined with the assigned severity level of his attempted distribution of a
controlled substance conviction, the sentencing guidelines placed Carriker into a
presumptive prison gridbox.

The week before sentencing, Carriker filed a motion for dispositional and/or
durational departure. In support of his motion, Carriker attached approximately 100
letters from family, friends, and other individuals. The State filed a response in
opposition to the motion, arguing there were no substantial and compelling reasons for a
departure. As part of its response, the State noted that, contrary to one of the arguments in
the defense motion, Carriker's own text messages demonstrated that he had a drug
dealing business for months before the crime of conviction. The State advised that it
planned to offer the text messages at sentencing. The day before the hearing, the State
delivered to the district court (but did not file) 420 pages of text messages to the court.

The sentencing hearing was held on September 25, 2015. After hearing arguments
from counsel and allowing Carriker to speak on his own behalf, the district court granted
Carriker's motion for dispositional departure and imposed a sentence of probation for 36
months with an underlying sentence of 62 months in prison. The State appeals the
departure sentence.

ANALYSIS

The State argues the reasons given by the district court for departing from the
presumptive sentence in this case were either not supported by substantial competent
evidence and, even if they were, did not constitute substantial and compelling reasons to
depart. Additionally, the State argues that the court should have considered all of the text
messages the State provided, rather than only those admitted at trial.
4
Preservation

Before addressing the State's arguments, we first must address Carriker's claim
that we should dismiss this appeal because the State failed to object to inadequate
findings of fact and conclusions of law at the sentencing hearing or in a later motion.
Under Supreme Court Rule 165 (2017 Kan. S. Ct. R. 214), the district court must state its
findings of fact and conclusions of law when deciding matters not submitted to a jury. A
party must object to inadequate findings of fact and conclusions of law to preserve the
issue for appeal. This gives the district court the opportunity to correct the inadequate
findings. Fischer v. State, 296 Kan. 808, 825, 295 P.3d 560 (2013).

But the State's argument on appeal is not that the district court made inadequate
findings of fact and conclusions of law. Rather, the State's claim is that the court's
decision to grant a downward departure was "not supported by substantial competent
evidence or, alternatively, did not constitute substantial and compelling bases to depart."
Supreme Court Rule 165 does not apply under these circumstances and thus does not
preclude us from addressing the State's appeal.

Dispositional departure

A sentencing court is required to impose the presumptive sentence set forth in the
sentencing guidelines grid unless the court finds substantial and compelling reasons to
impose a departure sentence. K.S.A. 2016 Supp. 21-6815(a). If the sentencing court
determines that a departure is warranted, it must "state on the record at the time of
sentencing the substantial and compelling reasons for the departure" and make findings
of fact as to those reasons. K.S.A. 2016 Supp. 21-6815(a); K.S.A. 2016 Supp. 21-
6817(a)(4).

5
K.S.A. 2016 Supp. 21-6815(c)(1) contains a nonexclusive list of departure factors
for the sentencing court to consider when determining whether substantial and
compelling reasons exist for a departure sentence. But a sentencing court also may
consider nonstatutory factors "'as long as there is evidence in the record to support such
factors and the use of the factors would be consistent with the intent and purposes of the
sentencing guidelines.' [Citations omitted.]" State v. Hines, 296 Kan. 608, 616, 294 P.3d
270 (2013). Legislative purposes of the guidelines are to reduce prison overcrowding,
protect public safety, and standardize sentences. State v. Favela, 259 Kan. 215, 233-34,
911 P.2d 792 (1996).

The district court articulated the following reasons on the record for imposing a
departure sentence in this case: Carriker did not engage in any unlawful conduct during
the 29 months in which the case against him was pending, he completed drug and alcohol
treatment and attended Alcoholic Anonymous (AA) meetings during that time period, he
had no prior felonies in his criminal history, and there were existing programs in the
community to promote his rehabilitation. Although the State asserts the district court also
based its decision to depart on the fact that it had granted a downward departure in two
previous, similar cases, our review of the sentencing transcript leads us to conclude that
the court shared this information before setting forth its reasons for departure and did so
in order to reiterate that Carriker was being sentenced for the crime of conviction,
attempted distribution of marijuana, as opposed to the crimes charged:

"[THE COURT]: What I have had difficulty separating out, what I think a lot of
people in this case have had difficulty separating out is that Mr. Carriker was only
convicted of attempted distribution of marijuana. While it's still a severe and serious
felony, it's not the first degree murder, the felony murder that he was acquitted of. The
other folks that have been sent to prison or are pending going to prison were convicted or
pled to some charge relating to the killing. That's a difference in my mind. A substantial
difference.
6
"Trying to keep it business like and not personal again, as my wife suggested,
I've recently had cases come in front of me. I won't mention the name, but here's a 14 CR
case where the defendant pled on August 3rd, 2015. There was a joint recommendation
for dispositional departure to probation on the charge of possession of marijuana with the
intent to distribute. It had a total . . . of a little over 50 grams of marijuana.
"I can't find it at the moment, but there was another case similarly pled in front of
me, I took the plea. It also [was] presumptive prison for sale or attempted sale of
marijuana, distribution of marijuana. Joint downward dispositional departure to
probation."

It is only after these comments that the district court informed the parties of its decision
to grant the motion to impose a dispositional departure sentence and then provided the
reasons justifying the departure. Based on our finding that it was not relied on, we will
not review the district court's sentencing practices in other cases as a factor to justify the
court's departure in this case.

Substantial competent evidence

The State's first challenge to the district court's departure sentence is that some of
the reasons given by the court for departing from the presumptive sentence were not
supported in the record. When the issue presented is whether the record supports the
reason stated by the court for departing from a presumptive sentence, we review for
substantial competent evidence. State v. Spencer, 291 Kan. 796, 807, 248 P.3d 256
(2011).

Drug and alcohol treatment/AA meetings

In support of his request for dispositional and/or durational departure, Carriker's
motion advised the district court that he had taken and completed drug and alcohol
classes while the case was pending and had been going to weekly AA meetings as well.
Citing State v. Crawford, 21 Kan. App. 2d 859, 861, 908 P.2d 638 (1995), Carriker
7
argued that "efforts at rehabilitation and treatment" such as these are substantial and
compelling reasons to impose a downward departure sentence. At the sentencing hearing,
counsel reiterated this argument to the court: "As I stated on page three of my motion,
since this case has began [sic], Mr. Carriker has taken and completed drug and alcohol
classes. He's been going to weekly [AA] meetings." The court ultimately cited Carriker's
efforts at rehabilitation and treatment—the completed drug and alcohol treatment and the
weekly AA meetings—as a substantial and compelling factor in deciding to impose a
downward dispositional departure.

But the State argues the record does not support the district court's finding because
there is no documentation in the record to establish that Carriker completed a drug and
alcohol treatment program or is regularly attending AA meetings. In the absence of such
documentation, the State claims this factor is not supported by substantial competence
evidence.

We are not persuaded by the State's argument. In determining whether substantial
and compelling reasons exist for a departure sentence, K.S.A. 2016 Supp. 21-6815(d)
requires the court to consider "(1) Any evidence received during the proceeding; (2) the
presentence report; (3) written briefs and oral arguments of either the state or counsel for
the defendant; and (4) any other evidence relevant to such aggravating or mitigating
circumstances that the court finds trustworthy and reliable." In applying this subsection of
the statute, our Supreme Court has held that a sentencing court is entitled to rely on
statements provided by counsel without requiring counsel to provide corroborating
documentation if the court has determined the statements are credible. Favela, 259 Kan.
at 228-29. In Favela, trial counsel stated the defendant was impaired when committing
the offense. The sentencing court determined that trial counsel's statement was credible
and thus relied on it to grant a downward departure. 259 Kan. at 229. Our Supreme Court
affirmed. Similarly, in State v. Bernal, No. 105,536, 2012 WL 3135712, at *5-6 (Kan.
App. 2012) (unpublished opinion), the sentencing judge was permitted to rely on trial
8
counsel's statements regarding the nature of the defendant's prior convictions. "Once the
trial judge determines the credibility of the defense counsel's statements and decides to
rely upon the statements, a reviewing court should not reweigh the credibility of the
counsel's statements." Favela, 259 Kan. at 229.

As stated above, counsel submitted to the district court both in her motion for
dispositional and/or durational departure and in person at the sentencing hearing that
Carriker had taken and completed drug and alcohol classes while the case was pending
and had been going to weekly AA meetings. The district court found counsel's statements
credible, as is shown by the fact that these facts were adopted as part of the basis for
departure. The court was entitled to rely on those statements after determining they were
credible, and we are not permitted to reweigh the credibility of trial counsel's statements
on appeal. Favela, 259 Kan. at 228-29. For these reasons, we find substantial competent
evidence supports the district court's finding that Carriker completed drug and alcohol
counseling and was regularly attending AA meetings during the period of time his case
was pending.

No prior felony conviction

In granting Carriker's downward departure motion, the district court relied in part
on Carriker's lack of any prior felony convictions. But the State argues the record does
not support the court's finding. Specifically, the State claims that three of Carriker's
misdemeanors were converted to a felony for purposes of calculating his criminal history
score and the classification of the crime after it has been converted should be the one
used when deciding whether to depart.

Interpretation of a statute is a question of law over which appellate courts have
unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). When a
statute is plain and unambiguous, an appellate court should not speculate about the
9
legislative intent behind that clear language, and it should refrain from reading something
into the statute that is not readily found in its words. State v. Barlow, 303 Kan. 804, 813,
368 P.3d 331 (2016). Generally, "'appellate courts cannot delete vital provisions or add
vital omissions to a statute if the legislature failed to enact the change as intended under
any reasonable interpretation of the language used, regardless of the legislature's
intention. Only the legislature may remedy these types of error.' [Citation omitted.]"
Eastman v. Coffeyville Resources Refining & Marketing, 295 Kan. 470, 476, 284 P.3d
1049 (2012); see also Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 725, 317
P.3d 70 (2014); State v. Ardry, 295 Kan. 733, 737, 286 P.3d 207 (2012).

K.S.A. 2016 Supp. 21-6811(a) states that "[e]very three prior adult convictions or
juvenile adjudications of class A and class B person misdemeanors in the offender's
criminal history, or any combination thereof, shall be rated as one adult conviction or one
juvenile adjudication of a person felony for criminal history purposes." The key word
here is "rated." To rate an item is to give it a proportional or relative value. See Black's
Law Dictionary 1452 (10th ed. 2014). By using this term, it is reasonable to conclude that
the legislature intended the court to give three misdemeanor offenses the proportional
value of one person felony adjudication for the purpose of calculating an offender's
criminal history score. But there is nothing in the statute to suggest that doing so changes
the underlying nature of the original offenses as misdemeanors. See State v. Smith, 49
Kan. App. 2d 88, 91, 304 P.3d 359 (2013) (holding that defendant's six prior
misdemeanor juvenile adjudications had decayed and could not be used against him
despite having been rated as felonies in a previous case). Because the nature of the prior
misdemeanor offenses never changed, we find substantial competent evidence supports
the district court's finding that Carriker had no prior felony convictions.




10
Existing programs in the community

One of the factors relied on by the district court in departing from the presumptive
prison sentence here was the existence of programs in the community to promote
Carriker's rehabilitation. The State argues that substantial and competent evidence does
not support the court's finding that this factor existed. We disagree.

As a preliminary matter, we note the district court ordered Carriker's release on
probation was subject to the supervision of community corrections rather than court
services. "'[P]robation'" is defined by statute as "a procedure under which a defendant,
convicted of a crime, is released by the court after imposition of sentence, without
imprisonment except as provided in felony cases, subject to conditions imposed by the
court and subject to the supervision of the probation service of the court or community
corrections." K.S.A. 2016 Supp. 21-6603(g). A "'community correctional services
program'" is defined as "a program which operates under the community corrections act
and to which a defendant is assigned for supervision, confinement, detention, care or
treatment, subject to conditions imposed by the court." K.S.A. 2016 Supp. 21-6603(b).
Relevant here, K.S.A. 2016 Supp. 75-5291 of the community corrections act describes
the highly intensive supervision, the broad level of support, and the wide range of
services available to felony offenders who are assigned to a community correctional
services program for supervision during probation:

"(a)(1) The secretary of corrections may make grants to counties for the
development, implementation, operation and improvement of community correctional
services that address the criminogenic needs of felony offenders including, but not
limited to, adult intensive supervision, substance abuse and mental health services,
employment and residential services, and facilities for the detention or confinement, care
or treatment of offenders as provided in this section . . . .
(2) Except as otherwise provided, placement of offenders in a community
correctional services program by the court shall be limited to placement of adult
offenders, convicted of a felony offense:
11
. . . .
(B) whose severity level and criminal history score designate a presumptive
prison sentence on either sentencing guidelines grid but receive a nonprison sentence as a
result of departure." K.S.A. 2016 Supp. 75-5291.

In addition to intensive supervision by community corrections, the district court
ordered Carriker to enroll in and attend an anger management program with a focus on
impulse control. The court also ordered Carriker to submit to a drug and alcohol
evaluation within 30 days of being released from the 60-day jail sentence imposed in
conjunction with the sentence of probation and to follow all recommendations made by
the evaluator.

Based on our review of the record, we find the following to be substantial and
competent evidence in the record to support the district court's finding that there are
programs in the community that will promote Carriker's rehabilitation: (1) the anger
management program; (2) the drug and alcohol evaluation with orders to follow up on all
recommendations by the evaluator; and (3) the community corrections program providing
intensive supervision, support, and community services to Carriker during the period of
his probation.

Substantial and compelling reasons to depart

Having determined there is substantial competent evidence in the record to support
the district court's findings challenged by the State, we turn to the State's claim that the
reasons given by the court for imposing a departure sentence were not substantial and
compelling under the facts of this case. "'To be substantial the reason must be real, not
imagined, and of substance, not ephemeral.' [Citation omitted.] A reason is 'compelling'
when it 'forces the court, by the facts of the case, to abandon the status quo and to venture
beyond the sentence that it would ordinarily impose.' [Citation omitted.]" State v. Bird,
298 Kan. 393, 397, 312 P.3d 1265 (2013).
12
Because the issue presented is whether the reasons stated by the district court to
justify departure in this particular case constitute substantial and compelling reasons for
departure, we apply an abuse of discretion standard. Spencer, 291 Kan. at 807. A judicial
action constitutes an abuse of discretion if it is based on an error of law or fact, or no
reasonable person would take the view adopted by the district court. State v. Marshall,
303 Kan. 438, 445, 362 P.3d 587 (2015). The party asserting the district court abused its
discretion bears the burden of showing such abuse of discretion. State v. Robinson, 303
Kan. 11, 90, 363 P.3d 875 (2015), cert. denied 137 S. Ct. 164 (2016), disapproved on
other grounds by State v. Cheever, 304 Kan. 866, 375 P.3d 979 (2016).

On appellate review, we do not give greater deference to a sentencing court
because it relied on statutory factors rather than nonstatutory factors for its decision to
impose a departure sentence. State v. Martin, 285 Kan. 735, 747, 175 P.3d 832 (2008).
Regardless of whether the district court cites statutory factors, nonstatutory factors, or a
combination of both, "'[r]easons which may in one case justify departure may not in all
cases justify a departure.'" Bird, 298 Kan. at 397. "When even one factor relied upon by
the sentencing court is substantial and compelling, the departure sentence should be
upheld. Conversely, each individual factor, standing alone, need not be sufficient to
justify the departure if the reasons collectively constitute a substantial and compelling
basis for departure. [Citation omitted.]" 298 Kan. at 398.

Again, the district court articulated the following reasons on the record for
imposing a departure sentence in this case: Carriker had not engaged in any unlawful
conduct during the 29 months in which the case against him was pending, he completed
drug and alcohol treatment and attended AA meetings during that time period, he had no
prior felonies in his criminal history, and there were existing programs in the community
to promote his rehabilitation.


13
Amenability to probation

The district court determined Carriker was amenable to probation based on
evidence presented that during the past 29 months he had complied with all laws
generally as well as the specific bond conditions of his pretrial release. The State argues
this factor does not rise to the level of a substantial or compelling reason for departure
because Carriker was under close supervision during the entire 29 months and would
have gone to jail for violating the terms of his bond if he had engaged in any unlawful
conduct.

While a showing of amenability to probation is not a departure factor expressly
stated in the statute, a sentencing court may properly consider this factor as a legitimate
reason to impose a dispositional departure sentence. Typically, a lack of amenability to
probation is shown by the defendant's conduct and attitude when given prior
opportunities at probation or other forms of supervised release. See State v. Rodriguez,
269 Kan. 633, 647, 8 P.3d 712 (2000). But here, the opposite is true. During the 29-
month time period in which this case was pending, Carriker demonstrated that he was
able to follow court orders, successfully enroll in and complete a drug and alcohol
treatment program, participate in community support groups geared toward sustaining
rehabilitation, and engage in activities that were not harmful to the community. These
behaviors showed Carriker was amenable to probation and could abide by the district
court's terms and conditions of release; thus, the court properly relied on them to impose
a dispositional departure.

Notably, the State cites no caselaw or other authority to support its argument that a
defendant's compliance with the law pending trial must be motivated by something other
than bond release conditions in order to qualify as a substantial or compelling reason to
impose a departure sentence. Accordingly, we find the district court did not abuse its
discretion in finding Carriker's compliance with the law and the terms and conditions of
14
his pretrial release for the 29 months that elapsed between the date he was charged and
the date he was sentenced qualified as a substantial or compelling reason to impose a
departure sentence.

Rehabilitation efforts while case pending

The State contends Carriker's completion of drug and alcohol treatment and
attendance at AA meetings were not "overly ambitious" and thus is not a substantial or
compelling reason for departure. As the State points out, there is no information in the
record regarding the details of the drug and alcohol program Carriker completed.
Nevertheless, rehabilitation efforts are a legitimate factor to consider for purposes of a
downward departure. Although this factor may not be enough on its own to constitute a
substantial and compelling reason for the district court to have departed in this case, we
find the court did not abuse its discretion in using it as a contributing factor that supports
the downward dispositional departure ultimately imposed. See State v. Crawford, 21 Kan.
App. 2d 859, 861, 908 P.2d 638 (1995) (approving downward dispositional departure
sentence because defendant was maturing and less likely to commit crimes, was raising
three children, had "'impressive'" employment record, and had made "'substantial efforts'"
at rehabilitation).

No prior felony conviction

Next, the State argues the lack of a prior felony conviction in Carriker's criminal
history does not rise to the level of a substantial and compelling reason for the district
court to depart from the presumptive sentence in this case. In support of this argument,
the State contends criminal history can never be used to justify departure and even if it
could, Carriker's criminal history shows he is a danger to society.

15
The State is correct that criminal history generally cannot be used to justify a
departure sentence because the presumptive sentence already takes a defendant's criminal
history into account. But the sentencing court can consider factors not taken into account
in the presumptive sentence, such as what the criminal history scheme says about the
defendant's amenability to probation, need for treatment, or future dangerousness. State v.
Hawes, 22 Kan. App. 2d 837, 840, 923 P.2d 1064 (1996); State v. Fisher, No. 105,626,
2011 WL 6385648, at *2 (Kan. App. 2011) (unpublished opinion) (defendant's extensive
criminal history showed nonamenability to probation, upward departure imposed).

Here, the district court was aware of Carriker's criminal history. The judge
appeared to consider the lack of a felony conviction in Carriker's criminal history to
support a conclusion that Carriker was amenable to probation because the judge listed it
alongside the fact that Carriker complied with the law and conditions of pretrial release
pending trial, completed drug and alcohol classes, and regularly attended AA meetings.
And there is nothing in the record to indicate that Carriker previously failed at probation
attempts or that his criminal history was related to drugs. See Fisher, 2011 WL 6385648,
at *2. Based on the record, we find the district court properly considered the lack of a
prior felony conviction in Carriker's criminal history for purposes of determining his
amenability to probation. See Hawes, 22 Kan. App. 2d at 840. In turn, we find the court
did not abuse its discretion in finding the lack of a prior felony conviction in Carriker's
criminal history was a substantial and compelling reason to impose a downward
dispositional departure.

Existing programs in the community

Finally, the State argues the fact that an anger management program exists in the
community will not promote Carriker's rehabilitation—and thus cannot be a substantial
and compelling reason to depart in this particular case—because the program is unrelated
to his crime of conviction, which was organizing a drug deal to make money.
16
Although the State focuses solely on the district court's order for Carriker to enroll
in and successfully complete an anger management program, we find it significant that
the court directed that the program Carriker enrolls in must specifically address the issue
of impulse control. Carriker's crime of conviction was attempted sale of marijuana. "Low
self-control has been associated with problematic drinking and substance use, property
crime, dating violence (both psychological and physical), and other types of violent
crime, as well as offender noncompliance. [Citation omitted.]" Samantha S. Clinkinbeard,
What Lies Ahead: An Exploration of Future Orientation, Self-Control, and Delinquency,
39(1) Crim. Just. Rev. 19, 21 (2014). It is reasonable to conclude that a program focusing
on impulse control practices and techniques would promote Carriker's rehabilitation.

But we also find it significant that the district court ordered Carriker's release on
probation to be subject to the intensive supervision of community corrections rather than
court services. As an offender assigned to a community correctional services program for
supervision during probation, Carriker will be subject to highly intensive supervision and
provided a broad level of support and a wide range of services. K.S.A. 2016 Supp. 21-
6603(b); K.S.A. 2016 Supp. 75-5291. And the court also ordered Carriker to submit to a
drug and alcohol evaluation within 30 days of release from the 60-day jail sentence
imposed in conjunction with his probation and to follow all recommendations made by
the evaluator. The district court did not abuse its discretion in finding that the existence of
programs in the community that would promote Carriker's rehabilitation was a substantial
and compelling reason to impose a downward dispositional departure.

Cumulative factors

As previously stated, "each individual factor, standing alone, need not be
sufficient to justify the departure if the reasons collectively constitute a substantial and
compelling basis for departure." Bird, 298 Kan. at 398. A substantial reason is one that is
real, with substance, and not imagined, and compelling reason is one that persuades the
17
court to impose a sentence it ordinarily would not impose. State v. Blackmon, 285 Kan.
719, 724, 176 P.3d 160 (2008). If a sentencing court relies on nonstatutory factors, as the
court did here, the factors must be "consistent with the intent and purposes of the
sentencing guidelines" in order to constitute substantial and compelling reasons to justify
a departure. 285 Kan. at 725. The following are principles and purposes of the sentencing
guidelines:

"'• Prison space should be reserved for serious/violent offenders.
• The degree of sanctions imposed should be based on the harm inflicted.
• Sanction should be uniform and not related to socioeconomic factors, race, or
geographic location.
• Penalties should be clear so everyone can understand exactly what has occurred after
such are imposed.
• Incarceration should be reserved for serious violent offenders who present a threat to
public safety.
• The State has an obligation to rehabilitate those incarcerated; but persons should not
be sent to prison solely to gain education or job skills, as these programs should be
available in the local community.
• The system must be rational to allow policymakers to allocate resources. [Citations
omitted.]'" Favela, 259 Kan. at 233.

When considered together, the fact that Carriker had not engaged in any unlawful
conduct during the 29 months in which the case against him was pending, that he
completed drug and alcohol treatment and attended AA meetings during that time period,
that he had no prior felonies in his criminal history, and that there were existing programs
in the community to promote his rehabilitation are substantive real reasons that persuaded
the district court in this case to impose a sentence it ordinarily would not impose; thus,
the stated reasons are both substantial and compelling. Our standard of review is abuse of
discretion. We cannot say that no reasonable person would have taken the district court's
view, or that the decision was based on an error of law or fact. For this reason, we find
18
the court did not abuse its discretion and affirm the decision to impose a downward
dispositional departure sentence.

Text messages

The day before sentencing, the State delivered to the district court (but did not file)
420 pages of text messages. At the hearing the next day, the State said it intended to use
the messages to refute numerous letters written by Carriker's friends and family alleging
that the drug deal was a one-time incident. The court advised the State that, because of
the narrow timeframe, it had not been able to read the text messages and therefore would
consider only those text messages that were admitted at trial. Undeterred, the State
requested leave to at least reference the text messages as part of its argument opposing
departure and to make a record for purposes of an appeal by filing the text messages
under seal to protect the identities and telephone numbers of individuals not related to the
case.

At this point, Carriker objected to introduction of the text messages into evidence
altogether, arguing they were untimely submitted and not relevant to the sentencing
issues before the district court. After the State responded to Carriker's objection, the court
and the State engaged in the following colloquy:

"THE COURT: That's it. I'll allow you to admit them for the record. I have not
had a chance to review them. I'm going to confine myself to those texts and e-mails that
were sent and used during trial.
"[THE PROSECUTOR]: Can I argue them, though, in response to her motion to
depart?
"THE COURT: Can you what?
"[THE PROSECUTOR]: Can I argue them in response to her motion to depart?
"THE COURT: Can you argue these things?
"[THE PROSECUTOR]: Yes.
"THE COURT: That I'm not going to consider? No.
19
"[THE PROSECUTOR]: Well, Judge, then I'm asking you not to consider their
letters because their letters are saying he's not a drug dealer. And so can't rebut that, then
the Court is put in a position that you're going to consider something and not get the full
truth of what actually occurred in Mr. Carriker's life.
"THE COURT: You can admit the exhibits for the appellate purposes. I'm going
to confine remarks, arguments to what was admitted at trial."

On appeal, the State asserts the district court erred by failing to consider the
approximately 420 text messages the State provided to the court the day before the
hearing. In support of error, the State asserts the district court refused to consider the text
messages "ostensibly because the court did not have time to review the text messages."
As a preliminary matter, we disagree with the State's characterization of the reason why
the court decided not to consider the text messages. But even if that were the reason why
the court did not consider them and it was error to do so, we find any error in that
decision to be invited by the State given its failure to request a continuance of the
sentencing hearing to allow the court the time it needed to review the evidence at issue.

Even if the error had not been invited, the State still does not prevail. Based on our
review of the record, it appears the district court opted not to consider the 420 text
messages for purposes of deciding the departure issue because the messages simply were
not relevant to any valid reason for deciding whether to impose a departure sentence. But
even if we again presume for purposes of discussion that the court erred in failing to
consider the 420 text messages, the erroneous exclusion of evidence is subject to review
for harmless error under K.S.A. 2016 Supp. 60-261:

"Unless justice requires otherwise, no error in admitting or excluding evidence,
or any other error by the court or a party, is ground for granting a new trial, for setting
aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order. At
every stage of the proceeding, the court must disregard all errors and defects that do not
affect any party's substantial rights."
20
Here, the text messages were offered to refute letters written by Carriker's family
and friends asserting that the drug deal giving rise to this case was a "one time deal." The
district court gave "those letters very little, if any, credibility." And significantly,
Carriker's participation in other drug sales prior to the one at issue in this case was not a
factor the district court relied on in considering the motion to depart. Thus, the court's
failure to consider text messages that may have demonstrated the drug sale at issue was
not an isolated incident, even if error, was harmless.

Affirmed.

* * *

ATCHESON, J., dissenting: Defendant Kyler Wayne Carriker orchestrated a
marijuana sale in which he and his cohorts came bearing both guns and drugs. And he
invited the buyers to bring their firearms after he sensed they were uneasy about the
arrangements. During the deal, something sparked a gunfight that left one of Carriker's
partners dead, while the putative buyers took off with the marijuana and the money. A
jury convicted Carriker of attempted distribution of marijuana but acquitted him of felony
murder for the shooting death. At sentencing, the district court granted Carriker a
dispositional departure from presumptive imprisonment to probation. The State has
appealed that deviation, so the district court's reasons for disregarding the standard
statutory sentence form the nub of this appeal. A studied review of the sentencing hearing
shows the district court relied on both factually erroneous and legally unjustified reasons
for its determination, while disregarding salient circumstances of Carriker's conduct. The
majority fails to capture the scope of the district court's mistakes or appreciate the
significance of them. I, therefore, respectfully dissent from the decision affirming
Carriker's sentence. I would vacate the sentence and remand for a new sentencing hearing
that fully and fairly follows the law and reflects the facts.

21
Factual Background and Legal Principles Governing Departure Sentences

A district court must impose a presumptive guidelines sentence "unless [it] finds
substantial and compelling reasons" for a departure. K.S.A. 2016 Supp. 21-6815(a). The
district court has to articulate the reasons warranting a departure at the sentencing
hearing. K.S.A. 2016 Supp. 21-6815(a). A downward departure may be durational,
shortening a presumptive term of imprisonment; dispositional, replacing presumptive
incarceration with probation; or both.

Based on Carriker's criminal history, the marijuana conviction presumptively
required he be sent to prison. Carriker's lawyer filed a motion for a departure to probation
and, in the alternative, for a reduced term of imprisonment. The State filed a response and
sought a presumptive guidelines sentence. The district court heard argument on the
motion at the sentencing and then outlined the reasons for granting Carriker probation as
part of its pronouncement of the sentence from the bench. The district court sentenced
Carriker to 62 months in prison and placed him on probation for 36 months subject to his
serving 60 days in the county jail and complying with other conditions. The State has
appealed the departure to probation. See K.S.A. 2016 Supp. 21-6820(a). Carriker had
filed no cross-appeal.[1]

[1]The district court characterized the 62-month sentence as being the aggravated
or highest presumptive term of imprisonment for a defendant convicted of a severity level
3 drug offense with a criminal history in category D. The presentence investigation report
identified the presumptive sentencing range as 54 to 62 months. I can't tell where those
numbers come from. The crime occurred on April 18, 2013, so the sentencing statutes
and grid in effect then should govern. State v. Overton, 279 Kan. 547, Syl. ¶ 5, 112 P.3d
244 (2005). The presumptive sentence would have been 60 to 68 months. See K.S.A.
2012 Supp. 21-6805(a) (drug grid in effect as of July 1, 2012). The range in the PSI
resembles (but does not match) that for a defendant in criminal history category E. The
presumptive sentence applicable to Carriker, whatever its duration, clearly calls for
imprisonment rather than probation.

22
The legislature has adopted a nonexclusive list of mitigating factors that may be
considered in granting a downward departure. K.S.A. 2016 Supp. 21-6815(c)(1). But the
district court may weigh other "substantial and compelling" circumstances favoring
mitigation. To be "substantial," the circumstance must be "real" rather than "imagined" or
"ephemeral." And to be "compelling," it must—based on the facts of the case—"force[]
the court . . . to abandon the status quo" and impose a sentence it would not ordinarily
consider. State v. Hines, 296 Kan. 608, 616, 294 P.3d 270 (2013). Whether a
circumstance could warrant a departure sentence in some case, though not necessarily in
the case at hand, presents a question of law. 296 Kan. at 616. A district court's decision to
rely on a legally appropriate circumstance in a given case entails judicial discretion and
may be reviewed for abuse. State v. Reed, 302 Kan. 227, 249, 352 P.3d 530 (2015). A
district court exceeds that discretion if it rules in a way no reasonable judicial officer
would under the circumstances, if it ignores controlling facts or relies on unproven
factual representations, or if it acts outside the legal framework appropriate to the issue.
See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296
P.3d 1106, cert. denied 134 S. Ct. 162 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256
P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012).

Errors in District Court's Decision to Grant Dispositional Departure

With those legal principles in mind, I review the grounds I understand the district
court to have relied on in granting Carriker a downward departure to probation. I draw
those reasons from the transcript of the sentencing hearing, since the district court did not
prepare a written ruling encapsulating its findings. And I explain why they do not support
the departure to probation.

•The district court determined that a departure to probation would be warranted
because Carriker had no felony convictions. Given the way presumptive sentences are
calculated in Kansas, the absence of past felonies cannot be a substantial and compelling
23
reason supporting a departure from imprisonment to probation. That's because a
presumptive sentence is directly tied to a defendant's criminal history, thereby taking
account of past felonies or the absence of any felonies.

The legislature has adopted two sentencing grids that establish presumptive terms
of incarceration and whether a defendant presumptively should be imprisoned or placed
on probation. One grid applies to most nondrug felonies, and the other applies to felony
drug crimes, such as Carriker's marijuana conviction here. Both grids work the same way.
The grid has a vertical axis listing severity levels of felony offenses and a horizontal axis
listing criminal history categories based on past convictions, including felonies and
certain misdemeanors. A given defendant's presumptive sentence is found in a box on the
grid at the intersection of the severity level of the defendant's crime of conviction and his
or her criminal history category. The box contains three numbers reflecting the low,
midlevel, and high presumptive periods of incarceration expressed in months. Each box
on the grid is also designated a presumptive prison box, a presumptive probation box, or
a border box.[2]

[2] A presumptive probation box requires the defendant be placed on probation
unless the district court imposes an upward dispositional departure to imprisonment. A
border box permits the district court to place a defendant on probation without making
formal departure findings if there are appropriate treatment programs in the community
and the particular defendant is amenable to treatment without jeopardizing community
safety.

If the combination of the crime of conviction's severity and the defendant's
criminal history places him or her in a presumptive prison box, then the district court
must order the defendant be incarcerated unless it grants a downward dispositional
departure. So a particular defendant's criminal history, including the presence or absence
of past felonies, drives both the presumptive sentence he or she should receive and
whether he or she should be sent to prison. The result reflects a public policy
determination by the Kansas Legislature as to an appropriate punishment based on its
24
exercise of police powers. See State v. Bolin, 200 Kan. 369, 370-71, 436 P.2d 978 (1968)
(legislature validly exercises police power in defining particular acts as criminal);
Meehan v. Kansas Dept. of Revenue, 25 Kan. App. 2d 183, 190, 959 P.2d 940 (1998)
(legislature acts within police powers to criminalize and set punishment for driving under
the influence).

Here, Carriker's three previous convictions for person misdemeanors placed him in
a presumptive prison box for the marijuana conviction. Those convictions were treated as
the equivalent of one person felony for criminal history purposes. If Carriker also had a
previous felony conviction, he would have been in another presumptive prison box
mandating a longer term of incarceration. The sentencing grid, therefore, reflected the
legislature's determination that a person with Carriker's criminal history—a history
without a felony—convicted of attempted distribution of marijuana should go to prison.
That presumptive disposition already took account of Carriker's criminal history, so his
criminal history couldn't be a reason to depart upward or downward. If the district court's
approach were allowed, criminal history would cease to be a substantive component in
fixing sentences. A district court would be able to grant a dispositional departure to a
defendant with one past felony conviction simply because he or she didn't have two. The
notion upsets a cornerstone of the sentencing guidelines—that similarly situated
defendants should receive substantially similar punishments for the same crimes. State v.
Huerta, 291 Kan. 831, 836, 247 P.3d 1043 (2011).

The district court erred either as a matter of law or by stepping outside the
appropriate legal framework of the sentencing guidelines in departing downward based
on the absence of a felony in Carriker's criminal history.

•The district court found that Carriker qualified for the statutory mitigating factor
based on the "harm or loss" associated with the crime being "less than typical." K.S.A.
2016 Supp. 21-6815(c)(1)(E). The district court reasoned that Carriker and his associates
25
gained nothing from the drug deal—the putative buyers kept their money and absconded
with the marijuana during the gunfight—thereby rendering any harm or loss atypically
low for a drug trafficking offense. The majority doesn't mention this finding. The district
court's conclusion can be fairly described as astonishing. And the reasoning behind it
illustrates what seems to be a broader problem with the district court's overall approach to
sentencing in this case.

I find it unfathomable that the harm resulting from a drug deal that collapses into a
gun battle leaving one of the participants dead could somehow be characterized as
unusually benign, thereby justifying a relaxed punishment for a surviving principal. We
may fairly assume that buyers and sellers in comparatively large drug deals frequently
arrive armed and ready to forcefully protect their respective interests. And we may fairly
assume that at least some of the time one side or the other sets up a deal as a pretext for
an armed robbery. So gun violence and the resulting mayhem may be a predictable,
though not necessarily commonplace, cost of trading in illegal drugs. None of that,
however, warrants a lesser punishment in this case or in some other drug case in which
the defendant wound up the victim of a rip-off or someone was shot or killed.

During the hearing, the district court indicated it did not believe it could consider
the shooting and the resulting homicide as a circumstance bearing on the sentence for
attempted distribution of marijuana because Carriker had been acquitted of the felony
murder charge. But the district court came to an incorrect legal conclusion. The district
court could not, of course, sentence Carriker for felony murder. But the district court
could have and should have considered the facts surrounding the marijuana deal in fixing
punishment for that offense. The jury plainly found Carriker to have been present at and a
participant in the marijuana deal, and the acquittal doesn't negate the fact that another
participant was shot and killed during the deal. See State v. Hargrove, 48 Kan. App. 2d
522, 559-61, 293 P.3d 787 (2013) (Even if a jury acquits a defendant of one charge, the
court may consider evidence common to that charge and a second charge in determining
26
the sufficiency of the evidence supporting the jury's guilty verdict on the second charge.).
In turn, the district court can take account of all of the factual circumstances of the crime
of conviction in fashioning an appropriate sentence. State v. Williams, No. 114,525, 2017
WL 129896, at *5-6 (Kan. App. 2017) (unpublished opinion) (evidence common to crime
of conviction and charge on which defendant acquitted properly considered at
sentencing).

By the district court's logic, Carriker was no more or less blameworthy or
deserving of punishment than a person who offered a giftwrapped box containing an
ounce of marijuana to an acquaintance as a birthday present not knowing the recipient to
be working as an undercover government agent. Both Carriker and that defendant would
be guilty of severity level 3 drug offenses arising from marijuana distribution. The
hypothetical gift giver actually might be deserving of fair consideration for a mitigated
punishment based on K.S.A. 2016 Supp. 21-6815(c)(1)(E). To say the same about
Carriker requires an abandonment of logic and a blindness to reality. Courts should yield
to neither unless so compelled in the service of an inescapable legislative command
demanding illogic and sightlessness. This is not such a case. The district court erred as a
matter of law or by venturing outside the legal framework for sentencing in treating it as
if it were.

•The district court relied on sentences it imposed in two earlier cases involving
marijuana distribution in measuring Carriker's punishment. The transcript unmistakably
shows the district court took the circumstances of those cases into account in determining
how to punish Carriker. And the district court's comments strongly suggest it was
influenced to grant Carriker a downward dispositional departure so the sentences in the
three cases would roughly align. The district court erred, at the very least, in not notifying
the parties of its intent to rely on those cases.

27
The majority simply writes off the district court's remarks about the other cases as
some sort of idle musing without any significance—in a word, prattle. The transcript
doesn't support that dismission. And I would generally assume district courts approach
sentencings with sufficient deliberation and seriousness that their remarks have import
unless the context plainly shows otherwise. Here, the district court referred to the cases
immediately after going through and discussing the statutory mitigation factors in K.S.A.
2016 Supp. 21-6815(c) and shortly before pronouncing the formal sentence. The district
court mentioned a couple of facts from one of the cases, made a point of noting its
decision in each to grant a dispositional departure to probation, and alluded to those
determinations as a means of taking a "business like" and "professional" approach to
sentencing Carriker. Fairly read, the transcript demonstrates those cases formed an
integral part of the district court's sentencing determination in this case. I take the district
court's references to being business-like and professional as a product of its mistaken
belief that it could not consider the fatal shooting in fashioning a sentence for Carriker. I
rather readily infer the district court felt that limitation tested its sense of fairness.

As a general proposition, a court may not consider extrinsic information—
information outside the record in a case—in making decisions in that case. I believe the
district court's consideration of the two cases it had recently handled entails that sort of
extrinsic information, given the specific and pointed discussion of them at the sentencing
hearing. The problem, of course, is that neither the State nor Carriker received any
advance notice the district court had relied, in part, on those cases, so they could not
effectively argue why they were similar or dissimilar to the matter at hand.

Assuming a district court may consider extrinsic information at sentencing—an
assumption I indulge without endorsement and for forensic purposes only—it has an
obligation to inform the parties of that information sufficiently in advance of the hearing
that they can reasonably respond. See Vining v. State, 827 So. 2d 201, 209-10 (Fla. 2002)
(Any error in a judge's independent factual investigation was rendered harmless because
28
the judge made a timely disclosure of the information to the parties.); State v. Hart, 911
S.W.2d 371, 376-77 (Tenn. App. 1995) (discussing dangers of trial court conducting its
own factual investigation). In McClay v. Highway Commission, 185 Kan. 271, 272, 341
P.2d 995 (1959), the Kansas Supreme Court rebuked a trial judge for independently
speaking with an expert witness in a condemnation action after the verdict but before
ruling on posttrial motions. Describing the judge's action as "an independent
investigation" aimed at aiding his consideration of the case, the court said the conduct,
though disclosed on the record to the parties, "was irregular and cannot be sanctioned or
approved."

Here, the district court relied on its recollection of specific cases it had presided
over, an exercise that did not require a direct investigation of documents or other sources
of information outside the record in this case. But the district court's reliance on the
particular factual circumstances of those cases as a measuring stick in this case is
functionally indistinguishable and carries with it the same erosion of fair notice and due
process protections. The district court, therefore, erred in weighing the outcomes in those
cases in meting out a proper sentence to Carriker in this case.[3]

[3]What the district court did in this case should be contrasted with two quite
different aspects of judicial decisionmaking. First, a court may (and often should) engage
in independent legal research of published authorities beyond those the parties have cited.
A court thereby becomes better informed about the law governing pending issues. Here,
the district court effectively investigated not legal authority but extrinsic facts.

Second, district court judges obviously have recollections about cases over which
they have presided. But judges should put those recollections aside to focus on the facts
specific to the case they are then handling. Most judges presumably hold general views
about sentencing in criminal cases. Some may be inclined to impose a high presumptive
sentence in certain kinds of cases. Others may tend toward midrange presumptive
sentences. There is nothing amiss with judges developing general sensibilities about
issues they consider. Those sensibilities may be part and parcel of the wisdom that ideally
accompanies experience. But judges must also have the wisdom to keep those
sensibilities from turning into unyielding personal rules applied mechanically without
29
regard for or reflection upon the particular factual circumstances presented in the case
then at hand.

•The district court held that Carriker's ability to remain law-abiding during the 29
months he was on bond favored a dispositional departure to probation. This is a logically
and legally false construct akin to the ostensible basis rooted in Carriker's lack of a felony
conviction. We expect people to obey the law. Doing so reflects a societal norm—that
which is typical. When that norm becomes the measuring stick, the judicial process
should treat persons who fit within it typically. As I have already set out, the sentencing
grid establishes presumptive (or typical) punishments for crimes tied to the severity of the
offense and the defendant's criminal history. Those punishments reflect a legislative
policy determination that must guide judicial officers in their work.

In keeping with the legislative directive, a defendant typically should get no extra
dispensation for being law-abiding. The appropriate benefit already has been
incorporated into a sentencing formula that imposes enhanced penalties on recidivists and
presumptively requires they be imprisoned. Had Carriker been convicted of a new crime
during his time on bond, that offense would have increased his presumptive punishment
in this case. It doesn't follow, however, that he should be eligible for a more favorable
disposition than typical simply because he had done what is expected as typical during
that time.

Moreover, Carriker's "good behavior" on bond isn't especially compelling
evidence of reformation in and of itself. Had Carriker broken the law while on bond, the
district court likely would have revoked his conditional release and ordered him to jail for
the pendency of this case. Carriker's law-abiding behavior demonstrates not so much
meritorious conduct deserving of reward as the absence of incorrigibility. That's precisely
why a defendant's inability or unwillingness to conform to bond conditions can be
considered in denying probation. See State v. Rodriguez, 269 Kan. 633, 647-48, 8 P.3d
30
712 (2000); State v. Fleming, No. 110,090, 2014 WL 2590113, at *2-3 (Kan. App. 2014)
(unpublished opinion). Accordingly, the district court's reason fails to support the
resulting departure either as a matter of law or as falling outside the appropriate legal
framework.

•The district court considered Carriker's participation in drug and alcohol abuse
programs to be a factor in granting a departure. But the district court misunderstood what
Carriker did and likely gave him considerably more credit than he deserved. Carriker,
through his lawyer, represented that after being charged in this case, he "ha[d] taken and
completed drug and alcohol classes" and had begun attending weekly Alcoholics
Anonymous meetings. Carriker's lawyer made that representation both in the motion for a
dispositional departure and at the sentencing hearing. But the record is bereft of any other
information about those efforts.

The district court was not told when Carriker took the classes, how many sessions
were involved, the curriculum, or even the name of the sponsoring organization. Carriker
did not disclose whether the classes required in-person attendance or consisted of online
study. Likewise, Carriker did not inform the district court when he began attending AA
meetings. The district court mistakenly converted those sketchy assertions into a
representation that Carriker had successfully undergone treatment for drug and alcohol
abuse. Taking classes and undergoing treatment are not the same. The district court
essentially relied on something that had never been presented in the evidence or
argument. The district court erred in doing so.

Conclusion

The district court's decision to grant Carriker a dispositional departure to probation
is riddled with legal errors and factual mistakes. The combined effect of those missteps
renders the result reversible as an abuse of discretion. I see no reason to parse each
31
deficiency independently for reversible error. Some are substantially more significant
than others. Moreover, the district court's failure to appreciate that it should consider the
full factual tableau of the crime, including the fatal shooting of Carriker's associate, in
assessing an appropriate sentence wholly undercuts the result. That error presents a
foundational defect impermissibly constricting the district court's view of the relevant
facts and the governing law to the State's disadvantage.

I offer no opinion on whether Carriker ultimately deserves a dispositional
departure. The district court, however, did not appropriately arrive at that conclusion
given its impermissibly limited view of the law and the facts. I would vacate Carriker's
sentence and remand to the district court for a new sentencing hearing.