State v. Grice

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NOT DESIGNATED FOR PUBLICATION

No. 113,272

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

CURTIS IRIS GRICE,
Appellee.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed March 25,
2016. Affirmed.

Michael G. Jones, assistant county attorney, and Derek Schmidt, attorney general, for appellant.

Amy J. Ahrens, of Ahrens Law Office, of Leavenworth, for appellee.

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

BUSER, J.: The State appeals the district court's granting of Curtis Iris Grice's
motion for a dispositional departure sentence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Grice of theft, in violation of K.S.A. 2012 Supp. 21-5801(a)(1),
(b)(6), for stealing a bottle of Tanqueray Gin from Brewski's Liquor on April 28, 2013.
The liquor was valued at $25.91. Although a first-time theft of the liquor would have
been a misdemeanor, the State charged Grice with a severity level 9 nonperson felony
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because he had committed two or more prior theft convictions. See K.S.A. 2012 Supp.
21-5801(b).

After Grice's conviction, a presentencing investigation (PSI) report was prepared
which detailed his lengthy criminal history. Among the 33 convictions listed were a
Missouri conviction for stealing from a dwelling in 1979; Georgia convictions for theft in
1994 and shoplifting in 1995; 10 Kansas convictions for theft dated 1996 through 2006;
and two Kansas convictions for attempted theft in 1994 and 2009.

Sentencing occurred on December 19, 2014. Grice had a criminal history
classification of B and two special sentencing rules applied to his sentencing. First, Grice
had three or more prior convictions for felony theft, burglary, or aggravated burglary. See
K.S.A. 2012 Supp. 21-6804(p). Second, he was on parole for a felony when he
committed this crime. See K.S.A. 2012 Supp. 21-6604(f)(1). The presumptive sentence
for Grice's theft conviction was 13 to 15 months' presumptive imprisonment. See K.S.A.
2012 Supp. 21-6804(a).

Although the presumptive sentence was prison, Grice moved for a dispositional
departure to probation because he alleged the degree of harm resulting from the theft was
significantly less than a typical theft, he had continuously shown his willingness to
cooperate with court orders, and granting his request would promote his rehabilitation by
allowing him to obtain substance abuse treatment.

While the State acknowledged the "low value" of the bottle of gin, the State
opposed the departure motion and urged the sentencing court to impose a prison sentence
because Grice's extensive criminal history demonstrated that he had a propensity to steal.

After considering the parties' arguments, the sentencing court granted Grice a
dispositional departure. He was sentenced to 14 months' imprisonment but granted
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probation for 12 months under the supervision of community corrections. A special
condition of probation was that Grice serve 60 days in jail.

The State timely appealed the departure sentence. Of note, Grice served his 60-day
jail term and was released on probation on February 25, 2015.

DISPOSITIONAL DEPARTURE SENTENCE

On appeal, the State presents a two-fold argument. First, it contends the sentencing
court erred by granting Grice a dispositional departure that was, in part, not supported by
substantial competent evidence. Second, the State asserts the sentencing court's reasons
for granting the departure were not substantial and compelling. On the other hand, Grice
counters that the degree of harm caused by the theft was significantly less than a typical
theft and, as a result, the departure sentence was an appropriate exercise of judicial
discretion.

At the outset, it is necessary to summarize Kansas law regarding departure
sentences. A sentencing court shall impose the presumptive sentence provided by the
Kansas Sentencing Guidelines Act (Guidelines) unless the judge finds "substantial and
compelling reasons to impose a departure sentence." K.S.A. 2012 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. 2012 Supp. 21-6815(a); K.S.A. 2012
Supp. 21-6817(a)(4).

Our Supreme Court has provided helpful guidance in the interpretation of statutes
relating to departure sentences. For example, "substantial" means something real, not
imagined; something with substance, not ephemeral. State v. Blackmon, 285 Kan. 719,
724, 176 P.3d 160 (2008). "Compelling" means that the circumstances of the case force
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the sentencing court "to abandon the status quo and to venture beyond the sentence that it
would ordinarily impose." 285 Kan. at 724. The Supreme Court has also emphasized the
individualized, fact-intensive inquiry involved in the determination of whether a
departure sentence should be granted, observing that "'"[r]easons which may in one case
justify departure may not in all cases justify a departure."'" State v. Martin, 285 Kan. 735,
744, 175 P.3d 832 (2008).

Next, we consider our appellate court's standard of review in analyzing issues
relating to departure sentences. Not surprisingly, the standard of appellate review
depends on the question raised. An appellate court applies a substantial competent
evidence standard when the question on appeal is whether the record supports the
particular reasons for departure articulated by the sentencing judge. State v. Bird, 298
Kan. 393, 397, 312 P.3d 1265 (2013). Substantial competent evidence is evidence
possessing both relevance and substance that a reasonable person could accept as being
adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).

Appellate review is de novo, however, when the question involves a determination
of whether a particular mitigating or aggravating factor found by the sentencing court
"can 'ever, as a matter of law, be substantial and compelling in any case.'" Bird, 298 Kan.
at 397-98.

Finally, when the record supports the district court's reasons supporting the
departure and those reasons are legally valid, an appellate court utilizes an abuse of
discretion standard to decide whether the sentencing judge based his or her conclusion
that substantial and compelling reasons warranted a departure upon a proper weighing of
the mitigating and any aggravating circumstances. 298 Kan. at 398; State v. Rochelle, 297
Kan. 32, 45, 298 P.3d 293, cert. denied 134 S. Ct. 270 (2013).

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Given the multifaceted approach of the State's claim of error, all three appellate
standards of review will be utilized in resolving this appeal.

Based on the district judge's statements made at sentencing, the dispositional
departure was granted because the theft of liquor was a petty crime, and given prison
overcrowding, it was not cost effective to incarcerate Grice in prison when a less-costly
60-day jail sentence and probation would provide punishment and comply with the
purposes of the Guidelines.

As the sentencing judge explained to Grice:

"I've listened very carefully to your attorney's motion for dispositional departure
or durational departure. I'm persuaded that there are substantial and compelling reasons to
dispositionally depart. I think that the facts of this case are substantially less than other
thefts that occur in the community that are felonies.
"Your history, though, shows that you've got considerable issues with keeping
away from other people's property and exerting unauthorized control over property; so
for that degree, I'm going to order that you serve 60 days in jail, which is the maximum I
can give you, but then suspend the prison sentence.
"The Court will also note that we are reaching an overcrowded limit at the
prisons and were very close to reaching that last time I checked. It costs a considerable
sum of money to incarcerate people in the—in the State institutions versus in the county
jail, so that is also a factor that the Court weighs in determining the societal interest in
seeing that you be punished: one spending twenty-some thousand dollars, and one
spending a couple hundred dollars or maybe a thousand dollars to keep you in our jail."

We begin by addressing whether the sentencing court's first reason for granting a
departure—that the degree of harm or loss was substantially less than usual—can ever, as
a matter of law, be a substantial and compelling reason to depart in any case. See Bird,
298 Kan. at 397-98. The answer to that question is found in K.S.A. 2012 Supp. 21-
6815(c)(l)(E) which contains a nonexclusive list of mitigating factors which a district
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court may consider when determining whether substantial and compelling reasons exist
for a departure. Among the listed statutory mitigating factors is: "the degree of harm or
loss was significantly less than typical for such an offense." In short, the sentencing
court's first factor cited for granting a dispositional departure was, as a matter of law, a
statutory mitigating factor that may, depending on the circumstances, justify imposition
of a departure sentence.

Next, with regard to the degree of harm or loss mitigating factor, the State does
not contest that there was substantial competent evidence in the record to prove this
factor. See Bird, 298 Kan. at 397. Grice was convicted of feloniously stealing property
valued at less than $1,000. In assessing whether the degree of harm or loss was
significantly less than is typical, "[t]he issue is not what is required for a conviction, but
what is typical in such a conviction." State v. Myers, No. 90,525, 2004 WL 1176634, at
*2 (Kan. App. 2004) (unpublished opinion). The State candidly concedes that the "value
of the item taken was relatively low." We are persuaded that a stolen item valued at
$25.91 constitutes a harm or loss that is significantly less than is typical for defendants
charged with stealing property valued at less than $1,000.

The State's primary complaint with regard to the first mitigating factor is that there
were no substantial and compelling reasons to impose a departure sentence. See K.S.A.
2012 Supp. 21-6815(a). While the "State agrees that it may seem excessive to put
someone in prison for stealing a $25.91 bottle of liquor in some cases," in the present
case, the State asserts the sentencing court "disregarded the purpose of the habitual
offender theft statutes by permitting probation."

In response, Grice emphasizes that departure was warranted under the facts of the
case because it was consistent with the underlying principles of the Guidelines. In
particular, Grice cites Bird for the proposition that, according to the Guidelines, sanctions
should be imposed based on harm inflicted and incarceration should be reserved for
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serious and violent offenders who present a threat to public safety. See Bird, 298 Kan. at
399.

Our resolution of this aspect of the State's appeal is informed by our standard of
review, noted earlier, which provides that we must consider whether the sentencing
court's decision was an abuse of discretion. 298 Kan. at 397. A judicial action constitutes
an abuse of discretion if it is (1) arbitrary, fanciful, or unreasonable, i.e., no reasonable
person would have taken the view adopted by the court, (2) guided by an erroneous legal
conclusion, or (3) based upon an error of fact. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256
P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

Was the fact that Grice committed a petty theft, which was significantly less
harmful than a typical theft of property up to $1,000, a substantial and compelling reason
to grant him probation given his lengthy criminal record as a habitual thief?

Both parties raise valid points. It is undisputed that the amount in controversy,
$25.91, represents a petty theft that under typical circumstances would constitute a class
A nonperson misdemeanor, not a felony conviction with a presumptive prison sentence.
See K.S.A. 2012 Supp. 21-5801(b)(4). On the other hand, Grice's prior theft convictions
merited enhanced punishment in this case as a severity level 9 nonperson felony. See
K.S.A. 2012 Supp. 21-5801(b)(6). Given Grice's criminal history score of B, the
Guidelines required a presumptive prison sentence ranging from 13 to 15 months, with
the sentencing court imposing a 14-month term.

While other judges may properly disagree with the granting of a departure
sentence in this case, given our standard of review, we are unable to conclude that the
sentencing court's action was arbitrary, fanciful, or unreasonable such that no reasonable
person would have taken the view adopted by the court.

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In particular, it is clear from the sentencing court's comments that it carefully
weighed the punitive aspects of granting the departure motion. The sentencing court
noted that if Grice was imprisoned for 14 months he would be entitled to 20% good time
credit. As calculated by Grice on appeal, this credit could have resulted in reducing his
time of incarceration to about 11 months. While the sentencing court's granting of a
departure precluded Grice's incarceration for several months, the defendant did not avoid
punishment. In granting probation, the sentencing judge emphasized, "I'm going to order
that you serve 60 days in jail, which is the maximum I can give you." The sentencing
court then denied a request to delay imposition of the jail time, and Grice was committed
to jail on the same day he was sentenced.

In this context, the sentencing court's departure decision does not seem arbitrary,
fanciful, or unreasonable. While judges may differ on whether 14 or 11 months
imprisonment compared to 2 months' incarceration in jail is appropriate punishment for a
habitual thief who committed a petty theft, we are persuaded that, consistent with the
Guidelines, the sentencing court exercised appropriate judicial discretion by predicating
the departure sentence of probation with the punishment of 60 days' incarceration. As our
Supreme Court has indicated, included within the underlying principles and legislative
purposes of the Guidelines is the fact that "incarceration should be reserved for
serious/violent offenders who present a threat to public safety" and "sanctions should be
imposed based on harm inflicted." Bird, 298 Kan. at 399.

An appellate court must evaluate each departure sentence on its own merits and
consider "'"the offense of conviction, the defendant's criminal history, and the departure
reason stated, as well as the purposes and principles of the . . . Guidelines."'" Martin, 285
Kan. at 744. All things considered, we do not find an abuse of discretion in the
sentencing court's determination that substantial and compelling reasons existed in this
unique case to grant a dispositional departure.

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As mentioned earlier, in addition to the lesser degree of harm or loss mitigating
factor, the sentencing court also based its departure decision on overcrowded prison
conditions and the high cost of prison confinement compared to jail confinement. A
departure will be upheld on appeal if any of the factors articulated by the district court is
substantial and compelling. Bird, 298 Kan. at 398. Given our holding that the first
mitigating factor was a substantial and compelling reason to justify the imposition of a
dispositional departure sentence, we decline to review the other two factors found by the
sentencing court.

Affirmed.