State v. Horton

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NOT DESIGNATED FOR PUBLICATION

No. 114,194


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant/Cross-appellee,

v.

DEREK HORTON,
Appellee/Cross-appellant.


MEMORANDUM OPINION

Appeal from Labette District Court; ROBERT J. FLEMING, judge. Opinion on remand filed
December 15, 2017. Affirmed.

Stephen P. Jones, deputy county attorney, Hillary McKinney, county attorney, and Derek
Schmidt, attorney general, for appellant/cross-appellee.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee/cross-appellant.

Before STANDRIDGE, P.J., HILL, J., and BURGESS, S.J.

PER CURIAM: This case returns to this court with directions for reconsideration of
our decision dismissing Derek Horton's cross-appeal, where he claimed that the
sentencing court erred in not imposing a downward durational departure sentence. In
light of our Supreme Court's opinion in State v. Looney, 299 Kan. 903, 327 P.3d 425
(2014), where the court ruled that all departure sentences are subject to appeal unless
appellate jurisdiction is divested by a more specific provision of law, our order
dismissing the cross-appeal has been rightly vacated by the Supreme Court. Accordingly,
we turn to the merits of the cross-appeal.
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The parties are well aware of the facts of this case, and we need not repeat them
here. Instead, we will proceed with our analysis of Horton's cross-appeal. The court
sentenced Horton to 41 months in prison. Horton requested a downward durational
departure to a term between 18 and 24 months. In granting the dispositional departure,
the court found the following mitigating factors existed:

 Horton was young and immature at the time of the offense, but he had
matured since that time;
 he lacked any criminal history;
 he took responsibility for his actions;
 he expressed genuine remorse;
 he had strong family support; and
 public safety would not be compromised with probation.

In this appeal, Horton contends the same mitigating factors apply and compel a durational
departure sentence.

The decision whether to depart from a sentence lies within the discretion of the
sentencing court. State v. Jackson, 297 Kan. 110, 112, 298 P.3d 344 (2013). A judicial
action constitutes an abuse of discretion if

 no reasonable person would take the view adopted by the trial court;
 the action is based on an error of law; or
 the action is based on an error of fact. State v. Marshall, 303 Kan. 438, 445,
362 P.3d 587 (2015).

Here, the district court clearly explained why it denied Horton's motion for a
downward durational departure:
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"[W]hen I consider the totality of everything I've heard, the letters, the evidence, I find
substantial and compelling reasons to grant the defendant's motion for a dispositional
departure. . . .
"I'm denying, however, Mr. Horton, your motion for a downward durational
departure. If you can't keep your life on track, on a positive track, if you can't comply
with the conditions of probation that I'm about to impose upon you, I see no reason to
shorten your sentence."

Our question becomes: Did the sentencing court abuse its discretion by granting
one type of a departure sentence and not the other?

The district court clearly explained its reasoning for denying Horton's request for a
durational departure. Obviously, the court thought that Horton would benefit from the
rigors of a set of probation conditions designed to rehabilitate, such as speaking to high
school classes about the dangers and tragedy caused by drinking and driving. But if
probation proved ineffective, the court saw no reason to shorten Horton's sentence in the
event that he was sent to prison.

The record reflects the musings of an experienced trial judge weighing the tragic
consequences of teenaged drinking and driving. This sentencing record exhibits justice in
the making; a consideration and assessment of facts, law, and society by a judge
balancing the competing interests of the prosecution and the defendant. The court
expressed leniency in disposition of the sentence but not in the duration of the sentence.
Some would agree. Some would not.

Since reasonable people could adopt the same view as the district court, while
some may not, the district court did not abuse its discretion. See State v. Gant, 288 Kan.
76, 81-82, 201 P.3d 673 (2009), abrogated on other grounds by State v. Sampson, 297
Kan. 288, 297, 301 P.3d 276 (2013). With no abuse of discretion shown by the cross-
appeal, we must affirm.
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Affirmed.