State v. Reed

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NOT DESIGNATED FOR PUBLICATION

No. 118,664

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

SAMUEL L. REED,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; ERIC A. COMMER, judge. Opinion filed January 11, 2019.
Affirmed.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellant.

David L. Miller, of Ney, Adams & Miller, of Wichita, for appellee.

Before HILL, P.J., BUSER, J., and SIDNEY R. THOMAS, District Judge, assigned.

PER CURIAM: A jury convicted Samuel L. Reed of attempted first-degree murder.
The sentencing court imposed a downward departure sentence on remand. The State
appeals. For the reasons below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 6, 2010, Reed shot Amos Becknell twice. Becknell survived. Police
arrested Reed and a codefendant, Michael Price, for the shooting. The State charged Reed
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and Price with attempted first-degree murder. Price reached a plea agreement with the
State and received probation. Reed pled not guilty and proceeded to a jury trial. The jury
convicted Reed of attempted first-degree murder.

Before sentencing, Reed filed a motion for sentencing departure. Reed had a
criminal history score of A, which was a result of three prior person felony convictions
from one case. The 2010 grid sentences for attempted first-degree murder for an
individual with a criminal history score of A were 653, 620, or 592 months. The State
requested a 653-month sentence. After a sentencing hearing, the trial court imposed a
downward durational departure sentence of 272 months in prison. The 272-month
sentence was equivalent to the sentence a person with a criminal history score of C would
have received for attempted first-degree murder. The only reason given for the departure
in the journal entry was the "disparity between guidelines grid and penalty for completed
murder."

The State appealed the departure sentence and Reed cross-appealed his conviction.
This court upheld both the departure sentence and the conviction. State v. Reed, No.
106,807, 2013 WL 451900, *1 (Kan. App. 2013) (unpublished opinion). Both parties
petitioned for review. Our Supreme Court upheld Reed's conviction but vacated the
departure sentence and remanded for resentencing. State v. Reed, 302 Kan. 227, 229, 352
P.3d 530 (2015). Our Supreme Court held that it was error for the trial court to consider
as a mitigating factor the disparity between sentences for attempted murder and
completed murder. 302 Kan. at 252.

Reed submitted another motion for a sentencing departure before the resentencing
hearing. The State requested a 630-month sentence. After the resentencing hearing, the
sentencing court imposed another downward durational departure sentence of 272
months. The court said that a "principal consideration" for the departure was the disparity
between the sentences for attempted murder and completed murder. The court said that
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other considerations in favor of the departure included Reed's age and immaturity, the
fact that Reed's A criminal history score overstated his actual criminal conduct, and the
fact that at one point during trial, the State offered Reed a plea deal with a 12-year
sentence.

The State again appealed the departure sentence. This court vacated the sentence
because the trial court's principal basis for the departure sentence once again was the
disparity in sentences associated with convictions for completed or attempted first-
degree murder. State v. Reed, No. 115,013, 2016 WL 6396313, *4 (Kan. App. 2016)
(unpublished opinion). This court remanded for resentencing with a different judge. Our
Supreme Court denied review.

Reed filed a third departure motion before the third sentencing hearing. The State
requested a 620-month sentence. The sentencing court imposed a 230-month sentence.
The court gave five reasons on the record for the departure:
 Reed's criminal history was less significant than that of most other
defendants with an A criminal history score;
 Reed's "young age and lack of maturity" at the time of both the case
responsible for his A criminal history score and the case at hand;
 the State offered Reed a plea deal where he would have served 12 years;
 Reed apologized to Becknell and Becknell's family in open court; and
 Reed had a young son and expressed a desire to be active in his son's life.

The State objected to the departure sentence at the hearing, and timely appealed.

ANALYSIS

Courts are to impose presumptive sentences unless the district court finds
"substantial and compelling reasons to impose a departure sentence." K.S.A. 2017 Supp.
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21-6815(a). If a departure is granted, the sentencing court is to state on the record what
the substantial and compelling reasons are and make appropriate findings of fact. State v.
Theurer, 50 Kan. App. 2d 1203, 1215, 337 P.3d 725 (2014). Courts may consider both
statutory and nonstatutory mitigating factors during sentencing. State v. Blackmon, 285
Kan. 719, 724, 176 P.3d 160 (2008). A mitigating factor is substantial if it is "real, not
imagined, and of substance, not ephemeral. [Citation omitted.]" State v. Hines, 296 Kan.
608, 616, 294 P.3d 270 (2013). To be compelling, a mitigating factor "must be one which
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.]" Hines, 296 Kan. at 620.
"When even one factor relied upon by the sentencing court is substantial and compelling,
the departure sentence should be upheld." State v. Bird, 298 Kan. 393, 398, 312 P.3d
1265 (2013).

The proper standard of review for a departure sentence depends on the question
raised as follows:

"When we consider whether the record supports an articulated reason for departing, we review for
substantial competent evidence. In contrast, when we determine whether a particular factor can
'ever, as a matter of law, be substantial and compelling in any case,' our review is unlimited.
Finally, when the record supports the articulated departure reasons and the articulated reasons are
legally valid, we apply an abuse of discretion standard to determine whether a particular
mitigating factor constituted a substantial and compelling reason to depart.

"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. [Citations omitted.]" Bird, 298 Kan. at 397-98.

On appeal, the State argues that the sentencing court's reasons for departure were
not supported by substantial competent evidence and were not substantial or compelling.
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We conclude that two of the court's given factors were indeed supported by substantial
competent evidence and together are a substantial and compelling reason to depart. We
therefore affirm, and need not address the remaining three factors.

Reed's Criminal History Score

The first mitigating factor that the sentencing court listed as a reason for departure
was the disparity between the circumstances of Reed's A criminal history score and that
of "most other criminal defendants" with an A-score. The sentencing court emphasized
that Reed's A-score resulted from three convictions in one case—2009 CR 595. Of the
three, two were convictions for criminal threat for threatening two acquaintances with
gun violence, and one was a conviction for battery against a law enforcement officer for
kicking out a police car window after being arrested, resulting in glass hitting a police
officer. The sentencing court also noted that Reed was 17 years old when he committed
the underlying crimes in 2009 CR 595 and concluded that Reed's A criminal history score
was less significant than most other defendants with an A-score. Without the three crimes
from 2009 CR 595, Reed's criminal history score would have been G. The sentence for
attempted first-degree murder for an offender with a G-score ranges from 184 to 203
months, a significantly shorter sentence than the 592 to 653-month sentence range for an
offender with an A-score.

On appeal, the State asserts there was lack of substantial competent evidence to
support the sentencing court's conclusion that Reed's A-score differed significantly from
the typical A-score offender. Although it is not completely clear from the State’s
argument, we believe we need to address: (1) whether there is substantial competent
evidence in the record to support this reason to depart, and (2) if we find the record does
support the reason to depart and that the reason is a legally valid, then "we apply an abuse
of discretion standard to determine whether a particular mitigating factor constituted a
substantial and compelling reason to depart." Bird, 298 Kan. at 398. "Substantial
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competent evidence is legal and relevant evidence a reasonable person could accept to
support a conclusion." Bird, 298 Kan. at 399.

The sentencing court's conclusion that Reed's A-score was less significant than
most other defendants with an A-score relies on three facts. All three of these facts are
supported by substantial competent evidence. The first fact is that Reed was 17 when he
committed the crimes underlying his three person felony convictions. The record shows
Reed was born in June 1991, and he made the criminal threats on September 19, 2008,
and committed battery against a law enforcement officer on September 23, 2008. The
second fact is that all three person felonies resulted from a single case. The record shows
this is true; all three convictions were in case 2009 CR 595. The third fact is that the court
stated that the circumstances of Reed's battery against a law enforcement officer were
less significant than the circumstances typical of most A-score defendants. This factor
consists of fact and opinion, but the factual part is indeed supported. The record shows
that the battery charges resulted from Reed breaking a patrol car window while under
arrest, sending pieces of the window flying and some of the broken glass hit an officer. It
was the court's opinion that this offense was less severe than other conduct that has been
charged as battery against a law enforcement officer. In sum, all three facts underlying
the sentencing court's conclusion are indeed supported by substantial competent
evidence.

Reed also cited to the United States Sentencing Guidelines (U.S.S.G.) for support.
The U.S.S.G. allows a court to impose a departure sentence if it concludes "the
defendant's criminal history category substantially over-represents the seriousness of the
defendant's criminal history or the likelihood that the defendant will commit other
crimes." U.S.S.G. § 4A1.3(b)(1). Even if the perceived over-representation of Reed's
criminal history was not a factor listed in the U.S.S.G., however, the court could still
consider it as a mitigating factor so long as the factor is consistent with the principles
underlying the Kansas Sentencing Guidelines Act (KSGA). See State v. McKay, 271 Kan.
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725, 730, 26 P.3d 58 (2001). In Reed's first appeal, our Supreme Court acknowledged
that the sentencing court was "free to consider the underlying circumstances of Reed's
earlier offenses to mitigate the impact of what the judge evidently believed was an
unwarranted criminal history score." Reed, 302 Kan. at 253.

On appeal, the State unconvincingly argues that "if the concept of" U.S.S.G.
§ 4A1.3(b)(1) is going to be applied, "then it stands to reason its foundational framework
should likewise be applied." The State then encourages this court to review Reed's
criminal history "in its entirety" and look to

"the nature of the prior convictions, as well as their circumstances and ages; the
defendant's age when he or she committed the prior crimes; the length of the prior
sentences; what was happening in the defendant's life when the offenses were committed;
and the closeness in time of the prior offenses."

The State asserts if Reed's criminal history is viewed in this light, what it really
shows is a "portrait of an individual who was actively involved in a gang lifestyle with a
propensity for gun violence." Effectively, the State invites this court to reweigh the
evidence on appeal and come to the State's favored conclusion. We decline this
invitation.

In short, we find precedent from our Supreme Court establishes that the
circumstances of past convictions may be a proper mitigating factor. Moreover, we find
this mitigating factor is supported by substantial competent evidence as outlined above.
As a result, the State's only means of attacking the sentencing court's use of Reed's
overstated criminal record as a mitigating factor is an abuse of discretion challenge
arguing that the factor does not constitute a substantial and compelling reason for
departure in this case. State v. Spencer, 291 Kan. 796, 807, 248 P.3 256 (2011).

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This court may not reweigh evidence under an abuse of discretion review. Under
an abuse of discretion review, this court will reverse the sentencing court's decision only
if no reasonable person would agree with the ruling. The State, as the party challenging
the sentencing court's decision, bears the burden to show an abuse of discretion. State v.
Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011). The State urges this court to
conclude that Reed's criminal history shows only that he was gang-affiliated and prone to
escalating violence.

While a reasonable person could look at Reed's criminal history and come to the
State's favored conclusion, that is not the proper standard. The proper standard for our
review is whether a reasonable person could look at Reed's criminal history and come to
the same conclusion as the sentencing court. Anderson, 291 Kan. at 855. Reed was only
17 when he committed the crimes charged in a single criminal case that gave him an A
criminal history score. A reasonable person could conclude that Reed kicking out a car
window which caused some glass to hit a law enforcement officer, is not as severe as
other forms of battery against a law enforcement officer. A reasonable person could also
conclude that awarding Reed the highest possible criminal history score because of
convictions from one case stemming from conduct as a minor does, in fact, overstate
Reed's criminal history as compared to other A-score offenders. Accordingly, the
sentencing court's use of this factor is legally valid, supported by substantial competent
evidence, and passes abuse of discretion review.

Reed's Age and Lack of Maturity

The second mitigating factor the sentencing court relied on was Reed's young age
both at the time of the shooting and at the time of the case responsible for his A criminal
history score. Reed was 17 at the time of 2009 CR 595, and 19 when he shot Becknell.
On appeal, the State argues that the sentencing court erred by relying on Reed's age as a
mitigating factor without articulating why it was significant. The State cites State v.
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Ussery, 34 Kan. App. 2d 250, 259, 116 P.3d 735 (2005), in support of its claim that
"[r]eliance upon the relative age of a defendant, absent any analysis of how such tender
years played a mitigating role, is improper and does not form a substantial and
compelling basis to depart from a presumptive sentence."

Ussery held that the sentencing court erred when it considered as a mitigating
factor Ussery's age (18) and grid sentence (147 to 165 months) compared to the age (17)
and sentence (30 months in juvenile detention) of a codefendant who the sentencing court
considered the "primary instigator." 34 Kan. App. 2d at 252-53, 258. In its analysis
Ussery cited State v. Favela, 259 Kan. 215, 237-38, 911 P.2d 792 (1996), to acknowledge
that our Supreme Court has recognized a defendant's immaturity and impaired judgment
due to age as a valid mitigating factor. 34 Kan. App. 2d at 258. However, the facts in
Favela differ in important ways. For example, Ussery held that the sentencing court erred
by considering Ussery's age relative to that of his codefendant, rather than engaging in
"individualized consideration" of Ussery's "relative age, immaturity, and impaired
judgment as distinguished from the average adult offender." 34 Kan. App. 2d at 258. The
sentencing court in this case did not try to use the defendant's age relative to a
codefendant's like the sentencing court in Favela did.

More recently, this court decided State v. Cato-Perry, 50 Kan. App. 2d 623, 332
P.3d 191 (2014). In that case the sentencing court, like the one here, listed as a mitigating
factor Cato-Perry's young age at the time he committed the crimes, with no elaboration.
This court wrote that "without more, the fact that Cato-Perry was 19 or just turned 20
years old when he committed the aggravated robbery, standing alone, is not a substantial
and compelling reason justifying a departure sentence as matter of law." 50 Kan. App. 2d
at 631. Nevertheless, this court again cited to Favela to establish that in cases where the
sentencing court cites to a defendant's young age but does not elaborate, the defendant's
age may still be considered a mitigating factor in combination with other acceptable
factors. 50 Kan. App. 2d at 631. This court held that the combination of Cato-Perry's age
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and another nonstatutory mitigating factor "were substantial and compelling reasons that
justified [Cato-Perry's] departure sentence." 50 Kan. App. 2d at 633.

Finally, in our Supreme Court's decision in Reed's first appeal, the court noted that
"[i]n the proper context, Reed's age may serve as part of the calculus in finding a
substantial and compelling reason for departure." 302 Kan. at 253. Our Supreme Court
again cited to Favela in support of this finding. 302 Kan. at 253.

The State cites to Cato-Perry to support its argument that "there is not substantial
competent evidence defendant's age should have been considered as part of the greater
departure criteria in this case." However, the fact that Reed was 17 at the time of his three
person felonies in case No. 2009 CR 595 and 19 at the time he shot Becknell is well
established and supported by substantial competent evidence. Under Favela, Cato-Perry,
and Reed, a sentencing court may properly consider a defendant's young age—without
any further elaboration—as a mitigating factor so long as it is combined with other proper
mitigating factors.

In sum, a sentencing court's findings that a defendant's criminal history was less
significant than most other defendants with a similar criminal history score can be a
substantial and compelling reason to depart. Moreover, in this case the sentencing court
did have substantial competent evidence to support such a finding and did not abuse its
discretion by using this finding as a mitigating factor. As a result, it is a proper mitigating
factor. Furthermore, Reed's age can also be considered together with this appropriate
mitigating factor to establish a substantial and compelling reason to depart. Therefore, the
sentencing court here relied on two substantially supported, legally valid mitigating
factors that are together substantial and compelling.

Affirmed.