State v. Wright

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NOT DESIGNATED FOR PUBLICATION

No. 114,044

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KENNY R. WRIGHT, JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed September 9,
2016. Affirmed.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.

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

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

Per Curiam: Kenny R. Wright, Jr., appeals the district court's decision to deny his
sentencing request for a dispositional departure to probation. Wright argues he presented
substantial and compelling reasons to support a dispositional departure sentence. But the
district court is not required to impose a departure sentence even if substantial and
compelling reasons would justify a departure. K.S.A. 2015 Supp. 21-6818(a). Although
the reasons provided by Wright may be considered compelling factors in support of
departure, the district court noted that Wright had been given numerous opportunities to
avoid a prison sentence and yet continued to maintain his gang affiliations. Given the
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serious nature of Wright's conviction for criminal possession of a firearm, the court found
that public safety considerations outweighed Wright's potential for rehabilitation. A
reasonable person could agree with the district court's determination to deny Wright's
request to receive probation instead of a prison sentence. The district court did not abuse
its discretion in denying Wright's motion for a dispositional departure.

FACTS

In November 2014, Wichita police stopped Wright after his car was seen fleeing
an area where gunshots had been reported. During the stop, an officer observed a
handgun behind the driver's seat in plain view. The State charged Wright with criminal
possession of a firearm and driving with a suspended license.

Pursuant to a plea agreement with the State, Wright agreed to plead guilty to
criminal possession of a firearm. In exchange, the State dismissed the remaining charge
and agreed to join Wright's request for a durational departure sentence from 15-17
months in prison to 6 months in prison, to run consecutive to his sentence in case No. 11
CR 1960. The terms of the plea agreement allowed for Wright to argue for any alternative
disposition as well. The district court accepted Wright's guilty plea and scheduled a
sentencing hearing.

Before sentencing, Wright filed a motion for dispositional and/or durational
departure. In the motion, Wright claimed there were substantial and compelling reasons
to depart from the presumptive prison sentence and impose probation and/or to depart
from the 15- to 17-month prison sentence in the applicable grid box and impose a
sentence of 6 months in prison. Specifically, Wright asserted he was only 20 years old
when the crime occurred and did not have an extensive criminal history; therefore, he
was not a threat to the community.
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At the sentencing hearing, the State asked the court to follow the plea agreement
and grant Wright's request for a durational departure to 6 months in prison. The State
urged the court to deny Wright's request for a dispositional departure to probation, noting
that Wright had violated his probation in case No. 11 CR 1960 on three separate
occasions and appeared unwilling to change his behavior or modify his lifestyle. In
response to the State's recommendations, defense counsel argued that the district court
should give Wright another chance at probation because (1) he had obtained employment
as a restaurant manager, (2) he had made payments on his fines, (3) he lacked maturity
based on his age, and (4) he was not a threat to the community because he did not fire the
gun and was unaware that the gun was in the car. Wright personally addressed the court,
asserting that a dispositional departure sentence of probation was warranted due to his
employment and his involvement in his young daughter's life. Wright also claimed that
he had been successful in removing gang influences from his life.

The district court denied Wright's request for a dispositional departure, finding that
"the public safety considerations outweigh the reformation and rehabilitation possibilities
in this case by virtue of [Wright's] own demonstrated actions." Instead, the court granted
the parties' joint request for a durational departure sentence down to 6 months in prison,
consecutive to Wright's sentence in case No. 11 CR 1960 of 100 months.

ANALYSIS

On appeal, Wright argues the district court erred by denying his request for a
dispositional departure sentence. In support of his argument, he claims he presented
substantial and compelling reasons supporting a dispositional departure to probation. We
have jurisdiction to review Wright's sentence under K.S.A. 2015 Supp. 21-6820(a). See
State v. Looney, 299 Kan. 903, 908-09, 327 P.3d 425 (2014) (holding that all departure
sentences are subject to appeal under K.S.A. 21-4721[a] [now K.S.A. 2015 Supp. 21-
6820(a)] unless a more specific provision deprives this court of jurisdiction).
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When considering a challenge to the district court's ruling regarding the extent of a
departure sentence, we review for an abuse of discretion. State v. Spencer, 291 Kan. 796,
807-08, 248 P.3d 256 (2011). A judicial action constitutes an abuse of discretion if the
action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is
based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).

A district court must impose the presumptive sentence for a crime unless it finds
that substantial and compelling reasons warrant a departure. K.S.A. 2015 Supp. 21-
6815(a). The term "substantial" is defined as "something that is real, not imagined,
something with substance and not ephemeral." State v. Jolly, 301 Kan. 313, Syl. ¶ 9, 342
P.3d 935 (2015). "Compelling" reasons are those that force the court "'to abandon the
status quo and to venture beyond the sentence it would ordinarily impose.' [Citation
omitted.]" State v. Hines, 296 Kan. 608, 620, 294 P.3d 270 (2013). The district court
considers both mitigating and aggravating factors when determining whether substantial
and compelling reasons exist for granting a departure from a guidelines sentence. See
Spencer, 291 Kan. at 809 (noting that balancing of mitigating and aggravating factors is
implied in K.S.A. 21-4716 [now K.S.A. 2015 Supp. 21-6815]); K.S.A. 2015 Supp. 21-
6815(c)(1) (providing nonexclusive list of mitigating factors); K.S.A. 2015 Supp. 21-
6815(c)(2) (providing nonexclusive list of aggravating factors).

Wright lists several mitigating factors he claims should have given the court
substantial and compelling reasons to grant a dispositional departure. Specifically, Wright
asserts he was not a threat to society because (1) he had gainful employment, (2) he was
fulfilling his duties as a father, (3) he had made progress in severing his gang
connections, (4) he had not recently committed any other crimes, (5) he did not fire the
weapon he was convicted of possessing and he did not know that the weapon was in his
car, (6) his crime was victimless, and (7) his young age and immaturity caused him to
lack the substantial capacity for judgment at the time he committed the offense. Wright
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argues that in light of these factors, the district court abused its discretion when it denied
his request for a dispositional departure.

We agree that the reasons alleged by Wright may be compelling factors in support
of a departure sentence. See, e.g., K.S.A. 2015 Supp. 21-6815(c)(1)(E) (victimless nature
of crime may present substantial and compelling reason for departure); State v. Bird, 298
Kan. 393, 400-01, 312 P.3d 1265 (2013) (evidence that defendant is not a threat to
society may be factor in support of departure); State v. Ussery, 34 Kan. App. 2d 250, 258,
116 P.3d 735 (2005) (age of defendant may be factor in support of departure); State v.
Crawford, 21 Kan. App. 2d 859, 861, 908 P.2d 638 (1995) (rehabilitative efforts and
family obligations may be compelling factors in support of departure). But even if
substantial and compelling reasons justify a departure, the district court is not required to
impose a departure sentence. K.S.A. 2015 Supp. 21-6818(a) ("When a departure sentence
is appropriate, the sentencing judge may depart from the sentencing guidelines."
[Emphasis added.])

In denying Wright's request for a departure to probation, the district court judge
stated that "[t]here comes a time when I have to balance the needs of public safety versus
realistic chance of offender reformation." The court noted that Wright had been given
numerous opportunities to avoid a prison sentence in case No. 11 CR 1960 and yet
continued to maintain his gang affiliations. Given the serious nature of Wright's
conviction for criminal possession of a firearm, the court found that public safety
considerations outweighed Wright's potential for rehabilitation. A reasonable person
could agree with the district court's decision to deny Wright's request to receive probation
instead of a prison sentence. See State v. Box, No. 110,491, 2014 WL 6490232, at *2
(Kan. App. 2014) (unpublished opinion) ("[I]t is reasonable to conclude that evidence of
a lack of amenability to probation precludes a dispositional departure from a presumptive
prison sentence to probation, even if other factors otherwise warrant a durational
departure."), rev. denied 302 Kan. 1012 (2015).
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Wright has failed to establish that the district court's decision was based on an
error of fact or law or that it was arbitrary, fanciful, or unreasonable. The district court
did not abuse its discretion in denying Wright's motion for a dispositional departure.

Affirmed.