State v. Wilson

NOT DESIGNATED FOR PUBLICATION
No. 123,619
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellant,
v.
PATRICK CODY WILSON,
Appellee.
MEMORANDUM OPINION
Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed February
25, 2022. Sentence vacated and case remanded for resentencing.
Thomas R. Stanton, district attorney, and Derek Schmidt, attorney general, for appellant.
Regina M. Goff, of Hutchinson, for appellee.
Before BRUNS, P.J., MALONE, J., and RICHARD B. WALKER, S.J.
PER CURIAM: The State appeals the district court's decision to sua sponte grant
Patrick Cody Wilson a durational departure without giving the parties any notice of its
intent to grant such a sentencing departure. For the reasons stated below, we vacate
Wilson's sentence and remand for resentencing.
FACTS
Four times in late 2018 and early 2019, Wilson sold methamphetamine to a
confidential informant (CI). In each exchange, the CI asked to purchase 3.5 grams of
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methamphetamine. In the last exchange, Wilson borrowed the CI's car to pick up the
drugs from another source. Before Wilson could return the car and drugs to the CI, the
car broke down within 1,000 feet of an elementary school. Wilson left the drugs for the
CI in the disabled car. Based on these events, the State charged Wilson in an amended
complaint with distribution of a controlled substance within 1,000 feet of school property,
three counts of possession of a controlled substance with intent to sell, and four counts of
unlawful distribution of a controlled substance using a communication device.
On October 14, 2020, Wilson pled guilty to all charges. In exchange for his plea,
the State agreed to recommend standard, concurrent sentences and not to oppose a
dispositional departure. Wilson agreed to waive his right to a direct appeal of the
conviction and sentence, pay all costs, and register as a drug offender. Wilson also
waived his right to a preliminary hearing, a formal arraignment, and jury trial. The
district court took judicial notice of the probable cause affidavits as a factual basis for
accepting the plea. The district court ordered a presentence investigation (PSI) report
which determined Wilson's criminal history score was E. The PSI report reflected
Wilson's primary offense—distribution of a controlled substance within 1,000 feet of
school property—called for a presumptive imprisonment of 154-162-170 months.
Before sentencing, Wilson moved the court to impose a dispositional departure
sentence. In support of a dispositional departure, Wilson argued that he had 16 months'
sobriety; he graduated from outpatient drug treatment; he attended narcotics anonymous
meetings every week; he reestablished relationships with his kids; he maintained
employment for the last 15 months; and he agreed to participate in any evaluations or
requirements of the court. Wilson did not move for a durational departure.
The district court began the sentencing hearing on December 4, 2020, with the
following announcement: "The matter comes on today for sentencing. The court hereby
gives notice that the court intends or [is] strongly considering a durational departure.
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There's a motion for a dispositional departure." The district court asked if the parties were
ready to proceed, and both parties stated they were ready. The district court then asked
for sentencing recommendations from counsel. In the State's response, the prosecutor
argued, "I would ask the court not to depart durationally since the parties have agreed and
are both asking for a midrange sentence."
After hearing from counsel and Wilson, the district court imposed a controlling
sentence of 60 months' imprisonment, a substantial durational departure from the
presumptive sentence. The district court also granted Wilson's request for a dispositional
departure to probation for 36 months to be supervised by community corrections. The
only reason the district court stated on the record for granting the dispositional departure
was the State's acquiescence to the request. The district court's main reason for granting
the durational departure was the court's belief that Wilson had been overcharged by the
State and set up by the CI, based on the probable cause affidavits that had been filed with
the case. More specifically, the district judge stated:
"What happened was, at least it appears from the affidavits I've read, someone
else got in trouble with the law, they made a deal with the drug unit and they were
required to make buys from someone. You, generally when people are required to make
those buys they don't want to turn in their own drug dealer and they don't want to deal
with someone that they think is dangerous or going to cause them problems. So you were
the person selected by the informant to buy drugs from.
"You never had the drugs in your possession because it would appear, based on
your background and record, there's no way you could get that kind of amounts of drugs.
They picked the amount to buy of 3.5 grams because that bumps it up to a higher level,
presumptive prison. And you were called and you had to go over to someone else's house,
the drug dealer, and pick up the drugs and then bring them back to the informant. I don't
know what you got paid out of it for. My gut reaction is you probably took it out in drugs
to use.
"But not withstanding that fact, the first, they did it on the first day. They came
back, did it on the second day. Then they waited several months, came back the third
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time. At that time you were sent to buy 3.5 grams every time so it could be elevated to a
higher point.
"At that point you didn't have a way to get to the person selling drugs house so
you borrowed the car and your car broke down and it happened to break down within a
thousand feet of a school which elevated it up to the Level 1 which is why you're facing
the severest penalty that you can possibly face. So—and now you're charged with six
charges with anybody looking at, as I said, is going to think that you're a major drug
dealer because you got set up by the informant to be the go-between to the person who
was capable of selling that amount of drugs."
The district court gave other reasons for granting the durational departure,
including the fact that Wilson's past convictions had been based on small amounts of
drugs and Wilson had been able to stay off drugs during prior periods that he was
supervised on probation. Ultimately, the district judge told Wilson he was imposing "a
sentence that I think is appropriate based upon the crimes that I see you committed."
The district court later held two hearings to settle the journal entry as for the
court's grounds for granting the durational departure. At those hearings, the district court
incorporated the grounds in Wilson's written motion for a dispositional departure. The
district court also referred to the "Crawford" factors as additional grounds supporting the
durational departure. See State v. Crawford, 21 Kan. App. 2d 859, Syl. ¶ 2, 908 P.2d 638(1995). The district court included these grounds for granting the departure sentence in its
journal entry of judgment. The State timely appealed Wilson's sentence.
DID THE DISTRICT COURT ERR IN GRANTING A DURATIONAL DEPARTURE?
The State argues the district court erred when it sua sponte granted a durational
departure because it was "based on facts that were neither pled in a motion nor based on
any facts of the case." The State points out that K.S.A. 2018 Supp. 21-6817(a)(3) requires
the district court to notify all parties of its intent to depart on its own volition, including
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the reasons and factors relied on by the court, to allow reasonable time for either party to
respond. The State also argues that the reasons expressed by the district court at the
sentencing hearing for granting the durational departure were not substantial and
compelling. Finally, the State argues that the district court improperly tried to include
additional reasons for granting the durational departure after the sentencing hearing.
Wilson argues that the durational departure was based on "the [c]ourt record which
included the affidavits" the district court judicially noticed, Wilson's criminal history, and
the Crawford factors. Wilson does not directly respond to the State's argument that the
district court violated the notice provisions of K.S.A. 2018 Supp. 21-6817(a)(3), and he
makes no claim that the State's argument is not preserved for appeal.
When a court convicts a defendant of a crime subject to the revised Kansas
Sentencing Guidelines Act (KSGA), the court must impose the presumptive sentence
provided in the KSGA unless the court finds "substantial and compelling reasons to
impose a departure sentence." K.S.A. 2020 Supp. 21-6815(a). The district court must
"state on the record at the time of sentencing the substantial and compelling reasons for
the departure." K.S.A. 2020 Supp. 21-6815(a).
"Substantial" means something with substance that is real, not imagined, nor
ephemeral. "Compelling" means that the facts of the case force the district court to
abandon the status quo and grant an exception to the standard sentencing guidelines. State
v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008). The district court may rely on the
list of nonexclusive list of mitigating factors in K.S.A. 2020 Supp. 21-6815(c)(1) to
determine if there are substantial and compelling reasons to depart from the presumptive
sentence, but it may also rely on nonstatutory factors to depart if those factors reflect the
intent and principles of the KSGA. State v. Bird, 298 Kan. 393, 397, 312 P.3d 1265(2013).
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The Kansas Supreme Court recently clarified that the applicable standard of
review for a departure sentence based on a nonstatutory mitigating factor is an abuse of
discretion standard. State v. Morley, 312 Kan. 702, 711, 479 P.3d 928 (2021). Each
analytical step in the abuse of discretion standard requires a different inquiry: "(1)
whether the determination of a nonstatutory factor was guided by an erroneous legal
conclusion; (2) whether substantial competent evidence supported the factual finding that
the factor existed, i.e., an error of fact; and (3) whether a reasonable person would have
taken the view adopted by the sentencing court. And it is important to emphasize that
only the first step involves a legal question, subject to unlimited review." 312 Kan. at
711.
"This means appellate review of the departure decision should follow a three-step
framework: (1) determine whether the sentencing court's nonstatutory factor can be a
mitigating factor as a matter of law under K.S.A. 2019 Supp. 21-6815(c); (2) if it can,
then decide whether that nonstatutory factor's existence is supported by the record; and
(3) if so, then determine whether the sentencing court acted reasonably when it concluded
there was a substantial and compelling reason to depart in a particular case based on that
nonstatutory factor by itself or collectively with other statutory or nonstatutory factors
cited by the sentencing court." 312 Kan. at 711.
On appeal, the State asserts that the district court made a reversible error "in
finding substantial and compelling reasons for a downward durational departure both in
the manner in which notice was given and in the ultimate decision to grant a downward
durational departure." We will first address whether the district court gave adequate
notice of its intent to depart, followed by whether the district court erred in finding
substantial and compelling reasons to grant the departure.
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Notice of intent to depart
Wilson did not move the district court for a durational departure; the district court
granted the departure sua sponte. The district court may grant a departure without a
motion from either party provided it gives proper notice of its intent to do so. See K.S.A.
2020 Supp. 21-6817(a)(3) ("If the court decides to depart on its own volition . . . the court
shall notify all parties of its intent and allow reasonable time for either party to respond if
requested. The notice shall state the type of departure intended by the court and the
reasons and factors relied upon."). The district court's notice of its intention to depart
must be reasonable. "At a minimum, this means it must be provided at such a time and
with such specificity that the defendant and the State have a fair opportunity to marshal
and present their arguments for or against the proposed departure before sentence is
pronounced." State v. Carr, 29 Kan. App. 2d 501, 503, 28 P.3d 436 (2001).
The district court gave no written notice of its intent to depart and gave no oral
notice until after it called the case for the sentencing hearing. Even then, the court gave
no reasons for considering a durational departure for Wilson. Under the circumstances,
the district court violated K.S.A. 2018 Supp. 21-6817(a)(3), which requires reasonable
notice of its intent to depart including the type of departure to be granted and the factors
relied on by the court. The prosecutor had no way to argue against the district court's
durational departure factors because the court did not announce them until after the
sentence was imposed. Still, the State made clear it objected to the durational departure
"since the parties have agreed and are both asking for a midrange sentence."
This case is like State v. Martinez, 38 Kan. App. 2d 324, 327-28, 165 P.3d 1050(2007), where the district court gave no notice of its intent to impose an upward
dispositional departure until the sentencing hearing. Martinez did not object to the lack of
notice at the sentencing hearing and did not raise the issue until the first time on appeal.
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Still, this court found the district court violated the statutory notice requirement and
vacated Martinez' departure sentence:
"It is clear that the sentencing judge's notice of her intent to depart was
inadequate. There was no advance notice prior to the actual sentencing hearing. When the
sentencing judge gave notice of her intent to depart, Martinez was not provided an
adequate opportunity to marshal and present his arguments against departure before
sentence was pronounced. Consequently, the notice requirement of K.S.A. 2006 Supp.
21-4718(a)(3) [predecessor to K.S.A. 21-6817(a)(3)] was not satisfied, and we are
required to vacate the sentence and remand for resentencing." 38 Kan. App. 2d at 336.
The district court's failure to comply with the notice requirements in K.S.A. 2018
Supp. 21-6817(a)(3) is a sufficient reason for vacating the court's durational departure.
But we will also address whether the reasons stated by the district court for granting the
durational departure were substantial and compelling.
District court's reasons for granting the durational departure
The district court relied on nonstatutory grounds to grant Wilson a durational
departure, which is appropriate provided the factors reflect the principles underlying the
KSGA. Bird, 298 Kan. at 397. An appellate court will uphold the district court's
departure even when only one factor is substantial and compelling. Blackmon, 285 Kan.
at 725. The district court must "state on the record at the time of sentencing the
substantial and compelling reasons for the departure." (Emphasis added.) K.S.A. 2020
Supp. 21-6815(a). The court's comments at the time of sentencing govern as its reasons.
State v. Jackson, 262 Kan. 119, 135, 936 P.2d 761 (1997). Thus, we will limit our
analysis of the district court's durational departure sentence to the reasons the court stated
from the bench during Wilson's sentencing hearing.
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After imposing the durational departure sentence, the district court spoke at length
about Wilson's "situation" as the court saw it without specifically saying, "these are the
factors" it relied on for the durational departure. But the district court's main reason for
granting the durational departure was the court's belief that Wilson had been overcharged
by the State and set up by the CI, based on the probable cause affidavits that the court had
reviewed. In its ruling from the bench, the district court speculated about why Wilson
was chosen by the CI and why the drug buys were structured the way they were. The
district court presumed that the drug unit asked the CI to purchase 3.5 grams of
methamphetamine from Wilson because "that bumps it up to a higher level." The district
court found that Wilson "got set up by the informant to be the go-between to the person
who was capable of selling that amount of drugs." Ultimately, the district judge stated it
was imposing "a sentence that I think is appropriate based upon the crimes that I see you
committed." (Emphasis added.)
The prosecutor's office, not the court, is the representative of the State in criminal
prosecutions and has broad discretion in controlling those prosecutions. The scope of this
discretion "extends to the power to investigate and to determine who shall be prosecuted
and what crimes shall be charged." State v. Williamson, 253 Kan. 163, 165, 853 P.2d 56(1993) (citing State v. Dedman, 230 Kan. 793, 798, 640 P.2d 1266[1982]). The Reno
County district attorney's office decided what charges to file against Wilson, and Wilson
voluntarily pled guilty to each of the charges. Wilson makes no claim there was an
insufficient factual basis to support each conviction. It was not the court's role to weigh in
on how the crimes were investigated and what charges should have been filed. Thus, we
conclude the district court's belief from the affidavits that Wilson had been overcharged
by the State and set up by the CI cannot amount to a substantial and compelling reason
for the district court to sua sponte grant Wilson a durational departure.
The district court gave other reasons for granting the durational departure,
including the fact that Wilson's past convictions had been based on small amounts of
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drugs and he had been able to stay off drugs during prior periods of probation. But based
on the totality of the record, we also find these reasons do not constitute substantial and
compelling grounds for the durational departure. See Morley, 312 Kan. at 711 (whether
departure factor is guided by erroneous legal conclusion is reviewed de novo).
Thus, we conclude the district court erred in granting Wilson a durational
departure. As a result, we vacate Wilson's sentence and remand for resentencing. On
remand, the district court must comply with K.S.A. 2018 Supp. 21-6817(a)(3) if it intends
to grant Wilson a durational departure.
Sentence vacated and case remanded for resentencing.
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