State v. Theurer

• Citation: 337 P.3d 725,50 Kan.App.2d 1203
• Decision Date: 21 November 2014
• Docket Number: 110,130.
• Parties: STATE of Kansas, Appellant, v. Miles E. THEURER, Appellee.
• Court: Court of Appeals of Kansas

50 Kan.App.2d 1203
337 P.3d 725

STATE of Kansas, Appellant
v.
Miles E. THEURER, Appellee.

110,130.

Court of Appeals of Kansas.

Nov. 21, 2014.

James W. Garrison, assistant county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellant.

Pedro L. Irigonegaray and Elizabeth R. Herbert, of Irigonegaray & Associates, of Topeka, for appellee.

Before BUSER, P.J., STEGALL, J., and BUKATY, S.J.

Opinion

BUSER, J.

While driving under the influence of alcohol, Miles E. Theurer caused a head-on collision which killed Elizabeth Young and Michael Stanley. In keeping with a plea agreement, Theurer pled no contest to two counts of involuntary manslaughter while driving under the influence of alcohol. Under the Revised Kansas Sentencing Guidelines Act (RKSGA), K.S.A. 2013 Supp. 21–6801 et seq., the district court was required to impose presumptive sentences of imprisonment. Instead, the district court sentenced Theurer to two concurrent 41–month sentences but granted his motion for dispositional departure sentences. As a result, Theurer was not imprisoned but was granted 36 months of probation while under house arrest with special conditions, including serving 60 days in jail.

We hold the sentencing court erred in four aspects when it granted Theurer's motion for dispositional departure sentences. First, as a general matter, the sentencing court based its sentencing decision on an error of law by applying an incorrect legal standard. Second, the overriding factor articulated by the sentencing court for granting a departure in this case—that the defendant is an exceptional

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person with the potential to provide a great benefit to society—is not a substantial and compelling reason to grant departure sentences. Third, some of the sentencing court's other articulated reasons for granting departure sentences were not supported by substantial competent evidence. Fourth, those reasons enunciated by the sentencing court which were supported by substantial competent evidence, when considered together, did not provide a substantial and compelling reason to grant departure sentences given the circumstances of this involuntary manslaughter case.

Accordingly, we reverse the judgment of the sentencing court, vacate the sentences imposed, and remand the case to the district court with directions for resentencing.

Factual and Procedural Background

On Saturday, May 12, 2012, Theurer received a bachelor of science degree in agriculture from Kansas State University (KSU). The following evening, Theurer and three friends celebrated the occasion by visiting the Mustang Gentlemen's Club, a Junction City strip club. Several hours later, in the early morning hours of Monday, May 14, 2012, with Theurer driving a Silverado pickup truck, the four men began the return trip to Manhattan.

Eyewitnesses described Theurer as driving erratically, too fast for the circumstances, and swerving on the roadway. At about 2:45 a.m., Theurer approached a construction zone on Fort Riley Boulevard/Highway K–18, with marked eastbound and westbound lanes. Although he was traveling eastbound, Theurer entered the westbound lane, driving in the wrong direction.

337 P.3d 730

Ronnie Loggins, who had been following Theurer's truck and had properly entered the eastbound lane, flashed his headlights, honked his horn, and pulled next to Theurer, waving his arms in an effort to alert him that he was driving the wrong way. Theurer did not respond to these warnings but continued traveling eastbound at about 55 miles per hour in the westbound lane of the construction zone.

A short time later, Theurer's truck collided head-on with a westbound Buick LeSabre near Stagg Hill Road. The automobile was

50 Kan.App.2d 1206

driven by Young, a 31–year–old mother of two children. The passenger was Stanley, a 30–year–old father of two children. Due to the force of the collision, the Buick went “almost straight up in[to] the air.” The vehicle was totaled, with the front end “completely smashed.”

Young and Stanley had “severe trauma” and were killed instantly. In an affidavit filed in support of the arrest of Theurer, Officer Calvin Sanders of the Riley County Police Department averred:

“The coroner results indicated that Young ‘expired as a consequence of overwhelming injuries with damage to the central nervous system that cause [d] ... instant death’ and both died as [a] result of ‘atlanto-occipital separation.’ This means that both had their necks broken at the skull with a tear of the spinal cord due to the impact of the collision.”

Officer Sanders was dispatched to the collision. As he approached Theurer's truck, he “immediately smelled the odor of alcoholic beverage from inside the vehicle.” When asked what happened, Theurer told the officer, “ ‘In all honesty, I thought I was in the correct lane.’ ”

Theurer and his friends were seriously injured and taken to area hospitals. At Mercy Hospital, Theurer's blood was drawn for alcohol testing. At that time, he volunteered to Officer Sanders, “ ‘I'll be honest; I'm not going to say I didn't have anything to drink.’ ” After waiving his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Theurer advised Officer Sanders that he had consumed two Bud Light beers at a bar. Theurer told the officer he had stopped drinking alcohol 30 minutes prior to leaving Junction City for Manhattan. When Theurer was asked if he believed he was under the influence of alcohol, he replied, “ ‘I mean I just had a couple.’ ” Theurer also said he did not notice anyone in a vehicle trying to get his attention before the collision.

Andrew Mason, a passenger in Theurer's truck, was later interviewed by Officer Sanders. According to Mason, the men went to the strip club at about 8 p.m. on Sunday and finished drinking about 30 minutes before leaving Junction City early Monday morning

50 Kan.App.2d 1207

to return home to Manhattan. Mason claimed that prior to the collision Theurer drank one or two bottles of beer.

At the scene of the collision, Officer Sanders found in the passenger's compartment of Theurer's truck a Coors Light beer can, a “ ‘Coors Light case,’ ” and a “ ‘Maker's Mark liquor bottle.’ ” Theurer's blood sample was taken to the Kansas Bureau of Investigation laboratory for forensic testing. The results revealed that Theurer's blood-alcohol content was .19—more than twice the legal limit. See K.S.A. 2011 Supp. 8–1567(a)(2).

As a consequence of the collision, Lance Schmidt, a passenger in Theurer's truck, suffered a closed head injury which necessitated therapy at the Madonna Rehabilitation Hospital in Lincoln, Nebraska, in an effort to regain the use of his arms. Mason, also received physical therapy for his injuries. Joseph Iliff, another passenger in Theurer's truck, was also injured, and Theurer's right foot had been almost amputated as a result of the accident impact.

After the collision, Theurer attended classes at KSU through the summer and fall semesters of 2012. On April 9, 2013, the State charged Theurer with two counts of involuntary manslaughter while driving under the influence of alcohol, severity level 4 person felonies in violation of K.S.A. 2011 Supp. 21–5405(a)(3) —see K.S.A. 2011 Supp. 8–1567(a)(2) —and two counts of aggravated battery, severity level 5 person felonies, in violation of K.S.A. 2011 Supp. 21–5413(b)(2)(A), for the injuries sustained by

337 P.3d 731

Schmidt and Mason. Theurer surrendered to authorities, and he was released on bond.

On May 7, 2013, in keeping with a plea agreement, Theurer entered pleas of nolo contendere to two counts of involuntary manslaughter. In return, the State dismissed the aggravated battery charges and promised not to file additional charges related to the collision. The State also agreed to recommend that Theurer serve the standard presumptive RKSGA prison sentence for each of the involuntary manslaughter convictions. The sentences were to run concurrent with one another. If followed by the sentencing court, the State's recommendations meant that Theurer would serve 41 months in prison. See K.S.A. 2011 Supp. 21–6804(a). In keeping with the plea agreement, however, Theurer reserved the right to

50 Kan.App.2d 1208

request a departure from serving the presumptive prison sentences. After being informed of the plea agreement, District Judge John F. Bosch accepted the pleas and found Theurer guilty of two counts of involuntary manslaughter.

After the plea hearing, Theurer filed a motion for downward durational and dispositional departure sentences. He identified 17 mitigating factors as substantial and compelling reasons to depart from the presumptive RKSGA sentences of imprisonment: (1) Theurer's “unlawful conduct was aberrant behavior”; (2) Theurer “has provided...