337 P.3d 725 (Kan.App. 2014), 110,130, State v. Theurer

Docket Nº:110,130
Citation:337 P.3d 725
Opinion Judge:Buser, J.:
Party Name:STATE OF KANSAS, Appellant, v. MILES E. THEURER, Appellee
Attorney: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.
Judge Panel:Before BUSER, P.J., STEGALL, J., and BUKATY, S.J.
Case Date:November 21, 2014
Court:Court of Appeals of Kansas

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337 P.3d 725 (Kan.App. 2014)




No. 110,130

Court of Appeals of Kansas

November 21, 2014

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Appeal from Riley District Court; JOHN F. BOSCH, judge.



1. A sentencing court is required to impose the presumptive sentence provided by the Revised Kansas Sentencing Guidelines Act, K.S.A. 2013 Supp. 21-6815(a), unless the court finds substantial and compelling reasons to impose a departure sentence.

2. A substantial and compelling reason to depart downward from a presumptive sentence is a mitigating factor. In order for a mitigating factor to be substantial, the reason must be real, not imagined, and of substance, not ephemeral. In order to be compelling, the 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.

3. Although K.S.A. 2013 Supp. 21-6815(c)(1)(A)-(E) provides a list of potential mitigating factors, the list is nonexclusive, and a sentencing court may rely on nonstatutory factors to depart if they are consistent with the principles underlying the Revised Kansas Sentencing Guidelines Act.

4. If a sentencing court determines that a departure sentence is warranted, it must state on the record at the time of sentencing the substantial and compelling reasons for the departure and make findings of fact regarding those mitigating factors. K.S.A. 2013 Supp. 21-6815(a); K.S.A. 2013 Supp. 21-6817(a)(4).

5. An appellate court's standard of review for departure decisions depends on the issue presented. When we consider whether the record supports an articulated mitigating factor for a departure sentence, we review for substantial competent evidence. When the appellate court determines whether a particular mitigating factor may ever, as a matter of law, be substantial and compelling in any case, our review is unlimited. When the record supports a valid, articulated mitigating factor, we apply an abuse of discretion standard to determine whether the mitigating factor constituted a substantial and compelling reason to depart in the particular case.

6. A departure sentence will be upheld on appeal if any of the mitigating factors or reasons articulated by the sentencing court is substantial and compelling given the particular case. Conversely, if each individual factor, standing alone, is not sufficient to justify a departure sentence, the factors, considered collectively, may constitute a substantial and compelling basis to impose a departure sentence in the particular case.

7. Reasons which may in one case justify departure may not in all cases justify a departure. Rather, an appellate court must evaluate the offense of conviction, the defendant's criminal history, and the departure reason stated, as well as the purposes and principles of the Revised Kansas Sentencing Guidelines.

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.


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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 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.

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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 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 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...

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