State v. Bird

Decision Date22 November 2013
Docket NumberNo. 103,855.,103,855.
Citation312 P.3d 1265
PartiesSTATE of Kansas, Appellant, v. Sean BIRD, Appellee.
CourtKansas Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court

1. A sentencing court is required to impose the presumptive sentence provided by the Kansas Sentencing Guidelines Act, K.S.A. 21–4701 et seq., unless the judge finds substantial and compelling reasons to impose a departure sentence.

2. Although K.S.A. 21–4716(c) contains a list of potential departure factors, the list is nonexclusive, and a sentencing court can rely on nonstatutory factors to depart as long as the factors are consistent with the principles underlying the Kansas Sentencing Guidelines Act.

3. Recognizing a defendant's acceptance of responsibility as a nonstatutory departure factor is consistent with the underlying principles of and legislative purposes behind enacting the Kansas Sentencing Guidelines Act.

4. The sentencing court's articulated reasons for granting a departure must be supported by substantial competent evidence.

5. In order to determine whether a sentencing court's articulated reasons for granting a departure are supported by substantial competent evidence, an appellate court must have factual findings from the district court.

Ellen H. Mitchell, county attorney, argued the cause, and Steve Six, attorney general, was with her on the brief for appellant.

Janine A. Cox, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by MORITZ, J.:

We granted Sean Bird's petition for review seeking reversal of the Court of Appeals' decision vacating the district court's imposition of a downward durational departure sentence. Because we conclude substantial competent evidence supports at least two of the mitigating factors found by the district court and those factors, when considered together, constituted substantial and compelling reasons to depart, we reverse the panel's decision and affirm the district court's departure sentence.

Factual and Procedural Background

After Bird was arrested for robbing a Taco John's restaurant, law enforcement officers executed a search warrant on his home and discovered controlled substances and drug paraphernalia. Based on this evidence, the State charged Bird with robbery, criminal threat, possession of cocaine, possession of marijuana, and possession of drug paraphernalia. Bird eventually pled guilty to possession of cocaine, and in return the State dismissed the remaining drug charges. A jury convicted Bird of criminal threat and a lesser-included theft charge but acquitted him of robbery.

Prior to sentencing, Bird filed a motion for a downward durational and dispositional departure. The motion did not specify the crimes for which he sought a departure, but it did cite several factors in support of his request, including his acceptance of responsibility for his actions; his lack of capacity for judgment at the time of the offense because of a mental impairment; and his promise to participate in a proposed rehabilitation plan.

At the sentencing hearing, the State opposed any departure and sought the maximum penalty for each conviction—42 months' imprisonment for possession of cocaine, 7 months' imprisonment for criminal threat, and the 12 months already served for the theft conviction. At the hearing, Bird also was sentenced for battery and theft convictions stemming from a similar but separate offense at a Dillon's store. In that case, the State sought a controlling sentence of 12 months' imprisonment with the sentence to run consecutive to his sentences in this case.

Bird testified in support of his departure motion, asking the court to grant him probation. Bird testified that just before he committed the Taco John's and Dillon's offenses, his fiancée had experienced “graphic” back-to-back miscarriages, which caused him significant stress. Consequently, Bird claimed he “wasn't working with a rational mind” when he committed the crimes. Bird concluded he does not deal well with tragedy, and he stressed that he is not a “violent, personal crime offender that notoriously hurts, preys on people.”

Consistent with this message, Bird testified he committed the two robberies reflected in his criminal history with [n]o weapon, no force, [and] no threat.” He further explained that he committed the prior robberies within 24 hours of each other and in the 2–week period preceding the robberies his father died and he lost his 6–month–old daughter to Sudden Infant Death Syndrome. Bird also characterized a prior conviction for residential burglary as a nonviolent crime that occurred when he entered a friend's house to reclaim property he thought was his.

Bird testified he did not begin using drugs until he was age 23, about the time his mother died, and that he was clean for 6 years until the deaths of his father and infant daughter. Bird stated he never sold drugs and the cocaine found in his home was residue from an empty baggie. Bird expressed his willingness to complete a recovery program and indicated he had job opportunities awaiting him and a support network of family and churches.

Before imposing sentence, the district court characterized Bird's life as “a Nashville source of lyric for music,” and described Bird's thefts as “impulse type crimes” unlikely to result in large economic gain. The court noted the lack of any apparent logic to Bird's high-risk, low-reward crimes, and further pointed out that the thefts at both Taco John's and Dillon's resulted in only brief physical contact with the victims and limited monetary and property damage.

Ultimately, the district court denied Bird's probation request but concluded substantial and compelling reasons justified a departure from the sentencing guidelines for Bird's conviction for cocaine possession. The court departed to a 24–month sentence from the guidelines range of 37 to 42 months and, in doing so, relied on “the nature of the crime, the nature of the harm and safety to the public in the future, the issue[ ] of non-injury and [Bird's] acceptance of responsibility.” But the district court refused to depart from the sentence on Bird's remaining convictions and ran the sentences for those convictions concurrent with his cocaine possession sentence.

The State appealed the district court's departure, making a two-pronged argument: (1) The departure reasons were unsupported by substantial competent evidence; and (2) the departure reasons were not substantial and compelling as a matter of law. Specifically, the State contended the district court improperly relied upon reasons related only to the robbery and theft convictions but not to the cocaine possession conviction for which the departure was granted.

Substantially agreeing with the State, the Court of Appeals panel concluded “mitigating factors that appear to have been related to crimes other than the crime of conviction may not be considered ‘substantial and compelling reasons' to depart [from] the guidelines.” State v. Bird, No. 103,855, 2010 WL 5185821, at *4 (Kan.App.2010) (unpublished decision). Apparently based on this rationale, the panel rejected the district court's consideration of the nature of the harm, safety to the public, and the lack of injury as mitigating factors. The panel opined that these factors “seem rather strange factors for a possession offense.” 2010 WL 5185821, at *3. Further, the panel speculated that the district court was “confused regarding which of the crimes or cases was being sentenced when these factors were stated.” 2010 WL 5185821, at *3.

The panel next rejected the remaining two mitigating factors found by the district court—nature of the crime and acceptance of responsibility—concluding these factors were inconsistent with the principles underlying the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq.Bird, 2010 WL 5185821, at *3–4. Accordingly, the panel vacated the departure sentence and remanded the case to the district court, directing it to impose a presumptive guidelines sentence or make additional findings warranting a departure. 2010 WL 5185821, at *4.

We granted Bird's petition for review under K.S.A. 20–3018(b), obtaining jurisdiction under K.S.A. 60–2101(b).

Two of the Factors the District Court Relied upon to Depart Were Supported by Substantial Competent Evidence and Provided Substantial and Compelling Reasons to Depart.

On review, Bird contends the panel erred in concluding the mitigating factors cited by the district court did not relate to the crime of conviction. Further, Bird contends the panel erred in concluding as a matter of law that two of the factors were inconsistent with the guidelines.

Appellate Review of Departure Decisions

A sentencing court is required to “impose the presumptive sentence provided by the sentencing guidelines ... unless the judge finds substantial and compelling reasons to impose a departure.” K.S.A. 21–4716(a). “To be substantial the reason must be real, not imagined, and of substance, not ephemeral.” State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008). A reason is “compelling” when it “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.” 285 Kan. at 724, 176 P.3d 160.

Although K.S.A. 21–4716(c) contains a list of potential departure factors, the list is nonexclusive, and a sentencing court can rely on nonstatutory factors to depart as long as the factors are consistent with the principles underlying the KSGA. See 285 Kan. at 725, 176 P.3d 160. Regardless of whether the district court cites statutory factors, nonstatutory factors, or a combination of both, [r]easons which may in one case justify departure may not in all cases justify a departure.’ State v. McKay, 271 Kan. 725, 730, 26 P.3d 58 (2001) (quoting State v. Grady, 258 Kan. 72, 83, 900 P.2d 227 [1995] ).

Our standard of review for departure decisions depends on the issue...

To continue reading

Request your trial
38 cases
  • State v. Reed
    • United States
    • Kansas Supreme Court
    • June 19, 2015
    ...first-degree murder. This court's standard of review for departure decisions depends on the precise issue presented. State v. Bird, 298 Kan. 393, 397, 312 P.3d 1265 (2013).“When we consider whether the record supports an articulated reason for departing, we review for substantial competent ......
  • White v. State
    • United States
    • Kansas Supreme Court
    • July 6, 2018
    ...person could accept to support a conclusion.’ " State v. Talkington , 301 Kan. 453, 461, 345 P.3d 258 (2015) (quoting State v. Bird , 298 Kan. 393, 399, 312 P.3d 1265 [2013] ). We do not reweigh evidence, make credibility determinations, or resolve conflicts in evidence; we give great defer......
  • State v. Armstrong
    • United States
    • Kansas Supreme Court
    • May 23, 2014
    ...the conversation was unrelated to Armstrong's case. This finding was supported by substantial competent evidence. See State v. Bird, 298 Kan. 393, 399, 312 P.3d 1265 (2013) (“Substantial competent evidence is legal and relevant evidence a reasonable person could accept to support a conclusi......
  • State v. Longoria
    • United States
    • Kansas Supreme Court
    • March 6, 2015
    ...at 550, 256 P.3d 801 (abuse of discretion can occur if trial court bases its decision on unsupported facts); see also State v. Bird, 298 Kan. 393, 399, 312 P.3d 1265 (2013) ( “Substantial competent evidence is legal and relevant evidence a reasonable person could accept to support a conclus......
  • Request a trial to view additional results
2 books & journal articles
  • Kansas Sentencing Guidelines
    • United States
    • Kansas Bar Association KBA Bar Journal No. 86-7, August 2017
    • Invalid date
    ...factors collectively constitute a substantial and compelling basis for departure. Id. at 694. [37] See State v. Bird, 298 Kan. 393, 399, 312 P.3d 1265 (2013). See also State v. Teurer, 50 Kan. App.2d 1203, 1219-20, 337 P.3d 725 (2014) (KSGA focused on "[m]aking the punishment proportional t......
  • Kansas Sentencing Guidelines
    • United States
    • Kansas Bar Association KBA Bar Journal No. 86-7, August 2017
    • Invalid date
    ...factors collectively constitute a substantial and compelling basis for departure. Id. at 694. [37] See State v. Bird, 298 Kan. 393, 399, 312 P.3d 1265 (2013). See also State v. Theurer, 50 Kan. App. 2d 1203, 1219-20, 337 P.3d 725 (2014) (KSGA focused on "[m]aking the punishment proportional......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT