State v. Boswell
| Decision Date | 10 December 2021 |
| Docket Number | No. 123,111,123,111 |
| Parties | STATE of Kansas, Appellee, v. Boston Cole BOSWELL, Appellant. |
| Court | Kansas Supreme Court |
Kasper Schirer, of Kansas Appellate Defender Office, was on the briefs for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.
After pleading no contest to premeditated first-degree murder, Boston Cole Boswell faced a presumptive sentence of life imprisonment with no chance of parole for 50 years, commonly called a hard 50 sentence. He asked the district court to depart from that sentence and instead allow him a chance at parole after 25 years. The district court denied that request, and Boswell now appeals that decision. Additionally, Boswell contends that the district court's order imposing lifetime postrelease supervision and electronic monitoring as a condition of parole each render his sentence illegal.
Boswell has failed to establish that the district court's ruling on the departure motion was founded on an error of fact or law or that its ruling was objectively unreasonable. We therefore hold that the district court did not abuse its discretion in denying the departure motion, and we affirm Boswell's hard 50 sentence. Finally, the State concedes that the district court lacked authority to impose postrelease supervision or electronic monitoring as a condition of parole, so we vacate those illegal components of his sentence.
The facts are not in dispute. Boswell stayed the night at a Dodge City motel with S.R.W., the victim, in March 2018. After S.R.W. fell asleep, Boswell took S.R.W.'s gun from her purse and shot her in the head. He would later tell officers that he had first contemplated suicide but then shot S.R.W. after voices in his head told him to do so. He walked home after the shooting and went to sleep. Boswell went to work at a feedlot the next morning and told a coworker what had happened. The police were contacted, and Boswell confessed to shooting S.R.W.
The State charged Boswell with one count of premeditated first-degree murder and one count of theft of a firearm. The district court granted Boswell's request for a mental examination to determine whether he could pursue a mental-disease-or-defect defense at trial. That defense requires a defendant to show that, as a result of mental disease or defect, he or she lacked the culpable mental state required as an element of the crime charged. See K.S.A. 2020 Supp. 21-5209. The requisite mental state for premeditated first-degree murder is that the person acted intentionally. See K.S.A. 2020 Supp. 21-5402(a)(1).
The clinical staff at Larned State Hospital (Larned) found that Boswell was "clearly able to form intent, implement decisions, and engage in goal-directed behaviors during the time of the alleged offense," so "[h]e possessed the mental state as required as an element of the offenses charged." The staff also found that Boswell was "feigning symptoms of psychosis
." Even so, the staff did diagnose Boswell with antisocial personality disorder based on a "continued pattern of unlawful behavior, failure to conform to social norms, impulsivity, reckless disregard for the safety of others, lack of remorse, and irresponsibility." The staff also noted that he exhibited features of borderline personality disorder, including "affective instability, inappropriate, intense anger, recurrent suicidal behavior, and markedly unstable self-image."
Boswell and the State entered into a plea agreement before trial. Boswell agreed to plead no contest to first-degree murder. Boswell later claimed that he entered that plea so S.R.W.'s family could avoid further emotional turmoil at trial. In exchange for Boswell's plea, the State agreed to dismiss the firearm-theft charge and two other pending cases unrelated to this appeal. The State also agreed to remain silent at sentencing. The court accepted Boswell's no contest plea and set the case for sentencing.
Boswell moved to depart from his presumptive hard 50 sentence for premeditated first-degree murder. See K.S.A. 2020 Supp. 21-6620(c)(1)(A) and 21-6623. A district court can depart from a hard 50 sentence in a premeditated first-degree murder case only if the court finds "substantial and compelling reasons" to do so. K.S.A. 2020 Supp. 21-6620(c)(1)(A). If the district court makes that finding, it may instead impose a sentence of life imprisonment with no chance of parole for 25 years, a hard 25 sentence. See K.S.A. 2020 Supp. 21-6620(c)(2)(A).
The district court took up Boswell's motion at sentencing. Boswell argued that there were substantial and compelling reasons for a departure based on K.S.A. 2020 Supp. 21-6625. That statute provides a nonexclusive list of eight mitigating circumstances a court may consider when deciding whether to depart from a presumptive sentence. See K.S.A. 2020 Supp. 21-6625(a)(1)-(8). Boswell's attorney argued that three of the statutory mitigating circumstances applied. First, under K.S.A. 2020 Supp. 21-6625(a)(1), Boswell claimed he had no significant history of prior criminal activity, as evidenced by his criminal-history score of I, the lowest classification. Second, under K.S.A. 2020 Supp. 21-6625(a)(2), Boswell argued that he committed the crime while under the influence of extreme mental or emotional disturbances. In support of this mitigating circumstance, Boswell relied on his report of hearing voices at the time of the murder and his antisocial personality diagnosis. Third, under K.S.A. 2020 Supp. 21-6625(a)(7), Boswell argued that the court should consider his young age because Boswell was only 18 when he committed the murder. His attorney confirmed that none of the other statutory mitigating circumstances under K.S.A. 2020 Supp. 21-6625 applied.
The district court addressed each mitigating circumstance before ruling on the motion. It found that Boswell's age was "concerning" but concluded this factor alone did not establish a substantial and compelling basis for departure:
The district court also acknowledged Boswell's lack of criminal history but again concluded that this fact alone was not a substantial and compelling basis for departure given the significance of the crime:
Finally, the district court addressed Boswell's claim that he committed the crime while under the influence of extreme mental or emotional disturbances. It acknowledged that Boswell had mental-health issues but concluded that they did not provide a substantial and compelling reason to depart:
The district court concluded that these mitigating circumstances did not rise to a substantial and compelling reason for departure individually or in the aggregate, i.e., cumulatively, and denied Boswell's motion. The district court imposed a hard 50 life sentence and ordered that Boswell be subject to lifetime postrelease supervision should he ever be paroled. Also, the journal entry of judgment subjected Boswell to lifetime electronic monitoring as a condition of parole, even though that condition was not addressed or pronounced from the bench at sentencing.
Boswell appealed directly to our court. Jurisdiction is proper under K.S.A. 2020 Supp. 22-3601(b)(3) ().
Boswell raises two issues on appeal. First, he contends that the district court abused its discretion by denying his motion to depart to a hard 25 sentence. Second, he argues that the district court committed legal error by imposing lifetime postrelease supervision and electronic monitoring as a parole condition, rendering those components of his sentence illegal. We conclude that the district court's decision to deny Boswell's departure motion was not founded on factual or legal error or objectively unreasonable, so we affirm his hard 50 sentence. However, the district court lacked authority to impose lifetime postrelease or electronic monitoring parole conditions, so we vacate that portion of the sentence.
As noted, the district court can depart from a hard 50 sentence in a premeditated first-degree murder case only if it finds "substantial and compelling reasons" to do so. K.S.A. 2020 Supp. 21-6620(c)(1)(A). "The term ‘substantial’ in the sentencing departure context means something that is real, not imagined, and of substance, not ephemeral." State v. Morley , ...
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