State v. Carr, 85,238.

CourtUnited States State Supreme Court of Kansas
Citation53 P.3d 843,274 Kan. 442
Docket NumberNo. 85,238.,85,238.
PartiesSTATE OF KANSAS, Appellee, v. TIMOTHY A. CARR, Appellant.
Decision Date13 September 2002

274 Kan. 442
53 P.3d 843

STATE OF KANSAS, Appellee,
v.
TIMOTHY A. CARR, Appellant

No. 85,238.

Supreme Court of Kansas.

Opinion filed September 13, 2002.


274 Kan. 443
Cory D. Riddle, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

LOCKETT, J.:

Defendant Timothy A. Carr claims (1) the district court's imposition of a dispositional departure—incarceration rather than presumptive probation—violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed.2d 435, 120 S. Ct. 2348 (2000), and (2) the district court's reasons for departing were not substantial and compelling. These arguments were rejected by the Court of Appeals. State v. Carr, 29 Kan. App. 2d 501, 28 P.3d 436 (2001). We granted Carr's petition for review pursuant to K.S.A. 20-3018(b). The State did not cross-petition for review of the Court of Appeals' finding that the district court failed to provide adequate notice of its intent to depart; thus, that issue is not before this court for review. We agree with the Court of Appeals' conclusion that (1) Apprendi does not apply to a dispositional departure imposed under K.S.A. 2001 Supp. 21-4716 and (2) the district court's reasons for departing were substantial and compelling.

Carr was arrested on November 23, 1999, 26 days after his release from the Youth Center in Topeka, where he had served a sentence arising from a juvenile adjudication on drug charges. Wichita police officers pulled over Carr after observing him driving without a vehicle license tag. When Carr admitted to driving on a suspended license, he was placed in custody, and the car was impounded and inventoried. A stolen revolver was found in the vehicle's passenger compartment.

Carr was charged with criminal possession of a firearm pursuant to K.S.A. 2001 Supp. 21-4204(a)(4). He entered into a plea agreement in which the State agreed to recommend a mid-range sentence in the applicable grid box under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., no fine, and probation under the guidelines presumption. At sentencing on April

274 Kan. 444
13, 2000, the district court noted that Carr had a criminal history score of E. Criminal possession of a firearm in violation of K.S.A. 2001 Supp. 21-4204(a)(4) is a severity level 8 offense. K.S.A. 2001 Supp. 21-4204(c). Neither Carr nor the State disputed the criminal history score or the offense severity level

After soliciting comments from Carr, Carr's attorney, and the prosecutor, the district judge immediately and without notice exercised the discretion granted him under the KSGA, refused to grant Carr probation, and imposed a prison sentence of 15 months. The district judge stated that Carr was "not amenable to rehabilitation," observing that: (1) the firearms offense occurred shortly after Carr's release from the Youth Center, (2) Carr had failed at juvenile probation, and (3) Carr had a lengthy criminal history of drug possession. The district judge authorized placement at Labette Correctional Conservation Camp (Labette). The parties made no objections. Carr appealed. The record is not clear as to whether Carr was actually placed at Labette. Carr's brief on appeal suggests he was not.

Before the Court of Appeals, Carr sought reversal of his dispositional departure sentence. Carr claimed that the dispositional departure by the district court violated his constitutional rights under Apprendi; that the district court gave inadequate notice of its intent to depart; and that the district court's reasons for departure were not substantial and compelling.

The Court of Appeals (1) held that Apprendi did not apply to an upward dispositional departure, (2) found that the reasons for departure were substantial and compelling, and (3) vacated Carr's sentence and remanded the case for resentencing on the basis that the district court did not provide adequate notice of its intention to depart on its own volition under K.S.A. 21-4718(b).

The primary issue before us is whether the United States Supreme Court intended Apprendi to apply to upward dispositional departures, i.e., imposing prison rather than granting probation or parole, under the KSGA. Because we are discussing a dispositional departure under the KSGA, the fact that Carr's conviction resulted from a guilty plea rather than a jury verdict does not change our analysis. See State v. Cody, 272 Kan. 564, 35 P.3d 800 (2001), and

274 Kan. 445
State v. Kneil, 272 Kan. 567, 35 P.3d 797 (2001). Carr's challenge involves a question of law, over which we have unlimited review. See State v. Crow, 266 Kan. 690, Syl. ¶ 2, 974 P.2d 100 (1999)

To support his assertion that dispositional departures and durational departures are similarly affected by Apprendi, Carr cites State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). In Gould, this court declared the Kansas scheme for imposing upward durational departure sentences void under Apprendi. 271 Kan. 394, Syl. ¶¶ 2, 3, and 6. Carr contends that the rationale behind the holding in Gould, though couched in the context of an upward durational departure of a sentence, included dispositional as well as durational departures.

The Court of Appeals, recognizing that although Gould had concluded that the upward durational departure provision "of K.S.A. 2000 Supp. 21-4716 was unconstitutional on its face," stated:

"[I]t is difficult to see how a dispositional departure such as Carr's fits under the rationale of Apprendi. Pending contrary explicit guidance from the Supreme Court, we find Gould inapplicable to upward dispositional departures. It does not constitute an alternative basis for vacating the sentence in this case. Indeed, we view the Supreme Court's post-Gould decision in State v. McKay, 271 Kan. 725, 26 P.3d 58 (2001), as implicitly supportive of our reading of Gould. In McKay, the Supreme Court reached the merits of an upward dispositional departure sentence rather than reversing it immediately as violative of the Sixth and Fourteenth Amendments to the United States Constitution.
"Furthermore, our decision on this issue appears philosophically and analytically consistent with that in State v. Conley, 270 Kan. 18, 30-35, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), which held that a district judge's decision to impose a hard 40 sentence did not run afoul of Apprendi. In Conley, the hard 40 sentence potentially altered the mode of service of the defendant's life sentence, delaying initial parole eligibility from 25 years to 40 years. Here the dispositional departure also merely altered the mode of service of Carr's sentence; it did not extend its length. Gould did not affect the district judge's power to alter the mode of service of the offender's sentence." 29 Kan. App.2d at 505.

The Court of Appeals looked to State v. McKay, 271 Kan. 725, 26 P.3d 58 (2001), for guidance. In McKay, the district court imposed a prison term rather than the statutory presumptive grant of probation. The Court of Appeals reversed the district court, concluding that the particular fact presented—that McKay had absconded for 2 months during the pendency of his case—did not

274 Kan. 446
constitute a substantial and compelling reason to impose a dispositional departure. We granted the State's petition for review. We agreed with the Court of Appeals and vacated McKay's sentence. 271 Kan. at 731.

McKay was decided 1 year after Apprendi and only 2 months after our decision in Gould. Apprendi was neither briefed nor argued by counsel. The dispositional departure in McKay was vacated, not upheld. Thus, the issue of whether Apprendi applied to dispositional departures was not before us.

In deciding that Apprendi did not apply to upward dispositional departures, the Court of Appeals also relied upon this court's decision in State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). In Conley, we found that the imposition of a hard 40 sentence based on a fact not found by the jury does not increase a defendant's maximum sentence of life imprisonment imposed under K.S.A. 21-4706(c). The hard 40 limited the lower end of Conley's life sentence. Thus, Conley's hard 40 sentence violated neither the Due Process Clause of the United States Constitution nor his right to trial by jury under the Sixth Amendment to the United States Constitution or § 5 of the Kansas Constitution Bill of Rights. Conley, 270 Kan. 18, Syl. ¶ 3.

Our reasoning in Conley was based on McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed.2d 67, 106 S. Ct. 2411 (1986). McMillan held that facts that do not increase a defendant's punishment beyond that authorized by statute need not be proven to a jury beyond a reasonable doubt. Because the hard 40 did not increase the length of Conley's life sentence and because the Apprendi Court had refused to overturn McMillan, we concluded that Conley's 40-year mandatory minimum sentence did not violate Apprendi. Conley, 270 Kan. at 32-35. Thus, the reasoning of Conley is also not dispositive of the issue at hand.

The key question is whether Apprendi applies to dispositional departures. Apprendi considered the situation of a New Jersey defendant who pled guilty to possession of a firearm. The trial court, under a separate "hate crime" statute, found by a preponderance of the evidence that Apprendi committed the crime with a purpose to intimidate the victim because of race. The trial judge, based on

274 Kan. 447
this finding, imposed a sentence of 12 years' imprisonment. The departure extended Apprendi's sentence beyond the 5 to 10 years authorized by the firearm statute. Apprendi appealed.

The Apprendi Court opened its analysis of...

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