State v. Galloway

Docket Number124,178
Decision Date14 October 2022
Citation518 P.3d 399
Parties STATE of Kansas, Appellee, v. Crystal Dawn GALLOWAY, Appellant.
CourtKansas Supreme Court

Peter Maharry, of Kansas Appellate Defender Office, was on the brief for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.

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

For the second time, Crystal Dawn Galloway appeals sentences imposed after a jury convicted her of one count of premeditated first-degree murder, one count of arson, and one count of interference with law enforcement. In her first appeal, we vacated Galloway's hard 50 life sentence for premeditated murder after agreeing with Galloway's argument that the district court judge improperly refused to consider a lack of criminal history as a possible mitigating factor supporting a downward departure to a hard 25 life sentence. We remanded for resentencing. State v. Galloway , 311 Kan. 238, 252-54, 459 P.3d 195 (2020).

On remand, a different district court judge, after considering Galloway's criminal history and her other proffered mitigating factors, again imposed a hard 50 life sentence for premeditated murder. The judge then turned to Galloway's sentences for arson and interference with law enforcement even though we had not vacated those sentences in the first appeal. The judge reimposed the same terms of imprisonment for these convictions as those ordered at Galloway's first sentencing hearing. But he ran these sentences consecutive to each other and to the hard 50 life sentence even though the first judge had ordered that Galloway would serve these sentences concurrently with each other and with her life sentence. In this current appeal, Galloway claims the second judge erred in imposing these sentences, arguing:

1. The judge abused his discretion in imposing a hard 50 life sentence;
2. The judge lacked authority on remand to change Galloway's sentences for arson and interference with law enforcement from concurrent to consecutive sentences; and
3. The judge violated Galloway's due process rights by vindictively ordering consecutive sentences.

After considering the parties’ briefs, we hold the judge did not abuse his discretion by imposing a hard 50 life sentence. But the judge lacked statutory authority to change the concurrent nature of the sentences. Because of our holding on that statutory basis, we need not address Galloway's constitutional due process argument.

We thus affirm Galloway's sentence in part and vacate in part and remand for imposition of concurrent sentences.


Galloway's convictions arise from the murder of Robin Fought. Galloway's motive for killing Fought arose from the circumstances of her attempting to regain custody of her five children who were in the custody of the State of Kansas. Galloway worked under the supervision of a caseworker on a plan to reintegrate her children into her home. Fought reported to Galloway's caseworker his concerns that Galloway planned to kidnap her children and leave Kansas. He also reported Galloway was in contact with Dakota Cunningham, who Fought employed. Cunningham and Galloway had been in a relationship, and Galloway, who was pregnant at the time of Fought's murder, identified Cunningham as the father of the child she was carrying. But the reintegration plan prohibited any contact with Cunningham, and Fought's report consequently jeopardized Galloway's efforts to regain custody of her children.

Days after the report to Galloway's caseworker, Fought's partially burned body was found near a burning pickup truck. He had been stabbed multiple times, and a gas can with a partially burned paper wick sat on his body. Evidence led police to arrest Galloway and Cunningham, both of whom had fled to Oklahoma after the murder.

Police discovered text messages and pictures on Galloway's phone discussing plans to murder Fought. Police also recovered DNA evidence of Galloway's blood on the handle of the knife used to kill Fought, on the gas can placed on his body, and on the partially burned paper in the gas can.

After the jury convicted Galloway, she moved for a departure from the presumptive hard 50 life sentence. She argued her lack of any criminal history justified a departure sentence. She also pointed out that a 50-year sentence would exceed her actuarial life expectancy. A district court judge denied her motion. He concluded Galloway's lack of criminal history deserved no consideration. The judge imposed a hard 50 life sentence for premeditated first-degree murder and concurrent sentences of 13 months for arson and 9 months for interference with law enforcement.

In resolving her direct appeal, we rejected most of Galloway's claims of error. We did, however, find merit to her argument that the sentencing court erred when it refused to consider a statutorily enumerated mitigating factor, her lack of criminal history. We vacated the hard 50 sentence and remanded the case to the district court for resentencing. See Galloway , 311 Kan. at 252-54, 459 P.3d 195.

On remand, Galloway filed an amended motion for departure. She argued several new reasons justified a departure from the presumptive sentence: She lacked substantial capacity for judgment when the offense was committed because of physical or mental impairment

; she suffered from drug and alcohol addiction that contributed to her actions; she was in a state of extreme emotional distress at the time of the offense; she suffered physical, emotional, or sexual abuse as a child; and she had been directly exposed to domestic abuse, either as a victim or witnessing the actions where another is a victim. At the resentencing hearing, Galloway's counsel resurrected the argument that Galloway had no criminal record. Counsel also argued that Cunningham was the one who killed Fought and yet had received a sentence of only 13 and a half years for second-degree murder.

Galloway testified at the resentencing hearing. She explained she was about one and a half to two months pregnant at the time of the offenses. She said she had gestational diabetes

throughout her pregnancy that caused severe fatigue and vomiting. She also reported having blackouts that she recognized from her experiences in prior pregnancies to be related to low blood sugar. But she admitted she had no tests to verify that self-diagnosis. According to Galloway, these conditions impaired her judgment at the time of the offenses. She also reported experiencing stress because the State had removed her children from her custody and because she was working on her case plan to try to get her children back. She also admitted she was under the influence of marijuana at the time of Fought's murder, or at least she used marijuana shortly before the murder.

Galloway admitted to being at the crime scene but denied active participation. She said she did not stab the victim or burn his truck. She attributed to Cunningham the text messages that the State argued proved premeditation. She asserted that Cunningham possessed her phone on the day before and the day of the murder. She denied helping to plan the crime.

According to Galloway, she was at the scene because Cunningham called her and asked her to pick him up. When she arrived, Cunningham and Fought were arguing. Cunningham pulled a knife, and Galloway tried to get the knife from him. In the process, she cut her finger. Cunningham then stabbed Fought. Galloway said she did not call the police because Cunningham had her phone. She testified Cunningham forced her into fleeing and she complied out of fear for her life. Galloway denied she suffered physical or domestic abuse or violence during her relationship with Cunningham, but said he sometimes raised his voice and told her she had to do what he said. She said she tried to convince Cunningham they should turn themselves in to authorities.

The State rebutted Galloway's arguments by pointing out the State removed Galloway's children from her custody about seven months before Fought's death. The State also emphasized evidence tying Galloway to the crime that she had not explained away, pointing to her DNA found on the gas can and on the paper wick improvised from a phonebook page. And the State impeached aspects of Galloway's testimony through cross-examination. For example, after testifying Cunningham possessed her phone on the day of Fought's murder, Galloway admitted she had her phone before arriving at the crime scene.

A different district court judge than the one who first sentenced Galloway, addressed each of Galloway's arguments in support of her motion for departure from the presumptive hard 50 life sentence. The judge acknowledged that each argument "if proven, by substantial and compelling evidence, could amount to mitigating circumstances." But the judge determined Galloway had failed to establish that any of these factors presented a substantial and compelling reason to depart from a presumptive sentence.

The district court judge imposed a hard 50 life sentence for premeditated murder, a consecutive 13-month sentence for arson, and a consecutive 9-month sentence for interference with law enforcement. Making the sentences consecutive added 22 months to Galloway's sentence as compared to her original sentence under which the three sentences were concurrent. Galloway timely appealed.

This court has jurisdiction under K.S.A. 2021 Supp. 22-3601(b)(3) (vesting appellate jurisdiction over cases in which maximum sentence of life imprisonment imposed).

1. No error in denying departure

Under Kansas statutes, a district court sentencing a defendant convicted of first-degree premeditated murder shall sentence a defendant to a hard 50 life sentence unless the sentencing judge finds substantial and compelling reasons support departing to a hard 25 life sentence. See K.S.A. 2014 Supp. 21-6620(c) ; K.S.A. 2014 Supp. 21-6623.

K.S.A. 2021 Supp. 21-6625(a)...

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