State v. McKay

• Decision Date: 13 July 2001
• Docket Number: No. 83,611.,83,611.
• Citation: 271 Kan. 725,26 P.3d 58
• Parties: STATE OF KANSAS, Appellee, v. JOHNNIE MCKAY, JR., Appellant.
• Court: Kansas Supreme Court

271 Kan. 725

26 P.3d 58

STATE OF KANSAS, Appellee, v. JOHNNIE MCKAY, JR., Appellant.

No. 83,611.

Supreme Court of Kansas.

Opinion filed July 13, 2001.

Mary Curtis, assistant appellate defender, argued the cause, and Brent Getty, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were on the brief for appellant.

Lesley A. McFadden, assistant district attorney, argued the cause, and Elizabeth Reimer, assistant district attorney, Nola Foulston, district attorney, and Carla Stovall, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

DAVIS, J.:

The State of Kansas petitions this court for review of a published Court of Appeals' opinion finding the fact that the defendant Johnnie McKay, Jr., absconded from the court's jurisdiction for 2 months was not a substantial and compelling reason to depart from the presumptive sentence of probation. See State v. McKay, 28 Kan. App.2d 185, 12 P.3d 924 (2000).

The facts of this case are as follows: The defendant entered into a plea agreement with the State of Kansas wherein he agreed to plead guilty to five counts of forgery for presenting improper time cards to a temporary agency where he was employed. The State agreed to recommend that the mid-range sentence on the appropriate grid box under the Kansas Sentencing Guidelines be imposed, that no fine be imposed, and that the court follow the presumptive disposition, which was probation due to the defendant's criminal history score.

Notwithstanding this plea agreement, the defendant absconded for 2 months, missing his original date to enter a guilty plea. The defendant's attorney explained that the defendant had gone out of town for a funeral and did not have the funds to return. The defendant also explained that he did not purposely skip court but had forgotten the court date after he left. Prior to sentencing, the defendant filed a motion for bond reduction. The trial judge denied the motion because the defendant had absconded and cautioned the defendant:

"I also at this time will give notice to [defendant's attorney] the fact that [defendant] was gone for two months shows his inability to or at least is some indication of his inability to be rehabilitated by probation, and that that will be a factor I will be considering at the time of sentencing in this case."

At sentencing, the State recommended probation as the appropriate disposition. However, the trial judge stated: "I'll find Mr. McKay's attitude toward the seriousness of this offense, his intentional missing of a court date indicates he's not a candidate for probation. He's not subject to rehabilitation at this point in time." The trial court, therefore, sentenced the defendant to a controlling sentence of 13 months.

The defendant appealed this departure to the Court of Appeals. The Court of Appeals reversed, reasoning that while absconding could be considered in certain situations to be a substantial and compelling reason for departure, under the totality of the circumstances in the case, that sole fact was not sufficient. The Court of Appeals stated:

"McKay has no prior felony convictions. His crimes of conviction were for nonviolent misdemeanors. He has never been subject to supervised felony probation or placement in community corrections. McKay's absconding, although a serious transgression, was of limited duration and did not deter the State from proceeding with a recommendation for probation. McKay served 45 days in confinement after he was returned to custody. He has a pregnant wife and 3 children who depend on him for support. He apparently has a credible work history." 28 Kan. App.2d at 188.

The Court of Appeals thus held that the totality of the facts did not support the trial court's decision.

The State petitioned this court for review of the Court of Appeals' decision, and we granted review.

The question in this case is whether the fact that the defendant absconded for a period of 2 months between entry of the plea and sentencing is a substantial and compelling reason for the trial court to depart from the presumptive sentence of probation. This court's review of dispositional departure sentences is limited to whether the sentencing court's findings of fact and reasons justifying a departure: (1) are supported by the evidence in the record and (2) constitute substantial and compelling reasons for departure. K.S.A. 21-4721(d). There is no question in this case that the trial court's finding that the defendant absconded for 2 months is supported by the record. The only question is whether that fact, standing alone, constitutes a substantial and compelling reason for departure.

Whether the factors relied upon by the court constitute substantial and compelling reasons for departure is a question of law. State v. Jackson, 262 Kan. 119, 936 P.2d 761 (1997). The term "substantial" refers to something that is real, not imagined; something with substance and not ephemeral. The term "compelling" implies that the court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary. State v. Eisele, 262 Kan. 80, Syl. ¶ 2, 936 P.2d 742 (1997). The question is whether the departure factors, as a whole, are substantial and compelling reasons for imposing a departure sentence in light of the offense of conviction, the defendant's criminal history, and the purposes of the sentencing guidelines. State v. Grady, 258 Kan. 72, 89, 900 P.2d 227 (1995).

The Court of Appeals in the case at hand looked at the totality of the circumstances, including the offense of conviction and the defendant's criminal history in determining that the departure factor relied upon was not substantial and compelling. The State contends that the Court of Appeals erred by reweighing the facts and substituting its judgment for that of the trial court. The State argues that the Court of Appeals should have given deference to the trial court's determination.

However, we must stress that an appellate court reviews the question of whether the departure factors are substantial and compelling as a question of law. State v. Jackson, 262 Kan. at 134. In State v. Favela, 259 Kan. 215, 232, 911 P.2d 792 (1995), the defendant raised an argument similar to the State's argument in the instant case, contending that

"if an appellate court should review the sentencing court's reasons for departing to see if they are substantial and compelling as a matter of law, this would violate the policy that the finder of fact is in the best position to rule upon the credibility, sufficiency, and weight of the evidence."

We disagreed, stating that the issue should be reviewed de novo with no deference given to the sentencing court. 259 Kan. at 233. We have stated that the analysis of this question is twofold: First, is a particular reason given by the sentencing court a valid departure factor and, second, are the reasons, as a whole, substantial and compelling reasons for departure in a given case? Grady, 258 Kan. at 83. In contrast to the State's assertion that an appellate court should not reweigh the evidence, we stated in Grady that when determining whether reasons given are substantial and compelling as a question of law,

"[r]easons which may in one case justify departure may not in all cases justify a departure. Rather, the inquiry must evaluate the crime and the departure factors as a whole to determine whether departure in a particular case is justified. It is a question of what weight to give each reason stated and what weight to give the reasons as a whole in light of the offense of conviction and the defendant's criminal history. The inquiry also considers the purposes and principles of the KSGA." 258 Kan. at 83.

Thus, contrary to the State's argument, the Court of Appeals was not bound to give deference to the sentencing judge's determination that the defendant's absconding was a substantial and compelling reason for departure. The question remains, however, as to whether the Court of Appeals was correct in its determination of the issue of law. The essential question, therefore, is whether the sole fact that the defendant absconded for a period of 2 months is a substantial and compelling reason for departure as a matter of law.

K.S.A. 1999 Supp. 21-4716(b)(2) contains a nonexclusive...