State v. Meyer, 77828

• Decision Date: 05 June 1998
• Docket Number: No. 77828,77828
• Citation: 25 Kan.App.2d 195,960 P.2d 261
• Parties: STATE of Kansas, Appellee, v. Timothy MEYER, Appellant.
• Court: Kansas Court of Appeals

Page 261

960 P.2d 261

25 Kan.App.2d 195

STATE of Kansas, Appellee, v. Timothy MEYER, Appellant.

No. 77828.

Court of Appeals of Kansas.

June 5, 1998.

Review Denied Sept. 14, 1998.

Syllabus by the Court

The fact that a defendant is found not to be amenable to probation supervision is, if supported by the evidence, a substantial and compelling reason for an upward departure, either dispositional or durational.

Ryan Kipling Elliot, Assistant Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Bret Lawson, Assistant County Attorney, and Carla J. Stovall, Attorney General, for appellee.

Before LEWIS, P.J., RULON, J., and JACK A. MURPHY, District Judge, Assigned.

LEWIS, Presiding Judge:

Defendant Timothy Meyer broke into several churches in Coffeyville and committed theft and vandalism. He was ultimately arrested for the crimes and pled guilty to three counts of burglary under a plea agreement. The crimes with which defendant was charged were in grid box C-VII, which called for presumptive probation 29-27-25 months. K.S.A.1997 Supp. 21-4704. The trial court, however, departed upwardly and sentenced defendant to a controlling term of 27 months in the custody of the Secretary of Corrections. Defendant appeals.

The basis of defendant's appeal is that the trial court erred in departing upward. We do not agree.

Our standard of review requires us to determine whether the reasons given by the trial court to support the departure were substantial and compelling and are supported by substantial competent evidence. State v. Salcido-Corral, 262 Kan. 392, 411, 940 P.2d 11 (1997).

Apparently, the trial court gave written notice to both parties of its intention to impose a departure sentence. This written notice, we assume, set forth the reasons to support the departure. There appears to be some question as to whether the reasons given originally to the parties were the same reasons ultimately used. However, we cannot determine that issue. The letter from the trial court is not a part of the record on appeal. In the absence of that letter, we can only assume that the reasons given by the trial court prior to and at the time of sentencing were the same. " 'An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, an appellate court presumes that the action of the trial court was proper.' " State v. Richardson, 256 Kan. 69, 84, 883 P.2d 1107 (1994).

There are reasons given for departure in the trial court's journal entry, and there were reasons given by the trial court in a written notice to the parties. However, it is established law in Kansas that "[t]he court's comments at the time of sentencing govern as to the reasons for departure." State v. Gideon, 257 Kan. 591, 623, 894 P.2d 850 (1995). As a result, the only comments which we are interested in examining are those set forth in the transcript of the sentencing.

At the time of sentencing, the trial court set forth its findings of fact to support its intent to depart as follows:

"Now, as I stated to you in my letter, it was my intention to depart from the presumption of probation and to do that the Court must make findings of facts on the record to support such departure. The findings of fact that I make are as follows:

"No. 1. This defendant, uh, we tried--we inquired about placement by the Labette County Conservation Camp. And, uh, Ms. Bell, was that you that inquired about that for me?

"MS. BELL: That is correct, Your Honor. He was not accepted due to medical reasons.

"THE COURT: All right. And, uh, okay, and you sent me a copy of the letter that the camp administrator had sent to you. That's part of the file here--

"MS. BELL: That's correct.

"THE COURT:--indicating that that was, uh, a condition that would keep him out of the camp; that's finding of fact number one. We've inquired of Labette County Conservation Camp; they will not accept him for medical reasons.

"Finding of fact No. 2 is that this young man at the present time--excuse me--has six burglaries, uh, committed six burglaries or was charged with six burglaries in, uh, the present case; three of which he now stands convicted of and nine others in Labette County, and would not appear to be amenable to probation supervision, but beyond that the Court notes and makes a finding of fact that only for criminal history purposes only two, I believe, of those burglaries factor into the sentence that is imposed today as they are all nonperson felonies. He's--he's at 7-C; one person and one nonperson felonies. Therefore, uh,--where's the--where's the person felony, Ms. Cash?"

We conclude that on the whole, the reasons given by the trial court are substantial and compelling reasons and support his departure sentence. The fact that defendant was not admitted to Labette is not a departure factor, but his nonamenability to probation is.

"The final analysis is not whether any departure factor, in isolation, can be a substantial and compelling reason for departure but whether, as a whole, the factors are substantial and compelling reasons for imposing a departure sentence in this case 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).

We hold the trial court's finding that defendant was not amenable to probation supervision was a substantial and compelling reason to justify the departure sentence and was supported by substantial competent evidence. In this regard, we follow State v. Trimble, 21 Kan.App.2d 32, Syl. pp 5, 6, 894 P.2d 920 (1995).

Defendant's record is incredible. In addition to defendant's three convictions from Montgomery County, he has nine additional burglary convictions from Labette County. In State v. Hawes, 22 Kan.App.2d 837, 840, 923 P.2d 1064 (1996), we said that "defendant's excessive nonperson felonies show only that defendant is a persistent criminal." We do not believe the statement in Hawes went far enough as applied to defendant here. Not only do the excessive convictions show that defendant is a persistent criminal, it also shows he is an unremorseful criminal who has not been rehabilitated and from whom society requires protection. We cannot believe the legislature intended to make it impossible for trial courts to put career criminals with 9 to 12 felony convictions on perpetual probation. To release the defendant in this case on probation would have similar results to having the fox guard the henhouse. We conclude...