State v. Moore

• Decision Date: 13 May 2022
• Docket Number: 123,984
• Citation: 509 P.3d 596 (Table)
• Parties: STATE of Kansas, Appellee, v. Robert Eugene MOORE, Appellant.
• Court: Kansas Court of Appeals

509 P.3d 596 (Table)

STATE of Kansas, Appellee,

v.Robert Eugene MOORE, Appellant.

No. 123,984

Court of Appeals of Kansas.

Opinion filed May 13, 2022.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Daniel G. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Bruns, P.J., Cline, J., and James L. Burgess, S.J.

MEMORANDUM OPINION

Per Curiam:

Robert Eugene Moore appeals the decision of the Johnson County District Court to impose an upward durational departure after finding substantial and compelling reasons existed to grant the departure. This is Moore's third appeal of his departure sentence. In his first appeal, another panel of this court vacated Moore's sentence and remanded because the district court failed to make a finding on the record of substantial and compelling reasons to depart. On remand, the district court resentenced Moore. He appealed, but there was a discrepancy in the record causing both parties to agree to another sentencing hearing. On remand, the district court properly considered the nonstatutory factor found by the jury and determined substantial and compelling reasons existed to depart based on the trial record. We therefore affirm his sentence.

Moore's prior appeals

A panel of the Court of Appeals summarized the facts of the convictions in Moore's first appeal. State v. Moore , No. 109,553, 2015 WL 1310046, at *1 (Kan. App. 2015) (unpublished opinion). Moore does not challenge the sufficiency of the evidence supporting the aggravated factor in granting his departure, so reiteration of the facts is not essential to the analysis of his issue. But to put it concisely, a jury convicted Moore of nine crimes in July 2012 for his acts over four hours one December 2010 evening. After convicting Moore, the jury considered whether the State proved a nonstatutory aggravating factor justifying an upward departure of his presumptive sentences.

In support of the aggravating factor—"future dangerousness"—the State argued Moore had performed poorly on parole. The jury found, beyond a reasonable doubt, the evidence supported the aggravating factor, and at sentencing the district court granted the upward durational departure. The district court imposed a controlling term of 432 months’ imprisonment. Moore appealed. As for the upward departure, the panel determined the factor was properly considered by the jury and rejected Moore's constitutional challenges. 2015 WL 1310046, at *11. In reviewing the sentencing transcript, however, the panel agreed with Moore that the district court did not state its finding of substantial and compelling reasons to depart on the record at the time of sentencing. The panel determined that although the sentencing court agreed with the jury's finding, it may have denied the departure absent substantial and compelling reasons to grant the departure. And, so, the sentencing court did not fulfill its duty to make those findings, and the panel vacated Moore's sentence and remanded for the district court to determine whether the departure was appropriate. If it was, then the panel directed the sentencing court to make those findings on the record. 2015 WL 1310046, at *14.

On remand in 2016, the district court resentenced Moore. He again appealed, but since an accurate transcript of the resentencing hearing was unavailable, the parties jointly moved to vacate the sentence and remand for another sentencing hearing.

At the district court, Moore moved to depart from the 432-month sentence to the presumptive sentence of 194 months. The district court held a resentencing hearing on January 29, 2021. Based on the presentence investigation report, the district court determined Moore's criminal history score was A and his primary offense of aggravated burglary was a severity level 5 person felony.

In support of his argument that the presumptive sentence was the appropriate sentence, Moore argued that if the district court imposed the presumptive sentence, he would still serve 16 years in prison. He also argued had spent the last 10 years in custody with few violations or very minor issues. According to Moore, his record in custody only included a single violation for stealing a dollar's worth of cinnamon rolls. In support of his argument, he also compared the duration of his departure sentence to other presumptive sentences for crimes more egregious than his underlying convictions.

After hearing the State's argument to defer to the original sentence, the district court stated:

"Well, this is a tough case. And honestly, you know, Mr. Moore, you look like you're a lot different than you were even the last time I saw you. I am sure you were a lot different than when Judge Davis sentenced you. I am sure you are a changed man, and I take no joy or any satisfaction in having to sentence you in this case now 10 years later from the time that the crimes were committed.

"But I reviewed the jury trial. I reviewed—I know the facts of the case. Those very facts were placed in front of a jury, and the jury found by beyond a reasonable doubt that there were aggravating circumstances here and that jury found that Mr. Moore— there was an element of future dangerousness. I can't really go back and ... overturn what the jury has found in terms of the aggravating factor here.

"And then I really can't—because I didn't hear the—I didn't hear the case. All I have done is read the record, and I read the preliminary hearing and the evidence was all consistent. It was—I kind of related at the last hearing that this is the kind of crime or this kind of crime spree is the kind of thing that just makes everyone unsettled. That somebody could actually—and I know as you are sitting there today, you are a different man today, but when you committed these crimes, this was probably a very terrorizing event in that neighborhood out there in DeSoto and Lenexa where this all occurred.

"... [W]hen I read the transcript, I have to find there are substantial and compelling reasons here to depart for the—from the sentencing guidelines and to impose a departure sentence in this case. Again, I take no satisfaction from doing this, but I think I have to honor what Judge Davis did in terms of what he felt the appropriate sentence was in this case and that that sentence was appropriate.

"Frankly, I think even the Court of Appeals in its opinion when it sent it back here for this Court to resentence had no qualms with the sentence other than there was not an on-the-record finding of substantial and compelling reasons. So I don't think I am going to—well, I am not going to change what I did at the last time. I imagine that—I apologize that your case wasn't able to go on forward to an appeal based on the record that we did the last hearing in this case, but I'm going to impose the same sentence that I did at the last hearing."

In imposing the sentence, the district court addressed counts 1, 2, 3, 4, 6, and 11, and found substantial and compelling reasons to depart upward from the presumptive sentences for each conviction and imposed a sentence double the presumptive sentences. The district court ordered each sentence to be served consecutively for a total term of imprisonment of 432 months. In imposing the sentence for count 12, theft, the district court found substantial and compelling reasons to depart from the mid-number of the presumptive sentence and imposed a sentence of 12 months to be served concurrently with the other sentences. Finally, the district court sentenced Moore to six months for his misdemeanor conviction, ran that sentence concurrent with the other sentences, and reimposed the original restitution amount.

The district court did not err in resentencing Moore.

Moore argues the district court abused its discretion when it "deferred" to the original sentencing decision rather than consider his arguments in support of a presumptive sentence. He asks us to vacate his sentence and remand for resentencing.

Standard of review

Sentencing courts are required to impose a presumptive sentence under the sentencing guidelines. See K.S.A. 2020 Supp. 21-6815(a). That is, unless the sentencing court finds substantial and compelling reasons to impose a departure sentence. State v. Bird , 298 Kan. 393, 397, 312 P.3d 1265 (2013). Within the context of departure sentences, "substantial" means the reason "must be real, not imagined, and of substance, not ephemeral." State v. Blackmon , 285 Kan. 719, 724, 176 P.3d 160 (2008). A "compelling" reason "forces the court, by the facts of the case, to abandon the status quo and to venture beyond the sentence" that would be ordinarily imposed. 285 Kan. at 724.

The sentencing court relied on a nonstatutory factor to impose the upward departure: Moore's future dangerousness. See Bird , 298 Kan. at 398-99 (courts may consider nonstatutory factors "as long as the factors are consistent with the principles underlying the [revised Kansas Sentencing Guidelines Act]"). Our Supreme Court recently clarified that a three-step inquiry applies in evaluating a departure sentence based on a nonstatutory factor:

"(1) whether the determination of a nonstatutory factor was guided by an erroneous legal conclusion; (2) whether substantial competent evidence supported the factual finding that the factor existed, i.e., an error of fact; and (3) whether a reasonable person would have taken the view adopted by the sentencing court. And it is important to emphasize that only the first step involves a legal question, subject to unlimited review." State v. Morley , 312 Kan. 702, 711, 479 P.3d 928 (2021).

The party asserting the error—Moore in this case—bears the burden of proving the district court abused its discretion in its departure decision. See State v. Thomas , 307 Kan. 733, 739, 415 P.3d 430 (2018).

Discussion

Moore contends the district court erroneously deferred to the original sentencing decision in granting the upward departure. The...