State v. Windom
| Citation | 932 P.2d 1019,23 Kan.App.2d 429 |
| Decision Date | 07 February 1997 |
| Docket Number | No. 75023,75023 |
| Parties | STATE of Kansas, Appellee, v. Jerome WINDOM, Appellant. |
| Court | Court of Appeals of Kansas |
Syllabus by the Court
1. Under the Kansas Sentencing Guidelines Act, when a sentencing court does not depart from a presumptive sentence, the court is not required to state its reasons for refusing to depart.
2. K.S.A. 21-4610(c)(8) provides that the sentencing court may include as a condition of probation that the defendant support his or her dependents.
3. When a defendant admits that he or she has a dependent child, even though there has been no regular judicial determination of that fact, and no appropriate child support order has been entered, the trial court may make reasonable support orders as a condition of probation.
Aronda Strutt Kerns, Wichita, for appellant.
Charles R. Reimer, Assistant District Attorney, Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, for appellee.
Before ROYSE, P.J., PIERRON, J., and DEAN J. SMITH, District Judge Retired, Assigned.
Jerome Windom appeals the denial of his motion for downward departure and the district court's order requiring him to pay $75 per month child support as a condition of his probation. We affirm.
Windom entered a Brady plea to a charge of possession of cocaine, a severity level 4 drug felony, in violation of K.S.A.1994 Supp. 65-4160. In exchange for his plea, the State agreed to recommend the minimum sentence in the appropriate grid box and to not oppose Windom's motion for downward departure.
Prior to sentencing, Windom filed a motion for durational departure and a pleading entitled "Proposed Findings of Fact and Conclusions of Law." He sought a departure of his sentence from 10 months to 6 months and a placement on probation for 24 months.
At sentencing, the parties agreed Windom's criminal history was category "H". Windom argued and based his motion for departure on the minimal amount of cocaine involved in the case. The court denied the motion, finding the amount of cocaine had already been contemplated in the sentencing grid. Windom was sentenced to the lowest prison sentence in drug grid box 4-H, 12 months' incarceration followed by 12 months' postrelease supervision. The court then placed him on probation under the supervision of Court Services for 24 months.
As one of the conditions of probation, the court ordered Windom to pay $75 per month in child support and/or provide receipts to the court services officer verifying expenditures in an equivalent amount. Windom appeals this probation condition and any conditions related thereto as well as the court's order denying his motion for downward departure. The district court subsequently revoked Windom's probation, but it is unclear from the record which probation condition he violated.
First, Windom argues his sentence resulted from the prejudice of the district court.
Windom recognizes this court's authority regarding a sentence that falls within the presumptive range of the Kansas Sentencing Guidelines Act (KSGA) for the crime committed. In State v. Clark, 21 Kan.App.2d 697, 699-700, 907 P.2d 898 (1995), rev. denied 259 Kan. ---- (Feb. 7, 1996), the court stated:
In K.S.A.1994 Supp. 21-4721(e)(1), which is applicable to defendant's appeal, the Kansas Legislature gave this court the jurisdiction to review a claim that: "(1) [t]he sentence resulted from partiality, prejudice, oppression or corrupt motive." However, we note that in 1995, K.S.A.1994 Supp. 21-4721(e) was amended to state as follows: "In any appeal, the appellate court may review a claim that: (1) [a] sentence that departs from the presumptive sentence resulted from partiality, prejudice, oppression or corrupt motive." L.1995, ch. 251, § 17. See State v. Favela, 259 Kan. 215, 239, 911 P.2d 792 (1996). The legislature's amendment in 1995 expresses a clear indication that sentences within the presumptive range for that crime are not reviewable.
Windom argues that although a sentencing court is not compelled to impose a departure sentence, it is compelled to look for substantial and compelling reasons for departure. He argues the court's obligation is found within the purpose of the KSGA to reserve prison space for serious/violent offenders and also within the language of four Kansas statutes: (1) K.S.A. 21-4716(a)--the judge shall impose a presumptive sentence unless the judge finds substantial and compelling reasons to impose a departure; (2) K.S.A. 21-4718(a)(1)--upon proper motion, the district court shall hold a hearing to consider imposition of a departure sentence; (3) K.S.A. 21-4719(a)--when a departure sentence is appropriate, the sentencing judge may depart; and (4) K.S.A. 21-4728--the sentencing court should consider a range of alternatives in all cases.
Windom argues the district court did not look for substantial and compelling reasons for departure and the court's failure violates the language and intent of the KSGA. He argues the district court failed to take into consideration the facts set forth in his proposed findings of fact and conclusions of law. Some of these facts were that Windom committed a victimless crime, he cooperated fully with police, and he did not use a weapon.
Under the KSGA, when a sentencing court does not depart from a presumptive sentence, the court is not required to state its reasons for refusing to depart. State v. Marble, 21 Kan.App.2d 509, Syl. p 15, 901 P.2d 521, rev. denied 258 Kan. 861 (1995).
Windom's argument rests on the court's limited comment at the sentencing hearing that the amount of cocaine had already been taken into account in the sentence grids. However, Windom fails to mention the only departure factor he raised at the sentencing hearing was the fact that the crime only involved a minimal amount of cocaine. The sentencing court's limited response was a natural response to the single departure factor raised by defense counsel.
We are not persuaded by Windom's argument that the district court did not seriously consider the mitigating factors raised in his proposed findings of facts and conclusions of law. The court stated at the sentencing hearing that it had a copy of the proposed findings of facts and conclusions of law and sentenced Windom to a presumptive sentence. He does not produce sufficient evidence to overcome the strong legislative presumption that the sentence was not the result of partiality, prejudice, oppression, or corrupt motive.
Next, Windom argues the district court acted with prejudice in ordering him to pay $75 per month in child support as a condition of his probation. Windom claims the district court did not have the authority to determine the exact amount of child support due each month.
Kansas courts have consistently recognized that probation is a privilege granted by the sentencing court and the court has broad power and authority in imposing conditions of probation so long as such conditions do not violate statutory law or constitute an abuse of discretion by the court. See State v. Walbridge, 248 Kan. 65, 68, 805 P.2d 15 (1991). The court in State v. Starbuck, 239 Kan. 132, 133, 715 P.2d 1291 (1986), stated: ...
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State v. Huerta
...courts also reviewed presumptive sentences for partiality, prejudice, oppression, or corrupt motive. See, e.g., State v. Windom, 23 Kan.App.2d 429, 430–31, 932 P.2d 1019, rev. denied 262 Kan. 969 (1997); State v. Clark, 21 Kan.App.2d 697, 699–700, 907 P.2d 898 (1995), rev. denied 259 Kan. 9......
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State v. KEE, JR.
...partiality, prejudice, oppression or corrupt motive. See State v. Flores, 268 Kan. 657, 658, 999 P.2d 919 (2000); State v. Windom, 23 Kan. App.2d 429, 430-31, 932 P.2d 1019, rev. denied 262 Kan. 969 Even under the current statute, defendants are not treated differently. An appellate court m......
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State v. GRAHAM, JR., 82,819.
...the sentence was the result of partiality, prejudice, oppression, or corrupt motive. K.S.A. 1994 Supp. 21-4721(e); State v. Windom, 23 Kan. App.2d 429, 431, 932 P.2d 1019, rev. denied 262 Kan. 969 (1997). This exception, however, is not applicable in the present case because Graham's crimes......
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State v. Koehn
...that, a sentencing court is not required to give its reasons for refusing to depart from a presumptive sentence." (citing State v. Windom, 23 Kan.App.2d 429, Syl. p 1, 932 P.2d 1019, rev. denied 262 Kan. ---- [1997] ). The State agrees and also cites State v. Mares, 20 Kan.App.2d 971, 972, ......