State v. Calvert ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,801
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SHAUN CALVERT,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed May 14,
2021. Affirmed.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.
Before GARDNER, P.J., GREEN and BUSER, JJ.
PER CURIAM: Shaun Calvert appeals the trial court's denial of his dispositional
departure motion, arguing that the specific facts of his case provided the trial court with
substantial and compelling reasons to sentence him to probation instead of prison. Yet,
because Calvert's underlying argument is unpersuasive, we affirm the denial of his
departure motion.
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FACTS
The State charged Calvert with possession of marijuana with intent to distribute, a
severity level 2 nonperson felony in violation of K.S.A. 2017 Supp. 21-5705(a)(4).
Eventually, Calvert entered into a plea agreement with the State. Under his plea
agreement, Calvert agreed to plead guilty as charged in exchange for the State's promise
to not press "any further charges" against him "arising out of [its] current investigation"
as well as the State's promise to "stand silent" should Calvert later request a dispositional
departure to probation. After pleading guilty to possessing marijuana with the intent to
distribute in accordance with his plea agreement, however, Calvert failed to appear at his
sentencing hearing. As a result, the trial court issued a bench warrant for Calvert's arrest.
Ultimately, the police arrested Calvert on the bench warrant. Following his arrest
but before his rescheduled sentencing, Calvert filed a departure motion with the trial
court. In his departure motion, Calvert recognized that his minimum presumed sentence
under the Kansas Sentencing Guidelines Act (KSGA) was 122 months' imprisonment
based on his criminal history score of B. All the same, he argued that the specific facts of
his case provided the trial court with substantial and compelling reasons to dispositionally
depart from his presumptive prison sentence. Alternatively, he argued that the same
substantial and compelling reasons entitled him to a durational departure to 65 months'
imprisonment.
But at his sentencing, the trial court rejected Calvert's request to impose a
dispositional departure sentence. It instead found that Calvert had merely provided it with
substantial and compelling reasons to durationally depart from his presumptive KSGA
prison sentence. It then sentenced him to 65 months' imprisonment followed by 36
months' postrelease supervision.
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Calvert timely appealed the trial court's denial of his dispositional departure
motion.
ANALYSIS
Calvert's sole argument on appeal is that the trial court abused its discretion by
denying his dispositional departure motion. In particular, Calvert argues that the trial
court acted unreasonably by denying his dispositional departure motion because he had
provided the trial court with the following substantial and compelling reasons entitling
him to the departure: (1) his limited criminal history, (2) his prior successful completion
of probation, (3) his limited role in his underlying crime, (4) his acceptance of
responsibility for his underlying crime, (5) his ability to maintain employment, (6) his
desire to pay his child support obligations, (7) his desire to foster a relationship with his
minor children, (8) his willingness to complete substance abuse treatment for his drug
addiction, (9) his ability to maintain sobriety while in jail awaiting his rescheduled
sentencing hearing, and (10) his history of mental illness. As to his final point, like he did
before the trial court, Calvert argues that his history of mental illness constituted a
substantial and compelling reason entitling him a dispositional departure because it was
his mental illness that resulted in him failing to appear at his original sentencing hearing.
The State counters and maintains that the trial court properly denied Calvert's
dispositional departure motion. In short, the State contends that the trial court acted
reasonably when denying his dispositional departure motion because in doing so, it
"carefully considered [Calvert's] proffered substantial and compelling reasons for a
departure sentence."
A defendant who receives a durational departure from his or her presumptive
KSGA sentence may appeal the trial court's decision to deny his or her dispositional
departure motion. See K.S.A. 2020 Supp. 21-6820(a); State v. Looney, 299 Kan. 903,
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908, 327 P.3d 425 (2014). When considering such appeals, this court reviews the trial
court's denial of the defendant's dispositional departure motion for an abuse of discretion.
State v. Spencer, 291 Kan. 796, 807, 248 P.3d 256 (2011). An abuse of discretion occurs
if the trial court's decision was based on an error of law, an error of fact, or an otherwise
unreasonable decision. In cases like this one where the defendant argues that the trial
court acted unreasonably, this court will not reverse the trial court's decision unless no
reasonable person would have agreed with the trial court. State v. Powell, 308 Kan. 895,
903, 425 P.3d 309 (2018).
At Calvert's sentencing, the trial court provided him with the following
explanation why it was denying his dispositional departure motion but granting his
durational departure motion:
"Mr. Calvert, I have read your motion. I've handled your case since, looks like,
back in 2018 in this matter. And while I have to take into consideration the
codefendant's—I am considering that, but I also have to take into consideration your case.
You have a long history of prior convictions. A lot of person crimes, whether they're
misdemeanors, whether the aggravated battery, including one other—I believe another
marijuana.
"I know your attorney's indicated that he believes that you suffer from
[posttraumatic stress disorder], but that's contrary to what Dr. Reece says. He says
there's no evidence of mental illness or severe emotional disorder.
"Placing you on probation, you missing this court date sentencing was an
indication to this Court that you are never going to comply with this—probation.
"For that reason, I'm going to deny your motion for a dispositional departure.
"However, I am going to grant a durational departure. I'm going to follow the
State's recommendation and—I don't know that I heard your attorney or—I saw in his for
65 months, but that may have been something that your attorney and Miss Oswald
[State's attorney] talked about. That's a pretty big break in this case, in my opinion, but
I'm going to follow those requests, and I'm going to sentence you to the Department of
Corrections for your conviction for 65 months.
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"I'm granting that because you have taken responsibility for your crimes. You
did—while you didn't—I'm not sure I can say you saved the State a lot of resources here
because they had to appear in court. You did save the State by having to go to trial, by
putting on witnesses, and ultimately by withdrawing your motion [to withdraw] plea, to
have to litigate that issue.
"I don't—for those reasons, I'm going to grant and sentence you to 65 months. I
think that's a fair sentence. More than fair. That's five years, five months.
"You'll be given credit for the 173 days, so you've already served six months.
You will be able to earn up to 15 percent good time.
....
"As I said, I am denying the motion to—for a dispositional. That's based on your
criminal history, based on your actions in this case, and based on this case. I don't
believe that that's an appropriate disposition in this matter." (Emphases added.)
Thus, in denying Calvert's dispositional departure motion, the trial court first
emphasized that it understood the arguments in Calvert's motion as well as the facts of
Calvert's case. It then rejected Calvert's contention that he was entitled to a dispositional
departure to probation based on his lengthy criminal history, his conduct while
committing his underlying crime, and his conduct during the pendency of his case. On
appeal, although Calvert complains that the trial court's rejection of his dispositional
departure motion was unreasonable, under the facts of his case, the trial court's denial of
his motion was entirely reasonable.
First, the trial court properly found that Calvert's lengthy criminal history
established that he was not entitled to a dispositional departure to probation. In his brief,
Calvert seemingly argues that his criminal history score of B was less severe than other
defendants who have a criminal history score of B because his score hinged on the
conversion of his three previous adult person misdemeanors convictions. But Calvert's
argument ignores that our Legislature has determined that when calculating a defendant's
criminal history score, every three of the defendant's prior adult class A or class B person
misdemeanors convictions is equivalent to a single adult person felony. Indeed, this is
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why our Legislature requires the trial court to convert every three of the defendant's
previous adult class A or class B person misdemeanors convictions to a single adult
person felony. See K.S.A. 2020 Supp. 21-6811(a). As a result, the trial court's conversion
of three of Calvert's prior adult class A or B person misdemeanor convictions into a
single adult person felony did not render Calvert's criminal history score of B somehow
less severe than other defendants with the same criminal history score.
Also, notwithstanding this problem with Calvert's criminal history argument, we
note that Calvert, who was 33 years old when he committed his current crime of
conviction, had 31 prior adult and juvenile convictions in his criminal history. With so
many prior convictions, we agree with the trial court that Calvert's criminal history did
not warrant a dispositional departure sentence. We therefore hold that the trial court acted
reasonably by denying Calvert's dispositional departure motion based on his lengthy
criminal history.
Second and relatedly, as indicated by the trial court when denying Calvert's
dispositional departure motion, Calvert's current crime of possessing marijuana with
intent to distribute was particularly troubling given his previous conviction for selling
marijuana. Simply put, it seems whatever punishment Calvert received for his prior
conviction neither rehabilitated nor deterred Calvert from continuing to sell marijuana.
Hence, we further hold that trial court acted reasonably by denying Calvert's dispositional
departure motion based on Calvert's previous conviction for selling marijuana.
Third and perhaps most importantly, the trial court properly found that Calvert's
conduct during the pendency of his criminal case established that he was not entitled to a
dispositional departure to probation. Although Calvert continues to allege that his mental
illness caused him to not attend his original sentencing hearing, the trial court made a
credibility determination against Calvert on this issue because Dr. Reece found that he
suffered from no mental illness. Calvert does not dispute this credibility determination
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against him. And in any case, this court does not reassess a trial court's credibility
determinations when applying the abuse of discretion standard of review. See State v.
Newman, 311 Kan. 155, 159, 457 P.3d 923 (2020).
So Calvert has provided no credible explanation why he failed to attend his
original sentencing hearing. Yet, because Calvert has provided no credible explanation
about his failure to attend his original sentencing hearing, it follows that no such credible
explanation existed. In turn, Calvert's failure to attend his original sentencing strongly
indicated that Calvert would be unable to comply with the more arduous burdens of
probation. We thus hold that the trial court's denial of Calvert's dispositional departure
motion was reasonable given Calvert's failure to appear at his original sentencing hearing.
Finally, although Calvert asserts that several other things constituted substantial
and compelling reasons requiring the trial court to grant his dispositional departure
motion, we disagree. When deciding whether to grant a dispositional departure motion,
the trial court must make more than "mere conclusory findings" to support its ruling.
State v. Sewell, 25 Kan. App. 2d 731, Syl. ¶ 2, 971 P.2d 1201 (1998). It necessarily
follows that a defendant moving for a departure must provide more than mere conclusory
reasons to support his or her departure motion. Here, Calvert's remaining reasons why the
trial court should have granted his dispositional departure motion are conclusory. Thus,
Calvert's allegations fail to show why the trial court or judge should accept them as true.
As a result, we agree with the trial court that those reasons were not so substantial
and compelling as to entitle Calvert to a dispositional departure when viewed in light of
his lengthy criminal history, his conduct while committing his underlying crime, and his
conduct during the pendency of his criminal case. And we also agree with the State's
contention that the trial court's ultimate decision to grant Calvert's alternative request for
a durational departure to 65 months' imprisonment establishes that the trial court
"carefully considered [Calvert's] proffered substantial and compelling reasons for a
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departure sentence." Indeed, by imposing the 65-month durational departure sentence
when Calvert's minimum presumptive sentence under the KSGA was 122 months'
imprisonment, the trial court undoubtedly credited Calvert for the few substantial and
compelling reasons he had listed in his departure motion.
Thus, under the facts of this case, we do not hesitate to hold that the trial court
acted reasonably by denying Calvert's dispositional departure motion. As a result, we
affirm the denial of this motion and Calvert's 65-month prison sentence.
Affirmed.
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