State v. Robinson ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,559
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MAURECE JAHNEL ROBINSON,
Appellant.
MEMORANDUM OPINION
Appeal from Ford District Court; LAURA H. LEWIS, judge. Opinion filed December 17, 2021.
Affirmed.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before WARNER, P.J., MALONE and BUSER, JJ.
PER CURIAM: Maurece Robinson was convicted of drug crimes after a search of
his rental car turned up a large amount of marijuana. On appeal, he argues that the statute
authorizing the traffic stop is unconstitutionally vague and that the district court erred in
denying his request for a dispositional departure sentence. We conclude the statute is not
void for vagueness, as it is clear about what it prohibits and contains objective
enforcement mechanisms. And the district court's decision to impose a prison sentence
was not unreasonable. We therefore affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
In July 2017, Ford County Sheriff's Deputy Ryan Davis was stationed along
Highway 54 on the west side of Bucklin, Kansas. Highway 54 runs east-west through
Bucklin, and within Bucklin it is a four-lane road (with two lanes traveling eastbound and
two lanes traveling westbound). East of Bucklin, Highway 54 continues as a four-lane
road for about 0.3 miles past the city limit before merging back into a two-lane highway.
A "Welcome to Bucklin" sign alerts drivers when they enter the town from the west, but
there are no signs flagging the end of city limits to eastbound drivers leaving town.
The official eastern boundary of Bucklin is Seacat Road; Deputy Davis knew this
to be the case, as he had previously looked it up. In the 0.3-mile stretch from Seacat Road
to the point where eastbound Highway 54 returns to a single lane, the right lane runs
parallel to a Kansas Department of Transportation site with gravel pits and other road
crew materials. In this stretch of road, there are three turn-offs from the right lane into the
KDOT site for state vehicles.
While he was stationed on Highway 54, Deputy Davis noticed a rental car with
Alabama license plates traveling eastbound through Bucklin in the left lane. Because
rental cars in Bucklin, in his experience, are more likely to be involved in criminal
activity, Deputy Davis began following the car as it left town. In the short stretch of road
outside Bucklin before the lanes merge, the car remained in the left lane. After observing
this action, Deputy Davis stopped the car for failing to drive in the right lane under
K.S.A. 2017 Supp. 8-1522(c).
Robinson was the driver and sole occupant of the car. Robinson explained that he
was driving home to Minnesota from Arizona, where he had visited his daughter for four
days. Davis found this explanation and the fact that Robinson had luggage in the back
seat suspicious. While writing a warning and conducting a records check, Davis asked
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another deputy to come with a K-9 unit, and a second deputy arrived in less than two
minutes. Neither deputy smelled drugs, but they requested—and Robinson consented
to—a K-9 sniff of the car's exterior. The dog alerted on Robinson's trunk, signaling drugs
were present. The deputies then searched the trunk and immediately found a backpack
containing about 3.3 pounds of marijuana in vacuum-sealed packaging. They also found a
vacuum sealer in the luggage in the back seat.
The State charged Robinson with possession of marijuana with intent to distribute
and possession of drug paraphernalia. Robinson filed a pretrial motion to suppress, in
which he argued, in part, that the traffic stop was unlawful because eastbound drivers had
no notice of when they were leaving Bucklin city limits—and thus when they had to
drive in the right lane—causing arbitrary enforcement of K.S.A. 2017 Supp. 8-1522(c).
According to Robinson, this arbitrary enforcement violated his constitutional right to due
process of law.
The court heard evidence and oral argument on the motion and ultimately denied
it. In its ruling, the court noted that it believed the traffic rule Deputy Davis relied upon—
requiring cars to drive in the right lane when there is more than one lane of traffic in one
direction—was unreasonable in this circumstance. The court opined that it was "really
unsafe to require someone to swerve into the right lane" outside of Bucklin for the 0.3-
mile stretch before the eastbound lanes merge. But despite these reservations, the court
found K.S.A. 2017 Supp. 8-1522(c) was enforceable and the stop valid.
At the subsequent bench trial, Robinson renewed his motion to suppress, arguing
that he had no notice of when he left Bucklin and therefore no notice of when K.S.A.
2017 Supp. 8-1522(c)'s requirement to drive in the right lane became effective. The court
again denied the motion, and Robinson lodged a continuing objection to all evidence
obtained from the search. At the close of evidence, the court convicted Robinson on both
charges.
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After trial, based on the parties' agreement, Robinson moved for a downward
durational departure to 36 months, with the opportunity to request probation. The court
granted the durational departure but declined to grant probation, sentencing Robinson to
36 months in prison. Robinson appeals.
DISCUSSION
Robinson's appeal again challenges his convictions and sentence, though his
arguments have evolved to some extent. Instead of challenging the application of K.S.A.
2017 Supp. 8-1522(c) to his case, Robinson argues that the statute itself is
unconstitutionally vague and cannot be enforced against him given the lack of a sign
denoting the end of Bucklin's city limit. He also continues to argue that given his
background and the circumstances of his case, the district court should have placed him
on probation instead of ordering him to serve a prison sentence. After carefully reviewing
the record and the parties' arguments, we affirm Robinson's convictions and sentence.
1. K.S.A. 2017 Supp. 8-1522(c) is not unconstitutionally vague.
Appellate courts exercise unlimited review over challenges to the constitutionality
of a statute. State v. Harris, 311 Kan. 816, 821, 467 P.3d 504 (2020). We presume a
statute is constitutional and resolve all doubts in favor of a statute's validity. State v.
Jenkins, 311 Kan. 39, 53, 455 P.3d 779 (2020). The party challenging a statute as vague
bears the burden of overcoming the presumption of constitutionality. 311 Kan. at 53. A
statute is not unconstitutionally vague "'simply because difficulty is found in determining
whether certain marginal offenses fall within [its] language.'" Hearn v. City of Overland
Park, 244 Kan. 638, 641, 772 P.2d 758 (1989).
To survive a vagueness challenge, a statute "must clear two distinct—albeit
relatively low—hurdles." Harris, 311 Kan. at 821.
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• Under the Fourteenth Amendment's Due Process Clause, a statute must put people
on notice of what it prohibits. 311 Kan. at 821-22. Our inquiry is "'whether a
person of ordinary intelligence understands what conduct is prohibited by' the
statutory language at issue." State v. Richardson, 289 Kan. 118, 125, 209 P.3d 696(2009).
• Under the separation of powers doctrine inherent in our constitutional structure,
the statute must adequately guard against arbitrary and unreasonable enforcement.
State v. Gonzalez, 307 Kan. 575, 580, 412 P.3d 968 (2018). A statute cannot be so
broad that it fails to provide explicit enforcement standards, effectively delegating
the legislative task of defining the statute's parameters to law enforcement and the
courts. Harris, 311 Kan. at 822.
Although statutes that run afoul of this second hurdle are considered unconstitutionally
"vague," their text is often very clear. 311 Kan. at 823. It is the overbreadth of these
statutes, rather than their wording, that renders them ambiguous; they invite arbitrary
enforcement by creating "a world in which 'almost anyone can be arrested for
something.'" 311 Kan. at 823.
The statute at issue, K.S.A. 2017 Supp. 8-1522(c), provides:
"Upon a highway located outside the corporate limits of any city divided into two
lanes of traffic proceeding in the same direction, all vehicles shall be driven in the right
lane except when:
(1) Overtaking and passing another vehicle;
(2) preparing to make a proper left turn;
(3) otherwise directed by official traffic-control devices; or
(4) otherwise required by other provisions of law."
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Before interpreting and analyzing this statute, we must address two preliminary
matters.
First, the parties disagree over whether Robinson's present vagueness challenge
may be presented on appeal, given the difference between this argument and those he
raised in his motion to suppress and at trial. Robinson asserts that his vagueness argument
is a logical extension of his earlier arguments, which similarly raised questions of notice
and arbitrary enforcement. But the State points out that the issues at trial focused on
whether Robinson had notice that he was outside Bucklin city limits—that is, whether
K.S.A. 2017 Supp. 8-1522(c) applied at all—not whether the statute was sufficiently
clear as to what it required. And likewise, the enforcement question at trial was how often
Deputy Davis and other officers stopped people on this 0.3-mile stretch of highway for
failing to drive in the right lane, not whether K.S.A. 2017 Supp. 8-1522(c) led to arbitrary
enforcement by providing officers too much discretion as to what violates the law. In
light of these differences, we agree with the State that the argument Robinson raises in
his appeal was not raised before the district court.
As a general rule, issues not raised before the district court—including
constitutional issues—cannot be raised on appeal. State v. Daniel, 307 Kan. 428, 430,
410 P.3d 877 (2018); see State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). This is
because appellate courts are courts of review. When a party presents an issue in an appeal
that was not raised below, it deprives the district court of the ability to consider the
argument and conduct an error-free trial. It also deprives the appellate court of a record to
review—there are no previous articulations of the argument to consider and no reasoning
by the district court to evaluate. Robinson acknowledges this hurdle, but he argues that
we should nevertheless consider his vagueness argument because it involves a purely
legal question arising on proved or admitted facts and would be finally determinative of
the case. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). We agree that
whether a statute is void for vagueness turns on principles of statutory interpretation and
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due process—pure questions of law that do not require a trial record. We thus exercise
our discretion to consider the merits of Robinson's vagueness claim.
Second, the State suggests that the argument Robinson raised before the district
court regarding the Bucklin city limits—and some of the arguments he raises on appeal—
are unfounded. The State asserts that Bucklin traffic laws may also require drivers to
drive in the right lane, and therefore Davis had reasonable suspicion to stop Robinson no
matter where city limits ended. Bucklin's city code incorporates the Standard Traffic
Ordinance for Kansas Cities (STO) by reference. Code of the City of Bucklin, Kansas §
14-101. STO § 38(a)(1) requires drivers to drive "upon the right half of the roadway"
unless "overtaking and passing another vehicle proceeding the same direction." Standard
Traffic Ordinance for Kansas Cities, art. 8, sec. 38(a)(1), p. 61 (48th ed. 2021). But STO
38 is virtually identical to K.S.A. 8-1514, which applies specifically to driving left of
center on a two-lane road. State v. Garza, 295 Kan. 326, 334, 286 P.3d 554 (2012). In
contrast, K.S.A. 8-1522 applies to roads with two lanes traveling in the same direction.
295 Kan. at 334. Within Bucklin, there are two lanes of traffic traveling in the same
direction, so STO 38 is inapplicable. Robinson did not violate the law by driving in the
left lane within city limits.
Having resolved these questions, we turn to the various arguments Robinson raises
in his vagueness challenge. Robinson argues that the phrase "outside the corporate limits
of any city" in K.S.A. 2017 Supp. 8-1522(c) is vague because drivers may not be on
notice of where city limits end—and thus when K.S.A. 2017 Supp. 8-1522(c) applies. He
asserts that without requiring signs or some other notice designating the end of city
limits, drivers are left to guess when they must drive in the right lane, relying on factors
such as speed limits, number of lanes, and whether there are surrounding buildings.
We disagree. The phrase "outside the corporate limits of any city" clearly defines
where K.S.A. 2017 Supp. 8-1522(c) applies. Drivers have notice of what the statute
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prohibits, despite Bucklin's lack of signage for eastbound drivers. They must drive in the
right lane on highways outside city limits, unless one of the statute's exceptions applies.
Robinson cites no authority suggesting that a statute must provide guidance so that
drivers know the exact geographic boundaries of where it applies.
People are presumed to know the law. State v. Taylor, 54 Kan. App. 2d 394, 431,
401 P.3d 632 (2017). Just as there is a presumption that Robinson knows he must drive in
the right lane on state highways when no exceptions to K.S.A. 2017 Supp. 8-1522(c)
apply, he is also presumed to know where that law applies. Though the Bucklin city
limits may not have been apparent on this stretch of road, that does not render K.S.A.
2017 Supp. 8-1522(c) vague. The statute is clear about what it prohibits—driving in the
left lane without an applicable exception—and where it applies—outside the corporate
city limits of any city.
As the State notes, many statutes prohibit conduct inside or outside city limits.
See, e.g., K.S.A. 2020 Supp. 21-6308a(a) ("Unlawful discharge of a firearm is the
reckless discharge of a firearm within or into the corporate limits of any city."). These
statutes are not void for vagueness whenever a city lacks signs designating its official
limits. And some of Bucklin's existing signs—for instance, the "Welcome to Bucklin"
sign for westbound drivers—were well outside the official city limits. The logical
implication of Robinson's argument would be to require every city in Kansas to add
signs—or move existing ones—to their official boundaries. While there might be good
prudential reasons for denoting a city limit, vagueness principles do not require such
sweeping action.
A person of ordinary intelligence would know what K.S.A. 2017 Supp. 8-1522(c)
prohibits—driving in the left lane on a highway outside city limits except to pass, make a
left turn, or as the law or traffic-control devices otherwise direct. Under the first hurdle of
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a vagueness analysis, "outside the corporate limits of any city" is not unconstitutionally
vague because citizens are on notice of what conduct is prohibited.
Under the second vagueness hurdle, Robinson attacks K.S.A. 2017 Supp. 8-
1522(c)'s exceptions. A panel of this court and the United States District Court for the
District of Kansas have considered vagueness challenges to subsection (1) of K.S.A. 8-
1522(c). State v. Possemato, No. 115,087, 2018 WL 297378 (Kan. App. 2018)
(unpublished opinion); United States v. Alvarado, No. 14-10050-01-JTM, 2014 WL
2711910 (D. Kan. 2014) (unpublished opinion). Both cases found that subsection (c)(1)
was constitutional because, although "[o]vertaking and passing another vehicle" could
have a different meaning for different drivers, it effectively communicates that drivers
must stay in the right lane except to pass. Possemato, 2018 WL 297378, at *4-5;
Alvarado, 2014 WL 2711910, at *2-3.
Another panel discussed subsection (c)(1) when determining whether there was
reasonable suspicion that a driver violated K.S.A. 2018 Supp. 8-1522(c), which contains
the same language as K.S.A. 2017 Supp. 8-1522(c). State v. Arceo-Rojas, 57 Kan. App.
2d 741, 750-54, 458 P.3d 272, rev. denied 312 Kan. 893 (2020). That panel held, over a
dissent, that there was reasonable suspicion the defendant was driving in the left lane
without meeting any of K.S.A. 2018 Supp. 8-1522(c)'s exceptions when police observed
her in the left lane without completing a pass for over 3 miles. 57 Kan. App. 2d at 753-
54. Though not a vagueness challenge, the panel rejected the defendant's contention that
because K.S.A. 2018 Supp. 8-1522(c)(1) does not define how long a driver can take to
pass another vehicle, it is too difficult to determine when somebody violates the statute
(and thus that there was no reasonable suspicion for the stop). 57 Kan. App. 2d at 750.
For subsections (c)(1) and (2)—"[o]vertaking and passing another vehicle" and
"preparing to make a proper left turn"—Robinson's argument resembles the argument this
court rejected in Possemato, 2018 WL 297378, at *4-5. Though subject to varying
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interpretations, these provisions are not void for vagueness. Law enforcement can
objectively determine whether a driver is in the left lane to pass or make a left turn based
on context and indicators like a turn signal, distance, speed, whether there are other cars
in the right lane, or whether there is a place to turn left. See Arceo-Rojas, 57 Kan. App.
2d at 753-54 (reasonable suspicion that driver was not passing when she was driving a
similar speed as the car in the right lane without passing for several miles). There may be
cases in which this determination is imperfect, but that does not render subsections (c)(1)
and (2) unconstitutionally vague. And here, Robinson was neither passing nor preparing
to make a left turn.
The next exception under the statute—subsection (c)(3), permitting a person to
drive in the left lane when "otherwise directed by official traffic-control devices"—is
similarly not unconstitutionally vague. K.S.A. 8-1442 gives clear standards for when this
exception applies, defining "'[o]fficial traffic-control devices'" as "all signs, signals,
markings, and devices, not inconsistent with this act, placed or erected by authority of a
public body or official having jurisdiction for the purpose of regulating, warning, or
guiding traffic." Thus, K.S.A. 2017 Supp. 8-1522(c)(3) has adequate, objective
enforcement standards. There is also no allegation that there were official traffic-control
devices directing Robinson to the left lane.
The final exception, subsection (c)(4), allowing drivers to drive in the left lane
when "otherwise required by other provisions of law," does not lack adequate
enforcement standards. If another statute requires drivers to drive in the left lane for some
reason, this exception would permit it. Robinson asserts that K.S.A. 2017 Supp. 8-
1522(a) requires driving in the left lane until a driver determines it is safe to change
lanes. He argues that determining whether a lane change is "safe" under that provision
invites arbitrary enforcement and, as the district court found, it may be unsafe to move to
the right lane for 0.3 miles, then quickly merge back left. But whatever practical issues
the statute might raise for drivers in specific situations, K.S.A. 2017 Supp. 8-1522(c)(4)
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does not lack objective enforcement standards. And whatever issues could exist with
subsection (a)'s enforcement standards, that provision is not before us.
K.S.A. 2017 Supp. 8-1522(c) gives drivers clear notice of what it prohibits—
driving in the left lane of a state highway when an exception does not apply. The statute
also has adequately objective enforcement standards. Thus, Robinson has not overcome
the presumption of constitutionality—K.S.A. 2017 Supp. 8-1522(c) is not
unconstitutionally vague.
Though Robinson raised other arguments before the district court, he has not
pursued those challenges on appeal. Accord State v. Arnett, 307 Kan. 648, 650, 413 P.3d
787 (2018) (an issue not briefed is deemed waived or abandoned). We thus affirm his
convictions based on the evidence obtained in the traffic stop.
2. The district court did not err when it denied Robinson's request for a dispositional
departure sentence.
Robinson also argues that the district court erred when it denied his request for a
dispositional departure—that is, for probation instead of a prison sentence. Robinson
points out that he is a Minnesota resident, is working towards a college degree, and is still
recovering from a car accident that caused significant injuries and led him to turn to
drugs in the first place. He argues that these circumstances rendered his Kansas prison
sentence particularly disruptive, and the district court should have given these factors
greater consideration at sentencing.
We review the denial of a departure sentence under an abuse of discretion
standard. State v. Farmer, 312 Kan. 761, 763, 480 P.3d 155 (2021). A district court
abuses its discretion if no reasonable person would agree with its decision, or if that
decision is based on a legal or factual error. 312 Kan. at 763.
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A defendant can generally appeal a departure sentence, including the extent of the
departure. K.S.A. 2020 Supp. 21-6820(a); State v. Looney, 299 Kan. 903, 908, 327 P.3d
425 (2014). A departure sentence is unappealable only if a more specific statutory
provision precludes that process. 299 Kan. at 909. One such provision prohibits an appeal
from "any sentence resulting from an agreement between the state and the defendant
which the sentencing court approves on the record." K.S.A. 2020 Supp. 21-6820(c)(2).
The State asserts that we lack jurisdiction to consider the denial of Robinson's
motion because the district court granted a durational departure based on an agreement
between the parties. But in Looney, the Kansas Supreme Court found that it had
jurisdiction to consider an appeal when the parties agreed to a durational departure but
not a dispositional departure. Looney, 299 Kan. at 904, 909. The facts here closely mirror
those in Looney: Robinson and the State agreed to a durational departure, but not a
dispositional departure. Robinson requested probation, and the State argued for imposing
a prison sentence. There was no agreement barring an appeal from the denial of a
dispositional departure, and thus there is no jurisdictional bar to Robinson's appeal of his
sentence.
A sentencing court must impose the presumptive sentence under the sentencing
guidelines absent substantial and compelling reasons for a departure. K.S.A. 2020 Supp.
21-6815(a). K.S.A. 2020 Supp. 21-6815(c) contains a nonexhaustive list of factors to
consider when determining whether to depart from the guidelines. A sentencing court
may consider other factors if the record contains evidence to support them and using
them would conform to the guidelines' purposes. State v. Hines, 296 Kan. 608, 616, 294
P.3d 270 (2013).
For a reason to be substantial, it "must be real, not imagined, and of substance, not
ephemeral." State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008). To be
compelling, it "must be one which forces the court, by the facts of the case, to abandon
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the status quo" and impose a different sentence. 285 Kan. at 724. Even when there are
substantial and compelling reasons that could warrant a departure sentence, the
sentencing court has substantial discretion whether to depart from the guidelines. K.S.A.
2020 Supp. 21-6818(a) ("the sentencing judge may depart").
Here, the district court considered Robinson's arguments and ultimately granted a
65% downward durational departure (to a prison term of 36 months), citing the parties'
agreement and Robinson's remorse as substantial and compelling reasons. But the court
did not find that Robinson's stated reasons also justified a dispositional departure. This
was not an abuse of discretion. Despite Robinson's accountability and desire to better his
life, the court's finding that probation was inappropriate was reasonable given the drugs
he possessed and the steps he took to avoid detection. And though Robinson has ties to
Minnesota, he violated the law in Kansas and was subject to the consequences of his
behavior in Kansas. The district court did not err when it granted Robinson's request for a
durational departure sentence but denied his request for probation.
Affirmed.
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