State v. Hartzell ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,134
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JEROMY HARTZELL,
Appellant.
MEMORANDUM OPINION
Appeal from Geary District Court; STEVEN L. HORNBAKER, judge. Opinion filed December 11,
2020. Affirmed.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and BURGESS, S.J.
Per Curiam: Jeromy Hartzell pled no contest to possession of methamphetamine
with intent to distribute in violation of K.S.A. 2018 Supp. 21-5705(a)(1). Under the terms
of the plea agreement, Hartzell was permitted to file a motion for both a dispositional and
durational departure from the presumptive sentence. At sentencing, the district court
granted a downward durational departure but denied a dispositional departure. Hartzell
appeals the denial of a dispositional departure, contending the district court abused its
discretion. Finding no error, we affirm the judgment and sentence.
1
FACTUAL AND PROCEDURAL BACKGROUND
In September 2018, Hartzell was charged with possession of methamphetamine
with intent to distribute in violation of K.S.A. 2018 Supp. 21-5705(a)(1), possession of a
controlled substance with no drug tax stamp in violation of K.S.A. 79-5204(a) and K.S.A.
79-5208, and possession of drug paraphernalia in violation of K.S.A. 2018 Supp. 21-
5709(b)(1).
In August 2019, Hartzell entered into a plea agreement with the State. Under the
terms of the agreement, Hartzell pled no contest to possession of methamphetamine with
intent to distribute. In exchange for the plea, the State dismissed the remaining drug
charges and agreed that Hartzell could file a motion and argue for both a dispositional
and durational departure.
Of note, after his initial arrest on these charges, Hartzell pled no contest to the
additional charge of aggravated failure to appear due to his failure to attend the
preliminary hearing in this case.
Prior to the sentencing hearing on the charge of possession of methamphetamine
with intent to distribute, Hartzell filed a motion for a departure sentence. In the motion,
Hartzell argued that community supervision would serve society's interest better than
imprisonment because he could participate in mental health counseling and other
treatment. Moreover, Hartzell argued that he was a nonviolent offender and that prison
should be reserved for violent offenders. In support, Hartzell highlighted that his last
conviction for a violent crime was in 2007. Finally, he noted the passage of time between
the current conviction and his last conviction for a nontraffic related offense in 2007
indicated that he was not a habitual criminal. According to Hartzell, these facts
constituted substantial and compelling reasons for the district court to order a departure
sentence.
2
At the sentencing hearing, Hartzell agreed that he had a criminal history score of
E. The State argued that Hartzell should be sentenced to the presumptive sentence of 59
months' imprisonment and he should not be given a dispositional departure to probation.
In support, the State pointed to Hartzell's 24 prior convictions, a previously unsuccessful
probation term, and the escalating nature of his crimes. The State also mentioned
Hartzell's failure to appear while this case was pending.
At sentencing, Hartzell argued for both a dispositional and durational departure
sentence. He claimed that he became addicted to methamphetamine and was only selling
to support his own habit. He believed that treatment was the best way to address his
underlying addiction and claimed that he had actively participated in nearly all treatment
programs available to him while he was incarcerated during the pendency of this case.
Hartzell noted that he had completed an alcohol and drug education class and another
class at Cloud County College Adult Education. He pointed out that he had obtained a job
and that probation would allow him to be with his two-month old son. Hartzell's daughter
also testified at the sentencing hearing about Hartzell's recent addiction to
methamphetamine and her belief that he could be rehabilitated.
The district court granted Hartzell a durational departure sentence from 59 months'
imprisonment to 36 months' imprisonment but found no substantial and compelling
reason to grant Hartzell's motion for a dispositional departure to probation. In particular,
the district court cited the addictive nature of methamphetamine and the societal harm
that results from people selling and using the drug.
Hartzell appeals.
3
ANALYSIS
On appeal, Hartzell contends the district court abused its discretion when it denied
his motion for a dispositional departure.
Appellate courts review a district court's decision to deny a departure motion
under an abuse of discretion standard, "measuring whether the departure is consistent
with the purposes of the guidelines and proportionate to the crime severity and the
defendant's criminal history." State v. Spencer, 291 Kan. 796, 807-08, 248 P.3d 256
(2011). A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or
unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State
v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018) As the party asserting the district
court abused its discretion, Hartzell bears the burden of establishing an abuse of
discretion. See State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).
Under K.S.A. 2019 Supp. 21-6815(a), "the sentencing judge shall impose the
presumptive sentence provided by the sentencing guidelines unless the judge finds
substantial and compelling reasons to impose a departure sentence." "Substantial" means
something real, not imagined; something with substance, not ephemeral. "Compelling"
means that the court is forced, by the facts of the case, to leave the status quo or go what
is beyond ordinary. State v. Reed, 302 Kan. 227, 250, 352 P.3d 530 (2015).
On appeal, Hartzell reprises the arguments that he made to the district court. He
claims that his nonviolent nature, motivation to obtain community-based counseling and
treatment, and the societal interests served by reserving prison for the most violent
offenders established substantial and compelling reasons to justify a dispositional
departure.
4
Hartzell does not argue that the district court rejected or failed to consider these
reasons. In fact, during the sentencing hearing, the district court discussed how Hartzell's
criminal history score, lack of prior person felonies and violent acts, and the fact that
Hartzell was trying to help himself through treatment programs while incarcerated
figured into its decision to grant a durational departure but not a dispositional departure.
Hartzell is essentially asking our court to assess the record independently and come to the
opposite conclusion of the district court, rather than focusing on whether the district court
abused its discretion. This is beyond our standard of review.
In summary, Hartzell fails to show that no reasonable person could have reached
the same conclusion as the district court and, as a result, we find the district court did not
abuse its discretion when it rejected Hartzell's request for a dispositional departure
sentence. Accordingly, we affirm the district court's judgment and sentence.
Affirmed.
5