State v. Moss ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,730
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
BLAKE LEE MOSS,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed October 30,
2020. Affirmed.
Jacob Nowak, of Kansas Appellate Defender Office, for appellant.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., MALONE, J., and WALKER, S.J.
PER CURIAM: Blake Lee Moss pled guilty to a number of felonies and
misdemeanors. Prior to sentencing, the State moved the court for an upward dispositional
departure for Moss' sentence. The State argued that although Moss' sentence was
presumptive probation, Moss had demonstrated that he was not amenable to probation
through his actions before his current arrest. The district court agreed and granted the
State's motion.
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On appeal, Moss argues that the district court violated his constitutional rights by
relying on facts not found by a jury to enhance his sentence. Alternatively, he argues
there were not substantial and compelling factors warranting an upward dispositional
departure. Finding no error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
In May 2019, Moss pled guilty to fleeing or attempting to elude police, possession
of marijuana, possession of drug paraphernalia, transporting an open container, driving
under the influence, interference with law enforcement, leaving the scene of an accident,
driving while suspended, and cruelty to animals. A presentence investigation report
indicated that Moss and a criminal history score of F, meaning that his felony convictions
were presumptive probation.
The State moved for an upward durational and dispositional departure, arguing
that Moss was not amenable to probation and presented a risk of future danger to society.
The State filed a second motion for upward dispositional departure which focused on the
State's argument that Moss was not amenable to probation. According to the State, Moss
had a history of violating bond conditions by breaking the law, failing to comply with
probation conditions, and a general failure to comply with the requirements courts placed
on him. This culminated with his current conviction, where the district court allowed
Moss to return to residential treatment while awaiting trial. However, Moss absconded
from residential treatment after testing positive for alcohol.
At sentencing, Moss argued that any fact supporting an upward departure would
have to be found to exist by a jury. After hearing arguments from the parties, the district
court granted the State's motion "[b]ased upon the defendant's prior interaction with the
Court in this case and in his other cases." Based on that, the court found that there were
substantial and compelling reasons to depart and not grant Moss probation. The court
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ordered Moss to serve a 9-month sentence in prison, consecutive to a 24-month sentence
in jail.
Moss timely appeals. Additional facts are added below as necessary.
ANALYSIS
Moss raises two arguments on appeal. First, he argues that his constitutional rights
were violated when the court granted the State's motion for an upward dispositional
departure by relying on facts that were not found by a jury. Second, Moss argues that if
the court disagrees with his first argument, that there were not substantial and compelling
reasons to support the upward dispositional departure.
The district court did not violate Moss' constitutional rights by granting the State's
motion for an upward dispositional departure.
In essence, Moss argues that the court violated his jury trial rights by relying on a
fact, other than the fact of a prior conviction, that increased his sentence from probation
to imprisonment, in violation of the rules set out by the Supreme Court of the United
States in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000). However, as Moss acknowledges, the Kansas Supreme Court has held that
Apprendi does not apply to upward dispositional departures in State v. Carr, 274 Kan.
442, 452, 53 P.3d 843 (2002).
In Carr, the Kansas Supreme Court concluded that "Apprendi applies only to
upward durational departures of a sentence imposed." 274 Kan. at 452. As the court noted
"[t]he distinction between probation and the imposition of a prison sentence renders the
United States Supreme Court's Apprendi decision inapplicable to a sentencing judge's
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decision to impose a dispositional departure prison sentence rather than to grant
probation." 274 Kan. at 452.
Moss argues that the Kansas Supreme Court's decision in Carr was flawed and
that the rule in Apprendi applies to upward dispositional departures. And as the State
points out, the Kansas Supreme Court recently cited approvingly to its holding in Carr.
See State v. Hambright, 310 Kan. 408, 419-20, 447 P.3d 972 (2019). However, this court
is duty bound to follow Kansas Supreme Court precedent unless there is some indication
that the Kansas Supreme Court is departing from its previous position. State v. Rodriguez,
305 Kan. 1139, 1144, 390 P.3d 903 (2017).
The Kansas Supreme Court has given no indication that it intends to depart from
its previous holding in Carr. This court recognized that as recently as September 2020, in
State v. Parker, No. 121,966, 2020 WL 5740885, at *2 (Kan. App. 2020) (unpublished
opinion), petition for rev. filed October 20, 2020. See State v. Baker, No. 121,727, 2020
WL 4913283, at *3 (Kan. App. 2020) (unpublished opinion), petition for rev. filed
September 15, 2020; State v. Vannostrand, No. 120,941, 2020 WL 1969332, at *3 (Kan.
App. 2020) (unpublished opinion) (noting, in dicta, the holding in Carr), rev. denied __
Kan. __ (September 25, 2020).
Based on the Kansas Supreme Court's holding in Carr, the district court did not
violate Moss' constitutional rights by granting the State's motion for an upward
dispositional departure.
The district court did not err by finding substantial and compelling reasons to upwardly
depart.
For his second issue on appeal, Moss argues that there were not substantial and
compelling reasons warranting an upward dispositional departure.
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Our standard of review is abuse of discretion.
When the record supports the district court's stated reasons for the departure, we
apply an abuse of discretion standard to determine whether a particular factor constituted
a substantial and compelling reason to depart. State v. Bird, 298 Kan. 393, 397-98, 312
P.3d 1265 (2013); State v. Morley, 57 Kan. App. 2d 155, 161, 448 P.3d 1066 (2019), rev.
granted ___ Kan. ___ (August 27, 2020). 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. Woodring, 309 Kan. 379, 380, 435 P.3d 54
(2019). The party asserting an abuse of discretion—in this case Parker—bears the burden
of demonstrating such an abuse of discretion exists. State v. Thomas, 307 Kan. 733, 739,
415 P.3d 430 (2018).
A sentencing departure must be supported by substantial and compelling reasons
justifying a deviation from the presumptive sentence under the revised Kansas
Sentencing Guidelines Act, K.S.A. 2017 Supp. 21-6801 et seq. See K.S.A. 2017 Supp.
21-6815(a). "'Substantial'" means something real, not imagined; something with
substance, not ephemeral. State v. Reed, 302 Kan. 227, 250, 352 P.3d 530
(2015)."'Compelling'" means that the court is forced, by the facts of the case, to leave the
status quo or go what is beyond ordinary. 302 Kan. at 250.
Substantial competent evidence refers to legal and relevant evidence that a
reasonable person could accept as being adequate to support a conclusion. State v. Doelz,
309 Kan. 133, 138, 432 P.3d 669 (2019).
There was substantial competent evidence to support the district court's decision.
Kansas courts recognize that a lack of amenability to probation can be a
substantial and compelling factor justifying an upward dispositional departure. State v.
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Rodriguez, 269 Kan. 633, 647, 8 P.3d 712 (2000). Moreover, evidence of a lack of
amenability to probation can be gleaned from "a defendant's demonstrated attitude when
given prior opportunities at probation or other forms of supervised release." 269 Kan. at
647.
Here, there was substantial competent evidence to support the district court's
determination that substantial and compelling reasons to grant the State's motion for an
upward dispositional departure existed. While awaiting sentencing in an earlier case,
Moss violated his bond conditions at least four times, including driving while under the
influence. While in residential treatment on his earlier cases, Moss tested positive for
alcohol and, while revocation for his positive alcohol test was pending, used marijuana.
After his return to residential treatment, Moss tested positive for methamphetamine and
failed to follow the treatment center's rules. Then, while on bond in this case, Moss again
tested positive for alcohol and absconded from treatment.
There was substantial competent evidence to support the district court's conclusion
that Moss "can't handle probation." Given Moss' history while on bond or probation, the
district court did not abuse its discretion by granting the State's motion for an upward
dispositional departure.
Affirmed.
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