State v. Busby ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,219
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TIMOTHY BUSBY,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; JENNIFER L. MYERS, judge. Opinion filed April 1, 2022.
Reversed and remanded with directions.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.
Taylor A. Hines, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.
Before MALONE, P.J., ATCHESON and WARNER, JJ.
PER CURIAM: After Defendant Timothy R. Busby had served roughly 13 years in
prison on three felony convictions for aggravated burglary and burglary, he requested that
the Wyandotte County District Court parole him from some or all of the consecutive
sentences totaling 30 months he had yet to serve in jail on three related misdemeanors.
By then, the judge imposing those sentences had retired, and the judge inheriting the case
denied Busby's request because she would not "second guess" the original judge. Given a
district court's statutory prerogative to modify misdemeanor sentences, the reason
displays either an arbitrariness or a failure to exercise judicial discretion that is, itself, an
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abuse of discretion. We, therefore, reverse the district court's decision and remand with
directions to convene a new hearing to again consider Busby's request.
After a jury convicted Busby of two counts of aggravated burglary, one count of
burglary, two counts of misdemeanor theft, and one count of misdemeanor criminal
damage to property in 2008, District Court Judge J. Dexter Burdette sentenced Busby to
consecutive sentences totaling 175 months on the felonies and consecutive sentences of
12 months on each misdemeanor theft and 6 months on the misdemeanor criminal
damage to property (totaling 30 months). Judge Burdette ordered that Busby serve the
misdemeanor sentences in the Wyandotte County Jail after completing the felony
sentences in the State prison system.
As Busby was nearing the end of the prison term in 2021, he filed a motion asking
the district court to parole him from the misdemeanor sentences given his age—he was
then about 60 years old—along with the time he would ultimately serve on the felonies—
about 14 years—and his demonstrable rehabilitation while incarcerated. The State
opposed the motion, arguing that Busby had not been rehabilitated as he claimed and that
Judge Burdette's sentencing decision "needs to be respected." As we indicated, Judge
Burdette had retired by then.
District Court Judge Jennifer L. Myers handled the case and held a short hearing
on the motion on June 30, 2021. The lawyers for Busby and the State outlined their
respective positions. In denying the parole request, Judge Myers pointed out that Judge
Burdette had given Busby the maximum sentences possible on the convictions without an
upward durational departure by running each term of incarceration consecutive to the
others. Judge Myers explained that she felt as if Busby's lawyer was "asking me to
overrule another [j]udge's decision[,] and I don't think that I'm in a position to do that."
She added that she agreed Judge Burdette's sentencing determination "should be
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respected." Judge Myers offered no further explanation for rejecting the motion—so she
did not comment on Busby's age or purported rehabilitation. Busby has appealed.
A district court has the authority under K.S.A. 2020 Supp. 21-6608(b) to parole a
defendant from a sentence of confinement in a county jail for a misdemeanor conviction.
In granting parole, the district court may impose conditions on the defendant's conduct
upon release for up to two years. K.S.A. 2020 Supp. 21-6603(e) (defining parole); K.S.A.
2020 Supp. 21-6608(b) (duration of parole). Parole may be from the entire misdemeanor
sentence or some portion of it.
Given the broad latitude afforded district courts, the decision to parole a defendant
from a misdemeanor sentence entails the exercise of judicial discretion. State v. Holt, 255
Kan. 416, 422, 874 P.2d 1183 (1994). We, therefore, review those rulings for abuse of
that discretion.
A district court may be said to have abused its discretion if the result it reaches is
"arbitrary, fanciful, or unreasonable." Unruh v. Purina Mills, LLC, 289 Kan. 1185, 1202,
221 P.3d 1130 (2009). The Kansas Supreme Court has described an arbitrary decision as
one "'without adequate determining principles [or] not done . . . according to reason or
judgment.'" Robinson v. City of Wichita Employees' Retirement Bd. of Trustees, 291 Kan.
266, 271, 241 P.3d 15 (2010). An abuse of discretion may also occur if the district court
fails to consider or to properly apply controlling legal standards. State v. Woodward, 288
Kan. 297, 299, 202 P.3d 15 (2009). A district court errs in that way when its decision
"'goes outside the framework of or fails to properly consider statutory limitations or legal
standards.'" 288 Kan. at 299 (quoting State v. Shopteese, 283 Kan. 331, 340, 153 P.3d
1208 [2007]). And a district court may abuse its discretion if a factual predicate necessary
for the challenged judicial decision lacks substantial support in the record. State v.
Darrah, 309 Kan. 1222, 1227, 442 P.3d 1049 (2019) (outlining all three bases for an
abuse of discretion); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).
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In addition, a district court effectively abuses its discretion either by failing to
recognize the discretion it has or by declining to exercise that discretion. State v. Stewart,
306 Kan. 237, 262, 393 P.3d 1031 (2017). Thus, "[i]t is an abuse of discretion for a
district court to issue a 'blanket ruling' that disposes of a discretionary determination
automatically without analyzing the factors that would enter into the discretionary
decision." State v. Horton, 292 Kan. 437, 440, 254 P.3d 1264 (2011). Busby carries the
burden to show the district court abused its discretion in some manner. State v. Powell,
308 Kan. 895, Syl. ¶ 5, 425 P.3d 308 (2018).
A district court has the discretionary authority to grant parole to misdemeanants to
take account of their reasonably successful efforts at rehabilitation or at otherwise making
amends for their wrongdoing in ways indicating their continued incarceration would not
well serve their best interests or those of the community at large. Here, Judge Burdette
would have been obligated to examine the factual underpinnings for Busby's claim for
relief from the jail sentences and to then make a determination whether those
circumstances in 2021 warranted some dispensation. Especially given the length of time
between the original sentencing and Busby's request for parole, Judge Burdette could not
have simply dismissed the request out-of-hand by reasoning that his original sentence
was entirely appropriate when imposed and necessarily remained so. That would be an
abdication of the statutory discretion accorded district courts in considering parole and,
therefore, an abuse of discretion. The Kansas appellate courts have recognized that sort of
categorical decision-making to be improper in rendering sentencing determinations
calling for the exercise of judicial discretion. See State v. Fisher, 249 Kan. 649, 652, 822
P.2d 602 (1991) (district court abused discretion by refusing to consider probation for
defendant for the stated reason it never granted probation on cocaine convictions despite
statutory authority to do so); State v. Welch, No. 121,700, 2020 WL 5083324, at *4 (Kan.
App. 2020) (unpublished opinion) (district court abused discretion by refusing to consider
reducing defendant's sentence upon revocation of probation for the stated reason "'I don't
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modify sentences when somebody violates'" because statute permitting reduction called
for individualized determination).
Here, Judge Myers had the same obligation to use her judicial discretion in
weighing Busby's request for parole. She could not (and did not) exercise that discretion
by unconditionally deferring to the original sentencing determination made 13 years
earlier simply because she did not wish "to overrule" another judge. See In re Marriage
of Mullokandova and Kikirov, No. 108,601, 2013 WL 5422358, at *4 (Kan. App. 2013)
(unpublished opinion) (assuming abuse of discretion when visiting judge replacing retired
judge denied motion for reconsideration because he would not "'second guess'" original
judge). Moreover, Judge Myers did not mention, let alone apparently consider, the
substantive reasons Busby presented to support his request. That is likely arbitrary. The
decision also ignores the statutory framework for considering motions for misdemeanor
parole and seemingly disregards the proffered facts.
For those reasons, the denial of Busby's request for parole amounted to an abuse of
discretion and, therefore, must be set aside. On remand, Busby is entitled to a new
hearing on his request. To be clear, however, we are neither suggesting what conclusion
the district court should reach nor limiting the circumstances the district court may
consider in reaching that conclusion. Judge Burdette's original sentences and the stated
reason for imposing those sentences have some relevance, just as Busby's conduct in
prison since 2008 does.
Reversed and remanded to the district court with directions to hold a new hearing
on Busby's motion for parole.
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