No. 110,130
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellant,
v.
MILES E. THEURER,
Appellee.
SYLLABUS BY THE COURT
1.
A sentencing court is required to impose the presumptive sentence provided by the
Revised Kansas Sentencing Guidelines Act, K.S.A. 2013 Supp. 21-6815(a), unless the
court finds substantial and compelling reasons to impose a departure sentence.
2.
A substantial and compelling reason to depart downward from a presumptive
sentence is a mitigating factor. In order for a mitigating factor to be substantial, the
reason must be real, not imagined, and of substance, not ephemeral. In order to be
compelling, the mitigating factor must be one which forces the court, by the facts of the
case, to abandon the status quo and to venture beyond the sentence that it would
ordinarily impose.
3.
Although K.S.A. 2013 Supp. 21-6815(c)(1)(A)-(E) provides a list of potential
mitigating factors, the list is nonexclusive, and a sentencing court may rely on
nonstatutory factors to depart if they are consistent with the principles underlying the
Revised Kansas Sentencing Guidelines Act.
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4.
If a sentencing court determines that a departure sentence is warranted, it must
state on the record at the time of sentencing the substantial and compelling reasons for
the departure and make findings of fact regarding those mitigating factors. K.S.A. 2013
Supp. 21-6815(a); K.S.A. 2013 Supp. 21-6817(a)(4).
5.
An appellate court's standard of review for departure decisions depends on the
issue presented. When we consider whether the record supports an articulated mitigating
factor for a departure sentence, we review for substantial competent evidence. When the
appellate court determines whether a particular mitigating factor may ever, as a matter of
law, be substantial and compelling in any case, our review is unlimited. When the record
supports a valid, articulated mitigating factor, we apply an abuse of discretion standard to
determine whether the mitigating factor constituted a substantial and compelling reason
to depart in the particular case.
6.
A departure sentence will be upheld on appeal if any of the mitigating factors or
reasons articulated by the sentencing court is substantial and compelling given the
particular case. Conversely, if each individual factor, standing alone, is not sufficient to
justify a departure sentence, the factors, considered collectively, may constitute a
substantial and compelling basis to impose a departure sentence in the particular case.
7.
Reasons which may in one case justify departure may not in all cases justify a
departure. Rather, an appellate court must evaluate the offense of conviction, the
defendant's criminal history, and the departure reason stated, as well as the purposes and
principles of the Revised Kansas Sentencing Guidelines.
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Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed November 21, 2014.
Reversed, sentences vacated, and case remanded with directions.
James W. Garrison, assistant county attorney, Barry R. Wilkerson, county attorney, and Derek
Schmidt, attorney general, for appellant.
Pedro L. Irigonegaray and Elizabeth R. Herbert, of Irigonegaray & Associates, of Topeka, for
appellee.
Before BUSER, P.J., STEGALL, J., and BUKATY, S.J.
BUSER, J.: While driving under the influence of alcohol, Miles E. Theurer caused
a head-on collision which killed Elizabeth Young and Michael Stanley. In keeping with a
plea agreement, Theurer pled no contest to two counts of involuntary manslaughter while
driving under the influence of alcohol. Under the Revised Kansas Sentencing Guidelines
Act (RKSGA), K.S.A. 2013 Supp. 21-6801 et seq., the district court was required to
impose presumptive sentences of imprisonment. Instead, the district court sentenced
Theurer to two concurrent 41-month sentences but granted his motion for dispositional
departure sentences. As a result, Theurer was not imprisoned but was granted 36 months
of probation while under house arrest with special conditions, including serving 60 days
in jail.
We hold the sentencing court erred in four aspects when it granted Theurer's
motion for dispositional departure sentences. First, as a general matter, the sentencing
court based its sentencing decision on an error of law by applying an incorrect legal
standard. Second, the overriding factor articulated by the sentencing court for granting a
departure in this case—that the defendant is an exceptional person with the potential to
provide a great benefit to society—is not a substantial and compelling reason to grant
departure sentences. Third, some of the sentencing court's other articulated reasons for
granting departure sentences were not supported by substantial competent evidence.
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Fourth, those reasons enunciated by the sentencing court which were supported by
substantial competent evidence, when considered together, did not provide a substantial
and compelling reason to grant departure sentences given the circumstances of this
involuntary manslaughter case.
Accordingly, we reverse the judgment of the sentencing court, vacate the
sentences imposed, and remand the case to the district court with directions for
resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
On Saturday, May 12, 2012, Theurer received a bachelor of science degree in
agriculture from Kansas State University (KSU). The following evening, Theurer and
three friends celebrated the occasion by visiting the Mustang Gentlemen's Club, a
Junction City strip club. Several hours later, in the early morning hours of Monday, May
14, 2012, with Theurer driving a Silverado pickup truck, the four men began the return
trip to Manhattan.
Eyewitnesses described Theurer as driving erratically, too fast for the
circumstances, and swerving on the roadway. At about 2:45 a.m., Theurer approached a
construction zone on Fort Riley Boulevard/Highway K-18, with marked eastbound and
westbound lanes. Although he was traveling eastbound, Theurer entered the westbound
lane, driving in the wrong direction.
Ronnie Loggins, who had been following Theurer's truck and had properly entered
the eastbound lane, flashed his headlights, honked his horn, and pulled next to Theurer,
waving his arms in an effort to alert him that he was driving the wrong way. Theurer did
not respond to these warnings but continued traveling eastbound at about 55 miles per
hour in the westbound lane of the construction zone.
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A short time later, Theurer's truck collided head-on with a westbound Buick
LeSabre near Stagg Hill Road. The automobile was driven by Young, a 31-year-old
mother of two children. The passenger was Stanley, a 30-year-old father of two children.
Due to the force of the collision, the Buick went "almost straight up in[to] the air." The
vehicle was totaled, with the front end "completely smashed."
Young and Stanley had "severe trauma" and were killed instantly. In an affidavit
filed in support of the arrest of Theurer, Officer Calvin Sanders of the Riley County
Police Department averred:
"The coroner results indicated that Young 'expired as a consequence of overwhelming
injuries with damage to the central nervous system that cause[d] . . . instant death' and
both died as [a] result of 'atlanto-occipital separation.' This means that both had their
necks broken at the skull with a tear of the spinal cord due to the impact of the collision."
Officer Sanders was dispatched to the collision. As he approached Theurer's truck,
he "immediately smelled the odor of alcoholic beverage from inside the vehicle." When
asked what happened, Theurer told the officer, "'In all honesty, I thought I was in the
correct lane.'"
Theurer and his friends were seriously injured and taken to area hospitals. At
Mercy Hospital, Theurer's blood was drawn for alcohol testing. At that time, he
volunteered to Officer Sanders, "'I'll be honest; I'm not going to say I didn't have anything
to drink.'" After waiving his constitutional rights under Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), Theurer advised Officer Sanders that he
had consumed two Bud Light beers at a bar. Theurer told the officer he had stopped
drinking alcohol 30 minutes prior to leaving Junction City for Manhattan. When Theurer
was asked if he believed he was under the influence of alcohol, he replied, "'I mean I just
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had a couple.'" Theurer also said he did not notice anyone in a vehicle trying to get his
attention before the collision.
Andrew Mason, a passenger in Theurer's truck, was later interviewed by Officer
Sanders. According to Mason, the men went to the strip club at about 8 p.m. on Sunday
and finished drinking about 30 minutes before leaving Junction City early Monday
morning to return home to Manhattan. Mason claimed that prior to the collision Theurer
drank one or two bottles of beer.
At the scene of the collision, Officer Sanders found in the passenger's
compartment of Theurer's truck a Coors Light beer can, a "'Coors Light case,'" and a
"'Maker's Mark liquor bottle.'" Theurer's blood sample was taken to the Kansas Bureau of
Investigation laboratory for forensic testing. The results revealed that Theurer's blood-
alcohol content was .19—more than twice the legal limit. See K.S.A. 2011 Supp. 8-
1567(a)(2).
As a consequence of the collision, Lance Schmidt, a passenger in Theurer's truck,
suffered a closed head injury which necessitated therapy at the Madonna Rehabilitation
Hospital in Lincoln, Nebraska, in an effort to regain the use of his arms. Mason, also
received physical therapy for his injuries. Joseph Iliff, another passenger in Theurer's
truck, was also injured, and Theurer's right foot had been almost amputated as a result of
the accident impact.
After the collision, Theurer attended classes at KSU through the summer and fall
semesters of 2012. On April 9, 2013, the State charged Theurer with two counts of
involuntary manslaughter while driving under the influence of alcohol, severity level 4
person felonies in violation of K.S.A. 2011 Supp. 21-5405(a)(3)—see K.S.A. 2011 Supp.
8-1567(a)(2)—and two counts of aggravated battery, severity level 5 person felonies, in
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violation of K.S.A. 2011 Supp. 21-5413(b)(2)(A), for the injuries sustained by Schmidt
and Mason. Theurer surrendered to authorities, and he was released on bond.
On May 7, 2013, in keeping with a plea agreement, Theurer entered pleas of nolo
contendere to two counts of involuntary manslaughter. In return, the State dismissed the
aggravated battery charges and promised not to file additional charges related to the
collision. The State also agreed to recommend that Theurer serve the standard
presumptive RKSGA prison sentence for each of the involuntary manslaughter
convictions. The sentences were to run concurrent with one another. If followed by the
sentencing court, the State's recommendations meant that Theurer would serve 41 months
in prison. See K.S.A. 2011 Supp. 21-6804(a). In keeping with the plea agreement,
however, Theurer reserved the right to request a departure from serving the presumptive
prison sentences. After being informed of the plea agreement, District Judge John F.
Bosch accepted the pleas and found Theurer guilty of two counts of involuntary
manslaughter.
After the plea hearing, Theurer filed a motion for downward durational and
dispositional departure sentences. He identified 17 mitigating factors as substantial and
compelling reasons to depart from the presumptive RKSGA sentences of imprisonment:
(1) Theurer's "unlawful conduct was aberrant behavior"; (2) Theurer "has provided
extraordinary acceptance of responsibility"; (3) Theurer "has no criminal history," and is
"relatively young and a very good candidate for continued rehabilitation"; (4) Theurer has
"Type 1 diabetes, . . . currently uses an insulin pump," and takes medication for high
blood pressure; his diabetes is difficult to stabilize and needs close monitoring, which is
"expensive and requires specialized professional care," including seeing a "specialist 2-3
times per year"; (5) Theurer "maintained a 4.0 GPA during high school" and "participated
in numerous extra-curricular organizations"; (6) Theurer completed his bachelor's degree
and "[d]uring his undergraduate years [he] continued to be an outstanding student,
maintaining a 3.722 GPA, and participating in many extra-curricular programs," and thus
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he "has played an active and positive role in the community throughout his education";
(7) Theurer "currently has two academic years remaining in his pursuit of two post-
graduate degrees" in veterinary medicine and "Diagnostic and Pathology Medicine"; (8)
Theurer "is currently involved in a research project that has the long term potential to
increase profitability in the beef industry, and reduce the use of antibiotics on food
animals"; (9) Theurer "is currently developing an Antimicrobial Resistance Seminar that
will bring both medical and veterinary professionals together" and "be beneficial to the
treatment and control of a variety of diseases"; (10) Theurer "was a founding member of
the Food For Thought Organization," a "grass-roots group . . . started by students coming
together to discuss ways to meet the challenges of misconceptions about an agricultural
industry removed from urban consumers"; (11) Theurer "has accumulated approximately
$102,000 in outstanding student loans," and "[s]ociety benefits from these loans being
repaid"; (12) Theurer "wishes to continue his education after sentencing so that he may
reach his potential and do the maximum amount of good for society"; (13) Theurer "has
already begun the rehabilitation process" by completing a "course of drug and alcohol
awareness, and has begun the process of completing an Alcohol Evaluation through
Pawnee Mental Health Care Services"; (14) Theurer "has on numerous occasions told
others about the terrible mistake he made the night of the accident," he "has shared with
others the tragic consequences that occurred due to his poor judgment in deciding to get
behind the wheel after consuming alcohol," he "recognizes that he is not the first, or
likely the last, person who will make this mistake," and he "has contacted the
administrators of several institutions seeking the opportunity to share his story and the
lessons that he has learned with young students"; (15) Theurer "is fortunate to have a
caring and supportive family, including his father, mother, and two older brothers, to
whom he is very close" and who "have continued their support for him through this
difficult time in his life"; (16) Theurer "has numerous friends that continue to support
him"; and (17) Theurer "has also developed an extensive network of professionals and
academics who believe that society would benefit from a departure from the sentencing
guidelines [in this case]."
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In support of his departure motion, Theurer provided academic transcripts,
descriptions of his current educational projects, a breakdown of his student loan debt, a
certificate of completion from an on-line alcohol and drug awareness course, letters
expressing interest in hearing him speak about drunk driving, and over 100 letters
submitted as character references.
In his departure motion, Theurer proposed that instead of the district court
imposing the presumptive sentences of imprisonment, the court should impose an
"'alternative' or 'unique' sentence":
"Mr. Theurer proposes a sentence that, if probation alone is insufficient, would
combine probation and house arrest during the school year with incarceration of some
kind (potentially the Riley County Jail) during any time off from his academic program
that he may otherwise enjoy. The court could prevent Mr. Theurer from attending social
events, parties, restaurants, movie theatres, and any and all other recreational activities.
Mr. Theurer does request however, that he be allowed to fulfill his obligations stemming
from his proposals to local institutions to warn students and members of the dangers of
drinking and driving, that he be allowed to complete his academic requirements, and that
he be allowed to receive the necessary medical care. At the conclusion of Mr. Theurer's
academic program, house arrest could be continued as long as the court may deem just
and appropriate. This option allows [him] to do the maximum amount of good for
society, while paying his debt to the same."
A presentence investigation (PSI) report was prepared to assist the sentencing
court. In this report, Theurer was asked to provide his version of the crimes of conviction.
Theurer wrote: "I made a mistake. I consumed alcohol and I drove my vehicle. I am truly
sorry for all consequences."
The PSI report also included statements written by family members of Young and
Stanley. Stanley's father wrote that he had a mental breakdown after "losing my only
child, my boy, my son." The father said he could not work for 7 weeks and fell behind on
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his payments, including his house payments. He described how his son's own children, 11
and 9 years old, were now fatherless. Stanley's father observed that Theurer "still get[s
h]olidays and [b]irthdays," but that his own family has only memories.
Stanley's stepmother wrote that "with [Stanley] gone it seems the world is a darker
place" and "[t]here is a void that can't be healed." She said she had "watched my family
fall apart" and that her husband "has lost his zest for life." She described how Stanley's
daughter "took all his clothes clean and dirty [and] put them in 1 big bag so she can keep
his scent forever." She described how Stanley's son "became suicidal, talking about
taking his own life just to be in the box with his Dad."
Stanley's daughter wrote: "I'm really sad . . . . I will never hear or feel him pick
me up and swing me around [and] sing to me." She said Stanley "played silly games,
gave piggy back rides, [and] rode my [tricycle] to make me laugh. . . . We had tea
[parties], watch[ed] movies together." She said: "He will miss all my school events,
sports events, . . . never see me graduate or go to college, never see me get married or be
there to give me away, never hold my babies or be a grandpa like [P]apa."
Stanley's son wrote: "I want my Daddy, but he's never coming home again." The
boy said: "I wanted to die to be with him" and that "I had to see a special doctor. I now
take [medicine] to help me." He also said: "I know I can't hurt myself, 'cause then [N]ana
would die if I died."
Stanley's mother wrote that the "loss of my son has impacted me greatly." She
"had to increase [her] medications" to the maximum dose and yet still has "a hard time
getting motivated" and "concentrating at work." She stated she would "'start to cry, and
can't stop'" and also said: "'I don't think that anyone can ever understand how the loss of
a child impacts a person's life.'" Other relatives of Stanley also submitted written
statements.
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Judge Bosch presided over the sentencing hearing which occurred on June 17,
2013. In addition to considering the departure pleadings, PSI report, drug and alcohol
evaluation report, and written victim impact statements, the sentencing court listened to
personal statements made at the hearing.
Stanley's stepmother mentioned at sentencing that Stanley's daughter "looks for
her daddy at night. She gets up, walks through the house, walks up to her dad, stands
there and talks to him." She said Stanley's son "was having breakdowns in the classroom,
crying uncontrollably," and "has been under counseling heavily for a whole year."
A letter was read from Young's daughter, who was also present at sentencing. She
detailed numerous personal activities and anticipated events of her life which her mother
would never share. Speaking also for her younger brother in the letter, she said: "[W]e
were both completely robbed of everything that could have happened in the future."
Finally, Stanley's father, referring to Theurer's proposal to make speeches about
drunk driving, said, "Well, that's a good idea, but I think he should get the full effect of it,
of going and doing his time and then coming back and helping kids so he can tell them
what to expect." It is noteworthy that all of the statements from the victims' families
emphasized the need for Theurer to serve a prison sentence for his crimes.
At the sentencing hearing, Theurer also addressed the court. Theurer apologized to
the families of Young and Stanley, especially the victims' children. He apologized also
"to the passengers that were in my vehicle that night of the accident," to "the community,
to the officers and emergency personnel that responded to the scene," to his "family and
friends," and to the "judge, as representative, as the State of Kansas judicial system, for
having to take the time and effort to process the case before you."
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Theurer asked the sentencing court "to grant the downward departure to allow me
the opportunity to talk to the high school, college, [and] professional students, [and to]
explain the true consequences and their effects of drinking and driving." Theurer said his
"goal . . . is to explain the nightmare that I have been through, so they will not make the
same tragic, dumb mistake that I made that evening." Theurer said, "While there's no
amount of money I could pay, time I could serve, community service that I can do to ever
repay my debt to society," he could "still be a positive influence on society and help
people from making some of these same tragic mistakes in the future."
During the hearing, the sentencing court quoted extensively from character
reference letters written in support of Theurer. These letters were written by Theurer's
friends, fellow students, former teachers, KSU faculty and administrators, and individuals
associated with agriculture, including the Kansas Secretary of Agriculture.
At the hearing, the sentencing court made several factual findings and legal
conclusions. It found that Theurer had a low risk of reoffense based on a Level of Service
Inventory Test (LSI-R test) and the Pawnee Mental Health Care Services drug and
alcohol assessment which showed a "low probability that Mr. Theurer has a substance
dependence disorder." The sentencing court also found that Theurer was remorseful and
had no criminal history, including "no evidence that he has ever broken the law before."
It made findings regarding Theurer's diabetes and his use of an insulin pump.
Additionally, the district court found Theurer has a supportive family and a "[g]ood"
employment and education record. It found Theurer had engaged in "rehabilitation
efforts" by staying in school, pursuing his degree, and presenting "a proposal that . . .
instead of sitting in prison for the next three years . . . he go out into society to high
schools, to colleges, to universities, to whoever, and tell them his story, to educate them."
Finally, the sentencing court found Theurer was not a threat to public safety, and he had
accepted responsibility for his crimes.
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Judge Bosch granted Theurer's motion for dispositional departure sentences. In
ruling from the bench, the district judge extensively addressed what he considered were
Theurer's exceptional personal characteristics:
"Mr. Theurer would be, and it's been proposed, an excellent person to speak. People have
described him in the letters as an 'impactful speaker' with the 'ability to capture an
audience.' He's 'well-spoken.' He will 'be an advocate against drunk driving' if allowed to
speak. 'When he speaks, people listen.' 'The mothers and fathers of the thousands lives he
can reach through speaking engagements will be grateful.' He could 'share his story
throughout the nation.' He is an 'articulate, convincing speaker.' Basically, other than this
incident, which has been described as aberrant behavior, Mr. Theurer has led a rather
perfect life, in spite of the fact he's diabetic, in spite of the fact he could not play sports,
which might account for why he has been so involved in things. I don't think there was a
thing in high school he wasn't involved in. I don't think there was a thing in college that
he wasn't involved in.
"One of his professors . . . indicated in the past 10 years, as long as this professor
has been teaching, there's not been another person who has been more involved than Mr.
Theurer. . . .
....
"I don't believe any of the factors that I have mentioned, Mr. Theurer, standing
alone, would justify a downward departure. But I can't imagine a situation where we
have—I ever have someone come before me again where they have done everything that
society expects to be done by a person except for this one thing.
"You have been described as, you know, a role model to children, described as a
stellar student, as a star student. It's too many to cover, but you are an exceptional person
that I find to be an atypical case. And in this case that, when considering the totality of
all of the facts of your life up to this point, I find that you should be granted a downward
departure and that there are substantial, compelling reasons when considered in all their
totality. . . .
"So what the Court will do for a sentence is I will require that you serve as much
time in the Riley County Jail as I can when I place you on probation, which is 60
days. . . . You will be placed on 36 months of probation with the Court Service Officer
for Riley County . . . . And for you to use your God-given talents, and if you can reach
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one person it will be worth it during those 36 months. I have no doubt that maybe you
can do the same thing if you spent that time in prison, but I don't know.
"What I think is best for society is that you get your degree, that you realize that
you have a lot of good to do with your life, not just for yourself, but you have, really,
three people's lives on your shoulders. You have everything that Mr. Stanley would have
done good, everything that Elizabeth Young could have done during their lifetime. And
you're going to have to make up . . . , to society, what you've done. And I think this might
be a start where, if you do as I think you can, as you are such an atypical, such a unique
person with such skills, that I think maybe you can touch some people out there. And so
the 60 days you're sitting in jail, I want you to put together a written proposal for how
you are going to do what you say you can do. And . . . I'm going to order that during the
36 months that you are on probation that you talk to no less than 36 either high schools,
colleges, [or] church groups.
". . . And if you can get—reach through to one person and save one life or make
an impact on one person, then I think that that is the better thing for society." (Emphasis
added.)
After the hearing, the sentencing court summarized its reasons for ordering the
departure sentences in its journal entry of judgment:
"Court finds Defendant an a-typical case. Totality of circumstances of factors listed on
the record include: good grades in school, lack of criminal record, diabetic medical
condition, Defendant's good character, Defendant's good speaking ability, [and]
Defendant's letters of recommendation are substantial and compelling reasons to depart."
(Emphasis added.)
The State filed a timely appeal of the district court's granting of departure
sentences.
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INTRODUCTION
On appeal, the State first contends the sentencing court "did not apply the correct
policy standards when considering whether there [were] substantial and compelling
reasons to grant a dispositional departure." The State also maintains the sentencing court's
"reasons as a whole for departure were not substantial and compelling reasons to depart
in this case." In response, Theurer maintains the sentencing court "addressed appropriate
evidence within the scope of the statutes and in furtherance of the purpose and principals
of the guidelines."
KANSAS LAW REGARDING DEPARTURE DECISIONS AND APPELLATE REVIEW
We begin with a summary of Kansas law applicable to departure decisions and our
standards of appellate review. "[T]he sentencing judge shall impose the presumptive
sentence" provided by the RKSGA unless the judge finds "substantial and compelling
reasons to impose a departure sentence." K.S.A. 2013 Supp. 21-6815(a). If the sentencing
court determines that a departure is warranted, it must "state on the record at the time of
sentencing the substantial and compelling reasons for the departure" and make findings
of fact as to those reasons. K.S.A. 2013 Supp. 21-6815(a); K.S.A. 2013 Supp. 21-
6817(a)(4). When there is a conflict between the reasons articulated in the written journal
entry and those provided by the sentencing court at the hearing: "'The court's comments
at the time of sentencing, not the written journal entry, govern as to the reasons for
departure.' [Citations omitted.]" State v. Spencer, 291 Kan. 796, 811, 248 P.3d 256
(2011).
A departure sentence will be upheld on appeal if any of the mitigating factors
articulated by the sentencing court is substantial and compelling. State v. Bird, 298 Kan.
393, 398, 312 P.3d 1265 (2013). Conversely, each individual factor need not be
sufficient, standing alone, to justify the departure sentence if the reasons collectively
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constitute a substantial and compelling basis for departing from the presumptive
sentence. 298 Kan. at 398.
A substantial and compelling reason to depart downward from the presumptive
sentence is a "'mitigating factor.'" K.S.A. 2013 Supp. 21-6803(n). K.S.A. 2013 Supp. 21-
6815(c)(l) contains a nonexclusive list of five mitigating factors, which a district court
may consider when determining whether substantial and compelling reasons exist for a
departure sentence. Sentencing courts may also consider nonstatutory factors "'as long as
there is evidence in the record to support such factors and the use of the factors would be
consistent with the intent and purposes of the sentencing guidelines.' [Citations omitted.]"
State v. Hines, 296 Kan. 608, 616, 294 P.3d 270 (2013). A sentencing court's use of
statutory factors should not be reviewed with greater deference than a decision to rely
upon nonstatutory factors, and the use of nonstatutory factors should not be subjected to
stricter scrutiny. State v. Martin, 285 Kan. 735, 747, 175 P.3d 832 (2008).
The standard of appellate review of a departure sentence depends on the question
raised. An appellate court applies a substantial competent evidence standard when the
question on appeal is whether the record supports the particular reasons for departure
articulated by the sentencing court. Bird, 298 Kan. at 397. Substantial competent
evidence is evidence possessing both relevance and substance that a reasonable person
could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862,
269 P.3d 1260 (2012). Appellate review is de novo, however, when the question involves
making a determination whether a particular mitigating factor found by the sentencing
court "can 'ever, as a matter of law, be substantial and compelling in any case.'" Bird, 298
Kan. at 397-98. Finally, when the record supports the reasons behind the departure and
those reasons are legally valid, an appellate court utilizes an abuse of discretion standard
to decide whether the sentencing court based its conclusion that substantial and
compelling reasons warranted a departure upon a proper weighing of the mitigating
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factors. 298 Kan. at 398; State v. Rochelle, 297 Kan. 32, 45-46, 298 P.3d 293, cert.
denied 134 S. Ct. 270 (2013).
A judicial action, such as a sentencing court's decision to grant dispositional
departure sentences, constitutes an abuse of discretion
"if [the] judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable
person would have taken the view adopted by the trial court; (2) is based on an error of
law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an
error of fact, i.e., if substantial competent evidence does not support a factual finding on
which a prerequisite conclusion of law or the exercise of discretion is based." State v.
Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
If an appellate court concludes the sentencing court's "factual findings are not
supported by the evidence in the record or do not establish substantial and compelling
reasons for a departure," the appellate court must "remand the case to the [sentencing]
court for resentencing." K.S.A. 2013 Supp. 21-6820(f).
Finally, to the degree we must interpret the governing Kansas statutes, our review
is unlimited. See State v. Andry, 295 Kan. 733, 735, 286 P.3d 207 (2012).
KANSAS LEGISLATIVE POLICY AND LEGAL STANDARDS REGARDING SENTENCING
We begin with the State's argument regarding what it calls "policy standards,"
meaning legal standards relating to sentencing established by the Kansas Legislature as a
matter of public policy. The State contends the sentencing court "did not apply the correct
policy standards when considering whether there [were] substantial and compelling
reasons to grant a dispositional departure." In the State's view, this error is shown, in part,
by the sentencing court's citing and quoting from an inapplicable statute, K.S.A. 2013
Supp. 21-6601, at the beginning of its ruling. In citing this statute, the State maintains the
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sentencing court erroneously stated that Kansas sentencing statutes should be liberally
construed to focus on a defendant's "'characteristics, circumstances, needs and
potentialities . . . .'" See K.S.A. 2013 Supp. 21-6601.
In response, Theurer concedes that "[t]he State's technical contention is accurate:
the departure statutes do not fall within the range of statutes to which the quoted language
applies." But Theurer contends the correct statutory language, K.S.A. 2013 Supp. 21-
6802(a) and (b), "does not remove all discretion from the trial court to consider individual
characteristics as the State suggests."
At the beginning of the hearing, the sentencing judge said he would determine
Theurer's sentences
"in light of the statute that requires how courts are to construe the sentencing statutes.
"And I'm just going to quote from the statute: It says—it makes it clear—K.S.A.
21-6601—Legislative policy to be followed is to be liberally construed to the end that
persons convicted of crimes shall be dealt with in accordance with the individual
characteristics, circumstances, needs, and potentialities as revealed by case studies; that
dangerous offenders be correctly treated in custody for long terms as needed; and that
other offenders shall be dealt with by probation, suspended sentence, fined, or assignment
to a community correctional service program whenever such disposition appears
practicable and not detrimental to the needs of public safety and the welfare of the
offender." (Emphasis added.)
The State highlights the sentencing court's omission of the opening clause of the statute:
"K.S.A. 2013 Supp. 21-6601 through 21-6629, and amendments thereto, shall be liberally
construed . . . ." (Emphasis added.) K.S.A. 2013 Supp. 21-6601.
On appeal, both parties agree the sentencing court erred because K.S.A. 2013
Supp. 21-6601 did not pertain to the sentencing statutes in this case. Although Theurer
18
argues the error was "technical," we disagree. A brief historical review reveals that
K.S.A. 2013 Supp. 21-6601 reflects an earlier, different sentencing policy from that
which currently is found in the Revised Kansas Sentencing Guidelines Act (RKSGA)
K.S.A. 2013 Supp. 21-6801 et seq., and its predecessor, the Kansas Sentencing
Guidelines Act (KSGA), K.S.A. 21-4701 et seq.
The language now found in K.S.A. 2013 Supp. 21-6601 was first enacted in 1969
as part of a general recodification of Kansas criminal law. See K.S.A. 21-4601 (Weeks);
L. 1969, ch. 180, sec. 21-4601. The 1969 version of the statute began by stating: "This
article shall be liberally construed . . . ," meaning article 46, which was the article
controlling sentencing. (Emphasis added.) See K.S.A. 21-4601; L. 1969, ch. 180, sec. 21-
4601. The statute still began this way in 1992 when the KSGA was enacted, but the
KSGA was set out in a new article 47, K.S.A. 21-4701 et seq., again demonstrating the
inapplicability of the statutory language quoted by the sentencing court to the sentencing
guidelines in Kansas. See, e.g., K.S.A. 21-4701; K.S.A. 21-4702; L. 1992, ch. 239, secs.
1-2.
Sentencing under the 1969 Kansas Criminal Code was indeterminate, meaning
"[d]iscretion was vested in the sentencing judge to establish the minimum and maximum
term of the sentence, within the limits set by the statute." State v. Van Winkle, 256 Kan.
890, Syl. ¶ 9, 889 P.2d 749 (1995); see White v. Bruce, 23 Kan. App. 2d 449, 453, 932
P.2d 448 (distinguishing "pre-guidelines indeterminate sentence" from "a new guidelines
determinate sentence") rev. denied 262 Kan. 970 (1997). Indeterminate sentencing
reflected a legislative policy shifting "the balance toward rehabilitation as the primary
goal of sentencing." Note, Sentencing Felons to Imprisonment Under the Kansas
Criminal Code: The Need For a Consistent Sentencing Policy, 10 Washburn L.J. 269,
273 (1971). "As a necessary prerequisite to a correctional program aimed at rehabilitating
the offender," it was "essential that the sentence be tailored to the offender." 10
Washburn L.J. at 273. Thus, the legislature enacted the language now found in K.S.A.
19
2013 Supp. 21-6601, directing liberal construction of sentencing statutes "to the end that
persons convicted of crime shall be dealt with in accordance to their individual
characteristics, circumstances, needs, and potentialities . . . ." (Emphasis added.) K.S.A.
21-4601; L. 1969, ch. 180, sec. 21-4601; see 10 Washburn L.J. at 273.
Importantly, however, the Kansas Legislature eventually reappraised its "departure
from the traditional pattern of equating sanctions with the crime." 10 Washburn L.J. at
273. In 1989, the legislature created the Kansas Sentencing Commission (KSC) and
directed it to "develop a sentencing guideline model or grid based on fairness and
equity . . . . The sentencing guideline model or grid shall establish rational and consistent
sentencing standards which reduce sentence disparity, to include, but not be limited to,
racial and regional biases which may exist under current sentencing practices." K.S.A.
1989 Supp. 74-9101; L. 1989, ch. 225, sec. 1.
The KSC submitted its report to the legislature on January 15, 1991. See State v.
Soler, 25 Kan. App. 2d 1, 6, 957 P.2d 516 (1998). Among the goals of the proposed
guidelines were not only to "ensure the elimination of any racial, geographical or other
bias that may exist," but also to "establish sentences that are proportional to the
seriousness of the offense and the degree of injury to the victim." (Emphasis added.)
Recommendations of the Kansas Sentencing Commission, ch. 1, p. 2 (January 15, 1991).
The KSC noted that "[m]aking the punishment proportional to the crime is a key
ingredient in guidelines systems. This concept involves the development of a hierarchy of
harms that result from different levels of criminal activity. Once this ordering process
takes place, guideline sentences ensure that the punishment fits the harm." (Emphasis
added.) Recommendations of the Kansas Sentencing Commission, ch. 1, p. 3. The KSC
also stated: "Like proportionality, fairness is a key concept. . . . When factors external to
the crime come into play, punishment may become a function of employment status,
marital status, amount of education, or a subjective assessment of one's chances for
20
rehabilitation." (Emphasis added.) Recommendations of the Kansas Sentencing
Commission, ch. 1, pp. 3-4.
In 1992, as previously noted, the Kansas Legislature adopted the sentencing
guidelines approach by enacting the KSGA. Notably, the KSGA strongly emphasized the
characteristics of the crime or case rather than the characteristics of the individual
defendant: "The sentencing guidelines . . . shall apply equally to all offenders in all parts
of the state, without discrimination as to any element that does not relate to the crime or
the previous criminal record of the defendant." K.S.A. 21-4702; see generally State v.
Favela, 259 Kan. 215, 233-34, 911 P.2d 792 (1996).
In 2007, the legislature created the Kansas Criminal Code Recodification
Commission (KCCRC) to recodify the Kansas Criminal Code generally. See K.S.A. 21-
4801; L. 2007, ch. 197, sec. 8. Following the KCCRC's recommendations, the RKSGA
restates the KSGA's direction that the sentencing guidelines "shall apply equally to all
offenders in all parts of the state," but it omits the prior language forbidding
discrimination as to any element that does not relate to the crime. K.S.A. 2013 Supp. 21-
6802(a); Kansas Criminal Code Recodification Commission, Final Report, Appendix A,
p. 382 (December 16, 2010) (http://www.kansasjudicialcouncil.org/Resources.shtml).
The RKSGA also directs that "[t]he sentencing court may consider in all cases a
range of alternatives with gradations of supervisory, supportive and custodial facilities at
its disposal so as to permit a sentence appropriate for each individual case, consistent
with these guidelines and the permitted dispositional and durational departures contained
in [this Act]." K.S.A. 2013 Supp. 21-6802(b). These changes appear to reflect a more
balanced, case-based view of sentencing, in line with the KCCRC's recommendation that
a sentence should "enhance public safety through deterrence of future criminal action, . . .
rehabilitate the offender, and . . . appropriately punish [the offender] for committing the
offense." Kansas Criminal Code Recodification Commission, Final Report, p. 28.
21
One should not mistake the RKSGA's continued emphasis on the individual
criminal case, meaning the facts surrounding the crime, with the personal characteristics
of the individual defendant, wholly apart from the case. See K.S.A. 2013 Supp. 21-
6802(a)-(b). Indeed, a review of the RKSGA's nonexclusive mitigating factors which
may be considered by the sentencing court in making a departure decision underscores
the importance the legislature has placed on the individual facts of the particular criminal
case.
The RKSGA repeats verbatim the nonexclusive list of mitigating factors from the
KSGA. See K.S.A. 2013 Supp. 21-6815(c)(1)(A)-(E); K.S.A. 21-4716(c)(1)(A)-(E). The
State correctly argues that these factors show a legislative policy to "address
circumstances, behaviors, and facts within the case" rather than "a Defendant's individual
characteristics outside . . . the case" itself. (Emphasis added.)
K.S.A. 2013 Supp. 21-6815(c)(1)(A)-(E) provides:
"(c)(1)Subject to the provisions of subsections (c)(3) and (e), the following
nonexclusive list of mitigating factors may be considered in determining whether
substantial and compelling reasons for a departure exist:
(A) The victim was an aggressor or participant in the criminal conduct associated
with the crime of conviction.
(B) The offender played a minor or passive role in the crime or participated
under circumstances of duress or compulsion. This factor may be considered when it is
not sufficient as a complete defense.
(C) The offender, because of physical or mental impairment, lacked substantial
capacity for judgment when the offense was committed. The voluntary use of intoxicants,
drugs or alcohol does not fall within the purview of this factor.
(D) The defendant, or the defendant's children, suffered a continuing pattern of
physical or sexual abuse by the victim of the offense and the offense is a response to that
abuse.
22
(E) The degree of harm or loss attributed to the current crime of conviction was
significantly less than typical for such an offense." (Emphasis added.)
These five statutory mitigating factors listed in the RKSGA plainly relate to the
unique facts and circumstances of a particular criminal case. Moreover, when referring to
a behavior or characteristic of the particular criminal defendant or victim, the mitigating
factors focus on those behaviors and characteristics as they relate to or impact the
commission of the particular crime.
We believe the legislative policy set forth in K.S.A. 2013 Supp. 21-6802(a) and
(b), and exemplified by the statutory mitigating factors listed in K.S.A. 2013 Supp. 21-
6815(c)(1), is in sharp contrast to the sentencing court's approach in this case which
mistakenly grounded its decisionmaking based on an inapplicable statute, K.S.A. 2013
Supp. 21-6601. This error of law caused the sentencing court to mistakenly fixate on the
personal qualities and characteristics of Theurer unrelated to the defendant's deplorable
criminal conduct which caused the deaths of Young and Stanley.
The sentencing judge's approach was best summarized by his statement to Theurer
at sentencing that "you are an exceptional person that I find to be an atypical case." This
finding was also repeated in the journal entry of judgment: "Court finds Defendant an a-
typical case." In essence, for the sentencing court, Theurer was the case. The sentencing
court's departure decision was reducible to a single overriding consideration wholly apart
from the egregious facts and circumstances of this involuntary manslaughter case:
Theurer was an "exceptional person."
Not only did the sentencing court's error of law mistakenly cause it to focus on
Theurer as an exceptional person, without appropriate consideration given to the
particular facts and circumstances of his involuntary manslaughter convictions, the
23
sentencing court's finding of exceptionalism was predicated on the notion that Theurer
had the potential to be of great benefit to society.
The sentencing judge told Theurer:
"[T]he totality of all of the facts of your life up to this point, . . . [provided] substantial
[and] compelling reasons when considered in their totality.
....
"What I think is best for society is that you get your degree, that you realize that
you have a lot of good to do with your life . . . . I think this might be a start where, if you
do as I think you can, as you are such an atypical, such a unique person with such skills,
that I think maybe you can touch some people out there."
On appeal, Theurer highlights the character reference letters which focus
"on the cost to society that would occur from [Theurer] being incarcerated rather than
fulfilling his promise, and specifically many of the authors urged the court to fashion a
sentence that would allow [Theurer] to complete his degrees so that he could go on to be
of significant benefit to society."
Theurer was deemed to be an exceptional person meriting dispositional departure
sentences because, in large measure, he exhibited the potential to perform extraordinary
good work in society. But the fact that a defendant has the potential to be of great benefit
to society is not a statutory mitigating factor justifying a departure sentence. Moreover,
we know of no caselaw wherein such a reason was found by a Kansas appellate court to
be a nonstatutory mitigating factor.
Of course, a nonstatutory factor may be employed by a sentencing court if the use
of the factor is consistent with the intent and principles of the sentencing guidelines. Bird,
24
298 Kan. at 399. Our Supreme Court has recently identified some of the underlying
principles of the sentencing guidelines:
"[I]ncarceration should be reserved for serious/violent offenders who present a threat to
public safety; sanctions should be imposed based on harm inflicted; sanctions should be
uniform and not related to socioeconomic factors, race, or geographic location; penalties
should be clear so as to be understood; individuals should not be sent to prison solely to
gain education or job skills; and the system must be rational to allow policymakers to
allocate resources. [Citation omitted.]" (Emphasis added.) 298 Kan. at 399.
Moreover, our Supreme Court has recognized three legislative purposes of the
sentencing guidelines: "(1) to reduce prison overcrowding; (2) to protect public safety,
and (3) to standardize sentences so similarly situated offenders are treated the same."
(Emphasis added.) 298 Kan. at 399.
There is nothing in the statutory language of the RKSGA which suggests that a
criminal defendant who is an exceptional person based on a potential to benefit society
merits a finding of mitigation. Moreover, the use of this factor is inconsistent with the
intent and principles of the sentencing guidelines. Indeed, the sentencing guidelines
would mean little if the punishment did not fit the crime and similarly situated offenders
were treated unequally because a sentencing court formulated a judicial calculus of each
criminal defendant's social usefulness. If this factor was considered, wide sentencing
disparities would obviously result among defendants of greater or lesser talents, social
and economic status, and personality traits. Accordingly, we hold that a sentencing
court's finding that a defendant is an exceptional person with the potential to provide a
great benefit to society is not a substantial and compelling reason to grant a departure
sentence under the RKSGA.
The sentencing court's failure to follow the applicable legal standards, K.S.A.
2013 Supp. 21-6802 and K.S.A. 2013 Supp. 21-6815(c)(1)(A)-(E), resulted in the district
25
court's erroneous, laser-like focus on Theurer as an exceptional person potentially capable
of benefitting society rather than assessing whether departure sentences were
"appropriate for [this] individual case." See K.S.A. 2013 Supp. 21-6802(b). This, in turn,
resulted in the sentencing court's mistaken conclusion that Theurer's exceptionalism was
a valid nonstatutory mitigating factor that warranted departure sentences. Accordingly,
we hold the sentencing court, by failing to apply the correct legal standards when
considering Theurer's sentences, and by applying an invalid nonstatutory mitigating
departure factor, abused its discretion by basing its judicial decision on errors of law. See
Ward, 292 Kan. 541, Syl. ¶ 3.
INDIVIDUAL REASONS CITED BY THE SENTENCING COURT
FOR GRANTING DEPARTURE SENTENCES
We now turn to the other reasons or factors found by the sentencing court which,
considered collectively, resulted in its ruling that Theurer was deserving of durational
departure sentences. In keeping with our standard of review, we first examine whether
each of the sentencing court's individual reasons for departure was supported by
substantial competent evidence. Next, because the sentencing court found that, standing
alone, none of the individual reasons were substantial and compelling, we consider if the
separate factors which were supported by substantial competent evidence, considered
together, constitute substantial and compelling reasons to depart under the particular facts
of this case.
Diabetic Condition
In his departure motion, Theurer explained that incarceration may have "a
significant negative impact on his health" because his Type 1 diabetes is "difficult to
stabilize, and requires close monitoring." The existence of Theurer's diabetic condition
was uncontroverted, and he currently uses an insulin pump. The sentencing court asked
rhetorically, "Is Mr. Theurer's diabetes a factor that would require departure? Kansas law
26
is clear it's not in and of itself. But a defendant's poor health is related to a defendant's
amenability to incarceration. . . . [I]t's not a sufficient factor, but it is one that can be
considered with others." In context, then, the sentencing court found the presumptive
sentences of imprisonment would adversely affect Theurer's diabetic condition.
On appeal, the State protests "there was not substantial competent evidence to
support the district court's conclusion that [Theurer] had poor health that should prevent
him from serving prison time." Theurer responds that his diabetes was a "nearly life-long
condition" and it was a "struggle to stabilize it."
Without deciding whether diabetes may constitute, in an appropriate case, a valid
mitigating departure factor, we consider whether there was substantial competent
evidence to support the sentencing court's finding that imprisonment would adversely
affect Theurer's medical condition. At the sentencing hearing, the State called Viola
Riggin, the Director of Healthcare for the Kansas Department of Corrections (KDOC), to
testify. Riggin said approximately 500 to 800 inmates have diabetes and that several
hundred have the same Type 1 diabetes as Theurer. Riggin said 12 of these inmates use
an insulin pump.
Riggin testified that the State contracts with Correct Care Solutions (CCS) to
manage inmate healthcare. According to Riggin, since the KDOC is required to "provide
healthcare at any and all levels . . . to maintain the community standard of care," an
inmate essentially receives the same care as other nonincarcerated citizens. She said,
"[I]t's the same as the first floor of any hospital. We have OB/GYN, oncology, dialysis on
site, [endocrinologists, and] family practitioners on site, so we handle anything that we
need to."
Substantial competent evidence did not show Theurer was too ill to be imprisoned
or that the KDOC was unable to effectively treat his diabetes. Other than Theurer's mere
27
assertion that his diabetic condition would negatively impact him in prison, Theurer, who
did not testify, did not offer any evidence demonstrating that his diabetic condition
distinguished him from other felony offenders who suffer from very serious health
conditions while serving their time in prison.
On the other hand, the sentencing court's finding that Theurer's diabetes adversely
affected his amenability to incarceration was directly contradicted by Riggin's testimony
which established that KDOC is fully equipped to provide Theurer with any necessary
medical treatment. Moreover, Riggin also testified that in the event the KDOC cannot
meet an inmate's medical needs on site, the inmates are "taken to outside specialists in the
community."
We conclude the sentencing court's finding that imprisonment would adversely
affect Theurer's diabetic condition was not supported by substantial competent evidence
and, therefore, should not have been considered as a mitigating factor in this case. As a
result, the sentencing court erred by exercising its discretion based on an error of fact.
See State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011) cert. denied 132 S. Ct.
1594 (2012).
Lack of Criminal History
It is uncontroverted that Theurer's criminal history showed no prior convictions or
juvenile adjudications. As a result, for sentencing purposes, Theurer was assigned a
criminal history score of I, the least serious classification under the RKSGA. See K.S.A.
2013 Supp. 21-6809. But the sentencing judge found that Theurer's lack of a criminal
record also should be considered a mitigating factor in the totality of circumstances
justifying departure:
28
"[Theurer] has no prior criminal history. There is not only a lack of felony convictions,
but there is, in fact, no prior misdemeanor convictions, and there is no evidence that he
has ever broken the law before. The State in their response correctly argues that since Mr.
Theurer's Criminal History Score is an I that his past history has clearly and fairly been
taken into account on the criminal sentencing grid. That is correct. But not all history
scores I's are the same. There's absolutely nothing on Mr. Theurer's record. And a
defendant's complete lack of criminal contacts can be considered in departing. It's not a
factor by—in and of itself to justify departure, but it can be considered in the overall
picture." (Emphasis added.)
On appeal, the State reprises its argument before the sentencing court, contending
Theurer's "lack of criminal history was already factored in by the sentencing grid" and it
is, therefore, inappropriate for consideration as a departure factor. Echoing the sentencing
court, Theurer contends substantial competent evidence showed more than just a
nonexistent record of convictions or adjudications. According to Theurer, the evidence
showed "a complete lack of evidence of any criminal behavior." (Emphasis added.)
It is well-settled law that "a defendant's criminal history cannot be used as
justification for a departure sentence when the sentencing guidelines have already taken
the defendant's criminal history into account in determining the presumptive sentence
within the grid." State v. Richardson, 20 Kan. App. 2d 932, 941, 901 P.2d 1 (1995). In
this case, Theurer received favorable consideration under the sentencing guidelines for
his lack of prior convictions or juvenile adjudications.
The sentencing court, however, may consider facets of the defendant's criminal
history that the guidelines do not factor into the calculation of the defendant's criminal
history score. 20 Kan. App. 2d at 941. For example, in Richardson, the sentencing court
found that, depending on the facts of the case, the lengthy period of time that elapses
since a defendant's last felony conviction may provide a substantial and compelling
29
reason for a departure because such a factor ventures "beyond the type and number of
offenses" in the defendant's criminal history. 20 Kan. App. 2d at 941.
The evidence before the sentencing court in this case, however, did not show a
"complete lack of evidence of any criminal behavior." (Emphasis added.) Substantial and
compelling evidence was to the contrary. According to the Pawnee Mental Health
Services drug and alcohol evaluation, Theurer admitted that he started drinking alcohol at
the age of 17. This was a violation of Kansas law. See K.S.A. 2013 Supp. 41-727 ("[N]o
person under 21 years of age shall possess, consume, obtain, purchase or attempt to
obtain or purchase alcoholic liquor or cereal malt beverage except as authorized by
law."). Theurer reported that he stopped drinking at the age of 24. Thus, by his own
admission, Theurer was illegally drinking alcoholic or cereal malt beverages 4 years prior
to reaching the legal drinking age in Kansas.
We do not find substantial competent evidence to support the sentencing court's
finding that "there is no evidence [Theurer] has ever broken the law before" or that his
criminal history was "beyond the type and number of offenses" already incorporated into
his criminal history score. See Richardson, 20 Kan. App. 2d at 941. As a result, this
reason should not have been considered a mitigating factor by the sentencing court. The
sentencing court erred by exercising its discretion based on an error of fact. See Ward,
292 Kan. 541, Syl. ¶ 3.
Threat to Public Safety
At the sentencing hearing, the judge stated, "I think the Court can find that Mr.
Theurer is not a threat to public safety, that he accepts his responsibility, and that it's
doubtful he would present a threat to public safety in the future based on the LSI-R and
the Pawnee report." On appeal, citing much of the evidence presented at the sentencing
30
hearing, Theurer argues this evidence "demonstrated substantial . . . support for the
[sentencing] court's finding that this defendant is no threat to society."
At the outset, a defendant's lack of danger to the public may constitute a valid
mitigating factor in a sentencing court's decision to impose departure sentences. See State
v. Bird, 298 Kan. 393, 400, 312 P.3d 1265 (2013); State v. Murphy, 270 Kan. 804, 807-
09. 19 P.3d 80 (2001), overruled on other grounds by State v. Martin, 285 Kan. 735, 175
P.3d 832 (2008).
Theurer supports his argument, in part, by quoting from character reference letters,
which in numerous instances extolled his "propensity for public speaking," his potential
benefit to society, his academic abilities, his supportive family, and personal qualities.
Theurer cites another letter which "explained that only one or two students per year at
most have undertaken to obtain both the veterinary degree and the Ph.D. degree
simultaneously, which path Mr. Theurer has pursued in order to be an effective leader in
beef cattle veterinary medicine." In sum, Theurer argues these letters demonstrate his
"ability to do great things for humanity."
We are persuaded this evidence did not sufficiently support the specific factor at
issue. Young and Stanley were not killed because Theurer is well-educated and a
captivating speaker, shows promise in veterinary medicine, or has family support. Young
and Stanley were killed because, despite all of these noteworthy qualities and Theurer's
"ability to do great things for humanity," Theurer drove recklessly at a high speed going
the wrong way on a highway while extremely intoxicated. That is the particular threat to
public safety at issue here.
Most relevant and probative of the factor of whether Theurer is a threat to public
safety are the nature of the crimes of conviction and evidence relating to Theurer's
31
excessive use of alcohol which played a critical role in the involuntary manslaughter
deaths of Young and Stanley.
Prior to sentencing, Theurer was referred by his defense counsel to the Pawnee
Mental Health Service for an alcohol and drug evaluation. Robert Wisdom conducted a
90-minute evaluation of Theurer. The results of his evaluation were reported in a three-
page document provided to the sentencing court.
In particular, the report stated that following the collision Theurer completed a "32
hour on line 'alcohol class' suggested by his attorney." Under the category "Alcohol/Drug
History" was stated:
"[Theurer r]eports he [first] consumed alcohol at age 17 and most recently drank at the
end of January, 2013. Reports his usual drinking pattern prior to his stopping consisted of
having 4-6 beers or drinks on a weekend night with friends 2-3 times a month. Admits he
has had alcohol related memory blackouts on a couple of occasions, but denies any
history of withdrawal. He denies any history of illegal drug use." (Emphasis added.)
As part of the evaluation, Theurer was asked to complete the Substance Abuse
Subtle Screening Inventory (SASSI). This test is described as "an objective measure
designed to differentiate substance abusers from non-abusers." The SASSI profile
indicated a "'low probability'" that Theurer had a substance dependence disorder.
Theurer also completed the Michigan Alcoholism Screening Test (MAST), which
is described as "a 22-item questionnaire designed to provide a rapid and effective
screening for lifetime alcohol-related problems and alcoholism." Theurer scored a 3.
According to the MAST, "Scores between 3-5 suggest early or middle problem alcohol
use." With regard to this test result, Wisdom remarked: "Testing suggests possible early
problem drinker, but this score is influenced by his legal situation." No explanation for
Wisdom's comment was provided to the sentencing court.
32
Wisdom gave an Axis I primary diagnosis of "alcohol abuse, early full remission"
and a secondary diagnostic impression of "Adj disord mixed anxiety, depress" which we
assume to be an adjustment disorder with mixed anxiety and depression.
Wisdom recommended Theurer receive outpatient counseling to help him
"establish a sober lifestyle and discuss options for sober socializing" and that Theurer
"abstain from alcohol or any illegal drug use." The evaluator provided the following
prognosis: "Considering that Mr. Theurer denies that he has consumed alcohol for
several months and feels remorse for the DUI fatalities, the prognosis is generally good
that [Theurer] will not be driving after drinking in the foreseeable future." Of note,
Wisdom did not mention what importance, if any, the test results had in the formulation
of his prognostication.
Was there substantial competent evidence that Theurer is not a threat to public
safety? The answer to that question begins with the events of May 13-14, 2012. Theurer
was convicted of two counts of involuntary manslaughter. It is an understatement to
observe that, by statutory definition, the crime of involuntary manslaughter is violent,
given that it results in the loss of human life. This factual context sharply contrasts with
cases like Bird, where the "nonviolent nature" of the crime of conviction (cocaine
possession) supported a finding that the defendant posed no threat to society. Bird, 298
Kan. at 400.
Next, it is apparent that Theurer's potential to threaten public safety is inextricably
linked to his excessive consumption of alcohol. Although, to date, Theurer has only
admitted to drinking two beers during the several hours he was at the Mustang
Gentlemen's Club, within 2 hours after the collision he had a blood-alcohol level of .19.
This test result is more than twice the legal limit for alcohol consumption while driving.
See K.S.A. 2011 Supp. 8-1567(a)(2). Obviously, this was a very high level of
intoxication.
33
While Theurer has portrayed that evening as an uncharacteristic, single lapse of
judgment, the evidence shows that Theurer has a notable history of underage drinking
prior to reaching age 21. Similar to the evening of the collision, Theurer admitted he
would occasionally drink excessively, four to six beers or mixed drinks in an evening.
While periodic, this was not inconsequential drinking of alcoholic beverages. Of special
concern, and further corroboration of Theurer's custom to excessively drink alcohol off
and on, was evidence that Theurer experienced "alcohol related memory blackouts on a
couple of occasions" prior to the collision. Moreover, according to Theurer, he only
stopped drinking in January 2013. Given that Young and Stanley were killed on May 14,
2012, as a result of Theurer's highly intoxicated condition, the evidence was
uncontroverted that more than 6 months after the victims' deaths, Theurer had continued
his practice of drinking alcoholic beverages.
In light of this evidence, including the deadly nature of the crimes Theurer
committed, we find the two conflicting alcohol evaluation results do not provide
substantial competent evidence that Theurer is not a danger to public safety. While the
SASSI profile indicated a "low probability" that Theurer had a substance dependence
disorder, the MAST test, designed to screen for lifetime alcohol abuse and alcoholism,
indicated that Theurer exhibited "early or middle problem alcohol use." These
inconsistent test results, given the uncontroverted history of Theurer's episodic excessive
alcohol consumption, provide scant support for the proposition that Theurer does not
pose a risk to public safety based on the serious consequences of driving while
intoxicated.
There was clearly some threat to public safety, which the sentencing judge tacitly
acknowledged in his concluding words to Theurer:
"I hope that you can completely abstain from the use of alcohol. I hope that you never
touch a drop of alcohol again. I hope that you can lead a life that's alcohol free and set the
34
example for everybody else out there, that you don't need alcohol. And if you do this,
then that is what I hope. And if you don't, then you'll make a fool out of the whole
system."
We conclude the record, considered as a whole, does not provide substantial
competent evidence to support the sentencing court's factual finding that Theurer was not
a threat to public safety. As a result, this reason should not have been considered a
mitigating factor. The sentencing court erred by basing its discretion on an error of fact.
See Ward, 292 Kan. 541, Syl. ¶ 3.
Acceptance of Responsibility
The sentencing court found that Theurer "expressed remorse" as proof that he had
accepted responsibility for his criminal conduct. On appeal, Theurer argues "[t]here is
substantial competent evidence of record to show that the defendant accepted
responsibility for his crimes, including his statement to the court at sentencing and his no
contest plea[s]."
A defendant's acceptance of responsibility may be a mitigating factor in support of
a departure sentence. Bird, 298 Kan. at 398-99.
We question whether Theurer's no contest pleas are proof of his acceptance of
responsibility. These pleas were "a formal declaration that the defendant does not contest
the charge." K.S.A. 22-3209(2). Thus, a no contest plea "is a plea where the defendant
does not expressly admit his or her guilt to the charge." (Emphasis added.) State v. Case,
289 Kan. 457, Syl. ¶ 3, 213 P.3d 429 (2009). Indeed, by pleading no contest Theurer
conspicuously avoided admitting his legal responsibility for the deaths of Young and
Stanley. Moreover, Theurer obtained a very favorable outcome because of his no contest
pleas, which included pleading to only two of the charged crimes, obtaining in return
dismissal of the aggravated battery charges for the serious injuries he caused his
35
passengers, immunity from prosecution for any other charges, and a recommendation of
concurrent sentences.
Theurer also points to his personal statement at sentencing. We only have the
written record of sentencing, and appellate courts generally do not pass on credibility
issues. See State v. Jones, 295 Kan. 1050, 1057-58, 288 P.3d 140 (2012). However,
because Theurer has directed us to his statement, we will consider his words.
Theurer stated remorse for his actions and their consequences, but he did not dwell
on expressions of personal fault for causing the deaths of Stanley and Young. He was
sorry for "the actions that led to the tragic accident," regretted "what occurred during
those early morning hours," and hoped to have "the opportunity to . . . explain the
nightmare that I have been through" and its consequences. When Theurer did admit fault,
it was for a "tragic, dumb mistake," or a "lapse of judgment," Theurer's statements to the
sentencing court are also noteworthy because they mirrored his three-sentence response
in the PSI questionnaire when he was asked to provide his version of the crimes. Theurer
wrote: "I made a mistake. I consumed alcohol and drove my vehicle. I am truly sorry for
all the consequences."
Theurer's oral and written statements accepting responsibility are remarkable for
their brevity and minimization. His nondescript statements also did not include any
recantation or clarification of his exculpatory statement to Officer Sanders that during
almost 7 hours between the time he arrived at the Mustang Gentlemen's Club and the
collision that killed Young and Stanley, he only drank two beers. Moreover, our review
of the record on appeal reveals that Theurer has not admitted that he drank to excess, was
intoxicated, or drove recklessly at the time he caused the collision which killed Young
and Stanley.
36
Suffice it to say, we discern a marked difference between this record and the
record in Bird, where our Supreme Court found substantial competent evidence that a
defendant had accepted responsibility:
"Contrary to the State's argument, the record includes evidence of acceptance of
responsibility with respect to the controlling drug crime on which the district court
departed. Specifically, the record shows that Bird pled guilty to the controlling crime of
cocaine possession, saving the State and its witnesses significant trial preparation, time,
and expense. Further, at the sentencing hearing, when questioned under oath by defense
counsel, Bird acknowledged that the baggie containing cocaine residue that led to his
possession conviction was found in his home and that he had prior drug convictions and
problems, and he went so far as to say that he was 'surely more than guilty.' Bird was
directly asked by defense counsel, 'You don't deny your responsibility?' He replied, 'No
doubt.'" 298 Kan. at 399-400.
Unlike the defendant in Bird, Theurer did not formally admit his guilt to the
underlying facts in court. His expressions of remorse, given the overwhelming evidence
of his guilt and the harm which resulted from the deaths of Young and Stanley seem
muted by comparison. Still, the sentencing judge was in the best position to evaluate
Theurer's credibility and he found, "I think there is no doubt in anybody's mind that Mr.
Theurer is remorseful."
We conclude there was substantial and competent evidence to support the
sentencing court's finding that Theurer accepted responsibility for his criminal conduct.
Whether this individual factor, together with the other factors relied on by the sentencing
court, provided sufficient grounds to impose durational departure sentences rather than
imprisonment is considered later.
37
Amenability to Rehabilitation
In the district court, Theurer asserted he was highly amenable to rehabilitation
because he had demonstrated "an increased understanding and awareness of the nature
and consequences of his actions," as shown by his completion of a 32-hour on-line drug
and alcohol awareness course and a 90-minute alcohol and drug evaluation. Theurer
further explained that as part of his rehabilitation efforts, he had attempted, "on numerous
occasions," to inform others "about the terrible mistake he made the night of the
accident."
The sentencing court found that Theurer's rehabilitation efforts were, under the
totality of the circumstances, a substantial and compelling reason to impose departure
sentences. The sentencing court explained:
"Defendant's rehabilitative efforts: It was mentioned that Mr. Theurer has—it's
been a year since this accident occurred, and he's not been in trouble. He's gone to school,
worked on his degree, and preparing for this day, and has presented to the Court through
his attorney a proposal that during—instead of being sitting in prison for the next three
years—approximately three years—that he go out into society to high schools, to
colleges, universities, to whoever, and tell them his story, to educate them, and . . . put a
face with the person.
". . . Mr. Theurer would be, and it's been proposed, an excellent person to speak.
People have described him in the letters as an 'impactful speaker' with the 'ability to
capture an audience.' He's 'well-spoken.' He will 'be an advocate against drunk driving' if
allowed to speak. 'When he speaks, people listen.'"
A defendant's amenability to rehabilitation, while not a substantial and compelling
reason to depart from the presumptive guidelines sentence by itself, may be considered in
the overall picture; in other words, a sentencing court may properly consider such
evidence in the totality of circumstances if other factors warrant a departure. State v.
Ussery, 34 Kan. App. 2d 250, 263, 116 P.3d 735, rev. denied 280 Kan. 991 (2005); see
38
also Murphy, 270 Kan. at 806-09, (upholding departure where defendant had been
accepted in Labette Correctional Conservation Camp, noted as having reputation for
"positive results").
Nevertheless, while rehabilitation efforts can serve as a potential factor for
departure, these efforts should be geared towards addressing the defendant's behavior that
caused the crime for which the defendant was convicted. See State v. Chrisco, 26 Kan.
App. 2d 816, 824, 995 P.2d 401 (1999); State v. Alaga, No. 91,360, 2004 WL 2796407,
at *2-3 (Kan. App. 2004) (unpublished opinion).
While Theurer did complete a 32-hour on-line alcohol and drug class suggested by
his attorney and an alcohol and drug evaluation, the sentencing court's rehabilitation
findings were primarily focused on Theurer's potential, due to his speaking ability, to
persuade others to avoid the criminal conduct that led to his convictions. It is unclear and
unstated how Theurer's potential to speak to others about the dangers of driving while
intoxicated exemplifies his amenability to personal rehabilitation.
With this caveat, however, we are persuaded there was some evidence to support
that Theurer undertook two basic rehabilitative efforts prior to sentencing. We will
consider the significance of this individual factor, together with the other factors relied on
by the sentencing court later.
Good Grades, Good Character, Character Reference Letters, and Supportive Family
On appeal, Theurer mentions but does not specifically defend the sentencing
court's findings on the remaining reasons for departure, which include good grades, good
character, character reference letters, and a supportive family. On the other hand, the
State argues "these factors have absolutely nothing to do with the facts and circumstances
within the case."
39
With regard to Theurer's good grades, the transcripts show Theurer maintained a
4.0 GPA through high school and that he achieved excellent grades during his first 4
years at KSU. In the 2011-2012 academic year, however, Theurer earned seven C's, the
first such grades shown. Theurer earned a 2.3 GPA in the fall semester of 2011 and a 2.7
GPA in the spring semester of 2012, both before his commission of the crimes, and a 2.5
GPA in the fall semester of 2012, after the crimes were committed. Nothing in the record
explains the unusual and significant decline in Theurer's grades in the months leading up
to the fatal events of May 14, 2012. Considered over several years, however, there was
evidence that Theurer had a history of achieving good grades.
Regarding Theurer's good character, the evidence primarily consisted of character
reference letters. The State responds: "The Defendant's opportunity filled and affluent
life within a well-connected family is evident in the Defendant's 100 plus letters of
recommendation. . . . The State contends that a defendant with less opportunities,
financial support, and socioeconomic status would not have had access to the letters of
recommendation."
We will not second-guess the sentencing court's evaluation of Theurer's character
based on the letters submitted to the sentencing court. The sentencing court characterized
the letters as "good," and there is evidence supporting that factual finding.
The sentencing court also found that Theurer has a supportive family, and the
State does not dispute that fact. We conclude the sentencing court's finding on this factor
was supported by substantial evidence. Our Supreme Court has indicated, however, that
family support may only qualify as a substantial and compelling factor when combined
with other mitigating factors favoring a departure. See State v. Spencer, 291 Kan. 796,
814-16, 248 P.3d 256 (2011).
40
WHETHER THERE WERE SUBSTANTIAL AND COMPELLING REASONS TO IMPOSE
DEPARTURE SENTENCES IN THIS INVOLUNTARY MANSALAUGHTER CASE
The sentencing court found that none of the individual reasons or factors it relied
on was sufficient, by itself, to warrant the imposition of departure sentences. The
sentencing court concluded that the totality of the reasons, however, showed that Theurer
was an exceptional person deserving of dispositional departure sentences. As a result, we
next consider whether—setting aside those factors which were invalid or for which there
was no substantial competent evidence—the sentencing court's "reasons collectively
constitute a substantial and compelling basis for departure." State v. Bird, 298 Kan. 393,
398, 312 P.3d 1265 (2013). In other words: Does Theurer's acceptance of responsibility,
amenability to rehabilitation, good grades, good character, character reference letters, and
supportive family collectively constitute a substantial and compelling basis for imposing
dispositional departure sentences in this involuntary manslaughter case?
We begin our analysis mindful of our Supreme Court's longtime admonition:
"'"Reasons which may in one case justify departure may not in all cases justify a
departure.' [Citation omitted.] Rather, we must evaluate the offense of conviction, the
defendant's criminal history, and the departure reason stated, as well as the purposes and
principles of the Kansas Sentencing Guidelines."' [Citations omitted]." State v. Martin,
285 Kan. 735, 744, 175 P.3d 832 (2008). We will evaluate the propriety of the sentencing
court's dispositional departure decision in this case in accordance with our Supreme
Court's four-part guideline.
First, the offenses of conviction were two counts of involuntary manslaughter
while driving under the influence of alcohol, a severity level 4 person felony, in violation
of K.S.A. 2013 Supp. 21-5405(a)(3); see K.S.A. 2013 Supp. 8-1567(a)(2). As mentioned
earlier, these are not only crimes of violence, but the violence resulted in the senseless
deaths of two innocent victims, Young and Stanley. The killing of these two individuals
41
in the prime of their lives is undeniably a grievous harm. The significance of this harm is
only heightened in this case, however, when considering that Young and Stanley were
each parents to two young children. The handwritten letters and testimony of Young's
and Stanley's family members eloquently expressed the unquestionable misery and loss
they experienced as a direct result of Theurer's criminal conduct.
The sentencing court was obligated to give appropriate consideration to the
evidence presented by the families of Young and Stanley in this sentencing departure
matter. Our Supreme Court has noted that Article 15, § 15 of the Kansas Constitution
provides that crime victims have a right "'to be heard at sentencing.'" State v. Hines, 296
Kan. 608, 616, 294 P.3d 270 (2013). With particular regard to sentencing departure
hearings:
"K.S.A. 21-4718(a)(1) [now K.S.A. 2013 Supp. 21-6817(a)(1)] provides that '[t]he victim
of a crime or the victim's family shall be notified of the right to be present at the hearing.'
This statute further requires that '[t]he court shall review the victim impact statement.'
Finally, K.S.A. 21-4716(d) [now K.S.A. 2013 Supp. 21-6815(d)] states:
"'In determining aggravated or mitigating circumstances, the court shall
consider:
(1) Any evidence received during the proceeding;
(2) the presentence report;
....
(4) any other evidence relevant to such aggravating or mitigating circumstances
that the court finds trustworthy and reliable.'" (Emphasis added.) 296 Kan. at 617.
The Kansas Constitution, implementing statutes, and our Supreme Court's caselaw
provide victims and their families the right in sentencing matters to inform the sentencing
court of the harmful impact caused by the defendant's criminal conduct. Moreover, with
specific regard to a sentencing court's departure decision, the court shall consider this
42
evidence in exercising its judicial discretion. See K.S.A. 2013 Supp. 21-6815(d); K.S.A.
2013 Supp. 21-6817(a)(1)-(4).
In the present case, the sentencing court personally heard from the victims' family
members and reviewed their written victim impact statements. Without exception, all of
the statements from the victims' families emphasized the need for Theurer to serve a
prison sentence as punishment for his crimes. Especially given the undeniable, life-
altering consequences of Theurer's criminal conduct, we believe the unanimous request
by the family members of Young and Stanley that Theurer receive presumptive sentences
of imprisonment deserved careful consideration in the sentencing court's decision
whether to grant departure sentences.
Continuing with our evaluation of the crimes of conviction, while these crimes
were, by their nature, violent and deadly, a defendant's culpability may vary widely
depending on the facts of the specific case. Here, Theurer's culpability was especially
egregious. Theurer spent about 6 hours at the Mustang Gentlemen's Club during which
time he claimed that he only drank two beers. Theurer told police he stopped drinking
about 30 minutes prior to leaving Junction City to drive to Manhattan, about a 20 mile
trip. Yet, at about 4:30 a.m.—1 hour and 45 minutes after the collision which occurred at
about 2:45 a.m.—Theurer's blood-alcohol level was more than two times the legal limit
permitted under Kansas law. Theurer's truck also contained cans of beer and a bottle of
bourbon in the passenger compartment. In short, there was overwhelming evidence that
Theurer was very intoxicated as he traveled a considerable distance on Kansas roadways
shortly before the fatal collision.
It is also uncontroverted that Theurer's intoxication significantly impaired his
ability to safely drive a motor vehicle. Eyewitnesses reported Theurer's vehicle was
swerving, traveling erratically, and speeding excessively in a construction zone shortly
before the collision. One motorist's repeated efforts to alert Theurer that he was driving
43
on the wrong side of the road by flashing his vehicle's headlights, honking his horn, and
waving his arms were totally ignored. Additionally, there was no evidence indicating that
Theurer attempted to avoid the head-on collision. In short, the evidence of reckless
driving while under the influence of alcohol was overwhelming and uncontroverted.
As part of our evaluation of these two involuntary manslaughter offenses, this case
is also unique given that our Supreme Court has, on numerous occasions over the years,
recognized the Kansas Legislature's efforts to punish intoxicated drivers and the harms
resulting from them. Miller v. Johnson, 295 Kan. 636, 729, 289 P.3d 1098 (2012)
(Johnson, J., concurring in part and dissenting in part) (The legislature "passed tougher
driving under the influence laws to try to get the drunks off of Kansas roads."); Bland v.
Scott, 279 Kan. 962, 974, 112 P.3d 941 (2005) ("We are very aware that deaths and
injuries on our highways caused by intoxicated drivers are a major problem for Kansas
and the nation. In recent years, the legislature has increased the penalties for convictions
of driving under the influence in the effort to reduce the carnage."); Thornton v. Shore,
233 Kan. 737, 753, 666 P.2d 655 (1983) ("Clearly it is strong public policy to remove
drunk drivers from Kansas roads."); State v. Compton, 233 Kan. 690, 699, 664 P.2d 1370
(1983) ("The objective sought to be attained by the legislature is to deter drunken driving
and thus reduce the injuries, death and property damage attributable to it by making the
penalties for DUI certain and severe."). Our Supreme Court has repeatedly acknowledged
the Kansas Legislature's long-standing imperative to punish intoxicated drivers in an
effort to deter deaths, such as the two which occurred in this case.
In summary, consonant with Martin, we have evaluated the involuntary
manslaughter offenses committed by Theurer in this case. We conclude these offenses
were, by statutory definition, violent and deadly felony crimes. Given Theurer's obvious
intoxication, his reckless driving, and the killing of two innocent victims, his criminal
conduct was especially aggravated. These offenses irreparably harmed the victims'
families who, as a result, opposed any departure from presumptive imprisonment.
44
Finally, the Kansas Legislature has repeatedly and consistently focused its attention on
punishing intoxicated drivers due to the dangers they pose on Kansas highways. The
particular facts of this involuntary manslaughter case weigh heavily against departing
from the presumptive sentences of imprisonment.
Next, in keeping with Martin, we consider Theurer's criminal history. As
discussed earlier, Theurer's criminal history, which was factored into the RKSGA
scoring, resulted in the presumptive guidelines sentences of imprisonment. While it is
undisputed that Theurer did not have any prior convictions or adjudications, it is also
apparent (and especially relevant to the crimes of conviction) that prior to committing
two counts of involuntary manslaughter, Theurer violated Kansas liquor laws by drinking
alcoholic beverages from age 17 until age 21. It is unknown whether Theurer's history of
episodic excessive drinking which occasionally resulted in blackouts occurred during this
period or later. Regardless, Theurer's lack of a formal criminal record prior to the
commission of these crimes is unremarkable given his 4 years of illegally consuming
alcoholic beverages while he was under age 21. Considering the cause of this double
fatality collision, we are persuaded that Theurer's history of underage drinking
significantly lessens the weight to be given his lack of a formal criminal record as one
basis for justifying his departure sentences.
Next, we address the third component of the Martin guidelines by collectively
reviewing the mitigating factors relied on by the sentencing court to justify imposition of
the departure sentences. For reasons detailed earlier, while there was some evidence of
Theurer's acceptance of responsibility, there was also evidence to the contrary. In
particular, Theurer's pleas of no contest, his repeated characterization of his crimes as a
"mistake" or "lapse of judgment," and his failure to admit to being intoxicated or even to
driving recklessly at the time of the collision temper the weight that might otherwise have
been accorded this mitigating factor.
45
Similarly, with regard to Theurer's amenability to rehabilitation, more than 1 year
passed after the commission of the crimes until Theurer's sentencing hearing. During that
time, Theurer submitted to a court-ordered 90-minute substance abuse evaluation and
viewed an informational Internet course on alcohol abuse. He also claimed he stopped
drinking alcohol, but that was not until 6 months after the collision. Given Theurer's
underage drinking of alcoholic beverages, his tendency to drink very excessively
episodically, his occasional blackouts due to drinking, and his obvious intoxication at the
time of the crimes, these rehabilitative efforts do not seem overly ambitious. For all of
these reasons, we are persuaded this factor did not provide a compelling basis for
departure in this case.
We understand that Theurer, like many criminal defendants, has a supportive
family. His academic record, at least until the year before the commission of these
crimes, was excellent. And, unlike many criminal defendants, based on the numerous
character reference letters, he also has many friends and acquaintances in the community
who are impressed with his academic achievements, speaking ability, and especially his
potential to contribute to society in the field of agriculture. The sentencing judge relied
on some of these factors in finding that Theurer is "an exceptional person that I find to be
an atypical case." We recognize that good character, family, and community support
ordinarily carry some weight as mitigating factors.
Nevertheless, we are convinced these valid mitigating factors for which there was
substantial competent evidence, taken together, did not warrant departure sentences in
this case. In particular, we believe the sentencing court overlooked important evidence
which called into question the significance of the factors related to Theurer's acceptance
of responsibility and amenability to rehabilitation in the context of this case. With regard
to good character, family, and community support, these factors pale in significance
given the aggravated nature of these crimes and the harms which resulted to Young,
Stanley, and their families. In summary, in a more typical case involving less serious
46
crimes, less culpability, and less deadly consequences, the totality of these mitigating
factors might have supported departure sentences. But that is not the case before us.
Departure reasons must be substantial and compelling. As our Supreme Court has
instructed:
"In order for a mitigating factor to be substantial, the reason must be real, not
imagined, and of substance, not ephemeral. In order to be compelling, the mitigating
factor must be one which forces the court, by the facts of the case, to abandon the status
quo and to venture beyond the sentence that it would ordinarily impose." (Emphasis
added.) Hines, 296 Kan. 608, Syl. ¶ 5.
Taken together, the valid mitigating factors were not particularly substantial, and
they were not compelling because they did not force the sentencing court "by the facts of
the case," see 296 Kan. 608, Syl. ¶ 5, to forsake the presumptive sentences of
imprisonment established by the RKSGA.
Finally, in evaluating the sentencing court's departure decision, we must consider
whether the purposes and principles of the RKSGA justify departure in this case. See
Martin, 285 Kan. at 744. As discussed earlier, the sentencing court did not apply these
purposes and principles but incorrectly cited and applied K.S.A. 2013 Supp. 21-6601.
This mistaken application of law resulted in the sentencing court's undue emphasis on its
view of Theurer as an exceptional person rather than considering the mitigating factors in
context with the deplorable facts and circumstances of this case. One of the underlying
principles of the sentencing guidelines identified by our Supreme Court is that "sanctions
should be imposed based on harm inflicted." Bird, 298 Kan. at 399. For all of the reasons
discussed, the departure sentences granted by the sentencing court were not based on the
harm inflicted upon Young, Stanley, and their families.
47
In conclusion, we hold the sentencing court erred by applying an incorrect legal
standard in sentencing, by relying on departure reasons which were not substantial and
compelling, and by making findings of mitigating factors not supported by substantial
competent evidence. Finally, given the nature of the crimes committed, Theurer's
aggravated culpability in the deaths of two innocent people, and the resulting harm to
Young, Stanley, and their families, we conclude the sentencing court's valid departure
factors, considered collectively, did not force the sentencing court to abandon the status
quo of presumptive imprisonment in order to justify granting Theurer dispositional
departure sentences of probation. See Hines, 296 Kan. 608.
The judgment of the sentencing court is reversed. The sentences are vacated, and
the case is remanded to the district court for resentencing.
48