NOT DESIGNATED FOR PUBLICATION
Nos. 123,001
123,002
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
CASEY SHANE UNGER,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; DAVID L. DAHL, judge. Opinion filed February 12, 2021.
Affirmed.
Submitted by the parties for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and
(h).
Before ARNOLD-BURGER, C.J., GREEN and MALONE, JJ.
PER CURIAM: In this consolidated appeal, Casey Unger appeals (1) the trial court's
decision to deny his request for a dispositional departure and (2) the trial court's decision
to include previous criminal convictions in determining his criminal history score arising
from two Sedgwick County cases—No. 15 CR 2767 and No. 19 CR 1416. Unger moved
for summary disposition under Supreme Court Rule 7.041A (2020 Kan S. Ct. R. 47). The
State responded and asked that we affirm the trial court's judgment. We granted Unger's
motion for summary disposition. Concluding the trial court's decision was reasonable, we
affirm.
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In October 2015, the State charged Unger with three counts of unlawfully
distributing a controlled substance. While Unger was on bond, Sedgwick County
authorities charged him in another case with aggravated assault and domestic battery
from an incident arising in May 2019. Under a plea agreement, Unger pleaded guilty to
one count of distribution in the 2015 case and one count of criminal threat in the 2019
case. The State agreed to dismiss the remaining counts in both cases and to recommend
the low number in the appropriate sentencing grid box on each count. Further, both
parties agreed to recommend that the trial court impose the presumptive sentence in each
case and run the sentences consecutively. At sentencing, Unger requested a durational
and a dispositional departure.
The trial court classified Unger's criminal history score as C in the 2015 case and
G in the 2019 case. The trial court granted Unger a downward durational departure in the
2015 case and sentenced Unger to 49 months' incarceration with 12 months' postrelease
supervision. In the 2019 case, the trial court sentenced Unger to 7 months in prison, but
released him on a 12-month probation term. The trial court ordered this sentence to run
consecutive to his sentence in the 2015 case.
On appeal, Unger first argues that the trial court erred in using his criminal history
without first putting it before a jury and proving it beyond a reasonable doubt. Unger
contends that this violates his constitutional rights as explained in Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Apprendi holds that
other than the fact of a previous conviction, any fact that increases the penalty for a crime
must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 490. Our
Supreme Court adopted the Apprendi analysis in State v. Ivory, 273 Kan. 44, 46-48, 41
P.3d 781 (2002), holding that the use of prior criminal history does not violate a
defendant's constitutional rights. See also State v. Fewell, 286 Kan. 370, 396, 184 P.3d
903 (2008) (affirming Ivory). The court reasoned that previous convictions are a
sentencing factor and not an element of the crime. Ivory, 273 Kan. at 46. Thus, the trial
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court did not err in using Unger's prior criminal history to determine his sentence under
the Kansas Sentencing Guidelines Act.
Second, Unger argues that although the trial court granted his departure motion by
imposing a durational departure sentence, the trial court abused its discretion by denying
his request for a dispositional departure in the 2015 case. This court has jurisdiction to
review an appeal from a departure sentence under K.S.A. 2020 Supp. 21-6820(a). See
State v. Looney, 299 Kan. 903, 909, 327 P.3d 425 (2014) (holding departure sentence
subject to appellate review unless divested by more specific provision of statute). This
court reviews the extent of a departure under an abuse of discretion standard. See State v.
Ibarra, 307 Kan. 431, 433, 411 P.3d 318 (2018). An abuse of discretion occurs when
judicial action "(1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law;
or (3) is based on an error of fact." State v. Miller, 308 Kan. 1119, 1138, 427 P.3d 907
(2018). The party asserting the trial court abused its discretion bears the burden of
showing an abuse of discretion. State v. Ballou, 310 Kan. 591, 615, 448 P.3d 479 (2019).
On appeal, Unger contends that no reasonable person would have denied his
request for a dispositional departure because he (1) has a supportive family who would
provide guidance while on probation, (2) was prepared to address his drug addiction and
health issues by participating in various outpatient treatments, and (3) obtained
employment and had the ability to keep working while on probation. Unger is essentially
asking this court to reweigh the evidence in his attempt to justify a greater departure.
Kansas law provides that "the sentencing judge shall impose the presumptive
sentence provided by the sentencing guidelines unless the judge finds substantial and
compelling reasons to impose a departure sentence." K.S.A. 2020 Supp. 21-6815(a).
"Substantial" means something real, not imagined; something with substance, not
ephemeral, while "compelling" means that the court is forced, by the facts of the case, to
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leave the status quo or go what is beyond ordinary. State v. Powell, 308 Kan. 895, 914,
425 P.3d 309 (2018).
The trial court considered Unger's stated reasons for departure and determined that
the plea agreement and Unger's supportive family to be substantial and compelling
reasons for a durational departure. Just because a durational departure is warranted,
however, does not necessarily mean that a dispositional departure is also appropriate. See
State v. Allen, No. 118,774, 2019 WL 986038, at *2 (Kan. App. 2019) (unpublished
opinion) (granting durational departure but denying dispositional departure because
defendant not amenable to probation), rev. denied 310 Kan. 1063 (2019).
Here, it is clear that the trial court did not abuse its discretion. The trial court made
clear that Unger violated the law, finding that the severity of Unger's offenses did not
justify substantial and compelling reasons for a dispositional departure. Further, the trial
court did not believe that Unger was amenable to probation as Unger committed the
offenses in the second case while on bail in the initial case.
Based on this information, a reasonable person could have reached the same
conclusion as the trial court. While Unger provided substantial and compelling reasons to
support a durational departure, those same reasons did not support a dispositional
departure. The trial court did not abuse its discretion in denying Unger's request for a
dispositional departure.
Affirmed.
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