NOT DESIGNATED FOR PUBLICATION
No. 123,194
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ERNEST CHARLES KLIMA,
Appellant.
MEMORANDUM OPINION
Appeal from Barton District Court; CAREY L. HIPP, judge. Opinion filed April 30, 2021.
Affirmed.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Douglas A. Matthews, assistant county attorney, M. Levi Morris, county attorney, and Derek
Schmidt, attorney general, for appellee.
Before HILL, P.J., BRUNS and SCHROEDER, JJ.
PER CURIAM: Ernest Charles Klima appeals the district court's denial of his
motion for a dispositional departure to probation. Klima claims the district court abused
its discretion in denying his motion for a dispositional departure to probation because
community-based supervision was available to meet his personal needs given his poor
health conditions. Upon review of the record, we find no abuse of discretion by the
district court. We affirm.
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FACTS
In March 2020, a police officer contacted Klima in the local Walmart and arrested
him for an outstanding warrant. As Klima proceeded to the front of the store in an electric
wheelchair, he tried to hide a Ziploc bag containing a green leafy substance that looked
like marijuana. Klima then tried to take off his jacket and refused to give it to the police
officers. One of the officers observed Klima grab a pill bottle out of his jacket pocket and
pull out a clear glass pipe with white residue and a bag containing a white powder
substance. A field test revealed the green leafy substance was marijuana and the white
powder was methamphetamine.
The State charged Klima with:
• unlawful possession of methamphetamine, in violation of K.S.A. 2019 Supp.
21-5706(a);
• unlawful possession of marijuana, or its active ingredient
tetrahydrocannabinol, in violation of K.S.A. 2019 Supp. 21-5706(b)(3);
• resisting law enforcement, in violation of K.S.A. 2019 Supp. 21-5904(a)(3);
and
• misdemeanor possession of drug paraphernalia, in violation of K.S.A. 2019
Supp. 21-5709(b)(2).
Klima pled guilty to and was convicted of possession of methamphetamine and
possession of marijuana, with the State agreeing to recommend a departure sentence to
probation if he tested clean at sentencing. The State dismissed the remaining charges.
After his plea, the district court granted Klima's request for an own recognizance bond.
The district court confirmed Klima understood the State was not bound under the plea
agreement, including sentencing recommendations, if he failed to obey his bond
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conditions. The State specifically required Klima to provide a clean urinalysis (UA) test
at sentencing.
Prior to the sentencing hearing, Klima filed a motion for dispositional departure
from his presumptive prison sentence to probation based on his age and poor health
conditions. At the scheduled sentencing hearing, the State requested Klima provide a UA
sample before the sentencing hearing proceeded. Klima's UA test was positive for
methamphetamine and marijuana. Given Klima's positive results, the district court
revoked Klima's bond, remanded him to custody in the county jail, and continued the
sentencing hearing until a later date to ensure Klima was sober at the time of sentencing.
At sentencing, Klima argued that despite his positive UA test, he would benefit
from a supportive living environment and would succeed on probation. The State argued
dispositional departure was not appropriate because Klima could not follow the
conditions of the plea agreement as he had been unable to remain clean for the short time
he was out of jail on bond. Klima's presentence investigation report reflected a criminal
history score of B with 34 prior convictions, including person and nonperson felonies and
misdemeanors. The district court denied Klima's motion for dispositional departure to
probation. However, the district court granted a durational departure based on his age and
health issues from the mid-range sentence of 34 months to 24 months' imprisonment for
possession of methamphetamine and a concurrent sentence of 11 months' imprisonment
for possession of marijuana, with 12 months' postrelease supervision.
ANALYSIS
Klima argues the district court abused its discretion in denying his motion for a
dispositional departure to probation. He asks this court to reverse the district court's
sentence because his substance abuse issues would best be resolved through a supportive
living environment in the community. The State argues the district court did not abuse its
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discretion because Klima failed to provide a substantial and compelling reason to impose
a departure sentence; thus, the judgment should be affirmed.
We have 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).
We review the extent of a departure sentence under an abuse of discretion standard. State
v. Ibarra, 307 Kan. 431, 433, 411 P.3d 318 (2018). A judicial action constitutes an abuse
of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of
law; or (3) it is based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d
931 (2018).
The district court must impose the presumptive sentence provided by the revised
Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-6801 et seq., absent
substantial and compelling reasons to depart. K.S.A. 2020 Supp. 21-6815(a). Our
Supreme Court defined the terms substantial and compelling in State v. Blackmon, 285
Kan. 719, 724, 176 P.3d 160 (2008):
"To be substantial the reason must be real, not imagined, and of substance, not
ephemeral. To be compelling the reason 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. [Citation omitted.]"
The district court must evaluate the totality of the circumstances, including the
defendant's crime of conviction, criminal history, the reason for departure, and the
purpose and principles of the KSGA. State v. McKay, 271 Kan. 725, 730-31, 26 P.3d 58
(2001).
Here, the State agreed in the plea agreement not to oppose probation if Klima
tested clean at sentencing. He did not. His failure to remain clean released the State from
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its agreed-upon sentencing recommendation. Klima still claims the State should be bound
by the plea agreement even though he could not follow the terms of the agreement while
he was out of jail on bond. He also argues the district court erred in denying his motion
for a dispositional departure to probation because he would benefit from a supportive
living environment and would also be better able to address his health issues and seek
medical treatment on probation
Klima identifies no error of fact or law underlying the district court's decision. In
light of Klima's convictions, bond violation, and extensive criminal history, the district
court's decision is reasonable under the totality of the circumstances. Klima's argument is
unavailing. He failed to show substantial and compelling reasons why the district court
should abandon the presumptive sentence of imprisonment and grant his motion for
dispositional departure to probation.
Klima has not established the denial of his dispositional departure motion was
arbitrary, fanciful, or unreasonable. The district court was well within its statutory
authority and sound discretion to deny Klima's motion for dispositional departure.
Affirmed.
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