NOT DESIGNATED FOR PUBLICATION
No. 122,986
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ELGIN B. BROWN,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; JENNIFER L. MYERS, judge. Opinion filed June 25, 2021.
Affirmed.
Jacob Nowak, of Kansas Appellate Defender Office, for appellant.
Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.
Before POWELL, P.J., BRUNS, J., and STEVE LEBEN, Court of Appeals Judge Retired,
assigned.
PER CURIAM: Elgin B. Brown pled guilty to several charges arising out of an
incident in which he stole a police cruiser and led the police on a dangerous, high-speed
chase. Due to Brown's criminal history score of B and the fact he committed his crimes
while on parole, his convictions presumptively required prison. The district court granted
Brown's request for a downward durational departure which resulted in a shorter prison
sentence but denied his request for a dispositional departure to probation. Brown now
appeals, arguing the district court abused its discretion by denying him probation because
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it considered facts not in evidence due to its reference to Brown's records from the
Kansas Department of Corrections (KDOC). We disagree because a sentencing court is
permitted to consider a broad range of information at sentencing and because the district
court denied Brown probation due to the danger Brown's actions posed to the public.
Thus, we affirm Brown's sentences.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2018, police stopped a vehicle operated by Brown, and, after discovering
four warrants for Brown's arrest, a police officer handcuffed Brown and put him in a
patrol car. Brown managed to steal the patrol car and led officers on a high-speed chase,
reaching speeds more than 120 miles per hour. The police lost sight of the vehicle, and it
was eventually found abandoned in Kansas City, Missouri. Several items of police
equipment were missing from the vehicle, including three AR rifle magazines. The
handcuffs were not recovered.
The State charged Brown with one count of eluding police, one count of theft, one
count of interference with law enforcement, and one count of operating a motor vehicle
without a driver's license. As part of a plea agreement with the State, Brown agreed to:
(1) plead guilty as charged; (2) imposition of the aggravated prison sentence from the
appropriate sentencing guidelines grid box; (3) either return the stolen equipment or, if it
was sold, identify the buyers; and (4) pay restitution, costs, and fees. In exchange, the
State agreed to join Brown's request for a downward dispositional departure to probation.
At sentencing, the district court noted that Brown had a criminal history score of B
and that Brown had committed his crimes while on parole, meaning his crimes would
presumptively require prison. Given Brown's criminal history score, the presumptive
prison sentence for his primary crime, theft, was (1) aggravated-31 months, (2) standard-
29 months, and (3) mitigated-27 months.
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Consistent with the plea agreement, the State asked the district court to impose the
aggravated prison sentence for each count but grant Brown probation from any prison
sentence. Brown's counsel made several arguments in support of probation, namely that
Brown had accepted responsibility for his crimes by pleading guilty, Brown had spent
several months in custody—which was intended to serve as an adequate punitive measure
to ensure he would stay out of trouble, and Brown had family support. Counsel concluded
by acknowledging the case was not "very palatable given both [Brown's] criminal history
and the current allegations." Brown had previously spent a considerable amount of time
in prison before his release in 2016. While Brown's parole performance had not been
ideal, defense counsel admitted, Brown had "not violated the law since 2016 except for
this case." Alternatively, Brown requested a durational departure from the presumptive
term of imprisonment.
Almost immediately, the district court denied Brown's request for a dispositional
departure, stating:
"All right. Well, Mr. Brown, all I know about your case is what I read in the
affidavit. And from what I read in the affidavit, I—I cannot rightfully give you probation.
You stole a police car while you were under arrest. I just—I don't get it. I—I just can't
wrap my head around that. Not only did you steal the cop car, you go on a high speed
chase. You're going 120 miles an hour in a 55 mile an hour zone? You are lucky you did
not kill—kill someone, kill multiple people. How do you—I just can't—nothing in my
mind can grasp that. Maybe you were scared. Maybe you didn't want to go back to jail,
but my job up here is I generally try to follow plea agreements and I try to be fair, but my
job up here is also to ensure the safety of the community. And I think if you were in my
position looking at somebody who had made this same decision, I think you'd have a hard
time doing that also.
"So, you know, I try to give you a break looking at your criminal history because,
you know, you made some bad mistakes back in the past, but, man, you didn't even do
good after that. You know, I'm looking at your DOC records, you—you've been—you
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had the chance to be paroled a long time ago and you get out, you go back in. You—you
just can't follow the law. And I don't know if it's just bad decisionmaking or if you have a
drug problem or I don't know what it is, but you're—you've gotta improve on
decisionmaking 'cause it's just not there.
"So I cannot in my right mind follow this plea agreement. It's just unconscionable
to me that a plea like this would have even been offered to you. But, on the other hand,
you could have gone to trial and the State, you could have gone to trial, but—was there
video of this? Yeah, I think there was because in the affidavit, the trooper watched the
video.
"[PROSECUTOR]: Well, it was also—there was also the in car camera from the
trooper's car as well. So it was—
"THE COURT: Yeah. So, I mean, you could have gone to trial, but I'm not
sure—I understand why you accepted responsibility because you gave the trooper your
license. He knew who you were. You were under arrest. So I understand accepting
responsibility, but there's some case law out there that tells me that accepting
responsibility is not good enough, that I have to find substantial and compelling reasons,
which means very out of the ordinary. And I follow this guide right here and when I look
at the B box and where you fall, the legislature tells me that it's my job to send you to
prison."
However, the district court did grant Brown a durational departure on the theft
charge to 24 months in prison and imposed concurrent sentences on the remaining counts.
The reasons cited in the journal entry as a basis for departure were Brown's acceptance of
responsibility and saving the time and costs of trial.
Brown timely appeals his sentences.
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DID THE DISTRICT COURT ABUSE ITS DISCRETION IN DENYING
BROWN'S REQUEST FOR A DISPOSITIONAL DEPARTURE?
On appeal, Brown argues that the district court erred by not departing further and
granting his request for a dispositional departure to probation. He also complains the
district court improperly relied upon KDOC records in its sentencing decision.
A departure sentence is subject to appeal by the defendant or the State, including
when the complaint is that the district court "'did not depart enough.'" State v. Looney,
299 Kan. 903, 908, 327 P.3d 425 (2014); see K.S.A. 2020 Supp. 21-6820(a); State v.
Cooper, 54 Kan. App. 2d 25, 27, 394 P.3d 1194 (2017). We review a district court's
departure decision for abuse of discretion. State v. Morley, 312 Kan. 702, 711, 479 P.3d
928 (2021). An abuse of discretion occurs "when the judicial action is (1) based on an
error of fact, (2) based on an error of law, or (3) unreasonable." 312 Kan. at 710. Brown
bears the burden to show an abuse of discretion by the district court. See State v. Thomas,
307 Kan. 733, 739, 415 P.3d 430 (2018).
The sentencing judge is required to impose the presumptive sentence set by the
revised Kansas Sentencing Guidelines Act, K.S.A. 2020 Supp. 21-6801 et seq., "unless
the judge finds substantial and compelling reasons to impose a departure sentence."
K.S.A. 2020 Supp. 21-6815(a). "The term 'substantial' in the sentencing departure context
means something that is real, not imagined, and of substance, not ephemeral." Morley,
312 Kan. 702, Syl. ¶ 3. To constitute a compelling reason to impose a departure sentence,
the reason must be "one that forces a court—by the case's facts—to abandon the status
quo and venture beyond the presumptive sentence." 312 Kan. 702, Syl. ¶ 4. When a
district judge grants a departure, the judge must state the substantial and compelling
reasons for the departure on the record at the time of sentencing. K.S.A. 2020 Supp. 21-
6815(a). A judge is not required to make any findings when denying a request for
departure. State v. Florentin, 297 Kan. 594, 601-02, 303 P.3d 263 (2013), disapproved of
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on other grounds by State v. Jolly, 301 Kan. 313, 342 P.3d 935 (2015). The reasons
which justify a durational departure may not justify a dispositional departure.
Brown argues that the district court made both an error of law and an error of fact,
and thus abused its discretion, when it denied his request for a dispositional departure.
His chief complaint, relying on State v. Smith, 308 Kan. 778, 423 P.3d 530 (2018), is that
the district court stated it relied on his KDOC records when those records were not
admitted into evidence. This was a mistake of law, Brown argues, because the district
court is not permitted to consider facts not in evidence and because the court could not
have properly taken judicial notice of the KDOC records. See 308 Kan. at 784; Supreme
Court Rule 601B, Canon 2, Rule 2.9(C) (2021 Kan. S. Ct. R. 491) (judge shall only
consider evidence presented and facts judicially noticed). Brown then argues that this
alleged error caused the district court to commit a mistake of fact because its findings
regarding his criminal history are not supported by evidence in the record. The State
counters that the district court did not consider Brown's KDOC records in denying his
request for probation.
The district court stated it was "looking at [Brown's] DOC records" and Brown
"had the chance to be paroled a long time ago," but when he got out, he went back in. The
parties ascribe different interpretations to the statement at issue. Brown acknowledges the
statement is not explicitly clear but claims it seemed the judge was referencing one or
more parole violation sanctions included in his KDOC records. The State believes the
judge was noting that Brown "had been denied postrelease, ostensibly because of his
actions while in custody."
Our review of the sentencing transcript shows that the district court did not
conduct an evidentiary hearing at sentencing. This fact alone distinguishes this case from
Smith, which involved an evidentiary hearing concerning whether the defendant had
wanted to appeal. Admittedly, the district court perhaps implicitly took judicial notice of
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the presentence investigation report and material from the case file, but it heard
arguments and representations from counsel and Brown's allocution without conducting
an evidentiary hearing or putting anyone under oath. We see no error despite our
presumption that the district court considered all of this when making its sentencing
decision because "[a] sentencing court is free to consider a broad range of information
about the defendant at sentencing." See State v. Trautloff, No. 110,819, 2014 WL
7152345, at *3 (Kan. App. 2014) (unpublished opinion) (relying upon Williams v. New
York, 337 U.S. 241, 246-51, 69 S. Ct. 1079, 93 L. Ed. 1337 [1949]).
But even if we were to assume that Brown's KDOC records were off limits to the
district court, it did not state that it was relying on the records to deny probation, despite
commenting on them. Instead, the district court specified that it was not granting Brown
probation due to the facts leading to his convictions, particularly that he stole a police car
while under arrest and led police on a high-speed chase that created a serious risk of
injury or death. It was not an abuse of discretion to deny Brown's request for probation on
this ground. There is no indication that the information about Brown's parole
performance factored into the district court's decision. We affirm Brown's sentences.
Affirmed.
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