State v. Montgomery

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 122,237

STATE OF KANSAS,
Appellant,

v.

DAVID CLAYTON MONTGOMERY,
Appellee.

SYLLABUS BY THE COURT

1.
For purposes of a potential downward departure sentence, when a court is
evaluating whether a nonstatutory factor can be a mitigating factor as a matter of law, the
court must consider whether the Legislature, through the sentencing grid, has already
taken the factor into account. If it has, then the factor cannot be a mitigating factor as a
matter of law.

2.
The Legislature, through the sentencing guidelines, has accounted for the
difference in character between a defendant's past offenses and the present offense.

3.
The fact that a defendant's criminal history does not include similar or identical
crimes to the crime of conviction cannot be a mitigating factor as a matter of law.

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 Review of the judgment of the Court of Appeals in an unpublished opinion filed July 24, 2020.
Appeal from Johnson District Court; TIMOTHY P. MCCARTHY, judge. Opinion filed August 27, 2021.
Judgment of the Court of Appeals vacating the sentence is affirmed. The sentence is vacated, and the case
is remanded to the district court with directions.

Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district
attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellant.

James M. Latta, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellee.

The opinion of the court was delivered by

STEGALL, J.: David Clayton Montgomery argues the dissimilarity between past
offenses and the current offense of conviction can support departing from the
presumptive sentence established by the Kansas Sentencing Guidelines Act (KSGA or
Guidelines) as a matter of law. The district court agreed, finding a substantial and
compelling reason for departure based on the dissimilarity between Montgomery's past
offenses from the present offense, aggravated domestic battery. The panel reversed,
holding the district court's reason for departing legally insufficient. We agree with the
panel. We therefore vacate Montgomery's sentence and remand for resentencing.

FACTS AND PROCEDURAL BACKGROUND

Montgomery pled guilty to aggravated domestic battery based on allegations he
strangled his girlfriend, C.G., on May 27, 2019. The district court entered a no-contact
order, which Montgomery admittedly violated.

Montgomery moved for a downward departure sentence. He argued any one of
three proffered reasons justified finding substantial and compelling reasons for departure:

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(1) acceptance of responsibility and cooperation with law enforcement; (2) community
corrections would better promote his reformation while still protecting public safety
interests; and (3) lack of recent and significant criminal history, pointing out 6 of his 13
prior convictions were unscored traffic offenses and the other 7 resulted from 3 cases in
2013 and 2014.

At sentencing, the State asked the court to sentence Montgomery to 31 months in
prison rather than probation under the plea agreement, arguing it was no longer bound
based on Montgomery's violation of the no-contact order. Montgomery continued to
violate the no-contact order by calling C.G. from jail. The State explained a witness saw
Montgomery choking C.G. after his release from custody. The State also played video of
the incident leading to charges, arguing it showed similar behavior. The State emphasized
Montgomery engaged in violence in a past burglary conviction, in which Montgomery
posed as a plain-clothes police officer to gain entry to his victim's home. He made the
victim, who believed Montgomery had a gun, stay in a bathroom while he burglarized the
house. The victim's friend arrived while Montgomery was burglarizing the house.
Montgomery forced the friend to the ground, kicked him in the ribs, and stole money
from the friend's wallet. Montgomery was apparently freshly off postrelease for that
burglary when he strangled C.G.

The district court ordered 60 days' shock time with no credit for time in custody
and imposed the agreed 24 months' probation with an underlying sentence of 31 months.
The sentencing judge explained his reasons:

"All right. The Court does understand the position of the prosecutor in wanting to
break the plea agreement which they agreed to on August 12, 2019, as to probation at the
Adult Residential Center. And the Court is concerned by the email that I received from
the prosecutor and the report in Kansas City, Missouri. I understand that that is a report
and nothing is charged there at this point. . . .

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 "The determining factor is multiple things in this case. Although the defendant is
a criminal history score of B, those charges—there are no other domestic violence
charges within the criminal history. I understand there were some felonies. There were
burglaries as pointed out by the prosecutor. There were a number of other things that
were related to license and driving on a suspended as well that make him a B.

"The Court is going to order 60 days shock time. The defendant will not be given
credit for the time in custody, for the 32 days that [Montgomery's counsel] has
continually alluded to. He'll serve 60 days. The Court will order a 31-month underlying
sentence, 24-month probation to the Adult Residential Center. The defendant is to have a
domestic violence assessment and substance abuse evaluation and follow any
recommendations of those assessments. No contact with the victim, costs and fees to the
defendant and domestic violence fees." (Emphasis added.)

The State timely appealed.

The Court of Appeals held the district court's sole reason for departing legally
insufficient, vacated the sentence, and remanded the case for a new sentence. State v.
Montgomery, No. 122,237, 2020 WL 4249425 (Kan. App. 2020) (unpublished opinion).

Montgomery petitioned for review. Jurisdiction is proper. K.S.A. 60-2101(b)
(Supreme Court jurisdiction to review Court of Appeals cases on petition for review).

ANALYSIS

A district court shall impose the presumptive sentence established by the
Sentencing Guidelines unless the sentencing judge "finds substantial and compelling
reasons to impose a departure sentence." K.S.A. 2018 Supp. 21-6815(a). In considering
whether such reasons exist, the district court may consider whether mitigating factors
support granting a departure. See K.S.A. 2018 Supp. 21-6815(c). Our statute defines
mitigating factors to be "a substantial and compelling reason justifying an exceptional

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sentence whereby the sentencing court may impose a departure sentence outside of the
standard sentencing range for a crime." K.S.A. 2020 Supp. 21-6803(n). A sentencing
judge imposing a departure sentence shall state on the record the substantial and
compelling reasons supporting the departure. K.S.A. 2018 Supp. 21-6815(a).

The State or defendant may appeal a departure sentence. K.S.A. 2020 Supp. 21-
6820(a). Appellate review is limited to determining "whether the sentencing court's
findings of fact and reasons justifying a departure: (1) [a]re supported by the evidence in
the record; and (2) constitute substantial and compelling reasons for departure." K.S.A.
2020 Supp. 21-6820(d).

Substantial means "real, not imagined, and of substance, not ephemeral." State v.
Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008). And a compelling reason is one that
"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." 285 Kan. at 724.

We recently addressed how appellate courts review a departure sentencing
decision in State v. Morley, 312 Kan. 702, 479 P.3d 928 (2021). We noted confusion
about how the abuse of discretion standard applied to review of departure decisions. See
312 Kan. at 707-09. We set out a three-step framework to resolve any confusion, in
which appellate courts:

"(1) determine whether the sentencing court's nonstatutory factor can be a mitigating
factor as a matter of law under K.S.A. 2019 Supp. 21-6815(c); (2) if it can, then decide
whether that nonstatutory factor's existence is supported by the record; and (3) if so, then
determine whether the sentencing court acted reasonably when it concluded there was a
substantial and compelling reason to depart in a particular case based on that nonstatutory
factor by itself or collectively with other statutory or nonstatutory factors cited by the
sentencing court." 312 Kan. at 711.

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We further explained the inquiries at each step:

"(1) whether the determination of a nonstatutory factor was guided by an erroneous legal
conclusion; (2) whether substantial competent evidence supported the factual finding that
the factor existed, i.e., an error of fact; and (3) whether a reasonable person would have
taken the view adopted by the sentencing court. And it is important to emphasize that
only the first step involves a legal question, subject to unlimited review." 312 Kan. at
711.

The remaining two questions are reviewed for abuse of discretion. 312 Kan. at 711. An
abuse of discretion occurs when the lower court's action is "(1) based on an error of fact,
(2) based on an error of law, or (3) unreasonable." 312 Kan. at 710.

When reviewing a departure sentence, "[a]s long as one factor relied upon by the
sentencing court is substantial and compelling, the departure sentence should be upheld."
Blackmon, 285 Kan. at 725. And mitigating factors may be considered collectively
sufficient to constitute substantial and compelling reasons even where one standing alone
would not suffice. 285 Kan. at 725.

Of note, whether the district court relied on a single factor or multiple factors is
not entirely clear in this case. The district court used a singular subject and verb
conjugation but immediately followed those with identification of multiple factors: "The
determining factor is multiple things in this case." (Emphasis added.) Despite stating
there were multiple factors, what follows is a discussion of only one factor, the
dissimilarity the district court perceived between the current offense, domestic violence,
and past offenses: "[T]here are no other domestic violence charges within the criminal
history. I understand there were some felonies. There were burglaries as pointed out by
the prosecutor. There were a number of other things that were related to license and
driving on a suspended [license]." We acknowledge the lack of clarity in the district
court's pronouncement and the existence of other factors argued to the district court.

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We nevertheless conclude from the district court's own articulation that the judge relied
solely on the perceived difference in past offense and the present offense in deciding to
depart, a nonstatutory factor. We now consider whether the difference in past and present
offense may support departing from the guideline sentence.

The KSGA provides a nonexclusive list of mitigating factors a sentencing judge
may consider when determining whether to impose a departure sentence. K.S.A. 2018
Supp. 21-6815(c)(1). Statutory factors include the victim's role as an aggressor or
participant in the alleged criminal conduct; the offender played a minor or passive role in
the crime or participated under duress or compulsion; the offender lacked substantial
capacity for judgment due to physical or mental impairment; the defendant or his or her
children suffered a continuing pattern of physical or sexual abuse by the victim; the
degree of harm or loss is significantly less than typical for such offense; or the offender
was a combat veteran who committed the crime as a result of injury, including major
depressive disorder, polytrauma, post-traumatic stress disorder, and traumatic injury. See
K.S.A. 2018 Supp. 21-6815(c)(1)(A)-(F).

"[A] sentencing court can consider nonstatutory [mitigating] factors as long as the
factors are consistent with the principles underlying the KSGA." State v. Bird, 298 Kan.
393, 398-99, 312 P.3d 1265 (2013). The Bird court recognized three legislative purposes
underlying the KSGA: "(1) to reduce prison overcrowding, (2) to protect public safety,
and (3) to standardize sentences so similarly situated offenders are treated the same." 298
Kan. at 399. Other underlying principles we have recognized include: reserving
incarceration for serious/violent offenders who threaten public safety; imposing sanctions
based on harm inflicted; uniformity of sanctions not related to socioeconomic factors,
race, or geography; clear, understandable penalties; avoiding imprisonment being used as
a tool to gain education or job skills; "and the system must be rational to allow
policymakers to allocate resources." 298 Kan. at 399-400.

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 Kansas courts have recognized various nonstatutory mitigating factors as
consistent with the purposes of the Kansas Sentencing Guidelines. Morley, 312 Kan. at
702 (acceptance of responsibility); Bird, 298 Kan. at 398-401 (evidence defendant is not
a threat to society); State v. Hines, 296 Kan. 608, 617-19, 294 P.3d 270 (2013) (victim's
request for lenience); State v. Spencer, 291 Kan. 796, 814, 818, 248 P.3d 256 (2011)
(support of family and friends); State v. Favela, 259 Kan. 215, 236, 911 P.2d 792 (1996)
(differences in prior convictions not reflected in sentencing grid one of many factors
supporting departure); State v. Richardson, 20 Kan. App. 2d 932, Syl. ¶ 5, 901 P.2d 1
(1995) (passage of time since last felony committed); State v. Heath, 21 Kan. App. 2d
410, 415, 901 P.2d 29 (1995) (time elapsed since and relatedness of prior felonies,
relying on Richardson).

Montgomery argues the difference in offenses alone can constitute a mitigating
factor as a matter of law. The State disagrees, arguing the Guidelines adequately account
for past convictions and therefore differences in past convictions are not a basis for
departure. The State emphasizes the Guidelines consider the seriousness of past offenses
by distinguishing felonies from misdemeanors and whether the offense is a crime of
violence or a property offense. In this case, we agree with the State. To see why, we
return to the purpose and design of the Guidelines.

The Legislature created the Sentencing Guidelines Commission (the Commission)
in 1989. The Legislature charged the Commission with developing what has become the
sentencing grid "based on fairness and equity" and to "provide a mechanism for linking
justice and corrections policies." K.S.A. 74-9101(b)(1). One purpose of the grid was to
"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. 74-9101(b)(1).

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 The Commission identified a series of goals, including the promotion of public
safety by incarcerating violent offenders; reduction of sentence disparity to eliminate any
racial, geographic, or other bias existing in sentencing; establishing sentences
proportional to the severity of the offense and the harm to the victim; establishing easy-
to-understand presumptive sentences to promote truth in sentencing. Recommendations
of the Kansas Sentencing Commission 2 (1991). To further those goals, the Commission
recommended a scale that accounted for crime seriousness and criminal history; a
sentencing grid establishing presumptive sentences to be imposed in most cases, which
the Legislature adopted and has since periodically revised. See State v. Murdock, 299
Kan. 312, 320-21, 323 P.3d 846 (2014) (Rosen, J., dissenting). See generally
Recommendations of the Kansas Sentencing Commission.

The Guidelines apply "equally to all offenders in all parts of the state." K.S.A.
2020 Supp. 21-6802(a). The Guidelines provide two sentencing grids for felony offenses,
one for nondrug offenses and another for drug offenses. Each contains two axes, one of
which reflects the severity level of the current offense and one that reflects the offender's
criminal history. See K.S.A. 2020 Supp. 21-6804; K.S.A. 2020 Supp. 21-6805. The
Guidelines establish a presumptive sentence for each severity level, subject to the
sentencing court's discretion to depart. The Guidelines further instruct, "The appropriate
punishment for a felony conviction should depend on the severity of the crime of
conviction when compared to all other crimes and the offender's criminal history." K.S.A.
2020 Supp. 21-6804(d). The Guidelines weigh person crimes more heavily than property
crimes both in assigning the severity level of the current crime and in assigning a
criminal history score that account for the nature of past offenses as either person or
nonperson. See generally K.S.A. 2020 Supp. 21-6804; 21-6805.

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 In short, the Guidelines account for differences in the character of past and present
offenses. Therefore, we conclude a difference in offenses standing alone cannot be a
nonstatutory mitigating factor because doing so contravenes a purpose of the Guidelines.
The district court erred in departing here to the extent it did so based solely on what it
perceived to be a difference in character between Montgomery's past person felonies and
his present person felony of conviction.

Montgomery argues caselaw from this court and the Court of Appeals already
established that the dissimilarity between the present crime of conviction and past
offenses constitutes a mitigating factor as a matter of law. But none of the cases on which
he relies went that far. Not one of these cases concluded any difference standing alone
supported imposing a departure sentence.

In Richardson, the Court of Appeals concluded a sentencing court can consider a
factor the sentencing grid does not take into account. There, the factor was the passage of
time since Richardson's last person felony and later felony conviction. 20 Kan. App. 2d at
942-43. The panel rejected the State's argument that the sentencing grid already
accounted for an offender's criminal history because the factor here was not one included
in the criminal history.

Richardson pled guilty to driving with a suspended license; an offense he
committed on July 13, 1993. Richardson's criminal history included three person felonies
committed when Richardson was 16 years old, 14 years before the present offense. His
history also included one nonperson felony, one person misdemeanor, and three
nonperson misdemeanors. The district court departed based on passage of time since the
most serious offenses (14 years since the person felonies, and 10 years since the most
recent felony), and the lack of recent person or violent offenses. 20 Kan. App. 2d at 933-
34.

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 The Court of Appeals affirmed. The panel concluded the time elapsed since the
last felony, a factor not accounted for in an offender's criminal history, "may provide a
substantial and compelling reason for a departure sentence, depending on the facts of the
case." 20 Kan. App. 2d at 942. The panel noted the Legislature "intended to reduce prison
overcrowding while protecting public safety by creating a distinction between more
serious and less serious offenders." 20 Kan. App. 2d at 943. The panel concluded the
district court "was justified in giving weight to the time which had elapsed since
Richardson's commission of [his prior felonies]." 20 Kan. App. 2d at 943. The panel
reasoned,

"[G]iven the nonviolent nature of Richardson's current offense and the purposes of the
guidelines, the sentencing court did not err as a matter of law when it examined
Richardson's criminal history and concluded the time elapsed since Richardson's last
felony and last person felonies were substantial and compelling reasons to depart from
the presumptive sentence." (Emphasis added.) 20 Kan. App. 2d at 943.

In short, Richardson faced jail time for driving with a suspended license because
his criminal history included older, more serious offenses that placed him in a
presumptive prison grid box. Against this background, the district court departed and the
panel affirmed. See 20 Kan. App. 2d at 943.

Shortly after Richardson, the Court of Appeals affirmed another downward
dispositional departure. Danny L. Heath pled no contest to involuntary manslaughter after
his friend and coworker died as the result of an accident that occurred when Heath drove
with a blood alcohol level of .151. Heath's criminal history included "(1) residential
burglary, a person felony juvenile adjudication, dated 12-7-78; (2) felony theft, a
nonperson felony juvenile adjudication, dated 12-7-78; (3) three misdemeanor
convictions for possession of marijuana, dated 9-11-80, 3-23-83, and 6-5-89; and

11
(4) driving while his license was suspended, a nonperson misdemeanor, dated 11-14-90."
Heath, 21 Kan. App. 2d at 411.

The district court in the journal entry said,

"'The Court finds that the juvenile [adjudication] is in no way related to the present crime;
furthermore, the victim's father testified that Defendant should not be incarcerated;
furthermore, the victim's mother testified that Defendant did not intentionally kill her son;
furthermore, the Court finds that of all the Level V crimes, the charge at issue does not
require an intent to injure.'" 21 Kan. App. 2d at 411 (quoting district court).

At sentencing, the district court stated its reasons for departing differently:

"'The nature of this case, the nature of the relationship between the parties and
the disposition that has been indicated here is something that causes this court to feel that
I'm compelled to depart from the standard. What I'm going to do, Mr. Heath, is I'm going
to make it the sentence and order of this court that you be taken by the Sheriff of Reno
County and by him delivered to the Secretary of Corrections for a period of not less than
50 months. That's the minimum sentence the court can impose in this case.

"'I am going to depart from that dispositionally. I am going to depart from that
because I feel that there are mitigating factors that are substantial and compelling in
nature, and those relate to the fact that at the age of 16 or 17 you committed what was
now determined to be a person felony, a residential felony, and that is the factor that puts
you in prison. And I find that that has nothing to do with the act that you stand before me
today for. Because of the age of that case and because of the fact that there is absolutely
no relation between that particular person felony on your record as a juvenile and because
of the fact that they are totally unrelated, and I am going to depart and allow you to
remain outside of prison.'" 21 Kan. App. 2d at 411-12.

The Heath panel, relying on Richardson, held "both the time elapsed between the
last felony and the sentencing event and the similarity or relatedness of previous felonies

12
and the sentencing event may be substantial and compelling reasons for departure." 21
Kan. App. 2d at 415. The panel considered the legislative goal of uniform sentencing
against the legislative goal of judicial discretion, which is forwarded by allowing trial
courts to consider the age and relatedness between past offenses and the present offense
leading to sentencing. The panel concluded, "[G]iven the nonviolent nature of Heath's
current offense and the purpose of the guidelines, the sentencing court did not err as a
matter of law when it considered the age of the offenses which made up Heath's criminal
history to be a substantial and compelling reason to depart from the presumptive
sentence." 21 Kan. App. 2d at 416.

Some subsequent Court of Appeals cases relied on Heath to conclude a court
could consider "the similarity or relatedness of previous felonies" as a mitigating factor.
But none of these cases have found the similarity or relatedness alone sufficed to support
a departure. See State v. Hazelton, No. 119,703, 2020 WL 111284, at *5 (Kan. App.
2020) (unpublished opinion); see also State v. Henderson, No. 100,855, 2009 WL
3018088, at *4 (Kan. App. 2009) (unpublished opinion) ("Because the sentencing grid
does not take into account the age of the defendant's prior convictions or the fact that the
prior convictions are not related to the current conviction, a sentencing court can consider
these factors to justify a departure."). But see Hazelton, 2020 WL 111284, at *6 (Buser,
J., concurring in part and dissenting in part) ("I would find, as a matter of law, the fact
that a defendant being sentenced for a drug offense under the KSGA does not have a
prior drug offense, standing alone, may never be a substantial and compelling
nonstatutory mitigating factor sufficient to justify a downward departure sentence.").

In Favela, we relied on Richardson. We observed the Richardson panel rejected
the State's argument that criminal history cannot be used as a basis for departure because
the sentencing grid accounts for that history. We then noted the Richardson court
affirmed the sentencing court's departure sentence that found mitigating factors based on

13
the passage of time since Richardson's last felony and person felony, finding this
difference in time and offense to be substantial and compelling reasons justifying
departure. Favela, 259 Kan. at 236.

The Favela court then considered whether "the fact that the defendant had not
previously committed any offense which would be deemed a felony if he had been an
adult was a substantial and compelling reason justifying departure." 259 Kan. at 235. The
Favela court concluded that this fact could justify departure. It noted the sentencing
court's comments that defendant was "just a kid crook," pointing to his prior offenses of
stealing two packages of cigarettes and possession and transportation of alcoholic
beverages. 259 Kan. at 236. The sentencing court also noted the present offense,
attempted second-degree murder, was out of character for the defendant, who at age 17
had just witnessed his victim stab his brother and returned to the scene after rushing his
brother to the hospital. This court affirmed: "Thus, the fact that the defendant had not
previously committed any offense which would be deemed a felony if he had been an
adult was properly used as a substantial and compelling reason justifying departure in this
case." 259 Kan. at 236.

Neither of these factors are truly part of a defendant's criminal history, even
though past decisions may have colloquially characterized them as such. In other words,
as far as the Guidelines are concerned, passage of time and whether a juvenile offense
would have been deemed a felony if committed by an adult are irrelevant within the
Guidelines. Thus, the Guidelines cannot be said to have already taken these factors into
account. Moreover, the Favela court's discussion was not limited to these factors. We did
recognize that the factors could be considered "as part of the entire package," analogizing
it to the statutory mitigating factor of one who "because of physical or mental
impairment, lacked substantial capacity for judgment when the offense was committed."
259 Kan. at 234-35. We concluded the sentencing court's departure was justified by its

14
findings of fact, which, "when considered as a whole, constitute substantial and
compelling circumstances justifying departure." 259 Kan. at 239.

In short, no case Montgomery cites supports the broad rule he would have this
court draw that a difference between past and present offense on its own can constitute a
mitigating factor supporting a departure sentence. And we see none. A key legal
consideration when evaluating whether a nonstatutory factor can be a mitigating factor as
a matter of law is whether the Legislature, through the sentencing grid, has already taken
the factor under consideration into account. If it has, then the factor cannot be a
mitigating factor as a matter of law.

We find that the sentencing grid already accounts for the difference in character
between a defendant's past offenses and the present offense. Thus, a district court cannot
depart from the presumptive sentence solely because a defendant's criminal history does
not include similar or identical crimes to the crime of conviction. Because the
Legislature, through the sentencing grid, has already made that determination, it is not the
province of the courts to second-guess those decisions. This does not mean that all
considerations of the defendant's criminal history more broadly construed are off limits.
The passage of time between offenses is a clear example of a factor that has been
described as part of a defendant's "criminal history," but it is not a consideration within
the Guidelines.

When, as here, a sentencing court relies on a single nonstatutory factor that cannot
be a mitigating factor as a matter of law, we need not determine whether the factor is
supported by the record or whether the district court acted reasonably in finding
substantial and compelling reasons for supporting a departure. The sentence must be
vacated because the sentencing court relied on an improper nonstatutory mitigating
factor. The sentencing court identified no other factor or factors that could constitute

15
substantial and compelling reasons for departure that might independently support
granting a departure in this case. See Blackmon, 285 Kan. at 725. The sentence must be
vacated.

We vacate Montgomery's sentence and remand to the district court for
resentencing.

Judgment of the Court of Appeals vacating the sentence is affirmed. The sentence
is vacated, and the case is remanded to the district court with directions.

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