dissenting: I am unable to agree that the absconding of a defendant from entering a plea in a criminal case which lasts for 2 months is not a substantial and compelling fact on which to base an upward departure. Accordingly, I dissent from the majority opinion.
In my judgment, the philosophy of the majority indicates a desire on its part to usurp the authority of the trial court in sentencing *189matters. It is not our function to substitute our opinion for that of the trial court.
The majority independently reviews the facts such as the fact that the defendant had no prior felony convictions, that his crimes of convictions were for nonviolent misdemeanors, that he had never been subject to supervised felony probation, and that his absconding was of limited duration. After considering all of these facts, the majority concludes that there was no substantial and compelling reason to depart from the presumptive' sentence. This sounds to me like re-weighing the facts before the sentencing judge.
This is a case where the defendant absconded and removed himself from the jurisdiction of the court for a period of 45 days. He failed to appear for scheduled dates on which to enter his plea of guilty to the charges. I can find no logic in a rule that says a trial judge does not have substantial and compelling reasons to depart from the presumptive sentence of probation when the defendant has absconded from the jurisdiction of the court and has failed to appear on a scheduled date to plead guilty. The trial judge in this case is an experienced and able trial judge, and he departed by saying: “Til find Mr. McKay’s attitude towards the seriousness of this offense, his intentional missing of a court date, indicates he is not a candidate for probation. He is not subject to rehabilitation at this point in time.” After making those comments, the trial judge imposed a departure sentence.
If absconding and failing to appear are not substantial and compelling reasons to depart from a presumptive sentence of probation, then I find it difficult to imagine what would suffice under the majority opinion.
We are appellate judges. We are not trial judges. We have not had the advantage of observing the defendant, of noting his demeanor, of noting his actions, of getting a feeling that one can only receive by observing an individual in an “up close and personal” manner. We have chosen to reverse a decision based on nothing more than the cold printed record. I believe this makes us, in essence, the sentencing court. I do not believe that appellate courts have this authority, and I strongly dissent from the decision the *190majority entered in this matter. It represents a point of way entirely antagonistic to the Supreme Court’s decision in State v. Favela, 259 Kan. 215, 911 P.2d 792 (1996). I would affirm the trial court.