State v. Galloway

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 124,178

STATE OF KANSAS,
Appellee,

v.

CRYSTAL DAWN GALLOWAY,
Appellant.

SYLLABUS BY THE COURT

1.
On appeal from a sentencing, this court reviews a district court judge's denial of a
motion requesting a departure sentence for an abuse of discretion. A district court abuses
its discretion when its decision turns on an error of law, its decision is not supported by
substantial competent evidence, or its decision is one with which no reasonable person
would agree.

2.
On remand for resentencing after an appellate court has vacated a sentence, a
district court may modify only the vacated sentence unless a nonvacated sentence is
illegal and must be modified as a matter of law.

3.
Appellate courts typically avoid making unnecessary constitutional decisions.
Thus, where there is a valid alternative ground for relief, an appellate court need not
reach a constitutional challenge.

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 Appeal from Cherokee District Court; STEVEN A. STOCKARD, judge. Opinion filed October 14,
2022. Affirmed in part, vacated in part, and remanded with directions.

Peter Maharry, of Kansas Appellate Defender Office, was on the brief for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were on the
brief for appellee.

The opinion of the court was delivered by

LUCKERT, C.J.: For the second time, Crystal Dawn Galloway appeals sentences
imposed after a jury convicted her of one count of premeditated first-degree murder, one
count of arson, and one count of interference with law enforcement. In her first appeal,
we vacated Galloway's hard 50 life sentence for premeditated murder after agreeing with
Galloway's argument that the district court judge improperly refused to consider a lack of
criminal history as a possible mitigating factor supporting a downward departure to a
hard 25 life sentence. We remanded for resentencing. State v. Galloway, 311 Kan. 238,
252-54, 459 P.3d 195 (2020).

On remand, a different district court judge, after considering Galloway's criminal
history and her other proffered mitigating factors, again imposed a hard 50 life sentence
for premeditated murder. The judge then turned to Galloway's sentences for arson and
interference with law enforcement even though we had not vacated those sentences in the
first appeal. The judge reimposed the same terms of imprisonment for these convictions
as those ordered at Galloway's first sentencing hearing. But he ran these sentences
consecutive to each other and to the hard 50 life sentence even though the first judge had
ordered that Galloway would serve these sentences concurrently with each other and with
her life sentence. In this current appeal, Galloway claims the second judge erred in
imposing these sentences, arguing:

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 1. The judge abused his discretion in imposing a hard 50 life sentence;

2. The judge lacked authority on remand to change Galloway's sentences for
arson and interference with law enforcement from concurrent to consecutive
sentences; and

3. The judge violated Galloway's due process rights by vindictively ordering
consecutive sentences.

After considering the parties' briefs, we hold the judge did not abuse his
discretion by imposing a hard 50 life sentence. But the judge lacked statutory authority
to change the concurrent nature of the sentences. Because of our holding on that
statutory basis, we need not address Galloway's constitutional due process argument.

We thus affirm Galloway's sentence in part and vacate in part and remand for
imposition of concurrent sentences.

FACTS AND PROCEDURAL BACKGROUND

Galloway's convictions arise from the murder of Robin Fought. Galloway's motive
for killing Fought arose from the circumstances of her attempting to regain custody of her
five children who were in the custody of the State of Kansas. Galloway worked under the
supervision of a caseworker on a plan to reintegrate her children into her home. Fought
reported to Galloway's caseworker his concerns that Galloway planned to kidnap her
children and leave Kansas. He also reported Galloway was in contact with Dakota
Cunningham, who Fought employed. Cunningham and Galloway had been in a
relationship, and Galloway, who was pregnant at the time of Fought's murder, identified

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Cunningham as the father of the child she was carrying. But the reintegration plan
prohibited any contact with Cunningham, and Fought's report consequently jeopardized
Galloway's efforts to regain custody of her children.

Days after the report to Galloway's caseworker, Fought's partially burned body
was found near a burning pickup truck. He had been stabbed multiple times, and a gas
can with a partially burned paper wick sat on his body. Evidence led police to arrest
Galloway and Cunningham, both of whom had fled to Oklahoma after the murder.

Police discovered text messages and pictures on Galloway's phone discussing
plans to murder Fought. Police also recovered DNA evidence of Galloway's blood on the
handle of the knife used to kill Fought, on the gas can placed on his body, and on the
partially burned paper in the gas can.

After the jury convicted Galloway, she moved for a departure from the
presumptive hard 50 life sentence. She argued her lack of any criminal history justified a
departure sentence. She also pointed out that a 50-year sentence would exceed her
actuarial life expectancy. A district court judge denied her motion. He concluded
Galloway's lack of criminal history deserved no consideration. The judge imposed a hard
50 life sentence for premeditated first-degree murder and concurrent sentences of 13
months for arson and 9 months for interference with law enforcement.

In resolving her direct appeal, we rejected most of Galloway's claims of error. We
did, however, find merit to her argument that the sentencing court erred when it refused
to consider a statutorily enumerated mitigating factor, her lack of criminal history. We
vacated the hard 50 sentence and remanded the case to the district court for resentencing.
See Galloway, 311 Kan. at 252-54.

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 On remand, Galloway filed an amended motion for departure. She argued several
new reasons justified a departure from the presumptive sentence: She lacked substantial
capacity for judgment when the offense was committed because of physical or mental
impairment; she suffered from drug and alcohol addiction that contributed to her actions;
she was in a state of extreme emotional distress at the time of the offense; she suffered
physical, emotional, or sexual abuse as a child; and she had been directly exposed to
domestic abuse, either as a victim or witnessing the actions where another is a victim. At
the resentencing hearing, Galloway's counsel resurrected the argument that Galloway had
no criminal record. Counsel also argued that Cunningham was the one who killed Fought
and yet had received a sentence of only 13 and a half years for second-degree murder.

Galloway testified at the resentencing hearing. She explained she was about one
and a half to two months pregnant at the time of the offenses. She said she had gestational
diabetes throughout her pregnancy that caused severe fatigue and vomiting. She also
reported having blackouts that she recognized from her experiences in prior pregnancies
to be related to low blood sugar. But she admitted she had no tests to verify that self-
diagnosis. According to Galloway, these conditions impaired her judgment at the time of
the offenses. She also reported experiencing stress because the State had removed her
children from her custody and because she was working on her case plan to try to get her
children back. She also admitted she was under the influence of marijuana at the time of
Fought's murder, or at least she used marijuana shortly before the murder.

Galloway admitted to being at the crime scene but denied active participation. She
said she did not stab the victim or burn his truck. She attributed to Cunningham the text
messages that the State argued proved premeditation. She asserted that Cunningham
possessed her phone on the day before and the day of the murder. She denied helping to
plan the crime.

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 According to Galloway, she was at the scene because Cunningham called her and
asked her to pick him up. When she arrived, Cunningham and Fought were arguing.
Cunningham pulled a knife, and Galloway tried to get the knife from him. In the process,
she cut her finger. Cunningham then stabbed Fought. Galloway said she did not call the
police because Cunningham had her phone. She testified Cunningham forced her into
fleeing and she complied out of fear for her life. Galloway denied she suffered physical
or domestic abuse or violence during her relationship with Cunningham, but said he
sometimes raised his voice and told her she had to do what he said. She said she tried to
convince Cunningham they should turn themselves in to authorities.

The State rebutted Galloway's arguments by pointing out the State removed
Galloway's children from her custody about seven months before Fought's death. The
State also emphasized evidence tying Galloway to the crime that she had not explained
away, pointing to her DNA found on the gas can and on the paper wick improvised from
a phonebook page. And the State impeached aspects of Galloway's testimony through
cross-examination. For example, after testifying Cunningham possessed her phone on the
day of Fought's murder, Galloway admitted she had her phone before arriving at the
crime scene.

A different district court judge than the one who first sentenced Galloway,
addressed each of Galloway's arguments in support of her motion for departure from the
presumptive hard 50 life sentence. The judge acknowledged that each argument "if
proven, by substantial and compelling evidence, could amount to mitigating
circumstances." But the judge determined Galloway had failed to establish that any of
these factors presented a substantial and compelling reason to depart from a presumptive
sentence.

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 The district court judge imposed a hard 50 life sentence for premeditated murder, a
consecutive 13-month sentence for arson, and a consecutive 9-month sentence for
interference with law enforcement. Making the sentences consecutive added 22 months to
Galloway's sentence as compared to her original sentence under which the three
sentences were concurrent. Galloway timely appealed.

This court has jurisdiction under K.S.A. 2021 Supp. 22-3601(b)(3) (vesting
appellate jurisdiction over cases in which maximum sentence of life imprisonment
imposed).

ANALYSIS

1. No error in denying departure

Under Kansas statutes, a district court sentencing a defendant convicted of first-
degree premeditated murder shall sentence a defendant to a hard 50 life sentence unless
the sentencing judge finds substantial and compelling reasons support departing to a hard
25 life sentence. See K.S.A. 2014 Supp. 21-6620(c); K.S.A. 2014 Supp. 21-6623.

K.S.A. 2021 Supp. 21-6625(a) establishes a nonexclusive list of mitigating
circumstances, including:

"(1) The defendant has no significant history of prior criminal activity.
(2) The crime was committed while the defendant was under the influence of extreme
mental or emotional disturbances.
....
(4) The defendant was an accomplice in the crime committed by another person, and the
defendant's participation was relatively minor.
(5) The defendant acted under extreme distress or under the substantial domination of
another person.
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 (6) The capacity of the defendant to appreciate the criminality of the defendant's conduct
or to conform the defendant's conduct to the requirements of law was substantially
impaired."

We have interpreted the term substantial as used in this context to mean
"'something that is real, not imagined, and of substance, not ephemeral.'" State v. Grable,
314 Kan. 337, 345, 498 P.3d 737 (2021) (quoting State v. Morley, 312 Kan. 702, Syl. ¶ 3,
479 P.3d 928 [2021]). And a compelling reason "'is one that forces a court—by the case's
facts—to abandon the status quo and venture beyond the presumptive sentence.'" Grable,
314 Kan. at 345 (quoting Morley, 312 Kan. 702, Syl. ¶ 4).

On appeal from a sentencing, this court reviews a district court judge's denial of a
motion requesting a departure sentence for an abuse of discretion. A district court abuses
its discretion when its decision turns on an error of law, its decision is not supported by
substantial competent evidence, or its decision is one with which no reasonable person
would agree. See Grable, 314 Kan. at 341.

In arguing error, Galloway contends the judge failed to properly weigh three
mitigating factors: her extreme emotional distress that meant she acted without capacity,
the disparity between Cunningham's sentence and hers, and her lack of criminal history.
The judge addressed each of these arguments and recognized each as a potential basis for
departure if proven and if found to be substantial and compelling under the facts and
circumstances of the case. But he held that Galloway failed to establish that she acted
without capacity or that she received a disparate sentence. And he held her lack of
criminal history did not present a substantial and compelling reason for departure under
the facts of the case. We find no abuse of discretion in these conclusions.

As to the first point, Cunningham points to the uncontroverted evidence of her
pregnancy at the time of her offense, her loss of custody of her children, and her ongoing
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efforts to complete her reintegration plan. She argues these circumstances caused extreme
emotional distress that meant she lacked substantial capacity. The judge accepted that
extreme emotional distress might be a mitigator, but he explained that Galloway failed to
meet the burden of persuading him those circumstances existed. The judge observed
Galloway, even years after the crime, appeared to be remorseless. She persistently shifted
blame to others. He also noted that the only evidence supporting this factor came from
Galloway's testimony. And he found, "based upon the significant inconsistencies in her
testimony today, that her testimony is unreliable, untrustworthy, and not credible." The
judge also described her statements as self-serving and uncorroborated. In sum, the judge
was not persuaded by Galloway's attempt to mitigate her culpability. Likewise, the jury
determined she premeditated the murder, which reveals the jurors concluded she was able
to plan the murder beforehand. See Galloway, 311 Kan. at 246.

Galloway offers no basis for us to reweigh those determinations. See State v.
Shockley, 314 Kan. 46, 53, 494 P.3d 832 (2021) ("An appellate court does not reweigh
conflicting evidence, evaluate witness credibility, or determine questions of fact, and the
court presumes the district court found all facts necessary to support its judgment."). And
we hold that reasonable people could agree with the district court judge's conclusion that
Galloway's actions before and after the crimes demonstrated that she acted with cold
calculation rather than a lack of capacity that might have mitigated her culpability for the
offense.

Likewise, the judge acknowledged that disparate sentences might be a legitimate
departure factor, but he again held that Galloway failed to establish the factor. Before us,
Galloway argues the district court's sentence here thwarts the sentencing guideline goal
of standardizing sentences of similarly situated defendants. But we agree with the district
judge's conclusion that Galloway and Cunningham are not similarly situated and, thus did
not receive a disparate sentence. As the judge noted, Cunningham pleaded no contest to

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second-degree murder. He faced a lesser charge and spared the State and Fought's family
a trial. The district court judge did not abuse his discretion by concluding Galloway failed
to establish she received a disparate sentence.

Finally, the judge acknowledged that Galloway's lack of criminal history could
constitute a mitigating circumstance supporting departure. But the judge determined this
left her "lack of criminal history as the established mitigating factor." He then held "[t]hat
alone, given the heinous, brutal, and gruesome murder made by someone who today
appears to me to be remorseless, does not rise to the level of a substantial and compelling
reason. For those reasons, the Motion for Durational Departure is denied."

We agree that while the statute recognizes lack of criminal history may support a
departure, the statute does not require a district court depart when a defendant lacks a
criminal history. We have found no abuse of discretion in district courts' denials of
motions for departure sentence when a person convicted of first-degree premeditated
murder had no criminal history and asserted other mitigating factors, including mental
health issues. See Grable, 314 Kan. at 340, 345-46; State v. McLinn, 307 Kan. 307, 348-
49, 409 P.3d 1 (2018). Here, the district court did not abuse its discretion when it did not
grant a departure sentence based on Galloway's lack of criminal history for a crime the
district court found to be "heinous, brutal, and gruesome." Cf. McLinn, 307 Kan. at 349
(no abuse of discretion denying departure motion for murder that court described as
"heinous, atrocious and cruel on so many levels").

Before concluding this discussion, we note that Galloway's amended motion
included other reasons for departure—specifically that she suffered physical, emotional,
and sexual abuse as a child and that she was a victim or witness to domestic abuse. But
she advances no arguments related to these factors on appeal and has thus abandoned

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them. See State v. Bailey, 313 Kan. 895, 897, 491 P.3d 1256 (2021) (party abandons
arguments by failing to adequately brief them).

In summary, we hold Galloway failed to establish that the district court judge
committed an abuse of discretion by rejecting Galloway's mitigation arguments. He made
no error of law, his findings are supported by substantial competent evidence, and
reasonable people could agree with his conclusion that Galloway failed to establish a
substantial and compelling reason to depart from the presumptive hard 50 sentence.

2. Error in consecutive sentences

Galloway also argues the district court judge erred by changing the concurrent
nature of her sentences for arson and interference with law enforcement sentences to
make them consecutive to each other and to her life sentence. The State does not dispute
this position, noting in its brief that "[t]he State agrees with Galloway that this Court's
precedent establishes that the district court was not authorized to modify the grid
sentences to run consecutively to her murder sentence or each other."

As the parties note, under our precedent the district court judge lacked authority
under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2021 Supp. 21-6801 et
seq., to modify the arson and interference with law enforcement sentences on remand.
This lack of authority under the KSGA modifies the previous rule under which "Kansas
courts had broad common law discretion to modify sentences on remand." State v.
Warren, 307 Kan. 609, 612, 412 P.3d 993 (2018). Under pre-KSGA principles, Kansas
courts treated sentences as a single entity, and a remand to correct a sentence on one
count opened the door for the district court to resentence the defendant on any or all
counts. 307 Kan. at 612. But in adopting the KSGA, the Legislature limited this broad
authority because "nothing in the statutory scheme allows resentencing on other

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convictions following the vacating of a sentence on appeal." 307 Kan. at 613. A limited
exception to this rule applies when vacating one sentence renders another sentence
unlawful. See State v. Morningstar, 299 Kan. 1236, 1244-45, 329 P.3d 1093 (2014). This
limited exception does not apply here, and "[b]arring the need to alter a nonvacated
sentence as a matter of law, the district court may only modify the vacated sentence."
Warren, 307 Kan. at 615; see State v. Jamerson, 309 Kan. 211, 216, 433 P.3d 698 (2019);
State v. Moore, 309 Kan. 825, 829, 441 P.3d 22 (2019).

Here, the district court originally ordered concurrent sentences. And Galloway
challenged only the hard 50 sentence in her first appeal. See Galloway, 311 Kan. at 238-
39. On remand, the district court judge's resentencing authority extended to only the hard
50 sentence. In changing Galloway's sentences for arson and interference with law
enforcement from concurrent to consecutive sentences, the district court exceeded its
statutory authority.

The State asks us to remedy this error without remand "[i]f possible." It cites
K.S.A. 60-2106(c) and State v. Fraire, 312 Kan. 786, 481 P.3d 129 (2021), as authority
for this outcome. Fraire does state that "[a]n illegal sentence may be corrected without a
new sentencing hearing." 312 Kan. at 797. But there we also explained that this rule
applies only when, under K.S.A. 60-2106(c), the mandate of this court is determinative of
an action, meaning no further action is necessary. That circumstance arose in Fraire
because this court vacated postrelease supervision, and no further proceedings were
necessary because "a sentencing court has no authority to order a term of postrelease
supervision in conjunction with an off-grid indeterminate life sentence." 312 Kan. at 797
(quoting State v. Cash, 293 Kan. 326, Syl. ¶ 2, 263 P.3d 786 [2011]). In other words, no
judicial action was required. In contrast, here, an order must be entered making the
sentences either concurrent or consecutive. Although we have held there is only one
option—concurrent sentences as imposed at the first sentencing hearing—this court does

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not impose judgment and sentence, district courts do. See K.S.A. 22-3424. We thus must
remand for the district court to enter that order.

3. Due Process Issue Not Reached

Because Galloway is entitled to her requested relief on statutory grounds, we need
not reach her argument that the district court violated her right to constitutional due
process by ordering her to serve consecutive sentences. "Appellate courts generally avoid
making unnecessary constitutional decisions. Thus, where there is a valid alternative
ground for relief, an appellate court need not reach a constitutional challenge." State
ex rel. Schmidt v. City of Wichita, 303 Kan. 650, Syl. ¶ 3, 367 P.3d 282 (2016). We
exercise that discretion here and decline to address the issue.

CONCLUSION

We find no abuse of discretion in the district court's decision not to depart from
the statutorily mandated hard 50 sentence imposed on Galloway. But we vacate the
portion of the sentence requiring Galloway serve consecutive sentences. We remand to
the district court with directions to impose Galloway's sentences to run concurrent with
the life sentence and with each other.

Affirmed in part, vacated in part, and remanded for resentencing consistent with
this opinion.

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