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Appeal from Riley District Court; JOHN F. BOSCH, judge.
BY THE COURT
1. A sentencing court is required to impose the presumptive sentence provided by the Revised Kansas Sentencing Guidelines Act, K.S.A. 2013 Supp. 21-6815(a), unless the court finds substantial and compelling reasons to impose a departure sentence.
2. A substantial and compelling reason to depart downward from a presumptive sentence is a mitigating factor. In order for a mitigating factor to be substantial, the reason must be real, not imagined, and of substance, not ephemeral. In order to be compelling, the mitigating factor 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.
3. Although K.S.A. 2013 Supp. 21-6815(c)(1)(A)-(E) provides a list of potential mitigating factors, the list is nonexclusive, and a sentencing court may rely on nonstatutory factors to depart if they are consistent with the principles underlying the Revised Kansas Sentencing Guidelines Act.
4. If a sentencing court determines that a departure sentence is warranted, it must state on the record at the time of sentencing the substantial and compelling reasons for the departure and make findings of fact regarding those mitigating factors. K.S.A. 2013 Supp. 21-6815(a); K.S.A. 2013 Supp. 21-6817(a)(4).
5. An appellate court's standard of review for departure decisions depends on the issue presented. When we consider whether the record supports an articulated mitigating factor for a departure sentence, we review for substantial competent evidence. When the appellate court determines whether a particular mitigating factor may ever, as a matter of law, be substantial and compelling in any case, our review is unlimited. When the record supports a valid, articulated mitigating factor, we apply an abuse of discretion standard to determine whether the mitigating factor constituted a substantial and compelling reason to depart in the particular case.
6. A departure sentence will be upheld on appeal if any of the mitigating factors or reasons articulated by the sentencing court is substantial and compelling given the particular case. Conversely, if each individual factor, standing alone, is not sufficient to justify a departure sentence, the factors, considered collectively, may constitute a substantial and compelling basis to impose a departure sentence in the particular case.
7. Reasons which may in one case justify departure may not in all cases justify a departure. Rather, an appellate court must evaluate the offense of conviction, the defendant's criminal history, and the departure reason stated, as well as the purposes and principles of the Revised Kansas Sentencing Guidelines.
James W. Garrison, assistant county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellant.
Pedro L. Irigonegaray and Elizabeth R. Herbert, of Irigonegaray & Associates, of Topeka, for appellee.
Before BUSER, P.J., STEGALL, J., and BUKATY, S.J.
While driving under the influence of alcohol, Miles E. Theurer caused a head-on collision which killed Elizabeth Young and Michael Stanley. In keeping with a plea agreement, Theurer pled no contest to two counts of involuntary manslaughter while driving under the influence of alcohol. Under the Revised Kansas Sentencing Guidelines Act (RKSGA), K.S.A. 2013 Supp. 21-6801 et seq., the district court was required to impose presumptive sentences of imprisonment. Instead, the district court sentenced Theurer to two concurrent 41-month sentences but granted his motion for dispositional departure sentences. As a result, Theurer was not imprisoned but was granted 36 months of probation while under house arrest with special conditions, including serving 60 days in jail.
We hold the sentencing court erred in four aspects when it granted Theurer's motion for dispositional departure sentences. First, as a general matter, the sentencing court based its sentencing decision on an error of law by applying an incorrect legal standard. Second, the overriding factor articulated by the sentencing court for granting a departure in this case--that the defendant is an exceptional person with the potential to provide a great benefit to society--is not a substantial and compelling reason to grant departure sentences. Third, some of the sentencing court's other articulated reasons for granting departure sentences were not supported by substantial competent evidence. Fourth, those reasons enunciated by the sentencing court which were supported by substantial competent evidence, when considered together, did not provide a substantial and compelling reason to grant departure sentences given the circumstances of this involuntary manslaughter case.
Accordingly, we reverse the judgment of the sentencing court, vacate the sentences imposed, and remand the case to the district court with directions for resentencing.
Factual and Procedural Background
On Saturday, May 12, 2012, Theurer received a bachelor of science degree in agriculture from Kansas State University (KSU). The following evening, Theurer and three friends celebrated the occasion by visiting the Mustang Gentlemen's Club, a Junction City strip club. Several hours later, in the early morning hours of Monday, May 14, 2012, with Theurer driving a Silverado pickup truck, the four men began the return trip to Manhattan.
Eyewitnesses described Theurer as driving erratically, too fast for the circumstances, and swerving on the roadway. At about 2:45 a.m., Theurer approached a construction zone on Fort Riley Boulevard/Highway K-18, with marked eastbound and westbound lanes. Although he was traveling eastbound, Theurer entered the westbound lane, driving in the wrong direction.
Ronnie Loggins, who had been following Theurer's truck and had properly entered the eastbound lane, flashed his headlights, honked his horn, and pulled next to Theurer, waving his arms in an effort to alert him that he was driving the wrong way. Theurer did not respond to these warnings but continued traveling eastbound at about 55 miles per hour in the westbound lane of the construction zone.
A short time later, Theurer's truck collided head-on with a westbound Buick LeSabre near Stagg Hill Road. The automobile was driven by Young, a 31-year-old mother of two children. The passenger was Stanley, a 30-year-old father of two children. Due to the force of the collision, the Buick went " almost straight up in[to] the air." The vehicle was totaled, with the front end " completely smashed."
Young and Stanley had " severe trauma" and were killed instantly. In an affidavit filed in support of the arrest of Theurer, Officer Calvin Sanders of the Riley County Police Department averred:
" The coroner results indicated that Young 'expired as a consequence of overwhelming injuries with damage to the central nervous system that cause[d] . . . instant death' and both died as [a] result of 'atlanto-occipital separation.' This means that both had their necks broken at the skull with a tear of the spinal cord due to the impact of the collision."
Officer Sanders was dispatched to the collision. As he approached Theurer's truck, he " immediately smelled the odor of alcoholic beverage from inside the vehicle." When asked what happened, Theurer told the officer, " 'In all honesty, I thought I was in the correct lane.'"
Theurer and his friends were seriously injured and taken to area hospitals. At Mercy Hospital, Theurer's blood was drawn for alcohol testing. At that time, he volunteered to Officer Sanders, " 'I'll be honest; I'm not going to say I didn't have anything to drink.'" After waiving his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Theurer advised Officer Sanders that he had consumed two Bud Light beers at a bar. Theurer told the officer he had stopped drinking alcohol 30 minutes prior to leaving Junction City for Manhattan. When Theurer was asked if he believed he was under the influence of alcohol, he replied, " 'I mean I just had a couple.'" Theurer also said he did not notice anyone in a vehicle trying to get his attention before the collision.
Andrew Mason, a passenger in Theurer's truck, was later interviewed by Officer Sanders. According to Mason, the men went to the strip club at about 8 p.m. on Sunday and finished drinking about 30 minutes before leaving Junction City early Monday morning to return home to Manhattan. Mason claimed that prior to the collision Theurer drank one or two bottles of beer.
At the scene of the collision, Officer Sanders found in the passenger's compartment of Theurer's truck a Coors Light beer can, a " 'Coors Light case,'" and a " 'Maker's Mark liquor bottle.'" Theurer's blood sample was taken to the Kansas Bureau of Investigation laboratory for forensic testing. The results revealed that Theurer's blood-alcohol content was .19--more than twice the legal limit. See K.S.A. 2011 Supp. 8-1567(a)(2).
As a consequence of the collision, Lance Schmidt, a passenger in Theurer's truck, suffered a closed head injury which necessitated therapy at the Madonna Rehabilitation Hospital in Lincoln, Nebraska, in an effort to regain the use of his arms. Mason, also received physical therapy for his injuries. Joseph Iliff, another passenger in Theurer's truck, was also injured, and Theurer's right foot had been almost amputated as a result of the accident impact.
After the collision, Theurer attended classes at KSU through the summer and fall semesters of 2012. On April 9, 2013, the State charged Theurer with two counts of involuntary manslaughter while driving under the influence of alcohol, severity level 4 person felonies in violation of K.S.A. 2011 Supp. 21-5405(a)(3)--see K.S.A. 2011 Supp. 8-1567(a)(2)--and two counts of aggravated battery, severity level 5 person felonies, in violation of K.S.A. 2011 Supp. 21-5413(b)(2)(A), for the injuries sustained by
Schmidt and Mason. Theurer surrendered to authorities, and he was released on bond.
On May 7, 2013, in keeping with a plea agreement, Theurer entered pleas of nolo contendere to two counts of involuntary manslaughter. In return, the State dismissed the aggravated battery charges and promised not to file additional charges related to the collision. The State also agreed to recommend that Theurer serve the standard presumptive RKSGA prison sentence for each of the involuntary manslaughter convictions. The sentences were to run concurrent with one another. If followed by the sentencing court, the State's recommendations meant that Theurer would serve 41 months in prison. See K.S.A. 2011 Supp. 21-6804(a). In keeping with the plea agreement, however, Theurer reserved the right to request a departure from serving the presumptive prison sentences. After being informed of the plea agreement, District Judge John F. Bosch accepted the pleas and found Theurer guilty of two counts of involuntary manslaughter.
After the plea hearing, Theurer filed a motion for downward durational and dispositional departure sentences. He identified 17 mitigating factors as substantial and compelling reasons to depart from the presumptive RKSGA sentences of imprisonment: (1) Theurer's " unlawful conduct was aberrant behavior" ; (2) Theurer " has provided extraordinary acceptance of responsibility" ; (3) Theurer " has no criminal history," and is " relatively young and a very good candidate for continued rehabilitation" ; (4) Theurer has " Type 1 diabetes, . . . currently uses an insulin pump," and takes medication for high blood pressure; his diabetes is difficult to stabilize and needs close monitoring, which is " expensive and requires specialized professional care," including seeing a " specialist 2-3 times per year" ; (5) Theurer " maintained a 4.0 GPA during high school" and " participated in numerous extra-curricular organizations" ; (6) Theurer completed his bachelor's degree and " [d]uring his undergraduate years [he] continued to be an outstanding student, maintaining a 3.722 GPA, and participating in many extra-curricular programs," and thus he " has played an active and positive role in the community throughout his education" ; (7) Theurer " currently has two academic years remaining in his pursuit of two post-graduate degrees" in veterinary medicine and " Diagnostic and Pathology Medicine" ; (8) Theurer " is currently involved in a research project that has the long term potential to increase profitability in the beef industry, and reduce the use of antibiotics on food animals" ; (9) Theurer " is currently developing an Antimicrobial Resistance Seminar that will bring both medical and veterinary professionals together" and " be beneficial to the treatment and control of a variety of diseases" ; (10) Theurer " was a founding member of the Food For Thought Organization," a " grass-roots group . . . started by students coming together to discuss ways to meet the challenges of misconceptions about an agricultural industry removed from urban consumers" ; (11) Theurer " has accumulated approximately $102,000 in outstanding student loans," and " [s]ociety benefits from these loans being repaid" ; (12) Theurer " wishes to continue his education after sentencing so that he may reach his potential and do the maximum amount of good for society" ; (13) Theurer " has already begun the rehabilitation process" by completing a " course of drug and alcohol awareness, and has begun the process of completing an Alcohol Evaluation through Pawnee Mental Health Care Services" ; (14) Theurer " has on numerous occasions told others about the terrible mistake he made the night of the accident," he " has shared with others the tragic consequences that occurred due to his poor judgment in deciding to get behind the wheel after consuming alcohol," he " recognizes that he is not the first, or likely the last, person who will make this mistake," and he " has contacted the administrators of several institutions seeking the opportunity to share his story and the lessons that he has learned with young students" ; (15) Theurer " is fortunate to have a caring and supportive family, including his father, mother, and two older brothers, to whom he is very close" and who " have continued their support for him through this difficult time in his life" ; (16) Theurer " has numerous friends that continue to support him" ; and (17) Theurer " has also developed an extensive network of professionals
and academics who believe that society would benefit from a departure from the sentencing guidelines [in this case]."
In support of his departure motion, Theurer provided academic transcripts, descriptions of his current educational projects, a breakdown of his student loan debt, a certificate of completion from an on-line alcohol and drug awareness course, letters expressing interest in hearing him speak about drunk driving, and over 100 letters submitted as character references.
In his departure motion, Theurer proposed that instead of the district court imposing the presumptive sentences of imprisonment, the court should impose an " 'alternative' or 'unique' sentence" :
" Mr. Theurer proposes a sentence that, if probation alone is insufficient, would combine probation and house arrest during the school year with incarceration of some kind (potentially the Riley County Jail) during any time off from his academic program that he may otherwise enjoy. The court could prevent Mr. Theurer from attending social events, parties, restaurants, movie theatres, and any and all other recreational activities. Mr. Theurer does request however, that he be allowed to fulfill his obligations stemming from his proposals to local institutions to warn students and members of the dangers of drinking and driving, that he be allowed to complete his academic requirements, and that he be allowed to receive the necessary medical care. At the conclusion of Mr. Theurer's academic program, house arrest could be continued as long as the court may deem just and appropriate. This option allows [him] to do the maximum amount of good for society, while paying his debt to the same."
A presentence investigation (PSI) report was prepared to assist the sentencing court. In this report, Theurer was asked to provide his version of the crimes of conviction. Theurer wrote: " I made a mistake. I consumed alcohol and I drove my vehicle. I am truly sorry for all consequences."
The PSI report also included statements written by family members of Young and Stanley. Stanley's father wrote that he had a mental breakdown after " losing my only child, my boy, my son." The father said he could not work for 7 weeks and fell behind on his payments, including his house payments. He described how his son's own children, 11 and 9 years old, were now fatherless. Stanley's father observed that Theurer " still get[s h]olidays and [b]irthdays," but that his own family has only memories.
Stanley's stepmother wrote that " with [Stanley] gone it seems the world is a darker place" and " [t]here is a void that can't be healed." She said she had " watched my family fall apart" and that her husband " has lost his zest for life." She described how Stanley's daughter " took all his clothes clean and dirty [and] put them in 1 big bag so she can keep his scent forever." She described how Stanley's son " became suicidal, talking about taking his own life just to be in the box with his Dad."
Stanley's daughter wrote: " I'm really sad . . . . I will never hear or feel him pick me up and swing me around [and] sing to me." She said Stanley " played silly games, gave piggy back rides, [and] rode my [tricycle] to make me laugh. . . . We had tea [parties], watch[ed] movies together." She said: " He will miss all my school events, sports events, . . . never see me graduate or go to college, never see me get married or be there to give me away, never hold my babies or be a grandpa like [P]apa."
Stanley's son wrote: " I want my Daddy, but he's never coming home again." The boy said: " I wanted to die to be with him" and that " I had to see a special doctor. I now take [medicine] to help me." He also said: " I know I can't hurt myself, 'cause then [N]ana would die if I died."
Stanley's mother wrote that the " loss of my son has impacted me greatly." She " had to increase [her] medications" to the maximum dose and yet still has " a hard time getting motivated" and " concentrating at work." She stated she would " 'start to cry, and can't stop'" and also said: " 'I don't think that anyone can ever understand how the loss of a child impacts a person's life.'" Other relatives of Stanley also submitted written statements.
Judge Bosch presided over the sentencing hearing which occurred on June 17, 2013. In addition to considering the departure pleadings, PSI report, drug and alcohol evaluation report, and written victim impact statements, the sentencing court listened to personal statements made at the hearing.
Stanley's stepmother mentioned at sentencing that Stanley's daughter " looks for her daddy at night. She gets up, walks through the house, walks up to her dad, stands there and talks to him." She said Stanley's son " was having breakdowns in the classroom, crying uncontrollably," and " has been under counseling heavily for a whole year."
A letter was read from Young's daughter, who was also present at sentencing. She detailed numerous personal activities and anticipated events of her life which her mother would never share. Speaking also for her younger brother in the letter, she said: " [W]e were both completely robbed of everything that could have happened in the future."
Finally, Stanley's father, referring to Theurer's proposal to make speeches about drunk driving, said, " Well, that's a good idea, but I think he should get the full effect of it, of going and doing his time and then coming back and helping kids so he can tell them what to expect." It is noteworthy that all of the statements from the victims' families emphasized the need for Theurer to serve a prison sentence for his crimes.
At the sentencing hearing, Theurer also addressed the court. Theurer apologized to the families of Young and Stanley, especially the victims' children. He apologized also " to the passengers that were in my vehicle that night of the accident," to " the community, to the officers and emergency personnel that responded to the scene," to his " family and friends," and to the " judge, as representative, as the State of Kansas judicial system, for having to take the time and effort to process the case before you."
Theurer asked the sentencing court " to grant the downward departure to allow me the opportunity to talk to the high school, college, [and] professional students, [and to] explain the true consequences and their effects of drinking and driving." Theurer said his " goal . . . is to explain the nightmare that I have been through, so they will not make the same tragic, dumb mistake that I made that evening." Theurer said, " While there's no amount of money I could pay, time I could serve, community service that I can do to ever repay my debt to society," he could " still be a positive influence on society and help people from making some of these same tragic mistakes in the future."
During the hearing, the sentencing court quoted extensively from character reference letters written in support of Theurer. These letters were written by Theurer's friends, fellow students, former teachers, KSU faculty and administrators, and individuals associated with agriculture, including the Kansas Secretary of Agriculture.
At the hearing, the sentencing court made several factual findings and legal conclusions. It found that Theurer had a low risk of reoffense based on a Level of Service Inventory Test (LSI-R test) and the Pawnee Mental Health Care Services drug and alcohol assessment which showed a " low probability that Mr. Theurer has a substance dependence disorder." The sentencing court also found that Theurer was remorseful and had no criminal history, including " no evidence that he has ever broken the law before." It made findings regarding Theurer's diabetes and his use of an insulin pump. Additionally, the district court found Theurer has a supportive family and a " [g]ood" employment and education record. It found Theurer had engaged in " rehabilitation efforts" by staying in school, pursuing his degree, and presenting " a proposal that . . . instead of sitting in prison for the next three years . . . he go out into society to high schools, to colleges, to universities, to whoever, and tell them his story, to educate them." Finally, the sentencing court found Theurer was not a threat to public safety, and he had accepted responsibility for his crimes.
Judge Bosch granted Theurer's motion for dispositional departure sentences. In ruling from the bench, the district judge extensively addressed what he considered were Theurer's exceptional personal characteristics:
" Mr. Theurer would be, and it's been proposed, an excellent person to speak. People have described him in the letters as an 'impactful speaker' with the 'ability to capture an audience.' He's 'well-spoken.' He will 'be an advocate against drunk driving' if allowed to speak. 'When he speaks, people listen.' 'The mothers and fathers of the thousands lives he can reach through speaking engagements will be grateful.' He could 'share his story throughout the nation.' He is an 'articulate, convincing speaker.' Basically, other than this incident, which has been described as aberrant behavior, Mr. Theurer has led a rather perfect life, in spite of the fact he's diabetic, in spite of the fact he could not play sports, which might account for why he has been so involved in things. I don't think there was a thing in high school he wasn't involved in. I don't think there was a thing in college that he wasn't involved in.
" One of his professors . . . indicated in the past 10 years, as long as this professor has been teaching, there's not been another person who has been more involved than Mr. Theurer. . . .
. . . .
" I don't believe any of the factors that I have mentioned, Mr. Theurer, standing alone, would justify a downward departure. But I can't imagine a situation where we have--I ever have someone come before me again where they have done everything that society expects to be done by a person except for this one thing.
" You have been described as, you know, a role model to children, described as a stellar student, as a star student. It's too many to cover, but you are an exceptional person that I find to be an atypical case. And in this case that, when considering the totality of all of the facts of your life up to this point, I find that you should be granted a downward departure and that there are substantial, compelling reasons when considered in all their totality. . . .
" So what the Court will do for a sentence is I will require that you serve as much time in the Riley County Jail as I can when I place you on probation, which is 60 days. . . . You will be placed on 36 months of probation with the Court Service Officer for Riley County . . . . And for you to use your God-given talents, and if you can reach one person it will be worth it during those 36 months. I have no doubt that maybe you can do the same thing if you spent that time in prison, but I don't know.
" What I think is best for society is that you get your degree, that you realize that you have a lot of good to do with your life, not just for yourself, but you have, really, three people's lives on your shoulders. You have everything that Mr. Stanley would have done good, everything that Elizabeth Young could have done during their lifetime. And you're going to have to make up . .., to society, what you've done. And I think this might be a start where, if you do as I think you can, as you are such an atypical, such a unique person with such skills, that I think maybe you can touch some people out there. And so the 60 days you're sitting in jail, I want you to put together a written proposal for how you are going to do what you say you can do. And . . . I'm going to order that during the 36 months that you are on probation that you talk to no less than 36 either high schools, colleges, [or] church groups.
" . . . And if you can get--reach through to one person and save one life or make an impact on one person, then I think that that is the better thing for society." (Emphasis added.)
After the hearing, the sentencing court summarized its reasons for ordering the departure sentences in its journal entry of judgment:
" Court finds Defendant an a-typical case. Totality of circumstances of factors listed on the record include: good grades in school, lack of criminal record, diabetic medical condition, Defendant's good character, Defendant's good speaking ability, [and] Defendant's letters of recommendation are ...