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State v. Brune

Supreme Court of Kansas

February 2, 2018

State of Kansas, Appellee,
v.
Alex W. Brune, Appellant.

         SYLLABUS BY THE COURT

         It is generally within a sentencing judge's discretion to determine whether a sentence should run concurrent with or consecutive to another sentence.

         Appeal from Johnson District Court; Sara Welch, judge.

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

          Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

          OPINION

          STEGALL, JUDGE.

         On July 9, 2014, Alex W. Brune stabbed Brian Baskind and his father, Clifford Preston, to death while burglarizing Baskind's home in Lenexa. During the course of the crime, Brune was shot in the abdomen, which necessitated a 911 call from Brune after the killings but while he was still in the home.

         While recovering at the hospital, Brune told law enforcement officers two men kidnapped him from his home and took him to the house where they forced him into the basement. According to Brune, a struggle ensued when he tried to escape; the younger man shot Brune; and Brune stabbed both men.

         As the criminal investigation progressed, however, officers discovered Brune had concocted the story in an attempt to conceal the botched burglary. While searching Baskind's home, officers located a mask and painted airsoft pistol belonging to Brune. Brune's cell phone revealed he had recently visited a website about how to "avoid leaving DNA at a scene" and an internet search asking, "What is the rich part of Kansas City?"

         Brune eventually pled guilty to two counts of first-degree felony murder. The plea agreement provided the parties were "open on concurrent/consecutive counts." At sentencing, Brune presented testimony from Dr. Mitchell Flesher, a licensed psychologist. Although Brune "demonstrated a slightly above average number of externalizing or acting out behaviors, " Dr. Flesher observed that he did not exhibit "any significant symptoms in . . . things like anxiety and depression and physical health complaints, emotional distress, paranoia, [or] unusual sensory experiences." And although Brune expressed "fairly prominent anxiety-related concerns" and "reexperiencing symptoms" that are consistent with post-traumatic stress disorder (PTSD), Dr. Flesher did not diagnose Brune with PTSD. In fact, Dr. Flesher did not diagnose Brune with any mental illness.

         Following Dr. Flesher's testimony, members of the victims' families gave statements to the court. And after describing to the court the brutal nature of the stabbings, the State requested consecutive sentences. Brune asked the court for leniency, citing the milestones in the lives of his children that he had already missed, as well as those he would miss if the sentences were imposed consecutively. He also accepted responsibility for his actions and told the court he intended to enroll in programs to help reform his behavior. Following closing arguments, the district court decided to impose consecutive hard 25 life sentences, meaning Brune will not be eligible for parole for 50 years.

         Brune timely appealed his sentence to this court, and jurisdiction is proper. See K.S.A. 2016 Supp. 22-3601(b)(3) (providing for direct appeal to the Supreme Court from a district court's final judgment when a maximum sentence of life imprisonment has been imposed).

         Brune argues the court erred when it refused to run his sentences concurrent to each other. Such decisions traditionally fall within the sound discretion of sentencing courts. State v. Horn, 302 Kan. 255, 256-57, 352 P.3d 549 (2015). "In fact, this principle of a judge's discretion is so entrenched that the legislature determined a defendant cannot raise the issue of whether imposing consecutive sentences is an abuse of discretion if the sentence is imposed under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq." State v. Mosher, 299 Kan. 1, 2-3, 319 P.3d 1253 (2014). But because Brune's sentences are classified as off-grid crimes, the KSGA does not preclude our review. See State v. Baker, 297 Kan. 482, 484, 301 P.3d 706 (2013).

         Brune must nevertheless demonstrate the district court's decision to run his sentences consecutive to rather than concurrent with each other was an abuse of discretion. See Mosher, 299 Kan. at 3. A district court abuses its discretion if its decision is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or ...


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