BY THE COURT
generally within a sentencing judge's discretion to
determine whether a sentence should run concurrent with or
consecutive to another sentence.
from Johnson District Court; Sara Welch, judge.
Maharry, of Kansas Appellate Defender Office, was on the
brief for appellant.
M. Gontesky, assistant district attorney, Stephen M. Howe,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
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.
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.
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?"
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.
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.
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).
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).
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 ...