State v. Rodriguez

933 P.2d 164, 23 Kan. App. 2d 559, 1997 Kan. App. LEXIS 34
CourtCourt of Appeals of Kansas
DecidedFebruary 28, 1997
DocketNo. 75,158
StatusPublished

This text of 933 P.2d 164 (State v. Rodriguez) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Rodriguez, 933 P.2d 164, 23 Kan. App. 2d 559, 1997 Kan. App. LEXIS 34 (kanctapp 1997).

Opinion

Pierron, J.:

This is an appeal of the imposition of a presumptive sentence under the Kansas Sentencing Guidelines Act (KSGA). Joseph Rodriguez pled guilty to one count of indecent liberties with a child, a violation of K.S.A. 21-3503(a)(l). Rodriguez filed a motion to depart, which was denied by the district court. He appeals the denial of his motion. We affirm.

At sentencing, the district court noted the motion for a dispositional and durational departure and asked Rodriguez’ counsel if he could incorporate his arguments for departure with his comments regarding sentencing. Rodriguez’ attorney replied, “I can, Judge,” and also stated there was no objection to Rodriguez’ criminal history score of C.

The court denied Rodriguez’ request for a durational and dis-positional departure. It relied, in part, upon Rodriguez’ criminal history in denying the departure request.

[560]*560Rodriguez argues the district court did not have authority under K.S.A. 21-4718(a)(l) to hold a joint hearing and, furthermore, the joint hearing resulted in a prejudiced tribunal denying him of his constitutional due process rights.

K.S.A. 21-4718(a)(l) states: “Whenever a person is convicted of a felony, the court upon motion of either the defendant or the state, shall hold a hearing to consider imposition of a departure sentence.”

The language of K.S.A. 21-4718(a)(l) requires a hearing to be held on every motion to depart. However, the language of the statute is silent as to whether this hearing may be combined with the sentencing hearing, or whether it must be heard independently.

In State v. Bost, 21 Kan. App. 2d 560, 566, 903 P.2d 160 (1995), this court interpreted K.S.A. 21-4718(a)(l):

“The KSGA does not expressly state that a motion for departure must be filed prior to sentencing. However, provisions of the KSGA provide that the disposition of a departure sentence must be resolved prior to or at the sentencing hearing. K.S.A. 1994 Supp. 21-4718(a) provides that if a defendant or the State files a motion to depart, the court shall hold a hearing to consider a departure sentence. Additionally, the hearing shall be scheduled so that both parties have adequate time to prepare to argue for or against departure.” (Emphasis added.)

Rodriguez’ attorney stated to the district court that he was prepared to argue the departure motion. Therefore, following the analysis in Bost, Rodriguez’ departure motion hearing met the requirements put forth in K.S.A. 21-4718(a)(l).

Rodriguez argues that holding a combined hearing on his motion to depart and sentencing creates an unjust result because the district court was able to consider his criminal history score in denying his motion to depart. He argues that in State v. Richardson, 20 Kan. App. 2d 932, 941, 901 P.2d 1 (1995), this court held a defendant’s criminal history cannot be used as justification for a departure sentence when the sentencing guidelines have already taken the defendant’s criminal history into account in determining the presumptive sentence within the grid.

The district court’s ruling on Rodriguez’ motion clearly illustrates why Richardson should only apply in granting a motion to depart rather than denying it.

[561]*561“Under the circumstances, Mr. Rodriguez has two prior convictions, well, that is an incorrect statement. He has two prior adjudications of offenses which had he been an adult would have been considered to be felony offenses, which are counted as convictions for purposes of the Kansas sentencing guidelines act. That tells me that Mr. Rodriguez understands in many respects the criminal justice system. He understands that to a certain degree that individuals are responsible for their own conduct. . . . Mr. Rodriguez also is of age. I think mentally that he is fully capable of understanding that he has a responsibility to individuals who are not yet of consensual age with regard to sexual acts, and did nothing to prevent that sexual act from taking place. I simply am not prepared at this point in time, based upon the testimony that’s offered, to conclude that there is substantial and compelling reasons to depart from the presumed sentences. I think the legislature took it into consideration in setting the crime definition and in setting the sentencing guidelines act that there would be these sets of circumstances and something more has to be offered to me to indicate that merely going along with the conduct, in fact, make them a participant as that phrase is used in the negating factors list.”

The Richardson court stated that “[a] defendant’s criminal history cannot be used as justification for a departure sentence when the sentencing guidelines have already taken the defendant’s criminal history into account in determining the presumptive sentence within the grid.” 20 Kan. App. 2d 932, Syl. ¶2. In the case at bar, the district court looked at the criminal history and found the legislature had intended to sentence defendants, such as Rodriguez, within the appropriate presumed sentencing grid. Upon making that finding, the district court was cognizant of its authority to depart; however, it concluded there was no substantial and compelling reason to override that presumptive sentence and, therefore, denied the motion to depart.

Rodriguez’ entire argument rests on the notion that he has a right to appeal because the district court’s knowledge and consideration of his criminal histoiy resulted in prejudice. However, even if this court could find Rodriguez is entitled to appeal under K.S.A. 21-4721(a) and (e), Rodriguez has not asserted in his brief that the district court was presented with a substantial and compelling reason to depart. “ ‘Any point specified on appeal which is neither argued nor briefed is deemed to have been abandoned.’ ” State v. Vincent, 258 Kan. 694, 696, 908 P.2d 619 (1995) (quoting State v. Mims, 222 Kan. 335, Syl. ¶ 6, 564 P.2d 531 [1977]).

[562]*562Finally, Rodriguez argues that his due process rights were violated because the district court’s consideration of his criminal history score denied him a fair tribunal. Rodriguez argues this case is analogous to State v. Fisher, 249 Kan. 649, 822 P.2d 602 (1991). In Fisher,

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Related

State v. Fisher
822 P.2d 602 (Supreme Court of Kansas, 1991)
State v. Lakey
920 P.2d 470 (Court of Appeals of Kansas, 1996)
State v. Boyd
891 P.2d 358 (Supreme Court of Kansas, 1995)
State v. Mares
893 P.2d 296 (Court of Appeals of Kansas, 1995)
State v. Bost
903 P.2d 160 (Court of Appeals of Kansas, 1995)
State v. Starks
885 P.2d 387 (Court of Appeals of Kansas, 1994)
State v. Mims
564 P.2d 531 (Supreme Court of Kansas, 1977)
State v. Richardson
901 P.2d 1 (Court of Appeals of Kansas, 1995)
State v. Vincent
908 P.2d 619 (Supreme Court of Kansas, 1995)

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Bluebook (online)
933 P.2d 164, 23 Kan. App. 2d 559, 1997 Kan. App. LEXIS 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rodriguez-kanctapp-1997.