State v. Swartz

                         NOT DESIGNATED FOR PUBLICATION

                                           No. 123,008


                                       STATE OF KANSAS,


                                      AARON T. SWARTZ,

                                 MEMORANDUM OPINION

       Appeal from Sherman District Court; SCOTT SHOWALTER, judge. Opinion filed April 2, 2021.

       Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and


       PER CURIAM: Aaron Swartz appeals the sentence for his conviction of felony
possession of methamphetamine with intent to distribute. We granted Swartz's motion for
summary disposition under Supreme Court Rule 7.041A (2020 Kan. S. Ct. R. 47) and
now affirm.

       Swartz pleaded guilty to one count of possession of methamphetamine with intent
to distribute in July 2018, and he was released on supervised bond while he awaited
sentencing. But after he failed a mandatory drug screening, Swartz moved to Nebraska
without informing or receiving authorization from the court. Not long after, Swartz was
arrested in Nebraska and convicted of possession of methamphetamine with intent to

distribute and possession of a firearm during the commission of a felony. While he was
incarcerated for those offenses, Swartz completed several substance-abuse treatment

       After serving his Nebraska prison sentence, Swartz returned to Kansas so he could
be sentenced for his July 2018 conviction. Swartz requested a dispositional departure for
that offense—in other words, that he be placed on probation instead of receiving a prison
sentence—due to his successful completion of residential drug treatment and several
other substance-abuse programs in Nebraska. Swartz also pointed out that he was a
nonviolent offender, had remained clean and sober, found stable housing, was looking for
gainful employment, and desired to reconnect with his daughters. Alternatively, Swartz
asked the court to impose a durational departure and reduce the 108-month presumptive
sentence for his conviction to a 12-month prison sentence.

       The district court denied Swartz's probation request, noting Swartz had absconded
to Nebraska when he was on supervised bond in this case. But recognizing Swartz's other
progress, the court partially granted his request for a durational departure and imposed a
54-month prison sentence, followed by 36 months of postrelease supervision.

       Swartz raises two arguments on appeal. He argues the district court violated his
constitutional rights under Apprendi v. New Jersey, 

530 U.S. 466


120 S. Ct. 2348

, 147 L.
Ed 2d 435 (2000), when it relied on his criminal history to sentence him without first
requiring that his criminal history be proven to a jury beyond a reasonable doubt. And he
argues that the district court should have sentenced him to probation as he requested,
given his successful completion of drug treatment when he was incarcerated in Nebraska.
We find neither argument persuasive.

       Apprendi held that any fact increasing the penalty for a crime—other than a
previous conviction—must be submitted to a jury and proved beyond a reasonable doubt.


530 U.S. at 490

. Our Supreme Court adopted Apprendi's analysis in State v. Ivory, 

Kan. 44

, 46-48, 

41 P.3d 781

(2002), holding that the use of prior criminal history during
sentencing does not violate a defendant's constitutional rights. See also State v. Fewell,

286 Kan. 370

, 396, 

184 P.3d 903

(2008) (affirming Ivory). The court reasoned that
previous convictions are a sentencing factor and not an element of the crime. 

Ivory, 273
Kan. at 46

. We are duty-bound to follow this precedent. See State v. Meyer, 

51 Kan. App.

1066, 1072, 

360 P.3d 467

(2015). Swartz's argument under Apprendi is therefore
without merit.

       We thus turn to Swartz's contention that the district court should have sentenced
him to probation. This court has jurisdiction to consider this argument because Swartz's
departure requests were partially successful—the district court granted his request for a
durational, though not a dispositional, departure. See State v. Looney, 

299 Kan. 903

, 906-

327 P.3d 425

(2014). But a district court has broad discretion in determining whether
to grant a defendant's request for a dispositional departure. State v. Floyd, 

296 Kan. 685


294 P.3d 318

(2013). A court only abuses this discretion if no reasonable person
would take the view it adopted or when its decision is based on an error of law or fact.
State v. Marshall, 

303 Kan. 438

, 445, 

362 P.3d 587


       Applying these principles here, the district court did not abuse its discretion when
it denied Swartz's dispositional-departure request. Swartz apparently was able to maintain
his sobriety and successfully completed drug treatment programs while he was in
Nebraska—progress the district court considered when granting his request for a
durational departure. But the fact remains that Swartz absconded to another state while he
was on bond and awaiting sentencing in this case. In light of this history, the district
court's decision to sentence Swartz to a prison term, the presumptive disposition under
the Kansas sentencing guidelines, rather than probation was not unreasonable.



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