Wе granted Sean Bird’s petition for review seeking reversal of the Court of Appeals’ decision vacating the district court’s imposition of a downward durational departure sentence. Bécause we conclude substantial competent evidence supports at least two of the mitigating factors found by the district court аnd those factors, when considered together, constituted substantial and compelling reasons to depart, we reverse the panel’s decision and affirm the district court’s departure sentence.
Factual and Procedural Background
After Bird was arrested for robbing a Taco John’s restaurant, law enforcement officers executed a search warrаnt on his home and discovered controlled substances and drug paraphernalia. Based on this evidence, the State charged Bird with robbery, criminal threat, possession of cocaine, possession of marijuana, and possession of drug paraphernalia. Bird eventually pled guilty to possession of cocainе, and in return the State dismissed the remaining drug charges. A juiy convicted Bird of criminal threat and a lesser-included theft charge but acquitted him of robbery.
Prior to sentencing, Bird filed a motion for a downward dura-tional and dispositional departure. The motion did not specify the crimes for which he sought a departure, but it did cite several factоrs in support of his request, including his acceptance of responsibility for his actions; his lack of capacity for judgment at the time of the offense because of a mental impairment; and his promise to participate in a proposed rehabilitation plan.
At die sentencing hearing, the State opposеd any departure and sought the maximum penalty for each conviction—42 months’ imprisonment for possession of cocaine, 7 months’ imprisonment for criminal threat, and the 12 months already served for the theft conviction. At the hearing, Bird also was sentenced for battery and theft convictions stemming from a similar but separate offense at a Dillon’s store. In that case, the State sought a controlling sentence of 12 months’ imprisonment with the sentence to run consecutive to his sentences in this case.
Consistent with this message, Bird testified he committed the two robberies reflected in his criminal history with “[n]o weapon, no force, [and] no threat.” He further explained that he committed the prior robberies within 24 hours of each other and in the 2-week period preceding the robberies his father died and he lost his 6-month-old daughtеr to Sudden Infant Death Syndrome. Bird also characterized a prior conviction for residential burglary as a nonviolent crime that occurred when he entered a friend’s house to reclaim property he thought was his.
Bird testified he did not begin using drugs until he was age 23, about the time his mother died, and that he was clean for 6 years until the deaths оf his father and infant daughter. Bird stated he never sold drugs and the cocaine found in his home was residue from an empty baggie. Bird expressed his willingness to complete a recovery program and indicated he had job opportunities awaiting him and a support network of family and churches.
Before imposing sentence, the district court characterized Bird’s life as “a Nashville source of lyric for music,” and described Bird’s thefts as “impulse type crimes” unlikely to result in large economic gain. The court noted the lack of any apparent logic to Bird’s high-risk, low-reward crimes, and further pointed out that the thefts at both Taco John’s and Dillon’s resulted in only brief physical contact with the victims and limited monetary and property damage.
Ultimately, the district court denied Bird’s probation request but concluded substantial and compelling reasons justified a departure from the sentencing guidelines for Bird’s conviction for cocaine possession. The court departed to a 24-month sentence from the guidelines range of 37 to 42 months and, in doing so, relied on
The State appealed the district court’s departure, making a two-pronged argument: (1) The departure reasons were unsupported by substantial competent evidence; and (2) the departure reasons were not substantial and compelling as a matter of law. Specifically, the State contended the district court improperly relied upon reasons related only to the robbery and theft convictions but not to the cocaine possession conviction for which the departure was granted.
Substantially agreeing with the State, the Court of Appeals pаnel concluded “mitigating factors that appear to have been related to crimes other than the crime of conviction may not be considered ‘substantial and compelling reasons’ to depart [from] the guidelines.” State v. Bird, No. 103,855,
The panel next rejected the remaining two mitigating factors found by the district court—nature of the crime and acceptance of responsibility—concluding these factors were inconsistent with the principles underlying the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. Bird,
Two of the Factors the Distriсt Court Relied upon to Depart Were Supported by Substantial Competent Evidence and Provided Substantial and Compelling Reasons to Depart.
On review, Bird contends the panel erred in concluding the mitigating factors cited by the district court did not relate to the crime of conviction. Further, Bird contends the panel erred in сoncluding as a matter of law that two of the factors were inconsistent with the guidelines.
Appellate Review of Departure Decisions
A sentencing court is required to “impose the presumptive sentence provided by the sentencing guidelines . . . unless the judge finds substantial and compelling reasons to impose a departure.” K.S.A. 21-4716(a). “To be substantial the reason must be real, not imaginеd, and of substance, not ephemeral.” State v. Blackmon, 285 Kan. 719, 724,
Although K.S.A. 21-4716(c) contains a list of potential departure factors, the list is nonexclusive, and a sentencing court сan rely on nonstatutory factors to depart as long as the factors are consistent with the principles underlying the KSGA. See
Our standard of review for departure decisions depends on the issue presented. When we consider whether the record supports an articulated reason for departing, we review for substantial competent evidence. State v. Spencer,
When even one factor relied upon by the sentencing court is substantial and compelling, the departure sentence should be upheld. Conversely, each individual factor, standing alone, need not be sufficient to justify tire departure if the reasons collectively constitute a substantial and compelling basis for departure. Blackmon,
As discussed below, because we do not agree with the panel’s legal conclusion rejecting acceptance of responsibility as a mitigating factor or its factual conclusion rejecting the low risk of danger to the public as a mitigating factor, we reverse the panel’s decision without considering its broader holding that mitigating factors related to сrimes other than the crime of conviction may not be considered substantial and compelling reasons to depart from the guidelines.
Acceptance of Responsibility
As noted, because the panel found the mitigating factor of acceptance of responsibility to be inconsistent with the principles underlying the KSGA, it did not consider whether the record suрported that factor. Bird,
Significantly, at oral argument before this court, the State agreed that acceptance of responsibility is consistent with the principles and purposes of the guidelines and cаn be an appropriate departure factor. But the State clarified that it contends the record does not support a finding of acceptance of responsibility in this case.
We agree with the district court and the parties here that acceptance of responsibility can be a mitigating factоr in support of a departure. As we have often noted, a sentencing court can con
Because a defendant’s acceptance of responsibility is consistent with the underlying principles of and legislative purposes behind enacting the KSGA, the district court properly considered it as a nonstatutory departure factor. See State v. Robison,
Next, we consider whether substantial competent evidence supports the district court’s decision to depart based on acceptance of responsibility. Substantial competent evidence is legal and relevant evidence a reasonable person could accept to support a conclusion. State v. Schultz,
Contrary to the State’s аrgument, the record includes evidence of acceptance of responsibility with respect to the controlling drug crime on which the district court departed. Specifically, the record shows that Bird pled guilty to the controlling crime of cocaine possession, saving the State and its witnesses significant trial preparation, time, and expense. Further, at the sentencing hearing,
Under the circumstances of this case, we conclude substantial competent evidence supports the district court’s conclusion that Bird accepted responsibility for his drug crimes.
Low Risk of Danger to the Community
The district court also relied upon “tire nature of harm and safety to the public in the future” and the issue of “non-injury” as mitigating factors in support of departure. The Court of Appeals panel rejected these factors, concluding they “appear[edj” to have been unrelated to the crime for which defendant ultimately received a departure, possession of cocaine. Bird,
Instead, the district court’s questioning and comments at the sentencing hearing reveal that in finding Bird to be a low risk of danger tо the community, the court relied on Bird’s personal circumstances, including family and church support, as well as the nonviolent nature of all of his past crimes, not just the theft crimes.
We have previously held that the protection of community safety is a factor that may serve as a substantial and compelling reason to deрart from a presumptive sentence. See State v. Murphy,
Further, consideration of whether Bird posed a danger to the public is consistent with the principles of the guidelines, including reservation of prison space for serious/violent offenders who present a threat to public safety, and protection of the public. See Favela,
Finally, we conclude that when considered together, Bird’s acceptance of responsibility and his lack of danger to the public provide substantial and compelling reasons to depart. Therefore, the district court did not abuse its discretion in departing.
The Court of Appeals’ decision vacating the district court’s departure is reversed, and the district court’s departure sentence is affirmed.