STATE OF KANSAS, Aрpellee, v. BOSTON COLE BOSWELL, Appellant.
No. 123,111
IN THE SUPREME COURT OF THE STATE OF KANSAS
December 10, 2021
- A district court‘s ruling on a motion to depart from a presumptive sentence is reviewed for an abuse of discretion.
- Under
K.S.A. 2017 Supp. 22-3504(3) , an illegal sentence is one that (1) is imposed by a court that lacks jurisdiction; (2) does not conform to the applicable statutory provision, either in the character or the term of authorized punishment; or (3) is ambiguous about the time and way it is to be served. Whether a sentence meets one of those сriteria is a question of law, so appellate review is unlimited. - A district court‘s mischaracterization of evidence that is not material to its factual findings or legal conclusions regarding a departure motion does not establish an abuse of discretion.
- A sentencing court lacks authority to impose a term of postrelease supervision together with an off-grid indeterminate life sentence.
- A sentencing court lacks authority to impose lifetime electronic monitoring as a condition of parole for a first-degree murder conviction.
Appeal from Ford District Court; LAURA H. LEWIS, judge. Opinion filed December 10, 2021. Affirmed in part and vacated in part.
Kasper Schirer, of Kansas Appellate Defender Office, was on the briefs for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
WALL, J.: After pleading no contest to premeditated first-degree murder, Boston Cole Boswell faced a presumptive sentence of life imprisonment with no chance of parole for 50 years, commonly called a hard 50 sentence. He asked the district court to depart from that sentence and instead allow him a chance at parole after 25 years. The district court denied that request, and Boswell now appeals that decision. Additionally, Boswell contends that the district cоurt‘s order imposing lifetime postrelease supervision and electronic monitoring as a condition of parole each render his sentence illegal.
Boswell has failed to establish that the district court‘s ruling on the departure motion was founded on an error of fact or law or
FACTS AND PROCEDURAL BACKGROUND
The facts are not in dispute. Boswell stayed the night at a Dodge City motel with S.R.W., the victim, in March 2018. After S.R.W. fell asleep, Boswell took S.R.W.‘s gun from her purse and shot her in the head. He would later tell officers that he had first cоntemplated suicide but then shot S.R.W. after voices in his head told him to do so. He walked home after the shooting and went to sleep. Boswell went to work at a feedlot the next morning and told a coworker what had happened. The police were contacted, and Boswell confessed to shooting S.R.W.
The State charged Boswell with one count of premeditated first-degree murder and one count of theft of a firearm. The district court granted Boswеll‘s request for a mental examination to determine whether he could pursue a mental-disease-or-defect defense at trial. That defense requires a defendant to show that, as a result of mental disease or defect, he or she lacked the culpable mental state required as an element of the crime charged. See
The clinical staff at Larned State Hospital (Larned) found that Boswell was “clearly able to form intent, implement decisions, and engage in goal-directed behaviors during the time of the alleged offense,” so “[h]e possessed the mental state as required as an element of the offenses charged.” The staff also found that Boswell was “feigning symptoms of psychosis.” Even so, the staff did diagnose Boswell with antisocial personality disorder based on a “continued pattern of unlawful behavior, failure to conform to social norms, impulsivity, reckless disregard for the safety of others, lack of remorse, and irresponsibility.” The staff also noted that he exhibited features of borderline personality disorder, including “affective instability, inappropriate, intense anger, recurrent suicidal behavior, and markedly unstable self-image.”
Boswell and the State entered into a plea agreement before trial. Boswell agreed to plead no contest to first-degree murder. Boswell later claimed that he entered that plea so S.R.W.‘s family could avoid further emotional turmoil at trial. In exchange for Boswell‘s plea, the State agreed to dismiss the firearm-theft charge and two other pending cases unrelated to this appeal. The State also agreed to remain silent at sentencing. The court accepted Boswell‘s no contest plea and set the case for sеntencing.
Boswell moved to depart from his presumptive hard 50 sentence for premeditated first-degree murder. See
The district court took up Boswell‘s motion at sentencing. Boswell argued that there were substantial and compelling reasons for a departure based on
The district court addressed each mitigating circumstance before ruling on the motion. It found that Boswell‘s age was “concerning” but concluded this factor alone did not establish a substantial and compelling basis for departure:
“And, the fact that you were 18 years old when you committed this crime, that is—that is hard for the Court. That‘s—that‘s a factor that is, when you look at it in the spectrum of what thе possible sentence is, that is—that is concerning.
“However, it‘s my job to weigh all of these factors together. And, while the factor that you are now 20-years old is a factor that I must consider. In and of itself, I do not find that to be a substantial and compelling factor to mitigate the sentence.”
The district court also acknowledged Boswell‘s lack of criminal history but again concluded that this fact alone was not a substantial and compelling basis for departure givеn the significance of the crime:
“Additionally, the fact that you have no prior criminal history. Again, in and of itself, you went from zero criminal history to committing a murder in the first degree. And, so, again, I do not find that that is a substantial or compelling factor in and of itself.”
Finally, the district court addressed Boswell‘s claim that he committed the crime while under the influence of extreme mental or emotional disturbances. It acknowledged that Boswell had mental-health issues but concluded thаt they did not provide a substantial and compelling reason to depart:
“Your mental health history, the Court is aware of. We‘ve gone through several stages here in regards to that—that mental health. You were found to be competent. You were found to know the meaning of right and wrong. And, as you sit here today and told the Court, you are aware that your actions were wrong.
“And, it‘s my duty to make sure that the law is followed, and that the consequences for the actions that you decided to take are based on that law.
“And, so, again, while I think that—that your mental health situation, I agree that there were some issues. I do not find that those issues rise to the level to find that that is a substantial and compelling factor to enter a departure based on those.”
The district court concluded that these mitigating circumstances did not rise to a substantial and compelling reason for departure individually or in the aggregate, i.e., cumulatively, and dеnied Boswell‘s motion. The district court imposed a hard 50 life sentence and ordered that Boswell be subject to lifetime postrelease supervision should he ever be paroled. Also, the journal entry of judgment subjected Boswell to lifetime electronic monitoring as a condition of parole, even though that condition was not addressed or pronounced from the bench at sentencing.
Boswell appealed directly to our court. Jurisdiction is рroper under
ANALYSIS
Boswell raises two issues on appeal. First, he contends that the district court abused its discretion by denying his motion to depart to a hard 25 sentence. Second, he argues that the district court committed legal error by imposing lifetime postrelease supervision and electronic monitoring as a pаrole condition, rendering those components of his sentence illegal. We conclude that the district court‘s decision to deny Boswell‘s departure motion was not founded on factual or legal error or objectively unreasonable, so we affirm his hard 50 sentence. However, the district court lacked authority to impose lifetime postrelease or electronic monitoring parole conditions, so we vacate that portion of the sentence.
As noted, the district court can depart from a hard 50 sentence in a premeditated first-degree murder case only if it finds “substantial and compelling reasons” to do so.
We review a district court‘s ruling on a departure motion for an abuse of discretion. State v. McLinn, 307 Kan. 307, 347-48, 409 P.3d 1 (2018). A district court abuses its discretion if its decision is arbitrary or unreasonable, based on a legal error, or based on a factual error. 307 Kan. at 332. Boswell, as the party asserting error, has the burden of establishing an abuse of discretion. See State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).
We apply a different standard of review to a motion to correct an illegal sentence, Boswell‘s second issue on appeal. Under
II. The District Court Did Not Abuse Its Discretion by Denying the Departure Motion
Boswell argues primarily that the district court abused its discretion by committing a factual error in denying his departure motion. He also attempts to recast this alleged factual error into a claim of legal error and challenges the reasonableness of the district court‘s conclusion that the mitigating circumstances did not constitute substantial and compelling reasons to depart from the presumptive hard 50 sentence. We address each argument in turn.
However, before reaching the merits, we must first address the State‘s argument that Boswell failed to presеrve this issue for appeal. The State points out that “there was no objection or attempt to clarify the district court‘s factual finding below,” and it argues that “[b]ecause such actions could have entirely avoided this issue of purported error, this issue should not be addressed for the first time on appeal.” We disagree with the State.
Boswell adequately preserved the issue by moving for a departure sentence based, in part, on his mental health under
While we conclude that Boswell adequately preserved his challenge for appeal, we disagree with him on the merits. Boswell
Boswell had argued that he committed the crime while under the influence of extreme mental or emotional disturbances, a mitigating factor under
“Your mental health history, the Court is aware of. We‘ve gone through several stages here in regards to that—that mental health. You were found to be competent. You were found to know the meaning of right and wrong. And, as you sit here today and told the Court, you are aware that your actions were wrong.
“And, it‘s my duty to make sure that the law is followed, and that the consequences for the actions that you decided to take are based on that law.
“And, so, again, while I think that—that your mental health situation, I agree that there were some issues. I do not find that those issues rise to the level to find that that is a substantial and compelling factor to enter a departure based on those.” (Emphasis added.)
Boswell insists the district court‘s statement constitutes factual error because the clinical staff at Larned did not find that he knew right from wrong. In fact, such an inquiry was beyond the scope of their evaluation, which was limited to determining whether Boswell lacked the mental state required to commit first-degree murder as a result of mental disease or defect.
We hold that the district court did not commit an error of fact. First, the district court‘s remark that Boswell was “found to know the meaning of right and wrong” merely recounted the evolution of the mentаl-health issue over the course of the proceedings. The district court judge was simply explaining, albeit unartfully, that Boswell had previously raised questions about his mental health in an unsuccessful attempt to pursue a mental-disease-or-defect-defense, prior to entering his plea agreement. The district court‘s statement was not a separate finding of fact material to Boswell‘s claim that his mental health issues established the existence of a mitigating сircumstance warranting departure under
And the district court findings material to
Finally, even if the district court‘s statement (that Boswell was “found to know the meaning of right and wrong“) could be construed as a finding of fact material to its legal conclusion, that purported finding is supported by the record. Boswell repeatedly admitted at sentencing that he was aware that his conduct was morally wrong. His behavior after the shooting further corroborated this testimony: Boswell fled the scene, confessed to a coworker in the face of mounting guilt, turned himself in to law enforcement, and pleaded no contest to avoid further emotional turmoil for S.R.W.‘s family. These facts and circumstances provided substantial competent evidence to support a finding that Boswell appreciated the moral character of his conduct.
Finally, Boswell contends the district court‘s ruling on the motion was unreasonable or arbitrary. To prevail on such a claim, Boswell must show that “‘no reasonable person would have taken the view adopted by the trial court.‘” 307 Kan. at 332. Boswell has failed to make that showing.
Although Boswell offered evidence in support of three statutory mitigating factors, “the existence of a factor that is arguably mitigating does not necessarily mean that such a faсtor is ‘substantial and compelling.‘” State v. Blevins, 313 Kan. 413, 440, 485 P.3d 1175 (2021). Boswell shot and killed a young woman for no apparent reason, and despite mental-health issues, he was found to be capable of forming the intent necessary to commit premeditated first-degree murder. In light of these circumstances, we cannot conclude that no reasonable person would have agreed with the district court‘s decision to deny Boswell‘s departure motion. See Blevins, 313 Kan. at 440 (district court did not abuse discretion in finding that mitigating factors, including young age of defendant at the time of the murder and limited criminal history, did not warrant departure); McLinn, 307 Kan. at 348-49 (affirming denial of motion to depart from hard 50 sentence even though defendant presented evidence that she had no significant history of prior criminal behavior, she was under the influence of extreme mental or emotional disturbances, and she was relatively young at the time of the offense); State v. Murillo, 269 Kan. 281, 289-90, 7 P.3d 264 (2000) (affirming denial of motion to depart from hard 40 sentence even though defendant argued he was under extreme mental or emotional disturbance due to crack cocaine use and lacked capacity to appreciate the criminality of his conduct).
Because Boswell has failed to establish that the district court abused its discretion by committing a factual or legal error or by making an objectively unreasonable decision, we affirm his hard 50 sentence.
III. The District Court Imposed аn Illegal Sentence by Ordering Lifetime Postrelease Supervision and Lifetime Electronic Monitoring as a Condition of Parole
Boswell has raised his illegal-sentence motion for the first time on appeal. Typically, a defendant must raise an issue before the trial court to preserve an issue for appellate review. State v. O‘Neal, 250 Kan. 229, 233, 824 P.2d 967 (1992) (Generally, “litigants must preserve an issue before the trial court in order to raise that issue on appeal.“). However,
In its briefing, the State concedes that both conditions rendered Boswell‘s sentence illegal. We agree. “‘[A] sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid indeterminate life sentence.‘” State v. Fraire, 312 Kan. 786, 797, 481 P.3d 129 (2021). Similarly, a sentencing court also lacks “authority to impose parole
An illegal sentence may be corrected without a new sentencing hearing when our mandate and opinion will be “determinative of the action.” State v. Phillips, 309 Kan. 475, 478, 437 P.3d 961 (2019) (quoting
Affirmed in part and vacated in part.