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NOT DESIGNATED FOR PUBLICATION

No. 121,730

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

BLAKE LEE MOSS,

Appellant.

MEMORANDUM OPINION

Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed October 30,

2020. Affirmed.

Jacob Nowak, of Kansas Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek 

Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., MALONE, J., and WALKER, S.J.

PER CURIAM: Blake Lee Moss pled guilty to a number of felonies and 

misdemeanors. Prior to sentencing, the State moved the court for an upward dispositional 

departure for Moss' sentence. The State argued that although Moss' sentence was 

presumptive probation, Moss had demonstrated that he was not amenable to probation 

through his actions before his current arrest. The district court agreed and granted the 

State's motion.
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On appeal, Moss argues that the district court violated his constitutional rights by 

relying on facts not found by a jury to enhance his sentence. Alternatively, he argues 

there were not substantial and compelling factors warranting an upward dispositional 

departure. Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

In May 2019, Moss pled guilty to fleeing or attempting to elude police, possession 

of marijuana, possession of drug paraphernalia, transporting an open container, driving 

under the influence, interference with law enforcement, leaving the scene of an accident, 

driving while suspended, and cruelty to animals. A presentence investigation report 

indicated that Moss and a criminal history score of F, meaning that his felony convictions 

were presumptive probation.

The State moved for an upward durational and dispositional departure, arguing 

that Moss was not amenable to probation and presented a risk of future danger to society. 

The State filed a second motion for upward dispositional departure which focused on the 

State's argument that Moss was not amenable to probation. According to the State, Moss 

had a history of violating bond conditions by breaking the law, failing to comply with 

probation conditions, and a general failure to comply with the requirements courts placed 

on him. This culminated with his current conviction, where the district court allowed 

Moss to return to residential treatment while awaiting trial. However, Moss absconded 

from residential treatment after testing positive for alcohol.

At sentencing, Moss argued that any fact supporting an upward departure would 

have to be found to exist by a jury. After hearing arguments from the parties, the district 

court granted the State's motion "[b]ased upon the defendant's prior interaction with the 

Court in this case and in his other cases." Based on that, the court found that there were 

substantial and compelling reasons to depart and not grant Moss probation. The court 
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ordered Moss to serve a 9-month sentence in prison, consecutive to a 24-month sentence 

in jail.

Moss timely appeals. Additional facts are added below as necessary.

ANALYSIS

Moss raises two arguments on appeal. First, he argues that his constitutional rights 

were violated when the court granted the State's motion for an upward dispositional

departure by relying on facts that were not found by a jury. Second, Moss argues that if 

the court disagrees with his first argument, that there were not substantial and compelling 

reasons to support the upward dispositional departure.

The district court did not violate Moss' constitutional rights by granting the State's 

motion for an upward dispositional departure. 

In essence, Moss argues that the court violated his jury trial rights by relying on a 

fact, other than the fact of a prior conviction, that increased his sentence from probation 

to imprisonment, in violation of the rules set out by the Supreme Court of the United 

States in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 

(2000). However, as Moss acknowledges, the Kansas Supreme Court has held that 

Apprendi does not apply to upward dispositional departures in State v. Carr, 274 Kan. 

442, 452, 53 P.3d 843 (2002).

In Carr, the Kansas Supreme Court concluded that "Apprendi applies only to 

upward durational departures of a sentence imposed." 274 Kan. at 452. As the court noted 

"[t]he distinction between probation and the imposition of a prison sentence renders the 

United States Supreme Court's Apprendi decision inapplicable to a sentencing judge's 
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decision to impose a dispositional departure prison sentence rather than to grant 

probation." 274 Kan. at 452.

Moss argues that the Kansas Supreme Court's decision in Carr was flawed and 

that the rule in Apprendi applies to upward dispositional departures. And as the State 

points out, the Kansas Supreme Court recently cited approvingly to its holding in Carr. 

See State v. Hambright, 310 Kan. 408, 419-20, 447 P.3d 972 (2019). However, this court 

is duty bound to follow Kansas Supreme Court precedent unless there is some indication 

that the Kansas Supreme Court is departing from its previous position. State v. Rodriguez, 

305 Kan. 1139, 1144, 390 P.3d 903 (2017).

The Kansas Supreme Court has given no indication that it intends to depart from 

its previous holding in Carr. This court recognized that as recently as September 2020, in 

State v. Parker, No. 121,966, 2020 WL 5740885, at *2 (Kan. App. 2020) (unpublished 

opinion), petition for rev. filed October 20, 2020. See State v. Baker, No. 121,727, 2020 

WL 4913283, at *3 (Kan. App. 2020) (unpublished opinion), petition for rev. filed

September 15, 2020; State v. Vannostrand, No. 120,941, 2020 WL 1969332, at *3 (Kan. 

App. 2020) (unpublished opinion) (noting, in dicta, the holding in Carr), rev. denied __ 

Kan. __ (September 25, 2020).

Based on the Kansas Supreme Court's holding in Carr, the district court did not 

violate Moss' constitutional rights by granting the State's motion for an upward 

dispositional departure.

The district court did not err by finding substantial and compelling reasons to upwardly 

depart.

For his second issue on appeal, Moss argues that there were not substantial and 

compelling reasons warranting an upward dispositional departure.
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Our standard of review is abuse of discretion. 

When the record supports the district court's stated reasons for the departure, we 

apply an abuse of discretion standard to determine whether a particular factor constituted 

a substantial and compelling reason to depart. State v. Bird, 298 Kan. 393, 397-98, 312 

P.3d 1265 (2013); State v. Morley, 57 Kan. App. 2d 155, 161, 448 P.3d 1066 (2019), rev. 

granted ___ Kan. ___ (August 27, 2020). A judicial action constitutes an abuse of 

discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; 

or (3) it is based on an error of fact. State v. Woodring, 309 Kan. 379, 380, 435 P.3d 54 

(2019). The party asserting an abuse of discretion—in this case Parker—bears the burden 

of demonstrating such an abuse of discretion exists. State v. Thomas, 307 Kan. 733, 739, 

415 P.3d 430 (2018).

A sentencing departure must be supported by substantial and compelling reasons 

justifying a deviation from the presumptive sentence under the revised Kansas 

Sentencing Guidelines Act, K.S.A. 2017 Supp. 21-6801 et seq. See K.S.A. 2017 Supp.

21-6815(a). "'Substantial'" means something real, not imagined; something with 

substance, not ephemeral. State v. Reed, 302 Kan. 227, 250, 352 P.3d 530 

(2015)."'Compelling'" means that the court is forced, by the facts of the case, to leave the 

status quo or go what is beyond ordinary. 302 Kan. at 250.

Substantial competent evidence refers to legal and relevant evidence that a 

reasonable person could accept as being adequate to support a conclusion. State v. Doelz, 

309 Kan. 133, 138, 432 P.3d 669 (2019).

There was substantial competent evidence to support the district court's decision.

Kansas courts recognize that a lack of amenability to probation can be a 

substantial and compelling factor justifying an upward dispositional departure. State v. 
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Rodriguez, 269 Kan. 633, 647, 8 P.3d 712 (2000). Moreover, evidence of a lack of 

amenability to probation can be gleaned from "a defendant's demonstrated attitude when 

given prior opportunities at probation or other forms of supervised release." 269 Kan. at 

647.

Here, there was substantial competent evidence to support the district court's 

determination that substantial and compelling reasons to grant the State's motion for an 

upward dispositional departure existed. While awaiting sentencing in an earlier case, 

Moss violated his bond conditions at least four times, including driving while under the 

influence. While in residential treatment on his earlier cases, Moss tested positive for 

alcohol and, while revocation for his positive alcohol test was pending, used marijuana. 

After his return to residential treatment, Moss tested positive for methamphetamine and 

failed to follow the treatment center's rules. Then, while on bond in this case, Moss again 

tested positive for alcohol and absconded from treatment.

There was substantial competent evidence to support the district court's conclusion 

that Moss "can't handle probation." Given Moss' history while on bond or probation, the 

district court did not abuse its discretion by granting the State's motion for an upward 

dispositional departure.

Affirmed.