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NOT DESIGNATED FOR PUBLICATION

No. 124,593

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellant,

v.

ANDREW SHAWN TAYLOR,

Appellee.

MEMORANDUM OPINION

Appeal from Barton District Court; CAREY L. HIPP, judge. Opinion filed November 23, 2022. 

Affirmed.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for 

appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.

Before WARNER, P.J., GREEN and HILL, JJ.

PER CURIAM: The district court imposed a dispositional departure sentence that

placed Andrew Shawn Taylor on probation and suspended his presumptive prison 

sentence. The State appeals this sentencing departure, arguing that the reasons for the 

departure sentence that were mentioned by the court were not substantial and not 

compelling. The State asks us to vacate the departure and remand for resentencing. We 

will not substitute our judgment for the judgment of the district court on this point and 

affirm Taylor's departure sentence. 
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This is a drug crime.

Taylor pleaded guilty to distribution of methamphetamine within 1,000 feet of 

school property. The charges stemmed from a controlled drug sale to a confidential 

informant in October 2020.

Before sentencing, Taylor moved for probation. He asserted four substantial and 

compelling reasons existed to grant his departure motion. First, he took responsibility for 

his crime and saved all involved time and money by pleading no contest rather than go to 

trial. Second, he was only 33 years old and amenable to rehabilitation and addiction 

treatment. Third, sentencing him to his presumptive sentence would serve no purpose 

other than to punish him, which is not the ultimate goal of our sentencing guidelines or

the statute allowing discretionary departures. Finally, except for a 2007 conviction for no 

drug tax stamp, his criminal history is all misdemeanors and mainly traffic violations. He 

argued because this was his first serious conviction, he did not previously have a chance 

to try addiction treatment.

The State opposed Taylor's motion and argued the factors he gave were not 

substantial and compelling reasons to depart. The district court sentenced Taylor to 123 

months in the Kansas Department of Corrections but suspended the sentence and placed 

him on probation for 36 months. 

The district court explained that several concepts affected its decision to depart: 

"I do believe that there are substantial and compelling reasons for the departure, and 

those are fairly specific in the motion. But I do think, yes, there may be a difference 

between a determination—a plea of guilty and no contest. The end result was that it 

saved, you know, the State and the prosecution from having to move forward with a trial 

on this. So it is some type of acceptance to me. 
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"I also think his age is of importance here, at 33. I think there is still, you know, 

obviously time left. What I do see is an acceleration of activity, Mr. Taylor, you know. 

And your attorney is right. When you look at your criminal history, with the exception of 

the tax stamp, everything is traffic related essentially. But it looks like obviously we're 

escalating, and that is concerning for me. 

"But the fact that he has not received any type of treatment, at least that I'm 

aware of, and I think this is the type of offense that—and due to his age, quite frankly, 

and criminal-history situation, he's somebody that, my opinion, should be given the 

opportunity to be successful at probation. So that is what I'm going to do." 

The State timely appeals Taylor's dispositional departure sentence. On appeal, the 

State argues that the district court erred by finding that the nonstatutory factors Taylor 

provided were substantial and compelling reasons to depart. 

Certain sentencing fundamental points of law apply here.

The sentencing scheme that applies in Kansas creates presumptions about criminal 

sentences that are affected by the seriousness of the crime and the criminal history of the 

accused. Some crimes call for presumptive incarceration while others call for 

presumptive probation. A district court shall impose the presumptive sentence established 

by the sentencing guidelines unless the court finds substantial and compelling reasons to 

impose a departure sentence. K.S.A. 2021 Supp. 21-6815(a). 

K.S.A. 2021 Supp. 21-6815(c)(1) lists mitigating factors a sentencing court may 

consider in determining whether substantial and compelling reasons for a departure exist. 

That list is nonexclusive and appellate courts review nonstatutory factors for abuse of 

discretion. State v. Morley, 312 Kan. 702, 711, 479 P.3d 928 (2021). 

When a sentencing court grants a departure based on nonstatutory factors, we first 

determine whether that factor can be a mitigating factor as a matter of law under K.S.A. 
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2021 Supp. 21-6815(c)(1). Because this first step involves a legal question, review is 

unlimited. As a second step we decide whether the nonstatutory factor's existence is 

supported by substantial competent evidence. Finally, we decide whether the sentencing 

court acted reasonably when it found there was a substantial and compelling reason to 

depart. See State v. Montgomery, 314 Kan. 33, 36, 494 P.3d 147 (2021). 

In other words, we look to see if: 

(1) the determination of a nonstatutory factor was guided by an erroneous legal 

conclusion; 

(2) whether substantial competent evidence supported the factual finding that the 

factor existed: an error of fact; and 

(3) whether a reasonable person would have taken the view adopted by the 

sentencing court. 

Morley, 312 Kan. at 711. 

We examine the district court's reasons.

The district court relied on three factors when granting the departure motion: (1) 

Taylor's acceptance of responsibility; (2) Taylor's age and amenability to rehabilitation; 

and (3) Taylor's lack of serious criminal history. We hold that two of the three factors are 

valid.

An offender's acceptance of responsibility can, as a matter of law, be a mitigating 

factor supporting a sentencing departure in any case. Morley, 312 Kan. at 711-12. Also, 

age can be a mitigating factor supporting a sentencing departure as a matter of law. State 

v. Favela, 259 Kan. 215, 234-35, 911 P.2d 792 (1996).

Taylor's lack of criminal history, standing alone, is not a legally valid reason to 

depart. See Montgomery, 314 Kan. 33, Syl. ¶ 3; State v. Bliss, 61 Kan. App. 2d 76, 113, 
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498 P.3d 1220 (2021), rev. denied 314 Kan. 856 (2022). Our sentencing guidelines reflect 

that the more crimes an offender commits results in longer sentences. Thus, it was 

improper for the district court here to consider Taylor's criminal history as an 

independent substantial and compelling reason to depart. We need not consider this 

question further. The other reasons the district court found adequately support its 

decision.

Are these factors proved by substantial competent evidence?

The first factor the court considered was Taylor's acceptance of responsibility. 

Taylor pleaded no contest to one of his crimes based on an agreement with the State. He 

saved all involved from spending time and resources on conducting a preliminary hearing 

and trial. Although he only pleaded no contest and the State made concessions, "[a] 

person does not always have to admit full wrongdoing or concede every material fact the 

State alleges to be credited with taking responsibility." Morley, 312 Kan. at 712. There is 

substantial competent evidence that Taylor took responsibility for his crime and the State 

does not argue otherwise. 

The other factor the court considered was Taylor's age. Taylor was 33 at the time 

of sentencing. There is no dispute about Taylor's age, and the parties had that information 

available at the time of sentencing. Taylor's age was supported by substantial competent 

evidence. 

Did the court err when it ruled those two reasons—acceptance of responsibility and age 

of the offender—were substantial and compelling enough to depart from the guidelines? 

To answer this question we must understand the terms "substantial" and 

"compelling" and examine the arguments from both Taylor and the State.
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Obviously, "substantial" is an adjective that varies with circumstances and context. 

After all, a substantial meal to a ballerina may differ a great deal from a substantial meal 

for a lumberjack. But Kansas caselaw has held that "substantial" means something real, 

not imagined, and of substance, not ephemeral. Likewise, the adjective "compelling" is 

descriptive but imprecise. Our courts have held that "compelling" means that the court is 

forced, by the facts of the case, to leave the status quo and go beyond the ordinary. State 

v. Reed, 302 Kan. 227, 250, 352 P.3d 530 (2015).

Taylor's acceptance of responsibility 

The State argues the district court did not act reasonably when it found Taylor's 

acceptance of responsibility was a substantial and compelling reason to depart. When 

dealing with similar circumstances, the Morley court explained that the proper inquiry is 

"whether a reasonable person would find [the defendant's] specific actions that 

generically constitute acceptance of responsibility to be compelling enough under these 

circumstances to force a court to abandon the status quo and reject the presumptive 

sentence[.]" Morley, 312 Kan. at 714. 

The State argues that Taylor's acceptance of responsibility does not rise to the 

level of forcing the court. This would lead to a departure factor in every case in which a 

guilty or no contest plea is entered. The State also notes that the case against Taylor was 

not complicated and only required a few witnesses. 

In Morley, the court found that the defendant's acceptance of responsibility was 

not a substantial and compelling reason to depart because the defendant pleaded no 

contest to 2 charges in exchange for the State dismissing 10 others, minimized his 

involvement in the crimes, and was reluctant to pay restitution for his victims' entire loss. 

312 Kan. at 714. 
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Here, in response, Taylor argues that his case differs from Morley in three ways: 

(1) Taylor never minimized his involvement in the crimes; 

(2) even though the State dismissed a charge in exchange for Taylor's plea, the 

charge was insignificant and its dismissal did not undermine Taylor's 

acceptance of criminal responsibility; and 

(3) the district court relied on several mitigating factors in Taylor's case—not just 

the acceptance of responsibility. 

In our view, Taylor's acceptance of responsibility alone may not be enough for the 

district court to have departed. But the district court relied on several factors in reaching 

its decision and individual factors need not be substantial and compelling by themselves 

as long as the collective circumstances provide substantial and compelling reasons to 

depart. State v. Jolly, 301 Kan. 313, 331, 342 P.3d 935 (2015). 

Taylor's age and amenability to rehabilitation

At sentencing the district court considered Taylor's age—33—a reason to depart 

because "there [was] still . . . time left" and he should have a chance to succeed on 

probation. 

The State argues that Taylor's age was not a substantial and compelling reason to 

depart. And with his age and experience with the criminal justice system, he should have 

learned his lesson. The State notes that the district court did not explain how Taylor's age 

factored into its decision. 

The State cites State v. Cato-Perry, 50 Kan. App. 2d 623, 332 P.3d 191 (2014). In 

Cato-Perry, a panel of this court held that, standing alone, the defendant's young age of 

17 was not a substantial and compelling reason to depart. The sentencing court did not 

articulate in what context it considered the defendant's age. 50 Kan. App. 2d at 630-31. 
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But the Cato-Perry panel ultimately found that the defendant's age, combined with 

the fact that he served prison time since committing his crime and was amenable to 

rehabilitation, were substantial and compelling reasons to depart when considered 

collectively. 50 Kan. App. 2d at 633. 

The Cato-Perry panel took the district court's consideration of the defendant's 

prison time to mean it recognized the defendant was just as likely to be rehabilitated with 

the time already served than by imposing a new lengthy prison term. 50 Kan. App. 2d at 

631-32. Taylor argues that the same rationale applies to his case because the district court 

considered his age since he had not yet had an opportunity for drug treatment and 

rehabilitation. 

As for deserving the opportunity for treatment, the State argues that the district 

court made an error of fact because Taylor has had the opportunity for treatment in the 

past. One of Taylor's prior convictions listed in his PSI report was for possession of 

marijuana. It is listed as a misdemeanor because the crime was amended to be a 

misdemeanor in 2016. See State v. Keel, 302 Kan. 560, Syl. ¶ 9, 357 P.3d 251 (2015). 

But when Taylor was convicted in 2009, it was for a felony. As a condition of his 

probation, Taylor was ordered to complete mandatory drug treatment under Senate Bill 

123. 

There is nothing in the record showing whether Taylor underwent the drug 

treatment ordered in his prior case. The State points to defense counsel's statement at 

sentencing that Taylor successfully completed his prior probation in Sedgwick County. 

But defense counsel was clearly not fully aware of the situation if she did not know 

Taylor was previously convicted of a drug felony and had the opportunity for treatment. 
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Nonetheless, the State argues that even if Taylor were never ordered to enter drug 

treatment, he could have sought it on his own initiative. In response, Taylor notes that he 

is indigent and could not afford drug treatment. 

None of the State's arguments persuade us to reverse the holding of the sentencing 

court. The reasoning of the sentencing court led it to conclude that those reasons were

substantial and compelling. To reverse under these circumstances, we would be 

substituting our judgment for that of the sentencing court. 

Although standing alone, the factors the district court considered may not be 

substantial and compelling, reasonable people could agree with the district court that the 

combined circumstances are substantial and compelling reasons to depart. Taylor 

prevented the State from spending time and money on his prosecution, and he was only 

33 years old at the time of sentencing and was facing a long prison sentence. A 

reasonable person could agree with the court that Taylor deserved an opportunity at 

probation to get drug treatment. 

Taylor's departure sentence is affirmed.