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NOT DESIGNATED FOR PUBLICATION

No. 122,801

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

SHAUN CALVERT,

Appellant.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed May 14, 

2021. Affirmed.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant. 

Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek 

Schmidt, attorney general, for appellee.

Before GARDNER, P.J., GREEN and BUSER, JJ.

PER CURIAM: Shaun Calvert appeals the trial court's denial of his dispositional 

departure motion, arguing that the specific facts of his case provided the trial court with 

substantial and compelling reasons to sentence him to probation instead of prison. Yet, 

because Calvert's underlying argument is unpersuasive, we affirm the denial of his 

departure motion. 
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FACTS

The State charged Calvert with possession of marijuana with intent to distribute, a 

severity level 2 nonperson felony in violation of K.S.A. 2017 Supp. 21-5705(a)(4). 

Eventually, Calvert entered into a plea agreement with the State. Under his plea 

agreement, Calvert agreed to plead guilty as charged in exchange for the State's promise 

to not press "any further charges" against him "arising out of [its] current investigation" 

as well as the State's promise to "stand silent" should Calvert later request a dispositional 

departure to probation. After pleading guilty to possessing marijuana with the intent to 

distribute in accordance with his plea agreement, however, Calvert failed to appear at his 

sentencing hearing. As a result, the trial court issued a bench warrant for Calvert's arrest. 

Ultimately, the police arrested Calvert on the bench warrant. Following his arrest 

but before his rescheduled sentencing, Calvert filed a departure motion with the trial 

court. In his departure motion, Calvert recognized that his minimum presumed sentence 

under the Kansas Sentencing Guidelines Act (KSGA) was 122 months' imprisonment 

based on his criminal history score of B. All the same, he argued that the specific facts of 

his case provided the trial court with substantial and compelling reasons to dispositionally 

depart from his presumptive prison sentence. Alternatively, he argued that the same 

substantial and compelling reasons entitled him to a durational departure to 65 months' 

imprisonment. 

But at his sentencing, the trial court rejected Calvert's request to impose a 

dispositional departure sentence. It instead found that Calvert had merely provided it with 

substantial and compelling reasons to durationally depart from his presumptive KSGA 

prison sentence. It then sentenced him to 65 months' imprisonment followed by 36 

months' postrelease supervision. 
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Calvert timely appealed the trial court's denial of his dispositional departure 

motion. 

ANALYSIS

Calvert's sole argument on appeal is that the trial court abused its discretion by 

denying his dispositional departure motion. In particular, Calvert argues that the trial 

court acted unreasonably by denying his dispositional departure motion because he had 

provided the trial court with the following substantial and compelling reasons entitling 

him to the departure: (1) his limited criminal history, (2) his prior successful completion 

of probation, (3) his limited role in his underlying crime, (4) his acceptance of 

responsibility for his underlying crime, (5) his ability to maintain employment, (6) his 

desire to pay his child support obligations, (7) his desire to foster a relationship with his 

minor children, (8) his willingness to complete substance abuse treatment for his drug 

addiction, (9) his ability to maintain sobriety while in jail awaiting his rescheduled 

sentencing hearing, and (10) his history of mental illness. As to his final point, like he did 

before the trial court, Calvert argues that his history of mental illness constituted a 

substantial and compelling reason entitling him a dispositional departure because it was 

his mental illness that resulted in him failing to appear at his original sentencing hearing.

The State counters and maintains that the trial court properly denied Calvert's 

dispositional departure motion. In short, the State contends that the trial court acted 

reasonably when denying his dispositional departure motion because in doing so, it 

"carefully considered [Calvert's] proffered substantial and compelling reasons for a 

departure sentence."

A defendant who receives a durational departure from his or her presumptive 

KSGA sentence may appeal the trial court's decision to deny his or her dispositional 

departure motion. See K.S.A. 2020 Supp. 21-6820(a); State v. Looney, 299 Kan. 903, 
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908, 327 P.3d 425 (2014). When considering such appeals, this court reviews the trial 

court's denial of the defendant's dispositional departure motion for an abuse of discretion. 

State v. Spencer, 291 Kan. 796, 807, 248 P.3d 256 (2011). An abuse of discretion occurs 

if the trial court's decision was based on an error of law, an error of fact, or an otherwise 

unreasonable decision. In cases like this one where the defendant argues that the trial 

court acted unreasonably, this court will not reverse the trial court's decision unless no 

reasonable person would have agreed with the trial court. State v. Powell, 308 Kan. 895, 

903, 425 P.3d 309 (2018).

At Calvert's sentencing, the trial court provided him with the following 

explanation why it was denying his dispositional departure motion but granting his 

durational departure motion: 

"Mr. Calvert, I have read your motion. I've handled your case since, looks like, 

back in 2018 in this matter. And while I have to take into consideration the 

codefendant's—I am considering that, but I also have to take into consideration your case. 

You have a long history of prior convictions. A lot of person crimes, whether they're 

misdemeanors, whether the aggravated battery, including one other—I believe another 

marijuana.

"I know your attorney's indicated that he believes that you suffer from 

[posttraumatic stress disorder], but that's contrary to what Dr. Reece says. He says 

there's no evidence of mental illness or severe emotional disorder. 

"Placing you on probation, you missing this court date sentencing was an 

indication to this Court that you are never going to comply with this—probation.

"For that reason, I'm going to deny your motion for a dispositional departure.

"However, I am going to grant a durational departure. I'm going to follow the 

State's recommendation and—I don't know that I heard your attorney or—I saw in his for 

65 months, but that may have been something that your attorney and Miss Oswald

[State's attorney] talked about. That's a pretty big break in this case, in my opinion, but 

I'm going to follow those requests, and I'm going to sentence you to the Department of 

Corrections for your conviction for 65 months.
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"I'm granting that because you have taken responsibility for your crimes. You 

did—while you didn't—I'm not sure I can say you saved the State a lot of resources here 

because they had to appear in court. You did save the State by having to go to trial, by 

putting on witnesses, and ultimately by withdrawing your motion [to withdraw] plea, to 

have to litigate that issue.

"I don't—for those reasons, I'm going to grant and sentence you to 65 months. I 

think that's a fair sentence. More than fair. That's five years, five months.

"You'll be given credit for the 173 days, so you've already served six months. 

You will be able to earn up to 15 percent good time.

. . . .

"As I said, I am denying the motion to—for a dispositional. That's based on your 

criminal history, based on your actions in this case, and based on this case. I don't 

believe that that's an appropriate disposition in this matter." (Emphases added.)

Thus, in denying Calvert's dispositional departure motion, the trial court first 

emphasized that it understood the arguments in Calvert's motion as well as the facts of 

Calvert's case. It then rejected Calvert's contention that he was entitled to a dispositional 

departure to probation based on his lengthy criminal history, his conduct while 

committing his underlying crime, and his conduct during the pendency of his case. On 

appeal, although Calvert complains that the trial court's rejection of his dispositional 

departure motion was unreasonable, under the facts of his case, the trial court's denial of 

his motion was entirely reasonable.

First, the trial court properly found that Calvert's lengthy criminal history 

established that he was not entitled to a dispositional departure to probation. In his brief, 

Calvert seemingly argues that his criminal history score of B was less severe than other 

defendants who have a criminal history score of B because his score hinged on the 

conversion of his three previous adult person misdemeanors convictions. But Calvert's 

argument ignores that our Legislature has determined that when calculating a defendant's 

criminal history score, every three of the defendant's prior adult class A or class B person 

misdemeanors convictions is equivalent to a single adult person felony. Indeed, this is 
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why our Legislature requires the trial court to convert every three of the defendant's 

previous adult class A or class B person misdemeanors convictions to a single adult 

person felony. See K.S.A. 2020 Supp. 21-6811(a). As a result, the trial court's conversion 

of three of Calvert's prior adult class A or B person misdemeanor convictions into a 

single adult person felony did not render Calvert's criminal history score of B somehow 

less severe than other defendants with the same criminal history score. 

Also, notwithstanding this problem with Calvert's criminal history argument, we 

note that Calvert, who was 33 years old when he committed his current crime of 

conviction, had 31 prior adult and juvenile convictions in his criminal history. With so 

many prior convictions, we agree with the trial court that Calvert's criminal history did 

not warrant a dispositional departure sentence. We therefore hold that the trial court acted 

reasonably by denying Calvert's dispositional departure motion based on his lengthy 

criminal history. 

Second and relatedly, as indicated by the trial court when denying Calvert's 

dispositional departure motion, Calvert's current crime of possessing marijuana with 

intent to distribute was particularly troubling given his previous conviction for selling 

marijuana. Simply put, it seems whatever punishment Calvert received for his prior 

conviction neither rehabilitated nor deterred Calvert from continuing to sell marijuana. 

Hence, we further hold that trial court acted reasonably by denying Calvert's dispositional 

departure motion based on Calvert's previous conviction for selling marijuana. 

Third and perhaps most importantly, the trial court properly found that Calvert's 

conduct during the pendency of his criminal case established that he was not entitled to a 

dispositional departure to probation. Although Calvert continues to allege that his mental 

illness caused him to not attend his original sentencing hearing, the trial court made a 

credibility determination against Calvert on this issue because Dr. Reece found that he 

suffered from no mental illness. Calvert does not dispute this credibility determination 
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against him. And in any case, this court does not reassess a trial court's credibility 

determinations when applying the abuse of discretion standard of review. See State v.

Newman, 311 Kan. 155, 159, 457 P.3d 923 (2020). 

So Calvert has provided no credible explanation why he failed to attend his 

original sentencing hearing. Yet, because Calvert has provided no credible explanation 

about his failure to attend his original sentencing hearing, it follows that no such credible 

explanation existed. In turn, Calvert's failure to attend his original sentencing strongly 

indicated that Calvert would be unable to comply with the more arduous burdens of 

probation. We thus hold that the trial court's denial of Calvert's dispositional departure 

motion was reasonable given Calvert's failure to appear at his original sentencing hearing. 

Finally, although Calvert asserts that several other things constituted substantial 

and compelling reasons requiring the trial court to grant his dispositional departure 

motion, we disagree. When deciding whether to grant a dispositional departure motion, 

the trial court must make more than "mere conclusory findings" to support its ruling. 

State v. Sewell, 25 Kan. App. 2d 731, Syl. ¶ 2, 971 P.2d 1201 (1998). It necessarily 

follows that a defendant moving for a departure must provide more than mere conclusory 

reasons to support his or her departure motion. Here, Calvert's remaining reasons why the 

trial court should have granted his dispositional departure motion are conclusory. Thus, 

Calvert's allegations fail to show why the trial court or judge should accept them as true.

As a result, we agree with the trial court that those reasons were not so substantial 

and compelling as to entitle Calvert to a dispositional departure when viewed in light of 

his lengthy criminal history, his conduct while committing his underlying crime, and his 

conduct during the pendency of his criminal case. And we also agree with the State's 

contention that the trial court's ultimate decision to grant Calvert's alternative request for 

a durational departure to 65 months' imprisonment establishes that the trial court 

"carefully considered [Calvert's] proffered substantial and compelling reasons for a 
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departure sentence." Indeed, by imposing the 65-month durational departure sentence 

when Calvert's minimum presumptive sentence under the KSGA was 122 months' 

imprisonment, the trial court undoubtedly credited Calvert for the few substantial and 

compelling reasons he had listed in his departure motion. 

Thus, under the facts of this case, we do not hesitate to hold that the trial court 

acted reasonably by denying Calvert's dispositional departure motion. As a result, we 

affirm the denial of this motion and Calvert's 65-month prison sentence.

Affirmed.