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NOT DESIGNATED FOR PUBLICATION

No. 122,986

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

ELGIN B. BROWN,

Appellant.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; JENNIFER L. MYERS, judge. Opinion filed June 25, 2021. 

Affirmed.

Jacob Nowak, 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 POWELL, P.J., BRUNS, J., and STEVE LEBEN, Court of Appeals Judge Retired, 

assigned.

PER CURIAM: Elgin B. Brown pled guilty to several charges arising out of an 

incident in which he stole a police cruiser and led the police on a dangerous, high-speed 

chase. Due to Brown's criminal history score of B and the fact he committed his crimes 

while on parole, his convictions presumptively required prison. The district court granted 

Brown's request for a downward durational departure which resulted in a shorter prison 

sentence but denied his request for a dispositional departure to probation. Brown now 

appeals, arguing the district court abused its discretion by denying him probation because 
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it considered facts not in evidence due to its reference to Brown's records from the 

Kansas Department of Corrections (KDOC). We disagree because a sentencing court is 

permitted to consider a broad range of information at sentencing and because the district 

court denied Brown probation due to the danger Brown's actions posed to the public. 

Thus, we affirm Brown's sentences.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2018, police stopped a vehicle operated by Brown, and, after discovering 

four warrants for Brown's arrest, a police officer handcuffed Brown and put him in a 

patrol car. Brown managed to steal the patrol car and led officers on a high-speed chase, 

reaching speeds more than 120 miles per hour. The police lost sight of the vehicle, and it 

was eventually found abandoned in Kansas City, Missouri. Several items of police 

equipment were missing from the vehicle, including three AR rifle magazines. The 

handcuffs were not recovered.

The State charged Brown with one count of eluding police, one count of theft, one 

count of interference with law enforcement, and one count of operating a motor vehicle 

without a driver's license. As part of a plea agreement with the State, Brown agreed to: 

(1) plead guilty as charged; (2) imposition of the aggravated prison sentence from the 

appropriate sentencing guidelines grid box; (3) either return the stolen equipment or, if it 

was sold, identify the buyers; and (4) pay restitution, costs, and fees. In exchange, the 

State agreed to join Brown's request for a downward dispositional departure to probation.

At sentencing, the district court noted that Brown had a criminal history score of B

and that Brown had committed his crimes while on parole, meaning his crimes would 

presumptively require prison. Given Brown's criminal history score, the presumptive 

prison sentence for his primary crime, theft, was (1) aggravated-31 months, (2) standard29 months, and (3) mitigated-27 months.
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Consistent with the plea agreement, the State asked the district court to impose the 

aggravated prison sentence for each count but grant Brown probation from any prison 

sentence. Brown's counsel made several arguments in support of probation, namely that 

Brown had accepted responsibility for his crimes by pleading guilty, Brown had spent 

several months in custody—which was intended to serve as an adequate punitive measure 

to ensure he would stay out of trouble, and Brown had family support. Counsel concluded 

by acknowledging the case was not "very palatable given both [Brown's] criminal history 

and the current allegations." Brown had previously spent a considerable amount of time 

in prison before his release in 2016. While Brown's parole performance had not been 

ideal, defense counsel admitted, Brown had "not violated the law since 2016 except for 

this case." Alternatively, Brown requested a durational departure from the presumptive 

term of imprisonment.

Almost immediately, the district court denied Brown's request for a dispositional 

departure, stating:

"All right. Well, Mr. Brown, all I know about your case is what I read in the 

affidavit. And from what I read in the affidavit, I—I cannot rightfully give you probation. 

You stole a police car while you were under arrest. I just—I don't get it. I—I just can't 

wrap my head around that. Not only did you steal the cop car, you go on a high speed 

chase. You're going 120 miles an hour in a 55 mile an hour zone? You are lucky you did 

not kill—kill someone, kill multiple people. How do you—I just can't—nothing in my 

mind can grasp that. Maybe you were scared. Maybe you didn't want to go back to jail, 

but my job up here is I generally try to follow plea agreements and I try to be fair, but my 

job up here is also to ensure the safety of the community. And I think if you were in my 

position looking at somebody who had made this same decision, I think you'd have a hard

time doing that also.

"So, you know, I try to give you a break looking at your criminal history because, 

you know, you made some bad mistakes back in the past, but, man, you didn't even do 

good after that. You know, I'm looking at your DOC records, you—you've been—you 
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had the chance to be paroled a long time ago and you get out, you go back in. You—you 

just can't follow the law. And I don't know if it's just bad decisionmaking or if you have a 

drug problem or I don't know what it is, but you're—you've gotta improve on 

decisionmaking 'cause it's just not there.

"So I cannot in my right mind follow this plea agreement. It's just unconscionable 

to me that a plea like this would have even been offered to you. But, on the other hand, 

you could have gone to trial and the State, you could have gone to trial, but—was there 

video of this? Yeah, I think there was because in the affidavit, the trooper watched the 

video.

"[PROSECUTOR]: Well, it was also—there was also the in car camera from the 

trooper's car as well. So it was—

"THE COURT: Yeah. So, I mean, you could have gone to trial, but I'm not 

sure—I understand why you accepted responsibility because you gave the trooper your 

license. He knew who you were. You were under arrest. So I understand accepting 

responsibility, but there's some case law out there that tells me that accepting 

responsibility is not good enough, that I have to find substantial and compelling reasons, 

which means very out of the ordinary. And I follow this guide right here and when I look 

at the B box and where you fall, the legislature tells me that it's my job to send you to 

prison."

However, the district court did grant Brown a durational departure on the theft 

charge to 24 months in prison and imposed concurrent sentences on the remaining counts. 

The reasons cited in the journal entry as a basis for departure were Brown's acceptance of 

responsibility and saving the time and costs of trial.

Brown timely appeals his sentences.
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DID THE DISTRICT COURT ABUSE ITS DISCRETION IN DENYING

BROWN'S REQUEST FOR A DISPOSITIONAL DEPARTURE?

On appeal, Brown argues that the district court erred by not departing further and 

granting his request for a dispositional departure to probation. He also complains the 

district court improperly relied upon KDOC records in its sentencing decision.

A departure sentence is subject to appeal by the defendant or the State, including 

when the complaint is that the district court "'did not depart enough.'" State v. Looney, 

299 Kan. 903, 908, 327 P.3d 425 (2014); see K.S.A. 2020 Supp. 21-6820(a); State v. 

Cooper, 54 Kan. App. 2d 25, 27, 394 P.3d 1194 (2017). We review a district court's 

departure decision for abuse of discretion. State v. Morley, 312 Kan. 702, 711, 479 P.3d 

928 (2021). An abuse of discretion occurs "when the judicial action is (1) based on an 

error of fact, (2) based on an error of law, or (3) unreasonable." 312 Kan. at 710. Brown 

bears the burden to show an abuse of discretion by the district court. See State v. Thomas, 

307 Kan. 733, 739, 415 P.3d 430 (2018).

The sentencing judge is required to impose the presumptive sentence set by the 

revised Kansas Sentencing Guidelines Act, K.S.A. 2020 Supp. 21-6801 et seq., "unless 

the judge finds substantial and compelling reasons to impose a departure sentence."

K.S.A. 2020 Supp. 21-6815(a). "The term 'substantial' in the sentencing departure context 

means something that is real, not imagined, and of substance, not ephemeral." Morley, 

312 Kan. 702, Syl. ¶ 3. To constitute a compelling reason to impose a departure sentence, 

the reason must be "one that forces a court—by the case's facts—to abandon the status 

quo and venture beyond the presumptive sentence." 312 Kan. 702, Syl. ¶ 4. When a 

district judge grants a departure, the judge must state the substantial and compelling 

reasons for the departure on the record at the time of sentencing. K.S.A. 2020 Supp. 21-

6815(a). A judge is not required to make any findings when denying a request for 

departure. State v. Florentin, 297 Kan. 594, 601-02, 303 P.3d 263 (2013), disapproved of 
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on other grounds by State v. Jolly, 301 Kan. 313, 342 P.3d 935 (2015). The reasons 

which justify a durational departure may not justify a dispositional departure.

Brown argues that the district court made both an error of law and an error of fact, 

and thus abused its discretion, when it denied his request for a dispositional departure. 

His chief complaint, relying on State v. Smith, 308 Kan. 778, 423 P.3d 530 (2018), is that 

the district court stated it relied on his KDOC records when those records were not 

admitted into evidence. This was a mistake of law, Brown argues, because the district 

court is not permitted to consider facts not in evidence and because the court could not 

have properly taken judicial notice of the KDOC records. See 308 Kan. at 784; Supreme 

Court Rule 601B, Canon 2, Rule 2.9(C) (2021 Kan. S. Ct. R. 491) (judge shall only 

consider evidence presented and facts judicially noticed). Brown then argues that this 

alleged error caused the district court to commit a mistake of fact because its findings 

regarding his criminal history are not supported by evidence in the record. The State

counters that the district court did not consider Brown's KDOC records in denying his 

request for probation.

The district court stated it was "looking at [Brown's] DOC records" and Brown 

"had the chance to be paroled a long time ago," but when he got out, he went back in. The 

parties ascribe different interpretations to the statement at issue. Brown acknowledges the 

statement is not explicitly clear but claims it seemed the judge was referencing one or 

more parole violation sanctions included in his KDOC records. The State believes the 

judge was noting that Brown "had been denied postrelease, ostensibly because of his 

actions while in custody."

Our review of the sentencing transcript shows that the district court did not 

conduct an evidentiary hearing at sentencing. This fact alone distinguishes this case from 

Smith, which involved an evidentiary hearing concerning whether the defendant had 

wanted to appeal. Admittedly, the district court perhaps implicitly took judicial notice of 
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the presentence investigation report and material from the case file, but it heard 

arguments and representations from counsel and Brown's allocution without conducting 

an evidentiary hearing or putting anyone under oath. We see no error despite our 

presumption that the district court considered all of this when making its sentencing 

decision because "[a] sentencing court is free to consider a broad range of information 

about the defendant at sentencing." See State v. Trautloff, No. 110,819, 2014 WL 

7152345, at *3 (Kan. App. 2014) (unpublished opinion) (relying upon Williams v. New 

York, 337 U.S. 241, 246-51, 69 S. Ct. 1079, 93 L. Ed. 1337 [1949]).

But even if we were to assume that Brown's KDOC records were off limits to the 

district court, it did not state that it was relying on the records to deny probation, despite 

commenting on them. Instead, the district court specified that it was not granting Brown 

probation due to the facts leading to his convictions, particularly that he stole a police car 

while under arrest and led police on a high-speed chase that created a serious risk of 

injury or death. It was not an abuse of discretion to deny Brown's request for probation on 

this ground. There is no indication that the information about Brown's parole 

performance factored into the district court's decision. We affirm Brown's sentences.

Affirmed.