The Kansas Supreme Court reverses a Court of Appeals’ decision in a Salina case vacating the district court’s imposition of a downward departure sentence.

The case involves several crimes Sean Bird of Salina was convicted of, including the robbery of a Taco John’s Restaurant.

In reversing the Appeal’s Court decision, the Supreme Court upholds the original Saline County District Court sentence.

According to court records, after Bird was arrested for robbing a Taco John’s restaurant, law enforcement officers executed a search warrant on his home and discovered controlled substance s and drug paraphernalia. Based on this evidence, the State charged Bird with robbery, criminal threat, possession of cocaine, possession of marijuana, and possession of drug paraphernalia. Bird eventually pled guilty to possession of cocaine, and in return the State dismissed the remaining drug charges. A jury convicted Bird of criminal threat and a lesser included theft charge but acquitted him of robbery.

Prior to sentencing, Bird filed a motion for a downward durational and dispositional departure. Th e motion did not specify the crimes for which he sought a departure, but it did cite several factors in support of his request, including his acceptance of responsibility for his actions; his lack of capacity for judgment at the time of the offense because of a mental impairment; and his promise to participate in a proposed rehabilitation plan.

At the sentencing hearing, the State opposed any departure and sought the maximum penalty for each conviction, 42 months’ imprisonment for possession of cocaine, 7 months’ imprisonment for criminal threat, and the 12 months already served for the theft conviction.

At the hearing, Bird also was sentenced for battery and theft convictions stemming from a similar but separate offense at a Dillon’s store. In that case, the State sought a controlling sentence of 12 months’ imprisonment with the sentence to run consecutive to his sentences in this case. Bird testified in support of his departure motion, asking the court to grant him probation. Bird testified that just before he committed the Taco John’s and Dillon’s offenses, his fiancée had experienced “graphic” back-to-back miscarriages, which caused him significant stress. Consequently, Bird claimed he “wasn’t working with a rational mind” when he committed the crimes. Bird concluded he does not deal well with tragedy, and he stressed that he is not a “violent, personal crime offender that notoriously hurts, preys on people.”

Consistent with this message, Bird testified he committed the two robberies reflected in his criminal history with “no weapon, no force, [and] no threat.” He further explained that he committed the prior robberies within 24 hours of each other and in the 2 – week period preceding the robberies his father died and he lost his 6-month-old daughter to Sudden Infant Death Syndrome. Bird also characterized a prior conviction for residential burglary as a non violent crime that occurred when he entered a friend’s house to reclaim property he thought was his.

Bird testified he did not begin using drugs until he was age 23, about the time his mother died, and that he was clean for 6 years until the deaths of his father and infant daughter. Bird stated he never sold drugs and the cocaine found in his home was residue from an empty baggie. Bird expressed his
willingness to complete a recovery program and indicated he had job opportunities awaiting him and a support network of family and churches.

Before imposing sentence, the district court characterized Bird’s life as “a Nashville source of lyric for music, ” and described Bird’s thefts as “impulse type crimes” unlikely to result in large economic gain.

The court noted the lack of any apparent logic to Bird’s high-risk, low-reward crimes, and further pointed out that the thefts at both Taco John’s and Dillon’s resulted in only brief physical contact with the victims and limited monetary and property damage.