                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              No. 110,962

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                           CURTIS T. HORN,
                                             Appellant.


                                   SYLLABUS BY THE COURT


1.
        It is generally within a sentencing judge's discretion to determine whether a
sentence should run concurrent with or consecutive to another sentence.


2.
        Judicial discretion may be abused in three ways: (a) if no reasonable person
would have taken the view adopted by the trial court; (b) if the judicial action is based on
an error of law; or (c) if the judicial action is based on an error of fact.


        Appeal from Wyandotte District Court; ROBERT P. BURNS, judge. Opinion filed June 19, 2015.
Affirmed.


        Joanna Labastida, of Kansas Appellate Defender Office, was on the brief for appellant.


        Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.




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The opinion of the court was delivered by


       BILES, J.: Curtis T. Horn pleaded guilty to two counts of felony murder and
received consecutive life sentences. He directly appeals the consecutive nature of the
sentences. We affirm because Horn has not demonstrated that the district court abused its
discretion by imposing consecutive life sentences.


                           FACTUAL AND PROCEDURAL BACKGROUND


       Horn pleaded guilty to two counts of felony murder based on the February 2,
2013, deaths of his girlfriend, Brandi Johnson, and Johnson's 2-year-old niece, Amiyah
McClenton. At the plea hearing, Horn admitted he intentionally set fire to an apartment,
killing Johnson and McClenton.


       For its factual basis supporting the plea, the State summarized that Horn and
Johnson argued and then Horn hit and strangled Johnson until he believed she stopped
breathing. McClenton came out of her room and witnessed this. The State then explained:


       "[T]he child was a verbal child, she knew who [Horn] was, she could speak. At that
       point, [Horn] then led the child back into her bedroom [and] shut the door. He then set a
       fire out in the living room and then left the apartment, did not call the police, but called
       his father to pick him up and basically walked away from the scene. That fire consumed
       the apartment and it killed both [Johnson] and [McClenton]."


       Horn's counsel clarified that, according to Horn's statement, Horn intentionally set
the fire in the room Johnson was in but he did not anticipate that the fire would kill
McClenton.



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       In advance of sentencing, Horn filed a motion seeking concurrent sentences
because he: (1) cooperated with police; (2) showed remorse; (3) had his family's support;
(4) lacked a serious prior criminal record; (5) waived his preliminary hearing and pleaded
guilty, which saved the State resources and the victims' family from reliving the
experience; and (6) was impaired by cocaine and alcohol use. He also argued concurrent
sentences served the interest of justice because both killings were committed at the same
time as part of one event and he was enraged after Johnson struck him. Horn alleged he
did not know that setting fire to the living room would cause McClenton's death.


       At the sentencing hearing, defense counsel renewed the motion for concurrent
sentences based on the same grounds and the State opposed it. The State recommended
consecutive life sentences, arguing Horn deserved a life sentence for each life he took,
was a danger to the community, and should not be parole eligible at 57 years old. In
addition, at least 20 of the victims' family and friends spoke, and many of them asked for
the maximum penalty. Horn also addressed the court, indicating he was "deeply sorry for
what took place" and did not mean for McClenton to get caught in the fire. He said he
was under the influence of drugs and alcohol the day he killed the victims and thinks
about his crimes every day.


       The district court denied Horn's request and sentenced him to two consecutive life
sentences with a mandatory minimum of 20 years each. Horn directly appeals to this
court. Our jurisdiction arises under K.S.A. 2014 Supp. 22-3601(b)(3) (maximum
sentence of life imprisonment imposed).


                                NO ABUSE OF DISCRETION


       Horn acknowledges the trial court generally has discretion to determine if a
sentence should run concurrent with or consecutive to another sentence. State v. Mosher,
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299 Kan. 1, 2-3, 319 P.3d 1253 (2014) (citing State v. Ross, 295 Kan. 1126, 1138, 289
P.3d 76 [2012]). And as this court recently noted in Mosher, this principle of judicial
discretion is so entrenched that the legislature prohibits defendants from raising it if the
sentence is imposed under what is now the Revised Kansas Sentencing Guidelines Act
(RKSGA), K.S.A. 2014 Supp. 21-6801 et seq. See K.S.A. 2014 Supp. 21-6820(c)(1);
Mosher, 299 Kan. at 2-3. But Horn's life sentences are off-grid, so they do not fall under
the RKSGA. See Ross, 295 Kan. at 1137-38. Horn may appeal the consecutive nature of
his sentences, but he must establish an abuse of discretion to prevail.


       Judicial discretion may be abused in three ways: (1) if no reasonable person
would have taken the view adopted by the trial court; (2) if the judicial action is based on
an error of law; or (3) if the judicial action is based on an error of fact. State v. Ward, 292
Kan. 541, 550, 256 P.3d 801 (2011), cert. denied __ U.S. __, 132 S. Ct. 1594 (2012).
Horn argues the district court ordered consecutive sentences without explanation and that
no reasonable person would agree. The record demonstrates otherwise.


       When imposing consecutive sentences, the district judge acknowledged the
reasons proffered by defense counsel and Horn, and then he stated:


               "I believe all parties and everyone here in the courtroom is in agreement that the
       events of February 2nd are tragic. What started out as an argument between the defendant
       and Ms. Johnson escalated into a physical confrontation and then the defendant
       ultimately strangled Ms. Johnson to her death. Obviously the killing of another person is
       a tragedy in and of itself. Unfortunately, however, sometimes as a society, we become
       numb to domestic violence even when it results in the loss of life. Whatever the reason
       was for the argument, whatever caused it to escalate to the point that it did, those reasons
       are irrelevant. The bottom line is that the defendant strangled [Johnson] to her death.


               "In this case, however, it was the actions of [Horn] immediately after he
       strangled [Johnson] that are truly troubling and truly horrific. [McClenton] was not yet
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       three years old . . ., yet [Horn], for reasons only known to him, decided she could be used
       as a witness against him as she observed him causing the death of [Johnson]. Defendant
       placed the child in a bedroom and lit the apartment on fire. Young [McClenton]
       eventually died of smoke inhalation. . . She was not yet able to even have dreams of what
       her life could be. Her life ended suddenly, tragically, inexplicably."


       The court further noted Horn placed many other lives at risk by setting fire to the
apartment building. And as to Horn accepting responsibility for his actions, the court
concluded there was no rational explanation for what he did and that Horn must face the
consequences.


       We hold the district court did not abuse its discretion when it ordered Horn to
serve the sentences consecutively. The district court made an adequate record of its
decision. It specifically acknowledged Horn's proffered reasons for imposing concurrent
sentences, but it ordered consecutive sentences citing the senseless nature of the crime
and the vulnerability of the child victim. Based on the case facts, a reasonable person
could agree with the district court's decision to run the sentences consecutively.


       Affirmed.




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