A Colordado man was spared a prison sentence Thursday when the judge determined his access to treatment programs met the standards for a non-prison sentence.
Ellis County Attorney Tom Drees had argued for prison, saying the amount of drugs David Irvin-Linneman had been found in possession of indicated he intended it for sale.
Irvin-Linneman was originally charged in August 2017 in Ellis County District Court with felony charges of possession of 12 pounds of marijuana with intent to distribute, possession of 157 grams of Tetracannabinol (THC) concentrate with intent to distribute and two counts of drug tax stamp violations.
“This was a commercial distribution, not personal use,” Drees said in his argument.
According to documents filed Ellis County District Court, Irvin-Linneman, 27, Colorado Springs, was arrested after a traffic stop Aug. 19, 2017, about 2 miles west of Hays on Interstate 70. He had been stopped by the Kansas Highway Patrol for failing to maintain a single lane of travel.
The patrolman prepared a warning, but while handing his drivers license bak to Irvin-Linneman, the patrolman noticed a strong odor of marijuana, according to the court filing.
In a plea agreement, the charges were amended to possession of less than 3.5 grams of marijuana with intent to distribute and possession of less than 3.5 grams of THC. The tax stamp charges remained.
With Irvin-Linneman’s lack of criminal history, that put the conviction in what’s known as a “border box” on the Kansas drug sentencing grid, the guidelines used in determining sentence. In a border box case, the judge can impose either a prison sentence or probation.
The prison sentence would have been 12 months for the possession charges and about four months for the tax stamp charges, Drees said, a maximum of 16.8 months if served consecutive, or one year if served concurrent with time off for good behavior.
Drees argued that under Kansas statutes, prison would be the presumptive sentence. While probation would not be a departure from sentencing, the court must find that a drug treatment program is available to the defendant within a short amount of time, treatment would lead to a lesser chance of recidivism, be in the best interest of justice and would promote community safety.
Drees said Irvin-Linneman’s attorney, Donald F. Hoffman of Hays, had made no court filings to support those findings.
In Thursday’s sentencing hearing Hoffman laid out his case for probation and treatment. Irvin-Linneman, he said, has followed all the requirements of his bond, including having no alcohol or drugs since his arrest. He is employed full-time in Colorado Springs and has completed 32 hours of an online accounting degree, he said, and he has the support of his family.
“If there were anyone more suited for downward departure, I don’t know who it would be,” Hoffman said.
Hoffman assured the judge Irvin-Linneman expected he could find a treatment center in Colorado Springs.
After a 40-minute recess, Bittel agreed with Hoffman's assesment.
“Colorado Springs is a large metropolitan area with multiple treatment programs he can be admitted to within a reasonable time,” Bittel said.
He also outlined he found the other requirements could be met, and seteneced Irvin-Linneman to 18 months probation for the primary charges and 12 months for the secondary tax stamp charges, to be served concurrently.
Bittel gave a 60 day deadline for enrolling in a treatment program.