Despite a plea to the court that he was ready to turn around a lifestyle of substance abuse, an Ellis County judge on Friday denied a man’s request for departure from standard sentencing on drug charges, but gave him less time than the county attorney recommended.
Donald Irving was convicted Sept. 27 after a two-day trial on felony charges of distribution of marijuana within 1,000 feet of a school, use of a communication facility to distribute a controlled substance and conspiracy to distribute marijuana within 1,000 feet of a school.
His co-defendent in the case, David Draper, pled to charges of distribution and felony possession of marijuana and methamphetamine and was sentenced to 31 months in prison, Ellis County Attorney Tom Drees said.
The presumed prison sentences for Irving’s conviction, according to state guidelines, are 78 months for the distribution charge, eight months for the use of phone and 43 months for the conspiracy charge.
Ellis County District Judge Blake Bittel ruled the sentences to be served concurrently, however, for about 6.5 years in prison. Irving will receive 329 days credit for time served in jail since his Oct. 23, 2017, arrest, and will serve 36 months post-release supervision for the distribution charge.
Irving’s appointed attorney, Olavee Raub, said he will appeal the decision.
In the motion to depart from standard sentencing, Raub requested probation so Irving could seek inpatient treatment for his addiction, or, alternatively, a downward departure to 12 months in prison.
Drees argued that due to Irving being a chronic violator with 35 prior convictions, the standard sentences should be served consecutively for a total of 129 months, or almost 11 years.
Raub argued Irving’s minimal participation in the offense does not warrant the lengthy sentence.
Irving only texted a confidential informant at the direction of Draper to arrange the sale, she said.
“I find I have a hard time wrapping my head around 129 months for a text message,” Raub said in Friday’s hearing.
She also argued that, because the offenses were part of a a controlled drug buy, no drugs were distributed and there was no harm to the community.
Further, Raub argued, of Irving’s 35 prior convictions, two-thirds are for minor offenses — including 14 for worthless checks and six driving offenses.
Drees’ response to the motion also lists felony convictions including sale of depressants in Harvey County, and in Ellis County misdemeanor convictions of domestic battery and three assaults.
Irving grew up in the foster care system, Raub said, starting from when he was removed from his home in Thomas County due to substance abuse issues, which he has also struggled with, she said.
“At one point he embraced that lifestyle,” she said.
But at his release from his most recent of three prison terms, he had lost everything, including family and friends who were a support system, she said.
“As drug addicts will do, he fell back into using drugs,” she said.
But Irving now recognizes he needs to change his life, she said. He has sought treatment while in custody and has been a model prisoner, even working in the jail kitchen.
Irving spoke at his sentencing, referring at times to a written statement.
“I’m not a perfect person,” he said. “I hadn’t asked for help, but I wasn’t ready.
“I’m coming to that point in my life where I do want to change,” he said.
He told the court that before his arrest, he was working as an assistant manager at two jobs.
“I never had that in my life before,” he said.
“I want to ask that you give me the chance before you just throw me away,” he said.
Drees argued Irving has had many opportunities to change his life, and brought John Trembley, director of Northwest Kansas Community Corrections, to the stand to testify.
Trembley said Irving first came under Community Corrections supervision in 2007 and again from 2012 to 2015, then on supervised parole in 2017.
His supervisions and parole were revoked due to a string of violations outlined by Trembley that included failures to report to supervision officers, failures to report for treatment and termination from inpatient treatment.
He was referred in 2007 for mental health and drug evaluations, but never showed, Trembley said. He went to inpatient treatment in 2014, but did not participate in the program, he said.
In cross-exam, Raub asked Trembley if Irving’s request for help now doesn’t affect his decision to recommend against supervision.
“It’s not uncommon to ask for inpatient treatment when facing prison,” Trembley said.