Despite an effort by his defense attorney to get him probation, a judge sentenced Charles E. Simmons Monday to 30 months in prison for possession of cocaine in 2004.
Gil Gregory, Simmons' attorney, asked Bourbon County Court Judge Mark Ward to place his client on probation, instead of presumptive prison that was called for under the Kansas sentencing guidelines.
"Charles is a good candidate for probation," Gregory said. The 35-year-old knows what he has to do to get his life back on track, Gregory said, and probation would help accomplish that.
Gregory said he conceded that Simmons missed and was late for court appearances and absconded for about a year that resulted in his arrest in May.
In March 2004, Fort Scott Police arrested Simmons after finding .41 grams of cocaine on him. He was charged with possession of cocaine with the intent to sell. The charge was amended to possession of cocaine.
Simmons, in January 2006, pleaded guilty to the charge.
The relatively small amount of the drug was not a significant amount, even though possession of cocaine is a serious offense, Gregory said. He asked why that amount would even prompt a possession charge.
Bourbon County Attorney Terri Johnson said the amount was enough to compel the charge. It wasn't like there was cocaine residue in drug paraphernalia or anything like that, she said.
Simmons' prior criminal record determined a presumptive prison sentence, and Ward adhered to the Kansas sentencing grid.
On Oct. 18, Gregory filed a motion to withdraw the guilty plea, saying Simmons apparently didn't recall and therefore didn't inform counsel that he had a prior conviction of first degree burglary in 1990 in Jackson County, Mo. That conviction altered Simmons' placement in the Kansas sentencing guidelines to presumptive prison instead of presumptive probation, which led Gregory to advise his client to plead guilty. Simmons wouldn't have pleaded guilty if he had known about how the prior conviction changed his sentencing recommendation, according to court records.
The motion was denied.
In 2003, Simmons was also convicted of theft in Bourbon County. Also, he tested positive for marijuana in July 2003 while on probation for the theft charge.
Ward said "problems" arise concerning the proposed allowance of probation. Those problems are two-fold: Simmons' prior criminal history and his absconding and being late for court appearances.
The judge would have to find "substantial and compelling reasons to ignore the law," which in this case was the recommended prison term established by the sentencing guidelines, Ward said. Those compelling reasons didn't exist, based on Simmons' prior actions.
Simmons said that situations with his family caused his absconding and tardiness for court appearances. His fiance had a difficult pregnancy and he was scared, depressed, and traumatized because of what was going on in his life, he said.
He has since found God and wants to do the right thing from this point forward, Simmons told Ward.