HUTCHINSON, Kan. — A 29-year-old Hutchinson man who entered a plea to an amended complaint that includes nine charges involving drugs and was granted one year community corrections on a 20-month sentence, but ordered to serve the remaining time in prison for a previous case also involving drugs, saw a decision.
Benito Montalbo had entered “no contest” pleas to possession of morphine, possession of marijuana with a prior conviction, five counts of possession of a controlled substance with a prior conviction, possession of drug paraphernalia, and driving while suspended. The state, in exchange, agreed to not file additional charges against the defendant.
During the sentencing hearing, the state had argued for prison time, but Judge Trish Rose granted the community corrections as part of a departure motion by the defense. The state appealed and the Kansas Court of Appeals ruled that she didn’t specify on the record why she was granting the departure. Judges, when they grant a departure, must state on the record that they found substantial and compelling reasons to depart. She apparently didn’t do that, so the case will come back for re-sentencing.
Montalbo was stopped by a Reno County Sheriff Deputy back on Jan. 21 of last year at 6th & Porter when the deputy apparently knew his driver’s license was suspended. Allegedly on his person was a small plastic bag of synthetic marijuana or K-2. On the console of his vehicle was a small amount of marijuana, morphine pills, other various types of pills and zigzag rolling papers.
Montalbo argued for another chance, telling the judge that serving the six months in prison made him realize that prison is not for him and that it changed his whole outlook. He did stipulate to violating his corrections by using drugs.
The defense could file for a review by the Kansas Supreme Court, but whether they will is unknown.