HUTCHINSON, Kan. — A 29-year-old man was denied a departure by District Judge Trish Rose in large part because of his criminal history.

Benito Montalbo was convicted of possession of morphine and marijuana as well as various other charges. Judge Rose sentenced him to 2 years and 10 months with all the convictions running concurrently to each other.

During a previous sentencing hearing, the state argued for prison time, but Judge Trish Rose had 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 came back for re-sentencing. This time, however, she ruled she couldn’t find anything compelling to depart to a non-prison sanction. She also denied a lesser time in prison.

Montalbo was stopped by a Reno County Sheriff’s Deputy back on Jan. 21 of 2014 at 6th & Porter. The deputy apparently knew Montalbo’s driver’s license was suspended. Allegedly on his person was a small plastic bag of synthetic marijuana or K-2. A small amount of marijuana, morphine pills, other various types of pills and zigzag rolling papers were found on the console of his vehicle.