Opinion
No. 106,835.
2013-01-18
STATE of Kansas, Appellee, v. Nathan A. HARE, Appellant.
Appeal from Sedgwick District Court; David J. Kaufman, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Erin Flood, legal intern, Julie A. Koon, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; David J. Kaufman, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Erin Flood, legal intern, Julie A. Koon, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Nathan A. Hare entered a guilty plea to the off-grid crime of rape of a child under the age of 14. The sentence for Hare's crime is primarily governed by K.S.A. 21–4643, known as Jessica's Law, which enhances the severity level of specific crimes, including rape of a child under the age of 14 if the defendant is over 18 years of age. K.S.A.2010 Supp. 21–4643(a)(1)(B). The district court imposed a hard 25 life sentence under Jessica's Law, meaning Hare would only be eligible for parole after serving 25 years in prison. On appeal, Hare argues he should be eligible for parole after serving 20 rather than 25 years in prison and claims the district court abused its discretion when it denied his motion to depart from the sentence provided for in Jessica's Law. For the reasons stated below, we affirm.
On May 16, 2011, Hare pled guilty to two counts of rape of a child under the age of 14, contrary to K.S.A.2010 Supp. 21–3502(a)(2). In exchange for Hare's guilty plea, the State agreed to dismiss a charge of aggravated criminal sodomy and not oppose Hare's request for a departure sentence. Because Jessica's Law applied to Hare's case, the district court informed Hare that he faced a possible sentence of life without the possibility of parole for 25 years.
Hare subsequently filed a motion for a durational departure sentence in which he requested a departure from a Jessica's Law life sentence to half of the middle number of the applicable Kansas Sentencing Guidelines Act (KSGA) grid box. Hare argued the departure was justified by certain mitigating factors, including his acceptance of responsibility; his lack of criminal history; and a recommendation from Dr. Bruce Nystrom that Hare was an “excellent candidate” for sex offender treatment. The State recommended that the district court impose a KSGA sentence of 351 months. After considering counsel's arguments, the district court denied Hare's departure motion and sentenced Hare to life in prison with no parole eligibility for 25 years.
Hare contends the district court committed two errors in imposing his sentence. First, he claims the court erred in sentencing him to a hard 25 sentence rather than a hard 20 sentence. Second, he alleges the court erred in denying his motion for a downward durational departure sentence. We address each of these allegations in turn.
1. The district court correctly imposed a hard 25 sentence
Hare argues that the rule of lenity requires him to be sentenced to a hard 20 life sentence rather than a hard 25 life sentence because his parole eligibility fits within the statutory language of K.S.A.2011 Supp. 22–3717(b)(2) and K.S.A.2011 Supp. 22–3717(b)(5).
The Kansas Supreme Court recently rejected this argument in State v. Cash, 293 Kan. 326, 327–29, 263 P.3d 786 (2011), and State v. Chavez, 292 Kan. 464, 465–69, 254 P.3d 539 (2011). Hare concedes that the Supreme Court has decided this issue adversely to him but contends that its ruling was erroneous.
In Cash and Chavez, the Supreme Court noted that the parole eligibility provision relied on by Hare—K.S.A.2011 Supp. 22–3717(b)(2)–is a general provision allowing for parole after an inmate convicted of an off-grid crime has been in prison for 20 years. The court also noted that K.S.A.2011 Supp. 22–3717(b)(5)–which established a more specific 25–year mandatory minimum prison term for sentences governed by Jessica's Law, K.S.A.2010 Supp. 21–4643–was contained in the same legislation. See Cash, 293 Kan. at 328–29, 263 P.3d 786;Chavez, 292 Kan. at 468, 254 P.3d 539. Thus, the Supreme Court concluded that the general rule of strict construction of criminal statutes must give way to the constraint that statutory interpretation “must be reasonable and sensible to effect legislative design and intent,” and that “the rule of lenity is subject to the existence of ‘any reasonable doubt’ as to the statute's meaning.” Chavez, 292 Kan. at 468, 254 P.3d 539; see Cash, 293 Kan. at 329, 263 P.3d 786. To that end, the Chavez court held:
“Given the specific language of subsection (b)(5) as compared to the more general language of subsection (b)(2), together with the concurrent adoption of the mandatory minimum sentences in K.S.A. 21–4643 and the parole eligibility provision in K.S.A. 22–3717(b)(5), there can be no reasonable doubt that the legislature intended for a person convicted of aggravated indecent liberties with a child to be parole eligible only after serving the mandatory minimum sentence specified in K.S.A. 21–4643.” 292 Kan. at 468, 254 P.3d 539.
According to Hare, K.S.A.2011 Supp. 22–3717(b)(2) and K.S.A.2011 Supp. 22–3717(b)(5) can be read in harmony, and therefore, the rule that a specific statute controls over a more general statute is inapplicable. Specifically, Hare asserts that “the fact that an inmate is eligible for parole after 25 years does not mean that the inmate is not also eligible after 20 years.” But this argument was addressed in Cash, where the Supreme Court stated: “We are particularly unmoved by the argument that the two subsections can be read in harmony and, therefore, the rule that a specific statute prevails over a more general statute is inapplicable.” 293 Kan. at 329, 263 P.3d 786.
Relying on State v. Horn, 288 Kan. 690, 206 P.3d 526 (2009), Hare notes that when the legislature amended K.S.A. 22–3717 in 2006, it did not exempt Jessica's Law offenses from parole eligibility after 20 years. In Horn, our Supreme Court applied the rule of lenity to the provisions of two separate statutes which each applied to the sentencing of attempted aggravated criminal sodomy in order to determine which statute controlled Horn's sentence. 288 Kan. at 692, 206 P.3d 526. Unlike Horn, the present case involves two provisions within the same subsection of the same statute, thus, it is appropriate to consider the provisions in pari materia, with a view of reconciling and bringing them into workable harmony. See Chavez, 292 Kan. at 468, 254 P.3d 539.
Simply put, we are duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Because the court has given no such indication, Hare's argument that he should be entitled to parole eligibility in 20 years necessarily fails.
2. The district court did not abuse its discretion in denying Hare's departure motion
Jessica's Law provides that a first-time offender convicted of raping a child under the age of 14 must be sentenced to life imprisonment with a minimum term of at least 25 years “unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” K.S.A.2010 Supp. 21–4643(d).
Hare contends the district court erred in denying his departure motion in light of the mitigating circumstances he asserted in support of his motion: (1) his acceptance of responsibility, (2) his lack of criminal history, and (3) the psychological evaluation deeming him an “excellent candidate” for sex offender treatment. The State responds that the severity of Hare's convictions outweighed any mitigating factors.
An appellate court reviews the district court's denial of a sentencing departure for abuse of discretion. State v. Spencer, 291 Kan. 796, 807, 248 P.3d 256 (2011). Under this standard, we can find an abuse of discretion under the following circumstances:
“[I]f judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012) (citing State v. Gonzalez, 290 Kan. 747, 755–56, 234 P.3d 1 [2010] ).
Jessica's Law provides a nonexclusive list of mitigating circumstances a district court may consider when deciding whether to depart from the statutorily prescribed sentence. See K.S.A.2010 Supp. 21–4643(d). “The term ‘substantial’ refers to something that is real, not imagined; something with substance and not ephemeral. The term ‘compelling’ implies that the court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary. [Citation omitted.]” State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 (2001). When considering whether a defendant has established a substantial and compelling reason to depart from an off-grid sentence, the district court does not “simply add together the total number of mitigating circumstances and then contrast them with the total number of aggravating circumstances.” State v. Ballard, 289 Kan. 1000, 1009, 218 P.3d 432 (2009). Nor is each mitigating circumstance required to sufficiently justify a departure by itself, so long as the collective circumstances constitute a substantial and compelling basis for departure. Spencer, 291 Kan. at 815, 248 P.3d 256.
At the sentencing hearing, defense counsel argued that Hare was entitled to a downward durational departure sentence based on the circumstances set forth in his written motion: (1) Hare's willingness to take responsibility for the crimes, (2) Hare's lack of criminal history, and (3) the psychological evaluation indicating that Hare was a good candidate for sex offender treatment. Specifically, counsel relied on Dr. Nystrom's recommendation for sex offender treatment and pointed to Hare's actions of self-reporting his crimes to law enforcement and entering a guilty plea in order to spare the victim, his stepdaughter, the trauma of testifying in court. Defense counsel presented the district court with a letter from Hare's mother, as well as testimony from Hare's stepfather, generally stating that Hare was a good person who became involved in a bad situation and that he would benefit from therapy and reduced prison time.
On the other hand, the State argued that Hare was likely to reoffend because his crimes involved a course of conduct and the psychological evaluation relied on by Hare indicated that he did not believe he had a problem. The victim's mother asked the court to impose the maximum sentence because she feared that Hare would reoffend.
The district court reviewed the mitigating circumstances presented by Hare and denied the departure motion. The judge, stating that he “in good conscience can't give a sentence other than life,” reasoned:
“[W]hatever the motivation for Mr. Hare to come to the law enforcement personnel and admit the crime ... whatever moral motivation that was ... really between Mr. Hare and his Maker, but legally it doesn't have much significance to me because the crime is too great ... and I don't find it to be a mitigator that justifies anything less than a life sentence, because these crimes are so destructive; and if in trying to resolve guilt or the moral complexities of your decision by admitting to law enforcement your deeds is a justification, that's really a license to do anything you want in this world [be]cause that's really what it comes down to. It's a disconnect to me.
“The argument for plea agreements being followed also is that the 12–year–old didn't have to testify at trial.... I somewhat reject the notion that the 12–year–old was spared psychological and emotional harm by having to testify. I reject that notion. I reject it in this case because I believe that type of argument minimizes the harm that she has already suffered and will for the rest of her life; and there is a strong argument, and there are strong studies out there that say it's somewhat cathartic for victims to get in court and be able to have their voice heard, and even though she may be only 12 years old and not able to articulate or understand the ramifications as she grows up psychologically and emotionally, I reject the notion that a 12–year–old was actually spared.
....
“[I]f [Hare's] state of mind and psychological makeup is as consistent with as Dr. Nystrom says it is, then he should probably be paroled in the year 2035, but to give him a determinate sentence in my mind is not appropriate, [be]cause I think there is a safety issue here with the community.”
The district court orally reviewed the mitigating factors advanced by Hare and concluded that there were no substantial and compelling reasons to grant Hare's motion for a downward durational sentencing departure. In light of the circumstances here, where the crime involved the rape of Hare's 12–year–old stepdaughter, it cannot be said that no reasonable person would agree with the court's decision. Consequently, the district court did not abuse its discretion in denying Hare's motion to depart from Jessica's Law to the KSGA.
Affirmed.