Opinion
No. 106,680.
2012-11-9
STATE of Kansas, Appellant, v. William JOLLY, Appellee.
Appeal from Saline District Court; Rene S. Young, Judge. Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellant. Janine Cox, of Kansas Appellate Defender Office, for appellee.
Appeal from Saline District Court; Rene S. Young, Judge.
Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellant. Janine Cox, of Kansas Appellate Defender Office, for appellee.
Before MARQUARDT, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
The State appeals the district court's second downward departure sentence to William Jolly after the Kansas Supreme Court remanded his case for resentencing. See State v. Jolly, 291 Kan. 842, 249 P.3d 421 (2011). We reverse and remand for resentencing.
Jolly was charged with one count of rape of a child under 14 years of age, in violation of K.S.A. 21–3502(a)(2) and (c), and one count of an off-grid aggravated indecent liberties with a child under 14 years old, a person felony pursuant to K.S.A. 21–3504(a)(3)(A) and (c). Jolly pled guilty to the rape charge, and the State agreed to dismiss the aggravated indecent liberties charge. Jolly requested a departure from a Jessica's Law life sentence under K.S.A. 21–4643(a). The sentencing court granted Jolly's departure request, and he was sentenced to 165 months' imprisonment with lifetime postrelease supervision.
Jolly appealed, and our Supreme Court held that the district court failed to follow the correct procedural steps in imposing Jolly's departure sentence; therefore, it determined that the sentence was illegal and remanded the case for resentencing.
Facts
In June 2007, 12–year–old C.E. was sexually assaulted by her mother's boyfriend. After that, she went to live with her grandmother R.E. On July 15, 2007, C.E. was invited by Jolly's stepson to come over to Jolly's mother's house to play. Jolly's family and C.E.'s family were long-time friends. Because of this relationship with the family, Jolly knew that C.E. had recently been sexually abused by her mother's boyfriend.
At some time during the day on July 15, 2007, Jolly was lying on a bed in the basement of his mother's home when C.E. came downstairs and “snuggled up” to him. He stated that “one thing led to another with me wondering how much had happened at her home with her mother's B/F and how many things happened so I began caressing her and progessed [ sic ] in steps to see how far she would let me go.” Jolly began by touching C.E.'s breasts and then he began rubbing her vagina. He penetrated her vagina with his finger, and in his statement to the investigating officer, Jolly said
“that at this point his whole ‘mindset changed’ from ‘clinical exploration to more the lover attitude to make her feel good.’ He then pulled his penis out of his pants and rubbed it on C.E. to become erect. Jolly penetrated C.E.'s vagina with his penis and only removed it when he heard a noise that caused him to ‘snap back to reality.’ C.E. then left Jolly's residence and later reported the incident to her grandmother.” Jolly, 291 Kan. at 844.
At Jolly's resentencing hearing, the court heard arguments from counsel and statements from C.E.'s grandmother and Jolly. Jolly again requested a downward departure sentence. Jolly's counsel stated that: (1) he was eligible for a departure because he had no prior record; (2) Dr. Barnett's evaluation indicated that Jolly was not a risk to the community; and (3) Jolly's “admission and cooperation have resulted in the victim not being further harmed by his acts.”
In opposing Jolly's request for a departure, the State argued that aggravating factors existed in this case, specifically emphasizing the vulnerable position of C.E. as a recent victim of sexual abuse by her mother's boyfriend. The State pointed to the fact that Jolly was a long-time family friend and that he chose to violate C.E.'s trust and rape her despite her vulnerability. In addition, the State asked the court to disregard Dr. Barnett's evaluation because it was based on inaccurate information provided to Dr. Barnett by Jolly. The State asked the court to consider the statements of C.E.'s grandmother, who testified about the trauma suffered by C.E. and her opinion that Jolly should not receive any leniency in sentencing. Finally, the State asked the court to consider that C.E. wished Jolly would receive the most time possible and spend the remainder of his life in jail.
C.E.'s grandmother stated that she did not believe that the court “should let him out, any good time, or anything at all.” C.E.'s grandmother stated that Jolly “knew everything that was happening [in] [C.E.]'s life and he chose that moment to rape her.” C.E.'s grandmother stated that Jolly violated C.E.'s trust and that “she will never be the same.”
After hearing from C.E.'s grandmother and the arguments of counsel, the resentencing court granted Jolly's downward departure motion, finding there were substantial and compelling reasons to depart from mandatory sentence under Jessica's Law. Jolly was sentenced to 165 months' imprisonment, the aggravated sentence on the sentencing grid.
The resentencing judge stated:
“[T]he court notes that [C.E.], there's no doubt she has gone through more than any child should ever have to go through, and she has been subject to acts committed by this defendant and by another defendant that she, certainly, never should have been subject to. And it is—I don't think any sentence imposed by this court can—can ever make it right with [C.E.], what she has gone through. However, this court must consider whether or not there are substantial and compelling reasons to grant a departure from the Jessica's Law sentence, which is life imprisonment without the chance for parole for 25 years.
“The Court has considered the arguments made by the defendant and the arguments made by the State, and the Court is going to find in this case that there are substantial and compelling reasons to grant a departure to a guideline sentence in this case. Those reasons are that the defendant has—the first is, the defendant's lack of criminal history. In looking at the defendant's criminal history worksheet, apparently, he has been convicted of no criminal offenses in the past, and the Court does believe that is significant. And one of the reasons is the Court—that does lead the Court to believe that, at least—well, the defendant was 43 years old when the offenses were committed, and that would lead the Court to believe that the defendant has had the ability in the past, anyway, to control his actions, which would hopefully make it less likely for the defendant to re-offend in the future since he has demonstrated some ability to control himself in the past.
“Secondly, the defendant did take responsibility for his actions in this case. He did enter a plea. I can't recall if it was guilty or no contest, but the defendant did accept responsibility for his actions, and the [victim] was not required to testify at trial and was not subject to, you know, further humiliation or embarrassment or further traumatized by that, by being required to testify at trial.
“The Court has reviewed Dr. Barnett's report and the Court does take into consideration the State's statement that the defendant was not fully—was not completely truthful with him. But the court did note some other matters in Dr. Barnett's report, and that was that the defendant had been employed for some time at the time of this offense. Dr. Barnett did not find any evidence of the defendant having any anti-social behaviors. The defendant did not have any previous history of being molested himself, which I think we all know can be significant because frequently those who have been sexually molested are more apt to re-offend. Dr. Barnett found that the defendant did not have any history of mental illness and he did not diagnose him with any psychological disorder. The Court does believe that for those reasons the defendant would present less of a danger to society than an individual that did have a long history of mental illness or had anti-social behaviors. Dr. Barnett found that the defendant did not possess the traits of a pedophile or of a sexual predator. So, for those reasons, the Court is going to find in this case that there are substantial and compelling reasons to grant the defendant the departure in this case to a guideline sentence.”
On the resentencing journal entry, the district court listed three reasons for the departure:
“1. Defendant has no criminal history.
“2. Defendant took responsibility for his actions by pleading guilty and victim was not required to testify at trial.
“3. Dr. Barnett found no evidence of anti-social behaviors, previous molestation history, mental illness; therefor [ sic ] Defendant less of a danger to society. Defendant does not possess traits as a pedophile or sexual predator.”
The State timely appeals.
“In Jessica's Law and non-Jessica's Law sentencing departure cases: (1) When the question is whether the record supported a sentencing judge's particular articulated reasons for departure, an appellate court's standard of review is substantial competent evidence; (2) when the question is whether a sentencing judge correctly concluded that particular mitigating factors constituted substantial and compelling reasons to depart in a particular case, including whether those mitigating factors outweighed any aggravating factors if such a balance is necessary, the appellate standard of review is abuse of discretion; (3) when the question is whether a particular mitigating or aggravating factor can ever, as a matter of law, be substantial and compelling in any case, the appellate standard of review is de novo; and (4) when the challenge focuses on the extent of a durational departure, the appellate standard of review is abuse of discretion, measuring whether the departure is consistent with the purposes of the guidelines and proportionate to the crime severity and the defendant's criminal history.” State v. Spencer, 291 Kan. 796, Syl. ¶ 1, 248 P.3d 256 (2011).
Substantial and Compelling Reasons for a Departure Sentence
On appeal, the State claims there was not substantial competent evidence in the record to support a sentencing departure and that the factors cited by the sentencing court do not constitute substantial and compelling reasons to support the departure sentence.
The standard of review is whether the sentencing court abused its discretion in granting the departure motion and finding there were substantial and compelling reasons for the departure sentence. This court reviews whether the sentencing court abused its discretion in concluding that the particular factors constituted substantial and compelling reasons to depart. Spencer, 291 Kan. at 807. Judicial discretion is abused when no reasonable person would take the view adopted by the district judge. State v. Sellers, 292 Kan. 117, 124,253 P.3d 20 (2011).
Criminal History
K.S.A. 21–4643(d)(1)–(6) gives a nonexclusive list of mitigating factors the sentencing judge may consider in determining whether substantial and compelling reasons for departure exist: (1) the defendant has no significant criminal history; (2) the crime was committed while the defendant was under the influence of extreme mental or emotional disturbances; (3) the victim was an accomplice, and the defendant's participation was relatively minor; (4) the defendant acted under extreme distress or under the substantial domination of another person; (5) the defendant's capacity to appreciate the criminality of his or her conduct or conform such conduct to the requirements of the law was substantially impaired; and (6) the defendant's age at the time of the crime.
Here, the sentencing court listed Jolly's lack of a criminal history as a statutory factor for granting the departure sentence. None of the other statutory factors apply to the facts of Jolly's case. The sentencing court found the lack of a criminal history “significant” because “it demonstrated Jolly's past ability to control his actions.” The court also stated that it would “hopefully make it less likely for [Jolly] to re-offend in the future.” There is no evidence in the record on appeal that Jolly controlled his actions in the past, and there is certainly no evidence of what he will or will not do in the future. The evidence is only that he did not have a criminal history. We find that the lack of criminal history is a factor to be considered but it alone is not a substantial and compelling reason for a downward departure sentence, especially because of the facts of this case.
Dr. Barnett's Report
The sentencing court also articulated two nonstatutory factors it considered in granting the departure sentence. One of those factors was that Dr. Barnett's evaluation indicated that Jolly was not a risk to the community.
The State claims: (1) There was not substantial competent evidence in the record to justify the district court's departure sentence; and (2) the sentencing court abused its discretion in its determination that there were substantial and compelling reasons to depart. An appellate court applies “a broad abuse of discretion standard because this issue involves the district court's consideration and weighing of mitigating circumstances.” State v.. Thomas, 288 Kan. 157, 164, 199 P.3d 1265 (2009). The court articulated what it considered as mitigating circumstances to justify the downward departure sentence but failed to balance those against the horrific aggravating circumstances of this case.
Under Jessica's Law, Jolly's prescribed sentence was life imprisonment with a mandatory minimum of 25 years. See K.S.A. 21–4643(a)(1), (d). However, at the time of Jolly's offense, the statute allowed for a departure sentence if the defendant is a first-time offender and the sentencing court finds substantial and compelling mitigating factors justifying a deviation from the presumptive sentence. K.S.A. 21–4643(d); see State v. Ballard, 289 Kan. 1000, 1008, 218 P.3d 432 (2009); State v. Gracey, 288 Kan. 252, 259, 200 P.3d 1275 (2009).
“Substantial” means something real, not imagined; something with substance, not ephemeral. “Compelling” means that the circumstances of the case force the sentencing court “to abandon the status quo and to venture beyond the sentence that it would ordinarily impose.” State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008).
This crime took place on July 15, 2007. Jolly signed a statement admitting the rape. However, on June 30, 2008, Dr. Barnett did an evaluation of Jolly at the request of his lawyer. All of the information that formed the basis of Dr. Barnett's evaluation was what Jolly told him. Jolly was asked by Dr. Barnett to describe his crime, to which Jolly said:
“They said I had sex with an underage girl (age 13). When I was interviewed by the police, I told them I didn't do it. I admitted touching her breasts and vagina. I didn't have intercourse with her. I admitted the touching occurred one time. The victim's grandmother heard us talking on the phone and called the police. I pled guilty to one count of rape. I am awaiting sentencing.”
Jolly's description of the crime is totally false. In his testimony at the original sentencing, Dr. Barnett stated, “Mr. Jolly does not appear to have a history of sexual offending, of being accused or suspected of molesting adolescents or children.” Dr. Barnett also testified, “It's impossible for me to know in this case what impact it had on the victim. That's really not my charge in this case.” Dr. Barnett's conclusions were based on Jolly's description of his “crime,” other information supplied by Jolly, and no consideration of what his crime did to C.E. Dr. Barnett never saw the police report. Dr. Barnett provided the following answers during testimony at the sentencing hearing:
“Q. Would it impact your recommendations today to know that the defendant admitted to Investigator Meek and through his written statement that he had had intercourse and had penetrated this 12–year–old girl?
“A. I'd have to look at the full picture, all of the data and then 1 could give you a more informed opinion.
“Q. Would it impact your decision to know that the defendant admitted that he penetrated the victim with his penis and his fingers?
“A. Probably. But, like I say, I don't have that information.”
Because Dr. Barnett did not have critical information, Dr. Barnett did not have “the full picture” when he wrote his report. Dr. Barnett's lack of information casts doubt on his entire evaluation. The resentencing court erred in using an inaccurate and incomplete report as the basis for the departure sentence. Dr. Barnett's report does not satisfy the requirement of a substantial and compelling reason for the departure.
Taking Responsibility for the Crime
The resentencing court also stated that one of the nonstatutory reasons for granting the departure motion was that Jolly took responsibility for his actions. He pled guilty to rape in exchange for the dismissal of the indecent liberties charge. He also saved himself from a trial. When he described his crime for Dr. Barnett, he denied that he had raped C.E. The sentencing court emphasized that Jolly had taken responsibility for his actions. In Jolly's written statement on July 17, 2007, he admitted to raping C.E., stating that he
“discovered that her heman [ sic ] was no longer intacked [ sic ], tell me that other things had happened to her in the past. It was about this point where my mindset started changing from clinical exploration to more the lover attitude to make her feel good. Cuz of what she was doing gave me the idea she liked it. I continue[d] the touching and feeling until my mindset changed again to more of the serious lover, wanting more. And started rubbing my penis against her to acctive [ sic ] an erection and basic penetration occured [ sic ].”
At Jolly's original sentencing, he did not take responsibility for his crime. When the sentencing court asked if he wanted to make a statement, he said:
“W. JOLLY, IV: I really don't know how much good it will do. But, through all of this I have been honest, cooperative, polite, and even patient and tolerant. All the virtues of a good citizen. Yet, where does it get me? What has it done for me? It has had me locked up, away from my family for over a year. It has had my face busted, my jaw busted, scarred and disfigured now for the rest of my life, also, both physically and emotionally, when all—in the beginning, that all I wanted to do was to help. I agree that things went way beyond where they should have and, yes, that is my fault and I'll apologize profusely on that. But that does not—for somebody that has never been in trouble at all over history, through the years on that, to literally, as a lack of a better way to do it, kill him in a long torturous [ sic ] death by being locked up in prison for the rest of my life on that. And I'll continue to apologize, but to me, I was—there was nothing, as a lack of a better way to put it, criminal intent, when all that I was wanting to do was to help someone that I thought needed help.
“THE COURT: And how were you helping her?
“W. JOLLY, IV: I wanted to know how bad the extensive damage to prior—or alleged prior had done to her on there in order to see if she needed serious counseling, or just me being a parent and being there for her until she is ready. I guess, like I say, I'll agree that things went beyond what—the original intent, but that does not discount that fact that I was trying to help someone. If I could take all of this back, yeah, I would. That's—it's all that I can do.
“I apologize to the courts for putting everybody through all of this, also. I just want to get my life back on track, back to my family. Yes, I asked for leniency to sentence on this, because I've never done anything wrong on there. I just need to be back with my wife and my family, which are still with me, too.
“There are programs available in the community for this, also. So, it don't necessarily mean that I would have to go to prison for these programs. And I still ask humbly for extreme leniency for someone who just wanted to help.” (Emphasis added.)
Jolly's statements were those of a person justifying his actions, not of one who was accepting responsibility for the damage he had done.
At the resentencing hearing, the court again gave Jolly an opportunity to make a statement or present evidence. His statement was:
“I stand here right now humbled and broken. Everything that I have has been taken away from me: My life, all that was meant and makes me who I am, my liberties, my freedoms.
“ I tried to do something good, and everything went bad. I have tried to continue while inside to help myself understand what happened, and I can just—I feel abandoned and hurt and alone. There is really not anymore words that I can say.
“I've apologized to who I need apologize to. I have made my re-my reconciliations with the people that I believe needed to be, as best I can. The rest is up to you.
“So, again, I apologize for all these proceedings and the trouble it's put a lot of people through. So, the rest is up to you. I thank you.” (Emphasis added.)
Jolly's statement was all about how his crime has adversely affected him. He did not accept responsibility for what he did. He said, “I've never done anything wrong.” He apologized to the court for its trouble. He did not apologize for raping C.E. The sentencing court abused its discretion by finding that Jolly took responsibility for the rape.
In addition, we find that the aggravating factors in this case clearly outweigh Jolly's lack of a criminal record. He was a 43–year–old male who assumed the role of a lover with a 12–year–old girl. He was a trusted adult family friend; she was a child. He knew of C.E.'s sexual abuse by her mother's boyfriend 1 month earlier and he took advantage of her vulnerability.
There were no substantial and compelling reasons for granting a departure sentence. We reverse and remand this case to the district court for resentencing.
Reversed and remanded for resentencing.
* * *
BUSER, J., concurring.
I concur in the majority opinion but write separately to note an uncontroverted fact discussed at the resentencing hearing on July 1, 2011. I also address points raised in the dissent, especially my colleague's doubt whether we, as an appellate court, may consider aggravating circumstances.
With respect to the uncontroverted fact, Jolly's counsel, the prosecutor, and R.E., the victim's grandmother, all discussed that C .E. was emotionally or psychologically impaired from the sexual assaults. Jolly's counsel informed the district court that “[C.E.] lacks some level of normal functioning. She doesn't function at high level, let's put it that way. She is not all there psychologically.”
The prosecutor referred to C.E.'s impairment while discussing Jolly's statement to the investigating officer, which included his admission that he had “known [C.E] since she was an infant.” The investigating officer's report noted this impairment and Jolly's awareness of it:
“[Jolly] advised that he was on his bed and [C.E.] laid beside him. [Jolly] stated that he was curious how desensitized [C.E.] was from a previous sexual assault that she was the victim of approximately one month ago. [Jolly] stated that he was only trying to see if [C.E] would have a reaction as he started touching her on her side. [Jolly] advised that [C.E.] did not move so he started to touch her on her breasts first on top of her clothing, then underneath. [Jolly] advised that [C.E.] still did not have a reaction other than the ‘million mile stare.’ “
The State had proffered both this report and Jolly's own written account of the incident, which is quoted by the majority opinion, as the factual basis for the plea. At resentencing the prosecutor made the following argument based on the report:
“And [Jolly] described something that is really typical of [C.E .], that million mile stare. And the State would suggest that that's her coping ability to deal with circumstances, her disassociation from the events that are occurring that hurt her. So [Jolly] said that, because of her lack of reaction he realized that she probably had been more seriously abused in the previous case, but yet he continued to caress her and push things a little bit more by touching her bare skin and touching her breasts.
“Your Honor, this girl, who was 12 years old at the time, has experienced circumstances that no one should ever have to go through, and it has affected her tremendously. There are certain things that [C.E.] will probably never recover from, and I think that [R.E.] sums it up in the presentence report when she says that [Jolly] knew [C.E.] was vulnerable because of the prior sexual molestation and he raped her anyway. And both [R.E.] and [C.E.] felt that that made what he did twice as bad because he knew how vulnerable she was and took advantage of it anyway. And [C.E.] was already in a position of not trusting people, understandably so, and then this family friend violates what little trust she has remaining by sexually assaulting her. So, certainly, in the State's mind the facts in this case would constitute aggravating circumstances here.”
R.E. made a victim statement at resentencing. She said Jolly
“blatantly knew everything that was happening to [C.E.]'s life and chose that moment to rape her.... [C.E.] will never be the same. She is not a normal, you know, 16–year–old girl.... She will never be the same. I'm hoping I have an 18, 19–year–old girl that would go to college, live on her own. It's not ever going to happen with [C.E.]. She will be with me forever, because she can't function. She's just been traumatized too much, repeatedly.
In sum, there was a coldly cruel aspect to Jolly's sexual abuse. He was clinical in his testing of C.E. as an object subject to stimulus-response. Both as an indication of C.E.'s vulnerability and as a measure of the damage inflicted upon her, the uncontroverted statements regarding her emotional or psychological impairment only increase the severity of this crime.
The dissent questions whether courts may consider such aggravating circumstances in Jessica's Law departure cases. I agree the term is not statutory. As our Supreme Court noted in a case quoted by the dissent, Jessica's Law permits only mitigation of the mandatory minimum sentence, not aggravation of it. See State v. Spencer, 291 Kan. 796, 809, 248 P.3d 256 (2011).
Yet our Supreme Court has repeatedly mentioned aggravating circumstances, including in the most recent case cited by the dissent, State v. Baptist, 294 Kan. 728, 734, 280 P.3d 210 (2012): “In exercising this discretion [to grant or deny a motion to depart from a Jessica's Law sentence], a district court first reviews the mitigating circumstances and then weighs them against any aggravating circumstances, ultimately determining whether substantial and compelling reasons warrant a departure. [Citations omitted.]” (Emphasis added.)
We are “duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position.” Tyler v. Goodyear Tire & Rubber Co., 43 Kan.App.2d 386, 391, 224 P.3d 1197 (2010). I see no indication our Supreme Court is departing from its position. I also believe our Supreme Court has applied aggravating circumstances in Jessica's Law departure cases, contrary to the dissent's suggestion.
In Spencer, for example, our Supreme Court balanced mitigating circumstances against other evidence when determining whether the district court had abused its discretion in departing from a Jessica's Law sentence. One example was the defendant's lack of criminal history:
“Despite the lack of a criminal record being a listed Jessica's Law mitigator, the State makes an accurate and sensible assessment of this factor. The only evidence before the court ... was that [defendant] had engaged in lewd fondling of his granddaughter for years. No reasonable person world regard the fact that he had never been caught and prosecuted before as a substantial and compelling reason to grant him a departure from Jessica's Law.” 291 Kan. at 814.
This passage illustrates the rationale for explicitly considering aggravating circumstances, at least when departing. When a district court “departs from such mandatory minimum term of imprisonment,” it must “state on the record ... the substantial and compelling reasons for the departure.” K.S.A. 21–4643(d). But a rational person would consider reasons for departure in context before deciding whether they were substantial and compelling. As Spencer shows, this context includes the facts logically bearing on the mitigating circumstance itself.
Our Supreme Court has further shown its willingness to consider the case facts generally, which only makes sense. I do not see how we can decide whether the district court abused its discretion by acting on certain mitigating circumstances unless we can consider all the circumstances of the case. We might label these “aggravating circumstances” or we might not, but they are in any event the facts of the case before the district court.
In a case where departure was denied, State v. Roberts, 293 Kan. 1093, 1098, 272 P.3d 24 (2012), the district court “acknowledged that [defendant] has no criminal history, but it also found the 12–year–old victim and her family were harmed by [defendant's] actions. It also found that any alleged role the victim played could have been easily addressed in a different manner given the disparity in age.” Our Supreme Court approved this approach, stating the “analysis demonstrates the district court complied with its duty to review both the mitigating and aggravating circumstances.” 293 Kan. at 1098.
In State v. Hyche, 293 Kan. 602, 606, 265 P.3d 1172 (2011), similarly, the district court not only “expressly reviewed the mitigators, [it] also considered valid aggravators before denying [defendant]'s departure motion. These included the nature of the relationship between the victim and the perpetrator, the vulnerability of the victim, and the special type of harm the crime caused to the familial relationship.” Our Supreme Court approved the district court's treatment of the aggravating circumstances, noting it had affirmed denials of departure motions before on such bases. 293 Kan. at 606. “Under these circumstances,” our Supreme Court concluded that “the district court did not abuse its discretion.” 293 Kan. at 606.
My concern here is that the district court, though it was obliged to state on the record the substantial and compelling reasons for its departure, made no mention of having considered the aggravating circumstances. I am not convinced it understood that the mitigating circumstances could be substantial and compelling only when weighed against the aggravating circumstances of this particular case. Since a failure to apply the correct legal standard is itself an abuse of discretion, I would hold the district court abused its discretion on this basis alone. See State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15(2009).
Even if the district court applied the correct legal standard, I still believe it abused its discretion. As noted in the majority opinion, the mitigating circumstances were ephemeral when considered in context, especially Dr. Barnett's report and Jolly's acceptance of responsibility. Finally, the majority's analysis does not reweigh the evidence but asks whether a reasonable person could find the mitigating circumstances substantial and compelling reasons to depart. I believe a reasonable person given the disturbing circumstances of this case could not.
* * *
McANANY, J., dissenting.
As demonstrated in the majority and concurring opinions, this case presents terrible facts. The nature of the crime and the circumstances surrounding it offend us all. But I am reminded of the ancient adage in the law: bad facts make bad law. I am concerned that this may be what we are making today. Because of the limitations the law imposes on us in reviewing the district court's decision in this matter, I am required to respectfully dissent.
The majority discusses three departure factors considered by the district court: criminal history, Dr. Barnett's report, and taking responsibility for the crime.
Criminal History
With regard to William Jolly's criminal history, the majority notes that there is no evidence Jolly controlled his actions in the past or that he will do so in the future. This, of course, would require Jolly to prove a negative regarding his past actions. The fact is that Jolly had never before been convicted of a crime. I agree that this factor alone is not a substantial and compelling reason in and of itself to warrant a departure. But here, the district court was not confronted with a situation like that in State v. Spencer, 291 Kan. 796, 248 P.3d 256 (2011), in which the defendant had no history of prior crimes, but the evidence established that he had been abusing his granddaughter for many years. We have no indication that Jolly's conduct was an ongoing course of conduct. The legislature specifically identified as a mitigating factor the fact that the defendant has no significant criminal history. See K.S.A. 21–4643(d)(l). Here, the evidence is that Jolly had no prior convictions at all.
In considering Jolly's lack of past crimes, the district court noted that Jolly was age 43 when this crime was committed. Jolly's age, coupled with his lack of a criminal history, led the district court to conclude that Jolly's ability to regulate his conduct in the past is some indication of his ability to regulate his conduct in the future, making him less likely to reoffend. When a defendant's criminal history is used as a substantial and compelling reason for departure, “the focus of the sentencing court's inquiry is not the defendant's general criminal history, but specifically what that history says about the defendant's ... future dangerousness.” State v. Howes, 22 Kan.App.2d 837, 840, 923 P.2d 1064 (1996). I think Jolly's lack of any criminal history was a proper mitigating factor for the district court to consider.
Dr. Bamett's Opinions
The majority's comment about the lack of evidence regarding Jolly's future conduct leads to the second factor considered by the district court: the opinions of Dr. Barnett. The majority concludes that “Dr. Barnett's lack of information casts doubt on his entire evaluation.” State v. Jolly, No. 106,680, unpublished opinion filed this date, slip op. at 9.
There was no objection to Dr. Bamett's qualifications to testify as an expert. There was no objection that Dr. Bamett lacked a proper foundation for his opinions. There was no objection to Dr. Bamett's written report being admitted into evidence.
There is no doubt that Jolly provided some inaccurate or incomplete information to Dr. Barnett. But the district court took those inaccuracies into account in weighing Dr. Barnett's testimony. The majority rejects the district court's conclusion regarding the weight that should be given Dr. Barnett's testimony. In doing so, the majority strays into an area we are not permitted to enter. See State v. Johnson, 289 Kan. 870, 888, 218 P.3d 46 (2009). We are not permitted to reweigh the evidence presented to the district court.
The district court found that Jolly had been employed at the time of his crime, a finding I consider rather insignificant. Nevertheless, the judge also noted:
“Dr. Barrett did not find any evidence of the defendant having any anti-social behaviors. The defendant did not have any previous history of being molested himself, which I think we all know can be significant because frequently those who have been sexually molested are more apt to re-offend. Dr. Barnett found that the defendant did not have any history of mental illness and he did not diagnose him with any psychological disorder. The court does believe that for those reasons the defendant would present less of a danger to society than an individual that did have a long history of mental illness or had antisocial behaviors. Dr. Barnett found that the defendant did not possess the traits of a pedophile or of a sexual predator.”
The State does not contest any of these findings by the district court, and we find no evidence in the record to contradict any of these findings. “[I]n [State v. Favela, 259 Kan. 215, 233–34, 911 P.2d 792 (1996) ], we acknowledged that one of the legislative purposes of the sentencing guidelines was to protect public safety.” State v. Martin, 285 Kan. 735, 745, 175 P.3d 832 (2008). The district court's findings based upon the unchallenged portions of Dr. Bamett's testimony are directed to the issue of public safety. I would not be drawn into reweighing the significance of an expert's uncontradicted testimony, a function reserved for the district court and not us.
Taking Responsibility
With regard to taking responsibility for the crime, the majority notes Jolly's many protestations of innocence. But the district court confined its analysis to the fact that Jolly pled guilty to the crime and avoided his young victim having to testify in a public trial. The district court heard and obviously rejected Jolly's prior protestations of innocence.
Aggravating Factors
Finally, the majority states: “[W]e find that the aggravating factors in this case clearly outweigh Jolly's lack of a criminal record.” Slip op. at 11. First, I think it is inappropriate for us to be making any such findings as an appellate court. That function is reserved for the district court. Second, I think it is inappropriate for us to weigh aggravating factors against mitigating factors. To the extent such weighing of competing factors is appropriate, that also is a function of the district court, not us. Third, I question whether the consideration of aggravating factors is even appropriate.
As the majority notes, under Jessica's Law at the time of Jolly's offense, the legislature provided for a departure from a sentence of life imprisonment with a mandatory minimum of 25 years “if the defendant is a first-time offender and the sentencing court finds substantial and compelling mitigating factors justifying a deviation from the presumptive sentence. K.S.A. 21–4643(d).” Slip op at 8. The legislature made no provision for the weighing of competing aggravating factors.
Jolly was resentenced on July 1, 2011. About 3 months earlier, a unanimous Kansas Supreme Court handed down its decision in Spencer . In Spencer, the court considered both a departure from a guideline sentence and a departure from the mandatory life–with–25–year–minimum sentence under Jessica's Law. Our statute authorizing a departure from a guideline sentence, K.S.A. 21–4716, refers to mitigating and aggravating factors the sentencing court may take into account. Jessica's Law, on the other hand, does not. The court considered the interplay of the aggravating and mitigating factors in K.S.A. 21–4716 with the mitigating factors found in Jessica's Law.
“[T]he State sees significance in the requirement under Jessica's Law that a sentencing judge evaluate only mitigators before departing. It points out that K.S.A. 21–4716, again, is broader in scope, permitting a sentencing judge to evaluate both mitigators and aggravators before a decision to depart.” 291 Kan. at 808.
The Supreme Court responded, stating that “the plain language of the statute tells us what we need to know about the legislature's intentions.” 291 Kan. 809.
“[N]o balance between mitigators and aggravators such as that implied in K.S.A. 21–4716 ... is necessary when Jessica's Law is the starting point. The only way for Jessica's Law to operate is to intensify, if not lengthen, a sentence. It makes 25 years a mandatory minimuim, unless certain mitigators justify a departure. Simply put, there is nowhere to go but to a less-intense place. Under K.S.A, 21–4716, in contrast, departure either upward or downward is possible.” 291 Kan. at 809.
I disagree with the concurring opinion's characterization of Spencer as sanctioning the weighing of aggravating factors against the statutory mitigating factors. Such a view contradicts what I consider to be the clearly expressed language of the opinion. Spencer claimed as a mitigating factor his lack of a criminal history. The court noted that the only reason he had no criminal history is the fact that his crimes went undetected for so long. I do not consider this an aggravating factor, but merely a rejection of a claimed mitigating factor.
Twelve months after Jolly was resentenced, the Kansas Supreme Court issued on the same day opinions in State v. Baptist, 294 Kan. 728, 280 P.3d 210 (2012), and State v. Salinas, 294 Kan. 743, 280 P.3d 221 (2012). In each case the Supreme Court upheld the district court's denial of a departure motion in a Jessica's Law case.
In Baptist, the Supreme Court cited State v. Harsh, 293 Kan. 585, 265 P.3d 1161 (2011), for the proposition that in a Jessica's Law case the district court weighs mitigating circumstances against aggravating circumstances in deciding whether to depart. 294 Kan. at 734. A similar pronouncement is found in Salinas. 294 Kan. at 747. But in my reading of Harsh, I find no authority for weighing aggravating factors. In fact, I find no mention of aggravating factors at all, other than a reference to State v. Ortega–Cadelan, 287 Kan. 157, 162–66, 194 P.3d 1195 (2008), which is described as “affirming district court's denial of departure when the extent and impact of defendant's crime outweighed the mitigating factors.” Harsh, 293 Kan. at 588. But when I turn to Ortega–Cadelan, I find no discussion whatsoever regarding weighing mitigating factors against aggravating factors in a Jessica's Law case. In fact, the Supreme Court held: “[W]e conclude the sentencing court properly considered all mitigating circumstances and did not abuse its discretion when it concluded those circumstances were not substantial and compelling reasons to impose a departure sentence.” 287 Kan. at 158.
In Baptist, the Supreme Court also relied on State v. Plotner, 290 Kan. 774, 780–81, 235 P.3d 417 (2010). In Plotner, the court confined its analysis to whether the district court abused its discretion in not finding seven different mitigating factors were substantial and compelling reasons to depart from a Jessica's Law sentence. The Supreme Court noted the district court's observation at sentencing about the reprehensible nature of Plotner's crimes. But in Plotner, there was no claim that the district court abused its discretion in considering aggravating factors, and the Supreme Court did not analyze the issue.
In Salinas, issued the same day as Baptist, the court relied on Harsh and Plotner as well. But it also cited State v. Spotts, 288 Kan. 650, 655–56, 206 P.3d 510 (2009), another Jessica's Law case. There was no analysis in Spotts of the process of weighing aggravating factors against mitigating factors. In fact, the court described the process as a two-step procedure. “First, the judge reviews mitigating circumstances. Second, the judge determines if there are substantial and compelling reasons for a departure.” 288 Kan. at 655.
In Spotts, the defendant argued various mitigating factors at sentencing. The State essentially argued that these were not truly mitigating factors. For example, Spotts argued that he had no prior sexually motivated convictions, but the State argued that Spotts forgot to mention his substantial criminal history with numerous prior person felony convictions. Spotts also argued that the sexual acts were not induced by force or threats, suggesting that it was all consensual, but the State countered that Spotts' victim was 12 years old. Spotts argued that he was under medication and was not thinking right at the time of the crime, but the State reminded the court that Spotts was taking medication for anger control, stress, and to help him sleep. I view these not as aggravating factors but simply evidence the State introduced to show that Spotts' claimed mitigating factors were, in fact, not mitigating factors.
The concurring opinion relies on State v. Roberts, 293 Kan. 1093, 1098, 272 P.3d 24 (2012), as authority for considering aggravating factors. Roberts relies on State v. Ballard, 289 Kan. 1000, 218 P.3d 432 (2009). But the holding in Ballard was “that the mitigating circumstances were not substantial and compelling to justify a departure to probation.” (Emphasis added.) 289 Kan. at 1009.
Whatever the source for this notion of weighing aggravating factors against mitigating factors, it certainly cannot be found in the statute, which clearly expresses the intent of the legislature. In any event, if there is any weighing to be done, it should be done by the district court and not by us.
The majority recognizes that whether the factors considered by the district court were substantial and compelling reasons to depart is within the sound discretion of the district court. Since the enactment of Jessica's Law, the cases are legion in which an appellate court found no abuse of discretion in denying a departure from a Jessica's Law sentence. Here, we have the opposite. The district court found reason to depart. There are plenty of judges who, in the exercise of their sound discretion, would have denied Jolly's motion, and we would have upheld their decision based upon no showing of an abuse of discretion. Applying that same standard to the case now before us, I would not substitute my opinion on what sentence should have been imposed for that of the district court. I would hold that the district court did not abuse its discretion in imposing a departure sentence.