State v. Heit

State of Kansas, Appellee, v. Douglas Michael Heit, Appellant.

No. 122, 366

Court of Appeals of Kansas

June 25, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Finney District Court; Michael L. Quint, judge.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Warner, P.J., Buser and Cline, JJ.

MEMORANDUM OPINION

PER CURIAM

Douglas Michael Heit appeals the Finney County District Court's imposition of concurrent life sentences for two convictions of aggravated indecent liberties with a child. Heit raises two issues. First, he contends the district court abused its discretion by denying his motions for a sentencing departure. Second, he claims the district court erred by failing to make adequate findings when ruling on his constitutional challenge to lifetime postrelease supervision in this case. Upon our review, we affirm the district court's sentences. But we remand the case with directions to issue a nunc pro tunc order to correct the sentencing journal entry because Heit is not subject to lifetime postrelease supervision.

FACTUAL AND PROCEDURAL BACKGROUND

In 2017, Heit and his wife were interested in becoming foster parents. They contacted the Kansas Department for Children and Families (DCF) to begin the process of becoming foster parents. The Heits were approved, and L.M., an eight-year-old girl, was placed in their care.

Heit was employed as a Garden City police officer. He did not inform DCF that he suffered from posttraumatic stress disorder (PTSD) and alcoholism. His wife later claimed she did not understand the extent of Heit's psychological issues. Heit did not express concerns about having L.M living in the home until shortly before the molestations occurred.

On several occasions in 2018, Heit took L.M. to a rural location and allowed her to drive an off-road sport utility vehicle. As she was driving, Heit placed his hand between her legs and rubbed the vaginal area inside her underwear.

The State charged Heit with six counts of aggravated indecent liberties with a child for his illicit touching of L.M. Prior to trial, Heit and the State entered into a plea agreement wherein Heit would plead no contest to two counts of aggravated indecent liberties with a child. In return, the State would dismiss the remaining counts. Under the agreement, at sentencing, the parties could argue for any sentence permitted under Kansas law. Heit entered no-contest pleas to two counts of aggravated indecent liberties with a child, the district court accepted the pleas, and Heit was found guilty.

Heit's counsel filed two sentencing departure motions. In the first motion, Heit sought a departure from the presumptive off-grid sentences of life imprisonment to sentences on the sentencing grid. In the second motion, he asked for a durational departure to half of the presumptive grid sentence. Heit's counsel also filed a lengthy challenge to the constitutionality of lifetime postrelease supervision under K.S.A. 2018 Supp. 22-3717. The State filed responses opposing the motions.

At sentencing, it was determined that Heit had a criminal history score of I. The State recommended imposition of the presumptive off-grid sentences of life imprisonment with mandatory service of 25 years before parole eligibility. On the other hand, defense counsel argued for a substantial departure to reduce the number of years of incarceration.

In support of his departure motions, Heit's evidence showed that as a Garden City police officer in 2010 he was involved in a shooting. Arriving at the scene of a domestic disturbance, Heit shot but did not kill a man who was stabbing a woman. Consequently, Heit suffered from PTSD. Heit's condition worsened after the assailant's conviction was overturned on appeal and the man later entered a plea to a lesser offense. Heit obtained limited counseling for his condition, and he began to self-medicate by drinking alcohol. The combination of PTSD and alcohol use led to Heit reducing his workload with the police department, and he eventually retired.

Jerrod Steffan, a clinical psychologist who evaluated Heit concluded that he did not have a sexually deviant interest in or preference for minors but that Heit's sexual assaults were the result of PTSD and alcohol abuse. Nevertheless Steffan conceded that Heit's PTSD did not cause him to molest L.M.; the condition merely contributed to the circumstances leading to the sexual assaults. Steffan opined that Heit fell within a lower-than-average risk category for recidivism within the sex offender population. But Steffan acknowledged that Heit's risk of sexual recidivism would be influenced by his ability to avoid alcohol.

Heit also called former coworkers and his ex-wife to testify regarding changes that occurred to Heit's personality after the shooting. Heit's ex-wife and Heit testified regarding his efforts to obtain help for PTSD and alcoholism. Heit testified that he did not believe he was a danger to society, but he acknowledged that he remained in jail because he was afraid that he would begin drinking again. Heit also admitted that he could be a danger to society when he was drinking alcohol.

The district court denied Heit's sentencing departure motions. In denying the departure motions, the district court did not specifically discuss the mitigating factors cited by Heit in the motions. Of note, Heit's counsel did not request that the court make additional findings or address the mitigating factors. The district court denied Heit's motion challenging the constitutionality of lifetime postrelease supervision. The court imposed concurrent off-grid life sentences without the possibility of parole for 25 years (hard 25) for each of Heit's convictions.

Heit appeals his sentences.

DENIAL OF MOTIONS FOR DURATIONAL DEPARTURE SENTENCES

Heit challenges the district court's denial of his durational departure motions. He presents two arguments. First, he contends the district court erred as a matter of law by failing to consider the mitigating factors presented by Heit in support of the departure motions. Second, alternatively he asserts the district court abused its discretion in concluding that the mitigating factors presented by Heit did not constitute a basis for departure. We will consider these arguments individually.

An appellate court reviews a district court's sentencing departure determination for an abuse of discretion. An abuse of discretion occurs when the court bases its decision on an erroneous application of the law, when the court bases its decision on findings unsupported by substantial competent evidence in the record, or when the decision is otherwise arbitrary, fanciful, or unreasonable; in other words, no reasonable person in the position of the district court would have adopted the same position. State v. Powell, 308 Kan. 895, 902-03, 425 P.3d 309 (2018).

K.S.A. 2020 Supp. 21-6627(a)(1) imposes a presumptive life sentence with no possibility of parole for 25 years upon a criminal defendant who is 18 years of age or older and has been convicted of one of the offenses listed in the statute. Aggravated indecent liberties with a child is one of the listed offenses. K.S.A. 2020 Supp. 21-6627(a)(1)(C). Nevertheless, a first-time offender may seek a departure to the sentencing grid. K.S.A. 2020 Supp. 21-6627(d)(1) provides:

"(d)(1) On or after July 1, 2006, for a first time conviction of an offense listed in subsection (a)(1), the sentencing judge shall impose the mandatory minimum term of imprisonment provided by subsection (a), unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure. If the sentencing judge departs from such mandatory minimum term of imprisonment, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure. The departure sentence shall be the sentence pursuant to the revised Kansas sentencing guidelines act, article 68 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto, and, subject to the provisions of K.S.A. 2020 Supp. 21-6818, and amendments thereto, no sentence of a mandatory minimum term of imprisonment shall be imposed hereunder."

A plain reading of K.S.A. 2020 Supp. 21-6627(d) confirms that a district court is not required to articulate reasons for rejecting mitigating factors. Should there be any doubt, our Supreme Court has clarified that "[t]he statute does not require the sentencing judge to explain a decision denying departure." Powell, 308 Kan. 895, Syl. ¶ 6. K.S.A. 2020 Supp. 21-6627(d) requires the district court to make findings on the record only if it departs from the presumptive life sentence. 308 Kan. at 909 ("And while it is laudable for district courts to explain the reasons for their rulings, those explanations are voluntary.").

Heit argues that the district court's ruling constituted legal error because it failed to state that the district court considered his mitigating factors in denying the departure motions. But Powell imposes no such requirement on the district court. Because the district court is not obliged to articulate reasons for denying a departure silence in the record regarding the district court's reasoning does not establish that the district court failed to consider Heit's mitigating factors. Moreover, as the party objecting to the district court's exercise of discretion, Heit bears the burden of affirmatively proving an abuse of that discretion. Powell, 308 Kan. at 911 ("Put simply, since reversal of a denial of a departure motion requires an abuse of discretion, and because the party alleging...