State v. James

386 P.3d 930 (Table)

State of Kansas, Appellee,

v.Ronald W. James, Appellant.

No. 115,324

Court of Appeals of Kansas.

Opinion filed December 23, 2016

Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.

Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Standridge, P.J., Arnold–Burger and Bruns, JJ.

MEMORANDUM OPINION

Per Curiam:

K.S.A. 21–4643(d) permits a sentencing court to depart from a Jessica's Law sentence if, after reviewing mitigating circumstances, the court finds substantial and compelling reasons for departure. Ronald W. James argues that the district court abused its discretion in denying his motion for departure in the following ways: (1) by weighing aggravating circumstances against mitigating circumstances in violation of K.S.A. 21–4643(d) ; (2) by relying on facts not in evidence; and (3) by failing to find that substantial and compelling reasons supported departure. Because the district court's decision followed the required procedure set out in K.S.A. 21–4643 for considering such a departure motion, it based its decision on substantial and competent evidence, and it was within the district court's discretion to decide that the mitigating circumstances did not present substantial and compelling reasons for departure, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The State charged James with rape in violation of K.S.A. 21–3502(a)(2). James waived a jury trial; his bench trial occurred in December 2012.

At the trial, 7–year–old R.J. identified Ronald James as her grandfather. She then testified that, while they were alone in her bedroom, James took down her pants and underwear and then he "stuck his finger in my hole and that hurt." This occurred "just for a minute" and ended when R.J.'s mother began climbing the stairs. R.J. was 5 years old at the time of the alleged rape. R.J.'s mother testified she left R.J. alone with James in the living room for 5 to 10 minutes while the mother and her boyfriend went outside to smoke. When the mother came back inside, R.J. was alone in her bedroom and James was coming back into the living room from R.J.'s bedroom. Later, R.J. told her mother that James "stuck his finger in her hole." The mother called the police. R.J. went to Children's Mercy Hospital for an exam and to Sunflower House for a forensic interview. James testified, and denied all allegations of rape. At the conclusion of the trial, the district court judge found James guilty of rape.

Before sentencing James, the district court addressed James' motion for durational departure. James' counsel reviewed several factors to support the motion. First, James' criminal history was limited to a couple of driving while intoxicated convictions that were more than 20 years old. Second, James had poor health and the hard 25 sentence under Jessica's Law would "likely extend past the probability of [James'] life expectancy." Third, when compared to other sex crimes, the crime in this case was not as severe because there was no violence and no allegations that it had happened before. The State asked the court to deny the motion based on the age of the child and the "position that the defendant was in with her, that's a position of trust...." The district judge said that he understood "and agree[d] with the items the defense raised." But, the district judge also said that the two points raised by the state were "very important." Then, the district judge ordered "a 25–year sentence" with "lifetime parole."

James appealed his sentence. On appeal, James argued, in part, that his sentence was illegal because it was ambiguous. State v. James , No. 110,146, 2014 WL 5312918, at *1 (Kan. App. 2014) (unpublished opinion), rev. denied 302 Kan. 1016 (2015). The State conceded that the sentence was illegal because it was ambiguous. The Court of Appeals held that "the district court likely meant to impose the presumptive sentence of imprisonment for life with a mandatory minimum term of not less than 25 years" but "this was not explicitly stated on the record." 2014 WL 5312918, at *11. So, the Court of Appeals remanded the case for resentencing. 2014 WL 5312918, at *11. James also argued that the district court erred in denying his motion for departure. The Court of Appeals found that, based on the record, it could not "tell whether the district court ever actually denied James' motion for departure." 2014 WL 5312918, at *12. The Court of Appeals also remanded on this issue, ordering the district court to clearly rule on the motion for departure. 2014 WL 5312918, at *12.

On remand, the State's attorney reviewed the mitigating factors that James made in his motion to depart: limited criminal history, age, and the degree of harm. The State asked the district court to consider the motion with State v. Jolly , 301 Kan. 313, 342 P.3d 935 (2015), in mind. The State argues Jolly directs courts to "consider the mitigating factors only first without weighing them against any aggravating factors and then consider other circumstances in the case that [courts] see fit to consider." The State also asked the judge to keep in mind R.J.'s young age and the fact that she is James' granddaughter. The district judge said that he understood the mitigating factors—that James' prior convictions were very old, that James had health problems, and that there was less harm than in normal sexual misconduct cases. But, the district judge reiterated his concerns regarding R.J.'s young age and "breach of trust" that occurred due to the fact that James is R.J.'s grandfather. The district judge then stated, "while I certainly understand there are certain mitigating factors, the other circumstances that this court considers requires—not requires—but based on those, I do specifically deny his motion for a durational departure."

James appealed.

ANALYSIS

The district court properly adhered to the procedure in K.S.A. 21–4643(d) in considering James departure motion.

James' first argument is that the district court violated the procedures of K.S.A. 21–4643(d) by weighing aggravating factors against mitigating factors when denying James' motion for departure.

When reviewing a district court's ruling on a motion for departure, the appellate court applies the abuse of discretion standard. Jolly , 301 Kan. at 324. " ‘A district court abuses its discretion when: (1) no reasonable person would take the view adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based.’ " 301 Kan. at 325 (quoting State v. Smith , 299 Kan. 962, 970, 327 P.3d 441 [2014] ).

K.S.A. 21–4643(a)(1)(B) requires a mandatory minimum term of imprisonment of not less than 25 years for an offender over the age of 18 who has sexual intercourse with a child under the age of 14. However, a sentencing judge may depart from this sentence if the judge "finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure." K.S.A. 21–4643(d). If a "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." K.S.A. 21–4643(d).

For a period of time, courts considering departures in Jessica's Law sentencing were weighing aggravating factors against mitigating factors. See Jolly , 301 Kan. at 322–324 (listing cases in which district courts weighed mitigating and aggravating factors in this situation). In Jolly , the Kansas Supreme Court held that K.S.A. 21–4643(d) forbade this type of weighing analysis. The Jolly court noted that the plain language of the statute "instructs the sentencing court to conduct a review of the mitigating circumstances without balancing them against the aggravating ones." 301 Kan. at 322.

After considering mitigating circumstances, the second step of the Jolly analysis is determining whether the mitigating circumstances rise to the level of being substantial and compelling reasons for departure. 301 Kan. at 323. Although sentencing courts cannot weigh aggravating factors against mitigating ones, "the facts of the case—including any egregious ones—are essential for a judge to consider in deciding if a departure is warranted based on substantial and compelling reasons." 301 Kan. at 323–24. Thus, the sentencing judge can consider "information that reasonably might bear on the proper sentence for a particular defendant, given the crime committed, including the manner or way in which an offender carried out the crime. This includes those ‘circumstances inherent in the crime and the prescribed sentence.’ " 301 Kan. at 324 (quoting State v. Florentin , 297 Kan. 594, 598, 303 P.3d 263 [2013] ).

Here, the State, citing Jolly , specifically asked the district court to "consider the mitigating factors only first without weighing them against any aggravating factors and then consider other circumstances in the case that you see fit to consider." The district court first considered all of the mitigating factors raised by James. The district court judge then stated that he was done considering the mitigating factors and "as I am allowed I hope to also consider the other circumstances." Then, the district judge stated that he was concerned with the fact that James was R.J.'s grandfather, there was a breach of trust, and the young age of the victim. Based on these "other circumstances" the court denied James' motion for departure.

The State argues that "[t]he district court followed precisely the standards set forth by statute and Jolly ." James cites State v. Albanil–Alvarado , No. 111,802, 2015 WL 5311922 (Kan. App. 2015) (unpublished opinion), as authority that the district court did not follow the appropriate procedure. In Albanil–Alvarado , this court found that the district court abused its discretion by...