State v. McPhie

539 P.3d 1058 (Table)

STATE of Kansas, Appellee,

v.CJ Lonnie MCPHIE, Appellant.

No. 125,519

Court of Appeals of Kansas.

Opinion Filed December 15, 2023

MEMORANDUM OPINION

Per Curiam:

C.J. Lonnie McPhie pleaded guilty to a single count of aggravated indecent liberties with a child and, despite his request for a downward durational departure, was sentenced to serve the statutorily provided term of life imprisonment under the Jessica's Law structure. It is the denial of that more lenient sentencing request that McPhie asks us to analyze for an abuse of discretion. He contends such abuse is evidenced by the district court's impermissible (1) consideration of facts not established by admission or trial, (2) inclusion of irrelevant facts, (3) balancing of mitigating and aggravating circumstances, and (4) its failure to give proper weight to McPhie's mitigating circumstances. Following a thorough review of the record we are satisfied the district court did not abuse its discretion in arriving at its sentencing determination and affirm that decision.

FACTUAL AND PROCEDURAL BACKGROUND

McPhie pled guilty to a single count of aggravated indecent liberties with a child in violation of K.S.A. 2018 Supp. 21-5506(b)(3)(A) and (c)(3), for acts perpetrated against the then 12-year-old young daughter of a girlfriend with whom he cohabitated. In exchange for McPhie's plea, the State agreed to dismiss four other charges he faced.

The matter proceeded to a formal plea hearing during which the State requested that the court take judicial notice of the eight-page probable cause affidavit to satisfy the factual basis requirement for the plea. Defense counsel did not object to proceeding in that fashion, nor did they request that the scope of the court's usage of that document be narrowed in any way. The district court took notice of the affidavit, found that it offered a satisfactory factual basis, accepted the plea, and adjudged McPhie guilty.

Between the plea hearing and sentencing, Dr. Adebayo Ajibade, as an expert for the defense, performed a clinical evaluation of McPhie. His written report briefly summarized the probable cause affidavit, set forth measurements concerning McPhie's intelligence, assessed his symptoms of depression and anxiety, offered an estimate of McPhie's recidivism rate, and outlined the doctor's clinical impressions. McPhie offered and the district court admitted Dr. Ajibade's report at the sentencing hearing without objection from the State.

As a first-time offender under Jessica's Law, McPhie was eligible for a departure sentence and initiated his pursuit of that option via a pre-sentencing motion. As justification for his request, McPhie outlined mitigating circumstances which he believed demonstrated that an appropriate prison sentence for him would not exceed 254 months. Specifically, McPhie highlighted his lack of a significant criminal history and alleged that he committed the crime at issue while under the influence of an emotional disturbance. He also asserted that his capacity to appreciate the criminality of his conduct was substantially impaired, that his relatively young age of 34 years was notable, and that his acceptance of responsibility, general non-threatening character, parenting obligations, and willingness to participate in rehabilitative programs were also worthy of consideration.

At sentencing, the parties argued their respective positions concerning the appropriate term of incarceration. The district court was not persuaded that substantial and compelling reasons existed to warrant a durational departure and imposed the standard sentence of life in prison with parole consideration after 25 years.

McPhie now brings his case to us for an assessment of whether the district court's denial of his request for a mitigated sentence amounts to an abuse of discretion.

LEGAL ANALYSIS

The district court did not abuse its discretion in concluding that the mitigating circumstances proffered by McPhie fell short of substantial and compelling reasons to depart from the statutorily mandated term of imprisonment.

McPhie's sentencing challenge essentially consists of a claim that the district court engaged in a series of analytical missteps en route to ultimately, and what McPhie characterizes as erroneously, denying his request for a departure from the statutorily mandated life sentence to a term set forth under the Kansas Sentencing Guidelines Act (KSGA) K.S.A. 2018 Supp. 21-6801 et seq. He takes the position that the district court impermissibly considered details contained within the probable cause affidavit as well as the dismissal of other charges, and unlawfully "balanced" the State's dismissal of other charges against McPhie's assertion that he accepted responsibility for his conduct. We will address each contention in turn.

Standard of Review

We review a district court's assessment of proposed substantial and compelling reasons to depart for an abuse of discretion. State v. Jolly , 301 Kan. 313, 325, 342 P.3d 935 (2015). An abuse of discretion occurs when a court's ruling is: (1) based on an error of law; (2) based on an error of fact, in that substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based; or (3) arbitrary, fanciful, or unreasonable such that no reasonable person would take the view adopted by the judge. 301 Kan. at 325. An abuse of discretion may be found if the district court's decision goes outside the framework of, or fails to properly consider, statutory limitations or legal standards. State v. Shopteese , 283 Kan. 331, 340, 153 P.3d 1208 (2007). McPhie, as the party asserting the district court abused its discretion, bears the burden of showing such abuse occurred. State v. Crosby , 312 Kan. 630, 635, 479 P.3d 167 (2021).

Jessica's Law

The statutory framework commonly referred to as Jessica's Law mandates a life sentence without the possibility for parole for 25 years for those defendants who are 18 or older and convicted of one of the statutorily enumerated child sex offenses set out under K.S.A. 2022 Supp. 21-6627(a)(1). A first-time offender may pursue a reduced sentence through a motion which outlines the substantial and compelling reasons that warrant a sentence in accordance with the KSGA instead. K.S.A. 2022 Supp. 21-6627(d)(1). Something is " ‘substantial’ " if it is real, not imagined; something with substance and not ephemeral, while 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. Jolly , 301 Kan. at 323.

When considering an offender's departure request, the district court must review the proposed mitigating circumstances and then consider the facts surrounding the crime of conviction to determine whether the defendant has provided satisfactory justification for a departure from the legislatively established sentence. If the court's conclusion is an affirmative one, it may sentence the defendant to the otherwise applicable term of months on the grid instead of the indeterminate life sentence. See K.S.A. 2022 Supp. 21-6804. The district court must identify the precise substantial and compelling reasons it relied upon for the record. Jolly , 301 Kan. at 324.

Did the district court consider impermissible facts when analyzing whether McPhie's case warranted a departure sentence?

Turning to McPhie's particularized complaints, we begin with his contention that the sentencing court impermissibly drew upon details set out in the probable cause affidavit when arriving at the appropriate term of incarceration. He essentially contends that the affidavit was off-limits for sentencing purposes and to assign any measure of significance to its contents amounted to an abuse of discretion.

Our review of the record, however, fails to yield any clear indication that the court truly factored that document into the sentencing equation. At the plea hearing, the district court took judicial notice of the contents of the eight-page charging affidavit on the State's request and without objection from McPhie's trial lawyer. The district court treated that as a sufficient factual basis for the guilty plea. But McPhie was not asked if he had read the affidavit, and he did not personally acknowledge or admit any of the representations in the document. All of that casts a pall over the propriety of relying on the contents of the charging affidavit for purposes of fixing an appropriate sentence. Nevertheless, the same relevant information was summarized or otherwise considered in the report from Dr. Ajibade.

Prior to sentencing, McPhie filed a motion for a durational departure which outlined several bases that he believed offered the substantial and compelling reasons required to justify a reduced sentence. He requested that the court focus on (1) his lack of a significant criminal history; (2) that he was experiencing emotional distress when the crime was committed; (3) the fact his ability to appreciate the criminality of his conduct was substantially impaired; (4) that he was only 34 years of age when the unlawful sex acts started; (5) his acceptance of responsibility by virtue of his guilty plea; (6) that he does not pose a threat to society at large; (7) his parenting obligations to his young son; and (8) the fact he is receptive to rehabilitation. The court received a copy of the motion via email and attached thereto was a copy of the evaluation that Dr. Ajibade completed with McPhie.

The sentencing proceeding got underway, and the court informed the parties that it had reviewed McPhie's motion, as well as the doctor's clinical evaluation, and it was ready to move forward with the hearing. Following the arguments of the parties, the court touched upon each of the factors advanced by McPhie in support of his departure request and explained how nearly each one was undermined by the contents of Dr. Ajibade's report.

1. Emotional...