Opinion
No. 107833.
02-13-2015
STATE of Kansas, Appellee, v. Pedro I. MONDRAGON–MARTINEZ, Appellant.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN. P.J., SCHROEDER, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Pedro Mondragon–Martinez was convicted of aggravated indecent liberties with a child and aggravated indecent solicitation of a child and was sentenced to a total of 95 months' imprisonment. Mondragon–Martinez asked the district court to grant his downward durational departure request. The district court did grant a downward durational departure, but Mondragon–Martinez appeals his sentence arguing that the district court erred when it failed to grant a further departure.
Mondragon–Martinez filed a timely notice of appeal. This court dismissed the appeal finding that this court was without jurisdiction following reasoning of State v. Crawford, 21 Kan.App.2d 169, 897 P.2d 1041 (1995), in State v. Mondragon–Martinez, No. 107,833, 2014 WL 642023 (Kan.App.2014) (unpublished opinion). Mondragon–Martinez filed a petition for review. On January 21, 2015, our Supreme Court granted his petition for review, vacated this court's dismissal of the appeal, and remanded the case to consider the sentencing challenge.
Our Supreme Court in State v. Looney, 299 Kan. 903, 906–10, 327 P.3d 425 (2014), overruled Crawford and further found that there was no exception to K.S.A. 21–4721(c) that would divest this court of jurisdiction to hear this appeal. This case was remanded to the Court of Appeals for consideration on the merits.
Facts
Mondragon–Martinez pled guilty to and was convicted of aggravated indecent liberties with a child and aggravated indecent solicitation of a child. At the time of the crimes, Mondragon–Martinez was over the age of 18 and the victim was less than 14 years of age.
For his conviction of aggravated indecent liberties, Mondragon–Martinez was subject to an off-grid mandatory hard 25 lifetime sentence. The district court granted a downward durational departure and placed Mondragon–Martinez within the presumptive sentencing guidelines. The district court then set out Mondragon–Martinez' presumptive prison range for both crimes. Mondragon–Martinez fell under a presumptive sentence with a high range of 61 months and a low range of 55 months for his conviction of aggravated indecent liberties with a child. For his conviction of aggravated indecent solicitation of a child, the presumptive sentence range was a high range of 34 months and a low range of 31 months.
In Mondragon–Martinez' downward durational departure request, he asked the sentencing court to sentence him to 55–months' imprisonment. Although the district court granted Mondragon–Martinez' departure request by removing him from an off-grid sentence to the presumptive sentencing guidelines, the district court ordered him to serve the high range of 61 months in prison for aggravated indecent liberties with a child, consecutive to a 34–month sentence for aggravated indecent solicitation of a child. In all, Mondragon–Martinez was ordered to serve a 95–month prison term.
Analysis
In this case, the district court removed Mondragon–Martinez from the off-grid lifetime sentence, for which he would have been required to serve a minimum of 25 years under K.S.A.2009 Supp. 21–4643, and placed him within the presumptive sentencing guidelines. The district court ordered Mondragon–Martinez to serve the high range presumptive prison terms for both crimes consecutively. Under the district court's imposed sentence, Mondragon–Martinez will serve nearly 8 years of prison time versus the mandatory minimum of 25 years that he was subject to before the district court's departure.
Mondragon–Martinez contends that the district court abused its discretion when it failed to order a greater downward durational departure.
An appellate court's standard of review of the grant of a departure sentence under Jessica's Law is the same as the standard of review of non-Jessica's Law sentencing departures. State v. Spencer, 291 Kan. 796, 807–08, 248 P.3d 256 (2011). See K.S.A.2009 Supp. 21–4643(d).
When the extent of a durational departure is challenged, “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.” Spencer, 291 Kan. at 807–08.
A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
Mondragon–Martinez asserts that he should have received a greater downward durational departure because of the following factors in his favor:
“(1) a lesser prison sanction would serve community safety interests by promoting offender reformation more than incarceration; (2) the harm in the present case was less than typical for such an offense; (3) Mr. Mondragon–Martinez had no prior criminal record; (4) the victim did not want Mr. Mondragon–Martinez to serve a life sentence; (5) this conviction would lead to Mr. Mondragon–Martinez being deported; (6) a psychological evaluation of Mr. Mondragon–Martinez showed that he presented ‘few risks for sexual, violent, or general recidivism’; (7) a psychological evaluation recommended that Mr. Mondragon–Martinez receive treatment for substance abuse; and (8) the State supported departure.”
While Mondragon–Martinez asserts that there were several factors to support a possible further downward durational departure, he fails to show that the district court's decision not to grant a further departure was an abuse of discretion. In regard to the factors that Mondragon–Martinez contends support his request for a greater durational departure, he states that the victim did not want him to serve a life sentence. Under the sentence entered by the district court, he will not serve a life sentence. His reliance on the fact that he would be deported is unhelpful because he will most likely be deported despite the length of his sentence. In addition, the State did not support a further departure once the district court removed Mondragon–Martinez from the off-grid lifetime sentence and placed him within the presumptive sentencing guidelines. In fact, the State specifically argued for the high range of 61 months' imprisonment for aggravated indecent liberties with a child conviction with a consecutive 34 months' imprisonment for the aggravated indecent solicitation of a child conviction.
The charges in this case were very serious, and the sentence for which was a presumptive lifetime sentence with a minimum 25 years of prison time. The victim was less than 14 years of age. Having reviewed the record on appeal, it appears that the district court considered all the factors when it granted a durational departure including all the factors raised by Mondragon–Martinez. It cannot be said that the district court abused its discretion when it denied a further downward durational departure of Mondragon–Martinez' sentence.
Affirmed.