Opinion
No. 115,468
03-31-2017
STATE of Kansas, Appellee, v. James Franklin ATKISSON, Jr., Appellant.
Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant. Brandon L. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.
Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.
Brandon L. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Hill, P.J., Malone and Gardner, JJ.
MEMORANDUM OPINION
Per Curiam:
James Franklin Atkisson, Jr., appeals his sentence, for the second time, following his conviction of one count of rape. Atkisson claims the district court abused its discretion by failing to follow the procedure set forth in State v. Jolly , 301 Kan. 313, 342 P.3d 935 (2015), in addressing his motion to depart from the presumptive sentence under Jessica's Law. In the alternative, Atkisson claims the district court abused its discretion by denying his motion for departure because substantial and compelling reasons supported the motion. Finding no error, we affirm the district court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 10, 2014, the State charged Atkisson with two counts of off-grid rape for having sexual intercourse with A.A.B., who was under 14 years of age. The parties subsequently entered in a plea agreement whereby Atkisson would plead no contest to one count of rape in exchange for dismissal of the other count. The State agreed to recommend that Atkisson receive a departure to a severity level 1 grid sentence, which the parties believed would put him at a mid-box range of 176 months with a criminal history score H. In addition, Atkisson agreed to increase that sentence by another 12 months in exchange for an agreement that the Franklin County District Attorney would not file any charges against Atkisson for events that occurred in Franklin County.
At the plea hearing on June 23, 2014, the State provided the factual basis for the plea stating that between October 31, 2013, and November 1, 2013, in Anderson County, Atkisson, who was in his 40's at the time, had sexual intercourse with A.A.B., who was 13 years of age. The State indicated that A.A.B. had told law enforcement about the incident and that Atkisson had admitted the incident during a police interview. The district court accepted Atkisson's no-contest plea and set the matter over for sentencing.
Prior to sentencing, Atkisson filed a motion for departure. In the motion, Atkisson cited three mitigating factors supporting a departure: (1) This case was his first conviction for a sex offense, (2) his lack of significant criminal history, and (3) the fact that the State did not object to the proposed sentence.
At the sentencing hearing on July 14, 2014, Atkisson's criminal history score was determined to be G, as opposed to H. Even with this unexpected change, Atkisson's sentence under the grid, assuming the district court granted the departure, fell within the range of 186 months' imprisonment, which was agreeable with the State. In ruling on the motion to depart, the district court considered the mitigating factors listed in Atkisson's motion and weighed them against the aggravating factors of the case. Specifically, the district court stated: "Granted you have a limited criminal history and this may in fact be your [first] sexual offense conviction, but weighing those factors against the other items that the Court's indicated , the Court doesn't believe that a departure is justified in this particular case." (Emphasis added.) The district court then imposed the presumptive sentence of life imprisonment with no chance of parole for 25 years.
Atkisson appealed his sentence and argued that the district court failed to follow the procedure set forth by our Supreme Court in Jolly in addressing his motion for departure under Jessica's Law. This court agreed and found that the district court improperly sentenced Atkisson in violation of Jolly , by weighing aggravating circumstances against mitigating circumstances. This court vacated Atkisson's sentence and remanded for resentencing in compliance with the holding in Jolly . State v. Atkisson , No. 112,656, 2015 WL 6457797 (Kan. App. 2015) (unpublished opinion).
The district court resentenced Atkisson on January 25, 2016. Atkisson again requested the district court to consider his motion for departure from the presumptive sentence under Jessica's Law. After recognizing the three mitigating factors Atkisson listed in his motion for departure, the district court stated:
"In looking at the facts in this particular case , from review of the file, affidavit that was originally filed and the statement of facts provided by the State at the time of the plea in this case, this is a situation in which the victim is a thirteen year old girl, at least at the time when the offense were [sic ] reported. At the time [the] offense was reported the defendant was 47 years old. So, over thirty years her senior. At the time, the offense were [sic ] reported, [we're] not just talking one incidence but several [incidents] that occurred over [a] period of time involving oral sex on more than one occasion and intercourse on more than one occasion. If you look at just the affidavit [itself], it appears that it was oral sex at least four times and intercourse at least six times. There is a question as to whether or not it occurred in two different counties. I think part of the plea agreement in this particular case was that, certain charges in another county were dismissed. The way that the defendant was able to have contact with this girl, was because of the girl[']s friendship with his own daughter. And during times when he was entrusted to give this girl a ride, that's when these incidences would occur. And then finally we have what the defendant wrote in his PSI [that] he is now denying he has any memory of it." (Emphasis added.)
The district court concluded that "in light of the facts of this particular case, [the] mitigating circumstances that the Court reviewed do not rise to [the] level of substantially compelling reasons to depart from the otherwise mandatory sentence." Accordingly, the district court resentenced Atkisson to a hard 25 life sentence. Atkisson timely appealed.
ANALYSIS
On appeal, Atkisson again contends that the district court failed "to follow the Jolly procedure" when resentencing him, therefore abusing its discretion. Atkisson maintains the district court improperly weighed mitigating factors "against aggravating circumstances, and ... compounded the error by relying on uncharged allegations from the probable cause affidavit which were beyond the facts of the case." In the alternative, Atkisson argues that the district court abused its discretion by denying his motion for departure because substantial and compelling reasons supported the motion.
The State contends "[t]he district court followed the proper procedure and made proper findings in denying a downward departure." The State argues that the district court did not weigh any aggravating factors against the mitigating factors. Instead, the State asserts that the district court "considered the facts of the case and made a determination of whether the mitigating circumstances presented rose to the level of substantial and compelling reasons to depart from an otherwise mandatory sentence." The State maintains that the district court's decision to impose the presumptive sentence was well within the court's discretion.
Both parties agree that we review the district court's sentencing order for an abuse of discretion. " ‘Judicial discretion can be abused in three ways: (1) if no reasonable person would have taken the view adopted by the trial court; (2) if the judicial action is based on an error of law; or (3) if the judicial action is based on an error of fact.’ [Citation omitted.]." State v. Marshall , 303 Kan. 438, 445, 362 P.3d 587 (2015). The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. State v. Robinson , 303 Kan. 11, 90, 363 P.3d 875 (2015), cert. denied 137 S. Ct. 164 (2016), disapproved on other grounds by State v. Cheever , 304 Kan. 866, 375 P.3d 979 (2016).
Under Jessica's Law, the presumptive sentence for a defendant who is 18 years or older and convicted of rape by having sexual intercourse with a child who is under 14 years of age is life in prison with no possibility of parole for 25 years. K.S.A. 2016 Supp. 21–6627(a)(1)(B) ; 21–5503(a)(3). The district court must impose the presumptive sentence "unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure." K.S.A. 2016 Supp. 21–6627(d)(1).
In Jolly , our Supreme Court determined that K.S.A. 2016 Supp. 21–6627(d)(1)"makes no provision for the weighing of aggravating circumstances against the mitigating circumstances to determine if a departure should be imposed." 301 Kan. at 321. Accordingly, the court disapproved of any language in prior caselaw "that would indicate aggravating circumstances can be weighed against mitigating circumstances when considering a departure in a Jessica's Law sentencing." 301 Kan. at 322.
The Jolly court further stated that "[w]hile [the statute] does not allow a weighing of aggravating factors against mitigating factors, 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. The court recognized that "a judge does not sentence in a vacuum." 301 Kan. at 324. The court specifically stated that the "sentencing judge is to 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. The court concluded by stating:
"[T]he proper statutory method when considering a departure from a Jessica's Law sentence is for the sentencing court first to review the mitigating circumstances without any attempt to weigh them against any aggravating circumstances. Then, in considering the facts of the case, the court determines whether the mitigating circumstances rise to the level of substantial and compelling reasons to depart from the otherwise mandatory sentence. Finally, if substantial and compelling reasons are found for a departure to a sentence within the appropriate sentencing gridlines, the district court must state on the record those substantial and compelling reasons." 301 Kan. at 324.
In State v. McCormick , 305 Kan. 43, 50–51, 378 P.3d 543 (2016), a four-justice majority of our Supreme Court reaffirmed the holding in Jolly that a judge may not weigh aggravating circumstances against mitigating circumstances in deciding a departure motion under Jessica's Law. The court again acknowledged that the sentencing judge is to consider information that reasonably might bear on the proper sentence for a particular defendant, including the manner in which an offender carried out the crime and the circumstances inherent in the crime. 305 Kan. at 50. However, the court clarified that the "manner in which a crime is committed and the circumstances inherent in the crime are not inevitably limited to the strict legal elements of the offense." 305 Kan. at 50. Because the sentencing judge in McCormick had explicitly referred to some of the evidence as an "aggravating factor" and had indicated that it weighed the evidence against the mitigating evidence presented by the defendant, the court concluded that it was compelled to remand the case for resentencing in compliance with the holding in Jolly . 305 Kan. at 50–51.
Justice Stegall, joined by two other justices, dissented in McCormick . The dissent criticized the Jolly decision for expanding on the plain language of K.S.A. 2012 Supp. 21–6627(d)(1) by interpreting that language as a command that the sentencing court must conduct a review of the mitigating circumstances without balancing them against the aggravating circumstances. 305 Kan. at 51–52. Specifically, the dissent stated:
"The plain, unambiguous language of K.S.A. 2012 Supp. 21–6627(d)(1) merely tells the district court judge to determine whether substantial and compelling reasons exist to grant a downward departure after reviewing the mitigating circumstances. It does not command a weighing of aggravating and mitigating factors—but neither does it prohibit such a weighing. This court has read that ‘command’ into the law with no textual support in the statutory scheme." 305 Kan. at 52.
To support his claim that the district court failed to comply with Jolly at resentencing, Atkisson cites State v. Pulley , No. 112,631, 2015 WL 5750477 (Kan. App. 2015) (unpublished opinion). In that case, the State initially charged the defendant with one count of rape and one count of aggravated indecent liberties. The defendant agreed to plead guilty to aggravated indecent liberties in exchange for the dismissal of the rape charge. 2015 WL 5750477, at *1. At the sentencing hearing, the district court relied on facts set forth in the probable cause affidavit to deny the defendant's departure motion under Jessica's Law. 2015 WL 5750477, at *3.
On appeal, this court noted that several of the facts relied on by the district court in denying the departure motion were related to the rape charge that had been dismissed by the State. 2015 WL 5750477, at *5–6. As a result, this court found that the sentencing court considered evidence that went beyond the facts of the crime of conviction, in violation of Jolly . 2015 WL 5750477, at *6. This court determined that, in denying the departure motion, it was improper for the district court to consider an allegation of rape that had not been proved by the State nor admitted by the defendant. 2015 WL 5750477, at *6. This court vacated the sentence and remanded for the district court to resentence the defendant in compliance with the holding in Jolly . 2015 WL 5750477, at *6.
Atkisson's reliance on Pulley is misplaced. Contrary to what Atkisson states, the problem in that case was not the fact that the district court relied on the probable cause affidavit in addressing the defendant's departure motion. The Jolly decision specifically allows the district court to consider the facts of the case and the manner in which the defendant committed the crime when addressing a departure motion under Jessica's Law. 301 Kan. at 324. The problem in Pulley was that the district court considered facts that were related to a dismissed charge of rape when the defendant had only pled guilty to aggravated indecent liberties. That is not what happened in Atkisson's case.
Here, the State initially charged Atkisson with two identical counts of rape. The separate counts alleged that Atkisson had sexual intercourse with the same victim on the same dates in the same county in violation of the same statute. It is unclear from the record why the State filed two identical charges against Atkisson. The facts alleged in the probable cause affidavit equally supported both counts of rape without any attempt to differentiate the separate charges. The State later dismissed one of the rape counts as part of the plea negotiations. However, in addressing Atkisson's departure motion at the resentencing hearing, almost all the facts referred to by the district court still related to the rape count for which Atkisson was convicted. Some of the facts included in the probable cause affidavit went beyond the act of sexual intercourse between Atkisson and A.A.B., but the manner in which the crime was committed is not "limited to the strict legal elements of the offense." McCormick , 305 Kan. at 50.
The only exception is that in resentencing Atkisson, the district court referred to incidents that "occurred in two different counties." Technically, this fact went beyond the manner in which Atkisson carried out the crime of conviction. However, the fact that Atkisson committed offenses in two different counties was an integral part of the plea agreement as the out-of-county charge not being filed was the basis for the addition of 12 months to Atkisson's sentence. Thus, the fact that Atkisson committed offenses in two different counties certainly was part of "the facts of the case" essential for the court to consider in deciding a departure motion according to Jolly . See 301 Kan. at 323–24.
The Jolly court recognizes that the "sentencing judge is to consider information that reasonably might bear on the proper sentence for a particular defendant, given the crime committed, including [but not limited to] the manner or way in which an offender carried out the crime." 301 Kan. at 324. It is significant to note that—contrary to what our court concluded in Pulley —the Jolly court did not limit the information that a sentencing court may consider to the manner in which the defendant committed the crime or the circumstances inherent in the crime. Such evidence is simply an example of the information a court may consider that reasonably might bear on the proper sentence for a particular defendant. Nevertheless, although the Jolly decision does not limit the sentencing court's consideration to the facts of the case and the manner in which the crime was committed, that is all the district court considered in Atkisson's case.
Here, in ruling on Atkisson's departure motion, the district court first reviewed the mitigating circumstances without any expressed attempt to weigh them against any aggravating circumstances. The district court then considered the facts of the case and the manner in which the crime was committed as set forth in the probable cause affidavit and the statement of facts provided by the State at the time of the plea. After considering the facts of the case and the manner in which the crime was committed, the district court determined that the mitigating circumstances asserted by Atkisson did not rise to the level of substantial and compelling reasons to depart from the mandatory sentence. This is exactly the procedure for considering a departure motion under Jessica's Law approved by our Supreme Court in Jolly . See 301 Kan. at 324. Thus, the district court did not abuse its discretion in failing to follow the Jolly procedure at Atkisson's resentencing hearing.
In the alternative, Atkisson claims the district court abused its discretion by denying his motion for departure because substantial and compelling reasons supported the motion. In his motion, Atkisson cited three mitigating factors supporting a departure: (1) This case was his first conviction for a sex offense, (2) his lack of significant criminal history, and (3) the fact that the State did not object to the proposed sentence.
As previously stated, under Jessica's Law, the district court must impose the presumptive sentence "unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure." K.S.A. 2016 Supp. 21–6627(d)(1). The term "substantial" refers to something that is real, not imagined; something with substance and not ephemeral." State v. McKay , 271 Kan. 725, 728, 26 P.3d 58 (2001). 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. 271 Kan. at 728.
Here, even though the departure motion was agreed to by the parties, we cannot say that the district court abused its discretion in finding that the mitigating circumstances asserted by Atkisson did not rise to the level of substantial and compelling reasons to depart from the presumptive sentence. Stated differently, we are unable to find that no reasonable person would have taken the view adopted by the district court in denying Atkisson's motion for departure. See Marshall , 303 Kan. at 445. Atkisson fails to establish the district court abused its discretion by imposing the presumptive sentence.
Affirmed.