Opinion
110,392.
12-12-2014
STATE of Kansas, Appellee, v. William DIE, Appellant.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. No appearance for appellee.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.
No appearance for appellee.
Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This case comes to our court on remand from the Supreme Court with directions that we reconsider this case in light of State v. Looney, 299 Kan. 903, 327 P.3d 425 (2014).
William Die pled no contest to one count of aggravated indecent liberties with a child. His presumptive sentence was 55, 59, or 61 months. Die filed a motion for a downward dispositional and/or durational departure. The district court granted the downward durational departure and sentenced Die to 36 months' imprisonment with lifetime postrelease supervision. The district court denied Die's motion for downward dispositional departure. Die timely appealed. This court summarily dismissed the appeal for lack of jurisdiction. A petition for review was granted, and our Supreme Court vacated this court's order and remanded for consideration of Die's challenge to his sentence.
On appeal, Die contends the district court abused its discretion by denying his motion for a downward dispositional departure. The State did not file a brief in this matter. We first set forth our standard of review.
Our Supreme Court has held that an abuse of discretion standard is employed when reviewing a district court's decision on a departure motion. State v. Floyd, 296 Kan. 685, 687, 294 P.3d 318 (2013). A judicial action constitutes an abuse of discretion if the action is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
In June 2012, Die was 21 years old, and A.O. was 15 years old. A .O. went to Die's house to “hang out.” Die believed she was older than 15. The two kissed, went into a back bedroom, and engaged in sexual activity. A.O. never indicated that any type of force was used.
K.S.A.2013 Supp. 21–6815 provides a list of mitigating and aggravating factors the district court may consider as substantial and compelling reasons for a departure sentence. The district court heard evidence of mitigating and aggravating factors prior to sentencing Die. See State v. Spencer, 291 Kan. 796, 813, 248 P.3d 256 (2011) (reviewing the district court's decision that mitigating factors used to support a departure constituted substantial and compelling reasons to depart). The evidence included testimony from A.O.'s father. He testified that while Die should receive punishment, he believed the presumptive sentence was too harsh. He advocated for Die to receive a lesser punishment. Furthermore, the court was aware that Die's criminal history only included a misdemeanor possession of marijuana from 2011.
The district court also heard testimony that Die was intoxicated the night of the incident. Die said he had a slight drinking problem at the time, but he had been sober since he went to jail. He planned on maintaining a sober lifestyle once released from prison; he did not want his judgment affected by drugs or alcohol.
The district court reviewed information regarding a previous sexual relationship involving A.O. and a different defendant. That situation was similar to Die's because A.O. had engaged in a sexual relationship with another man who was 27 years old. This man was subsequently arrested for aggravated indecent liberties with a child. The record clearly indicates A.O. was not being blamed, and she was certainly a victim. However, the court could use this information to consider the degree of harm or loss to the underage victim, as well as the participation of the victim. See State v. Haney, 34 Kan.App.2d 232, 241–45, 116 P.3d 747, rev. denied 280 Kan. 987 (2005).
The district court heard additional testimony regarding Die's relationship with his family and his ability to work. Die's father testified that while he and Die's mother were divorced, Die had a good relationship with both parents. If Die was released on probation, he could live with his mother in Nebraska where there would be work available to him. Die said he would have a job in industrial maintenance at the company where his stepfather worked. Die testified he had been a pre-apprentice electrician for approximately 2 years. Moreover, he had previously worked with chemicals, helped farmers with cattle, and he had developed skills as a mechanic. At the end of Die's testimony, he apologized for the incident with A.O., and he took full responsibility. He said he would never let this happen again.
After considering the testimony, the record, and the arguments, the district court granted Die's motion for a downward durational departure but denied his motion for a downward dispositional departure. The district court found Die had a supportive family, no meaningful criminal history, and the victim “was perhaps a more active participant than there would be in other similar types of cases.” Based on the foregoing analysis, we cannot say that no reasonable person would have taken the position adopted by the district court. The district court did not abuse its discretion by denying Die's motion for a downward dispositional departure. While another court might have granted a greater downward dispositional departure, we do not find the departure ordered here was unreasonable due to the nature of the crime and the fact that a departure was granted.
Affirmed.