Opinion
No. 106,956.
2012-12-21
STATE of Kansas, Appellee, v. Francisco A. FOY, Appellant.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge. David Phillip Leon, of Wichita, for appellant. David Lowden, chief appellate attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge.
David Phillip Leon, of Wichita, for appellant. David Lowden, chief appellate attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
LEBEN, J.
Francisco Foy pled guilty to three counts of aggravated indecent liberties with a 10–year–old child. Foy was an adult and thus subject to a mandatory life sentence with a minimum term of 25 years in prison under K.S.A. 21–4643.
Foy asked the district court to give him a lesser sentence—known as a downward-durational—departure sentence-but the district court denied his request. The court sentenced Foy to the statutorily prescribed life term in prison, with a minimum of 25 years to be served before parole eligibility.
Foy has appealed, claiming that the district court failed to make specific findings as required by law when it denied his departure motion, see K.S.A. 21–4718(a)(2), and that the district court violated his right to due process at the sentencing hearing. But Foy has not included a transcript of the sentencing hearing in the appellate record. The district court's written order denying a departure sentence said that the motion was denied “[p]er the record,” indicating that reasons were given orally at the sentencing hearing. Without a transcript of that hearing, we cannot evaluate Foy's argument that the district court failed to give adequate reasons for its decision or otherwise violated Foy's rights at that hearing.
As the party claiming error by the district court, Foy must present an appellate record that affirmatively shows error. See State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012). Findings of fact and conclusions of law on sentencing motions may be made orally from the bench. See State v. Koehn, 266 Kan. 10, 16, 966 P.2d 63 (1998). Without a transcript of the sentencing hearing, we must presume that the district court's actions were proper and that no error occurred. State v. Crum, 286 Kan. 145, 161, 184 P.3d 222 (2008).
We therefore affirm the district court's judgment.