Opinion
110,749.
11-21-2014
STATE of Kansas, Appellee, v. Jose HERRERA, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Jose Luis Herrera appeals his sentence following his conviction of aggravated indecent solicitation of a child. We granted Herrera's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2013 Kan. Ct. R. Annot. 63). The State has filed no response.
On September 24, 2012, Herrera pled no contest to one count of aggravated indecent solicitation of a child. On June 10, 2013, the district court imposed the standard presumptive sentence of 41 months' imprisonment but granted a dispositional departure to probation with community corrections for 36 months. Herrera timely appealed.
On appeal, Herrera claims that the district court “abused its discretion by imposing the standard number in the grid box.” Because Herrera received a dispositional departure sentence, we have jurisdiction to consider his claim on appeal. See K.S.A.2013 Supp. 21–6820(a) ; State v. Looney, 299 Kan. 903, 908–09, 327 P.3d 425 (2014).
This court reviews a district court's decision regarding the extent of a departure sentence under an abuse of discretion standard. State v. Spencer, 291 Kan. 796, 807, 248 P.3d 256 (2011). 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). As the party asserting error, the burden is on Herrera to prove an abuse of discretion has occurred. See State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
Generally, a sentencing judge is required to impose the presumptive sentence provided by the sentencing guidelines unless the judge finds substantial and compelling reasons to impose a departure sentence. K.S.A.2013 Supp. 21–6815(a). Here, the district court showed leniency by granting Herrera a dispositional departure. Herrera fails to show how the district court abused its discretion by not granting a durational departure.
Affirmed.