Opinion
No. 107025.
08-14-2015
STATE of Kansas, Appellee, v. Pablo MARTINEZ, Appellant.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Heather Cessna, 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 MALONE, C.J., McANANY and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Pablo Martinez appeals his sentence for aggravated sexual battery. He pled no contest to the charge. He sought a departure sentence, both as to its duration and as to whether he should be granted probation. The district court denied probation but departed in the length of Martinez' prison sentence. Martinez contends the durational departure was insufficient, and in any event the court should have granted probation. Finally, he contends the sentencing court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by not having his criminal history determined by a jury. We are not persuaded by Martinez' arguments and affirm his sentence.
Martinez was charged with aggravated sexual battery and aggravated burglary. The charges arose after Martinez entered his neighbor's apartment while she was asleep, undressed her, and fondled her.
As the case proceeded towards trial the victim became gravely ill with cancer. She was only expected to survive for a few months. Under the circumstances it would have been a significant added burden for her to testify at Martinez' trial. Thus, immediately before the trial was to commence, and notwithstanding Martinez' assertion that he had a meritorious defense, the parties announced that they had reached a plea agreement under which Martinez could benefit from a reduced sentence.
Under the plea agreement, Martinez would enter a no contest plea to the reduced charge of attempted aggravated sexual battery. The aggravated burglary charge would be dismissed. Because of Martinez' criminal history, the sentencing court would have to invoke the persistent sex offender statute; but once imposed, the State would not oppose a downward durational departure sentence of 32 months' imprisonment. Martinez was free to seek an additional departure, but if he did so the State could oppose it.
Martinez moved for departures. He sought probation based on the assertions that he did not have a history of violent behavior, the attack did not result in any physical harm to the victim, and he would have access to better treatment programs outside of prison.
The district court denied probation but departed to 38 months in prison, 6 months more than the 32 months contemplated by the plea agreement. The district court believed the extra months were warranted because of the “great harm” that was done to the victim. This appeal followed.
Martinez contends the district court abused its discretion in the length of the sentence it imposed and in denying probation. The district court abuses its discretion if its decision (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. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
It is undisputed that the victim was critically ill with cancer, and Martinez' plea avoided her having to testify at trial. But while Martinez claims he has no history of violence, his criminal history includes four convictions for assault and a conviction for attempted aggravated indecent liberties with a child under age 14.
With respect to his claims about available treatments outside of prison, he did not provide the sentencing court with any details about any such programs, whether he was eligible to participate in them, or whether he had applied to any of them. Further, by his conduct in the past he had not shown that he could conform his conduct to the law while out of prison.
Martinez made the less-than-compelling argument at sentencing that the only trauma the victim had to face was “inside her mind,” since she suffered no physical injury. The victim asserted that she was undergoing counseling and that she did not feel safe in her home. We need not dwell on Martinez' simplistic and unrealistic view of the impact of sex crimes on the victim. The victim did not testify, but she submitted a victim impact statement which the court found to be compelling. As a basis for her restitution request, the victim reported she moved from her apartment without notice, apparently because of her feeling of being unsafe in her own home.
Martinez had no right to probation. Probation was strictly a matter of discretion for the sentencing court. Martinez has the burden of proving an abuse of that discretion. He has failed to meet that burden. Under the circumstances, we find no abuse of discretion in the denial of Martinez' motion for probation.
With respect to the duration of his sentence, the guideline sentencing range for Martinez' crime was 54–58–62 months. He had a criminal history score of A and was classified as a persistent sex offender. While Martinez wanted his prison sentence reduced to 32 months, he received a sentence of 38 months, a 24–month reduction from the aggravated guideline sentence. Considering all the facts before the district court at the time of sentencing, we find no abuse of discretion in the duration of the sentence imposed.
Finally, Martinez contends the district court erred in enhancing his sentence without submitting his prior convictions to a jury for proof beyond a reasonable doubt. This contention was rejected by our Supreme Court in State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002). The court held that prior convictions need not be presented in an indictment or proven to a jury in order to be used for sentencing purposes. We are duty bound to follow this decision absent an indication the Supreme Court is departing from it. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). We see no such indication. Consequently, this contention fails.
Affirmed.