Opinion
111,634.
07-17-2015
STATE of Kansas Appellee, v. Anthony McINTYRE, Appellant.
Johnathan M. Grube, of Kansas Appellant Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Johnathan M. Grube, of Kansas Appellant Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., SCHROEDER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Anthony McIntyre appeals an upward departure to 60 months' probation after convictions for two counts of aggravated indecent solicitation of a child. McIntyre argues the district court lacked substantial and compelling reasons to depart. We disagree, so affirm.
Procedural Background
The State of Kansas initially charged McIntyre with two counts of off-grid rape, alleging he had sexual intercourse with a 13–year–old girl. The probable cause affidavit reported that McIntyre, 19 years old at the time, had intercourse with the victim at her home on September 25, 2012, and on October 11, 2012. When interviewed by police, McIntyre denied knowing anybody of the victim's name.
McIntyre underwent a sex offender evaluation, apparently at the request of his counsel. McIntyre told Bruce Nystrom, Ph.D., a clinical psychologist, that he did not know the victim. McIntyre claimed he had sexual intercourse with a 17–year–old girl not named in the charges.
McIntyre entered into plea negotiations with the State, which amended the charges to two counts of aggravated indecent solicitation of a child in violation of K.S.A.2012 Supp. 21–5508(b)(l), a severity level 5 crime. At the plea hearing, McIntyre stated as part of the factual basis that he had oral sodomy with the victim on the first occasion and intercourse with her on the second. At sentencing, the district court expressed reservations about Dr. Nystrom's report. McIntyre's counsel told the district court that McIntyre had denied the acts because he initially misunderstood the identity of the girl in question, and that Dr. Nystrom therefore conducted a second interview. McIntyre's counsel had failed to provide Dr. Nystrom's supplemental report to the district court before sentencing, and neither Dr. Nystrom's report nor its supplement is in the record on appeal.
When the district court asked McIntyre if he wished to say anything in mitigation of punishment, McIntyre answered: “Your Honor, at the time I did not know how old she was. I was not told the truth about the situation, and if I would have known that, I wouldn't have even considered any sexual activity with her.” The district court continued sentencing, directing McIntyre's counsel to produce Dr. Nystrom for testimony on his evaluation.
At the continued hearing, Dr. Nystrom testified that once McIntyre understood the identity of the girl in question, he admitted to his acts. Testing showed McIntyre has an average IQ with “features of a dependent personality” and “mistrust of others that would tend to place the dependency needs in conflict.” The “Multifaceted Sex Inventory” was “fake good,” as the doctor put it, indicating that McIntyre was “presenting his best foot forward” and “believing himself that he's a good person.” The Static 99R test indicated McIntyre has a low moderate risk of reoffending.
McIntyre told Dr. Nystrom that he met the victim at a skating rink and misrepresented his age to her. Dr. Nystrom believed McIntyre “had some indications” the victim was underage, but that her consent to the acts was a “large factor” in McIntyre's decision making. The doctor explained that a lot of sex offenders, including McIntyre, feel as long as the other person consents to it, it must be okay if not legal.
Dr. Nystrom said McIntyre had been in weekly therapy for about 2–1/2 months and that he missed one of the regularly scheduled sessions. McIntyre told Dr. Nystrom he missed the session because he forgot about it. The doctor said sex offender treatment can typically last “two or more years” and that in his opinion, McIntyre's prognosis was “very, very good.”
McIntyre had no criminal history and thus a criminal history score of I. He was in a border box, and the State asked the district court to impose the presumptive prison sentence. The district court found appropriate treatment existed which was likely to be more effective than the presumptive prison sentence in reducing the risk of recidivism and that a nonprison sanction would serve community safety interests by promoting McIntyre's reformation. The district court therefore granted probation from an underlying prison sentence of 68 months.
However, the district court departed from the recommended statutory term for probation—36 months—to the maximum statutory term of 60 months. See K.S.A.2012 Supp. 21–6608(c)(1)(A), (c)(6). The district court stated its reasons as, “the nature of the offense in this case and the indicated nature of the treatment program. I want to insure he successfully completes that program and is still monitored for a significant period of time before his release from probation.” In the journal entry of judgment, the district court recorded the reason as: “Open[ ] nature of treatment program.”
Were there substantial and compelling reasons to depart?
McIntyre contends the “aggravating factors cited by the district court, viewed as a whole, are not substantial and compelling reasons to support an upward durational departure probation sentence.” This court reviews the district court's decision for abuse of discretion. See K.S.A.2014 Supp. 21–6820(d)(2) ; State v. Rochelle, 297 Kan. 32, 45, 298 P.3d 293 (2013). Discretion is abused when a judicial action is arbitrary, fanciful, or unreasonable or when it is based on an error of fact or law. See State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). McIntyre bears the burden to show abuse of discretion. See State v. Rojas–Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).
A district court must “state on the record substantial and compelling reasons to deviate from the recommended term” of probation. State v. Schad, 41 Kan.App.2d 805, 827, 206 P.3d 22 (2009) ; see K.S.A.2014 Supp. 21–6815(a). “The term ‘substantial’ refers to something that is real, not imagined; something with substance and not ephemeral. 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.” State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 (2001). The legislature provides a nonexclusive list of mitigating and aggravating factors a court may consider in determining whether substantial and compelling reasons for departure exist. See K.S.A.2014 Supp. 21–6815(b)(c).
McIntyre asserts the facts of his case do not go beyond the ordinary. He also claims mitigating factors were present, namely, his acceptance of responsibility for the crimes, his lack of a criminal record, and the fact he was ordered to attend sex offender treatment. We disagree.
McIntyre was convicted of “enticing, commanding, inviting, persuading or attempting to persuade a child under the age of 14 years to ... [c]ommit or submit to an unlawful sexual act.” K.S.A.2012 Supp. 21–5508(b)(l). The record shows McIntyre went further and obtained actual commission or submission by the victim to unlawful sexual acts. McIntyre did so after approaching the victim in an apparently calculated way, as evidenced by his meeting her at a venue where girls might be found, and by his lying about his age. Taken as a whole, the record demonstrates McIntyre's commission of the crime was beyond what is ordinary.
After the crimes, McIntyre denied them in a pattern of minimization seen even at the plea hearing. His testing showed psychological issues, and he had already missed one therapy session without a valid reason. These were real, not imagined, indications that therapy might not reduce the risk of recidivism or serve community safety interests-the premises upon which the district court granted probation.
According to Dr. Nystrom, it is “key” and “highly critical” that a patient in sex offender treatment admit to his or her wrongdoing. Dr. Nystrom originally believed McIntyre was not a candidate for treatment “[b]ecause at that point he was denying any wrongdoing in connection with the charge against him.” Dr. Nystrom changed his mind after McIntyre acknowledged his crimes, but the basis for McIntyre's initial misunderstanding about the girl in question was never fully explained. Even after repeated questioning at the evidentiary hearing and statements to the district court from McIntyre's counsel regarding his own interactions with McIntyre, the basis for McIntyre's misunderstanding remained obscure. We thus do not find it a reasonable mistake.
Having reviewed the record, we find the district court had substantial and compelling reasons to impose 60 months of probation. The longer term served two purposes, as the district court stated on the record: it ensured McIntyre had ample time to complete treatment, and it provided opportunity for monitoring McIntyre's behavior after the expected completion of treatment. McIntyre has not shown the district court abused its discretion.
Affirmed.