Opinion
111,921.
07-10-2015
STATE of Kansas, Appellee, v. Fredy Yovani RECINOS–GONZALEZ, Appellant.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Fredy Yovani Recinos–Gonzalez appeals the district court's denial of his motion for a dispositional sentencing departure to probation for his convictions of five counts of aggravated indecent liberties with a child and two counts of criminal sodomy. He claims that the district court abused its discretion in denying his motion. Finding no error, we affirm the district court's judgment.
On December 4, 2013, Recinos–Gonzalez pled guilty as charged to five counts of aggravated indecent liberties with a child and two counts of criminal sodomy. The presentence investigation report showed his criminal history score as I, resulting in a presumptive sentencing range of 55–59–61 months' imprisonment for each conviction.
Recinos–Gonzalez filed a motion for dispositional departure, arguing the following as substantial and compelling reasons for the district court to sentence him to probation: (1) the victim admitted she had lied to Recinos–Gonzalez and told him she was 16 years old; (2) Recinos–Gonzalez would not have committed the crimes if the victim had not lied about her age, making her an active participant in the crimes; (3) as soon as RecinosGonzalez learned the victim's real age, he ceased contact with her; (4) Recinos–Gonzalez was not an aggressor and was unlikely to reoffend; (5) Recinos–Gonzalez admitted guilt and, as a result, faced deportation from the United States; (6) Recinos–Gonzalez was not a threat to society as a whole; and (7) the degree of harm to the victim was less than typical for these offenses.
At the sentencing hearing on January 24, 2014, Recinos–Gonzalez reasserted the factors set forth in his motion. He also pointed out that, due to these convictions, he would likely be deported and have no chance of returning to the United States legally. He asked the district court to impose probation with the condition that he not reenter the United States until it was legal for him to do so. He recognized that his deportation probably would result in his violating other conditions of probation, since he would not be able to report as directed.
In response, the State conceded that the victim initially had lied about her age and had participated willingly in the sexual acts, although she could not legally consent, and conceded that Recinos–Gonzalez did not appear to be a sexual predator. The State further asserted, however, that Recinos–Gonzalez initially had not been cooperative with police and had lied about his sexual contact with the victim. Although the State did not request a lengthy sentence, asking for the mitigated term of 55 months' imprisonment with all sentences to run concurrently, the State opposed probation, arguing that it would be, “in effect, letting him walk away from this for the most part.”
The district court granted a durational departure, based on the reasons set forth in Recinos–Gonzalez' motion, but denied the request for a dispositional departure to probation. The district court sentenced Recinos–Gonzalez to 30 months' imprisonment on each count, with the sentences to run concurrently. He timely appealed his sentence.
The sole issue on appeal is whether the district court erred in denying RecinosGonzalez' motion for dispositional departure. Here, the district court granted a durational departure but not a dispositional departure. As the State concedes, this court has jurisdiction to review Recinos–Gonzalez' sentence pursuant to our Supreme Court's recent ruling in State v. Looney, 299 Kan. 903, 908–09, 327 P.3d 425 (2014) (appellate court has jurisdiction to review departure sentence).
This court reviews the extent of a district court's departure sentence for abuse of discretion, “measuring whether the departure is consistent with the purposes of the guidelines and proportionate to the crime severity and the defendant's criminal history.” See State v. Spencer, 291 Kan. 796, 807–08, 248 P.3d 256 (2011). A district court abuses its discretion only when it bases its decision on an error of fact or law or the decision is arbitrary, fanciful, or unreasonable. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012). As the party asserting error, RecinosGonzalez bears the burden of establishing an abuse of discretion. See State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
Under K.S.A.2014 Supp. 21–6815(a), a district court must impose a presumptive sentence unless it finds substantial and compelling reasons to depart. K.S.A.2014 Supp. 21–6815(c)(1) sets forth a nonexclusive list of mitigating factors a district court may consider when determining whether such reasons exist, including whether the victim was a participant in the crime and whether the degree of harm was significantly less than typical for the offense. Recinos–Gonzalez correctly points out that Kansas appellate courts previously have found it appropriate for a district court to consider whether the defendant was a threat to society and whether the victim participated in the crime as mitigating factors in sentencing a defendant. See State v. Sampsel, 268 Kan. 264, 281, 997 P.2d 664 (2000) (offense of aggravated indecent liberties with a child); State v. Grady, 258 Kan. 72, 87–88, 900 P.2d 227 (1995) (offense of voluntary manslaughter).
Recinos–Gonzalez argues that the mitigating factors at work in this case compelled a dispositional departure and that no reasonable person would have denied his request for probation. “But even though there may be mitigating factors, a district court is not required to depart simply because a mitigating factor exists.” State v. Rochelle, 297 Kan. 32, 45, 298 P.3d 293 (2013). Given that Recinos–Gonzalez was facing deportation and would not have been able to successfully participate in probation, as he acknowledged at sentencing, it cannot be said that no reasonable person would have denied a dispositional departure to probation. Recinos–Gonzalez was convicted of seven counts of sexually violent crimes calling for a presumptive sentence of imprisonment. Under the circumstances of this case, we are unable to find that the district court abused its discretion in denying Recinos–Gonzalez' motion for a dispositional departure to probation.
Affirmed.