Opinion
110,912.
10-31-2014
STATE of Kansas, Appellee, v. Danys VARELA–VELASQUEZ, Appellant.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., BRUNS, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Danys Varela–Velasquez appeals the district court's decision to sentence him to 26 months' imprisonment after he pled no contest to one count of indecent liberties with a child. Although the district court granted Varela–Velasquez a downward durational departure from the sentencing guidelines, he contends that he should have also been granted a downward dispositional departure to probation. Because the record reflects that the district court did not abuse its discretion in granting a durational departure while denying a dispositional departure, we affirm Varela–Velasquez' sentence.
Facts
In May 2013, the State charged Varela–Velasquez with one count of aggravated indecent liberties with a child. On September 30, 2013, pursuant to a plea agreement, Varela–Velasquez pled no contest to an amended count of indecent liberties with a child. At the time of the incident, Varela–Velasquez was 29 years old and the victim was 14 years old. The district court accepted the plea and adjudged Varela–Velasquez guilty of indecent liberties with a child.
The terms of the plea agreement stated that Varela–Velasquez would not contest the amended charge in exchange for the State's recommendation of presumptive imprisonment for the middle number in the appropriate gridbox of the sentencing guidelines. Although the plea agreement permitted Varela–Velasquez to request an alternative disposition, the State reserved the right to oppose any such request. Moreover, the plea agreement indicated that Varela–Velasquez' postrelease supervision term would be for life, and he was informed that he could be deported from the United States for this conviction based on his immigration status.
Before sentencing, Varela–Velasquez filed a motion to impose a dispositional and/or durational departure sentence. In his motion, Varela–Velasquez argued that he should receive a departure sentence because his crime was not one of extreme sexual violence and the victim had lied to him about her age. Varela–Velasquez asserted that he had no criminal history and argued that he did not pose a violent threat to society. He also argued that the crime did not involve violence or physical injury to the victim.
Varela–Velasquez maintained that there was no “ ‘aberrant behavior’ “ displayed because he did not have a history of committing this type of crime. In addition, Varela–Velasquez noted that a sex offender evaluation indicated that he was a “ ‘strong candidate for specific sex offender treatment’ “ due to his acceptance of responsibility, his desire for discipline, and his desire to avoid making mistakes in the future. Accordingly, it was Varela–Velasquez' contention that all of these factors amounted to substantial and compelling reasons to depart.
At the sentencing hearing, Varela–Velasquez repeated the arguments set forth in his departure motion. Moreover, he pointed out that the police report showed that the victim admitted she had told Varela–Velasquez she was 17 years old. Defense counsel also advised the district court that Varela–Velasquez had already served 5½ months in prison. In response, the State argued that although Varela–Velasquez claimed to have accepted full responsibility, he pled no contest as opposed to pleading guilty and he was blaming the victim for not being candid with him about her age. The State also reminded the district court that under the plea agreement, the State amended the charges from intercourse to fondling and that Varela–Velasquez had been picking the victim up from the high school during her lunch hour.
The district court granted Varela–Velasquez a downward durational departure from a presumptive sentence of 31–34 months in prison to 26 months' imprisonment based on the degree of harm being less than typical and the lack of criminal history. However, the district court denied Varela–Velasquez' request for a downward dispositional departure. In addition, Varela–Velasquez was placed on lifetime postrelease supervision. Subsequently, he timely appealed his sentence.
Analysis
On appeal, Varela–Velasquez contends that although the district court granted him a downward durational departure, the district court also should have granted a downward dispositional departure to probation. We review a district court's decision on a departure motion for abuse of discretion. State v. Spencer, 291 Kan. 796, 807–08, 248 P.3d 256 (2011). A judicial action constitutes an abuse of discretion only 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).
At sentencing, the district court considered the facts and the arguments of counsel. Although the district court concluded that two factors amounted to substantial and compelling reasons for a downward durational departure—the degree of harm and criminal history—it also found that Varela–Velasquez did not try very hard to determine the victim's actual age. In support of this finding, the district court also noted the allegations contained in the affidavit of probable cause filed in the case.
Accordingly, we find that the district court's decision regarding dispositional departure was not arbitrary, fanciful, or unreasonable. Moreover, the district court's decision was not based on an error of fact or law. We, therefore, conclude that the district court did not abuse its discretion in denying Varela–Velasquez' request for a dispositional departure to probation.
Affirmed.