Fake victim can support downward departure sentence

Janine Cox won in State v. Valenzuela, No. 99,675 (June 26, 2009) (unpublished), affirming a downward durational departure sentence in a Shawnee County State's appeal. Mr. Valenzuela, who had learning disabilities and severe memory loss (due to a series of head traumas), was caught in an internet sting when he went to meet a woman who had been pretending to be a young girl in a chat room. Mr. Valenzuela pleaded no contest to one count of electronic solicitation of a child under the age of 14, a severity level 1 nondrug offense.

With a criminal history score of B, the presumptive sentence in this case was 554-586-618 months. The district court granted Valenzuela's motion for a downward durational departure, finding that Valenzuela's mental impairment and the fact that there was no real victim in this case were substantial and compelling reasons for departure. The district court also noted that Valenzuela had a “very supportive family” and he had taken responsibility and shown remorse for his actions. The court ordered a sentence of 120 months, the “same level as Mr. Valenzuela would have received had he enticed or solicited a real child, given his criminal history....” The 120-month sentence was equivalent to the sentence Valenzuela would have received for the severity level 5 crime of aggravated indecent solicitation of a child under K.S.A. 21-3511.

The COA affirmed the decision of the district court, holding:

Taken alone, the district court's finding that Valenzuela's capacity for judgment was lacking due to mental impairment is a substantial and compelling justification for departure. The district court's grant of a departure on this basis alone justifies a departure. The district court's finding that a departure is warranted due to the fact that there is no real victim in this case may constitute a substantial and compelling reason as well. Furthermore, the additional nonstatutory reasons provided by the district court may be grounds for departure if, taken as a whole, the reasons are substantial and compelling even if, taken in isolation, they would not support such a conclusion. See Blackmon, 285 Kan. at 725. For these reasons, the district court did not err in granting Valenzuela a durational departure from the presumptive sentence for his conviction of electronic solicitation. [Emphasis added].

The COA also held that the extent of the departure was not excessive. This is a nice opinion because the court agrees with what is essentially a proportionality attack on the sentence for electronic solicitation of a child under K.S.A. 21-3523. How can soliciting a fake child on the internet to do an unlawful sexual act be a severity level 1 offense, but soliciting a real child, in person, to do an unlawful sexual act is a severity level 5 offense? This question presents a nice argument for a departure, but it should also be the basis for a constitutional attack under Section 9 of the Kansas Constitution Bill of Rights, as we've been encouraging in Jessica's Law cases.

[Update: the state did not file a PR and the mandate issued on July 30, 2009.]