Court of Appeals improperly considered aggravating factors and reweighed evidence

Janine Cox won in State v. Jolly, No. 106,680 (Kan. Feb. 20, 2015), obtaining affirmance of Judge Young's downward departure sentence in a Saline County statutory rape case.  The district court had considered the lack of any criminal history; that Mr. Jolly took responsibility for the crime by pleading  guilty and the resulting benefit to the victim by sparing her "further humiliation or embarrassment"; and Dr. Barnett's opinion that Jolly was at low risk to reoffend.

The state appealed and the COA reversed reasoning that the lack of criminal history alone was not sufficient to support a downward departure sentence, that the district court erred in using an inaccurate and incomplete report as the basis for a departure sentence and in finding Jolly took responsibility for the rape. Additionally, it found the aggravating factors of his being a 43-year-old, trusted family friend, with knowledge of the victim's prior sexual abuse, who decided to assume the role of a lover with her, outweighed his lack of criminal history.

The KSC applied the plain language of the Jessica's Law statute and held that it was different than other departure statutes that require weighing of aggravating and mitigating factors:

the language of the statute is straightforward: "[T]he sentencing judge shall impose the mandatory minimum term of imprisonment . . . unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure." (Emphasis added.) K.S.A. 21-4643(d). The statute makes no provision for the weighing of aggravating circumstances against the mitigating circumstances to determine if a departure should be imposed. In this way, the statute is unique as other sentencing statutes consider both mitigating and aggravating factors.

The KSC recognized that it had noted aggravating factors in previous Jessica's Law cases, but reversed any such case law: "we disapprove of any language in our caselaw that would indicate aggravating circumstances can be weighed against mitigating circumstances when considering a departure in a Jessica's Law sentencing."

Although the KSC clarified that the district court is not expected to sentence a defendant in a vacuum and will naturally consider aggravating factors when determining a sentence in general, it is not part of the departure analysis itself.  And more importantly, it is not part of the appellate review of a departure sentence.  The only question is whether substantial and compelling reasons support the departure.

The KSC went on to find that the COA had exceeded its standard of review by drawing its own conclusions regarding the evidence supporting mitigating factors:

Jolly again argues the majority exceeded its standard of review by reweighing the evidence concerning Dr. Barnett's evaluation before the district court. We agree. As observed by the dissent, no objection was made to Dr. Barnett's qualifications to testify as an expert, that he lacked a proper foundation for his opinion, or to his report being admitted into evidence. While Jolly clearly provided inaccurate or incomplete information to Dr. Barnett, the district court took those inaccuracies into account in weighing his testimony. By rejecting the district court's conclusion regarding the weight and veracity to be given to Dr. Barnett's testimony and report, the majority erroneously stood in the shoes of the sentencing judge and determined what it would have found.

Because the record contained sufficient evidence to support the district court's findings of mitigating factors, the KSC affirmed.