Review of the judgment of the Court of Appeals in an unpublished opinion filed November 9, 2012.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from Saline District Court; RENE S. YOUNG, judge.
BY THE COURT
1. Analysis of what circumstances can be considered during a Jessica's Law departure hearing involves the interpretation of K.S.A. 21-4643(d). Statutory interpretation is a question of law over which this court has unlimited review.
2. The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction.
3. The plain language of K.S.A. 21-4643(d), which makes no reference to aggravating circumstances or aggravating factors, instructs the sentencing court to conduct a review of the mitigating circumstances without balancing them against the aggravating ones.
4. We disapprove of any language in our prior caselaw that would indicate aggravating circumstances can be weighed against mitigating circumstances when considering a departure in a Jessica's Law sentencing.
5. The proper statutory method when considering a departure from a Jessica's Law sentence is for the sentencing court first to review the mitigating circumstances without any attempt to weigh them against any aggravating circumstances. Then, in considering the facts of the case, the court determines whether the mitigating circumstances rise to the level of substantial and compelling reasons to depart from the otherwise mandatory sentence. Finally, if substantial and compelling reasons are found for a departure to a sentence within the appropriate sentencing guidelines, the sentencing court must state on the record those substantial and compelling reasons.
6. In light of our interpretation of K.S.A. 21-4643(d), neither the district court nor an appellate court should weigh aggravating factors against mitigating factors in a Jessica's Law case.
7. An abuse of discretion standard applies to an appellate court's review of a district court's determination of whether mitigating circumstances presented under K.S.A. 21-4643(d) are substantial and compelling reasons for a departure sentence. A district court abuses its discretion when: (1) no reasonable person would take the view adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based.
8. When a discretionary decision requires fact-based determinations, a district court abuses its discretion when the decision is based on factual determinations not supported by the evidence. Substantial competent evidence is that which possesses both relevance and substance and furnishes a substantial basis of fact from which the issues can reasonably be resolved. In other words, substantial evidence is legal and relevant evidence that a reasonable person might accept as being sufficient to support a conclusion.
9. If the sentencing judge departs from the Jessica's Law mandatory minimum term of imprisonment, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure under K.S.A. 21-4643(d). This court has defined " substantial" in this context as 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.
10. While a single mitigating factor can be substantial and compelling enough to grant a departure from Jessica's Law, mitigating circumstances are not necessarily synonymous with substantial and compelling reasons under K.S.A. 21-4643(d).
11. In this case, the Court of Appeals majority opinion exceeded its standard of review by reweighing the evidence before the district court. An appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.
12. Each mitigating circumstance is not required to sufficiently justify a departure by itself, so long as the collective circumstances constitute a substantial and compelling basis for departure.
Christina M. Trocheck, assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellant.
Janine A. Cox, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellee.
MICHAEL J. MALONE, Senior Judge, assigned.
[301 Kan. 315] MICHAEL J. MALONE, J.
The State appealed the district court's imposition of a departure sentence from a Jessica's Law life sentence under K.S.A. 21-4643(a). In a split decision, the Court of Appeals, concluding there were no substantial and compelling reasons for granting the defendant's departure motion, reversed the district court and remanded the case for resentencing. State v. Jolly, 288 P.3d 159, 2012 WL 5519179, at *7 (Kan. App. 2012) (unpublished opinion). We granted defendant's petition for review. We reverse the Court of Appeals and affirm the district court.
On February 11, 2008, William Henry Jolly IV, a/k/a William Jolly, pleaded guilty to one count of rape of a child less than 14 years of age under K.S.A. 21-3502(a)(2) and (c). The sentencing judge found substantial and compelling reasons to grant Jolly's departure request and sentenced him to 300 months' imprisonment. Jolly appealed his sentence, arguing that the district court, in granting his departure request, failed to impose a sentence pursuant to the sentencing guidelines. We agreed and remanded the case for [301 Kan. 316] resentencing. See State v. Jolly, 291 Kan. 842, 847, 249 P.3d 421 (2011).
Following this court's remand, the district court again granted Jolly's request for a departure. He was sentenced to 165 months' imprisonment rather than the mandatory minimum of 25 years to life pursuant to K.S.A. 21-4643(d), the statute known as Jessica's Law. The State appealed, arguing the district court abused its discretion in concluding there were substantial and compelling reasons to depart. Jolly seeks review of the divided Court of Appeals opinion that concluded there were no substantial and compelling reasons for granting a departure. Jolly contends: (1) the Court of Appeals erroneously considered aggravating factors when considering the departure under K.S.A. 21-4643(d); and, (2) the Court of Appeals substituted its own findings for those made by the district court.
Factual and Procedural Background
On Sunday, July 15, 2007, 12-year-old C.E. came over to Jolly's home to play with Jolly's stepson. Jolly was 43 years old and had known C.E. and her family since C.E. was an infant. Jolly knew that C.E. had recently been sexually abused by her mother's boyfriend.
At some point during the visit, Jolly laid down on a bed in the basement and C.E. joined him. According to Jolly, he was curious how desensitized C.E. was from the previous sexual assault. He began touching her " to see how far she would let me go and watch her for any reactions." Jolly's touching of C.E. progressed to rubbing her vaginal area, inserting his finger into her vagina, and ultimately penetrating her vagina with his penis. When he heard a noise upstairs, it brought Jolly " back to reality" and he jumped off the bed. They went upstairs, and C.E. went home.
C.E. returned to Jolly's home the next day, and the two of them tickled and rubbed each other. Jolly nibbled on her neck and breasts. C.E. then asked Jolly why he did what he did to her the day before. Jolly told C.E. that what he did was wrong and it should never have happened.
[301 Kan. 317] A day later, C.E. told her grandmother, R.E., that Jolly had raped her while she was at his house. R.E. reported it to the Salina Police Department, and Jolly was interviewed by police the same day. In the interview and in a signed statement, Jolly admitted to both days' incidents.
Jolly was charged with one count of rape of a child less than 14 years of age, in violation of K.S.A. 21-3502(a)(2) and (c) and two counts of aggravated indecent liberties with a child less than 14 years old, in violation of K.S.A. 21-3504(a)(3)(A) and (c). On February 11, 2008, Jolly pleaded guilty to the rape charge and the State dismissed the other charges.
On October 21, 2008, Jolly moved for a departure sentence. Jolly had obtained an evaluation from Dr. Robert W. Barnett, a clinical psychologist. At the departure and sentencing hearing on October 24, 2008, Dr. Barnett testified that Jolly would be a good candidate for probation with relatively little or no danger to the community. Dr. Barnett was cross-examined about his opinion being based on Jolly's reported version of events which differed from what he had told ...