Appellate courts apply the abuse of discretion standard in
reviewing a district court's sentencing order. A court
abuses its discretion if its decision is based on an error of
law or fact or if no reasonable person could agree with its
Under Jessica's Law, 2016 Supp. 21-6627(a), and with
limited exceptions, a sentencing court must sentence a
defendant who is 18 years or older and convicted of
aggravated indecent liberties with a child to life in prison
with no possibility of parole for 25 years. The court has the
discretion to impose a shorter sentence only if it
"finds substantial and compelling reasons, following a
review of mitigating circumstances." K.S.A. 2016 Supp.
evaluating a defendant's motion to depart from a
Jessica's Law sentence, the sentencing court must follow
the protocol set forth in State v. Jolly, 301 Kan.
313, Syl. ¶ 5, 342 P.3d 935 (2015), first by reviewing
the mitigating circumstances without any attempt to weigh
them against any aggravating circumstances, and then by
considering the facts of the case to determine whether the
mitigating circumstances constitute substantial and
compelling reasons to depart from an otherwise mandatory
Jessica's Law sentence.
Jessica's Law, K.S.A. 2016 Supp. 21-6627, makes no
provision for the weighing of aggravating circumstances
against the mitigating circumstances to determine if a
departure should be imposed. Nevertheless, the sentencing
court can consider the manner in which the defendant
committed the crime for which a sentence is being imposed and
the circumstances inherent in that crime.
Failure to follow the statutory method for considering a
departure from a Jessica's Law sentence is an error of
law and constitutes an abuse of discretion.
the record is ambiguous as to whether the sentencing court
weighed aggravating circumstances against mitigating
circumstances in considering a motion to depart from a
Jessica's Law sentence, the sentence should be vacated
and the case remanded for resentencing.
Whether a sentence is illegal because the sentence imposed
exceeded the sentencing court's jurisdiction is a
question of law over which an appellate court has unlimited
sentence of imprisonment combined with a no-contact order,
which is generally a condition of probation, is an illegal
sentence that must be vacated because it exceeds the
sentencing court's authority under K.S.A. 2016 Supp.
from Sedgwick District Court; Stephen J. Ternes, judge.
Sentence vacated and case remanded with directions.
Corrine E. Gunning, of Kansas Appellate Defender Office, for
A. Isherwood, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, for
McAnany, P.J., Malone, J., and Stutzman, S.J.
to a plea agreement with the State, Kurt Powell pled guilty
to aggravated indecent liberties with his daughter, a child
under the age of 14. The crime carries a presumptive sentence
of life imprisonment with no possibility of parole for 25
years. In turn, the State agreed to dismiss two additional
charges and agreed that Powell was free to seek a departure
from the presumptive hard 25 prison sentence.
moved for a downward durational departure from the
presumptive sentence to a shorter prison sentence of 29 1/2
months. He based his motion on the following claimed
mitigating factors: (1) his lack of a criminal history; (2)
the availability of rehabilitation programs and his
willingness to participate in them; (3) his work history and
supportive family; and (4) his truthfulness with police
during the course of the investigation.
district court took up Powell's motion at the sentencing
hearing. Dr. Robert Barnett, a psychologist, testified that
after conducting a clinical interview and mental health
examination of Powell, it was his opinion that Powell did not
suffer from any major mental health or substance abuse
disorders; that Powell had the capacity to understand and
learn from the consequences of his actions; and that Powell
would be a good candidate for a departure sentence based on
his work history, family support, lack of substance abuse,
and lack of criminal history. Barnett stated: "I'm
not quite sure how he could be a better candidate."
presented the testimony of a friend from church who testified
that he perceived Powell as a man "wanting help and
wanting to change." In addressing the court, Powell
stated that he was "deeply sorry for the pain and
suffering that my actions have caused" and accepted