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State v. Powell

Court of Appeals of Kansas

March 17, 2017

State of Kansas, Appellee,
v.
Kurt Powell, Appellant.

          SYLLABUS

          1. 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 decision.

         2. 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. 21-6627(d)(1).

         3. In 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.

         4. 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.

         5. 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.

         6. When 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.

         7. 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 review.

         8. A 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. 21-6604(a).

         Appeal from Sedgwick District Court; Stephen J. Ternes, judge. Sentence vacated and case remanded with directions.

          Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

          Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before McAnany, P.J., Malone, J., and Stutzman, S.J.

          McAnany, J.

         Pursuant 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.

         Powell 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.

         The 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."

         Powell 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 complete ...


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