BY THE COURT
departure sentences are made appealable by K.S.A. 21-4721(a)
unless appellate jurisdiction is divested by a more specific
district court's decision to deny a departure request
will not be reversed unless an appellate court determines
that the district court's findings of fact are
unsupported by substantial competent evidence or that its
consideration of mitigating factors and/or aggravating
factors constituted an abuse of discretion.
of the judgment of the Court of Appeals by order filed August
from Sedgwick District Court; Phillip B. Journey, judge.
Catherine A. Zigtema, of Maughan & Maughan LC, of
Wichita, and Carl F.A. Maughan, of the same firm, were on the
brief for appellant.
A. Isherwood, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
Ibarra pled guilty to two counts of aggravated indecent
liberties with a child. Between December 19, 2010, and
January 4, 2011, Ibarra-who was 23 years old at the time-had
sex multiple times with a 15-year-old girl who was his former
wife's stepsister. Prior to sentencing, Ibarra filed
separate motions for dispositional and durational departures,
citing mitigating factors such as his young age at the time
of the crimes; the consensual nature of the sexual
relationship; and his ongoing treatment. Prior to sentencing,
the district court held an evidentiary hearing on the
motions, during which a psychologist who examined Ibarra
sentencing on August 10, 2012, the court determined that
Ibarra had a criminal history score of D because of a prior
juvenile conviction for aggravated criminal sodomy, which
Ibarra committed when he was 11 years old. His two current
convictions placed him in a presumptive prison sentence range
with a high of 100 months and a low of 89 months. See K.S.A.
2010 Supp. 21-3504(c); K.S.A. 2010 Supp. 21-4704. Relying on
the psychologist's testimony, the court granted Ibarra a
downward durational departure to 61 months' imprisonment
on each count. The court found that Ibarra suffered from
"some mental impairment lacking substantial capacity for
judgment." It also noted that the degree of harm in this
case was "significantly less than is typical of such an
offense based upon the unique circumstances in this
case." The court ordered the counts to run concurrently,
resulting in a total prison term of 61 months. It further
informed Ibarra that he was required to register as a sex
offender for the remainder of his life pursuant to the Kansas
Offender Registration Act (KORA), K.S.A. 22-4901 et
seq. Ibarra appealed.
appeal, Ibarra argued that the district court erred by
denying his motion for a dispositional departure to
probation. He also argued for the first time that retroactive
application of KORA's lifetime registration period
violated the Ex Post Facto Clause. After issuing an order to
show cause and considering Ibarra's response, the Court
of Appeals summarily affirmed the district court's
imposition of lifetime registration because Ibarra was
raising his ex post facto challenge for the first time on
appeal. The Court of Appeals summarily dismissed the
remaining issue for a lack of jurisdiction because the
district court had not departed adversely to Ibarra. We
granted his petition for review.
now reprises the arguments he advanced below. Generally,
constitutional claims cannot be raised for the first time on
appeal. State v. Godfrey, 301 Kan. 1041, 1043, 350
P.3d 1068 (2015). Because Ibarra complied with the mandate in
Supreme Court Rule 6.02(a)(5) (2017 Kan. S.Ct. R. 34) and
invoked one of the exceptions to this general rule, we will
briefly address the merits of his ex post facto claim.
Recently, we explicitly held that "[r]egistration for
sex offenders mandated by the Kansas Offender Registration
Act . . . does not constitute punishment under the Ex Post
Facto Clause of the United States Constitution."
State v. Reed, 306 Kan. 899, Syl., 399 P.3d 865
(2017). Because Ibarra is a sex offender, Reed
dictates that his constitutional claim must fail.
Ibarra's lifetime registration requirement does not
violate the Ex Post Facto Clause.
Ibarra contends that the Court of Appeals erred by dismissing
his dispositional departure argument for lack of jurisdiction
under State v. Crawford, 21 Kan.App.2d 169, 170, 897
P.2d 1041 (1995) ("We interpret the KSGA to limit
appellate jurisdiction by either the State or the defendant
to those instances in which the sentencing court has departed
adversely to the appealing party."). After the Court of
Appeals entered its ruling in this case, we overturned
Crawford in State v. Looney, 299 Kan. 903,
909, 327 P.3d 425 (2014). In Looney, the defendant
was granted a downward durational departure but denied a
dispositional departure. After the Court of Appeals
determined that appellate jurisdiction was lacking, we
reversed, holding that "all departure sentences are
subject to appeal under K.S.A. 21-4721(a) unless appellate
jurisdiction is divested by a more specific provision."
299 Kan. at 909. As such, the Court of Appeals erred when it
dismissed Ibarra's claim that the district court should
have granted him a dispositional departure to probation.
than remand to the Court of Appeals, we will-in the interest
of judicial economy-consider the merits of Ibarra's
claim. A district court's decision to deny a departure
will not be reversed unless this court determines that
"the district court's findings of fact are
unsupported by substantial competent evidence or that its
consideration of mitigators and/or aggravators constituted an
abuse of discretion." State v. Floyd, 291 Kan.
859, 862, 249 P.3d 431 (2011); see State v. Floyd,
296 Kan. 685, 687, 294 P.3d 318 (2013) ("This court
employs an abuse of discretion standard when reviewing a
district court's decision on a departure motion.").
Substantial evidence is evidence that a reasonable person
could accept as being adequate to support a conclusion.
State v. Mattox, 305 Kan. 1015, 1035, 390 P.3d 514
(2017). "'A district court abuses its discretion if
its decision is ...