State v. Jolly

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 106,680

STATE OF KANSAS,
Appellant,

v.

WILLIAM JOLLY,
Appellee.

SYLLABUS 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.

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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.

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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.

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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.

Review of the judgment of the Court of Appeals in an unpublished opinion filed November 9,
2012. Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed February 20, 2015.
Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is
affirmed.

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.

The opinion of the court was delivered by

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, No. 106,680, 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
4
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
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

5
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.

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 the police. Admitting Jolly's inaccuracies lessened
the seriousness of the offense, Dr. Barnett did not change his opinion.

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 The district court granted Jolly's departure request from the mandatory sentence
and imposed a sentence of 300 months' imprisonment with lifetime postrelease
supervision. The State did not appeal the granting of the departure motion, but Jolly did
appeal his sentence. In Jolly, 291 Kan. at 847, this court reversed and remanded for
resentencing finding that the district court, in granting the departure, failed to follow the
statutory requirements in setting the amount of time of imprisonment.

On July 1, 2011, the resentencing hearing was held. Jolly again asked the court to
grant his departure request. Jolly relied on the same evidence and arguments that were
successful at the original sentencing; i.e., (1) he had no prior record, (2) Jolly's admission
and cooperation were meant to prevent any further harm or trauma to C.E., and (3) Dr.
Barnett's evaluation indicated that Jolly took responsibility for his actions and was not a
risk to the community.

The State opposed the motion, arguing that the only mitigating factor the court
could consider under K.S.A. 21-4643(d)(1) was Jolly's lack of a criminal history. In
addition, the State contended "the facts in this case would constitute aggravating
circumstances here." The State acknowledged Jolly's plea avoided the need to have C.E.
testify and then urged the court to deny the departure request. "[B]ut when you consider
that isolated factor and the factor of his [lack of a] prior criminal history and you weigh it
with the egregious facts of this case, the State submits that clearly there's no substantial
and compelling reasons to support a downward departure." Finally, the State argued Dr.
Barnett's recommendations were based on Jolly's version of events in which he denied
having sexual intercourse with C.E.

Stating she had considered the arguments by Jolly and the State, the district judge
found substantial and compelling reasons to depart. The judge based her decision on
Jolly's lack of any criminal history; his taking responsibility for the crime by pleading
7
guilty and the resulting benefit to C.E. by sparing her "further humiliation or
embarrassment"; and Dr. Barnett's opinion that Jolly was at low risk to reoffend.

Then the judge imposed the aggravated sentence on the sentencing grid for a
severity level 1 offense and a criminal history score of I, 165 months' imprisonment,
followed by lifetime postrelease supervision.

This time, the State appealed, claiming the factors relied on by the district court
judge did not constitute substantial and compelling reasons to support a sentencing
departure. In a divided Court of Appeals opinion, the majority reversed the sentence,
reasoning that the lack of criminal history alone was not sufficient to support a downward
departure sentence. Jolly, 2012 WL 5519179, at *4. The majority reasoned 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. 2012 WL 5519179, at *5-7.
Additionally, it found the aggravating factors of his being a 43-year-old, trusted family
friend, with knowledge of C.E.'s prior sexual abuse, who decided to assume the role of a
lover with her, outweighed his lack of criminal history. 2012 WL 5519179, at *7.

The concurring opinion joined with the majority but noted this court regularly
considers aggravating circumstances in our caselaw or at least all the circumstances of
the case. Jolly, 2012 WL 5519179, at *9 (Buser, J., concurring). The concurrence opined
that the district court did not understand "that the mitigating circumstances could be
substantial and compelling only when weighed against the aggravating circumstances of
this particular case." 2012 WL 5519179, at *10 (Buser, J., concurring). Further, the
concurring opinion stated that even if the district court applied the correct standard, there
was an abuse of discretion where the mitigating circumstances were ephemeral when
considered in context, especially Dr. Barnett's report and Jolly's acceptance of
responsibility. 2012 WL 5519179, at *10 (Buser, J., concurring).
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 The dissenting opinion found the majority improperly reweighed the evidence
concerning the departure factors of Dr. Barnett's report and Jolly's taking responsibility
for the crime. Jolly, 2012 WL 5519179, at *11-12 (McAnany, J., dissenting).
Additionally, the dissent stated it was: (1) inappropriate for the majority to find that
aggravating factors outweighed Jolly's lack of a criminal record; (2) inappropriate for the
appellate court to weigh aggravating factors against mitigating factors; and, if
appropriate, a function of the district court; and (3) inappropriate to consider aggravating
factors at all. The dissent questioned how the weighing of aggravated factors against
mitigating factors ever became part of the caselaw because that balancing is not found in
the Jessica's Law statute. 2012 WL 5519179, at *12-14 (McAnany, J., dissenting).

Jolly petitioned this court for review, arguing the Court of Appeals majority
substituted its own findings for those of the district court and asking for a resolution to
the split of opinion between the majority, concurrence, and dissent. We granted review
and ordered the parties to file supplemental briefs addressing whether it is appropriate for
the district court to consider aggravating circumstances in considering a departure from a
Jessica's Law sentence, and if so, the method or manner in which those circumstances
should be considered.

WHAT CIRCUMSTANCES ARE TO BE CONSIDERED FOR A JESSICA'S
LAW DEPARTURE?

Standard of Review

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. State v.
Holt, 298 Kan. 469, 474, 313 P.3d 826 (2013).
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The Statute: Jessica's Law, K.S.A. 21-4643

At the time of Jolly's offense, Jessica's Law, K.S.A. 21-4643, provided that the
mandatory minimum term of imprisonment for a first time conviction of rape under
K.S.A. 21-3502(a)(2) and (3) was 25 years' imprisonment. As this was Jolly's first
offense, K.S.A. 21-4643(d) granted the district court the authority to impose a departure
under certain circumstances:

"On or after July 1, 2006, for a first time conviction of an offense listed in
paragraph (a)(1), the sentencing judge shall impose the mandatory minimum term of
imprisonment provided by subsection (a), unless the judge finds substantial and
compelling reasons, following a review of mitigating circumstances, to impose a
departure. If the sentencing judge departs from such 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. The departure sentence shall be the sentence
pursuant to the sentencing guidelines act, K.S.A. 21-4701 et seq., and amendments
thereto, and no sentence of a mandatory minimum term of imprisonment shall be
imposed hereunder. As used in this subsection, mitigating circumstances shall include,
but are not limited to, the following:

"(1) The defendant has no significant history of prior criminal activity.
"(2) The crime was committed while the defendant was under the influence of
extreme mental or emotional disturbances.
"(3) The victim was an accomplice in the crime committed by another person,
and the defendant's participation was relatively minor.
"(4) The defendant acted under extreme distress or under the substantial
domination of another person.
"(5) The capacity of the defendant to appreciate the criminality of the defendant's
conduct or to conform the defendant's conduct to the requirements of law was
substantially impaired.
"(6) The age of the defendant at the time of the crime."
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The Plain Language of K.S.A. 21-4643(d)

As now presented, Jolly essentially asks this court to adopt the reasoning of the
dissent, i.e., the weighing of aggravating factors against mitigating factors is not found in
the plain language of the statute and its use in our caselaw is erroneous. The State asks us
to adopt the reasoning of the concurrence, i.e., our caselaw routinely considers
aggravating circumstances and the court must be able to consider all the facts of the case,
whether called aggravating circumstances or something else, in order to determine if
there are substantial and compelling reasons to depart.

"The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained." State v. Kendall, 300 Kan. 515, 520,
331 P.3d 763 (2014). "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." State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).

Jolly argues K.S.A. 21-4643(d) is plain and unambiguous, and the State does not
assert otherwise. Indeed, 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. See
K.S.A. 21-4716(c)(1) and (c)(2) (nonexclusive list of aggravating and mitigating factors
to consider when considering departure from presumptive sentence under Kansas

11
Sentencing Guidelines Act [KSGA]); see also sentencing for capital crimes K.S.A. 21-
4624(c); K.S.A. 21-4625 (listing aggravating circumstances); K.S.A. 21-4626 (listing
mitigating circumstances).

In State v. Spencer, 291 Kan. 796, 809, 248 P.3d 256 (2011), we discussed the
differences in these sentencing statutes when compared to K.S.A. 21-4643(d) and
explained why a Jessica's Law departure does not involve a balancing of mitigating and
aggravating factors:

"On structure, no balance between mitigators and aggravators such as that
implied in K.S.A. 21-4716 or explicitly provided for in K.S.A. 21-4624(e) or K.S.A. 21-
4635(b)-(d) is necessary when Jessica's Law is the starting point. The only way for
Jessica's Law to operate is to intensify, if not lengthen, a sentence. It makes 25 years a
mandatory minimum, unless certain mitigators justify a departure. Simply put, there is
nowhere to go but to a less-intense place."

We are aware that both before and after our decision in Spencer, our cases have
discussed the weighing of aggravating factors in Jessica's Law cases. See, e.g., State v.
Remmert, 298 Kan. 621, 630, 316 P.3d 154 (2014) (court considers mitigating
circumstances and then weighs against any aggravating circumstances); State v. Seward,
289 Kan. 715, 722, 217 P.3d 443 (2009) (district judge reviewed mitigating and
aggravating factors advanced, engaging in appropriate weighing of competing
considerations). However, we now clarify that 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.

Accordingly, we disapprove of any language in our caselaw that would indicate
aggravating circumstances can be weighed against mitigating circumstances when
12
considering a departure in a Jessica's Law sentencing. See, e.g., Remmert, 298 Kan. at
630 (district court considers mitigating circumstances and then weighs against any
aggravating circumstances); State v. Florentin, 297 Kan. 594, 598, 303 P.3d 263 (2013)
(district court reviews mitigating circumstances and then weighs those circumstances
against norm defined by legislature and any aggravating circumstances); State v. Salinas,
294 Kan. 743, 749, 280 P.3d 221 (2012) (even though there were mitigating factors to be
weighed, there were significant offsetting aggravating factors); State v. Baptist, 294 Kan.
728, 734, 280 P.3d 210 (2012) (district court does not simply add together total number
of mitigating circumstances and then contrast them with total number of aggravating
circumstances); State v. Roberts, 293 Kan. 1093, 1098, 272 P.3d 24 (2012) (district court
complied with its duty to review both mitigating and aggravating circumstances);
Seward, 289 Kan. at 722 (district judge orally reviewed mitigating and aggravating
factors advanced, engaging in appropriate weighing of competing considerations).

Departure Considerations

Even though the plain language of K.S.A. 21-4643(d) does not indicate the district
court should weigh the aggravating circumstances against the mitigating circumstances in
considering a Jessica's Law departure, the district court is not restricted to considering
only the mitigating circumstances of the case. And, even though mitigating circumstances
must be present for a finding of substantial and compelling reasons, mitigating
circumstances do not necessarily equal substantial and compelling reasons. In State v.
Ortega-Cadelan, 287 Kan. 157, 164, 194 P.3d 1195 (2008), we rejected an argument that
each mitigating factor constituted a per se substantial and compelling reason for a
departure sentence:

"Here, the statutory language regarding the consideration of mitigating
circumstances is clear and unambiguous, stating the judge shall impose a life sentence
'unless the judge finds substantial and compelling reasons, following a review of
13
 mitigating circumstances, to impose a departure.' K.S.A. 2006 Supp. 21–4643(d).
Contrary to [defendant's] argument, this language does not make 'mitigating
circumstances' synonymous with 'substantial and compelling reasons.' Rather, there is a
two-step procedure: first, the judge reviews mitigating circumstances; second, the judge
must determine if there are substantial and compelling reasons for a departure."

In determining if substantial and compelling reasons for departure exist,"[t]his
court has defined 'substantial' as 'something that is real, not imagined; something with
substance and not ephemeral,' while 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.'"
(Emphasis added.) Seward, 289 Kan. at 722 (quoting State v. McKay, 271 Kan. 725, 728,
26 P.3d 58 [2001]).

While K.S.A. 21-4643(d) does not allow a weighing of aggravating factors against
mitigating factors, the facts of the case—including any egregious ones—are essential for
a judge to consider in deciding if a departure is warranted based on substantial and
compelling reasons. Simply stated, a judge does not sentence in a vacuum. The
sentencing judge is to consider information that reasonably might bear on the proper
sentence for a particular defendant, given the crime committed, including the manner or
way in which an offender carried out the crime. This includes those "circumstances
inherent in the crime and the prescribed sentence." See Florentin, 297 Kan. at 598.
Provided the sentence imposed is within the statutory limits, "'[i]t is the sentencing judge
alone who determines the appropriate sentence to be imposed or other disposition of the
case by exercising his or her best judgment, common sense, and judicial discretion after
considering all of the reports, the defendant's background, the facts of the case, and the
public safety.'" (Emphasis added.) State v. Frecks, 294 Kan. 738, 742, 280 P.3d 217
(2012) (quoting State v. Vanderveen, 259 Kan. 836, 842, 915 P.2d 57 [1996]).

14
 In view of the above, the proper statutory method when considering a departure
from a Jessica's Law sentence is for the district 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 district
court must state on the record those substantial and compelling reasons.

Application to Jolly

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. The district court should follow the steps outlined above, and the appellate
court reviews the district court's ruling on the departure decision under an abuse of
discretion standard. See Florentin, 297 Kan. at 599. Although the Court of Appeals
majority engaged in this inappropriate weighing of factors in this case, the district court
applied the correct analysis. Accordingly, we next consider whether substantial and
compelling reasons supported the district court's imposition of a departure sentence.

DID THE COURT OF APPEALS ERR IN REVERSING THE DISTRICT COURT'S FINDING THAT
SUBSTANTIAL AND COMPELLING REASONS EXISTED FOR GRANTING A DEPARTURE
SENTENCE?

Standard of Review

"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." State v.
Ballard, 289 Kan. 1000, Syl. ¶ 8, 218 P.3d 432 (2009). "A district court abuses its
15
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." State v. Smith, 299
Kan. 962, 970, 327 P.3d 441 (2014).

"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." State v. Gonzalez, 290 Kan. 747, 757, 234 P.3d 1 (2010). Substantial
competent evidence is that which "'possesses both relevance and substance and which
furnishes a substantial basis of fact from which the issues can reasonably be resolved. In
other words, substantial evidence is such legal and relevant evidence as a reasonable
person might accept as being sufficient to support a conclusion.'" 290 Kan. at 757
(quoting Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 2, 136 P.3d 390 [2006], cert. denied 549
U.S. 1278 [2007]).

Analysis

At the resentencing hearing, the district court considered the same evidence that
Jolly presented at the original sentencing and once again found substantial and
compelling reasons to depart. Jolly was sentenced to 165 months' imprisonment with
lifetime postrelease supervision for his conviction of rape of a child less than 14 years of
age. See K.S.A. 21-3502(a)(2) and (c). This time the State appealed, claiming the district
court abused its discretion by finding substantial and compelling reasons to grant Jolly a
departure. In a split decision, the Court of Appeals reversed and remanded to the district
court for a third sentencing hearing. State v. Jolly, No. 106,680, 2012 WL 5519179, at *7
(Kan. App. 2012) (unpublished opinion). Jolly contends the Court of Appeals' majority
and concurrence improperly reweighed the evidence and substituted its own findings for
those of the district court in reversing on appeal.

16
 K.S.A. 21-4643(d) sets forth a nonexclusive list of mitigating circumstances for
consideration in a Jessica's Law departure. "If the sentencing judge departs from such
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." K.S.A. 21-
4643(d). As discussed above, "[t]his court has defined 'substantial' as 'something that is
real, not imagined; something with substance and not ephemeral,' while 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.'" Seward, 289 Kan. at 722 (quoting State v. McKay,
271 Kan. 725, 728, 26 P.3d 58 [2001]).

In granting Jolly's departure request, the district court relied on one statutory
factor, Jolly's lack of criminal history; and two nonstatutory factors, his taking
responsibility for the crimes and Dr. Barnett's psychological report. We review each in
turn.

1. Lack of Criminal History

The first mitigating factor cited by the district court was Jolly's lack of criminal
history under K.S.A. 21-4643(d)(1):

"The Court has considered the arguments made by the defendant and the
arguments made by the State, and the Court is going to find in this case that there are
substantial and compelling reasons to grant a departure to a guideline sentence in this
case. Those reasons are that the defendant has—the first is, the defendant's lack of
criminal history. In looking at the defendant's criminal history worksheet, apparently, he
has been convicted of no criminal offenses in the past, and the Court does believe that is
significant. And one of the reasons is the Court—that does lead the Court to believe that,
at least—well, the defendant was 43 years old when the offenses were committed, and
that would lead the Court to believe that the defendant has had the ability in the past,
17
 anyway, to control his actions, which would hopefully make it less likely for the
defendant to re-offend in the future since he has demonstrated some ability to control
himself in the past."

On appeal, the Court of Appeals majority discounted the significance of his lack of
criminal history:

"There is no evidence in the record on appeal that Jolly controlled his actions in the past,
and there is certainly no evidence of what he will or will not do in the future. The
evidence is only that he did not have a criminal history. We find that the lack of criminal
history is a factor to be considered but it alone is not a substantial and compelling reason
for a downward departure sentence, especially because of the facts of this case." Jolly,
2012 WL 5519179, at *4.

The dissent commented the majority was asking Jolly to prove a negative, and no
evidence established that Jolly had previously engaged in this course of conduct, with
C.E. or any other child, prior to his conviction. 2012 WL 5519179, at *11 (McAnany, J.,
dissenting). Judge McAnany noted that "[t]he legislature specifically identified as a
mitigating factor the fact that the defendant has no significant criminal history. See
K.S.A. 21-4643(d)(1)." 2012 WL 5519179, at *11 (McAnany, J., dissenting).

Even though the majority minimized the importance of this statutorily expressed
mitigator—Jolly's lack of criminal history—both the majority and the dissent concluded
Jolly's lack of a criminal history was a mitigating factor to be considered. We agree.

While a single mitigating factor can be substantial and compelling enough to grant
a departure from Jessica's Law, State v. Rochelle, 297 Kan. 32, 47, 298 P.3d 293, cert.
denied 134 S. Ct. 270 (2013), "mitigating circumstances" are not necessarily synonymous
with "substantial and compelling reasons" under the statute. State v. Thomas, 288 Kan.

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157, 163, 199 P.3d 1265 (2009). In this case, the district judge did not limit her analysis
to Jolly's lack of criminal history but considered other mitigating factors in determining if
a departure was warranted. We elect to do the same.

2. Taking Responsibility for the Crime

A second nonstatutory mitigating factor relied on by the district court was that
Jolly took responsibility for his crimes by pleading guilty to rape:

"[T]he defendant did take responsibility for his actions in this case. He did enter a plea. I
can't recall if it was guilty or no contest, but the defendant did accept responsibility for
his actions, and the [victim] was not required to testify at trial and was not subject to, you
know, further humiliation or embarrassment or further traumatized by that, by being
required to testify at trial."

On appeal, the majority acknowledged Jolly's plea but discounted its significance
because: (1) the plea agreement allowed him to avoid a trial; (2) Jolly later denied raping
C.E. during his evaluation; (3) Jolly asked for leniency asserting he did nothing wrong;
and (4) Jolly never apologized to C.E. 2012 WL 5519179, at *6-7. Consequently, it
concluded the district court abused its discretion by finding that Jolly took responsibility
for the rape.

The dissent disagreed, reasoning the district court heard and obviously rejected
Jolly's protestations of innocence. It observed the district court confined its analysis to the
fact that Jolly pled guilty to the crime and spared his young victim from having to testify
in a public trial. 2012 WL 5519179, at *12 (McAnany, J., dissenting).

We agree with Jolly's assertion that the majority opinion exceeded its standard of
review by reweighing the evidence before the district court. See State v. Reed, 300 Kan.
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494, 499, 332 P.3d 172 (2014) ("An appellate court does not reweigh the evidence, assess
the credibility of the witnesses, or resolve conflicting evidence."). Regardless of his
motives, Jolly spared C.E. from having to testify by pleading guilty. In addition, Jolly's
plea of guilty was an admission that he committed the crime against C.E. See K.S.A. 22-
3209(1) ("A plea of guilty is admission of the truth of the charge and every material fact
alleged therein."). In other words, on the record and in the presence of the eventual
sentencing judge, Jolly accepted responsibility for his actions. "[A]cceptance of
responsibility can be a mitigating factor in support of a departure" under the KSGA. State
v. Bird, 298 Kan. 393, 398, 312 P.3d 1265 (2013).

Substantial competent evidence supports the district court's factual finding that
Jolly took responsibility for his crime. We find no abuse of discretion in the district court
relying on this factor as a mitigating circumstance.

3. Dr. Barnett's Report

The final nonstatutory mitigating factor relied on by the district court was the
opinions rendered by Dr. Barnett that Jolly was not a risk to the community. Dr. Barnett
conducted a psychological evaluation of Jolly on June 30, 2008. Although Jolly had
previously admitted to the rape in a police interview and signed a statement reflecting the
same, he told Dr. Barnett that he only touched C.B.'s breasts and vagina but denied
having intercourse with her. Jolly also told Barnett that he pled guilty to raping C.B.

Dr. Barnett testified at the first sentencing hearing. The discrepancies between
Jolly's version of events and what Jolly had previously admitted to were explored by the
State on cross-examination, e.g., C.B. was 12 years old, not 13; and Jolly inserted his
penis in her vagina, not just penetrated her with his fingers. Dr. Barnett opined that this

20
information might have some impact on his recommendation but he did not want to
speculate. The district court made the following findings regarding Dr. Barnett's report:

"The Court has reviewed Dr. Barnett's report and the Court does take into
consideration the State's statement that the defendant was not fully—was not completely
truthful with him. But the court did note some other matters in Dr. Barnett's report, and
that was that the defendant had been employed for some time at the time of this offense.
Dr. Barnett did not find any evidence of the defendant having any anti-social behaviors.
The defendant did not have any previous history of being molested himself, which I think
we all know can be significant because frequently those who have been sexually
molested are more apt to re-offend. Dr. Barnett found that the defendant did not have any
history of mental illness and he did not diagnose him with any psychological disorder.
The Court does believe that for those reasons the defendant would present less of a
danger to society than an individual that did have a long history of mental illness or had
anti-social behaviors. Dr. Barnett found that the defendant did not possess the traits of a
pedophile or of a sexual predator. So, for those reasons, the Court is going to find in this
case that there are substantial and compelling reasons to grant the defendant the departure
in this case to a guideline sentence." (Emphasis added.)

On appeal, the majority found the court's reliance on this report was erroneous:

"Jolly's description of the crime is totally false. In his testimony at the original
sentencing, Dr. Barnett stated, 'Mr. Jolly does not appear to have a history of sexual
offending, of being accused or suspected of molesting adolescents or children.' Dr.
Barnett also testified, 'It's impossible for me to know in this case what impact it had on
the victim. That's really not my charge in this case.' Dr. Barnett's conclusions were based
on Jolly's description of his 'crime,' other information supplied by Jolly, and no
consideration of what his crime did to C.E. Dr. Barnett never saw the police report. . . .
....
"Because Dr. Barnett did not have critical information, Dr. Barnett did not have
'the full picture' when he wrote his report. Dr. Barnett's lack of information casts doubt on
his entire evaluation. The resentencing court erred in using an inaccurate and incomplete
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 report as the basis for the departure sentence. Dr. Barnett's report does not satisfy the
requirement of a substantial and compelling reason for the departure." Jolly, 2012 WL
5519179, at *5.

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. See Jolly, 2012 WL 5519179, at *11-12 (McAnany, J.,
dissenting). 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. See State v. Coleman, 275
Kan. 796, 809, 69 P.3d 1097 (2003) (Court of Appeals improperly reweighed evidence
and reached different conclusion than did trial court).

The district court focused on the portion of Dr. Barnett's psychological report and
testimony which showed that Jolly displayed no signs of mental disease or defect, that he
had no history of alcohol or drug abuse, that he had long employment and a stable
relationship with his wife, that he exhibited no signs of pedophilia or sexual predation,
that he was unlikely to reoffend, and that he might be a good candidate for probation with
psychotherapy and medication. It is clear from the record that the district court was fully
aware of both the inaccuracies in Dr. Barnett's report and the facts of the case but found
Dr. Barnett's opinions credible. Substantial competent evidence thus supports the district
court's reliance on Dr. Barnett's opinion that Jolly did not present a risk to the
community. Accordingly, the district judge did not abuse her discretion by relying upon
this opinion as a mitigating factor.

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 4. Substantial and Compelling Reasons to Depart

As substantial competent evidence supports the mitigating circumstances relied on
by the district court, we shift our review to whether the evidence constituted substantial
and compelling reasons to depart under K.S.A. 21-4643(d). Unlike the Court of Appeals
majority, the district court did not weigh the aggravating factors against the mitigating
factors. In properly following the Jessica's Law statute, the district court first reviewed
the mitigating circumstances of the case: Jolly's age along with his absence of criminal
record; his pleading guilty to the crime; and Dr. Barnett's report and opinion, which was
thoroughly cross-examined. With this factual backdrop, the court determined the
mitigating factors supported substantial and compelling reasons to depart. See State v.
Florentin, 297 Kan. 594, 599, 303 P.3d 263 (2013) ("[E]ach 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.").

The district court thus made no error in fact or law in its analysis. Essentially, the
State's contention is that due to the facts of this case no reasonable person would grant
Jolly a departure. Although other reasonable persons may not have granted the departure,
we find that a reasonable person could agree with the district judge's determination that a
departure was warranted. Cf. 297 Kan. at 602 ("Even though we might individually
disagree with the district court judge's decision, we cannot say that the district court judge
is the only reasonable person who would deny Florentin's motion for departure."). We
therefore conclude that the district court did not abuse its discretion when it granted
Jolly's departure motion under K.S.A. 21-4643(d).

The judgment of the Court of Appeals is reversed, and the judgment of the district
court is affirmed.

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 MICHAEL J. MALONE, Senior Judge, assigned. 1

1
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 106,680 under
the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court
created by the appointment of Justice Nancy Moritz to the United States 10th Circuit Court of
Appeals.
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