State v. Powell

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 115,457

STATE OF KANSAS,
Appellee,

v.

KURT POWELL,
Appellant.

SYLLABUS BY THE COURT

1.
Except for a first time conviction, Jessica's Law requires a hard 25 life sentence
for a defendant who is 18 years of age or older and convicted of the statutorily
enumerated crime, which includes sex offenses.

2.
For a first time Jessica's Law conviction, K.S.A. 2017 Supp. 21-6627(d)(1)
provides discretion to sentence a defendant under the Kansas Sentencing Guidelines Act
if "the [sentencing] judge finds substantial and compelling reasons, following a review of
mitigating circumstances, to impose departure."

3.
An appellate court reviews for abuse of discretion a district court's determination
under K.S.A. 2017 Supp. 21-6627(d)(1) as to whether a defendant's mitigating
circumstances are substantial and compelling reasons to depart from a hard 25 life
sentence under Jessica's Law.

1
4.
A sentencing judge abuses discretion in deciding whether a defendant's mitigating
circumstances are substantial and compelling reasons to depart under K.S.A. 2017 Supp.
21-6627(d)(1) when: (i) a ruling is based on an error of law; (ii) a ruling is based on an
error of fact, i.e., substantial competent evidence does not support a factual finding on
which a prerequisite conclusion of law or the exercise of discretion is based; or (iii) is
arbitrary, fanciful, or unreasonable, i.e., no reasonable person would take the view
adopted by the judge.

5.
A party arguing an abuse of discretion bears the burden of proving it occurred.

6.
K.S.A. 2017 Supp. 21-6627(d) requires a sentencing judge to state on the record at
the time of sentencing the substantial and compelling reasons for departure when
departing from the mandatory minimum term of imprisonment under Jessica's Law. The
statute does not require the sentencing judge to explain a decision denying departure.

7.
A sentencing judge is not required to affirmatively state the judge did not weigh
aggravating and mitigating circumstances when denying departure under K.S.A. 2017
Supp. 21-6627(d)(1).

8.
A sentencing judge deciding whether there are substantial and compelling reasons
to depart from Jessica's Law's hard 25 life sentence may consider evidence that might
reasonably bear on the proper sentence for a particular defendant.

2
9.
On review, an appellate court should disregard characterizations of evidence that
might reasonably bear on a defendant's sentence for a first time Jessica's Law conviction
as "aggravating." The question is whether the evidence relates to the decision to be made,
i.e., whether the mitigating circumstances advanced both exist and supply a substantial
and compelling reason to depart from the hard 25 life sentence.

Review of the judgment of the Court of Appeals in 53 Kan. App. 2d 758, 393 P.3d 174 (2017).
Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed August 24, 2018.
Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is
affirmed.

Corrine E. Gunning, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district
attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.

The opinion of the court was delivered by

BILES, J.: The State challenges a Court of Appeals decision reversing a district
court's denial of a request for downward departure from the hard 25 life sentence under
Jessica's Law. A divided panel held the sentence must be vacated and reconsidered
because the record was ambiguous as to whether the district court weighed evidence
about an uncharged prior molestation against defendant's evidence in mitigation. State v.
Powell, 53 Kan. App. 2d 758, 762, 393 P.3d 174 (2017). We disagree with the panel
majority's rationale and reverse its decision because we discern no abuse of discretion.
We affirm the district court's denial of the requested downward departure. In so holding,

3
we seek to clarify the process for district court consideration of motions to depart under
Jessica's Law.

FACTUAL AND PROCEDURAL BACKGROUND

Kurt Powell pleaded guilty to one count of aggravated indecent liberties with a
child under 14. At the plea hearing, he admitted inappropriately touching the victim, with
intent to arouse or satisfy sexual desires, when she was under 14 years old and he was
over 18. The crime occurred between February and November 2013. The district court
accepted the plea and found Powell guilty. The conviction carried a hard 25 life sentence
under Jessica's Law, K.S.A. 2017 Supp. 21-6627. K.S.A. 2017 Supp. 21-5506(b)(3)(A);
K.S.A. 2017 Supp. 21-6627(a)(1).

At sentencing, Powell requested a downward durational departure to 29.5 months'
imprisonment. For this to happen, the district court would have needed to make a double
departure: once from the life sentence to the sentencing grid; and again from the
applicable grid box to the requested term. To support this leniency, Powell relied on his
lack of criminal history, his willingness to participate in available rehabilitation, his work
history, his supportive family, and the fact he was truthful with police during the criminal
investigation. Powell argued his victim, who was his daughter, had forgiven him; and he
noted his family favored departure. Powell submitted an evaluation by Dr. Robert
Barnett, a clinical psychologist. An acquaintance, Mark Berg, also testified for Powell.

Barnett's report is not in the appellate record, but he testified Powell was a good
candidate for departure based on statistical data about reoffense rates. He said Powell's
chances for successful rehabilitation were enhanced by his work history, his supportive
family, the lack of substance abuse problems, and the lack of a criminal history. Barnett
said Powell had the necessary insight to understand his actions' consequences and to learn

4
from them. Barnett said Powell was not a pedophile because he was not a compulsive
child molester and noted the victim was past puberty. Barnett believed Powell would
benefit from sex offender treatment offered by the Department of Corrections and could
get further helpful assistance on parole or probation. Barnett summed up his conclusions
by stating: "I'm not quite sure how he could be a better candidate [for departure]."

On cross-examination, Barnett admitted he received his information only from
Powell and his attorney. He explained he always asks offenders if they intend to reoffend.
When questioned whether a history of molesting another child would cause Barnett to
doubt his conclusion about Powell reoffending, Barnett said, "I understand there have
been allegations in the past with Mr. Powell, but I don't think he was arrested or
convicted of anything else." The State asked Barnett, "In the affidavit it says that he
admitted to molesting his older stepdaughter. Did you remember that?" Barnett said he
did not, was not sure what the prosecutor was referring to, and questioned whether the
State was referring to an affidavit in this case or some other one. The prosecutor clarified
she was referring to an affidavit in this case. Barnett acknowledged he missed that detail.
He agreed such an admission would be "a big thing" but would not change his opinion.
We note the probable cause affidavit in this case does not reference another victim, so
based on the appellate record we are unsure what affidavit the prosecutor was discussing,
or if it even exists.

When questioned about Powell's present crimes, Barnett said he understood it was
over-the-clothes fondling that happened more than one time. He said Powell did not tell
him about confessing to touching his stepchild's genitals. Barnett said he needed more
information about that to determine whether this would change his assessment and agreed
there was clinical significance in the difference between the stepchild's allegations and
over-the-clothes fondling. He said these details would not change his overall opinion on
the likelihood of reoffending because sex offenders have a low recidivism rate.
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 Later, while cross-examining Barnett about whether Powell was a pedophile, the
State asked, "He told you that he didn't actually molest his older stepdaughter. You took
him at his word, didn't you?" Barnett said he did not ask about this, but said he

"asked [Powell] if he had any history of accusations of sexual behavior. He said he was
accused of touching his stepdaughter. No charges were brought. He added my first wife
in 1998 accused me of molesting her daughter, but she just wanted me gone. That's the
extent of it."

Barnett said Powell told him he felt his attorney did not want him to talk about
this.

Powell's stepdaughter, M.L., testified for the State that Powell molested her until
she was 12 years old. She said this included touching her breasts and vagina, attempting
intercourse, making her touch his penis, and making her put his penis in her mouth. She
did not remember when this abuse started. She "just grew up with it. It was just there."
She said the abuse stopped when she found out it was wrong and told Powell to stop. She
said he never apologized and continued making sexual comments to her after she was an
adult. She believed Powell would reoffend because he abused her almost every night and
did it again with the victim in this case.

Berg was acquainted with Powell through church. He asked the court for leniency.
He believed Powell wanted help and wanted to change. On cross-examination, Berg
testified he did not know until the sentencing hearing that Powell molested M.L.

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The district court's order denying downward departure

The district court denied Powell's motion and imposed the hard 25 life sentence.
The court's explanation, which is central to this appeal, stated:

"With regard to the motion for departure, that motion lists essentially five reasons
that they desire—or pardon me, that the defendant is asking the Court for a departure.
First is a lack of criminal history. Second is the availability of rehabilitation efforts, and
third is Mr. Powell's willingness to participate in those rehabilitative efforts. Fourth is his
impressive work history and supportive family, and finally, that he was truthful with
police from the beginning of this investigation.

"I will point out that it's probably obvious to everyone in the courtroom that this
case has a presumed sentence, and what it means for the sentencing judge is that that is a
sentence that the Court is to hand down. That's what the law says. Obviously the motion
was filed in an effort to persuade the Court not to impose that sentence. In order for the
Court to grant that motion, I must find that there are substantial and compelling reasons
to do so.

"Let's look a little bit at those definitions. I will quote from State v. McKay. It is
271 Kansas 725, 2001 case from the Supreme Court of Kansas. It says first in the context
of departure sentences, the terms substantial and compelling have specific definitions.
The term substantial refers to something that is real, not imagined, something with
substance, not ephemeral.

"The term compelling means that the Court is forced by the facts of the case to
go beyond what status quo is, go beyond what is the statutory sentence. State versus
Zuck, Z-U-C-K, 21 Kansas Appellate 597, a 1959 case states that as these definitions
reflect, departure sentences are authorized only in extraordinary cases.

"I rely on those definitions and in doing so, would repeat that the motion for
departure needs to be supported by that type of information. After considering all of the

7
 information presented today, the Court cannot find substantial and compelling reasons to
depart from the presumed sentence. The presumed sentence in my opinion is just in this
case.

"I find the primary offense is Count 1 calling for a prison term of a life and post-
supervision duration of life. I would repeat again that the motion for departure is denied
as the Court cannot find substantial and compelling reasons to grant the motion.

"It is the judgment and order of this Court that you be sentenced as follows: With
regard to Count 1, aggravated indecent liberties with a child less than 14 years of age, life
imprisonment. Total term of incarceration will be life." (Emphasis added.)

Powell timely appealed. See K.S.A. 2017 Supp. 22-3608(c) (providing defendant
may appeal within 14 days of district court judgment). He argued the district court abused
its discretion when denying his departure motion by not following the required analytical
framework set out in State v. Jolly, 301 Kan. 313, 342 P.3d 935 (2015). He stressed two
deficiencies: (1) failing to determine if mitigating circumstances existed; and (2)
including aggravating circumstances and "inappropriate facts" in its analysis because the
court said it "considered all of the information presented today."

The panel decision reversing the district court

A divided panel reversed the district court. The majority vacated the sentence and
remanded for the district court to reconsider Powell's motion under what the majority
perceived was the Jolly framework. Powell, 53 Kan. App. 2d at 762. Judge Thomas J.
Malone dissented, arguing Jolly is analytically unsound, but noting the district court's
decision complied all the same. 53 Kan. App. 2d at 770-71 (Malone, J., dissenting)
(citing State v. McCormick, 305 Kan. 43, 378 P.3d 543 [2016] [Stegall, J., dissenting]).

8
 In reversing, the majority did not squarely resolve Powell's argument that the
district court should not have considered evidence about M.L.'s uncharged abuse. Instead,
the majority characterized her testimony as an "aggravating" factor because it was
unrelated to the crime for which Powell was being sentenced. 53 Kan. App. 2d at 762
(noting M.L.'s testimony was "presented solely as an aggravating factor intended to offset
the mitigating factors"). Importantly, the majority said it could not "definitively
determine from the record whether the sentencing court considered Powell's claimed
mitigating circumstances without weighing them against the State's aggravating
circumstances." (Emphasis added.) 53 Kan. App. 2d at 762. The majority essentially held
resentencing was necessary to affirmatively demonstrate compliance with Jolly. 53 Kan.
App. 2d at 762.

Disagreeing with the panel majority, Judge Malone argued against the result. He
believed the record showed compliance with Jolly, noting the court first reviewed the
mitigating circumstances advanced by defendant and then determined there were not
substantial and compelling reasons to depart after considering all the facts. 53 Kan. App.
2d at 770. Judge Malone viewed M.L.'s abuse not as an aggravating circumstance but as
rebutting Barnett's expert testimony. 53 Kan. App. 2d at 767-68. He stated it was
appropriate for the sentencing court to consider evidence about the stepdaughter's abuse
because it might reasonably bear on the appropriate sentence. 53 Kan. App. 2d at 770.

Judge Malone urged this court to grant review and "take the opportunity to further
clarify how sentencing courts should conduct hearings on departure motions under
Jessica's Law, what evidence can be presented by the State at such hearings, and how
sentencing courts should consider the evidence in ruling on such motions." 53 Kan. App.
2d at 771.

9
 The State petitioned this court for review, which we granted. Jurisdiction is
proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals
decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of
Appeals decisions upon petition for review).

ANALYSIS

Our basic inquiry is whether the district court's sentencing order must be reversed
simply because the court did not affirmatively declare that it reviewed Powell's
mitigating circumstances without weighing them against aggravating circumstances. This
is clear from the panel majority's holding that

"because we cannot definitely determine from the record whether the sentencing court
considered Powell's claimed mitigating circumstances without weighing them against the
State's aggravating circumstances, we find it necessary to vacate Powell's sentence and
remand for resentencing and for reconsideration of Powell's departure motion and, in
reconsidering Powell's motion, to demonstrate compliance with Jolly." 53 Kan. App. 2d
at 762.

We divide our review into two parts. First, whether the sentencing court's failure
to expressly state how it applied the Jolly framework is sufficient reason to require the
district court to reconsider the departure motion. Second, whether the district court's
consideration of Powell's prior, uncharged child sex crimes would establish the district
court abused its discretion by considering facts immaterial to its determinations about
whether there were substantial and compelling reasons for departure under K.S.A. 2017
Supp. 21-6627(d)(1).

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Standard of review

Jessica's Law requires a hard 25 life sentence for a defendant who is 18 years of
age or older and convicted of the statutorily enumerated crime, which includes sex
offenses. K.S.A. 2017 Supp. 21-6627(a)(1). But for a first time Jessica's Law conviction,
a defendant may be sentenced under the Kansas Sentencing Guidelines Act if "the
[sentencing] judge finds substantial and compelling reasons, following a review of
mitigating circumstances, to impose a departure." (Emphasis added.) K.S.A. 2017 Supp.
21-6627(d)(1). If the district court finds substantial and compelling reasons to depart, the
defendant may be sentenced to the otherwise applicable term of months on the grid
instead of an indeterminate life sentence. See K.S.A. 2017 Supp. 21-6804.

An appellate court reviews a district court's determination as to whether there are
substantial and compelling reasons to depart for abuse of discretion. Jolly, 301 Kan. at
325. A district court abuses its discretion when: (1) a ruling is based on an error of law;
(2) a ruling is based on an error of fact, i.e., substantial competent evidence does not
support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based; or (3) a ruling is arbitrary, fanciful, or unreasonable, i.e., no
reasonable person would take the view adopted by the judge. 301 Kan. at 324.

"Generally, the trial court's decision is protected if reasonable persons could differ upon
the propriety of the decision as long as [it] is made within and takes into account the
applicable legal standards. However, an abuse of discretion may be found if the trial
court's decision goes outside the framework of or fails to properly consider statutory
limitations or legal standards." (Emphasis added.) State v. Shopteese, 283 Kan. 331, 340,
153 P.3d 1208 (2007).

11
The Jolly Framework

In Powell's case, we focus on the panel majority's determination that the district
court abused its discretion by making an error of law. See Powell, 53 Kan. App. 2d at 762
("Failure to follow the statutory method for considering a departure from a Jessica's Law
case is an error of law and constitutes an abuse of discretion."). Much of the panel's back-
and-forth with the dissent centers on our court's decision in Jolly and a later case,
McCormick, 305 Kan. 43. We need to review both decisions to explain our outcome in
Powell's appeal.

The Jolly court concluded that when considering a departure motion under
Jessica's Law, K.S.A. 21-4643's "plain language . . . instructs the sentencing court to
conduct a review of the mitigating circumstances without balancing them against the
aggravating ones." (Emphasis added.) Jolly, 301 Kan. at 322. The court explained:

"'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.'" 301 Kan. at 322 (quoting State v. Spencer, 291 Kan. 796,
809, 248 P.3d 256 [2011]).

Accordingly, the Jolly court "disapprove[d] of any language in [Kansas] caselaw
that would indicate aggravating circumstances can be weighed against mitigating
circumstances when considering departure." (Emphasis added.) 301 Kan. at 322. For the
Jolly court, this meant that when considering a departure motion, the district court's
decision-making framework requires it to first

12
 "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." 301 Kan. at 324.

The Jolly decision arose from a Court of Appeals reversal of a departure sentence.
To get to its result, the panel reassessed what the sentencing court relied on, discounting
each factor's significance and then reweighing the evidence. And based on its
reassessment, the panel determined the sentencing court abused its discretion in granting
departure. 301 Kan. at 328. The Jolly panel added,

"[W]e find that the aggravating factors in this case clearly outweigh Jolly's lack of a
criminal record. He was a 43-year-old male who assumed the role of a lover with a 12-
year-old girl. He was a trusted adult family friend; she was a child. He knew of C.E.'s
sexual abuse by her mother's boyfriend 1 month earlier and he took advantage of her
vulnerability.

"There were no substantial and compelling reasons for granting a departure
sentence." (Emphasis added.) State v. Jolly, No. 106,680, 2012 WL 5519179, at *7 (Kan.
App. 2012).

On review, the Jolly court rejected the panel's reasoning and affirmed the
departure sentence. The Jolly court first determined substantial competent evidence
supported each mitigating factor. It then concluded,

"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
13
 departure, we find that a reasonable person could agree with the district judge's
determination that a departure was warranted." 301 Kan. at 331.

In McCormick, the district court discussed the defendant's mitigating evidence and
then stated, "'The problem is there's an aggravating factor here,'" referring to the fact that
the 13-year-old rape victim was intoxicated during the crime. (Emphasis added.)
McCormick, 305 Kan. at 46. The district court followed this up by explaining:

"'[E]ven though there are some substantial mitigating factors, I think it's just trumped by
the . . . evidence that this particular [13-year-old] was severely inebriated to the point
where she couldn't . . . give consent. So I haven't heard anything that makes me think I
should go ahead and . . . find substantial and compelling reasons for departure . . . ."
(Emphasis added.) 305 Kan. at 46.

A court majority held this explanation showed the district court applied the wrong
legal standard by improperly weighing aggravating and mitigating factors when it
"explicitly referred to the piece of evidence that persuaded him as an 'aggravating
factor' . . . ." 305 Kan. at 50.

Justice Caleb Stegall dissented, joined by Justices Marla Luckert and Eric Rosen.
Justice Stegall argued Jolly and the McCormick majority improperly added a prohibition
against weighing aggravating factors into K.S.A. 2012 Supp. 21-6627(d)(1)'s language.
He noted the statute neither commands nor prohibits a weighing of aggravating and
mitigating circumstances and that the statute's "plain, unambiguous language . . . merely
tells the district court judge to determine whether substantial and compelling reasons
exist to grant a downward departure after reviewing the mitigating circumstances." 305
Kan. at 52 (Stegall, J., dissenting). He also argued the majority put form over substance
by acknowledging a sentencing court may consider how the crime was committed and the
circumstances inherent in it, but nevertheless find reversible error when the district court
14
did that solely because the lower court "used the 'wrong' words to describe what [it] did."
305 Kan. at 53.

Judge Malone echoed those concerns in his dissent in Powell's case, noting the
Jolly court's direction that sentencing courts not weigh aggravating circumstances against
mitigators "is difficult to follow in real-life cases." Powell, 53 Kan. App. 2d at 769. He
explained:

"Powell's case provides a good example. Is the State allowed to present evidence at the
departure hearing to rebut the defendant's evidence? If so, must the evidence presented by
the State be limited strictly to the manner in which the defendant carried out the crime?
How is the district court to consider the evidence presented by both parties in deciding
the departure motion? In almost every hearing under the criminal code, parties are
allowed to present conflicting evidence so the court will have all the relevant information
to make an informed decision. Are we saying that departure hearings under Jessica's Law
do not work this way?" 53 Kan. App. 2d at 769.

Both Jolly and McCormick contain language that has resulted in mixed outcomes
and conflicting reasoning in later Court of Appeals cases reviewing decisions denying
Jessica's Law departures. Most of this comes from: (1) Jolly's stated prohibition against
weighing aggravating and mitigating circumstances, while sanctioning consideration of
"the facts of the case," Jolly, 301 Kan. at 323-24; and (2) the McCormick court's concern
that the district court applied the wrong standard, noting "where, as here, the district
judge explicitly referred to the piece of evidence that persuaded him as an 'aggravating
factor,' we cannot be wholly confident that the statutory command not to conduct
weighing of aggravators and mitigators was followed," while allowing consideration of
the "circumstances inherent in the crime." 305 Kan. at 50-51.

15
 In dutifully trying to follow Jolly and McCormick, various Court of Appeals
panels have discovered reversible error in cases that fall into three general categories.
And yet another batch of cases find no error.

The first is the McCormick-type case, in which the sentencing court expressly
referred to aggravating factors when ruling. See, e.g., State v. Henning, No. 115,832,
2017 WL 3837224, at *12 (Kan. App. 2017) (unpublished opinion) ("The district court
specifically considered the video tape, the State's primary piece of evidence, to be an
'aggravating' circumstance causing the scale to have 'dropped like a rock.'").

The second category includes cases in which sentencing courts described their
rulings as products of a weighing process but without referring to the facts—against
which mitigating factors were balanced—specifically as aggravating circumstances. See,
e.g., State v. Atkisson, No. 112,656, 2015 WL 6457797, at *1 (Kan. App. 2015)
(unpublished opinion) (noting sentencing court weighed mitigating factors "'against the
other items'"—i.e., "the facts that related charges occurred in multiple counties, this was
not an isolated incident, and the age difference" between defendant and victim); State v.
Berriozabal, No. 108,303, 2014 WL 1707417, at *15 (Kan. App. 2014) (unpublished
opinion) (district court noted mitigation present from defendant's young age and
insubstantial criminal history was "outweighed" by offenses' violent nature, repeated
abuse, abuse of position of authority, failure to stop when asked, and fleeing county when
caught; but it did not explicitly call these facts aggravating circumstances) vacated in
part and remanded (Kan. S. Ct. order dated May 4, 2015) (unpublished).

The third includes cases like Powell's in which the district court did not refer to
either "aggravating circumstances" or "weighing," but the record failed to affirmatively
show the court followed Jolly. See, e.g., State v. Anno, No. 116,350, 2017 WL 3947380,
at *6 (Kan. App. 2017) (unpublished opinion) (holding district court abused its discretion
16
because "[t]here [was] no point in the record at which the district court first considered
the mitigating circumstances without any attempt to weigh them against aggravating
factors"); State v. Sullivan, No. 114,369, 2016 WL 4413563, at *2-3 (Kan. App. 2016)
(unpublished opinion) (vacating sentence for failing to follow Jolly framework when
"district court made only very brief comments" and "gave no indication that it carried out
the first step mandated by Jolly"); State v. Pulley, No. 112,631, 2015 WL 5750477, at *5
(Kan. App. 2015) (unpublished opinion) ("It seems from the record that the district court
improperly considered aggravating circumstances, contrary to Jolly. At best, the record is
ambiguous as to when the district court completed its determination as to the existence of
mitigating factors."); State v. Albanil-Alvarado, No. 111,802, 2015 WL 5311922, at *2
(Kan. App. 2015) (unpublished opinion) (vacating sentence because record was
insufficient for Court of Appeals to recognize if district court had followed Jolly's
procedural steps; noting the district court said it had reviewed mitigating circumstances,
but it seemed to have immediately moved on to consider other facts that were not
presented as mitigators).

In contrast with the third category, several Court of Appeals cases have upheld
district court decisions denying departure even when the sentencing court did not
expressly perform each Jolly step on the record. See, e.g., State v. Cessna, No. 115,999,
2018 WL 386844, at *7 (Kan. App. 2018) (unpublished opinion) (holding district court
did not abuse discretion when it "simply said, 'I do not find substantial and compelling
reasons to depart'" without affirmatively showing it followed Jolly); State v. Ashbaugh,
No. 116,426, 2017 WL 5180845, at *4 (Kan. App. 2017) (unpublished opinion)
(upholding district court's denial of defendant's departure motion when it ruled there were
no substantial and compelling reasons to depart and noted victim impact statements
showed damage defendant had caused to victims and their family; stating district court's
"straightforward ruling gave no indication he had improperly considered or 'weighed' any
'aggravating circumstances'"); State v. Cook, No. 113,768, 2016 WL 2609640, at *2-3
17
(Kan. App. 2016) (unpublished opinion) (holding no abuse of discretion when district
court simply ruled substantial and compelling reasons to depart did not exist and noted—
after observing no need to find aggravating circumstances—that defendant and victims'
ages supported denying departure).

Given this assortment, it seems obvious Jolly and McCormick fail to chart a
discernible path for our sentencing and reviewing courts to consistently follow when
considering departure motions under Jessica's Law. We need to change that.

Failure to perform Jolly steps on the record is not reversible error

Turning to our first inquiry—whether the Jolly steps must be performed on the
record—we agree with the State that the Powell majority erred when concluding reversal
was required because the district court did not affirmatively disavow it was not weighing
mitigating and aggravating circumstances. Powell's sentencing court did not expressly
state it considered any facts as "aggravating," and it did not describe its process in
reaching its ruling as "weighing." But the panel majority nevertheless stated it could not
"definitively determine from the record whether the sentencing court considered Powell's
claimed mitigating circumstances without weighing them against the State's aggravating
circumstances." (Emphasis added.) Powell, 53 Kan. App. 2d at 762. It held resentencing
was required so the district court could show its compliance with Jolly. We disagree with
the panel majority for two reasons.

First, the statute does not oblige a district court to state its reasons for denying a
departure motion. Indeed, K.S.A. 2017 Supp. 21-6627(d)(1) requires just the opposite:
"If the sentencing judge departs from [the] 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." (Emphases added.) And while it is laudable for
18
district courts to explain the reasons for their rulings, those explanations are voluntary
and have injected opportunity for challenge based on our language from Jolly and
McCormick.

The Powell panel majority cited Pulley, 2015 WL 5750477, for its understanding
that ambiguity required reversal. Powell, 53 Kan. App. 2d at 762. In Pulley, the panel
remanded for resentencing when the district court denied departure after considering
evidence the defendant's crimes involved more than incidental contact with the victim
and occurred over a larger time period than suggested by the factual basis for defendant's
guilty plea to a single crime. Pulley, 2015 WL 5750477, at *5-6. As part of its rationale
for reversal, the Pulley panel commented,

"It seems from the record that the district court improperly considered
aggravating circumstances, contrary to Jolly. At best, the record is ambiguous as to when
the district court completed its determination as to the existence of mitigating factors.
Although the State argues that the district court was simply considering mitigating factors
in light of the facts of the case, we note that Pulley's prior diversion for a sex offense was
not a fact inherent in the crime of conviction and appeared to have been viewed
negatively by the district court. Because of the ambiguity in the record, we cannot tell
whether Pulley's diversion was considered in the context of determining whether the
mitigating factor in K.S.A. 21-4643(d)(1) was met, or if the district court viewed the
diversion as an aggravating factor." (Emphases added.) Pulley, 2015 WL 5750477, at *5.

But our pre-Jolly caselaw noted that "'[s]pecificity by the district court judge when
making his or her determination is not statutorily required' unless the court decides
departure is warranted." (Emphasis added.) State v. Harsh, 293 Kan. 585, 587, 265 P.3d
1161 (2011) (quoting State v. Plotner, 290 Kan. 774, 780-81, 235 P.3d 417 [2010]); see
also State v. Remmert, 298 Kan. 621, 631, 316 P.3d 154 (2014) ("Jessica's Law does not
require a district court to state the reasons why it denied a departure motion."),

19
disapproved of on other grounds by Jolly, 301 Kan. at 322 ("[W]e disapprove of any
language in our caselaw that would indicate aggravating circumstances can be weighed
against mitigating circumstances when considering a departure in a Jessica's Law
sentencing. See, e.g., Remmert, 298 Kan. at 630."); State v. Florentin, 297 Kan. 594, 601-
02, 303 P.3d 263 (2013) ("[A] judge is not required to state the reasons a departure
motion is denied."), disapproved of on other grounds by Jolly, 301 Kan. at 322. Jolly
does not purport to disturb this understanding.

Second, the cases finding abuse of discretion based on the record's failure to
affirmatively disclose the district court's application of the Jolly framework are oddly
contrary to how abuse of discretion review is typically performed—namely, the general
rule that a party arguing an abuse of discretion bears the burden of proving it. See, e.g.,
State v. Staten, 304 Kan. 957, 970, 377 P.3d 427 (2016) (defendant bears burden of
proving abuse of discretion denying motion for new counsel); State v. Robinson, 303
Kan. 11, 90, 363 P.3d 875 (2015), disapproved on other grounds by State v. Cheever, 306
Kan. 760, 402 P.3d 1126 (2017); State v. Warren, 302 Kan. 601, 614, 356 P.3d 396
(2015); State v. Hilt, 299 Kan. 176, 186, 191, 322 P.3d 367 (2014); State v. Plotner, 290
Kan. 774, 777, 235 P.3d 417 (2010); State v. Wells, 289 Kan. 1219, 1227, 221 P.3d 561
(2009); State v. Reid, 286 Kan. 494, 519, 186 P.3d 713 (2008). And the same general rule
applies to discretionary sentencing decisions including denying a motion to depart from
Jessica's Law's hard 25 life sentence. State v. Seward, 289 Kan. 715, 722, 217 P.3d 443
(2009) (holding defendant had the burden to demonstrate district court abused its
discretion in denying a departure motion), disapproved on other grounds by Jolly, 301
Kan. at 322-23; see also State v. Baker, 297 Kan. 482, 484, 301 P.3d 706 (2013)
(defendant bore burden of proving abuse of discretion in district court's order that
sentences would run consecutively, rather than concurrently); State v. Sampsel, 268 Kan.
264, 271-72, 997 P.2d 664 (2000) (noting under pre-KSGA sentencing scheme burden on

20
party making claim to demonstrate departure sentence was product of partiality,
prejudice, or improper motive and scope of appellate review is abuse of discretion).

Similarly, in other contexts, a district court's failure to express each step of an
applicable legal framework on the record has not required reversal for clarification. For
example, district court discretion in motions for mistrial and motions to withdraw pleas is
guided by legal frameworks like the one announced in Jolly. See Warren, 302 Kan. at
608 (holding district court evaluating motion for mistrial must first decide whether
prejudicial conduct created fundamental failure in proceeding; and, if so, whether it is
possible to proceed without denying fair trial). Again, nothing in Jolly altered the general
principles underlying abuse of discretion review.

In sentencing Powell, the district court did not recite each step set forth in Jolly,
although it articulated the mitigating circumstances Powell advanced. The district court
did not make findings whether Powell proved his mitigators, but this is not enough
standing alone to conclude the court abused its discretion. The district court identified the
correct legal standard, i.e., whether substantial and compelling reasons to depart existed.
And it gave no indication it was engaging in "weighing" or even that it considered any
information presented to it as "aggravating."

As Judge Malone correctly pointed out in dissent:

"Was the State not entitled to rebut the evidence that Powell had presented at the
hearing to support his departure motion? Of course, it was. And if the State was allowed
to present rebuttal evidence, was the district court not allowed to consider the evidence in
deciding the motion? Of course, it was. In ruling on Powell's departure motion, the
district court expressly recited the mitigating factors set forth in the motion. The district
court did not refer to the State's rebuttal evidence as 'aggravating circumstances'; in fact,
the district court never used this term at the hearing. The district court never stated that it
21
 had weighed aggravating circumstances against mitigating circumstances in denying
Powell's motion. Instead, the district court merely stated that '[a]fter considering all of the
information presented' at the hearing, it was unable to find substantial and compelling
reasons to depart from the presumed sentence." Powell, 53 Kan. App. 2d at 767-68.

Put simply, since reversal of a denial of a departure motion requires an abuse of
discretion, and because the party alleging abuse of that discretion must demonstrate it, the
only question on appeal is whether something in the record shows an abuse occurred. We
address this question as to Powell's appeal in the next section.

To be clear, we hold the panel majority erred when it reversed and remanded
Powell's sentence because the district court did not affirmatively explain it was not
weighing mitigating and aggravating circumstances when denying Powell's request for a
Jessica's Law departure. Any precedent expressing a contrary view is in error.

The district court did not abuse its discretion

We now turn to our second inquiry—whether the record demonstrates an abuse of
discretion. The panel majority's reasoning suggests the district court's reliance on
evidence that would constitute "aggravating circumstances" might demonstrate abuse of
discretion. Powell, 53 Kan. App. 2d at 762. And the panel majority characterized
Powell's uncharged abuse of M.L., as shown by her testimony and other evidence, as an
aggravating circumstance. 53 Kan. App. 2d at 761-62. But this characterization falls
victim to Justice Stegall's form-over-substance critique. McCormick, 305 Kan. at 53. The
real question is whether the district court considered improper evidence in denying the
departure motion, regardless of any label or characterization one might give that
evidence.

22
 The McCormick majority indicated that whether a fact is beyond the district court's
reach in a departure ruling is a question of law that turns on interpreting K.S.A. 2017
Supp. 21-6627(d)(1). 305 Kan. at 48 (argument sentencing court erred by considering a
self-described aggravating factor when ruling on departure motion requires the court to
conduct statutory interpretation). But as discussed, K.S.A. 2017 Supp. 21-6627(d)(1)
simply provides "the 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." This statutory language fits
neatly within the abuse of discretion paradigm.

If the court based its ruling on information it was not entitled to consider as a
matter of law, it abused its discretion by basing its ruling on an error of law. See Kuhn v.
Sandoz Paraceuticals Corp., 270 Kan. 443, 456, 14 P.3d 1170 (2000) (noting questions
of law presented when appellate court seeks to review the factors and considerations
forming a discretionary decision, and stating "'[a] district court by definition abuses its
discretion when it makes an error of law'"). Again, the issue is simply whether it was an
abuse of discretion for the sentencing court to consider "all of the information presented
today" as the district court explained. We identify no error.

There are three reasons the district court could properly consider the prior-sex-
crime evidence in ruling on the departure motion: (1) it was a "fact of the case" for the
substantial and compelling reason determination because it showed the convicted crime
was not an isolated incident, but rather part of Powell serially molesting children in his
household; (2) it was relevant to whether Powell proved his claimed mitigating
circumstances—in particular, his lack of criminal history and the likelihood he would not
reoffend; and (3) it was introduced by the State for the court's use in deciding the motion
and Powell failed to contemporaneously object to it, so he cannot now claim the
evidence's introduction as a basis for reversal under K.S.A. 60-404.
23
 Powell argues the evidence was not a fact of the case because it did more than just
demonstrate his likelihood of reoffending and went so far beyond mere rebuttal that it
amounted to raising an aggravating circumstance. But what does that mean and how
could a court gauge when evidence crosses over into this perceived forbidden territory?
Powell offers no explanatory case authority to support his claim. Instead, he seems to
contend the State was to be strictly constrained in cross-examining Barnett and limited to
arguing Powell failed to prove his mitigating factor. For its part, the panel majority
characterized this uncharged prior crimes evidence as an aggravating factor because it
deemed the evidence unrelated to how Powell committed the crime of conviction. Powell,
53 Kan. App. 2d at 762. But this labeling does not accurately capture the distinction
between permissible and impermissible considerations in ruling on a departure motion or
supply the answer to the question posed.

Powell's prior crimes with M.L. were material to the district court's decision
whether to depart because they demonstrated how Powell carried out the convicted
offense. As explained in Jolly, after reviewing the mitigating circumstances, when a
district court is deciding a departure motion, it considers "[t]he facts of the case, . . . [and]
determines whether the mitigating circumstances rise to the level of substantial and
compelling reasons to depart from the otherwise mandatory sentence." Jolly, 301 Kan. at
324. Something is "'"substantial"'" if it 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."'" 301 Kan. at 323.
Jolly does not explicitly define what constitute "the facts of the case" when a district
court is considering whether the mitigating circumstances amount to substantial and
compelling reasons to depart, but it broadly instructs:

24
 "While [Jessica's Law] 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.' [Citation omitted.] 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.) 301 Kan. at 323-24.

Moreover, the McCormick court reasoned that "[t]he manner in which a crime is
committed and the circumstances inherent in the crime are not inevitably limited to the
strict legal elements of the offense." (Emphasis added.) McCormick, 305 Kan. at 50. This
suggests Jolly does not limit the type of evidence a district court may consider in
determining whether departure is warranted, but only limits the manner in which the
district court makes its decision. See 305 Kan. at 50-51 (rejecting argument that district
court erred by considering Jessica's Law victim's intoxication in addressing departure
motion because court may consider only strict legal elements of offense); 305 Kan. at 53
(Stegall, J., dissenting) (arguing Jolly framework "is in actuality just a command to the
district court judge not to describe what he or she is doing—viz., considering all of the
circumstances—as 'weighing'"). McCormick also suggests the so-called "aggravating"
circumstance in that case, i.e., the victim's intoxication, would have been a proper
consideration had the court not used it as a fact to weigh against the defendant's
mitigating circumstances. 305 Kan. at 50.

25
 But these intellectual contortions just add credence to Judge Malone's observation
that the Jolly court's direction that sentencing courts not weigh aggravating circumstances
against mitigators "is difficult to follow in real-life cases." Powell, 53 Kan. App. 2d at
769. In other words, an "aggravating" label or characterization should not control when
reviewing departure decisions in Jessica's Law case for abuse of discretion. The real
question becomes whether the evidence bears on the decision to be made, i.e., whether
the mitigating circumstances advanced both exist and supply a substantial and compelling
reason to depart from the hard 25 life sentence. Cf. State v. Thurber, 308 Kan. ___, 420
P.3d 389 (2018) (noting for purposes of determining relevance, evidence is material if it
tends to establish a fact that is both at issue and significant under the case's substantive
law).

Powell's prior crimes were material to the district court's ruling because they
constituted information that might reasonably bear on the proper sentence. This is so
because it reflected on Powell's background, public safety, and even the facts of the case.
This context surely helped the court determine whether, in light of Powell's mitigation
case, it was "'"forced . . . to leave the status quo or go beyond what is ordinary."'" 301
Kan. at 323. For this reason, we are not persuaded by Powell's contention that the district
court consulted facts unrelated to the case when it considered information outside his plea
agreement.

Powell relies on Pulley to press his point, but the Pulley panel concluded the
district court abused its discretion in denying departure in part because a court may not
"consider facts that are merely alleged in connection with a charge that is ultimately
dismissed. Those facts have not been established either by admission or by trial." Pulley,
2015 WL 5750477, at *6. That situation arose because Pulley pleaded guilty to one crime
in exchange for the State dismissing another count, but at sentencing the court denied
departure citing allegations in the probable cause affidavit concerning the dismissed
26
count. See State v. Atkisson, [this day decided] ("When discretionary decision requires
fact-based determinations, a district court abuses its discretion when the decision is based
on factual determinations unsupported by the evidence.").

Pulley is distinguishable from Powell's case because Powell's abuse of M.L. was
demonstrated by evidence presented to the sentencing court under oath and subject to
challenge. In other words, it was presented as evidence. And had Powell's case gone to
trial, this testimony already had been determined to be admissible in a pretrial ruling. See
K.S.A. 2017 Supp. 60-455(d) (providing defendant's other acts of sexual misconduct are
admissible and may be considered for their bearing on any matter to which relevant and
probative).

In addition to fitting within the facts-of-the-case mold, the prior crimes evidence
was relevant to whether Powell proved his claimed mitigating circumstances, which
included his lack of criminal history and the likelihood he would reoffend. Barnett even
agreed there was clinical significance in the difference between M.L.'s allegations and
over-the-clothes fondling. In Ashbaugh, a Court of Appeals panel addressed a defendant's
argument that information cited in opposition to departure "went beyond the facts of the
case and should not have been considered." Ashbaugh, 2017 WL 5180845, at *3. The
panel's test—admittedly a case-by-case approach—turned on whether the unfavorable
information related to the facts advanced in support of departure. The panel held it was
permissible for the State to rebut defendant's arguments favoring departure "by noting
incongruities and contradictions" in an evaluation on which defendant relied and through
victim impact statements "to rebut . . . implications that [defendant's] family relationships
could be reestablished if he were to be granted a departure sentence." 2017 WL 5180845,
at *3.

27
 The panel reasoned,

"The evidence and arguments by the State would seem to clearly fall within the
realm of information which reasonably might bear on the proper sentence for this
particular defendant by filling the 'vacuum' potentially created had Ashbaugh's arguments
gone unrebutted. Under these circumstances, a reasoned rebuttal does not rise to the level
of an 'aggravating circumstance.'" 2017 WL 5180845, at *3.

We agree with this view of the evidence's relationship to a particular mitigation
case. Moreover, whether a mitigating circumstance exists is a fact question. See Jolly,
301 Kan. at 326-331 (holding substantial competent evidence supported district court's
finding that there were three mitigating circumstances supporting departure: defendant
did not have criminal history, took responsibility for crime, and was not risk to
community). Applying this principle to Powell's case, the prior crimes evidence was
relevant to the persuasiveness of Barnett's opinion that Powell was unlikely to reoffend.
Even more pointedly, M.L.'s testimony contradicted Powell's claim based on his lack of
prior convictions that he had no history of prior criminal conduct.

Finally, this evidence was admitted solely on the departure issue and Powell failed
to object to it. Under the contemporaneous objection rule,

"A verdict or finding shall not be set aside, nor shall the judgment or decision
based thereon be reversed, by reason of the erroneous admission of evidence unless there
appears of record objection to the evidence timely interposed and so stated as to make
clear the specific ground of objection." K.S.A. 60-404.

"[E]videntiary claims—including questions posed by a prosecutor and responses
to those questions during trial—must be preserved by way of a contemporaneous
objection for those claims to be reviewed on appeal." State v. King, 288 Kan. 333, 349,

28
204 P.3d 585 (2009). Powell did not object, so he cannot now challenge the district
court's ruling. See Wentland v. Uhlarik, 37 Kan. App. 2d 734, Syl. ¶ 6, 159 P.3d 1035
(2007) ("The trial court cannot be accused of abusing its discretion in the admission of
evidence when the complaining party failed to object and thereby give the trial court an
opportunity to exercise its discretion on the matter.").

In summary, the record does not establish the district court abused its discretion by
improperly weighing aggravating and mitigating circumstances. Unlike the district court
in McCormick, the district court in Powell's case did not expressly refer to aggravating
circumstances. The evidence adduced at sentencing was a fact of the case material to
whether there were substantial and compelling reasons to depart, relevant to whether
Powell proved his mitigating factors, and introduced without objection for the court's use
in ruling on the motion.

CONCLUSION

Because the record does not demonstrate the district court based its ruling on an
error of law by applying an incorrect legal framework or by considering improper facts,
we hold Powell failed to show the district court abused its discretion. The panel majority
erred by vacating the sentence. We hold further that district courts considering a
departure motion need not affirmatively state they are not weighing aggravating and
mitigating circumstances. Language in our caselaw contrary to today's holding is no
longer sound.

We reverse the panel majority's decision. We affirm Powell's sentence.

29
 ***

BEIER, J., concurring: I concur in the result reached by the majority today and in
most of its expressed rationale.

I write separately only to distance myself from its statements that how a district
judge labels or characterizes evidence or the fact it has been admitted to prove is of no
moment. Such statements are, at best, overbroad, and at worst, wrong. They are also
unnecessary to reach the correct outcome and promise more, rather than less, confusion
in the district courts.

The words a district judge uses to describe what he or she is deciding and why
matter. Indeed, they are often all an appellate court has to go on when determining
whether the judge adhered to the law. Appellate judges do not sit to determine what a
lower court judge must have meant to say. They sit to determine what he or she did say
and whether the words used demonstrate an error under the applicable standard of
appellate review.

Because I see no abuse of discretion in what the district judge did say here—with
or without the majority's criticism and clarification of State v. Jolly, 301 Kan. 313, 342
P.3d 935 (2015)—I agree that the Court of Appeals decision must be reversed and the
district court judgment affirmed.

NUSS, C.J., and JOHNSON, J., join the foregoing concurring opinion.

30