State v. Hansen

Decision Date13 May 2022
Docket Number124,090
Citation508 P.3d 1292 (Table)
Parties STATE of Kansas, Appellee, v. James E. HANSEN Jr., Appellant.
CourtKansas Court of Appeals

Jennifer C. Bates, of Kansas Appellate Defender Office, for appellant.

Jose V. Guerra, assistant county attorney, Todd Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.

Before Powell, P.J., Green, J., and Richard B. Walker, S.J.

MEMORANDUM OPINION

Per Curiam:

After pleading guilty to aggravated indecent liberties with a child, the trial court sentenced James E. Hansen Jr. to an off-grid hard 25 term of life imprisonment followed by lifetime postrelease supervision. Hansen appeals his sentence, arguing (1) that the trial court erred when it denied his departure motion and (2) that the trial court erred when it sentenced him to lifetime postrelease supervision. Although the trial court properly denied Hansen's departure motion, it should have sentenced Hansen to life imprisonment followed by lifetime parole . Thus, we affirm the trial court's denial of Hansen's departure motion but vacate the part of Hansen's sentence imposing lifetime postrelease supervision.

BACKGROUND

The facts of this case are undisputed. In June 2020, Hansen's relative, R.F., alleged that Hansen touched his penis through his clothing a year or so earlier when he was under 14 years old. In October 2020, Detective Heather Mowery interviewed Hansen about R.F.'s sexual abuse allegation. During that interview, Hansen admitted that he had previously "manipulated" R.F.'s penis through R.F.'s clothing until R.F. had an erection. He told Detective Mowery that the incident happened in his bedroom as R.F. played on his computer. And Hansen told Detective Mowery that he stopped touching R.F.'s penis when R.F. told him to stop.

Following this admission, the State charged Hansen with one count of aggravated indecent liberties with a child, an off-grid person felony in violation of K.S.A. 2020 Supp. 21-5506(b)(3)(A) and (c)(3). Eventually, Hansen entered into a plea agreement with the State under which he agreed to plead guilty as charged to aggravated indecent liberties with a child. Under his plea agreement, Hansen could also move for a durational departure at sentencing. In exchange for his guilty plea, the State agreed that it would not charge Hansen for any other sex crimes discovered while investigating R.F.'s sexual abuse allegation. During his interview with Detective Mowery, Hansen admitted that he touched other relatives—R.F.'s five siblings—in a sexual manner when they were minors.

After pleading guilty to aggravated indecent liberties with a child in accordance his plea agreement, Hansen moved for a durational departure under K.S.A. 2020 Supp. 21-6627(d). In his motion, Hansen recognized that his crime was classified as an off-grid felony carrying a life sentence with a mandatory 25 years' imprisonment before the possibility of parole under K.S.A. 2020 Supp. 21-6627(a)(1). Yet, he argued that the trial court should depart from this sentence because there were substantial and compelling reasons under K.S.A. 2020 Supp. 21-6627(d)(2) to sentence him as if he had committed a severity level 3 person crime under the revised Kansas Sentencing Guidelines Act (KSGA) grid; such a sentence would require Hansen to serve 61, 66, or 71 months' imprisonment before his release based on his criminal history score of H.

In his motion, Hansen argued that he was less likely to reoffend in the future, and thus posed a lower safety risk to others, for several reasons: (1) because his criminal history consisted of two nonviolent misdemeanors, (2) because he intended to complete the sex offender treatment program while in prison, (3) because he was statutorily required to register as a sex offender for life no matter what sentence the trial court imposed, (4) because he was statutorily required to serve lifetime postrelease supervision even if the trial court grant his motion, and (5) because he was nearly 50 years old. As to this final point, Hansen cited a study that found "that offenders over the age of 50 have a recidivism rate of only 9.5%." Hansen also suggested that he posed a lower risk of recidivism because his family no longer sees him. He alleged that because "there [was] no evidence to suggest that [he] ever inappropriately touched anyone not related to him," his family no longer seeing him meant that he posed no risk to the "community-at-large."

In addition to his recidivism arguments, in his motion, Hansen argued that there were substantial and compelling reasons to grant his departure motion because he had accepted responsibility for his criminal behavior. Although not entirely clear, Hansen seemingly asserted that he had taken responsibility for his criminal behavior because he had remained in custody since his arrest. He stressed that because he pleaded guilty, he "saved the victims from the hassle and possible embarrassment from testifying in open court." And somewhat relatedly, he asserted that the trial court should grant his motion because in committing aggravated indecent liberties against R.F., R.F. suffered no physical injuries.

At his sentencing hearing, Hansen repeated the arguments in his durational departure motion. The State opposed Hansen's motion, arguing that he failed to assert any substantial and compelling reasons to support a durational departure to 61, 66, or 71-months' imprisonment. To support its argument, it had Deputy Mowery testify about Hansen admitting that he had sexual abused R.F. as well as R.F.'s five siblings over the span of many years. Relying on this testimony, the State argued that Hansen posed a greater risk of reoffending than other individuals with his low criminal history. It argued that even though Hansen was nearly 50 years old, a 61-, 66-, or 71-month prison sentence was not long enough to make his age a mitigating factor. It asserted that Hansen's argument about the lack of physical injuries to R.F. ignored that the Legislature categorized his crime as an off-grid person felony. See K.S.A. 2020 Supp. 21-5506(b)(3)(A), (c)(3). Also, it asserted that Hansen's arguments ignored that he had taken advantage of "children [who] trusted [him]" as family.

After hearing these arguments, the trial court gave Hansen the opportunity to address it directly. Hansen took this opportunity to tell the trial court the following:

"I [want to] apologize for my—to my family members that I have wronged them, and if I caused them any mental hardship over this, I apologize. And I was acting under impulse and did not think of my consequences on—when I did my actions, and request leniency on the Court."

Immediately after Hansen said this, the trial court denied Hansen's durational departure motion. In doing so, it found that Hansen's willingness to complete the sex offender treatment program did not entitle him to a departure sentence because it had not seen any study about the program's effectiveness. It found that the fact that Hansen would be placed on lifetime postrelease supervision after his release from prison should it grant his motion did not entitle Hansen to a departure. It explained that Hansen needed prison's full-time monitoring to protect others from his criminal behavior. It also found that the fact that Hansen had already served 228 days in jail was irrelevant for purposes of determining whether he was entitled to a departure.

Then, the trial court addressed the nature of Hansen's criminal behavior. It questioned whether Hansen had pleaded guilty because he accepted responsibility for his criminal behavior or pleaded guilty to avoid prosecution for his sex crimes against R.F.'s siblings. It noted that studies support that child victims of sexual abuse suffer long-term emotional consequences. It thus found that the "damage" Hansen inflicted was "immense." And it took issue with Hansen's argument about R.F. suffering no physical injuries (1) because Hansen's crime was "a violent offense under Kansas law" and (2) because R.F. was "a helpless child ... who could not defend himself." As a result, the trial court found that the nature of Hansen's crime against R.F. as well as the evidence indicating that Hansen committed similar crimes against other relatives, meant that Hansen's age, lack of criminal history, and alleged acceptance of responsibility were not substantial and compelling reasons to grant his durational departure motion.

Afterwards, the trial court sentenced Hansen to a hard 25 term of life imprisonment followed by lifetime postrelease supervision. Hansen timely appeals this sentence.

ANALYSIS

Hansen argues that the trial court erred when it sentenced him to life imprisonment followed by lifetime postrelease supervision. Hansen's primary argument is that the trial court abused its discretion when it denied his durational departure motion. He contends that the factors he cited in his durational departure motion cumulatively constituted substantial and compelling reasons entitling him to a departure. Hansen's other argument is that the trial court erred when it ordered him to serve lifetime postrelease supervision should he ever be released from prison. He argues that the applicable statutes and caselaw establish that should he ever be released from prison, he will be paroled.

The State responds that the trial court's denial of Hansen's durational departure motion was reasonable under the facts of his case. As for Hansen's argument that the trial court erred by ordering him to serve lifetime postrelease supervision should he ever be released from prison, the State concedes that the trial court erred in this respect.

Hansen pleaded guilty to aggravated indecent liberties with a child contrary to K.S.A. 2020 Supp. 21-5506(b)(3)(A). Subsection (c)(3) of K.S.A. 2020 Supp. 21-5506 states that this crime is an off-grid person felony because Hansen committed the crime when he was over 18 years old. Meanwhile, K.S.A. 2020 Supp. 21-6627(a)(1) provides that...

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