State v. Jolly
| Decision Date | 20 February 2015 |
| Docket Number | 106,680. |
| Citation | 342 P.3d 935,301 Kan. 313 |
| Parties | STATE of Kansas, Appellant, v. William JOLLY, Appellee. |
| Court | Kansas Supreme Court |
301 Kan. 313
342 P.3d 935
STATE of Kansas, Appellant
v.
William JOLLY, Appellee.
106,680.
Supreme Court of Kansas.
Feb. 20, 2015.
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.
Opinion
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 State v. Jolly, No. 106,680, ––– Kan.App.2d ––––, 2012 WL 5519179, at *7 (Kan.App.2012) (unpublished opinion).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 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 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.
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, 249 P.3d 421, 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 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...
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