State v. Jolly

• Decision Date: 09 November 2012
• Docket Number: No. 106,680.,106,680.
• Citation: 288 P.3d 159
• Parties: STATE of Kansas, Appellant, v. William JOLLY, Appellee.
• Court: Kansas Court of Appeals

288 P.3d 159

STATE of Kansas, Appellant,

v.William JOLLY, Appellee.

No. 106,680.

Court of Appeals of Kansas.

Nov. 9, 2012.

Appeal from Saline District Court; Rene S. Young, Judge.

Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellant.

Janine Cox, of Kansas Appellate Defender Office, for appellee.

Before MARQUARDT, P.J., McANANY and BUSER, JJ.

MEMORANDUM OPINION

PER CURIAM.

The State appeals the district court's second downward departure sentence to William Jolly after the Kansas Supreme Court remanded his case for resentencing. See State v. Jolly, 291 Kan. 842, 249 P.3d 421 (2011). We reverse and remand for resentencing.

Jolly was charged with one count of rape of a child under 14 years of age, in violation of K.S.A. 21–3502(a)(2) and (c), and one count of an off-grid aggravated indecent liberties with a child under 14 years old, a person felony pursuant to K.S.A. 21–3504(a)(3)(A) and (c). Jolly pled guilty to the rape charge, and the State agreed to dismiss the aggravated indecent liberties charge. Jolly requested a departure from a Jessica's Law life sentence under K.S.A. 21–4643(a). The sentencing court granted Jolly's departure request, and he was sentenced to 165 months' imprisonment with lifetime postrelease supervision.

Jolly appealed, and our Supreme Court held that the district court failed to follow the correct procedural steps in imposing Jolly's departure sentence; therefore, it determined that the sentence was illegal and remanded the case for resentencing.

Facts

In June 2007, 12–year–old C.E. was sexually assaulted by her mother's boyfriend. After that, she went to live with her grandmother R.E. On July 15, 2007, C.E. was invited by Jolly's stepson to come over to Jolly's mother's house to play. Jolly's family and C.E.'s family were long-time friends. Because of this relationship with the family, Jolly knew that C.E. had recently been sexually abused by her mother's boyfriend.

At some time during the day on July 15, 2007, Jolly was lying on a bed in the basement of his mother's home when C.E. came downstairs and “snuggled up” to him. He stated that “one thing led to another with me wondering how much had happened at her home with her mother's B/F and how many things happened so I began caressing her and progessed [ sic ] in steps to see how far she would let me go.” Jolly began by touching C.E.'s breasts and then he began rubbing her vagina. He penetrated her vagina with his finger, and in his statement to the investigating officer, Jolly said

“that at this point his whole ‘mindset changed’ from ‘clinical exploration to more the lover attitude to make her feel good.’ He then pulled his penis out of his pants and rubbed it on C.E. to become erect. Jolly penetrated C.E.'s vagina with his penis and only removed it when he heard a noise that caused him to ‘snap back to reality.’ C.E. then left Jolly's residence and later reported the incident to her grandmother.” Jolly, 291 Kan. at 844.

At Jolly's resentencing hearing, the court heard arguments from counsel and statements from C.E.'s grandmother and Jolly. Jolly again requested a downward departure sentence. Jolly's counsel stated that: (1) he was eligible for a departure because he had no prior record; (2) Dr. Barnett's evaluation indicated that Jolly was not a risk to the community; and (3) Jolly's “admission and cooperation have resulted in the victim not being further harmed by his acts.”

In opposing Jolly's request for a departure, the State argued that aggravating factors existed in this case, specifically emphasizing the vulnerable position of C.E. as a recent victim of sexual abuse by her mother's boyfriend. The State pointed to the fact that Jolly was a long-time family friend and that he chose to violate C.E.'s trust and rape her despite her vulnerability. In addition, the State asked the court to disregard Dr. Barnett's evaluation because it was based on inaccurate information provided to Dr. Barnett by Jolly. The State asked the court to consider the statements of C.E.'s grandmother, who testified about the trauma suffered by C.E. and her opinion that Jolly should not receive any leniency in sentencing. Finally, the State asked the court to consider that C.E. wished Jolly would receive the most time possible and spend the remainder of his life in jail.

C.E.'s grandmother stated that she did not believe that the court “should let him out, any good time, or anything at all.” C.E.'s grandmother stated that Jolly “knew everything that was happening [in] [C.E.]'s life and he chose that moment to rape her.” C.E.'s grandmother stated that Jolly violated C.E.'s trust and that “she will never be the same.”

After hearing from C.E.'s grandmother and the arguments of counsel, the resentencing court granted Jolly's downward departure motion, finding there were substantial and compelling reasons to depart from mandatory sentence under Jessica's Law. Jolly was sentenced to 165 months' imprisonment, the aggravated sentence on the sentencing grid.

The resentencing judge stated:

“[T]he court notes that [C.E.], there's no doubt she has gone through more than any child should ever have to go through, and she has been subject to acts committed by this defendant and by another defendant that she, certainly, never should have been subject to. And it is—I don't think any sentence imposed by this court can—can ever make it right with [C.E.], what she has gone through. However, this court must consider whether or not there are substantial and compelling reasons to grant a departure from the Jessica's Law sentence, which is life imprisonment without the chance for parole for 25 years.

“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, 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.

“Secondly, the 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.

“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.”

On the resentencing journal entry, the district court listed three reasons for the departure:

“1. Defendant has no criminal history.

“2. Defendant took responsibility for his actions by pleading guilty and victim was not required to testify at trial.

“3. Dr. Barnett found no evidence of anti-social behaviors, previous molestation history, mental illness; therefor [ sic ] Defendant less of a danger to society. Defendant does not possess traits as a pedophile or sexual predator.”

The State timely appeals.

“In Jessica's Law and non-Jessica's Law sentencing departure cases: (1) When the question is whether the record supported a sentencing judge's particular articulated reasons for departure, an appellate court's standard of review is substantial competent evidence; (2) when the question is whether a sentencing judge correctly concluded that particular mitigating factors constituted substantial and compelling reasons to depart in a particular case, including whether those mitigating factors outweighed any aggravating factors if such a balance is necessary, the appellate standard of review is abuse of discretion; (3) when the question is whether a particular mitigating or aggravating factor can ever, as a matter of law, be substantial and compelling in any case, the appellate standard of review is de novo; and (4) when the challenge focuses on the extent of a durational departure, the appellate standard of review is abuse of discretion, measuring whether the departure is consistent with the purposes of the guidelines and proportionate to the crime severity and the defendant's criminal history.” State v....