State v. Ortega
| Decision Date | 01 November 2019 |
| Docket Number | No. 120,164,120,164 |
| Citation | 482 P.3d 1154 (Table) |
| Parties | STATE of Kansas, Appellee, v. Ernest James ORTEGA, Appellant. |
| Court | Kansas Court of Appeals |
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Atcheson, P.J., Malone, J., and Daniel D. Creitz, District Judge, assigned.
Ernest James Ortega appeals from the district court's imposition of two consecutive life sentences with a minimum mandatory 50 years of incarceration before being eligible for parole. On appeal, Ortega claims that the district court abused its discretion when it imposed consecutive sentences. In support of this claim, Ortega asserts that his plea prevented further trauma to victims by bypassing a trial and that he accepted responsibility for his actions. Moreover, Ortega notes that he will be 98 years old at the time of his parole eligibility, which makes it a near certainty that he will die while incarcerated.
The Kansas Supreme Court has held that imposing consecutive sentences despite the defendant's remorse, the avoidance of a trial, or the age of the defendant does not constitute an abuse of discretion. Accordingly, Ortega's claim lacks merit and we affirm Ortega's consecutive life sentences.
The State charged Ortega with 28 counts of criminal conduct on February 9, 2017. These charges included rape, aggravated indecent liberties with a child, aggravated criminal sodomy, and other sexually violent crimes. On July 18, 2017, the State later amended the information with three additional counts.
On March 5, 2018, the district court held a plea hearing. At the plea hearing, this exchange occurred:
Ortega entered a plea corresponding to the "Tender of Plea" document. Paragraph 12 (a) of that document reads:
"I have agreed, and hereby agree, to enter a plea to the following charge(s) alleged against me in 17CR1649: a plea of guilty to Count 1: Rape, a violation of K.S.A. 21-5503(a)(3) & (b)(2), an offgrid, person felony; a plea of no contestto a plea of guilt toCount 3: Aggravated Criminal Sodomy, a violation of K.S.A. 21-5504(b)(1) & (c)(3), an offgrid, person felony; a plea of guilty to Count 5: Aggravated Criminal Sodomy, a violation of K.S.A. 21-5504(b)(1) & (c)(3), an offgrid, person felony; a plea of guilty to Count 12: Criminal Sodomy, a violation of K.S.A. 21-5504(a)(3), a level 3, person felony; a plea of guilty to Count 17: Indecent Liberties with a Child, a violation of K.S.A. 21-5506(a)(1), a level 5, person felony; and a plea of guilty to Count 21: Sexual Exploitation of a Child, a violation of K.S.A. 21-5510(a)(1), a level 5, person felony; Count 29: Aggravated Indecent Liberties with a Child, a violation of K.S.A. 21-5506(b)(3)(A), an offgrid person felony"
Finally, the district court sentenced Ortega on July 19, 2018. First, the district court heard argument from counsel and permitted several people to read victim impact statements. After hearing the statements, the district court entered its sentence. For Ortega's on-grid convictions, the district court imposed 59 months of incarceration for Count 12 (criminal sodomy) and 32 months of incarceration for Count 21 (sexual exploitation of a child). The district court ordered these counts to run concurrently and imposed "lifetime parole."
For each of the off-grid counts, the district court imposed "life in prison, with a minimum mandatory of 25 years before being eligible for parole" for Count 1 (rape), Count 3 (aggravated criminal sodomy), Count 5 (aggravated criminal sodomy), and Count 29 (aggravated indecent liberties with a child). Again, the district court imposed lifetime parole for each. Then the district court concluded:
Ortega timely appealed.
Ortega raises one issue on appeal. He claims that the district court abused its discretion when it doubled "the minimum before parole eligibility." He claims that by accepting the plea deal, Ortega prevented "further harm to the complaining witnesses" because those witnesses did not have to testify at a criminal trial. Ortega will be 98 years old at the time of his parole eligibility, which makes his death in prison essentially "a certainty." Because "Ortega accepted responsibility for his actions" and because Ortega is "likely to die in prison, even with concurrent sentences," Ortega claims that the district court abused its discretion in ordering consecutive sentences.
K.S.A. 2018 Supp. 21-6819(b) provides discretion to the district court "to impose concurrent or consecutive sentences in multiple conviction cases." Further, that statute provides: "The sentencing judge may consider the need to impose an overall sentence that is proportionate to the harm and culpability and shall state on the record if the sentence is to be served concurrently or consecutively." K.S.A. 2018 21-6819(b).
Accordingly, this court must review the district court's sentencing decisions for an abuse of discretion. A judicial action constitutes an abuse of discretion if (1) no reasonable person would take the view adopted by the trial court; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Marshall , 303 Kan. 438, 445, 362 P.3d 587 (2015).
An abuse of discretion occurs if discretion is guided by an erroneous legal conclusion or goes outside the framework of or fails to consider proper statutory limitations or legal standards. See State v. Collins , 303 Kan. 472, 477, 362 P.3d 1098 (2015). The party asserting the trial court abused its discretion bears the burden of showing such abuse of discretion. State v. Robinson , 303 Kan. 11, 90, 363 P.3d 875 (2015).
Ortega's Claim Lacks Merit .
The Kansas Supreme Court held that a district court's imposition of consecutive sentences was not an abuse of discretion, despite the defendant accepting responsibility and agreeing to anger management classes. State v. Brune , 307 Kan. 370, 372-73, 409 P.3d 862 (2018). Our Supreme Court noted that a "sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation." 307 Kan. at 373 (quoting Ewing v. California , 538 U.S. 11, 25, 123 S. Ct. 1179, 155 L. Ed. 2d 108 [2003] ). The district court noted that the defendant killed several people in their home for their belongings, that the killings were premeditated, and that the defendant later blamed his victims. Because the district court articulated its reason for imposing the sentences consecutively—the seriousness of his crimes—the district court did not abuse its discretion. 307 Kan. at 373.
Further, the Kansas Supreme Court upheld a district court's imposition of consecutive sentences, even after the district court failed to provide an on-the-record explanation of its reasoning. See State v. Frecks, 294 Kan. 738, Syl. ¶ 2, 738, 280 P.3d 217 (2012). Frecks requested his sentences run concurrently. At sentencing, the district court imposed consecutive sentences for two counts of aggravated indecent liberties with a child. On appeal, the defendant argued that he took responsibility by entering a plea, prevented further trauma to the victims by avoiding a trial, saved the State the expense of the trial, and had no previous criminal history.
The Kansas Supreme Court noted that the district court failed to "provide specific reasons for imposing life sentences in this case, saying only: ‘Based upon the plea negotiations and the allegations surrounding the plea and the filing documents, these will run consecutive to one another.’ " 294 Kan. at 741-42. Our Supreme Court highlighted the district court's sparse explanation, but it affirmed the district court regardless:
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