State v. Powell

• Citation: 425 P.3d 309
• Decision Date: 24 August 2018
• Docket Number: No. 115,457,115,457
• Parties: STATE of Kansas, Appellee, v. Kurt POWELL, Appellant.
• Court: United States State Supreme Court of Kansas

425 P.3d 309

STATE of Kansas, Appellee,

v.Kurt POWELL, Appellant.

No. 115,457

Supreme Court of Kansas.

Opinion filed August 24, 2018.

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, 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 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.

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.

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 theinformation 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...