State v. Chairez

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NOT DESIGNATED FOR PUBLICATION

No. 117,580

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JONATHAN CHAIREZ,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Opinion filed October 5, 2018.
Affirmed.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Amy L. Aranda, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before BUSER, P.J., ATCHESON, J., and WALKER, S.J.

PER CURIAM: Jonathan Chairez appeals the district court's denial of his motion for
a durational departure sentence instead of imposition of a presumptive Jessica's Law
sentence. Chairez contends the district court erred when it denied his motion because it
inappropriately weighed mitigating circumstances with aggravating circumstances. Upon
our review, we are convinced the district court faithfully adhered to the procedures set
forth in State v. Jolly, 301 Kan. 313, 342 P.3d 935 (2015), and, as a result, did not err in
denying the departure motion. We affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

The State charged Chairez with two counts of aggravated criminal sodomy with a
child under 14 years of age, in violation of K.S.A. 2016 Supp. 21-5504(b)(1), and one
count each of rape in violation of K.S.A. 2016 Supp. 21-5503(a)(3), aggravated indecent
liberties with a child in violation of K.S.A. 2016 Supp. 21-5506(b)(3)(A), and battery in
violation of K.S.A. 2016 Supp. 21-5413(a)(1). In keeping with a plea agreement and
upon his no contest pleas, Chairez was found guilty of one count each of aggravated
criminal sodomy and battery. In return, the State dismissed the remaining charges. In
preparation for sentencing, the defense hired Dr. Jon Sward to conduct a sex offender
evaluation of Chairez.

Upon his conviction of aggravated criminal sodomy, Chairez filed a motion for a
downward durational departure from the presumptive sentence of life imprisonment. In
the motion, he listed several mitigating circumstances. First, he noted that his criminal
history consisted of only three minor offenses—a juvenile theft adjudication when he was
15 years old and two marijuana possession convictions. Second, Chairez asserted he was
"under the influence of extreme mental or emotional disturbances" at the time he
committed his current offenses. In support, he noted that Dr. Sward diagnosed him with
moderate chronic depression disorder and moderate to severe generalized anxiety
disorder. Third, Chairez cited Dr. Sward's evaluation that he "is an introverted feeling
with intuition personality type who may act out in ways that violate his higher ideals in a
quest for love, respect and acceptance." Finally, Chairez stated that Dr. Sward's
evaluation revealed that a high score in adverse childhood experiences likely explained
one cause of his criminal conduct. Chairez later filed a supplement to his motion adding
that he acted under extreme duress in committing his offenses.

At sentencing, Dr. Sward and the investigating law enforcement officer on the
case testified. After considering this testimony, the district judge stated:
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"The testimony that we've heard here today clearly indicates that Mr. Chairez has
a lot of issues that he's struggled with over his lifetime, still searching for the appropriate
way to deal with those issues. I believe Dr. Sward's evaluation was thorough and gave me
insight into what's going on with Mr. Chairez. That's half of the equation. One of the
things that he said that struck me the most was, I'm paraphrasing, Mr. Chairez has
problems with anger and he gets angry when he experiences a lack of control in sexual
relationships that may cause him to act out against those he can control, such as in this
case, a child victim. I would note from the facts that he exerted that control, even to a
greater degree, when he chose to blindfold his victim in this case."

The district court denied Chairez' motion for a durational departure and sentenced
him to a hard 25 life sentence for committing aggravated criminal sodomy. As a
consequence, Chairez is not eligible for parole for 25 years. A concurrent sentence of six
months in jail was imposed for the battery conviction.

Chairez appeals.

DENIAL OF THE MOTION FOR A DURATIONAL DEPARTURE SENTENCE

On appeal, Chairez contends the district court erred in denying his motion for a
durational departure sentence by failing to adhere to the procedure established by our
Supreme Court in Jolly, 301 Kan. 313.

When reviewing a district court's ruling on a motion for departure, an appellate
court applies an abuse of discretion standard. 301 Kan. at 324. "'A district court abuses its
discretion when: (1) no reasonable person would take the view adopted by the judge; (2)
a ruling is based on an error of law; or (3) substantial competent evidence does not
support a finding of fact on which the exercise of discretion is based.'" 301 Kan. at 325
(quoting State v. Smith, 299 Kan. 962, 970, 327 P.3d 441 [2014]).

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Chairez was convicted of aggravated criminal sodomy with a child under 14 years
of age. Defendants, like Chairez, who are 18 years of age or older when they commit this
crime shall be sentenced to life imprisonment with a mandatory minimum term of
imprisonment of not less than 25 years unless the judge finds substantial and compelling
reasons, following a review of mitigating circumstances, to impose a departure. K.S.A.
2016 Supp. 21-6627. This sentencing statute is colloquially known as Jessica's Law.
Jolly, 301 Kan. at 316.

Prior to our Supreme Court's opinion in Jolly, district courts considering departure
sentences in Jessica's Law cases were occasionally weighing aggravating factors against
mitigating factors. See 301 Kan. at 322-23 (listing cases). In Jolly, however, our Supreme
Court held that K.S.A. 21-4643(d) (now K.S.A. 2017 Supp. 21-6627[d]) forbade this type
of weighing analysis. 301 Kan. at 322. The Jolly court noted the plain language of the
statute "instructs the sentencing court to conduct a review of the mitigating circumstances
without balancing them against the aggravating ones." 301 Kan. at 322. Although
sentencing courts may not weigh aggravating factors against mitigating ones, "the facts of
the case—including any egregious ones—are essential for a judge to consider in deciding
if a departure is warranted based on substantial and compelling reasons." 301 Kan. at
323-24. Thus, the sentencing judge may consider "information that reasonably might bear
on the proper sentence for a particular defendant, given the crime committed, including
the manner or way in which an offender carried out the crime. This includes those
'circumstances inherent in the crime and the prescribed sentence.'" 301 Kan. at 324
(quoting State v. Florentin, 297 Kan. 594, 598, 303 P.3d 263 [2013]).

On appeal, Chairez argues that the district court failed to conduct an independent
review of the mitigating factors in his case and, instead, engaged in an improper weighing
of mitigating factors against aggravating ones. He cites two cases in support of his
argument.

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First, Chairez cites State v. McCormick, 305 Kan. 43, 378 P.3d 543 (2016), for the
proposition that an appellate court should reverse a Jessica's Law sentence where it is
unclear whether the district court weighed aggravating circumstances with mitigating
ones. There, "[t]he district judge discussed the mitigating factors advanced by
McCormick but emphasized, 'The problem is there's an aggravating factor here,' B.P.'s
extreme intoxication during the sexual intercourse." 305 Kan. at 46. In concluding there
were not substantial and compelling reasons for departure, the district judge explained
that even though there were several substantial mitigating factors, they were outweighed
by the aggravating factor that the victim was very inebriated. 305 Kan. at 46.

Our Supreme Court reversed the district court, holding:

"[W]here, as here, the district judge explicitly referred to the piece of evidence that
persuaded him as an 'aggravating factor,' we cannot be wholly confident that the statutory
command not to conduct weighing of aggravators and mitigators was followed. As we
said in Jolly, the sentencing judge may consider the manner in which a crime is
committed and the circumstances inherent in the crime, as well as whether mitigators that
are substantial and compelling justify a departure from Jessica's Law. But the judge may
not weigh aggravators and mitigators. That is exactly what the judge himself said he was
doing in this case." 305 Kan. at 50-51.

Chairez claims this case is similar to McCormick because the district judge
"engaged in balancing of the mitigating factors against the aggravated factors." He cites
the district court's comment that Dr. Sward's evaluation was only "half of the equation."
But the district court's remark here is not similar to the obvious Jolly violation in
McCormick. Here, the district court never referred to aggravating and mitigating factors,
or stated that one outweighed the other. Moreover, referring to the analysis as a two-part
equation is also not an error. The Jolly court established a two-part test—first the court
reviews the mitigating circumstances, and second the court determines whether those
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circumstances constitute substantial and compelling reasons to depart in light of the case
facts. Jolly, 301 Kan. at 324. Quite simply, McCormick is distinguishable from this case.

Chairez also cites State v. Powell, 53 Kan. App. 2d 758, 762, 393 P.3d 174 (2017),
rev'd 308 Kan. ____, 425 P.3d 309 (2018), for the proposition that the sentencing record
must be clear that the district court considered mitigating circumstances without
weighing them against aggravating factors. In Powell, our court reversed a district court's
ruling denying a motion for departure from a Jessica's Law sentence because it could not
"definitively determine from the record whether the sentencing court considered Powell's
claimed mitigating circumstances without weighing them against the State's aggravating
circumstances." 53 Kan. App. 2d at 762. The court remanded the case with instructions to
the district court to "demonstrate compliance with Jolly." Powell, 53 Kan. App. 2d at
762. Chairez argues that, like Powell, in the case on appeal it is also unclear as to whether
"the district court evaluated the mitigating circumstances to determine whether they
presented substantial and compelling reasons for departure before considering the
aggravated factors."

Since Chairez filed his appeal, our Supreme Court reversed our court's decision in
Powell. State v. Powell, 308 Kan. ___, 425 P.3d 309 (2018). The Supreme Court held that
a district court's failure to analyze the Jolly steps on the record is not reversible error. 425
P.3d at 318. It noted that K.S.A. 2017 Supp. 21-6627(d) does not require a district court
to state its reasons when it denies a departure motion. 425 P.3d at 318. Rather, the district
court is only required to explain its reasoning when it grants a departure motion. K.S.A.
2016 Supp. 21-6627(d)(1) ("If the sentencing judge departs from such mandatory
minimum term of imprisonment, the judge shall state on the record at the time of
sentencing the substantial and compelling reasons for the departure.").

Powell's teaching is consistent with other Kansas Supreme Court precedent, which
holds that a district court is not required to explain its analysis of mitigating factors when
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denying a motion for departure. State v. Harsh, 293 Kan. 585, 587, 265 P.3d 1161
(2011). The Powell court concluded that "the only question" in an appeal challenging the
denial of a departure from a Jessica's Law sentence "is whether something in the record
shows an abuse occurred." 425 P.3d at 320. As discussed earlier, in this case the district
court did not engage in a weighing of mitigating and aggravating circumstances nor did
the court make a statement suggesting it conducted such a weighing analysis.

Upon review of our Supreme Court's opinions in Jolly and Powell, we conclude
the district court did not err in denying Chairez' motion for a durational departure.

Affirmed.