State v. Marley

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NOT DESIGNATED FOR PUBLICATION

No. 114,623

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROGER DANIEL MARLEY,
Appellant.


MEMORANDUM OPINION

Appeal from Barton District Court; RON SVATY, judge. Opinion filed July 29, 2016. Affirmed.

Ryan Eddinger, of Kansas Appellate Defender Office, for appellant.

Douglas A. Matthews, county attorney, and Derek Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., GREEN, J., and STUTZMAN, S.J.

Per Curiam: Roger Daniel Marley appeals the denial of his motion to depart from
an off-grid sentence to an on-grid sentence based upon his plea of no contest to one count
of rape in violation of K.S.A. 2014 Supp. 21-5503(a)(3) and (b)(2). We find no abuse of
discretion in the denial of his departure motion and affirm.

FACTS

Marley's victim was his daughter, K.M., who was 11 years old at the time.
Sentencing was initially set for May 22, 2015. At the hearing, C.J. Pata, an investigator
for the Department for Children and Families, presented a victim impact statement to the
district court. According to Pata, K.M. had been raped, sodomized, forced to perform oral
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and manual copulation, forced to watch pornography, and was repeatedly beaten and
threatened by Marley. At sentencing, Marley moved for a dispositional departure to an
on-grid sentence. Marley cited his limited criminal history, acceptance of responsibility,
and sincere remorse for his actions as factors supporting the departure. The district court
asked Marley about the allegations in the victim impact statement. Marley denied many
of the allegations but admitted to touching his daughter. Based on Marley's attorney's
motion, the district court continued the May 22, 2015, hearing. However, before
concluding the hearing, the district court stated:

"I cannot honor a departure if he did what his daughter said he did . . . if what his
daughter said happened, I don't think it's in his daughter's best interest for me to say, oh,
this guy, we'll just put him in prison for 176 months, and he'll be lifetime registration. I
don't think that's in her best interest if that's what happened, and he's sitting here saying it
didn't happen."

Additionally, the district court stated:

"We'll come back here June 12th, and you know I'm not honoring any departure thing.
You're going to prison for life if we stick with where we're at, because I don't care what
you say you did, okay. And that way, if you want to withdraw your plea, I'll let you."

After the May 22, 2015, hearing, Marley's attorney, Robert A. Anderson, Sr., was
allowed to withdraw and Paul Oller was court appointed to take over as Marley's
attorney. Sentencing finally occurred on July 20, 2015. Marley advised the district court
he did not want to withdraw his plea and was ready to proceed with sentencing. The
district court gave Marley his opportunity for allocution and to present mitigating
evidence. Marley generally stated he was sorry but did not acknowledge or give details of
any specific acts he committed. The district court denied Marley's departure motion,
sentencing him to lifetime imprisonment with a mandatory minimum term of
imprisonment of not less than 25 years. The district court stated: "[T]his is my second
time actually facing this decision, and the first time I basically told the defendant I wasn't
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going to go grid, and I don't think my mind's changed." The district court did not make
any specific findings on the record regarding the factors cited in Marley's departure
motion.

Marley timely appealed.

ANALYSIS

No Abuse of Discretion to Deny Marley's Motion for a Dispositional Departure

Standard of Review

An appellate court will not reverse a sentencing court's denial of a departure
motion under Jessica's Law unless the sentencing court's findings of fact are not
supported by substantial competent evidence or the sentencing court abused its
discretion in considering the mitigating and/or aggravating circumstances. State v.
Floyd, 291 Kan. 859, 862, 249 P.3d 431 (2011). When the defendant does not
contend the trial court made an error of law or fact, the appellate court's standard
of review is whether no reasonable person would have agreed with the judge's
decision in light of the aggravating and mitigating factors found by the judge.
State v. Florentin, 297 Kan. 594, 599, 303 P.3d 263 (2013). The trial court is not
required to make findings or state its reasons when denying a departure request
under Jessica's Law. State v. Dull, 298 Kan. 832, 842, 317 P.3d 104 (2014).

Discussion

Marley argues the district court abused its discretion by denying his departure
motion. An abuse of discretion occurs where a judicial action is: (1) arbitrary, fanciful,
or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v.
Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). Under K.S.A. 2015 Supp. 21-6627,
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commonly referred to as Jessica's Law, a first-time offender convicted of rape in
violation of K.S.A. 2015 Supp. 21-5503(a)(3) must be sentenced to lifetime
imprisonment with a mandatory minimum term of imprisonment of not less than 25
years. A lesser sentence cannot be imposed unless the sentencing court finds substantial
and compelling reasons, following a review of mitigating circumstances, to impose a
departure. State v. Floyd, 296 Kan. 685, 687, 294 P.3d 318 (2013).

K.S.A. 2015 Supp. 21-6627(d)(2) provides a nonexclusive list of mitigating
circumstances the sentencing court may consider. There is no formula for the analysis of
these factors. The statutory factors do not constitute per se substantial and compelling
reasons for a departure sentence. State v. Ortega-Cadelan, 287 Kan. 157, 165, 194 P.3d
1195 (2008). Marley cites to only one of these statutory factors—his limited criminal
history. The list is nonexclusive, however, so a sentencing court may consider
nonstatutory factors as long as they are consistent with the principles underlying the
Kansas Sentencing Guidelines Act. State v. Blackmon, 285 Kan. 719, 725, 176 P.3d 160
(2008). Marley further asserts his no contest plea to the charge reflects sincere remorse
and acceptance of responsibility as nonstatutory mitigating factors.

Marley errs in arguing that his plea of no contest constitutes an acceptance of
responsibility. A no contest plea is a plea where the defendant does not expressly admit
his or her guilt to the charge. State v. Case, 289 Kan. 457, 461, 213 P.3d 429 (2009).
Marley's plea of no contest does not, as a matter of law, constitute an acceptance of
responsibility. See K.S.A. 22-3209(2); Case, 289 Kan. at 461. Marley expressly denied
the bulk of the accusations against him as detailed in the victim impact statement.

Marley's sincere remorse for his actions is not a factor this court can properly
assess. Whether Marley showed sincere remorse raises a question of his credibility and
demeanor, which is a question exclusively for the trial court to determine. See State v.
Ruden, 245 Kan. 95, 106, 774 P.2d 972 (1989).

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A reasonable factfinder could conclude Marley's motion for departure was
insufficient as it lacked substantial and compelling mitigating factors to grant his
departure motion to a grid sentence. While the district court did not make an explicit
finding on the record as to the factors Marley cited in his departure motion, the district
court stated its reasons for finding a departure was inappropriate. In any case, a specific
on-the-record explanation was not required. See Dull, 298 Kan. at 842. Based on the
record before us, we cannot find a reasonable person would disagree with the district
court's decision to deny Marley's motion to depart to a grid sentence. We find no abuse of
discretion and affirm.

Affirmed.