State v. Roth

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NOT DESIGNATED FOR PUBLICATION

No. 115,649

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ADAM LEVI ROTH,
Appellant.


MEMORANDUM OPINION

Appeal from Cowley District Court; NICHOLAS M. ST. PETER, judge. Opinion filed March 10,
2017. Affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Christopher E. Smith, county attorney, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., HILL, J., and WALKER, S.J.

Per Curiam: Adam Levi Roth pled no contest to and was convicted of one count
each of aggravated indecent liberties with a child and aggravated criminal sodomy
involving various acts with his 5-year-old niece. Roth was 20 years old at the time of his
offense. Roth filed a motion for a departure sentence and requested the court not to
impose a life sentence for his crimes. At his original sentencing hearing, the district court
denied Roth's motion for a departure sentence and sentenced him to two concurrent life
sentences without the possibility of parole for 25 years.

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Roth appealed from his sentencing. A panel of this court affirmed the sentence as
reasonable. State v. Roth, No. 110,122, 2014 WL 3397176, at *2 (Kan. App. 2014)
(unpublished opinion), rev. denied 302 Kan. 1019 (2015). While a petition for review
was pending, our Supreme Court issued its decision in in State v. Jolly, 301 Kan. 313,
342 P.3d 935 (2015), finding that neither the district court nor an appellate court should
weigh aggravating factors against mitigating factors in a Jessica's Law case. 301 Kan.
313, Syl. ¶¶ 5, 6. Accordingly, the Supreme Court remanded Roth's case to the Court of
Appeals for consideration based on Jolly. The panel then vacated Roth's life sentences,
finding the sentencing procedure did not conform to the Jolly standards, and remanded
for resentencing. State v. Roth, No. 110,122, 2015 WL 5009336, at *1 (Kan. App. 2015)
(unpublished opinion).

Following remand to the district court, a new sentencing hearing was held. At this
hearing, defense counsel argued that there were substantial and compelling reasons to
depart from the plea agreement and to impose a lesser sentence than Roth had previously
received. Counsel noted Roth was 20 years old at the time of the offense and that he had
no record of prior sexual offenses. Counsel pointed out that Roth's only person felony
was a burglary he committed when he was 16 years old. Counsel also discussed Roth's
mental health issues and referred to a psychosexual evaluation suggesting that therapy
and some intervention and professional attention could be very helpful to Roth. Defense
counsel did not request any particular length of sentence but simply asked for a sentence
that would still allow him to have a life ahead for himself and suggested a dispositional
departure. In light of the prior plea agreement, the State elected to remain silent.

The court agreed that Roth was a very young man whose criminal history was
largely based on a juvenile conviction. In addition, the court recognized that Roth had no
prior convictions for sexual offenses and that these were all mitigating factors. The court
also noted there was some evidence that mental health treatment might be beneficial as
well. Ultimately, the district court decided to depart from the lifetime sentences to grid
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sentences for aggravated criminal sodomy as a several level 1 felony and aggravated
indecent liberties with a child as a severity level 3 felony. The court imposed a sentence
of 285 months—the aggravated sentence in the 1-C grid box on the aggravated sodomy
charge—and a sentence of 61 months—the aggravated sentence in the 3-I box—for the
aggravated indecent liberties charge. The court ordered the sentences to run consecutively
for a controlling term of 346 months' incarceration. The court rejected Roth's request for
any dispositional departure in light of the evidence that there was no type of intensive
structure treatment program that could help Roth in the community. Roth timely appealed
from the new sentence.

On appeal, Roth contends the district court improperly denied his motion for
dispositional departure solely based on the lack of local resources available to provide the
substantially structured treatment recommended by a psychosexual report. Roth argues
the court failed to consider whether there were other facilities outside the county that
could provide such treatment. In essence, Roth argues the district court made an error of
fact and thereby abused its discretion.

An appellate court will reverse a sentencing court's denial of a motion for
departure under Jessica's Law only if the sentencing court abused its discretion in
considering the mitigating factors and circumstances of the case. Jolly, 301 Kan. at 325.
A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful,
or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State
v. Moyer, 302 Kan. 892, 906, 360 P.3d 384 (2015). An appellant claiming an abuse of
discretion bears the burden of showing such abuse occurred. State v. Stafford, 296 Kan.
25, 38, 290 P.3d 562 (2012).

Roth's convictions were for off-grid felonies under what is colloquially known as
Jessica's Law. Under K.S.A. 2016 Supp. 21-6627, a defendant over the age of 18 years
who is convicted of a Jessica's Law offense is subject to a term of imprisonment of life
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without parole for 25 years unless certain exceptions apply. K.S.A. 2016 Supp. 21-
6627(a)(1), (c). However, subsection (d)(1) permits a departure from the lifetime
sentence if appropriate mitigating factors are shown to be a substantial and compelling
reason for a departure; such a departure would be to the grid sentence for the crime.
K.S.A. 2016 Supp. 21-6627(d)(1).

The granting of the departure from a lifetime term results in the defendant being
sentenced on the revised Kansas Sentencing Guidelines Act grid. Once on the grid, the
trial court can choose to further depart from the sentencing grid. State v. Gilliland, 294
Kan. 519, 551, 276 P.3d 165 (2012). If the trial court chooses to further depart, however,
it must justify both the departure from the mandatory off-grid sentence and the departure
from the presumptive guidelines sentence. 294 Kan. at 551. A departure to a grid
sentence under this provision is also subject to the limitations of K.S.A. 2016 Supp. 21-
6818. See K.S.A. 2016 Supp. 21-6627(d)(1); State v. Spencer, 291 Kan. 796, 826, 248
P.3d 256 (2011). K.S.A. 2016 Supp. 21-6818 prohibits the granting of a downward
dispositional sentence for any crime of extreme sexual violence as defined in K.S.A.
2016 Supp. 21-6815; a crime involving an act of sexual intercourse, sodomy, or lewd
fondling of a child less than 14 years of age is defined as a crime of "extreme sexual
violence." K.S.A. 2016 Supp. 21-6815(c)(2)(F)(i)(c).

Based on the clear statutory provisions, the district court was prohibited from
granting Roth a dispositional departure under K.S.A. 2016 Supp. 21-6818. Also, to the
extent Roth may be arguing the court should have reduced his sentence from the
sentencing grid, his argument fails. First, his claim that the district court made an error of
fact is not supported by the record. While the district court did note that there were no
programs of the structure needed in Cowley County, Roth failed to present any evidence
of adequate programs that were available and suitable based on the suggestions of his
psychosocial evaluation. Thus, Roth has shown no "mistake of fact" made by the court.
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Again, the party claiming an abuse of discretion bears the burden of showing such abuse
occurred. Stafford, 296 Kan. at 38.

Finally, it is clear that the district court's decision not to depart further was based
on a review of the totality of the evidence. Although the court acknowledged the
psychosocial report, it also recognized that Roth denied the crime, that he was evaluated
as a high to intermediate risk to reoffend, and that he had a significant impairment in
controlling his impulses. For all these reasons, the district court did not abuse its
discretion in failing to grant a further departure sentence in this case.

Affirmed.