State v. Tumberg

1

NOT DESIGNATED FOR PUBLICATION

No. 116,608

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WENDELL E. TUMBERG,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed August 10, 2018.
Affirmed.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ARNOLD-BURGER, C.J., BUSER and SCHROEDER, JJ.

BUSER, J.: Wendell E. Tumberg appeals the sentences imposed upon his
convictions of four off-grid felony counts of aggravated indecent liberties with a 9-year-
old child. He raises four issues on appeal. First, Tumberg contends the State violated the
plea agreement by arguing the "double rule" of K.S.A. 2017 Supp. 21-6819(b)(4) would
apply if the district court departed from the presumptive life sentences without the
possibility of parole for 25 years (Hard 25 life sentences). Second, Tumberg claims the
district court violated K.S.A. 2017 Supp. 21-6627(d) as interpreted by State v. Jolly, 301
Kan. 313, 342 P.3d 935 (2015) when denying his departure motion.
2

Tumberg's third contention is that the district court abused its discretion by making
an error of law regarding the procedure required to impose the departure sentences he
requested. Finally, Tumberg asserts the district court abused its discretion by finding that
no substantial and compelling reasons existed for departing from the Hard 25 life
sentences. Upon our review, we find no error by the district court and affirm the
sentences.

FACTUAL AND PROCEDURAL BACKGROUND

On May 28, 2015, Tumberg's girlfriend and her 9-year-old daughter, A.R., moved
in with him. During the next 19 days, Tumberg sexually assaulted A.R. several times.
After his girlfriend saw Tumberg and A.R. together in a bathtub, A.R. was taken to a
hospital. A sexual assault examination revealed that A.R. had redness on her vaginal area.

When interviewed, A.R. described the incident in the bathtub. She explained that
she was sitting between Tumberg's legs and Tumberg had his finger in her vagina. A.R.
reported that Tumberg would kiss and lick her mouth and cheeks. According to A.R.,
Tumberg made her touch his penis and he would sometimes touch her chest.

In addition to the bathtub incident, A.R. recounted three specific occasions when
Tumberg touched her vagina while they were on a couch. A.R. explained that Tumberg
would sit next to her in his underwear and touch her vagina "a lot," rubbing his hand up
and down her vaginal area. Tumberg would put his hand in A.R.'s underwear, put his
finger inside her vagina, and move his finger up and down. Tumberg told his girlfriend
that he was teaching A.R. how to masturbate.

Pursuant to a plea agreement with the State, Tumberg pled guilty to four counts of
aggravated indecent liberties with a child. In exchange for Tumberg's pleas, the State
agreed to recommend a departure from the Hard 25 life sentences to the aggravated
3

sentences for the crimes as provided by the Kansas Sentencing Guidelines Act (KSGA).
The written basis for the departure was Tumberg's acceptance of responsibility and lack
of significant criminal history. Under the agreement, Tumberg was allowed to argue for
less prison time than recommended by the State. The plea agreement provided, however,
that "[b]oth parties will recommend the counts run consecutively to each other."

Tumberg's presentence investigation (PSI) report listed his criminal history score
as I. The PSI stated that, if granted a departure to the sentencing grid, Tumberg's crimes
would be classified as severity level 3 offenses. Accordingly, if the district court departed
to the sentencing grid, each count would carry a mitigated sentence of 55 months in
prison and an aggravated sentence of 61 months.

Before sentencing, Tumberg moved for a departure from the presumptive Hard 25
life sentences. Tumberg raised several mitigating factors to support his departure motion,
including:

 He displayed veracity, took responsibility for his actions, and admitted
guilt.
 The State joined his request to depart to the sentencing grid.
 He had no prior felony or misdemeanor convictions.
 He had no history of inappropriate sexual behavior.
 A.R. acted in a sexualized manner towards him and he did not seek out the
situational episodes that lead to his actions.
 A psychological evaluation revealed that he would not be a significant risk
to the community when released.
 He was sexually abused as a child.

4

At sentencing, the State asked the district court to follow the plea agreement and
depart to the sentencing grid but deny Tumberg's request for lesser sentences. The State
argued that if the district court followed its recommendation, "[i]t's going to be a benefit
to him that we have the double rule because the Court can only max him out at 122
months." In conclusion, the State asked the district court to "follow the plea agreement as
it is outlined and sentence the defendant to the 122 months in prison."

While arguing in support of a departure sentence, Tumberg's attorney confirmed
that he was asking for "the low number of 55-months, counts concurrent." In response to
Tumberg's argument for concurrent sentences, the State asserted that under the plea
agreement "both parties are asking the Court to run the counts consecutive up to the
double rule, so whatever you choose as the base sentence, you can only double that." The
State continued that Tumberg could not ask for concurrent sentences and was "stuck with
consecutive counts." Tumberg's attorney acknowledged the plea agreement, but stated
"we can ask for a further departure in the case. We're asking for a durational departure in
addition to what the State's agreed for equivalent of concurrent counts."

Before announcing the sentence, the district court noted that Tumberg's departure
motion was based "essentially on an acceptance of responsibility." The district court
commented that Tumberg was requesting "essentially two departures"; first, a departure
from the Hard 25 life sentences to the sentencing grid "and then a further departure."

The district court continued its remarks, noting that the State joined Tumberg in
requesting a departure to the sentencing grid and seeking a 122-month total sentence.
After considering the arguments of counsel, the district court declined to follow the plea
agreement or the sentencing recommendations made by either Tumberg or the State.
Instead, the district court found there were no substantial and compelling reasons to
depart, imposed the Hard 25 life sentences for each count, and ran the sentences
concurrently. The district judge reasoned:
5

"I do not believe that this was a momentary lapse of judgment. I believe that your
behavior was more than that. I believe that this was repeated behavior on your part.
"It would be different if there was one charge but there [are] four off grid person
felonies. The victim in this case is especially vulnerable. You mentioned that repeatedly
in the evaluation with Dr. Nystrom. You were presented with an opportunity at that point,
sir, to help this child. You knew she had been a victim in the past and you had an
opportunity to help her. Instead you chose not to. Instead you chose the worst thing you
could do, which was to victimize this child yet again, not just once but a number of times.
That was a terrible decision.
"So this Court in sentencing states the following: I find the primary offense is
Count 1 calling for a prison term of life, referred to sometimes as the Hard 25 and a
postrelease supervision duration of life.
"With regard to the motion to depart, the Court did carefully consider the motion.
This Court would have to find substantial and compelling reasons to depart from the
sentence. There were a number of reasons to do that, but I cannot find them substantial
and compelling."

Tumberg filed this timely appeal.

VIOLATION OF PLEA AGREEMENT CLAIM

Tumberg first contends that the State violated the plea agreement when the
prosecutor told the district court that the "double rule" would apply to his sentences. Of
note, Tumberg did not argue the State misstated the law or otherwise violated the plea
agreement at sentencing. That said, appellate courts may address claims that the State
violated a plea agreement for the first time on appeal to prevent the denial of fundamental
rights. State v. Meyer, 51 Kan. App. 2d 1066, 1071, 360 P.3d 467 (2015). Whether the
State breached a plea agreement presents a question of law over which this court
exercises unlimited review. State v. Urista, 296 Kan. 576, 582-83, 293 P.3d 738 (2013).

A plea agreement is a contract between the State and the defendant, and both
parties must perform the promises they exchanged. Santobello v. New York, 404 U.S.
6

257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); State v. Woodward, 288 Kan. 297, 300,
202 P.3d 15 (2009). The parties to a plea agreement "must act fairly and in good faith in
carrying out the promises they have made." Urista, 296 Kan. at 583. "If the State fails to
fulfill a promise it made in a plea agreement, the defendant is denied due process." 296
Kan. at 583. A due process violation occurs with any breach, even if the sentencing judge
was not influenced by the State's statements at sentencing. 296 Kan. at 583.

"When the State promises, as part of a plea agreement, to recommend a particular
sentence, due process demands action in conformity to the agreement." State v. Chesbro,
35 Kan. App. 2d 662, 675, 134 P.3d 1 (2006).

"There are at least two ways for the State to breach a promise to make a
recommendation: (1) It can fail to make a sentencing recommendation to the district
court that it promised it would make; or (2) it can make the recommendation but still
breach the agreement by making additional comments at sentencing that effectively
undermine its recommendation." State v. Jones, 302 Kan. 111, 116-17, 351 P.3d 1228
(2015).

Tumberg's claim of error is focused on the so-called double rule set out in K.S.A.
2017 Supp. 21-6819(b)(4):

"The total prison sentence imposed in a case involving multiple convictions
arising from multiple counts within an information, complaint or indictment cannot
exceed twice the base sentence. This limit shall apply only to the total sentence, and it
shall not be necessary to reduce the duration of any of the nonbase sentences imposed to
be served consecutively to the base sentence."

"The double rule provides that a defendant sentenced for multiple convictions can
generally only be required to serve a maximum sentence double the length of the
sentence for [the] primary crime, which is the grid crime with the highest severity
7

ranking." State v. Grotton, 50 Kan. App. 2d 1028, 1031, 337 P.3d 56 (2014). Under
K.S.A. 2017 Supp. 21-6819(b)(2), however, an off-grid crime may not be used as the
primary crime in determining the base sentence for the purposes of the double rule.

Under the plea agreement, the State was to recommend that the district court
depart to the sentencing grid, sentence Tumberg to the aggravated number on the grid,
and run the sentences consecutively. The plea agreement did not mention the double rule
or address whether the rule applied to Tumberg's sentencing. The State recommended
that Tumberg be sentenced to the aggravated number in the sentencing grid—61
months—and asked for the counts to run consecutively. But the State commented that if
its recommendation was followed, the maximum sentence would be 122 months under
the double rule.

Tumberg argues that the State violated the plea agreement because the double rule
was not a part of and would not apply to the State's recommendation and, therefore, the
State was required to recommend a 244-month total prison sentence to satisfy its
obligations under the plea agreement.

Tumberg is correct that the State's suggestion that the double rule applied to his
case was incorrect. Quite simply, the double rule does not apply to off-grid crimes.
Grotton, 50 Kan. App. 2d at 1032. Moreover, a defendant convicted of a Jessica's Law
crime remains convicted of an off-grid offense even when that defendant receives a
departure from the Hard 25 life sentence. State v. Spencer, 291 Kan. 796, 826, 248 P.3d
256 (2011). As a result, Tumberg's sentence would not have been controlled by the
double rule if the district court had granted a departure to the sentencing grid.

That said, while the State misstated the law at sentencing, Tumberg fails to show
how these misstatements violated the plea agreement. The State faithfully followed the
plea agreement by recommending a departure to the sentencing grid and consecutive 61-
8

month sentences on each count. Although the State's recommendations would have
resulted in a 244-month total sentence absent any reduction, under the plea agreement the
State was not precluded from mistakenly commenting on its understanding of the effect
of its compliance with the terms of the plea agreement.

Under the plea agreement, the State was not obligated nor restricted in making any
recommendation about Tumberg's total sentence. The double rule applies only to the
defendant's total sentence and provides that it is unnecessary to reduce the duration of
any consecutively running nonbase sentences. As a result, the State followed the plea
agreement by recommending consecutive 61-month sentences for each count and this
recommendation was not undermined by suggesting the double rule applied to reduce
Tumberg's total sentence. Although the State was mistaken to assert the double rule
applied under the circumstances, the State did not violate the plea agreement.

Next, for the sake of completeness, we consider the issue of harmless error. In this
regard, assuming arguendo the State violated the plea agreement by recommending a
lesser sentence than contemplated, we find such a violation was harmless. A breach of the
plea agreement constitutes harmless error only if "a court can say beyond a reasonable
doubt that the State's promise had little, if any, influence on the defendant's decision to
enter into the plea agreement." Urista, 296 Kan. at 594-95. This harmless error analysis
applies even when the defendant raises the issue for the first time on appeal. Meyer, 51
Kan. App. 2d at 1071.

We conclude beyond a reasonable doubt that any breached promise had no
influence on Tumberg's decision to enter into the plea agreement. The crux of Tumberg's
argument is that the State should have recommended a total sentence of 244 months
under the plea agreement, but that the prosecutor violated the agreement by
recommending the 122-month sentence. We find it implausible that Tumberg would have
9

been any less likely to accept the plea agreement without the understanding that the State
was to refrain from recommending a reduction in his total sentences.

Indeed, Tumberg moved for a further sentence reduction, arguing that his
circumstances justified an even shorter controlling sentence of 55 months. Such a motion
confirms the obvious—Tumberg wished to serve the shortest prison sentence possible.
Any understanding that the State was to refrain from arguing for the application of the
double rule or otherwise seek to reduce Tumberg's total sentence clearly had no influence
on Tumberg's decision to enter into the plea agreement. As a result, even if the State
violated the plea agreement, any violation was harmless.

COMPLIANCE WITH THE JOLLY PROCEDURES

Tumberg next contends the district court violated the procedures of K.S.A. 2017
Supp. 21-6627(d) and Jolly when it considered his departure motion.

When reviewing a district court's ruling on a departure motion, we apply an abuse
of discretion standard. Jolly, 301 Kan. at 324. A judicial action constitutes an abuse of
discretion if (1) no reasonable person would take the view adopted by the district court;
(2) the action is based on an error of law; or (3) the action 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. State v. Collins, 303
Kan. 472, 477, 362 P.3d 1098 (2015).

The failure to follow the statutory methodology for considering a departure from a
Jessica's Law case is an error of law and an abuse of discretion by the district court. State
v. Powell, 53 Kan. App. 2d 758, 762, 393 P.3d 174 (2017), rev. granted 306 Kan. 1328
(2017). The party asserting the district court abused its discretion bears the burden of
10

showing the abuse of discretion. State v. Robinson, 303 Kan. 11, 90, 363 P.3d 875
(2015), cert. denied 137 S. Ct. 164 (2016), disapproved on other grounds by State v.
Cheever, 306 Kan. 760, 402 P.3d 1126 (2017).

Under K.S.A. 2017 Supp. 21- 6627(a)(1)(C), when a defendant over the age of 18
is convicted of aggravated indecent liberties with a child who is under 14, the defendant
is to receive a Hard 25 life sentence. The district court must impose this presumptive
sentence "unless the judge finds substantial and compelling reasons, following a review
of mitigating circumstances, to impose a departure." K.S.A. 2017 Supp. 21-6627(d)(1).

In Jolly, our Supreme Court held that courts may not weigh mitigating
circumstances against aggravating circumstances when considering sentencing departures
in Jessica's Law cases. 301 Kan. at 322. The Jolly court determined that

"the proper statutory method when considering a departure from a Jessica's Law sentence
is for the district court first to review the mitigating circumstances without any attempt to
weigh them against any aggravating circumstances. Then, in considering the facts of the
case, the court determines whether the mitigating circumstances rise to the level of
substantial and compelling reasons to depart from the otherwise mandatory sentence.
Finally, if substantial and compelling reasons are found for a departure to a sentence
within the appropriate sentencing guidelines, the district court must state on the record
those substantial and compelling reasons." 301 Kan. at 324.

Although sentencing courts may not weigh aggravating factors against mitigating
factors, "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. The sentencing court "is to 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
11

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]).

Tumberg argues the district court failed to satisfy the first step of Jolly because it
did not first review the mitigating circumstances without weighing them against the
aggravating circumstances. Tumberg specifically claims that the district court violated
the Jolly methodology "[b]ecause there was not a time during sentencing that the court
first considered all mitigating circumstances put forward by both the State and Mr.
Tumberg."

As the State points out, Tumberg's reasoning suggests that Jolly requires a
sentencing court to explicitly specify and discuss each mitigating factor put forward
before determining whether there are substantial and compelling reasons to depart. This
is a misunderstanding of the Jolly decision.

Specificity by the district court is not required when it denies a departure from a
sentence imposed under Jessica's Law. State v. Harsh, 293 Kan. 585, 587, 265 P.3d 1161
(2011). Moreover, the district court need not expressly specify the mitigating factors the
defendant presented when explaining its denial of the defendant's motion to depart. State
v. Mendoza, 292 Kan. 933, 936, 258 P.3d 383 (2011). Nothing in Jolly suggests a
modification of this precedent. See State v. Ashbaugh, No. 116,426, 2017 WL 5180845,
at *3 (Kan. App. 2017) (unpublished opinion), petition for rev. filed December 11, 2017.
As a result, contrary to Tumberg's reasoning, the district court was not required to
specifically address each mitigating factor argued by Tumberg.

Although a district court does not need to enumerate all the mitigating factors
considered, the record must demonstrate that the district court reviewed any mitigating
circumstances without weighing them against aggravating circumstances. State v. Anno,
No. 116,350, 2017 WL 3947380, at *5 (Kan. App. 2017) (unpublished opinion), petition
12

for rev. filed October 5, 2017. Compliance with this procedure is shown when the district
court indicates it considered the mitigating circumstances and does not suggest that it
improperly weighed any aggravating circumstances. Ashbaugh, 2017 WL 5180845, at *4.

For example, in Ashbaugh, our court held that a district judge did not violate the
Jolly procedure when, after listening to the arguments for mitigation, it denied a
departure, explaining:

"'I find no substantial or compelling reason to depart from the sentence of life in prison.
I'm not going to reiterate what I just heard, but I think they showed sufficiently the
damage you have caused. . . . [n]ot only to the two young boys but to the extended
family.'" Ashbaugh, 2017 WL 5180845, at *2.

The Ashbaugh court found that the first step of Jolly was satisfied because "[t]he
sentencing judge indicated he had indeed listened to the proposed mitigating
circumstances, although he declined to 'reiterate' what he had heard. His straightforward
ruling gave no indication he had improperly considered or 'weighed' any 'aggravating
circumstances.'" Ashbaugh, 2017 WL 5180845, at *4.

Similarly, the record in this case shows the district court satisfied the first step of
the Jolly test by reviewing the mitigating circumstances without weighing them against
aggravating circumstances. The district court indicated that it considered the proposed
mitigating circumstances advanced by Tumberg in his departure motion. In explaining its
decision, the district court noted that it carefully considered Tumberg's motion and
disagreed with Tumberg's claim that he accepted responsibility for his actions. The
district court acknowledged that Tumberg set forth "a number of reasons" to depart, but
determined that it could not find them substantial and compelling.

13

The district court's ruling does not suggest it improperly weighed any aggravating
factors against the mitigating factors. At no point did the district court explicitly
characterize any evidence as an aggravating factor. When the district court referenced
Tumberg's repeated criminal behavior, his knowledge of the victim's vulnerability, and
his terrible decision making, it engaged in the second step of Jolly—whether the
mitigating factors were substantial and compelling given the facts of the case. While
these facts could be classified as aggravating factors, "the district court can consider
things that could be classified as 'aggravating factors' in other cases as long as the district
court does not call them 'aggravating factors.'" State v. James, No. 115,324, 2016 WL
7429525, at *4 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. 1325
(2017).

The district court did not violate the procedures mandated by Jolly when it denied
Tumberg's motion for a sentencing departure.

COMPLIANCE WITH OTHER SENTENCING PROCEDURES

Tumberg next contends the district court abused its discretion by
misunderstanding the sentencing procedure required to grant the departure sentence he
requested. Specifically, Tumberg argues the district court mistakenly believed that two
departures were needed to impose a controlling sentence of 55 months.

An appellate court applies an abuse of discretion standard when reviewing a
district court's decision on a departure motion. State v. Floyd, 296 Kan. 685, 687, 294
P.3d 318 (2013). Judicial action constitutes abuse of discretion if the action is based on
an error of law. Marshall, 303 Kan. at 445.

Our Supreme Court has laid out a specific sentencing departure process for
Jessica's Law cases. When a district court departs from the life sentence under K.S.A.
14

2017 Supp. 21-6627(d), it must first depart to the KSGA grid block appropriate to both
the defendant's criminal history and "the severity level assigned to the crime when it
lacks the element of disparity between the defendant's and the victim's ages." Spencer,
291 Kan. at 827.

Once the court departs from the life sentence to the appropriate grid block, the
court may then further depart from the sentencing grid under the applicable provisions of
the KSGA. State v. Jackson, 297 Kan. 110, 113, 298 P.3d 344 (2013). "[T]he
requirements of neither the first step into the guidelines nor the second step away from
the presumptive guidelines sentence can be ignored, and all departure procedures must be
followed." State v. Jolly, 291 Kan. 842, 847, 249 P.3d 421 (2011).

In this case, if Tumberg had been granted a departure to the sentencing grid, the
appropriate grid block carried a mitigated sentence of 55 months. Thus, the district court
could have ordered a 55-month total sentence by departing from the Hard 25 life
sentences to the sentencing grid and imposing concurrent mitigated sentences. As
Tumberg argues, the district court was not required to make a second departure from the
sentencing grid to impose his requested 55-month sentence. Even so, Tumberg fails to
show that the district court believed two departures were necessary to obtain the reduced
sentence he requested.

At sentencing, Tumberg's counsel confirmed that he was asking "for the low
number of 55 months, counts concurrent." After the State told the district court that
Tumberg could not ask for concurrent counts under the plea agreement, Tumberg's
counsel replied, "What I was trying to say, Your Honor, is we can ask for a further
departure in the case. We're asking for a durational departure in addition to what the
State's agreed for equivalent of concurrent counts."

15

In its comments leading up to the sentence, the district court noted that Tumberg's
counsel wrote an excellent departure motion, which was based primarily on acceptance of
responsibility. The district judge then stated Tumberg's counsel "asks the Court to find
substantial and compelling reasons to depart from the sentence. Well, I guess that's
essentially two departures. First of all, departure from the life sentence and back on the
grid. I'm sure he's explained that to you and then a further departure."

To establish an abuse of discretion, Tumberg must show that the district court's
action was based on an error of law. We are persuaded that the district court was merely
summarizing Tumberg's argument for a sentencing departure, not its own understanding
of the departure procedures it would have had to use to order Tumberg's requested
controlling sentence.

Because Tumberg had agreed to recommend consecutive sentences, he was
precluded from asking for concurrent 55-month sentences. As a result, to obtain the
controlling sentence he desired, Tumberg had to ask for a further departure from the grid.
The district court was summarizing this argument when it noted that Tumberg's counsel
asked for "essentially two departures." Tumberg fails to show that the district court
abused its discretion by misunderstanding the procedures required to sentence him to his
requested controlling sentence.

Moreover, even if the district court erroneously believed that a second departure
was required, this error was harmless. When an error implicates a statutory but not
federal constitutional right, the party benefiting from the error must persuade the court
that there is no reasonable probability that the error affected the outcome in light of the
entire record for it to be considered harmless. State v. McCullough, 293 Kan. 970, 983,
270 P.3d 1142 (2012).

16

Here, assuming arguendo the district court erred, this error would have caused the
district court to believe that two steps were needed to impose the controlling sentence
sought by Tumberg. However, the district court determined that no substantial and
compelling reasons warranted a departure from a life sentence to the sentencing grid.
Quite simply, the district court did not get past the first step, which it was correct to
apply. As a result, there was no occasion for the district court to apply the second step. In
other words, it is irrelevant regarding whether the district court believed that it had to
make a second departure because it never made the first departure. Accordingly, there is
no reasonable probability the claimed error affected the outcome of the sentencing.

SUBSTANTIAL AND COMPELLING REASONS FOR A DEPARTURE

Tumberg's final argument is that the district court abused its discretion by finding
there were not substantial and compelling reasons to depart from the Hard 25 life
sentences.

When reviewing a district court's determination of whether mitigating
circumstances present substantial and compelling reasons to depart from a Jessica's Law
sentence, we use an abuse of discretion standard. Jolly, 301 Kan. at 325. Judicial action
constitutes an abuse of discretion if no reasonable person would take the view adopted by
the district court. Marshall, 303 Kan. at 445.

As previously explained, in Jessica's Law cases, the district court must impose a
Hard 25 life sentence "unless the judge finds substantial and compelling reasons,
following a review of mitigating circumstances, to impose a departure." K.S.A. 2017
Supp. 21-6627(d)(1). As used in the statute, the term "substantial" means something real
and not imagined; something with substance and not ephemeral. "Compelling" means
that the court is forced, by the facts of the case, to leave the status quo or go beyond what
is ordinary. Jolly, 301 Kan. at 323.
17

K.S.A. 2017 Supp. 21-6627(d) contains a nonexclusive list of six mitigating
factors for a court to consider when deciding whether to depart from a life sentence. The
existence of mitigating factors does not necessarily equate to substantial and compelling
reasons to depart. Jolly, 301 Kan. at 323. "Nor is each mitigating factor required to
sufficiently justify a departure by itself, so long as the collective factors constitute a
substantial and compelling basis for departure." Harsh, 293 Kan. at 587. There is no
formula for the analysis of the mitigating factors raised, and sentencing courts do not
simply tally the total number of mitigating factors. 293 Kan. at 587.

The district court was well within its discretion when it denied Tumberg's
departure motion. In support of this conclusion, our Supreme Court has upheld the denial
of departure motions based on similar mitigating factors raised by Tumberg. See e.g.,
State v. Plotner, 290 Kan. 774, 780-81, 235 P.3d 417 (2010) (upholding denial of
departure motion despite the defendant's claims that he took responsibility for his actions,
the sexual acts were not committed forcefully, lack of significant prior criminal record,
and he was only 30 years old at the time of the offense); State v. Reyna, 290 Kan. 666,
689-90, 234 P.3d 761 (2010), overruled on other grounds by State v. Dunn, 304 Kan.
773, 375 P.3d 332 (2016) (upholding denial of departure motion even though an
evaluation found no evidence of pedophilia, the evaluator did not consider the defendant
to be a threat to the community, and lack of criminal history); State v. Spotts, 288 Kan.
650, 655-56, 206 P.3d 510 (2009) (upholding district court's denial of a departure motion
although defendant had no prior sexually motivated crimes, he took responsibility for his
action, plea saved victim from testifying at trial, and sexual actions were not committed
by force or threat).

We find that reasonable persons could conclude that the offered mitigating
circumstances did not amount to substantial and compelling reasons to depart given the
facts of the case. The victim in this case was nine years old. Tumberg victimized A.R. on
18

four separate occasions, once in a bathtub and three times on a couch. As the district
court found, Tumberg's actions did not suggest a momentary lapse of judgment.

A reasonable person could conclude, as did the district court, that no substantial
and compelling reasons existed to justify a departure sentence. Accordingly, we find the
district court acted within its discretion, and we affirm the sentences imposed in this case.

Affirmed.