State v. Zozaya

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NOT DESIGNATED FOR PUBLICATION

No. 112,171

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JORGE ZOZAYA,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DOUGLAS R. ROTH, judge. Opinion filed November 6,
2015. Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, of assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., BUSER and GARDNER, JJ.

Per Curiam: Consistent with a plea agreement, the Sedgwick County District
Court imposed consecutive guidelines sentences on Defendant Jorge Zozaya for a series
of sex crimes against three minors. Zozaya thereby avoided life sentences for what
otherwise would have been Jessica's law offenses. Zozaya appeals because the district
court rejected his request for an additional durational departure. We find no abuse of the
district court's discretion and affirm.

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Under the agreement, Zozaya pleaded guilty to two counts of rape, two counts of
aggravated criminal sodomy, one count of aggravated indecent solicitation of a child, two
counts of aggravated indecent liberties with a child, and one count of kidnapping. The
victims were three children between 9 and 11 years old. All of those crimes are serious
felonies, and some carry potential life sentences. Although Zozaya maintained he had not
committed the crimes, the district court accepted the pleas because Zozaya wanted to take
advantage of the favorable plea bargain with the State. The plea agreement called for the
State to recommend aggravated guidelines sentences to be served consecutively,
effectively bypassing life sentences. The agreement allowed Zozaya to request additional
durational departures from the district court at sentencing.

Before the sentencing hearing, Zozaya filed a motion requesting a departure to
half the middle guidelines sentence for each offense. At the hearing, the district court
granted the departure to the sentencing grid and imposed aggravated sentences to be
served consecutively, yielding a controlling term of imprisonment of 330 months. The
district court denied Zozaya's motion for any additional relief. Zozaya appeals that ruling.

A criminal defendant may appeal a decision of a district court imposing a
departure sentence less generous than the requested departure. See State v. Looney, 299
Kan. 903, 907-08, 327 P.3d 425 (2014). Appellate courts review the extent of a district
court's sentencing departure for abuse of discretion. State v. Spencer, 291 Kan. 796, 807,
248 P.3d 256 (2011). A district court may be said to have abused its discretion if the
result it reaches is "arbitrary, fanciful, or unreasonable." Unruh v. Purina Mills, 289 Kan.
1185, 1202, 221 P.3d 1130 (2009). That is, no reasonable judicial officer would have
come to the same conclusion if presented with the same record evidence. An abuse of
discretion may also occur if the district court fails to consider or to properly apply
controlling legal standards. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009).
A district court errs in that way when its decision "'goes outside the framework of or fails
to properly consider statutory limitations or legal standards.'" 288 Kan. at 299 (quoting
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State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 [2007]). Finally, a district court
may abuse its discretion if a factual predicate necessary for the challenged judicial
decision lacks substantial support in the record. Northern Natural Gas Co. v. ONEOK
Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (outlining all three bases for an
abuse of discretion), cert. denied 134 S. Ct. 162 (2013); State v. Ward, 292 Kan. 541, Syl.
¶ 3, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

Here, Zozaya does not contend the district court incorrectly applied the law or
misunderstood the relevant facts. Rather, he says the district court acted in a way no
reasonable judicial officer would have under the circumstances. Zozaya points out: he
fell in the lowest criminal history category on the sentencing grid; he had been gainfully
employed until his arrest; he had been evaluated as having a low risk of reoffending; he
enjoys strong support among his family members; and he has no history of substance
abuse. The district court acknowledged those considerations and weighed them against
the crimes of conviction. The district court noted that sex offenses against children are
among the most harshly punished crimes in Kansas, reflecting a legislative and public
policy determination about the enormous harm those crimes inflict upon victims and their
families. The district court also observed that Zozaya committed the offenses against
multiple victims, on multiple occasions, and in multiple locations—demonstrating a
pattern of sexual abuse directed at especially vulnerable victims. And the district court
found Zozaya's consistent denial of the wrongful acts would inhibit any meaningful
rehabilitation through sex offender treatment programs.

In sum, the district court made a considered evaluation of mitigating and
aggravating circumstances and concluded they warranted a departure from off-grid
punishment to a long period of imprisonment consistent with the sentencing guidelines
and the State's recommendation under the plea agreement. We find no abuse of discretion
in that determination.

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Affirmed.