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NOT DESIGNATED FOR PUBLICATION

No. 120,614

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

JAMES AARON ABBOTT,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; DEBORAH HERNANDEZ MITCHELL, judge. Opinion filed 

March 20, 2020. Sentence vacated and case remanded with directions.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant. 

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before WARNER, P.J., POWELL, J., and LAHEY, S.J.

PER CURIAM: James Abbott appeals the district court's denial of his motion for a 

departure sentence and its imposition of concurrent Hard 25 sentences under Jessica's 

Law. Abbott argues the district court improperly considered facts not in evidence and 

impermissibly weighed aggravating factors against mitigating factors when it denied his 

motion. Because the district court's rationale leaves substantial doubt as to whether it 

followed Kansas Supreme Court precedent when considering Abbott's request for a 

departure, we must vacate Abbott's sentence and remand for reconsideration of his 

departure motion under the proper legal standard.
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FACTUAL AND PROCEDURAL BACKGROUND

The State charged Abbott with two counts of aggravated indecent liberties, 

aggravated criminal sodomy, aggravated indecent liberties with a child, and two counts of 

criminal sodomy for conduct that occurred between 2009 and 2014. Abbott pleaded

guilty to one count of aggravated indecent liberties and one count of aggravated criminal 

sodomy. The aggravated indecent liberties charge was based on an incident occurring 

between March 2, 2009 and March 1, 2010, when Abbott sexually abused a young girl.

The aggravated criminal sodomy charge was based on an incident occurring between 

January 12, 2012, and January 11, 2014, when Abbott forced a boy to perform sex acts on 

him. The State dismissed the remaining charges and agreed to recommend that the two 

off-grid counts run concurrently at sentencing. 

Before his sentencing hearing, Abbott filed a motion for departure from the 

mandatory minimum sentences of life without the possibility of parole for 25 years, 

requesting a prison sentence under the Kansas Sentencing Guidelines of 247 months. Due 

to the range of dates associated with Abbott's offenses, the statutory authority for his 

departure motion included K.S.A. 21-4643(d)(1), K.S.A. 2011 Supp. 21-6627(d)(1),

K.S.A. 2012 Supp. 21-6627(d)(1), and K.S.A. 2013 Supp. 21-6627(d)(1). The relevant 

provisions of these statutes are virtually identical, directing that "the sentencing judge 

shall impose the mandatory minimum term of imprisonment . . . unless the judge finds 

substantial and compelling reasons, following a review of mitigating circumstances, to 

impose a departure." K.S.A. 2013 Supp. 21-6627(d)(1). In support of his request, Abbott 

cited his limited criminal history and his acceptance of responsibility for his crimes as 

substantial and compelling factors that he believed justified a departure.

Abbott did not address the court at sentencing, but his attorney again asked the 

court for a departure sentence in light of Abbott's limited criminal history, his acceptance 
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of responsibility, and his decision to plead guilty, thus sparing the victims, the State, and 

the court from the burden of a trial. The mothers of the victims (one of whom was 

Abbott's sister) also addressed the court at the sentencing hearing. The mothers generally 

expressed their disgust with Abbott's actions, described the unspeakable, life-long trauma 

he inflicted upon their children, and asked the court to sentence him to the maximum 

possible sentence. The State argued against Abbott's departure motion and requested the 

presumptive sentences—running the two counts concurrently and thus allowing for the 

possibility of parole after 25 years in prison. 

The district court stated it had considered all the required factors and, finding no 

substantial and compelling reasons for a departure, denied Abbott's motion. The State 

then asked the court to clarify its ruling. The district court granted this request and 

explained its ruling, addressing Abbott: 

"I have reviewed your motion for . . . durational departure, and I do not consider—I am to 

look to substantial and compelling reasons to determine whether or not you have 

provided the Court with those reasons in order to depart from what the sentencing 

guidelines say I am to give you. And although you'd have a minimal criminal history, I 

mean almost none, the impact that your actions had on the lives of your victims is too 

substantial for me to look at the fact that—that you didn't have any criminal history. This 

was your family, it's your nieces and nephews, they were children, and you took 

advantage of them and you will impact them, what you did will impact them the rest of 

their life, and as a result you have forfeited your opportunity to live in a free society. So, I 

do not feel that the reasons that your attorney has articulated today meet the level of 

substantial and compelling that gives a basis for a departure. Therefore, your departure is 

denied." 

Abbott now appeals, claiming the district court failed to comply with Kansas 

Supreme Court precedent when it denied his departure request.
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DISCUSSION

Appellate courts review a district court's determination on whether to grant a 

departure sentence in a Jessica's Law case for an abuse of discretion. State v. Jolly, 301 

Kan. 313, 324-25, 342 P.3d 935 (2015). "'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. 

Generally, this court will not disturb the district court's denial of a departure 

sentence when it follows the correct legal analysis. But a court abuses its discretion when 

it deviates from the required legal framework or fails to properly consider statutory 

limitations. State v. Powell, 308 Kan. 895, 903, 425 P.3d 309 (2018). The party alleging 

an abuse of discretion bears the burden of proving it. 308 Kan. at 910-11. Appellate 

courts do not reweigh the evidence, assess the credibility of the witnesses, or resolve 

evidentiary conflicts. State v. Reed, 300 Kan. 494, 499, 332 P.3d 172 (2014). 

Jessica's Law provides a presumptive Hard 25 sentence—lifetime imprisonment 

without the possibility of parole for 25 years—for a defendant who is 18 or older and 

convicted of certain sex offenses. K.S.A. 2019 Supp. 21-6627(a)(1). When the conviction 

is the defendant's first conviction for an offense listed in section (a)(1), K.S.A. 2019

Supp. 21-6627(d)(1) grants the district court the discretion to instead sentence the 

defendant under the Kansas Sentencing Guidelines Act if the court "finds substantial and 

compelling reasons, following a review of mitigating circumstances, to impose a 

departure." (Emphasis added.) K.S.A. 2019 Supp. 21-6627(d)(1). 

The Kansas Supreme Court has emphasized the unique nature of K.S.A. 21-6627, 

which unlike other sentencing statutes, makes no provision for considering aggravating 

factors. State v. McCormick, 305 Kan. 43, 49, 378 P.3d 543 (2016). This is because 
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Jessica's Law only operates to intensify a sentence—"Simply put, there is nowhere to go 

but to a less-intense place." State v. Spencer, 291 Kan. 796, 809, 248 P.3d 256 (2011). In 

Jolly, the court spelled out the proper steps a district court must follow when considering 

a departure motion in a Jessica's Law case:

"While [Jessica's Law] does not allow a weighing of 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. Simply stated, a judge does not sentence in a vacuum. The 

sentencing judge 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 includes those 'circumstances 

inherent in the crime and the prescribed sentence.' . . . 

. . . . 

". . . [T]he 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." (Emphasis added.) 301 Kan. at 323-24.

The Kansas Supreme Court has repeatedly reemphasized that the weighing of 

aggravating factors against mitigating factors is verboten. State v. Atkisson, 308 Kan. 

919, 927-28, 425 P.3d 334 (2018); Powell, 308 Kan. at 905; McCormick, 305 Kan. at 49-

50. But the second step—consideration of "facts of the case" to determine if the proposed 

mitigators are substantial and compelling—has seemingly created grounds for confusion 

among district courts.
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Subsequent cases have included additional caveats and instructions for district 

courts to heed when ruling on Jessica's Law departure motions. In McCormick, the 

Kansas Supreme Court explained "[t]he manner in which a crime is committed and the 

circumstances inherent in the crime are not inevitably limited to the strict legal elements 

of the offense." 305 Kan. at 50. This allowance in the performance of the second step was 

further explained in Powell, where the Supreme Court held that "Jolly does not limit the 

type of evidence a district court may consider in determining whether departure is 

warranted, but only limits the manner in which the district court makes its decision."

(Emphasis added.) Powell, 308 Kan. at 914. 

Powell also clarified that a district court is not affirmatively required to explain its 

rationale when denying a departure request at sentencing. That is, a court's failure to 

analyze on the record a departure request under the Jolly framework is not in and of itself

reversible error. Powell, 308 Kan. at 908. Our Supreme Court proceeded to warn that 

while "it is laudable for district courts to explain the reasons for their rulings, those 

explanations are voluntary and [inject] opportunity for challenge based on our language 

from Jolly and McCormick." Powell, 308 Kan. at 909. 

Finally, in Atkisson the Supreme Court noted that a district court abuses its 

discretion when deciding a departure motion under K.S.A. 2017 Supp. 21-6627(d)(1) if it 

relies on facts that are outside the evidentiary record or are unsupported by the evidence. 

Atkisson, 308 Kan. at 930-31.

Abbott argues the district court abused its discretion in two ways when it denied 

his departure motion. He claims the district court made an error of law by weighing 

aggravating factors against his asserted mitigating factors, in direct conflict with the 

Kansas Supreme Court's decision in Jolly. He also asserts the district court's departure 

analysis was based on evidence outside the evidentiary record. 
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1. The district court's explanation of its departure analysis does not comply with 

the framework set forth by the Kansas Supreme Court in Jolly and its progeny.

As noted above, the Kansas Supreme Court has held that the Jolly framework does 

not necessarily limit the type of evidence a district court may consider, but it mandates an 

analytical process by which a court evaluates a requested departure. Powell, 308 Kan. at 

914. Abbott argues the explanation provided by the district court—at the State's 

request—shows the court did not employ the appropriate analysis.

Kansas law requires a district court considering a departure motion in a Jessica's 

Law case to impose the mandatory minimum sentence of life imprisonment without the 

possibility of parole for 25 years unless it "finds substantial and compelling reasons, 

following a review of mitigating circumstances, to impose a departure." K.S.A. 2019

Supp. 21-6627(d)(1). The Kansas Supreme Court has interpreted this statute to require 

the sentencing court to first examine the proposed mitigating factors without weighing 

them against any aggravating factors. The court then proceeds to consider "the facts of 

the case" to determine whether those mitigating factors are substantial and compelling. 

Jolly, 301 Kan. at 323-24.

Applying this framework to the facts here, Jolly directed the district court to first 

examine the mitigating factors argued by Abbott in his departure motion—his lack of 

criminal history and acceptance of responsibility—without balancing them against any 

other considerations. Then, to determine whether those proposed mitigators were 

substantial and compelling, the district court was required 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." 301 

Kan. at 324.

The district court may have performed this analysis below. But when called on by 

the State to explain the rationale for its denial, the district court stated the impact of 
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Abbott's crimes on his victims prevented it from even considering his asserted mitigating 

factors: 

"And although you'd have a minimal criminal history, I mean almost none, the impact 

that your actions had on the lives of your victims is too substantial for me to look at the 

fact that—that you didn’t have any criminal history. This was your family, it's your 

nieces and nephews, they were children, and you took advantage of them . . . what you 

did will impact them the rest of their life, and as a result you have forfeited your 

opportunity to live in a free society." (Emphasis added.)

This reasoning is at odds with Kansas Supreme Court caselaw directing the proper 

method for evaluating a departure motion in a Jessica's Law case. Here, the district court 

proclaimed that the negative facts of the case were too substantial to allow any 

consideration of the mitigators Abbott alleged. Under Jolly, this was an error of law.

In Powell, the Kansas Supreme Court outlined three categories of reversible error 

in Jessica's Law departure cases: (1) where the sentencing court expressly refers to 

aggravating factors when ruling; (2) where the court describes its ruling as a product of 

weighing without referring to aggravating facts; and (3) where the record does not 

affirmatively show that the district court followed the Jolly framework. Powell, 308 Kan. 

at 906-07. The case at hand falls into the third category because the district court's 

explanation does not instill confidence that it appropriately followed the Jolly analysis. 

Accord McCormick, 305 Kan. at 50-51 (where the Kansas Supreme Court reversed 

because it was not "wholly confident that the statutory command not to conduct weighing 

. . . was followed"). Thus, Kansas Supreme Court precedent impels this court to vacate 

the district court's ruling on Abbott's departure motion and remand for resentencing. 

We recognize that some may regard today's holding as one valuing form over 

substance. See McCormick, 305 Kan. at 53 (Stegall, J., dissenting) (criticizing Jolly and 

its progeny for requiring reversal when courts employ the correct statutory analysis but 
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"simply use[] the 'wrong' words"). And we acknowledge the oddity that the district court 

here may have avoided this procedural pitfall had it heeded the Kansas Supreme Court's 

warning in Powell. 308 Kan. at 909 ("[I]t is laudable for district courts to explain the 

reasons for their rulings, [but] those explanations are voluntary and [inject] opportunity 

for challenge based on our language from Jolly and McCormick."). But lower courts are 

bound by Kansas Supreme Court precedent. State v. Meyer, 51 Kan. App. 2d 1066, 1072, 

360 P.3d 467 (2015). Thus, district courts considering departure motions in cases 

involving Jessica's Law must follow the statutory framework, as articulated by Jolly—

first considering the proposed mitigating factors, and then determining whether those 

factors are substantial and compelling in light of the facts of the case.

Finally, in reaching our decision today, we emphasize that the soundness of the 

district court's ultimate conclusion—that a departure sentence is unwarranted—is not 

before us. After reviewing the proposed mitigating factors in the manner Jolly prescribes, 

the court may indeed reach the same conclusion it has here. But because the district 

court's rationale leaves substantial doubt as to whether the court followed the Jolly

mandate when considering Abbott's request for a departure, Kansas Supreme Court 

precedent demands that we vacate Abbott's sentence and remand for reconsideration of 

his departure motion under the proper legal standard.

2. Because we remand for resentencing, we do not decide whether the district court 

abused its discretion by considering the statements of the victims' mothers when 

it considered Abbott's motion for a departure sentence.

Because Abbott pleaded guilty before this case went to trial, the only facts in 

evidence were those Abbott admitted on the record during his plea hearing. Abbott

asserts the district court, in denying his departure request, improperly relied on two 

factual circumstances never discussed at that hearing—the impact of his crimes on his 

victims and the fact that the victims were his family members. The State argues these 

circumstances were inherent to the crimes and fair for the district court to consider. 
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In Atkisson, the defendant pleaded no contest to a Jessica's Law offense. The 

district court denied the defendant's motion for a departure sentence—a motion 

contemplated by both the defendant and the State as part of the plea—relying on facts 

gleaned from a probable cause affidavit and unsworn statements made by the victim's 

family at sentencing. 308 Kan. at 930. In particular, the court observed that although the 

defendant had been convicted of only one offense, the probable cause affidavit indicated

circumstances "'involving oral sex on more than one occasion and intercourse on more 

than one occasion'" and "'occurred in two different counties.'" 308 Kan. at 923. The court 

also explained it was swayed by "'[t]he way that the defendant [had] contact with this 

girl,'" who was a friend of his own daughter. 308 Kan. at 923. None of these facts was 

part of the factual basis for the defendant's plea or otherwise in evidence. The Kansas 

Supreme Court thus reversed and remanded for resentencing because this information 

was "drawn from sources outside the evidentiary record." 308 Kan. at 931.

We question whether the two facts Abbott highlights here—the impact of his 

crimes on the victims (who were both under 14 years of age) and the victims' relationship

to Abbott—are of the same nature as those the court discussed in Atkisson. After all, the 

traumatic impact sexual abuse has on a child victim is a fact inherent in Jessica's Law. 

This was not a matter that required evidentiary development before being considered by 

the sentencing court. See Jolly, 301 Kan. at 324 (sentencing court considering departure 

motion in a Jessica's Law case must consider, among other factors, "'circumstances 

inherent in the crime'"). And although the relationship between Abbott and his victims 

was not specifically discussed at the plea hearing, courts may take judicial notice of 

familial relationships. See K.S.A. 60-409(b)(4). At the same time, there is no question 

that the better practice is for parties to formally offer into evidence at sentencing any 

matter they believe the district court should consider—whether a victim's sworn affidavit 

or testimony, a probable cause affidavit, or other information relevant to a district court's 

determination. See Atkisson, 308 Kan. at 930-31. 
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We have already determined Abbott's sentence must be vacated and the case 

remanded for reconsideration of his departure motion in light of the Jolly framework. We 

decline to opine further on the specific language the district court used in its explanation 

of its now-vacated ruling. Accord State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 

659, 367 P.3d 282 (2016) ("Kansas courts do not issue advisory opinions."). Instead, we 

merely direct the court and the parties to conduct any further sentencing proceedings in 

accordance with Kansas Supreme Court precedent. 

Sentence vacated and case remanded with directions.