1 NOT DESIGNATED FOR PUBLICATION

No . 124,993

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appellee
,

v.

M ICHAEL W ILLIAM S CHNEIDER J R .,

Appellant

.
MEMORANDUM OPINION

Appeal from Butler District Court; D AVID A. R ICKE , judge. Opinion filed February 10 , 2023.
Affirmed.

Corrine E. Gunning , of Kansas Appellate Defender Officer, for appellant.

Cheryl M. Pierce , assistant county attorney, and Derek Schmidt , attorney general, for appellee.

B efore C LINE , P. J., I SHERWOOD , J., and P ATRICK D. M C A NANY , S.J.

P ER C URIAM : Michael William Schneider Jr. sought a departure sentence after being convicted o f rape, an off

- grid felony

. His conviction followed his no

- contest plea to the charge of rape, consistent with a plea agreement with the State which resulted in other charges against Schneider being dismissed and t he State reserving its right to oppose any request for a departure sentence.

Schneider asked the court to depart by not t reating his rape conviction as an off

grid felony . Instead, he asked the court t o treat his conviction as being controlled by the

sen tencing grid and to impos e one

- half of the grid sentence. The district court found that Schneider had not presented substantial and compelling circumstances to warrant a2

departure from the standard Jessica ' s Law sentence and sentenced him to life in prison with the possibility of parole after 25 years. Schneider appeals, claiming the district court abused its discretion in denying his requested departure.

Schneider ' s conviction was for a Jessica ' s Law offense under K.S.A. 2020 Supp.
21

- 6627 (a) and (d), w hich expressly authorizes and provides a procedure for imposing a departure sentence from the mandatory Jessica ' s Law minimum 25

- year sentence. If it is
the offender ' s first Jessica ' s Law conviction, the trial court may depart from the mandatory minimum and impose a sentence under the Kansas Sentencing Guidelines Act if, "following a review of mitigating circumstances," the court finds substantial and compelling reasons to do so. K.S.A. 202 0 Supp. 21

- 6627(d)(1) ; State v. Powell , 308 Kan. 895, 902, 425 P.3d 309 (2018)

.

When deciding a motion to depart in a Jessica ' s Law case, the trial court must first review the mitigating circumstances without any attempt to weigh them against any aggravating circumstances. Then the trial court determines, based upon all the facts of the case, whether the mitigating circumstances rise to the level of " ' substantial and compelling reasons ' " to depart from the mandatory minimum sentence. 308 Kan. at 913

- 14

. The district c ourt does not need to affirmatively articulate that it refrained from weighing the circumstances. 308 Kan. at 908

.

We review the sentencing court ' s determination of whether substantial and compelling reasons to depart exist in a Jessica ' s Law case for an y abuse of discretion. State v. Jolly , 301 Kan. 313, 32 5 , 342 P.3d 935 ( 2015 )

. A judicial action constitutes an
abuse of discretion if it is (1) arbitrary, fanciful, or unreasonable or (2) is based on an
error of law or fact. State v. Levy , 313 Kan. 232, 237, 485 P.3d 605 (2021)

.

Schneider argues that his sentence was improper because he presented circumstances which fit mitigating factors listed by our Legislature in K.S.A. 2020 Supp.3

21

- 6627(d)(2) : (1) he had no criminal history ; (2) he accepted re sponsibility by entering a guilty plea and admitting wrongdoing, saving the cost
, time , and victim ' s emotional
turmoil for a trial ; and (3) he had been subject to childhood trauma but was amenable to
treatment with a below

- average risk for recidivism

.

Sch neider contends, based on a psychiatric report, that he is not likely to reoffend if he received therapeutic interventions. But as of the time of the sentencing hearing
, Schneider had neither received nor begun any therapeutic interventions
, and the State ' s claim that he was likely to reoffend was accurate as of the time of sentencing. Schneider
does not demonstrate

— nor even claim

— an error of fact in the district court ' s denial of his departure motion.

Nor does Schneider show that the trial court erred as a matter of law. Schneider
cites Jolly and State v. Bird , 298 Kan. 393, 398

- 99, 312 P.3d 1265 (2013) , in which our Supreme Court recognized mitigating factors

— now relied upon by Schneider

— which justifie d the sentencing court granting a departure. But while these cases demonstrate that these mitigati ng factors can justify a departure sentence, they do not stand for the proposition that failure to grant a departure based on these factors is error.

To the contrary, both this court and our Supreme Court ha ve upheld the denial of a departure sentence under circumstances similar to those in our present case.

In State v. Klavetter , 60 Kan. App. 2d 439, 494 P.3d 235, rev. denied 314 Kan. 857 (202 1), the defendant had no criminal history. Nevertheless, we held the sentencing

court ' s denial of a departure from a Jessica ' s Law sentence in a case involving aggravated indecent liberties with a child was within the sentencing court ' s discretion. 60 Kan. App.
2d at 457.4

In Powell
, the defendant had no criminal history, was willing to participate in rehabilitation, was employed, had a supportive family, and told the police the truth during the investigation. Nevertheless, our Supreme Court held that the sentencing court did not
abuse its discretio n when it denied Powell ' s departure from a Jessica ' s Law sentence for a lack of substantial and compelling reasons to depart. 308 Kan. at 917

- 18

.

In State v. Harsh , 293 Kan. 585, 587

- 88, 265 P.3d 1161 (2011)
, our Supreme Court affirmed the sentencing cou rt ' s denial of a departure motion in a Jessica ' s Law case even though the defendant ' s criminal history was 20 years old and unrelated to the offense of conviction, he accepted responsibility for his actions, and he pleaded guilty to
save his victims the tr auma of testifying

.

In State v. Plotner , 290 Kan. 774, 780, 235 P.3d 417 (2010)
, our Supreme Court affirmed the sentencing court ' s denial of a departure even though the defendant took responsibility for his actions, showed remorse, pleaded guilty to save the victims from testifying, did not commit sexual acts forcefully against the oldest victim, had no significant criminal record including no sexually motivated conv ictions, and was relatively young when he committed the crimes of conviction.

In the face of these precedents, Schneider provides no contrary case that holds that the denial of a departure under circumstances similar to his is an abuse of the sentencing

court ' s discretion. Nevertheless, Schneider concludes that the sentencing court ' s decision not to depart in his case was " a conclusion that no other judge would reach ." But the
cases described above demonstrate otherwise. We find no abuse of discretion in the district court denying Schneider ' s departure motion and imposing the standard Jessica ' s Law sentence for his crime.

Affirm ed

.