1 C O R R E C T E D O P I N I O N IN THE SUPREME COURT OF THE STATE OF KANSAS

N o

. 106,680

S TATE OF K ANSAS , Appell ant ,

v

.
W ILLIAM J OLLY , Appell ee

.

SYLLABUS BY THE COUR T

1. Analysis of what circumstances can be considered during a Jessica' s Law departure hearing involves the interpretation of K.S.A. 21

- 4643(d). Statutory interpretation is a question of law over which this court has unlimited review.

2. The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be asc ertained. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction.

3. The plain language of K.S.A. 21

- 4643(d), which makes no reference to aggravating circumstances or aggravating factors, instructs the sentencing court to conduct a review of the mitigating circumstances withou t balancing them against the aggravating ones.2 4.
W e disapprove of any language in our prior caselaw that would indicate aggravating circumstances can be weighed against mitigating circumstances when considering a departure in a Jessica ' s Law sentencing.

5. The proper statutory method when considering a departure from a Jessica' s Law sentence is for the sentencing court first to review the mitigating circumstances without any attempt to weigh them against any aggravating circumstances. Then, in considering
th e facts of the case, the court determine s 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 sentencing court must state on the record those substantial and compelling reasons.

6. In light of our interpretation of K.S.A. 21

- 4643(d), neither the district court nor an appellate court should weigh aggravating factors against mitigating factors in a Jessica ' s Law case.

7. An abuse of discretion standard applies to an appellate court's review of a district court's determination of whether mitigating circumstances presented under K.S.A . 21

- 4643(d) are substantial and compelling reasons for a departure sentence. 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 comp etent evidence does not support a finding of fact on which the exercise of discretion is based.3 8. When a discretionary decision requires fact

- based determinations, a district court
abuses its discretion when the decision is based on factual determinatio ns not supported by the evidence. Substantial competent evidence is that which possesses both relevance
and substance and furnishes a substantial basis of fact from which the issues can reasonably be resolved. In other words, substantial evidence is legal and relevant
evidence that a reasonable person might accept as being sufficient to support a
conclusion

.

9. If the sentencing judge departs from the Jessica's Law mandatory minimum term of imprisonment, the judge shall state on the record at the time of sentencing the substantial and compel ling reasons for the departure under K.S.A. 21

- 4643(d). This court
has defined " substantial " in this context as somet hing that is real, not imagined, something wi th substance and not ephemeral ; the term " compelling " imp lies that the court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary.

10.
While a single mitigating factor can be substantial and compelling enough to grant a departure from Jessica's Law , mitigating circumstances are not necessarily synonymous with sub stantial and compelling reasons under K.S.A. 21

- 4643(d).

11. In this case, the Court of Appeals majority opinion exceeded its standard of review by reweighing the evidence before the district court. A n appellate cou rt does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence

.4 12. Each mitigating circumstance is not required to sufficiently justify a departure by itself, so long as the collective circumstances constitute a substantial and compelling basis for departure.

Review of the judgment of the Court of Appeals in an unpublished opinion filed November 9,
2012

. Appeal from Saline District C ourt; R ENE S. Y OUNG , judge. Opinion filed February 20 , 2015

. Jud gment of the Court of Appeals reversing the district court is reversed . Judgment of the d istrict c ourt is
affirmed

.

Christina M. Trocheck
, assistant county attorney
, argued the cause
, and Ellen Mitchell , county attorney, and Derek Schmidt , attorney genera l, were with her on the briefs for appellant.

Janine A. Cox , of Kansas Appellate Defender Office
, argued the cause and was on the briefs for appellee.

The opinion of the court was delivered by

M ALONE , J. : The St ate appealed the district court' s imposi tion of a departure
sentence from a Jessica ' s Law life sentence under K.S.A. 21

- 4643(a). In a split decision, the Court of Appeals, concluding there were no substantial and compelling rea sons for granting the defendant' s departure motion, reversed the dist rict court and remanded the case for resentencing. State v. Jolly , No. 106,680, 2012 WL 5519179, at *7 (Kan. App. 2012) (unpublished opinion). We granted defendant' s petition for review. We reverse the Court of Appeals and affirm the district court.

On February 11, 2008, William Henry Jolly IV, a/k/a William Jolly, pleaded guilty to one count of rape of a child less than 14 years of age under K.S.A. 21

- 3502(a)(2) and (c). The sentencing judge found substantial and compelling reasons to grant Jolly ' s5 depa rture request and sentenced him to 300 months ' imprisonment. Jolly appealed his

sentence , arguing that the district court, in granting his departure request, failed to impose a sentence pursuant to the sentencing guidelines. We agreed and remanded the case for resentencing. See State v. Jolly , 291 Kan. 842, 847, 249 P.3d 421 (2011).

Following this court ' s remand, the district court again granted Jolly's request for a departure. He was sentenced to 165 months' imprisonment rather than the mandatory
minimum of 25 years to life pursuant to K.S.A. 21

- 4643(d), the statute known as Jessica's
Law. The State appealed
, arguing the district court abused its discretion in concluding there were substantial and compelling reasons to depart. Jolly seeks review of the di vided Court of Appeals opinion that concluded there were no substantial and compelling reasons for granting a departure. Jolly contends : ( 1) the Court of Appeals erroneously considered aggravating factors when considering the departure under K.S.A. 21

- 464 3(d); and, ( 2) the Court of Appeals substituted its own findings for those made by the district

court.

F ACTUAL AND P ROCEDURAL B ACKGROUND

On Sunday, July 15, 2007, 12

- year

- old C.E. came over to Jolly ' s home to play with Jolly ' s stepson. Jolly was 43 year s old and had known C.E. and her fam ily since
C.E. was an infant. Jolly knew that C.E. had recently bee n sexually abused by her
mother' s boyfriend.

At some point during the visit, Jolly laid down on a bed in the basement and C.E. joined him. According to Jo lly, he was curious how desensitized C.E. was fro m the previous sexual assault. He began touching her "to see how far she would let me go and watch her for any reactions." Jolly ' s touching of C.E. progressed to rubbing her vaginal area, inserting his fi nger into her vagina, and ultimately penetrating her vagina with his6 penis. W hen he heard a noise upstairs, it brought Jolly " back to reality" and he jumped
off the bed. They went upstairs
, and C.E. went home.

C.E. returned to Jolly ' s home the next day
, and the two of them tickled and rubbed
each other. Jolly nibbled on her neck and breasts. C.E. then asked Jolly why he did what he did to her the day before. Jolly told C.E. that what he did was wrong and it should never have happened.

A day later, C.E. t old her grandmother, R.E., that Jolly had raped her while she
was at his house. R.E. reported it to the Salina Police Department, and Jolly was interviewed by police the same day. In the inter view and in a signed statement, Jol ly admitted to both days ' inc idents.

Jolly was charged with one count of rape of a child less than 14 years of age, in
violation of K.S.A. 21

- 3502(a) (2) and (c) and two counts of aggravated indecent liberties
with a child less than 14 years old, in violation of K.S.A. 21

- 3504(a)(3)(A) and (c). On February 11, 2008, Jolly pleaded guilty to the rape charge and the State dismissed the other charges.

On October 21, 2008 , Jolly moved for a departure sentence. Jolly had obtained an
evaluation from Dr. Robert W. Barn ett, a clinical psychologist. At the departure and sentencing hearing on October 24, 2008, Dr. Barnett tes tified that Jolly would be a good candidate for probation with relatively little or no danger to the com munity. Dr. Barnett

was cross

- examined about h is opinion being based on Jolly ' s reported version of events which differed from what he had told the police. Admitting Jolly ' s inaccuracies lessened the seriousness of the offense, Dr. Barnett did not change his opinion.7 The district court granted Jolly ' s departure request from the mandatory sentence and imposed a sentence of 300 months' imprisonment with lifetime postre lease supervision. The State did not appeal the granting of the departure motion, but Jolly did appeal his sentence. In Jolly , 291 Kan. a t 847 , this court reversed and remanded for resentencing finding that the district court, in granting the departure, failed to follow the statutory requirements in setting the amount of time of imprisonment.

On July 1, 2011, the resentencing hearing was held. Jolly again asked the court to grant his departure request. Jolly relied on the same evidence and arguments that were successful at the original sentencing; i.e ., ( 1) he had no prior record, (2) Jolly 's admission and cooperation were meant to prevent any f urther harm or trauma to C.E., and (3) Dr.
Barnet t's evaluation indicated that Jolly took respo nsibility for his actions and was not a risk to the community.

The State opposed the motion
, arguing that the only mitigating factor the court
could con sider under K.S .A. 21

- 4643(d)(1) was Jolly' s lack of a criminal history

. In addition, the State contended " the facts in this case would constitute aggravating
circumstances here. " The State acknowledged Jolly' s plea avoided the need to have C.E. testify an d then urged the court to deny the departure request. " [B]ut when you consider that isolated factor and the factor of his [lack of a] prior criminal history and you weigh it with the egregious facts of this case, the State submits that clearly there ' s no substantial and compelling reasons to support a downward departure. " Finally , the State argued Dr.
Barnett's recommendations were based on Jolly's version of events in which he denied having sexual intercourse with C.E.

Stating she had considered the arg uments by Jolly and the State, the district judge found substantial and compelling reasons to depart. The judge based her decision on Jolly's lack of any criminal history; his taking responsibility for the crime by pleading8 guilty and the resulting benefit to C.E. by sparing her " further humiliation or
embarrassment " ; and Dr. Barnett's opinion that Jolly was at low risk to reoffend.

The n the judge imposed the aggravated sentence on the sentencing grid fo r a severity l evel 1 offense and a criminal history score of I, 165 mont hs' imprisonment, followed by lifetime postrelease supervision.

This time, the State appealed
, claiming the factors relied on by the district court judge did not constitute substantial and c ompelling reasons to support a sentencing dep arture

. In a divided Court of Appeals opinion, the majority reversed the sentence
, reasoning that the lack of crimi nal history alone was not sufficient to support a downward departure sentence. Jolly , 2012 WL 5519179, at *4. The majority reasoned the district court erred in using an inaccurate and incomplete report as the basis for a departure sentence and in finding Jolly took responsibility for the rape

. 2012 WL 5519179, at *5

- 7. Additionally, it found the aggravating factors of his being a 43

- year

- o ld
, trusted family friend, with knowledge of C.E.'s prior sexual abuse, who decided to assume the role of a
lover with her , outweighed his lack of criminal history. 2012 WL 5519179, at *7.

The concurring opinion joined with the majority but noted this cou rt regularly considers aggravating circumstances in our caselaw or at least all the circumstances of
the case. Jolly , 2012 WL 5519179, at *9 (Buser, J., concurring). The concurrence opined
that the district court did not understand "that the mitigating cir cumstances could be substantial and compelling only when weighed against the aggravating circumstances of
this particular case." 2012 WL 5519179, at * 10 (Buser, J., concurring). Further, the concurring opinion stated that e ven if the district court applied the correct standa rd, there

was an abuse of discretion where the mitigating circumstances were ephemeral when considered in context, especially Dr. Barnett ' s report and Jolly' s acce ptance of responsibility. 2012 WL 5519179, at *10 (Buser, J., concurring).9 The dissenting opinion found the majority improperly reweighed the evidence concerning the departure factors of Dr. Barnett's report and Jolly's taking responsibility
for the crime. Jolly , 2012 WL 5519179, at *11

- 12 (McAnany, J., dissenting).
Additional ly, the dissent stated it was : ( 1) inappropriate for the majority to find that aggravating factors outweighed Jolly's lack of a criminal record; ( 2) inappropriate for the appellate court to weigh aggravating factors against mitigating factors; and
, if appropriate
, a function of the district court; and ( 3) inappropriate to consider aggravating
factors at all. The dissent questioned how the weighing of aggravated factors against mitigating factors ever became part of the caselaw because that balanc ing is not found in
the Jessica' s Law statute. 2012 WL 5519179, at *12

- 14 (McAnany, J., dissenting).

Jolly petitioned this court for review
, arguing the Court of Appeals majority substituted its own findings for those of the district court and asking for a r esolution to the split of opinion between the majority, concurrence, and dissent. We granted review and ordered the parties to file supplemental briefs addressing whether it is appropriate for the district court to consider aggravating circumstances in con sidering a departure from a Jessica's Law sentence, and if so, the method or manner in which those circum stances should be considered.

W HAT C IRCUMSTANCES A RE TO B E C ONSIDERED FOR A J ESSICA ' S L AW D EPARTURE ?

Standard of Review

Analysis of what circums tances can be considered during a Jessica' s Law departure hearing involves the interpretation of K.S.A. 21

- 4643(d). S tatutory interpretation is a question of law over which this court has unlimited review. State v.
Holt
, 298 Kan. 469, 474, 313 P.3d 826 (2 013).10 The Statute : Jessica ' s Law, K.S.A. 21

- 4643

At the time of Jolly ' s offense, Jessica's Law, K.S. A. 21

- 4643, provided that the mandatory minimum term of imprisonment for a first time conviction of rape under
K.S.A. 21

- 3502(a)(2) and (3) was 25 years' imprisonment. As this was Jolly's first offense, K.S.A. 21

- 4643(d) granted the district court the authority to impose a departure
under certain circumstances :

"On or after July 1, 2006, for a first time conviction of an offense listed in

par agraph (a)(1), the sentencing judge shall impose the mandatory minimum term of imprisonment provided by subsection (a), unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure. If the sentencing judge departs from such mandatory minimum term of imprisonment, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure. The departure sentence shall be the sentence pursuant to the sentencing guidelines act, K.S.A. 21

- 4701 et seq., and amendment s thereto, and no sentence of a mandatory minimum term of imprisonment shall be imposed hereunder . A s used in this subsection, mitigating circumstances shall include, but are not limited to, the following :

"(1) The defendant has no significant history of prior criminal activity. "(2) The crime was committed while the defendant was under the influence of
extreme mental or emotional disturbances. "(3) The victim was an accomplice in the cr ime committed by another person, and the defendant's participation was relatively minor. "(4) The defendant acted under extreme distress or under the substantial domination of another person. "(5) The capacity of the defendant to appreciate the criminal ity of the defendant's conduct or to conform the defendant's conduct to the requirements of law was substantially impaired. "(6) The age of the defendant at the time of the crime."11 The P lain Language of K.S.A. 21

- 4643 (d)

As now presented , Jolly essenti ally asks this court to adopt the reasoning of the dissent, i.e. , the weighing of aggravating factors against mitigating factors is not found in the plain language of the statute and its use in our caselaw is erroneous. The State asks us to adopt the reaso ning of the concurrence, i.e. , our caselaw routinely considers aggravating circumstances and the court must be able to consider all the fact s of the case, whether called aggravating circumstances or something else, in order to determine if
there are substa ntial and compelling reasons to depart.

"The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained." State v. Kendall
, 300 Kan. 515, 520 , 331 P.3d 763 (2014). "When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not res ort to statutory construction. " Sta te v. Urban , 2 91 Kan. 214, 216, 239 P.3d 837 (2010 ).

Jolly argues K.S.A. 21

- 4643(d) is plain and unambiguous, and the State does not
assert otherwise. Indeed, the language of the statute is straightforward : " [T]he sentencing judge shall impose the mandat ory minimum term of imprisonment . . . unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances
, to impose a departure." (Emphasis added.) K.S.A. 21

- 4643 (d). The statute makes no provision for the weighing o f aggravating circumstances against the mitigating circumstances to determine if a departure should be imposed. In this way, the statute is unique as other sentencing statutes consider both mitigating and aggravating factors. See
K.S.A. 21

- 4716(c)(1) and ( c)( 2 ) (nonexclusive list of aggravating and mitigating factors to consider when considering departure from presumptive sentence under Kansas12 Sentencing Guidelines Act [ KSGA ] ); see also sentencing for capital crimes K.S.A. 21

- 4624(c); K.S.A. 21

- 4625 (listin g aggravating circumstances); K.S.A. 21

- 4626 (listing mitigating circumstances).

In State v. Spencer , 291 Kan. 796, 809, 248 P.3d 256 (2011) , we discussed the differences in these sentencing statutes when compared to K.S.A. 21

- 4643 (d) and explained why a Jessica' s Law departure does not involve a balancing of mitigating and aggravating factors:

" On structure, no balance between mitigators and aggravators such as that implied in K.S.A. 21

- 4716 or explicitly provided for in K.S.A. 21

- 4624(e) or K.S.A. 21

- 4 635(b)

- (d) is necessary when Jessica's Law is the starting point. The only way for Jessica's Law to operate is to intensify, if not lengthen, a sentence. It makes 25 years a mandatory minimum, unless certain mitigators justify a departure. Simply put, ther e is nowhere to go but to a less

- intense place."

We are aware that both before and after our decision in Spencer , our cases have discussed the weighing of aggravating factors in Jessica' s Law cases. See , e.g ., State v.
Remmert , 298 Kan. 621, 630, 316 P.3d 154 (2014) ( court considers mitigating circumstances and then weighs against any aggravating circumstances) ; State v. Seward
, 289 Kan. 71 5, 722, 217 P.3d 443 (2009) (district judge reviewed mitigating and aggravating factors advanced
, engaging in appropri ate weighing of competing considerations)

. However, we now clarify that the plain language of K.S.A. 21

- 4643(d)
, which makes no reference to " aggravating circumstances " or aggravating factors, instructs the sentencing court to conduct a review of the mitigating circumstances without balancing them against the aggravating ones.

Accordingly, we disapprove of any language in our caselaw that would indicate aggravating cir cumstances can be weighed against mitigating circumstances when13 consi dering a departure in a Jessica' s Law sentencing. See , e.g. , Remmert , 298 Kan. at 630 ( district court considers mitigating circumstances and then weighs against any aggravating circumstan ces); State v. Florentin , 297 Kan. 594, 598, 303 P.3d 263 (2013) ( district court reviews mitigating circumstances and then weighs those circumstances against norm defined by legislature and any aggravating circumstances ) ; State v. Salinas
, 294 Kan. 743, 74 9, 280 P.3d 221 (2012) (even though there were mitigating factors to be weighed, there were significant offsetting aggravating factors) ; State v. Baptist , 294 Kan. 728, 734, 280 P.3d 210 (2012) (district court does not simply add together total number
of m itigating circumstances and then contrast them with total number of aggravating
circumstances ) ; State v. Roberts , 293 Kan. 1093, 1098, 272 P.3d 24 (2012) (district court complied with its duty to review both mitigating and aggravating circumstances);
Sewar d , 289 Kan. at 722 (district judge orally reviewed mitigating and aggravating
factors advanced
, engaging in appropriate weighing of competing considerations)

.

Departure Considerations

E ven though the plain language of K.S.A. 21

- 4643(d) does not indicate the district court should weigh the aggravating circumstances against the mitigating circums tances in considering a Jessica' s Law departure, the district court is not restricted to considering only the mitigating circumstances of the case

. A nd, even though mitigating circumstances must be present for a finding of substantial and compelling reasons, mitigating circumstances do not necessarily equal substantial and compelling reasons. I n State v. Ortega

- Cadelan , 287 Kan. 157, 164, 194 P.3d 1 195 (2008), we rejected an argument that each mitigating factor constituted a per se substantial and compelling reason for a departure sentence :

"Here, the statutory language regarding the consideration of mitigating circumstances is clear and unambigu ous, stating the judge shall impose a life sentence 'unless the judge finds substantial and compelling reasons, following a review of14 mitigating circumstances, to impose a departure.' K.S.A. 2006 Supp. 21

– 4643(d). Contrary to [defendant' s] argument, this l anguage does not make 'mitigating circumstances' synonymous with 'substantial and compelling reasons.' Rather, there is a

two

- step procedure : first, the judge reviews mitigating circumstances; second, the judge
must determine if there are substantial and compelling r easons for a departure. "

In determining if substantial and compelling reasons for departure exist, " [t] hi s court has defined 'substantial' as 'something that is real, not imagined; something with substance and not ephemeral,' while the term '" compelling" implies that the court is forced, by the facts of a case , to leave the status quo or go beyond what is ordinary.'" (Emphasis added.) Seward , 289 Kan. at 722 (quoting State v. McKay , 271 Kan. 725, 728,
26 P.3d 58 [ 2001 ] ).

While K.S.A. 21

- 4643(d) 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 rea sons. 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 off ender carried out the crime

. This includes those " circumstances inherent in the crime and the prescribed sentence. " See Florentin , 297 Kan. at 598. Provided the sentence imposed is within the statutory limits, " ' [i] t is the sentencing judge
alone who deter mines the appropriate sentence to be imposed or other disposition of the case by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant's background, the facts of the case
, and the pub lic safety. ' " (Emphasis added.) State v. Frecks
, 294 Kan. 738, 742, 280 P.3d 217 (2012) (quoting State v. Vanderveen , 259 Kan. 836, 842, 915 P.2d 57 [1996])

.15 In view of the above, the proper statutory met hod when conside ring 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 determine s whether the mitigating
circumstanc es 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

co urt must state on the record those substantial and compelling reasons.

Application to Jolly

In light of our interpretation of K.S.A. 21

- 4643(d), neither the district court nor an appellate court should weigh aggravating factors against mitigating factors in a Jessica' s Law case. The district court should follow the steps outlined above, and the appellate
court reviews the district court ' s ruling on the departure decision under an abuse of
discretion standard. See Florentin , 297 Kan. at 599. Although the C ourt of Appeals majority engaged in this inappropriate weighing of factors in this case, the district court applied the correct analysis. Accordingly, we next consider whether substantial and compelling reasons supported the district court ' s imposition of a departure sentence.

D ID THE C OURT OF A PPEALS E RR IN R EVERSING THE D ISTRICT C OURT ' S F INDING T HAT S UBSTANTIAL AND C OMPELLING R EASONS E XISTED F OR G RANTING A D EPARTURE S ENTENCE ?

Standard of Review

" An abuse of discretion standard applies to an appellate court's review of a district court's determination of whether mitigating circumst ances presented under K.S.A. 21

- 4643(d) are substantial and compelling reasons for a departure sentence. " State v.
Ballard , 289 Kan. 1000, Syl. ¶ 8, 218 P.3d 432 (2009)

. "A di strict court abuses its16 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 discret ion is based." State v. Smith
, 299
Kan. 962, 970 , 327 P.3d 441 (2014).

"When a discretionary decision requires fact

- based determinations, a district court abuses its discretion when the decision is based on factual determinations not supported by the evi dence. " State v. Gonzalez , 290 Kan. 747, 757, 234 P.3d 1 (2010). Substantial competent evidence is that which " ' possesses both relevance and substance and which
furnishes a substantial basis of fact from which the issues can reasonably be resolved. In
othe r words, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. ' " 290 Kan. at 757 (quoting Drach v. Bruce , 281 Kan. 1058, Syl. ¶ 2, 136 P.3d 390 [ 2006 ] , cert. denied 549 U.S. 1278 [2007]).

Analysis

At the resentencing hearing, the district court considered the same evidence that Jolly presented at the original sentencing and once again found substantial and compelling reasons to depart. Jolly was sentenced to 165 months ' imprisonment with lifetime postrelease supervision for his conviction of rape of a child less than 14 years of

age. See K.S.A. 21

- 3502(a)(2) and (c). This time the State appealed, claiming the district court abused its discretion by finding substantial and compelling reasons to grant Jolly a departure

. In a split decision, the Court of Appeals reversed and remanded to t he district court for a third sentencing hearing. State v. Jolly , No. 106,680, 2012 WL 5519179, at *7 (Kan. App. 2012) (unpublished opinion). Jolly contends the Court of Appeals ' majority and concurrence improperly reweighed the evidence and substituted it s own findings for those of the district court in reversing on appeal.17 K.S.A. 21

- 4643(d) sets forth a nonexclusive list of mitigating circumstances for consideration in a Jessica's Law departure. "If the sentencing judge departs from such mandatory minim um term of imprisonment, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure." K.S.A. 21

- 4643(d). As discussed above
, " [t] his court has defined 'substantial' as 'something that is real, not imagined; something with substance and not ephemeral,' while the term '"compelling" implies that the court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary.'" Seward , 289 Kan. at 722 (quoting State v. McKay , 271 Kan . 725, 728, 26 P.3d 58 [2001]).

In granting Jolly ' s departure request, the district court relied on one statutory factor, Jolly' s lack of criminal history; and two nonstatutory factors, his taking responsibility for the crimes and Dr. Barnett's psych ological report

. We review each in

turn.

1. Lack of C riminal History

The first mitigating factor cited by the district court was Jolly' s lack of criminal history under K.S.A. 21

- 4643(d)(1):

"The Court has considered the arguments made by the defendant and the arguments made by the State, and the Court is going to find in this case that there are substantial and compelling reasons to grant a departure to a guideline sentence in this

case. Those reasons are that the defendant has

— the first is, the defenda nt's lack of criminal history. In looking at the defendant's criminal history worksheet, apparently, he has been convicted of no criminal offenses in the past, and the Court does believe that is significant. And one of the reasons is the Court

— that does le ad the Court to believe that,
at least

— well, the defendant was 43 years old when the offenses were committed, and that would lead the Court to believe that the defendant has had the ability in the past,18 anyway, to control his actions, which would hopefully make it less likely for the
defendant to re

- offend in the future since he has demonstrated some ability to control himself in the past."

On appeal, the Court of Appeals majority discounted the significance of his lack of criminal history :

"There is n o evidence in the record on appeal that Jolly controlled his actions in the past, and there is certainly no evidence of what he will or will not do in the future. The evidence is only that he did not have a criminal history. We find that the lack of crimin al history is a factor to be considered but it alone is not a substantial and compelling reason for a downward departure sentence, especially because of the facts of this case." Jolly
, 2012 WL 5519179, at *4.

The dissent commented the majority was asking Jolly to prove a negative, and no evidence established that Jolly had previously engaged in this course of conduct , with C.E. or any other child, prior to his conviction. 2012 WL 5519179, at *11 (McAnany, J., dissenting). Judge McAnany noted that " [t]he legislature specifically identified as a mitigating factor the fact that the defendant has no significant criminal history. See
K.S.A. 21

- 4643(d)(1). " 2012 WL 5519179, at *11 (McAnany, J., dissenting).

Even though t he majority minimized the importance o f this statutorily expressed mitigator

— Jolly ' s lack of criminal history

— both the majority and the dissent concluded Jolly ' s lack of a criminal history was a mitigating factor to be considered. We agree.

While a single mitigating factor can be substantial and compelling enough to grant a departure from Jessica's Law
, State v. Rochelle , 297 Kan. 32, 47, 298 P.3d 293
, cert. denied 134 S. Ct. 270 (2013) , "mitigating circumstances" are not necessarily synonymous with "substantial and compelling reasons" under the statute. State v. Thomas , 288 Kan.19 157, 163, 19 9 P.3d 1265 (2009). In this case, the district judge did not limit her analysis to Jolly ' s lack of criminal history but considered other mitigating factors in determining if a departure was warranted. We e lect to do the same.

2. Taking Responsibility for the Crime

A second nonstatutory mitigating factor relied on by the district court was that Jolly took responsibility for his crimes by pleading guilty to rape :

"[T]he defendant did take responsibility for his actions in this case. He did enter a plea. I can't recall if it was guilty or no contest, but the defendant did accept responsibility for his actions, and the [victim] was not required to testify at trial and was not subject to, you know, further h umiliation or embarrassment or further traumatized by that, by being required to testify at trial."

On appeal, the majority acknowledged Jolly ' s plea but discounted its significance
because : (1) the plea agreement allowed him to avoid a trial; (2) Joll y later denied raping C.E. during his evaluation; (3) Jolly asked for leniency asserting he did nothing wrong; and (4) Jolly never apologized to C.E. 2012 WL 5519179, at * 6

- 7. C onsequently, it concluded the district court abused its discretion by finding t hat Jolly took responsibility for the rape.

The dissent disagreed
, reasoning the district court heard and obviously rejected Jolly' s protestations of innocence. It observed t he district court confined its analysis to the fact that Jolly pled guilty to the crime and spared his young victim from having to tes tify in a public trial. 2012 WL 5519179, at *12 (McAnany, J., dissenting).

We agree with Jolly ' s assertion that the majo rity opinion exceeded its standard of review by reweighing the evidence before the district court. See State v. Reed , 300 Ka n.20 494, 499 , 332 P.3d 172 (2014) ( "An appellate court does not reweigh the evidence, assess the credibility of the witnesses, or res olve conflicting evidence." )

. Regardless of his motives, Jolly spared C.E. from having to testify by pleading guilty. In addition, Jolly ' s plea of guilty was an admission that he committed the crime against C.E. See K.S.A. 22

- 3209(1) (" A plea of guilty is admission of the truth of the charge and every material fact alleged therein. " )

. In other words, on the record and in the presence of the eventual sentencing judge, Jolly accepted responsibility for his actions. " [A] cceptance of responsibility can be a mit igating factor in support of a departure" under the KSGA. State
v. Bird , 298 Kan. 393, 398, 312 P.3d 1265 (2013).

Substantial competent evide nce supports the district court' s factual finding that Jolly took responsibility for his crime. We find no abuse of discretion in the district court relying on this factor as a mitigating circumstance.

3. Dr. Barnett's Report

The final nonstatutory mitigating factor reli ed on by the district court was the opinions rendered by Dr. Barnett that Jolly was not a risk to the community . Dr. Barnett
conducted a psychological evaluation of Jolly on June 30, 2008. Although Jolly had previously admitted to the rape in a police interview and signed a statement reflecting the

same , he told Dr. Ba rnett that he only touched C.E .' s breasts and vagina but denied having intercourse with her. Jolly also told Barnett t hat he pled guilty to raping C.E

.

Dr. Barnett testified at the first sentencing hearing. The discrepancies between Jolly's version of events and what Jolly had previou sly admitted to were explored by the
State on cross

- examination, e.g. , C.E

. was 12 years old , not 13; and Jolly inserted his penis in her vagina, not just penetrated her with his fingers. Dr. Barnett opined that this21 information might have some impact on h is recommendation but he did not want to speculate. The district court made the following findings regarding Dr. Barnett's report:

"The Court has reviewed Dr. Barnett's report and the Court does take into consideration the State's statement that the defe ndant was not fully

— was not completely truthful with him

. But the court did note some other matters in Dr. Barnett's report, and that was that the defendant had been employed for some time at the time of this offense. Dr. Barnett did not find any evidence of the defendant having any anti

- social behaviors. The defendant did not have any previous history of being molested himself, which I think we all know can be significant because frequently those who have been sexually molested are more apt to re

- offend. D r. Barnett found that the defendant did not have any history of mental illness and he did not diagnose him with any psychological disorder. The Court does believe that for those reasons the defendant would present less of a danger to society than an indivi dual that did have a long history of mental illness or had
anti

- social behaviors. Dr. Barnett found that the defendant did not possess the traits of a pedophile or of a sexual predator. So, for those reasons, the Court is going to find in this
case that th ere are substantial and compelling reasons to grant the defendant the departure in this case to a guideline sentence." (Emphasis added.)

On appeal, the majority found the court's reliance on this report was erroneous:

"Jolly's description of the crime is totally false. In his testimony at the original sentencing, Dr. Barnett stated, 'Mr. Jolly does not appear to have a history of sexual offending, of being accused or suspected of molesting adolescents or children.' Dr. Barnett also testified, 'It's impo ssible for me to know in this case what impact it had on the victim. That's really not my charge in this case.' Dr. Barnett's conclusions were based on Jolly's description of his 'crime,' other information supplied by Jolly, and no
consideration of what hi s crime did to C.E. Dr. Barnett never saw the police report. . . .

. . . . "Because Dr. Barnett did not have critical information, Dr. Barnett did not have 'the full picture' when he wrote his report. Dr. Barnett's lack of information casts doubt on
his entire evaluation. The resentencing court erred in using an inaccurate and incomplete22 report as the basis for the departure sentence. Dr. Barnett's report does not satisfy the requirement of a substantial and compelling reason for the departure." Jolly
, 2012 WL 5519179, at *5.

Jolly again argues the majority exceeded its standard of review by reweighing the evidence concerning Dr. Barnett' s evaluation before the district court. We agree. As observed by the dissent, no objection was made to Dr. Barnett's qualific ations to testify as an expert, that he lacked a proper foundation for his opinion, or to his report being
admitted into evidence. See Jolly , 2012 WL 5519179, at * 11

- 12 (McAnany, J., dissenting)

. While Jolly clearly provided inaccurate or incomple te information to Dr. Barnett, the district court took those inaccuracies into account in weighin g his testimony. By rejecting the district court's conclusion regarding the weight and veracity to be given to Dr. Barnett's testimony and report
, the majority erroneously stood in the shoes of the sentencing judge and determined what it would have found

. See State v. Coleman , 275 Kan. 796, 809, 69 P.3d 1097 (2003) (Court of Appeals improperly reweighed evidence
and reached different conclusion than did trial co urt).

The district court focuse d on the portion of Dr. Barnett' s psychological report and testimony which showed that Jolly displayed no signs of mental disease or defect, that he
had no history of alcohol or drug abuse, that he had long employment and a stable relationship with his wife, that he exhibited no signs of pedophilia or sexual predation,
that he was unlikely to reoffend, and that he might be a good candidate for probation with psychother apy and medication. It is clear from the record that the d istrict court was fully
aware of both the inaccuracies in Dr. Barnett' s report and the facts of the case but found
Dr. Barnett' s opinions credible. Substantial competent evidence thus supports the distr ict
court's reliance on Dr. Barnett' s opinion that Jol ly did not present a risk to the community. Accordingly, the district judge did not abuse her discretion by relying upon this opinion as a mitigating factor.23 4. Substantial and Compelling Reasons to Depart

As substantial competent evidence supports the mitigating circumstances relied on by the district court, we shift our review to whether the evidence constituted substantial and compelling reasons to depart under K.S.A. 21

- 4643(d). Unlike the Court of Appeals majority, the district court did not weigh t he aggravating factors against the mitigating
factors. In properly following the Jessica ' s Law statute, the district court first reviewed the mitigating circumstances of the case : Jolly' s age along with his absence of criminal record; his pleading guilt y to the crime; and Dr. Barnett' s report and opinion, which was thoroughly cross

- examined. With this factual backdrop, the court determined the mitigating factors supported substantial and compelling reasons to depart. See State v.
Florentin , 297 Kan. 594, 5 99 , 303 P.3d 263 (2013) ( " [E]ach mitigating circumstance [is not] required to sufficiently justify a departure by itself, so long as the collective circumstances constitute a substantial and compelling basis for departure. " )

.

The district court thus made no error in fact or law in its analysis. Essentially, the
State' s contention is that due to the facts of this case no reasonable person would grant Jolly a departure. Although other reasonable persons may not have granted the departure,
we find that a re asonable person coul d agree with the district judge' s determination that a departure was warranted. Cf. 297 Kan. at 602 ( " Even though we might individually disagree with the district court judge's decision, we cannot say that the district court judge
is th e only reasonable person who would deny Florentin's motion for departure. " )

. We
therefore conclude that the district court did not abuse its d iscretion when it granted Jolly' s departure motion under K.S.A. 21

- 4643(d).

The judgment of the Court of Appeals is reversed, and the judgment of the district
court is affirmed.24 M ICHAEL J. M ALONE , Senior Judge, assigned. 1

1 REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 106,680 under the authority vested in the Supreme Court by K.S.A. 20

- 2616 to fill the vacancy on the court created by the appointment of Justice Nancy Moritz to the United States 10th Circuit Court of Ap peals.