1

CORRECTED OPINION

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 106,680

STATE OF KANSAS,

Appellant,

v.

WILLIAM JOLLY,

Appellee.

SYLLABUS BY THE COURT

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 ascertained. 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 without balancing them against the 

aggravating ones.
2

4.

We 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 

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 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 competent 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 determinations 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 compelling reasons for the departure under K.S.A. 21-4643(d). This court 

has defined "substantial" in this context as something that is real, not imagined,

something with substance and not ephemeral; 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.

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 substantial 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. An appellate court 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 Court; RENE S. YOUNG, judge. Opinion filed February 20, 2015.

Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is 

affirmed.

Christina M. Trocheck, assistant county attorney, argued the cause, and Ellen Mitchell, county 

attorney, and Derek Schmidt, attorney general, 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

MALONE, J.: The State appealed the district court's imposition 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 reasons for 

granting the defendant's departure motion, reversed the district 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's 
5

departure 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 divided 

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. 21-4643(d); 

and, (2) the Court of Appeals substituted its own findings for those made by the district 

court.

FACTUAL AND PROCEDURAL BACKGROUND

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 years old and had known C.E. and her family since 

C.E. was an infant. Jolly knew that C.E. had recently been 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 Jolly, he was curious how desensitized C.E. was from 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 finger into her vagina, and ultimately penetrating her vagina with his 
6

penis. When 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. told 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 interview and in a signed statement, Jolly 

admitted to both days' incidents.

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. Barnett, a clinical psychologist. At the departure and 

sentencing hearing on October 24, 2008, Dr. Barnett testified that Jolly would be a good 

candidate for probation with relatively little or no danger to the community. Dr. Barnett 

was cross-examined about his 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 postrelease 

supervision. The State did not appeal the granting of the departure motion, but Jolly did 

appeal his sentence. In Jolly, 291 Kan. at 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 further harm or trauma to C.E., and (3) Dr. 

Barnett's evaluation indicated that Jolly took responsibility 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 consider 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 and 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 arguments 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 pleading 
8

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.

Then the judge imposed the aggravated sentence on the sentencing grid for a 

severity level 1 offense and a criminal history score of I, 165 months' 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 compelling reasons to support a sentencing 

departure. In a divided Court of Appeals opinion, the majority reversed the sentence,

reasoning that the lack of criminal 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-old, 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 court 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 circumstances 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 even if the district court applied the correct standard, there 

was an abuse of discretion where the mitigating circumstances were ephemeral when 

considered in context, especially Dr. Barnett's report and Jolly's acceptance 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).

Additionally, 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 balancing 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 resolution 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 considering a departure from a 

Jessica's Law sentence, and if so, the method or manner in which those circumstances 

should be considered. 

WHAT CIRCUMSTANCES ARE TO BE CONSIDERED FOR A JESSICA'S 

LAW DEPARTURE?

Standard of Review

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. State v. 

Holt, 298 Kan. 469, 474, 313 P.3d 826 (2013).
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 

paragraph (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 amendments

thereto, and no sentence of a mandatory minimum term of imprisonment shall be 

imposed hereunder. As 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 crime 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 criminality 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 Plain Language of K.S.A. 21-4643(d)

As now presented, Jolly essentially 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 reasoning of the concurrence, i.e., our caselaw routinely considers 

aggravating circumstances and the court must be able to consider all the facts of the case, 

whether called aggravating circumstances or something else, in order to determine if 

there are substantial 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 resort 

to statutory construction." State v. Urban, 291 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 mandatory 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 of 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 Kansas 
12

Sentencing Guidelines Act [KSGA]); see also sentencing for capital crimes K.S.A. 21-

4624(c); K.S.A. 21-4625 (listing 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-

4635(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, there 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. 715, 722, 217 P.3d 443 (2009) (district judge reviewed mitigating and 

aggravating factors advanced, engaging in appropriate 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 circumstances can be weighed against mitigating circumstances when 
13

considering 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 circumstances); 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, 749, 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 mitigating 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); 

Seward, 289 Kan. at 722 (district judge orally reviewed mitigating and aggravating 

factors advanced, engaging in appropriate weighing of competing considerations).

Departure Considerations

Even 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 circumstances in 

considering a Jessica's Law departure, the district court is not restricted to considering 

only the mitigating circumstances of the case. And, 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. In State v. 

Ortega-Cadelan, 287 Kan. 157, 164, 194 P.3d 1195 (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 unambiguous, stating the judge shall impose a life sentence 

'unless the judge finds substantial and compelling reasons, following a review of 
14

mitigating circumstances, to impose a departure.' K.S.A. 2006 Supp. 21–4643(d).

Contrary to [defendant's] argument, this language 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 reasons for a departure."

In determining if substantial and compelling reasons for departure exist,"[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.'"

(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 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." See Florentin, 297 Kan. at 598. 

Provided the sentence imposed is within the statutory limits, "'[i]t is the sentencing judge 

alone who determines 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 

public 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 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.

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 Court 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.

DID THE COURT OF APPEALS ERR IN REVERSING THE DISTRICT COURT'S FINDING THAT 

SUBSTANTIAL AND COMPELLING REASONS EXISTED FOR GRANTING A DEPARTURE 

SENTENCE?

Standard of Review

"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." State v. 

Ballard, 289 Kan. 1000, Syl. ¶ 8, 218 P.3d 432 (2009). "A district court abuses its 
16

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." 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 evidence." 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 

other 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 the 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 its 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 minimum 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 psychological report. We review each in 

turn.

1. Lack of Criminal 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 defendant'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 lead 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 no 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 criminal 

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 the majority minimized the importance of 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, 199 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 elect 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 humiliation 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) Jolly 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. Consequently, it 

concluded the district court abused its discretion by finding that Jolly took responsibility 

for the rape.

The dissent disagreed, reasoning the district court heard and obviously rejected

Jolly's protestations of innocence. It observed the district court confined its analysis to the 

fact that Jolly pled guilty to the crime and spared his young victim from having to testify 

in a public trial. 2012 WL 5519179, at *12 (McAnany, J., dissenting).

We agree with Jolly's assertion that the majority opinion exceeded its standard of 

review by reweighing the evidence before the district court. See State v. Reed, 300 Kan. 
20

494, 499, 332 P.3d 172 (2014) ("An appellate court does not reweigh the evidence, assess 

the credibility of the witnesses, or resolve 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 mitigating factor in support of a departure" under the KSGA. State 

v. Bird, 298 Kan. 393, 398, 312 P.3d 1265 (2013). 

Substantial competent evidence 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 relied 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. Barnett that he only touched C.E.'s breasts and vagina but denied 

having intercourse with her. Jolly also told Barnett that 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 previously 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 this 
21

information might have some impact on his 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 defendant 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. Dr. 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 individual 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 there 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 impossible 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 his 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 incomplete
22

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 qualifications 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 incomplete information to Dr. 

Barnett, the district court took those inaccuracies into account in weighing 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 court).

The district court focused 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 

psychotherapy and medication. It is clear from the record that the district 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 district 

court's reliance on Dr. Barnett's opinion that Jolly 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 the 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 guilty 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, 599, 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 reasonable person could 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 the only reasonable person who would deny Florentin's motion for departure."). We 

therefore conclude that the district court did not abuse its discretion 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

MICHAEL J. MALONE, 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 

Appeals.