State v. Revell ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,913
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
THADDEUS J. REVELL,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed May 6, 2022.
Affirmed.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Kristi D. Allen, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before POWELL, P.J., GREEN, J., and RICHARD B. WALKER, S.J.
PER CURIAM: Thaddeus J. Revell appeals the trial court's denial of a downward
durational departure at sentencing. After Revell's conviction for rape, the trial court
sentenced him to an off-grid, hard 25 indeterminate life sentence under Jessica's Law.
Because the trial court did not abuse its discretion in ordering the presumptive sentence,
we affirm.
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FACTS
Revell pleaded no contest to rape, in violation of K.S.A. 2018 Supp. 21-
5503(a)(3), sexual intercourse with a child under the age of 14. The factual basis for the
plea included that Revell, age 47, engaged in sexual intercourse with a relative, age 12,
and a child was born as a result, confirmed by DNA testing. The trial court accepted
Revell's no-contest plea and found him guilty of rape.
Revell moved for a durational departure sentence. Revell argued that mitigating
circumstances constituted substantial and compelling reasons to justify a departure from
life imprisonment. Revell cited the following factors: (1) his actions were not conducted
in a violent manner; (2) by entering a plea, Revell saved the court the time and expense of
trial and saved his juvenile victim the pain and embarrassment of publicly testifying
against her relative about a sex crime and the resulting pregnancy; (3) drug use and
mental illness impaired his judgment; (4) the crime was unlikely to reoccur; (5) Revell's
background of physical and mental abuse from his birth parents and his adoptive parents
called for leniency; (6) Revell had been employed for most of his adult life; (7) Revell's
chronic back pain and hip deterioration would be aggravated by a prolonged prison
sentence and an earlier release would relieve the Kansas Department of Corrections from
the burden of his care; (8) Revell's criminal history score reflected only one prior
conviction, failure to pay child support, a nonperson felony; and (9) Revell's untreated
mental health and substance abuse issues were better addressed in a nonprison setting.
The trial court denied the durational departure, sentenced Revell to life imprisonment,
and ordered lifetime postrelease supervision.
Revell timely appeals.
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ANALYSIS
Revell argues that the trial court abused its discretion by denying his motion for
durational departure. The State argues that the trial court's decision was not arbitrary,
fanciful, or unreasonable. Because the trial court did not abuse its discretion, we affirm.
The standard of appellate review of a departure sentence under the revised Kansas
Sentencing Guidelines Act (KSGA) depends on the question raised. State v. Morley, 312
Kan. 702, 711, 479 P.3d 928 (2021). Under the KSGA, the appellate courts lack
jurisdiction to consider challenges to the denial of motions for departure sentences
because the courts lack jurisdiction to consider appeals from presumptive on-grid
sentences. State v. Rizo, 304 Kan. 974, 984, 377 P.3d 419 (2016). K.S.A. 2020 Supp. 21-
6820 limits appellate review of departure sentences. But this statutory bar does not apply
to appellate review of off-grid indeterminate sentences. See State v. Wilson, 294 Kan.
818, 820, 280 P.3d 784 (2012).
Sentencing under Jessica's Law, as set forth in K.S.A. 2020 Supp. 21-6627,
generally provides for a life sentence with a mandatory minimum term of 25 years'
imprisonment. The statute, however, expressly authorizes and provides a procedure for
imposing a departure sentence from the mandatory minimum sentence. See K.S.A. 2020
Supp. 21-6627(d). 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 KSGA if,
"following a review of mitigating circumstances," the court finds substantial and
compelling reasons to do so. K.S.A. 2020 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 on all the facts of the
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case, whether the mitigating circumstances rise to the level of "'substantial and
compelling reasons'" to depart from the mandatory minimum sentence. Powell, 308 Kan.
at 913-14 (quoting State v. Jolly, 301 Kan. 313, 324, 342 P.3d 935 [2015]). The trial
court must state on the record those substantial and compelling reasons. Jolly, 301 Kan.
at 324; see also State v. McCormick, 305 Kan. 43, 50-51, 378 P.3d 543 (2016) (reversing
sentence when appellate court was not "wholly confident" that the statutory principles
outlined in Jolly were followed). The trial court need not affirmatively articulate that it
refrained from weighing the circumstances. Powell, 308 Kan. at 908.
An appellate court reviews the determination of whether substantial and
compelling reasons to depart exist in a Jessica's Law case for abuse of discretion. Powell,
308 Kan. at 902 (citing Jolly, 301 Kan. at 325).
An appellate court will not reverse a sentencing court's denial of a departure under
Jessica's Law unless the court abused its discretion in holding there was no substantial
and compelling reason to depart. Powell, 308 Kan. at 902.
A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or
unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State
v. Levy, 313 Kan. 232, 237, 485 P.3d 605 (2021).
The party asserting the trial court abused its discretion bears the burden of
showing such abuse of discretion. State v. Crosby, 312 Kan. 630, 635, 479 P.3d 167(2021).
If something other than a life sentence is imposed, the sentencing court must state
the substantial and compelling reasons for departure and must depart to the applicable
KSGA grid box. Once the sentence becomes a KSGA sentence, the court is free to depart
from the sentencing grid. But departure findings must justify both steps. State v.
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Gilliland, 294 Kan. 519, 551, 276 P.3d 165 (2012). Dispositional departures for any
crimes for extreme sexual violence as defined in K.S.A. 2020 Supp. 21-6815(c)(2)(F) are
prohibited; any durational departure sentence for such crime cannot be less than 50
percent of the center range of the sentence for such crime. See K.S.A. 2020 Supp. 21-
6818(a).
If any of the factors articulated by the sentencing court would justify the departure,
the decision will be upheld on appeal. A departure may be justified by the collective
factors even if no one factor, standing alone, would justify a departure. State v. Bird, 298
Kan. 393, 398, 312 P.3d 1265 (2013). A single mitigating factor alone can constitute a
substantial and compelling reason for departure under Jessica's Law. Jolly, 301 Kan. at
327. Mitigating factors that justify departure in one case may not justify one in all cases.
State v. Randle, 311 Kan. 468, 482, 462 P.3d 624 (2020).
A sentencing court need not make findings or state its reasons when denying a
departure request for a crime within the guidelines grid. State v. Dull, 298 Kan. 832, 842,
317 P.3d 104 (2014) (denial of departure in Jessica's Law case). Nor is the court required
to make specific findings to support imposition of a presumptive guidelines sentence
within the proper grid box. State v. Huerta, 291 Kan. 831, 835-36, 247 P.3d 1043 (2011).
The trial court reviewed Revell's motion for departure and heard from defense
counsel and from Revell himself at sentencing. The trial court held that Revell failed to
show substantial and compelling reasons justifying a departure. On appeal, Revell does
not argue legal or factual error, leaving only the possibility that the trial court abused its
discretion because its ruling was arbitrary, fanciful, or unreasonable. Revell's argument,
in its entirety, is as follows: "The district court abused its discretion in denying a
durational departure sentence. The circumstances cited by Mr. Revell, as a whole,
provided substantial and compelling reasons to justify a departure from a life prison
sentence." Revell's conclusory argument is unpersuasive. Furthermore, if Revell had
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presented substantial and compelling reasons to depart from the presumptive sentence,
the permissive language of K.S.A. 2020 Supp. 21-6627(d) allows but does not require the
trial court to depart from a life sentence. The trial court did not abuse its discretion by
imposing the presumptive sentence under K.S.A. 2018 Supp. 21-6627(a)(1) of
imprisonment for life with a mandatory minimum of 25 years in prison.
Revell also argues that the trial court erred by ordering postrelease supervision
instead of parole on an indeterminate life sentence. The State agrees that the trial court
erred. The State filed a notice that the trial court has already corrected the error by nunc
pro tunc judgment, but this judgment has not been added to the record on appeal.
Appellate courts may vacate the improper imposition of lifetime postrelease supervision,
allowing the trial court to correct the judgment without the need for further proceedings.
State v. Becker, 311 Kan. 176, 191, 459 P.3d 173 (2020). The trial court's nunc pro tunc
judgment becomes effective when entered.
For the preceding reasons, we affirm.
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