State v. McElroy ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,024
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
STEVEN A. MCELROY,
Appellant.
MEMORANDUM OPINION
Appeal from Montgomery District Court; JEFFREY GETTLER, judge. Opinion filed January 22,
2021. Affirmed.
Jennifer C. Bates, of Kansas Appellate Defender Office, for appellant.
Kurtis Wiard, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before WARNER, P.J., POWELL, J., and MCANANY, S.J.
PER CURIAM: Steven McElroy appeals his off-grid sentence, arguing the district
court abused its discretion when it denied his motion for a downward durational
departure without considering K.S.A. 2019 Supp. 21-6601. We find the district court's
decision was within the discretion permitted by Kansas law and affirm.
In September 2018, the State charged McElroy with two counts of rape of a child
under 14 years old, under K.S.A. 2018 Supp. 21-5503(a)(3), and two counts of
endangering a child. McElroy pleaded no contest to all charges against him.
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Each rape conviction was an off-grid felony carrying a presumed hard 25
sentence—lifetime imprisonment with no possibility of parole for 25 years. See K.S.A.
2019 Supp. 21-5503(b)(2); K.S.A. 2019 Supp. 21-6627(a)(1)(B). Before sentencing,
McElroy filed a motion for a downward durational departure. He argued that several
mitigating factors justified a lesser sentence, including his lack of a substantial criminal
history, his decision to enter a plea and to forego a preliminary hearing, and the age of the
victim (who was two months away from turning 14 when the offenses occurred).
McElroy also noted that his plea did not result in the dismissal of any charges against
him.
At the September 2019 sentencing hearing, Seth Wescott, the director of a private
sexual offender treatment program, described administering assessments to evaluate
McElroy's sexual risk and treatment needs. McElroy demonstrated a below-average
intelligence, an average risk to reoffend, and a sexual recidivism probability between
4.8% and 6.5% over the next five years, though that probability would decrease over
time. Aggregating multiple assessments, that probability ranged between 3% and 9.1%
over the next three years. After hearing arguments, the court denied McElroy's motion for
a departure, explaining that while his minimal criminal history, guilty plea, and level of
intelligence supported a departure, they did not constitute substantial and compelling
reasons to depart from the presumed sentence under Kansas law. The court imposed a
hard 25 sentence for each rape offense, to be served concurrently. McElroy now appeals
that sentence.
Under K.S.A. 2019 Supp. 21-6627(d)(1)—commonly known as Jessica's Law—a
court must impose a mandatory sentence of life imprisonment for certain charges,
including rape, unless mitigating factors give rise to substantial and compelling reasons
to depart from this directive. Appellate courts review a district court's assessment as to
whether mitigating factors justify a departure for an abuse of discretion. State v. Atkisson,
308 Kan. 919, Syl. ¶ 3, 425 P.3d 334 (2018). A court abuses its discretion when no
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reasonable person would agree with the court's decision or when the decision is based on
a mistake of fact or law. 308 Kan. 919, Syl. ¶ 4.
McElroy acknowledges this directive but argues that the district court erred when
it denied his departure motion without considering the overarching policy goals regarding
punishment and sentences discussed in K.S.A. 2019 Supp. 21-6601. That statute instructs
that Kansas sentencing statutes
"shall be liberally construed to the end that persons convicted of crime shall be dealt with
in accordance with their individual characteristics, circumstances, needs and potentialities
as revealed by case studies; that dangerous offenders shall be correctively treated in
custody for long terms as needed; and that other offenders shall be dealt with by
probation, suspended sentence, fine or assignment to a community correctional services
program whenever such disposition appears practicable and not detrimental to the needs
of public safety and the welfare of the offender, or shall be committed for at least a
minimum term within the limits provided by law." K.S.A. 2019 Supp. 21-6601.
McElroy asserts that if the district court had heeded the principles of K.S.A. 2019
Supp. 21-6601, it would have granted his departure motion. We find this argument
unpersuasive. K.S.A. 2019 Supp. 21-6601 states general policy aims, with more specific
directives included throughout the Kansas sentencing statutes. Thus, contrary to
McElroy's claim on appeal, the district court implicitly considered the policy goals of
K.S.A. 2019 Supp. 21-6601 because the structure of Jessica's Law incorporates those
principles.
Jessica's Law presumes a hard 25 sentence will be imposed when a defendant
commits certain sex offenses involving minors, reflecting a legislative presumption that
those who commit such crimes pose a danger to society and should receive a harsh
punishment. See State v. Woodard, 294 Kan. 717, 722, 280 P.3d 203 (2012) (given sex
offenders' higher risk to reoffend, the State has a particularly compelling interest in
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incarcerating offenders to protect children); State v. Spencer, 291 Kan. 796, 809, 823-24,
248 P.3d 256 (2011) (noting legislative intent to punish and incapacitate offenders and
that unlike other sentencing statutes, which permit upward and downward departures, a
hard 25 sentence is a maximum sentence with no place to depart but down). By
permitting a court to impose a lesser sentence when mitigating circumstances give rise to
substantial and compelling reasons for a departure, the statute also recognizes that—
consistent with the legislature's statement in K.S.A. 2019 Supp. 21-6601—a case's unique
circumstances may warrant a more lenient sentence.
Thus, the principles of K.S.A. 2019 Supp. 21-6601 are inherent in Jessica's Law.
At least one other panel of our court has reached the same conclusion. See State v. White,
No. 120,719, 2020 WL 1897338, at *2-3 (Kan. App. 2020) (unpublished opinion) (noting
that K.S.A. 2019 Supp. 21-6601 announces a general policy statement and does not
abandon the retributive and incapacitative purposes of punishment and that Jessica's Law
governs as a more specific statute), petition for rev. filed June 15, 2020; see also State v.
Forrest, No. 120,604, 2020 WL 5739715, at *3 (Kan. App. 2020) (unpublished opinion)
(noting argument but finding district court examined all mitigating factors before denying
departure), petition for rev. filed October 26, 2020; State v. Rogers, No. 120,353, 2020
WL 1313809, at *3-4 (Kan. App.) (unpublished opinion) (declining to address argument
for the first time on appeal), rev. denied 312 Kan. ___ (September 30, 2020).
While the court denied McElroy's departure motion, that denial does not indicate a
failure to apply the sentencing principles included in K.S.A. 2019 Supp. 21-6601 or the
other Kansas sentencing statutes. And reasonable people could disagree about whether
McElroy presented substantial and compelling reasons to depart from the presumed
sentence under Kansas law. Under these circumstances, the district court did not abuse its
discretion when it denied McElroy's motion for a downward durational departure.
Affirmed.
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