                          NOT DESIGNATED FOR PUBLICATION

                                             No. 121,329

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         STATE OF KANSAS,
                                             Appellee,

                                                   v.

                                       TRAVIS PAUL ODOM,
                                           Appellant.


                                  MEMORANDUM OPINION

       Appeal from Cherokee District Court; OLIVER KENT LYNCH, judge. Opinion filed August 7,
2020. Affirmed.


       Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.


       Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.


Before ARNOLD-BURGER, C.J., STANDRIDGE and POWELL, JJ.


       PER CURIAM: Travis Paul Odom appeals from his sentence after a jury convicted
him on four counts of rape and one count of aggravated indecent liberties with a child. At
his original sentencing, the district court denied Odom's departure request and sentenced
him to terms of imprisonment for life without the possibility of parole for 25 years on
each count, running two sentences consecutively and the remaining three sentences
concurrently. On direct appeal, a panel of this court affirmed the convictions but vacated
his sentences because the district court had erroneously imposed lifetime postrelease
supervision instead of lifetime parole. On resentencing, the parties asked the court to take
judicial notice of their original arguments and the court adopted its previous ruling,

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imposing the same prison sentence but with lifetime parole. After review of Odom's
claims, we affirm his sentences.


                           FACTUAL AND PROCEDURAL HISTORY


       A full recitation of the underlying facts is unnecessary to resolve Odom's
sentencing challenge. In short, the State charged Odom with four counts of rape and one
count of aggravated indecent liberties with a child in 2014 after M.W.—then 12 years
old—disclosed to her mother that Odom and his minor son had repeatedly raped M.W. on
separate occasions when both children were between the ages of 9 and 11. Following a
four-day trial, during which Odom and his son testified and denied the allegations, the
jury convicted Odom on all five counts.


       Odom moved for a departure before sentencing, arguing that substantial and
compelling reasons to depart existed in part because of his minimal criminal history with
no prior felonies, a supportive family, family obligations to his sons, the lack of a threat
to society, and his defense had merit but ultimately failed. The State responded, asserting
the nature of his convictions did not allow for a dispositional departure and arguing that
Odom showed no substantial and compelling reasons to warrant a durational departure.
Since Odom's convictions were all off-grid crimes, he faced a presumptive life sentence
without the possibility of parole for 25 years on each of the five counts. See K.S.A. 2019
Supp. 21-6627(a). But under a sentencing provision commonly called the "double-
double" rule, the court could only sentence Odom to a maximum period of double the
base sentence. See K.S.A. 2019 Supp. 21-6819(b)(4).


       At Odom's original sentencing, his counsel advocated for a departure without
requesting any specific prison term or presenting evidence. After hearing the State's
argument and a statement by the victim's mother, the district court denied Odom's
motion, noting "[t]here is nothing before the court to support any of those factors either
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individually or together as supporting a departure." The same judge who presided over
the trial sentenced Odom. The court imposed a sentence of life without the possibility of
parole for 25 years on each count with lifetime postrelease supervision, running the first
two counts consecutively and the remaining three concurrently.


       Odom directly appealed, challenging the lifetime postrelease supervision portion
of his sentence. State v. Odom, No. 117,263, 2018 WL 1883902 (Kan. App.)
(unpublished opinion), rev. denied 308 Kan. 1599 (2018) (Odom I). The panel affirmed
his convictions but vacated his sentences because the district court erroneously imposed
lifetime postrelease supervision instead of lifetime parole. 2018 WL 1883902, at *7-8.


       At the resentencing, the district court asked Odom if he had any challenges to the
PSI or his criminal history, briefly addressed the departure motion, and gave Odom a
chance to speak. The parties asked the district court to take judicial notice of Odom's
previous departure motion and the arguments made at the original sentencing. The court
adopted its previous ruling and imposed the same sentence, excepting the order for
lifetime parole.


       Odom timely appeals.


                                        ANALYSIS


       Odom argues the district court erred in denying his motion for a departure, asking
this court to vacate his sentence for the second time and remand for resentencing. He
contends the district court abused its discretion by ignoring the following mitigating
circumstances: (1) he had a minimal criminal history, consisting of only two
misdemeanor convictions; (2) his defense had merit and he maintains his innocence; and
(3) he had a supportive family and family obligations to his sons.


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       The State contends this court should not reach the merits of Odom's claims
because the law of the case doctrine precludes review. In the alternative, the State argues
the district court did not abuse its discretion because none of the factors mentioned in his
brief warrant a departure, given the "appalling facts" leading to his convictions.


The law of the case doctrine does not preclude our review.


       Whether the law of the case doctrine bars an issue is a legal question over which
appellate courts exercise unlimited review. State v. Parry, 305 Kan. 1189, Syl. ¶ 3, 390
P.3d 879 (2017). It governs issues of law previously decided in proceedings as part of the
same case. See State v. Kleypas, 305 Kan. 224, 244, 382 P.3d 373 (2016).


       The Kansas Supreme Court has said,


       "The doctrine of the law of the case is not an inexorable command, or a constitutional
       requirement, but is, rather, a discretionary policy which expresses the practice of the
       courts generally to refuse to reopen a matter already decided, without limiting their power
       to do so. This rule of practice promotes the finality and efficiency of the judicial process.
       The law of the case is applied to avoid indefinite relitigation of the same issue, to obtain
       consistent results in the same litigation, to afford one opportunity for argument and
       decision of the matter at issue, and to assure the obedience of lower courts to the
       decisions of appellate courts." State v. Collier, 263 Kan. 629, 631, 952 P.2d 1326 (1998)
       (quoting 5 Am. Jur. 2d, Appellate Review § 605).


       The doctrine applies not only to matters decided but also to those issues for which
a party failed to seek review in a previous proceeding. See Parry, 305 Kan. at 1195
(citing Smith v. Bassett, 159 Kan. 128, Syl. ¶ 3, 152 P.2d 794 [1944]). "[O]n remand from
a higher court, absent narrow exceptions, a district court's jurisdiction to resentence or
otherwise deviate from an already pronounced sentence is limited to the express



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instructions contained in the higher court's mandate." (Emphasis added.) State v. Tafoya,
304 Kan. 663, 667, 372 P.3d 1247 (2016).


       So we turn to the substance of the Odom I court's ruling.


               "Clearly, the proper sentence required mandatory lifetime parole rather than
       lifetime postrelease supervision. The State suggests that the district court vacate this
       portion of the sentence, but the mandatory rather than discretionary nature of the
       imposition of parole does not permit this remedy. Moreover, contrary to the State's
       suggestion, the district court may not simply change the sentence to lifetime parole
       instead of lifetime postrelease supervision, even if that is what the district court
       subjectively intended because parole and postrelease supervision are not legally
       synonymous. [Citations omitted.] Sentencing is a critical stage of the criminal
       prosecution and requires the presence of the criminal defendant. See K.S.A. 2017 Supp.
       22-3405; State v. Hall, 298 Kan. 978, 987, 319 P.3d 506 (2014) ('[A]ny completion of
       sentencing must take place in the defendant's presence in open court.']. As a result, this
       court may not simply vacate the part of the district court's sentencing order imposing
       lifetime postrelease supervision on each of Odom's convictions; the case must be
       remanded to the district court for resentencing." (Emphasis added.) Odom I, 2018 WL
       1883902, at *7.


       The sole basis upon which the case was remanded was the district court's
erroneous order of lifetime postrelease supervision instead of parole. The directions given
to the parties here vary significantly from what the Kansas Supreme Court has ordered in
the past. Our Supreme Court has a long history of doing just what the Odom I panel said
it could not do—vacate just that part of the court's order imposing lifetime postrelease
supervision. See State v. Becker, 311 Kan. 176, 191, 459 P.3d 173 (2020) ("The improper
imposition of lifetime postrelease supervision can be vacated, allowing the district court
to correct the judgment without the need for further proceedings."); State v. Johnson, 309
Kan. 992, 997-98, 441 P.3d 1036 (2019) ("The State concedes this issue and suggests the
remedy is to vacate the order of lifetime postrelease supervision rather than remand the

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case for resentencing. . . . We agree."); State v. Cash, 293 Kan. 326, 330-31, 263 P.3d
786 (2011) ("[T]he district court erred in imposing lifetime postrelease supervision, and
that portion of Cash's sentence is hereby vacated.").


       Our concern in applying such a discretionary policy as the law of the case to
prohibit review here is the expressed direction to the district court and the parties to
"resentence" Odom. The panel correctly concluded Odom's original sentence was illegal
because the district court had imposed lifetime postrelease supervision instead of lifetime
parole. Odom, 2018 WL 1883902, at *7. Yet when choosing the proper remedy, the panel
disagreed with the State's suggestion that the district court could simply vacate the illegal
portion or correct the sentence. Instead, the panel determined the case needed to be
remanded for resentencing with Odom present. 2018 WL 1883902, at *7-8. We can
understand the confusion this must have caused considering the existing Supreme Court
precedent. Accordingly, we consider the merits of Odom's sentencing challenge.


The court did not abuse its discretion when it denied Odom's departure motion.


       The standard of review when reviewing a denied departure motion is abuse of
       discretion.


       As Odom notes, this court applies the abuse of discretion standard when reviewing
a district court's decision on a departure sentence from K.S.A. 2019 Supp. 21-6627,
commonly known as Jessica's Law. See State v. Jolly, 301 Kan. 313, 325, 342 P.3d 935
(2015). A judicial action constitutes an abuse of discretion if (1) no reasonable person
would take the view adopted by the trial court; (2) the decision is based on an error of
law; or (3) the decision is based on an error of fact. State v. Marshall, 303 Kan. 438, 445,
362 P.3d 587 (2015). As the movant, Odom bears the burden of showing an abuse of
discretion. State v. Powell, 308 Kan. 895, 910, 425 P.3d 309 (2018).


                                              6
       Although Odom identifies the correct standard of review, he does not argue the
district court committed any legal or factual error. So this court must determine only
whether no reasonable person could have agreed with the judge's decision. State v.
Florentin, 297 Kan. 594, 602, 303 P.3d 263 (2013) ("[I]f only one reasonable person
would agree with the district court judge, we must affirm the decision. This is a
substantial burden . . . ."), disapproved of on other grounds by Jolly, 301 Kan. 313.


       District courts use the two-step framework from K.S.A. 2019 Supp. 21-6627(d)
       and Jolly when considering a departure in a Jessica's Law case.


       Under Jessica's Law, a defendant who is 18 or older and convicted of a first-time
offense of rape or aggravated indecent liberties with a child under age 14 shall be
sentenced to life in prison with a mandatory minimum term of imprisonment of at least
25 years. K.S.A. 2019 Supp. 21-6627(a)(1). These crimes are not subject to the Kansas
Sentencing Guidelines Act (KSGA) sentencing grid.


       A district court may depart from the nongrid mandatory sentence to the sentencing
grid sentence if it finds "substantial and compelling reasons, following a review of
mitigating circumstances, to impose a departure." K.S.A. 2019 Supp. 21-6627(d)(1).
Something is "'"substantial"'" if it 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."'" Jolly, 301 Kan. at 323.


       Mitigating circumstances include, but are not limited to, whether:


               "(A) The defendant has no significant history of prior criminal activity;
               "(B) the crime was committed while the defendant was under the influence of
       extreme mental or emotional disturbances;
               "(C) the victim was an accomplice in the crime committed by another person,
       and the defendant's participation was relatively minor;

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               "(D) the defendant acted under extreme distress or under the substantial
       domination of another person;
               "(E) 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; and
               "(F) the age of the defendant at the time of the crime." K.S.A. 2019 Supp. 21-
       6627(d)(2).


       When reviewing whether a departure to the sentencing grid is warranted in a
Jessica's Law case, a district court will first review the mitigating circumstances without
trying to weigh them against aggravating circumstances. Then, considering the facts of
the case, the court will determine whether the mitigating circumstances rise to the level of
substantial and compelling reasons to depart from the otherwise mandatory sentence. 301
Kan. at 324. While mitigating circumstances are necessary for a finding of substantial
and compelling reasons to depart, mitigating circumstances do not automatically warrant
a departure. 301 Kan. at 323. The statute requires a court to state its reasons for granting a
departure, but the court is not required to make findings or state its reasons for denying a
departure request under Jessica's Law. See K.S.A. 2019 Supp. 21-6627(d)(1); State v.
Dull, 298 Kan. 832, 842, 317 P.3d 104 (2014).


       Odom fails to establish that the district court abused its discretion.


       On appeal, Odom points to one statutory and two nonstatutory mitigating factors
to justify his request for a downward durational departure: (1) his lack of any significant
criminal history; (2) his defense had merit and he maintains his innocence; and (3) his
family supported him and he had family obligations to his sons. See K.S.A. 2019 Supp.
21-6627(d)(2).


       When considering Odom's renewed departure motion at resentencing, Odom
simply incorporated his previous arguments and the court adopted its previous ruling.

                                                    8
The court noted—at the original sentencing—that most of the "mitigating" factors Odom
relied upon were simply the opposite of the statutory aggravating factors in a case
sentenced under the KSGA. See K.S.A. 2019 Supp. 21-6815(c). Our Supreme Court has
found that the absence of an item under statutory mitigating factors that is the opposite of
a listed statutory aggravating factor is intentional. State v. Favela, 259 Kan. 215, 235, 911
P.2d 792 (1996). In Favela the court found that a victim who is particularly vulnerable
due to age can be an aggravating factor supporting an upward durational departure, but a
victim who is not vulnerable due to age cannot be a mitigating factor supporting a
downward departure. 259 Kan. at 235. But this was not a KSGA case and the court here
noted that while under certain circumstances some of the factors relied upon "could be
found to be substantial and compelling reasons for a departure," those circumstances
were not present in this case. The court specifically noted the lack of any supporting
evidence presented at either sentencing hearing. On appeal, Odom abandons all but the
three mitigating factors listed above. The court found that these were not substantial and
compelling reasons to depart from this Jessica's Law case.


       Odom's departure motion cited several cases to support his assertion that the
mitigating factors presented have been recognized as possible factors rising to the level of
substantial and compelling reasons to depart. See, e.g., State v. Murphy, 270 Kan. 804,
808, 19 P.3d 80 (2001) (family support), abrogated by State v. Martin, 285 Kan. 735, 175
P.3d 832 (2008); Favela, 259 Kan. at 236 (no prior felony convictions); State v. Grady,
258 Kan. 72, 88, 900 P.2d 227 (1995) (failed defense that was not meritless); State v.
Crawford, 21 Kan. App. 2d 859, 861, 908 P.2d 638 (1995) (family to support). But these
cases are all distinguishable because none involved off-grid Jessica's Law offenses.
Moreover, all the decisions recognized the district court's discretion when considering a
departure request.


       In addition, offenders in Odom's position have made similar arguments in these
types of cases and have been denied relief. See State v. Whorton, 292 Kan. 472, 475-76,
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254 P.3d 1268 (2011) (finding district court considered mitigating factor of the
defendant's low criminal history score and upholding departure denial); State v. Staples,
No. 119,252, 2019 WL 1746787, at *4-5 (Kan. App.) (unpublished opinion) (finding
record did not support abuse of discretion because district court evaluated mitigating
factors, including strong family support and family members who depended on
defendant), rev. denied 310 Kan. 1070 (2019).


       In sum, the district court judge clearly considered the mitigating factors asserted
by Odom and found them to be neither substantial nor compelling in this case. The judge
was also the trial judge in the case and was aware of the facts presented at trial. The jury
found Odom guilty of four counts of rape and one count of aggravated indecent liberties
with a child that began when she was 9 and ended when she was 11. There was also
evidence that he forced his minor son to do the same. We have no trouble finding that a
reasonable person could agree with the district court's decision to deny Odom's durational
departure request. Accordingly, he fails to show that the district court abused its
discretion.


       Affirmed.




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