                           NOT DESIGNATED FOR PUBLICATION

                                             No. 120,698

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         STATE OF KANSAS,
                                             Appellee,

                                                    v.

                                      MICHAEL JASON BROWN,
                                           Appellant.


                                   MEMORANDUM OPINION

        Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed April 17, 2020.
Affirmed.


        Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.


        Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before ATCHESON, P.J., WARNER, J., and WALKER, S.J.


        PER CURIAM: Defendant Michael Jason Brown pleaded guilty to one count of
aggravated indecent liberties with a child, a Jessica's Law crime carrying a standard
sentence of life in prison without parole consideration for 25 years. The Sedgwick
County District Court denied Brown's request for a departure sentence and imposed the
standard sentence. Brown has appealed on the grounds the district court abused its
discretion because he offered substantial and compelling mitigating circumstances. We
find no abuse of discretion and affirm.



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       As part of an agreement with the State, Brown agreed to plead to one count of
aggravated indecent liberties with a child. The State dismissed two other counts. The
victim in each count was Brown's seven-year-old daughter. Under the agreement, the
State would request a standard Jessica's Law sentence and Brown was free to ask for a
downward departure.


       At the sentencing hearing, Brown argued he should receive a mitigated sentence
because he had no material criminal history, a presentencing evaluation showed he had a
low risk for reoffending, and he spared his daughter having to testify or otherwise
participate in the criminal case when he agreed to plead guilty. In explaining its decision
to deny the motion for mitigation, the district court noted at the outset the familial
relationship between Brown and the victim and went on to find Brown's asserted bases
for a sentence reduction to be individually and collectively insubstantial. The district
court sentenced Brown to life in prison with first consideration for parole after 25 years.
Brown has appealed.


       On appeal, Brown contends the district court abused its discretion in denying his
request for a mitigated sentence. See State v. Jolly, 301 Kan. 313, Syl. ¶ 7, 342 P.3d 935
(2015) (abuse of discretion standard governs district court's sentencing mitigation
decision). A district court exceeds that discretion if it rules in a way no reasonable
judicial officer would under the circumstances, if it ignores controlling facts or relies on
unproven factual representations, or if it acts outside the legal framework appropriate to
the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906,
935, 296 P.3d 1106 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).


       Under Jolly, a district court must consider the defendant's proffered mitigating
factors without measuring them against any aggravating factors and then determine
whether the mitigation evidence is sufficiently substantial and compelling to warrant
some sentencing relief in light of the overall circumstances of the case. 301 Kan. 313,

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Syl. ¶ 5. The district court outlined the Jolly standard as the template it intended to follow
in explaining its sentencing decision.


       Brown first complains that the district court effectively weighed an aggravating
factor against his mitigating evidence when it noted the victim was his seven-year-old
daughter. A district court would abuse its discretion by weighing mitigating and
aggravating factors, since that would disregard the governing legal framework set out in
Jolly. But we disagree with Brown's premise. The district court simply made an
observation as to a fact about the victim as a prelude to its substantive analysis. We
further discount Brown's argument because the district court expressly recognized the
Jolly rule and later explained that it found no aggravating factors.


       Brown next complains that the district court abused its discretion in a general
sense by giving insufficient consideration to the mitigating circumstances he presented.
Again, we disagree. Brown's lack of criminal history is a mitigating consideration, but it
doesn't require mitigation. See K.S.A. 2019 Supp. 21-6627(d). The district court
discounted the evaluation assessing Brown as an unlikely recidivist because the evaluator
relied on Brown's account of the crimes that materially minimized his culpability. That's
simply recognition of a weakness in the proffered mitigation evidence and not a weighing
of mitigating and aggravating factors. Although Brown's decision to plead did keep his
daughter from having to testify, he realized a significant benefit, as well. The State
dismissed two charges. Had Brown gone to trial and been convicted on all of them, he
could have been sentenced consecutively, greatly extending his wait to be considered for
conditional release from prison.


       The district court understood the facts of the case and the governing legal
standards. Brown's claim for abuse of discretion, then, rests on the supposition that no
other district court would have denied his motion for a departure sentence in similar
circumstances. Given those circumstances, including the young age of the victim and the

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extent of the sexual abuse, we readily conclude other district courts would find the
standard statutory sentence to be appropriate in this case. In short, the district court could
not have abused its discretion by any stretch of the record.


       Affirmed.




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