                           NOT DESIGNATED FOR PUBLICATION

                                              No. 121,381

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                    v.

                                          HENRY L. SYLVESTER,
                                              Appellant.


                                   MEMORANDUM OPINION

        Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed April 3, 2020.
Affirmed in part and dismissed in part.


        Caroline M. Zuschek, 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 ARNOLD-BURGER, C.J., GREEN and BUSER, JJ.


        PER CURIAM: Henry L. Sylvester appeals his sentence upon his conviction of
sexual exploitation of a child. After granting a downward-durational departure, the
district court sentenced Sylvester to 24 months in prison. Sylvester contends the district
court abused its discretion by (1) refusing to make border-box findings and imposing a
nonprison sentence, (2) denying his request for a dispositional departure to probation, and
(3) failing to grant a greater durational departure.




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       Upon our review, we hold that we lack jurisdiction to review the district court's
refusal to make border-box findings. Moreover, we hold the district court did not err by
refusing to grant a dispositional departure or a greater durational departure. Accordingly,
we affirm in part and dismiss in part.


                        FACTUAL AND PROCEDURAL BACKGROUND

       On May 6, 2018, a coworker reported to police that he found child pornography on
Sylvester's cellphone. After obtaining a warrant to search the cellphone, Detective James
Pearman located two videos of nude adolescent females. Both videos were about 30
minutes in length and focused on the juveniles' breasts and pubic areas. The first video
depicted three females under 14 years old who were completely nude and playing
outside. The other video began with three juveniles outside in bathing suits and
transitioned to a studio setting where one of the juveniles was completely nude in an
apparent photo shoot.


       Detective Pearman interviewed Sylvester, who admitted that he downloaded the
videos and stored them on his cellphone. Sylvester described the videos as "naturism"
videos which he watched because they were "interesting and beautiful." He explained that
the videos sometimes sexually aroused him, and he had masturbated while watching
them. Sylvester believed the females in the videos were about 13 years old.


       The State charged Sylvester with two counts of sexual exploitation of a child, a
severity level 5 felony. About four months after Sylvester was charged, he obtained a
psychosexual evaluation. During the evaluation, Sylvester informed the examiner that he
was the real victim and the truth was not told in this case. Sylvester did not believe that
he was a sex offender, that he had committed any type of sex offense, that he needed
treatment, or that treatment would help him.



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       Later, Sylvester entered into a plea agreement, in which he agreed to plead guilty
to one count of sexual exploitation of a child. In exchange for Sylvester's guilty plea, the
State agreed to dismiss the second count of sexual exploitation of a child. The State also
agreed to recommend a prison sentence in the mid-number of the appropriate Kansas
Sentencing Guidelines Act (KSGA) grid box. Under the agreement, Sylvester was able to
argue for a lesser sentence.


       At the plea hearing, the following colloquy occurred:


               "THE COURT: Are you pleading guilty because you are in fact guilty of Count
       1?
               ....
               "THE COURT: I'm sorry. I did not hear that.
               "[SYLVESTER]: I know you didn't. I don't feel like I am guilty.
               "THE COURT: Look, I don't want you to feel like you are being forced or
       rushed or anything like that. There is nothing about this that we need to go fast about.
               "[SYLVESTER]: I will accept the guilty plea."


After additional discussion to insure that Sylvester wanted to plead guilty, the district
court accepted Sylvester's plea and found him guilty.


       A presentencing investigation report revealed that Sylvester had a criminal history
score of I, placing him in a border box on the KSGA sentencing grid with a presumptive
sentence of 31, 32, or 34 months imprisonment. For border-box sentences, the district
court has the discretion to impose an optional nonprison sentence if it makes certain
findings—often called border-box findings—about community safety interests and the
availability and suitability of treatment programs. K.S.A. 2019 Supp. 21-6804(f), (q).


       Before sentencing, Sylvester moved for a sentencing departure and/or a nonprison
border-box sentence. Sylvester argued that he should receive probation or a durational

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departure because: (1) he accepted responsibility for his crimes; (2) community
programs existed to better promote his reformation and improve community safety; (3) he
had no prior felony convictions; and (4) the psychosexual evaluation suggested he could
be treated within the community and he agreed to participate in such treatment. Given
these reasons, Sylvester asked the district court to make border-box findings or find that
substantial and compelling reasons existed for a sentencing departure.


       At sentencing, Sylvester additionally argued that probation was appropriate
because he had a son in the community, is a veteran, and was sexually abused as a child.
Sylvester also pointed out that he had alcohol abuse issues, had completed treatment
twice, and would benefit from substance abuse treatment if placed on probation.


       In response, the State argued for the imposition of a prison sentence, claiming that
treatment would not help because Sylvester did not believe he was a sex offender or
needed help. The State pointed out that Sylvester was intelligent, as revealed by a test
placing his IQ level in the 92nd percentile. The State continued:


       "He knows what he's doing. He knows this is wrong and he's proactively going out and
       trying to circumvent the law to get to ultimately what he needs and to use it in the way
       that he tells law enforcement that he uses it, which is to become aroused and masturbate
       to it."


The State concluded that Sylvester was a public safety risk if released on probation.


       The district court granted a durational departure and sentenced Sylvester to 24
months in prison, finding that he had a very limited criminal history, accepted
responsibility by pleading guilty, and had lifetime accountability for his actions. The
district court, however, refused to make border-box findings or grant a dispositional
departure. The district court expressed its concern that community treatment programs


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would not help Sylvester given his belief that he was not a sex offender and did not need
treatment for his behavior. The district judge concluded that


       "with the alcohol problem and the issue of denial here I believe that a prison sanction,
       shortened, albeit, but, one, will help reinforce to you how wrong it is to view this material
       and to take an approach to it as you are. So that's part of what I believe is ultimately in
       the community's safety best interest is for that to happen."


       Sylvester timely appeals his sentence.


                                               ANAYLSIS

       On appeal, Sylvester contends the district court abused its discretion by denying
his request for probation or, alternatively, not granting a longer durational departure.
Sylvester first claims the district court erred by failing to make border-box findings and
imposing an optional nonprison sentence. Sylvester next argues that the district court
erred by failing to find substantial and compelling reasons to depart dispositionally or to
grant a greater durational departure.


Jurisdiction

       Before considering the merits of Sylvester's arguments, we address whether our
court has jurisdiction over his claims. Whether jurisdiction exists is a question of law
over which our scope of review is unlimited. State v. Smith, 304 Kan. 916, 919, 377 P.3d
414 (2016). When the record discloses a lack of jurisdiction, we must dismiss the issue
on appeal. Kaelter v. Sokol, 301 Kan. 247, 247, 340 P.3d 1210 (2015).


       An appellate court has jurisdiction over the appeal of any departure sentence under
K.S.A. 2019 Supp. 21-6820(a), unless a more specific provision divests the court of
jurisdiction. State v. Looney, 299 Kan. 903, 909, 327 P.3d 425 (2014). A defendant may,

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therefore, appeal the grant of a downward departure that is less than or different than that
requested and still complain the sentencing court did not depart enough. 299 Kan. at 908-
09. As a result, we have jurisdiction over Sylvester's claim that the district court erred by
refusing to grant a dispositional departure or a greater durational departure.


       A specific provision in K.S.A. 2019 Supp. 21-6804(q), however, divests our court
of jurisdiction over Sylvester's claim that the district court erred by failing to make
border-box findings. Under K.S.A. 2019 Supp. 21-6804(f), when an offense is classified
in a sentencing grid border box, a district court "may impose an optional nonprison
sentence as provided in subsection (q)." K.S.A. 2019 Supp. 21-6804(q) provides that
"[a]ny decision made by the court regarding the imposition of an optional nonprison
sentence . . . shall not be subject to appeal." As a result, the district court's refusal to make
border-box findings and grant an optional nonprison sentence is not subject to appeal
even though the court granted a durational departure. See State v. Stricklin, No. 114,504,
2016 WL 5867239, at *2 (Kan. App. 2016) (unpublished opinion). Accordingly, we lack
jurisdiction to review the district court's refusal to make border-box findings and dismiss
this portion of Sylvester's appeal.


           DISPOSITIONAL DEPARTURE OR GREATER DURATIONAL DEPARTURE

       Sylvester argues that the district court abused its discretion by refusing to grant a
dispositional departure to probation or a greater durational departure. Sylvester claims
substantial and compelling reasons existed to warrant such a departure because he: (1)
accepted responsibility for his crimes; (2) agreed to undergo sex offender treatment as a
condition of probation; (3) lacked a significant criminal history; and (4) had a son, steady
employment, military service, and was previously the victim of sexual abuse.


       Our court reviews the extent of a district court's departure sentence for an abuse of
discretion. State v. Spencer, 291 Kan. 796, 807-08, 248 P.3d 256 (2011). A judicial action

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constitutes an abuse of discretion if (1) no reasonable person could take the view of the
district court; (2) the action is based on an error of law; or (3) the action is based on an
error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). As the party
asserting the district court abused its discretion, Sylvester bears the burden of showing it.
State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018). Sylvester does not argue that
the district court made a factual or legal error. Instead, Sylvester simply argues that no
reasonable person would have denied his request for a dispositional departure or for a
shorter prison term.


       A sentencing court must impose a defendant's presumptive sentence, unless it
"finds substantial and compelling reasons to impose a departure sentence." K.S.A. 2019
Supp. 21-6815(a). A reason is substantial if it is real and of substance, as opposed to
being imagined and ephemeral. State v. Reed, 302 Kan. 227, 250, 352 P.3d 530 (2015).
Reasons are compelling when the facts of the case force the court to abandon the status
quo and impose an abnormal sentence. 302 Kan. at 250.


       Under K.S.A. 2019 Supp. 21-6815(c), a district court may consider both
mitigating and aggravating factors when determining whether substantial and compelling
reasons exist for a departure sentence. Reasons which may justify a departure in one case
may not justify a departure in every case. Instead, courts must review the crime and the
departure factors as a whole to determine whether a departure is justified. 302 Kan. at
250.


       Here, the record shows that the district court carefully considered Sylvester's
proffered substantial and compelling reasons for a departure sentence when it chose to
depart durationally to a 24-month prison sentence. The district court discussed its reasons
supporting its imposition of a downward-durational departure: Sylvester had a limited
criminal history, accepted responsibility by pleading guilty, and would be subject to
lifetime accountability through postrelease supervision. But the district court determined
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that these factors were not substantial and compelling reasons to further depart given
Sylvester's stated opinion that he is not a sex offender and does not need treatment.


       A reasonable person could agree with the district court's decision to deny
Sylvester's request for a sentencing departure to probation or a lesser prison term. During
his psychosexual evaluation and plea hearing, Sylvester indicated that he did not believe
he was guilty of a sex offense. Sylvester also suggested that he did not need treatment
and treatment would not help him. Moreover, Sylvester pointed out at sentencing that—
despite twice completing treatment for alcoholism—he still struggles with alcohol abuse,
which impairs his decision-making. As a result, the district court reasonably concluded
that a 24-month prison sanction was needed to reinforce the wrongfulness of Sylvester's
actions and to ensure the safety of the community.


       We hold the district court did not abuse its discretion in refusing to grant Sylvester
a dispositional departure or a greater durational departure.


       Affirmed in part and dismissed in part.




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