January 30th. The Kansas Supreme Court has issued its opinion in State v. Thomas (No. 99,711). In a unanimous decision written by Justice Luckert the Court affirmed the life sentence pronounced on James Thomas of Sedgwick County for the repeated touching and fondling of his 5 year old grandaughter. Note: this case was argued while Chief Justice McFarland was still a member of the court. She was recused from the case and her place taken by Judge Melissa Standridge of the Court of Appeals.
Thomas had pleaded no contest to two charges of aggravated indecent liberties with a child, but admitted to committing the acts on at least 150 occasions. He pled no contest to spare his victim the trial. For this reason and others (including his eligibility for treatment) he sought and his victim’s family agreed to a sentence of probation. The two counts he was charged with fell in time on either side of a change in the law that imposed a mandatory life sentence with eligibility for parole after 25 years. As a consequence he made a motion for a downward departure from the sentencing guidelines where based on mitigating circumstances a judge can disregard the ‘mandatory minimum sentence’. Thomas argued that since he was 59 years old the standard sentence amounted to life without parole. He also cited a lack of criminal history and eligibiluity for sex offender treatment. In his motion he suggested that the sentence would be a cruel and unusual punishment, but crucially he never made that argument before the District Court. Judge Anthony Powell considered the motion, but rejected it and based on Thomas’ admission of repeating the crimes over 150 times ruled that in this case justice was served by the mandatory minimum of 25 to life.
In his appeal Thomas argues that his sentence represents a cruel and unusual punishment under the United States Constitution and the Kansas Bill of Rights. He also argues as a back up that the District Court abused its discretion in not granting him a downward departure in his sentence. The Court rejected the first argument since it was not raised in the District Court. Arguments may not be raised for the first time on appeal. There are some narrow exceptions to that rule, but as with the recent decision in State v. Ortega-Cadelan the Court declined to invoke them.
The second part of Thomas’ appeal was also rejected. The Court rejected Thomas’ argument that each of the example mitigating factors in the statute was a sufficient compelling reason to depart from the sentencing guidelines and reviewed the Court’s sentence under an abuse of discretion standard. Since that legal test to is that no reasonable person could agree with the Trial Judge’s decision, the Court affirmed his sentence.
Thomas will be eligible for parole if and when he is 84.