Excerpts from the sentencing hearing

What is the state recommending?

Judge, I ask that you follow the plea agreement in terms of how it structures the counts. I just have it right here. Thank you.

I ask that you follow the plea agreement in terms of, to structure the counts in consecutive context, to achieve the controlling sentence of 323 months.

I have fashioned it in --

This plea agreement was fashioned out of this thought of out of how to take into consideration persistent sex offender status, and how many -- how many counts were involved, and his criminal history, and so on.

I ask that you overrule the defendant's motion for departure. Not scored in his criminal history is the fact that, even as a juvenile, he had an aggravated indecent liberties case (holy shit, I didn't know that) for which he received diversion of it. And then, as an adult, he had the aggravated sexual battery case pled down from a rape in 93 CR 326. (holy shit again!)

As a way of part of the discovery in this case, I provided to Mr. Orr two psychological evaluations that were prepared for sentencing in the 1993 case. And when you go back and look at the psychological evaluations, the flags should be going off all over the place.

Looking at the last sentence, even of the psychological evaluation done, dated June 17th of 1993, at that time the defense expert was saying psychotherapeutic intervention treatment is not indicated, and certainly punitive charges should be dropped due to lack of intent or placation. And now look at what has happened to this small child after all of these years.

I ask that you overrule the defendant's motion and follow the plea form.

Thank you.

Mr. Orr.

Thank you, Your Honor.

Well, Your Honor, this is a very difficult case. It has been a very difficult case from the beginning. And part of the reason it's been so difficult, is because of Asshole's cooperation and acceptance of what he's done in this case.

And that's indicated by the no contest plea.

Your Honor, the no contest plea, and Ms. Ladner can confirm, is simply because we did not feel he could get through a factual basis. We thought it would be easier for all concerned.

And, as I said, it was simply done because we did not believe we were going to get through a factual basis. We thought it would be easier for all concerned if the state provided a factual basis; and that was the reason for that plea. It was not an attempt to evade responsibilities.

[...]

He has been, from the very beginning, attempting to do what he can. And now, granted, we are not minimizing what he did to [the victim], but we're saying that, in spite of what he did, he does still have her best interest at heart, and has taken complete responsibility.

[...]

He's done everything he can to try to minimize the damage that he's caused.

And, again, I'm not saying this to minimize what he has done, but I am saying that he has done what he can to try to minimize any additional damage to [the victim].

Additionally, he has indicated to me his need, a desire, to obtain counseling and treatment, in his words, so that he can understand why he did this.

It's the counseling that I think he can obtain. It's not something he's going to get readily in the Department of Corrections, but it's counseling that he can get on the streets. And that's why we're not asking the court to consider the probationary term, we're simply asking the court to consider a lesser means or incarceration so that he will still have the amendability for treatment and will still be able to obtain the treatment that he needs.

Asshole has done what he can while he's been in custody to rehabilitate himself. In addition to everything we've already talked about, on the taking responsibility [...] he has also been obtaining the church services, and just did just complete the eight separate section Bible study that's provided by prison ministries. And he has been an ideal inmate while in custody.

He does have family responsibilities that I think need to be considered. His wife is apparently in risk of losing her home because of the cut of income of the family. (you mean the income he got borrowing money from me?) And so, there is a situation there, that again, he hates to see somebody else being hurt by his actions, and so he's trying to minimize the damage. He does have a fairly impressive employment record. He is a (cheap) jewelry maker and vendor. He has been doing that, and supporting his fami1y with that full-time, for a number of years. And he has arranged for a job to be waiting for him when he is released, all about the same time after, but when he is released.

He also has significant support by the community, as indicated from letters provided to the court and Ms. Ladner.

And, finally, I think the age of the prior, being a 12 or 13-year-old case, is something else that the court can consider. We're asking the court to consider a downward durational departure, and running the counts concurrently, to whatever level the court feels is appropriate, for all of the reasons that we have indicated in our motion.

Other than that, I think Asshole does wish to address the court in allocution, but that's, I think, all I got to say, Your Honor.

Thank you.

Thank you.

Mr. McAsshole, do you have anything to say in your own behalf, or any other evidence that you would like to present in mitigation of punishment?

Mr. Orr basically said what I was wanting to say about --

I mean, I don't want [the victim] to have to be involved in any of this. I didn't want her to have to come up here, or any of that, put her through anything else because of what I've already done.

Um, I'd like -- I'd tried to do everything I can to try and not involve her in any more of this. I already have. And I am trying to make it better, and make up for everything, make up for what I could in here.

I've tried to change my life as much as I can in here by doing anything that they allow me here in the jail by attending the church and Bible study classes, (that's bullshit and you know it) and anything that can be productive.

I mean, I just checked to see if there was anything, other things I can do in here. I realize there is not much I can do, other than the Bible study classes, and church, and learning more about what good living is supposed to be about and what I'm supposed to be like. How about not fondling little girls for a start?

[...]

And I cooperated with the detectives with everything they've asked me to do, and everything in here I was supposed to do. And I don't know what they're going to offer me in the prison, (I have an idea of what the other inmates are going to offer you) and what I can do there, but I'll take any kind of classes or treatments, or like career things, so that I can try to have even a better job.

I've got a job like in a wildlife control that I do on a private basis outside. And he said he'd take me back whenever I can get back out right away for work. (if he's still alive and not retired when he's 90)

And I can try to take classes to get a better career. And my wife says she is going to stay by me, and she'll be there for me when I get out. (you wanna bet?) And providing she's still alive, and we'll still have a place to live together, somehow, and through the money that I save in prison. So I think that's about all I can think of.

So you're seriously standing here in front of me promoting yourself as the good guy as part of your mitigating statements to me?

Your Honor --

No. I heard what he said Mr. Orr. I want to talk to this right now. Since he wants to tell me how he's just tried to make everything so easy for [the victim], and how he's tried to do the right things so that she doesn't have to come to court.

Why don't we focus on what you did to her. And this didn't just happen once, it happened at least five times. And it didn't go on for one occasion, it went on over a year's span at least; didn't it?

Yes, Your Honor.

But you didn't make her come up here and testify, so you're a good guy; huh?

Is that what you are telling me?

No.

I'm supposed to cut you some slack because you didn't make her, that little girl, come up here [...] you're a good guy in this whole thing; right?

You've been a sex offender since you were a juvenile. You've had plenty of time to get treatment and get your problems fixed. And you didn't.

Your motion for departure is overruled, with vigor. Thank you!

I find that the primary offense here is Count Four, which calls for a prison term of 180, 190, or 200 months, and a post-release supervision duration of 36 months.

It is the judgment, order, and sentence of this court, that you be sentenced as follows:

In Count One, aggravated indecent liberties with a child, 61 months.

In Count Two, 61 months.

In Count Three, 61 months.

In Count Four, the primary crime, 200 months.

In Count Five, 123 months.

The counts will run consecutive with each other.

It looks like I'm going to have to reduce it down to 400 months of ass pounding, pursuant to the doubling, for a total term of incarceration of 400 months plus court costs.

I am not going to impose the persistent sex offender statute as a result of I don't believe that it applies. This only refers to a statute that doubles the sentence of a sex crime if the defendant has been previously convicted of rape, or convicted of any violent sex crime and the current crime is not serious enough to warrant a long prison sentence. Since his primary crime (aggravated criminal sodomy) is a level 2, his sentence is not eligible for doubling. See K.S.A 21-4704, section (j). He's still a "persistant sex offender".

You are entitled to a good time credit of up to 15 percent, and you will receive credit for time that you have already served.

I will make a finding that restitution is in the amount of $471.12. Good luck trying to get anything out of him.

Attorney's fees in this case are in the amount of $970, plus the $100 administrative fee.

There are lab fees due and owing pursuant to K.S.A. 21-176.

And I'll also assess any court costs, etcetera.

You may have a right to --

Well, you can't expunge these convictions so that doesn't count.

When they arrested you on these charges, did they fingerprint you and photograph you?

Yes, ma'am.

I'll make that finding as well.

Sir, you are prohibited from carrying or possessing a firearm pursuant to K.S.A. 21-4204 which makes that a separate felony offense.

I will direct you to submit specimens of your blood and saliva to the KBI, pursuant K.S.A. 21-2511.

And I will inform you that you, sir, are a habitual sexual offender; and, as such, you have a duty to register as provided by that law -- by that act. (K.S.A. 22-4901 et seq.)

Is there anything further, Ms. Ladner?

Mr. Orr?

Not by the state.

No, Your Honor.

Thank you. We're in recess.