State v. Wyatt

NOT DESIGNATED FOR PUBLICATION No. 127,706 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. AUSTIN M. WYATT, Appellant. MEMORANDUM OPINION Appeal from Reno District Court; DANIEL D. GILLIGAN, judge. Submitted without oral argument. Opinion filed October 30, 2026. Affirmed. Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant. Kimberly A. Rodebaugh, senior assistant district attorney, Thomas R. Stanton, district attorney, and Kris W. Kobach, attorney general, for appellee. Before COBLE, P.J., BRUNS and ISHERWOOD, JJ. PER CURIAM: Austin M. Wyatt appeals his sentence after pleading guilty to a single count of aggravated indecent liberties with a child. Before sentencing, Wyatt unsuccessfully moved for a durational departure from his statutorily mandated sentence. After it was discovered that a recording malfunction made it impossible to obtain a transcript of the sentencing hearing, this court remanded the case to the district court under Supreme Court Rule 3.04 (2026 Kan. S. Ct. R. at 24). On remand, the parties agreed to—and the district court approved—a summary of the proceedings in lieu of a transcript. Finding the summary of the sentencing hearing agreed upon by the parties to be sufficient to allow meaningful review, we affirm Wyatt's sentence. 1  FACTS In October 2022, the State charged Wyatt with aggravated indecent liberties with a five-year-old child. In June 2023, Wyatt entered a plea of guilty to the charge and filed a notice of his right to remain silent during the presentence investigation. In his filing, Wyatt explained that he intended not to provide any information regarding his "criminal history or such facts that would aid in the detection of such criminal history." A presentence investigation (PSI) report was completed on August 25, 2023. The PSI report showed that Wyatt's criminal history score was G. This score stemmed from convictions that Wyatt received in 2021 for possession of methamphetamine, possession of drug paraphernalia, and driving under the influence. Prior to sentencing, Wyatt filed a motion for durational departure. In his motion, Wyatt's attorney argued that a durational departure was appropriate for the following reasons: "1. Mr. Wyatt accepted responsibility by entering a plea very early on in the case process. "2. Mr. Wyatt self-reported and gave a detailed statement of his actions to law enforcement. "3. Mr. Wyatt underwent a psychosexual evaluation with a licensed professional (Seth Wescott, Licensed Masters Level Psychologist) and the results indicate: a. Mr. Wyatt suffers from both depression and anxiety. b. Mr. Wyatt's results on the Sex Offender Accountability and Responsibility Scales indicates that he is able to take responsibility for his behaviors. c. Mr. Wyatt did not attempt to blame the victim for his behavior. d. Mr. Wyatt scored 7 out of 10 on the Adverse Childhood Experience questionnaire[.] i. Mr. Wyatt reports both physical and sexual abuse by adults when he was a child[.] e. Mr. Wyatt appears to be of low average intelligence. f. Mr. Wyatt has a substance abuse problem. 2  g. Mr. Wyatt turned himself in because he wants to take accountability for his actions, accept punishment, and make amends. h. '. . . a lengthier prison sentence does not mitigate risk, but treatment, when tailored to an individual's specific needs, does have an impact on risk for recidivism.' "4. Mr. Wyatt is willing to engage in any kind of treatment recommended, including substance abuse treatment, mental health treatment, and sexual offender treatment." At the sentencing hearing, the district court denied Wyatt's motion for a durational departure and sentenced him to the mandated sentence of life imprisonment with no possibility of parole for 25 years. Following the hearing, the district court entered a journal entry—signed by the parties—which journalized both the denial of the motion for durational departure and the sentence imposed at the hearing. After Wyatt filed a timely notice of appeal, the parties learned that a transcript of the sentencing hearing was unavailable due to a malfunction of the recording device. As a result, Wyatt moved to remand this case to the district court to reconstruct the record. We granted the motion and remanded this case to the district court for reconstruction as provided in Supreme Court Rule 3.04. On remand, the parties completed an agreed-upon summary of the sentencing hearing that was approved by the district court. The summary provided: "The Court inquired of the parties whether they had received the Presentence Investigation (PSI) Report and the parties stated they had. The Court asked the State if they had any objection to the criminal history score of 'G' and the State did not. The Court inquired if the defendant had any objection to the criminal history score and the defendant declined to acknowledge his criminal history. The Court then noted there was no objection to the PSI and found that the unchallenged PSI satisfied the burden required regarding criminal history and found that the defendant was a criminal history category 'G.' 3  "The Court then considered the defendant's written motion for departure as well as arguments made by counsel to evaluate the defendant's request for departure. After considering the written motion and arguments, the Court found no substantial or compelling reasons existed to depart from the hard 25-year sentence mandated. "The Court then imposed a lifetime sentence with a mandatory minimum of 25 years; ordered lifetime post-release and for the defendant to register as a sex offender for life. The Court ordered this sentence to run concurrently with the defendant's other case. The Court waived the BIDS fees and other costs associated with the case." This appeal now returns to us on Wyatt's request that we vacate his sentence and remand this case for a new sentencing hearing. ANALYSIS On appeal, Wyatt contends that meaningful review is impossible and, as a result, his right to due process was violated. He argues that he is entitled to a new sentencing hearing in which the record is adequately preserved. In response, the State contends that the district court appropriately complied with the order of this court on remand. In particular, the State argues that the summary of what occurred at the sentencing hearing was agreed to by the parties pursuant to Supreme Court Rule 3.04. Moreover, the State argues that Wyatt's right to due process was not violated because the reconstructed record reflects that the district court "found no substantial or compelling reasons existed to depart from the hard-25 sentence mandated." At the outset, we find that Wyatt properly challenges his sentence in this direct appeal. See State v. Goens, 317 Kan. 616, 619-20, 535 P.3d 1116 (2023) (holding appellate courts can review sentences for off-grid crimes, which are not presumptive under the Kansas Sentencing Guidelines); State v. Chavez, 292 Kan. 464, 465, 254 P.3d 539 (2011) ("Life sentences for off-grid crimes are not 'presumptive sentences' within the 4 meaning of the sentencing guidelines and therefore are not subject to the jurisdictional bar of [the predecessor statute to K.S.A. 21-4721(c)(1)]."). As to preservation, Wyatt candidly concedes that he did not raise his due process argument in the district court. Generally, issues and arguments not raised before the district court cannot be raised on appeal. State v. Gatewood, 321 Kan. 564, 574, 582 P.3d 534 (2026). But we have discretion to consider a new issue or argument for the first time on appeal if—among other things—it is necessary to serve the ends of justice or to prevent the denial of fundamental rights. State v. Allen, 314 Kan. 280, 283, 497 P.3d 566 (2021). Because this issue implicates the length of Wyatt's prison sentence, we find reviewing this argument would serve the ends of justice. It is undisputed that Wyatt's conviction invokes the provisions of "Jessica's Law," and—in the absence of a showing of substantial and compelling reasons to depart— K.S.A. 21-6627(a)(1) mandates lifetime imprisonment without the possibility of parole for 25 years. When, as here, the conviction is a defendant's first conviction for an offense subject to the statutorily mandated sentence, K.S.A. 21-6627(d)(1) grants the district court the discretion to depart if it "finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure." We will generally uphold a district court's denial of a motion to depart if it followed the correct legal analysis. State v. Powell, 308 Kan. 895, 903, 425 P.3d 309 (2018). Likewise, the party alleging an abuse of discretion—in this case Wyatt—bears the burden of proving the abuse occurred. 308 Kan. at 910. In reviewing a district court's denial of a departure motion, we are not to reweigh the evidence, assess the credibility of the witnesses, or resolve evidentiary conflicts. State v. Reed, 300 Kan. 494, 499, 332 P.3d 172 (2014). 5  Significant to this appeal, a district court is not required to explain its decision if it determines that there have not been substantial and compelling reasons shown to impose a departure sentence. See Powell, 308 Kan. at 908; see also State v. Dull, 298 Kan. 832, 841-42, 317 P.3d 104 (2014) (Nor is the court required to make findings or state its reasons when denying a request for departure from the mandatory minimum under Jessica's Law.). Moreover, a district court only abuses its discretion if it is shown that "'(1) no reasonable person would take the view adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based.'" State v. Jolly, 301 Kan. 313, 325, 342 P.3d 935 (2015). Although Wyatt acknowledges these general rules relating to our review of the district court's denial of his motion for durational departure, he asks us to employ a de novo standard of review on his due process argument. "Whether due process has been afforded presents a question of law over which an appellate court has unlimited review." Washington v. Roberts, 37 Kan. App. 2d 237, 240, 152 P.3d 660 (2007). Consequently, we agree that our review of Wyatt's due process argument is unlimited. The order remanding this case to the district court directed that a statement of the proceedings be prepared as provided in Supreme Court Rule 3.04(a) (2026 Kan. S. Ct. R. at 24), which states: "If the transcript of a hearing or trial is unavailable, a party to an appeal may prepare a statement of the evidence or proceedings from the best available means, including the party's own recollection, for use instead of a transcript. The statement must be served on all parties, who may serve an objection or proposed amendment no later than 14 days after being served. The statement and any objection or proposed amendment then must be submitted to the district court for settlement and approval. As settled and approved, the statement must be included by the clerk of the district court in the record on appeal." 6  Here, the parties followed this procedure and prepared an agreed summary of the sentence hearing. Furthermore, the summary of the proceedings was approved by the district court. Still, Wyatt suggests that the use of the procedure failed to provide him with due process. As a practical matter, Wyatt devotes much of his brief to pointing out why the Kansas Supreme Court should amend Rule 3.04(a). Of course, our court has no authority to modify the rules established by our Supreme Court. See K.S.A. 20-160 (granting Kansas Supreme Court authority to "govern the reproduction, preservation, storage and destruction of court records of this state"); K.S.A. 20-3001 (limiting Court of Appeals judicial power as being "subject to the general administrative authority of the supreme court"); Supreme Court Rule 1.01(d) (2026 Kan. S. Ct. R. at 1) (stating that Rules of the Kansas Supreme Court apply in both Kansas Court of Appeals and Supreme Court proceedings). Certainly, having a sufficient record to allow for meaningful review of issues and arguments presented on appeal is imperative. It is also important that district courts keep recording equipment—to the best of their ability—in working condition so that malfunctions do not interfere with the ability to keep accurate transcripts or recordings. In his brief, Wyatt points out other instances where the district court's equipment failed to properly record a hearing. Consequently, it would be appropriate for the district court to review its procedures to prevent these types of problems from arising in the future. As our Supreme Court has held, a defendant has "a due process right to reasonably accurate trial transcripts, and a defendant may be entitled to a new trial if manifestly incomplete or inaccurate transcripts preclude meaningful appellate review." State v. Frantz, 316 Kan. 708, 743-44, 521 P.3d 1113 (2022). At the same time, it is important to recognize that "[a] defendant does not have a constitutionally protected right to a totally accurate transcript of the criminal proceedings." State v. Holt, 298 Kan. 531, 538, 314 P.3d 870 (2013). When defendants argue that "inaccurate or incomplete transcripts" violate their due process right, they "'must make the best feasible showing possible that a 7 complete and accurate transcript might have changed the outcome of the appeal.'" Frantz, 316 Kan. at 744. Here, the summary of the sentencing hearing agreed upon by Wyatt and the State is the best available means to us. Based on our review of the summary in light of the other documents contained in the record on appeal, we find that we have adequate information on which to complete meaningful appellate review. In Holt, the defendant was convicted of aggravated indecent liberties with a child. On appeal, the parties learned that due to a recording malfunction, there was no transcript of a critical pretrial motion hearing. One of those motions argued at the hearing was a request that an independent psychological evaluation of the alleged victim be ordered. 298 Kan. at 535-36. Although the Kansas Supreme Court issued an order under Supreme Court Rule 3.04(a), the parties "had little in the way of specific memories of what they argued" at the pretrial motion hearing. 298 Kan. at 536. Because a statement or summary of the proceedings was not available, our Supreme Court reversed the defendant's conviction and remanded the case for a new trial. 298 Kan. at 538-39. Unlike Holt, Wyatt does not allege that the parties could not remember pertinent information from the sentencing hearing. In addition, there is no allegation that Wyatt objected to the agreed summary prepared by the parties under Supreme Court Rule 3.04(a). Based on the current record, we know the arguments that Wyatt presented in his motion for durational departure. We also know from the agreed summary that the district court "considered [Wyatt's] written motion for departure as well as arguments made by counsel" in support of those arguments. Ultimately, the district "[c]ourt found no substantial or compelling reasons existed to depart from the hard 25-year sentence mandated" by K.S.A. 21-6627(a)(1). We find the present case to be more akin to State v. Hoyt, No. 124,845, 2023 WL 7982713 (Kan. App. 2023) (unpublished opinion). In Hoyt, the district court denied the defendant's request for a durational departure at a sentencing hearing and imposed a 8 presumptive sentence. On appeal, the defendant argued that his due process rights were violated because there was no transcript of his sentencing hearing. 2023 WL 7982713, at *2-3. As was done in this case, our court remanded the case to the district court under Supreme Court Rule 3.04(a). On remand, the parties in Hoyt agreed to a "'Statement of Proceedings,'" which the district court approved. 2023 WL 7982713, at *3. Although the parties were "'not able to recall the specifics of the sentencing hearing,'" our court found that the defendant had failed to establish a due process violation because "[h]aving a transcript of the sentencing hearing instead of the Statement of Proceedings . . . would not change the result of [Hoyt's] appeal." 2023 WL 7982713, at *4. Similar to Hoyt, we find that Wyatt has not established a due process violation in the case now before us on appeal. Specifically, we find that the agreed upon summary of the sentencing hearing provides us with sufficient information to allow for meaningful review. We also find that a more detailed summary would not have changed the outcome of the sentencing hearing. Frantz, 316 Kan. at 744. Turning to the district court's denial of Wyatt's motion for a durational departure, we find no abuse of discretion. We note that Wyatt does not argue on appeal that the district court's denial of his departure motion was based on a mistake of fact or an error of law. Moreover, based on our review of the record on appeal, we find that the district court did not abuse its discretion in denying the motion for durational departure or in imposing the statutorily mandated sentence under K.S.A. 21-6627(a)(1). In his motion for a durational departure, which is a part of the record on appeal, Wyatt suggested that there were substantial and compelling reasons to depart from the mandatory sentence. In particular, he claimed that he should be granted a departure sentence based on his acceptance of responsibility for the crime—the lewd fondling or 9 touching of a five-year-old child—by pleading guilty; his detailed statement admitting his actions; his relatively sparse criminal history—that included possession of methamphetamine and driving under the influence—his depression and anxiety; his claim that he was abused as a child; his low average intelligence; his substance abuse problem; his willingness to accept punishment; and his desire to undergo treatment. As addressed above, the summary of the sentencing hearing agreed to by the parties pursuant to Supreme Court Rule 3.04(a) states that the district court "considered the defendant's written motion for departure as well as arguments made by counsel" in concluding that "no substantial or compelling reasons existed to depart from the hard 25-year sentence mandated" by statute. We note that both the Kansas Supreme Court and our court have rejected similar reasons given by a defendant in an attempt to justify a departure from a mandatory sentence under K.S.A. 21-6627(a)(1). See, e.g., State v. Spencer, 291 Kan. 796, 815-16, 248 P.3d 256 (2011) (vacating the district court's grant of a departure sentence, finding no substantial and compelling reason for the departure where the defendant argued acceptance of responsibility, a lack of previous criminal history, his age, and support from family); State v. Linnebur, No. 128,737, 2026 WL 2546843, at *2-3 (Kan. App. 2026) (unpublished opinion) (applying Spencer and denying a similar claim), petition for rev. filed September 28, 2026. Here, the parties have come forward with an adequate record to establish that the district court followed the correct legal framework in considering Wyatt's motion for a durational departure sentence. See Powell, 308 Kan. at 903. The record sufficiently tells us the basis for Wyatt's motion, what the district court considered, and the district court's finding that there were no substantial or compelling reasons to depart. Although we understand Wyatt's frustration with the equipment malfunction that led to there being no transcript of his sentencing hearing, Wyatt has not established that the district court abused its discretion or acted outside the scope of reason in denying his motion for a 10 durational departure. He likewise shows no abuse of discretion in the imposition of the mandatory sentence under K.S.A. 21-6627(a)(1) after pleading guilty to aggravated indecent liberties with a five-year-old child. CONCLUSION In summary, we find that Wyatt fails to show that having a transcript of the sentencing hearing instead of the summary of the sentencing hearing agreed to by the parties and approved by the district court might have changed the result. We also find that the record on appeal—which includes the agreed upon summary of proceedings as authorized by Supreme Court Rule 3.04(a)—is sufficient to allow for meaningful review of the district court's denial of Wyatt's motion for a durational departure. As a result, we conclude that Wyatt's right to due process was not violated. Finally, we conclude that the district court applied the correct legal analysis and did not abuse its discretion in determining that there were no substantial and/or compelling reasons to grant a durational departure instead of the statutorily mandated sentence pursuant to K.S.A. 21-6627(a)(1). Furthermore, we find the district court was not required to make additional findings or to explain its reasons for denying the motion for durational departure. Accordingly, we affirm Wyatt's sentence. Affirmed. 11