State of Kansas, Appellee, v. Bernard Joseph Linnebur, Appellant. (2026)

MEMORANDUM OPINION

Bernard Linnebur pleaded guilty to one count of rape of a child under the age of 14—a crime that carries a presumptive sentence of life imprisonment without the possibility of parole for 25 years. Linnebur moved for a durational departure sentence, seeking a shorter prison term, but the district court denied this request. He now appeals, asserting that the court abused its discretion when denying his motion. After carefully reviewing the parties’ arguments and the record of the previous proceedings, we find no error by the district court and affirm its judgment.

Factual and Procedural Background

This case arises out of the sexual assault of the 13-year-old daughter of Linnebur's girlfriend. In June 2024, the State charged Linnebur with four counts of rape of a child under the age of 14, three counts of aggravated indecent liberties with a child, and one count of aggravated criminal sodomy.

In November 2024, Linnebur pleaded guilty to one count of rape of a child under 14 years of age, an off-grid person felony. In exchange for his plea, the State dismissed the remaining charges and recommended sentencing under K.S.A. 21-6627(a)(1)(B)— known as Jessica's Law—for life imprisonment with a minimum of 25 years without parole. The plea agreement also allowed Linnebur to seek a sentencing departure, and the State retained the right to oppose any motions.

In July 2024, Linnebur was granted bond under the special conditions that he have no contact with the victim or any person under 18 years of age and have GPS tracking with community service officer supervision. Within two months, the State moved to revoke Linnebur's bond after discovering he was living with his two minor children.

At the time of the offense giving rise to his plea, Linnebur was in an open relationship with his wife and dating the victim's mother, which allowed him access to the victim in a familial role much like that of his biological daughter. Linnebur's biological daughter was also 13 years old. Due to the special relationship between Linnebur and the victim, the age of the victim, and the circumstances of the crime, the district court expressed that Linnebur's contact with his biological children was an “egregious violation” of the conditions. The district court revoked Linnebur's existing bond and set a new bond with an increased amount and the same terms and conditions.

Linnebur moved for a downward durational departure before sentencing, requesting a sentence using the Kansas Sentencing Guidelines. Linnebur argued that his waiver of a preliminary hearing (which prevented the victim from having to testify) and quick acceptance of a plea deal showed that he knew his actions were wrong. He presented a psychological evaluation that showed an “exceptionally low risk to re-offend.” And he pointed to his history of severe clinical depression as a contributing factor in his actions, claiming the depression led him to believe the victim could give consent. He argued that his actions were on the fringes of the protections intended under Jessica's Law (since the victim was 13 years old and not younger) and asserted that his actions were not so egregious as to justify the off-grid sentencing within the statute.

At the sentencing hearing, Linnebur called his wife and mother as witnesses. His wife described him as kind and compassionate. She discussed how Linnebur cared for his mother and grandmother and how he had described his interest in taking responsibility for his actions so he can get back to being a good citizen, father, and husband. Linnebur's mother also discussed how Linnebur cared for her, her mother, and his biological children.

The State opposed the motion and presented testimony from the victim's grandmother and father, who both asked that the court deny the request for durational departure. The victim's grandmother spoke about the harm that Linnebur's actions had inflicted on her granddaughter and their family and expressed that the victim would have to live with this experience for the rest of her life. The victim's father said that Linnebur should not be out in society and that being a good person does not override Linnebur's actions. He discussed his daughter's decline in personality, grades, and general wellbeing. He continued by discussing his own clinical depression, expressing his belief that depression was not an excuse for Linnebur's behavior.

Linnebur also read a letter, apologizing to the victim and her family. He said that his mental health led him to believe he could be in an “adult relationship” with a child. He referred to the victim as his friend, discussing how he had only wanted to support her and be there for her. He added that the victim had confided in him that she was being mistreated at her father's house and that she had expressed a desire to harm herself. He shared that his behavior came from a fear that she would attempt suicide saying, “I don't want to victim shame here ․ It was my fear that she would do something dramatic.” In the letter, Linnebur detailed the ways that he had helped the victim's mother at work as well as how he had helped the victim's brother get a job. He described his relationship with the victim as “[trying] to show her compassion and love,” ultimately stating that he “[does] not regret showing her that compassion.” He closed by expressing regret for being inappropriate with the victim and asked the court to show mercy.

The district court denied Linnebur's motion for departure and sentenced him to life imprisonment without parole for 25 years. Linnebur appeals.

Discussion

Jessica's Law provides a presumptive hard 25 sentence—lifetime imprisonment without the possibility of parole for 25 years—for a defendant who is 18 or older and convicted of certain sex offenses involving young children. K.S.A. 21-6627(a)(1). When the conviction is the defendant's first conviction for an offense listed in section (a)(1), K.S.A. 21-6627(d)(1) grants the district court the discretion to instead sentence the defendant under the Kansas Sentencing Guidelines Act if the court “finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” K.S.A. 21-6627(d)(1).

Appellate courts review a district court's determination on whether to grant a departure sentence in a Jessica's Law case for an abuse of discretion. State v. Jolly, 301 Kan. 313, 325, 342 P.3d 935 (2015). “ ‘A district court abuses its discretion when: (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.’ ” 301 Kan. at 325.

Generally, this court will not disturb the district court's denial of a departure sentence when it follows the correct legal analysis. But a court abuses its discretion when it deviates from the required legal framework or fails to properly consider statutory limitations. State v. Powell, 308 Kan. 895, 903, 425 P.3d 309 (2018). The party alleging an abuse of discretion bears the burden of proving it. 308 Kan. at 910-11. Appellate courts do not 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).

Linnebur does not argue the district court's decision was an error of law or fact; he argues that the decision was unreasonable given his acceptance of responsibility for the crime, his lack of criminal history, his low likelihood of reoffending, and the services he provided to his family. But the Kansas Supreme Court considered similar arguments in State v. Spencer, 291 Kan. 796, 814, 248 P.3d 256 (2011), and concluded that those claims did not warrant a departure. We reach the same conclusion here.

In Spencer, the defendant pleaded guilty to two counts of aggravated indecent liberties with children in exchange for the State to stand silent at sentencing. The victims in this case had a familial relationship with the defendant. The defendant moved for departure, citing acceptance of responsibility, a lack of previous criminal history, his age (76 years old), and support from family. Many of the defendant's friends and family testified that he was a good person who was employed and that he cared for his ailing wife. The district court granted a departure to the sentencing grid from the presumptive sentence under Jessica's Law. But on appeal, the Kansas Supreme Court considered the factors cited and did not find them substantial and compelling. 291 Kan. at 813-15. The Supreme Court vacated the district court's departure. 291 Kan. at 816.

The facts here are similar to those considered by the court in Spencer, and like the Supreme Court, the district court here did not find Linnebur's arguments compelling. We do not find this decision to be unreasonable. The legislature has chosen to assign severe punishment to convictions such as Linnebur's. And despite Linnebur's assertions that he was taking responsibility and was unlikely to reoffend, the district court was aware of several matters calling that assertion into question. Linnebur's plea deal resulted in the dismissal of several other Jessica's Law offenses. Linnebur continued to be in contact with children under 18 in direct violation of his bond conditions. And although Linnebur's letter to the court at sentencing showed remorse for having been convicted of his crimes, it also demonstrated, in our view, an effort to rationalize his conduct. On this record, we cannot say that the district court abused its discretion in denying Linnebur's request for a departure sentence.

We affirm the district court's judgment.

Affirmed.

Per Curiam: