photo by: Sara Shepherd

BJ Lauri appears during a hearing in Douglas County District Court on Tuesday, June 25, 2019.

As he prepared to be sentenced Thursday in Douglas County District Court, convicted sex offender BJ Lauri said he had “been a knucklehead” for a long time now.

He wanted to resolve the pending case, do his time and move on with his life, he told the judge.

“I feel like I didn’t rape that girl,” Lauri said. “A lot of bad things happened that night.”

But when the judge said he was not inclined to grant a shortened sentence that the defense and prosecution had agreed upon, Lauri decided instead that he wanted to try to withdraw his plea. If the judge allows him to do so, the case could virtually go back to square one.

Plea agreement

Initially, Lauri was charged with three level-one person felonies, including rape, aggravated criminal sodomy and aggravated human trafficking, and four less severe offenses. But he pleaded no contest to, and was convicted of, two lesser crimes: kidnapping, a level-three person felony, and aggravated sexual battery, a level-five person felony.

Lauri, 45, and another man were arrested Jan. 19, after Lawrence police responded to a report of suspicious activity in progress around 6:30 a.m. at Hy-Vee, 4000 W. Sixth St.

photo by: Douglas County Sheriff’s Office

BJ Lauri

A woman there was asking for help from a store employee, who called police, Sgt. Amy Rhoads previously told the Journal-World. The woman, 38 at the time, reported to police that she’d been held against her will and that, during that time, “a series of alleged criminal events took place.”

The Journal-World has limited information about the alleged crimes. The newspaper requested the police affidavit supporting Lauri’s arrest, but the judge ruled that releasing it prior to a preliminary hearing in the case, which was set for April, would unnecessarily jeopardize the alleged victim’s mental or emotional well-being. A follow-up request after Lauri and his co-defendant waived their rights to preliminary hearings was not acted on.

Defense attorney Branden Smith and prosecutor Alice Walker both said in court Thursday that they wanted to avoid a preliminary hearing and trial. Walker said the state didn’t want to force the alleged victim to recount what happened as it had been described in the affidavit; if called to testify, the woman could be retraumatized. Smith also said he and his client wanted to avoid the risk of a jury trial.

So, Smith explained in court, he and Walker had both looked at the strengths and weaknesses of their cases and came to the determination that a plea was the best option. There was give-and-take on both sides, he said, and they had settled on 117 months, or nine years and nine months, in prison.

Then, what Smith described in court as a legal “snafu” complicated things. But “in the spirit of resolving the case,” Smith said, the prosecution would not object to the downward departure that would shorten Lauri’s sentence by more than two years from the maximum 145 months he could receive.

Substantial and compelling?

In Kansas, sentencing is based on a combination of the severity of the conviction and the defendant’s criminal history. The latter is determined through a presentence investigation, or PSI.

Kansas law dictates that judges must follow presumptive sentencing guidelines unless “substantial and compelling” reasons exist to depart. Departures can be durational — lengthening or shortening the sentence, as counsel requested in Lauri’s case — or dispositional, such as sentencing to probation rather than prison time, or vice versa.

In addition, judges are not bound by plea agreements. Although they often consider the recommendations of counsel, judges rule as they see fit when they take all the facts of the case into account. They can also require sentences to be served consecutively rather than concurrently.

Lauri is a registered sex offender — on the Kansas registry since 2017 — who previously spent 10 years in prison for abusing a 7-year-old girl in Missouri. He was arrested in 2004 and convicted in 2005 in Springfield, Mo., for first-degree statutory sodomy of the girl, according to Missouri court records. That conviction followed a plea deal in which an additional charge was dropped.

He also has a “potential person felony” out of Louisiana, according to documents filed in his Lawrence case. However, the PSI found that neither of his previous convictions counted as person felonies in Kansas.

Based on the PSI, Lauri was given a criminal history score of F, meaning he had previously been convicted of two nonperson felonies. Based on that score and the prescribed sentences for kidnapping and aggravated sexual battery, Smith and Walker anticipated that Lauri would receive a sentence of 117 months.

However, according to a motion filed in the case, on the evening prior to the plea hearing held in May, Smith looked over special rules that impact sentences and found that rule No. 5, pertaining to persistent sex offenders, would apply in Lauri’s case. That rule mandates that the sentence for a subsequent sex crime conviction be double the presumptive maximum.

Smith and Walker had both missed the special rule, since Lauri’s Missouri conviction was scored as a nonperson felony in Kansas, the motion explains.

That conviction, as the basis of the rule’s application, would no longer count toward Lauri’s criminal history score; thus it was lowered to category G, indicating he’d been convicted of one nonperson felony in the past. But the maximum sentence would still increase.

“The defendant’s sentence would now be between 136 and 145 months – 19 to 28 more months than the 117 months that the parties agreed upon,” Smith wrote in a motion for departure. “… The defendant asks that this Court find that this is an appropriate case for departure based upon the plea agreement in this case, standing alone or combined with his taking responsibility.”

But Douglas County District Court Judge James McCabria said it would take a lot to persuade him of a substantial and compelling reason to depart from the sentencing guidelines, in the face of the “heinous acts” alleged in the affidavit — acts for which Lauri has shown no remorse, the judge said.

McCabria said he worried he would be creating the wrong incentive for counsel to negotiate. He did not see the plea agreement as reason enough for departure. Even if this particular set of circumstances never repeats itself, McCabria said he did not want to set a precedent that opens the door for people to cut deals if one or both parties miss a special rule.

“I am very reluctant to let the negotiations of counsel control what this court will do,” McCabria said.

Smith said in court that it was unlikely that the state would offer a similar agreement again, and that he and Walker “probably won’t get where we got before.”

Ultimately, McCabria said that if he was asked to make a ruling on Thursday, he was not going to follow the plea recommendation. He said he thought it was fair to allow Lauri the opportunity to consider moving to withdraw his plea.

Lauri told Smith he did want to reconsider, and Smith said he’d file a motion to do so by Sept. 23. The hearing for the judge to consider the motion is set for Oct. 16.

Co-defendant granted pretrial release

Lauri’s co-defendant, John Brown, has been cooperating with prosecutors in his case, the Journal-World has reported. He is charged with kidnapping, a felony, as well as unlawful administration of a substance and battery, misdemeanors.

photo by: Douglas County Sheriff’s Office

John W. Brown

During a hearing in Brown’s case Friday in Douglas County District Court, defense attorney Hatem Chahine said Brown had previously been on pretrial release but it was revoked because Brown had failed drug tests.

Since then, Chahine told the judge, Brown has completed inpatient treatment. He would be able to reside in a sober living environment, attend Narcotics Anonymous meetings and do outpatient treatment programs if he could be given pretrial release once again.

The judge asked Brown how confident he was that he could stay sober.

“I’m 51 years old; I’m done with all this,” Brown said. “… I feel more healthy. I just feel better about myself now that I’ve been clean 156 days now.”

After confirming that Brown had no prior person misdemeanors or felonies in his criminal history, McCabria granted the request with some conditions that weren’t discussed in court.

Brown’s bond is set at $50,000, and his next court appearance is set for Oct. 25.