Opinion
No. 111,070.
2015-01-30
STATE of Kansas, Appellee, v. Kelsi D. LITTELL, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.Michael Studtmann, of Wichita, for appellant.Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Michael Studtmann, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Kelsi D. Littell appeals her sentence following her conviction of one count of theft after prior conviction. Littell claims the district court erred by not running the sentence concurrent with the sentence in another case pursuant to the plea agreement. But because the district court imposed a presumptive sentence under the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A.2013 Supp. 21–6801 et seq. , this court lacks jurisdiction to consider the merits of Littell's claim.
On October 17, 2013, Littell pled guilty to a single count of theft after prior conviction, a severity level 9 nonperson felony, in Sedgwick County case 13CR2431. As part of her plea agreement with the State, the parties acknowledged that Littell was on felony probation in 11CR2470 and felony bond in 12CR2139 at the time the offense was committed. The parties jointly recommended that the district court impose a prison sentence in accordance with the low number in the designated gridbox and that the court order Littell's sentence in 13CR2431 to run consecutive to her sentence in 11CR2470 but concurrent with her sentence in 12CR2139.
On December 10, 2013, the district court imposed a sentence of 13 months' imprisonment—the low number in the designated gridbox—as the parties had requested. However, the district court declined to follow the parties' recommendation that Littell's sentence in 13CR2431 run concurrent with her sentence in 12CR2139. Instead, the district court ordered that Littell's sentence would run consecutive to her sentences in both 11CR2470 and 12CR2139. The district court stated no reason for not following all the provisions of the plea agreement. Littell timely appealed her sentence.
On appeal, Littell argues that the district court erred by running her sentence in 13CR2431 consecutive to her sentence in 12CR2139. She contends that under Kansas statutes, the district court may exercise its sound discretion to impose a concurrent sentence when a new crime is committed while the defendant was on felony bond in another case. Littell asserts that the district court was operating under the apparent belief that it had no discretion to order anything but a consecutive sentence. She asks this court to vacate her sentence and remand her case to the district court for resentencing.
The State responds by claiming that this court is without jurisdiction to review Littell's challenge to her presumptive sentence. Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014). To the extent that Littell's claim requires statutory interpretation, the interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).
Littell acknowledges that K.S.A.2013 Supp. 21–6606(d) provides that “[a]ny person who is convicted and sentenced for a crime committed while on release for a felony pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated, and amendments thereto, shall serve the sentence consecutively to the term or terms under which the person was released.” However, Littell points out that K.S.A.2013 Supp. 21–6819(a) provides that “the mandatory consecutive sentence requirements contained [in K.S.A.2013 Supp. 21–6606(d) ] shall not apply if such application would result in a manifest injustice.” According to Littell, K.S.A.2013 Supp. 21–6819(a) allows a district court to impose concurrent sentences even when a defendant commits a new offense while on felony bond in another case if the court makes a finding that the imposition of consecutive sentences would amount to manifest injustice.
The State does not respond to Littell's statutory argument. Rather, the State points out that this court is without jurisdiction to review Littell's challenge to her presumptive sentence. Under K.S.A.2013 Supp. 21–6820(c)(1), appellate courts lack jurisdiction to review challenges to presumptive sentences. Generally, consecutive presumptive sentences under the KSGA do not constitute sentencing departures and are not appealable. State v. Jacobs, 293 Kan. 465, 466, 263 P.3d 790 (2011). Littell received a prison sentence of 13 months, which is a presumptive sentence for a conviction of theft after prior conviction. Littell's controlling sentence was within the presumptive range, and thus, K.S.A.2013 Supp. 21–6820(c)(l) is applicable here.
An exception exists to the general rule that appellate courts lack jurisdiction to review challenges to presumptive sentences. In State v. Cisneros, 42 Kan.App.2d 376, 380, 212 P.3d 246 (2009), the defendant was before the district court at a probation violation hearing. The State raised the possibility of a reduced sentence and argued that the district court should impose the defendant's original sentence and “ ‘not a lesser sentence.’ “ 42 Kan.App.2d at 377. In response, the district judge stated, “ ‘When the suggestion was made earlier about a lesser sentence, I don't have the power to lower the 155 months that [the sentencing judge] gave. That is not within my power here.’ “ 42 Kan.App.2d at 377. The district court ultimately revoked the defendant's probation and ordered him to serve the original sentence.
On appeal, the defendant argued that the district court erred by refusing to impose a lesser sentence at the probation revocation hearing. In response, the State argued that this court lacked jurisdiction to consider the appeal because the defendant had received a presumptive sentence. This court noted that under K.S.A. 22–3716(b), upon a finding that the defendant has violated the terms of probation, the district court may require the defendant to serve the sentence imposed or any lesser sentence. 42 Kan.App.2d at 378. Even though the defendant had received a presumptive sentence, this court found that K.S.A. 21–4721(c)(1), now recodified at K.S.A.2013 Supp. 21–6820(c)(l), was not a jurisdictional bar to the defendant's appeal. 42 Kan.App.2d at 379. This court held that where the district court expressed a belief at the probation violation hearing that it had no power to reduce the term of the defendant's sentence, the case must be remanded to the district court to consider its authority under K.S.A. 22–3716(b). 42 Kan.App.2d at 380–81.
The “ Cisneros exception” does not apply to give this court jurisdiction over Littell's appeal. Here, the district court's remarks at Littell's sentencing hearing were brief. After reiterating the nature of Littell's crime and encouraging her to continue substance abuse treatment, the district judge announced his sentence:
“I find that it will be the judgment, order and sentence of the Court that you, Kelsi D. Littell, be taken by the Sheriff of Sedgwick County, Kansas, and by him delivered to the custody of the Secretary of Corrections to serve a term of 13 months. This sentence will run consecutively to the controlling sentence in the other two cases.”
Littell asserts that her sentencing judge “offered no explanation for imposing consecutive sentences in all three cases and therefore seemed to be bound to the belief that he did not have the legal authority to impose the sentence in any other manner.” But as the State points out, Littell is merely speculating that the district court was confused with respect to its discretion. In Cisneros, the district court expressly stated on the record that it had no power to reduce the term of the defendant's sentence. 42 Kan.App.2d at 377. Here, the district judge never indicated he lacked discretion to impose a concurrent sentence. The district court did not explain its decision to impose a consecutive sentence in Littell's case, but it was not required to do so. See State v. Huerta, 291 Kan. 831, 836, 247 P.3d 1043 (2011) (when court orders presumptive sentence, KSGA does not require court to state any particular findings on the record).
In sum, appellate courts lack jurisdiction to review challenges to presumptive sentences. K.S.A.2013 Supp. 21–6820(c)(1). Littell received a presumptive sentence and there is nothing in the record to establish that the district court did not understand its discretion to impose a concurrent sentence. Because Littell received a presumptive sentence under the KSGA, this court lacks jurisdiction to review her challenge to the presumptive sentence on appeal.
Appeal dismissed.