State v. Frecks, 105,952.

• Decision Date: 13 July 2012
• Docket Number: No. 105,952.,105,952.
• Citation: 280 P.3d 217,294 Kan. 738
• Parties: STATE of Kansas, Appellee, v. Mark FRECKS, Appellant.
• Court: Kansas Supreme Court

294 Kan. 738

280 P.3d 217

STATE of Kansas, Appellee,

v.Mark FRECKS, Appellant.

No. 105,952.

Supreme Court of Kansas.

July 13, 2012.

Syllabus by the Court

1. This court has jurisdiction to consider whether the district court abused its discretion in imposing consecutive life sentences pursuant to K.S.A. 21–4643.

2. While it is certainly the better practice to include an explanation of its reasons when the district court imposes consecutive life sentences, a sentencing judge's failure to give a lengthy colloquy does not amount to an abuse of discretion.

Joanna Labastida, of Kansas Appellate Defender Office, was on the brief for appellant.

Sheryl L. Lidtke, deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by ROSEN, J.:

Mark Frecks pleaded guilty to two counts of off-grid aggravated indecent liberties with a child, pursuant to a plea agreement in which the State agreed to dismiss a third count and stand silent at sentencing. Frecks asked that the Jessica's Law life sentences with 25–year mandatory minimums run concurrently, but the district court judge imposed two consecutive life sentences with no possibility of parole for 50 years. We first consider whether this court has jurisdiction to review the imposition of consecutive life sentences for the aggravated indecent liberties. Because this court has jurisdiction, we review whether the district court abused its discretion in imposing consecutive life sentences in this case.

Factual Background

On November 26, 2009, Mark Frecks engaged in the lewd fondling and touching of K.C., a child under the age of 14, with the intent to arouse himself. In February of 2010, Frecks engaged in similar acts with D.K., a child under the age of 14. Both victims were cousins of Frecks. On November 2, 2010, Frecks entered a guilty plea to two counts of aggravated indecent liberties. Pursuant to the plea agreement, the State dismissed a third count of aggravated indecent liberties against a third child, which alleged similar conduct.

At sentencing, Frecks requested that the sentences run concurrently. The State was silent regarding the recommendation for sentence, as provided in the plea agreement. The victims' parents made statements to the court regarding the impact of the crimes on their children. The court imposed two consecutive life sentences without possibility of parole, for a total of 50 years.

Did the District Court Abuse Its Discretion When It Ordered Frecks to Serve Consecutive Sentences?

Frecks argues that the district court abused its discretion by ordering that the sentences run consecutively. The State urges this court to follow State v. Ware, 262 Kan. 180, Syl. ¶ 4, 938 P.2d 197 (1997), and State v. Flores, 268 Kan. 657, 999 P.2d 919 (2000), and hold that this court is without jurisdiction to consider this issue. If this court has jurisdiction, the State argues that the district court did not abuse its discretion.

Jurisdiction

Generally, consecutive sentences imposed under the Kansas Sentencing Guidelines are presumptive sentences which are not subject to review by this court. This court conducts a de novo review of the governing statutes to determine whether this court has jurisdiction to consider an issue. State v. Ortega–Cadelan, 287 Kan. 157, 163, 194 P.3d 1195 (2008).

The State acknowledges that this court held that it had jurisdiction to consider whether the trial court abused its discretion in denying a criminal defendant's motion to depart from the life sentence with a 25–year mandatory minimum imposed pursuant to K.S.A. 2006 Supp. 21–4643(a) in Ortega–Cadelan, 287 Kan. at 164, 194 P.3d 1195. In Ortega–Cadelan, this court held that such a life sentence was not a presumptive sentence within the meaning of K.S.A. 21–4721(c)(1) and was, therefore, reviewable by the appellate courts. The court explained it this way:

“The Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq., defines a defendant's right to appeal from his or her sentence and, as applicable to this issue, provides that ‘the appellate court shall not review: (1) Any sentence that is within the presumptive sentence for the crime.’ K.S.A. 21–4721(c)(1). The KSGA defines ‘presumptive sentence’ as ‘the sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the current crime of conviction and the offender's criminal history.’ K.S.A. 21–4703(q). Ortega–Cadelan's sentence does not meet the K.S.A. 21–4703 definition of ‘presumptive sentence,’ as his sentence was not issued pursuant to a number in a grid block. Under the circumstances of this case, the KSGA grid was inapplicable. Moreover, K.S.A. 2006 Supp. 21–4706(d) characterizes Ortega–Cadelan's offense as an ‘off-grid [crime] for the purposes of sentencing.’ Thus, the State's jurisdictional argument is misguided; we hold that this court has jurisdiction to review a sentence imposed pursuant to K.S.A. 2006 Supp. 21–4643(a).” 287 Kan. at 163–64, 194 P.3d 1195.

Without addressing the jurisdiction question, this court has reviewed consecutive life sentences imposed for other off-grid crimes. In State v. Vanderveen, 259 Kan. 836, 843, 915 P.2d 57 (1996), the court held that the trial court did not abuse its discretion in imposing consecutive life sentences for two counts of first-degree premeditated murder. This court recently reviewed the imposition of consecutive life sentences that resulted from felony-murder convictions in State v. Morris, No. 102,051, –––Kan.App.2d ––––, 2010 WL 2816241 (Kan.2010) (unpublished opinion). In Morris, the court stated that “[t]his court has jurisdiction under K.S.A. 22–3601(b)(1) (conviction for an off-grid crime; life sentence).” 2010 WL 2816241, at *2.

Certain of our cases holding that this court has no jurisdiction to review consecutive sentences have included one off-grid life sentence among the sentences run consecutively. In Ware, the court held that it did not have jurisdiction to review the defendant's consecutive sentences of life (for felony murder) and 49 months (for aggravated robbery). 262 Kan. at 184, 938 P.2d 197. Similarly, in Flores, the court held that it did not have jurisdiction to review the defendant's consecutive sentences of life (for felony murder) and 34 months (for attempted voluntary manslaughter). 268 Kan. at 658, 660, 999 P.2d 919; see also State v. Jacobs, 293 Kan. 465, 466, 263 P.3d 790 (2011) (in context of rejecting appellate jurisdiction over consecutive combination of grid sentence and sentence arrived at after departure from Jessica's Law mandatory minimum, Jessica's Law sentence described as “presumptive”); State v. Whetstone, No. 104,413, –––Kan.App.2d ––––, 2012 WL 1253204 (Kan.2012) (unpublished opinion) (same). The State's reliance on these combination cases is misplaced here, because the only consecutive sentences under review in this case are off-grid life sentences.

Here, Frecks was sentenced to two life sentences pursuant to K.S.A. 21–4643(a). Like the crimes considered in Ortega–Cadelan, both of Frecks' convictions are for off-grid offenses. Following Ortega–Cadelan, this court has jurisdiction to consider whether the district court abused its...