State v. Jones

• Decision Date: 07 May 2021
• Docket Number: 567,122
• Court: Kansas Court of Appeals
• Parties: State of Kansas, Appellee, v. Donnithan Maurice Jones, Appellant.

State of Kansas, Appellee, v. Donnithan Maurice Jones, Appellant.

No. 122, 567

Court of Appeals of Kansas

May 7, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Geary District Court; Steven L. Hornbaker, judge.

James L. Latta, of Kansas Appellate Defender Office, for appellant.

Jason B. Oxford, assistant county attorney, Krista Blaisdell county attorney, and Derek Schmidt, attorney general, for appellee.

Before Hill, P.J., Bruns and Schroeder, JJ.

MEMORANDUM OPINION

PER CURIAM.

Donnithan Maurice Jones asks us to hold that the district court abused its discretion when it ordered him to consecutively serve his Offender Registration Act sentence with his heroin distribution sentence. Our review of the circumstances leads us to hold that the court did not abuse its discretion. We affirm the court's holding.

The details of the case history provide a context for our ruling. In his plea bargain with the State, Jones agreed to plead no contest to violating the Offender Registration Act. In return, the State agreed to recommend to the court that it should impose a durational departure sentence from 36 months' to 12 months' imprisonment. Before sentencing, citing K.S.A. 2019 Supp. 21-6819(a), Jones moved the court to find that imposing a consecutive sentence would create a manifest injustice. In his motion, Jones argued that he did not register his correct address because he was homeless. According to Jones, it should shock the court's conscience to impose a 36-month consecutive sentence for being homeless.

The court denied Jones' motion for a concurrent sentence, but did grant his motion for a durational departure sentence. The court imposed a 12-month prison sentence to be served consecutively to his sentence for distributing heroin.

To us Jones argues that the district court abused its discretion when it found that imposing a consecutive sentence is not manifest injustice. In our analysis, we first explain what we cannot do and then review what we can do.

We cannot review Jones' sentence.

The law limits our review of Jones' sentence. Under K.S.A. 2019 Supp. 21-6820(c)(2), an appellate court shall not review "any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record." Here, both parties agreed to a departure sentence of 12 months in prison. This means that we lack jurisdiction to consider the propriety of the 12-month sentence. But we will examine the question of manifest injustice because that is the question that is appealed and not a part of their agreement. But first we will review two sentencing statutes that come into play in this case.

The first is K.S.A. 2019 Supp. 21-6606(c). It directs that if a defendant commits a crime while on probation for a previous felony conviction, the resulting sentence for the new crime shall be served consecutively. Because Jones was on probation for distributing heroin when he committed this crime, that statute required the district court to order that his new sentence be served consecutively to the sentence in his prior case. The second statute provides an escape hatch in limited cases. K.S.A. 2019 Supp. 21-6819(a) allows a court to avoid the requirement of consecutive sentences for new crimes if the court finds that consecutive sentences would result in a manifest injustice. This means that if the court found that it would be an injustice to impose a consecutive sentence here, then it could impose a concurrent sentence, instead.

What is manifest injustice? Horizontal precedent teaches us that a sentence displays manifest injustice when the sentence "is obviously unfair and shocks the conscience of the court." Wilkinson v. State, 40 Kan.App.2d 741 742, 195 P.3d 278 (2008).

Our standard of review in a case in which the district court was asked to make a manifest injustice finding is whether the district court abused its discretion. State v Cramer, 17 Kan.App.2d 623, Syl. ¶ 5, 841 P.2d 1111 (1992). A judicial action constitutes an abuse of discretion if the action is

• arbitrary, fanciful, or unreasonable;

• based on an error of law; or

• based on an error of fact.

State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011).

The circumstances distinguish this case from a prior holding of our court.

We recognize that a panel of this court has held that appellate courts lack jurisdiction to review a district court's denial of a manifest injustice finding in...