State v. Looney

• Decision Date: 20 June 2014
• Docket Number: No. 107,011.,107,011.
• Citation: 299 Kan. 903,327 P.3d 425
• Parties: STATE of Kansas, Appellee, v. Tyrone Lee LOONEY, Appellant.
• Court: Kansas Supreme Court

299 Kan. 903

327 P.3d 425

STATE of Kansas, Appellee,

v.Tyrone Lee LOONEY, Appellant.

No. 107,011.

Supreme Court of Kansas.

June 20, 2014.

Syllabus by the Court

1. Whether appellate jurisdiction exists is a question of law over which the scope of appellate review is unlimited.

2. Statutory interpretation and construction are subject to unlimited appellate review.

3. The fundamental rule of statutory interpretation to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. Statutory language is an appellate court's paramount consideration because the best and only safe rule for ascertaining the intention of the makers of any written law is to abide by the language they have used.

4. Unless a more specific provision divests an appellate court of jurisdiction, it has jurisdiction over the appeal of any departure sentence under the plain language of K.S.A. 21–4721(a) (2007).

5. Under the facts of this case, the Court of Appeals had jurisdiction to consider the defendant's appeal of his sentence under K.S.A. 21–4721(a) (2007).

6. K.S.A. 21–4721(c)(2) did not divest the Court of Appeals of jurisdiction because the sentence of imprisonment was not the result of an agreement between the defendant and the State.

Lydia Krebs, of Kansas Appellate Defender Office, was on the brief for appellant.

Jaskamal P. Dhillon, assistant county attorney, Natalie Randall, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

This case requires us to determine the appellate courts' authority to review certain criminal sentences under K.S.A. 21–4721 (2007). The district court denied Tyrone Lee Looney's motion for probation, i.e., for a downward dispositional departure from his presumptive sentence of 169 to 187 months' imprisonment. Instead, the court granted a downward durational departure to 72 months in prison. When Looney appealed the denial of probation, the Court of Appeals summarily dismissed for lack of jurisdiction.

We conclude the Court of Appeals erred; it had jurisdiction under the plain language of the statute. Accordingly, we reverse and remand to that court for consideration of the merits of Looney's appeal.

Facts and Procedural History

In 2010, the State charged Looney with several drug-related offenses after narcotics and drug paraphernalia were discovered during a traffic stop in Dodge City. After negotiations, Looney pled guilty to either one count of manufacture of methamphetamine or one count of attempted manufacture of methamphetamine, both of which are severity level 1 drug felonies.

Given the severity of the crime and Looney's agreed-upon criminal history score of “C,” the sentencing guidelines prescribed a presumptive sentence range of 169 to 187 months' imprisonment. But as part of Looney's plea agreement, the State recommended the district court grant him a downward durational departure and sentence him to only 72 months in prison.

At Looney's re-arraignment, the State confirmed the parties' agreement to a downward durational departure to 72 months. But the prosecutor further announced the State was “not going to bind [Looney's counsel] from making a dispositional departure motion.” Looney's counsel declared that despite the State's opposition, she would move for a dispositional departure, i.e., downward to probation. His counsel later did so at sentencing.

The court explicitly denied Looney's request for a downward dispositional departure to probation. But it granted the durational departure request and imposed 72 months' imprisonment.

Looney appealed the district court's denial of his motion to the Court of Appeals, moving for summary disposition of his sentencing appeal under Supreme Court Rule 7.041 (2013 Kan. Ct. R. Annot. 62). The court simply ruled: “The appeal is dismissed for lack of jurisdiction under K.S.A. 21–4721(c) and State v. Huerta, 291 Kan. 831 (2011).”

We granted Looney's petition for review under K.S.A. 20–3018(b), providing us jurisdiction under K.S.A. 60–2101(b). More facts are added as necessary to the analysis.

Analysis

Issue: The Court of Appeals erred by dismissing Looney's appeal for lack of jurisdiction.

K.S.A. 21–4721 (2007) governed Looney's appeal when he asked the Court of Appeals to review his sentence. The statute provided in relevant part:

“(a) A departure sentence is subject to appeal by the defendant or the state. The appeal shall be to the appellate courts in accordance with rules adopted by the supreme court.

....

“(c) On appeal from a judgment or conviction entered for a felony committed on or after July 1, 1993, the appellate court shall not review:

(1) Any sentence that is within the presumptive sentence for the crime; or

(2) any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.”

The Court of Appeals' summary order did not specify whether it dismissed Looney's appeal under K.S.A. 21–4721(c)(1) or (2). And the parties appear to disagree on which section applies. Looney contends the court had jurisdiction under K.S.A. 21–4721(a) and it is not divested by (c)(1). Specifically, he argues the plain language of subsection (a) grants jurisdiction to review his departure sentence: “A departure sentence is subject to appeal by the defendant.” Similarly, he argues subsection (c)(1) only divests jurisdiction for presumptive sentences: “[T]he appellate court shall not review (1)[a]ny sentence that is within the presumptive sentence for the crime.”

The State responds the Court of Appeals properly dismissed Looney's appeal for lack of jurisdiction under subsection (c)(2): “[T]he appellate court shall not review ... (2) any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.” It asserts his 72–month sentence was agreed upon and approved. But Looney counters that subsection (c)(2) does not apply because his request for dispositional departure to probation exhibits a failure to agree about his sentence.

Standard of review and general principles of statutory interpretation

Whether appellate jurisdiction exists is a question of law over which this court exercises unlimited review. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012). To the extent our inquiry requires interpretation of K.S.A. 21–4721, we also exercise unlimited review. 294 Kan. at 109, 273 P.3d 752 (citing State v. Ballard, 289 Kan. 1000, 1005, 218 P.3d 432 [2009] ).

The fundamental rule of statutory interpretation is “ ‘ “the intent of the legislature governs if that intent can be ascertained.” ’ ” State v. Holt, 298 Kan. 469, 474, 313 P.3d 826 (2013) (quoting State v. Hopkins, 295 Kan. 579, 581, 285 P.3d 1021 [2012] ). A statute's language is our paramount consideration because “ ‘the best and only safe rule for ascertaining the intention of the makers of any written law is to abide by the language they have used.’ ” Gannon v. State, 298 Kan. 1107, 1143, 319 P.3d 1196 (2014) (quoting Wright v. Noell, 16 Kan. 601, 607, 1876 WL 1081 [1876] ).

Discussion

The Court of Appeals has jurisdiction to consider Looney's appeal under K.S.A. 21–4721(a).

Looney's argument focuses on K.S.A. 21–4721(a) and (c)(1) because he interprets the Court of Appeals' summary order as relying on subsection (c)(1) to bar his appeal. His reading of the order is plausible given some of the caselaw construing this statute.

We begin our review of this caselaw with State v. Crawford, 21 Kan.App.2d 169, 897 P.2d 1041 (1995). There, similar to the instant case, the district court granted the defendant's motion to durationally depart from the presumptive sentence—mid-range sentence of 57 months' imprisonment—and reduced it to 34 months. But the court refused his request for a dispositional departure to a nonprison sentence. Among other things, defendant argued on appeal that the court erred in not ordering a dispositional departure.

The Crawford panel reviewed subsections (a) and (c)(1) and concluded the latter “limit[s] appellate jurisdiction by either the State or defendant to those instances in which the sentencing court has departed adversely to the appealing party.” (Emphasis added.) 21 Kan.App.2d at 170, 897 P.2d 1041. With this conclusion as its springboard, the panel held the district court's failure to grant a dispositional departure to a nonprison sentence was not appealable because the court had already granted a durational departure sentence favorable to the defendant: from 57 months to 34 months. In short, a defendant could not complain the sentencing court “did not depart enough.”

Crawford has been frequently relied upon to dismiss similar sentencing appeals for lack of jurisdiction. See, e.g., State v. Foy, No. 103,883, 2011 WL 432378, at *1 (Kan.2011) (unpublished opinion); State v. Mondragon–Martinez, No. 107,833, 2014 WL 642023, at *2 (Kan.App.2014) (unpublished opinion), petition for rev. filed March 17, 2014; State v. Croft, No. 105,597, 2012 WL 6634389, at *11 (Kan.App.2012) (unpublished opinion), petition for rev. filed January 11, 2013.

Despite this widespread reliance, we cast doubt on Crawford's continuing validity in State v. Huerta, 291 Kan. 831, 247 P.3d 1043 (2011). There, we considered equal protection and due process challenges to the restrictions on appellate jurisdiction contained in K.S.A. 21–4721. Although we did not directly address Crawford, we suggested its panel had erroneously construed K.S.A. 21–4721(c)(1) when we held:

“Merely moving for a departure sentence does not grant the right of appeal to a defendant, if the result of the motion is a presumptive sentence. See K.S.A. 21–4721(c)(1). The only defendants permitted to appeal are those sentenced to an upward departure on the State's motion or the court's notice, [citation omitted], or those who seek a downward departure to a specific term and who receive...