State v. Warren

• Decision Date: 12 July 2013
• Docket Number: No. 104,489.,104,489.
• Parties: STATE of Kansas, Appellee, v. Waddell WARREN, Appellant.
• Court: Kansas Supreme Court

297 Kan. 881

304 P.3d 1288

STATE of Kansas, Appellee,

v.Waddell WARREN, Appellant.

No. 104,489.

Supreme Court of Kansas.

July 12, 2013.

Syllabus by the Court

1. Under K.S.A. 21–4721(c)(1), Kansas appellate courts do not have jurisdiction to hear the appeal of a presumptive criminal sentence. But when a district court misinterprets its own statutory authority and explicitly refuses to consider a defendant's request for a discretionary, nonpresumptive sentence that the district court has statutory authority to consider, the appellate court may take up the limited question of whether the district court properly interpreted the sentencing statute.

2. When sentencing a defendant for illegally possessing contraband in a prison in violation of K.S.A. 21–3826, the district court may, in an appropriate case, grant a departure sentence based on the small quantity of contraband involved and the statutory authority of K.S.A. 21–4716(c)(1)(E), which allows a departure sentence when the degree of harm from the crime is significantly less than typical for such an offense.

Ryan Eddinger, of Kansas Appellate Defender Office, was on the brief for appellant.

Amanda G. Voth, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

PER CURIAM:

Waddell Warren was convicted of introducing a controlled substance into a correctional facility and sentenced to an additional 122 months in prison. Warren requested that he be given a departure sentence because the amount of marijuana found in his socks was very small. The district court ruled that it could not consider a lesser sentence on that basis.

Warren appealed, claiming: (1) the district court erroneously concluded it could not even consider whether to grant a downward departure sentence to Warren based on the small amount of drugs he possessed, and (2) Warren's speedy trial rights were violated because he was not brought to trial within the time limits set by the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22–4301 et seq.

The Court of Appeals held that it had jurisdiction to review the decision of the district court to deny Warren's motion for a downward departure. The panel further held that while the decision of whether the district court actually should grant a departure sentence to Warren was a matter of discretion, the decision on whether the amount of drugs could be considered was an issue of law. The Court of Appeals affirmed the judgment of the district court in part, vacated the sentence entered by the district court, and remanded the case with directions to resentence the defendant in accordance with its opinion.

The State petitioned for our review, challenging only the sentencing issue. This court granted the State's petition for review; and we now dispose of the issue without oral argument under Kansas Supreme Court Rule 8.03(h)(3) ( 2012 Kan. Ct. R. Annot. 76).

We conclude that the Court of Appeals was correct. We, therefore, adopt the following from Judge Steve Leben's well-written opinion on behalf of the panel of our Court of Appeals:

“We face two primary questions in deciding Warren's appeal. First, we must determine whether we have jurisdiction to consider the appeal at all. Warren received the presumptive sentence for his offense and criminal-history score, and we have no jurisdiction to review a presumptive sentence. K.S.A. 21–4721(c)(1). Second, if we do have jurisdiction, we must determine whether the district court's ruling that a less-than-guidelines sentence cannot be given based on the amount of drugs was correct.

....

“I. We Have Jurisdiction to Consider the Limited Question Presented in this Appeal, Even Though the Defendant Received a Presumptive Sentence.

“We begin with the jurisdictional question. To determine the answer, we must consider the language of K.S.A. 21–4721(c)(1) as well as the holdings in three cases: State v. Huerta, 291 Kan. 831, 247 P.3d 1043 (2011); State v. Dillon, 44 Kan.App.2d 1138, 244 P.3d 680 (2010); and State v. Cisneros, 42 Kan.App.2d 376, 212 P.3d 246 (2009).

“K.S.A. 21–4721(c)(1), as it stood at the time Warren filed his appeal, provided that an ‘appellate court shall not review ... [a]ny sentence that is within the presumptive sentence for the crime....’ As our Supreme Court explained in Huerta, this statutory provision represented an intention to remove presumptive sentences from appellate review, even when appeals were based on a claim of prejudice, corrupt motive, or an error involving a constitutional right. 291 Kan. at 835–37, 838 . Thus, the court instructed in Huerta that a presumptive sentence could not be appealed based on a claim that an individual presumptive sentence was unconstitutional for some reason. 291 Kan. 831, Syl. ¶ 3 . And the court in Huerta specifically disapproved our decision in Dillon, which had considered an appeal on the basis that the district judge had refused to consider the constitutionality of the sentence. Huerta, 291 Kan. at 839–41, 247 P.3d 1043.

“But Warren is not raising a constitutional due-process argument or an argument that his presumptive sentence was unconstitutionally severe based on his facts. Warren instead argues that his appeal may be heard because the district court misinterpreted its sentencing options, the same argument our court ruled upon in Cisneros.

“In Cisneros, the defendant initially received probation, but the probation was revoked and the defendant was sent to prison to serve his original 155–month sentence. At the probation-revocation hearing, the defendant asked the district court to enter a lesser sentence, but the judge said that was ‘not within my power here.’ 42 Kan.App.2d at 377 . In fact, however, K.S.A. 22–3716(b) allows the district court to order the defendant either to serve the original sentence ‘or any lesser sentence’ when probation is revoked. When Cisneros appealed, the State argued that our court lacked jurisdiction to consider the appeal because Cisneros had received a presumptive sentence. But our court considered the appeal a question of statutory interpretation rather than a review of a presumptive sentence:

‘... Cisneros is not appealing the term or length of his sentence so much as he is appealing the district court's judgment that it had no power to reduce his sentence upon revoking his probation. This is a question of law that we have jurisdiction to consider on appeal. If we were to dismiss the appeal for lack of jurisdiction as the State requests, then Cisneros would have no remedy to determine whether the district court properly applied K.S.A. 22–3716(b) in his case.’ 42 Kan.App.2d at 379, 212 P.3d 246.

“[The Court of Appeals] reversed, explaining that the district court had misunderstood its statutory authority. The case was remanded for resentencing, but the district court was free to enter whatever sentence it found appropriate, though it would understand on remand that the original sentence was not its only option.

“If Cisneros is still good law, then Warren is entitled to be heard on appeal because he presents essentially the same argument that we addressed there. In Cisneros, the district judge said, ‘I don't have the power to lower [the sentence]. That is not within my power here.’ 42 Kan.App.2d at 377 . But under the applicable statute, K.S.A. 22–3716(b), the district judge in Cisneros did have the power to give Cisneros a lesser sentence upon revoking his probation. In Warren's case, the district judge also held that he did not have the power to reduce Warren's sentence. Warren's judge identified the question of whether the small amount of drugs can be ‘a legally sufficient reason’ to depart, but concluded, ‘I do not believe that meets the statutory factor, or factors[,] and [is] legally sufficient to constitute a substantial and compelling reason for departure, the amount of drugs involved.’ And in Warren's case, as in Cisneros, Warren makes the argument that under the applicable statute, K.S.A. 21–4716(c)(1) (E), the judge in Warren's case did have the power to give him a lesser sentence.

“In both Warren's case and in Cisneros, then, the appeal was based on the claim that the district court misinterpreted a statute and thus unduly limited its own statutory authority when sentencing the defendant. We see no meaningful distinction between the two cases, so we must now determine whether Cisneros is still good law given the Kansas Supreme Court's decision in Huerta. We must determine the jurisdictional issue before addressing the merits of Warren's claim. Huerta, 291 Kan. at 840–41, 247 P.3d 1043.

“The rulings made in Huerta do not undermine the continued validity of Cisneros. In Huerta, the court decided three issues: (1) the lack of appellate jurisdiction to consider an appeal of a presumptive sentence under K.S.A. 21–4721(c)(1) does not violate equal-protection rights; (2) the defendant had abandoned any due-process challenge to K.S.A. 21–4721(c)(1); and (3) a criminal defendant's claim that the sentence amounts to some constitutional violation does not give the defendant the right to appeal a presumptive sentence. 291 Kan. 831, Syl. ¶¶ 1–3 . None of these rulings deals with the question that was presented in Cisneros, which was whether an appellate court may set aside a sentence and order reconsideration of the sentence by the district court when that court has explicitly misinterpreted its own statutory sentencing authority.

“But we must also consider some comments made about Cisneros in one section of the Huerta opinion. In that section, the Huerta court was considering—and disapproving—our court's opinion in the Dillon case. In Dillon, our court had ruled that when a defendant asks for a departure sentence on constitutional grounds and the district court explicitly refuses to consider that argument, the sentence may be set aside and the case sent back for resentencing because the court had denied due process...