Appeal from Sedgwick District Court; ANTHONY J. POWELL, judge.
1. Whether jurisdiction exists is a question of law over which an appellate court has unlimited review regardless of whether the parties have raised the issue.
2. Under K.S.A. 2006 Supp. 21-4603d(f), when a person commits a felony while on probation for a previous felony, the court may sentence that person to imprisonment on the second felony even if the new crime was presumptive probation. Such a disposition is not a departure sentence.
3. One of the grounds on which a new legal theory can be raised for the first time on appeal is if consideration of the theory is necessary to serve the ends of justice or prevent a denial of fundamental rights.
4. The violation of a plea bargain by the State implicates due process rights, and appellate courts may address the issue for the first time on appeal in order to serve the ends of justice or prevent a denial of fundamental rights.
5. In Kansas, a district court is not bound by plea agreements or sentencing recommendations of the parties. It may impose sentences independent of any agreements or recommendations.
6. Under the facts of this case, a community corrections officer was an agent of the State and, therefore, bound by the terms of a plea agreement between the defendant and the State.
7. Under the facts in this case, where the plea agreement called for the State to recommend to the sentencing court that the defendant be placed on probation to residential community corrections and the prosecutor did so, a violation of the plea agreement occurred later when a community corrections officer recommended imprisonment to the sentencing court after being introduced to the court by the prosecutor.
8. A defendant's criminal history need not be proven to a jury beyond a reasonable doubt before it can be used to enhance the defendant's sentence.
The opinion of the court was delivered by: Bukaty, J.
Reversed and remanded with directions.
Before McANANY, P.J., LEBEN, J., and BUKATY, S.J.
Michael H. Chetwood appeals his probation revocation in one case and his sentence in another in these consolidated appeals. He argues in both that the State violated its plea agreement. He argues in just one of the cases that the district court erred in enhancing his sentence with prior convictions not proven to a jury beyond a reasonable doubt.
Chetwood agreed to plead guilty to a felony committed while he was on probation for another felony. In one of the terms of the plea bargain, the State agreed to recommend to the sentencing court a disposition of probation to residential community corrections on both the old and the new felony. The prosecutor made that recommendation to the district court at the sentencing hearing. He then introduced a community corrections officer (CCO) who recommended Chetwood be sentenced to a ...