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State v. Andelt

November 21, 2008

STATE OF KANSAS, APPELLEE,
v.
RANDY WAYNE ANDELT, APPELLANT.



Appeal from Marshall District Court; JAMES A. PATTON, judge.

SYLLABUS BY THE COURT

1. A sentencing court is not required to impose a non-prison sentence, even if such a sentence is presumed, in certain circumstances, such as when a new felony is committed while the offender is incarcerated and serving a sentence for a felony or while the offender is on probation, assignment to a community correctional services program, parole, conditional release, or postrelease supervision for a felony. See K.S.A. 21-4603d(f).

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

Appeal dismissed.

Before HILL, P.J., McANANY and STANDRIDGE, JJ.

In this appeal we must answer the question whether a sentencing court may impose a prison sentence on a defendant whose criminal history score presumptively qualifies him for drug abuse treatment. Randy Wayne Andelt, on parole for a felony in Nebraska, pleaded no contest to possession of methamphetamine in Kansas. His criminal history score placed Andelt in a sentencing category calling for drug abuse treatment. The district court sent him to prison instead. We hold Andelt's sentence was a proper guidelines sentence because our sentencing statutes do not compel a court to impose a non-prison sentence, even if presumed, when an offender commits a new felony while the offender is on parole. Therefore, we dismiss this appeal because we have no jurisdiction to review the sentence.

The background facts show a plea, a sentence, and an appeal.

Randy Wayne Andelt entered a plea of no contest in Marshall County to one count of possession of methamphetamine, a severity level 4 drug felony, in violation of K.S.A. 65-4160(a). The district court accepted Andelt's plea. In March 2007, the court passed sentence on Andelt.

At the sentencing hearing, both sides agreed that Andelt's criminal history score was E. Under this classification, Andelt's offense placed him in a 4-E grid block of the sentencing guidelines for drug crimes. This qualified him for a non-prison sanction of certified drug treatment under Senate Bill 123. Despite this qualification, the sentencing court declined to impose the non-prison sentence. The sentencing court, citing K.S.A. 21-4603d(f), sentenced Andelt to the standard prison term of 20 months, with a postrelease supervision term of 12 months. The court reasoned that Andelt's extensive criminal history, and the fact he was on parole from a Nebraska felony conviction when he committed this crime, required a prison sanction.

On appeal, Andelt argues the district court erred when it declined to sentence him to a non-prison sanction of drug abuse treatment under Senate Bill 123 as provided by K.S.A. 21-4729.

We look at statutory exceptions found within the sentencing guidelines.

From time to time our Kansas Legislature will compress new laws that affect several existing statutes into one large bill. Such a bill is Senate Bill 123, passed in 2003. It is comprised of 11 sections and amends several statutes. L. 2003, ch. 135, sec. 1. Section 1 of Senate Bill 123, which became K.S.A. 2003 Supp. 21-4729, sets up a non-prison sanction of certified drug treatment for certain offenders who are sentenced on or after November 1, 2003. See State v. Bee, 39 Kan. App. 2d 139, 143, 179 P.3d 466, rev. granted 286 Kan. ___; L. 2003, ch. 135, sec. 1.

The law limits this non-prison sanction to qualifying adult offenders. They must be convicted of a violation of K.S.A. 65-4160 or 65-4162, and their offense and criminal history score must place them in sentencing grid blocks 4-E, 4-F, 4-G, 4-H, or 4-I on the drug crime sentencing grid. Plus, the offender must have no felony conviction for a violation of K.S.A. 65-4142, 65-4159, 65-4161, 65-4163, or 65-4164. See K.S.A. 21-4729(a)(1). If the offender meets all these requirements, K.S.A. 21-4729(c) states that "[t]he sentencing court shall commit the offender to treatment in a drug ...


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