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.
Review of the judgment of the Court of Appeals in 47 Kan.App.2d 57,
270 P.3d 13 (2012). Appeal from Reno District Court; Timothy J. Chambers,
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.
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 ...