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State v. Cooper

Court of Appeals of Kansas

April 14, 2017

State of Kansas, Appellee,
v.
Bradley Harold Cooper, Appellant.

         SYLLABUS BY THE COURT

         1. Interpretation of a statute under the revised Kansas Sentencing Guidelines Act is a question of law, and an appellate court's scope of review is unlimited.

         2. A departure sentence is subject to appeal by the defendant or the State under the plain language of K.S.A. 2016 Supp. 21-6820(a), unless a more specific provision divests the court of jurisdiction.

         3. K.S.A. 2016 Supp. 21-6820(c)(2) provides that an appellate court shall not review any sentence resulting from an agreement between the State and the defendant which the sentencing court approves on the record.

         4. K.S.A. 2016 Supp. 21-6820(c)(2) is a more specific provision than K.S.A. 2016 Supp. 21-6820(a) that divests an appellate court of jurisdiction to review a departure sentence if warranted by the facts of the case.

         Appeal from Saline District Court; Rene S. Young, judge.

         Submitted for summary disposition pursuant to K.S.A. 2016 Supp. 21-6820(g) and (h).

          Before Malone, P.J., Leben and Powell, JJ.

          Malone, J.

         Bradley Harold Cooper appeals his sentence following his convictions of two counts of possession of a controlled substance and other crimes. We granted Cooper's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2017 Kan. S.Ct. R. 48). The State has filed a response and agrees that summary disposition is appropriate.

         On February 16, 2016, Cooper pled no contest to two counts of possession of a controlled substance, each a severity level 5 drug felony; one count of possession of drug paraphernalia, a class A nonperson misdemeanor; one count of interference with law enforcement, a class A nonperson misdemeanor; and one count of improper lane change, a traffic infraction. Pursuant to the plea agreement, the State agreed to recommend that Cooper receive concurrent sentences and probation from the presumptive sentence of imprisonment. Cooper subsequently filed a motion for departure claiming that a departure sentence was warranted for numerous reasons including the fact that Cooper accepted responsibility for the crimes, the State was recommending probation, and a nonprison sentence would promote offender reformation and reduce the risk of recidivism.

         At the sentencing hearing on April 29, 2016, the district court followed the plea agreement and imposed concurrent sentences resulting in a controlling term of 20 months' imprisonment, and the district court granted Cooper's motion for a dispositional departure to probation for 12 months for the reasons stated in the motion. Cooper's court-appointed attorney filed a notice of appeal from that sentence.

         On appeal, Cooper claims "the district court erred in sentencing him." Cooper does not specify how the district court erred in sentencing him, and he makes no claim that he received an illegal sentence. Moreover, Cooper acknowledges that pursuant to K.S.A. 2016 Supp. 21-6820(c)(2), an appellate court shall not review any sentence resulting from an agreement between the State and the defendant which the sentencing court approves on the record. In response, the State asserts that Cooper's presumptive sentence cannot be challenged on direct appeal.

         Resolution of Cooper's appeal requires an analysis of the revised Kansas Sentencing Guidelines Act, K.S.A. 2016 Supp. 21-6801 et seq. Interpretation of a sentencing statute is a question of law, and our scope of review is ...


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