BY THE COURT
Whether jurisdiction exists is a question of law over which
an appellate court's review is unlimited.
appellate courts do not have discretionary power to entertain
appeals from all district court orders. To the contrary, the
right to appeal is entirely statutory. It is not contained in
the United States or Kansas Constitutions. Subject to certain
exceptions, our appellate courts have jurisdiction to
entertain an appeal only if the appeal is taken in the manner
prescribed by our statutes.
K.S.A. 2018 Supp. 21-6820(c)(1) provides that an appellate
court shall not review on appeal a sentence for a felony
conviction that is within the presumptive guidelines sentence
for the crime.
Under K.S.A. 2018 Supp. 21-6606(c), when a defendant commits
a crime while on probation for a previous felony conviction,
the defendant's sentence is required to run consecutive
to other sentences by operation of law.
5. As a
general principle, the imposition of consecutive presumptive
guideline sentences does not constitute a departure. Our
appellate courts lack the jurisdiction to entertain
challenges to the imposition of consecutive guideline
a defendant is on probation at the time the defendant commits
another crime, K.S.A. 2018 Supp. 21-6606(c), which is part of
our general sentencing statutes, requires the court to order
that the current sentence be served consecutively to the
sentence in the defendant's prior case. But under K.S.A.
2018 Supp. 21-6819(a), which is part of our sentencing
guidelines, the consecutive sentence called for in K.S.A.
2018 Supp. 21-6606(c) is not required if the imposition of
such a sentence would be manifestly unjust.
the district court considers whether a consecutive sentence
would be manifestly unjust and determines, consistent with a
provision in our sentencing guidelines, K.S.A. 2018 Supp.
21-6819(a), that it would not; and if the district court then
imposes a guideline sentence to be served following
completion of the defendant's prior sentence, as required
by K.S.A. 2018 Supp. 21-6606(c), the district court has not
departed from our sentencing guidelines. Accordingly, an
appellate court has no jurisdiction to consider the
defendant's appeal from the imposition of consecutive
presumptive sentences under the Kansas Sentencing Guidelines
Act. See K.S.A. 2018 Supp. 21-6801 et seq.
from Sedgwick District Court; Benjamin L. Burgess, judge.
Schirer, of Kansas Appellate Defender Office, for appellant.
A. Isherwood, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, for
Arnold-Burger, C.J., Pierron, J., and McAnany, S.J.
1999, Paul B. Young was convicted of aggravated indecent
liberties with a child under 14 years of age. As a result of
this conviction, he was required to register for his lifetime
under the Kansas Offender Registration Act, K.S.A. 2018 Supp.
22-4901 et seq. (KORA).
2010, Young pled guilty to two KORA violations. Then, in
2016, Young pled guilty to his third KORA violation.
31, 2017, the State charged Young with his fourth KORA
violation. Young was still on probation from his third KORA
violation at the time of this fourth violation. The
underlying sentence for his third KORA violation was a
mitigated 61-month guideline prison sentence.
hearing on October 19, 2017, Young appeared with his attorney
and waived his right to a preliminary hearing. He had no plea
agreement with the State. Nevertheless, he informed the court
that he wished to plead guilty. Before the hearing Young had
signed an acknowledgment of his rights in which he stated
that he understood that upon conviction of a fourth KORA
violation the sentence the court could impose ranged from 55
to 247 months. The district court informed Young of his
rights and his potential sentence and inquired if he
understood those rights. Young had no questions about his
rights and the consequences for entering a plea and expressed
the desire to enter a guilty plea. He stated that the
State's charging document was correct, and he agreed
there was a factual basis for the charge. The district court
found that Young "knowingly, intelligently, freely, and
voluntarily waived his rights," accepted Young's
plea, found him guilty as charged, and ordered a presentence
sentencing Young moved for a downward durational departure.
December 7, 2017, the court held a combined hearing on
Young's probation violation and for sentencing on his
fourth KORA conviction. Young admitted to six probation
violations in his prior case. The State recommended that
Young's probation be revoked and that he serve his
underlying prison sentence of 61 months.
agreed with his criminal history as reported to the court and
agreed that his criminal history score was D. Based on that
score, the sentencing grid range for his fourth KORA
violation was 89-94-100 months.
counsel argued that there were substantial and compelling
reasons for the court to depart from the guidelines and
impose a sentence of 36 months to be served concurrently with
his 61-month sentence in his prior case. He argued that it
would be manifestly unjust to do otherwise because the
current conviction arose from an 11-day delay in registering
after moving to a new address, that Young was otherwise in
compliance with his registration requirements, and that Young
took responsibility for his actions. He also addressed the
probation violations related to Young's KORA violation
State requested that the court impose the low number
guideline sentence of 89 months but argued that Young's
sentence should be served consecutively to his 61-month
prison sentence in the prior case in which he ...