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State v. Young

Court of Appeals of Kansas

May 17, 2019

State of Kansas, Appellee,
Paul B. Young, Appellant.


         1. Whether jurisdiction exists is a question of law over which an appellate court's review is unlimited.

         2. Our 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.

         3. 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.

         4. 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 sentences.

         6. When 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.

         7. If 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.

          Appeal from Sedgwick District Court; Benjamin L. Burgess, judge.

          Sam Schirer, of Kansas Appellate Defender Office, for appellant.

          Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Arnold-Burger, C.J., Pierron, J., and McAnany, S.J.

          McAnany, J.

         In 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).

         In 2010, Young pled guilty to two KORA violations. Then, in 2016, Young pled guilty to his third KORA violation.

         On July 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.

         At a 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 investigation.

         Before sentencing Young moved for a downward durational departure.

         On 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.

         Young 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.

         Young's 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 conviction.

         The 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 ...

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