PER CURIAM.

Appeal from Crawford District Court; John Gariglietti, Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ATCHESON, J., and HEBERT, S.J.

MEMORANDUM OPINION

PER CURIAM.

Stephen J. Dibble appeals from the departure sentence imposed by the court pursuant to his plea agreement and guilty pleas to one count of aggravated burglary and one count of criminal possession of a firearm.

Based on Dibble's criminal history, the presumptive sentence under the applicable guidelines for aggravated burglary ranged from 41 to 47 months in prison. The sentence range for criminal possession of a firearm was from 7 to 9 months' imprisonment. Dibble committed the offenses while on felony probation and felony bond and was thus subject to a special sentencing rule. As part of the plea agreement, the parties recommended that Dibble receive a total sentence of 60 months, which would require the district court to impose an upward durational departure to 51 months' imprisonment on the aggravated burglary charge. Dibble agreed to waive his right to have a jury determine the substantial and compelling reasons in support of such a departure. The district court imposed the sentence recommended by the parties but made no specific finding of substantial or compelling reasons for the departure other than the agreement of the parties.

Jurisdiction

In his first issue on appeal, Dibble claims that the sentence imposed by the district court was an illegal sentence. The State contends that this court lacks jurisdiction to consider Dibble's appeal because he received the sentence which the parties agreed to and recommended in the plea agreement.

The existence of jurisdiction is a threshold question of law over which we exercise unlimited review. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007).

Because neither the United States Constitution nor the Kansas Constitution provides a right to appeal, our legislature has authorized by statute what appeals this court is allowed to entertain. See State v. Gill, 287 Kan. 289, 293–94, 196 P.3d 369 (2008). When the record discloses a lack of jurisdiction, this court has a duty to dismiss the appeal. Denney, 283 Kan. at 787.

Our Supreme Court recently held that “all departure sentences are subject to appeal under K.S.A. 21–4721(a) [recodified as K.S.A.2013 Supp 21–6820(a) ] unless appellate jurisdiction is divested by a more specific provision.” State v. Looney, 299 Kan. 903, 909, 327 P.3d 425 (2014). The State argues that K.S.A.2013 Supp 21–6820(c)(2) is a more specific provision that divests this court of jurisdiction because the statute directs that “[o]n appeal from a judgment or conviction entered for a felony committed on or after July 1, 1993, the appellate court shall not review: ... (2) any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.”

But our Supreme Court has held that this statutory limitation on appellate jurisdiction does not preclude appellate review of a claim of an illegal sentence resulting from a plea agreement. In State v. Duncan, 291 Kan. 467, 470–71, 243 P.3d 338 (2010), it was determined that an appellate court has jurisdiction to correct an illegal upward departure sentence even though it resulted from a plea agreement. K.S.A. 22–3504(1) also provides that the court may correct an illegal sentence at any time. An “illegal sentence,” as contemplated by K.S.A. 22–3504(1), “is one that (a) is imposed by a court without jurisdiction; (b) does not conform to the statutory provision, either in character or the term of the punishment authorized; or (c) is ambiguous with regard to the time and manner in which it is to be served.” State v. Sims, 294 Kan. 821, Syl. ¶ 3, 280 P.3d 780 (2012).

Dibble suggests that his upward departure is illegal because it does not conform to K.S.A.2013 Supp. 21–6815(a), which directs that “[i]f the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.” See State v. Blackmon, 285 Kan. 719, 729, 176 P.3d 160 (2008) (discussing the sentencing court's statutory obligation to state substantial and compelling reasons for departure on the record at the time of sentencing).

Accordingly, we have jurisdiction to review Dibble's claim of an illegal sentence.

Illegal Sentence

The determination of whether Dibble's departure sentence is illegal is again a question of law over which we exercise unlimited review.

K.S.A.2013 Supp 22–6815(c)(2) sets forth a nonexclusive list of statutory aggravating factors that may justify an upward departure sentence. There is no dispute that the district court did not cite any of those statutory factors. Rather, after confirming with Dibble that he waived his right to have a jury determine the aggravating factors to support an upward departure, the district judge stated only, “I would then grant the request of both the [S]tate and this defendant pursuant to their plea agreement and upward durationally depart to 51 months from the 47 month aggravated sentencing range pursuant to the sentencing guidelines.” Though not controlling, the journal entry of sentencing also reflects that the “agreement of the parties pursuant to plea agreement” was the reason the court imposed the upward departure.

Is the parties' agreement a substantial and compelling reason to impose an upward departure sentence? The State summarily contends that it is, and Dibble summarily contends that it is not. Because we exercise de novo review over this legal question, the lack of briefing on this issue does not preclude us from reaching the issue. See Blackmon, 285 Kan. at 724–25.

Our Supreme Court has held that “[t]o be substantial the reason must be real, not imagined, and of substance, not ephemeral. To be compelling the reason must be one which forces the court, by the facts of the case, to abandon the status quo and to venture beyond the sentence that it would ordinarily impose. State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 (2001).” Blackmon, 285 Kan. at 724. While we have not been directed to any cases that have addressed whether the parties' agreement alone can constitute a substantial and compelling reason for an upward departure, our Supreme Court has suggested in other contexts that mere stipulations to recommend a departure sentence do not necessarily constitute substantial and compelling reasons for the court to follow the recommendation. For example, in State v. Whorton, 292 Kan. 472, 475, 254 P.3d 1268 (2011), a defendant argued the district court abused its discretion in refusing to impose a downward departure sentence where the State had agreed—both in the plea agreement and at sentencing—that a statutory mitigating factor constituted a substantial and compelling reason to depart. The court found the defendant's argument “fundamentally flawed” because

“[w]hile the prosecutor may stipulate to the existence of facts which establish a mitigating factor, any stipulation as to the legal effect of the mitigating factor is not binding on the court.... [I]t is the judge who must find substantial and compelling reasons to depart after a review of the mitigating factors. [Citations omitted.]” 292 Kan. at 475–76.

This reasoning would apply equally to the establishment and finding of aggravating factors for an upward departure. The sentencing judge did not satisfy its obligation to cite on the record what substantial and compelling reasons supported Dibble's upward departure sentence; thus the departure resulted in a facially illegal sentence.

An appellate court is precluded from searching the record for substantial and compelling reasons for a departure sentence. Blackmon, 285 Kan. at 729. The proper remedy is to vacate the departure sentence and remand for the district court to resentence or to clarify the reasons supporting the upward departure. See 285 Kan. at 730–32 (citing State v. Garcia, 274 Kan. 708, 717, 56 P.3d 797 [2002]; State v. Peterson, 25 Kan.App.2d 354, Syl. ¶ 2, 964 P.2d 695, rev. denied 266 Kan. 1114 [1998] ).

Constitutional Challenges to Sentencing

Dibble raises two additional issues involving constitutional challenges to his sentence.

Dibble first contends that the district court's use of his criminal history to increase his sentence without requiring it to be included in the charging document and proved beyond a reasonable doubt was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He also argues that the district court erred when it sentenced him to the “aggravated” upper term in the presumptive grid block for his conviction of criminal possession of a firearm, citing Apprendi and Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007).

Dibble concedes that the Kansas Supreme Court has decided both issues contrary to the positions he takes in his brief. See State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002) (use of criminal history); State v. Johnson, 286 Kan. 824, 851–52, 190 P.3d 207 (2008) (aggravated upper term in presumptive grid block). We are duty bound to follow such precedent absent any indication of intent by the Supreme Court to depart. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012).

More pointedly, however, our Supreme Court has held that such constitutional challenges do not fit within the definition of an illegal sentence. See State v. Mitchell, 284 Kan. 374, 376–77, 162 P.3d 18 (2007). Since Dibble's departure sentence was imposed pursuant to a plea agreement, K.S.A.2013 Supp 21–6820(c)(2) divests this court of jurisdiction over these issues, and they are dismissed.

Dismissed in part, vacated in part, and remanded with directions for resentencing.