Opinion
111,486.
02-13-2015
STATE of Kansas, Appellee, v. Tyler M. KIRKHART, Appellant.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Tyler M. Kirkhart appeals his departure sentence. He claims that “[t]he district court abused its discretion in denying [his] request for probation” and that he is therefore entitled to a remand for resentencing. His contention is groundless. The sentencing hearing transcript confirms that neither Kirkhart nor his attorney ever asked the district court to grant a dispositional departure to probation. Rather, the district court approved the parties' plea agreement on the record and granted the only departure the parties jointly requested, a downward durational departure sentence. Thus, under K.S.A.2013 Supp. 21–6820(c)(2), we have no jurisdiction to consider this appeal.
Factual and Procedural Background
Tyler M. Kirkhart was on probation for felony convictions under three separate cases. As part of the probation for his burglary conviction, he was placed in the custody of the Sedgwick County Department of Corrections Residential Center. This placement allowed him to participate in a work release program. On May 21, 2013, he signed out of the Center to go to work. However, he did not return. The State charged him with aggravated escape from custody, a severity level 8 nonperson felony. Once apprehended, Kirkhart faced the new charge as well as the revocation of his prior felony probations.
Kirkhart's counsel and the State negotiated a global plea agreement to dispose of all of the issues in the new aggravated escape case and in his prior probation cases. Pertinent to the new case, the agreement provided that Kirkhart would plead guilty to the aggravated escape charge and, at sentencing, “[B]oth parties will recommend the Court grant a downward durational departure to 8 months in this case and for the Court to impose a prison disposition .” The plea agreement clearly left no room for Kirkhart to seek a departure to probation. The district court conducted a plea hearing and, after a thorough colloquy with Kirkhart on the plea agreement terms, accepted his guilty plea.
The presentence investigation report confirmed what the parties anticipated: Kirkhart's criminal history score was a C, so, under the applicable severity level 8 gridbox, the guidelines sentencing range was 19, 18, or 17 months. Because he committed the offense while on supervision, imprisonment was presumed. At sentencing, as agreed, the parties each recommended to the district court that it impose a downward durational departure sentence of 8 months in prison. Kirkhart's counsel made clear in arguing his departure motion that “We're not asking for probation today. Mr. Kirkhart is prepared to go to prison today.” During his allocution, Kirkhart did not ask for probation. He said, “I won't give you no excuses. I did mess up and I'm ready to go.” The district court approved the plea agreement on the record and sentenced Kirkhart to the agreed durational departure sentence of 8 months in prison.
Kirkhart has timely appealed his sentence.
Analysis
Kirkhart claims that the district court abused its discretion in denying his request for a departure to probation and that he is entitled to a remand for resentencing.
In State v. Looney, 299 Kan. 903, 908–09, 327 P.3d 425 (2014), our Supreme Court recently clarified how our statutes affect a defendant's right to appeal from a departure sentence. It ruled that a defendant could appeal, pursuant to K.S.A. 21–4721(a) (now K.S.A.2013 Supp. 21–6820 [a] ), at least under certain circumstances, even a favorable departure sentence by claiming it was not favorable enough. There, pursuant to a plea agreement, the district court sentenced Looney to the agreed downward durational departure sentence. The parties had made no agreement on a dispositional departure to probation other than that Looney was free to request it and the State would oppose it. The district court denied Looney's request for probation. Looney appealed from that denial. Our Supreme Court held that appellate courts have jurisdiction over appeals like Looney's because of the plain language of then applicable K.S.A. 21–4721(a), which stated: “A departure sentence is subject to appeal by the defendant or the state. The appeal shall be to the appellate courts in accordance with rules adopted by the supreme court.” Since Looney received a departure sentence, he could appeal from the denial of the probation he had requested.
As did Looney, Kirkhart received a durational departure sentence. If he also had requested but been denied a departure to probation, then his situation would be similar to that in Looney. We have closely reviewed the record in order to find what Kirkhart's appellate counsel claims is there, i.e., a request for a dispositional departure to probation that the district court rejected. Kirkhart's brief cites us not to a hearing transcript but rather to the last page of his “Motion to Impose Durational Departure Sentence.”
The “Wherefore” paragraph at the end of that motion apparently provides the anomaly on which appellate counsel relies. It states: “Wherefore, Defendant respectfully requests that the Court grant his Motion to Impose a Dispositional and Durational Departure sentence allowing defendant to be placed with probation and drug treatment. Defendant wishes for the court to order a solution that incorporates drug treatment and/or any other relief as the Court deems just and proper.”
We are inclined to believe that the above “Wherefore” paragraph is a cut and paste error rather than a genuine request for probation by Kirkhart's counsel. The motion was filed after the plea hearing during which the parties expressly agreed that Kirkhart would go to prison. It misnames the actual motion, which did not include “Dispositional” in its title. The text in the body of the motion never requests probation, drug treatment, or a dispositional departure. Throughout that text Kirkhart's attorney scrupulously adheres to the plea agreement and asks only for the agreed durational departure. Most importantly, and regardless of the motion, nowhere in the sentencing record did either Kirkhart or his attorney request a dispositional departure to probation. Each of them clearly anticipated that the disposition would be, as agreed, imprisonment. In spite of Kirkhart's contention on appeal, we will not deem that the district court has denied a request for probation when such a request was never actually made at the sentencing hearing.
Looney does not provide us with jurisdiction over all appeals from a departure sentence. Rather, Looney provides that “all departure sentences are subject to appeal under K.S.A. 21–4721(a) [now K.S.A.2013 Supp. 21–6820(a) ] unless appellate jurisdiction is divested by a more specific provision. ” (Emphasis added.) 299 Kan. at 909. Here, Kirkhart and the State agreed in the plea agreement to recommend the 8–month durational departure sentence. The sentencing court approved their agreement on the record and imposed the agreed-upon sentence. K.S.A.2013 Supp. 21–6820(c)(2) precludes appellate review of “any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.” That provision clearly applies to the sentence imposed here. Since K.S.A.2013 Supp. 21–6820(c)(2) is a more specific provision than K.S.A.2013 Supp. 21–6820(a), our review of Kirkhart's departure sentence is precluded. Kirkhart's circumstances are not like Looney's: Kirkhart did not request, so he was not denied probation. Therefore, under the limiting language of K.S.A.2013 Supp. 21–6820(c)(2), we have no jurisdiction over Kirkhart's appeal. When the record discloses a lack of jurisdiction, we must dismiss the appeal. State v. J.D.H., 48 Kan.App.2d 454, 458, 294 P.3d 343, rev. denied 291 Kan. 1251(2013).
Appeal dismissed.