State v. Looney

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 107,011

STATE OF KANSAS,
Appellee,

v.

TYRONE LEE LOONEY,
Appellant.


SYLLABUS BY THE COURT

1.
Whether appellate jurisdiction exists is a question of law over which the scope of
appellate review is unlimited.

2.
Statutory interpretation and construction are subject to unlimited appellate review.

3.
The fundamental rule of statutory interpretation to which all other rules are
subordinate is that the intent of the legislature governs if that intent can be ascertained.
Statutory language is an appellate court's paramount consideration because the best and
only safe rule for ascertaining the intention of the makers of any written law is to abide
by the language they have used.

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4.
Unless a more specific provision divests an appellate court of jurisdiction, it has
jurisdiction over the appeal of any departure sentence under the plain language of K.S.A.
21-4721(a) (2007).

5.
Under the facts of this case, the Court of Appeals had jurisdiction to consider the
defendant's appeal of his sentence under K.S.A. 21-4721(a) (2007).

6.
K.S.A. 21-4721(c)(2) did not divest the Court of Appeals of jurisdiction because
the sentence of imprisonment was not the result of an agreement between the defendant
and the State.

Review of the judgment of the Court of Appeals. Appeal from Ford District Court; DANIEL L.
LOVE, judge. Opinion filed June 20, 2014. Judgment of the Court of Appeals summarily dismissing the
case for lack of jurisdiction is reversed, and the case is remanded to the Court of Appeals for
consideration of the merits.

Lydia Krebs, of Kansas Appellate Defender Office, was on the brief for appellant.

Jaskamal P. Dhillon, assistant county attorney, Natalie Randall, county attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

NUSS, C.J.: This case requires us to determine the appellate courts' authority to
review certain criminal sentences under K.S.A. 21-4721 (2007). The district court denied
Tyrone Lee Looney's motion for probation, i.e., for a downward dispositional departure
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from his presumptive sentence of 169 to 187 months' imprisonment. Instead, the court
granted a downward durational departure to 72 months in prison. When Looney appealed
the denial of probation, the Court of Appeals summarily dismissed for lack of
jurisdiction.

We conclude the Court of Appeals erred; it had jurisdiction under the plain
language of the statute. Accordingly, we reverse and remand to that court for
consideration of the merits of Looney's appeal.

FACTS AND PROCEDURAL HISTORY

In 2010, the State charged Looney with several drug-related offenses after
narcotics and drug paraphernalia were discovered during a traffic stop in Dodge City.
After negotiations, Looney pled guilty to either one count of manufacture of
methamphetamine or one count of attempted manufacture of methamphetamine, both of
which are severity level 1 drug felonies.

Given the severity of the crime and Looney's agreed-upon criminal history score
of "C," the sentencing guidelines prescribed a presumptive sentence range of 169 to 187
months' imprisonment. But as part of Looney's plea agreement, the State recommended
the district court grant him a downward durational departure and sentence him to only 72
months in prison.

At Looney's re-arraignment, the State confirmed the parties' agreement to a
downward durational departure to 72 months. But the prosecutor further announced the
State was "not going to bind [Looney's counsel] from making a dispositional departure
motion." Looney's counsel declared that despite the State's opposition, she would move
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for a dispositional departure, i.e., downward to probation. His counsel later did so at
sentencing.

The court explicitly denied Looney's request for a downward dispositional
departure to probation. But it granted the durational departure request and imposed 72
months' imprisonment.

Looney appealed the district court's denial of his motion to the Court of Appeals,
moving for summary disposition of his sentencing appeal under Supreme Court Rule
7.041 (2013 Kan. Ct. R. Annot. 62). The court simply ruled: "The appeal is dismissed for
lack of jurisdiction under K.S.A. 21-4721(c) and State v. Huerta, 291 Kan. 831[, 247
P.3d 1043] (2011)."

We granted Looney's petition for review under K.S.A. 20-3018(b), providing us
jurisdiction under K.S.A. 60-2101(b). More facts are added as necessary to the analysis.

ANALYSIS

Issue: The Court of Appeals erred by dismissing Looney's appeal for lack of jurisdiction.

K.S.A. 21-4721 (2007) governed Looney's appeal when he asked the Court of
Appeals to review his sentence. The statute provided in relevant part:

"(a) 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.

. . . .

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"(c) On appeal from a judgment or conviction entered for a felony committed on
or after July 1, 1993, the appellate court shall not review:

(1) Any sentence that is within the presumptive sentence for the crime; or

(2) any sentence resulting from an agreement between the state and the defendant
which the sentencing court approves on the record."

The Court of Appeals' summary order did not specify whether it dismissed
Looney's appeal under K.S.A. 21-4721(c)(1) or (2). And the parties appear to disagree on
which section applies. Looney contends the court had jurisdiction under K.S.A. 21-
4721(a) and it is not divested by (c)(1). Specifically, he argues the plain language of
subsection (a) grants jurisdiction to review his departure sentence: "A departure sentence
is subject to appeal by the defendant." Similarly, he argues subsection (c)(1) only divests
jurisdiction for presumptive sentences: "[T]he appellate court shall not review (1) [a]ny
sentence that is within the presumptive sentence for the crime."

The State responds the Court of Appeals properly dismissed Looney's appeal for
lack of jurisdiction under subsection (c)(2): "[T]he 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." It asserts his 72-month sentence was agreed
upon and approved. But Looney counters that subsection (c)(2) does not apply because
his request for dispositional departure to probation exhibits a failure to agree about his
sentence.

Standard of review and general principles of statutory interpretation

Whether appellate jurisdiction exists is a question of law over which this court
exercises unlimited review. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012). To
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the extent our inquiry requires interpretation of K.S.A. 21-4721, we also exercise
unlimited review. 294 Kan. at 109 (citing State v. Ballard, 289 Kan. 1000, 1005, 218
P.3d 432 [2009]).

The fundamental rule of statutory interpretation is "'"the intent of the legislature
governs if that intent can be ascertained."'" State v. Holt, 298 Kan. 469, 474, 313 P.3d
826 (2013) (quoting State v. Hopkins, 295 Kan. 579, 581, 285 P.3d 1021 [2012]). A
statute's language is our paramount consideration because "'the best and only safe rule for
ascertaining the intention of the makers of any written law is to abide by the language
they have used.'" Gannon v. State, 298 Kan. 1107, 1143, 319 P.3d 1196 (2014) (quoting
Wright v. Noell, 16 Kan. 601, 607, 1876 WL 1081 [1876]).

Discussion

The Court of Appeals has jurisdiction to consider Looney's appeal under
K.S.A. 21-4721(a).

Looney's argument focuses on K.S.A. 21-4721(a) and (c)(1) because he interprets
the Court of Appeals' summary order as relying on subsection (c)(1) to bar his appeal.
His reading of the order is plausible given some of the caselaw construing this statute.

We begin our review of this caselaw with State v. Crawford, 21 Kan. App. 2d 169,
897 P.2d 1041 (1995). There, similar to the instant case, the district court granted the
defendant's motion to durationally depart from the presumptive sentence—mid-range
sentence of 57 months' imprisonment—and reduced it to 34 months. But the court
refused his request for a dispositional departure to a nonprison sentence. Among other
things, defendant argued on appeal that the court erred in not ordering a dispositional
departure.
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The Crawford panel reviewed subsections (a) and (c)(1) and concluded the latter
"limit[s] appellate jurisdiction by either the State or defendant to those instances in which
the sentencing court has departed adversely to the appealing party." (Emphasis added.)
21 Kan. App. 2d at 170. With this conclusion as its springboard, the panel held the
district court's failure to grant a dispositional departure to a nonprison sentence was not
appealable because the court had already granted a durational departure sentence
favorable to the defendant: from 57 months to 34 months. In short, a defendant could not
complain the sentencing court "did not depart enough."

Crawford has been frequently relied upon to dismiss similar sentencing appeals
for lack of jurisdiction. See, e.g., State v. Foy, No. 103,883, 2011 WL 432378, at *1
(Kan. 2011) (unpublished opinion); State v. Mondragon-Martinez, No. 107,833, 2014
WL 642023, at *2 (Kan. App. 2014) (unpublished opinion), petition for rev. filed March
17, 2014; State v. Croft, No. 105,597, 2012 WL 6634389, at *11 (Kan. App. 2012)
(unpublished opinion), petition for rev. filed January 11, 2013.

Despite this widespread reliance, we cast doubt on Crawford's continuing validity
in State v. Huerta, 291 Kan. 831, 247 P.3d 1043 (2011). There, we considered equal
protection and due process challenges to the restrictions on appellate jurisdiction
contained in K.S.A. 21-4721. Although we did not directly address Crawford, we
suggested its panel had erroneously construed K.S.A. 21-4721(c)(1) when we held:

"Merely moving for a departure sentence does not grant the right of appeal to a
defendant, if the result of the motion is a presumptive sentence. See K.S.A. 21-
4721(c)(1). The only defendants permitted to appeal are those sentenced to an upward
departure on the State's motion or the court's notice, [citation omitted], or those who seek
a downward departure to a specific term and who receive the departure but to a term
longer than the one sought, [citation omitted]." (Emphasis added.) 291 Kan. at 836.
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So under Huerta, a defendant who requests a durational departure to a specific
term, and then receives a favorable durational departure but to a term longer than the one
requested, could appeal that ruling. In other words, under those circumstances the
defendant could indeed complain the sentencing court "did not depart enough."

Looney concedes Huerta could be read to preclude appellate review of his
sentence because his requested probation, while a departure from his presumptive
sentence, was not one of a specific term. He further concedes Crawford would certainly
bar his appeal. But he argues these would be contrary to the plain language of K.S.A. 21-
4721, and therefore the Court of Appeals had jurisdiction to consider his appeal. We
agree with Looney.

Looney unquestionably received a departure sentence. He was sentenced to 72
months' imprisonment when his presumptive sentence was 169 to 187 months. See
K.S.A. 21-4703(f) (defining a departure as "a sentence which is inconsistent with the
presumptive sentence for an offender"). Further, the court explicitly recognized on the
record Looney was receiving a durational departure.

And clearly "[a] departure sentence is subject to appeal by the defendant . . . ."
K.S.A. 21-4721(a). The statute's language makes no distinction between a favorable or
unfavorable departure. Nor does it express the departure is not appealable because it is
"enough." See Gannon v. State, 298 Kan. at 1143 ("'[T]he best and only safe rule for
ascertaining the intention of the makers of any written law, is to abide by the language
they have used.'"). So the Court of Appeals has jurisdiction over Looney's appeal under
subsection (a).

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As for its statutory basis to deny jurisdiction, the Court of Appeals simply cited
K.S.A. 21-4721(c). To the extent the Court of Appeals relied on subsection (c)(1) to
dismiss Looney's appeal, it erred because this subsection only bars review of presumptive
sentences: "[T]he appellate court shall not review . . . [a]ny sentence that is within the
presumptive sentence for the crime." (Emphasis added.) And Looney did not receive a
presumptive sentence—from 169 to 187 months' imprisonment. So subsection (c)(1) does
not bar the Court of Appeals' jurisdiction to hear his appeal.

While in Huerta we essentially acknowledged the Crawford panel had erroneously
ruled subsection (c)(1) barred review of many departure sentences, Looney argues our
language was too restrictive. We agree. We therefore explicitly overrule Crawford and
hold all departure sentences are subject to appeal under K.S.A. 21-4721(a) unless
appellate jurisdiction is divested by a more specific provision. We also expressly clarify
any contrary signal in Foy or Huerta.

Subsection (c)(2) does not divest the Court of Appeals of jurisdiction to
consider Looney's appeal.

The State primarily argues the Court of Appeals correctly dismissed Looney's
appeal because its jurisdiction was divested by subsection (c)(2) of K.S.A. 21-4721. This
provision states 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." And per the State, Looney agreed he should be sentenced to 72 months'
imprisonment.

Looney responds that his request for a downward dispositional departure to
probation obviously is an express disagreement with a 72-month prison sentence. So the
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plain language of agreement contained in subsection (c)(2) cannot bar appellate
jurisdiction over his appeal.

As mentioned, the prosecutor acknowledged to the court at re-arraignment that the
State was "not going to bind [defense counsel] from making a dispositional departure
motion." Defense counsel later responded, "[T]hen, I'm free to argue for a dispositional
departure, Judge, to Corrections and she's [prosecutor] free to argue prison." Consistent
with these statements, Looney's counsel eventually filed a motion for a dispositional
departure and at sentencing argued in support while the State argued against it. Under
these circumstances, we conclude there was nothing to establish an agreed-upon sentence
under subsection (c)(2).

The State also argues States v. Williams, 37 Kan. App. 2d 404, 153 P.3d 566
(2007), supports its position. There, the defendant appealed the denial of his dispositional
and durational departure motion, and the Court of Appeals panel dismissed for lack of
jurisdiction. But Williams is readily distinguishable, primarily because the sentences
imposed were within the presumptive sentencing ranges and therefore unappealable
under K.S.A. 21-4721(c)(1).

Judgment of the Court of Appeals summarily dismissing the case for lack of
jurisdiction is reversed, and the case is remanded to the Court of Appeals for
consideration of the merits.

MORITZ, J., not participating.