State v. Warren (Court of Appeals)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,489

STATE OF KANSAS,
Appellee,

v.

WADDELL WARREN,
Appellant.

SYLLABUS BY THE COURT

1.
Under K.S.A. 21-4721(c)(1), Kansas appellate courts do not have jurisdiction to
hear the appeal of a presumptive criminal sentence. But when a district court
misinterprets its own statutory authority and explicitly refuses to consider a defendant's
request for a discretionary, nonpresumptive sentence that the district court has statutory
authority to consider, the appellate court may take up the limited question of whether the
district court properly interpreted the sentencing statute.

2.
When sentencing a defendant for illegally possessing contraband in a prison in
violation of K.S.A. 21-3826, the district court may, in an appropriate case, grant a
departure sentence based on the small quantity of contraband involved and the statutory
authority of K.S.A. 21-4716(c)(1)(E), which allows a departure sentence when the degree
of harm from the crime is significantly less than typical for such an offense.

Review of the judgment of the Court of Appeals in 47 Kan. App. 2d 57, 270 P.3d 13 (2012).
Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed July 12, 2013. On the
single issue subject to our review, judgment of the Court of Appeals vacating the sentence and remanding
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with directions is affirmed. Judgment of the district court on that issue is reversed, the sentence vacated,
and the case is remanded with directions.

Ryan Eddinger, of Kansas Appellate Defender Office, was on the brief for appellant.

Amanda G. Voth, assistant district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.

Per Curiam: Waddell Warren was convicted of introducing a controlled substance
into a correctional facility and sentenced to an additional 122 months in prison. Warren
requested that he be given a departure sentence because the amount of marijuana found in
his socks was very small. The district court ruled that it could not consider a lesser
sentence on that basis.

Warren appealed, claiming: (1) the district court erroneously concluded it could
not even consider whether to grant a downward departure sentence to Warren based on
the small amount of drugs he possessed, and (2) Warren's speedy trial rights were
violated because he was not brought to trial within the time limits set by the Uniform
Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq.

The Court of Appeals held that it had jurisdiction to review the decision of the
district court to deny Warren's motion for a downward departure. The panel further held
that while the decision of whether the district court actually should grant a departure
sentence to Warren was a matter of discretion, the decision on whether the amount of
drugs could be considered was an issue of law. The Court of Appeals affirmed the
judgment of the district court in part, vacated the sentence entered by the district court,
and remanded the case with directions to resentence the defendant in accordance with its
opinion.

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The State petitioned for our review, challenging only the sentencing issue. This
court granted the State's petition for review; and we now dispose of the issue without oral
argument under Kansas Supreme Court Rule 8.03(h)(3) (2012 Kan. Ct. R. Annot. 76).

We conclude that the Court of Appeals was correct. We, therefore, adopt the
following from Judge Steve Leben's well-written opinion on behalf of the panel of our
Court of Appeals:

"We face two primary questions in deciding Warren's appeal. First, we must
determine whether we have jurisdiction to consider the appeal at all. Warren received the
presumptive sentence for his offense and criminal-history score, and we have no
jurisdiction to review a presumptive sentence. K.S.A. 21-4721(c)(1). Second, if we do
have jurisdiction, we must determine whether the district court's ruling that a less-than-
guidelines sentence cannot be given based on the amount of drugs was correct.

. . . .

"I. We Have Jurisdiction to Consider the Limited Question Presented in this Appeal,
Even Though the Defendant Received a Presumptive Sentence.

"We begin with the jurisdictional question. To determine the answer, we must
consider the language of K.S.A. 21-4721(c)(1) as well as the holdings in three cases:
State v. Huerta, 291 Kan. 831, 247 P.3d 1043 (2011); State v. Dillon, 44 Kan. App. 2d
1138, 244 P.3d 680 (2010); and State v. Cisneros, 42 Kan. App. 2d 376, 212 P.3d 246
(2009).

"K.S.A. 21-4721(c)(1), as it stood at the time Warren filed his appeal, provided
that an 'appellate court shall not review . . . [a]ny sentence that is within the presumptive
sentence for the crime . . . .' As our Supreme Court explained in Huerta, this statutory
provision represented an intention to remove presumptive sentences from appellate
review, even when appeals were based on a claim of prejudice, corrupt motive, or an
error involving a constitutional right. 291 Kan. at 835-37, 838. Thus, the court instructed
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in Huerta that a presumptive sentence could not be appealed based on a claim that an
individual presumptive sentence was unconstitutional for some reason. 291 Kan. 831,
Syl. ¶ 3. And the court in Huerta specifically disapproved our decision in Dillon, which
had considered an appeal on the basis that the district judge had refused to consider the
constitutionality of the sentence. Huerta, 291 Kan. at 839-41.

"But Warren is not raising a constitutional due-process argument or an argument
that his presumptive sentence was unconstitutionally severe based on his facts. Warren
instead argues that his appeal may be heard because the district court misinterpreted its
sentencing options, the same argument our court ruled upon in Cisneros.

"In Cisneros, the defendant initially received probation, but the probation was
revoked and the defendant was sent to prison to serve his original 155-month sentence.
At the probation-revocation hearing, the defendant asked the district court to enter a
lesser sentence, but the judge said that was 'not within my power here.' 42 Kan. App. 2d
at 377. In fact, however, K.S.A. 22-3716(b) allows the district court to order the
defendant either to serve the original sentence 'or any lesser sentence' when probation is
revoked. When Cisneros appealed, the State argued that our court lacked jurisdiction to
consider the appeal because Cisneros had received a presumptive sentence. But our court
considered the appeal a question of statutory interpretation rather than a review of a
presumptive sentence:

'. . . Cisneros is not appealing the term or length of his sentence so much
as he is appealing the district court's judgment that it had no power to
reduce his sentence upon revoking his probation. This is a question of
law that we have jurisdiction to consider on appeal. If we were to dismiss
the appeal for lack of jurisdiction as the State requests, then Cisneros
would have no remedy to determine whether the district court properly
applied K.S.A. 22-3716(b) in his case.' 42 Kan.App.2d at 379.

"[The Court of Appeals] reversed, explaining that the district court had misunderstood its
statutory authority. The case was remanded for resentencing, but the district court was
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free to enter whatever sentence it found appropriate, though it would understand on
remand that the original sentence was not its only option.
"If Cisneros is still good law, then Warren is entitled to be heard on appeal
because he presents essentially the same argument that we addressed there. In Cisneros,
the district judge said, 'I don't have the power to lower [the sentence]. That is not within
my power here.' 42 Kan. App. 2d at 377. But under the applicable statute, K.S.A. 22-
3716(b), the district judge in Cisneros did have the power to give Cisneros a lesser
sentence upon revoking his probation. In Warren's case, the district judge also held that
he did not have the power to reduce Warren's sentence. Warren's judge identified the
question of whether the small amount of drugs can be 'a legally sufficient reason' to
depart, but concluded, 'I do not believe that meets the statutory factor, or factors[,] and
[is] legally sufficient to constitute a substantial and compelling reason for departure, the
amount of drugs involved.' And in Warren's case, as in Cisneros, Warren makes the
argument that under the applicable statute, K.S.A. 21-4716(c)(1)(E), the judge in
Warren's case did have the power to give him a lesser sentence.
"In both Warren's case and in Cisneros, then, the appeal was based on the claim
that the district court misinterpreted a statute and thus unduly limited its own statutory
authority when sentencing the defendant. We see no meaningful distinction between the
two cases, so we must now determine whether Cisneros is still good law given the
Kansas Supreme Court's decision in Huerta. We must determine the jurisdictional issue
before addressing the merits of Warren's claim. Huerta, 291 Kan. at 840-41.

"The rulings made in Huerta do not undermine the continued validity of
Cisneros. In Huerta, the court decided three issues: (1) the lack of appellate jurisdiction
to consider an appeal of a presumptive sentence under K.S.A. 21-4721(c)(1) does not
violate equal-protection rights; (2) the defendant had abandoned any due-process
challenge to K.S.A. 21-4721(c)(1); and (3) a criminal defendant's claim that the sentence
amounts to some constitutional violation does not give the defendant the right to appeal a
presumptive sentence. 291 Kan. 831, Syl. ¶¶ 1-3. None of these rulings deals with the
question that was presented in Cisneros, which was whether an appellate court may set
aside a sentence and order reconsideration of the sentence by the district court when that
court has explicitly misinterpreted its own statutory sentencing authority.
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"But we must also consider some comments made about Cisneros in one section
of the Huerta opinion. In that section, the Huerta court was considering—and
disapproving—our court's opinion in the Dillon case. In Dillon, our court had ruled that
when a defendant asks for a departure sentence on constitutional grounds and the district
court explicitly refuses to consider that argument, the sentence may be set aside and the
case sent back for resentencing because the court had denied due process to the
defendant. 44 Kan. App. 2d 1138, Syl. ¶ 2. But our Supreme Court disagreed and
announced its disapproval of Dillon in Huerta, where it also said that the Dillon court had
been wrong to rely upon Cisneros as part of the rationale for the Dillon ruling:

'Dillon also relied on a prior Court of Appeals decision, State v.
Cisneros, 42 Kan. App. 2d 376, 212 P.3d 246 (2009), which it read to
grant appellate jurisdiction to review a presumptive sentence when the
district judge had misunderstood the limits of his or her discretion in
sentencing after a revocation of probation. Dillon, 44 Kan. App. 2d at
1145. In Cisneros, the defendant appealed because the district judge
believed he had no power to reduce Cisneros' sentence upon a probation
revocation, despite language to the contrary in K.S.A. 22-3716(b). The
Court of Appeals determined that this was a question of law over which
it had jurisdiction. 42 Kan. App. 2d at 379. The court went on to state
that, if it dismissed Cisneros' appeal for lack of jurisdiction under K.S.A.
21-4721(c)(1), '"then Cisneros would have no remedy to determine
whether the district court properly applied K.S.A. 22-3716(b) in his
case.'" 42 Kan. App. 2d at 379. Cisneros is plainly factually and
procedurally distinct from the situation before the Court of Appeals in
Dillon, and Dillon's reliance on Cisneros was misplaced.' Huerta, 291
Kan. at 840.

"To be sure, our Supreme Court indicated that our court had been wrong to rely upon the
Cisneros holding as a basis for our conclusion in Dillon that a presumptive sentence
could sometimes be appealed if the district court had refused to consider a potentially
viable constitutional issue at sentencing. But the Dillon case presented a different
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question than presented in Cisneros, and the Huerta court does not make any criticism of
the Cisneros holding. Indeed, another panel of our court concluded that '[t]he Huerta
court, by specifically distinguishing Cisneros from Dillon, tacitly approved the
jurisdictional exception set forth in Cisneros.' State v. Monroe, No. 104,822, 2011 WL
6942941, at *3 (Kan. App. 2011) (unpublished opinion).
"We conclude that the rationale of Cisneros is solid and that its holding has not
been undercut by the Huerta decision. In both Huerta and Dillon, the defendants sought
appellate review based on a constitutional claim, while in both Cisneros and in Warren's
case the defendants seek review only regarding a misinterpretation allegedly made by the
district court of its own authority under the sentencing statutes. We therefore have
jurisdiction to consider the limited argument made here by Warren—that the district court
wrongly interpreted its statutory sentencing authority and therefore refused to consider
matters before it that were potentially relevant to the sentence.

"II. The District Court Could Have Given Warren a Downward-Departure Sentence But
Wrongly Refused to Consider That Possibility Because It Misinterpreted a Sentencing
Statute.

"We turn then to the merits of the appeal—whether the district court had
statutory authority to consider Warren's request for a lesser sentence. The sentencing
guidelines called for one of three sentences: 122 months (the mitigated sentence), 130
months (the standard sentence), or 136 months (the aggravated sentence). The district
court chose the mitigated number, 122 months.

"Warren had asked for a downward-durational-departure sentence of 40 months
based on his claim that the degree of harm was less than typical because the amount of
drugs involved was so small. K.S.A. 21-4716(c)(1)(E) allows a departure sentence when
'[t]he degree of harm . . . attributed to the current crime of conviction was significantly
less than typical for such an offense.' But the district court held that it had no authority to
depart based on the amount of drugs because the statute prohibits any contraband in a
prison and no specific amount threshold is found in the statute.

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"The question we must address is whether a lesser, or departure, sentence can
ever be granted based on the small quantity of drugs involved when sentencing a
defendant for bringing contraband into a prison in violation of K.S.A. 21-3826. We
review that question independently, without any required deference to the district court,
because the question is one of statutory interpretation. See State v. Spencer, 291 Kan.
796, 807, 248 P.3d 256 (2011). So the question before us is: Can the small quantity of
drugs in a prison-contraband case constitute a substantial and compelling reason to depart
under K.S.A. 21-4716(c)(1)(E) because the degree of harm is significantly less than
typical for such an offense?

"The State argues that because the law bans all contraband, no matter the
quantity, that having a small quantity is just as bad as a large one—all contraband is
inherently dangerous. It's certainly true that the law forbids any contraband in prison,
regardless of amount. But we see no reason that the quantity of drugs may not be taken
into account as a sentencing-departure factor, just as it may be in nonprison cases
involving drug possession. See State v. Davis, 262 Kan. 711, 941 P.2d 946 (1997)
(finding that district court could enter upward departure sentence in part based on large
quantity of drugs involved).

"We note too that our court has previously held that a downward-durational-
departure sentence could be given based on the small quantity of drugs involved in a
prison-contraband case. In an unpublished decision in another case from Reno County,
our court affirmed a downward-departure sentence of 20 months, rather than the
guidelines' 40- to 46-month range, when the inmate possessed only two small marijuana
cigarettes and the district court had found that a substantial and compelling reason to
depart. State v. Myers, No. 90,525, 2004 WL 1176634 (Kan. App. 2004) (unpublished
opinion). In that opinion, our court provided a cogent rejection of the State's argument
that quantity should not be an available departure factor since the possession of any
contraband violates the law:

'The issue is not what is required for a conviction, but what is typical in
such a conviction. Myers was convicted under K.S.A. 2003 Supp. 21-
3826, which defines traffic in contraband in a correctional institution. It
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covers not only possession, but other activities such as bringing
contraband into the institution, sending contraband from the institution,
and distributing contraband within the institution. Apparently Myers was
not a dealer but an end-user at the end of the distribution chain. Myers'
possession of two small marijuana cigarettes was a valid departure factor
under K.S.A. 2003 Supp. 21-4716(c)(1)(E).' 2004 WL 1176634, at *2.

"We conclude that the possession of only a small quantity of drugs constitutes a valid
factor upon which a departure sentence may be entered on a prison-contraband
conviction.
"We express no opinion on whether the district court actually should grant a
departure sentence to Warren. That is a discretionary call to be made by the district court,
not the appellate court. See Spencer, 291 Kan. 796, Syl. ¶ 6. But the district court in
Warren's case wrongly concluded that it could not even consider this issue. We therefore
remand for resentencing so that the district court may properly exercise the discretion
given to it by statute." State v. Warren, 47 Kan. App. 2d 57, 58-64.

Based on this reasoning, the judgment of the Court of Appeals is affirmed. The
sentence entered by the district court is vacated, and the case is remanded to the district
court with directions to resentence the defendant in accordance with this opinion.