Opinion
No. 108,413.
2013-06-7
STATE of Kansas, Appellee, v. Kerry Wayne ANDERSON, Appellant.
Appeal from Atchison District Court; Martin J. Asher, Judge. Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Atchison District Court; Martin J. Asher, Judge.
Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON, J., and JAMES L. BURGESS, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Kerry Wayne Anderson appeals his sentence following his no contest plea to felony theft. Anderson claims the district court erred in denying his request for a departure sentence. Specifically, Anderson argues that the district court incorrectly assumed it could not grant a departure without a written motion being filed. Anderson also claims his defense counsel was ineffective for failing to file a departure motion. Finding no merit to Anderson's claims, we affirm the district court's judgment.
On April 9, 2012, Anderson pled no contest to one count of felony theft under K.S.A. 21–3701. Under the plea agreement, the parties jointly recommended a 7–month sentence which constituted a 3–month downward departure. At the sentencing hearing, the judge asked why the parties were seeking a 7–month sentence when the appropriate range under the sentencing guidelines would be 9 to 11 months. Defense counsel responded, “We knew that was the range, Judge. But part of the plea agreement was to go down a couple months based on him being incarcerated already on his other counts.” At the conclusion of the hearing, the district judge then sentenced Anderson as follows:
“For the offense of felony theft, a Level 9 Nonperson Felony—the Court finds you fall in the E Category for criminal history—the Court sentences you to 10 months with the Secretary of Corrections.
“The Court has to stay within the guidelines.
“There's been no motion for departure.
“I don't see any grounds for departure, anyway.”
Anderson timely appealed his sentence. He first claims the district court erred in denying his request for a departure sentence. Anderson claims that the district court denied his departure request simply because his counsel failed to file a departure motion and this reason was based on an erroneous interpretation of the law. Specifically, Anderson argues that the district court erred in failing to recognize its authority to consider a departure motion sua sponte under K.S.A.2010 Supp. 21–4718(a)(3). To the extent that Anderson claims the district court failed to interpret and properly apply a statute, our review is de novo. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
The State claims that we have no jurisdiction to review Anderson's presumptive sentence. As a general rule, an appellate court shall not review a sentence for a felony conviction that is within the presumptive guideline sentence for the crime. K.S.A. 21–4721(c)(1). Thus, when a district court imposes a sentence within the presumptive guidelines for the crime, an appellate court generally lacks jurisdiction to consider an appeal when the district court denies a motion for departure. State v. Williams, 37 Kan.App.2d 404, 407–08, 153 P.3d 566,rev. denied 284 Kan. 951 (2007).
However, an exception to this general rule exists when the district court imposes a presumptive sentence and fails to recognize that it has discretion to impose a different sentence. See State v. Cisneros, 42 Kan.App.2d 376, 380–81, 212 P.3d 246 (2009) (appellate court had jurisdiction to consider appeal when district court failed to recognize its authority to modify defendant's sentence at probation revocation hearing); State v. Howard, 2012 WL 4121114, at *4 (Kan.App.2012) (unpublished opinion) (appellate court had jurisdiction to review district court's denial of departure motion when district court failed to recognize its authority to consider the motion). Thus, to the extent that the district court failed to recognize its authority to grant a departure sentence sua sponte, we have jurisdiction to consider Anderson's claim on appeal.
Nevertheless, we find no merit to Anderson's argument. Here, Anderson takes issue with the district court's statements at the sentencing hearing that the court must “stay within the guidelines” and that “no motion for departure had been filed.” According to Anderson, these statements run contrary to K.S.A.2010 Supp. 21–4718(a)(3), which permits a district court to consider a departure sentence without a motion from either party. But immediately following these two statements, the district judge said, “I don't see any grounds for departure anyway.” This statement indicates that the district court recognized it had discretion to grant a downward departure but opted not to do so. Thus, the district court did not erroneously interpret the law, and the district court did not err in denying Anderson's request for a downward departure.
Next, Anderson claims that his defense counsel was ineffective for neglecting to file a motion for a downward departure sentence. Generally, an appellate court will not consider an allegation of ineffective assistance of counsel raised for the first time on appeal. See Rowland v. State, 289 Kan. 1076, 1084, 219 P.3d 1212 (2009); Trotter v. State, 288 Kan. 112, Syl. ¶ 10, 200 P.3d 1236 (2009). Only in “extremely rare” or “extraordinary” circumstances will an appellate record be sufficient to analyze an ineffective assistance of counsel claim for the first time on appeal. Rowland, 289 Kan. at 1084–85;Trotter, 288 Kan. at 128–29;State v. Gleason, 277 Kan. 624, 649–50, 88 P.3d 218 (2004). But in this case, we find that the record is sufficient to analyze Anderson's ineffective assistance of counsel claim for the first time on appeal.
To establish ineffective assistance of counsel, the defendant must first establish that counsel's performance was constitutionally deficient. This requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that counsel's deficient performance prejudiced the defense. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). Here, even assuming that Anderson's counsel's performance was deficient for failing to file a departure motion, the district judge stated that he did not see any grounds for departure anyway. Based on the record, Anderson is unable to establish that his counsel's deficient performance prejudiced the defense. Thus, his claim of ineffective assistance of counsel is without merit. See Harris, 288 Kan. at 416.
Affirmed.