Opinion
112,427.
05-08-2015
STATE of Kansas, Appellee, v. Robert L. BOATWRIGHT, Appellant.
MEMORANDUM OPINION
PER CURIAM.
In this sentencing appeal, Robert L. Boatwright challenges the district court's decision to approve the parties' joint sentencing recommendation and impose an upward dispositional departure sentence. Boatwright moved for summary disposition pursuant to Supreme Court Rule 7.041 A (2014 Kan. Ct. R. Annot. 66), and we granted leave to proceed without briefing. Because we find that we lack jurisdiction to consider Boatwright's claim, we dismiss his appeal.
Boatwright pled guilty, without the benefit of a plea agreement, to one count of making a criminal threat, in violation of K.S.A.2014 Supp. 21–5415(a)(1), against his live-in girlfriend, Deanna L. Trotter. At the plea hearing, Boatwright described his relationship with Trotter as follows: “We were going to get married, and in some states legally we are married because we've lived together long enough. And I still want to marry her.” Accordingly, because Boatwright had threatened to commit an act of violence against a household member with whom he had been dating, the district court designated his crime as a domestic violence offense. See K.S.A.2014 Supp. 22–4616.
Boatwright's case proceeded to sentencing on June 27, 2014, and based upon his criminal history classification of I, the presumptive sentence for his crime ranged from 5 to 7 months' probation. K.S.A.2013 Supp. 21–6804(a). When the district judge asked Boatwright's counsel, Seth L. Rundle, for his sentencing recommendation, Rundle asked the court to address Boatwright directly on this issue. According to Rundle, Boatwright had been planning to request probation under Trotter's supervision because he had been “hoping that they would be able to go forward with their plans to be married,” but it had recently become “abundantly clear that Ms. Trotter had decided that she would not, at any point, ever be in a relationship with Mr. Boatwright again.” This fact “seemed to be pretty devastating to Mr. Boatwright.” Consequently, Rundle wanted to give Boatwright the opportunity to express whether he wanted the district court to follow the presumption or to make the finding that he was not amenable to probation and impose a prison sentence.
The district judge subsequently asked Boatwright if he wished to make any remarks on his own behalf, and in response, Boatwright stated, “Your Honor, I won't take probation.... You can just throw me in jail until it's over with.” Confused by Boatwright's request, the district judge attempted to “talk [Boatwright] into taking probation” by informing him that he would face State supervision regardless of whether he went to prison because his sentence included a period of postrelease supervision equivalent to his presumptive 12–month probationary term. The following discussion occurred between the district judge and Boatwright:
“[BOATWRIGHT]: Now, I got this to say: Even parole for 12 months, I do not have to do. I can stay in jail the rest of my life.
“THE COURT: So your thought
“[BOATWRIGHT]: But I ain't [sic ] going to take parole or probation to anybody.
“THE COURT: And you absolutely don't want to do that, then; is that right?
“[BOATWRIGHT]: Yeah.
“THE COURT: Okay. All right.
“[BOATWRIGHT]: So you can put me In jail. That's it.
“THE COURT: And that's what you're asking for?
“[BOATWRIGHT]: You guys give me the wrong phone numbers. I can't talk to her or anything.
“THE COURT: Well
“[BOATWRIGHT]: But that's my fault. It's all my fault.
“THE COURT: So do you want to be put in jail on this?
“[BOATWRIGHT]: Whatever you want
“THE COURT: Well
“[BOATWRIGHT]:—because I'm not
“THE COURT: I'm trying to talk you into taking probation
“[BOATWRIGHT]: Well, yeah.
“THE COURT:—but I'm not having much luck on it.
“[BOATWRIGHT]: Okay.
“THE COURT: And the reason that I'm trying to talk you inter taking probation is you're going to be supervised for 12 months
“[BOATWRIGHT]: Okay.
“THE COURT:—whether you go to jail and get out or whether you don't go to jail. It's going to be supervised for 12 months either way.
“[BOATWRIGHT]: Okay. You go ahead and do what you want.”
The State subsequently concurred with Boatwright's request for an upward dispositional departure, as Boatwright's statements seemed to be “a clear indication” that he would not be amenable to probation, and the State opined that the supervisory conditions associated with postrelease supervision would be less onerous than those imposed upon a probationer. In the event the district judge determined probation was an appropriate sanction for Boatwright, the State requested supervision by Community Corrections Field Services in conjunction with an electronic monitoring device and an order prohibiting Boatwright from having any contact with Trotter.
After the State expressed its sentencing recommendation, Rundle asked the district judge if he would be willing to transfer Boatwright's probation to Montana via an interstate compact agreement because Boatwright had moved to Kansas from Montana to be with Trotter. Although the district judge indicated that he might be willing to consider such a request in the future if Boatwright “ke[pt his] nose clean,” he refused to authorize an interstate compact agreement “right off the bat.” In response, Boatwright began shaking his head, and following an off-the-record discussion between Boatwright and counsel, Rundle stated, “Your Honor, Mr. Boatwright has indicated that because he does not have anywhere to live here—he anticipates not being allowed to have contact with Ms. Trotter—that he is asking the Court to impose the prison sentence instead of probation.” The following discussion then ensued:
“THE COURT: Now, we've gone back and forth a couple times, several times, and I'm fine with that, and if you feel that you stand the best chance of succeeding in life by going to prison, if that's correct—is that right?
“[BOATWRIGHT]: Well, I want to go back to Montana. I can
“THE COURT: I'm not going to let you do—I won't let you do that. Not at this time.
“[BOATWRIGHT]: I can walk out the door and be in Montana, and you'd have to extradite me back and spend more money, and you ain't [sic ] going to get nothing, anyway.
“THE COURT: All right. I'm going to sentence you to prison instead.
“[BOATWRIGHT]: Okay.”
Consequently, the district court imposed an upward dispositional departure sentence of 6 months' incarceration followed by 12 months' postrelease supervision. Although not controlling, the journal entry of sentencing reflects that the district court departed from the sentencing guidelines because (1) Boatwright “desire[d] to serve [a] prison sentence” and (2) his “statements to the Court that he [would] not do probation and [would] abscond from the State of Kansas indicate[d] that [he was] not amenable to probation programs.”
Boatwright timely appealed, contending, without elaboration, that the district court “erred in finding there [were] substantial and compelling reasons for imposing an upward dispositional departure.” The State, on the other hand, urges us to dismiss Boatwright's appeal for lack of jurisdiction under K.S.A.2014 Supp. 21–6820(c)(1), which bars appellate courts from reviewing a presumptive sentence, or K.S.A.2014 Supp. 21–6820(c)(2), which prohibits defendants from appealing an agreed upon sentence. See K.S .A.2014 Supp. 21–6820(c). Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014).
Our Supreme Court recently found that “all departure sentences are subject to appeal under K.S.A. 21–4721(a) [now K.S.A.2014 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). Boatwright did not receive a presumptive sentence because the sentencing guidelines called for a nonprison sanction. Therefore, despite the State's assertion to the contrary, K.S.A.2014 Supp. 21–6820(c)(1) is not applicable. See K.S.A.2013 Supp. 21–6804(a). As Boatwright concedes in his motion for summary disposition, K.S.A.2014 Supp. 21–6820(c)(2) qualifies as a more specific provision that divests this court of jurisdiction because the statute specifically provides that 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.” “ ‘[W]here [K.S.A.2014 Supp. 21–6820(c)(2) ] applies, an appellate court's jurisdiction to consider a challenge to a sentence is limited to those grounds authorized by the statute or a claim that the sentence is otherwise illegal.’ [Citation omitted.]” State v. Duncan, 291 Kan. 467, 470, 243 P.3d 338 (2010).
While Boatwright did not receive a plea-negotiated sentence, his sentence still falls within the parameters of K.S.A.2014 Supp. 21–6820(c)(2) because it resulted from his request for an upward dispositional departure sentence, the State's concurrence with this request, and the district court's subsequent decision to affirm the parties' joint sentencing recommendation on the record. Boatwright has not alleged that his sentence is illegal. Instead, he simply asserts that the district court erred in finding that substantial and compelling reasons to depart existed in this case. See State v.. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013) (issues the appellant fails to brief are deemed waived and abandoned). Consequently, we have no jurisdiction to review Boatwright's sentence.
Appeal dismissed.