Opinion
110,840.
11-21-2014
STATE of Kansas, Appellee, v. Roger DANIELS, Appellant.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Roger Daniels pled guilty to one count of offender registration violation in case No. 13–CR–960. Daniels also pled guilty to one count of theft in case No. 13–CR–1488. He filed a motion for a dispositional and durational sentencing departure, which the district court denied. Although he pled on the same day in both cases, the cases were never consolidated. Daniels filed a notice of appeal in case No. 13–CR–960. We affirm in part and dismiss in part.
On August 9, 2013, in case No. 13–CR–960, Daniels pled guilty to one count of offender registration violation for failing to register as required by the Kansas Offender Registration Act, K.S.A. 22–4901 et seq. In the same hearing, he also pled guilty to one count of felony theft in case No. 13–CR–1488. Daniels had a criminal history score of A.
Daniels filed a motion for a dispositional and durational sentencing departure. He argued the following factors as a basis for substantial and compelling reasons to depart: (1) by pleading guilty, he saved considerable resources; (2) by pleading guilty, he saved the police and taxpayers a significant amount of money; (3) he accepted full responsibility for his actions; (4) the majority of his prior crimes were motivated by a drug addiction and he would benefit by remaining in the community; (5) the community offers greater resources to help Daniels' “reformation”; (6) he suffers from addiction and prison will not offer the benefit of treatment; and (7) the punishment for failing to register is constitutionally unjust. The district court denied the motion, finding no substantial and compelling reasons existed to support a departure.
At sentencing on October 4, 2013, the district court noted that Daniels' presentencing investigation report “looks absolutely outrageous, just because there's so many entries.” Many of the entries were for failing to appear at his court dates. The court therefore found that Daniels was not “a particularly good candidate for any kind of probation.” The court again stated that Daniels' motion for departure was denied.
Daniels faced up to 63 months in jail for the two convictions. The offender registration violation is severity-level 6 person felony. Based on his criminal history score, the presumptive sentence range was 40–46 months. The district court sentenced Daniels to 40 months on that charge—a presumptive sentence. The theft charge was a severity-level 9 nonperson felony. The presumptive sentence range for that charge was 15–17 months. The court sentenced Daniels to 15 months in jail, again a presumptive sentence. The court ran the two sentences concurrent with each other, but consecutive to any other cases Daniels might have. His total sentence was within the presumptive sentence allowed for his convictions. The court also ordered Daniels to pay $500 restitution in the theft case.
On October 7, 2013, Daniels, through his public defender, filed a notice of appeal. The case caption referenced only case No. 13–CR–960. The language of the notice included the following: “Notice is hereby given by the Defendant, Roger Daniels, by and through his attorney, ... of his intention to appeal the sentence and all adverse rulings entered by the District Court in the above case ....“ (Emphasis added.) Again, case No. 13–CR–960 was the offender registration violation charge. The record does not include a notice of appeal for the theft case, case No. 13–CR–1488.
Daniels first argues the district court abused its discretion when it ordered him to pay restitution.
“Issues regarding the amount of restitution and the manner in which it is made to the aggrieved party are normally subject to review under an abuse of discretion standard.” State v. Hall, 297 Kan. 709, 711, 304 P.3d 677 (2013). However, before we can get to the issue of restitution, we must have jurisdiction.
Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).
The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. See State v. J.D.H., 48 Kan.App.2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251 (2013). An appellate court only obtains jurisdiction over the rulings identified in the notice of appeal. State v. Garza, 295 Kan. 326, 329, 286 P.3d 554 (2012). The filing of a timely notice of appeal is jurisdictional, and if the appeal is not taken within the 14–day period fixed by statute, it must be dismissed. K.S.A.2013 Supp. 22–3608(c). A limited exception to this general rule is recognized in the interest of fundamental fairness only in those cases where an indigent defendant: (1) was not informed of the rights to appeal; (2) was not furnished an attorney to perfect an appeal; or (3) was furnished an attorney for that purpose who failed to perfect and complete an appeal. State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008) ; State v. Ortiz, 230 Kan. 733, 735–36, 640 P.2d 1255 (1982).
Daniels was ordered to pay restitution based on the theft charge in case No. 13–CR–1488. However, his notice of appeal only indicated his intent to appeal “the sentence and all adverse rulings entered by the District Court in the above case.” The only case number identified in the caption was 13–CR–960. No second notice of appeal appealing 13–CR–1488 can be located in the record. Additionally, the two cases were never consolidated. In fact, the record specifically indicates on multiple occasions that the two cases were not consolidated. Daniels' acknowledgements of rights and entry of plea includes a handwritten notation in the margin specifically mentioning that the two cases—13–CR–960 and 13–CR–1488—are not consolidated. At the plea hearing, the district court again noted that the two cases were not consolidated. At the motion hearing on Daniels' motion for departure and sentencing, the court again noted that the two cases were not consolidated.
Because Daniels never properly filed a notice of appeal in the underlying case, 13–CR–1448, and because Daniels failed to argue any of the limited exceptions are applicable, we are without jurisdiction to consider the claim. See Lee Builders, Inc. v. Farm Bureau Mut Ins. Co., 281 Kan. 844, 859, 137 P.3d 486 (2006) (An argument not briefed is deemed abandoned.).
Daniels next argues the district court abused its discretion when it denied his motion for departure.
K.S.A.2013 Supp. 21–6820(c) provides that an appellate court shall not review on appeal a sentence for a felony conviction that is (1) within the presumptive guidelines sentence for the crime, or (2) the result of a plea agreement between the State and the defendant which the district court approved on the record. Therefore, appellate courts lack jurisdiction to review challenges to presumptive sentences. State v. Sprung, 294 Kan. 300, 317, 277 P.3d 1100 (2012).
“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.” State v. Huerta, 291 Kan. 831, 835, 247 P.3d 1043 (2011). In this case, Daniels filed a motion for a dispositional and durational departure. The district court denied that motion finding no substantial and compelling reasons to depart, and sentenced Daniels to a presumptive sentence.
It is already established that we are without jurisdiction to consider Daniels' appeal from the sentence in 13–CR–1488, so we can only consider the sentence Daniels received in 13–CR–960. Daniels pled guilty to one count of offender registration violation in 13–CR–960, a level 6 person felony. Daniels' criminal history was a score of A. Therefore, the presumptive sentence was 40–46 months. The district court sentenced him to 40 months, a sentence within the presumptive range.
Daniels attempts to analogize the sentence he received to a “partial departure” in an effort to establish that we have jurisdiction to consider his appeal. See Huerta, 291 Kan. at 836 (“The only defendants permitted to appeal are ... those who seek a downward departure to a specific term and who receive the departure but to a term longer than the one sought....”). Daniels argues the district court's decision to sentence him at the low end of the presumptive range is like a partial departure because it could have sentenced him to a much greater sentence. However, the court's decision not to sentence Daniels to the aggravated sentence within the presumptive range does not entitle him to appeal the denial of his motion for departure. The record clearly establishes Daniels filed a motion for departure, the court denied that motion, and the court sentenced him to a presumptive sentence. Therefore, we lack jurisdiction to consider Daniels' challenge to his presumptive sentence.
Daniels' final issue on appeal is that the district court violated the rights guaranteed to him by the Sixth and Fourteenth Amendments to the United States Constitution when it sentenced him to an increased sentence based upon his prior criminal history without requiring the State to put his history before a jury and prove it beyond a reasonable doubt. Daniels cites Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in support of this argument.
However, our Supreme Court has already determined that the use of criminal history to calculate the presumptive sentence within the guidelines does not violate due process as interpreted by Apprendi . See, e.g. State v. Benson, 295 Kan. 1061, 1068, 287 P.3d 927 (2012) (affirming State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 [2002] ).
Affirmed in part and dismissed in part.