Opinion
No. 109,323.
2013-11-8
STATE of Kansas, Appellee, v. Jacob E. WATIE, Appellant.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge. Mark T. Schoenhofer, of Wichita, for appellant. Julie A, Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.
Mark T. Schoenhofer, of Wichita, for appellant. Julie A, Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jacob E. Watie appeals his sentences on the ground that the district court erred when it failed to acknowledge evidence giving rise to border box findings. Because we find that Watie's sentences are within the presumptive sentencing range for his crimes of conviction, his appeal is dismissed for lack of jurisdiction.
On November 5, 2012, Watie pled guilty to one count of possession of cocaine with intent to distribute and one count of possession of heroin with intent to distribute. In exchange for Watie's guilty plea, the State promised to recommend the low presumptive sentence of imprisonment on each count to run consecutively. Watie was free to seek an alternative sentence.
Watie's sentencing hearing was scheduled for January 9, 2013. The presentence investigation report placed Waitie's primary crime of conviction in a border box of the sentencing guidelines grid for drug offenses, specifically, grid block 3–G. At the sentencing hearing, Watie presented evidence in the form of a letter written by his substance abuse counselor. The counselor stated her opinion that Watie's continued participation in drug treatment would be beneficial to his rehabilitation and would help to reduce his risk of recidivism. Based on this evidence, Watie asked the district court to make border box findings and impose a nonprison sentence.
After hearing from both counsel and giving Watie an opportunity to address the court, the judge stated that he was not convinced that the consecutive sentences recommended by the State were necessary. However, the judge concluded that the “serious nature of the charges” warranted a presumptive prison sentence. The district court sentenced Watie to the low presumptive sentence in each of the grid boxes: 20 months' imprisonment for the cocaine conviction and 14 months' imprisonment for the heroin conviction. The district court ordered that the sentences be served concurrently. Watie timely appealed his sentence.
On appeal, Watie contends he was illegally sentenced because the district court failed to acknowledge evidence giving rise to border box findings and thus failed to consider the range of sentencing alternatives at its disposal as required by K.S.A.2011 Supp. 21–6601 and K.S.A.2011 Supp. 21–6802. The State responds by noting that Watie received presumptive sentences and argues that this court lacks jurisdiction to consider the appeal.
Whether a sentence is illegal is a question of law over which an appellate court's review is unlimited. State v. Gracey, 288 Kan. 252, 261, 200 P.3d 1275 (2009). Also, whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).
Watie's primary crime of conviction fell in the border box of the sentencing guidelines grid for drug offenses. Accordingly, although the presumptive sentence for each offense is prison, the district court could have imposed a nonprison sentence after making the appropriate findings. See K.S.A.2011 Supp. 21–6804(q)(1)–(3); K.S.A.2011 Supp. 21–6805(d). The plain language of these statutes requires that a district court make border box findings only when it decides to order the nonprison sanction. See State v. Serrano–Garcia, No. 103,651, 2011 WL 4357804, at *2 (Kan.App.2011) (unpublished opinion). This court has previously determined that such findings “are simply not required for the imposition of the presumptive sentence of imprisonment.” State v. Schul, No. 94,421, 2006 WL 1379646, at *2 (Kan.App.2006) (unpublished opinion), rev. denied 282 Kan. 795 (2006).
Watie contends that the district court erred when it failed to acknowledge evidence giving rise to border box findings. Watie argues that unless a sentencing court acknowledges on the record that it considered evidence that directly addresses border box findings, it is reasonable to assume the evidence was not given its proper weight and consideration. But here, the record reflects that the district court acknowledged the letter from Watie's substance abuse counselor, and the judge stated at the sentencing hearing that, “I did review it.” However, the judge concluded that the “serious nature of the charges” warranted presumptive prison sentences in Watie's case.
As the State contends, an appellate court lacks jurisdiction to review a sentence within the presumptive sentencing range for the defendant's crime of conviction. State v. LaBelle, 290 Kan. 529, 539, 231 P.3d 1065 (2010); K.S.A.2011 Supp. 21–6820(c)(1). Here, the sentences imposed by the district court were presumptive border box sentences. The district court was not required to make any findings in denying Watie's request for a nonprison sentence. Accordingly, this court lacks jurisdiction to consider Watie's appeal.
Appeal dismissed.