State v. Dillon

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No. 102,724

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WILLIAM D. DILLON,
Appellant.


SYLLABUS BY THE COURT

Under K.S.A. 21-4721(c)(1), appellate courts do not have jurisdiction to review
presumptive sentences. A criminal defendant's allegation of some constitutional error in
an individual presumptive sentence does not confer jurisdiction on an appellate court to
consider an appeal.

Appeal from Shawnee District Court; Richard D. Anderson, judge. Opinion filed June 17, 2011.
Appeal dismissed.

Ryan Eddinger, of Kansas Appellate Defender Office, for appellant.

Chadwick J. Taylor, district attorney, Natalie Chalmers, assistant district attorney, and Derek
Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., MARQUARDT and LEBEN, JJ.

LEBEN, J.: We revisit this case on remand from the Kansas Supreme Court.
Previously, we had vacated the district court's sentence of William Dillon based on our
conclusion that the district court explicitly refused to consider the arguments upon which
Dillon sought a departure sentence. State v. Dillon, 44 Kan. App. 2d 1138, 244 P.3d 680
(2010). A majority of this panel concluded that the district court's refusal to consider
relevant factual arguments the defendant made in support of a departure sentence violated
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the defendant's due-process rights. Because of that, we concluded that an appeal could be
heard despite the normal rule that a defendant may not appeal a departure sentence.

The Kansas Supreme Court summarily reversed our decision and remanded for
further consideration in light of State v. Huerta, 291 Kan. 831, 247 P.3d 1043 (2011).
Having considered supplemental briefs from the parties and Huerta, we now dismiss
Dillon's appeal for lack of jurisdiction.

As all parties recognize, the district court gave Dillon a presumptive sentence:
sentencing guidelines called for a prison sentence, not probation, and the court gave
Dillon a sentence within the range called for by the guidelines. And the legislature has
provided in K.S.A. 21-4721(c)(1) that an "appellate court shall not review . . . [a]ny
sentence that is within the presumptive sentence for the crime." This restriction is
important because the right to appeal in Kansas is limited to what is provided by statute;
Kansas courts have not recognized any constitutional right to an appeal. State v. Gill, 287
Kan. 289, 293-94, 196 P.3d 369 (2008).

Before Huerta, the panel majority had understood that there was a limited
exception when the district court denied due process to the defendant at sentencing. But
in the Huerta decision, rendered 4 months after our first decision in Dillon's case, our
Supreme Court said that we had overextended the cases suggesting exceptions. 291 Kan.
at 839-40. The Huerta court also set out a clear rule for us to apply: "A criminal
defendant's allegation of constitutional infirmity in an individual presumptive sentence
does not make the sentence amenable to direct appeal under K.S.A. 21-4721(c)(1)." 291
Kan. 831, Syl. ¶ 3.

Dillon's case fits squarely within that rule. He argues that his own presumptive
sentence violated his constitutional due-process right to have the district court consider
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the legally relevant arguments he made. We do not have jurisdiction to consider his
appeal under Huerta.

In his supplemental post-Huerta brief, Dillon tries to recharacterize his appeal as a
motion to correct illegal sentence. But he had not previously raised this argument, and
our Supreme Court has also said that "a defendant may not file a motion to correct an
illegal sentence based on constitutional challenges to his or her sentence." State v.
Mitchell, 284 Kan. 374, 377, 162 P.3d 18 (2007).

Dillon's appeal is therefore dismissed for lack of jurisdiction.