State v. Frecks

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 105,952

STATE OF KANSAS,
Appellee,

v.

MARK FRECKS,
Appellant.


SYLLABUS BY THE COURT

1.
This court has jurisdiction to consider whether the district court abused its
discretion in imposing consecutive life sentences pursuant to K.S.A. 21-4643.

2.
While it is certainly the better practice to include an explanation of its reasons
when the district court imposes consecutive life sentences, a sentencing judge's failure to
give a lengthy colloquy does not amount to an abuse of discretion.

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed July 13,
2012. Affirmed.

Joanna Labastida, of Kansas Appellate Defender Office, was on the brief for appellant.

Sheryl L. Lidtke, deputy district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

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ROSEN, J.: Mark Frecks pleaded guilty to two counts of off-grid aggravated
indecent liberties with a child, pursuant to a plea agreement in which the State agreed to
dismiss a third count and stand silent at sentencing. Frecks asked that the Jessica's Law
life sentences with 25-year mandatory minimums run concurrently, but the district court
judge imposed two consecutive life sentences with no possibility of parole for 50 years.
We first consider whether this court has jurisdiction to review the imposition of
consecutive life sentences for the aggravated indecent liberties. Because this court has
jurisdiction, we review whether the district court abused its discretion in imposing
consecutive life sentences in this case.

FACTUAL BACKGROUND

On November 26, 2009, Mark Frecks engaged in the lewd fondling and touching
of K.C., a child under the age of 14, with the intent to arouse himself. In February of
2010, Frecks engaged in similar acts with D.K., a child under the age of 14. Both victims
were cousins of Frecks. On November 2, 2010, Frecks entered a guilty plea to two counts
of aggravated indecent liberties. Pursuant to the plea agreement, the State dismissed a
third count of aggravated indecent liberties against a third child, which alleged similar
conduct.

At sentencing, Frecks requested that the sentences run concurrently. The State was
silent regarding the recommendation for sentence, as provided in the plea agreement. The
victims' parents made statements to the court regarding the impact of the crimes on their
children. The court imposed two consecutive life sentences without possibility of parole,
for a total of 50 years.



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DID THE DISTRICT COURT ABUSE ITS DISCRETION WHEN IT ORDERED FRECKS TO SERVE
CONSECUTIVE SENTENCES?

Frecks argues that the district court abused its discretion by ordering that the
sentences run consecutively. The State urges this court to follow State v. Ware, 262 Kan.
180, Syl. ¶ 4, 938 P.2d 197 (1997), and State v. Flores, 268 Kan. 657, 999 P.2d 919
(2000), and hold that this court is without jurisdiction to consider this issue. If this court
has jurisdiction, the State argues that the district court did not abuse its discretion.

Jurisdiction

Generally, consecutive sentences imposed under the Kansas Sentencing
Guidelines are presumptive sentences which are not subject to review by this court. This
court conducts a de novo review of the governing statutes to determine whether this court
has jurisdiction to consider an issue. State v. Ortega-Cadelan, 287 Kan. 157, 163, 194
P.3d 1195 (2008).

The State acknowledges that this court held that it had jurisdiction to consider
whether the trial court abused its discretion in denying a criminal defendant's motion to
depart from the life sentence with a 25-year mandatory minimum imposed pursuant to
K.S.A. 2006 Supp. 21-4643(a) in Ortega-Cadelan, 287 Kan. at 164. In Ortega-Cadelan,
this court held that such a life sentence was not a presumptive sentence within the
meaning of K.S.A. 21-4721(c)(1) and was, therefore, reviewable by the appellate courts.
The court explained it this way:

"The Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq.,
defines a defendant's right to appeal from his or her sentence and, as applicable to this
issue, provides that 'the appellate court shall not review: (1) Any sentence that is within
the presumptive sentence for the crime.' K.S.A. 21-4721(c)(1). The KSGA defines
'presumptive sentence' as 'the sentence provided in a grid block for an offender classified
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in that grid block by the combined effect of the crime severity ranking of the current
crime of conviction and the offender's criminal history.' K.S.A. 21-4703(q). Ortega-
Cadelan's sentence does not meet the K.S.A. 21-4703 definition of 'presumptive
sentence,' as his sentence was not issued pursuant to a number in a grid block. Under the
circumstances of this case, the KSGA grid was inapplicable. Moreover, K.S.A. 2006
Supp. 21-4706(d) characterizes Ortega-Cadelan's offense as an 'off-grid [crime] for the
purposes of sentencing.' Thus, the State's jurisdictional argument is misguided; we hold
that this court has jurisdiction to review a sentence imposed pursuant to K.S.A. 2006
Supp. 21-4643(a)." 287 Kan. at 163-64.

Without addressing the jurisdiction question, this court has reviewed consecutive
life sentences imposed for other off-grid crimes. In State v. Vanderveen, 259 Kan. 836,
843, 915 P.2d 57 (1996), the court held that the trial court did not abuse its discretion in
imposing consecutive life sentences for two counts of first-degree premeditated murder.
This court recently reviewed the imposition of consecutive life sentences that resulted
from felony-murder convictions in State v. Morris, No. 102,051, 2010 WL 2816241
(Kan. 2010) (unpublished opinion). In Morris, the court stated that "[t]his court has
jurisdiction under K.S.A. 22-3601(b)(1) (conviction for an off-grid crime; life sentence)."
2010 WL 2816241, at *2.

Certain of our cases holding that this court has no jurisdiction to review
consecutive sentences have included one off-grid life sentence among the sentences run
consecutively. In Ware, the court held that it did not have jurisdiction to review the
defendant's consecutive sentences of life (for felony murder) and 49 months (for
aggravated robbery). 262 Kan. at 184. Similarly, in Flores, the court held that it did not
have jurisdiction to review the defendant's consecutive sentences of life (for felony
murder) and 34 months (for attempted voluntary manslaughter). 268 Kan. at 658, 660;
see also State v. Jacobs, 293 Kan. 465, 466, 263 P.3d 790 (2011) (in context of rejecting
appellate jurisdiction over consecutive combination of grid sentence and sentence arrived
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at after departure from Jessica's Law mandatory minimum, Jessica's Law sentence
described as "presumptive"); State v. Whetstone, No. 104,413, 2012 WL 1253204 (Kan.
2012) (unpublished opinion) (same). The State's reliance on these combination cases is
misplaced here, because the only consecutive sentences under review in this case are off-
grid life sentences.

Here, Frecks was sentenced to two life sentences pursuant to K.S.A. 21-4643(a).
Like the crimes considered in Ortega-Cadelan, both of Frecks' convictions are for off-
grid offenses. Following Ortega-Cadelan, this court has jurisdiction to consider whether
the district court abused its discretion in running these off-grid life sentences
consecutively.

Standard of Review

"Generally, it is within the trial court's sound discretion to determine whether a
sentence should run concurrent with or consecutive to another sentence." State v.
Jamison, 269 Kan. 564, 576, 7 P.3d 1204 (2000). In State v. McMullen, 290 Kan. 1, 10,
221 P.3d 92 (2009), we held that the district court had the authority to impose
consecutive sentences for two counts of off-grid aggravated indecent liberties with a child
under age 14. In State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.
Ct. 1594 (2012), this court gave the standard of review for an abuse of discretion as:

"Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable,
i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is
based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion;
or (3) is based on an error of fact, i.e., if substantial competent evidence does not support
a factual finding on which a prerequisite conclusion of law or the exercise of discretion is
based." 292 Kan. at 550.

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Analysis

The sentencing judge did not provide specific reasons for imposing consecutive
life sentences in this case, saying only: "Based upon the plea negotiations and the
allegations involving and surrounding the plea and the filing documents, these will run
consecutive to one another." But the plea agreement provided that the State would stand
silent at sentencing, while Frecks reserved his right to request concurrent sentences.

The State argues that the sentencing judge was particularly affected by the fact
that there were two separate victims who had been molested on different dates and that a
third count, involving a third victim, had been dismissed during plea negotiations. Frecks
argues that the following factors supported concurrent sentencing: (1) He took
responsibility for his actions and entered guilty pleas; (2) he prevented the victims from
being traumatized by a trial; (3) he saved the State the expense of a trial; and (4) he had
no criminal history.

"It is the sentencing judge alone who determines the appropriate sentence to be
imposed or other disposition of the case by exercising his or her best judgment, common
sense, and judicial discretion after considering all of the reports, the defendant's
background, the facts of the case, and the public safety. A sentence imposed within the
statutory guidelines will not be disturbed on appeal if it is within the trial court's
discretion and not a result of partiality, prejudice, oppression, or corrupt motive."
Vanderveen, 259 Kan. at 842-43.


While it is certainly the better practice for the district court to include an
explanation of its reasons when it imposes consecutive life sentences, a sentencing
judge's failure to engage in a lengthy colloquy does not amount to an abuse of discretion.
Here, the sentencing judge did provide minimal justification for the decision to impose
the life sentences consecutively. Reasonable people may disagree as to whether the
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sentences should have been imposed consecutively or concurrently; however, under the
facts of this case, it was not an abuse of discretion to impose the life sentences
consecutively.

Affirmed.