State v. Esquivel

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NOT DESIGNATED FOR PUBLICATION

No. 121,653


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

HENRY PAUDA ESQUIVEL,
Appellant.


MEMORANDUM OPINION


Appeal from Ford District Court; SIDNEY R. THOMAS, judge. Opinion filed February 14, 2020.
Appeal dismissed.

Submitted by the parties for summary disposition pursuant to K.S.A. 2019 Supp. 21-6820(g) and
(h).

Before GREEN, P.J., HILL and LEBEN, JJ.

PER CURIAM: Henry Pauda Esquivel pleaded no contest to one count of
distribution of methamphetamine. The district court granted Esquivel's and the State's
joint recommendation for a durational departure and sentenced Esquivel to 72 months in
prison with 36 months of postrelease supervision. Esquivel now appeals, arguing the
district court erred in sentencing him. We granted Esquivel's motion for summary
disposition under Kansas Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). Since
this court lacks jurisdiction to hear Esquivel's appeal, it is dismissed.

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In February 2019, Esquivel pleaded no contest to one count of distribution of
methamphetamine in violation of K.S.A. 2018 Supp. 21-5705(a)(1). As part of the
agreement, Esquivel and the State jointly recommended a downward durational departure
sentence of 36 months in prison. But the State reserved the right to request the full
sentence if Esquivel violated his bond. Esquivel subsequently violated his bond. Esquivel
filed a motion for a durational departure to 72 months in prison. At sentencing, the State
agreed with Esquivel's departure motion and recommended to the district court that it
follow the agreement. The district court followed the agreement and sentenced Esquivel
to 72 months in prison with 36 months of postrelease supervision.

Esquivel appeals.

An appellate court must be vigilant in deciding whether it has jurisdiction to
review a case. Whether appellate jurisdiction exists is a question of law subject to de
novo review. State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 (2014).

Esquivel argues that the district court erred in sentencing him. But under K.S.A.
2018 Supp. 21-6820(c)(2), 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." K.S.A. 2018 Supp. 21-6820(a) grants appellate courts the
jurisdiction to review a departure sentence. But an appellate court still lacks jurisdiction
to review a departure sentence when that sentence results from "'an agreement between
the state and the defendant which the sentencing court approves on the record.'" State v.
Cooper, 54 Kan. App. 2d 25, 28, 394 P.3d 1194.

Here, the State and Esquivel reached an agreement in which Esquivel agreed to
plead no contest to distributing methamphetamine, in exchange for the State dismissing
the other charges, and the State's agreement to join in recommending a durational
departure to 36 months in prison. After Esquivel violated his bond, he filed a motion for a
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durational departure to 72 months in prison. At sentencing, the State supported the
motion and asked the district court to follow the agreement. The court agreed to follow
the parties' modified agreement, granted the departure motion, and sentenced Esquivel to
72 months in prison with 36 months of postrelease supervision.

Because the district court approved on the record Esquivel's and the State's
agreement, we lack jurisdiction to hear this appeal.

Appeal dismissed.