State v. Kelley

1

NOT DESIGNATED FOR PUBLICATION

No. 118,544

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GARY WAYNE KELLEY,
Appellant.


MEMORANDUM OPINION

Appeal from Allen District Court; DANIEL D. CREITZ, judge. Opinion filed June 29, 2018. Appeal
dismissed.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Jacqie Spradling, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., STANDRIDGE, J., and RYAN W. ROSAUER, District Judge, assigned.

ROSAUER, J.: Gary Kelley appeals the district court's sentence. Kelley pled no
contest to felony possession of methamphetamine. At sentencing, the district court
determined Kelley's criminal history was an A. Kelley did not object to the A criminal
history. The court denied Kelley's motion for a dispositional departure to probation and
sentenced Kelley to the presumptive prison term of 40 months.

Because the district court sentenced Kelley to the presumptive sentence, this court
does not have jurisdiction to hear Kelley's appeal.

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FACTUAL AND PROCEDURAL BACKGROUND

In March 2015, the State charged Kelley with felony possession of
methamphetamine (a drug severity level 5 felony), misdemeanor possession of drug
paraphernalia, and driving under the influence. Kelley waived his preliminary hearing in
August 2015. In May 2016, Kelley pled no contest to possession of methamphetamine in
accordance with a plea agreement where the State agreed to stand silent on Kelley's
motion for a dispositional departure. It took some time to get to sentencing because of
Kelley's treatment needs and witness availability issues. Sentencing occurred in
September 2017.

At sentencing, Kelley listed several factors in support of his motion to depart. He
cited his age (65 at the time of the offense and 67 at the time of sentencing), the
availability of a recommended treatment program, a nonprison sanction would serve
community interests and offender reformation, his person felonies were 45-years old, he
was not a threat to society, his supportive family, steps he had taken towards
rehabilitation, the need to reserve prison beds for violent offenders, his admission of
responsibility and cooperation in his prosecution, his addiction being the source of his
misconduct along with his voluntary treatment efforts, and the degree of harm from his
offense was less than typical. At sentencing, Kelley presented testimony from his
treatment provider and provided his own statement. In accordance with the plea
agreement, the State did not contest Kelley's departure motion. After hearing the
evidence, the district court denied Kelley's motion to depart and sentenced him to the
presumptive sentence of 40 months.

A week after sentencing, Kelley moved the court to reconsider his sentence. The
court held a hearing on the motion, but the court affirmed its original sentence. Kelley
timely appealed.

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Kelley argues the district court abused its discretion when it sentenced Kelley by
misconstruing the law governing departure factors. The State argues this court does not
have jurisdiction to hear Kelley's appeal. The State further argues if this court does have
jurisdiction, then the district court did not abuse its discretion when denying Kelley's
departure motion.

ANALYSIS

This court does not have jurisdiction to hear Kelley's appeal of the district court's
denial of his departure motion. Kelley had a criminal history of A. After his no contest
plea, the district court convicted him of a severity level 5 drug felony. Therefore, in
accordance with K.S.A. 2014 Supp. 21-6805(a), the sentencing grid for drug offenses, the
presumptive sentence was 37 to 42 months with a standard sentence of 40 months. The
district court sentenced Kelley to that 40-month sentence, thus giving him the
presumptive sentence.

For any felony committed on or after July 1, 1993, this court shall not review any
sentence falling within the presumptive sentence under K.S.A. 2014 Supp. 21-6821(c)(1).
See also State v. Johnson, 286 Kan. 824, 842, 190 P.3d 207 (2008) ("As in these cases,
we conclude a sentence that falls within a grid block is constitutional and may be
considered a presumptive sentence, and appellate courts lack jurisdiction."). Kelley does
not attack the constitutionality of the sentence. Neither is this a case where the district
court departed but not to the extent defendant requested. Had the district court departed in
any manner, this court would have jurisdiction to consider an appeal of that departure
because K.S.A. 2014 Supp. 21-6821(c)(1) applies only to presumptive sentences. See
State v. Looney, 299 Kan. 903, 908-09, 327 P.3d 425 (2014).

We dismiss this appeal for lack of jurisdiction.