State v. Long

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NOT DESIGNATED FOR PUBLICATION

No. 116,838

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GARY RONNELLE LONG,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed October 27,
2017. Affirmed.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.

Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BRUNS, P.J., MCANANY, J., and HEBERT, S.J.

PER CURIAM: Gary Ronnelle Long was convicted on his plea of guilty to one
count of distribution of marijuana and was sentenced to a presumptive term of 30 months
in prison. In this appeal, Long argues that the district court misinterpreted its sentencing
authority in denying his request for an optional nonprison sentence and that the district
court further erred by using his criminal history to determine his sentence.

We find no sentencing errors occurred and affirm the judgment of the district
court.

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Factual and Procedural Background

On June 23, 2016, Long pled guilty to one count of distribution of marijuana, a
severity level 4 drug felony. In exchange for Long's guilty plea, the State dismissed one
count of possession of drug paraphernalia. The parties agreed to leave sentencing open
for argument. A presentence investigation (PSI) report indicated Long had a criminal
history score of E, placing him in a border box on the drug sentencing grid.

Before sentencing, Long filed a motion for border box findings, requesting the
district court impose an optional nonprison sentence under K.S.A. 2016 Supp. 21-
6804(q). He argued a nonprison sanction would serve community safety interests by
promoting offender reformation. He noted that an appropriate drug treatment program
was available and he had already started the program within the last month. He also
asserted he had demonstrated he could comply with probation conditions by successfully
completing pretrial services and four months of house arrest.

At the sentencing hearing, Long confirmed he had no objection to the PSI. The
State requested the district court impose a 30-month prison sentence. The State pointed
out almost all of Long's prior convictions were related to distribution of controlled
substances. It argued Long already had multiple chances to demonstrate he could stay
away from controlled substances but had been unable to do so. As such, placing Long on
probation would not serve the safety of the community.

Long's counsel reiterated the arguments presented in the motion for border box
findings. He also pointed out Long's last conviction was in 2009, and his life had more
structure now than it did at the time he was arrested. Long personally addressed the court,
explaining he had learned from his mistakes and he wanted to move on with his life.

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The district court declined to impose the optional nonprison sentence and
sentenced Long to the presumptive prison sentence of 30 months. Long timely filed his
appeal.

Denial of the Optional Nonprison Sentence

Jurisdiction

The State first argues this court is without jurisdiction to hear this appeal. K.S.A.
2016 Supp. 21-6804(q) states: "Any decision made by the court regarding the imposition
of an optional nonprison sentence shall not be considered a departure and shall not be
subject to appeal." Thus, imprisonment in a border-box case constitutes a presumptive
sentence. State v. Whitlock, 36 Kan. App. 2d 556, 559, 142 P.3d 334 (2006). Presumptive
sentences are not subject to appeal. K.S.A. 2016 Supp. 21-6820(c)(1); State v. Huerta,
291 Kan. 831, 835-37, 247 P.3d 1043 (2011).

The State is correct that Long received a presumptive sentence, and presumptive
sentences are generally not subject to appeal. There is, however, an exception to this
general rule. An appellate court may review the limited question of whether a district
court misinterpreted its sentencing authority under the Kansas Sentencing Guidelines
Act. State v. Morningstar, 299 Kan. 1236, Syl. ¶ 1, 329 P.3d 1093 (2014). Here Long
argues that the district court misinterpreted its authority under K.S.A. 2016 Supp. 21-
6804(q) with regard to the findings required to be made in support of the discretionary
imposition of a nonprison sentence. Thus, we have jurisdiction to hear Long's argument.

The Statute

K.S.A. 2016 Supp. 21-6804(q) provides:

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"[A]n 'optional nonprison sentence' is a sentence which the court may impose, in lieu of
the presumptive sentence, upon making the following findings on the record:
(1) An appropriate treatment program exists which is likely to be more effective
than the presumptive prison term in reducing the risk of offender recidivism; and
(2) the recommended treatment program is available and the offender can be
admitted to such program within a reasonable period of time; or
(3) the nonprison sanction will serve community safety interests by promoting
offender reformation." (Emphasis added.)

Based on the plain language of the statute, the district court has discretion—
"may"—to impose a nonprison sentence if it can make the appropriate findings under
subsections (1) and (2) or under subsection (3). There is no requirement that the court do
so.

Long argues that the district court erroneously interpreted the statute as requiring
findings be made under all three subsections before it could impose a nonprison sanction.
The record of the sentencing hearing does not support this contention.

In considering Long's motion, the district court stated:

"[I]n this case, although perhaps Paragraphs 1 and 2 are met for the border box, I do not
believe that the third paragraph is made. I do not understand why probation in this case
would serve community safety interests.
"And unfortunately, Mr. Long, this is not a situation where you have had just a
couple of prior convictions for possession, but three prior convictions for distribution.
And they seem to occur now in about even amounts of time.
"So because I cannot make those findings in good conscience, and because of
your prior convictions and your criminal history, I am going to—
. . . .
"I am going to sentence you to the standard 30-month sentence."

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The district court made no clear and unequivocal findings with regard to
subsections (1) and/or (2); his nonspecific reference was clearly qualified by his use of
the term "perhaps." Not only did the court not make positive findings regarding
subsection (3), but clearly and unequivocally indicated that (3) was not met, specifically
questioning how probation would serve community interests. His reference to Long's
three prior convictions for distribution indicated that offender reformation was certainly
questionable.

The disposition of the motion was succinct and concise. There is no statement or
indication the court misconstrued its authority as requiring positive findings on all three
subsections. The court's conclusion that "I cannot make those findings in good
conscience" leads us to the conclusion the district court actually made none of the
findings required by subsections (1), (2), or (3).

We would note that there is more than a little irony in an argument which suggests
a district judge abuses his or her discretion by denying a nonprison sentence which he or
she finds will not serve community safety interests or offender reformation simply
because the record suggests the existence of an available treatment program, especially
where, as here, the prior criminal history establishes Long as a chronic recidivist.

We find no statutory misinterpretation or abuse of discretion by the district court
in denying the optional nonprison sentence.

Use of Criminal History

Long also argues the district court violated his Sixth and Fourteenth Amendment
rights under the United States Constitution as recognized in Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it sentenced him based in part
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on his criminal history without first requiring the State to prove his criminal history to a
jury beyond a reasonable doubt.

Long concedes the Kansas Supreme Court has already rejected this argument in
State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). He raises it now to preserve for
possible federal review. This court is duty bound to follow Kansas Supreme Court
precedent, absent some indication the Supreme Court is departing from its previous
position. State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). There is no
such indication here; indeed, the Supreme Court has reiterated its position in numerous
cases since deciding Ivory. Thus, the district court did not err in using Long's criminal
history without first requiring the State to prove it beyond a reasonable doubt to a jury.

Affirmed.