State v. Lukken

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NOT DESIGNATED FOR PUBLICATION

No. 113,560

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RHONDA MARIE LUKKEN,
Appellant.


MEMORANDUM OPINION

Appeal from Ellsworth District Court; GLENN R. BRAUN, judge. Opinion filed November 20,
2015. Affirmed in part and dismissed in part.

Submitted for summary disposition pursuant to K.S.A. 2014 Supp. 21-6820(g) and (h).

Before MALONE, C.J., GREEN and HILL, JJ.

Per Curiam: Rhonda Marie Lukken appeals her sentence following her conviction
of multiple drug crimes. We granted Lukken's motion for summary disposition in lieu of
briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State
has filed no response.

On September 4, 2014, Lukken pled no contest to one count of possession of
marijuana with intent to distribute, a severity level 4 drug felony, and one count of
possession of marijuana, a class A misdemeanor. On November 10, 2014, the district
court imposed a presumptive sentence of 30 months' imprisonment for the felony
conviction and 12 months in the county jail for the misdemeanor conviction, with the
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sentences to run consecutively. The district court placed Lukken on probation with
community corrections for 18 months. She timely appealed her sentence.

On appeal, Lukken argues that the district court "erred in sentencing her." Lukken
acknowledges that under K.S.A. 2014 Supp. 21-6820(c)(1), an appellate court shall not
review a felony sentence that is within the presumptive sentence for the crime. Thus, we
agree with Lukken that this court is without jurisdiction to review her presumptive felony
sentence. However, the prohibition against an appellate court reviewing a presumptive
sentence applies only to convictions under the Revised Kansas Sentencing Guidelines
Act. See K.S.A. 2014 Supp. 21-6801 et seq. Lukken also received a sentence of 12
months in the county jail for her misdemeanor conviction of possession of marijuana.

The maximum sentence for a conviction of a class A misdemeanor is 1 year in jail.
See K.S.A. 2014 Supp. 21-6602(a)(1). A sentence for a misdemeanor conviction that
conforms with the statutory maximum is within the district court's sound discretion. A
judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or
unreasonable; (2) is based on an error of law; or (3) is based on an error fact. State v.
Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). Lukken makes no claim that her 12-month
sentence for possession of marijuana was an abuse of discretion. We conclude the district
court did not abuse its discretion by sentencing Lukken to 12 months in the county jail for
her class A misdemeanor conviction and by ordering the sentence to run consecutive to
the sentence for the felony conviction.

Affirmed in part and dismissed in part.