State v. McDowell

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NOT DESIGNATED FOR PUBLICATION

No. 121,707


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WILLIAM HENRY MCDOWELL,
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: William Henry McDowell pleaded no contest to one count of
aggravated failure to report. The district court granted McDowell's and the State's joint
recommendation for a durational departure and sentenced McDowell to 36 months in
prison with 36 months of postrelease supervision. McDowell now appeals, arguing the
district court erred in sentencing him. We granted McDowell'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 McDowell's appeal, it is dismissed.

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In March 2019, according to a plea agreement, McDowell pleaded no contest to
one count of aggravated failure to report under K.S.A. 2018 Supp. 22-4903(b), a severity
level 3 felony. As part of the plea agreement, McDowell and the State jointly
recommended a durational departure to 36 months in prison. McDowell subsequently
filed a durational departure motion.

At the sentencing hearing, the district court found McDowell's criminal history
score was G, making his presumptive sentence 68-77 months. The district court granted
the jointly requested departure and sentenced McDowell to 36 months in prison. The
district court also imposed 36 months of postrelease supervision.

McDowell 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 reviewed de
novo. State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 (2014).

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." Although K.S.A. 2018 Supp. 21-6820(a)
provides a departure sentence is subject to appeal, an appellate court is still precluded
from reviewing 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 McDowell jointly agreed to a durational departure of 36
months in prison in exchange for a plea of guilty or no contest to one count of aggravated
failure to register. The district court accepted McDowell's no contest plea and found him
guilty on one count of aggravated failure to report. At sentencing, the district court agreed
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to follow the plea agreement and sentenced McDowell to 36 months in prison. Because
the district court approved on the record the agreement between the State and McDowell,
we are without jurisdiction to review McDowell's prison sentence.

Also, the court sentenced McDowell to 36 months of postrelease supervision.
Aggravated failure to register is a severity level 3 felony. K.S.A. 2018 Supp. 22-
4903(c)(2). Offenders convicted of severity level 3 felonies must serve 36 months of
postrelease supervision. K.S.A. 2018 Supp. 22-3717(d)(1)(A). Appellate courts shall not
review "[a]ny sentence that is within the presumptive sentence for the crime." K.S.A.
2018 Supp. 21-6820(c)(1). McDowell's 36 months of postrelease supervision was
required by statute and, therefore, was within his presumptive sentence. Thus, we are
without jurisdiction to review McDowell's postrelease supervision sentence.

Appeal dismissed.