State v. Wass

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NOT DESIGNATED FOR PUBLICATION

No. 117,169


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SCOTTIE E. WASS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed
September 1, 2017. Appeal dismissed.

Submitted for summary disposition pursuant to K.S.A. 2016 Supp. 21-6820(g) and (h).

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

Per Curiam: Scottie E. Wass appeals the sentence imposed upon his conviction
for possession of methamphetamine with intent to distribute. Wass filed a motion for
summary disposition in lieu of briefs in accordance with Supreme Court Rule 7.041A
(2017 Kan. S. Ct. R. 48). The State filed a response and did not oppose Wass' motion for
summary disposition. We granted the motion.

We conclude that under K.S.A. 2016 Supp. 21-6820(c)(1), we do not have
jurisdiction to review the district court's imposition of the presumptive sentence. As a
result, we dismiss Wass' appeal that claims the sentencing court erred in failing to grant
the motion for a departure sentence.
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FACTUAL AND PROCEDURAL BACKGROUND

In keeping with a plea agreement, on November 2, 2016, Wass pled guilty to one
count of possession of methamphetamine with intent to distribute. On November 23,
2016, Wass' counsel filed a motion seeking a dispositional or durational departure
sentence. The motion argued that Wass accepted full responsibility for his actions,
rehabilitative programs existed that would be more effective in preventing recidivism
than the presumptive prison sentence, and that under the Kansas Sentencing Guidelines
prison should be reserved for violent offenders. Wass also filed a pro se motion for a
dispositional departure sentence on December 13, 2016, which reprised similar
arguments made in his counsel's departure motion.

At the December 14, 2016, sentencing hearing, Wass' defense counsel argued in
support of the motion for a dispositional or durational departure. Specifically, counsel
stressed that Wass had experienced many stressful life events leading up to his criminal
conviction and that he took full responsibility for his actions. Defense counsel also
emphasized that Wass believed he had a drug problem and anxiety issues that would be
better addressed by the sentencing court granting probation rather than imposing a
presumptive prison sentence.

Wass personally addressed the sentencing court. In his presentation, Wass stated
that several of his family members had died which resulted in grief that led to his
addiction to methamphetamine. Wass also argued that although he had an extensive prior
record, he had never been convicted of "aggravated personal felonies."

The sentencing court concluded there were no substantial and compelling factors
sufficient to merit a sentencing departure. The departure motion was denied and the
sentencing court imposed a 59-month presumptive prison sentence—the middle number
in the appropriate sentencing grid box.
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DISCUSSION

On appeal, Wass contends the sentencing court erred in failing to consider his pro
se sentencing motion and in failing to grant a departure sentence rather than the
presumptive prison sentence.

Preliminarily, we can find no factual basis to support Wass' claim that the
sentencing court did not consider his pro se departure motion. As noted earlier, Wass
filed his motion the day before the sentencing hearing, the arguments raised in the pro se
motion were similar to those raised in his defense counsel's written motion, and both
Wass and his defense counsel orally argued to the sentencing court the merits of a
departure sentence under the circumstances of this case. The record clearly shows that the
sentencing court was fully advised of the merits of both departure motions.

Wass' principal claim is that the sentencing court erred in denying a dispositional
or durational departure and in ordering imposition of the presumptive sentence of
imprisonment. This claim requires us to question our jurisdiction.

In State v. Johnson, 286 Kan. 824, 842, 190 P3d 207 (2008), our Supreme Court
held that "a sentence that falls within a grid block is constitutional and may be considered
a presumptive sentence, and appellate courts lack jurisdiction [to consider a challenge to
it]." See K.S.A. 2016 Supp. 21-6820(c)(1) ("On appeal from a judgment or conviction
entered for a felony committed on or after July 1, 1993, the appellate court shall not
review . . . [a]ny sentence that is within the presumptive sentence for the crime."); State v.
Grebe, 46 Kan. App. 2d 741, Syl. ¶ 5, 264 P.3d 511 (2011).

In this case, when the sentencing court denied a dispositional or durational
departure sentence and imposed a sentence within the appropriate grid box, it imposed a
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presumptive sentence. Because we lack jurisdiction to consider Wass' challenge to the
presumptive sentence imposed, the appeal is dismissed.

Appeal dismissed.