State v. Stokes ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,154
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JENNIFER STOKES,
Appellant.
MEMORANDUM OPINION
Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed April 30, 2021.
Affirmed.
Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.
Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.
Before MALONE, P.J., ATCHESON, J., and BURGESS, S.J.
PER CURIAM: Jennifer Stokes appeals her sentence following her conviction of
possession with intent to distribute tetrahydrocannabinol. Stokes claims the district court
erred by not granting her a durational departure, even though she moved only for a
dispositional departure. Finding no error, we affirm the district court's judgment.
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FACTS
Stokes pled no contest to possession with intent to distribute tetrahydrocannabinol
in exchange for dismissal of other drug-related charges. The presumptive sentence was
32-34-36 months' imprisonment. Under the plea agreement, the State agreed to stand
silent as to Stokes' request for a dispositional departure at sentencing. Before sentencing,
Stokes moved for a dispositional departure to community corrections.
At the sentencing hearing Stokes testified in support of the dispositional departure,
stating she had minor children and she had made appointments to address her drug and
mental health problems. The district court sentenced Stokes to 34 months' imprisonment
with 24 months' postrelease supervision but granted her request for probation with
community corrections for 18 months. The district court cited three reasons for granting
the dispositional departure: (1) no opposition by the State; (2) preservation of Stokes'
family; and (3) rehabilitation efforts by Stokes. Although the district court granted Stokes
the sentence she requested, she timely filed a notice of appeal.
Stokes moved for summary disposition of her sentencing appeal, arguing the
district court abused its discretion in failing to provide a durational departure and that it
erred in scoring her criminal history without proving the prior convictions to a jury. The
State did not respond to Stokes' motion for summary disposition. This court denied the
motion for summary disposition and ordered briefing without stating any reason.
ANALYSIS
In her brief, Stokes claims the district court "abused its discretion in failing to
provide [her] with a more substantial departure, either by reducing the length of her
probation, providing a durational departure to the underlying sentence, or both." She does
not address her claim in the summary disposition motion that the district court erred in
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scoring her criminal history without proving the prior convictions to a jury. An issue not
briefed is waived or abandoned. State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018).
The State counters that because Stokes did not move for a durational departure in
district court, she cannot raise this issue on appeal. Alternatively, the State argues that the
district court did err in granting only a dispositional departure. We have jurisdiction to
hear Stokes' appeal because she received a departure sentence. See State v. Looney, 299
Kan. 903, 909, 327 P.3d 425 (2014). But as the State argues, Stokes' single claim on
appeal is not properly preserved for our review.
Stokes' only claim on appeal is that the district court should have granted her some
type of durational departure along with the dispositional departure the court granted. But
Stokes did not raise this issue before the district court. Both in her motion and at
sentencing, she only argued for a dispositional departure. She never requested that the
district court grant a durational departure. Generally, an appellant cannot raise an issue on
appeal when it was not raised in district court. State v. Johnson, 309 Kan. 992, 995, 441
P.3d 1036 (2019). There are exceptions to this general rule, but the appellant must
explain why the issue is properly raised for the first time on appeal. 309 Kan. at 995;
Supreme Court Rule 6.02(a)(5) (2021 Kan. S. Ct. R. 35). Stokes neither acknowledges
that she did not request any kind of durational departure below nor argues why this court
should hear this issue for the first time on appeal. Litigants who ignore Rule 6.02(a)(5)
risk a ruling that the issue is improperly briefed and will be considered waived or
abandoned. State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018).
Moreover, Stokes fails to point to a decision for this court to review. Whether the
district court erred in failing to grant a more substantial departure is reviewed for an
abuse of discretion. State v. Ballard, 289 Kan. 1000, 1007-09, 218 P.3d 432 (2009). A
judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or
unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State
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v. Ballou, 310 Kan. 591, 615, 448 P.3d 479 (2019). Stokes bears the burden of
establishing the district court abused its discretion. See 310 Kan. at 615. Because Stokes
never requested a durational departure, the district court neither considered a durational
departure nor made a discretionary decision about a durational departure. This court
cannot decide whether the district court abused its discretion when the court did not
exercise any discretion. See, e.g., Manhattan Ice and Cold Storage v. City of Manhattan,
294 Kan. 60, 81, 274 P.3d 609 (2012) ("Without a ruling from the district court on this
issue, we cannot proceed with formless appellate review.").
Even if Stokes' dispositional departure argument preserved her durational
departure argument, she fails to show the district court abused its discretion. Under
K.S.A. 2020 Supp. 21-6815(a), the district court "shall impose the presumptive sentence
provided by the sentencing guidelines unless the judge finds substantial and compelling
reasons to impose a departure sentence." Stokes points to the same factors the court cited
for granting the dispositional departure as supporting a durational departure. But reasons
that justify a dispositional departure do not always support a durational departure.
Stokes does not point to an error of law or fact in the district court's decision.
Thus, the issue is whether the district court's failure to grant a durational departure was
unreasonable. The district court reasoned that probation would preserve Stokes' family
and give her a chance to complete drug treatment. As the district court pointed out, it
gave Stokes the chance to avoid the potential of 58 months of supervision—between
prison time and postrelease supervision—if she could successfully complete just 18
months of probation with community corrections. Stokes fails to show that no reasonable
person would agree with the district court's action not to sua sponte grant a durational
departure along with the dispositional departure Stokes requested.
Affirmed.
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