State v. Matthews ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,492
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MARSHALL JAMES MATTHEWS JR.,
Appellant.
MEMORANDUM OPINION
Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed December 10,
2021. Affirmed in part and dismissed in part.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before POWELL, P.J., ATCHESON, J., and WALKER, S.J.
PER CURIAM: Marshall James Matthews Jr. appeals his sentences in two separate
cases. We granted Matthews' motion for summary disposition under Kansas Supreme
Court Rule 7.041A (2021 Kan. S. Ct. R. 48). In the State's response, it agrees that
summary disposition is appropriate but urges our dismissal of the appeal, claiming we
lack jurisdiction to hear it. After a review of the record, we affirm in part and dismiss in
part.
As part of a plea agreement with the State, Matthews agreed to plead no contest in
19CR732 to one count of possession of methamphetamine, a severity level 5 drug felony,
and, in 19CR820, no contest to one count each of interference with law enforcement and
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possession of zolpidem, both class A misdemeanors. In exchange for his plea, the State
dismissed the remaining charges, and both parties agreed to recommend that the
sentences in 19CR820 run concurrent with each other but consecutive to the sentence in
19CR732. The parties also agreed to recommend probation. At sentencing on November
5, 2020, in 19CR732, the district court imposed a presumptive sentence of 13 months in
prison with probation from that sentence for 18 months. In 19CR820, the district court
imposed concurrent sentences of 6 months in the county jail for each misdemeanor count,
suspended both sentences, and placed Matthews on probation for 12 months. The
sentences in 19CR820 were imposed consecutive to the sentence in 19CR732.
Matthews now appeals his sentences, claiming the district court erred. The State
responds that we lack jurisdiction to consider Matthews' appeal because presumptive
sentences and sentences imposed pursuant to a plea agreement are not subject to appellate
review. See K.S.A. 2020 Supp. 21-6820(c). Whether appellate jurisdiction exists is a
legal question reviewed de novo. State v. Looney, 299 Kan. 903, 906, 327 P.3d 425(2014). Matthews acknowledges the law in this area.
It is undisputed that Matthews received a presumptive felony sentence in
19CR732. Because he did, K.S.A. 2020 Supp. 21-6820(c)(1) precludes our review of this
sentence.
However, K.S.A. 2020 Supp. 21-6820(c) applies to only felony sentences,
meaning we do indeed have jurisdiction to review Matthews' misdemeanor sentences in
19CR820. See State v. Huff, 277 Kan. 195, 197-98, 83 P.3d 206 (2004) (presumptive
felony sentence statute inapplicable to misdemeanor sentences). "A criminal sentence that
is within statutory limits will not be disturbed on appeal absent a showing of abuse of
discretion or vindictiveness on the part of the sentencing court. [Citation omitted.]" State
v. Cooper, 275 Kan. 823, 827, 69 P.3d 559 (2003). Judicial discretion is abused if the
action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have
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taken the view adopted by the district court; (2) is based on an error of law; or (3) is
based on an error of fact. State v. Jones, 306 Kan. 948, 957, 398 P.3d 856 (2017).
Matthews bears the burden to show an abuse of discretion by the district court. See State
v. Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).
Matthews' convictions in 19CR820 were each for a class A misdemeanor, which
carries a maximum punishment of not more than one year in the county jail. See K.S.A.
2020 Supp. 21-6602(a)(1). As the district court sentenced Matthews to six months in jail
for each count, the sentences are clearly within the statutory range. Given that Matthews
makes no argument that vindictiveness influenced the district court's sentencing or
explains how the district court abused its discretion with the sentences it imposed in
19CR820, we see no abuse of discretion by the district court.
Affirmed in part and dismissed in part.
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