State v. Norris ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,716
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JERRY LANIER NORRIS,
Appellant.
MEMORANDUM OPINION
Appeal from Ford District Court; LAURA H. LEWIS, judge. Opinion filed December 23, 2020.
Appeal dismissed.
Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before GREEN, P.J., ATCHESON and GARDNER, JJ.
PER CURIAM: Defendant Jerry Lanier Norris has appealed a sentence the Ford
County District Court imposed on him following his no-contest plea to one count of
possession of methamphetamine with the intent to distribute. Because the sentence
conformed to the plea agreement Norris' lawyer negotiated with the State and Norris
personally acknowledged, we lack jurisdiction to review the sentence, as provided in
K.S.A. 2019 Supp. 21-6820(c)(2). We, therefore, dismiss this appeal.
The circumstances of the underlying crime are irrelevant to the sentencing issue,
although we mention that Norris had more than three pounds of methamphetamine in his
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possession when he was arrested. The State charged Norris with possession of
methamphetamine with intent to distribute, a severity level 1 drug felony; possession of
drug paraphernalia, a misdemeanor; and interference with a law enforcement officer, a
misdemeanor.
Norris, through his lawyer, negotiated a resolution of the case that called for him
to plead no contest to the drug charge and for the State to dismiss the misdemeanors. He
and the State would make a joint recommendation to the district court that he receive and
serve a prison sentence equal to one-third of the term called for in the sentencing
guidelines. The record indicates the parties anticipated Norris would have a criminal
history of H, based on two misdemeanor convictions, yielding a sentencing range of 142
to 161 months. The district court conducted a plea hearing in March 2019 and found
Norris guilty of the drug charge based on his no-contest plea and the State's proffer of its
evidence.
As it turned out, Norris had a criminal history of F—his two past convictions
actually were felonies involving marijuana possession—making the guidelines sentencing
range 150 to 167 months. The district court held a sentencing hearing on July 1, 2019. As
a result of a failure with the audio recording equipment, we do not have a verbatim
transcript of the sentencing hearing. The parties reconstructed a hearing record that the
district court approved and made part of the case file, as provided in Rule 3.04(a) (2020
Kan. S. Ct. R. 23). We rely on that reconstructed hearing record.
At the hearing, Norris' lawyer argued for the recommended sentence, reflecting a
downward durational departure from the guidelines, based on factors including Norris'
strong family network and his continuing employment and good work record. The lawyer
offered letters of support from Norris' mother and other family members and his
employer. Consistent with a defendant's right of allocution, the district court asked Norris
if he personally wished to speak before sentencing. Norris implored the district court to
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impose the mitigated sentence called for in the plea agreement and to place him on
probation. Norris' request for probation entailed a dispositional sentencing departure that
was not part of the plea agreement.
After hearing from the lawyers and Norris, the district court imposed a sentence of
50 months in prison with postrelease supervision for 36 months. The district court denied
Norris' personal request for probation. Norris has appealed.
Norris contends we have jurisdiction to hear this sentencing appeal based on State
v. Looney, 299 Kan. 903, 908, 327 P.3d 425 (2014). In Looney, the court recognized that
a criminal defendant generally could appeal a departure sentence that was less than what
he or she had requested. 299 Kan. at 908. Under K.S.A. 2019 Supp. 21-6820(a), either
the defendant or the State may appeal a departure sentence. The Looney court held that
unless a more specific statutory provision applies, defendants can appeal their sentences
if they receive departures less beneficial than they have sought. 299 Kan. 903, Syl. ¶ 4. In
K.S.A. 2019 Supp. 21-6820(c), the Legislature identified two circumstances barring
appellate review of felony sentences: (1) The sentence falls within the statutory
guidelines range based on the defendant's criminal history; or (2) the sentence conforms
to "an agreement between the [S]tate and the defendant" that the district court
approves.[*]
[*]In Looney, the court construed K.S.A. 21-4721, the predecessor to K.S.A. 2019
Supp. 21-6820. The Legislature recodified the criminal code effective July 1, 2011. The
earlier version governed Looney's appeal. But the operative provisions of K.S.A. 21-4721
and K.S.A. 2019 Supp. 21-6820 are the same.
In responding to Norris' appeal, the State bifurcates the district court's sentencing
decision. The State says we have no jurisdiction to consider the 50-month sentence
because it is a product of the plea agreement that the district court obviously approved
and acted on. And so K.S.A. 2019 Supp. 21-6820(c)(2) controls over the broader
provision in K.S.A. 2019 Supp. 21-6820(a) on departure sentences generally. But the
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State addresses the district court's decision to deny Norris probation on the merits and
submits the ruling entails an appropriate exercise of judicial discretion. Norris has not
filed a reply brief.
We examine each of the State's positions in turn. As to the first point, we agree
that we lack jurisdiction to review the 50-month sentence. Although the sentence reflects
a downward durational departure, it is the product of a plea agreement that the district
court followed. That is, the district court imposed the sentence the State and Norris
agreed to recommend as part of their disposition of the case. Accordingly, K.S.A. 2019
Supp. 21-6820(c)(2) applies by its terms.
And K.S.A. 2019 Supp. 21-6820(c)(2) must apply to departure sentences.
Otherwise, of course, it would cover only nondeparture sentences—which is to say
presumptive guidelines sentences. If that were true, K.S.A. 2019 Supp. 21-6820(c)(2)
would be wholly redundant of K.S.A. 2019 Supp. 21-6820(c)(1). We are disinclined to
read out of existence a complete subsection of a statute when the full statute permits an
entirely reasonable alternative construction giving meaning to all of its language. State v.
Van Hoet, 277 Kan. 815, 826-27, 89 P.3d 606 (2004) ("The court should avoid
interpreting a statute in such a way that part of it becomes surplusage.").
This court came to a comparable conclusion in State v. Cooper, 54 Kan. App. 2d
25, 28, 394 P.3d 1194 (2017), holding that K.S.A. 2016 Supp. 21-6820(c)(2) took
precedence over K.S.A. 2016 Supp. 21-6820(a) as the more specific statutory directive.
That disposes of Norris' contention regarding the 50-month sentence and precludes our
review.
We conclude the same rationale also prevents us from considering the district
court's denial of probation. Norris personally asked for probation and in doing so went
outside the plea agreement. The district court followed the plea agreement by ordering
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Norris to serve the 50-month sentence in prison rather than granting him probation.
Although the district court did not depart from a guidelines sentence to the degree Norris
personally wished in denying him probation, it did adhere to the plea agreement in so
ruling. Therefore, K.S.A. 2019 Supp. 21-6820(c)(2) controls (and extinguishes) our
review of that aspect of the sentence, as well. We lack jurisdiction to consider the denial
of probation. The result is consistent with Looney because the plea agreement in that case
specifically preserved Looney's right to ask for probation in addition to the negotiated
downward durational departure sentence. 299 Kan. at 909.
Even if we are mistaken in extending K.S.A. 2019 Supp. 21-6820(c)(2) to the
denial of probation, the State prevails on the merits, as it has argued. We review a district
court's denial of a departure sentence for abuse of judicial discretion. State v. Ibarra, 307
Kan. 431, 433, 411 P.3d 318 (2018). A district court exceeds that discretion if it rules in a
way no reasonable judicial officer would under the circumstances, if it ignores
controlling facts or relies on unproven factual representations, or if it acts outside the
legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field
Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013); State v. Ward, 292 Kan. 541,
Syl. ¶ 3, 256 P.3d 801 (2011).
Norris presented some circumstances favoring mitigation of his punishment. But
there were also significant countervailing circumstances, including his continuing
involvement with illegal drugs and the large amount of methamphetamine in this case.
The district court understood those factual circumstances and the governing law. Norris
doesn't argue otherwise. Rather, he says the denial of probation was so far off the mark
no other district court would have done the same. We readily conclude that's incorrect.
Appeal dismissed.
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