State v. Parker ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,300
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DEVIN EUGENE PARKER,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; ERIC WILLIAMS, judge. Opinion filed January 22, 2021.
Sentence vacated and case remanded with directions.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before MALONE, P.J., HILL and BUSER, JJ.
PER CURIAM: Devin Eugene Parker appeals his sentence following his guilty plea
to aggravated domestic battery. Parker claims: (1) the district court erred by applying an
incorrect legal standard when denying his request for probation and (2) the sentencing
court's use of judicial findings of prior convictions to increase his sentence violates § 5 of
the Kansas Constitution Bill of Rights. We agree with Parker's first claim, so we vacate
his sentence and remand for further proceedings.
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FACTS
On August 2, 2019, the State charged Parker with two counts of aggravated
domestic battery and one count of domestic battery. Parker eventually pled guilty to one
count of aggravated domestic battery in exchange for dismissal of the other charges.
Under the plea agreement, the State would recommend imprisonment because Parker
committed his crime while he was on felony bond in two other cases.
A presentence investigation (PSI) report reflected Parker had a criminal history
score of C with a sentencing range of 25-27-29 months and presumptive probation. The
report also stated that special rule 10 applied. The special rule states that when the
defendant commits a new felony while on felony bond, then the district court "may"
impose a prison sentence even if the crime presumes a nonprison sentence. After the plea
hearing, Parker filed a motion to not impose the applicable special rule and argued that he
should receive probation because of the specific circumstances of his case.
At the sentencing hearing on December 10, 2019, Parker did not object to his
criminal history as reflected in the PSI report. The State recommended that the district
court impose imprisonment for Parker's crime. Defense counsel stated that "we're asking
you actually follow the presumption and place my client on probation. That's basically
because my client does fall in a presumptive probation category [and] except for the
special rule he would be presumptive probation."
After hearing all the arguments, the district court found the special rule applied
and the judge stated, "The criminal history score is found to be C in this case. It would be
a presumptive probation case but for the special rule that applies. The presumption is—
disposition now is prison in this matter." The district court sentenced Parker to 25
months' imprisonment to run consecutive to the sentences in his other cases and denied
Parker's request for probation. Parker timely appealed his sentence.
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ANALYSIS
On appeal, Parker claims the district court erred by applying an incorrect legal
standard when denying his request for probation. More specifically, he argues that the
district court misunderstood and misapplied its authority under the special sentencing
rule. Parker also claims for the first time on appeal that the sentencing court's use of
judicial findings of prior convictions to increase his sentence violates § 5 of the Kansas
Constitution Bill of Rights. The State asserts that the district court did not err in
sentencing Parker to prison under the applicable special sentencing rule. The State also
argues that this court should not address Parker's constitutional claim for the first time on
appeal. But on the merits, the State asserts that the district court did not err in considering
Parker's prior convictions to determine his sentence.
We will first address Parker's claim that the district court misunderstood and
misapplied its sentencing authority under the special sentencing rule. Parker concedes
that generally, this court lacks jurisdiction to review a sentence for a felony conviction if
it is within the presumptive sentence for the crime. See K.S.A. 2019 Supp. 21-6820(c).
But he correctly asserts that even when the district court imposes a presumptive sentence,
an appellate court has jurisdiction to review a claim "that the district court wrongly
interpreted its statutory sentencing authority." State v. Warren, 297 Kan. 881, 885, 304
P.3d 1288 (2013). Thus, this court has jurisdiction to address his claim that the district
court wrongly interpreted its sentencing authority under the special rule.
Parker argues that this issue is preserved for review because he asked the district
court not to apply the special sentencing rule. But Parker did not argue below that the
district court misunderstood its authority under the sentencing rule, just that the district
court should not apply the rule. Still, Parker correctly argues that this court can hear this
issue for the first time on appeal because it is purely a legal issue that is determinative of
the case. See State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019).
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Parker contends that the district court misinterpreted its sentencing authority
because it found the special rule transformed his presumptive probation sentence to a
presumptive prison sentence when the rule itself simply gives the district court the
discretion to impose a prison sentence. Parker argues that because the district court
impermissibly treated his case as a presumptive prison case, he had to show substantial
and compelling reasons for the court to depart to probation.
The State counters that although the district court "might have been inartful in
addressing the application of the sentencing rule," the district court's entire
pronouncement and its denial of Parker's motion suggest that the district court understood
the presumptive sentence was still probation. To evaluate this claim, this court must
engage in statutory interpretation which is a question of law subject to unlimited review.
State v. Kinder, 307 Kan. 237, 240, 408 P.3d 114 (2018).
The applicable special sentencing rule states:
"When a new felony is committed while the offender is on release for a felony
pursuant to the provisions of article 28 of chapter 22 of the Kansas Statutes Annotated,
and amendments thereto, or similar provisions of the laws of another jurisdiction, a new
sentence may be imposed consecutively pursuant to the provisions of K.S.A. 2019 Supp.
21-6606, and amendments thereto, and the court may sentence the offender to
imprisonment for the new conviction, even when the new crime of conviction otherwise
presumes a nonprison sentence. In this event, imposition of a prison sentence for the new
crime does not constitute a departure." (Emphasis added.) K.S.A. 2019 Supp. 21-
6604(f)(4).
Both parties agree that the special rule does not operate to change the presumptive
sentence from a nonprison sanction to a presumptive prison sanction. Instead, the rule
merely grants the district court the discretion to impose a prison sentence despite the
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presumptive nonprison sentence. Thus, the only question for us to resolve is whether the
district court understood these principles.
Parker correctly asserts that the district court misunderstood its sentencing
authority. When discussing disposition, the district court stated: "The criminal history
score is found to be C in this case. It would be a presumptive probation case but for the
special rule that applies. The presumption is—disposition now is prison in this matter."
The district court's statements imply that the district court read the special sentencing rule
as transforming the presumptive probation sentence to a presumptive prison sentence. But
under the rule, the presumptive sentence is still probation. By treating the sentence as a
presumptive prison sentence, the district court limited its ability to impose a probation
sentence. As Parker correctly asserts, under a presumptive prison sentence he would need
to prove substantial and compelling reasons for the district court to impose probation.
If we thought that the judge simply misspoke at the sentencing hearing but clearly
understood that he had discretion to grant Parker's request for probation, we would find
no need to vacate the sentence. But we cannot reach that conclusion based on the record.
The district court found that the presumptive sentence in Parker's case "is prison" and
proceeded to deny his request for probation. Although it may be a subtle difference, the
presumptive sentence in Parker's case was probation even though the district court had
discretion to impose a nonprison sanction without constituting a departure.
We vacate Parker's sentence and remand for resentencing. On remand, the district
court is not prohibited from imposing a prison sentence under the special sentencing rule.
But if the district court does so, it must recognize that such a sentence is discretionary as
the presumptive sentence is still probation. Because we are remanding for resentencing,
we need not reach Parker's second claim that the sentencing court's use of judicial
findings of prior convictions to increase his sentence violates the Kansas Constitution.
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Sentence vacated and case remanded with directions.
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