Opinion
111,591.
12-19-2014
STATE of Kansas, Appellee, v. Garry L. SAMMONS, Appellant.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Jacob G. Fishman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
Jacob G. Fishman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., LEBEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
LEBEN, J.
Garry Sammons appeals the district court's decision to send him to prison, contending that the court should have granted him probation. But Sammons' presumptive sentence under the Kansas sentencing guidelines was prison, and any decision to depart from that presumptive sentence is a discretionary call for the district court. We find no abuse of discretion in its denial of Sammons' request for probation, and we affirm the district court's judgment.
Factual and Procedural Background
Sammons pled guilty to burglary, theft, and (in a separate case) possession of methamphetamine under a plea agreement. The case before us on appeal involves only his burglary and theft convictions; in this case, the presumptive sentence for his most serious offense, in light of Sammons' criminal-history score (“A,” the most serious), was 30 to 34 months in prison. He also faced up to 12 months in jail for the misdemeanor theft conviction.
Under the plea agreement, the State and Sammons agreed to jointly recommend that the court grant a durational departure to a lower-than-guidelines sentence of 24 months. The parties also agreed to recommend a 24–month sentence on the methamphetamine-possession conviction, with the two felony sentences to be served consecutively. (Consecutive sentences were required by statute because Sammons committed the felony burglary while on conditional release on the methamphetamine-possession charge.) Both parties also agreed not to file any further departure motions, which meant that Sammons had agreed not to ask for probation.
But after the plea was accepted, Sammons filed a motion asking for a dispositional departure to probation. At sentencing, the district court explained to Sammons that by moving for a probation sentence, he had violated his plea agreement and the State would no longer be bound by that agreement. Sammons nonetheless asked to proceed on his motion.
The prosecutor still argued for a 24–month prison sentence, while Sammons asked for probation. He cited several reasons—including his age, mental and physical health, desire to get treatment for substance abuse, and the time elapsed since his earlier convictions—in support of his request. The prosecutor countered that Sammons had an extensive criminal history, had repeatedly violated the law, and had received many opportunities to reform his behavior.
The district court denied Sammons' motion for a dispositional departure to probation but granted a durational departure, giving him a 24–month prison sentence. In the separate methamphetamine-possession case, the court sentenced Sammons to 24 months in prison, with the sentence to run consecutively to the burglary sentence. The court also sentenced Sammons to 12 months in jail on the misdemeanor theft conviction, but made that sentence run concurrently to the 24–month felony sentence. Sammons has appealed to this court, arguing that the district court should have sentenced him to probation.
Analysis
We review a district court's decision to grant or to deny a request for a departure from sentencing guidelines only for an abuse of discretion. State v. Remmert, 298 Kan. 621, 629–30, 316 P.3d 154 (2014) ; State v. Grotton, 50 Kan.App.2d ––––, 337 P.3d 56, 61 (2014), petition for rev. filed Nov. 17, 2014. The district court abuses its discretion if its decision is based on an error of fact or law or if no reasonable person would agree with its judgment call. Remmert, 298 Kan. at 629 ; Grotton, 337 P.3d at 61.
We find no abuse of discretion here. Sammons was convicted of serious offenses for which prison was the presumptive guidelines sentence. Although the district court granted a durational departure to a shorter sentence than the guidelines called for, the court was not required to also grant a dispositional departure to probation. Sammons had an extensive criminal history and committed the burglary and theft offenses while on conditional release from the methamphetamine-possession charge. The district court noted that Sammons had not taken advantage of prior chances to correct his behavior. A reasonable person could conclude that prison was the appropriate sentence.
We should note that the State also argued on appeal that this court lacked jurisdiction to consider an appeal because K.S.A.2013 Supp. 21–6820(c)(2) provides that a defendant may not appeal a sentence “resulting from” a plea agreement. In this case, it's not at all clear that the sentence “result[ed] from” the plea agreement. Sammons violated the plea agreement by filing his motion for probation, and the State was no longer bound to recommend a 24–month sentence.
Because it is quite clear that Sammons loses his appeal on the merits, however, we conclude that we need not decide the jurisdictional issue to resolve this case. See Alvarado v. Holder, 743 F.3d 271, 276 (1st Cir.2014) (holding that court may “put aside ambiguous jurisdictional questions” under a statute “when precedent clearly dictates the result on the merits”); Starkey ex rel. A.B. v. Boulder County Soc. Servs., 569 F.3d 1244, 1262–63 (10th Cir.2009) (declining to consider a jurisdictional question where the party claiming jurisdiction would clearly lose on the merits); Sherrod v. Breitbart, 720 F.3d 932, 936–37 (D.C.Cir.2013) (holding that a court may presume jurisdiction and reach the merits when the answer to the merits issue is especially clear). The district court did not abuse its discretion by denying Sammons' motion for a departure sentence to probation.
The district court's judgment is affirmed.