State v. Young

S
                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              No. 119,265

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                           PAUL B. YOUNG,
                                             Appellant.


                                   SYLLABUS BY THE COURT

        Appellate courts lack jurisdiction to review a sentencing judge's decision applying
K.S.A. 2020 Supp. 21-6606 and ordering a defendant to serve a consecutive sentence for
a crime committed while on felony probation rather than applying K.S.A. 2020 Supp. 21-
6819(a) and ordering a concurrent sentence because manifest injustice results from
consecutive sentences.


        Review of the judgment of the Court of Appeals in 

56 Kan. App. 2d 1146

, 

442 P.3d 543

 (2019).
Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed July 9, 2021.
Judgment of the Court of Appeals dismissing the appeal is affirmed.


        Sam Schirer, of Kansas Appellate Defender Office, was on the briefs for appellant.


        Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.




                                                     1
The opinion of the court was delivered by



      LUCKERT, C.J.: Paul B. Young committed a felony while on probation for another
felony conviction. The sentencing judge ordered Young to serve the presumptive
sentence for his new conviction under the Kansas Sentencing Guidelines Act (KSGA),
K.S.A. 2020 Supp. 21-6801 et seq. The judge also ordered Young to serve his new
sentence consecutive to the sentence for the earlier crime. This order applied K.S.A. 2020
Supp. 21-6606, which directs sentencing judges to impose a consecutive sentence in
certain circumstances that include when the defendant commits a crime while on
probation for a felony. Young appeals, contending the sentencing judge erred by ordering
him to serve a consecutive sentence. He argues the judge should have applied K.S.A.
2020 Supp. 21-6819(a), which allows a judge to impose concurrent sentences if the term
of imprisonment resulting from application of K.S.A. 2020 Supp. 21-6606 would be
manifestly unjust.



      The Court of Appeals panel hearing Young's appeal did not reach the merits of his
arguments, however. Instead, the panel's majority decided appellate courts lacked
jurisdiction over the appeal. Those judges reasoned that the sentencing judge imposed a
presumptive sentence and Kansas appellate courts lack jurisdiction to review presumptive
sentences because of a jurisdictional limitation imposed in K.S.A. 2020 Supp. 21-
6820(c)(1). State v. Young, 

56 Kan. App. 2d 1146

, 1149, 1153, 

442 P.3d 543

 (2019). One
judge dissented, concluding the presumptive sentence definition in the KSGA does not
cover the rule in K.S.A. 2020 Supp. 21-6606 requiring a consecutive sentence when a
defendant commits a crime while on felony probation. She thus reasoned the restriction
on appellate review of presumptive sentences did not extend to decisions about whether

                                            2
manifest injustice results from consecutive sentences. 56 Kan. App. 2d at 1153-54
(Arnold-Burger, C.J., dissenting).



       We agree with the dissenting view that the definition of a presumptive sentence
does not envelope the sentencing judge's decision about whether to impose consecutive
or concurrent sentences. Even so, the Legislature did not allow appellate review of
decisions to impose consecutive sentences imposed under K.S.A. 2020 Supp. 21-6606.
Instead, it instructed that K.S.A. 2020 Supp. 21-6820 applies "to sentences imposed
pursuant to a presumptive sentencing guidelines system" of "the revised Kansas
sentencing guidelines act, article 68 of chapter 21 of the Kansas Statutes Annotated."
(Emphasis added). K.S.A. 2020 Supp. 22-3602(f). The provisions in K.S.A. 2020 Supp.
21-6606, directing consecutive sentences in Young's situation, and K.S.A. 2020 Supp.
21-6819(a), providing the manifest injustice exception to the directive in 21-6606, are
part of the legislatively prescribed presumptive sentencing guidelines system. K.S.A.
2020 Supp. 21-6820 thus dictates appellate jurisdiction over sentences imposed under the
presumptive guideline system even if a sentencing judge imposes a presumptive sentence,
such as Young's. And K.S.A. 2020 Supp. 21-6820 does not supply appellate jurisdiction
over a sentencing judge's discretionary determination that manifest injustice does not
arise from consecutive sentences imposed under K.S.A. 2020 Supp. 21-6606.


       We thus hold we lack jurisdiction, and we affirm the Court of Appeals decision to
dismiss this appeal.




                                             3
                       FACTUAL AND PROCEDURAL BACKGROUND


       In 2017, the State charged Young with his fourth offense of violating the Kansas
Offender Registration Act (KORA), K.S.A. 22-4901 et seq. The State alleged that he did
not register the address of his new residence within three business days of moving as
KORA mandates. Young was on probation from a 2016 conviction for a KORA violation
when he committed the 2017 offense.


       Young pleaded guilty in the 2017 case without reaching an underlying plea
agreement with the State. Before sentencing, he moved for a durational departure based
on mitigating factors. In his motion, Young characterized the circumstances of his
violation as an unfortunate misunderstanding. Young said his employer paid him to
remodel a home and suggested he might be able to rent the home from the owner. The
employer also moved some furniture into the home for Young's use. But the property
owner had rented the residence and told Young to remove the belongings. Young said he
could not do so immediately, and ultimately the property owner called police who
arrested Young for trespassing and failing to register a new address.


       Young, while admitting he did not register within three days of changing his
residence as required by KORA, argued he had only been at the new place for eight days.
He also pointed out that he took responsibility for his failure by pleading guilty even
without a plea agreement. And 18 years had passed since he committed the crime that
caused his KORA registration obligation—a conviction of aggravated indecent liberties
with a child under 14 years.


       At the sentencing hearing, Young's attorney repeated the arguments in Young's
motion and asked the court to impose a departure sentence. He also asked the judge to
                                             4
find that consecutive sentences would be manifestly unjust and to impose concurrent
sentences. The assistant district attorney disagreed with Young's characterization of the
facts, saying he was trying to manipulate the system. She argued that Young told deputies
he had been staying at the new residence for about three weeks and that deputies found
clothing and furniture there. She also pointed out that Young had three prior convictions
of failing to register and was aware of the registration requirements.


       The sentencing judge denied Young's motion. The judge did not use the words
"manifest injustice," but he declined to find "substantial and compelling" reasons to grant
a departure. The judge first revoked probation and imposed the underlying 61-month
sentence in the 2016 case. He then imposed the presumptive minimum sentence of 89
months for the 2017 case. This sentence reflected the mitigated term in the grid box
corresponding with the severity level of Young's offense and his criminal history. The
judge ordered Young to serve the 89 months consecutive to the sentence in the 2016 case.


       Young appealed to the Court of Appeals, arguing the judge erred in not finding
manifest injustice resulted from the consecutive sentences. The State responded, arguing
appellate courts could not review decisions about whether to impose concurrent or
consecutive sentences when a judge imposes presumptive sentences as it had when
sentencing Young.


       A majority of the Court of Appeals panel agreed with the State's argument and
dismissed the appeal for lack of jurisdiction. Citing K.S.A. 2020 Supp. 21-6820(c)(1), the
majority noted appellate courts lack jurisdiction to review a sentence within the
presumptive guidelines range. Young, 56 Kan. App. 2d at 1149, 1153. A dissenting
member of the panel concluded a determination that manifest injustice did not arise from
consecutive sentences falls outside the jurisdictional limitations of K.S.A. 2020 Supp. 21-
                                             5
6820 and the Court of Appeals had jurisdiction. But, moving to the merits of the motion,
she concluded the sentencing judge did not abuse his discretion when he imposed
consecutive sentences. 56 Kan. App. 2d at 1153 (Arnold-Burger, C.J., dissenting).


       Young timely filed a petition for review, which this court granted.


                                          ANALYSIS


       Young argues the Court of Appeals majority erred because he is not appealing
from the presumptive sentence. Rather, he appeals the judge's decision to order him to
serve consecutive sentences and the judge's negative implicit finding that no manifest
injustice resulted from the cumulative length of the two sentences. He urges us to adopt
the Court of Appeals' dissent and hold we have jurisdiction under K.S.A. 2020 Supp. 22-
3602, which broadly grants jurisdiction. He also urges us to reach the merits of whether
manifest injustice resulted. On this point, he asks us to disagree with the dissent and to
reverse and remand his case for resentencing.


       We necessarily begin our analysis of Young's appeal by analyzing whether we
have jurisdiction. The question of jurisdiction must be our starting point because Kansas
courts have the judicial power to decide only those matters over which they have
jurisdiction. State v. Smith, 

309 Kan. 977

, 982, 

441 P.3d 1041

 (2019). Thus, "[i]f subject
matter jurisdiction is in question, that issue needs to be resolved first. The merits come
second." State v. Huerta, 

291 Kan. 831

, 840-41, 

247 P.3d 1043

 (2011).


       To determine jurisdiction, we must first examine the relevant jurisdictional
statutes because, in Kansas, "[a]ppellate jurisdiction is defined by statute; the right to
appeal is neither a vested nor a constitutional right." Kansas Medical Mut. Ins. Co. v.
                                               6
Svaty, 

291 Kan. 597

, 609, 

244 P.3d 642

 (2010). Thus, a jurisdiction question involves
statutory interpretation and presents a question of law. Smith, 309 Kan. at 982.


       Statutory interpretation begins with the words of the statute because the words
chosen by the Legislature are the best expression of legislative intent. If those words are
unambiguous, we do not add or ignore words. And we do not look to extraneous sources
to discern intent. Instead, we look to legislative history, background considerations that
speak to legislative purpose, or canons of statutory construction only if the statute is
ambiguous. State v. Gross, 

308 Kan. 1

, 10, 

417 P.3d 1049

 (2018).


       Turning to the statutory basis for appellate jurisdiction, we begin with K.S.A. 60-
2101. That statute invests the Court of Appeals (see K.S.A. 60-2101[a]) and the Supreme
Court (see K.S.A. 60-2101[b]) with jurisdiction to "correct, modify, vacate or reverse any
act, order or judgment of a district court" when necessary "to assure that any such act,
order or judgment is just, legal and free of abuse." While this broad grant of jurisdiction
is seemingly unlimited, other language in K.S.A. 60-2101 narrows its scope. The limiting
phrase most relevant here declares that criminal appellate jurisdiction "shall be subject
to" or "prescribed by K.S.A. 22-3601 and 22-3602, and amendments thereto." K.S.A. 60-
2101(a) and (b).


       The first of these two statutes, K.S.A. 2020 Supp. 22-3601, limits jurisdiction by
specifying which of Kansas' two appellate courts—the Court of Appeals or the Supreme
Court—is the court with jurisdiction to first hear an appeal. Young properly began this
appeal in the Court of Appeals and, once that court decided his appeal, properly brought
his appeal before us on a petition for review. See K.S.A. 20-3018(b) (allowing petitions
for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has


                                              7
jurisdiction to review Court of Appeals decisions upon petition for review). No question
arises about the jurisdictional limits set out in K.S.A. 2020 Supp. 22-3601.


       The second statute addressing jurisdiction over criminal appeals referenced in
K.S.A. 60-2101(a) and (b) is K.S.A. 2020 Supp. 22-3602. It broadly grants jurisdiction in
an appeal brought by a criminal defendant of "any decision of the district court or
intermediate order made in the progress of" a criminal case. (Emphasis added.) Young
asserts this provision provides us jurisdiction over his appeal. But K.S.A. 2020 Supp. 22-
3602 also includes language narrowing our jurisdiction. Four important words—"[e]xcept
as otherwise provided"—precede this broad grant of jurisdiction. K.S.A. 2020 Supp. 22-
3602(a). In addition, particularly relevant here, subsection (f) refers to yet another
statute—K.S.A. 2020 Supp. 21-6820—that applies if an appeal relates "to sentences
imposed pursuant to a presumptive sentencing guidelines system" of "the revised Kansas
sentencing guidelines act, article 68 of chapter 21 of the Kansas Statutes Annotated."
K.S.A. 2020 Supp. 22-3602(f). Thus, if Young's sentence is part of the presumptive
guidelines system, K.S.A. 2020 Supp. 21-6820 controls our jurisdiction.


       The Court of Appeals' majority held K.S.A. 2020 Supp. 21-6820 dictates the
outcome of this appeal. In doing so, it focused on subparagraph (c)(1). But the dissent
argued (c)(1) did not control, nor did any other part of the statute. To supply context to
our discussion of these conflicting views, we set out (c)(1) and other parts of the statute
that detail the sentencing issues an appellate court can and cannot review on appeal:


       "(a) A departure sentence is subject to appeal by the defendant or the state. The appeal
       shall be to the appellate courts in accordance with rules adopted by the supreme court.


       ....

                                                    8
      "(c) On appeal from a judgment of conviction entered for a felony committed on or after
      July 1, 1993, the appellate court shall not review:


              (1) Any sentence that is within the presumptive sentence for the crime; or


              (2) any sentence resulting from an agreement between the state and the
              defendant which the sentencing court approves on the record.
              ....


      "(e) In any appeal from a judgment of conviction, the appellate court may review a claim
      that:


              (1) A sentence that departs from the presumptive sentence resulted from
              partiality, prejudice, oppression or corrupt motive;


              (2) the sentencing court erred in either including or excluding recognition
              of a prior conviction or juvenile adjudication for criminal history scoring
              purposes; or


              (3) the sentencing court erred in ranking the crime severity level of the
              current crime or in determining the appropriate classification of a prior
              conviction or juvenile adjudication for criminal history purposes."
              K.S.A. 2020 Supp. 21-6820.


      None of these provisions explicitly refers to a judge's decision about whether a
defendant must serve multiple sentences concurrently or consecutively. Without such a
provision, the parties and the Court of Appeals discuss subsections (a), under which an
appellate court can review a departure sentence, and (c)(1), under which an appellate
court cannot review a presumptive sentence.

                                                   9
       The Legislature specifies presumptive sentences on sentencing grids for most
crimes. A "'presumptive sentence' means the sentence provided in a grid block for an
offender classified in that grid block by the combined effect of the crime severity ranking
of the offender's current crime of conviction and the offender's criminal history." K.S.A.
2020 Supp. 21-6803(q); see K.S.A. 2020 Supp. 21-6804(f) (applying to nondrug crimes);
K.S.A. 2020 Supp. 21-6805(d) (applying to drug crimes; same provision). The grids also
include dispositional lines that divide sentences into three categories: presumptive
prison, presumptive probation, and so-called border boxes where special rules apply that
give the sentencing judge more discretion on whether the disposition will be prison or
probation. K.S.A. 2020 Supp. 21-6804(a), (d) (applying to nondrug crimes); K.S.A. 2020
Supp. 21-6805(a), (d) (applying to drug crimes).


       "[T]he sentencing judge shall impose the presumptive sentence provided by the
sentencing guidelines unless the judge finds substantial and compelling reasons to impose
a departure sentence." K.S.A. 2020 Supp. 21-6815(a). A departure sentence can relate to
the disposition or the duration of the sentence and can impose a lesser or a greater
sentence. See K.S.A. 2020 Supp. 21-6815 through 21-6818.


       The sentencing grid does not include a handful of crimes, including first-degree
and felony murder. The KSGA labels these crimes as off-grid. Off-grid crimes are not in
any grid blocks and thus do not fall within the statutory definition of "presumptive
sentence." State v. Ortega-Cadelan, 

287 Kan. 157

, 163, 

194 P.3d 1995

 (2008).


       Here, both parties agree the judge sentenced Young for two on-grid crimes and he
received a term of imprisonment consistent with the severity level of his crimes and his
criminal history. This means that Young received a presumptive sentence because the
                                             10
sentencing judge imposed a prison sentence (the presumptive disposition) for a term of
months in the grid block that corresponds to the crime severity of his crimes of
conviction and his criminal history.


       That Young received a presumptive sentence and that the sentencing judge did not
depart was critical to the holding of the Court of Appeals majority which stated:


       "Consecutive presumptive sentences under the Kansas Sentencing Guidelines Act do not
       constitute sentencing departures and are not appealable. State v. Jacobs, 

293 Kan. 465

,
       466, 

263 P.3d 790

 (2011).


               "Accordingly, we do not have jurisdiction to consider Young's issue on appeal.
       This appeal is dismissed for lack of jurisdiction." Young, 56 Kan. App. 2d at 1153.


       But Young argues the Court of Appeals erred when it relied on State v. Jacobs,

293 Kan. 465

, 466, 

263 P.3d 790

 (2011), because this court has questioned the cases on
which Jacobs relied. Jacobs cites State v. Flores, 

268 Kan. 657

, 

999 P.2d 919

 (2000), as
authority. And, as Young correctly notes, in State v. Ross, 

295 Kan. 1126

, Syl. ¶ 12, 

289
P.3d 76

 (2012), this court disapproved the holding in Flores and in State v. Ware, 

262
Kan. 180

, 

938 P.2d 197

 (1997). Our disapproval arose because Ross, Flores, and Ware
involved consecutive sentences relating to at least one off-grid crime. In Ross, we
recognized that Flores and Ware relied on the sentencing grid's definition of presumptive
sentences even though off-grid crimes fall outside the definition. Ross, 295 Kan. at 1136-
39; see K.S.A. 2020 Supp. 21-6806(c); Ortega-Cadelan, 287 Kan. at 163 (definition of
"presumptive sentence" does not apply to off-grid crime).


       Here, however, all of Young's convictions arise from on-grid crimes. And this
court has applied similar reasoning to that in Flores and Ware in cases involving
                                                  11
consecutive on-grid crimes, including Jacobs. That distinction supplies at least a
superficial reason to say that Ross' disapproval of Flores and Ware does not affect this
case. But Ross' analysis cannot be dismissed on that basis alone because, just as the
definition of presumptive sentence does not include off-grid crimes, it does not address
consecutive or concurrent sentences. Because of this silence, Young argues the plain
language of the statute requires us to revisit the rationale of Jacobs and similar cases
involving consecutive sentences for on-grid crimes. We thus must dive deeper to analyze
whether Ross' disapproval of Flores and Ware brings doubt on the validity of the holding
in Jacobs and similar cases about multiple on-grid convictions.


       Our dive begins with the KSGA provision covering sentences for multiple
convictions: K.S.A. 2020 Supp. 21-6819. That statute is part of the KSGA and article 68.
It thus falls within the directive of K.S.A. 2020 Supp. 22-3602(f) ("[A]n appeal by the
prosecution or the defendant relating to sentences imposed pursuant to a presumptive
sentencing guidelines system as provided in . . . the revised Kansas sentencing guidelines
act, article 68 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto,
shall be as provided in . . . K.S.A. 21-6820, and amendments thereto.").


       K.S.A. 2020 Supp. 21-6819 does not itself address the circumstances of this case
in which Young was on probation when he committed a felony. But, in subsection (a), it
incorporates a pre-KSGA statute that does address Young's situation and then, in
subsection (b), addresses other multiple sentences:


       "(a) The provisions of subsections (a), (b), (c), (d), (e) and (h) of K.S.A. 21-6606, and
       amendments thereto, regarding multiple sentences shall apply to the sentencing of
       offenders pursuant to the sentencing guidelines. The mandatory consecutive sentence
       requirements contained in subsections (c), (d) and (e) of K.S.A. 21-6606, and

                                                    12
       amendments thereto, shall not apply if such application would result in a manifest
       injustice.


       "(b) The sentencing judge shall otherwise have discretion to impose concurrent or
       consecutive sentences in multiple conviction cases. The sentencing judge may consider
       the need to impose an overall sentence that is proportionate to the harm and culpability
       and shall state on the record if the sentence is to be served concurrently or
       consecutively." K.S.A. 2020 Supp. 21-6819.


       K.S.A. 2020 Supp. 21-6819(a)'s incorporation of K.S.A. 2020 Supp. 21-6606
leads to a general rule directing the sentencing judge to order Young to serve consecutive
sentences unless manifest injustice would result. Specifically, K.S.A. 2020 Supp. 21-
6606(c) states: "(c) Any person who is convicted and sentenced for a crime committed
while on probation . . . for a felony shall serve the sentence consecutively to the term or
terms under which the person was on probation." And then K.S.A. 2020 Supp. 21-
6819(a) allows for concurrent sentences if applying the consecutive sentence directive
would result in manifest injustice.


       Young's argument focuses on these provisions. He contends the judge's application
of K.S.A. 2020 Supp. 21-6606 and his request for a manifest injustice finding under
K.S.A. 2020 Supp. 21-6819(a) fall outside the presumptive sentence limitation on
appellate jurisdiction and should be appealable issues. The dissenting judge in the Court
of Appeals agreed, reasoning, in part:


               "The rule is not part of the KSGA. It only comes into the purview of the KSGA
       because the KSGA allows the judge to depart from this special mandatory rule in KSGA
       cases if the judge finds that to apply the rule would result in manifest injustice. K.S.A.
       2018 Supp. 21-6819(a). The cases cited by the majority expressing the general rule that
       the imposition of consecutive presumptive guideline sentences does not constitute a
                                                    13
       departure do not involve application of the special rule. Accordingly, they have no
       application to this discussion." 56 Kan. App. 2d at 1157 (Arnold-Burger, C.J.,
       dissenting).


       Placing this reasoning in the context of the relevant jurisdictional statutes, to adopt
this view we would need to say: First, Young can appeal the ruling because K.S.A. 2020
Supp. 21-6606 is not in article 68. Second, thus the directive in K.S.A. 2020 Supp. 22-
3602(f) does not apply. Third, this, in turn, means that the appellate limitations of K.S.A.
2020 Supp. 21-6820 do not apply. See K.S.A. 2020 Supp. 22-3602(f) ("[S]entences
imposed pursuant to a presumptive sentencing guidelines system as provided in . . . the
revised Kansas sentencing guidelines act, article 68 of chapter 21 of the Kansas Statutes
Annotated, and amendments thereto, shall be as provided in . . . K.S.A. 21-6820, and
amendments thereto."); K.S.A. 2020 Supp. 21-6820 (defining appealable KSGA issues).
But we cannot take these steps in the reasoning.


       First, although K.S.A. 2020 Supp. 21-6606 is not in article 68, K.S.A. 2020 Supp.
21-6819 incorporates some of its provisions, including subsection (c), into the KSGA.
And K.S.A. 2020 Supp. 21-6819 states the manifest injustice exception. Second, the
directive in K.S.A. 2020 Supp. 22-3602(f) does apply. K.S.A. 2020 Supp. 22-3602(f)
does not limit its scope to statutes only found in the KSGA or article 68 of chapter 21.
Instead, as we have emphasized, it applies to all sentences ordered under the guidelines
system set out in article 68. K.S.A. 2020 Supp. 21-6819(a)'s incorporation of K.S.A. 2020
Supp. 21-6606 brings 21-6606 into the system provided for in article 68. Plus, the only
place the manifest injustice special rule is found is 21-6819(a), which is part of the
KSGA and article 68. Thus, the application of K.S.A. 2020 Supp. 21-6820 cannot be
dismissed just because 21-6606 requires Young to serve a consecutive sentence unless



                                                  14
doing so would be manifestly unjust. So, third, the appellate limitations of K.S.A. 2020
Supp. 21-6820 do apply.


       This brings us back to K.S.A. 2020 Supp. 21-6820's silence about consecutive and
concurrent sentences generally and, more specifically, about applying the manifest
injustice special rule. As we have noted, Young argues we can discern legislative intent
through the statute's plain language despite this silence. We disagree. The silence leaves a
gap that creates an ambiguity. Cf. State v. Quested, 

302 Kan. 262

, 268, 

352 P.3d 553

(2015) (legislative silence on whether sentence can be imposed consecutive to out-of-
county sentence creates an ambiguity that permits rules of construction and other aids for
statutory construction). And, from the time of the KSGA's adoption, appellate courts have
filled this gap caused by silence about consecutive and concurrent sentences by
examining legislative history and applying rules of construction—tools we implement
only when an ambiguity exists. Gross, 308 Kan. at 10; see State v. McCallum, 

21 Kan.
App. 2d 40

, 46, 

895 P.2d 1258

 (1995) (construing language now found in K.S.A. 2020
Supp. 21-6820 to hold defendant could not appeal sentencing judge's decision to run
sentences consecutive; noting rule of construction "may be applied to assist in
determining actual legislative intent which is not otherwise manifest"). Kansas appellate
courts have addressed this ambiguity in several decisions.


       Soon after the Legislature adopted the KSGA, in State v. Peal, 

20 Kan. App. 2d
816

, 

893 P.2d 258

 (1995), a Court of Appeals panel considered whether it had
jurisdiction to consider Vick T. Peal's challenge to a sentencing judge's decision to
impose consecutive presumptive sentences for aggravated robbery and robbery. The
panel held it lacked jurisdiction. Its decision rested on several rationales.



                                              15
       First, it reasoned the lack of any mention of the right to appeal the imposition
made it proper to "[a]pply[] the maxim expressio unius est exclusio alterius," which
means the expression of one thing is the exclusion of the other. 20 Kan. App. 2d at 821.
Applying that maxim, the panel reasoned, "leads to the conclusion that the legislature did
not intend this court to entertain sentencing appeals on grounds other than those stated in
K.S.A. 1993 Supp. 21-4721 [now K.S.A. 2020 Supp. 21-6820]." 20 Kan. App. 2d at 821.
The panel concluded this meant that appellate court "jurisdiction to consider an appeal
challenging a sentence imposed pursuant to the KSGA is limited to those grounds
specified in K.S.A. 1993 Supp. 21-4721(a) and (e) and illegal sentences." 20 Kan. App.
2d at 821.


       Second, the Peal panel distinguished consecutive sentences from departure
sentences. The panel noted the sentencing judge had not imposed a departure sentence
because both sentences were presumptive sentences. It then cited and quoted the Kansas
Sentencing Guidelines Act Implementation Manual (1992), p. 4-17, which stated: "'In
contrast to departure sentences, consecutive nondeparture sentences are not appealable.'
(Emphasis in original.)" 20 Kan. App. 2d at 822.


       Finally, the Peal panel approvingly quoted State v. Starks, 

20 Kan. App. 2d 179

,
183, 

885 P.2d 387

 (1994), where another Court of Appeals panel, although addressing
another issue, had observed that the provisions of K.S.A. 1993 Supp. 21-4721(c)(1) [now
K.S.A. 2020 Supp. 21-6820] were "'adopted by the legislature to foreclose the type of
appeals which had previously been lodged under the former statutory scheme alleging
that the sentencing court abused its discretion.'" Peal, 20 Kan. App. 2d at 823. The Peal
panel then concluded it "is consistent with the legislature's intent to foreclose such
appeals" of a sentencing judge's decision to impose concurrent or consecutive sentences.
20 Kan. App. 2d at 823.
                                             16
       A year later, in McCallum, 

21 Kan. App. 2d 40

, another Court of Appeals panel
reached the same holding under the same rationales. It also discussed arguments raised by
the defendant that had not been discussed in Peal. Addressing these additional arguments,
it first rejected the contention that K.S.A. 1993 Supp. 21-4721 [now K.S.A. 2020 Supp.
21-6820] had to be construed in favor of the defendant given that "although consecutive
sentences per se are not included in the list of issues which may be appealed under
K.S.A. 1993 Supp. 21-4721(a) and (e), neither are they listed among those issues which
cannot be appealed under subsection (c)." 21 Kan. App. 2d at 45. It also rejected an
argument that it should allow appeals because doing so would adhere to pre-KSGA
caselaw. The panel rejected both arguments because the legislative history showed that
the Legislature intended a change in the law. 21 Kan. App. 2d at 49.


       The McCallum panel also discussed the manifest injustice provision upon which
Young relies. See K.S.A. 2020 Supp. 21-6819(a) (formerly codified at K.S.A. 1993 Supp.
21-4720[a]). But it did not decide whether application of the manifest injustice provision
was appealable because the provision did not apply under the facts. Terry W. McCallum's
consecutive sentences arose from multiple convictions in the same case rather than
because the defendant committed a new offense while on probation. The panel noted,
however, that "the legislature has provided safeguards that prevent 'manifest injustice'"
unique to McCallum's situation. 21 Kan. App. 2d at 48 (citing K.S.A. 1993 Supp. 21-
4720[c][3] [now codified at K.S.A. 2020 Supp. 21-6819]). It thus viewed all these
decisions as involving similar constrained discretion.


       This court first addressed the issue of whether a defendant could appeal a
sentencing judge's decision to impose consecutive or concurrent sentences in Ware, 

262
Kan. 180

.
                                            17
       The Ware court rejected an argument that the Court of Appeals wrongly decided
Peal and McCallum. In fact, it quoted the analysis in Peal and then stated: "We agree
therewith. . . . The issue raised by the defendant is not an appealable issue. Accordingly,
the appeal must be dismissed for lack of jurisdiction." Ware, 

262 Kan. at 184

. As we
have discussed, in Ross, we recognized that Gregory E. Ware's off-grid conviction
distinguished his situation from the presumptive sentence rationale. See Ross, 295 Kan. at
1136-39.


       This court followed Ware in Flores, 

268 Kan. at 660,

 which we also disapproved
in Ross, 295 Kan. at 1136-39. Flores arose from consecutive sentences of life
imprisonment for first-degree felony murder and 34 months' imprisonment for attempted
voluntary manslaughter. This court cited the holding in Ware and reaffirmed it. Flores,

268 Kan. at 660

.


       Both Ware and Flores thus embraced the rationale of Peal and McCallum. And,
while Ross held that rationale did not apply when the sentencing relates to off-grid
crimes, it did not criticize the rationale when applied to appeals arising from on-grid
presumptive sentences. Ross, 295 Kan. at 1136-39. And, in cases involving on-grid
crimes only, this court has reaffirmed the rule that a sentencing judges' decision about
whether to impose consecutive or concurrent sentences in multiple conviction sentences
within a case is not an appealable decision. See, e.g., Jacobs, 293 Kan. at 466 (citing
Flores); State v. Bramlett, 

273 Kan. 67

, 68, 

41 P.3d 796

 (2002) (same).


       We agree with Young's argument that Ross weakens reliance on the definition of
presumptive sentence as a sole rationale for deciding this appeal. But the rationale of the
cases holding that appellate courts lack jurisdiction over sentencing decisions about
                                             18
concurrent versus consecutive sentences does not depend solely on the presumptive
sentence rationale. Instead, as we have discussed, the reasoning includes application of
rules of construction and reference to legislative history given the ambiguity arising
because K.S.A. 2020 Supp. 21-6820 does not explicitly address the appealability of
consecutive and concurrent sentences.


       But none of these cases specifically discuss the rule in the context of imposing a
consecutive sentence because a defendant was on probation when he or she committed a
new crime. Young argues he "is not asking an appellate court to review to a district
court's consecutive sentencing order. Rather, he is requesting review of the court's finding
that manifest injustice would not result from imposition of consecutive sentences
between his cases."


       Young and the Court of Appeals cite the only case that appears to have addressed
the specific question of an appellate court's jurisdiction under K.S.A. 2020 Supp. 21-
6819(a). Young, 56 Kan. App. 2d at 1150-51; 56 Kan. App. 2d at 1157-58 (Arnold-
Burger, C.J., dissenting). In that case, State v. Rose, No. 90,111, 

2004 WL 117358

 (Kan.
App. 2004) (unpublished opinion), Steven A. Rose, like Young, was on probation for a
felony when he committed and later pleaded guilty to another felony. The sentencing
court sentenced Rose to concurrent sentences after revoking probation in the earlier case
and while announcing a sentence in the latter case. On appeal, the parties' positions were
flipped from the arguments made here. On a question reserved, the State argued it should
be able to appeal a sentencing court's decision to impose concurrent sentences after
finding manifest injustice.


       The Rose panel discussed Ware and distinguished it because "the only discretion
the district court had was in deciding whether manifest injustice would result in the
                                             19
otherwise mandatory consecutive sentences, not in deciding whether to order consecutive
or concurrent sentences." 

2004 WL 117358

, at *2. The panel agreed with the State that
appellate courts have jurisdiction to review a sentencing court's finding of manifest
injustice. 

2004 WL 117358

, at *3.


       Chief Judge Arnold-Burger, in her dissent in Young's appeal, agreed with the
reasoning in Rose, explaining:


       "Under K.S.A. 2018 Supp. 21-6819(a) a court has the discretion to determine whether
       manifest injustice exists to override the mandatory non-KSGA sentencing rule in K.S.A.
       2018 Supp. 21-6606(c). Such a decision is distinctively different than whether to impose
       consecutive or concurrent presumptive KSGA sentences and is more akin to a departure
       sentence. This interpretation is further bolstered by the language of K.S.A. 2018 Supp.
       21-6819(b). In context, immediately following the provision in subsection (a) indicating
       that concurrent sentences in combination probation and new crime sentencing cases can
       be given upon a finding that it would result in manifest injustice to give consecutive
       sentences, subsection (b) says: 'The sentencing judge shall otherwise have discretion to
       impose concurrent or consecutive sentences in multiple conviction cases.' (Emphasis
       added.) This language indicates that application of subsection (a) is different than the
       standard consecutive/concurrent sentencing discretion discussed in cases cited by the
       majority." Young, 56 Kan. App. 2d at 1158.


       We agree the manifest injustice special rule creates a different test when
exercising discretion in the decision-making process about whether to impose a
consecutive or concurrent sentence. In most multiple conviction cases, the Legislature's
direction to the sentencing judge is to exercise "discretion to impose concurrent or
consecutive sentences in multiple conviction cases" by "consider[ing] the need to impose
an overall sentence that is proportionate to the harm and culpability." K.S.A. 2020 Supp.
21-6819(b); see State v. Brune, 

307 Kan. 370

, 371, 

409 P.3d 862

 (2018) (decisions on
                                                    20
whether to impose a concurrent or consecutive sentence traditionally fall within the sound
discretion of sentencing courts); State v. Horn, 

302 Kan. 255

, 256-57, 

352 P.3d 549

(2015) (same). But when the defendant commits a crime while on felony probation, the
judge exercises discretion to decide if manifest injustice results. See State v. Cramer, 

17
Kan. App. 2d 623

, Syl. ¶ 5, 

841 P.2d 1111

 (1992) (manifest injustice "standard of review
. . . is whether the trial court has abused its discretion by imposing a sentence which is
obviously unfair and shocks the conscience of the court").


       Even so, in both situations the sentencing judge is exercising discretion. As noted
in McCallum, 21 Kan. App. 2d at 48, the Legislature put guardrails on the extent of the
discretion in both situations. And in both situations the exercise of discretion results in a
decision about whether to require consecutive or concurrent sentences. So, while the
guardrails may differ, the discretionary decision relates to the same outcome.


       Also, in both situations, the Legislature made no provision for appealing the
discretionary decision. See Ross, 295 Kan. at 1136-38. The lack of such a provision
underlies Jacobs' outcome and the outcome of the decisions on which it relies. We find
no basis to deviate from that rationale just because a sentencing judge's discretion arises
under K.S.A. 2020 Supp. 21-6819(a) rather than 21-6819(b). The Legislature, through
K.S.A. 2020 Supp. 22-3602(f), expressed its intent to have K.S.A. 2020 Supp. 21-6820
control all appeals arising from the presumptive sentencing guidelines system, not just
those dealing with presumptive sentences and departures. This intent supports applying
the maxim that the expression of one thing is meant to exclude the other and concluding
that the Legislature did not intend to grant appellate courts jurisdiction to hear appeals on
grounds other than those specified in K.S.A. 2020 Supp. 21-6820. Likewise, the
legislative history supports this conclusion.


                                                21
      Simply put, appellate courts lack jurisdiction to review a sentencing judge's
decision applying K.S.A. 2020 Supp. 21-6606 and ordering a defendant to serve a
consecutive sentence for a crime committed while on felony probation rather than
applying K.S.A. 2020 Supp. 21-6819(a) and ordering a concurrent sentence because
manifest injustice results from consecutive sentences. We thus conclude that the Court of
Appeals majority correctly held it lacked jurisdiction over Young's appeal.


      Judgment of the Court of Appeals dismissing the appeal is affirmed.




                                            22

Add comment

By

Recent Posts

Recent Comments