Friday, November 18, 2011

Can't appeal "extent" of dispositional departure

Steven M. Joseph, Christopher M. Joseph, and Sonya L. Strickland won in State v. Johnson, No. 105,241 (Kan. App. Nov. 10, 2011)(unpublished), affirming Judge Schmidt's downward departure sentence in a Shawnee County attempted electronic solicitation case.  The parties had entered into a plea agreement in which they agreed that Mr. Johnson would go to prison, but that the parties would jointly recommend the low number in the box-55 months.  Judge Schmidt sua sponte gave notice that she was considering a dispositional depature to ISP for 60 months.  After receiving substantial psychological evidence, Judge Schmidt imposed the middle of the box and granted the dispositional depature to ISP.

The COA first held that although a party can appeal the extent of a durational departure, it cannot appeal the "extent" of a dispisitonal departure--there is either a dispositional departure or there is not.  And the state in this case admitted that the district court's findings underlying the departure were substantial and compelling.

The state's last point on appeal was that the district court shouldn't have considered some of the psychological evidence as a basis for the dispositional departure.  The COA held that the state had failed to reserve this question for appeal:
Here, the State is not appealing from an order dismissing a charging document, from an order arresting judgment, or upon an order granting a new trial. Also, when the district court overruled the State's objection to the admission of the doctors' reports, the State did not reserve the question for appeal. Further, K.S.A. 21-4721(a) does not provide authority for this court to consider the State's second issue on appeal. This statute allows the State to appeal a departure sentence, and the State has appealed Johnson's departure sentence in the first issue of its brief. However, the State provides no authority for this court's jurisdiction to address the second issue on appeal, which is either a complaint that Johnson breached the plea agreement or a complaint that the district court erroneously considered evidence in a sentencing hearing. Without a question reserved by the prosecution, we conclude there is no statutory authority for this court to consider the State's second issue on appeal.


As a result, the COA dismissed the second issue on appeal.  It's sort of interesting to consider that, even had the state properly reserved the issue for appeal, would it have mattered to Mr. Johnson?  An appeal on a question reserved presupposes that the matter is concluded and that the outcome of the appeal should not affect a defendant.

[Update: the state did not file a PR and the mandate issued on December 14, 2011.]

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