STATE OF KANSAS v. DOUGLAS WAYNE SHOBE

Shobe pleaded no contest to two counts of theft (severity level 9 nonperson felonies) and one count of forgery (a severity level 8 nonperson felony). Shobe committed these offenses while on felony probation.

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Before sentencing, the parties entered into a plea agreement which included a recommended sentence for "probation and to run the cases concurrent with the termination of [Shobe's] old cases." The presentence investigation (PSI) report listed Shobe's criminal history score as an E and showed that the crimes fell within the presumptive probation range. The PSI also showed that special rules 9 and 16 applied for a "crime committed while on felony probation" and "second forgery," respectively. Shobe's appeal alleges a conflict between these two special rules.



At sentencing, Shobe asked the trial court not to impose a prison sentence under special rule 9, K.S.A. 2017 Supp. 21-6604(f)(1), to allow him the opportunity to work and pay back restitution immediately. But the trial court denied Shobe's request for probation and sentenced him to the standard underlying sentence of 14 months in prison for the forgery conviction and concurrent 6 month terms for the thefts.



Shobe timely appeals this sentencing decision, arguing that his sentence is illegal because the trial court failed to apply special rule 16—K.S.A. 2017 Supp. 21-5823(b)(3) and K.S.A. 2017 Supp. 21-6804(i), which he contends would have required his probation.



But we must first address the State's contention that we lack jurisdiction to address Shobe's arguments because he received a presumptive sentence. Shobe has not responded to this argument and has not disputed that he received a presumptive sentence.



All felony crimes committed on or after July 1, 1993, are sentenced according to the revised Kansas Sentencing Guidelines Act and prosecuting standards. K.S.A. 2017 Supp. 21-6802(c). Appellate courts shall not review a sentence for a felony conviction that is within the presumptive guidelines sentence for the crime. K.S.A. 2017 Supp. 216820(c); see State v. Sprung, 294 Kan. 300, 317, 277 P.3d 1100 (2012). A presumptive sentence is defined as



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"'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. 2017 Supp. 21-6803(q); see also State v. Ortega-Cadelan, 287 Kan. 157, 163-64, 194 P.3d 1195 (2008) (interpreting 'presumptive sentence' under K.S.A. 21-4703[q])." State v. Weekes, 308 Kan. 1245, 1249, 427 P.3d 861 (2018).



The sentencing grid blocks are divided into presumptive prison sections and presumptive nonprison sections. See K.S.A. 2017 Supp. 21-6804(a)-(f). An offender with a criminal history score E who commits a severity level 8 nonperson felony generally falls into a presumptive nonprison box on the sentencing guidelines grid. See K.S.A. 2017 Supp. 21-6804(a). Under that statute, Shobe's sentence was presumptive probation.



But a special rule applies giving the trial court discretion to impose a prison sentence even though a presumptive nonprison sentence applies. K.S.A. 2017 Supp. 216604(f)(1) provides the trial court with the discretion to impose a prison sentence for the commission of a new felony while a defendant is on felony probation, even if the sentencing guidelines indicate that the new felony falls within the presumptive probation range:



"When a new felony is committed . . . while the offender is on probation . . . for a felony, a new sentence shall be imposed consecutively pursuant to the provisions of K.S.A. 2017 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."



As the plain language of this statute states, the imposition of a prison sentence for a presumed nonprison crime committed while on felony probation is not a departure sentence. K.S.A. 2017 Supp. 21-6604(f)(1). If a sentence does not constitute a departure, it is a presumptive sentence. State v. Dean, 273 Kan. 929, 935-36, 46 P.3d 1130 (2002);

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State v. Lindsey, No. 108,384, 2014 WL 643097, at *1 (Kan. App. 2014) (unpublished opinion).



Such is the case here. Shobe was on felony probation when he was convicted of and then sentenced for the commission of new felony offenses. Under K.S.A. 2017 Supp. 21-6604(f)(1), the trial court acted within its discretion in sentencing Shobe to prison. The imposition of this sentence did not constitute a departure and was, therefore, a presumptive sentence. We lack jurisdiction to review any sentence within the presumptive sentencing range for the offense. See K.S.A. 2017 Supp. 21-6820(c)(1); State v. Huerta, 291 Kan. 831, 837, 247 P.3d 1043 (2011).

Appeal dismissed.