State v. Whitlock

142 P.3d 334, 36 Kan. App. 2d 556, 2006 Kan. App. LEXIS 917
CourtCourt of Appeals of Kansas
DecidedSeptember 15, 2006
DocketNo. 93,875
StatusPublished
Cited by6 cases

This text of 142 P.3d 334 (State v. Whitlock) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Whitlock, 142 P.3d 334, 36 Kan. App. 2d 556, 2006 Kan. App. LEXIS 917 (kanctapp 2006).

Opinion

Green, J.:

Pete Whitlock appeals from his prison sentence after being convicted of indecent liberties with a child in violation of K.S.A. 21-3503 and indecent solicitation of a child in violation of [557]*557K.S.A. 2004 Supp. 21-3510(a)(l). Whitlock’s sole argument on appeal is that the trial court erred in not granting his request to be sentenced to an optional nonprison sentence. Nevertheless, this court lacks jurisdiction to consider Whitlock’s appeal under K.S.A. 2005 Supp. 21-4704(f). Moreover, because Whitlock’s sentence was within the presumptive sentence for the crime, this court lacks jurisdiction under K.S.A. 21-4721(c). Accordingly, we dismiss.

Whitlock pled guilty to one count of indecent liberties with a child, a severity level 5 person felony in violation of K.S.A. 21-3503, and one count of indecent solicitation of a child, a severity level 7 person felony in violation of K.S.A. 2004 Supp. 21-3510(a)(l). The factual basis for the plea was that Whitlock had picked up K.D.F., a 15-year-old girl, in the parking lot of an Oseo Drug Store in Hutchinson and later engaged in sexual activity with her. Whitlock was 73 years old when these events occurred. In exchange for Whitlock’s guilty plea, the State dismissed the remaining charges of criminal sodomy and two counts of aggravated indecent liberties with a child, each a severity level 3 person felony. Moreover, the parties agreed that the State would recommend the imposition of consecutive sentences for Whitlock’s convictions.

Because Whitlock had no criminal history, his criminal history classification was category I. For his conviction of indecent liberties with a child, Whitlock fell into sentencing grid box 5-1, which was one of the border boxes on the nondrug sentencing grid of the Kansas Sentencing Guidelines Act (KSGA). See K.S.A. 2005 Supp. 21-4704(a). K.S.A. 2005 Supp. 21-4704(f) gives the trial court discretion, upon making certain findings on the record, to impose an optional nonprison sentence for an offense classified in grid block 5-1.

At sentencing, Whitlock argued that he met the criteria for a nonprison sentence under K.S.A. 2005 Supp. 21-4704(f) and asked the trial court to sentence him to probation for 36 months and to require him to complete a sex-offender treatment program. Whit-lock presented letters and testimonials from friends and family members. In addition, Whitlock presented a psychological evaluation report in which the psychologist stated that Whitlock would be a good candidate for community placement and probation. The [558]*558victim and the victim’s mother also gave statements at the sentencing hearing, and both indicated that Whitlock should be imprisoned.

At the conclusion of the hearing, the trial court declined to impose a nonprison sentence, finding that Whitlock had not satisfied the criteria under K.S.A. 2005 Supp. 21-4704(f). The trial court found that Whitlock posed a threat to the public safety and to other young girls. The trial court imposed consecutive sentences of 32 months in prison for Whitlock’s conviction of indecent liberties with a child and 12 months in prison for his conviction of indecent solicitation of a child.

On appeal, Whidock argues that the trial court erred in not imposing an optional nonprison sentence available in a border box situation. On the other hand, the State argues that, based upon K.S.A. 2005 Supp. 21-4704(f), this court does not have jurisdiction to consider this appeal. Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. State v. Hodgden, 29 Kan. App. 2d 36, 38, 25 P.3d 138, rev. denied 271 Kan. 1040 (2001).

Moreover, the parties’ arguments require interpretation of the KSGA. “Interpretation of the KSGA is a question of law and the appellate court’s scope of review is unlimited. [Citations omitted.]” State v. Smith, 33 Kan. App. 2d 554, 555, 105 P.3d 738, rev. denied 279 Kan. 1010 (2005).

K.S.A. 2005 Supp. 21-4704(f), the provision which gives the trial court discretion to impose a nonprison sanction when an offense is classified in grid blocks 5-H, 5-1, or 6-G, states in relevant part: “If an offense is classified in grid blocks 5-H, 5-1 or 6-G, the court may impose an optional nonprison sentence upon making file following findings on the record:

“(1) An appropriate treatment program exists which is likely to be more effective than the presumptive prison term in reducing the risk of offender recidivism; and
“(2) the recommended treatment program is available and the offender can be admitted to such program within a reasonable period of time; or
“(3) the nonprison sanction will serve community safety interests by promoting offender reformation.
“Any decision made by the court regarding the imposition of an optional non-prison sentence if the offense is classified in grid blocks 5-H, 5-1 or 6-G shall not be considered a departure and shall not be subject to appeal.”

[559]*559K.S.A. 2005 Supp. 21-4704(f) makes clear that any decision by the trial court concerning die imposition of an optional nonprison sentence for an offense classified in grid block 5-1 “shall not be considered a departure and shall not be subject to appeal.” (Emphasis added.) In this case, the trial court considered the factors for the imposition of an optional nonprison sentence for an offense which was classified in grid block 5-1 and decided not to impose a nonprison sentence. Instead, the trial court chose to sentence Whitlock to prison. Such decision is not appealable under the plain language of K.S.A. 2005 Supp. 21-4704(f).

Moreover, this court lacks jurisdiction to review Whitlock’s sentence under K.S.A. 21-4721(c).

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Cite This Page — Counsel Stack

Bluebook (online)
142 P.3d 334, 36 Kan. App. 2d 556, 2006 Kan. App. LEXIS 917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-whitlock-kanctapp-2006.