CAN YOU APPEAL YOUR SENTENCE IF IT FALLS WITHIN THE PRESUMPTIVE SENTENCING RANGE?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

State v. Shaw, Nos. 113,127 113,128 2016 WL 687656 (Kan. Ct. App. Feb. 19, 2016).

This case addresses the following issue:

If a sentence falls within the presumptive grid-block for a crime, may the defendant appeal the sentence?

The issue in this case includes whether the district court erred by imposing an increased sentence based off of prior convictions not proved to a jury beyond a reasonable doubt. Id. at 1. K.S.A. 2015 Supp. 21-6820(c)(1) provides that an individual will not be allowed to appeal a sentence imposed if it falls within the presumptive sentence for the grid block. Id. at 16.

In this case, the appellant was charged with theft as a severity level 9 nonperson felony due to two or more previous convictions of theft. Id. at 1-2. The appellant took a plea deal with the State where the State agreed it would ask for the mitigated sentence in the presumptive grid block and would ask for a dispositional departure to probation because the original presumptive sentence would provide for prison. Id. at 2. Ultimately, the judge imposed probation with 60 days of shock time subject to work release on an underlying 15-month sentence due to the lengthy criminal history of the defendant which included several felony theft convictions, aggravated escape, burglary, making a false writing, and deprivation of property. Id. at 3-*4. The appellant then began work release which the appellant left and was subsequently charged with aggravated escape from custody. Id. at 4-5. The court then revoked probation for the previous sentence and imposed the 15 month prison sentence, and additionally sentenced the appellate to a 9 month prison sentence to be served consecutive for the aggravated escape charge. Id. at 8. The appellate court analyzed the argument by the appellant that the court increased his sentence based off of his criminal history; and concluded that the sentence was still within the aggravated grid block had the trial court refused to rely on the appellant’s prior criminal history. Id. at 16. Therefore, the appellate court concluded, that under K.S.A. 2015 Supp. 21-6820(c)(1), the appellant was not allowed to appeal the sentence when the sentence imposed fell under the presumptive sentence grid block. Id. at 16-17.