                          NOT DESIGNATED FOR PUBLICATION

                                              No. 120,555

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          STATE OF KANSAS
                                             Appellee,

                                                    v.

                                     REBECCA ANN STEWART,
                                           Appellant.


                                   MEMORANDUM OPINION

       Appeal from Bourbon District Court; MARK ALAN WARD, judge. Opinion filed April 3, 2020.
Affirmed.


       Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.


       Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.


Before BRUNS, P.J., MALONE and GARDNER, JJ.


       PER CURIAM: Rebecca Ann Stewart appeals her prison sentence after pleading
guilty to possession of methamphetamine. Stewart's criminal history and crime severity
level placed her in a border box, meaning the district court could impose an optional
nonprison sanction by finding that an appropriate treatment program exists, which is
likely to be more effective than the presumptive prison term in reducing the risk of
offender recidivism, the recommended treatment program is available, and the offender
can be admitted to such program within a reasonable period of time. Stewart also
committed her current offense while on felony probation in another case, meaning that a
special rule applied that allowed the district court to impose a prison sanction even if

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there was a presumption for probation. As part of the plea agreement, the parties
stipulated that Stewart met the criteria for the border box findings and the State agreed to
"waive" the special rule that would allow the district court to imprison Stewart because
she committed her current offense while on felony probation.


       At sentencing the district court declined to make the stipulated border box findings
because the parties had offered no evidence to support the findings. The district court also
applied the special rule that called for a prison sentence because Stewart committed the
current offense while on felony probation in another case. As a result, the district court
sentenced Stewart to 23 months' imprisonment and denied her request for probation.


       On appeal, Steward claims the district court abused its discretion by denying her
request for probation. More specifically, she claims the district court erred by requiring
evidence at the sentencing hearing to support the border box findings after the parties had
stipulated that she met the criteria for the findings. For the reasons stated in this opinion,
even if we assume that we have jurisdiction to review Stewart's presumptive sentence, we
conclude that Stewart has failed to show that the district court abused its discretion when
it sentenced her to prison and denied her request for probation.


                                            FACTS

       On January 18, 2018, the State charged Stewart with unlawful possession of
methamphetamine, unlawful possession of drug paraphernalia, driving while suspended,
no proof of insurance, and a registration violation. Stewart committed these crimes while
she was on felony probation in a case from Johnson County and, in fact, the probation
was revoked and Stewart was ordered to serve her prison sentence in that case.


       On October 1, 2018, Stewart pled guilty to possession of methamphetamine in
exchange for dismissal of the remaining charges. The written plea agreement stated that

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"the parties have agreed to stipulate that [Stewart] meet[s] border box criteria to receive
an opportunity for probation after [she is] released from the Department of Corrections in
[her] Johnson County case." The plea agreement also called for the State to "waive
application of any special sentencing rule." At the plea hearing, the district court made it
clear to Stewart that the court did not have to follow the plea agreement and Stewart
stated she understood the plea recommendations were not binding on the court.


       At the sentencing hearing on December 3, 2018, both parties asked the district
court to place Stewart on probation after she completed her sentence in the Johnson
County case. More specifically, the prosecutor told the district court that "[m]y reading of
the plea agreement says that I'm supposed to waive application of the special rule, and
that I will stipulate to the proposed criteria for treatment." But after hearing the
arguments, the district court denied Stewart's request for probation and stated:


               "There has been no evidence presented that an appropriate treatment program
       exists which is likely to be more effective than the presumptive prison term and reducing
       the risk of offender recidivism and that the program is available, nor any evidence that
       the non-prison sanction would serve community safety interests by promoting offender
       reformation." (Emphases added.)


       The district court imposed a presumptive sentence of 23 months' imprisonment to
run consecutive to the sentence in the Johnson County case. After the district court
imposed the sentence, Stewart's counsel stated that he would file a motion to reconsider
to give Stewart a chance to present evidence to support the border box findings:


               "I felt like since [I] had a stipulation from the State that a treatment program was
       available and . . . that the defendant would be amenable to that treatment program . . . I
       didn't feel like I would need to present that today but I can present that, Judge, and I
       would ask the Court to consider allowing me to do so at a subsequent date."




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       The district court told counsel that "you can file any motion you want." The
district court then referred to the special rule that allowed it to impose a prison sentence
because Stewart committed her offense while on probation in the Johnson County case.
The district court told Stewart that the special rule "also applies that says I'm going to
send you to prison." The district court observed that Stewart had other pending criminal
cases in at least two counties and found that "it just does not appear to me that this is a
case for probation." The district court had also noted at the hearing that Stewart's LSIR
assessment score placed her in a "maximum risk." The journal entry indicated that the
district court sentenced Stewart to 23 months' imprisonment consecutive to the Johnson
County sentence and stated that the "Special Rule Applies." Stewart timely appealed.


                                          ANALYSIS

       On appeal, Stewart claims the district court abused its discretion by denying her
request for probation. More specifically, she claims the district court erred by requiring
evidence at the sentencing hearing to support the border box findings after the parties had
stipulated that she met the criteria for the findings. She asserts that we have jurisdiction to
address this claimed error even though she received a presumptive sentence.


       The State argues that this court lacks jurisdiction to review Stewart's claim
because she received a presumptive sentence. Alternatively, the State argues that the
district court did not abuse its discretion when it sentenced Stewart to prison and denied
her request for probation.


       Whether jurisdiction exists is a question of law over which an appellate court's
scope of review is unlimited. State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016). To
the extent that resolution of this appeal requires statutory interpretation, our review is also
unlimited. State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019). To the extent
Stewart claims the district court abused its discretion by denying her request for

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probation, a judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful,
or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact.
State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). The party asserting the
district court abused its discretion bears the burden of showing such abuse of discretion.
State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).


       Stewart's criminal history and crime of conviction placed her in the 5-D border
box on the drug sentencing grid. When the crime falls within a border box, the district
court "may impose an optional nonprison sentence" if it makes findings that:


               "(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." K.S.A. 2019 Supp. 21-6804(q).


See K.S.A. 2019 Supp. 21-6805(d).


       Here, the district court declined to make such findings because no evidence had
been submitted to support them and sentenced Stewart to the presumptive prison
sentence. Stewart argues that the district court abused its discretion by imposing the
presumptive prison sentence instead of probation.


       Generally, this court lacks jurisdiction to review a sentence for a felony conviction
if it is within the presumptive sentence for the crime. K.S.A. 2019 Supp. 21-6820(c). A
conviction that falls in a border box is presumptive imprisonment. See K.S.A. 2019 Supp.
21-6804(q); State v. Whitlock, 36 Kan. App. 2d 556, 559, 142 P.3d 334 (2006). Further,
K.S.A. 2019 Supp. 21-6804(q), on border box sentences, states: "Any decision made by


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the court regarding the imposition of an optional nonprison sentence shall not be
considered a departure and shall not be subject to appeal."


       But even when the district court imposes a presumptive sentence, an appellate
court has jurisdiction to review a claim "that the district court wrongly interpreted its
statutory sentencing authority." State v. Warren, 297 Kan. 881, 885, 304 P.3d 1288
(2013). In Warren, the court found that it had jurisdiction to review the defendant's
appeal of a presumptive sentence for illegally possessing contraband in a prison because
the record reflected that the district court did not understand its authority to grant a
departure sentence when the defendant possessed a small quantity of contraband. 297
Kan. at 885-86. And in State v. Cisneros, 42 Kan. App. 2d 376, 379, 212 P.3d 246
(2009), this court held that it had jurisdiction to review the defendant's presumptive
sentence when the record reflected that the district court did not understand its authority
to reduce the defendant's sentence upon revoking his probation.


       Stewart argues that the district court misinterpreted its authority when it refused to
consider the parties' stipulation that she met the criteria for the border box findings. But
Stewart's claim is not exactly like the claims in Warren and Cisneros. Here, the record
reflects that the district court was aware it could place Stewart on probation but found
there was no reason to exercise its discretion to do so. Instead, the district court imposed
the presumptive prison sentence and denied Stewart's request for probation. Under these
circumstances, we question whether we have appellate jurisdiction to review Stewart's
presumptive sentence. But assuming without deciding that we have jurisdiction to review
Stewart's presumptive sentence, we will proceed to address the merits of her claim that
the district court abused its discretion by denying her request for probation.


       Generally, parties are bound by their stipulations and as such, a stipulation relieves
a party of the need to present further evidence. See State v. Bogguess, 293 Kan. 743, 745,
268 P.3d 481 (2012); State v. Downey, 27 Kan. App. 2d 350, 359, 2 P.3d 191 (2000). As
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part of the plea agreement, the State and Stewart stipulated that she met the criteria for
border box findings. This stipulation amounted to an agreement between the parties that
certain facts were present in the case, i.e., that an appropriate treatment program existed
which was more likely to be effective than the presumptive prison term and that Stewart
could be admitted to the program within a reasonable period of time. Despite this factual
stipulation, the district court declined to make border box findings because no evidence
had been presented at the sentencing hearing to support the findings.


       We conclude the district court erred by refusing to accept the parties' factual
stipulation that Stewart met the criteria for border box findings. This ruling caught
Stewart's counsel off guard, and he informed the district court that the only reason he did
not present evidence to support the border box findings was because the parties had
stipulated to the evidence. The parties' stipulation that Stewart met the criteria for border
box findings relieved her from presenting evidence to support the findings, and the
district court erred by requiring Stewart to present evidence at the hearing.


       But K.S.A. 2019 Supp. 21-6804(q) states that a district court may impose an
optional nonprison sentence upon making the statutory border box findings. So even if
the district court had accepted the parties' stipulation that Stewart met the criteria for
border box findings, the district court did not have to grant Stewart's request for
probation. Here the district court also denied Stewart's request for probation for other
reasons including the fact that she had committed her current offense while on felony
probation in her Johnson County case. K.S.A. 2019 Supp. 21-6604(f)(1) provides that
when a new felony is committed while the offender is on probation, the court may
sentence the offender to imprisonment even when the new crime presumes a nonprison
sanction. The district court applied this special rule in sentencing Stewart to prison.


       Stewart argues that the State "waived applicability of the special rule" as part of
the plea agreement. But in Kansas both parties to a plea agreement assume the risk that
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the sentencing court will not follow the agreement because sentencing recommendations
made under a plea bargain are not binding on the court. See State v. Boley, 279 Kan. 989,
996, 113 P.3d 248 (2005). When the State "waived" application of the special sentencing
rule, this was merely a recommendation by the State for the district court to place Stewart
on probation despite the fact that she committed her new offense while on felony
probation. But the district court was not bound by the recommendation for Stewart to
receive probation, a point the district court made clear to Stewart at the plea hearing.


       In sum, assuming this court has jurisdiction to review Stewart's presumptive
sentence, we find that the district court erred by refusing to accept the parties' factual
stipulation that Stewart met the criteria for border box findings. But this error does not
mean that Stewart must be resentenced. Stewart's criminal history and crime of
conviction placed her in the 5-D border box on the drug sentencing grid. A conviction
that falls in a border box is presumptive imprisonment. See K.S.A. 2019 Supp. 21-
6804(q); Whitlock, 36 Kan. App. 2d at 559. Even if the district court had accepted the
parties' stipulation that Stewart met the criteria for border box findings, the district court
did not have to grant Stewart's request for probation.


       Here, the record is clear that the district court denied Stewart's request for
probation because of her long criminal history, the fact that she had other pending
criminal cases in at least two counties, the fact that Stewart committed her current offense
while on felony probation in the Johnson County case, and the fact that her probation in
that case had been revoked. The district court also noted that Stewart's LSIR assessment
score placed her in a "maximum risk." Based on all the information in the record, the
district judge found that "it just does not appear to me that this is a case for probation."
We conclude Stewart has failed to show that the district court abused its discretion by
imposing the presumptive sentence and denying her request for probation.


       Affirmed.
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