                          NOT DESIGNATED FOR PUBLICATION

                                             No. 121,198


             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         STATE OF KANSAS,
                                             Appellee,

                                                   v.

                                     RONALD J. MCCOMBER,
                                          Appellant.


                                  MEMORANDUM OPINION


       Appeal from Chase District Court; MERLIN G. WHEELER, judge. Opinion filed May 1, 2020.
Appeal dismissed.


       Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.


       Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.


Before HILL, P.J., BUSER and BRUNS, JJ.


       PER CURIAM: Ronald McComber appeals the denial of his motion for a
dispositional departure sentence. He argues the district court erred by considering his
criminal history instead of just the facts of this case when it decided his reasons for a
departure were not compelling. He maintains that his reasons to depart are especially
compelling because of his lack of any recent criminal involvement. We dismiss his
appeal because we have no jurisdiction to grant relief.




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       McComber pled no contest to failure to register as a drug offender, a severity level
6 nonperson felony. He was required to register—confirm that his information was up to
date—four times a year, but he failed to do so in March 2018. His criminal history score
was E. The presumptive sentence was between 28 and 32 months in prison. McComber
asked for a dispositional departure to probation. In the motion, he argued there were four
"substantial and compelling" reasons to depart:
       • His crime was passive because he simply forgot to register;
       • he accepted responsibility by pleading no contest;
       • his failure to register resulted in no harm; and
       • he is not a danger to public safety.


       At the sentencing hearing, McComber downplayed his criminal history by stating
that his last conviction was in 2014, and he had no convictions for any person felonies.
The sentencing court denied the departure motion and sentenced McComber to 30
months in prison.


       The court explained it was looking at a bigger picture than his criminal history
when it denied his motion:


               "The Court would not argue in any respect that any of the listed reasons cited by
       counsel, standing either jointly or individually, could serve as either substantial or
       compelling reasons to support departure in an appropriate case. However, they have to be
       viewed in the context of this case. And in the context of this case we are not dealing with
       an individual who has simply barely made the requirements of having a criminal history
       level of E, we're dealing with an individual who has been convicted six times previously
       for non-person felonies and 15 prior non-person misdemeanor convictions, which means
       that he has been afforded numerous opportunities to have changed his behavior and to
       have observed the rules of conduct expected by the State of Kansas.




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                "The Court also has to find that these reasons are substantial and compelling and
       those are two entirely separate and distinct matters. So, while I'm even—I'm willing to
       concede the possibility that these factors should be substantial, in light of the context of
       this case I do not find that they are compelling in any respect. It is, therefore, my decision
       that his motion for departure is denied and he will be ordered remanded to the custody of
       the Secretary to serve the balance of the sentence."


The question of our jurisdiction arises.


       Under the Kansas Sentencing Guidelines Act, appellate courts lack jurisdiction to
consider challenges to the denial of motions for departure sentences because the courts
lack jurisdiction to consider appeals from presumptive sentences. State v. Grebe, 46 Kan.
App. 2d 741, 745, 264 P.3d 511 (2011). An appellate court shall not review a sentence
for a felony conviction that is within the presumptive Guidelines sentence for the crime.
K.S.A. 2019 Supp. 21-6820(c); State v. Sprung, 294 Kan. 300, 317, 277 P.3d 1100
(2012).


       But if


       "a district court misinterprets its own statutory authority and explicitly refuses to consider
       a defendant's request for a discretionary, nonpresumptive sentence that the district court
       has statutory authority to consider, the appellate court may take up the limited question of
       whether the district court properly interpreted the sentencing statute." State v. Warren,
       297 Kan. 881, Syl. ¶ 1, 304 P.3d 1288 (2013).


In Warren, the district court had ruled that it had no power to reduce Warren's sentence.
But under the applicable statute, it did have such power. 297 Kan. at 886-87.


       With these legal restrictions in mind, McComber argues that while generally
appellate courts cannot review presumptive sentences, we can review whether the district


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court erred as a matter of law by using an incorrect definition of "compelling" when
considering his departure motion. He argues that the court considered the wrong
"context." It could only consider the facts of this case and not his criminal history.
Ironically, he then argues that his criminal history, or lack of recent convictions, was a
reason the court should have granted his departure motion.


       The State argues that McComber's invocation of an exception to the jurisdictional
rule is equivalent to erasing the rule entirely.


       Whether jurisdiction exists is a question of law over which this court's scope of
review is unlimited. The right to appeal is entirely statutory and is not contained in the
United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate
courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner
prescribed by statutes. State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016).


       Here, the district court did not rule that it had no authority to impose a departure
sentence as the court did in Warren. The court recognized it could grant a departure if the
reasons were substantial and compelling.


       Departures are reserved for extraordinary cases. State v. Brown, 305 Kan. 674,
697, 387 P.3d 835 (2017). Under K.S.A. 2019 Supp. 21-6815(a), "the sentencing judge
shall impose the presumptive sentence provided by the sentencing guidelines unless the
judge finds substantial and compelling reasons to impose a departure sentence." The term
"substantial" means something real, not imagined; something with substance, not
ephemeral. "Compelling" means that the court is forced, by the facts of the case, to leave
the status quo or go what is beyond ordinary. State v. Reed, 302 Kan. 227, 250, 352 P.3d
530 (2015).




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       In discussing what is meant by "the facts of the case," our Supreme Court has
broadly instructed that the sentencing court is to consider what would be a proper
sentence for a particular defendant:


       "the facts of the case—including any egregious ones—are essential for a judge to
       consider in deciding if a departure is warranted based on substantial and compelling
       reasons. Simply stated, a judge does not sentence in a vacuum. The sentencing judge is to
       consider information that reasonably might bear on the proper sentence for a particular
       defendant, given the crime committed, including the manner or way in which an offender
       carried out the crime. This includes those 'circumstances inherent in the crime and the
       prescribed sentence.' Provided the sentence imposed is within the statutory limits, '[i]t is
       the sentencing judge alone who determines the appropriate sentence to be imposed or
       other disposition of the case by exercising his or her best judgment, common sense, and
       judicial discretion after considering all of the reports, the defendant's background, the
       facts of the case, and the public safety.' [Citations omitted.]" State v. Powell, 308 Kan.
       895, 914, 425 P.3d 309 (2018).


       The Supreme Court has also said that the court should also consider mitigation.
The sentencing court looks to the mitigating factors as a whole to determine whether
there are substantial and compelling reasons to depart from the presumptive sentence in
light of the offense, the defendant's criminal history, and the purposes of the guidelines.
State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 (2001).


       A defendant's criminal history cannot be given as a reason to grant a departure
because such criminal history is already considered in determining the presumptive grid
sentence. State v. Theurer, 50 Kan. App. 2d 1203, 1227, 337 P.3d 725 (2014). But
McComber does not point to any case holding that it was error for a court to discuss the
defendant's criminal history when denying a departure. Our Supreme Court has
acknowledged that courts do not sentence in a vacuum. The statute says when a departure
sentence is appropriate, the sentencing court may depart, not must depart. See K.S.A.
2019 Supp. 21-6818(a). Moreover, at his sentencing hearing, McComber brought up his
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criminal history, or lack thereof, as a reason why the court should depart. We are not
convinced the district court made an error of law.


       McComber further argues that his sentence is "arguably" illegal because the court
did not properly consider the departure factors.


       Whether a sentence is illegal within the meaning of K.S.A. 2019 Supp. 22-3504 is
a question of law over which the appellate court has unlimited review. State v. Lee, 304
Kan. 416, 417, 372 P.3d 415 (2016). A sentence is illegal when it:
           • Is imposed by a court without jurisdiction;
           • does not conform to the applicable statutory provisions, either in character
                or punishment; or
           • is ambiguous with respect to the time and manner in which it is to be
                served. K.S.A. 2019 Supp. 22-3504(c).


       McComber's sentence is not illegal. The district court imposed the middle number
in the grid box. His sentence conforms to the statutory requirements. We have no
jurisdiction.


       Even if we did review McComber's appeal, the district court did not incorrectly
define "compelling." The court correctly determined that the circumstances of the case
did not force it "to 'abandon the status quo'" and venture beyond or depart from the
ordinary sentence. See State v. Cato-Perry, 50 Kan. App. 2d 623, 629, 332 P.3d 191
(2014). The court made no reference to McComber's criminal history when it said the
factors suggested were not compelling. The court was simply not compelled.


       Appeal dismissed.




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