State v. Foster, 122743

Charles Foster pled no contest to possession with intent to distribute cocaine (drug severity level 4, nonperson felony) and had a criminal history score of F, placing him in a KSGA "border box."
Sentences in a border box are presumptively prison; an optional nonprison sentence is permitted only if the court makes statutorily prescribed findings (treatment more effective, availability/admission within reasonable time, or nonprison sanction promotes community safety).
Foster moved for a dispositional or durational departure to probation, citing his age (~70), role as caregiver, ongoing outpatient treatment, nonviolent offense, reduced harm, and alleged coercion by a creditor who had assaulted him.
The State contested the coercion claim and argued the listed factors did not constitute substantial and compelling reasons to depart; arrest evidence suggested active, willing distribution.
At sentencing the district court expressly applied the border-box (lesser) standard, reviewed the statutory factors on the record, denied Foster's departure motion, and imposed the presumptive sentence of 24 months' imprisonment plus 24 months postrelease supervision.
Foster appealed, arguing the court used the higher "substantial and compelling" standard (rendering the sentence illegal and reviewable). The appellate court considered whether it had jurisdiction to hear the appeal.

Issue	Plaintiff's Argument (Foster)	Defendant's Argument (State)	Held
Whether appellate courts have jurisdiction to review a presumptive border-box sentence	Foster argued sentence was illegal (wrong legal standard applied), so appealable despite presumptive status	State argued border-box presumptive prison sentences are not appealable and Foster received a presumptive sentence	Court held it lacked jurisdiction: border-box presumptive prison sentence is not appealable
Whether the district court applied the improper (substantial-and-compelling) legal standard, making the sentence illegal	Foster argued the district court applied the higher substantial-and-compelling dispositional-departure standard instead of the border-box standard	State pointed to the record showing the court recognized and applied the border-box standard and made the required statutory findings on the record	Court held the record shows the district court applied the correct border-box standard and addressed statutory factors; sentence not illegal and remains nonreviewable

State v. Smith, 304 Kan. 916, 377 P.3d 414 (2016) (appellate jurisdiction is statutory)
State v. Hambright, 310 Kan. 408, 447 P.3d 972 (2019) (defining when a sentence is "illegal" under statutory correction authority)
State v. Whitlock, 36 Kan. App. 2d 556, 142 P.3d 334 (2006) (border-box sentences are presumptive prison and not appealable)