State v. HuertaState v. Huerta
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This case arises on petition for review from the Court of Appeals’ dismissal of defendant Eric Huerta’s sentencing appeal for lack of jurisdiction under the authority of
Huerta was sentenced to consecutive presumptive sentences totaling 372 months’ imprisonment after his guilty pleas in two multiple-felony cases. He argued in his brief to the Court of Appeals that the State violated due process by presenting false information during his sentencing hearing, that his sentence was disproportionate to his co-defendant’s sentence, and that the State impermissibly urged the sentencing judge to rely on his post-arrest si lence. Given the dismissal of Huerta’s appeal, the Court of Appeals did not reach the merits of any of Huerta’s arguments. The Court of Appeals also denied Huerta’s motion to reinstate his appeal.
In his petition for review to this court, Huerta argued that the dismissal under
Constitutional questions such as those posed by Huerta here raise issues of law, and this court’s review is unlimited.
Johnson,
286 Kan. at 842 (construction of Kansas Sentencing Guidelines Act [KSGA], determination of constitutionality of provisions questions of law). Moreover, this case requires us to interpret
“When courts are called upon to interpret statutes, the fundamental rule governing our interpretation is that ‘the intent of the legislature governs if that intent can be ascertained. The legslature is presumed to have expressed its intent through the language of the statutory scheme it enacted.’ State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001). For this reason, when the language of a statute is plain and unambiguous, courts ‘need not resort to statutory construction.’ In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007). Instead, ‘[w]hen the language is plain and unambiguous, an appellate court is bound to implement the expressed intent.’ State v. Manbeck, 277 Kan. 224, Syl. ¶ 3, 83 P.3d 190 (2004).” Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, 754-55, 189 P.3d 494 (2008).
This court has further stated:
‘Where a statute’s language is subject to multiple interpretations, however, a reviewing court ‘may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. [Citation omitted.]’ Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000). Generally, courts should construe statutes to avoid unreasonable results and should presume that the legslature does not intend to enact useless or meaningless legislation. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006). We ascertain the legslature’s intent behind a particular statutory provision ‘from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. [Citation omitted.]’ In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989); see also State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003). Thus, in cases that require statutory construction, ‘courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia.’ Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 (1975).” Bremby, 286 Kan. at 754-55.
The Statute at Issue
Equal Protection
Huerta contends that
First, Huerta argues, under
Second, Huerta argues that this court has reviewed a claim that consecutive presumptive misdemeanor sentences were disproportionate and violated the Eighth Amendment. He cites State v. Snow, 282 Kan. 323, 346-47, 144 P.3d 729 (2006), in which we applied an abuse of discretion standard when the appellant complained not that a statute was unconstitutional, but that his particular sentence was unconstitutional. Huerta asserts that there is no rational basis to prohibit review of a constitutional challenge to consecutive presumptive felony sentences.
Our first step in equal protection analysis is determination of whether the legislative classification at issue results in arguably indistinguishable classes of individuals being treated differently. Only if there is a differential treatment of similarly situated individuals is the Equal Protection Clause implicated. State v. Salas, 289 Kan. 245, 248, 210 P.3d 635 (2009) (citing Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 [1985] [guiding principle of equal protection analysis is that similarly situated individuals should be treated alike]; Hodges v. Johnson, 288 Kan. 56, 72, 199 P.3d 1251 [2009]; State v. Denney, 278 Kan. 643, 652, 101 P.3d 1257 [2004]). This court has recognized that it is the burden of the party raising an equal protection complaint to demonstrate that he or she is similarly situated to others treated differently. Salas, 289 Kan. at 249.
Unless a party meets his or her “similarly situated” burden, we do not move to our second step in equal protection analysis,
i.e.,
determination of the nature of the rights affected by the classification and thus the level of scrutiny applied: strict scrutiny, intermediate scrutiny, or rational basis.
Salas,
289 Kan. at 248-49. We note, however, that this court has applied the rational basis test to an Equal Protection Clause challenge to a criminal statute.
State v. Denney,
278 Kan. 643, 651-52, 101 P.3d 1257 (2004). If a litigant has not demonstrated himself or herself to be similarly situated to those in a favored group, we also do not move to the last step of equal protection analysis,
i.e.,
application of the appropriate level of scrutiny to determine whether a
A preliminary note is necessary before we turn to whether Huerta is similarly situated to defendants permitted under
Defendants such as Huerta used to be permitted to appeal on the same grounds as those subject to departure sentences. A 1995 statutory amendment altered the language of
There is no pertinent legislative history explaining the reasoning behind the 1995 amendment of
At oral argument, Huerta contended that, had he merely moved unsuccessfully for downward departure, then an appellate court could have reviewed his sentence under
We hold that he has not done so.
The process for arriving at a departure is completely different from that for arriving at a presumptive sentence. In imposing a departure sentence, the sentencing court must state on the record at the time of sentencing the substantial and compelling reasons for the departure.
On the other hand, when handing down a presumptive sentence, the discretion of the sentencing judge is narrowly circumscribed.
We acknowledge the emotional appeal of Huerta’s hypothetical concerning an overtly racist judge imposing the top number in a grid box for no reason other than his or her prejudice against a minority defendant. But emotional appeal cannot appellate jurisdiction make. And, as we have held before, the legislature generally can delineate the boundaries of appellate jurisdiction. Gleason v. Samaritan Home, 260 Kan. 970, Syl. ¶ 5, 926 P.2d 1349 (1996). Here, it appears to have made a deliberate choice in 1995 to eliminate appeals of presumptive sentences, even if they result from partiality, prejudice, oppression, or corrupt motive. Given the protections from sentencing judge discretion run amok inherent in the KSGA’s grid ranges, that choice does not cross a constitutional line.
Because we do not find that Huerta is similarly situated to those defendants who receive departure sentences, we do not reach the remaining two steps of equal protection analysis on his first argument.
Huerta’s second equal protection argument depends upon his being similarly situated to the defendant in Snow, who was given, inter alia, consecutive presumptive sentences for multiple misdemeanors and whose disparate sentencing appeal was considered on its merits.
This second equal protection argument also fails.
In
Snow,
the defendant was convicted of several felonies and misdemeanor offenses, and the sentencing court ordered his sentences for each offense to run consecutively to one another. Because of
This court recognized that the Snow defendant was not arguing that the sentencing statutory scheme was unconstitutional; rather, he was arguing that his particular sentence was unconstitutional. We relied on an abuse of discretion standard, 282 Kan. at 347, and held that the misdemeanor sentences were not grossly disproportionate under the Eighth Amendment. We declined to analyze his challenge to his misdemeanor sentences any further. Snow, 282 Kan. at 348 (citing Lockyer v. Andrade, 538 U.S. 63, 73, 123 S. Ct. 1166, 155 L. Ed. 2d 144 [2003]; Ewing v. California, 538 U.S. 11, 23-24, 123 S. Ct. 1179, 155 L. Ed. 2d 108 [2003]).
Snow
cannot help Huerta. The defendant in
Snow
had been sentenced for multiple felonies and multiple misdemeanors, and it was the combination of felony sentences and misdemeanor sentences that triggered appellate review. In addition, application of
Due Process
In his petition for review to this court, Huerta devoted only a couple of sentences to his due process argument, claiming that the Court of Appeals’ dismissal of his appeal under
Johnson and Dillon
Huerta has also argued that the Court of Appeals had jurisdiction to decide the merits of this appeal because he raised constitutional claims. He contends that, under the recent Court of Appeals decision in State v. Dillon, 44 Kan. App. 2d 1138, 244 P.3d 680, (2010), and our decision in State v. Johnson, 286 Kan. 824, 190 P.3d 209 (2008), a sentence that violated the constitution does not qualify as “presumptive” and therefore an appellate court has jurisdiction to hear the merits of a defendant’s appeal.
In
Dillon,
the defendant argued that the district judge failed to consider the proportionality of his individual sentence. The Court of Appeals stated that, in determining jurisdiction, it was faced with three questions: (1) Did the district judge consider the argument defendant made in his departure motion? (2) If not, did the district judge’s failure to consider that argument deny defendant due process? and (3) If the answer to the first two questions was yes, did the district judge’s violation of defendant’s due process rights at sentencing provide an exception to the general rule that this court has no jurisdiction to consider the appeal of a presumptive sentence? 44 Kan. App. 2d at 1140. The Court of Appeals concluded that the district judge failed to consider defendant’s argument regarding individual proportionality, that the failure denied defendant due process, and that this violation of due process provided an exception to
Dillon
substantially overread our decision in
Johnson. Johnson
was a challenge to the statutory scheme for sentencing, arguing that the discretion granted a sentencing judge to assign the upper grid box term without requiring additional fact-finding by a jury violated
Apprendi, v. New Jersey,
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Johnson,
286 Kan. at 840. In other words, the defendant in
Johnson
mounted a facial challenge to the design of the KSGA; his argument was not limited to his case alone.
Johnson,
286 Kan. at 842. We concluded that the sentencing scheme did not violate
Apprendi;
and, because Johnson’s individual sentence was presumptive, we did nothing further, concluding that we had no jurisdiction under
We have conducted the same type of analysis of the overall statutory scheme for sentencing and come to similar conclusions in cases other than Johnson. See State v. Bramlett, 273 Kan. 67, 67-68, 41 P.3d 796 (2002) (imposition of consecutive sentences does not violate Apprendi; court without jurisdiction to review presumptive sentences); State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002) (use of criminal history score to impose presumptive sentence does not violate Apprendi; court without jurisdiction to review presumptive sentences). In contrast, we do not review cases such as Huerta’s on direct appeal, when a defendant merely argues that his or her individual presumptive sentence has a constitutionally based infirmity. See State v. Clemons, 273 Kan. 328, 343-44, 45 P.3d 384 (2002) (court without jurisdiction to review presumptive sentence, when defendant argued sentence constituted cruel, unusual punishment).
Dillon
also relied on a prior Court of Appeals decision,
State v. Cisneros,
42 Kan. App. 2d 376, 212 P.3d 246 (2009), which it read to grant appellate jurisdiction to review a presumptive sentence when the district judge had misunderstood the limits of his or her discretion in sentencing after a revocation of probation.
Dillon,
44 Kan. App. 2d at 1145. In
Cisneros,
the defendant
We also observe that the Dillon panel looked to the merits of Dillon’s appeal to determine whether the Court of Appeals had jurisdiction rather than determining the existence of jurisdiction before considering the merits. If subject matter jurisdiction is in question, that issue needs to be resolved first. The merits come second. See, e.g., In re Adoption of Baby Girl P., 291 Kan. 424, 428-29,242 P.3d 1168 (2010) (jurisdiction a preliminary matter for court to consider); Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010) (jurisdiction a preliminary question for court to consider before addressing issues argued by parties).
Finally, do our holdings in this case leave a defendant who believes there has been constitutional error in arriving at his or her individual presumptive sentence but who does not challenge the facial constitutionality of the sentencing scheme with no remedy? No, not necessarily. It may be that constitutional error so infects the sentence that it qualifies as illegal under
Affirmed.