1

NOT DESIGNATED FOR PUBLICATION

Nos. 124,845

 124,846

 124,847

 124,848

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

BILLY HOYT,

Appellant.

MEMORANDUM OPINION

Appeal from Harvey District Court; TIMOTHY J. CHAMBERS, judge. Submitted without oral 

argument. Opinion filed November 17, 2023. Appeal dismissed.

Christopher S. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant.

Natalie Chalmers, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee.

Before ATCHESON, P.J., MALONE and PICKERING, JJ.

PER CURIAM: Billy Hoyt appeals his sentences in four cases consolidated on 

appeal. Hoyt claims the district court abused its discretion by not following the plea 

agreement that called for him to receive a durational departure in each case. He also 

claims his due process rights were violated because there is no transcript of the joint

sentencing hearing. But because Hoyt received a presumptive sentence within the 

applicable grid box in each case, we lack jurisdiction to review his sentences on appeal.
2

FACTS

Between October 2019 and December 2020, the State charged Hoyt with crimes in 

four cases. In 19CR711, the State charged Hoyt with two counts of aggravated sexual 

battery. In 20CR38, the State charged Hoyt with stalking and two counts of violation of a 

stalking order. In 20CR189, the State charged Hoyt with aggravated intimidation of a 

witness, two counts of aggravated domestic battery, aggravated assault, aggravated 

endangering of a child, and violation of a stalking order. In 20CR551, the State charged 

Hoyt with one count of distribution of methamphetamine. Because Hoyt was serving a 

term of probation in four prior cases when these crimes were committed, the State sought 

to revoke his probation in those cases as well.

The parties eventually entered into a global plea agreement to settle all the 

pending cases. Hoyt agreed to plead no contest to one count of aggravated sexual battery 

in 19CR711; one count of stalking in 20CR38; one count of aggravated intimidation of a 

witness in 20CR189; and one count of distribution of methamphetamine in 20CR551. He 

also agreed to violating the terms of his probation in the four prior cases. In exchange, the 

State would dismiss all remaining charges and agree not to file two additional cases. The 

parties agreed to recommend that Hoyt would serve 60 months' imprisonment in the four 

probation violation cases and 90 months' imprisonment in the four new cases—for a total 

sentence of 150 months' imprisonment.

At the plea hearing before Judge Joe Dickinson, the district court accepted Hoyt's 

no-contest pleas in the four new cases. The district court then addressed Hoyt's probation 

violation cases and, under the plea agreement, Hoyt admitted to the violations in the 

cases. The district court asked Hoyt if he wanted to wait until the sentencing for his four 

new cases or proceed directly to disposition on the probation violations. Hoyt responded 

that he wanted to go ahead and "dispose of them today." The district court followed the 
3

plea agreement, revoked Hoyt's probation in the four prior cases, and ordered Hoyt to 

serve a modified sentence of 60 months' imprisonment in the four prior cases.

Before the sentencing hearing in the new cases, Hoyt moved for a durational 

departure in each new case, urging the district court to follow the recommendation in the 

plea agreement for a total sentence of 90 months' imprisonment in the new cases, 

consecutive to the 60-month sentence for the probation violations. Hoyt's motions did not 

give any substantial and compelling reasons for the district court to depart from the 

sentencing guidelines.

By the sentencing hearing on November 8, 2021, Judge Dickinson had retired and 

Senior Judge Timothy J. Chambers presided over the hearing. At the hearing, the State 

joined in Hoyt's requests for a durational departure, but the district court declined to 

follow the parties' sentencing recommendations in the four new cases. Instead, the district 

court sentenced Hoyt to concurrently serve 120 months' imprisonment for aggravated 

sexual battery in 19CR711; 14 months' imprisonment for stalking in 20CR38; 39 months' 

imprisonment for aggravated intimidation of a witness in 20CR189; and 130 months' 

imprisonment for distribution of methamphetamine in 20CR551. These were all 

presumptive sentences under the Kansas sentencing guidelines based on the severity level 

of the crimes and Hoyt's criminal history score. The district court ordered Hoyt to serve 

the controlling 130-month prison sentence in the new cases consecutive to his 60-month 

sentence in the probation violation cases. So, in the end, Hoyt received a total sentence of 

190 months' imprisonment in all the cases instead of the 150-month sentence

recommended in the global plea agreement. Hoyt timely appealed his sentences in the 

four new cases, and this court consolidated the cases on appeal.
4

ANALYSIS

On appeal, Hoyt claims the district court abused its discretion in denying his 

motions for durational departure. He also claims that Senior Judge Chambers, who Hoyt 

refers to as a pro tem judge, abused his discretion when he failed to follow the "law of the 

case" established by Judge Dickinson who previously agreed to sentence Hoyt according 

to the global plea agreement in the probation violation cases. The State does not try to 

address these arguments but asserts that this court lacks jurisdiction to review Hoyt's 

presumptive sentences. In a reply brief, Hoyt asserts that this court has jurisdiction to 

review his sentences "because [his sentence] was not entirely presumptive. The probation 

violation portion of the sentence was modified[.]"

We must first address the State's contention that this court lacks jurisdiction to 

review Hoyt's presumptive sentences. Kansas courts only have the judicial power to 

decide matters over which they have jurisdiction. See State v. Huerta, 291 Kan. 831, 840-

41, 247 P.3d 1043 (2011) ("If subject matter jurisdiction is in question, that issue needs to 

be resolved first. The merits come second."). The existence of jurisdiction is a question of 

law subject to unlimited appellate review. State v. Looney, 299 Kan. 903, 906, 327 P.3d 

425 (2014). "'Appellate jurisdiction is defined by statute; the right to appeal is neither a 

vested nor a constitutional right.'" State v. Young, 313 Kan. 724, 728, 490 P.3d 1183 

(2021). To the extent this jurisdiction-based question requires statutory interpretation, a 

question of law, an appellate court exercises unlimited review. 313 Kan. at 728.

Under K.S.A. 2022 Supp. 21-6820(c)(1), an appellate court has no jurisdiction to 

review "[a]ny sentence that is within the presumptive sentence for the crime." A 

"'presumptive sentence' means the sentence provided in a grid block for an offender 

classified in that grid block by the combined effect of the crime severity ranking of the 

offender's current crime of conviction and the offender's criminal history." K.S.A. 2022 

Supp. 21-6803(q). Hoyt is trying to appeal the presumptive sentences the district court
5

imposed in four cases when the court denied Hoyt's motions for a durational departure. 

But the Kansas Supreme Court has expressly held that appellate courts lack jurisdiction 

to consider challenges to the denial of motions for departure sentences because courts 

lack jurisdiction to consider appeals from presumptive sentences. State v. Farmer, 312 

Kan. 761, 764, 480 P.3d 155 (2021).

Here, the record shows that the district court sentenced Hoyt within the 

corresponding presumptive gridbox in all four cases. In 19CR711, the aggravated sexual 

battery case, the district court denied Hoyt's departure motion and sentenced him to the 

standard number in the presumptive prison gridbox—120 months. Similarly, in 20CR38, 

the stalking case, the district court imposed 14 months' imprisonment—the mitigated 

sentence in the applicable gridbox. In 20CR189, the aggravated intimidation of a witness 

case, the district court also imposed a presumptive sentence of 39 months' imprisonment, 

the standard number in the gridbox. Finally, in 20CR551, the distribution of 

methamphetamine case, the district court imposed a presumptive prison sentence of 130 

months' imprisonment, the mitigated number in the applicable gridbox.

Hoyt's contention that his sentences were not presumptive because the probation 

portion of the sentences were modified is unavailing. Hoyt is not appealing the sentences 

the district court imposed because of the probation violations. In the four cases that are 

the subject of this appeal, Hoyt received a presumptive sentence in each case. As a result, 

we agree with the State's contention that this court lacks jurisdiction under K.S.A. 2022 

Supp. 21-6820(c)(1) to review Hoyt's sentences on appeal. This includes Hoyt's claims 

that the district court abused its discretion by denying the departure motions and failed to 

follow the "law of the case" when it refused to follow the plea agreement.

As a separate issue, Hoyt claims that his due process rights were violated because 

there is no transcript of the joint sentencing hearing. When Hoyt's counsel requested a 

transcript of the joint sentencing hearing held on November 8, 2021, the court reporter 
6

responded that there was no record for this hearing because the "record button was not 

activated and no recording was made." As a result, this court granted Hoyt's request to 

stay the appeal and remanded the case to the district court for recreation of the record 

under Supreme Court Rule 3.04(a) (2023 Kan. S. Ct. R. at 24). On remand, the parties 

prepared a written "Statement of Proceedings" signed by counsel for each party and 

approved by the district court. The Statement of Proceedings states that Hoyt's attorney at 

the sentencing hearing, who is also Hoyt's attorney in this appeal, "was not able to recall 

the specifics of the sentencing hearing" and "was not able to add anything regarding the 

sentencing hearing other than what is reflected in the court file and the journal entry."

Now, on appeal, Hoyt argues that "[t]he lack of an accurate and complete record of 

the sentencing hearing is a violation of [his] due process rights. The case should be 

remanded for new sentencing." The State responds that Hoyt cannot establish a due 

process violation because he "cannot make any showing that the lack of a transcript 

would have changed the appeal." We agree with the State.

The Kansas Supreme Court has recently noted that a defendant has "a due process 

right to reasonably accurate trial transcripts, and a defendant may be entitled to a new 

trial if manifestly incomplete or inaccurate transcripts preclude meaningful appellate 

review." State v. Frantz, 316 Kan. 708, 743-44, 521 P.3d 1113 (2022). That said, where a 

defendant's claim is based on "inaccurate or incomplete transcripts," the defendant "'must 

make the best feasible showing possible that a complete and accurate transcript might 

have changed the outcome of the appeal.'" 316 Kan. at 744. "A defendant does not have a 

constitutionally protected right to a totally accurate transcript of the criminal 

proceedings." State v. Holt, 298 Kan. 531, 538, 314 P.3d 870 (2013).

Here, when Hoyt discovered that a transcript of the sentencing hearing was 

inadvertently never created, the parties followed the procedure set forth in Rule 3.04(a) to 

recreate the record. That is the purpose of the rule. Hoyt cannot show that a sentencing
7

transcript would have affected the outcome of this appeal. Even if the sentencing 

transcript—rather than the agreed Statement of Proceedings—were available, Hoyt's 

appeal would still be dismissed for lack of jurisdiction. This is because Hoyt is appealing 

from presumptive sentences over which this court has no jurisdiction to review. Hoyt 

complains that the Statement of Proceedings gives no reasons why the district court 

denied the motions for durational departure. But under Kansas law, a sentencing court is 

not required to state the reasons a departure motion is denied; the law only requires the 

court to state substantial and compelling reasons for granting a departure. State v. 

Florentin, 297 Kan. 594, 601-02, 303 P.3d 263 (2013).

Hoyt is trying to appeal from his presumptive sentences under the sentencing 

guidelines. We have no jurisdiction to review these sentences under K.S.A. 2022 Supp. 

21-6820(c)(1). Having a transcript of the sentencing hearing instead of the Statement of 

Proceedings agreed upon by the parties and approved by the district court would not 

change the result of this appeal. We must dismiss this appeal for lack of jurisdiction and 

Hoyt's due process claim does not provide him with any independent basis for relief.

Appeal dismissed.