No. 104,489

#### State of Kansas, *Appellee,*v. Waddell Warren, *Appellant.*

(304 P.3d 1288)

Opinion filed July 12, 2013.

*Ryan Eddinger,*of Kansas Appellate Defender Office, was on the brief for appellant.

*Amanda G. Voth,*assistant district attorney, *Keith E. Schroeder,*district attorney, and *Derek*Schmidt, attorney general, were on the brief for appellee.

*Per Curiam.-.*

Waddell Warren was convicted of introducing a controlled substance into a correctional facility and sentenced to an additional 122 months in prison. Warren requested that he be given a departure sentence because the amount of marijuana found in his socks was very small. The district court ruled that it could not consider a lesser sentence on that basis.

*882Warren appealed, claiming: (1) the district court erroneously concluded it could not even consider whether to grant a downward departure sentence to Warren based on the small amount of drugs he possessed, and (2) Warren’s speedy trial rights were violated because he was not brought to trial within the time limits set by the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 *et seq.*

The Court of Appeals held that it had jurisdiction to review the decision of the district court to deny Warren’s motion for a downward departure. The panel further held that while the decision of whether the district court actually should grant a departure sentence to Warren was a matter of discretion, the decision on whether the amount of drugs could be considered was an issue of law. The Court of Appeals affirmed the judgment of the district court in part, vacated the sentence entered by the district court, and remanded tire case with directions to resentence tire defendant in accordance with its opinion.

The State petitioned for our review, challenging only the sentencing issue. This court granted the State’s petition for review; and we now dispose of the issue without oral argument under Kansas Supreme Court Rule 8.03(h)(3) (2012 Kan. Ct. R. Annot. 76).

We conclude that the Court of Appeals was correct. We, therefore, adopt the following from Judge Steve Leben’s well-written opinion on behalf of the panel of our Court of Appeals:

> “We face two primary questions in deciding Warren’s appeal. First, we must determine whether we have jurisdiction to consider the appeal at all. Warren received the presumptive sentence for his offense and criminal-history score, and we have no jurisdiction to review a presumptive sentence. K.S.A. 21-4721(c)(l). Second, if we do have jurisdiction, we must determine whether die district court’s ruling that a less-than-guidelines sentence cannot be given based on the amount of drugs was correct.

> 

> “I. *We Have Jurisdiction to Consider the Limited Question Presented in this Appeal, Even Though the Defendant Received a Presumptive Sentence.*

> “We begin with the jurisdictional question. To determine the answer, we must consider the language of K.S.A. 21-4721(c)(l) as well as the holdings in three cases: *State v. Huerta,*291 Kan. 831, 247 P.3d 1043 (2011); *State v. Dillon,*44 *883Kan. App. 2d 1138, 244 P.3d 680 (2010); and *State v. Cisneros,*42 Kan. App. 2d 376, 212 P.3d 246 (2009).

> “K.S.A. 21-4721(c)(l), as it stood at the time Warren filed his appeal, provided that an ‘appellate court shall not review . . . [a]ny sentence that is within the presumptive sentence for the crime . . . .’ As our Supreme Court explained in *Huerta,*this statutory provision represented an intention to remove presumptive sentences from appellate review, even when appeals were based on a claim of prejudice, corrupt motive, or an error involving a constitutional right. 291 Kan. at 835-37, 838. Thus, the court instructed in *Huerta*that a presumptive sentence could not be appealed based on a claim that an individual presumptive sentence was unconstitutional for some reason. 291 Kan. 831, Syl. ¶ 3. And the court in *Huerta*specifically disapproved our decision in *Dillon,*which had considered an appeal on the basis that the district judge had refused to consider the constitutionality of tire sentence. *Huerta,*291 Kan. at 839-41.

> “But Warren is not raising a constitutional due-process argument or an argument that his presumptive sentence was unconstitutionally severe based on his facts. Warren instead argues that his appeal may be heard because the district court misinterpreted its sentencing options, the same argument our court ruled upon in *Cisneros.*

> “In *Cisneros,*the defendant initially received probation, but the probation was revoked and tire defendant was sent to prison to serve his original 155-month sentence. At the probation-revocation hearing, the defendant asked the district court to enter a lesser sentence, but the judge said that was ‘not within my power here.’ 42 Kan. App. 2d at 377. In fact, however, K.S.A. 22-3716(b) allows the district court to order the defendant either to serve the original sentence ‘or any lesser sentence’ when probation is revoked. When Cisneros appealed, the State argued that our court lacked jurisdiction to consider the appeal because Cisneros had received a presumptive sentence. But our court considered the appeal a question of statutory interpretation rather than a review of a presumptive sentence:

> ‘. . . Cisneros is not appealing the term or length of his sentence so much as he is appealing the district court’s judgment that it had no power to reduce his sentence upon revoking his probation. This is a question of law that we have jurisdiction to consider on appeal. If we were to dismiss the appeal for lack of jurisdiction as the State requests, tiren Cisneros would have no remedy to determine whether the district court properly applied K.S.A. 22-3716(b) in his case.’ 42 Kan.App.2d at 379.

> [The Court of Appeals] reversed, explaining that tire district court had misunderstood its statutory authority. The case was remanded for resentencing, but the district court was free to enter whatever sentence it found appropriate, though it would understand on remand that the original sentence was not its only option.

> “If *Cisneros*is still good law, then Warren is entitled to be heard on appeal because he presents essentially the same argument that we addressed there. In *Cisneros,*the district judge said, 1 don’t have the power to lower [tire sentence]. *884That is not within my power here.’ 42 Kan. App. 2d at 377. But under the applicable statute, K.S.A. 22-3716(b), the district judge in *Cisneros did*have the power to give Cisneros a lesser sentence upon revoking Iris probation. In Warren’s case, the district judge also held that he did not have the power to reduce Warren’s sentence. Warren’s judge identified the question of whether the small amount of drugs can be ‘a legally sufficient reason’ to depart, but concluded, T do not believe that meets the statutory factor, or factors [,] and [is] legally sufficient to constitute a substantial and compelling reason for departure, the amount of drugs involved.’ And in Warren’s case, as in *Cisneros,*Warren malees the argument that under the applicable statute, K.S.A. 21-4716(c)(l)(E), the judge in Warren’s case *did*have tire power to give him a lesser sentence.

> “In both Warren’s case and in *Cisneros,*tiren, the appeal was based on the claim that the district court misinterpreted a statute and thus unduly limited its own statutory authority when sentencing the defendant. We see no meaningful distinction between the two cases, so we must now determine whether *Cisneros*is still good law given the Kansas Supreme Court’s decision in *Huerta.*We must determine the jurisdictional issue before addressing the merits of Warren’s claim. *Huerta,*291 Kan. at 840-41.

> “The rulings made in *Huerta*do not undermine the continued validity of *Cis-neros.*In *Huerta,*the court decided three issues: (1) the lack of appellate jurisdiction to consider an appeal of a presumptive sentence under K.S.A. 21-4721(c)(1) does not violate equal-protection rights; (2) the defendant had abandoned any due-process challenge to K.S.A. 21-4721(c)(l); and (3) a criminal defendant’s claim that the sentence amounts to some constitutional violation does not give the defendant the right to appeal a presumptive sentence. 291 Kan. 831, Syl. ¶¶ 1-3. None of these rulings deals with the question that was presented in *Cisneros,*which was whether an appellate court may set aside a sentence and order reconsideration of the sentence by the district court when that court has explicitly misinterpreted its own statutory sentencing audiority.

> “But we must also consider some comments made about *Cisneros*in one section of the *Huerta*opinion. In that section, the *Huerta*court was considering—and disapproving—our court’s opinion in the *Dillon*case. In *Dillon,*our court had ruled that when a defendant asks for a departure sentence on constitutional grounds and the district court explicitly refuses to consider that argument, the sentence may be set aside and the case sent back for resentencing because the court had denied due process to the defendant. 44 Kan. App. 2d 1138, Syl. ¶ 2. But our Supreme Court disagreed and announced its disapproval of *Dillon*in *Huerta,*where it also said that the *Dillon*court had been wrong to rely upon *Cisneros*as part of the rationale for the *Dillon*ruling:

> *‘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 rev*885ocation of probation. *Dillon,*44 Kan. App. 2d at 1145. In *Cisneros,*the defendant appealed because the district judge believed he had no power to reduce Cisneros’ sentence upon a probation revocation, despite language to the contrary in K.S.A. 22-3716(b). The Court of Appeals determined that this was a question of law over which it had jurisdiction. 42 Kan. App. 2d at 379. The court went on to state that, if it dismissed Cisneros’ appeal for lack of jurisdiction under K.S.A. 21-4721(c)(l), “ ‘then Cisneros would have no remedy to determine whether the district court properly applied K.S.A. 22-3716(b) in his case.’ ” 42 Kan. App. 2d at 379. *Cisneros*is plainly factually and procedurally distinct from tire situation before the Court of Appeals in *Dillon,*and *Dillons*reliance on *Cisneros*was misplaced.’ *Huerta,*291 Kan. at 840.

> To be sure, our Supreme Court indicated that our court had been wrong to rely upon the *Cisneros*holding as a basis for our conclusion in *Dillon*that a presumptive sentence could sometimes be appealed if the district court had refused to consider a potentially viable constitutional issue at sentencing. But the *Dillon*case presented a different question tiran presented in *Cisneros,*and the *Huerta*court does not make any criticism of the *Cisneros*holding. Indeed, another panel of our court concluded that ‘[t]he *Huerta*court, by specifically distinguishing *Cisneros*from *Dillon,*tacitly approved the jurisdictional exception set forth in *Cisneros.’ State v. Monroe,*No. 104,822, 2011 WL 6942941, at *3 (Kan. App. 2011) (unpublished opinion).

> “We conclude that the rationale of *Cisneros*is solid and that its holding has not been undercut by the *Huerta*decision. In both *Huerta*and *Dillon,*the defendants sought appellate review based on a constitutional claim, while in both *Cisneros*and in Warren’s case the defendants seek review only regarding a misinterpretation allegedly made by the district court of its own authority under the sentencing statutes. We therefore have jurisdiction to consider the limited argument made here by Warren—that the district court wrongly interpreted its statutory sentencing authority and therefore refused to consider matters before it that were potentially relevant to the sentence.

> “II. *The District Court Could Have Given Warren a Downward-Departure Sentence But Wrongly Refused to Consider That Possibility Because It Misinterpreted a Sentencing Statute.*

> “We turn then to the merits of the appeal—whether the district court had statutoiy authority to consider Warren’s request for a lesser sentence. The sentencing guidelines called for one of three sentences: 122 months (the mitigated sentence), 130 months (the standard sentence), or 136 months (the aggravated sentence). The district court chose the mitigated number, 122 months.

> “Warren had asked for a downward-durational-departure sentence of 40 months based on his claim that the degree of harm was less than typical because the amount of drugs involved was so small. K.S.A. 21-4716(c)(l)(E) allows a departure sentence when ‘[t]he degree of harm . . . attributed to the current crime *886of conviction was significantly less than typical for such an offense.’ But the district court held that it had no authority to depart based on the amount of drugs because the statute prohibits any contraband in a prison and no specific amount threshold is found in the statute.

> “The question we must address is whether a lesser, or departure, sentence can ever be granted based on the small quantity of drugs involved when sentencing a defendant for bringing contraband into a prison in violation of K.S.A. 21-3826. We review that question independently, without any required deference to the district court, because the question is one of statutory interpretation. See *State v. Spencer,*291 Kan. 796, 807, 248 P.3d 256 (2011). So the question before us is: Can the small quantity of drugs in a prison-contraband case constitute a substantial and compelling reason to depart under K.S.A. 21-4716(c)(l)(E) because the degree of harm is significantly less than typical for such an offense?

> “The State argues that because the law bans all contraband, no matter the quantity, that having a small quantity is just as bad as a large one—all contraband is inherently dangerous. It’s certainly true that the law forbids any contraband in prison, regardless of amount. But we see no reason that tire quantity of drugs may not be taken into account as a sentencing-departure factor, just as it may be in nonprison cases involving drug possession. See *State v. Davis,*262 Kan. 711, 941 P.2d 946 (1997) (finding that district court could enter upward departure sentence in part based on large quantity of drugs involved).

> ‘We note too that our court has previously held that a downward-durational-departure sentence could be given based on the small quantity of drugs involved in a prison-contraband case. In an unpublished decision in another case from Reno County, our court affirmed a downward-departure sentence of 20 months, rather than the guidelines’ 40- to 46-month range, when the inmate possessed only two small marijuana cigarettes and the district court had found that a substantial and compelling reason to depart. *State v. Myers,*No. 90,525, 2004 WL 1176634 (Kan. App. 2004) (unpublished opinion). In that opinion, our court provided a cogent rejection of the State’s argument that quantity should not be an available departure factor since die possession of any contraband violates die law:

> ‘The issue is not what is required for a conviction, but what is typical in such a conviction. Myers was convicted under K.S.A. 2003 Supp. 21-3826, which defines traffic in contraband in a correctional institution. It covers not only possession, but other activities such as bringing contraband into the institution, sending contraband from die institution, and distributing contraband within the institution. Apparendy Myers was not a dealer but an end-user at the end of the distribution chain. Myers’ possession of two small marijuana cigarettes was a valid departure factor under K.S.A. 2003 Supp. 21-4716(c)(l)(E).’ 2004 WL 1176634, at °2.

> We conclude that the possession of only a small quantity of drugs constitutes a valid factor upon which a departure sentence *may*be entered on a prison-contraband conviction.

> *887“We express no opinion on whether the district court actually should grant a departure sentence to Warren. That is a discretionary call to be made by the district court, not the appellate court. See *Spencer,*291 Kan. 796, Syl. ¶ 6. But tire district court in Warren’s case wrongly concluded that it could not even consider this issue. We therefore remand for resentencing so that the district court may properly exercise the discretion given to it by statute.” *State v. Warren,*47 Kan. App. 2d 57, 58-64.

Based on this reasoning, the judgment of the Court of Appeals is affirmed. The sentence entered by the district court is vacated, and the case is remanded to the district court with directions to resentence the defendant in accordance with this opinion.