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No. 112,444

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

TONY JAY MEYER,

Appellant.

SYLLABUS BY THE COURT

The State's breach of a plea agreement denies the defendant due process even 

when the district court's sentencing decision is unaffected by that breach. As such, a 

breach will only constitute harmless error if a court can say beyond a reasonable doubt 

that the State's promise had little, if any, influence on the defendant's decision to enter 

into the plea agreement. This harmless error rule applies both when the defendant objects 

to the breach and when he or she raises the issue for the first time on appeal.

Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed October 23, 

2015. Sentence vacated and case remanded with directions.

Heather Cessna, of Kansas Appellate Defender Office, for appellant. 

Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek 

Schmidt, attorney general, for appellee.

Before HILL, P.J., PIERRON and ARNOLD-BURGER, JJ.

ARNOLD-BURGER, J.: Tony Jay Meyer sexually assaulted his foster sister and pled 

no contest to two charges stemming from that assault. As part of a plea agreement, the 
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State promised to depart to the sentencing grid and recommend mitigated consecutive 

sentences. Instead, the State admittedly breached the plea agreement and recommended 

aggravated sentences. Nonetheless, the district court sentenced Meyer to concurrent 

mitigated sentences. Because we are unable to say beyond a reasonable doubt that the 

State's promise to recommend mitigated sentences had little, if any, influence on the 

defendant's decision to enter into the plea agreement, we must vacate Meyer's sentence 

and remand the case for resentencing before a different judge with instructions that the 

State specifically adhere to the plea agreement.

FACTUAL AND PROCEDURAL HISTORY

After Meyer sexually assaulted his 7-year-old foster sister, the State charged him 

with a single count of aggravated criminal sodomy. Later, the State added a single count 

of aggravated indecent liberties with a child. 

Ultimately, the State and Meyer entered into a plea agreement. In exchange for 

Meyer pleading guilty or no contest to the charges, the State agreed to stipulate to a 

departure to the sentencing grid and to recommend consecutive mitigated sentences from 

the applicable grid boxes. Meyer retained the ability to argue for a further departure, 

although the State reserved the right to oppose such a motion. The district court accepted 

Meyer's pleas and convicted him of both charges. 

Before sentencing, Meyer filed a motion for a further departure down to two 

concurrent sentences of 75 months' imprisonment each. Meyer based his arguments 

largely on a psychologist's opinion that with the proper treatment, Meyer posed no future 

threat to the community. The district court heard argument on the motion at sentencing, 

with the State—as indicated in the plea agreement—opposing the additional departure. At 

the end of its argument, the State summed up its position by saying, "We're asking the 

Court to impose an aggravated sentence of 165 months on the aggravated criminal 
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sodomy and a consecutive sentence of 61 months on the aggravated indecent liberties 

with a child." 

The district court agreed to depart to the sentencing grid but denied Meyer's 

motion for a further departure. However, the district court also stated, "I do not believe 

that the State's recommendation for aggravated consecutive sentences is appropriate 

given the totality of the circumstances we're facing in this case." Instead, the district court 

sentenced Meyer to concurrent mitigated sentences of 147 months' and 55 months'

imprisonment. 

Shortly after sentencing, Meyer timely appealed. However, his notice of appeal 

was specific to "the sentence imposed on March 3, 2014, specifically on the issue of 

lifetime post release and lifetime electronic monitoring." 

ANALYSIS

For the first time on appeal, Meyer argues that the State violated the plea 

agreement when it recommended the aggravated sentence rather than the mitigated one. 

The State admits that it recommended the wrong number but counters that the error is a 

harmless one. 

But as a preliminary matter, the State strenuously contends that this court lacks the 

ability to even hear Meyer's arguments. So we will first examine the State's jurisdictional 

arguments.

Insufficient notice of appeal

The State's first argument centers on Meyer's notice of appeal. As previously 

noted, Meyer appealed "the sentence imposed on March 3, 2014, specifically on the issue 
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of lifetime post release and lifetime electronic monitoring." The State contends that 

because Meyer limited his appeal to only those two sentencing issues, this court lacks 

jurisdiction to consider any argument beyond that very limited scope. 

A criminal defendant may appeal "from any judgment against the defendant in the 

district court." K.S.A. 2014 Supp. 22-3602(a). In order to perfect this appeal, however, 

the defendant must file a notice of appeal. K.S.A. 2014 Supp. 60-2103(a). "It is a 

fundamental proposition of Kansas appellate procedure that an appellate court obtains 

jurisdiction over the rulings identified in the notice of appeal." State v. Huff, 278 Kan. 

214, Syl. ¶ 2, 92 P.3d 604 (2004). Although our Kansas courts liberally construe notices 

of appeal to assure each proceeding is just, "there is still a substantive minimum below 

which a notice cannot fall and still support jurisdiction." State v. Laurel, 299 Kan. 668, 

673, 325 P.3d 1154 (2014). Whether jurisdiction exists is a question of law over which 

this court exercises unlimited review. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 

(2014).

Several recent cases have allowed our Kansas courts the opportunity to better 

define and describe that substantive minimum. Broad and general language that 

encompasses all adverse rulings or every order in a case is "sufficiently inclusive to 

perfect appeals from otherwise unspecified rulings." Gates v. Goodyear, 37 Kan. App. 2d 

623, 627, 155 P.3d 1196, rev. denied 284 Kan. 945 (2007). However, when an appellant 

specifically names a given order or ruling, the appellate court obtains jurisdiction over 

that order alone. See 37 Kan. App. 2d at 628-29. For example, a notice that a defendant 

intends to appeal his or her sentence is insufficient to also appeal the conviction from 

which that sentence stems. See State v. Coman, 294 Kan. 84, 90, 273 P.3d 701 (2012).

However, a notice of appeal is also not meant to be overly technical or detailed. 

State v. Wilkins, 269 Kan. 256, 270, 7 P.3d 252 (2000). Typographical errors and 

misplaced modifiers, although faults in the notice of appeal, are insufficient to divest the 
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court of jurisdiction. See State v. Lewis, 301 Kan. 349, 370, 344 P.3d 928 (2015) 

(misplaced date modifier); Laurel, 299 Kan. at 675 (wrong appellant's name). And 

perhaps more importantly, our Kansas courts frequently consider whether the State is 

prejudiced or surprised "by a defendant's timely filed but otherwise faulty notice of 

appeal." 299 Kan. at 674. 

Here, Meyer specifically appealed from his sentencing and now raises two issues 

that arose during that hearing: the State's violation of the plea agreement and the district 

court's decision on his departure motion. No other hearings or orders are implicated. 

Moreover, the State alleges no prejudice or surprise stemming from the notice of appeal. 

Instead, the State appears to argue that despite the rule of liberal construction, Meyer 

must be strictly held to those issues named in the notice. See Laurel, 299 Kan. at 673. But 

as noted in State v. Boyd, 268 Kan. 600, 606, 999 P.2d 265 (2000),

"The notice of appeal is not a device to alert the parties to all possible arguments on 

appeal. That is the purpose and function of the docketing statements and briefs filed by 

the parties. . . . Whether a party has detailed its arguments in the notice of appeal does not 

affect the State's practice or its appellate strategy." 

Accordingly, we find that the notice of appeal in this case is sufficient to establish 

jurisdiction over Meyer's sentencing and the two issues that arose at sentencing and that 

he now appeals. 

Failure to raise the issue below

Next, the State argues that Meyer failed to preserve the issue concerning the plea 

agreement. Because Meyer never objected before the district court, the State contends 

that this court cannot hear the issue. Moreover, the State rejects Meyer's argument that 

two of the exceptions to this preservation rule apply. 
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Generally, issues not raised before the trial court cannot be raised on appeal. See 

State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). But there are exceptions to this 

rule. Specifically, a new legal theory may be asserted for the first time on appeal if: (1) 

the new theory involves only a question of law arising on proved or admitted facts and is 

finally determinative of the case; (2) consideration of the theory is necessary to serve the 

ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the trial 

court may be upheld despite its reliance on the wrong ground or having assigned a wrong 

reason for its decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). But an 

appellant must also explain why such an issue should be considered for the first time on 

appeal, lest this court deem the issue improperly briefed or waived and abandoned. See 

State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015). 

Here, Meyer clearly presents two justifications for why this court should hear the 

plea agreement issue despite his failure to raise it below. First, he points out that this 

issue involves only a question of law arising on admitted facts. Second, he argues that 

this issue prevents the denial of his due process rights. The State, however, claims that 

neither of these exceptions apply. 

There is no need to address the first exception, because the second exception 

clearly applies here. When the State violates a plea agreement, the defendant's due 

process rights are violated. State v. Urista, 296 Kan. 576, Syl. ¶ 2, 293 P.3d 738 (2013). 

As such, "appellate courts may address the issue for the first time on appeal in order to 

serve the ends of justice or prevent a denial of fundamental rights." State v. Chetwood, 38 

Kan. App. 2d 620, Syl. ¶ 4, 170 P.3d 436 (2007), rev. denied 286 Kan. 1181 (2008). And 

although the State asserts in its brief that no denial of fundamental rights occurred, Urista

instructs that a breach of the plea agreement violates the defendant's rights even when the 

district court's decision is unaffected by the State's actions. 296 Kan. 576, Syl. ¶ 2. In 

other words, this exception applies regardless of whether the defendant suffered harm 
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from the State's breach. 296 Kan. 576, Syl. ¶ 2; Chetwood, 38 Kan. App. 2d 620, Syl. ¶ 4. 

Accordingly, we will consider the issue despite Meyer's failure to object below.

The breach of the plea agreement

Having addressed the State's preliminary arguments, the next question is whether 

the State's breach of the plea agreement constitutes harmless error. The State concedes 

that it violated the agreement when it recommended the aggravated sentences rather than 

the mitigated ones. But the State also maintains that Meyer suffered no harm from this 

breach, as the district court sentenced him to mitigated (per the plea agreement) and 

concurrent (per his departure request) sentences. 

As previously mentioned, the State's breach of a plea agreement denies the 

defendant due process even when the district court's sentencing decision is unaffected by 

that breach. Urista, 296 Kan. at 594. As such, a breach will only constitute harmless error 

"if a court can say beyond a reasonable doubt that the State's promise had little, if any, 

influence on the defendant's decision to enter into the plea agreement." 296 Kan. at 594-

95. This harmless error rule applies both when the defendant objects to the breach and 

when he or she raises the issue for the first time on appeal. See 296 Kan. at 594-95

(timely objection); State v. McDonald, 29 Kan. App. 2d 6, 9-11, 26 P.3d 69 (2001) (issue 

raised for the first time on appeal). 

The State contends that the breach is harmless because the most important part of 

the plea agreement was the departure to the sentencing grid. However, nothing in the 

record suggests that Meyer's motivation revolved solely around that departure. It is just as 

likely that Meyer entered into the plea agreement for both the departure to the grid and 

the mitigated sentences, or even for the mitigated sentences alone. After all, Meyer 

moved for a further departure prior to sentencing, arguing that his circumstances justified 

an even shorter sentence than the one to which he and the State agreed. This motion at 
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least suggests that Meyer wished to serve the shortest prison sentence possible, meaning 

that the promise of a mitigated sentence could have attracted him to the agreement as 

much as the promise of the departure to the grid. And even without such speculation, the 

State's unsupported assertion about Meyer's motivations is insufficient to satisfy the high 

burden placed upon the State in proving the error's harmlessness. 

As for the State's contention that this court should consider the sentence Meyer 

ultimately received when deciding whether the error is harmless, our Kansas Supreme 

Court in Urista clearly articulated that the test for harmlessness concerns only the effect 

that the State's promise had on the defendant's decision to enter into the plea agreement. 

296 Kan. at 594-95. This court is duty bound to follow Kansas Supreme Court precedent 

absent some indication that the court is departing from its previous position. State v. 

Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 

(2012). There is no indication that our Supreme Court has abandoned or altered the 

harmless error test from Urista. Moreover, there is no way to know whether the State's 

recommendation for aggravated sentences affected the district court's decision to deny 

Meyer's motion for further departure. The State's argument that Meyer's final sentence 

demonstrates the harmlessness of the breach is unpersuasive.

In short, the State breached the plea agreement and violated Meyer's due process 

rights when it recommended the aggravated sentences rather than the mitigated ones. The 

State also failed to demonstrate beyond a reasonable doubt that Meyer's decision to enter 

into the agreement was not influenced by the promise to recommend those mitigated 

sentences. The error is therefore not harmless. 

Despite his favorable sentence and the possibility of either a more favorable or a 

less favorable sentence on remand, Meyer requests that this case be remanded for 

resentencing before a different judge with instructions that the State specifically perform 

the agreement, which is the typical remedy for a case such as this one. See Urista, 296 
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Kan. at 595. We agree. Accordingly, Meyer's sentence is vacated and the case remanded 

for resentencing before a different judge with instructions that the State specifically

adhere to the plea agreement. 

Sentence vacated and case remanded with directions.