23 Kan. App. 2d 342

No. 74,779

STATE OF KANSAS, Appellee, v. GALEN J. BURROWS, Appellant.

SYLLABUS BY THE COURT

1. When a defendant's offense falls within a nonprison sentencing grid classification and that offense was committed while the defendant was incarcerated for another felony offense, the sentencing judge has the discretion to impose incarceration or probation. The imposition of either incarceration or probation in this circumstance is the imposition of a presumptive sentence.

2. Absent a claim that a sentence was the result of partiality, prejudice, oppression or corrupt motive, an appellate court has no jurisdiction to review an appeal from that sentence.

Appeal from Sedgwick District Court; TOM MALONE, judge. Opinion filed January 10, 1997. Appeal dismissed.

Tom Jacquinot, special appellate defender, and Jessica R. Kunen, chief appellate defender, for appellant.

Charles R. Reimer, assistant district attorney, and Carla J. Stovall, attorney general, for appellee.

Before BRAZIL, C.J., PIERRON and ROYSE, JJ.

BRAZIL, C.J.: Galen J. Burrows appeals from the sentencing court's order of incarceration, claiming abuse of discretion when the sentencing court ruled that the presumption of probation was lost because defendant committed his current offenses while under custody supervision, as an escapee, for a felony offense. We dismiss the appeal.

Burrows pled guilty to three counts of burglary, severity level 9 nonperson felonies. The district court accepted the plea and ordered a presentence investigation report.

At sentencing, the parties agreed on the criminal history of E. The court noted and the defendant confirmed that the present offenses were committed while defendant was an escapee from Oklahoma. There was an outstanding warrant for the defendant from Oklahoma and a detainer from that state. The sentencing court made a finding that the current crimes were committed while defendant was incarcerated for a felony conviction. The court indicated that the presumption of probation was lost and therefore the court could impose incarceration without it being a departure sentence.

The court sentenced defendant to 10 months' incarceration on each count to run concurrently, but consecutive to any sentence imposed in Oklahoma. The sentencing judge said: "I'm going to exercise my option under K.S.A. 21-4603(b) and order that Mr. Burrows serve his sentence in this case."

Burrows argues that the Kansas Sentencing Guidelines Act (KSGA) allows an appeal from a departure sentence but not a presumptive sentence, but that his was neither. He contends that since the sentencing court had the option to follow the presumptive sentence of probation or imprison him under K.S.A. 21-4603d(a), the court had unlimited discretion; therefore, the appellate court can review an appeal of his sentence based on abuse of discretion.

"Interpretation of the KSGA is a question of law whereby this court's scope of review is unlimited." State v. Chronister, 21 Kan. App. 2d 589, 595, 903 P.2d 1345 (1995).

The KSGA provides specific guidelines for appellate review of sentences. Under K.S.A. 1994 Supp. 21-4721(c)(1), appellate courts shall not review sentences within the presumptive sentence for the crime. That section "was adopted by the legislature to foreclose the type of appeals which had previously been lodged under the former statutory scheme alleging that the sentencing court abused its discretion." State v. Starks, 20 Kan. App. 2d 179, Syl. ¶ 8, 885 P.2d 387 (1994). Under K.S.A. 1994 Supp. 21-4721(d), if the sentence is a departure, review is limited to whether the sentencing court's reasons justified departure. The only remaining bases for review are if appellant claims a sentence resulted from partiality, prejudice, oppression, or corrupt motive or the sentencing court erred in assigning a criminal history score or in ranking the crime severity level. K.S.A. 1994 Supp. 21-4721(e). The KSGA does not provide for review of a claim that the sentence resulted from abuse of discretion.

K.S.A. 21-4603d(a) provides in relevant part:

"'It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.'" City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993).

In other provisions of the KSGA, when the sentencing court is given the option of imposing a nonprison or prison sentence, it clearly provides that the sentence "shall not be considered a departure and shall not be subject to appeal." K.S.A. 21-4704(f), (g), and (h). A departure sentence is a sentence "which is inconsistent with the presumptive sentence for an offender." K.S.A. 21-4703(f).

In State v. Bost, 21 Kan. App. 2d 560, 903 P.2d 160 (1995), the court determined that there was neither a presumption of imprisonment nor of probation when defendant fell within the nondrug 5-H border box. 21 Kan. App. 2d at 568. The court went on to say:

Following the same reasoning in Bost, we conclude that the legislature gave sentencing judges the discretion to impose incarceration or probation when a defendant's offense falls within a nonprison sentencing grid classification and that offense was committed while the defendant was incarcerated for another felony offense. The imposition of either incarceration or probation in this circumstance is the imposition of the presumptive sentence. Since Burrows did not claim his sentence was a result of partiality, prejudice, oppression, or corrupt motive, this court has no jurisdiction to review his appeal. K.S.A. 1994 Supp. 21-4721(e); State v. Myers, 20 Kan. App. 2d 401, 403, 888 P.2d 866 (1995).

Appeal dismissed.