NOT DESIGNATED FOR PUBLICATION
No. 124,477
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
CLAYTON MCDANIEL,
Appellant.
MEMORANDUM OPINION
Appeal from Leavenworth District Court; GERALD R. KUCKELMAN, judge. Opinion filed July 1,
2022. Affirmed in part and dismissed in part.
Andrew E. Werring, of Farris, Fresh, and Werring Law Office, LLC, of Atchison, for appellant.
Christopher Lyon, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before ISHERWOOD, P.J., SCHROEDER and WARNER, JJ.
PER CURIAM: Clayton McDaniel pleaded no contest to possessing fentanyl and
received a presumptive prison sentence. On appeal, he argues that the district court
should have found him eligible to serve his sentence in a drug-abuse treatment program
instead of prison. But contrary to McDaniel's arguments on appeal, his criminal history
disqualifies him from mandatory drug treatment, and the district court specifically
declined to make other findings that would permit him to enter treatment instead of a
traditional prison sentence.
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After carefully considering the record and the parties' arguments, we affirm the
district court's decision. And because McDaniel received a presumptive prison sentence,
we lack jurisdiction to review McDaniel's other claims. We thus dismiss his appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The State charged McDaniel with unlawful possession of fentanyl, a severity level
5 drug felony, committed in July 2019. He later pleaded no contest to the charge. Before
sentencing, the State prepared a presentence investigation report that calculated
McDaniel's criminal-history score as B. Among McDaniel's previous convictions were
three misdemeanor domestic-battery convictions and one aggravated domestic-battery
conviction, a severity level 7 person felony. K.S.A. 2021 Supp. 21-5414(c)(2). The
district court converted the three misdemeanor domestic-battery convictions to one
person felony for criminal-history purposes. See K.S.A. 2021 Supp. 21-6811(a).
McDaniel objected to his criminal-history score, arguing that it should be lower
and that he was eligible for mandatory drug treatment. He also moved for downward
dispositional and durational departures from the presumptive 34-month prison sentence
he faced under the Kansas Sentencing Guidelines.
At sentencing, the district court heard arguments and evidence on the motions.
Testimony showed that McDaniel had taken several steps to address both his drug use
and abusive behavior and that he was employed. McDaniel also emphasized that his
current conviction arose from possessing a small quantity of drugs.
After hearing the testimony and the parties' arguments, the district court declined
to order drug treatment or depart from the presumptive sentence. Despite McDaniel's
progress, the court indicated it was concerned with McDaniel's multiple domestic-
violence convictions and his alleged violation of the conditions of his probation in
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another case—particularly because this noncompliance supposedly included failing to get
a domestic-violence assessment, violating no-contact orders, and using drugs. The court
was thus unwilling to find that McDaniel did not pose a threat to public safety. As a
result, the court denied McDaniel's criminal-history objection and departure motion
before sentencing him to the presumptive sentence—34 months in prison. McDaniel
appeals this sentence.
DISCUSSION
McDaniel challenges the district court's decisions denying his criminal-history
objection and his request for a departure sentence. In particular, McDaniel argues he was
eligible for mandatory drug treatment under K.S.A. 2019 Supp. 21-6824 because the
statute uses the plural "felonies" when outlining eligibility restrictions—he asserts that he
only had one previous felony conviction, though his misdemeanors had been aggregated
for criminal-history purposes. He argues that because the district court imposed a
sentence without ordering the assessments necessary to determine whether he qualified
for mandatory drug treatment, his sentence was illegal and requires reversal.
As a starting point, we note that appellate courts lack jurisdiction to consider
appeals of presumptive sentences under the Kansas Sentencing Guidelines. K.S.A. 2021
Supp. 21-6820(c)(1). But Kansas law recognizes an exception to this limitation when a
defendant claims that his or her sentence is illegal—such as if it "does not conform to the
applicable statutory provision, either in character or punishment." K.S.A. 2021 Supp. 22-
3504(c)(1). A court can correct an illegal sentence at any time. K.S.A. 2021 Supp. 22-
3504(a).
McDaniel claims that his prison sentence, which falls within the presumptive grid
box under the Kansas Sentencing Guidelines, is illegal because the court failed to follow
the mandatory procedures for drug treatment under K.S.A. 2019 Supp. 21-6824. See
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State v. Swazey, 51 Kan. App. 2d 999, 1000-01, 357 P.3d 893 (2015) (A sentence that
fails to comply with drug-treatment statute requirements is illegal and may be challenged
at any time.). This argument hinges on interpreting the language of K.S.A. 2019 Supp.
21-6824, a question we review de novo. See State v. Coleman, 312 Kan. 114, 117, 472
P.3d 85 (2020).
Kansas law permits offenders who meet specific statutory criteria to serve their
sentences in a drug-abuse treatment program instead of prison. K.S.A. 2019 Supp. 21-
6824 (often called Senate Bill 123 treatment). To qualify, a person first must have been
convicted of a felony under K.S.A. 2019 Supp. 21-5705 or K.S.A. 2019 Supp. 21-5706—
for possessing, cultivating, or distributing drugs. K.S.A. 2019 Supp. 21-6824(a). Second,
the person cannot have any previous convictions related to manufacturing, distributing, or
cultivating drugs. K.S.A. 2019 Supp. 21-6824(a).
From here, the requirements diverge depending on what sentencing-grid
classification—the combination of crime severity level and criminal-history score—
applies. People with lower classifications automatically undergo drug-abuse and criminal
risk-need assessments. K.S.A. 2019 Supp. 21-6824(a)(1), (b). If those assessments show
that a person meets Kansas Sentencing Commission criteria for drug treatment, then "the
sentencing court shall commit the offender to treatment in a drug abuse treatment
program." K.S.A. 2019 Supp. 21-6824(c).
Offenders with higher sentencing-grid classifications—5-A, 5-B, and 4-E through
4-I—follow the same general process, but there are extra requirements before they can
undergo the assessments. These offenders can still qualify if:
• "[T]he person felonies in the offender's criminal history were severity level
8, 9 or 10 or nongrid offenses of the sentencing guidelines grid for nondrug
crimes," and
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• "[T]he court finds and sets forth with particularity the reasons for finding
that the safety of the members of the public will not be jeopardized by such
placement in a drug abuse treatment program." K.S.A. 2019 Supp. 21-
6824(a)(2).
Only after meeting these two requirements can offenders with higher classifications
obtain the drug-abuse and criminal risk-need assessments. K.S.A. 2019 Supp. 21-
6824(b). Like the offenders who automatically qualify, if the results of these assessments
meet certain criteria, then the court "shall commit the offender to treatment in a drug
abuse treatment program." K.S.A. 2019 Supp. 21-6824(c).
Regardless of how an offender qualifies for the additional assessments—whether
directly through his or her classification under subsection (a)(1) or by clearing the extra
requirements under (a)(2)—the result is the same: If the results from the assessments
qualify him or her for the program, drug treatment is mandatory. See K.S.A. 2019 Supp.
21-6604(n)(1); State v. Andelt, 289 Kan. 763, 774, 217 P.3d 976 (2009) (analyzing a
previous version of the drug-treatment statute and finding that courts cannot sentence
people who qualify for drug treatment to prison); Swazey, 51 Kan. App. 2d 999, Syl. ¶ 3
(once a person receives the requisite findings under both assessments, "then the
sentencing court is required to commit the offender to treatment in a drug abuse treatment
program").
But even though drug treatment is mandatory for those who qualify, a district
court has inherent discretion to determine whether someone qualifies under subsection
(a)(2)—that is, for offenders with higher grid-box classifications. For offenders in those
circumstances, courts must determine whether placement in drug treatment would
jeopardize public safety. See K.S.A. 2019 Supp. 21-6824(a)(2). And "[p]lacement of
offenders under subsection (a)(2) shall be subject to the departure sentencing statutes of
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the revised Kansas sentencing guidelines act," which further suggests that (a)(2) involves
more discretion. K.S.A. 2019 Supp. 21-6824(e); see Swazey, 51 Kan. App. 2d at 1003-04.
McDaniel never got to the assessment stage of the drug-treatment qualification
process. He had a 5-B classification, which brought him under subsection (a)(2) instead
of automatically qualifying for the assessments under subsection (a)(1). And he met the
initial requirements under subsection (a)(2): He was convicted under K.S.A. 2019 Supp.
21-5706 and had no previous convictions related to drug manufacturing, distribution, or
cultivation. McDaniel's ability to qualify for the assessments—and in turn for mandatory
drug treatment—thus hinged on the two other requirements under subsection (a)(2). He
qualified for neither, however.
McDaniel focuses his argument on the first requirement—that "the person felonies
in the offender's criminal history were severity level 8, 9 or 10 or nongrid offenses."
K.S.A. 2019 Supp. 21-6824(a)(2). He asserts that because the statute uses the plural
"felonies," a person must have previously committed more than one person felony to
subject him to this requirement. Because McDaniel only had one previous person-felony
conviction, he argues he satisfied (a)(2)'s first requirement, regardless of the conviction's
severity level. We disagree.
The most fundamental rule of statutory interpretation is "the intent of the
legislature governs if that intent can be ascertained." Cady v. Schroll, 298 Kan. 731, 738,
317 P.3d 90 (2014). Courts determine intent by looking to the plain and unambiguous
text of a statute, using the words' ordinary meanings, and without speculating or reading
something into a statute that is not there. 298 Kan. at 738-39. If the text is ambiguous,
courts turn to other methods of interpretation, such as canons of construction or
legislative history. 298 Kan. at 739.
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Contrary to McDaniel's assertions, the plain language of K.S.A. 2019 Supp. 21-
6824(a)(2) does not require someone to have more than one person felony to be ineligible
for drug treatment. Rather, it suggests that any person felonies in someone's criminal
history—whether there are one, two, or several—must be severity level 8, 9, or 10 (or
nongrid offenses). Though it is not binding on our review, we note that the Kansas
Sentencing Commission—which sets the assessments-level criteria for treatment
eligibility—concurs with this plain-language reading of the statute. See Kansas
Sentencing Guidelines Desk Reference Manual 82 (2021) (A person can only qualify
under [a][2] if "the offender's prior person felony conviction(s) were severity level 8, 9,
or 10 or nongrid offenses." [Emphasis added.]).
Under this interpretation, a person who has committed only one previous felony
and whose offense falls into one of the listed categories can still qualify for the program
as long as he or she meets the other criteria listed in the statute. And a person who only
has one person felony in his or her criminal history is ineligible if that felony is more
severe than a severity level 8 offense. Any other reading would lead to absurd and
unreasonable results, rewarding someone who commits a serious but isolated offense.
Accord State v. Smith, 311 Kan. 109, 114, 456 P.3d 1004 (2020) (courts construe statutes
to avoid absurd or unreasonable results).
McDaniel was convicted of aggravated domestic battery—a severity level 7
person felony—and thus fails this first requirement. See K.S.A. 2021 Supp. 21-
5414(c)(2) ("Aggravated domestic battery is a severity level 7, person felony."); see also
State v. Griffin, No. 97,604, 2008 WL 2251176, at *3-4 (Kan. App.) (unpublished
opinion) (finding that a single severity level 7 person felony disqualified the defendant
from mandatory drug treatment), rev. denied 286 Kan. 1182 (2008). This conviction
alone disqualifies him from mandatory drug treatment.
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Our analysis could end at this point. We note for purposes of completeness,
however, that even if we were to find McDaniel's interpretation of K.S.A. 2019 Supp. 21-
6824(a)(2) persuasive, his claim of error would fail for another reason: Eligibility for the
drug-treatment program under this section also requires a district court to find that
placement in a treatment program would not jeopardize public safety. See K.S.A. 2019
Supp. 21-6824(a)(2). The district court here considered McDaniel's request but
specifically declined to make that finding, emphasizing McDaniel's repeated domestic-
violence incidents. McDaniel does not challenge this ruling on appeal. But in the absence
of such a finding, the district court was not required to order any assessments to
determine the appropriateness of drug treatment in lieu of a traditional sentence.
Either of these reasons, standing alone, disqualifies McDaniel from Senate Bill
123's mandatory drug-treatment program. The district court did not err when it found
McDaniel did not qualify for this program.
McDaniel's brief mentions other cursory arguments in passing, claiming the
district court erred in denying his motion for a sentencing departure. But because
McDaniel was not eligible for Senate Bill 123 drug treatment, the sentence the district
court imposed was the presumptive sentence under the Kansas Sentencing Guidelines. As
we have noted, we do not have jurisdiction to consider challenges to presumptive
sentences. See K.S.A. 2021 Supp. 21-6820(c)(1); State v. Reed, No. 101,963, 2010 WL
920801, at *3 (Kan. App.) (unpublished opinion) (after determining defendant did not
qualify for drug treatment, declining to review presumptive sentence and dismissing for
lack of jurisdiction), rev. denied 290 Kan. 1102 (2010). Thus, to the extent McDaniel's
appeal raises additional challenges to his sentence, we dismiss them for lack of
jurisdiction.
Affirmed in part and dismissed in part.
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