State of Kansas, Appellee, v. Donald K. Martin, Appellant. (2026)

MEMORANDUM OPINION

After pleading guilty to one count of aggravated violation of the Kansas Offender Registration Act, the district court sentenced Donald K. Martin consistent with the plea agreement. Martin appeals his sentence, arguing the district court erred by declining to award him jail credit after finding Martin already received credit in another case. Martin also maintains the court abused its discretion by not granting him a greater durational departure from the presumptive sentence.

Under the Kansas Supreme Court precedent, the district court erred by failing to award Martin jail credit in this case, but Martin has failed to show that the district court abused its discretion in not granting him a greater durational departure. Martin's sentence is affirmed in part, vacated in part, and this matter is remanded with instructions to award Martin jail credit in this case.

Factual and Procedural Background

As a result of a prior conviction, Martin began registering as an offender under the Kansas Offender Registration Act (KORA) in May 2013. He was required to register for 15 years. In May 2022, the State charged Martin with two counts of aggravated offender registration violation for failing to report in person for more than 180 consecutive days. When the State filed the charges in this case, Martin had a prior conviction for offender registration violation in a separate 2019 case for which he had not yet been sentenced.

On June 28, 2023, pursuant to a plea agreement encompassing this case and his 2019 case, Martin entered a guilty plea to one count of aggravated offender registration violation in this case. In exchange, the State agreed to “dismiss all remaining counts,” recommend the low number in the sentencing guidelines grid box in Martin's 2019 case, recommend a durational departure to 144 months in prison in this case, and recommend that the sentences in the two cases run consecutive. The substantial and compelling reasons upon which the State agreed to recommend the durational departure were Martin's willingness to serve a significant prison sentence, his acceptance of responsibility, and because the harm Martin caused from the KORA registration violation was less than typical.

At the same hearing where Martin entered his guilty plea, the district court sentenced Martin in the 2019 case to 37 months in prison and awarded him 699 days of jail credit. Before sentencing in this case, Martin filed a motion for a durational departure. Martin argued that several mitigating factors constituted substantial and compelling reasons for the district court to grant a departure: (1) Martin had a “very serious drug addiction ․ that made it hard for him to register;” (2) he pled guilty “to take responsibility” for his crime, “sav[ing] time and resources for the court” in doing so; (3) his charge dealt “with harm less than typical for a level 3 person felony,” since he did not cause harm to anyone but merely failed to register; (4) he did not pick up any other felonies; and (5) he was a father to a seven-year-old son, whom he wanted to continue to raise and be involved with “more than just from [a] prison cell.”

During sentencing, Martin admitted to a criminal history score of A. The parties asked the district court to follow the recommendations in the plea agreement, which included the durational departure to 144 months in prison. However, Martin argued for a larger durational departure but did not specify the amount other than arguing that he should get a more substantial departure than what the plea agreement recommended. Martin did not assert any new reasons to justify a larger departure than those contained in his motion. The State opposed a durational departure resulting in a sentence of less than 144 months imprisonment.

The district court noted that the presumptive sentencing range for the aggravated KORA registration violation was 221 to 247 months in prison. The district court found the State's recommendation in the plea agreement was reasonable, denying Martin's request for a greater departure: “I appreciate you appear to have come to your senses on this. But it is too little too late. I mean, you've racked up a lot of criminal behavior in not a lot of time, and I think that the 144 months is an appropriate disposition.”

The district court sentenced Martin to 144 months in prison, departing from the presumptive sentence “based on the reasons stated in the plea agreement.” The district court ordered Martin to serve the sentence consecutive to all other cases. In the journal entry of sentencing, the district court cited the following reasons for granting the departure: “Drug addiction present at time of offense;” “Defendant taking responsibility by pleading guilty;” “Charge deals with harm less than typical;” “Involvement in his son's life;” “Agreement of the parties.” The court cited additional reasons—found in Martin's departure motion—in the journal entry that it did not announce at sentencing: Martin's drug addiction and his involvement in his son's life.

Regarding the jail credit calculation, the State explained that if the sentences in the two cases were run consecutive, “then [Martin] would not have jail credit in” this case, but if the sentences were run concurrent, “it would be 373 days.” The court found it could not run the sentences concurrent based on “Special Rule 9.” Martin did not object to the calculation of zero days of credit in this case.

The district court's journal entry of sentencing states that Martin was in custody for 268 days from May 2, 2022—the day before the State filed charges in this case—until January 24, 2023. Martin was in custody for another 105 days between May 4, 2023, and the sentencing hearing on August 17, 2023. During the second stretch—on June 28, 2023—Martin entered his plea and was convicted of the charges in this case and sentenced in his 2019 case. Altogether, the journal entry calculated that Martin would have received 373 days of jail credit towards this case, but the district court awarded zero days of jail credit, noting that Martin was “also held on” his 2019 case.

Martin now appeals.

Discussion

Martin raises two claims of error on appeal: first, that the district court erred by failing to award him jail credit for time he spent in custody pending disposition of this case; and second, that the court abused its discretion by denying his request for a more substantial departure from his presumptive prison sentence.

I. The District Court Erred by Denying Jail Credit

On appeal, Martin argues that the district court erred when it failed to award him 373 days of jail credit in this case after finding that Martin was also in custody for his 2019 case at the same time. Martin claims that under the then-applicable Kansas Supreme Court precedent and K.S.A. 2021 Supp. 21-6615(a), the court was required to award him jail credit against his sentence in this case for all the time he spent in custody “pending disposition” of the case, regardless of whether credit for those days was awarded in another case. State v. Hopkins, 317 Kan. 652, 659, 537 P.3d 845 (2023). Martin did not raise this jail credit challenge to the district court.

Generally, an issue must be first raised at the district court to preserve the issue for appeal. State v. Green, 315 Kan. 178, 182, 505 P.3d 377 (2022). There are several recognized exceptions to this rule, and Martin contends that two of those exceptions permit this court's review of his unpreserved claim. First, Martin contends that the issue involves only a question of law on admitted facts and second, that the issue requires resolution to prevent the denial of a fundamental right. See State v. Rhoiney, 314 Kan. 497, 500, 501 P.3d 368 (2021) (recognizing exceptions). Even if these exceptions apply, this court's review remains prudential, meaning it may decline review notwithstanding an applicable exception. State v. Mendez, 319 Kan. 718, 730, 559 P.3d 792 (2024). In its brief, the State takes no position on Martin's preservation argument.

There are no disputed facts here, only a dispute on the legal effect of those facts. In challenging Martin's claim for jail credit, the State only argues that recent Kansas Supreme Court caselaw regarding jail credit supporting Martin's argument was wrongly decided, which of course Martin contests. See State v. Ervin, 320 Kan. 287, Syl. ¶ 12, 566 P.3d 481 (2025) (explaining that jail credit counts toward all pending dispositions). Given that Martin's cited exceptions are applicable and the Kansas Supreme Court has recently considered jail credit issues for the first time on appeal when there are no disputed facts, this court finds no reason to deviate from that path. See State v. Zongker, 322 Kan. 137, 139, 586 P.3d 769 (2026); Ervin, 320 Kan. at 306.

Resolution of Martin's claim requires interpretation of K.S.A. 2021 Supp. 21-6615, which governs jail credit, and this court exercises unlimited review over statutory interpretation. State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024). Martin relies on the Kansas Supreme Court's ruling in Hopkins to argue he was entitled to jail credit. The day after Martin filed his brief on appeal, the court decided Ervin, which the State and Martin addressed in later briefing. Notably, the court clarified that Hopkins was the change in the law and Ervin merely “applied existing caselaw to a different scenario.” State v. Romey, 321 Kan. 400, 405, 580 P.3d 1 (2025).

In Ervin, the court interpreted K.S.A. 21-6615(a) to require the judge to compute a defendant's sentence of imprisonment to reflect “an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant's case.” 320 Kan. at 307. According to the Supreme Court, this meant that Ervin was “entitled to a credit for ․ all days he was held, even though he was also held on charges in an unrelated case and received credit on his sentence in that unrelated case.” Ervin, 320 Kan. at 308. The Ervin court noted that Hopkins “did not limit the holding to sentences involving single cases or concurrent sentences.” 320 Kan. at 308. Ultimately, the Supreme Court agreed with Ervin and held: “K.S.A. 21-6615 required a district court ․ to award one day of credit for each day that Ervin was incarcerated pending disposition of this case regardless of whether he received an allowance for some or all that time against a sentence in another case.” 320 Kan. at 311-12.

Martin's KORA violation occurred in July 2021, and “[t]he court sentences a person convicted of a crime in accordance with the sentencing provisions in effect when the person committed the crime.” State v. Juiliano, 315 Kan. 76, 80, 504 P.3d 399 (2022). The version of K.S.A. 21-6615 in effect in July 2021 was substantively the same as that construed by the Kansas Supreme Court in Ervin. Under the court's interpretation of K.S.A. 21-6615(a) in Ervin, a district court must award jail credit for all the time the defendant spent in custody pending the disposition of their case, even if they also received credit for some or all of that time against a sentence in another case. 320 Kan. at 311-12. In its brief, the State argues that Ervin was wrongly decided, but it recognizes this court's obligation to follow Kansas Supreme Court precedent. See State v. Patton, 315 Kan. 1, 16, 503 P.3d 1022 (2022) (The Kansas Court of Appeals is duty bound to follow Kansas Supreme Court precedent unless there is some indication that the Supreme Court is departing from its previous position.).

The district court assigned no jail credit in this case, reasoning that Martin was also in custody in his 2019 case. Based on the rulings in Hopkins and Ervin, the district court erred in declining to award Martin jail credit in this case. Therefore, that part of Martin's sentence is vacated, and the district court is instructed to file an amended journal entry of judgment reflecting the correct jail credit.

II. No Abuse of Discretion in the Departure Sentence

Despite receiving a durational departure from his presumptive sentence, Martin argues that the district court erred when it denied his request for a more substantial departure. This court has jurisdiction to consider Martin's claim. See K.S.A. 21-6820(a) (departure sentences are subject to appeal); State v. Ibarra, 307 Kan. 431, 433, 411 P.3d 318 (2018) (appellate courts have jurisdiction to review departure sentences even if the appeal is taken by a party receiving a durational departure).

This court reviews a district court's decision to grant a departure sentence for an abuse of discretion. See State v. Morley, 312 Kan. 702, 711, 479 P.3d 928 (2021). Judicial discretion is abused when the court action is arbitrary, fanciful, or unreasonable or based on an error of law or fact. As the party alleging the abuse of discretion, Martin bears the burden to establish such abuse occurred. State v. Bilbrey, 317 Kan. 57, 63, 523 P.3d 1078 (2023).

K.S.A. 21-6815(a) allows a district court to depart from the presumptive sentence if it finds substantial and compelling reasons support the departure. The statute provides a nonexclusive list of mitigating factors that a court may consider in determining whether to depart. See K.S.A. 21-6815(c)(1). A substantial and compelling reason to depart from a presumptive sentence is a reason that is “real, not imagined, and of substance, not ephemeral” and which “forces a court—by the case's facts—to abandon the status quo and venture beyond the presumptive sentence.” Morley, 312 Kan. 702, Syl. ¶¶ 3-4.

The district court noted that the presumptive sentencing range for Martin's aggravated offender registration violation was 221 to 247 months in prison. The district court sentenced Martin to 144 months in prison, stating that its durational departure from the presumptive sentence was “based on the reasons stated in the plea agreement,” which included Martin's willingness to serve a significant prison sentence; Martin's acceptance of responsibility; and because the harm was less than typical. In the journal entry of sentencing the court cited additional reasons—found in Martin's departure motion—that it did not announce at sentencing: Martin's drug addiction and Martin's involvement in his son's life.

Martin argues that the penalty for his registration violation crime is too severe, especially considering the maximum prison term was far less for the criminal conviction for which he was required to register. Though Martin discusses policy arguments against such lengthy sentences in KORA noncompliance cases, Martin contends his argument is that the district court's decision to sentence him to 144 months was “unreasonable, arbitrary, contrary to the law, and contrary to the facts.” Yet Martin provides no argument that the court ruled based on an error of law or fact. Martin merely disagrees with the court's application of the facts.

Martin asserts that the 144-month sentence was unreasonable and arbitrary because his KORA offense involved no violence, no harm, and no victim—and the State acknowledged that the harm in this case was “less than typical.” The parties appear to disagree about the factors the district court considered in determining whether and how much to depart from the presumptive sentence. The State argues that the court granted the durational departure to 144 months based on the three factors outlined in the plea agreement: Martin's acceptance of responsibility, the less than typical harm caused by his actions, and his willingness to serve a significant prison sentence. Martin, however, believes the district court relied on additional factors articulated in his departure motion and argued at the sentencing hearing. Martin argues in his brief that one of the substantial and compelling factors adopted by the court was Martin's “ ‘involvement in his son's life,’ ” which Martin believes is inconsistent with the 144-month sentence considering he will be in prison until his son is an adult.

The parties’ disagreement stems from the district court's failure to plainly state the reasons for granting the departure sentence, referring to the “reasons stated in the plea agreement.” A sentencing court must do more than allude to factors set out in a departure motion to properly state its reasons for granting a departure. See K.S.A. 21-6815(a) (“the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.”); State v. Whitesell, 270 Kan. 259, 293-94, 13 P.3d 887 (2000). In Whitesell, the Kansas Supreme Court held that merely referencing the motion filed by the State did not satisfy the statutory requirements to state the reasons for the departure and reversed the district court's departure decision on that basis. 270 Kan. at 294.

Martin does not contend the district court failed to adequately articulate the reasons for the departure, and this court will not create arguments for litigants. See City of Wichita v. Trotter, 316 Kan. 310, 323, 514 P.3d 1050 (2022) (“It is not the role of the appellate court to second-guess the matters which the prosecutor chooses to appeal—or to waive through absence of briefing—based on the appellate court's own instincts about the ends of justice.”). Moreover, the record is replete with substantial and compelling reasons justifying the district court's decision to grant Martin a substantial durational departure from the presumptive sentence. See State v. Shull, 52 Kan. App. 2d 981, 990-93, 381 P.3d 499 (2016) (upholding when the record contains substantial and compelling reasons and remand would be futile). The district court referred to the reasons in the plea agreement, which provided three substantial and compelling reasons for a departure sentence: Martin's willingness to serve a significant prison sentence, his acceptance of responsibility, and because the harm Martin caused was less than typical. Despite the district court's reference to other factors in the journal entry—these are the only factors before this court for consideration. See State v. Johnson, 320 Kan. 246, 248, 564 P.3d 782 (2025) (the sentence pronounced from the bench is the controlling sentence).

Essentially Martin argues that a 12-year imprisonment for a KORA registration violation where he would only face 30 to 34 months of imprisonment for the crime underlying his registration is wholly unreasonable and arbitrary as to constitute an abuse of the district court's discretion. Unfortunately for Martin, the lengthy presumptive sentence was not the result of the district court's discretion. The Legislature holds the role of determining punishment for criminal activity, and although the Kansas Supreme Court has determined that KORA registration is “civil and nonpunitive,” there are criminal sentences for its violations. See State v. Meredith, 306 Kan. 906, Syl. ¶ 1, 399 P.3d 859 (2017) (finding KORA a civil remedy for “all classes of offenders”); State v. Latham, 190 Kan. 411, 422, 375 P.2d 788 (1962) (“[T]he sole power to provide for punishment of offenders belongs to the legislature. It alone has the power to define offenses and affix punishment.”).

The district court has discretion to depart from presumptive sentences for substantial and compelling reasons. Here, the presumptive sentence was so high that even with substantial and compelling reasons justifying a durational departure, this court cannot say the departure granted was so unreasonable or arbitrary that no other person would agree with the district court that it was sufficient. Absent a clear abuse of discretion through an error of law or fact, or an unreasonable or arbitrary decision, this court cannot usurp lower courts’ discretion or the Legislature's intent. See State v. Mishmash, 295 Kan. 1140, 1143, 290 P.3d 243 (2012) (“[C]ourts are obliged to take the legislature at its word ․ because the legislature ․ is ․ charged with developing public policy on behalf of the electorate and because judicial deference to clear statutory language promotes long-term predictability and stability in Kansas law.”).

Here, the district court used its discretion to grant Martin a departure based on the parties’ agreement. While, under the circumstances the district court could have reasonably granted a further departure, that alone does not constitute an abuse of discretion. Martin failed to establish the district court abused its discretion by not granting a more significant durational departure.

CONCLUSION

According to Kansas Supreme Court precedent, Martin is entitled to additional jail credit for the time he spent in custody while this case was pending despite also receiving credit for that time in another case. Thus, the district court erred in awarding Martin zero jail credit in this case. That part of his sentence is vacated, and this matter is remanded for the district court to file an amended journal entry reflecting the proper award of jail credit. However, Martin fails to establish that the district court abused its discretion in granting him a departure from his presumptive sentence, and that part of his sentence is affirmed.

Affirmed in part, sentence vacated in part, and case remanded with directions.

Per Curiam: