State of Kansas, Appellee, v. Jose Garcia Melgarejo, Appellant. (2026)

MEMORANDUM OPINION

Jose Garcia Melgarejo appeals the imposition of lifetime postrelease supervision, and the denial of his request for a continuance at sentencing. On review, we find his sentencing challenge unpreserved and we see no abuse of discretion in the district court's decision denying his request for a continuance. We therefore affirm his sentence.

Factual and Procedural Background

On October 7, 2021, a woman arrived at Lawrence Memorial Hospital and reported that she had been sexually assaulted by a man she met on a dating app. She explained that after the two had exchanged messages, she drove from Wichita to meet him.

When she arrived in town, she got into his car, and they drove around Lawrence and talked. He ultimately brought her to a park, where they then got out of the car and went to picnic table. After talking for a bit, they began kissing, which the woman reported was consensual. But then he tried to get her to perform oral sex and put his hands in her pants, which she said she did not want to do in a park. They returned to his car for a bit where he told her to relax, and shortly after they walked back to the picnic table.

At the picnic table, the woman allowed Melgarejo to put his hands down her pants, which she was “ ‘OK’ ” with. When he again tried to take off her pants, she said, “ ‘No, I don't want to do that here.’ ” They continued to kiss, and she let Melgarejo turn her around and pull her pants down while he continued to kiss her. He had her kneel on the bench, and then he anally penetrated her. She said she was expecting vaginal penetration, and she immediately told him it did not feel good. She then told him to stop more than once, but he said that it felt good and he was going to finish. After he finished, she was crying and told him what he had done hurt her and was not okay. They walked back to his car, and she told him again that what he had done was not okay. He asked if she wanted him to call the police, but she said no because she was scared.

On October 14, 2021, detectives contacted Melgarejo about the incident. He told them that it was a consensual encounter, and both parties knew it was only for sex. He believed that the woman only regretted it afterward because “she was going through depression and felt bad because she ha[d] never done anything like [that] before.” During the investigation, the detectives discovered that Melgarejo had been accused of nearly identical conduct in Overland Park, but charges were declined in that case.

Melgarejo was charged with one count of aggravated criminal sodomy for this incident. Pursuant to a plea agreement, on October 28, 2024, Melgarejo pled guilty to one count of aggravated sexual battery in violation of K.S.A. 21-5505(b)(1) and (c)(2). Melgarejo's age was not an element of the charges to which he pled guilty, however, as part of the plea advisory, Melgarejo signed an acknowledgment of rights and wrote that he was 41 years old at the time he entered the plea.

The State agreed as part of the plea agreement that it would “support borderbox findings” that would, given Melgarejo's anticipated criminal history score of I, permit the district court to impose a probation sentence. Under K.S.A. 21-6804(f) and (q), if a defendant's sentence falls within certain border boxes on the criminal sentencing grid established by the Legislature, a district court may impose probation if it finds on the record:

“(1) An appropriate treatment program exists which is likely to be more effective than the presumptive prison term in reducing the risk of offender recidivism; and

“(2) the recommended treatment program is available and the offender can be admitted to such program within a reasonable period of time; or

“(3) the nonprison sanction will serve community safety interests by promoting offender reformation.” K.S.A. 2021 Supp. 21-6804(q).

The plea advisory and plea hearing mistakenly identified the maximum postrelease sentence possible for aggravated sexual battery as 24 months. Neither mentioned the possibility of lifetime postrelease supervision. At the plea hearing, the district court confirmed Melgarejo's understanding that he “would have to serve 24 months of post-release supervision.” The State and the victim were both agreeable to the recommendation that Melgarejo receive probation.

Three days before sentencing, the presentence investigation (PSI) report issued. It reflected that Melgarejo's age at the time of the offense was 38 and his sentence required lifetime postrelease supervision under K.S.A. 22-3717(d)(1)(G)(i).

At sentencing, the district court reviewed the PSI report with the parties, pointing out that the term of postrelease supervision was lifetime. Melgarejo and his counsel confirmed they had reviewed the report and had no objections or corrections to the report's information. The court asked whether Melgarejo had any evaluations to support the request for probation, but he did not. As a result, the district court found that it did not have any information sufficient to support the border box finding recommended by the plea agreement. Melgarejo then moved for a continuance so he could procure evaluations to support a border box finding. But the State objected, noting the victim did not live in Lawrence and had to get a hotel room for a night to attend the sentencing. It also pointed out that the victim said it was a harrowing week for her leading up to sentencing, so repeating the process seemed cruel. The district court denied the continuance, commenting that sentencing had been set well in advance.

The district court sentenced Melgarejo to 32 months in prison and lifetime postrelease supervision under K.S.A. 22-3717(d)(1)(G)(i). Melgarejo did not object to the imposition of lifetime postrelease supervision at sentencing. And when the court asked if he had any questions about its sentencing orders, Melgarejo said no.

Review of Melgarejo’s Appellate Challenges

Did the district court err in imposing lifetime postrelease supervision?

To begin, Melgarejo asserts that the district court violated his rights by imposing lifetime postrelease supervision without evidence to demonstrate that he was over 18 years old at the time of the crime. The State counters that the issue is unpreserved due to Melgarejo's failure to object below, though even if preserved, any error is harmless because there is nothing that could rationally lead to the conclusion that he was not 18 or older at the time of the crime.

Melgarejo's claim is unpreserved.

Melgarejo acknowledges that he did not object to the imposition of lifetime postrelease supervision below. We generally do not consider issues raised for the first time on appeal. State v. Allen, 314 Kan. 280, 283, 497 P.3d 566 (2021). Even constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Holley, 315 Kan. 512, 524, 509 P.3d 542 (2022). However, Melgarejo notes that there are exceptions to this rule:

“[A]n appellate court may review the merits of a constitutional error claim raised for the first time on appeal when: (1) the claim presents a purely legal question arising on undisputed facts and is finally determinative of the case; or (2) it is necessary to review the claim to prevent the denial of fundamental rights. State v. Gonzalez, 311 Kan. 281, 295[, 460 P.3d 348] (2020).”

Melgarejo argues that both exceptions apply to his case. The State does not dispute this, however, it emphasizes that even if an exception applies, “the decision to review an unpreserved claim under an exception is a prudential one.” Holley, 315 Kan. at 524. In addition, the trend of this court has been to deny prudential review of Apprendi claims, noting:

“Even though the Supreme Court has addressed Apprendi challenges to lifetime postrelease supervision terms based on the offender's age for the first time on appeal, the Supreme Court has repeatedly and more recently stressed that Kansas appellate courts generally do not address legal theories raised for the first time on appeal, even those of a constitutional dimension. And even if a recognized exception to this general rule may apply, we are under no obligation to review the new claim and we need to provide no reason for the denial.

“There is good reason for this rule. Appellate courts are designed to review decisions made by the trial courts, not to serve as forums for introducing new arguments or evidence. This principle ensures that trial courts have the first opportunity to address and resolve issues, promotes judicial efficiency, and prevents unfair surprises to the opposing party.

“We elect not to consider [the defendant's] newly minted appellate challenge to his sentence. Although we are under no obligation to provide a reason for our finding, the burden to convince us we should hear his new claim is on [the defendant]. Yet he presents no explanation regarding his failure to raise this issue before the district court except to acknowledge that he failed to do so. If the failure was due to his attorney's failure to inform him of a constitutional right, he could pursue his claim under K.S.A. 60-1507. If having been advised of this right for a jury determination of his age would have caused him to reject the plea agreement, he could move to withdraw his plea under K.S.A. 22-3210(d)(2). In other words, we find it significant that there are other avenues available to pursue his claimed denial of a constitutional right which would give the district court and the State a full opportunity to address his concerns.

“Finally, Apprendi claims related to sentence enhancements have been widely litigated in Kansas. This would not have been a novel claim to make before the trial court. In fact, the exact claim made here by [the defendant] has been ruled upon by our appellate courts multiple times. Simply allowing any party to raise new issues on appeal with no explanation for their failure to do so before the trial court or their failure to establish the lack of any other available remedy will allow the exceptions to overcome the rule. If exceptions are routinely invoked, the rule becomes meaningless and its goals elusive. [Citations omitted.]” State v. Jelinek, 66 Kan. App. 2d 158, 163-64, 577 P.3d 662 (2025) (discussing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 [2000]).

In fact, the only appellate case which considered an unpreserved Apprendi challenge since Jelinek was State v. Contreras, 66 Kan. App. 2d 182, 185, 579 P.3d 1278 (2025), rev'd 322 Kan. ___, 2026 WL 2671971 (2026). But that panel of this court accepted review because the main case used to support these Apprendi challenges, State v. Nunez, 319 Kan. 351, 354, 554 P.3d 656 (2024), came down after Contreras’ sentencing and the district court did not pronounce any term from the bench. Contreras, 66 Kan. App. 2d at 183-84.

Here, the Nunez decision came down four months before Melgarejo's sentencing, and the lifetime postrelease supervision term was announced at sentencing.

In his reply brief, Melgarejo states that “there wasn't any reason for [his] attorney not to object to this case's unconstitutional sentence” therefore his “attorney appears to have performed ineffectively.” But this argument was answered by the reasoning provided in State v. Bednarz, No. 126,821, 2025 WL 2265714, at *3 (Kan. App. 2025) (unpublished opinion), petition for rev. filed September 5, 2025. There, we pointed out that if the failure to raise the issue below was the fault of the attorney, then the defendant could pursue a claim under K.S.A. 60-1507. And if having been advised of this right for a jury determination of his age would have caused the defendant to reject the plea agreement, he could move to withdraw his plea under K.S.A. 22-3210(d)(2). 2025 WL 2265714, at *3.

Melgarejo has the same options that Bednarz did. If his failure to object to his sentence before the district court was based on his attorney's deficient representation, he can pursue a claim under K.S.A. 60-1507. And if having been advised at his plea hearing that he was subject to lifetime postrelease supervision and had a right for a jury determination of his age would have caused him to reject the plea agreement, he can move to withdraw his plea under K.S.A. 22-3210(d)(2).

For these reasons, we decline to consider Melgarejo's newly raised sentencing challenge on appeal.

Alternatively, Melgarejo attempts to recast his constitutional sentencing challenge as an illegal sentence claim. And he points out this court's review of illegal sentences is not discretionary. K.S.A. 22-3504(a) provides that an illegal sentence may be corrected “at any time while the defendant is serving such sentence.” Yet our Supreme Court has repeatedly held that K.S.A. 22-3504(a) does not cover a claim that a sentence violates a constitutional provision. State v. Sanders, 65 Kan. App. 2d 236, 252, 563 P.3d 234, review denied 320 Kan. 867 (2025). As in Sanders, any arguments Melgarejo makes regarding the term of his postrelease supervision term being extended based on improper judicial factfinding is unpreserved. 65 Kan. App. 2d at 253.

For all these reasons, we find Melgarejo has not preserved the challenge to the constitutionality of his sentence for appellate review, and we affirm his sentence.

Did the district court abuse its discretion by denying Melgarejo's request for a continuance?

Melgarejo next challenges the district court's denial of his motion to continue the sentencing hearing to permit him to obtain evaluations in support of his dispositional departure request. He contends the district court abused its discretion when denying this request because it ought to have recognized his counsel's representation was ineffective in not procuring the evaluations, which he asserts ultimately caused the district court to sentence him to prison time. The State counters that his challenge is improper and he is simply attempting to give himself “another shot at convincing the district court ‘to make the border box findings anticipated by this case's plea agreement.’ ”

Jurisdiction

At the outset, the State contends we have no jurisdiction over Melgarejo's claim since he received a presumptive prison sentence under a lawful plea agreement. When a district court imposes a sentence that is within the presumptive sentence range for a crime, this court generally lacks jurisdiction to consider the sentence on appeal. K.S.A. 21-6820(c)(1).

But the problem with the State's argument is Melgarejo is not appealing the district court's decision to impose a presumptive, border box, or agreed-upon sentence—he is appealing the district court's decision on his motion for a continuance. As such, we have jurisdiction over his claim. And, as Melgarejo points out, Kansas appellate courts have previously reviewed claims that a district court has erred by denying a continuance of a sentencing hearing that, ultimately, resulted in the imposition of a presumptive sentence. See, e.g., State v. Haney, 299 Kan. 256, 259-62, 323 P.3d 164 (2014); State v. Droge, No. 127,884, 2025 WL 3250897, at *3-6 (Kan. App. 2025) (unpublished opinion), rev. denied 322 Kan. ___ (2026).

Preservation

The State next contends Melgarejo's claim is based on a new legal theory—ineffective assistance of counsel—which is unpreserved. But Melgarejo claims he is not raising an ineffective assistance of claim—he is arguing the district court abused its discretion by not granting the continuance to protect Melgarejo's constitutional right to effective counsel.

Yet Melgarejo did not argue before the district court that his counsel at sentencing was ineffective. He raises this issue for the first time on appeal. “Claims of ineffective assistance of counsel, as a general rule, cannot be raised for the first time on appeal. Rather, in most cases a district court must consider the evidence to determine the two-prong test for establishing ineffective assistance of counsel.” Trotter v. State, 288 Kan. 112, Syl. ¶ 10, 200 P.3d 1236 (2009). The district court is best equipped to deal with the analysis required for such claims because it observed counsel's performance and competence first-hand, and an appellate court only considers a claim of ineffective assistance for the first time on appeal if: (1) There are no factual issues in dispute, and (2) the test for ineffective assistance of counsel can be resolved as a matter of law based on the record. State v. Salary, 309 Kan. 479, 483-84, 437 P.3d 953 (2019). It is rare when the acts of counsel are not in dispute and so clearly reflected in the record that remand would serve no real purpose. State v. Carter, 270 Kan. 426, 433, 14 P.3d 1138 (2000).

Melgarejo asserts that his counsel's actions at sentencing clearly demonstrate ineffective assistance because she presented no evidence in support of the findings required by K.S.A. 2021 Supp. 21-6804(q). Thus, as a matter of law based on the record, he says his counsel was ineffective. However, as the State points out, counsel's decision not to present evaluations at sentencing may have been strategic. As such, further factual findings would likely be necessary to determine whether his counsel's performance fell below the requisite standard.

In his reply brief, Melgarejo asserts that his counsel's failure to proffer evidence meant the district court could not have lawfully imposed the probation sentence anticipated by the plea agreement. While K.S.A. 2021 Supp. 21-6804(q)(1) and (2) have specific requirements to show treatment options and availability, K.S.A. 2021 Supp. 21-6804(q)(3) is an “or” option which does not require specific findings on available treatment programs. Instead, it merely requires that the nonprison sanction will serve community safety interests by promoting offender reformation.

Thus, Melgarejo's criminal history as demonstrated by his PSI report, his cooperation throughout the legal process, his willingness to enter a plea and avoid further trauma to the victim, and the prospect of future evaluations per the probation office's request were all “evidence” presented in support of the request for the dispositional departure and potential for offender reformation. The district court's denial of the dispositional departure based on lack of evaluations is rather a decision by the district court that the facts of this case needed more to justify the departure in its eyes, and whether it constituted deficient performance by counsel to forgo evaluations is something that would require more information.

An appellate court may remand the ineffectiveness claim for an evidentiary Van Cleave hearing. In re D.J., 321 Kan. 75, 87-88, 573 P.3d 255 (2025); see State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986). But the “ ‘usual course’ ” for that procedure requires “ ‘a request by appellate counsel.’ ” In re D.J., 321 Kan. at 87. So, when counsel makes no such request, this court does not need to order a remand for such hearing sua sponte. 321 Kan. at 87. If neither review nor remand is appropriate, then this court must “decline review of [the] claim.” 321 Kan. at 88.

Accordingly, we find Melgarejo's argument that he should be resentenced because his counsel was ineffective was also unpreserved. And, again, like his Apprendi challenge, Melgarejo is able to pursue this ineffectiveness claim through a K.S.A. 60-1507 motion.

The district court did not abuse its discretion in denying the motion for a continuance.

Melgarejo claims that the district court was unreasonable in denying his request for a continuance. Melgarejo moved for a continuance at sentencing to gather evaluations to support his request for a dispositional departure, but the district court denied the request on the basis that sentencing had been scheduled for over a month at that point.

Standard of Review

A district court may grant a continuance to either party for good cause shown. K.S.A. 22-3401. In a criminal case, the decision to continue a case lies within the sound discretion of the district court. State v. Cook, 281 Kan. 961, 986, 135 P.3d 1147 (2006). We review the decision to deny a continuance for abuse of discretion. State v. Gentry, 310 Kan. 715, 734, 449 P.3d 429 (2019). A district court abuses its discretion when (1) no reasonable person would take the view adopted by the district court; (2) a ruling is based on an error of law; or (3) a ruling is based on an error of fact. 310 Kan. at 734. Whether the district court has interfered with a defendant's right to present his defense is reviewed de novo. State v. Lewis, 299 Kan. 828, 846, 326 P.3d 387 (2014).

The district court did not act unreasonably.

As explained, Melgarejo unpersuasively grounds his argument in his contention that the district court should have noticed his attorney's representation was ineffective and sua sponte granted a continuance on that basis. Additionally, he does not address the reason the State objected to his request or the reason the district court stated in support of its decision.

Our Supreme Court addressed a motion to continue a sentencing to allow for time to obtain evaluations in Haney, 299 Kan. at 261. There, the court found it an abuse of discretion to deny a motion to continue sentencing to permit the defendant to obtain evidence to present in mitigation of his punishment. However, this came after several difficulties in completing evaluations before sentencing, which Haney kept the district court informed of. 299 Kan. at 257. For example, at the plea hearing, Haney requested that the district court approve funding for an evaluation, which the district court directed Haney to organize through BIDS. 299 Kan. at 257.

Then before sentencing, Haney requested a continuance, claiming that he was still waiting for funding approval by BIDS to get the necessary evaluations. After the funding was approved, it would take two weeks to get on the expert's evaluation schedule, and another 10 days for the report to be completed; Haney thus requested a month continuance. 299 Kan. 257-58. The district court denied the request, finding that the evaluation would only be relevant if he obtained probation, which was impossible in his case and that the defendant's testimony alone would be comparable. 299 Kan. at 258. On review, the reasons given by the district court were found to be erroneous and unavailing. 299 Kan. at 260.

Unlike Haney, the district court here did not deny the request for a continuance based on an improper legal conclusion such as the evaluation only being relevant in instances where a defendant could get probation or factual error in concluding that the “defendant's own testimony, coupled with the court's astute ocular observation, was an adequate substitute for an expert's evaluation and testimony.” 299 Kan. at 261. Instead, the district court denied the request because there was ample time to gather evaluations before sentencing, which the defense did not do.

The district court here, however, did not appear to directly deny Melgarejo the opportunity to obtain evidence in the same sense as Haney. Instead, the court explained that Melgarejo had plenty of time to get the evaluations and did not, having no plan to do so but for finding out that the district court wanted this information at sentencing. Further, as the State pointed out at sentencing, the victim had traveled to attend sentencing and was forced to incur the cost of a hotel. She also described her week leading up to the sentencing as “harrowing.” The State argued that continuing the sentencing to require her to incur that financial and mental expense again was cruel. We agree and find these reasons reinforce the reasonableness of the district court's decision.

Affirmed.

I respectfully concur. Because whether lifetime postrelease supervision was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), relates to Jose Garcia Melgarejo's liberty interests, I would consider the issue for the first time on appeal to prevent the denial of fundamental rights.

On appeal, Melgarejo challenges his lifetime postrelease supervision imposed in connection with his aggravated sexual battery conviction. He asserts that, although he “waived his constitutional right to a jury trial on the State's base aggravated sexual battery charge[,] ․ [he] never waived his right to a jury trial on the matter of his age at the time of a charged offense.”

Recently, the Kansas Supreme Court issued State v. Contreras, 322 Kan. ___, 2026 WL 2671971, at *7 (2026), which reaffirmed what is a “ ‘knowing’ waiver.” There, Contreras also challenged his lifetime postrelease supervision in light of Apprendi. Citing State v. Nunez, 319 Kan. 351, 354, 554 P.3d 656 (2024), Contreras argued that, when he waived his jury trial, he had not made a knowing waiver as it relates to his age at the time of the charged offense. See K.S.A. 22-3717(d)(1)(G)(i) (“[P]ersons sentenced to imprisonment for a sexually violent crime ․ when the offender was 18 years of age or older, and who are released from prison, shall be released to a mandatory period of postrelease supervision ․”). Reviewing prior case law, the Contreras court stated: “Ultimately the question regarding a ‘knowing’ waiver is ‘whether the waiver was voluntarily made by a defendant who knew and understood what he [or she] was doing.’ Irving, 216 Kan. at 589.” 2026 WL 2671971, at *7; see State v. Bentley, 317 Kan. 222, 230, 526 P.3d 1060 (2023); State v. Redick, 307 Kan. 797, 804-05, 414 P.3d 1207 (2018).

Here, in the plea advisory document signed two years after the charged offense, Melgarejo stated that he was 18 years of age or older. Specifically, the plea advisory signed by Melgarejo states: “I am 41 years of age.” At the plea hearing, the district court took a short recess for Melgarejo and his attorney to review and execute the plea advisory before Melgarejo entered his plea. Both Melgarejo and his attorney signed the document, which the judge notarized. The plea advisory, moreover, states: “This document will be made part of your court file.”

In light of the above, Melgarejo knew that he was waiving any contest of his age by signing the plea advisory, which was now part of the court file. Although the complaint and the plea hearing indicate a shorter postrelease supervision period, Melgarejo knew that he waived any issue as it related to his age, namely that he was 18 years or older at the time of the offense. Accordingly, Melgarejo made a knowing waiver as it relates to his age, and thus there was no Apprendi violation. On this issue, I would affirm.

Cline, J.: