Opinion
No. 110,451.
2014-10-10
STATE of Kansas, Appellee, v. Husim Arod AVALOS–SANCHEZ, Appellant.
Appeal from Finney District Court; Wendel W. Wurst, Judge.Adam D. Stolte, Kansas Appellate Defender Office, for appellant.Brian R. Sherwood, assistant county attorney, Susan Lynn Hillier–Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Finney District Court; Wendel W. Wurst, Judge.
Adam D. Stolte, Kansas Appellate Defender Office, for appellant. Brian R. Sherwood, assistant county attorney, Susan Lynn Hillier–Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STEGALL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Husim Arod Avalos–Sanchez appeals his 240–day jail sentence after pleading no contest to refusing to submit a breath test. As part of the plea agreement, the State recommended a 180–day jail sentence. Instead, the district court sentenced Avalos–Sanchez to a term of 240 days in jail and a 12–month postrelease supervision period. We find no abuse of judicial discretion and affirm the sentence. This is his fourth alcohol-related case.
This is technically Avalos–Sanchez' fourth alcohol-related incident, but due to the use of prior convictions as an enhancement under K.S.A.2012 Supp. 8–1025(h)(l–7), this incident is listed as his third conviction. But, K.S.A.2012 Supp. 8–1025(b)(l)(D) provides: “Refusing to submit to a test to determine the presence of alcohol or drugs is: ... on a third or subsequent conviction a nonperson felony. The person convicted shall be sentenced to not less than 90 days nor more than one year's imprisonment and fined $2,500.”
Thus, a sentence for a felony refusal to submit a breath test is not imposed under the Kansas Sentencing Guidelines Act. Such sentences are reviewed under preguidelines standards. That is to say, a sentence imposed within the statutory guidelines will be upheld on appeal if it is within the district court's discretion and not a result of partiality, prejudice, oppression, or corrupt motive. An abuse of discretion will only be found when a reviewing court determines that no reasonable person would agree with the district court's decision. State v. McCloud, 257 Kan. 1, 9, 891 P.2d 324, cert. denied 516 U.S. 837(1995).
Avalos–Sanchez argues the longer sentence he received is a result of partiality, prejudice, oppression, or corrupt motive because the district court did not impose the recommended 180–day sentence. We note that a district court is not bound by a plea agreement; the district court can impose a different sentence than what is recommended as part of the plea agreement. See State v. Boley, 279 Kan. 989, 996–97, 113 P.3d 248 (2005). The district court was not bound to impose the 180–day recommended sentence. Additionally, it was within the limits of K.S.A.2012 Supp. 8–1025(b)(l)(D) for the district court to impose the 240–day sentence.
The district court decided to impose the longer sentence due to several factors. It considered that Avalos–Sanchez was involved in a hit-and-run accident, and at the time this incident occurred he was on felony probation for a DUI where his blood alcohol content was greater than .15. Ultimately, the district court held this was a reasonable sentence in this case because Avalos–Sanchez seemed to be a danger to society.
After carefully reviewing the record, we find no evidence of partiality, prejudice, oppression, or corrupt motive. Additionally, we find no evidence of arbitrary or unreasonable judicial action and therefore decline to find the district court abused its discretion when it imposed the 240–day jail sentence.
Affirmed.