Opinion
No. 108,124.
2013-11-1
STATE of Kansas, Appellee, v. Ryan Lee HEIM, Appellant.
Appeal from Finney District Court; Robert J. Frederick, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before LEBEN, P.J., BUSER and ATCHESON, JJ.
MEMORANDUM OPINION
LEBEN, J.
In 2012, Ryan Lee Heim pled guilty to two counts of aggravated battery and one count of DUI-charges that arose after a car accident in which Heim had been driving under the influence and had struck an SUV. Heim was in the border-box sentencing range for these offenses, so he could have been given either probation or a prison sentence. Before sentencing, Heim filed a motion asking for probation. After hearing statements from the victims, recommendations from the State, and arguments from Heim that he should be given an option at probation and alcohol treatment, the district court sentenced Heim to a controlling 72–month prison sentence.
Heim appeals, arguing that the district court abused its discretion in failing to make a finding that a treatment program existed, in denying Heim's request for probation, and in imposing a concurrent 12–month jail sentence for the DUI charge. Heim also argues that the court abused its discretion in using his criminal-history score to influence sentencing and in giving him the aggravated sentences for all three counts, without his prior convictions or any aggravating factors having been proven to a jury.
Factual and Procedural Background
In October 2011, Heim was charged with five counts of aggravated battery, one count of DUI, and several other offenses stemming from a car accident in Garden City in November 2010. Heim had been driving a car that collided with an SUV, and a blood test taken at the hospital after the accident showed that Heim's blood-alcohol content was .24, three times the legal limit of .08. All four people in the SUV Heim collided with were injured.
In a plea agreement with the State, Heim agreed to plead no contest to two counts of aggravated battery and one count of felony DUI. In exchange, the State agreed to dismiss the other charges and to recommend that the DUI sentence run concurrently with the other sentences. In February 2012, Heim pled no contest to the three offenses.
A presentence-investigation report revealed that Heim had a criminal-history score of H (one score higher than the lowest possible score of I), putting him in a “border box” for the aggravated—battery offenses—so the sentencing judge was free to give Heim either probation or a prison sentence, depending on the judge's findings. The report also documented Heim's two previous DUI convictions, one in 2002 and one in 2011. Heim filed a motion asking for a nonprison sentence, arguing that the best option to prevent future offenses would be to place Heim in a treatment program and to allow him to continue working.
At the sentencing hearing, the State asked the district court to give Heim the aggravated prison sentences for both aggravated-battery charges and to run the DUI jail sentence concurrently with the prison sentences. In support of its recommendation, the State cited Heim's blood-alcohol content at the time of the accident, the speed Heim had been driving (over 100 miles per hour before the crash), and the injuries suffered by everyone in the SUV. The State also noted that this was Heim's third DUI conviction. The driver and passengers of the SUV each testified about the continuing impact of the accident on their lives.
Heim countered that he had been offered a spot in an inpatient-treatment program, which would allow him to get help with his drinking problem and would be the best option in preventing him from reoffending. Heim presented testimony from Jannifer Boucher, a DUI-treatment provider who had evaluated Heim after his arrest. Boucher recommended that Heim complete inpatient treatment, and she said there was a place available for him at a residential-treatment facility in Dodge City.
After hearing the testimony and recommendations, the district court denied Heim's motion for probation. The judge found that “the history that has been placed in front of me, both in connection with this accident and [with] your own personal life, would suggest to me a person who is completely out of control ... and I am unwilling, under those circumstances, to grant you [probation.]” The court gave Heim aggravated sentences of 38 months in prison on the first aggravated-battery charge and 34 months on the second aggravated-battery charge, to run consecutively to one another. The court also gave Heim a concurrent 12–month jail sentence on the DUI charge—also the maximum sentence for that count. Heim has appealed to this court.
Analysis
Heim's primary argument is that the district court abused its discretion in sentencing him. But we have no jurisdiction to consider his argument that the district court abused its discretion in sentencing him on the aggravated-battery convictions: the district court gave Heim sentences within the presumptive sentencing range for those offenses, and we have no jurisdiction to review presumptive sentences. See State v. Huerta, 291 Kan. 831, 837, 247 P.3d 1043 (2011).
Heim is right that the district court had the discretion to sentence him to probation on these offenses since Heim was in a border box on the sentencing guidelines grid. But the presumptive border-box sentence is prison, see K.S.A.2010 Supp. 21–4704(a), (f), so sending Heim to prison was a presumptive sentence. We thus have no jurisdiction to review it. See K.S.A.2012 Supp. 21–6820(c)(l) (stating that an appellate court shall not review any sentence within the presumptive sentence for the offense).
Heim also contends that the district court abused its discretion in sentencing him to 1 year on the DUI conviction. A DUI sentence is not covered under Kansas sentencing guidelines, so we have jurisdiction to consider this issue. A district court abuses its discretion when it bases its decision on an error of fact or law or when its decision is so unreasonable that no reasonable person would agree with it. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012). In addition, a non-guideline sentence may be set aside if it was entered as the result of partiality, prejudice, oppression, or corrupt motive. See State v. McCloud, 257 Kan. 1, 8–9, 891 P.2d 324,cert. denied516 U.S. 837, 116 S.Ct. 118, 133 L.Ed.2d 69 (1995); State v. Sousa, No. 108,740, 2013 WL 4730313 at *1 (Kan.App.2013) (unpublished opinion).
At the time of Heim's offense, the Kansas DUI statute provided that on a third DUI conviction the defendant shall be sentenced to from 90 days to 1 year in prison. K.S.A.2010 Supp. 8–1567(f)(l), Heim's sentence was within the range provided by statute, and he has provided no argument that the district court's sentencing decision was based on partiality, prejudice, oppression, or corrupt motive. The district court expressed its concern about public safety, and the court's comment that Heim appeared “completely out of control” was supported by Heim's act of driving drunk at a speed of more than 100 miles per hour, which resulted in an accident and injuries to four people. We find no abuse of discretion in the district court's 1–year sentence on the DUI conviction.
Heim raises two other arguments that have been rejected in other cases by the Kansas Supreme Court. He contends that the use of his criminal history, which was used to determine his guidelines sentences, was unconstitutional since the past convictions weren't proved in this case to a jury. The Kansas Supreme Court has rejected that argument. See State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013); State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002). Heim also contends that the district court's decision to pick the higher of three numbers in the applicable grid box for Heim's sentence (the “aggravated sentence”) violated his constitutional rights since a jury didn't consider whether the statutorily provided aggravating factors applied. The Kansas Supreme Court has also rejected this argument. See State v. Beaman, 295 Kan. 853, 870–71, 286 P.3d 876 (2012); State v. Johnson, 286 Kan. 824, 841–42, 190 P.3d 207 (2008). We are, of course, bound by those decisions unless there is some indication that the Kansas Supreme Court is moving in a different direction on these issues. See State v. Shaw, 47 Kan.App.2d 994, 1006, 281 P.3d 576 (2012), rev. denied 297 Kan. –––– (May 20, 2013). The Kansas Supreme Court has recently reaffirmed its ruling on each issue, see Baker, 297 Kan. at 485, 301 P.3d 706;Beaman, 295 Kan. at 870–71, 286 P.3d 876, and we therefore apply these precedents, which have rejected Heim's arguments.
On Heim's motion, we accepted this appeal for summary disposition under K.S.A.2012 Supp. 21–6820(g) and (h) and Supreme Court Rule 7.041A (2012 Kan. Ct. R. Annot. 62). We have reviewed the record that was available to the sentencing court, and we have found no error.
The district court's judgment is therefore affirmed.