Opinion
111,218.
04-10-2015
STATE of Kansas, Appellee, v. Paul J. MYSHKA, Appellant.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., POWELL, J., and MERLIN G. WHEELER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Paul J. Myshka pleaded guilty to felony driving under the influence (DUI) and felony refusal to take a breath test. The State recommended that he receive two 12–month concurrent sentences for the crimes. Instead, the district court ordered the two sentences to run consecutive to each other, making Myshka's total sentence 24 months in jail. Myshka now appeals his sentence arguing that the district court abused its discretion in ordering consecutive instead of concurrent sentences. Because we find that district court did not abuse its discretion in the imposition of consecutive sentences and there is no evidence that the decision was based upon partiality, prejudice, oppression, or corrupt motive, we affirm the district court's decision.
Factual and Procedural History
The State charged Myshka with refusing to submit to a test, DUI, driving while a habitual violator, and failing to signal when turning.
Myshka entered into a plea agreement with the State wherein he would plead guilty to felony DUI and felony refusal to take a breath test. In the plea agreement, Myshka acknowledged that the district court did not have to follow the State's sentencing recommendation.
In the plea agreement, the State recommended that each crime be assigned a 12–month term of jail time, to be served concurrently. The district court sentenced Myshka to 12 months of jail time for each crime but ordered the sentences to be served consecutively, for a total of 24 months of jail time.
The district judge, after sentencing Myshka to a lengthier jail term, stated the following:
“You're going to serve 2 years. I will authorize work release. You'll just go to jail, you'll go to work at the Copper Oven, and you'll report back to the jail, so you can still earn an income for the next two years.
“But you've been in treatment eight times. You were drinking to where you can't even remember, on October 15th, eight days before you're supposed to be sentenced, and two weeks before your evaluation with Substance Abuse Center of Kansas, so you're certainly—at this point, you're not amenable to any probation. I will let KDOC and post-release deal with you after your confinement.
“I will let you keep your job, but right now my responsibility is to the public's safety, and I need to keep you off the streets as long as I can, so I'm giving you the maximum sentence.”
Myshka filed a timely notice of appeal.
Analysis
Myshka contends that the district court abused its discretion because it punished him twice for one incident of criminal conduct. Essentially, because both crimes were committed so close in time, it was unreasonable for the district court to impose consecutive jail sentences.
A sentence for felony DUI under K.S.A.2012 Supp. 8–1567, and a felony refusal to take a breath test under K.S.A.2012 Supp. 8–1025, are not imposed under the Kansas Sentencing Guidelines (KSGA); thus, nonguidelines sentences such as these are reviewed under the pre-KSGA standards. A sentenced 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).
First, the court's decision was clearly within its discretion. It is the sentencing judge alone who determines the appropriate sentence or other disposition of the case. 257 Kan. at 8. A sentencing court is not bound by the recommendations of a plea agreement. See State v. Boley, 279 Kan. 989, 993, 113 P.3d 248 (2005).
Next, while the two crimes occurred within a close period of time, the crimes were still two separate crimes for conviction and sentencing purposes. Moreover, Myshka neglects to argue that the district court's decision was the result of partiality, prejudice, oppression, or corrupt motive. The district judge specifically explained the reasons why he was not following the State's recommendation with the following language:
“But you've been in treatment eight times. You were drinking to where you can't even remember, on October 15th, eight days before you're supposed to be sentenced, and two weeks before your evaluation with Substance Abuse Center of Kansas, so you're certainly—at this point, you're not amenable to any probation. I will let KDOC and postrelease deal with you after your confinement.
“I will let you keep your job, but right now my responsibility is to the public's safety, and I need to keep you off the streets as long as I can, so I'm giving you the maximum sentence.”
Furthermore, Myshka's current felony DUI was his sixth DUI.
In sum, there is no reason to believe that the imposition of consecutive sentences was an abuse of discretion. More specifically, we are unable to find that no reasonable person would agree with the district court's decision to run the sentences consecutive in light of Myshka's prior criminal history and inability to remain sober. Thus, Myshka's argument fails, and the decision of the district court is affirmed.
Affirmed.