Opinion
112,340.
12-19-2014
STATE of Kansas, Appellee, v. Max RICKARD, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Max Monroe Rickard appeals his sentence following his conviction of driving under the influence (DUI), third offense. We granted Rickard's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State has filed no response.
Through a plea, the district court convicted Rickard of DUI, third offense, criminal refusal of an alcohol test, and habitual violator. Both parties recommended the minimum mandatory jail sentence of 90 days, followed by probation. The district court imposed a sentence of 1 year in jail and declined to grant probation. Rickard timely appealed.
On appeal, Rickard claims the district court abused its discretion by not granting probation. A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
As Rickard acknowledges, in Kansas, a district court is not bound by plea agreements or sentencing recommendations of the parties. It may impose a sentence independent of any agreements or recommendations. State v. Boley, 279 Kan. 989, 993, 113 P.3d 248 (2005). Here, in denying Rickard's request for probation, the judge stated:
“I'll be honest with you, Mr. Rickard, I'm having a very, very tough time even considering probation. You committed these offenses while you were on felony bond and felony probation. Just last year you had eight convictions. Looking at your record, you have thirty-nine prior convictions. You're just not a good risk to be on probation, so the Court's going to deny your request for probation. And so you're going to have to flatten out the balance of your time. The Court will give you credit for time served.”
Rickard's sentence was within the statutory limits for a third conviction of DUI. The district court's decision to deny probation was not arbitrary, fanciful, or unreasonable, and the decision was not based on an error of law or fact. See Mosher, 299 Kan. at 3. Thus, we conclude the district court did not abuse its discretion in denying Rickard's request for probation.
Affirmed.