Opinion
No. 107,819.
2013-08-29
STATE of Kansas, Appellee, v. Gabriel SANCHEZ–GARCIA, Appellant.
Appeal from Geary District Court; Steven L. Hornbaker, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. John H. Taylor, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Geary District Court; Steven L. Hornbaker, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. John H. Taylor, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Gabriel Sanchez–Garcia appeals from his sentences following his no contest pleas to felony driving under the influence of alcohol (DUI) and misdemeanor theft. Specifically, Sanchez–Garcia alleges the district court abused its discretion by imposing the maximum sentence of 12 months in prison for his DUI conviction, and he alleges the district court erred under Apprendi by using his prior criminal history to increase his sentences without requiring the State to prove his criminal history beyond a reasonable doubt to a jury. For the reasons stated below, we affirm Sanchez–Garcia's sentences.
Facts
On September 9, 2011, police were dispatched to a motel in Junction City, Kansas, where they determined from talking to witnesses that Sanchez–Garcia had placed a mini-refrigerator belonging to the motel in his car, left, and returned in the car a short time later. Garcia was taken into custody for theft. During the course of one officer's contact with Sanchez–Garcia, the officer formed the opinion that Sanchez–Garcia was under the influence of alcohol to the extent that he could not safely operate the car and arrested him for DUI. Thereafter, Sanchez–Garcia was transported to the police station and given a breath test. The test results indicated that Sanchez–Garcia had a blood-alcohol concentration of .159. On September 15, 2011, Sanchez–Garcia was charged with felony DUI based on his record of three prior DUI convictions within the previous 10 years; transportation of liquor in an open container; driving while his license was canceled, suspended, or revoked; and misdemeanor theft.
On October 5, 2011, Sanchez–Garcia entered a no contest plea to DUI and to theft under a plea agreement in which the State agreed to dismiss the other charges against him, to recommend that he serve the minimum sentences for each conviction, and to recommend that the sentences run concurrently. The State presented a factual basis to the court and stated that it had provided counsel evidence showing that Sanchez–Garcia had at least three prior counseled DUI convictions in Kansas. The court accepted the pleas and found Sanchez–Garcia guilty of a fourth DUI conviction under K.S.A.2011 Supp. 8–1567(a)(1) and (b)(1)(E) and misdemeanor theft under K.S.A.2011 Supp. 21–5801(a)(1).
At sentencing on November 18, 2011, the State recommended the court impose an underlying sentence of 12 months' imprisonment with probation after 90 days and the statutory fine for a fourth DUI conviction. Notwithstanding this recommendation, the district court sentenced Sanchez–Garcia to 12 months' imprisonment for the DUI conviction under K.S.A.2011 Supp. 8–1567 and 12 months for the theft conviction under K.S.A.2011 Supp. 21–5801(a)(1), to run concurrently. The court also assessed the $2,500 fine, but with the opportunity to pay the fine by doing community service. The judge found that “this gentleman is a danger to the public, and himself,” noting that “the alcohol-and-drug evaluation indicates that the defendant ... describes his offense in a casual manner, and expresses no regret or feelings of guilt or shame, and he states he has no desire to achieve abstinence from alcohol use.”
Analysis
Maximum Sentence
In his first claim of error, Sanchez–Garcia argues the district court erred in sentencing him to the maximum sentence of 12 months' imprisonment for his DUI conviction. Specifically, Sanchez–Garcia claims the district court ignored the joint recommendation of the parties in the plea agreement, which called for imposition of the minimum sentence. Sanchez–Garcia also claims the district court ignored the availability of other sentencing options, i.e., supervised probation.
Sanchez–Garcia was convicted of violating K.S.A.2011 Supp. 8–1567(a)(1), an unclassified nonperson felony, with three prior DUI convictions. Pursuant to subsection (b)(1)(E), the possible sentence was not less than 90 days and no more than 12 months' imprisonment. That subsection also provides that the person convicted is not eligible for release on probation, suspension or reduction of sentence, or parole until he or she has served at least 90 days' imprisonment. K.S.A.2011 Supp. 8–1567(b)(1)(E).
Because a sentence for felony DUI is imposed under K.S.A.2011 Supp. 8–1567, it is not imposed under the Kansas Sentencing Guidelines Act (KSGA). Nonguidelines sentences are reviewed under the pre-KSGA standards. A sentence imposed within the statutory guidelines will be upheld on appeal if it is within the trial 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 trial court's decision. State v. McCloud, 257 Kan. 1, 9, 891 P.2d 324,cert. denied516 U.S. 837 (1995).
In this case, Sanchez–Garcia has not claimed his sentence was the result of any partiality, prejudice, oppression, or corrupt motive on the part of the district court. He instead asserts the district court ignored the parties' recommendation for the minimum sentence. However, under Kansas law, 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).
Sanchez–Garcia further argues that the district court should have considered probation as an alternative to the maximum sentence, especially considering that he took responsibility for his crime through the guilty plea. However, the district court judge found that Sanchez–Garcia was “a danger to the public, and himself.” The judge further noted that “the alcohol-and-drug evaluation indicates that the defendant ... describes his offense in a casual manner, and expresses no regret or feelings of guilt or shame, and he states he has no desire to achieve abstinence from alcohol use.”
The district court's finding that Sanchez–Garcia was a danger to the public supports its decision to not allow him to serve his underlying 12–month term on probation, despite the parties' recommendation to the contrary. Furthermore, the district court's finding that Sanchez–Garcia expressed no regret or desire to change supports the imposition of the maximum sentence. It cannot be said that no reasonable person would agree with the district court's decision. Therefore, the district court did not abuse its discretion when sentencing Sanchez–Garcia to the statutory maximum jail sentence. Prior Criminal History
In his second claim of error, Sanchez–Garcia argues that the district court violated his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by sentencing him to an increased sentence based on his prior criminal history without requiring the State to prove his criminal history beyond a reasonable doubt to a jury.
Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Jolly, 291 Kan. 842, 845–46, 249 P.3d 421 (2011). The constitutionality of a sentencing statute is a question of law subject to unlimited appellate review. State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009).
Under Apprendi, any fact that increases the maximum penalty for a defendant must be put before a jury and proved beyond a reasonable doubt. 530 U.S. at 490. However, the Kansas Supreme Court has held that the use of criminal history to calculate the presumptive KSGA sentence does not violate due process as interpreted by Apprendi. State v. Bogguess, 293 Kan. 743, 755, 268 P.2d 481 (2012) (affirming State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 [2002] ).
The Ivory decision relied upon language from Apprendi indicating that proof of prior convictions as sentencing enhancements need not be submitted to a jury and proved beyond a reasonable doubt. 273 Kan. at 46. The Ivory court held that Apprendi did not require a jury finding of the fact of a prior conviction beyond a reasonable doubt in order for the prior conviction to be included in a defendant's criminal history score. The court also rejected the argument that Almendarez–Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the source of the prior conviction exception, had been called into doubt by Apprendi. Ivory, 273 Kan. at 46–47.
Sanchez–Garcia acknowledges that the Kansas Supreme Court has previously decided this issue adversely to his position in Ivory but seeks to preserve it for federal review. This court is duty bound to follow Kansas Supreme Court precedent unless there is some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (2012). Sanchez–Garcia proffers no such indication, and his argument fails.
Affirmed.