Opinion
No. 107,356.
2013-02-8
STATE of Kansas, Appellee, v. William A. CORKILL, Appellant.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
In November 2011, William A. Corkill entered a plea of guilty to driving while under the influence of alcohol (DUI), a nongrid felony under K.S.A.2009 Supp. 8–1567(g)(1). Pursuant to a written plea agreement, the State agreed to join in a recommendation that the trial court impose a 270–day jail sentence, and Corkill agreed not to request work release. The trial court accepted Corkill's plea and found him guilty, but rejected the recommendation of the plea agreement and sentenced Corkill to 12 months in jail.
Corkill appeals this sentence.
Standard of Review
Corkill first argues that the trial court abused its discretion when it declined to follow the recommended 9–month (270–day) sentence.
The length of a DUI sentence is not governed by the Kansas Sentencing Guidelines Act (KSGA) but by the specific penalty provisions of the DUI statute and the pre-KSGA standards. K.S.A.2009 Supp. 21–4704(i); see State v. Anthony, 274 Kan. 998, 1000–01, 58 P.3d 742 (2002). Under this standard of review, a sentence that falls within the statutory parameters will not be disturbed on appeal “if it is within the trial court's discretion and not a result of partiality, prejudice, oppression or corrupt motive.” State v. McCloud, 257 Kan. 1, 9, 891 P.2d 324,cert. denied516 U.S. 837 (1995). An abuse of discretion exists when the trial court's action is arbitrary, fanciful, or unreasonable, or in other words, if no reasonable person would have taken the action of the trial court. State v. Sellers, 292 Kan. 117, 124, 253 P.3d 20 (2011).
The DUI statute governing Corkill's arrest and prosecution provided: “On the fourth or subsequent conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined $2,500.” K.S.A.2009 Supp. 8–1567(g)(l). The parties concede that the current conviction was Corkill's ninth DUI. After inquiry on the record, the trial court rejected the recommendation of the plea agreement an imposed a sentence of 12 months in jail, which is the maximum under the statute.
Corkill acknowledges that the trial court is under no obligation to follow the recommendation of a plea agreement. See State v. Boley, 279 Kan. 989, Syl. ¶ 2, 113 P.3d 248 (2005). Corkill does not allege that the trial court's decision was a result of partiality, prejudice, oppression, or corrupt motive. See McCloud, 257 Kan. at 9.
Corkill argues that the trial court abused its discretion by failing to properly weigh and consider mitigating factors such as his willingness to seek treatment for his alcohol problems and his concerns regarding adequate medical care and treatment while incarcerated. He cites State v. Spencer, 291 Kan. 796, 248 P.3d 256 (2011) in support of this proposition. Spencer, however, deals with the weight to be accorded aggravating and mitigating factors in consideration of a departure sentence. Corkill cites no authority which would suggest that a trial court must weigh such factors in considering whether or not to follow a plea agreement. In any event, the record in this case would indicate that the trial court carefully considered Corkill's concerns and various sentencing alternatives. The court also considered Corkill's age, his long history of alcohol abuse, and the fact that this was Corkill's ninth DUI conviction. The trial court concluded that community safety interests justified imposition of the maximum sentence. See State v. Stucky, No. 104,240, 2011 WL 1877846, at *1 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. –––– (October 24, 2011).
It can be said with certainty that, based on the record herein, reasonable persons would agree with this action by the trial court. The trial court did not abuse its discretion in rejecting the plea agreement and imposing the maximum sentence.
Apprendi Violation
Corkill also claims that the trial court violated the rule set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by using prior DUI convictions to increase his sentence without submitting them to a jury for proof beyond a reasonable doubt. The Kansas Supreme Court has rejected this argument in State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002), and has not indicated any change on this issue. See State v. Hughes, 290 Kan. 159, 173, 224 P.3d 1149 (2010). In State v. Bussart–Savaloja, 40 Kan.App.2d 916, Syl. ¶ 13, 198 P.3d 163 (2008), rev. denied 288 Kan. 833 (2009), this court also rejected this argument in the DUI context. We are bound by Kansas Supreme Court precedent and, thus, Corkill is foreclosed from relief on this ground. See State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011).
Affirmed.