State v. Barnett ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,116
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
GARRETT LEE BARNETT,
Appellant.
MEMORANDUM OPINION
Appeal from Saline District Court, RENE S. YOUNG, judge. Opinion filed June 4, 2021. Affirmed
in part and dismissed in part.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before POWELL, P.J., MALONE and GARDNER, JJ.
PER CURIAM: Garrett Lee Barnett appeals the district court's sentence. We granted
Barnett's motion for summary disposition in lieu of briefs under Supreme Court Rule
7.041A (2021 Kan. S. Ct. R. 48.) Our review of Barnett's appeal of his jail time is
precluded by K.S.A. 2020 Supp. 21-6820(c)(2), and we find no abuse of discretion in the
court's decision to run his sentences consecutively. Thus we affirm in part and dismiss in
part.
On September 4, 2017, Barnett committed aggravated domestic battery, a severity
level 7 person felony, and cruelty to animals, a nongrid nonperson felony. Barnett
pleaded no contest to an amended count of domestic battery, a nongrid felony, and an
amended count of cruelty to animals, a class A nonperson misdemeanor. The State
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charged domestic battery as a nongrid felony because this was Barnett's third domestic
violence conviction in a five-year period. A third conviction of domestic battery requires
a 90-day mandatory jail sentence that is modified only if the defendant is approved to
take part in a work release program. See K.S.A. 2017 Supp. 21-5414(c)(1)(C).
The plea provided for the disposition of two cases: a 2018 case charging Barnett
with one count of domestic battery and the current case. For the 2018 case, the plea
agreement recommended that the district court impose a sentence of 12 months in jail but
suspend that sentence and place Barnett on probation after serving 90 days in jail. For the
current 2017 case, the plea agreement recommended that the sentences for domestic
battery and cruelty to animals run concurrent with each other. It also recommended that
the district court impose a 12-month jail sentence, suspend that sentence, and place
Barnett on probation after serving 90 days in jail. The plea included no recommendation
as to whether the sentence in the 2018 case and the sentence in this 2017 case would be
served consecutive to or concurrent with each other.
At sentencing, Barnett asked the district court to impose probation, to reduce the
jail sentence to time served, and to run the sentences in the two cases concurrently. The
State argued that the sentences in the two cases should be served consecutively. The
district court denied Barnett's request for probation and a reduced jail sentence and
instead followed the recommendations of the plea agreement. The district court ordered
the sentences in the two cases to run consecutive to each other, thereby ordering Barnett
to serve at least 180 days in jail before being placed on probation.
For unknown reasons, the Kansas Department of Corrections failed to "hold"
Barnett for this case after he completed a prior imposed sentence. Barnett moved the
district court to modify his sentence to house arrest so he would not have to return to jail.
After several continuances, the district court heard from both parties and then denied
Barnett's motion.
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Barnett appeals, arguing that the district court abused its discretion by imposing a
jail sentence and by running the sentence consecutive to sentences in his other cases.
Barnett argues that was unreasonable because: the victim requested otherwise; Barnett
needed substance abuse treatment; he had arrangements for employment, education, and
rehabilitation; and because of his youth (around 22 years old).
Under K.S.A. 2020 Supp. 21-6820(c)(2), an appellate court cannot review any
sentence resulting from an agreement between the State and the defendant that the
sentencing court approves on the record. Because Barnett's jail sentence results from a
plea agreement between the State and Barnett that the district court approved on the
record, we cannot review the jail sentence. As the parties agreed, the district court
imposed a sentence of 12 months in jail for the 2018 case but suspended that sentence
and placed Barnett on probation after serving 90 days in jail. And in the current 2017
case, as the parties agreed, the district court ran the sentences for domestic battery and
cruelty to animals concurrent with each other, imposed a 12-month jail sentence,
suspended that sentence, and then placed Barnett on probation once he had served 90
days in jail. Because the district court's jail sentence resulted from an agreement between
the State and the defendant, we cannot revisit it. We dismiss this part of Barnett’s appeal.
But the parties did not agree whether Barnett's sentence in this case would run
concurrent with or consecutive to his sentence in his 2018 case. Each party remained free
to argue their position to the court and did so. Because the plea reflected no agreement as
to the concurrent or consecutive nature of these cases, K.S.A. 2020 Supp. 21-6820(c)(2)
does not apply to bar our review of this issue. A district court has discretion to run a
defendant's sentences consecutive to each other, so we review that decision for an abuse
of discretion. State v. Mosher, 299 Kan. 1, 2-3, 319 P.3d 1253 (2014). Barnett bears the
burden to show an abuse of discretion by the district court. See State v. Rojas-Marceleno,
295 Kan. 525, 531, 285 P.3d 361 (2012). Unless the district court made a legal or factual
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error, we may find an abuse of discretion only when no reasonable person would agree
with the district court's decision. Mosher, 299 Kan. at 3.
The district court exercised discretion in imposing the sentences consecutive to
each other. Barnett points to his stated desire to obtain steady employment and finish his
education and to the victim's wishes, yet does not explain what they are. But because this
was Barnett's third domestic violence conviction, a reasonable person could agree with
the court's decision to run the sentences consecutively. Thus, we cannot say that the
district court's decision to do so constitutes an abuse of discretion.
Affirmed in part and dismissed in part.
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