State v. Cleaver ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,757
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JOHN C. CLEAVER,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed June 18, 2021.
Affirmed.
Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before WARNER, P.J., BUSER and CLINE, JJ.
PER CURIAM: John C. Cleaver asserts the district court abused its sentencing
discretion by disregarding the individual circumstances of his case and, instead, issuing a
blanket judgment based on the district court's personal feelings. We find Cleaver's
assertion unfounded and affirm.
Cleaver pled guilty to a nongrid felony driving under the influence (DUI) charge.
In his plea agreement, the State agreed to recommend a controlling sentence of 12
months in jail and a fine of $2,500. The State also agreed to recommend a mandatory 72
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hours in jail before being placed on house arrest or work release for a term of 4,320
hours, with 12 months of postimprisonment supervision.
Cleaver failed to appear for his sentencing hearing on July 19, 2018. The district
court issued a bench warrant for his arrest. After his arrest several months later, he
appeared for sentencing on February 24, 2020. The State asked the district court to find
Cleaver violated his plea agreement by failing to appear at his July 19, 2018 sentencing
hearing. Based on that finding, the State then asked the court to increase the house arrest
or work release portion of Cleaver's sentence from 4,320 hours (six months) to 6,480
hours (nine months). Cleaver conceded that he violated the plea agreement and that his
violation relieved the State from its obligation to recommend the sentence set forth in that
agreement. Still, Cleaver asked the district court to follow the sentencing
recommendations in the plea agreement.
When pronouncing Cleaver's sentence, the district court described his "pretty
lengthy criminal history" and pointed out this was Cleaver's seventh DUI. While
emphasizing the "excellent plea bargain" Cleaver had received, the court expressed its
displeasure with the District Attorney's Office plea bargaining practices in DUI cases,
remarking:
"I don't agree with the way the [district attorney] plea bargain[s] these things. I mean, you
could have the 25th DUI and they're gonna recommend the same thing, that you get, you
know, your 90 days of house arrest and two days in jail. And that's just not the way it
ought to be. I mean, really, in my opinion, once you get much beyond like a fourth DUI
it's just go do a year in jail . . . keep the community safe, dry out, think about your
alcoholism, come up with a plan to address it. So I mean, I'll take these to trial, you
know, be glad to have them go to trial in my courtroom all day long, double 'em up in a
week and that sort of thing. So that's really what you're up against here. It was an
excellent plea bargain."
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Then, after noting it was considering all the required factors, the district court
followed the State's recommendation to increase the work-release portion of Cleaver's
sentence to 6,480 hours. The court otherwise sentenced Cleaver in accordance with the
plea agreement.
On appeal, Cleaver argues the district court judge's feelings improperly clouded
his judgment when determining Cleaver's sentence. Cleaver claims the district court's
comments reveal it sentenced Cleaver based on a "blanket judgment" about DUI
defendants and the District Attorney's Office's plea-bargaining practices, rather than on
the individual circumstances of Cleaver's case. On this basis alone, Cleaver argues the
district court abused its sentencing discretion by extending the work-release portion of his
sentence by three months.
A judicial action constitutes an abuse of discretion if the action is (1) arbitrary,
fanciful, or unreasonable, (2) based on an error of law, or (3) based on an error of fact.
State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011). Since Cleaver does not claim the
district court committed a legal or factual error, we must simply determine whether the
court acted unreasonably, fancifully, or arbitrarily when sentencing Cleaver.
The record shows the district court acted well within its discretion when
sentencing Cleaver. To begin with, Cleaver's argument turns on a factual error. He asserts
the district court imposed a sentence "even harsher than the State's increased request once
the plea agreement no long bound it," as evidence the district court ignored the
circumstances of his case. In fact, quite the opposite is true. The State specifically asked
the district court to increase the work-release portion of Cleaver's sentence by three
months (from 4,320 hours to 6,480 hours) because of Cleaver's violation of the plea
agreement. The district court did not "go rogue" but, instead, explicitly followed the
State's recommendation.
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Cleaver also unduly emphasizes the district court's remarks. While the court
commented (perhaps imprudently) on the plea-bargaining practices of the District
Attorney's Office, these comments were incidental. Indeed, rather than evidencing a
blanket judgment, the court's comments explain its reason for diverging from the terms of
the plea agreement—namely, Cleaver's violation of an "excellent plea bargain."
Relying on State v. Welch, No. 121,700, 2020 WL 5083324 (Kan. App. 2020)
(unpublished opinion), Cleaver asserts that comments made by a district court can show a
failure or refusal of the district court to exercise discretion, requiring a reversal. In Welch,
the defendant relied on three judicial statements from the probation revocation hearing as
evidence the district court made a blanket ruling, which were: (1) "'I don't modify
sentences when somebody violates,'" (2) "'I don't modify when a person has violated,'"
and (3) "'I'm not singling you out. I just wouldn't do it for anybody.'" 2020 WL 5083324,
at *4. A panel of this court found these statements "suggest an arbitrary rule disposing of
this issue the same way in all cases without any individualized consideration." 2020 WL
5083324, at *4. This court clarified that, even if a proper individualized consideration
would lead to the same outcome, a district court's governing criterion on a defendant's
request for a sentence modification cannot be "one size fits all." 2020 WL 5083324, at
*4. Even so, this court noted that, had the district court made only one statement in
passing that it normally does not grant sentence modifications, then the court may have
found it harmless, given other thoughtful comments the district court made. 2020 WL
5083324, at *4.
Here, Cleaver claims two specific statements show the district court made a
blanket judgment and did not sentence Cleaver based on his individual circumstances:
(1) "in my opinion, once you get much beyond like a fourth DUI it's just go do a year in
jail . . . keep the community safe, dry out, think about your alcoholism, come up with a
plan to address it," and (2) "I'll take these to trial, you know, be glad to have them go to
trial in my courtroom all day long, double 'em up in a week and that sort of thing."
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Cleaver contends these statements suggest the district court sentenced him in
accordance with its "sweeping judgment and belief that all defendants with more than
five DUIs should receive the maximum sentence." But as the State points out, if this were
true, then the district court would have ordered Cleaver to serve the entire 12-month
sentence in jail without giving him the opportunity at work release. Instead, it adopted the
State's recommended sentence, which was far more lenient than the blanket rule Cleaver
claims the district court espoused.
When determining Cleaver's sentence, the district court specifically acknowledged
the individual circumstances in Cleaver's case, including his long criminal history, prior
DUI convictions, and violation of an excellent plea bargain. Imposing a sentence which
extended the work-release term by three more months, particularly when the State
requested that very extension, was not arbitrary, fanciful, or unreasonable.
Affirmed.
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