State v. Sprout

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NOT DESIGNATED FOR PUBLICATION

No. 120,297

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MARK ALLEN SPROUT,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed October 25, 2019.
Affirmed.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

W. Brad Sutton, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before GARDNER, P.J., BUSER, J., and LAHEY, S.J.

PER CURIAM: Mark Allen Sprout contends the district court abused its discretion
by sentencing him to the maximum sentence. Finding no abuse of discretion, we affirm.

Factual and Procedural Background

In August 2018, Mark Sprout pleaded no contest to a felony driving under the
influence (DUI) and a misdemeanor driving while suspended and pleaded guilty to one
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count of misdemeanor battery. Sprout and the State agreed to recommend a 120-day jail
sentence followed by probation, with all charges to run concurrently.

At sentencing, the district court declined to follow the joint recommendation and
sentenced Sprout to 12 months in jail for the DUI and 6 months in jail for the remaining
charges, running concurrently. The district court explained its sentence by pointing to
Sprout's extensive criminal history, including nine previous DUIs. Although the district
court considered Sprout's diagnosis of colon cancer and his family difficulties, the district
court stated that it could not in good conscience "subject the community to the
dangerousness of your driving intoxicated, whether you have health issues or not, in this
situation."

Sprout timely appealed.

Did the District Court Abuse its Discretion When It Sentenced Sprout to the Maximum
Sentence?

On appeal, Sprout argues solely that the district court abused its discretion when it
chose the maximum sentence possible for his DUI conviction. Sprout is correct that we
review his sentence—a nongrid sentence that falls within statutory guidelines—under the
abuse of discretion standard. See State v. McCloud, 257 Kan. 1, 9, 891 P.2d 324 (1995).
A district court abuses judicial discretion when (1) no reasonable person would take the
district court's view; (2) the discretion is guided by an erroneous legal conclusion, an
error of law; or (3) substantial competent evidence does not support a factual finding on
which a prerequisite conclusion of law or the exercise of discretion is based, an error of
fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011).



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Sprout's sole claim is that the district court's decision was so unreasonable that no
other person would do likewise. He does not claim the decision was based on error of law
or fact. Sprout's contention is that the agreed upon sentence was appropriate and that the
district court's sentence was inappropriate. Because the district court did not follow this
recommendation, Sprout concludes that the district court's decision was unreasonable.

As Sprout concedes, the terms of the plea agreement do not bind a district court.
State v. Beck, 307 Kan. 108, 110, 406 P.3d 377 (2017). However, a district court does not
abuse its discretion merely by imposing a harsher sentence than one listed in a plea
agreement. See State v. Mosher, 299 Kan. 1, 2-3, 319 P.3d 1253 (2014). The harsher
sentence must be so unreasonable that no reasonable person would impose it. See Ward,
292 Kan. at 550. Sprout's sentence does not meet that threshold.

The district court sentenced Sprout under K.S.A. 2018 Supp. 8-1567(b)(1)(D), a
felony. Under that statute, a judge shall sentence a defendant from 90 days to 1-year
imprisonment. After 90 days, a judge may grant the defendant probation, suspend the
sentence, or reduce the sentence. The sentence also allows for work-release and house-
arrest programs.

The statute is a "'self-contained habitual criminal statute.'" State v. Castillo, 54
Kan. App. 2d 217, 221, 397 P.3d 1248 (2017). "Kansas' DUI law is a self-contained
criminal statute, which means that all essential components of the crime, including the
elements, severity levels, and applicable sentences, are included within the statute." State
v. Reese, 300 Kan. 650, 654, 333 P.3d 149 (2014). Thus, a felony DUI is treated as a non-
grid felony. See State v. Anthony, 274 Kan. 998, 1002, 58 P.3d 742 (2002); K.S.A. 2018
Supp. 21-6804(i)(1).

The DUI statute also imposes progressively enhanced sentences to repeat
offenders:
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"K.S.A. 8-1567 is also considered a habitual criminal or recidivist statute because it
imposes progressively enhanced sentences for repeat offenders. The philosophy
underlying a recidivist or habitual criminal statute is that where a less severe penalty has
failed to deter an offender from repeating a violation of the same law, a more severe
penalty is justified to serve as an object lesson that hopefully will cause the offender to
accomplish his or her reformation. City of Dodge City v. Wetzel, 267 Kan. 402, 409, 986
P.2d 353 (1999)." Reese, 300 Kan. at 654-55.

Because Sprout had been convicted nine times previously for DUI, he had graduated to
the most severe sentence. The only "more severe penalty" Sprout could undergo would be
the maximum sentence of one year in jail.

Sprout argues that the plea agreement was reasonable because he had colon
cancer, he had filed a "strong" suppression motion, and the State had approved the
recommendation. But Sprout's stated reasons fail to show why the district court abused its
discretion by giving him the maximum sentence. First, the comments of the district court
reflect that it considered Sprout's colon cancer and his mother's condition. But the district
court decided that the interest of public safety outweighed Sprout's personal difficulties.
We cannot find that no reasonable person would make that same decision. Second,
because Sprout entered his plea before the suppression motion was decided, the district
court had no need to consider whether the suppression motion was strong or weak. By
entering the plea, Sprout forfeited any possibility of winning that motion. And third,
under Kansas caselaw, the district court is not bound by a plea agreement, even if it is
jointly recommended. Beck, 307 Kan. at 110.

Given the facts of the case and Sprout's continual neglect of the laws protecting
the public from drunk drivers, the district court's decision to impose the maximum
sentence was reasonable. Ultimately:

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"It is the sentencing judge alone who determines the appropriate sentence to be
imposed or other disposition of the case by exercising his or her best judgment, common
sense, and judicial discretion after considering all of the reports, the defendant's
background, the facts of the case, and the public safety. A sentence imposed within the
statutory guidelines 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.
Vanderveen, 259 Kan. 836, 842-43, 915 P.2d 57 (1996).

No such partiality, prejudice, oppression, or corrupt motive was shown here.

Affirmed.