State v. Clark ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,820
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
BENNY WILLIAM CLARK,
Appellant.
MEMORANDUM OPINION
Appeal from Greenwood District Court; MICHAEL E. WARD, judge. Opinion filed November 25,
2020. Affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before ARNOLD-BURGER, C.J., POWELL and GARDNER, JJ.
PER CURIAM: As part of the plea agreement between the State and Benny William
Clark, the parties made a joint recommendation to the district court for an upward
departure sentence of 300 months in prison. The district court chose instead to sentence
Clark to an upward departure sentence of 364 months. Clark now appeals his sentence,
claiming the district court abused its discretion by mistakenly believing the parties had
not taken into account Clark's eligibility for 15% good time credit when making their
sentencing recommendation. Because we find the district court was aware the parties had
contemplated the 15% good time credit when they made their sentencing
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recommendation, the district court did not abuse its discretion when sentencing Clark to a
longer term. Thus, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Clark was originally charged with first-degree murder and abuse of a child after
the death of his six-month-old son. He subsequently entered into a plea agreement with
the State in which he agreed to plead guilty to a lesser charge of second-degree murder
and abuse of a child in exchange for the State not pursuing the first-degree murder
charge. The parties also agreed to recommend that the sentences for each count run
consecutive and to request an upward durational departure on the second-degree murder
conviction for a total prison sentence of 300 months. Finally, Clark agreed to waive his
right to have a jury find the existence of the aggravating factors and he stipulated to two
aggravating factors: (1) The victim was particularly vulnerable due to age and (2) the
offense involved a fiduciary relationship which existed between the defendant and the
victim.
At sentencing, the district court found there was a factual basis for the two
aggravating factors to which Clark had stipulated and those factors provided substantial
and compelling reasons for an upward durational departure. After acknowledging the
joint recommendation of an upward durational departure sentence to 300 months in
prison, the district judge remarked that he believed the plea agreement did not take into
account the good time credit Clark could earn while in prison. Thus, for Clark's second-
degree murder conviction, the district court sentenced Clark to the aggravated sentence of
165 months in prison then departed upward to 330 months' imprisonment. The district
court then sentenced Clark to 34 months' imprisonment for the abuse of a child
conviction and ordered the sentences run consecutive for a cumulative sentence of 364
months in prison. The district court explained it was imposing that sentence because it
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believed the facts and the law supported it and because, with the application of good time
credit, Clark would end up serving close to 300 months in prison.
Clark now appeals his sentence.
DID THE DISTRICT COURT ERR IN SENTENCING CLARK?
Before us, Clark only challenges the extent of the district court's upward
durational departure sentence. Clark does not challenge his plea agreement or the State's
actions in respect to that agreement. Clark does not challenge the district court's finding
of two aggravated factors instead of a jury as he waived his right to having a jury make
those findings. Nor does Clark challenge that the aggravating factors constitute
substantial and compelling reasons justifying the upward durational departure. Finally,
Clark does not allege his sentence violates the "double-double rule." See K.S.A. 2019
Supp. 21-6818(b)(2) ("When a sentencing judge departs in setting the duration of a
presumptive term of imprisonment . . . the presumptive term of imprisonment set in such
departure shall not total more than double the maximum duration of the presumptive
imprisonment term.").
Instead, Clark argues the district court abused its discretion when it found the plea
agreement did not contemplate Clark's eligibility for 15% good time credit and sentenced
Clark to 364 months in prison instead of the jointly recommended 300 months. The State
responds that K.S.A. 2019 Supp. 21-6820(d) only allows a party to challenge whether the
district court's findings of fact and reasons justifying a departure are supported by
evidence in the record and constitute substantial and compelling reasons to depart. The
State argues Clark's stipulation to both the existence of two aggravating factors and that
such factors constituted substantial and compelling reasons to justify the upward
departure essentially vitiates Clark's appeal. The State also contends the district court
acted within its discretion in sentencing Clark.
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While we acknowledge the statutory limitations to appellate review of departure
sentences, our Supreme Court has applied an abuse of discretion standard when
reviewing the extent of a district court's departure sentence. See State v. Favela, 259 Kan.
215, 243, 911 P.2d 792 (1996) (reviewing extent of downward durational departure for
abuse of discretion); see also State v. Tiffany, 267 Kan. 495, 506-07, 986 P.2d 1064(1999) (applying Favela to upward durational departure); State v. Rodriguez, 305 Kan.
1139, 1144, 390 P.3d 903 (2017) (Court of Appeals duty bound to follow Supreme Court
precedent). When reviewing under an abuse of discretion standard, "the question is
whether the extent of the sentencing court's durational departure is consistent with the
'enacted purposes and principles of [the] sentencing guidelines' and 'proportionate to the
severity of the crime of conviction and the offender's criminal history.'" Favela, 259 Kan.
at 244. Judicial action is abused if that action is (1) one where no reasonable person
would take the view adopted by the district court; (2) is based on an error of law; or (3) is
based on an error of fact. State v. Woodring, 309 Kan. 379, 380, 435 P.3d 54 (2019).
Clark bears the burden to establish an abuse of discretion. See State v. Anderson, 291
Kan. 849, 855, 249 P.3d 425 (2011).
A portion of the plea agreement called for Clark and the State to recommend
consecutive sentences for each count and an upward durational departure for a total
sentence of 300 months. At the sentencing hearing, both parties fulfilled their obligation
under the plea agreement by jointly recommending a total sentence of 300 months in
prison, including an upward durational departure sentence on the second-degree murder
conviction from 165 months to 266 months. But it was at this point the district court
decided not to follow the joint recommendation. Instead, the district court upwardly
departed to a 330-month sentence for the second-degree murder conviction and sentenced
Clark to a total of 364 months' imprisonment in an effort to make Clark's total time in
prison, when a 15% good time credit was included, as close to 300 months as possible.
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In Kansas, all plea negotiations are premised on the knowledge that any agreement
is not binding on the district court. Thus, when a defendant agrees to plead guilty, a
district court is not bound by a plea agreement's terms and can reach its own decision on
whether to approve a negotiated charge or sentence recommendation. State v. Boley, 279
Kan. 989, 993, 113 P.3d 248 (2005). Because a plea agreement cannot bind the district
court, the parties cannot be assured of a specific sentence, and both parties assume the
risk that the district court will impose a different sentence than what was recommended in
the plea agreement. 279 Kan. at 996. Instead, a district judge imposes a sentence "in the
exercise of his or her best judgment, common sense, and judicial discretion, and
considering all of the reports, the defendant's background, the facts of the case, and the
public safety." State v. Harrold, 239 Kan. 645, 651, 722 P.2d 563 (1986).
Clark complains that the district court did not give him the 300-month sentence he
negotiated with the State. But the district court was not bound to sentence him to 300
months. The district court had the discretion to sentence Clark anywhere within the
appropriate grid box. Once Clark stipulated to the existence of two aggravating factors
and such factors constituted substantial and compelling reasons to depart, the district
court had the discretion to upwardly depart to any sentence it believed appropriate, so
long as it did not violate the double-double rule. See K.S.A. 2019 Supp. 21-6818(b)(2).
Clark does not take issue with the district court's authority to sentence him to 330 months
for second-degree murder.
Instead, Clark argues the district court's decision to do so was an abuse of
discretion because it incorrectly interpreted the plea agreement as not contemplating the
application of good time credit. Clark alleges the district court committed a legal error
when it concluded the parties did not consider good time credit when reaching their joint
sentencing recommendation. Although Clark calls this an error of law, we see Clark's
argument as alleging an error of fact because Clark is not claiming the district court made
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a mistake regarding the law but a mistake involving the parties' negotiations—a factual
question.
The record shows the district court was aware the plea agreement recommended a
300-month sentence and contemplated good time credit. The district court discussed good
time credit with Clark at the plea hearing and informed Clark he would be eligible for up
to 15% good time credit. And at sentencing, the district court asked the county attorney if
good time credit would apply to the upward departure sentence. The county attorney's
answer that it would apply shows the district court was aware the parties had considered
good time credit.
The district court did not commit an error of fact when sentencing Clark. It
imposed a greater sentence than the parties recommended because it believed the nature
of the crime necessitated that Clark serve at least 300 months in prison and the joint
sentencing recommendation coupled with good time credit did not guarantee that
happening. We conclude a reasonable person could agree with the district court's
reasoning. The district court did not abuse its discretion when sentencing Clark.
Affirmed.
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