1 NOT DESIGNATED FOR PUBLICATION

No . 122, 757

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appell ee ,

v.

J OHN C. C LEAVER , Appell ant

.

MEMORANDUM OPINION

Appeal from Sedgwick D istrict C ourt; B RUCE C. B ROWN , judge. Opinion filed June 1 8 , 20 2 1

. 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 appell e e.

Before W ARN ER , P .J., B USER and C LINE , J J

.

P ER C URIAM : John C. Cleaver a sserts the district court abus ed 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

asser tion unfounded and affirm.

Cleaver pled guilty to a nongrid felony driving under the influence (DUI) charge

. In his plea agreement, t he State agreed to rec ommend a controlling sentence of 12 months in jail and a fine of $2,500. T he State also agreed to recommend a mandatory 722 hours in jail before being placed on house arrest or work release for a term of 4,320
hours , with 12 month s of postimprisonment super vision.

Cleaver failed to ap pear for his sentencing hearing on July 19, 2018 . T he district
court issued a bench warrant for his arrest

. After his arrest several months later , he appeared for sentencing on February 24, 2020

. Th e State asked the district court to find Cleaver violated his plea agreement by failing to appear at his July 19, 2018 sentencing hearing . B ased on that finding, the State then asked the court to increase the house arrest or work release portion of Cleaver ' s sentence fr om 4,320 hour s (six month s) to 6,480
hours (nine month s) . 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 th at agreement. Still, Cleaver asked the dis trict 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 . Wh ile emphasizing the " excellent plea bargain " Cleaver had received, the court express ed 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] t hese 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 court room 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. "3 Then, a fter noting it was considering all the required factors, the district court
followed the State ' s rec ommendation 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 cloud ed his judgme nt 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 a n 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 commit te d 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 wh en sentencing Cleaver . To begin with, Cle aver ' 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. T he State specifically asked
the district court to increase the work

- release portion of Cleaver ' s sentence by three
months (from 4,320 hours to 6,48 0 hours) because of Cleaver ' s violation of the plea agreement

. The district court did not " go rogue " but, instead, explicitly followed the
State ' s recommend ation

.4 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 O ffice, the se comments were incidental

. Indeed, rather than evidenc ing a blanket judgment, the court ' s comments explain its reason for d iverging 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 cour t can show a
failure or refusal of the district court to exercise discretion, requir ing 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 the se stat ements " 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 clarif ied 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 mo dification s , 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 abou t 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. "5 Cleaver contends the se 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, i f this were true, then the district court would have orde red 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, t he district court specific ally acknowledged

t he 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.

Affirm ed

.