State v. Kendall

• Decision Date: 23 November 2022
• Docket Number: 124,880
• Parties: State of Kansas, Appellee, v. Nicholas Ira Kendall, Appellant.
• Court: Kansas Court of Appeals

State of Kansas, Appellee, v. Nicholas Ira Kendall, Appellant.

No. 124,880

Court of Appeals of Kansas

November 23, 2022

NOT DESIGNATED FOR PUBLICATION

Appeal from Leavenworth District Court; GERALD R. KUCKELMAN, judge.

Benjamin N. Casad, of Leavenworth, for appellant.

Jodi Litfin, assistant solicitor general, and Derek Schmidt attorney general, for appellee.

Before HURST, P.J., MALONE and BRUNS, JJ.

MEMORANDUM OPINION

PER CURIAM.

Nicholas Ira Kendall appeals his sentence following his second conviction for driving with a suspended driver's license. After pleading no contest to the charge, the district court sentenced Kendall to a 12-month jail sentence, suspended to 12 months' supervised probation once he has served 90 days in jail. On appeal, Kendall contends the district court abused its discretion by imposing a 90-day jail sentence and denying his request to serve the 90 days on house arrest. Based on our review of the record, we conclude that the district court's decision was reasonable and was not based on an error of law or fact. Thus, we affirm.

In October 2020, the State charged Kendall with driving under the influence (DUI), driving while his driver's license was suspended, and transportation of liquor in an open container committed in February 2020. In December 2021 Kendall entered into a plea agreement with the State and pled no contest to reduced charges of driving with a suspended driver's license in violation of K.S.A. 2021 Supp 8-262(a)(1). In turn, the other charges were dismissed.

Kendall's presentence investigation report (PSI) recommended that he "should be sentenced to 12 months in the Leavenworth County Jail, all but 90 days suspended and placed on 1 year supervised probation with Court Services." After Kendall requested and received three continuances, the district court held a sentencing hearing on February 4, 2022. At the hearing, Kendall requested that if the district court ordered him to serve a 90-day jail sentence as recommended in the PSI, it should allow him to serve his sentence under house arrest. Alternatively, Kendall requested that he only serve five days in jail.

The district court asked whether Kendall's driver's license had been suspended as a result of a prior DUI conviction. Kendall's attorney admitted that this "was true" but that he believed the period of suspension "had already been served at the time of this offense." Before rendering its sentence, Kendall was given the opportunity to address the district court. In doing so, Kendall stated that his father was ill and that house arrest would be ideal for him and for his family.

In denying Kendall's request for probation, the district court stated:

"[T]he Court has to worry about the public and the safety of having you on the streets. You've had three DUIs. The State of Kansas, as a result of those, ordered you not to operate a motor vehicle. I see at least on one occasion you tampered with the interlock device, and you got convicted of doing that. So it concerns me greatly to have you out on the streets, and house arrest certainly does not do anything to protect the public from your driving."

The district court then sentenced Kendall to a 12-month jail sentence, suspended to 12 months' probation, after serving 90 days in jail. Thereafter, Kendall filed a timely notice of appeal.

ANALYSIS

On appeal, Kendall contends that the district court abused its discretion by requiring him to serve 90 days in jail rather than on house arrest. In the alternative, Kendall argues that the district court should have sentenced him to a five-day jail sentence. In response, the State argues that the district court did not err in sentencing Kendall to 90 days in jail or in denying his request for house arrest. The State argues that based on Kendall's criminal history that includes three previous DUI convictions and one previous driving while suspended conviction, the district court made a reasonable decision to deny Kendall's request for house arrest in accordance with the PSI recommendation and K.S.A 2021 Supp. 8-262(a)(4). We agree.

A sentence for driving while suspended is governed by K.S.A 2021 Supp. 8-262, rather than under the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2021 Supp. 21-6801 et seq. Nongrid sentences imposed within the statutory guidelines are not to be disturbed on appeal unless the district court has abused its discretion. See State v. Brown, 309 Kan. 369, 375, 435 P.3d 546 (2019). A judicial action constitutes an abuse of discretion if it is unreasonable, based on an error of law, or based on an error of fact. ...