                          NOT DESIGNATED FOR PUBLICATION

                                             No. 120,912

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         STATE OF KANSAS,
                                             Appellee,

                                                   v.

                                        CECIL CLAYTON JR,
                                            Appellant.


                                  MEMORANDUM OPINION

       Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed April 24, 2020.
Affirmed.


       Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.


       Kurtis Wiard, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.


Before HILL, P.J., BUSER and BRUNS, JJ.


       PER CURIAM: Cecil Clayton Jr. appeals his sentence following his sixth
conviction for driving under the influence (DUI). After pleading guilty in accordance
with a plea agreement, Clayton was sentenced to serve 90 days of a 12-month jail
sentence before being placed on supervised probation. On appeal, Clayton contends the
district court should have granted his request to serve the 90 days on house arrest. Upon
our review, we find the district court did not abuse its discretion by denying Clayton's
request for house arrest. Accordingly, we affirm Clayton's sentence.




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                           FACTUAL AND PROCEDURAL BACKGROUND


       Following an automobile accident in April 2017, a grand jury indicted Clayton for
felony DUI in violation of K.S.A. 2016 Supp. 8-1567(b)(1)(D), circumvention of an
ignition interlock device, and driving while suspended. In keeping with the plea
agreement, Clayton pled guilty to felony DUI and the State dismissed the other two
charges. A presentencing investigation report revealed that Clayton had a criminal history
score of A. Clayton's criminal history included five prior DUI convictions and six person
felonies.


       At sentencing, both parties recommended that Clayton serve 48 hours in jail and
90 days on house arrest with an underlying sentence of 9 months in jail. Upon completion
of house arrest, Clayton was to be released on a 12-month supervised probation.


       The district court, however, did not follow the plea agreement. Instead, the district
court sentenced Clayton to serve 90 days in jail before being placed on supervised
probation for 12 months with an underlying 12-month jail sentence. The district court
ordered that Clayton was eligible for work release after serving 48 hours in jail.


       In denying Clayton's request for house arrest, the district court noted his extensive
criminal history, which included serious offenses and five prior DUI convictions. The
district court determined that house arrest was inappropriate because of Clayton's prior
convictions.


       Clayton appeals.




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                                          ANALYSIS

       On appeal, Clayton contends the district court erred by requiring him to serve 90
days in jail instead of house arrest.


       Kansas law and our standards of review provide that a nongrid sentence imposed
within the statutory guidelines will not be reversed absent an abuse of discretion. See
State v. Brown, 309 Kan. 369, 375, 435 P.3d 546 (2019). A judicial action constitutes an
abuse of discretion if (1) no reasonable person could take the view of the district court;
(2) the action is based on an error of law; or (3) the action is based on an error of fact.
State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). As the party asserting the
district court abused its discretion, Clayton bears the burden of showing such abuse. See
State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).


       On appeal, Clayton does not argue that the district court made a factual or legal
error. As a result, Clayton must show that no reasonable person would have agreed with
the district court's decision.


       The district court sentenced Clayton under K.S.A. 2016 Supp. 8-1567(b)(1)(D),
which provides that the court must sentence an offender "to not less than 90 days nor
more than one year's imprisonment." An offender is not eligible for release on probation
until he or she has served at least 90 days of imprisonment. The 90 days of imprisonment,
however, may be served in a work release program. A district court also has the
discretion to place an offender on house arrest to serve the 90-day requirement. K.S.A.
2016 Supp. 8-1567(b)(1)(D).


       The statute governing Kansas DUI law is a self-contained criminal statute,
meaning that the essential components of the crime—including applicable sentences—are
included in the statute. State v. Reese, 300 Kan. 650, 654, 333 P.3d 149 (2014).

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Additionally, K.S.A. 2016 Supp. 8-1567 is considered a habitual criminal statute because
it imposes progressively enhanced sentences for repeat offenders such as Clayton. The
philosophy behind such a 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." 300 Kan. at 654.


       Clayton claims that the agreed-upon disposition of house arrest was appropriate,
and the district court abused its discretion by refusing to follow the plea agreement. But
contrary to Clayton's argument, a district court is not bound by the parties' sentencing
recommendations and does not abuse its discretion merely by imposing a harsher
sentence than one agreed upon by the parties. State v. Mosher, 299 Kan. 1, 2-4, 319 P.3d
1253 (2014).


       A reasonable person could agree with the district court's decision to deny
Clayton's request for house arrest in lieu of jail time. Clayton has a criminal history score
of A—the highest possible score—and this is his sixth DUI conviction. Notably, we have
upheld a district court's refusal to grant house arrest under similar circumstances. State v.
Castillo, No. 112,485, 2015 WL 6455509, at *2-3 (Kan. App. 2015) (unpublished
opinion) (upholding refusal to grant work release or house arrest when defendant had
four previous DUI convictions and two convictions for escaping custody).


       The district court reasonably determined that jail time was appropriate since
Clayton had not been deterred from violating Kansas' DUI laws. Additionally, the district
court appropriately considered Clayton's other serious offenses when denying his request
for house arrest. See K.S.A. 2019 Supp. 8-1567(i)(1) ("Nothing in this provision shall be
construed as preventing any court from considering any convictions or diversions
occurring during the person's lifetime in determining the sentence to be imposed . . . .").


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       We, therefore, hold that the district court did not abuse its discretion by denying
Clayton's request to serve 90 days of his 12-month jail sentence on house arrest.


       Affirmed.




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