State v. Brewer

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NOT DESIGNATED FOR PUBLICATION

No. 120,375

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ERIC B. BREWER,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed June 7,
2019. Affirmed.

Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and
(h).

Before MALONE, P.J., LEBEN and POWELL, JJ.

PER CURIAM: Eric B. Brewer appeals the district court's sentencing, complaining
the district court abused its discretion by imposing the sentences for his two battery
counts consecutively, instead of concurrently as recommended in the plea agreement, and
by ordering that Brewer's sentences run consecutive to his sentences in a number of prior
municipal misdemeanor cases. We granted Brewer's motion for summary disposition
pursuant to Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). The State responded
by not objecting to summary disposition, but it asks that the district court's judgment be
affirmed. We agree with the State and affirm.

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As part of a plea agreement with the State, Brewer pled guilty to one count of
felony domestic battery, a nongrid person felony, and one count of misdemeanor battery,
a class B person misdemeanor. In exchange for Brewer's plea, the State agreed to
recommend a 12-month jail sentence and probation from that sentence on the domestic
battery count, provided that Brewer serve 120 days in jail prior to his release on
probation. As to the misdemeanor battery count, the State agreed to recommend six
months in jail, but also with probation, and that this sentence run concurrent with the
domestic battery sentence. The plea agreement was silent on whether the sentences in this
case were to run concurrent with or consecutive to sentences Brewer had in other cases.
Brewer was free to argue for a different sentence.

At sentencing on October 16, 2018, the district court followed the plea agreement
in most respects and imposed a 12-month jail sentence for domestic battery and 6 months
in jail for misdemeanor battery. However, instead of imposing the sentences for each
count concurrently in accordance with the plea agreement, the district court, citing
Brewer's history of domestic violence and battery, ordered that the counts run
consecutively. Additionally, the district court ordered that the sentences in this case run
consecutive to the sentences imposed in any of Brewer's prior cases. The record makes
reference to two or more municipal court misdemeanor sentences for domestic violence
for which Brewer was currently serving probation, and the district court expressed
concern that those sentences not disappear due to a concurrent sentence in the present
case given Brewer's history of violence. The district court did show leniency in one
instance, however, by ordering that Brewer only serve 90 days in jail before being placed
on probation.

On appeal, Brewer acknowledges that the district court had the authority to run his
sentences consecutively as opposed to concurrently but argues that the district court
abused its discretion by doing so. See K.S.A. 2018 Supp. 21-6606(a) (sentences imposed
for different crimes on the same day "shall run concurrently or consecutively as the court
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directs"); K.S.A. 2018 Supp. 21-6606(b) (sentence for person who commits new crime
while on probation for a misdemeanor shall be served "concurrently with or
consecutively to" sentence for which person was on probation "as the court directs");
State v. Mosher, 299 Kan. 1, 2, 319 P.3d 1253 (2014) (district court has general
discretion to determine whether sentence should run concurrent with or consecutive to
another sentence). Judicial discretion is abused if the action (1) is arbitrary, fanciful, or
unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial
court; (2) is based on an error of law; or (3) is based on an error of fact. State v. Jones,
306 Kan. 948, 957, 398 P.3d 856 (2017). Brewer bears the burden to show an abuse of
discretion by the district court. See State v. Rojas-Marceleno, 295 Kan. 525, 531, 285
P.3d 361 (2012).

Given that neither party contests the district court's discretion to run the sentences
for each count consecutively, as well as to order the sentence in the present case to run
consecutive to his municipal misdemeanor sentences, we are left to examine the district
court's exercise of discretion. Although Brewer points to statements from the victim in
mitigation, given the district court's expressed concern about Brewer's history of
violence, Brewer fails to convince us that no reasonable person would have taken the
view of the district court. Thus, we cannot say that the district court's sentencing
constitutes an abuse of discretion.

Affirmed.