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State v. Mosher

Supreme Court of Kansas

March 14, 2014

STATE OF KANSAS, Appellee,
v.
SCOTT MICHAEL MOSHER, Appellant

Appeal from Shawnee District Court; MARK S. BRAUN, judge.

SYLLABUS

BY THE COURT

Generally, it is within a sentencing judge's sound discretion to determine whether a sentence should run concurrent with or consecutive to another sentence.

Shawn E. Minihan, of Kansas Appellate Defender Office, was on the brief for appellant.

Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

LUCKERT, J. BEIER, J., not participating.

Page 1254

OPINION

Luckert, J.:

Scott Michael Mosher appeals his sentences, arguing the sentencing judge abused his discretion by not following the parties' recommendation that his sentences for felony murder and conspiracy to commit first-degree murder be served concurrently. We reject his argument. It has long been understood that a sentencing judge is not bound by the parties' sentencing recommendations and has discretion to order sentences to be served consecutively. On appeal, this exercise of discretion will not be overturned if reasonable people could agree with the sentencing judge's decision. Under this standard and the facts of this case, Mosher's appeal is without merit, and we affirm.

Facts and Procedural Background

Mosher's sentences were imposed after he accepted a plea agreement offered by the State. In the plea agreement, the State agreed to dismiss an unrelated case, to dismiss some counts in a second unrelated case, and to recommend the court impose concurrent sentences for the two convictions in this case.

At the plea hearing, the State offered a factual basis for the plea, indicating Mosher discussed with his mother and two other individuals a plan to murder his mother's husband, Jerry Eberhardt. [299 Kan. 2] Mosher obtained a gun and, on the evening of the murder, rode over to the Eberhardt home with two of his conspirators. He met his mother in the garage where he confirmed she wanted to proceed with the plan. Mosher and another man entered the home, while the other conspirator remained in the car. In an apparent effort to cover the noise of people moving around in the house, Mosher's mother turned the water on in a bathroom near the bedroom in which Eberhardt was located. Mosher and the other man then walked down a hallway, entered the bedroom, and Mosher shot Eberhardt in the head.

Mosher did not challenge the State's factual statement and entered a guilty plea. The court accepted the State's proffered facts as ...


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