State v. Eichelberger

Opinion

NOT DESIGNATED FOR PUBLICATION

No. 129,675

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

BENJAMIN ALLEN EICHELBERGER, Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRYSTAL KRIER, judge. Submitted without oral argument. Opinion filed August 28, 2026. Affirmed.

Submitted by the parties for summary disposition under K.S.A. 21-6820(g) and (h).

Before HILL, P.J., SCHROEDER and COBLE, JJ.

HILL, J.: Benjamin Eichelberger appeals the denial of his dual motions for a dispositional departure and a durational departure. We granted his motion for summary disposition of his appeal under Supreme Court Rule 7.041A (2026 Kan. S. Ct. R. at 48) and will rule on his motion without the benefits of briefing.

Eichelberger pled no contest to one count of stalking after a prior conviction of stalking, a severity level five person felony. All remaining charges were dismissed. With a criminal history score of D, his presumptive prison sentencing range was between 50 and 55 months. At sentencing, Eichelberger moved for a downward dispositional departure to probation, and a downward durational departure due to his military service, combat injuries, and acceptance of criminal responsibility for his acts.

2

The court denied the dispositional departure motion, but granted his durational departure motion. In granting this departure, the court relied on Eichelberger's military service and acceptance of responsibility because he entered a no contest plea. The court sentenced Eichelberger to 45 months in prison.

On appeal, Eichelberger argues that the district court abused its discretion by refusing to grant a dispositional departure to probation and by not granting a larger durational departure. He continues to claim the sentencing court's conclusion is unreasonable.

The controlling law is well settled.

Either the State or a defendant may appeal a sentence that departs from the presumptive sentence. K.S.A. 21-6820(a). When appealed, our appellate courts review decisions on departure motions for an abuse of discretion. See State v. Morley, 312 Kan. 702, 711, 479 P.3d 928 (2021). A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Younger, 320 Kan. 98, 137-38, 564 P.3d 744 (2025).

A sentencing court must impose the presumptive sentence set by the sentencing guidelines unless the court finds "substantial and compelling reasons" to impose a departure sentence. K.S.A. 21-6815(a). "Substantial means 'real, not imagined, and of substance, not ephemeral.' And a compelling reason is one that 'forces the court, by the facts of the case, to abandon the status quo and to venture beyond the sentence that it would ordinarily impose.' [Citation omitted.]" State v. Montgomery, 314 Kan. 33, 36, 494 P.3d 147 (2021). We add that the mere presence of mitigating factors does not compel a sentencing court to depart from a presumptive sentence. See State v. Fowler, 315 Kan. 335, Syl. ¶ 2, 508 P.3d 347 (2022).

3

Our review reveals that the district court weighed both of the mitigating factors that Eichelberger cites in this appeal—military service and his acceptance of responsibility—when it granted a durational departure to 45 months. But the district court declined to depart further. This is a valid exercise of sentencing discretion.

As the court noted, Eichelberger had stalked his girlfriend before this charge of stalking his wife. He had a problem following court orders; after all, this was his second charge for stalking, and he had been charged with five counts of violating a protective order. We must deny any relief here because Eichelberger does not show us that no reasonable person would agree with the district court's decision. To the contrary, the district court's decision is reasonable.

Affirmed.