¶1I respectfully dissent from the majority opinion.
¶2At Charles Foster’s plea hearing, the district court went through an extensive interchange with him to make sure that he understood his plea and the implications of it:
“The Court: Okay. Count I of the Second Amended Information, Mr. Foster, alleges that on or about the 15th of February of this year you did unlawfully, feloniously, and intentionally place the person of Angel Brown in reasonable apprehension of immediate bodily harm with a deadly weapon, by putting a loaded gun against her head. This is a charge of aggravated assault. It is what is known as a Severity Level 7 person felony. There is a sentencing range of between 11 months and 34 months, and a fine of up to $100,0000 possible. Are you aware of that?
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: How do you plead to the charge, sir?
“THE DEFENDANT: No contest.
“THE COURT: Do you understand by pleading no contest to this charge that you give up your right to a trial either to this Court or to a jury?
*391"THE DEFENDANT: Yes, I do, Your Honor.
“THE COURT: And in doing that you give up your right to have the State prove your guilt beyond a reasonable doubt?
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: You understand that you give up your right to confront and cross-examine the State’s witnesses?
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: You give up your right to subpoena witnesses to testify for yourself?
"THE DEFENDANT: Yes, Your Honor.
“THE COURT: And you give up your right to testify or to choose not to yourself. Do you understand that?
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: Further, you would give up your right to appeal a conviction of this case if I find you guilty.
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: And you understand that if the State provides a factual basis for this charge based upon your plea that I will find you guilty?
“THE DEFENDANT: Yes, Your Honor.”
¶3Foster did not idly waive these rights as the majority claims; he was given every opportunity to respond to the questions and did so deliberately and voluntarily.
¶4After this exchange, the State gave an account of the facts which were the basis of the charge:
“Your honor, in the early morning hours of February 15th of this year Mr. Foster and his girlfriend Miss Brown had been drinking in a bar in Manhattan. They had a dispute over a cell phone. Miss Brown returned to the apartment they shared. She was in the restroom when Mr. Foster entered the home and they started yelling. He put a loaded gun to her head. He held the gun there. Her child was awakened by the noise, peeked through the bathroom door, saw what was happening, went to the kitchen, grabbed a butcher knife, came back and threatened Mr. Foster with a butcher knife at which point he then took the loaded gun away from Miss Brown’s head. He took the loaded gun, emptied the magazine in the bedroom, told her daughter that she did not see anything and did not hear anything. This happened ... in Manhattan, Riley County, Kansas.”
¶5The district court clarified that Foster’s actions put Brown in immediate apprehension of bodily harm, and then found there was a factual basis for Foster’s voluntary plea.
¶6On April 28, 2006, a plea agreement was signed by Foster, his attorney, and the State, whereby Foster agreed to plead nolo contendere to aggravated assault and the State agreed to the following:
*392“2. The State agrees to dismiss the remaining charges herein and case #06CR39 with prejudice and to file no additional charges arising out of the same transaction or series of transactions.
“3. The State further agrees, specifically, to not file any charges against the defendant for letters to or contacts with the victim.
“4. The State further agrees that if the defendant’s criminal history score is anything other than ‘A’ or ‘B’, they will not seek jail or prison time. The State further agrees that it will not seek prison if the defendant was on bond, probation or parole at the time of the commission of the crime he is pleading to.”
¶7The plea agreement then states: “There are no other agreements. . . . Other than what appears above, there have been no promises or inducements made to the defendant to get him to enter into this agreement.”
¶8After the plea agreement was signed and before sentencing, Foster filed a motion for a dispositional departure.
¶9Foster’s only argument on appeal is that “[t]he State violated the plea agreement by arguing that the district court should not impose the optional nonprison sanction described in K.S.A. 21-4704(h).” Foster’s argument is totally without merit because the State never argued that the district court should not impose the nonprison sentence. The State followed the plea agreement and recommended probation for Foster.
¶10At sentencing, the State made comments in response to Foster’s motion for a departure sentence and his motion to strike the Court Appointed Special Advocate (CASA) report from the record. The State pointed out that Foster told the CASA interviewer that the gun he had used in the assault was not loaded; however, the sworn statements from the witnesses said it was loaded. In Foster’s motion for a dispositional departure, Foster stated that “[t]he State has no objection to the Defendant’s Motion for Dispositional Departure.” When responding to this motion at sentencing, the State said:
“Additionally, in regards to the motion for dispositional departure, No.3, pursuant to the plea agreement the State agreed to probation, Your Honor, that’s absolutely correct. The State did agree to probation in this case and that is our recommendation. However, No.4, the State has no objection to the defendant’s motion for dispositional departure is not absolutely correct. I don’t understand — the State does not find a basis for a dispositional departure. According to K.S.A. 21-4704 *393the sentencing court may impose an optional nonprison sentence only upon the making of a finding on the record that a nonprison sanction will serve community safety interests by promoting offender reformation. Furthermore, the statute provides that any optional nonprison sentence is not a departure but rather a decision left to the court and is not subject to appeal, so I don’t think a dispositional departure is actually appropriate since the statute specifically lays out what actions the court can take if they do not sentence to prison.”
¶11The majority concludes at the beginning of its opinion that “[t]he prosecutor substantially violated the plea agreement by undercutting the required finding for granting probation without providing any support for the recommendation of probation.” Because the State did not provide support for its probation recommendation, the majority finds that the State breached the plea agreement and thereby denied Foster due process. The majority concludes that the State was required under the plea agreement to make a statement at sentencing “that community safety interests would be served or that the offender reformation would be promoted by granting probation to Foster.” There is nothing in the plea agreement that obligates the State to guarantee, or even suggest, that safety interests would be served or that Foster’s reformation would be promoted by granting him probation. The majority ignores what the State agreed to do in the plea agreement and infers a duty on the State that was not part of the plea agreement.
¶12The majority discusses State v. Hill, 247 Kan. 377, 799 P.2d 997 (1990), claiming that the prosecutor did not make any negative statements at the sentencing hearing when it recommended that the judge follow the plea agreement. I disagree. The prosecutor said:
“ ‘[Tjhose investigations were conducted in a thorough and competent, complete manner, of setting out the recommendations as entered into at the time of the plea bargain between the prosecution, the State.
“ ‘Further, Your Honor, I would like to state that the victim impact statement of that report made it very clear that the victims’ positional are that no amount of time in this case is going to be enough time for the damage and for the crimes that have been committed against the State of Kansas, against the family of [D.B.], against [D.B.], and against [V.F.j. But that the Court is in a position, having reviewed this material, having heard the statements of fact which support the pleas of guilty and the convictions in this case, to at this time render a proper and appropriate sentence.’ ”
¶13*394In Hill, as with the instant case, the defendant did not object to the statements made by the State. Both sentencing courts made it clear in Hill, and in this case, that it is not bound by the plea agreement or the State’s recommendation. What is important in Hill, and in this case, is the fact that the same judge conducted both the plea and sentencing hearings.
¶14The majority cites State v. McDonald, 29 Kan. App. 2d 6, 26 P.3d 69 (2001), to support its conclusion that a breach of the plea agreement occurred in this case. In McDonald, a panel of this court remanded McDonald’s case to the district court for resentencing before a different judge. The McDonaldcourt put a great deal of emphasis on the fact that one judge presided over the plea hearing and a different judge presided over the sentencing hearing. The court concluded that the sentencing judge “was not informed of the specifics of the plea agreement.” 29 Kan. App. 2d at 10. In this case, the same judge presided over both the plea and the sentencing hearings, which made him well aware of the specifics of the plea agreement. In addition, Foster’s record on appeal contains a full transcript of the preliminary hearing which details the crime Foster committed with a gun.
¶15A federal case from another circuit, United States v. Hall, 515 F.3d 186, 198 (3d Cir. 2008), is cited by the majority for tire proposition that when a plea agreement is breached, the defendant is denied due process, even if the sentencing judge is not influenced by the State’s presentation. In the Hallcase, the facts are very distinguishable from the instant case; however, the court in Hallfound there was no breach even though the government made many statements that could have been construed as a breach of the plea agreement. It is hard to imagine how this case can be used as support for the majority opinion.
¶16The majority also cites United States v. Canada, 960 F.2d 263 (1st Cir. 1992), as support for its conclusion, stating that the “defendant’s waiver of key rights was induced by the State’s promised recommendation, and the defendant is entitled to receive the benefit of that bargain.”
¶17Initially, it is important to note that Canadais a federal circuit case and is not binding in Kansas. However, the plea agreement in *395Canadaclearly noted that the “agreement does not and cannot bind the sentencing judge.” In this case, Foster was told at the plea hearing that the plea agreement does not bind the sentencing judge. Foster was specifically questioned about his understanding of this issue:
“THE COURT: The plea agreement which has been handed to me contains certain recommendations which will be made at the time of sentencing in this case. Do you understand that those recommendations are not binding on this court?
“THE DEFENDANT: Yes Your Honor.”
¶18More significant is that the facts in Canadadiffer greatly from the facts here. In Canada, the government agreed to recommend that the court sentence Canada to 36 months’ incarceration. At sentencing, the government attorney did not recommend that the court impose the 36-month sentence; instead, the government attorney asked the court to impose a “substantial period of incarceration.” 960 F.2d at 269. In addition, the government attorney requested an order of full restitution, which was not part of the plea agreement.
¶19At sentencing in this case, the State recommended that the court follow the plea agreement and order probation: “[T]he State does recommend 27 months underlying, immediate probation for a period of 24 months.” This was not a breach of the plea agreement; it was exactly what the State agreed to recommend. As the majority points out, when a firearm is used to commit a felony, the court may impose a nonprison sentence only “upon making a finding on the record that the nonprison sanction will serve community safety interests by promoting offender reformation.” The comment made by the State that the majority criticizes are exact words from K.S.A. 21-4704b(f)(3). These words can in no way be construed as contradicting the plea agreement and would have had little effect on the district court, which is bound to follow the law.
¶20In sentencing Foster, the district judge stated:
“With regard to the charge with which this defendant was — of which this defendant was convicted— aggravated assault with a handgun — that is deeply concerning to the Court. You explained the defendant’s actions because — and it’s not excusing him, and that’s true there’s no excuse for it, but you explained it because the *396defendant was intoxicated at the time. There’s no more dangerous combination than alcohol and a loaded handgun as far as I’m concerned. Prior to sentencing guidelines this would be a mandatory prison sentence because a handgun was involved. This defendant has earned his way through eight convictions in the State of Ohio — prior convictions in the State of Ohio to the criminal history that he apparently has which makes him presumptive prison. The Court finds no basis to deviate from the presumptive prison and I’m going to decline to go along with the State’s recommendation for probation.”
¶21The district court gave compelling reasons for not following the plea agreement. In addition, Foster received a presumptive guidelines sentence. An appellate court lacks jurisdiction to consider a presumptive guidelines sentence. See State v. Flores, 268 Kan. 657, 659, 999 P.2d 919 (2000).
¶22Foster’s appeal should either be dismissed, or the district court’s decision should be affirmed.