Opinion
No. 108,018.
2013-11-27
STATE of Kansas, Appellee, v. Marcus Winston COSGROVE, Appellant.
Appeal from Shawnee District Court; David Debenham, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
MEMORANDUM OPINION
PER CURIAM:
Marcus W. Cosgrove filed a motion for summary disposition of his sentencing appeal pursuant to K.S.A.2012 Supp. 21–6820(g) and (h). The State responded to Cosgrove's motion, asking this court to dismiss Cosgrove's challenges to his presumptive sentence and to affirm his sentence. We have reviewed the record on appeal and find no error in the sentence imposed by the district court.
Cosgrove first contends the use of his criminal history for sentencing purposes in district court case No. 11CR1662, without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for his criminal threat offense in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This issue has already been decided adversely to Cosgrove and is without merit. See State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002).
Second, Cosgrove asserts the district court abused its discretion by denying his request for a downward dispositional sentencing departure. The district court sentenced Cosgrove to a presumptive term of imprisonment for his conviction. We are without jurisdiction to consider this issue. See K.S.A.2012 Supp. 21–6820(c)(1) (appellate court shall not review any sentence within the presumptive sentence for the crime); State v. Huerta, 291 Kan. 831, 837, 247 P.3d 1043 (2011) (reaffirming that K.S.A. 21–4721[c] [1] eliminates appeals of presumptive sentences).
Cosgrove further contends that his constitutional rights were violated when the district court sentenced him to the aggravated term of incarceration within the applicable grid block for his criminal theft conviction. Because Cosgrove received a presumptive sentence for his conviction, we are without jurisdiction to consider this issue. See K.S.A.2012 Supp. 21–6820(c)(1); State v. Johnson, 286 Kan. 824, 840–52, 190 P.3d 207 (2008) (judge has discretion to sentence defendant to any term within the presumptive grid block); see also Huerta, 291 Kan. 831, Syl. ¶ 3, (reaffirming that appellate court does not review claims on direct appeal that defendant's presumptive sentence has a constitutionally based infirmity).
Affirmed in part and dismissed in part pursuant to Rule 7.041A (2012 Kan. Ct. R. Annot. 62).