Opinion
No. 107,864.
2013-11-27
STATE of Kansas, Appellee, v. Michael WALTERS, Appellant.
Appeal from Labette District Court; Robert J. Fleming, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
MEMORANDUM OPINION
PER CURIAM:
Michael Walters filed a motion for summary disposition of his sentencing appeal pursuant to K.S.A.2012 Supp. 21–6820(g) and (h). The State did not respond to Walters' motion. We have reviewed the record on appeal and find no error in the sentence imposed by the district court.
Waiters first contends the use of his criminal history for sentencing purposes in district court case No. 10CR113, without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for his offense of rape 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 Walters and is without merit. See State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002).
Second, Walters asserts 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 rape conviction. Because Walters received a presumptive sentence for this 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 State v. Huerta, 291 Kan. 831, Syl. ¶ 3, 247 P.3d 1043 (2011) (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).