Opinion
No. 107,289.
2012-10-19
STATE of Kansas, Appellee, v. Khalil Mohammed ISLAM, Appellant.
Appeal from Shawnee District Court; David B. Debenham, Judge. Opinion filed October 19, 2012. Affirmed in part and dismissed in part.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
MEMORANDUM OPINION
PER CURIAM:
Khalil Mohammed Islam filed a motion for summary disposition of his sentencing appeal pursuant to K.S.A.2011 Supp. 21–6820(g) and (h). The State responded, asking this court to dismiss Islam's presumptive sentence issue and affirm his sentence. We have reviewed the record on appeal and find no error in the sentence imposed by the district court.
Islam first contends the use of his criminal history for sentencing purposes in district court case No. 10CR1571, without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for his offense of felony theft 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 Islam and is without merit. See State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002).
Islam also contends the district court abused its discretion by denying his request for a downward dispositional sentencing departure. The district court sentenced Islam to a presumptive term of imprisonment for his theft offense. We are without jurisdiction to consider this issue. See K.S.A.2011 Supp. 21–6820(c)(1) (appellate court shall not review any sentence within the presumptive sentencing range for the crime); State v. Huerta, 291 Kan. 831, 837, 247 P.3d 1043 (2011) (reaffirming that K.S.A. 21–4721(c)(1), now at K.S.A.2011 Supp. 21–6820(c)(1), eliminates appeals of presumptive sentences).
Affirmed in part and dismissed in part pursuant to Rule 7.041a (2011 Kan. Ct. R. Annot 60).