Opinion
No. 107,360.
2013-06-14
STATE of Kansas, Appellee, v. Alan Matthew KEITH, Appellant.
Appeal from Johnson District Court; Sara Welch, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
MEMORANDUM OPINION
PER CURIAM:
Alan Matthew Keith 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, asking this court to affirm Keith's sentence. We have reviewed the record on appeal and find no error in the sentence imposed by the district court.
Keith first contends the use of his criminal history for sentencing purposes in district court case No. 11DV882, without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for his offense of aggravated battery 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 Keith and is without merit. See State v.. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002).
Keith also contends the district court abused its discretion by denying his request for a downward dispositional sentencing departure. The district court sentenced Keith to a presumptive term of imprisonment for his offense. 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 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][l] eliminates appeals of presumptive sentences).
Affirmed in part and dismissed in part pursuant to Rule 7.041a (2012 Kan. Ct. R. Annot. 62).