Opinion
112,268.
07-31-2015
STATE of Kansas, Appellee, v. Miguel A. MARTINEZ, Appellant.
MEMORANDUM OPINION
PER CURIAM.
In this appeal from a resentencing, Defendant Miguel Martinez contends the Wyandotte County District Court erred in calculating his criminal history using a conviction he received after his original sentence but before his resentencing. The Kansas Supreme Court's decision in State v. Patry, 266 Kan. 108, 112–13, 967 P.2d 737 (1998), forecloses his argument. We, therefore, affirm the district court.
In 2007, a jury convicted Martinez of attempted rape. On January 28, 2008, he was sentenced to life in prison without possibility of parole for 25 years. Martinez appealed to the Kansas Supreme Court, which affirmed his conviction and sentence. See State v. Martinez, 290 Kan. 992, 236 P.3d 481 (2010).
Shortly after entering prison, Martinez committed an aggravated battery of another inmate. He was convicted of that offense on September 4, 2008, in Reno County District Court.
On July 27, 2011, Martinez filed a habeas corpus motion under K.S .A. 60–1507 in this case essentially claiming the right to be resentenced to a severity level 1 person felony for the attempted rape based on the rule of lenity stated in State v. Horn, 288 Kan. 690, 206 P.3d 526 (2009). See Martinez v. State, No. 109,471, 2014 WL 802167, at *1 (Kan.App.2014) (unpublished opinion). The majority of a panel of this court agreed and ordered Martinez to be resentenced for the attempted rape. Martinez, 2014 WL 802167, at *4.
On remand to the district court, the State included the Reno County conviction for aggravated battery in Martinez' criminal history. Martinez objected in the district court because both that crime and the resulting conviction occurred after the conviction in this case. At the resentencing hearing on June 18, 2014, the district court overruled Martinez' objection and used the aggravated battery conviction in determining Martinez had a criminal history classification of D.
Martinez filed a timely notice of appeal from the sentence. He has since filed a motion for summary disposition of this appeal without briefing, as provided in Kansas Supreme Court Rule 7.041 A(a) (2014 Kan. Ct. R. Annot. 66). The State filed a response generally agreeing that summary disposition of the appeal was appropriate.
Martinez claims that the use of his 2008 conviction for aggravated battery in resentencing him for the 2007 attempted rape conviction violates his due process rights and constitutes a vindictive sentence. But in his request for summary disposition, Martinez acknowledges Patry as controlling authority adverse to his position.
In Patry, the Kansas Supreme Court concluded a defendant's conviction between his or her sentencing and resentencing could be scored for criminal history purposes without violating due process rights or being impermissibly vindictive. 266 Kan. at 112–13. The court pointed out the new conviction was a materially changed circumstance resulting from the defendant's own actions, resulting in a higher criminal history score and a longer presumptive sentence. 266 Kan. at 112–13. Under K.S.A.2014 Supp. 21–6810(a), Martinez' aggravated robbery conviction was properly included in his criminal history on resentencing.
In sum, the district court properly determined Martinez' criminal history in conformity with the applicable statute and the governing caselaw.
Affirmed.