Opinion
No. 107,419.
2013-04-19
STATE of Kansas, Appellee, v. Derrick Alan BUELL, Appellant.
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
MEMORANDUM OPINION
PER CURIAM:
Derrick Alan Buell 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 dismiss the presumptive sentence issue and affirm Buell's sentence. We have reviewed the record on appeal and find no error in the sentence imposed by the district court.
Buell first contends the use of his criminal history, including his juvenile adjudications, for sentencing purposes in district court case No. 09CR23, without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for his offense of possession of stolen property 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 Buell and is without merit. See State v. Fischer, 288 Kan. 470, Syl. ¶ 3, 203 P.3d 1269 (2009) (juvenile adjudications final on June 20, 2008, the date the court filed In re L.M., 286 Kan. 460, 186 P.3d 164 [2008], may be included in an offender's criminal history score); State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002), cert. denied537 U.S. 1104 (2003); State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002). Buell's juvenile adjudications were final prior to June 20, 2008.
Buell also contends the district court abused its discretion by denying his request for a downward dispositional sentencing departure. The district court sentenced Buell 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 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).
Affirmed in part and dismissed in part pursuant to Rule 7.041A (2012 Kan. Ct. R. Annot. 62).