Opinion
No. 106,016.
2012-10-19
STATE of Kansas, Appellee, v. Christopher Harley SIMMS, Appellant.
Appeal from Johnson District Court; James Franklin Davis, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Andrew J. Dufour, legal intern, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; James Franklin Davis, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Andrew J. Dufour, legal intern, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ATCHESON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Christopher Harley Simms appeals from his sentence for one count of forgery and one count of felony theft. On appeal, Simms contends that the trial court improperly altered his sentence in the journal entry from the sentence that was pronounced from the bench. Simms also argues that the trial court violated his constitutional rights when it used his prior convictions to increase his sentence without proving them to a jury. Finding no error, we affirm Simms' sentence.
Simms was charged with two counts of forgery, one count of theft, and one count of possession of drug paraphernalia. Simms pled guilty to one count of forgery and one count of felony theft in exchange for the State dismissing the remaining two counts. In the plea agreement, the parties agreed that the counts would run consecutive for a total sentence of 18 months.
At sentencing, the trial judge discussed the plea agreement with the parties. The trial judge asked if the intent of the plea agreement was an 18–month sentence. Simms' attorney confirmed that the plea agreement required an 18–month sentence. In sentencing Simms, the trial judge stated:
“[T]he parties have agreed to an 18–month sentence in this case.... All right. Mr. Simms, I'm going to maintain the spirit of plea negotiations. When you leave today, you will have a[n] 18–month sentence. I'm going to impose 10 months on the theft charge in Count I and eight months on the forgery in—excuse me—Count III, and Count I is eight-month sentence on the forgery offense.”
Did the Sentencing Journal Entry State the Sentence Pronounced by the Trial Judge at Sentencing?
On appeal, Simms argues that at sentencing the trial court stated that his forgery sentence would run concurrent to his theft sentence. Simms contends that the journal entry listing his sentences as consecutive rather than concurrent is incorrect.
Simms concedes that the trial judge told him that when he left the sentencing hearing he would have an 18–month sentence; however, Simms contends that after stating that, the trial judge said his sentences would run concurrent. Simms relies on the following statement by the trial judge: “When you leave today, you will have a[n] 18–month sentence. I'm going to impose 10 months on the theft charge in Count I and eight months on the forgery in—excuse me—count III, and concurrent one is eight-month sentence on the forgery offense.” (Emphasis added.) Simms maintains that based on this language from the sentencing transcript, the trial court specifically ordered his sentences to run concurrent.
The State responds by arguing that the trial judge intended to sentence Simms to an 18–month prison term. First, the State points out that an amended transcript was prepared correcting the language that Simms relies on. In the corrected transcript, the word “concurrent” was replaced with the word “count.” The State also notes to numerous places in the record to show that Simms received a sentence of 18 months. First, the journal entry signed by the parties shows that Simms was sentenced to a prison term of 18 months. Second, the trial judge's bench notes reflect that Simms was sentenced to a prison term of 18 months and that his sentences were to run consecutive. And third, in Simms' motion for credit for time served, Simms stated the following: “Defendant was sentenced on January 5th, 2011 to 10 months in prison on the Theft conviction, and 8 months prison on the Forgery conviction. The sentences on each count are to run consecutively to each other.”
Based on the record, it is readily apparent that Simms was sentenced to a prison term of 18 months in prison and that his sentences were to run consecutive rather than concurrent. Simms conceded this point in his motion for credit for time served and the corrected transcript removes any further doubt about the sentence pronounced from the bench. Thus, because the sentence pronounced from the bench was correctly recorded in the sentencing journal entry, Simms' argument fails. Did the Trial Court Violate Simms' Sixth and Fourteenth Amendment Rights when It Used Simms' Prior Convictions to Increase His Sentence Without Proving Them to a Jury?
In his final issue, Simms argues that the trial court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L. Ed 2d 435 (2000), when it sentenced him based in part on his criminal history without first requiring his criminal history be proven beyond a reasonable doubt to a jury. Simms concedes that our Supreme Court has already decided this issue against him. See State v. Ivory, 273 Kan. 44, 45–48, 41 P .3d 781 (2002).
This court is duty bound to follow our Supreme Court precedent absent some indication that the court is departing from its earlier position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). There is no indication that our Supreme Court is departing from its position on this issue. Consequently, the trial court did not violate Apprendi when it considered Simms' criminal history without requiring the criminal history be proven beyond a reasonable doubt to a jury.
Affirmed.