Opinion
112,163.
04-24-2015
STATE of Kansas, Appellee, v. Michael ARINWINE, Jr., Appellant.
MEMORANDUM OPINION
PER CURIAM.
Michael A. Arinwine, Jr., appeals his sentence following his convictions of possession of marijuana with intent to distribute and criminal possession of a firearm. We granted Arinwine's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State filed a response and requested that the district court's judgment be affirmed.
The procedural background of this case is somewhat confusing. On January 13, 2014, Arinwine pled guilty to one count of possession of marijuana with intent to distribute and one count of criminal possession of a firearm. On February 27, 2014, the district court granted Arinwine's motion for a durational departure and imposed a controlling sentence of 47 months' imprisonment from the presumptive sentence of 80–84–89 months' imprisonment for the primary offense of conviction.
On March 11, 2014, Arinwine filed a pro se motion for sentence modification. The district court scheduled the motion for hearing on April 1, 2014. The State filed a written response to the motion and asserted that the district court lacked jurisdiction to modify Arinwine's lawful sentence.
On March 18, 2014, the district court approved an order allowing Arinwine to file a late notice of appeal. On that same date, Arinwine filed a notice of appeal indicating his intention “to appeal the sentence and all adverse rulings entered by the District Court.”
In a journal entry dated April 1, 2014, the district court summarily denied Arinwine's motion to modify sentence. The district court adopted the State's argument that the court lacked jurisdiction to modify Arinwine's lawful sentence.
On August 7, 2014, this court granted Arinwine's motion to docket his appeal out-of-time. On January 20, 2015, this court granted Arinwine's motion for summary disposition of sentencing appeal.
We note initially that this court has jurisdiction to consider Arinwine's appeal from his departure sentence. K.S.A.2014 Supp. 21–6820(d) ; see State v. Looney, 299 Kan. 903, 908–09, 327 P.3d 425 (2014) ; However, Arinwine asserts no claim that the district court erred by imposing the departure sentence of 47 months' imprisonment. An issue not briefed by the appellant is deemed waived and abandoned. State v. Boleyn, 297 Kan. 610, 633, 303 P .3d 680 (2013).
Arinwine makes only two claims in his motion for summary disposition. First, Arinwine claims that the district court abused its discretion by denying his motion for modification. But we lack jurisdiction to consider this particular claim. Arinwine filed his notice of appeal from his sentence on March 18, 2014, and the notice of appeal did not indicate his intention to appeal from the denial of his motion for modification. In fact, the district court did not deny Arinwine's motion for modification until April 1, 2014, and Arinwine did not file a subsequent notice of appeal from that ruling. An appellate court only obtains jurisdiction over the rulings identified in the notice of appeal. State v. Garza, 295 Kan. 326, 329, 286 P.3d 554 (2012).
In any event, as Arinwine's counsel acknowledges in the motion for summary disposition, a district court lacks authority to modify a lawfully imposed sentence except to correct arithmetic or clerical errors. See K.S.A.2014 Supp. 21–6820(i) ; State v. Miller, 260 Kan. 892, 900, 926 P.2d 652 (1996). Thus, the district court did not err by denying Arinwine's motion for modification.
Next, Arinwine asserts that the district court erred by increasing his sentence based on his criminal history that was not charged in the complaint and proven to a jury beyond a reasonable doubt. But as Arinwine acknowledges, our Supreme Court has rejected this claim in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the Supreme Court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). There is no indication that our Supreme Court is departing from its position in Ivory. Thus, Arinwine's sentencing claim fails.
Affirmed.