Opinion
No. 107,261.
2012-12-21
STATE of Kansas, Appellee, v. Devin K. LUCKETT, Appellant.
Appeal from Montgomery District Court; Frederick William Cullins, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
MEMORANDUM OPINION
PER CURIAM:
Devin K. Luckett filed a motion for summary disposition of his sentencing appeal pursuant to K.S.A.2011 Supp. 21–6820(g) and (h). The State did not respond to Luckett's motion. We have reviewed the record on appeal and find no error in the sentences imposed by the district court.
Luckett first contends the use of his criminal history for sentencing purposes in district court case No. 10CR437I, without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for his primary offense of unlawful cultivation or distribution of a controlled substance 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 Luckett and is without merit. See State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002).
Luckett also contends the district court abused its discretion by denying his request for a nonprison sentence when he was in a border box on the sentencing grid and by denying his motion for a downward dispositional and/or durational sentencing departure. The district court sentenced Luckett to presumptive terms of imprisonment for his offenses. We are without jurisdiction to consider this issue. See K.S.A.2009 Supp. 21–4705(d) (any decision made by district court regarding imposition of an optional nonprison sentence shall not be subject to appeal); K.S.A.2011 Supp. 21–6820(c)(1) (appellate court shall not review any sentence within the presumptive sentencing range for the crime); see also 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 (2011 Kan. Ct. R. Annot. 60).