Opinion
No. 109,749.
2013-11-8
STATE of Kansas, Appellee, v. Julian D. CLOPTON, Appellant.
Appeal from Lyon District Court; W. Lee Fowler, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
Before GREEN, P.J., pierron, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Julian D. Clopton appeals his sentence from the Lyon County District Court. He contends that the district court imposed consecutive sentences for multiple convictions arising from multiple counts within an information, complaint, or indictment and the total sentence imposed—45 months—exceeds twice the base sentence—21 months—in violation of K.S.A.2012 Supp. 21–6819(b)(4). Clopton also contends the use of his prior convictions to increase his sentence, without first putting them to a jury, violated his constitutional rights as elucidated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Clopton has filed a timely motion for summary disposition of sentencing appeal pursuant to Kansas Supreme Court Rule 7.041A (2012 Kan. Ct. R. Annot. 62). The State has filed a response generally agreeing that summary disposition of the appeal was appropriate. We granted the motion for summary disposition.
Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Ardry, 295 Kan. 733, 735, 286 P.3d 207 (2012).
“The total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint or indictment cannot exceed twice the base sentence.” K.S.A.2012 Supp. 21–6819(b)(4). This double rule does not apply to misdemeanor sentences. State v. Huff, 277 Kan. 195, 197–98, 83 P.3d 206 (2004).
The district court stated its belief was the total sentence could not be double the maximum penalty that could have been given for the base offense. However, the statute clearly states that the total sentence “cannot exceed twice the base sentence.” (Emphasis added.) K.S.A.2012 Supp. 21–6819(b)(4). Clopton was not sentenced to 23 months; Clopton was sentenced to 21 months. Twice the base sentence is 42 months, and Clopton's controlling sentence of 45 months thus violates K.S.A.2012 Supp. 21–6819(b)(4). Accordingly, we must vacate the sentence and remand to the district court with instructions to resentence in accordance with K.S.A.2012 Supp. 21–6819(b)(4).
Clopton also argues the use of his prior convictions to prove criminal history violated his constitutional rights. In support of his argument, Clopton relies on Apprendi. This same argument has been directly rejected, however, in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), and, absent any indication that the Kansas Supreme Court is departing from that precedent, this court is duty bound to follow its conclusion. The Kansas Supreme has reaffirmed its holding in Ivory as recently as September 2013. See State v. Novotny, 297 Kan. ––––, 307 P.3d 1278, 1290 (2013). Because we have no indication that the court is departing from its previous holding in Ivory, Clopton's argument must fail.
Affirmed in part, vacated in part, and remanded with directions.