Opinion
No. 108,431.
2013-10-25
STATE of Kansas, Appellee, v. Scott Paul CORDELL, Appellant.
Appeal from Saline District Court; Patrick H. Thompson, Judge. Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Charles Ault–Duell, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Patrick H. Thompson, Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Charles Ault–Duell, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Scott Paul Cordell appeals following his guilty plea to aggravated escape from custody. He argues: (1) The district court's classification of two of his 1986 burglary convictions as person felonies violated his constitutional rights because a jury should have been required to find beyond a reasonable doubt that the burglaries were of dwellings; (2) the district court erred in using his prior convictions and juvenile adjudications to increase his sentence without requiring them to be proved to a jury beyond a reasonable doubt; and (3) the length of his prison term listed in the journal entry of judgment does not conform to the sentence pronounced from the bench.
Facts
In March 2012, Cordell pled guilty to aggravated escape from custody. The presentence investigation report indicated that Cordell's criminal history score was A because he had a combination of at least three prior juvenile adjudications and/or adult convictions of person felonies. See K.S.A.2011 Supp. 21–6809. Accordingly, Cordell faced a presumptive prison sentence ranging from 19 to 23 months in prison. Prior to sentencing, Cordell filed an objection to his criminal history, challenging six juvenile adjudications from 1986.
At the sentencing hearing, the State admitted into evidence certified copies of a complaint and journal entries of Cordell's juvenile adjudications and sentencing in 1986 for three counts of burglary and three counts of misdemeanor theft.
Cordell specifically objected to two of the burglary convictions being classified as person felonies because the journal entry of judgment did not specify that they were residential burglaries. The district court overruled Cordell's objection, noting that the complaint indicated that two of the three burglary charges were residential burglaries, and therefore constituted person felonies. As a result, the court found that Cordell's criminal history score was A under the sentencing guidelines and imposed a mitigated presumptive sentence of 19 months in prison.
Analysis
Cordell raises the following issues on appeal: (1) The district court's classification of the two 1986 burglary convictions as person felonies violated his constitutional rights because a jury should have been required to find beyond a reasonable doubt that the burglaries were of dwellings; (2) the district court erred in using his prior convictions and juvenile adjudications to increase his sentence without requiring them to be proved to a jury beyond a reasonable doubt; and (3) the length of his prison term listed in the journal entry of judgment does not conform to the sentence pronounced from the bench. Each of these issues is addressed in turn. 1. The use of Cordell's 1986 burglary convictions to enhance his sentence did not violate his constitutional rights under Apprendi.
The relevant sentencing statute in effect when Cordell committed the present offense provides that a past burglary conviction be scored for criminal history purposes “(1) [a]s a prior person felony if the prior conviction ... was classified as a burglary [of a dwelling]” and “(2) [a]s a prior nonperson felony if the prior conviction ... was classified as a burglary [of a nondwelling].” K.S.A.2011 Supp. 21–6811(d). However, the 1986 burglary statute did not distinguish between dwellings and nondwellings. K.S.A. 21–3715 (Ensley 1981).
As a result, Cordell contends that K.S.A.2011 Supp. 21–6811(d) is unconstitutional because it allows the judge to determine whether prior burglaries were of a dwelling or of some other building for purposes of determining criminal history. Cordell argues that those facts instead must be determined by a jury beyond a reasonable doubt under the principles set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Cordell's constitutional challenge under Apprendi has been rejected by other panels of this court. In State v. May, 39 Kan.App.2d 990, 996–97, 186 P.3d 847,rev. denied 287 Kan. 768 (2008), this court addressed whether two 1980 burglaries should be scored as person felonies. The May court rejected the argument that K.S.A. 21–4711(d) was unconstitutional because by pleading guilty to the two prior burglaries, “May admitted all well-pled facts alleged in the charging document,” eliminating the need for the jury to make this determination. 39 Kan.App.2d at 996–97. The facts of the charging document to which May pled guilty clearly indicated that the burglaries were of dwellings. The court also noted that “whether May's prior burglaries were of a dwelling is a sentencing factor and not an element of the present crime so as to invoke the provisions of Apprendi.” 39 Kan.App.2d at 997.
Similarly, in State v. Sloan, No. 105,145, 2012 WL 308537, at *3–4 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. –––– (February 4, 2013), this court relied on May to reject the same constitutional argument against K.S.A. 21–4711(d). The Sloan court adopted May's reasoning and applied it to juvenile adjudications, holding that by stipulating to the well-pled facts of the complaint, Sloan admitted sufficient facts to determine that his prior burglaries were of dwellings, making them person felonies for criminal history purposes. 2012 WL 308537, at *3–4.
The reasoning of May and Sloan is readily applicable here. By stipulating to the well-pled facts of the complaint, Cordell admitted that he entered into (1) “the residence of [D.O.] located at [street address], Solomon, Kansas, with the intent to commit a theft therein” and (2) “the residence of [K.L.] located at [street address], Solomon, Kansas, with intent to commit a theft therein.” These facts were sufficient for the district court to find the burglaries were of dwellings and, therefore, counted as person felonies for purposes of scoring Cordell's criminal history. See K.S.A.2011 Supp. 21–6811(d) (“The facts required to classify prior burglary adult convictions and juvenile adjudications shall be established by the state by a preponderance of the evidence.”). Moreover, K.S.A.2011 Supp. 21–6811(d) does not implicate the principles discussed in Apprendi because the issue of whether Cordell's prior burglaries were of dwellings involves a sentencing factor, not an element of the present crime. See May, 39 Kan.App.2d at 997;Sloan, 2012 WL 308537, at *4.
2. The district court did not err in using Cordell's prior convictions and juvenile adjudications to increase his sentence without requiring them to be proved to a jury beyond a reasonable doubt.
Next, Cordell argues the district court violated his constitutional rights under Apprendi by using his prior convictions and juvenile adjudications to increase the penalty for his crime without requiring the State to prove them to a jury beyond a reasonable doubt. Cordell acknowledges that these issues were decided against him in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002) (prior convictions), and State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002) (juvenile adjudications), cert. denied537 U.S. 1104 (2003), but includes them to preserve the issues for federal review.
Absent some indication that our Supreme Court is departing from its positions in Ivory and Hitt, this court is bound thereby. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (May 4, 2012). Our Supreme Court continues to reaffirm its rulings in Ivory and Hitt. See, e.g., State v. Parks, 294 Kan. 785, 805–06, 280 P.3d 766 (2012) (reaffirming Ivory ); State v. Harris, 293 Kan. 798, 818, 269 P.3d 820 (2012) (reaffirming Hitt ). Thus, the district court did not err by using Cordell's prior convictions and juvenile adjudications to enhance his sentence.
3. Remand is not required to correct the journal entry of judgment.
Finally, Cordell claims that remand is necessary in order to correct the journal entry of judgment because it does not conform to the sentence pronounced from the bench. But the issue raised by Cordell is moot.
At sentencing, the district court sentenced Cordell to a 19–month term of imprisonment. As Cordell accurately notes, the original journal entry of judgment mistakenly reflected that he had received a 21–month prison sentence. But this error was later corrected in an amended journal entry of judgment that specifies the correct 19–month prison sentence. Therefore, this issue is moot and must be dismissed. See State v. Aleman, 16 Kan.App.2d 784, 786, 830 P .2d 64 (“An appellate court will not render opinions in appeals which present moot issues or where the judgment could have no practical effect on a then-existing controversy.”), rev. denied 251 Kan. 940 (1992).
Affirmed in part and dismissed in part.