Opinion
111,256 111,257.
10-17-2014
STATE of Kansas, Appellee, v. William Joseph EICHEM, Appellant.
MEMORANDUM OPINION
PER CURIAM.
William Joseph Eichem appeals the sentences imposed by the district court after he pled no contest to one count of residential burglary, a severity level 7 person felony, in case No. 13 CR 397, and no contest to one count of nonresidential burglary, a severity level 7 nonperson felony, in case No. 13 CR 423.
The district court sentenced Eichem to a controlling prison term of 25 months in case No. 13 CR 397. Although Eichem fell into a presumptive probation box, the district court applied a special rule under K.S.A.2012 Supp. 21–6804(1) and placed Eichem in a presumptive prison box. The district court granted Eichem's motion for a downward departure in case No. 13 CR 423 and sentenced him to 12 months' imprisonment to be served consecutive to his sentence in case No. 13 CR 397. The appeals from these sentences were consolidated.
Eichem moved for summary disposition in lieu of briefing pursuant to Supreme Court Rule 7.041 A (2013 Kan. Ct. R. Annot. 63). The State filed a response indicating that the district court did not err in applying the special rule regarding burglary convictions and sentencing. We granted the summary disposition motion.
In his motion for summary disposition, Eichem argues that the district court improperly applied a special rule under K.S.A.2013 Supp. 21–6804(1) to place him in a presumptive prison box for sentencing in case No. 13 CR 397. Eichem asserts that he did not have a previous burglary conviction at the time of the offense in case No. 13 CR 397 and that the law in effect at the time the offense was committed should govern at sentencing. If the district court had not applied the special rule, Eichem claims he would have been presumptive probation in case No. 13 CR 397 and, thus, would have been eligible for supervised release at the end of the prison term in case No. 13 CR 423.
Eichem concedes that this issue has been decided adversely to his position in State v. Kirby, 32 Kan.App.2d 811, 89 P.3d 931, rev. denied 278 Kan. 849 (2004). In Kirby, this court interpreted the “statutory language temporal significance of ‘prior conviction’ “ for purposes of the special rule set out in K.S.A.2004 Supp. 21–4704(1) (now K.S.A.2013 Supp. 21–6804 [1] ) and concluded:
“Stripped down, K.S.A.2003 Supp. 21–4704(1) says that ‘[t]he sentence for [burglary] when such person being sentenced has a prior conviction for [burglary] shall be presumed imprisonment.’ (Emphasis added.) Plainly, the inquiry into whether the burglar has a prior burglary conviction is made at the time the person is being sentenced, i.e., at the sentencing hearing. Here, at the sentencing hearing in Case No. 02 CR 35, Kirby had another conviction, in Case No. 02 CR 60, which was prior to the date of sentencing. Therefore, the district court correctly applied the enhancement provision of K.S.A.2003 Supp. 21–4704(1) by imposing a presumptive prison sentence in Case No. 02 CR 35.” 32 Kan.App.2d at 813, 89 P.3d 931.
Here, Eichem had two burglary convictions before the district court in case Nos. 13 CR 397 and 13 CR 423. The offense date in case No. 13 CR 397 was June 2, 2013, and the offense date in case No. 13 CR 423 was August 24, 2013. Eichem was convicted in each case on October 10, 2013. At the time of sentencing in case No. 13 CR 397, Eichem had a prior burglary conviction; accordingly, he was sentenced under the special rule in K.S.A.2013 Supp. 21–6804(1).
Eichem makes no argument that Kirby was wrongly decided. He merely cites to Kirby and indicates that he requests summary disposition of the appeal. With both parties in agreement that the case should be decided by summary disposition, we affirm the district court's application of the special sentencing rule under K.S.A.2013 Supp. 21–6804(1) and the sentencs imposed.
Affirmed.