Opinion
No. 107,845.
2013-06-14
STATE of Kansas, Appellee, v. Victor FRY, Appellant.
Appeal from Finney District Court; Philip C. Vieux, Judge.
Submitted for summary disposition pursuant to K.S.A.2012 Supp. 21–6820(g) and (h).
MEMORANDUM OPINION
PER CURIAM:
Victor Fry filed a motion for summary disposition of his sentencing appeal pursuant to K.S.A.2012 Supp. 21–6820(g) and (h). The State did not respond to Fry's motion. We have reviewed the record on appeal and find no error in the sentences imposed by the district court.
Fry first contends the use of his criminal history for sentencing purposes in district court case No. 11CR397, without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for his primary offense of felony theft 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 Fry and is without merit. See State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002).
Fry also contends the district court abused its discretion by denying his request for a downward dispositional sentencing departure. The district court sentenced Fry to a presumptive term of imprisonment for his felony theft conviction. We are without jurisdiction to consider this issue. See K.S.A, 2011 Supp. 21–6820(c)(l) (appellate court shall not review any sentence within the presumptive sentencing range for the crime); 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 (2012 Kan. Ct. R. Annot. 62).