Opinion
No. 106,648.
2012-10-19
STATE of Kansas, Appellee, v. Cody M. DAVIS, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
MEMORANDUM OPINION
PER CURIAM:
Cody M. Davis filed a motion for summary disposition of his sentencing appeal pursuant to K.S.A.2011 Supp. 21–6820(g) and (h). The State responded, asking this court to dismiss Davis' presumptive sentence issue and to affirm Davis' sentences. We have reviewed the record on appeal and find no error in the sentences imposed by the district court.
Davis contends the use of his criminal history, including his juvenile adjudications, for sentencing purposes in district court case Nos. 10CR2958, 10CR3276 and 10CR3581, without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for his primary offense of aggravated burglary 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 Davis and is without merit. See State v. Fischer, 288 Kan. 470, Syl. ¶ 3, 203 P.3d 1269 (2009) (juvenile adjudications final on June 20, 2008, the date the court filed In re LM, 286 Kan. 460, 186 P.3d 164 [2008], may be included in an offender's criminal history score); State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002), cert. denied537 U.S. 1104 (2003); State v. Ivory, 273 Kan. 44, 46–41, 41 P.3d 781 (2002). Davis' juvenile adjudications were final prior to June 20, 2008.
Davis also contends the district court abused its discretion by denying his request for a downward dispositional sentencing departure. The district court sentenced Davis to presumptive terms of imprisonment for his offenses. We are without jurisdiction to consider this issue. See K.S.A.2011 Supp. 21–6820(c)(1) (appellate court shall not review any sentence within the presumptive sentence for the crime); State v. Johnson, 286 Kan. 824, 840–52, 190 P.3d 207 (2008) (same); see also State v. Huerta, 291 Kan. 831, 837, 247 P.3d 1043 (2011) (reaffirming that K.S.A. 21–4721(c)(1), now at K.S.A.2011 Supp. 21–6820(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).