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State v. Heeke

Court of Appeals of Kansas.
Apr 17, 2015
347 P.3d 239 (Kan. Ct. App. 2015)

Opinion

112,742.

04-17-2015

STATE of Kansas, Appellee, v. Bradley Wayne HEEKE, Appellant.


MEMORANDUM OPINION

PER CURIAM.

Bradley Wayne Heeke appeals his sentence following his conviction of one count of nonresidential burglary. We granted Heeke's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State has filed no response.

On April 21, 2014, the State charged Heeke with 61 counts of nonresidential burglary, theft, possession of stolen property, and criminal damage to property. On July 11, 2014, pursuant to plea negotiations, Heeke pled no contest to one count of nonresidential burglary in exchange for dismissal of all the other charges. On August 12, 2014, the district court sentenced Heeke to the aggravated term of 23 months' imprisonment. The district court also imposed $12,592.75 in restitution. Heeke timely appealed his sentence.

On appeal, Heeke first argues that the district court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by sentencing him based on his prior criminal history, without requiring the State to prove the criminal history to a jury beyond a reasonable doubt. But as Heeke acknowledges, the Kansas Supreme Court has previously rejected Heeke's Apprendi claim in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002) (the use of prior criminal history does not violate a defendant's constitutional rights under Apprendi ). The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the Supreme Court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012).

Next, Heeke claims the district court violated his constitutional rights under Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), when it sentenced him to the aggravated number in the gridbox without proving the aggravating factors to a jury beyond a reasonable doubt. But as Heeke acknowledges, the Kansas Supreme Court has previously rejected Heeke's Cunningham claim in State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008). As previously stated, the Court of Appeals is duty bound to follow Kansas Supreme Court precedent. See Ottinger, 46 Kan.App.2d at 655.

Finally, Heeke argues that the district court erred by ordering restitution in the amount of $12,592.75 based upon Heeke's conviction of one count of nonresidential burglary. The district court ordered restitution to 13 separate victims totaling $12,592.75. Heeke argues that he should only be liable for the amount of restitution related to his one crime of conviction.

Here, Heeke's attorney agreed at sentencing to restitution to the various victims in the amount of $12,592.75 pursuant to the plea agreement. As Heeke acknowledges, this court has held that the trial court “ ‘may only order restitution for losses or damages caused by the crime or crimes for which the defendant was convicted unless, pursuant to a plea bargain, the defendant has agreed to pay for losses not caused directly or indirectly by the defendant's crime.’ “ State v. Dyer, 33 Kan.App.2d 766, 768, 108 P.3d 1010 (2005) ; see also State v. Dexter, 276 Kan. 909, 919, 80 P.3d 1125 (2003). Based on the stipulation at sentencing that Heeke would pay restitution to the various victims, we conclude the district court did not err in ordering restitution in the amount of $12,592.75.

Affirmed.


Summaries of

State v. Heeke

Court of Appeals of Kansas.
Apr 17, 2015
347 P.3d 239 (Kan. Ct. App. 2015)
Case details for

State v. Heeke

Case Details

Full title:STATE of Kansas, Appellee, v. Bradley Wayne HEEKE, Appellant.

Court:Court of Appeals of Kansas.

Date published: Apr 17, 2015

Citations

347 P.3d 239 (Kan. Ct. App. 2015)