Opinion
No. 107,139.
2012-10-19
STATE of Kansas, Appellee, v. Michael Warren HOCHARD, Appellant.
Appeal from Atchison District Court; Martin J. Asher, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
MEMORANDUM OPINION
PER CURIAM.
Michael Warren Hochard filed a motion for summary disposition of his sentencing appeal pursuant to K.S.A.2011 Supp. 21–6820(g) and (h). The State did not respond to Hochard's motion. We have reviewed the record on appeal and find no error in the sentences imposed by the district court.
Hochard contends the use of his criminal history for sentencing purposes in district court case No. 11CR187, without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for his primary offense of attempted burglary of a nondwelling 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 Hochard and is without merit. See State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002), cert. denied537 U.S. 1104 (2003); State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002).
Hochard also asserts the district court abused its discretion by ordering Hochard's sentences for attempted burglary and attempted theft to run consecutive to each other. Imposition of consecutive sentences is not a sentencing departure; we are without jurisdiction to consider this issue. See K.S.A.2011 Supp. 21–6820(c)(1); State v. Flores, 268 Kan. 657, 660, 999 P.2d 919 (2000).
Affirmed in part and dismissed in part pursuant to Rule 7.041a (2011 Kan. Ct. R. Annot. 60).