Opinion
No. 106,643.
2012-12-14
STATE of Kansas, Appellee, v. Richard Allen LUARKS, Appellant.
Appeal from Shawnee District Court; David Debenham, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; David Debenham, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., BUSER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Richard Allen Luarks of intentional aggravated battery. He appeals his conviction and sentence. First, Luarks contends that the district court committed reversible error by failing to give a self-defense instruction. Second, Luarks claims the district court committed a sentencing error when it classified four of his pre-Guidelines felony convictions as person crimes. Third, Luarks asserts the district court erred when it used his criminal history to enhance his sentence without first requiring those prior adjudications to be presented to the jury and proved beyond a reasonable doubt. Finally, Luarks alleges another sentencing error when the district court sentenced him to the upper term in the presumptive sentencing grid block without requiring the State to prove the aggravating factors to a jury beyond a reasonable doubt. After considering Luarks' arguments, we affirm the district court in part and dismiss the appeal in part.
Factual and Procedural Background
In the summer of 2010, Luarks and Sara Ross–Hayes were in a relationship. As a result, Luarks often stayed at Ross–Hayes' apartment in Topeka. This apartment was located on the third floor of the apartment building, and Emanuel Cox resided in the apartment next door.
During the late evening of July 14, 2010, Ross–Hayes was locked out of her apartment. Because Luarks was inside, Ross–Hayes began “banging” on the door and yelling, “Open the door.” Hearing the commotion, Cox opened his door, and Ross–Hayes explained that Luarks would not let her into her apartment. To assist her, Cox left his apartment and hit and kicked the door. Eventually, Luarks opened the door and looked at Cox but no words were exchanged. Ross–Hayes went inside her apartment, and Cox returned to his residence.
Shortly thereafter, Luarks and Ross–Hayes had an argument. Luarks accused Ross–Hayes of having an affair with Cox because “he was under the impression that with [Cox] being in his house robe and his underwear that [she] had been over at [Cox's] house” earlier that evening. Ross–Hayes denied the accusation, but Luarks' anger was unabated. Eventually, Ross–Hayes started to leave the apartment, whereupon Luarks yelled, “I know you were screwing [Cox], and if you go back over there, I'm going to stab him.”
Ross–Hayes did not believe Luarks would carry out his threat. But as she walked by Cox's apartment, she pounded on his door and yelled, “[D]on't open the door, [Luarks'] pissed at me because he thinks I was over at your house and we was [ sic ] having sex, and we wasn't [ sic ]. And he says he's going to stab you. Just don't even answer your door.” According to Ross–Hayes, she left the apartment complex, called 911, and told the operator, “I wanted to get in my house, I wanted some keys returned, and I wanted somebody to be asked to leave.”
Cox testified that about 40 minutes after he returned to his apartment, Ross–Hayes knocked on his door and told him Luarks was “going to come in [his] apartment and stab [him].” Cox interpreted this statement as a “joke.” Cox did call 911, however, because he had heard Luarks and Ross–Hayes “arguing and fighting” in her apartment and the noise was inhibiting his sleep.
While on the phone with the 911 operator, Cox heard someone knocking on his door, and during the call, Cox stated something to the effect of, “[B]ut don't [expletive] with me, I will [expletive] you up man. Now, I'm in my bed.... And I don't know you people up here. I will [expletive] you up.” Shortly thereafter, Cox informed the operator that he was going to his front door “to go take care of this.” When the dispatcher instructed him to stay inside his apartment, Cox stated, “No, I'll beat his ass first. I'm a gangster. I'm a gangster up in here. I'm from Chicago [expletive]” At trial, however, Cox testified that he was not a gangster and had never been in a gang.
Cox opened his door, without knowing who was on the other side and immediately thereafter Luarks started stabbing him with “a big knife.” Luarks stabbed Cox in his stomach, his chest, and his cheek, causing Cox to sustain severe, long-lasting injuries. According to Cox, Luarks attempted to drag him into Ross–Hayes' apartment, but Cox was able to “break free” and escape to his own apartment. Cox again called 911 and told the dispatcher that “Richard” had stabbed him and he needed an ambulance.
At about 11:30 p.m., several officers and detectives from the Topeka Police Department responded to the scene. Cox told the officers that “Richard” had stabbed him and that he was in the neighboring apartment. Officer Matt Cobb “banged” several times on Ross–Hayes' apartment door and announced their presence “very loudly.” When Luarks failed to respond, officers forcibly entered the apartment and arrested him without incident.
As part of the investigation, an officer took a photograph of Cox's front door, on which someone had etched “ ‘white bitch [expletive].’ “ Notably, Luarks and Cox are both African–American and Ross–Hayes is Caucasian.
Officers also interviewed Addrianne Williams, a resident on the first floor, who confirmed that she overheard “an argument” between Luarks and Ross–Hayes. Williams described this argument as follows:
“And [Luarks] was outside the gate holding the gate open, and [Ross–Hayes] was coming down the stairs. She had made it to the second floor. And he kept on hollering, you [are] sleeping with him, so you slept with him, so you slept with him, and all this big mumbo-jumbo stuff.”
Marlyn Houston, the resident of the apartment below Ross–Hayes, told police that on July 14, 2010, Ross–Hayes came to her apartment, informed her that she had been locked out, and asked if she heard anybody upstairs in her apartment. According to Houston, she could hear someone “walking” in Ross–Hayes' apartment, and after she invited Ross–Hayes' in to listen, Ross–Hayes went back upstairs. Subsequently, Houston began to hear “somebody banging on [Ross–Hayes'] door,” and Houston “imagine[d] [Ross–Hayes] was trying to get somebody to answer her door.”
Luarks was charged and convicted, following a jury trial, of intentional aggravated battery. On March 11, 2011, he was sentenced to 172 months' imprisonment, followed by 36 months' postrelease supervision. Luarks filed a timely appeal.
Failure to Provide a Self–Defense Instruction
Luarks contends the district court committed reversible error by failing to give a self-defense instruction because there was evidence that Luarks “reasonably believed that force was necessary to defend himself against Mr. Cox's imminent use of unlawful force.”
It is uncontroverted that the district court did not instruct the jury on self-defense. Significantly, however, Luarks concedes he did not request a self-defense instruction or object to its omission.
Recently, our Supreme Court set forth clarified guidelines regarding an appellate court's review of jury instructions that are not requested during trial:
“K.S.A. 22–3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.” State v. Williams, 295 Kan. ––––, Syl. ¶ 3, 286 P.3d 195 (2012).
In the determination of whether an instruction or a failure to give an instruction is clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, “the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.” 295 Kan. ––––, Syl. ¶ 4. If the reviewing court concludes the district court erred in giving or failing to give a challenged instruction, the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses “whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. ––––, Syl. ¶ 5. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal. 295 Kan. ––––, Syl. ¶ 5.
A defendant is generally “entitled to instructions on the law applicable to his or her defense theory if there is sufficient evidence for a rational factfinder to find for the defendant on that theory.” (Emphasis added.) State v. McCullough, 293 Kan. 970, 974, 270 P.3d 1142 (2012). In the present case, the determinative question is whether there was sufficient evidence produced at trial to warrant giving the jury a self-defense instruction.
In Kansas:
“(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person or a third person against such other's imminent use of unlawful force.” K.SA.2010 Supp. 21–3211(a).
“To justify a self-defense instruction, a defendant must present some evidence, either through his own testimony or from other witnesses, to support each prong of a two-prong self-defense test.” (Emphasis added.) State v. Lutter, 27 Kan.App.2d 858, 860, 10 P.3d 16,rev. denied 270 Kan. 902 (2000).
The first prong involves a subjective standard, which requires the defendant to show that he or she “sincerely and honestly” believed it was necessary to use force in defense of self. McCullough, 293 Kan. at 975. The second prong, on the other hand, is an objective standard, which necessitates a showing, by the defense, that a reasonable person, in the same circumstances would have perceived self-defense as necessary. 293 Kan. at 975.
Luarks focuses on Cox's 911 call, which the State introduced into evidence, wherein he claims Cox made verbal threats demonstrating his intent to imminently use unlawful force against Luarks. Luarks asserts that Cox's threats, combined with Houston's testimony about how conversations could be heard through the walls of the apartment complex, proved that Luarks had a reasonable belief that he needed to stab Cox to defend himself.
The State, on the other hand, asserts the district court did not err because Luarks did not present any evidence, which satisfies the two-prong self defense test, i.e., that he subjectively believed the use of force was necessary to defend himself and a reasonable person in his circumstances would have so believed.
Analyzing the subjective prong, we note that Luarks' did not testify at trial. As a result, the most direct evidence (Luarks' alleged testimony) that Luarks heard Cox's remarks and feared an imminent attack based upon the comments was not presented to the jury. Moreover, our review of the record reveals no direct or circumstantial evidence to prove that Luarks had any such subjective belief at the time he stabbed Cox. This is undoubtedly why Luarks did not rely on a theory of self-defense at trial. On the contrary, Luarks' trial strategy was directly inapposite to the theory self defense—Luarks denied that he had stabbed Cox.
In his opening statement, Luarks' counsel argued:
“No blood was found on the knife, no blood was found anywhere. No physical evidence ties Mr. Luarks to the stabbing of Mr. Cox.
....
“The only witness to the case is Mr. Cox and Mr. Cox is a self-proclaimed gangster from Chicago....
....
“Mr. Luarks told the [police] he didn't stab anybody, you won't find any evidence that I did. The detective said it's there and we'll find it. The detective was wrong.”
This trial strategy culminated in defense counsel's closing argument:
“[G]angsters have enemies, whether they're from Topeka or from Chicago.
“Why would you stab your neighbor and then just wait for the cops to show up? For that matter, if you're going to stab your neighbor, why would you tell somebody you're going to do it?
“There's no blood, there's no DNA, there's no knife, there's no police work. The only thing that ties Mr. Luarks to this crime is Mr. Cox'[s] eyewitness testimony. Mr. Cox says Mr. Luarks stabbed him.
“Well, Detective Sherer talked to you about [how] eyewitnesses can be wrong.... We know the lighting in that breezeway was dim. We know it happened fast, furious even. The ID is questionable at best. It may be—maybe Mr. Cox didn't see who really stabbed him. Or maybe the person who really stabbed him is somebody that you just don't rat out, even if you're a gangster from Chicago.”
It is patently obvious that Luarks' defense theory was to deny that he stabbed Cox, not that he stabbed him in self-defense. Our Supreme Court has instructed that district courts “should not interfere with a defendant's chosen defense theory by giving an instruction which neither party requested and which may undermine [the] defendant's chosen theory. [Citation omitted.]” State v. Trussell, 289 Kan. 499, 505, 213 P.3d 1052 (2009). Moreover, district courts are not “required to provide instructions for every possible theory of defense just because some supporting evidence may be produced at trial, if the defendant has not relied on the particular defense theory. [Citation omitted.]” 289 Kan. at 505. Thus, in Trussell the Kansas Supreme Court held that the district court did not err by failing to give a self-defense or defense of others instruction, in the absence of a request, because the defendant's trial strategy was to show that he “was a ‘fall guy’ “ for the real perpetrators. 289 Kan. at 505.
Given the total lack of evidence to support a self-defense theory and Luarks' consistent denial at trial that he stabbed Cox, an instruction on self-defense would have directly undermined Luarks' defense. For all of these reasons, we hold the district court did not err by failing to give a self-defense instruction.
Use of Pre–Guidelines Prior Crimes to Determine Sentencing
Luarks' presentencing investigation (PSI) report calculated his criminal history score as an A based, in part, upon the classification of three of his pre-Guidelines felony convictions as person felonies, i.e., a 1986 conviction for aggravated battery, a 1981 conviction for burglary, and a 1981 conviction for attempted rape. Luarks contends the district court erroneously calculated his criminal history because his pre-Guidelines felony convictions were improperly classified as person crimes. See Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq. (Guidelines).
Luarks failed to raise this issue below, and although he was given the opportunity to object to his PSI report at sentencing, he failed to do so. Under K.S.A.2010 Supp. 21–4715(c), a criminal defendant has an affirmative duty to file a written objection to the proposed criminal history worksheet that specifies the exact nature of the alleged error. Accordingly, a defendant generally may not request correction of an allegedly illegal sentence when that defendant invited the error by stipulating to his or her criminal history because “the law is well settled that one who, by his or her own acts, invites error cannot then complain or take advantage of it on appeal. [Citation omitted.]” State v. McBride, 23 Kan.App.2d 302, 304, 930 P.2d 618 (1996).
In State v. Vandervort, 276 Kan. 164, 177, 72 P.3d 925 (2003), however, our Supreme Court recognized that under K.S.A. 21–4721(e), appellate review of criminal history errors can be granted under limited circumstances. The court held that the following situations are included within these limited circumstances: (1) Where the defendant did not personally give an oral stipulation in open court, as the authority to admit to prior criminal history belongs to the defendant; and (2) Where the defendant and/or his counsel had no opportunity prior to sentencing to review the criminal history worksheet. 276 Kan. at 177.
Moreover, in State v. Donaldson, 35 Kan.App.2d 540, 544, 133 P.3d 154 (2006), a panel of this court recognized another exception when it found that “no party can properly stipulate to an incorrect application of the law. [Citation omitted.]” The panel explained that the “invited error rationale is not applicable when the erroneous information at the heart of a stipulation is within the knowledge of the court, the prosecutor, and defense counsel, but not the defendant.” 35 Kan.App.2d at 543. Thus, the panel concluded that when a defendant fails to object to his or her criminal history score (as required—see K.S.A.2010 Supp. 21–4715[c] ), the invited error doctrine only precludes him or her from “challenging the factual basis for the criminal history classification.” (Emphasis added.) 35 Kan.App.2d at 544.
Except for a passing reference to K.S.A. 21–4721(e), Luarks does not address the invited error doctrine or the applicability of an exception in his brief, and typically, an issue not briefed on appeal is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
Neither of the Vandervort exceptions applies to this case. Luarks does not complain about having insufficient time to review the PSI report with his counsel prior to sentencing, and his counsel orally stipulated to the accuracy of the information contained in it. As a result of a specific colloquy with defense counsel regarding the accuracy of Luarks' PSI report, the district court ruled, “Court will find that the defendant's criminal history classification is ‘A’ and it is uncontroverted in this matter.” (Emphasis added.) We conclude that Luarks' failure to object to his PSI report precludes him from challenging the factual basis for his criminal history classification. See Donaldson, 35 Kan.App.2d at 543–44.
On appeal, Luarks raises one question of fact and one issue of law on appeal. First, Luarks argues that the classification of his 1981 burglary conviction as a person crime violates the United States Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In July 2010, the Kansas Criminal Code classified burglary as either a person or nonperson felony depending on whether the offense was committed in a dwelling. K.S.A. 21–3715. The 1981 version of the Code, however, did not distinguish between the types of structure burglarized, i.e., whether the structure was a dwelling was irrelevant for sentencing purposes. K.S.A. 21–3715 (Ensley 1981).
Luarks asserts the district court violated his constitutional rights because it classified his burglary conviction as a person felony, under the 2010 version of the statute, without requiring the State to prove the additional element necessary to make this classification beyond a reasonable doubt, i.e., whether his burglary was committed in a dwelling.
Luarks' argument is without merit. There was no need to prove that the 1981 burglary was to a dwelling. The entry on Luarks' PSI report, specifically stated: “BURGLARY TO A RESIDENCE.” Under K.S .A.2010 Supp. 21–4715(a), a defendant's criminal history may be established by a preponderance of the evidence at the sentencing hearing, or by the admission of the defendant in open court. Notably, if a defendant is present during sentencing, his or her silence is considered an endorsement of the actions or decisions of his or her counsel during the hearing. Donaldson, 35 Kan.App.2d at 543. Accordingly, when Luarks' counsel stipulated to the PSI report, Luarks essentially admitted the accuracy of the factual basis for the classification of his burglary conviction, i.e., that this prior offense was committed in a dwelling. As a result, the invited error doctrine precludes Luarks from pursuing this issue on appeal because it involves the facts underlying the classification of the 1981 burglary conviction. See Donaldson, 35 Kan.App.2d at 543–44.
Next, Luarks claims the district court improperly classified all three of his pre-Guidelines convictions as person felonies because “[t]he plain language of K.S.A. [2010 Supp.] 21–4710(d)(8) provides that any unclassified crime shall be considered a nonperson crime.” Luarks insists that had the district court properly classified his pre-Guidelines convictions as nonperson crimes, his criminal history score would have been an E rather than an A. He requests that his case be remanded for resentencing with the appropriate criminal history score.
The classification of prior convictions, as person or nonperson crimes, presents a question of law. See State v. Barajas, 43 Kan.App.2d 639, 642, 230 P.3d 784 (2010). Similarly, interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Jolly, 291 Kan. 842, 845–46, 249 P.3d 421 (2011). We are persuaded this issue is reviewable on appeal despite Luarks' failure to raise this issue below. See Donaldson, 35 Kan.App.2d at 543–44.
K.S.A.2010 Supp. 21–4710(d)(8) provides as follows: “Unless otherwise provided by law, unclassified felonies and misdemeanors, shall be considered and scored as nonperson crimes for the purpose of determining criminal history.” According to Luarks, because his convictions were committed before Kansas began classifying crimes as person or nonperson on July 1, 1993 (the effective date of the (KSGA), his convictions are considered “unclassified” crimes, which must be scored as nonperson crimes for criminal history purposes under K.S.A.2010 Supp. 21–4710(d)(8).
Luarks' legal argument is not novel. Several unpublished opinions of our court have addressed and rejected similar legal arguments. For example, in State v. Henderson, No. 100,371, 2009 WL 2948657, at *2 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1099 (2010), the defendant claimed, for the same reasons asserted by Luarks, that the district court erroneously calculated his criminal history score because it improperly classified a pre-Guidelines conviction as a person felony. A panel of this court rejected this argument:
“Kansas courts have routinely classified pre–1993 offenses as either person or nonperson for criminal history purposes by comparing the offenses to the classification now in effect. [Citation omitted.] Under Henderson's theory, any offense committed prior to July 1, 1993, must be classified as a nonperson offense for purposes of calculating criminal history scores. This would lead to an unreasonable result where violent crimes committed before the sentencing guidelines would always be treated as nonperson felonies for criminal history purposes. Such a result would be inconsistent with the general design of the guidelines. [Citation omitted.]” 2009 WL 2948657, at *3.
Significantly, subsequent panels of this court have consistently followed the rationale in Henderson. See, e.g., State v. Speake, No. 105,641, 2012 WL 1649878, at *2–3 (Kan.App.2012) (unpublished opinion), petition for review filed June 4, 2012; State v. Boster, Nos. 101,009, 101,010, 2009 WL 3738490, at *3–4 (Kan.App.2009) (unpublished opinion), (“ Henderson is not binding precedent, but we adopt its reasoning”) rev. denied 290 Kan. 1096 (2010); see also State v. Murdoch, No. 104,533, 2011 WL 4031550, at *2–3 (Kan.App.2011) (unpublished opinion), (“We also agree with the reasoning in Boster and Henderson that the general rule of strict construction of criminal statutes in favor of the accused must give way to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.”) rev. granted May 21, 2012; State v. Mims, No. 103,044, 2011 WL 4563068, at *5–6 (Kan.App.2011) (unpublished opinion), (“Though ... no sentencing statute specifically states how a pre–1993 Kansas felony conviction should be classified for criminal history purposes, the legislature clearly intended for all prior adult felony convictions, including expungements, to be ‘considered and scored’ regardless of when these convictions occurred. See K.S.A. 21–4710(d)(2). To that end, this court has ... rejected the argument that K.S.A. 21–4710(d)(8) dictates that all pre–1993 convictions be classified as nonperson crimes for criminal history purposes.”) rev. denied 294 Kan. –––– (May 21, 2012).
We agree with Henderson and its progeny. Luarks' pre-Guidelines convictions for aggravated battery, attempted rape, and burglary would be classified as person crimes under the applicable, and substantially similar, statutes that identify these crimes as person felonies. Compare K.S.A. 21–3414 (Ensley 1981) (aggravated battery), K.S.A. 21–3301 (Ensley 1981) (attempt), K.S.A. 21–3502 (Ensley 1981) (rape), and K.S.A. 21–3715 (Ensley 1981) (burglary) with K.S.A. 21–3414 (aggravated battery), K.S.A.2010 Supp. 21–3301 (attempt), K.S.A.2010 Supp. 21–3502 (rape), and K.S.A. 21–3715 (burglary). See also K.S.A. 21–4711(d) (“Prior burglary adult convictions and juvenile adjudications will be scored for criminal history purposes as follows: (1) As a prior person felony if the prior conviction or adjudication was classified as a burglary as defined in subsection (a) of K.S.A. 21–3715 and amendments thereto.”); K.S.A. 21–4711(g) (“A prior felony conviction of an attempt ... to commit a crime shall be treated as a person or nonperson crime in accordance with the designation assigned to the underlying crime.”).
We conclude the district court did not err in classifying Luarks' pre-Guidelines convictions as person felonies. See Henderson, 2009 WL 2948657, at *3.
Use of Criminal History to Enhance Sentence
Luarks argues that the district court violated his constitutional rights under Apprendi when it used his criminal history to enhance his sentence without requiring the State to prove his prior convictions to a jury beyond a reasonable doubt. This argument involves a question of law over which this court exercises de novo review. State v. Pennington, 276 Kan. 841, 851, 80 P.3d 44 (2003).
As Luarks acknowledges, this issue was previously decided and rejected by the Kansas Supreme Court in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). In Ivory, the court held that the use of a defendant's criminal history to calculate the presumptive KSGA sentence does not violate due process as interpreted by Apprendi. 273 Kan. at 46–48.
This court is duty bound to follow precedent from the Kansas Supreme Court absent some indication that the 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. –––– (May 4, 2012). There is no evidence to suggest that the Kansas Supreme Court is considering a departure from its holding in Ivory. See McCaslin, 291 Kan. at 731–32 (affirming Ivory ). Luarks' argument is without merit.
Imposition of Aggravated Guidelines Sentence
For his final issue, Luarks contends the district court violated his constitutional rights and the United States Supreme Court's holding in Apprendi and Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), when it sentenced him to the upper term in the presumptive sentencing grid block, i.e., the “aggravated sentence,” without requiring the State to prove the aggravating factors to a jury beyond a reasonable doubt.
As Luarks candidly concedes, our Supreme Court addressed and rejected his specific constitutional argument in State v. Johnson, 286 Kan. 824, Syl. ¶ 5–6, 190 P.3d 207 (2008). Moreover, the Supreme Court explained that under K.S.A. 21–4721(c)(1), appellate courts lack jurisdiction to consider a challenge to any sentence within the presumptive sentence grid block. 286 Kan. at 851–52.
In this case, based upon Luarks' criminal history score of A, the severity level of his crime, and the serious injuries Cox sustained, the district court determined that it was appropriate to sentence Luarks to the upper or aggravated term in the presumptive sentencing grid block, i.e., a prison term of 172 months. Because Luarks' sentence falls within the presumptive sentencing range, under K.S.A. 21–4721(c)(1), this court is without jurisdiction to consider this issue on appeal. See Johnson, 286 Kan. at 851–52. Finally, there is no indication that our Supreme Court is departing from its holding in Johnson, and, therefore, this court is duty bound to follow it. See Ottinger, 46 Kan.App.2d at 655; see also State v. Deal, 293 Kan. 872, 890–91, 269 P.3d 1282 (2012) (affirming Johnson ). This issue is dismissed.
Affirmed in part and dismissed in part.