Opinion
Nos. 106,821 106,822 106,823 106,824 106,825 106,826 106,827.
2012-10-19
STATE of Kansas, Appellee, v. Angela MARTINEZ, Appellant.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
MEMORANDUM OPINION
PER CURIAM.
Angela Martinez filed a motion for summary disposition of her sentencing appeal pursuant to K.S.A.2011 Supp. 21–6820(g) and (h). The State responded, asking this court to dismiss Martinez' presumptive sentence issues and to affirm her sentences. We have reviewed the record on appeal and find no error in the sentences imposed by the district court.
Martinez first contends the use of her criminal history for sentencing purposes in district court case Nos. 09CR1772, 09CR3616, 10CR2880, 10CR2928, 10CR2929, 10CR3754, and 10CR3772, without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for her primary offenses 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 Martinez and is without merit. See State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002).
Martinez also contends the district court abused its discretion by denying her request for a downward dispositional sentencing departure. The district court sentenced Martinez to presumptive terms of imprisonment for her convictions. We are without jurisdiction to consider this issue. See K.S.A. 21–6820(c)(1) (appellate court shall not review any sentence within the presumptive sentence for the crime); 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).
Martinez lastly argues that her constitutional rights were violated when the district court sentenced her to the aggravated term of incarceration within the applicable grid block for her felony offenses in district court case Nos. 10CR2929, 10CR3754, and 10CR3772. Because Martinez received presumptive sentences for these convictions, we are without jurisdiction to consider this issue. See K.S.A.2011 Supp. 21–6820(c)(1); State v. Johnson, 286 Kan. 824, 840–52, 190 P.3d 207 (2008); see also Huerta, 291 Kan. at 840 (reaffirming that appellate court does not review on direct appeal claims that defendant's presumptive sentence has a constitutionally based infirmity).
Affirmed in part and dismissed in part pursuant to Rule 7.041a (2011 Kan. Ct. R. Annot. 60).