Opinion
No. 106,553.
2012-12-21
STATE of Kansas, Appellee, v. Tress M. MORGAN, 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:
Tress M. Morgan 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 Morgan's presumptive sentence issue and affirm his sentences. We have reviewed the record on appeal and find no error in the sentences imposed by the district court.
Morgan contends the use of his criminal history, including his juvenile adjudications, for sentencing purposes in district court case No. 11CR554, without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for his primary offense of attempted rape 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 Morgan 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 L.M., 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, 46–47, 41 P.3d 781 (2002).
Morgan also contends the district court abused its discretion by denying his request for a downward dispositional sentencing departure. The district court sentenced Morgan to presumptive terms of imprisonment for his attempted rape and attempted robbery 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) eliminates appeals of presumptive sentences).
Affirmed in part and dismissed in part pursuant to Rule 7.041a (2011 Kan. Ct. R. Annot. 60).