Opinion
No. 106,330.
2012-10-19
STATE of Kansas, Appellee, v. Michael D. PRESSLEY, Appellant.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge. Opinion filed October 19, 2012. Affirmed in part and dismissed in part.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
MEMORANDUM OPINION
PER CURIAM:
Michael D. Pressley 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 Pressley's presumptive sentence issue and to affirm Pressley's sentences. We have reviewed the record on appeal and find no error in the sentences imposed by the district court.
Pressley first contends the use of his criminal history for sentencing purposes in district court case Nos. 10CR1166 and 08CR3140, without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for his convictions 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 Pressley and is without merit. See State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002).
Pressley further contends that his constitutional rights were violated when the district court sentenced him to the aggravated term of incarceration within the applicable grid block for his possession of cocaine and aggravated failure to appear convictions. Because Pressley 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, 851, 190 P.3d 207 (2008); see also State v. Huerta, 291 Kan. 831, 840, 247 P.3d 1043 (2011) (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).