Opinion
No. 106,464.
2012-12-21
STATE of Kansas, Appellee, v. Jose H. SAAVEDRA, Appellant.
Appeal from Lyon District Court; W. Lee Fowler, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
MEMORANDUM OPINION
PER CURIAM:
Jose H. Saavedra 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 Saavedra's motion. We have reviewed the record on appeal and find no error in the sentence imposed by the district court.
Saavedra contends the use of his criminal history, including his juvenile adjudications, for sentencing purposes in district court case No. 11CR24, without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for his possession of marijuana after a prior conviction offense 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 Saavedra 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).
Saavedra also contends the district court abused its discretion by denying his request for a downward dispositional sentencing departure. The district court sentenced Saavedra to a presumptive term of imprisonment for his conviction. 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); see also State v. Huerta, 291 Kan. 831, 837, 247 P.3d 1043 (2011) (reaffirming that K.S.A.2011 Supp. 21–6820(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).