Opinion
111,461 111,462.
05-15-2015
STATE of Kansas, Appellee, v. Barbara L. SANDERS, Appellant.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant solicitor general, of Office of Kansas Attorney General, for appellee.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, of Office of Kansas Attorney General, for appellee.
Before POWELL, P.J., McANANY, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Barbara L. Sanders appeals her sentence following her convictions in two separate criminal cases that have been consolidated for appeal. In case No. 13 CR 441, Sanders pled no contest to attempted reckless aggravated battery and obstruction of legal process. In case No. 13 CR 369, Sanders pled no contest to possession of hallucinogenic drug, possession of methamphetamine, and obstruction of legal process. In exchange for her pleas, the State dismissed Sanders' remaining pending charges.
Under the terms of the plea agreement, the State agreed to join in a recommendation for probation if Sanders remained in custody until she could enter a substance abuse treatment facility. Despite the State's recommendation, the district court denied Sanders' request for probation and sentenced her to 40 months' imprisonment. Sanders appeals her sentence.
Sanders first argues that the district court abused its discretion when it failed to follow the sentencing recommendation outlined in the plea agreement. Sanders complains that the district court erroneously relied on factors such as her age and her criminal history of violent offenses in denying her request for probation. Sanders acknowledges that the sentencing court is not bound by the recommendations in a plea agreement. State v. Hill, 247 Kan. 377, 385, 799 P.2d 997 (1990).
The district court sentenced Sanders in accordance with the Revised Kansas Sentencing Guidelines Act sentencing grid, and she received a presumptive sentence. See 2014 Supp. K.S.A. 21–6801 et seq. A nondeparture sentence that is within the presumptive sentence for the crime is not reviewable by an appellate court. K.S .A.2014 Supp. 21–6820(c)(1). Accordingly, we lack jurisdiction to review this issue and must dismiss it.
Sanders also contends the sentencing court's use of her prior convictions to enhance her sentence without proof to a jury beyond a reasonable doubt violated her rights under the Sixth and Fourteenth Amendments to the United States Constitution as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 477, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Our Supreme Court has previously rejected this claim and continues to do so. See State v. Hall, 298 Kan. 978, 991, 319 P.3d 506 (2014) (reaffirming State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 [2002] ). We are bound to follow Ivory .
Affirmed in part and dismissed in part.