Opinion
111,031 111,032 111,033 111,034.
01-23-2015
STATE of Kansas, Appellee, v. Jack STANLEY, Appellant.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BRUNS, J., and WALKER, D.J.
MEMORANDUM OPINION
PER CURIAM.
Jack Stanley appeals his sentence after pleading guilty—pursuant to a plea agreement entered in four cases—to two counts of criminal damage to property, one count of fleeing or attempting to elude, three counts of nonresidential burglary, eight counts of felony theft, two counts of criminal possession of a firearm, one count of possession of methamphetamine, and one count of possession of marijuana. In this consolidated appeal, Stanley contends that the district court abused its discretion in denying his motion for a departure sentence and by failing to follow the sentencing recommendations set forth in the written plea agreement. Because we lack jurisdiction to consider these two arguments, we dismiss them as a matter of law. In addition, Stanley contends that the district court erred in failing to require that his criminal history be proven to a jury beyond a reasonable doubt. Because we are bound to follow the precedent of the Kansas Supreme Court, we affirm the district court on this issue.
Facts
In July 2013, Stanley entered into a plea agreement in four criminal cases—12CR1656, 13CR243, 13CR382, and 13CR905. Under the terms of the plea agreement, the State recommended a combination of consecutive and concurrent sentences that amounted to imprisonment for 123 months. And, prior to sentencing, Stanley filed a motion for dispositional or durational departure.
At a sentencing hearing held in all four cases, the district court denied Stanley's motion for departure and imposed a sentence higher than that recommended by the State in the plea agreement. Specifically, the district court imposed consecutive sentences for a total of 136 months in prison—which constituted a presumptive sentence under the Kansas sentencing guidelines. Stanley timely appealed, and we consolidated the four cases for purposes of appeal.
Analysis
Jurisdiction to Review Presumptive Sentence
Stanley argues that the district court abused its discretion when it denied his motion for departure and when it failed to follow the sentence recommended in the plea agreement. But K.S.A.2013 Supp. 21–6820(c)(1) states that an appellate court shall not review any sentence that is within the presumptive sentence for the crime. Thus, because Stanley received a presumptive sentence in each case, we lack subject matter jurisdiction to consider this issue on appeal. See State v. Huerta, 291 Kan. 831, 837, 247 P.3d 1043 (2011) (reaffirming that K.S.A. 21–4721 [c][1]–now K.S.A.2013 Supp. 21–6820 [c][1]–eliminates appeals of presumptive sentences); State v. Jacobs, 293 Kan. 465, Syl. ¶ 3, 263 P.3d 790 (2011) (stating that the imposition of consecutive sentences does not constitute a departure sentence and provides no statutory basis for an appeal).
Apprendi Issue
Stanley also contends that the district court violated his rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In particular, he argues that the district court could not consider his criminal history unless it was proven to a jury beyond a reasonable doubt. Nevertheless, Stanley concedes that the Kansas Supreme Court has previously decided this issue and states that he simply wishes to preserve the claim for federal review. See State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002).
We are bound to follow precedent from the Kansas Supreme Court unless there is an indication that it is departing from its position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Recently, our Supreme Court declined to depart from its holding in Ivory. See State v. Frierson, 298 Kan. 1005, 1022, 319 P.3d 515 (2014). Accordingly, we conclude that the district court appropriately considered Stanley's criminal history in determining his sentence.
Affirmed in part and dismissed in part.