Opinion
No. 106,955.
2012-10-19
STATE of Kansas, Appellee, v. Brad A. STARLIN, Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; Douglas R. Roth, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
PER CURIAM.
Brad A. Starlin 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 Starlin's presumptive sentence issue and to affirm Starlin's sentences. We have reviewed the record on appeal and find no error in the sentences imposed by the district court.
Starlin first contends the use of his criminal history for sentencing purposes in district court case No. 10CR2429, without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for his primary offense of burglary 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 Starlin and is without merit. See State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002).
Starlin also contends the district court abused its discretion by denying his request for a downward dispositional and/or durational sentencing departure. The district court sentenced Starlin to presumptive terms of imprisonment for his 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 sentencing range for the crime); State v. Huerta, 291 Kan. 831, 837, 247 P.3d 1043 (2011) (reaffirming that K.S.A. 21–4721(c)(1), now at 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).