Opinion
No. 111,214.
2014-12-19
STATE of Kansas, Appellee, v. Muhammed I. WALIALLAH, Appellant.
Appeal from Sedgwick District Court; John J. Kisner, Jr., Judge.
Submitted for summary disposition pursuant to K.S.A.2013 Supp. 21–6820(g) and (h).
Before HILL, P.J., McANANY, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Muhammed I. Waliallah appeals his sentences for 10 counts of robbery following a plea agreement. This court granted Waliallah's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66).
Pursuant to a plea agreement with the State, Waliallah pled guilty to 10 counts of robbery in exchange for the State agreeing to recommend a mid-number sentence for one count and low-number sentences on all other counts with counts one through three running consecutively for a total sentence of 192 months.
At sentencing, the district court, contrary to the recommendations in the plea agreement, sentenced Waliallah to 136 months for the first count, the aggravated presumptive number in the grid box, and 34–month consecutive sentences for each of the remaining nine counts. This was then statutorily reduced to twice the controlling sentence of 272 months.
On appeal, Waliallah argues the district court abused its discretion in declining to follow the State's sentencing recommendation, in ordering the sentences to run concurrently, and in sentencing him to the aggravated number of the presumptive sentencing range without putting the matter to a jury.
The district court was not bound by the terms of a plea agreement. See State v. Boley, 279 Kan. 989, 993, 113 P.3d 248 (2005). Further, we cannot review any sentence for a felony conviction that is within the presumptive sentence for the crime. See K.S.A.2013 Supp. 21–6820(c)(1); State v. Flores, 268 Kan. 657, 658, 999 P.2d 919 (2000). Waliallah's sentences were within the presumptive range. Thus, this court does not have jurisdiction to review Waliallah's presumptive sentences for robbery.
Further, a sentence within the range stated in the Kansas sentencing guidelines does not violate Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) or Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See State v. Johnson, 286 Kan. 824, 851, 190 P.3d 207 (2008).
Thus, we affirm with respect to Waliallah's Apprendi argument and dismiss the rest for lack of subject matter jurisdiction.