Opinion
110,595 110,596.
11-26-2014
STATE of Kansas, Appellee, v. Jonathan WHISTLER, Appellant.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.
Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., BUSER and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Defendant Jonathan Whistler attempts to appeal the sentences the Wyandotte County District Court imposed on him in two cases because they do not conform to a plea agreement his lawyer worked out with the prosecutor. But the sentences are within the prescribed statutory ranges and, therefore, cannot be appealed. We lack jurisdiction to consider that point. Whistler also contends the district court could not consider his criminal history because that history was not proved to a jury—an argument the Kansas Supreme Court has consistently rejected. See State v. Hall, 298 Kan. 978, 991, 319 P.3d 506 (2014). We, therefore, dismiss the appeal in part and affirm in part.
In a case filed in November 2011, Whistler was charged with felony theft, possession of methamphetamine, and possession of drug paraphernalia. In April 2012, he was charged in a separate case with aggravated assault of a law enforcement officer, felony theft, criminal damage to property, and endangering a child. The factual circumstances underlying the charges are irrelevant to the points on appeal, so we dispense with them.
The prosecutor and Whistler worked out a plea agreement under which he would plead to the felony theft and possession of methamphetamine in one case and aggravated assault of a law enforcement officer and endangerment of a child in the other case. Under the agreement, Whistler would not dispute that he had a category B criminal history in the one case and a category A criminal history in the other case. As part of the agreement, the prosecutor and Whistler would make a joint recommendation to the district court for durational departures in both cases resulting in a controlling prison sentence of 54 months.
At the sentencing hearing in September 2012, the district court declined to follow the plea agreement. Citing Whistler's lengthy criminal history and concerns about community safety, the district court imposed a controlling prison sentence of 37 months in the first case and a controlling prison sentence of 37 months in the second case. The district court ordered that Whistler serve the sentences consecutively, so he faced 74 months in prison. The district court also imposed 12 months' postrelease supervision and other typical conditions associated with felony punishments. Whistler timely appealed.
For his first point, Whistler challenges the district court's decision to reject the plea agreement and to fashion an effective sentence 20 months longer than what the parties recommended. This aspect of the appeal poses a jurisdictional issue that must be addressed apart from the merits. In each case, the district court gave Whistler a sentence consistent with the mitigated presumptive statutory sentence. By statute, this court lacks jurisdiction to review a presumptive sentence. See K.S.A.2011 Supp. 21–6820(c)(1) (“[c] On appeal from a judgment or conviction entered for a felony committed on or after July 1, 1993, the appellate court shall not review: [1] Any sentence that is within the presumptive sentence for the crime.”). The district court's decision to have Whistler serve the guideline sentences consecutively does not afford us jurisdiction either. See State v. Flores, 268 Kan. 657, 660, 999 P.2d 919 (2000), disapproved on other grounds State v. Ross, 295 Kan. 1126, 1138, 289 P.3d 76 (2012).
We have no jurisdiction to consider the merits of Whistler's claim and, therefore, dismiss that aspect of his appeal.
For his second point, Whistler contends the district court improperly considered his criminal history in imposing sentence. He argues that the district court's use of his past convictions in determining an appropriate sentence impairs his constitutional rights because the fact of those convictions was not determined beyond a reasonable doubt by a jury. He relies on the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to support that proposition. Whistler acknowledges the Kansas Supreme Court has rejected that argument and has found the State's current sentencing regimen conforms to the Sixth and Fourteenth Amendments to the United States Constitution in its use of a defendant's past convictions in determining a presumptive statutory punishment. State v. Fischer, 288 Kan. 470, Syl. ¶ 4, 203 P.3d 1269 (2009) ; State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). We, therefore, decline Whistler's invitation to rule otherwise, especially in light of the Supreme Court's continuing affirmation of Ivory. Hall, 298 Kan. at 991 ; State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013).
Affirmed in part and dismissed in part.