Opinion
No. 111,677.
2015-03-6
STATE of Kansas, Appellee, v. Isaac BELTRAN, Appellant.
Appeal from Reno District Court; Timothy J. Chambers, Judge.Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Timothy J. Chambers, Judge.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this sentencing appeal, Isaac Beltran contends the sentence he received, which was the highest term in the presumptive sentencing grid block, violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution. After considering both of Beltran's constitutional arguments, we affirm the district court in part and dismiss the appeal in part.
Factual and Procedural Background
As a result of a plea agreement, Beltran pled no-contest to one count of unintentional but reckless second-degree murder. In presenting its factual basis for the charge, the State asserted that on October 31, 2012, Beltran and the victim, Dustin Brooks, were attending a Halloween party at which a disturbance involving “scuffling or fighting” occurred. During the disturbance, Brooks pulled a loaded .38 caliber pistol from his pocket, ran toward Brooks—with the pistol raised above his head and pointed downward—and fired two shots, one of which struck and killed Brooks.
Beltran's sentencing was held on March 7, 2014. At that time, the district court heard statements from Brooks' family members. Beltran addressed the district court stating: “[M]y intentions were not for that man to die. When I pulled that trigger I was a dumb kid, drunk, that barely remembers that night with a gun.” The presentencing investigation report, which the district court accepted with no objection from any party, calculated Beltran's criminal history score as a G based, in part, on the fact that he was on felony probation for cocaine possession at the time of the murder.
Although, pursuant to the plea agreement, both parties recommended a sentence consistent with the mid-range or standard term in the presumptive sentencing grid block, the district court opted to impose the higher term of 154 months' imprisonment within the grid block, followed by 36 months' postrelease supervision. The district judge explained his sentencing decision by observing that Beltran was on probation at the time of the murder and “it was against the law for him to even have a firearm.”
Beltran filed a timely appeal.
Discussion
For the first time on appeal, Beltran raises two constitutional arguments. First, Beltran contends the district court enhanced his sentence in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when the court used his criminal history for sentencing purposes yet his prior convictions were neither included in the complaint nor presented to a jury and proven beyond a reasonable doubt.
As Beltran candidly concedes, our Supreme Court addressed and rejected similar arguments in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). In Ivory, our Supreme Court held the use of a defendant's criminal history to calculate his or her presumptive sentence does not violate due process as interpreted by Apprendi. 273 Kan. at 46–48. There is no evidence indicating the Supreme Court is considering a departure from its holdings in Ivory, therefore, we are duty bound to follow its controlling precedent. See State v. Hall, 298 Kan. 978, 991, 319 P.3d 506 (2014) (reaffirming Ivory). As to this issue, the district court's sentence is affirmed.
Second, Beltran asserts the district court violated his constitutional rights and the United States Supreme Court's holdings in Apprendi and Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), when it sentenced him to the higher term in the presumptive sentencing grid block without a jury determination of the facts in support of the enhanced sentence.
As Beltran acknowledges, our Supreme Court addressed and rejected similar arguments in State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008). In Johnson, our Supreme Court concluded that a district judge has discretion to impose any of the three terms within the sentencing grid block, based upon the conviction and the defendant's criminal history, without conducting any fact finding or stating factors on the record. 286 Kan. at 851. As thoroughly explained in Johnson, the “upper term” in the grid block is the “prescribed ‘statutory maximum’ sentence,” and any sentence that falls within the presumptive sentencing range is constitutional and does not violate the holdings in Apprendi or Cunningham. Johnson, 286 Kan. at 851.
Finally, in Johnson, the court explained that under K.S.A. 21–4721(c)(1), appellate courts lack jurisdiction to review any individual presumptive sentence. 286 Kan. at 851–52. Only recently, the Supreme Court reaffirmed this holding. See State v. Hilt, 299 Kan. 176, 201, 322 P.3d 367 (2014) (reaffirming Johnson). Accordingly, because Beltran's sentence falls within the presumptive sentencing range, we are without jurisdiction, under K.S.A.2013 Supp. 21–6820(c)(1), to consider the district court's imposition of the higher term. This issue is dismissed. See Johnson, 286 Kan. at 851–52.
Affirmed in part and dismissed in part.