Opinion
No. 111,182.
2014-10-10
STATE of Kansas, Appellee, v. Brandon D. LEE, Appellant.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.
Submitted for summary disposition pursuant to K.S.A.2013 Supp. 21–6820(g) and (h).
Before STANDRIDGE, P.J., ATCHESON, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Defendant Brandon D. Lee appeals the Sedgwick County District Court's imposition of a 22–month prison sentence and lifetime postrelease supervision on his guilty plea to an amended charge of indecent solicitation of a child, a felony under K.S.A.2013 Supp. 21–5508(a)(l). Lee raises two constitutional challenges to his sentence. Neither has merit. So we affirm the district court.
Based on an anticipated criminal history score of G, placing Lee in a border box on the sentencing grid, he and the State entered into a plea agreement allowing the State to recommend a prison sentence from the high end of the appropriate sentencing gridbox and allowing him to argue for alternative dispositions, including probation.
At the sentencing hearing on January 14, 2014, the Sedgwick County District Court found Lee to have a criminal history score of G. Consistent with the plea agreement, Lee argued for probation, citing his cooperation in this case and his successful completion of probation in an earlier case. The district court declined to make the required border-box findings and sentenced Lee to 22 months in prison, the low presumptive term. As required by statute, the district court also placed Lee on lifetime postrelease supervision. K.S.A.2013 Supp. 22–3717(d)(1)(G).
Lee timely appealed his sentence. This court granted Lee's request for leave to proceed without briefing under Supreme Court Rule 7.041A (2013 Kan. Ct. R. Annot. 63). The State filed a response generally agreeing that summary disposition of the appeal was appropriate.
Lee argues that his sentence violates the Sixth and Fourteenth Amendments to the United States Constitution because his criminal history was not proven beyond a reasonable doubt to a jury. He cites Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in support of his argument. But in Apprendi, the Court recognized: “ Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Emphasis added.) 530 U.S. at 490 The Apprendi decision does not support Lee's position. The Kansas Supreme Court has consistently upheld the constitutionality of the Kansas Sentencing Guidelines Act's treatment of criminal histories for sentencing purposes. E.g., State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). The court declined to extend Apprendi to require the State to prove a defendant's criminal history beyond a reasonable doubt to a jury. 273 Kan. at 47.
The court has regularly reaffirmed Ivory. See State v. Hall, 298 Kan. 978, 991, 319 P.3d 506 (2014); State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013). We, therefore, must decline Lee's invitation to rule otherwise. Additionally, because Lee was sentenced to 22 months' imprisonment—the low presumptive sentence—this court has no authority to hear a challenge to the term of imprisonment, even though Lee fell within a border box. See K.S.A.2013 Supp. 21–6820(c)(1) (“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)[A]ny sentence that is within the presumptive sentence for the crime....”); State v. Whitlock, 36 Kan.App.2d 556, 559, 142 P.3d 334, rev. denied 282 Kan. 796 (2006) (a decision by the court to deny probation in a border-box case shall not be considered a departure and shall not be subject to appeal).
Lee also challenges his lifetime postrelease supervision as violating the prohibitions on cruel and unusual punishment in the Eighth Amendment to the United States Constitution and Section 9 of the Kansas Constitution Bill of Rights. Lee and the State agree that the Kansas Supreme Court's decision in State v. Naputi, 293 Kan. 55, 260 P.3d 86 (2011), controls the issue in this case. In Naputi, the court held that “the issue of cruel and/or unusual punishment will not be reviewed for the first time on appeal.” 293 Kan. at 67. Lee did not assert an argument based on cruel and unusual punishment in any of the district court proceedings. He mentions the issue for the first time on appeal and, in light of Naputi, advances no substantive argument. This court, therefore, will not take up the challenge.
Affirmed.