State v. Englund

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No. 108,446

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MIKAEL DWAYNE ENGLUND,
Appellant.


SYLLABUS BY THE COURT

1.
When the material facts involved in a suppression motion are undisputed, an
appellate court has unlimited review over the legal question of whether suppression is
warranted. An appellate court has unlimited review over the interpretation and interaction
of statutes. When a statute is not ambiguous, courts need not resort to statutory
construction. Only if a statute's language is unclear or ambiguous do courts resort to the
canons of construction or legislative history to determine legislative intent.

2.
The most fundamental rule of statutory construction is the intent of the legislature
governs if that intent can be ascertained. Courts must first attempt to ascertain legislative
intent through statutory language enacted, giving common words their ordinary meaning.
In so doing, courts must consider various provisions of an act as a whole with a view to
reconciling and bringing the provisions into workable harmony, if possible. Courts must
construe statutes to avoid unreasonable or absurd results. Courts presume the legislature
does not intend to enact meaningless legislation. When the legislature revises an existing
law, courts presume the legislature intended to change the law as it existed prior to the
amendment and acted with full knowledge of the existing law. Under the rule of lenity,
criminal statutes are generally construed strictly in favor of the accused. This rule is
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constrained by the principle that the interpretation of a statute must be reasonable and
sensible to affect the legislative design and intent of the law. The rule of lenity arises only
when there is a reasonable doubt as to a statute's meaning.

3.
When there is a conflict between two statutes the latest legislative expression
generally controls. But when the conflict is between a general principle of law and a more
specific enactment, the more specific statute controls.

4.
When considering K.S.A. 22-2503 and K.S.A. 22-2505 together, two statutes
enacted at the same time K.S.A. 62-1830 (Corrick 1964) was repealed, the legislature's
intent is clear: district magistrates may no longer issue search warrants outside their home
judicial district, but district judges can.

5.
The procedural safeguards of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000), do not apply to the calculation of a defendant's criminal
history score for sentencing purposes.

Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion filed April 11, 2014.
Affirmed.

Lydia Krebs, of Kansas Appellate Defender Office, for appellant.

Patrick Hurley and Jim McCabria, assistant district attorneys, Charles E. Branson, district
attorney, and Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., STANDRIDGE and STEGALL, JJ.

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MCANANY, J.: Mikael Dwayne Englund appeals from his convictions of
aggravated burglary and two counts of aggravated robbery, arguing that incriminating
evidence obtained in a search of his home and his subsequent confession should have
been suppressed and not admitted as evidence at his trial. Englund also argues that his
sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d
435 (2000).

The Lawrence police were investigating two separate robberies that took place at
an apartment in Douglas County. Englund lived in Franklin County. Englund became a
suspect, so in May 2011 the police obtained a search warrant from a district judge in
Douglas County to search Englund's Franklin County residence. The search yielded
incriminating evidence, and Englund was charged in Douglas County with a number of
crimes.

Englund filed a pretrial motion to suppress the evidence found during the search of
his Franklin County residence and his later confession and other incriminating evidence
that were the products of the search. Englund argued the evidence obtained as a result of
the search warrant, including Englund's eventual confession, should be suppressed
because the warrant unlawfully authorized a search of a residence outside the territorial
jurisdiction of the judge who issued it. See K.S.A. 22-2503.

The State argued the territorial restriction on the issuance of search warrants found
in K.S.A. 22-2503 applied only to search warrants issued by district magistrate judges,
not by district judges.

After the suppression hearing, the district court ruled K.S.A. 22-2503 applied only
to district magistrate judges and not to district judges. The court noted that although
K.S.A. 22-2202(14) defines "magistrate" as including both district magistrate judges and
district court judges, K.S.A. 22-2503 specifically places jurisdictional limits on search
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warrants issued by a "district magistrate judge." The evidence sought to be suppressed
was admitted at trial, and Englund was convicted of aggravated burglary and two counts
of aggravated robbery. He appeals, arguing that the evidence obtained as a result of the
Douglas County search warrant should have been suppressed.

Englund claims the search warrant was void when issued because the district court
judge who signed the warrant had no jurisdiction to issue it for the search of a residence
outside of his judicial district under the geographic limits set forth in K.S.A. 22-2503.
The State responds that the jurisdictional limits established in K.S.A. 22-2503 explicitly
refer only to district magistrate judges, not district judges.

Standards of Review

When, as here, the material facts are not in dispute, we have unlimited review over
the legal question of whether suppression is warranted. State v. Martinez, 296 Kan. 482,
485, 293 P.3d 718 (2013). This case also involves the interpretation and interaction of
various statutes, matters of law over which our review is unlimited. State v. Dale, 293
Kan. 660, 662, 267 P.3d 743 (2011). When there is no ambiguity, the court need not
resort to statutory construction. Only if the statute's language is unclear or ambiguous do
we resort to the canons of construction or legislative history to construe the legislature's
intent. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).

The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223
P.3d 780 (2010). We must first attempt to ascertain legislative intent through statutory
language enacted, giving common words their ordinary meaning. Urban, 291 Kan. at
216. When construing statutes to determine legislative intent, we must consider various
provisions of an act as a whole with a view of reconciling and bringing the provisions
into workable harmony if possible. State v. Coman, 294 Kan. 84, 93, 273 P.3d 701
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(2012). We must construe statutes to avoid unreasonable or absurd results and presume
the legislature does not intend to enact meaningless legislation. State v. Turner, 293 Kan.
1085, 1088, 272 P.3d 19 (2012). In addition, when the legislature revises an existing law,
we presume the legislature intended to change the law as it existed prior to the
amendment and acted with full knowledge of the existing law. See State v. Snellings, 294
Kan. 149, 157, 273 P.3d 739 (2012); State v. Henning, 289 Kan. 136, 144-45, 209 P.3d
711 (2009). Finally, we are mindful of the rule of lenity, under which criminal statutes
are generally construed strictly in favor of the accused. This rule is constrained by the
principle that the interpretation of a statute must be reasonable and sensible to effect the
legislative design and intent of the law. The rule of lenity arises only when there is a
reasonable doubt of the statute's meaning. State v. Cameron, 294 Kan. 884, 899, 281 P.3d
143 (2012).

Englund's Arguments

Englund's contentions have been ably and conscientiously advanced in his
appellate brief and in the forceful oral argument of his appellate counsel. K.S.A. 22-2503,
enacted in 1970, is at the center of Englund's argument. It provides: "Search warrants
issued by a district magistrate judge may be executed only within the judicial district in
which said judge resides or within the judicial district to which said judge has been
assigned pursuant to K.S.A. 20-319."

Central to Englund's arguments are Article 3, § 6(b) of the Kansas Constitution
which extends to district courts "such jurisdiction in their respective districts as may be
provided by law," and K.S.A. 20-301a which limits a judge's judicial power to the
judicial district in which the judge sits. Englund argues that the legislature has
specifically granted to district judges extra-judicial district jurisdiction in issuing arrest
warrants, summonses, witness subpoenas, and search warrants related to tracking devices.
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He concludes that these statutes would be meaningless if district judges already had
judicial authority beyond their judicial districts.

Englund notes that K.S.A. 62-1830 (Corrick 1964), the predecessor to K.S.A. 22-
2502, provided that a search warrant could be "directed to any peace officer of the state."
K.S.A. 62-1830 (Corrick 1964) was repealed, and he claims no statute was enacted to
specifically restore the ability of a district judge to issue a search warrant to be executed
in another judicial district. He concludes that if the legislature had intended to restore the
authority of a district judge to issue search warrants for locations beyond the judge's
home district, the legislature easily could have said so, but it has not.

In considering Englund's argument, we turn to our constitutional and statutory
scheme for the territorial jurisdiction of our judges in Kansas, which begins with Article
3, § 1, of the Kansas Constitution, which provides:

"The judicial power of this state shall be vested exclusively in one court of
justice, which shall be divided into one supreme court, district courts, and such other
courts as are provided by law; and all courts shall have a seal. The supreme court shall
have general administrative authority over all courts in this state."

The district courts referred to in the constitution are found in each of our 105 counties.
K.S.A. 20-301 states: "There shall be in each county a district court, which shall be a
court of record, and shall have general original jurisdiction of all matters, both civil and
criminal, unless otherwise provided by law, and shall have such appellate jurisdiction as
prescribed by law." Article 3, § 6(a) of the Kansas Constitution provides for the creation
of judicial districts. The various counties were originally grouped into five judicial
districts. There are currently 31 judicial districts. As a general rule, each of the more
populous counties constitutes a separate judicial district. The counties that are one-county
judicial districts are Shawnee, Douglas, Johnson, Sedgwick, Cowley, Reno, and
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Wyandotte. The rest of the counties are in multi-county districts comprised of from two
to seven counties. In our present case, the search warrant was issued in Douglas County,
a single-county judicial district, for the search of a residence in Franklin County, which is
in a different judicial district.

Article 3, § 6(a) of the Kansas Constitution further provides: "Each judicial
district shall have at least one district judge." Thus, we have at least one district judge in
each of our 31 judicial districts. Article 3, § 6(b) of the Kansas Constitution provides:
"The district courts shall have such jurisdiction in their respective districts as may be
provided by law."

Since 1983 our legislature has required that there also be at least one judge in each
of our 105 counties. K.S.A. 20-301b provides: "In each county of this state there shall be
at least one judge of the district court who is a resident of and has the judge's principal
office in that county." Thus, there must be at least one "district judge" in each judicial
district, but also at least one "judge of the district court" in each county.

With the unification and reorganization of our state judicial system in the 1970s,
the judges in the various counties became "judges of the district court" and were divided
into three classes: district judges, associate district judges, and district magistrate judges.
The position of associate district judge was later eliminated. Thereafter, K.S.A. 20-301a
was enacted, which states: "There shall be two classes of judges of the district courts
established pursuant to K.S.A. 20-301: District judges and district magistrate judges. As
used in this act, 'judge of the district court' means any of such judges." K.S.A. 20-301a
also sets for the general geographic limits on the jurisdiction of the judges of the district
court:

"Such judges shall have the jurisdiction, powers and duties prescribed by this act and
otherwise prescribed by law. The judicial power and authority of a judge of the district
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court in each judicial district may be exercised anywhere within such judicial district and
may be exercised anywhere within any other judicial district when assigned to hear any
proceeding or try any cause in such judicial district as provided in K.S.A. 20-319. . . ."
(Emphasis added.)

While the general rule stated in K.S.A. 20-301a is that the judicial power of a
judge is limited to the judge's home judicial district, a few years earlier our legislature
had specifically expanded the jurisdictional reach of the judges of the district court in
certain instances. K.S.A. 22-2302(1) gives magistrates the authority to issue arrest
warrants and summonses. As provided in K.S.A. 22-2305(2): "The warrant may be
executed or the summons may be served at any place within the jurisdiction of the state
of Kansas." Similarly, K.S.A. 22-3214 gives criminal defendants the right to subpoena
witnesses to testify at the defendant's trial or at other hearings. This statute further
provides: "(2) All courts having criminal jurisdiction shall have the power to compel the
attendance of witnesses from any county in the state to testify."

Search warrants in Kansas may be issued by magistrates. K.S.A. 2010 Supp. 22-
2502(a). The term "magistrate" as used in this statute is defined in K.S.A. 22-2202(14) as
"an officer having power to issue a warrant for the arrest of a person charged with a crime
and includes justices of the supreme court, judges of the court of appeals and judges of
the district courts." In the district court, this would include both district judges and
district magistrate judges.

Clearly, the legislature has the authority to define the extent of the judicial power
judges of the district court may exercise. As noted earlier, Article 3, § 6(b) of the Kansas
Constitution provides: "The district courts shall have such jurisdiction in their respective
districts as may be provided by law." Englund contends that the legislature's definitive
description of the geographic confines of the judicial power of the judges of the district
court is found in K.S.A. 20-301a, which states in relevant part:
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"The judicial power and authority of a judge of the district court in each judicial district
may be exercised anywhere within such judicial district and may be exercised anywhere
within any other judicial district when assigned to hear any proceeding or try any cause in
such judicial district as provided in K.S.A. 20-319. . . ."

Englund finds support in Verdigris Conservancy District v. Objectors, 131 Kan.
214, 218, 289 Pac. 966 (1930), a case in which our Supreme Court considered the judicial
authority of four district court judges from different counties who convened in Wilson
County to determine the validity of an act organizing a conservancy district for the
purpose of preventing and protecting against floods. The conservancy district covered the
flood plain of the Verdigris River and its tributaries in the counties of Elk, Greenwood,
Montgomery, Wilson, and Woodson.

The court in Verdigris addressed the judicial authority of the panel of district court
judges who convened in Wilson County. In doing so, the court confined its analysis to
provisions in the Kansas Constitution and did not consider any of the statutes at issue in
our present case. The court noted the provision in Article 3, § 1, of the Kansas
Constitution which refers to "such other courts, as are provided by law." The court
concluded that the legislature had the power to create an inferior court such as a
conservancy court. But because of the constitutional prohibition against a district judge
holding another office while serving as a judge, the court concluded the legislature could
not "create a conservancy court, having judicial power, composed of judges of several
judicial districts." 131 Kan. at 219. Thus, Verdigris was decided on principles not at issue
in our case.

Nevertheless, Englund points to the portion of the opinion in which the court
discussed the organizational structure of our court system. The court stated:

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"It is manifest from the territorial organization of the judicial branch of the
government which has been described that judicial business is to be done in judicial
districts, by district courts and district judges acting within and for their respective
districts; and a judge of the district court chosen for district A cannot be empowered to
transport his judicial authority to district B and exercise his authority there, any more
than he could be empowered to exercise the functions of judge of district B, in district B,
while the judge of district B is present and qualified to act. The result is that when Judges
Ayres, Forrest and Holdren left their judicial districts and went to Judge Brown's district
they were without judicial authority there. They could not act as judges of the district
court of Wilson county, with power to overrule Judge Brown, or act in any other judicial
capacity, and the provision in the conservancy act for a conservancy court consisting of
more than one judge is void." 131 Kan. at 218.

If K.S.A. 20-301a and the dicta from Verdigris were to establish a baseline for
determining the geographic limits of a district judge's judicial authority, the issue then
would become how and in what circumstances our legislature expanded the power of our
district judges to exercise their judicial authority beyond the borders of their home
judicial districts.

Englund points out, as noted earlier, that our legislature has specifically expanded
the geographic reach of magistrates (including district judges and district magistrate
judges) when issuing arrest warrants and summonses under K.S.A. 22-2302(1) and when
issuing witness subpoenas under K.S.A. 22-3214(2). By specific legislative enactments
arrest warrants, summonses, and witness subpoenas can be executed anywhere in the
state. Englund argues that these enactments would have been a worthless exercise if our
judges already had the power to act in this fashion outside their judicial districts.

Englund opines that these legislative enactments solved the practical problem of
persons subject to an arrest warrant, summons, or subpoena fleeing the jurisdiction to
avoid service, a problem not present when issuing a warrant for the search of a dwelling
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affixed to the land. Thus, he argues, there has been no legislative incentive to extend the
geographic reach of our district judges in issuing search warrants.

The legislature formerly provided for statewide execution of search warrants in
K.S.A. 62-1830 (Corrick 1964) but repealed that statute in 1970. It enacted K.S.A. 22-
2503 that same year and restricted district magistrate judges from issuing extra-judicial
district search warrants. Englund argues that in so doing, the legislature failed to restore
to district judges the former power to issue statewide search warrants previously provided
for in K.S.A. 62-1830 (Corrick 1964).

K.S.A. 2010 Supp. 22-2502 permits search warrants for the installation and use of
a tracking device for an initial period not to exceed 30 days. Englund points to the
legislature's recent amendment to K.S.A. 22-2503 in 2013 which deals with warrants for
such tracking devices. K.S.A. 2013 Supp. 22-2503 now reads:

"(a) Except as provided in subsection (b), search warrants issued by a district
magistrate judge may be executed only within the judicial district in which the judge
resides or within the judicial district to which the judge has been assigned pursuant to
K.S.A. 20-319, and amendments thereto.
"(b) Search warrants issued pursuant to subsection (a)(2) of K.S.A. 22-2502, and
amendments thereto:
(1) That are issued by a district judge may be executed anywhere within the state;
and;
(2) shall be valid during the time period specified by the warrant regardless of
whether the tracking device or the subject person or property leaves the issuing
jurisdiction.
"(c) As used in this section, 'tracking data' and 'tracking device' have the same
meanings as defined in K.S.A. 22-2502, and amendments thereto." (Emphasis added.)

This statute allows a district magistrate judge to authorize placing a tracking device on a
vehicle located in the judicial district, and the use of the device continues to be proper if
12

the vehicle leaves the judicial district. District judges can issue warrants for the use of
such tracking devices anywhere in the state.

Englund concludes that the only statutory enactments which expand upon the
jurisdictional limits set forth in K.S.A. 20-301a have done so in clear and unequivocal
language, language which is not found in the version of K.S.A. 22-2503 applicable to this
case. He contends our legislature has clearly demonstrated in K.S.A. 22-2305(2), K.S.A.
22-3214(2), and most recently in the 2013 amendments to K.S.A. 22-2503 that it
understands how to insert the necessary language to create an exception to the general
limitations on territorial jurisdiction set forth in K.S.A. 20-301a. As stated in State v.
Mishmash, 295 Kan. 1143, 290 P.3d 243 (2012); "[w]hen the legislature intends to limit a
category, it clearly understands how to insert the necessary language."

Englund concludes that there is no legislative enactment which extends a district
judge's jurisdictional reach in issuing search warrants beyond the judge's home district as
specified in K.S.A. 20-301a. Further, he reminds us that to achieve the State's objective
would require us to rewrite the statute by adding a provision not found there, and this we
are not permitted to do. See State v. Marx, 289 Kan. 657, 673, 215 P.3d 601 (2009).

The State's Arguments

We consider the State's arguments in light of the same question raised in the
analysis of Englund's arguments. If K.S.A. 20-301a and the dicta quoted earlier from
Verdigris were to establish the general baseline geographic limit on the power of a
district judge, has our legislature expanded that judicial power when it comes to issuing
search warrants?

The State argues that K.S.A. 22-2503 on its face imposes a geographic limit on
search warrants issued by district magistrate judges, but conspicuously absent from the
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statute is any limitation on district judges. The plain reading of the statute supports this
argument. The State argues that we can infer from this that the legislature intended the
district judges to still have the power to issue search warrants statewide. The State argues
that by specifically limiting the power of district magistrates, the clear implication is that
district judges continue to have the power to issue search warrants to be executed outside
of the judge's home district. This is consistent with holdings by the United States District
Court for the District of Kansas applying state law in Lord v. City of Leavenworth, No.
08-2171-JWL, 2009 WL 129367 (D. Kan. 2009), at *4; and United States v. Aikman, No.
09-10097-01-JTM, 2010 WL 420063 (D. Kan. 2010), at *6.

If there were any ambiguity in the meaning of the pre-2013 version of K.S.A. 22-
2503 that applies to this case, the legal maxim, expression unius est exclusion alterius,
(expressing the one excludes the other), would support the State's analysis. As stated in
State v. Coman, 294 Kan. 84, 87, 273 P.3d 701 (2012); "[c]ourts apply that maxim to
presume that when the legislature includes specific items in a statutory list, it intends to
exclude similar items not expressly listed." Judges of the district court are comprised of
two classes of judges: district judges and district magistrate judges. K.S.A. 20-301a.
Within the admittedly small universe of judges of the district court, limiting the
geographic authority of district magistrate judges without reference to district judges
suggests that the geographic limitation does not apply to district judges when it comes to
issuing search warrants.

But the real issue is whether the repeal of the K.S.A. 62-1830 (Corrick 1964) had
the effect of ending a district judge's power to issue a warrant to conduct a search
anywhere in the state and, if so, whether the legislature ever restored that power through
new legislation.

K.S.A. 62-1830 (Corrick 1964) was repealed in 1970. K.S.A. 22-2503 was enacted
that same year. K.S.A. 22-2503 was enacted as part of the 1970 recodification of the
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Kansas Criminal Code. Before 1970, there was no statutory limit on where a search
warrant issued by a magistrate could be served within the state. K.S.A. 62-1830 (Corrick
1964) stated:

"A warrant shall issue upon affidavit or upon oral testimony given under oath and
recorded before the magistrate or judge. If the magistrate or judge is satisfied that there is
probable cause for the issuance of a warrant, he shall issue such warrant describing the
property to be searched for. . . . The warrant shall be directed to any peace officer of the
state of Kansas . . . and shall command the officer to search . . . and to seize such
property." (Emphasis added.)

The statute applied to search warrants issued by district judges and district magistrate
judges alike. See State v. Lamb, 209 Kan. 453, 469, 497 P.2d 275 (1972), overruled on
other grounds in State v. Jacques, 225 Kan. 38, 587 P.2d 861 (1978).

The newer statute, K.S.A. 22-2503, took from district magistrate judges the power
to issue search warrants outside their home judicial districts. But the legislature also
enacted K.S.A. 22-2505 in 1970, which states:

"A search warrant shall be issued in duplicate and shall be directed for execution
to all law enforcement officers of the state, or to any law enforcement officer specifically
named therein."

This language in K.S.A. 22-2505 had previously been contained in K.S.A. 62-1830
(Corrick 1964), the statute that was repealed in 1970 when K.S.A. 22-2503 was enacted.
The language in K.S.A. 22-2505 ("directed for execution to all law enforcement officers
of the state") had previously been the basis for extra-judicial district search warrants
under the old repealed statute, K.S.A. 62-1830 (Corrick 1964). See State v. Sodders, 255
Kan. 79, 872 P.2d 736 (1994), superseded by statute as stated in State v. Mendez, 275
Kan. 412, 66 P.3d 811 (2003).
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When K.S.A. 62-1830 (Corrick 1964) was repealed and K.S.A. 22-2503 was
enacted that same year, district magistrate judges were prohibited from issuing extra-
judicial district search warrants, but the provision for statewide execution of search
warrants formerly found in K.S.A. 62-1830 (Corrick 1964) was preserved in K.S.A. 22-
2505. Magistrates authorized to issue search warrants in the district court are district
judges and district magistrate judges. If district magistrate judges can no longer issue
warrants for searches outside their home judicial district, that leaves only district judges;
and if district judges cannot issue warrants for searches outside their districts, then
enacting K.S.A. 22-2505 was a meaningless gesture. The State reminds us that we
presume the legislature does not intend to enact meaningless legislation. Turner, 293
Kan. at 1088.

Englund counters with the argument that K.S.A. 20-301a was enacted in 1976,
several years after K.S.A. 22-2505 became law, and "'where there is a conflict between
two statutes the latest legislative expression controls.'" Sodders, 255 Kan. at 83. But here
we have a conflict between a general principle of law (K.S.A. 20-301a) and a more
specific enactment dealing not with the overall jurisdiction of judges, but their specific
jurisdiction in issuing search warrants (K.S.A. 22-2505). In this situation, the more
specific statute controls. Turner, 293 Kan. at 1088. Further, when seeking to determine
legislative intent, we must consider various provisions in pari materia with a view to
reconciling and bringing the provisions into workable harmony if possible. Coman, 294
Kan. at 93.

Returning to first principles, the intent of the legislature governs if that intent can
be determined. While in other instances the legislature has specifically referred to the
jurisdictional reach of our district judges, the lack of that specific reference in the version
of K.S.A. 22-2503 at the time this search warrant was issued is not the controlling factor.
When we consider K.S.A. 22-2503 and K.S.A. 22-2505 together, two statutes enacted at
16

the same time K.S.A. 62-1830 (Corrick 1964) was repealed, the legislature's intent is
clear: district magistrates may no longer issue search warrants outside their home
judicial district, but district judges can. Thus, we conclude the district court did not err in
refusing to suppress the evidence obtained in the search of Englund's residence in
Franklin County.

Apprendi Sentencing Issue

Englund also contends that the district court violated his constitutional rights when
it used his criminal history to calculate his sentence without following the procedural
safeguards of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000). Apprendi requires that "any fact that increases the penalty for a crime beyond the
prescribed statutory maximum . . . be submitted to a jury and proved beyond a reasonable
doubt." 530 U.S. at 490. But a defendant's prior convictions are explicitly excluded from
this requirement. 530 U.S. at 490.

The Kansas Supreme Court has recognized the continuing validity of this prior
conviction exception to Apprendi's requirements. See State v. Ivory, 273 Kan. 44, 46-48,
41 P.3d 781 (2002). Because our Supreme Court has given no indication that it is
departing from Ivory, we are bound by it. See State v. Ottinger, 46 Kan. App. 2d 647,
655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). The district court did not
violate Englund's constitutional rights when it used his criminal history score to calculate
his sentence.

Affirmed.