State v. Dawn

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NOT DESIGNATED FOR PUBLICATION

Nos. 115,403
115,404

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RICKY DAWN,
Appellant.


MEMORANDUM OPINION

Appeal from Anderson District Court; ERIC W. GODDERZ, judge. Opinion filed February 24,
2017. Affirmed in part and dismissed in part.

Submitted for summary disposition pursuant to K.S.A. 2015 Supp. 21-6820(g) and (h).


Before ARNOLD-BURGER, C.J., ATCHESON and BRUNS, JJ.

Per Curiam: Ricky Dawn appeals his sentence following his no contest pleas to
driving under the influence of alcohol in case 14TR492 (2014 case) and fleeing and
eluding law enforcement in case 15TR63 (2015 case). We granted Dawn's motion for
summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2017 Kan.
S. Ct. R. 48). Because we find that the district court did not violate Dawn's constitutional
rights by using his prior criminal history to increase his sentence without requiring the
State to prove the criminal history to a jury beyond a reasonable doubt, we affirm the
district court's sentence in this case. In addition, because Dawn was given a presumptive
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sentence, this court lacks jurisdiction to consider his challenge to that sentence.
Accordingly, we affirm in part and dismiss in part.

In the 2014 case, the State charged Dawn with four misdemeanors—driving under
the influence (second offense), refusal to submit to a test to determine the presence of
alcohol, driving while a habitual violator, and refusal to submit to a preliminary breath
test. In the 2015 case, the State charged Dawn with fleeing or attempting to elude a police
officer, a severity level 9 person felony. The State also charged Dawn with refusal to
submit to a test to determine the presence of alcohol or drugs, driving while a habitual
violator, and transportation of liquor in an open container (second offense). Dawn entered
a plea of no contest to Count I of the 2014 case (driving under the influence), and in
exchange the State dropped the other charges. Dawn also entered a plea of no contest to
Count I of the 2015 case (fleeing or attempting to elude a police officer). In exchange, the
State dropped the other charges.

At sentencing, the district court judge noted that Dawn's presentence investigation
report for the 2015 case revealed that Dawn had a criminal history score of B and had
committed a severity level 9 person offense. The standard sentence for such an offense is
14 months' imprisonment. Dawn filed a motion for dispositional departure which the
State did not oppose. However, the district court denied the motion and sentenced Dawn
to the presumptive standard sentence of 14 months in prison. The court sentenced Dawn
to 6 months in the county jail in the 2014 case, set to run concurrent with Dawn's
sentence in the 2015 case.

Dawn argues that the district court violated his rights under Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by using his prior
criminal history to increase his sentence without requiring the State to prove the criminal
history to a jury beyond a reasonable doubt. But as Dawn acknowledges, this argument
has previously been rejected by the Kansas Supreme Court. See State v. Ivory, 273 Kan.
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44, 46-47, 41 P.3d 781 (2002) (holding that Apprendi does not require proof of a prior
conviction by a jury beyond a reasonable doubt). This court is duty bound to follow
Supreme Court precedent absent some indication the court is departing from its previous
position. State v. Singleton, 33 Kan. App. 2d 478, 488, 104 P.3d 424 (2005).
Accordingly, Dawn's Apprendi challenge fails.

Dawn also argues that the district court abused its discretion in denying his motion
for a downward dispositional departure. The district court sentenced Dawn to the
presumptive sentence of 14 months in prison. See K.S.A. 2015 Supp. 21-6804(a)
(showing that the presumptive sentence for a person with a criminal history score of B
who has committed a level 9 felony is 13-14-15 months in prison). This court has no
jurisdiction to review presumptive sentences. K.S.A. 2015 Supp. 21-6820(c)(1). Thus,
this part of the appeal must be dismissed.

Affirmed in part and dismissed in part.