State v. Pham

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NOT DESIGNATED FOR PUBLICATION

No. 117,558

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DANNY NGOC PHAM,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed December 15, 2017.
Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2016 Supp. 21-6820(g) and (h).

Before MALONE, P.J., LEBEN and POWELL, JJ.

PER CURIAM: Danny Pham was on probation after being convicted of multiple
crimes in four separate cases. When he pled guilty in 16CR835 to giving a worthless
check, a felony, committed while on probation, the district court sentenced him to 11
months' imprisonment and revoked his probation in the four prior cases based upon his
commission of a new crime. The cases have been consolidated on appeal. We granted
Pham's motion for summary disposition in lieu of briefs pursuant to Kansas Supreme
Court Rule 7.041A (2017 Kan. S. Ct. R. 48). The State has filed a response and requests
that the district court's judgment be affirmed.

Pham first claims that the district court erred when it revoked his probation
without imposing an intermediate sanction. But as Pham acknowledges, pursuant to
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K.S.A. 2016 Supp. 22-3716(c)(8), the court may revoke probation without having
previously imposed an intermediate sanction if the offender commits a new felony or
misdemeanor while on probation. Pham has not shown that the district court abused its
discretion by revoking his probation. See State v. Gumfory, 281 Kan. 1168, 1170, 135
P.3d 1191 (2006).

Next, Pham claims the district court erred in sentencing him to prison in 16CR835
when his presumptive sentence was probation. But pursuant to K.S.A. 2016 Supp. 21-
6604(f)(1), when a defendant is convicted of a new felony while on felony probation, the
court may sentence the defendant to prison for the new conviction even if the defendant
is otherwise presumptive probation, and the imposition of such a sentence does not
constitute a departure.

Finally, Pham claims the district court violated his constitutional 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 in 16CR835 without requiring it
to be proved to a jury beyond a reasonable doubt. But Pham acknowledges that our
Supreme Court rejected this claim in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). The
Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some
indication the Supreme Court is departing from its previous position. State v. Meyer, 51
Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). There is no indication that our Supreme
Court is departing from its position in Ivory.

Affirmed.