STATE v. COADY (2007)

MEMORANDUM OPINION

Submitted for summary disposition pursuant to K.S.A. 21–4721(g) and (h).

Jason Coady appeals the district court's order denying his request for a downward dispositional or durational sentencing departure in case No. 06CR1689. He also appeals the use of his criminal history for sentencing purposes in that case.

Coady has moved for summary disposition of his appeal pursuant to K.S.A. 21–4721(g) and (h). The State has filed a response to Coady's motion, asking that Coady's sentences be affirmed.

Coady was convicted, upon his plea of guilty, of one count of aggravated burglary in violation of K.S.A. 21–3716, a severity level 5 person felony, and one count of theft in violation of K.S.A.2006 Supp. 21–3701(a)(1), (b)(3), a severity level 9 nonperson felony. Coady's criminal history score is “E.” The sentencing range for nondrug grid block 5–E is 46–49–51 months' incarceration. K.S.A.2006 Supp. 21–4704. The district court sentenced Coady to 46 months' incarceration for his primary offense and, using drug grid block 9–I, to 5 months' incarceration for his theft conviction. The district court ordered the two sentences to be served concurrently. The district court also denied Coady's motion for a downward dispositional or durational sentencing departure.

Coady first contends the district court abused its discretion by denying his request for a downward dispositional or durational sentencing departure. Because Coady received presumptive sentences for his felony convictions, we are without jurisdiction to consider this issue. See K.S.A. 21–4721(c)(1).

Coady next contends the use of his criminal history, without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for his primary offense in violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S.Ct. 2348 (2000). This issue has already been decided adversely to Coady and is without merit. See State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).

Affirmed in part and dismissed in part pursuant to Rule 7.041a (2006 Kan. Ct. R. Annot. 53).

PER CURIAM.

DAVIS, J., not participating.