State v. Carroll, 105,969.

• Decision Date: 01 June 2012
• Docket Number: No. 105,969.,105,969.
• Citation: 277 P.3d 448
• Parties: STATE of Kansas, Appellee, v. Donald CARROLL, Appellant.
• Court: Kansas Court of Appeals

277 P.3d 448

STATE of Kansas, Appellee,
v.
Donald CARROLL, Appellant.

No. 105,969.

Court of Appeals of Kansas.

June 1, 2012.

Appeal from Wyandotte District Court; John J. McNally, Judge.
Before GREEN, P.J., MALONE and McANANY, JJ.

MEMORANDUM OPINION
PER CURIAM.

Donald Carroll appeals the district court's denial of his request for a dispositional sentencing departure. Carroll has moved for summary disposition of his sentencing appeal under K.S.A. 21–4721(g) and (h) and Kansas Supreme Court Rule 7.041(a) (2011 Kan. Ct. R. Annot. 60). The State has filed no response.

Pursuant to a plea agreement, Carroll pled no contest to and was convicted of one count of possession of cocaine, a severity level 4 drug felony. His criminal history score was A. Therefore, the presumptive sentencing range was 37–40–42 months' imprisonment. See K.S.A. 21–4705. The district court granted Carroll's motion for downward durational departure, but denied a dispositional departure from imprisonment to probation.

Carroll contends that the district court abused its discretion in denying the dispositional departure because Carroll needed drug treatment and his drug usage had resulted from stressful events in his personal life. This court, however, does not have jurisdiction to consider this issue. “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) Any sentence that is within the presumptive sentence for the crime.” K.S.A. 21–4721(c)(1). The imposition of imprisonment, which is what Carroll wants to challenge on appeal, was a presumptive sentence. Accordingly, this court is without jurisdiction to consider this issue on appeal.

Carroll also claims the district court erred by using a juvenile adjudication in calculating his criminal history score. But the Kansas Supreme Court has specifically held that juvenile adjudications may be included in calculating a defendant's criminal history score. State v. Hitt, 273 Kan. 224, Syl. ¶ 1, 42 P.3d 732,cert. denied537 U.S. 1104 (2002). The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). There is no indication that the Kansas Supreme Court is departing from its position in Hitt. Thus, the district court did not err by using Carroll's juvenile adjudication in calculating...