Law Review and Bar Journal References:

"Apprendi v. New Jersey: Protecting the Constitutional Rights of Criminals in Sentencing," Stephanie B. Stewart, 49 K.L.R. 1193 (2001).

"Surviving Apprendi: A Procedural Ideal Meets the Real World of Determinate Sentencing," Teresa L. Sittenauer, 72 J.K.B.A. No. 1, 44 (2003).

"Durational and Dispositional Departures Under the Kansas Sentencing Guidelines Act: The Kansas Supreme Court's Uneasy Passage Through Apprendi-land [State v. Carr, 53 P.3d 843 (Kan. 2002)]," Steven J. Crossland, 42 W.L.J. 687 (2003).

CASE ANNOTATIONS

1. Whether defendants whose sentences are converted to guidelines remain subject to postrelease supervision upon release examined. Phillpot v. Shelton, 19 Kan. App. 2d 654, 655, 875 P.2d 289 (1994).

2. Whether exclusion of drug offenders from retroactive provisions of sentencing guidelines lacks rational relationship to purpose of section examined. State v. Jones, 19 Kan. App. 2d 913, 878 P.2d 845 (1994).

3. Whether juvenile adjudication can be used to enhance severity level of theft conviction examined. In re J.E.M., 20 Kan. App. 2d 596, 599, 890 P.2d 364 (1995).

4. Whether substantial and compelling reasons existed for departure from presumptive sentence examined. State v. Richardson, 20 Kan. App. 2d 932, 933, 901 P.2d 1 (1995).

5. Whether lesser severity levels of aggravated battery are included offenses or lesser included offenses of level 4 aggravated battery examined. State v. Ochoa, 20 Kan. App. 2d 1014, 1017, 895 P.2d 198 (1995).

6. Denial of jury trial in juvenile proceeding not reviewable notwithstanding ramifications of juvenile adjudication hereunder. In re J.T.M., 22 Kan. App. 2d 673, 681, 922 P.2d 1103 (1996).

7. Appeal dismissed for lack of jurisdiction; imposition of consecutive sentences not inconsistent with presumptive sentences and does not constitute departure sentence. State v. Ware, 262 Kan. 180, 182, 938 P.2d 197 (1997).

8. Retroactivity examined; statute defining length or type of criminal punishment is substantive and applies prospectively unless otherwise expressly provided. State v. Ford, 262 Kan. 206, 208, 936 P.2d 255 (1997).

9. KSGA retroactivity provisions do not violate equal protection or ex post facto clauses. Ploeckelmann v. Finney, 978 F. Supp. 1432, 1433 (1997).

10. Eligibility for retroactive sentence conversion is determined as of July 1, 1993; later events will not make a prisoner eligible. Price v. State, 28 Kan. App. 2d 854, 21 P.3d 1021 (2001).

11. In case of illegal sentence being imposed, state may request new trial or that conviction stand but with legal sentence. State v. Johnson, 30 Kan. App. 2d 1133, 55 P.3d 927 (2002).

12. Use of prior convictions to calculate defendant's criminal history score held constitutional. Hunter v. Werholtz, 505 F.3d 1080 (10 th Cir. 2007).

13. Mentioned; habeas petition dismissed that argued sentencing unconstitutional because jury did not determine whether petition convicted of earlier crimes. Hunter v. Werholtz, 505 F.3d 1080 (10 th Cir. 2007).

14. Prisoner action alleging improper sentencing for failure to convert his 1991 sentence to 1993 guidelines, action dismissed. Davis v. Kansas Dept. of Corrections, 507 F.3d 1246 (2007).

15. Legislature explicitly superseded previous sentencing scheme when Kansas sentencing guidelines act adopted. State v. Ruiz-Reyes, 285 Kan. 650, 655, 175 P.3d 849 (2008).

16. Constitutional rights not violated by use of criminal history score that was enhanced by prior convictions not determined by jury. State v. Fewell, 286 Kan. 370, 394, 184 P.3d 903 (2008).

17. Cited in opinion holding that juveniles have a constitutional right to jury trials. In re L.M., 286 Kan. 460, 467, 186 P.3d 164 (2008).

18. Cited; court upholds consecutive sentences for longest prison term in sentencing presumptive grid block; sentence cannot be appealed. State v. Johnson, 286 Kan. 824, 841, 190 P.3d 207 (2008).

19. Under sentencing guidelines court has discretion to sentence defendant to any sentence within presumptive range; no constitutional error. State v. Gallegos, 286 Kan. 869, 871, 190 P.3d 226 (2008).

20. Cited; no error found in sentencing by imposing the high numbers in appropriate grid boxes for on-grid convictions. State v. Cook, 286 Kan. 1098, 1112, 191 P.3d 294 (2008).

21. Cited; mandatory imprisonment for sex crime, mitigating circumstances insufficient for downward departure sentence. State v. Ortega-Cadelan, 287 Kan. 157, 162, 163, 194 P.3d 1195 (2008).

22. Sentencing act establishes an 18 to 24 month sentence of presumptive probation for felony drug offense and criminal history score of 4-E. State v. Andelt, 289 Kan. 763, 217 P.3d 976 (2009).

23. Sentencing defendant to upper number in sentencing guidelines grid box without jury involvement held no constitutional violation. State v. Krider, 41 Kan. App. 2d 368, 202 P.3d 722 (2009).

24. If uncounseled misdemeanor conviction resulted in no prison term, conviction may be used to enhance later sentence. State v. Long, 41 Kan. App. 2d 477, 203 P.3d 45 (2009).

25. Defendant charged hereunder; district magistrate judges authorized to conduct felony arraignments, when. State v. Valladarez, 288 Kan. 671, 206 P.3d 879 (2009).

26. Defendant's prior convictions entered prior to adoption of sentencing guidelines constituted person felonies for purposes of sentencing after guidelines adoption, since such offenses were classified as person felonies pre-guidelines adoption. State v. Smith, 49 Kan. App. 2d 19, 303 P.3d 716 (2013).

27. When calculating a defendant's criminal history that includes out-of-state convictions committed prior to enactment of the Kansas sentencing guidelines act, the out-of-state convictions must be classified as nonperson offenses. State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014).

28. Out-of-state crimes committed prior to enactment of the Kansas sentencing guidelines act must be classified as nonperson offenses when calculating a defendant's criminal history. State v. Ruiz, 51 Kan. App. 2d 212, 232, 343 P.3d 544 (2015).

29. At the time of sentencing, prior out-of-state crimes did not need to be identical to Kansas counterparts to be classified as person crimes; subsequent changes in the law do not make the sentence illegal. State v. Dubry, 309 Kan. 1229, 1231-33, 444 P.3d 328 (2019).

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