State v. Brooks ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,852
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
COREY BROOKS,
Appellant.
MEMORANDUM OPINION
Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Opinion filed August 5, 2022.
Affirmed.
Submitted by the parties for summary disposition under K.S.A. 2021 Supp. 21-6820(g) and (h).
Before ARNOLD-BURGER, C.J., SCHROEDER and WARNER, JJ.
PER CURIAM: Corey Brooks appeals his sentence claiming the district court erred
in using his criminal history without presenting it to a jury and proving it beyond a
reasonable doubt. We granted Brooks' motion for summary disposition under Supreme
Court Rule 7.041A (2022 Kan. S. Ct. R. at 48). Based on the record, we find the district
court did not err when it relied on Brooks' criminal history at sentencing and affirm.
FACTUAL AND PROCEDURAL HISTORY
In August 2021, Brooks entered a no-contest plea to possession with intent to
distribute K2 and aggravated child endangerment for acts that occurred on April 7, 2021.
The district court informed Brooks that the maximum sentence for these offenses were 51
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and 17 months in prison, respectively. Before accepting Brooks' plea, the district court
explained the impact criminal history would have on sentencing and the process the court
would use to determine his sentence.
At sentencing, the district court found Brooks' criminal history score to be C, and
Brooks agreed with this calculation of his criminal history score. The district court
imposed the standard sentence for each offense: 40 months in prison for possession with
intent to distribute K2 and 6 months in prison for aggravated child endangerment.
Because Kansas law required that these sentences be served consecutively, the district
court ordered Brooks serve a 46-month controlling sentence.
ANALYSIS
On appeal, Brooks argues that the district court erred when it considered his
criminal history during sentencing without putting it to a jury and proving it beyond a
reasonable doubt. Brooks argues that this violated his constitutional rights under
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The
Kansas Supreme Court has consistently rejected this argument and held that criminal
history is a sentencing factor rather than an element of the crime. State v. Ivory, 273 Kan.
44, 46-48, 41 P.3d 781 (2002); see State v. Razzaq, 309 Kan. 544, 552, 439 P.3d 903(2019). Without some indication that the Kansas Supreme Court is departing from its
previous position, this court must follow Supreme Court precedent. State v. Rodriguez,
305 Kan. 1139, 1144, 390 P.3d 903 (2017).
The district court did not err when it considered Brooks' criminal history at
sentencing. The district court even diligently informed Brooks of the impact his criminal
history would have and how the sentence would be calculated before accepting his plea.
We, therefore, affirm the district court's sentence.
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Affirmed.
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