                           NOT DESIGNATED FOR PUBLICATION

                                              No. 121,727

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                   v.

                                           JOSEPH JOHN BAKER,
                                                Appellant.


                                    MEMORANDUM OPINION


        Appeal from Clark District Court; E. LEIGH HOOD, judge. Opinion filed August 21, 2020. Appeal
dismissed.


        James M. Latta, of Kansas Appellate Defender Office, for appellant.


        Clay A. Kuhns, special assistant county attorney, Allison D. Kuhns, county attorney, and Derek
Schmidt, attorney general, for appellee.


Before SCHROEDER, P.J., GREEN and BUSER, JJ.


        PER CURIAM: The sentence for a person felony conviction involving the use of a
firearm in Kansas is presumed imprisonment. Joseph John Baker timely appeals his
consecutive sentences of imprisonment for two counts of aggravated assault. He argues
the district court's finding under K.S.A. 2019 Supp. 21-6804(h) that he used a firearm in
the commission of his crimes violated his constitutional rights as described in Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Because Baker
received constitutionally permissible presumptive sentences, we have no jurisdiction over
his appeal and dismiss it.


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                                            FACTS


       In May 2019, Baker pled no contest to two counts of aggravated assault, each a
severity level 7 person felony with a presumptive sentencing range of 11, 12, or 13
months for each count based on his criminal history score of I. See K.S.A. 2019 Supp.
21-6804(a). At sentencing, Baker admitted under oath he fired a gun in the air twice
while committing his crimes. The district court then applied K.S.A. 2019 Supp. 21-
6804(h) to find Baker committed both crimes with a firearm. The use of a firearm
changed the disposition of his crimes to presumptive imprisonment. The district court
sentenced Baker to consecutive 11-month prison sentences totaling 22 months.


                                          ANALYSIS


K.S.A. 2019 Supp. 21-6804(h) does not require a jury determination.


       Baker argues the fact he committed his crimes with a firearm must be proven to a
jury beyond a reasonable doubt before the fact can be used to impose a prison term under
K.S.A. 2019 Supp. 21-6804(h) rather than probation. He claims because the district
judge—rather than a jury—made the factual finding based on his admission at
sentencing, his constitutional rights as described in Apprendi were violated and his
sentence must be vacated.


       Both parties agree Baker received a presumptive sentence. See K.S.A. 2019 Supp.
21-6804(h). Under K.S.A. 2019 Supp. 21-6820(c)(1), however, "the appellate court shall
not review . . . [a]ny sentence that is within the presumptive sentence for the crime." This
restriction is significant because Kansas appellate courts have not recognized a
constitutional right to an appeal; the right to appeal in Kansas is limited by statute. State
v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016). But Baker argues we can still review



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the narrow issue of whether the statute which triggered his presumptive prison
sentence—K.S.A. 2019 Supp. 21-6804(h)—is unconstitutional.


       Our Supreme Court has considered constitutional attacks on direct appeal even
where the defendant received a presumptive sentence. In State v. Johnson, 286 Kan. 824,
841-42, 190 P.3d 207 (2008), our Supreme Court addressed the merits of whether the
district court's discretion to impose a sentence of the upper grid box term without
requiring additional fact-finding by a jury violated Apprendi before it ultimately held the
defendant's constitutionally permissible sentence could not be appealed under K.S.A. 21-
4721(c)(1) (now K.S.A. 2019 Supp. 21-6820[c][1]). But in State v. Huerta, 291 Kan. 831,
247 P.3d 1043 (2011), the court distinguished the reviewability of Johnson-type
constitutional challenges to a sentencing statute itself from challenges to a statute as it
was applied to the defendant. Huerta recognized that while courts such as Johnson
reached the merits of the constitutional question, as-applied constitutional challenges to a
presumptive sentence are not reviewable. Huerta, 291 Kan. at 839-40; see State v.
Hinnenkamp, 57 Kan. App. 2d 1, 4, 446 P.3d 1103 (2019) (explaining difference between
facial and as-applied constitutional challenges), petition for rev. filed August 2, 2019.


       Here, Baker argues K.S.A. 2019 Supp. 21-6804(h) is both unconstitutional on its
face and as it was applied to him. But Baker concedes Huerta prevents us from reviewing
his as-applied challenge to K.S.A. 2019 Supp. 21-6804(h) on appeal. Although he claims
this aspect of Huerta was wrongly decided, our Supreme Court has not overruled its
decision, nor has it indicated its intent to do so. Thus, we are duty-bound to follow
Huerta's precedent, and we will not address Baker's as-applied challenge to the statute on
appeal. See State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). However,
under Johnson, we may first consider Baker's facial challenge to K.S.A. 2019 Supp. 21-
6804(h) before determining if we have jurisdiction to review his sentences. See 286 Kan.
at 842; State v. Billoups, No. 120,040, 2020 WL 1969356, at *18 (Kan. App.)



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(unpublished opinion) (finding appellate court may address merits of facial constitutional
challenge to sentence before ruling on jurisdiction), petition for rev. filed May 20, 2020.


       Baker did not raise a facial challenge to K.S.A. 2019 Supp. 21-6804(h) before the
district court. Generally, we do not address constitutional issues raised for the first time
on appeal. But one exception to this rule is when consideration of the argument is
necessary to prevent the denial of fundamental rights. State v. Hirsh, 310 Kan. 321, 338,
446 P.3d 472 (2019). Baker correctly argues that his newly raised Apprendi argument fits
squarely within this exception because Apprendi protects the fundamental right to a jury
trial. See Apprendi, 530 U.S. at 476-77 (guarantee of right to jury trial); State v. Unrein,
47 Kan. App. 2d 366, 369, 274 P.3d 691 (2012) (considering Apprendi issue for first time
on appeal to prevent denial of fundamental rights). Thus, we will consider his argument
preserved.


       In order to resolve Baker's argument, we must interpret the Kansas Sentencing
Guidelines Act (KSGA), K.S.A. 2019 Supp. 21-6801 et seq., and the constitutionality of
its provisions, both of which are questions of law subject to unlimited review. See
Johnson, 286 Kan. at 842.


       K.S.A. 2019 Supp. 21-6804(h) provides: "When a firearm is used to commit any
person felony, the offender's sentence shall be presumed imprisonment. The court may
impose an optional nonprison sentence as provided in subsection (q)." Baker argues the
statute violates his constitutional rights as described in Apprendi because it does not
require a jury to find that a defendant committed a person felony with a firearm before
the fact can be used to impose a prison term rather than probation. Apprendi held: "Other
than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury and proved beyond a
reasonable doubt." (Emphasis added). 530 U.S. at 490. But Baker's argument has merit
only if a change in disposition from presumptive probation to presumptive imprisonment


                                              4
increases the penalty for a person felony "beyond the prescribed statutory maximum,"
contrary to Apprendi. Our Supreme Court addressed this same argument in State v.
Beasley, 274 Kan. 718, 56 P.3d 803 (2002), contrary to Baker's current position.


       Beasley is factually analogous to this case. Like Baker, Beasley was subject to
presumptive probation because he was convicted of two severity level 7 person felonies
and had a criminal history score of I. The district court found Beasley used a firearm in
the commission of his crimes, which triggered a presumptive prison sentence under
K.S.A. 2001 Supp. 21-4704a(h) (now K.S.A. 2019 Supp. 21-6804[h]). As a result, the
district court imposed two concurrent 12-month prison sentences. Beasley appealed to
this court, and our Supreme Court transferred the appeal on its own motion under K.S.A.
20-3018(c).


       On appeal, Beasley argued a jury should have found he committed his crimes with
a firearm before the district court could use the fact to impose a prison sentence. He
claimed his constitutional rights as described in Apprendi were violated as a result. The
Beasley court relied on State v. Carr, 274 Kan. 442, 53 P.3d 843 (2002), where the court
"considered whether Apprendi applies to upward durational departures under the KSGA.
The majority reasoned that '[p]robation and parole are dispositions alternate to the
serving of a sentence, and neither probation nor parole increase or decrease the sentence
required to be imposed by statute.' [Carr], 274 Kan. 442, Syl. ¶ 3." Beasley, 274 Kan. at
723. Carr held that because a dispositional departure under K.S.A. 2001 Supp. 21-4716
neither increases nor decreases the sentence imposed by statute, Apprendi does not apply.
274 Kan. at 452. The Beasley court also relied on State v. Garcia, 274 Kan. 708, 711, 56
P.3d 797 (2002), where the court extended Carr's reasoning to a statutory provision
which triggered a presumptive prison sentence upon a finding the defendant's crime was
gang related. Beasley, 274 Kan. at 723.




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       Following the reasoning of Carr and Garcia, the Beasley court interpreted K.S.A.
2001 Supp. 21-4704a(h) and held a judge-made finding the defendant used a firearm in
the commission of a person felony does not implicate Apprendi. Beasley, 274 Kan. at
722-23.


       Baker fails to reference Beasley in his appellate brief, but he does rely on several
out-of-state cases, as well as the United States Supreme Court's decision in Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), to support his
position that Carr was wrongly decided. However, "'our Supreme Court is the final
authority on Kansas law for all state and federal courts.'" Community First Nat'l Bank v.
Nichols, 56 Kan. App. 2d 1057, 1066, 443 P.3d 322 (2019). Beasley and Carr are still
good law, and we are duty bound to follow their precedent. See Rodriguez, 305 Kan. at
1144. In Kansas, a change in disposition from presumptive probation to imprisonment
does not increase a defendant's punishment, so any facial challenge to the
constitutionality of K.S.A. 2019 Supp. 21-6804(h) under Apprendi fails.


       Baker received constitutionally permissible presumptive sentences of
imprisonment under the KSGA, and we do not have jurisdiction over his appeal. See
K.S.A. 2019 Supp. 21-6820(c)(1).


       Appeal dismissed.




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