Volume 273 — Kansas Reports

SYLLABUS BY THE COURT 1. CRIMINAL LAW — Automobile Search — Admissibility of Evidence Seized in Search — Waiver of Defendant's Right to Counsel. In a criminal case resulting in defendant's bench trial conviction of one count of possession of methamphetamine and one count of possession of marijuana, with a controlling sentence of 150 months, the record is examined and it is held: (1) the fruits of the search of defendant's car were properly admitted, and (2) the district court did not err in allowing defendant to waive his right to counsel. 2. SAME — Sentencing — Criminal History Score — Jury Determination of Criminal History Score Not Required. <italic>Apprendi v. New</italic> <italic>Jersey</italic>, <cross_reference>530 U.S. 466</cross_reference>, <cross_reference>147 L.Ed.2d 435</cross_reference>, <cross_reference>120 S.Ct. 2348</cross_reference>(2000), does not apply where the defendant's prior convictions were used to increase the severity level of the current crime and thus the sentence. 3. SAME — Sentencing — Criminal History Score — Prior Convictions Properly Used to Increase Crime Severity Level under Facts of Case. Under the facts of this case and based on evidence of two prior convictions, the district court did not err in finding that defendant's otherwise severity level 4 crimes became severity level 1 crimes under K.S.A. 2001 Supp. <cross_reference>65-4160</cross_reference>(c). Combined with defendant's Kansas Sentencing Guidelines Act criminal history score of "H," defendant properly received a presumptive sentence of 150 months.

SYLLABUS BY THE COURT 1. CRIMINAL LAW — Voir Dire — State's Peremptory Strike Not Used for Discriminatory Purpose — Evidence Sufficient to Support Defendant's Convictions. In a criminal case resulting in a conviction of forgery, K.S.A. 2001 Supp. <cross_reference>21-3710</cross_reference>(a)(2), committed while defendant was on postrelease supervision, the record is examined and it is held: (1) The district court did not err under <italic>Batson v. Kentucky</italic>, <cross_reference>476 U.S. 79</cross_reference>, <cross_reference>90 L.Ed.2d 69</cross_reference>, <cross_reference>106 S.Ct. 1712</cross_reference> (1986), in finding that the State did not use a peremptory strike for a discriminatory purpose; and (2) the evidence was sufficient to support defendant's conviction. 2. APPEAL AND ERROR — Constitutional Grounds Asserted for First Time on Appeal — Not Exception to General Rule Disallowing Appellate Review Applied under Facts of Case. Generally, when constitutional grounds are asserted for the first time on appeal, they are not properly before this court for review. Under the facts of this case, the recognized exceptions to the general rule are applied to reach the defendant's <italic>Apprendi v. New Jersey</italic>, <cross_reference>530 U.S. 466</cross_reference>, <cross_reference>147 L.Ed.2d 435</cross_reference>, <cross_reference>120 S.Ct. 2348</cross_reference> (2000), constitutional sentencing claim. 3. CRIMINAL LAW — Sentencing — Presumptive Sentence Not Subject to Requirement for Jury Determination of Sentencing Factors — No Apprendi Violation. A "departure" is a sentence which is inconsistent with the presumptive sentence. K.S.A. <cross_reference>21-4703</cross_reference>(f). Under the facts, because defendant's prison sentence is not considered a departure, it is a presumptive sentence. As such, it does not exceed the statutory maximum punishment for his crime, and <italic>Apprendi</italic> does not apply.