The opinion of the court was delivered by
This сase is before us on a petition for review from the Court of Appeals’ finding that
Apprendi v. New Jersey,
The Court of Appeals reasoned that David L. Ivory received a sentence within the presumptive range, the sentence was not subject to challenge on appeal, and Apprendi did not apply. See K.S.A. 21-4721(c)(1). We agree.
We granted review to resolve this first impression issue. K.S.A. 20-3018(b).
*45 FACTS
Ivory was charged with the theft of several items. He pled guilty to one count of theft. K.S.A. 21-3701(a)(l). At sentencing, the district court looked to Ivory’s prior convictions and еstablished a criminal history score of “C” (a letter designation along the horizontal axis of the KSGA grid; the vertical аxis indicates the severity level of the crime). The sentencing judge then imposed an aggravated sentencе of 13 months’ incarceration and ordered the sentence to be served consecutive to a case for which Ivory was on parole at the time of the theft.
The district court conducted an evidentiary hearing to determine the value of the stolen items for purposes of restitution. The Court of Appeals found therе was no evidence in the record to support the finding as to the value of an item, set aside the restitution order and remanded for further consideration. Ivory does not seek review of the restitution issue.
DISCUSSION
Ivory argues that under Apprendi, his constitutional rights were violated when the district court increased his sentence based on his prior criminal history. See K.S.A. 2001 Supp. 21-4704; K.S.A. 2001 Supp. 21-4720(b)(3). As the Court of Appeals said: “Simply put, Ivory argues application of the horizontal axis of the sentеncing grid is unconstitutional under Apprendi.”
Ivory reasons that Apprendi prevents the use of prior convictions to increase a sentence beyоnd the statutory maximum unless proven to a jury beyond a reasonable doubt. Ivory’s conception of a statutory maximum sentence is an interesting feature of his argument. According to Ivory, the statutory maximum sentence is derived frоm consideration of the severity level of the crime and a horizontal axis criminal history score of “I" (no prior record). He contends that: (1) the sentencing court increased his sentence by using prior convictions, (2) thе convictions were neither included in his complaint nor presented to a jury and proven beyond a reasonable doubt, and (3) prior criminal history should not be included in calculating his sentence.
*46
Ivory’s attack on the constitutionality of the KSGA sentencing grid involves a question of law, over which we have unlimited review. See
State v. Crow,
The KSGA builds criminal histоiy into the calculation of a presumptive sentence, rather than using criminal history as an enhancemеnt. The determination of a felony sentence is based on two factors: the current crime of convictiоn and the offender’s prior criminal history. The sentence contained in the grid box at the juncture of the severity level of the crime of conviction and the offender’s criminal histoiy category is the presumed sentence. K.S.A. 2001 Supp. 21-4704. See
State v. Gould,
In Apprendi,
the United States Supreme Court said:
“Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory mаximum must be submitted to a jury and proved beyond a reasonable doubt.” (Emphasis added.)
Ivory recognizes that Apprendi did not overrule Almendarez-Torres. However, he reasons that the Apprendi majority raised serious doubts about the constitutionality of Almendarez-Torres. Ivory’s argument is not a novel one.
The interplay between
Almendarez-Torres
and
Apprendi
was considered in
U.S. v. Pacheco-Zepeda,
“It is true that in Apprendi, the Court expressed reservations about Almendarez-Torres. [Citation omitted.] However, the Court reasoned thаt any due process or Sixth Amendment concerns — arising out of the judicial determination of a ‘fact’ that increased punishment beyond the statutory maximum— were miti *47 gated in Almendarez-Torres by ‘[b]oth the certainty that procedural safeguards attached to any “fact” of prior conviction, and the reality that [the defendant] did not challenge the accurаcy of that “fact” in his case.’ [Citation omitted.] Thus, the Court in Apprendi chose not to overrule Almendarez-Torres, and unmistakably carved out an exception for priоr convictions’ that specifically preserved the holding oí Almendarez-Torres. [Citation omitted.]”234 F.3d at 414 .
In addition, the Ninth Circuit rejected Pacheco-Zеpeda’s argument that Almendarez-Torres was limited to its facts:
“Although Apprendi does refer to the fact that the defendant in AlmendarezTorres did not challenge the accuracy of his prior convictions, nowhere does Apprendi limit Almendarez-Torres to cases where a defendant admits рrior aggravated felony convictions on the record. [Citation omitted.] To the contrary, Apprendi held that all prior conviсtions — not just those admitted on the record— were exempt from Apprendi’s general rule and, under Almendarez-Torres, may continue to be treated as sentencing factors.”234 F.3d at 414-15 .
Counsel has nоt cited a case nor has our research discovered one extending Apprendi to hold that increasing a sentеnce based on the fact of prior convictions is unconstitutional. See State v. Wheeler, 145 Wash. 2d 116, 123, 34 P.3d 799 (2001).
The Tenth Circuit Court of Appeаls has also rejected the notion that prior convictions should be treated as essential elements to be presented in an indictment and decided by a jury. U. S. v. Wilson, 244 F.3d 1208, 1216-17 (10th Cir. 2001).
A similar analysis is found in
People v. Thomas,
*48 Ivory’s sentence should stand. We affirm the Court of Appeals. The case is remanded with directions under the Court of Appeals’ ruling on the restitution issue.