State v. Carr

McKay, 271 Kan. 725, 26 P.3d 58 (2001), and State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). However, I dissent from the majority’s conclusion that Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), does not apply to upward dispositional departures under K.S.A. 2001 Supp. 21-4716.

After this case was docketed in the Court of Appeals, we held in State v. Gould, 271 Kan. 394, 413, 23 P.3d 801 (2001): “The Kansas scheme for imposing upward departure sentences, embodied in K.S.A. 2000 Supp. 21-4716, is unconstitutional on its face.”…