State v. Weber (Updated July 8, 2013)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,658

STATE OF KANSAS,
Appellee,

v.

ROBERT WEBER,
Appellant.


SYLLABUS BY THE COURT

1.
Multiplicity is the charging of a single offense in several counts of a complaint or
information. Multiplicitous convictions violate a defendant's rights under both the Double
Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of
the Kansas Constitution Bill of Rights because they constitute multiple punishments for a
single offense.

2.
In determining whether multiple convictions have subjected a defendant to double
jeopardy, we first determine whether the convictions arose from the same or unitary
conduct, and, if so, we next consider whether the conduct, by statutory definition,
constitutes one offense or two. If both components are met—unitary conduct statutorily
defined as one offense—double jeopardy is violated when the defendant is convicted of
more than one offense for such conduct.

3.
Appellate courts utilize four factors to aid in the consideration of whether a
defendant's convictions arose from the same or unitary conduct: (1) whether the acts
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occurred at or near the same time, (2) whether the acts occurred at the same location, (3)
whether a causal relationship existed between the acts, in particular whether an
intervening event separated the acts, and (4) whether a fresh impulse motivated some of
the conduct.

4.
Under K.S.A. 21-3107(2), the Kansas Legislature has declared that a criminal
defendant may be convicted of either the crime charged or a lesser crime, but not both,
and an attempt to commit the crime charged is a lesser included crime. Accordingly, the
prohibition against convicting a defendant for both the crime charged and an attempt to
commit the crime charged is an explicit statement by the legislature that the unitary
conduct forming the basis for both charges is to be defined as one offense.

5.
K.S.A. 2009 Supp. 21-4642(a) mandates that an aggravated habitual sex offender
shall be sentenced to imprisonment for life without the possibility of parole. Pursuant to
K.S.A. 2009 Supp. 21-4642(c)(1), an aggravated habitual sex offender is a person, who,
on and after July 1, 2006: (A) has been convicted in this state of a sexually violent crime,
as described in paragraphs (3)(A) through (3)(J) or (3)(L); and (B) prior to the conviction
of the felony under subparagraph (A), has been convicted on at least two prior conviction
events of any sexually violent crime.

6.
A challenge to a sentence as being illegal may be considered for the first time on
appeal.

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7.
Generally, the appellate courts must decide questions of law and do not permit the
parties to stipulate to the legal conclusions to be drawn from admitted facts. Criminal
defendants cannot agree to be punished by an illegal sentence.

8.
When the record on review does not support a presumption that the district court
found all the facts necessary to support the judgment, an appellate court will remand the
case for additional findings and conclusions.

9.
The actus reus of the sexual intercourse reference in the rape statute, K.S.A. 21-
3502, is penetration. The language in the statutory definition of sexual intercourse at
K.S.A. 21-3501(1), listing alternative objects that can be used to penetrate the female sex
organ to effect sexual intercourse, merely describes the factual circumstances by which
the material element of penetration may be proved, rather than establishing alternative
means of committing rape.

10.
The sentence enhancement provisions for aggravated habitual sex offenders in
K.S.A. 2009 Supp. 21-4642 are constitutional.

Appeal from Sedgwick District Court; ANTHONY J. POWELL, judge. Opinion filed July 5, 2013.
Affirmed in part, reversed in part, and remanded with directions.

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause and was on the briefs
for appellant.

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Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Robert Weber directly appeals his convictions and sentences for
rape and attempted rape. Weber was sentenced to two terms of life in prison without
parole as an aggravated habitual sex offender, pursuant to K.S.A. 2009 Supp. 21-4642.
On appeal, he claims that (1) his convictions for rape and attempted rape are
multiplicitous, in violation of the Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution and § 10 of the Kansas Constitution Bill of Rights; (2) a prior
Michigan conviction does not qualify as a "sexually violent crime" so as to support a
finding that he was an aggravated habitual sex offender; (3) there was insufficient
evidence to support all of the charged alternative means of committing rape; (4) the jury
instruction for the overt act element of attempted rape was broader than the charging
document; and (5) K.S.A. 2009 Supp. 21-4642 provides for an unconstitutional
enhancement of the statutory sentence based upon facts that have not been proved to a
jury beyond a reasonable doubt.

We agree that both convictions cannot stand and, accordingly, we reverse Weber's
conviction for attempted rape. The sentence on the remaining rape conviction is vacated,
and the case is remanded for the district court to determine whether the State has
established that Weber meets the statutory definition of an aggravated habitual sex
offender under K.S.A. 2009 Supp. 21-4642. The reversal of the attempted rape conviction
as multiplicitous renders moot Weber's challenge to the jury instruction on that count.
Finally, we reiterate that rape is not an alternative means crime and that the aggravated
habitual sex offender provisions of K.S.A. 2009 Supp. 21-4642 are constitutional.

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FACTUAL AND PROCEDURAL OVERVIEW

Weber became acquainted with M.E.W., an 80-year-old woman, through a church
prison ministry. In November 2009, M.E.W. brought Weber to her home to assemble
shelves in her basement. The two worked together in the basement until M.E.W. went
upstairs to change clothes.

While M.E.W. was changing clothes in her bathroom, Weber entered the room and
said something like "I have to do this." He then threw M.E.W. to the floor and proceeded
to remove her clothing, while she struggled and implored him not to rape her. Weber
positioned himself on top of M.E.W. and unsuccessfully attempted to penetrate her
vagina with his penis. After M.E.W. told him she had not had sex with anyone since her
husband died 12 years before, Weber forced his fingers inside her vagina before again
attempting penile penetration. Weber never accomplished penile penetration, ultimately
ejaculating on M.E.W.'s thigh.

After the assault, Weber left the house while M.E.W. called 911. The responding
law enforcement officer found Weber waiting outside M.E.W.'s house and took him into
custody. He was charged with one count of rape and one count of attempted rape. The
jury convicted Weber on both counts.

The presentence investigation report (PSI) reflected that Weber had two prior
convictions from the State of Michigan, one of which was for assault with intent to
commit criminal sexual conduct in the second degree (assault). The sentencing court
proceeded to sentence Weber as an aggravated habitual sex offender under K.S.A. 2009
Supp. 21-4642, based in part on the prior Michigan assault conviction being for a
"sexually violent crime." But the sentencing court did not make any findings in that
regard, apparently relying on the defense attorney's acquiescence in the application of the
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sentence enhancement provisions of K.S.A. 2009 Supp. 21-4642. The district court
sentenced Weber to two consecutive life sentences without possibility of parole. He
appeals his convictions and sentences.

MULTIPLICITY

Weber argues for the first time on appeal that his convictions for rape and
attempted rape are multiplicitous because they were based upon the same, or unitary,
conduct. Multiplicity is the charging of a single offense in several counts of a complaint
or information. State v. Thompson, 287 Kan. 238, 244, 200 P.3d 22 (2009). Multiplicitous
convictions violate a defendant's rights under the Double Jeopardy Clauses of both the
Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution
Bill of Rights because they constitute multiple punishments for a single offense.
Thompson, 287 Kan. at 244.

Although Weber did not raise this issue below, we have previously considered
multiplicity challenges for the first time on appeal to serve the ends of justice or prevent a
denial of fundamental rights. See State v. Colston, 290 Kan. 952, 971, 235 P.3d 1234
(2010); State v. Nguyen, 285 Kan. 418, 433, 172 P.3d 1165 (2007). In that vein, we will
address Weber's multiplicity issue.

Standard of Review

Appellate courts exercise unlimited review when determining whether convictions
are multiplicitous. State v. Holman, 295 Kan. 116, 147, 284 P.3d 251 (2012).

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Analysis

In State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), we set forth the
framework for determining whether multiple convictions subject a defendant to double
jeopardy. First, we ask whether the convictions arose from the same or unitary conduct. If
not, multiplicity is inapplicable; if so, we next consider whether the conduct, by statutory
definition, constitutes one offense or two. If both components are met—unitary conduct
statutorily defined as one offense—double jeopardy is violated when the defendant is
convicted of more than one offense. 281 Kan. at 496-97.

Weber argues that his convictions for rape and attempted rape arose from the same
conduct—his attempt to accomplish penile penetration of M.E.W. The underlying facts
upon which we must analyze the nature of Weber's conduct are not disputed by the
parties, i.e., the State does not argue a different factual scenario than the defense. The
dispute centers on how to characterize the undisputed facts.

Schoonover set forth four factors to aid in the consideration of whether a
defendant's convictions arose from unitary, i.e., the same conduct: (1) whether the acts
occurred at or near the same time, (2) whether the acts occurred at the same location, (3)
whether a causal relationship existed between the acts, in particular whether an
intervening event separated the acts, and (4) whether a fresh impulse motivated some of
the conduct. Schoonover, 281 Kan. at 497. The State concedes that the first two
Schoonover factors were met in the present case. Namely, that the attempted penile
penetration occurred just before and right after the digital penetration in the same location
(the victim's bathroom).

But the State argues that Weber's inability to accomplish penile penetration
constituted an intervening event that separated the attempted penile penetration from the
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digital penetration. The State asserts that this intervening event created Weber's fresh
impulse to accomplish digital penetration. The State relies upon State v. Sellers, 292 Kan.
346, 253 P.3d 20 (2011), to support its argument. The State's reliance on Sellers is
unavailing.

In Sellers, the defendant was convicted of two counts of aggravated indecent
liberties with a child. In determining whether Sellers' convictions arose from unitary
conduct, we acknowledged that consideration of the last two Schoonover factors was a
close call. However, we ultimately determined that Sellers' conduct was not unitary when
he touched the victim, left the room for 30 to 90 seconds to check on a barking dog,
returned to the room, and touched the victim a second time. 292 Kan. at 359-60. We held
that Sellers' act of leaving the room, for a few moments broke the chain of causality and
gave Sellers an opportunity to reconsider his felonious course of action. 292 Kan. at 360.

Here, no external event, such as a barking dog, disrupted Weber's attempt to rape
M.E.W. Instead, Weber embarked upon the singular act of raping M.E.W. and continued
in that endeavor until he ejaculated. The inference that Weber utilized the digital
penetration to assist him in accomplishing his ultimate goal of penile penetration is
corroborated by the fact that he attempted penile penetration both before and after the use
of his fingers. In that context, the State's argument that Weber's inability to accomplish
penile penetration constituted an intervening event is nonsensical. An intervening event,
by its very nature, contemplates an interruption of causation, that is, incidents are
considered factually separate when there is "an intervening event, as opposed to a causal
relationship between the acts." (Emphasis added.) State v. Foster, 290 Kan. 696, 713,
233 P.3d 265 (2010). Here, there was a direct causal relationship between the two acts,
rather than an interruption of one act. Weber's inability to accomplish penile penetration
caused him to resort to digital penetration before returning to his attempted penile
penetration.
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Further, the evidence does not support the existence of a fresh impulse to commit
a separate act of digital rape. Rather, the evidence indicates that Weber was not deterred
from his original intent to accomplish rape by penile penetration, despite his failure to do
so. We therefore find that Weber's convictions for rape and attempted rape arose from the
same unitary course of conduct.

Because we find unitary conduct, Schoonover suggests that we move to the second
step of determining whether the conduct, by statutory definition, constitutes one offense
or two. See 281 Kan. at 497. We believe the answer in this case is to be found in the
statute that addresses multiple prosecutions for the same act, K.S.A. 21-3107, which
provides in relevant part:

"(1) When the same conduct of a defendant may establish the commission of
more than one crime under the laws of this state, the defendant may be prosecuted for
each of such crimes. Each of such crimes may be alleged as a separate count in a single
complaint, information or indictment.
"(2) Upon prosecution for a crime, the defendant may be convicted of either the
crime charged or a lesser included crime, but not both. A lesser included crime is:
. . . .
(c) an attempt to commit the crime charged." (Emphasis added.)

The prohibition against convicting a defendant for both the crime charged and an
attempt to commit the crime charged is an explicit statement by the legislature that the
unitary conduct forming the basis for both charges is to be defined as one offense. To
state the obvious, Weber's convictions for rape and attempted rape arose from unitary
conduct; pursuant to K.S.A. 21-3107(2)(c), the attempted rape is a lesser included offense
of rape; and pursuant to K.S.A. 21-3107(2), Weber cannot be convicted of both the rape
and the attempt to commit the rape. See also State v. Hernandez, 294 Kan. 200, 207, 273
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P.3d 774 (2012) ("K.S.A. 21-3107[2][c] prohibits conviction of both the crime charged
and an attempt to commit the crime charged.").

Consequently, Weber's conviction for attempted rape was constitutionally invalid
because it was multiplicitous. The attempted rape conviction must be reversed, and the
corresponding sentence is vacated.

AGGRAVATED HABITUAL SEX OFFENDER

The district court imposed a sentence of life imprisonment without parole pursuant
to the sentence enhancement provisions of K.S.A. 2009 Supp. 21-4642(a) that mandate
the no-parole life sentence for persons who are designated as aggravated habitual sex
offenders. K.S.A. 2009 Supp. 21-4642(c)(1) defines an "aggravated habitual sex
offender" as

"a person, who, on and after July 1, 2006: (A) Has been convicted in this state of a
sexually violent crime, as described in paragraphs (3)(A) through (3)(J) or (3)(L); and (B)
prior to the conviction of the felony under subparagraph (A), has been convicted on at
least two prior conviction events of any sexually violent crime."

Under subparagraph (3)(A), rape is designated as a "sexually violent crime," so
that Weber's rape conviction in this case fulfills the requirement of subsection (A) of the
aggravated habitual sex offender definition. The question presented here is whether
Weber had the requisite two prior conviction events of any sexually violent crime as
required by subsection (B) of K.S.A. 2009 Supp. 21-4642(c)(1). More specifically,
Weber challenges whether the Michigan assault is a "sexually violent crime" that would
qualify as one of those required prior conviction events.

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Standard of Review

A determination of whether Weber may be sentenced as an aggravated habitual
sex offender is a mixed question of fact and law. When reviewing a mixed question of
fact and law, an appellate court reviews the district court's factual findings for substantial
competent evidence and reviews the district court's legal conclusions de novo. State v.
Fisher, 283 Kan. 272, 286, 154 P.3d 455 (2007). Here, however, the district court made
no factual findings, impeding our review.

Analysis

We begin by noting that the State does not directly address the question of whether
the Michigan assault qualifies as a sexually violent crime for K.S.A. 2009 Supp. 21-
4642(c)(1)(B) purposes. Its brief points out that, under K.S.A. 2009 Supp. 21-
4642(c)(3)(K), the definition of sexually violent crime includes "any federal or other state
conviction for a felony offense that under the laws of this state would be a sexually
violent crime as defined in this section." But the State does not explain why the Michigan
assault would be a sexually violent crime in this state, and none of the Kansas crimes
specifically designated as sexually violent crimes in K.S.A. 2009 Supp. 21-4642(c)(3)(A)
through (J) appear to be obviously comparable to the Michigan crime of assault with
intent to commit criminal sexual conduct in the second degree.

Further, the State alludes to the catch-all provision in K.S.A. 2009 Supp. 21-
4642(c)(3)(M) under which the definition of sexually violent crime encompasses "any act
which at the time of sentencing for the offense has been determined beyond a reasonable
doubt to have been sexually motivated." That provision further defines "sexually
motivated" as meaning that "one of the purposes for which the defendant committed the
crime was for the purpose of the defendant's sexual gratification." K.S.A. 2009 Supp. 21-
4642(c)(3)(M). But the Michigan sentencing order on the assault conviction that the State
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admitted at Weber's sentencing in this case does not reflect that the Michigan sentencing
court made any finding about sexual motivation or intended sexual gratification when
imposing sentence on that assault conviction.

Instead, the State takes the tack that we should refuse to consider Weber's
sentencing challenge because it is procedurally barred. The State argues that Weber's trial
counsel stipulated that Weber should be sentenced as an aggravated habitual sex offender
and further suggests that Weber waived the issue by failing to raise it before the district
court. We disagree on both grounds.

With respect to the State's waiver argument, K.S.A. 22-3504(1) specifically
authorizes a court to correct an illegal sentence at any time. We reiterated recently that
this means that "an illegal sentence issue may be considered for the first time on appeal."
State v. Floyd, 296 Kan. 685, 690, 294 P.3d 318 (2013). Moreover, if a prior conviction is
erroneously included in the calculation of an enhanced sentence under the Habitual
Criminal Act, the resulting sentence is illegal as not conforming to the statutorily
authorized term of punishment. See State v. Walker, 277 Kan. 849, Syl. ¶ 1, 89 P.3d 920
(2004). Therefore, if the district court erroneously included the prior Michigan assault
conviction in calculating Weber's enhanced sentence under the aggravated habitual sex
offender provision, the resulting sentence is illegal and is subject to challenge here and
now.

Likewise, we view the State's reliance on trial counsel's stipulation to be
misguided. Initially, counsel had objected to the inclusion of the two Michigan
convictions in Weber's criminal history score. After the State provided the defense with
certified copies of the Michigan journal entries, defense counsel advised the sentencing
judge that the defense was withdrawing its objection to criminal history. Accordingly, we
agree with the State that Weber should be bound by his counsel's stipulation of fact in the
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district court with respect to his criminal history, i.e., the factual stipulation that Weber
was convicted in Michigan of the crime of assault with intent to commit criminal sexual
contact in the second degree. But that factual stipulation does not answer the question
before us, which is: what is the legal effect of that prior conviction on the imposition of
an enhanced sentence. If the Michigan assault does not fit within the Kansas definition of
a sexually violent crime, then it could not be used as one of the prior conviction events
required by K.S.A. 2009 Supp. 21-4642(c)(1)(B), and Weber would not be an
"aggravated habitual sex offender" subject to the enhanced sentence of K.S.A. 2009
Supp. 21-4642(a).

Inexplicably, defense trial counsel also conceded that the life without parole
sentence of K.S.A. 2009 Supp. 21-4642(a) was mandated for Weber, which would
suggest that defense counsel was stipulating to the legal effect of the admitted fact of the
Michigan assault conviction. But we do not permit parties to stipulate "'as to the legal
conclusions from admitted facts.'" Urban Renewal Agency v. Reed, 211 Kan. 705, 712,
508 P.2d 1227 (1973) (quoting 50 Am. Jur., Stipulations § 5). The legal question of
whether Weber's admitted criminal history was sufficient to meet the requirements of
K.S.A. 2009 Supp. 21-4642(c)(1)(B), so as to define him as an aggravated habitual sex
offender subject to enhanced sentencing, "'must rest upon the court, uninfluenced by
stipulations of the parties.'" Urban Renewal Agency, 211 Kan. at 712 (quoting 50 Am.
Jur., Stipulations § 5). Therefore, despite the concession of Weber's counsel, "we
nevertheless must address the accuracy of the purported legal basis of [Weber's]
concession." Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 400, 266 P.3d 516 (2011);
see also Ritchie Paving, Inc. v. City of Deerfield, 275 Kan. 631, 641, 67 P.3d 843 (2003)
("Stipulations as to what the law is are not effective and not controlling on this court.").

Perhaps more to the point here, "Kansas law is clear that a defendant can't agree to
an illegal sentence. State v. Jones, 293 Kan. 757, 757-78, 268 P.3d 491 (2012); State v.
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Duncan, 291 Kan. 467, 470-71, 243 P.3d 338 (2010)." State v. Burton, No. 105,656, 2012
WL 2148179, at *1 (Kan. App. 2012) (unpublished opinion). Accordingly, the State's
alleged procedural bar emanating from a defense stipulation that K.S.A. 2009 Supp. 21-
4642(a) applied in this case is simply unavailing.

Unfortunately, at sentencing the district court did not independently determine
whether Weber fit within the statutory definition of an aggravated habitual sex offender.
Rather, the sentencing court relied upon the prosecutor's declaration that Weber had "the
two requisite prior convictions," as evidenced by the journal entries of the Michigan
convictions. As the State points out, defense counsel did not refute the prosecutor's
declaration. But as we suggested above, that acquiescence did not absolve the court of its
duty to decide the questions of law necessary to impose sentence. One of those questions
of law was whether Weber's prior Michigan assault conviction constitutes a sexually
violent crime for purposes of K.S.A. 2009 Supp. 21-4642(c)(1)(B).

The record before us does not appear to support a finding that the Michigan assault
conviction meets the definition in Kansas for a sexually violent crime. But the State
contends that the defense's failure to challenge the assault conviction in the district court
resulted in an insufficient record for a meaningful appellate review. The State suggests
that it would have provided additional information relating to Weber's Michigan
conviction if it had been necessary to establish that the crime was a sexually violent
crime. Although we view that claim with skepticism, we acknowledge that factual
determinations could impact the legal question presented and we should not be making
factual findings in the first instance.

"We review the factual determinations of the district court to determine whether the facts
as found by the district court are supported by substantial competent evidence. [Citation
omitted.] We do not reweigh evidence or reassess credibility. [Citation omitted.] We then
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determine de novo whether those facts as a matter of law support the legal conclusion of
the district court. [Citation omitted.] When the record on review does not support a
presumption that the district court found all the facts necessary to support the judgment,
this court will remand the case for additional findings and conclusions. [Citation
omitted.]" State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009).

Accordingly, we vacate Weber's rape sentence and remand the rape conviction to
the district court to make all factual and legal determinations necessary to decide whether
Weber is an aggravated habitual sex offender pursuant to the enhanced sentencing
provisions of K.S.A. 2009 Supp. 21-4642. The district court must then proceed to
resentence Weber accordingly.

ALTERNATIVE MEANS

Weber separately challenges his rape conviction, claiming that the evidence was
insufficient to support all of the alternative means of committing rape upon which the
district court instructed the jury, i.e., "penetration of [M.E.W.'s] female sex organ by [1] a
finger, [2] the male sex organ or [3] any object." Weber argues that because the State
failed to present any evidence that Weber penetrated M.E.W. with either his penis or "any
object," it failed to present sufficient evidence on each of the instructed alternative
means. See State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010) (there must be
sufficient evidence to support each means upon which jury is instructed).

Standard of Review

This issue will be determined by considering whether the statutory crime of rape
creates alternative means of committing the offense. That determination involves
questions of law reviewable de novo on appeal. See State v. Britt, 295 Kan. 1018, Syl.
¶ 1, 287 P.3d 905 (2012).
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Analysis

The crime of rape is set forth at K.S.A. 21-3502 and provides, in relevant part, that
rape is "[s]exual intercourse with a person who does not consent to the sexual
intercourse." K.S.A. 21-3502(a)(1). In conjunction, "sexual intercourse" is defined in
K.S.A. 21-3501(1), as meaning "any penetration of the female sex organ by a finger, the
male sex organ or any object." Weber contends that the legislature provided alternative
means of engaging in sexual intercourse, depending on the object or body part used to
make penetration, and, in turn, there are the same alternative means of committing rape.

In Britt, we addressed and rejected the same argument, holding:

"The actus reus of the sexual intercourse reference in the rape statute is
'penetration.' The alternative methods of penetrating the female sex organ set forth in the
statute—by a finger, the male sex organ, . . . or an object—merely describe 'the factual
circumstances in which a material element may be proven,' i.e., the different ways in
which penetration may occur. [Citation omitted.] Thus, these are not alternative means,
but options within a means and the inclusion of this language in the jury instructions does
not make this an alternative means case triggering concerns of jury unanimity." 295 Kan.
at 1027.

Weber does not persuade us to revisit our resolution of the issue in Britt. Rape is
not an alternative means crime. Therefore, evidence that Weber penetrated M.E.W. with
his fingers was sufficient to support the crime of rape as instructed; proof of penetration
with another object or body part was unnecessary. The rape conviction is upheld.

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OVERBROAD JURY INSTRUCTION

Weber also complains that the jury instruction on the attempted rape charge was
broader than the charging document in describing the overt act he committed. See State v.
Trautloff, 289 Kan. 793, 802, 217 P.3d 15 (2009) (jury instruction stating "the elements
of a crime that is broader than the complaint charging the crime is erroneous"). But we
have reversed the attempted rape conviction as multiplicitous, thus rendering this issue
moot.

CONSTITUTIONALITY OF K.S.A. 2009 SUPP. 21-4642

Finally, Weber challenges his enhanced sentence by claiming that K.S.A. 2009
Supp. 21-4642 is unconstitutional because it increases a sentence based on facts not
proven to a jury. This court has repeatedly rejected arguments of this nature. Trautloff,
289 Kan. at 803-04; State v. Conley, 287 Kan. 696, 700-01, 197 P.3d 837 (2008); State v.
Warledo, 286 Kan. 927, 954, 190 P.3d 937 (2008); State v. Johnson, 284 Kan. 18, 23,
159 P.3d 161 (2007).

Weber asserts no new grounds for us to reconsider our firmly established law in
this area, and we therefore find no constitutional violation.

Affirmed in part, reversed in part, and remanded with directions to the district
court.