Kansas Court of Appeals - 102004 â State v. Lee

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Here, the jury returned its verdict on April 3, 2008. Under the statute, Lee had 10 days to file a motion for a new trial. Lee did not file his motion until May 7, 2008, clearly outside the 10-day period. There is nothing in the record to indicate Lee filed an application for extension of time to file the motion. Thus, the district court lacked the authority to consider Lee's untimely motion. Because the district court lacked authority to enter an order, this court does not have jurisdiction over the subject matter. See McCoin, 278 Kan. at 468. (5) Calculation of Criminal History Lee challenges the district court's use of his prior adult convictions to calculate his criminal history score without requiring those convictions to be proven to a jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Lee concedes this issue has been decided against him but includes it to preserve it for federal review. The Kansas Supreme Court rejected Lee's argument in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). We are duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004). There is no indication our Supreme Court is departing from its ruling in Ivory. See State v. Fewell, 286 Kan. 370, 394-96, 184 P.3d 903 (2008) (affirming Ivory). Accordingly, Lee's argument fails. Lee's Claim of Cumulative Error Finally, Lee claims he is entitled to reversal of his convictions based on the cumulative effect of trial errors. "Cumulative error, considered collectively, may be so great as to require reversal of a defendant's conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be 26
found under the cumulative error doctrine if the evidence against the defendant is overwhelming. [Citation omitted.] Moreover, this doctrine does not apply if no error or only one error supports reversal. [Citation omitted.]" State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009). Because the record fails to support any of the errors raised on appeal by Lee, he is not entitled to reversal under a theory of cumulative error. Affirmed. 27
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Kansas Court of Appeals - 102004 â State v. Lee

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Kansas Court of Appeals - 102004 â State v. Lee