Opinion
116,641 116,642 116,643
12-20-2017
STATE of Kansas, Appellee, v. Joshua EWING, Appellant.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Malone, P.J., Leben, J., and Kevin P. Moriarty, District Judge, assigned.
MEMORANDUM OPINION
Per Curiam
Joshua Ewing appeals his sentences in three separate cases, claiming that the district court erred in calculating his criminal history score which resulted in an illegal sentence in each case. Specifically, Ewing argues that the district court erred by classifying his two Arkansas misdemeanor convictions as person misdemeanors for criminal history purposes. We agree with Ewing's claim in part. For reasons more fully explained herein, we vacate Ewing's sentences and remand for the district court to determine whether his prior Arkansas battery/domestic battering conviction may be scored as a person offense for criminal history purposes.
FACTS
The State charged Ewing with crimes in three separate cases. On August 12, 2015, the State charged Ewing in 15CR2323 with theft after a prior conviction. On January 12, 2016, the State charged Ewing in 16CR117 with one count of aggravated burglary and one count of theft after a prior conviction. The aggravated burglary charge was later amended to attempted aggravated burglary. Finally, on April 18, 2016, the State charged Ewing in 16CR1054 with theft after a prior conviction.
Ewing pled guilty to all the charges in each case. Specifically, on October 14, 2015, Ewing pled guilty to theft after a prior conviction in 15CR2323. Then, on January 27, 2016, Ewing pled guilty to attempted aggravated burglary and theft after a prior conviction in 16CR117. Finally, on June 13, 2016, Ewing pled guilty to theft after a prior conviction in 16CR1054.
The district court ordered a presentence investigation (PSI) report to be completed in each case. The PSI report in each case included three adult person misdemeanor convictions that were aggregated to form one person felony conviction for criminal history purposes: a Kansas battery of a law enforcement officer conviction; an Arkansas battery/domestic battering conviction; and an Arkansas second-degree false imprisonment conviction. In addition to that person felony conviction, which was scored in all three cases, Ewing's attempted aggravated burglary conviction in 16CR117 was scored as a person felony in the other two cases. Thus, the final PSI report in 15CR2323 and 16CR1054 indicated that Ewing had a criminal history score of B. The final PSI report in 16CR117 indicated that Ewing had a criminal history score of C.
At the sentencing hearing on August 24, 2016, Ewing did not object to any of the findings in the PSI reports. In 15CR2323 and 16CR1054, the district court sentenced Ewing to 15 months' imprisonment in each case, and in 16CR117, the district court imposed a controlling sentence of 36 months' imprisonment. The district court ordered the sentences in each case to run concurrently. Ewing timely filed a notice of appeal in each case, and his cases have been consolidated on appeal.
ANALYSIS
On appeal, Ewing claims the district court erred in calculating his criminal history scores, resulting in an illegal sentence in each of his three cases. Ewing focuses on his two Arkansas person misdemeanor convictions that were aggregated with one of his Kansas person misdemeanor convictions to form one person felony. Ewing argues that because the elements of both of his Arkansas convictions were broader than the elements of any Kansas comparable crime, the district court engaged in judicial fact-finding when determining that his Arkansas convictions were person crimes, violating Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
The State first argues that Ewing has failed to designate an appropriate record to consider his argument regarding his Arkansas battery conviction. As such, the State argues that this court must presume that the district court's action was proper. On the merits, the State argues that the district court properly classified both Arkansas convictions as person misdemeanors for criminal history purposes.
At the sentencing hearing, Ewing did not object to any of the findings in the PSI reports. However, as the State acknowledges, Ewing may challenge the correctness of his criminal history score for the first time on appeal because an incorrect criminal history score results in an illegal sentence which the court can correct at any time. See K.S.A. 22-3504(1) ; State v. Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 (2015).
Resolution of Ewing's claim involves the interpretation of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2016 Supp. 21-6801 et seq. Interpretation of a sentencing statute is a question of law, and our standard of review is unlimited. State v. Nguyen, 304 Kan. 420, 422, 372 P.3d 1142 (2016).
Under the KSGA, courts must aggregate every three prior adult convictions of class A and B person misdemeanors to form one person felony for criminal history purposes. K.S.A. 2016 Supp. 21-6811(a). The KSGA also requires courts to include out-of-state convictions as part of an offender's criminal history. K.S.A. 2016 Supp. 21-6811(e)(1). While the KSGA requires Kansas courts to classify out-of-state convictions as either a felony or misdemeanor according to the convicting jurisdiction, the KSGA instructs Kansas courts to classify out-of-state convictions as a person or nonperson crime by comparing the out-of-state crime to a comparable offense in the Kansas criminal code. K.S.A. 2016 Supp. 21-6811(e)(2)-(3). K.S.A. 2016 Supp. 21-6811(e)(3) provides:
"The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson, comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed shall be referred to. If the state of Kansas does not have a comparable offense in effect on the date the current crime of conviction was committed, the out-of-state conviction shall be classified as a nonperson crime."
In classifying out-of-state convictions as person or nonperson crimes for criminal history purposes, courts compare the prior out-of-state conviction to the comparable Kansas crime in effect at the time the current crime of conviction was committed. State v. Keel, 302 Kan. 560, 590, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016). "For purposes of determining criminal history, the offenses need only be comparable, not identical." State v. Williams, 299 Kan. 870, 875, 326 P.3d 1070 (2014) (quoting State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 [2003], overruled on other grounds by Dickey, 301 Kan. at 1032 ). Recently, our Supreme Court reaffirmed that "[w]e do not require identical statutory language when comparing out-of-state convictions." State v. Rodriguez, 305 Kan. 1139, 1151, 390 P.3d 903 (2017).
Comparable crimes are crimes that are similar in nature and cover a similar type of criminal conduct. State v. Riolo, 50 Kan. App. 2d 351, 353, 330 P.3d 1120 (2014). When an out-of-state conviction is similar in nature and covers the same type of criminal conduct as a Kansas person crime, the analysis is over; the out-of-state crime is classified as a person crime for criminal history purposes. State v. Fahnert, 54 Kan. App. 2d 45, 49, 396 P.3d 723 (2017). But when the comparable Kansas crime criminalizes some conduct as a person offense and other conduct as a nonperson offense, further constitutional analysis is required to determine the propriety of classifying an out-of-state conviction as a person offense for criminal history purposes. 54 Kan. App. 2d at 49.
United States Supreme Court decisions
In Apprendi, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. The Apprendi Court reasoned that the Constitution did not permit the Legislature to remove from the jury any fact-finding responsibility that could increase a defendant's sentence. 530 U.S. at 490. Put differently, the courts are forbidden from invading the province of the jury's fact-finding responsibility, even for sentencing purposes. See Apprendi, 530 U.S. at 490.
Next, in Descamps, the Court determined that Apprendi was implicated when a district court enhanced a defendant's sentence based on a factual finding that went beyond the existence of a prior conviction and the statutory elements that comprised the prior conviction. 133 S. Ct. at 2281-82. The Court clarified that when the statute forming the basis of the defendant's prior conviction is "indivisible," i.e., it does not contain alternative elements, "[s]entencing courts may ‘look only to the statutory definitions'—i.e., the elements—of a defendant's prior offenses, and not‘to the particular facts underlying those convictions' [Citation omitted]." 133 S. Ct. at 2283. This method is called the "formal categorical approach." 133 S. Ct. at 2283. But when a statute is "divisible," i.e., it comprises multiple, alternative versions of the crime, then courts are permitted to examine a limited class of extra-statutory materials "to determine which of a statute's alternative elements formed the basis of the defendant's prior conviction." 133 S. Ct. at 2284. This method is called the "modified categorical approach." 133 S. Ct. at 2285.
Descamps involved the application of the Armed Career Criminal Act (ACCA), which increases a defendant's sentence if he or she has three prior violent felonies. When applying the categorical approach to determine whether a defendant's prior conviction is a violent felony under the ACCA, the Court stated that a sentencing court must compare the elements of the statute forming the basis of the defendant's prior conviction "with the elements of the ‘generic’ crime—i.e., the offense as commonly understood. The prior conviction qualifies as an ACCA predicate only if the statute's elements are the same as, or narrower than, those of the generic offense." 133 S. Ct. at 2281.
In Dickey, our Supreme Court adopted the categorical and the modified categorical approaches discussed in Descamps in deciding whether the defendant's pre-KSGA burglary adjudication could be classified as a person felony for criminal history purposes. 301 Kan. at 1036-40. However, our Supreme Court did not adopt the identical-or-narrower rule set forth in Descamps. See Dickey, 301 Kan. at 1036-40 ; see also State v. Moore, 52 Kan. App. 2d 799, 814, 377 P.3d 1162 (2016) (The Kansas Supreme Court "didn't adopt the identical-or-narrower rule—doing so would have required overruling past Kansas caselaw holding that the comparable Kansas offense doesn't have to be identical to the prior-conviction statute."), rev. granted December 13, 2016.
In Mathis v. United States, 579 U.S. ––––, 136 S. Ct. 2243, 2251, 195 L. Ed. 2d 604 (2016), another case applying the ACCA, the Court reaffirmed the rule that "a state crime cannot qualify as an ACCA predicate if its elements are broader than those of a listed generic offense." The Court also clarified that the modified categorical approach applies only to statutes that list "multiple elements disjunctively" and not to statutes that merely list "various factual means of committing a single element." 136 S. Ct. 2249, 2253-54. To illustrate the difference, the Court provided an example. If "a statute requires use of a ‘deadly weapon’ as an element of a crime and further provides that the use of a ‘knife, gun, bat, or similar weapon’ would all qualify," then the application of the modified categorical approach would be inappropriate because that statute "merely specifies diverse means of satisfying a single element of a single crime." 136 S. Ct. at 2249.
Ewing's prior Arkansas convictions
Returning to our facts, we must determine whether the district court erred in classifying Ewing's Arkansas convictions as person misdemeanors for criminal history purposes under the KSGA and applicable caselaw. The PSI report stated that Ewing was convicted in Arkansas of second-degree false imprisonment pursuant to Ark. Code Ann. § 5-11-104. That statute provides in part: "A person commits the offense of false imprisonment in the second degree if, without consent and without lawful authority, the person knowingly restrains another person so as to interfere substantially with the other person's liberty." Ark. Code Ann. § 5-11-104(a).
The PSI report indicated that Ewing's Arkansas second-degree false imprisonment conviction is comparable to the Kansas crime of unlawful criminal restraint, a class A person misdemeanor. In 2015 and 2016, when Ewing committed his current crimes of conviction, the Kansas criminal restraint statute was found at K.S.A. 21-5411. K.S.A. 2015 Supp. 21-5411 states:
"(a) Criminal restraint is knowingly and without legal authority restraining another person so as to interfere substantially with such person's liberty.
"(b) Criminal restraint is a class A person misdemeanor.
"(c) This section shall not apply to acts done in the performance of duty by any law enforcement officer of the state of Kansas or any political subdivision thereof.
"(d) Any merchant, or a merchant's agent or employee, who has probable cause to believe that a person has actual possession of and has wrongfully taken, or is about to wrongfully take merchandise from a mercantile establishment, may detain such person on the premises or in the immediate vicinity thereof, in a reasonable manner and for a reasonable period of time for the purpose of investigating the circumstances of such possession. Such reasonable detention shall not constitute an arrest nor criminal restraint."
Ewing argues that subsections (c) and (d) of K.S.A. 2015 Supp. 21-5411 make the Arkansas statute broader than the Kansas statute because under the Arkansas statute, the State can convict those who are performing their law enforcement duties or who are using the shopkeeper's privilege to detain someone. This argument is incorrect. Ark. Code Ann. § 16-81-106 grants the authority to arrest (i.e., restrain/imprison individuals) to law enforcement officers. Thus, the State of Arkansas would not charge a law enforcement officer with false imprisonment while performing his or her duties because Ark. Code Ann. § 16-81-106 permits such conduct. Likewise, Ark. Code Ann. § 5-36-116(a) grants the shopkeeper's privilege to merchants in Arkansas. Therefore, the State of Arkansas would not charge a merchant with false imprisonment while acting under the shopkeeper's privilege.
We agree with Ewing's PSI report that Ark. Code Ann. § 5-11-104(a) and K.S.A. 2015 Supp. 21-5411(a) are comparable. Both statutes have the same overall purpose: preventing the unlawful imprisonment/restraint of others. Both statutes are indivisible, and the elements of each statute are almost identical. The only difference between the statutes is that Ark. Code Ann. § 5-11-104(a) requires that the imprisonment be committed "without consent." Because Ewing was convicted under the Arkansas statute, which is limited to persons committing the act without consent, Ewing would necessarily be convicted under the Kansas statute as the remaining elements are identical. Stated differently, Ark. Code Ann. § 5-11-104(a) is actually narrower than K.S.A. 2015 Supp. 21-5411(a).
In sum, the Arkansas crime of second-degree false imprisonment is comparable to the Kansas crime of criminal restraint under either the "comparable-but-not-identical" elements test approved by the Kansas Supreme Court in Williams and Rodriguez or under the "identical-or-narrower" elements test set forth by the United States Supreme Court in Descamps and Mathis. For this reason, we conclude the district court did not err in classifying Ewing's Arkansas conviction of second-degree false imprisonment as a person misdemeanor for criminal history purposes.
Turning to Ewing's Arkansas conviction of battery/domestic battering, we find that determining whether the district court properly scored this conviction as a person misdemeanor for criminal history purposes is problematic. Although the PSI criminal history worksheet states that Ewing was convicted of "Battery-3rd Degree-Domestic," the PSI report provides the general statute number for third-degree battery ( Ark. Code Ann. § 5-13-203 ). Thus, the record is unclear whether Ewing was convicted of Arkansas domestic battering or Arkansas third-degree battery. Likewise, the record is unclear under which subsection of either statute Ewing was convicted.
Considering the Arkansas domestic battering statute first, Ark. Code Ann. § 5-26-305(a) provides:
"(a) A person commits domestic battering in the third degree if:
(1) With the purpose of causing physical injury to a family or household member, the person causes physical injury to a family or household member;
(2) The person recklessly causes physical injury to a family or household member;
(3) The person negligently causes physical injury to a family or household member by means of a deadly weapon; or
(4) The person purposely causes stupor, unconsciousness, or physical or mental impairment or injury to a family or household member by administering to the family or household member, without the family or household member's consent, any drug or other substance." (Emphasis added.)
This statute's nearest Kansas equivalent is K.S.A. 2015 Supp. 21-5414(a), which states:
"Domestic battery is:
(1) Knowingly or recklessly causing bodily harm by a family or household member against a family or household member; or
(2) knowingly causing physical contact with a family or household member by a family or household member when done in a rude, insulting or angry manner."
As for Arkansas third-degree battery, Ark. Code Ann. § 5-13-203(a) provides:
"(a) A person commits battery in the third degree if:
(1) With the purpose of causing physical injury to another person, the person causes physical injury to any person;
(2) The person recklessly causes physical injury to another person;
(3) The person negligently causes physical injury to another person by means of a deadly weapon; or
(4) The person purposely causes stupor, unconsciousness, or physical or mental impairment or injury to another person by administering to the other person, without the other person's consent, any drug or other substance." (Emphasis added.)
Finally, the nearest comparable Kansas battery statute, K.S.A. 2015 Supp. 21-5413, states in relevant part:
"(a) Battery is:
(1) Knowingly or recklessly causing bodily harm to another person; or
(2) knowingly causing physical contact with another person when done in a rude, insulting or angry manner."
Ewing initially argues that his Arkansas battery/domestic battering conviction is broader than its Kansas equivalent because the Arkansas definition of "family or household member" includes more people than the Kansas definition of "family or household member." Arkansas defines "family or household member" as:
"(2) ‘Family or household member’ means:
(A) A spouse;
(B) A former spouse;
(C) A parent;
(D) A child, including any minor residing in the household;
(E)(i) Persons related by blood within the fourth degree of consanguinity.
(ii) The degree of consanguinity is computed pursuant to § 28-9-212;
(F) Persons who presently or in the past have resided or cohabited together;
(G) Persons who have or have had a child in common; or
(H) Persons who are presently or in the past have been in a dating relationship together." Ark. Code Ann. § 5-26-302
Kansas defines "family or household member" as:
" ‘Family or household member’ means persons 18 years of age or older who are spouses, former spouses, parents or stepparents and children or stepchildren, and persons who are presently residing together or who have resided together in the past, and persons who have a child in common regardless of whether they have been married or who have lived together at any time. ‘Family or household member’ also includes a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time." K.S.A. 2015 Supp. 21-5414(c)(1).
Ewing argues that the Arkansas domestic battering statute is broader than the Kansas statute because its definition of "family or household member" includes people within the fourth degree of consanguinity, such as first cousins. Conversely, the Kansas definition of the same term does not recognize such extended family members. Thus, Ewing argues that the Arkansas domestic battering statute is broader than the Kansas statute regardless of under which subsection of the Arkansas statute he was convicted.
Ewing's argument implicitly applies the "identical-or-narrower" elements test set forth in Descamps, which has not been adopted in Kansas. Under the "comparable-but-not-identical" elements test approved by the Kansas Supreme Court in Williams and Rodriguez, we find that the statutes' definitional sections are comparable for criminal history purposes. The purpose of the definitions are similar because they both protect people in a family or domestic relationship. Arkansas' statute extending the definition to cousins does not make the criminal conduct covered by each statute any different.
We also find this court's decision in State v. Russ, No. 115,111, 2017 WL 1821215 (Kan. App. 2017) (unpublished opinion), instructive on this matter. In that case, the defendant argued that his domestic battery conviction under a Wichita city ordinance was not comparable to K.S.A. 2016 Supp. 21-5414(a). Specifically, the defendant argued that the Wichita ordinance was broader than the Kansas statute because the ordinance included people involved in a dating relationship, while the statute did not. The Russ court was not persuaded by the defendant's argument for several reasons and pointed out that "[r]egardless of the relationship between the batterer and the victim battered, a battery in Kansas is a person offense." 2017 WL 1821215, at *4. In other words, if a person batters a cousin in Arkansas, it is a domestic battering. If a person batters a cousin in Kansas, it is not a domestic battery but it is still a simple battery, a class B person misdemeanor, meaning the crimes are comparable for criminal history purposes. See K.S.A. 2015 Supp. 21-5413(g)(1). We are persuaded by this logic. Thus, we reject Ewing's argument that his Arkansas battery/domestic battering conviction is not comparable to a Kansas person crime simply because the Arkansas definition of "family or household member" includes more people than the Kansas definition of the same term.
Next, Ewing argues that his case must be remanded because subsections (a)(3) and (a)(4) of both the Arkansas battery and domestic battering statutes are not comparable to any Kansas person crime. We agree with Ewing as to subsection (a)(3) of the Arkansas statutes. Comparing subsection (a)(3) of the Arkansas statutes to the equivalent Kansas battery and domestic battery statutes, it is clear that neither of the Kansas statutes allows for the commission of a negligent battery. If Ewing had been convicted in Arkansas of either negligent battery or negligent domestic battering, then his Arkansas conviction would not be comparable to a Kansas person crime and should have been scored as a nonperson crime. See Rodriguez, 305 Kan. 1139, Syl. ¶ 5 ("An out-of-state misdemeanor that only requires the defendant to act with criminal negligence is not comparable to a Kansas offense that requires the defendant to act recklessly. If an out-of-state misdemeanor is not comparable to a Kansas offense, it must be scored as a nonperson crime in this state.").
Turning to subsection (a)(4) of the Arkansas statutes, we disagree with Ewing's argument that this subsection is not comparable to a Kansas person crime. Although we agree with Ewing that subsection (a)(4) is not comparable to Kansas battery or domestic battery, as the State points out, Kansas still has a comparable statute: Unlawful administration of a substance found at K.S.A. 2015 Supp. 21-5425. Of import, in Kansas, unlawful administration of a substance is a class A person misdemeanor. K.S.A. 2015 Supp. 21-5425(b). K.S.A. 2015 Supp. 21-5425(a) states: "Unlawful administration of a substance is the administration of a substance to another person without consent with the intent to impair such other person's physical or mental ability to appraise or control such person's conduct." We find this crime to be comparable to the crimes defined in subsection (a)(4) of the Arkansas battery and domestic battering statutes. The crimes are similar in nature and cover the same type of criminal conduct. More specifically, the crimes forbid intentionally or purposely administering a substance to another person without consent in order to cause physical or mental impairment to the other person.
With respect to the disposition of this appeal, Ewing argues that we should remand his case to the district court to determine under which subsection of the Arkansas statutes he was convicted. The State argues that Ewing has failed to designate an appropriate record to consider his argument regarding his Arkansas battery/domestic battering conviction; thus, we must presume that the district court's action was proper. We disagree with the State. Our Supreme Court has made it clear that criminal history challenges can be raised for the first time on appeal even without an objection by the defendant at sentencing. Dickey, 301 Kan. at 1034. Although the general rule is that the burden is on the appellant to designate a record that affirmatively shows prejudicial error, the State cites no authority applying that general rule to a criminal history challenge. Thus, we conclude that Ewing's claim is not procedurally barred.
The Arkansas domestic battering statute and the Arkansas third-degree battery statute are both divisible statutes, meaning that each statute provides multiple, alternative methods of committing the crime. See Descamps, 133 S. Ct. at 2284 ; Dickey, 301 Kan. at 1037-38. As such, it is appropriate for this court to remand the case to the district court to determine under which Arkansas statute Ewing was convicted and to examine appropriate documents related to the conviction to determine which of the statute's alternative elements formed the basis of Ewing's prior conviction. See Descamps, 133 S. Ct. at 2284 ; Dickey, 301 Kan. at 1037-38. If the appropriate documents establish that Ewing was convicted under a subsection of the Arkansas statute that is comparable to a Kansas person crime, then the Arkansas battery/domestic battering conviction can be scored as a person offense for criminal history purposes. But if it is unclear under which subsection of the Arkansas statute Ewing was convicted or if the records show that Ewing was convicted of either negligent battery or negligent domestic battering, then his Arkansas conviction is not comparable to a Kansas person crime and should be scored as a nonperson offense for criminal history purposes.
Sentences vacated and remanded with directions.