Opinion
No. 107,144.
2013-04-19
STATE of Kansas, Appellee, v. Robert L. BROWNING, Appellant.
Appeal from Sedgwick District Court; Warren Wilbert, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Warren Wilbert, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this sentencing appeal, we hold the district court erred when it used Robert L. Browning's 1985 conviction for sale of marijuana to raise the severity level of his crime of cultivation and distribution of a controlled substance. The sentencing court, however, on remand, can include the conviction when determining his criminal history.
In June 2011, Robert L. Browning pled guilty to one count of cultivation and distribution of a controlled substance—hydrocodone, an opiate, in violation of K.S.A.2010 Supp. 21–36a05(a)(1) and (c)(1)(B), after having one prior conviction for sale of marijuana in Case No. 85CR402. He also pled guilty to one count of no drug tax stamp in violation of K.S.A. 79–5208.
Based upon his 1985 conviction, the district court found the current distribution offense was a severity level 2 drug crime and that his criminal history score was C. In determining Browning's criminal history score, the court included the 1985 conviction as an adult nonperson felony; Browning did not object to his criminal history score. The court denied Browning's motion for a departure sentence and imposed concurrent terms of 65 months' and 5 months' incarceration.
Immediately after his sentencing, Browning filed a motion to correct illegal sentence under K.S.A. 22–3504. In the motion, Browning argued that the court incorrectly calculated his criminal history score as C. Browning asserted that the 1985 drug conviction should have been excluded from his criminal history score because that conviction was used to enhance his crime to a severity level 2 offense. Following a brief hearing, the court granted the motion and reduced Browning's sentence to 60 months, the mitigated presumptive sentence for a severity level 2 drug offense with a criminal history of D.
The district court granted leave to file a late notice of appeal. Browning appealed the sentence imposed at the resentencing hearing and all other adverse rulings.
Browning seeks to vacate his sentence, essentially reversing the argument he made before the trial court. Here, Browning contends the district court erred in enhancing his current crime of conviction based on his 1985 conviction for distribution of marijuana. Browning asserts his 1985 conviction does not meet the requirements of K.S.A.2010 Supp. 21–36a05 to elevate the severity level of his current conviction. The State concedes that Browning's conviction should have been sentenced as a severity level 3 drug offense, but also asserts that if this correction is made, the 1985 conviction must be included in the criminal history calculations.
Interpretation of a statute is a question of law over which this court exercises unlimited review. State v. Hopkins, 295 Kan. 579, 581, 285 P.3d 1021 (2012).
K.S.A.2010 Supp. 21–36a05 prohibits the cultivation, distribution, or possession with the intent to distribute various controlled substances including opiates. Violation of this subsection is a severity level 2 drug felony if the person has one prior conviction under subsection (a)(1), under K.S.A. 65–4161 prior to its repeal, or under a substantially similar offense from another jurisdiction. K.S.A.2010 Supp. 21–36a05(c)(1)(B).
Here, Browning's prior conviction was for sale of marijuana in 1985. This conviction would not be included within the purview of subsection (a)(1) or K.S.A. 65–4161. Thus, the conviction could not be used to enhance the severity level of Browning's current crime and the court erred in sentencing Browning for a severity level 2 drug offense. However, because the 1985 conviction could not be used to enhance the severity level of his conviction, the district court must include that conviction when calculating Browning's criminal history score. See K.S.A.2010 Supp. 21–4710(d)(2).
For these reasons, Browning's sentence is vacated and the matter is remanded for sentencing consistent with this opinion.