Opinion
111,183 111,184 111,185 111,186.
06-12-2015
STATE of Kansas, Appellee, v. Jesse A. CAMACHO, Appellant.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., ARNOLD–BURGER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jesse Camacho appeals his sentences following his multiple felony convictions in four separate cases. In this consolidated appeal, Camacho argues: (1) His sentences were illegal because the district court classified his 1986 Kansas juvenile adjudication of indecent liberties of a child as a person offense for criminal history purposes; and (2) the district court violated his constitutional rights when it sentenced him to an increased sentence, based on his prior criminal history, without requiring the State to prove the criminal history to a jury beyond a reasonable doubt. For the reasons stated herein, we affirm the district court's judgment.
The facts underlying Camacho's convictions are irrelevant here, but we will briefly review the disposition in each of his four cases. On August 24, 2009, Camacho pled guilty to two counts of offender registration violation in 08CR2649. On October 26, 2009, Camacho pled guilty to four counts of making a false information in 09CR358. On December 21, 2009, the district court imposed a controlling sentence of 170 months' imprisonment in 08CR2649 and 23 months' imprisonment in 09CR358. The district court granted a dispositional departure to probation with community corrections for 36 months.
At the sentencing hearing on December 21, 2009, the district court found that Camacho's criminal history score was A—based in part on his 1986 juvenile adjudication in Dickinson County, Kansas, of indecent liberties with a child. Camacho initially challenged his criminal history and argued that his 1986 juvenile adjudication of indecent liberties with a child, as well as another conviction, should not be calculated in his criminal history score. However, after the State provided defense counsel with certified journal entries relating to those convictions, Camacho withdrew his objections.
On October 31, 2013, Camacho pled guilty to one count of offender registration violation in 11CR1578. Also on October 31, 2013, Camacho pled guilty to one count of arson in 13CR1489. On January 15, 2014, the district court sentenced Camacho to 122 months' imprisonment in 11CR1578 and 46 months' imprisonment in 13CR1489. These sentences were calculated based on Camacho's criminal history score of A, which included his 1986 juvenile adjudication in Dickinson County, Kansas, of indecent liberties with a child. Camacho did not object to his criminal history score at the sentencing hearing. Also at the same hearing, the district court revoked Camacho's probation in 08CR2649 and 09CR358. The district court ordered Camacho to serve a modified prison sentence of 122 months in 08CR2649. Ultimately, all four of Camacho's sentences were ordered to run concurrently, resulting in a controlling 122–month prison sentence. Camacho timely appealed from that ruling.
Camacho first argues that the sentences imposed by the district court were illegal because the district court classified his 1986 Kansas juvenile adjudication of indecent liberties with a child as a person offense for criminal history purposes. He asserts that under state v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, all pre-Kansas Sentencing Guidelines Act (KSGA) offenses must be scored as nonperson offenses. Therefore, Camacho asserts that this court must remand all four of his cases to the district court for resentencing.
Whether a prior conviction is properly classified as a person or nonperson offense involves the interpretation of the KSGA. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).
As a threshold matter, the State argues that the invited error doctrine precludes review of this issue on the merits. The State points out that Camacho withdrew any objections he ever made to the use of his 1986 juvenile adjudication to determine his criminal history score.
Since the parties filed their briefs, this court issued its opinion in State v. Ruiz, 51 Kan.App.2d 212, 343 P.3d 544 (2015). In Ruiz, this court held that when a defendant stipulates at sentencing to the factual basis supporting his or her criminal history classification, the defendant may be barred from challenging the factual stipulations on appeal under the invited error doctrine. However, a defendant who stipulates to the legal effect of his or her criminal history classification is not barred from challenging the criminal history classification on appeal. 51 Kan.App.2d 212, Syl. ¶ 5. Camacho is not challenging the factual basis supporting his 1986 juvenile adjudication of indecent liberties with a child. Rather, he is challenging the legal effect of the classification of his 1986 juvenile adjudication as a person felony. Based on the rationale of Ruiz, the invited error doctrine does not preclude our review of Camacho's sentencing claim.
Furthermore, by challenging the accuracy of his criminal history score, Camacho alleges an illegal sentence. A court may correct an illegal sentence at any time. See K.S.A. 22–3504(1) ; State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011) (incorrect criminal history score results in an illegal sentence). Thus, we will review the merits of Camacho's claim.
Camacho relies on our Supreme Court's decision in Murdock to support his argument that the district court erred by classifying his pre-KSGA juvenile adjudication as a person offense. Murdock involved a sentencing appeal by a defendant who pled guilty to two counts of aggravated robbery and one count of robbery; his criminal history score included two out-of-state robbery convictions predating the 1993 enactment of the KSGA. Our Supreme Court held that when calculating a defendant's criminal history that includes out-of-state convictions committed prior to the enactment of the KSGA, the out-of-state convictions must be classified as nonperson offenses. 299 Kan. 312, Syl. ¶ 5.
Camacho's brief does not acknowledge that Murdock's holding is limited to the classification of out-of-state convictions committed prior to the enactment of the KSGA. Camacho's 1986 juvenile adjudication of indecent liberties with a child was for a crime committed in Kansas. The issue of whether Murdock's holding should be extended to apply to in-state pre-KSGA convictions is unsettled in Kansas, but cases are pending before the Kansas Supreme Court in which the court will address this issue.
In State v. Waggoner, 51 Kan.App.2d 144, Syl. ¶ 1, 343 P.3d 530 (2015), petition for rev. filed February 18, 2015, this court recently held that the holding in Murdock is limited to the classification of out-of-state pre-KSGA convictions for criminal history purposes and does not apply to in-state convictions. Although the decision in Waggoner is not final, we adopt its reasoning as applied to Camacho's case. Thus, we conclude the district court did not violate the holding in Murdock by classifying Camacho's Kansas pre-KSGA juvenile adjudication as a person offense for criminal history purposes.
Next, Camacho argues that the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it imposed an increased sentence based upon his prior criminal history without requiring the State to prove the criminal history to a jury beyond a reasonable doubt. We lack jurisdiction to consider this claim as to Camacho's sentences in 08CR2649 and 09CR358 because Camacho did not timely appeal his original sentence in either case. See K.S.A.2014 Supp. 22–3608(c) (defendant has 14 days to appeal sentence for crimes committed after July 1, 1993). Thus, we dismiss Camacho's appeal on this issue, in part, for lack of subject matter jurisdiction.
In any event, Camacho acknowledges this issue previously was decided and rejected by our Supreme Court in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). The Court of Appeals is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). There is no indication that our Supreme Court is considering a departure from its holding in Ivory. See, e.g., State v. Castleberry, 301 Kan. 170, 191, 339 P.3d 795 (2014) (Supreme Court has repeatedly affirmed Ivory ).
Affirmed in part and dismissed in part.