Opinion
No. 111277.
04-10-2015
STATE of Kansas, Appellee, v. Adam H. GREENLEAF, Appellant.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Michelle A. Davis, 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 ARNOLD–BURGER, P.J., POWELL, J., and MERLIN G. WHEELER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Adam H. Greenleaf appeals his criminal history score, specifically the district court's decision to treat his 1992 Kansas juvenile adjudication of aggravated assault as a person felony. Adopting the reasoning of another panel of this court, we find that the district court did not err when it categorized Greenleaf's 1992 juvenile adjudication of aggravated assault as a person felony for criminal history purposes.
Factual and Procedural History
Greenleaf pleaded guilty to and was convicted of aggravated assault. In the presentence investigation report, Greenleaf's 1992 Kansas juvenile adjudication of aggravated assault was listed as a person felony. Greenleaf did not object to the classification of his Kansas juvenile adjudication or his criminal history score. The district court sentenced Greenleaf to 30 months' imprisonment.
Greenleaf filed a timely notice of appeal.
Analysis
Greenleaf appeals the district court's classification of his 1992 Kansas juvenile adjudication of aggravated assault as a person felony, relying on State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014. He relies on Murdock to argue that his in-state adjudication should have been classified as a nonperson felony since it occurred before the 1993 Kansas Sentencing Guidelines Act (KSGA) was in place.
This court may consider a challenge to the legality of a sentence for the first time on appeal.
The State argues that Greenleaf cannot raise this issue because he failed to object to the classification at the time of sentencing, which resulted in invited error.
Although Greenleaf concedes that his issue has been raised for the first time on appeal, he asserts that his challenge is to the legality of his sentence, which can be raised at any time. See K.S.A. 22–3504(1). We agree. By challenging the accuracy of his criminal history score, he alleges an illegal sentence, and this court may consider his argument for the first time on appeal. See State v. Kelly, 298 Kan. 965, 975–76, 318 P.3d 987 (2014) (a court may review an illegal sentence allegation for the first time on appeal); State v. Neal, 292 Kan. 625, 630–31, 258 P.3d 365 (2011) (when a criminal history score is incorrect, the resulting sentence is an illegal sentence).
Greenleaf's 1992 Kansas juvenile adjudication of aggravated assault was properly classified as a person felony for purposes of calculating his criminal history.
Whether a prior conviction or adjudication 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. Murdock, 299 Kan. at 314.
This court has already addressed 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. In Waggoner, our court undertook a thorough examination of Murdock and related cases before determining that “[t]he holding in [Murdock ] is limited to the classification for criminal history purposes of out-of-state convictions committed prior to the enactment of the Kansas Sentencing Guidelines Act.” Waggoner, 51 Kan.App.2d 144, Syl. ¶ 1. In coming to this decision, this court noted that an argument similar to Greenleaf's—that is, that a pre-KSGA in-state crime should be scored as a nonperson felony”—runs counter to the overall design and legislative purposes of the KSGA” and that “the legislature never intended all Kansas pre-KSGA convictions and juvenile adjudications to be scored as nonperson offenses.” 51 Kan.App.2d at 155. As such, this court reasoned that in-state, pre-KSGA offenses should still be scored as they were before Murdock: with a focus “on the nature of the offense as set forth in the statutory elements of the crime.” Waggoner, 51 Kan.App.2d at 156. We adopt the reasoning of Waggoner here.
In 1992, aggravated assault was “[u]nlawfully assaulting or striking at another with a deadly weapon.” K.S.A. 21–3410(a) (Ensley 1988). Focusing on the nature of the offense, it is clear that aggravated assault should be categorized as a person crime because it is a crime in which a defendant assaults or strikes at another person.
Moreover, the most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). In 1969, when the Kansas Criminal Code was adopted, the legislature set out a very specific statutory outline. See L.1969, eh. 180. Crimes listed under Article 34 of the Code were designated as “Crimes Against Persons.” K.S.A. 21–3410 (Ensley 1988), aggravated assault, was listed under Article 34. Accordingly, the legislature's intent was clear. Aggravated assault was designated as a person crime. That designation has remained since that time and was simply further codified with the adoption of the KSGA in 1993. See K.S.A. 21–3410 (aggravated assault is severity level 7 person felony). Accordingly, in the case of aggravated assault under K.S.A. 21–3410, it is clear that the legislature has always intended it to be classified as a person crime.
Thus, the district court did not err when it categorized Greenleaf's 1992 adjudication of aggravated assault as a person felony for criminal history purposes.
Affirmed.