Opinion
119 172
05-31-2019
State of Kansas, Appellee, v. Michael Edward Henderson, Appellant.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Rachel Lamm, county attorney, and Derek Schmidt, attorney general, for appellee. Before Malone, P.J., Schroeder, J., and McAnany, S.J.
NOT DESIGNATED FOR PUBLICATION
Appeal from Thomas District Court; Glenn D. Schiffner, judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Rachel Lamm, county attorney, and Derek Schmidt, attorney general, for appellee. Before Malone, P.J., Schroeder, J., and McAnany, S.J.
MEMORANDUM OPINION
PER CURIAM.
Michael E. Henderson appeals the district court's decision revoking his probation and ordering him to serve his underlying prison sentence. Henderson claims the district court erred in failing to award jail credit for a 180-day intermediate sanction he served while on probation. The State agrees with this claim and has already filed a corrected journal entry to award the jail credit. Also, for the first time on appeal, Henderson claims his sentence is illegal because the district court erred in classifying his 2005 Mississippi burglary conviction as a person offense for criminal history purposes. We agree with Henderson's claim, so we vacate his sentence and remand for resentencing with directions to classify the Mississippi burglary conviction as a nonperson felony.
We will briefly state the facts. On September 19, 2012, the State charged Henderson with one count of possession of methamphetamine with intent to distribute. Henderson later pled guilty as charged. The amended presentence investigation report listed a Mississippi conviction for "burglary of a dwelling" and classified it as a person felony resulting in a criminal history score of C. On January 7, 2015, the district court sentenced Henderson to 68 months' imprisonment but granted a dispositional departure to probation for 36 months.
During his probation term, Henderson served two three-day "quick dips" for probation violations as well as a 180-day intermediate prison sanction. The State later moved to revoke Henderson's probation, and he stipulated to using controlled substances and failing to report to his probation officer. On April 24, 2017, the district court revoked Henderson's probation and ordered him to serve the remainder of his prison sentence. In the journal entry of probation revocation, the district court did not award credit for time served during Henderson's 180-day intermediate sanction. Henderson timely appealed.
On appeal, Henderson first claims the district court erred in failing to award jail credit for the 180-day intermediate sanction he served while on probation. The State has conceded this claim and filed a second nunc pro tunc journal entry on January 22, 2019, which awards credit for the time served during the 180-day intermediate sanction. Thus, this issue has been resolved and we need not address it further.
Next, Henderson claims the district court erred in calculating his criminal history score by classifying his prior Mississippi burglary conviction as a person felony instead of a nonperson felony, making his sentence illegal under K.S.A. 2018 Supp. 22-3504(3). Whether a sentence is illegal is a question of law over which an appellate court has unlimited review. State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011). Likewise, interpretation of a statute is a question of law subject to unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).
In 2017, the Kansas Legislature amended K.S.A. 22-3504 and codified the definition of an "illegal sentence" as follows:
"'Illegal sentence' means a sentence: Imposed by a court without jurisdiction; that does not conform to the applicable statutory provision, either in character or punishment; or that is ambiguous with respect to the time and manner in which it is to be served at the time it is pronounced. A sentence is not an 'illegal sentence' because of a change in the law that occurs after the sentence is pronounced." (Emphasis added.) K.S.A. 2018 Supp. 22-3504(3).
Henderson is challenging the legality of his sentence for the first time on appeal. However, K.S.A. 2018 Supp. 22-3504(1) provides that "[t]he court may correct an illegal sentence at any time." Due to the statutory mandate that the court make correct an illegal sentence "at any time," we will address Henderson's claim for the first time on appeal.
We begin our analysis by reviewing the statutory scheme in Kansas for determining a defendant's criminal history for sentencing found in the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2018 Supp. 21-6801 et seq. When determining a defendant's criminal history score, all felony convictions that occurred before the current sentencing are considered. K.S.A. 2018 Supp. 21-6810(a). Prior burglary convictions are addressed in K.S.A. 2018 Supp. 21-6811(d). Under K.S.A. 2018 Supp. 21-6811(d), a prior burglary offense will only be classified as a person felony for criminal history purposes if the burglary was committed within a dwelling. See K.S.A. 2018 Supp. 21-5807(a)(1) and (c)(1)(A)(i). However, whether Henderson's Mississippi burglary was committed within a dwelling is not at issue in this appeal.
Kansas' sentencing statutes also address out-of-state convictions in classifying the offender's criminal history in K.S.A. 2018 Supp. 21-6811(e), which provides in part:
"(e)(1) Out-of-state convictions and juvenile adjudications shall be used in classifying the offender's criminal history.
(2) An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction.
(3) 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 crime shall be classified as a nonperson crime."
Under this statute, in classifying a defendant's out-of-state conviction as a person or nonperson crime for criminal history purposes, the court shall refer to comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed. If the comparable offense in Kansas is classified as a person crime, then the defendant's out-of-state conviction will be classified as a person crime for criminal history purposes. But if the comparable offense in Kansas is classified as a nonperson crime, or if Kansas has no comparable offense, then the defendant's out-of-state conviction will be classified as a nonperson crime for criminal history purposes.
The Kansas statutory scheme for classifying out-of-state convictions as person or nonperson crimes for criminal history purposes has not changed since the KSGA went into effect in 1993. The law in Kansas has always required a sentencing court to refer to "comparable offenses" when designating an out-of-state crime as person or nonperson. See K.S.A. 1993 Supp. 21-4711(e). But the Kansas Supreme Court's interpretation of the term "comparable offenses" has not always been consistent. For instance, in State v. Williams, 299 Kan. 870, 873, 326 P.3d 1070 (2014), our Supreme Court construed K.S.A. 21-4711(e) and stated that the Kansas crime that was "'the closest approximation'" of the out-of-state crime was a comparable offense and that crimes need not have identical elements to be comparable for making the person or nonperson designation. See State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003). But in State v. Wetrich, 307 Kan. 552, 562, 412 P.3d 984 (2018), the court reexamined almost identical statutory language and arrived at a different meaning of the term "comparable offenses."
In Wetrich, the Kansas Supreme Court considered whether the defendant's prior Missouri conviction of second-degree burglary could be classified as a person felony for criminal history purposes. To resolve the issue, the court construed the term "comparable offenses" in K.S.A. 2017 Supp. 21-6811(e)(3). The language of this statute is almost identical to the language in K.S.A. 21-4711(e). The court held that "for an out-of-state conviction to be comparable to an offense under the Kansas criminal code, the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime." 307 Kan. at 562. Essentially, "the elements of the out-of-state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced." 307 Kan. at 562.
The Wetrich court emphasized that "the extent to which the federal identical or narrower rule is constitutionally mandated . . . is a question we need not decide today. We can resolve the issue presented here on the basis of statutory interpretation." 307 Kan. at 558. The court found that the meaning of the term "comparable offenses" in K.S.A. 2017 Supp. 21-6811(e)(3) is ambiguous. 307 Kan. at 559-60. Given the ambiguity, the court examined the legislative history of the KSGA. 307 Kan. at 560-62. Based on the purposes and objectives of the sentencing guidelines, the court found that the identical-or-narrower test to determine comparable offenses is consistent with the Legislature's original intent when it passed the KSGA. 307 Kan. at 561-62. The court held that the defendant's prior Missouri burglary conviction could not be scored as a nonperson felony because the Missouri statute for burglary was broader than Kansas' statute. 307 Kan. at 563-64.
In this appeal, the State does not challenge Henderson's claim that the Mississippi burglary statute is broader than Kansas' burglary statute at the time Henderson committed his current crime of conviction. Under the applicable Mississippi statute, burglary is committed by unlawfully entering a dwelling "with intent to commit some crime therein." See Miss. Code Ann. § 97-17-23 (2005). Under the applicable Kansas statute, burglary is committed by unlawfully entering a dwelling "with intent to commit a felony, theft or sexually motivated crime therein." See K.S.A. 2012 Supp. 21-5807(a)(1). Thus, applying Wetrich, Henderson's Mississippi burglary conviction should be classified as a nonperson felony, resulting in a lower sentence in Henderson's current case.
That said, the State argues that our Supreme Court's decision in Wetrich amounted to a "change in the law" that occurred after Henderson's sentence was pronounced on January 7, 2015. As a result, the State argues that Henderson's sentence is not illegal within the meaning of K.S.A. 2018 Supp. 22-3504(3).
This court has addressed the same argument the State is making in this appeal in State v. Smith, 56 Kan.App.2d 343, 430 P.3d 58 (2018), petition for rev. filed September 26, 2018. In Smith, this court held that the Kansas Supreme Court's decision in Wetrich was not a change in the law within the meaning of the 2017 amendment to the definition of an illegal sentence in K.S.A. 2017 Supp., 22-3504(3). Smith, 56 Kan.App.2d 343, Syl. ¶ 2. In reaching this conclusion, the Smith court stated:
"Our Supreme Court's holding in Wetrich is a reinterpretation of an existing statute and not a change in the law within the meaning of the 2017 amendment to the definition of an illegal sentence in K.S.A. 22-3504. Simply put: the KSGA and its reference to the term 'comparable offenses' has not changed since Smith was originally sentenced in 2006. The only thing that may have changed is our Supreme Court's interpretation of the KSGA. But a judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision." 56 Kan.App.2d at 353-54.
We recognize that this court's decision in Smith is not yet final as a petition for review is pending. But we adopt the analysis in Smith and find that our Supreme Court's holding in Wetrich is not a change in the law within the meaning of the 2017 amendment to the definition of an illegal sentence in K.S.A. 2017 Supp. 22-3504(3). Since 1993, the law in Kansas has required a sentencing court to refer to comparable offenses when designating an out-of-state crime as person or nonperson for criminal history purposes. See K.S.A. 1993 Supp. 21-4711(e). This law has not changed after Henderson's sentence was pronounced. Thus, the 2017 amendment to K.S.A. 22-3504 does not stop this court from analyzing whether Henderson's sentence is illegal under the identical-or-narrower rule set out in Wetrich. See State v. Johnson, No. 118, 059, 2019 WL 986207, at *2 (Kan. App. 2018) (unpublished opinion) (adopting Smith's analysis that Wetrich did not change the law), petition for rev. filed March 27, 2019.
Finally, although not cited by either party, we note that in State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019), the Kansas Supreme Court addressed the legality of a defendant's sentence under K.S.A. 22-3504 and found that the legality of a sentence "is fixed at a discrete moment in time-the moment the sentence was pronounced. At that moment, a pronounced sentence is either legal or illegal according to then-existing law." But in further analyzing the legality of a defendant's sentence under K.S.A. 22-3504, the Murdock court also stated:
"There are times, however, when subsequent developments in the law might undermine an earlier merits determination. That is, true changes in the law cannot transform a once legal sentence into an illegal sentence, but developments in the law may shine new light on the original question of whether the sentence was illegal when pronounced. In the latter case, the 'at any time' language of K.S.A. 22-3504(1) permits a party to advance a successive motion to correct an illegal sentence premised on the developments in the law that show the earlier determination was wrong on its merits." 309 Kan. at 592.
Applying our Supreme Court's analysis in Murdock, we categorize the court's holding in Wetrich as a "development" in the law as opposed to a "change" in the law. The holding in Wetrich merely clarified the meaning of "comparable offenses" under K.S.A. 2018 Supp. 21-6811(e) and established that Henderson's sentence was illegal at the moment the sentence was imposed on January 7, 2015, because Henderson's prior Mississippi burglary conviction was improperly classified as a person crime. Under the identical-or-narrower rule for comparable offenses set forth in Wetrich, we conclude that Henderson's 2005 Mississippi burglary conviction is not a comparable offense to the crime of burglary in Kansas at the time Henderson's current crime of conviction was committed. Thus, we vacate Henderson's sentence and remand for resentencing with directions to classify the Mississippi burglary conviction as a nonperson felony.
Sentence vacated and case remanded with directions.