Opinion
110,354.
04-10-2015
STATE of Kansas, Appellee, v. Gregory Wayne HUGGINS, Appellant.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., BRUNS, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Gregory Wayne Huggins appeals from the sentence imposed after he pled no contest to attempted traffic in contraband in a correctional institution. Relying on State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by order September 19, 2014, Huggins asserts that the district court violated his constitutional rights by classifying a prior 1989 misdemeanor Kansas conviction as a person offense for purposes of calculating his criminal history score. That classification led to a criminal history score of C and resulted in an enhanced sentence.
Prior to Huggins' sentencing, the presentence investigation (PSI) report showed he had a criminal history score of C. This score was based in part on the aggregation of three person misdemeanors into a felony, one of the misdemeanors being a 1989 Kansas conviction for furnishing intoxicants to a minor. With this criminal history score, the guideline sentence range for his crimes was 25–27–29 months' imprisonment. Huggins did not object to his criminal history or to his criminal history score. The district court sentenced Huggins to 25 months in prison. Huggins appeals his sentence.
Huggins asserts that the district court erred when it determined his criminal history score was C based in part on his prior 1989 misdemeanor conviction for furnishing intoxicants to a minor, a person misdemeanor. He argues that his PSI worksheet was incorrect because Kansas did not classify crimes as person or nonperson until the adoption of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq. , in 1993. Thus, he argues that his pre–1993 conviction should have been considered an unclassified nonperson misdemeanor and should not be aggregated for criminal history purposes.
Huggins asserts that his sentence is illegal because it is based on an incorrect criminal history score. Under the KSGA, a sentence is calculated based on the combination of the crime severity level and the criminal history score. An error in the defendant's criminal history score renders the sentence illegal. See State v. Donaldson, 35 Kan.App.2d 540, 541, 133 P.3d 154 (2006) ; State v. Lackey, 22 Kan.App.2d 585, 586, 920 P.2d 470 (1996). K.S.A. 22–3504(1) provides that we may correct an illegal sentence at any time. Huggins did not object to his criminal history score at the district court, but we may entertain an allegation of an illegal sentence for the first time on appeal. State v. Kelly, 298 Kan. 965, 975–76, 318 P.3d 987 (2014).
The right to appeal from the district court's decision on this issue is specifically provided for in K.S.A.2014 Supp. 21–6820(e)(3), which provides this court with jurisdiction to consider a defendant's claim that the sentencing court erred “in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes.” Resolving the issue requires interpretation of the KSGA, a question of law over which our review is unlimited. Murdock, 299 Kan. at 314.
Prior to the adoption of the KSGA in 1993, Kansas law did not differentiate between nonperson and person crimes. Under the KSGA, the criminal history score is calculated in part by distinguishing between person and nonperson crimes. Person crimes are generally weighted more heavily than nonperson crimes. See K.S.A.2014 Supp. 21–6809. In Murdock, our Supreme Court held that because Kansas did not begin classifying crimes as person or nonperson felonies until the adoption of the KSGA in 1993, all out-of-state convictions committed prior to the enactment of the KSGA must be classified as nonperson offenses for criminal history purposes. 299 Kan. at 319.
Huggins argues that the holding in Murdock applies to in-state convictions as well. He argues the sentencing court should have classified his 1989 misdemeanor conviction as a nonperson crime. The State disagrees, contending that Murdock was wrongly decided and further asserting that its holding does not extend to in-state convictions.
We note that after the parties filed briefs in this case, our Supreme Court modified its original opinion in Murdock and restricted its holding to out-of-state convictions: “ ‘ “We recognize this rule results in the classification of all out-of-state pre–1993 crimes as nonperson felonies—an outcome the State characterizes as unreasonable.’ “
Based on this modification of Murdock, it appears that the Murdock court was restricting its holding to out-of-state convictions. The holding in Murdock is tied to the interpretation of K.S.A. 21–4711(c)(2), which is the specific provision governing the classification of out-of-state crimes. Other panels of this court have also found that Murdock is restricted to the classification of out-of-state crimes. See State v. Waggoner, 51 Kan.App.2d ––––, 343 P.3d 530, 531 (2015) ; State v. Dickey, 50 Kan.App.2d 468, 480, 329 P.3d 1230 (2014) (the holding in Murdock is “firmly tethered” to K.S.A. 21–4711 [e] and thus limited to out-of-state convictions), rev. granted October 31, 2014; Baker v. State, No. 110,874, 2014 WL 5616606, at *11 (Kan.App.2014) (unpublished opinion), petition for rev. filed November 24, 2014.
However, in State v. Piercy, No. 110,526, 2014 WL 7152316, at *13 (Kan.App.2014) (unpublished decision), a panel of this court indicated that it is unclear whether Murdock intended to apply to pre–1993 in-state convictions. And even though the Waggoner court held that the Murdock decision applied only to out-of-state convictions, it noted the same confusion with the Murdock decision as to what cases were being overruled. Waggoner, 2015 WL 402760, at *6–7.
We recognize the same concerns outlined by panels of this court in Piercy and Waggoner. But based on our Supreme Court's modification of the Murdock opinion as applying only to out-of-state convictions, we conclude that our Supreme Court has not yet extended the ruling in Murdock to in-state convictions and that Court of Appeals' caselaw to the contrary has not been specifically overruled. As such, we reject Huggins' claim that the holding in Murdock applies to in-state convictions. Accordingly, the district court did not err in classifying Huggins' previous misdemeanor conviction as a person crime for criminal history purposes.
Affirmed.