Opinion
No. 110932.
04-10-2015
STATE of Kansas, Appellee, v. Vincent E. JEFFERSON, Appellant.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Heather Cessna, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Vincent Jefferson pled guilty to aggravated burglary. At sentencing, the district court classified Jefferson's 1980 aggravated burglary conviction and his 1980 burglary conviction, both from Reno County, Kansas, as person felonies for criminal history purposes. On appeal, Jefferson argues that the person classification of these prior convictions violated our Supreme Court's holding in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, and also violated the United States Supreme Court's holding in Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). We agree with Jefferson in part and conclude that based upon the holding in Descamps, his 1980 burglary conviction should have been scored as a nonperson felony for criminal history purposes. Thus, we vacate Jefferson's sentence and remand for resentencing using the correct criminal history score.
On May 13, 2013, pursuant to a plea agreement, Jefferson pled guilty to one count of aggravated burglary and the district court ordered a presentence investigation (PSI) report. The PSI report revealed many prior offenses, including a 1980 burglary conviction and a 1980 aggravated burglary conviction, both in Reno County, Kansas. Based on Jefferson's prior convictions, the PSI report calculated his criminal history score as B.
Jefferson filed a motion to challenge the PSI report, disputing the designation of the 1980 burglary conviction as a person felony. He asserted that res judicata prevented the district court from classifying the conviction as a person felony because he had challenged the person classification in a prior case and the court had determined the crime to be a nonperson felony. Jefferson also requested a dispositional and durational sentencing departure, a request in which the State joined pursuant the plea agreement.
Jefferson's sentencing was held on October 9, 2013. At the hearing, defense counsel asserted that Jefferson had objected to the person felony classification of the 1980 burglary conviction in a prior case and the classification in that case ultimately was amended. Defense counsel argued that res judicata prevented relitigation of the judgment. The State, on the other hand, contended that res judicata does not apply to criminal history classification and, in any event, the order from the previous case did not explain the basis for the ruling that the 1980 burglary was a nonperson offense.
The district court reviewed the complaint from the 1980 case, but defense counsel disputed the accuracy of the facts alleged in the complaint. The district judge concluded: “Based upon the court file that was supplied to me—and there's no dispute about the authenticity of these documents—I will find that it was a person felony and the defendant's criminal history score for the purpose of this hearing is a criminal history B.” The district court granted Jefferson's motion for a sentencing departure and sentenced him to 36 months' probation with an underlying sentence of 60 months' imprisonment, rather than the presumptive sentence of 114–120–128 months' imprisonment. Jefferson timely appealed the district court's judgment.
On appeal, Jefferson first contends that the district court erred by classifying his 1980 Kansas burglary and aggravated burglary convictions as person felonies for criminal history purposes based on our Supreme Court's holding in Murdock. Jefferson argues that under the holding in Murdock, all convictions for crimes committed prior to the enactment of the Kansas Sentencing Guidelines Act (KSGA) must be classified as nonperson offenses for criminal history purposes. Next, Jefferson argues that the district court violated his constitutional rights because, in order to classify his 1980 convictions as person felonies for criminal history purposes, the district court engaged in the sort of judicial factfinding prohibited by the United States Supreme Court in Descamps and Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The parties acknowledge that both of these legal issues are unsettled in Kansas and that other cases are pending before the Kansas Supreme Court in which the court will address both issues. We will address Jefferson's claims in reverse order.
Did the District Court Violate Jefferson's Rights under Descamps?
Jefferson argues that the district court violated his constitutional rights under Descamps by classifying his 1980 convictions of burglary and aggravated burglary as person felonies for criminal history purposes. He acknowledges that in district court he only challenged the person classification of his 1980 Reno County burglary conviction. He did not challenge the 1980 Reno County conviction of aggravated burglary. On appeal, Jefferson refers to the two convictions together as the “burglary convictions” and presents a single argument for both convictions. Jefferson's argument rests in large part on K.S.A. 21–4711(d) —now codified at K.S.A.2014 Supp. 21–6811(d) —which instructs sentencing courts on how to determine whether pre-KSGA burglary convictions should be classified as person or nonperson felonies.
By its plain language, however, K.S.A.2014 Supp. 21–6811(d) does not govern the classification of pre-KSGA aggravated burglaries:
“Prior burglary adult convictions and juvenile adjudications will be scored for criminal history purposes as follows:
“(1) As a prior person felony if the prior conviction or adjudication was classified as a burglary as defined in subsection (a) of K.S.A. 21–3715, prior to its repeal, or subsection (a)(1) of K.S.A.2014 Supp. 21–5807, and amendments thereto.
“(2) As a prior nonperson felony if the prior conviction or adjudication was classified as a burglary as defined in subsection (b) or (c) of K.S.A. 21–3715, prior to its repeal, or subsection (a)(2) or (a)(3) of K.S.A.2014 Supp. 21–5807, and amendments thereto.” (Emphasis added.)
K.S.A. 21–3715 prior to its repeal, and now K.S.A.2014 Supp. 21–5807(a), address burglary. Aggravated burglary was criminalized by K.S.A. 21–3716 prior to its repeal and now by K.S.A.2014 Supp. 21–5807(b). Neither statute on aggravated burglary is mentioned in K.S.A.2014 Supp. 21–6811(d). Thus, an argument based upon the application of K.S.A.2014 Supp. 21–6811(d) to the burglary statutes is not germane to the criminal history classification of an aggravated burglary conviction.
Jefferson presents no argument to this court asserting specific error with the district court's classification of his 1980 aggravated burglary conviction as a person felony. An issue not briefed by the appellant is waived and abandoned. State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013). Thus, we will not address Jefferson's argument that the district court violated his constitutional rights under Descamps by classifying his 1980 aggravated burglary conviction as a person felony.
As to Jefferson's claim concerning his 1980 burglary conviction, the State initially argues that Jefferson has failed to preserve this issue for appeal. In the district court, Jefferson asserted that res judicata prevented the district court from classifying the conviction as a person felony because he had challenged the person classification in a prior case and the court had determined the crime to be a nonperson felony. Jefferson has abandoned the res judicata argument on appeal, as it does not appear in his appellate brief. See Boleyn, 297 Kan. at 633 (issue not briefed is deemed waived and abandoned).
Jefferson's claim that the district court violated his constitutional rights under Descamps is being raised for the first time on appeal. He concedes that parties generally may not raise constitutional claims for the first time on appeal but notes that our Supreme Court has recognized exceptions to that rule, including where “consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights.” See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). This court recently held that this exception applies to allow a defendant to argue for the first time on appeal that the district court violated the defendant's constitutional rights under Descamps by classifying a pre-KSGA burglary adjudication as a person felony. See State v. Dickey, 50 Kan.App.2d 468, 474–75, 329 P.3d 1230 (2014), rev. granted October 31, 2014, argued March 6, 2015. Following the precedent in Dickey, we will consider Jefferson's claim even though it is being raised for the first time on appeal.
The State also asserts that Jefferson's Descamps argument is not ripe for review because Jefferson is on probation, and he is not serving a term of imprisonment. Our Supreme Court has described the ripeness requirement as: “[I]ssues must be ripe, having taken fixed and final shape rather than remaining nebulous and contingent.” State ex rel. Morrison v. Sebelius, 285 Kan. 875, 896, 179 P.3d 366 (2008). Without further explanation, the State argues that “[a]ny issue relating to defendant's underlying sentence is ‘hypothetical and abstract’ because defendant may never serve said sentence.”
We disagree with the State's argument that the issue is not ripe for review. The essence of Jefferson's claim is that the district court erred in determining his criminal history. The claimed error directly affects Jefferson's sentence. In order to challenge the legality of his or her sentence, a criminal defendant must file a direct appeal within 14 days after the judgment of the district court. See K.S.A.2014 Supp. 22–3608(c). If Jefferson waited until after his probation was revoked to appeal his sentence, as the State suggests he should, such an appeal would be deemed untimely and an appellate court would lack jurisdiction to review the claim. See State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008) (the filing of a timely notice of appeal is jurisdictional, and if appeal is not taken within the 14–day period fixed by statute, it must be dismissed).
Turning to the merits, Jefferson argues that the district court violated his constitutional rights by classifying his 1980 burglary conviction as a person felony for criminal history purposes. Without engaging in extensive analysis, we note that in Dickey, this court recently held that the district court erred by classifying the defendant's pre-KSGA juvenile adjudication of burglary as a person felony for criminal history purposes because prior to the enactment of the KSGA, the Kansas burglary statute did not distinguish between residential and nonresidential structures. See 50 Kan.App.2d at 488. The Dickey court reasoned that by classifying the defendant's pre-KSGA adjudication as a residential burglary as opposed to a nonresidential burglary, the sentencing court engaged in the sort of judicial factfinding prohibited by the United States Supreme Court in Decamps and Apprendi. See 50 Kan.App.2d at 480–90. Although the decision in Dickey is not final, we adopt its reasoning as applied to Jefferson's case. Thus, we conclude the district court erred by classifying Jefferson's 1980 burglary conviction as a person felony for criminal history purposes. The case must be remanded so that the district court can resentence Jefferson applying the correct criminal history score.
Did the District Court Violate the Holding in Murdock?
Jefferson also contends that the district court erred by classifying his 1980 Kansas burglary and aggravated burglary convictions as person felonies for criminal history purposes based on our Supreme Court's holding in Murdock. In Murdock, 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. Jefferson'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.
In State v. Waggoner, 51 Kan.App.2d 144, Syl. ¶ 1, 343 P.3d 530 (2015), 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 Jefferson's case. Thus, we conclude that the district court did not violate the holding in Murdock by classifying Jefferson's 1980 Kansas burglary and aggravated burglary convictions as person felonies for criminal history purposes.
Affirmed in part, vacated in part, and remanded with directions.
ATCHESON, J., concurring in part and dissenting in part.
Based on Descamps v. United States, 570 U.S., 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), I join in the majority's treatment of Defendant Vincent E. Jefferson's past burglary conviction in determining his criminal history. I respectfully dissent from the majority's decision to consider his preguideline, in-state conviction for aggravated burglary as a person felony for criminal history purposes. I do so for the reasons outlined in my separate opinion in State v. Smith, No. 109,165, 2015 WL 1122951, at *24–29 (Kan.App.2015) (unpublished opinion): The majority decision in State v. Murdock, 299 Kan. 312, 319, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, requires that convictions for comparable in-state and out-of-state crimes committed before the guidelines went into effect be scored as nonperson felonies and the failure to treat those convictions the same for criminal history purposes violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.