Opinion
111,815.
04-24-2015
STATE of Kansas, Appellee, v. Andrew KING, Appellant.
Adam T. Carey, of Graybill & Witcher, L.L.P., of Elkhart, for appellant. Russell W. Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee.
Adam T. Carey, of Graybill & Witcher, L.L.P., of Elkhart, for appellant.
Russell W. Hasenbank, county 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:
Andrew King pled no contest to aggravated burglary, a severity level 5 person felony. King's presentence investigation report revealed he had three domestic battery misdemeanor convictions from 1991 and 1992 and one 2009 criminal threat conviction, a person felony, in his criminal history. The three domestic battery misdemeanors were aggregated into a person felony, giving him a “B” criminal history score. King was sentenced to 128 months in prison. He asserts two claims on appeal, both related to the aggregation of his three misdemeanor domestic battery convictions.
First, he contends that because he was unrepresented by counsel in one of the domestic battery cases, the conviction cannot legally be used for purposes of aggregation and subsequent enhancement of his sentence under the Kansas Sentencing Guidelines Act (KSGA). But even assuming he was not represented, the records he submitted in support of his claim established that he was only assessed a fine and no jail term. An uncounseled misdemeanor conviction that does not result in incarceration may be used in determining a defendant's criminal history under the KSGA. State v. Delacruz, 258 Kan. 129, 135–36, 899 P.2d 1042 (1995). So King's first claim fails.
Next, King argues that pursuant to State v. Murdock, 299 Kan. 312, 319, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, his pre–1993 domestic battery convictions should be classified as nonperson misdemeanors because at the time of his conviction they were unclassified. But adopting the analysis used by another panel of this court State v. Waggoner, 51 Kan.App.2d 144, 343 P.3d 530, (2015), petition for rev. filed February 18, 2015, we find that King's pre–1993 domestic battery convictions were properly classified as person misdemeanors.
Factual and Procedural History
King was convicted of aggravated burglary, a severity level 5 person felony, after entering a nolo contendre plea. The facts surrounding King's conviction are not relevant for this appeal. Prior to sentencing, a presentence investigation (PSI) was conducted. The PSI report listed four prior convictions for King—three misdemeanor convictions of domestic battery and one conviction of criminal threat, a severity level 9 person felony. The three domestic battery misdemeanors occurred in 1991 and 1992 and the criminal threat conviction was from 2009. Pursuant to K.S.A. 21–4711(a) (now K.S.A.2014 Supp. 21–6811 [a] ), King's three misdemeanor convictions aggregated to count as one person felony for purposes of calculating criminal history score. The two person felonies in King's criminal history resulted in King receiving a “B” criminal history score.
Prior to sentencing, King moved to withdraw his plea. The district court denied this motion and proceeded to sentence King. The court asked King at the sentencing hearing if he agreed with the criminal history worksheet in his PSI. King responded that he did agree with the criminal history score. The district court then sentenced King to the aggravated sentence of 128 months in prison.
King appealed his sentence arguing the district court erred in denying his motion to withdraw his no contest plea and that the district court erred by using his criminal history to enhance his sentence without requiring a jury to prove it beyond a reasonable doubt. In State v. King, No. 107,887, 2013 WL 1010592 (Kan.App.2013) (unpublished opinion), rev. denied 297 Kan. 1252 (2013), this court affirmed the district court on both issues.
On January 30, 2013—before this court issued its opinion in his direct appeal—King filed a pro se motion to correct an illegal sentence under K.S.A. 22–3504. Approximately a month later, King filed a pro se supplemental motion for correction of an illegal sentence. In both motions, King alleged his criminal history score had been improperly calculated for various reasons, none of which were alleged in his direct appeal. At the same time, King filed a motion for appointment of counsel. The district court denied all of King's pending motions, finding he had “neither a request for which he is entitled to relief nor a request for which relief can be granted” and held King had made no factual allegations that the court can find “could possibly lead to relief.”
More than 6 months later, King filed a pro se request for an evidentiary hearing, essentially reasserting the arguments he made in his earlier motions to correct an illegal sentence. In his motion, King argued again that his criminal history score was improperly calculated because, among other reasons, one of his misdemeanor domestic battery convictions was uncounseled and was therefore constitutionally invalid and should not be used to aggregate his misdemeanors into a person felony. Attached to his motion, King included a print-out from the Municipal Court of the City of Liberal, Kansas, that provided information regarding his 1992 domestic battery conviction. The district court again denied King's motion and noted that any future motions would be returned unfiled. King timely appealed the denial of his motion for an evidentiary hearing. During the pendency of his appeal, the Kansas Supreme Court issued its decision in State v. Murdock. King filed another pro se motion to correct an illegal sentence, specifically asserting his pre-KSGA misdemeanors were improperly classified pursuant to Murdock. The district court took no action on that motion.
Analysis
King may challenge the calculation of his criminal history score .
The State argues King waived his right to appeal his criminal history score because he agreed to the accuracy of his history score during the sentencing hearing and because he failed to raise the issue on direct appeal.
Generally, a defendant must raise all available issues on direct appeal. See State v. Neer, 247 Kan. 137, 140–41, 795 P.2d 362 (1990). When an appeal is taken from the sentence imposed and/or conviction, “the judgment of the reviewing court is res judicata as to all issues actually raised, and those issues that could have been presented, but were not presented, are deemed waived.” 247 Kan. at 140–41.
Pursuant to K.S.A. 22–3504(1), however, a court “may correct an illegal sentence at any time.” The Kansas Supreme Court has defined an illegal sentence as one “ ‘imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served.’ “ State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011).
In Neal, the defendant filed a motion to correct an illegal sentence under K.S.A. 22–3504 claiming one of his misdemeanor convictions was constitutionally invalid and therefore could not be used in aggregating his misdemeanors into a person felony. The K.S.A. 22–3504 motion was filed after the defendant's direct appeal was final. Although the defendant's direct appeal dealt with claimed errors in his criminal history score, the aggregation issue was not asserted. The Kansas Supreme Court held the aggregation issue was an illegal sentence challenge that could be brought in a K .S.A. 22–3504 motion and that even though he did not raise the issue on direct appeal, a motion to correct illegal sentence “is not subject to [the] general rule that a defendant must raise all available issues on direct appeal.” 292 Kan. at 631.
Additionally, a panel of this court recently dealt with this issue under the “invited error doctrine.” See State v. Ruiz, 51 Kan.App.2d 212, 343 P.3d 544 (2015). In Ruiz, the defendant challenged his criminal history score as illegal under Murdock. The State argued the defendant invited any error concerning his criminal history score calculation by stipulating to the existence of his criminal history at the sentencing hearing. In addressing the invited error doctrine, this court distinguished between challenges to the factual existence of convictions and challenges to the legal effect of the criminal history score. Ruiz, 51 Kan.App.2d at 231–32. This court held that a stipulation to the existence of criminal convictions would bar future appeals on that matter under the invited error doctrine, but a stipulation did not bar fixture challenges to the legal effect of the criminal history calculation. This court determined that Ruiz was not challenging the factual existence of his prior conviction, but rather the effect the classification of those convictions had on the accuracy of his criminal history score. This court cited Neal, finding when a criminal history score is incorrect, the resulting sentence is illegal and is subject to K.S.A. 22–3504. Ruiz, 51 Kan.App.2d at 232–33. We agree with and adopt the panel's analysis in Ruiz.
In the present case, King's direct appeal concerned the denial of his motion to withdraw his plea and the issue of whether his criminal history score could be used to enhance his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). His K.S.A. 22–3504 motion deals with the exact issue raised in Neal, whether an uncounseled misdemeanor can be used to aggregate his misdemeanor convictions into a person felony for criminal history purposes. The issues in his collateral appeal are not the same as his direct appeal and therefore are not barred by res judicata.
The State attempts to distinguish King's case from Neal asserting King did not object to his criminal history score at the sentencing hearing and in Neal, “ ‘counsel expressed concern that the presentence investigation (PSI) report showed his criminal history score to be worse than what she and the prosecutor had discussed.’ “ The State contends that because Neal objected to his criminal history score, he preserved the issue for appeal. The State, however, omits the further discussion in Neal where the court pointed out that after the initial challenge to the criminal history score, Neal was granted a 20–day stay to further investigate his criminal history, and afterward did not lodge any formal objection to his criminal history or PSI score. See 292 Kan. at 626–27. Accordingly, Neal is almost directly on point in King's case.
Based on the Kansas Supreme Court precedent in Neal and the analysis we adopt from this court's recent decision in Ruiz, King did not waive his right to appeal the calculation of his criminal history score under a K.S.A. 22–3504 motion. In Neal, the Supreme Court granted review on an issue almost identical to the one at issue in the present case. King's challenge deals directly with the legal effect of the calculation of his criminal history score, not the factual existence of his past convictions. Accordingly, we will address the merits of King's K.S.A. 22–3504 motion.
The district court did not err when it denied King's request for an evidentiary hearing on his motion to correct an illegal sentence.
King argues the district court erred in denying his request for an evidentiary hearing on his motion to correct an illegal sentence.
Under K.S.A. 22–3504, the court may correct an illegal sentence at any time and the defendant “shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence.” K.S.A. 22–3504(1). The Kansas Supreme Court has held the filing of a motion to correct an illegal sentence does not automatically require the district court to conduct a full evidentiary hearing or appoint the defendant counsel. State v. Pennington, 288 Kan. 599, 601, 205 P.3d 741 (2009). The district court can summarily deny the motion and decline to hold a hearing or appoint counsel if a preliminary examination of the “ ‘ “motions, files, and records of the case conclusively show the defendant is not entitled to relief.” ‘ “ 288 Kan. at 601.
This court must review the issue de novo and determine whether the district court erred in determining King's motion, records, and files conclusively show he is entitled to no relief. See Neal, 292 Kan. at 629.
In his request for an evidentiary hearing—which also operated as a motion to correct an illegal sentence—King argued one of his three misdemeanor domestic battery convictions was uncounseled and therefore was constitutionally invalid. He asserts because one of the three misdemeanor convictions was invalid, his misdemeanor convictions should not have been aggregated into a person felony for criminal history purposes. King attached to his motion a print-out from the Municipal Court of the City of Liberal, Kansas, that documents his 1992 domestic battery conviction. The district court summarily denied King's motion, holding King had made “neither a request for which he is entitled to relief nor a request for which relief can be granted” and was therefore not entitled to a hearing.
An uncounseled misdemeanor is constitutionally invalid if the offender is sentenced to jail time or probation. State v. Youngblood, 288 Kan. 659, Syl. ¶ 2, 206 P.3d 518 (2009) (“A person accused of a misdemeanor has a Sixth Amendment right to counsel if the sentence to be imposed upon conviction includes a term of imprisonment, even if the jail time is suspended or conditioned upon a term of probation. The right to counsel arises at the stage of the proceedings where guilt is adjudicated, eligibility for imprisonment is established, and the prison sentence is determined.”). In Youngblood, the Kansas Supreme Court held that an uncounseled misdemeanor obtained in violation of the Sixth Amendment right to counsel may not be used for sentence enhancement in a subsequent criminal proceeding. 288 Kan. at 670.
But precedent from both the United States Supreme Court in Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), and the Kansas Supreme Court in Delacruz, make it clear that
“the use of an uncounseled misdemeanor conviction that does not result in incarceration may be used in determining a defendant's criminal history under the Kansas Sentencing Guidelines even though it has the effect of enhancing his or her sentence under the guidelines. [Citation omitted.]” 258 Kan. at 135–36.
In a collateral challenge, the defendant has the burden of proving the constitutional validity of a prior conviction used to enhance his sentence. See State v. Jones, 272 Kan. 674, 681, 35 P.3d 887 (2001). The only evidence presented by King is the document from the Liberal Municipal Court. Next to “DISPOSITION” is “PAYP”, which apparently means payment plan. The form indicates King was assessed a fine of $76 and $15 in court costs for a total of $91. He was to pay half of the fine March 26, 1992, and the balance by April 9, 1992, which he did. There is no mention of the imposition of a jail term. In King's pro se request for an evidentiary hearing, he does make a conclusory, unsworn statement that he was incarcerated, but the attached document does not appear to support that claim.
In Neal, the Kansas Supreme Court was faced with determining whether the district court erred in summarily denying the defendant's motion to correct an illegal sentence. The district court did not hold an evidentiary hearing on the defendant's allegation that two of his misdemeanor battery convictions were uncounseled and should not have been used to aggregate his misdemeanor convictions into a person felony. The Kansas Supreme Court remanded the case back to the district court to hold an evidentiary hearing on the motion. 292 Kan. at 640. In reaching its decision, the Supreme Court found that the defendant had the burden to prove his misdemeanor convictions were constitutionally invalid, but it could not conclude whether he had met this burden because the summary dismissal of the motion “significantly reduced his ability to do so.” 292 Kan. at 640. The Supreme Court distinguished the Neal case from other similar cases, finding the defendant had provided evidence to prove his misdemeanor convictions were uncounseled in the form of his sworn statement in his motion along with the disposition sheets from the misdemeanor convictions. 292 Kan. at 627. The disposition sheets were inconclusive regarding whether the defendant was counseled, and the Supreme Court held the district court should have conducted an evidentiary hearing to allow the defendant an opportunity to bear his burden of proof. 292 Kan. at 634 (comparing State v. Jones, 272 Kan. 674, 35 P.3d 887 [2001] [defendant offered no evidence to support contention that he was not represented by counsel in previous convictions used to enhance sentence for present convictions; failed to meet burden of proof and his denial of his motion to correct illegal sentence after hearing was affirmed]; State v. Patterson, 262 Kan. 481, 939 P.2d 909 [1997] [motion to correct illegal sentence contained no evidentiary basis, only conclusory contentions; defendant failed to meet burden of proof and thus district court did not err in denying motion without hearing] ).
Here, King alleged his 1992 domestic battery conviction was uncounseled. He provided a copy of the docket report from the Municipal Court of the City of Liberal, Kansas, that provides information on the domestic battery conviction. Although the document is inconclusive about whether he was represented by counsel or waived counsel, the document does indicate King was given only a fine and King presents no evidence to the contrary other than his conclusory, unsworn statement. So even assuming his 1992 conviction was uncounseled, an uncounseled misdemeanor conviction that does not result in incarceration may be used in determining a defendant's criminal history under the KSGA. Accordingly, we find that based upon the records and documents presented by King he failed to meet his burden of proof that he was entitled to counsel in the 1992 case. Consequently, the district court did not err when it denied King's request for an evidentiary hearing on his unsubstantiated motion to correct an illegal sentence.
King's pre–1993 misdemeanor convictions were not improperly aggregated and scored as a person felony.
King argues his sentence is illegal because his pre-KSGA person misdemeanor convictions were aggregated into a person felony. He argues pursuant to State v. Murdock, these convictions should be classified as nonperson misdemeanors because at the time of his conviction they were unclassified.
It should be noted that King did not raise this issue in his motion to the district court. The district court denied his request for an evidentiary hearing/motion to correct an illegal sentence well before the Murdock decision was announced. In its denial of the motion, the district court noted that all future motions of the type would be returned to King unfiled. King timely appealed that denial. While his appeal was pending, Murdock was decided. King filed a pro se motion in the district court to correct an illegal sentence under Murdock. The district court took no action on that motion. King was appointed counsel for his appeal, and counsel has raised the Murdock issue in the brief.
In Murdock, the Kansas Supreme Court held that all pre-KSGA out-of-state convictions must be scored as nonperson offenses because the comparable pre-KSGA Kansas statues did not classify convictions as person or nonperson. 299 Kan. at 319. The Supreme Court limited this ruling to only apply to pre-KSGA out-of-state convictions and has not extended it to apply to in-state pre-KSGA convictions. 299 Kan. at 319 (“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.”).
A panel of this court followed the Murdock dissenters' direction and held preKSGA in-state convictions can be classified as person crimes. See Waggoner, 51 Kan.App.2d 144. This court held the statute at the time of convictions should be compared to the current statute and then classified as person or nonperson respectively. 51 Kan.App.2d at 157. We agree with and adopt the Waggoner panel's analysis. To further bolster the conclusion that both pre- and post1993 in-state battery convictions should be classified person crimes in Kansas, another panel of this court, in an unpublished opinion, noted that the legislature itself has designated battery as a person crime since at least 1969 when the legislature itself, not the Office of Revisor of Statutes, specifically adopted headings to sections of the criminal statutes as crimes against persons or crimes against property. Battery was always in the crimes against persons section. See State v. Piercy, No. 110,526, 2014 WL 7152316, at *13 (Kan.App.2014) (unpublished opinion), petition for rev. filed January 9, 2015. In fact, it is hard to imagine a world in which battery, the unlawful touching of another human being, would not be designated a crime against persons.
We pause to note that the law in this area, although static for many years, is now developing rapidly. The most recent development—direct and retroactive action by the Kansas Legislature—may put this issue to rest.
In March 2015, the Kansas Legislature adopted and the Governor signed House Bill 2053. The amendments became effective April 2, 2015. 34 Kan. Reg. 266 (2015). The bill amends K.S.A.2014 Supp. 21–6810 and provides that both pre–1993 felonies and misdemeanors “shall be scored as a person or nonperson crime using a comparable offense under the Kansas criminal code in effect on the date the current crime of conviction was committed. ” 34 Kan. Reg. 266 (2015). In addition, it informs us that “amendments made to this section by this act are procedural in nature and shall be construed and applied retroactively. ” 34 Kan. Reg. 266 (2015). Consequently, assuming the statutory changes are in fact retroactive—and we reach no decision one way or the other here—even if we agreed with King's position, we would not be inclined to reverse and remand for a new sentencing where the district court would statutorily be required to follow the same process that it followed here and aggregate the three misdemeanor battery charges as person misdemeanors. But that argument will have to be addressed another day when the issue of retroactivity of the recent amendments is fully briefed.
Affirmed.