Opinion
No. 105,709.
2012-05-18
STATE of Kansas, Appellee, v. Eugene LaFAVE, Appellant.
Appeal from Reno District Court; Joseph L. McCarville, III, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Joseph L. McCarville, III, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., Hill, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Eugene LaFave entered a plea of no contest and was convicted of possession of methamphetamine in violation of K.S.A. 65–4160, a level 4 nonperson drug felony.
On appeal, he challenges the district court's determination of his criminal history score.
He first argues the district court erred in classifying a prior Colorado conviction as analogous to the Kansas battery offense. He further contends for the first time on appeal that it was erroneous for the district court to classify a previous Colorado charge of “domestic violence” as a prior crime when it is not a substantive crime under Colorado law. Facts and legal proceedings
On October 20, 2010, in Reno County District Court, LaFave entered a plea of no contest to possession of methamphetamine. The State supplied a statement of facts and LaFave was questioned about the plea and subsequently found guilty. Sentencing was set for early December.
The presentence investigation (PSI) report was filed in late November and gave LaFave a criminal history score of C based on one prior person felony, two prior nonperson felonies, three person misdemeanors, and two nonperson misdemeanors. The sentencing hearing was postponed when the State questioned why the three person misdemeanors had not been converted to a person felony.
An amended PSI report was filed which converted the three person misdemeanors to an additional person felony. This changed LaFave's criminal history score to B. Prior to sentencing, LaFave filed an objection to the criminal history report and raised two issues. He objected to the third and fourth convictions saying he was not represented by counsel nor did he waive his right to counsel in the matter. He also argued that the Colorado conviction for harassment was incorrectly classified as a class B person misdemeanor battery under K.S.A. 21–3412 and should have been classified as a class C person misdemeanor assault under K.S.A. 21–3408.
At the sentencing hearing, the State argued that the language of the Colorado statute was sufficiently identical to K.S.A. 21–3412 to support the conversion in LaFave's criminal history. LaFave's counsel pointed out that in the first PSI report, the Colorado conviction was classified as comparable to a conviction under K.S.A. 21–3408 for assault and argued that it should not have been changed in the second PSI report. The district court examined both statutes and found the language in the Colorado statute was sufficiently similar to the Kansas statute for battery. It therefore found that LaFave's criminal score of B in the second PSI report was correct. The district court denied LaFave's motion for departure and sentenced him to 34 months in prison with a postrelease of 12 months.
LaFave has appealed the sentencing.
LaFave's first issue on appeal is the district court erred when it classified the prior Colorado conviction for harassment as a misdemeanor person battery offense under Kansas law. He claims that Kansas had no offense comparable to the Colorado conviction for harassment and, therefore, it should have been characterized as a nonperson conviction and would have made his criminal history score C rather than B.
The Kansas Sentencing Guidelines Act provides the method for determining a defendant's criminal history score. See K.S.A. 21–4710; K.S.A. 21–4711. Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v.. Jolly, 291 Kan. 842, 845–46, 249 P.3d 421 (2011).
The classification of out-of-state prior convictions in scoring criminal history is governed by K.S.A. 21–4711(e), which reads in relevant part:
“An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime.”
In determining criminal history, the offenses do not need to be identical, only comparable to the out-of-state offense. State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003). The offenses need to be similar in nature and cover similar types of criminal conduct. State v. Barajas, 43 Kan.App.2d 639, 230 P.3d 784 (2010); State v. Schultz, 22 Kan.App.2d 60, 62, 911 P.2d 1119 (1996).
LaFave was convicted in Colorado of harassment under Colo.Rev.Stat. § 18–9–111(1)(a) which at the time of the conviction, read: “(1) A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she: ... (a) Strikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact;....”
The district court found the Colorado harassment statute sufficiently similar to the Kansas statute for battery, K.S.A. 21–3412(a)(2) which reads: “(a) Battery is: ... (2) intentionally causing physical contact with another person when done in a rude, insulting or angry manner.”
The district court compared the two statutes and reasoned:
“If you touch a person in a rude or insulting or angry manner, that's battery under Kansas law. In Colorado you violate the statute by shoving, striking, kicking, or physical contact with intent to harass or alarm that person. That seems to be the same as rude, insulting, or angry ... certainly if anything Mr. LaFave could have done to be harassing, annoying or alarming, would have been either rude, insulting or angry. And anything he would have done that would have sufficed to show that he struck, shoved, kicked, or touched the person or subjected the person to contact would be sufficient to show under Kansas (law) that he touched or applied force to a person. So it's a simple touch all Kansas requires.”
LaFave argues the two statutes are not comparable because the Kansas statute proscribes the manner of the touching (when done in a rude, insulting, or angry manner) while the Colorado statute only prohibits physical contact with the “intent to harass, annoy, or alarm.” He argues the Colorado harassment statute prohibits a type of conduct that is not necessarily prohibited by the Kansas battery statute because an offender in Colorado may touch with the intent to alarm, but it may not be battery in Kansas because it may not be considered rude, insulting, or angry.
LaFave's argument is not convincing. The two statutes do not have to be identical, only comparable. Both of the statutes require some kind of physical contact. In Kansas, a mere touch is enough; in the Colorado offense, it must be striking, shoving, kicking, or otherwise touching a person or subjecting them to physical contact. And, anything LaFave did in Colorado that was considered to be done with the intent to harass, annoy, or alarm would be considered rude, insulting, or done in an angry manner under the Kansas battery statute. The two statutes are clearly similar in nature and cover similar types of criminal conduct as required under Barajas. The district court's reasoning was sound. The statutes are similar enough to support the district court's determination that the conduct LaFave was convicted of under the Colorado statute for harassment would be considered a battery under Kansas law.
For the first time on appeal, LaFave argues the district court erred in including the Colorado offense of “domestic violence” in his criminal history because it is not actually a substantive crime in Colorado, but rather a sentence enhancer. He claims this error caused his criminal history score to increase from C to B and resulted in an illegal sentence.
Generally, an issue not raised before the trial court cannot be raised on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). But, LaFave argues that the issue is reviewable because the sentence is illegal and, under K.S.A. 22–3504(1), this court has authority to correct an illegal sentence at any time. An “illegal sentence,” as contemplated by K.S.A. 22–3504(1), is a sentence imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in the character or the term of authorized punishment; or a sentence that is ambiguous with respect to the time and manner in which it is to be served. State v. LaBelle, 290 Kan. 529, 532,231 P.3d 1065(2010).
In State v. Russell, 36 Kan.App.2d 396, 399, 138 P.3d 1289 (2006), a panel of this court determined that when the parties have not stipulated to the criminal history, an error in determining criminal history can be subsequently corrected by the district court.
“The sentencing guidelines are based on two controlling factors: crime severity and criminal history of the defendant. Consequently, if either the crime severity level or the criminal history score are in error, a party can challenge a sentence as being illegal under K.S.A. 22–3504. [Citation omitted.] ‘By definition, an illegal sentence encompasses a sentence to which the district court assigned an incorrect criminal history to a criminal defendant.’ “ 36 Kan.App.2d at 399 (citing State v. Donaldson, 35 Kan.App.2d 540, Syl. ¶ 2, 133 P.3d 154 [2006] ).
LaFave acknowledges that he did not raise the issue involving the domestic violence conviction at the district court level. He correctly points out that he is not challenging the existence of the violation, but the classification of the domestic disturbance. “No party can stipulate to an incorrect application of the law.” State v. Donaldson, 35 Kan.App.2d 540, 544, 133 P.3d 154 (2006) (citing Bright v. LSI Corp., 254 Kan. 853, 859, 869 P.2d 686 [1994] ). LaFave's issue is properly before this court because it is a purely legal question and under Donaldson, LaFave could not have stipulated to an incorrect application of the law in this case, his incorrect criminal history.
According to the PSI report, as well as the above conviction for harassment, LaFave also violated Colo.Rev.Stat. § 18–6–801 for domestic violence. The Colorado statute is entitled, “Domestic violence—sentencing” and reads in relevant part:
“(l)(a) In addition to any sentence that is imposed upon a person for violation of any criminal law under this title, any person who is convicted of any crime, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18–6–800.3(1), or any crime against property, whether or not such crime is a felony, when such crime is used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship shall be ordered to complete a treatment program and a treatment evaluation that conform with the standards adopted by the domestic violence offender management board as required by section 16–11.8–103(4), C.R .S.” Colo.Rev.Stat. § 18–6–801.
In People v. Disher, 224 P.3d 254 (Colo.2010), the Colorado Supreme Court was required to determine what constituted an “intimate relationship” as defined in the domestic violence statute. In its analysis, the court noted:
“Under Colorado's domestic violence statute, domestic violence is not its own separate crime. When the elements of the statute are met, ajudge may find that a crime committed by a defendant constitutes domestic violence. § 18–6–801, C.R.S. (2009). A finding of domestic violence leads to a sentence enhancer requiring the defendant to complete a treatment evaluation and a treatment program in addition to serving whatever sentence the defendant receives for the underlying crime.” 224 P.3d at 256. (Emphasis added.)
Based on the clear statement in Disher, the Colorado domestic violence violation is not a separate crime but only enhances the sentence. K.S.A. 21–4711(e) allows only out-of-state crimes to be considered in scoring criminal history. As a matter of law, the district court erred in classifying the Colorado finding of domestic violence as a prior crime.
The district court used the domestic violence distinction as one of the three prior person misdemeanor offenses to make a one person felony. This aggregation caused LaFave's criminal history score to be increased from C to B. This was a legal error which subjected LaFave to a higher sentencing range and, therefore, an illegal sentence.
LaFave's sentence is vacated, and the case is remanded to correct the criminal history error and enter a lawful sentence.
Affirmed in part, but the sentence is vacated and the case remanded for resentencing with the correct criminal history of C.