Opinion
No. 107,862.
2013-04-5
STATE of Kansas, Appellee, v. Weylin T. ROSE, Appellant.
Appeal from Sedgwick District Court; Douglas R. Roth, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Douglas R. Roth, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Weylin T. Rose pled no contest to one count of possession of cocaine. The trial court granted Rose a downward dispositional departure, sentencing him to probation with an underlying prison sentence of 30 months. Rose later violated his probation by testing positive for cocaine. The trial court revoked his probation and ordered him to serve his underlying sentence. After Rose was ordered to serve his underlying sentence, he moved pro se to correct an illegal sentence. Rose's motion argued that his prior burglary conviction from Missouri should have been scored as a nonperson felony instead of a person felony for criminal history purposes. The trial court denied Rose's motion. On appeal, Rose makes the same argument, i.e., that his Missouri conviction should not have been scored as a person felony on his presentence investigation report (PSI). We disagree. Accordingly, we affirm.
Rose entered a plea of no contest to one count of possession of cocaine. After Rose entered his plea, a PSI was completed, which indicated that he had a criminal history score of C. Rose's case proceeded to sentencing. At sentencing, the trial court, the State, Rose, and his counsel all discussed his criminal history score. The parties agreed that Rose's criminal history score was a C. The following exchange occurred between the parties:
“THE COURT: ... Presentence investigation was conducted. PSI report, including a criminal history worksheet, has been prepared and has counsel for both sides and the defendant had an opportunity to review those documents and are there any objections to any of the information contained in the documents, including any of the entries in the criminal history worksheet?
“[THE STATE]: Judge, I have had an opportunity to review them, I have no objections.
....
“[DEFENSE COUNSEL]: Yes, Mr. Rose has had an opportunity to review his criminal history and he has no objection to any of the entries.
“THE COURT: Is that correct sir?
“[THE DEFENDANT]: Yes Sir.
“THE COURT: Okay. The presentence investigation and the criminal history worksheet indicate that the defendant is a criminal history C. Based on the criminal history worksheet, the PSI, statements of counsel and the defendant, I will make a finding it is a criminal history C.”
At the conclusion of the sentencing hearing, Rose was granted a downward dispositional departure and sentenced to probation, with an underlying prison sentence of 30 months. Later, Rose violated his probation in part by testing positive for cocaine. The trial court revoked his probation and ordered him to serve his underlying sentence.
Later, Rose filed a pro se motion to correct an illegal sentence. Rose's motion argued that his prior burglary conviction from Missouri should have been scored as a nonperson felony instead of a person felony for criminal history purposes. The trial court summarily denied Rose's motion, finding the following:
“Denied. The PSI report criminal history worksheet and score was filed 9–1–09 and received by the court on that date, including worksheet. ‘Date of worksheet’ is apparent typo. [Rose] did not object to any entries or criminal history classification prior to or at sentencing. [Rose] now claims burglary of an ‘inhabitual building’ is a non person conviction. ‘Inhabited means occupied; therefore is a person felony conviction. [Rose's] motion denied [because] (1) is without merit, (2) failure to object to history or score at or prior to sentencing or at P.V. hearing upon revocation.”
Did the trial court err in calculating Rose's criminal history score when it classified his out-of-state burglary conviction as a person felony?
Rose's sole argument on appeal is that one of his Missouri convictions should not have been scored as a person felony on his PSI. K.S.A. 21–4721(e)(3) allows an appellate court to review a claim that the sentencing court improperly classified the severity level of a defendant's prior conviction for criminal history purposes. In addition, K.S.A. 21–4715(b) and (c) describe the State's requirement to satisfy the burden of proof for an offender's criminal history and the process the offender must take if he or she disputes that criminal history. K.S.A. 21–4715(b) states that “except to the extent disputed in accordance with subsection (c), the summary of the offender's criminal history prepared for the court by the state shall satisfy the state's burden of proof regarding an offender's criminal history.” K.S.A. 21–4715(c) states the following:
“Upon receipt of the criminal history worksheet prepared for the court, the offender shall immediately notify the district attorney and the court with written notice of any error in the proposed criminal history worksheet. Such notice shall specify the exact nature of the alleged error. The state shall have the burden of producing further evidence to satisfy its burden of proof regarding any disputed part, or parts, of the criminal history and the sentencing judge shall allow the state reasonable time to produce such evidence to establish the disputed portion of the criminal history by a preponderance of the evidence.”
In this case, Rose did not “immediately notify the district attorney and the court with written notice of any error in the proposed criminal history sheet.” K.S.A, 21–4715(c). Nevertheless, Rose contends that his criminal history score should be a G because his Missouri second-degree burglary conviction should have been classified as a nonperson felony. Under Kansas law, “[w]hen calculating a defendant's criminal history that includes out-of-state convictions and juvenile adjudications under K.S.A. 21–4711, the State shall classify the out-of-state crime as a person or nonperson.” State v. Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010). When those crimes are designated as either person or nonperson, “the comparable offenses in Kansas shall be determined as of the date the defendant committed the out-of-state crimes.” Williams, 291 Kan. 554, Syl. ¶ 4.
It should be noted that Kansas courts already have concluded that second-degree burglary in Missouri is analogous to burglary in Kansas under K.S.A. 21–3715. State v. Schultz, 22 Kan.App.2d 60, 62, 911 P.2d 1119 (1996). But simply finding that second-degree burglary in Missouri is analogous to burglary in Kansas does not end the analysis. In 2008, Missouri's second-degree burglary statute—Mo. Rev. Stat. Annot. § 569.170 (1999)—read as follows: “1. A person commits the crime of burglary in the second degree when he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein. 2. Burglary in the second degree is a class C felony.”
Under Mo.Rev.Stat. Annot. § 569.010(2) (1999), “inhabitable structure” includes the following:
“(2) ... a ship, trailer, sleeping car, airplane, or other vehicle or structure:
(a) Where any person lives or carries on business or other calling; or
(b) Where people assemble for purposes of business, government, education, religion, entertainment or public transportation; or
(c) Which is used for overnight accommodation of persons. Any such vehicle or structure is ‘inhabitable’ regardless of whether a person is actually present.”
Thus, second-degree burglary in Missouri can be accomplished by burglarizing a home or a business as the definition of inhabitable includes both. See Schultz, 22 Kan.App.2d at 62. Stated differently, Rose's second-degree burglary could have been a burglary of a dwelling or a nondwelling under Kansas law. If Rose's conviction was for a non-dwelling, then it should have been classified as a nonperson felony. Therefore, an argument can be made that the trial court might have erred in classifying Rose's second-degree burglary conviction from Missouri as a person felony.
But the problem with Rose's argument on appeal is that he has invited the error, if any, from which he now complains. Our Supreme Court has made it clear that a defendant may not invite error and then complain of the error on appeal. State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011). Indeed, Rose did not object to his criminal history during sentencing. Moreover, when the judge asked him if he had reviewed the PSI and if the convictions were his, he answered in the affirmative. If Rose had a problem with the classification of the Missouri second-degree burglary conviction, he was required to “immediately notify the district attorney and the court with written notice of any error in the proposed criminal history worksheet.” K.S.A. 21–4715(c). Not only did Rose fail to notify the district attorney and the court of what he now alleges was an error, but he also told the court that he had reviewed the PSI and that the convictions were his.
Moreover, the appellant bears the burden of designating a sufficient record from which an appellate court may review the issues raised on appeal. Without such a record, the court presumes the action of the trial court was proper. State v. Holmes, 278 Kan. 603, 612, 102 P.3d 406 (2004). Second-degree burglary in Missouri can be of a dwelling or a nondwelling. If Rose's second-degree burglary conviction in Missouri was of a nondwelling, he should have produced the evidence to prove that it was a nondwelling. Rose failed to do so.
Finally, this court reached the same conclusion under facts substantially similar to the underlying facts. See State v. Layman, No. 106,114, 2012 WL 2924543 (Kan.App.2012) (unpublished opinion) (defendant challenging criminal history based on prior second-degree burglary conviction from Missouri invited error because he did not object to his criminal history before or during sentencing when he was asked if he had reviewed the PSI and if the prior convictions were his). Consequently, Rose's argument regarding his criminal history carries little weight and must fail. Accordingly, we affirm.
Affirmed.