Opinion
110,920.
04-10-2015
STATE of Kansas, Appellee, v. Geraldl Lynn SMITH, Appellant.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Christopher E. Smith, county attorney, and Derek Schmidt, attorney general, for appellee.
Heather Cessna, of Kansas Appellate Defender Office, for appellant.
Christopher E. Smith, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Gerald Lynn Smith appeals his sentence following his convictions of four counts of felony theft. Relying on our Supreme Court's decision in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, Smith argues that the district court erred by classifying his Kansas convictions, committed prior to the effective date of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq. , as person felonies for criminal history purposes. For the reasons stated herein, we affirm the district court's judgment.
On June 14, 2013, Smith pled no contest to four counts of felony theft. At the sentencing hearing, the district court found that Smith's criminal history score was Abased in part on 23 convictions in Sedgwick County and Butler County of residential burglary, aggravated burglary, and attempted aggravated residential burglary between 1977 and 1989. Smith did not contest his criminal history score at sentencing. The district court sentenced Smith to a controlling term of 24 months' imprisonment with 12 months' postrelease supervision. Smith timely appealed his sentence.
Smith's sole argument on appeal is that the district court erred by classifying his pre-KSGA convictions as person felonies. Smith concedes that he did not object to his criminal history score in the district court. But as Smith notes, his challenge to the accuracy of his criminal history score is a claim that his sentence is illegal. Thus, we may consider Smith's argument for the first time on appeal. See K.S.A. 22–3504(1) (a court may correct an illegal sentence at any time); State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011) (incorrect criminal history score results in an illegal sentence). The State agrees that Smith may raise this issue for the first time on appeal.
Whether a prior conviction is properly classified as a person or nonperson offense involves the interpretation of the KSGA. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).
Smith relies on our Supreme Court's decision in Murdock to support his argument that the district court erred by classifying his pre-KSGA convictions as person felonies. Murdock involved a sentencing appeal by a defendant who pled guilty to two counts of aggravated robbery and one count of robbery; his criminal history score included two out-of-state robbery convictions predating the 1993 enactment of the KSGA. 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.
Smith'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. All of Smith's prior convictions were for crimes committed in Kansas. The issue of whether Murdock ‘s holding should be extended to apply to in-state pre-KSGA convictions is unsettled in Kansas, but cases are pending before the Kansas Supreme Court in which the court will address this issue.
In State v. Waggoner, 51 Kan.App.2d 144, Syl. ¶ 1, 343 P.3d 530 (2015), petition for 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 Smith's case. Thus, we conclude the district court did not violate the holding in Murdock by classifying Smith's Kansas pre-KSGA convictions as person felonies for criminal history purposes.
Affirmed.
ATCHESON, J., dissenting:
I respectfully dissent from the treatment of Defendant Gerald Lynn Smith's preguideline, in-state convictions as person felonies for criminal history purposes, as outlined in my separate opinion in State v. Smith, No. 109,165, 2015 WL 1122951, at *24–29 (Kan.App .2015) (unpublished opinion), petition for rev. filed March 25, 2015. The reasoning of the majority 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.