Opinion
110,407.
04-10-2015
STATE of Kansas, Appellee, v. Robert L. WALTRIP, III, Appellant.
Patrick H. Dunn and Caroline Zuschek, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Patrick H. Dunn and Caroline Zuschek, 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.
Robert L. Waltrip, III, appeals the district court's denial of his motion to correct illegal sentence. Abandoning the only issue he raised in the district court, he now argues to this court that the sentencing court (1) engaged in improper judicial factfinding as prohibited by Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), when it classified his 1985 burglary conviction as a person felony for criminal history purposes, and (2) violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution as recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it sentenced him based in part on his criminal history without first requiring the State to allege his criminal history in a charging document and prove it beyond a reasonable doubt to the jury. We agree with Waltrip on the first issue and conclude that based upon the holding in Descamps, his 1985 burglary conviction should have been scored as a nonperson felony for criminal history purposes. Thus, we vacate Waltrip's sentence and remand for resentencing using the correct criminal history score.
In September 2010, pursuant to a plea agreement, Waltrip pled guilty to one count of violating the Kansas Offender Registration Act (KORA), and the district court ordered a presentence investigation (PSI) report. The PSI report listed prior convictions, including a 1985 burglary in Johnson County, Kansas, which was scored as a person felony for criminal history purposes. Based on that conviction and other prior convictions, the PSI report calculated Waltrip's criminal history score as B.
In December 2010, the district court held the sentencing hearing, at which Waltrip objected to the district court considering two prior misdemeanor convictions of making harassing telephone calls. The district court disregarded those two prior convictions and asked the parties if they were then in agreement with the criminal history. After the State and defense counsel both indicated agreement, the district judge asked Waltrip personally if he admitted that his criminal history score was B. Waltrip replied, “Yes, Your Honor.” After denying Waltrip's motion for a departure sentence, the district court sentenced him to 114 months' imprisonment, the low number in the appropriate sentencing grid box.
Waltrip appealed his sentence and filed a motion for summary disposition under Kansas Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). In that motion, he acknowledged that he received a presumptive sentence under the sentencing guidelines and that an appellate court lacks jurisdiction over an appeal from a presumptive sentence. The State agreed and asked this court to dismiss the appeal for lack of jurisdiction; this court did so. In December 2011, the Supreme Court denied Waltrip's petition for review.
On October 30, 2012, Waltrip filed a motion to correct illegal sentence pursuant to K.S.A. 22–3504, challenging the severity level of his crime of conviction and asking the district court to resentence him under a different severity level. The State filed a response, arguing that Waltrip's sentence was not illegal because the statutory amendment that changed the severity level of his crime of conviction did not apply to Waltrip since the amendment occurred after he committed the crime, pled guilty, and was sentenced. On November 30, 2012, the district court filed a minute order denying Waltrip's motion and stating: “Defendant's sentence is pursuant to the presumptive guidelines. Defendant's appeal was dismissed by the Court of Appeals. The sentence is legal.” Waltrip filed a timely notice of appeal of the denial of his motion to correct illegal sentence.
On appeal, Waltrip argues that the district court erred by classifying his 1985 burglary conviction as a person felony for criminal history purposes. Specifically, Waltrip notes that the statute which explains how to determine whether Kansas burglaries occurring before July 1, 1993, should be scored as person or nonperson felonies, distinguishes between burglaries of a dwelling and other burglaries. He contends that because there was no such distinction in 1985, the sentencing court's determination that his 1985 burglary was a person felony constituted impermissible judicial factfinding of the sort that the United States Supreme Court found impermissible in Descamps and Apprendi. While the State responds to Waltrip's substantive arguments, it first raises questions of jurisdiction and preservation.
First, the State contends that this court does not have jurisdiction to consider Waltrip's appellate argument. The State points out that there are two notices of appeal in the record. The first notice of appeal filed in 2010 was for the direct appeal of Waltrip's sentence. That appeal was dismissed by this court and review was denied by the Kansas Supreme Court. The second notice of appeal filed on December 10, 2012, was to appeal the denial of Waltrip's motion to correct illegal sentence. The State points out that Waltrip cites solely to the original notice of appeal in his brief and argues that this court now lacks jurisdiction to address the denial of his motion to correct illegal sentence.
Just because Waltrip's brief cites to the wrong notice of appeal does not deprive this court of jurisdiction to address the denial of his motion to correct illegal sentence. The fact remains that Waltrip filed a timely notice of appeal on December 10, 2012, giving notice of his intent to appeal the district court's November 30, 2012, decision denying his motion to correct illegal sentence. That timely notice of appeal confers jurisdiction on this court to review the district court's decision denying the motion to correct illegal sentence. See K.S.A.2014 Supp. 22–3608(c) (defendant shall have 14 days after district court's judgment to appeal).
The State also points out that Waltrip's motion challenged only the severity level of the crime for which the district court sentenced him in 2010; it did not mention Waltrip's 1985 burglary conviction. On appeal, however, Waltrip has abandoned the argument he made in his motion below and instead argues about the person felony classification of his 1985 burglary conviction. The State contends that Waltrip should not be permitted to raise his current argument for the first time on appeal. Although the State categorizes its assertion as a jurisdictional issue, it is really asserting a preservation issue.
As our Supreme Court recently reiterated: “ ‘[C]onstitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review.’ [Citation omitted.]” State v. Reed, 300 Kan. 494, 507–08, 332 P.3d 172 (2014). There are three recognized exceptions to this rule: “(1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason.” State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).
Waltrip acknowledges that he is raising this issue for the first time on appeal, but he argues that the first two exceptions apply to allow this court to review his claim of an illegal sentence. Our Supreme Court apparently agrees with Waltrip, as the court has stated that a claim that a defendant's sentence is illegal “unquestionably” may be addressed for the first time on appeal. See State v. Kelly, 298 Kan. 965, 975–76, 318 P.3d 987 (2014). Thus, we will address Waltrip's claim for the first time on appeal because consideration of the theory is necessary to prevent the denial of fundamental rights.
The State also contends that Waltrip invited any error in the determination of his criminal history when he personally agreed at sentencing that his criminal history score was B. The issue of whether a Decamps issue can be waived by a defendant under the invited error rule recently was addressed by this court in State v.. Ruiz, 51 Kan.App.2d 212, 343 P.3d 544 (2015). In Ruiz, this court held that when a defendant stipulates at sentencing to the factual basis supporting his or her criminal history classification, the defendant may be barred from challenging the factual stipulations on appeal under the invited error doctrine. However, a defendant who stipulates to the legal effect of his or her criminal history classification is not barred from challenging the criminal history classification on appeal. 51 Kan.App.2d 212, Syl. ¶ 5. Furthermore, the Ruiz court noted that Kansas law is clear that a defendant cannot agree to an illegal sentence. 51 Kan.App.2d 212, Syl. ¶ 6. The mandate has been issued in Ruiz and the case is final.
Here, Waltrip did not stipulate to the factual basis supporting his criminal history classification. By agreeing that he was in criminal history category B, Waltrip stipulated to the legal effect of his criminal history classification; thus, he is not barred from challenging the criminal history classification on appeal. Furthermore, Waltrip cannot agree to an illegal sentence. For these reasons, we reject the State's claim that Waltrip invited any error that may have occurred by stipulating to his criminal history.
Turning to the merits, Waltrip argues that the district court erred by classifying his 1985 burglary conviction as a person felony for criminal history purposes. He notes that the Kansas statute which explains how to determine whether Kansas burglaries occurring before July 1, 1993, should be scored as person or nonperson felonies, distinguishes between burglaries of a dwelling and other burglaries. Waltrip contends that because there was no such distinction in 1985, the sentencing court's determination that his 1985 burglary was a person felony constituted impermissible judicial factfinding of the sort that the United States Supreme Court found impermissible in Descamps and Apprendi. Both parties acknowledge that this precise legal issue is unsettled in Kansas and that at least one other case recently was argued before the Kansas Supreme Court in which the court will address this issue. See State v. Dickey, 50 Kan.App.2d 468, 329 P.3d 1230 (2014), rev. granted October 31, 2014, argued March 6, 2015.
Without engaging in extensive analysis, we note that in Dickey, this court recently held that the district court erred by classifying the defendant's juvenile adjudication of burglary committed prior to the 1993 enactment of the Kansas Sentencing Guidelines Act (KSGA) as a person felony for criminal history purposes because prior to the enactment of the KSGA, the Kansas burglary statute did not distinguish between burglary of a dwelling as opposed to burglary of other structures. See 50 Kan.App.2d at 488. The Dickey court reasoned that by classifying the defendant's pre-KSGA adjudication as a burglary of a dwelling as opposed to a burglary of a nondwelling, the sentencing court engaged in the sort of judicial factfinding prohibited by the United States Supreme Court in Descamps 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 Waltrip's case.
Thus, we agree with Waltrip and conclude that based on the holding in Descamps, his 1985 burglary conviction should have been scored as a nonperson felony for criminal history purposes. Waltrip's sentence is vacated and the case remanded so that the district court can resentence Waltrip applying the correct criminal history score. We need not address Waltrip's second issue that the district court violated his constitutional rights under Apprendi when it sentenced him based in part on his criminal history without first requiring the State to allege his criminal history in a charging document and prove it beyond a reasonable doubt to the jury.
Vacated and remanded with directions.