Opinion
110,968.
04-10-2015
STATE of Kansas, Appellee, v. Odell FERGUSON, Appellant.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district 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.
Odell Ferguson appeals his sentence, asserting for the first time on appeal that the district court illegally sentenced him by classifying two previous misdemeanor convictions as person crimes for criminal history purposes, contrary to the Kansas Supreme Court's decision in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014. For reasons more fully explained below, we affirm the district court.
Factual and Procedural Background
In August 2013, Ferguson pled no contest to one count of aggravated assault with a deadly weapon. At Ferguson's sentencing hearing, the district court determined his criminal history score to be A, based in part on two prior in-state convictions which the court classified as person crimes. Ferguson's presentence investigation report reflected a conviction for battery on March 21, 1991, and a conviction for intimidation of a victim or witness on September 27, 1990. Both convictions occurred before the adoption of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq. Ferguson did not object to his criminal history score, and the district court sentenced Ferguson to 32 months' imprisonment with 12 months' postrelease supervision.
Ferguson timely appeals.
Did the District Court Err in Classifying Ferguson's In–State Pre–KSGA Convictions as Person Crimes for Criminal History Purposes?
Ferguson contends the district court erred in calculating his criminal history score because the calculation was based, in part, upon in-state pre-KSGA convictions that were classified as person misdemeanors and aggregated to increase his criminal history score. He asserts that Murdock requires classification of all pre-KSGA misdemeanors as nonperson midemeanors for criminal history purposes. In Murdock, our Supreme Court held that all out-of-state pre-KSGA felonies must be classified as nonperson felonies for criminal history purposes. 299 Kan. at 319. Ferguson argues that Murdock also controls the classification of in-state crimes as person or nonperson that occurred prior to the KSGA.
In response, the State argues (1) Murdock is not yet binding authority on this court, (2) Murdock does not apply to pre-KSGA Kansas convictions, (3) Murdock was wrongly decided, (4) prior Kansas cases require Ferguson's pre-KSGA misdemeanor convictions to be scored as person misdemeanors, (5) the language of the KSGA indicates that pre-KSGA Kansas felony convictions may be scored as person felonies, (6) the legislature explicitly rejected applying the person/nonperson distinction after July 1, 1993, (7) K.S.A.2013 Supp. 21–6811(d) demonstrates that the legislature intended for pre-KSGA Kansas crimes to be scored as person or nonperson based on their post-KSGA equivalents, and (8) the traditional canons of statutory interpretation should guide this court to hold that pre-KSGA Kansas convictions may be scored as person felonies or misdemeanors based upon their post-KSGA equivalents.
Ferguson states that his sentence is illegal because his criminal history score was incorrectly calculated and candidly concedes that he did not challenge the person/nonperson designation of his prior convictions at his sentencing. However, he asserts that pursuant to K.S.A. 22–3504(1), we may address allegations of an illegal sentence at any time. We agree.
“Whether a sentence is illegal is a question of law over which this court has unlimited review. [Citation omitted.] An ‘illegal sentence’ is: (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.” State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014).
A. Background
1. Kansas Sentencing Guidelines Act
In July 1993, the KSGA went into effect. Twenty years later, the legislature recodified and enacted the Revised Kansas Sentencing Guidelines Act (we will also refer to it as the KSGA), K.S.A.2013 Supp. 21–6801 et seq. The revised guidelines provide that criminal sentences are essentially based on two controlling factors—the criminal history of the defendant and the severity level of the crime committed, with person crimes having a greater impact. State v. Vandervort, 276 Kan. 164, 178, 72 P.3d 925 (2003) ; see K.S.A.2013 Supp. 21–6804(c). A defendant's criminal history score is calculated by tabulating the offender's prior convictions to generate a criminal history score, with A being the highest and I being the lowest. K.S.A.2013 Supp. 21–6803(d). The more extensive the criminal history of the defendant and/or the greater the severity level of the crime, the lengthier the guideline sentence. See K.S.A.2013 Supp. 21–6804(a).
2. State v. Murdock
In May 2014, the Kansas Supreme Court issued its decision in Murdock, a case that addressed whether the district court correctly classified two out-of-state pre-KSGA robbery convictions as person offenses. In 2008, Murdock pled guilty to committing multiple Kansas crimes. In sentencing Murdock for his crimes, the district court classified his out-of-state pre-KSGA crimes as person offenses. These classifications placed Murdock in a higher criminal history category and resulted in a longer sentence than if the out-of-state crimes had been classified as nonperson offenses. On appeal, Murdock argued the district court should have classified the out-of-state crimes as nonperson offenses.
Relying in part on its earlier opinion in State v. Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010), which held that defendants are to be sentenced in accordance with the law in effect at the time they committed the crime, our Supreme Court initially held that all crimes committed pre-KSGA must be classified as nonperson offenses for purposes of criminal history calculations in part because no crimes were classified as person or nonperson at the time. Murdock, 299 Kan. at 319.
The dissent in Murdock was highly critical of this approach, noting:
“[A]s a result of this [Murdock ] decision, all in-state convictions prior to 1993, regardless of how violent or heinous, appear to be subject to the same outcome....
....
“To now treat all pre–1993 crimes, 22 years after the enactment of the KSGA, as nonviolent nonperson crimes completely overlooks our sentencing structure, purpose, and design. It is a result that unexpectedly opens the prison gates to inmates who have a long history of committing violent crimes and pose the greatest threat to the public's safety.”299 Kan. at 319, 323 (Rosen, J., dissenting, joined by Luckert and Moritz, JJ.).
In September 2014, the court ordered the modification of its Murdock opinion and altered the sentence: “We recognize this rule results in the classification of all pre–1993 crimes as nonperson felonies—an outcome the State characterizes as unreasonable,” 299 Kan. at 319, to: “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.” (Emphasis added.) The rest of the opinion was unchanged, which implies that our Supreme Court intended to restrict Murdock to only out-of-state pre-KSGA convictions. This modification occurred after Ferguson's and the State's briefs were filed with this court.
Other panels of this court have already recognized the modification as limiting Murdock 's application to out-of-state pre-KSGA convictions. See State v. Waggoner, 51 Kan.App.2d 144, Syl. ¶ 1, 343 P.3d 530 (2015) (holding Murdock is limited to classification of out-of-state pre-KSGA convictions), petition for rev. filed February 18, 2015; State v. Dickey, 50 Kan.App.2d 468, 480, 329 P.3d 1230 (2014) (finding the holding in Murdock was “firmly tethered to the text of K.S.A. 21–4711 [e] and the absence of any other applicable legislature mandate”), rev. granted October 31, 2014; State v. Smith, No. 109,165, 2015 WL 1122951, at *23–24 (Kan.App.2015) (unpublished opinion) (adopting the analysis of Waggoner ), petition for rev. filed March 25, 2015; Baker v. State, No. 110,874, 2014 WL 5616606, at *11 (Kan.App.2014) (unpublished opinion) (finding because all of Baker's criminal history occurred in Kansas, Murdock did not apply), petition for rev. filed November 24, 2014; State v. Piercy, No. 110,526, 2014 WL 7152316, at *11–12 (Kan.App.2014) (unpublished opinion) (finding Murdock is limited to out-of-state crimes), petition for rev. filed January 1, 2015.
Murdock 's analysis began with a review of K.S.A. 21–4711(e), recodified as K.S.A.2013 Supp. 21–6811(e), which “governs the classification of out-of-state crimes/convictions,” supporting the conclusion that Murdock does not control the classification of in-state pre-KSGA convictions. If the language of a statute is plain, then appellate courts do not speculate about legislative intent. 299 Kan. at 314. “By its plain language, K.S.A. 21–4711(e) does not apply to in-state offenses or convictions. Because the statute upon which the Murdock court based its analysis does not apply to in-state convictions,” the Murdock holding should not be applied to in-state convictions either. Waggoner, 2015 WL 402760, at *5 (citing Dickey, 50 Kan.App.2d at 480 ).
In addition, K.S.A.2013 Supp. 21–6810(d)(6), formerly K.S.A. 21–4710(d)(8), does not mandate that an in-state pre-KSGA conviction be considered a nonperson crime. K.S.A.2013 Supp. 21–6810(d)(6) states: “Unless otherwise provided by law, unclassified felonies and misdemeanors shall be considered and scored as nonperson crimes for the purpose of determining criminal history.” In Murdock, our Supreme Court found:
“[I]t is likely K.S.A. 21–4710(d)(8) was adopted to address the scoring of a very limited number of current criminal statutes that do not categorize the crimes as person or nonperson offenses. See, e.g., K.S.A. 21–4213 (unlawful failure to report a wound is a ‘class C misdemeanor’); K.S.A. 21–4218 (unauthorized possession of a firearm on the grounds of or within certain state buildings is a ‘class A misdemeanor’); K.S.A. 21–4312 (unlawful disposition of animals is a ‘class C misdemeanor’); K.S.A. 21–4409 (knowingly employing an alien is a ‘class C misdemeanor’). And we believe it unlikely the legislature intended that K.S.A. 21–4710(d)(8) govern all pre–1993 convictions.” 299 Kan. at 318–19.
Because there was no provision in the KSGA on how to classify in-state preKSGA convictions, the Waggoner panel reasoned it was necessary to “look to the overall design and purposes of the KSGA” and held:
“Under the sentencing guidelines, designation of a crime as person or nonperson depends upon the nature of the offense. Crimes which inflict, or could inflict, physical or emotional harm to another generally are designated as person crimes. Crimes which inflict, or could inflict, damage to property generally are designated as nonperson crimes.” 2015 WL 402760, at *8.
We agree with the Waggoner panel's reasoning.
B. Ferguson's pre-KSGA crimes and classifications
By examining the nature of Ferguson's in-state pre-KSGA offenses of battery and intimidation of a witness or victim, it becomes apparent that the district court properly classified them as person crimes. In 1991, battery was defined as “the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.” K.S.A. 21–3412 (Ensley 1988). As demonstrated by the preKSGA statute, battery was a class B misdemeanor crime that led to physical or emotional harm of another person and should be classified as a person crime. Additionally, when the Kansas Criminal Code was adopted in 1969, the legislature set out a statutory outline, and battery was listed under Article 34 “Crimes against Persons.” See Piercy, 2014 WL 7152316, at *13. This designation further demonstrates the legislature's intent to classify battery as a person crime.
In 1990, intimidation of a witness or victim was defined, in part, as “knowingly and maliciously preventing or dissuading, or attempting to prevent or dissuade: (a) Any witness or victim from attending or giving testimony at any civil or criminal trial, proceeding or inquiry authorized by law; or (b) any witness, victim or person acting on behalf of a victim from” conducting certain activities. K.S.A. 21–3832 (Ensley 1988). This excerpt reveals the pre-KSGA statute defined a class B misdemeanor crime that could lead to physical or emotional harm of another person and should also be classified as a person crime. Therefore, the district court did not err by classifying Ferguson's instate pre-KSGA misdemeanors as person crimes for criminal history purposes, and Ferguson's sentence was not illegal.
Affirmed.