Opinion
Nos. 107,150 107,151 107,229.
2013-03-8
STATE of Kansas, Appellee, v. Robert L. TAYLOR, Appellant.
Appeal from Sedgwick District Court; David Kaufman, Judge. Rachel L. Pickering, and Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; David Kaufman, Judge.
Rachel L. Pickering, and Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Robert L. Taylor appeals the denial of his motion to correct an illegal sentence. On appeal, Taylor claims the district court improperly based his criminal history score on a prior misdemeanor conviction in municipal court. According to Taylor, he was not represented by counsel during the municipal court case. But even if this allegation were true, Taylor would still have the same criminal history score and his sentence would be the same. Thus, we affirm his sentence as well as the denial of his motion to correct illegal sentence.
Facts
On October 6, 2010, Taylor proceeded to sentencing for convictions of felony possession of marijuana, aggravated robbery, two misdemeanors, fleeing or attempting to elude, and driving while suspended. At the sentencing hearing, the district court noted that Taylor's criminal history score was an “A,” and there were no objections. The court ultimately sentenced Taylor to concurrent sentences of 40 months in prison for felony possession of marijuana, 233 months for aggravated robbery, and 6 months for each misdemeanor. As to the conviction for fleeing and eluding, the court sentenced Taylor to a consecutive term of 16 months in prison. Hence, the total controlling term for all of Taylor's convictions was 249 months.
Subsequently, Taylor filed a pro se motion to correct an illegal sentence. Taylor claimed that a misdemeanor battery conviction in municipal court should not be part of his criminal history. Specifically, Taylor argued that he did not have representation of an attorney in the municipal court case. But the State presented a copy of a municipal court journal entry, which indicated that a public defender had been appointed to represent Taylor. After the district court denied Taylor's motion, he filed the present appeal.
Analysis
Motion to Correct Illegal Sentence
A district court can summarily deny a motion to correct an illegal sentence when, after a preliminary review, it determines that the movant failed to raise a substantial issue of fact or law. See State v. Jones, 279 Kan. 809, 810, 112 P.3d 123 (2005). When reviewing a summary dismissal, we conduct a de novo review to determine whether the sentence was illegal. 279 Kan. at 810. A sentence is illegal when it does not conform to the statutory provisions concerning the “term of the punishment authorized.” See State v. Harper, 275 Kan. 888, 890, 69 P.3d 1105 (2003).
Because criminal history scores affect the term of a defendant's punishment, a sentence is illegal when the district court assigns an incorrect criminal history score. See State v. Russell, 36 Kan.App.2d 396, 399, 138 P.3d 1289 (2006). “An uncounseled misdemeanor conviction obtained in violation of the misdemeanant's Sixth Amendment right to counsel may not be collaterally used for sentence enhancement in a subsequent criminal proceeding.” State v. Youngblood, 288 Kan. 659, Syl. ¶ 3, 206 P.3d 518 (2009).
Here, Taylor contends that he was not represented by counsel in a prior municipal proceeding in which he was convicted of battery. As such, Taylor argues that the district court prescribed an illegal sentence because it used that conviction to calculate his criminal history score of “A.” As this issue involves a motion to correct an illegal sentence, Taylor bears the burden to prove that there are substantial questions of law or fact. See State v. Neal, 292 Kan. 625, 637, 258 P.3d 365 (2011).
An individual has a criminal history score of “A” when he or she has three person felonies. See K.S.A.2012 Supp. 21–6805(a). Taylor's presentence investigation report reveals that he has three person felonies even without considering the municipal battery conviction about which he now complains. Because Taylor's alleged error would not make his criminal history score less than an “A,” his sentence would be the same even if his allegations were true. Accordingly, we find that Taylor failed to raise a substantial issue of law or fact.
Moreover, in his motion to correct an illegal sentence, the burden of proof was on Taylor to prove that counsel did not represent him. See State v. Neal, 292 Kan. at 637. Yet he failed to present any evidentiary basis for his assertion. Rather, Taylor simply relies on his own assertion that he was not represented by counsel in the municipal case, which is not sufficient to meet his burden. See State v. Patterson, 262 Kan. 481, Syl. ¶ 1, 939 P.2d 909 (1997). Accordingly, we conclude that the district court did not err in summarily denying the motion to correct illegal sentence.
Taylor raises an identical argument in his direct appeal from his conviction and sentence. When a defendant challenges his or her criminal history on direct appeal “[t]he State must prove a defendant's criminal history score by a preponderance of the evidence.” State v. Hughes, 290 Kan. 159, 162, 224 P.3d 1149 (2010). Then, on appeal, we review the record to determine whether substantial competent evidence supported the district court's finding that the State met its burden. 290 Kan. at 162. Evidence is substantial and competent when it is legal, relevant, and furnishes a basis of fact that a reasonable person could accept as sufficient to support a conclusion. See Venters v. Sellers, 293 Kan. 87, 93, 261 P.3d 538 (2011).
The Kansas Supreme Court has held that on direct appeal, appellate courts cannot presume waiver of counsel from a silent record. See Youngblood, 288 Kan. 659, Syl. ¶ 1. And it has suggested that a silent record also would not be sufficient to establish prior representation by counsel. Neal, 292 Kan. at 634. Taylor never challenged his criminal history score prior to sentencing, and he submitted nothing more than the allegation that he did not have counsel during a prior conviction.
But the State submitted a municipal court journal entry showing that a public defender was appointed to represent Taylor as of April 4, 2009. There were no dispositions in the case prior to that date, and Taylor pled guilty about 2 months later. Moreover, Taylor admitted that he spoke with an attorney the day he entered his plea in municipal court. Thus, there is substantial competent evidence to support the district court's finding that Taylor had representation during the challenged conviction. Therefore, we do not find that Taylor's sentence was illegal. Apprendi Issue
Taylor also contends the district court was required to prove his criminal history score to a jury beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). But he candidly concedes that the Kansas Supreme Court has decided this issue against him and that he simply wishes to preserve his argument for further review.
The Kansas Supreme Court has held that the use of criminal history scores to determine a defendant's sentence is not unconstitutional under Apprendi. See State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). We are duty bound to follow our Supreme Court's precedent unless we find that it is departing from its prior position. See State v. Merrills, 37 Kan.App.2d 81, 83, 149 P.3d 869,rev. denied 284 Kan. 949 (2007). And we have no reason to believe that our Supreme Court is departing from its position on this issue. See State v. Jones, 295 Kan. 1050, ––––, 288 P.3d 140, 147 (2012).
Affirmed.