Opinion
110,943.
05-08-2015
STATE of Kansas, Appellee, v. James Lee WILSON, Appellant.
Johnathan M. Grube and Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Johnathan M. Grube and Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
James Lee Wilson was convicted of battery of a law enforcement officer, aggravated assault of a law enforcement officer, four counts of obstruction of official duty, burglary of a structure, two counts of burglary of a vehicle, two counts of theft, and two counts of criminal damage to property. The convictions arose from two separate cases which were consolidated for purposes of both the trial and this appeal. On appeal, Wilson claims: (1) the State committed prosecutorial misconduct during the opening statement and closing arguments; (2) there was insufficient evidence to support his conviction of aggravated assault of a law enforcement officer; and (3) the district court erroneously classified his 1988 attempted burglary conviction as a person felony for criminal history purposes. For the reasons stated herein, we affirm Wilson's convictions but vacate his sentence and remand for resentencing.
Factual and Procedural Background
On the afternoon of October 22, 2010, Wilson drove his red Mazda pickup truck to Johnson County, Kansas, to pick up his girlfriend from the county jail. Wilson got lost along the way in western Johnson County and stopped at a farmhouse to ask for directions from Tyler Lynn and Dennis Andrew. Lynn had observed Wilson driving very fast down his driveway, so while Andrew was giving Wilson directions, Lynn walked behind Wilson's pickup truck and wrote down the license plate number. Lynn later testified: “I think he saw me do that, because then, you know, he put it in gear, and floored it, and was fishtailing all the way out of my driveway.” After Wilson left, Lynn called the Johnson County Sheriff's Office to report the incident.
As Wilson was driving, he noticed an unoccupied property at 151st Street, owned by Douglas Long. Wilson later testified that he decided to enter the property and “steal some stuff.” The gate to the property was locked, so Wilson drove his pickup truck to the gate and pushed against it until the lock gave way. A van, a camper, and a shed were located on the property. Wilson opened the shed and took some speakers. He then pried open a window in the back of the camper and took a television, several bottles of liquor, and some tools. Wilson entered the van but did not remove any items from it.
Wilson left the property and headed east, resuming his search for the county jail. As he approached the intersection of 151st and Dilly Road, he saw a vehicle approaching from the opposite direction. Wilson got out of his truck to ask for directions from the vehicle's driver. As Wilson spoke to the driver, Deputy Justin Kohlmeier of the Johnson County Sheriff's Office pulled up behind Wilson's truck and activated his emergency lights. Kohlmeier had been watching for Wilson's truck as a result of a 911 call about an erratic driver. When Kohlmeier activated his emergency lights, Wilson walked briskly back to his truck, jumped in, and “took off.” Kohlmeier initially pursued him but gave up the chase according to department protocol. Kohlmeier continued to follow Wilson but lost track of him when he reached a T-intersection.
Soon thereafter, Sergeant Mark Rokusek of the Johnson County Sheriff's Office spotted Wilson's truck. Rokusek activated his emergency lights and siren and attempted to initiate a traffic stop. Wilson fled at a high rate of speed. Once again, the situation did not meet the department's pursuit requirements, so Rokusek deactivated his emergency equipment. However, Rokusek continued to follow Wilson, whose vehicle did not accelerate beyond 45–50 mph. It appeared to Rokusek that Wilson's vehicle was experiencing some type of mechanical malfunction. He could see smoke coming from the engine compartment and noticed that fluids were draining from the vehicle. Rokusek determined that the pursuit had become a slow-moving traffic hazard, so he reactivated his emergency lights as he continued to follow Wilson.
Rokusek believed that the situation was going to turn into a “jump and run foot pursuit.” In anticipation of having to chase Wilson on foot, he unlocked the driver's side door of his vehicle and cracked the door open. After doing so, Rokusek looked up and saw that Wilson's truck had abruptly stopped in front of him. Rokusek stopped his vehicle and updated dispatch on the situation. Wilson exited his pickup truck quickly, but instead of fleeing, he proceeded to stand in the lane of traffic. Rokusek later testified that Wilson was facing his patrol unit, nervously glancing around at the street, his feet, and the truck. Wilson was carrying a black object in his hand, which Rokusek perceived as a weapon. Rokusek exited his department-issued Chevrolet Suburban, drew his gun, and pointed it at Wilson. Rokusek repeatedly ordered Wilson to get on the ground, but Wilson did not comply with his commands. Wilson was still holding the black object, which was positioned behind his leg and out of Rokusek's view.
Rokusek decided to deploy some Oleoresin Capsicum (O.C.) spray—a substance similar to mace. He moved within 6–10 feet of Wilson and deployed the O.C. spray, hitting Wilson in the chest area. He then angled the stream up toward Wilson's face. Wilson “winced” and then backed away. Wilson made a comment to the effect of, “Brother, you ain't got to do that. I'm down. I'm down.” However, Wilson was still on his feet. Rokusek deployed O.C. spray twice more, each time advancing toward Wilson, continuing his verbal commands for Wilson to get on the ground. Wilson made a similar statement that he was down, but he still did not get down on the ground.
After the third deployment of O.C. spray, Rokusek was standing on the driver's side of Wilson's pickup truck. Wilson was standing directly across the hood from him, but then dropped down out of sight. As Rokusek slowly moved around the front of the truck, Wilson once again popped up into his view. Wilson was sprinting away from the truck toward Rokusek's Suburban. Rokusek tried to intercept Wilson, but Wilson reached the still-running Suburban, leapt in, and shifted the vehicle in gear. By this point, Rokusek had reached the front driver's side wheel of the Suburban. As Wilson steered the Suburban to avoid his pickup truck parked in front of it, the vehicle “bumped” Rokusek into the roadway. Rokusek landed in the westbound lane of 151st near the edge of the street. Rokusek fired his gun at Wilson and struck him in the arm.
Wilson fled in the Suburban at a high rate of speed. Rokusek's partner, Deputy Daniel Denton, was located down the road in the direction Wilson was headed. Denton set up “stop sticks” in the eastbound lane of the roadway and was standing behind his vehicle in the westbound lane. As Wilson approached in the stolen Suburban, Denton saw him “ma[k]e an overt action to enter the westbound lanes of travel,” heading toward Denton's patrol vehicle. Denton believed that Wilson was trying to strike his patrol car, which would in turn cause the patrol car to run over him. Denton triggered a reel that pulled the stop sticks off the roadway and then ran into the ditch. Wilson missed hitting Denton's patrol vehicle and continued eastbound. He soon lost control of the Suburban and it fishtailed several times before spinning completely around and traveling off the road into the ditch, rolling several times before it came to rest.
Denton and other officers made their way to the Suburban to arrest Wilson, but he already had fled on foot. The officers eventually located Wilson at a nearby farm and arrested him. One of the arresting officers was Deputy Fisher of the Johnson County Sheriff's Office, who attempted to identify Wilson. Because the pickup truck was registered to a Chester Odum, Fisher asked Wilson if that was his name and Wilson said that it was. However, when Fisher received a copy of Odum's driver's license photo, it was obvious to him that Wilson was not Odum. While booking Wilson, Fisher found paperwork for a Tony Brown and asked Wilson if that was his name. Wilson said it was. Fisher asked dispatch for Brown's driver's license photo and again concluded that Wilson was not Brown. Wilson then told Fisher that his name was Thomas L. Wilson. He also gave this name to Detectives Rebecca Crabtree and Gary Borstleman of the Johnson County Sheriff's Office during a subsequent interview. Several days later, the detectives determined that Thomas L. Wilson was actually Wilson's twin brother.
The State charged Wilson in two separate cases with a total of 13 counts, including battery of a law enforcement officer, aggravated assault of a law enforcement officer, four counts of obstruction of official duty, burglary of a structure, two counts of burglary of a vehicle, two counts of theft, and two counts of criminal damage to property. Wilson filed a motion to suppress statements he made to Crabtree and Borstleman during custodial interviews. In his motion to suppress, Wilson argued that he had just completed surgery and was under the influence of pain medication when the detectives interviewed him. Thus, he asserted he was not capable of making an informed and voluntary decision when he waived his Miranda rights. The district court ultimately overruled Wilson's motion to suppress, finding that Wilson voluntarily answered the detectives' questions.
Upon the State's motion, the district court consolidated Wilson's cases for trial. The jury trial began on July 8, 2013. Over the course of the 3–day trial, the State called Kohlmeier, Rokusek, Denton, Fisher, Crabtree, Borstleman, and various other members of the Johnson County Sheriffs Office involved in the investigation of Wilson's case. Wilson testified in his own defense and largely confirmed the sheriff's officers' version of events. He admitted to burglarizing Long's property and stealing various items. He admitted to fleeing from Kohlmeier and Rokusek when they attempted to initiate traffic stops. Wilson further acknowledged that during his confrontation with Rokusek, he did not get on the ground despite Rokusek's repeated instructions to do so. He admitted that he stole Rokusek's patrol vehicle but testified that he had not intended to hit Rokusek as he fled the scene. Wilson further acknowledged that he lost control of the stolen Suburban as he tried to avoid hitting the stop sticks in the roadway but denied any intent to scare or hit Denton. Finally, Wilson admitted that he purposely gave law enforcement officers a wrong name on multiple occasions.
The jury convicted Wilson on all counts with the exception of Count 2, aggravated battery of a law enforcement officer for hitting Rokusek with the Suburban. Instead, the jury found Wilson guilty of the lesser included offense of battery of a law enforcement officer. On October 4, 2013, the district court conducted Wilson's sentencing hearing. Wilson's criminal history included a 1988 attempted burglary conviction from Wyandotte County, Kansas. In 10CR2615, the district court imposed a controlling sentence of 65 months' imprisonment. In 10CR2710, the district court imposed a controlling sentence of 34 months' imprisonment, to run consecutively with the other case. Wilson timely appealed the district court's judgment.
Prosecutorial Misconduct
In his first issue on appeal, Wilson argues that the prosecutors committed misconduct during the opening statement and closing arguments by vouching for the credibility of a witness and making inflammatory remarks. Wilson contends that the prosecutors' misconduct deprived him of a fair trial and asks this court to reverse his convictions and remand for a new trial. The State responds that neither prosecutor committed misconduct, or alternatively, that any misconduct was harmless.
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, the appellate court must determine whether the improper comments compel reversal; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014).
Did the prosecutors vouch for the credibility of a witness?
At trial, the defense called Gene Gietzen as an expert witness. Gietzen identified himself as a forensic scientist and the owner of Forensic Consulting in Springfield, Missouri. Based on his analysis of various photographs and other discovery documents, Gietzen formed an opinion regarding the trajectory of the bullet fired by Rokusek from outside the Suburban that hit Wilson's arm. He also studied the ejection pattern of Rokusek's spent shell casings to identify the general area where the casings were discharged—in other words, Rokusek's approximate position when he fired those shots. It was Gietzen's opinion that Rokusek was not standing near the Suburban when Wilson drove off, which implied that Rokusek could not have been hit by the vehicle.
On cross-examination, the State aggressively questioned Gietzen's training, experience, and knowledge of ejection pattern analysis. During redirect examination, defense counsel asked Gietzen if he had inspected the Suburban:
“Q. Mr. Gietzen, did you ever go look at the Suburban?
“A. I don't remember if I did or not.
“Q. Did you ever physically go out and look at this Suburban?
“A. I don't remember doing so, but I may have.
“Q. You don't remember going out with myself and Mr. Roth to look at the vehicle?
“A. Like I said, I may have, but I don't recall. I think there was something in a report said something about going out and looking at it in June.”
The State called Jason Butell, a forensic scientist from the firearm and tool mark section of the Johnson County Crime Lab, as a rebuttal witness. Butell explained all of the variables that affect where a spent shell casing will come to rest and testified that ejection pattern studies are not generally accepted in the scientific community.
During closing argument, one of the prosecutors, Christopher McMullin, addressed Gietzen's testimony during a larger discussion of the evidence presented at trial. He stated the following:
“Now, I'm going to take a little bit of a pause and talk about Mr. Geitzen. Mr. Ican't-e ven-remember-going-and-seeing-that-gigantic-Suburban about a year ago traveling from Springfield to Johnson County, Kansas to see it, which he did. What exactly did Geitzen say? How will it be used? I don't know what he says. How much credibility should you give a man who was so ill-prepared that he didn't remember that he traveled to Johnson County from Springfield to go see that vehicle, even though it was in Line 2 of the report that he supposedly reviewed before his testimony today. You get to decide how much credibility, how much credibility should you give someone who would not even acknowledge that wind or a sloped roadway would affect where a cartridge casing might land on the roadway.” (Emphasis added.)
Later, during the rebuttal portion of his closing argument, McMullin stated:
“So, the shell casings tell you what? He's in generally the same place, and he probably is. But that's not good science, because we can't tell, predict, when you're going like this, when you're shooting, when you got the gun to the side, that's not what the Glock manufacturing company designed. They designed for this, for stability.
“Jason Butell, a real expert, told you about that. So, all this shiny stuff should not distract you from the physical evidence.” (Emphasis added.)
Wilson objects to the italicized statements above, arguing that by making them, the prosecutor vouched for the truthfulness and credibility of a key witness. Wilson asserts that the prosecutor unfairly attacked Gietzen's credibility by making light of the fact that Gietzen did not remember if he had inspected the Suburban. Wilson also asserts that McMullin's reference to Butell as “a real expert” unfairly bolstered his credibility. Our Supreme Court has held that a prosecutor should not state a personal opinion about the credibility of witnesses. State v. Elnicki, 279 Kan. 47, 64, 105 P.3d 1222 (2005) (citing State v. Pabst, 268 Kan. 501, 506, 996 P.2d 321 [2000] ).
Here, the first two remarks complained of by Wilson were squarely based in the evidence and properly asked the jury to determine Gietzen's credibility. First, regarding the prosecutor's classification of Gietzen as “Mr. I–can't–even–remember–going–and–seeing–that–gigantic–Suburban,” Gietzen did, indeed, testify that he did not remember whether he had actually inspected the Suburban in person. The prosecutor did not tell the jury that Gietzen was not credible; rather, he asked the jury to determine how much credibility they should give a man who was so ill-prepared for trial that he did not remember seeing the vehicle that was the subject of his testimony.
The prosecutor's final statement referring to Butell as “a real expert” presents a closer call. On the one hand, Butell presented expert testimony, which was allowed by the district court. On the other hand, the prosecutor's comment that Butell was a real expert implied that Gietzen was not, in fact, a real expert. Nevertheless, we find that the prosecutor's reference to Butell as “a real expert” fell within the considerable latitude allowed to a prosecutor in making a closing argument. Butell is employed as a forensic scientist with the Johnson County Crime Lab. He testified extensively about his training and prior experience with the Regional Forensic Science Laboratory in Wichita. The prosecutor did not commit misconduct by referring to Butell as a real expert.
Did the prosecutors make inflammatory remarks?
The other prosecutor, Laura Smith, began her opening statement with the following remark: “Ladies and gentlemen, the evidence in this case will show that on October 22nd of 2010, James Lee Wilson, the defendant in this case, left a 6.5 mile swath of destruction through Johnson County.” (Emphasis added.) At the end of her statement, Smith returned to this theme, stating: “Ladies and gentlemen, after you've heard all the evidence about this 6.5 mile path of destruction, we ask that you find the defendant guilty as charged.” (Emphasis added.) McMullin began his closing argument with the same phrase utilized by Smith, asking the jury to find Wilson “guilty of the crimes involved in his nearly six and a half mile path of destruction. ” (Emphasis added.)
Wilson takes issue with the italicized statements above. By making repeated reference to a path of destruction or swath of destruction, Wilson argues the prosecutors' intent was to characterize his behavior as “destructive.” He contends the jury should be responsible for determining whether certain actions are destructive and asserts that the State's “calculated comments” prejudiced the jury against Wilson. Our Supreme Court “has repeatedly emphasized that it is improper for a prosecutor to comment on facts not in evidence, to divert the jury's attention from its role as factfinder, or to make comments that serve no purpose other than to inflame the passions and prejudices of the jury.” State v. Stimec, 297 Kan. 126, 128, 298 P.3d 354 (2013).
We reject Wilson's claim that the prosecutors improperly inflamed the passions of the jury by using the phrase “path of destruction.” To begin with, the largely uncontroverted evidence presented at trial supports the prosecutors' statement that Wilson created a path of destruction on the evening in question: he used a pickup truck to break the lock on Long's gate; he broke a window in Long's camper; he destroyed the pickup truck; and he destroyed Rokusek's Suburban. Furthermore, our Supreme Court has previously recognized that prosecutors have some freedom to employ colorful language when arguing the State's case. See State v. Maestas, 298 Kan. 765, 777–78, 316 P.3d 724 (2014). “The prosecutor may even use ‘picturesque speech’ as long as he or she does not refer to facts not disclosed by the evidence.” State v. Crawford, 300 Kan. 740, 749, 334 P.3d 311 (2014). Here, the picturesque phrase utilized by both prosecutors was firmly rooted in the evidence and thus was not improper.
Wilson also objects to another statement made by McMullin in closing argument:
“And what we're starting, as this case moves it's [sic ] way along, is an old saying, actions speak louder than words. The defendant's actions, almost from the beginning, really from the beginning of his interaction with Deputy Justin Kohlmeier, are trying to throw the heat off himself. He told you, he admitted on the witness stand, he lied to police. He lied really up until he couldn't lie anymore when faced with the prospect of a fingerprint examination. His actions—every action that he took was trying to get him out of the hot water of his own making. He sees Deputy Kohlmeier. He knows he's got a truck bed chalk full of freshly stolen stuff. He knows that if he submits and talks to Deputy Kohlmeier, it's not going to be very long before Justin Kohlmeier figures out that this guy, with Wyandotte County plates, acting suspiciously in western Johnson County, there's no reason for him to be driving out in the county with a pickup truck loaded full of stuff. So, he bolts. He bolts. And he sets into motion a whole series of events of his own making that wind up with him actually here today. So, he—his actions speak louder than words.” (Emphasis added.)
Wilson contends that the italicized portion of the prosecutor's remarks “can only be construed as an effort to prejudice the jury against someone from another county.” He asserts that Wyandotte and Johnson Counties have substantial demographic differences and that the prosecutor was attempting to “inflame prejudice” against Wilson who had no reason to be driving in Johnson County. Wilson also asserts that the prosecutor's speculation as to why he failed to stop his vehicle was not supported by the evidence.
Once again, we find that the prosecutor's statement does not constitute misconduct. First, the statement was consistent with Wilson's own trial testimony as to why he refused to stop his truck:
“Q. And you knew you were busted if you got pulled over, right?
“A. Yes, sir.
“Q. So, they would have had a reason to arrest you and take you into custody, because you had a truck full of stolen stuff?
“A. I'm not going to agree with that, sir, because they didn't know about the stolen stuff. Like I said before, I'm not thinking what they knew.
“Q. Why did you not stop?
“A. Because I knew I had stolen, sir.
“Q. And you knew they would figure it out pretty quick?
“A. Yes, sir.”
Secondly, a prosecutor is not limited to discussing direct evidence when arguing to a jury. “Rather, a prosecutor is allowed considerable latitude in discussing the evidence and drawing reasonable inferences from that evidence.” State v. Crawford, 300 Kan. 740, Syl. ¶ 6, 334 P.3d 311 (2014). Here, the uncontroverted evidence presented at trial established that Wilson was driving a pickup truck full of stolen property at the time he encountered Kohlmeier. Upon seeing Kohlmeier, Wilson walked briskly back to his truck and took off. When Kohlmeier attempted to initiate a traffic stop, Wilson fled. Based on these facts, the jury certainly could infer that Wilson “bolted” because he feared Kohlmeier would be suspicious of a pickup truck loaded with personal property.
Furthermore, while Wilson attempts to paint the prosecutor's reference to his Wyandotte County license tag as an effort to prejudice the jury against someone from another county, the out-of-county tag actually was relevant to the case. Lynn recorded Wilson's tag information and reported it to the Johnson County Sheriff's Office, which alerted Kohlmeier to a pickup truck with a Wyandotte County plate. Lynn testified that Wilson saw him write down his tag information. In other words, the jury certainly could have inferred from the evidence that Wilson was aware of the possibility that officers could be on the lookout for his pickup truck and its corresponding license tag.
In sum, we find that none of the statements made by the prosecutors constituted misconduct. But even if any of the statements were deemed to be improper, we find that the statements did not deprive Wilson of a fair trial. In the second step of the two-step prosecutorial misconduct analysis, the appellate court considers three factors: (1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors. State v. Williams, 299 Kan. 509, 540, 324 P.3d 1078 (2014). Applying this analysis, the prosecutors' statements at Wilson's trial, even if found to be improper, would not require the reversal of Wilson's convictions.
Sufficiency of the Evidence
Next, Wilson contends that the State failed to present sufficient evidence to support his conviction of aggravated assault of a law enforcement officer. Specifically, he argues the State failed to prove that he intentionally placed Denton in reasonable apprehension of immediate bodily harm. The State disagrees, asserting there was sufficient evidence to convict Wilson of the aggravated assault of Denton.
When the sufficiency of the evidence is challenged in a criminal case, the appellate court reviews all the evidence in the light most favorable to the prosecution and must be convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Williams, 299 Kan. at 525. In determining whether there is sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or assess the credibility of witnesses. 299 Kan. at 525.
In order for the jury to find Wilson guilty of aggravated assault of a law enforcement officer, the State had to prove the following:
“1. That the defendant intentionally placed Deputy Nathanial Denton in reasonable apprehension of immediate bodily harm;
“2. That Deputy Nathanial Denton was a uniformed or properly identified county law enforcement officer;
“3. That Deputy Nathanial Denton was engaged in the performance of his duty;
“4. That the defendant used a deadly weapon; and
“5. That this act occurred on or about the 22nd day of October, 2010, in Johnson County, Kansas.”
Wilson argues that while his actions might have frightened Denton, making him believe that the Suburban might hit him, he never intended to make Denton feel that harm was coming his way. He points to his trial testimony that he did not intentionally try to hit Denton with the Suburban but was only trying to avoid the stop sticks on the roadway.
Contrary to Wilson's claim, the State presented sufficient evidence to support his conviction of aggravated assault of a law enforcement officer. Denton testified that Wilson was driving toward his location on 151st at a high rate of speed. As the Suburban approached Denton, it “made an overt action to enter the westbound lanes of travel.” The Suburban began to travel at Denton's patrol vehicle and the location where he was standing. Denton believed that Wilson was trying to strike him with the Suburban. The State admitted a video from Denton's patrol vehicle showing Wilson's actions on the evening in question. Finally, Wilson himself testified that he “got in the left lane” to avoid hitting the stop sticks in the right lane.
Wilson essentially is asking this court to reweigh the evidence and assess the credibility of witnesses, tasks which this court cannot perform on appeal. Williams, 299 Kan. at 525. While much of the evidence in Wilson's case relating to this charge was circumstantial, there was sufficient evidence from which the jury could have inferred that Wilson intentionally placed Denton in reasonable apprehension of bodily harm with the Suburban. “A conviction of even the gravest offense may be sustained by circumstantial evidence.” State v. Holmes, 278 Kan. 603, 632, 102 P.3d 406 (2004). When the evidence is considered in the light most favorable to the State, the jury had sufficient evidence to convict Wilson of aggravated assault of a law enforcement officer.
Sentencing Issue
In his final issue on appeal, Wilson contends that the district court erroneously classified his 1988 attempted burglary conviction from Wyandotte County, Kansas, as a person felony for criminal history purposes. He asserts that this felony occurred prior to 1993, at which time Kansas did not specifically classify felonies as person or nonperson. Therefore, Wilson argues that this conviction should be classified as a nonperson felony, which would shift his criminal history score from an A to a B. The State urges this court to reject Wilson's argument and affirm the district court's classification of his pre–1993 in-state conviction as a person felony.
As a threshold matter, the State argues that the invited error doctrine precludes review of this issue on the merits. It points out that Wilson did not object at sentencing to the use of his 1988 conviction, nor did he object to his criminal history score.
Since the parties filed their briefs, this court issued its opinion in State v. Ruiz, 51 Kan.App.2d ––––, 343 P.3d 544 (2015). In Ruiz, this court held that
“[w]hen 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.” 343 P.3d 544, Syl. ¶ 5.
Wilson is not challenging the factual basis supporting his 1988 attempted burglary conviction. Rather, he is challenging the legal effect of the classification of his 1988 attempted burglary conviction as a person felony. Based on the rationale of Ruiz, the invited error doctrine does not apply and this court may consider Wilson's claim on its merits.
On appeal, Wilson first contends that the district court erred by classifying his 1988 attempted burglary conviction as a person felony for criminal history purposes based on our Supreme Court's holding in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court Order September 19, 2014. Wilson argues that under the holding in Murdock, all convictions for crimes committed prior to the enactment of the Kansas Sentencing Guidelines Act (KSGA) must be classified as nonperson offenses for criminal history purposes. Next, Wilson argues that the district court violated his constitutional rights because, in order to classify his 1988 attempted burglary conviction as a person felony for criminal history purposes, the district court engaged in the sort of judicial factfinding prohibited by the United States Supreme Court in Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). We will address Wilson's claims in reverse order.
Wilson argues that the district court violated his constitutional rights under Descamps by classifying his 1988 attempted burglary conviction as a person felony for criminal history purposes. Without engaging in extensive analysis, we note that in State v. Dickey, 50 Kan.App.2d 468, 488–89, 329 P.3d 1230 (2014), rev. granted October 31, 2014, this court recently held that the district court erred by classifying the defendant's pre-KSGA juvenile adjudication of burglary as a person felony for criminal history purposes because prior to the enactment of the KSGA, the Kansas burglary statute did not distinguish between residential and nonresidential structures. The Dickey court reasoned that by classifying the defendant's pre-KSGA adjudication as a residential burglary as opposed to a nonresidential burglary, the sentencing court engaged in the sort of judicial factfinding prohibited by the United States Supreme Court in Descamps and in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ; see 50 Kan.App.2d at 480–90.
Although the decision in Dickey is not final, we adopt its reasoning as applied to Wilson's case. Thus, we conclude the district court erred by classifying Wilson's 1988 attempted burglary conviction as a person felony for criminal history purposes. The case must be remanded so that the district court can resentence Wilson applying the correct criminal history score.
Wilson also argues that his pre-KSGA Kansas conviction must be scored as a nonperson felony for criminal history purposes pursuant to Murdock. In Murdock, 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 felonies. 299 Kan. 312, Syl. ¶ 5. The State spends a substantial portion of its brief arguing that the holding in Murdock does not apply to in-state pre-KSGA convictions. Because we are remanding for resentencing based on Dickey, we do not need to address the Murdock issue in this opinion.
Affirmed in part, vacated in part, and remanded with directions for resentencing.