Evans v. State

1

Larry G. Evans Jr., Appellant, v. State of Kansas, Appellee.

No. 125,321

Court of Appeals of Kansas

May 26, 2023

NOT DESIGNATED FOR PUBLICATION

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion Affirmed.

Mark Sevart, of Derby, for appellant, and Larry G. Evans Jr. appellant pro se.

Lance J. Gillett, assistant district attorney, Marc Bennett district attorney, and Kris W. Kobach, attorney general, for appellee.

Before BRUNS, P.J., CLINE and HURST, JJ.

MEMORANDUM OPINION

PER CURIAM:

Larry G. Evans Jr. appeals from the district court's summary denial of his K.S.A. 60-1507 motion after he was convicted of attempted aggravated human trafficking and two counts of sexual exploitation of a child. Although Evans filed a direct appeal, it was summarily dismissed by the Kansas Supreme Court. On appeal in this case, Evans argues that both his trial and appellate counsel were ineffective for failing to argue that his criminal history score was incorrect. However we find that his criminal history score was correct as a matter of law and that his attorneys were not ineffective. We also find that the district court had a factual basis to accept Evans' plea. Thus, we affirm.

FACTS

On April 4, 2017, the State charged Evans with one count of aggravated human trafficking in violation of K.S.A. 2016 Supp. 21-5426(b)(4)(c), (2) and two counts of sexual exploitation of a child in violation of K.S.A. 2016 Supp 21-5510(a)(2), (b)(1)(A). Evans subsequently entered into a plea agreement with the State in which he agreed to plead guilty to a reduced charge of attempted aggravated human trafficking and the two counts of sexual exploitation of a child. In exchange, the State agreed to recommend that Evans be sentenced using the mid-range number in the appropriate Kansas Sentencing Guidelines grid box.

At the plea hearing, the district court read the amended complaint-which set out the essential elements and factual basis for each crime-to Evans. In addition, the State supplemented the factual basis for the plea. The district court then asked Evans if the facts read from the amended complaint and as supplemented by the State were true. In response, Evans said, "Yes, sir." At the conclusion of the hearing, the district court accepted Evans' plea and found him guilty of the charges set forth in the amended complaint.

Although the parties anticipated that Evans' criminal history score would be C, the presentence investigation (PSI) report revealed that Evans' criminal history score was actually B. As explained in the report, Evans had 2 prior person felony convictions among his 22 total prior convictions. Specifically, he was convicted of fleeing or attempting to elude a law enforcement officer in Sedgwick County Case No. 99 CR 2797 and of voluntary manslaughter in Sedgwick County Case No. 99 CR 3329. Both crimes were person felonies at the time and continue to be today. See K.S.A. 1998 Supp. 8-1568(b)(1)(D), (c)(4); K.S.A. 8-1568(c)(2); K.S.A. 21-3403; K.S.A. 2022 Supp. 21-5404(b).

Prior to the sentencing hearing, Evans filed a motion for departure in which he asked for either a dispositional or durational departure. Evans pointed out that his prior fleeing or attempting to elude conviction had previously been treated as a nonperson felony. He also pointed out that if his criminal history score is B instead of C, the presumptive sentence for his current crimes of conviction was substantially higher. In addition, Evans argued that the district court should take into consideration that his prior person felony convictions were about 20 years old.

On October 4, 2019, the district court held a sentencing hearing. Although both parties agreed that Evans' criminal history score was B, Evans argued he should either be placed on probation or receive a sentence consistent with a criminal history score of C. His trial counsel explained that both parties were under the mistaken impression that Evans' criminal history score would be C during their plea negotiations because they were unaware of the previous misclassification of the fleeing or attempting to elude conviction. Evans' trial counsel also emphasized that the prior person felony convictions occurred 20 years ago.

In response, the State argued that the prior misclassification of Evans' fleeing or attempting to elude conviction did not warrant either a dispositional or durational departure sentence in this case. The State agreed that Evans' prior fleeing or attempting to elude conviction had previously been misclassified but that it had always been a person felony as a matter of law. Moreover, the State argued that Evans already received the benefit of the misclassification because the district court did not count his prior fleeing or attempting to elude conviction as a person felony in his voluntary manslaughter case.

After hearing the arguments of counsel, the district court denied Evans' motion for departure. But it did apply the low number sentence in the grid box and sentenced Evans to 206 months in prison on the attempted aggravated human trafficking conviction. The district court also sentenced Evans to concurrent sentences of 31 months in prison for each count of sexual exploitation of a child. Thereafter, Evans filed a direct appeal.

In his direct appeal, Evans' appellate counsel moved for summary disposition on the sole issue presented-whether the district court erred in denying the motion for dispositional or durational departure. The appeal was transferred to the Kansas Supreme Court under K.S.A. 20-3018(c) and Supreme Court Rule 7.041A(b) (2020 Kan. S.Ct. R. 47). On July 27, 2020, the Kansas Supreme Court summarily dismissed Evans' direct appeal and filed a mandate on August 25, 2020.

The following year, Evans filed a motion to correct an illegal sentence, arguing the district court improperly calculated his criminal history score because of the misclassification of his prior fleeing or attempting to elude conviction. Evans argued that because this offense had previously been-albeit incorrectly-classified as a nonperson felony, the district court should not have treated it as a person felony in this case. The district court summarily denied the motion because the sentence in Evans' current case was based on his actual criminal history. Evans appealed from the district court's denial of his motion to correct an illegal sentence-as well as the denial of his related motions-and that case is pending before a different panel of this court. See State v. Evans, No. 125,026.

This appeal arises out of the filing of a K.S.A. 60-1507 motion by Evans on August 27, 2021. In his motion, Evans argued that both his trial counsel and appellate counsel were ineffective for not challenging the classification of his prior fleeing or attempting to elude conviction as a person felony. Evans later filed a declaration in support of his K.S.A. 60-1507 motion. In his declaration, Evans argued that the State had previously reduced his fleeing or attempting to elude conviction from a person felony to a nonperson felony.

The State responded to Evans' motion by pointing out that the crime of fleeing or attempting to elude was a person felony in 1999 and that it continues to be a person felony. Although the State acknowledged the misclassification of the fleeing or attempting to elude conviction in prior cases, it asserted that the conviction was properly classified in the underlying case and that Evans was properly sentenced. As a result, the State asserted that neither trial counsel nor appellate counsel could be faulted for not arguing that the scoring mistake should be repeated in this case.

On November 17, 2021, the district court summarily denied Evans' K.S.A. 601507 motion. In doing so, the district court found:

"[Evans] fails to show a deficiency concerning the action of either trial or appellate counsel as it relates to criminal history classification. [Evans'] criminal history was initially scored incorrectly in 2000. However, since then and specific to the underlying criminal case here, the error was discovered and the reclassification of the flee and elude conviction to a person crime was corrected. In fact, [Evans] agreed at sentencing that his criminal history score was B, thereby acknowledging the corrected 'person' designation for the flee and elude. Neither trial nor appellate counsel had or has any legal authority to change the classification. Neither counsel was deficient for not contesting the lawful classification."

Evans then requested reconsideration, alteration, or amendment of the district court's ruling. After the district court denied these requests, Evans filed a timely notice of appeal.

ANALYSIS

Summary Denial of K.S.A. 60-1507 Motion

On appeal, Evans contends that the district court erred in summarily denying his K.S.A. 60-1507 motion and asks that we remand this matter to the district court for an evidentiary hearing. He also asks us to disregard the Kansas Supreme Court's decision in State v. Terrell 315 Kan. 68, Syl. ¶ 2, 504 P.3d 405 (2022), in which our Supreme Court held that all prior convictions are to be classified as person or nonperson as of the time the new crime is committed. In response, the State contends that the district court appropriately dismissed Evans' K.S.A 60-1507 motion because the record conclusively establishes that he is not entitled to relief. In particular, the State points to the fact that his prior conviction for fleeing or attempting to elude a law enforcement officer was not only a person felony in 1999 but continues to be a person felony. As a result, the State asserts that Evans' criminal history score in the underlying case is accurate and, as a result, Evans cannot show that the performance...