State v. Brown

1

State of Kansas, Appellee, v. Lewis Brown, Appellant.

Nos. 123, 578 123, 579

Court of Appeals of Kansas

January 7, 2022

NOT DESIGNATED FOR PUBLICATION

Appeal from Harvey District Court; Marilyn M. Wilder, judge.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Jodi Liftin, assistant solicitor general, and Derek Schmidt attorney general, for appellee.

Before Powell, P.J., Atcheson, J. and Richard B. Walker, S.J.

MEMORANDUM OPINION

PER CURIAM

The Harvey County District Court revoked Defendant Lewis Brown's probation in two cases and ordered that he serve a modified prison sentence for robbery in one and the original sentence for criminal threat in the other. Brown has appealed on the grounds his criminal history was incorrectly overstated at his original sentencing, resulting in terms of imprisonment he can now challenge as illegal. We agree with Brown that his 1998 Missouri conviction for robbery was improperly treated as a person felony for criminal history purposes in both cases. We, therefore, vacate the sentences and remand these cases to the district court for resentencing.

In a single hearing in March 2019, Brown pleaded no contest to robbery in one case and criminal threat in a second case. The district court imposed consecutive prison terms of 128 months on the robbery conviction and 15 months on the criminal threat conviction and, consistent with a plea agreement placed Brown on probation. Brown violated the terms of his probation. The circumstances of the underlying crimes and the probation violation are irrelevant to this appeal. The district court revoked Brown's probation on May 19, 2020 and ordered him to serve a modified sentence of 75 months for the robbery consecutive to the original 15-month sentence for the criminal threat. Brown has appealed.

Legal Analysis

As we have indicated, on appeal, Brown does not dispute the district court's decision to revoke his probation. He challenges how his criminal history score was determined in these two cases and argues the sentences the district court ultimately imposed are too long.

A defendant may challenge an illegal sentence at any time while he or she is serving the sentence. K.S.A. 2020 Supp 22-3504(a). A sentence is illegal if it does not conform to the governing statutory requirements, including those directing how criminal histories should be determined. K.S.A. 2020 Supp. 22-3504(c)(1); State v. Dickey, 305 Kan. 217, 220, 380 P.3d 230 (2016). Brown may raise the point now, even though he did not challenge his criminal history or the underlying sentences when the district court imposed them. The State agrees that procedurally this issue is properly before us.

The district court determined Brown had a criminal history score of B, based on two person felony convictions. In both cases, the district relied on Brown's 1998 Missouri conviction for first-degree robbery as one of the predicate felonies. And in each case, the district court relied on the other case as the second predicate felony-the criminal threat conviction was scored in Brown's criminal history in the Kansas robbery case; and the Kansas robbery conviction was scored in his criminal history for the criminal threat case.

Based on when Brown committed the crimes of conviction in these two cases, the parties agree the rule established in State v. Wetrich, 307 Kan. 552, 561-62, 412 P.3d 984 (2018), applies to his criminal history calculation, so any out-of-state felony conviction must proscribe the same or narrower conduct as the comparable Kansas crime to be scored as a person felony. If the elements of the out-of-state crime are broader, then the conviction should be treated as a nonperson felony for criminal history purposes. Person felonies increase a defendant's presumptive guidelines sentence more than nonperson felonies, so the classification is legally significant.

Missouri Robbery Conviction

In 1998, a person would be guilty of robbery in the first degree in Missouri if he or she:

"forcibly steals property and in the course thereof . .

"(1) Causes serious physical injury to any person; or

"(2) Is armed with a deadly weapon; or

"(3) Uses or threatens the immediate use of a dangerous instrument against any person; or

"(4) Displays or threatens the use of what appears to be a deadly weapon or dangerous instrument." Mo. Rev. Stat. § 569.020.1 (1998).

Robbery in the first degree is a felony. The key to our discussion is its classification as a person or nonperson felony. And central to that determination, "forcibly steals" was and is statutorily defined in Missouri to include the use of force for "the retention [of property] immediately after the taking." Mo. Rev. Stat. § 569.010(1) (1998).

In keeping with that definition, Missouri courts hold that robbery includes a completed theft accomplished without force or threat of force, if the thief then threatens or uses the proscribed force to get away with the property. See Wallace v. State, 573 S.W.3d 136, 145 (Mo. App. 2019); State v. Whittaker, 551 S.W.3d 498, 501-02 (Mo. App. 2018); State v. Harris, 622 S.W.2d 742, 744-45 (Mo. App. 1981). A common scenario entails a shoplifter who resorts to force to escape with the stolen merchandise when confronted outside a store by security officers. See Whittaker, 551 S.W.3d at 502-04 (stating rule and surveying cases); see also Harris, 662 S.W.2d at 744-45.

For criminal history purposes, the comparable Kansas crimes would be robbery or aggravated robbery codified in K.S.A. 2017 Supp. 21-5420:

"(a) Robbery is knowingly taking property from the person or presence of another by force or by threat of bodily harm to any person.

"(b) Aggravated robbery is robbery, as defined in subsection (a), when committed by a person who:

"(1) Is armed with a dangerous weapon; or

"(2) inflicts bodily harm upon any person in the course of such robbery."

In contrast to Missouri, the Kansas appellate courts have repeatedly recognized that a thief's threat or use of force to escape after taking control of someone else's property does not make the theft a robbery. State v. Plummer, 295 Kan. 156, 168, 283 P.3d 202 (2012); State v. Bateson, 266 Kan. 238, 246-47, 970 P.2d 1000 (1998); State v. Aldershof, 220 Kan. 798, Syl. ¶ 3, 556 P.2d 371 (1976) ("Robbery is not committed where the thief has gained peaceable possession of the property and uses no violence except to resist arrest or to effect his escape."). The threat or use of force may itself constitute an assault or battery or the corresponding aggravated felony versions of those crimes, distinct from and in addition to the theft. Bateson, 266 Kan. at 246-47; Aldershof, 220 Kan. at 804.

The facts in Aldershof sharply illustrate the difference between Kansas and Missouri law on this point. While in a dimly lit Wichita club, Aldershof filched the purses of two female patrons and left the establishment. One of the women confronted Aldershof in the parking lot. He punched her in the face and drove off in a pickup. The court held that the facts established a theft rather than a robbery because Aldershof had secured possession of and exercised dominion over the purses before the physical confrontation. 220 Kan. at 803-04.

In short, Missouri's robbery in the first degree criminalizes a broader range of conduct than does the Kansas statute defining robbery and aggravated robbery. Under Wetrich, Brown's 1998 Missouri conviction, therefore, must be scored as a nonperson felony for criminal history purposes. As a result, the district court overstated Brown's criminal history in sentencing him on both Kansas convictions for robbery and criminal threat on which his probation was revoked. Two other panels of this court have considered the same issue and have come to the same conclusion on how Missouri robbery convictions should be scored in a defendant's criminal history. See State v. Weston, No. 122, 320, 2021 WL 1945153, at *6 (Kan. App. 2021) (unpublished opinion); State v. Kanatzar, No. 119, 399, 2020 WL 593965, at *12 (Kan. App. 2020) (unpublished opinion), rev. denied 313 Kan. 1044 (2021).

Alternatively, the State contends the Kansas statutes criminalizing misdemeanor and aggravated assault, misdemeanor battery and aggravated battery, or criminal threat should be compared to the Missouri robbery statute in applying the Wetrich rule. We find the tersely presented argument unpersuasive for several reasons.

First, Wetrich appears to begin with the identification of a Kansas criminal statute that is roughly similar to the out-of-state conviction in the sense of proscribing the same general actus reus or bad conduct undertaken with a more or less common mens rea or bad intent. A court then compares the elements of the out-of-state crime with the identified Kansas crime to determine if they are the same or narrower, meaning the foreign conviction can be scored as a person felony for criminal history purposes. In Wetrich, the court identified and then compared Missouri and Kansas burglary statutes. After finding the Missouri statute to be broader than the Kansas statute, the court did not look at other possible comparators, such as criminal trespass.

Here the Missouri and Kansas robbery statutes criminalize markedly similar conduct in that both prohibit the taking of property from another through a threat, display, or use of force, including weapons. The crimes do differ in some relatively minor respects, and the Missouri crime is broader than the Kansas crime. Those determinations, however, conclude the Wetrich inquiry and define the outcome for criminal history purposes. The process does not then extend to Kansas crimes that are demonstrably less like Missouri's robbery statute. The State's effort to shift the...