State v. King

347 P.3d 240 (Table)

STATE of Kansas, Appellee

v.Andrew KING, Appellant.

111,815.

Court of Appeals of Kansas.

April 24, 2015.

Review Denied Dec. 17, 2015.

Adam T. Carey, of Graybill & Witcher, L.L.P., of Elkhart, for appellant.

Russell W. Hasenbank, county 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:

Andrew King pled no contest to aggravated burglary, a severity level 5 person felony. King's presentence investigation report revealed he had three domestic battery misdemeanor convictions from 1991 and 1992 and one 2009 criminal threat conviction, a person felony, in his criminal history. The three domestic battery misdemeanors were aggregated into a person felony, giving him a “B” criminal history score. King was sentenced to 128 months in prison. He asserts two claims on appeal, both related to the aggregation of his three misdemeanor domestic battery convictions.

First, he contends that because he was unrepresented by counsel in one of the domestic battery cases, the conviction cannot legally be used for purposes of aggregation and subsequent enhancement of his sentence under the Kansas Sentencing Guidelines Act (KSGA). But even assuming he was not represented, the records he submitted in support of his claim established that he was only assessed a fine and no jail term. An uncounseled misdemeanor conviction that does not result in incarceration may be used in determining a defendant's criminal history under the KSGA. State v. Delacruz, 258 Kan. 129, 135–36, 899 P.2d 1042 (1995). So King's first claim fails.

Next, King argues that pursuant to State v. Murdock, 299 Kan. 312, 319, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, his pre–1993 domestic battery convictions should be classified as nonperson misdemeanors because at the time of his conviction they were unclassified. But adopting the analysis used by another panel of this court State v. Waggoner, 51 Kan.App.2d 144, 343 P.3d 530, (2015), petition for rev. filed February 18, 2015, we find that King's pre–1993 domestic battery convictions were properly classified as person misdemeanors.

Factual and Procedural History

King was convicted of aggravated burglary, a severity level 5 person felony, after entering a nolo contendre plea. The facts surrounding King's conviction are not relevant for this appeal. Prior to sentencing, a presentence investigation (PSI) was conducted. The PSI report listed four prior convictions for King—three misdemeanor convictions of domestic battery and one conviction of criminal threat, a severity level 9 person felony. The three domestic battery misdemeanors occurred in 1991 and 1992 and the criminal threat conviction was from 2009. Pursuant to K.S.A. 21–4711(a) (now K.S.A.2014 Supp. 21–6811 [a] ), King's three misdemeanor convictions aggregated to count as one person felony for purposes of calculating criminal history score. The two person felonies in King's criminal history resulted in King receiving a “B” criminal history score.

Prior to sentencing, King moved to withdraw his plea. The district court denied this motion and proceeded to sentence King. The court asked King at the sentencing hearing if he agreed with the criminal history worksheet in his PSI. King responded that he did agree with the criminal history score. The district court then sentenced King to the aggravated sentence of 128 months in prison.

King appealed his sentence arguing the district court erred in denying his motion to withdraw his no contest plea and that the district court erred by using his criminal history to enhance his sentence without requiring a jury to prove it beyond a reasonable doubt. In State v. King, No. 107,887, 2013 WL 1010592 (Kan.App.2013) (unpublished opinion), rev. denied 297 Kan. 1252 (2013), this court affirmed the district court on both issues.

On January 30, 2013—before this court issued its opinion in his direct appeal—King filed a pro se motion to correct an illegal sentence under K.S.A. 22–3504. Approximately a month later, King filed a pro se supplemental motion for correction of an illegal sentence. In both motions, King alleged his criminal history score had been improperly calculated for various reasons, none of which were alleged in his direct appeal. At the same time, King filed a motion for appointment of counsel. The district court denied all of King's pending motions, finding he had “neither a request for which he is entitled to relief nor a request for which relief can be granted” and held King had made no factual allegations that the court can find “could possibly lead to relief.”

More than 6 months later, King filed a pro se request for an evidentiary hearing, essentially reasserting the arguments he made in his earlier motions to correct an illegal sentence. In his motion, King argued again that his criminal history score was improperly calculated because, among other reasons, one of his misdemeanor domestic battery convictions was uncounseled and was therefore constitutionally invalid and should not be used to aggregate his misdemeanors into a person felony. Attached to his motion, King included a print-out from the Municipal Court of the City of Liberal, Kansas, that provided information regarding his 1992 domestic battery conviction. The district court again denied King's motion and noted that any future motions would be returned unfiled. King timely appealed the denial of his motion for an evidentiary hearing. During the pendency of his appeal, the Kansas Supreme Court issued its decision in State v. Murdock. King filed another pro se motion to correct an illegal sentence, specifically asserting his pre-KSGA misdemeanors were improperly classified pursuant to Murdock. The district court took no action on that motion.

Analysis

King may challenge the calculation of his criminal history score .

The State argues King waived his right to appeal his criminal history score because he agreed to the accuracy of his history score during the sentencing hearing and because he failed to raise the issue on direct appeal.

Generally, a defendant must raise all available issues on direct appeal. See State v. Neer, 247 Kan. 137, 140–41, 795 P.2d 362 (1990). When an appeal is taken from the sentence imposed and/or conviction, “the judgment of the reviewing court is res judicata as to all issues actually raised, and those issues that could have been presented, but were not presented, are deemed waived.” 247 Kan. at 140–41.

Pursuant to K.S.A. 22–3504(1), however, a court “may correct an illegal sentence at any time.” The Kansas Supreme Court has defined an illegal sentence as one “ ‘imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served.’ “ State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011).

In Neal, the defendant filed a motion to correct an illegal sentence under K.S.A. 22–3504 claiming one of his misdemeanor convictions was constitutionally invalid and therefore could not be used in aggregating his misdemeanors into a person felony. The K.S.A. 22–3504 motion was filed after the defendant's direct appeal was final. Although the defendant's direct appeal dealt with claimed errors in his criminal history score, the aggregation issue was not asserted. The Kansas Supreme Court held the aggregation issue was an illegal sentence challenge that could be brought in a K .S.A. 22–3504 motion and that even though he did not raise the issue on direct appeal, a motion to correct illegal sentence “is not subject to [the] general rule that a defendant must raise all available issues on direct appeal.” 292 Kan. at 631.

Additionally, a panel of this court recently dealt with this issue under the “invited error doctrine.” See State v. Ruiz, 51 Kan.App.2d 212, 343 P.3d 544 (2015). In Ruiz, the defendant challenged his criminal history score as illegal under Murdock. The State argued the defendant invited any error concerning his criminal history score calculation by stipulating to the existence of his criminal history at the sentencing hearing. In addressing the invited error doctrine, this court distinguished between challenges to the factual existence of convictions and challenges to the legal effect of the criminal history score. Ruiz, 51 Kan.App.2d at 231–32. This court held that a stipulation to the existence of criminal convictions would bar future appeals on that matter under the invited error doctrine, but a stipulation did not bar fixture challenges to the legal effect of the criminal history calculation. This court determined that Ruiz was not challenging the factual existence of his prior conviction, but rather the effect the classification of those convictions had on the accuracy of his criminal history score. This court cited Neal, finding when a criminal history score is incorrect, the resulting sentence is illegal and is subject to K.S.A. 22–3504. Ruiz, 51 Kan.App.2d at 232–33. We agree with and adopt the panel's analysis in Ruiz.

In the present case, King's direct appeal concerned the denial of his motion to withdraw his plea and the issue of whether his criminal history score could be used to enhance his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). His K.S.A. 22–3504 motion deals with the exact issue raised in Neal, whether an uncounseled misdemeanor can be used to aggregate his misdemeanor convictions into a person felony for criminal history purposes. The issues in his collateral appeal are not the same as his direct appeal and therefore are not barred by res judicata.

The State attempts to distinguish King's case from Neal asserting King did not object to his criminal history score at the sentencing hearing and in Neal, “ ‘counsel...