State v. Martinez-Guerrero

501 P.3d 378 (Table)

STATE of Kansas, Appellee,

v.Frank Julian MARTINEZ-GUERRERO, Appellant.

No. 123,447

Court of Appeals of Kansas.

Opinion filed January 7, 2022.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Tyler B. Pettigrew, assistant county attorney, Susan L. Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.

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

MEMORANDUM OPINION

Powell, J.:

Frank Julian Martinez-Guerrero pleaded guilty to aggravated domestic battery, a severity level 7 person felony, and was sentenced to a presumptive sentence according to the severity level of his crime and his criminal history score. Martinez-Guerrero now appeals his sentence, arguing his prior 2018 conviction of criminal threat should not have been included in his criminal history, making his criminal history score incorrect and his sentence illegal. He contends the State was required to prove his prior conviction was for intentional criminal threat but failed to do so. After a careful review of the record, we agree with Martinez-Guerrero. We therefore vacate his sentence and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On February 26, 2020, Martinez-Guerrero pled guilty (the journal entry of judgment erroneously shows the no-contest box checked) to one count of aggravated domestic battery for acts committed in December 2019. A presentence investigation (PSI) report was filed, calculating Martinez-Guerrero's criminal history score as A based upon three prior criminal threat convictions. Martinez-Guerrero filed an objection to the score.

At sentencing on July 20, 2020, Martinez-Guerrero again objected to the scoring of his three prior criminal threat convictions. He argued the State could not prove that the threats serving as the basis for these convictions were intentional ones, which rendered the convictions illegal and, therefore, unable to be used in the calculation of his criminal history score.

The district court agreed, in part, and found that two of Martinez-Guerrero's prior criminal threat convictions—19 CR 309 and 17 JV 6—should be excluded. For the remaining conviction—18 CR 469, a 2018 conviction from Finney County—the PSI report did not specify if Martinez-Guerrero was convicted of intentional or reckless criminal threat. Thus, the district court looked at the plea transcript from that conviction in an attempt to discern which version of the statute was applicable to the crime.

According to the plea transcript from 18 CR 469, Martinez-Guerrero pled no contest to "unlawfully and feloniously commit[ing] a threat to commit violence with the intent of placing Jason Chase [a law enforcement officer] in fear or with reckless disregard of causing such fear." At that plea hearing, the State provided the following factual basis:

"[W]e would present evidence that the Garden City Police Department sent officers to a residence on Chesterfield here in Garden City, Finney County, Kansas, on October 27th of 2018. At that time they were looking for Mr. Martinez. That they had contact with him in the home. That during that confrontation that he had with law enforcement, he did threaten to shoot Jason Chase. That he said that during this altercation they had with him in reference to him not complying to their orders for him to come forward as they did have a warrant to arrest him. That this all occurred in and around the residence on that Chesterfield Street."

When arguing this prior criminal threat conviction should be included in Martinez-Guerrero's criminal history score calculation, the State argued:

"Your Honor, on [case] 18 CR 469, we are arguing that in fact it does count because of the situation involving the facts in this case. He is being arrested. He does state to the law enforcement officer that he's going to shoot him. That—that is a direct threat to the officer at the time. It's not some, oh, I randomly spoke something in the general population. He was directing that statement directly to Officer Chase at the time when he was highly agitated. That indicates that it was done—it was not done recklessly. So we believe that the—the conviction in the—that case should count on his criminal history."

The district court held that Martinez-Guerrero was challenging the sufficiency of the evidence of the prior conviction and, therefore, reviewed "the facts in the light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt" of the intentional criminal threat. In so doing, the district court held that the 2018 criminal threat conviction could be included in Martinez-Guerrero's criminal history score because the facts presented established beyond a reasonable doubt that Martinez-Guerrero wanted Chase to believe that he intended to act violently. The district judge elaborated:

" State v. Williams , 303 Kan. [at] 762 and 763 indicates the Court's belief that intent can be inferred from circumstances presented. The uncontroverted facts in this case, evidence that the language Martinez used and the circumstances in which he threatened to shoot Officer Chase [establish] beyond a reasonable doubt that he wanted Chase to believe that the defendant intended to act violently and provide proof beyond a reasonable doubt of every fact necessary to constitute the crime of criminal threat in that he intended to place Officer Chase in fear when he communicated his threat to shoot him.

"I will therefore find the conviction of the level 9 person felony crime of criminal threat in 18 CR 469 places the defendant in the D criminal history category ...."

Accordingly, the district court sentenced Martinez-Guerrero to a presumptive sentence of 24 months in prison but placed him on probation from that sentence for a period of 24 months.

Martinez-Guerrero timely appeals.

DID THE DISTRICT COURT CORRECTLY CALCULATE MARTINEZ-GUERRERO'S CRIMINAL HISTORY SCORE ?

Martinez-Guerrero argues the district court erred in calculating his criminal history score as D when it included his 2018 criminal threat conviction in his criminal history. Had Martinez-Guerrero's prior criminal threat conviction not been included in his criminal history and classified as a person felony, his criminal history score would have been I, which would have resulted in a lower presumptive sentencing range. See K.S.A. 2020 Supp. 21-6804(a) ; K.S.A. 2020 Supp. 21-6809.

Standard of Review

A challenge to a district court's criminal history score calculation is an illegal sentence claim, which is a question of law over which we exercise unlimited review. State v. Roberts , 314 Kan. ––––, 498 P.3d 725, 728 (2021).

Analysis

Before delving into Martinez-Guerrero's arguments, some background on criminal threat convictions is necessary. In State v. Boettger , 310 Kan. 800, 822, 450 P.3d 805 (2019), the Kansas Supreme Court held that reckless criminal threat under K.S.A. 2018 Supp. 21-5415(a)(1) was unconstitutional. And K.S.A. 2020 Supp. 21-6810(d)(9) prohibits a district court from using a prior conviction that has "since been determined unconstitutional by an appellate court" to calculate a defendant's criminal history score. The Kansas Supreme Court decided Boettger on October 25, 2019, before Martinez-Guerrero was sentenced on July 20, 2020.

"The legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence was pronounced [and] is fixed at a discrete moment in time—the moment the sentence was pronounced." State v. Murdock , 309 Kan. 585, 591, 439 P.3d 307 (2019). Thus, when the district court calculated Martinez-Guerrero's criminal history score and pronounced sentence, a reckless criminal threat conviction was unconstitutional, so the inclusion of any prior criminal threat convictions in Martinez-Guerrero's criminal history would not have been proper unless the State could prove that they were for intentional criminal threats. Therefore, the question before us is whether Martinez-Guerrero's prior 2018 criminal threat conviction was for an intentional criminal threat.

Martinez-Guerrero advances two arguments in support of his claim that the district court improperly calculated his criminal history score. First, he argues the district court applied the improper standard of proof in determining if the criminal threat conviction should have been included in his criminal history. Second, he argues the district court erred in finding that the State proved his 2018 criminal threat conviction was an intentional criminal threat.

A. The State must prove a prior conviction by a preponderance of the evidence.

At sentencing, the district court correctly framed the question before it as whether the 2018 threat was communicated with the intention to place another in fear. As part of its examination, the district court described the State's burden of proof in that inquiry as a challenge to the sufficiency of the evidence of the prior conviction, in which "the facts [are reviewed] in the light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty [of intentional criminal threat] beyond a reasonable doubt." This burden of proof is incorrect.

Martinez-Guerrero was not challenging the sufficiency of the evidence of his prior conviction per se. Rather, he was challenging whether his 2018 conviction for criminal threat was a constitutionally valid conviction and, therefore, scorable in his criminal history. In State v. Obregon , 309 Kan. 1267, 1275, 444 P.3d 331 (2019), the Kansas Supreme Court held that the State bears the burden of proving a defendant's criminal history by a preponderance of the evidence. See K.S.A. 2020 Supp. 21-6814 ; see also State v. Louis , 59 Kan. App. 2d 14, 25, 476 P.3d 837 (2020) (applying preponderance of evidence standard to challenge of using prior criminal threat conviction in criminal history score calculation). Thus, the district court did...