State v. Morgan

1

State of Kansas, Appellee, v. Larry L. Morgan, Appellant.

No. 125,882

Court of Appeals of Kansas

August 30, 2024

NOT DESIGNATED FOR PUBLICATION

Appeal from Douglas District Court; SALLY D. POKORNY, judge.

Submitted without oral argument.

Sentence vacated and case remanded with directions.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Brian Deiter, assistant district attorney, Suzanne Valdez, district attorney, and Kris W. Kobach, attorney general, for appellee.

Before CLINE, P.J., ATCHESON and PICKERING, JJ.

MEMORANDUM OPINION

PICKERING, J.

On appeal, Larry L. Morgan challenges the legality of his sentence. Prior to his sentencing, Morgan had asserted that several of his prior convictions from Iowa should have been scored as nonperson misdemeanors rather than person misdemeanors, and thus he should have a lower criminal history score. At sentencing, the State argued against Morgan's assertions but did not produce additional evidence in support of Morgan's out-of-state convictions. The district court denied Morgan's criminal history score objection. After reviewing the record, we vacate Morgan's sentence and remand for the district court to resentence him with his correct criminal history score.

FACTUAL AND PROCEDURAL BACKGROUND

In 2022, Morgan pleaded no contest to one charge of criminal threat for acts committed in October 2021. In the presentence investigation (PSI) report, Morgan's criminal history was scored as A. Seven of Morgan's prior convictions from Iowa were scored as person misdemeanors: four assault convictions (two committed in 2021, one committed in 2013 and one committed in 2012), two contempt convictions (committed in 2013), and one false imprisonment conviction (committed in 2013). Those convictions corresponded to entries 2, 9, 53, 54, 55, 57, and 64 in the PSI report. Entries 2 and 9 cited Iowa Code § 708.2 and described the convictions as "Serious Assault Causing Bodily Injury or Mental Illness." Entry 53 cited Iowa Code § 710.7 and described the conviction as "False Imprisonment." Entry 54 cited Iowa Code § 708.2A and described the conviction as "Domestic Assault Causing Injury." Entries 55 and 57 cited Iowa Code § 664A.7 and described the convictions as "Contempt-Violation of a No Contact Order or Protective Order." Entry 64 cited Iowa Code §§ 708.1 and 708.2 and described the conviction as "Assault Causing Bodily Injury." Entries 9, 53, 54, 55, 57, and 64 were converted to two person felonies pursuant to K.S.A 21-6811(a).

The PSI report also listed five other Iowa assault convictions which were unscored. Entries 19 and 23 cited Iowa Code § 708.2 and described the convictions as "Assault." Entries 58, 59, and 60 cited Iowa Code § 708.1 and described the convictions as "Simple Assault."

Two weeks before sentencing, Morgan objected to entries 2, 9, 19 23, 36, 49, 54, 55, 57, 58, 59, 60, 64, and 78 in the PSI report. He asserted that those entries should be reclassified as nonperson misdemeanors and that his criminal history score should be C. Morgan argued that Iowa Code § 708.1 applied to all of his assault convictions because Iowa Code § 708.2 was a penalty statute, rather than a criminal elements statute. He asserted that because the PSI report did not list a subsection for any of his convictions, Iowa Code § 708.1 in its entirety had to be compared to K.S.A. 21-5412, Kansas' assault statute. Because Iowa Code § 708.1 is broader than Kansas' assault statute, Morgan argued that his Iowa convictions had no Kansas comparator and could not be scored as person misdemeanors.

The State filed a response to Morgan's objection to the PSI report. The State pointed out that Iowa Code § 708.2(2) classifies assault causing bodily injury or mental illness as a serious misdemeanor. The State contended that Iowa treats assault and battery as different degrees of the same crime. Thus, the State explained, Iowa Code § 708.2 applied to some of Morgan's assault convictions. The State also argued that while Iowa's assault statute is broader than Kansas', it was "clear that a number of the Defendant's Iowa convictions were for conduct prohibited under the subsections of the Iowa assault statute requiring bodily harm as an element." As a result, the State contended, the assault convictions in entries 2, 9, 54, and 64 were comparable to Kansas' battery statute.

As to the contempt convictions, the State asserted that the convictions in entries 55 and 57, charged under Iowa Code § 664A.7, were comparable to K.S.A. 2021 Supp. 215924. The State claimed that both statutes required a valid protective order in place and contact by the defendant with the protected party in violation of the order, the only difference being that Iowa required a higher level of intent to violate the order.

At the sentencing hearing on November 16, 2022, Morgan continued with his arguments against the proposed criminal history score. He argued that the State "used titles and inferences" to score his Iowa assault convictions. He also argued that the PSI report did not list subsections for Morgan's assault convictions and the Iowa assault statutes were broader than Kansas' assault statutes. Under Morgan's argument, his Iowa contempt convictions were not misdemeanors, explaining how the "Iowa offense makes it clear it's a contempt, not comparable to our misdemeanor violation of a protection order."

The State responded that the levels of assault which Morgan was convicted of were in the description sections in the PSI report. Discussing entries 2 and 9 in the PSI report, the State noted that Iowa Code § 708.2(2) describes assault under Iowa Code § 708.1 that causes bodily injury or mental illness as a serious misdemeanor, and the PSI report listed those assaults as bodily injury or mental illness. Thus, the district court could "pretty much infer that [Morgan's convictions fell] under subsection 2 of 708.2." The State also argued that because Morgan had convictions for contempt "of a court order for no contact . . . as opposed to regular contempt," those convictions should count in his criminal history.

During the hearing, the preparer of the PSI report informed the State that she had the journal entries of Morgan's assault convictions that listed the subsections for each conviction. The State did not know beforehand that it possessed the journal entries. The State did not introduce the journal entries as evidence.

The district court found Iowa Code § 708.1(2)(b) comparable to Kansas' assault statute. The district court stated that the Iowa statute "lists more things that could be bodily harm, but the bottom line is it would be . . . fear of physical contact" that "could cause painful, injurious, insulting or offensive harm, but it's the same as immediate bodily harm." Therefore, the court counted Morgan's assault convictions listed under Iowa Code § 708.2 as person misdemeanors.

The district court also counted Morgan's conviction for domestic assault under Iowa Code § 708.2A as a person misdemeanor. The court stated that Iowa's statute is "different than our statute, but it's expressly the same acts, an act which causes bodily injury, and we consider it battery, and they are calling it assault, causing bodily injury." Therefore, the court stated that it was "going to find that the same with domestic assault causing bodily injury, that those should all be scored."

The district court denied Morgan's objection to his criminal history and calculated his criminal history score as A. The court granted Morgan's motion for departure, sentencing Morgan to a 16-month underlying prison sentence but granting 12 months of probation. This appeal followed.

ANALYSIS

We do not find this case moot.

After this case was conferenced, we issued a show cause order requesting both parties to advise if this case was moot. Specifically, we requested that the State advise us of Morgan's current custodial status and directed the parties to address why the appeal should not be dismissed as moot.

We review mootness questions de novo. State v. Roat, 311 Kan. 581, 590, 466 P.3d 439 (2020). Generally, Kansas appellate courts do not decide moot questions or render advisory opinions. State v. McKnight, 292 Kan. 776, 778, 257 P.3d 339 (2011). "Mootness occurs when circumstances, such as completing a sentence, would render a judicial decision ineffectual to a party's vital rights." State v. Wilson, 319 Kan. ___, 2024 WL 3543894, at *3. A case is determined to be moot "after a clear and convincing showing 'that the actual controversy has ended, that the only judgment that could be entered would be ineffectual for any purpose, and that it would not have an impact on any of the parties' rights.'" (Emphasis added.) Wilson, 319 Kan. at ___, 2024 WL 3543894, at *3.

From the parties' responses, it remains unclear whether Morgan has completed his sentence. As such, without a "clear and convincing showing" that the actual controversy has ended, and is thus moot, we render this judicial decision. Wilson, 319 Kan. at ___, 2024 WL 3543894, at *3.

The State Failed to Meet Its Burden in Proving the Classifications of Morgan's Prior Convictions

Standard of Review

"An appellate court reviews a district court's decision that the State met its burden to prove the classification of a prior conviction for substantial competent evidence." State v. Corby, 314 Kan. 794, 796, 502 P.3d 111 (2022). To the extent that statutory interpretation is required, our review is unlimited. If the statutory language is plain and unambiguous, we apply such language as written. State v. Kerrigan, 317 Kan. 683, 686, 538 P.3d 852 (2023).

Analysis

On appeal, Morgan argues that the State failed to meet its burden to prove the classifications of his Iowa...