State v. Phipps

539 P.3d 227

STATE of Kansas, Appellee,

v.Jason W. PHIPPS, Appellant.

No. 125,269

Court of Appeals of Kansas.

Opinion Filed October 20, 2023.

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

Natalie Chalmers, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee.

Before Schroeder, P.J., Malone, J., and Mary E. Christopher, S.J.

Malone, J.:

Jason W. Phipps appeals his sentences following his no contest pleas to two felonies and two misdemeanors. Phipps objected to his criminal history score, arguing that his prior Kansas conviction for criminal threat could not be included in his criminal history because the State failed to show the conviction was based only on intentional conduct. The district court denied his objection and sentenced Phipps using a criminal history score of B. On appeal, Phipps claims the district court's ruling is contrary to the Kansas Supreme Court's decision in State v. Boettger , 310 Kan. 800, 823, 450 P.3d 805 (2019), holding the reckless criminal threat provision of K.S.A. 2018 Supp. 21-5415(a)(1) unconstitutionally overbroad. The State argues, and we agree, that the Kansas Supreme Court's holding in Boettger has been effectively overruled by the United States Supreme Court in Counterman v. Colorado , 600 U.S. 66, 69, 143 S. Ct. 2106, 216 L. Ed. 2d 775 (2023). Thus, we find the district court did not err by using Phipps' prior criminal threat conviction to calculate his criminal history score.

Phipps also claims the district court violated K.S.A. 2022 Supp. 21-6819(b) by ordering him to serve his misdemeanor sentences in the county jail consecutive to his felony sentences, contrary to the statute's double rule that limits the total prison sentence imposed in multiple conviction cases. But we find that K.S.A. 2022 Supp. 21-6819 applies only to felony sentences and not to misdemeanor sentences. Thus, we reject Phipps' statutory construction argument and affirm the district court's judgment.

FACTS

On April 4, 2022, Phipps pleaded no contest to burglary of a vehicle and theft of a firearm—both severity level 9 nonperson felonies—and two misdemeanors—theft and criminal trespass. Phipps committed these crimes on January 3, 2022. Phipps' presentence investigation (PSI) report calculated a criminal history score of B, based in part on a 2010 Kansas conviction for criminal threat.

Phipps objected to the criminal history score and argued that his prior criminal threat conviction could not be used for criminal history purposes because the PSI report did not establish whether his conviction was for intentional or reckless criminal threat. Because the Kansas Supreme Court in Boettger had invalidated the portion of Kansas' criminal threat statute proscribing reckless criminal threats as unconstitutional, and because Kansas law forbids convictions arising under statutes that have since been found unconstitutional from being used for criminal history purposes, Phipps argued that his prior criminal threat conviction could not be included in his criminal history score absent proof that his conviction was for intentional criminal threat.

The district court held a hearing on Phipps' criminal history objection, and the State presented a transcript of Phipps' 2010 plea hearing describing the factual basis for his no contest plea to criminal threat. The transcript reflected that Phipps went to a woman's home and demanded that she open a gun safe. When she refused, Phipps said, " ‘You will if you have a gun to your head.’ " Phipps also asked her if she wanted to die there and said that other people were going to die. The district court found that the factual basis for the plea supported a conviction of both intentional and reckless criminal threat. As a result, the district court determined the criminal threat conviction was properly scored as a person felony and overruled Phipps' objection to his criminal history score.

On June 13, 2022, the district court sentenced Phipps to 14 months' imprisonment for burglary of a vehicle, 6 months' imprisonment for felony theft of a firearm, 12 months in the county jail for misdemeanor theft, and 6 months in the county jail for misdemeanor criminal trespass, with all sentences to run consecutive, for a controlling sentence of 20 months with the Kansas Department of Corrections (KDOC) followed by 18 months in the county jail. Phipps timely appealed the district court's judgment.

DID THE DISTRICT COURT ERR IN SCORING PHIPPS' PRIOR CRIMINAL THREAT CONVICTION ?

Phipps' appellate brief claims the district court erred by using his prior criminal threat conviction to calculate his criminal history score, resulting in an illegal sentence, because the State failed to prove the conviction was based only on intentional conduct. He argues that his prior criminal threat conviction may have stemmed from a reckless criminal threat found unconstitutional in Boettger . Phipps asserts the district court engaged in improper judicial factfinding when it found that the prior criminal threat conviction was based on intentional conduct. He asks us to vacate his sentences and remand for resentencing with a criminal history score of D.

The State's brief, filed in April 2023, argues that reckless criminal threat is not unconstitutional and points out that the United States Supreme Court was addressing the issue in the then-pending case of Counterman v. Colorado . The brief also argues that Phipps' criminal history challenge is moot because he has already completed the prison portion of his sentence. On the merits, the State argues that Phipps' criminal history was correctly calculated because his no contest plea established that his prior criminal threat conviction was based on both intentional and reckless conduct, and the statute does not require the State to prove that Phipps' conduct was only intentional. Finally, the State argues that Phipps should not be allowed to collaterally attack the constitutional validity of his prior criminal threat conviction through a challenge to his criminal history score.

Phipps filed a reply brief addressing the State's mootness claim but not the State's argument about Counterman . The State filed a Supreme Court Rule 6.09 (2023 Kan. S. Ct. R. at 40) letter of additional authority when the Counterman decision was issued, asserting that the decision effectively overrules Boettger and eliminates any concerns over the constitutionality of Phipps' prior criminal threat conviction. Phipps did not respond to the letter of additional authority as permitted under Rule 6.09(d).

Given that Counterman was filed after briefing was completed, this court directed the parties to file supplemental briefing on (1) whether Counterman effectively overrules Boettger and (2) whether the holding in Counterman applies to Phipps' criminal history challenge on direct appeal. Phipps' supplemental brief answers no to both questions. As to the first question, Phipps argues that Counterman is readily distinguishable because the Colorado statute addressed in that case is different from the Kansas reckless criminal threat statute declared unconstitutional in Boettger . He adds that even if the effect of Counterman is that the Kansas reckless criminal threat provision does not violate the First Amendment to the United States Constitution, the provision violates section 11 of the Kansas Constitution Bill of Rights. As to the second question, Phipps argues that because reckless criminal threat had been declared unconstitutional in Boettger at the time he committed his current crimes, any change in the law cannot affect his sentence.

The State reasserts its previous argument that based on the holding in Counterman , the "reckless disregard" portion of the Kansas criminal threat statute does not violate the First Amendment—contrary to the holding in Boettger —and eliminates any concerns over the constitutionality of Phipps' prior criminal threat conviction. The State also argues that the holding in Counterman applies to Phipps' criminal history challenge and sentence which is pending on direct appeal and not final.

Phipps' criminal history challenge presents an illegal sentence claim subject to unlimited appellate review. State v. Roberts , 314 Kan. 316, 319-20, 498 P.3d 725 (2021). Resolution of the parties' arguments requires us to examine the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2022 Supp. 21-6801 et seq. Statutory interpretation presents a question of law over which appellate courts have unlimited review. State v. Stoll , 312 Kan. 726, 736, 480 P.3d 158 (2021).

This appeal presents a criminal history challenge.

Before addressing the parties' arguments, we will review how a defendant's sentence is determined under the KSGA. Under the KSGA, a defendant's sentence depends on the severity of the crime of conviction and the defendant's criminal history score.

K.S.A. 2022 Supp. 21-6804(d). The severity level for every felony crime in Kansas is determined by the Legislature and is fixed for sentencing purposes as of the date the offender commits the crime. See K.S.A. 2022 Supp. 21-6807 (crime severity scale for nondrug crimes); K.S.A. 2022 Supp. 21-6808 (crime severity scale for drug crimes). The defendant's criminal history is admitted in open court by the offender or determined by a preponderance of the evidence at the sentencing hearing by the sentencing judge. K.S.A. 2022 Supp. 21-6814(a). It is not fixed for sentencing purposes as of the date the offender commits the crime. K.S.A. 2022 Supp. 21-6810(a). The State bears the burden to prove a defendant's criminal history at sentencing. The State can satisfy this burden by preparing a PSI report. K.S.A. 2022 Supp. 21-6814(b). But if the defendant identifies an error and provides a written objection to the PSI report, then the State must prove the disputed portion of the defendant's criminal history. See K.S.A. 2022 Supp. 21-6814(c).

Generally, all prior convictions must be counted in determining...