State v. Terrell

1

State of Kansas, Appellee, v. Robert Glenn Terrell, Appellant.

No. 122, 680

Supreme Court of Kansas

February 18, 2022

SYLLABUS BY THE COURT

1.

The classification of prior offenses for criminal history purposes involves statutory interpretation, which presents a question of law subject to unlimited appellate review.

2.

Under the Kansas Sentencing Guidelines Act, K.S.A. 2020 Supp 21-6801 et seq., all prior convictions, whether out-of-state pre-guidelines, or amended post-guidelines, are to be classified as person or nonperson as of the time the new crime is committed.

Review of the judgment of the Court of Appeals in 60 Kan.App.2d 39 488 P.3d 520 (2021).

Appeal from Cowley District Court; Nicholas St. Peter, judge. Judgment of the Court of Appeals vacating the judgment of the district court is reversed. Judgment of the district court is affirmed.

Kristen B. Patty, of Wichita, argued the cause and was on the briefs for appellant, and Robert G. Terrell, appellant pro se, was on a supplemental brief.

Natalie Chalmers, assistant solicitor general, argued the cause, and Ian T. Otte, deputy county attorney, and Derek L. Schmidt, attorney general, were with her on the briefs for appellee.

OPINION

Rosen, J.

Robert Glenn Terrell disputes how his criminal history was calculated for sentencing purposes following his plea of guilty to aggravated escape from custody. The Court of Appeals vacated the sentence, and this court granted review.

Factual Background

On November 19, 2018, Terrell entered a plea of guilty to one count of aggravated escape from custody under K.S.A. 2020 Supp. 21-5911(b)(1)(G), a severity level 5 nonperson felony. Terrell's presentence investigation report included an offender registration violation conviction from February 25, 2005, for a crime committed in 2004; the report counted it as a level 10 person felony. Although the registration violation was classified as a nonperson felony at the time of Terrell's guilty plea in 2005, the presentence report reclassified it as a person felony under State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015).

At his sentencing hearing, Terrell, who was representing himself but had standby counsel, objected to the presentence investigation report's reclassification of the 2005 conviction from nonperson to person felony status. He argued that Keel controlled the issue in his favor. The court rejected his argument, stating from the bench:

"Regarding the issue of whether or not his prior conviction for offender registration should be scored as a person or nonperson felony, the court would find that at the time that Mr. Terrell was convicted, this crime was scored as a nonperson felony, as is indicated in the PSI. State v. Keel provided that an offense should be scored as a felony, based upon how it would be determined at the time of the current crime of conviction was committed. In this particular instance, the violation of the Offender Registration Act would be viewed as a person felony as of the day that Mr. Terrell left the Department of Corrections without authorization. And, therefore, the Court would follow the Keel case in this matter and find that it should be scored as a person felony at this time."

The court then imposed a sentence that was a substantial downward durational departure: instead of the standard guidelines sentence of 120 months, the court sentenced Terrell to a prison term of 40 months, with 24 months' postrelease supervision.

Terrell's standby counsel filed a timely notice of appeal to the Court of Appeals. On February 5, 2019, Terrell filed a motion pro se to withdraw his notice of appeal. On the same day, he filed a motion to correct an illegal sentence, asserting, among other claims, that the sentencing court illegally reclassified his 2005 conviction and sentence from nonperson to person. After the trial court denied this motion, Terrell filed further motions seeking reconsideration and additional requests to correct an illegal sentence. He eventually took an appeal from an order denying one of his repeated motions to correct.

In a published opinion, the Court of Appeals vacated the reclassification of Terrell's criminal history. State v. Terrell, 60 Kan.App.2d 39, 488 P.3d 520 (2021). This court granted the State's petition for review. On September 17, 2021, Terrell was released on post-release supervision, but the appeal remains subject to review by this court.

Classification of the 2005 Conviction

The classification of prior offenses for criminal history purposes involves statutory interpretation, which presents a question of law subject to unlimited appellate review. State v. Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018).

Terrell argues that his 2005 conviction for a crime he committed in 2004 should be scored as a nonperson felony, which is how it was designated at the time he committed that crime. The State argues that the 2005 conviction should be scored as a person felony because that is how that crime is now designated. The Kansas Sentencing Guidelines Act, K.S.A. 2020 Supp. 21-6801 et seq., does not explicitly inform the courts whether the score at the time of the original sentence or the score at the time of the new sentence should govern.

The district court, the Court of Appeals, and the parties disagree about whether and how to apply this court's decision in State v. Keel, 302 Kan. 560, to Terrell's situation.

The failure-to-register statute originally designated the crime as a nonperson felony, but the statute was later amended to make the crime a person felony. K.S.A. 2004 Supp. 22-4903 provided: "Any person who is required to register as provided in this act who violates any of the provisions of this act . . . is guilty of a severity level 10, nonperson felony." The statute was amended in 2016 to read that a registration violation "shall be designated as a person or nonperson crime in accordance with the designation assigned to the underlying crime for which the offender is required to be registered under the Kansas offender registration act." K.S.A. 2016 Supp. 22-4903(c)(1). Because the underlying crime was rape-a person felony-Terrell's failure to register would also become a person felony.

A timeline may help clarify the issue:

2002: Terrell pleads guilty and is convicted of rape.

2004: Terrell commits an offender registration violation related to the rape conviction.

2005: Terrell pleads guilty and is convicted of the offender registration violation. The violation was designated a nonperson felony.

2015: The Kansas Supreme Court issues State v. Keel addressing how to score pre-sentencing guidelines convictions.

2016: The offender registration statute is amended to designate a registration violation involving rape as a person felony.

2018: Terrell is charged with and pleads guilty to aggravated escape from custody.

2019: Terrell is sentenced based on a determination that his 2004 violation is now scored as a person felony.

2021: The Court of Appeals determines that the district court improperly transformed the offender registration conviction from a nonperson into a person felony.

In Keel, this court addressed the problem of how to score convictions that preceded the sentencing guidelines act and therefore lacked person or nonperson designations. The resolution reached in Keel was to carry the undesignated pre-KSGA conviction forward in time to when the current crime of conviction was committed and apply the statutory designation in place at that time: "Thus, the classification of a prior conviction or juvenile adjudication as a person or nonperson offense for criminal history purposes under the KSGA is determined based on the classification in effect for the comparable Kansas offense at the time the current crime of conviction was committed." 302 Kan. at 590. This plain language supports the district court's decision to consider the 2004 violation to be a person felony.

Although the district court understood Keel to reclassify a prior conviction according to whatever its classification was at the time of the commission of the new crime, the Court of Appeals held that Keel described a different set of circumstances and did not apply to Terrell's situation. In a broad sense, the Court of Appeals panel was quite correct in distinguishing Keel; Keel addressed the kind of problem with which this court has wrestled over the past two decades-how sentencing courts are to classify crimes that were committed without an explicit person/nonperson designation, such as crimes committed in other states or crimes committed before 1993.

In Keel, the issue was how to classify crimes committed before the sentencing guidelines were enacted in 1993 in the absence of express statutory direction. Keel was decided to address a specific problem-pre-guidelines felonies that did not fit the new sentencing procedures. See Keel, 302 Kan.at 592 (Johnson, J, concurring in part and dissenting in part) (opinion "eliminates the troublesome circumstance of Kansas having no person felonies prior to the enactment of the Kansas Sentencing Guidelines Act").

But the issue in the present case is different. A common-law remedy for a missing classification is not needed here. The Keel court explained the special circumstances of that decision, circumstances that do not apply to Terrell's situation:

"We start out by acknowledging that there is no explicit language in the KSGA telling courts precisely how to classify in-state or out-of-state pre-KSGA convictions or juvenile adjudications as person or nonperson offenses for criminal history purposes. This means we cannot merely interpret text whose meaning and effect are plain." Keel, 302 Kan. at 572.

The Court of Appeals panel relied on several principles to conclude...