State v. Waggoner

343 P.3d 530, 51 Kan. App. 2d 144, 2015 Kan. App. LEXIS 7
CourtCourt of Appeals of Kansas
DecidedJanuary 30, 2015
DocketNo. 111,548
StatusPublished
Cited by5 cases

This text of 343 P.3d 530 (State v. Waggoner) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Waggoner, 343 P.3d 530, 51 Kan. App. 2d 144, 2015 Kan. App. LEXIS 7 (kanctapp 2015).

Opinion

Malone, C.J.:

Eric Waggoner appeals his sentence following his convictions of possession of methamphetamine and marijuana. Waggoner argues that, in light of our Supreme Court’s decision in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014) (modified by Supreme Court order September 19,2014), the district court erred in classifying his prior Kansas juvenile adjudication of attempted aggravated battery as a person felony for criminal history purposes. In Murdock, our Supreme Court held that when calculating a defendant’s criminal histoiy that includes out-of-state convictions [145]*145committed prior to the enactment of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., the out-of-state convictions must be classified as nonperson offenses. 299 Kan. 312, Syl. ¶5.

Waggoner argues that the holding in Murdock applies to in-state pre-KSGA convictions as well. We disagree with Waggoner; the holding in Murdock is limited to the classification of out-of-state pre-KSGA convictions for criminal history purposes and does not apply to in-state convictions. Thus, the district court did not err in classifying Waggoner s prior Kansas juvenile adjudication of attempted aggravated battery as a person felony for criminal history purposes.

The facts are straightforward. On October 17, 2013, Waggoner pled no contest to one count of possession of methamphetamine and one count of possession of marijuana. At the sentencing hearing, the district court found that Waggoner s criminal history score was “B”—based in part on an April 6, 1993, juvenile adjudication in Ford County, Kansas, of attempted aggravated battery. Wag-goner did not contest his criminal history score at sentencing. The district court sentenced Waggoner to a controlling term of 34 months’ imprisonment with 12 months’ postrelease supervision. Waggoner timely appealed the district court’s judgment.

On appeal, Waggoner contends that the district court erred in calculating his criminal history score because that calculation included the erroneous classification of his April 1993 juvenile adjudication of attempted aggravated battery as a person felony. Some background information is necessary to understand Wag-goner’s argument. Kansas did not begin categorizing crimes as person or nonperson offenses until 1993 when the KSGA was adopted. See L. 1992, ch. 239, sec. 1 (KSGA effective July 1, 1993); Mur-dock, 299 Kan. at 315. Generally, person crimes are weighted more heavily than nonperson crimes for criminal history purposes. 299 Kan. at 314. In Murdock, our Supreme Court held that all out-of-state pre-KSGA crimes must be classified as nonperson felonies for criminal history purposes. 299 Kan. 312, Syl. ¶ 5.

Waggoner now argues that the holding in Murdock applies to in-state pre-KSGA convictions as well. Thus, because Waggoner’s [146]*146juvenile adjudication in Ford County, Kansas, of attempted aggravated battery occurred on April 6,1993—prior to the effective date of the KSGA and before Kansas began classifying offenses as either person or nonperson—Waggoner argues that the district court erred in classifying the offense as a person felony for criminal history purposes.

In response, the State first argues that in light of the Kansas Supreme Court’s order modifying its original opinion in Mur-dock—an order issued after Waggoner filed his initial appellate brief—Murdock does not apply to in-state pre-KSGA convictions. The State also points out that Kansas courts have long classified in-state pre-KSGA crimes as either person or nonperson for criminal history purposes according to the comparable crime’s post-KSGA classification. The State argues that the legislative intent behind the KSGA requires this court to follow precedent and reject Waggoner’s argument.

The parties agree that whether a prior conviction or adjudication is properly classified as a person or nonperson offense involves the interpretation of the KSGA. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Mur-dock, 299 Kan. at 314.

Waggoner candidly concedes that he did not object to his criminal history score in the district court. But as Waggoner notes, by challenging the accuracy of his criminal histoiy score, he alleges an illegal sentence, and this court may consider his argument for the first time on appeal. See State v. Kelly, 298 Kan. 965, 975-76, 318 P.3d 987 (2014) (stating that a court “unquestionably” may entertain an illegal sentence allegation for the first time on appeal); State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011) (stating that where a criminal history score is incorrect, the resulting sentence is an illegal sentence). The State does not dispute that Waggoner may raise this issue for the first time on appeal.

We will begin our analysis by attempting to summarize our Supreme Court’s decision in Murdock. Murdock pled guilty to two counts of aggravated robbery and one count of robbery committed in 2008. His criminal history included convictions of robbeiy in Illinois in 1984 and 1990 and a robbeiy conviction in Kansas in [147]*1471996. The district court classified all three prior convictions as person offenses, which placed Murdock into criminal history category A, and sentenced him to a controlling term of 233 months’ imprisonment. This court affirmed the district court in State v. Murdoch, No. 104,533, 2011 WL 4031550, at *3 (Kan. App. 2011) (unpublished opinion), rev'd 299 Kan. 312, 323 P.3d 846 (2014).

The Kansas Supreme Court granted a petition for review. Before the Supreme Court, Murdock argued that the district'court should have classified the Illinois crimes as nonperson offenses because (1) K.S.A. 21-4710(d)(8) required such a classification and (2) “the legislature intended to designate pre-[KSGA] convictions as nonperson offenses.” 299 Kan. at 314. Our Supreme Court began its analysis by addressing K.S.A. 21-4711(e), recodified as K.S.A. 2014 Supp. 21-6811(e), which governs the classification of out-of-state convictions for criminal history purposes. 299 Kan. at 314. That statute provides in pertinent part:

“Out-of-state convictions and juvenile adjudications will be used in classifying the offender’s criminal history. An out-of-state crime will be classified as either felony or misdemeanor according to the convicting jurisdiction. If a crime is a felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime.” K.S.A.

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Cite This Page — Counsel Stack

Bluebook (online)
343 P.3d 530, 51 Kan. App. 2d 144, 2015 Kan. App. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-waggoner-kanctapp-2015.