State v. Haley

S
                           NOT DESIGNATED FOR PUBLICATION

                                               No. 121,758

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                          SAMUEL T. HALEY,
                                             Appellant.


                                    MEMORANDUM OPINION

        Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed May 21, 2021.
Affirmed.


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


        Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before GARDNER, P.J., BUSER and BRUNS, JJ.


        BUSER, J.: This is a sentencing appeal brought by Samuel T. Haley, who claims
the district court imposed an illegal sentence in his criminal case. In particular, he
challenges the district court's ruling which allowed the State to object to the presentence
investigation (PSI) report which, according to the State, improperly classified Haley's
five prior residential burglary convictions as nonperson offenses rather than person
offenses. The district court agreed with the State and designated the prior convictions as
person offenses, resulting in an A criminal history score. Upon our review, we find no
error in the district court's ruling and affirm Haley's sentence.

                                                     1
                         FACTUAL AND PROCEDURAL BACKGROUND

         On April 10, 2019, in accord with a plea agreement, Haley pled no contest to
residential burglary, in violation of K.S.A. 2016 Supp. 21-5807(a)(1), (c)(1)(A)(i), and
theft, in violation of K.S.A. 2016 Supp. 21-5801(a)(1), (b)(2). Haley committed these
crimes two years earlier, on April 15 and 16, 2017. Prior to sentencing, the PSI calculated
that Haley had an E criminal history score. Relevant to this appeal, the PSI designated
five prior Kansas residential burglary convictions, from 2001 through 2010, as nonperson
felonies. See State v. Keel, 

302 Kan. 560

, Syl. ¶ 9, 

357 P.3d 251

 (2015).


         Upon reviewing the PSI prior to sentencing, the State requested a continuance to
file a written objection to the calculation of Haley's criminal history score. Haley
objected but the continuance was granted by the district court. Soon thereafter, the State
filed a written objection and challenged the scoring of Haley's five prior Kansas
residential burglary convictions. The State argued that based on the plain language of
K.S.A. 2016 Supp. 21-6811(d)(1), the prior residential burglary convictions were
improperly designated in the PSI as nonperson felonies. The State maintained that the
entries should have been classified as person felonies, resulting in an A criminal history
score.


         Sentencing occurred on July 29, 2019. The State reiterated its arguments that the
PSI was incorrect, noting that there had been "a difference in opinion between PSI
writers" regarding how to designate prior burglary convictions for criminal history
scoring purposes. Haley countered that the State lacked jurisdiction to challenge the PSI
and the rule of lenity required sentencing statutes to be interpreted in his favor if there
was doubt as to their proper interpretation.


         The district court adopted the State's reasoning and calculated that Haley had an A
criminal history score. Haley was sentenced to 30 months' imprisonment for burglary and

                                               2
a consecutive 11-month sentence for theft, followed by 12 months postrelease
supervision.


       Haley appeals.


            SCORING OF PRIOR BURGLARY CONVICTIONS AS PERSON FELONIES

       On appeal, Haley contends the district court imposed an illegal sentence when it
classified his five prior Kansas residential burglary convictions as person felonies, rather
than nonperson felonies, which erroneously resulted in an A criminal history score. Haley
asserts the district court erred for two reasons. First, he contends there is no statutory
mechanism under Kansas law that allows the State to object to the PSI. Second, Haley
contends that even if the State could legally object, Keel requires a district court to
designate his prior burglary convictions as nonperson felonies based on the nonperson
felony designation attached to his current burglary conviction. See Keel, 

302 Kan. 560

,
Syl. ¶ 9.


       In response, the State argues that Haley failed to preserve the issue of the State's
ability to object to the PSI. Nevertheless, the State contends it was permitted to object to
the PSI, the district court properly considered the State's objections, and the court
properly applied K.S.A. 2016 Supp. 21-6811(d)(1) in designating Haley's five prior
residential burglary convictions as person felonies.


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

307 Kan. 552

, 555, 

412 P.3d 984

 (2018).


       We begin the analysis with a brief summary of Kansas law pertaining to the
calculation of a defendant's criminal history for purposes of determining a sentence.

                                               3
Under the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-
6801 et seq., criminal sentences are based on two controlling factors: the defendant's
criminal history and the severity level of the crime committed. K.S.A. 2020 Supp. 21-
6804(c). Criminal history scores range from I (no criminal history or one misdemeanor)
to A (three or more person felonies). See K.S.A. 2020 Supp. 21-6809; K.S.A. 2020 Supp.
21-6804(a). A defendant's criminal history includes all the defendant's adult felony
convictions, felony juvenile adjudications, and certain misdemeanor convictions and
adjudications. K.S.A. 2020 Supp. 21-6810(a), (d).


       When calculating a defendant's criminal history score, the district court classifies
convictions (1) as a felony or misdemeanor and (2) as a person or nonperson offense.
K.S.A. 2020 Supp. 21-6810(a). The KSGA weighs felonies more heavily than
misdemeanors, and they result in higher presumptive sentences. The KSGA also weighs
person offenses more heavily than nonperson offenses. See Keel, 

302 Kan. at 574-75

.


Preservation of the First Issue for Appellate Review

       The State contends Haley failed to preserve his first argument for appeal because
he "did not make his procedural claim that K.S.A. 2016 Supp. 21-6814 lacks a
mechanism for the State to object to a criminal history score below." Generally, issues
not raised before the district court may not be raised on appeal. See State v. Kelly, 

298
Kan. 965

, 971, 

318 P.3d 987

 (2014).


       The State is mistaken. Haley, in essence, asserted this argument in the district
court. At sentencing, Haley's counsel contended:


               "Also, Mr. Haley points out looking at the statutes in question [K.S.A. 2016
       Supp.] 21-6814 it talks about the defendant's responsibilities and procedures. The
       defendant argues against the criminal history and challenges the prior convictions.


                                                   4
                 "What Mr. Haley is stating the State—they are objecting to the PSI. Mr. Haley is
         arguing they don't have jurisdiction to be able to do that."


         As a result, we find Haley's first argument was preserved for appellate review, and
we will address the merits.


Propriety of the State's Objection to PSI Errors

         Haley contends the district court erred in considering the State's objection to the
classification of crimes in the PSI because "there is no statutory mechanism allowing the
State to make such an objection." The statute in question, K.S.A. 2016 Supp. 21-6814,
reads:


                 "(a) The offender's criminal history shall be admitted in open court by the
         offender or determined by a preponderance of the evidence at the sentencing hearing by
         the sentencing judge.
                 "(b) Except to the extent disputed in accordance with subsection (c), the
         summary of the offender's criminal history prepared for the court by the state shall satisfy
         the state's burden of proof regarding an offender's criminal history.
                 "(c) Upon receipt of the criminal history worksheet prepared for the court, the
         offender shall immediately notify the district attorney and the court with written notice of
         any error in the proposed criminal history worksheet. Such notice shall specify the exact
         nature of the alleged error. The state shall have the burden of proving the disputed portion
         of the offender's criminal history. The sentencing judge shall allow the state reasonable
         time to produce evidence to establish its burden of proof. If the offender later challenges
         such offender's criminal history, which has been previously established, the burden of
         proof shall shift to the offender to prove such offender's criminal history by a
         preponderance of the evidence."


         Haley argues that a plain reading of the statute "discloses that the State has no
ability to object to a criminal history score and seek reclassification of admitted to prior
convictions." He asserts the Legislature intended "no action is to be taken once a
                                                       5
defendant admits to the criminal history in open court, as the PSI has satisfied the State's
burden of proof on the matter," based on subsections (a) and (b). As to subsection (c),
Haley asserts this subsection allows for challenges solely by a defendant. Because Haley
admitted to the criminal history score established by the PSI at sentencing, he contends
his prior criminal history was not subject to challenge since the State had met its burden
of proof under K.S.A. 2016 Supp. 21-6814(a) and (b).


       In response, the State cites State v. Hankins, 19 Kan. App 2d 1036, 

880 P.2d 271

(1994). In Hankins, our court considered this same argument raised by Haley and found it
unpersuasive. In particular, we analyzed the language in K.S.A. 1993 Supp. 21-4715, the
precursor to K.S.A. 2016 Supp. 21-6814, and determined:


               "Although the [KSGA] does not provide for a challenge by the State of the
       criminal history worksheet of the presentence investigation report, the State must be
       allowed to correct an erroneous criminal history worksheet . . . .
               "Denying the State an opportunity to correct an erroneous criminal history
       worksheet would contravene the intent of the [L]egislature in passing the [KSGA] and
       would violate the ethical responsibility of the prosecutor not to permit false information
       to be reported to the court." 

19 Kan. App. 2d 1036

, Syl. ¶¶ 4, 5.


       After the Hankins court determined the State was entitled to correct a PSI, it held:


               "If the State plans to amend or challenge the criminal history listed in a PSI
       report, due process requires it must make such amendment or challenge in writing prior
       to the time of sentencing and provide copies for the court and the defendant or defense
       counsel in sufficient time for the amended history to be reviewed by the defendant. If it is
       impossible for the State to make these challenges to the report prior to the date of
       sentencing, the district court must provide the defendant with time to challenge the
       amended history in compliance with K.S.A. 1993 Supp. 21-4715." 

19 Kan. App. 2d at
1048

.



                                                    6
       While candidly conceding this contrary holding, Haley argues "it is true that an
accurate criminal history score is pivotal to the Kansas sentencing scheme, [but] this does
not justify inserting words into a statute where they do not exist." Haley also suggests
that the State has two options apart from objecting to the PSI: The State could appeal the
sentence under K.S.A. 2020 Supp. 22-3602(f) (criminal appeals statute) or the State could
seek to correct the resultant illegal sentence under K.S.A. 2020 Supp. 22-3504(a) (motion
to correct an illegal sentence).


       The State counters that Hankins controls and the State complied with our court's
directives by properly objecting in writing to Haley's criminal history score. Responding
to Haley's arguments, the State asserts it may not take an appeal of Haley's criminal
history score because "K.S.A. [2020 Supp.] 22-3602(f) . . . plainly only allows for the
State to appeal a departure sentence." See K.S.A. 2020 Supp. 21-6820. The State also
criticizes Haley's argument that the State could file a motion to correct illegal sentence
after the erroneous criminal history was used in sentencing as producing "an
unreasonable and absurd result."


       We find the reasoning supporting the holding in Hankins' is persuasive. There is
nothing in the statutory scheme that precludes the State from objecting to erroneous
information contained in the PSI—including, but not limited to, a mistaken classification
of a defendant's prior crimes which results in an incorrect criminal history score.


       Moreover, under K.S.A. 2020 Supp. 21-6813(a), it is the duty of the court to order
preparation of a PSI by a court services officer. And K.S.A. 2020 Supp. 21-6813(b)(5)
provides the PSI "shall include an assessment of the appropriate classification of the
criminal history on the criminal history scale . . . ." This assessment is an essential
component of the KSGA, which has a "principal purpose" of standardizing sentences "so
that similarly situated offenders are treated the same." Keel, 

302 Kan. at 589

.


                                              7
       It is an understatement to observe the assessment of the appropriate classification
of criminal history requires accurate information regarding a defendant's criminal history.
But the assessment also requires a correct understanding of how Kansas sentencing
statutes and caselaw precedent construe that criminal history. This is essentially a legal
function for which defense counsel and prosecutors can provide helpful assistance to the
district court in order to arrive at a lawful sentence.


       Our court in Hankins highlighted additional reasons to allow prosecutors to object
to erroneous criminal history information:


       "The KSGA, when read as a whole, relies upon the accuracy of an offender's criminal
       history in reaching a presumptive sentence. The importance of an accurate criminal
       history is emphasized by the fact the parties cannot plea bargain away any of an
       offender's prior convictions. The legislative background reveals the [L]egislature
       recognized the importance of having the criminal histories as accurate as possible. Even
       more basic, the prosecutor, as an officer of the court, has an obligation to bring to the
       court's attention any errors of which the prosecutor is aware in any report submitted to the
       court. Based on these factors, denying the State an opportunity to correct an erroneous
       criminal history worksheet would contravene the intent of the [L]egislature and the
       ethical responsibility of the prosecutor." 

19 Kan. App. at 1046-47

.


       Finally, courts must construe statutes to avoid unreasonable or absurd results.
Keel, 

302 Kan. at 574

. Haley's interpretation of K.S.A. 2016 Supp. 21-6814 would bring
about unreasonable or absurd results in sentencing by prohibiting the State from objecting
to false or erroneous information in the PSI which would necessarily result in imposition
of an illegal sentence. Not only would this create the unreasonable consequence of an
illegal sentence, but Haley's statutory construction deviates from the purposes of the
KSGA.




                                                     8
       Hankins is dispositive. The district court did not err in permitting the State to file a
written objection to the criminal history contained in the PSI prior to sentencing which,
according to the State, improperly classified Haley's five prior Kansas residential
burglary convictions as nonperson offenses rather than person offenses.


Classification of Prior Kansas Residential Burglary Convictions as Person Felonies

       Next, Haley contends the district court erred in classifying his five prior Kansas
residential burglary convictions that he committed from 2001 through 2010 as person
felonies when the district court should have designated the convictions as nonperson
felonies based on the nonperson felony designation assigned to burglary at the time of
Haley's current offenses on April 15 and 16, 2017. The State counters that the district
court did not err, arguing that our court has previously considered and rejected this legal
argument.


       Whether a district court has properly classified a prior conviction as a person or
nonperson offense requires the interpretation of the KSGA, K.S.A. 2020 Supp. 21-6801
et seq. Whether a sentence is illegal is a question of law subject to unlimited review.
Issues of statutory interpretation and the classification of prior crimes for criminal history
purposes are also questions of law subject to unlimited review. State v. Sartin, 

310 Kan.
367

, 369, 

446 P.3d 1068

 (2019).


       When Haley committed his present crimes—on April 15 and 16, 2017—burglary
of a dwelling was a nonperson offense under K.S.A. 2016 Supp. 21-5807(c)(1)(A). As
Haley notes, in Keel our Supreme Court held that district courts should predicate their
designation of prior Kansas convictions and juvenile adjudications based on Kansas
offenses in effect at the time of the current conviction. The Keel court held: "The
comparable post-KSGA Kansas criminal statute is the one in effect at the time of the
current crime of conviction was committed," and so "the classification of a prior

                                              9
conviction . . . for criminal history purposes under the KSGA must be based on the
classification in effect for the comparable offense when the current crime of conviction
was committed." 

302 Kan. 560

, Syl. ¶¶ 8-9. As a result, Haley contends his five prior
convictions for residential burglaries that he committed in Kansas from 2001 through
2010—which were designated as person felonies at that time—should have been
designated as a nonperson felonies for purposes of scoring his criminal history at
sentencing.


       Since the Legislature established the person and nonperson designations to
criminal offenses in 2003, burglary of a dwelling has almost always been classified as a
person felony. However, for a brief period of less than a year—from July 1, 2016, until
May 18, 2017—the Legislature classified residential burglary as a nonperson felony.
Compare K.S.A. 2016 Supp. 21-5807(c)(1)(A)(i) with K.S.A. 2017 Supp. 21-
5807(c)(1)(A)(i). It was during this short-lived period that Haley committed the current
residential burglary, which was designated as a nonperson crime.


       As the State emphasizes, however, despite this change in designation for burglary
convictions occurring from July 1, 2016, until May 18, 2017, K.S.A. 2016 Supp. 21-
6811(d)(1) directed courts to designate "[p]rior burglary adult convictions and juvenile
adjudications [to] be scored for criminal history purposes . . . [a]s a prior person felony if
the conviction or adjudication was classified as a burglary as defined in K.S.A. 21-
3715(a), prior to its repeal, or K.S.A. 2016 Supp. 21-5807(a)(1), and amendments
thereto." (Emphases added.) K.S.A. 2016 Supp. 21-6811(d)(1). This statute is applicable
to the facts and circumstances of Haley's latest sentencing.


       The interplay between K.S.A. 2016 Supp. 21-6811(d)(1) and K.S.A. 2016 Supp.
21-5807(c)(1)(A), has been the subject of prior Court of Appeals opinions. Our court has
considered this legal issue at least three times and, on each occasion, we have rejected the
argument raised by Haley in this appeal. See State v. Hicks, No. 120,834, 

2020 WL

10

1646812 (Kan. App. 2020) (unpublished opinion), rev. denied 

312 Kan. 897

 (2020); State
v. Marshall, No. 119,710, 

2019 WL 5849911

 (Kan. App. 2019) (unpublished opinion),
rev. denied 

311 Kan. 1048

 (2020); State v. Cadenhead, No. 117,796, 

2018 WL 3673028

(Kan. App. 2015) (unpublished opinion), rev. denied 

309 Kan. 1350

 (2019).


       In Cadenhead, our court conducted an extensive analysis of Keel and other
relevant precedent and rejected an argument similar to Haley's. The panel held:


               "Though K.S.A. 2016 Supp. 21-5807(a)(1) and (c)(1) are specific to the offense
       of burglary and includes the severity level and nonperson designation for future
       sentencing, K.S.A. 2016 Supp. 21-6811(d)(1) is specific to the purpose for which it is
       being used here—sentencing for a subsequent offense. It also provides the State's burden
       of proof in proving prior convictions. When considered along with the legislative
       omission of an in-state, post-KSGA rule for designation at the time of the current offense,
       it seems the person/nonperson designation in K.S.A. 2016 Supp. 21-5807(c)(1) is for
       determination of an offender's criminal history score in current offenses rather than for
       designation of prior offenses for criminal history. Even so, the designation in K.S.A.
       2016 Supp. 21-6811(d)(1) provides instruction for designating any prior conviction for
       burglary of a dwelling when scoring it for sentencing. Thus, K.S.A. 2016 Supp. 21-
       6811(d)(1) provides a specific enactment." Cadenhead, 

2018 WL 3673028

, at *5.


       A few years later in Marshall, our court discounted the same argument raised by
Haley in this appeal:


       "Keel does not control; Dickey does. The Kansas Supreme Court in State v. Dickey, 

301
Kan. 1018

, 1035, 

350 P.3d 1054

 (2015), held a pre-KSGA juvenile adjudication for
       burglary, which did not include a requirement the burglarized structure be a dwelling as
       an element of the offense, is a nonperson felony. The Dickey court found the
       classification of a prior residential burglary conviction or adjudication for criminal
       history purposes is specifically controlled by K.S.A. 2018 Supp. 21-6811(d). [Citation
       omitted.]" Marshall, 

2019 WL 5849911

, at *6.



                                                    11
       Most recently in Hicks, we again dismissed a legal argument like the one raised by
Haley. After addressing the Marshall and Cadenhead decisions, the Hicks court held that
prior convictions for burglary of a dwelling should be designated as person offenses
because K.S.A. 2016 Supp. 21-6811(d)(1) is a more specific statute than K.S.A. 2016
Supp. 21-5807(c)(1)(A)(i). 

2020 WL 1646812

, at *5.


       The decisions in Hicks, Marshall, and Cadenhead are sound and dispositive.
When there is a conflict between statutes, a specific statute controls over a general
statute. State v. Kinder, 

307 Kan. 237

, 241, 

408 P.3d 114

 (2018). As analyzed by our
court previously, K.S.A. 2016 Supp. 21-6811(d)(1) is very specific to the purpose for
which it is being used here. The statute specifically provides for the classification of a
prior Kansas residential burglary conviction as a person offense for the purpose of
determining a defendant's criminal history score. This language is much more specific
than the language of the general statute designating burglary as a crime. See K.S.A. 2016
Supp. 21-5807(c)(1)(A)(i).


       Although it is unknown why the Legislature changed burglary of a dwelling from
a person designation to a nonperson designation for 10 months, the Legislature's inaction
in response to the Cadenhead opinion supports our court's decision. Courts generally
presume the Legislature acts with full knowledge of the statutory subject matter,
including prior and existing law and judicial decisions interpreting the same. State v.
Kershaw, 

302 Kan. 772

, 782, 

359 P.3d 52

 (2015). When the Legislature fails to modify a
statute to avoid a standing judicial construction of the statute, courts presume the
Legislature agrees with that judicial construction. State v. Nguyen, 

304 Kan. 420

, 425-26,

372 P.3d 1142

 (2016). The Hicks and Marshall opinions are relatively recent decisions,
but Cadenhead has been decided for several years with no legislative modifications to the
relevant statutes.




                                             12
       We hold that under the facts of this case, K.S.A. 2016 Supp. 21-6811(d)(1)
controls the person/nonperson designation for prior residential burglary convictions when
a district court calculates an offender's criminal history score. Accordingly, the district
court did not err in designating Haley's five prior residential burglary convictions as
person offenses in calculating his criminal history score for purposes of sentencing.


       Affirmed.




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