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State of Kansas v. Cecil Thacker

January 18, 2013

STATE OF KANSAS, APPELLEE,
v.
CECIL THACKER, APPELLANT.



Appeal from Shawnee District Court; CHERYL RIOS KINGFISHER, judge.

SYLLABUS BY THE COURT

SYLLABUS BY THE COURT 1. Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. Under the fundamental rule of statutory construction, the intent of the legislature governs when that intent can be ascertained from the statute. 2. Prior convictions of a crime are not counted in determining a defendant's criminal history category if they are elements of the present crime of conviction. 3. The elements of a crime are defined as the constituent parts of a crime-usually consisting of the actus reus, mens rea, and causation-that the prosecution must prove to sustain a conviction. 4. In Kansas, all crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute. 5. Kansas courts look to the plain meaning of the statutory language to determine whether a prior conviction is an element of the defendant's present crime of conviction. 6. The plain language of the unlawfully tampering with electronic monitoring equipment statute, K.S.A. 21-4232(a), requires only proof that the defendant was on parole, not proof of the conviction that created that status.

The opinion of the court was delivered by: Standridge, J.

Affirmed.

Before STANDRIDGE, P.J., GREEN, J., and LARSON, S.J.

Cecil Thacker appeals from the sentence imposed by the district court after he pled no contest to attempted tampering with an electronic monitoring device. Thacker claims his sentence was illegal because the underlying felony conviction for which he was being monitored was included in his criminal history for sentencing on the attempted tampering charge. For the reasons stated below, we hold the district court did not err in including Thacker's underlying conviction in his criminal history score for sentencing on the attempted tampering charge.

FACTS

In 2009 Thacker was placed on parole for a conviction of aggravated indecent liberties with a child less than 14 years old. As a condition of his parole, Thacker was required to wear a GPS monitoring bracelet on his leg at all times. On May 10, 2011, a special agent with the department of corrections caught Thacker without his bracelet on.

On June 28, 2011, the State charged Thacker with one count of unlawfully tampering with electronic monitoring equipment. Thacker later pled no contest to attempted tampering with an electronic monitoring device. The presentence investigation report listed Thacker's criminal history score as "B." At sentencing, Thacker challenged this criminal history score, arguing that the conviction of aggravated indecent liberties with a child should not be counted as part of his criminal history for purposes of sentencing because it was the conviction for which he was being monitored and, thus, an element of his current offense of unlawfully tampering with electronic monitoring equipment. The district court disagreed. Based on its own independent research, the court found no reason to exclude the prior conviction for purposes of scoring the present crime. Thereafter, the district court calculated Thacker's criminal history classification as "B" based on the crimes in the presentence investigation report. The district court denied Thacker's motion for dispositional departure and sentenced him to the presumptive standard sentence of 19 months in prison with 12 months' postrelease supervision.

ANALYSIS

As he did below, Thacker argues on appeal that his conviction for aggravated indecent liberties should not have been included in his criminal history score under K.S.A. 2010 Supp. 21-4710(d)(11) because the conviction is an element of his present crime of conviction. Because the charge of attempted unlawfully tampering with electronic monitoring equipment requires the defendant to be on parole (or under a court order), Thacker claims this prior conviction for which he was on parole is an element of the crime.

Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Jolly, 291 Kan. 842, 845-46, 249 P.3d 421 (2011). Under the fundamental rule of statutory construction, the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature, rather than determine what the law should or should not be. State v. Cox, 258 Kan. 557, Syl. ¶ 7, 908 P.2d 603 (1995). As a general rule, a criminal statute is strictly construed in favor of the accused, meaning the court must construe any ambiguity in the statute's language in favor of the accused. This rule of strict construction, however, must be reasonable and sensible to effect legislative design and intent. State v. Jackson, 291 Kan. 34, 40, 238 P.3d 246 (2010).

Prior convictions of a crime are not counted in determining a defendant's criminal history category if they "are elements of the present crime of conviction." K.S.A. 2010 Supp. 21-4710(d)(11). The elements of a crime are defined as "[t]he constituent parts of a crime-[usually] [c]onsisting of the actus reus, mens rea, and causation-that the prosecution must prove to sustain a conviction." Black's Law Dictionary 597 (9th ed. 2009). In Kansas, "'all crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute.'" State v. Smith, 245 Kan. 381, 396, 781 P.2d 666 (1989), disapproved on other grounds by State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006).

Because the real question is whether the conviction was an element of the present crime of conviction "pursuant to the statutory definition," it does not matter what was included in the charging document or in the statement of facts at the plea hearing. State v. Lenz, No. 95,498, 2007 WL 1309604, at *1 (Kan. App. 2007) (unpublished opinion). Thus, in deciding similar issues under K.S.A. 2010 Supp. 21-4710(d)(11), Kansas courts have looked to the plain meaning of the ...


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