1. The classification of prior convictions is a question of law over which this court has unlimited review. Likewise, this court has de novo review when interpreting sentencing statutes.
2. Criminal offenses committed before July, 1, 1993, are to be classified as either person or nonperson offenses for criminal history purposes by comparing the pre-1993 offenses to current guidelines offenses under the Kansas Sentencing Guidelines Act.
Appeal from Saline District Court; Patrick H. Thompson, judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Jeffery S. Adam, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Standridge, P.J., Hill, J., and Knudson, S.J.
Benjamin Smith appeals the district court's denial of his motion for modification or correction of sentence. Smith claims: (1) His pre-1993 convictions for aggravated burglary and robbery were improperly classified as person felonies, and (2) his constitutional rights were violated when the district court increased his sentence based upon his prior criminal history when that history was not proven to a jury beyond a reasonable doubt. We do not find either issue to have merit.
The relevant facts are not in dispute. On February 9, 2009, Benjamin Smith pled guilty in Saline County case No. 2009-CR-74 to misdemeanor theft and three counts of forgery. On April 13, 2009, the district court sentenced him to a controlling sentence of 24 months' probation, with an underlying prison term of 19 months.
On August 10, 2010, Smith pled guilty in Saline County case No. 2010-CR-389 to possession of cocaine. On October 11, 2010, the district court sentenced him to 12 months' probation, with an underlying prison term of 34 months. The district court ordered the sentence to run consecutive to the sentence imposed in 2009-CR-74.
On August 22, 2011, Smith pled guilty in Saline County case No. 2011-CR-170 to eight counts of forgery and four counts of theft by deception. On October 28, 2011, the district court sentenced Smith to a controlling sentence of 27 months' imprisonment, with 12 months' postrelease supervision. On the same day, the district found that Smith's convictions in 2011-CR-170 constituted violations of his probation in his other cases. The district court revoked Smith's probation in his other cases and ordered him to serve the underlying sentences in each.
On September 30, 2011, before sentencing in 2011-CR-170, Smith had filed a motion for modification or correction of sentence. On October 18, 2011, Smith filed an amended motion for modification or correction of sentence; this appears to be the controlling motion in this case. Smith argued that the district court erred in 2010-CR-389 and 2009-CR-74 by classifying his 1982 convictions for aggravated burglary and robbery as person felonies, rather than nonperson felonies, when calculating his criminal history score. Smith asserted that had the district court correctly classified his 1982 convictions as nonperson felonies, his criminal history score in those cases would have been E rather than B. The district court denied Smith's motion.
Smith first challenges the district court's classification of his pre-Guidelines convictions for aggravated burglary and robbery as person crimes because the "plain language of K.S.A. [2010 Supp.] 21-4710(d)(8) requires that Mr. Smith's pre-1993 convictions, which are unclassified with regards to being person or nonperson crimes, be treated as nonperson crimes." Smith contends that had the district court properly classified his pre-Guidelines convictions as nonperson crimes, his criminal history score would have ...