Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge.
BY THE COURT
1. Depending on the facts of the case, the doctrine of invited error can bar a defendant who forgoes his or her statutory opportunity to challenge his or her criminal history from subsequently complaining that his or her sentence was based on that unchallenged criminal history.
2. A prior Oklahoma deferred adjudication after a plea of guilty is counted as a prior conviction for calculating criminal history under the Kansas Sentencing Guidelines.
Sarah Morrison Rapelye, of The Law Office of Stacey J. Lett & Associates LLC, of Leawood, for appellant.
Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., ATCHESON, J., and ERNEST L. JOHNSON, District Judge Retired, assigned. ATCHESON, J., concurring.
Anthony C. Hankins appeals the district court's denial of his motion to correct an illegal sentence. He asserts that the district court incorrectly included in his criminal history an Oklahoma deferred sentence that was not actually a conviction. We affirm the rulings of the district court.
Factual and Procedural History
On July 2, 2010, Hankins, dressed for combat and wielding a rifle, burst into Saints Bar and Grill. He threatened to do bodily harm to his victims and robbed the business of around $1,500. The police stopped Hankins' vehicle as he was making his getaway. However, before they could take Hankins into custody, he sped away. Hankins then crashed his vehicle. The police arrested him and, amidst other evidence of the crime, found around $1,500 in [49 Kan.App.2d 972] cash in his vehicle. Saints had a security system that captured the robbery on video. The proprietor of Saints recognized the robber as being similar in appearance to the person he saw on the video security system burglarizing Saints a month before the robbery.
The State charged Hankins with four felonies. He attempted to negotiate a plea bargain that included some concessions for probation. When that failed, Hankins, contrary to the advice of his attorney, decided to plead guilty without benefit of a plea bargain. On March 25, 2011, Hankins pled guilty as charged to one count of aggravated robbery and two counts of aggravated assault for the offenses he committed on July 2, 2010, and one count of burglary for the offense of June 4, 2010. The presentence investigation (PSI) report listed three prior convictions: (1) possession of a firearm on school property, an adult nonperson felony; (2) giving a worthless check, an adult nonperson misdemeanor; and (3) possession of stolen property, an adult nonperson misdemeanor. The felony conviction was from Oklahoma. The PSI suggested that Hankins' criminal history score was G.
The district court sentenced Hankins on May 19, 2011. At the outset of the hearing, the district court recited the possible sentences indicated in the PSI report for each count. For the primary offense, aggravated robbery, a level 3 person felony, using a criminal history score of G, the aggravated sentence was 77 months, the standard sentence was 72 months, and the mitigated sentence was 68 months. For the three additional offenses, each a level 7 felony, applying a criminal history score of I, the applicable grid box provided a sentence range of 13
months, 12 months, or 11 months. The district court pointed out that this was a " presumptive prison" case.
The district court asked if anyone disagreed or had anything to add to the suggested sentencing terms from the PSI. Hankins' attorney stated that he did not disagree and had nothing to add to those findings. Hankins' attorney next responded that he knew of no reason not to proceed with sentencing. The district court then heard Hankins' comprehensive arguments for a dispositional departure to probation. Hankins' attorney argued the following points: Hankins entered his pleas as charged, without litigation, [49 Kan.App.2d 973] and contrary to advice of counsel, in order to reduce the burden on the State and the witnesses; he had obtained a job and was doing well; he was not a disciplinary problem at the residential center; he was remorseful about his criminal conduct and took full responsibility for it; he used a BB gun rather than an actual firearm during the robbery; and he had a son to support. Hankins' attorney suggested that, if the court granted probation, it could put " an enormous sentence over his head." As further evidence of Hankins' commitment to minimize the State's burden, his attorney stated:
" There was an issue about that conviction in Oklahoma, whether it had actually been dismissed or if it was part of a diversion or some juvenile issues. He didn't want to challenge that either, Judge, and decided, I've been dealing with this, I want to go forward today. I think if the court takes all of that into consideration, along with everything that is been outlined in the departure motion, there is enough, there is enough to find grounds for a departure in this case."
Hankins himself made a lengthy, articulate argument for probation. He emphasized that his job allowed him to use his college education. He read supporting letters from fraternity brothers and others to the court. Hankins did not contradict his attorney's waiver of a challenge to the Oklahoma item on the PSI.
The district court found that Hankins' reasons to depart from the presumption of imprisonment were not substantial and compelling. It sentenced Hankins to a term of 68 months in prison, the mitigated sentence, on the aggravated robbery count, and 12 months in prison on each of the other counts, with the sentences ordered to run concurrently.
On June 2, 2011, Hankins' filed his Notice of Appeal of the sentence, all judgments, and all adverse rulings entered by the district court. On October 27, 2011, because of the notice of voluntary dismissal filed by Hankins, this court dismissed that appeal.
On June 25, 2012, Hankins filed a pro se motion to correct an illegal sentence alleging that the Oklahoma conviction should not have been included in his criminal history. He argued that the case there was disposed of through a special Oklahoma process called " deferred sentencing" that did not result in a conviction. Through his attorney, Hankins filed a supplemental motion to correct an illegal sentence on October 16, 2012. The State filed its response [49 Kan.App.2d 974] to the motion on October 30, 2012. The State argued that Hankins waived his right to challenge the criminal history by stipulating to its accuracy. It contended that the doctrine of invited error precluded the relief Hankins requested. The State also addressed the substance of Hankins' criminal history argument. The State attached Hankins' Plea of Guilty and Summary of Facts form and the Sentencing After Previous Plea of Guilty form from the Oklahoma case. It argued that Hankins pled guilty to the offense so, under Kansas law, it constituted a conviction. The parties argued these positions at the motion hearing October 31, 2012. Interestingly, Hankins did not testify. The district court took the matters under advisement.
By written order entered November 26, 2012, the district court denied Hankins' motion. It found that Hankins had waived his right to challenge his criminal history because he stipulated to it in open court. Thus, he could not now complain about an error he had invited by the stipulation. Further, the district court found that Hankins made a strategic decision not to challenge his criminal history: " It is apparent that during sentencing the Defendant argued for leniency because he did not challenge his criminal history or add additional burdens to the
prosecutor." It also found that, even if the defendant were able to challenge his criminal history score, he had failed to prove that it was incorrect. The district court stated that deferred sentence offenses from other states can be included in a defendant's criminal history where, as here, the proceeding had established the defendant's guilt but simply deferred the imposition of punishment. Hankins filed a timely notice of appeal.
On appeal the parties offer the same arguments they made to the district court.
The court may correct an illegal sentence at any time. K.S.A. 22-3504(1). The question of whether a sentence is illegal is a question of law over which this court has unlimited review. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). A sentence is illegal if (1) it is imposed by a court without jurisdiction; (2) it does not [49 Kan.App.2d 975] conform to the applicable statutory provision, either in the character or the term of authorized punishment; or (3) it is ambiguous with respect to the time and manner in which it is to be served. 296 Kan. at 902.
Hankins essentially concedes that he stipulated to his criminal history score at sentencing. He contends that his illegal sentence claim is not barred under the invited error doctrine. He argues that whether the disposition of his Oklahoma case should count as a conviction is one of law not subject to the invited error doctrine. He also argues that he could not stipulate to an incorrect application of law.
Where the parties have not stipulated to the criminal history, the district court has the power to correct an error in determining criminal history. State v. Russell, 36 Kan.App.2d 396, 399, 138 P.3d 1289, rev. denied 282 Kan. 795 (2006). However, where a defendant invites error by stipulating to his or her criminal history, he or she generally cannot obtain a correction of the sentence under K.S.A. 22-3504. State v. Vandervort, 276 Kan. 164, 175-76, 72 P.3d 925 (2003); Neal v. State, 25 Kan.App.2d 705, 706, 971 P.2d 748 (1998), rev. denied 266 Kan. 1109 (1999).
Hankins contends that State v. Donaldson, 35 Kan.App.2d 540, 133 P.3d 154 (2006), makes the invited error doctrine inapplicable here. The Donaldson court stated: " The invited error rationale is not applicable when the erroneous information at the heart of a stipulation is within the knowledge of the court, the prosecutor, and defense counsel, but not the defendant." 35 Kan.App.2d at 543. However, the Donaldson court qualified that exception by basing it on its facts, stating: " [T]he stipulation at issue is not to the factual existence of his prior convictions but to the classification of those prior convictions. . . . [This] involves the application of law. As such, no party can properly stipulate to an incorrect application of the law." (Emphasis added.) 35 Kan.App.2d at 543-44.
The first problem with Hankins' argument is that he did stipulate to the factual existence of his prior conviction. He attempts to avoid that difficulty by arguing on appeal that he " does not challenge the [49 Kan.App.2d 976] existence of the Oklahoma case listed on his presentence investigation report but challenges the classification of the Oklahoma case as a conviction for the purpose of criminal history score." However, the PSI does not list cases. It lists only convictions. Hankins is challenging the very inclusion of this item, not its classification.
Hankins has another problem in relying on a Donaldson exception to invited error. " [T]he invited error rationale is not applicable when the erroneous information at the heart of a stipulation is within the knowledge of the court, the prosecutor, and defense counsel, but not the defendant." 35 Kan.App.2d at 543. Here there is no evidentiary indication that anyone other than Hankins knew that the Oklahoma conviction was part of a deferred sentence proceeding. Hankins' attorney stated: " There was an issue about that conviction in Oklahoma, whether it had actually been dismissed or if it was part of a diversion or some juvenile issues. He didn't want to challenge that either, Judge, and decided, I've been dealing with this, I want to go forward today."
This supports the inference drawn by the district court that Hankins was aware of a potential challenge to the accuracy of the criminal history but intentionally chose to forgo the challenge as part of his dispositional departure strategy.
This court has recently discussed the invited error doctrine in two cases where the defendant stipulated to his criminal history score and then challenged the same after sentencing. Relying on the holding in Donaldson, the court in State v. Mims, 260 P.3d 1248, 2011 WL 4563068 (Kan. App. 2011) (unpublished opinion), rev. denied 294 Kan. 945 (May 21, 2012), stated:
" Generally, a criminal defendant who stipulates to a criminal history score cannot later challenge the factual basis used to classify a prior conviction ( e.g., whether a burglary conviction should be classified as a person or nonperson felony . . .) or the factual basis used to determine the criminal history score ( e.g., the existence of a prior conviction)." 260 P.3d 1248, 2011 WL 4563068, at *4.
In State v. Madkins, 259 P.3d 748, 2011 WL 4031531 (Kan. App. 2011) (unpublished opinion), rev. denied 294 Kan. 945 (May 21, 2012), a panel of this court questioned the reasoning in the Donaldson holding:
[49 Kan.App.2d 977] " While a defendant may not bind a court by a stipulation to an incorrect application of the law, a defendant may bind him or herself. Bello, 289 Kan. at 194, where the issue was the applicability of the rape shield statute, is a case in point. Another example is the line of cases refusing to review a jury instruction where the complaining party had sought the instruction below. See State v. McCoy, 34 Kan.App.2d 185, 189-90, 116 P.3d 48, rev. denied 280 Kan. 988 (2005) (citing cases).
" The invited error doctrine applies to errors of law because it is based on estoppel, not on the personal knowledge of the defendant. State v. McCarley, 38 Kan.App.2d 165, 175-76, 166 P.3d 418 (2007), aff'd in part and rev'd in part 287 Kan. 167, 195 P.3d 230 (2008). The invited error doctrine therefore applies to criminal history scores, the legal aspect of such scores notwithstanding: 'A criminal defendant who stipulates to an incorrect criminal history score cannot later complain on appeal of an illegal sentence based on that score.' State v. Goeller, 276 Kan. 578, Syl. ¶ 6, 77 P.3d 1272 (2003), . . . . [Defendant's] criminal history score is not properly before us." 259 P.3d 748, 2011 WL 4031531, at *3.
There is no need for any additional analysis of the doctrine here. The facts in this case drive the decision on invited error. The district court found that Hankins chose to forgo a challenge to the Oklahoma item on his criminal history as part of his dispositional departure strategy. The statements made by Hankins' attorney at sentencing link the decision not to challenge the history directly to the " grounds for a departure in this case." The evidence indicates that Hankins himself dictated that strategy. Hankins' attorney said that Hankins entered his pleas as charged contrary to counsel's advice. The evidence also demonstrates that Hankins is educated, articulate, and not lacking in intelligence. He spoke well for himself at sentencing. At the first, failed, plea hearing he overrode the suggestions of his attorney and the court and made an impassioned argument for probation. The district court pointed out that Hankins was getting ahead of himself since he had not yet been found guilty. Then, at the actual plea hearing, Hankins spoke for himself in challenging the factual basis the State offered to support the burglary charge. He decided that he was guilty only after a lengthy discussion. He spoke well and at length at his sentencing. This all supports the inference that, had Hankins wanted to challenge the inclusion of the Oklahoma offense in his criminal history, he would have done so.
[49 Kan.App.2d 978] Hankins had the statutory opportunity, and obligation, to challenge his criminal history at sentencing. If he had, the State would have had the burden of producing proof sufficient to establish the disputed conviction by a preponderance of the evidence. K.S.A. 2010 Supp. 21-4715(c). He chose not to challenge his criminal history at sentencing. The decision of the district court, that the invited error doctrine bars Hankins from
now complaining of the criminal history score he chose not to challenge at sentencing, is supported by ...