Appeal from Miami District Court; AMY L. HARTH, judge.
1. An appeal is heard on a question reserved by the State only to address a matter of some statewide importance, not merely to show that the district court was wrong in a particular case. The appellate court's ruling on a question reserved does not have any effect on the criminal defendant or juvenile offender in that case.
2. One factor that determines the length of a defendant's presumptive sentence for a felony conviction under the Kansas sentencing guidelines is the defendant's criminal-history score. Unless excluded by statute, all prior criminal convictions are considered for criminal-history-scoring purposes. K.S.A. 2013 Supp. 21-6810(d)(9).
3. Prior convictions considered under a statute applicable to certain recidivist burglars, K.S.A. 2013 Supp. 21-6804(l) (which provides a presumptive prison sentence instead of probation), are not excluded from consideration for determining the defendant's criminal-history category. Thus, all prior burglary convictions are considered for criminal-history purposes.
Jason A. Oropeza and Robert R. Johnson, assistant county attorneys, Elizabeth Sweeney-Reeder, county attorney, and Derek Schmidt, attorney general, for appellant.
Jenni L. Howsman, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellee.
Before MALONE C.J., LEBEN and ATCHESON, JJ.
Under the Kansas sentencing guidelines, the more serious a defendant's past offenses are, the greater the presumptive sentence if the defendant commits a new felony offense. After Michael Pearce, Jr., was convicted of his fifth burglary, however, the district court did not include Pearce's past residential burglary--a person felony--when calculating his criminal-history score because the court had used that conviction to apply a statute that makes prison the default sentence for recidivist burglars.
The State has appealed, contending that the district court erred by excluding the prior residential burglary when determining Pearce's criminal-history score. The defendant successfully argued in the district court that K.S.A. 2013 Supp. 21-6810(d)(9) prevents the court from counting this offense.
But that statute excludes prior convictions only when " they enhance the severity level, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction." K.S.A. 2013 Supp. 21-6810(d)(9). None of those criteria were met here: the past offense did not change the severity level of this offense (severity-level 7), did not change the offense from a misdemeanor to a felony, and was not required for conviction of the current offense. K.S.A. 2013 Supp. 21-6810(d)(9) goes on to state that " [e]xcept as otherwise provided, all other prior convictions will be considered and scored." (Emphasis added.) Because no statutory exception applied to Pearce's prior residential-burglary conviction, the district court should have considered it when determining Pearce's criminal-history score, which determines the length of his presumptive prison sentence.
Factual, Procedural, And Legal Background
In late September or early October 2012, Pearce and another man broke into a building in Miami County and stole an all-terrain vehicle and related equipment. When police questioned him, Pearce confessed to the burglary ...