Appeal fro Douglas District Court; BARBARA KAY HUFF, judge.
1. The holding in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014) (mod. by Supreme Court order September 19, 2014), is limited to the classification for criminal history purposes of out-of-state convictions committed prior to the enactment of the Kansas Sentencing Guidelines Act.
2. In designating a crime as person or nonperson for criminal history purposes, courts should focus on the nature of the offense as set forth in the statutory elements of the crime rather than on the prior classification of the crime.
3. Under the facts of this case, the district court did not err in classifying the defendant's prior Kansas juvenile adjudication of attempted aggravated battery as a person felony for criminal history purposes.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Patrick J. Hurley, assistant district attorney, Matt Dennert, legal intern, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
Eric Waggoner appeals his sentence following his convictions of possession of methamphetamine and marijuana. Waggoner argues that, in light of our Supreme Court's decision in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014) (mod. by Supreme Court order September 19, 2014), the district court erred in classifying his prior Kansas juvenile adjudication of attempted aggravated battery as a person felony for criminal history purposes. In Murdock, our Supreme Court held that when calculating a defendant's criminal history that includes out-of-state convictions [51 Kan.App.2d 145] committed prior to the enactment of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., the out-of-state convictions must be classified as nonperson offenses. 299 Kan. 312, 323 P.3d 846, Syl. ¶ 5.
Waggoner argues that the holding in Murdock applies to in-state pre-KSGA convictions as well. We disagree with Waggoner; the holding in Murdock is limited to the classification of out-of-state pre-KSGA convictions for criminal history purposes and does not apply to in-state convictions. Thus, the district court did not err in classifying Waggoner's prior Kansas juvenile adjudication of attempted aggravated battery as a person felony for criminal history purposes.
The facts are straightforward. On October 17, 2013, Waggoner pled no contest to one count of possession of methamphetamine and one count of possession of marijuana. At the sentencing hearing, the district court found that Waggoner's criminal history score was " B" --based in part on an April 6, 1993, juvenile adjudication in Ford County, Kansas, of attempted aggravated battery. Waggoner did not contest his criminal history score at sentencing. The district court sentenced Waggoner to a controlling term of 34 months' imprisonment with 12 months' postrelease supervision. Waggoner timely appealed the district court's judgment.
On appeal, Waggoner contends that the district court erred in calculating his criminal history score because that calculation included the erroneous classification of his April 1993 juvenile adjudication of attempted aggravated battery as a person felony. Some background information is necessary to understand Waggoner's argument. Kansas did not begin categorizing crimes as person or nonperson offenses until 1993 when the KSGA was adopted. See L. 1992, ch. 239, sec. 1
(KSGA effective July 1, 1993); Murdock, 299 Kan. at 315. Generally, person crimes are weighted more heavily than nonperson crimes for criminal history purposes. 299 Kan. at 314. In Murdock, our Supreme Court held that all out-of-state pre-KSGA crimes must be classified as nonperson felonies for criminal history purposes. 299 Kan. 312, 323 P.3d 846, Syl. ¶ 5.
Waggoner now argues that the holding in Murdock applies to in-state pre-KSGA convictions as well. Thus, because Waggoner's [51 Kan.App.2d 146] juvenile adjudication in Ford County, Kansas, of attempted aggravated battery occurred on April 6, 1993--prior to the effective date of the KSGA and before Kansas began classifying offenses as either person or nonperson--Waggoner argues that the district court erred in classifying the offense as a person felony for criminal history purposes.
In response, the State first argues that in light of the Kansas Supreme Court's order modifying its original opinion in Murdock --an order issued after Waggoner filed his initial appellate brief-- Murdock does not apply to in-state pre-KSGA convictions. The State also points out that Kansas courts have long classified in-state pre-KSGA crimes as either person or nonperson for criminal history purposes according to the comparable crime's post-KSGA classification. The State argues that the legislative intent behind the KSGA requires this court to follow precedent and reject Waggoner's argument.
The parties agree that whether a prior conviction or adjudication is properly classified as a person or nonperson offense involves the interpretation of the KSGA. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Murdock, 299 Kan. at 314.
Waggoner candidly concedes that he did not object to his criminal history score in the district court. But as Waggoner notes, by challenging the accuracy of his criminal history score, he alleges an illegal sentence, and this court may consider his argument for the first time on appeal. See State v. Kelly, 298 Kan. 965, 975-76, 318 P.3d 987 (2014) (stating that a court " unquestionably" may entertain an illegal sentence allegation for the first time on appeal); State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011) (stating that where a criminal history score is incorrect, ...