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State v. Evans

Court of Appeals of Kansas

February 13, 2015

STATE OF KANSAS, Appellant,
v.
RICHARD EVANS, III, Appellee

Appeal from Johnson District Court; JANICE D. RUSSELL, judge.

SYLLABUS

Kansas law controls the determination of what constitutes a conviction for predicate offenses. Kansas statutes clearly define a conviction as including a proceeding where a defendant pleads guilty and is found guilty by a tribunal as a result of the plea, even if a sentence has not yet been imposed.

Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant.

Michael J. Gunter, of Gunter & Associates, of Kansas City, Missouri, for appellee.

Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.

OPINION

Page 123

Pierron, J.

The State appeals from the district court's dismissal of two counts of criminal possession of a firearm and one count of possession of marijuana after a prior conviction filed against Richard Evans, III. The court found Evans' prior guilty pleas to be felonies in Missouri, which resulted in suspended imposition sentences (SIS), were not convictions to serve as predicate convictions under K.S.A. 2013 Supp. 21-6304 or K.S.A. 2013 Supp. 21-5706. Below, the court relied on its interpretation of State v. Pollard, 273 Kan. 706, 714, 44 P.3d 1261 (2002). The State dismissed the remaining charge of no tax stamp on drugs and appealed from the dismissal of two criminal possession of firearms counts and one count of possession of marijuana. We reverse and remand.

Facts

In April 2013, the State charged Evans with various felonies. Counts I and II were charges of criminal possession of a firearm by a convicted felon in violation of K.S.A. 2013 Supp. 21-6304. Count III was possession of marijuana after a prior conviction of possession, in violation of K.S.A. 2013 Supp. 21-5706(b). Count IV [51 Kan.App.2d 169] was failure to affix a drug tax stamp to the marijuana in violation of K.S.A. 79-5208.

At the preliminary hearing, the State presented--without objection--certified copies of court records from Missouri. The records established that Evans had pled guilty to at least one felony and to another charge of possession of marijuana. During the hearing, police officers testified they had contacted the occupants of a Johnson County, Kansas, home on suspicion of drug activity. Evans was one of those occupants. During the investigation, officers found a .40 caliber handgun on Evans' person. In addition, a search of Evans' car resulted in the finding of another handgun and approximately 30 grams of marijuana. Officers saw that there was no drug stamp tax affixed to the marijuana.

The district court bound Evans over for trial, although there was discussion as to

Page 124

whether the prior Missouri offenses were sufficient to serve as convictions for the weapons and second-time ...


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