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State v. Fowler

Court of Appeals of Kansas

November 22, 2017

State of Kansas, Appellee,
v.
Brandon L. Fowler, Appellant.

         SYLLABUS BY THE COURT

         1. The revised Kansas Sentencing Guidelines Act provides that criminal sentences for felony convictions are essentially based on two controlling factors: the criminal history of the defendant and the severity level of the crime committed. In general, severity levels for felony offenses are ranked 1 through 10, with 1 being the most severe felony, although there are offgrid felonies that are reserved for the most serious offenses. Drug felonies have their own sentencing grid and have severity levels of 1 to 5, with a severity level 1 drug felony being the most serious.

         2. A defendant's criminal history score is calculated by tabulating the offender's prior convictions, with category A being the highest and I being the lowest. Prior convictions or adjudications are classified as either misdemeanors or felonies, person or nonperson, with some exceptions. Person felonies have a greater impact on a defendant's criminal history score. The more extensive the defendant's criminal history and/or the greater the severity level of the crime, the lengthier the guideline sentence. With some exceptions, all prior convictions are to be tabulated and scored, and every three adult prior class A and class B person misdemeanors are to be rated as one person felony for criminal history purposes.

         3. An important exception to the rule that all prior convictions are to be scored is the rule that prohibits the counting of any prior conviction used to enhance the severity level, elevate the classification, or which serves as an element of the present crime of conviction.

         4. When a defendant has multiple convictions, the sentencing judge is to determine the base sentence for the primary crime. The primary crime is defined as the crime with the highest severity level, but an offgrid crime cannot be designated as the primary crime. The base sentence is calculated by applying a defendant's total criminal history score to the primary crime. Nonbase sentences, which are sentences imposed for convictions of crimes other than the primary crime, are to be calculated without applying a criminal history score.

         5. When a defendant is being sentenced for multiple felony convictions, the term "present crime of conviction" as contained in K.S.A. 2015 Supp. 21-6810(d)(9) refers only to the primary crime referred to in K.S.A. 2015 Supp. 21-6819(b)(2).

         6. The crime of domestic battery has its own sentencing scheme outside of the revised Kansas Sentencing Guidelines Act. Domestic battery may be classified as a class B person misdemeanor, a class A person misdemeanor, or a person felony depending on the number of prior domestic battery convictions. A domestic battery is classified as a person felony if, within five years immediately preceding commission of the crime, the defendant is convicted of domestic battery a third or subsequent time.

         7. The crime of felony domestic battery is a nongrid felony. The sentencing grid is inapplicable to this crime because the crime has its own sentencing scheme and has no severity level designation. In light of this, felony domestic battery cannot be designated as the primary crime for the purpose of applying a criminal history score to calculate a defendant's sentence.

         8. In the present case, the district court properly designated the defendant's conviction for possession of methamphetamine as the primary crime of conviction for the purpose of calculating the defendant's base sentence. Moreover, the defendant's criminal history score of B was correctly used because the defendant's two prior domestic battery convictions were not used to elevate the classification of the primary crime.

         Appeal from Sedgwick District Court; Christopher M. Magana, judge.

          Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

          Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Powell, P.J., Malone, J., and Lori A. Bolton Fleming, District Judge, assigned.

          Powell, J.

         As part of a plea agreement with the State, Brandon L. Fowler pled guilty to felony domestic battery, felony possession of methamphetamine, and misdemeanor violation of a protective order. Fowler now appeals his sentences, arguing for the first time that the sentencing court imposed an illegal sentence by "double counting" two of his prior person misdemeanor convictions to enhance his domestic battery conviction from a misdemeanor to a felony and to elevate his criminal history score. For reasons we more fully explain below, we disagree that Fowler's two prior misdemeanor domestic battery convictions were "double counted" and, therefore, affirm his convictions and sentences.

         Factual and Procedural Background

         On April 29, 2016, Fowler was charged with two felonies, domestic battery and possession of methamphetamine. The domestic battery offense was charged as a felony because Fowler had been convicted of domestic battery twice within the past five years. On July 28, 2016, the State amended its complaint and also charged Fowler with one count of violation of a protective order, a misdemeanor.

         Fowler and the State entered into a plea agreement. In exchange for Fowler's guilty plea to all three counts, the State agreed to recommend that Fowler be sentenced to: (1) the standard grid sentence for the primary crime of possession of methamphetamine and that the sentencing court follow the presumption-which the State believed to be probation with drug treatment; (2) 12 months in the county jail and a $1, 000 fine for domestic battery, with Fowler serving the mandatory 90 days in jail with work release authorized after 48 hours before being placed on probation; (3) 12 months in the county jail for violation of a protective order; and (4) concurrent sentences for all counts and with the sentences to run consecutive to any prior cases. Fowler also was to be allowed to argue for any lawful sentence. The district court accepted Fowler's plea.

         In the plea agreement, the State noted that it anticipated Fowler's criminal history score would be E. However, his presentence investigation (PSI) report listed six prior person misdemeanors which, when aggregated, were scored as two person felonies for the purpose of calculating Fowler's criminal history score. As a result, Fowler's criminal history score was actually calculated as B. This score had the effect of altering the anticipated presumption for the primary crime of possession of methamphetamine from presumptive probation to presumptive prison.

         Prior to sentencing, Fowler filed a motion for a dispositional departure and an objection to his criminal history. In his departure motion, Fowler argued he had a drug problem that would be better treated by Community Corrections rather than the Kansas Department of Corrections. Fowler also asserted that the State was not opposed to a dispositional departure to ...


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